nevada reports 1956 (72 nev.).pdf

72 Nev. 1, 1 (1956)

REPORTS OF CASES

DETERMINED BY

THE SUPREME COURT

OF THE

STATE OF NEVADA

_____________

VOLUME 72

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��72 Nev. 1, 1 (1956) Gardner v. Associated Contractors��

MERVIN L. GARDNER, Appellant, v. ASSOCIATED CONTRACTORS, Inc., E.K.

FERGUSON, Jr., REED C. FERGUSON and GORDON A. FERGUSON, Individually and

as Copartners Doing Business Under the Name and Style of FERGUSON BROS., a

Copartnership, Respondents.

No. 3897

January 4, 1956. 291 P.2d 1051.

Appeal from the Second Judicial District Court, Washoe County; Grant S. Bowen, Judge,

Department No. 1.

Action on a California judgment, wherein nonresident defendants moved to set aside a

general appearance made by attorney on their behalf as unauthorized and plaintiff

subsequently moved for default judgment against defendants for their failure to appear for

taking of depositions pursuant to notice given to attorneys appearing especially for them on

their motion. The lower court granted the motion to vacate the general appearance and denied

the motion for default judgment, and plaintiff appealed. The Supreme Court, Badt, J., held��

7��72 Nev. 1, 2 (1956) Gardner v. Associated Contractors��

that plaintiff could not compel taking of depositions of defendants as parties in Nevada on

their motion to set aside general appearance.

Affirmed.

Stewart & Horton, of Reno, for Appellant.

Pike & McLaughlin and Howard F. McKissick, Jr., of Reno, for Respondents Ferguson.

Joseph P. Haller, of Reno, for Respondent Associated Contractors, Inc.

1. Depositions. Depositions of a defendant who makes a special appearance may be taken. Rules of Civil Procedure, Rule

26(d).

2. Discovery; Judgment. On motion by nonresident defendants to set aside general appearance as unauthorized, plaintiff was not

entitled to take their depositions as parties in Nevada to inquire into facts relating to authorization of the

general appearance, and hence was not entitled to default judgment for their failure to appear for such

depositions. Rules of Civil Procedure, Rules 26(a, d), 28(a), 30(a, b), 37(d).

OPINION

By the Court, Badt, J.:

The only point of importance and seriousness involved in this appeal is whether the trial

court erred in granting the motion of E.K. Ferguson, Jr., Reed C. Ferguson and Gordon A.

Ferguson, individually, and as Ferguson Bros., a copartnership, all residents of California, to

vacate and set aside a general appearance purportedly made in their behalf, without first

considering plaintiff's motion for a default judgment against them in the sum of $54,237.87

for their failure to appear at the time and place set in Reno, Nevada, for the taking of their

depositions under notice given to the attorneys appearing specially on the motion. More

narrowly, on the motion of the nonresident defendants to set aside the purported ��


general appearance, assertedly made in the entire absence of authority, may the plaintiff, by

notice to the attorneys appearing for them specially for the purposes of such motion, take

their depositions, as parties, at Reno, Nevada, to inquire into the facts having to do with the

authorization or lack of authorization for the general appearance?

Plaintiff sued on a California judgment against all of the Fergusons as above named and

also joined Associated Contractors, Inc. upon an allegation that the Fergusons had

incorporated such company and transferred to it the possession of and title to its major assets.

Service of process was Made within the jurisdiction on the corporation but not on the

personal defendants, all of whom were residents of California. Thereafter Joseph P. Haller, a

Nevada attorney, filed a motion for extension of time for appearance of all defendants and it

is conceded that such motion constituted a general appearance. A few days thereafter the said

personal defendants, through their present counsel, Pike & McLaughlin and Howard F.

McKissick, Jr., filed a motion to set aside and vacate such appearance on the ground that it

had not been authorized by the Fergusons or any of them, and the motion was supported by a

number of affidavits which established prima facie that the appearance was without authority.

A few days later plaintiff noticed the taking of the depositions of the three Fergusons in Reno,

Nevada, under Rule 26(a) for the purpose of eliciting further facts as to the authority or lack

of authority of Mr. Haller to make the general appearance. Upon the failure of the Fergusons

to appear at the time and place fixed, plaintiff noticed his motion for the entry of their default

under Rule 37(d). Such motion and the motion to vacate the general appearance came on for

hearing before the district court at the same time. The court heard and granted the motion to

vacate the general appearance and then made and filed its order denying the motion for entry

of default judgment against the Fergusons.


[Headnote 1]

Plaintiff insists that the real issue is: “May depositions properly be taken of a defendant

who makes a special appearance?” We may agree with plaintiff's affirmative answer to this

question, N.R.C.P., Rule 26(d). Jiffy Lubricator Co. v. Alemite Co., D.C., 28 F. Supp. 385,

without at all solving the problem before us. If, relying on his own affirmative answer to his

own question, plaintiff had proceeded to take the depositions of the Fergusons under the

provisions of Rule 28(a) in California before an officer authorized to administer oaths in that

state, or before a person appointed by the district court in Washoe County, Nevada, and

procured the issuance from the clerk of the district court in Washoe County of a commission

or letters rogatory in the form prescribed by the California jurisdiction, and upon notice, and

the depositions were limited to the question of authority given by the Fergusons for a general

appearance in their behalf, it is hardly likely that any question would have arisen for our

determination.

Plaintiff, however, elected to proceed under the provisions of Rule 30(a) by serving a

notice upon the attorney who had filed the motion to set aside the general appearance, that he

would take the testimony of these nonresident defendants whose present addresses were

recited as being in Oakland, California, before a notary public in Reno, Washoe County,

Nevada, on the theory that, irrespective of their status as parties to the action, they were in

any event parties to the proceeding, that is, their motion to set aside the general appearance.

(Although the notice of taking the depositions of the Fergusons was general to the end that

the depositions would “be used as authorized by the Nevada Rules of Civil Procedure,” we

may accept appellant's statement that “the depositions were needed, of course, to investigate

the question of Mr. Haller's authority.”) When the Fergusons failed to appear in Reno at the

time and place set in the notice, plaintiff then proceeded under Rule 37(d) to serve and file his

motion for the entry of the default of said persons. Plaintiff insists ��


that having failed to take advantage of the provisions of Rule 30(b) to seek an order on

motion that the deposition be not taken, or that it be taken at some designated place other than

that stated in the notice, or be taken only on written interrogatories, or that its scope be

limited, or such other order required by justice to protect “the party or witness” from

annoyance, embarrassment or oppression, etc., the Fergusons, by their failure to appear,

deliberately invited the penalties of Rule 37(d).

[Headnote 2]

We find ourselves unable to agree with plaintiff's reasoning. Under it plaintiff might name

as defendants to an action nonresidents of the State of Nevada and, on the occasion of an

unauthorized appearance on their behalf or some kind of unauthorized service upon them, put

them to the necessity of making a showing that would relieve them from their apparent status

as defendants subject to the jurisdiction of the court. That, as suggested by plaintiff, they

might sit idly by, and thereafter, whether by direct action or by collateral attack, show that

they were not bound by any order or judgment made in the proceeding, by reason of the

court's lack of jurisdiction, is not persuasive. There is nothing unreasonable in their refusal to

assume such a status. Their natural alternative is to set it aside. That they could do this by

special appearance and without submitting to general jurisdiction is well recognized. That, in

doing this, they are subjecting themselves as parties to the necessity of coming from a foreign

jurisdiction into this jurisdiction to be examined as to whether or not they can in any event be

sued in this jurisdiction cannot have been contemplated by the provisions of N.R.C.P. Indeed,

quite the contrary would appear to be contemplated by the penalty imposed by Rule 37(d), the

entry of a default judgment for failure to appear for deposition, which is in itself an incident

of the court's general jurisdiction of the parties.

In Petroleum Financial Corp. v. Stone, D.C., 111 ��


F.Supp. 351, 353, there were before the court motions to vacate the service of summons (on

the ground that the federal district court and the courts of the state were without jurisdiction

over the defendants, as they were citizens of a foreign state not engaged in business in New

York) and to vacate plaintiff's notice of taking depositions in New York. The court, in ruling

on these motions, said:

“Plaintiff now seeks by the taking of depositions in New York to obtain further

information to support its contention that H. C. Cockburn and the Cockburn Oil Corporation

have been doing business in New York but it is unwilling to pay the costs for the deponents

to come here from Texas. Even if the costs were to be borne by the plaintiff, it would appear

that in seeking the depositions for this purpose, plaintiff is attempting to pull itself up by its

own bootstraps. Absent the prior finding that the Cockburn Oil Corporation and H. C.

Cockburn were doing business in this state, through Lee B. Stone, upon whom personal

process is served, this Court would be exceedingly reluctant to exercise its discretion under

Federal Rule 30(b) to compel parties to come to New York from Texas to determine whether

this court in fact has jurisdiction over them. The plaintiff is, of course, at liberty to take such

depositions in Texas * * *. The motion of defendants to vacate the services of summonses

will be granted unless plaintiff, within 30 days after the entry of the order hereon, submits to

the court additional facts supplying the elements of ‘doing business' not now before me, if

such facts be obtained.”

It will be noted that there, as here, the purpose sought by the depositions was to elicit facts

involved in the question of jurisdiction, that is, whether the defendants were doing business in

New York. If they were, they were subject to the jurisdiction. So here, if the general

appearance was authorized the Fergusons had voluntarily subjected themselves to the

jurisdiction. But to compel them to come into the jurisdiction for the purpose of ascertaining

whether the jurisdiction existed ��!� ��"��#��"�� $


was characterized as an attempt by plaintiff “to pull itself up by its own bootstraps.”

We are entirely in accord with the reasoning of that case, and accordingly find no error in

the rulings made by the district court.

The order and judgment appealed from are affirmed with costs.

Merrill, C. J., and Eather J. concur.

____________

��72 Nev. 7, 7 (1956) McCleary Timber Co. v. Sewell��

HENRY McCLEARY TIMBER COMPANY, a Corporation, Appellant, v. C.A. SEWELL

and ORENE H. SEWELL, His Wife, Respondents.

No. 3912

January 9, 1956. 292 P.2d 197.

Appeal from the Sixth Judicial District Court, Humboldt County; Frank B. Gregory,

Presiding Judge.

(See also 72 Nev....., 301 P.2d 1047.)

Motion to strike opening brief of appellant.

Motion denied.

James A. Callahan, of Winnemucca, and Anderson, Kaufman & Anderson, of Boise,

Idaho, for Appellant.

Orville R. Wilson, of Elko, for Respondent.

1. Appeal and Error. Where in appeal has not been perfected in the Supreme Court within the time provided by the rule prior

to the promulgation of the present rules, the court has regarded as a waiver of the default, the failure of

respondent to move to dismiss until after the default had been cured by tardy filing of the record.

2. Appeal and Error. Motion to strike an opening brief on ground that it was not filed in the time prescribed would be denied,

where delay was but for one week, no prejudice was shown to have resulted to the respondent and had an

application been made to the Supreme Court for an extension of time it undoubtedly would have been

granted. Supreme Court Rules, Rule 11, subd. 7, Rules of Civil Procedure, Rule 1 et seq.


3. Appeal and Error. That brief in making references to evidence of proceedings, fails to designate where in the record such

might be found, is not ground for striking the brief, although under the rule the court could ignore the point

made. Supreme Court Rules, Rule 11.

OPINION

On Motion to Strike Brief

Per Curiam:

This matter is before us on motion of respondents to strike the opening brief of appellant

now on file in this court, upon the ground that appellant had failed to file the same within the

time prescribed. The brief was due November 10, 1955 and was filed November 17, 1955. In

opposition to the motion counsel for appellant have filed an affidavit explaining the reasons

for the delay in filing.

This court has had occasion recently to express to the members of the bar its concern with

the delays in briefing which have become almost a matter of standard practice. In this respect

it is anticipated that Rule XI, paragraph 7 of the rules of this court, will shortly be amended.

Notwithstanding our general feeling in this regard and with no intent to establish precedent as

to practice under any amendment to Rule XI which may be had, it is our view that the motion

before us must be denied. Several considerations combine to impel us to this conclusion.

[Headnote 1]

1. Where an appeal has not been perfected in this court within the time provided by rule,

this court in the past (prior to the promulgation of N.R.C.P.) has regarded as a waiver of the

default the failure of respondent to move to dismiss until after the default had been cured by

tardy filing of the record. Squires v. Mergenthaler Linotype Co., 60 Nev. 62, 99 P.2d 20;

Styris v. Folk, 62 Nev. 208, 130 P.2d 614, 146 P.2d 782; Hotels El Rancho v. Pray, 64 Nev.

22, 176 P.2d 236. Cf. Goodhue v. Shedd, 17 Nev. 140, 30 P. 695; Adams v.��


Rogers, 31 Nev. 150, 101 P.317; Padilla v. Mason, 53 Nev. 226, 296 P. 1083; Roberts v.

Roberts, 63 Nev. 459, 174 P.2d 611. While the rule may well now be different under

N.R.C.P. so far as concerns the filing of record and docketing of appeal, the filing of briefs

remains governed by our supplementary rules of court and the cited authorities would still

appear to be pertinent to our exercise of discretion in such cases.

[Headnote 2]

2. Although the affidavit filed by counsel for appellants can hardly be said to make out a

clear case of excusable neglect, still the case made out does serve to dispel any question of

lack of good faith in the prosecution of the appeal.

3. The delay was but for one week. (By previous stipulations extensions totaling three

weeks had been granted.) No prejudice has been shown to have resulted to the respondent.

Had application been made to this court for an extension of time for the reasons stated in

appellant's affidavit it undoubtedly would have been granted. Hotels El Rancho v. Pray, 64

Nev. 22, 176 P.2d 236.

Under all of the circumstances we feel that justice demands that the motion upon this

ground should be denied.

[Headnote 3]

As a further ground for striking the brief respondents assert that the brief, whenever

making reference to evidence or proceedings, fails to designate where in the record the

evidence or matter may be found, contrary to the requirement of Rule XI of this court. We do

not regard this as a ground for striking the brief. Rule XI states that for failure to comply with

this requirement the court may ignore the point made. Whether we choose to exercise our

discretion in this manner remains for future decision.

Motion denied. Respondents shall have 15 days from date within which to answer the

opening brief of appellants.

____________

��72 Nev. 10, 10 (1956) Smilanich v. Bonanza Air Lines��

MILTON G. SMILANICH, Appellant, v. BONANZA AIR LINES, Inc., Respondent.

No. 3911

January 10, 1956. 291 P.2d 1053.

Appeal from judgment and order of the Eighth Judicial District Court, Clark County; A. S.

Henderson, Judge, Department No. 2.

Proceeding on motion by defendant to dismiss plaintiff's appeal on ground appeal was not

taken within 30 days of judgment. The Supreme Court held, inter alia, that plaintiff's filing of

motion for relief from judgment did not terminate or suspend the running of time for appeal

from summary judgment entered against him.

(See also 72 Nev......, 298 P.2d 819.)

On motion to dismiss appeals, appeal from judgment dismissed. Motion to dismiss

appeal from order denied.

Vargas, Dillon & Bartlett, and Alex A. Garroway, of Reno, for Respondent.

Emilie N. Wanderer, of Las Vegas, for Appellant.

1. Appeal and Error. Plaintiff's filing of motion for relief from judgment did not terminate or suspend the running of time for

appeal from summary judgment entered against him. Rules of Civil Procedure, Rules 60(b), 73(a).

2. Appeal and Error. An order denying relief from judgment is appealable.

OPINION

Per Curiam:

This matter is before us on motion to dismiss the appeal upon the ground that it was not

taken within 30 days of judgment as provided by Rule 73(a) N.R.C.P.

Summary judgment in favor of respondent was entered by the trial court on April 25, 1955.

Notice of ��%� �� &��'(��)*++�


that judgment was served on appellant April 26, 1955. On May 18, 1955 appellant filed a

motion for relief from final judgment under Rule 60(b) N.R.C.P. On June 24, 1955 the

motion was denied by order of the trial court. Notice of appeal from judgment and order was

filed July 25, 1955.

[Headnote 1]

Clearly the appeal from summary judgment was not taken within the time prescribed.

Appellant contends that the filing of the motion for relief from judgment suspended the

running of time for appeal until after disposition of such motion. Rule 73(a) specifies the

motions which are to have this effect. A motion under Rule 60(b) is not included. Rule 60(b)

specifically states “a motion under this subdivision (b) does not affect the finality of a

judgment or suspend its operation.” The motion, then, did not terminate or suspend the

running of time for appeal from summary judgment and that appeal has not been taken within

the time provided. See 6 Moore's F.P., 123, sec. 54.12(2).

[Headnote 2]

The appeal from the order denying relief from judgment was taken within 30 days. It is

conceded that the order is an appealable order. Greenspahn v. Seagram & Sons, 2 Cir., 186

F.2d 616; See 7 Moore's F.P., 341, sec. 60.30(3).

The appeal from the summary judgment is hereby dismissed. Motion to dismiss the appeal

from order denying relief from judgment is hereby denied. Appellant shall have 15 days from

date hereof within which to file opening brief upon his appeal from said order.

____________

��72 Nev. 12, 12 (1956) Garibaldi Bros. Trucking Co. v. Waldren��

GARIBALDI BROS. TRUCKING CO., A Corporation, and CHARLES F. THOMAS,

Appellants, v. HELEN WALDREN, Respondent.

No. 3899

January 19, 1956. 292 P.2d 356.

Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,

Department No. 2.

On motion to dismiss appeal.

The Supreme Court held that affidavits filed by appellants in opposition to respondent's

motion to dismiss appeal disclosed that appellants' late filing of record on appeal, without

obtaining of proper order of extension, was due to excusable neglect.

Motion denied.

Vargas, Dillon & Bartlett and Springer & McKissick, of Reno, for Appellants.

Leslie E. Riggins, of Reno, for Respondent.

Appeal and Error.

Affidavits filed by appellants in opposition to respondent's motion to dismiss appeal disclosed that

appellants' late filing of record on appeal, without obtaining of proper order of extension, was due to

excusable neglect. Rules of Civil Procedure, Rule 73(a, g).

OPINION

Per Curiam:

Respondent has moved under Rule 73(a) 1 N.R.C.P. to dismiss the appeal of appellant for

untimely filing of �� ,�� "��-��'�

____________________

1 “* * * Failure of the Appellant to take any of the further steps to secure the review of the judgment

appealed from does not affect the validity of the appeal, but is ground only for such remedies as are specified in

this rule or, when no remedy is specified, for such action as the appellate court deems appropriate, which may

include dismissal of the appeal. * * *.”


the record on appeal, as required by Rule 73(g) 2 . The chronology of the pertinent filings etc.

is as follows:

Feb. 5, 1955—Judgment.

Feb. 9, 1955—Notice of judgment.

Feb. 19, 1955—Motion for new trial.

April 1, 1955—Notice of denial of motion for new trial.

May 2, 1955—Notice of appeal and bond on appeal.

June 2, 1955—Clerk's record on appeal certified.

June 11, 1955—Time to file record expires.

June 14, 1955—Supersedeas bond filed.

July 5, 1955—Transcript of proceedings certified by court reporter.

July 5, 1955—District judge's order extending time to July 20 to file record.

July 20, 1955—Record on appeal filed (39 days late).

In support of her motion to dismiss the appeal respondent relies on Doolittle v. Doolittle,

70 Nev. 163, 262 P.2d 955, Bank of Nevada v. Drayer-Hanson, 70 Nev. 416, 270 P.2d 668;

and Cole v. Cole, 70 Nev. 486, 274 P.2d 358. Appellants maintain that the delay in filing the

record was the result of excusable neglect and have filed sundry affidavits from which the

following facts appear: During the second week of May, 1955, Mr. Howard F. McKissick, Jr.

was contacted by Mr. John C. Bartlett who stated that by reason of his heavy court calendar

he would appreciate help in briefing the case for this court. Mr. McKissick was at the time

employed by the firm of Pike & McLaughlin, but advised of his intention to form a new

partnership on June 1, )*++��

____________________

2 “The record on appeal as provided for in Rules 75 and 76 shall be filed with the appellate court and the

appeal there docketed within 40 days from the date of filing the notice of appeal; * * * In all cases the district

court in its discretion and with or without motion or notice may extend the time for filing the record on appeal

and docketing the appeal, if its order for extension is made before the expiration of the period for filing and

docketing as originally prescribed or as extended by a previous order; but the district court shall not extend the

time to a day more than 90 days from the date of filing the first notice of appeal.”


1955 and anticipated that he would have time after that date. On May 12 designation of

contents of record on appeal and order for transmittal of original papers to the supreme court

were prepared and filed and on May 12 respondent designated two additional items for

inclusion in the record. During all of June and the first part of July the court reporters were

continually engaged and had a number of transcripts to prepare, in addition to which some of

their transcribing machinery had broken down but they reported to attorney Bartlett the

probability that the transcript would be prepared in time. After filing the bond on appeal,

appellants submitted a net worth statement of the appellants in the thought that under the

showing thereof a supersedeas bond might be waived. On June 2 respondent declined to

waive a supersedeas and the same was furnished June 14. During the first week in July

attorney McKissick learned from the court reporters that the transcript had not been prepared

and that the 40-day limitation of the rule had expired. He also learned that attorney Bartlett

had been out of town for several weeks and that Bartlett had anticipated either that the

complete record would have been prepared and docketed or that attorney McKissick would

have obtained an extension. McKissick, however, on this his first appeal, thought that the

time had not expired or that an extension had been obtained or that, under the California

practice, the court reporter, unable to complete the transcript in time, would have obtained the

extension. At once, on July 5, as noted, an order extending time for filing the transcript to

July 20 was presented to and signed by Judge Maestretti, who expressed his misgivings at the

time. On July 8 the record was ready for filing, but attorney McKissick, confronted with the

costs of transmission of the extensive record to Carson City, decided to carry the record there

personally at the time of meeting a trial engagement in Carson City on July 20, on which date

the record was filed. Six days thereafter, on July 26, 1955, respondent filed her motion to

dismiss the appeal and gave notice by mail.


The delay above noted from July 8 to July 20 could and should of course have been

avoided. There was also a delay from the appeal of May 2 to the ordering of the transcript

from the reporter on May 13, but this delay of eleven days for such purpose (still leaving

some 30 days available) would not in itself, in our opinion, constitute neglect.

Appellants do not seriously urge that the district court's order of July 5 extending the time

(which had expired on June 11) to July 20 to file the record was effective for that purpose.

Rule 73(g); United States v. Gallagher, 9 Cir., 151 Fed.2d 556; Citizens' Protective League v.

Clark, 85 U.S. App. D.C. 282, 178 Fed.2d 703. They do maintain however that a very

persuasive case of excusable neglect has been shown not only in the untimely filing of the

record but also in the failure to obtain an order of extension as permitted by the appropriate

rules. Without detracting to any extent whatsoever from the force of our opinions in the

Doolittle, Drayer-Hanson and Cole cases, supra, we are inclined to exercise our discretion to

the extent of holding that a case of excusable neglect has been shown. The three named cases

in which we dismissed the respective appeals were based on facts differing substantially from

those appearing here, in which no substantial prejudice will result, in which many of the

circumstances were unavoidable, in which it was at all times manifest that appellants desired

and intended in good faith to perfect their appeal, in which there was no long delay (beyond

the unavoidable delay in the court reporter's transcribing of the proceedings), and in which we

find the neglect excusable. There can be no doubt but that an order of extension would, if

sought, have been automatically granted. Hotels El Rancho v. Pray, 64 Nev. 22, 176 P.2d

236.

The motion to dismiss is denied and appellants are given fifteen days from date within

which to serve and file their opening brief on the merits.

____________

��72 Nev. 16, 16 (1956) Eastman Kodak Co. v. Holmes��

EASTMAN KODAK COMPANY, Inc., Appellant, v. I. B. HOLMES, Also Known as BUD

HOLMES, Respondent.

No. 3891

January 30, 1956. 92 P.2d 860.

Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,

Department No. 2.

Action was brought on first cause of action on a merchandise account and on second cause

of action on defendant's check, which defendant had knowingly drawn on bank account

having insufficient funds to meet it, and which defendant had delivered to plaintiff as a

payment on the merchandise account. The defendant made a motion for summary judgment

on ground that he had been discharged in bankruptcy. The lower court entered summary

judgment, and the plaintiff appealed. The Supreme Court held that the second cause of action

was discharged in bankruptcy, because not based on fraud.

Affirmed.

Emilie Wanderer, of Las Vegas, for Appellant.

I.B. Holmes, Respondent in pro. per.

1. Bankruptcy. Cause of action on defendant's check, which defendant had knowingly drawn on a bank account having

insufficient funds to meet the check, and which defendant had delivered to plaintiff in payment on

merchandise account, was discharged in bankruptcy, because not based on fraud.

2. Costs. Where respondent's only allowable costs would be the cost of typewriting respondent's brief, and such

brief was of no assistance to Supreme Court on appeal, no costs would be allowed respondent.

OPINION

Per Curium:

[Headnotes 1, 2]

To plaintiff's complaint on its first cause of action for a judgment for $1,687.69 on a

merchandise account, and �� .��/)�'��

��72 Nev. 16, 17 (1956) Eastman Kodak Co. v. Holmes��

on its second cause of action on defendant's check for $1,200, knowingly drawn on a bank

account having insufficient funds to meet it and which he had delivered to plaintiff as a

payment on said account, defendant pleaded his discharge in bankruptcy and moved for

summary judgment, showing that the debt to plaintiff had been listed in his schedules. From

the judgment rendered on such motion plaintiff has appealed, asserting that the second cause

of action was based on fraud, and was therefore not discharged in bankruptcy. Plaintiff's only

damage resulting from the alleged “fraud” would appear to be its disappointment when the

check was returned for insufficient funds. Morris Plan Bank v. Baggarly, 68 Ga.App. 714, 23

S.E.2d 271. Judgment affirmed. As respondent's only allowable costs would be the cost of

typewriting his brief, and as such brief was of no assistance to the court, no costs are allowed.

____________

��72 Nev. 17, 17 (1956) Broomfield v. Koval��

DON BROOMFIELD and EVELYN BROOMFIELD,

Appellants, v. A.J. KOVAL, Respondent.

No. 3860

January 31, 1956. 292 P.2d 1073.


Department No. 2.

Action to recover the balance due upon a construction of a motel with defense and

counterclaim that plaintiff negligently failed to place the motel upon the lot where it should

have been placed. Judgment for plaintiff, and the defendants appealed. The Supreme Court,

Eather, J., held that the evidence sustained the judgment for plaintiff.

Affirmed.

Milton W. Keefer and Paul L. Larsen, of Las Vegas, for Appellants.

Robert M. Callister, of Las Vegas, for Respondent.


1. Appeal and Error. Where the appeal presents questions of fact, findings of the trial court will be sustained if there is any

substantial evidence in the record supporting them.

2. Contracts. In action to recover the balance due upon a contract for construction of a motel with defense that plaintiff

failed to place the motel upon the lot where it should have been placed, evidence sustained judgment for

the plaintiff.

OPINION

By the Court, Eather, J.:

This is an action brought to recover the balance due upon a contract for construction of a

motel located in Las Vegas, Clark County, Nevada. The defense of the defendants which also

formed the basis of a counterclaim for damages, is that the plaintiff negligently and in

violation of contract failed to place the motel upon the lot where it should have been placed.

The trial court found against the defendants upon this proposition and they have brought this

appeal contending that the evidence does not support that finding.

On order made on written stipulation, the case was submitted on the briefs and without

oral argument. We refer to the parties as they appeared in the court below.

It appears that the defendants own property fronting for 200 feet upon Fremont Street. The

property was not subdivided into lots but it had been surveyed and a center line had been

established. Defendants testified that it was the understanding between the parties that the

motel should be placed upon the east half of the property so that the remaining half in its

entirety could be held for speculation. Upon completion of the motel it was found to cross the

center line, encroaching upon the west half 7.60 feet.

Even accepting these facts, however, the testimony of the plaintiff clearly supports the

finding of the trial court. According to the plaintiff the defendants told him �� "��


where to place the motel and he placed it where they had told him to place it. He states when

he had received his instruction in this respect there were two marker stakes upon the property

purporting to establish the center line; that these stakes were pointed out to him by defendants

and he was told by them to build a motel parallel to the line established; that he did so; that it

was later determined that the marker stakes had been improperly fixed. The trial court

accepted this testimony. Accepting its truth, in our view, it eliminates all question of a duty

upon the plaintiff to determine for himself the proper location of the motel.

[Headnotes 1, 2]

In the case of Friendly v. Larson, 62 Nev. 135, 144 P. 2d 747, it is stated: “The appeal

presents almost exclusively questions of fact which have been resolved in favor of

respondents by the trial court, and, of course, the findings of the trial court will be sustained if

there is any substantial evidence in the record supporting them.”

Judgment affirmed with costs.

Merrill, C. J., and Badt, J., concur.

____________

��72 Nev. 20, 20 (1956) Boswell v. Board of Medical Examiners��

LOUIS K. BOSWELL, Jr., Petitioner, v. BOARD OF MEDICAL EXAMINERS OF THE

STATE OF NEVADA, GEORGE ROSS, THEODORE ROSS, LESLIE MORAN,

STANLEY HARDY AND KENNETH MACLEAN, Respondents.

No. 3913

February 1, 1956. 293 P.2d 424.

Original petition for writ of prohibition to prohibit respondents from trying petitioner on

charges of unprofessional conduct looking toward the revocation of his license to practice

medicine in Nevada.

The Supreme Court, Badt, J., held that doctor's language harshly critical of other doctors

practicing in county and of entire local medical profession did not warrant revocation of

doctor's license.

Petition granted.

Royal A. Stewart and Richard W. Horton, of Reno, for Petitioner.

Summerfield & Heward, of Reno, for Respondents.

1. Physicians and Surgeons. Act conferring jurisdiction on medical boards to revoke a physician's license finds justification in police

power of state to protect health, safety or morals. N.C.L.1943-1949 Supp., sec. 4107.15.

2. Physicians and Surgeons. A doctor's language harshly critical of other doctors practicing in county and of entire local medical

profession did not warrant revocation of doctor's license. N.C.L.1943-1949 Supp., sec. 4107.15.

OPINION


The question presented by this petition is: May the board of medical examiners proceed to

try a duly licensed doctor of medicine on charges of unprofessional conduct because of

harshly critical language (as more ��"��,��


particularly set forth in the specific charges hereinafter quoted) directed by him at the three

other doctors practicing in the county and at the entire local medical profession? Further: Did

the statements, in the words and under the circumstances as charged, bear such a threat to the

public health, safety, morals or welfare as to justify the license revocation proceeding? We

answer both questions in the negative, and conclude that the writ of prohibition sought must

be issued.

The state board of medical examiners cited Dr. Louis K. Boswell, authorized July 15, 1954

to practice medicine in Nevada, to appear before it and answer charges of unprofessional

conduct—”conduct unbecoming a person licensed to practice medicine or detrimental to the

best interest of the public,” 1 because of specific statements made by him.

Dr. Boswell is engaged in practice in Yerington, Lyon County. Besides him three other

doctors, licensed to practice medicine, are engaged in practice in that community and county.

The charges of the medical board specify conversations had with six persons, in which Dr.

Boswell made statements reflecting upon the standard of medical practice in the county and

upon nursing practices and insultingly reflecting upon the abilities of the other three doctors.

The first doctor he referred to as the “city drunk.”

____________________

1 N.C.L., sec. 4107.15, 1943-1949 Supp.: “The board shall refuse a certificate to any applicant guilty of

unprofessional conduct, and for like cause it may revoke any certificate, either permanently or temporarily, and

suspend the party so found guilty from the practice of medicine either permanently or for a time determined by

the board. The words ‘unprofessional conduct,' as used in this act, are declared to mean: * * * Conduct

unbecoming a person licensed to practice medicine or detrimental to the best interest of the public.'” The same

section declares “unprofessional conduct” to include such things as obtaining a certificate upon fraudulent

credentials, procuring a criminal abortion, obtaining a fee on assurance that a manifestly incurable disease can be

permanently cured, conviction of felony, administering of drugs otherwise than in the course of legitimate

professional practice, habitual intemperance, excessive use of drugs, employing an unlicensed practitioner, gross

negligence in the practice, adjudication of insanity, etc.


The second he designated “nothing but a lousy old midwife” who had “probably killed more

patients in this valley than she ever helped”; who never performed operations but treated her

patients who were suffering from appendicitis with a high, hot enema; who had left a large

percentage of the women of the county with their “insides hanging out” due to the butchery to

which they were exposed under her care; who left all women she delivered with rectoceles

and cystoceles; and who had bled the people of the community for all money possible for care

that was inadequate.

Dr. Boswell was for awhile associated in practice with the third doctor. He terminated the

association and later stated that that doctor had been incapable of handling the medical work

Dr. Boswell had expected of him and could not maintain Dr. Boswell's high standards of

practice.

Reflecting generally upon medical standards were statements by Dr. Boswell to the effect

that the standard of medical practice throughout the west was so low as to be a national

disgrace but that doctors from the east were gradually bringing the standards up to average;

that the people of Lyon County had never known what good ethical medical practice was

until he came; that he was appalled at the great amount of surgery to be done upon the women

of the county; that all he had examined who had had children during the past 40 years had

received improper medical care and were in need of surgery; that he was “tickled pink” at the

situation, as he would have these women as his patients.

As to nurses he stated that those at the local hospital were “a lousy bunch.” Specifically he

had falsely accused one nurse of “jimmying” an X-ray machine at the hospital so that he

could not use it and on one occasion of leaving the operating table at a critical point in an

operation which had unduly lengthened the operating time.

The six persons to whom he had made these statements were: the doctor with whom he

had been associated, that doctor's wife, a registered nurse, a licensed �� "�� "��"��


pharmacist and two women unidentified save by name who may or may not have been his

patients.

The board made other charges which it concedes are so general in their present form as to

relieve Dr. Boswell of obligation to answer and, therefore, are not here considered.

Whatever words one might be disposed to use in characterizing the language employed by

Dr. Boswell—harsh, vicious, caustic, bitter, unrestrainedly critical, egotistical, uncharitable,

unpleasant, vulgar, slanderous, etc.—and whatever may be the remedies on the part of the

persons against whom the remarks were directed, the question for our determination remains

unanswered. Did these statements (which we must assume, under the petition, to have been

made as charged) made under the circumstances above recited, constitute unprofessional

conduct within the purview of sec. 4107.15 N.C.L., 1943-1949 Supp.? Did they constitute

“conduct unbecoming a person licensed to practice medicine or detrimental to the best

interest of the public”? The board's theory in answering the above question in the affirmative

is best illustrated by its quotation from 41 Am.Jur. 181, as follows: “The misconduct, bad

character, or immorality for which the license of a physician * * * may be revoked need not

necessarily be connected with his profession, practice or patients; it is enough if it relates only

to his personal life.” We need not debate this—under properly applicable facts, but turn

directly to the one case upon which respondents rely, State Board of Medical Examiners v.

Spears, 79 Colo. 588, 247 P. 563, 566, 54 A.L.R. 1498, in which a chiropractor, for the

purpose of increasing his own business and income, printed and published false charges that a

hospital caused the death of a patient by inhuman treatment. Petitioner distinguishes this case

for the reason that the court's emphasis was upon the printing and publication of the false

charges and that such charges were made for the purpose of increasing the petitioner's own

business and income, while in the case at bar the statements were �� 0��


made in private conversation, in large part with persons with whom Dr. Boswell was

professionally associated and to whom he might be expected to express a critical professional

opinion. We find a further distinction in the fact that the Spears case, reaching the Colorado

supreme court on certiorari, was never decided on the merits by that court. That court limited

itself to the finding that the medical board had jurisdiction and did not abuse its discretion or

fail regularly to pursue its authority—the only questions which, under its rules and practice,

the supreme court of Colorado could consider. The court said: “We must accept the finding of

the medical board, and the trial court should have accepted it as a verity, that defendant's

conduct bore such an intimate relation to the public health and public morals as to justify the

finding that the respondent's conduct was unprofessional and dishonorable * * * neither the

district court nor this court may enter upon the investigation of the merits, or inquire if the

board made a mistake in its findings of fact, or erred in its conclusions upon the facts.” Such,

however, is not the rule in Nevada. Van Heukelom v. Nevada State Bd. of Chiropractic

Examiners, 67 Nev. 649, 224 P.2d 313; Richardson, State ex rel. v. Board of Regents of

University of Nevada, 70 Nev. 347, 269 P.2d 265.

Other cases are cited by respondents. The bad character, the unprofessional and

unbecoming conduct, the gross immorality of the licensees in the cases cited and in the cases

mentioned in footnote 1 at once suggest necessary measures for protection of the public, but

afford no precedent supporting the charges here made as grounds for the revocation of a

license to practice medicine.

[Headnotes 1, 2]

Acts of the legislature like the one in question, conferring jurisdiction on medical boards

to revoke a physician's license, find their justification in the police power of the state to

protect the public health, safety or morals. Hewitt v. State Medical Examiners, 148 Cal.


590, 84 P. 39, 3 L.R.A., N.S., 896. Only two suggestions are made by the board to bring this

case within such justification. First, it is suggested that the patients of the criticized

physicians may be caused to lose confidence in them and their recovery be retarded by reason

of such loss of confidence. Secondly, it is urged that a doctor who is so harsh and

unrestrained in his language is thereby demonstrated to be a person of such character that he

should not be licensed to practice medicine, and that the practice of medicine by a person of

such character is detrimental to the best interest of the public. Neither argument is sound and

the board has cited no case in which such principle has been enunciated. It has never been

held that the public health, safety or morals requires protection through the suppression of

criticism of individual doctors or criticism of the medical profession as a whole, no matter

how harsh the terms in which such criticism is expressed. The common sense and sound

judgment of the public in its reaction to unwarranted or unjust criticism of individual doctors

or of the medical profession affords a far better protection than the one sought here by the

board of medical examiners. Public reaction may indeed be a resentment, not against the

criticized doctors and not against the criticized profession, but against the person making the

charges if such charges are considered to be unjust or unfair or without justification. Neither

the right of individual practitioners to protect themselves nor the right of the medical

profession to protect itself may be promoted under the provisions of a statute whose sole

purpose is the protection of the public, and whose sole justification lies in the police power of

the state exercised to that end.

It is ordered that the petition be and the same hereby is granted, and that the writ issue as

prayed for.

Merrill, C. J., and Eather, J., concur.

____________

��72 Nev. 26, 26 (1956) Byers v. Lockitch��

LELAND BYERS, FRANK A. TAYLOR, and MARVIN SCHIFF, Appellants, v. REUBEN

J. LOCKITCH, Respondent.

No. 3879

February 2, 1956. 292 P.2d 1071.


Department No. 2.

Action by host motorist, guest passenger, and owner of parked automobile against other

motorist for injuries sustained to person and property when host automobile collided with

other motorist's automobile and then swerved into parked automobile while host motorist was

attempting to bring host automobile under his control. The lower court entered judgment for

other motorist, and plaintiffs appealed. The Supreme Court, Merrill, C. J., held that evidence

was not sufficient to sustain finding that guest passenger was guilty of contributory

negligence but was sufficient to establish that other motorist's negligence contributed to

collision with host automobile and that collision between such automobiles was proximate

cause of injury to parked automobile.

As to appellant Taylor, affirmed. As to appellants Byers and Schiff, reversed and

remanded for new trial.

Robert M. Callister, of Las Vegas, for Appellants.

George E. Marshall, of Las Vegas, for Respondent.

1. Automobiles. In action by host motorist, guest passenger, and owner of parked automobile against other motorist for

injuries sustained to person and property when host automobile collided with other motorist's automobile

and then swerved into parked automobile while host motorist was attempting to bring host automobile

under his control, evidence was sufficient to sustain trial court's finding that host motorist was guilty of

contributory negligence in driving at an excessive speed.



and then swerved into parked ��


automobile while host motorist was attempting to bring host automobile under his control, evidence was

not sufficient to sustain finding that guest passenger was guilty of contributory negligence.



and then swerved into parked automobile while host motorist was attempting to bring host automobile

under his control, evidence was sufficient to establish that other motorist's negligence contributed to

collision with host automobile and that collision between such automobiles was proximate cause of injury

to parked automobile.

OPINION

By the Court, Merrill, C. J.:

This is an appeal from judgment for the defendant in a personal injury action brought by

the three appellants.

Appellant Taylor was the driver of a car involved in a collision with a car of respondent

Lockitch in Las Vegas. As a result of the collision the Taylor car was forced to its left. Taylor,

in attempting to bring the car under control, swerved back to his right and the car passed over

the curb of the street and in doing so struck and damaged a parked automobile belonging to

appellant Schiff. In one action the complaints of three plaintiffs are joined against Lockitch.

Taylor brought action for property damage to his automobile and for personal injuries

suffered by himself. Schiff brought action for property damage to his automobile. Appellant

Byers, a passenger in Taylor's automobile, brought suit for personal injuries suffered by

himself.

The case was tried to the court below without a jury, and judgment in favor of the

defendant was rendered as to all three of the plaintiffs. Upon this appeal by those plaintiffs it

is asserted that there is no evidence to support the findings and judgment in favor of the

defendant.


[Headnote 1]

As to Taylor, defendant opposed his action upon the ground of contributory negligence.

The court found that Taylor was guilty of contributory negligence in driving at an excessive

rate of speed. There is support for such finding in the record. Judgment in favor of defendant

Lockitch upon this cause of action must be affirmed.

[Headnote 2]

As to Byers the answer of the defendant states as an affirmative defense that the driver,

Taylor, was guilty of contributory negligence and that this contributory negligence is imputed

to his passenger, Byers. This defense was abandoned. After judgment was rendered from the

bench and before findings of fact were signed, the court permitted Lockitch to amend his

answer with reference to Byers ostensibly to conform to the proof. This amendment was to

the effect that Byers was himself guilty of contributory negligence. The finding of the trial

judge upon this point was also to the effect that Byers was guilty of contributory negligence.

We have been unable to find in the record anything to support such a finding, nor any proof

of contributory negligence on the part of Byers to which the amendment might conform, nor

has the defendant been able to direct our attention to such proof. We must conclude that it

was error to have permitted the amendment and that the finding is wholly without support.

Upon this cause of action the trial court must be reversed.

[Headnote 3]

As to Schiff, the finding of the trial court was that the manner in which Lockitch had

driven his automobile was not the proximate cause of the injury to the Schiff car. It is

impossible from the record or from briefs of counsel to determine upon what basis the court

proceeded in making this finding or upon what basis the finding can be supported by the

record. An examination of the opinion of the trial judge from the bench at the conclusion of

the trial indicates clearly that in his mind ��1�"�� 2�� "��


both Taylor and Lockitch were guilty of negligence and that the negligence of each had

contributed to the collision between their two cars. The record leaves no room for doubt but

that that collision between the Taylor and Lockitch cars was the direct and proximate cause of

the injury to the Schiff car. It is not argued that there was any intervening cause or that

damage to the Schiff car for any reason should be held to have been unforeseeable.

Accepting, as we must, from the state of the record and the expressions of the trial judge, that

the negligence of Lockitch contributed to the collision with the Taylor car, we are unable to

find support in the record for the finding that this negligence was not the proximate cause of

the injury to the Schiff car.

As to appellant Taylor the judgment is affirmed. As to appellants Byers and Schiff

judgment is reversed, with costs, and the matter remanded for new trial.

Badt and Eather, JJ., concur.

____________

��72 Nev. 29, 29 (1956) Corey v. Corey��

CONCETTA E. COREY, Appellant, v. JOSEPH F.

COREY, Respondent.

No. 3887

February 2, 1956. 292 P.2d 1073.

Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,

Department No. 1.

Divorce action. The lower court entered decree in favor of the plaintiff-husband, and an

appeal was taken. The Supreme Court, per curiam, held that since record on appeal contained

no transcript of testimony taken at time of trial and no statement of evidence, appellant had

wholly failed to provide reviewing court with means for considering merits of her contention

that in two respects findings were unsupported by evidence and accordingly decree would

have to be affirmed.

Affirmed.

��72 Nev. 29, 30 (1956) Corey v. Corey��


R. Dale Cook, of Las Vegas, for Respondent.

Divorce.

Where record on appeal contained no transcript of testimony taken at time of trial and no statement of

evidence, appellant wholly failed to provide reviewing court with means for considering merits of her

contention that in two respects findings were unsupported by evidence in divorce suit, and accordingly

decree was affirmed. Rules of Civil Procedure, Rule 75(n).

OPINION

Per Curiam:

This is an appeal from decree of divorce granted in favor of the plaintiff husband. The

appeal is brought upon the ground that in two respects the findings are unsupported by the

evidence.

We need not deal with the factual basis of this contention. The record on appeal contains

no transcript of testimony taken at the time of trial nor was any statement of the evidence

prepared pursuant to Rule 75(n) N.R.C.P. Appellant, then, has wholly failed to provide this

court with the means for considering the merits of her contention.

Affirmed. No costs are allowed.

____________

��72 Nev. 31, 31 (1956) Casey v. Musgrave��

JOHN JAY CASEY, Appellant, v. ROBERT E.

MUSGRAVE, Respondent.

No. 3798

February 6, 1956. 292 P.2d 1066.

Appeal from the Fifth Judicial District Court, Nye County, William D. Hatton, Judge.

Action to recover for services rendered by plaintiff which included appraisal of cattle and

ranch property where, as a result thereof, defendant's bid for the purchase of the ranch was

accepted. From judgment for plaintiff for $31,000, defendant appeals. The Supreme Court,

Merrill, C. J., held that the defense of res judicata was without merit, that the award of

damages was supported by the evidence, and that the rulings of the trial court were without

error.

Judgment affirmed, with costs.

William J. Crowell, of Carson City, and Leslie E. Riggins, of Reno, for Appellant.

Stewart & Horton, of Reno, for Respondent.

1. Judgment. In action for services rendered by plaintiff in the appraisal of cattle and ranch property as result of which

defendant was enabled to purchase the property, judgment in a prior action brought by plaintiff against

defendant to establish a partnership and the ownership and operation of the ranch and to secure an

accounting as to the partnership assets, was not res judicata.

2. Election of Remedies. An election once made, with knowledge of facts, between coexisting remedial rights which are

inconsistent, is conclusive, irrespective of intent, and constitutes an absolute bar to any action, based upon

a remedial right inconsistent with that asserted by the election, or to the maintenance of a defense founded

on such inconsistent right.

3. Election of Remedies. In action for services involving appraisal of cattle and ranch property, plaintiff by bringing a former

action to establish a partnership in the ownership and operation of the ranch did not make an election of

remedies barring maintenance of the present action, where plaintiff in the prior action simply ��


proceeded under a mistake of fact in assuming a meeting of the minds of the parties to have occurred upon

a partnership contract.

4. Work and Labor. In action for services rendered by plaintiff including appraisal of cattle and ranch property, award of

$31,000 to plaintiff was not excessive.

5. Work and Labor. In action for services rendered by plaintiff including the appraisal of cattle and ranch property which

enabled defendant to purchase a ranch, including in the award to plaintiff, sums recovered by a private sale

of cattle in computing the plaintiff's damages was proper, where record supported the implied authority of

the plaintiff to sell the cattle, as against the defendant's contention that services rendered by plaintiff in

such connection were gratuitous.

6. Work and Labor. In action for services involving the appraisal of cattle and ranch property enabling defendant to purchase

a ranch, uncertainty in proof as to the value of trucks and private automobile involved in the award of

damages which was not as to existence or cause of benefit but as to the measure or extent, was not so great

as to destroy all evidentiary weight thereof as a matter of law.

7. Work and Labor. In action for services rendered by plaintiff including the appraisal of cattle and ranch property whereby

defendant was enabled to purchase ranch property, award to plaintiff of $8,000 for use of trucks and

$3,000 for use of a private automobile was supported by the evidence.

8. Evidence. Where witness qualified as an expert by experience in selling and trading cattle, and the purpose of his

testimony was to establish reasonable value of services rendered by plaintiff in conducting an auction sale,

expression of opinion by the witness as to reasonable value of services rendered by auctioneer in selling

cattle, which was based upon what he had himself received in his own special contractual arrangements and

circumstances surrounding them, was not competent to establish reasonable value of plaintiff's services.

9. Trial. Trial judge, during the course of the trial, is charged with a superintending duty to regulate and control

the course of proceedings in an orderly manner, enforcing obedience to his rulings and extensive

discretionary authority is given to the judge in such regard.

10. Evidence. Where defendant upon redirect examination of an expert witness reverted to stricken testimony and the

trial court sustained the objection on the ground that witness had so ��"�� "�� "��


clearly committed himself as to the basis for stated opinion that he could not modify his answer nor could

counsel properly invite such modification, action of the trial judge fell within the field of his discretionary

authority.

11. Evidence.

Where question on redirect examination of witness expressing opinion as to value of services in selling

cattle did not invite explanation of testimony given on cross-examination but an outright repudiation of

such testimony, action of the court in denying such procedure was not improper as depriving defendant of

the right of redirect examination of the witness to explain the discredited testimony elicited on

cross-examination.

OPINION


This is an action brought by respondent as plaintiff for the reasonable value of services

rendered to defendant at defendant's instance and request. Judgment for the plaintiff in the

sum of $31,000 was rendered pursuant to jury verdict and the defendant has taken this appeal

from judgment.

Appellant's first contention is that the action is barred by res judicata.

The services in question were rendered from May through August, 1948. Defendant was

contemplating the purchase of ranch and range property and cattle in Nye County. Plaintiff

operated a cattle sales yard in Fallon, Nevada, and was experienced in the appraisal and sale

or cattle. The services rendered by plaintiff included appraisal of cattle and ranch property. As

a result of these services defendant bid for purchase of the ranch and his offer was accepted.

Thereafter plaintiff's services included the rounding up and sale of cattle. As a result of these

services defendant was enabled to realize the purchase price of the ranch. In 1949 an action

was brought by plaintiff against defendant to establish a partnership in the ownership and

operation of the ranch and to secure an accounting as to partnership assets. This action

resulted in judgment for defendant upon ��


the ground that proof of an agreement to enter into partnership had not been established. This

judgment was affirmed upon appeal to this court. Musgrave v. Casey, 68 Nev. 471, 235 P.2d

729. Thereafter in June, 1952, the present action was commenced.

Appellant contends that the cause of action in the first suit was identical with the cause of

action in the case at bar under the tests set forth by this court in Reno Club v. Harrah, 70 Nev.

125, 260 P.2d 304. In both cases, it is contended, there is identity of subject matter, of the

primary right of the plaintiff and duty of the defendant and of the facts from which these

matters arose. Therefore, it is argued upon the authority of the Reno Club opinion, the

judgment in the first case operates as a bar to the instant case.

It is not enough, however, that the same circumstances and transactions have, in general,

given rise to both cases. The former action was based upon an alleged express contract which

by its terms determined the primary right of the plaintiff and duty of the defendant. Those

rights and duties related not simply to compensation for plaintiff's services but involved the

relationship of partners in the ranch enterprise. Our opinion in the former case expressly

states, 68 Nev. 471, 481, 482, 235 P.2d 729, 734, 735, “The trial court in rendering its

opinion in favor of the defendant stated the conviction that there was not sufficient evidence

to establish that there ever was a partnership or joint adventure created between the parties.

This appears to us to be the true issue. The question is not whether plaintiff is entitled to

compensation for his services rendered in connection with the raising of the purchase price.

The question is whether any contract ever was reached which created a joint adventure.” It

cannot, then, be said that the former case constituted an adjudication of the right of plaintiff

to recover compensation for his services or that plaintiff in this action seeks simply a new

remedy upon the same cause of action.

Gall v. Gall, 17 App.Div. 312, 45 N.Y.Supp. 248, 251,


252, involved a similar situation. There the court stated, “The cause of action in the first case

was for the specific performance of an agreement to make a will. The question presented was

whether such an agreement had been made by Joseph Gall. Upon that question the rights of

the parties depended. The fact of the rendition of services was material only as it afforded a

consideration which would be, in equity, sufficient to compel the specific performance of

such an agreement if it had been made, but in all other respects the fact of the rendition of the

services was entirely immaterial. Nor was the value of these services material in any respect

whatever * * *. In the second action, however, the services themselves, and their rendition,

lay at the basis of the action.” To the same effect is O'Meara v. McDermott, 43 Mont. 189,

115 P. 912; followed in Gaspar v. Buckingham, 116 Mont. 236, 153 P.2d 892.

[Headnote 1]

The bar of res judicata does not apply.

[Headnote 2]

Appellant next contends that plaintiff in bringing his former action conclusively elected

his remedy and may not now assert a right to an inconsistent alternative remedy. The rule is

stated in Robertson v. Robertson, 43 Nev. 50, 59, 180 P. 122, 124, 187 P. 929, as follows:

“‘An election once made, with knowledge of the facts, between co-existing remedial rights

which are inconsistent, is irrevocable and conclusive, irrespective of intent, and constitutes an

absolute bar to any action, suit, or proceeding based upon a remedial right inconsistent with

that asserted by the election, or to the maintenance of a defense founded on such inconsistent

right.' ”

[Headnote 3]

This is not a proper case for application of that rule, however. The alternative remedies did

not coexist under the true state of facts. Facts which would support the existence of one

remedy would preclude the existence of another. Plaintiff simply proceeded under a mistake��


of fact in assuming a meeting of the minds of the parties to have occurred upon a partnership

contract. O'Meara v. McDermott, supra; Marsh v. Masterson, 101 N.Y. 401, 5 N.E. 59. See

Restatement of the Law, Judgments, sec. 65, subsection (2), comment (g), P. 276.

Accordingly we hold this contention to be without merit.

[Headnote 4]

Appellant next attacks the jury's award of damages as excessive and without evidentiary

support. Damages were allowed in the sum of $20,000 for services, $8,000 for use of trucks,

and $3,000 for use of a private automobile.

In this connection appellant contends that there is no proof to establish the value of the

services performed by respondent; that respondent's opinion as to value has no evidentiary

weight whatsoever since it is based upon a formula not shown to have any customary or

reasonable relation to the services rendered.

Respondent's testimony as to the reasonable value of his services was to the effect that a

conservative figure would be $21,000, being 10 percent of cattle sales totaling $210,000.

Upon cross examination it was established that since he had been proceeding upon the

assumption that he was a partner in the enterprise respondent had kept no record of the

specific services performed or of the time spent in their performance.

There is, however, no question but that extensive services of value had been performed,

nor as to the nature of those services. They covered a period of three full months. They

related, first, to sales of cattle, including an auction sale. In this respect they went far beyond

the services ordinarily performed by a cattle auctioneer (whose commission, respondent

testified, customarily is 3 percent of sale proceeds where the sale is conducted upon the

auction lot or 5 percent where conducted upon the cattle's home ranch). They included a

multitude of details relating to the preparation for sale, gathering, sorting and classifying of

cattle from all parts of the extensive desert range which comprised the Butler ��


Ranch, construction of corrals, preparation of scales, feeding of those who attended the sale,

all of which required the employment of 15 persons in addition to the services of respondent

himself. The resulting auction realized $78,000. The services related also to the successful

purchase of the Butler Ranch by the appellant, through appraisal of cattle and ranch property

and advice as to bid and as to methods by which, through cattle sales, the terms of that bid

might be met.

Appellant's objection to the jury award in this connection goes to the computation of value

on a percentage basis of cattle sales rather than upon proof of specific acts performed and of

time spent and of customary charges for such specified services.

There can be no doubt that the services of respondent were not only extensive in time and

scope but that they made demands upon the special professional skills possessed by him. In

computing the value of professional services it is not uncommon to appraise the benefit to the

respondent of the services performed, nor to take into consideration in such appraisal the

value of the subject matter with which the services were connected or upon which they were

performed. In giving consideration to such matters it is not uncommon to establish

compensation on a commission basis rather than on a time-spent basis. Respondent's method

of computing value simply invited the jury to take such matters into consideration. Whether

such considerations were unreasonable under the circumstances was for the jury to decide.

We cannot say as a matter of law that such considerations were improper and thus rendered

the award of damages without evidentiary support.

[Headnote 5]

Appellant contends that in any event it was improper for respondent to include in the

$210,000 of cattle sales the sum of $132,000 recovered by a private sale of cattle. This sale

had been discussed between respondent and the purchaser the night of the auction sale and

was consummated two days later between appellant and the ��


purchaser. The purchaser had been present at the auction sale and respondent had shown him

the cattle the following day. Appellant contends that respondent's authority to sell cattle was

limited to the conducting of an auction sale; that he was without authority to act as agent or

broker in any private sale and that any services rendered by him in that connection must

therefore be held to have been gratuitous.

From respondent's testimony, however, it would appear that he felt himself, as a partner,

not only authorized but under a duty to seek out cattle purchasers and to aid in the

consummation of sales. The record amply supports implied authority. The evidence clearly

shows that services were performed by him in the bringing together of purchaser and vendor

at an agreed price. It was, then, entirely proper for the jury to include this transaction in its

determination of the extent and value of services performed.

[Headnote 6]

Appellant contends that the proof as to value of trucks and private automobile was

uncertain, conjectural and speculative and wholly without evidentiary weight. It is true that no

records were kept and that the testimony of respondent in this respect was based upon

recollection and estimate and, to this extent, was uncertain. The uncertainty, however, was

not as to existence or cause of benefit but as to measure or extent and was not so great as to

destroy all evidentiary weight as a matter of law. Brown v. Lindsay, 68 Nev. 196, 228 P.2d

262.

Respondent testified to the use of three trucks all equipped for transportation of cattle: a

Diamond-T truck and trailer used for a minimum of 42 days, a Diamond-T truck and

semitrailer used for a minimum of 42 days, a GMC truck used for a minimum of 21 days,

together with drivers, full time, for all trucks. He placed a value on the service of trucks and

drivers as follows: for the Diamond-T units, $100 a day; for the GMC truck, $50 a day. His

estimate of value thus totaled $9,450. The award was $8,000.


As to the automobile respondent testified that approximately 42,000 miles had been driven

during the time he was working on the Butler deal; to the best of his recollection all but about

8,000 miles had related to the Butler deal. About one-half of the driving had been over

unimproved roads. He placed a value of 10 cents a mile upon the car use. His estimate of

value, then, was $3,400. The award was $3,000.

[Headnote 7]

In both respects we feel there is sufficient evidence to support the jury's award.

Appellant further assigns as error action of the trial court in striking certain testimony of

one of appellant's witnesses, in sustaining an objection to a question on redirect examination

relating to the subject of the stricken testimony and in refusing to permit counsel to examine

further on that subject.

[Headnote 8]

The purpose of the testimony in question was to establish the reasonable value of services

rendered in conducting an auction sale of cattle. The witness had qualified himself as having

had 39 years of experience in selling and trading cattle. It was apparent, however, that a

goodly part of his experience in auctioning cattle had been in relation to sales where his

compensation did not depend entirely upon commissions. Under these circumstances

objections had been sustained to his testimony as to commissions he had received, upon the

ground that evidence of specific commissions constituted no proof of reasonable value of

services rendered. He was then asked his opinion as to the reasonable value of services

rendered by an auctioneer in selling $78,000 worth of cattle. His answer was that the value

varied, depending upon the type of sale. “From one to three percent, that is as much as I ever

got.”

Upon cross examination in response to three separate questions the witness answered and

reiterated that this expressed estimate of reasonable value was based solely �� 3��


upon his own personal experience and was not based upon his knowledge as to what other

auctioneers may have charged or received. Upon motion of counsel for respondent his

testimony as to reasonable value was stricken. In our view this action was proper. In the light

of his testimony as a whole and from the language of the answer itself, it would appear that

his expression of opinion was based upon what he had himself received under his own special

contractual arrangements and the circumstances surrounding them. Such evidence is not

competent to establish reasonable value. Nelson v. Reinhart, 47 Nev. 246, 219 P. 554, 221 P.

521.

Upon redirect examination counsel for appellant reverted to the stricken testimony. The

following question was asked, “When you put a value on your service is that value based

upon what other people in the same field, giving the same service, place on it?” Upon

objection, counsel for appellant argued in support of the question that the witness should have

an opportunity to explain “the real background upon which he based his opinion.” The court

sustained the objection recognizing that the witness had so clearly committed himself as to

the basis for his stated opinion that he could not, in propriety, modify his answer nor could

counsel properly invite such modification. Further, the court advised counsel that he could

not proceed further “on that line of inquiry.”

[Headnotes 9, 10]

The trial judge, during the course of the trial, is charged with a superintending duty to

regulate and control the course of proceedings in an orderly manner, enforcing obedience to

his rulings. Extensive discretionary authority is given to the judge in this regard. See 53

Am.Jur. 49, Trial, sec. 34. In our view the action of the trial judge in this respect clearly fell

within the field of his discretionary authority.

[Headnote 11]

Appellant contends that this action improperly denied him the right of redirect

examination for the purpose of �3�� "�� 3��


explaining discrediting testimony elicited on cross examination. The question on redirect,

however, did not invite explanation but outright repudiation of testimony already given upon

cross examination. If counsel had wished to qualify the witness to express an opinion upon

reasonable value properly founded, he might have attempted such qualification. This he did

not do. He reverted to the opinion already expressed and sought to have the witness change

his testimony as to the basis for that expression of opinion.

Other assignments of error are made, all of which we have examined and feel to be

without merit.



____________

��72 Nev. 41, 41 (1956) Pagni v. City of Sparks��

PETE S. PAGNI and MILLICENT PAGNI, Husband and Wife, Appellants, v. CITY OF

SPARKS, NEVADA, a Municipal Corporation, and LELAND MASINI, A. RIPARBELLI

and ELIO MARTINI, Respondents.

No. 3870

February 6, 1956. 293 P.2d 421.

Appeal from order of Second Judicial District Court, Washoe County; A. J. Maestretti,

Judge, vacating verdict for plaintiffs and granting new trial.

Negligence action against municipality and its contract garbage haulers in operation of

trash and garbage dump in such a manner as to constitute alleged nuisance with resulting

damage to plaintiff's property. Following jury's verdict for plaintiff, the trial court granted

defendant's motion for new trial, and plaintiffs appealed. The Supreme Court, Badt, J., held

that trial court's granting new trial was not abuse of discretion.

Affirmed.

C. Lester Zahniser, of Sparks, and Martin J. Scanlan, of Reno, for Appellants.


Leslie B. Gray, of Reno, John G. Spann, of Sparks, and John Gabrielli, City Attorney of

Sparks, for Respondents.

1. Appeal and Error. On appeal from order granting a new trial upon grounds of insufficiency of evidence that verdict was

against law, question was whether trial court abused its discretion in granting new trial, and not whether

appellate court would have reversed jury's verdict as without evidentiary support, and appellate court must

respect not jury's verdict but trial court's judgment unless that judgment was clearly wrong.

2. New Trial. Under rules of civil procedure, trial court, in granting defendant's motion for new trial based on several

different grounds, was not required to state in writing the grounds upon which it granted the new trial.

N.C.L.1929, sec. 8877; N.C.L.1931-1941 Supp., sec. 9385.53; Rules of Civil Procedure, Rule 59.

3. New Trial. In negligence action against municipality and its contract garbage haulers in operation of trash and

garbage dump in such a manner as to constitute alleged nuisance with resulting damage to plaintiffs'

property, where jury returned verdict for plaintiffs awarding them $1 general damages and $1,152 special

damages, trial court's granting new trial on ground that evidence clearly preponderated against the verdict

or that verdict would result in injustice was not abuse of discretion.

OPINION


The main question raised by this appeal is whether the trial court abused its discretion in

vacating the jury's verdict for the plaintiffs and granting the defendants a new trial.

[Headnote 1]

This is the third appeal recently reaching this court in which damages have been sought by

reason of alleged negligence of the municipal defendant and its contract garbage haulers in

the operation of its trash and garbage dump, it being asserted in each case that the dump ��


was so operated as to constitute a nuisance with resulting damage to the respective plaintiffs.

In City of Reno v. Fields, 69 Nev. 300, 250 P.2d 140, a jury returned a verdict of $1,000

damages for the plaintiffs, the defendant city appealed and we affirmed the judgment entered

upon the verdict. In Jezowski (formerly Mrs. Fields, the plaintiff in the earlier action) v. City

of Reno, 71 Nev. 233, 286 P.2d 257, the jury returned a verdict for the defendant, the

plaintiffs appealed and we again affirmed. In the present case the jury returned a verdict of $1

general damage and $1,152 special damages, and the trial court granted defendants' motion

for new trial. This appeal is from that order. The function of this court on such an appeal is

well recognized in this state. In Arrowhead Freight Lines v. White, 71 Nev. 257, 287 P.2d

718, a jury's verdict in favor of defendants was vacated, a new trial ordered upon the grounds

of insufficiency of the evidence etc. and the plaintiff appealed. We said there: “The law of

Nevada regarding such an appeal is well digested in Nevada Rock & Sand Company v. Grich,

59 Nev. 345, 365, 93 P.2d, 513, 521. The question is not whether we, as an appellate court,

on the record before us would have reversed the jury's verdict as without evidentiary support.

The question, rather, is whether upon that record the trial court can be said to have abused its

discretion in granting new trial. As stated in Treadway v. Wilder, 9 Nev. 67, 70, ‘It must be

borne in mind that the nisi prius courts in reviewing the verdict of juries are not subject to the

rules that govern appellate courts. They may weigh the evidence and if they think injustice

has been done grant a new trial where appellate courts should not or could not interfere.' We

must, then, respect not the jury's verdict but the trial court's judgment (that the evidence

clearly preponderates against the verdict or that it would result in injustice) unless that

judgment is clearly wrong.” This in turn was followed in the recent case of Aeroville

Corporation v. Lincoln County Power District, 71 Nev. 320, 290 P.2d 970.


[Headnote 2]

It is true that the grounds for defendants' motion for new trial were stated to be the jury's

manifest disregard of the instructions, excessive damages, insufficiency of the evidence, that

the verdict and judgment were against law and errors in law occurring at the trial, and it is

likewise true that the trial court simply entered its order granting a new trial without stating

any of the reasons for such order. Appellants assert that under the requirements of sec. 8877,

N.C.L. 1929, it was error for the court to fail to state in writing the grounds upon which it

granted the new trial. In the amended section 9385.53, N.C.L. 1931-41 Supp., the mandatory

language was changed to permissive language with reference to stating the reasons for the

order. The matter in any event is now governed by Rule 59, N.R.C.P., which omits the

requirement entirely.

[Headnote 3]

We turn then to the evidence to ascertain whether the new trial order finds support under

the rules enunciated above. Did the trial court abuse its discretion in granting a new trial?

Was the judgment of the trial court in granting a new trial clearly wrong—in holding (as we

must presume it did) that the evidence clearly preponderated against the verdict, or that it

would result in injustice?

Our conclusion is that the order finds ample support.

Plaintiffs and their witnesses testified to the constant escape of papers, cartons, debris,

trash and tin cans from both the dump used by the city's contract haulers and the dump to

which private individuals were permitted to haul. These are referred to, respectively, in the

evidence and marked upon the map as the existing city dump area and the public dumping

area. Plaintiffs introduced in evidence a great number of photographs showing cartons,

papers, tin cans etc. upon their land, against their fences and in their irrigating ditches, and

there was evidence that some of this material was seen �� .��


blowing in the direction of plaintiffs' land from the dumps. Plaintiffs claim that this would

not occur if the refuse were promptly burned. They also asserted that hogs were permitted to

run about the dump and that they trespassed upon plaintiffs' lands and that plaintiffs were

compelled on occasions to drive them out. While they asserted that smoke and odors were

blown upon their lands from the dump, they did not claim this as an item of damage. The

main special damages claimed by plaintiffs were the necessary expenditure of about an hour a

day over a long period of time which made up, on the basis of $1 per hour, the special

damages found by the Jury in the sum of $1,152.

Defendants' witnesses 1 included the present mayor of Sparks (who had held office as

mayor and as councilman for over 20 years), a former mayor (who had served 10 years as

mayor, eight years as councilman and four years as chairman of the local school board), a

former mayor (who had served as such for four years), the city engineer (who had served as

such officer for some 13 years), the city building and sanitary inspector, the caterpillar and

bulldozer operator who operated his equipment at the dumps, neighbors of the plaintiffs, and

the present franchise haulers and their predecessors. Virtually all of these witnesses were

long-time residents of Sparks, and their qualifications were for the most part either admitted

or duly established. On the motion for new trial the learned trial judge was entitled to record

credence to their testimony. From such testimony and from testimony elicited from the

plaintiffs' witnesses on cross examination and from other evidence in the case, the trial judge

was entitled to picture the situation as follows:

The city's dump ground area, acquired from the United States in 1904 comprised a 40-acre

tract about three and a half miles east of the city. Plaintiffs' lands, � %�� ,�� )*4��

____________________

1 Some of these witnesses were first called by plaintiffs as adverse witnesses, or as witnesses on their behalf.


adjoining this tract on the north and east, were acquired in 1943 and later. Other parcels

adjacent to the plaintiffs' land and to the city's land are owned by other persons. The city first

established and used a dump ground in the northerly half of its 40-acre tract, but this was on

high ground and subject to the action of the winds, which normally were south and west

winds. The subject of the operation of the dump ground, in the rapid growth of the city, was a

continuing problem confronting every mayor and board of councilmen. It was eventually met

by providing for the issuance of an exclusive franchise, for a consideration, for the hauling of

trash and garbage from the premises of the inhabitants of the city, for which the licensees

collected varying fees directly from such inhabitants. The personal defendants, respondents

herein, are the current licensees. The present and past licensees had numerous conferences

with the city councilmen (as did likewise the plaintiff Pagni) looking toward improvement of

the operation. Some old trash piles about on the easterly line of the city's parcel and

encroaching on plaintiffs' land 2 were bulldozed west and upon the city's parcel, and a

dividing line fence constructed. The old dump ground was abandoned and two exclusive

dumping areas established, a public dumping area some 600 feet long in the easterly half of

the area, and the city dump area in the westerly half, some 800 feet long. New roads were

built to these areas and times and places for dumping established and policed. Fences were

built and gates installed. Dumping was restricted to daylight hours. Signs were posted. The

gates were closed and locked in periods of very high winds. The barbed-wire fences served to

keep plaintiffs' cattle from straying upon the dump, and the mesh-wire fences to a large extent

served to prevent papers and trash from blowing away. The new dump location, the

consequent dumping into a canyon, the establishment of ramps for the dumping, all reduced�� "��

____________________

2 These were for the most part ancient dumps including old tree stumps. Plaintiffs claimed no damage on this

item.


to a minimum the blowing away of papers and trash. The present licensees purchased a new

load packer truck, which was leak proof and prevented the escape of trash or garbage, for

$12,500. As against the suggestion for adoption of a “trench and fill” method, it appeared that

the entire terrain was very rocky, with very little top soil, and the adoption of such method

was virtually impossible. Installation of an incinerator would have cost about a million

dollars, beyond the city's financial ability to meet, and would not necessarily be a complete

solution. The present operation included employment by the licensees of an operator with a

bulldozer, which kept the ramps level and pushed the refuse into the canyon. Not only was

the refuse burned daily—each truckload was burned immediately after it was dumped. 3

However, unlawful dumping continued to be made along the roads, and papers and refuse

would blow from these unlawful dumps toward plaintiffs' property. The city made constant

efforts to stop such unlawful dumping. As against some 45 photographs introduced by

plaintiffs showing papers and refuse upon their lands, in their ditches and against their fences,

defendants: (1) introduced some 16 photographs showing the premises and approaches to be

quite clean; (2) pointed out that most of the refuse shown in plaintiffs' photographs comprised

(a) tumbleweeds, which plaintiffs conceded blew in from everywhere, (b) garbage cans and

other tin cans which were never seen to fly through the air on the wind, and (c) papers and

cartons in small quantities; and (3) introduced the testimony of two witnesses that the

licensees had offered to plaintiff Pagni to remove any existing papers and trash from his

premises, build a woven-wire fence along the south ��

____________________

1 Pagni had testified on direct examination both to the annoyance he suffered from smoke from the dump and

also that the trash was not burned daily. On cross examination he was asked: “Do you complain about the

burning, or do you want them to burn, which do you prefer?” He answered, “I am not complaining about the

burning. I'm complaining about the trash * * * If they burned it right away, it wouldn't have come over.”


line of one of his parcels, and thus afford an accurate check of any future escaping refuse; that

Pagni rejected this offer because he would have the burden of maintaining the fence and

because he did not want people on his land. The state health department found the dump

operation to be satisfactory and had never made any recommendation for any change in

method.

Much of the foregoing testimony was denied by the plaintiffs. In addition to that

testimony, however, there was much before the court which we do not find in the record. This

grows out of the fact that, despite the constant admonitions of the learned trial judge, many

matters were called to the attention of the court and the jury which are entirely unintelligible

to this court in reading the record. The situation differs only in degree from one in which

there is no record to support a claim that the evidence does not sustain a verdict or a finding

of the court. The record is replete on page after page with testimony of a witness who testifies

that, “This ditch is over here,” or “The high ground is over there,” or “The road comes up

from this direction,” or “This is the field that I examined,” or “I didn't go into that field over

there.” All this was with reference to a map used to illustrate and explain the testimony of

most of the witnesses in the case, and which may have presented to the trial judge additional

reasons in support of his new trial order. 4

We think that it is clearly demonstrated that there was no abuse of discretion in the order

appealed from, and it is affirmed with costs.


____________________

4 We cannot refrain from quoting one answer: “There is a hill here. This is on the easterly-northeasterly slope

of that hill, and this here, of course, is also behind the hill, but across the ravine * * * . It is behind this hill here.

Now, whether this hill here could afford the protection when it's that far away or not * * *.”

____________

��72 Nev. 49, 49 (1956) Wilkins v. Capurro��

EDWIN A. WILKINS, Appellant, v. JOHN CAPURRO,

Respondent.

No. 3848

February 14, 1956. 293 P.2d 427.


Department No. 2.

Action was brought in quantum meruit for value of services rendered by plaintiff in

connection with the remodeling of premises of defendant. From a judgment for plaintiff,

defendant appealed. The Supreme Court, Eather, J., held that evidence sustained

determination of Second judicial district court that plaintiff's services were performed, that

they were performed at the instance and request of defendant and with mutual expectation of

payment, and that they were reasonably worth $675.

Affirmed.

Leslie B. Gray, of Reno, for Appellant.

Frank R. Petersen, of Reno, for Respondent.

1. Work and Labor. In action in quantum meruit for value of services rendered by plaintiff in connection with remodeling of

premises of defendant, evidence sustained determination of trial court that plaintiff's services were

performed, that they were performed at the instance and request of defendant and with mutual expectation

of payment, and that they were reasonably worth $675.

2. Appeal and Error. In action in quantum meruit for value of services rendered by plaintiff in connection with remodeling of

premises of defendant, wherein defendant succeeded in creating grave doubt as to the extent or value of

plaintiff's services insofar as plaintiff attempted to specify them, resolution of such doubt remained the

function of the trial court as trier of facts.

OPINION


This is an action in quantum meruit for the value of �� ()(�5��"�&��


services rendered in connection with the remodeling of premises located at 616 University

Avenue, Reno, Nevada. Judgment of the court below, sitting without a jury, was in favor of

the plaintiff; and the defendant has taken this appeal. The defendant claims that the services

were gratuitously rendered and that there is no proof of their value. The question, then, is

whether there is support in the record for the trial court's findings.

For clarity, the appellant will be referred to as defendant, and the respondent as plaintiff.

Plaintiff was the owner of the premises involved. He agreed to sell them to defendant for

$15,000 and further agreed to lend defendant the sum of $12,000 for the purpose of

remodeling, taking a note and trust deed in the sum of $27,000. Defendant, a building

contractor, was to do the remodeling himself. The transaction was completed in May, 1952.

Work of remodeling went forward until the first of August. During this period of time

plaintiff was present daily, interesting himself in the work being done, assisting where he

could, with no idea of receiving compensation for his services.

Around the first of August defendant ceased work on the premises and transferred his

activities to the completion of work which his University Avenue job had interrupted.

According to plaintiff's testimony he continued to visit the premises daily and, being familiar

with the necessary work remaining to be done and desiring to hasten its completion, he

proceeded voluntarily to work on the job. On August 4 the defendant called at the premises

and a conversation was had which the plaintiff described as follows: “When he come up I

said, ‘I started to work here.' * * * and he says * * * ‘that work has got to be done * * * you

just as well have it whether it amounts to two or three hundred or more dollars. I just as well

pay you as anybody else.'”

[Headnote 1]

From that date on plaintiff kept track of the number of hours he worked. He testified to

450 hours spent; that, in his opinion, the services were worth $1.50 an ��


hour, comparable to what the defendant had paid for common labor on the job. In our view

the testimony of the plaintiff provides support for the determination of the trial court that

plaintiff's services were performed, that they were performed at the instance and request of

defendant and with mutual expectation of payment, and were reasonably worth the amount of

$675.

Defendant flatly denies that any such conversation was had. He asserts that plaintiff's

position is contrary to the terms of the original agreement between the parties to the effect

that plaintiff was not to be employed by defendant and that whatever services he rendered

were to be gratuitous. The facts, however, do not preclude the possibility of a new

understanding relative to the use of plaintiff's services. In our view defendant's contentions go

merely to the weight and credibility of the plaintiff's testimony.

[Headnote 2]

Defendant asserts that proof is wanting as to the nature of the services performed by

plaintiff and as to their value or benefit. It must be conceded upon a reading of the record that

defendant has succeeded in creating grave doubt as to the extent or value of the services

performed insofar as plaintiff attempted to specify them. The resolution of doubt, however,

remained the function of the court as trier of facts. In our view the record does not compel a

rejection of the trial court's determination in this respect.

In the case of McNee v. McNee, 49 Nev. 90, at 99, 237 P. 534, at 537, it is stated: “A trial

court may base its judgment upon the testimony of one witness against the testimony of a

number of witnesses, if it is of sufficient weight to force a conviction of truth to a reasonable

mind, and the appellate court is without power to enforce a contrary opinion by reversing the

judgment.” Accord: Friendly v. Larsen, 62 Nev. 135, at 136, 144 P.2d 747.



____________

��72 Nev. 52, 52 (1956) Hanley v. Sheet Metal Workers��

THOMAS B. HANLEY, Appellant, v. SHEET METAL WORKERS INTERNATIONAL

ASSOCIATION, Respondent.

No. 3903

February 21, 1956. 293 P.2d 544.


Department No. 1.

Action by expelled union member against international union to compel his reinstatement.

The trial court quashed service of alternative writ, and plaintiff appealed. The Supreme Court,

Merrill, C. J., held that where officials of local union were elected by members of local,

rather than by international union, and were not authorized to act on behalf of international

union, and dispute did not arise out of business transacted by or through local union, service

on officer of local was not service on international union in respect to expelled union

member's action to compel reinstatement, despite statute relating to service on associations.

Judgment affirmed.

Zenoff, Magleby & Manzonie, of Las Vegas; Carl W. Berueffy, and Albert M. Dreyer, of

Washington, D.C., for Appellant.

Rudiak, Horsey & Lionel, of Las Vegas; Mulholland, Robie & Hickey, of Toledo, Ohio;

and Gilbert, Nissen & Irvin, of Los Angeles, California, for Respondent.

1. Associations. Service of process upon associations should be such as to give reasonable assurance that notice of the

institution of proceedings will promptly be conveyed to those having the responsibility of defending.

N.C.L.1929, sec. 8564.

2. Labor Relations. Where officials of local union were elected by members of local, rather than by international union, and

were not authorized to act on behalf of international union, and dispute did not arise out of business

transacted by or through local union, service on officer of local was not service on international union in

respect to expelled union member's action to compel reinstatement, despite statute relating to service on

associations. N.C.L.1929, sec. 8564.


OPINION


This is an appeal from an order quashing service of an alternative writ of mandate. The

question involved is whether an international labor union, being an unincorporated

association, can be served with process by making service upon an official or member of one

of its locals within the state. We conclude that it cannot and that the order appealed from

must be affirmed.

Respondent is an unincorporated international labor union with its principal office located

in Washington, D. C. It operates in the State of Nevada through three locals situated in the

cities of Las Vegas, Reno and Sparks. Appellant was a member of the Las Vegas local. By

letter from the general president of the respondent union, appellant was required to stand trial

for expulsion from membership on certain charges. Trial was had before a trial board of the

union in Los Angeles, California, resulting in a decision of expulsion. Appellant appealed

from this decision to the general convention of respondent union held in Montreal, Canada,

which convention affirmed the decision of the trial board.

In the court below appellant sought a writ of mandate against the international union to

compel his reinstatement to membership upon the ground that his expulsion was in violation

of the provisions of the union's constitution relating to notice and hearing and, therefore, was

void. The alternative writ was ordered by the lower court, was issued, and thereafter was

served upon the president of the Las Vegas local. Upon motion of the international union,

service was quashed upon the ground that service upon an officer of the local did not

constitute service upon the international organization.

Authority is in accord with this ruling. Singleton v. Order of Railway Conductors of

America (1935, Dist. Ct. S.D., Ill., N.D.), 9 Fed.Supp. 417; Christian v. International

Association of Machinists (1925, Dist.Ct., Ky.), 7 F.2d 481; Dean v. International

Longshoremen's &��.��


Ass'n (1936, Dist.Ct., W.D., La.), 17 Fed.Supp. 748; Kelley v. Brotherhood of Railroad

Trainmen (1950 Dist.Ct. W.D., Mo., W.D.), 90 Fed.Supp. 925; Daily Review Corp. v.

International Typographical Union (1949 Dist.Ct., N.Y.), 9 F.R.D. 295; Isbrandtsen Co. Inc.

v. National Marine Engineers' Ben. Ass'n (1949 Dist.Ct., N.Y.), 9 F.R.D. 541, 544;

McFarland v. Brotherhood of Locomotive Firemen and Enginemen (1939, La.), 190 So. 573,

193 La. 337; Hurley v. Brotherhood of Railroad Trainmen (1946, Neb.), 25 N.W.2d 29, 147

Neb. 781; Amon v. Moreschi (1947, N.Y.), 296 N.Y. 395, 73 N.E.2d 716; Western Union

Telegraph Co., Petition of (1954, N.Y.), 206 Misc. 561, 133 N.Y.S.2d 371; United

Brotherhood of Carpenters and Joiners of America v. McMurtrey (1937, Okla.), 179 Okla.

575, 66 P.2d 1051; International Brotherhood of Boilermakers v. Wood (1934, Va.), 162 Va.

517, 175 S.E. 45. As expressed in the Isbrandtsen Company case [9 F.R.D. 544], “The

national and local are autonomous entities and therefore service of process on the one is not

valid service on the other.” In this connection it may be noted that the officials of the local are

elected by the members of the local and in no respect are selected by the international or

authorized by it to act in its behalf. In Farnsworth & Chambers Co. v. Sheet Metal Workers

International Association (U.S.D.C. N.Mex.) 125 F. Supp. 830, following the Isbrandtsen

Company case, this general rule was specifically applied to the respondent union.

In opposition to this well-established rule appellant relies on International Union of

Operating Engineers v. Jones Construction Co., Ky., 240 S.W.2d 49, 54, holding that “service

on the agents of the local was sufficient to bring International before the court as an

organization.” In this case, however, a Kentucky statute provided that as to associations

service might be had upon the agent or manager in charge of the local agency “in all actions

growing out of or connected with the business of that office or agency.” Davidson v. Doherty

& Co., 214 6� ��-�*�


Iowa 739, 241 N.W. 700, 91 A.L.R. 1308, is likewise distinguishable. Nevada has no such

statute. It may also be noted that in the case at bar the cause of action against the union did

not arise out of business transacted by it by or through its Nevada locals. The general rule

would, therefore, seem clearly to apply.

Appellant contends, however, that Nevada has prescribed a method of service upon

associations. This is through sec. 8564, N.C.L. 1929, which reads as follows: “When two or

more persons, associated in any business, transact such business under a common name,

whether it comprise the names of such persons or not, the associates may be sued by such

common name, the summons in such cases being served on one or more of the associates; and

the judgment in the action shall bind the joint property of all the associates, in the same

manner as if all had been made defendants, and had been sued upon their joint liability.”

Since service in this case was made upon a member of the international association, it is

contended that the association has properly been served under this section. In opposition it is

contended by respondent that this section was never intended to apply to associations of the

sort here involved or to causes of action unrelated to business transactions of the local

associates.

[Headnote 1]

In our view the statute is not clear in its application to such matters and a question of

statutory construction is properly presented. Upon this question we agree with the contentions

of respondent: the statute cannot be construed to apply to national associations of the sort

here involved, at least so far as service of process is concerned. So to construe the statute

would be to give to it an effect so absurdly unrealistic as to be of doubtful due process.

Service of process upon associations should be such as to give reasonable assurance that

notice of the institution of proceedings will promptly be conveyed to those having the

responsibility of defending.


In Christian v. International Association of Machinists, supra, [7 F.2d 481, 482], it is

stated, “[Unions] cannot be brought before the court, save by service of process on a direct

representative, whose relation thereto is such that it is reasonable to infer that the service of

such process on him will be brought home to the union which he represents. They are entities,

distinct and separate from their membership and subordinates, as much so as a corporation is

an entity distinct from its stockholders or subordinate organizations.”

In Dean v. International Longshoremen's Ass'n, 17 F. Supp. 748, 750 (quoted and followed

in McFarland v. Brotherhood of Locomotive Firemen and Enginemen, supra), it is stated, “As

was pointed out by the Supreme Court in United Mine Workers v. Coronado Coal Co., 259

U.S. 344, 345, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762, these international labor unions are

entities, separate and distinct from the members who compose them and from the local

organizations. It is true that case did not involve a question of citation or jurisdiction, but, if it

be true, as must be conceded, that they have rights as juridical personages distinct from the

members or locals who compose them, then it necessarily follows that they cannot be brought

into court by service merely upon a member, but must be cited through some one having

authority either expressed or necessarily implied from his relation to the association or the

duties which he discharges.”

As to national associations, particularly those having the characteristics of labor unions,

the section in question wholly fails to provide any assurance that notice of proceedings will

be brought to the attention of those in authority. Service might effectively be made under that

section upon an obscure resident member having no official capacity or authority to bind the

association in any respect and no obligation (and, perhaps, no inclination) to divulge the fact

of service to those in authority.


[Headnote 2]

We cannot, then, credit the legislature with intent to bind national or nonresident

associations of the sort here involved by the method of service of process provided by sec.

8564, N.C.L. It follows that service of process upon the international union has not been

accomplished by making personal service upon the member of the association served.

Affirmed with costs.


____________

��72 Nev. 57, 57 (1956) County Commissioners v. Devine��

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WASHOE, State

of Nevada, and R. A. PETERSON, ERNEST KLEPPE and RAYMOND CAPURRO,

Members of Said Board, Appellants, v. CLIFFORD DEVINE, Respondent.

No. 3905

February 24, 1956. 294 P.2d 366.

Appeal from judgment of Second Judicial District Court, Washoe County; John F. Sexton,

Presiding Judge.

Mandamus proceeding. The lower court ordered writ of mandate to issue. The Supreme

Court, Badt, J., held that permanent appointment of bailiff for third department of district

court was violative of statute permitting only one bailiff for all divisions of district court.

Reversed.

Harvey Dickerson, Attorney General, Carson City, and A. D. Jensen, District Attorney of

Reno, for Appellants.

John E. Gabrielli and John S. Belford, of Reno, for Respondent.


1. Courts. Under statutory provisions relating to appointment of bailiffs and duties of sheriffs, it is a practice in

judicial districts having more than one judge for the sheriff to furnish deputies who serve as bailiffs as they

may be needed, in addition to the one bailiff provided by statute. N.C.L.1929, secs. 2149, 8466; sec. 8462,

as amended St.1953, p. 443; sec. 8465, as amended St.1954-1955, p. 190.

2. Courts. The court or judge has inherent power to secure an attendant for his court, at public expense, if regular,

orderly, statutory methods fail, or if officials charged by Legislature arbitrarily or capriciously fail or

neglect to provide necessary attendant, whereby efficient administration of justice is destroyed or seriously

impaired, or in the case of an emergency. N.C.L.1929, sec. 8466; sec. 8462, as amended St.1953, p. 443.3.

Courts. Record disclosed no conditions justifying exercise of inherent power of judge to secure attendant for his

court.

4. Constitutional Law; Courts. Statute permitting but one bailiff for three departments of court is not an unconstitutional encroachment

by the Legislature upon the judiciary. N.C.L.1929, sec. 8462, as amended St.1953, p.443.

5. Courts. Record failed to show that appointment of bailiff for third department of district court was calculated to

meet special emergency conditions but disclosed that appointment was permanent so as to be in violation

of statute permitting but one bailiff for three departments. N.C.L.1929, sec. 8462, as amended St.1953, p.

443.

OPINION


This appeal raises the question of the authority of the presiding judge of department 3 of

the district court of the second judicial district to appoint a bailiff for his department under

the reasons assigned by him for the asserted failure of regular statutory processes and

established methods.

The lower court ordered a writ of mandate to issue compelling the board of county

commissioners to recognize the validity of the appointment of respondent, by Hon. Gordon

W. Rice, judge of department 3 of said district court, as bailiff for his department. The board

has appealed from that order and judgment.


[Headnote 1]

(1) That provision for a bailiff is made by statute can hardly be questioned.

“In all judicial districts where there is more than one judge, there shall be but one bailiff to

attend all divisions of the court, said bailiff to be appointed by the joint action of the judges;

provided, if the judges cannot agree upon the appointment of the same within thirty days after

a vacancy occurs in the office of bailiff, then the appointment shall be made by a majority of

the board of county commissioners.” Sec. 8462 N.C.L.1929 as amended, Stats. 1953, 443.

“Compensation of bailiffs in judicial districts wherein there is more than one judge shall

be not more than $400 per month. Compensation of bailiffs in judicial districts wherein there

is only one judge shall be not more than $350 per month. The salaries of bailiffs shall be paid

by the county wherein he is appointed, the same as the salaries of other county officers are

paid.” Sec. 8465, N.C.L.1929, as amended, Stats. 1954-1955, 190.

“The provisions of this act shall not be construed * * * as relieving the sheriff of any duty

required of him by law to maintain order in the said court-room.” Sec. 8466, N.C.L.1929.

“It shall be the duty of the sheriff to attend in person, or by deputy, at all sessions of the

district court in his county, and to obey all the lawful orders and directions of the same; to

execute the process, writs, or warrants of courts of justice, judicial officers and coroners,

when delivered to him for that purpose.” Sec. 2149, N.C.L. 1929. 1 Under these provisions it

is the practice in judicial districts having more than one judge, for the sheriff to furnish

deputies who serve as bailiffs as they may be needed, in addition to the one bailiff provided

by the statute.

____________________

1 It is of interest, and of some importance, to note that the last quoted statute is section 6 of “An Act relating

to sheriffs,” Stats. 1861, 103, and in effect (subject to certain amendments) since that year, and that the other

three sections quoted are sections of “An Act to provide for the appointment of bailiffs for the district courts * *

*,” Stats. 1909, 36, and in effect (subject to certain amendments) since that year.


[Headnote 2]

(2) That the court or the judge has inherent power to secure an attendant for his court, at

public expense, if the regular, orderly, statutory methods fail, or if the officials charged by the

legislature arbitrarily or capriciously fail or neglect to provide the necessary attendant,

whereby the efficient administration of justice is destroyed or seriously impaired, or in the

case of an emergency, is not questioned by appellants. Merrill v. Phelps, 52 Ariz. 526, 84

P.2d 74; State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392; Leahey v. Farrell, 362 Pa.

52, 66 A.2d 577.

[Headnote 3]

(3) Respondent, however, in exactly twelve lines of his brief seeks to show the existence

of those conditions justifying the exercise of such inherent power. For this he refers to Judge

Rice's affidavit attached to the original petition for the writ of mandate. The pertinent

statements are: “That on one occasion during the time affiant has presided as judge there have

been three jury trials, one in each of the departments * * * and all proceeding at the same

time, and with only one official bailiff in attendance; that on that occasion your affiant had

three different deputy sheriffs acting as bailiff in his court, none of whom had any apparent

prior experience as bailiff. That on sundry other occasions your affiant has been required to

preside without the services of a bailiff.”

These conditions do not even remotely indicate the destruction or serious impairment of

the administration of justice in department 3 of the second judicial district court. The duty of

each bailiff as defined by sec. 8463, N.C.L.1929, is simply “to preserve order in the court, or

the division to which he may be appointed; to attend upon the jury; to open and close court,

and to perform such other duties as may be required of him by the judge of the court.” It is

quite reasonably suggested by appellant that sheriffs and deputy sheriffs, as trained and�3��


experienced police officers, are put to far more exacting and rigorous tests as such than when

acting as bailiffs and could be instructed by the judge as to their duties as bailiffs with a

minimum of time and effort.

[Headnote 4]

(4) Respondent contends that the statutory provision for but one bailiff for three

departments of court is an unconstitutional encroachment by the legislature upon the

judiciary, first, because it prevents the district judges from exercising their inherent power to

appoint their own necessary court attendants, and, secondly, because it is so completely

inadequate as in effect to be no provision at all. We do not find either of these arguments

convincing. The procedure illustrated by the quoted statutes, not unreasonably limiting or

hampering the court in the performance of its duties, remains essentially a function of the

legislature. Merrill v. Phelps, 52 Ariz. 526, 84 P.2d 74. We find nothing in State v. Davis, 26

Nev. 373, 68 P. 689; State ex rel. Watson v. Merialdo, 70 Nev. 322, 268 P.2d 922, or Nicholl

v. Koster, 157 Cal. 416, 108 P. 302, upon which respondent relies, under their facts and when

properly read, contrary to this view. The mere fact that on occasions the legislative provisions

may require judicial supplementing does not compel the conclusion that the statutory

provisions are inadequate or unworkable under normal conditions.

[Headnote 5]

(5) Respondent contends also that in any event Judge Rice's order appointing a bailiff, and

the writ itself if made permanent, simply supplement the statutory procedure by supplying a

bailiff at times or under circumstances when and where the statutory processes have failed.

The record does not justify such conclusion. The attempted appointment does not

supplement, but opposes and nullifies the legislative provisions. The appointment of

respondent was a permanent one, not merely temporary, and not calculated simply to meet

special emergency conditions.


Reversed with costs, and remanded with directions to vacate the order and writ of

mandate.


____________

��72 Nev. 62, 62 (1956) Hawthorne v. Walton��

LAWRENCE HAWTHORNE, Appellant, v. J. M. WALTON and MABEL K. WALTON,

Respondents.

No. 3882

March 2, 1956. 294 P.2d 364.


Department No. 1.

Action for recovery of usurious interest paid by borrower. The lower court granted the

lender's motion to dismiss the complaint on the ground that it failed to state a claim upon

which relief could be granted. The borrower appealed. The Supreme Court, Eather, J., held

that the voluntary payment of usurious interest is a waiver of the benefit conferred on the

borrower by the statute and the borrower who voluntarily pays the usurious interest has no

right to recover it.

Affirmed.

Harry E. Claiborne, of Las Vegas, for Appellant.

Calvin C. Magleby, of Las Vegas, for Respondents.

1. Usury. Usury was not illegal at common law. N.C.L.1929, sec. 4323.

2. Usury. Defense of usury is a personal one, and may be waived, and the party who voluntarily pays usurious

interest will not be permitted to recover it in absence of statutory provision authorizing such recovery.

N.C.L.1929, sec. 4323.

3. Usury. Where borrower voluntarily paid usurious interest, he waived benefit conferred upon him by statute and

had no right to recover the usurious interest paid. N.C.L.1929, sec. 4323.


OPINION


This is an appeal by the plaintiff from an order granting a motion of defendant to dismiss

the complaint of plaintiff on the grounds that the complaint failed to state a claim upon which

relief could be granted.

The complaint alleges the facts which we will now set forth. The complaint consisted of

two causes of action, in the first of which the plaintiff (appellant) alleged that on the eighth

day of March, 1954, the defendants (respondents) at the request of plaintiff, loaned and

advanced to plaintiff the sum of $45,000, upon a certain promissory note of that date for the

sum of $50,000, signed by plaintiff, with interest at the rate of 10 percent per annum; and

further, that as a condition of making said note, the defendants did take and receive upon said

note from the plaintiff a bonus of $5,000, thereby exceeding the established and allowable

rate of interest under the laws of Nevada. The plaintiff further alleged that on or about the

first day of September, 1954, he paid the amount of the principal and interest due on said note

of $50,000.

In the second cause of action plaintiff alleged that on or about the fifteenth day of June,

1954, the defendants loaned the plaintiff the sum of $18,000 upon a promissory note of that

date, for the sum of $20,000, signed by the plaintiff and providing for interest at the rate of 10

percent per annum; that as a condition of making said note the defendants did take and

receive upon said note a bonus of $2,000, thereby exceeding the established and allowable

rate of interest permitted under the laws of the State of Nevada. Plaintiff further alleged that

on or about the first day of September, 1954, he paid the amount of the principal and interest

due on said note of $20,000. The plaintiff asks judgment for the sum of $5,000 upon the first

cause of action, and for the sum of $2,000 upon the second cause of action, claiming that each

was in excess of the legal amount of interest allowable under the laws of Nevada.


The defendants in due course filed their motion to dismiss the complaint on the ground

that the complaint failed to state a claim upon which any relief could be granted. The trial

court granted the motion to dismiss and entered judgment accordingly. Plaintiff seeks review

of the judgment and insists that error was committed by the trial court in granting the motion

to dismiss the complaint.

Question To Be Determined

Whether, under sec. 4323, N.C.L.1929, usurious interest voluntarily paid is recoverable by

the person paying it, upon the ground that, notwithstanding the voluntary nature of the

payment, usurious interest is to be regarded in law as paid under compulsion, or whether

under such section payment is to be regarded as a waiver of the benefit provided by statute in

favor of the borrowers.

[Headnote 1]

In determining the question presented on this appeal and recognizing that there are

conflicting decisions from other jurisdictions, we are confronted with the task of examining

the statutes of various states and must also remind ourselves that usury was not illegal at

common law; therefore, a statute which prohibits the exaction of usury is the source from

whence stems the power of the court in dealing with such matters.

Section 4323, N.C.L.1929, provides as follows: “Parties may agree, for the payment of any

rate of interest on money due, or to become due, on any contract, not exceeding, however, the

rate of twelve percent (12%) per annum. Any judgment rendered on any such contract shall

conform thereto, and shall bear the interest agreed upon by the parties, and which shall be

specified in the judgment; provided, only the amount of the original claim or demand shall

draw interest after judgment. Any agreement for a greater rate of interest than herein

specified, shall be null and void and of no effect as to such excessive rate of interest.” As

amended, Stats. 1913, 31.


Plaintiff contends that under this statute usurious interest, even though voluntarily paid, is

to be regarded as paid under compulsion and recoverable by the person paying. The

authorities cited in support of this contention all deal with statutes which expressly provide a

right to the recovery back of interest paid. Cf. Richeson v. Wood, 158 Va. 269, 163 S.E. 339,

82 A.L.R. 1189.

In the absence of such statutory provision, the clear weight of authority is to the effect that

usurious interest voluntarily paid is not recoverable. Harralson v. Barrett, 99 Cal. 607, 34 P.

342; London and San Francisco Bank v. Bandmann, 120 Cal. 220, 52 P. 583; Matthews v.

Ormerd, 140 Cal. 578, 74 P. 136; Nicholls v. Skeel, 12 Iowa 300; Crisman v. Corbin, 169

Ore. 332 128 P.2d 959; Vermont Loan & Trust Co. v. Bramel, 111 Ore. 50, 224 P. 1085;

Gladwin State Bank v. Dow, 212 Mich. 521, 180 N.W. 601, 13 A.L.R. 1233; Gardner v.

Matteson, 38 Mich. 200; Wright v. First National Bank of Monroe, 297 Mich. 315, 297 N.W.

505; Chase & Baker Co. v. National Trust and Credit Co., D. C., 215 Fed.Rep. 633; Cook v.

Wolf, 296 Ill. 27, 129 N.E. 556; Payne v. Newcomb, 100 Illinois 611, 39 Am.Rep. 69; Bell v.

Barnes, 238 Ala. 248, 190 So. 273; Fessenden v. Taft, 65 N.H. 39, 17 A. 713; see 55 Am.Jur.

402.

[Headnotes 2,3]

As stated by the Michigan Supreme Court in Gardner v. Matteson, supra, “The defense of

usury is a personal one, and may be waived, and so may the party voluntarily pay usurious

interest, and where he does so he will not be permitted to recover it back.” The same court in

Gladwin State Bank v. Dow, supra, stated, “The statute is available as a shield but not as a

sword.”

Under sec. 4323, N.C.L., no provision is made for the recovery back of usurious interest

voluntarily paid. Such payment, then, is to be regarded as a waiver of the benefit conferred

upon the borrower by the statute.



____________

��72 Nev. 66, 66 (1956) Smith v. Epperson��

ALBERT SMITH, Appellant v. SADIE L. EPPERSON, as Special Administratrix of AMOS

EPPERSON, Deceased; MAX EPPERSON and S.F. FALKENBURG, Respondents.

No. 3898

March 8, 1956. 294 P.2d 362.

Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.

Proceeding on a defendant's motion to correct conclusions of law and judgment, nunc pro

tunc. The lower court granted the relief sought, and plaintiff appealed. The Supreme Court,

Eather, J., held that where it was clear from findings of fact, in action brought to quiet title to

certain real property and to recover possession of same, that moving defendant's sole interest

in the matter had been as purchaser from another defendant's decedent's estate of certain

improvements placed upon property in question by decedent, which court found that moving

defendant had right to remove, and decedent was only person found to have committed

injury, trial court would not be put in error for entering order amending judgment, nunc pro

tunc, to provide that money judgment not run against movant.

Affirmed.

Wright & Eardley; Williams and Mann, of Elko, for Appellant.

F. Grant Sawyer and Joseph O. McDaniel, of Elko, for Respondents.

1. Judgment. Mere fact that judgment is not supported by findings does not constitute such error of judgment mere

clerical error, subject to nunc pro tunc correction. Rules of Civil Procedure, Rule 60(a, b).

2. Judgment. Error in failure to make written conclusions of law and judgment truly speak determination which has

been made is “clerical” rather than “judicial” error, and subject to nunc pro tunc correction. Rules of Civil

Procedure, Rule 60(a, b).


3. Judgment. Object and purpose of nunc pro tunc order is to make record speak truth concerning acts already done.

Rules of Civil Procedure, Rule 60(a, b).

4. Judgment. Where it was clear from findings of fact, in action brought to quiet title to certain real property and to

recover possession of same, that moving defendant's sole interest in the matter had been as purchaser from

another defendant's decedent's estate of certain improvements placed upon property in question by

decedent, which court found that moving defendant had right to remove, and decedent was only person

found to have committed injury, trial court would not be put in error for entering order amending judgment,

nunc pro tunc, to provide that money judgment not run against movant. Rules of Civil Procedure, Rule

60(a, b).

OPINION


This is an appeal by plaintiff from an order amending a judgment nunc pro tunc.

Parties will be referred to as they appeared in the trial court.

Plaintiff contends that the amendment was a correction of a judicial error, and therefore

the court did not have power to so amend the judgment. Defendants assert that it was a

correction of a clerical error, and therefore the court had power to make the amendment.

Plaintiff brought the action against the defendants to quiet title to certain real property and

to recover possession of the same from the defendants.

During the pendency of the action defendant Amos Epperson died, and by stipulation

Sadie L. Epperson, as administratrix of his estate, was substituted in his place and stead.

The defendant, S. F. Falkenburg, appeared and disclaimed any interest in any of the real

property, save and except through Sadie L. Epperson, he claims the right to remove certain

improvements constructed upon this real property.

At the conclusion of the case judgment was rendered �� /)�+�


in favor of plaintiff against all three defendants establishing his title and awarding him

nominal damages in the sum of $105. Judgment was satisfied. Eleven months later defendant

Falkenburg, finding that judgment prejudicial to his position in another suit, moved, under

Rule 60(a), N.R.C.P., to correct the conclusions of law and judgment, nunc pro tunc, to

provide that the money judgment run against defendant Sadie Epperson alone. The motion

was granted. From that order of correction and corrected judgment this appeal is taken.

Question To Be Determined

[Headnotes 1-4]

Based on the findings of fact, was there a clerical mistake or error arising from oversight

or omission in the drafting of the conclusions of law and the judgment that could be corrected

under the provisions of Rule 60(a), N.R.C.P.?

The question is answered in the affirmative.

Plaintiff contends that the trial court's action did not amount to correction of clerical error;

that, on the contrary, it amounted to correction of judicial error and was in effect

modification; that it had lost power to modify after the passage of six months under Rule

60(b), N.R.C.P.

The findings of fact demonstrate that the court had determined that the trespasses on the basis

of which damages were allowed were those which had been committed by Amos Epperson,

now deceased, whose estate Sadie Epperson represents in this action. Falkenburg's sole

interest in the matter was as a purchaser from the Epperson estate of certain improvements

placed upon the property in question by the decedent, which improvements the court below

determined Falkenburg had the right to remove.

This is emphasized by the court's award to him of the right of ingress and egress for the

purpose of such removal. A finding that Falkenburg was without fault is implicit.


It is clear that the trial court's action was taken for the purpose of conforming conclusions

of law and judgment to the findings. The court's order of correction states in part: “The court

* * * after carefully defining the rights and obligations of the parties by way of Findings of

Fact, reached a conclusion therefrom, afterwards honored in the judgment, which cannot by

any theory be justified. The court is persuaded that the discrepancy occurred as a result of an

oversight.”

Plaintiff contends, however, that the determination of Falkenburg's liability in the light of

the findings was a judicial determination; that while the conclusions of law and judgment in

this respect may be erroneous and unjustified, this constitutes judicial error and not mere

clerical error; that the fact that such error was the result of an oversight rather than a

considered determination does not relieve it of its judicial character.

Certainly it must be conceded that the mere fact that the judgment is not supported by the

findings does not constitute such error of judgment mere clerical error. It must be conceded

that in the usual case of conflict between findings and judgment plaintiff's contention would

indeed have merit.

In the case at bar, however, it is clear from a reading of the findings that a determination

that Falkenburg was free from liability had actually been made. Amos Epperson was the only

person found to have committed injury. The tortious acts and the responsible person had

expressly been specified and the limit of monetary responsibility of that person had been

fixed. It requires no further formal expression to establish to our complete satisfaction that a

determination of liability had thus been made.

The error which resulted from oversight was not, then, an error of judgment, a faulty

determination as a matter of law; the error was in failure to make the written conclusions of

law and judgment truly speak the determination which had been made. It was, then, clerical

rather than judicial error.


The view expressed here finds accord generally in the case of Talbot v. Mack, 41 Nev.

245, at 255, 169 P. 25, 27 wherein it is stated: “Viewing the matter as we do, it becomes

unnecessary for us to determine the question as to the right of appellant to an order nunc pro

tunc. Suffice it to say in this respect, however, that we find it to be a rule supported by

eminent authority that the object and purpose of a nunc pro tunc order is to make a record

speak the truth concerning acts already done.” Accord: Finley v. Finley, 65 Nev. 113 at 118,

189 P.2d 334, 196 P.2d 766.



____________

��72 Nev. 70, 70 (1956) McKernon v. Black��

GEORGE E. McKERNON, Appellant, v. EDWARD P. BLACK, an Incompetent Person, by

FIRST NATIONAL BANK OF NEVADA, Reno, Nevada, a Corporation, His Guardian,

Respondent.

No. 3808

March 19, 1956. 294 P.2d 913.

Appeal from the Second Judicial District Court, Washoe County; Taylor H. Wines, Judge

Presiding Department No. 3.

Action by incompetent, through his guardian, to recover on promissory note. Defendant

counterclaimed for sums due for professional services. From a judgment for plaintiff,

defendant appealed. The Supreme Court, Eather, J., held that evidence supported finding that

no contract existed between parties, and that reasonable value of services was as found.

Affirmed.

George E. McKernon, in propria persona, of Reno, Guild, Busey & Guild, of Reno, for

Appellant.

Cantwell & Loomis, of Reno, for Respondent.


Attorney and Client.

In proceeding on attorney's counterclaim for fees, evidence supported finding that no contract existed

between parties, and that reasonable value of services was as found.

OPINION


This is an action brought by Black, an incompetent person, through his guardian, the First

National Bank of Nevada, to recover the sum of $4,250 upon a promissory note executed by

McKernon, plus interest. McKernon counterclaimed for sums due him for professional

services rendered to Black as his attorney from 1942 to 1950 terminating upon the declaration

of Black's incompetency and appointment of his guardian. In the trial court the action

developed into an accounting upon the counterclaim. The trial court, sitting without a jury,

found that McKernon had rendered services of a value of $23,750; that Black had paid on

account the sum of $22,000, leaving a balance due McKernon in the sum of $1,750 which,

offset against the note left Black entitled to judgment upon the principal of the note in the

sum of $2,500, plus interest amounting to $882.46, and attorneys' fee in the sum of $400.

Judgment in favor of Black was rendered in the sum of $3,782.46. McKernon has taken this

appeal.

Essentially the question is one of fact; whether the evidence supports the finding of the

trial court. McKernon attacks the findings in two respects. (1) The court found that no

contract existed between the parties and that McKernon's right to recovery was dependent

upon the reasonable value of services performed. McKernon contends that a contract existed

between himself and Black whereby Black was to pay him $2,500 a year retainer from 1942

to 1950, plus additional fees for extraordinary services. (2) McKernon disputes the court's

findings as to the reasonable value of his services and as to payments on account creditable to

Black.


McKernon emphasizes that his testimony upon these matters was undisputed. The trial

court recognized this but expressly refused to give full acceptance to such testimony. In ruling

upon McKernon's motion for new trial, it stated: “It would be gainsaying the record to assert

that any witness directly contradicted the defendant's testimony on that subject. That he was

impeached by proof of inconsistent statements, and that his testimony seemed to the Court

inherently improbable in view of the defendant's professional status, cannot be argued, at

least not at this time. * * * The court prefers to rely on the rule, ‘that the mere assertion of any

witness does not of itself need to be believed, even though it be unimpeached in any manner;

because to require such belief would give quantitative and impersonal measure to testimony.'”

In support of the position adopted by the trial court it may be noted that McKernon's

testimony as to the existence of a contract and as to credits could not categorically be denied.

The only witnesses were Black and his wife. By the time of the trial Black had been adjudged

incompetent and his wife was dead. It may be noted as well that McKernon's testimony in

these respects was subject to inconsistencies which cannot be said to have been fully and

persuasively explained. As to the value of his services, his testimony was lacking in detail.

Considering the nature of the relationship between McKernon and Black and the fact of

Black's incompetency, known to McKernon well in advance of the court adjudication, the

trial court might well have imposed a greater burden of precise proof upon McKernon than

otherwise might have been held acceptable. Upon a full reading of the record we are

convinced that the court's findings are supported and that no error has been shown.



____________

��72 Nev. 73, 73 (1956) Arends v. Sweetwater Mining Co.��

EDWARD ARENDS, Appellant, v. SWEETWATER

MINING CO., a Corporation, Respondent.

No. 3724

March 19, 1956. 294 P.2d 914.


Department No. 2.

Action by stockholder against corporation to recover advances. From a judgment for

defendant, plaintiff appealed. The Supreme Court, Merrill, C. J., held that where

plaintiff-stockholder made advances to corporation under agreement that advances should be

repaid only when corporation had sufficient profits, and there was no agreement that

corporate property should not be leased or sold without obtaining sufficient down payment to

repay stockholders' advances, that property was leased without obtaining a down payment did

not waive condition that profits be made before the repayment of advances.

Judgment affirmed.

(Rehearing denied May 25, 1956.)

Walter Rowson, of Reno, for Appellant.

John P. Thatcher, of Reno, for Respondent.

1. Corporations. In action against corporation to recover advances made by plaintiff-stockholder, evidence supported

finding that there had been no agreement between plaintiff and corporation that corporate properties should

not be leased or sold without obtaining down payment sufficient to repay advances.

2. Corporations. Where plaintiff-stockholder made advances to corporation under agreement that advances should be

repaid only when corporation had sufficient profits, and there was no agreement that corporate property

should not be leased or sold without obtaining sufficient down payment to repay stockholders' advances,

that property was leased without obtaining a down payment did not waive condition that profits be made

before repayment of advances.


OPINION

By the Court, Merrill, C. J.:.

This is an action brought by appellant as plaintiff to recover from defendant corporation

the value of services rendered and money furnished on its behalf. Defendant denies corporate

liability under any circumstances. This issue we do not reach and for the purposes of this

opinion may assume that under proper circumstances the properties represented by defendant

corporation would become liable. In any event, however, corporate liability was not to arise

until the occurring of certain eventualities which have not in fact occurred. The question upon

this appeal, as we view it, is whether such conditions to liability have been waived by

defendant or whether they continue effective and thus preclude recovery in this action. The

trial court sitting without a jury held for defendant corporation, and plaintiff has taken this

appeal from judgment. Essentially the question is one of fact: whether the record will support

a determination by the trial court (not expressed but implicit in its findings and judgment),

that under the circumstances the defendant corporation may not be held to have waived the

conditions upon which its liability would arise.

The case is founded in contract. If defendant corporation is to be held liable it must be on

the basis of an implied contract to make compensation for benefits received. The terms of

such contract must in turn be based on provisions of express agreements between certain

interested persons individually, which prescribed the rights and duties of those persons in

relation to the properties standing in the name of defendant corporation.

Plaintiff Arends, the owner of a controlling interest in certain mining claims, in 1941

entered into an agreement with C. E. Leitzell whereby Leitzell was to furnish operating

capital in exchange for a half interest in the ��"�


mining property. It was agreed that title to the mining claims should be held in the name of

the defendant corporation. The agreed initial sums were paid by Leitzell. Thereafter, as

further capital was required for operations and for the acquisition of additional properties,

additional sums were furnished until Leitzell eventually had paid over $40,000, substantially

more than had been originally contemplated.

In 1942 Leitzell notified Arends that he had already paid more than had been anticipated

and should be considered to have paid in full for his one-half interest in the properties. From

thenceforth, he insisted, the interested parties should share in the expenses of the operation in

proportion to their interests. Thereafter advances were made by both Leitzell and Arends. The

greater portion of Arends' contributions were by way of labor through the furnishing of

services as superintendent of operations, caretaker, and in the performance of assessment

work.

In 1946 Leitzell died and certain heirs succeeded to his interests, including his son, Paul

Leitzell. Thereafter the Leitzell heirs recognized their obligation to contribute one-half of the

expense of the operations. Certain payments were made by them in this respect, but at the

time suit was brought a balance remained owing upon this account. A tender of payment was

made by them, but was rejected by Arends as insufficient to discharge their obligation in full.

It is apparent, therefore, that we are faced with two different obligations: (1) the obligation

of the interested parties to contribute their proportionate share to the expenses of operation;

(2) an obligation by or on behalf of the corporation to repay such contributions.

As to the former it was clearly not a corporate liability. The agreement was between and

binding upon the interested parties. The corporation's position was that of beneficiary rather

than obligor.

As to the latter it is clear from the testimony of all ��


concerned, including Arends himself, that they were all operating with a common

understanding that all contributions to operating expense were to be regarded as advances to

be repaid before division of profits but that payment back of such advances was not to be

made unless and until the mine became productive either through profitable operation, sale,

or lease.

In 1950 the defendant corporation took the action which precipitated this suit. Over

Arends' objection his employment was terminated and the mine was leased to one Eric

Flodine by action of the defendant's board of directors. The lease proved wholly

unproductive. No money was ever received by the defendant from it. The generally

recognized condition precedent to any obligation to repay advances has not been met.

Arends contends, however, that it was further agreed that the property would not be sold or

leased unless a substantial down payment was received, sufficient to pay off all advances

made on behalf of the corporation. He contends that the corporate action in executing the

Flodine lease was a violation of this agreement in that it called for no down payment. He

contends that this breach of contract relieved him from further need to forbear from

demanding payment for his advances; that it amounted to a waiver on the part of the

defendant of any condition precedent to liability since by its own conduct it had made it

impossible for such condition to be met.

Whether breach of such an agreement would constitute a waiver, we need not decide. As

to this contention of Arends our task is simply one of ascertaining whether the record can be

said to establish beyond question that such an agreement existed and thus compel a factual

determination of such existence. In our view it cannot.

There is no proof of an express corporate agreement with reference to down payment,

although there is proof that in respect to a past effort to sell or lease, corporate authority to

negotiate had been limited to an agreement providing for a $25,000 down payment.


Bearing upon a possible implied contract by the corporation there was testimony as to an

oral agreement or understanding between the interested parties. Arends testified that his

agreement with C. E. Leitzell, at the time that the arrangement for sharing of expenses was

agreed upon, was to the effect that advances were “to come back to us from the sale of the

property and there was to be enough cash to take care of it.” Further, that “it was always our

understanding that when that property was disposed of, either by lease or by sale, that that

money had to be advanced to take care of these advances that were made by these individuals

who had carried this thing on for the corporation.” These vague and indefinite statements are

the only testimony which has been directed to our attention in support of the existence of the

agreement for which Arends contends.

The only other testimony to which our attention has been directed bearing upon such an

agreement is that of Paul Leitzell. He testified that all concerned were anxious to be able to

sell or lease the property with a substantial down payment; that Arends had always insisted

upon it; that the others had certainly had no objection. Then, in response to a question

whether he had not consistently agreed with Arends that any lease or sale of the property

should be conditioned upon a substantial down payment he answered, “If we could get it,

yes.”

There is, then, evidence that as between the stockholders the extent of any understanding

relative to a down payment was that such payment should be secured if it could be got. There

is no proof that at the time of the execution of the Flodine lease a down payment could have

been secured. The evidence as to the history of the property would indicate quite the contrary.

Reason supports Leitzell's construction of the understanding. Should the mine prove to be

wholly unproductive under Arends' development program (as did ultimately prove to be the

case), a down payment might well be difficult to secure. Under Arends' contention any lease

of the property for the purpose of securing the ��


benefit of further development (or, indeed, of any constructive operation of the properties),

might well become impossible. A determination that a corporation has impliedly bound itself

to such a proposition beyond control of its board of directors might well be held to require

more definite proof than is to be found in this record.

[Headnotes 1, 2]

In any event it cannot be denied that the record supports a rejection of the proposition that

an agreement existed, binding upon the corporation, that, regardless of the circumstances, its

properties would never be sold or leased save upon receipt of a substantial down payment.

Under the common understanding between the interested parties, then, any corporate liability

to repay advances (if such obligation existed at all), must await the receipt of such sums from

operation, sale or lease of the properties.

Arends has asserted error of the trial court in many specific respects and, in support of his

contention that the judgment is contrary to the evidence, has dealt with many propositions of

law not discussed in this opinion. Upon these matters we have either accepted Arends'

position for the purpose of our decision or feel that a determination would be immaterial in

the light of our opinion. In each instance the factual record makes it unnecessary to deal with

issues of law.



____________

��72 Nev. 79, 79 (1956) Nevada Real Estate Commission v. Ressel��

NEVADA REAL ESTATE COMMISSION, Appellant, v. O.O. RESSEL, Also Known as

RAY RESSEL, An Individual, and RAY RESSEL, Doing Business as WESTERN LANDS,

Respondents.

No. 3908

March 20, 1956. 294 P.2d 1115.

Appeal from judgment of Eighth Judicial District Court, Clark County; Ryland G. Taylor,

Judge, Department No. 3, denying injunction.

Action to enjoin threatened continued violation of Real Estate Brokers' Act. From a

judgment for the brokers, the Commission appealed. The Supreme Court, Badt, J., held that

where statute required that real estate brokers obtain license and provided that Real Estate

Commission may bring action to enjoin broker from continuing violation, it was not

necessary to prove irreparable damages.

Reversed.

Milton W. Keefer, of Las Vegas, and Sidney W. Robinson, of Reno, for Appellant.

1. Injunction. In action to enjoin threatened continued violation of statute which required that real estate brokers obtain

license and provided that Real Estate Commission may bring action to enjoin broker from continuing

violation, it was not necessary to prove irreparable damages. N.C.L.1943-1949 Supp., secs.

6396.01-6396.35.

2. Injunction. In exercise of police powers, state may authorize courts of equity in proper cases to prohibit by injunction

violation of provisions of an act of legislature, though no property right is involved.

3. Injunction. In action by commission to enjoin continued violation of Real Estate Brokers' Act which provided that

commission may bring such action under enumerated conditions and that order or judgment may be entered

awarding injunction, where defendants were brought squarely within those conditions, there was no area

for exercise of discretion by court. N.C.L. 1943-1949 Supp., sec. 6396.31.


4. Injunction. Under statute providing that in action brought by commission to enjoin violation of Real Estate Brokers'

Act, an order “may” be entered awarding such preliminary or final injunction as may be proper, the quoted

word means shall. N.C.L. 1943-1949 Supp., sec. 6396.31.

OPINION


[Headnote 1]

The sole question presented by this appeal is: Is proof of irreparable damage essential to

the granting of an injunction against continued violation of the provisions of the Nevada Real

Estate Brokers Act? Secs. 6396.01-6396.35, N.C.L.1943-1949 Supp. We answer in the

negative.

The act in question defines real estate brokers and requires that all persons operating as

such obtain a license from the Nevada State Real Estate Commission. Appellant's complaint

brought respondents squarely within the provisions of the act, alleged respondents' threatened

continued violation, and sought an injunction under sec. 6396.31, reading as follows:

“Whenever the [commission] believes from evidence satisfactory to it, that any person has

violated or is about to violate any of the provisions of this act, or any order, license, permit,

decision, demand, or requirement, or any part or provision thereof, it may bring an action in

the name of the [commission] in the district court of the State of Nevada in and for the county

wherein such person resides, against such person to enjoin such person from continuing such

violation or engaging therein or doing any act or acts in furtherance thereof. In this action an

order or judgment may be entered awarding such preliminary or final injunction as may be

proper, but no preliminary injunction or temporary restraining order shall be granted without

at least five days' notice to the opposite party.”


At the trial respondents admitted that all of the allegations of fact in the complaint were

true. The court agreed that proof was unnecessary but denied injunctive relief on the ground

that there was no proof of irreparable injury, an element deemed by the learned trial judge to

be essential to this equitable remedy. Appellant concedes the propriety of such conclusion in

the absence of statute, but contends that where the statute provides for injunctive relief, no

invasion of a property right need be shown, as the statute effects an enlargement of the equity

powers of the court. Justification of this contention is found in the opinion of this court in

Itcaina v. Marble, 56 Nev. 420, 55 P.2d 625, 630, and in the cases therein cited.

“By the 1931 grazing act, the legislature has determined that its purpose can be best

accomplished by securing in their use those graziers who have established themselves as

such, by the continuous, open, notorious, peaceable and public use of said lands seasonally

for a period of five years or longer immediately prior to the approval of the act. It has likewise

determined that the remedy of injunction is one of the means best adapted to enforce the

purposes of the act.

[Headnote 2]

“We are of the opinion that it had power to confer upon courts of equity jurisdiction of a

case arising under the statute notwithstanding no property right could be invaded by one

violating the provisions of the act. It is well settled that the state, in the exercise of its police

powers, may authorize courts of equity in proper cases to prohibit by injunction the violation

of the provisions of an act of the legislature, though no property right is involved. Board of

Medical Examiners of State of Utah v. Freenor, 47 Utah 430, 154 P. 941, Ann. Cas. 1917E,

1156; Board of Medical Examiners v. Blair, 57 Utah 516, 196 P. 221; Ex Parte Allison, 48

Tex. Cr. R. 634, 90 S. W. 492, [3 L.R.A., N.S. 622], 13 Ann. Cas. 684; McMillan v.

Livestock Board, 119 Miss. 500,


So. 169; Rochester v. Gutberlett, 211 N. Y. 309, 105 N. E. 548, L.R.A. 1915D, 209, Ann.

Cas. 1915C, 483; Clopton v. State (Tex. Civ. App.), 105 S. W. 994; Campbell v. Peacock

(Tex. Civ. App.), 176 S. W. 774.”

This is indeed supported by the overwhelming weight of authority. See United States v.

Beatty, 88 Fed. S. 646, 651. The legislature has declared, as a public policy of Nevada, that

the best public interests are served by requiring that real estate brokers be licensed and that

attempts so to act without the required license may be enjoined.

[Headnotes 3, 4]

It is next contended that the language of the act as above quoted is permissive only and

leaves the matter of the granting or denying of an injunction to the discretion of the district

court. This contention grows out of the language providing that in an action brought by the

commission to enjoin violation of the act, “an order or judgment may be entered awarding

such preliminary or final injunction as may be proper.” The contention is without merit. The

state's policy having been declared, the sole conditions for the issuance of the injunction are

those fixed by the act itself. United States v. Beatty, supra. And respondents were brought

squarely within those conditions. There was no area for the exercise of discretion. In such

cases the use of “may” to mean “shall” has been recognized in cases too numerous to

mention, especially where used to define the duties of public officers, and where the public

interests are concerned. Smith v. City Commission of City of Grand Rapids, 281 Mich. 235,

274 N.W. 776.

The judgment is reversed with costs and the case remanded with direction to enter

judgment for the plaintiff, appellant herein, granting the injunction prayed for against

respondents.


____________

��72 Nev. 83, 83 (1956) Ex Parte Colton��

In the Matter of the Application of RODNEY H. COLTON for a Writ of Habeas Corpus,

Petitioner, v. W. E. LEYPOLDT, Sheriff of Clark County, Nevada, Respondent.

No. 3895

March 21, 1956. 295 P.2d 383.

Appeal from order of Eighth Judicial District Court, Clark County; A. S. Henderson,

Judge, Department No. 2, denying discharge under habeas corpus.

Habeas corpus proceeding to determine whether petitioner, who had been indicted by

grand jury on charge that he had, as county commissioner, agreed to accept money from

another to exert his influence with proper officials to end that other would receive gaming

and liquor license, had been committed without reasonable or probable cause. The trial court

denied petitioner discharge under writ of habeas corpus, and petitioner appealed. The

Supreme Court, Merrill, C. J., held that evidence was sufficient to establish that grand jury

had before it evidence tending to show that an offense had been committed and that there was

cause to believe that defendant had committed it.

Affirmed.

Harry E. Claiborne, of Las Vegas, for Petitioner.

Harvey Dickerson, Attorney General, and Geo. Dickerson, District Attorney, Clark

County, for Respondent.

1. Habeas Corpus. Persons who are held under an indictment are entitled to release under habeas corpus if it clearly appears

that they have committed no act which law declares criminal or if there is no evidence which would

indicate commission of a crime on which they might be tried, but the inquiry had under habeas corpus may

not be extended to determine sufficiency of evidence before grand jury to warrant a finding of an

indictment. N.C.L.1929, sec. 11394.

2. Habeas Corpus. In determining, in habeas corpus proceeding, whether person indicted by grand jury has been committed

without reasonable or probable cause, court may properly limit scope of �3��


examination and will look into the evidence far enough to see whether there is any tending to show that an

offense was committed and that there was cause to believe that accused had committed it. N.C.L.1929, sec.

11394.

3. Habeas Corpus. In habeas corpus proceeding to determine whether petitioner, who was indicted by grand jury upon the

charge that he had, as county commissioner, agreed to accept money from another to exert his influence

with proper officials to end that such other would receive a gaming and liquor license, evidence was

sufficient to establish that grand jury had before it evidence tending to show that an offense had been

committed and that there was cause to believe that defendant had committed it. N.C.L.1929, secs. 9996,

11394.

4. Habeas Corpus. Where there was evidence sufficient to establish that grand jury had before it evidence tending to show

that an offense had been committed and that there was cause to believe that defendant had committed it,

and further examination, in habeas corpus proceeding by defendant to establish that he had been committed

without reasonable or probable cause, would have gone simply to extent and sufficiency of the evidence

before grand jury, refusal to permit further examination in the habeas corpus proceeding was not improper

since that further examination would be immaterial to the inquiry under habeas corpus. N.C.L.1929, sec.

11394.

5. Habeas Corpus. Where, in habeas corpus proceeding to determine whether petitioner, who had been indicted by grand

jury, had been committed without reasonable or probable cause, evidence offered to establish that witness

who testified before grand jury was an accomplice tended to show that he was but a feigned accomplice

whose testimony need not be corroborated, such evidence was immaterial to the inquiry under habeas

corpus, and therefore rejection thereof was not error. N.C.L. 1929, sec. 11394.

OPINION


This is an appeal from order of the trial court denying petitioner a discharge under writ of

habeas corpus.

Petitioner, a member of the Board of County Commissioners of Clark County, was

indicted by the grand jury of that county under sec. 9996, N.C.L.1929. Specifically the charge

was that petitioner as county commissioner had agreed to accept $10,000 from one Louis1��


Tabet to exert his influence with the proper officials to the end that Tabet receive gaming and

liquor licenses; that a scintillator or Geiger counter was accepted by petitioner as applying

upon the agreed gratuity. Contending that he had been committed without reasonable or

probable cause petitioner brought proceedings in habeas corpus seeking his discharge

pursuant to sec. 11394, N.C.L.1929. Upon hearing petitioner sought to establish that the

grand jury had acted without sufficient proof of guilt. To establish this contention those who

had testified before the grand jury were called as witnesses. The trial court denied discharge

and this appeal has been taken.

Upon this appeal petitioner's first contention is that the trial court erred in limiting his

examination of Ed Reid, the only witness before the grand jury who had testified directly to

the acts alleged to constitute the crime.

Asked to relate his testimony as given before the grand jury, the witness testified, “Well, I

told the Grand Jury of visits Mr. Colton made to the El Rancho and meetings he had there

with Louis Tabet. I believe there were several of them. I know there were several of them. I

told the Grand Jury how I heard Mr. Colton agree to receive from Mr. Tabet the sum of

$10,000. The scintillator given to Mr. Colton by Mr. Tabet was to be on the side of his cut.

That was the expression used. I told of the presentation of the scintillator, at which point Mr.

Colton said, ‘You have made a County Commissioner very happy.' And that is about the gist

of it.”

The following exchange then took place between the witness and counsel:

“Q. That is all of your testimony before the Grand Jury pertaining to Rodney Colton? A.

That is a summary of the testimony.

“Q. You mean that is your own synopsis? A. That is my own synopsis, yes.

“Q. We are interested in knowing what your testimony was, what you told them? A. I don't

recall the �3��"�


exact testimony. Perhaps if I had a copy of my testimony I could look at it and indicate just

exactly what I did say. I can't recall at the moment.”

Counsel then attempted to examine the witness as to the details of his testimony but was

prevented from doing so by the court.

[Headnote 1]

Nevada has long recognized that persons held under an indictment are entitled to release

under habeas corpus when it clearly appears that they have committed no act which the law

declares criminal or where there is no evidence which would indicate the commission of a

crime on which they might be tried. Eureka Bank cases, 35 Nev. 80, 126 P. 655, 129 P. 308;

Ex Parte Stearns, 68 Nev. 155, 227 P.2d 971.

Clearly, however, there are limits to the inquiry which may be had under habeas corpus.

As stated in Ex Parte Stearns, supra [68 Nev. 155, 157; 227 P.2d 971, 972], it may not be

“extended to determine the sufficiency of the evidence before the grand jury to warrant a

finding of an indictment.”

The United States Supreme Court in Costello v. The United States 76 S.Ct. 406, recently

refused to approve procedure which would permit a review of evidence upon which a grand

jury had acted. There the court stated, “If indictments were to be held open to challenge on

the ground that there was inadequate or incompetent evidence before the grand jury, the

resulting delay would be great indeed. The result of such a rule would be that before trial on

the merits a defendant could always insist on a kind of preliminary trial to determine the

competency and adequacy of the evidence before the grand jury.”

[Headnote 2]

The court entertaining the writ may, then, properly limit the scope of the examination. As

stated by this court in the Eureka Bank cases, 35 Nev. 80, 113, 126 P. 655, 665, “[T]he court

issuing the writ will look into the �� "��


evidence far enough to see whether there is any tending to show that an offense was

committed and that there was cause to believe that the accused committed it.”

[Headnotes 3, 4]

From the testimony given by the witness as we have quoted it, it would appear that the

grand jury had before it evidence tending to show that an offense had been committed and

that there was cause to believe that the defendant had committed it. Further examination

would simply have gone to the extent and sufficiency of the evidence. We cannot, then, say

that the court acted improperly in holding further examination immaterial to the inquiry under

habeas corpus.

Petitioner's next contention upon this appeal is that the trial court improperly rejected

evidence by which petitioner sought to establish that the grand jury had indicted upon the

uncorroborated testimony of an accomplice. The state opposes this contention upon several

grounds, only one of which we need consider. We do not, then, act upon the state's

contentions that petitioner's offer of proof demonstrated that if the witness was an accomplice

he was not petitioner's accomplice but Tabet's; or that in any event such offer of proof went to

the sufficiency or adequacy of the evidence before the grand jury.

[Headnote 5]

It is clear from petitioner's offer of proof that the very evidence offered to establish that the

witness was an accomplice would tend to show that he was but a feigned accomplice whose

testimony need not be corroborated. State v. Verganadis, 50 Nev. 1, 248 P. 900. The court,

then, was not in error in rejecting the evidence as immaterial to the inquiry under habeas

corpus.

Affirmed.


__________

��72 Nev. 88, 88 (1956) Ex Parte Jones��

In the Matter of the Application of GLEN JONES for a Writ of Habeas Corpus, Petitioner, v.

W. E. LEYPOLDT, Sheriff of Clark County, Nevada, Respondent.

No. 3914

March 21, 1956. 295 P.2d 385.

Appeal from order of Eighth Judicial District Court, Clark County; Frank McNamee,

Judge, Department No. 1, denying discharge under habeas corpus.

Affirmed.

George E. Marshall, of Las Vegas, for Petitioner.

Harvey Dickerson, Attorney General, and Geo. Dickerson, District Attorney, Clark

County, for Respondent.

DECISION

Upon stipulation of counsel that the decision in this matter upon the facts would be

controlled by our decision in Ex Parte Colton, handed down this day; for the reasons set forth

in our opinion in that matter the order of the trial court denying release under habeas corpus is

affirmed.

Merrill, C. J.

Badt, J.

Eather, J.

__________

��72 Nev. 89, 89 (1956) Scott v. State��

JAMES De WITT SCOTT, Appellant, v. THE STATE

OF NEVADA, Respondent.

No. 3804

March 22, 1956. 295 P.2d 391.

Appeal from Second Judicial District Court, Washoe County; Harold O. Taber, Judge,

Department No. 3.

Defendant was prosecuted for willfully and lewdly committing a lewd act upon the body

of a girl aged 8 1/2 years. From a judgment of conviction in the trial court, defendant

appealed. The Supreme Court, Badt, J., held that the evidence sustained the conviction and

that there were no reversible trial errors.

Affirmed.

Martin J. Scanlan, of Reno, for Appellant.

Harvey Dickerson, Attorney General, of Carson City, and A. D. Jensen, District Attorney,

Emile J. Gezelin, Assistant District Attorney, both of Reno, for Respondent.

1. Infants. Evidence sustained conviction of willfully and lewdly committing a lewd or lascivious act upon the body

of a girl aged 8 1/2 years. N.C.L.1943-1949 Supp., sec. 10143.

2. Criminal Law. In prosecution for committing a lewd act upon the body of a girl, refusing cautionary instructions was not

error under the circumstances. N.C.L.1943-1949 Supp., sec. 10143.

3. Criminal Law. In prosecution for committing a lewd act upon the body of a girl, refusing instruction respecting the

adoption by the jury of theories deduced from the evidence, leading to innocence and to guilt, was not

error, in view of the direct evidence. N.C.L.1943-1949 Supp., sec. 10143.

4. Criminal Law. Refusing requested instructions covering credibility of witnesses was not error in view of the instructions

given.

5. Criminal Law. Refusing instruction that where defendant had testified in his own behalf, jury, if it found that he was a

worthy witness could give his evidence such weight as it would any other credible witness, or such weight

as the jury saw fit, was not ��

��72 Nev. 89, 90 (1956) Scott v. State��

error, in view of the statute that no special instruction shall be given relating exclusively to the testimony of

the defendant. N.C.L. 1943-1949 Supp., sec. 10959.

6. Criminal Law. Instructions which would further have enlarged upon the definition of reasonable doubt contrary to the

statute were properly refused. N.C.L.1929, sec. 10964.

7. Criminal Law. Instruction which would have told jury that it might consider previous good character of defendant as a

circumstance to rebut the presumption of guilt arising from circumstantial evidence was properly refused

where the evidence was not circumstantial, and where, of course, there was no presumption of guilt.

8. Criminal Law. Where asserted invalidity of warrant issued against the defendant was not urged either before the

magistrate or the district court it could not be urged on appeal. N.C.L.1929, secs. 10728, 10733.

9. Indictment and Information. In prosecution for committing a lewd act upon the body of a girl, proper foundation was laid for the filing

of an information against the defendant.

10. Criminal Law. In prosecution for committing a lewd act upon the body of a girl, evidence of defendant's identification as

the perpetrator of the offense was sufficient to support conviction.

OPINION


Appellant was convicted of willfully and lewdly committing a lewd or lascivious act upon

the body of a girl aged 8 1/2 years. Section 10143, N.C.L.1943-1949 Supp. While numerous

errors are assigned in support of his appeal, his main assignments are: (1) insufficiency of the

evidence to support the verdict, and (2) errors in the giving and refusal of instructions to the

jury. We first dispose of these assignments and then discuss the other questions raised.

(1) It is unnecessary to discuss the facts in detail. The offense occurred August 20, 1953,

on the outskirts of Reno. The child was playing with a boy companion �� )��"��

��72 Nev. 89, 91 (1956) Scott v. State��

aged 10 years in the neighborhood of a ditch and bulrushes not far from the road when the

defendant drove up, entered into a conversation with the children, sent the boy to a store a

few blocks away to purchase soda pop and during the boy's absence was alleged to have

performed the lewd act. As defendant was driving off in his car, the girl's mother, with a

friend, drove up in her car and the little girl ran to her mother complaining of what had been

done. The mother followed defendant's car, obtained the license number and reported same to

the police. Identification of defendant by the girl and by the boy and identification of the

defendant's car by the mother and her companion were definite and convincing to the jury.

Defendant denied the entire episode and asserted that on August 20, 1953, the day of the

crime, he had not been in Reno but had left his home in Fallon, driven to Fernley and

Lovelock on business matters and returned home in the evening. In support of this alibi he

produced a number of witnesses and other evidence supporting the fact that he had been in

Fernley and Lovelock on August 20. Further examination of such evidence and rebuttal

evidence adduced by the state convincingly showed that his presence in Lovelock and Fernley

was not on August 20 but was on the following day, August 21, 1953. There was ample

evidence to support the jury's rejection of the alibi. Defendant also produced numerous

witnesses who testified to his good character and reputation in the community. The verdict

indicates the jury's conclusion that this was outweighed by the positive evidence of

defendant's guilt.

[Headnote 1]

Appellant's attack on the sufficiency of the evidence has to do mainly with the credibility

of the testimony given by the girl and by her boy companion. The girl was, as noted, 8 1/2

years old at the time of the incident. She was 9 years old at the time she testified at the trial.

Before she was called to the stand, one of her teachers testified to the girl's excellence as a

student, being in ��'+7��

��72 Nev. 89, 92 (1956) Scott v. State��

the upper 25% of her class, with an I. Q. of 120, and far ahead of her class in achievement.

The teacher was cross examined at considerable length as to the girl's powers of observation

and perception and her ability to describe what she had perceived. That she was a competent

witness satisfactorily and definitely appeared not only from the teacher's testimony but from

her own testimony. Before the little girl was sworn, she was questioned at considerable length

by the respondent, by the appellant and by the court. After she had testified to what happened,

the record shows 65 pages of cross examination. Virtually the same situation, but even to a

more convincing degree, applies to the boy, who likewise was far ahead of his class both in

intelligence and in achievement, with an I. Q. of 140, and who was subjected to a cross

examination consuming 140 pages of the transcript. The importance of the boy's testimony

lies in his positive identification of appellant, supported by one convincing incident. The

appellant first amused the children by performance of a coin trick, in the course of which it

was obvious to the boy that one of the man's fingers had a portion missing. This fact he had

recited to the authorities before making any identification of the defendant himself.

Appellant's assertions that these witnesses were coached, that they were prompted,

threatened, coerced and led, that their testimony should not be given credence, that the boy

himself was probably guilty of some sex act and was protecting himself, are all without

support in the record. It may be noted in addition that the record contains many additional

circumstances which support their testimony. No further discussion of the evidence appears

necessary.

(2) The court refused to give appellant's requested instruction D 1, as follows: “In this

case, the defendant is charged with crime of lewdness and the Court instructs the jury that

such a charge is easily made and difficult to disprove and for that reason the testimony of the

children who testified in this case should be examined with caution.”

It also rejected defendant's requested instruction D 2,

��72 Nev. 89, 93 (1956) Scott v. State��

as follows: “You are instructed that in cases of this character you should carefully scan the

testimony of the children testifying before reaching a conclusion that the defendant is guilty.”

Appellant concedes that if instruction D 1 had been given, instruction D 2 was not required

but that in rejecting them both, prejudicial error was committed. We treat the two instructions

together under the term generally applied—cautionary instructions. In doing this we overlook,

for the purpose of argument, the very possible impropriety of applying this instruction to “the

children who testified,” which couples the testimony of the boy with the testimony of the

complaining witness.

In assigning as error the court's refusal to give the requested cautionary instructions,

appellant relies on the recent case of People v. McGhee, 123 Cal.App.2d 542, 266 P.2d. 874,

876, in which the California court reversed the judgment of conviction and remanded the

cause for a new trial because the trial court had refused to give a cautionary instruction with

reference to the testimony of the complaining witness. The case however is clearly

distinguishable and undoubtedly called for a cautionary instruction in sex offense cases (1)

where the complaining witness' testimony is uncorroborated, as was the case there, (2) the

fact that the only available direct witnesses are ordinarily the complaining witness and the

defendant, whereby the charge is easy to make and difficult to meet, (3) that such cases

arouse passion and prejudice in the minds of decent people, including jurors, and (4) the ease

with which the charge can be made to satisfy spite, vengeance, vindictiveness and other base

motives. The appellant in that case was charged with pimping. The complaining witness was

a prostitute. The facts recited by the court picture a most degrading situation. Referring to the

presence of elements indicating the necessity for a cautionary instruction, the court said: “All

of these elements are present in this case. * * * The possibility of spite and revenge is

suggested by appellant's testimony that he ejected the complaining witness and her

pseudo-husband from his hotel.

��72 Nev. 89, 94 (1956) Scott v. State��

“* * * The complete absence of corroboration of the complaining witness in any material

detail makes it clear that if the jury had been instructed to examine her testimony with caution

a different verdict might well have been rendered.” In the later case of People v. Quock

Wong, 128 Cal.App.2d 552, 275 P.2d 778, a pandering case, the court approved the McGhee

case, held that it was error to refuse the cautionary instruction, but concluded that such error

was not prejudicial, as there were no inconsistencies in the prosecuting witness' testimony. It

was not inherently improbable and was strengthened and partly corroborated by other

evidence. The case is not in point on the facts nor do we feel that any statements there made

by the court strengthen the assignment of error.

[Headnote 2]

Without further discussing the numerous cases cited by the appellant and by the state and

without in any way detracting from those cases holding, under their facts and circumstances,

that it was error to refuse a cautionary instruction, and confining our conclusion to the facts of

this case in which the competency of the complaining witness was firmly established,

likewise the competency of the boy who also identified the defendant, the corroborating

evidence as to the license number and description of the defendant's car as he left the scene,

the lack of any inherent incredibility in the testimony, the entire lack of any elements of spite,

vengeance, vindictiveness or other base motives, coupled with the full instructions given by

the court as to the credibility of witnesses and the necessity for proof beyond a reasonable

doubt, we are satisfied that there was no error in the refusal to give the cautionary

instructions. See annotation to People v. Lucas, 16 Cal.2d 178, 105 P.2d 102, appearing at

130 A.L.R. 1489, 1491.

[Headnote 3]

(3) Appellant next assigns error in the court's refusal to give his requested instruction D 6,

as follows: “You �� "��

��72 Nev. 89, 95 (1956) Scott v. State��

are instructed that generally speaking, if two theories can be reasonably deduced from the

evidence, one leading to a conclusion of innocence and one to guilt, the jury should adopt the

theory leading to innocence and acquit the defendant.” We are not concerned with the

propriety of such an instruction where the proof is entirely circumstantial. There was no error

in refusing the instruction in view of the direct evidence in this case. People v. De Voe, 123

Cal.App. 233, 11 P.2d 26; People v. Ortiz, 63 Cal.App. 662, 219 P. 1024; People v. Marvich,

44 Cal.App.2d 858, 113 P.2d 223. And see People v. Bonds, 1 Nev. 33.

[Headnote 4]

(4) Error is also assigned in the court's refusal to give the defendant's requested instruction

D 7. The requested instruction dealt generally on the credibility of witnesses, admittedly

covered by other instructions given by the court, and then contained these paragraphs:

[Headnote 5]

“The defendant has testified in his own behalf. The law says that you shall scrutinize

closely his evidence of his interest in the final determination of the case.

“If, after you do so, you find that he is a worthy witness, then you can give his evidence

such weight as you would any other credible witness, or such weight as you see fit.”

[Headnotes 6, 7]

We find no error in refusing this instruction. It is prohibited by the provisions of sec.

10959, N.C.L.1943-1949 Supp., to the effect that “no special instruction shall be given

relating exclusively to the testimony of the defendant, and further provided, that the giving of

such special instruction shall constitute reversible error.” State v. Fitch, 65 Nev. 668, 200

P.2d 991. The court also rejected defendant's proposed instructions D 3, D 4 and D 9, which,

without further discussion, we may say were fairly covered by instructions given. The��%�� "��

��72 Nev. 89, 96 (1956) Scott v. State��

rejected instructions would further have enlarged upon the definition of reasonable doubt

contrary to the prohibition contained in sec. 10964, N.C.L.1929. Exception is also taken to

the court's rejection of requested instruction D 8. The salient matters were covered in

instructions given. The rejected instruction also would have told the jury that it might

consider previous good character as a circumstance to rebut “the presumption of guilt arising

from circumstantial evidence.” The evidence was not circumstantial and there was of course

no presumption of guilt.

[Headnotes 8, 9]

(5) Appellant attacks the issuance of the “John Doe” warrant in this case and the

subsequent insertion by Lieutenant Brodhead, of the Reno police, of appellant's name. He

asserts that a police officer has no authority to issue or change a warrant, that the magistrate

was therefore without jurisdiction to hold the preliminary hearing, that the whole proceeding

was void and that its invalidity was carried forward into the trial to the end that appellant was

deprived of his constitutional rights both under the Nevada and federal constitutions. We find

no merit in this contention. Whether or not the insertion of appellant's name by the police

officer in the John Doe warrant was authorized under the provisions of secs. 10728 and

10733, N.C.L.1929, we may note, first, that this asserted invalidity in the proceedings does

not appear to have been urged either before the magistrate or before the district court and,

secondly, that the present attack involves no constitutional question. There can be no question

but that a proper foundation was laid for the filing of the information against appellant. State

v. Plunkett, 62 Nev. 265, 149 P.2d 101.

[Headnote 10]

(6) Appellant complains bitterly of the manner of his identification by the little girl. He

was identified when accompanied by only one other person, whom the witness knew to be an

officer, and was not identified in company �� "�

��72 Nev. 89, 97 (1956) Scott v. State��

with a number of other persons of not too dissimilar personality. Appellant quotes Professor

Edwin M. Borchard's “Convicting the innocent” in referring to tragic examples of mistakes in

identification and Professor Wigmore in his recommendations of the accepted “lineup”

method of identification. He also quotes Nevada newspapers reciting the near tragedy of a

case subsequently dismissed by the attorney general when the real culprit confessed. While

we agree that every precaution should be taken against a possible miscarriage of justice, we

can find no error in law in the jury's acceptance of the identification of defendant by the two

child witnesses, in the manner appearing in the record and without use of the “line-up”

method. People v. Minor, 388 Ill. 436, 58 N.E.2d 21.

(7) Throughout appellant's voluminous opening and closing briefs are found numerous

charges of unfair methods used by the state in the prosecution of the case. We find none of

these charges justified.

There being no error, and there being amply sufficient evidence to support the verdict, the

judgment and order denying new trial are affirmed.


____________

��72 Nev. 97, 97 (1956) Eckerson v. Rudy��

EDWARD A. ECKERSON, BOLETTA H. RUNQUIST, AILEEN H. MAKI, Appellants, v.

C. E. RUDY, Inc., a Corporation, and the VEGAS RANCHO ACRES, Inc., a Nevada

Corporation, Respondents.

No. 3880

March 28, 1956. 295 P.2d 399.

Appeal from order of the Eighth Judicial District Court, Clark County; A. S. Henderson,

Judge, Department No. 2, denying application for intervention.

Proceeding upon motion of defendant's minority stockholders to intervene after default

judgment had been ��


entered against defendant and had been satisfied. The trial court denied motion and minority

stockholders appealed. The Supreme Court, Merrill, C. J., held that, where default judgment

had been entered against defendant and had been satisfied by time defendant's minority

stockholders applied for intervention, there was then no pending action to which the

intervention might attach.

Affirmed.

Howard W. Babcock, of Las Vegas, for Appellants.

David Zenoff, Calvin C. Magleby and John Manzonie, for Respondents.

1. Judgment. Where, prior to entry of default, defendant's board of directors agreed upon settlement of plaintiff's claim,

and resulting judgment was tantamount to a consent judgment and was satisfied, defendant's minority

stockholders, who sought to undo the settlement, but who did not allege fraud or lack of authority in board

in regard to the settlement, would not be permitted to intervene for purpose of undoing the settlement.

Rules of Civil Procedure, Rule 24(a).

2. Action. Where default judgment had been entered against defendant and had been satisfied by time defendant's

minority stockholders applied for intervention, there was then no pending action to which the intervention

might attach. Rules of Civil Procedure, Rule 24(a).

OPINION


This is an appeal from order of the trial court denying appellants' motion to intervene

under Rule 24(a), N.R. C.P., in an action brought by respondent C. E. Rudy, Inc. against

respondent Vegas Rancho Acres, Inc. The trial court's action was based upon the fact that at

the time intervention was sought the controversy had been settled. In our view the trial court

was correct and should be affirmed. By the time the application for intervention was made a

default judgment had been entered �� %� ��


against the defendant and that judgment had in fact been satisfied.

Appellants contend, however, that the judgment is void for the reason that the default was

improperly entered, defendant having appeared by motion to dismiss. They seek intervention

for the purpose of setting aside the default and judgment and, as minority stockholders of

defendant corporation, defending the action on its behalf.

[Headnote 1]

From the record it appears clear that the default was entered with the consent of the

defendant corporation and that the judgment is tantamount to a consent judgment. The day

prior to entry of default at a meeting of defendant's board of directors the validity of plaintiff's

claim was recognized and a settlement unanimously agreed upon. As to this agreement

appellants allege neither fraud nor lack of authority on the part of the board of directors.

Subsequently, and after default judgment had been entered, the agreement of settlement was

reduced to writing, signed by the parties and carried into effect. An acknowledgment of

satisfaction of judgment has been entered by the plaintiff. Appellants, disapproving of this

disposition of the matter by their board of directors, seek to undo the settlement made by that

board. This they may not do by intervention where the controversy already is ended and

settled to the satisfaction of the parties litigant.

[Headnote 2]

It might well be said that the motion was not a “timely application” under Rule 24(a),

N.R.C.P. See Barron and Holtzoff, Fed. Practice and Procedure (rules edition), sec. 594. In

our view, however, it would more accurately be said that there was no pending action to

which the intervention might attach.

Affirmed.


____________

��72 Nev. 100, 100 (1956) O'Briant v. State��

ROBERT O'BRIANT, Appellant, v. THE STATE OF

NEVADA, Respondent.

No. 3796

April 2, 1956. 295 P.2d 396.

Appeal from the Second Judicial District Court, Washoe County; John S. Belford, Judge,

Department No. 1.

Defendant was convicted of arson. The trial court rendered judgment, and defendant

appealed. The Supreme Court, Merrill, C. J., held that the evidence was sufficient to support

a determination that fire in defendant's store was incendiary in nature and, together with

evidence that defendant was present in store at time fire was ignited, was sufficient to support

conviction for arson.

Judgment affirmed.

(See also 70 Nev. 368)

Samuelson and Johnson, of Reno, for Appellant.

Harvey Dickerson, Attorney General; A. D. Jensen, District Attorney, Washoe County,

William J. Raggio and Emile J. Gezelin, Assistant District Attorneys, for Respondent.

1. Arson. Evidence of the presence of petroleum residue and that fire in rear room of store was composed of two

separate, independent fires, ignited at substantially the same time, was sufficient to support a determination

that fire was incendiary in nature, thus establishing the corpus delicti, and, together with evidence that

proprietor was present in store at time fire was ignited, was sufficient to support conviction of store

proprietor for arson.

2. Criminal Law. Error could not be predicated on admission of photographs in evidence, on ground that photographs

demonstrated that they were defective and did not truthfully represent the subjects which they purported to

portray, where not objection to admission of the evidence upon such ground was made.

3. Witnesses. In prosecution of music store proprietor for arson, evidence, sought to be adduced on cross-examination

of a witness for �� %� ��


the state for the purpose of showing bias and prejudice, that witness' wife had at one time engaged in an

altercation with an employee of defendant was properly excluded on ground that such evidence was

immaterial as remote, in that it did not directly involve either witness or defendant.

4. Criminal Law. In prosecution for arson based on two allegedly separate, independent fires in northeast and southeast

corners of rear room of defendant's store, admitting rebuttal testimony that part of flooring of room had

been replaced not because of char but because of discoloration and water damage was not error, though

nonexistence of char in flooring between the two fires had been thoroughly covered in state's case in chief,

in view of defense evidence that fire was general throughout eastern portion of room.

5. Criminal Law. Error could not be predicated on alleged misconduct of prosecuting attorney in misstating or

misconstruing the evidence in summation to jury, in absence of objection by defense counsel to such

remarks at time of trial or request that jury be instructed to disregard them.

6. Criminal Law. In prosecution for arson based on allegedly incendiary origin of fire in rear room of defendant's store,

denial of new trial on ground of newly discovered evidence that polishing clothes stored in rear room were

subject to spontaneous combustion was not abuse of discretion, since such evidence was merely cumulative

in view of fact that jury was well aware that inflammable and combustible materials were present in room

and of defendant's theory that such materials caused fire.

OPINION


This is an appeal from judgment of conviction of the crime of arson. Appellant's first and

principal contention is that the evidence as a matter of law is insufficient to support the jury

verdict of guilt.

Appellant (defendant) was the proprietor of a music store located in Reno known as the

Modern Music Center. The fire occurred in a service room in the rear of the store on May 30,

1952. It was reported both to the central fire station and to the defendant shortly after seven

o'clock p.m. Fire-fighting equipment arrived at 7:10 p.m. One of the firemen arriving at that

time testified that the fire had just vented itself through a rear ��


window. From this fact, and considering the characteristics of the room, he expressed the

opinion that the fire had then been burning from 20 to 30 minutes.

[Headnote 1]

As to the corpus delicti the evidence stands without substantial dispute. The testimony of

experts establishes that the fire in fact was composed of two independent and unconnected

fires: one in the northeast corner and one in the southeast corner of the room. These fires were

separated to a distance of about 12 feet by a booth which projected out into the room from the

east wall. The fact that the fires were separate and unconnected with each other was

established by testimony as to the charred condition of the flooring and the rafters. In each

corner there was deep char on both floor and rafters. Between the two, in front of and above

the booth, there was no char. The depth of char in each corner likewise indicated that the two

fires had been ignited at substantially the same time. “Incendiary origin of a fire is generally

established by circumstantial evidence such as the finding of separate and distinct fires on the

premises.” People v. Sherman, 97 Cal.App.2d 245, 217 P.2d 715, 718; People v. Hays, 101

Cal.App.2d 305, 225 P.2d 600. Further pointing toward the incendiary character of the fires

was the fact that tests of flooring in each burned corner indicated the presence of petroleum

residue. There can be no question but that these facts are ample to support a determination

that the fire was incendiary in its nature. There is, then, evidence to establish the corpus

delicti.

Defendant contends that the facts are wholly consistent with innocence. He asserts the

proposition, since proof of guilt is dependent upon circumstantial evidence, that where two

theories can reasonably be deduced from the evidence, one leading to a conclusion of

innocence and one to guilt, the jury must adopt the theory leading to innocence and acquit the

defendant.

Applying this proposition to the facts of the case, �� "��


defendant advances the theory that the two fires were in fact connected and constituted but a

single fire. He insists that while the fire could not have crossed the floor from one corner to

the other, it was still reasonably possible that its route had been up the side of the booth,

across its top and down the other side to the far corner of the room. This theory, however,

requires the rejection of positive testimony that there was no indication of fire on top of the

booth: testimony which the jury was entitled to and apparently did believe.

Defendant also advances the theory that the presence of petroleum residue and the

apparent existence of two simultaneous fires is explainable through the possibility of

explosion of inflammable liquids which were present in the northeast corner. This theory,

however, does not fully or satisfactorily explain the apparent simultaneous ignition of the two

fires and other testimony given relative to the pattern of burning which was regarded by an

expert witness as indicative of a deliberate drenching with inflammable liquids. The theory

also disregards testimony rendering improbable the fact that explosion of thin-walled

containers, such as held the inflammables in this case, would throw their contents the

necessary distance.

Under the circumstances the jury may well have felt that the theory that the fire was

incendiary was the only theory reasonably suited to all of the facts.

The evidence connecting the defendant with the crime was subject to substantial dispute. It

is admitted that defendant was at the scene the afternoon of the fire. Defendant and the

members of his family contend that he had left the premises approximately an hour before the

fire was discovered. For the State, witnesses testified to seeing him at the scene a matter of

minutes before the fire was discovered. Several witnesses testified to conversations with the

defendant in which he admitted having been at the store but ten minutes before the fire was

reported to him. One witness testified to a statement by defendant that he had left the store at

exactly ��.��


seven o'clock. Clearly there was evidence from which the jury could have believed that the

defendant was present in the store at the very moment that the fire had been ignited. Such

evidence not only serves to connect the defendant with the crime but also tends to strengthen

the proof of corpus delicti.

In our view defendant's contention that the evidence is insufficient to support the jury

verdict is without merit.

[Headnote 2]

Defendant assigns as error the admission of certain photographs of the scene showing the

charred condition of various portions of the room. Defendant contends in this respect that the

photographs demonstrate that they are defective and do not truthfully represent the subjects

which they purport to portray. No objection to the admission of this evidence upon this

ground was made and accordingly we must reject this contention.

[Headnote 3]

Defendant assigns as error the refusal of the court to permit him to cross examine one of

the State's witnesses to establish bias and prejudice on the part of the witness. In this respect

defendant's offer of proof at the time of trial was to the effect that the wife of the witness had

at one time engaged in an altercation with one of the employees of the defendant. The lower

court ruled that the proposed evidence was immaterial as remote, in that it did not directly

involve either the witness or the defendant. In our view the evidence was properly excluded.

State v. Cullens, 168 La. 976, 123 S. 645; Hargraves v. State, 105 Tex.Cr. R. 227, 288 S.W.

225.

[Headnote 4]

Defendant assigns as error the admission of certain rebuttal testimony with respect to the

nonexistence of char in the flooring in front of the booth and between the two fires: a subject

thoroughly covered in the State's case in chief. It is claimed that defendant's witnesses � ��"�� %��


did not testify that this area was charred and that the subject, therefore, was not a proper one

for proof on rebuttal. There was evidence given by the defendant, however, indicating that

fire was general throughout the eastern portion of the back room. At one point the defendant

himself interjected, “They replaced half the floor in the back room.” Furthermore, the jury

was given a view of the premises at which time they could not have avoided observing the

substantial new flooring which had been placed in the room. The rebuttal witness was the

contractor who had replaced the flooring. The testimony to which the defendant objects was

to the effect that there was no char in the flooring between the two corners and in front of the

booth; that the flooring at that point had been replaced not because of char but because of

discoloration and water damage. In our view it was not error under the circumstances to

permit the testimony to be given on rebuttal.

[Headnote 5]

Defendant assigns as misconduct on the part of the State certain remarks made by counsel

for the State in summation to the jury in which defendant contends the prosecutor misstated

or misconstrued the evidence. As to none of these remarks, however, was any objection made

by counsel for the defense at the time of trial. Nor was any request made that the jury be

instructed to disregard them. This assignment of error is not, then, available to the appellant.

State v. McMahon, 17 Nev. 365, 30 P. 1000; State v. Boyle, 49 Nev. 386, 248 P. 48.

[Headnote 6]

Defendant assigns as abuse of discretion the refusal of the trial court to grant new trial

upon the ground of newly-discovered evidence. The evidence in question would have been

given by certain California witnesses who had conducted experiments with reference to the

inflammable characteristics of polishing cloths identical to some which were stored in the

room in which the fire occurred. The evidence would have tended to establish �� %��


the fact that such cloths had been known to be subject to spontaneous combustion. The jury

was well aware of the fact, however, that inflammable and combustible materials were

present in the back room and of defendant's theory that such materials had caused the fire.

While the new evidence may have added support to such theory, it would not have tended to

dispute proof of the corpus delicti upon which the jury apparently relied and which was

wholly inconsistent with that theory. Under the circumstances denial of new trial was not an

abuse of judicial discretion. Accord: State v. Willberg, 45 Nev. 183, 200 P. 475.

Affirmed.


__________

��72 Nev. 106, 106 (1956) Sefton v. State��

WALTER HORACE SEFTON, Appellant, v. THE

STATE OF NEVADA, Respondent.

No. 3863

April 4, 1956. 295 P.2d 385.

Appeal from judgment of Eighth Judicial District Court, Clark County; Frank McNamee,

Judge, Department No. 1.

Defendant was convicted of murder. The trial court rendered judgment, and defendant

appealed. The Supreme Court, Badt, J., held that proof of corpus delicti and defendant's

corroborating confession sustained conviction.

Affirmed.

(Rehearing denied May 24, 1956.)

(Petition for a writ of certiorari was denied by the Supreme Court of the United States

December 17, 1956. See also 73 Nev. ...., 306 P.2d 771.)

John W. Bonner, of Las Vegas, for Appellant.

Harvey Dickerson, Attorney General, of Carson City;


George M. Dickerson, District Attorney, Gordon L. Hawkins, Robert L. Gifford, Ve Noy

Christofferson, Arthur Olsen, Deputy District Attorneys, all of Las Vegas, for Respondent.

1. Homicide. Evidence in murder prosecution was sufficient to establish the corpus delicti.

2. Homicide. Corpus delicti in a homicide case consists in elements of death and that death was by criminal agency,

and identification of defendant as the criminal agency is not necessary.

3. Criminal Law. Proof of corpus delicti need not be as full and conclusive where there is a confession as would be

necessary if there were no confession to corroborate it.

4. Criminal Law. An extrajudicial confession does not warrant conviction unless corroborated by independent evidence of

corpus delicti, but a confession will support conviction even though uncorroborated otherwise than by

proof of corpus delicti, and the corroborating evidence need not be such as to connect defendant with the

crime.

5. Criminal Law. In homicide prosecution, proof of corpus delicti and defendant's corroborating confession sustained

conviction.

6. Criminal Law. Record on appeal from conviction of murder disclosed that defendant's confession was properly admitted

as voluntary.

7. Criminal Law. A defendant has a right to be free from shackles at his trial, and shackling is justified only where there are

exceptional conditions of fact and circumstance.

8. Criminal Law. Where it was made to appear, in murder prosecution, that defendant had broken jail on day before trial

and had been a party to an aggravated battery on the jailer, requiring defendant to be handcuffed on first

day of trial was not abuse of discretion.

9. Criminal Law. In prosecution for murder of woman in a “jungle,” evidence purportedly tending to show woman's

propensity to frequent “jungle” was not material to question whether defendant had taken her to “jungle,”

and was properly excluded.

10. Criminal Law. In murder prosecution, wherein state introduced confession, defendant's self-serving statements to effect

that he had confessed in another state in order to be returned to Nevada, and ��


had repudiated confession upon reaching Nevada, were properly excluded, particularly where it appeared

that he had not repudiated confession until ten days after returning to Nevada.

11. Criminal Law.

In murder prosecution, statements in defendant's opening to effect that defendant's foster parents were

convinced of his innocence and that defendant's counsel had not desired to see defendant wronged could

not have been proved, and were properly stricken.

12. Criminal Law. It is duty of counsel to refrain from stating facts which he cannot prove or will not be permitted to prove.

13. Criminal Law. Record on appeal in murder prosecution did not disclose that alleged trial errors, including errors in

rulings on evidence, had been prejudicial to defendant or had resulted in miscarriage of justice.

OPINION


Appellant was convicted of the first-degree murder of Jacqueline Kelly in Clark County,

Nevada, and sentence of death imposed. His appeal from the judgment and from the order

denying his motion for new trial assigns the errors hereinafter discussed in the order of the

seriousness and importance accorded them by the appellant in his opening and closing briefs

and in his oral argument.

(1) Appellant's most seriously presented assignment of error revolves about the contention

that, aliunde his extrajudicial written confession, there is no proof of the corpus delicti; that

there is no corroboration of his confession; that accordingly, in the first instance, the State's

case falls by reason of failure to prove the corpus delicti; that by reason of the failure to prove

the corpus delicti, there was no foundation for the admission of evidence of the written

confession.

[Headnotes 1-5]

On Christmas day, December 25, 1953, four men, who had gone to a desert area on the

outskirts of Las Vegas, an area sometimes referred to as “the jungle,” for the ��


purpose of rifle practice, found the dead body of Jacqueline Kelly. One of the men remained

with the body but was careful not to disturb it or the area around it. The other three drove

back into the city to report their discovery and the sheriff's office sent three deputies to the

scene. Sundry photographs were taken and a plaster cast made of a boot print in the sand a

few feet from the body. Various garments of the deceased were found close to the body—her

left boot (her right boot was on her foot), a square scarf, slacks or jeans, a dark green blouse,

a brassiere, etc. The body was identified as that of Jacqueline Kelly and was removed to the

mortuary where an autopsy was performed, disclosing, in addition to four lacerations on the

head, four prominent lacerations in the neck and body, besides contusions about the right

forearm, both hands and both thighs. It was the doctor's opinion that the wounds were caused

by a fairly sharp instrument such as a pocket knife. The skull fracture and resulting

hemorrhage, two stab wounds in the chest and two additional wounds were, in the doctor's

opinion, the three primary causes of death. Evidence of the matters above recited was

received before the State offered defendant's written confession. Thus the fact of death and

that it resulted not from natural causes, accident or suicide but from the criminal agency of

another person had been clearly proved beyond a reasonable doubt. The corpus delicti had

thus been established. State v. Fouquette, 67 Nev. 505, 532, 221 P.2d 404. We reject the

contention of appellant made in reliance on State v. Teeter, 65 Nev. 584, 200 P.2d 657, that

proof of the corpus delicti must include not only the element of the death of the deceased and

that it was by a criminal agency, but a third element, namely, the identification of the

defendant as the criminal agency. Nor need the proof of the corpus delicti “be as full and

conclusive as would be essential if there was no confession to corroborate it. Evidence of

facts and circumstances attending the particular offense * * * or of facts to the discovery of

which the confession has ��


led, and which would not probably have existed if the offense had not been committed, or of

facts having a just tendency to lead the mind to the conclusion that the offense has been

committed, would be admissible to corroborate the confession. The weight which would be

accorded them, when connected with the confession, the jury must determine, under proper

instructions from the court.” Norcross, J., In re Kelly, 28 Nev. 491, 83 P. 223, 225, quoting

Matthews v. State, 55 Ala. 187. It is stated in 22 C.J.S. 1472, Criminal Law, sec. 839: “* * *

[I]t is the general rule * * * that an extrajudicial confession does not warrant a conviction

unless it is corroborated by independent evidence of the corpus delicti. * * * [A] conviction

based on a confession will stand, although it is uncorroborated otherwise than by proof of the

corpus delicti.” Footnote 41 to this text cites many authorities in support of this rule and,

where corroborating evidence has been adduced the rule is further stated (id. footnote 41, (1):

“The corroborating evidence need not be such as to connect accused with the crime.”

Hundreds of cases in support of this rule are cited in the note, as well as in the additional

footnotes appearing in the pocket part, and such rule would seem to be of well-nigh universal

application. Not only was the corpus delicti proved aliunde the confession, but the same

received ample corroboration in the defendant's leading the officers to the scene of the crime,

the correspondence of the wounds in the body with those described in the confession, the

correspondence of the kind and color of the victim's clothing, the condition of the victim's

brassiere as cut by the upthrust of defendant's knife as described by him, the defendant's

possession of his foster father's knife corresponding in description with the murder weapon

described in his confession, and the correspondence of the plaster cast of the footprint near

the body with the defendant's boot. These were all matters of corroboration whose weight was

for the determination of the jury. It was likewise the jury's province to reject the defendant's

testimony of his visit to the scene of the ��


crime, with another girl, at which time he saw the victim's body lying on the ground, which

he would have had the jury believe accounted for his trip to the scene, his knowledge of the

route, his knowledge of the nature of the wounds and the nature and color of the victim's

clothing, and accounted likewise for his footprint near the body. The jury was likewise

authorized to reject his story that he failed to report his alleged discovery to the police for fear

of being himself accused of the crime.

We come then to the actions of the defendant, his prolonged drinking debauches with his

friend Charles Mobley, his statement to Mobley that he had killed a girl, had left no clues, but

that the “heat was on him” and he wanted to get out of town, his departure from Las Vegas

about January 22, 1954 with Mobley, his subsequent arrest in Flint, Michigan, on a burglary

charge, his plea of guilty thereto and his volunteered statements to the Michigan officers that

he had killed Jacqueline Kelly in Las Vegas, the corroboration by telephone of the fact that

Jacqueline Kelly's death still remained unsolved there, followed by the voluntary written

confession made by appellant to the Michigan officers. The written confession was by way of

questions and answers, all of which were recorded on a tape, transcribed, read by the witness,

corrected by him in a minor respect and signed and sworn to by him. Prior to the time he

stated to the Michigan officers that he had killed Jacqueline Kelly, they had no knowledge of

the matter whatsoever. The initial part of the question and answer document was a statement

by the Michigan officer to appellant as follows: “During our conversation you have admitted

to us that you were involved in a murder in the City of Las Vegas in the State of Nevada. I

want to inform you that we would like a statement regarding this matter. You do not have to

give us a statement if you do not desire to do so. If you should give us a statement, everything

you tell us must be the truth, the whole truth and nothing but the truth, to the best of your

knowledge and recollection. The statement must be given ��"�� "� ��"��


freely and voluntarily without any force, threats or promises having been made on our part.

Such a statement may be used either for or against you as the case might be, should this

matter come to trial in criminal court. Knowing these things, will you give us a statement? A.

Yes.” Appellant then proceeded in question and answer form, as noted, to recite the following

facts, in which recital we have eliminated many incidental and unessential statements and

which we have condensed for purposes of brevity. On December 18, 1953 appellant drove to

a liquor store in Las Vegas to buy some wine. He met Jacqueline Kelly and the two drove to a

desert area about a mile north of Vegas Heights, a suburb of Las Vegas. They drank the wine

and engaged in acts of sexual intercourse, returned and purchased more wine and again drove

back to the desert area and drank it. On a third trip to town appellant sold his auto jack for $2

to a secondhand dealer, purchased more wine and the two returned to the desert area. There,

while seated in the car, an argument started. Jacqueline said she was going back to town and

say that appellant had raped her. He struck her on the left side of the jaw and mouth with his

right hand, got out of the car, went around to the other side, opened her door and jerked her

out, struck her and knocked her down, got a knife out of the glove compartment, stabbed her

in the throat and several other places. There was some wine left in the bottle, which he drank,

then turned the car around as Jacqueline was getting to her knees and drove past her and back

to town. She was then bleeding severely from the throat. Appellant gave further descriptive

information. The victim had on a green blouse and a pair of cowboy boots and a pair of Levis.

On the way back he threw the knife out of the window. It had a green plastic handle. He also

threw the wine bottle away. He wiped the blood from his hands and the knife blade with his

handkerchief, which he also threw away. He then drove up to the house where his foster

parents lived and went to sleep in the car. His foster father subsequently woke ��


him up and had him go into the house to bed. He left Las Vegas three or four weeks later with

Charles Mobley, who had come to live with him and with whom, as noted above, he had

indulged in much drinking. (He and Mobley had become acquainted while both were serving

terms in the Nevada state penitentiary.) Both he and Mobley had drawn all the money they

had coming from work, drank it up and drove to Phoenix. Appellant called his foster mother

from Phoenix, told her they were drunk and broke and that they would bring the car back

home if she would send them money. She sent $5. In the meantime he borrowed $10 and a

tank of gas from a cousin, and they proceeded to El Paso, then to Houston, then to Memphis,

Louisville and to Flint, Michigan. The car they were driving was being paid for in installment

payments. They abandoned the car about sixteen miles from Pontiac, Michigan.

Appellant waived extradition and was brought back to Nevada. About ten days after being

returned to Nevada, defendant agreed to take the officers to the scene “where he told them he

had killed this woman.” Thereupon defendant and three officers and the deputy district

attorney proceeded to the area. The defendant directed the route to be taken and what turns

should be made, what streets they should take—under the railroad pass, out an old dirt road,

down a little hill, and the defendant finally said: “Stop right about here.” He got out of the

car, hesitated a few seconds, walked right to the scene and said: “This is where I did it.”

Photographs were taken showing the defendant pointing to the spot. All of this was done

voluntarily by him. He showed the officers where he had parked his car, where the act had

been committed, how he got back into the car, drove to the base of the hill, backed around

and went out by the same way he had come in. On the way back he indicated about how he

had thrown the knife and bottle away. The party searched the area for about two hours but

failed to find the knife.

When a Clark County deputy sheriff went to Flint, 8��


Michigan, to bring appellant back to Nevada he searched appellant's automobile and

discovered a pair of boots which appellant stated were his. The boots and the plaster cast of

the boot print near the body were received in evidence. A sheriff's deputy testified that they

matched perfectly “by measurement.” Appellant characterizes any attempt to fit the boot to

the cast as ridiculous. We do not find it so. Considering the fact that the print was made in the

sand and that some seven days had elapsed before the impression was made, the jury would

have been justified in considering the imprint surprisingly clear and in finding convincing

correspondence between the boot and the cast of the imprint. (By stipulation and order of the

court the original exhibits were sent up to this court.) Defendant's foster father collected

knives as a hobby and had possessed a knife closely fitting the description of the knife

described in defendant's confession. Such knife was in defendant's possession the last time his

foster father had seen it—although his foster father testified that he had instructed defendant

to return the knife to the tool box where it was usually kept and that such had been done.

[Headnote 6]

(2) In view of our recital as to the manner in which the defendant's confession was

executed, we must also reject appellant's contention that the confession was not voluntary.

(3) During the first day of the trial appellant appeared in court handcuffed and error is

assigned in the court's refusal to require the removal of the handcuffs. The following

occurred: “By the Court: Let the record show that Mr. Bonner requested that the defendant

appear in court without handcuffs. The request was objected to by Mr. Mendoza upon the

ground that the defendant, within the past twenty-four hours, had broken jail, and was a party

to aggravated battery on the jailer, and was not apprehended until 5:00 a.m. this day. For the

reason given by Mr. Mendoza, the District Attorney, the request of Mr. Bonner is denied.”


[Headnotes 7, 8]

And on the following day: “By the Court: The Sheriff having indicated to the Court that he

felt it was no longer necessary to have the defendant appear in Court with handcuffs, it is

ordered, and the Sheriff is directed to remove said handcuffs from the defendant prior to his

entry into the Court Room. The record will show this order was made outside of the presence

of the Jury.” In support of this assignment appellant quotes at length from State v. McKay, 63

Nev. 118, 165 P.2d 389, 167 P.2d 476. We concur in the view there expressed that the right

of a defendant to be free from shackles at his trial is an important right and that the shackling

is legally justifiable only in the existence of exceptional conditions of fact and circumstance

reasonably rendering a departure necessary. But we cannot say that the course pursued was

not, in the exercise by the court of a sound judicial discretion, reasonably necessary and

justified. On rehearing, in State v. McKay, supra, the court noted the reasonable apprehension

that if the handcuffs were removed, the defendant, a dangerous and desperate man, might at

any time, even at the time of the trial, attempt to escape, and that appellant himself by his

own conduct was the primary cause of any prejudice entailed by his being handcuffed. Here,

as in the McKay case, we find no abuse of discretion. Appellant also relies on Odell v.

Hudspeth, 10 Cir., 189 Fed.2d 300, which recites the rule against handcuffing except to

prevent the escape of the prisoner or to prevent him from injuring bystanders and officers of

the court or to maintain a quiet and peaceable trial. The district court, however, refused to

interfere on habeas corpus and the Circuit Court of Appeals, Tenth Circuit, affirmed. There,

as here, no such situation existed as in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67

L.Ed. 543, or as in Shepherd v. Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740.

[Headnote 9]

(4) Appellant sought to introduce in evidence fifteen copies of criminal complaints and

docket entries from ��2��9��


the Las Vegas municipal court, in which the deceased was the defendant. Outside of one petty

larceny charge, the complaints all charged the deceased with being drunk and disorderly in a

public place in the city. Appellant's theory is that these complaints would have established

such propensity and habits of drunkenness, vagrancy, etc. as to indicate to the jury her habit

of frequenting “the jungle” where the crime took place, and would have tended to disprove

the State's theory that appellant took her to the area and killed her there. Error is assigned in

the court's sustaining an objection to the admission of these records on the ground that they

were irrelevant and immaterial. Even if we assume the rather doubtful conclusion that the

deceased's propensity for being found drunk in a public place would likewise establish her

propensity (or corroborate defendant in this regard) to frequent the jungle, proof indicating

the probability that she might have been there on earlier occasions, could hardly be material

to the inquiry as to whether she had been killed at that spot by the defendant on December 18,

1953. We find no error in rejecting this proof.

[Headnote 10]

(5) In repudiating his confession appellant insisted that he originally confessed the murder

to the Michigan officers because he feared a life sentence there as a habitual criminal and

wanted to be returned to Nevada where he would have the assistance of his foster parents, and

because he understood from the Michigan officers that they would permit his return to

Nevada on nothing less than a murder charge. Accordingly, he sought to introduce certain

self-serving statements made by him which he claims would tend to prove that he repudiated

his confession immediately upon his arrival in Nevada. In the first place, the testimony was

properly excluded as self-serving statements; in the second place, the evidence rather

conclusively shows that these statements were not made for some ten days after his arrival

and after he had voluntarily directed the officers to the scene ��


of the crime. Appellant asserts that the prosecuting attorney and his witnesses sought to make

it appear to the Jury that the repudiation of the confession was concocted in the mind of

defendant's counsel, and that defendant should have been given an opportunity to refute this

impression. We may put aside, as of no great moment, the inconsistency of the first

assignment, namely, that the confession was not voluntary, with the present assignment, that

the defendant concocted the confession as a ruse to get back to Nevada and urged the

confession upon the Michigan officers who were reluctant to receive it at all. In any event, the

so-called immediate repudiation was some ten days after his return and after he had directed

the officers to the scene. Nor was the repudiation relied upon a repudiation at all, but rather a

refusal to discuss the matter. Appellant's entire theory of his successful persuasion of the

Michigan officers, including minute details of the time, place and circumstances of the crime,

description of the wounds and of the victim's clothing, etc. (subsequently substantiated and

corroborated), just for the purpose of getting back to Nevada to face a first-degree murder

charge, apparently seemed so fantastic to the jury that they gave it no credence. Not only do

we find no error, but we do not think that it may be reasonably said that the jury could have

been influenced by the testimony.

[Headnotes 11, 12]

(6) Appellant assigns error in the court's striking from the record certain parts of

appellant's opening statement to the jury which asserted the conviction of defendant's foster

parents that defendant was innocent and counsel's desire not to see the defendant wronged.

Such matters could not have properly been made the subject of testimony and were properly

excluded. “It is the duty of counsel * * * to refrain from stating facts which he cannot, or will

not, be permitted to prove.” State v. Olivieri, 49 Nev. 75, 236 P. 1100.


[Headnotes 13]

No error is assigned growing out of the giving or refusing instructions to the jury. Several

errors are assigned in the court's rulings on evidence in addition to those already discussed.

They are not of sufficient importance or seriousness to warrant discussion. Appellant asserts

from time to time that by reason of the errors assigned, there has been a lack of due process in

violation of both the state and federal constitutions. Such assignments have been given

careful consideration, but we find the same to be without merit. It is our conclusion that the

defendant has not been prejudiced by reason of any of the assigned errors and that there his

been no indication of any miscarriage of justice. State v. Lindsay, 63 Nev. 40, 161 P.2d 351.

The judgment and the order denying appellant's motion for new trial are affirmed, and the

district court is directed to make the proper order for the carrying into effect by the warden of

the state prison of the judgment rendered.


____________

��72 Nev. 118, 118 (1956) Kilb v. Porter��

JOHN KILB, Appellant, v. HOWARD HUGHES PORTER, Executor of the Will of Robert

Evans Hughes, Deceased, Respondent.

No. 3885

April 11, 1956. 295 P.2d 856.


Department No. 2.

Action against executor of will of decedent, after rejection of plaintiff's claim, for value of

medical services rendered to decedent, in his lifetime, by plaintiff. An order dismissing the

action was entered in the trial court and the plaintiff appealed. The Supreme Court, Eather, J.,

held that evidence was sufficient to create �� "�� .�� "�� 3��

��72 Nev. 118, 119 (1956) Kilb v. Porter��

issues upon fact of medical treatment allegedly furnished defendant's decedent during his

lifetime by plaintiff and extent and value of such treatment.

Reversed and remanded.

Joseph P. Haller and John S. Belford, of Reno, for Appellant.

Oliver C. Custer, of Reno, for Respondent.

1. Executors and Administrators. Evidence was sufficient to create issues upon fact of medical treatment allegedly furnished to defendant's

decedent during his lifetime by plaintiff and extent and value of such treatment.

2. Trial. Upon motion under Rule of Civil Procedure at completion of plaintiff's case to dismiss action upon

ground that a sufficient case for court sitting without a jury had not been proved, evidence must be

regarded in light most favorable to plaintiff, and court even though acting without a jury may not consider

weight or credibility. Rules of Civil Procedure, Rule 41(b).

OPINION


This is an appeal taken by the plaintiff below from order of the trial court dismissing

plaintiff's action. The order was entered on defendant's motion under Rule 41(b), N.R.C.P., at

the completion of plaintiff's case upon the ground that a sufficient case for the court sitting

without a jury had not been proved. Upon this appeal plaintiff contends that a sufficient case

had been proved and that the court improperly granted the motion to dismiss; that the matter

should have been permitted to proceed to a consideration of the merits.

Plaintiff brought his action against defendant, as executor of the will of Robert Evans

Hughes, deceased, after rejection of his claim, for the value of medical services rendered to

Hughes, in his lifetime, by plaintiff.

The plaintiff presented testimony of five witnesses in addition to himself to establish that

he had treated the ��

��72 Nev. 118, 120 (1956) Kilb v. Porter��

decedent. He himself testified as to the number of occasions on which decedent had visited

him, but was not permitted to testify as to the reason for those visits or what occurred during

them. The individual witnesses, however, did testify to conversations had with the decedent

in which he admitted that plaintiff was treating him and that he was highly appreciative of the

treatment rendered. One witness testified to having observed plaintiff in the process of

treating decedent on at least a half dozen occasions. Another witness testified to the

reasonable value of treatments of this nature.

[Headnote 1]

In our view a sufficient case was made to create issues upon the facts of treatment and its

extent and value.

[Headnote 2]

Respondent contends that the record contains evidence from which it may be inferred that

decedent, as a lonely old man who liked to visit people and who regarded plaintiff highly as a

friend, was visiting plaintiff in a social rather than professional capacity. Respondent also

contends that certain of the plaintiff's witnesses indicated bias in favor of the plaintiff and that

the court was entitled to disbelieve their testimony. Upon this motion, under N.R.C.P.,

however, the evidence must be regarded in the light most favorable to the plaintiff, and the

court even though acting without a jury may not consider weight or credibility. Gordon v.

Cal-Neva Lodge, 71 Nev. 336, 291 P.2d 1054. Issues then, remained for determination upon

the merits and the court was in error in granting motion to dismiss.

In taking this view of the issue presented, we find it unnecessary to discuss the

applicability of the so-called dead man's rule (secs. 8966-8970, N.C.L.1929) elaborately

briefed and argued by the parties.

Reversed with costs to appellant and remanded with direction that the order of dismissal

be set aside, and for further proceedings.


____________

��72 Nev. 121, 121 (1956) Jones v. First National Bank��

IN THE MATTER OF THE ESTATE OF EDNA UMBAUGH JONES, Also Known as and

Sometimes Called EDNA L. JONES, EDNA UMBAUGH and E.L. JONES, Deceased.

JOHN PAUL JONES, Appellant, v. THE FIRST NATIONAL BANK OF NEVADA,

Executor of the Estate of Edna Umbaugh Jones; Harry Edward LeClaire, Donald G. LeClaire,

Minor Sons of Harry W. LeClaire; Harry W. LeClaire, Harry M. LeClaire and Katherine

LeClaire, Respondents.

No. 3890

April 26, 1956. 296 P.2d 295.


Department No. 1.

Proceeding in the matter of the estate of deceased testatrix, wherein construction of will

was sought. The trial court entered an order adverse to the testatrix' husband, and he appealed.

The Supreme Court, Eather, J., held that codicil, which was drawn by testatrix herself, giving

to her husband a “liveable wage until his death not to exceed $200 a month up to $2,400,”

was a bequest of $2,400 to husband and not a bequest of $2,400 a year.

Affirmed.

Foley Brothers, of Las Vegas, for Appellant John Paul Jones.

A.W. Ham, Sr. and A.W. Ham, Jr., of Las Vegas, for Respondent The First National Bank

of Nevada.

Jones, Wiener & Jones, of Las Vegas, and Bridgett & Marcus, of San Francisco,

California, for Respondents Katherine LeClaire; Harry Edwards LeClaire, and Donald G.

LeClaire, minor sons of Harry W. LeClaire; and Harry W. LeClaire.

John W. Bonner, of Las Vegas, for Respondent Harry H. LeClaire.


1. Wills. Court may not vary terms of will to conform to court's views as to true testamentary intent.

2. Wills. In construction of will, question before court was not what testatrix actually intended or what she meant

to write, but rather was confined to a determination of the meaning of the words used by her.

3. Wills. Any evidence is admissible which, in its nature and effect, simply explains what testator has written, but

no evidence can be admissible which, in its nature or effect, merely shows what he intended to have

written.

4. Wills. Question in expounding a will is not what testator meant, as distinguished from what his words express,

but merely what is the meaning of his words, and extrinsic evidence, in aid of exposition of his will must be

admissible or inadmissible with reference to its bearing on issue which such question raises.

5. Wills. Codicil, which was drawn by testatrix herself, giving to her husband a “liveable wage until his death not

to exceed $200 a month up to $2,400,” was a bequest of $2,400 to husband and not a bequest of $2,400 a

year.

6. Wills. Court, in construing will, may not prefer one inconsistent provision over another without invading the

field of testamentary intent, and if the two provisions can not stand together, both must fall.

OPINION


This is an appeal from an order of the trial court in administration of a decedent's estate

directing the payment of a cash bequest pursuant to petition for distribution filed by the First

National Bank of Nevada as Executor of the decedent, Edna Umbaugh Jones. The sole

question upon this appeal concerns construction of the will; whether in directing payment of

the cash bequest the court erred in its construction.

The clause in question is contained in a codicil drawn by the decedent herself. It reads “To

my husband, John :��;��


Paul Jones, I bequeath a liveable wage until his death not to exceed $200 a month up to

$2,400.”

The legatee contends that this is an unambiguous bequest of a life income of not to exceed

$200 a month; that the words “up to $2,400” must be read to mean “up to $2,400 a year”; that

to read these words in any other way would be to create an ambiguous limitation upon the

bequest, which limitation by virtue of its ambiguity must fall. In the alternative, the legatee

contends that if the bequest as he construes it be not clear, at least an ambiguity exists which

should be resolved by resort to extrinsic evidence. Evidence was offered by him for this

purpose but was rejected by the court.

The court held that the bequest was an unambiguous cash bequest of $2,400 payable at not

to exceed $200 a month from death of testatrix. More than a year having elapsed since the

death the court ordered the executor to pay to the legatee forthwith the sum of $2,400. The

legatee has taken this appeal.

[Headnote 1-4]

At the outset the limits of the court's power to construe the language of the will should be

noted. A court may not vary the terms of a will to conform to the court's views as to the true

testamentary intent. The question before us is not what the testatrix actually intended or what

she meant to write. Rather it is confined to a determination of the meaning of the words used

by her. As stated by Wigram (Extrinsic Evidence in Aid of the Determination of Wills,

Second American Edition, pages 53 and 54), “* * * any evidence is admissible which, in its

nature and effect, simply explains what the testator has written; but no evidence can be

admissible which, in its nature or effect, is applicable to the purpose of showing merely what

he intended to have written. In other words, the question in expounding a will is not—What

the testator meant? as distinguished from—What his words express? but simply—What is the

meaning of his words? And extrinsic evidence, in �� 3��


aid of the exposition of his will, must be admissible or inadmissible with reference to its

bearing upon the issue which this question raises.” See also cases in Anno. 94 A.L.R. 257.

Certainly it may be said that the clause of bequest, giving the words their ordinary

meaning, contains two inconsistent testamentary provisions: One, for an income for life not to

exceed $200 a month, and second, for a sum not to exceed $2,400 at $200 a month. In this

respect it may be said that the bequest is ambiguous. It should be noted, however, that the

ambiguity is not in the meaning of the words used. The words are not equivocal. There is no

latent ambiguity. The words themselves are of such common usage that they can hardly be

said to be subject to construction. It must in good sense be recognized that under no accepted

usage can the words “up to $2,400” be read to mean “up to $2,400 a year.” The ambiguity

exists solely for the reason that two apparently inconsistent provisions have been made.

Appellant's contention that, as a matter of law, the provision of a life income must prevail

is without merit. His authorities, In Re Murray's Estate, 70 Cal.App.2d 300, 160 P.2d 880,

and Noble v. Noble, 205 Oklahoma Rep. 91, 235 P.2d 670, 26 A.L.R.2d 1200, deal with

cases where the clause of bequest can be said to stand alone and unambiguous. The clause of

limitation itself created the ambiguity in respect to the otherwise unambiguous bequest. In the

case before us there is but one clause. Neither bequest nor limitation can be said to stand

alone and be clearly ascertainable.

We may not, then, ignore either of the two inconsistent provisions without changing or

varying the terms of the will. To give to the words used any other than their recognized

meaning or to hold that extrinsic evidence may be admitted for that purpose would be to

sanction the changing of the will for the purpose not of enforcing an unambiguous bequest

but rather of rendering an ambiguous bequest unambiguous. We shall, by varying ��


the will for such purpose, have invaded the field of testamentary intent. If the ambiguity, then,

is to be resolved, the two provisions must be reconciled.

[Headnote 5]

The action taken by the court below might be said to have accomplished this end. Each of

the inconsistent provisions was treated as a limitation upon the other; $200 a month until

death, but only up to $2,400; $200 a month up to $2,400 but only until death. Accepting the

words used and giving to them their plain meaning, this would appear to permit a disposition

achieved without adding any words, or deleting any from the codicil.

[Headnote 6]

It is contended that this is no reasonable “reconciliation” since the limitation upon the life

income is such as to destroy the plain meaning of that provision. Even if this be so it cannot

strengthen the legatee's position. We still may not prefer one inconsistent provision over

another without invading the field of testamentary intent. If the two provisions cannot stand

together, both must fall. Ordinarily, then, such a patent ambiguity would result in the failure

of the entire bequest.

Such failure is, however, saved in this case by the fact that in one respect the testamentary

intent is clear; as to the minimum bequest intended. Under any possible construction of the

will a minimum of $2,400 at $200 a month (assuming the continued life of the legatee for one

year) was bequeathed. It may, then, be said that as to such minimum there is no ambiguity.

Under either position (that a reconciliation of the provisions is possible, giving to the

words used their plain meaning; or that it is not possible) the trial court must be affirmed.



____________

��72 Nev. 126, 126 (1956) Chappellet v. Birbeck��

HELEN BULLOCK CHAPPELLET, Appellant, v. F.V. BIRBECK, and FRANK M.

BIRBECK, Doing Business Under the Copartnership Name, F.V. BIRBECK CO.,

Respondents.

F.V. BIRBECK AND FRANK M. BIRBECK, Doing Business Under the Copartnership

Name, F.V. BIRBECK CO., Appellants, v. HELEN BULLOCK CHAPPELLET, Respondent.

Nos. 3873 and 3874

May 3, 1956. 296 P.2d 946.

Appeal from the Second Judicial District Court, Washoe County; Harold O. Taber, Judge,

Department No. 3.

Action by lessors for damages for breach of agricultural lease. The trial court found that

lessee had been justified in cancelling lease for insufficiency of water available for irrigation,

but that lessee was nonetheless liable in damages for failure to perform covenant to install

irrigation works. Both parties appealed. The Supreme Court, Badt, J., held that where water

was insufficient to irrigate land held by lessee under agricultural lease expressly predicated

upon existence of sufficient supply of water, and lessee cancelled lease and vacated premises

under provision authorizing cancellation for water insufficiency, lessee was not liable for

damages for failure to perform covenant to install irrigation works.

(Petition for rehearing denied July 11, 1956.)

Affirmed in part. Reversed in part.

Sinai & Sinai, of Reno, for Chappellet.

Springmeyer & Thompson, of Reno, for Birbeck.

1. Waters and Water Courses. Where lessors had water right to divert and use five cubic feet per second of underground water, the

source of which was drain ditch which emptied into creek, and, though lessors had right to pump their

underground water from rediversion ��


point in creek, point of diversion specified in certificate of state engineer was located in drain ditch,

absence of sufficient underground water in drain ditch to provide more than .085 c.f.s. made finding, that

underground water available was insufficient, mandatory, within agricultural lease provision authorizing

lessee to cancel if water was insufficient to irrigate land.

2. Water and Water Courses. Where water right permit issued by state engineer was expressly limited to water available at point of

diversion, and lessee, in action by lessors for breach of lease, sought to prove insufficiency of water

available at point of diversion, such proof was not objectionable as attack upon lessors' water right, or upon

determinations of state engineer.

3. Water and Water Courses. In action by lessors for damages for breach of agricultural lease, under which lessee had right to cancel if

water available for irrigation was insufficient, evidence as to extent of underground water applicable to

lessors' water right at point of diversion was properly received; such evidence clearly supported court's

finding that there was an insufficiency of water; and court's conclusion that lessee had right to cancel lease

properly followed therefrom.

4. Waters and Water Courses. Where water was insufficient to irrigate land held by lessee under agricultural lease expressly predicated

upon existence of sufficient supply of water, and lessee cancelled lease and vacated premises under

provision authorizing cancellation for water insufficiency, lessee was not liable in damages for failure to

perform covenant to install irrigation works.

5. Waters and Water Courses. Where, in lessors' action for breach of agricultural lease containing allowance of attorney fee to

prevailing party in event of litigation over lease, it was determined that lessee's cancellation of lease was

justified under lease by insufficiency of water available for irrigation, and that lessee was not liable in

damages, attorney fee would be awarded lessee, not lessor.

OPINION


On this appeal and cross appeal, revolving about an agricultural lease and the acts of the

parties thereunder, the main points presented for our consideration are (1) the sufficiency of

the evidence to support the court's finding of an insufficiency of water to irrigate the specified

acreage, (2) the propriety of the court's conclusion,


based thereon, that under the terms of the lease the lessee thereupon rightfully canceled the

same, and (3) the lessee having admitted that she had not installed the irrigation works

required under the provisions of the lease, the propriety of the court's conclusion that by

reason of the terms of the instrument she was liable in damages for such failure despite the

finding and conclusion above recited.

We have concluded (1) that the finding of insufficiency of water is amply supported by the

evidence and (2) that under the terms of the lease this finding justified the conclusion that the

lessee was entitled to cancel the same; but (3) that the finding of insufficient irrigation water,

and the consequent conclusion that the lessee was therefore entitled to cancel, compelled the

further conclusion, under the terms and conditions of the instrument, that the lessee was not

liable in damages to the lessors by reason of the lessee's failure to install the irrigation works.

The lessors were the plaintiffs below and the lessee the defendant. Involved here are an

appeal by the defendant lessee and a cross appeal by the plaintiff lessors. The parties had

entered into an agricultural lease for a term of five years, commencing July 1, 1952, at a

rental of $5000 per year. Initial rental payment of $7500 was paid, together with a $2500

payment January 1, 1953, and a like payment July 1, 1953. On July 27, 1953 the lessee

notified the lessors of her election to terminate the lease, relying upon a provision thereof

hereinafter discussed at some length, vacated the premises and surrendered the same to the

lessors. On September 28, 1953 plaintiffs brought their action for damages predicated upon a

breach of the lease by the lessee, seeking judgment not only for the stipulated rental (less the

fair rental value for the balance of the term) but also for damages by reason of the lessee's

breach of her covenant to install certain specified irrigation works. Defendant in her answer

admitted vacating the leased premises and alleged an insufficiency of water supply for

irrigation �� ,��


and her consequent right to cancel under the terms of the lease, together with justification, by

reason of the insufficency of the water, of her failure to install the contemplated irrigation

system. After a pretrial conference the court at the commencement of the trial stated: “The

principal issue in this case is whether or not there was sufficient water to cultivate all of the

arable land which was leased by the plaintiffs to the defendant. Now, it has various

ramifications but I understand that to be the principal issue.” It becomes important for us to

consider the provisions of the lease that bear upon a determination of the controversy in the

trial court and the issues raised on this appeal.

Paragraph 3 requires the lessee to use the premises solely for agricultural and livestock

purposes and for purposes incidental thereto and to farm, cultivate, irrigate and plant the

arable portions of the property if there is sufficient water so to do. Paragraph 8 contained,

among other things, the following clause: “Within a reasonable time, except beyond the

control of the Lessee, after Lessee takes possession of the leased property, Lessee, at her sole

cost and expense, will install and place in operation an electric power line to convey public

utility electric power to the pumps on said leased real property and a twelve (12), or larger,

inch irrigation pipeline from the point of intake to the upper ditch on said leased real

property.” Paragraph 14 provided that in the event of litigation a reasonable attorney fee

should be fixed by the court in favor of the prevailing party. Section 15 included an option to

the lessee to purchase the property for $150,000.

Paragraph 17 is as follows: “It is understood and agreed between Lessors and Lessee that

this lease is predicated upon a sufficient supply of water available on or from the leased lands

of Lessors for the irrigation and growing during the full growing season of crops consisting in

whole or in part of alfalfa hay on at least 450 acres of the arable lands of said leased premises.

In the event that there is an insufficient supply of water �� 2��"�� "��"�� 4+��


from or on the leased lands of Lessors available to properly irrigate and grow the aforesaid

crops for the complete growing season in any one year on said 450 acres of arable land as

aforesaid, then Lessee shall have the right, at her election, to cancel this lease upon written

notice to Lessors, and, in this event, Lessee shall not be obligated or liable in any respect to

Lessors by reason thereof; and all advance rentals shall be pro-rated forthwith as of the date

of said written notice.”

Paragraph 18 reads, in part, as follows: “Water: In addition to the rights granted to Lessee

as hereinabove set forth, if at any time during the term of this lease the water grants or water

permits issued by the State of Nevada in respect to the leased real property or waters, water

rights, ditches, ditch rights, appurtenant to the land, are unreasonably decreased for any

reason except: (a) the failure of Lessee to beneficially use all of such water; or (b) any other

act or omission of the Lessee, Lessee, upon written notice to Lessors, may terminate this lease

forthwith, provided, however, that Lessee shall give such written notice of termination to

Lessors of the happening of any of the events hereinabove set forth. Upon any such

termination the rents hereunder shall be pro-rated on the basis that the semiannual rent

reserved hereunder is $2500, payable in advance, except as hereinabove provided. Lessors

shall be entitled to the rentals on said basis for the full unexpired portion of the term to the

date of termination; if Lessors have received rents in advance, in respect to an unexpired

portion of the term, they shall pay Lessee the pro-rated portion of any rents paid in advance

attributable to the unexpired portions of the term.”

Paragraph 23 reads as follows: “Lessors agree to take whatever steps are necessary and

proper to perfect their rights to all the waters to which they are entitled, either under the

pending applications filed in the Office of the State Engineer of the State of Nevada, or

otherwise.”

Pursuant to the finding of insufficient water the court made the following conclusion: “On

July 27, 1953 ��


defendant was entitled to cancel said lease, that defendant, on said date, did cancel said lease

and therefore was entitled to vacate said premises and to be exonerated and discharged from

all future performance of any obligation imposed by said lease.” The court made the further

finding: “On July 27, 1953 defendant rightfully canceled said lease in accordance with the

terms of said lease.”

Plaintiffs (lessors) possessed three established water rights appurtenant to the lands

involved. Of these we need consider but one. Without it there was a clear insufficiency. This

was a right to “divert” and use five cubic feet per second (5 c.f.s.) or 1,787.82 acre-feet of

underground water with a priority of 1947 granted by certificate of the state engineer. The

source of this underground water was a drain ditch varying from four to six feet in depth

which served to drain an airfield near the lessors' lands and which emptied into Steamboat

Creek, a tributary of the Truckee River. Lessors were given a right to pump their underground

water from a point (referred to as a “rediversion”) in Steamboat Creek, but the point of

diversion specified in their certificate was located in the drain ditch.

[Headnote 1]

Defendant's case was based upon testimony of qualified experts to the effect that there was

not sufficient underground water in the drain ditch to provide more than .085 c.f.s. under

lessors' water right. This testimony was based upon measurements made at or near the

specified point of diversion. In no respect was it rebutted. Unless it was rejected by the trial

court, no other finding could have been made than that the underground water available was

insufficient.

Lessors first contend, as a matter of law, that the appropriate question of fact was not

whether there was sufficient underground water in the drain ditch to meet their water right,

but whether there was sufficient water in Steamboat Creek at the pumping point. They

contend that their water right gave them the right to pump that ��


amount of water at that point. They contend that, for a court to entertain evidence such as was

received below is to permit an improper attack upon their water right and upon the

determinations of the state engineer upon which it was based.

We must reject these contentions. The state engineer's original preliminary approval of

lessors' application provided: “This permit is issued subject to all existing rights on the source

and with the understanding that the permit will be limited to the water available at the point

of diversion * * *. (Emphasis supplied.) This language was reiterated by the state engineer in

his final ruling on a protest of the application by one Lester C. Jones and others.

[Headnote 2]

Defendant's evidence was no attack upon lessors' water right. The evidence served simply

to establish factually the extent of the limitations which the certificate recognized to exist.

Lessors attack the testimony of defendant's witnesses upon another ground. Those

witnesses testified that water in the drain ditch did not all come from an underground source;

that the greater portion of the water in that ditch (all but .085 c.f.s.) came from surface

drainage. This surface drainage forms a part of the waters of the Truckee River and its

tributaries, all of which were subject to prior appropriations as adjudicated by what is known

as the Truckee River Decree, administered through a watermaster. Lessors contend that this

constituted an attack upon their water right in that the testimony in this regard was not factual

but was based upon the witnesses' conclusions, contrary to those of the state engineer, that the

drain ditch was not a proper source of underground water nor a proper method of tapping an

underground water source. From a study of the record we would not so view the testimony.

The nature of the measurements made by the witnesses, as �� "�


we understand their testimony, was to check the sources of surface flow into the ditch,

measure that flow, and deduct it from the total flow. If there be any dispute as to the propriety

of the drain ditch as a source or means for the tapping of underground water, we do not reach

that question in this matter.

[Headnote 3]

We conclude that it was proper for the court below to receive evidence as to the extent of

underground water applicable to lessors' water right at the point of diversion; that such

evidence clearly supported the court's finding that there was an insufficiency of water; and

that the court's conclusion as to the lessee's right to cancel naturally and properly followed.

We are therefore next confronted with the question as to whether, in view of the findings

and conclusions just discussed, the court's finding that defendant wrongfully failed to install

or place in operation the electric power line or the irrigation pipeline from the point of intake

of the pumps to the upper ditch, or the finding of the reasonable cost thereof in the sum of

$34,828.22, or the conclusion that plaintiffs were entitled to judgment for damages in such

sum (subject to a refund to defendant of $7133 advance rentals) may be supported.

[Headnote 4]

In the first place, the insufficiency of available water being found as a fact, and the

defendant's right to cancel the lease having been properly concluded by the court as a result of

such finding, under the terms of the lease itself it would further logically appear that the

clause relieving the defendant of liability in any respect, in such event, would seem to

preclude a recovery by the plaintiffs of damages resulting either from defendant's failure to

pay further rentals during the term of the lease or from her failure to install and place in

operation the contemplated irrigation works. Defendant pointed out in her opening brief on

appeal that the only possible ��


basis of awarding of damages for failure to install the irrigation works (in view of the prior

finding of insufficient water and the conclusion justifying cancellation) would be in the

conclusion that the covenant to install the irrigation works was an independent covenant.

Plaintiffs' only response to this contention was that they were entitled to be placed in as good

a position as they would have been in had the defendant complied with the requirements of

this covenant; in other words, that they would have had their 450 cultivable and irrigable

acres with pumps, power line and pipeline installed ready for the irrigation thereof, and that

such was their right under the terms of the lease. Without water available for use in such

proposed irrigation system, upon which availability the lease was predicated, such conclusion

is neither logical nor realistic. It is significant that the lessee's covenant under section 8 of the

lease was not only to install the power line and pipeline but also to place it in operation. It is

neither logical nor realistic to conclude that the failure to install and operate the contemplated

irrigation system was such an independent covenant of the lease as to entitle lessors to

damages for the failure of construction when it is found in the same breath that the water was

not there to be pumped, with power that could not be used, through a pipeline that would

remain dry, into a ditch that would carry no water.

The judgment in favor of the lessors, plaintiffs below and cross appellants herein, for

damages for failure to install the irrigation works and for damages for future rentals during

the term of the lease must therefore be reversed. This being so, the assignment made in the

cross appeal of the lessors that it was error for the court to credit the advance rentals against

the judgment for damages becomes moot and need not be considered.

The lease, as noted, provided for the allowance of an attorney fee to the prevailing party in

the event of litigation over the lease. The plaintiffs alleged in their ��/+�� "�� "��


complaint that $5000 was a reasonable attorney fee and they sought, among other things, a

judgment for this sum. At pretrial conference it was agreed that a reasonable attorney fee to

be assessed in favor of the prevailing party was $2500 and the court awarded the plaintiffs

judgment in this sum on this item, in addition to the plaintiffs' costs. This likewise must be

reversed.

[Headnote 5]

It is therefore ordered: (1) that the judgment that defendant was entitled to cancel the lease

by reason of insufficiency of water to irrigate 450 acres is affirmed; (2) that the judgment

awarding damages to the plaintiff lessors is reversed; (3) that the judgment awarding $2500

attorney fees and costs to the plaintiffs, cross appellants herein, is reversed; (4) that the cause

is hereby remanded to the district court with directions to enter judgment in favor of

defendant, together with her costs and $2500 attorney fee; (5) that appellant, defendant

below, recover her costs in this court.


____________

��72 Nev. 135, 135 (1956) Ripps v. City of Las Vegas��

ALFRED RIPPS, and MARIE DOROTHY RIPPS, Appellants, v. CITY OF LAS VEGAS, a

Municipal Corporation, Et Al, Respondents.

ALFRED RIPPS, Appellant, v. CITY OF LAS VEGAS, a Municipal Corporation, Et Al.,

Respondents.

No. 3925

May 18, 1956 297 P.2d 258

Appeals from orders of the Eighth Judicial District Court, Clark County; Frank McNamee,

Judge, Department No. 1, denying injunctions pendente lite.

Actions by lessees against city to enjoin demolition of buildings. The trial court denied

lessees' motions for ��%��


injunctions pendente lite and lessees appealed. The Supreme Court, Merrill, C. J., held that

where many defective features of building combined to influence city in issuing demolition

order but defective parapet wall which threatened to fall to street below was only defect

which was regarded as an immediate hazard to public and the wall had been removed

pursuant to condition of Supreme Court's temporary restraining order against demolition

pending appeal by lessees from order denying injunction pendente lite, in view of changed

conditions, a further hearing was necessary on question of immediate hazard.

Remanded for further hearing.

Rudiak, Horsey & Lionel and Morris Pepper, of Las Vegas, for Appellants.

Howard W. Cannon, City Attorney, and Ralston O. Hawkins, Assistant City Attorney, of

Las Vegas, for City of Las Vegas.

George E. Marshall, of Las Vegas, as Amicus Curiae.

1. Injunction. In action by lessees against city to enjoin demolition of premises, adequacy of remedy at law in damages

was not so clear as to justify denial of injunction pendente lite.

2. Injunction. In actions by lessees against city to enjoin demolition of premises, where denial of motions for

injunctions pendente lite would permit city to demolish buildings before trial on merits, improbability of

ultimate recovery by plaintiffs was not sufficient ground alone on which to base denial of motions.

3. Injunctions. In actions by lessee against city to enjoin demolition of premises, that city had issued a second demolition

order since commencement of action and plaintiffs sought injunction against second order, did not justify

denial of injunction pendente lite.

4. Injunction. If immediate demolition of premise is necessary in interests of public safety, interests of lessees of

premises must give way before paramount public interest and courts should not interfere through issuance

of injunction or injunction pendente lite.


5. Municipal Corporations. Caution should be exercised by court in interfering with administrative action of city in ordering

demolition of building as unsafe.

6. Appeal and Error. Where many defective features of building combined to influence city in issuing demolition order but

defective parapet wall which threatened to fall to street below was only defect which was regarded as an

immediate hazard to public and the wall had been removed pursuant to condition of Supreme Court's

temporary restraining order against demolition pending appeal by lessees from order denying injunction

pendente lite in suit to enjoin demolition, in view of changed conditions, a further hearing was necessary on

question of immediate hazard and case would be remanded to trial court.

7. Appeal and Error. If demolition of privately owned building by city is to be restrained, it should be by act of trial court

which is by its nature more responsive to those changes in conditions which may well occur from day to

day.

OPINION


These are appeals from orders of the trial court denying injunctions pendente lite. The suits

are brought by appellants as lessees of a store building in Las Vegas to enjoin the city of Las

Vegas from demolition of the premises and from cancellation of licenses to engage in

business upon the premises. Denial of temporary injunction thus permits the city to proceed

to demolition before trial upon the merits. Appellants contend that the action of the trial court

constitutes abuse of judicial discretion since, in effect, it amounts to destruction of the subject

matter of their suits.

In two connected cases we have already dealt with one aspect of the lessees' problems

(Ripps v. Kline, 70 Nev. 510, 275 P.2d 381; Goldring v. Kline, 71 Nev. 181, 284 P.2d 374).

These were cases brought by the lessees, (and lessees of adjoining property), against their

lessor to compel the lessor to repair the premises and thus avoid the necessity for demolition.

The landlord desires to submit to demolition, be rid of appellants' lease, and ��


put the premises to other purposes. In the cited cases we held that the lessor under the lease

and in the light of the city's demolition order could not be compelled to repair. Remaining

undetermined by those cases, however, was the question of the propriety of the city's order. In

Goldring v. Kline we stated, “Lessees contend that, considering the repairability of the

building, the city should not have ordered demolition. If the city's safety order was for any

reason improper, it can hardly be challenged in an action to which the city is not a party. In

this matter we must accept the demolition order as it appears upon its face: a considered and

proper determination that in the interests of public safety and in the light of the condition of

the premises, the least the city could demand of the owner was demolition.” Further we

stated, “This, of course, is not to say that rights other than those of the owner may be

disregarded by municipal authorities; that their safety orders may ignore reason and practical

necessity so long as the owner consents; or that their orders may be based not upon their

judgment as to what is necessary to public safety but upon private agreement with interested

parties; all in disregard of the rights of others. As we have already noted, however, if the city's

action for any reason was improper it may not be challenged in this case.”

By the present suits the lessees directly challenge the propriety of the city's order. Should

they prevail below and successfully establish that, considering the condition of the premises

and the needs of the city in the interests of public safety, demolition was an unreasonable

requirement, the obligation of the lessor to repair may well be affected. Should the order of

the trial court be permitted to stand, all rights to demand repair of the lessor may well be lost

regardless of the outcome of the suits following trial upon the merits.

[Headnote 1]

Respondents have supported the action of the trial court upon many grounds. It is first

contended that the �� ,�� "��


lessees have an adequate remedy at law in damages. If money damages are to result from the

present suits it would appear that they must be levied against the city. It is perhaps worthy of

comment that this contention is made not by the city but by counsel for the landlord who

appears in this matter as amicus curiae upon our order. The complete adequacy of this remedy

can hardly be said to be clear without first disposing of questions of law not yet presented for

our determination.

[Headnote 2]

Respondents also contend that it is so clear upon the facts that appellants cannot prevail

upon the merits that the trial court properly refused a preliminary injunction. While in a

proper case the probability of ultimate recovery by the plaintiff is a relevant consideration

upon motion for temporary injunction, in this case to base a denial upon this ground alone

would be tantamount to a determination of important factual issues by summary judgment.

[Headnote 3]

Respondents also contend that since commencement of the suits below the city has issued

a second demolition order; that the injunction sought below is against this second order and,

therefore, cannot be supported by the original complaints. We see no reason why any

procedural problem posed by these facts cannot very simply be disposed of under N.R.C.P.

Such technicalities can hardly weigh against the drastic effect of the denial of an injunction.

[Headnote 4]

But one contention of respondents has given us serious concern. It is contended that the

record demonstrates that immediate demolition of the premises is necessary in the interests of

public safety. If such be the fact the courts of this state should not interfere through issuance

of an order restraining demolition. The interests of appellants must give way before the

paramount public interest.


In support of its contention respondents point to the administrative determination of the

city as set forth in its demolition order. The building was expressly found to be an unsafe

building. It was ordered that demolition commence within 48 hours. Respondents also point

to the determination of the trial court following hearing upon appellants' motion for

temporary injunction. The court expressly found that the building “is an immediate hazard to

the public.”

[Headnote 5]

Respondents contend that these determinations should be conclusive upon this appeal.

Much authority has been cited to us to the general effect that courts will assume that

municipal authorities have full knowledge of local conditions and that their determinations as

to the needs of public safety will, upon their face, be regarded as valid; that courts are ever

reluctant to interfere with such determinations and should in such cases exercise great

caution. We agree with these general principles. We recognize that our knowledge of local

conditions necessarily is confined to the matters set forth in the record before us; that caution

should be exercised in any interference with administrative action of this sort, particularly so

where that action has the support of judicial determination by the trial court.

From the record, however, one fact appears clear: While many defective features of the

building combine to influence the city in taking its action, there was but one defect which was

regarded as an immediate hazard to the public. This was a defective parapet wall which

threatened to fall to the street below. In its demolition order this defect was specified as

follows: “That the front parapet wall is structurally unsafe and unstable and in danger of

falling and constitutes an immediate hazard to persons using the public thoroughfare and to

persons entering said building.” No other specified defect was indicated to be an imminent or

immediate hazard.

Upon the hearing before the trial court the city's only witness was its supervisor of

building and safety.


In part his testimony was as follows: “Q. In your investigation and examination of the

building, was there any other immediate hazard that you determined in your opinion was

present there at that time, other than the wall, the front wall? A. Immediate hazard? Q. Yes.

A. Well, primarily the immediate hazard to the building is that front wall.” Further, on cross

examination, he testified: “Q. If the front parapet and also the front portion of the wall

enclosures, the attic space, were repaired, would that render the front portion of the building

safe? A. If it were repaired? Q. Yes. A. You mean by removal or rebuilding? Q. Either by

removal and rebuilding, or by reinforcement of the existing parapet and wall. Would that

render the front portion of the building safe to the public? A. If it was done in a safe manner,

and approved, yes. I guess so.”

When this appeal was first taken this court entered its temporary restraining order against

demolition pending the appeal, which order remains in effect. Pursuant to a condition of that

order, the parapet wall has now been removed.

While justification for the demolition order remains for determination upon the merits, it

would now appear that the only defect which, at the time of the hearing below, appeared to

the city to be an immediate hazard to the public, has been eliminated. Nothing remains in the

record before us which would appear to justify demolition prior to trial upon the merits upon

the basis of essential public safety. While both the demolition order and the testimony of the

city official emphasized the existence of a fire hazard (which carries with it its own inherent

element of immediacy), it does not appear from the record that the danger in this respect

could not reasonably be eliminated or substantially lessened without the necessity for resort to

immediate demolition.

[Headnotes 6, 7]

In view of these changed conditions, we believe that a further hearing should be had upon

the question of immediate hazard. In the public interest, if demolition is to be restrained, it

should, we feel, be by act of the �� "�� "� �� "�� "��


trial court which is by its nature more responsive to those changes in conditions which may

well occur from day to day in cases of this sort.

It is ordered that the matter be remanded to the court below for further hearing upon

appellants' motion for injunction pendente lite, and with instructions that, upon posting of

bond in a sum to be fixed by the trial court, a temporary restraining order issue against

demolition until such hearing can be had. The restraining order issued by this court shall

remain in effect until notice by appellants that the restraining order of the trial court has

issued. Costs to appellants.


____________

��72 Nev. 142, 142 (1956) Moran v. District Court��

THOMAS L. MORAN, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF

THE STATE OF NEVADA, In and For the County of Washoe, and THE HONORABLE

GORDON W. RICE, Judge Thereof, and HARRY K. BROWN, Clerk Thereof, Respondents.

No. 3948

May 22, 1956. 297 P.2d 261.

Original prohibition proceeding was brought in the Supreme Court against the Second

judicial district court of the State of Nevada, in and for the county of Washoe, and the judge

and the clerk thereof to restrain them from proceeding further with a suit for separate

maintenance. The Supreme Court held that where wife brought suit in Nevada against

husband, who was a resident of Texas, for separate maintenance and custody of minor

children, and under court order for publication of summons or personal service outside the

state, service was made on husband by delivering process at his home in Texas to his

housekeeper, he being absent from his ��


home at the time, no valid service was had on the husband.

Writ granted.

Rehearing denied June 20, 1956.

Vargas, Dillon & Bartlett, of Reno, for Petitioner.

Summerfield & Heward, of Reno, for Respondents.

1. Process. Where service is made within a state, it may be by personal or substituted service as specified in Rules of

Civil Procedure, but when made outside the state, in lieu of publication, it must be by personal service.

Rules of Civil Procedure, Rule 4(d)(6), (e)(1)(iii), (e)(2).

2. Husband and Wife. Where wife brought suit in Nevada against husband, who was a resident of Texas, for separate

maintenance and custody of minor children, and, under court order for publication of summons or personal

service outside the state, service was made on husband by delivering process at his home in Texas to his

housekeeper, he being absent from his home at the time, no valid service was had on the husband. Rules of

Civil Procedure, Rule 4(d)(6), (e)(1)(iii), (e)(2).

OPINION

Per Curiam:

This is an application for writ of prohibition to restrain respondent court and judge from

proceeding further with a case now pending before it, in which case petitioner is named as

defendant. The sole question raised is whether under N.R.C.P. the petitioner has effectively

been served with process in the case below. In that case petitioner appeared specially to move

to quash service of process. The motion was denied and this proceeding was then brought,

petitioner contending that service had not been made and that respondent court is without

jurisdiction to proceed with the case.

The suit below was brought against petitioner by his wife. She seeks separate maintenance

and custody of ��


the minor children of the parties. Petitioner is a resident of Texas. Under court order for

publication of summons or personal service outside of the state, service was made upon

petitioner by delivering the process at his home in Texas to his housekeeper, he being absent

from his home at the time.

Respondents support this service as effective under the provisions of Rule 4(d)(6)

N.R.C.P. The preceding subparagraphs of Rule 4(d) provide for service of process within the

state upon corporations, incompetents and political subdivisions. Subparagraph (6) reads, “In

all other cases to the defendant personally, or by leaving copies thereof at his dwelling house

or usual place of abode with some person of suitable age and discretion then residing therein,

or by delivering a copy of the summons and complaint to an agent authorized by appointment

or by law to receive service of process.”

Petitioner contends that this subparagraph cannot be construed to apply to service outside

of the state. Rule 4(e) deals with other methods of making service. Subparagraph (1) of that

rule provides for service by publication and reads in part, [4(e)(1)(iii)], “When publication is

ordered, personal service of a copy of the summons and complaint, out of the state, shall be

equivalent to completed service by publication and deposit in the post office, * * *.”

Subparagraph 4(e)(2) provides for the making of personal service outside of the state. In

part it reads, “Such service shall be made by delivering a copy of the process together with a

copy of the complaint in person to the person served.”

[Headnote 1]

Read in context with the preceding subparagraphs, Rule 4(d)(6) might reasonably be

construed to apply only to service within the state. That this is the proper construction is

made abundantly clear by the fact that the subject of personal service outside the state has

expressly been dealt with in Rule 4(e)(2). The rules �� "��"��


thus provide that where service is made within the state it may be by personal or substituted

service as specified. When made outside the state, in lieu of publication, it must be by

personal service. Substituted service at the defendant's residence is not sufficient since it is

not provided for. Where such separate provisions exist relating to service within and without

the state, substituted service outside of the state is ineffective. Thomas v. Thomas, 96 Me.

223, 52 Atl. 642, 90 Am.St.Rep. 342.

[Headnote 2]

In the case below, then, service was not had upon the petitioner, and the trial court is

without jurisdiction to proceed.

It Is Ordered that a peremptory writ of prohibition issue as prayed. No costs are allowed.

____________

��72 Nev. 145, 145 (1956) Sobrio v. Cafferata��

ALEX SOBRIO, Appellant, v. M.C. CAFFERATA, and W.H. PEARSON, Respondents.

No. 3915

May 24, 1956. 297 P.2d 828.

Appeal from the Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,

Department No. 3.

Action for injuries sustained by plaintiff while attempting to deliver fuel oil from a tank

truck to respondents' building based upon a city ordinance. Verdict for plaintiff in the lower

court and respondents' motion for judgment non obstante veredicto was granted and the

plaintiff appealed. The Supreme Court, Eather, J., held that plaintiff was not entitled to

recover where it appeared that the respondents might have fully complied with the ordinance

and yet the injury to the plaintiff could have occurred.

Affirmed.


Ernest S. Brown, and Wm. L. Hammersmith, of Reno, for Appellant.

Vargas, Dillon, Bartlett & Garroway, of Reno, for Respondents.

1. Judgment. Where respondents moved for a directed verdict in their favor at the close of plaintiff's evidence and

respondents offered no evidence and immediately rested and no second formal motion was made by them

for a directed verdict but they submitted an instruction to that effect, respondents did not waive their rights

to move for judgment n. o. v. by failing to make a motion for a directed verdict at the close of the case.

Rules of Civil Procedure. Rule 50(a, b).

2. Trial. Questions involving the existence and interpretation, construction or meaning and effect of the statute are

usually questions for the court.

3. Negligence. In action for injuries sustained while plaintiff was attempting to deliver fuel oil from a tank truck to

respondents' building on ground that respondents did not provide a guardrail in compliance with an

ordinance, plaintiff was not entitled to recover where the respondents might fully have complied with the

ordinance and the accident would still have occurred in that it appeared that the ordinance was intended

only for the protection of pedestrians on the sidewalk.

OPINION


The essential facts which evoked this litigation may be summarized briefly in the

following manner. Appellant, who was plaintiff in the trial court, received an injury while he

was attempting to deliver fuel oil from a tank truck to a building in the city of Reno, Nevada,

owned by respondents. His complaint alleged two causes of action, the first under the

common law and the second under a city ordinance which be believes is applicable. At the

trial, he abandoned the common law claim and insisted that defendants were liable because

they admittedly did not provide a guardrail in compliance with ��


the ordinance. The case was submitted to jury, which rendered a verdict in favor of plaintiff

against these respondents. A motion by respondents for judgment non obstante veredicto was

granted and plaintiff appealed.

[Headnote 1]

The first question raised and argued relates to the right of the trial court to enter judgment

n.o.v. At the close of plaintiff's evidence, respondents moved for a directed verdict in their

favor, which motion was denied. Respondents offered no evidence and immediately rested.

No second formal motion was made by them for a directed verdict but they submitted an

instruction to that effect, which the trial judge refused to give to the jury. Appellant contends

that respondents did not comply with Rule 50(a) of the Nevada Rules of Civil Procedure and

that they waived their right to ask for judgment n.o.v. by failing to make a motion for a

directed verdict “at the close of the case.”

Rule 50(a) provides that a motion for a directed verdict may be made at the close of the

evidence offered by an opponent or at the close of the case. Rule 50(b) is, in part, as follows:

“Whenever a motion for a directed verdict made at the close of all the evidence is denied or

for any reason is not granted, the court is deemed to have submitted the action to the jury

subject to a later determination of the legal questions raised by the motion. * * * If a verdict

was returned the court may allow the judgment to stand or may reopen the judgment and

either order a new trial or direct the entry of judgment as if the requested verdict had been

directed.”

The motion by respondents at the close of plaintiff's evidence satisfied the rule at that

point in the trial and, because they did not offer any evidence in defense, it may be considered

as a motion presented “at the close of [the case].” Also, under the circumstances presented

here, we think the proposed instruction offered by respondents for a verdict in their favor is

the equivalent of a formal motion to that effect.


Plaintiff abandoned his asserted cause of action based upon alleged common law

negligence and relied entirely upon the failure by respondents to provide a guardrail as called

for in an ordinance of the city of Reno. Therefore, we have no concern with elements

involved in a common law negligence action, but we are confined to the ordinance, which is

as follows: “It shall be unlawful for any person owning, controlling or having the possession

of, any cellarway, opening or entrance to any cellarway, basement or other excavation

beneath the sidewalk along any street or alley, to cause or permit the said cellarway, opening

or entrance to be opened, or remain open, except during the time said cellarway, opening or

entrance is actually in use, or to cause or permit the said cellarway, opening or entrance to

remain open without a proper guardrail around the same, said guardrail to be constructed of

iron, not less than three and a half feet from the ground level, and enclosed beneath said

guardrail and the ground level with iron mesh screen.”

The fuel oil delivered by appellant was to be passed through a hose from the tank truck to

a container in the basement of respondent's building. Entrance for that purpose was through a

large opening in the sidewalk in front of the building on Center Street, that being a public

thoroughfare located in the heart of the city which bears much vehicular and pedestrian

traffic. The opening was normally closed by two steel doors, each about two feet wide and

five or six feet long, which were flush with the sidewalk when closed, fastened to hinges at

the outer sides and opened upward from the center so that when in position to permit access

to the basement they were upright from the sidewalk. They were operated by hand. It was a

cellar opening and basement entrance which is common in cities.

Appellant opened the steel doors and braced them with a chain provided for that purpose

so that the doors could not fall outward onto the sidewalk. His testimony is that the doors

were “out and beyond the opening of �� $� ��


the sidewalk level” when he had finished placing them in position. He then took the nozzle

end of the hose and started to descend the steps in the opening leading from the sidewalk to

the basement. When he was only part way down the steps, the south door fell inward upon

him and struck the top of his head. Appellant had delivered oil to those premises and had

opened the basement doors and used those steps, as he testified “countless times before.” The

record does not give any indication of what caused the door to fall inward; apparently nobody

knows the cause. Appellant testified that his hose did not come in contact with the door and

there is no evidence that any pedestrian or object on the sidewalk touched the door.

A careful reading of the ordinance makes it plain that respondents might have fully

complied with the ordinance and yet this unfortunate accident could have occurred. Appellant

argues that the guardrail and screen could have been placed vertically above the sides of the

opening after the doors had been raised, the guardrail thus being between the upright doors

and preventing the doors from falling inward while the guardrail was in place. But the

ordinance does not require the guardrail to be so placed. A guardrail and mesh fully

complying with the ordinance could have been erected outside and around both the opening

and the raised doors, that would not have prevented a door falling inward toward a closed

position and striking a person on the steps. A guardrail so placed would have been a

protection for a pedestrian on the sidewalk, which we deem a strong indication that the

ordinance was intended only for such protection.

It is significant that the ordinance required the guardrail to be not less than three and a half

feet from the ground level—in the present case one and a half feet higher than the open

two-foot cellar doors. Significant, too, is the absence from the ordinance of even the simplest

language requiring a safety device to keep the doors from falling.


[Headnotes 2, 3]

Whether or not the ordinance was applicable to the situation presented by appellant was a

question to be determined by the court. “Usually, questions involving the existence * * *

interpretation, construction or meaning and effect of a statute * * * are questions for the

court.” 53 Am.Jur., page 216. The trial judge would have been correct in granting

respondents' motion for a directed verdict. In setting aside the verdict for appellant and

entering judgment for respondents, he committed no error. Appellant simply did not present

the necessary foundation to support a claim upon which relief could be granted.

Appellant's assignments of error attack Rule 50 as unconstitutional and beyond the

rule-making power of this court. We have considered those points and find no merit in either

one.

The judgment is affirmed, with costs to respondent.


____________

��72 Nev. 150, 150 (1956) Zolezzi v. Jackson��

JACK ZOLEZZI, Also Known as GIACOMO ZOLEZZI, and ELAINE ZOLEZZI, His Wife,

Appellants, v. JOHN E. JACKSON and DOROTHY E. JACKSON, His Wife, Respondents.

No. 3838

May 31, 1956. 297 P.2d 1081.

Appeal from the Second Judicial District Court, Washoe County; Harold O. Taber, Judge,

Department No. 3.

Action to adjudicate water rights to property purchased by plaintiffs from defendants and

to enjoin defendants from interference therewith, wherein defendants contended that no water

rights passed with conveyance, and further that if deed did pass water rights it did so

inadvertently and contrary to intent of ��


parties and should be reformed. The trial court granted plaintiffs' request as to the water rights

and enjoined defendants from interference therewith and defendants appealed. The Supreme

Court, Merrill, C. J., held that under the deed in question water appurtenant to land passed as

appurtenance and plaintiffs acquired legal title thereto and that there was no mutual mistake

in deed, as purchasers, at time of purchase, believed that water passed with land.

Judgment affirmed.

John Shaw Field and Morgan Anglim, of Reno, for Appellants.

John S. Belford, of Reno, for Respondents.

1. Waters and Water Courses. Under water law in arid western states and including Nevada, the water right itself, relating as it does to

land upon which it is applied, although in a sense incorporeal, nevertheless, by reason of its application

becomes an integral part of the freehold as the water and the land to which it is applied become so

interrelated and dependent on each other in order to constitute a valid appropriation that the former

becomes by reason of necessity appurtenant to the latter. St.1889, c. 113, secs. 1 et seq., 31; St.1903, c. 4,

sec. 1.

2. Waters and Water Courses. Where defendants conveyed land on which they acquired water rights by use prior to enactment of state's

water laws recognizing doctrine of appurtenance, and defendants' deed to plaintiffs conveyed the property

involved “together with all and singular tenements, hereditaments and appurtenances thereunto belonging

or in any wise appertaining,” under such deed water appurtenant to land in question passed as an

appurtenance and plaintiffs acquired legal title thereto. St. 1889, c. 113, secs. 1 et seq., 31; St.1903, c. 4,

sec. 1.

3. Reformation of Instruments. In action by plaintiffs, who purchased land from defendants, for determination as to plaintiffs' water

rights on such land, wherein defendants alleged that it was mutually understood that no water rights were to

pass with land conveyed and that defendants had equitable title and right to reformation of deed to exclude

water rights expressly from grant, record disclosed that plaintiffs believed water passed with land at time

contract was executed for purchase of land and thus was sufficient to show deed was not subject to

reformation. St.1889, c. 113, secs. 1 et seq., 31; St.1903, c. 4, sec. 1.


4. Waters and Water Courses. Fact that purchasers of land accepted vendors' deed and paid purchase money after they had been notified

by vendors that no water passed with the land, was without equitable significance in subsequent action to

adjudicate water rights as to property purchased, in absence of waiver of estoppel of the purchasers.

OPINION


This is an appeal taken by the defendants below from a decree adjudicating water rights to

plaintiffs' property situated in Washoe County and enjoining defendants from interference

therewith. Plaintiffs purchased their property from defendants who have retained ownership

of adjoining premises. Defendants contend that no water rights passed with the conveyance.

Further, they contend that if their deed did pass water rights, it did so inadvertently and

contrary to the intent of the parties and should be reformed. Upon this appeal defendants

contend that the evidence does not support the findings and judgment of the trial court which

sat in this matter without jury.

The deed from defendants to plaintiffs conveyed the land involved, “together with all and

singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise

appertaining * * *.” No water rights were expressly granted or expressly excluded. The trial

court concluded and adjudged that 3.188 inches of water were appurtenant to the land and

passed under the quoted language in the deed.

Defendants' first contention is that as a matter of law no water was appurtenant to the land.

Defendants' water right was acquired by use prior to the enactment of the state's water

laws. It has been adjudged by court decree to have a use priority of January 14, 1878. The

first water legislation in this state was enacted in 1889, (An Act to regulate the use of water

for irrigation and for other purposes; for settling ��"��<��


the priority of rights thereto; etc. 1889 Stats. of Nev., Ch. 113, p. 107). The act expressly

provided (sec. 31) “This act shall, in no wise, be construed as impairing or abridging any

rights already vested * * * by virtue of the law heretofore in force.”

The first legislative recognition of the doctrine of appurtenance was given in 1903: “All

natural water courses and natural lakes and the waters thereof which are not held in private

ownership, belong to the public and are subject to appropriation for a beneficial use, and the

right to the use of water so appropriated for irrigation shall be appurtenant to the land

irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” 1903

Stats. Nev., Ch. 4, p. 24, sec. 1.

Defendants contend that this provision operates prospectively and does not affect the

status of water rights theretofore acquired. They contend, in effect, that since there was no

legislative expression of the doctrine of appurtenance until 1903, water used under rights

acquired prior to 1903 is not appurtenant to the land upon which it is used. This does not

follow, however. Valid rights to the use of water were acquired prior to any legislation upon

the subject. The act of 1889 as quoted expressly recognized that water rights already may

have been acquired “by virtue of the law heretofore in force.” The question is whether, under

the law theretofore in force, water was appurtenant to the land upon which it was used.

[Headnote 1]

Upon this question the law of this state is settled beyond dispute. In Prosole v. Steamboat

Canal Co., 37 Nev. 154, 164, 140 P. 720, 723, this court stated, “[T]he very right itself,

relating as it does to the land upon which it is applied, although in a sense incorporeal,

nevertheless, by reason of its application, becomes an integral part of the freehold. The water

and the land to which it is applied become so interrelated and dependent on each other in

order to constitute a valid appropriation that the former becomes, by reason of necessity,

��$


appurtenant to the latter.” [Emphasis supplied.] Such would appear to be the universally

recognized law of waters in the arid western states. Frank v. Hicks, 4 Wyo. 502, 35 P. 475;

Thompson v. Short, 6 Wash. 2d 71, 106 P.2d 720; see 2 Kinney on Irrigation 1804. It took no

legislation to establish the doctrine of appurtenance in arid Nevada. By virtue of the nature of

the rights involved, such has been the established law of this state since waters first were

rightfully appropriated to beneficial use.

[Headnote 2]

The trial court, then, was correct in its conclusion that water appurtenant to the land in

question passed as an appurtenance under the deed. Plaintiffs by deed acquired legal title

thereto.

[Headnote 3]

Defendants assert an equitable title and right to reformation of the deed to exclude water

rights expressly from the grant. This right they base upon alleged mutual mistake. They

contend that from the outset all parties understood that no water rights were to pass with the

land. They contend that the record conclusively establishes this understanding and that no

contrary finding was available to the trial court.

It must be conceded that defendants have made out a convincing case as to their own

intent. Further, (subject to substantial dispute by plaintiffs), they have presented evidence

which, if believed, would tend to show that they had successfully persuaded plaintiffs that no

water rights had passed under their deed and that plaintiffs' only rights were to such waste

water as defendants chose to let them have. Defendants contend that substantially all water

received by plaintiffs while on the land was of such a character.

This does not reach the issue of mutual mistake, however. The evidence is clear that the

land was sold to plaintiffs under a contract negotiated and executed for defendants by an

authorized agent. That agent testified �� <


that he understood that water was to go with the land; that he represented to plaintiffs that the

land had an ample supply of water. When the contract was executed the land was under

irrigation and, to some extent, under cultivation. It was then enjoying water. Both plaintiffs

testified that they believed that water passed with the land and would not have contracted to

buy had they believed otherwise. It is their intent at the time of contract which is material, not

some subsequent belief to which they may reluctantly and erroneously have been persuaded.

The deed, then, whether mistakenly or not from defendants' point of view, actually conveyed

to plaintiffs what they had contracted to receive and, at the time of contract, understood they

would receive. It is not subject to reformation.

[Headnote 4]

Defendants emphasize that purchase money was paid by plaintiffs and their deed accepted

by them after they had been notified by defendants that no water passed with the land. In the

absence of waiver or estoppel, neither of which appears, these facts are without equitable

significance.

Affirmed.


____________

��72 Nev. 156, 156 (1956) Ringelberg v. United Association of Journeymen��

JAMES D. RINGELBERG; and WILLIAM K. STINE, dba A-1 Plumbing Supply Company,

Appellants, v. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF

THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND

CANADA, Local Union 525, Las Vegas, Nevada; FRANK E. LONG, Individually; FRANK

E. LONG, as Business Agent of Local Union 525; JOHN CARTER, as Assistant Business

Agent of Local Union 525; JOHN CARTER, Individually; B. C. CANNON, as President of

Local Union 525; and B. C. CANNON, Individually, Respondents.

No. 3945

June 8, 1956. 297 P.2d 1079.


Department No. 1.

On motion for injunction pending appeal.

Suit to enjoin labor union from calling a strike. The trial court denied injunction pendente

lite, and plaintiffs appealed, and moved for injunction pending appeal. The Supreme Court

held that record on appeal did not disclose that employer or accused person would be

irreparably injured by denial of injunction pending appeal.

Motion denied.

Morton Galane, of Las Vegas, for Appellants.

Rudiak, Horsey & Lionel, and Betty Altman Aronow, of Las Vegas, for Respondents.

1. Labor Relations. It is not necessary to show irreparable injury in order to entitle a person to injunctive relief against

violations of statute prohibiting denial of employment because of nonmembership in a labor organization.

St.1953, c. 1, secs. 1 et seq., 7.

2. Appeal and Error. A party appealing from denial of a labor case injunction may obtain an injunction pending appeal upon a

prima facie showing of abuse of discretion on part of trial judge, without a showing of irreparable injury.

St.1953, c. 1, secs. 1 et seq., 7.


3. Appeal and Error. On appeal from denial of labor case injunction, reviewing court could not prejudge merits of controversy

so as to review trial court's conclusions that probabilities were against the granting of final relief, and

reviewing court, in face of such finding, could not find abuse of discretion on part of trial court. St.1953, c.

1, secs. 1 et seq., 7.

4. Appeal and Error. Record on appeal from denial of injunction to restrain labor union from calling a strike on account of the

employment of a certain person did not disclose that employer or person would be irreparably injured by

denial of injunction pending appeal. St.1953, c. 1, secs. 1 et seq., 7.

OPINION

On Petition For Temporary Injunction

Per Curiam:

This appeal is from an order of the trial court denying an injunction pendente lite. Before

this court appellants have moved for an injunction pending appeal. A temporary restraining

order was granted, ex parte, until hearing upon the motion could be had.

The suit below is for a permanent injunction to restrain respondent union from calling a

strike against appellant Stine doing business in North Las Vegas as the "A-1 Plumbing

Supply Company." The principal reason for the calling of the strike related to Stine's

employment of appellant Ringelberg. The union contends that such employment is contrary to

a collective bargaining agreement between Stine and the union. Appellants contend that so far

as that agreement affects Ringelberg's employment it is contrary to Nevada's statute

prohibiting denial of employment because of nonmembership in a labor organization, (1953

Stats. Nev., Ch. 1, p. 1); that the agreement therefore is void.

The merits of this controversy are still far removed from our consideration at this time.

Upon the merits of this appeal we shall be concerned with the manner in ��%� ��3�� "��%��


which the trial judge exercised his discretion in denying the injunction pendente lite. Upon

this motion we are concerned only with the manner in which we shall exercise our own

discretion with reference to an injunction pending appeal.

Appellants first contend that it is not necessary for them to show irreparable injury as a

basis for a temporary injunction. Section 7 of the 1953 statute reads as follows: “* * * Any

person injured or threatened with injury by an act declared illegal by this act shall,

notwithstanding any other provision of the law to the contrary, be entitled to injunctive relief

therefrom.”

[Headnote 1]

Since the legislature has provided for injunctive relief against a violation of the statute it is

not necessary independently to show irreparable injury in order to entitle a person injured to

the injunctive relief so provided. Nevada Real Estate Commission v. Ressell, 72 Nev. 79, 294

P.2d 1115. The application of this principle to the granting of a temporary injunction is dealt

with in Douds v. Local 294, 75 F.Supp. 414, 418, where the court stated, “‘As the issuance of

an injunction in cases of this nature has statutory sanction, it is of no moment that the plaintiff

has failed to show threatened irreparable injury or the like, for it would be enough if the

statutory conditions for injunctive relief were made to appear.' * * * There is nothing in the

statute which would prompt the Court to depart from the recognized rule of equity that

interlocutory relief may be granted upon a showing of reasonable probability that the moving

party is entitled to final relief. A showing of a prima facie case for equitable relief satisfies

the statute.”

[Headnote 2]

Applying the principles of the Douds case to our present motion it might be said that it

would not be necessary to show irreparable injury in order to justify the granting of an

injunction pending the appeal if the �� %� ��


appellant has made a prima facie showing of abuse of discretion on the part of the trial judge,

(the final issue upon this appeal). We are unable to state, however, that such a showing has

been made. The trial judge in handing down his order denying temporary injunction made

written findings of fact and conclusions of law from which it appears that he had tentatively

examined the issues with which he would be compelled to deal upon the merits, had

tentatively concluded that the collective bargaining agreement did not violate the 1953 statute

and therefore that the probabilities were against the granting of final relief.

[Headnote 3]

These preliminary or tentative determinations made by the trial court as a basis for its

exercise of judicial discretion cannot be examined and tested by this court without our

prejudging the merits of the controversy now pending before the trial court, which we must

decline to do. We are, then, unable to say that a prima facie case of abuse of discretion has

been made out.

If appellants are to be granted an injunction pending this appeal it must, then, be upon the

ground that they will suffer irreparable injury should the injunction not be granted. This they

do contend.

Appellant Stine states that he must either violate the 1953 statute himself by discharging

Ringelberg or go out of business. Ringelberg contends that if discharged his status as a

practicing plumber would in reality be destroyed without regard to the outcome of the suit

below upon the merits.

[Headnote 4]

We are not convinced upon either point. The union is not insisting that Ringelberg be

discharged. He is employed as a sales clerk and stock clerk, functions beyond the concern of

the respondent union. The union insists that, pursuant to its agreement with Stine, Ringelberg

discontinue cutting pipe, upon which, incidental to his employment as clerk, he spends about

25 ��


percent of his time. If these duties were performed by a plumber employee, union opposition

would cease. The question, then, is whether Stine or Ringelberg would suffer irreparable

injury by temporarily submitting to the union's demands as to Ringelberg's pipecutting. It

would seem obvious that any injury suffered would be ascertainable in dollars and cents and

fully compensable in money damages should appellants ultimately prevail.

Under these circumstances IT IS ORDERED that the motion for temporary injunction is

denied. The temporary restraining order heretofore granted is ordered terminated.

____________

��72 Nev. 160, 160 (1956) Gardner v. Fort��

WALTER L. GARDNER, Appellant, v. ARTHUR FORT and IONE KATHERINE FORT,

Respondents.

No. 3922

June 13, 1956. 298 P.2d 468.

Appeal from judgment of the Eighth Judicial District Court, Clark County; Frank

McNamee, Judge, Department No. 1.

Suit involving a boundary dispute. Judgment for plaintiffs in the lower court and the

defendant appeals. The Supreme Court, Badt, J., held that the evidence supported the trial

court's findings as to the proper location of the lines involved.

Affirmed.

George E. Marshall, of Las Vegas, for Appellant.

Rudiak & Lionel, of Las Vegas, for Respondents.

1. Boundaries. In boundary dispute, evidence supported the trial court's findings as to the proper location of lines in

dispute. N.C.L. 1943-1949 Supp., sec. 2875.05e.


2. Boundaries. In boundary dispute evidence did not support the defendant's contention that a quarter corner found by

the government surveyor was a monument and marker of the original survey and that if so the survey by the

Bureau of Land Management was a resurvey and as such could not affect the rights of entrymen that had

attached. 43 U.S.C.A., sec. 772.

3. Public Lands. In boundary dispute where defendant's present reliance upon location of a monument found by his

surveyor was a collateral attack upon the patent issued to the predecessor as well as the patent issued to the

predecessor of defendant such collateral attack could not be made.

OPINION


[Headnote 1]

The only material question involved in this appeal is whether the evidence supports the

court's finding as to the proper location of the north line of section 13, T. 21 S., R. 61 E.,

M.D.M., in Clark County, Nevada, and, more particularly, the location of the N 1/4 corner of

said section approximately at the center of a straight line connecting the NW corner with the

NE corner of said section. Our conclusion is that it does. Conversely stated, did the evidence

justify the court's rejection of appellant's contention that a certain monument, consisting of an

unmarked 4x4 post in a mound of rocks, set some distance from the quarter corner point

described, was the actual original N 1/4 corner. We are satisfied that the court was justified

by the evidence in rejecting such contention. Other points are determined in the following

opinion.

We refer to the respondents Arthur Fort and Ione Katherine Fort as Fort and to appellant

Walter L. Gardner as Gardner. Gardner and Fort's predecessor were adjoining owners of

so-called five-acre tracts. Fort's predecessor, Humphrey, owned the tract to the �� =��


north and Gardner the tract to the south. Fort acquired from his predecessor, Humphrey,

approximately the south 273 feet of Humphrey's five-acre parcel. The boundary line between

Fort and Gardner is in dispute, Fort having sued Gardner to establish the line contended for

by the former. The court so established it and Gardner has appealed.

The patent to Fort's predecessor Humphrey was for W 1/2 NW 1/4 NE 1/4 NW 1/4,

containing five acres according to the official plat of the Bureau of Land Management. Patent

to Gardner was for W 1/2 SW 1/4 NE 1/4 NW 1/4, containing five acres according to the

official plat of the Bureau of Land Management. The original survey by the United States

Land Office was in 1882 or 1886. This was followed by a survey of the General Land Office

in 1942. The survey under which the plat was made by the Bureau of Land Management

(which took over functions of this nature from the General Land Office) was made in 1952.

From 1950 to 1952 F. M. Eaton, a duly registered civil engineer and land surveyor, apparently

surveyed the N 1/2 of section 13 for a number of people who desired to make entries upon

five-acre tracts and he recorded such survey in 1954. 1 In making his survey for this purpose

he found the NW corner of section 13 and the NE corner of section 13. The brass markers

identifying these two corners had been placed there by the General Land Office in 1942 or

1943. In searching for the N 1/4 corner of the section, he found no such corner in place on the

northerly section line of section 13, but did discover a 4 x 4 post in a mound of rocks 27.6

feet to the north and 20.6 feet to the east of the ��3��)��

____________________

1 Section 2875.05e N.C.L., 1943-1949 Supp. (amendment Stats. 1953, 196, not affecting the situation), of

the land surveyors' act, requires a surveyor within 90 days after the establishment of points or lines to file a

record of his survey with the county recorder, showing material evidence not appearing on any prior recorded or

filed map, any material discrepancy with any such prior record, evidence that might result in alternate positions

of points or lines, the establishment of points not ascertainable from inspection of such map without

trigonometric calculations, showing all monuments found, describing them etc., giving their bearings and other

similar data.


approximate center of the north line of section 13. From inquiries made of a neighboring

landowner and from the latter's report that the point of diversion in an application to the state

engineer for permission to appropriate underground water had been tied in to this monument

as the N 1/4 corner of section 13 (which he verified from the state engineer's published

notice), he accepted it as such and designated it on his map as such. His entire survey was

based upon the acceptance of this monument as the N 1/4 corner of said section. It had no

markings on it, official or otherwise. The original plat of the government survey of 1882 or

1886, while designating the NW corner and the NE corner and describing the markings

thereon, did not, so far as disclosed by the evidence, indicate that any monument had been

placed for the N 1/4 corner. 2

The survey made by the Bureau of Land Management in November, 1952 resulted in

placing the N quarter corner of section 13 on the north boundary of that section,

approximately halfway between the NW corner and the NE corner. A subsequent survey and

grading work by the state department of highways in constructing a road along the north

boundary of section 13 destroyed or covered the monument that Eaton had found. The patent

issued to Humphrey in August, 1954 and the patent issued to Gardner in June, 1954, with

respective descriptions as above set forth, were in accordance with the Bureau of Land

Management survey. There was no evidence as to the respective dates of the entries (proper

filings in the Bureau of Land Management and issue of certificates of entry and payment of

fees) which resulted in the two respective patents.

[Headnote 2]

Defendant asserts in his appeal (1) that the quarter corner found by Eaton is a monument

and marker of the original survey; (2) that, if so, the survey by the >��2�� 8��)*+'� ��"<

____________________

2 No copy of the original government township plat was offered in evidence by either party. Much of the

evidence with reference to it was by way of statement of recollection of the witnesses.


Bureau of Land Management in 1952 was a resurvey; and (3), being such, it could not affect

the rights of entrymen that had attached. Sec. 772, Title 43, U.S.C.A., Barringer v. Davis, 141

Iowa 419, 120 N.W. 65.

There is no substantial factual support of these contentions.

[Headnote 3]

Fort contends in addition that Gardner's present reliance upon the location of the

monument found by his surveyor Eaton is a collateral attack upon the patent issued to

Gardner as well as upon the patent issued to Humphrey, and that such collateral attack may

not be made. Cragin v. Powell, 128 U.S. 691, 9 S.Ct. 203, 32 L.Ed. 566; Earl v. Morrison, 39

Nev. 120, 154 P. 75. This contention too we believe to be well founded.

Technically the judgment quieted plaintiffs' title in the metes and bounds description of the

approximate south 273 feet of the five-acre tract patented to their predecessor as described in

his patent, and ordered the defendant to remove a fence placed by the defendant on plaintiffs'

said tract and enjoined defendant from trespassing on plaintiffs' tract. The findings are amply

supported and the conclusions drawn are warranted by said findings.

The judgment is affirmed with costs.


____________

��72 Nev. 165, 165 (1956) Leonard v. Bowler��

STELLA B. LEONARD, Formerly Known as STELLA B. LEONARD BELANGER, Now

STELLA BRYSON, Appellant, v. MILTON A. BOWLER and MILTON D. BOWLER,

Respondents.

No. 3893

June 13, 1956. 298 P.2d 475.

Appeal from judgment of First Judicial District Court, Churchill County; Frank B.

Gregory, Judge.

Action in claim and delivery to recover possession of herd of cattle which plaintiff's

husband sold to first buyer who sold to second buyer who sold to defendants after plaintiff

commenced divorce action and prior to divorce decree declaring that herd was plaintiff's

separate property. The lower court rendered judgment for defendants and plaintiff appealed.

The Supreme Court, Badt, J., held that on reversal of judgment for defendants for lack of any

evidence that plaintiff was estopped from asserting her title as against defendants the case

would be remanded for new trial on issues raised by the defense, which was erroneously

struck, that plaintiff's own title to herd passed to first buyer to second buyer to defendants

through husband as plaintiff's authorized agent or through husband's act which plaintiff

subsequently ratified.


Sinai & Sinai, of Reno, for Appellant.

Vargas, Dillon & Bartlett and Alex A. Garroway, all of Reno, for Respondents.

1. Estoppel. Where wife instituted divorce action and husband sold herd of cattle to buyer who sold herd to second

buyer who sold herd to third buyers prior to divorce decree declaring that herd was wife's separate

property, and wife failed to name third buyers as parties to wife's action in claim and delivery against first

and second buyers, evidence disclosed that such failure did not estop wife from asserting her title to herd in

�� "�� "��"��"�� "�� "� �� "� ��


instant action in claim and delivery against third buyers on any theory that third buyers suffered any

detriment or relied upon or were misled by what wife did or did not do.

2. Appeal and Error. The Supreme Court may, in a proper case and in the exercise of its discretion, consider cross-assignments

of error made by respondent.

3. Appeal and Error. In action in claim and delivery to recover possession of herd of cattle which plaintiff's husband sold to

first buyer who sold to second buyer who sold to defendant after plaintiff commenced divorce action and

prior to divorce decree declaring that herd was plaintiff's separate property, where trial court erroneously

struck defense that plaintiff's own title to herd passed to first buyer to second buyer to defendants through

husband as plaintiff's authorized agent or through husband's act which plaintiff subsequently ratified, on

reversal of judgment for defendants for lack of any evidence that wife was estopped from asserting her title

as against defendants the case would be remanded for new trial on issues raised by such defense.

OPINION


[Headnote 1]

Through pretrial orders, orders rejecting evidence tendered by defendants, and instructions

to the jury, the trial judge permitted to go to the jury the single question as to whether plaintiff

by her actions was estopped from asserting her title to the cattle involved in this long

continued controversy. The jury by its general verdict for defendants found such an estoppel

to exist. Plaintiff contends that there is no evidence whatsoever upon which such estoppel can

be based. We agree with that contention.

On the fourth occasion in which this controversy reached this court, Bowler v. District

Court, 68 Nev. 445, 454, 234 P.2d 593, 598, will be found the history of the case in which we

noted even then, in 1951, “the long history of the litigation involving these parties, in the

course of which no trial of the issue of ownership has as "�� $


yet been had.” That issue finally was tried and in Bowler v. Leonard, 70 Nev. 370, 269 P.2d

833, we noted that the case was before the court for the fifth time, and listed the connected

cases. In that trial the court determined title to the herd of 41 milch cows and 2 bulls to be in

Stella B. Leonard, formerly Stella B. Leonard Belanger, then and now Stella B. Bryson. In the

appeal on the merits in that case we were compelled to reverse and remand for a new trial,

though affirming the appointment of a receiver. This was because the court erroneously held

that Mrs. Bryson's prior judgment in her action against Childers and Vrenon, to which the

Bowlers were not parties, was res judicata as against the then defendant Bowlers, the present

defendants and respondents. In holding that the Bowlers were entitled to assert their own

defense against Mrs. Bryson's claim of ownership, we thus provided them with a shield

(whether or not it might prove an effective one) against the judgment she had obtained

against Childers and Vrenon. The Bowlers have now apparently persuaded the jury in the trial

below that the shield we thus provided might also serve as a sword. In the eyes of the jury, by

neglecting to name the Bowlers as parties to the former suit, not only did plaintiff fail to

secure a judgment against them—she had acted also in such manner that it was

unconscionable for her now to assert a claim of title against them.

In sustaining the propriety of such conclusion on the part of the jury, the contention of the

Bowlers is substantially as follows: that when plaintiff failed to bring suit against them they

assumed that she was not claiming the cattle as against them and that so far as she was

concerned their title was perfectly good; that in reliance upon this “representation” they

proceeded to treat the cattle as their own; that they milked them and disposed of the milk; that

they borrowed on them; that they would have acted differently in respect to the herd had they

known that plaintiff claimed title to it against ��


them. Explaining this further, one of respondents testified: “We would have probably seen

just how fast we could have got rid of those forty-one cows and two bulls.” Respondents

emphasize appellant's failure to sue Childers and Vrenon until October, 1949; her failure to

make sufficient inquiry as to the position or location of the livestock; her failure to join

respondents as defendants in that action; their reliance thereon and their failure to believe that

they would ever be held to be accountable; their lack of knowledge that appellant claimed as

against them until the cattle were actually seized by the sheriff in the action against Childers

and Vrenon, to which they were not parties; her failure to bond against their third party claim

on such seizure under execution against Childers and Vrenon; her failure to demand a hearing

to determine title under the said levy of execution; the successful application made by them

for a writ of mandamus compelling the sheriff to return the cows to them; and their asserted

reasonable reactions to all of this—namely, that they believed that she acquiesced in their

claim of title, that they were entitled thus to rely, that they acted upon such reliance and that

plaintiff was accordingly estopped to assert her title as against them.

We are satisfied from a study of the record that one or more of the requisites of equitable

estoppel are entirely lacking. That the respondents suffered any detriment whatsoever by

reason of their claimed reliance upon the actions of appellant is in itself extremely doubtful.

That they relied at all upon such actions is without support in the record. They knew in

November, 1948 that appellant was suing Childers and Vrenon for the recovery of the cattle,

claiming them to be hers. It is true, as we held in the last appeal, Bowler v. Leonard, 70 Nev.

370, 381, 269 P.2d 833, 838, that they were under no requirement to intervene to protect their

title, in a suit to which they were strangers, but might rest assured that a judgment in such

action, to which they were not summoned to appear, would not affect their legal rights. They

were, however, not entitled to assume ��.�� 3��


that appellant's claim of ownership of these particular cattle excluded respondents from its

scope. Their refraining from intervening in the prior suit, their refraining from advising

themselves as to the nature of that action, while not necessarily resulting in any loss of their

rights, certainly created no new rights in them. Their knowledge of plaintiff's action against

Childers and Vrenon for recovery of the particular livestock in question was knowledge that

she asserted a general claim of ownership. Their claim that they were misled, that they were

thus the victims of misrepresentation on plaintiff's part and that plaintiff is thus estopped to

assert her claim of ownership as against them thus fails in its entirety and there is no escape

from our duty to remand for a new trial.

[Headnotes 2, 3]

This would in ordinary circumstances dispose of the appeal and our order remanding

would be limited to the issue of damages. This would ordinarily follow from our holding that

the defense of estoppel against the plaintiff's assertion of ownership was wholly without

factual support. A further problem faces us, however.

Defendants contended below that plaintiff's own title had passed to Childers, from

Childers to Vrenon and from Vrenon to defendants through her husband Belanger as her

authorized agent, or through an act of Belanger's which she subsequently ratified. The trial

court struck this defense. It ruled that since the divorce decree awarded title to the herd to

plaintiff as against her husband Belanger and since defendants claimed through Belanger,

plaintiff's title as against the defendants had been established as of the date of the divorce

decree. In the former appeal, however, we recognized that the defendants' claim of title was

not limited to the acquisition of Belanger's title but included the claim that they acquired title

from plaintiff herself. We said in our former opinion: “Childers, Vrenon and appellants all

contend that, even accepting such ownership [by Mrs. Leonard] [she], by her conduct either

authorized >��.��?��


Belanger's sale to Childers, or ratified it, or is estopped to deny such authority.” Bowler v.

Leonard, 70 Nev. 370, 378, 269 P.2d 833, 837. It is clear that the trial court was in error in

striking the defense that plaintiff's own title had passed first to Childers, then to Vrenon, and

then to defendants, by reason of actions by her agent Belanger, either as previously authorized

by her, or as subsequently ratified by her. Such issue has never been determined, and

respondents contend that such failure of determination resulting from such error, redounds to

their prejudice. To this end they have made cross assignments of error.

Such cross assignments of error are, however, not in support of a cross appeal. Indeed it is

difficult to envisage a cross appeal by respondents. The verdict of the jury was that the

plaintiff take nothing, and the defendants were clearly not aggrieved by the judgment entered

on that verdict. Plaintiff contends that this court may not consider cross assignments of error

asserted by respondents under the circumstances and relies upon Dennis v. Caughlin, 22 Nev.

447, 41 P. 768, 29 L.R.A. 731, and three prior decisions of this court therein cited. The cited

case does indeed state such to be the rule. That was an appeal in an election contest in which

the lower court's acceptance or rejection of ballots was reviewed. This court held that the

rejection of fifteen individual ballots was erroneous and remanded the case for a new trial.

Though it refused to examine ballots which the respondent, in his cross assignment of errors,

asserted to have been erroneously rejected, the court spelled out the rules which would guide

the court in the second trial. In Nesbitt v. Chisholm, 16 Nev. 39, the successful plaintiff in an

action to set aside a deed asserted error because the decree purported to convey certain

interests to persons who were not parties to the action. While the court refused to do this, it

actually passed on the assignment of error by declaring that the portion of the decree

adjudging that stated interests were vested in those persons was ��"�


a nullity. The judgment was affirmed as to the parties. In Moresi v. Swift, 15 Nev. 215, this

court again said, with reference to certain errors asserted by the respondent: “We are only

called upon to examine errors assigned by appellant.” Nevertheless, the court did discuss

some of such assigned errors and finally said: “Enough has been said already to indicate the

rights of the parties at another trial.” The dissenting opinion likewise passed upon

respondent's assignments of error, both with respect to rulings on evidence and instructions to

the jury. This opinion held that evidence offered by respondent “was erroneously excluded by

the court”—respondents' precise assignment in this appeal. In Maher v. Swift, 14 Nev. 324,

this court for the first time referred to the rule that it was “only called upon to dispose of such

questions as are assigned as error by the appellant * * * not * * * the errors, if any, that may

have been committed against the respondent.” Three early California cases were cited. In this

instance too, however, the court indicated its view upon the respondents' assignment of error.

Those are the four cases in which this court treated of the question, the last holding, in the

Dennis case, having been 61 years ago. In each case the court paid lip service to the rule but

in each case, to a greater or less extent, the court actually indicated its views on the

respondents' assignments of error. From the discussion of the subject appearing at 5 C.J.S.

168, Appeal and Error, Sec. 1498, it appears that the rule varies in the different jurisdictions

and under varying circumstances. In our judgment the foregoing history of the consideration

of the rule in this state and of the action taken by this court in the cases in which the rule was

considered leads to the conclusion that this court may, in a proper case and in the exercise of

its discretion, consider cross assignments of error made by the respondent.

Our consideration of the cross assignments in the present appeal is necessary at least to a

determination of the scope of our remand, as noted earlier in this ��


opinion. Further, considering the history of this litigation, we feel wholly justified in

correcting error which would unquestionably be brought back to us after a second new trial

and result inevitably in a remand for a third new trial.

Reversed and remanded for new trial. The costs of this appeal shall be equally shared by

the parties.


____________

��72 Nev. 172, 172 (1956) Barringer v. Ray��

ROBERT E. BARRINGER, Intervening Defendant; FIRST NATIONAL BANK OF

NEVADA, Administrator With the Will Annexed; and CARLITA NANCY RAY, a Minor

Defendant by Jeanne S. Houssels, Guardian Ad Litem, Appellants, v. IDA ANGELOT RAY,

Respondent.

Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.

Henderson, Judge, Department No. 2.

No. 3902

June 14, 1956. 298 P.2d 933.

Widow's action for specific enforcement of antenuptial agreement whereunder deceased

husband had agreed to devise certain property in trust with half the income therefrom to go to

her for life. Judgment for plaintiff was entered and appeal was taken. The Supreme Court,

Badt, J., held, inter alia, that where antenuptial agreement required wife to take under

husband's will and will which was executed to carry out provisions of agreement devised

realty in Nevada and two other states in trust, with the half the income therefrom to go to wife

and, in such other states will thus successfully implemented contract but in Nevada a

pretermitted heir successfully asserted right to share in estate, neither wife's seeking and

accepting distribution of real estate in other states, her seeking probate of will in Nevada, �� "��


nor her opposing petition of pretermitted heir constituted election to take under will which

would preclude her from specifically enforcing antenuptial agreement.

(Petition for rehearing denied July 12, 1956.)

Affirmed.

Hawkins & Cannon, of Las Vegas, for Appellant Barringer.

Ham & Ham, of Las Vegas, for Appellant First National Bank of Nevada, Administrator

C.T.A.

Jeanne S. Houssels, of Las Vegas, Guardian Ad Litem and attorney for Carlita Nancy Ray,

a minor defendant.

Harry E. Claiborne, of Las Vegas, for Respondent.

1. Election of Remedies. A man may not take two contradictory positions, and where he has right to choose one of two modes of

redress and two are so inconsistent that assertion of one involves negation or repudiation of other, his

deliberate and settled choice of one, with knowledge, or means of knowledge, of such facts as would

authorize a resort to each, will preclude him thereafter from going back and electing the other.

2. Election of Remedies. Doctrine of election of remedies has application only to inconsistent remedies.

3. Wills. Election under a will consists in exercise of choice offered devisee or legatee of either accepting that

which is given by will and surrendering some claim or right or property which will undertakes to dispose

of, or retaining such claim, right, or property and rejecting provisions of will.

4. Election or Remedies. Once need for election is apparent, elector may be said to choose his course at his peril and to be

irrevocably committed to all legal consequences which might subsequently be determined to attach.

5. Wills. Even though antenuptial agreement required wife to take under provisions of husband's will in lieu of,

inter alia, any claim to family allowance, where will contained no such provision, wife's petition for and

acceptance of such family allowance in violation of contract did not constitute election to take under will

which would bar her right to enforce antenuptial agreement.


6. Wills. Where antenuptial agreement required wife to take under husband's will, and will which was executed to

carry out provisions of agreement devised realty in Nevada and two other states in trust with half the

income therefrom to go to wife, and in such other states will thus successfully implemented contract, but in

Nevada a pretermitted heir successfully asserted right to share in estate, neither wife's accepting

distribution of real estate in other states, nor her seeking probate of will in Nevada, nor her opposing

petition of pretermitted heir constituted election to take under will which would preclude her from

specifically enforcing antenuptial agreement.

7. Witnesses. The dead man's statute did not preclude wife from testifying to signature of herself and deceased on

antenuptial agreement. N.C.L.1929, secs. 8966, 8970.

OPINION


The main question presented in this appeal is whether the respondent Ida Angelot Ray, as

surviving wife of Carl Ray, deceased, was bound by her alleged election to take under the will

of the testator to the end that she was estopped from seeking specific performance of an

antenuptial agreement. The learned district judge rejected such defenses of election and

estoppel in pais, and we agree with his conclusion. Certain other assignments of error are

likewise disposed of in this opinion.

On April 19, 1946, an antenuptial agreement was entered into between the parties by

which the husband agreed to make certain disposition of his property in favor of his wife

upon his death. Following the marriage of the parties a will was executed by the husband

which, upon his death, was admitted to probate upon application of the wife. Appellant

Barringer, claiming as pretermitted heir of the decedent, successfully asserted his right to

share in the estate. In Re Estate of Carl Ray (Petition of Barringer), 69 Nev. 204, 245 P.2d

990. The wife then brought this action to enforce the antenuptial agreement. Appellants

contend that her actions in support of the will constituted an election to �� "��


take under the will and that she is precluded by that election from now asserting a right to the

estate under the agreement.

The preamble of the antenuptial agreement of April 19, 1946 read in part as follows:

“WHEREAS, a marriage is about to be solemnized between the parties hereto; and

WHEREAS, in anticipation of such marriage said parties desire by an ante-nuptial agreement

to fix and determine the rights of each of them in any and all property of every nature and

description and wheresoever located, that either of them may own at the time of such

marriage, or may acquire thereafter, and, particularly, to have the said first party agree to

make, and make, and the second party to agree to accept, and accept, a pecuniary provision

for the second party's benefit, in lieu and full discharge and satisfaction of any and all rights

or claim of dower or any claims to community property, and of any and all other rights,

claims or interest in or to any and all of the first party's property, whether real, personal or

mixed, and wherever situated, that she may have as wife or widow, but for such provision and

the execution and delivery of this agreement, and the full performance thereof by said first

party, his heirs, executors, administrators or assigns, whether the foregoing rights, claims,

titles and interest will or would inure to said second party by statute, common law, or

otherwise; * * *.”

The agreement recited that it was made in consideration of the foregoing and of the

marriage about to be solemnized and of the subsequent terms and covenants set forth.

Paragraph 1 of the first covenant read as follows: “1. That the first party shall make and keep

in existence a valid will, wherein and whereby all of his property will be bequeathed to a

trustee and said will shall provide that the second party shall receive one-half (1/2) of the net

proceeds of said trust estate, upon the condition that the second party shall have lived with

first party as his wife until the date of his death and during said time been a loyal, devoted

wife to him.”


Paragraph 3 provided that the foregoing provisions should be “in lieu and in bar of any and

all right or claim of dower, in and to any and all of the lands, tenements and hereditaments of

said second party, wheresoever the same may be located, or to which the second party might

be or become entitled after consummation of her marriage to said first party, as wife or

widow, and in lieu of any right which the second party might have to apply to the court for a

family allowance or support money from the estate of the first party in the event of his death *

* *, and also in lieu of any claim to any of the first party's property of whatsoever nature and

wherever located.”

Carl Ray thereafter executed a formal and carefully drawn will, the copy whereof

appearing in the record occupies some 25 folios. Provision Fourth contains bequests

aggregating $6,000. Provisions Fifth and Sixth contain further minor bequests.

Provision Seventh of the will gives, devises and bequeaths all of the rest, residue and

remainder of Ray's estate, of every kind or nature and wherever situate, to three trustees, of

whom respondent is one, for the uses, purposes, powers and trusts thereafter specified and

containing a particular description of four separate parcels of real property, parcel three being

in the State of Wyoming and parcel four being in the State of California. Under section 1 of

provision Seventh one half of the net income (but not less than $500 a month) is payable

monthly to the testator's widow for the entire term of the trust. Out of the other half of the

income, $100 a month is payable to the testator's daughter Carlita Nancy Ray, $100 a month

to the testator's nephew Truman Nye (a like $100 monthly payment to a boy intended to be

adopted, which provision never became effective) and, at the end of each calendar year, if

there be additional net income undistributed, and in the discretion of the trustees, one half

thereof to the surviving wife and one half to the daughter (alternate provisions for a portion to

go to the boy, if adopted, not coming into being, as ��


there was no such adopted son). The testator declared the primary purpose of the trust to be

“to provide for my said wife and adopted child or children.” Alternate provisions were made

in the event of the death of the testator's wife and in the event of the death of the testator's

daughter. The term of the trust is declared to be twenty years, with instructions for

maintaining intact certain of the parcels of real property.

Provision Eighth of the will provides for distribution of the corpus and accumulations, on

termination of the trust, one half to the wife and one half to the daughter (alternate provision

for the adopted son never becoming effective).

Provision Tenth bequeaths $1 only, in place of all other bequests, devises and interests to

any devisee, legatee, beneficiary or other person who would be entitled to share in the estate

who directly or indirectly contests the will or seeks to impair or invalidate any of its

provisions or who conspires or cooperates with any person attempting such things or who

settles or compromises in or out of court with any such contestant or who fails to oppose such

proceedings or endeavors to succeed to any part of the estate otherwise than through the will.

Provision Thirteenth appoints the wife Ida Angelot Ray and Paul Angelillo executors.

Provision Fifteenth requires the executors to defend any contest to the probate of the will.

On petition of the named executors, appellant being one, the will was admitted to probate

in Nevada, California and Wyoming. The estate in Wyoming was closed by distribution to the

trustees for the purposes mentioned in the trust. The California estate was likewise

administered under the provisions of the will.

Counsel for the respective appellants filed separate briefs and orally argued the case on

behalf of the respective appellants. Their most seriously urged assignment of error is that the

respondent, in accepting the benefits of the will and in electing to take thereunder, is estopped

from seeking specific performance of the antenuptial ��


contract. We might say, as did the court in Willard v. Shekell, 236 Mich. 197, 210 N.W. 260:

“Counsel have furnished a wealth of authorities * * * dealing with the question of election of

remedies, all of which have been examined, but as we have reached the conclusion that the

remedies pursued, or attempted to be pursued, were not inconsistent, it will not be necessary

to discuss all or any considerable number of them.” We note in the margin the main cases

upon which appellants rely. 1

[Headnotes 1-3]

Some of these authorities so aptly state the rule that we quote some of the expressions

used. Thus in Sackett v. Farmers' State Bank, cited below [209 Iowa 487, 228 N.W. 52] the

court adopted the following language from Elm Creek Elevator Company v. U. P. Railway

Company, 97 Iowa 719, 66 N.W. 1059, 1061, 59 Am.St.Rep. 434: “‘A man may not take two

contradictory positions, and where he has a right to choose one of two modes of redress, and

the two are so inconsistent that the assertion of one involves the negation or repudiation of

the other, his deliberate and settled choice of one, with knowledge, or means of knowledge,

of such facts as would authorize a resort to each, will preclude him thereafter from going

back and electing again.'” It then emphasized: “The doctrine of election of remedies has

application only to inconsistent remedies.” And in Burns v. First National Bank of Joliet, 304

Ill. 292, 136 N.E. 695, 696, the court thus expressed the rule: “Election under a will consists

in the exercise of choice offered a devisee or legatee of either accepting what is given by �� "� ��

____________________

1 Towle v. Towle, 79 Wis. 596, 48 N.W. 800; Alerding v. Allison, 31 Ind.App. 397, 68 N.E. 185; Crawford

v. Briant, 10 Cir., 53 F.2d 754; Sackett v. Farmers' State Bank, 209 Iowa 487, 228 N.W. 51; Noyes v. Noyes,

233 Mass. 55, 123 N.E. 395; Hardeman v. Ellis, 162 Ga. 664, 135 S.E. 195; West v. West, 131 Miss. 880, 95

So. 739, 29 A.L.R. 226; Ross v. First Presbyterian Church, 272 Mo. 96, 197 S.W. 561; Lynch v. Jones, 247

S.W. 123; Appeal of Baker's Estate. 170 Okl. 595, 41 P.2d 640; In re Melot's Estate, 231 Pa. 520, 80 A. 1051;

Adams v. Adams, 95 W. Va. 187, 120 S.E. 590; also 4 Page on Wills 40-50 Sec. 1366; 57 AmJur. 168, Wills,

sec. 191; Anno. 69 A.L.R. 103; Anno. 106 A.L.R. 755.


the will and surrendering some claim or right or property which the will undertakes to dispose

of, or retaining such claim, right, or property and rejecting the provision made by the will. If

there is such a claim inconsistent with the provision of a will, the testator does not intend that

the beneficiary shall enjoy both the right or property claimed and what is given by the will.

His intention being that all the provisions of the will shall take effect, a beneficiary cannot

accept that which is given by the will, and set up any right or claim, however legal or well

founded it may have been, which would defeat or prevent a full operation of the will.”

In these cases the need for an election was at once apparent. There was no question but

that the two courses of action which were available were inconsistent and that a choice

between them must be made.

In the case at bar the need for election was not apparent. The provisions of the will did not

appear inconsistent with the provisions of the written agreement except with respect to certain

cash bequests which we may consider minor in their proportion to the entire estate. We may

concede that the plaintiff waived any objection to these bequests and that would be an end to

that phase of the matter. The will had been executed not as a substitute for the provisions of

the agreement but in an attempt to comply with it. On its face it did appear to carry out the

terms of the written agreement, namely, to create a trust in one half of the benefits whereof

plaintiff would be the beneficiary. Any acceptance by plaintiff of the agreement, thus carried

out in the will, resulted in no inconsistency with a similar claim under the will itself. Thus in

that part of the estate administered in California and as to that part administered in Wyoming,

distribution under the will was substantially the same as if plaintiff's claim had been satisfied

under the agreement. In those two states the situation was in no way disturbed by any statute

or rule of law whereunder Barringer would take one third of the estate as a pretermitted heir.

In Nevada,


however, before it could be known that the two in the eyes of Nevada law were inconsistent

and that an election between them must, therefore, be made, an authoritative determination

upon a disputed point of law had first to be made. It was not until such determination was

made that the fact of inconsistency and the consequent need for election were established.

In In Re Estate of Carl Ray (Petition of Barringer), 69 Nev. 204, 245 P.2d 990, in

discussing the questions (1) whether the will did “provide” for Barringer, and (2) whether, if

not, such omission was intentional, 9919 N.C.L. 1929, we mentioned the state of confusion of

the authorities, the lack of consistency in the lines of distinction attempted to be drawn by the

courts, the undoubted frequent frustration of the testamentary intent through application of

the statute. Under these conditions, to hold that respondent must have made an election upon

notice of Barringer's claim as a pretermitted heir would credit her with knowledge of a

conclusion which this court reached only after much study and research.

Appellant contends that under the holding of this court in Robertson v. Robertson, this

does not affect the situation and calls our attention to the language there used: “The

conclusiveness of her election does not depend upon the chances of success that may attend

her suit, but upon the fact that she has resorted to a remedy which is inconsistent with the one

she now seeks to maintain, and has made such election with full knowledge of the facts in

each case.” Robertson v. Robertson, 43 Nev. 50, 59, 180 P. 122, 124, 187 P. 929. The

language quoted undoubtedly expressed the proper rule with respect to the facts in that case.

[Headnote 4]

Once the need for election is apparent or established the elector may be said to choose his

course at his peril and to be irrevocably committed to all legal consequences which might

subsequently be determined to attach. To require one to decide at his peril whether an election�� "�� 3�� "�� "��


must or need not be made in the face of a dispute upon the very point would be to extend the

rule for election of the Robertson case beyond its obvious purpose and convert it into an

unnecessary trap.

[Headnote 5]

As to plaintiff's asserted election by reason of her obtaining and accepting a family

allowance of $500 a month, it is a complete answer to note that such family allowance was

paid to her under the provisions of the Nevada statute and without any provision to such

effect under the will. Her petition for and acceptance of such family allowance, contrary to

her written contract with the testator to accept the provisions of the will in lieu, among other

things, of any claim to family allowance may indeed be a violation of her contract, but can

under no possible conception be characterized as a taking under the will. The will contained

no such provision. It is stated that the probate court has authorized the trustees to institute an

action to recover these payments for the trust estate and we need not anticipate the result of

such proceeding.

[Headnote 6]

It is our conclusion that neither her seeking and accepting distribution of the California

and Wyoming estate nor her seeking probate of the will in Nevada, nor her opposition to the

Barringer petition, nor her accepting family allowance payments in Nevada was a rejection of

the contract or an election to take under the will inconsistently with her rights under the

contract. In other words, in California and Wyoming the will successfully implemented the

contract, and the family allowance received by plaintiff was not the result of any provision in

the will and was no election to take under the will.

[Headnote 7]

Appellant assigns as error the court's ruling in permitting respondent to testify to the

signature of herself and the decedent on the agreement in question. Such �� .��


assignment is based on the dead man's rule, Secs. 8966, 8970, N.C.L. 1929. She identified the

signature of the decedent as his signature. Appellant contends that her testimony,

unobjectionable if simply given as her opinion, was objectionable because stated as a fact,

which the decedent, if alive, might have contradicted. We need not argue this distinction.

This court held in Hough v. Reserve Gold Mining Co., 55 Nev. 375, 35 P.2d 742, that such

testimony was not in violation of the statute. Accordingly, there was no error in overruling the

objection. Other errors assigned have been considered and found to be without merit.

The judgment is affirmed with costs to respondent.


____________

��72 Nev. 183, 183 (1956) Basic Refractories v. Bright��

BASIC REFRACTORIES, Inc., a Corporation, Appellant, v. WILLIAM C. BRIGHT and

WILLIAM C. BRIGHT, Jr., Copartners Doing Business Under the Fictitious Name and Style

of William C. Bright and Son; HAROLD W. GOODWIN, Doing Business Under the

Fictitious Name and Style of Nevada Paint and Floor Service; and ENTERPRISE ELECTRIC

CO., Inc., a Corporation; H. R. CURL; READY-MIX CONCRETE COMPANY, a

Corporation; SAVIERS ELECTRICAL PRODUCTS INC., a Corporation;

PETERSON-McCASLIN LUMBER COMPANY, a Corporation; JACQUES MORVAY,

Respondents.

STANDARD SLAG COMPANY, a Corporation, Appellant, v. BASIC REFRACTORIES,

INC., a Corporation, Respondent.

GLOBE INDEMNITY COMPANY, a Corporation, Appellant, v. STANDARD SLAG

COMPANY, a Corporation, Respondent.

STANDARD SLAG COMPANY, a Corporation, Appellant, v. GLOBE INDEMNITY

COMPANY, a Corporation, Respondent.

Nos. 3875, 3884, 3886, 3889.

June 18, 1956. 298 P.2d 810.

Appeal from judgment of the Fifth Judicial District Court, Nye County; William D.

Hatton, Judge; by Basic Refractories, Inc. in No. 3875; by Standard Slag Company in No.

3884; by Globe Indemnity Company in No. 3886; and cross appeal by Standard Slag

Company in No. 3889.

Action by mechanics' lien claimants against townsite lessee, third party, and the United

States to foreclose mechanics' liens arising from construction on townsite of dwellings which

would, upon completion, become property of the United States, as lessor. Other lien

claimants intervened. Townsite lessee cross-claimed �� "�


against third party, which had caused the dwellings to be constructed in accordance with

agreement with lessee, and third party filed third party complaint against contractor's surety.

Surety filed counterclaim against contractor. The lower court entered judgment against

townsite lessee, third party, and surety, and townsite lessee, third party, and surety appealed,

and third party cross-appealed against surety. The Supreme Court, Bowen, district judge, held

that governmental immunity would not extend to the leasehold interest for purpose of

preventing such interest from being subject to mechanic's lien arising from the construction

work.

Nos. 3875 and 3884 affirmed. No. 3886 affirmed, subject to modification of No. 3889.

No. 3889 affirmed as modified.

(Rehearing denied in No. 3889 November 13, 1956.)

See also 71 Nev. 248, 286 P.2d 747.

Vargas, Dillon & Bartlett, of Reno, for Appellant Basic Refractories, Inc.

Stewart and Horton, of Reno, for Respondents William C. Bright, William C. Bright, Jr.,

Harold W. Goodwin, and Enterprise Electric Co., Inc., a Corporation.

Goldwater, Taber & Hill, of Reno, for Respondent H. R. Curl.

Springmeyer & Thompson, of Reno, for Respondent Ready-Mix Concrete Company, a

Corporation.

John S. Halley, of Reno, for Respondent Saviers Electrical Products Inc., a Corporation.

Wilson & Brown, of Reno, for Respondent Peterson-McCaslin Lumber Company, a

Corporation.

Lohse & Fry, of Reno, for Respondent Jacques Morvay.


Sidney W. Robinson, of Reno, for Globe Indemnity Company.

Leslie B. Gray, of Reno, for Standard Slag Company.

1. Mechanics' Liens. Statute, which in effect provides that land occupied by structure is also subject to mechanic's lien if, at

commencement of the work, land belonged to person who caused building to be constructed, would not

preclude lien from attaching to leasehold interest, even though party, at whose immediate instance the work

was performed, had no interest in the land, in view of fact that, under agreement between such party and

lessee, the buildings were constructed at lessee's request and with its knowledge. N.C.L.1929, secs. 3737,

3743.

2. Mechanics' Liens. Where townsite lessee entered agreement with third party for third party's construction on townsite of

dwellings which would, upon completion, become property of the United States, as lessor, governmental

immunity would not extend to the leasehold interest for purpose of preventing such interest from being

subject to mechanics' lien arising from the construction work. N.C.L.1929,sec. 3737.

3. United States. Where townsite lessee entered agreement with third party for third party's construction on townsite of

dwellings which would, upon completion, become property of the United States, as lessor, and such

agreement provided that third party was to construct the dwellings free and clear of any liens, claims, or

encumbrances whatsoever, except for the lease, governmental immunity could not afford a defense against

third party's violation of contract provision pertaining to liens and claims, but such contract would be

capable of being either specifically enforced or its violation being made subject to a money judgment.

4. Principal and Surety.

Where townsite lessee entered agreement with third party for third party's construction on townsite of

dwellings, and surety obligated itself to pay over, make good, and reimburse to third party all loss and

damage which third party might sustain by reason of construction contractor's default, fact that lessee was

not party to contract between surety and third party could not serve to release surety from its obligation to

third party on contractor's default, in view of facts that third party was under immediate judgment either to

clear liens arising from contractor's default or pay amount thereof, and that contractor agreed to keep third

party free of all liens incurred in performance of contract and to indemnify third party against any and all

damage which might result or occur during such performance.


5. Mechanics' Liens. Where, under agreement with townsite lessee, third party was to construct on townsite certain

dwellings, and third party was granted equal right to purchase the townsite through an agent corporation,

which would act exclusively for both lessee and third party, and to construct additional dwellings by

being solely responsible for the cost, parties to the agreement intended that third party should be granted

the same rights to use and occupancy of the leased premises as held by lessee, and third party had, under

the agreement, a proper lienable interest in the townsite which was subject of foreclosure of mechanics'

liens arising from the construction.

6. Principal and Surety. Fact that costs and interests when added to principal sum of recoverable damages exceeded penal sum of

bond would not preclude recovery of costs and interests from surety.

7. Mechanics' Liens. Attorney's fees awarded mechanics' lien claimant became as much a part of the judgment as principal sum

itself and subject to same limitation in regard to recovery thereof under contractor's bond, namely, the limit

of the penal amount of the bond.

OPINION

By the Court, Bowen, District Judge:

As a result of a judgment and decree of lien foreclosure, three appeals and one

cross-appeal are now to be considered upon a consolidated appeal. While certain procedural

steps have heretofore been considered in our decision on respondents' motion to dismiss the

appeal of Basic Refractories, Inc., 71 Nev. 248, 286 P.2d 747, we must of necessity refer to

those and to other facts and circumstances as they become applicable to our decision upon

each of the appeals and the cross-appeal, which for convenience may be summarized as

follows:

1. No. 3875. An appeal by Basic Refractories, Inc., hereinafter referred to as “Basic” from

that certain judgment of lien foreclosure, dated January 31, 1955, in favor of respondent lien

claimants.

2. No. 3884. An appeal by Standard Slag Company, �� #�� $�� "�%� ��


hereinafter referred to as “Standard” from that certain order for summary judgment, dated

February 17, 1955, in favor of Basic against Standard.

3. No. 3886. An appeal by Globe Indemnity Company, hereinafter referred to as “Globe”

from that certain order dated March 29, 1955, granting summary judgment in favor of

Standard and against Globe.

4. No. 3889. Cross-appeal by Standard against Globe, which questions the limitation of the

amount of the primary judgment of lien foreclosure to $30,294.50 and costs.

It appears from the agreed stipulation of facts upon which the action for mechanics' lien

foreclosure was tried in the trial court, that on December 1, 1952, as a condition of purchase

of certain property located at Gabbs and Luning, Nevada, Basic as lessee entered into a

written lease of a certain townsite located at Gabbs, Nevada, together with the buildings and

improvements located thereon and the utilities with the Reconstruction Finance Corporation

and the United States of America, both acting by and through the Administrator of General

Services as lessor. In addition to providing for a term of ten years and many other matters, the

lessee was permitted to rent or lease portions of the premises without consent of the lessor

and to enter into mutually satisfactory arrangements with the “present users” of the properties

and to protect their interests at Gabbs, Nevada. 1 It was further agreed that Basic should

submit an irrevocable bid for the purchase of the property �� "�

____________________

1 “FOUR: The LESSEE shall have full operational responsibility for and control of the properties covered by

this lease, including, but not limited to, the right and privilege, without the consent of LESSOR, to rent or lease

portions of the premises or the facilities located thereon, and to furnish utility services by sale or otherwise

provided, however, that the LESSEE will undertake in good faith to make mutually satisfactory arrangements

with other present users of the properties, to protect their interests at Gabbs, Nevada.”


in the event the lessor should decide to sell the property. 2

Because Standard had mining and manufacturing operations at or near Gabbs, Nevada,

which were served by the utilities, and because Basic and Standard were interested in the

maintenance and improvements of the townsite for the betterment of their respective

operations and the best interests and general welfare of their respective employees, a program

for the joint participation in the benefits of, and the obligations with respect to the operation

and subleasing of the leased facilities and for the possible acquisition and disposition of the

leased premises was entered into by written contract, dated May 1, 1953. Among other things,

that agreement provided for the construction by Standard of not more than twenty multiple

four-unit residential dwellings which, upon completion, would become the property of the

lessor, in this instance the United States of America, and it was provided that these dwellings

“* * * * shall be free and clear of any liens, claims or encumbrances whatsoever except the

lease.” 3

____________________

2 “FIVE: If, during the terms of this lease, the LESSOR invites bids from prospective purchasers in an effort

to sell the entire premises leased hereby, subject to the terms and conditions of this lease, the LESSEE, as part of

the consideration hereof, agrees that it will submit to the LESSOR a bid of not less than TWO HUNDRED

SEVENTY-FIVE THOUSAND DOLLARS ($275,000.00) for such premises, payable in installments over a

period of twenty (20) years, said bid to constitute an irrevocable offer to purchase until accepted or rejected by

LESSOR; provided, however, that Lessor shall accept or reject such bid within a reasonable time after the date

set for the opening of bids.”

3 “TWO: Standard shall erect not to exceed twenty additional residential units on the townsite in multiple unit

structures, each of which shall contain not more than four units, pursuant to this agreement and an agreement

with the lessor which shall provide that the twenty residential units when completed shall be and become the

property of the Lessor and shall be free and clear of any liens, claims or encumbrances whatsoever except the

Lease. Eight of such units shall be erected by December 31, 1953, and the remaining twelve units shall be

erected within nine months from the date of written request by either party. The plans and specifications for the

twenty residential units shall be subject to approval by Standard, Basic, and the Lessor. In event the cost of said

units exceeds $50,000.00 the excess shall be borne one-third by Standard and two-thirds by Basic.”


On November 2, 1953, John C. Long, as the Long Construction Company, submitted a

written “Proposal” with several alternates to construct three four-unit dwellings at a cost of

$60,599, which Standard accepted in writing on November 10, 1953, upon the following

terms:

(a) “Builder to furnish completion bond in amount 50% of Contract Price” and

(b) “Builder to keep the Standard Slag Company free from all liens and encumbrances

incurred in the performance of this contract and to indemnify The Standard Slag Company

against any and all damages which may result or occur during said performance.”

Pursuant to the construction agreement as evidenced by the “Proposal” and its acceptance

of November 10, 1953, Globe on November 30, 1953, as surety for Standard, thereafter

executed a “Contract Bond” in the penal sum of $30,294.50 conditioned upon full

performance by Long Construction Company as principal of the construction contract which

was incorporated in said bond. Pertinent provisions of that bond appear below. 4

Long Construction Company thereafter performed the construction contract according to

its agreement with Standard, and although fully paid, the Construction Company failed to pay

certain labor claims and claims for materials. As a result respondents Goodwin, Bright, and

Enterprise Electric filed an action against Basic, Standard, and the United States of America

to establish and foreclose their respective liens. Other respondents intervened in the action as

lien claimants. The United ��&��

____________________

4 “WHEREAS, the above bounden Principal has entered into a certain written contract with the above named

obligee, dated the 10th day of November, 1953, [for the] construction of three (3) four (4) unit apartment

buildings to be located in Gabbs, Nevada, which contract is hereby referred to and made a part hereof as fully

and to the same extent as if copied at length herein.

“Now, therefore, the condition of the above obligation is such, that if the above bounden Principal shall well

and truly keep, do and perform, each and every, all and singular, the matters and things in said contract set forth

and specified, and shall pay over, make good and reimburse to the above named Obligee, all loss and damage

which said Obligee may sustain by reason of failure or default on the part of said Principal, then this obligation

shall be void; otherwise to be and remain in full force and effect.”


States of America was not served with process and did not appear in the action. Basic

thereafter cross-claimed against Standard, which in turn filed its third party complaint against

Globe. Globe in turn filed a counterclaim against Long Construction Company.

The trial court entered its judgment and decree of foreclosure on January 31, 1955, and

ordered that the leasehold interest of Basic in the three four-unit apartments, together with

certain parcels of land upon which the dwellings were located be sold, that the lien claimants

be paid, and that if such claim be not paid a deficiency judgment be entered against Long

Construction Company. Thereafter followed the entry of successive judgments of Basic

against Standard and Standard against Globe.

Appeal No. 3875

The first question presented is whether the trial court committed error when it rendered its

primary judgment of lien foreclosure on January 31, 1955, in favor of the unpaid lien

claimants and against respondent, Basic Magnesium Company. Basic, Standard and Globe all

join in this appeal from the primary judgment.

Based upon a construction of a portion of the agreement of Basic and Standard, which

provided as follows: “* * * that the twenty residential units when completed shall become the

property of lessor, and shall be free and clear of any liens, claims or encumbrances

whatsoever, except the lease,” appellants contend that the residential units, as soon as

constructed, became the property of the lessor, the United States of America, and that

governmental immunity attached as soon as they were placed upon the real estate. It is then

said that a valid lien cannot be asserted against improvements on real property, title to which

is in the United States of America, and governmental immunity not only attaches to the real

property and improvements but to every lesser interest. Respondents, on the other hand,

contend that it is clear from the agreement that while �� "��5�� &�� "��"��%�� 5�� &�� >��


the erected buildings became the property of the United States of America free and clear of

any liens they at the same time became subject to the lease between the United States of

America and Basic, and thus became a part of Basic's leasehold interest, which interest may

be subject to mechanics' liens.

On oral argument it was first urged that the United States of America was the only party

that could urge the defense of governmental immunity, not Basic, Standard or Globe, and

second that the Basic-Standard agreement should not be so construed as to permit them to

remove a right of recovery under the State of Nevada mechanics' lien law from the field of

litigation through the medium of contract.

While each of respondents' contentions may be determinative, we prefer to rest our

decision on the question of whether governmental immunity extends to a leasehold interest.

Cases cited and relied upon by appellants in support of their position are not

determinative. For example, John Kennedy and Company v. New York World's Fair, 260

App.Div. 386, 22 N.Y.S.2d 901, dealt with a particular mechanics' lien statute, which, unlike

our State, provided for a lien only “upon the moneys of the state or of such corporation

applicable to the construction of such improvement.” Lien Law, McK.Consol.Laws, ch. 33,

sec. 5. Griffith v. Happersberger, 86 Cal. 605, 25 P. 137, 487, did not involve any question of

the lienability of a leasehold interest, inasmuch as nothing was leased. Title Guaranty & Trust

Company v. Crane Co., 219 U.S. 24, 31 S.Ct. 140, 55 L.Ed. 72, involved a situation where

title to certain completed portions of a ship vested immediately in the United States of

America, and it was held that under the governmental immunity doctrine materialmen could

not directly foreclose their lien against the ship. Unlike the instant case there was no

lease-back provision.

On the other hand, Crutcher v. Block, 19 Okl. 246, 91 P. 895, 14 Ann.Cas. 1029, seems

more nearly to ��3�� .��


approximate our particular situation wherein an action to foreclose a materialmens' lien was

upheld, notwithstanding the fact that the building was located on real property, title to which

was vested in the United States of America. The Oklahoma court said: “The board for leasing

school, public building, and college lands of Oklahoma Territory leased to one * * * Butler *

* *. He subleased, as he had a right to under the law and the written condition of his lease, to

S. O. Crutcher * * *. Robinson, under contract with S. O. Crutcher, erected a house on this lot

in question, and the plaintiff below, having furnished lumber for the erection of this building,

and the same having been used in the building and not paid for, filed a materialman's lien for

the lumber so furnished * * *. Such a lien, of course, would be subject to all of the conditions

of the lease or conveyance under which the party held. Under the rule here adopted, it is

immaterial that the legal title to the land in question is in the United States. The United States

authorized the leasing of such land for townsite purposes, and by the terms of such a lease an

estate is created. The territory and the general government are bound by their contracts the

same as an individual, and it is only the estate held by the appellant that can be affected by

this lien.”

Appellants seek to distinguish Crutcher v. Block by referring to a provision in that

particular lease for the removal of the buildings upon the termination of the lease and because

reference therein was made to the fact that neither the government nor the territory could be

affected to their detriment by the enforcement of this lien because of the provision for

removal of buildings, nevertheless, since judgment of lien foreclosure is not only against the

buildings but the entire leasehold estate, we fail to see how that distinction is valid and

controlling.

Appellants are unduly concerned over any action which might uphold the primary

judgment of lien foreclosure in which the United States of America would be ��


compelled against its consent to accept an unwanted tenant, such as a purchaser upon

foreclosure sale and assert that such a sale without the consent of the United States of

America or its presence would defeat the mechanics' lien law since it would be impossible to

secure a purchaser who would pay anything of value for the sole right of litigating its claim as

a successor lessee to properties owned by the United States of America.

Not only does sec. 3737, N.C.L.1929, provide for foreclosure of a leasee's interest but all

the authorities hold that the lien merely attaches to the lessee's interest subject to the

paramount title of the owner in fee. Whether the party foreclosing the lien may possibly be

buying a lawsuit should not be the concern of the appellants. “If it cannot be sold because it is

of no value, or if the plaintiff chooses to bid it in at his own risk, he alone has the right to

complain. But the purchaser under a legal sale, requires all the rights, whatever they are, the

entire estate, whatever it is, which the defendant has in the premises, to just the same extent

that he would by a voluntary purchase from the party * * *.” John Turney, Administrator, et

al., v. Edward B. Saunders, et al., 4 Scam. 527, 532, (Ill.). If there had been a provision

against assignment in the lease, or if there had been a provision for forfeiture of the lease in

the event a lien were levied against the property, the Government could have indicated its

desire to contract solely with Basic. But such provisions are not to be found in the

Basic-Standard lease and from that we may reasonably infer that the government was not

concerned with a lien foreclosure and its consequent substitution of another tenant.

[Headnotes 1, 2]

It is contended that by reason of the provisions of sec. 3737, N.C.L.1929, to the effect that

the land occupied by the structure “is also subject to the lien, if at the commencement of the

work, * * * the land belonged to the person who caused said building” to be constructed, �� >��


no lien could attach upon the leasehold interest of Basic since Standard, the party at whose

immediate instance the work was performed, had no interest in the land. We find no merit in

this contention. In the first place sec. 3737 goes on to provide: “[B]ut if such person owned

less than a fee simple estate in such land, then only his interest therein is subject to such lien.”

We may further point to sec. 3743, id., whereunder every building constructed upon any lands

with the knowledge of the owner or the person having or claiming any interest therein shall

be held to have been constructed at his instance, unless notice of nonresponsibility is given.

Basic certainly had knowledge of the construction contemplated if the Basic-Standard

agreement is to be given any effect whatsoever and therefore the buildings in law were

constructed at Basic's request and knowledge. Construing this section, this court said in

Gould v. Wise, 18 Nev. 253, 258, 3 P. 30, 31, “But the interest of the owner may be subjected

to lien claims, notwithstanding the labor and materials have not been furnished at his

instance, if, knowing that alterations or repairs are being made or are contemplated, he fail to

give notice that he will not be responsible therefor, as provided in section nine of the act.”

The primary judgment of lien foreclosure should therefore be affirmed.

Appeal No. 3884

[Headnote 3]

On February 17, 1955, the trial court entered an order for summary judgment which was

based upon the Basic-Standard agreement of May 1, 1953, wherein Standard agreed to

construct certain residential dwellings “* * * to be free and clear of any liens, claims, or

encumbrances whatsoever, except the lease” and which provided that Standard should

specifically perform that agreement by satisfaction and clearance of all liens and

encumbrances as determined in the foreclosure judgment prior to the foreclosure sale, or in

the event of ��


failure to render specific performance, a money judgment should be entered against Standard

for $29,077.22, the total amount of the liens, together with certain costs, interest from

February 11, 1954, and an attorneys' fee of twenty percent (20%) of the judgment.

Standard and Globe have asserted two grounds of invalidity of this particular summary

judgment: First, that it is based upon an invalid primary judgment; and, Second, that there has

been no violation of the Basic-Standard agreement because the improvements became the

property of the United States of America free and clear of any liens, and from that argue that

since governmental immunity attached to those improvements it would necessarily follow

that such improvements were received by the Lessor free and clear of any liens and therefore

there was no violation of the Basic-Standard agreement.

We see no logic in the argument that the governmental immunity can afford a defense

against Standard's violation of its contract with Basic. This contract was capable of being

either specifically enforced or its violation made subject to a money judgment. We are of the

opinion that this judgment should be affirmed.

Appeal No. 3886

On April 11, 1955, Standard obtained a summary judgment against Globe Indemnity

Company, which ordered Globe to satisfy the judgment against Standard to the extent of and

in the amount of $30,294.50, together with costs and interest from January 31, 1955. Globe

has appealed from that order.

[Headnote 4]

It first contends that the judgment against it is invalid because it is based upon two

previous invalid judgments. This contention falls in our affirmance of the judgments in Nos.

3875 and 3884. Globe next contends that Standard has no cause of action against it because

Basic is not named as a party in Globe's bond whereunder it �� "�#��"�� $�� "��"��2��.�� <


obligated itself only “to pay over, make good, and reimburse” to Standard all loss and damage

which Standard may sustain by reason of Long's default; that while the purchase order

agreement contemplated that Long, as builder, should keep Standard free of liens and

indemnify Standard against damage, there is no evidence that Standard was damaged and that

it in fact received full performance by Long of the latter's contract. There is neither precedent

nor logic in the contention that Basic's absence as a party from Globe's contract with Standard

can serve to release Globe from its obligation on Long's default. The contention ignores the

fact that Standard is under an immediate judgment either to clear the liens or pay the amount

thereof. It ignores, too, Long's agreement to keep Standard free of all liens incurred in the

performance of the contract and to indemnify Standard against any and all damages which

might result or occur during said performance. This is based on the further contention that

Basic, not a party to Globe's bond, is the only owner of an interest in the realty against which

a lien could be and was in fact enforced. The Basic-Standard agreement does not support this

contention. Under it Standard was granted, in addition to other benefits, (housing for its

employees, one third of the profits from the operation, etc.), equal rights to purchase through

an agent corporation, which would act exclusively for both Basic and Standard, and the right

to construct additional dwellings by being solely responsible for the cost. Assignment of the

agreement was provided for under strict terms and conditions. The agreement was recited to

supersede all previous agreements between Basic and Standard “as to the use and occupancy”

of the leased premises by Standard. Appellant Globe characterizes the Basic-Standard

agreement as merely an operating agreement without creation of any property interest in

Standard. Standard urges that the agreement does in fact create a lienable property interest in

it and one which may be the subject of lien foreclosure, citing the general rule found in 57?�;��+)'��8��.�2��


C.J.S. 512, Mechanics' Liens, sec. 17, p. 512, as follows: “Such a lien may also attach to the

interest of a sublessee, assignee, or other person holding under the lessee or to the interest of

the holder of the lease with an option to purchase.”

In Cary Hardware Company v. McCarty, 10 Colo. App. 200, 50 P. 744, 747, a somewhat

similar use and occupancy agreement was construed to hold that a mechanics' lien could

attach to the interest of a person holding under the lessee. The court said: “If, therefore, the

smelting company, at the time of the erection of the improvements in question, held

possession of the land upon which they were constructed under a lease, or by virtue of a

license, where its authority was coupled with an interest, then it was the owner of the land,

within the mechanic's lien act.

“There is no question but that Norton, the grantor of the smelting company, held under a

lease, although he was given the right to occupy the five acres of surface ground for a specific

purpose only, its use being restricted to the erection of ‘such buildings and machinery thereon

as may be necessary for treating said slag dump.' A critical examination of the contract

between Norton and Holden warrants the conclusion, in our opinion, that its legal effect was

to vest in Holden the same rights, as to the use and occupancy of the premises described in

the lease, as Norton himself had, subject only to its possible avoidance by the refusal of

Norton's grantors to ratify it, which, by the terms of the lease, they might have done. This

appears also to have been the intent and purpose of the parties, so far as we can gather from

the instrument itself. There is certainly ample ground to sustain this view, and in a case like

the present it is the duty of the court to so hold. The laborers and material men, who

contributed so largely to the improvement of the premises, adding great value thereto, by

erecting costly buildings and putting expensive machinery thereon, should not be defeated of

their right to a just compensation solely by a strained and �� $


technical construction of the instrument under which possession was held.” (Italics ours.)

[Headnote 5]

A fair appraisal of the Basic-Standard agreement would clearly show that the parties

intended that Standard should be granted the same rights to the use and occupancy of the

leased premises and that the agreement granted to Standard a proper lienable interest in the

realty now the subject of foreclosure. The summary judgment against Globe must also be

affirmed.

Appeal No. 3889

One question has been raised on the cross-appeal of Standard against Globe and concerns

the right of the trial court to limit the amount of costs, interest and attorney's fees to the penal

sum of $30,294.50. In this connection it will be noted that the combined total of principal,

interest and costs as of the date of the judgment, for which Standard became liable was the

sum of $31,081.63, and that in addition thereto attorney's fees as fixed by the trial court

amounted to $6,188.62. Not only were the attorney's fees in excess of the amount of the penal

sum but costs and interest exceeded the penal sum by $787.13.

[Headnote 6]

At one time neither costs nor interest were recoverable if they exceeded the penal sum but

that rule has been changed. 2 Sedgwick On Damages, sec. 678, p. 1389. As a result counsel

for Globe has conceded that it would be responsible for costs and interest even though such

amounts exceed the penal sum of the bond. This is in effect, pro tanto, a confession of error,

by reason whereof we need not pursue the matter further but simply modify the judgment so

as to include the principal sum of $29,077.22, costs in the sum of $138.45 and interest in the

sum of $1,865.96. That leaves the question of whether or not attorney's fees are recoverable.


Globe asserts that attorney's fees are strictly the creature of either statute or contract, cites

Dixon v. Second Judicial District Court, 44 Nev. 98, 190 P. 352, and says that since the bond

contains no provision for attorney's fees such fees cannot be recovered in the event they

exceed the penal sum and further that even if there was such a provision the penal sum would

necessarily limit the amount of recovery. It relies strongly upon Hartford Fire Insurance

Company v. Casey, 196 Mo. App. 291, 191 S.W. 1072, which holds that notwithstanding a

stipulation in a bond for the payment of attorney's fees, such fees although considered in the

nature of damages could not be recovered because the penal sum fixed the limit of liability

and that the obligee must stand the loss himself or look elsewhere.

Counsel for Standard, on the other hand, asserts that Hartford Fire Insurance Company v.

Casey, supra, represents the older and less realistic approach to the subject, argues that sec.

3746 N.C.L. 1929 5 which provides for attorney's fees in a lien foreclosure action should be

considered as a part of the bond, and counters with Hartford Accident and Indemnity

Company v. Casassa, 301 Mass. 246, 16 N.E.2d 860, which is cited in the pocket part

supplement to Volume 11 of Corpus Juris Secundum, Bonds, sec. 132, and which holds that

in an action upon an indemnity agreement the obligee is entitled to recover interest, costs and

legal expenses over and above the penal sum where there was such a provision therefor.

Authorities for or against the allowance or disallowance of attorney's fees when they

exceed the penal sum in a bond are indeed limited. Prior to the publication of the 1955

supplement to Volume 11 of Corpus Juris Secundum, however, there was no question in the

minds ��"�� ))�?��;��

____________________

5 Section 3746 N.C.L. 1929 provides: “The court may also allow, as part of the costs, the moneys paid for

filing and recording the lien and shall also allow to the prevailing party reasonable attorney's fees.”


of the encyclopedia writers that counsel fees could not be recovered, for it is said in 11

Corpus Juris Secundum sec. 132 p. 511, as follows: “Attorney's fees. A provision in a bond

further obligating the makers to pay attorney's fees in case of suit has been held not to enlarge

the measure of recovery beyond the penalty named.” (Citing Chesley v. Reinhardt,

Tex.Civ.App., 300 S.W. 973.)

Likewise there was no question that such fees could not be recovered when Hartford Fire

Insurance Company v. Casey, supra, reaffirmed the settled law of Missouri. Similarly there

was no question when the Supreme Court of California in Hartford Accident & Indemnity

Co. v. Industrial Accident Commission, 216 Cal. 40, 13 P.2d 699, 703, first construed a

stipulation for the payment of counsel fees to mean that such fees are recoverable, but only in

the event the combined amounts of the award and the attorney's fee do not exceed the penal

sum of the bond and then said: “‘Even where the bond stipulates that damages shall include

attorney's fees, under the rule that a surety on a bond is not liable beyond the penalty named

therein, the surety is not liable for attorney's fees in excess of the penalty named.' 50 Cor.Jur.,

p. 92, sec. 149. In the case of Hartford Fire Insurance Co. v. Casey, 196 Mo.App. 291, 191

S.W. 1072, 1076, the court ruled as follows: ‘The general rule has always been that plaintiff

cannot recover more than the penalty of the bond. Farrar v. Christy's Adm'rs. 24 Mo. 474;

State ex rel. v. Woodward, 8 Mo. 353; State ex rel. v. Sandusky, 46 Mo. 381; Board of

Education v. National Surety Co., 183 Mo. 166, 184, 82 S.W. 70; Showles v. Freeman, 81

Mo. 540. An attorney's fee is a part of the loss sustained by an obligee when compelled to sue

on a bond. In other words, it partakes of the nature of the damages sustained, and the

agreement to pay same makes it a part of such damages. But the bond does not provide for

protection against damages beyond the amount of the penalty. As to such damages in excess

of the penalty, the obligee must stand the loss �� "�


himself or at least look elsewhere than to the surety. Consequently when the attorney's fee,

made a part of the damages by a clause to that effect in the bond, forms a part of the excess

above the face of the bond, then the obligee must stand the loss of that, too, at least so far as

the surety is concerned.' ”

[Headnote 7]

Under our view the particular item of attorney's fees herein involved was the sum of

$6,188.62, which was awarded to the lien claimants pursuant to our statute and became as

much a part of the judgment as the principal sum itself and subject to the same limitation,

namely, the limit of the penal amount of the bond.

From the foregoing, the court's judgment in favor of Standard and against Globe in the

sum of $30,294.50, (the penal sum of the bond), must be modified so as to comprise the

principal sum of the liens in the sum of $29,077.22, costs in the sum of $138.45, and interest

in the sum of $1,865.96, (the last two items under respondent's confession of error), making

an aggregate of $31,081.63. As so modified, it should be affirmed.

IT IS, THEREFORE, ORDERED: The judgment in No. 3875 is affirmed with costs. The

judgment in No. 3884 is affirmed with costs. The judgment in No. 3886 is affirmed with

costs, subject to the modification of No. 3889, infra. In Standard's cross appeal against Globe,

No. 3889, the judgment against Globe in the sum of $30,294.50 is modified by increasing the

same to $31,081.63 and, as modified, is affirmed, with costs in favor of Standard.


(Merrill, C. J., being disqualified, the Governor designated Honorable Grant L. Bowen,

Judge of the Second Judicial District Court, to act in his place.)

____________

��72 Nev. 202, 202 (1956) State v. Corinblit��

THE STATE OF NEVADA, Appellant, v.

ALEXANDER CORINBLIT, Respondent.

No. 3894

June 19, 1956. 298 P.2d 470.

Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,

Department No. 3.

Prosecution for embezzlement. The lower court rendered judgment dismissing the case at

close of the state's evidence, and the state appealed and defendant moved to dismiss the

appeal. The Supreme Court, Merrill, C. J., held that taking case from jury and dismissing

prosecution at close of the state's evidence for failure to prove a material element of the crime

charged was error, in view of N.C.L.1929, sec. 11001, authorizing court to advise jury to

acquit defendant if court deems the evidence insufficient to warrant a conviction, but

providing that jury shall not be bound by such advice.

Upon motion to dismiss:

Motion denied.

Upon merits:

Declaration of error.

Harvey Dickerson, Attorney General; George M. Dickerson, District Attorney, Clark

County; Gordon L. Hawkins, Deputy District Attorney, Clark County, for Appellant.

Harry E. Claiborne, of Las Vegas, for Respondent.

1. Criminal Law. Statutes, expressly giving the state a right of appeal from final judgment in all criminal cases, but

providing that such appeal shall in no case stay or affect operation of a judgment in favor of defendant

disclosed legislative intent that Supreme Court should determine issue of law presented by appeal by the

state and render a decision thereon in order that an expression upon the law may be had in the public

interest, even though rights of the parties to such litigation cannot be affected by the appeal. N.C.L.1929,

secs. 11084, 11091.

2. Statutes. In construing a statute, it is legislative intent with which court is concerned.


3. Criminal Law. Appeal by state from judgment dismissing prosecution for embezzlement for failure to prove a material

element of crime charged would not be dismissed as moot, in view of legislative intent disclosed by statutes

giving state a right of appeal from final judgment in all criminal cases, but limiting the effectiveness of

such appeal. N.C.L.1929, secs. 11084, 11091.

4. Criminal Law. Taking case from jury at close of state's evidence and ordering prosecution dismissed for failure to prove

a material element of crime charged was error, in view of statute authorizing court to advise jury to acquit

defendant if court deems the evidence insufficient to warrant a conviction, but providing that jury shall not

be bound by such advice. N.C.L.1929, sec. 11001.

5. Criminal Law. Decision by Supreme Court to determine issue of law presented by appeal by state from judgment

dismissing criminal case at close of state's evidence did not imply any determination as to constitutionality

of legislation imposing upon Supreme Court advisory duties in moot criminal appeals, where such question

of constitutionality was not presented to court. N.C.L.1929, secs. 11084, 11091.

OPINION


This is an appeal taken by the state from judgment of the trial court dismissing an action

against the defendant for the crime of embezzlement.

The dismissal occurred during trial before a jury. After the prosecution had completed its

case the court took the case from the jury upon motion of counsel for the defendant and

ordered the case dismissed for failure of the state to prove a material element of the crime

charged. Upon this appeal the state contends that this action was in violation of sec. 11001,

N.C.L.1929, which provides: “If, at any time after the evidence on either side is closed, the

court deem the same insufficient to warrant a conviction, it may advise the jury to acquit the

defendant. But the jury shall not be bound by such advice, nor must the court for any cause

prevent the jury from giving a verdict, except as provided in sections 318, 319, and 320.”


Respondent opposes the appeal upon the merits and has also moved its dismissal, in each

instance upon the ground that the matter is moot.

By sec. 11091, N.C.L.1929, it is provided that with certain specific exceptions which do

not apply here “an appeal taken by the state shall in no case stay or affect the operation of a

judgment in favor of the defendant.” The state concedes that the defendant has already been

placed in jeopardy by the proceedings below and that under sec. 11091 he may not be retried

upon the charge involved.

The state contends, notwithstanding that the rights of the parties to this litigation cannot be

affected by this appeal, that this court should, nevertheless, proceed to determine the issue of

law which the appeal presents. It contends that since the state has expressly been given a right

of appeal from final judgment in all criminal cases (sec. 11084, N.C.L.1929), the legislature

in effect has expressed a desire that this court undertake to render a decision in all such cases

in order that an expression upon the law, in the public interest, might be had.

[Headnotes 1, 2]

We agree with that construction. State v. Dulaney, 87 Ark. 17, 112 S.W. 158, 15 Ann.Cas.

192; State v. Laughlin, 171 Ind. 66, 84 N.E. 756; See: City of Reno v. Second Judicial

District Court, 58 Nev. 325, 328, 78 P.2d 101; Note, 48 Am.St.Rep. 213. Accord: State v.

Van Valkenburg, 60 Ind. 302; State v. Ward, 75 Ia. 637, 36 N.W. 765; Com. v. Bruce, 79 Ky.

560, 3 Ky. Law Rep. 366; State v. Billups, 179 Miss. 352, 174 So. 50; State v. Granville, 45

Ohio St. 264, 12 N.E. 803; State v. Gray, 71 Okl. Cr. 309, 111 P.2d 514; State v. Hamilton,

80 Ore. 562, 157 P. 796; State v. Hows, 31 Utah 168, 87 P. 163; Territory v. Nelson, 2 Wyo.

346. While sec. 11091, N.C.L., limits the effectiveness of an appeal by the state it does not

limit or deny its right of appeal, but would seem expressly to recognize the right to exist. The

first ��


sentence of that section reads, “An appeal taken by the state shall in no case stay or affect the

operation of a judgment in favor of the defendant * * *.” We cannot but regard this as an

expression of legislative intent that an appeal may be taken by the state notwithstanding its

limited effectiveness. It is legislative intent and not wisdom with which we are here

concerned.

[Headnotes 3, 4]

The motion to dismiss is denied. Upon the issue presented for determination we hold that,

under sec. 11001, N.C.L.1929, the trial court was in error in taking the case from the jury.

People v. Roberts, 114 Cal. 67, 45 P. 1016.

[Headnote 5]

The question of the constitutionality of legislation imposing upon this court advisory

duties in moot criminal appeals has not been presented to this court. No implication of

determination upon that question is to be drawn from this decision.

As notice of our action, IT IS ORDERED that remittitur issue to the court below setting

forth our declaration of error.

Eather, J., concurs.

____________

Badt, J. (dissenting):

The question raised by the motion to dismiss the state's appeal is whether or not this court

should rule upon the asserted error of the trial court in dismissing an action against the

defendant for the crime of embezzlement, despite the fact that the question is moot; whether,

despite the fact that it is moot, we should rule upon the point raised, in the public interest and

for the guidance of future criminal trials in the district courts. I am of the opinion that the

appeal should be dismissed.

The majority opinion relies upon the provisions of ��


sec. 11084, N.C.L.1929, reading as follows: “The party aggrieved in a criminal action,

whether the party be the state or the defendant, may appeal as follows: * * * 2. To the

supreme court from a final judgment of the district court in all criminal cases. Also, from an

order of the district court allowing a demurrer or granting or refusing a new trial.” It further

asserts that the generality of the language in that section is emphasized by the language

contained in sec. 11091 to the effect that an appeal by the state shall not affect the operation

of a judgment in favor of the defendant except on appeals from orders sustaining a demurrer

to the indictment or granting a motion in arrest of judgment or granting a motion for new

trial. It asserts that the meaning of this language is that appeals may be taken from the

judgment, questioning intermediate rulings of the court, in which the judgment is in nowise

affected.

In rejecting this view I call attention to the following: Sections 11084, to and including

sec. 11105, are the sections comprising chapter 38, which governs appeals in criminal

actions. This chapter forms a part of the criminal practice act, which in itself contains 678

sections as passed by the legislature in 1911, written into the Revised Laws of 1912, and

subsequently into the Compiled Laws of 1929, subject to sundry amendments. Section 11084

must of course be construed in connection with other sections of the criminal practice act and

particularly chapter 38 governing appeals.

It will first be noted that the state may appeal only if it is an aggrieved party. One may

seriously question whether the state has been aggrieved when all it seeks is a clarification of

the law. An aggrieved person is one whose rights are in any respect concluded by the

judgment. Afriat v. Afriat, 61 Nev. 321, 117 P.2d 83, 119 P.2d 883. The state does not assert

that an essential element of the crime of embezzlement was not lacking in the case. It is not

aggrieved by the lack of a conviction of defendant, but complains of an erroneous dismissal

instead of the court's advising the jury to acquit.


Nor does sec. 11087 help the construction given by the majority opinion. It reads: “Upon

the appeal, any decision of the court in an intermediate order or proceeding, forming a part of

the record, may be reviewed.” This simply follows our general theory of practice in both civil

and criminal appeals. Intermediate orders and proceedings not specifically made appealable

by statute, may be reviewed only on appeal from the judgment.

Section 11096 gives appeals in criminal cases priority. This unquestionably is for the

purpose of avoiding delay in the final determination of criminal cases. It has no reasonable

application to any necessity for haste in determining abstract questions of criminal law.

Section 11097 forbids a reversal without argument, whether orally or upon written brief,

though the respondent fail to appear. It is quite patent that the respondent would never have

appeared in this appeal had it not been for the contention in the state's opening brief that the

state was entitled to a reversal and to a remand for a new trial. It was not until the oral

argument that the state conceded that in no event could respondent be subjected to another

trial.

Sections 11100 and 11101 in particular, however, limit the generality of the words of sec.

11084. They read as follows: “After hearing the appeal, the court shall give judgment without

regard to technical error or defect which does not affect the substantial rights of the parties.”

This refers of course to the parties to the litigation. No substantial right of either of the parties

can be affected by a decision or opinion whose sole purpose is to declare a matter of abstract

law for future guidance.

Section 11101 is entitled “Power of appellate court” and reads as follows: “The appellate

court may reverse, affirm, or modify the judgment appealed from, and may, if necessary or

proper, order a new trial.”

The state contends, and the majority of the court agree, that the power of the appellate

court is thus defined with relation only to appeals aimed at affecting ��%� ��


the judgment itself, and has no reference to the general right of the state to appeal “from a

final judgment of the district court in all criminal cases” as granted by sec. 11084. I cannot

agree with that view. If sec. 11084 must be read in connection with sec. 11101, as I think

must be conceded, then the latter section limits the power of the appellate court on appeal to

reversal, affirmance or modification of the judgment, with remand for new trial if necessary.

We may not add to sec. 11101, without judicial legislation, the additional power of rendering

opinions and decisions on moot questions of law, affecting neither the judgment nor any

substantial rights of the parties, for the purpose of clarifying the law for guidance of the

district courts in future cases. Whether such practice would be advisable, or whether, if

deemed advisable, and so enacted by the legislature, such administrative function would be

constitutional, is not for us to consider.

In State v. Pray, 30 Nev. 206, 94 P. 218, 220, Pray was convicted of receiving stolen

goods, fined $1,000 and entered into a stipulation with the district attorney that the fine

should be held pending appeal and, if a reversal was obtained, should be returned to him. This

court, on motion, dismissed Pray's appeal. It first found it unnecessary to pass on the question

whether a voluntary satisfaction of a judgment waives the right of appeal—there being

authorities both ways.

It should first be noted that this was not a state's appeal but an appeal by the defendant.

This court quotes 2 Cyc. 647 as follows: “‘Where an order appealed from is of such a nature

that its execution has left nothing upon which a judgment of reversal can operate, the appeal

will be dismissed, unless such right was specially reserved.' * * *.” It then proceeds: “The

Supreme Court of the United States in the case of Mills v. Green, 159 U.S. 651, 16 S.Ct. 132,

40 L.Ed. 293, said: ‘The duty of this court, as of every other judicial tribunal, is to decide

actual controversies by a judgment which can be carried into effect, and not to give opinions

upon moot ,��


questions or abstract propositions, or to declare principles or rules of law which cannot affect

the matter in issue in the case before it. It necessarily follows that when, pending an appeal

from the judgment of a lower court and without any fault of the defendant, an event occurs

which renders it impossible for this court, if it should decide the case in favor of the plaintiff,

to grant him any effectual relief whatever, the court will not proceed to a formal judgment,

but will dismiss the appeal.'”

Even under the declaratory judgment act under which we held that the door “was opened

to the ‘adjudication of innumerable complaints and controversies not theretofore capable of

judicial relief'” we made it clear that there must be, (1) a judiciable controversy, (2) between

persons whose interests are adverse, (3) that the parties seeking relief must have a legally

protectible interest and, (4) that the issue involved must be ripe for judicial determination.

Kress v. Corey, 65 Nev. 1, 189 P.2d 352, 364.

The highest authority in the land has emphasized the vice of hearing an appeal by the state

where the defendant has been freed from further prosecution. In United States v. Evans, 213

U.S. 297, 299, 29 S.Ct. 507, 508, 53 L.Ed. 803, an appeal by the United States, pursuant to

statute (subject to the provision that a verdict in favor of the defendant might not be set

aside), in quashing a writ of certiorari by reason of the construction of the act of Congress

involved, Mr. Chief Justice Fuller, speaking for the court, said, quoting Mr. Chief Justice

Shepard in the same case below, 28 App. D.C. 264: “‘The appellee in such a case, having

been freed from further prosecution by the verdict in his favor, has no interest in the question

that may be determined in the proceedings on appeal, and may not even appear. Nor can his

appearance be enforced. Without opposing argument, which is so important to the attainment

of a correct conclusion, the court is called upon to lay down rules that may be of vital interest

to persons who may hereafter be brought to trial. All such persons are entitled to be heard ��,��


on all questions affecting their rights, and it is a harsh rule that would bind them by decisions

made in what are practically “moot” cases, where opposing views have not been presented.'”

Conceding the right of the majority of the court to accord great weight to the generality of

the language of sec. 11084 and to the asserted implication arising out of the language of sec.

11091, it nonetheless appears clear to me from the purport of the other sections above

discussed that the most that can be said is that a state of confusion exists. If the legislature has

thus left the subject confused, then in my opinion we should, for a number of valid reasons,

refrain from resolving this confusion in the manner adopted by the majority of the court. It is

contrary to the uninterrupted rejection by this and virtually all other appellate courts of the

determination of moot and academic questions, the consistent application of such rule to

criminal as well as civil appeals, the contemplation of our statute that only an aggrieved party

may appeal, the actual spelling out of what this court may do in criminal appeals, the rule of

this court as enunciated in State v. Pray, supra.

There are practical, material and realistic reasons why (if at the best the sections of the

statute are in a state of confusion) the court's conclusion should not, in my opinion prevail.

On such appeals by the state it must be conceded that the respondent, the dismissed or

acquitted defendant, will not appear. We shall have an appeal argued by the appellant only.

See the characterization of such a situation in United States v. Evans, supra.

This court would then be compelled to initiate, pursue and carry to a conclusion its own

complete investigation of the law upon the question raised—possibly such a serious question

as the constitutionality of a statute. We are traditionally opposed to conducting such

independent search. See Colton v. Murphy, 71 Nev. 71, 279 P.2d 1036. We should be

confronted with the necessity of appointing amicus curiae and thus imposing upon ��


the leaders of the profession in this state arduous tasks without compensation. 1 I cannot feel

that the statutes in question were intended by the legislature to have such result.

One can envisage still another undesirable result of the ruling. Every time a district

attorney of some county in this state, personally offended by an acquittal or by conviction of a

lesser degree of offense than he had sought at the hands of the jury, who felt that the court

had erred in some ruling on evidence or in its giving or refusing to give some particular

instruction to the jury, could prosecute an appeal to this court—to what end?

We cannot resist a final comment which, though it may not indicate what action this court

should or should not take, is not without significance. In the eighty-odd years since the

criminal practice act has been on the books, there is no record in this court that any attorney

general of this state or any district attorney in any county in this state ever prosecuted an

appeal to this court under the theory here advanced. It is of greater significance that in every

criminal appeal decided by this court it has confined itself to the exercise of the power limited

by sec. 11101 in that it has reversed the judgment appealed from, affirmed it or modified it,

and has in proper cases ordered a new trial. It has never on such appeal made a “declaration

of error.”

It is said that this court in City of Reno v. District Court, 58 Nev. 325, 78 P.2d 101, 102,

held (though concededly as dictum) that the deciding of moot cases by this court “is the effect

intended by [the criminal appeal] statutes.” The statement there appearing was in my opinion

not even dictum. Properly paraphrased in order more correctly to state its meaning, the

statement of this court was as follows: “Even conceding for the sake �� ,��.��

____________________

1 While the legislature has indeed provided for the appointment and payment of counsel for indigent

defendants, at the expense of the county, it has made no provisions permitting us to appoint and pay amicus

curiae in the case of appeals such as the present one.


of argument that the effect of the appeal statutes is to permit this court to determine a moot

question upon the state's appeal, they have no application here because this is not an appeal

but an original proceeding in certiorari.”

I would dismiss the appeal as moot and as not authorized by our statute.

____________


MILTON G. SMILANICH, Appellant, v. BONANZA

AIR LINES, Respondent.

No. 3911

June 21, 1956. 298 P.2d 819.


Department No. 2.

Civil action. Summary judgment was entered against the defendant in the lower court and

the defendant appealed. The Supreme Court, Eather, J., held that the evidence did not

establish an abuse of discretion by the district judge in denying the defendant's motion for

relief from the summary judgment on the ground of mistake.

Affirmed.

See also 72 Nev. 10, 291 P.2d 1053.

(Rehearing denied July 11, 1956.)


Vargas, Dillon, Bartlett & Garroway, of Reno, for Respondent.

Judgment.

Evidence did not warrant granting relief from summary judgment for mistake, inadvertence or excusable

neglect on the ground of mistake resulting when no notice had been given of an intent to file an amended

complaint and no court order had been obtained where mistake seemingly had its origin in the appellant.

Rules of Civil Procedure, Rule 60(b).


OPINION


Summary judgment was entered against appellant in the district court. Thereafter, he

moved for relief from that judgment, basing his motion upon Rule 60(b) N.R.C.P., which

permits relief on the ground of mistake, inadvertence, excusable neglect, fraud or other reason

stated in the rule. That motion, after full argument in the court below, was denied. Thereupon,

appellant appealed from that denial and also from the summary judgment. We have already

dismissed the appeal from the judgment as not timely filed. (Opinion dated January 10, 1956,

72 Nev. 10, 291 P.2d 1053.)

The sole question now before us is whether or not the district judge abused his discretion

in denying appellant's motion for relief. We determine that he did not.

Some confusion and misunderstanding seem to have crept into the proceedings in the

lower court. The motion by respondent for summary judgment was orally argued and

respondent submitted a written brief; appellant had leave to file an answering brief. By

writing dated March 14, 1956, served on respondent March 16, (1956) and filed, appellant

submitted the motion for summary judgment without an answering brief. On or about that

date, appellant's counsel discussed the matter ex parte with the court and the court made an

order on March 18 purporting to grant a motion to dismiss the complaint (assuming the

existence of such motion, although none existed) and allowing the filing of an amended

complaint.

Appellant thereupon filed an amended complaint and mailed a copy of it to counsel for

respondent but without giving any notice of the order permitting the filing thereof or the order

dismissing the original complaint. Thereupon, respondent moved to strike the amended

complaint on the grounds that the motion for summary judgment had been submitted and,

also, because no ��


notice had been given of intention to file an amended complaint and that no court order had

been obtained.

When counsel for respondent appeared for argument at the time stated in that motion, he

learned for the first time of the order dismissing the complaint and allowing the filing of an

amended complaint. Respondent's counsel then called to the court's attention the fact that

there was no motion to dismiss the complaint but that the motion before the court, still

undetermined, was respondent's motion for summary judgment. Whereupon the court revoked

the order dismissing the complaint and permitting an amended complaint and it then granted

summary judgment on the original motion which had been argued and submitted.

At the argument on the motion for relief, the district judge informed counsel that he had

been under the impression that there was before him a motion to dismiss. Counsel for

appellant frankly admits that the ex parte discussion with the court was on that basis. As there

is a great difference between a motion to dismiss and a motion for summary judgment, the

mistake seems to have had its origin, or at least some sustenance, from appellant.

The affidavits and arguments presented to the district judge on the motion for relief were

ample to place the entire factual and legal situation before the court and we are satisfied that

appellant had full opportunity to present his contentions.

Appellant's main argument to us in connection with the motion for relief is that the court

erred in entering summary judgment. As we have dismissed the appeal from the judgment,

that matter is not before us. However, the opening brief of appellant informs us that upon the

argument of the motion for relief “the court further stated that notwithstanding all the facts

and circumstances, even considering the amended complaint on file in the action and the copy

of the airline's pilot ��3� ��


contract annexed thereto, the appellant had no cause of action and that summary judgment as

granted was proper and would not be set aside.”



____________

��72 Nev. 215, 215 (1956) Fry v. O'Keefe��

ROBERT C. FRY and FRANCES FRY, His Wife, Appellants, v. JAMES LEO O'KEEFE

And LOTTIE O'KEEFE, His Wife, Respondents.

No. 3780

July 6, 1956. 299 P.2d 202.


Department No. 2.

Suit to dissolve a joint venture involving a proper division of the venture's capital. From a

judgment for plaintiffs, the defendant appealed. The Supreme Court, Eather, J., held that the

evidence sustained the construction of the agreement by the trial court that the capital

advanced by the plaintiff was first to be repaid.

Affirmed.

(Rehearing denied October 9, 1956.)

Guild, Busey & Guild, of Reno, for Appellants.

Bert Goldwater, of Reno, for Respondents.

1. Joint Adventures. In suit to dissolve a joint venture for the construction of an apartment building, where the venture proved

unprofitable and a substantial loss was sustained, evidence established that under the agreement the capital

advanced by plaintiff was first to be repaid.

2. Appeal and Error. In suit to dissolve a joint venture, striking of testimony of defendant insofar as tending to vary the terms

of the original �� %� �� "�� "��.��

��72 Nev. 215, 216 (1956) Fry v. O'Keefe��

written contract was not prejudicial where the testimony offered did not modify the plaintiff's right to prior

reimbursement.

3. Joint Adventures. In suit to dissolve a joint venture for construction of an apartment building which proved unprofitable and

wherein substantial loss was sustained, evidence did not establish that plaintiff's prior right to repayment of

capital contributed was to attach only in case of private sale of the property or division of the operating

profits and that it was never intended to apply to a forced sale.

OPINION


This is a suit to dissolve a joint venture. Involved upon this appeal is a question of proper

division of the venture's capital. The venture proved unprofitable and a substantial loss was

sustained. The trial court held that, under the agreement between the parties, the capital

advanced by plaintiff O'Keefe was first to be repaid. Since the proceeds available after

discharge of debts left nothing to go to defendant Fry the court awarded the full balance to

O'Keefe. Fry has taken this appeal. We agree with the construction of the trial court and upon

this ground the judgment must be sustained.

[Headnote 1]

The written contract was drawn by Fry. O'Keefe was to advance capital in the sum of

$36,000. Fry was to advance capital in the sum of $4,300. With these sums and with services

to be performed by Fry in his capacity as contractor and construction engineer the parties

were to engage in the venture of constructing an apartment building. The agreement provided

that, “Upon completion of said building project it is mutually agreed that all the above

property and buildings shall be put on the market for sale, and upon sale of same, it is agreed

that Mr. and Mrs. J. O'Keefe shall receive their total investment of $36,000 and Mr. and Mrs.

Robert C. Fry shall ��/4��

��72 Nev. 215, 217 (1956) Fry v. O'Keefe��

receive their investment of $4,300, and any and all profits thereafter are to be divided equally

among the joint owners.”

The meaning and intent of the parties as expressed by this provision is clear from the

testimony of Fry. Upon cross examination by O'Keefe upon his case in chief, Fry as an

adverse witness testified: “Q. Then as I understand it, under the terms of that agreement, Mr.

O'Keefe was to get his money back either on a loan or upon sale so that he would be free and

clear and would share in the profits? A. I believe Mr. O'Keefe will agree I told him under any

circumstances whether we kept the property for income or whether we sold it he was to

receive his money back first that he put in and I would receive the balance.” This testimony

was admitted without objection. It stands uncontroverted, clearly establishing the investment

of the O'Keefes as preferred and prior in point of reimbursement.

[Headnote 2]

The original plans of the parties were later modified. The changes involved substantial

additional cost which was raised by additional capital advanced by O'Keefe and $20,000 by

third parties. The changes also required substantial additional constructional services from

Fry, and substantial use of his construction equipment. Testimony by Fry as to the

modification of the original agreement was at first admitted by the trial court over the

objection of O'Keefe. Later, upon O'Keefe's motion, it was stricken by the court insofar as it

tended to vary the terms of the original written contract. This action is assigned as error by

Fry.

The testimony offered, however, in no respect tended to eliminate or modify O'Keefe's

right to prior reimbursement. Even under the oral contract he was first to be reimbursed. The

only material difference is that the parties now contemplated holding the property for income

and reimbursing themselves (first O'Keefe and then Fry), out of income before sale. Upon

sale the �� ,��"� ��

��72 Nev. 215, 218 (1956) Fry v. O'Keefe��

profits were to be equally divided. Even if the action of the trial court in this respect was error

it was without prejudice to Fry for the right of priority enjoyed by O'Keefe remained

unchanged.

Upon completion of the building differences arose between the parties. This action for

dissolution was brought by O'Keefe. It was then clear to Fry that, in the light of their

differences the venture could not continue to operate successfully. Fry agreed to dissolution.

He stipulated that the property be sold. It was sold at public sale with resulting capital loss.

[Headnote 3]

Fry now contends that the original written contract, together with its oral modification,

demonstrates that the priority right of O'Keefe was to attach only in case of private sale or

division of operating profits; that it was never intended to apply to forced sale. It may well be

true that the parties optimistically contemplated only a successful venture and did not give

thought to the question of division in case a loss was sustained. The fact of the prior right of

reimbursement remains, however, and in the words of Fry himself it was to apply whether the

property was kept for income or was sold.



____________

��72 Nev. 219, 219 (1956) Reno Realty v. Hornstein��

RENO REALTY AND INVESTMENT CO., a corporation, Appellant, v. JOSEPH

HORNSTEIN, Respondent.

No. 3926

July 16, 1956. 301 P.2d 1051.


Department No. 3.

Lessor's suit for judgment declaring its right to refuse to extend term of lease. From a

judgment favorable to the lessee, the lessor appealed. The Supreme Court, Merrill, C. J., held

that lessee's violation of tax commission regulation prohibiting taking of bets by mail

justified lessor's refusal to extend term of lease, where lessee had agreed not to conduct on

premises any business prohibited by state laws and where lessee had been granted right to

extension “in consideration for the full, faithful, and complete performance” of lease

agreement.

Reversed.

Springmeyer & Thompson, of Reno, for Appellant.

Sinai & Sinai, of Reno, for Respondent.

1. Landlord and Tenant. Lessee's violation of tax commission regulation prohibiting taking of bets by mail justified lessor's refusal

to extend term of lease, where lessee had agreed not to conduct on premises any business prohibited by

state laws and where lessee had been granted right to extension “in consideration for the full, faithful, and

complete performance” of lease agreement.

2. Landlord and Tenant. That lessee had not personally committed acts constituting breach of lease would not prevent lessor from

refusing to extend lease, where lessee was answerable for conduct of those who committed acts which

constituted breach of lease.

3. Landlord and Tenant. Acceptance of rent after knowledge of breach constitutes waiver of lessor's right to terminate lease.

4. Estoppel. A waiver is intentional relinquishment of known right.


5. Landlord and Tenant. Lessor's acceptance of rent after knowledge of breach of lease did not constitute waiver of right to refuse

extension of term of lease where lessee's right to such extension was dependent upon faithful performance

of lease agreement.

6. Declaratory Judgment. In lessor's action for judgment declaring his right to refuse to extend term of lease because of lessee's

failure to faithfully perform, evidence would not sustain lessee's contention that he had expended large

sums in reliance upon lessor's failure to forfeit lease after breach.

OPINION


This is an action for declaratory relief brought by appellant-lessor to establish his right to

refuse to extend the term of respondent's lease. The trial court, sitting without jury, held for

the lessee, and lessor has taken this appeal.

The premises are located in the city of Reno. The lease was executed in 1950 for a term of

five years from January, 1951. The lessee was granted the right to extend the term for an

additional five years “in consideration for the full, faithful, and complete performance by

lessee of each, every and all of the terms and provisions of this lease agreement by said lessee

to be kept and performed.”

Among the lease provisions was the following: “Lessee further agrees that he will not

violate nor permit any person to violate any city ordinance of the city of Reno or any county,

state or federal law on the said premises whereby said premises may or might be subject to

abatement nor to conduct on said premises any business which is forbidden or prohibited by

the ordinances of the city of Reno or prohibited by the laws of the state of Nevada or the

United States of America.”

Upon the premises lessee, under the name of Nevada Turf Club, conducted a gambling

business in the course ��


of which he took bets on horse races and other sports events. The business was licensed and

regulated under the authority of the Nevada Gambling Control Act, NCL 1931-1941 Supp.,

Secs. 3302 et seq., and under the supervision of the Nevada Tax Commission.

In 1952 the tax commission adopted a regulation governing the conduct of such gambling

transactions which provided in part, “All bets accepted by race horse books or sports pools

must be on an over-the-counter basis * * *. No bets shall be placed by telephone, telegraph,

messenger or in any manner other than over the counter by the person making the bet.”

During October, November and December, 1954, an investigator of the Nevada Tax

Commission under an assumed name, from San Francisco, engaged in an interstate course of

betting on football pools with the Nevada Turf Club contrary to regulation. On six occasions

by mail he received from the club cards by means of which bets could be placed. On six

occasions he placed bets by money order through the mail, which sums were duly deposited

by the Nevada Turf Club in its Reno bank account. On two occasions successful bets were

paid by the Nevada Turf Club by money order through the mail. It does not appear that any

bets offered by the investigator were rejected by the club.

Lessor became aware of the tax commission investigation through a news article published

in February, 1955. Later that month lessee voluntarily abandoned his gambling license and

confined himself to a bar business. No further proceedings were taken by the tax commission.

This action was brought the following month. In the interim, rent for March, 1955 had been

accepted by the lessor. Lessor by its action did not seek forfeiture of the lease for its

remaining eight months but sought to establish its right to refuse to renew the lease for the

extended five-year term upon the ground that lessee had failed to make full, faithful and

complete performance of the lease provisions.


The trial court decreed that lessee's right to renew the lease had not been lost. Upon three

grounds lessee supports the trial court's action.

[Headnote 1]

First. The trial court in its conclusions of law held that the unlawful acts were “trivial,

technical, and in no way prejudicial to plaintiff or to said demised premises.” Lessee contends

that those acts may not, therefore, be asserted to demonstrate lack of full and faithful

performance. Without deciding the point, we may concede that lessee's position would be

well taken were the court's holding to be permitted to stand. In Title Insurance and Guarantee

Co. v. Hart, 9 C.C.A., 160 F.2d 961, 969, 970, the court, in holding certain violations to be

“relatively minor infractions,” stated, “It is not reasonable in human experience to expect that

there could have been full, exact, strict, complete and perfect compliance with all of the

covenants * * *. At certain times due to the impossibility of human perfection some of the

Mine Safety Orders were bound to be violated.” Realistically it may be the fact that isolated

and technical instances of violation of the regulations of the tax commission can hardly be

avoided in an operation of any magnitude. Such was not the case here. While the proof of

violation was through a very few improper transactions as against many thousands of

unexamined and unquestioned transactions, still those few were sufficient to establish beyond

coincidence that the establishment was actually engaged in an unlawful operation. Had lessee

not voluntarily surrendered his gaming license on the premises abatement may well have

resulted.

Lessee contends that the tax commission has itself demonstrated that it regarded the

incident as trivial. It did not proceed further against the lessee. Instead it has granted him a

gaming license at another location and thus appeal's to have placed its stamp of approval

upon him. We have no way of knowing the considerations which moved the tax commission

in taking its ��%� ��


action or of judging the significance of such action, and do not propose to speculate upon

such matters. With due regard to the public interest we cannot hold as law that operation

contrary to such a regulation as the one here involved is but a trivial or technical violation.

Without a more unequivocal expression of intent we are not willing to construe the action of

the tax commission as a ruling to that effect. Under the proof the court's conclusion that the

violation was trivial and technical must be held to be error. The violation amounted to a

substantial breach of the lease.

[Headnote 2]

Second. The court found (and apparently regarded as significant) that lessee had not

personally committed the acts which constituted breach of the lease and had no actual

knowledge of their commission. Lessee contends that this establishes as matter of law that he

was not guilty of breach.

This might well be the case had the unlawful acts been committed by a stranger: one for

whose conduct, unknown to lessee, he was not responsible. Here the acts could only have

been committed by someone in authority on behalf of and for the benefit of the lessee's

business operation. Lessee testified that four persons were authorized to open mail and two or

three were authorized to make bank deposits. At least one was apparently authorized to

purchase money orders for the payment of bets. One may not entrust to others the operation

of his business and the fulfillment of his contractual obligations without accepting civil

responsibility for their acts in his behalf. Lessee cannot escape responsibility for breach of

lease by a simple denial of actual personal knowledge that such breach had been committed

by those for whose conduct he was answerable.

[Headnotes 3-6]

Third. The trial court concluded that any right of refusal to extend the term of the lease had

been waived by appellant by the acceptance of rent after knowledge ��


of the breach. Acceptance of rent after knowledge of breach is well recognized to constitute a

waiver of the lessor's right to terminate the lease. Sharp v. Twin Lakes Corporation, 71 Nev.

162, 283 P.2d 611. Where the lease grants an unconditional right to the lessee at his election

to renew the lease upon completion of its original term, such a waiver attaches to the

extended term. The right of renewal is regarded as part of the term of the lease itself.

Kaliterna v. Wright, 94 Cal.App. 2d 926, 212 P.2d 32; Saxeney v. Panis, 239 Mass. 207, 131

N.E. 331; Hotel Allen Company v. Allen's Estate, 117 Minn. 333, 135 N.W. 812; Selden v.

Camp, 95 Va. 527, 28 S.E. 877; Henry v. Bruhn & Henry, 114 Wash. 180, 195 P. 20.

However, the situation is different where the right to renew the lease is expressly made

subject to the condition precedent that the lessee shall have performed all the terms of the

lease. As stated by Kay, J., in Bastin v. Bidwell, 18 Ch. Div. 238, 249, “Supposing there was

a waiver of the right of re-entry, it does not seem to me at all to follow that the precedent

condition would be waived or affected in the least degree. The condition precedent is this: If

you have performed your covenants altogether, then, that being the precedent condition, you

shall be entitled to have the renewed lease; if you have not performed your covenants it does

not matter that the lessor may have waived his right of forfeiting the lease; the condition

precedent has not been performed, and if the precedent condition has not been performed, the

right which depends upon it does not arise at all.”

This distinction was expressly recognized in Saxeney v. Panis, supra, and has resulted in

holdings for the lessor against waiver in Gadsden Bowling Center v. Frank, 249 Ala. 435, 31

S.2d 648, 172 A.L.R. 1430; and Jones v. Epstein, 134 Ark. 505, 204 S.W. 217. See also Swift

v. Occidental Mining & Petroleum Company, 141 Cal. 161, 74 P. 700; Skillman v. Lynch, 74

S.D. 212, 50 N.W. 2d 641.


The conditions precedent may themselves be waived by the lessor or he may by his

conduct become estopped to assert them. Thus we frequently find cases holding a lease

subject to renewal where the strict performance of acts required by the lease has itself been

waived by acceptance of lesser performance, Garnhart v. Finney, 40 Mo. 449, 93 Am.Dec.

303; Montant v. Moore, 135 App.Div. 334, 120 N.Y. Supp. 556; Spotts v. Westlake Garage

Co., 116 Wash. 255, 199 P. 294; Kaliterna v. Wright, supra; or of tardy performance, Seldon

v. Camp, supra; Lyons v. Osborn, 45 Kans. 650, 26 P. 31; or by acquiescence of the lessor in

the breach over a substantial period of the lease term, Armstrong v. Shapiro, 119 Misc. 522,

196 N.Y. Supp. 630, (reversed on other grounds, 207 App. Div. 304, 202 N.Y. Supp. 305);

King-Blair Co. v. Schloss, 253 Mich. 243, 234 N.W. 481; or by permitting substantial

investment by the lessee in reliance upon such acquiescence, see Title Insurance & Guaranty

Company v. Hart, supra.

However, the distinction must be observed between a waiver of the right to terminate the

lease and a waiver of the conditions precedent to the lessee's right of renewal. A waiver is the

intentional relinquishment of a known right. Santino v. Glens Falls Insurance Company, 54

Nev. 127, 139, 9 P.2d 1,000. If intention is to be implied from conduct, the conduct should

speak the intention clearly. Acceptance of rent clearly speaks an intent not to terminate a

lease. Finch v. Underwood, 2 Ch.Div. 310, 316, is one of the earliest cases dealing with the

distinction between waivers with which we are concerned. There Mellish, L. J., points out

that the waiver of the right to terminate the lease resulting from acceptance of rent is based

upon the proposition that “having received rent after notice of it [the lessor] is precluded from

taking advantage of the forfeiture because it is a contradiction in terms to treat a man as a

tenant and then treat him as a trespasser.” This court in Sharp v. Twin Lakes Corporation,

supra, stated, “[The lessor's] conduct was consistent only with an ��


election to hold the lessee to its obligations under the lease. Clearly he has by acceptance of

rentals under these circumstances affirmed the existence of the lease and recognized the

lessee as his tenant. His right to claim forfeiture has thus been waived.”

Likewise the clear acceptance of or acquiescence in performance speaks the intention to

accept or acquiesce and thus release from any obligation to perform more fully. But it cannot

be said that acceptance of rentals or other performance speaks any intent to release a lessee

from an unrelated promise or condition. As stated in Swift v. Occidental Mining & Petroleum

Company, supra, “the neglect of the landlord to strictly enforce his right of forfeiture for

breach of condition does not entitle the tenant to a renewal when such renewal is dependent

upon faithful performance of conditions. There is no finding and no evidence to warrant a

finding that plaintiffs consented to any cessation of the work of exploration and development

and their mere failure to enforce a forfeiture for the cessation which occurred in 1894-1895

and 1898-1899 was not a waiver of performance of the conditions upon which they had

bound themselves to renew the lease.”

In the case at bar the right of renewal was expressly made subject to the condition

precedent of “the full, faithful, and complete performance by lessee of each, every and all of

the terms and provisions” of the lease. Considering the lease provisions, this is equivalent to

an express condition precedent that lessee's business enterprise be lawfully conducted. In

absence of acquiescence, acceptance of rent cannot be said to amount to a waiver of such a

condition.

Lessee contends that here there was acquiescence. He points out that no steps were taken

by lessor in protest against the unlawful acts until those acts had ceased and lessee voluntarily

had abandoned his gaming license. This cannot be said to constitute acquiescence. Lessor

never, by word or action, with knowledge that the acts were being carried on, consented to

them. The most that ��


might be said is that, upon learning of the unlawful acts, it refrained from enforcing its rights

to the fullest in that it did not enforce forfeiture. In the absence of reliance and change of

position on the part of the lessee such leniency on the part of the lessor cannot be said to

constitute waiver of performance.

Lessee contends that there was change of position. The trial court found that lessor, with

knowledge of the breach, “caused defendant [lessee] to expend large sums of money in the

improvement of said premises * * * in reliance upon defendant's belief that plaintiff

recognized defendant's right to extend said lease.” The record does not support this finding.

The improvements were made during the term of an earlier lease and were not made in

reliance upon the fact that lessor apparently was willing to overlook lessee's violation.

Lessee emphasizes that at the time lessor asserted its right to deny a renewal of lease

everything was operating properly; no one had suffered by any lease violation; order was fully

restored and the tax commission apparently satisfied. The breach, he asserts, was simply

water over the dam to no one's detriment. However, it is not for us to judge the desirability of

the lessee as tenant for a renewed term in the light of his past history as tenant. Under the

facts of this case that right is one expressly and specifically reserved to the lessor by virtue of

contract. We may not question the manner in which it chooses to exercise such right, nor

inquire as to its true motive in such rightful exercise.

Reversed and remanded with instructions that judgment in accordance with this opinion be

entered for the plaintiff.


(Badt, J., participated in the deliberations and concurs in the result, but was absent at the

time of filing of the opinion.)

____________

��72 Nev. 228, 228 (1956) State Ex Rel. Quimby v. City of Reno��

THE STATE OF NEVADA Upon the Relation of GEORGE D. QUIMBY and CLARA

QUIMBY, Appellants, v. CITY OF RENO, a Municipal Corporation, FRANCIS R. SMITH,

Mayor, and WILLIAM A. LIGON, CHARLES E. COWEN, EDWIN S. SEMENZA,

THOMAS H. HARVEY, JOHN T. MYLES and MARSHALL GUISTI, Councilmen of Said

City, Respondents.

No. 3924

July 16, 1956. 301 P.2d 1050.

Appeal from the Second Judicial District Court, Washoe County; Merwyn H. Brown,

Presiding Judge, Department No. 2.

Action in quo warranto challenging propriety of municipal action annexing certain

territory to the city of Reno. The trial judge held the annexation proper and relators appealed.

Respondents moved to dismiss the appeal. The Supreme Court held that where territory in

question was validly annexed to city by legislature approximately two years after city's action

of annexation, although question of the validity of city's action of annexation was moot

insofar as concerned rights accruing after such legislative action, as to rights dependent upon

validity of the city's action of annexation and accruing during the period between city's

annexation and legislation effecting the annexation, the appeal remained effective.

See also 71 Nev. 144, 282 P.2d 1071; 73 Nev. [136], 310 P.2d 850.

On motion to dismiss appeal, motion denied.

R. K. Wittenberg, of Reno, and Harvey Dickerson, Attorney General, for Appellants.

Samuel Francovich, City Attorney of Reno; Bruce D. Roberts, Assistant City Attorney, of

Reno and Sidney W. Robinson, of Reno, for Respondents.


Municipal Corporations.

Where certain territory was validly annexed to city by legislature approximately two years after city's

action of annexation, although question of the validity of city's action of annexation was moot insofar as

rights accruing after such legislative action, as to rights dependent upon validity of the city's action of

annexation and accruing during the period between city's annexation and legislation effecting the

annexation, the appeal remained effective.

OPINION

On Motion To Dismiss Appeal

Per Curiam:

This is a motion to dismiss the present proceedings upon the ground that the issues have

become moot. The action is one in quo warranto challenging the propriety of municipal

action annexing certain territory to the city of Reno. The matter is before this court on appeal

from judgment of the trial court holding the annexation to be proper.

The city's action was taken April 12, 1954. On February 24, 1956 the state legislature, by

statute immediately effective, accomplished the identical annexation. By virtue of the

legislative action respondent contends that the validity of the city's action is now without

legal significance and that the appeal should be dismissed.

The public concern in the annexation is twofold. Of major importance is the question

whether the territory involved has properly been annexed and is now a part of the city of

Reno. Of this there can be no question. The legislature acted with authority. Upon this motion

no contention is made that the legislative action, for any reason, was improper or invalid. The

public concern upon this question may, therefore, be set to rest. The territory involved is now

and has since February 24, 1956 been lawfully annexed to the city of Reno.

There remains, however, of minor public importance, ��,�� "�� "��&��)'��)*+4�


the question whether the territory involved was a part of the city of Reno from April 12, 1954,

the date of the city's action, to February 24, 1956, the effective date of the legislative action.

Certain rights against the city are asserted to exist, the existence of which is dependent upon

such a determination.

It is asserted (and supported by documentary proof in the form of canceled checks) that

city taxes and license fees payable during the period in question were demanded by the city of

residents of the area and were paid by certain of those residents under protest. Unless for

some reason such protests were or have become ineffective, it may not be said that the

validity of the city's annexation proceedings is wholly without legal significance. The issues

involved upon this appeal continue to bear upon rights asserted to exist against the city and to

that limited extent such questions have not been rendered moot by legislative act.

As to rights dependent upon the validity of the legislative action the present appeal is no

longer effective. As to rights remaining, dependent upon the validity of the city's action of

annexation, the appeal remains effective. The motion to dismiss, accordingly, is denied.

Merrill, C.J.,

Eather, J.

(Badt, J., participated in the deliberations and concurs in the result, but was absent at the


____________


HENRY McCLEARY TIMBER COMPANY, Appellant, v. C. A. SEWELL and ORENE H.

SEWELL, His Wife, Respondents.

No. 3912

July 17, 1956. 301 P.2d 1047.

Appeal from judgment of the Sixth Judicial District Court, Humboldt County; Frank B.

Gregory, Presiding Judge.

Action for balance due plaintiffs for caring for defendant corporation's cattle under an

agistment agreement. Defendant filed a counterclaim for loss of some of cattle because of

plaintiff's alleged wrongful acts and neglect. From a judgment for plaintiffs and against

defendant on the counterclaim, the Supreme Court, Merrill, C. J., held that evidence

supported trial court's determination that the agreement, providing for measurement of hay

fed to cattle by plaintiffs according to “so-called government rule,” referred to quartermaster

rule, not federal agriculture department's leaflet proposing new rules for measurement of hay,

and that court properly received evidence of local custom as to method of computing weight

of hay in conjunction with determination of volume by means of quartermaster rule, in

absence of evidence that it extended to determination of weight from volume.

Judgment affirmed.

See also 72 Nev. 7, 292 P.2d 197.

James A. Callahan, of Winnemucca, and Anderson, Kaufman & Anderson, of Boise,

Idaho, for Appellant.

Orville R. Wilson, of Elko, for Respondents.

1. Animals. In action for balance due plaintiffs for caring for defendant corporation's cattle under agistment

agreement, evidence supported district court's determination that such agreement, providing for

measurement of hay fed to cattle according to “so-called government rule,” referred to quartermaster rule

for measurement of hay in stacks to determine its volume, not � �� .��


federal agriculture department's leaflet proposing new rules for measurement of both volume and weight,

and court properly received evidence of local custom as to method of computing weight of hay in

conjunction with determination of volume thereof by quartermaster rule in absence of evidence that such

rule extended to determination of weight from volume.

2. Animals. In action for balance due plaintiffs for caring for defendant corporation's cattle under agistment

agreement, evidence supported trial court's conclusion that loss of some cattle, for which defendant

counterclaimed, resulted from drifting or natural causes because of their weakened condition when

delivered to plaintiffs, rather than acts and neglect of plaintiffs.

3. Animals. In action for balance due plaintiffs for care of defendant corporation's cattle under agistment agreement,

evidence supported trial court's findings and conclusion that plaintiff's negligence did not cause loss of

some of cattle, for which defendant counterclaimed.

4. Animals. In action for balance due plaintiffs for care of defendant's cattle under agistment agreement, evidence

warranted trial court's conclusion that loss of some of defendant's bulls, for which defendant filed

counterclaim, was not due to plaintiff's negligence or lack of care, but to facts that defendant supplied too

few bulls to serve herd and that they were not in condition to be turned out on rugged open range and to

illness and natural causes.

OPINION


This is an appeal taken by the defendant in the court below from money judgment for the

plaintiffs and from judgment against the defendant upon its counterclaim. The appellant

contends that in neither respect does the evidence support the judgment or the findings of the

trial court which sat without jury.

Plaintiffs Sewell, residents of Elko County, possess ranch properties and range rights in

northern Nevada and southern Idaho. The defendant corporation has ranch properties in

Humboldt County, Nevada. The action arose out of an agreement of agistment between the

parties, whereby plaintiffs were to care for certain �� .�� "��


of defendant's cattle for a period of two years. Following an accounting in the trial below the

court found that under the agreement charges against the defendant totaled $106,178.41,

while credits amounted to $67,047, leaving a balance due in the sum of $39,131.41.

Judgment was rendered against the defendant in this amount.

[Headnote 1]

Upon this appeal the defendant's sole attack upon this judgment is against the manner in

which the court computed the amount of hay provided to defendant's cattle, for which under

the agreement defendant was to pay $15 a ton. The court found that 5,025.4 tons had been

provided for a total sum due of $75,381. The defendant contends that 4,273 tons had been

provided for a total sum due of $64,095; that the court's judgment is excessive in the sum of

$11,286. The difference results from the manner in which weight was computed from the

volume of hay in cubic feet, as to which figure there was no dispute.

The agreement provided that the hay was to be “measured according to the so-called

‘government rule'.” The parties are in dispute as to the rule to which the agreement refers.

Plaintiffs contend that it refers to the “Quartermaster Rule”: a method of measuring hay in

stacks to determine its volume in cubic feet. The court adopted this view and received

evidence of local custom as to the method of computing weight in conjunction with a

determination of volume by means of the Quartermaster Rule.

Defendant contends that the agreement refers to the current methods of measurement of

both volume and weight as recommended by the United States Department of Agriculture.

“Leaflet No. 72” of the department was introduced in evidence. It was originally issued in

1931 and has never been superseded.

It should be noted, however, that the agreement does not specify the “government rule” or

the “approved government rule”, but rather the “so-called government rule.” There is no

evidence that Leaflet 72 has ever been �� #��$


known as or called “the government rule.” The leaflet itself refers to the Quartermaster Rule

as the “so-called government rule.” A reading of the bulletin indicates that its author proposes

new rules for the measurement of hay in stacks and criticizes the Quartermaster or “so-called

government rule” as inaccurate. The Department of Agriculture apparently agrees with the

author that his rule is preferable to the Quartermaster or so-called government rule. Yet the

evidence is conclusive that the parties to the agreement were satisfied with the Quartermaster

Rule. The measurement of the volume of the hay in stacks upon which the parties agreed was

actually done by means of the Quartermaster Rule.

Under the circumstances we are fully satisfied that the record supports a determination that

the agreement by its language had reference to the Quartermaster Rule and not to Leaflet No.

72. Since there is no evidence that the Quartermaster Rule extends to a determination of

weight from volume, it cannot be said that the agreement specified the method by which such

determination was to be made. The court considered the method proposed by Leaflet 72 and,

in the light of local climatic conditions, rejected it as less accurate than the method followed

by local custom. The record amply supports this conclusion, and the judgment in this respect

must be affirmed.

Defendant counterclaimed for $220,000 suffered through loss of cattle due to alleged acts

and neglect on the part of the plaintiffs while the cattle were in their care under contract of

agistment. Liability is dependent on proof of fault. Bramlette v. Titus, 70 Nev. 305, 267 P.2d

620. The trial court found that any loss suffered was not attributable to plaintiffs. The

findings are expressed at length and are in all respects supported by the record.

Defendant's counterclaim may be considered in three parts: Loss of cattle, loss of bulls,

loss of calf crop.

[Headnote 2]

First, as to the cattle: In early April, 1951, defendant �� 6 ��'�-�)��


delivered to plaintiffs on their range in Idaho 2,701 head of cattle. Toward the end of June the

cattle, by then commingled with cattle belonging to plaintiffs, were moved to summer range.

A count was then made, showing 298 head less than had been delivered. It is for this shortage

that plaintiffs remained accountable upon ultimate return of the cattle to defendant in 1953.

Upon proof of this loss the burden of going forward with the evidence shifted to plaintiffs.

Bramlette v. Titus, supra. The record establishes that the plaintiffs have clearly met this

burden.

When the cattle were delivered to plaintiffs they were in weakened condition. They had

been trailed from defendant's range in Nevada and had suffered a severe snow storm enroute

during which the herd had been scattered and over 450 head had not been recovered. They

were rested for one day before being placed on plaintiffs' range. They were tired and thin.

The range on which they were placed was an extensive and rugged desert range. It

embraces the major portion of five townships and is cut by streams and by canyons of

considerable depth.

The record establishes the tendency of young cattle, such as were those in this herd, to drift

back from new and strange ranges to their home range. Approximately 100 head of the

missing cattle were subsequently found on an adjoining range by the adjoining rancher and

were by him headed back to their home range.

The average annual death and stray loss throughout the general area was shown to be from

one percent to 10 percent. In plaintiffs' experience their average loss was four percent.

From these facts the trial court concluded that the loss “resulted from drifting, or natural

causes resulting from the weakened condition of the cattle.” The record supports this

conclusion.

[Headnote 3]

Nor is it established that the loss might have been avoided but for the negligence of the

plaintiffs. At all ��


times plaintiffs maintained riders to keep the cattle spread out on the range and on its waters,

in accordance with good range practice. Defendant's herd received the same care as did

plaintiffs' cattle, with which it was commingled. After the loss was disclosed riders twice

were sent back to search for missing cattle. Sixty-nine head were recovered. A third search

was made by airplane after winter had set in. The record supports the court's findings and its

conclusion that defendant had failed to fix responsibility for the loss upon plaintiffs.

[Headnote 4]

Second, as to the bulls: In June, 1951, 49 young bulls were turned out on the range. That

fall only 36 were recovered. When delivered, the bulls were young and fat and had not yet

recovered from deep branding. They were turned out on rugged summer range on order of the

defendant and contrary to advice of the plaintiffs that they be conditioned for two weeks

before being turned out. This would also permit the bulls to be turned out on less rugged

range, to which the cattle herd, in the course of its summer grazing, was working its way. The

bulls were too few by one-half to serve the herd.

In June, 1952, defendant delivered an additional 50 head of bulls. An indeterminate

number of the bulls delivered had anaplasmosis, a serious blood disease of cattle which may

well result in death. Of the total of 99 bulls delivered 48 were returned.

From these facts the court concluded that the bull loss was not due to plaintiffs' negligence

or lack of care but was due to defendant's supplying too few bulls; to the fact that they were

not in condition to be turned out on rugged open range; to illness, and to natural causes.

Under the record we find no error in this respect.

Third, as to the calf crop: Defendant claims that under proper care the herd should have

produced 1,600 calves in 1951 and 1952; that only 469 calves were produced. The court

attributed this loss to an inadequate ��


number of bulls, the condition of the bulls, and the fact that in 1951 some of the heifers were

too young to be bred. We find no error in this conclusion under the record.

Judgment affirmed.


(Badt, J. participated in the deliberations and concurs in the result, but was absent at the


____________

��72 Nev. 237, 237 (1956) First National Bank v. Friednash��

FIRST NATIONAL BANK OF NEVADA, a Corporation, as Administrator With Will

Annexed of the Estate of GENEVA OPAL FRIEDNASH, Deceased; OLIVE LOUISE

RICKS, THELMA PEARL IMAS, WILMER P. ADAMS, ROBERT STEWART ADAMS,

JAMES WILMER ADAMS, JOHN H. ADAMS, AND CARRIE ADAMS, as Devisees

Under the Will of GENEVA OPAL FRIEDNASH, Deceased, Appellants, v. HYMAN

FRIEDNASH, Respondent.

No. 3921

October 11, 1956. 302 P.2d 281.

Appeal from Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,

Department No. 3.

Action by surviving husband to enforce alleged contract with wife, since deceased, to

leave all property of either spouse upon his or her death to the survivor. From a judgment

impressing a trust in favor of plaintiff upon estate of his deceased wife, the executor of, and

beneficiaries under, the will of deceased wife appealed. The Supreme Court, Merrill, C. J.,

held that instrument executed by husband and wife, leaving all the property of either upon his

or her death to survivor, was ��"��


testamentary in character, purporting to be a jointly executed reciprocal will, and that, as

such, it was revocable at any time by either party in absence of any expression of or reference

to an agreement not to revoke.

Reversed.

McNamee & McNamee and G. Williams Coulthard, of Las Vegas, for Appellants.

George E. Marshall and Benjamin T. Weinstein, of Las Vegas, for Respondent.

1. Wills. Contracts to devise property in particular manner are enforceable, but such a contract must be definite,

clear and unequivocal.

2. Frauds, Statute of. Where estate left by deceased wife included both real and personal property, under statute of frauds,

testimony tending to establish an oral agreement could not be considered in action by surviving husband to

enforce alleged contract with wife by which each allegedly agreed upon death to leave all property to the

survivor. N.C.L.1929, sec. 1529.

3. Frauds, Statute of. An agreement to devise in a particular manner an estate which at death consisted of both real and

personal property would amount to a contract to devise realty which would fall within the statute of frauds

as a contract for sale of lands. N.C.L.1929, sec. 1529.

4. Wills. Written instrument executed by husband and wife, leaving all the property of either spouse upon his or

her death to the survivor, was testamentary in character, purporting to be a jointly executed reciprocal will,

and as such it was revocable at any time by either party, in absence of any expression of or reference to an

agreement not to revoke, and could not be converted into mutual irrevocable promises to devise.

5. Frauds, Statute of. A jointly executed will, while testamentary rather than contractual in nature, may by its language

evidence an irrevocable contract between the parties, and thus, as a memorandum in writing, satisfy the

statute of frauds. N.C.L.1929, sec. 1529.

6. Wills.

Something more than the mere making of reciprocal testamentary dispositions is required to convert a

revocable testamentary instrument into an irrevocable contract, and mere fact that husband and wife joined

in executing an instrument ��"�� "� ��


leaving all the property of either upon his or her death to the survivor did not conclusively demonstrate and

evidence an enforceable contract. N.C.L.1929, sec. 1529.

7. Wills. Essential to every will is its revocable quality, and implicit in every testamentary expression is a

reservation of right to change such testamentary disposition as circumstances involving status or

responsibility may alter or as affection may from time to time direct.

8. Wills. A promise not to revoke cannot be implied solely by reason of the reciprocal nature of testamentary

provisions, in absence of any expression of or reference to an agreement not to revoke.

9. Frauds, Statute of. Under the statute of frauds, an oral agreement to devise land cannot be enforced. N.C.L.1929, sec. 1529.

10. Frauds, Statute of. That husband at time of wife's death had not revoked testamentary instrument jointly executed by

husband and wife, leaving all the property of either at his or her death to the survivor, did not constitute

such “performance” of any oral agreement to devise property, including realty, in specified manner as

would remove the bar of statute of frauds. N.C.L. 1929, sec. 1529.

OPINION


This is an action brought by respondent, as plaintiff below, to enforce the terms of an

alleged contract between himself and his deceased wife, whereby, it is claimed, each agreed

upon death to leave all property to the survivor. The appellants, defendants below, are the

executor of the will of respondent's deceased wife and the beneficiaries under that will. The

trial court found a binding contract to exist as alleged by respondent and impressed a trust

upon the estate in his favor. From that judgment this appeal is taken.

On July 28, 1949 respondent and his wife, each being possessed of a separate estate,

executed the following instrument: “We the undersigned, Hyman Friednash and Geneva

Friednash, being of sound mind, make this ��@��


letter in the form of a Will in case of the death of either one of us. In the case of the death of

Hyman Friednash then I, Hyman Friednash leave everything I own to Geneva Friednash. In

the case of the death of Geneva Friednash then I, Geneva Friednash leave everything I own to

Hyman Friednash. Should anyone make a claim against this Will other than Hyman Friednash

and Geneva Friednash, if they are friends or relatives, then they are to receive Ten Dollars

only. This is only to satisfy their claim and for no other reason. This letter and Will is made

out in good faith and for the protection of both of us.” Subsequently the wife executed the

instrument which was ultimately admitted to probate as her last will.

The court below, over objection of appellants, admitted testimony relative to a

conversation between the parties at the time of their execution of the first instrument. From

that testimony and from the language of the instrument itself the trial court concluded that an

irrevocable agreement between the parties had been reached to the effect that all property of

the first to die would go to the survivor.

[Headnote 1]

Contracts to devise property in a certain manner are enforceable. Waters v. Harper, 69

Nev. 315, 250 P.2d 915; Barringer v. Ray, 72 Nev. 172, 298 P.2d 933. It is necessary,

however, that such a contract be definite, clear and unequivocal. See annotation 168 A.L.R.

30. The question upon this appeal is whether such a contract has been established.

[Headnotes 2, 3]

Testimony tending to establish an oral agreement cannot be considered. The estate left by

the decedent included both real and personal property. An agreement to leave such an estate

in a certain manner amounts to a contract to devise real property. Turnipseed v. Sirrine, 57

S.C. 559, 35 S.E. 757, 1035, 76 Am.St.Rep. 580. A contract to devise real property falls

within the statute ��


of frauds as a contract for sale of lands. Gibson v. Crawford, 247 Ky. 228, 56 S.W.2d 985;

Gould v. Mansfield, 103 Mass. 408, 4 Am.Rep. 573; Hale v. Hale, 90 Va. 728, 19 S.E. 739;

Rogers v. Joughin, 152 Wash. 448, 277 P. 988; Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927,

43 A.L.R. 1010; 2 Williston on Contracts, Revised Edition, 1404, sec. 488; Restatement of

the Law, Contracts, sec. 193; Anno. 102 Am.St.Rep. 240, sec. VIIIa. Our statute of frauds

provides: (sec. 1529 N.C.L. 1929) “Every contract for the leasing for a longer period than one

year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or

some note or memorandum thereof, expressing the consideration, be in writing, and be

subscribed by the party by whom the lease or sale is to be made.”

[Headnote 4]

We are then left with the instrument itself. Upon its face it does not purport to be a

contract but a jointly executed reciprocal will. The expressions and provisions are not

contractual but are testamentary. As a will it is revocable at any time by either party. Canada

v. Ihmsen, supra. See: Rolls v. Allen, 204 Cal. 604, 269 P. 450; 4 Page on Wills 833, sec.

1709.

[Headnote 5]

A jointly executed will, while testamentary rather than contractual in nature, may by its

language evidence an irrevocable contract between the parties and thus, as a memorandum in

writing, satisfy the statute of frauds. See Waters v. Harper, supra.

[Headnote 6]

It is contended by respondent that the fact that the parties have joined in executing the

instrument in question conclusively demonstrates and evidences an enforceable contract.

Upon this proposition authority appears to be divided. See: 19 Minn. Law Rev. 95; Anno. 169

A.L.R. 29. In our view the sounder rule rejects the proposition. As stated in Alexander's

Commentaries on Wills, sec. 85, quoted in Canada v. Ihmsen, supra: “It should ��,��"� ��


require something more than the mere making of reciprocal testamentary dispositions to

convert a revocable instrument into an irrevocable compact.”

[Headnotes 7-9]

Certainly it may be said that the instrument demonstrates that the minds of the parties have

met upon a common testamentary wish. Each testator has in effect stated that under the

conditions and circumstances then existing such a testamentary disposition is desired. It does

not follow, however, that either has promised, regardless of any change in those

circumstances which have brought about the common testamentary wish, that such

disposition shall nevertheless be maintained irrevocably. Essential to every will is its

revocable quality. Implicit in every testamentary expression is a reservation of right to change

as circumstances involving status or responsibility may alter or as affection may from time to

time direct. That the common testamentary wish of two people is jointly expressed does not

in reason or common sense destroy its ambulatory character in this regard. In the absence

from the instrument of any expression of or reference to an agreement not to revoke, no

promise to such effect, can be implied solely by reason of the reciprocal nature of the

testamentary provisions. Gibson v. Crawford, supra; Ginn v. Edmundson, 173 N.C. 85, 91

S.E. 696; In re Rhodes Estate, 277 Pa. 450, 121 A. 327; Beveridge v. Bailey, 53 S.D. 98, 220

N.W. 462, 60 A.L.R. 619; Hale v. Hale, supra; Gray v. Perpetual Trustee Company (1928)

A.C. 391, 60 A.L.R. 613. We may not then convert this revocable testamentary expression

into mutual irrevocable promises to devise. Under the statute of frauds an oral contract to that

effect cannot be enforced.

[Headnote 10]

Respondent contends that performance by himself has removed the bar of the statute since

he himself has never revoked the will. This is not sufficient to constitute performance. Gould

v. Mansfield, supra; Busque v. Marcou,


147 Maine 289, 86 A.2d 873, 30 A.L.R.2d 1411; McClanahan v. McClanahan, 77 Wash. 138,

137 P. 479; Canada v. Ihmsen, supra.

Reversed and remanded with instructions that judgment be entered for defendants.


____________

��72 Nev. 243, 243 (1956) Lawrence v. State��

HELEN WANEMA LAWRENCE, Appellant, v. THE

STATE OF NEVADA, Respondent.

No. 3872

October 15, 1956. 302 P.2d 285.

Appeal from the Eighth Judicial District Court of the State of Nevada, in and for the

County of Clark; Ryland G. Taylor, Judge, Department No. 3.

Defendant was convicted of murder in the first degree. The trial court entered judgment

and defendant appealed. The Supreme Court, Eather, J., held that refusal to admit defendant's

testimony relating to her relationship with deceased prior to the crime, was prejudicial error

as such evidence was admissible to show possible provocation and circumstances which

might have affected defendant's state of mind at time of shooting.

Reversed and remanded for new trial.

(Rehearing denied November 27, 1956. See 72 Nev. 286 for Opinion.)

Jones & Pursel, of Las Vegas, for Appellant.

Harvey Dickerson, Attorney General, State of Nevada; George M. Dickerson, District

Attorney, Clark County; Gordon L. Hawkins, Deputy District Attorney, Clark County, for

Respondent.

Homicide.

In first degree murder prosecution, wherein defendant contended that her mental, physical and emotional

condition at �� 3��


time of shooting of her former husband was such as to preclude existence of first degree malice and

premeditation and that there was provocation, refusal to admit in evidence testimony of defendant in regard

to divorce she allegedly granted husband conditioned upon his promises, which were never kept, and also

in regard to threats he made to her, was prejudicial error, as such testimony was material to defendant's

state of mind at time of shooting.

OPINION


This is an appeal taken by the defendant below from judgment of conviction of the crime

of murder in the first degree and from sentence of life imprisonment.

On March 3, 1954, on a street in Las Vegas, Clark County, Nevada, defendant shot her

former husband, Phare Lawrence, and 13 days later, following medical and surgical

treatment, he died.

Two defenses were asserted at trial and are reflected in this appeal. First, defendant

contends that the State failed to establish that the bullet wound was the cause of death. This

contention is based upon the fact that the medical testimony in evidence is in a state of utmost

confusion and inconsistency. The merits of this contention we are not called upon to decide in

the light of our views with respect to the second defense.

Defendant also contends that her mental, physical and emotional condition at the time of

the shooting was such as to preclude the existence of the first degree malice and

premeditation and that the facts show provocation for her action. Numerous assignments of

error are made in this respect. We need consider only those going to the exclusion of certain

testimony.

The record shows that the defendant and the deceased were married in 1933. In 1950

defendant suffered a case of poliomyelitis. In the course of recovery she became addicted to

drugs. She sought cure and by 1953 she had effected a cure from her addiction. In March,

1953, the ��


defendant and deceased were divorced. At that time the home in which they were living was

owned by the defendant as her separate property. By the divorce decree, based upon

separation agreement, the home was awarded to the deceased. Defendant, however, continued

to live in it until January, 1954 when she was ejected against her will by the deceased. At that

time, according to witnesses for the State, but denied by the defendant, she made threats

against the life of the deceased. The deceased remarried and at the time of the shooting was

living in the defendant's former home with his new wife. From the time of the divorce

defendant commenced excessive use of alcohol and just prior to the shooting had consumed a

substantial amount of liquor. Defendant testified that at the time of the shooting she had been

trying to persuade the deceased to return her former home to her and had suggested that in the

event of his refusal she would bring legal action; that the deceased had countered with a

threat that if she brought action her body would wind up on the desert.

Defendant offered to prove that in October, 1952, she had observed her husband in

intimate embrace with another woman; that in March, 1953 her physical condition was

extremely poor; that she had just been discharged from a sanitarium in California and upon

her return to Las Vegas had been met by a demand for a divorce from her husband; that her

husband, for tax reasons, was unable to make a full disclosure of his assets; that he prevailed

upon defendant to accept the property settlement under the promise that the home would be

deeded back to her and that he would seriously consider reconciliation and remarriage; that

following the divorce and until January, 1954, he reiterated these promises to defendant; that

in January, 1954, he advised defendant that the six months' period within which a

modification of the divorce decree might be sought had expired and that the decree and

settlement were final and binding; that the house would not be returned and �� <


that there would be no reconciliation; that it was at that time that defendant was ejected from

her home; that when in Las Vegas, after that time, she seemed to be drawn as by a magnet to

the home where she could see the deceased with his new wife enjoying the home that had

been hers, and the wedding gifts that had been hers.

All of this testimony was rejected by the court as immaterial. It ruled that it would not

retry the Lawrence divorce case; that the title to the home was not in issue; that the deceased's

widow was not on trial.

But no one sought to reopen the divorce case. No one sought to recover the home. No one

sought to assert alienation of affections. Defendant simply sought to show provocation and

circumstances which the jury might find to have materially affected her state of mind. Under

no circumstances could such testimony be held immaterial. It constituted the very heart of the

defendant's defense and should have been admitted for jury consideration. Whisenhunt v.

State, Okla.Cr., 279 P.2d 366: Hill v. State, 27 Ala.App. 55, 166 So. 60: Ward v. State, 96

Tex.Cr.R. 278, 257 S.W. 536.



____________

��72 Nev. 247, 247 (1956) Beebe v. Koontz��

BETTY BEEBE, Petitioner, v. JOHN KOONTZ, Individually, and as Secretary of State of the

State of Nevada, et al., Respondents.

Nos. 3988 and 3992

October 18, 1956. 302 P.2d 486.

No. 3992

BETTY BEEBE, Appellant, v. JOHN KOONTZ, Individually, and as Secretary of State of

the State of Nevada, et al., Respondents.

RICHARD HAM, Intervenor and Respondent.

Original petition for writ of mandate in No. 3988, and appeal from First Judicial District

Court, Ormsby County; Hon. John F. Sexton of the Third Judicial District presiding, in No.

3992.

The Supreme Court held that where at time petition for writ of mandate to command

Secretary of State and several county clerks to omit referendum from ballots, and petition for

injunction to restrain placing of such referendum on ballots, were filed, one year had already

elapsed since filing of referendum petition with Secretary of State, and there was no

explanation given for the one year delay and consideration of the case could not be had

without disruption of the process of election, determination of the issues on the merits would

be refused by the Supreme Court.

Order in accordance with opinion.

Zenoff, Magleby & Manzonie, of Las Vegas, for Appellant in No. 3992 and for Petitioner

in No. 3988.

Harvey Dickerson, Attorney General, Carson City, for Respondents.

George Rudiak, of Las Vegas, appearing as amicus curiae in No. 3988 and as attorney for

intervenor in No. 3992.


1. Constitutional Law.

The initiative and referendum provisions of the Constitution are self-executing with reference to state

matters but are not self-executing with reference to county and municipal matters. Const., Art. XIX, sec. 1

et seq.

2. Mandamus. Where resort to the Supreme Court by mandamus is had to prevent an issue from being presented for

popular election and when such resort is tardily had without showing of good cause for such lateness and

when, due to such tardiness and nature of the issues of law presented, orderly consideration cannot be had

without disruption of the process of election, the Supreme Court will refuse determination of those issues

on the merits. N.C.L.1929, sec. 2531 et seq.; Const., Art. XIX, sec. 1 et seq.

3. Appeal and Error; Mandamus. Where at time petitions for writ of mandate and for injunction in order to have certain tax referendum

omitted from ballot and to restrain inclusion of such referendum in other ballots came before Supreme

Court for consideration, one year had already elapsed since filing of referendum petition involved with

Secretary of State, and no explanation was given for the delay and orderly consideration of the case could

not be had without disruption of the process of the election. Supreme Court refused determination of the

issues involved. St.1955, p. 762; N.C.L.1929, sec. 2531 et seq.: Const., Art. XIX, sec. 1 et seq.

OPINION

Per Curiam:

Both of the above entitled matters involve the placing on the ballot at the general election

on November 6, 1956, by the secretary of state of a referendum petition to determine whether

or not that certain act of the legislature known as the sales tax law, being “An Act to provide

revenue for the State of Nevada; providing for sales and use taxes” etc., approved March 29,

1955 (Stats. 1955, 762), should be approved by the people. The first proceeding, No. 3988,

filed with the clerk of this court October 4, 1956, is a petition for writ of mandate

commanding the secretary of state and the several county clerks to omit the said question

from the ballots and commanding the secretary of state to correct the certification made by

him on August 8, 1956, of the propositions to be voted on at said general election by

notifying ��"��,��


each of the county clerks that such question must be omitted from the ballots used. The

second proceeding, No. 3988, is an appeal from an order of the First Judicial District Court,

in and for the County of Ormsby, denying the petition of the same plaintiff for an injunction

restraining the same respondents from similar action. The petition in that case was filed

October 8, 1956 in the district court, the denial of injunctive relief filed October 11, and

notice of appeal filed in this court on the same day, together with the record on appeal and

together with a stipulation that the two matters might be consolidated for hearing October 17,

1956.

Under both proceedings the main questions presented are (1) whether the petitions seeking

a referendum of the sales tax law purporting to be signed by 10 percent of the “qualified

electors” satisfy the requirements of Article XIX of the state constitution and of section 2531

et seq. N.C.L. 1929 requiring such petitions to be signed by 10 percent of the “voters”; and

(2) whether the verification of each of the counterparts of the petition by an affiant who was

not one of the signers and who certified, not that the signers were “voters,” but that they were

“qualified electors,” was sufficient.

Briefs in support of the contentions of the respective parties were not filed with this court

until October 17, 1956, a few minutes before the oral argument, and supplemental points and

authorities were handed to the clerk for delivery to the court during the course of the

argument.

Beebe, as petitioner herein and as appellant herein, contended that Caton v. Frank, 56 Nev.

56, 44 P.2d 521, 524, is controlling of the issues here submitted. That was an original

proceeding in mandamus to compel the respondents to proceed upon a petition signed by a

number of the “qualified electors” of the city of Reno to amend its charter. This court there

said: “We are of the opinion that the legislature, in enacting section 1257 N.C.L. 1929,

contemplated that the signers to the petition provided for therein, in addition to being a mere��


elector as provided in the constitution, must have complied with the registration laws, and

become a voter. Such was evidently the view taken by this court in the case of State ex rel.

Boyle v. State Board of Examiners [21 Nev. 67, 24 P. 614, 9 L.R.A. 385], supra.” It held the

affidavit to the petition to be defective in that “it does not show that the person making the

affidavit was himself a signer of the petition” and in that he certified that the signers were, not

“qualified voters,” but “electors”; that an elector would not be a qualified voter until he had

registered as required by the registration laws.

Respondents contend that the holding in that case is greatly limited by the subsequent

decision of this court in Gilbert v. Breithaupt, 60 Nev. 162, 104 P.2d 183, 128 A.L.R. 1111,

in which the ouster of the appellant was sought because, while a qualified elector, he was not

a qualified voter of the city of Las Vegas or of the county of Clark, and therefore allegedly

not a qualified candidate for election. As in the Caton case, numerous authorities were

discussed by the court and it was held that the Caton case did not control but that as a

qualified elector he was eligible as a candidate for office.

The three sections of Article XIX of the constitution were discussed at length by all

parties. The attorney general supported the decision of the district court in the injunction

proceeding to the effect that injunction would not lie to interfere with the orderly processes of

legislation, and in this respect distinguished Caine v. Robbins, 61 Nev. 416, 131 P.2d 516,

upon which appellant relied. He and counsel for intervenor also argued at length that

mandamus would not lie to compel the secretary of state to undo that which he had already

done, citing a number of cases from this court and many from other jurisdictions. But see

State ex rel. Haight v. Wilson, 40 Nev. 131, 161 P. 306, in which mandamus was held proper

to compel the county clerk to exclude from the ballots the name of a candidate improperly

nominated, and a number of other cases in support. As against this, respondents refer us to

State v. Public ��?��


Service Commission, 44 Nev. 102, 190 P. 284, 285, in which this court said: “There has been

no refusal on the part of the commission to perform any duty enjoined upon it. The writ is not

sought to stimulate the commission to action pursuant to some legal duty, but rather to cause

it to undo the result of action taken in a matter in which its jurisdiction has been invoked in

conformity with the statute defining its powers over public utilities in this state. Mandamus is

ordinarily a remedy for official inaction, and will not lie to undo what has been done.” See

also State v. Gracey, 11 Nev. 223.

[Headnote 1]

The oral argument developed further disagreement among counsel as to the effect of the

holdings of this and other courts and particularly as to the proper construction and

interpretation of the constitutional and statutory provisions involved. With reference to the

effect of the Caton case upon the issues presented, it must also be noted (1) that while the

initiative and referendum provisions of Article XIX of the constitution were self-executing

with reference to state matters, they were not self-executing with reference to county and

municipal matters; State ex rel. Dotta v. Brodigan, 37 Nev. 37, 138 P.914; that, accordingly,

the referendum in the Caton case, involving amendment of the city charter, might be

considered, as to rules and methods of application, a creature of the statute rather than of the

constitution, and therefore not necessarily controlling in construing the provisions of Article

XIX; and (2) that in the Caton case the action sought by the petition was far more drastic, in

that the petition itself, signed by 60 percent of the electors, was a species of election and

actually effected the amendment without an election, while the petition in the instant case

simply initiated election proceedings. We recognized such a distinction in State ex rel.

Quimby v. City of Reno, 71 Nev. 144, 282 P.2d 1071.

Respondents further contended that the interpretation �� "�� A


of the constitution as made by petitioner and appellant leads to absurd results: that the record

shows that in the various petitions circulated, there were provisions for only ten signers on

each counterpart of the petition; that if the person verifying was required likewise to be a

signer of the petition, his name would appear, for example, on a hundred petitions—yet

ninety-nine of his said signatures would be duplications; that this would impose an

impossible burden on the secretary of state to scrutinize every counterpart of the petition for

the solution of such problem; that the county clerks, pursuant to the election laws, strike from

the registration lists the names of all qualified electors who have not voted; that this is done

immediately following each election and that voters are not required to reregister until shortly

prior to the next ensuing election; that under petitioner's contention such voters not

reregistering over a period of some two years would, during that interim, be foreclosed of the

right of signing an initiative or referendum petition.

Respondents further examined the three sections of Article XIX line by line and called

attention to the constant use of the term “electors” and “qualified electors,” as well as the

term “voter,” in the three sections of the article.

In addition to the cases mentioned in this memorandum, the briefs cite many additional

cases from this and other states.

This is the third successive general election with respect to which this court has

entertained last-minute litigation regarding matters sought to be presented for the vote of the

people. We feel that this is the proper occasion for a statement of the limits beyond which this

court will not go in its accommodation of such litigants.

[Headnote 2]

Where resort to this court is had to prevent an issue from being presented for popular

election and when such resort is tardily had without showing of good cause ��


for such lateness and when, due to such tardiness and the nature of the issues of law

presented, orderly appellate consideration cannot be had without disruption of the process of

election, this court will refuse determination of those issues on the merits.

[Headnote 3]

In the instant cases no explanation has been given to this court for the delay in seeking our

determination upon the issues involved. One year has elapsed since the referendum petition

was filed with the secretary of state. The issues should then have become apparent.

Due to the lateness in filing, unless a decision be handed down by this court forthwith, the

election process will be disrupted. We can take note of the fact that the time has already

passed when the clerks of some of our counties ordinarily set in motion the machinery for the

printing of ballots. Further delay will seriously prejudice the rights of absentee voters to

participate in the election. In Brown v. Georgetta, 70 Nev. 500, 275 P. 2d 376, we had

occasion to comment upon the nature of those rights. They were not permitted to prejudice

the rights of the general electorate to express its election upon a proper issue. The rights of

absentee voters, however, are of sufficient substance to warrant our refusal to sanction their

destruction by the delays inherent in orderly judicial procedure where such destruction would

have been avoided by timely action on the part of the petitioner.

The legal issues presented in these matters cannot be decided forthwith upon their merits.

If such decision is to stand as law a careful consideration must be had of the many issues

already mentioned.

We can, then, foresee that in the course of orderly appellate consideration the judicial

process itself may well render these issues of law moot prior to the announcement of our

decision.

Under these circumstances for this court to entertain this litigation further would amount

to an unwarranted ��"��%� ��


interference by the judicial department with the electoral franchise of the people of this state.

Such interference, so far as the ensuing election is concerned, might well amount to a

substantial destruction of that most important civil right.

Accordingly we hold that, regardless of the merits of the contentions of

petitioner-appellant, delay in presenting the matter to the courts of this state has in practical

necessity lost her the right of judicial determination by this court.

In Case Number 3988 writ denied.

In Case Number 3992 judgment affirmed.

____________

��72 Nev. 254, 254 (1956) Schumann v. Martin��

GEORGE SCHUMANN, EMMA R. SCHUMANN, HYRUM SCHUMANN, MARLENA P.

SCHUMANN, GEORGE A. SCHUMANN, SUSAN B. SCHUMANN, HENRY M.

SCHUMANN and JUNE LA PRIEL SCHUMANN, A copartnership, Appellants, v. ROSS

MARTIN and SARA LEA MARTIN, His Wife, Respondents.

No. 3910

October 18, 1956. 302 P.2d 284.

Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.

Action for damages to plaintiffs' cattle by reason of defendants' acts in depriving them of

stock water. From a judgment for plaintiffs, defendants appealed. The Supreme Court,

Merrill, C. J., held that negligent trespass was within scope of action which was brought on

theory that defendants, as upstream landowners, had wrongfully placed an obstruction in

water course and thereby diverted all water therefrom, including the flow of stock water to

which plaintiffs, downstream, were ��"��


rightfully entitled, and hence defense of contributory negligence was available to defendants.


Orville R. Wilson, of Elko, and L. Delos Daines, of Salt Lake City, Utah, for Appellants.

F. Grant Sawyer, of Elko, for Respondents.

1. Negligence. Contributory negligence is a defense to an action for negligent invasion of one's property right.

2. Waters and Water Courses. Negligent trespass was within scope of action for injury to cattle from lack of water on theory that

defendants, as up-stream landowners, had wrongfully placed an obstruction in water course and thereby

diverted all water therefrom, including flow of stock water to which plaintiffs, down-stream, were rightfully

entitled, and hence defense of contributory negligence was available to defendants.

OPINION


This is an action for damages to respondents' cattle by reason of appellants' acts in

depriving them of stock water. From a jury verdict in favor of respondents, the appellants

have taken this appeal. The sole question involved is whether in such an action the defense of

contributory negligence is available to the appellants as defendants below.

It was alleged by the respondents that appellants, upstream, had wrongfully placed an

obstruction in the water course and thereby diverted all water therefrom, including the flow of

stock water to which respondents, downstream, were rightfully entitled. Among their

defenses appellants alleged that respondents had been guilty of negligence through failure to

examine their cattle, the pasture where they were held and the accessible watering spots,

which negligence proximately contributed to and caused the injury to the cattle. This �� "��#�� "�� "�$


defense was stricken by the trial court “for the reason that the same does not state a defense to

the complaint of plaintiffs in that contributory negligence is not a defense to an action based

upon dispossession of real property.”

[Headnote 1]

Such may be the rule in a case of willful dispossession, but it is not the rule in the case of a

negligent invasion of one's property rights. See 2 Restatement of the Law, Torts, 1287-8, secs.

497, 498. Accord, O'Connor v. North Truckee Ditch Company, 17 Nev. 245, 30 P. 882.

[Headnote 2]

Respondents contend that this was an action for willful rather than negligent trespass. The

complaint alleges that an obstruction was placed in the water course. Whether it was willful

or negligent is not specified. It must be recognized that such an obstruction may well result

from negligent rather than willful conduct. The testimony of one of the respondents was that

such was the cause.

With reference to the nature of trespass, the court instructed the jury as follows: “You are

instructed that the sense of ‘trespass,' as used in this case, is one of the following: A shutting

off of the stock waters at one of the points of diversion; or, the diversion of such a quantity of

the waters of Steele Creek as to substantially reduce the required flow of stock waters down

Steele Creek; or, the failure to exercise proper care in making the diversion, which lack of

care operates to cut off or reduce the required flow.” Thus a negligent trespass was clearly

recognized to be within the scope of the action.

It may be noted that another instruction also related to the exercise of proper care: that the

flow of stock water to which respondents were legally entitled was that which would flow

through a six-inch pipe or such amount as would in “the judgment of a reasonably prudent

man * * * constitute an equal flow. (In both quotations, emphasis supplied.)


The defense of contributory negligence, properly confined, was therefore available to the

appellants.



____________

��72 Nev. 257, 257 (1956) Riemer v. Riemer��

PHYLLIS M. RIEMER, Appellant, v. KARL

RIEMER, Respondent.

No. 3986

October 22, 1956. 302 P.2d 483.

Motion for allowances, in appeal from order modifying support provisions in divorce

decree, Second Judicial District Court, Washoe County; John S. Belford, Judge, Department

No. 1.

Divorce action. The trial court entered an order granting husband's motion for modification

of an order for support of the parties' minor children and wife appealed, and moved the

Supreme Court for preliminary allowances to enable her to prosecute such appeal. The

Supreme Court held that where necessitous circumstances were not shown by wife, a

preliminary order granting her preliminary allowances for costs of appeal would not be

granted, notwithstanding fact that husband might have agreed to pay costs of her litigation

and notwithstanding fact that her appeal sought a reversal of an order reducing husband's

payment for support, maintenance and education of the parties' children.

Motion denied.

Morgan Anglim and John S. Field, of Reno, and Wright, Wright, Green & Wright, of Los

Angeles, California, for Appellant.

Oliver C. Custer, of Reno, for Respondent.


1. Divorce. Preliminary allowances are granted in divorce actions in order to enable a wife to prosecute an appeal.

2. Divorce. In divorce action, where necessitous circumstances were not shown by wife, a preliminary order granting

her preliminary allowances for costs of appeal would not be granted, notwithstanding fact that husband

might have agreed to pay costs of her litigation and notwithstanding fact that her appeal sought a reversal

of an order reducing husband's payment for support, maintenance and education of the parties' children.

OPINION

Per Curiam:

Motion for allowances and for stay of proceedings ad interim. Phyllis M. Riemer, having

filed her appeal from the order of the district court granting her husband's motion for

modification of an order for support of their minor children, now moves this court for

allowances as follows: clerk's fee of $25 for filing appeal; $350 for preparation of record on

appeal; and $2,500 preliminary attorney fees for prosecuting the appeal. These proceedings

are the latest in a long history of litigation between the parties.

Neither in this court nor in the lower court has the wife alleged necessitous circumstances,

but she asserts that neither an allegation nor a showing of necessitous circumstances is

essential to her right to the allowances sought. In support of this contention she insists (1) that

by a contract of settlement with her husband, the latter agreed to pay all costs and expenses of

the then pending or future litigation, and (2) that in any event she is not seeking any further

allowances for herself but merely for the minor children of the parties.

[Headnotes 1, 2]

(1) The contractual obligation of the husband is disputed by him as a matter of law. Should

it be determined to exist, it may indeed be grounds for the wife's demand ��%� ��"��


for judgment for attorney fees etc. upon the conclusion of the case, but does not bring her

within the rule consistently followed by this and other courts that preliminary allowances are

granted in order to enable her to prosecute her appeal. Black v. Black, 47 Nev. 346, 221

P.239; Effinger v. Effinger, 48 Nev. 205, 228 P.615;, Fleming v. Fleming, 58 Nev. 179, 72

P.2d 1110. If she has ample funds to prosecute the appeal, the husband's agreement as above

recited would not in itself compel a preliminary order.

(2) Nor does the fact that her appeal seeks a reversal of the order reducing the husband's

payments for the support, maintenance and education of the children (as distinguished from

alimony orders) alter the situation. No authorities have been cited recognizing such a

distinction.

The motion for allowances is denied.

____________

��72 Nev. 259, 259 (1956) Farrell v. Farrell��

BARBARA BLAIR FARRELL, Appellant v. GEORGE

RAYMOND FARRELL, Respondent.

No. 3904

October 24, 1956. 302 P.2d 484.


Department No. 3.

Divorce action. From custodial provisions of a divorce decree entered by the trial court,

the wife appealed. The Supreme Court, Eather, J., held that Supreme Court would remand to

trial court for further proceedings in connection with wife's motion for modification of

custodial provisions of the decree, with direction that trial judge should be empowered to give

full consideration to all matters bearing upon fitness of both parents and suitability of their

respective homes, and that actions �� "� ��"��


so far taken should in no respect be deemed a final determination as of any date upon any

such matters.

Remanded for further hearing.

(Rehearing denied November 30, 1956.)

Arthur G. Lambert, Washington, D. C., Pike & McLaughlin, and Edwin C. Mulcahy, of

Reno, for Appellant.

Woodburn, Forman, Wedge, Blakey & Thompson, and John S. Belford, of Reno, for

Respondent.

1. Divorce. Where it appeared that trial judge was faced with an extremely perplexing problem in fixing custody of

children of divorced parties, and Supreme Court could not state that discretion could only be exercised in

one way, Supreme Court would not substitute its discretion for that of trial judge.

2. Divorce. Where trial court awarded custody of minor children of divorced parties to governess, who subsequently

surrendered custody, and mother then filed motion for modification of custodial provisions of divorce

decree, trial court should have considered question of mother's recovery of health and her fitness to have

custody of children.

3. Divorce. Where trial court awarded custody of minor children of divorced parties to governess, who subsequently

surrendered custody, and thereafter awarded custody of children to father without hearing upon vital

question of mother's fitness upon her motion for modification of custodial provisions of the divorce decree.

Supreme Court would remand to trial court for further proceedings in connection with the pending motion

for modification, with direction that trial judge should be empowered to give full consideration to all

matters bearing upon fitness of both parents and suitability of their respective homes, and that actions so far

taken should in no respect be deemed a final determination as of any date upon any such matters.

4. Divorce. Where divorced wife was personally present in court in support of her motion for modification of

custodial provisions of divorce decree, and it appeared that she had successfully borrowed necessary sum

for conducting such proceedings, trial court did not abuse its discretion in denying wife's motion for

allowance to cover cost of expenses of appearing in two of the hearings had on her application.


OPINION


This is an appeal taken by the wife from the custodial provisions of a divorce decree—an

award of custody of two minor girls aged 11 and 8 to the respondent husband.

In several respects it is contended that the trial court committed error; also it is contended

that the fitness of the mother and the unfitness of the father are demonstrated by the record

before us and that the granting to the father was therefore an abuse of discretion. A careful

study of the record and of the briefs of counsel (with their assignments of error and of abuse

of discretion) has convinced us of three things.

[Headnote 1]

First: It cannot be said that the relative fitness of the parties appears so clearly as to point

but one course to the trial judge. We cannot state that discretion could only be exercised in

one way, and thus direct the trial judge in his exercise of discretion. On the contrary, it most

clearly appears that the trial judge was faced with an extremely perplexing problem. We may

not then substitute our discretion for that of the trial judge. If his exercise of discretion for any

reason is to be disturbed, it must be through reconsideration on his part.

Second: The errors assigned by appellant wife are largely procedural matters. It is

contended that in many respects the procedures followed by the trial judge deprived the

appellant of opportunity fully and accurately to present to the court her fitness to serve as

custodian. A consideration of the steps taken in the court below demonstrates that these

contentions are not without merit.

Trial of the divorce action was completed on February 10, 1955 and the court then

announced its decision. (1) It directed the clerk to enter an order granting unto the defendant a

decree of divorce based on her cross complaint on the ground of extreme cruelty; (2) that the�� "�� <


court would not award custody to the husband; (3) that the court was inclined to award

custody to the wife if her physical and mental condition was fit; (4) that, under the facts as the

court saw them, it would award the custody to a Mrs. Hyatt, the children's governess; (5) that

if Mrs. Hyatt would not accept such custody, the court would award custody to some other

person or organization but not to either of the parties to the action.

At this time the judge in effect stated that were it not for the condition of the mother's

health he would have no hesitancy in giving her custody. Also by the very act of giving

custody to Mrs. Hyatt and by the emphasis used by the court in its determination to give

custody to a third person, if not Mrs. Hyatt then to some other third person, the conclusion is

inescapable that the court was definitely refusing to give custody to the father and must have

felt very strongly at that time he was unfit.

Mrs. Hyatt accepted custody reluctantly. Subsequently, and prior to signing of judgment, at

a conference in chambers attended by the plaintiff husband, Mrs. Hyatt advised that she

would be compelled to surrender custody. Thereupon, with notice to appellant and in open

court but apparently with no further hearing, the court entered judgment awarding custody to

the father. This action is so inconsistent with the apparent belief of the court at the conclusion

of trial as to suggest that in so acting the court was accepting statements made to it in

chambers and thus departing from established legal forms of procedure. Remarks by the court

from the bench at the time of the award to the father were conflicting as to its reliance upon

such matters. Such statements, if accepted by the court as a basis for its change of opinion as

to the fitness of the father, were unsworn, undisclosed, not subject to cross examination or to

rebuttal, and even at this time the nature of such statements does not appear in the record.

Examination of Mrs. Hyatt as to such statements was not permitted by the trial court.


[Headnote 2]

In our opinion not only was the court's action at this time inconsistent with its earlier view

as to the fitness of the father but it was inconsistent with its view as to the fitness of the

mother. The mother sought at this time to reopen the case in order to establish that after the

taking of further tests suggested by certain court-appointed doctors it had been established

that she had recovered her health. At the time of the Hyatt award the court appeared greatly

concerned with the question of her recovery of health. At the time of the award to the father

no consideration was given to this phase of the matter.

[Headnote 3]

Third: The trial court contemplated further consideration. A motion for modification of the

decree was made by the appellant, and, so far as the record before us demonstrates, at the

time of the appeal had never been brought to hearing upon the vital question of appellant's

fitness. The motion remains pending.

Therefore, our course in one respect appears clear. We have but to remand to the trial court

for further proceedings in connection with the pending motion for modification. Without

specification of the scope of those proceedings, however, some ambiguity may well result,

and some prejudice still attach to the errors assigned by appellant.

The confusion of the proceedings below would indicate that a fresh start would best serve

the interests of the minor children. Further, the original award to the respondent would appear

to have been based to an important degree upon such temporary considerations as the

interruption of the children's school program. It would appear that the trial judge himself, on

hearing of motion for modification, contemplated a full reconsideration of all circumstances

bearing upon the welfare of the children. In our view, therefore, the trial judge in acting upon

motion for modification should be empowered to �� "��<


give full consideration to all matters bearing upon the fitness of both parents and the

suitability of their respective homes; that actions so far taken should in no respect be deemed

a final determination as of any date upon any such matters.

[Headnote 4]

One matter remains for our consideration. It is contended that the trial court was guilty of

abuse of discretion in denying appellant's motion for allowances to cover the expenses of

appearing in two of the hearings had below. In each instance the motion was presented and

the ruling made on the very day of the hearing. In each instance the appellant was then

personally present in court, and it appeared that she had successfully borrowed the necessary

sum. Under these circumstances it was proper to refuse allowances. Black v. Black, 47 Nev.

346, 221 P.239.

It is ordered that this matter be remanded to the trial court for a full new hearing upon the

question of the custody of the minor children of the parties in accordance with the views

expressed in this opinion.

Appellant to have her costs.


____________

��72 Nev. 265, 265 (1956) Caplow v. District Court��

DAVID H. CAPLOW and SOL GERSHENHORN, Petitioners, v. THE EIGHTH JUDICIAL

DISTRICT COURT of the State of Nevada, in and for the County of Clark, and HARRY

WATSON, District Judge, Respondents.

No. 3968

October 26, 1956. 302 P.2d 755.

Original proceedings in prohibition to restrain district court from proceeding further in

contempt proceeding against petitioners. The Supreme Court, Merrill, C. J., held that under

the Nevada Rules of Civil Procedure, a judgment directing cancellation and surrender of

notes may be enforced by contempt proceedings where petitioners had not sought a stay of

execution pending appeal.

Writ denied.

Morse, Graves and Compton and Bruce Beckley, of Las Vegas, for Respondents.

1. Appeal and Error. Judgment directing surrender and cancellation of notes could be enforced by contempt, in absence of stay

of execution pending appeal. Rules of Civil Procedure, Rules 70, 73(d) (3).

2. Contempt. Service upon defendants' attorney of record of findings of fact and conclusion of law, judgment, and

motion to hold in contempt or order to show cause for failure to comply with judgment was sufficient

notice of contempt proceedings which were incidental to pending cause. Rules of Civil Procedure, Rule

5(b).

3. Prohibition. Claim that specific reference to notes in sums specified in judgment directing surrender of notes removed

any possible ambiguity in judgment presented issue which could be resolved by trial court in contempt

proceedings for failure to surrender notes and was not ground for issuance of writ prohibiting court from

proceeding further in contempt proceedings. Rules of Civil Procedure, Rules 70, 73(d)(3).


OPINION


This is on application for writ of prohibition. On May 11, 1956 final judgment against

petitioners was rendered by respondent court in an action brought against petitioners by Stutz

Enterprises, and others. Judgment included a provision that certain notes given by plaintiff,

Stutz Enterprises, payable to the defendants in the total sum of $47,500 be canceled and

surrendered by defendants to said plaintiff. An appeal from this judgment is now pending

before this court.

On July 13, 1956, upon motion of plaintiffs, an order was entered by respondent court

directing defendants to appear and show cause why they should not be held in contempt for

failure to surrender the notes pursuant to judgment. Contending that respondent court is

without jurisdiction to entertain said proceedings or to hold petitioners in contempt,

petitioners seek a writ of prohibition restraining respondents from proceeding further in such

matter. An alternative writ was issued by this court.

[Headnote 1]

Rule 70, N.R.C.P., provides that a judgment directing execution or delivery of documents

may be enforced by contempt. It does not appear that petitioners have, pursuant to Rule 73(d)

(3) N.R.C.P., sought a stay of execution of the judgment rendered in the trial court.

Enforcement of the judgment, pursuant to Rule 70 was, therefore, available to the trial court.

Closset v. Closset, 71 Nev. 80, 280 P.2d 290.

[Headnote 2]

Petitioners attack the jurisdiction of the trial court upon the ground of lack of notice. They

were not personally served with findings of fact and conclusions of law, judgment, motion to

hold in contempt or order to show cause. Service of these documents was, however, �� .��"��


made upon the petitioners' attorney of record in the action below. This is the prescribed

method of service under Rule 5(b) N.R.C.P.

Petitioners contend that contempt is a special proceeding; that at the least the motion and

order to show cause should have been served upon them personally. The California authority

they cite is not persuasive. California's secs. 1015, 1016, C.C.P. expressly except contempt

proceedings from its code provisions with reference to service upon counsel. Even so the law

of that state cannot be said to be clear. Smith v. Smith, 120 Cal.App.2d 474, 261 P.2d 567,

with considerable citation of supporting authority, holds service upon counsel to be sufficient

in contempt proceedings under the circumstances there considered.

Our sec. 5(b), N.R.C.P., does not provide for the California exception. Indeed in drafting

the Federal rules (from which our 5(b) was taken) such an exception was considered by the

advisory committee to the Supreme Court and was rejected. See Barron & Holtzoff, Fed. Pra.

& Proc., sec. 201. There can be no question but that in such a case as this where the contempt

proceedings are not original proceedings but are incidental to a pending cause, service upon

counsel of record was proper. Watkins v. Rives, (C.A.D.C., 1941), 125 F.2d 33; Ebert v.

Ebert, (C.A.D.C., 1945), 148 F.2d 226; Tilghman v. Tilghman, (D.C.D.C., 1944), 57 F.Supp.

417; and N.L.R.B. v. Hopwood Retinning Company, (C.A. 2, 1939), 104 F.2d 302.

[Headnote 3]

Petitioners next contend that the judgment is not susceptible of enforcement by contempt

for the reason that it is ambiguous in that it cannot be ascertained what notes the judgment

has reference to. The judgment upon its face does not appear ambiguous. Petitioners assert,

however, that as a matter of fact no notes exist precisely as described in the judgment.

Respondents assert that testimony in the court below in specific reference to notes �� %� ��"��"�


in the sums specified in the judgment removes any possible ambiguity. This issue, we feel,

should be first resolved by the trial court under its order to show cause.

Petitioners have raised other objections to the trial court's proceeding which do not reflect

upon its jurisdiction to act, but assert or anticipate error on its part. These matters we do not

feel it necessary to discuss.

Writ denied. Alternative writ dismissed.


____________

��72 Nev. 268, 268 (1956) Weeks v. Weeks��

DOROTHY C. WEEKS, Appellant, v.

RUSSEL S. WEEKS, Respondent.

No. 3928

October 26, 1956. 302 P.2d 750.

Appeal from Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.

Suit by wife for divorce involving questions affecting disposition of certain property as

either community or husband's separate property. The trial court entered decree, and wife

appealed. The Supreme Court, Badt, J., held, in part, that where husband, who had been

experiencing serious marital difficulties, registered securities which he had inherited from his

father in his and his wife's name, as joint tenants with right of survivorship and bank held

securities deposited under agency agreement whereby bank invested money subject to

directions of both husband and wife, fact that husband's motive in placing property in joint

tenancy was, inter alia, to avoid probate and administration of his estate in case of death

would not be such clear and convincing proof sufficient to rebut presumption of gift of

property to wife.

Affirmed in part. Reversed in part and remanded with instructions.

(Petition for rehearing denied December 10, 1956.)

��72 Nev. 268, 269 (1956) Weeks v. Weeks��

Robbins & Denton and F. Grant Sawyer, of Elko, for Appellant.

Vaughan & Hull, of Elko, for Respondent.

1. Husband and Wife. Where husband, who had been experiencing serious marital difficulties, registered securities which he

had inherited from his father in his and his wife's name, as joint tenants with right of survivorship, and bank

held securities under agency agreement whereby bank invested moneys subject to directions of both

husband and wife, fact that husband's motive in placing property in joint tenancy was, inter alia, to avoid

probate and administration of his estate in case of death, would not be such clear and convincing proof

sufficient to rebut presumption of gift of property to wife.

2. Husband and Wife.

Where husband registered securities which he had inherited from his father in his and his wife's name, as

joint tenants with right of survivorship, and bank held securities under agency agreement whereby bank

invested money subject to directions of both husband and wife, husband made delivery of gift of securities

to wife by delivering securities to bank, as agent for both husband and wife, within requirement that valid

gift needs immediate delivery.

3. Husband and Wife. In absence of clear and convincing proof to the contrary, the presumption of gift, arising from fact that

husband had registered securities which he had inherited from his father in his and his wife's name, as joint

tenants with right of survivorship, would prevail.

4. Husband and Wife. Fact that husband, who had created joint tenancy with wife of inheritance husband had received from his

father's estate, only intended, in creating tenancy, to avoid probate and administration of his estate in case

of death, and did not intend that wife should thereby acquire community interest in proceeds upon divorce,

would not destroy tenancy or avoid gift which he had thus made to wife of inheritance.

5. Husband and Wife. In suit by wife for divorce involving question whether cattle purchased by husband by draft on parties'

joint bank account were separate property of husband, in view of fact that husband had deposited

inheritance in overdrawn joint account shortly before he wrote check to pay for cattle, evidence sustained

finding that cattle were separate property of husband.

6. Divorce. In suit by wife for divorce involving question whether certain ranch property which wife desired to have

assigned to her in division of community property had been so organized �� %� ��

��72 Nev. 268, 270 (1956) Weeks v. Weeks��

and integrated into ranching unit that it could not be partitioned from other properties, evidence sustained

finding and judgment to this effect.

7. Divorce. The Supreme Court may not, in first instance, make disposition of community property between parties to

divorce suit; the trial court, under guidance of statutory provisions, must make such disposition.

OPINION


Dorothy C. Weeks, plaintiff and appellant, obtained a decree of divorce from Russel S.

Weeks, defendant and respondent. The pleadings and the pretrial order made by the trial court

put in issue the question as to whether certain securities, standing in the name of the parties as

joint tenants, and certain purebred cattle purchased by draft on their joint account were jointly

owned by the parties or comprised the separate property of the husband. The court made

findings of fact, conclusions of law and judgment to the effect that each of such items was the

separate property of the husband. For each of such findings the defendant assigns error. She

further assigns error in the court's finding and judgment to the effect that a certain ranch

property on which the parties had resided and which she desired to have assigned to her in

division of community property had been so organized and integrated into a ranching unit

with the other ranch properties that it could not be partitioned from the other properties. We

treat of these assignments separately.

1. This item involves certain securities comprising the capital stock of some twelve

corporations of the value of approximately $120,000, inherited by defendant from the estate

of his deceased father. Appellant concedes that these securities so inherited were the separate

property of defendant at the time of such distribution, but points out that subsequently thereto

the title to these �� .��

��72 Nev. 268, 271 (1956) Weeks v. Weeks��

securities was, at defendant's direction, changed and placed in the name of both parties as

joint tenants with right of survivorship. At the time of the trial the stock certificates remained

so registered. The pretrial order recited: “It is admitted all of the securities * * * are registered

as follows: Russel S. Weeks and Dorothy Weeks, as joint tenants with right of survivorship

and not as tenants in common.” These securities were held by the First National Bank of

Nevada, Reno, Nevada, under an “agency agreement.” This agreement, executed by Russel S.

Weeks and Dorothy Weeks, his wife, “as principals” and the bank “as agent”, called for the

holding, investment, disbursement or other disposition of the property deposited by the

principals, or its proceeds, upon the written order “of the depositors”; that directions to the

agent should be in writing “given by the depositors”; that the agent should not invest any

moneys subject to the agency except upon direction “of the depositors”; that the agent would

pay the income from the property “to the depositors” and would hold the same to the further

“order of the depositors”; that semiannual statements would be furnished “to the said

depositors”. The agency agreement further provided: “This agency may be terminated at any

time by either party upon written notice.” The term “either party” clearly refers to the

depositors on the one hand and the bank on the other. Upon termination of the agency the

property is to be returned “to the depositors”. Authorization to the agent to execute

certificates of ownership etc., as required by regulations of the treasury department, is given

by “the depositors”.

Respondent admits the presumption of gift arising out of these circumstances, Peardon v.

Peardon, 65 Nev. 717, 201 P.2d 309, but insists that such presumption is rebuttable (which is

not disputed), and that the same has been successfully rebutted by the following

circumstances, namely, (1) that there was no donative intent in the husband, (2) that there was

no delivery and

��72 Nev. 268, 272 (1956) Weeks v. Weeks��

that the so-called gift did not become immediately effective—all three of such elements being

necessary to a gift, and the failure of any one of them being destructive thereof. In contending

that there was no donative intent, respondent points to his testimony to the effect that he

desired to avoid costs of probate and administration in the event of his death and was advised

by his attorney (not his present counsel) that this could be accomplished by placing all of his

property in the “joint ownership” of himself and his wife, with the right of survivorship. This

was done. And we may note here that other real and personal property acquired by the parties

during coverture, and concerning the community nature whereof there is no question, was

likewise held by the parties in joint tenancy. In any event, we find nothing here but an

unexpressed intention (giving the testimony its fullest effect) that despite the transfer of the

securities to the parties in joint tenancy the respondent should remain the sole legal and

beneficial owner, or that it should be ineffective except in the event of his death. His wife

testified that he expressed no such intention to her and he did not deny this testimony. It is

further asserted by the husband that the relations of the parties at the time indicate the lack of

donative intent—that the parties were having serious marital and personal difficulties prior to

the time of transfer of the stock; that appellant was keeping a diary listing objectionable acts

on the part of respondent; that they had continual differences and arguments concerning their

son; that, as a matter of fact, respondent was looking to these securities to see him through his

old age in the event he should become incompetent as was the case with his father; that the

parties were also having disputes with reference to appellant's refusal to have more children.

Respondent insists that under such circumstances it is entirely unreasonable to credit him

with donative intent.

[Headnote 1]

It is our opinion, however, that the circumstances thus �� #�� $��

��72 Nev. 268, 273 (1956) Weeks v. Weeks��

recited fall far short of the “clear and convincing proof” essential to rebut the presumption of

a gift.

Nor are we impressed with the contention that there was no delivery. We have above

quoted some of the terms of the agency agreement with the bank. In this we find no

distinction whatsoever in the agency thus created on behalf of both parties as principals.

There was no greater possession or control in the husband than in the wife. The wife's

signature was, to a like degree with the husband's, essential in all instructions to the bank

concerning the handling of the securities. That respondent recognized this even at the time of

the trial is evident from his testimony. The securities were apparently transferred directly

from the estate of his father to appellant and respondent as joint owners, and respondent

testifies: “We had them transferred into a joint ownership * * * we deposited them in an

agency with the First National Bank in Reno. The ‘joint tenancy conversation' was had

concerning the securities shortly after we received them * * *. We had dividends coming. * *

* [An agency was recommended] that fit our purpose [under the agency agreement], that

would give us an accounting twice a year * * * and would deposit dividends to our account.

We held [certain later acquired bonds] and I took them to Reno to add to the stock account.”

[Headnotes 2, 3]

What has been said is an equal answer to the contention that the gift must fail because of

lack of immediate delivery. Such delivery was accomplished by delivery to the bank as agent

for both parties. In such lack of clear and convincing proof to the contrary, the presumption of

gift must prevail. Peardon v. Peardon, supra, and cases therein cited.

[Headnote 4]

Before leaving this subject, it may be well to comment on respondent's contention that he

never intended to ��

��72 Nev. 268, 274 (1956) Weeks v. Weeks��

effect such a title situation as now confronts him. In Mullikin v. Jones, 71 Nev. 14, 278 P.2d

876, 881, we used language which is rather apt here: “The benefits and dangers, the

advantages and disadvantages of joint tenancies by husband and wife have been for many

years the subject of wide discussion among lawyers, banks, trust companies and others, and in

later years with a special view to federal tax liabilities. A choice of the tenancy must be made,

and we may assume that it will sometimes be made inadvisedly or that later developments

may indicate that the choice seemingly advantageous at the time, has resulted in loss or

hardship.” Here the respondent by gift created a joint tenancy for the purpose of gaining

certain advantages which such tenancy provided. The fact that respondent had in mind the

advantages to be gained does not weigh against the creation of such a tenancy, but in its

favor. The fact that he did not have in mind the disadvantages of joint tenancy is unfortunate

but cannot act to destroy the tenancy or avoid the gift.

The trial court was in error in concluding that the securities standing in joint tenancy were

respondent's separate property.

Plaintiff's next assignment of error deals with the court's finding that certain purebred

livestock was the separate property of the husband.

In the pretrial order it was recited:

“In October, 1951 defendant received $31,815.59 from his father's estate. The check was

deposited in the joint bank account of the parties, which account at the time was overdrawn

$900. This deposit was October 25, 1951. On November 13, 1951 balance in the account was

$17,890. On that date there was deposited a check for $14,508.71, payment of ranch cattle

sold. Such ranch cattle were community property. In December, 1951, against plaintiff's

disapproval, defendant wrote checks for $16,855.00 to pay for a small herd of purebred cattle.

The market price for purebred cattle has depreciated.

��72 Nev. 268, 275 (1956) Weeks v. Weeks��

Of the remaining herd, and increase now on hand, the value is $8,400.00.”

After making findings of fact to the above effect, the court made its conclusions of law

which (after finding the securities to be the separate property of the defendant as above

discussed) found the purebred herd to be the separate property of the defendant.

The purebred cattle were purchased less than two months after the deposit in the bank of

the $31,000 inherited by defendant from his father's estate; defendant brusquely refused to

accede to plaintiff's suggestion that they acquire a new house with such moneys; he overruled

her protests against the purchase of the purebred cattle; he insisted that it was his business

and his cattle; he obtained certificates of registration of the purebred cattle (identified by

tattoo marks) in his individual name. When he deposited in the joint bank account the

proceeds of his inheritance, the community funds were exhausted—in fact, $900 overdrawn.

The community funds deposited to the joint bank account in the same period were for the

most part earmarked for specific purposes and were disbursed for such specific purposes. All

of the foregoing circumstances, including the tracing of the title to the cattle back to

defendant's separate funds, furnished ample support to the court's finding of his separate title

thereto.

[Headnote 5]

In assigning error in the court's finding that the purebred livestock were the separate

property of defendant, plaintiff contends that by depositing the money in the joint account

defendant made a valid, completed gift to plaintiff, and that the purebred cattle, purchased out

of such deposit became part of the community. In support of this assignment, she quotes the

following from Beach v. Holland, 172 Or. 396, 142 P.2d 990, 995, 149 A.L.R. 866 (which in

turn is a quotation from 7 Am.Jur. 304, Banks, 431): “The majority of cases, however, hold

that if the intention of the donor is to vest a present right �� %��

��72 Nev. 268, 276 (1956) Weeks v. Weeks��

to share in the deposits constituting the joint account, such an act constitutes a gift that can be

sustained.” The opinion opens with the statement: “The evidence clearly shows, and counsel

for the defendant concede in their brief, that the action of the deceased, in causing her bank

account to be changed to a joint account in the names of herself and the plaintiff, was taken,

not to serve the convenience of the deceased, but with a donative purpose.” The annotation to

the Beach case found at 149 A.L.R. 879 and supplementing the annotation in 48 A.L.R. 189,

66 A.L.R. 881, 103 A.L.R. 1123, and 135 A.L.R. 993, presents to us literally hundreds of

cases, under varying conditions, different theories, statutory provisions, relations of the

parties, presumptions to be indulged and the conclusiveness or rebuttability thereof, nature of

the contract with the bank when making the deposits, the distinctions between savings

deposits and commercial accounts (indeed the Beach case involved a savings account in

contrast to the nature of the instant account), yet appellant asks us to reverse the trial court

upon the citation of the Beach case alone, and in which the donative intent was conceded.

Respondent in turn has presented no authorities whatsoever and does not even comment on

the Beach case. Under the circumstances the court will undertake no individual research. In

the instant case the deposit in the joint account was as consistent with a purpose of banking

convenience for the depositor as with donative intent. Even if we assume the presumption of

gift in the nature of the deposit, the facts above recited are sufficient to rebut the theory of gift

and to support the court's holding of the defendant's individual ownership of the purebred

cattle. We accordingly find no merit in this assignment.

Appellant's third and last assignment of error is the court's refusal to assign to her a certain

ranch property on which the parties had resided, with reference to the entire inventory of real

and personal community property. The court found the ranch and range lands, buildings and

improvements, supplies and equipment to be ��/)B��<

��72 Nev. 268, 277 (1956) Weeks v. Weeks��

worth $180,000; livestock $56,008; a promissory note $12,000; cash on deposit $15,522.17;

an automobile $2,320; all of which, subject to an encumbrance of $45,000 for payment of the

Ralph ranch, left a net value in the sum of $220,850.17. The court then found: “The above

set-out ranch property has, since the acquisition of the Ralph ranch, the last of several ranches

acquired during the marriage, been organized and integrated into a ranching unit. This

ranching unit is capable of producing more cattle, when so operated, than the component

parts whereof would produce and support. A partition of these ranching properties would not

only decrease the value thereof, but would require the expenditure of a substantial sum of

money for the purchase of necessary equipment for fencing and the building of

improvements.”

[Headnote 6]

Although there is sentimental appeal in plaintiff's desire to have assigned to her the Ralph

ranch, heretofore owned by her parents, upon which she spent her childhood, sold by her

parents to herself and husband on very liberal terms, it cannot be said that the court's finding

is without substantial support in the evidence. This assignment of error is therefore without

merit.

A fourth assignment of error, having to do with the admission of evidence in connection

with the ownership of the securities, does not require consideration in view of our holding

upon that item.

[Headnote 7]

In remanding this case, a further observation is necessary. We have statutory provisions to

guide the court in making disposition of community property of the parties. No such

disposition may be made by us in the first instance. Our holding that the securities are the

joint property of the parties may well disturb the factual situation upon which the trial court

relied in making its final disposition of the property of the parties. On remand, therefore, the

trial court must be left at liberty ��

��72 Nev. 268, 278 (1956) Weeks v. Weeks��

to make a final order for such disposition, after such hearing and upon such notice to the

parties as may appear proper.

Reversed and remanded with instructions to modify the judgment by providing that the

securities therein listed are owned by the parties in the manner actually set forth in the First

National Bank of Nevada agency account No. 281, namely, by Russel S. Weeks and Dorothy

Weeks, as joint tenants, with right of survivorship and not as tenants in common, and for

further proceedings in accordance with this opinion.


____________

��72 Nev. 278, 278 (1956) Duffy v. Flynn��

PATRICK DUFFY, Appellant, v.

A. E. FLYNN, Respondent.

No. 3834

November 1, 1956. 302 P.2d 967.

Appeal from Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,

Department No. 2.

Action for damages for personal injuries under so-called guest-passenger statute. The

lower court entered judgment upon verdict which found plaintiff guilty of contributory

negligence, and plaintiff appealed. The Supreme Court, Badt, J., held that where person, who

was guest passenger in automobile owned and driven by friend, fell asleep when friend and

another left automobile to have a “drink,” and friend, though all had had several drinks, was

not intoxicated at time, and had previously driven carefully, guest was not on that account

guilty of such contributory negligence as would bar his recovery for injuries received in

accident following friend's intoxication after two hours' steady indulgence.


(Petition for rehearing denied December 19, 1956.)

��72 Nev. 278, 279 (1956) Duffy v. Flynn��

Foley Brothers, of Las Vegas, for Appellant.

Morse, Graves & Compton, of Las Vegas, for Respondent.

Automobiles.

Where guest passenger fell asleep when host and another left automobile to have a “drink,” and host

though all had had several drinks, was not intoxicated at time, and had previously driven carefully, guest

was not on that account guilty of such contributory negligence as would bar his recovery for injuries

received in accident following host's intoxication after two hours' steady indulgence and verdict, in

personal injury action, of contributory negligence was without factual support. N.C.L.1931-1941 Supp.,

sec. 4439.

OPINION


Appellant Duffy, as plaintiff below, has appealed to this court from a judgment in favor of

defendant pursuant to verdict of a jury. Plaintiff's action was for damages for personal injuries

under what is known as the guest passenger statute of the State of Nevada, being sec. 4439,

N.C.L., 1931-41 Supp. The jury drew its own form of verdict which was as follows: “Verdict.

We, the jury, after mature consideration of the evidence presented, find that the plaintiff

Patrick Duffy is not entitled to recover damages from the defendant, A. E. Flynn, by reason of

contributory negligence.” While several errors are assigned, the appeal is subject to

determination upon the single question as to whether the verdict finds any support in the

evidence. To this end an examination of the facts must be had, concerning which there is no

material dispute. Duffy, Flynn and one Ernest Rawlins had all come off night shift at 11:00

A.M., February 27, 1952, having worked that day from 3:00 A.M. Duffy met Flynn and

Rawlins in Las Vegas, and Flynn invited him to go for a ride with them in Flynn's car. He

accepted, they had one or two drinks, then drove some twelve miles to Pittman, stopped ��4+��

��72 Nev. 278, 280 (1956) Duffy v. Flynn��

there for about 45 minutes and had one or two more drinks there, after which they again

entered the car and drove to Lake Mead Lodge, arriving about two o'clock. Such part of the

trip was accomplished without incident. Defendant Flynn did the driving, apparently with

care and skill and without any recklessness or carelessness subjecting him to criticism of any

kind. At Lake Mead Lodge Flynn and Rawlins left the car and invited plaintiff to join them

“for a drink.” Plaintiff declined and went to sleep in the car. Defendant and Rawlins entered

the lodge and started drinking. How many drinks they had does not appear, but they were

drinking straight shots of whiskey and did not emerge from the lodge till about 4:30 or 4:45

P.M. Plaintiff was still asleep in the car. He was not awakened and apparently Flynn drove a

short distance to the boat docks at Lake Mead, which consumed some twenty minutes. From

there to the scene of the accident, which occurred about five o'clock, Flynn's driving revealed

his extreme case of intoxication. The car was weaving about the road and at one point went

completely off the road but without mishap and returned to the road. Thereafter on a straight

strip of highway Flynn drove off a steep incline, travelled a distance of about 250 feet,

whereupon the car jumped a ditch some four feet wide and finally came to rest. During all

this time Duffy was asleep in the back seat until he was awakened by being jolted to the floor

of the car. Flynn, after emerging from the car, staggered, reeled and weaved when he walked,

mumbled and was thick-tongued, and his breath smelt strongly of alcohol.

Defendant concedes that the jury's verdict implied a determination that he was intoxicated

at the time of the accident, but insists that its finding of plaintiff's contributory negligence is

supported by Duffy's negligent behavior in going to sleep in the car. This theory first appears

in defendant's answer as follows: “That plaintiff was guilty of negligence which was a

contributing cause of the accident and plaintiff's injuries, if any, in that ��

��72 Nev. 278, 281 (1956) Duffy v. Flynn��

at the time of said accident as aforesaid plaintiff, while being a guest passenger in said motor

vehicle was asleep in the rear seat of said vehicle, thereby failing to keep a proper and

necessary lookout for his own safety.” In his answering brief, this defense is expressed by the

recital of Duffy's knowledge of one or two drinks first had at Las Vegas, the drive to Pittman

following such drinks, then one or two drinks had at Pittman, followed by the drive to Lake

Mead Lodge, and the expressed intention of Flynn and Rawlins to go into the lodge and have

“a drink.”

Respondent concedes that appellant's going to sleep would not of itself constitute

contributory negligence “under circumstances that were such that there was no anticipation of

danger.” He insists, however, “that plaintiff had reason to anticipate danger—that defendant

might become intoxicated as a result of his indulgences, his own past and immediately

anticipated consumption of intoxicants.” We are entirely unimpressed by this argument. The

reasonably prudent man, in the absence of telepathic powers not ordinarily possessed by

mankind, could hardly be expected to anticipate at the time of his going to sleep that the

defendant, a man with whom he had ridden before without his committing any act evoking

criticism, who had up to then driven with due care, who was not then intoxicated, having

expressed an intention to have a drink, would spend upwards of two hours in drinking, would

become thoroughly intoxicated, would then proceed to drive his car in violation of law and,

without bothering to awaken plaintiff, would take him along without his consent or ability to

protest.

The jury verdict of contributory negligence is, then, wholly without factual support. The

trial court was in error in denying motion for new trial.



____________

��72 Nev. 282, 282 (1956) Globe Indem. v. Peterson-McCaslin Lumber Co.��

GLOBE INDEMNITY COMPANY, Appellant, v. PETERSON-McCASLIN LUMBER

COMPANY, a Nevada Corporation, and State of Nevada for the Use and Benefit of

Peterson-McCaslin Lumber Company, a Nevada Corporation, Respondents.

No. 3936

November 15, 1956. 303 P.2d 414.


Department No. 3.

Action by contractor's unpaid materialman against contractor's surety upon public works

bond. The lower court rendered, upon the pleadings, summary judgment for materialman, and

surety appealed. The Supreme Court, Merrill, C. J., held that, where contractor defaulted in

performance of contract with state highway department for certain construction work, and

surety was compelled to complete performance, surety's subrogation was not limited to rights

of the contractor, but surety was subrogated to right of state to apply the retent against cost of

completing performance, and, therefore, surety's right to retent was free from any claim

thereto which might be asserted by the materialman.

Reversed.

Vargas, Dillon & Bartlett and Alex A. Garroway, of Reno, for Appellant.

A. Dyer Jensen, District Attorney, Washoe County, of Reno, for Respondents.

1. Subrogation. Where contractor defaulted in performance of contract with State Highway Department for certain

construction work, and surety upon contractor's public works bond was compelled to complete

performance, surety was subrogated to right of state to apply the retent withheld by state against cost of

completing performance, and therefore surety's right to retent was ��"�� "��.��


free from any claim thereto which might be asserted by contractor's unpaid materialman. N.C.L.1929, secs.

5337-5340; N.C.L.1931-1941 Supp., sec. 5338; N.C.L.1943-1949 Supp. sec. 5337.

2. Principal and Surety. If contractor's surety, instead of performing contract, elects to pay damages, surety can be held for no

more than the amount which obligee would be compelled to pay to complete the work over and above the

amount which it had on hand at time of contractor's default, but, when this happens, surety receives benefit

of the unpaid current estimates as well as the retained percentages, and equity will not place surety who

performs the contract in a worse position than that he would have been in had he elected to respond in

damages.

OPINION


This is an action brought by respondent lumber company against appellant indemnity

company as surety upon a public works bond. From summary judgment in favor of the

lumber company, rendered upon the pleadings, the indemnity company has taken this appeal.

The sole question involved is as to the respective rights of the parties to that portion of the

contract price retained by the State as security for completion of the work by the contractor.

The lumber company asserts rights as an unpaid materialman. The indemnity company asserts

rights by subrogation.

One Mills entered into a contract with the highway department of the State of Nevada for

certain construction work. Pursuant to the provisions of secs. 5337-40 N.C.L. 1941, 1949

Supp. a bond was provided in the sum of $35,652, appellant indemnity company serving as

surety thereon. Sec. 5337, N.C.L. 1949 Supp., with reference to the bond required, provides

that 2/3 of the bond shall be conditioned upon full performance and 1/3 shall be conditioned

upon payment of those supplying labor and materials. The bond was conditioned accordingly.

The surety's limit of liability under the bond for unpaid bills for labor and material was thus

$9,836.51.


Mills defaulted in performance. Sec. 5338, N.C.L. 1941 Supp., provides that in making

progress payments ten percent shall be withheld until the work is satisfactorily completed and

accepted by the State; that should it become necessary for the State to take over the contract

for completion the amount withheld shall first be applied toward the cost of completion.

Upon Mills' default the State made demand upon the indemnity company that it complete

performance pursuant to its obligation as surety. This the indemnity company did, expending

(according to the allegations of its answer) more than the amount of the State's retent in such

performance. The amount of the retent was then paid to it by the State.

At the time of Mills' default certain materialmen remained unpaid, among them being

respondent lumber company. The total amount of unpaid bills was more than the surety's

liability under the bond of $9,836.51. Payment of this amount, pro rata to the creditors, was

tendered by the surety and such payment was rejected by the lumber company, which

demanded payment in full. It contended that it had an equitable right to the retent to the extent

of full payment of its bill, which right was superior to that of the surety.

Such was the holding of the trial court. In support of such holding respondent relies upon

American Surety Company v. Westinghouse Manufacturing Company, 296 U.S. 133, 80

L.Ed. 105, 56 S.Ct. 9.

That case, as does the one before us, involved a dispute between the surety and unpaid job

creditors as to their respective rights to the retent. (It thus differs from Union Indemnity

Company v. Drumm, 57 Nev. 242, 252, 62 P.2d 698, 70 P.2d 767.) In the American Surety

Company case, as here, although the surety had paid job creditors to the extent of its liability

under the bond, the creditors' claims were not discharged in full. The Supreme Court held the

surety not entitled to the retent. It stated [296 U.S. 133, 56 S.Ct. 11], “A surety who has

undertaken to pay the creditors of the principal, though ��"��


not beyond a stated limit, may not share in the assets of the principal by reason of such

payment until the debts thus partially protected have been satisfied in full. This is the rule

where the right to a dividend has its basis in the principle of equitable subrogation. ‘A surety

liable only for part of the debt does not become subrogated to collateral or remedies available

to the creditor unless he pays the whole debt or it is otherwise satisfied.'”

In that case, however, the contractor had completed performance. The surety's rights by

subrogation arose solely by virtue of its partial payment of creditors' claims. The subrogation

was solely to the right of the contractor to the retent which right was held subject to the

contractor's duty to pay the creditors in full.

[Headnotes 1, 2]

In the instant case the surety was compelled to complete performance. Its subrogation was

not limited to the rights of the contractor. It was subrogated to the right of the State to apply

the retent against the cost of completing performance. Prairie State National Bank v. U.S.,

164 U.S. 227, 41 L.Ed. 412, 17 S.Ct. 142. As stated in Lacy v. Maryland Casualty Company,

4 Cir., 32 Fed.2d 48, 51, “If the surety, instead of performing the contract, elects to pay

damages, it can be held for no more than the amount which the obligee is compelled to pay to

complete the work over and above the amount which it has on hand at the time of the

principal's default, for this is all the damage that the surety sustains. But when this happens

the surety receives the benefit of the unpaid current estimates as well as the retained

percentages. Equity, of course, will not place him in worse position where he performs the

contract of the principal in accordance with his obligation than where he elects to respond in

damages. * * * The right of the casualty company to subrogation entitled it to be substituted

to the right which the highway commission might have asserted against these funds.”


The surety's rights by subrogation were not, then, limited by any rights which the creditors

might have asserted against the contractor. Its right to the retent is free from any claim thereto

which might be asserted by respondent lumber company.

The lumber company disputes the surety's contention that cost of completion exceeded the

amount of the retent. We do not feel it necessary to dispose of any issues of law which might

arise should the lumber company prevail in this regard. The extent of the cost of completion

is a question which should first be resolved by the trial court.

Reversed and remanded with instructions that summary judgment be set aside and for

further proceedings.


____________


HELEN WANEMA LAWRENCE, Defendant, Appellant, v. THE STATE OF NEVADA,

Plaintiff, Respondent.

No. 3872

November 27, 1956. 303 P.2d 704.

Defendant was convicted in the Eighth Judicial District Court, Clark County, Department

No. 3, Ryland G. Taylor, J., of murder in the first degree, and she appealed. The Supreme

Court, 72 Nev. 243, 302 P.2d 285, reversed and remanded for new trial. On the State's

petition for rehearing, the Supreme Court, per Eather, J., adhered to its original opinion that

extent of provocation, state of defendant's mind, and existence or lack of wilfullness,

deliberation, and premeditation necessary to first degree murder could not be determined

without knowledge of basis of fatal dispute, and that where such dispute related directly to

earlier differences between ��


parties, it was reversible error to deprive jury of knowledge as to nature of earlier differences

between defendant and the victim, who was her divorced husband.

Petition denied.

Jones and Pursel, of Las Vegas, for Appellant.

Harvey Dickerson, Attorney General, George M. Dickerson, District Attorney, Clark

County, Gordon L. Hawkins, Deputy District Attorney, Clark County, for Respondent.

Homicide.

Extent of provocation, state of defendant's mind, and existence or lack of wilfullness, deliberation, and

premeditation necessary to first degree murder could not be determined without knowledge of basis of fatal

dispute; and where such dispute related directly to earlier differences between parties, it was error,

requiring reversal of first degree murder conviction, to deprive jury of knowledge as to nature of earlier

differences between defendant and the victim, who was her divorced husband.

Opinion Denying Petition for Rehearing


On petition for rehearing the State has directed our attention to an erroneous statement in

our opinion as to the facts established by the record. We stated that, following the divorce of

the parties, the defendant continued to live in their home until ejected by deceased in January,

1954. The record shows that during this period of time she kept her clothing and personal

effects in the home but, for the most part, was traveling and lived elsewhere, returning to the

home occasionally. This error does not affect our decision.

The State directs our attention to the fact that certain of the matters which we stated the

defendant had offered to prove were not rejected by the court but were admitted in evidence.

The matters so specified were minor and ��


such correction would not affect our decision. The essentials of the defendant's offer of proof

were never admitted in evidence.

The State contends that the offer of proof upon which defendant's assignments of error

were based was a single, comprehensive offer in narrative form which included within it

certain matters already admitted in evidence and other matters which were inadmissible; that

under the circumstances it was not error to reject the offer in its entirety. However, as to the

matters specified in defendant's assignments of error, the action of the court was not limited

to the comprehensive offer of proof. Time after time the court rejected offered testimony

relating to the divorce agreement of the parties, the collateral promises of the deceased with

reference to the home, and the repudiation of those promises at the time defendant was

ejected from the home.

The State contends that, in any event, such evidence was inadmissible for the reason that it

related to occurrences which could not, as a matter of law, constitute provocation since they

were entirely too remote from the time of the shooting; that acts of provocation to be relevant

must be shown to exist at the time of the shooting. Our opinion, perhaps, was not clear in

expressing the relevancy of such testimony.

The record establishes that the shooting occurred in conjunction with a dispute between

the parties. Defendant testified as to that dispute as follows: “I told him he would have to

make things right with me or we would go to court over it and he said to me, ‘You won't live

long enough to take this fraud suit to court. I'll certainly see to that.' I got out of the car and he

was shaking me and I got hold of his arm. He said, ‘Your body will be found out on the desert

and people will be wondering what happened to you.' That's all I know.”

The fatal dispute, then, related directly to the earlier differences between the parties, the

nature of which was unknown to the jury. The extent of the provocation, the �� .��


state of defendant's mind, and the existence or lack of the wilfullness, deliberation, and

premeditation necessary to first degree murder could not be determined without knowledge of

the basis of the dispute. The defendant was entitled to have the jury determine whether the

dispute “in connection with the former relation of the parties as shown by the excluded

testimony furnished an adequate cause and brought about a condition of mind in appellant

which would have reduced the homicide.” Ward v. State, 96 Tex.Cr.R. 278, 257 S.W. 536,

538.

Petition denied.


____________

��72 Nev. 289, 289 (1956) Turrillas v. Quilici��

AGUEDA TURRILLAS, Individually and as Administratrix of the Estate of Felix Turrillas,

Sr., Copartners Doing Business Under the Firm Name and Style of BIG MEADOWS

HOTEL, Appellants, v. MAMIE QUILICI, as Administratrix of the Estate of Louis

Quilici, Deceased, MAMIE QUILICI, Individually, JOHN DOE, MARY ROE, AND

LENA BUCKMASTER, Respondents.

No. 3819

November 27, 1956 303 P.2d 1002

Appeal from the Sixth Judicial District Court, Humboldt County; Merwyn H. Brown,

Judge.

Proceeding by plaintiffs to establish an easement by prescription on the property of

defendants, adjoining landowners. The trial court held for the defendants and plaintiff

appealed. The Supreme Court, Eather, J., held that where there was no proof of an actual

claim of � ��


adverse right, determination that presumption of permissive use of an L-shaped area running

around the projecting portion of plaintiffs' property had not been rebutted was justified.


Peter Echeverria, of Reno, for Appellants.

Goldwater, Taber & Hill, of Reno, for Respondents.

1. Easements. Generally open and notorious use of property for an extended period creates a presumption that use was

adverse.

2. Easements. Where a roadway is established or maintained by a landowner for his own use, the fact that his neighbor

also makes use of it, under circumstances which in no way interfere with use by the landowner himself,

creates a presumption that neighbor's use was not adverse but is permissive and the result of neighborly

accommodation on the part of the landowner, but presumption is rebuttable.

3. Easements. Where there was no proof of an actual claim of adverse right, in a suit to establish easement by

prescription to an L-shaped area running around projecting portion of plaintiffs' property, trial court's

determination that presumption of permissive use was unrebutted was justified.

OPINION


This is a right-of-way dispute. Appellants, as plaintiffs, brought suit to establish an

easement by prescription over property of the respondents. The lower court held for the

respondents and this appeal has been taken from that judgment. The sole question involved is

whether appellants as plaintiffs have established that their user was adverse.

The parties are owners of adjoining premises in the city of Lovelock. Appellants and their

predecessors in interest for many years have operated the Big Meadows Hotel upon their

property. Respondents own business property adjoining on the south. A public alleyway runs��


north and south, behind (to the west of) respondents' property, coming to a dead end at

appellants' property. Between the two parcels a 5-foot right-of-way running east and west for

the use of both parcels has been created by a mutual grant of two and a half feet from each

parcel. Its easterly terminus is at West Broadway Street. Due to a projection of appellants'

property this right-of-way does not reach the alley but also comes to a dead end at appellants'

property line. Respondents and their predecessors have so maintained their property that an

open L-shaped area running around the projecting portion of appellants' property serves to

connect the right-of-way and the alley. This area has been used in conjunction with the alley

and the right-of-way by both parties and to a certain degree by members of the public.

Appellants have shown extensive and continuous use by tradesmen in making delivery to the

hotel. Such use has been made for more than 30 years. It is over this L-shaped portion of

respondents' property that appellants seek to establish their prescriptive right-of-way.

[Headnote 1]

Appellants claim that their open and notorious use of respondents' property for such an

extended period creates a presumption that their use was adverse and was asserted by them as

a matter of right. Such is the general rule. Chollar-Potosi Mining Co. v. Kennedy & Keating,

3 Nev. 361. The presumption, however, does not apply in every case. As stated in Howard v.

Wright, 38 Nev. 25, 143 P. 1184, 1187, “[The] mere use of a passage over another's land for a

long time with his knowledge is not necessarily an adverse use. The circumstances may be

such as to authorize an inference that the use is adverse but they may also be such as to

intimate that the use was by permission.”

[Headnote 2]

Where a roadway is established or maintained by a landowner for his own use, the fact that

his neighbor also makes use of it, under circumstances which in no �"�� "��


way interfere with use by the landowner himself, does not create a presumption of

adverseness. The presumption is that the neighbor's use is not adverse but is permissive and

the result of neighborly accommodation on the part of the landowner. Howard v. Wright,

supra. See Anno. 170 A.L.R. 825.

The presumption is rebuttable. In this case, however, the facts proven are in no respect

inconsistent with an acceptance by appellants of the neighborly accommodation of

respondents.

[Headnote 3]

There is no proof of an actual claim of adverse rights. Each party relied on a number of

unconnected incidents as proof of his theory of the nature of user. Respondents point out that

they posted a sign in the area “Private Property, Permission to pass revocable at any time”;

that they also constructed a fence and gate in the area which they insisted they had a right to

maintain and which was kept locked; that on occasion they stopped traffic from going

through. Appellants, on the other hand, claim that the private property sign was knocked

down, pushed aside and otherwise ignored, and that the fence and gate were removed and did

not hinder traffic. It was clearly available to the lower court as trier of the facts to weigh the

testimony of the witnesses as to these and other incidents and to conclude that the

presumption of permissive use continued, unrebutted, to control.



____________

��72 Nev. 293, 293 (1956) Gershenhorn v. Stutz��

SOL GERSHENHORN and D. H. CAPLOW, Appellants, v. WALTER R. STUTZ

ENTERPRISES, a Limited Partnership, WALTER R. STUTZ and LOUIS STUTZ,

Respondents.

No. 3981

November 30, 1956 304 P.2d 395

Appeal from judgment of Eighth Judicial District Court, Clark County; Harry M. Watson,

Judge of Seventh Judicial District, presiding.

Action by lessors for declaration of rights of parties under a lease and option, for

cancellation of the lease, restitution of the premises and damages. The lower court entered

judgment awarding lessors $225,000 damages and lessees appealed. The Supreme Court,

Badt, J., held that evidence was sufficient to support findings that building, which lessors

agreed to construct, was substantially completed and ready for occupancy in accordance with

agreement of the parties, that lessees entered into occupancy thereof, and that lessees were in

default in the performance of numerous covenants of the lease, and also to support findings

that lessors were only entitled to damages in the amount of $100,000 for past-due rentals and

$75,000 for excess costs of structure under terms of contract.

Modified, and affirmed as modified.

(Rehearing denied January 29, 1957. See 72 Nev. 312 for Opinion.)

(Certiorari denied by United States Supreme Court June 17, 1957.)

Harry E. Claiborne, of Las Vegas, and Alvin Gershenson, of Chicago, Illinois, for

Appellants.

Morse, Graves & Compton, of Las Vegas, and W. Bruce Beckley, of Las Vegas, for

Respondents.


1. Declaratory Judgment. In action by lessors for declaration of rights of parties under a lease and option, for cancellation of the

lease, restitution of the premises and damages, on ground lessees had defaulted under the lease, evidence

was sufficient to support findings that building, which lessors agreed to construct, was substantially

completed and ready for occupancy in accordance with agreement of the parties, that lessees entered into

occupancy thereof, and that lessees were in default in performance of numerous covenants of the lease.

Laws 1953, c. 284, sec. 1 et seq.

2. Appeal and Error. The Supreme Court cannot substitute its judgment for that of the trial judge as to weight to be given to

evidence.

3. Landlord and Tenant. Where, under terms of lease, lessors were obliged to obtain from county authorities certain certificates of

occupancy, but delay or failure of lessors to fully perform that covenant was in turn caused by failure of

lessees to complete lease terms which fell under their own responsibility, substantial compliance by lessors

was all that was required of such covenant.

4. Landlord and Tenant. Where lease and option to purchase both rested upon a common and indivisible consideration, which was

the performance by the lessees of lease covenants including payment of rent, and lessors gave notice of

cancellation upon lessees' default in payment of rent, and such cancellation was in accordance with terms of

lease, lease was thereby terminated, and right to exercise option thereupon ceased.

5. Landlord and Tenant. Where purported exercise of option to purchase leased property was contingent upon determination of

issues already raised and pending in suit between lessors and lessees, lessees who attempted to exercise the

option, failed to unequivocally offer to purchase the property in accordance with the terms of the option,

and consequently no bilateral contract came into existence between lessors and lessees and option could

not be considered as exercised.

6. Appeal and Error. Where defendants failed to make motion for dismissal of action upon ground of misjoinder of parties

plaintiff in trial court, and question was raised for first time on appeal but it was not shown how asserted

misjoinder was prejudicial, assignment of error was without merit. Rules of Civil Procedure, Rule 21.

7. Appeal and Error. Where defendants, who had waived joinder of alleged essential parties defendant in trial court, contended

on appeal that waiver could not bind other parties and that court should have joined them of its own

motion, but no argument was advanced in support of this contention, and there was no �� %� �� "��


showing of prejudice resulting to named defendants or to other persons purportedly interested with them in

the enterprise, failure of trial court to join such parties was not reversible error.

8. Cancellation of Instruments. Where pleadings alleged that $47,500 had been advanced on note which lease, incorporated into the

complaint, required lessors to give to lessees, but that there had been a default in the advance of $12,500

on the note, and both lessees testified to the making of the loan, and the matter of the note was the subject

of considerable examination, there was not a fatal variance between pleadings and proof with reference to

part of judgment ordering cancellation of the $47,500 note. Rules of Civil Procedure, Rule 15(b).

9. Declaratory Judgment. In action by lessors for declaration of rights of parties under lease and option, for cancellation of lease,

restitution of premises and damages, evidence was sufficient to support award of damages to lessors in the

amounts of $100,000 for past-due rentals, $75,000 for excess costs of structure under terms of contract, but

was insufficient to support finding of $50,000 damages for costs of defending numerous foreclosure actions

damages for costs of defending numerous foreclosure actions for labor and materials for which lessees

were responsible under the lease.

OPINION


In this action, by a landlord for a declaration of the rights of the parties under a lease and

option, for a cancellation of the lease, restitution of the premises and damages, the main

questions presented on this appeal are as follows: (1) Is there substantial evidence to support

the trial court's findings that the building, which the lessors agreed to construct, was

substantially completed and ready for occupancy in accordance with the agreement of the

parties; that the lessees entered into occupancy thereof and that the lessees were in default in

the performance of numerous covenants of the lease? (2) Was “substantial compliance” by

the lessors sufficient to entitle them to relief or were certain covenants on their part to be

performed such conditions precedent as to require an exact and complete performance?


Was the option to purchase, contained in the lease, such an independent, separate and

severable contract as to entitle the lessees to exercise such option despite their default in

payment of rents and in the performance of other covenants of the lease? (4) Did the lessees

effectively exercise their option to purchase in accordance with the terms of the lease? (5)

Was there a fatal misjoinder of parties plaintiff? (6) Was there a fatal nonjoinder of parties

defendant? (7) Was there a fatal variance between the pleadings and the proof? (8) Is there

support in the record for the items of damage found by the court in the respective sums of

$100,000 past-due rentals, $75,000 excess costs of the structure under the terms of the

contract, and particularly $50,000 damages reflecting the finding of fact that the lessors were

compelled to defend at their own cost numerous lien foreclosure actions for labor and

materials for which the lessees were responsible under the lease? Our disposition of some of

these questions will eliminate the necessity for any extensive treatment of others. Some

additional incidental points are also involved. In the following statement of facts we shall, for

the most part, refer to the plaintiffs and respondents as the lessors and the defendants and

appellants as the lessees.

Appellant Caplow, by assignment, replaced one O'Connor as one of the original lessees.

On February 12, 1954, the lessors leased to the lessees certain real property in Clark County,

Nevada, described by metes and bounds, for which the lessees agreed to pay $5,000 a month

rent for five years “beginning when the premises and building being constructed by lessors

for lessees is completed, ready and approved for occupancy.” The lessors represented that the

zoning and other classification of the premises permitted the “erection, construction and

operation of a building and appurtenances which shall be used for legal gambling and other

incidental purposes in accordance with the laws of the State of Nevada.” The size of the

building was agreed upon and its use described as for cocktail lounge, coffee shop, gambling��


casino and incidental purposes, with road approaches, driveways, parking facilities and

landscaping to the satisfaction of the lessees, as well as facilities for sewage disposal, water,

electrical and other utilities and facilities. The lessors were not required to furnish the air

conditioning, heating or ventilating units, trade fixtures or outdoor neon signs, but were to

provide the necessary outlets and openings therefor. The lessors agreed not to permit

mechanics' liens to be filed against the premises and to pay promptly for all labor and

materials. The lease provided further: “The lessors agree that all improvements, installations

and repairs made by them shall be approved in respect to inflammability and safety to the

public before the premises are open to the public by some person granted authority to do so

by the County of Clark, State of Nevada, and if there is no such authorized person, then by a

person or agency qualified to do so by reason of experience in fire protection.” The lease

further provided that in default of payment of rent for 30 days or the breach of any other

covenant for 60 days after notice, the lessors might cancel and terminate the lease and reenter.

The lease provided further: “Lessees agree that if a valid execution or other process be levied

upon the interest of the lessees or shall not be cured, removed or satisfied within 90 days * *

*,” the lessors should have the right to cancel the lease and reenter. A successful action by the

lessors against the lessees would entitle the lessors to a judgment for attorney fees as part of

the costs. There was a corresponding reciprocal clause for the lessees.

Paragraph 28 of the lease reads in part as follows: “Lessees * * * are hereby given the

option for three years from completion of the building to be erected * * * to purchase the

entire premises * * * at the price and value of $417,000 * * * plus a sum equivalent to the

cost of the improvements to be erected * * * ascertained by the production of the records of

the lessors * * *. Such option may be exercised by the lessees as aforesaid, by written notice

to the ��


lessors or their assigns, at any time within such 3-year period.”

On May 19, 1954, an amendment to the lease was executed in which the size of the

building to be constructed was increased, the date of completion extended to July 15, 1954,

and the cost fixed at not more than $123,200, plus excess costs of construction not to exceed

$12 per square foot. To the $5,000 monthly rental was added an additional sum of 20 percent

of the net profits of the business conducted on the premises, subject to certain reductions and

conditions. This provision apparently never came into effect. It was further provided that if

the business to be conducted should not commence within 6 months from completion of the

building, the lease might be terminated at the option of the lessors, in which event, however,

they were to reimburse the lessees for the latter's costs of furniture, fixtures, equipment,

supplies etc. The amendment provided further that if the lease were assigned to a limited

partnership in which the lessors should hold a 20 percent interest, a three-year option was

given to such limited partnership to purchase the premises for $750,000. This provision never

became effective. The lessees agreed to lend the lessors $60,000 to assist in the construction

of the premises, to be evidenced by noninterest bearing notes payable on or before five years.

Of this sum $47,500 was advanced and the notes were given.

A second written amendment was executed June 12, 1954, which permitted the lessees to

erect at their own costs a theater and restaurant building to be attached to the casino building.

This would involve no further rentals and would add no additional amount to the option price.

Date for completion of construction and delivery of possession was extended to September

10, 1954. On or about that date a notice of completion of construction was filed and the

lessors served the lessees with a written notice thereof, and with notice of the additional

construction costs subject to the limitations of the contract, �� /(+�)(��'��"��


computed according to figures submitted to be the sum of $65,163.32, payment of which sum

was demanded.

The original complaint in the action filed December 4, 1954, alleged accrual of rentals

from September 10, 1954, to date, and two supplemental complaints alleged the further

accrual of rentals, default in payment and default in the obligation to commence business

within six months, in addition to default in payment of construction costs, discharge of liens,

etc.

The lessees and defendants, Caplow and Gershenhorn, appellants herein, answered

separately, denied the material allegations of the complaint, alleged default of the lessors in

not completing the building, alleged conspiracy and fraud to deprive the lessees of the

building and counterclaimed for damages in the sum of $547,500, plus $200,000 additional

damages for failing to carry out an oral agreement for the acquisition and assignment of a

lease on certain neighboring premises. Further pleadings put all of these matters at issue.

The case was tried to the court without a jury and after submission on briefs, it appears

that the court filed a written decision, into which the learned trial judge incorporated findings

of fact and conclusions of law drawn by him. In these findings the court found that the

structure was substantially completed and ready for occupancy as of September 10, 1954, and

that any delay was the result of numerous changes of plans by the lessees; that notice of

completion was given and that the lessees entered into possession September 10, 1954, and

that no part of the $5,000 monthly rentals has been paid; that the lessees failed to pay the

excess costs; that they failed to advance $12,500 of their agreed $60,000 loan; that they failed

to commence business within six months after completion or at all; that they failed to keep

the premises clear of mechanics' and materialmen's liens; that the lessors were compelled, to

their damage, to defend numerous lien foreclosure actions; that the lessors had received from

the lessees $47,500 of the agreed $60,000 loan and had signed notes for the �� <


sums received; that excess costs of the structure, payable by the lessees under their

agreement, had actually been paid by the lessors in the sum of $75,220, subject to certain

credits; that the lessees were in default under the lease agreement at the time they attempted

to exercise the purported option; that, except as specifically found, the allegations and denials

of the counterclaim were untrue.

As conclusions of law the court found the lessors, respondents herein, entitled to judgment

for $100,000 past-due rentals, $75,000 excess costs of the structure under the agreement,

$50,000 damages, subject to credit of $47,500 for advances on the notes, and entitled to the

surrender and cancellation of the $47,500 notes; plus the plaintiffs' costs including an attorney

fee in the sum of $10,000.

These conclusions of law were written into a formal judgment except that the item of

$50,000 damages, less credit of the sums advanced on the notes, was written as a judgment

for $2500 damages, plus the surrender and cancellation of the notes. The judgment also

ordered cancellation of all of the agreements and that a writ of restitution issue.

[Headnote 1]

(1) The main assignment of error by appellants is that the evidence does not support the

court's findings of fact. They repeatedly call attention to the frank statements of respondents

that a number of items of construction required completion. The record, however, is replete

with the testimony of the respondents and their witnesses amply sustaining the trial court's

view that such items (except as to certain trivial matters) were entirely the responsibility of

appellants. It will be recalled that the second amendment to the lease permitted the appellant

lessees, at their own cost, to build a theater cafe. This required substantial revision of the

casino building itself. The kitchen was increased to about ��!��


double size, which in turn necessitated the opening up of the plumbing. New openings in the

walls had to be constructed, present openings had to be closed. The bar was moved to the

opposite side of the building. The electrical plans were drastically changed. The spot lights,

the projection room, the stage lighting, etc., required a large power substation to take care of

the two buildings. The original power plans were entirely inadequate to the added load. It was

items such as these and numerous others that had not been completed. There was ample

testimony, which the court apparently decided was credible, to the effect that lessees had

agreed to defray the costs of all such items. Other changes in plans made by the lessees were

the cause of the delaying of the completion date from June to July and eventually to

September 10, 1954. To consider in detail the five large volumes of record and the many

exhibits would prolong this opinion without necessity or purpose. Many of the contentions of

respondents are not disputed, many of them are the subject of much conflicting testimony.

Under such condition of the record we shall not disturb the finding. Friendly v. Larsen, 62

Nev. 135, 144 P.2d 747. The same thing applies to substantiation of the default of the lessees

in the performance of their covenants. Not any of the $5,000 monthly rentals had been paid.

The lessees had not opened for business within six months after completion. Accounts

submitted by the lessors showed that the lessees, after being credited with all payments made

by them, had not paid the construction costs as agreed. They had failed to obtain the

necessary gambling licenses from the Nevada Tax Commission, Stats. 1953, 439, to authorize

them to open up their gambling casino. They had not completed the construction of the

theater restaurant.

[Headnotes 2, 3]

(2) Pointing to a number of unfinished details and pointing particularly to the alleged

failure of the lessors ��"��"�


to obtain from the county authorities certain certificates of occupancy, appellants contend that

the theory of substantial compliance does not apply, but that the performance of these

covenants is a condition precedent to plaintiffs' right of recovery. They refer particularly to

the covenant that rental was to begin under the lease “when the premises and building being

constructed by lessors for lessees is completed and ready for occupancy”; that “the lessors

agree that all improvements, installations and repair made by them shall be approved in

respect to inflammability and safety to the public before the premises are open to the public

by some person granted authority to do so by the County of Clark, State of Nevada, and if

there is no such authorized person, then by a person or agency qualified to do so by reason of

experience in fire protection”; that under the uniform building code of Clark County no

building on structure may be occupied without a certificate of occupancy issued by a building

official; that it was admitted that even after September 10, 1954, the electrical and plumbing

inspector certified: “1. The substation is not completed. 2. The electric in building is not

completed. 3. The plumbing in building is not completed. 4. The kitchen is not completed. 5.

The dining room and theater is not completed in any detail.” It may be noted in response to

this contention, however, that each of these items was the obligation of the lessees and was

not the obligation of the lessors. Many pages of testimony and numerous exhibits were

devoted to these items and we cannot substitute our own judgment for that of the learned trial

judge as to the weight to be given to this evidence. The official building inspectors testified

that as of September 10, 1954, they would have recommended the issuance of a certificate of

occupancy if the lessees had completed their changes in the kitchen and electrical system. The

architect on the project likewise testified that on that date the building was substantially

completed and he would give an architect's certificate of completion. Delay or failure in

obtaining such certificate can hardly be �� "�� "�� "�� "�


urged by the lessees when such delay or failure was the result in turn of the failure of the

lessees to complete the very items which fell under their own responsibility. There was ample

support for the court's finding of substantial compliance and for its conclusion that substantial

compliance was all that was required. Sharp v. Twin Lakes Corporation, 71 Nev. 162, 283

P.2d 611.

Respondents point out that even assuming a failure of completion of the building, such

failure was waived because the lessees went into possession and thereby became liable for the

rent. Anno. 28 A.L.R.2d 458. They point out that the keys were delivered to appellants, who

thereupon began installation of fixtures, bars, carpets, booths, stage curtain, stools, slot

machines and gambling equipment; that they opened their offices on the second floor,

installed a telephone, employed an operator, publicity men etc., and carried on all operations

available to them prior to opening. However, in view of our holding that there was ample

support of the court's findings of substantial completion, it becomes unnecessary for us to

pass on the question of waiver.

[Headnote 4]

(3) Appellants assert that they exercised their option to purchase; that it was an

independent, separate and severable contract not dependent upon the lessees' performance of

the covenants of the lease; that upon such exercise the rentals ceased, as the contract then

became one of seller and buyer and no longer one of lessor and lessee. Under some

circumstances this might be so. See Murfee v. Porter, 96 Cal.App.2d 9, 214 P.2d 543. Here

the lease and option to purchase both rested upon a common and indivisible consideration.

This consideration was the performance by the lessees of the covenants of their lease,

foremost of which was the payment of rent. As the lessees were in default in payment of rent

and as the lessors gave notice of cancellation by reason thereof and as such cancellation was

in accordance with the terms thereof, the lease was thereby terminated, and, ��


the lease being terminated, the right to exercise the option ceased. Estfan v. Hawks, 166

Kans. 712, 204 P.2d 780, 10 A.L.R.2d 877.

[Headnote 5]

(4) For a further equally impelling reason the purported exercise of the option to purchase

cannot prevail. It will be recalled that the action was commenced December 4, 1954, alleging

completion of the building September 10, 1954. The defendants answered on March 15 and

March 17, respectively, putting in issue all of the matters hereinabove discussed with

reference to the completion of the building. On March 21, 1955, after such issues had been

framed, and six months after plaintiffs claimed completion and delivery of the premises,

Caplow, one of the lessees, handed to the lessors a letter comprising some 1300 or 1400

words stating: “This is to advise that as lessee under the lease dated February 12, 1954, I have

elected to exercise the option to purchase the premises and property containing all buildings

and appurtenances described as: [description] in accordance with paragraph 28 of said lease

at the price of $417,000 plus a sum equivalent to the cost of the improvements erected by

lessors upon said premises; that is, the casino building and appurtenances, and in connection

with the exercise of said option, I call your attention to the following matters.” The letter then

listed under separate captions carpentry work, electrical work, plumbing, painting, insulation,

staining of roof, landscaping etc. It then refers to sundry paragraphs of the lease requiring the

improvements to be made in accordance with applicable city, county and state laws,

ordinances, codes, regulations etc., and alleges the failure of the lessor to procure certificates

of occupancy from the building commission, the fire department, the health department, etc.

Demand was made for the completion of said building in all of the respects mentioned. The

letter analyzed and defined the provisions of the lease, demanded a preliminary title report,

outlined the matters to be contained therein, and called attention to the covenant of the lessors

not to ��.��


permit mechanics' liens to be filed, etc. Attention was then called to the provision of the lease

that rental was to begin only upon completion of the building and was to cease on exercise of

option to purchase. Reference was then made in the letter to certain credits against the option

price of $417,000 and concludes: “We have arranged for deposit of the option price with

Tannen Investment Company, 139 South Beverly Drive, Beverly Hills, California, and will be

prepared to deposit the option price in an escrow company to be mutually agreed upon,

located in Las Vegas, Nevada, or in California.”

Thus the so-called election to purchase put in issue the very matters already in issue under

the pleadings in the pending suit in the district court. It is hardly conceivable that these issues

could be tried out in any other tribunal while such suit was pending. The letter was handed to

the lessors in the midst of one of the proceedings of that very action, namely, during the

taking of a deposition. It was by its very terms contingent upon the determination of the

issues already raised in the pending suit. The statement that the lessees “will be prepared to

deposit the option price in an escrow company” cannot be considered otherwise than as being

tied in to the contentions of the lessee Caplow that no rentals were due from September 10,

1954, to March 21, 1955; that no rentals would accrue after March 21, 1955; that the option

price would be reduced to the extent of all liens filed against the property and to the extent of

large sums of money as damages resulting from alleged breaches on the part of the lessors

and to the extent of an estimated $50,000 required to complete the building. These were all

contested matters, and the notice by lessee Caplow to the effect that “I have elected to

exercise the option” and that “we will be prepared to deposit the option price” under the

conditions mentioned and particularly in view of the finding of the court that lessors had

substantially completed the building and had delivered the premises on September 10, 1954,

cannot in law be considered an exercise of the option.


Judge William E. Orr, a former chief justice of this court, writing the opinion for the Court

of Appeals of the Ninth Circuit in United States v. Corder, 9 Cir., 208 F.2d 411, 413, cites

Estfan v. Hawks, supra, with approval, but the Corder case is also direct authority for the

proposition that under the conditions discussed above the so-called notice of election to

exercise the option was not such an unequivocal offer as to be effective. Judge Orr notes, in

the Corder case, that the government's notice “was mere notice that the Government wished

to exercise its option (emphasis supplied) and a request that appellee advise it of the lowest

price appellee would accept for the property. * * * the Government never made an

unconditional offer to pay $75,000.00 for the property. It at all times insisted that it had the

right to deduct the alleged overpayment of three days rent. As a result of the failure to

exercise the option in accordance with its terms no bilateral contract for the purchase of the

property came into existence. To exercise an option the notice thereof ‘must be unconditional

and in exact accord with the terms of the option.' (citing authorities) The Government was at

no time bound by its conditional acceptance of the option and appellee was not bound

because the option had not been exercised.” The language used above is particularly

applicable here where appellants at no time unequivocally offered to purchase the property in

accordance with the terms of the option. They simply notified the lessors that they would “be

prepared to deposit the option price” with the escrow company, upon compliance by

respondents with many disputed conditions, some of which respondents contended they had

substantially performed and some of which they contended it was the duty of appellants to

perform. No bilateral contract came into existence. Assuming an offer by lessors (the granting

of an option to purchase) there was no acceptance by the lessees. The purported acceptance

was subject to many conditions which, as noted, were already in issue in the pending suit.


[Headnote 6]

(5) Appellants assert that there was a misjoinder of parties plaintiff, relying upon certain

sections of Nevada Compiled Laws, which have been superseded by N.R.C.P. They also refer

to authorities based upon the former practice. Plaintiffs named in the complaint were, “Walter

R. Stutz Enterprises, a limited partnership, Walter R. Stutz and Louis Stutz.” Appellants

assert that all of the exhibits and the testimony of plaintiff Walter R. Stutz show that the only

proper party plaintiff was Walter R. Stutz Enterprises, a limited partnership, and that neither

Walter R. Stutz, individually, nor Louis Stutz, individually, was shown to have any interest

entitling him to be joined as plaintiff. Rule 21 N.R.C.P. is now applicable to the alleged

misjoinder. It reads: “Misjoinder of parties is not ground for dismissal of an action. Parties

may be dropped or added by order of the court on motion of any party or of its own initiative

at any stage of the action and on such terms as are just. * * *” The record does not disclose

any motion in the premises in the trial court. The question is raised here for the first time. It is

not shown how the asserted misjoinder was prejudicial. The assignment is without merit.

Meyercheck v. Givens, 7 Cir., 180 F.2d 221.

[Headnote 7]

(6) Appellants contend that there was a nonjoinder of essential parties defendant. While a

motion to join additional parties defendant was made in the trial court, this motion was

withdrawn when the plaintiffs called the court's attention to their attempts to obtain through

depositions of the named defendants the names of other parties who might be interested with

them in the enterprise described, and the consistent refusal of such named defendants to

divulge the names of any persons who might be so interested. The separate counsel for

defendant Gershenhorn and for defendant Caplow conceded in open court that plaintiffs'

point was well taken, and the court denied the motion. Appellants do not deny that ��


such was the situation, but appear now to contend that their waiver could not bind other

parties and that the court should have joined them of its own motion. No argument is

advanced in support of this contention, nor do appellants attempt to point out any prejudice

resulting either to the named defendants or to the other persons purportedly interested with

them in the enterprise. The cases cited by appellants in support of the assignment are not in

point, and we find no merit in the assignment.

[Headnote 8]

(7) Appellants next assert that there was a fatal variance between the pleadings and the

proof with reference to that part of the judgment ordering a cancellation of the $47,500

five-year noninterest bearing notes given the lessees by the lessors in evidence of moneys

advanced by the lessees to assist in the construction by the lessors. Appellants say that these

notes were not described in the complaint. However, the lease attached to the complaint as an

exhibit and expressly made a part thereof required the notes to be given and the complaint

alleged that of the required $60,000 loan required by the specific provision of the lease,

$47,500 had been advanced but that there had been a default in the advance of $12,500.

Defendants in their pleadings alleged their advance of $47,500 as a loan in accordance with

the terms of the lease, defendants Caplow and Gershenhorn both testified to the making of the

loan, and the matter of the notes was the subject of considerable examination, in which the

court itself joined. Accordingly, (a) the question of the notes was sufficiently raised by the

pleadings; and (b) the issue of the right to a cancellation of the notes was tried before the

court by consent of the parties and must in any event be treated in all respects as if it had been

raised in the pleadings. Rule 15(b) N.R.C.P. Nor does the lack of an amendment in the

premises affect the validity of the judgment. See Moore's Federal Practice, sec. 15.13,

commenting on this ��


rule. See also Barron and Holtzoff, Federal Practice and Procedure, sec. 449. The assignment

is without merit. We have thus concluded that there is no merit in any of the assignments 1 to

7, inclusive. The next assignment, however, presents more difficulty.

[Headnote 9]

(8) We have noted that, in addition to adjudging a cancellation of the contract and

awarding restitution of the premises, the court rendered judgment against the lessees for

$100,000 past-due rentals, $75,000 excess costs of the structure under the terms of the

contract, $10,000 attorney fees and $50,000 additional damage. The $100,000 rental is based

upon the agreed $5,000 per month for twenty months. The item of $75,000 for excess

construction costs was arrived at by the court from oral and documentary evidence supporting

these costs in a considerably larger sum but limited by the provisions of the lease to $12 per

square foot, and finds ample substantiation in the record. The $10,000 attorney fee was

allowed under the provisions of the lease.

The judgment for $50,000 damages, however, apparently is based upon finding of fact No.

7, which reads in full as follows: “7. That defendants failed to keep the premises clear of

mechanics' or materialmen's liens, neither did they contest the same, nor did they satisfy

process levied against lessees' interest within ninety days or at all. That plaintiffs have been

damaged in that they had to defend at their own cost and expense numerous actions against

liens and process in which defendants here were named therein as defendants.” (Emphasis

supplied.) Such finding patently does not of itself support a judgment for $50,000. If it does,

it might as well be said that it supports a judgment on such item for several times that

amount. The record does indeed contain much evidence concerning the filing of liens against

the premises by reason of labor and materials ordered by the lessees and for whose costs they

were responsible. The record further discloses the commencement of suits �� "��


to foreclose such liens asserted against the property of the lessors and in which suits the

lessors were named as defendants. Restitution of the entire premises benefiting by the work

and labor involved in the lien suits was made to the lessors, and this included not only the

casino building constructed by them but the theater-restaurant building constructed (subject to

certain required completion) by the lessees. It is not indicated either by the court in its

findings, conclusions and judgment or in the briefs of the respondents that the lessors were

not made completely whole as a result of the judgment. Accordingly, the $50,000 judgment

and the finding on which it is based must look for support to evidence as to costs, expenses

and attorney fees incurred by the lessors in their defense of the said lien foreclosure suits. As

the briefs of the parties made no attempt to deal with this item we had the clerk instruct

counsel for respondents to point out any parts of the record supporting any damage by reason

of costs and expenses incurred by respondents in defending against the sundry lien

foreclosures. Respondents replied by listing the lien foreclosure suits filed, with the expressed

conclusion that this “amply supports the sum of $50,000 allowed as damages.” Of course, it

does nothing of the kind. Appellants properly point out in their response to respondent's letter

“that there is no basis for the judgment of $50,000.” We are satisfied that the judgment must

be modified by striking this item.

Other questions “lurk in the record” which have caused the court some concern but which

have not been properly presented for determination. Indeed, by reason of our desire to do

justice to the parties and because of the very substantial amounts involved, we have gone to

considerable length in attempting to define the issues presented despite obstacles and

difficulties growing out of the manner of their presentation. In the first place, appellants'

opening brief assigned as error variance between the pleadings and the proof, misjoinder of

parties plaintiff, nonjoinder of parties defendant, failure of ��


the plaintiffs to prove a cause of action because plaintiffs first breached the contract,

insufficiency of “substantial completion”, and failure of plaintiffs to comply with statutory

provisions having to do with unlawful detainer actions. It will have been noted from the

foregoing opinion that the court was able to dispose of these assignments without too great

difficulty. Appellants' reply brief (some four times as long as their opening brief) raised for

the first time the other questions above discussed. We ignored this as well as other failures to

comply with our rules and went so far as to request submission of further memoranda as

noted above. Orderly appellate procedure demands that at some point we must consider the

appeal finally submitted for our decision and we feel that such point has been reached in this

case. We do not choose, of our own motion, to add to the assignments of error issues which

to us may seem of importance but which counsel have not seen fit to present.

In concluding we find it necessary to define the manner in which our decision affects the

judgment. This was in its final effect as follows:

For rental..................................................................$100,000

For excess costs of construction..................................75,000

For damages for costs of defending

lien suits............................................................50,000

Attorney fee allowed....................................................10,000 ________

Gross judgment........................................................$235,000

Offset allowed by reason of moneys

advanced by defendants....................................47,500 ________

Net judgment............................................................$187,500

Modification by this court by

deducting item of..............................................50,000 ________

Net judgment pursuant to

our modification..........................................$137,500

In order to make the offset effective the trial court �� /4-�+��C"��


ordered defendants to surrender to plaintiffs the $47,500 five-year noninterest bearing notes.

This order we leave undisturbed. Except as modified above, the judgment and order denying

new trial are affirmed. Appellants and respondents shall pay their own respective costs in this

court.


____________

On Petition for Rehearing

January 29, 1957 306 P.2d 121

After modification and affirmance of judgment appealed from, a petition for rehearing was

filed. The Supreme Court, Per Curiam, held that petition for rehearing should be confined to

statement of points upon which right to present argument and authority is sought and that

argument upon merits is out of place in such petition; and held that since the thirty-four page

petition filed herein was, in substance, a reargument of appeal, rehearing must be denied.

Petition denied.

(See 72 Nev. 293, 304 P.2d 395, for opinion on merits.)

Harry E. Claiborne, of Las Vegas, and Alvin Gershenson, of Chicago, Illinois, for

Appellants.

Morse, Graves & Compton, of Las Vegas, and W. Bruce Beckley, of Las Vegas, for

Respondents.

Appeal and Error.

Petition for rehearing should be confined to statement of points upon which right to

present argument and authority is sought, and argument upon merits is out of place in

such petition; and where thirty-four page petition was, in substance, a reargument of

appeal, rehearing would be denied.


OPINION

Per Curiam:

With increasing frequency counsel seem to be confusing the function of a petition for

rehearing with the rehearing itself. In this case a “petition” of 34 pages has been filed by the

appellants which, upon patient reading, is discovered to be in substance a reargument of the

appeal. For this reason, rehearing is denied.

We deem this an appropriate occasion to point out to the members of the bar that argument

upon the merits is out of place in a petition for rehearing. The petition asks leave to argue and

should, therefore, confine itself to a statement of the points upon which the right to present

argument and authority is sought. See “Rehearing In American Appellate Courts”, 44 Cal.

Law Review 627. At page 658 of the cited article it is stated (referring to the petition), “It

should be brief and it should not be argumentative; it should point to the conflict created [by]

or the ‘controlling' matter overlooked in the original decision. It should not be expected to

also serve the role of persuading the court how the conflict or error should be resolved. That

is the object of resubmission. The object of the petition is only to show that the petitioner is

entitled to a rehearing, not that he is entitled to a different decision on the merits.”

____________

��72 Nev. 314, 314 (1956) Kassabian v. Jones��

Levon G. Kassabian, Appellant, v. Glen Jones and Bur-Wy, Inc., a Corporation, Respondents.

No. 3982

December 7, 1956 304 P.2d 962

Upon motion for order for deposit in Court pending appeal.

Action by landlord to terminate a lease. From adverse judgment, plaintiff appealed and

filed motion for an order directing tenant to make monthly deposits in court equivalent to

monthly rental fixed by lease. The Supreme Court held that requested order was not an order

appropriate to preserve the status quo or the effectiveness of judgment ultimately to be

entered within meaning of Rules of Civil Procedure, Rule 62(g).

Motion denied.

George Rudiak and Betty Aronow, Associate Attorneys, of Las Vegas, for Appellant.

George F. Marshall, of Las Vegas, for Respondent Glen Jones.

Hawkins and Cannon, of Las Vegas, for Respondent Bur-Wy, Inc.

Appeal and Error.

Requested order directing tenant to make monthly deposits in court equivalent to monthly rental fixed by

lease pending appeal from judgment adverse to landlord in his action to terminate lease was not an order

appropriate to preserve the status quo or the effectiveness of judgment ultimately to be entered within

meaning of rule of procedure preserving power of Supreme Court to make any order pending appeal

appropriate to such purpose. Rules of Civil Procedure, Rule 62(g).

��72 Nev. 314, 315 (1956) Kassabian v. Jones��

OPINION

Upon Motion for Order for Deposit in Court

Pending Appeal

Per Curiam:

This is upon motion for order of this court directing deposit in court by respondents of

certain sums pending the appeal in this matter. The order is sought under Rule 62(g) N.R.C.P.

which provides in part that the provisions of Rule 62 relating to stay of execution shall not

limit the power of this court pending appeal “to make any order appropriate to preserve the

status quo or the effectiveness of the judgment subsequently to be entered.” The motion is

opposed by respondents.

It appears from the record that the action is one in part to terminate a lease between

appellant and respondent Jones, which lease provides for the payment of monthly rental.

Appellant contends that in the alternative he is entitled to the rental fixed by the lease (should

respondents prevail here) or to equivalent sums as damages for use and occupancy (should

appellant prevail and the lease be terminated); that this court should, therefore, order such

sums deposited monthly during the pendency of this appeal and should in effect restore an

order for such deposits made by the trial court under Rule 67(2) during the pendency of these

proceedings before that court.

We do not regard such requested relief as relating to a preservation of the status quo. Save

as a provisional remedy in aid of collection of a money judgment such relief does not appear

to relate to the effectiveness of any judgment we might render. That the effectiveness of our

ultimate judgment might be defeated should we fail to act does not appear at all.

Motion denied.

____________

��72 Nev. 316, 316 (1956) Deboer v. Fattor��

HENRIETTA DEBOER, Appellant, v.

ERNEST FATTOR, Respondent.

No. 3930

December 12, 1956 304 P.2d 958


Department 3.

Personal injury action. The lower court entered summary judgment for defendant on

ground that plaintiff's action was not commenced within the two year limitation on an action

for damages caused by defendant's wrongful act. The plaintiff appealed. The Supreme Court,

Badt, J., held that “issuance” of a summons under Rules 3 and 4(a) of the Nevada Rules of

Civil Procedure required that the summons be delivered to a person authorized to serve it

before commencement of an action was effected.

Judgment affirmed.

Eather, J., dissented.

(Petition for rehearing denied February 7, 1957.)

John W. Barrett and John E. Gabrielli, both of Reno, for Appellant.

Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, for Respondent.

1. Limitation of Actions. Where plaintiff's attorney received a summons from clerk of court but did not deliver it to the sheriff for

service until more than two years after personal injuries had been received, “issuance” of the summons was

not effected and personal injury action was not timely commenced. N.C.L.1929, sec. 8573, and sec. 8524

as amended St.1951, p. 247; Rules of Civil Procedure, Rules 3, 4(a).

2. Process. Plaintiff's attorney was not authorized to make service of process.

3. Limitation of Actions. An action is not commenced until the summons is placed in the hands of the sheriff or other person

authorized to serve it with the intention that it be served in due course. N.C.L. 1929, sec. 8573, and sec.

8524 as amended St.1951, p. 247; Rules of Civil Procedure, Rules 3, 4(a).


OPINION


This appeal presents for our determination the question whether plaintiff's action was

commenced within the statutory two-year limitation on an action for damages caused by the

defendant's wrongful act. Section 8524, N.C.L.1929, as amended, Stats. 1951, 247. In 1944

this court, construing sec. 8573, N.C.L., providing that civil actions are commenced “by the

filing of a complaint with the clerk of the court, and the issuance of a summons thereon”,

concluded “that the word ‘issuance' * * * means not only the act of signing the summons and

the placing of the seal thereon, but also delivery to the sheriff or other person qualified to

serve same, with the intent that said summons be served in due course.” Woodstock v.

Whitaker, 62 Nev. 224, 146 P.2d 779, 780.

The personal injuries occurred May 22, 1952, and the cause of action would, accordingly,

be barred after May 22, 1954. The complaint was filed May 12, 1954, on which date the clerk

signed and sealed the summons and handed it to plaintiff's attorney, who in turn delivered it

to the sheriff for service August 9, 1954.

Appellant contends that the rule under sec. 8573 and applied in Woodstock v. Whitaker

has been superseded and changed by Rules 3 and 4(a) of the Nevada Rules of Civil Procedure

which became effective January 1, 1953. Respondent insists that the Rules of Civil Procedure

expressly adopt and require adherence to Woodstock v. Whitaker.

We turn to the rules and note first Rule 1: “These rules govern the procedure in the district

courts in all suits of a civil nature * * *. They shall be construed to secure the just, speedy,

and inexpensive determination of every action.” (Emphasis supplied.)

Chapter II is entitled in part “Commencement of action; service of process”, and Rule 3

thereunder is entitled “Commencement of action” and reads: “A civil �� "�� $


action is commenced by filing a complaint with the court, and the issuance of a summons

thereon.”

The notes of the “Advisory Committee to the Supreme Court of Nevada, on Rules of Civil

Procedure”, remark that the rules are modelled after, and numbered in accordance with, the

Federal Rules of Civil Procedure and comment on Rule 3 as follows: “Rule 3.

Commencement of action. The federal rule is revised to add the requirement of issuance of

summons in order that an action be commenced. This preserves the present Nevada rule. Cf.

sec. 8573 N.C.L. 1929.”

“Rule 4. Process (a) Summons: Issuance. Upon the filing of the complaint the clerk shall

forthwith issue a summons and deliver it for service. Upon request of the plaintiff separate or

additional summons shall issue against any defendants.”

The Advisory Committee's notes as to Rule 4(a) read: “Summons: Issuance. The federal

rule is revised to delete the phrase providing that the summons shall be delivered ‘to the

marshal or to a person specially appointed to serve it.' As at present, the summons may be

delivered to plaintiff's attorney or to whomever he designates.”

The parties appear to be in accord on two things, first, that the Advisory Committee's notes

should be considered as an expression by this court, and, secondly, that the Committee's

reference to preserving “the present Nevada rule” means the rule as applied in Woodstock v.

Whitaker.

[Headnotes 1-3 incl.]

Appellant's contention is that, reading and considering Rules 3 and 4(a) together, Yudin v.

Carroll, 57 F.Supp. 793, we have the following result: A civil action is commenced by filing a

complaint with the court, the issuance of a summons thereon, and the delivery of the

summons by the clerk for service, which delivery may be made to the plaintiff's attorney or to

whomever he designates. As such was done on May 12, 1954, ten days before the ��


running of the statute of limitations in the instant case, the action was commenced within the

statutory limitation. Appellant submits further that if such be not clearly the case, then the

Advisory Committee's note, with regard to Rule 4(a), conflicts with its note regarding Rule 3;

that the matter is left in a state of uncertainty; that the situation is simply a trap for the

unwary; that this is illustrated and emphasized by the facts in the instant case in which

plaintiff's attorney, on May 12, 1954, the date of his receipt of summons from the clerk,

called on the sheriff with the summons, explained that the only address of the defendant

known to the plaintiff was a Reno post-office box number, and returned to his office with the

summons still in his possession; that if we should hold under Rules 3 and 4(a) and under

Woodstock v. Whitaker and under the Advisory Committee's notes that “issuance” of the

summons was thereby not effected and that the action had, accordingly, not been commenced,

we should be holding and adhering to the necessity of actual delivery to the sheriff for service

simply to satisfy a rule and not to accomplish service. Appellant argues that such conclusion

is unnecessary, unreasonable and unwarranted. The argument is not without appeal, but our

consideration of the provisions of sec. 8573, N.C.L.1929, the construction placed thereon by

this court in Woodstock v. Whitaker, thus establishing the rule in this state, and the clear

intention of N.R.C.P. to preserve that rule leave us with no other alternative than to hold that

a summons is not issued, and an action, accordingly, not commenced until the summons is

placed in the hands of the sheriff, or other person authorized to serve it, 1 with the intention

that it be served in due course. This conclusion results from a combination of factors. First,

the intention of N.R.C.P., as specifically stated by the Advisory Committee's notes, is “to

preserve the present Nevada rule”; second, such �� @�� @��

____________________

1 Service may not be made by plaintiff's attorney, Nevada Cornell Silver Mines v. Hankins, 51 Nev. 420, 279

P. 27.


rule is the rule enunciated in Woodstock v. Whitaker—that “issuance” of summons requires

delivery to the sheriff or other person qualified to serve it with the intent that it be served in

due course; third, that delivery of summons for service is now expressly required by Rule 4(a)2 ; fourth, that, though it was contended in Woodstock v. Whitaker that the 1915 amendment

of sec. 8573 eliminated the requirement of delivery of summons to the sheriff for service,

which requirement was included in the 1911 statute, and that, therefore, such delivery was no

longer required, this court rejected the contention, holding that the provision as originally

contained in the 1911 statute was merely declaratory of the common law and that the

amendment did not repeal the common law rule, but left it more clearly in force.

We are of the opinion that the Nevada Rules of Civil Procedure imbed more firmly than

ever the rule enunciated in Woodstock v. Whitaker.

____________________

2 The possible dual sense of the word “issue” in Rule 4(a) may be unfortunate in view of the fact that our

entire decision turns upon the Woodstock definition of the meaning of the word “issuance”. This, however, does

not logically effect the result, as the picture made by the words is clear. It might seem that first to issue a

summons and then to deliver it for service is a contradiction in terms, if there is no issuance until it is actually

placed in the hands of the sheriff for such service. The clerk invariably signs and seals the summons and hands it

to plaintiff's attorney who places it in the hands of the sheriff (or other qualified person) for service. The rule

does indeed refer to such signing, sealing and delivery to plaintiff's attorney as “issuing” it. The Advisory

Committee's notes say: “As at present, the summons may be delivered to plaintiff's attorney or to whomever he

designates.” If “issue” has such a dual meaning under Rule 4(a), when considered in connection with Rule 3,

there is still no confusion in understanding the requirement that the clerk shall sign and seal the summons which

may then be placed in the hands of plaintiff's attorney, who, as under the former practice, will attach it to a copy

of the complaint, Rule 4(d). and hand it to the sheriff for service. Thereupon the summons is “issued” and the

action, accordingly, commenced.

Indeed, the use of the terms “issue”, “issuing” and “cause to be issued”, as used in N.C.L. sec. 8574 and as

compared with the use of the word “issuance” in sec. 8573, N.C.L., would seem to indicate a like dual use of the

term. Yet this court was not confused thereby in Woodstock v. Whitaker.


We must dispose of one further contention. Appellant contends that Woodstock v.

Whitaker definitely recognized two rules regarding the meaning of the term “issuance”, one,

as above stated, requiring the summons to be placed in the hands of one qualified to serve it

in order to complete issuance, “and the other deeming issuance complete where delivery is

made to a party (emphasis supplied) with the intent that the summons be by him delivered to

some one authorized to serve it.”

Such so-called second “class” of cases, and any reliance thereon, was entirely unnecessary

to the decision. The first positive holding that “issuance” included the necessary delivery to

the sheriff, or other qualified person, for service, followed by the repeated holding at the end

of the opinion that the action “was commenced May 21, 1942, because that was the date the

summons was placed in the hands of the sheriff for service”, definitely indicates the real

holding in the case. That the decision may be further fortified for other reasons does not, in

our opinion, weaken that holding. 3 The contention that the delivery of the signed and sealed

summons by the clerk to plaintiff's attorney constituted an issuance of the summons, and,

therefore, a commencement of the action, under the so-called second class of cases, is

rejected.

____________________

3 Of the 16 cases and one text cited by the court and followed by the statement that such cases “may be

divided into two classes”, one dealt with publication summons and one dealt with a dictionary definition and

may be put aside. Of the remaining cases ten held to the positive rule requiring delivery to the sheriff or other

qualified person for service. The other three permitted a slight variation, such as requiring delivery or that the

summons be “put on way of delivery” to the officer for purpose of service, “or to some one for him” or to some

one to give to an officer for the purpose of being served. The one text citation is to 37 C.J. 1055. Limitations of

Actions, sec. 481, where the rule is stated to be that the writ is not sued out “until it is delivered, or put in course

of delivery, to a proper officer, with a bona fide intent to have the same served.”Only one jurisdiction (Illinois)

is cited as holding delivery to the sheriff not to be required—and that by a divided court. Schroeder v. Merchants

etc. Co., 104 Ill. 71.


As the action was commenced after the bar of the statute of limitations had become

effective, the order for summary judgment was proper.

Judgment affirmed.

Merrill, C. J., concurring:

I concur, but under the circumstances of this case, feel that an apologetic footnote might

well be added.

In the light of the explanatory note to Rule 4(a) N.R.C.P., that rule would seem to me to be

wholly inconsistent with Woodstock v. Whitaker, appearing to provide that delivery to an

attorney for a party may constitute effective “delivery for service.” It may, then, be contended

that we are saying to those who attempt to follow our Rules of Civil Procedure, “Do not do

what we say. Rather, do what we meant to say.” It may be a pertinent inquiry whether we

have not, through our Rules of Civil Procedure, laid a trap for the trusting attorney.

However, should such an attorney do what we “say” (that is follow N.R.C.P. without

regard to the explanatory notes) he would not be misled. Rule 3 must still be read in the light

of Woodstock v. Whitaker. Rule 4(a) would not necessarily be inconsistent. It is only when

one turns to the notes that the inconsistency of Rule 4(a) with Woodstock v. Whitaker

becomes apparent. However, those very notes demonstrate clearly the intent that Woodstock

v. Whitaker—”the present Nevada rule”—be continued in effect.

Rule 4(a) it is true in the light of the notes is unfortunately expressed with resultant

confusion and inconsistency but it can hardly in good sense be construed to repeal the very

rule which so clearly we intended to preserve.

Failure to comply with the rule of Woodstock v. Whitaker cannot, then, be attributed to the

language in which Rule 4(a) or its explanatory note is expressed. It can only be attributed to

unawareness that the rule of that case was the present Nevada rule.

We cannot, of course, condone a disregard of our case �� "��"��"� �� "��


law nor be persuaded into a change of rule solely through sympathy with those who may have

overlooked it in a particular case. Moreover, I feel it doubtful that change of rule should be by

court decision where such rule has expressly or by clear implication found its way into

N.R.C.P. and modification with notice is available by the method we have there prescribed.

Eather, J., dissenting:

I dissent. I would hold that suit had been commenced within the statutory period; that

summary judgment should be set aside and the matter remanded for further proceedings.

As was recently stated in Lewis v. Neblett, ...Cal. App.2d..., 302 P.2d 859, 863, “Statutes

of limitation are ‘intended to run against those who are neglectful of their rights, and who fail

to use reasonable and proper diligence in the enforcement thereof'.” (Citing Neff v. New York

Life Insurance Co., 30 Cal.2d. 165, 180 P.2d 900, 171 A.L.R. 563.)

In the case at bar it cannot be said that appellant has been neglectful of his rights or failed

to use reasonable or proper diligence. On the contrary, as concerns service of process, the

record demonstrates the utmost good faith in attempts to make prompt service. After

receiving summons from the clerk, appellant's counsel (1) conferred with the sheriff with

reference to service and did not deliver summons to the sheriff for the reason that counsel did

not know where the defendant might be served; (2) checked the Reno police department

report of the collision out of which the cause of action arose; (3) made further inquiry at the

Reno police station as to the address or whereabouts of the defendant; (4) checked the records

of the safety responsibility division of the Nevada Public Service Commission; (5) checked

the Reno telephone directory; (6) checked the Reno city directory; (7) made inquiry from the

defendant's attorney; (8) when the defendant's whereabouts were learned, accomplished

service forthwith.


All that precludes recognition of this diligence is the rule, announced by this court in

Nevada Cornell Silver Mines, Inc. v. Hankins, 51 Nev. 420, 279 P. 27, 32, to the effect that

the attorney for the plaintiff is not a person authorized to make service of process. This court

was divided in that case, Mr. Justice Ducker dissenting from the majority opinion. In his

dissenting opinion he emphasized that the applicable section of the civil practice act made no

prohibition against service of process by counsel; that such prohibition must be found in the

common law. He referred to First National Bank of Whitewater v. Estenson, 68 Minn. 28, 70

N.W. 775, stating, “The court pointed out that the same reasons of public policy which

moved the legislature to deny such authority to a party to an action do not apply to the same

extent to an attorney who is an officer of the court, and answerable to it for fraud or

misconduct in the premises.”

It is my opinion that the majority of this court in that case was in error and that such error

should now be corrected and the dissenting opinion recognized to be the rule of this state.

In the case at bar, delivery of summons to the attorney for the plaintiff should be held to

constitute effective delivery to a person authorized to make service and thus complete the

requirement of issuance of summons under Woodstock v. Whitaker.

____________

��72 Nev. 325, 325 (1956) Gabler v. Gabler��

WERNER K. GABLER, Appellant, v.

DOROTHY I. GABLER, Respondent.

No. 3923

December 14, 1956 304 P.2d 404

Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge,

Department No. 1.

Divorce action by wife on ground of extreme cruelty, mental in character. Husband

charged wife with adultery and asked that the divorce be denied. The lower court entered

decree for wife, and husband appealed. The Supreme Court, Merrill, C. J., held that evidence,

which revealed that wife had been guilty of adultery, was not sufficient to sustain trial court's

determination that husband had been the party greater in matrimonial fault.


(Petition for rehearing denied January 25, 1957.)

Jack Streeter, of Reno, for Appellant.

Vargas, Dillon & Bartlett, of Reno, for Respondent.

1. Divorce. Under the rule of comparative rectitude, it cannot be said that adultery must, per se, be held a graver

matrimonial delict than cruelty, but the degree of fault in each party must be determined under the facts of

the particular case. N.C.L.1931-1941 Supp., sec. 9467.01.

2. Divorce. In divorce action by wife on ground of extreme cruelty, mental in character, wherein husband charged

wife with adultery, evidence which revealed that wife had been guilty of adultery, was not sufficient to

sustain trial court's determination that husband had been the party greater in matrimonial fault.

N.C.L.1931-1941 Supp., sec. 9467.01.

OPINION


This is an action for divorce. The husband has appealed from a decree in favor of the wife,

granting �� "��


her a divorce and custody of the minor child of the parties, together with an allowance for

child support. The sole question which we reach in this opinion is whether, under our rule of

comparative rectitude, it was available to the trial court upon the record to award a decree of

divorce to the wife as the party less at fault. Sec. 9467.01, N.C.L., 1931-1941 Supp., provides

as follows: “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.”

The wife charged the husband with extreme cruelty, mental in character. The husband

charged the wife with adultery and asked that the divorce be denied. As to both charges the

proof was confined to the testimony of the wife and is undisputed. Upon cross examination

she admitted that commencing in 1954, eight years after marriage and one year prior to suit,

she had engaged in acts of adultery with a specified married person, father of two children.

[Headnote 1]

It cannot be said today that for historical, moral or ecclesiastical reasons, adultery must,

per se, be held a graver matrimonial delict than cruelty. The degree of fault in each party must

be determined under the facts of the particular case.

In the case at bar it may be noted that the wife's infidelity was not an isolated or

spontaneous instance. While her examination was lacking in detail, it gives rise to an

implication, unrebutted, that the adultery amounted to or approached a deliberate course of

conduct.

The wife's testimony with reference to her husband's acts of extreme cruelty is brief and

we quote it in full.

“Q. Mrs. Gabler, can you describe for us the conduct on the part of your husband which

you stated constituted extreme cruelty.


“A. Shortly after we were married, approximately a year and a half, I felt that something

was wrong with our marriage, and I couldn't quite figure out what it was; and I tried to talk to

Werner about it, and he just laughed and said that there was nothing wrong, and I wasn't busy

enough, I should get a job or do something to keep me busy. I tried all those things; I worked

in his office for him, and continuously tried to talk to him, and he refused all the time, and it

just went on like that for years.

“I also felt that perhaps if we were able to have children it would alleviate the matter,

although we didn't have any until we were married four years; and when Audrey was born he

didn't seem interested in her very much, or me. His business seemed to be the only thing that

really meant very much to him. I was something pretty to look at and to entertain his friends,

he had a nice little daughter, and that's about all I seemed to mean to him.

“Then as the years went on, I felt that he sexually was not interested in me at all, and I

worried about this, too; and all the time every effort I made to talk to him I just couldn't get

through to him; and he would say, ‘Well, that's silly'; he'd laugh at me, and then the moment

would pass again.

“Then during our married life Werner bought a dog, an English Pitt Bull Terrier, which is

a very strong, very nervous type dog. He imported it from England. And I was in deathly fear

of this dog all the time. He became very attached to Werner, and whenever Werner was out of

the house I couldn't control him. Our friends were all frightened of him; whenever anyone

came around we had to lock the dog up. And three times when Werner was away I had to put

Minor in a kennel because I was afraid he was going to bite me or Audrey or some of our

friends. And when I tried to talk to him about this, he absolutely couldn't understand what I

meant. He said, ‘Well, you don't give the dog enough love, enough attention.' I just couldn't

cope with this dog and manage the �� &� ��"�� "��


house and Audrey and work in his office and everything all at the same time. This went on for

about two and a half, nearly three years, and finally the dog bit our maid; and Werner then

finally thought, I suppose, it was time to get rid of him, and he finally sold him.

“I also felt that there was something lacking in Werner's and my married life with regard to

religion. He always belittled everything I thought about it. I felt that we should go to church

and, seeing as we had a little girl, we should bring her up to believe in God, things like that,

and he just wouldn't even talk to me about it. It was one of those things that would come up,

just as I always tried to talk to him, he just laughed at me.

“Q. Now, did this refusal to talk to you, did that cause you to feel extremely frustrated?

“A. Well, completely. I just felt that it was a very important part in our married life that we

couldn't get to, and the fact that he wouldn't talk to me was to me the frustrating part of it.

“Q. And how did it affect your health, Mrs. Gabler, with reference to being nervous or

upset?

“A. Well, I realized, particularly after Audrey was born, that I became very nervous all the

time, and hated to be alone; and I went to the doctor, and I said, ‘This is silly; is there

something wrong with me? I'm afraid to stay alone in the house and things like that.'

“And I always had a cold, felt miserable all the time, and became in such a state,

apparently, that I got pneumonia three times. The doctor told me I should leave Audrey and

Werner and the house and go away for a rest somewhere, but it wasn't possible, we had work

to do at the office, and I just had to stay around and look after things.

“Q. Do you believe that that health problem was caused by his conduct in not being

willing or able to discuss these matters with you?

“A. Yes, I do.

“Q. And particularly with reference to the baby's—


the time Audrey was born, was there anything that happened then that caused difficulty?

“A. Well, I had felt that maybe a child would be the thing that Werner and I needed to

keep us together; and then when she was born, I looked forward to it so much, and expected

that Werner did, too; but the night she was born he wasn't at the hospital even, and the doctor

couldn't find him to tell him that he had a small daughter. He apparently was out with friends

of ours drinking. And then when I came home from the hospital I found the house full of

empty glasses, and, well, all the signs of a party the night before, which he told me he had

had. I felt that it meant so much to us, this child—Well, it just didn't seem right to me. I was

very hurt and upset by that, although—that's about all I have to say about that.”

Without disregarding the specified instances of inconsiderate action, the gravamen of the

husband's offense —that which the wife believed to have caused her feeling of frustration and

to have affected her health—was his refusal to discuss with her certain matters which

troubled her.

On examination of this testimony we note that while the wife felt that something was

wrong with the marriage, she does not charge her husband with fault in this respect for she

could not herself figure out what it was that was wrong. Even at the time of trial she

apparently had not solved this problem sufficiently to specify it. While she felt that her

husband had lost interest in her sexually and otherwise, we do not know the facts upon which

this feeling was based or whether, in the face of her husband's laughing denial, it was at all

reasonable. The husband's fault apparently lay in his refusal to aid his wife in her inquiry, he

apparently being of the belief that if you yourself see nothing wrong with your marriage there

is little profit or point in searching out sources of trouble.


[Headnote 2]

Appellant husband contends that this proof is insufficient to establish grounds for divorce,

even in the absence of recrimination. Our problem, however, is more simply resolved. We

conclude only that such casual and scanty proof wholly fails to provide any support

whatsoever for a determination by the trial court that the husband in this case is the party

greater in matrimonial fault.

Reversed and remanded with instructions that judgment be entered for the defendant in

accordance with the prayer of his answer. No costs are allowed.


____________

��72 Nev. 330, 330 (1956) Bryant v. State��

PATRICIA ANN BRYANT, Appellant, v.

THE STATE OF NEVADA, Respondent.

No. 3892

December 17, 1956 305 P.2d 360


Department No. 3.

Defendant was convicted of involuntary manslaughter. The lower court entered judgment,

and defendant appealed. The Supreme Court, Merrill, C. J., held that, in denying challenge of

one juror for bias in involuntary manslaughter prosecution, trial court could not accept juror's

final declaration that she could act fairly and impartially notwithstanding her previously

formed opinion as to defendant's guilt or innocence and render of no significance her earlier,

spontaneous, and emphatic confession of bias, and, therefore, it was error to reject the

challenge of such juror for cause.


Samuel S. Lionel, of Las Vegas, for Appellant.


Harvey Dickerson, Attorney General, of Carson City; George M. Dickerson, District

Attorney, Clark County, of Las Vegas; Gordon L. Hawkins and Arthur Olsen, Deputy District

Attorneys, Clark County, of Las Vegas, for Respondent.

1. Jury. In denying challenge of one juror for bias in involuntary manslaughter prosecution, trial court could not

accept juror's final declaration, elicited by district attorney's leading question, that she could act fairly and

impartially notwithstanding her previously formed opinion as to defendant's guilt or innocence and render

of no significance her earlier, spontaneous and emphatic confession of bias, and therefore it was error to

reject the challenge of such juror for cause. N.C.L.1929, secs. 10946, 10948.

2. Jury. Condition of juror's mind should be determined from the whole of his examination, and doubts should be

resolved in favor of the accused, as in other matters, to the end that he be tried by twelve fair and unbiased

men. N.C.L.1929, secs. 10946, 10948.

3. Jury. Existing opinion, by a person called as a juror, of guilt or innocence of defendant charged with crime, is

prima facie a disqualification, but it is not a conclusive objection, provided the juror makes the required

declaration and the court, as judge of the fact, is satisfied that such opinion will not influence juror's action,

but the declaration must be unequivocal, not qualified or conditional. N.C.L.1929, sec. 10948.

4. Criminal Law. Fact that juror, whom defendant had unsuccessfully challenged for cause, was thereafter peremptorily

challenged by defendant would not eliminate any prejudice which might have resulted from court's error in

disallowing the challenge for cause in view of fact that defendant exhausted her peremptory challenges and

therefore was unable to remove from jury another juror whom defendant had unsuccessfully attempted to

challenge for cause. N.C.L.1929, secs. 10946, 10948.

5. Criminal Law; Jury. Where no objection was made to form of challenge of juror for cause, and thereafter both judge and

district attorney examined juror upon nature of her opinion, and the examination related to that one ground

of challenge and clearly demonstrated that no one misunderstood the basis for the challenge, the challenge

of the juror “for cause, implied bias”, in conjunction with and in light of the examination, constituted a

sufficient allegation to make known the specific ground of challenge, and therefore was sufficient to permit

consideration of the question of the cause by the Supreme Court on appeal. N.C.L.1929, secs. 10946,

10948.


OPINION


This is an appeal from judgment of conviction of the crime of involuntary manslaughter.

The only question we reach in this opinion is whether the trial court erred in denying a

challenge of one of the jurors for bias.

Sec. 10946, N.C.L.1929, defines implied bias, in part, as “having formed or expressed an

unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged.”

Sec. 10948, N.C.L.1929, with reference to such implied bias, provides “but no person shall be

disqualified as a juror by reason of having formed or expressed an opinion upon the matter or

cause to be submitted to such jury founded upon public rumor, statements in public press or

common notoriety provided it appears to the court upon his declaration under oath, or

otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly

upon the matters submitted to him.”

In examining the juror in question, a Mrs. Walker, the defendant's counsel brought out the

fact that she had already formed an opinion as to the guilt or innocence of the defendant.

Counsel then asked, “And can you impartially and fairly judge this case by reason of those

opinions which you now have?” Mrs. Walker replied, “I suppose, yes. I don't think I could,

either, the way I feel like I do about it.” The challenge was then interposed.

This was followed by examination of the juror by the trial judge and district attorney from

which examination it appeared that her opinion was based upon what she had read in the

newspapers and assumed the truth of what she had read and would be set aside if the evidence

justified; that if, upon conclusion of the trial, the court instructed her to determine guilt or

innocence from the evidence presented, she would follow the court's instructions. In

conclusion the district attorney asked, “And if �� "� ��


the facts are presented in this courtroom under oath by witnesses * * * [and are] different

from what you read in the newspapers would you set aside your opinion based upon the

newspaper and decide it fairly and impartially; that you will act fairly and impartially upon

the matters submitted to you regardless of your opinion now?” Mrs. Walker answered, “Yes.”

Thus she ultimately did declare that she could act fairly and impartially notwithstanding her

opinion.

[Headnote 1]

Could the court, under sec. 10948, accept this final declaration as superseding and

rendering of no significance the earlier, spontaneous and emphatic confession of bias? In our

opinion it could not.

This court in many cases has dealt with the problem of a juror's qualification to act

notwithstanding the existence of an opinion as to the defendant's guilt or innocence. In many

cases it has upheld the trial court's determination that the juror could and would act

impartially notwithstanding such opinion. State v. Lewis, 50 Nev. 212, 255 P. 1002; State v.

Milosovich, 42 Nev. 263, 175 P. 139; State v. Salgado, 38 Nev. 64, 413, 149 P. 919 and 150

P. 764; State v. Casey, 34 Nev. 154, 117 P. 5; State v. Simas, 25 Nev. 432, 62 P. 242; State v.

Millain, 3 Nev. 409. In none of these cases, however, did the juror express doubt as to his

ability to act impartially. On the contrary, in each case he stated unequivocally and without

self-contradiction that notwithstanding his opinion he could act impartially.

[Headnote 2]

“The condition of the juror's mind should be determined from the whole of his

examination and doubts should be resolved in favor of the accused, as in other matters, to the

end that he be tried by twelve fair and unbiased men.” State v. Williams, 28 Nev. 395, 409,

82 P. 353, 354. To the same effect: State v. Casey, supra; State v. Buralli, 27 Nev. 41, 71 P.

532.


The nature of an unqualified opinion, as that term is used in law, may well require

explanation to a lay mind and an examination into the nature of a juror's opinion is

anticipated under sec. 10948. However, such terms as “fairness” and “impartiality” are not

peculiar to a lawyer's lexicon. A layman should be able without instruction to ascertain the

state of his own mind in relation to the existence of such qualities. The inquiry demands no

peculiar knowledge but only an honest search of conscience.

In this case the examination by the court and district attorney did not serve simply to

explain the nature of the opinion held. In the absence of any other apparent explanation it

actually seems to have persuaded the juror to change her mind as to the fact of her lack of

impartiality. In State v. McNeil, 53 Nev. 428, 440, 4 P.2d 889, 892, this court stated, “It may

be true that on cross-examination his answers tended to contradict his previous statements but

we believe that his very self-contradictions do not increase his fitness as a juryman.”

[Headnote 3]

With reference to the juror's declaration as contemplated by sec. 10948, we approve the

statement of the New York Court of Appeals in People v. McQuade, 110 N.Y. 284, 18 N.E.

156, 162, 1 L.R.A. 273. “Now, as formerly, an existing opinion, by a person called as a juror,

of the guilt or innocence of a defendant charged with crime, is prima facie a disqualification;

but it is not now, as before, a conclusive objection, provided the juror makes the declaration

specified, and the court, as judge of the fact, is satisfied that such opinion will not influence

his action. But the declaration must be unequivocal. It does not satisfy the requirement of the

statute if the declaration is qualified or conditional. It is not enough to be able to point to

detached language which, alone considered, would seem to meet the statute requirement, if,

on construing the whole declaration together, it is apparent that the juror is not able to express

an ��


absolute belief that his opinion will not influence his verdict. * * * Fairly construed, their

declaration of their belief that they could render an impartial verdict was qualified by a doubt,

and was not sure and absolute. The defendant was at least entitled to a certain and

unequivocal declaration of their belief that they could decide the case uninfluenced by their

previous opinions.”

It is our view that in the case before us the declaration of the juror, Mrs. Walker, was at

best qualified by doubt as to her ability to act fairly and impartially. We conclude that it was

error to reject the challenge of that juror for cause.

[Headnote 4]

Mrs. Walker was thereafter peremptorily challenged by the defendant. The state contends

that this eliminates any prejudice which may have resulted from the court's error in

disallowing the challenge for cause. The defendant, however, exhausted her peremptory

challenges and there still remained upon the jury a juror whom the defendant had

unsuccessfully attempted to challenge for cause. Had the challenge to Mrs. Walker been

allowed for cause, a peremptory challenge would have remained to the defendant by means of

which the objectionable juror might have been removed from the jury. This is sufficient to

establish prejudice. See: State v. Raymond, 11 Nev. 98; Fleeson v. Savage Silver Mining

Company, 3 Nev. 157.

The State contends that the challenge of Mrs. Walker was not sufficiently stated to permit

consideration of the question of cause by this court. Appellant's challenge of the juror was as

follows: “At this time the defendant will challenge this juror for cause, implied bias.”

Sec. 10948, N.C.L.1929, provides “In a challenge for implied bias one or more of the

causes stated in [sec. 10946] must be alleged.” Eleven causes are set forth in sec. 10946. This

court has frequently held that a simple challenge “for cause” or “for implied bias” is

insufficient under sec. 10948. State v. Squaires, 2 Nev. 226; State v.�?��


Chapman, 6 Nev. 320; State v. Vaughan, 22 Nev. 285, 39 P. 733; State v. Simas, supra; State

v. Salgado supra; see State v. Gray, 19 Nev. 212, 8 P. 456. As stated in State v. Squaires,

supra, 2 Nev. 226, 231, “When a challenge is interposed in general terms, as in this case, how

is the Court to know the ground of challenge? * * * To enable the court to act

understandingly, it is necessary to state the particular grounds of the challenge. If that be not

done, the appellate court cannot determine whether it was properly disallowed or not.”

Such we construe to be the reason for the statutory rule. State v. Chapman and State v.

Vaughan are entirely consistent with such construction. In neither case does it appear that the

cause for challenge was made known to the court.

In State v. Simas and State v. Salgado, however, this court applied the rule to a situation

where the examination of the juror had demonstrated beyond question the specific ground

upon which the challenge was based. In both cases concurring opinions criticize the majority

opinion in this respect and in State v. Salgado, Norcross, J. dissented from that portion of the

opinion stating (38 Nev. 64, 77, 145 P. 919, 924) “The right of the defendant to be tried by a

fair and impartial jury ought not to turn on the mere technical form of the objection where the

form of the challenge was not questioned by the court or opposing counsel and where the

course of the examination of the juror indicated that a proper challenge was assumed to have

been made.” In State v. Raymond, supra, where objection was made under the statute that the

specific cause had not been alleged in the making of the challenge, this court, nevertheless,

undertook to examine the question of cause stating, “We have concluded to waive this

preliminary objection and examine the question upon its merits.” The same practice was

followed in State v. Lewis, supra.

[Headnote 5]

In the case at bar, not only was no objection to the form of challenge made, but following

the challenge both ��%� �� "��3�� %��


the judge and the district attorney examined the juror upon the nature of her opinion. The

entire examination of the juror related to that one ground of challenge and clearly

demonstrates that no one misunderstood the basis for the challenge. Under these

circumstances we conclude that the challenge of the juror in conjunction with and in the light

of the examination of the juror constituted a sufficient allegation to make known the specific

ground of challenge. State v. Simas and State v. Salgado, insofar as the opinions in those

cases are opposed to that here expressed, are overruled.



____________

��72 Nev. 337, 337 (1956) Universal C.I.T. Credit Corp. v. Wagner��

UNIVERSAL C.I.T. CREDIT CORPORATION, a Foreign Corporation, Appellant, v. J. H.

WAGNER, dba WAGNER MOTOR CO., Respondent.

No. 3934

December 19, 1956 305 P.2d 363


Department No. 3.

Action by buyer to determine ownership of automobile purchased in Nevada from owner

possessing Kentucky registration certificate and bill of sale stamped “paid” by Kentucky

dealer who had previously assigned conditional sales contract to finance company. From an

adverse judgment of the lower court, the finance company appealed. The Supreme Court,

Eather, J., held that the conditional sales contract recorded in Kentucky was valid notice of

the lien of the finance company which was not estopped from asserting its lien against the

buyer and that buyer purchased only the seller's equity.


(Petition for rehearing denied February 8, 1957.)


Zenoff, Magleby and Manzonie, of Las Vegas, for Appellant.

Bonner and Rittenhouse, of Las Vegas, for Respondent.

1. Sales. Automobile conditional sales contract properly recorded in accordance with laws of Kentucky is notice to

the world of the validity of the lien or title of the holder even if automobile is taken into another state.

2. Estoppel. Where automobile buyer admitted knowledge that any liens against automobile would be filed in

Kentucky and paid only part of purchase price pending a search for liens, finance company was not

estopped from asserting its lien or title under a conditional sales contract recorded in Kentucky on claim

that buyer relied on Kentucky registration and dealer's bill of sale stamped “paid” in possession of seller.

3. Estoppel. Where Kentucky automobile dealer assigned conditional sales contract to finance company but gave

automobile buyer a bill of sale stamped “paid” after the contract had been recorded, finance company was

not estopped from asserting its lien against buyer's vendee on claim finance company was negligent in

allowing buyer to have bill of sale in possession, in absence of evidence that finance company had either

the opportunity or duty to notify buyer's vendee that lien existed.

4. Estoppel. When a failure to act or a silent standing by is relied upon to create an estoppel, the same must occur

under such circumstances that there is not only an opportunity, but also an apparent duty to act or speak.

5. Sales. Nevada buyer of automobile on which finance company held conditional sales contract properly recorded

in Kentucky purchased only the equity of the seller with title remaining in the finance company.

OPINION


Action to determine ownership of automobile.

Wagner, respondent herein, the local purchaser of the car, sued the finance company to

whom the foreign dealer ��


had assigned the conditional sales contract. Judgment was rendered for plaintiff, and

defendant appeals. Neither the foreign dealer nor the person to whom he sold the car was a

party to the action.

September 13, 1954, Purdy Motors, Inc., of Frankfort, Kentucky, sold the car to one

Morrison, on a title retaining conditional sales contract, for $3,978.88, with $1,100 paid down

by cash or trade-in, leaving a balance of $2,978.88. Embodied in the contract itself is

assignment to Universal C.I.T. Credit Corporation, appellant herein, reciting that all payments

must be made to such assignee and that Purdy was not an agent of C.I.T.

September 18, 1954, this contract was duly filed per Kentucky law in the county clerk's

office.

September 20, 1954, two days after such filing, Purdy, without knowledge of C.I.T., gave

Morrison a bill of sale of the car stamped “Paid.”

January 4, 1955, the deputy clerk in Kentucky issued what appears to be a 1955 transfer

and registration certificate showing transfer from Purdy Motors to Morrison of the car in

question. The form of such certificate contains no place for entry of any showing of the

holder of any lien against the vehicle or of any person holding legal title or other claim.

Apparently the Nevada form of official certificate indicating such outstanding claim, lien or

ownership is not used in Kentucky, and nothing in the record suggests any requirement for

such indication.

Armed with such certificate and with Purdy's bill of sale marked “Paid,” Morrison came to

Las Vegas on March 6, 1955 and arranged to sell the car to Wagner for $1,850. He certified

that there were no liens against the car and exhibited his operator's license. Wagner paid him

$1,200 down and on the same date wrote airmail to the county clerk at Frankfort, Kentucky,

requesting a rush airmail reply in enclosed envelope concerning the existence of any liens,

etc. He testified: “I knew if there were any liens it had to be filed in the county where he

resided, so I wrote the letter to the county clerk at Frankfort, Kentucky * * *.” Two days later,

March 8, he �� "��


phoned the county clerk at Frankfort, who advised that the records were being checked, and

that afternoon he received a wire advising there was a $2,000 unpaid mortgage against the

car. He wired for further details, which he then received.

The court found: “7. That the vendor (Purdy Motors) and the defendant (C.I.T., the

assignee) were jointly and severally negligent in the handling of said sale through which

negligence the plaintiff herein (Wagner) was led to believe the said automobile was free and

clear of encumbrances. 8. That the vendor's negligence is chargeable to and against vendor's

assignee.” As a conclusion the court found “that the defendant is estopped from asserting the

lien against plaintiff to the extent plaintiff was induced to part with money as part payment of

said automobile,” and that plaintiff was entitled to the automobile upon payment to defendant

of $650 or, in the alternative, that defendant might have the automobile upon payment to

plaintiff of the $1,200 plus $434.78, costs, damage, expense and attorney fees.

It would seem that the court's finding is based entirely upon the conception that after Purdy

assigned its title retaining contract to C.I.T. and after C.I.T. had recorded the same in

accordance with Kentucky law, Purdy could thereafter, by its independent and unilateral act,

in which C.I.T. did not join and of which it had no notice or knowledge of any kind, affect

C.I.T.'s legal rights, claims to ownership, etc.

This appears to have followed plaintiff's brief in the district court which asserted that

C.I.T. was estopped “because of its own negligence in allowing Morrison to have possession

of a bill of sale (executed by Purdy Motors) showing no liens except to vendor and marked

paid by vendor.” In his briefs and oral argument in this court, respondent enlarges upon this

contention by the assertion that C.I.T.'s negligence in permitting Purdy to give Morrison a bill

of sale marked “Paid” estopped C.I.T. from asserting its rights under its assigned title��


retaining contract. Respondent has made no suggestion as to how appellant could have

accomplished this.

[Headnote 1]

1. The validity of respondent's lien or its title under the assigned title retaining contract,

admittedly properly recorded in accordance with the laws of Kentucky, was notice thereof to

the world, even though the car was taken into another state. Vincent v. General Motors

Acceptance Corporation (Fla.1954), 75 So.2d. 778; Ashland Finance Company v. Mollet

(Ky.1934), 252 Ky. 491, 67 S.W.2d 717; Finance Service Co. v. Kelly (Mo.App. 1921), 235

S.W. 146; Anno. in 13 A.L.R. 2d series, 1312, 1329.

[Headnote 2]

2. As against respondent's claim of estoppel, there is absent the element that Wagner, in

making the $1,200 payment, relied upon the documents submitted by Morrison. Wagner

frankly admits that he knew that any liens against the title would be on file at Frankfort,

Kentucky, and he, accordingly, wrote the county clerk there. He apparently concluded that he

would not make the remaining payment of $650 to Morrison until he found that there were no

liens recorded, but was willing to take his chances in making the first payment of $1,200. In

doing this, he relied upon Morrison's assurance and on Purdy's bill of sale marked “Paid.”

Purdy could well have been paid for the car with proceeds of a loan or other financing method

whereunder a third person, in this case C.I.T., obtained a valid lien. Wagner evidenced a

knowledge of such possible situation.

[Headnotes 3, 4]

3. That there is an equitable estoppel against C.I.T.'s assertion of its lien because it was

negligent “in allowing Morrison to have possession of a bill of sale showing no liens except

to vendor and marked paid by vendor” is entirely without support. When a failure to act or a

silent standing by is relied upon to create an estoppel, �� "��"�� "��


the same must occur under such circumstances that there is not only an opportunity, but also

an apparent duty to act or speak. Finance Service Corporation v. Kelly (Mo. App.1921), 235

S.W. 146; Anno. in 13 A.L.R.2d 1312, 1329. There is an entire absence of showing of such

opportunity or duty.

[Headnote 5]

Respondent has succeeded to Morrison's equity in the automobile. Subject only to such

equity, title to the automobile remains in appellant.

The judgment is reversed with costs, and the case remanded to the district court with

instructions to enter judgment for defendant accordingly.


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nevada reports 1956 (72 nev.).pdf

Documents

motion of

nevada ontheir motion

default judgment

deniedthe motion

depositions of defendants

respondents ferguson

ageneral appearance

special appearance