Nevada Reports 1945-1946 (63 Nev.) PDF

63 Nev.
1, 1 (1945)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 63
____________
63 Nev. 1, 1 (1945) Johnston v. DeLay
D.H. JOHNSTON and M.E. WARD, Appellants, v. MAURICE L. DeLAY, ELSA MAY
DeLAY, Husband and Wife, WILLIAM DUNN, RUTH WALLACE DUNN, Husband
and Wife, Et Al., Respondents.
No. 3413
May 4, 1945. 158 P. 2d 547.
1. Appeal and Error.
Where trial proceeded on theory that the action was one in equity and the jury's verdict advisory only,
appellant could not contend on appeal that trial court erred in deciding the case contrary to jury's special
verdict.
Where the parties and the trial court proceed on the theory that the action is equitable in nature,
instead of legal, neither party thereafter may contend to the contrary.
3. Tenancy in Common.
A lease executed by one of two cotenants as lessor was not void, but was valid as between cotenant
executing the lease and lessee who became a cotenant with nonleasing cotenant with all rights and
privileges incident to such cotenancy.
Even though a lease signed by only one of two cotenants as lessor attempted to grant the whole estate
for a definite period, the lease was not void, but was valid as to the interests of the cotenant signing the
lease.
A cotenant failing to join in the execution of a lease on the common property could not make a valid
demand for exclusive possession as against the lessee, but at the most could only
demand to be let into possession with the lessee.
exclusive possession as against the lessee, but at the most could only demand to be let into possession
with the lessee.
6. Joint AdventuresLandlord and TenantPartnership.
An instrument by which certain property including a tavern and cabins was leased to defendant for a
fixed term, lessor to make certain repairs to the premises and to furnish water and electricity and to
receive one-third of all net profits each month as rent, did not create a partnership or joint enterprise, but
was a lease.
7. Landlord and Tenant.
A lease of premises for the operation of tavern and gambling business, and requiring lessee to pay a
certain percentage of the net profits as rent, was not void as against public policy, since under statute it
was lawful to operate gambling games under a license. Comp. Laws, secs. 3302 et seq., 10201.
8. Nuisance.
Places where gambling is carried on under license duly had under state statute are not nuisances, but
are lawful places. Comp. Laws, secs. 3302 et seq., 10201.
9. Pleading.
The filing of an amendment to conform to the proof is within the sound discretion of the trial court
and may be done after the cause has been submitted.
Lessee's cross-complaint for damages alleging that plaintiff wrongfully and personally evicted
defendant lessee was not demurrable.
11. Pleading.
Permitting defendant to file amendment to cross-complaint for damages at the end of the trial by
increasing the amount of damages demanded, to conform to the proof, was not an abuse of trial court's
discretion.
In action to recover possession of leased premises, wherein defendant filed cross-complaint for
damages for wrongful eviction, that defendant had entered into a partnership with another after execution
of the lease did not prevent him from prosecuting his cross-complaint, particularly where plaintiff made
no effort to bring in other party as defendant and no question as to misjoinder or nonjoinder of parties
was raised at the trial.
The appointment of a receiver at the instance of a lessor constitutes an eviction of lessee when the
receiver takes possession pursuant to the order appointing him.
14. Receivers.
A receiver appointed in a proceeding in unlawful detainer takes possession of the property for the
benefit of lessor.
The eviction of lessee, obtained by appointment of a receiver to take possession of leased
premises, must be by reason of the wrongful procurement of the appointment of
receiver in order to authorize evicted lessee to recover damages.
to take possession of leased premises, must be by reason of the wrongful procurement of the appointment
of receiver in order to authorize evicted lessee to recover damages.
16. Trial.
A pleading and finding of wrongful eviction of lessee, with proof of eviction by appointment of a
receiver to take charge of the property, and no pleading or finding that the appointment of the receiver
was wrongful, will not support a judgment for lessee for damages.
17. Receivers.
In Nevada, the appointment of a receiver rests entirely within the discretion of the judge or court, and
the appointment of a receiver without bond is not forbidden.
To entitle evicted lessee to damages, for eviction by the appointment of a receiver, the appointment of
a receiver need not be found to have been secured through malice or want of probable cause, but it must
be found to be wrongful.
The wrongfulness of the appointment of a receiver to take possession of leased premises need not be
alleged in a separate action for damages, and where lessors brought action for possession the whole
matter could be adjudicated in one action by setting up cause of action for damages in cross-complaint.
The supreme court will not search the record to supply a finding which the trial court should have
made in the first instance.
No express adjudication as to wrongfulness of the appointment of a receiver to take possession of
leased premises is necessary in order to give lessee a right of action for damages for eviction, if such
wrongfulness can be found or implied from the facts of the case in which the appointment was sought.
In action to recover possession of leased premises, wherein lessees filed cross-complaint for damages
for wrongful eviction brought about by the appointment of a receiver to take possession of the property,
where the wrongfulness of the appointment of a receiver was not alleged, and there was no mention of
such alleged wrongfulness in the findings of the court, no basis existed for the allowance of damages to
lessees.
Appeal from Eighth Judicial District Court, Clark County; T.J.D. Salter, Presiding Judge.
Action by D.H. Johnston and M.E. Ward against Maurice L. DeLay and others to recover
possession of certain property and for damages, wherein defendants counterclaimed for
damages.
counterclaimed for damages. From an adverse judgment, plaintiffs appeal. Affirmed in part
and reversed in part.
Morse & Graves, of Las Vegas, for Appellants.
Edgar B. Hervey, of San Diego, Calif., J.R. Lewis, of Las Vegas, and Merwyn H. Brown,
of Winnemucca (Henry F. Walker, of Los Angeles, Calif., of counsel), for Respondents.
OPINION
By the Court, Orr, J.:
In the district court the plaintiffs instituted an action asking that they be given possession
of certain property situate in Clark County, Nevada, and for damages in the sum of $10,000
for the alleged wrongful withholding of said property, and, at the instance of plaintiffs, the
trial court appointed a receiver of said property. Said receiver duly qualified and took
possession of the premises in question on February 20, 1942, and has been in such possession
since said date. Defendants counterclaimed in the action and asked damages in the sum of
$10,000, the sum being later increased to $20,000 through amendments permitted by the
court.
Plaintiffs Johnston and Ward are the owners, as tenants in common, of the property
involved in this action, each owning an undivided one-half interest therein. On September 19,
1941, an instrument in writing was executed by and between Ward and Maurice L. DeLay,
wherein the said Ward leased to DeLay the property referred to. Ward and DeLay, after
certain negotiations, arrived at an agreement relative to the leasing of the property, and the
terms and conditions of the said lease were dictated to Mrs. Perle Brown, who typed it, and it
was later signed by M.E. Ward, as lessor, and Maurice L.
Maurice L. DeLay, as lessee. The lease was not signed by plaintiff Johnston; neither was Mrs.
Johnston apprised of the deal which had been made by Ward and DeLay, before its execution,
and it nowhere appears that at any time she gave her assent thereto. The lease reads:
Lease
127266
This Indenture made this 19th day of September, 1941, between M.E. Ward, of Las
Vegas, Clark County, Nevada Lessor, and Maurice L. DeLay, Lessee,
Witnesseth: That the said Lessor has leased and by these presents does grant, demise and
lease unto said Lessee and the said Lessee has hired and taken, and by these presents does
hire and take of and from the said Lessor,
All that certain premises known as Block 11 and Block 13, situated in Midway City,
which includes tavern, cabins and house, (excepting the house with the fish pond) and such
fixtures as are now at the premises. The Lessor grants the privilege of having trailor camps on
said property.
This lease is to become effective October 1, 1941, and to extend for a period of two years
from date thereof. Payments are to be made in lawful money of the United States of America,
on a basis of percentage, towit:
A complete and accurate set of books is to be kept by Lessee, to be available at all times
for inspection by the Lessor or his Agents. Lessee, his wife, Elsa May DeLay and William
Dunn and wife, Ruth Wallace Dunn agree to furnish services free. Lessee is to act as Manager
of said premises and is to have not less than $500.00 in merchandise and equipment on hand
at all times, which shall be considered as security for the fulfillment of the contract by Lessor.
Lessor agrees to paint the buildings, furnish cabins and houses with beds, to furnish water,
electricity to the premises, and access to premises from Highway at all times. At the end of
each and every month an inventory is to be taken and after deducting operating costs the
balance of net proceeds is to be divided as follows: 66 2J3% to Lessee and 33 1J3% to
Lessor.
deducting operating costs the balance of net proceeds is to be divided as follows: 66 2/3% to
Lessee and 33 1/3% to Lessor. The Lessee agrees to pay on the 1st day of each month,
starting November 1, 1941.
The said Lessee hereby covenants to pay said Lessor in such manner and agrees further
not to suffer any alteration to be made without the written consent of Lessor. And, it is agreed
that if any rent or percentage shall be due and unpaid, or if default shall be made in any of the
covenants herein contained then it shall be lawful for the Lessor to re-enter the said premises
and to remove all persons therefrom.
And that, at the expiration of said term or any sooner determination of this lease the said
Lessee will quit and surrender the premises hereby demised, in as good order and condition as
reasonable use and wear thereof will permit, damages by the elements excepted. And if the
Lessee shall hold over the said term with the consent expressed or implied, of the lessor, such
holding shall be construed to be a tenancy only from month to month, Lessee to have an
option for a period of two additional years on the same basis. The Lessee will not be
obligated to this contract if the premises are placed under government supervision whereby
liquor or gambling are restricted.
Lessee further agreed to use Slot Machines and Music Equipment to be furnished by
Richard Roschl.
In witness whereof the said parties have hereunto set their hands this 19 day of September
1941.
M.E. Ward
Lessor
Maurice L. DeLay
Lessee
Ruth W. Dunn
Elsa Mae DeLay
Defendants went into possession under the lease on October 1, 1941, began operating a
trailer camp, installed a sewage system, and renovated the tavern. The cabins situate on the
property being in poor condition, Ward had work performed on the buildings, and as the
cabins were finished the defendants cleaned them up and started renting them.
had work performed on the buildings, and as the cabins were finished the defendants cleaned
them up and started renting them. Under the terms of the lease the lessor, Ward, agreed to
furnish water, and the supply of water being short, the possibility of development of new
sources was discussed by the parties, and DeLay gave Ward the sum of $500 as advance rent,
for water development. This money was delivered to Ward on or about November 26, 1941.
The defendants secured requisite licenses and began the operation of a bar and gambling
games in what is known as the old tavern, situate on said property. In November 1941,
defendant DeLay and Miss Mary Haney entered into a partnership, and DeLay and a Mr.
Parry entered into an agreement whereby Parry agreed to erect a building adjoining the old
tavern, at a cost of several thousand dollars. Parry was to have the right to conduct gambling
games in the new building, and was to pay 25% of the profits derived therefrom to DeLay.
DeLay was to have the right to conduct all bar business in the new building as well as the old
tavern, and all gambling games in the old tavern. The agreement between Parry and DeLay
was to become operative and effective only when consented to by Lessor Ward. On the date
of the execution of the agreement between Parry and DeLay, the lessor, Ward, signed his
name thereto under the words: Approved and consented to. Parry caused the new building
to be constructed, and it was opened for business on February 20, 1942.
On the 8th day of January 1942, plaintiff Johnston caused a notice to vacate to be served
upon DeLay. But defendant DeLay continued to occupy the premises until he surrendered
possession to the receiver.
The execution of the lease from Ward to DeLay is admitted, but the appellants contend
that the lease between Ward and DeLay was subject to an oral understanding that it would not
become effective until approved by the plaintiff Johnston. The trial court found, and there is
substantial evidence in the record to sustain that finding, that no such condition was
attached to the execution of the said lease.
sustain that finding, that no such condition was attached to the execution of the said lease.
A jury was impanelled in this case, and certain questions were submitted to them for
determination. The questions submitted and the answers thereto are as follows:
Question No. 1: Do you find from the evidence that the plaintiff, M.E. Ward, during his
negotiation with the defendants, Maurice L. DeLay, William Dunn, Ruth Wallace Dunn and
Elsa Mae DeLay, informed the said defendants that he was without authority to enter into an
agreement or lease for said property to them unless the same should be approved by the said
D.H. Johnston. The jury answered said question: Yes.
Question No. 2: Do you find from the evidence that the defendants, Maurice L. DeLay,
Elsa Mae DeLay, William Dunn and Ruth Wallace Dunn, accepted said instrument identified
as Exhibit A' attached to plaintiff's Amended Complaint with the understanding between the
plaintiff, M.E. Ward, and the defendants herein that said instrument would be approved by
the plaintiff herein, D.H. Johnston. The jury answered said question: Yes.
1. The court rejected the answers of the jury on the ground that the evidence did not
sustain them. Appellants contend that the verdict of the jury was binding. Respondents
answer that this is an action in equity, and that in an equity action there is no right to a trial by
jury; that in an equity action where a jury is impanelled the verdict is merely advisory and
may be disregarded by the chancellor in determining the case. Crosier v. McLaughlin, 1 Nev.
348; Lake v. Tolles, 8 Nev. 285; Brichetto v. Raney, 76 Cal. App. 232, 245 P. 235; Union Oil
Co. v. Reconstruction Oil Co., et al., 20 Cal.App. 170, 66 P.2d 1215.
Appellants deny that the action was one in equity, but we think that the trial was had by
both parties and the court upon the theory that the action was one in equity and that the
verdict of the jury was merely advisory.
At the time of the return of the answers by the jury to the questions submitted, appellants
made no claim that the verdict was final and that judgment could be entered thereon, and
consented that the matter be submitted to the court on briefs for decision. The trial having
been had on the theory that the action was one in equity and the jury's verdict advisory only,
the appellants cannot now claim error on the part of the trial court in deciding the case
contrary to the jury's special verdict.
2. This court will not decide the question of whether the action was one at law or in
equity, but will treat it as did the parties in the lower court, as being an action in equity.
Where the parties and the trial court proceed on the theory that the action is equitable, instead
of legal, in nature, neither party thereafter may contend to the contrary. McStay Supply Co. v.
Stoddard et al., 35 Nev. 284, 132 P. 545. See, also: Costello v. Cunningham et al., 16 Ariz.
447, 147 P. 701; Radermacher v. Daniels et al., 64 Idaho 376, 133 P.2d 713; Johnson v.
Niichels, 48 Idaho 654, 284 P. 840; Coughlin v. Farmers, etc., Bank, 199 Minn. 102, 272
N.W. 166; Moss v. Goodhart et al., 47 Mont. 257, 131 P. 1071; Bode v. Rollwitz, 60 Mont.
481, 199 P. 688; Stripe v. Meffert et al., 287 Mo. 366, 229 S.W. 762; Limerick v. Jefferson
Life Ins. Co., 67 Okl. 178, 169 P. 1080; Newsome v. Allen et al., 86 Wash. 678, 151 P. 111;
Belcher et al. v. Adkins et al., 279 Ky. 680, 132 S.W. 2d 52.
Further, a party will not be permitted to sit silently by, but must assert his position at the
earliest possible moment. 3 Am. Jur. 415, sec. 871 et seq.
Appellants make a rather extensive argument as to the admissibility of parol evidence to
sustain their contention that the written lease between Ward and DeLay was subject to an oral
understanding that it was not to be effective until approved or disapproved by Mrs. Johnston.
The trial court admitted this evidence and later rejected it as untrue, hence the question of its
admissibility need not be determined.
3, 4. Appellants further contend that Ward, having attempted to lease all the common
property without the consent or authorization of his cotenant, Johnston, said lease was
void and that the cotenants, Ward and Johnston, had the right to oust the lessee.
attempted to lease all the common property without the consent or authorization of his
cotenant, Johnston, said lease was void and that the cotenants, Ward and Johnston, had the
right to oust the lessee. Appellants also argue that DeLay took the position that he was
entitled to the exclusive possession of the premises for the term of the lease, and excluded the
cotenant, Johnston. Such is not the case. All that DeLay claimed was that he acquired the
rights and privileges of Ward, and that through the lease he, DeLay, became the cotenant with
Johnston. The contention of DeLay in this respect must be sustained.
The lease as executed by Ward is not void; it is binding and valid between Ward and
DeLay, and by the terms thereof DeLay, during the period of the lease, became a cotenant
with the nonleasing cotenant, Johnston, and DeLay had all rights and privileges incident to
such cotenancy. Motor Aid v. Ray, 53 Ga. App. 772, 187 S.E. 120. Even though the lease in
this case attempts to grant the whole estate for a definite period, the lease is not void, but is
valid as to the interest of Ward. Lanyon Zinc Co. v. Freeman, 68 Kan. 691, 75 P. 995;
Satterlee v. Umenthum, 47 S.D. 372, 198 N.W. 823; Grundy v. Martin et al., 143 Mass. 279,
9 N.E. 647; De La Pole v. Lindley et al., 131 Wash. 354, 230 P. 144; Thalis v. Wurdeman, 73
App. D.C. 322, 121 F. 2d 70; Swartzbaugh v. Sampson et al., 11 Cal. App. 2d 451, 54 P.2d
73.
5. The demand of cotenant Johnston was for exclusive possession; at no time did she
demand to be let into possession with the defendant DeLay, which would be the most she
would be entitled to. Lee Chuck v. Quan Wo Chong & Co., 91 Cal. 593, 28 P. 45; King v.
Dickerman, 11 Gray 480, 77 Mass. 480.
6. Appellants advance the theory that the lease between Ward and DeLay was not a lease
but, if anything, created a partnership, joint venture or joint enterprise. We do not think the
lease bears such a construction. Smith v. Schultz et al., 89 Cal. 526, 26 P. 1087.
7, 8. Appellants assert that the lease is void as against public policy, in that the lessor was
to receive a certain percentage of the proceeds received from gambling games which were to
be carried on upon the premises. It is common practice for rents to be paid for leases on
business properties based fully or partially upon a percentage of either the gross or net profits
of the business. Beckett v. City of Paris Dry Goods Co., 14 Cal. 2d 633, 96 P.2d 122. In many
states gambling is prohibited by statute, and in such states contracts based thereon are malum
prohibitum. In this state the subject of gambling is regulated by section 3302 et seq., vol. 1,
1931-1941 Supplement, and section 10201, vol. 2, 1931-1941 Supplement, of Nevada
Compiled Laws. These statutes make it unlawful to operate certain gambling games without
first securing a license. If the license is obtained, it is lawful to operate them. Places where
gambling is carried on under license duly had are not nuisances, but are held to be lawful
places. Ex parte Pierotti, 43 Nev. 243, 184 P. 209; In re Deauville, Inc., D.C., 52 F.2d 963;
Christensen v. Valdemar No. 12, 46 Nev. 150, 208 P. 426.
Appellants cite the cases of Burke v. Buck, 31 Nev. 74, 99 P. 1078, 22 L.R.A., N.S., 627,
21 Ann. Cas. 625; Scott v. Courtney, 7 Nev. 419, and Menardi v. Wacker, 2 Nev. 169, 105 P.
287, Ann. Cas. 1912c, 710. The statutes under which these cases were decided contained an
express provision that the license to operate would protect the licensee against criminal
prosecution. There is no such restrictive provision in our present law, and, further, this
important distinction between those cases and the case at bar should be kept in mind; the
contract between Ward and DeLay was not based on the profits or losses of a game played by
them, whereby one would take a chance of winning or losing to the other; it was to divide the
profits, if any, of a business which DeLay had a lawful right to conduct; it was not a case of a
game between them where one was to lose and the other to win.
The case of Thiess v. Rapaport, 57 Nev. 434, 66 P.2d 1000, 69 P.2d 96, cited by
appellants, has no application here. The gambling debt set up in that case arose from playing
black jack in Seattle, Washington, and the situation was quite different from the facts in
this case. An inspection of the lease discloses that it does not contemplate any illegal activity.
9-11. Appellants urge that the trial court committed error in overruling their demurrer to
the cross-complaint and permitting cross-complainants to amend their ad damnum clause at
the end of the trial. This amendment was allowed to conform to the proof. It is asserted that
the cross-complaint fails to state a cause of action, but we think that it does state a cause of
action to the effect that the plaintiffs wrongfully and personally evicted the defendants. The
making or filing of an amendment to conform to the proof is within the sound discretion of
the trial court, and this may be done after the cause has been submitted. Hancock v. Board of
Education, 140 Cal. 554, 74 P. 44; Valencia v. Shell Oil Co. et al., 23 Cal.2d 840, 147 P.2d
558; Ramboz v. Stansbury, 13 Cal. App. 649, 110 P. 472; Gaddis v. Grant, 39 Cal. App. 437,
179 P. 410; Smart v. Valencia, 49 Nev. 411, 248 P. 46; Castleman v. Redford, 61 Nev. 259,
124 P.2d 293; Shields v. Orr Extension Ditch Co., 23 Nev. 349, 47 P. 194; Federal Mining &
Engineering Co. v. Pollak, 59 Nev. 145, 85 P. 1008. Under the circumstances of this case, we
cannot say that the trial court abused its discretion in permitting the amendment.
12. Appellants further claim that the fact that DeLay entered into a partnership with Mary
Haney renders the judgment erroneous, that because of such partnership DeLay is not a real
party in interest and therefore should not have been permitted to prosecute the case and
recover damages. The lease was to DeLay, and Mary Haney not being a party to the lease, it
seems it was perfectly proper for DeLay to bring the action to enforce his rights, and it
appears that appellants, being advised of the DeLay-Haney agreement, made no effort to
bring in Mary Haney as a party.
to bring in Mary Haney as a party. Neither was any question raised by way of demurrer as to
misjoinder or nonjoinder of parties, nor was the question raised at the trial, therefore the
question of defect in parties, if any, was waived.
In a supplemental brief respondents have discussed the question as to whether at the
commencement of the action or at any time thereafter through completion of the trial either
plaintiff was entitled to possession or right of possession of the premises. There is substance
to this contention, but in view of the conclusions we have reached on questions hereinbefore
discussed in this opinion, we deem it unnecessary to decide this question.
We now take up the question of the damages allowed respondents for their alleged
wrongful eviction from the premises. According to the issues made by the cross-complaint,
answer and reply thereto, the damages which the court found defendants and
cross-complainants had sustained was because of the wrongful eviction of the said defendants
and cross-complainants by plaintiffs. The cross-complaint alleges that the plaintiffs evicted
the defendants and cross-complainants, and the finding of the court follows that allegation.
It is conceded that possession of the property was taken from the defendants by a receiver
appointed at the instance and request of the plaintiffs. There is no allegation in any pleading
that in securing the appointment of the receiver the plaintiffs acted wrongfully or maliciously
or without probable cause, nor is there a finding by the court that the action of the plaintiffs in
securing the appointment of the receiver was wrongful or malicious or without probable
cause. So far as the pleadings are concerned, the only place the appointment of a receiver is
brought into the issues is in the answer to the cross-complaint, wherein the plaintiffs and
cross-defendants set out the fact of the appointment of the receiver and of his having taken
possession under order of the court. Respondents, placing their denial on the ground that they
did not have sufficient knowledge to otherwise answer, deny that a receiver had taken
possession of, or at any time had possession of, the property.
answer, deny that a receiver had taken possession of, or at any time had possession of, the
property. Appellants, in their brief, raise the point that there is no allegation in the
cross-complaint that the appointment of the receiver was improper or that the receiver acted
wrongfully in taking possession of the premises.
13. The appointment of a receiver at the instance of a lessor constitutes an eviction of the
lessee when the receiver takes possession pursuant to the order appointing him. Telegraph
Avenue Corporation v. Raentsch, Cal. App., 261 P. 1053; Id., 205 Cal. 93, 269 P. 1109, 61
A.L.R. 366; Redmon v. Graham, 211 Cal. 491, 295 P. 1031.
14. Also, a receiver appointed in a proceeding in unlawful detainer takes possession of the
property for the benefit of the lessor. Redmon v. Graham, 211 Cal. 491, 295 P. 1031;
Telegraph Avenue Corporation v. Raentsch, 205 Cal. 93, 269 P. 1109, 61 A.L.R. 366, 367;
Gordon v. Harris, 94 Cal. App. 682, 271 P. 779.
15, 16. However, the eviction thus obtained must be by reason of the wrongful
procurement of the appointment of the receiver in order to authorize the evicted lessee to
recover damages. While the appointment results in eviction, the cause of action for damages
which may arise therefrom does not stem from the eviction itself; that fact is considered in
measuring the damages; the cause of action arises out of the wrongful procurement of the
appointment of a receiver. Eviction is occasioned by the court, through its duly appointed
agent. The court cannot be sued, but the law provides for compensation to a party damaged by
wrongful eviction by an agent of a court, by placing liability on a party for wrongfully
instituting the action which results in eviction. We repeat: damages are allowed not for
wrongful eviction, but for wrongful procurement of the appointment of the agent of the court.
To sustain a judgment for damages under such circumstances, a party must plead and prove,
and the court must find, a wrongful procurement of the appointment of a receiver.
a wrongful procurement of the appointment of a receiver. A pleading and finding by the court
of wrongful eviction of a party, with proof of eviction by a receiver, and no pleading or
finding that the appointment of the receiver was wrongful, will not support a judgment for
damages. The following cases deal with the right to recover damages for wrongful
appointment: Bank of Shirley v. Bonds et al., 178 Ark. 1079, 13 S.W. 2d 816; Lyon v. United
States Fidelity & Guaranty Co., 48 Mont. 591, 140 P. 86, Ann. Cas. 1915d, 1036. In Riner v.
Ramey-Milburn Co., 166 Ark. 221, 265 S.W. 963, 964, the following appears:
But in jurisdictions like ours, where there is no such statute, and where there is no law
forbidding the appointment of a receiver without bond, and where the matter of the
appointment of such receiver depends entirely upon the discretion of the court, judge, or
chancellor, there can be no liability for damages growing out of the appointment of a receiver,
in the absence of allegations and proof to the effect that the appointment was sought and
obtained maliciously, or without probable cause. (Italics supplied.)
17. It will be noted that this case makes a distinction, as to the proof required and showing
to be made, between an action on the bond and one against the parties without reference to
the bond. In Nevada we have no statute or law forbidding the appointment of a receiver
without bond, and the appointment of a receiver in this state rests entirely within the
discretion of the judge or court.
18. We do not hold that the appointment must be found to have been secured through
malice or a want of probable cause, but it must at least be found to be wrongful. In
Thornton-Thomas Mercantile Co. v. Bretherton, 32 Mont. 80, 80 P. 10, at page 15, column 1,
it is said:
The third and fifth instructions are attacked because they ignore the questions of malice
and want of probable cause.
cause. * * * According to our view of the law, these issues were rightfully eliminated from
the consideration of the jury.
See, also: Wagoner Oil, etc., Co. v. Marlow et al., 137 Okl. 116, 278 P. 294, at page 310.
In the case of K.C. Oil Co. v. Harvest Oil, etc., 80 Okl. 61, 194 P. 228, a cross-petition
was filed, and the wrongfulness of the appointment of a receiver was alleged. The
cross-petition in that case was similar to the office performed by the cross-complaint in the
instant case.
19, 20. In the case of Strum v. Blair, 182 Ill. App. 413, the wrongfulness of the
appointment was alleged in a separate action for damages. In the case at bar the whole matter
was attempted to be adjudicated in the one action, by setting up a cause of action for damages
in a cross-complaint, which we believe to be proper practice. If the facts in this case were
such as to establish that the procurement of the appointment of the receiver was wrongful,
and had the pleadings put the matter in issue, the court could have made its finding, from the
evidence adduced, as to such wrongfulness of the appointment, and could have entered its
judgment thereon. That was a matter for the trial court to determine in the first instance. This
court will not search the record to supply a finding in that respect.
21, 22. The case of Warren v. DeLong, 59 Nev. 481, 97 P.2d 792, establishes the law of
this state to be that there need be no express adjudication as to the wrongfulness of the
appointment of the receiver in order to give a right of action for the recovery of damages, if
such wrongfulness can be found or implied from the facts of the case in which the
appointment was sought. It will be noted that in the Warren v. DeLong case the action for
damages was an independent action, and the wrongfulness of the appointment was expressly
alleged and that fact was expressly found by the court. In a case such as the one here, where
not only the wrongfulness of the appointment of the receiver was not alleged, but the
appointment was entirely ignored in the pleadings by defendants and cross-complainants,
save a denial of the possession of the property by the receiver, on the ground of lack of
knowledge, also no mention thereof in the findings of the court, it is our conclusion there
exists no basis or foundation for the allowance of damages.
of the possession of the property by the receiver, on the ground of lack of knowledge, also no
mention thereof in the findings of the court, it is our conclusion there exists no basis or
foundation for the allowance of damages. The judgment in this case is for wrongful eviction
of defendants by plaintiffs. The proof is that the eviction occurred by reason of the fact that
the plaintiffs secured the appointment of a receiver, who took possession. Hence there is no
evidence in the record to support the judgment; the evidence adduced at the trial was directly
contrary to the allegations of the cross-complaint and the finding of the court.
The judgment insofar as it provides that the plaintiffs take nothing by reason of their action
is sustained, and the judgment insofar as it allows damages to the defendants and
cross-complainants is reversed.
Each side to pay their own costs.
On Petition For Rehearing
August 6, 1945. 161 P.2d 350.
1. Pleading.
Cross-complaint which alleged that cross-complainant was wrongfully ejected by
plaintiffs and findings following such allegation were based on theory that damages
sustained resulted from a wrongful eviction by plaintiffs and not from wrongfully
procuring the appointment of receiver.
Petition denied.
Morse & Graves, of Las Vegas, for Appellants.
Edgar B. Hervey, of San Diego, Calif. (J.R. Lewis, of Las Vegas, Merwyn H. Brown, of
Winnemucca, and Henry F. Walker, of Los Angeles, Calif., of counsel), for Respondents.
OPINION
In the petition for rehearing filed by respondents they do not take issue with our holding
that an allowance of damages for wrongful eviction by a receiver could be made only in the
event that the procurement of the appointment of the receiver was unlawful.
damages for wrongful eviction by a receiver could be made only in the event that the
procurement of the appointment of the receiver was unlawful. But respondents argue that:
the pleadings and findings (supported by the evidence) sustain the award of damages for the
eviction of, and withholding from, defendants of the premises through the wrongful act of
plaintiffs in procuring the appointment of the receiver. Respondents proceed to set out
certain findings and certain parts of the pleadings which they maintain sustain their position.
However, the allegation of the cross-complaint, as we read it, sets up an entirely different
theory. That allegation reads as follows: That thereafter on or about February 20, 1942, and
while defendant Maurice L. DeLay was in lawful and peaceful possession of said premises,
under and by virture of the terms of said agreement, plaintiffs did wrongfully, and unlawfully
and forcefully eject said defendant from said premises and the whole thereof, and deprive
defendant of the use and occupancy thereof, and thence ever since has continued so to
wrongfully and unlawfully deprive said defendant of the use and occupancy of said premises,
all to his damage in the sum of Twenty Thousand Dollars ($20,000.00).
And the principal finding of the court upon which the judgment was based follows the
allegation of the cross-complaint hereinabove set out. Said finding reads as follows: That it
is true that on February 20, 1942, and while defendant Maurice L. DeLay was in lawful and
peaceful possession, under and by virtue of the terms of the lease agreement first hereinbefore
referred to, of the premises in said lease agreement described, plaintiffs did wrongfully and
unlawfully and forcefully eject said defendant from said premises and the whole thereof, and
did thereafter deprive said defendant of the use and occupancy thereof, and thence ever since
have continued, and do still continue, so to wrongfully and unlawfully deprive said defendant
of the use and occupancy of said premises, all to his damage in the sum of Twenty-five
Thousand, Nine Hundred Seventy Three dollars and seventy-six cents {$25,973.76)."
Twenty-five Thousand, Nine Hundred Seventy Three dollars and seventy-six cents
($25,973.76).
Following this finding the court entered its judgment in favor of the respondents in the
said sum of $25,973.76.
We are convinced, from an inspection of the allegation of the cross-complaint and of
Finding XV hereinabove set out, that the cause of action was based upon the theory, and the
court so found, that the damages sustained resulted from a wrongful eviction of respondents
by appellants, and not from wrongfully procuring the appointment of the receiver.
The petition for rehearing is denied.
____________
63 Nev. 19, 19 (1945) In Re Powell's Estate
In The Matter of the Estate of HARRY F. POWELL, Sometimes Known as and Called
H.F. POWELL, Deceased.
JOHN V. COPREN, Appellant, v. GEORGE A. MONTROSE, as Administrator of the
Estate of HARRY F. POWELL, Sometimes Known as and Called H.F. POWELL,
Deceased, Respondent.
No. 3425
May 4, 1945. 158 P.2d 545.
Service of notice of appeal on appellee or his attorney within three days, prescribed by statute, after
filing of notice with clerk of court wherein judgment or order appealed from was entered, is mandatory
and jurisdictional. Comp. Laws, sec. 9385.61.
Evidence showed that notice of appeal from district court's order, fixing administrator's fees, was not
served on administrator or his attorney by mail within three days, prescribed by statute, after filing
thereof with clerk of such court. Comp. Laws, secs. 8920, 9385.61.
3. Evidence.
A postmark on letter is circumstance tending to show that letter was not put in post office until day
shown by such mark.
4. Evidence.
Persons in charge of receiving and transmitting mail are presumed to have performed their duties in
regular and proper manner.
Appeal from First Judicial District Court, Lyon County; Clark J. Guild, Judge.
In the matter of the estate of Harry F. Powell deceased. From an order fixing fees of
George A. Montrose, as administrator of the estate, John V. Copren appeals. On motions to
dismiss the appeal. Appeal dismissed.
John V. Copren, of San Francisco, Calif., in pro. per.
George L. Sanford and John R. Ross, both of Carson City, for Respondent.
OPINION
By the Court, Ducker, J.:
This case is before us on motions to dismiss the appeal from an order fixing fees, and to
strike certain portions of the record on appeal, as well as the record in its entirety. The motion
to dismiss was made on the grounds following:
(1) That no notice of appeal was served upon the said George A. Montrose, as
administrator of said estate, and/or upon George L. Sanford, or upon John R. Ross, his
attorneys, within three days after filing of said notice of appeal with the clerk of the First
judicial district court of the State of Nevada in and for the county of Lyon, in which the order
was made.
(2) That more than thirty days elapsed between the filing of the notice of appeal and
undertaking for costs on appeal in the lower court, and the filing of appellant's transcript on
appeal with the clerk of said court.
(3) That more than twenty days have elapsed since the appellant above named filed his
notice of appeal and undertaking for costs on appeal, and appellant has failed and
neglected to present his bill of exceptions for settlement to the judge of said lower court.
the appellant above named filed his notice of appeal and undertaking for costs on appeal, and
appellant has failed and neglected to present his bill of exceptions for settlement to the judge
of said lower court.
1. As we think that the appeal must be dismissed on the first ground, we need not consider
the second and third, or the motions to strike. Sec. 9385.61, N.C.L. Supp. provides:
An appeal is taken by filing with the clerk of the court in which the judgment or order
appealed from is entered, a written notice stating the appeal from the same or some specific
part thereof, and within three days thereafter serving a similar written notice or copy thereof
on the adverse party or his attorney; * * *.
Service of the notice of appeal within the prescribed time is mandatory and jurisdictional.
Johns Manville Inc. v. Lander County, 48 Nev. 244, 247, 229 P. 387, 234 P. 518;
Cunningham v. Cunningham, 60 Nev. 191, 102 P.2d 94, 105 P.2d 398.
2, 3. It appears from the affidavit of the clerk of the lower court that written notice of
appeal was filed in his office on August 12, 1944. It is conceded that no notice of appeal was
served on the administrator of the estate. But appellant contends that such service was made
by mail under the provisions of sec. 8920, N.C.L., and in apt time, upon George L. Sanford
and John R. Ross, attorneys for the administrator. His proof of that service is by his affidavit
appearing in the record sent up, and by his affidavit filed here in opposition to the motion to
dismiss. In the former affidavit made on October 25, 1944, he avers that on the 14th day of
August 1944 he served a true and correct copy of the notice of appeal upon the attorneys for
the administrator, John R. Ross and George L. Sanford, by enclosing the same in a separate
sealed envelope addressed to each of them at his office in Carson City, Nevada, and by
depositing said envelopes, postage fully prepaid, on said 14th day of August 1944 in the
United States Post Office at Reno, Washoe County, Nevada. He avers that on said date at
said Reno he made a like service upon the clerk of said court at Yerington, Lyon County,
Nevada.
said Reno he made a like service upon the clerk of said court at Yerington, Lyon County,
Nevada. He made averments of other facts essential to service by mail. Attorneys for the
administrator, John R. Ross and George L. Sanford, in support of the motion to dismiss, filed
their joint affidavit in which it is averred, among other averments, that on the 17th day of
August 1944 each received through the United States mail at Carson City, Nevada, what
purported to be a true copy of the notice of appeal filed by appellant in his own proper person
with said clerk on the 12th day of August, 1944; that in each instance the envelope in which
said notice of appeal was mailed to each of said affiants, appears to have been mailed in
Reno, Nevada, at the hour of 4:30 p.m. on the 16th day of August, 1944; that said envelopes
showing the date and hour of mailing, as aforesaid, are attached to and made a part of said
affidavit by reference. Copies of said notice of appeal were also attached. There is also filed
in support of the motion to dismiss the affidavit of Pete Peterson, in which it is averred: That
he is now and at all times continuously from and after the 1st day January, 1937, was the duly
and regularly appointed, qualified and acting Postmaster for the City of Reno, County of
Washoe, State of Nevada. That for the period of time from August 12, 1944 to and including
August 16, 1944, both dates inclusive, the practice followed by the Reno Postoffice in the
collecting and dispatching of outgoing mail from the City of Reno and surrounding territory
served by said Postoffice, was as follows: (1) All mail deposited in drop boxes was handled
as follows: In residential Reno all mail was collected twice daily, and in down town Reno
four times daily. An envelope bearing a 4:30 cancellation mark indicates that it was collected
not later than 4 p.m. on the date appearing in the postmark. (2) An envelope on which appears
a cancellation mark bearing the following words and figures, Reno, Nevada, Aug. 16, 4:30
p.m.' indicates that said envelope was mailed in the City of Reno on the 16th day of August,
1944, was collected from the drop box in which it was mailed not later than 4:30 p.m. of
said day, and such letter thereafter processed for destination given in the address on the
envelope. An envelope so marked, being addressed to Carson City, Nevada, and showing
that it had been cancelled at 4:30 p.m. on August 16, 1944, would indicate that it had
been dispatched with the regular Reno to Carson-Minden mail, would have been loaded
on the Reno-Minden train on the date of August 17, 1944, which train leaves Reno for
Carson City and Minden at approximately 7:30 a.m.
1944, was collected from the drop box in which it was mailed not later than 4:30 p.m. of said
day, and such letter thereafter processed for destination given in the address on the envelope.
An envelope so marked, being addressed to Carson City, Nevada, and showing that it had
been cancelled at 4:30 p.m. on August 16, 1944, would indicate that it had been dispatched
with the regular Reno to Carson-Minden mail, would have been loaded on the Reno-Minden
train on the date of August 17, 1944, which train leaves Reno for Carson City and Minden at
approximately 7:30 a.m. of said day.
In his affidavit made in opposition to the motion to dismiss, and to the affidavits in
support of that motion, appellant reiterates that he served the notice of appeal as set forth in
the affidavit of service contained in the transcript of appeal. He avers that having no
information or belief upon the matters set forth in the affidavit of the Reno postmaster, denies
all thereof, and alleges that said affidavit is not based upon fact but supposition alone. On
information and belief he avers that the copies of notice of appeal referred to in the joint
affidavit of Ross and Sanford were received by them prior to the time stated in their affidavit
and were delivered in the regular course of the mail. He further avers that after mailing said
notices of appeal and on or about the 16th day of August 1944 he wrote a letter to said
George L. Sanford and John R. Ross and mailed the original of said letter to said George L.
Sanford, addressed to him at Carson City, Nevada, and mailed the copy of said letter to said
John R. Ross, addressed to him at Carson City, Nevada, each to their respective office
address, requesting a copy of the court order made on June 14, 1944, and on information and
belief avers that these are the envelopes referred to in their affidavit.
A question of fact is thus presented as to whether the notice of appeal filed with the clerk
of the court on August 12, 1944, was duly served within the three days required by said
section 9385.61.
If appellant served a copy of notice of appeal on the 14th day of August 1944 as he
alleged in his affidavit, the service was in time because, under the provisions of sec.
14th day of August 1944 as he alleged in his affidavit, the service was in time because, under
the provisions of sec. 8920, supra, service is complete at the time of the deposit in the post
office. But it is otherwise if the deposit was not made until August 16, 1944, for then the
service was one day late. A belated service is equivalent to no service at all, for there must be
an actual service within the time required by the statute. Our consideration of all the evidence
impels us to conclude that the preponderance thereof is against appellant's contention that the
service of the notice of appeal was made in the time prescribed by the statute. The postmarks
on the envelopes received by each of the administrator's attorneys are thus marked: Reno,
Nev., Aug. 16, 4:30 p.m. 1944. No contention is made that the postmarks are not genuine.
The averment made in appellant's counter affidavit that the envelopes bearing those
postmarks were envelopes enclosing letters to the attorneys which he had mailed on or about
August 16, 1944, requesting a copy of an order made by the court, is mere conjecture and
bears the implication that there has been a substitution. It is entitled to no weight. Counsel for
the administrator are reputable attorneys of this court. One of them is a past president of the
state bar of Nevada. Their affidavit and their characters, alike, refute the covert charge. A
postmark on a letter is a circumstance tending to show that the letter was not put in the
postoffice until the day shown in the postmark. Shellburne Falls Nat. Bank v. Townsley, 102
Mass. 177, 3 Am. Rep. 445; Hurley Bros. v. Haluptzok, 142 Minn. 269, 171 N.W. 928; Ellis'
Adm'r v. Planters' Bank, 7 How., Miss. 235; 2 Greenleaf Ev. sec. 193.
4. When as here, two letters written by the same individual, bear a postmark of the same
date, the circumstances become stronger because the chance that both were overlooked and
not stamped in the post office until a later date than their deposit, becomes less likely. That
two such letters were not noticed from the time of their deposit, as claimed on the 14th of
August, until the 16th of that month, is so improbable as to cast doubt upon the verity of
appellant's affidavit.
16th of that month, is so improbable as to cast doubt upon the verity of appellant's affidavit.
The inference of a deposit in the post office on the latter date gains force from the affidavit of
the Reno postmaster as to the regularity of procedure in that office in collecting and
transmitting mail, and from the presumption that those in charge of receiving and transmitting
mail perform their duties in a regular and proper manner.
In reaching the conclusion that the preponderance of the evidence is against our
jurisdiction, we have also weighed appellant's affidavit in connection with the fact that his
integrity as an attorney at law has been recently impeached by the board of governors of the
state bar and the supreme court of California, for dealings with clients, which resulted in his
suspension from the practice of law in that state for three years and three months. In re
Copren, Cal. 152 P.2d 729.
The appeal is hereby dismissed.
June 4, 1945.
Per Curiam.
Rehearing denied.
____________
63 Nev. 26, 26 (1945) Petition of Fuller
In the Matter of the Petition of MONROE K. FULLER for a Judgment Establishing the
Fact of the Death of MAY BELL FULLER, and the Termination of her Interest in the
Property Herein Described.
WILLIAM J. BRINE, CLESSON E. BRINE and ROBERT BRINE, Appellants, v.
MONROE K. FULLER, Respondent.
No. 3421
June 4, 1945. 159 P.2d 579.
1. Pleading.
In husband's proceeding to terminate deceased wife's interest in real property, allegation of defendants
that property was purchased out of wife's separate funds was not new matter constituting a defense
within statute and was not admitted by failure to reply. Comp. Laws, secs. 9895, 8602.
2. Descent and Distribution.
Section 9895, relating to proceedings for determination of termination of deceased person's interest in
real property, was not repealed by section 9882.326, relating to estates of deceased persons. Comp. Laws,
secs. 9882.243, 9882.297, 9882.306, 9882.326, 9895.
3. Husband and Wife.
Community property, upon wife's death, vested in husband without administration and did not
constitute any part of wife's estate. Comp. Laws, sec. 3395.01.
Deceased wife's sons by former marriage, who appeared generally by filing an answer going to merits
in surviving husband's proceeding for determination of the termination of deceased wife's interest in real
property, could not object for first time on appeal that lower court erred in assuming jurisdiction and
rendering judgment that the property, on wife's death, vested in husband, since district court had
jurisdiction to determine whether property was separate or community and to decide who owned it after
wife's death, and decision was binding upon defendant sons unless records disclosed prejudicial error.
Comp. Laws, secs. 8382, 9895; Const. art. 6, sec. 6.
From the time property was deeded by third person to husband during marriage until time when he
deeded it to wife, the premises were presumptively community property, although presumption was
rebuttable. Comp. Laws, sec. 3356.
By deed of husband to wife of real property, the property became presumptively the separate property
of the wife, although presumption was rebuttable. Comp. Laws, sec. 3373.
The husband may convey all his interests in community property to his wife for a valuable
consideration or by way of gift, but the evidence necessary to show a transmutation of community
property into separate property must be clear and convincing.
In husband's proceeding to terminate deceased wife's interest in real property, evidence supported
finding that property was paid for with community funds and that it was community property at time of
wife's death, and hence any presumption arising from husband's conveyance to wife that premises were
separate property was overcome. Comp. Laws, secs. 3373, 3395.01.
In husband's proceeding to terminate deceased wife's interest in real property, husband was not
estopped, because of deed from himself to wife, from offering evidence to show that premises were
community property at time of wife's death. Comp. Laws, sec. 3373.
10. Witnesses.
In husband's proceeding to terminate deceased wife's interest in real property which husband had
conveyed to wife, but which he claimed was community property, objections to questions to plaintiff
relative to who negotiated for the property on ground that answers constituted privileged matter between
husband and wife was properly overruled where husband was not examined as to any such
communication, since mere fact that transactions took place during marriage did not show that husband's
knowledge was derived from communications made to him by his wife. Comp. Laws sec. 8971.
Defendants having, in trial court, based their objections to evidence upon one subdivision of dead
man's statute, could not, for first time on appeal, also rely on another subdivision of the statute. Comp.
Laws, sec. 8966.
12. Witnesses.
Disqualifying provisions of dead man's statute should be construed so as not to exclude testimony
unless clearly inhibited by their terms. Comp. Laws, sec. 8966.
13. Witnesses.
In husband's proceeding to terminate deceased wife's interest in real property, plaintiff was not
disqualified to testify by dead man's statute, where testimony did not relate to a transaction between him
and decedent, and decedent was not the other party to such transaction. Comp. Laws, sec. 8966.
In husband's proceeding to terminate deceased wife's interest in real property which husband had
acquired during marriage and which he had conveyed to wife but claimed the property was
community property, evidence of wife's failure to file an inventory of her separate
estate was properly admitted.
property was community property, evidence of wife's failure to file an inventory of her separate estate
was properly admitted. Comp. Laws, sec. 3359.
Appeal from Second Judicial District Court, Washoe County; A.J. Maestretti, Judge.
Proceeding by Monroe K. Fuller against William J. Brine and others for a judgment
establishing the fact of the death of May Bell Fuller and the termination of her interest in the
property described. From the judgment, the defendants appeal. Affirmed.
H.R. Cooke, of Reno, for Appellants.
Harold O. Taber, of Reno, for Respondent.
OPINION
By the Court, Taber, C.J.:
Section 1 of An Act for the determination of the termination of the interests of a deceased
person in real property, approved February 23, 1939, Stats. of Nev. 1939, chap. 18, p. 14, 2
N.C.L. Supp., sec. 9895, pp. 1382, 1383, reads:
Whenever title to or an interest in real property is affected by the death of any person, any
other person who claims any interest in such real property, which interest is affected by the
death of such person, may file in the district court of any county in which any part of such
real property is situated, a verified petition setting forth those facts, and particularly
describing the real property, the interest of the petitioner, and the interest of the deceased
therein.
The clerk shall set the petition for hearing by the court, shall give notice thereof by
causing a notice of the time and place of the hearing to be posted at the courthouse in the
county where the court is held, at least ten days before the hearing; provided, the court may
order such further notice to be given as in his judgment may seem proper.
such further notice to be given as in his judgment may seem proper.
The court shall take evidence for or against the petition, and may render judgment
thereon establishing the fact of such death and the termination of the interest of the deceased
in the real property described in the petition.
A certified copy of the decree may be recorded in the office of the recorder of each
county in which any part of the land is situated.
Pursuant to said statute, and on the 25th day of January 1944, Monroe K. Fuller filed his
verified amended petition in the Second judicial district court, Washoe County. The petition
alleges that May Bell Fuller died in the city of Reno, Washoe County, Nevada, on the 12th
day of December 1943; that at the time of her death she was a resident of the State of Nevada
and the wife of petitioner; that she and petitioner were married and had been living together
as husband and wife for many years prior to her death; that at the time of her death she left
estate in said Washoe County consisting of a community interest in certain real property
(particularly described in the petition) located in said county; that the whole of said property
was the community property of said May Bell Fuller and Monroe K. Fuller, having been
acquired by them subsequent to their marriage; that as the surviving husband of said May Bell
Fuller, petitioner is entitled to have the whole of said property vested in him without
administration and declared to be his sole and separate property, all pursuant to the provisions
of section 1 of An Act to provide for the disposition of community property, approved
March 26, 1937, Stats. of Nev. 1937, chap. 198, p. 417, 1 N.C.L. Supp., sec. 3395.01, p. 432.
The opening language of said section 1 is as follows: Upon the death of the wife the entire
community property shall vest, without administration, in the surviving husband * * *.
The petition concludes with a prayer that after notice and hearing a decree be made and
entered decreeing that the said May Bell Fuller died on the 12th day of December 1943 and
that the title to said community property vested in petitioner on the 12th day of
December 1943; and for such other and further orders as may be meet."
that the said May Bell Fuller died on the 12th day of December 1943 and that the title to said
community property vested in petitioner on the 12th day of December 1943; and for such
other and further orders as may be meet.
The only notice of the hearing was given by posting at the county courthouse as prescribed
by the statute.
On February 18, 1944, William J. Brine, Clesson E. Brine and Robert Brine filed their
verified answer and objections to the surviving husband's said petition. They allege that they
are the sons of the deceased May Bell Fuller by a previous marriage, and that, as such sons,
they are her heirs at law. They deny that the interest of said deceased in the property was a
community interest; deny that any of said property was the community property of deceased
and petitioner; admit that the property was acquired subsequent to the marriage of petitioner
and May Bell Fuller; deny that the property or any part thereof or any interest therein was
acquired by petitioner; deny that petitioner is entitled to have said premises or any part
thereof vested in him without administration, or declared to be his sole or separate property.
They further allege, on information and belief, that the entire consideration for and purchase
price of said premises was paid by and with the separate funds of their mother. They also
allege that all of the property described in the petition, together with the rents, issues, and
profits thereof at all times since June 1, 1929 (the date of purchase from the Corrises), was
the separate property of their mother who died intestate as to the same, and that petitioner is
entitled to one third and no more of said separate estate. The prayer of the answer and
objections is that petitioner take nothing by his proceeding, and that the administration of the
estate of said May Bell Fuller now pending in said district court may proceed in the due and
orderly course. Petitioner did not file a reply to said answer and objections.
There is no suggestion in the record that May Bell Fuller left any heirs at law other than
her three sons and petitioner.
and petitioner. Testimony given by and in behalf of the three sons indicates clearly that they
and petitioner are her sole heirs at law; and petitioner's testimony is to the same effect. All
said heirs, with their respective counsel, were present in court, and participated in the hearing.
At the beginning of said hearing and before any evidence was introduced, objection was
interposed to any further proceedings, upon two grounds: First, that objectors' allegation that
the acquisition of the property was with the use of the separate funds of the deceased Mrs.
Fuller is admitted by petitioner's failure to reply to their answer and objections; second, that
the act of 1939 which purports to give the Court the power and jurisdiction to proceed in
some matters in an informal way to determine the title to real property is not the law. And if
there ever was a constitutional law it was repealed by the Act of 1941, being the General
Probate Act, c. 107, which in the conclusion, paragraph 326, reads, An Act Entitled An Act
to Regulate the Settlement of the Estates of Deceased Persons, approved March 23, 1897,
and all acts amendatory thereof or supplemental thereto, and also all acts or parts of Acts in
conflict with this act, are hereby repealed,' and so on. Neither of the objections was
sustained.
The trial court, after considering the petition and objections and the evidence introduced
by the respective parties in support thereof, found that all the allegations of the petition were
true; that due and regular notice of the hearing of the petition had been given according to law
and the order of the court; that the real estate particularly described in the petition was the
community property of May Bell Fuller and Monroe K. Fuller, and that it was acquired by
them subsequent to their marriage by the work and earnings of the petitioner and paid for
with community funds. By its decree the court established the fact that May Bell Fuller died
in the city of Reno, Washoe County, Nevada, on the 12th day of December 1943. It further
ordered, adjudged and decreed "that by reason of the death of May Bell Fuller, also known
as Maybelle Fuller, her interest in and to the above-described property has been and the
same is hereby declared to be terminated," and "that the aforesaid property, and the
whole thereof be, and the same hereby is set over unto the aforesaid Monroe K.
decreed that by reason of the death of May Bell Fuller, also known as Maybelle Fuller, her
interest in and to the above-described property has been and the same is hereby declared to be
terminated, and that the aforesaid property, and the whole thereof be, and the same hereby
is set over unto the aforesaid Monroe K. Fuller, and the same is hereby declared to be the sole
and separate property of said Monroe K. Fuller. This appeal is from said decree and from an
order denying defendants' motion for a new trial.
Henceforth, in this opinion, petitioner (respondent on this appeal) will be referred to also
as plaintiff and appellants as defendants.
1. Appellants' first assignment of error is that the trial court erred in overruling, in effect,
their objection that plaintiff, by failing to reply, admitted defendants' allegation that the
property was purchased out of the wife's separate funds. This assignment is not well taken,
for even if the provisions of the civil practice act are applicable in a case of this kind, said
allegation is not new matter constituting a defense within the meaning of sec. 8602 N.C.L.,
1929. Ferguson v. Rutherford, 7 Nev. 385; Parks v. W.U.T. Co., 45 Nev. 411, 197 P. 580,
204 P. 884; Thiess v. Rapaport, 57 Nev. 434, 66 P.2d 1000, 69 P.2d 96; Gerbig v. Gerbig, 61
Nev. 387, 128 P.2d 938; Stone v. Webster, Idaho, 144 P.2d 466; H. A. Seinsheimer & Co. v.
Jacobson, 24 N.M. 84, 172 P. 1042; Brown v. Jones, 137 Or. 520, 3 P.2d 768; Stephens v.
Conley, 48 Mont. 352, 138 P. 189, Ann. Cas. 1915d, 958; Shropshire v. Pickwick Stages,
Northern Division, 85 Cal. App. 216, 258 P. 1107; 1 Bancroft's Code Pl., secs. 265, 266, 466;
1 Ten Year Supp., Bancroft's Code Pl., Pr. & Rem., secs. 265, 266, 466; 41 Am. Jur.,
Pleading, secs. 156, 175; 49 C.J., Pleading, secs. 396, 397, 399; Pomeroy's Code
Remedies, Fifth Edition, sec. 549.
2, 3. Appellants contend that the act of 1939, in pursuance of which the present
proceeding was instituted, was repealed by sec. 326 of the 1941 act concerning the estates of
deceased persons, Stats. of Nev.
estates of deceased persons, Stats. of Nev. 1941, chap. 107, pp. 239, 240, 2 N.C.L. Supp., sec.
9882.326. Said section reads in part as follows: An act entitled An Act to Regulate the
Settlement of the Estates of Deceased Persons,' approved March 23, 1897, and all acts
amendatory thereof or supplemental thereto, and also all acts or parts of acts in conflict with
this act, are hereby repealed * * *. In support of their contention appellants refer to secs.
243, 306 and 297 of said deceased persons act, and further point out that distribution is
prohibited by that act until debts of the estate are paid. It is the opinion of the court that chap.
18 of the 1939 Statutes of Nevada, hereinbefore quoted, was not repealed by the deceased
persons act of 1941. In this state, as we have seen, upon the death of the wife, the entire
community property vests, without administration, in the surviving husband. If the property in
this case was in fact community property, it vested, upon the wife's death, in petitioner,
without administration, and never constituted any part of her estate. In re Rowland's Estate,
74 Cal. 523, 16 P. 315, 5 Am. St. Rep. 464; King v. Pauly, 159 Cal. 549, 115 P. 210, Ann.
Cas. 1912c, 1244; In re Bergman's Survivorship, Wyo. 151 P.2d 360; 11 Am. Jur.,
Community Property, secs. 82, 85; Annotation, 82 Am. St. Rep. 365.
4. In assignment No. 2 appellants maintain that the lower court erred in assuming
jurisdiction to determine whether the property was community or separate, and in rendering
judgment that it was community property and that its title, upon the death of Mrs. Fuller,
vested in respondent. So far as shown by the record, these contentions are made for the first
time in appellants' opening brief on this appeal.
If defendants, instead of appearing generally by filing an answer going squarely to the
merits, had appeared specially and solely and only for the purpose of objecting to the
jurisdiction of the trial court upon the ground that it had no jurisdiction under the provisions
of said sec. 9895 to decide whether the property was community or separate, or to decree
that it had vested in the petitioner, they would have been entitled to a reversal if their
objection had not been sustained.
separate, or to decree that it had vested in the petitioner, they would have been entitled to a
reversal if their objection had not been sustained. King v. Pauly, 159 Cal. 547, 115 P. 210,
Ann. Cas. 1912c, 1244; In re Bergman's Survivorship, Wyo., 151 P. 2d 360; 2 Freeman on
Judgments, Fifth Edition, p. 1854, sec. 877, n. 18; 5 Cal. Jur., Community Property, sec.
25, pp. 325, 326; 4 Bancroft's Code Pr. and Rem., p. 3739, sec. 2909, n. 2.
But all the heirs answered and went to trial squarely on the merits. They did not ask for a
jury trial, and they failed to raise the jurisdictional points embraced in assignment No. 2 until
their opening brief on this appeal. The case is thus analogous to a suit to quiet title, and the
district court had jurisdiction to determine whether the property was separate or community,
and to decide who owned it after Mrs. Fuller's death. The decision of that court is, therefore,
binding upon defendants unless the record discloses prejudicial error in some other respect.
King v. Pauly, 159 Cal. 547, 115 P. 210, Ann. Cas. 1912c, 1244; Faxon v. All Persons, etc.,
166 Cal. 707, 137 P.919, L.R.A. 1916b, 1209; 5 Cal. Jur. p. 326, n. 18; 2 Freeman on
Judgments, Fifth Edition, p. 1854, nn. 19, 29; Constitution of Nevada, art. VI, sec. 6 (sec. 114
N.C.L., 1929); sec. 8382, N.C.L. 1929; 1 Bancroft's Code Pr. and Rem., pp. 966, 967, sec.
654, nn. 12, 13, 19, 20, pp. 968, 869, sec. 655, nn. 8, 9, pp. 970-971, sec. 657, nn. 1, 4; 4
Bancroft's Code Pr. and Rem., p. 3739, sec. 2909, n. 3.
Mrs. Fuller and plaintiff were married May 31, 1921. The property in dispute was deeded
to plaintiff by Caesar Corris and his wife June 1, 1921. On the 19th of January 1924, plaintiff
made, executed and delivered a grant, bargain and sale deed of the property to Mrs. Fuller
and to her heirs and assigns forever, the consideration being $10 and other good and
valuable considerations. Near the end of this deed we find the following paragraphs:
Together with the tenements, hereditaments and appurtenances thereunto belonging or
appertaining, and the reversion and reversions, remainder and remainders, rents, issues
and profits thereof.
and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.
To have and to hold the said premises, together with the appurtenances, unto the said
party of the second part, and to her heirs and assigns forever, except a certain joint note and
mortgage in the sum of Two Thousand Four Hundred Dollars ($2,400.00) given by the parties
hereto to Caesar Corris and Kate Corris, his wife, dated the 3d day of June, 1921, which the
said second party assume and agrees to pay, according to the terms and conditions thereof,
and which is made a part of the consideration hereof.
There is no evidence in the record that the Corris indebtedness was paid wholly or in part
out of Mrs. Fuller's separate estate. On the contrary, the evidence shows, and the trial court
found, that the property was acquired by them subsequent to their marriage by the work and
earnings of the petitioner and paid for with community funds. The deed from respondent to
his wife contains no recital that the property was thenceforth to be her separate estate. Mrs.
Fuller and plaintiff resided on the premises from the time of their marriage until her death on
December 12, 1943. The record title to the property remained in her name from said 19th day
of January 1924 until her death. One of appellants' contentions is that plaintiff, by his said
deed to Mrs. Fuller, conveyed to her any and all interest he may theretofore have had in said
property, and his third assignment of error is that the trial court erred in overruling
appellants' objection to questions to respondent tending to impeach the title respondent had
vested in deceased by his deed to her of January 19, 1924, exhibit 7; said objection being that
respondent and grantor in said deed was estopped to impeach same.
5, 6. From the time the property was deeded to plaintiff (June 1, 1921) until January 19,
1924, when he deeded it to Mrs. Fuller, the premises were presumptively community
property. Section 3356 N.C.L. 1929; In re Wilson's Estate, 56 Nev. 353, 53 P. 2d 339; Jones
v. Edwards, 49 Nev. 299
v. Edwards, 49 Nev. 299, 245 P. 292; Milisich v. Hillhouse, 48 Nev. 166, 228 P. 307; 41
C.J.S., Husband and Wife, sec. 489, p. 1031, note 1. By the deed of January 19, 1924, they
became, presumptively, the separate property of Mrs. Fuller. Section 3373, N.C.L. 1929; 41
C.J.S., Husband and Wife, sec. 491, p. 1047, note 12; 11 Am. Jur., Community Property,
sec. 431, p. 202, n. 17. But the latter as well as the former presumption was rebuttable. In re
Wilson's Estate, 64 Cal. App. 2d 123, 148 P. 2d 390, 392; Williamson v. Kinney, 52 Cal.
App. 2d 98, 125 P. 2d 920; Horsman v. Maden, 48 Cal. App. 2d 635, 120 P. 2d 92; In re
Bruggemeyer's Estate, 115 Cal. App. 525, 2 P.2d 534; Taylor v. Hollingsworth, Tex. Civ.
App., 169 S.W. 2d 519; Burruss v. Murphey, Tex. Civ. App., 5 S.W. 2d 612; Buse v. Buse,
Tex. Civ. App., 287 S.W. 141; 41 C.J.S., Husband and Wife, sec. 491, p. 1047, note 16; 11
Am. Jur., Community Property, sec. 44, p. 203, n. 8; 3 Cal. Jur. Supp. 568, sec. 71, nn. 14,
15; 5 Cal. Jur., 321, n. 19; Principles of Community Property, de Funiak, vol. 1, sec. 147, p.
411.
7-9. In this state a husband may convey all his interest in community property to his wife
either for a valuable consideration, or by way of gift. But the evidence necessary to show a
transmutation of community property into separate property must be of a clear and
convincing character. Stockgrowers' & Ranchers' Bank v. Milisich, 52 Nev. 178, 283 P. 913,
914. In the case at bar the trial court found that the property was paid for with community
funds, and that it was community property at the time of Mrs. Fuller's death. There is ample
evidence in the record to support these findings, and we therefore conclude that any
presumption that the premises were separate property was, in the judgment of said Court,
satisfactorily overcome by the evidence adduced by and in behalf of plaintiff. Plaintiff was
not estopped, because of his said deed, from offering evidence to show that the premises were
in fact community property at the time of Mrs. Fuller's death.
10. Appellants' fourth assignment of error is that the trial court erred in overruling their
objections to questions to plaintiff relative to who negotiated for the property.
the trial court erred in overruling their objections to questions to plaintiff relative to who
negotiated for the property. The contention here is that the testimony admitted in response to
said questions constituted privileged matter between husband and wife and forbidden by
N.C.L. sec. 8971. Appellants specify eleven rulings claimed by them to be in violation of
that part of said section which reads: * * * nor can either (husband or wife), during the
marriage or afterwards, be, without the consent of the other, examined as to any
communication made by one to the other during marriage * * *. The first of said rulings was
in favor of appellants. With regard to the other ten, the court has carefully examined each
question, objection, ruling and answer, and is clearly of opinion that in no instance does it
appear that the husband was examined as to any communication made to him by Mrs. Fuller
during marriage. The mere fact that transactions testified to by plaintiff took place during the
marriage is insufficient to show that his knowledge concerning them was derived, in whole or
in part, from communications made to him by his wife.
11. Appellants further contend, in assignment of error No. V, that the trial court erred in
overruling their objections as to who negotiated for the property, said objections being based
on the following provisions of sec. 8966 N.C.L. 1929: No person shall be allowed to testify:
1. When the other party to the transaction is dead. 2. When the opposite party to the action, or
the person for whose immediate benefit the action or proceeding is prosecuted or defended, is
the representative of a deceased person, when the facts to be proven transpired before the
death of such deceased person. Here again, appellants specify eleven rulings to which they
take exception. Of these at least seven are identical with those excepted to in assignment No.
IV. One of the rulings was favorable to appellants and will not, therefore, be discussed here.
With respect to the other ten, we will now summarize the testimony given by plaintiff over
defendants' objections based on sec.
plaintiff over defendants' objections based on sec. 8966 N.C.L. 1929.
(1) I negotiated for the property. (2) At the time the property was purchased, I made a
down payment of $500 in cash and a Reo automobile. The $500 was my money. I worked and
saved it. (3) The value of the Reo automobile was $600. (4) The Corrises were paid in 1924.
It seems to me it was in April or August. (5) To pay the Corrises, we borrowed the money
from the Farmers & Merchants National Bank and gave the bank a mortgage. (6) The money
that paid off the Farmers & Merchants National Bank was obtained from the Home Owners
Loan Corporation. (7) All the payments on the Farmers & Merchants National Bank
indebtedness came out of my wages. (8) The payments of principal and interest to satisfy the
Schoer mortgage came out of my wages. (9) The money that paid off the Home Owners Loan
Corporation mortgage came out of my wages. (10) The money to pay taxes on the property
since it was originally purchased on June 1, 1921, came out of my wages.
Appellants rely on both 1 and 2 of said sec. 8966. In the trial court, however, their
objections under that section were based on 1 only. In fact, counsel for both appellants and
respondent, in response to a question from the trial judge, gave it as their opinion that in the
expression representative of a deceased person, as used in 2, the word representative
means legal representative, executor, or administrator. We do not decide whether that view is
correct; if it were, appellants' objections based on 2 of sec. 8966 would be without merit.
What this court does hold is that defendants, having, in the trial court, based their objections
under sec. 8966 on 1 only, cannot for the first time, on appeal, rely also on 2 of that
section.
12. The question we have to consider, therefore, in connection with said assignment of
error No. 5, is whether appellants' objections in the trial court, based on 1 of sec. 8966,
were well taken. It is settled in this state that the disqualifying provisions of sec.
state that the disqualifying provisions of sec. 8966 should be construed so as not to exclude
testimony unless clearly inhibited by their terms.
13. It is clear from the statute itself that plaintiff was not disqualified to testify unless (1)
the testimony related to a transaction or transactions between him and decedent, and (2)
decedent was the other party to such transaction or transactions. The court is of opinion that
none of the testimony complained of comes within the terms of said provision. Maitia v.
Allied L. & L.S. Co., 49 Nev. 451, 248 P. 893; Taylor v. Jones, Tex. Civ. App., 135 S.W. 2d
767, 768; Wilhelm v. Pfinning, 191 Okl. 321, 129 P.2d 580; 28 R.C.L. 497, n. 7; 70 C.J. 306,
n. 92, 514, n. 24.
14. Under assignment of error No. VIII appellants contend that the trial court erred in
overruling their objection to questions by plaintiff designed to show that no inventory of
separate property had been filed by decedent in the office of the county recorder as required
by sec. 3357, N.C.L., 1929. The effect of failure to file such inventory is set out in sec. 3359.
By failing to file such inventory the wife does not forfeit her separate property, and may show
that certain property is her separate estate by other evidence, notwithstanding such failure.
However, we think that evidence of failure to file an inventory of her separate estate was
properly admissible as one circumstance to be considered with all the other evidence,
particularly with reference to the question of burden of proof. 41 C.J.S. Husband and Wife,
sec. 232, p. 723, notes 40-44, sec. 469, p. 1000, note 42, sec. 493, p. 1055, notes 28, 29.
In view of what has been said regarding assignments of error Nos. III, IV, V and VIII, it is
deemed unnecessary to discuss assignments of error VI and VII, and IX to XIV, both
inclusive.
The judgment and order appealed from are affirmed.
____________
63 Nev. 40, 40 (1945) State v. Lindsay
THE STATE OF NEVADA, Respondent, v. EDMUND GEORGE LINDSAY, Alias
GEORGE EDWARD LINDSAY, Alias TOMMY MARINO, Appellant.
No. 3433
August 6, 1945. 161 P.2d 351.
1. Criminal Law.
Generally, evidence tending to connect accused with commission of a crime independent of and
unconnected with one with which he is on trial is incompetent.
2. Criminal Law.
Where witness denied on direct examination that he knew defendant or had at any time seen
defendant prior to witness' appearance in court, cross-examination as to whether witness had previously
stated that he and defendant did time together was incompetent but did not establish such intentional
misconduct as would justify a reversal of conviction. Comp. Laws, sec. 11266.
3. Criminal Law.
Before a conviction can be reversed it must affirmatively appear that there has been a miscarriage of
justice or that defendant has been actually prejudiced. Comp. Laws, sec. 11266.
4. Robbery.
Evidence authorized conviction of robbery.
5. Criminal Law.
Where competent evidence and defendant's confession clearly established defendant's guilt, district
attorney's error in cross-examining a defense witness as to whether witness had previously stated that he
and defendant did time together did not prejudice defendant or result in a miscarriage of justice. Comp.
Laws, sec. 11266.
6. Criminal Law.
Where defendant's confession, which was admitted in evidence without objection, contained a
reference to a person whom defendant had known at Walla Walla penitentiary, defendant was not
prejudiced by question asked by district attorney on cross-examination of a defense witness as to whether
witness had previously stated that he and defendant had done time together in such penitentiary. Comp.
Laws, sec. 11266.
7. Criminal Law.
Admission of improper evidence was harmless in view of admission without objection of substantially
similar evidence. Comp. Laws, sec. 11266.
Edmund George Lindsay, alias George Edward Lindsay, alias Tommy Marino, was
convicted of robbery, and he appeals. Affirmed.
Sidney W. Robinson, of Reno, for Appellant.
Alan Bible, Attorney General, George P. Annand and Homer Mooney, Deputy Attorneys
General, and Melvin E. Jepson, District Attorney, and Harold O. Taber, Deputy District
Attorney, both of Reno, for Respondent.
OPINION
1. Appellant was convicted of the crime of robbery, and in his appeal to this court seeks a
reversal of the judgment of conviction solely upon the ground of alleged misconduct of the
district attorney. The misconduct charged consists in the asking by the district attorney, of one
McDonald, a witness for appellant, during cross-examination, of the following question:
Isn't it a fact that you told Mr. Gily that you and Lindsay did time together in Walla Walla,
Washington? It is appellant's position that in asking the said question the district attorney
violated the rule of law that evidence tending to connect accused with the commission of a
crime independent of and unconnected with the one with which he is on trial is incompetent.
Such is the general rule. 22 C.J.S., Criminal Law, sec. 682, p. 1084; 20 Am. Jur. p. 287, sec.
309 et seq. There are exceptions to this general rule, but the question here complained of does
not come within any of such exceptions. The exceptions are clearly set out in the cases of
State v. McFarlin, 41 Nev. 486, 172 P. 371, and State v. Hall, 54 Nev. 213, at page 237, 13 P.
2d 624.
2. The asking of the question complained of came after the witness McDonald denied on
direct examination that he knew appellant or had at any time seen him prior to his {the
witness') appearance in court.
after the witness McDonald denied on direct examination that he knew appellant or had at
any time seen him prior to his (the witness') appearance in court. The district attorney argues,
in justification of the asking of said question, that he had a right to show prior inconsistent
statements. The witness gave a rather indefinite answer to the question. The district attorney
moved to strike the answer; the motion was denied; appellant objected to the question on the
ground that it tended to show that the appellant was guilty of an independent crime; the
objection was overruled, and the witness answered: I don't remember ever making such a
statement.
We think the asking of this question was erroneous and the objection thereto should have
been sustained, but we take the same view as did the court in the case of People v.
Doetschman, Cal. App., 159 P. 2d 418, at page 423, wherein it is said: While the district
attorney erred in asking the questions, no such intentional misconduct appears as would
justify a reversal on that ground. In People v. Doetschman, supra, it will be noted that a
number of questions relating to other crimes were asked by the district attorney.
3. We reach the conclusion that the error complained of would not justify a reversal
particularly in view of our statute, sec. 11266 N.C.L., and the construction placed thereon by
this court to the effect that in Nevada before a judgment be reversed it must affirmatively
appear that there has been a miscarriage of justice or that the defendant has been actually
prejudiced. State v. Ramage, 51 Nev. 82, at page 87, 269 P. 489; State v. Williams, 47 Nev.
279, at page 285, 220 P. 555; State v. Willberg, 45 Nev. 183, at page 188, 200 P. 475.
4, 5. The evidence in this case clearly established the guilt of the appellant. We not only
have his confession to participation in the crime, but also the testimony of a young woman
who admitted her participation therein and positively identified the appellant as the third
member of the trio who staged the hold-up. The confession was made to one John H.
was made to one John H. Polkinhorn, special agent of the federal bureau of investigation; it
was received in evidence without objection and recognized to have been freely and
voluntarily made. We quote the testimony given by the witness Polkinhorn, because we think
it establishes, beyond question, that no miscarriage of justice occurred in this case:
A. Mr. Lindsay told me that he and Tommy Ryan went to the Dog House early on the
morning of April 22d and held the place up. He stated that he and Ryan talked it over on the
evening of the 21st of April 1944 and that they decided then that they were going to hold the
Dog House up. He stated they went there and Ryan had a Lueger, a German Lueger, they
went inside of the Dog House, they held up a Chinaman there, they went to the safe, the front
door of which was open, and they knocked the door, the inner door off with a crowbar. I
asked him where the crowbar came from, but Lindsay said he didn't know where the crowbar
came from, but he and Tommy Ryan, that is McDonald, pried the door off.
He stated that they got approximately five thousand and forty dollars out of the safe. He
said the papers said they got about twenty thousand out of the safe, but that was not correct.
He said they got $3,040.00 silver, and $2,000.00 in currency. That then they left, and they
hung around Reno for approximately one week, at which time Ryan bought a car and truck at
a garage, or a service station next to a Columbo Motel in this town; they then went up to
Boise, Idaho, and Ryan got arrested, got drunk and was arrested by the police there, and
Lindsay then hitch-hiked from there on into Oregon and into Washington.
He stated that he then met a man by the name of Julian Ferguson whom he had known at
Walla Walla penitentiary, and told him, Ferguson, that his name was Richard Strague.
Ferguson said he needed a chef at the Interstate Restaurant that he, Ferguson, was running in
Willows, and he decided that he would go down and work as a chef.
work as a chef. His wife, Mary Lindsay, and himself, then came down in their automobile,
which is a 1936 Plymouth, with Washington tags, and Ferguson and his woman, or wife,
came down at the same time.
He said they left Tacoma, Washington, where he had met this Ferguson, about June the
17th and they got to Willows about June 21, 1944, and then he started working as a chef in
the Interstate Restaurant for Ferguson.
Q. I show you State's Exhibit A for identification, and ask you to examine it, please: Have
you ever seen that gun before? A. Yes, sir.
Q. Where did you get it? A. It was turned over to me by Agent Robert Gocke of the
Federal Bureau of Investigation.
Q. When. A. On August the 13th, 1944, Sunday.
Q. Was that the day you talked with Lindsay?
A. I talked to him the following day, Monday.
Q. In your conversation with Lindsay did he say anything about this gun? A. Yes, sir.
Q. What did he say? A. He said that this was a gun that Tommy Ryan took out of the Dog
House safe and handed to him in the Dog House at Reno, Nevada, on the night of the
robberyon the morning of the robbery.
I asked him why he filed the numbers off the gun, and he said that he did not file them off
the gun, that that is the way it was given to him. He said there were several other guns in the
safe when Ryan took this out.
I might add, that during our conversation in the anteroom at the Glen County jail, I started
to take notes when I was talking to Mr. Lindsay, and Lindsay said, I won't tell you anything
if you take notes.' So I stopped. I showed him the gun at that time and the minute I came out
of the anteroom with Lindsay I put down the figures that he gave me, and I also marked this
gun and the magazine and the five bullets.
My understanding was that the bullets were in the magazine when the gun was found in
Room 31 of the Palace Hotel by agents of the Federal Bureau of Investigation, but there
were no bullets in the chamber.
Palace Hotel by agents of the Federal Bureau of Investigation, but there were no bullets in the
chamber.
Q. Well, can you identify the markings on it? A. Yes, sir, my initial P' scratched right up
here, (indicating). I also marked the magazine on the back with my initial P.'
Q. So you are positive that that is the gun that you and Lindsay talked about, is that right?
A. That is the gun that he said came from the Dog House, yes, sir.
Q. He made that statement? A. Yes, sir.
Q. That Ryan took it out of the safe and gave it to him?
A. That is correct, sir.
Mr. Taber: We offer the gun in evidence.
The Witness: He stated when they went in he had no gun in his possession, when they
went into the Dog House that Ryan had the gun, a gun, a German Lueger.
There is in the record the testimony of Al Hoffman, a coowner in the Dog House, the place
that was robbed, to the effect that he kept a 32 Colt's automatic in his safe in said building,
that he examined the safe after the robbery, and that the gun was missing.
In the case of People v. Epstein, 21 Cal. App. 2d 488, 69 P. 2d 454, 455, a robbery case,
the court, in considering an alleged error relative to the improper admission of evidence,
stated:
The law is settled that a judgment will not be set aside in any case on the ground of (a)
misdirection of the jury or (b) improper admission or rejection of evidence, unless there has
been a miscarriage of justice. Article 6, sec. 4 1/2, Constitution of the State of California.
Therefore, conceding without deciding that the trial court's rulings were erroneous, defendant
may not urge them as error in this court, in view of his confession that he participated in the
crimes with which he was charged. Thus there was no prejudice or miscarriage of justice
resulting to him.
The holding in the case of People v. Epstein, supra, was followed in the case of People v.
Hamet, a recent case, reported in Cal. App., 159 P.
case, reported in Cal. App., 159 P. 2d 702, at page 703. The court, in People v. Hamet, used
substantially the same language as that used in the case of People v. Epstein, to-wit:
The law is settled that a judgment will not be set aside in any case on the ground of
improper admission or rejection of evidence, unless there has been a miscarriage of justice.
Art. VI, sec. 4 1/2, Constitution of Calif. Therefore, conceding without deciding that the trial
court's rulings were erroneous, defendant may not urge them as error in this court, in view of
his admission that he had been making book at this place' for about two months. Such
statement constituted a confession that he had participated in the crime with which he was
charged. Thus no prejudice or miscarriage of justice resulted to him from the alleged
erroneous rulings.
So in the instant case, in view of the confession of the appellant that he participated in the
crime with which he is charged and which said confession is corroborated by the evidence of
one of the participants, Annabelle Allen Peterson, no prejudice or miscarriage of justice
resulted because of the asking of the question complained of.
6. There is a further reason why the error of the district attorney in asking the said
question was harmless. It will be noted that in the confession by appellant to the witness
Polkinhorn appellant stated that he then met a man by the name of Julian Ferguson, whom
he had known at Walla Walla penitentiary, and told him, Ferguson, that his name was
Richard Strague. This statement contains a very similar intimation to that contained in the
question asked by the district attorney and had as great a tendency to connect the defendant
with Walla Walla penitentiary and the same inference as to the commission of an independent
crime. Said testimony was received without objection and no motion to strike was made. It
stands in the record uncontradicted. Counsel for appellant in this court did not represent
appellant in the trial court.
7. The rule with respect to admission of improper evidence being harmless where the
same or similar evidence has been admitted without objection is stated in 5 C.J.S., Appeal
and Error, sec. 1724, note 8, p. 974, as follows:
Similarly, error in the admission of evidence may be harmless where the same or similar
evidence has been admitted without objection.
See, also: 5 C.J.S., Appeal and Error, sec. 1730, note 99, p. 1004; McClaskey Cash
Register Co. v. Krause, Tex. Civ. App., 31 S.W. 2d 858; Export Ins. Co. v. Axe et al., Tex.
Civ. App., 36 S.W. 2d 572; Baker v. Farmers' Welfare Union, Tex. Civ. App., 3 S.W. 2d 155,
at page 157; Watson Co. v. Bleeker et ux., Tex. Civ. App., 10 S.W. 2d 394, at page 395;
Burke v. Power's Estate, 100 Vt. 342, 137 A. 202.
No prejudicial error appearing, the judgment is affirmed.
____________
63 Nev. 47, 47 (1945) Slack v. Schwartz
THELMA SLACK, Appellant, v. THELMA LEE SCHWARTZ, by J. FRED
SCHWARTZ, Her Guardian ad Litem, Respondent.
No. 3418
August 13, 1945. 161 P.2d 345.
1. Abatement and RevivalDismissal and Nonsuit.
Where the court ordered that the parties be given time to submit authorities on questions raised by
defendant's motion to strike complaint and to dismiss, and before authorities were submitted the action
was dismissed upon plaintiff's request, the dismissal was effectual as made before final submission of
case, even if not made before trial, hence action was not pending, so as to bar subsequent action. Comp.
Laws, secs. 8754-8757, 8793.
Under statute providing that neither husband nor wife is liable for the debts or liabilities of the other
incurred before marriage, husband was not liable for the antenuptial torts of his wife. Comp. Laws, sec.
3371.01.
Where defendant was not married when action was brought against her for personal injuries sustained
in automobile collision, and husband was not liable for her antenuptial torts, the
statutory requirement that husband be joined in action against wife, even if
applicable, was not jurisdictional, and husband was not an indispensable party.
collision, and husband was not liable for her antenuptial torts, the statutory requirement that husband be
joined in action against wife, even if applicable, was not jurisdictional, and husband was not an
indispensable party. Comp. Laws, secs. 3371.01, 8546.
In action for personal injuries sustained in automobile collision, where defendant was not married at
time action was brought, and she made no application to have her husband joined with her as a party
defendant until the opening day of the trial, and husband had made no application to be joined and was
not liable for wife's torts, court did not err in denying defendant's motion for an order joining husband as
a party defendant. Comp. Laws, secs. 3371.01, 8546, 8754-8757, 8793.
5. Damages.
$6,250 for facial and bodily injuries sustained by a girl 14 years of age was not excessive. Comp.
Laws, sec. 8554.
6. Appeal and ErrorDamages.
The amount to be awarded as damages for personal injuries was a matter resting within the sound
discretion of trial court, which would not be disturbed when not so excessive as to indicate prejudice or
passion on the part of the trial court, or so outrageous or so clearly beyond reason as to shock the judicial
conscience. Comp. Laws, sec. 8554.
Appeal from Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action by Thelma Lee Schwartz, by J. Fred Schwartz, her guardian ad litem, against
Thelma Slack for personal injuries sustained by minor plaintiff in automobile collision. From
a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.
Morse & Graves, of Las Vegas, for Appellant.
Thurston & McNamee, of Las Vegas, for Respondent.
OPINION
At about 5:40 p. m. on March 4, 1943 a Buick automobile being driven by appellant
(defendant) and a Chevrolet automobile being driven by a Mr. Waddell collided at the
intersection of Carson and Seventh streets in the city of Las Vegas.
collided at the intersection of Carson and Seventh streets in the city of Las Vegas.
Immediately prior to the collision the Buick was proceeding easterly on Carson street and the
Chevrolet southerly on Seventh street. The Buick was traveling at a higher rate of speed than
the Chevrolet. The Buick was a long car, weighing 4,565 pounds; the Chevrolet was shorter,
and weighed 2,725 pounds. As the cars collided appellant lost control of the Buick, which
swerved and skidded across Seventh street, striking and injuring respondent (plaintiff), a
pedestrian.
On May 22, 1943, two suits growing out of said accident were commenced in the Eighth
judicial district court, Clark County. In one of these, No. 17206, the parties were Thelma Lee
Schwartz, by J. Fred Schwartz, her guardian ad litem, plaintiff, and Lillian Cox and Thelma
Slack, defendants. Lillian Cox, the owner of the Buick, was riding with Thelma Slack when
the accident occurred. Said action (17206) was brought to recover damages for injuries
sustained by plaintiff, a minor. In the other of said actions, No. 17208, the parties were J.
Fred Schwartz and Thelma G. Schwartz, plaintiffs, and Lillian Cox and Thelma Slack,
defendants. The plaintiffs in this action were the parents of said Thelma Lee Schwartz, and
the action was brought to recover for the loss of her services.
Demurrers to both said complaints were sustained. Amended complaints were filed June
29, 1943. On July 6, 1943, motions were made in both cases to strike the amended complaints
from the files, to strike portions of said amended complaints, and to dismiss said actions.
These motions were argued on July 16, 1943, and at the conclusion of the oral arguments the
court ordered that plaintiffs have ten days in which to submit their authorities, defendants ten
days in which to submit their answering authorities, and plaintiffs ten days in which to submit
their replying authorities. No authorities were submitted at any time pursuant to said order.
On July 24, 1943, action No. 17826 was commenced in said district court, the parties
therein being Thelma Lee Schwartz, by J.
in said district court, the parties therein being Thelma Lee Schwartz, by J. Fred Schwartz, her
guardian ad litem, plaintiff, and Thelma Slack, defendant. This action, like No. 17206, was
brought to recover damages suffered by the plaintiff as the result of said accident.
On July 27, 1943, the clerk, upon request of plaintiff, entered judgment of dismissal in
said action No. 17206. The record does not show any further proceedings in case 17208 than
those hereinbefore mentioned.
On August 4, 1943, a demurrer to the complaint was filed in said action No. 17826. This
demurrer was argued September 17, 1943, and the case thereupon continued, upon
defendant's request, to September 24, 1943. The demurrer was overruled on October 1, and
defendant filed her answer October 21. Plaintiff's reply was filed December 2.
On the opening day of the trial, February 23, 1944, and before the taking of any testimony,
defendant moved for judgment on the pleadings, and objected, upon three grounds, to the
taking of any testimony. Said motion was denied, and said objection overruled. The trial
proceeded to its conclusion, and the court rendered and entered judgment awarding plaintiff
damages in the sum of $6,250, with costs. The present appeal is from that judgment, and from
a later order denying defendant's motion for a new trial.
Appellant contends that said district court action No. 17826 is barred because No. 17206 is
still pending and undetermined. She maintains that plaintiff's purported dismissal of case No.
17206 was ineffectual and void because not made before trial.
Section 8793 N.C.L., as amended, reads in part as follows: An action may be dismissed,
or a judgment of nonsuit entered, in the following cases: 1. By the plaintiff himself at any
time before trial. * * * 4. By the court when upon trial and before the final submission of the
case the plaintiff abandons it * * *. Stats. of Nev. 1939, chap. 36, p. 33, 2 N.C.L. Supp.,
1931-1941, p. 1199.
Section 8754 N.C.L. 1929, as amended, reads in part: An issue of law shall be tried by
the court, unless it is referred upon consent * * *. Stats. of Nev. 1935, chap. 91, p. 209, 2
N.C.L. Supp. 1931-1941, p. 1196.
Appellant further directs our attention to secs. 8755, 8756, and 8757, N.C.L. 1929, and to
district court rules V, VI, VII, and XI. She takes the position that the hearing of her motions,
on July 16, 1943, to strike and to dismiss, constituted a trial, and that the trial of the case
(No. 17206) was finally submitted on that date, notwithstanding the thirty days allowed
counsel to submit authorities. Therefore, argues appellant, the dismissal on July 27 was not a
dismissal before trial, and so it was error for the trial court to overrule a special demurrer
which had been interposed by defendant to plaintiff's complaint, to deny her motion for
judgment on the pleadings, and to overrule her objections to the introduction of certain
evidencesaid demurrer, motion and objections having all been based upon the theory of
pendency of another action in the same cause.
1. Appellant's contention that action No. 17826 is barred because the purported dismissal
of No. 17206 was void has been argued in extenso by respective counsel. After carefully
considering our statutes and rules of court and the numerous authorities cited by counsel, the
court is convinced that appellant's contention is not correct. Even if we were to adopt
appellant's view that her motions to strike the amended complaint and to dismiss the action
constituted a trial within the meaning of said amended sec. 8793, we would still be of the
opinion, because of the court order of July 16, 1943, allowing time for the submission of
authorities, that said trial was not under final submission at the time action No. 17206 was
dismissed. Campbell v. Nelson, 102 Utah 78, 125 P.2d 413; Reynolds v. Vidor, 45 Cal. App.
2d 685, 114 P.2d 617; Molen v. Denning & Clark Livestock Co., 56 Idaho 57, 50 P.2d 9;
Annotation, 89 A.L.R. 13, 53-54; Thompson v. Schalk, 228 Iowa 705, 292 N.W. 851; Crane
v. Leclere, 206 Iowa 1270, 221 N.W. 925; Id.
Id. 204 Iowa 1037, 216 N.W. 622; Plattsmouth Loan & Bldg. Ass'n. v. Sedlak, 128 Neb. 509,
259 N.W. 367.
Defendant's next contention on this appeal is that the trial court erred in declining, at her
request, to join her husband with her as a party defendant. This contention is based upon
amended sec. 8546, N.C.L. 1929. Stats. of Nev. 1937, chap. 15, p. 29, 2 N.C.L. Supp.
1931-1941, p. 1177. The section reads as follows: When a married woman is a party, her
husband must be joined with her, except: 1. When the action concerns her separate property,
or her right or claim to the homestead property, she may sue alone. 2. When the action is
between herself and her husband, she may sue or be sued alone. 3. When the husband resides
out of, has departed from, or after due diligence cannot be found within the state, or she is
living separate and apart from her husband by reason of his desertion of her, or by agreement,
in writing, entered into between them, she may sue or be sued alone.
Defendant was not married at the time of the accident, nor when the present action was
commenced. Her marriage took place on August 31, 1943. This was twenty-seven days after
she demurred to plaintiff's complaint, seventeen days before the demurrer was argued, and a
month before it was overruled. A further three weeks expired before her answer was filed. It
was not until the opening day of the trial, February 23, 1944, that the court or plaintiff was
informed of defendant's marriage. On that day her counsel informed the court and counsel for
plaintiff that he had learned for the first time on the preceding Sunday (February 20) that
defendant had married since the commencement of the action. On the trial defendant admitted
that she and her husband were not then living together and had been temporarily separated for
a period of approximately two to three months. On said opening day she moved the court for
an order joining her husband as a party defendant with her. The motion was denied.
2. Section 17 1/2, added in 1933 to the 1873 act defining the rights of husband and wife,
provides that "Neither husband nor wife is liable for the debts or liabilities of the other
incurred before marriage."
the rights of husband and wife, provides that Neither husband nor wife is liable for the debts
or liabilities of the other incurred before marriage. Stats. of Nev. 1933, chap. 96, p. 118, 1
N.C.L. Supp. 1931-1941, p. 431, sec. 3371.01. Under this section we hold that in Nevada the
husband is not liable for the antenuptial torts of his wife. McElfresh v. Kirkendall, 36 Iowa
224, 226, 227; 1 de Funiak, Principles of Community Property, sec. 158, p. 443, n. 24.
In McElfresh v. Kirkendall, supra, the statute read, Neither husband nor wife is liable for
the debts or liabilities of the other incurred before marriage * * *. Acts Iowa 13th Gen.
Assem., c. 126. In the course of its opinion the supreme court of Iowa used this language:
The words debt' and liability' are not synonymous, and they are not commonly so
understood. As applied to the pecuniary relations of parties, liability is a term of broader
significance than debt. The legal acceptation of debt is a sum of money due by certain and
express agreement. Black. Com. Book 3, 154. Liability is responsibility; the state of one who
is bound in law and justice, to do something which may be enforced by action. This liability
may arise from contracts either express or implied, or in consequence of torts committed.
Bouvier's Law Dict. * * * If the distinction between a debt and a liability is maintained, the
construction becomes easy. The husband is discharged from liability for the debts or
liabilities incurred by the wife before marriage. * * *.
The word liabilities is not limited in its meaning to contractual liabilities, but applies
also to liabilities for torts. Miller & Lux v. Kern County Land Co., 154 Cal. 586, 66 P. 856,
857; 25 Words and Phrases, Perm. Ed., pp. 58, 59; 2 Bouvier's Law Dictionary, Rawle's Third
Division, p. 1950. In Miller & Lux v. Kern County Land Co., supra, the supreme court of
California said: The word liability' has always been held to apply to responsibility for torts
as well as for breach of contracts.
Van Maren v. Johnson, 15 Cal. 308, so strongly relied on by appellant, is not in point
here because in this state, since 1933, the husband is not liable, to the extent of the
community property, or at all, for the antenuptial torts of the wife.
on by appellant, is not in point here because in this state, since 1933, the husband is not
liable, to the extent of the community property, or at all, for the antenuptial torts of the wife.
3. It does not necessarily result from what has been said that a husband need not be joined
as a party defendant with his wife even where her alleged tort was committed before their
marriage. Hageman v. Vanderdoes, 15 Ariz. 312, 138 P. 1053, L.R.A. 1915a, 491, Ann. Cas.
1915d, 1197. Amended sec. 8546, N.C.L. 1929, as we have seen, expressly provides that,
with certain exceptions, when a married woman is a party, her husband must be joined with
her. This requirement, however, even if applicable in a case like the present where the wife
was not married when the action was commenced, is not jurisdictional, because here the
husband is not liable for the alleged antenuptial tort of his wife; and for the same reason the
husband was not an indispensable party. Stratton v. Beaver Farmers' Canal & Ditch Co., 87
Colo. 349, 287 P. 861; Id., 82 Colo. 118, 257 P. 1077; Cameron v. International Alliance,
etc., 117 N.J. Eq. 577, 183 A. 157.
4. If the husband were an indispensable party in the present case, failure to make him a
party defendant with his wife would affect the jurisdiction of the court, and the point could be
raised on appeal even if not urged in the court below. Perkins v. Benguet Consol. Mining Co.,
55 Cal. App. 2d 720, 132 P.2d 70, 95. But as the husband is not liable in this state for the
antenuptial torts of the wife, we think the trial court in the instant case was justified in
considering whether the application for joinder of the husband was timely and properly made.
The husband himself, it may be observed, did not ask the court to make him a party.
Defendant, as we have seen, was married August 31, 1943. Her answer was not filed until
October 21, 1943. She made no application of any kind to have her husband joined with her
as party defendant until February 23, 1944, the opening day of the trial. We think there was
no error, certainly no prejudicial error, in denying defendant's motion for an order joining
her husband as a party defendant.
no prejudicial error, in denying defendant's motion for an order joining her husband as a party
defendant.
5. There remains for consideration appellant's final contention that the damages awarded
plaintiff by the trial court are excessive. She points out that the only medical testimony in the
case was that of a dentist whose testimony, it is claimed, shows that the only physical injury
sustained by plaintiff was the loss of five upper teeth. At the time of the trial, says appellant,
plaintiff was wearing a removable bridge, which at the age of eighteen would be replaced by a
fixed bridge.
Appellant further directs attention to the fact that plaintiff did not call the medical doctor
who treated her, and that the following stipulation was entered into by respective counsel: It
is stipulated between counsel for the plaintiff and defendant, if your Honor please, that if Dr.
Stanley L. Hardy, a duly licensed qualified doctor practicing in the State of Nevada, was
called as a witness and was present at the present time, that he would testify that judging from
his examination made on Friday, February 25, 1944, the party for whom the action is
prosecuted, Thelma Schwartz, is suffering from no physical impairment requiring treatment
at the present time, as a result of the injuries sustained by her in the accident that occurred
March 4, 1943.
Appellant invokes the alleged presumption that plaintiff by failing to call Dr. Hardy
acknowledged that his evidence would have been used against her.
Appellant further points out that under the provisions of amended sec. 8554 N.C.L. 1929,
2 N.C.L. Supp. 1931-1941, p. 1178, Stats. of Nev. 1939, chap. 24, p. 17, the damages to be
given should be such as, under all the circumstances of the case, may be just. A summary of
the testimony relating to respondent's injuries will aid in determining whether the amount of
the trial court's judgment, $6,250, was excessive.
William L. Himmelreich testified that immediately after the accident plaintiff was lying on
the ground and bleeding in the mouth.
Samuel Arthur Waddell, who was driving the Chevrolet, testified that plaintiff was struck
by the quarter-glass of the Buick, back of its right rear door; that the whole side of the car hit
her, but the glass seemed to strike her directly in the face; that she was knocked past the
telegraph pole that was between the sidewalk and the curb; that she was knocked rolling, just
like you would kick a footballrolling sideways; that her clothes were about half torn off
her, stockings were torn, knees skinned, she was bleeding from the mouth and nose, and her
face was pretty badly cut.
J. Fred Schwartz, father and guardian ad litem of the plaintiff, testified that by actual
measurement the Buick knocked plaintiff 42 feet; that her physical condition was perfect
before the accident; that she was fourteen years old when the accident happened; that when an
ambulance arrived, she was picked up, put on a stretcher, lifted into the ambulance and taken
to a hospital; that she had a gash in the back of her head, a large bump on the left side of her
forehead, face skinned and cut, nose pushed slightly to left, front teeth knocked out, mouth
and nose bleeding, chin and upper lip cut, knee bruised up, legs black and blue, left ankle
bruised and right hand scratched; that four teeth were missing, and a fifth that was broken off
half way had to be removed; that she remained in the hospital several days; that when she was
taken home from the hospital her shoulder was in a cast, there were scabs and scars all over
her face and forehead and on the back of her head, she complained of her finger hurting her,
her lips were swollen, and gums and mouth sore; that she remained in bed at home about
three weeks; that five false teeth were put in by the dentist; that immediately after the
accident plaintiff's dress was torn, her slip was torn, her hose were torn beyond repair, and
there was blood all over her clothes; that at the time of the trial, besides the five false teeth
replacing one eye tooth and four front teeth next to it, her nose was still crooked, bent over to
the left, she had a scar on her lip and on her chin, was very nervous and irritable, had a
tendency to cry at most anything, cried out in her sleep and walked in her sleep; that the
right rear quarter-glass of the Buick was completely shattered, and there was quite a
large dent in the right rear fender.
her chin, was very nervous and irritable, had a tendency to cry at most anything, cried out in
her sleep and walked in her sleep; that the right rear quarter-glass of the Buick was
completely shattered, and there was quite a large dent in the right rear fender.
Plaintiff testified that she was hit in the face and knocked out, and the next thing she
remembers was being put on the X-ray table in the hospital; that besides the injuries
mentioned by her father she had a broken collar bone, two ribs cracked, a bone in the first
part of her first finger cracked, and nose broken; that she suffered various pains, both before
and after leaving the hospital (giving details); that while she was in bed at home her mouth
was so sore that it was very difficult for her to eat; that the dentist had to perform surgery in
her mouth, some of it very painful; that the five teeth lost were from her second set of teeth;
that up to and at the time of the trial her left knee kept acting like it was going to slip out
sometime, and her left ankle turned over quite easily, besides hurting her; that she had
headaches, but did not have them before she was hurt.
Thelma Schwartz, mother of plaintiff, testified that when she first saw plaintiff after the
accident, she was lying in the street, unconscious; that she talked to her, but there was no
response; that her daughter's eyes were wide open, but glassy; that up to this time plaintiff had
never been to a doctor in her life; that since the accident she had had headaches, talked and
moaned in her sleep, walked in her sleep, and complained of her left knee, ankle and
shoulder; that she played the accordion normally before the accident, but had not been able to
hold it, except for a little while at a time, ever since; that she was self-conscious about her
teeth, and talked in her sleep almost every night; that she had never walked or talked in her
sleep before the accident, but had done both since.
Dr. Woodbury, in addition to matters already mentioned, testified that the alveolar process
was fractured in several places, and he had to take out the part of the process that had
become uneven, so plaintiff could wear a partial denture; that this required an operation
which was performed under a local anesthetic; that he made a removable bridge for her
which she was wearing; that she was too young to have a fixed bridge made, and he had
recommended that a fixed bridge be constructed for her at about the age of eighteen.
in several places, and he had to take out the part of the process that had become uneven, so
plaintiff could wear a partial denture; that this required an operation which was performed
under a local anesthetic; that he made a removable bridge for her which she was wearing; that
she was too young to have a fixed bridge made, and he had recommended that a fixed bridge
be constructed for her at about the age of eighteen.
If plaintiff had called Dr. Hardy, her main object would have been to produce
corroborative or cumulative evidence. Defendant produced no evidence to contradict the
positive testimony of plaintiff and her other witnesses concerning the injuries. Medical
testimony was not legally necessary in this case to show their nature or extent.
It is true that the trial court, in its written decision, said that plaintiff, at the time of the
collision, was standing in a safety zone. In its findings of fact, however, that court found
that she was standing on the sidewalk at or near the corner of 7th and Carson streets. There
is substantial evidence to support this finding.
Appellant further contends that it was error for the trial court to say in its written decision
that As to the fixing of damages, it may appear that the damages fixed are somewhat high;
but in view of the times, the increased cost of living, the increased cost of care and attention,
and the law of the cases controlling in damages of this type, the court doubts the inadequacy
(sic) of the damages it now declares to be suffered by the plaintiff. Error is also predicated
upon the ground that no permanent impairment of plaintiff's earning capacity was alleged or
proved. As neither of these points was raised until appellant's reply brief was served and filed,
they will not be considered. The case was submitted on briefs, by stipulation, without oral
argument.
6. The amount to be awarded as damages in this case was a matter resting within the
sound discretion of the trial court. We will not disturb the judgment because, in view of all
the evidence in the case, the amount of damages is not so excessive as to indicate
prejudice or passion on the part of the trial court; the award is not so outrageous, nor so
clearly beyond reason as to shock the judicial conscience, or show that the trial judge
acted with partiality or with a perverse disregard of justice.
in view of all the evidence in the case, the amount of damages is not so excessive as to
indicate prejudice or passion on the part of the trial court; the award is not so outrageous, nor
so clearly beyond reason as to shock the judicial conscience, or show that the trial judge acted
with partiality or with a perverse disregard of justice. If the facts and circumstances in this
case were such as to indicate that the amount fixed as damages was the result of bias,
prejudice, or gross overestimate, we would not hesitate to disturb the judgment.
There is nothing whatever in the record to indicate that there was any intention on the part
of defendant to cause injury to plaintiff or anyone else, but it is so plain from the evidence
that defendant's negligence was the sole proximate cause of plaintiff's injuries that we have
not found it necessary to detail the facts of the accident or the circumstances attending it.
____________
63 Nev. 59, 59 (1945) State v. Skaug
THE STATE OF NEVADA, Respondent, v. PAUL MAYNARD SKAUG,
Alias PAUL MASTERSON, Appellant.
No. 3429
September 5 1945. 161 P.2d 708.
1. Criminal Law.
Portions of confession admitting commission of other crimes not connected with or tending to prove
commission of murder for which accused was on trial and separable from admission of such murder
should have been excluded.
2. Criminal Law.
Evidence that accused has committed another crime, independent of and unconnected with the one for
which he is on trial, is inadmissible.
3. Criminal Law.
Portions of conversation relating to commission of offenses other than the one for which accused is on
trial, if separable from confession of such offense, must be excluded.
4. Criminal Law.
Police officer's testimony as to admissions of commission of offenses other than the murder for which
accused was on trial should have been excluded in the first instance, though district attorney
promised to connect them up, where such promise was obviously impossible of
fulfillment, because offenses were clearly distinct and unconnected.
63 Nev. 59, 60 (1945) State v. Skaug
attorney promised to connect them up, where such promise was obviously impossible of fulfillment,
because offenses were clearly distinct and unconnected.
5. Criminal Law.
Admission of evidence of other offense unconnected with the one for which accused was on trial was
not reversible error where admissible evidence, including confession, and heinous nature of crime clearly
warranted conviction of first-degree murder and death sentence. Comp. Laws, sec. 11266.
6. Criminal Law.
An error resulting in a miscarriage of justice or prejudicing accused in respect to a substantial right
must appear affirmatively to warrant a reversal. Comp. Laws, sec. 11266.
7. Criminal Law.
Motion to strike confession and instruct jury to disregard it on ground that it was not voluntary and
was made while under arrest and duress was properly denied, where uncontradicted evidence showed
confession was made without threat, compulsion, or inducement of any kind.
8. Criminal Law.
Where uncontradicted evidence showed confession was made without threat, compulsion, or
inducement of any kind, requested instruction submitting to jury question of voluntary character of
confession was properly refused.
9. Criminal Law.
If evidence is entirely lacking or insufficient to show that a confession is involuntary, a charge that it
should not be considered if jury believed it to be involuntary is properly refused.
10. Criminal Law.
Trial court was justified in refusing to give in its entirety, proffered instruction which was erroneous
in part, particularly where the other elements included in instruction were fully covered in the charge on
defense of insanity.
11. Criminal Law.
Refusal to give requested instruction authorizing jury to consider evidence of accused's mentality in
determining the degree of his guilt was not error.
12. Criminal Law.
If by reason of insanity accused did not know the nature and quality of his act and that it was wrong,
he is absolved from all guilt; otherwise, in whatever lesser degree his mind may have been affected by
drink, or other causes, he is amenable to punishment as one of normal mind.
13. Criminal Law.
Requested instruction sanctioning argument by defense counsel concerning accused's mental
condition to aid jurors in exercising discretion to fix punishment should they find accused guilty of
first-degree murder was properly refused on ground that it was indefinite.
63 Nev. 59, 61 (1945) State v. Skaug
14. Criminal Law.
Court should not stress any particular evidence to be considered by jury in exercising discretion to fix
punishment should they find accused guilty of first-degree murder.
15. Homicide.
Any error in substituting the word privileged for the word discretion in instructing jury as to their
duty to fix punishment if they found accused guilty of first-degree murder was not prejudicial. Comp.
Laws, secs. 10068, 11266.
16. Homicide.
Where jury found accused guilty of first-degree murder but did not by its verdict fix the punishment,
trial court was bound to pronounce death sentence on the verdict. Comp. Laws, sec. 10068.
17. Jury.
Where jury found accused guilty of first-degree murder but did not fix the punishment, trial court did
not usurp the function of jury by sentencing accused to death, nor was accused thereby deprived of
constitutional right to trial by jury. Comp. Laws. sec. 10068.
Appeal from Second Judicial District Court, Washoe County; William McKnight, Judge.
Paul Maynard Skaug, alias Paul Masterson, was convicted of murder in the first degree
and sentenced to death, and he appeals. Judgment affirmed with directions.
Martin J. Scanlan, of Reno, for Appellant.
General, of Carson City, and Melvin E. Jepson, District Attorney of Reno, for Respondent.
OPINION
Appellant was informed against and tried in the Second judicial district court of Washoe
County for the murder of one Beate Voss. The jury returned a verdict as follows: We, the
jury in the above-entitled action do find the defendant guilty of murder of the first degree."
63 Nev. 59, 62 (1945) State v. Skaug
find the defendant guilty of murder of the first degree. On this verdict the court pronounced
judgment of death, from which this appeal is taken.
While there is no contention that the verdict is not supported by the evidence, we deem it
advisable to set out substantially the material facts. On the night of the 16th of September
1944, Mrs. Beate Voss, an elderly lady who had returned to her home in Reno alone around
the hour of 10:30, was shot and killed by an intruder who was burglarizing the place. The
body was discovered the next morning by a neighbor's maid who had noticed that a screen
had been removed from one of the windows. In addition to the bullet wound in the body there
were three lacerations on the scalp, and abrasions on the back of the right hand and fingers.
The tendons of the fingers were damaged. In the house was found a steel pinch or claw bar.
There were blood stains on the bar and also some gray hairs of the same type and color of the
hair on the victim's head. A number of articles were stolen from the house, including a .32
caliber Smith and Wesson revolver, a box of .32 caliber cartridges, a fountain pen and a gold
band ring.
Appellant was in Reno on the 15th of September and registered at a hotel under the name
of Paul Masterson, Plymouth, Wis., and again on September 16th. He occupied the room
on both occasions and relinquished it on the early morning of the 17th. On September 30,
1944, appellant was picked up on the highway near Marysville, California, by Talmadge
Norwood, a scout captain of the California highway patrol, questioned about his draft
registration and taken to the Marysville police station in the city of Marysville. There a .32
caliber Smith and Wesson revolver was taken from appellant's person. This was the weapon
which was stolen from the house and with which the woman was slain. Also, at that time, was
found in a suitcase he had been carrying, among other articles, the box of .32 caliber
cartridges, the fountain pen and the gold band ring, stolen from the Voss home on the night of
the killing. On the night of September 30 at the Marysville police department in the
presence of the chief of police of Reno and other officials, including the patrol officer who
effected the arrest, appellant made a confession which was reduced to writing and signed
by him.
63 Nev. 59, 63 (1945) State v. Skaug
night of September 30 at the Marysville police department in the presence of the chief of
police of Reno and other officials, including the patrol officer who effected the arrest,
appellant made a confession which was reduced to writing and signed by him. He admitted
the shooting of Mrs. Voss, who had come into the house while he was prosecuting the
burglary; shooting her with the revolver he had found there, and striking her over the head
with it. In the confession he told how, after the shooting, he had made his way south to Los
Angeles and thence north through California to a place where he was apprehended. Moreover,
under specific questions asked by the chief of police, he admitted the commission of a
robbery on the way from Los Angeles, a burglary in Elko before coming to Reno, and two
burglaries in Reno besides the one during which the shooting occurred. The confession was
read to the jury and as to the recital of each of these independent felonies, counsel for
appellant objected on the ground that the evidence was immaterial and incompetent. The
objections were overruled and the confession admitted in evidence in its entirety.
Before the written confession was introduced in evidence, Talmadge Norwood, the patrol
officer who apprehended appellant, and who was present when he made the confession,
testified in behalf of the state over objections, to hearing him admit the burglaries and robbery
stated in the confession. The court afterwards ordered such evidence stricken and instructed
the jury to disregard it.
Richard Heap, superintendent of the bureau of identification of Reno police, a witness for
the state, testified to being present in the office of the chief of police in Reno and hearing
appellant at the request of the district attorney, make a statement in which he admitted a
burglary in Elko, a couple of burglaries in Reno besides the one in which Mrs. Voss was
killed, and a robbery in Fresno, California. In this statement he said when the lady came into
the room and snapped on the light and saw him, she commenced to scream and "holler" and
that he struck her with the gun to silence her, and the gun went off.
63 Nev. 59, 64 (1945) State v. Skaug
saw him, she commenced to scream and holler and that he struck her with the gun to
silence her, and the gun went off. Objections were taken to the admission of the other
offenses except the burglary in Elko and the one in which the killing occurred.
1, 2. The first three assignments are levelled at the rulings allowing in evidence
admissions of other offenses, except the one in which the killing occurred. We think the
assignments are well founded. There was no connection whatever between any of them and
the crime charged. It is well settled that evidence that accused has committed another crime
independent of and unconnected with the one for which he is on trial, is inadmissible. The
rule has well established exceptions and both have received the attention of this court in a
number of cases. State v. McMahon, 17 Nev. 365, 30 P. 1000; State v. Vaughan, 22 Nev.
285, 39 P. 733; State v. Roberts, 28 Nev. 350, 82 P. 100; State v. McFarlin, 41 Nev. 486, 172
P. 371; State v. Monahan, 50 Nev. 27, 249 P. 566; State v. Hall, 54 Nev. 213, 13 P.2d 624;
State v. Behiter, 55 Nev. 236, 29 P. 2d 1000.
3. The state, in the answering brief, admits that if witnesses had been brought to testify to
the commission of such other crimes, their testimony would have been objectionable. This is
an admission that there is no connection between the other crimes and the crime charged.
However, it is insisted by the state that where, as here, the appellant makes the admissions in
a confession to witnesses, the entire conversation is admissible. This is not the rule if the part
relating to such other offenses is separable. If so, it must be excluded. People v. Loomis, 178
N.Y. 400, 70 N.E. 919; State v. Wolff, 337 Mo. 1007, 87 S.W. 2d 436; Stagemeyer v. State,
133 Neb. 9, 273 N.W. 824; People v. Spencer, 264 Ill. 124, 106 N.E. 219; State v. Lord et al.,
42 N.M. 638, 84 P. 2d 80; Rounds v. State, 171 Tenn. 511, 106 S.W. 2d 212; Robinson et al.
v. United States, 61 App. D.C. 370, 63 F. 2d 147; 22 C.J.S. Criminal Law, sec. 820, pages
1440, 1441; Underhill's Criminal Evidence, 4th ed. sec.
63 Nev. 59, 65 (1945) State v. Skaug
1441; Underhill's Criminal Evidence, 4th ed. sec. 265, p. 513.
In People v. Spencer, supra, the court said [264 Ill. 124, 106 N.E. 225]:
While the fact that such statement (confession) may include another offense as well as
that charged does not prevent the confession being received and going to the jury with proper
instructions when there can be no separation of the relevant from the irrelevant parts, when
the relevant parts can be separated from the irrelevant, this must be done, and that part, only,
of the confession admitted which is material to the issues on trial. (Citing authorities.)
In Rounds v. State, supra, the court said [171 Tenn. 511, 106 S.W.2d 214]:
Where a confession indicates that the accused has been guilty of another offense in
addition to that for which he is being tried, that part of the confession relating to the distinct
offense is inadmissible if it can be separated from the portion of the confession relating to the
charge in issue.
In the case before us it appears that the other offenses were clearly separable. None tends
in the slightest degree to prove the other or the offense charged. There is no nexus between
any of them. They could have been and should have been excluded from the consideration of
the jury. As said in People v. Loomis, supra [178 N.Y. 400, 70 N.E. 921]: A simple
statement from the district attorney that he desired only that portion of the conversation which
related to the crimes charged, would have eliminated everything else without the slightest
injury to his case.
4. The admission of the other offenses testified to by the witness Heap should also have
been excluded. They were clearly separable from the confession. The testimony of the patrol
officer as to the other offense should not have been permitted in the first instance. The
promise of the district attorney to connect them up was obviously incapable of fulfillment.
63 Nev. 59, 66 (1945) State v. Skaug
obviously incapable of fulfillment. True, the court struck them out and instructed the jury to
disregard them, but the district attorney's offer of proving a connection enabled him to get the
other offenses before the jury by the process of infiltration, so to speak.
But in view of our statute and the nature and conclusiveness of the evidence, it does not
follow that allowing the jury to consider the other offenses constituted reversible error. The
evidence presents a case that calls loudly for the extreme penalty.
5. An aged lady after spending a pleasant social evening with a neighbor, on returning to
the shelter of her home alone in the late hours of the night, was set upon by a cold blooded
villain and slain under circumstances of revolting atrocity. Besides the death wound inflicted
with her husband's revolver, she was brutalized by clubbing, her valuables were stolen, and
her body left broken and bleeding upon the floor of the ruined home. Hence, in the presence
of such enormous and clearly proven guilt we will not pause to speculate as to whether, if
evidence of other offenses had been omitted the jury might have returned a verdict carrying a
lesser penalty. Section 11266 N.C.L. prevents a reversal. It provides:
No judgment shall be set aside, or new trial granted, in any case on the ground of
misdirection of the jury or the improper admission or rejection of evidence, or for error as to
any matter or pleading or procedure, unless in the opinion of the court to which application is
made, after an examination of the entire case, it shall appear that the error complained of has
resulted in a miscarriage of justice, or has actually prejudiced the defendant, in respect to a
substantial right.
6. We have examined the entire case and in our opinion no such result appears.
Particularly is this so because of the voluntary confession. People v. Hamet, Cal. App., 159 P.
2d 702; People v. Epstein, 21 Cal. App. 2d 488, 69 P.2d 454. An error of the injurious
consequences mentioned in the statute must appear affirmatively to warrant a reversal in
any case.
63 Nev. 59, 67 (1945) State v. Skaug
affirmatively to warrant a reversal in any case. State v. Willberg 45 Nev. 183, 200 P. 475;
State v. Williams, 47 Nev. 279, 220 P. 555; State v. Ramage, 51 Nev. 82, 269 P. 489.
The next three assignments are directed to the court's refusal to give instructions offered by
appellant. The first of these proposed instructions presented by assignment number four, is as
follows:
Some testimony has been offered tending to show the mental caliber or condition of the
defendant. This testimony may be considered by you as bearing on the intent with which the
defendant acted, should you find the defendant did the things charged against him. It may also
be considered by the jury in determining whether the alleged confession was voluntary or
involuntary and whether true or untrue. Should the jury fail to find the defendant had
sufficient mental understanding to form an intent to do a wrongful act deliberately on
September 16, 1944, you should find the defendant not guilty. Should the jury find the
alleged confession was involuntary by reason of the mental condition of the defendant, you
should disregard such confession.
7-9. The court did not err in refusing to give the above proposed instruction. There was no
conflict in the evidence on which the court found the written confession was voluntary and
submitted it to the jury. The chief of police testified that no force was used upon the
appellant; no hope of reward offered him; no threats made, and that he appeared to be in a
normal condition mentally. No evidence was offered by appellant to rebut this testimony, nor
was any objection made to the introduction of the confession in evidence on the ground that it
was not voluntary. True, after the confession was read in evidence the appellant moved to
strike it and have the jury instructed to disregard it on the ground that it was not voluntary,
and made while under arrest and under duress and pressure of seven officers. This motion
was properly denied. No evidence of duress appeared. As the confessions were shown to have
been made without threat, compulsion or inducement of any kind, it would not have been
proper for the court to submit such an issue to the jury.
63 Nev. 59, 68 (1945) State v. Skaug
made without threat, compulsion or inducement of any kind, it would not have been proper
for the court to submit such an issue to the jury. As stated in 23 C.J.S., Criminal Law, sec.
1232, page 797:
If there is no evidence, or only insufficient evidence, to show that a confession is
involuntary, a charge that it should not be considered if the jury believe it to be involuntary, is
properly refused.
See cases cited in Note 42, to the text. See also State v. Williams, 31 Nev. 360, 102 P.
974.
10. The proferred instruction being erroneous in part, at least, the court was justified in
refusing to give it in its entirety. State v. Burns, 27 Nev. 289, 74 P. 983. This is particularly
true because the other element included in it was fully covered in the charge on the defense of
insanity.
Assignment number 5 is aimed at the mistake of law claimed to have been committed by
the court in refusing to give the following requested instruction:
The jury are instructed that you may take into consideration in determining the degree of
accused's guilt such evidence as may be applicable to the defendant's mentality.
11, 12. The refusal was not in error. State v. Fisko, 58 Nev. 65, 70 P. 2d 1113; State v.
Maioni, 78 N.J.L. 339, 74 A. 526, 20 Ann. Cas. 204. Appellant has cited no authority for his
contention except the text found in 16 C.J., paragraph one of section 2456; 23 C.J.S.,
Criminal Law, sec. 1290. It is not in point. That paragraph pertains to the assessing of
punishment by the jury, while the proferred instruction proposed to instruct as to certain
evidence to be considered in determining the degree of guilt. It runs counter to the ruling in
State v. Fisko, supra [58 Nev. 65, 70 P. 2d 1118]:
If by reason of insanity appellant did not know the nature and quality of his act, and that it
was wrong, he was absolved from all guilt; otherwise in whatever lesser degree his mind may
have been affected by drink or other cause, he is amenable to punishment as one of normal
mind.
63 Nev. 59, 69 (1945) State v. Skaug
We affirm that ruling.
By assignment number 6 exception is taken to the court's refusal to give the following
proposed instruction:
You are instructed that the subject of insanity is not entirely removed and it is proper for
counsel to argue that while the defendant is conclusively presumed to be sane to a degree that
it would make the defendant responsible for acts committed by him that does not preclude
counsel from arguing that the person on trial may be afflicted with a mental disease called
insanity but of a lesser nature, but that is, a degree which would not produce an excuse or a
defense to a criminal charge.
13, 14. The trial court refused this instruction on the ground that it is vague and indefinite.
We concur in that opinion. The argument in its defense is that the jury if it found the
defendant guilty of murder of the first degree, had the discretion to fix the punishment at
death or life imprisonment, and it was the duty of his counsel to argue along the lines of his
mental condition to aid the jurors in exercising that discretion, and that it was the duty of the
court to sanction such a line of argument. The court was not obligated to sanction such an
argument, and it is extremely probable that counsel made the argument without such sanction.
The jurors were instructed that it was within their province if they found the defendant guilty
of murder of the first degree to fix the punishment at confinement in the state prison for life.
It would have been improper for the court to have stressed any particular evidence to consider
in exercising that discretion. As said in People v. Kamaunu, 110 Cal. 609, 613, 42 P. 1090,
1091:
There was no error in refusing to instruct the jury as to how they should use the discretion
given them in regard to the punishment in case they found the defendant guilty. This
discretion is given to the jury, and the court cannot direct or advise them upon the subject
further than to inform them of their function.
15. Exception is taken by appellant to the instruction given by the court informing the jury
as to their duty, if they found appellant guilty of murder of the first degree, on account of
the substitution of the word "privileged" for the word "discretion" employed in the
statute.
63 Nev. 59, 70 (1945) State v. Skaug
duty, if they found appellant guilty of murder of the first degree, on account of the
substitution of the word privileged for the word discretion employed in the statute. If
there was any error in this it was not prejudicial.
Appellant assails the validity of the verdict and the judgment of death pronounced upon it.
It is contended that as the jury found the appellant guilty of murder of the first degree it was
their duty to fix the penalty in the verdict either at death or confinement in the state prison for
life under the following provision of section 10068 N.C.L.:
Every person convicted of murder in the first degree shall suffer death or confinement in
the state prison for life, at the discretion of the jury trying the same. * * *.
As before shown, the jury did not fix the penalty in their verdict. As to their duty in this
regard they were instructed:
If the jury finds the defendant guilty of murder in the first degree, then the jury is
privileged to fix the punishment at death or confinement in the State Prison for life. If,
however, after so finding the degree of the offense, the jury does not agree as to the fixing of
the punishment and does not fix the punishment, it will follow as a matter of law that the
Court will have to pass sentence inflicting the death penalty.
16. By this instruction the jury was correctly informed as to the court's function in the
event they should find the appellant guilty of murder of the first degree, and did not fix the
punishment, consequently the court was bound to pronounce the sentence of death on the
verdict returned. State v. Russell, 47 Nev. 263, 274, 220 P. 552, 222 P. 569; Kramer v. State,
60 Nev. 262, 108 P. 2d 304. In each of the above cases such a verdict and the judgment of
death pronounced upon it were upheld.
Counsel for appellant was aware of these cases, but in an elaborate argument in his brief
and orally on the hearing, he had urged us to overrule them and establish a new norm on
the subject in this jurisdiction.
63 Nev. 59, 71 (1945) State v. Skaug
hearing, he had urged us to overrule them and establish a new norm on the subject in this
jurisdiction. We commend his zeal, which is always to be commended in an attorney
defending a capital case, but we are of the decided opinion that our construction of the statute
in State v. Russell and Kramer v. State, supra, is correct.
The question of the proper construction of the statute was exhaustively examined in
Kramer v. State, supra, and we feel that a reiteration of those views would serve no useful
purpose. It suffices to say that People v. Hall, 199 Cal. 451, 249 P. 859, stressed by appellant,
which placed a construction on the statute differing from that given it by former decisions of
that court in force when our statute was adopted, was duly considered in the former case. Our
opinion remains unchanged. As observed in Kramer v. State, supra, if there is to be a different
rule in this state it must be established by the legislature. It would be indeed a melancholy
reflection on the administration of justice in this jurisdiction if Kramer and Loveless had been
done to death on a void verdict. It was to avert the happening of such a mournful event that
the judgment in the case of State v. Loveless was reversed on the first appeal. 62 Nev. 17, 136
P. 2d 236. It was affirmed on the second appeal. 62 Nev. 312, 150 P.2d 1015. Happily, for the
repose of the judicial conscience, justice did not miscarry in the former case or in the latter on
the second trial.
17. The remaining assignments of error, to wit, that appellant was deprived of his
constitutional right of trial by jury, and that the court usurped the function of the jury by
sentencing appellant to death, are to all intents and purposes disposed of by our ruling on the
validity of the verdict and the judgment of death. Both assignments are predicated upon the
silence of the verdict as to the penalty. It is not contended, as indeed it could not be, that
appellant was deprived of the benefit of trial by jury in any other way. We have shown that he
was not deprived of that right in that way. In discussing this assignment reliance is had on
State v. Hall, supra, and State v. Loveless, supra, and passages quoted from the opinions.
If the construction placed upon the California statute by the former case had been placed
upon our statute then State v. Hall would be in point on appellant's contention that he
had been deprived of a jury trial, and the first decision in State v.
63 Nev. 59, 72 (1945) State v. Skaug
State v. Loveless, supra, and passages quoted from the opinions. If the construction placed
upon the California statute by the former case had been placed upon our statute then State v.
Hall would be in point on appellant's contention that he had been deprived of a jury trial, and
the first decision in State v. Loveless, supra, would also be in point, for the principle applied
in each case is the same. But the construction we have placed on our statute due to its
adoption by our legislature when the former decisions of the supreme court of California were
in force, is contra. Consequently, neither case is in point here. Under our construction there is
no mandate to the jury in section 10068 to fix the punishment for murder, as there is to
designate the degree. The jury in the first instance, if they find murder of the first degree,
have the discretion to fix the punishment at confinement in the state prison for life. If they do
not exercise that discretion the trial court must adjudge the penalty at death. In the latter
instance no discretion is involved. An injunction is laid on the jury to designate the degree
and if they fail to do so a defendant has not had the benefit of a jury trial. Consequently, in the
Loveless case on the first trial there was a miscarriage of justice on that account.
As to the last assignment, it follows from what we have held, that there was no usurpation
of the functions of the jury by the trial court in sentencing the appellant to death.
As there is no error in the record to the actual prejudice of the appellant in respect to a
substantial right, the judgment appealed from is affirmed, and the district court is directed to
make the proper order for the carrying into effect by the warden of the state prison the
judgment rendered.
November 15, 1945. 163 P.2d 130.
1. Criminal Law.
Where points made in petition for rehearing were all disposed of in former opinion,
petition was required to be dismissed.
63 Nev. 59, 73 (1945) State v. Skaug
2. Criminal Law.
Appellant to secure a reversal of a conviction because of trial errors must show
affirmatively that the errors resulted in a miscarriage of justice or actually prejudiced
defendant and supreme court can indulge in no presumption favorable to defendant.
Comp. Laws, sec. 11266.
Petition denied.
Martin J. Scanlan, of Reno, for Appellant.
General, of Carson City, and Melvin E. Jepson, District Attorney, of Reno, for Respondent.
OPINION
1. The points made in the petition for rehearing were all disposed of, and we think
correctly, in our former opinion; consequently a rehearing if granted would serve no useful
purpose. We will refer only to one question.
2. The argument is made that this court reached an erroneous conclusion in holding that
the admission of evidence of offenses unconnected with the crime charged did not constitute
reversible error. We pointed out in our original opinion that this was so because all the
evidence, independent of these other offenses, was so conclusive of appellant's guilt of
murder of the first degree under cruel circumstances, that their admission had not resulted in a
miscarriage of justice, or actual prejudice to him in respect to a substantial right. There is not
anything in the petition or otherwise that causes us to doubt the soundness of our ruling. In
this connection it is urged, as it was orally and in counsel's briefs on the hearing of the appeal,
that if the other offenses had not been admitted in evidence the jury might have fixed the
punishment at confinement in the state prison for life.
63 Nev. 59, 74 (1945) State v. Skaug
We disposed of that argument also in the original opinion. The contention is merely a guess
and we are not inclined to speculate concerning it. The contention would have the court
indulge a presumption in favor of the appellant without any legitimate basis for the inference.
This we cannot do. The statute (sec. 11266 N.C.L.) places the burden on the appellant to
show an error of the kind authorizing this court to set aside the judgment. As we said in State
v. Williams, 47 Nev. 279-285, 220 P. 555, 557: From a reading of this statute it must not
only appear that the trial court erred, but it must appear affirmatively that the error resulted in
a miscarriage of justice, or actually prejudiced the defendant. In other words, we can indulge
in no presumption favorable to the defendant. Such is the clear, unequivocal, unambiguous
provision of the statute. State v. Willberg, 45 Nev. 183, 200 P. 475, and State v. Ramage, 51
Nev. 82, 269 P. 489, are to the same effect. Because of the statute as thus construed, the
principal case of Williams v. State, 183 Ark. 870, 39 S.W. 2d 295, cited in appellant's
petition, is of no value as an authority here. In Arkansas, according to the case cited, the law
is that evidence improperly admitted must be treated as prejudicial unless there is something
to show that it is not. In Nevada, as we have seen, prejudice must affirmatively appear.
No good cause being shown for a rehearing, it is hereby denied.
Taber, C.J., concurs.
Horsey, J., did not participate.
____________
63 Nev. 75, 75 (1945) Walker v. Burkham
DAVID C. WALKER, by and Through His Guardian ad Litem, CONRAD H. WALKER,
Appellant, v. BERT BURKHAM, Respondent.
No. 3437
on motion
September 10, 1945. 161 P.2d 649.
That amended complaint stated a new action by a new plaintiff not mentioned in original complaint
was not a jurisdictional defect which defendant, having demurred to amended complaint, could urge for
the first time on appeal from judgment dismissing amended complaint, and hence defendant was not
entitled to have original complaint or motion to strike amended complaint included in the record on
appeal taken on the judgment roll alone.
Appeal from Second Judicial District Court, Washoe County, William McKnight, Judge.
Tort action by David C. Walker, by and through his guardian ad litem, Conrad H. Walker,
against Bert Burkham for personal injuries sustained by David C. Walker. From a judgment
dismissing amended complaint after demurrer thereto had been sustained and plaintiff had
declined to amend further, plaintiff appeals and defendant moves for an order directing that
original complaint and motion to strike amended complaint be included in the record on
appeal. Motion denied.
Royal A. Stewart, of Reno, for Appellant.
William M. Kearney, of Reno, for Respondent.
OPINION
In December 1944 a tort action was commenced in the Second judicial district court,
Washoe County, by Conrad H. Walker, and Conrad H. Walker, guardian ad litem for David
C.
litem for David C. Walker, plaintiffs, against Bert Burkham, defendant. The alleged wrongs
were committed against the person of said David C. Walker. Plaintiffs prayed judgment for
damages as follows: 1. $1,500 for medical and hospital expenses; 2. $5,000 for the bodily
pain, suffering, distress, and discomfort suffered by said David C. Walker; 3. $5,000 for
permanent injuries sustained by him.
In January 1945 an amended complaint was filed in said action by David C. Walker, by
and through his guardian ad litem, Conrad H. Walker, plaintiff, against said Bert Burkham,
defendant. In this amended complaint plaintiff prayed judgment for damages as follows: 1.
$6,500 for the bodily pain, suffering, distress and discomfort suffered by said David C.
Walker; 2. $5,000 for permanent injuries sustained by him.
Defendant demurred generally and specially to said amended complaint, and also moved
the trial court to strike it from the files, and to strike certain specified portions thereof. The
motion to strike the entire amended complaint from the files was made upon the ground that
it was irrelevant, immaterial, redundant, and sham. The court did not rule on the motion to
strike, but sustained the demurrer, at the same time giving plaintiff ten days in which to file a
second amended complaint, or take such other action as he might deem advisable. Plaintiff
declined to amend further, and the court, in April 1945, entered judgment dismissing the
amended complaint. From that judgment plaintiff has appealed to this court, the appeal being
taken on the judgment roll alone. Neither the original complaint nor said motion to strike was
included in the record on appeal.
After appellant's opening brief had been served and filed, respondent moved this court for
an order directing that said original complaint and motion to strike be included in the record
on appeal. The motion is based upon the ground that it is necessary to include said papers in
the record in order to enable this court to determine whether the purported amended
complaint constitutes an amended complaint, or whether it "is an entirely new action by a
new plaintiff not mentioned in the original complaint."
determine whether the purported amended complaint constitutes an amended complaint, or
whether it is an entirely new action by a new plaintiff not mentioned in the original
complaint.
It is not deemed necessary to determine whether the original complaint and the motion to
strike, or either of them, constituted part of the judgment roll. It would avail respondent
nothing if both papers were included in the record on appeal. No contention was made in the
lower court that the amended complaint was a new action by a new plaintiff not mentioned in
the original complaint. Such a contention was not the ground or one of the grounds upon
which defendant's motion to strike the amended complaint from the files was based. Neither
the alleged departure nor the change in parties plaintiff is a jurisdictional defect, and
defendant, having demurred, cannot for the first time urge either of them on appeal. State v.
District Court, 80 Mont. 97, 257 P. 1014; Groom v. Bangs, 153 Cal. 456, 96 P. 503; Ibach v.
Jackson, 148 Or. 92, 35 P. 2d 672; 1 Bancroft's Code Pl., sec. 621, p. 907, n. 8; 1 Ten Year
Supp., Bancroft's Code Pl., Pr. and Rem., sec. 720, p. 404, nn. 12, 14; 41 Am. Jur.,
Pleading, sec. 392 (first two sentences); Id., sec. 895, nn. 17, 20, 7; Id., sec. 396, nn. 10, 11,
12; 49 C.J. 832, note 84.
Motion denied.
On The Merits
January 16, 1946. 165 P.2d 161.
A judgment against a plaintiff who elects to stand upon his complaint, after
sustaining of a demurrer thereto, which was both general and special, will be sustained
if any of the grounds of demurrer was well taken, particularly where plaintiff refuses to
amend.
2. Infants.
At common law, an infant may maintain an action for injuries tortiously inflicted
upon him.
3. Infants.
The statute giving parents a right of action for tortious injury of their minor child
does not deprive infant of his common-law right to sue for damages for such injury,
though elements of the damages recoverable by him may be limited to such items as
pain, suffering, disfigurement, and the like.
elements of the damages recoverable by him may be limited to such items as pain,
suffering, disfigurement, and the like. Comp. Laws, sec. 8553.
Where defendant's contention that it could not determine whether the claim for
damages was made under the first count or second count was not made a ground of
special demurrer, it could be considered on an appeal against plaintiff who elected to
stand upon his complaint after sustaining of a demurrer thereto, which was both general
and special, only in support of the general grounds.
5. Damages.
The prayer is the controlling part of complaint as to amount of damages. Comp.
Laws, sec. 8594, subds. 2, 3.
6. Damages.
A complaint, which states facts showing plaintiff's damages in a manner sufficient to
sustain a judgment, and concludes with a prayer for damages in a named sum, is
sufficient though it fails to contain a formal allegation that plaintiff has been damaged
in a stated amount. Comp. Laws, sec. 8594, subds. 2, 3.
7. Pleading.
The prayer for relief forms no part of statement of the cause of action. Comp. Laws,
sec. 8594, subds. 2, 3.
8. Pleading.
Where each count in amended complaint stated facts sufficient to constitute a cause
of action, even if amount of damages were defectively stated in a prayer for relief, such
defect was not a ground for general demurrer. Comp. Laws, sec. 8594, subds. 2, 3.
9. Pleading.
Amended complaint, seeking to state cause of action for assault and battery, which
alleged that defendant laid violent hands upon person of plaintiff, was not subject to
demurrer as ambiguous, unintelligible, and uncertain because it could not be
ascertained how or in what manner defendant laid violent hands upon plaintiff.
10. Pleading.
Where amended complaint seeking to state cause of action for assault and battery
contained allegation that defendant did willfully and unlawfully and maliciously or
willfully or unlawfully or maliciously beat, strike and trip plaintiff, the adding of the
disjunctive allegation did not make amended complaint uncertain.
11. Assault and Battery.
Under conjunctive allegation willfully and unlawfully and maliciously, in
amended complaint seeking to state cause of action for assault and battery, plaintiff
could, if evidence should prove sufficient, claim damages at trial upon basis of conduct
of defendant which was willful and unlawful and malicious, or, failing to establish all
three, plaintiff would still be in position to show one or two of them.
malicious, or, failing to establish all three, plaintiff would still be in position to show
one or two of them.
12. Appeal and ErrorPleading.
Plaintiff, by realleging, in second cause of action for assault and battery, a paragraph
of first cause of action for assault, rendered second cause of action technically defective
because of uncertainty, but defect did not affect any substantial right of defendant
within statute directing court to disregard any error in pleadings which does not affect
substantial right of parties, since defendant, in preparing his defense, would not be
required to make any different preparation. Comp Laws, sec. 8622.
Action by David C. Walker, by and through his guardian ad litem, Conrad H. Walker,
against Bert Burkham for assault and for assault and battery. From a judgment dismissing the
amended complaint, the plaintiff appeals. Reversed and remanded.
Royal A. Stewart, of Reno, for Appellant.
William M. Kearney, of Reno, for Respondent.
OPINION
The amended complaint purports to allege two causes of actionone for assault, the other
for assault and battery. Plaintiff, a minor, seeks to maintain the action by and through his
guardian ad litem.
Paragraphs VII, VIII, IX and X of the first cause of action read as follows:
VII. That the defendant, on or about the time aforesaid, at or about the place aforesaid,
unlawfully, wilfully and threateningly shouted at the plaintiff, David C. Walker, and
advanced upon the plaintiff aforesaid, rapidly and in an angry and threatening manner, with
intent to commit a trespass upon the person of the plaintiff aforesaid.
intent to commit a trespass upon the person of the plaintiff aforesaid.
VIII. That the defendant was and is a large, virile man, fully capable of seriously injuring
the plaintiff, David C. Walker, and that the plaintiff aforesaid was placed in immediate and
mortal fear and apprehension of an immediate physical injury to his person by and at the
hands of the defendant.
IX. That the plaintiff, David C. Walker, ran away from the defendant and that thereupon
the defendant unlawfully, wrongfully, wilfully and maliciously pursued the plaintiff aforesaid
and ran after the plaintiff aforesaid, to the fright and terror of the plaintiff, David C. Walker.
X. That solely as a result of the wrongful, unlawful, wilful and malicious conduct
aforesaid on the part of the defendant, the plaintiff, David C. Walker, fell upon the ground
with great force and violence, breaking his arm and breaking his eye-glasses.
Paragraph I of the second cause of action realleges paragraphs I to X, inclusive, of the first
cause of action, then proceeds as follows:
II. That the defendant did then and there, wilfully and unlawfully and maliciously or
wilfully or unlawfully or maliciously beat, strike and trip the plaintiff, David C. Walker, and
that the defendant did then and there at the time aforesaid lay violent hands upon the person
of the plaintiff, David C. Walker, and that the defendant did then and there at the time
aforesaid, break the plaintiff's eye-glasses, and break the plaintiff's arm.
III. That by reason of the premises aforesaid, the plaintiff has suffered great bodily pain,
great distress of body and mind, suffering and discomfort and permanent injury to his body;
that he was thereby disabled and hospitalized for a long period of time and was unable to
attend school or to attend to his normal duties.
IV. That by reason of the premises aforesaid, the plaintiff, David C. Walker, was and will
be permanently injured, disabled, scarred and his body rendered unsightly."
injured, disabled, scarred and his body rendered unsightly.
The prayer is for (1) The sum of Six Thousand Five Hundred Dollars ($6,500.00) for the
bodily pain, suffering, distress and discomfort necessarily suffered by the plaintiff, David C.
Walker. (2) The sum of Five Thousand Dollars ($5,000.00) for permanent injuries necessarily
sustained by the plaintiff, David C. Walker.
In the trial court defendant demurred generally and specially to said complaint, and also
made a motion to strike. After hearing arguments on the demurrer and motion, the court made
the following minute order: The Motion to Strike and Demurrer were argued by counsel for
the respective parties, and upon being submitted to the Court for decision, the Court ordered
that the Demurrer be sustained, and the plaintiff was given ten (10) days in which to file a
Second Amended Complaint, or take such other action as he deems advisable. The record
does not show that plaintiff made any application to the court for an amended or
supplemental order showing upon what ground or grounds the demurrer was sustained.
Plaintiff did not file a second amended complaint within the time allowed, or request
additional time within which to do so. He elected to stand upon his amended complaint, and
requested that judgment be awarded defendant so that plaintiff could take an appeal to this
court. The trial court accordingly entered judgment dismissing the amended complaint, and it
is from that judgment that this appeal has been taken.
1. Appellant contends that a general order sustaining a demurrer is improper if the
pleading demurred to is good as against any one or more of the objections raised by the
demurrer. We have found, however, that by the weight of authority a judgment against a
plaintiff who elects to stand upon his complaint, after the sustaining of a demurrer thereto
which was both general and special, will be sustained if any of the grounds of demurrer was
well taken, particularly where the plaintiff refuses to amend.
of demurrer was well taken, particularly where the plaintiff refuses to amend. Aalwyn v.
Cobe, 168 Cal. 165, 142 P. 79; Gutterman v. Gally, 131 Cal. App. 647, 21 P. 2d 1000;
California Trust Co. v. Cohn, 214 Cal. 619, 7 P. 2d 297; Robinson v. Godfrey, 78 Cal. App.
284, 248 P. 268; 1 Ten Year Supp., Bancroft's Code Pl., Pr. and Rem., sec. 223, p. 125;
Ritchie v. Johnson, 158 Kan. 103, 144 P. 2d 925; City of Goldfield v. McDonald, 52 Colo.
143, 119 P. 1069; Paine v. British-Butte Mining Co., 41 Mont. 28, 108 P. 12; Tice v.
Dickerson, 60 Fla. 380, 53 So. 645. It thus becomes necessary to consider whether any
ground of demurrer was well taken.
Two contentions in respondent's brief, (1) that parties to an action cannot be changed by
amendment and (2) that there was no guardian ad litem appointed when the original
complaint was filed and summons issued, require no discussion in view of what was said by
this court in Walker v. Burkham, 161 P.2d 649.
Respondent's main contention is that an action for personal injuries to a minor child can be
maintained in Nevada only by the parents, or by either of them. In support of this view, he
relies upon that part of sec. 8553, N.C.L. 1929, which reads as follows: The father and
mother jointly, or the father or the mother without preference to either, may maintain an
action for the death or injury of a minor child, when such injury or death is caused by the
wrongful act or neglect of another * * *. Further, in support of his position, respondent cites
Perry v. Tonopah Mining Company, D.C., 13 F.2d 865.
2. The authorities seem unanimous to the effect that an infant may maintain an action of
this kind. It is so held in at least some three dozen jurisdictions, including Canada and
England. The rule is so well established that we do not feel it necessary to cite the numerous
cases supporting it. Many, if not most, of them may be found cited in the following: 27 Am.
Jur., Infants, sec. 114, p. 835, n. 4; 43 C.J.S., Infants, sec. 104, p. 268, n.
n. 30; 31 C.J., Infants, sec. 252, p. 1114, n. 67; Anno., 48 Am. Dec. 624 (first full paragraph).
3. While sec. 8553, N.C.L. 1929, gives the parents a right of action for the tortious injury
of their minor child, there is nothing in that section which warrants the conclusion that it was
the intention of the legislature to deprive the infant of his common law right to sue for
damages for such injury, though the elements of the damages recoverable by him may be
limited to such items as pain, suffering, disfigurement and the like. In a suit by the parents,
they would be entitled to recover only such damages as may have been sustained by them,
such as their loss of the child's services and earnings and the medical expenses incurred by
them in effecting a cure. 39 Am. Jur., Parent and Child, sec. 74; 20 Cal. Jur., Parent and
Child, sec. 38, n. 9.
Perry v. Tonopah Mining Company, D.C., 13 F. 2d 865, so strongly relied upon by
respondent, is not in point. In that case the action was for the wrongful death of a minor, and
was brought by the father as administrator. In the opinion Judge Farrington said, The
common law afforded no remedy in damages for a wrongful death. Whatever standing
plaintiff has in the present case must be found in the statutes of Nevada. The remedy, being
wholly statutory, is exclusive. But the common law did and always has afforded a remedy to
an infant for personal injuries tortiously inflicted upon him. In addition to the authorities
already cited, see Durkee v. Central Pac. R. Co., 56 Cal. 388, 38 Am. Rep. 59; 6 Bancroft's
Code Pr. and Rem., sec. 4846, p. 6352, n. 12.
It was also stated in the opinion in the Perry case [13 F. 2d 869] that sec. 4996 Rev. Laws
of Nev. (now 8553, N.C. L., 1929) permits the parent to bring an action in his own right for
the death or injury of a minor child. The proceeds are his. It is plain that by proceeds, as
applied to an action by parents for injuries to their minor child, is meant moneys recovered
for damages sustained by them because of the child's injuries, not moneys recoverable by
the infant himself for pain, suffering and other damages personal to himself.
sustained by them because of the child's injuries, not moneys recoverable by the infant
himself for pain, suffering and other damages personal to himself. In studying the Perry case
it must be borne in mind that the discussion by Judge Farrington refers primarily to the kind
of action he had under consideration and the facts alleged in the complaint therein. We are
convinced that the court in that case did not hold or say, or intend to hold or say, that under
the statutes of Nevada an infant has no cause of action for pain, suffering, etc., resulting from
personal injuries tortiously inflicted upon him.
The purpose of our legislature in enacting sections 8553 and 8554 N.C.L. 1929 (formerly
sections 4996 and 4997 Rev. Laws of 1912), is stated by the court in the Perry case, 13 F.2d,
at page 868. On page 870, 13 F.2d, Judge Farrington further says: What the statute does give
is a new and independent right of action to the kindred who are injured by the death. It is a
right of action which has no existence until the death of the injured party, and results
therefrom. It makes no account of wrong done to the deceased; it is only concerned with the
loss to the relatives. We are satisfied that said sec. 8553 does not affect in any way the
capacity of infants to sue in cases such as that at bar.
4. Another contention of respondent is that there is no allegation in either count of the
amended complaint setting forth damages claimed to have been suffered. He maintains that it
cannot be determined whether the claim for damages is made under the first count or the
second count. With respect to this contention it may be observed that it was not made a
ground of special demurrer; it can therefore be considered on this appeal only in support of
the general ground.
Section 8594 N.C.L. 1929, reads in part: The complaint shall contain: * * * 2. A
statement of the facts constituting the cause of action, in ordinary and concise language. 3. A
demand for the relief which the plaintiff claims. If the recovery of money or damages be
demanded, the amount thereof shall be stated.
5-8. In the present case neither cause of action contains a separate ad damnum clause. The
amount of damages claimed, however, is stated in the prayer of the amended complaint. The
prayer is the controlling part of the complaint as to the amount of damages. Bank of British
Columbia v. City of Port Townsend, 16 Wash. 450, 47 P. 896; 2 Sutherland on Damages, 4th
Ed., sec. 415, p. 1355, n. 15. Each count states facts sufficient to constitute a cause of action
within the meaning of subdivision 2 of said sec. 8594. By the weight of authority a complaint
which states the facts showing plaintiff's damages in a manner sufficient to sustain a
judgment, and concludes with a prayer for damages in a named sum, is sufficient though it
fails to contain a formal allegation that plaintiff has been damaged in a stated amount.
Gallagher v. California Pacific Title & Trust Co., 13 Cal. App. 2d 482, 57 P.2d 195;
Hollopeter v. Palm, 134 Or. 546, 291 P. 380, 294 P. 1056; Westervelt v. McCullough, 68 Cal.
App. 198, 228 P. 734; Abalas v. Consolidated Const. Co., 32 Cal. App. 732, 164 P. 19;
Tucker v. Cooper, 172 Cal. 663, 158 P. 181; Barr v. Southern California Edison Co., 24 Cal.
App. 22, 140 P. 47; Riser v. Walton, 78 Cal. 490, 21 P. 362; 1 Bates' New Pleading and
Practice, p. 264, (A) 2; 1 Bancroft's Code Pleading, sec. 164, pp. 281, 282, n. 17; 8 Cal. Jur.
sec. 123, p. 883, n. 13; 49 C.J., Pleading, sec. 189, p. 176, n. 74; 17 C.J., Damages, sec. 301,
p. 999, n. 46; See also 25 C.J.S., Damages, sec. 130. This court has held in a number of cases
that the prayer for relief forms no part of the statement of the cause of action. First National
Bank v. Abel, 56 Nev. 489, 56 P. 2d 148; Keyes v. Nevada Gas Co., Limited, 55 Nev. 431, 38
P. 2d 661; Kingsbury v. Copren, 43 Nev. 448, 454, 187 P. 728, 189 P. 676. So, even if the
amount of damages be defectively stated in a prayer for relief, such defect is not a ground for
general demurrer.
There remain for consideration paragraphs VI, VII, VIII and IX of defendant's demurrer
based upon alleged ambiguity, unintelligibility and uncertainty, particularly in the second
cause of action.
ambiguity, unintelligibility and uncertainty, particularly in the second cause of action. Said
paragraphs VI and VII of the demurrer read as follows:
VI. That Paragraph II of said second purported cause of action is uncertain in that it
cannot be ascertained therefrom how or in which manner the said defendant layed violent
hands upon the person of the plaintiff, David C. Walker,' nor can it be ascertained therefrom
whether or not it is intended to allege that the defendant acted wilfully and unlawfully and
maliciously, or whether it is intended to allege that it was only wilfully or only unlawfully or
only maliciously that the defendant acted toward the plaintiff.
VII. That the said second cause of action is uncertain in that it cannot be ascertained
therefrom by the allegations I to X, inclusive, which have been pleaded by reference in the
purported second cause of action, whether the alleged purported injury to plaintiff arose when
as alleged, the plaintiff fell upon the ground' as set forth in Paragraph X of the first cause of
action, or whether the alleged and purported injury of the plaintiff was a result of the alleged
and purported beating, striking and tripping the plaintiff, as alleged in Paragraph II of the
second cause of action.
Said paragraphs VIII and IX of the demurrer state that the amended complaint is
ambiguous and unintelligible, as well as uncertain, for the reasons set forth in said paragraphs
VI and VII.
9. The contention that it cannot be ascertained how or in what manner the defendant laid
violent hands upon plaintiff is so manifestly without merit as not to require discussion.
10, 11. The disjunctive allegations in paragraph II of the second cause of action are not, in
the court's opinion, ambiguous, unintelligible, or uncertain. Such alternative allegations are
permissible in a case of this kind. It is difficult, however, to understand why the pleader saw
fit to add the words "or wilfully or unlawfully or maliciously."
pleader saw fit to add the words or wilfully or unlawfully or maliciously. Under the
conjunctive allegation wilfully and unlawfully and maliciously plaintiff could, if the
evidence should prove sufficient, claim damages at the trial upon the basis of conduct on the
part of defendant which was wilful and unlawful and malicious; or failing to establish all
three, he would still be in a position to show one or two of them. But by adding the words or
wilfully or unlawfully or maliciously to the conjunctive allegation, plaintiff may possibly
have placed himself in such a position that at the trial he must either prove the wilfullness
and the unlawfulness and the maliciousness, or failing in that, be compelled to rely on only
one, not one or two, of said averments.
12. Coming now to the special ground of demurrer set forth in paragraph VII thereof, the
court is of the opinion that as the result of realleging, in the second cause of action, paragraph
X of the first cause of action, the former is technically defective as pointed out in the
demurrer. But we are unable to see how this defect affects any substantial right of defendant
(respondent) within the meaning of sec. 8622, N.C.L. 1929. We say this because defendant in
preparing his defense, will not be required to make any further or different preparation than
he would if paragraph X of the first cause of action had not been realleged in the second
cause of action.
Judgment reversed, and cause remanded for further proceedings not inconsistent with this
opinion.
____________
63 Nev. 88, 88 (1945) State v. Sheeley
THE STATE OF NEVADA, Respondent, v. FRANK
SHEELEY, Appellant.
No. 3434
September 20, 1945. 162 P.2d 96.
1. Receiving Stolen Goods.
Evidence authorized conviction of receiving a stolen slot machine. Comp. Laws, sec. 10335.
2. Criminal Law.
Where evidence disclosed that defendant was an accessory before the fact of larceny and could have
been proceeded against as a principal and also disclosed that he committed offense of receiving stolen
property, state could elect to prosecute for either offense, since they are distinct offenses. Comp. Laws,
secs. 9958, 10323, 10335.
3. Receiving Stolen Goods.
Larceny of slot machine was complete when bartender with felonious intent took possession thereof
for purpose of delivering it to defendant; hence defendant, regardless of whether be took machine from
bartender at door and carried it to automobile, or whether he received it in automobile, was guilty of
receiving the thing stolen. Comp. Laws, secs. 9958, 10323, 10335.
4. Criminal Law.
In prosecution for receiving stolen slot machine, where evidence was conflicting on the issue as to
whether thief was an accomplice to the offense of receiving, issue was properly left to jury under
instruction that, if they so found, corroboration of testimony of accomplice was necessary. Comp. Laws,
sec. 10323, 10335.
5. Criminal Law.
In prosecution for receiving a stolen slot machine, although evidence justified jury finding that thief
was an accomplice to the receiving, corroboration of his testimony was sufficient to authorize conviction.
6. Criminal Law.
The supreme court presumes that jury followed evidence and the law given by the court.
7. Criminal Law.
The supreme court cannot speculate as to which witnesses were believed by the jury and what
evidence jury acted on, but can only look to whole record to determine whether verdict rendered finds
support therein.
8. Criminal Law.
Proffered instructions which contained incorrect statements of law were properly refused.
9. Criminal Law.
Where deputy district attorney in closing argument made statements which were out of bounds of
legitimate argument, but objection thereto was promptly sustained and court rebuked deputy
district attorney and instructed jury not to pay any attention to anything not
brought out in evidence, and deputy district attorney then apologized to court,
defendant was not prejudiced.
rebuked deputy district attorney and instructed jury not to pay any attention to anything not brought out in
evidence, and deputy district attorney then apologized to court, defendant was not prejudiced.
Frank Sheeley was convicted of receiving stolen property, and he appeals. Affirmed.
John R. Ross, of Carson City, for Appellant.
General, of Carson City, and Melvin E. Jepson, District Attorney, and Harold O. Taber and
C. Lester Zahniser, Assistant District Attorneys, all of Reno, for Respondent.
OPINION
Appellant was convicted in the Second judicial district court of the County of Washoe, for
the crime of receiving stolen property. He was sentenced to a term of not less than one year,
nor more than five years in the state prison, and to pay a fine of one thousand dollars. He has
appealed from the judgment and the order denying his motion for a new trial.
The errors assigned are as follows:
(1) That the verdict is contrary to the evidence.
(2) That the court erred in refusing to give three instructions requested by the defendant.
(3) That the court erred in refusing to grant a new trial by reason of misconduct on the part
of the deputy district attorney, which was calculated to, and did, prejudice the jury against the
defendant, and prevented him from having a fair trial.
In support of the first assignment it is insisted that the only testimony calculated to show
the guilt of appellant Sheeley, was that of the state's witness, Jean Edward Jackson, who
was an accomplice, and whose testimony was not corroborated on the essential elements
of Sheeley's guilt; that he was found guilty of a crime he did not commit, namely,
receiving stolen goods, in that the evidence, if it proved anything, proved he was guilty as
an accessory and therefore a principal to the crime of larceny and should have been
acquitted of the crime charged.
the only testimony calculated to show the guilt of appellant Sheeley, was that of the state's
witness, Jean Edward Jackson, who was an accomplice, and whose testimony was not
corroborated on the essential elements of Sheeley's guilt; that he was found guilty of a crime
he did not commit, namely, receiving stolen goods, in that the evidence, if it proved anything,
proved he was guilty as an accessory and therefore a principal to the crime of larceny and
should have been acquitted of the crime charged. Henceforth we will refer to appellant as
such, or by his proper name.
The state's witness, Jackson, testified substantially as follows: On August 20, 1944, and
since the 3d and 4th of the preceding month, he was employed as a bartender by William
Harrah at the Blackout Bar at Lincoln alley in the city of Reno. The Blackout Bar was owned
and operated by Harrah, and among the equipment used in connection therewith, also owned
by him, was one $1 slot machine. Jackson had been acquainted with the appellant Sheeley for
approximately three or four months prior to said August 20. The latter frequented the
Blackout Bar during that time. On August 15 he entered into an arrangement with Sheeley to
sell him the said slot machine for $500, with the understanding that Sheeley would bring in
some one not so well known as himself and introduce him to Jackson to take the machine out
of the place. On said August 20 between the hours of 7 and 8 p.m., Jackson phoned to
Sheeley at the Silver Dollar on Center street in Reno, with which the latter was connected,
and pursuant to the conversation between them, Sheeley came to the Blackout Bar at about
8:30 that evening with a man by the name of Collins and had a drink at the bar. Sheeley said
he had the car parked at the storeroom back door. Jackson suggested that he would take the
slot machine out himself and walked from behind the bar, removed it from its pedestal, and
took it to the storeroom and set it down to open the door. When he opened the door Sheeley
was standing there and Collins was holding the car door open and sitting behind the driver's
seat.
and sitting behind the driver's seat. Sheeley picked up the machine and Jackson closed the
door and locked it and went back to work. He was not authorized by Harrah to sell the
machine. His only authority at the Blackout Bar was to take care of the business of selling
drinks. He took the machine, he said, with the intention of depriving Harrah of its ownership.
Around 9 o'clock that evening Jackson checked his cash, turned it into the office, met his wife
and went directly to the Silver Dollar Bar for the purpose of collecting the $500. He found
Sheeley there, who told him that he could not pay him the $500, because the person he was
reselling the machine to didn't know whether he could make a profit off of it himself because
he had bought similar machines for a cheaper price.
Jackson testified on cross-examination that he had been charged in the district court with
grand larceny for receiving the slot machine and had plead not guilty to the information.
In rebuttal Jackson testified that on August 14 he and his wife, in response to a call from
Sheeley, went to his Oxford Apartments and there Sheeley proposed to him that he go to the
district attorney and sign a statement that he had permission from Harrah to sell the machine,
and that a previous statement he had signed was under duress and under promise that he
would be exonerated when the trial was over; that if he would do this Sheeley would see that
he got money enough to get out of town, and at his (Sheeley's) trial he could make a plea and
stand a fine. Mrs. Jackson, in rebuttal, corroborated this testimony. Clayton Collins, a witness
for the state, testified among other things not essential to be stated, that on August 20, 1944,
around 8 o'clock in the evening, he and Sheeley went in a car into Douglas alley and parking
on Lincoln, went through the back entrance into the Blackout Bar where they met the
bartender who asked Sheeley if he had a car. Sheeley said yes. The bartender then asked them
to have a drink. He then said, I will get it for you, or I can get that for you now."
now. Sheeley and Collins then went back to the car and the bartender brought a dollar slot
machine out and placed it in the car. He brought it through the storeroom door. Collins drove
the car to the Oxford Apartments on Lake street where Sheeley carried the machine upstairs.
Then they walked down town and met Jackson. Collins then left. He did not hear any
conversation between them.
Harry D. Fletcher, chief of police of Reno, was a witness for the state and testified to the
following conversation he had in his office with appellant on the morning of August 21:
Q. Will you tell the court and jury in substance what the conversation was? A. It was in
regard to a slot machine which had been stolen out of Harrah's Bingo Parlor. * * *
Q. What was said about it? A. I asked Sheeley what became of the slot machine that was
taken out of the Blackout Bar and he stated that he didn't know anything about any slot
machine. He didn't know what I was talking about.
Q. What else was said? A. So then I read a report or statement made by Jackson to the
effect that the machine had been taken out of the Blackout Bar the night previous, and then
Sheeley told me he would bring the slot machine back, after reading this statement
implicating him and Jackson, and I told him that the machine was listed as stolen and I
wanted it back with the contents, about $200.00 in the machine. Sheeley was on bond at that
time.
William Harrah, a witness for the state, testified in substance that he operated the Blackout
Bar on 231 Lincoln alley in the city of Reno. He owned the dollar slot machine presented to
him as state's exhibit A. It disappeared from the Blackout bar on the night of August 20. He
valued it at $1,000. He paid $450 for it. He knew Sheeley. Had seen him in the Blackout
frequently prior to August 20. Sheeley never negotiated with him for the purchase of the
machine.
for the purchase of the machine. Witness never authorized Jackson to sell the machine or
remove it from the Blackout Bar. Witness saw Sheeley in the Blackout Bar on the afternoon
of August 21 and the following conversation took place in the presence of R.A. Ring,
Manager of the Bingo Parlor and Bar: A. Mr. Sheeley came in the bar and said: Where is
your dollar machine? I came in to play it,' and I said: You ought to know,' and he bought a
drink, and I believe I said, Where is the machine?' and he said, I have it.' And I said, How
do I go about getting it back?' and he said, Well, you have to drop the charges,' and I said, I
don't know anything about dropping charges. I didn't make any charges.' He said, The
charges will have to be dropped or the machine will wind up in the river,' and I said, I didn't
make any charges,' and he said, somebody did, because they picked me up,' and he turned to
Mr. Ring and said: Did you make any charges?' and Mr. Ring said, No, * * *' and Mr.
Sheeley suggested we go and talk to the chief of police. * * * On the way to the police station
Sheeley said, Let us get this straight, are you going to drop the charges?' and I said, I
understood we were going to talk to the chief of police about it,' and I said, I want my
machine back,' and he said, Oh, you are backing out,' and then he left us. Saw him later that
day at the Blackout. He said the machine had not been opened and started to leave, and then
came back and said, Whenever you can get those fellows to take the pressure off of me I will
appreciate it,' and I said, O.K.' There was $196.00 in the machine.
Robert Ring, a witness for the state, was present at the Blackout Bar and at the police
station on August 21 and testified substantially to the same conversation as testified to by
Harrah.
1. The defense interposed was that appellant Sheeley was at all times acting in good faith
and believed that Jackson had authority to sell the machine. Sheeley asserted in his testimony
that on finding that the machine had money in it and knowing that a man would not sell a
machine with money in it, he met Jackson and told him there was something wrong and
that he would not pay him the $500 without a bill of sale or at least the keys to the
machine; and that he then immediately tried to contact Harrah at the Blackout Bar but
could not find him, and two or three hours later was arrested by the chief of police, and
charged with stealing the machine.
machine had money in it and knowing that a man would not sell a machine with money in it,
he met Jackson and told him there was something wrong and that he would not pay him the
$500 without a bill of sale or at least the keys to the machine; and that he then immediately
tried to contact Harrah at the Blackout Bar but could not find him, and two or three hours
later was arrested by the chief of police, and charged with stealing the machine. It is
unnecessary to set out in extenso the testimony given in support of the defense. The jury did
not believe that Sheeley was a bona fide purchaser, and we are of the opinion that the
evidence is sufficient to support the verdict of guilty as charged.
2. In this connection, appellant contends that he was found guilty of a crime he did not
commit, namely receiving stolen property. It is insisted strenuously that the evidence, if it
proves anything, proves that he was an accessory before the fact to the crime of larceny and
should have been proceeded against as a principal under sec. 9958 N.C.L. But the evidence
also discloses that he committed the offense of receiving stolen property. Larceny, and
knowingly receiving stolen property are separate and distinct crimes under our statutes.
Sections 10323 and 10335 N.C.L. Therefore, under the circumstances of this case the state
could elect to prosecute for either offense. State v. Webber, 112 Mont. 284, 116 P. 2d 679,
686, 136 A.L.R. 1077. In the case supra it appeared that the defendant was an accessory
before the fact to the larceny, but did not participate in its caption or asportation. He was
convicted for receiving stolen property and the court held:
Larceny and receiving stolen property are under our statutes separate and distinct crimes
and where as here the evidence shows the defendant guilty of both crimes, we think it is
optional with the state to prosecute the offender for either.
See also to the same effect Smith v. State, 59 Ohio St. 350, 52 N.E. 826; People v.
Thompson, 274 Ill. 214, 113 N.E. 322; Metcalf v. State, 9S Fla.
N.E. 322; Metcalf v. State, 98 Fla. 457, 124 So. 427; People v. Rivello, 39 App. Div. 454, 57
N.Y.S. 420; People v. Stoddard, 48 Cal. App. 2d 86, 119 P.2d 160; Rountree v. State, 144
Tex. Cr. R. 576, 164 S.W. 2d 847; Reser v. State, 27 Ariz. 43, 229 P. 936; 53 C.J. p. 514. It is
stated in 45 Am.Jur. p. 393:
Thus, it has been said that the reason for the general rule, that is, that the thief may not
receive the stolen property from himself, disappears where the receiving of the stolen
property is not embraced in the caption and asportation, or where the person prosecuted for
the receiving is not the principal thief or guilty of the actual taking and carrying away,
although guilty of assisting in the larceny or as accessory before or after the fact. Accordingly,
the prevailing American rule appears to be that an accused may be convicted of criminally
receiving stolen property, even though he was a guilty participant in the stealing of it, where
he took no part in the actual caption and asportation but participated only as an accessory
before or after the fact, or in a manner not involving his presence at the taking, even though
made a principal in the larceny artificially, by statute.
3. Appellant insists that the rule cannot apply here for the reason that the evidence shows
that he participated in the asportation of the property from the dominion of the owner. Hence
he would come within the rule that one who commits larceny cannot be adjudged guilty of
receiving the thing stolen. This contention is based upon the testimony of Jackson, who said
he took the machine and set it down in order to open the door. But both Collins and Sheeley
testified that Jackson took the machine out and placed it in the car. It is argued that as the jury
convicted Sheeley they must have believed Jackson and disbelieved Sheeley and his
witnesses. This is the purest speculation. But it is of no importance whether the jury believed
Jackson or the others. The larceny was complete at the very time Jackson took the machine
for the purpose of delivering it to appellant, he having taken possession of it with a
felonious intenteven if it was not then removed from the owner's premises.
taken possession of it with a felonious intenteven if it was not then removed from the
owner's premises. People v. Rivello, supra.
4. Further in support of the contention that the verdict was contrary to the evidence, it is
asserted that Jackson was an accomplice and being such, corroboration of his testimony was
necessary, and further contends that the instructions given by the court relative to what
constitutes an accomplice, were insufficient; in other words, it is appellant's contention that
the court should not have defined what constitutes an accomplice and left to the jury under
such an instruction, a determination of whether or not he actually was an accomplice, but
should have instructed the jury that Jackson was in fact an accomplice, and being such, his
testimony must be corroborated. This because as appellant views the evidence, there is no
conflict on said question. Authorities differ as to whether the thief can be an accomplice to
the crime of receiving stolen property. In California in the early case of People v. Kraker,
decided in 1887, and reported in 72 Cal. 459, 14 P. 196, 1 Am. St. Rep. 65, it was held that
the question of whether or not the thief was an accomplice, was for the jury and should be
submitted to them under proper instructions. This case was later held to be inapplicable
because of the amendment of the statute in 1915. This amendment defined an accomplice.
The statutes of Nevada contain no such definitions and they are much the same as were the
statutes of California at the time of the rendition of the said decision in the case of People v.
Kraker, supra. The rule in New York is that the thief can be an accomplice of the one who
receives stolen property. People v. Kupperschmidt, 237 N.Y. 463, 143 N.E. 256, 32 A.L.R.
447. The distinction, as made in California because of the said statute of 1915, is fully
discussed in the case of People v. Williams, 46 P. 2d 796, at page 797. We think in this case
the question of whether or not Jackson was an accomplice was for the jury, the evidence
being in conflict. The trial court recognized such to be the fact and under the law very
properly submitted the question to the jury and give it proper instructions.
to the jury and give it proper instructions. State v. Coroles, Utah, 277 P. 203.
5-7. The evidence is sufficient to justify the jury in finding that Jackson was an
accomplice, and there is also sufficient corroboration of Jackson's testimony to authorize the
jury to act thereon. It must be presumed by this court that the jury followed the evidence in
the case, and the law given by the court. This court cannot speculate as to which witnesses
were believed by the jury and what evidence they acted on. We can only look to the whole
record and determine whether the verdict rendered finds support therein, and as to this, we
find the evidence to be ample.
8. The other errors assigned need little discussion. The instructions proffered by appellant
were not discussed by his counsel. They were properly refused as they contained incorrect
statements of the law. In this connection we will state that the attorney for the appellant was
not his attorney at the trial of the case.
The court did not err in refusing to grant a new trial on account of the following remarks
of the deputy district attorney in his closing argument to the jury:
In summing up this case for you, I leave with you one thought. If you want to clean up
this town * * * if you want to show the Center street commandos who is running this town. *
* *
9. True, the prosecutor was out of bounds of legitimate argument in making such
statements. They were promptly objected to by counsel, and the court, with equal promptness,
rebuked the deputy district attorney and instructed the jury not to pay any attention to
anything not brought out in the evidence. The prosecutor then apologized to the court. We
think, therefore, that appellant sustained no prejudice by reason of the remarks. State v.
Squier et al., 56 Nev. 386, 54 P.2d 277.
For the reasons given, the judgment and order denying the motion for a new trial are
affirmed.
____________
63 Nev. 98, 98 (1945) Engle v. Engle
SALLY-HELEN SHERRY ENGLE, Appellant v.
CARL JEAN ENGLE, Respondent.
No. 3447
December 28, 1945. 164 P.2d 750.
1. Divorce.
Where decree of divorce does not contain a reservation for support of the child by defendant, the
court would have no jurisdiction to amend it during minority of the child, after expiration of six months
from entry thereof. Rules of District Court, rule 45.
2. Divorce.
Reservation in decree of divorce granting custody of minor child to mother, and reserving jurisdiction
over minor with right to modify order at any time before child reached majority, was sufficiently broad to
authorize court to modify decree after expiration of six months so as to provide for the payment for
support and education of such child. Rules of District Court, rule 45.
3. Divorce.
Although reservation in decree of divorce relating to custody of minor child providing for
modification of decree before child reached majority was capable of two constructions, that one should
be adopted that is consonant with the judgment and which would authorize modification so as to provide
for an allowance for care, support, and education of such minor.
Action for divorce by Sally-Helen Sherry Engle against Carl Jean Engle. Decree of
divorce, and from an order denying a motion by plaintiff to modify the decree to provide for
payment of reasonable amount of money to be used for the care, support, and education of
minor child, the custody of whom was awarded to plaintiff, plaintiff appeals. Reversed and
remanded.
Julian Thruston, of Las Vegas, for Appellant.
No appearance for respondent.
OPINION
On May 31, 1944, in the Eighth judicial district court of Clark County, the said
Sally-Helen Sherry Engle was awarded on her complaint a decree of divorce from the said
Carl Jean Engle.
63 Nev. 98, 99 (1945) Engle v. Engle
of Clark County, the said Sally-Helen Sherry Engle was awarded on her complaint a decree of
divorce from the said Carl Jean Engle. The decree contained the following provisions:
It is further ordered that the exclusive care, custody and control of the minor child of the
parties hereto, namely, Sherry Jean Engle, a daughter, of the approximate age of 2 1/2 years,
be, and it hereby is, awarded to plaintiff, with the defendant to have the right to see and visit
with said minor child at all reasonable times. The court hereby expressly reserves and retains
jurisdiction over the said minor child and may alter, change or modify this order in
connection therewith at any time between the date hereof and the arrival of said child at the
age of majority.
A motion made by the plaintiff for an order of the court changing and modifying the said
decree to provide that said defendant pay to her a reasonable amount of money, to be used by
her for the care, support and education of said minor child, came on for hearing on the 10th
day of September 1945. The motion was denied by the court on the ground that the decree did
not reserve and retain jurisdiction in the court to modify it so as to provide for the support of
said minor child, and more than six months had expired from the date of the decree. Hence
this appeal by the plaintiff. We will continue to refer to the parties as plaintiff and defendant.
District court rule XLV, which the latter asserted on the hearing of the motion deprived the
court of jurisdiction, reads:
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified, or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification, or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
Plaintiff contends (a) that if no reservation had been made in the divorce decree to
provide for the support of the child by defendant, the court nevertheless had jurisdiction
to so amend it at any time during the minority of the child, and {b) if the court was not so
empowered the reservation in the decree concerning the child must be construed as one
including child support.
63 Nev. 98, 100 (1945) Engle v. Engle
made in the divorce decree to provide for the support of the child by defendant, the court
nevertheless had jurisdiction to so amend it at any time during the minority of the child, and
(b) if the court was not so empowered the reservation in the decree concerning the child must
be construed as one including child support.
1-3. As to the first branch of the contention, the rule is well established to the contrary.
Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638; Dechert v. Dechert, 46 Nev. 140, 205 P. 593;
Aseltine v. District Court, 57 Nev. 269, 62 P.2d 701. But we need not elaborate as the second
branch of appellant's contention must be allowed. We think the lower court's construction of
the decree was too narrow and that the reservation is broad enough to include child support.
The court expressly reserved jurisdiction over the minor child and power to alter, change or
modify the order in connection therewith at any time before the child reached the age of
majority. It could have been more explicit as to child support, but it should be given a
reasonable intendment bearing in mind the nature of the action. We must presume that the
judicial mind was concerned for the welfare of the child, which included adequate support as
well as proper care, custody and control. Such support by the mother may have been
sufficient in the opinion of the court at the time of the rendition of the decree when the child
was young (2 1/2 years) but that this condition would continue during all the years of its
minority, could not be foreseen. For these reasons a reservation for child support should have
been made in the decree and would have been consistent with the pleadings. So, even though
the reservation be capable of two constructions, that one should be adopted that is consonant
with the judgment and should have been rendered on the facts and law of the case. 34 C.J.
502. The above rule seems to be the most applicable in view of the wording of the decree and
the nature of the case.
The order of the court denying plaintiff's motion for an order changing and modifying the
decree so as to provide that said defendant pay her a reasonable amount of money to be
used by her for the care, support and education of said minor child, is reversed and the
case is remanded to the lower court for proceedings consistent with this opinion.
63 Nev. 98, 101 (1945) Engle v. Engle
provide that said defendant pay her a reasonable amount of money to be used by her for the
care, support and education of said minor child, is reversed and the case is remanded to the
lower court for proceedings consistent with this opinion.
____________
63 Nev. 101, 101 (1945) Ex Parte Skaug
In the Matter of the Application of PAUL MAYNARD SKAUG
for a Writ of Habeas Corpus.
No. 3449
December 28, 1945. 164 P.2d 743.
1. Statutes.
A state which adopts statute of another state adopts not only the text but the construction placed upon
the statute by highest court of the state from which it is adopted.
2. Statutes.
In adopting statute from California which gave jury discretion to determine punishment for first
degree murder, Nevada legislature intended that the then prevailing interpretation of statute by California
supreme court should be the law of Nevada. Comp. Laws, sec. 10068.
3. Constitutional Law.
The court had no right to indulge in judicial legislation by giving a statute adopted from California a
different interpretation than California supreme court's interpretation, which was prevailing at time of
adoption of the statute. Comp. Laws, sec. 10068.
4. Criminal Law.
Unless by statute a jury's recommendation of punishment has been accorded some legal effect, it
possesses none.
5. Homicide.
Where jury is unable to agree upon penalty for first degree murder, or fails to say anything as to
punishment in their verdict, court must as matter of law impose the death penalty, and has no discretion.
6. Criminal Law.
Where jury does not expressly fix life imprisonment as punishment for first degree murder, pursuant
to statute, any recommendation, such as recommendation for mercy or leniency, can have no effect and
jury's inability to agree upon recommendation would be immaterial. Comp. Laws, sec. 10068.
7. Statutes.
In construing statutes, on basis of historical background and public policy, courts may consider a
phrase transposed and may supply suitable punctuation to accomplish the evident purposes and intent of
the legislature.
8. Homicide.
The statute providing for punishment of first degree murder by death or life imprisonment at jury's
discretion should be construed so as not to create uncertainty on instability in the consistency of its
application and administration, and so as not to confess error in past decisions of court interpreting such
statute as requiring death sentence where verdict does not specify life imprisonment. Comp. Laws, sec.
10068; Const. Nev. art. 1, secs. 3, 8; U.S.C.A. Const. Amend. 14.
9. Habeas Corpus.
Where execution of death sentence, under verdict which did not fix punishment for first degree
murder as authorized by statute, would not result in miscarriage of justice as to accused, accused was not
entitled to release on habeas corpus. Comp. Laws, sec. 10068; Const. Nev. art. 1, secs. 3, 8;
U.S.C.A. Const. Amend. 14.
Original Proceeding in the matter of the application of Paul Maynard Skaug for a writ of
habeas corpus for release from custody under a death sentence. Proceeding dismissed and
petitioner remanded.
Martin J. Scanlan, of Reno, for Petitioner.
General, of Carson City, and Melvin E. Jepson, District Attorney, of Reno, for Respondent.
OPINION
Per Curiam:
On the 18th day of October 1944 an information was filed in the Second judicial district
court, in and for the county of Washoe, charging petitioner with the crime of murder in the
first degree. On the 19th day of October 1944 the time set for arraignment, the petitioner
appeared, and upon being informed by the court of his right to counsel before being
arraigned, said that he did not think it was any use to appoint an attorney to represent him, but
the court, bearing in mind the nature of the charge in the information, appointed Martin J.
Scanlan, Esq., a member of the bar of Washoe County, Nevada, to represent petitioner, and
on motion of the said attorney it was ordered that the arraignment be continued until
October 20, 1944, at 11 o'clock a.m.; petitioner, with his said attorney, appeared for
arraignment on the 20th day of October 1944, and the arraignment was duly had,
whereupon his said attorney requested that November 6, 1944, at 10:30 o'clock a.m.,
said attorney it was ordered that the arraignment be continued until October 20, 1944, at 11
o'clock a.m.; petitioner, with his said attorney, appeared for arraignment on the 20th day of
October 1944, and the arraignment was duly had, whereupon his said attorney requested that
November 6, 1944, at 10:30 o'clock a.m., be set as the time for petitioner to enter his plea; on
the 6th day of November 1944, petitioner, with his said attorney, appeared in said court at the
time appointed for petitioner's plea, and in response to the question as to whether petitioner
was ready to enter his plea, petitioner remained mute and did not answer; thereupon the said
attorney for petitioner stated that his client remained mute and would not plead; the court,
therefore, ordered that a plea of not guilty be entered, which was done.
On stipulation of counsel for the respective parties, it was ordered that the trial of
petitioner upon such information be set for December 13, 1944, at 10 o'clock a.m. On said
last-mentioned date the trial of the petitioner commenced at the appointed time, and was
concluded on December 15, 1944, and submitted to the jury; on the said 15th day of
December 1944 the jury returned into court with their verdict, in words and figures as
follows:
No. 85808 Dept. No. 1.
In the Second Judicial District Court of the State of
Nevada, in and for the County of Washoe.
The State of Nevada,
Plaintiff,
vs.
Paul Skaug, alias
Paul Masterson,
Defendant.
Verdict
We, the jury in the above entitled action, do find the defendant guilty of murder in the
first degree.
Dated: this 15th day of December, 1944.
Lester McCurry,
Foreman.
The petitioner then asked that the jury be polled which was done, and each juror, for
himself and not one for the other, answered, Yes, in response to the inquiry, Is that your
verdict?
The petitioner thereupon waived the statutory time for pronouncing judgment, and
consented that judgment might be rendered and sentence imposed on December 16, 1944, at
11:30 a.m. At the said appointed time the petitioner, with his attorney, Martin J. Scanlan,
Esq., appeared for the pronouncement of judgment and the imposition of sentence; upon the
petitioner having stated that he had no just or legal cause to show why judgment should not
be rendered, and stating that he consented that he be sentenced at that time, the court
proceeded to pronounce judgment, and impose sentence of death upon the petitioner, as
follows: Therefore, it is the judgment of this court, pursuant to the statute is such cases made
and provided, that for the crime of murder in the first degree of which you have been found
guilty, you suffer the death penalty by means of the administration to you of lethal gas by the
Warden of the State Prison of Nevada, within the limits of said prison near Carson City,
Nevada. The date of your execution is to be fixed by a warrant to be executed and signed by
me and to occur during a week not less than sixty days or more than ninety days from this
date, and the sheriff of Washoe County is hereby directed to deliver you to some authorized
person to be designated by the Warden of said prison to receive you, as is required by law, to
the end that judgment and sentence of this court is fully executed. You will now be remanded
to the custody of the sheriff for the execution of this sentence.
On said 16th day of December 1944 a warrant of execution was duly issued by said court,
by which the warden of the state prison of the State of Nevada was duly ordered to execute
said judgment and sentence by the execution of petitioner by the administration to him of
lethal gas within the limits of the state prison of Nevada, in Ormsby County, State of Nevada,
some time during the week commencing Sunday the 11th day of March 1945 and ending
Saturday the 17th day of March 1945.
during the week commencing Sunday the 11th day of March 1945 and ending Saturday the
17th day of March 1945.
From the judgment of the trial court, the petitioner appealed to this court, whereupon this
court made an order suspending the execution of said judgment and sentence until the
determination of said appeal; on the 5th day of September, 1945, this court filed its opinion
affirming the judgment of the trial court, and directing the district court to make the proper
order for the carrying into effect, by the warden of the State prison, the judgment rendered.
State v. Skaug, 63 Nev. 59, 161 P.2d 708.
On the 1st day of October 1945 petitioner filed in this court a petition for a rehearing, and
on November 5, 1945, the state filed its answer to said petition, and on the 15th day of
November 1945 this court filed its opinion and order denying a rehearing in said case. 63
Nev. 72, 163 P.2d 130.
The trial court, pursuant to the above-mentioned directive of this court, on the 10th day of
December 1945 again sentenced the petitioner to death by lethal gas, and a warrant of
execution was issued accordingly to the warden of the Nevada state prison, authorizing said
warden to execute petitioner on the 4th day of January 1946 by the administration of lethal
gas.
The petitioner, on the 17th day of December 1945, filed in this court a petition for a writ of
habeas corpus, upon the alleged grounds, that the trial court, to-wit, the Second Judicial
District Court of the State of Nevada, in and for the County of Washoe, was without
jurisdiction, or exceeded its jurisdiction, in pronouncing and entering its judgment and
sentencing petitioner to death, and said court was without jurisdiction to issue its warrant of
execution to the warden of said prison to execute said judgment and sentence by executing
petitioner by lethal gas within the limits of said prison; * * * that there is no statutory law or
provision of the Constitution of the State of Nevada which gives a trial court jurisdiction or
power to pronounce a judgment and sentence of death upon a defendant who is found
guilty of murder in the first degree, and the jury duly impaneled and sworn in said cause
fails, or is unable by disagreement, to exercise its discretion and to determine or fix the
penalty for said crime of murder in the first degree at death, or confinement in the state
prison for life"; that it was the exclusive function and discretion of the jury to fix the
punishment at death, or confinement in the State Prison for life, and that "the trial court
was without jurisdiction to fix the penalty at death, when the jury disagreed as to the
punishment, and thereby usurped the exclusive function of the jury to exercise its
discretion in determining the penalty."
trial court jurisdiction or power to pronounce a judgment and sentence of death upon a
defendant who is found guilty of murder in the first degree, and the jury duly impaneled and
sworn in said cause fails, or is unable by disagreement, to exercise its discretion and to
determine or fix the penalty for said crime of murder in the first degree at death, or
confinement in the state prison for life; that it was the exclusive function and discretion of
the jury to fix the punishment at death, or confinement in the State Prison for life, and that
the trial court was without jurisdiction to fix the penalty at death, when the jury disagreed as
to the punishment, and thereby usurped the exclusive function of the jury to exercise its
discretion in determining the penalty.
The petitioner further asserts that he has been denied a trial by jury, in a capital case,
within the contemplation and meaning of sec. 3, art. I of the constitution of the State of
Nevada; that he may be deprived of his life without due process of law, in violation of sec. 8,
art. I, of the constitution of the State of Nevada; and that the said judgment and sentence of
death are in violation of the fifth and fourteenth amendments of the constitution of the United
States, by depriving petitioner of his liberty, and such judgment and sentence, if carried into
effect, will deprive the petitioner of his life without due process of law, and that the petitioner
is unlawfully imprisoned, detained and restrained of his liberty by Richard Sheehy, warden of
the Nevada state prison, in Ormsby County, Nevada.
An alternative writ was issued on said 17th day of December 1945, to which, on December
21, 1945, respondent, as warden of the state prison, filed his return and his response to said
petition; on said 21st day of December 1945 petitioner filed a supplement to his petition, and,
on said last-mentioned date, the respondent filed his memorandum of points and authorities.
On the said 21st day of December 1945 a full hearing was had, during all of which petitioner,
with his attorney, Martin J. Scanlan, Esq., was present, the petitioner's body having been
produced in this court by the said warden, pursuant to the said writ; the original warrant
of execution was then produced and exhibited to this court; and the controversial matters
involved were then argued by respective counsel, whereupon the matter was submitted
to this court for decision.
been produced in this court by the said warden, pursuant to the said writ; the original warrant
of execution was then produced and exhibited to this court; and the controversial matters
involved were then argued by respective counsel, whereupon the matter was submitted to this
court for decision.
The contention of the petitioner that he was denied due process of law and that, within
constitutional contemplation, he was denied a trial by jury, because the trial judge fixed the
penalty without any jurisdiction so to do, or in excess of the trial court's jurisdiction, is based
upon the contention that, under the provisions of section 10068, Nevada Compiled Laws
1929, vol. 5, the function right and power to fix the punishment in cases in which first degree
murder is charged is conferred exclusively upon the jury, where a defendant is found guilty
upon trial by jury.
The part of said sec. 10068 upon which petitioner's contention is based is as follows:
Every person convicted of murder in the first degree shall suffer death or confinement in the
state prison for life, at the discretion of the jury trying the same; * * *.
This court has repeatedly been required to construe that statute, and has upon several past
occasions given expression to what we believe to be the proper interpretation.
In Ex parte Kramer, 61 Nev. 174, 122 P.2d 862, in which, on behalf of the petitioner,
similar grounds for the discharge of the said petitioner, Kramer, were asserted, as in the
instant case, this court stated, on page 181 of 61 Nev., on page 865 of 122 P.2d: We are
convinced that when the statutory provision in question was adopted from California, it was
the intention of the Nevada legislature that the statute should be construed in accordance with
the views expressed in the early decisions of the California supreme court discussed in
Kramer v. State, supra [60 Nev. 262, 108 P.2d 304].
1. It is a principle of statutory construction too well settled and too generally applied to
require further extended discussion here, especially in view of our treatment of it in
previous decisions involving the same question, that a state which adopts the provisions
of a statute of another state, adopts not only the text of that statute, but also the
construction placed upon it by the highest court of the state from which it is adopted.
extended discussion here, especially in view of our treatment of it in previous decisions
involving the same question, that a state which adopts the provisions of a statute of another
state, adopts not only the text of that statute, but also the construction placed upon it by the
highest court of the state from which it is adopted. This court has frequently expressed its
adherence to that principle. Some of the cases in which we have done so, and which are cited
in the opinion in Kramer v. State, 60 Nev. 262, on pages 275 and 276, 108 P.2d 304, are:
McLane v. Abrams, 2 Nev. 199, 206, 207; State v. Robey, 8 Nev. 312, 320, 321; O'Brien v.
Board of Commissioners, 41 Nev. 90, 101, 102, 104, 167 P. 1007; In re Walker River Irr.
Dist., 44 Nev. 321, 332, 195 P. 327; Menteberry v. Giacometto, 51 Nev. 7, 14, 267 P. 49;
Hard v. Depaoli, 56 Nev. 19, 30, 41 P. 2d 1054; Minden Butter Mfg. Co. v. First Judicial
District Court, 57 Nev. 29, 33, 56 P.2d 1209.
In the said opinion in Kramer v. State, supra, immediately after the citation of the above
authorities, we expressed our view as follows [60 Nev. 262, 108 P. 2d 310]: Upon the basis
of these authorities we are of the opinion that the rules laid down in the early California cases
hereinbefore cited should prevail in this state until such time as our legislature may see fit to
change them.
2, 3. We still believe that position is sound. It was undoubtedly the clear intention of the
Nevada legislature, at the time of the adoption of that statute, that the then prevailing
interpretation of the statute by the supreme court of California, in defining the scope and
extent of the discretion of the jury, in fixing the punishment of a defendant convicted by such
jury of murder in the first degree, should be the law of Nevada in the interpretation of the
statute in this state. Such being the legislative intent, this court, if, without legislative
sanction, we resorted to some other interpretation, would be guilty of judicially usurping the
functions and authority vested exclusively in the legislature. We have no desire to indulge in
judicial legislation, neither have we the constitutional right so to do.
We have, in State v. Russell, 47 Nev. 263, 271, 220 P. 552, 222 P. 569, in Kramer v. State,
supra, in Ex parte Kramer, supra, and in the opinion in the instant case, so fully set forth and
explained the interpretation of the California statute in the early California cases that it will
serve no good purpose to repeat herein, at length, our analysis and discussion of those early
California cases.
Typical of the interpretation of the California statute upon the point in question in the
instant case, and which was involved in the case of People v. Welch, 49 Cal. 174, 179, is the
expression in the opinion in the latter case (and which we quoted in Kramer v. State, 60 Nev.
on pages 273 and 274, 108 P. 2d on page 309, supra), as follows: But the Act amending
section 190 of the Penal Code does not give the general discretion which juries exercised
under the Virginia statute. Here their discretion is limited, at most, to determining which of
two punishments shall be inflicted; and we think that it is still more restricted, and is to be
employed only where the jury is satisfied that the lighter penalty should be imposed.
Again, in the same opinion, the court, after referring to People v. Littlefield, 5 Cal. 355,
uses this language: By parity of reasoning we may say, in view of the former punishment for
the crime of murder of the first degree, and the history of legislation on the subject in this
State and elsewhere, that it was the purpose of the legislature (by the amendment of section
190) to permit the jury, in a case where the facts proved brought the crime of the defendant
within the statutory definition of the higher offense, but they believed the punishment of
death too severe, to declare that he should be imprisoned for life. We think, therefore, the
statute should be construed as if it read: Shall suffer death, or (in the discretion of the jury)
imprisonment in the state prison for life.'
The case of People v. Welch was decided in 1874, the year following the adoption by the
California legislature, in 1873, of the provision conferring certain discretion upon the jury in
first degree murder cases.
upon the jury in first degree murder cases. This was more than thirty years before Nevada
adopted that statute, in 1907, and the California supreme court adhered to that interpretation,
at least, until after the decision in People v. Rollins, 179 Cal. 793, 179 P. 209, decided in
1919, about twelve years subsequent to the date of Nevada's adoption of the statute.
In People v. Luis, 158 Cal. 185, 110 P. 580, 583, decided in 1910, the supreme court of
California said: Section 190, Pen. Code, makes death the punishment for murder in the first
degree, but gives the jury the power, in its discretion, to substitute life imprisonment
therefor.
And in People v. Rollins, supra [179 Cal. 793, 179 P. 210], the same court said: Murder
in the first degree is punishable by death unless the jury sees fit to affirmatively assess the
penalty at imprisonment for life.
In the California case of People v. French, Cal. Sup., 7 P. 822, in the opinion on rehearing,
69 Cal. 169, 10 P. 378, 384, decided in 1886, it is stated: In other words, a person convicted
of murder in the first degree shall not escape punishment because the jury that convicted him
by a valid verdict may have disagreed upon the question of punishment, or, which is
equivalent to the same thing, returned a verdict which was silent as to the penalty.
This quotation from People v. French, supra, is incorporated in this court's opinion in
Kramer v. State, supra, 60 Nev. on page 275, 108 P.2d 304, and, in that connection, People v.
Luis, supra, and People v. Rollins, supra, are therein cited as being clearly expressive of the
interpretation by the California supreme court of the provision in question.
The district courts of Nevada, in instructing juries, in first degree murder cases, have
consistently and quite generally followed the interpretation of the early California cases. They
did so even long prior to our decision upon the petition for a writ of prohibition in the case of
State v. Russell, decided in 1923. A typical example of such instructions of our district
courts, after Nevada adopted the California statutory provision in question in 1907, are the
instructions which were given in each of four first degree murder cases tried in the Fourth
judicial district court, in and for the county of Elko, in 190S and 1909, and upon the trials
of which Judge George S.
adopted the California statutory provision in question in 1907, are the instructions which
were given in each of four first degree murder cases tried in the Fourth judicial district court,
in and for the county of Elko, in 1908 and 1909, and upon the trials of which Judge George S.
Brown, a very learned and able district judge, who had made a special study of the matter,
presided. Those cases were: State v. Dolan, Fourth District Court, Elko County, file No. 377;
State v. Scott, Fourth District Court, Elko County, file No. 375; State v. McGowan, Fourth
District Court, Elko County, file No. 380; and State v. Hay, Fourth District Court, Elko
County, file No. 415. In the Hay case, which is a fair example of the instructions, the court
instructed the jury upon the proposition in question, as follows:
In one respect only, have you any real discretion as to your verdict. Should the verdict of
the jury convict the defendant of murder of the first degree, the law permits the jury to award
the penalty. This may be death or imprisonment for life. A verdict of murder of the first
degree will require the imposition of a sentence of death unless the jury by their verdict fix
the penalty at life imprisonment.
If you find the defendant guilty of murder of the first degree and believe her punishment
should be confinement in the State Prison for life, you may say in your verdict.
We, the jury empaneled in the above entitled action find the defendant, Florence O. Hay,
guilty of murder of the first degree and fix her punishment at life imprisonment.'
If you find the defendant guilty of murder of the first degree, and believe that she should
suffer the death penalty, or if you are unwilling to exercise your discretion, your verdict may
be:
guilty of murder of the first degree.' "If you find the defendant guilty of murder of the
second degree, your verdict may be:
If you find the defendant guilty of murder of the second degree, your verdict may be:
We, the jury empaneled in the above entitled action, find the defendant, Florence O.
Hay, guilty of murder of the second degree.'
If you find the defendant not guilty, you may say in your verdict:
not guilty.'
In State v. Russell, supra, in the opinion in the proceeding wherein Russell, who had been
convicted of murder in the first degree, sought a writ of prohibition to restrain the trial court
from issuing a warrant of execution, upon the ground that the jury before whom petitioner
was tried did not fix the death penalty, or any penalty, and that the judgment of the court so
fixing it is void, since there can be no such penalty adjudged by the court until the jury has by
its verdict fixed it at death, this court stated:
The authorities are divided upon the proposition presented, but, in view of the fact that
our statute is identical with the California statute, from which it was probably taken, we are of
opinion that we should follow the interpretation placed upon the statute of that state long
before our statute was adopted, wherein it was held that a verdict identical with the one in this
case, under an instruction similar to the one complained of, was valid.
For this reason we deny the writ.
In the instant case, at the time the verdict was returned into court by the jury, the following
occurred:
The Court: Have the jury agreed upon a verdict?
Foreman Curry: We have, Your Honor.
The Court: Will you kindly state the verdict?
Foreman Curry: We find the defendant guilty of murder in the first degree. We are unable
to agree upon a recommendation.
4, 5. Unless by statute a recommendation has been accorded some legal effect, it
possesses none. Under our law in Nevada, the punishment for first degree murder is death,
or, in the discretion of the jury trying the same, imprisonment for life.
law in Nevada, the punishment for first degree murder is death, or, in the discretion of the
jury trying the same, imprisonment for life. In cases where the jury is unable to agree upon a
penalty, or fails to say anything as to punishment, in their verdict, the court, under the
uniform interpretation of our statute since the same was adopted, is required, as a matter of
law, to impose the death penalty. As to this, the trial court has no discretion, in a case tried by
jury, and in which the defendant has been found guilty of murder in the first degree.
6. It necessarily follows that any recommendation, for instance, a recommendation for
mercy or leniency, in such a case, is futile, and can have no effect. If the jurors, therefore, in
the instant case, or some of them, were considering such a recommendation, and failed to
agree upon it, such failure, or the lack of any such recommendation, could not have deprived
the defendant of any right. Any such action on the part of the jury could have had no legal
effect upon the court in pronouncing judgment and imposing sentence. Such inability to agree
upon a recommendation was entirely immaterial. State v. Stewart, 9 Nev. 120, 134; Kramer v.
State, supra. In the latter case, on page 272 of the opinion in 60 Nev., on page 308 of 108
P.2d, this court stated: In State v. Stewart, 9 Nev. 120, 134, it was held that the
recommendation of mercy constituted no part of the verdict, and should not have been
recorded with it. Counsel assails this ruling as barbarous, inhuman, and cruel and implacable.
This criticism is wholly unwarranted, for the simple reason that when that case was decided,
as well as when the crime there under consideration was committed, the only penalty for first
degree murder was death, neither court nor jury having any discretion in the matter. That
being so, it is perfectly clear that the recommendation for mercy, in the absence of statute,
could not be considered by the court. In some states there are statutes expressly authorizing
the jury in a murder case to accompany its verdict with a recommendation for mercy.
a recommendation for mercy. But there is no such statute in Nevada, nor, so far as we are
advised, has there ever been one.
If the jury in the instant case, in which their foreman orally reported their inability to agree
upon a recommendation, meant that they were unable to agree upon or fix the punishment, as
counsel for the petitioner in his petition for habeas corpus, and in his opening brief upon
appeal, indicated they may have meant, it is insisted by petitioner that such disagreement, or
the failure of the jury to exercise its discretion and to determine or fix the penalty, rendered
the verdict void; that the discretion to do so is exclusively the function of the jury, and upon
such failure of the jury so to do, the court had no jurisdiction to impose the death penalty.
This theory of the petitioner is entirely contrary to the law of Nevada upon the subject.
Such law, as we conceive it to be, is clearly stated in State v. Russell, supra, in State v.
Kramer, supra, in Ex parte Kramer, supra, and in this court's opinion on appeal in the instant
case.
7. This court, in construing the portion of said statute, section 10068, N.C.L. 1929, vol. 5,
involved in the instant proceeding, has not been unmindful of the factor of the punctuation of
the provision in question. In fact, this court, in the Russell and Kramer cases and in the
instant case, has given full consideration to it. In that connection we feel free to state, that
were the element of grammatical construction and punctuation of the provision alone
involved, we would be able to discern, and perhaps agree with, the interpretation so earnestly
presented by counsel for the petitioner. There is, however, very much more involved. We feel
certain, from our study of the early California cases, that the judges in those cases felt fully
justified, from their knowledge of the historical background, in that state, of the law as to
punishment for murder in the first degree, and from their conception of public policy (which
to us seems most sound), in disregarding the punctuation of that provision to the extent of
disregarding the position of the comma which occurs immediately after the word "life," and
before the phrase "at the discretion of the jury trying the same" {both in the California
statute, Pen.
comma which occurs immediately after the word life, and before the phrase at the
discretion of the jury trying the same (both in the California statute, Pen. Code, sec. 190, and
in the Nevada statute). According to the great weight of authority, under such circumstances
the courts even have the right to consider a phrase transposed and to supply suitable
punctuation, in order to accomplish the evident purpose and intent of the legislature.
In Sutherland on Statutory Construction, 3d ed., vol. 2, sec. 4939, p. 477, the learned
author had stated: The better rule is that punctuation is a part of the act and that it may be
considered in the interpretation of the act but may not be used to create doubt or to distort or
defeat the intention of the legislature. When the intent is uncertain, punctuation, if it affords
some indication of the true intention, may be looked to as an aid. In such a case the
punctuation may be disregarded, transposed, or the act may be repunctuated, if the act as
originally punctuated does not reflect the true legislative purpose.
And in Crawford on Statutory Construction, sec. 199, p. 342, the principle is very aptly set
forth in the following language: Of course, the punctuation of a statute may lend some
assistance in its construction, but when the intention of the statute and the punctuation thereof
are in conflict, the former must control, even where the punctuation is regarded as a part of
the statute. In other words, the punctuation will not control the plain meaning of the text of an
enactment. It is subordinate to the text, and the retention of a word is of far more importance
than the position of a comma. Indeed, the court may punctuate, or disregard existing
punctuation, or repunctuate in order to give the legislative intention effect. * * *.
There was good reason of the most impelling character why the California supreme court
construed the statute as it did in the early cases. The punishment there for murder in the first
degree, from the inception of statehood, and, indeed, from the beginning of territorial
government, had been death.
government, had been death. No discretion was conferred upon the courts, or upon any other
tribunal, or upon any authority, to alter or change that penalty. Upon conviction of murder in
the first degree, the punishment was, therefore, certain and sure. To confer general discretion
upon the court or upon any other tribunal or authority, would have been to create uncertainty
and would have been most unwise. Even more unwise would it have been to confer exclusive
discretion upon a body of twelve persons, requiring them affirmatively to agree upon the
punishment, as between death and life imprisonment, and to return their verdict either
expressly or impliedly fixing the penalty as one or the other, before same could be imposed.
In cases in which the jury failed to agree upon the punishment or for any other reason, or
without reason, failed to exercise their discretion, the court, under such an interpretation,
recognizing exclusive discretion in the jury, would have been powerless to impose the
sentence of death, even though the jury had failed to exercise its discretion to fix the
punishment at life imprisonment. We believe the supreme court of California and this court
have heretofore decided correctly in disregarding the punctuation of the statute to the extent
of treating the discretion of the jury as being special, and limited to the substitution of life
imprisonment for the death penalty, in cases in which they deemed the punishment of death
too severe. The only possible alternative construction would constitute such a drastic
departure from sound principle and lead to such unwholesome, and, in some cases, sinister
results, amounting to miscarriage of justice, that it should not be indulged, unless the
legislature, in clear and unequivocal language, manifests the intent so to do.
The interpretation of the statute, in accordance with the early California cases, so generally
followed in Nevada, by our courts and by the legal profession, and so consistently adhered to
by this court, has become firmly established in the law of this state by the presumed intention
of the legislature at the time of its adoption, and by consistent usage and application by our
courts, and for this court to change it without action by the legislature would be a
flagrant usurpation, by the judiciary, of a purely legislative power.
courts, and for this court to change it without action by the legislature would be a flagrant
usurpation, by the judiciary, of a purely legislative power. We respect the clear division of
powers provided by our constitution, as between the legislative, the executive and the judicial
departments of the state government, and we can discern no valid reason why, in the instant
case, we should exceed, or disregard, the proper constitutional limitation upon our authority.
To interpret the statute in accordance with the contention of the petitioner would make us
guilty of creating judicial legislation.
8. There is further just reason why we should do all possible in interpreting the statute in
question, being, as it is, a law far reaching in its consequences, as not to create uncertainty, or
instability in the consistency of its application and administration. The statute should be
interpreted, applied and administered fairly, impartially and without discrimination. For us to
interpret the statute as petitioner's counsel indicates we should would be a confession on our
part of fatal error in all the past decisions of this court interpreting such statute. The inevitable
conclusion would be that this court had sanctioned the condemnation to death of Russell and
Kramer upon judgments void because based upon verdicts so irregular, insufficient and
incomplete as to amount to no legal basis for the judgments rendered.
We will conclude this opinion by reaffirming what this court said in the opinion on appeal
in the instant case, which was, in part, as follows: As observed in Kramer v. State, supra, if
there is to be a different rule in this state it must be established by the legislature. It would be
indeed a melancholy reflection on the administration of justice in this jurisdiction if Kramer
and Loveless had been done to death on a void verdict. It was to avert the happening of such a
mournful event that the judgment in the case of State v. Loveless was reversed on the first
appeal. 62 Nev. 17, 136 P.2d 236. It was affirmed on the second appeal. 62 Nev. 317, 150
P.2d 1015. Happily, for the repose of the judicial conscience, justice did not miscarry in the
former case or in the latter on the second trial."
justice did not miscarry in the former case or in the latter on the second trial.
9. It is our firm conviction, after carefully considering all phases of the matter, that the
conclusion we have reached and above indicated in the instant proceeding will result in no
miscarriage of justice as to the petitioner.
This proceeding is hereby dismissed, and petitioner is remanded to the custody of the
warden of the state prison.
____________
63 Nev. 118, 118 (1946) State v. McKay
THE STATE OF NEVADA, Respondent, v. LADELL
MCKAY, Appellant.
No. 3432
January 16, 1946. 165 P.2d 389.
1. Criminal Law.
If defendant falsified as to an important matter, jurors were at liberty to question defendant's
credibility upon other disputed points, and to disregard his entire testimony except insofar as it had been
corroborated by other credible evidence, or by facts proven on the trial.
2. Homicide.
Evidence supported conviction of murder in first degree based upon killing of victim in perpetration
of robbery.
3. Criminal Law.
If there is substantial evidence to support verdict, the evidence will not be weighed by supreme court,
nor verdict or judgment based thereon disturbed upon alleged basis of insufficiency of evidence to sustain
or justify the verdict. Const. art. 6, sec. 4.
4. Criminal Law.
The discretion of determining in a particular case whether exceptional conditions of fact justify
shackling of defendant during course of trial is in trial court, and exercise of such discretion will not be
interfered with unless that discretion was abused.
5. Criminal Law.
Permitting a defendant to be shackled during his trial is justifiable only upon trial court having found,
in exercise of its judicial discretion, in the particular case, the existence of exceptional conditions
reasonably rendering necessary a departure from general rule against shackling.
6. Criminal Law.
A sheriff, charged with responsibility of safely keeping a person, has the right, in his
discretion, to handcuff one charged with murder or other felonious crime when he is
being taken from and to the court.
63 Nev. 118, 119 (1946) State v. McKay
person, has the right, in his discretion, to handcuff one charged with murder or other felonious crime
when he is being taken from and to the court.
7. Criminal Law.
Where trial court possessed knowledge as to defendant's conviction of a previous felony, of his
desertion from armed forces and escape from military guardhouse, and of his attempt to escape from
county jail while waiting trial, trial court did not abuse its discretion in denying defendant's motion to
have shackles removed from him during trial, even though trial court, in stating reason for his ruling,
erroneously made it appear that he was deferring to sheriff's discretion instead of exercising his own
judicial discretion.
8. Criminal Law.
Upon motion to remove shackles or handcuffs from a defendant during course of trial, trial court has
right to take into consideration knowledge acquired outside of formal evidence offered and admitted at
trial.
9. Criminal Law.
In absence of good reason for having prisoner manacled during trial, conviction will be reversed, but
if trial court in exercise of its discretion determines that shackles are necessary to prevent prisoner's
escape, self-destruction, violence, or for peaceful trial, shackles need not be removed during trial, but
such action will be subject to closest scrutiny on review.
10. Criminal Law.
Denial of defendant's motion to have handcuffs removed during trial did not deny defendant his
constitutional right to a fair and impartial trial on ground that defendant was thereby prejudiced before
jury, where trial court did not abuse its discretion in denying defendant's motion in view of its knowledge
as to past criminal acts, conduct and character of defendant. Comp. Laws, sec. 10656.
11. Criminal Law.
The portions of sheriff's affidavit relating to his having learned that defendant had previously been
confined in Utah penitentiary for burglary and that he had escaped from guardhouse at army camp were
inadmissible in murder prosecution, as hearsay, and also because of the relation to past offenses having
no connection with the instant case.
12. Criminal Law.
That portion of sheriff's affidavit relating to his having been informed by federal bureau of
investigation that defendant while in county jail wrote a letter to woman in Utah requesting that hacksaw
blades be sent him was inadmissible in murder prosecution as hearsay.
13. Criminal Law.
Ordinarily, evidence in relation to an intended attempt to escape from incarceration in connection
with present prosecution would be material at the trial to show defendant's consciousness of guilt and fear
of consequences.
63 Nev. 118, 120 (1946) State v. McKay
14. Criminal Law.
The portion of sheriff's affidavit relating to letter alleged to have been written by defendant while in
county jail to woman in Utah requesting that hacksaw blades be sent him, although it would have been
relevant at trial to show consciousness of guilt and fear of consequences, was not proper for that purpose
after the trial upon motion for new trial upon ground of insufficiency of evidence to justify the verdict.
15. Criminal Law.
No evidence would be proper upon a motion for new trial that was proper, relevant, or material to
issues at the trial, involving guilt or innocence of defendant, and not there introduced.
16. Criminal Law.
Only the evidence admitted at trial, and before case was finally submitted to jury, can be considered
upon a motion for new trial in determining sufficiency of evidence to justify the verdict.
17. Criminal Law.
The portion of sheriff's affidavit narrating defendant's attempted escape from county jail while waiting
trial, when admitted upon hearing of defendant's motion for new trial, was admissible only to show
criminal and desperate character of defendant for purpose of showing reasonable necessity for keeping
him handcuffed at time of the trial, and failure to restrict use of affidavit for such purpose was erroneous.
18. Criminal Law.
Though jurors may be permitted to testify as to whether any particular act alleged as misconduct on
part of jurors occurred, or as to existence of any fact militating against fair trial, they are not permitted to
give evidence, either orally or by affidavit, upon motion for new trial, as to effect such misconduct or
prejudicial act had upon their minds.
19. Criminal Law.
Generally, jurors may testify to any facts showing the existence of an outside influence, but they
cannot give evidence to the effect any such outside influence may have had on their minds in arriving at a
verdict.
20. Criminal Law.
Generally, affidavits or testimony of jurors are admissible when offered by prosecution for purpose of
sustaining the verdict.
21. Criminal Law.
The jurors are competent to rebut allegations of bias and misconduct, but, where act of misconduct is
admitted, it cannot be shown by jurors that accused suffered no prejudice by reason thereof, since under
such circumstance the presumption of prejudice is conclusive.
22. Criminal Law.
Affidavits by jurors that they were not influenced by reading newspaper articles, or by improper
arguments of prosecuting attorney, or by improper evidence or exhibits introduced in the
jury room, or that they did not pay any attention to fact that instruction delivered to
them was marked "refused," cannot be considered.
63 Nev. 118, 121 (1946) State v. McKay
attorney, or by improper evidence or exhibits introduced in the jury room, or that they did not pay any
attention to fact that instruction delivered to them was marked refused, cannot be considered.
23. Criminal Law.
Affidavits of jurors, in which they stated they were not influenced by fact that defendant was shackled
during course of trial, was not competent evidence to show absence of any prejudicial influence upon
their minds as result of shackling of defendant, and admission of such evidence on defendant's motion for
new trial was improper.
24. Criminal Law.
Evidence did not establish that witness to homicide was an accomplice whose testimony was required
to be corroborated in order to sustain murder conviction.
25. Criminal Law.
Where, under admitted evidence clearly establishing guilt of first degree murder, trial court's ruling
denying defendant's motion for new trial would have been same as it was if affidavits of sheriff and jurors
had been eliminated prior to ruling, erroneous admission of the affidavits did not require reversal of
conviction. Comp. Laws, sec. 11266.
Ladell McKay was convicted of murder in the first degree, and he appeals. Affirmed.
George Lohse, of Reno, for Appellant.
OPINION
By the Court, Horsey, J.:
The appellant, Ladell McKay, on the 25th day of January 1945 was convicted in the
Second judicial district court, in and for the county of Washoe, of the crime of murder in the
first degree, for the killing of one Robert Flindt, and the jury before whom he was tried
having failed in their verdict to fix the punishment, the trial court, on the 7th day of
February 1945, pronounced judgment of death upon the appellant.
63 Nev. 118, 122 (1946) State v. McKay
murder in the first degree, for the killing of one Robert Flindt, and the jury before whom he
was tried having failed in their verdict to fix the punishment, the trial court, on the 7th day of
February 1945, pronounced judgment of death upon the appellant. From the said judgment
and from the order of the trial court denying the appellant's motion for a new trial, appellant
has appealed.
The appellant has presented seven assignments of error, which will be quoted hereafter, as
they are considered.
In order to make clear to what extent the evidence should be detailed and considered in
passing upon its sufficiency to justify the verdict and to prove the corpus delicti, it may be
well at the outset to state briefly the respective positions and theories of the state and the
appellant, as we understand them, from the testimony and from the briefs and arguments of
respective counsel.
The state insists that the killing of Robert Flindt, by the appellant, at the time and place
alleged in the information, was committed in the perpetration of the crime of robbery, and
was, therefore, murder in the first degree. To establish such theory the state relies principally
upon the testimony of Kenneth Earl Petsch, the only eyewitness other than the appellant to
the striking, beating and kicking of the deceased, from which it appears that, without
provocation, the appellant assaulted, severely beat and kicked the deceased, dragged him
behind a fence, then kicked him again in the face, and thereupon robbed him by taking his
wallet from his pocket. The state presented also the testimony of Marie Dollen as to a remark
which she claimed was made by appellant to her in the Midway Bar when appellant was
leaving there with Robert Flindt, the deceased, and said Kenneth Earl Petsch, to the effect that
they were going to take the kid (indicating Flindt by nodding toward him), for a walk and
that when he, appellant, returned he would have plenty of money and they would have a hot
time (appellant denying that he said anything of that sort).
63 Nev. 118, 123 (1946) State v. McKay
that sort). The state presented further the testimony of Dr. Lawrence Parsons, the autopsy
surgeon, as to the nature of the injuries upon the body of the deceased and that he died from a
cerebral hemorrhage shortly after the infliction of the injuries. The state presented also the
testimony of Chief of Police Fletcher as to a statement which he testified the appellant made
to him about noon on the day of the beating and death of Robert Flindt, in reply to a question
of the chief as to why he dragged deceased behind the fence. Chief Fletcher said that the
appellant stated to him that he didn't want anyone to see him rob Flindt.
On the other hand, the appellant, who testified as a witness in his own behalf, admitted
that he repeatedly struck and beat the deceased at the time and place alleged, but denied that
he kicked him, and claimed that the deceased, on two occasions in the Midway Bar, and upon
a third occasion immediately before appellant struck deceased, made improper advances of a
sexually perverted nature toward appellant, which made appellant very angry, and that his
striking and beating of the deceased on East Fourth street in Reno, Nevada, near the Wagner
Tank Company, on the early morning of November 26, 1944, was caused solely by such
improper advances and the angry state of mind thereby produced in appellant, and without
any intention to rob the deceased. Appellant testified he told Petsch about Flindt's improper
advances and that he was queer, which Petsch, in his testimony, did not remember. The
appellant testified further he did not remember he made the statement to Chief of Police
Fletcher that the chief testified that he made, in reply to the inquiry of why he dragged
deceased behind the fence, to the effect that he did not want anyone to see him rob Flindt.
The appellant testified that he must have been wrong to make the statement that he took
Flindt's money after he dragged him behind the picket fence, and said: After I took Kelly'
back there, that is when I took his money. Kelly' was standing there. It will be observed
that, contrary to the testimony of "Kelly" Petsch, the appellant claims that, after dragging
Flindt behind the picket fence, he went over to where "Kelly" was, and that he, appellant,
then first formed the intention to rob; that the beating and striking of Flindt had occurred
by reason of the improper advances, and that a considerable interval of time elapsed
between the completion of the striking and beating and the formation of the intent to rob,
and that appellant did not strike, beat or kick the deceased after taking him behind the
picket fence, nor after he formed the intention to rob him; that, in fact, he never kicked
Flindt at any time.
63 Nev. 118, 124 (1946) State v. McKay
to the testimony of Kelly Petsch, the appellant claims that, after dragging Flindt behind the
picket fence, he went over to where Kelly was, and that he, appellant, then first formed the
intention to rob; that the beating and striking of Flindt had occurred by reason of the improper
advances, and that a considerable interval of time elapsed between the completion of the
striking and beating and the formation of the intent to rob, and that appellant did not strike,
beat or kick the deceased after taking him behind the picket fence, nor after he formed the
intention to rob him; that, in fact, he never kicked Flindt at any time.
At the trial, in response to the question, Why did you drag Flindt's body to the back of the
fence? McKay answered: I don't know. I told you it was because I was drinking and I was
mad, and that is all I know.
It is our understanding that appellant's counsel contends, solely upon the basis of the
testimony of appellant, that the striking and beating, and the kicking of the deceased, if he
was kicked, occurred in the heat of passion, upon provocation sufficient to excite an
irresistible passion in the mind of a reasonable person, and that if death resulted, it could not
be murder in the first degree, such killing not being willful, deliberate and premeditated, and
not having been done in the perpetration, or attempt to perpetrate arson, rape, robbery or
burglary; that a considerable period of time elapsed after the last of the physical acts
constituting the killing and the formation of the intention to rob, so that the acts which
produced the death of deceased could not be deemed to have any connection with the
robbery; that if the provocation was not legally adequate to reduce the crime to manslaughter
and yet, if the killing was under the influence of passion and, therefore, without express
malice, and not willful, deliberate and premeditated, it would, at the most, be murder in the
second degree.
In view of the conflict in the evidence upon material matters it is necessary, in order that
we may determine justly as to appellant's first assignment of error, to-wit, "That the verdict is
contrary to the evidence and the law, and that the corpus delicti was not proven beyond a
reasonable doubt," that we determine whether or not there is substantial evidence in the
record in support of the verdict of the jury.
63 Nev. 118, 125 (1946) State v. McKay
That the verdict is contrary to the evidence and the law, and that the corpus delicti was not
proven beyond a reasonable doubt, that we determine whether or not there is substantial
evidence in the record in support of the verdict of the jury. To do so, it is essential that we
review those portions of the evidence that relate materially to the matters concerning which
the evidence is in conflict. And, bearing in mind that appellant's assignment of error V is that
the court erred in denying appellant's motion for a new trial, and particularly bearing in mind
the third ground thereof, that the court's ruling in denying appellant's motion to remove the
handcuffs prevented his having a fair and impartial trial within the meaning of the
constitution, and was prejudicial to him, it is necessary to a proper determination of the
matter, and to a fair understanding of the evidentiary basis for our conclusions, that we
present the evidence herein much more fully than would be essential were the element of
prejudicial influence from the shackling not involved.
Kenneth Earl Petsch, commonly known as Kelly Petsch, testified, in part, substantially
as follows: That his business or occupation was working for the Oregon-Nevada-California,
working on the dock and loading meat; that he lived at the Gallery Hotel in Reno and had
lived in Reno since about the 15th of August 1944, and was steadily employed up until
November 25, 1944; that he was acquainted with Ladell McKay, having first met him at
Kenilworth, Utah, where they worked for a short time at a coal mine near there; that he saw
appellant about two weeks before November 26, 1944, in Reno, Nevada, either at the Palace
or the Bank Club, for a few minutes, and saw him down town for about a minute, just long
enough to speak, on another occasion prior to Saturday night, November 25; that on Saturday
night, November 25, 1944, the witness saw McKay at the Palace or the Bank Club; that
witness was playing lottery and McKay was playing the dice; that witness did considerable
drinking and McKay did some drinking, too; that the witness and "Art" Mann had been
drinking all evening, from the time they got off work until they got separated at the Bank
or Palace Club; that after having several drinks there the witness and McKay had a drink
at the La Fiesta, and from there went to a new place around the Depot Bar, drank there
for quite some time, and upon leaving there went to the Midway, on East Fourth street, in
Reno; that the witness could not remember how he got to the Midway, as he was pretty
drunk, but remembered being there, in fact having intended to go there earlier in the
evening; he could not recall what time in the evening they got there, but imagined it was
about midnight; that he saw people at the Midway he knew, including Bart Kerr, Bob
Flindt and his brother-in-law, Frank Rowe, and his wife, and that the witness knew the
bartender, named "Van"; that Bob Flindt was the first one he recognized; that he had met
Flindt about two weeks before, through Bart Kerr, the butcher; that on Saturday evening,
November the 25th, when they again met at the Midway they had a conversation and Bob
offered to buy the witness a drink, but witness said, "I will buy one"; that "Mack" and Bob
were talking, but the witness did not know what their conversation was, as witness was
talking to another boy, Glenn; that, as far as witness remembered, he had several drinks
at the Midway; that witness could not fix the time when they left the Midway; that
witness left with Bob Flindt and McKay; that witness realized the three of them left; that
as they got to the Gallery, he recognized the sign and said, "I stay here, here is where I
stay"; that witness did not know why the three of them left the Midway, could not
remember whether he was too drunk and they were taking him home; that, as witness
left the Midway Bar, Bob was with him and McKay was with him; that they were walking
on the sidewalk and witness was in the middle and, as near as he could recall, McKay on
the right-hand side and Bob was on the left; that they were walking down the sidewalk
toward town, were going west; that they were on the side of
63 Nev. 118, 126 (1946) State v. McKay
too; that the witness and Art Mann had been drinking all evening, from the time they got
off work until they got separated at the Bank or Palace Club; that after having several drinks
there the witness and McKay had a drink at the La Fiesta, and from there went to a new place
around the Depot Bar, drank there for quite some time, and upon leaving there went to the
Midway, on East Fourth street, in Reno; that the witness could not remember how he got to
the Midway, as he was pretty drunk, but remembered being there, in fact having intended to
go there earlier in the evening; he could not recall what time in the evening they got there, but
imagined it was about midnight; that he saw people at the Midway he knew, including Bart
Kerr, Bob Flindt and his brother-in-law, Frank Rowe, and his wife, and that the witness knew
the bartender, named Van; that Bob Flindt was the first one he recognized; that he had met
Flindt about two weeks before, through Bart Kerr, the butcher; that on Saturday evening,
November the 25th, when they again met at the Midway they had a conversation and Bob
offered to buy the witness a drink, but witness said, I will buy one; that Mack and Bob
were talking, but the witness did not know what their conversation was, as witness was
talking to another boy, Glenn; that, as far as witness remembered, he had several drinks at the
Midway; that witness could not fix the time when they left the Midway; that witness left with
Bob Flindt and McKay; that witness realized the three of them left; that as they got to the
Gallery, he recognized the sign and said, I stay here, here is where I stay; that witness did
not know why the three of them left the Midway, could not remember whether he was too
drunk and they were taking him home; that, as witness left the Midway Bar, Bob was with
him and McKay was with him; that they were walking on the sidewalk and witness was in the
middle and, as near as he could recall, McKay on the right-hand side and Bob was on the left;
that they were walking down the sidewalk toward town, were going west; that they were on
the side of the street the Midway and Gallery are onthe south side of the street; that
witness knew he said, "Here is where I stay," and that they talked among themselves and
said witness was too drunk to go to bed, and that witness recalled they said, "You better
walk around the block," and that they continued on, and that witness did not think he was
too drunk to go to bed, but they insisted that he was; that they continued to walk on the
sidewalk farther west, to the Wagner Tank, not quite in front of the Wagner Tank but
right at the gateway that leads to the Wagner Tank; that there, all of a sudden, things
broke loose, and McKay said, "You s of a b," and he hauled off and hit Bob, and the
witness turned around and stepped in and said, "What are you fighting for?" and witness
stepped in to stop them, and that witness turned around and McKay hit witness right in
the nose and knocked witness down, and that when he went to get up his eyes were
watering and he was wiping the tears out of his eyes with his hand, and that witness got
up with the intention of hitting McKay, and when he got up said to McKay, "What the h
are you kicking him for?
63 Nev. 118, 127 (1946) State v. McKay
they were on the side of the street the Midway and Gallery are onthe south side of the
street; that witness knew he said, Here is where I stay, and that they talked among
themselves and said witness was too drunk to go to bed, and that witness recalled they said,
You better walk around the block, and that they continued on, and that witness did not
think he was too drunk to go to bed, but they insisted that he was; that they continued to walk
on the sidewalk farther west, to the Wagner Tank, not quite in front of the Wagner Tank but
right at the gateway that leads to the Wagner Tank; that there, all of a sudden, things broke
loose, and McKay said, You s of a b, and he hauled off and hit Bob, and the witness
turned around and stepped in and said, What are you fighting for? and witness stepped in to
stop them, and that witness turned around and McKay hit witness right in the nose and
knocked witness down, and that when he went to get up his eyes were watering and he was
wiping the tears out of his eyes with his hand, and that witness got up with the intention of
hitting McKay, and when he got up said to McKay, What the h are you kicking him for?
You will kill him, and McKay stuck his hand in his pocket (indicating) and told witness to
stand back or he would get the same thing, and he told witness, Ct, I didn't hurt him and
you are going to go with me and you follow us, and he said, Don't get too close, and he
drug the boy behind the picket fence. That witness noticed, when McKay picked Bob up, Bob
began to breathe heavier, and then they got over to the fence and McKay laid him down and
he kicked him on the side of the face, and witness said, Js Ct, Mack,' you will kill that
man, and McKay said, Ct, don't be a G d sissyI won't hurt him, and witness said,
I am going to take him to a hospital, and McKay said, No, you are not. You are going with
me, and he made an expression to go to Sacramento; then he said, That is a swell place to
hole up. Just before that, while Bob was still down and witness told McKay to quit kicking
him, McKay took something from Bob's pocket and McKay kept his right hand in his
pocket and took his hand like that {indicating) and took something, and witness did not
know what it was; that witness noticed blood was getting all over witness' shirt, and took
his handkerchief and wiped it off, and McKay said "Have you another shirt?", and witness
said, "Yes," and McKay said, "By G, we will go up and get it and get a clean shirt, then."
63 Nev. 118, 128 (1946) State v. McKay
him, McKay took something from Bob's pocket and McKay kept his right hand in his pocket
and took his hand like that (indicating) and took something, and witness did not know what it
was; that witness noticed blood was getting all over witness' shirt, and took his handkerchief
and wiped it off, and McKay said Have you another shirt?, and witness said, Yes, and
McKay said, By G, we will go up and get it and get a clean shirt, then. Witness further
testified as follows:
Q. After you were hit, did you see McKay strike Bob with his fist? A. As I said, I was
slightly dazed when I went down, and I know he hit him once and he must have hit him four
or five times, and Bob lay in the middle of the sidewalkhe was just helpless when he was
being kicked.
Q. Did you get up off the ground shortly after Bob was knocked down? A. Yes, I must
have. I got up as soon as I could and I wiped the tears from my eyes.
Q. Were you bleeding from the nose at that time? A. I was so excited I didn't notice it at
that time but no doubt that I was.
Q. How did McKay handle Bob when he was dragging him from where he was to the
back of the fence? A. He put his hands below his pits here (indicating) and drug him with his
face up and left his feet drag.
Q. Then you followed along? A. Yes. I didn't want to get shot and I thought he would
shoot me too, when he done Bob the way he did he would never mind shooting me.
Q. You followed while he was dragging Bob back of the fence, you followed a little
behind? A. Yes, I done as he told me.
Q. And you saw him go through Bob's pockets? A. With his left hand. He used his left
hand.
Q. What was the expression that McKay used to you? A. He said, You are going with
me, big boy. We will go to Sacramento and hole up.'
Q. And hole up? A. Yes.
63 Nev. 118, 129 (1946) State v. McKay
The witness further testified to the effect that witness and McKay went to witness' room at
the Gallery Hotel, witness changed his shirt, and then they went back to the Midway; that
witness thought that when he got to the Midway he would then expose what happened, but
there were women in there and he was afraid if he did it would get somebody all shot up and
himself too, and he was thinking of getting some way to get Bob to the hospital and after he
got in the Midway he kind of changed his mind, he was afraid of getting somebody else all
shot up, that he believed McKay had a gun; that they were at the Midway about half an hour,
called a cab, started out for the Cedars, but it was dark and closed up; then they came back to
town to the Tropics, which was just closing; then they went to the Town House; that witness
ordered a drink and sat at the bar and Mack went to the dressing room; that the witness then
had the bartender call Irvin Blanchard and tell him that Kelly was in trouble and to come
down, and soon Irvin came; that when Irvin came witness winked at him and he came and sat
down, and witness introduced Mack to Irvin and soon they went to breakfast at the
Monarch Cafe; that while there Roy Murray came, and Irvin, Mack, Murray and the witness
had breakfast together, and then witness and McKay got in the back seat of Irvin Blanchard's
car and Irvin and Murray were in the front seat, and they drove down to 113 Elm street, where
Blanchard lived, and witness went with Blanchard into his house and told him what had
happened, and then Blanchard went out to the car and drove Mack and Murray down the
street; that witness remained in Irvin's house; that witness' object in getting Blanchard was so
witness could get away from McKay and to get Bob to the hospital; that after taking McKay
down the street, Murray and Blanchard came back to 113 Elm street, and Murray, Blanchard
and the witness then went, in Blanchard's car, from the latter's house down to East Fourth
street to the vicinity of the Wagner Tank Company. That Roy Murray got out, that witness
told him right where the body was lying, and he went over and came back and said, "He is
dead," and that they went to the police station and reported it; witness did not recall with
whom he went back to where the body was, but thought it was a detective; that it was
one of the Reno officers; that the witness was put under arrest; that McKay gave witness
no money, that witness did not ask him for any money, and that witness had no plan with
McKay to rob Flindt; that no such thing ever entered witness' mind.
63 Nev. 118, 130 (1946) State v. McKay
him right where the body was lying, and he went over and came back and said, He is dead,
and that they went to the police station and reported it; witness did not recall with whom he
went back to where the body was, but thought it was a detective; that it was one of the Reno
officers; that the witness was put under arrest; that McKay gave witness no money, that
witness did not ask him for any money, and that witness had no plan with McKay to rob
Flindt; that no such thing ever entered witness' mind.
The testimony of Bart Kerr, a witness for the state, was not important as to the
controverted matters. He testified that he was present in the Midway Bar on Saturday night,
November 25, or the early morning of the 26th, and saw Robert Flindt and Kenneth Petsch
there. His testimony is in conformity to that of Petsch in regard to the incidents that happened
there at that time. The witness testified that he knew Bob Flindt quite a while during his
lifetime; that he didn't see Flindt make any improper advances to McKay during that evening
at the Midway, and in all his associations with Bob Flindt he had never seen him make any
improper advances to any other man or woman.
Robert Wirig testified that he was the taxi driver called to the Midway Bar on Sunday
morning, November 26, and that there two men, a large fellow whom he identified as
Kenneth Petsch, and a small man whom he identified as Ladell McKay, got in the taxi and
that he drove them to the Cedars, and finding it closed returned to Reno, went to the Tropics,
and, as it was closed, took them to the Town House, which they entered.
W.H. Brooks testified that he was the bartender at the Town House on the morning of
November 26, 1944; that at about five o'clock that morning a couple of fellows came in and
sat down at the lower end of the bar and ordered a couple of highballs; that the smaller one of
the two went to the men's lavatory and held the door open while he was in there, and while he
was there the big fellow asked witness if witness would like to make three dollars, and the
witness said he would, and the big fellow said, "I want you to call a man by the name of
Blanchard, Irvin Blanchard, and tell him 'Kelly' is down here, but not to let the little man
know you are doing the calling"; that the witness went back to the other end of the bar
and called Blanchard and repeated the message that Petsch had given him; that in a few
minutes Blanchard came, and sat down with the other two men and they had a drink and
left soon thereafter; that the big man seemed extremely nervous about something and
"he acted like there was something about the little fellowhe didn't want him to know
about the telephone call, as though he were afraid of the man or something of the sort."
63 Nev. 118, 131 (1946) State v. McKay
big fellow asked witness if witness would like to make three dollars, and the witness said he
would, and the big fellow said, I want you to call a man by the name of Blanchard, Irvin
Blanchard, and tell him Kelly' is down here, but not to let the little man know you are doing
the calling; that the witness went back to the other end of the bar and called Blanchard and
repeated the message that Petsch had given him; that in a few minutes Blanchard came, and
sat down with the other two men and they had a drink and left soon thereafter; that the big
man seemed extremely nervous about something and he acted like there was something
about the little fellowhe didn't want him to know about the telephone call, as though he
were afraid of the man or something of the sort.
The testimony of Irvin Blanchard and of Roy Murray related to matters that occurred
subsequent to the arrival of Petsch and McKay at the Town House. They each testified to
going to breakfast with Petsch and McKay, then going in Blanchard's car to Blanchard's
home, leaving Petsch there for awhile, taking McKay down town and letting him off where he
indicated, as he said he was going to his hotel, then returning to Blanchard's house and,
together with Petsch, driving to the Wagner Tank premises, where, in following Petsch's
directions, they found the dead body of Flindt, and thereupon Petsch, Blanchard and Murray
driving to the police station and reporting the matter.
Marie Dollen, a witness for the state, testified, in substance, that she arrived at the Midway
Bar about 10:30 Saturday evening, November 25, 1944; that she was there quite a period of
time; that she saw Mr. and Mrs. Rowe and Bart (Kerr), also Bob Flindt, there; that she also
saw Kenneth Petsch, commonly called Kelly, and Ladell McKay there; that she was sitting
at the bar, near the telephone, and Kelly came up to use the telephone, and her drink was
sitting in front of her and he (Kelly) knocked it over in her lap and he didn't excuse himself
and just left; that Bob Flindt was there, at the other end of the bar; that she had no
conversation with "Kelly" until they left, a while later; that they were standing at the
other end of the bar and Bob {Flindt) and "this Kelly" and McKay got up and stood at the
door; that "Kelly" made some remark to her, and she didn't catch all the remark, and she
went to the door and asked what he said; that he and Bob were standing on the sidewalk
and McKay came back, and that McKay said, "Never mind what he said.
63 Nev. 118, 132 (1946) State v. McKay
other end of the bar; that she had no conversation with Kelly until they left, a while later;
that they were standing at the other end of the bar and Bob (Flindt) and this Kelly and
McKay got up and stood at the door; that Kelly made some remark to her, and she didn't
catch all the remark, and she went to the door and asked what he said; that he and Bob were
standing on the sidewalk and McKay came back, and that McKay said, Never mind what he
said. We are going to take this kid' for a walk and when I come back we will have plenty of
money and we will have a hot' time; that the witness saw Kelly and McKay there after that
that evening; that she had called a cab to leave, and shortly before she left they came back to
the Midway Bar, but Robert Flindt was not with them. Upon cross-examination Mrs. Dollen
testified, in part, as follows:
I just went to the door and asked what he said, and McKay came back upon the step, and
Bob and Kelly' were standing on the sidewalk, and he said, Never mind, Honey, what he
said,' and he said, We are going to take this kid for a walk' and he nodded toward Bob, and
when we come back I will have plenty of money and we will have a hot time.'
The witness was then asked if those were his exact words, and she answered, Yes.
Gene Cowan, a police officer of Reno, testified for the state, in substance, that Roy
Murray, Irvin Blanchard and Kenneth Petsch, whom he knew as Kelly, a truck driver, came
into the police station the morning of November 26, 1944, and reported a man as being dead
down by the Wagner Tank, and the witness immediately went there, followed by police car
No. 2, in which they brought Murray, Blanchard and Petsch, and that they found the body of
Robert Flindt where it had been dragged behind the fence; that the Wagner Tank Company is
located on East Fourth street, about the five hundred block, next to the Sanford Tractor and
Equipment Company; that the witness examined the body, found the man was dead, and
called the station to have a coroner and undertaker called; that Robert Ebeling, Officer
Nicora and the two gentlemen who discovered the body were with the witness at that
time; that Kenneth Petsch said he was present when the affair took place and he
described the man involved in the fight, that he knew him as "Mack" and he thought he
stayed at the Richelieu Hotel; that the witness, Gene Cowan, left officer Ebeling there
with the body until the arrival of the coroner, and, together with officer Nicora, witness
went to the Richelieu Hotel, at Fourth and Evans streets, aroused the landlady, found
McKay in bed in room 2S, and arrested him, and that he was taken to the station and
booked; that McKay at that time did not want to talk and did not ask witness why he was
arrested.
63 Nev. 118, 133 (1946) State v. McKay
a coroner and undertaker called; that Robert Ebeling, Officer Nicora and the two gentlemen
who discovered the body were with the witness at that time; that Kenneth Petsch said he was
present when the affair took place and he described the man involved in the fight, that he
knew him as Mack and he thought he stayed at the Richelieu Hotel; that the witness, Gene
Cowan, left officer Ebeling there with the body until the arrival of the coroner, and, together
with officer Nicora, witness went to the Richelieu Hotel, at Fourth and Evans streets, aroused
the landlady, found McKay in bed in room 28, and arrested him, and that he was taken to the
station and booked; that McKay at that time did not want to talk and did not ask witness why
he was arrested. The witness being then shown state's exhibit A for identification, stated it
was a bill fold that was picked up at the northeast corner of the Sanford Tractor building,
adjoining the Wagner Tank Company; that it was in the gutter and the papers were scattered
on the ground and the bill fold was empty when it was picked up, that there was no money in
it whatever; that when the appellant was booked at the police station, on searching him one
hundred and thirty-one dollars in currency was found on him; that the appellant refused to
make a statement at the time he was booked.
Robert William Ebeling, a witness for the state, testified, in substance, to practically the
same facts as the witness Cowan, and in addition thereto described to some extent the
condition of the body of Flindt at the time that he saw the body lying on the south side of a
board fence running parallel with Fourth street; that the body was lying parallel to the fence,
on its back, the head was toward the east and the feet were set apart approximately a foot or
more, that the face was turned to the north, the mouth was open; that witness tried to
recognize the man but could not at that time; that his face was pretty badly bruised, there was
a huge bump above the lower jaw, about the cheek, down below the ear, on the left side, and
the jaw was pushed in in such a manner, his mouth being open, that the teeth would not
close, that is, if he were able to close his mouth his teeth would not meet; that the
witness had met Robert Flindt several times in his lifetime, was acquainted with Flindt's
brother, and had seen him about the garage on several occasions; that the witness was
unable to recognize him at the time he saw his body that morning.
63 Nev. 118, 134 (1946) State v. McKay
a manner, his mouth being open, that the teeth would not close, that is, if he were able to
close his mouth his teeth would not meet; that the witness had met Robert Flindt several
times in his lifetime, was acquainted with Flindt's brother, and had seen him about the garage
on several occasions; that the witness was unable to recognize him at the time he saw his
body that morning. The witness testified further to finding the wallet about fifteen steps west
of the telephone pole, along the gutter, picking it up, and that some papers were in it and
other papers immediately beside it on the sidewalk, and then officer Cowan returned and the
witness turned the wallet over to him; that the witness didn't notice any money in the wallet;
that the witness, on the way to the station, asked appellant if he knew a fellow by the name of
McKay and he said, I never heard of the guy; that the witness asked him a couple of other
questions and he refused to answer, and witness did not ask him any more.
Harry D. Fletcher, a witness for the state testified, substantially, that he was chief of police
of Reno, Nevada, on November 26, 1944, and on that morning, at his office, he had a
conversation with the appellant; that Mr. Jepson, Miss Brown, Captain Walter Cummings and
the witness were present; that the appellant was apprised of his rights, no promises were
made to him, that he was told that anything he might say might be used against him, and that
he was advised as to the seriousness of the matter concerning which they were about to talk to
him, and that anything he might say would be a voluntary statement on his part. The witness
then testified what McKay stated to him. Omitting that portion relating to matters occurring
before Petsch and McKay arrived at the Midway Bar, the witness narrated the statement of
McKay to him, as follows: That about ten o'clock they went to the Midway Bar and started to
drink at the Midway Bar, and there they met Bob Flindt. Bob Flindt was with some other
people at the time.
63 Nev. 118, 135 (1946) State v. McKay
people at the time. It seems that Kelly Petsch had known Bob Flindt a week previous to this
meeting at the Midway Bar. And that they had one or two drinks with Bob Flindt at the
Midway and then Kelly Petsch started getting pretty drunk and it was decided to take him
out and give him some air to sober him up; that appellant and Flindt took Kelly out and
they started walking west on East Fourth street, and when opposite the Wagner Tank
Company appellant struck Flindt, knocking him to the sidewalk; that Petsch tried to interfere
and that appellant knocked Petsch down. That after knocking Flindt down, appellant dragged
the body behind a picket fence about sixty feet from the sidewalk and went through his
pockets and took what money he had; that appellant then stated to the witness, Chief Fletcher,
that he and Kelly went to the Gallery Hotel, to Petsch's room, and cleaned Petsch up.
At that point the statement related to details of the happenings after leaving Petsch's room,
which are immaterial and will be omitted.
The witness Fletcher further testified that in said statement appellant said he had struck
Flindt four or five times, as the witness recalled; and then, without objection on the part of
the defense, the witness was asked by the district attorney, At that time and place did he state
that he had been in trouble before?, and the witness answered, Yes, he did. The witness
was then asked if he recalled what appellant told him at that time, and the witness answered,
Yes, I do, and was then asked to give it as near as he could remember, and the witness
answered:
He stated that he had been in trouble in the State of Utah for stealing cars and burglary,
and that he later joined the army, after getting out of this trouble, and had deserted while in
the army, and later was arrested and escaped, and then he had a twenty-year sentence hanging
over him; he stated he had escaped from the Lemoore Army Base in California; he said he
went to Fresno and from Fresno to San Francisco, and from San Francisco to Reno; that he
had escaped from Lemoore October 29, 1944."
63 Nev. 118, 136 (1946) State v. McKay
Fresno and from Fresno to San Francisco, and from San Francisco to Reno; that he had
escaped from Lemoore October 29, 1944.
Asked if McKay made any statement as to why he attacked Flindt, the witness stated that
he (McKay) said that Flindt had made improper advances toward him and that it had made
him mad; that he referred to Flindt as a queer; that when asked why he took the money off
of Flindt, McKay said he wanted it to gamble, to pay his room rent and eat. When asked why
he dragged the body behind the picket fence, he said he didn't want anyone to see him rob
Flindt.
The witness then testified:
I remember that quite clearly. I also asked McKay, when he made the statement about
Flindt, whether he could corroborate it or not, telling him at the time that was one of the
oldest criminal tricks in the book in order to supply a motive, and he answered, Ask Petsch,
he knows,' which I later did, and Petsch denied it; at that time McKay stated that he alone
dragged the body behind the fence.
Dr. Lawrence Parsons, a Reno physician, testified that he performed a post mortem
examination, on November 27, 1944, upon the body of Robert Flindt; that such post mortem
examination was performed at the mortuary of O'Brien-Rogers, in Reno, at the instance and
request of Judge Harry Dunseath, who was the coroner of the county; that his findings as the
result of the examination were as follows:
The body, embalmed, is that of a well nourished and developed white male, apparently of
the stated age, 38 years. A large abrasion is present on the vertex of the scalp. The pupils are
equal, regular, 6 mm. in diameter, and the sclerae are white. Numerous contusions and
abrasions are found over the face. The right side of the face particularly is somewhat swollen
in appearance, and an abrasion at the point of the chin is also slightly lacerated. There is
extensive contusion of the scalp and the temporal muscles.
63 Nev. 118, 137 (1946) State v. McKay
the temporal muscles. The brain shows diffuse subarachnoid hemorrhage, extensive subdural
hemorrhage at its base, and all the ventricles are filled with fresh blood clot. The major
branches of the circle Willis are normal. There is no skull fracture. Examination of the neck
organs shows considerable contusion of the muscles covering the thyroid gland and outer
surface of the larynx. The organs of the chest and abdomen are normal. The urinary bladder
contains about 200 cc. of normal appearing urine.
The Witness: Do you wish me to state my opinion of the immediate cause of death?
Mr. Jepson: Yes.
The Witness: Immediate cause of death: Cerebral hemorrhage due to contusions of head.'
Mr. Jepson: Will you now, Doctor, explain what is meant by the word contusions'? A.
We mean a bruise. * * *
Q. So, from your general examination of the body, it looked like it had been badly beaten,
is that correct? A. Well, there were many bruises and abrasions which were undoubtedly the
result of a number of successive applications of external violence.
On cross-examination the witness again stated that he found a large abrasion on the top of
the head, that is, the so-called vertex of the skull, and upon being then asked by Mr. Lohse,
appellant's attorney, whether, specifically, that was directly on the top of the head, or to the
back or right or left, the witness answered that by vertex we mean, and it is my intention to
indicate, that it is directly on the top of the head. * * *
Ladell McKay testified as a witness on his own behalf substantially as follows:
That Ladell McKay is his true name; that he was in Reno, Washoe County, Nevada, on the
25th day of November 1944; that he was residing then at the Lincoln Hotel on East Fourth
street; that he came to Reno on the 19th or 20th of November; that on November 25, 1944,
the witness was not up until about four o'clock; that he slept late that day; that when he
got up he went to a show, was in the show possibly two and a half or three hours; that
after he left the show he went to a cafe and ate, and after that went to the Bank Club;
that he had about twenty-five dollars with him, so he started to gamble; that he was
playing dice and must have won about ten dollars there, and soon he met "Kelly" Petsch;
that he met Petsch around nine o'clock in the evening in the Bank Club; that Petsch was
alone; that they drank for a while, beer and whiskey, at the bar at the club; that they
continued to gamble between drinks; that the witness and Petsch were together drinking
in there about an hour, then went to Harold's Club and then some of the bars opposite the
depot, and drank there; that Petsch told the witness that he would like to take the
witness up to the Midway Bar, because he knew some people around there, some girls;
that witness had never been to the Midway Bar and he did not know anyone who
frequented that place, other than Petsch, before he went there, that he did not suggest
going there, that Petsch suggested it to him; that witness imagined they got to the
Midway about midnight; that the witness was introduced to several people in there and
that Flindt was among the ones to whom he was introduced.
63 Nev. 118, 138 (1946) State v. McKay
1944, the witness was not up until about four o'clock; that he slept late that day; that when he
got up he went to a show, was in the show possibly two and a half or three hours; that after he
left the show he went to a cafe and ate, and after that went to the Bank Club; that he had
about twenty-five dollars with him, so he started to gamble; that he was playing dice and must
have won about ten dollars there, and soon he met Kelly Petsch; that he met Petsch around
nine o'clock in the evening in the Bank Club; that Petsch was alone; that they drank for a
while, beer and whiskey, at the bar at the club; that they continued to gamble between drinks;
that the witness and Petsch were together drinking in there about an hour, then went to
Harold's Club and then some of the bars opposite the depot, and drank there; that Petsch told
the witness that he would like to take the witness up to the Midway Bar, because he knew
some people around there, some girls; that witness had never been to the Midway Bar and he
did not know anyone who frequented that place, other than Petsch, before he went there, that
he did not suggest going there, that Petsch suggested it to him; that witness imagined they got
to the Midway about midnight; that the witness was introduced to several people in there and
that Flindt was among the ones to whom he was introduced. The witness was then asked
further questions by Mr. Lohse, his attorney, such questions and answers being as follows:
Q. Did you visit with him at all after you met him? A. I just had a drink with him, I
believe at the bar there.
Q. What did you drink? A. I drank the same as him, beer.
Q. Did you have any conversation with him? A. Not very much.
Q. Just a casual conversation? A. Yes.
Q. Do you remember any other people that you met at the bar? A. Not very well. I just
remember some of them, what they looked like. I don't recall any of their names or anything.
Q. Then what happened? A. After I was there for a while I went back to the rest room,
and I was coming out of there and this was the first time that Flindt made an improper
pass at me.
63 Nev. 118, 139 (1946) State v. McKay
while I went back to the rest room, and I was coming out of there and this was the first time
that Flindt made an improper pass at me.
Q. You said he did make an improper pass at you? A. Yes.
Q. Where was that, again? A. Just coming out of the rest room in the back of the place.
Q. Where was the rest room in reference to the bar? A. At the back end of the building.
Q. Was there a partition between the bar and the rest room? A. Yes, and there is a kind of
a doorway, a partition.
You said you had been in the rest room? A. Yes.
Q. And on leaving, Mr. Flindt did make an improper advance toward you? A. Yes.
Q. Did you say anything to him at that time? A. No, I just threw it off and went back out
to the bar and I was talking to some girl there when Flindt came back and sat beside me at the
bar.
Q. Then what happened? A. I don't know. We got started to talking, then, againand
there is where he asked me if I had a room, and he told me he was a pervert then, and I told
him I didn't go for that kind of stuff and to lay off of me.
Q. Then what took place? A. That is all the conversation I had with him.
Q. Did you and Petsch have drinks after that? A. It was shortly after that I told Petsch
about this Flindt, about what he was trying to do.
Q. Was Petsch slightly under the influence of liquor at that time? A. Yes; he was very
drunk, and I went back to the bar, and Kelly' was staggering, and I went over and asked if he
wanted to be taken out, and he said he was getting kind of sick and some fresh air might do
him some good.
The witness further testified that he had about fifty-five dollars when he left the Bank
Club; that he started with twenty-five dollars and won about thirty dollars all together; that
Petsch was awful drunk at the Midway and making a nuisance of himself and that witness
thought it would be best to take him out, and asked him if he wanted to go out; that
Petsch was staggering and bumping people; the witness "never seen him have any
arguments with anyone"; that then they started to leave the building, that "Kelly" was so
big, "you know how big he is, and when he was staggering he took me too, and this Flindt
came over and asked me if I wanted him to help me take 'Kelly' out, and I said, 'Yes.'"
63 Nev. 118, 140 (1946) State v. McKay
and making a nuisance of himself and that witness thought it would be best to take him out,
and asked him if he wanted to go out; that Petsch was staggering and bumping people; the
witness never seen him have any arguments with anyone; that then they started to leave the
building, that Kelly was so big, you know how big he is, and when he was staggering he
took me too, and this Flindt came over and asked me if I wanted him to help me take Kelly'
out, and I said, Yes.'
Q. Did anyone say anything to you as you were leaving? A. I remember this. I apologized
to some woman for Kelly,' because when he is drunk he is very insulting toward women, and
I already apologized to some woman at the Bank Club, and it happened again at the Midway.
Q. Do you remember whether the woman you just made reference to was the same
woman who was identified as Mrs. Dollen and testified here yesterday? A. That don't look
like it. It looked like a much older woman.
Q. Which woman do you mean was older? A. The woman I apologized to looked like a
much older woman.
Q. Did the woman to whom you apologized on behalf of Petsch come over to the
doorway and come to the top of the steps? A. Yes, that is the way that happened.
Q. What was the full extent of your conversation? A. I don't know. It seems Kelly' had
sworn at her or something and I just told herI apologized for Kelly', I told her he was
drunk.
Q. Did you tell her, Never mind, I will be back later with plenty of money and we will
have a hot time'? A. No, I never said anything of the sort.
Q. Are you positive you made no such statement? A. I am positive.
Q. Then what took place? A. We just started down the sidewalk.
Q. What was the relative position of the three of you? A. We were coming this way, west,
and I was on the left side of Petsch and he was in the middle and Flindt was on the righthand
side.
63 Nev. 118, 141 (1946) State v. McKay
Q. Please tell us what happened. A. We got out and walked a little and Kelly' said the
fresh air had made him feel a little better.
Q. When did he say that? A. I don't know. After we had gone half a block, maybe not that
far.
Q. Then what, if anything, was said? A. Then Flindt said, Maybe we better keep him
walking and walk him around that block.'
Q. Did Mr. Flindt make that statement? A. He did.
Q. Are you positive Mr. Flindt did make that statement? A. Yes.
Q. It was his suggestion? A. Yes.
Q. Then what happened? A. We were walking along to Wagner's and that was the third
time he made that pass at me, and I called him a name and hit him.
Q. Did he resist your blow? A. After I hit him that first time Kelly' stepped in between
and I guess it was me that hit Kelly,' but I don't think I hit him on purpose, it was just when
we were in the road.
Q. Kelly' stepped up between you and Flindt, and did he receive a blow? A. He did.
Q. Did you or not strike Kelly' purposely? A. No, not on purpose, it was just he was in
the road.
Q. Did Kelly' make any apparent attempt to separate you and Mr. Flindt? A. No.
Q. Then tell what happened. A. Then, after Kelly' was knocked down, me and Flindt just
kept fighting until I knocked him down.
Q. How large a man was this Flindt? A. About the same size I am.
Q. About the same weight? A. I don't know.
Q. Then what took place? A. I have not any definite reason why I picked him up and took
him behind that fence.
Q. You say you continued to fight with himdid he fall down. A. Yes, I knocked him
down then.
Q. Was he stretched out on the sidewalk? A. Yes.
Q. In what position? A. He was facing east.
63 Nev. 118, 142 (1946) State v. McKay
Q. Was he on his back or side? A. On his back.
Q. While he was down did you kick him? A. No I never kicked him at all.
Q. Are you positive you did not use your feet? A. Yes, I am awful positive that I never.
Q. When he was lying on the sidewalk did Mr. Petsch appear and tell you you should stop
fighting with Flindt? A. No, the way it was after I had knocked this Flindt down I took him
behind the fence.
Q. Did Kelly' say anything before that time to you? A. No.
Q. Is the coat you are now wearing the coat you wore the night this altercation took
place? A. Yes.
Q. Did you carry a gun in your right or left hand pocket that night? A. I never carried a
gun in my left or right hand pocket that night.
Q. Did you put your hand in either pocket after Mr. Flindt was laying on the sidewalk and
tell Kelly' Petsch to get away or get out, it was none of his business? A. No, I did not.
Q. You positively didn't do that? A. No, I never.
Q. Was Mr. Petsch still on the curb or on the sidewalk when you were fighting with
Mr.or rather after your fight with Flindt was Flindt lying on the sidewalk? A. Yes.
Q. Then what happened? A. Then I took and drug Flindt behind this fence.
Q. Did Petsch come in at that time and offer any resistance and ask you to stop or do
anything to deter you? A. No.
Q. You heard Petsch testify that he got up from the sidewalk after you had allegedly
knocked him down and had told you to stop kicking the deceased. Is that true? A. No. The
way it was, after I came out from behind the fence I came out and helped Kelly' to his feet.
Q. Had he been sitting or lying on the curb all the time from the time he went down? A.
When I came up he was sitting up.
Q. Then what happened? A. When I came from behind the fence? "Q.
63 Nev. 118, 143 (1946) State v. McKay
Q. Between the time that Flindt first went down on the sidewalk, Mr. Petsch had not
come to you and said or done anything whatever? A. No, I don't believe he could have got up
on his feet himself.
Q. Are you positive that he did not? A. Yes I am positive.
Q. You said you carried Mr. Flindt from the sidewalk. A. Yes.
Q. Will you please tell the jury how you did that? A. I picked him up underneath the arm
pits.
Q. With both hands? A. Yes.
Q. How great a distance did you carry him? A. It must have been fifty feet or more,
somewhere around there.
Q. Then what did you do? A. I went back out and helped this Kelly' to his feet, and he
asked me where Flindt was and I took him behind the fence and showed where he was.
Q. Mr. McKay do you deny that you took Mr. Flindt's wallet from him? A. No, I don't
deny it.
Q. When did you take it? A. It was then, when I took Kelly' Petschyou see Kelly'
thought I was going to hit Flindt again.
Q. When you went back to where Flindt was lying was that when you took the wallet? A.
Yes.
Q. You say Kelly' thought you were going to hit Flindt again? A. Yes. And that was
when I went through his one pocket book and two front pockets.
Q. Were you extremely angry when you first struck Mr. Flindt? A. Yes, I was, I was very
mad all the time.
Q. Did you determine to take Flindt's wallet before you struck the first blow? A. No. As I
told you, I hit him for making the advances to me.
Q. When, after the altercation, did you finally determine to take his wallet from him? A.
That was when I took Kelly' behind the fence and showed him where he was.
Q. When you went back the second time? A. Yes.
Q. Are you positive that is the truth? A. Yes, I am positive.
63 Nev. 118, 144 (1946) State v. McKay
Q. As a matter of fact, you didn't have any intention to rob Mr. Flindt prior to the
altercation or during the altercation? A. No, I never even thought about that.
Q. That thought occurred to you after you took Petsch back to where Flindt was? A. Yes.
Q. Did Petsch say anything to you about Mr. Flindt's condition? A. Mr. Flindt was laying
there and he was breathing pretty heavily and Kelly' said he thought he was knocked out and
we ought to get a doctor for him.
Q. What did you say? A. I told him I thought he would be all right.
Q. How much had you to drink during the course of that evening, Mr. McKay? A. I don't
know exactly how much but it was quite a bit.
Q. Were you drunk? A. Not to where I would stagger.
Q. Were you drunk to the point where you could not remember what happened to you or
what happened at all? A. No.
Q. Would you say you had your full sensibilities? A. Most of them, yes.
Q. After you removed Mr. Flindt's wallet then what happened? A. I put it in my righthand
coat pocket.
Q. Then what did you do? A. Me and Kelly' came out. After Kelly' and I came out from
behind the fence I took the wallet again and took the money out of it and put it in my pocket
and threw the wallet to the side.
Q. Did you order Mr. Petsch to accompany you? A. No.
Q. Did you put your right hand in your righthand coat pocket so that he gained the
impression you had a gun with you, and did you tell him that you would take him to
Sacramento and lay low or hide out? A. No. I put my wallet in my coat pocket.
Q. Is that the only time you put your hand in your righthand coat pocket? A. Yes, when I
put it in there and took it out again.
Q. Then what took place? A. We were walking toward 'Kelly's' apartment and we went
up to his place and I helped him upstairs and we went to his room, and he had some blood
on his shirt and coat and shoes, and we went in the bathroom and I brushed him off and
he changed shirts and washed and shined his shoes up and we went back to the Midway
Bar."
63 Nev. 118, 145 (1946) State v. McKay
toward Kelly's' apartment and we went up to his place and I helped him upstairs and we went
to his room, and he had some blood on his shirt and coat and shoes, and we went in the
bathroom and I brushed him off and he changed shirts and washed and shined his shoes up
and we went back to the Midway Bar.
The witness further testified on direct examination, relating what transpired after the
witness and Petsch left the scene of the crime, and such testimony was, in all important
particulars, not different from the testimony of Petsch and the other witnesses for the state.
There were two other matters referred to which, perhaps, should be here included. Appellant
was asked by Mr. Lohse, Did Kelly' Petsch say anything to you during those hours
indicating that he was apprehensive over the condition of Flindt? and he answered, Well,
he seemed kind of nervous over it, I know that, and at another point the following occurred:
Q. Was it your intention when you became engaged in the altercation which resulted in
Robert Flindt's death to do him fatal bodily injury? A. No.
Q. And again I ask you, did you have in your mind a design or scheme to rob Robert
Flindt? A. No I did not.
Q. Before the fight ensued, or up to the time you took Petsch behind the fence and
showed him Mr. Flindt, did you have any intention of taking Flindt's wallet? A. That was the
first time I thought of it.
The witness McKay, interrogated on cross-examination by Mr. Jepson, testified, in part,
that he had two hundred and fifty dollars when he came to Reno; that he got that from a
friend he met while he was in the army, but he did not know how much he actually had when
he came to Reno; that he bought his bus ticket and some clothes out of that; that after he was
in Reno he spent his time gambling and drinking mostlydid not do any work at all; that he
almost always would lose, gambling; that on November 25 he won about ten dollars at the
Bank Club, had about thirty-five dollars when he left there, did some more gambling at
Harold's Club, won twenty dollars there; that made him have fifty-five dollars; that, after
visiting with Petsch at various clubs and saloons mentioned, the witness had a little more
than fifty dollars when he arrived at the Midway; that he paid for the taxi fare to the
Midway and "Kelly" went with him; that they arrived there about midnight; that he was
introduced to Bob Flindt at the Midway by "Kelly" and had one beer with Flindt; did not
see "Bob" drinking anything other than beer that evening; went back to the rest room
once, nobody went with him; that "Bob" Flindt made the improper pass just when he
{McKay) came out the door of the rest room; that witness was not in the rest room with
Flindt.
63 Nev. 118, 146 (1946) State v. McKay
dollars there; that made him have fifty-five dollars; that, after visiting with Petsch at various
clubs and saloons mentioned, the witness had a little more than fifty dollars when he arrived
at the Midway; that he paid for the taxi fare to the Midway and Kelly went with him; that
they arrived there about midnight; that he was introduced to Bob Flindt at the Midway by
Kelly and had one beer with Flindt; did not see Bob drinking anything other than beer
that evening; went back to the rest room once, nobody went with him; that Bob Flindt made
the improper pass just when he (McKay) came out the door of the rest room; that witness was
not in the rest room with Flindt. Asked in what way, just what Flindt did when he made an
improper pass at him, the witness said, He was attempting to fool with my privates, and
when asked, How? witness said, with his hands; that Flindt never said anything and that
witness just shrugged him off and went out to the bar; that it was not in the rest room Flindt
told witness he was a pervert, but at the barwhen he came back to the bar; that he was
about five or six feet out from the bar, and that he told witness he was a queer and asked
witness if he had a room somewhere where they could go; that they were then at the bar and
just the two of them were having a drink at that time; that the witness had known Flindt just
the short time while they were there; that witness answered, when Flindt told him that, that
witness never went for that kind of stuff and to lay off of him, and the witness quit talking to
him, that the witness didn't talk to him any more that evening, only he asked witness if
witness wanted him to help walk Kelly and witness said, Yes, if he wanted to he could;
when Kelly was staggering he would take witness with him and witness said to Bob,
Yes, If you want to help me, O. K. Asked if he was not afraid Bob might make improper
advances to him then, the witness answered, No I was not. Asked what happened at the
Wagner Tank premises, the witness said that was where Flindt made another advance at him;
that Flindt "said nothing and he came around to my side again and he played with me and
I called him a 's of a b' and hit him"; that when they first got out a little ways "Kelly"
said the air made him feel a little better and from then on he was not staggering so awful
much; that the witness first complained to Petsch that "Bob" Flindt had made improper
advances at him when the witness first came out of the toilet; that witness met "Kelly"
there thenthat he was standing by the nickelodeon; that no one else was standing with
Petsch when he told him about Flindt making such advances; that witness "told him what
that guy did to me * * * that he started to fool with me"; that he did not think Petsch said
anything.
63 Nev. 118, 147 (1946) State v. McKay
advance at him; that Flindt said nothing and he came around to my side again and he played
with me and I called him a s of a b' and hit him; that when they first got out a little
ways Kelly said the air made him feel a little better and from then on he was not staggering
so awful much; that the witness first complained to Petsch that Bob Flindt had made
improper advances at him when the witness first came out of the toilet; that witness met
Kelly there thenthat he was standing by the nickelodeon; that no one else was standing
with Petsch when he told him about Flindt making such advances; that witness told him
what that guy did to me * * * that he started to fool with me; that he did not think Petsch
said anything.
The witness testified further that he hit Flindt several times with the right hand and that,
after Flindt was down, he picked him up and took him behind the fence; that, I can not think
of no reason, I was drinking.
Question by Mr. Jepson: Do you recall that same morning over at the police station, when
you were talking to the chief of police in my presence and in the presence of a lady there and
another gentleman? A. Yes.
Q. Can you recall the question was asked you why you dragged him behind the picket
fence? A. No.
Q. Do you recall that you made this answer, I don't know, I just didn't want to let
anybody see me rob him, I guess'? A. Yes, but I never even robbed him then, I never even
thought of robbing him then until
Q. Do you remember making that statement down there? A. No.
Q. This question was asked you, What did you do after you drug him behind the picket
fence?', answer I told you I took his money', is that right? A. After I took Kelly' back there
that is when I took his money. Kelly' was standing there.
Q. Were you wrong when you made that statement the next morning, as I have given it to
you here? A. I must have been. * * *
Q. Why did you drag Flindt's body to the back of the fence? A. I don't know.
63 Nev. 118, 148 (1946) State v. McKay
the fence? A. I don't know. I told you it was because I was drinking and I was mad, and that is
all I know.
Q. Kelly' Petsch did not help you drag the body at all? A. No.
Upon appellant's first assignment of error, that the verdict is contrary to the evidence and
the law, in that the corpus delicti was not proven beyond a reasonable doubt, the sole question
for our determination is: Was there substantial evidence adduced at the trial to support the
verdict of the jury?
The gist of appellant's testimony, bearing upon the points in conflict, is:
That the deceased made improper advances to him in the Midway Bar, attempting to
play with him, and a little later, at the bar, telling him that deceased was a pervert, had
asked him if he had a room; that appellant saw Kelly Petsch standing in the Midway Bar
and told him about this and that Flindt was a queer; that he shrugged him off the first time,
told him upon the second occasion that he didn't go for that kind of stuff; that later, when
Flindt offered to go with him to take Kelly for a walk he consented and said, O. K.; that
he was not afraid of him and not afraid he would make further improper advances; that while
they were walking on the sidewalk of East Fourth street the deceased walked around Kelly,
who was between them, and made another improper advance, starting to play with
appellant; that appellant became very mad and hit him, striking him four or five times, and
knocked him down, but never kicked him at all; that Kelly appeared to try to interfere
after appellant hit deceased, stepping between them, and appellant knocked Kelly down;
that Kelly did not get up and come over to where they were fighting and try to get him to
quit, as Kelly testified he did, but remained where he had fallen on the sidewalk or curb;
that appellant then dragged the deceased behind a picket fence near by, but at that time had no
intention of robbing him; that at one point in his testimony, on his direct examination, the
appellant said: "I have not any definite reason why I picked him up and took him behind
the fence."
63 Nev. 118, 149 (1946) State v. McKay
intention of robbing him; that at one point in his testimony, on his direct examination, the
appellant said: I have not any definite reason why I picked him up and took him behind the
fence. On cross-examination, to the question, Why did you pick him up and put him behind
the fence? appellant answered, I cannot think of no reason, I was drinking; and later in the
cross-examination he was asked, Why did you drag Flindt's body in the back of the fence?
and answered, I don't know. I told you it was because I was drinking and I was mad and that
is all I know. On November 26, 1944, about noon, the appellant, when asked by Chief of
Police Fletcher why he dragged Flindt behind the picket fence, answered, I don't know. I just
didn't want to let anybody see me rob him, I guess. At the trial appellant was asked if he
remembered making said statement to Chief Fletcher, and answered, No.
On the trial appellant insisted that he formed no intention to take Flindt's wallet until he
took Kelly behind the fence and showed him where he was. He also said, I went back out
and helped Kelly' to his feet, and he asked me where Flindt was.
It will be remembered that Kelly Petsch did not remember appellant ever told him Flindt
had made any improper advances to appellant or that Flindt was queer. Petsch testified he
saw or heard nothing unusual or indicating any improper advance, before the fight started;
that he heard McKay call Flindt a s of a b and then hit him. Petsch testified in detail
about getting to his feet soon after he was knocked down, seeing McKay kick Flindt in the
face, asking him what he was kicking him for, warning him that he might kill him, and then
about following, at McKay's command, and seeing McKay drag Flindt behind the fence; that
Petsch followed, and was just inside the fence when McKay laid Flindt down and then kicked
him in the face. Petsch's testimony is clear, describing in detail what he saw and heard, and
is in direct conflict with McKay's claim that, after dragging Flindt behind the fence, he
went and helped Petsch to his feet, and took him behind the fence, and showed him
where Flindt was, and that he did not kick him.
63 Nev. 118, 150 (1946) State v. McKay
saw and heard, and is in direct conflict with McKay's claim that, after dragging Flindt behind
the fence, he went and helped Petsch to his feet, and took him behind the fence, and showed
him where Flindt was, and that he did not kick him.
Is Petsch's testimony, together with that of Chief of Police Fletcher and Dr. Lawrence
Parsons and other witnesses for the state, upon the disputed points, substantial? Upon the
question of whether McKay kicked Flindt, the physical facts, as found by Dr. Parsons at the
autopsy, strongly corroborate Petsch and convincingly show that the deceased was kicked.
The doctor testified he saw a large abrasion on the vertex of the scalp, and explained that by
vertex is meant directly on top of the head, and upon inspecting the top of the scalp on the
skull he noticed extensive bruising of the inner surface of the scalp and also of the temporal
muscles. The doctor stated that the immediate cause of death was: cerebral hemorrhage due
to contusions of head.
It would have been impossible for a man standing on the surface of the ground to have hit
another person of about the same height a blow with his fist directly on top of the head, or
very improbable that any such blow of the fist would have been attempted after the man was
knocked down and was lying on the ground; to administer such a blow the appellant would
have had to kneel, and then the blow would have been ineffective if the fist alone were used.
Certainly, a man thus kneeling could not have struck a blow with the bare fist, striking the
hard surface of the head, that would have caused a large abrasion and the extensive bruising
inside the skull which the doctor found. On the other hand, kicking would have been
convenient, and the hard, sharp edges of the sole of a shoe would be calculated to produce the
bruises and the abrasions evident on the body of the deceased.
1. If the appellant falsified as to this important matter, by claiming that he did not kick the
deceased, the jurors were at liberty to seriously question his credibility upon other disputed
points, and to disregard his entire testimony, except insofar as it had been corroborated
by other credible evidence, or by facts or circumstances proven on the trial. "Falsus in
uno, falsus in omnibus." State v. Burns, 27 Nev. 2S9, 293
63 Nev. 118, 151 (1946) State v. McKay
upon other disputed points, and to disregard his entire testimony, except insofar as it had been
corroborated by other credible evidence, or by facts or circumstances proven on the trial.
Falsus in uno, falsus in omnibus. State v. Burns, 27 Nev. 289, 293, 74 P. 983, 984; Zelavin
v. Tonopah Belmont Development Co., 39 Nev. 1, 11, 149 P. 188; Williams v. State, 9 Okl.
Cr. 206, 131 P. 179.
In view of appellant's admission to Chief Fletcher by the words, I don't know, I just didn't
want to let anybody see me rob him, I guess, as the reason for dragging the body of Flindt
behind the fence, which was a very sensible reason from the standpoint of one committing a
robbery and fearing detection, the appellant's attempt at his trial to repudiate that statement
and to substitute such excuses as that he was drinking and mad, or that he had no reason,
which were not sensible reasons at all, clearly indicates that his spontaneous statement to
Chief Fletcher constituted the true reason for dragging Flindt behind the fence, namely, to rob
him. If appellant possessed the intention to rob Flindt at the time he dragged him behind the
fence, is it not probable that he possessed such intention a few minutes before, when he first
struck Flindt? (Petsch said the entire episode covered only from three to five minutes.) The
appellant contends, however, that Flindt had made an improper advance to him, that this
made him very angry and that then, in the sudden heat of passion caused by such provocation,
he administered the beating which resulted in Flindt's death. He does not show any facts, nor
explain why this particular improper advance, or insulting action by Flindt, if it occurred,
affected him so differently from the previous improper advances by Flindt which he claims
took place at the Midway Bar. Is it reasonable to believe that when he merely shrugged off, as
he claims, the first of these advances, and upon the second occasion, as he claims, merely told
Flindt to lay off, he didn't go for that stuff, and then was entirely willing that Flindt go with
him on the walk with Petsch, and said he did not fear him, that, on the third occasion, as he
claims, of another improper advance of the same nature as the others, he would have
suddenly become so enraged that, for that cause alone, he would have beaten him to
death, or so seriously that he would never have regained consciousness?
63 Nev. 118, 152 (1946) State v. McKay
as he claims, of another improper advance of the same nature as the others, he would have
suddenly become so enraged that, for that cause alone, he would have beaten him to death, or
so seriously that he would never have regained consciousness? Is it reasonable to believe that,
if he thus did become so angry, and dragged Flindt behind the fence because he was drinking
and mad, as he said on one occasion in his testimony, and knocked Petsch down shortly
before, he would suddenly have become so kind, solicitous and compassionate as to Petsch
that he would have gone to the trouble to help Petsch up and escort him over to show him
where he had dragged Flindt behind the fence, or that he would suddenly have become so
cool and calculating that he would for the first time then and there have formed the intention
to rob Flindt? There is same consistency in expressions and reactions of the human mind; a
provocation or cause sufficient to excite an irresistible passion in the mind of a reasonable
person on one occasion is most likely, if similar in nature and surrounding circumstances, to
excite an equal degree of passion on another occasion in the same person; and, conversely, if
it is insufficiently to excite such passion and does not do so on one occasion, such
provocation is most unlikely on another occasion, under like circumstances, to excite such
passion. And such passion when once existent and manifesting itself in the cruel use of
physical force, is not immediately replaced by compassionate kindliness and cool calculation.
Petsch's testimony, clear and convincing, completely denies the existence of the occasion
upon which McKay claims the intention to rob the deceased arose, namely, when he went to
assist Petsch to his feet and escort him to where Flindt was behind the fence, and the usual
human emotions and reactions confirm Petsch. Reason and experience, together with the
evidence in the record as to the effect upon appellant of the two prior improper advances
which he claims occurred, and as to appellant's background, likewise render most
improbable the sudden heat of passion which he claims as the cause of his assault upon
Flindt.
63 Nev. 118, 153 (1946) State v. McKay
background, likewise render most improbable the sudden heat of passion which he claims as
the cause of his assault upon Flindt. In the light of the known fact and circumstances, and the
admission of the appellant to Chief Fletcher of an intention to rob as the reason for dragging
Flindt behind the picket fence only a few minutes after, as he claims, the alleged improper
advance occurred, this claim of the appellant of the sudden heat of passion and that he
dragged Flindt behind the fence without any intention to rob him, becomes fantastic and
unreal. What, then, was the intention and the motive? The jurors had the right, from the
evidence and from their reasoning and experience, to believe that the intention to rob was
formed before the appellant called deceased the bad name and hit him, and that the motive
was to obtain money. The appellant testified he had two hundred and fifty dollars shortly
before arriving in Reno; that he spent some of it for clothes, bus fare and living expenses, but
had the balance when he camea substantial amount; that he had been in Reno five or six
days, drinking and gambling mostly, and had not worked; that he had only twenty-five dollars
when he started out the evening of November 25; that he won thirty dollars that evening
before going to the Midway Bar, expended some money for a few drinks and taxi fare and
had a little more than fifty dollars when he arrived at the Midway. From the evidence he
seemed to have spent money very freely, having tipped the taxi driver four dollars on the
occasion of the taxi ride with Petsch shortly after the trouble occurred. The appellant stated to
Chief Fletcher, when asked why he took the money off Flindt, that he wanted it to gamble,
pay his room rent and eat.
2. In view of the physical condition of the body of Flindt, plainly disclosing he had been
kicked, and by reason of the inherent improbabilities of the appellant's statements in relation
to the other controverted questions of fact, as compared to the clear and convincing
testimony of Kenneth Petsch, and the testimony of the other witnesses for the state
having relation to the matters concerning which conflict in the evidence exists, we are
impelled to the conclusion that there is substantial evidence in the record to support the
verdict of the jury finding the appellant guilty of murder in the first degree.
63 Nev. 118, 154 (1946) State v. McKay
testimony of Kenneth Petsch, and the testimony of the other witnesses for the state having
relation to the matters concerning which conflict in the evidence exists, we are impelled to
the conclusion that there is substantial evidence in the record to support the verdict of the jury
finding the appellant guilty of murder in the first degree. In fact, the evidence clearly and
convincingly supports the verdict, and in our opinion no other verdict would have been
justified in view of the evidence. It is asserted that the verdict is contrary to the evidence, and
the law, in that the corpus delicti was not proven beyond a reasonable doubt, or at all.
3. Our constitution, art. VI, sec. 4, is to the effect that appeals to the supreme court in
criminal cases can be taken on questions of law alone. We apprehend that the reason for this
provision is that matters of fact and of evidence, such as the credibility of witness, and the
weight to be given their testimony, are exclusively within the province of the jury. It is the
rule, therefore, long established and consistently adhered to by this court, that if there is
substantial evidence to support the verdict of the jury, the evidence will not be weighed by
this court, nor the verdict or judgment disturbed, upon the alleged basis of the insufficiency of
the evidence to sustain or justify the verdict. State v. Van Winkle, 6 Nev. 340; State v. Mills,
12 Nev. 403; State v. Buralli, 27 Nev. 41, 71 P. 532; State v. Hunter, 48 Nev. 358, 232 P.
778, 235 P. 645; State v. Boyle, 49 Nev. 586, 248 P. 48; State v. Watts, 53 Nev. 200, 296 P.
26. It follows that appellant's first assignment of error is without merit.
Assignments of error II, III and IV relate to the correctness of the proceedings at the trial
and the ruling of the trial court upon appellant's motion to have the handcuffs removed from
appellant's wrists.
The record discloses that on the morning of January 25, 1944, the same being the second
day of the trial, Mr. Lohse, attorney for the defendant, said:
Before we proceed, I move the court at this time that the court enter an order directing
the sheriff to remove the handcuffs from the defendant, on the ground his presence in
court with handcuffs is prejudicial to the defendant.
63 Nev. 118, 155 (1946) State v. McKay
the court enter an order directing the sheriff to remove the handcuffs from the defendant, on
the ground his presence in court with handcuffs is prejudicial to the defendant. There are two
deputies here, who, I am sure, are capable of keeping his custody while he is in court. The
handcuffs should be removed.
The court thereupon stated:
That is a matter entirely within the discretion of the sheriff. The motion is denied. In
other words, I am not running the office of the sheriff.
Assignment of error II states, that the trial court erred in denying that the court had
discretion in determining whether or not a defendant should be shackled during the course of
the trial.
4, 5. Undoubtedly the trial court made an erroneous statement in connection with the
ruling, as to the reason therefor, notwithstanding which, the court did exercise its discretion
by denying the motion. The statement was erroneous in indicating that discretion in the matter
was entirely or exclusively in the sheriff. Practically all of the authorities dealing with the
question state that the discretion of determining, in a particular case, whether or not the
exceptional conditions of fact permitting or justifying shackling are existent, is in the trial
court, and that the exercise of such discretion will not be interfered with unless that discretion
was abused. 16 C.J. p. 819; 23 C.J.S., Criminal Law, sec. 977, p. 313; 8 R.C.L. 68; 14 Am.
Jur. 855. It is our view that the right of a defendant to be free from shackles and manacle at
his trial is an important right guaranteed by our constitution and laws, by their provisions for
a fair and impartial trial and establishing the right of one accused of crime to be free to defend
himself. Permitting a defendant to be shackled during his trial is legally justifiable only upon
the trial court having found, in the exercise of its judicial discretion, in the particular case, the
existence of the exceptional conditions, of fact and circumstance, reasonably rendering
necessary a departure from this wholesome and salutary general rule against shackling and
manacling.
63 Nev. 118, 156 (1946) State v. McKay
from this wholesome and salutary general rule against shackling and manacling. (Italics ours.)
6. It has been held, however, and we believe generally conceded, that a sheriff, charged
with the responsibility of safely keeping a person, has the right, in his discretion, to handcuff
one charged with murder or other felonious crime when he is being taken from and to the
court. Donehy & Prather v. Com., 170 Ky. 474, 186 S.W. 161, 3 A.L.R. 1161.
It appears from the record that the trial court in ruling upon appellant's motion for a new
trial, referred to the court's ruling upon the previous motion to remove the shackles from
appellant, and stated:
Defendant was escorted from the jail and into the courtroom for his trial with handcuffs
on his wrists. On the second day of the trial defendant's attorney moved the Court for an order
directing the Sheriff to remove the handcuffs from the defendant, on the ground that his
presence in Court with handcuffs is prejudicial to the defendant.' Nothing was then offered to
show, or even indicate, how or in what manner the defendant was prejudiced by remaining in
Court with handcuffs, said attorney simply stating:
There are two deputies here, who, I am sure, are capable of keeping his custody while he
is in Court, the handcuffs should be removed.'
The denial of that motion is now urged as one of the reasons for asking for a new trial.
At that time I knew that the defendant had previously been convicted of burglary, had
served a term in the Utah penitentiary, had deserted from the armed forces of the United
States, had been sentenced to twenty years' imprisonment, had escaped from a military guard
house, had registered in Reno under an assumed name, and had attempted to escape from the
Washoe County jail. I had also been advised that while in the Washoe County jail the
defendant had attempted to procure some hack saws in order to escape therefrom, at the time
stating, in effect, that he could not secure his liberty legally.
63 Nev. 118, 157 (1946) State v. McKay
liberty legally. I had also been advised that the Sheriff and his deputies actually believed it
necessary to keep the defendant handcuffed in Court in order to prevent his attempting to
escape.
Some of these facts were then known to the members of the jury, having been divulged to
them by defendant's counsel in his examination touching their qualifications as jurors. All of
them were then known to the Sheriff and his deputies.
I denied the motion of defendant's counsel, because I deemed handcuffs necessary for
defendant's safe detention and because I believed the Sheriff was fully justified in keeping the
defendant handcuffed. If I erred in not so stating to the jury or in not then stating the facts
which supported my conclusions, which I do not concede, such error was certainly not
prejudicial to the defendant.
7. It is clear from the foregoing statement of the trial court that the trial judge possessed
information of certain past criminal acts of appellant, from statements made by counsel for
appellant in examining the jurors, and information as to such acts from other sources,
principally, no doubt, from the sheriff of Washoe County, an officer of the court. It is
believed the trial judge possessed sufficient information and knowledge to enable him
properly to exercise his discretion in ruling upon the motion to remove the shackles from
appellant, and that, while his words indicated he was deferring to the sheriff's discretion he
was merely giving proper heed, as he had the right to do, to the sheriff's knowledge of the
record, tendencies and character of appellant and to his recommendation as an officer of the
court, in relation to the necessity of keeping appellant handcuffed during his trial in order to
prevent his escape.
Regardless of the fact that the trial judge stated an erroneous reason for his ruling, the trial
court did not decline to rule, but in the light of the knowledge which the trial judge then
possessed, did actually and advisedly exercise the court's discretion by denying appellant's
motion to remove the handcuffs.
63 Nev. 118, 158 (1946) State v. McKay
exercise the court's discretion by denying appellant's motion to remove the handcuffs.
On page 9 of his brief, in support of appellant's assignment of error II, the attorney for
appellant stated that there was no evidence before the court of any such improper conduct,
and that the state offered no evidence in opposition to defendant's motion to remove the
handcuffs, at the time it was made.
8. It has been repeatedly held, in effect, that, upon a motion to remove shackles or
handcuffs from a defendant, the court has the right to take into consideration knowledge
acquired outside of formal evidence offered and admitted at the trial. In Gray v. State, 9 Tex.
Cr. R. 305, 268 S.W. 941, on page 944, 269 S.W. 1056, there appears a statement of the trial
judge as follows:
Examined and approved with this explanation: I also talked with the sheriff of Titus
county, and Capt. Nichols, of the ranger service, who was assisting the sheriff during court.
They both told me that it was unsafe to take the handcuffs off. I was opposed to trying him
with the handcuffs on, and so stated to the officers, talking on more occasions than one
during the progress of the trial to the sheriff and ranger and deputies. Capt. Nichols advanced
this reason for keeping the handcuffs on. He said defendant was desperate, and in all
probability was bent on self-destruction, and would very likely try to secure some deputy's
pistol and create a stampede in the courtroom, and possibly deliberately do something to force
the officers to kill him. I kept the handcuffs on him at the request of the officers. Besides,
they were very small silver-plated cuffs, and were not in view when defendant was sitting
down. He could easily slip them back under his coat sleeves and could use his hands very
well.
At that point in the opinion, the appellate court said:
Taking note of the evidence before the trial judge, and the information by which he was
impelled, we feel that this court would not be warranted in concluding that the record
reflects an abuse of the discretion which the law vested in the trial court."
63 Nev. 118, 159 (1946) State v. McKay
that the record reflects an abuse of the discretion which the law vested in the trial court.
In Hall v. State, 199 Ind. 592, 159 N.E. 420, 424, the court, in passing upon a contention
of appellant similar to that we are now called upon to consider, expressed the opinion that
appellant's contention that the knowledge upon which a court bases its discretion to refuse a
prisoner's request that fetters be removed from his legs must come only from evidence offered
at the trial, was unsound, the language of the Supreme Court of Indiana in that connection
being:
Appellant's contention that the knowledge upon which a court bases its discretion to
refuse a prisoner's request that fetters be removed from his legs must come only from
evidence offered at the trial does not appear to us to be sound. The court, in ruling upon
appellant's motion or request, stated certain facts upon which it exercised its discretion and
based its decision. If the appellant contended that the facts so stated by the court were untrue,
he should have controverted them, and asked permission to show the true facts to the court by
proper sworn testimony. But this he did not do, and there is nothing in the record to show that
the facts stated by the court were untrue, but, on the contrary, facts were disclosed in evidence
showing a very desperate and determined effort by appellant to escape when he disarmed an
officer and used his revolver, and was finally quelled only when the sheriff threatened to gas
the jail.
Evidence to the effect that this appellant had secured a revolver and shot at the sheriff,
and attempted to escape, that his co-defendant had escaped, and that efforts might be made to
release the prisoner during the trial, it seems to us to be more to his damage than the fact that
he sat during the trial with his feet fettered. See Faire v. State, 1877, 58 Ala. 74, 82.
In the instant case, the learned trial judge in ruling upon appellant's motion for a new trial,
expressed a similar idea in the following language: "If I erred in not so stating to the jury,
or in not then stating the facts which supported my conclusion, which I do not concede,
such error was certainly not prejudicial to the defendant."
63 Nev. 118, 160 (1946) State v. McKay
If I erred in not so stating to the jury, or in not then stating the facts which supported my
conclusion, which I do not concede, such error was certainly not prejudicial to the defendant.
In Makley v. State, 49 Ohio App. 359, 197 N.E. 339, on page 346, it is stated in the
opinion of Guernsey, J.:
The case of Hall v. State, supra, is also authority for the proposition that the knowledge,
upon which a court bases its discretion to refuse the prisoner's request that fetters be removed
from his legs, need not come exclusively from evidence offered at the trial, and it would seem
clear that upon passing upon such request the court, in addition to considering the evidence
developed at the trial, would have the right and duty to consider facts developed by the
evidence on the trial of an accomplice immediately preceding the trial of the defendent, and
should take judicial notice of facts generally known within the limits of its jurisdiction. The
principle upon which this conclusion is based is well expressed by Judge Wanamaker in the
opinion in the case of Barnett v. State, 104 Ohio St. 298, at page 310, 135 N.E. 647, 651, 27
A.L.R. 351, in the following words: What we know as men, having common knowledge, * *
* we cannot ignore as judges.'
In view of the foregoing facts and authorities, there appears to be no merit to appellant's
assignments of error II and III.
Appellant's assignment of error IV is that: The trial court erred in denying defendant's
motion to have the handcuffs removed, which prejudiced appellant before the jury, and thus
denied him a fair and impartial trial as guaranteed by the constitution of Nevada, and the
United States constitution.
In this assignment of error the question confronting us is: Did the trial court, in view of the
knowledge which the trial judge then possessed as to the past criminal acts, conduct and
character of the appellant, abuse the trial court's discretion in denying the appellant's motion
that the handcuffs be removed? From a very early time in the evolution of the common law
it was recognized that a person accused of crime, in order to be able adequately and
efficiently to defend himself, should be, especially at his trial, free from the physical
handicap, mental embarrassment, mortification and perhaps impairment, and the
prejudicial influence, of manacles and shackles.
63 Nev. 118, 161 (1946) State v. McKay
From a very early time in the evolution of the common law it was recognized that a person
accused of crime, in order to be able adequately and efficiently to defend himself, should be,
especially at his trial, free from the physical handicap, mental embarrassment, mortification
and perhaps impairment, and the prejudicial influence, of manacles and shackles. This right
has been fully recognized and cherished by authorities in all countries, including the United
States, in which the Anglo Saxon system of jurisprudence prevails. In the United States, our
federal constitution and most state constitutions, including the constitution of the State of
Nevada, contain provisions to guarantee to one accused of crime the right to a fair and
impartial trial, and to make certain that he has full and fair opportunity for his defense.
In our Nevada criminal practice act, chapter 1, sec. 7, occurs a provision prohibiting
unnecessary restraint, before conviction of one accused of crime, said provision, sec. 10656
N.C.L., vol. 5, 1929, being as follows:
Sec. 10656. Witness Against SelfUnnecessary Restraint. Sec. 7. No person can be
compelled, in a criminal action, to be a witness against himself, nor shall a person charged
with a public offense be subjected, before conviction, to any more restraint than is necessary
for his detention to answer the charge.
The rule against unnecessary shackling, or manacling, was stated by the learned Sir
William Blackstone, as follows:
The prisoner must be brought to the bar without irons or in any manner of shackles or
bonds, unless there be evident danger of escape, and then he may be secured with irons. 4
Bl. Comm. 332.
This rule, as developed and applied, generally, in both the federal and state courts, is very
well stated in 8 R.C.L. 68, and in 14 Am. Jur. 855, in the following identical language:
Right to be Free from Shackles or Custody of Officers.At early common law when a
prisoner was brought into the court for trial, upon his plea of not guilty to an indictment
for a criminal offense, he was entitled to make his appearance free from all shackles or
bonds.
63 Nev. 118, 162 (1946) State v. McKay
brought into the court for trial, upon his plea of not guilty to an indictment for a criminal
offense, he was entitled to make his appearance free from all shackles or bonds. This is his
right today in the United States. The spirit of the law is that a prisoner, upon his trial before a
jury, shall have the unrestrained use of his limbs and shall not suffer any physical bond or
burden which might tend to confuse or embarrass his mental faculties. Furthermore, a
prejudice might be created in the minds of the jury against a prisoner who had been brought
before them handcuffed and shackled, which might interfere with a fair and just decision on
the question of the guilt or innocence of such person. It is recognized that it lies within the
discretion of the trial court to have a prisoner shackled when it is manifest that such a
precaution is necessary to prevent violence or escape, and that appellate courts will not
reverse the trial court's action except in a clear case of abuse of discretion. In exercising this
discretion the court must have some reason, based on the conduct of the prisoner at the time
of the trial, to authorize so important a right to be forfeited. There must be some immediate
necessity for the use of shackles. * * *
In 23 C.J.S., Criminal Law, sec. 977, p. 313, the rule, in more condensed form, is stated as
follows:
Shackling accused. During the trial accused should be free from shackles except in so far
as the trial court, in its sound discretion, deems it necessary to prevent the escape of accused
or his forcible release, to restrain him from doing violence to others, or from injuring himself,
or to prevent such misconduct as would obstruct the work of the court; and such exceptions
apply particularly while the accused is being brought into or taken from court.
9. We agree with Hawkins, J., in the opinion on rehearing in Gray v. State, Tex., 268 S.W.
at page 949, in the following statement of the rule:
From an examination of the text books, and the decisions cited in our original opinion
and here, as well as many other authorities collated by Wharton and Bishop, and referred
to in some of the cases mentioned, the rule. may be fairly stated that if the record
discloses no good reason for having the prisoner manacled during the trial the same will
be cause for reversal; on the other hand, if, in the sound discretion of the court, it appears
necessary to retain his shackles to prevent the escape or self-destruction of the prisoner,
or to prevent him from injuring bystanders or officers of the court, or if necessary to
maintain a quiet and peaceable trial, the court may try the prisoner without having the
shackles removed; this action being subject to the closest scrutiny and review by the
appellate court."
63 Nev. 118, 163 (1946) State v. McKay
many other authorities collated by Wharton and Bishop, and referred to in some of the cases
mentioned, the rule. may be fairly stated that if the record discloses no good reason for having
the prisoner manacled during the trial the same will be cause for reversal; on the other hand,
if, in the sound discretion of the court, it appears necessary to retain his shackles to prevent
the escape or self-destruction of the prisoner, or to prevent him from injuring bystanders or
officers of the court, or if necessary to maintain a quiet and peaceable trial, the court may try
the prisoner without having the shackles removed; this action being subject to the closest
scrutiny and review by the appellate court.
Especially do we approve the statement to the effect that the action of the trial court upon
permitting a prisoner to be tried without the removal of shackles upon the ground of necessity
shall be subject to the closest scrutiny and review by the appellate court. We agree also
with, and heartily approve, the further statement of the learned judge in 268 S.W. on page 950
of the said opinion that, we desire to make if perfectly plain that we regard a trial with the
prisoner in irons as obnoxious to the spirit of our laws and all ideas of justice, and it is only
when the record brings the case clearly within one of the rare exceptions that we would
consent for a conviction to stand. Before a judge should permit a case to proceed under such
circumstances, he should be very sure of his ground.
Practically all of the authorities however, we dare say, from the earliest inception of the
rule against compelling a defendant to be shackled or manacled at his trial, agree that, under
extreme and exceptional circumstances, indicating that such restraint is reasonably necessary
for the protection of innocent persons from violence, or the prevention of escape, or the
maintenance of orderly judicial proceedings, or the protection of the defendant himself from
self-destruction, the keeping of the defendant under restraint by shackles or manacles is
proper.
What are the facts as to appellant Ladell McKay? He acknowledged, in his testimony as
a witness on his own behalf at his trial, that he was convicted in Utah and sentenced to
the Utah penitentiary for second degree burglary; that he was arrested twice before that
for car theft; and that while he was out on parole from the Utah penitentiary, he was
drafted into the army, and that he was convicted by army court martial for desertion and
was sentenced to twenty years imprisonment therefor.
63 Nev. 118, 164 (1946) State v. McKay
acknowledged, in his testimony as a witness on his own behalf at his trial, that he was
convicted in Utah and sentenced to the Utah penitentiary for second degree burglary; that he
was arrested twice before that for car theft; and that while he was out on parole from the Utah
penitentiary, he was drafted into the army, and that he was convicted by army court martial
for desertion and was sentenced to twenty years imprisonment therefor.
In addition to having knowledge of the foregoing past criminal record, except perhaps as
to the auto thefts, the trial court, upon ruling upon appellant's motion for a new trial, stated
that at the time he ruled on the motion to remove the shackles he then knew that the
defendant had escaped from a military guard house and had attempted to escape from the
Washoe County jail.
Upon the trial, but after the ruling upon the motion to remove the shackles, Chief of Police
Harry D. Fletcher, of Reno, testified that the defendant, on the same day of his arrest, stated to
him that he, the defendant, deserted while in the army and later was arrested and escaped
from the Lemoore Army Base in California; and Edwin Gily, a deputy sheriff of Washoe
County, testified at the trial, but after said ruling upon the said motion, that the defendant, on
the morning of January 22, 1944 (two days before the commencement of his trial), tried to
break out of the Washoe County jail; that the witness and one Gray were in the said jail and
heard an unusual noise inside the tank; that they sat there and talked a few minutes and Gily
took off his shoes and sneaked over to where he could look inside the tank, and he could see
the appellant trying to pry the control box door open; that the control box is a lever that opens
the main door to the tank, in which the appellant and others were confined; that the appellant
had an iron bar, approximately three feet long by three eights of an inch wide, and that when
the witness looked in, the appellant was prying on the control box; that if he had succeeded
in prying the door of the control box open, he might have opened the door of the tank in
which he was confined; that he damaged the control box to the extent that they were
unable to open it with a key, and that it was all bent out of shape and Gily had to get a
locksmith to open it.
63 Nev. 118, 165 (1946) State v. McKay
he had succeeded in prying the door of the control box open, he might have opened the door
of the tank in which he was confined; that he damaged the control box to the extent that they
were unable to open it with a key, and that it was all bent out of shape and Gily had to get a
locksmith to open it.
In view of the knowledge which the trial court undoubtedly had, at the time of ruling upon
appellant's motion that the shackles be removed, which knowledge was later confirmed at the
trial by the appellant himself in his testimony, and by Chief Fletcher from what appellant had
stated to him, and by the witness Gily as to the attempted escape by appellant from the
Washoe County jail only two days before his trial for murder (at a time when one other than a
desperate man would have wished to make the best possible impression), the conclusion is
fully justified that the appellant was, at the time of the said ruling of the court declining to
permit the removal of the handcuffs, a dangerous and desperate man, and that the sheriff, his
deputies and the court were reasonably justified in apprehending that the appellant, if the
handcuffs were removed, might at any time, even at the time of the trial, attempt to escape,
and that he might resort to any available means of physical violence to accomplish such
escape.
The appellant, by his own conduct, was the primary cause of any prejudice his being
handcuffed might entail.
10. In view of the exceptional facts and circumstances existing, and within the knowledge
of the trial judge, as above outlined, at the time of the ruling, we cannot conscientiously say
that the trial court abused its discretion in denying the motion to remove the handcuffs. There
is no merit, therefore, to appellant's assignment of error IV.
There are numerous authorities, of course, which, under ordinary circumstances not
disclosing that the defendant had a particularly bad record, nor that he had indicated an intent
to escape or to employ violence, nor that in other respects he was dangerous, have held
shackling or manacling, under the particular circumstances existing in those cases, to be
unjustified.
63 Nev. 118, 166 (1946) State v. McKay
that in other respects he was dangerous, have held shackling or manacling, under the
particular circumstances existing in those cases, to be unjustified.
Cases so holding, and which have frequently been referred to as leading cases, are: State v.
Kring, 1 Mo. App. 438, also Id., 64 Mo. 591; People v. Harrington, 42 Cal. 165, 10 Am. Rep.
296; and State v. Williams, 18 Wash. 47, 50 P. 580, 39 L.R.A. 821, 63 Am. St. Rep. 869.
See, also: 1 Bishop Crim. Proc. sec. 955; Wharton P. & Prac. sec. 540; and State v. Smith, 11
Or. 205, 8 P. 343.
The qualification of the general rule, which is very generally applied under extreme and
exceptional circumstances, is well stated in Bishop's New Crim. Proc., 2d ed., vol. 2, section
955, to be:
In extreme and exceptional cases, where the safe custody of the prisoner and the peace of
the tribunal imperatively demand, the manacles may be retained.
Some of the cases in which the facts have been deemed sufficiently exceptional and
extreme to justify departure from the general rule, and which, in essentials are similar to the
instant case, are: Faire v. State, 58 Ala. 74; Territory of New Mexico v. Kelly, 2 N.M. 292;
Hall v. State, supra; Gray v. State, supra; People v. Kimball, 5 Cal. 2d 608, 55 P.2d 483; State
v. Bryan, 69 Ohio App. 306, 43 N.E. 2d 625; Rayburn v. State, 200 Ark. 914, 141 S.W. 2d
532; and Com. v. Millen, 289 Mass. 441, 194 N.E. 463, 480.
Such cases as Makley v. State, supra, and Pierpont v. State, 49 Ohio App. 77, 195 N.E.
264 (the defendants in each of said cases being members of the Dillinger gang), and
McDonald v. United States, 8 Cir., 89 F.2d 128 (defendant being a member of the
Barker-Carpis gang), we have not cited with the foregoing authorities in support of our
position, for the reason that the defendants in those cases, being members of notorious
criminal gangs or groups of extreme desperateness and depravity, were in a class more
extreme in degree than any to which appellant, in the instant case, could be fairly assigned.
63 Nev. 118, 167 (1946) State v. McKay
which appellant, in the instant case, could be fairly assigned.
For convenience we will treat assignments of error V, VI and VII inversely.
Assignment VII is that the trial court erred in admitting in evidence the affidavit of Sheriff
Ray Root. In support of this assignment the appellant contends: (1) That the affidavit, being
ex parte, and not allowing for cross-examination, is not admissible; (2) that the statements
therein are hearsay; and (3) that the statements therein are not material to the issues of the
case.
11. The affidavit of Sheriff Root was to the effect that he had learned that appellant
had escaped from the guard house at an army camp at Lemoore, California; and further,
that he had been confined and had served time in the Utah State penitentiary, at Salt Lake
City, Utah, for burglary. That on or about January 2nd affiant had received information from
the Federal Bureau of Investigation that a letter had been written by Ladell McKay to one
Miss Mary Davis, Panguitch, Utah, wherein the said McKay asked Miss Davis to send him a
box with some hack saw blades in it * * * and instructed her as to steps she should take to
conceal the blades. The affidavit further, as of affiant's own knowledge, stated facts as to
Ladell McKay's attempt to break out of the Washoe County jail January 22d (1944), by
springing the door of the control box which controls the entrance door to the section in which
he was confined. The affidavit further stated that in view of his information and knowledge
of the character of defendant that affiant cautioned and warned all his men and deputies to
take no chances in permitting the said Ladell McKay to escape, and that affiant deemed it
necessary to prevent his escape and for the safety of the court attaches, spectators and all
parties in and about the court house, that the said Ladell McKay be handcuffed at all times
while he was out of the jail.
It is apparent that, as to the escape of appellant from the guard house at the army camp
at Lemoore, California, and as to appellant's having been confined in the penitentiary at
Salt Lake City, Utah, for burglary, also as to the information in regard to appellant's letter
to Mary Davis, the affiant's statements are based upon hearsay.
63 Nev. 118, 168 (1946) State v. McKay
the guard house at the army camp at Lemoore, California, and as to appellant's having been
confined in the penitentiary at Salt Lake City, Utah, for burglary, also as to the information in
regard to appellant's letter to Mary Davis, the affiant's statements are based upon hearsay. As
to the first two occurrences above stated, he stated he learned of them, without disclosing
any source. While the information may have come to him officially from some Utah officers
or officers as to appellant's having been confined and having served a term in the Utah
penitentiary, and from a military officer or officers as to the escape from the army base at
Lemoore, California, such information may have been received merely from a bystander in
Reno or elsewhere, inasmuch as affiant has failed, as to both these instances, to disclose the
source of his information.
In regard to the information received through the federal bureau of investigation it is not
disclosed whether the information imparted to affiant was from an official of the F.B.I. who
had personally seen the letter, or from some official of that organization who received the
information from another F.B.I. official or agent who knew the facts, or whether the
information came second or third handed from a person or persons not officially connected
with the F. B. I. who reported the so-called information to that organization.
The portions of the affidavit relating to past offenses and having no relation to the instant
case, namely, his having been confined in the Utah penitentiary for burglary and having
escaped from the guard house at the army camp at Lemoore, California, were inadmissible,
upon the motion for a new trial, also upon the further ground that such evidence is
incompetent and irrelevant to tend to show the guilt of the appellant in the instant case, or that
the evidence is sufficient to justify the verdict. Such evidence, if same were not hearsay, and
if it were offered for the purpose only of assisting the trial court in determining, upon the
motion for a new trial, the correctness of the former ruling denying appellant's motion to
remove the handcuffs, could have been admitted properly for that purpose only, and to
render it admissible for that special purpose, the trial court would necessarily have had to
restrict or limit its reception to that purpose.
63 Nev. 118, 169 (1946) State v. McKay
motion to remove the handcuffs, could have been admitted properly for that purpose only,
and to render it admissible for that special purpose, the trial court would necessarily have had
to restrict or limit its reception to that purpose. This the trial court did not do. Therefore, the
portions of the affidavit relating to the first two matters above mentioned were inadmissible
as hearsay, and also because of the relation to past offenses having no connection with the
instant case, and the court, in ruling as to their admissibility, not having confined the same to
the purposes and effect of showing only the past criminal record and character, as tending to
show, upon the motion for a new trial, the correctness of the court's ruling as to removing the
handcuffs. To sanction the action of the trial judge, when ruling upon the incidental matter of
shackling or handcuffing, at the commencement of the trial, under conditions in the nature of
an emergency, with little or no time to obtain legal evidence, in acting upon the basis of his
own knowledge and best available information received outside of court, even though
hearsay, as to the defendant's criminal record and character, in order to determine whether
shackling was necessary, is a very different matter from sanctioning his acting upon such a
basis at the trial, or upon a motion for a new trial, when ruling as to the competency or
character of evidence which is admissible. As to the incidental matter of shackling, legal
evidence duly offered and introduced in a formal proceeding is held not essential. This is
generally stated by the authorities, some of which have been cited in this opinion. At the trial,
or upon a motion for a new trial, the one involving, as it does, the issue of the guilt or
innocence of the defendant, and the other the sufficiency of the evidence to sustain the verdict
of guilty, the issues involved are of too great importance and are too far reaching in their
consequences to permit anything but competent, relevant and material evidence to be
received.
12-16. We are confronted with a different situation as to the portion of the affidavit
relating to the letter alleged to have been written by appellant to Mary Davis requesting
that hack saw blades be sent him, from that before us in regard to the above-mentioned
portions of the affidavit dealing with the alleged past offenses of appellant.
63 Nev. 118, 170 (1946) State v. McKay
alleged to have been written by appellant to Mary Davis requesting that hack saw blades be
sent him, from that before us in regard to the above-mentioned portions of the affidavit
dealing with the alleged past offenses of appellant. The portion of the affidavit relating to the
said letter is inadmissible because same is hearsay, and also for the further reason that,
although, ordinarily, such evidence, being in relation to an intended attempt to escape from
incarceration in connection with the case at bar, would be relevant and material at the trial to
show consciousness of guilt and fear of consequences (16 C.J. 554; 22 C.J.S., Criminal Law,
sec. 631), it would, of course, not be proper for that purpose, after the trial and upon motion
for a new trial upon the ground of the insufficiency of the evidence to justify the verdict. No
evidence would be proper upon a motion for a new trial that was proper, relevant or material
to the issues at the trial, involving the guilt or innocence of the defendant, and not there
introduced. In other words, the case cannot be reopened on a motion for a new trial, and new
evidence, which would have been proper to have been admitted in chief at the trial, be
allowed after the jury has rendered its verdict and been discharged. To do so would permit
strengthening, retroactively, the basis of the verdict. Only the evidence admitted at the trial,
and before the case was finally submitted to the jury, can be considered upon a motion for a
new trial in determining the sufficiency or insufficiency of the evidence to justify the verdict.
This appears elementary. This evidence of the letter to Mary Davis, if it had not been hearsay,
would have been admissible for the purpose only of showing, upon the motion for a new trial,
the appellant to be a desperate and dangerous character, and to make clear the justification of
the trial court's ruling declining to order the handcuffs removed, and hence to show that a new
trial because of the trial court's having allowed the handcuffs to remain was unjustifiable; but,
in order to render the evidence admissible for that purpose, the court, as above pointed out,
must have expressly confined its admissibility and use to that purpose.
63 Nev. 118, 171 (1946) State v. McKay
its admissibility and use to that purpose. The record does not show that the trial court did this.
17. The portion of the affidavit which narrated the attempted escape by appellant from the
Washoe County jail January 22, 1944, and all other portions of the affidavit not above
specifically mentioned, stated facts within the affiant's own knowledge, and, therefore, were
not hearsay, and would have been admissible to show the criminal and desperate character of
appellant, for the purpose of showing the reasonable necessity of keeping him handcuffed at
the time of the trial and the correctness of the court's ruling in declining to order the
handcuffs removed, if the court had confined its admission, and use as evidence, to that
purpose only, but it does not appear from the record that the trial court did thus confine or
restrict the admission and use of the affidavit. When it was admitted upon the hearing of
appellant's motion for a new trial, its admission in evidence, without any such restriction, was
erroneous.
For the reasons stated, appellant's assignment of error VII has merit.
We will now consider the law and the authorities relative to appellant's assignment of error
VI.
18. It is well settled that, while jurors may be permitted to testify as to whether or not any
particular act alleged as misconduct on the part of the jurors occurred, or as to the existence
of any fact militating against a fair and impartial trial, they are not permitted to give evidence,
either orally or by affidavit, upon a motion for a new trial, as to the effect such misconduct, or
prejudicial act had upon their minds.
19. The correct rule on this proposition, as stated and approved very generally by the
authorities, is as set forth on page 18 of appellant's opening brief. Appellant's counsel has
there quoted the same from McPhee v. People, 108 Colo. 530, 120 P.2d 814, 815, a leading
case on the subject, as follows:
It is well settled that jurors may testify to any fact showing the existence of an outside
influence, but they cannot give evidence as to the effect any such outside influence may
have had on their minds in arriving at a verdict.
63 Nev. 118, 172 (1946) State v. McKay
cannot give evidence as to the effect any such outside influence may have had on their minds
in arriving at a verdict. Courts never enter into such fields of conjecture. What they do is to
hear the facts and determine as a matter of law the effect reasonably calculated to be produced
upon the mind of the juror by such outside influences.
20-22. This rule is stated in somewhat different language, but to the same effect, in 23
C.J.S., sec. 1494, subsec. b Criminal Law, p. 1315, cited on pages 11 and 12 of respondent's
brief:
The affidavits or testimony of jurors are, as a general rule, admissible when offered by the
prosecution for the purpose of sustaining the verdict.
Accordingly the jurors are competent to rebut allegations of bias and jurors are competent
to rebut allegations of misconduct; but where the act of misconduct is admitted, it cannot be
shown by the jurors that accused suffered no prejudice by reason thereof, as under such
circumstances the presumption of prejudice is conclusive. On the same principle, affidavits
by jurors that they were not influenced by reading newspaper articles, or by improper
arguments of the prosecuting attorney, or by improper evidence or exhibits introduced in the
jury room, or that they did not pay any attention to the fact that an instruction delivered to
them was marked refused' cannot be considered.
The principle is very well explained in the case of Hempton v. State, 111 Wis. 127, 86
N.W. 596, 603.
The affidavits of the jurors, in the instant case, were offered and admitted for the purpose,
of course, of proving, or tending to prove, that they were not prejudicially influenced by the
fact that the appellant was handcuffed, and permitted to remain handcuffed in the courtroom,
during the trial. The influence of seeing a defendant on trial shackled before them, necessarily
producing in the beholder's mind at least a strong impression that the person shackled is an
outlaw, or criminal of a dangerous type, is subtle and insidious. Through the sense of sight, it
quietly, but none the less effectively, impresses itself upon the subconscious mind and
creates there an influence of which the juror himself is probably unaware.
63 Nev. 118, 173 (1946) State v. McKay
it quietly, but none the less effectively, impresses itself upon the subconscious mind and
creates there an influence of which the juror himself is probably unaware.
We quote briefly from the opinion in Hempton v. State, supra:
It does not satisfy the exception for jurors to say that nothing occurred calculated to
prejudice them. The court must be able to say that independent of the notions of the guilty
parties, and must, before doing so, be satisfied beyond a reasonable doubt that such is the
fact, keeping in mind how easily persons may be influenced by their environment without
being conscious of it. The reading of the newspaper accounts and comments upon the trial
was highly calculated to influence the minds of the jurors.
In State v. Strodemier, 41 Wash. 159, 83 P. 22, 111 Am. St. Rep. 1012, it is said in the
opinion:
In order to avoid the misconduct of this juror, the state filed affidavits of several of the
jurors, to the effect that the juror (who went with the bailiff to get a drink) was the last to
consent to a verdict of guilty; and it is contended for that reason that the misconduct of the
juror was without prejudice. But the rule seems to be that, where misconduct is admitted,
jurors cannot be heard to deny its prejudicial influence. (Citing: People v. Chin Non, 146
Cal. 561, 80 P. 681; People v. Stokes, 103 Cal. 193, 196, 37 P. 207, 42 Am. St. Rep. 102;
People v. Azoff, 105 Cal. 632, 634, 39 P. 59.)
In People v. Stokes, supra, an apt quotation from Woodward v. Leavitt, 107 Mass. 453,
466, 9 Am. Rep. 49, occurs:
But where evidence has been introduced tending to show that without authority of law,
but without any fault of either party or his agent, a paper was communicated to the jury which
might have influenced their minds, the testimony of the jurors is admissible to disprove that
the paper was communicated to them, though not to show whether it did or did not influence
their deliberations and decisions. A juryman may testify to any facts bearing upon the
question of the existence of the disturbing influence, but he cannot be permitted to testify
how far that influence operated upon his mind."
63 Nev. 118, 174 (1946) State v. McKay
any facts bearing upon the question of the existence of the disturbing influence, but he cannot
be permitted to testify how far that influence operated upon his mind. [103 Cal. 193, 37 P.
209.]
23. In view of the fact that the authorities are almost unanimous in excluding from
evidence affidavits such as that of the jurors in the instant case (marked Exhibit C, as a
group, and admitted by the trial court), in which they attempted to state their condition of
mind and that they were not influenced by the shackling, this court believes that such
affidavits are conjectural and are not competent evidence to show the absence of any
prejudicial influence upon their minds, as a result of the shackling of the appellant, that they
should not have been admitted in evidence by the trial court upon the motion for a new trial,
and that their admission was error. Appellant's assignment of error VI was well taken.
Appellant's remaining assignment of error confronts us with the final, decisive question
upon this appeal: Did the trial court err in denying appellant's motion for a new trial? The
grounds upon which the said motion was made were: (1) That the verdict was not supported
by sufficient evidence, but was contrary to the evidence; (2) that the defendant could not be
convicted on the uncorroborated testimony of an accomplice; and (3) that the court's refusal
to grant defendant's motion to remove the handcuffs with which defendant was shackled in
the courtroom during the entire trial was prejudicial to the defendant and in violation of his
constitutional right to a fair and impartial trial before a jury, and that the refusal to grant said
motion restrained defendant from the use of his limbs, which confused and embarrassed his
mental faculties, and upon the further ground that the court had the sole discretion in
determining whether or not the defendant should be shackled and that such shackling was not
within the discretion of the sheriff, which reason was given by the court in denying
defendant's motion to be released from his shackles while in the courtroom and during the
trial of said defendant."
63 Nev. 118, 175 (1946) State v. McKay
his shackles while in the courtroom and during the trial of said defendant.
24. This court has hereinbefore indicated its opinion as to the sufficiency of the evidence
to sustain the verdict, and as to the handcuffing not being, under the facts and circumstances
confronting the trial judge at the time of his ruling, an abuse of the court's discretion. In
regard to the second ground of the motion, to the effect that the appellant could not be
convicted upon the uncorroborated testimony of an accomplice, this ground evidently was
based upon the assumption that Kenneth Petsch was an accomplice. The opinion of this court,
in regard to that alleged ground of the motion for a new trial, is that there is no evidence in
the record justifying even an inference that Kenneth (Kelly) Petsch was an accomplice. The
substance of all evidence relevant to that question clearly establishes that he was not. His
action, even though grossly intoxicated at the time, in trying to get between McKay and
Flindt and stop the beating of Flindt, his being knocked down by McKay for such
interference, the action he took at the first opportunity reasonably available to him to
communicate with his friend, Irvin Blanchard, as to what had occurred, his repeated
expressions of concern as to Flindt's condition, his action in telling Blanchard what occurred,
at his first opportunity away from McKay's hearing, his taking Blanchard and Murray to the
scene of the crime, where they found Flindt's dead body, and his early reporting of the facts
and circumstances to the police, all tend to prove, and do satisfactorily establish, his
innocence as to any complicity whatever in the criminal acts of the appellant. Both the
appellant and Petsch testified that Petsch received no part of the money taken from Flindt's
body. Petsch was the unfortunate victim of circumstances, in being in the position in which
he was in, when the killing occurred.
Taking from the trial court the right to base that court's ruling to any extent upon the
evidence contained in the affidavit of Sheriff Ray Root as to prior alleged offenses of the
appellant and as to his alleged efforts to effect an escape, and in the affidavits of the trial
jurors to the effect that they were not influenced by seeing the appellant shackled in the
courtroom, would the trial court, in ruling upon the motion for a new trial, have ruled as it
did, and would it have been justified in so ruling, upon the basis solely of the legal
evidence admitted on the trial, and upon the law as applied to such evidence?
63 Nev. 118, 176 (1946) State v. McKay
offenses of the appellant and as to his alleged efforts to effect an escape, and in the affidavits
of the trial jurors to the effect that they were not influenced by seeing the appellant shackled
in the courtroom, would the trial court, in ruling upon the motion for a new trial, have ruled
as it did, and would it have been justified in so ruling, upon the basis solely of the legal
evidence admitted on the trial, and upon the law as applied to such evidence? The functions
of the trial court, under the law, when a new trial is requested upon the ground of
insufficiency of the evidence to justify the verdict, make it the duty of the trial judge to weigh
the evidence with the utmost care and scrutiny, especially when some influence that may have
operated prejudicially has had the opportunity to influence the minds of the jurors. The trial
judge, in order to test whether or not the verdict is in accordance with justice, fairness and
right, and to test, in practical effect, whether or not the trial has been fair and impartial,
should determine whether the verdict the jurors have reached is fully justified by the facts and
circumstances comprising the evidence and by the law under the court's instructions. If the
trial judge correctly finds that it is, this finding negatives the idea that prejudice may have
influenced the jurors. It is by their acts in the performance of their duties, proving that they
have followed the evidence and the law, and not by anything they may say in affidavits, by
which their condition of mind may be judged.
It was, especially, in order that we might determine and demonstrate whether or not the
court's ruling, in denying the motion for a new trial, was justified, particularly, in view of the
prejudicial influence which might have resulted from permitting the appellant to remain
handcuffed in the courtroom in the presence of the jurors, that we have felt impelled to detail,
in this opinion, the evidence to an extent rendering the opinion unusually and regrettably
voluminous. Notwithstanding the fact that we have found, from the record, substantial
evidence to sustain the verdict, we would still feel it our duty to reverse the judgment if it
appeared from the evidence upon the basis of any reasonable hypothesis, that the
appellant could have been not guilty of murder in the first degree.
63 Nev. 118, 177 (1946) State v. McKay
feel it our duty to reverse the judgment if it appeared from the evidence upon the basis of any
reasonable hypothesis, that the appellant could have been not guilty of murder in the first
degree. If it so appeared, it would then be reasonable to conclude that the shackling had
operated, prejudicially, to influence the verdict, and had resulted in denying to appellant a
substantial right, namely, the right to a fair and impartial trial. Even though the facts, in our
view, justified the court's ruling as to the removal of the handcuffs, at the time such ruling
was made, nevertheless, if permitting the handcuffs to remain operated prejudicially, this
court, in ruling upon the correctness of the trial court's order in denying the motion for a new
trial, should reverse the judgment. Only by a most careful consideration of all the evidence
have we been able properly to test the correctness of such ruling.
This court is convinced, from the evidence in this case, after a very careful consideration
of all the evidence, as disclosed by the record, and from the proper application of the law to
the facts, that the appellant was so clearly and convincingly proven guilty of murder in the
perpetration of robbery, that the jurors were fully justified, from the evidence and from that
alone, in finding him guilty of murder in the first degree. This court knows there are errors in
the record on the part of the trial court in having admitted the affidavit of Sheriff Ray Root
and the affidavits of the jurors. Shall we conclude that the trial judge's ruling in denying the
motion for a new trial, which was, in our judgment, correct, would not have been reached by
him except for the influence of the affidavits erroneously admitted in evidence? We believe
that, if he could have been shown at the time he ruled, that these affidavits could not be
considered, that, with them removed from the case, he would necessarily have reached the
same conclusion he did reach, as would the jurors had the appellant never been in handcuffs
before them. This court must presume that the trial court, if that court were ruling with the
objectionable affidavits eliminated, would have done its duty under the evidence, which
clearly established the defendant's guilt of murder in the first degree, and, therefore,
would have concluded, not only that the evidence was not insufficient to justify the
verdict, but was inconsistent with any reasonable hypothesis under which appellant
would have been guilty of a lesser offense, or a lesser degree of murder, and that the trial
court would have so ruled irrespective of the incompetent evidence erroneously admitted.
63 Nev. 118, 178 (1946) State v. McKay
affidavits eliminated, would have done its duty under the evidence, which clearly established
the defendant's guilt of murder in the first degree, and, therefore, would have concluded, not
only that the evidence was not insufficient to justify the verdict, but was inconsistent with any
reasonable hypothesis under which appellant would have been guilty of a lesser offense, or a
lesser degree of murder, and that the trial court would have so ruled irrespective of the
incompetent evidence erroneously admitted. As to the matters included in the Root affidavit,
the appellant had admitted on the trial, in his testimony, having served a sentence in the Utah
penitentiary for second degree burglary, and also that he was convicted by court martial for
army desertion and had escaped from Lemoore Army Base. The fact of the attempted escape
from the Washoe County jail had been testified to at the trial by Edwin Gily. As to these
matters there was no conflict in the evidence and no controversy. The affidavit was, therefore,
merely cumulative as to all matters therein, except the alleged letter from appellant to one
Mary Davis asking her to send him hack saw blades, and the defendant did not contradict
that. And the trial judge had stated, upon ruling upon the motion to remove the shackles, that
he had knowledge of that fact. As to the affidavits of the jurors that they were not prejudiced
by the handcuffing and would have reached the same result irrespective thereof, the court did
not need their affidavits in order correctly to reach the conclusion they had not been
prejudicially influenced, for the reason that the legal evidence clearly was such that they
could not, from that alone, have reached, reasonably, any other conclusion; hence, their
affidavits, which were incompetent and have to be excluded to avoid establishing a dangerous
precedent as to future cases in which the situation and facts might be different, could add
nothing to what the court already must have known by careful comparison of the evidence
with the verdict.
25. This court believes it was the duty of the trial court to deny the motion for a new
trial, and that, under the admitted evidence, his ruling in so doing would have been the
same as it was if the affidavits had been eliminated prior to the court's ruling and,
therefore, that the erroneous admission in evidence of the Root affidavit and the
affidavits of the jurors was immaterial, and had no prejudicial effect upon the result, or
upon any right of the appellant.
63 Nev. 118, 179 (1946) State v. McKay
court to deny the motion for a new trial, and that, under the admitted evidence, his ruling in
so doing would have been the same as it was if the affidavits had been eliminated prior to the
court's ruling and, therefore, that the erroneous admission in evidence of the Root affidavit
and the affidavits of the jurors was immaterial, and had no prejudicial effect upon the result,
or upon any right of the appellant.
This court further believes that the verdict, unfortunate as it is from the standpoint of the
defendant, was the only verdict which the jury could conscientiously render, if guided solely
by the evidence, the law, and the desire to do justice. After an examination of the entire case,
it appears that no error complained of, and no error we perceive in the record, has resulted in
a miscarriage of justice, or actually prejudiced appellant in respect to a substantial right.
Section 619 of An Act to regulate proceedings in criminal cases in this state and matters
with relation thereto, approved March 17, 1911, effective January 1, 1912, said section being
section 11266, Nevada Compiled Laws 1929, vol. 5, provides that:
No judgment shall be set aside, or new trial granted, in any case on the ground of
misdirection of the jury or the improper admission or rejection of evidence, or for error as to
any matter of pleading or procedure, unless in the opinion of the court to which application is
made, after an examination of the entire case, it shall appear that the error complained of has
resulted in a miscarriage of justice, or has actually prejudiced the defendant, in respect to a
substantial right.
No prejudicial error appearing in the record, the judgment and order appealed from 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 said judgment.
63 Nev. 118, 180 (1946) State v. McKay
March 19, 1946. 167 P.2d 476.
1. Criminal Law.
A defendant must be brought to the bar without irons or in any manner of shackles
or bonds unless there is evident danger of escape.
2. Criminal Law.
Where trial court had, at time of ruling upon defendant's motion for removal of
handcuffs, sufficient knowledge and information to justify conclusion that defendant
was a dangerous and desperate man and in apprehending that defendant, if handcuffs
were removed, might at any time, even at time of trial, attempt to escape and might
resort to any available means of physical violence to accomplish such escape, court
properly denied motion.
3. Criminal Law.
Upon motion to remove handcuffs from a defendant during course of trial, trial court
had right to take into consideration knowledge acquired outside the formal evidence
under the maxim that what judges know as men, having common knowledge, they
cannot ignore as judges.
4. Criminal Law.
While supreme court, on issue of sufficiency of evidence to support verdict, does not
weigh evidence but determines merely if there is substantial evidence to support
verdict, on issue of prejudice to defendant and denial of a fair trial by the handcuffing
of defendant in presence of jury, supreme court weighed all of the evidence to
determine its sufficiency to prove defendant's guilt beyond a reasonable doubt. Comp.
Laws, sec. 11266.
5. Criminal Law.
Supreme court will reverse a conviction for first degree murder for the shackling of
defendant in the presence of jury notwithstanding that it finds substantial evidence to
sustain the verdict, if it appears from the evidence upon the basis of any reasonable
hypothesis that defendant could have been not guilty of such offense. Comp. Laws, sec.
11266.
6. Criminal Law.
Where evidence was such that, if jury had not found defendant guilty of first-degree
murder and trial court so adjudged, justice would have miscarried in defendant's favor,
defendant was not denied a fair trial because he was handcuffed in the presence of jury.
7. Criminal Law.
Defendant has no right except to be judged upon competent, relevant and material
evidence and to have properly applied thereto correct principles of law. Comp. Laws,
sec. 11266.
63 Nev. 118, 181 (1946) State v. McKay
Petition denied.
OPINION
In this court's opinion upon the appeal in the instant case, we have treated so fully all
matters embodied in the five alleged grounds set forth in appellant's petition for a rehearing,
that it would be superfluous and inappropriate to repeat a detailed presentation of them
herein.
1. The appellant, in his petition, concedes that there is no unqualified rule prohibitory of
shackling, but ridicules the idea that his attempt to escape from the Washoe County jail, on
the early morning of January 22, 1944 (two days before the commencement of the trial), was
sufficient basis upon which to conclude that there was evident danger of his escape, within
the meaning of the qualifying clause of the rule as stated by Sir William Blackstone, quoted
on page 408 of 165 P. 2d, and which is as follows: The prisoner must be brought to the bar
without irons or in any manner of shackles or bonds, unless there be evident danger of escape,
and then he may be secured with irons. 4 Bl. Com. 332.
On page 7 of the petition for rehearing, it is stated: "* * * What did the trial court have
before it to warrant the denial to appellant of so important a right as to appear before the
jury free of all manner of shackles or bonds?
63 Nev. 118, 182 (1946) State v. McKay
* * * What did the trial court have before it to warrant the denial to appellant of so
important a right as to appear before the jury free of all manner of shackles or bonds? The
tampering with an inner lock of the jail!
What are the facts as disclosed by the record? The testimony of Edwin Gily, a deputy
sheriff of Washoe County, at the trial, was, substantially, that Gily and one Gray were in the
said jail and heard an unusual noise inside the tank; that they sat there and talked a few
minutes, and Gily took off his shoes and sneaked over to where he could look inside the tank,
and he could see the appellant trying to pry the control box open; that the control box is a
lever that opens the main door to the tank, in which the appellant and others were confined;
that the appellant had an iron bar, approximately three feet long by three-eighths of an inch
wide, and that when the witness looked in, the appellant was prying on the control box; that if
he had succeeded in prying the door of the control box open, he might have opened the door
of the tank, in which he and others were confined; that he damaged the control box to the
extent that they were unable to open it with a key, and that it was bent out of shape, and Gily
had to get a locksmith to open it.
This testimony of Gily was uncontradicted by the appellant, although he testified at
considerable length at the trial.
On page 45 of this court's opinion upon the appeal in this case, we concluded that the trial
court had, at the time of ruling upon the appellant's motion for the removal of the handcuffs,
sufficient knowledge and information to justify the conclusion, that the appellant was, at the
time of said ruling, * * * a dangerous and desperate man, and that the sheriff, his deputies and
the court were reasonably justified in apprehending that the appellant, if the handcuffs were
removed, might at any time, even at the time of the trial, attempt to escape, and that he might
resort to any available means of physical violence to accomplish such escape. The appellant,
by his own conduct, was the primary cause of any prejudice his being handcuffed might
entail.
63 Nev. 118, 183 (1946) State v. McKay
by his own conduct, was the primary cause of any prejudice his being handcuffed might
entail. In view of the exceptional facts and circumstances existing, and within the knowledge
of the trial judge, * * * at the time of the ruling, we cannot conscientiously say that the trial
court abused its discretion in denying the motion to remove the handcuffs.
We can perceive no error in the conclusion we have thus reached, and no substantial
reason is shown why we now should depart from it.
In view of the facts as to appellant's prior criminal record, which he admitted, and as to his
attempt to escape from the Washoe County jail on January 22, 1944, the appellant had
forfeited the right to be free from handcuffs at his trial. The conclusion of the trial court that
he was a desperate and dangerous man was amply warranted by the facts involved in his
record. That he was willing, for paltry, selfish gain, to invade the rights of others and take,
feloniously, that which did not belong to him, was shown by his conviction of burglary in
Utah, and his failure to claim that he had been wrongfully convicted. After being paroled and
taken into the armed forces of his country, he evidenced lack of patriotism and loyalty, by
deserting, and upon being apprehended and convicted therefor, he disclosed an utter disregard
for duly constituted authority, by escaping from the Lemoore Army Base, in California.
3. Furthermore, on the day of the wanton and willful murder of Robert Flindt, by the
appellant, he had voluntarily admitted to Chief of Police Fletcher that this cruel killing was
for the purpose of robbery; that he dragged Flindt behind the picket fence because he did not
want any one to see him rob Flindt, and that he wanted the money to gamble, pay his room
rent, and eat. This admission to Chief Fletcher, having occurred in the presence of the district
attorney of Washoe County, and others, had undoubtedly become known to the trial judge
before he ruled as to removing the handcuffs. As said by Judge Wanamaker, in Barnett v.
State, 104 Ohio St.
63 Nev. 118, 184 (1946) State v. McKay
St. 298, on page 310, 135 N.E. 647, 651, 27 A.L.R. 351 (quoted on pages 40 and 41 of our
opinion upon the appeal in the instant case): What we know as men, having common
knowledge, * * * we cannot ignore as judges.
In addition to knowledge of this cruel murder of Flindt, which showed appellant bereft of
all respect for the rights of others, and even unresponsive to the voice of humanity, the trial
judge knew of appellant's said attempt to escape from the Washoe County jail, January 22,
1944, two days before the commencement of his trial, as above set forth.
Could it reasonably be concluded, in view of these facts, that the appellant was other than
a desperate criminal, an enemy of human society, utterly untrustworthy and devoid of
ordinary sensibility to humane instincts? Could it be believed, in view of the admitted facts,
that the appellant was not so completely selfish and ruthless that, in order to gain his liberty,
and perhaps his life, he would resort to any desperate means to accomplish his purpose, that
might become available to him? The answer is clear. Neither the trial judge, nor the officers
in whose charge the appellant was, could be reasonably expected to take undue risks as to
their own safety with a man of appellant's character. Because of his own criminal violations
of the rights of others, there no longer remained to him any right whatever, under the rule
relative to shackling, as universally interpreted, to be free from shackles or bonds at his trial.
The ruling of the trial court, therefore, declining to order the removal of the handcuffs from
appellant's wrists, deprived the appellant of no substantial right.
Appellant's alleged ground IV, as stated in his petition for rehearing, is as follows: In
denying appellant's motion to have the handcuffs removed, appellant was prejudiced before
the jury and was thereby denied his constitutional guarantees to a fair and impartial trial as
guaranteed by the Constitution of Nevada and the United States Constitution.
63 Nev. 118, 185 (1946) State v. McKay
4. It was, precisely, that we might clearly determine whether permitting appellant to be
handcuffed before the jury, had operated prejudicially to impair his right to a fair and
impartial trial, that in considering this case upon appeal, we examined fully and weighed
carefully, the evidence as disclosed by the record. We were not required to do this in order to
rule upon the question of the sufficiency of the evidence to justify the verdict. We stated, on
page 35 of our opinion upon the appeal, the long-established rule in this state in that regard,
and cited, in support thereof: State v. Van Winkle, 6 Nev. 340; State v. Mills, 12 Nev. 403;
State v. Buralli, 27 Nev. 41, 71 P. 532; State v. Hunter, 48 Nev. 358, 232 P. 778, 235 P. 645;
State v. Boyle, 49 Nev. 386, 248 P. 48; and State v. Watts, 53 Nev. 200, 296 P. 26.
Realizing, however, that it was entirely possible that some juror or jurors, observing the
appellant handcuffed, could have become thereby prejudiced against him to the extent that
they might have convicted upon less evidence, or in a higher degree, than if the handcuffs
were not apparent, this court diligently scrutinized and carefully weighed, all of the evidence,
with the intention of reversing the judgment unless the evidence was not merely substantial,
but sufficient to prove, beyond a reasonable doubt, the guilt of the appellant of murder in the
first degree. This intention we stated, on pages 56 and 57 of our said opinion, as follows:
Notwithstanding the fact that we have found, from the record, substantial evidence to sustain
the verdict, we would still feel it our duty to reverse the judgment if it appeared from the
evidence, upon the basis of any reasonable hypothesis, that the appellant could have been not
guilty of murder in the first degree.
Logically, there appears little reason why, in the case of a defendant shackled because of a
necessity created by his own misconduct, we should weigh the evidence to a far greater
extent, to prevent injustice, than in the case of a defendant not guilty of misconduct of such
nature as to render shackling reasonably necessary.
63 Nev. 118, 186 (1946) State v. McKay
Our only reason for assuming the additional burden of weighing the evidence fully, in
order to determine with certainty, that is, beyond a reasonable doubt, the guilt or innocence of
appellant of first-degree murder, was that we desired to do all possible, consistent with the
proper discharge of the duties of this court, to safeguard the right of one accused of crime,
regardless of the enormity of his guilt, to a fair and impartial trial as guaranteed by the
constitution and laws of the State of Nevada and the constitution of the United States, and to
that end, determine, so far as this court could, whether the shackling had operated
prejudicially to produce a result contrary to law and to the just rights of the appellant.
However, Mr. Lohse, the attorney for the appellant, apparently failing to realize the extent
to which we went in order to make sure that the verdict finding appellant guilty of murder in
the first-degree was fully justified by the evidence, and by that alone, proving his guilt in such
degree beyond a reasonable doubt, on page 15 of the petition for rehearing, after quoting the
foregoing paragraph from pages 56 and 57 of our said opinion, has stated: If this is now to
be laid down as the law of Nevada, then, would it not follow that any man hereafter tried and
found guilty of first degree murder, by substantial evidence to support the verdict, such
verdict would stand regardless of any violation of his constitutional rights?
5. What we stated means just the opposite of counsel's conclusion. We said we would still
feel it our duty to reverse the judgment, notwithstanding we had found substantial evidence
to sustain the verdict, if it appeared from the evidence upon the basis of any reasonable
hypothesis, that the appellant could have been not guilty of murder in the first degree. (Italics
ours.)
We would have been justified in reversing the judgment, if the evidence failed to show
such guilt of murder in the first degree, beyond a reasonable doubt, upon the theory that the
jury, apparently having convicted on less evidence than they should have required, or in a
higher degree than the evidence justified, might have been prejudicially influenced by
seeing appellant handcuffed before them.
63 Nev. 118, 187 (1946) State v. McKay
evidence than they should have required, or in a higher degree than the evidence justified,
might have been prejudicially influenced by seeing appellant handcuffed before them.
6. We found, however, after fully and carefully weighing the evidence, that it clearly and
convincingly proved the appellant's guilt of murder in the first degree beyond a reasonable
doubt.
It follows that, by the verdict of the jury finding appellant guilty of murder in the first
degree, and by the judgment of the trial court pronounced thereon, there was no miscarriage
of justice, and that if the jury had not so found, and the trial court so adjudged, justice would
have miscarried in appellant's favor.
The jurors having done no more than their sworn duty, it cannot be presumed in favor of
appellant that if appellant had been free from handcuffs, they would have done less than their
duty, and that they permitted the fact that they observed appellant in handcuffs before them,
or any other extrinsic influence, to enter into their deliberations or to influence, to any extent,
their verdict. The verdict being right, and in accord with justice, the shackling did not operate
prejudicially to deprive appellant of any right. (Italics ours.) The appellant, of course, had no
right to have justice miscarry in his favor. No person has that right.
We have hereinbefore stated, and in our opinion upon the appeal, in effect held, that the
trial court, by its ruling declining to order the handcuffs removed, did not deprive appellant of
any substantial right; that the jurors, having reached the only result which they could have
reached in accordance with their sworn duty, were not prejudicially influenced by the
handcuffing of appellant, and that, by their verdict, they did not deprive him of any
substantial right; and that he was accorded a fair and impartial trial within the meaning of the
constitution of Nevada, and the constitution of the United States.
On page 14 of the petition for rehearing, it is stated: "It is earnestly and strongly urged
that irrespective of whether the verdict the jurors reached was fully justified by the facts
and circumstances comprising the evidence and by the law under the court's instructions,
that there is no formula in the law by which it can be determined to what degree the
appellant was prejudiced by virtue of his having been handcuffed during his trial.
63 Nev. 118, 188 (1946) State v. McKay
It is earnestly and strongly urged that irrespective of whether the verdict the jurors
reached was fully justified by the facts and circumstances comprising the evidence and by the
law under the court's instructions, that there is no formula in the law by which it can be
determined to what degree the appellant was prejudiced by virtue of his having been
handcuffed during his trial.
In spite of the fact that this Honorable Court believes that there is sufficient evidence to
substantiate the verdict, the fact remains, that if the trial court could be said to have correctly
found that the verdict was justified, appellant submits that such finding in itself could not
logically negative the idea that prejudice may have influenced the jurors, since there is no
conceivable yardstick in the law to judge the degree of prejudice in the minds of the jurors.
To be able to conclusively determine this question, one would, it is seriously and respectfully
submitted, have to possess omnipotent powers!
7. If by this the appellant means that he has some right beyond the right to be judged only
upon competent, relevant and material evidence, and to have properly applied thereto correct
principles of lawsome fanciful right to play upon the sympathy or credulity of the jurors,
and perhaps, by false testimony, and pretended innocence, to endeavor to have them depart
from their sworn duty, and thereby defeat justice, and of which the handcuffing may have
rendered him less capable, with that we are not concerned.
This court said, in its opinion in State v. Skaug, 63 Nev. 59, 161 P. 2d 708, at page 711:
An aged lady after spending a pleasant social evening with a neighbor, on returning to the
shelter of her home alone in the late hours of the night, was set upon by a cold blooded villain
and slain under circumstances of revolting atrocity. Besides the death wound inflicted with
her husband's revolver, she was brutalized by clubbing, her valuables were stolen and her
body left broken and bleeding upon the floor of the ruined home. Hence, in the presence of
such enormous and clearly proven guilt we will not pause to speculate as to whether, if
evidence of other offenses had been omitted the jury might have returned a verdict
carrying a lesser penalty.
63 Nev. 118, 189 (1946) State v. McKay
such enormous and clearly proven guilt we will not pause to speculate as to whether, if
evidence of other offenses had been omitted the jury might have returned a verdict carrying a
lesser penalty. Section 11266, N.C.L., prevents a reversal.
In the Skaug case, there had been error in admitting in evidence certain testimony as to
other offenses; but this court found, in effect that, notwithstanding such error, the guilt of
Skaug of murder in the first degree had been clearly proven by competent evidence, beyond a
reasonable doubt, and therefore, there was no miscarriage of justice, nor deprivation of a
substantial right.
In the instant case, there was no error in declining to order the removal of the handcuffs,
for the reasons fully stated herein and in our opinion upon the appeal. The crime committed
by the appellant, and of which he has so clearly been proven guilty, was an atrocious and
coldblooded murder. He literally beat and kicked to death, without provocation and without
warning, and solely for the purpose of robbery, a man with whom he had pretended social
companionship only a short while before. We may well paraphrase, and apply to the instant
case, certain language of this court in the Skaug case, as follows: Hence, in the presence of
such enormous and clearly proven guilt we will not pause to speculate as to whether, if the
handcuffing of appellant' had been omitted the jury might have returned a verdict carrying a
lesser penalty. Section 11266 N.C.L. prevents a reversal.
We have quoted fully section 11266, vol. 5, N.C.L., on page 59 of our opinion upon the
appeal in the instant case, and it is needless to repeat same herein, but we are bound by its
provisions, as we were in the Skaug case.
Rehearing denied.
63 Nev. 190, 190 (1946) In Re Asterbloom's Adoption
In the Matter of the Adoption of ROBERT ALAN
ASTERBLOOM, a Minor.
LOUIS C. ASTERBLOOM, Appellant, v. PETER A. BURKE and ETHEL L.
BURKE, His Wife, Respondents.
No. 3441
January 16, 1946. 165 P.2d 157.
1. Courts.
An order of the juvenile court was not essential to jurisdiction of district court of proceeding for
adoption of minor child of divorced parents by second husband of child's mother to whom child's custody
was awarded by divorce decree. Comp. Laws, sec. 9478, as amended by Stats. 1933, c. 16.
2. Adoption.
Jurisdiction of proceeding for adoption of minor child is predicated upon consent of natural parents or
its procedural equivalent abandonment. Comp. Laws, sec.9481.
3. Adoption.
The legislature could prescribe what acts or conduct would dispense with a parent's consent to
adoption of minor child. Comp. Laws, sec. 9481.
4. Adoption.
Mother's consent to adoption of minor child and father's abandonment of child were sufficient without
notice to father to give court jurisdiction of proceedings for adoption of minor child of divorced parents.
Where father having declared intention to forego all parental duties and relinquish all parental claims
to minor child whose custody was awarded to mother by divorce decree severed all connection with
child, and more than five years had elapsed before he filed motion to set aside order of adoption by
mother's second husband, father was estopped by abandonment from challenging constitutionality of
statute dispensing with notice to him of adoption proceedings. Comp. Laws, sec. 9481.
6. Constitutional Law--Estoppel.
Neglect and refusal to perform the natural and legal obligations of care and support constitute the
abandonment contemplated by statute dispensing with consent of a parent who has abandoned child to
its adoption or notice to such parent of proceeding for adoption, and it is not necessary that child be left
in a destitute condition. Comp. Laws sec. 9481.
Appeal from Second Judicial District Court, Washoe County; Clark J. Guild, Presiding
Judge.
Proceeding in the matter of the adoption of Robert Alan Asterbloom, a minor, by Peter A.
Burke, to which Ethel L. Burke, his wife and mother of the child, consented. From an order
denying his motion to set aside the order of adoption, Louis C. Asterbloom, father of the child
appeals. Order affirmed.
Priest and Priest, of Reno, for Appellant.
Melvin E. Jepson and C. Lester Zahniser, both of Reno, for Respondent.
OPINION
By the Court, Ducker, J.
The appellant, Louis C. Asterbloom, is the father of Robert Alan Asterbloom, a minor
child. Ethel L. Burke, the mother of said minor, was granted a decree of divorce on July 31,
1937, in the Second judicial district court, county of Washoe, in an action brought by her
against appellant. Prior to the granting of the decree of divorce appellant and his wife entered
into a written agreement and amendment to the agreement providing, among other things, a
property settlement, divided custody of the child and reasonable opportunity afforded the
appellant to visit his child each week and the privilege of having said child spend with him at
least two weekends to be not less than 2 1/2 days, and to have the child spend Easter
vacations with him. In granting the decree of divorce the court ratified the agreement in all
respects except as to divided custody of the child and awarded the custody to the mother. The
agreement for a payment of $15 per week by appellant for the maintenance and education of
the minor child was ratified. The court retained jurisdiction and reserved the right to make
such further orders for the custody and maintenance of the child as further circumstances may
require.
The mother continued to reside in Reno where the divorce was obtained, and on December
17, 1937, remarried. The stepfather of the child, Peter A. Burke, respondent herein, on April
27, 1939, petitioned said court for leave to adopt said minor, who at that time was 9 years of
age. The mother consented thereto, and the court in its order of adoption made on said
last-mentioned date found that the father had abandoned the child.
On October 17, 1944, appellant filed a notice of motion in said court accompanied by his
affidavit, for an order setting aside and nullifying the order of adoption, which came on for
hearing on November 21, 1944, and resulted in an order denying the motion. The appeal is
taken from this order.
On the hearing of the motion appellant introduced in evidence the complete file of the
divorce proceedings, including property settlement, custody and support agreement, and of
the adoption proceedings. He then rested his motion. Melvin E. Jepson, the attorney for Ethel
L. Burke in the divorce proceedings, in the adoption proceedings, and for the respondent on
the motion, testified in his behalf, as did Mrs. Burke. It appears from the former's testimony
that on August 11, 1937, he wrote to appellant explaining how he had been unable to get the
court in the divorce proceedings to ratify the agreement as to a divided custody of the child;
that on December 16, 1937, appellant came to his office and he attempted to arrange a
meeting between him and his former wife to discuss the future welfare of the child; that the
appointment was made for the afternoon of that day. The former Mrs. Asterbloom appeared
but appellant did not. He called the witness by telephone and said: I am not going to come to
your office for the conference as planned and wanted to call you up and let you know I would
not be there so you would not wait for me any longer. I have thought this whole matter over
and I have decided to drop out of the picture entirely. I am going away and you will not know
my address in the future nor where I will be.
future nor where I will be. Mrs. Asterbloom will not know where I can be reached.
The witness stated that he remonstrated with him as it concerned his son Robert, but the
appellant replied, saying, that what he had said would go for his son Robert also, and that he
would not hear from him nor would he be able to get in touch with him. Witness further
stated that appellant said he had heard that Mrs. Asterbloom was about to be married and that
he was all burned up and washed up about it. Appellant did not come to his office.
The witness testified that on December 30, 1937, he addressed a letter to appellant telling
him that it was unfortunate that he arrived in Reno about the time of his former wife's
marriage as it prevented working out an understanding in regard to his son. In the letter he
also called appellant's attention to the fact that his former wife had not received the last
weekly allowance and requested him to send the check to his office; that he had received no
communication from appellant since the telephone conversation. On cross-examination the
witness testified that no notice was sent to appellant through his office of the adoption
proceedings. In answer to a question from the court the witness testified that his telephone
conversation with appellant was all laid before the presiding judge in the adoption
proceedings by the lady who is now Mrs. Burke, and that the judge proceeded to take her
testimony as to what had taken place since the divorce was entered.
Among other things not necessary to be stated, Ethel L. Burke, the former Mrs.
Asterbloom, testified that she lived in Reno. That appellant lived up to his agreement as to
payments for the support of his son, Robert, from the time of the divorce to the time of her
remarriage; that the last time she received any payment for the son from appellant was on the
day he was in Reno, December 16, 1937; that the check was dated on the 17th of December,
1937. She confirmed the testimony of Jepson as to the appointment with appellant in his
office on December 16, 1937, and as to the telephone conversation.
December 16, 1937, and as to the telephone conversation. She testified that she had not
received any communication by any means from appellant since December 16, 1937,
although she had written to him at least three or four times with regard to making payments,
and that the child had received no communication from him; that she never at any time after
her remarriage said or suggested to the child that he should not write to his father, but on the
contrary was anxious to bring about an amicable relation between the father and the child
regardless of how the father felt about it; that on the 10th of September, 1937, due to
correspondence between her and the appellant, the latter brought the child from a camp by
automobile to her home at Reno and left him with her and that the child has been in her
constant care ever since.
It appears from evidence that the camp referred to is a summer camp in Connecticut where
the child was under her control. The witness further testified that the payments of $15 per
week ordered in the divorce decree were of substantial benefit, as she was only making about
$100 plus a small income from renewals of insurance premiums which she had previously
sold and that it was necessary for her to maintain a home for the child and employ a maid at
$8 per week while she was away at her work; that she was not able to support the child on her
income without the help of appellant. She stated that when appellant was in Reno in
December, 1937, he did not make any demand for the child. In answer to questions by the
court she testified that at the time of the adoption she did not know appellant's whereabouts;
that as far as she knew he was not in the state of Nevada; that he knew that she lived in Reno
and that the child was with her. In answer to a question by the court, if in the adoption
proceedings somebody testified before the judge that appellant had abandoned the baby and
that she received no money from him for his support, she said: That is true. On cross
examination she was asked if at the time of filing the petition for adoption she knew the
address of appellant she answered that she had written a letter to him at Van Wick's but
got no response and that was the only address she knew of to write to; that at the time of
the filing of the petition for adoption she did not know that a letter written to appellant
would in all probability reach him; that none of the letters written by her to appellant
were returned to her; that at the time of the divorce she knew what business appellant
was in but did not know that he was still in that business at the time of the adoption.
adoption she knew the address of appellant she answered that she had written a letter to him
at Van Wick's but got no response and that was the only address she knew of to write to; that
at the time of the filing of the petition for adoption she did not know that a letter written to
appellant would in all probability reach him; that none of the letters written by her to
appellant were returned to her; that at the time of the divorce she knew what business
appellant was in but did not know that he was still in that business at the time of the adoption.
On cross-examination she identified three letters and two telegrams she had sent to appellant,
which were introduced in evidence. It appears from the evidence in the case that at the time of
the divorce appellant was a shoe manufacturer doing a large business and that when his
former wife lived with him in 1933 he had an income of about $10,000 per year.
The foregoing constitutes substantially all of the material evidence before the court when it
made and entered its order denying the motion for an order setting aside and nullifying the
order of adoption.
1. The principal points urged by appellant in this case are that the adoption statute does
not dispense with notice to a natural parent in adoption proceedings, and if construed
otherwise is unconstitutional. It is insisted that as appellant did not give his consent and had
no notice of the proceedings the court was without jurisdiction to make the order of adoption.
A great deal of argument has been made concerning section 9478 N.C.L. of the adoption
statute as amended in 1933, c. 16, but we are of the opinion that the facts of this case do not
bring it within the purview of any of the exceptions of that section. No order of a juvenile
court was involved herein, nor was any essential to give the court jurisdiction to make the
order of adoption. The case is governed, we think, by section 9481 N.C.L. of the adoption
statute, which reads: If the persons whose consent is necessary to the adoption of the child
are not within this state, their consent, in writing, if they be known and their whereabouts
can be ascertained, must be obtained and filed with the judge, duly executed and
acknowledged, in like manner as conveyances of real estate are required to be executed
and acknowledged; provided, that if the judge shall find that the person or persons whose
consent is required have abandoned such child, or if such persons are unknown, or their
whereabouts cannot be ascertained, then in that case the judge may, in his discretion,
proceed to make the order of adoption without such consent; but in that case it shall be
the duty of the judge to cause to appear before him, by citation or otherwise, the persons
in whose custody the child is, and may also bring before him, in his discretion, such of the
next friends of the child as he may deem proper, and shall examine them under oath, and
if he deem it for the best interest of the child, he shall make the order of adoption."
and their whereabouts can be ascertained, must be obtained and filed with the judge, duly
executed and acknowledged, in like manner as conveyances of real estate are required to be
executed and acknowledged; provided, that if the judge shall find that the person or persons
whose consent is required have abandoned such child, or if such persons are unknown, or
their whereabouts cannot be ascertained, then in that case the judge may, in his discretion,
proceed to make the order of adoption without such consent; but in that case it shall be the
duty of the judge to cause to appear before him, by citation or otherwise, the persons in whose
custody the child is, and may also bring before him, in his discretion, such of the next friends
of the child as he may deem proper, and shall examine them under oath, and if he deem it for
the best interest of the child, he shall make the order of adoption.
2-4. Here the court found that the appellant had abandoned his child, which under the
plain terms of the provision dispensed with his consent. Consent of or notice to delinquent
persons or person is not required by the section. Jurisdiction of the court is predicated upon
consent of the persons whose consent is necessary (in this case the natural parents) or its
procedural equivalent abandonment. The entire subject of adoption being one for appropriate
legislation, it was competent for the legislature to prescribe what acts or conduct would
dispense with a parent's consent to adoption proceedings. Therefore we hold that the presence
of these statutory factors in this case, the mother's consent and the father's abandonment, was
sufficient to confer jurisdiction on the court. 2 C.J.S., Adoption of Children, sec. 21, p. 387.
Appellant's counsel cite many cases in support of his contention that notice in this case
was essential to give the court jurisdiction to make the order of adoption. We will not
undertake to analyze them in detail and unnecessarily prolong this opinion. Suffice it to say
that in some of them notice was required by the particular statute, which, of course, made it
a jurisdictional requisite.
statute, which, of course, made it a jurisdictional requisite. As to those which hold notice
essential as to a parent who had abandoned a child, although not expressly required by the
adoption statute, we think the facts of this case will distinguish it from them.
It is argued extensively that if it was the intention of the statute that notice could be
dispensed with as to a parent who had abandoned a child, it is unconstitutional. Adoption
statutes dispensing with the consent of natural parents and notice to them have been held
constitutional. See 1 Schouler, Domestic Relations, sec. 720; 1 C.J. 1372; 2 C.J.S., Adoption
of Children, sec. 5, and cases referred to in the notes. As was said in Hersey v. Hersey, 271
Mass. 545, 171 N.E. 815, 818, 70 A.L.R. 518: The Legislature has wide discretion in
determining the acts or conduct of a parent which may forfeit this right to notice or dispense
with it.
5, 6. However, it is unnecessary to determine the question here, for the conduct of
appellant as shown by the record has been such as to preclude him from being heard in this
regard. In Jackson et ux. v. Spellman, 55 Nev. 174, 28 P.2d 125, 91 A.L.R. 1381, we
recognized that estoppel may operate against a delinquent parent in an adoption case. It is
well settled that estoppel may operate to cut off a right or privilege conferred by statute or the
constitution. 19 Am. Juris. 640; 12 C.J. 769; see also 16 C.J.S., Constitutional Law, sec. 88.
The abandonment in this case has been inveterate.
The undisputed evidence taken on the motion to set aside and nullify the order of adoption
proved a settled purpose on the part of appellant to forego all parental duties and relinquish
all parental claim to the child. He announced his intention in unequivocal language to his
former wife and her attorney on December 16, 1937, after he had failed to keep his
appointment with them to discuss the future welfare of the child. His conduct thereafter
conclusively proves that his express renunciation, which was followed by abandonment in
fact, was not idly made. He severed all connection with his child and willfully neglected to
pay any further weekly allowances for its support when such allowances were needful for
its care, maintenance and education, and he was amply able to pay.
and willfully neglected to pay any further weekly allowances for its support when such
allowances were needful for its care, maintenance and education, and he was amply able to
pay. He made no effort to communicate with his offspring, sent no token of affection or
remembrance, and all attempts to contact him in its behalf proved futile. Against his progeny
he had resolutely set his face. It appears that these facts were before the court when the order
of adoption was made. After almost seven years of such unnatural conduct appellant filed the
motion now under consideration. He made no appearance in person on the hearing of the
motion to give any excuse for his failure to provide, or to defend against the charge of
abandonment, or to express any feeling of repentance; thus depriving counsel for respondent
of the opportunity to cross-examine him as to any testimony he might have given and as to
the affidavit made in support of the motion. He was in default for many weekly allowances
but made no offer to pay any of them. His claim that he was justified in making no more
payments for his child's support and education because the mother by her remarriage had
created a condition preventing him from having the benefit of the visitations between himself
and child agreed upon, is a vain excuse. As if marital discord, hurt feeling, a desire for
retaliation or anything of the kind ought to deter a father who is able from contributing to his
child's support and education, and induce him to forsake it. Besides if the agreement was
breached by him as he claims, the court in which the divorce was granted was open to him for
redress at any time during the child's minority. It was not for him to do wrongful acts because,
as he claims, his former wife had not done right. In the meantime the petition for adoption
had been filed by respondent acting in good faith for the welfare of his wife's child, and the
order of adoption made. New obligations for its care, custody, maintenance and education
have been assumed, and ties of affection have been formed between the foster parent and the
adopted child.
child. If it should be suggested that he was entitled to notice in order to have an opportunity
to be heard on the charge of abandonment, it would be enough to reiterate that he had such
opportunity on the hearing of his motion to set aside and nullify the order of adoption, but
failed to appear and testify concerning it. Instead of pursuing the fair course he preferred to
stand off across the continent and rest his case on his affidavit made in New York after
having served notice that he would appear and give oral testimony on the hearing. As he did
not appear in the latter instance it is highly conjectural as to whether he would have appeared
in the first if he had received notice. Particularly is this so as an appearance at that time would
have been somewhat embarrassing by bringing him within the jurisdiction of the divorce
court when he was around $1,000 in arrears for child support. It is upon these facts that we
hold an estoppel in this case and are of the opinion that it meets the ends of justice.
Pertinently was it said by Brewer, J., in Chapsky v. Wood, 26 Kan. 650, 40 Am. Rep. 321:
* * * When reclamation is not sought until a lapse of years, when new ties have been formed
and a certain current given to the child's life and thought, much attention should be paid to the
probabilities of a benefit to the child from the change. It is an obvious fact, that ties of blood
weaken, and ties of companionship strengthen, by lapse of time; and the prosperity and
welfare of the child depend on the number and strength of these ties, as well as on the ability
to do all which the promptings of these ties compel.
That the ties of companionship fostered for over five years have gained ascendency over
the ties of blood in this case was manifested by the minor's replies under oath to questions by
the court; that he had a good home; that if he were to make a choice he would want to live
with Mr. Burke; that he was well satisfied that he was his adopted son; and that he was
treated in every way as though he was his own son.
A new father had in fact displaced a recreant parent. One who so callously deserts his only
child, withholding his care, support, affection, interest and whereabouts for the long span of
years shown by this record, ought not to be heard to complain about lack of notice of steps
taken to promote its welfare when that welfare has been long guarded and promoted as so
truly attested.
7. There is no merit in the contention that abandonment was not proved because it did not
appear that the child was left in a destitute condition. As employed in the section before us,
the abandonment contemplated means neglect and refusal to perform the natural and legal
obligations of care and support. If a parent withholds his presence, his love, his care, the
opportunity to display filial affection, and neglects to lend support and maintenance, such a
parent relinquishes all parental claim and abandons the child. In re MacLean, 109 Misc. 479,
179 N.Y.S. 182, 183. Such is the situation presented by the record in this case and in addition
an expressed intention of abandonment. That the child must be left in a destitute condition is
not an essential element. However, it appears that the weekly allowances provided for in the
decree of divorce were needful for the maintenance and education of the child.
The order denying the motion to set aside and nullify the order of adoption is affirmed.
March 12, 1946.
Per Curiam:
Rehearing denied.
____________
63 Nev. 201, 201 (1946) Flyge v. Flynn
LUDWIG FLYGE, Appellant, v. RAY FLYNN and GEORGALEE C. FLYNN,
His Wife, W.A. DRESSLER and CHARLES ALDABE, Respondents.
No. 3431
February 16, 1946. 166 P.2d 539.
1. Fixtures.
Where lease authorized lessee to sell pumping plant on premises, lessee in removing and selling pump
and engine did not violate contract with lessor and did not commit waste.
2. Vendor and Purchaser.
Where at time note and assignment of vendor's interest in ranch sale contract were executed, no paper
such as deed of trust or mortgage was executed or discussed, the note and assignment, as prepared and
executed, finally evidenced the real agreement of parties, irrespective of any prior negotiations.
Any understanding, not embodied in instrument in writing and duly recorded, could not bind an
innocent purchaser of realty for value and without actual notice of understanding.
4. Mortgages.
No particular form of instrument or of language is necessary to create an equitable mortgage on real
property.
5. Mortgages.
The equitable mortgage or lien theory under which no title passes to mortgagee by virtue of mortgage
and foreclosure and sale are essential before mortgagor is deprived of property prevails in Nevada.
A vendor, retaining legal title to secure payment by vendee of unpaid balance of purchase money on
contract for sale of realty, has, in effect, an equitable mortgage or lien on property and the equitable
interest retained by vendor is commensurate with amount of unpaid purchase money.
Where vendors assigned contract for sale of realty and any and all real and personal property situated
on the described realty, the assignment did not indicate any intention to include or to assign the land
itself.
Contract whereby vendors retained legal title to land, appurtenances enumerated and described in
agreement together with all improvements thereon and ranch equipment on property, amounted to an
equitable mortgage or lien on each class of property mentioned.
63 Nev. 201, 202 (1946) Flyge v. Flynn
Where vendors, who had retained legal title to land and appurtenances enumerated and described in
agreement together with all improvements thereon and ranch equipment, made an assignment, intention
of vendors as to property covered by assignment was to be determined from language of assignment
itself, or from surrounding circumstances or both.
10. Improvements.
The term improvements in broad sense includes buildings and fixtures of all kinds.
11. Improvements.
Improvements are real estate and being on real property constitute real property situated on real
property.
12. Fixtures.
Chattels brought on and annexed to realty but which retain their separate identity become realty and
are fixtures.
Where contract provided for sale of undivided one-half interest in property consisting of land, certain
appurtenances incident thereto and all improvements on land and ranch equipment then on property,
the quoted term was broad enough to include things not in their nature realty, if affixed to the real estate,
and to include also personalty situated on the realty.
Where contract provided for sale of undivided one-half interest in certain property consisting of land,
certain appurtenances incident thereto and all improvements on land and ranch equipment, and vendors
assigned the contract and all real and personal property situated on the real property the quoted term
did not create equitable mortgage on the land, but only on such improvements or fixtures and ranch
equipment as were then on the property.
Where vendors assigned contract of sale and all real and personal property situated on the real
property described in the agreement, the identification of the assigned property was sufficient.
The term real property is broad enough to include chattels real which have become part of the realty
by being affixed thereto.
17. Contracts.
Court cannot create contract not intended by parties.
18. Reformation of Instruments.
Reformation of vendors' assignment of contract of sale could only be made on proper showing by
pleadings and subsequent proof, as between parties, and could not be permitted to operate to detriment of
a purchaser in good faith for value and without notice.
63 Nev. 201, 203 (1946) Flyge v. Flynn
Where assignee of vendors' contract for sale of an undivided interest in realty and property thereon
did not claim, on basis of the assignment, any equitable mortgage or lien on land until assignee moved for
leave to file amendment about 12 months after assignment was made, and assignee had alleged that
without certain equipment the security offered would have been inadequate, which would not have been
true had assignment created lien on land, the assignee's conduct revealed that assignee interpreted the
assignment as not giving equitable mortgage or lien on land.
20. Contracts.
In determining meaning of contract interpretation which parties themselves have placed on it is given
great, and oftentimes controlling, effect by the courts.
21. ContractsDeeds.
The maxim expressio unius est exclusio alterius is applied in the construction of conveyances and
other contracts.
Where vendors' assignment of sales contract and all their right, title and interest in and to real and
personal property situated on the real property described in the agreement did not operate as an
assignment of vendors' equitable mortgage or lien on land, it was immaterial whether subsequent
purchaser had actual, imputed or constructive notice of assignment and its terms, since it would not be
any notice to him that assignee had any interest in the land.
Action by Ludwig Flyge against Ray Flynn and others for balance due on note, for
determination that agreement of sale of one-half interest in ranch property had been forfeited,
for recovery of value of well pump and Diesel engine alleged to have been removed from
ranch property, and to establish an equitable lien. From an adverse judgment and from an
order denying plaintiff's motion for a new trial, the plaintiff appeals. Affirmed.
John Davidson and H.R. Cooke, both of Reno, for Appellant.
W.M. Kearney and Sidney W. Robinson, both of Reno, for Respondents.
63 Nev. 201, 204 (1946) Flyge v. Flynn
OPINION
This case is before us upon the appeal of Ludwig Flyge, the plaintiff in the district court,
from the judgment and from the order denying plaintiff's motion for a new trial.
The facts of this case, as disclosed by the evidence contained in the transcript on appeal,
are substantially as follows:
On September 11, 1941, respondent, Ray Flynn, as seller, entered into a written contract
with the respondent, W.A. Dressler, as buyer, under the terms and provisions of which said
Ray Flynn agreed to sell to said W.A. Dressler an undivided one-half interest in and to certain
property, used for ranching purposes, and consisting of the land described in said contract,
certain appurtenances incident thereto and used in connection therewith, in said contract set
forth, and all the improvements upon said land and the ranch equipment then upon said
property. The property, an undivided one-half interest in which was agreed to be sold, was
located, in part, in Washoe County, Nevada, and, in part, in Sierra County, California, and the
other undivided one-half interest therein was owned by Mary Elizabeth Flynn, a minor, for
whom the said Ray Flynn was guardian, and for which half interest an agreement of sale
dated July 1, 1941, and signed by Ray Flynn, as seller, and agreeing to sell said one-half
interest to said W.A. Dressler, as buyer, had been executed.
The said W.A. Dressler, in the contract dated September 11, 1941, had agreed to pay for
the interest of the said Ray Flynn $5,500, as follows: $500 cash within two days after
confirmation and ratification of the agreement of sale dated July 1, 1941, covering the
one-half interest of said Mary Elizabeth Flynn, said minor, by the superior court of Sierra
County, California, and by the second judicial district court of the State of Nevada, in and for
the county of Washoe; to assume one half of the outstanding mortgage upon said
property, of $5,500, plus interest, held by W.B. Bridgman, of 247 Cheney Street, Reno,
Nevada, the accrued interest then being about $20; the balance of the sale price, $2,250,
on or before five years after the date of the final court order approving the sale of the said
minor's one-half interest in the property, the said $2,250 to draw interest at the rate of
five percent per annum, payable semiannually, on July first and January first, each year,
and the first interest-payment to be due January 1, 1942, the buyer to have the privilege
of paying the full balance at any time.
63 Nev. 201, 205 (1946) Flyge v. Flynn
Nevada, in and for the county of Washoe; to assume one half of the outstanding mortgage
upon said property, of $5,500, plus interest, held by W.B. Bridgman, of 247 Cheney Street,
Reno, Nevada, the accrued interest then being about $20; the balance of the sale price,
$2,250, on or before five years after the date of the final court order approving the sale of the
said minor's one-half interest in the property, the said $2,250 to draw interest at the rate of
five percent per annum, payable semiannually, on July first and January first, each year, and
the first interest-payment to be due January 1, 1942, the buyer to have the privilege of paying
the full balance at any time. (Said contract is plaintiff's exhibit B).
It appears from the evidence that, previous to the entering into the said contract dated
September 11, 1941, and upon said date, the said W.A. Dressler was the occupant of said
ranch premises under a certain lease, dated the 20th day of November 1940, to extend for a
period of two years, beginning February 1, 1941. (Bill of exceptions, p. 146, also p. 148 et
seq., said lease being designated as exhibit 16.)
The said lease contained the following provisions: It is agreed that the present pumping
plant, now upon the premises, may be sold, terms and conditions of sale to be approved by
the lessor, and if so sold, the proceeds shall be used to construct a reservoir on the leased
property.
1. And it appears, from the testimony of W.A. Dressler, upon the trial in the district court,
that, pursuant to the provisions of the lease, he had taken possession of the ranch in
December 1940, and had occupied the premises under said lease up to the date of the contract
of sale, September 11, 1941, and that he had continued thereafter in such occupancy; and that,
around the last of August, 1941, he removed the Diesel engine and pump from the property,
but was not paid for same immediately. The witness, Dressler, was shown a check drawn by
Allied Equipment Company, dated September 18, 1941, which he stated was in payment for
the engine and pump he had sold prior to that date.
63 Nev. 201, 206 (1946) Flyge v. Flynn
and pump he had sold prior to that date. (The check was admitted in evidence as defendant's
exhibit 15. The testimony of Dressler, as to the said lease, his occupancy thereunder until he
constructively took possession under said agreement of September 11, 1941, and as to his
removal of said Diesel engine and pump, pursuant to said provisions of the lease, prior to
September 11, 1941, was not contradicted by any evidence at the trial. It may be considered,
therefore, as an established fact that the Diesel engine and pump, which, subsequent to
September 11, 1941, entered importantly into certain calculations and transactions of the
appellant, Flyge, and the respondents, Ray Flynn and Georgalee C. Flynn and into the instant
case, commenced by the said plaintiff, Flyge, against respondents, Ray Flynn and Georgalee
C. Flynn, his wife, W.A. Dressler, Bert Allison, and Allied Equipment, Inc., a corporation, on
November 19, 1942, upon the apparently mistaken idea that such engine and pump were
included in the property belonging to the Flynns, and by the said agreement of September 11,
1941, agreed to be sold to Dressler, and were wrongfully removed by Dressler, were, as a
matter of fact, not a part of said premises when said agreement was made, and did not
comprise any part of the property thereby agreed to be sold. It follows that, by their removal,
Dressler, who acted pursuant to the right and authority vested in him under the
above-mentioned lease of November 20, 1940, did not violate his contract with the Flynns,
nor commit waste by removing such Diesel engine and pump. From the evidence, and
admissions in the pleadings, it is established that on or about October 30, 1941, respondent,
Ray Flynn, borrowed from W.M. Kearney, the sum of $600, and executed and delivered his
promissory note to said W.M. Kearney, payable July 1, 1942, with interest at eight percent
per annum, together with reasonable attorney's fees for collection if not paid at maturity; that,
as security for the payment of said indebtedness, the respondent, Ray Flynn, executed and
delivered to said Kearney an assignment of all the Flynns' rights in the said contract entered
into September 11, 1941, between the said Ray Flynn, as the seller, and W.A. Dressler, as
the buyer, and that said assignment was recorded, at the request of W.M. Kearney, on
November 29, 1941, in Volume N of Bonds and Agreements, at page 419, records of
Washoe County, Nevada; that the respondent, Ray Flynn, executed and delivered, to said
W.M. Kearney, a deed to the said ranch premises, dated October 30, 1941; that the
appellant alleged, in the amended complaint herein, that said deed was a deed of trust,
which respondents did not admit, but it is sufficiently established that it was given as
additional security for such loan of $600.
63 Nev. 201, 207 (1946) Flyge v. Flynn
Flynns' rights in the said contract entered into September 11, 1941, between the said Ray
Flynn, as the seller, and W.A. Dressler, as the buyer, and that said assignment was recorded,
at the request of W.M. Kearney, on November 29, 1941, in Volume N of Bonds and
Agreements, at page 419, records of Washoe County, Nevada; that the respondent, Ray
Flynn, executed and delivered, to said W.M. Kearney, a deed to the said ranch premises,
dated October 30, 1941; that the appellant alleged, in the amended complaint herein, that said
deed was a deed of trust, which respondents did not admit, but it is sufficiently established
that it was given as additional security for such loan of $600. It is admitted that such deed
was duly recorded. It is further admitted, in the answer of the respondents, Ray Flynn and
Georgalee C. Flynn, to appellant's amended complaint, that, on or about April 6, 1942, the
said Flynns repaid the said loan of $600 and $32 interest, to W. M. Kearney, in full discharge
of said loan theretofore made to said Ray Flynn by the said Kearney, and that the said W.M.
Kearney reassigned to respondent, Ray Flynn, the said contract of purchase dated September
11, 1941, between the said Ray Flynn and W.A. Dressler, and that the said Kearney executed
a reconveyance to the said respondent, Ray Flynn, of all rights derived by him under said
deed dated October 30, 1941.
It appears from the admissions in the pleadings, and from the evidence, and, in fact, is
undisputed, that, on the 6th day of April 1942, respondents, Ray Flynn and Georgalee C.
Flynn, his wife, made, executed and delivered to appellant, Ludwig Flyge, a certain
promissory note, in writing, dated April 6, 1942, in the principal sum of $900, payable on or
before June 4, 1942, with interest at six percent per annum, payable quarterly, in advance,
both principal and interest payable only in lawful money of the United States, and containing
the other usual provisions, including a promise to pay reasonable attorney's fees for
collection, and stating that the payment of the note was secured by an assignment of even
date therewith.
63 Nev. 201, 208 (1946) Flyge v. Flynn
date therewith. (The said note was admitted in evidence at the trial as plaintiff's exhibit A.)
It further appears that, as security for the payment of said note, the said Ray Flynn and
Georgalee C. Flynn, respondents, on said 6th day of April 1942, made, executed and
delivered to appellant, Ludwig Flyge, an assignment, in writing, which was admitted in
evidence at the trial as plaintiff's exhibit C, and is in words and figures as follows:
For and in consideration of the sum of One ($1.00), Dollars to us in hand paid, receipt of
which is hereby acknowledged, we, the undersigned, Ray Flynn and Georgalee Crider Flynn,
my wife, do hereby assign, sell and set over to Ludwig Flyge, as his separate property, all of
our right, title and interest in and to that certain agreement of sale dated September 11th,
1941, by and between the undersigned, Ray Flynn, as seller, and W.A. Dressler known as the
buyer.
Said contract of sale was recorded September 13th, 1941, at Page 339, Liber K of
Contracts and Agreements, Records of Sierra County, California and also recorded on
September 17th, 1941, in Volume N of Bonds and Agreements, Page 351 et seq., Records of
Washoe County, Nevada.
We further assign all of our right, title and interest in and to any and all real and personal
property situated on the real property described in the above agreement.
Dated: At Reno, Washoe County, Nevada, this 6th day of April, 1942.
The dates, offices and books of the records of said instrument sufficiently appear following
the certificate of acknowledgment thereto appended.
It is clear from the evidence, and is not disputed, that for several months prior to the
execution and delivery of the said note for $900 and the said assignment to Ludwig Flyge, the
Flynns had been indebted to said Flyge, principally for rent of the house of his they were
occupying. The appellant, Flyge, testified the rental owing him at the time of the assignment
was five months' rental, at $40 per month, a total of $200; that $640 of the amount of the
loan was for Mr.
63 Nev. 201, 209 (1946) Flyge v. Flynn
months' rental, at $40 per month, a total of $200; that $640 of the amount of the loan was for
Mr. Kearney; and $50 was for money that he, Flyge, gave Mrs. Flynn, $10 of said $50 being
to pay the power company for electricity, and $40 thereof being for groceries; that in February
he had paid fifteen dollars for oil for the furnace so they would not freeze to death. The trial
judge, at that point in the proceedings, remarked that said amounts made $905 which was $5
in excess of the amount of the note. It appears from the pleadings, however, that $632 was the
amount paid Kearney. It is undisputed that the note was for value received, and that the
Flynns received from appellant, Flyge, on executing the note and assignment, approximately
$900.
From the testimony, it appears, and is undisputed, that appellant, Flyge, had, for some
time, been insistent upon security for the past due rental, that negotiations had been
proceeding for several weeks in regard to the matter, and that Flyge, learning of the contract
with Dressler for the sale of the ranch, and the existence of the $600 note to Kearney, and the
assignment to Kearney of the Dressler contract, for security, and the execution of the deed of
trust to him, proposed to the Flynns that he, Flyge, would advance them the money to pay off
the Kearney note, if they would assign to him their interest in the Dressler contract. This was
finally agreed upon, and it was agreed that, besides paying off Kearney the $600 and $32
interest, and including the $200 for rental, Flyge would advance to the Flynns enough cash to
make the total of $900. So, upon that understanding, the note of $900, payable to Ludwig
Flyge and dated April 6, 1942, and the assignment of even date therewith, to secure payment
of said note, were executed.
2, 3. It was alleged by the appellant, in his amended complaint, that the appellant loaned
to respondent, Ray Flynn, the $632 to pay off the Kearney obligation, on the agreement of
Ray Flynn that appellant would be given the same security as that held by Kearney. No
evidence was adduced at the trial to that effect. In view of the fact that, when the note and
the assignment were drawn and Kearney was paid off, no paper such as a deed of trust or
mortgage were drawn or discussed, it appears that the note and assignment, as prepared
and executed, finally evidenced the real agreement of the parties, irrespective of any prior
negotiations.
63 Nev. 201, 210 (1946) Flyge v. Flynn
of the fact that, when the note and the assignment were drawn and Kearney was paid off, no
paper such as a deed of trust or mortgage were drawn or discussed, it appears that the note
and assignment, as prepared and executed, finally evidenced the real agreement of the parties,
irrespective of any prior negotiations. And it is too plain for discussion, that any such
understanding, not embodied in any instrument in writing and duly recorded, could not bind
an innocent purchaser of the property for value and without any actual notice of such
understanding.
It is sufficiently proven, by the evidence, that on Good Friday, April 3, 1942, the appellant,
Ludwig Flyge, John Davidson and Mrs. Georgalee C. Flynn visited the said ranch. Mrs. Flynn
testified that the purpose of the trip was to see the engine on the property. She further
testified as follows: We looked the property over and saw that the engine had gone, which I
did not know, and talked to Mr. Dressler for a few minutes and Mr. Davidson, I believe it
was, that day, he ordered him to leave the property for not fulfilling his contract.
Upon being asked, upon direct examination, whether Mr. Flyge was present at that time,
the witness answered: He was with us. I could not say whether he was in hearing distance.
Mrs. Flynn further testified, in substance, that they all drove up to the field, to where the
engine was, and Dressler was up there; that, at that time, she did not know anything about the
engine being gone; that, after they left, she went, with Mr. Davidson and Flyge, back to Reno,
and then went to Mr. Davidson's office. The witness was not sure whether she signed any
papers that day, or the next day, but there was a letter that Mr. Davidson wrote telling them
legally, I guess, to leave the property. Mrs. Flynn testified, also, that she went out to the
ranch a couple of times, between April 3, 1942, when the letter was written and July 1,
1942, and one time she was speaking to Mr. Dressler's wife, and told them she would like to
know when they were going to leave, that she would like to move out as soon as possible;
that the witness did that at the direction of Mr.
63 Nev. 201, 211 (1946) Flyge v. Flynn
to leave, that she would like to move out as soon as possible; that the witness did that at the
direction of Mr. Davidson; that the witness finally went out, and took possession of the ranch,
the last of July or the first of August.
W.A. Dressler testified as to what occurred at the ranch, April 3, 1942, substantially, that
he was up in the field along the ditch, putting in the dam in the ditch when the three of them
came up there, and I don't know, I don't remember just how the conversation started. Then
the following questions and answers occurred:
Q. Mr. Kearney: Who was present when they came to the ditch? A. Mrs. Flynn, Mr.
Davidson, and Mr. Flyge.
Q. Go ahead and state what was said and done at that time. A. I believe Mr. Davidson
asked me where the pump was and I told him I sold the pump, and then he told me to get off
of the ranch, and I just looked at him--so he kept telling me to get off, and, if I remember
right, I told him I didn't think I had to get off; and I don't remember the rest of the
conversation, but anyhow they all got in the truck and rode back to the house with me, where
their car was.
Q. And Mr. Flyge was in the field at that time and heard the conversation? A. Yes, right
alongside of the truck, and I was sitting in the truck.
Further on, the court asked Mr. Dressler when he actually left the property, and he replied
he didn't know the exact date, but it was the last of July or the first of August (1942).
John Davidson, recalled as a witness for the plaintiff, identified a carbon copy of a letter,
dated April 3, 1942, addressed to W.A. Dressler, which he (Davidson) wrote to Mr. Dressler
on that day, and testified that Flynn requested him to write it, and that the original was sent to
Dressler. Mr. Dressler, in his testimony, acknowledged its receipt. Questioned by Mr.
Robinson as to whom he was representing when he wrote that letter, Mr. Davidson said he
wrote the letter on behalf of Mr.
63 Nev. 201, 212 (1946) Flyge v. Flynn
Flynn, that he was representing him at that time. Asked at what period in this transaction he
quit representing Mr. Flynn and commenced to represent Mr. Flyge, Mr. Davidson answered:
I do not recall the exact date when Mr. Flynn and Mrs. Flynn and Mr. Aldabe went into Mr.
Kearney's office and he took over the attorneyship for both of them, and that is the time I
switched. Mr. Kearney moved that the answer be stricken because assuming something not
in evidence and that it was hearsay, and the court ruled that that particular portion only of
the answer may now be stricken. The witness then testified he no longer represented Flynn,
that, jointly with Mr. Cooke, he now represents Mr. Flyge. The letter dated April 3, 1942,
written, as testified, by Mr. Davidson, on behalf of Flynn, and addressed to Dressler, was
admitted in evidence as plaintiff's exhibit D. Said letter, reciting four alleged violations by
Dressler of the agreement of September 11, 1941, stated that:
* * * you may consider this letter as formal notice to the effect that we have declared the
contract in default; that unless all payments are made in accordance with the terms of said
contract and all covenants set forth in said contract are complied with within thirty days from
date hereof, then it will be necessary for you to vacate the premises and relinquish all of your
right, title and interest in and to same.
The violations of the terms of said agreement are as follows:
1. You have failed to pay interest on the balance due in accordance with Section C,
Page 2, of said agreement which was due and payable on January 1st, 1942.
2. You have failed to pay the taxes in accordance with said agreement.
3. You have failed to pay the interest on the first mortgage of $5500.00 held by W. B.
Bridgeman of this City which is now past due.
4. You have caused to be removed and sold by you one diesel engine and pump
situated and located on said ranch property."
63 Nev. 201, 213 (1946) Flyge v. Flynn
one diesel engine and pump situated and located on said ranch property.
Mr. Davidson, further on in his testimony upon cross-examination, was interrogated by
Mr. Kearney as to what occurred upon the occasion of his visit to the ranch, on April 3, 1942,
with Mr. Flyge and Mrs. Flynn, said questions and the witness' answers being, in part, as
follows:
Q. You did go to the ranch with Mr. Flyge on April 3, 1942? A. Yes, and Mrs. Flynn.
Q. Whom did you see there? A. Mrs. Flynn and I talked to Mr. Dressler.
Q. Whom did you see there? A. Mrs. Dressler and Mr. Dressler.
Q. You talked with them, did you not? A. Yes.
Q. And you ordered him off of the ranch? A. Mrs. Flynn and I
Q. Just a minute. A. I did not order him off of the ranch.
Q. Was he ordered off of the ranch at that time in the presence of Mr. Flyge and Mrs.
Flynn? A. I do not think Mr. Flyge was present. I think Mrs. Flynn and I were talking to Mr.
Dressler at the time. I think Mr. Flyge stayed in the car and we had to walk way up the field to
find Mr. Dressler, and whether or not Mr. Flyge was there at the time I do not know.
From their testimony it is apparent that neither Mrs. Flynn nor Mr. Davidson admitted any
certain knowledge of whether or not Mr. Flyge heard, or was where he could have heard, the
conversation on April 3, 1942, between Davidson and Dressler, in the field on the ranch, in
which Dressler told Davidson he had sold the pump. Dressler said, as above set forth, that
Flyge was in the field at that time and heard the conversationthat he was right alongside the
truck, and I (Dressler) was sitting in the truck.
On this point, as to whether or not Flyge knew, when he took the assignment dated April
6, 1942, that the engine and pump had been removed, and concerning which the allegation
in paragraph V, subparagraph {c), of plaintiff's original complaint, and the allegations in
paragraph V of his amended complaint, are contradictory, Flyge was not permitted by his
attorney, Mr.
63 Nev. 201, 214 (1946) Flyge v. Flynn
engine and pump had been removed, and concerning which the allegation in paragraph V,
subparagraph (c), of plaintiff's original complaint, and the allegations in paragraph V of his
amended complaint, are contradictory, Flyge was not permitted by his attorney, Mr. Cooke, to
testify.
In the cross-examination of Flyge by Mr. Kearney, Flyge was asked:
Q. When did you first discover and know that the pump and Diesel engine were not on
the Long Valley Ranch, the Flynn Ranch?
Mr. Cooke: I object to that as not proper cross-examination.
The Court: That objection must be sustained.
In appellant's (plaintiff's) original complaint, paragraph V, subparagraph (c), it is alleged:
That on or about April 3, 1942 plaintiff gave said defendant written notice of the
aforementioned breach as respects the removal and sale by said defendant of the Diesel
Engine and Pump and that said breach was not cured within 30 days thereafter, or at all.
But it appears from Mr. Davidson's testimony that the letter of April 3, 1942, containing
such notice, was written on behalf of Flynn.
And in subparagraph (c) of paragraph VI of the amended complaint, a different allegation
is made, eliminating all reference to the Diesel engine and pump, said allegation being as
follows: (c) That on or about April 3, 1942 written notice of the aforementioned breach as
respects the removal and sale by said defendant of the Diesel Engine and Pump was given to
said defendant and that said breaches was not cured within 30 days thereafter, or at all.
In paragraph II of appellant's (plaintiff's) amended complaint, referring to the time,
September 11, 1941, of the making of the contract between Ray Flynn, as seller, and W.A.
Dressler, as buyer for the sale of the ranch, which was admitted in evidence at the trial as
plaintiff's exhibit "B," but was designated in said amended complaint as exhibit "A," the
appellant alleged: "* * * that at the time of making said contract, exhibit 'A,' the
hereinafter described Diesel Engine and deep well pump were upon said premises and
constituted a part of the ranch equipment."
63 Nev. 201, 215 (1946) Flyge v. Flynn
exhibit B, but was designated in said amended complaint as exhibit A, the appellant
alleged: * * * that at the time of making said contract, exhibit A,' the hereinafter described
Diesel Engine and deep well pump were upon said premises and constituted a part of the
ranch equipment.
A similar allegation was made in paragraph II of the original complaint.
And in paragraph V of the amended complaint, the appellant (plaintiff) alleged as follows:
* * * that prior to April 6, 1942 plaintiff had knowledge of said ranch equipment being upon
said premises and on said April 6, 1942 plaintiff believed said Diesel Engine and deep well
pump were then upon the premises; that if plaintiff had then known that said equipment had
been removed he would not have consummated said loan transaction; that without said
equipment the security offered would be inadequate.
The testimony of Mr. Davidson discloses that, on April 18, 1942, at a time when he was
representing Flyge, he, Davidson, on behalf of Flyge, addressed and mailed a letter to
Dressler, the body of which is in words and figures as follows:
I have contacted Mr. Allison of the Allied Equipment Company to whom the pump, the
diesel engine and the building located on the ranch you are occupying was sold. He has made
repeated attempts to locate you regarding this matter and has handed me a check for $850.00
to cover the amount you received for this pump and other equipment.
I would suggest that you arrange to take up the entire balance due on this contract without
further delay as Mr. Allison is contemplating some criminal action in regard to the unlawful
sale of this pump. Either contact me at once or see Mr. Allison regarding this matter.
Said letter was admitted in evidence as defendant's exhibit 5.
63 Nev. 201, 216 (1946) Flyge v. Flynn
On June 30, 1942, Mr. Davidson, as proven by the evidence, addressed another letter to
Mr. Dressler, which the latter acknowledged having received about July 4, the body of said
letter being as follows:
Under date of April 3, 1942, I wrote to you and advised you that you were in default of
your agreement made with Ray Flynn covering the purchase of the ranch property which you
are now occupying. I notified you to the effect that you had removed certain property from the
premises consisting of a deep-well pump and a Diesel engine and sold the same to the Allied
Equipment Company.
I have hesitated to start an ejection suit, feeling that possibly you might make some
arrangements to take care of this matter without recourse to law, but up to the present writing,
I have had no reply from you. I discussed the matter with Mr. Bert Allison last week, and he
advised me that you were making the necessary arrangements to pay up the entire balance of
this contract.
This contract has been assigned to Mr. Ludwig Flyge of Reno, Nevada. If you propose
and intend to pay up this entire balance within the next few days, I will be glad to cooperate
and wait until such time as this can be concluded. However, if this balance on this contract
including all interest to date is not received by me for and on behalf of Mr. Flyge on or before
the 6th day of July, you may rest assured that legal action will be taken against you and Mr.
Allison for the conversion of this property.
Mr. Allison is willing to pay to us the amount received by him for this equipment, but we
must insist on the payment of its full value or else the payment in full of the balance due on
the contract at once.
For your information, there has been no interest paid to and on account of this contract.
You may have paid the taxes and the interest on the first mortgage to Mr. Bridgman, but the
contract at the present time is in default, and I propose to enforce the right thereunder
unless this matter is settled at once."
63 Nev. 201, 217 (1946) Flyge v. Flynn
default, and I propose to enforce the right thereunder unless this matter is settled at once.
It will be noted that the last-mentioned letter related entirely, except as to an item of
interest claimed to be due from Dressler, to the alleged wrongful removal of the deep-well
pump and Diesel engine, and demands for the full value of same, or else the payment at once
of the entire balance to become due on the contract, and giving Dressler only until July 6 to
comply, or suffer a suit for unlawful conversion.
Appellant, whom, for convenience, we will designate as plaintiff, on the 19th day of
November 1942, brought this action against Ray Flynn and Georgalee C. Flynn, his wife,
W.A. Dressler, Bert Allison, and Allied Equipment, Inc., a corporation, in which he prayed
judgment:
(a) Against defendants, Ray Flynn and Georgalee C. Flynn, his wife, in the sum of $900,
alleged to be due upon a promissory note, with interest thereon at the rate of six percent per
annum from April 6, 1942, until paid, together with a reasonable attorney's fee.
(b) Against defendant, W.A. Dressler, adjudging and decreeing that an agreement of sale
of one-half interest in the Flynn ranch property, between defendant, Ray Flynn, as seller, and
defendant, W.A. Dressler, as buyer, and assigned by defendants Flynn to plaintiff, be
terminated; that all rights or interests thereunder of defendant, Dressler, be adjudged
forfeited, foreclosed and at an end, and that all moneys already paid thereunder be adjudged
to be liquidated damages for said defendant's nonfulfillment of said agreement; that said
defendant, Dressler, be ordered and decreed to immediately vacate said premises and
relinquish same to plaintiff;
(c) Against defendants, W.A. Dressler, Bert Allison and Allied Equipment, Inc., a
corporation, jointly and severally, in the sum of $1,500, plaintiff's alleged share and interest
in the value of a deep-well pump and Diesel engine, alleged to have been removed from said
ranch property by defendant, Dressler, and by him sold to defendant, Allied Equipment,
Inc., the latter acting in that behalf by defendant, Allison;
63 Nev. 201, 218 (1946) Flyge v. Flynn
property by defendant, Dressler, and by him sold to defendant, Allied Equipment, Inc., the
latter acting in that behalf by defendant, Allison;
(d) Against all of said defendants for costs, and for general relief.
Demurrers to the original complaint were filed, some of which were sustained. An
amended complaint was thereupon filed, to which demurrers were interposed. The demurrers
of defendants, Bert Allison and Allied Equipment, Inc., a corporation, were sustained without
leave to amend, and the action was dismissed as to said defendants with prejudice.
An amendment to the amended complaint was filed, made pursuant to an order bringing in
Charles Aldabe as a party defendant, wherein plaintiff prayed that a decree herein include an
adjudication that said defendant has no right, title or interest in the real property described in
the amended complaint, or that the same is subject and subordinate to the right, title and
interest of plaintiff.
The relief prayed for by the amended complaint was the same as in the original complaint,
except the paragraph designated as (c), on page 8, was added, same being: Against all the
defendants, that as security for the moneys due him the Court adjudge and decree a lien in
favor of plaintiff upon the undivided one-half interest in said premises and that said lien be
foreclosed conformably to the usages of equity and said Property sold under order of the court
and that from the proceeds plaintiff's claim with costs and expenses of sale be first paid and
the excess, if any, be paid to said defendants Ray Flynn and Georgalee C. Flynn, or other
persons as their interests may appear.
No allegations appear as a basis for this additional prayer, except those in paragraph V, to
the effect that the plaintiff loaned the $900 to Flynn upon the agreement that plaintiff would
be given the same security as then held by Kearney. In the same paragraph V, however, is the
following allegation (hereinbefore quoted in another connection): "* * * that prior to April
6, 1942 plaintiff had knowledge of said ranch equipment being upon said premises, and
on said April 6, 1942 plaintiff believed said Diesel engine and the deep well pump were
then upon the premises; that if plaintiff had then known that said equipment had been
removed he would not have consummated said loan transaction; that without said
equipment the security offered would be inadequate."
63 Nev. 201, 219 (1946) Flyge v. Flynn
another connection): * * * that prior to April 6, 1942 plaintiff had knowledge of said ranch
equipment being upon said premises, and on said April 6, 1942 plaintiff believed said Diesel
engine and the deep well pump were then upon the premises; that if plaintiff had then known
that said equipment had been removed he would not have consummated said loan transaction;
that without said equipment the security offered would be inadequate.
The respondent, Charles Aldabe, answered, and also filed a second amended answer to the
amended complaint of the appellant, in which he alleged facts to show that he was a
purchaser in good faith and for a valuable consideration, to wit, the sum of $8,000 of the
undivided one-half interest in the said property; that he purchased same from the Flynns, and
acquired the fee simple title to the property; that he had no actual notice and had no
constructive notice of any claim of Flyge to the property, or any interest therein; that the
assignment referred to in paragraph IV of plaintiff's amended complaint, as amended, does
not affect, and does not purport to affect, real property, by reason of the fact that said
assignment is not recorded or indexed as a deed, mortgage, deed of trust, lien, or other
instrument affecting, or purporting to affect, real property, and by reason of the fact that such
assignment is not such an instrument as is required to be recorded, by the statutes of the State
of Nevada.
It was clearly proven at the trial that respondent, Dressler, had not violated the contract
made September 11, 1941, in any respect; that, as hereinbefore stated, he had removed and
sold the Diesel engine and pump under authority of the ranch lease, dated November 20, 1940
(defendant's exhibit 16), and with the consent of Ray Flynn; that he had paid all interest and
taxes in accordance with the provisions of said contract of September 11, 1941, and that, by
the continued harassment, demands for possession, threats of eviction, and wrongful
accusations that he had breached said contract, the appellant, Flyge, and the Flynns had
themselves violated said agreement, and Dressler's right thereunder to peaceable
possession of said property, which resulted in his leaving and giving up possession of said
property, notwithstanding the fact that he had made substantial expenditures thereon.
63 Nev. 201, 220 (1946) Flyge v. Flynn
violated said agreement, and Dressler's right thereunder to peaceable possession of said
property, which resulted in his leaving and giving up possession of said property,
notwithstanding the fact that he had made substantial expenditures thereon.
Dressler left the premises the latter part of July or early August, 1942.
When made a party to this suit by Flyge, Dressler answered and filed a counterclaim,
denying any breach of contract on his part, and alleging the said breach of contract by the
plaintiff, Flyge, and by plaintiff's assignors, Ray Flynn and Georgalee C. Flynn, by their
wrongful accusations that he, Dressler, had broken said contract, by their unlawful demands
for possession and threats of eviction, and their wrongful declaration of default on the part of
Dressler, and cancellation of said contract, resulting in Dressler leaving and giving up
possession of said property.
Dressler prayed for actual damages in the sum of $6,000 ($500 he had paid on the
purchase price of said property, $2,500 for work and improvements thereon, and $3,000 for
loss of profits on sale).
The trial court found, in substance, that Dressler had not violated the said contract; that the
demand of plaintiff, Flyge, for a termination had been accomplished, by Dressler having left
the premises, thereby voluntarily acquiescing in the cancellation of said contract; that the said
Dressler had the right to remove the Diesel engine and pump; and that plaintiff was entitled to
no damages as against Dressler because of their removal and sale.
The trial court further found that Dressler was not entitled to any damages by virtue of his
counterclaim, for the reason that he was not evicted by force, nor compelled to yield to the
demands of the plaintiff for possession and for the termination of the contract, but voluntarily
left the premises and acquiesced in the cancellation of the said contract; but the court allowed
Dressler his costs.
The appellant appealed from the judgment in favor of Dressler, and from the order
denying a new trial as to him, but has waived the appeal as to said respondent, Dressler,
by the following statement, on pages 1 and 2 of his reply brief to the brief of the
respondent, Dressler:
63 Nev. 201, 221 (1946) Flyge v. Flynn
of Dressler, and from the order denying a new trial as to him, but has waived the appeal as to
said respondent, Dressler, by the following statement, on pages 1 and 2 of his reply brief to
the brief of the respondent, Dressler:
At the time this suit was commenced in the court below respondent W.A. Dressler was in
possession of the property covered by plaintiff's equitable mortgage and claiming purchase
thereof. Hence he was made a defendant,the purpose being of proving, if plaintiff could,
that Dressler had breached his contract. But after this action was commenced and before trial
thereof, Dressler moved off of the property and relinquished all claims, rights, etc. under said
contract.
It would therefore appear the case was thenceforth moot as to Dressler, except for his
counter-claim for damages against the plaintiff Flyge, which claim was wholly denied by the
trial court, and except also as to costs already incurred by Dressler being brought in.
Dressler filed and served his Cost Bill, claiming $10.50. Plaintiff moved that said costs
be retaxed, which motion was denied by the trial court. Hence, so far as the respondent
Dressler is concerned or interested, the amount involved is the $10.50 costs. We are not
disposed to expend further time or labor concerning the said $10.50.
Respondent, Dressler, upon this appeal is not requesting any relief other than the
affirmance of the judgment of the trial court dismissing the complaint of the plaintiff and
awarding the defendant, Dressler, his costs.
The trial court awarded judgment against defendants (respondents), Ray Flynn and
Georgalee C. Flynn, his wife, upon the promissory note made, executed and delivered on
April 6, 1942, in the sum of $900, together with interest from April 6, 1942, until paid, at the
rate of six percent per annum, together with a reasonable attorney's fee in the sum of $500
and plaintiff's costs and disbursements as against said defendant. That court, in ruling upon
the counterclaim of the Flynns against the plaintiff for an accounting and for a
reconveyance to them of certain mineral rights in Oklahoma, held that they had not
sufficiently proven their claim for affirmative relief, and denied same.
63 Nev. 201, 222 (1946) Flyge v. Flynn
against the plaintiff for an accounting and for a reconveyance to them of certain mineral
rights in Oklahoma, held that they had not sufficiently proven their claim for affirmative
relief, and denied same.
The trial court decided, and, as a fact found, that respondent, Charles Aldabe, became the
owner of the fee simple title to such undivided one-half interest in said ranch property, all
appurtenances, and all improvements and equipment thereon, by virtue of its conveyance to
the said Charles Aldabe by Ray Flynn and Georgalee Crider Flynn, by a grant, bargain and
sale deed, dated November 12, 1942, which said deed is recorded in the office of the county
recorder of Sierra County, California, at page 236, liber 40, of deeds, of official records of
Sierra County, California, and is also recorded in the office of the county recorder of Washoe
County, Nevada, in volume 150 of deeds, at page 535, etc., unencumbered by any equitable
mortgage or lien, by virtue of said assignment of April 6, 1942, or otherwise, and awarded to
said Charles Aldabe judgment for his costs.
A motion for a new trial was made by the appellant, in the district court, was argued,
submitted, and by that court denied.
In his opening brief, on page 3, appellant has stated:
Plaintiff is dissatisfied with the judgment, principally because the court declined to hold
that the title of defendant Charles Aldabe to the real property described in plaintiff's Amended
Complaint, as amended, is subject to plaintiff's mortgage lien.
* * * * * * *
Plaintiff makes four basic contentions:
(a) That the assignment of the agreement for the sale of the ranch property constituted an
equitable mortgage of the real property described in said agreement.
(b) That defendant Charles Aldabe had actual notice of said assignment before purchasing
the ranch;
(c) That defendant Charles Aldabe had constructive notice of said assignment before
purchasing the ranch; and
63 Nev. 201, 223 (1946) Flyge v. Flynn
notice of said assignment before purchasing the ranch; and
(d) That defendant Charles Aldabe had imputed notice of said assignment before
purchasing the ranch, because the Washoe County Title Guaranty Company, which had
knowledge of said assignment, was the agent of said defendant respecting the condition of the
title to the property.
The appellant has interposed ten assignments of error, all of which, except assignments
Nos. I, II, VII and X, relate exclusively to the issues between the appellant, Flyge, and
respondent, Charles Aldabe.
Insofar as the assignments relating to respondent, W. A. Dressler, are concerned, they have
been waived, those thus waived being assignment No. VII, and, in part, assignments Nos. I, II
and X. The remaining assignments, Nos. III, IV, V, VI, VIII and IX, and the portions of Nos.
I, II and X relating to Aldabe, will depend, of course, for their determination as to their
merits, upon the decision of this court as to the propositions involved in appellant's four basic
contentions, insofar as it is necessary to determine such contentions.
We will now address ourselves to basic contention (a), which is: (a) That the assignment
of the agreement for the sale of the ranch property constituted an equitable mortgage of the
real property described in said agreement.
4. We agree with the attorneys for appellant that no particular form of instrument, or of
language, is essential to create an equitable mortgage on real property.
In 36 Am. Jur., p. 696, it is said: There are a number of situations wherein instruments
which are not effective as mortgages at law will be regarded as such in a court of chancery,
which will regard them as binding on the parties as if mortgages in due form had been
properly executed. Such instruments are known as equitable mortgages. Citing: King's Heirs
v. Thompson, 9 Pet. 204, 9 L.Ed. 102; Ober v. Gallagher, 93 U.S. 199, 23 L.Ed. 829; Pollak
v. Millsap, 219 Ala. 273, 122 So.
63 Nev. 201, 224 (1946) Flyge v. Flynn
So. 16, 65 A.L.R. 110; Parry v. Reinertson, 208 Iowa 739, 224 N.W. 489, 63 A.L.R. 1051.
In Higgins v. Manson, 126 Cal. 467, 58 P. 907, 908, 77 Am. St. Rep. 192, it is stated:
The form of the writing is not important, provided it sufficiently appears that it was thereby
intended to create a security. If that intention appears, it will create a mortgage in equity, or a
specific lien on the property so intended to be mortgaged.
It is especially true that no particular form of instrument or words is necessary to create an
equitable mortgage, if the parties so intended, in states in which the common-law theory of a
mortgage, involving the conveyance of the legal title, has been replaced by the equitable lien
theory. In the operation of the equitable mortgage or lien theory, no title passes to the
mortgagee by virtue of the mortgage, and foreclosure and sale are always essential before the
mortgagor is deprived of the property.
In Nevada we have a statute, N.C.L., vol. 4, sec. 9065, recognizing the equitable theory of
mortgages as existing in this state, which is as follows: A mortgage of real property shall not
be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to
take possession of the real property without a foreclosure and sale.
5. The opinions in the cases of Orr v. Ulyatt, 23 Nev. 134, 43 P. 916; Yori v. Phenix, 38
Nev. 277, 149 P. 180; Southern Pacific Co. v. Miller et al., 39 Nev. 169, 154 P. 929;
Brockman v. Ullom, 53 Nev. 287, 299 P. 677; and Hannig v. Conger, 54 Nev. 388, 19 P. 2d
769, clearly disclose that the equitable mortgage or lien theory prevails in this state.
In the instant case, the respondents, Ray and Georgalee Crider Flynn, made the foregoing
assignment (plaintiff's exhibit C) to appellant, Flyge, of the contract of September 11, 1941,
with Dressler, to secure the payment of their promissory note for $900 and interest.
63 Nev. 201, 225 (1946) Flyge v. Flynn
interest. In such assignment, in addition to assigning their interest in said contract, they
assigned, also, all their right, title and interest in and to any and all real and personal
property situated on the real property described in the above agreement.
6. A vendor, retaining the legal title for security, to secure the payment by the vendee of
the unpaid balance of the purchase money upon a contract for the sale of real estate, has, in
effect, an equitable mortgage or lien upon the property. The equitable interest retained by him
is commensurate with the amount of the unpaid purchase money, as provided by the contract
of purchase and sale.
There are many cases which hold that a vendor in an executory contract for the sale of real
estate, holding the legal title for security (which, in effect, is an equitable mortgage or lien to
the extent of the interest in the property equivalent to the amount of the unpaid purchase
money), who borrows money from a third person and assigns all his interest in the contract of
purchase and sale, to secure the loan, without expressly assigning any property, is deemed, in
equity, to have intended to assign, not only his interest in such contract, but also, an equitable
interest in the real property equivalent to his equitable lien for such unpaid purchase money.
This is upon a theory similar to that which prevails to the effect that the holder of a
promissory note, secured by a mortgage or lien, if he assigns the principal obligationthe
note, is deemed to have assigned, also, the mortgage, as an incident thereto. The reason for
this doctrine, apparently, is that one who incurs an obligation and transfers to his creditor, as
security, the obligation of another which he holds, and for which he has security, should give
his assignee (creditor), the benefit of the security.
In 66 C.J., p. 1067, it is stated: A vendor may assign a contract for the sale of land for
security. The assignment vests in the assignee a lien upon the vendor's interest in the
property to the extent of the debt secured, not exceeding the purchase money unpaid on
the contract."
63 Nev. 201, 226 (1946) Flyge v. Flynn
interest in the property to the extent of the debt secured, not exceeding the purchase money
unpaid on the contract.
The following cases are cited in support of the text: Lamm v. Armstrong, 95 Minn. 434,
104 N.W. 304, 111 Am. St. Rep. 479, 5 Ann. Cas. 418 and note; Big Ben Land Co. v.
Hutchings, 71 Wash. 345, 128 P. 652; Marion Mortgage Co. v. Grennan, 106 Fla. 913, 143
So. 761, 87 A.L.R. 1492; Williams v. Johns, 34 Ohio App. 230, 170 N.E. 580.
The Case of Lamm v. Armstrong, supra, has been stressed by appellant. The reasoning of
that case is clear, and supports the view that the mere assignment of the contract of purchase
and sale vests in the assignee all rights of the assignor (vendor), including the lien, or
equitable mortgage, retained by the vendor as security; but the facts involved in that case
were that there was not merely an assignment by the vendor of his interest in the contract, but
also an express assignment to the assignee of all the right, title, and interest of the vendor in
the land described in the agreement. It was unnecessary in that case, therefore, for the court to
decide what the situation would have been had there not been an assignment of the land, and
much of the language employed by the court was, therefore, dictum. While, as we have said,
there are numerous authorities requiring no more than the mere assignment of the contract,
without mention of the assignment of any property, as a basis for the operation of the rule that
an equitable lien as against the vendor's interest in the land passes as security to the assignee,
as an incident to the principal obligation, there are other authorities which expressly hold to
the contrary. In 66 C.J., pp. 1065, 1066, in treating assignments by vendors, their operation
and effect, it is said: The mere assignment of the contract does not transfer any right in the
land, but is an assignment giving the assignee the authority to receive the purchase money.
Under this statement of the text is cited: Youmans v. Edgerton, 91 N.Y. 403; Jackson v.
63 Nev. 201, 227 (1946) Flyge v. Flynn
v. Edgerton, 91 N.Y. 403; Jackson v. West, 224 Mich. 578, 194 N.W. 1000 (where a vendor,
under an executory contract of sale traded his rights under the contract to another, such other
could become owner of the contract with power to perform or enforce it only by conveyance
of the property, and assignment of the contract to him); Button v. Traders' Trust Co. of
Tacoma, 157 Wash. 625, 289 P. 1010; Grace v. Kuebler, 11 Alta. L. 205, appeal dismissed 56
Can. S.C. 1.
7. In the instant case, if the assignors, in the matter of the foregoing assignment made
April 6, 1942, had contented themselves by assigning merely the contract, it would then be
incumbent upon us to decide which line of authorities to follow; that is to say, whether we
could see our way clear to follow the line of authorities holding that the mere assignment of
the vendor's rights under the contract carries to the assignee, as an incident, such an equitable
interest in the assignor's equitable mortgage or lien as will secure the payment of the
indebtedness held by the third party, to whom the vendor has made the assignment, not to
exceed, of course, the balance due by the vendee upon the purchase money; or whether we
should follow the other line of authorities, which hold that the mere assignment of the
contract carries no interest in the land. But the assignors, Ray Flynn and Georgalee Crider
Flynn, did not content themselves with merely assigning their rights as vendors under the
contract of sale. Perhaps their assignee was unwilling to accept the assignment of the contract
alone, without any mention or express inclusion of property or (which is more likely) perhaps
Mr. Davidson, who was the attorney for the Flynns and drew the instrument, did not deem it
advisable for the Flynns to further encumber the land under contract of sale to Mr. Dressler,
who had, in his contract, expressly assumed the Bridgman mortgage, and might not wish the
status of the property changed by further encumbrance. We do not know what the motive
was, in employing in the assignment, to describe the property assigned (or equitably
mortgaged), the language used, namely, "any and all real and personal property situated
on the real property described in the above agreement," which clearly were words of
limitation, and, in the light of reasonable construction as to their meaning, do not indicate
any intention to include or to assign the basic real property, that is, the land itself.
63 Nev. 201, 228 (1946) Flyge v. Flynn
mortgaged), the language used, namely, any and all real and personal property situated on
the real property described in the above agreement, which clearly were words of limitation,
and, in the light of reasonable construction as to their meaning, do not indicate any intention
to include or to assign the basic real property, that is, the land itself.
In the Flynn-Dressler agreement of September 11, 1941 (plaintiff's exhibit B), for the
sale of the property therein described, and which was clearly referred to by the phrase,
described in the above agreement, used in said assignment (plaintiff's exhibit C), the
parcels of land therein agreed to be sold are enumerated and described, all water rights and
other appurtenances are described, and immediately thereafter, as part of the described
property agreed to be sold to Dressler, is the clause, together with all the improvements
thereon and the ranch equipment now upon the property. (Italics ours.)
8, 9. The Flynns, the assignors in the matter of said assignment to Flyge, and being the
vendors in such contract of sale with Dressler, had, in effect, retained the legal title to the land
and the appurtenances enumerated and described in the agreement, together with all the
improvements thereon and ranch equipment now upon the property, which, in equity,
amounted to an equitable mortgage or lien upon each class of property mentioned, to wit, the
land, the appurtenances, the improvements and the ranch equipment. In assigning to Flyge,
they could, of course, have agreed upon and contemplated an assignment of all said property,
or a part thereof, as security for the $900 note. We must determine the intention in that regard
from the language of the assignment itself, or from the surrounding circumstances, or both.
Pomeroy Eq. Jur., 5 ed., Vol. 4, p. 698; Hibernian Banking Association v. Davis, 295 Ill. 537,
129 N.E. 540, 542; Redemptorist Fathers of State of Washington v. Purdy, 174 Wash. 358, 24
P. 2d 1089 (cited by respondent, Aldabe, in his answering brief).
63 Nev. 201, 229 (1946) Flyge v. Flynn
brief). The note, for the security of which the assignment was made, being for $900, it is
reasonable to believe that the parties to the assignment may readily have concluded that,
inasmuch as the assignment carried to the assignee the right to the balance of $2,250 due
under the provisions of the Dressler contract, upon the purchase price of the property, that an
assignment of the equitable lien and mortgage of the Flynns upon a part of the property,
namely, all the improvements and ranch equipment * * *, would be sufficient security for
the sum loaned. If such were the intention, the language used, all the real and personal
property situated upon the real property described in the above agreement, would be
sufficient to describe such improvements and ranch equipment.
10. In 27 Am. Jur. p. 260, it is said: * * * the term improvements' in the broad sense
includes buildings and fixtures of all kinds. And on page 261 of the same volume it is stated:
As a general rule, improvements of a permanent character made on real estate and attached
thereto without the consent of the owner of the fee, by one having no title or interest, become
a part of the realty and vest in the owner of the fee as his own property within the protection
of the law which renders the removal or destruction thereof an act of waste. (Italics ours.)
So, improvements or fixtures, such as the Diesel engine and deep-well pump, so frequently
referred to in the instant case, if attached to the realty, having, as they do, an individual form
and identity sufficient to distinguish them from the real estate proper, would clearly be, real
property situated on the real property described in the agreement. (Italics ours.) Any
buildings upon the land would be in the same category.
In Jones on Mortgages, vol. 1, p. 237, sec. 202, it is said: A mortgage of improvements
conveys no title to the land itself. It passes only a right to the improvements placed upon the
land by the mortgagor, or an equitable right to compensation for them in case the owner of
the land should take possession.
63 Nev. 201, 230 (1946) Flyge v. Flynn
owner of the land should take possession. A subsequent acquisition of the title to the land by
the mortgagor does not in such case inure to the benefit of the mortgagee. A mortgage of a
building erected on leased land under an agreement, that the lessee might remove it, or the
lessor should pay for it at its appraised value, is a mortgage of realty falling within the
designation of a chattelreal at common law, and should be recorded as a mortgage of real
estate, and not as a chattel mortgage. (Italics ours.)
11. So, from the foregoing, it appears that improvements are real estate, and being upon
real property, we can say with certainty that they constitute, and may be properly described as,
real property situated on real property.
12. A fixture has been, we believe, correctly defined in Frost v. Schinkel, 121 Neb. 784,
238 N.W. 659, on page 663, 77 A.L.R. 1381, wherein it is stated: A distinguished authority
upon real property in a lecture to law students defines a fixture as a chattel brought in and
upon and annexed to real property, which retains its separate identity and becomes realty, but
which under certain circumstances may become personalty again.
In 22 Am. Jur. p. 715, it is said that: The general course of modern decisions, in both
English and American courts, is against the common-law doctrine that the mode of
annexation of a fixture is a criterion, whether slight and temporary or immovable and
permanent, and in favor of declaring all things to be fixtures which are attached to the realty
with a view to the purposes for which it is held or employed.
In footnotes 9 and 10, on said page 715, many cases in support of this doctrine are cited.
It is stated in 22 Cal.Jur. p. 417 that: Real property' included both land and things which
are affixed to land. Mining claims, water courses, oil, growing timber, growing crops (under
certain circumstances), buildings attached to the soil, and other substances so attached as to
be considered in law a part thereof, are real property."
63 Nev. 201, 231 (1946) Flyge v. Flynn
as to be considered in law a part thereof, are real property.
Such things, attached to the land, retain their separate identity, and to distinguish them
from the basic real property itself, it appears that the clause, real property situated on real
property is appropriate and its meaning clear.
In vol. 17, Words and Phrases, Perm. Ed., Fixture, p. 146, occurs the following: Water
pump and gasoline engine and accessories installed on marsh lot to supply water to adjacent
higher lot held fixtures' to higher lot, title to which passed to purchaser at sale under power
in security deed to higher lot. Code 1933, sec. 85-201; Blain v. Corbin, 51 Ga. App. 472, 180
S.E. 854, 855.
In Sowden & Co. v. Craig, 26 Iowa 156, 96 Am. Dec. 125, the property in controversy
consisted of two engines, two boilers, one circular saw, one muley saw and appurtenances.
The court, in its opinion, said: This property, it will be borne in mind is the legitimate
subject for fixtures, and is that class of property about which the law permits parties to
contract so as to control, as between themselves, its character, after being affixed, making it
either personal property or real estate.
Under the subheading, Section 14Constructive Severance., it is stated, in 22 Am.
Jur. p. 727, that:
Parties, as between themselves, may by agreement give a fixture the character of personal
property without an actual severance. Such an agreement, however, will not be permitted to
impair the rights of third persons. Thus, without a physical detachment an owner may by a
proper contract of sale sever a fixture, thereby converting it into personal chattel.
Likewise, it has been held that the giving of a chattel mortgage on fixtures by the owner
thereof will effect a constructive severance. Furthermore, the listing of fixtures, by their
owner as personal assets in a bankruptcy schedule has been held to reinvest them with their
character as personalty and effect a constructive severance.
63 Nev. 201, 232 (1946) Flyge v. Flynn
Citing, in footnotes 7 and 8: Eaves v. Estes, 10 Kan. 314, 15 Am. Rep. 345; Dudley v.
Foote, 63 N.H. 57, 56 Am. Rep. 489; Annotation, 62 A.L.R. 255.
The foregoing authorities all sustain the view that the term improvements used in the
Flynn-Dressler contract, is practically synonymous with the term fixtures, and in view of
the subsequent acts of the parties was evidently believed, at least by Flyge, by the Flynns (if,
at the time said contract was executed, September 11, 1941, they did not then know that the
engine and pump had been removed a few days before), and by their attorney, Mr. Davidson,
to relate to the Diesel engine and deep-well pump affixed to the realty. And, at the time of the
preparation and execution of the assignment (equitable mortgage), April 6, 1942, and before
constructive severance could be deemed to have occurred by its operation and effect, Mr.
Davidson, who drew the assignment, instead of using the same expression, improvements,
used the clause, real * * * property situated upon the real property, which, in the light of the
intention of the parties, was practically synonymous with the term improvements.
13. The term ranch equipment, as used in the said Flynn-Dressler contract, in
connection with the word improvements, was broad enough to include things not in their
nature realty, if affixed to the real estate, such as a Diesel engine and pump; and to include
also personal property situated on the premises (or realty), and undoubtedly was considered
the basis for including, in the description of the property assigned, the term * * * and
personal property situated on the real property. The word equipment is defined in 30
C.J.S., on p. 295, as the collective designation for the articles comprising an outfit, whatever
is used in equipping; also as, The outfit, that is, tools, machinery, implements, appliances,
etc., necessary to enable one to do the work involved; citing, in footnote 7: Linde Air
Products Co. v. American Surety Co., 168 Miss. 877, 152 So. 292; Edkins v. Board of
Education of City of New York, 261 App.
63 Nev. 201, 233 (1946) Flyge v. Flynn
App. Div. 1096, 26 N.Y.S. 2d 996, 997; and citing in footnote 10; Jewett v. School District
No. 25 in Fremont County, 49 Wyo. 277, 54 P. 2d 546, 548, in which it is said, referring to
the term equipment: The term equipment' is broad, and may include articles which are
attached to the building as an integral part thereof, as well as articles not belonging to that
category.
The term all real and personal property situated on the real property, taken literally,
would perhaps be broad enough to include all property forming part of the realty and yet
possessing such individual physical form and character as to be identifiable and
distinguishable from the land itself; such, for example, as growing timber (fructus naturales)
and growing crops (fructus industriales). Also, the term * * * personal property situated on
the real property, construed literally, and referring to the date of the assignment, might
include personal property placed on the premises after the Flynn-Dressler contract was made,
September 11, 1941, and prior to the date of the assignment of April 6, 1942; but, from the
surrounding circumstances, it is not reasonable to believe it was intended to include, in the
assignment, any property not included in the descriptive term all improvements thereon and
the ranch equipment now upon the property, which occurs on the second page of the
agreement of sale between Flynn and Dressler, made September 11, 1941 (plaintiff's exhibit
D). Aside from the land, it was upon the improvements and ranch equipment on the
property, September 11, 1941, when the contract was made, that Flynn had the equitable
mortgage or lien, and it was undoubtedly upon that property that Flynn intended, by the
assignment, to transfer to Flyge an equitable lien and mortgage as security for the repayment
of the loan of nine hundred dollars and interest.
That Flyge, and his attorneys, so understood is clearly indicated by the fact that it is
alleged in lines 8-11, page 2, of plaintiff's amended complaint, that at the time of making
said contract, exhibit A,' the hereinafter described Diesel engine and deep well pump were
upon said premises and constituted part of the ranch equipment," and it is also indicated
by the fact that, on page 3 of said amended complaint, appellant sets forth the
assignment to appellant, containing, as the term descriptive of the ranch equipment,
including the Diesel engine and pump, the clause, "any and all real and personal property
situated on the real property."
63 Nev. 201, 234 (1946) Flyge v. Flynn
described Diesel engine and deep well pump were upon said premises and constituted part of
the ranch equipment, and it is also indicated by the fact that, on page 3 of said amended
complaint, appellant sets forth the assignment to appellant, containing, as the term descriptive
of the ranch equipment, including the Diesel engine and pump, the clause, any and all real
and personal property situated on the real property. That the appellant and his attorneys so
construed it is further indicated by the fact that, upon that basis alone, he prayed for damages
against W. A. Dressler and Allied Equipment, Inc., for the wrongful removal of said
equipment.
14. The appellant then had no difficulty in identifying the engine and deep-well pump as
being real * * * property situated on the real property covered by his lien, and it is notable,
in that connection, that said amended complaint contains no allegation or claim, either in the
body thereof or in the prayer, that the land is included in the assignment, or that he had any
lien thereon; but after, in paragraph V, on pages 4 and 5, alleging facts concerning the deed of
trust to Kearney, and that $632 of the money he, Flyge, loaned Flynn had been paid Kearney,
and that he did so on the agreement of Flynn that he would be given the same security as
Kearney, he prayed, further, in paragraph (c), on page 7 of said amended complaint, that as
security for moneys due him the court adjudge and decree a lien in favor of plaintiff upon the
undivided one-half interest in said premises, and that said lien be foreclosed. In other words,
not on the basis of the assignment or any existing lien by virtue thereof, but because, as he
claimed, there was an understanding that he would have the same security as Kearney, he
asked the court to decree a lien, but did not allege any facts further than the bare assertion of
such an agreement, without identifying it as to form, time or place. And at the trial he utterly
failed to prove any such agreement. From the language employed in the assignment, which is
clear in its meaning, and undoubtedly was merely an expression, in different language, of the
intention to assign "all improvements and ranch equipment" then on the property, and
from the fact that that identical construction was given it and acted upon by appellant, in
his pleadings in this case, it is our conclusion that by the term "all real and personal
property situated on the real property" the parties did not intend an equitable mortgage
on the land, but only upon such improvements or fixtures and ranch equipment as were
then upon the property, and that the parties had the Diesel engine and pump and other
ranch equipment particularly in mind.
63 Nev. 201, 235 (1946) Flyge v. Flynn
language, of the intention to assign all improvements and ranch equipment then on the
property, and from the fact that that identical construction was given it and acted upon by
appellant, in his pleadings in this case, it is our conclusion that by the term all real and
personal property situated on the real property the parties did not intend an equitable
mortgage on the land, but only upon such improvements or fixtures and ranch equipment as
were then upon the property, and that the parties had the Diesel engine and pump and other
ranch equipment particularly in mind.
15. There was no difficulty in determining, or in being able to identify the assigned
property. All real and personal property situated on the real property described in the
agreement, as shown by the above definitions, meant no more than that one seeking to
identify the property go upon the land and, eliminating from consideration the land itself,
determine what fixtures or improvements were annexed to the soil, and what articles of
personal property were there, on the date of the assignment. In Pomeroy on Eq. Jur., vol. 4,
sec. 1235, p. 698, the requirement as to certainty of identification is stated as follows: In
order, however, that a lien may arise in pursuance of this doctrine, the agreement must deal
with some particular property, either by identifying it, or by so describing it that it can be
identified, and must indicate with sufficient clearness an intent that the property so described,
or rendered capable of identification, is to be held, given or transferred as security for the
obligation.
16. Counsel for respondent, Aldabe, in respondent's answering brief, on page 22, reaches,
we believe, an erroneous conclusion that no real property could be situated on real property
so described in said agreement, because, as he has stated, the word situated' means having a
site, situation, or location; as, a town situated on a hill. Citing Webster's International
Dictionary, 2d Ed., Unabridged. This is due to the unwarranted assumption that the term real
property necessarily means the land only, and is not broad enough to include chattels
real which have become part of the realty by being affixed thereto.
63 Nev. 201, 236 (1946) Flyge v. Flynn
necessarily means the land only, and is not broad enough to include chattels real which have
become part of the realty by being affixed thereto.
The improvements or fixtures, including the machinery (the Diesel engine and pump), and
the ranch equipment, which were obviously intended by the parties as the property being
assigned, had a definite situation or location upon the land described in the agreement, as a
town situated upon a hill, and could be as readily identified. The attorneys for the appellant,
apparently sensing that such an assumption strengthened their theory, indicating a reformation
of the assignment, readily acquiesced in such assumption and theory, notwithstanding that,
for many months after the assignment was executed, they had not conceived such an idea, as
shown by their original and amended complaints.
The appellant, on page 34 of his opening brief stated: In and to any real and personal
property on the real property,' etc. obviously contains a false call as to the realty being
situated upon other realty.
17. And cited cases in which calls that were really false had been rejected. In the instant
case, where the obvious meaning is that there was no intention to assign or equitably to
mortgage the land, to reject the words situated on the real property would be entirely
unwarranted. We would thereby be creating an equitable mortgage on the land itself, which
the parties themselves have not created and did not intend to create. On page 39 of his
opening brief, the appellant, along the same line, suggested that if a comma were inserted
after the word real' the clause which reads We further assign all of our right, title and
interest in and to any and all the real' etc. the agreement would be perfectly plain and clear.
This would not accomplish what counsel desire, unless the word property were inserted
before the proposed comma, or in lieu thereof. To do so, however, would likewise be
unauthorized, as we would thereby be creating, and foisting upon the parties, an agreement
not intended by them.
63 Nev. 201, 237 (1946) Flyge v. Flynn
On page 8 of his opening brief, the appellant stated: Being for security, we contend said
document constitutes an equitable mortgage or lien on the lands described in the Dressler
contract, and this too, as between the parties thereto, even if the entire clause regarding
assignment of interest in real and personal property had never been added or if it be now
disregarded.
18. This is quite true, according to one line of authorities, as hereinbefore set forth, for
such equitable mortgage or lien would, according to the theory adopted by such authorities,
be implied as an incident to the assignment of the principal obligation of the purchaser, under
the contract, to pay for the land. But such clause was added, thereby excluding the land from
the agreed assignment and negativing any reasonable basis of fact upon which to predicate a
conclusion that the parties intended to include the land. (Italics ours.) As in the foregoing
instances of suggested changes, this drastic change could not be made by this court and a new
contract thereby created, in the absence of any showing whatever of mistake, by clerical error,
inadvertence or otherwise, or failure of the agreement to conform to the true intention of the
parties, as a ground in equity, for reformation. And such reformation could only be made
upon a proper showing by the pleadings, and subsequent proof, as between the parties, and
certainly could not be permitted to operate to the detriment of a purchaser in good faith for
value, and without notice of any such latent equity.
So much for the language of the instrument. The other instrumentality afforded us as a
means of determining the intention of the parties, is the surrounding cicumstances.
What, if any, circumstances exist, which indicate, or tend to indicate, that the parties to the
assignment intended to assign or transfer, for security, an interest in, or equitable mortgage or
lien upon the land? We find none in the record.
Other surrounding circumstances, in addition to the language used, exist, clearly
disclosing that the parties, at the time of the assignment, intended an assignment of the
improvements or fixtures only, and of the ranch equipment, and not of the land.
63 Nev. 201, 238 (1946) Flyge v. Flynn
language used, exist, clearly disclosing that the parties, at the time of the assignment,
intended an assignment of the improvements or fixtures only, and of the ranch equipment,
and not of the land.
If the land was intended, why were not some words used in the assignment so indicating?
19. Furthermore, very persuasive is the conduct of Flyge and his attorneys, subsequent to
April 6, 1942, as clearly revealing their interpretation of the assignment, as is apparent from
the pleadings; there was no effort made to claim, on the basis of the assignment, any equitable
mortgage or lien, on the land, until appellant moved the court for leave to file an amendment
to the amended complaint in order to bring in Aldabe as a party defendant, and made an
affidavit in support of such motion claiming an equitable mortgage on the land. This was
about twelve months after the assignment was made, and was after repeated efforts, by letters,
and in the action itself, to obtain damages for the removal of the engine and pump, had
proven unsuccessful.
The allegation in paragraph V, pages 5 and 6, of the amended complaint (repeatedly
referred to by respective counsel for the respondents, in their briefs, and by the trial court in
its written opinion deciding on the motion for a new trial), clearly shows, as we interpret
same, that the appellant relied heavily, for security, upon the Diesel engine and pump, which,
as he there alleges, he believed, on April 6, 1942, when he accepted the assignment, were
then upon the premises: That prior to April 6, 1942 plaintiff had knowledge of said ranch
equipment being upon said premises and on said April 6, 1942 plaintiff believed said Diesel
Engine and Deep Well Pump were then upon the premises; that if plaintiff had then known
that said equipment had been removed he would not have consummated said loan transaction;
that without said equipment the security offered would be inadequate.
We do not agree with counsel for appellant, as argued in their reply brief to the
answering brief of respondent, Aldabe, on pages 3 and 4 of appellant's said brief, that
said statement would have been "entirely conservative and true," if Flyge then had
believed he possessed an equitable mortgage or lien upon the land.
63 Nev. 201, 239 (1946) Flyge v. Flynn
in their reply brief to the answering brief of respondent, Aldabe, on pages 3 and 4 of
appellant's said brief, that said statement would have been entirely conservative and true, if
Flyge then had believed he possessed an equitable mortgage or lien upon the land. Flynn's
one-half interest in the land, as shown by the sale to Aldabe, had a sale value of $8,000,
which, after deducting the full amount of the mortgage, $5,500 and interest, left between
$2,400 and $2,500. It is ordinarily unnecessary to sell an undivided one-half interest separate
from the other one-half interest, and thus sacrifice unreasonably, as counsel argues as a basis
for depreciated value. Certainly, the value would have been far more than the $900, and if
Flyge had believed the land was included in his assignment, he could not have truthfully said,
that without said equipment the security offered would have been inadequate. It is very
clear that he did not so believe, and obviously such idea was conceived and developed
subsequent to the filing of the amended complaint, on December 29, 1942, in which the
above quoted allegation occurs.
20. In determining the meaning of a contract or agreement, the interpretation which the
parties themselves have placed upon it is given great, and oftentimes, controlling effect by the
courts. In 12 Am. Jur. p. 787, in dealing with the subject of contracts, in section 249, under
the heading Interpretation by parties, there is stated the prevailing doctrine, as follows: In
the determination of the meaning of an indefinite or ambiguous contract, the interpretation
placed upon the contract by the parties themselves is to be considered by the court and is
entitled to great, if not controlling, influence in ascertaining their understanding of its terms.
In fact the courts will generally follow such practical interpretation of a doubtful contract. It is
to be assumed that parties to a contract know best what was meant by its terms and are the
least likely to be mistaken as to its intention; that each party is alert to protect his own
interests and to insist on his rights; and that whatever is done by the parties during the
period of the performance of the contract is done under its terms as they understood and
intended it should be.
63 Nev. 201, 240 (1946) Flyge v. Flynn
interests and to insist on his rights; and that whatever is done by the parties during the period
of the performance of the contract is done under its terms as they understood and intended it
should be. Parties are far less likely to have been mistaken as to the meaning of their contract
during the period when they are in harmony and practical interpretation reflects that meaning
than when subsequent differences have impelled them to resort to law and one of them seeks
an interpretation at variance with their practical interpretation of its provisions. * * *
In footnotes 4 and 5, on pages 788 and 789, there are many cases cited, from numerous
jurisdictions, in support of the text.
Appellant's attorneys, in their reply brief to answering brief of respondent, Charles Aldabe,
on page 4, have stated: There is no plea and no evidence showing existence of any personal
property which as to value, etc. might be assumed to have been intended by Flynn and
accepted by plaintiff as adequate security for the $900 loan. If it be said the Diesel Engine and
deep well pump might constitute such adequate security, the answer is that said engine and
pump had been sold by Flynn and removed off the premises by the purchaser more than six
months prior to plaintiff making said loan on April 6, 1942. So Flynn at least certainly could
not have intended (on April 6, 1942) the assignment mortgage to cover the then non-existent
engine or pump.
This assumes that Flynn could not have perpertrated a fraud.
If the allegation, in effect, that Flyge believed the Diesel engine and pump were upon the
premises, April 6, 1942 (amended complaint, paragraph V, pages 5, 6), is true, it is clear that
the assignment on April 6, 1942, of the Diesel engine and pump, for security, after Mrs. Flynn
and Mr. Davidson (then attorney for the Flynns) had been informed by Dressler, on April 3,
1942, of their removal, without disclosing same to Flyge, was fraudulent. And it is reasonable
to believe that Mrs. Flynn, after she received such information, had disclosed it to her
husband, prior to the execution of the assignment, three days after she was so informed.
63 Nev. 201, 241 (1946) Flyge v. Flynn
after she received such information, had disclosed it to her husband, prior to the execution of
the assignment, three days after she was so informed. It seems improbable that Flynn, the
owner of the property, knowing he had authorized, in the lease of November 20, 1940,
Dressler to sell the engine and pump, had not been sufficiently careful, as to his own property,
to ascertain whether or not the engine and pump were there when the contract of September
11, 1941, was made, to sell the property to Dressler. Thus Flynn knew, when he assigned to
Flyge, April 6, 1942, not only that the engine and pump had been removed, but also that, if
such removal had occurred prior to the execution of the contract of September 11, 1941, no
cause of action would lie for their removal, and that Flyge was receiving nothing whatever,
not even a possible cause of action (which might or might not have passed to him as assignee
under the assignment of April 6, 1942, without any specific assignment of such cause of
action, if the removal occurred after September 11, 1941), in lieu of the engine and pump. But
it is possible, of course, that Flynn was careless, and had not learned of the removal of said
engine and pump prior to September 11, 1941, and believed, therefore (without any
investigation or any sound basis in law or fact for such belief), as, apparently, Davidson
believed, and as perhaps Mrs. Flynn believed (she testified she did not know of their removal
until Dressler informed her, April 3, 1942) that the same had been removed by Dressler after
September 11, 1941, and that there would be a good cause of action against Dressler and the
purchaser for wrongful removal and conversion, which might inure to the benefit of Flyge, as
assignee.
This meant that Mrs. Flynn and Davidson and, most likely, Flynn, were at least cognizant,
at the time of the assignment, that they were assigning, as being upon the real property a
Diesel engine and pump that were not then there, and without disclosing the fact of their
removal, to Flyge. Flyge's remedy would seem to be an action for damages for the fraud.
63 Nev. 201, 242 (1946) Flyge v. Flynn
action for damages for the fraud. His plight by reason of such unjustified assignment of the
Diesel engine and pump is unfortunate, but he is not entirely free from blame. He could, no
doubt, by proper inquiry of Dressler, when he visited the ranch, April 3, 1942, have
ascertained the facts as to the removal and the time thereof.
If Flyge had been informed by the Flynns and Davidson, as he should have been, of the
removal of the engine and pump prior to April 6, 1942, of which they well knew, he, most
likely, being a business man of experience, would not have completed the transaction without
adequate security in lieu of the engine and pump. It is possible that under such circumstances
he would not have made the loan unless the land itself were assigned, for security. Not
knowing the fact that the engine and pump were not then on the real property, he did not
sense the need for additional security.
While we deplore the fact that it appears that a fraud was perpetrated upon Flyge, we are
powerless upon this appeal, in view of the existing facts and circumstances and well settled
principles of legal construction of such instruments, to read into the assignment words which
are not there. Neither the district court, nor this court, is empowered or authorized to make a
new contract, as between the parties, which they did not themselves make. Neither have we
the power or authority to create an equitable mortgage or lien upon the said property to
compensate Flyge for his loss, or by way of punishing the Flynns for the fraud, reprehensible
though it was.
From the plain meaning of the assignment itself, and also from the surrounding
circumstances, we are impelled to the conclusion that the parties did not intend any
assignment of the assignors' equitable mortgage or lien upon the land, or any interest therein,
but only of the vendor's interest in the agreement of September 11, 1941, including the
payments upon the purchase price of the property, and, also, the assignment of such equitable
lien as the assignors had on April 6, 1942, upon the improvements and ranch equipment
{upon the "real and personal property situated on the real property").
63 Nev. 201, 243 (1946) Flyge v. Flynn
the improvements and ranch equipment (upon the real and personal property situated on the
real property). The appellant was, of course, entitled, as the trial court found, to judgment
upon the promissory note made and executed to him on April 6, 1942, for the principal sum
of $900 and for interest and attorney's fees, as awarded by that court.
21. There is a very reasonable maxim which is frequently applied in the construction of
statutes, and also of deeds, conveyances, contracts, and other instruments, which we believe
is proper and appropriate to apply in the instant case. Such maxim is, expressio unius est
exclusio alterius.
The assignment to appellant, by the Flynns, for security, on April 6, 1942, of all their right,
title and interest in the purchase and sale contract between Ray Flynn and W.A. Dressler,
made and entered into September 11, 1941, expressly mentioned the said contract and all
their right, title and interest in and to any and all real and personal property situated on the
real property described in the above agreement. In the said agreement thus referred to, the
property agreed to be sold was certain parcels of land, together with all the improvements
thereon and the ranch equipment now upon the property. By including in the assignment all
the vendor's rights under the contract, and using the language equivalent in meaning to the
term improvements and ranch equipment, that is to say the term real and personal property
situated on the real property, and omitting the land, the intention to exclude the land is clear.
In the Matter of Attorney General, 2 N.M. 49, on page 56, it is stated: Now no maxim of law
is of more general and uniform application than expressio unius est exclusio alterius,' the
expression of one thing excludes others.' See, also, 50 Am. Jur. 238, and many cases cited in
footnote 19, including: In re Taylor's Estate, 61 Nev. 68, 114 P.2d 1086, 135 A.L.R. 580; In
re Bailey's Estate, 31 Nev. 377, 103 P. 232, Ann.
63 Nev. 201, 244 (1946) Flyge v. Flynn
Cas. 1912A, 748. We cite, also, Virginia & Truckee R. Co. v. Elliott, 5 Nev. 358. In footnote
13 of the text it is said: That which is expressed makes that which is implied to cease.
(Citing Black's Law Dictionary, 2d ed., p. 468). In 25 C.J. 220, note 17, and in 35 C.J.S. 283,
note 57, many hundreds of cases are cited, revealing the extensive application of this maxim.
It necessarily follows from the conclusions we have reached, as above indicated, that it is
unnecessary for us to consider any of the appellant's four basic contentions as stated on page 3
of his opening brief, other than the first thereof, designated as (a), hereinbefore quoted, and
which is disposed of by the foregoing statement of our views.
22. It follows that appellant's assignments of errors Nos. I, II, III, VI, VIII, IX and X are
without merit. As to assignments Nos. IV and V, in view of our conclusion that there was no
equitable mortgage or lien upon the land, by virtue of the assignment of April 6, 1942, to
appellant, it necessarily follows that whether or not such assignment was so recorded as to
constitute constructive notice, and all matters concerning notice, whether actual, imputed or
constructive, are immaterial. If Aldabe had actual notice of the assignment, and its terms, it
would not be any notice to him that the appellant had any interest in the land. Assignment No.
VII related only to respondent, Dressler, and was waived.
For the reasons stated, the judgment of the trial court and that court's order denying
appellant's motion for a new trial are hereby, in all respects, affirmed.
63 Nev. 245, 245 (1946) Canepa v. Durham
LOUIS CANEPA and EVA CANEPA, His Wife, and WILLIAM CANEPA and ESTHER
CANEPA, His Wife, Appellants, v. F.E. DURHAM, Sometimes Known as FRANK
DURHAM, and CORA E. DURHAM, Respondents.
No. 3446
March 15, 1946. 166 P.2d 810.
Where judgment and order denying motion for new trial were reversed on appeal, such reversal was
not a final disposition of the case which would prevent trial court from granting a new trial.
A point not embraced in appellant's opening brief need not be considered.
The effect of an unqualified reversal of judgment and order denying new trial was to leave the parties
where they stood before the judgment and to remand the case for a new trial, and refusing a new trial
would be error.
4. New Trial.
Where a motion for new trial in form was in fact a motion for new trial only to take evidence from a
single issue and was so considered, trial court could entertain a subsequent motion for new trial without
complying with district court rules relative to a motion for new trial after previous motion had been
denied.
Appeal from Second Judicial District Court, Washoe County; William D. Hatton, Judge,
presiding.
Action by F.E. Durham, sometimes known as Frank Durham, and another against Louis
Canepa and another for rescission of a land contract and cancellation of deed. From an order
granting plaintiffs a new trial, after reversal of judgment in their favor on prior appeal,
defendant appeals. Affirmed.
Withers & Edwards, of Reno, for Appellants.
Clyde D. Souter and Clel Georgetta, both of Reno, for Respondents.
OPINION
On a former appeal in this case the judgment of the Second judicial district court and order
denying a motion for a new trial, were reversed. 62 Nev. 417, 153 P. 2d 899, 904. The order
of reversal reads: The judgment and order appealed from are reversed. Thereafter the said
district court granted respondents a new trial. This appeal is from that order.
1. Appellants contend that the order of reversal finally disposed of the case and that the
lower court was thereafter without authority to grant a new trial.
The question is not one of first impression in this court. In Guisti v. Guisti, 44 Nev. 437,
196 P. 337, 338, an order of reversal substantially the same as in the instant case was held no
bar to a new trial. The court in that case said: We are now called upon to determine whether
a simple judgment of reversal is a bar to further proceedings in the same suit. The question is
one of first impression in this court, and we have given it the attention its importance
deserves, and our conclusion, in brief, is that the general order of reversal was to leave the
litigation in the situation it was prior to the entry of the judgment. In support of this
conclusion we cite with approval the early California cases, which have been reaffirmed,
followed, and cited in several later cases, of Stearns v. Aguirre et al., 7 Cal. 443, and Phelan
v. Supervisors of San Francisco, 9 Cal. 15.
We see no good reason for abandoning the rule stated. Appellants do not question its
soundness, but they argue that the facts of this case distinguish it from Guisti v. Guisti, in that
here it is apparent from the opinion that the adjudication was intended to be a final
disposition of the case. They refer to Ryan v. Tomlinson, 39 Cal. 639 and other California
cases in support of this contention. In response to this argument we say that the original
opinion in the instant case does not manifest such intention.
original opinion in the instant case does not manifest such intention. It is not expressed in the
opinion nor plainly implied. The conclusion of appellants' counsel in this respect is based on
inference, not at all conclusive, and the opinion is capable of a contrary construction, as
counsel for respondents points out. Certainly in a situation of this kind the granting or
refusing a new trial ought not to depend on what conclusion the lower court might reach in a
particular case. This would tend to cause delay in the final adjudication of the issues
involved. We therefore adhere to the rule in Guisti v. Guisti, supra, and consider it stare
decisis of the question presented.
2, 3. There is no merit in appellant's contention made in their reply brief that respondents
were not entitled to a new trial because it did not appear that an injustice had been done them
by any ruling of the lower court. This point was not embraced in appellants' opening brief and
therefore would not be considered had not respondents undertaken to discuss it in their
answering brief. Berrum v. Georgetta, 60 Nev. 1, 93 P. 2d 525, 98 P.2d 479. In fact,
appellants admitted in their opening brief that respondents would be entitled to a new trial by
the mere order of reversal if it was not intended as a final adjudication. This was a correct
statement of the rule applicable in such a situation because the effect of the unqualified
reversal was to leave the parties where they stood before the judgment and to remand the case
for a new trial. Guisti v. Guisti, supra; Phelan v. Supervisors of San Francisco, supra; Heidt v.
Minor, 113 Cal. 385, 45 P. 700. It would have been error if the lower court had refused a new
trial. Myers v. McDonald et al., 68 Cal. 162, 8 P. 809.
4. There is likewise no merit in appellants' contention that the lower court exceeded its
jurisdiction in entertaining a second motion for a new trial without complying with rule XI of
the district court rules after a previous motion for a new trial had been denied.
While the first motion was in form a motion for a new trial, it was in fact a motion for a new
trial only to take evidence on a single issue as to which the supreme court in its original
opinion had pointed out, evidence was erroneously excluded. It is clear from the opinion of
the lower court on the first motion that it was so considered by the movant and treated as such
by the court. In this regard the court said: Plaintiffs have not suggested that they desire, on a
new trial, to put on further or any proofs relative to the importance of the reservation referred
to in the sale agreement. On the contrary, they suggest the confining of the proofs on a new
trial to the matters which were excluded by this court's erroneous rulingthat is to say,
proofs relating to plaintiffs' damages and that the amount thereof is unascertainable.
And again recurring to the above the court said: Plaintiffs, however, as already
mentioned, confine their request and their argument to the matter of the proofs only which
were erroneously excluded by the trial court.
That respondents contemplated a proceeding of that character is indicated by the fact that
at the time of filing of the petition for a rehearing they requested that in the event the petition
was denied this court remand the case to the lower Court for that purpose. 62 Nev. 429, 155
P.2d 1009.
The order granting a new trial is affirmed.
____________
63 Nev. 249, 249 (1946) Smith v. District Court
STATE OF NEVADA, Ex Rel. ALFRED MERRITT SMITH, State Engineer of the State of
Nevada, Relator, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for the County of Humboldt, and THOMAS
J.D. SALTER, Judge of Said Court, Respondents.
No. 3442
March 30, 1946. 167 P.2d 648.
1. Contempt.
In criminal contempt cases, there is no right of appeal within meaning of statute providing that writ of
review shall be granted where jurisdiction has been exceeded and there is no appeal or any plain, speedy
and adequate remedy. Comp. Laws, sec. 9231, as amended by Stats. 1939, c. 108; sec. 9237.
2. Judgment.
Where a judgment is attacked in other ways than by proceedings in the original action to have it
vacated or reversed or modified, or by proceeding in equity to prevent its enforcement, the attack is a
collateral attack.
3. Judgment.
Generally, a judgment is not subject to collateral attack if the court rendering it had jurisdiction of
subject matter and parties.
4. Judgment.
A judgment which, though erroneous, is valid, is not subject to collateral attack, but a void judgment
is subject to such attack.
5. Judgment.
In proceedings brought to enforce a judgment, the defendant is not precluded from showing that the
judgment was void.
6. Judgment.
A judgment or decree may be so uncertain or indefinite as to be impossible of administration,
unenforceable and void.
7. Judgment.
A judgment may be partially valid and partially void.
8. Contempt.
Indefiniteness and uncertainty in a judgment or degree may constitute a good defense in contempt
proceedings.
9. Contempt.
In criminal contempt proceedings against defendants charged with violation of decree determining
water rights, district court did not exceed its jurisdiction or fail to pursue its authority regularly in making
rulings sustaining demurrers of defendant on ground that decree determining water rights was too
indefinite and uncertain and lacked vital matters, and hence writ of review did not lie against
district court to review those rulings.
hence writ of review did not lie against district court to review those rulings. Comp. Laws, sec. 9231, as
amended by Stats. 1939, c. 108; sec. 9237.
10. Certiorari.
In certiorari, the supreme court's inquiry is limited to the question whether lower court acted within its
jurisdiction in making rulings and does not extend to question whether rulings were correct. Comp. Laws,
sec. 9231, as amended by Stats. 1939, c. 108; sec. 9237.
11. Certiorari.
A court, though having jurisdiction of the subject matter and of the parties, may nevertheless exceed
its jurisdiction within meaning of certiorari statute. Comp. Laws, sec. 9231, as amended by Stats. 1939, c.
108; sec. 9237.
12. Judgment.
Rule that defects in a decree should be remedied before decree becomes final, is not applicable to
decrees which are entirely invalid.
13. Judgment.
The passage of time, however great, does not affect the validity of a judgment nor render a void
judgment valid.
Writ of Review by the State, on the relation of Alfred Merritt Smith, State Engineer of the
State of Nevada, against the Sixth Judicial District Court of the State of Nevada, in and for
the county of Humboldt, and Thomas J.D. Salter, Judge of that court, to review respondents'
action in sustaining demurrers to complaints in criminal contempts. Application denied.
General, and W.T. Mathews, Special Assistant Attorney General, of Carson City, for Relator.
William M. Kearney, of Reno, for Respondents.
OPINION
In May 1935, after due proceedings under the water law, secs. 7890-7978, N.C.L. 1929,
the Sixth judicial district court in and for Humboldt County entered its "Findings of Fact,
Conclusions of Law and Decree in the Matter of Determination of the Relative Rights in
and to the Waters of the Little Humboldt River and Its Tributaries in Humboldt and Elko
Counties."
district court in and for Humboldt County entered its Findings of Fact, Conclusions of Law
and Decree in the Matter of Determination of the Relative Rights in and to the Waters of the
Little Humboldt River and Its Tributaries in Humboldt and Elko Counties. Said decree will
sometimes be referred to herein as the Carville decree. No appeal has ever been taken from it.
Henry McCleary Timber Company, Godchaux Cattle Company, Gerhard Miller, Sr., and
Gerhard Miller, Jr., are four of the several dozen ranch owners and water users on said Little
Humboldt River stream system. They were parties, or are successors in interest to parties,
whose water rights were adjudicated in the Carville decree.
In April 1945, the state commenced a criminal contempt proceeding in said district court
against Frank McCleary, manager of the timber company. The complaint alleged that
defendant had interfered with the state engineer and his assistants in the distribution of the
waters of said river and its tributaries, including Martin Creek. It charged that between
January 25 and March 2, 1945, defendant unlawfully and contemptuously placed an earthen
dam in the channel of Martin Creek in such manner as to divert all its waters onto the timber
company's lands and prevent the state engineer or his assistants from distributing to said cattle
company, said Millers, or either of them, water which had been decreed to them in and by the
Carville decree; that defendant failed to remove said dam, notwithstanding notice directing
him to do so; that on two occasions defendant failed to install a head gate at a certain
diversion point on Martin Creek, notwithstanding notice from the state engineer, pursuant to
sec. 7941, N.C.L. 1929, requiring him to do so. Said charges and others set forth in the
complaint are therein alleged more specifically, at greater length and in more detail than here;
and it is alleged that defendant's acts prevent the state engineer and his assistants from
distributing the waters of said river and its tributaries pursuant to said decree, and
constitute unlawful interference with officers of this court.
of said river and its tributaries pursuant to said decree, and constitute unlawful interference
with officers of this court.
Defendant demurred to said complaint upon the ground that it failed to state facts
sufficient to constitute a criminal contempt or any contempt, and the further ground that the
court was without jurisdiction.
In May 1945, the state commenced another criminal contempt proceedings in said district
court against said Frank McCleary and three other defendantsGose McCleary, Diego
Gurridi and Dimas Alzola. Among other charges, the complaint alleged that on May 1, 1945,
two water commissioners posted a statutory notice of regulation of diversion of water at a
point on the Grayson ditch, also known as the Big ditch, where there were remnants of an old
dam, the purpose of said commissioners being to keep the river channel at that point open in
order that water would flow down and serve the water rights of Gerhard Miller, Jr., and
Gerhard Miller, Sr.; that on May 5, 1945, defendants Gurridi and Alzola, employees of the
McClearys, willfully and contemptuously dammed up the river channel and stopped the flow
of all water therein, diverting all of it onto the McCleary lands; that said unlawful and
contemptuous conduct on the part of the defendants prevents the state engineer and his
assistants from delivering to the Millers the water to which they are entitled under the
Carville decree, prevents the state engineer and his assistants from distributing the waters of
the Little Humboldt River and its tributaries pursuant to said decree, and constitutes unlawful
interference with officers of this court. Other charges were set forth in the complaint and, as
in the first case, the matters therein were alleged at greater length and in greater detail than
here given.
Defendants demurred to said last-mentioned complaint upon the ground that it failed to
state facts sufficient to constitute a criminal contempt, and the further ground that the court
was without jurisdiction to hear or entertain said complaint.
The demurrers were argued at great length, and it was stipulated that in considering them the
court could examine the Carville decree along with the complaints. In due time the court
signed and filed written orders sustaining both demurrers.
In the first ruling the court, among other things said: An examination of the decree also
indicates that it is uncertain in many respects in that the point of diversion and the names and
locations of the ditches through which water is to be distributed are not specified. Many
essential items necessary to make a decree definite and certain without leaving anything to be
interpreted by the water users or the water commissioners are omitted from the decree. In
other words, the decree leaves certain vital matters to be interpreted either by the water
commissioners or by the water users. The supreme court has said on several occasions that a
decree involving water rights should be as definite and certain as language can make it.
In ruling on the demurrer in the second case the court said, in part:
While the facts in the instant case are different than the facts in the first contempt case,
they are in their nature similar and involve the same decree and the same property and the
claimed water rights and ditches of the same parties. The Court has announced its decision in
the case of State of Nevada vs. Frank McCleary and the same legal situation exists here as
was announced in that case.
The Court has at the suggestion of counsel for both parties examined the decree so as to
ascertain the water rights which the State Engineer alleges he is distributing, but on account
of the uncertainty involved in connection with the points of diversion, ditches, dams, as well
as the confusion concerning the channels and ditches, the Court is unable to find that the
complaint shows a contempt has been committed.
The complaint is not definite and certain enough in the light of the decree to indicate to
the Court that the State Engineer was attempting to distribute water in accordance with
the decree.
State Engineer was attempting to distribute water in accordance with the decree. It was said in
the case of State ex rel. Hinckley v. Sixth Judicial District Court [53 Nev. 343], 1 P.2d 105,
that it would not be a contempt of court to interfere with the State Engineer unless he was
distributing water in accordance with the decree.
The cases cited in the companion case of State of Nevada v. Frank McCleary heretofore
argued, establishes the rule that a judgment in a water case must be specific and certain. It
must specifically determine the rights of the parties in a definitive manner. 3 C.J. 1197,
section 131.
The case entitled In re Bassett Creek and its Tributaries in White Pine County,' Nev.,
155 P. 2d 324, seems to be in point when the complaint for a criminal contempt is examined
in the light of the terms contained in the decree.
I am unable to find from the complaint that a contempt has been committed.
1. There being no right of appeal to this court in criminal contempt cases (Phillips v.
Welch, 11 Nev. 187), nor, as contended, any plain, speedy, and adequate remedy in the
premises, the state has applied to this court for a writ of review, claiming that the district
court, in sustaining the demurrers, exceeded its jurisdiction. Attached to the application and
affidavit are copies of the complaints, demurrers, rulings on the demurrers, and a copy of the
Carville decree.
It is alleged that in arguing the demurrers, defendants' main attack upon the complaints
was that the Carville decree was so indefinite, uncertain and invalid and void as to the
defendants that no contempt on their part could have been committed as alleged in said
complaints, for the reason that said decree contains no definite statement and specification of
points of diversion of the ditches of the parties involved in the contempt proceedings.
It is further alleged that in many instances the Carville Decree does not contain specific
designations of the points of diversion and/or the names of ditches of particular water rights
granted and decreed therein, but in lieu thereof gives the source of the water and refers to the
cultural maps pertaining to such water rights filed in the adjudication proceeding in said
district court; that said cultural maps then and there were made a part of said decree by
reference * * *. It is also alleged that at the hearings on the demurrers relator argued and
urged upon the court below that the cultural maps should be examined and considered in
construing said decree; but that relator believes said maps were not examined or considered
by the court, relator's belief being based on the language employed by the court in its ruling
on the first demurrer, including the words After considering the arguments of counsel and
examining the complaint in connection with the decree * * *no mention of maps being
made by the court in either of its rulings in the two cases.
Following the filing of said application and affidavit, an order to show cause was issued
and served. Respondents demurred to the application and affidavit, and noticed a motion to
strike parts and the whole thereof from the files and to quash and vacate the order to show
cause. Later they served and filed their return to the order to show cause and their answer to
the application and affidavit. All said matters were heard together.
Section 9231, N.C.L. 1929, as amended, Stats. of Nev. 1939, chap. 108, p. 114, provides
in part that The writ shall be granted in all cases when an inferior tribunal, board, or officer,
exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer
and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate
remedy.
Section 9237, N.C.L. 1929, reads: The review upon this writ shall not be extended further
than to determine whether the inferior tribunal, board, or officer has regularly pursued the
authority of such tribunal, board, or officer."
regularly pursued the authority of such tribunal, board, or officer.
Respondents (defendants) maintain that there was no error in the lower court's rulings, and
further that if there was, it was error within jurisdiction. Relator admits that the district court
had jurisdiction of the subject matter and of the parties in both contempt proceedings; also,
that it had jurisdiction to rule, though erroneously, that each complaint failed to state facts
sufficient to constitute contempt. But he contends that the lower court went far beyond the
complaints in its rulings on their sufficiency. Those rulings, he says, show that said court
went behind the complaints and in effect declared the Carville decree so uncertain and
invalid as to destroy its effectiveness as a solemn and binding judgment and decree affecting
many valuable property rights and thereby undermining the effective administration and
enforcement of such decree by the administrative agency provided by the laws of this state for
that very purpose. * * * We submit that in entertaining and permitting the attack made upon
the Carville decree in the instant matter and thereafter making the ruling it did make thereon
the lower court exceeded its jurisdiction * * * The district court's ruling on the demurrers was
in excess of its jurisdiction when it, first, entertained a collateral attack upon the Carville
decree, and then second, ruled in effect that the collateral attack was well taken * * *.
2-5. Where a judgment is attacked in other ways than by proceedings in the original action
to have it vacated or reversed or modified, or by a proceeding in equity to prevent its
enforcement, the attack is a collateral attack. Generally, a judgment is not subject to
collateral attack if the court which rendered it had jurisdiction of the subject matter and of the
parties. A judgment which, although erroneous, is valid is not subject to collateral attack, but
a void judgment is subject to such attack; and in proceedings brought to enforce a judgment,
the defendant is not precluded from showing that the judgment was void.
that the judgment was void. Long v. Tighe, 36 Nev. 129, 133 P. 60; 31 Am. Jur., Judgments,
sec. 576; Restatement of the Law, Judgments, secs. 11, 11a, 11b, 11f. These rules are so well
established as not to require citation of further authorities.
6, 7. A judgment or decree may be so uncertain and indefinite as to be impossible of
administration, unenforceable and void. And a judgment may be partly valid and partly void.
In re Bassett Creek, 62 Nev. 461, 155 P.2d 324, 327; Tudor v. Jaca, Or., 165 P. 2d 770, 772;
30 Am. Jur., Judgments, sec. 128, pp. 1195, 1196, note 63; 34 C.J., Judgments, sec. 563, 564,
note 32; 67 C.J., Waters, sec. 546, note 80; 31 Am. Jur., Judgments, sec. 405.
8. It is well settled that indefiniteness and uncertainty in a judgment or decree may
constitute a good defense in contempt proceedings. State v. Bailey, 132 Or. 350, 285 P. 809;
Wall v. Superior Court of Yavapai County, 53 Ariz. 344, 89 P. 2d 624, 628; 17 C.J.S.,
Contempt, sec. 14, p. 19, note 34; 13 C.J., Contempt, sec. 17; 43 C.J.S., Injunctions, sec. 259,
subsec. b; sec. 275, subsec. b, p. 1046, note 93.
The Carville decree should be considered as a part of each complaint in the two district
court contempt cases. If each of said complaints, so considered, shows on its face that the
provisions of the Carville decree, alleged to have been violated by defendants, are void, then
the lower court had jurisdiction to sustain the demurrers, unless relator is correct in his
contention that said court exceeded its jurisdiction and failed to regularly pursue its authority
when it permitted defendants to attack the validity of said decree and based its rulings upon
the ground that said decree, insofar as it affected the defendants, was so indefinite and
uncertain as to be unintelligible, unenforceable, incapable of administration, and void.
It is our opinion that the lower court did not exceed its jurisdiction, nor fail to regularly
pursue its authority in making the rulings complained of. Central Pac. R. Co. v.
Pac. R. Co. v. Board of Equalization of Placer County, 43 Cal. 365; Roberts v. Police Court,
185 Cal. 65, 195 P. 1053; State v. District Court, 27 Mont. 280, 70 P. 981. And cf. Cornbleet
v. Second Judicial District Court, 58 Nev. 227, 73 P.2d 828; Covington v. Second Judicial
District Court, 56 Nev. 313, 50 P.2d 517; State v. McFadden, 43 Nev. 140, 182 P. 745. As
many private law libraries do not have the early California decisions, we quote one paragraph
from the opinion of Chief Justice Wallace in Central Pac. R. Co. v. Board of Equalization of
Placer County, supra: The mere grounds upon which the determination is reached may or
may not be correct in themselves. These may be supported by evidence inadmissible when
tested by the rules governing the introduction of evidence. The reasons given for the
conclusion arrived at may or may not be such as address themselves to the judgment of
others; but erroneous views entertained, or incorrect reasons assigned, or evidence
erroneously admitted in deciding the controversy, do not make a case of want of jurisdiction.
The judgment of the Board of Equalization upon the question of valuation involved was the
purpose, and the lawful purpose, had in view by the railroad company when it presented its
petition before it praying a reduction of valuation. The judgment of the Board upon that
question was obtained. That judgment was to the effect that no reduction ought to be made.
The company now come here to say that in arriving at that particular judgment the Board
exceeded its powers. The proposition then is, that if a question of valuation be brought before
the Board, and it determine it one waythat is, reduce the valuationthen it is a
determination within its jurisdiction to make; but if it determine it the other waythat is,
refuse to make the reductionthen such determination is one without the lawful jurisdiction
of the Board to make. But the conclusive answer to this is, that jurisdiction over a question
presented being conceded, carries with it necessarily the authoritythe mere powerto
decide the question either waythat to hold that there was jurisdiction to decide in only
one way, and not in the other, is to say that there was in reality no question before the
Board at allit is to dictate the determination in advance."
hold that there was jurisdiction to decide in only one way, and not in the other, is to say that
there was in reality no question before the Board at allit is to dictate the determination in
advance.
The district court's rulings may have been grievously erroneous, but if so it was error
within jurisdiction. The main issue in the contempt proceedings was whether certain parts of
the Carville decree are void. In order to determine whether the lower court ruled correctly in
permitting defendants to attack that decree, it would be necessary for this court to decide the
main issue in the contempt proceedings. This, in effect, would require a decision on the
merits, and would mean converting the writ of review into an appeal.
In our opinion the lower court regularly pursued its authority. It had jurisdiction, not only
of the subject matter and parties, but also to rule on the demurrers and to sustain them on the
ground that they did not allege sufficient facts to constitute contempts. Relator, as well as the
defendants, stipulated that the court could examine the Carville decree, and the application
and affidavit show that it was relator's desire that the cultural maps should also be examined
by the court. It thus seems clear that the court had jurisdiction to entertain the attacks on
certain provisions of the Carville decree, and if it be assumed for purpose of discussion that
the court's rulings were wrong, it nevertheless had the same power to make such rulings as it
had to make correct ones. Wherever power is lodged, it may be abused; but this forms no
solid objection against its exercise. Confidence must be reposed somewhere; and if there
should be an abuse, it will be a public grievance, for which a remedy may be applied by the
legislature, and is not to be devised by courts of justice. Ex parte Kearney, 7 Wheat. 38, 45,
5 L. Ed. 391; State v. McFadden, supra, 43 Nev. at pages 148, 149, 182 P. 745.
10. If these cases were before us on appeal, we would have the power and it would be our
duty to decide whether the rulings of the lower court were correct; but in certiorari our
inquiry is limited to the question whether the lower court acted within its jurisdiction in
making those rulings.
but in certiorari our inquiry is limited to the question whether the lower court acted within its
jurisdiction in making those rulings.
Relator places much reliance on the cases of Goodall v. Superior Court, 37 Cal. App. 723,
174 P. 924, and Taylor v. Superior Court, 20 Cal. 2d 244, 125 P. 2d 1. We think the answer to
that position, in a case such as that now before us, is to be found in Roberts v. Police Court,
supra, at pages 1054, 1055 of 195 P.
11. In the consideration of this case we have at no time lost sight of the fact that a court,
though having jurisdiction of the subject matter and of the parties, may nevertheless exceed
its jurisdiction within the meaning of our certiorari statutes. Radovich v. Western Union Tel.
Co., 36 Nev. 341, 344, 135 P. 920, 136 P. 704. But, as stated in State v. McFadden, supra [43
Nev. 140, 182 P. 748], the irregularities discussed and ruled upon in the Radovich and certain
other Nevada cases showed an obvious departure from some prescribed rule of procedure,
and consisted of the omission on the part of the trial judge to do something that was necessary
for the orderly conduct of the case, or doing it at an unreasonable time and in an improper
manner.
While we might not agree with the views of the district court as to the invalidity of certain
parts of the Carville decree, we cannot say that there is nothing whatever of a substantial
nature in each of the complaints upon which to base that court's conclusions.
In some jurisdictions, where there is no appeal or other satisfactory remedy, certiorari may
lie to review determinations involving new and difficult questions and important public
questions, even where a lower tribunal has not exceeded its jurisdiction. But Nevada is not
one of those jurisdictions. In State v. Justice Court, 46 Nev. 133, 207 P. 1105, 1106, this
court said: The rule is so well established that the limit of the inquiry upon certiorari is the
question of the jurisdiction of the court, that it should never again be questioned, directly or
indirectly, in this jurisdiction."
indirectly, in this jurisdiction. We are not advised of any exception to this rule, unless it be
in that part of sec. 9231, N.C.L. 1929, which was added by the amendment of 1939, Stats. of
Nev. 1939, chap. 108, p. 114. If the scope of the writ of review is to be further enlarged in
this jurisdiction, it must be by way of legislative enactment or constitutional amendment.
12. Relator contends that if there were any defects in the Carville decree so far as the
rights of defendants are concerned, they should have been remedied in the adjudication
proceedings before the decree became final. This rule may be entirely sound with respect to
decrees which are merely irregular or erroneous; we do not think it is applicable to those
which are entirely invalid. 1 Freeman on Judgments, 5th Ed., sec. 305, note 6.
13. Relator emphasizes the fact that the Carville decree has been in effect more than ten
years. With regard to this point we quote from 31 Am. Jur., judgments, sec. 401, pp. 66, 67,
notes 19, 20, 21: It is also worthy of notice that the passage of time, however great, does not
affect the validity of a judgment; it cannot render a void judgment valid. It may, however,
affect presumptions of validity applicable to a judgment. See also sec. 423 of the same
article.
Nothing that has been said in this opinion is to be understood as expressing approval of the
rulings made by the district court. And the court does not decide whether secs. 7940, 7942,
7943, and 7968, N.C.L. 1929, or any of them, constitute plain, speedy, and adequate remedies
within the meaning of sec. 9231, N.C.L. 1929; nor do we determine what remedies other
water users on the Little Humboldt River stream system may have against respondents for
injuries growing out of their allegedly wrongful conduct.
Application denied.
____________
63 Nev. 262, 262 (1946) Ex Parte McKay
In the Matter of the Application of LADELL McKAY
for a Writ of Habeas Corpus.
No. 3460
April 16, 1946. 168 P.2d 315.
1. Constitutional LawCriminal Law.
Permitting defendant to be handcuffed during trial, or denying defendant's motion to have handcuffs
removed, did not deprive defendant of constitutional right to a fair trial, in view of trial court's knowledge
of defendant's previous acts and character and the evidence establishing beyond reasonable doubt his
guilt of murder of the first degree. Const. Nev. art. 1, secs. 1, 8; U.S.C.A. Const. Amend. 14, sec. 1.
2. Habeas Corpus.
In habeas corpus proceeding to obtain release from custody under judgment of conviction of murder
of first degree, affidavits and testimony tending to show that confession admitted in evidence at trial was
obtained by duress were immaterial, since court could not retry murder case on the merits.
3. Habeas Corpus.
Habeas corpus cannot be used to authorize the exercise of appellate jurisdiction and court in such
proceeding has no jurisdiction to review a case on its merits.
4. Habeas Corpus.
Errors and irregularities not involving questions of jurisdiction, including errors in admission or
exclusion of evidence, are beyond scope of inquiry by habeas corpus.
5. Habeas Corpus.
Admissibility of confession allegedly obtained by duress should have been inquired into at trial for
murder, and any error in admitting such confession should be corrected on appeal and could not be
reviewed or corrected on habeas corpus, though defendant did not realize legal significance of confession
until after trial.
6. Habeas Corpus.
Newly discovered evidence that confession admitted in evidence at trial for murder was obtained by
duress was available only on a motion for new trial or as basis of a plea for executive clemency but
afforded no ground for relief in habeas corpus.
7. Criminal Law.
Defendant was not deprived of his statutory rights to freedom from unnecessary restraint by being
handcuffed during trial for murder. Comp. Laws, sec. 10656.
Original Proceeding in the matter of the application of Ladell McKay for a writ of habeas
corpus. Proceeding dismissed and petitioner remanded to custody.
George Lohse, of Reno, for Petitioner.
Alan Bible, Attorney General, Homer Mooney and George P. Annand, Deputy Attorneys
General of Carson City, and Melvin E. Jepson, District Attorney of Washoe County, of Reno,
for Respondent.
OPINION
The petitioner, Ladell McKay, on the 25th day of January 1945 was convicted in the
Second judicial district court of the crime of murder of the first degree, by the killing of one
Robert L. Flindt. The jury before whom he was tried did not in their verdict fix the
punishment and the trial court, on the 7th day of February 1945 pronounced judgment and
sentence of death upon petitioner and placed him in the custody of the warden of the state
prison where he now remains. He appealed from said judgment and from the order denying
his motion for a new trial, and the supreme court made an order suspending the execution of
said judgment and sentence until the determination of the appeal.
On the 16th day of January 1946 the judgment and order of the trial court were affirmed
and this court directed the district court to make the proper order for the carrying into effect
by the warden of the state prison of the said judgment. State v. McKay, 63 Nev. 118, 165
P.2d 389. Petitioner filed a petition for rehearing which was denied on March 19, 1946. 63
Nev. 180, 167 P.2d 476. This court filed its opinion in each instance.
Pursuant to the above-mentioned directive the trial court issued a warrant of execution and
ordered said warden to execute the judgment and sentence of death within the limits of the
state prison on Monday, April 22, 1946. Whereupon petitioner filed in this court a petition for
a writ of habeas corpus, which was issued by the chief justice. In his petition he alleged that
he is imprisoned unlawfully and restrained of his liberty in the Nevada state prison by
Richard Sheehy, the warden thereof.
the Nevada state prison by Richard Sheehy, the warden thereof. The illegality of his
imprisonment is put upon the ground of his having been handcuffed in the presence of the
jury by whom he was tried during his trial for murder in the said district court. In this regard it
is alleged that he was denied the protection of the law as guaranteed by article XIV, section I
of the amendments to constitution of the United States of America, and article I, section I and
section VIII of the constitution of the State of Nevada. The illegality of his imprisonment is
also put upon the ground that he was stripped, beaten and slapped by the chief of police of the
city of Reno on November 26, 1944, whereby he was forced to admit to said chief of police
that he engaged in an altercation with Robert L. Flindt for the purpose of robbing him, which
forced admission was not true. In this connection he alleged that he did not realize the legal
significance of said admission, and did not communicate the circumstances of its
procurement to his attorney, George Lohse, Esq., who did not learn of said beating and
slapping until during the month of March 1946. Petitioner further alleged that he was denied
his rights as provided in section 10656, N.C.L. 1929, in that he was subjected to more
restraint than was necessary for his detention to answer the charge of murder for which he
was tried, by reason of his being handcuffed as aforesaid.
The respondent warden on April 10, 1946, filed his return to the writ and brought
petitioner into court, at which time a full hearing was had, during which petitioner was
represented by his attorney, George Lohse, Esq., and the matter was submitted to this court
for decision.
1. Petitioner contends that he was denied his constitutional right of due process as
guaranteed in the federal and state constitutions by reason of his being handcuffed during the
trial as alleged in his petition. This question was decided adversely to petitioner on his appeal
in this court in State v. McKay, 63 Nev. 118, 165 P.2d 3S9.
P.2d 389. In that case we held that the trial court did not abuse its discretion in permitting
petitioner to be tried with handcuffs, or in refusing to order them removed on his motion, and
that no legal or constitutional rights of petitioner were transgressed thereby. Nothing
appearing in the petition for the writ of habeas corpus, or from the proceedings had thereon,
or argument of his counsel, or otherwise, has caused us to doubt the soundness of the
conclusions we reached and expressed in State v. McKay, supra, and in our opinion denying a
rehearing. To again discuss in detail as we did in these opinions, the evidence bearing on the
question of the shackling and the applicable law, would serve no useful purpose and we
decline to do so. We content ourselves here merely in pointing out that in those opinions we
gave to the questions posed by petitioner being handcuffed during the trial, and the trial
court's refusal to remove the handcuffs on his motion, the most careful consideration and
discussed it extensively, not only as to its legal aspects, but with reference to constitutional
guarantees. It will be observed that in those opinions the evidence was reviewed exhaustively
and that it was found not only that there was substantial evidence in the record to support the
judgment, but that the evidence proved petitioner guilty of murder of the first degree beyond a
reasonable doubt; and we stated that had it not been so we would have reversed the case. We
went further in this regard than the law requires in such a case because we believed that the
great weight of evidence showing guilt of first degree murder bore strongly against the
probability of injury to the accused by reason of the shackling. This together with the trial
court's knowledge of the past criminal conduct of petitioner, including his escape from a
military guardhouse and his attempted escape from the Washoe County jail only two days
before his trial as detailed in said opinions, and the principles of law involved therein stated,
convinced us that the trial court did not abuse its discretion in permitting petitioner to be tried
with handcuffs, or in refusing to order them removed, and that the court's action in these
respects did not deprive petitioner of a fair trial.
refusing to order them removed, and that the court's action in these respects did not deprive
petitioner of a fair trial. We refer to State v. McKay, supra, as authority warranting the
dismissal of this proceeding so far as the shackling is concerned.
In support of the allegation in the petition for the writ that petitioner was stripped, beaten
and slapped by the chief of police of the city of Reno, and thereby forced to make an untrue
admission to said chief of police that he engaged in an altercation with said Robert L. Flindt
for the purpose of robbing him, petitioner presented on the hearing in this proceeding,
affidavits of two police officers of the city of Reno, and an excerpt from the testimony of said
Chief of Police Fletcher given during a civil service appeal hearing regarding the dismissal of
certain police officers from the police force of said city of Reno, during the month of March
1946. One affiant avers that on November 25, 1944, when he was then a police officer, he
was at the police station in Reno when the police officers were booking petitioner at the
booking window and saw Chief Fletcher hitting petitioner with his fists in the ribs and saw
Detective Cowan hit him over the shoulders and across the kidneys with a sap, or a black
jack, and heard Fletcher say to petitioner, You guys from Chicago can't pull that stuff
herewhen you come to my office or the office of the detective you be prepared to talk or
you will get some more of this. The affiant avers that petitioner was standing without any
shirt on during the time they were beating him and the part of his body he could see was bare.
The affidavit of the other police officer who stated that he was present at that time at the
police station, is of similar import.
The substance of the testimony given by Chief of Police Fletcher during the civil service
appeal hearing, as appears from the excerpt offered by petitioner, is that on November 26,
1944, in the Reno police station he may have made the statement to petitioner: You guys
from Chicago can't pull that stuff here, and when you come to my office, or the detective
office, you want to come prepared to talk, or you will wish you had."
guys from Chicago can't pull that stuff here, and when you come to my office, or the detective
office, you want to come prepared to talk, or you will wish you had. And further: I slapped
him (petitioner) with my open hand. He would not talk. I don't believe I hit him too hard, just
to try to jar him up; he was drinking quite a bit. Further testimony appears in the excerpt in
regard to the statement and the slapping, but it is unnecessary to detail it.
2. The respondent objected to the admission of the affidavit and the excerpts of the
testimony of Chief of Police Fletcher, and they were admitted subject to the objection. We
now sustain the objection and exclude from consideration the affidavits and the excerpt of
testimony. On this account we also exclude from consideration the six counter affidavits
offered provisionally by respondent denying that petitioner was subjected to any duress to
induce him to make his confession.
3, 4. It has long been well settled that habeas corpus cannot be used to authorize the
exercise of appellate jurisdiction. Ex parte Winston, 9 Nev. 71; Ex parte Maxwell, 11 Nev.
428; Ex parte Gafford, 25 Nev. 101, 57 P. 484, 83 Am. St. Rep. 568; Ex parte Davis, 33 Nev.
309, 110 P. 1131; In re McCabe, 53 Nev. 463, 5 P. 2d 538; Ex parte Ohl, 59 Nev. 309, 319,
92 P.2d 976, 95 P. 2d 994; Bowen v. Johnston, 306 U.S. 1930, 59 S.Ct. 442, 83 L. Ed. 455;
39 C.J.S. Habeas Corpus, sec. 15, p. 444. In a habeas corpus proceeding the court has no
power to review a case on its merits. Such would be the effect here if we permitted the use of
the affidavits and excerpt of testimony for the purpose of showing that the confession testified
to by the Chief of Police was involuntary. Errors and irregularities not involving questions of
jurisdiction are beyond the legitimate scope of inquiry by habeas corpus. Ex parte Winston,
supra; Ex parte Bergman, 18 Nev. 331, 4 P. 209; Ex parte Dela, 25 Nev. 346, 60 P. 217, 83
Am. St. Rep. 603; Ex parte Ohl, supra; 39 C.J.S. Habeas Corpus, supra.
Rulings of the trial court with respect to the admission or exclusion of evidence fall within
the above category. Ex parte Dixon, 43 Nev. 196, 183 P. 642; Ex parte Speer, 53 Idaho 293,
23 P.2d 239, 88 A.L.R. 1086; 39 C.J.S. Habeas Corpus, sec. 21, p. 470, n. 4; 25 Am. Jur. 183
sec. 53. Such errors are properly reviewable on appeal. The Eureka County Bank cases, 35
Nev. 80, 126 P. 655, 129 P. 308, relied on by petitioner, have no application. In those cases
there had been no trial and conviction, as here.
5. While there was no error in the admission of the confession, yet if it had been shown at
the trial that Chief of Police Fletcher by duress had induced it, the error of admitting it in
evidence could not be reviewed and corrected on habeas corpus under the principles above
stated. The time to inquire into the admissibility of the confession and to have made a
showing against its voluntariness, was when it was offered during the progress of the trial,
and if any error was committed in its admission in evidence, it could have been assigned as
such and corrected on appeal. It is obvious that if any stripping, beating and slapping had
been administered to petitioner to exhort the confession, such duress was known to him and
should have been made known to his attorney to enable him to take the appropriate steps to
protect his rights at the trial and on appeal. His contention that he did not realize the legal
significance of the confession cannot avail to retry the admissibility of the confession in this
proceeding.
As was said in Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E. 2d 873, 876, 146 A.L.R. 365:
What is here said is equally applicable to a complaint that a confession was not
admissible in evidence, because it was in fact obtained by duress. If this be true and had been
shown, the confession would have been inadmissible, * * *; but the applicant is not now at
liberty to prove, by way of a petition for habeas corpus, that it was involuntary. The judgment
of conviction forecloses that question, except in proceedings provided for the review and
correction of errors."
that question, except in proceedings provided for the review and correction of errors.
In Burall v. Johnston, Warden, D.C., 62 F. Supp. 825, the court held:
That evidence was allegedly obtained by coercion at preliminary hearing before
commissioner was not a ground for issuance of habeas corpus, where circumstances of
alleged confession could have been inquired into during progress of trial which followed and
error committed, if any, could have been corrected on appeal.
The court, supra, quoted from Burall v. Johnson, 9 Cir., 134 F. 2d 614, as follows:
The time to inquire into the circumstances of the confession was during the progress of
the trial, and error committed, if any, was subject to correction on appeal.
6. In fact, the matter contained in the affidavits and the excerpts of testimony is in the
nature of newly discovered evidence which is available only on a motion for a new trial, or in
an appeal to the clemency of the pardoning power.
In United States v. Hill, D.C., 31 F. Supp. 27, it was held that after discovered evidence
tending to show that another had confessed to perpetrating the offense for which the accused
was convicted, might be made the basis of a plea for executive clemency, but afforded no
ground for relief in habeas corpus. The court said:
The question presented here is one bearing solely on the merits of the case, and raising no
error which appears on the face of the record. In a habeas corpus proceeding the court has no
jurisdiction to review the case on its merits, but is limited solely to an investigation whether
all prior steps have been legal and have protected petitioner's constitutional rights, and
whether the record so indicates.
For the reasons given the affidavits of the police officers and the excerpt of testimony of
Chief of Police Fletcher were immaterial, irrelevant, and incompetent.
7. What we have said with reference to the shackling of petitioner at the trial likewise
disposes of the allegation of the petition that petitioner was denied his rights as provided in
section 10656, N.C.L. 1929.
The proceeding is dismissed and the petitioner is remanded to the custody of the warden of
the state prison.
[Reporter's NoteA writ of certiorari was denied to petitioner by the United States
supreme court on October 10, 1946.]
____________
63 Nev. 270, 270 (1946) State v. Sala
STATE OF NEVADA, Respondent, v. ALBERT
EVERETT SALA, Appellant.
No. 3450
May 31, 1946. 169 P.(2d) 524.
1. Criminal Law.
A person of sound mind and discretion may be presumed to intend all the natural, probable, and usual
consequences of his act.
2. Homicide.
Where one person assaults another violently with a deadly weapon in a manner reasonably calculated
to produce death, and life of assaulted person is actually destroyed as consequence of such assault, jury
may presume that death was intended, unless from a consideration of all the evidence jury entertains a
reasonable doubt whether such intention existed.
3. Homicide.
Homicide committed in the perpetration or attempt to perpetrate robbery or other enumerated
felonies, constitutes first-degree murder without proof that killing was willful, deliberate, or
premeditated. Comp. Laws, sec. 10068.
4. Robbery.
In statute defining robbery, provision that, if used merely as a means of escape, it does not constitute
robbery, refers to use of force or fear and not use of the personal property. Comp. Laws, sec. 10109.
5. Robbery.
Under express provisions of statute and contrary to general rule, use of force or fear to prevent or
overcome resistance to the retention of personal property taken constitutes robbery. Comp. Laws, sec.
10109.
6. Robbery.
To constitute robbery, the taking, as in case of larceny, must have been with the specific intention to
deprive owner of his property permanently. Comp. Laws, sec. 10109.
63 Nev. 270, 271 (1946) State v. Sala
7. Robbery.
Subsequent use of automobile established that it was taken with intent to deprive owner of his
property permanently so as to constitute robbery. Comp. Laws, sec. 10109.
8. Homicide.
Where at least the second of two beatings inflicted on automobile owner by defendant allegedly in
heat of passion was shown to have been administered to prevent or overcome resistance to taking of
automobile, to establish first-degree murder it was necessary to prove only that injuries inflicted by
second beating were of such a nature that, in their natural and probable consequences, they would
produce death, or at least substantially contribute to and accelerate death. Comp. Laws, secs. 10068,
10109.
9. Homicide.
One who inflicts an injury on another and thereby accelerates his death is criminally responsible
therefor.
10. Homicide.
Evidence established that beating with monkey wrench, inflicted to prevent or overcome resistance to
taking of automobile, though immediately preceded by beating with hammer and fists allegedly in heat of
passion, accelerated victim's death so as to constitute the killing resulting from the two beatings
first-degree murder. Comp. Laws, secs. 10068, 10109.
11. Homicide.
Defendant's statement and evidence as to surrounding facts showed a malicious and intentional killing
in the perpetration of a robbery so as to justify determination that the homicide constituted first-degree
murder, as against defendant's contention that he assaulted victim in heat of passion. Comp. Laws, secs.
10066, 10068, 10109, 11042.
12. Homicide.
Evidence established that robbery was the motive for beatings resulting in victim's death so as to
constitute the killing first-degree murder, as against defendant's uncorroborated assertion that homicide
was committed in heat of passion induced by improper sexual advances. Comp. Laws, secs. 10068,
10109.
13. Homicide.
That defendant did not take victim's wrist watch or coin purse containing a few dollars did not, in the
light of other evidence, negative theory that robbery was the motive for beatings resulting in death of
victim whose automobile and money contained in a billfold were stolen. Comp. Laws, secs. 10068,
10109.
14. Homicide.
The circumstances and severity of beatings, administered with a hammer and monkey wrench,
respectively, and their repetition to the extent that three basal fractures of the skull resulted, reasonably
established malice, both express and implied, necessary to show first-degree murder.
63 Nev. 270, 272 (1946) State v. Sala
implied, necessary to show first-degree murder. Comp. Laws, sec. 10067.
15. Criminal Law.
Trial court did not abuse its discretion in determining that defendant, who pleaded guilty to charge of
murder, was guilty of first-degree murder in so severely and repeatedly beating victim with hammer and
monkey wrench in the perpetration of robbery and unsuccessful attempt to find additional money which
defendant knew victim was carrying as to cause victim's death. Comp. Laws, secs. 10066, 10068, 10109,
11042.
16. Criminal Law.
Discretion to prescribe the punishment was vested in trial court upon determining upon a plea of
guilty of crime of murder that defendant was guilty of murder in the first degree. Comp. Laws, sec.
10068.
17. Homicide.
Trial court, having determined that defendant who pleaded guilty to charge of murder was guilty of
murder in the first degree, did not abuse its discretion in pronouncing death sentence. Comp. Laws, sec.
10068.
Appeal from Fourth Judicial District Court, Elko County; Milton B. Badt, Judge.
Albert Everett Sala pleaded guilty to an information charging him with murder and from
an order of determination of the district court determining that he was guilty of murder in the
first degree, and from the judgment and sentence of death entered thereon, he appeals. Order
and judgment affirmed.
Taylor H. Wines and D.A. Castle, both of Elko, for Appellant.
General, of Carson City, and A.L. Puccinelli, District Attorney of Elko County, for
Respondent.
OPINION
On October 30, 1945, an information was filed in the Fourth judicial district court of the
State of Nevada, in and for the county of Elko, charging the appellant, Albert Everett Sala,
with the crime of murder in the first degree.
63 Nev. 270, 273 (1946) State v. Sala
Fourth judicial district court of the State of Nevada, in and for the county of Elko, charging
the appellant, Albert Everett Sala, with the crime of murder in the first degree. It was alleged
in said information that the said Sala, on the 7th day of September 1945, about 5.4 miles east
of Boone Springs, in the county of Elko, State of Nevada, did then and there willfully,
deliberately, and premeditatedly, with malice aforethought and with the intent then and there
to kill one Edward Alfred McCollum, strike said Edward Alfred McCollum upon the head
with a hammer or wrench, causing mortal wounds to said McCollum and thereby causing his
death, on September 11, 1945.
The appellant, on the 1st day of November 1945 was brought into court for arraignment
upon said charge, and, upon the request of the defendant that counsel be appointed for his
defense, the court appointed attorneys D.A. Castle, Esq., and Taylor H. Wines, Esq., to
represent appellant in all further proceedings in the case. The arraignment then proceeded,
and the defendant entered a plea of not guilty by reason of insanity. The court thereupon, with
the consent of respective counsel, set the case for trial commencing on the 6th day of
November 1945 at ten o'clock a.m.
On the 6th day of November 1945, upon the case being called for trial, the defendant, by
his attorneys, asked leave to withdraw his plea of not guilty by reason of insanity, and enter a
plea of guilty. The information was thereupon reread to the defendant, and he entered a plea
of guilty.
Said plea, being without specification as to the degree of the crime, was deemed and
considered by the court as a plea of guilty to the crime of murder in general, and the court
thereupon proceeded, pursuant to the provisions of sections 10068 and 11042, Nevada
Compiled Laws 1929, by examination of witnesses, to determine the degree of the crime.
Thereupon, on November 6 and 7, 1945, the testimony of witnesses was taken, and certain
documentary and other evidence adduced, which was duly admitted, and thereafter, on said
7th day of November 1945, after the arguments of counsel had been heard, the case was
duly submitted to the court, without a jury, for the purpose of determining the degree of
the crime. The court, thereupon, rendered its decision determining the degree of the
crime to be murder of the first degree, and, upon the consent of the defendant and his
attorneys, set the 10th day of November 1945, at the hour of 9:30 o'clock a.m., as the
time for pronouncing judgment and sentence upon the defendant.
63 Nev. 270, 274 (1946) State v. Sala
duly admitted, and thereafter, on said 7th day of November 1945, after the arguments of
counsel had been heard, the case was duly submitted to the court, without a jury, for the
purpose of determining the degree of the crime. The court, thereupon, rendered its decision
determining the degree of the crime to be murder of the first degree, and, upon the consent of
the defendant and his attorneys, set the 10th day of November 1945, at the hour of 9:30
o'clock a.m., as the time for pronouncing judgment and sentence upon the defendant. At the
appointed time, the defendant and his said attorneys and the district attorney being in court,
the court, no legal cause or excuse having been shown, or offered, by the defendant, after he
was accorded the right so to do, why judgment should not be pronounced, proceeded to, and
did, pronounce judgment upon the defendant for the crime of murder in the first degree, of
which he had been duly convicted, upon his plea of guilty and upon the determination of the
court, in such proceedings under sections 10068 and 11042, N.C.L. 1929, that said crime was
murder in the first degree, that he should suffer the death penalty, at the time, place and in the
manner in said judgment and sentence prescribed.
It is from such order of determination of the said district court, determining that the
defendant (the appellant) is guilty of murder in the first degree, and from said judgment and
sentence of death, that the appellant has appealed to this court.
Appellant's exception No. 1 is stated as follows:
That the district judge abused his discretion in finding the defendant guilty of first degree
murder, in that the finding and the conviction is contrary to the evidence and the law, in that
the evidence will not support a conviction of first degree murder.
From the evidence, it appears that the deceased, Edward Alfred McCollum, left the home
of his niece, Mrs. Shirley Hammers, in San Fernando, California, about 9:30 or 10:00 o'clock
on the morning of September 4, 1945, driving a Plymouth two-door coach or sedan, and that
he intended to drive to Reno, Nevada, to consult certain court records, as to whether his
wife had obtained a divorce {as she had told him she had), and then to drive on to his
former home in South Dakota, which he had not visited since leaving there in 1902.
63 Nev. 270, 275 (1946) State v. Sala
sedan, and that he intended to drive to Reno, Nevada, to consult certain court records, as to
whether his wife had obtained a divorce (as she had told him she had), and then to drive on to
his former home in South Dakota, which he had not visited since leaving there in 1902. Mrs.
Hammers testified that Mr. McCollum was carrying with him a black zipper wallet, a bill fold
of the envelope type, a coin purse and a wrist watch, besides a bed roll, suit cases, a tool box
and a bag of miscellaneous articles, in the car. Mrs. Hammers knew Mr. McCollum had
considerable money in the bill fold; he showed her the money, just rifling through it with his
thumb, and she doesn't know how much he had.
There were no witnesses who testified with certainty as to seeing Mr. McCollum from the
time he left his niece's home, in San Fernando, California, on the morning of September 4,
1945, until the early morning of September 7, 1945, at which time Mr. McCollum and the
appellant, Sala, drove into the Miller Service Station, at Ely, Nevada. Earl Ray Miller
testified that Mr. McCollum purchased gasoline from him early that morning. He identified
Sala, positively, in the court room. He testified that he had seen McCollum at the White Pine
County hospital, at Ely, Nevada, after McCollum had been brought there, terribly injured, and
positively identified him as being the man who had purchased the gasoline at his service
station, the means of identification being that he had observed that a thumb and forefinger
were missing from McCollum's left hand. Among other things, Mr. Miller testified that Sala
was sitting alongside Mr. McCollum in the automobile, before their departure from the
service station, and that Mr. McCollum took out a black zipper wallet from his back pocket,
to pay for the gasoline; Mr. Miller further testified he saw five or six twenty-dollar bills in the
wallet, as McCollum fingered through the bills and obtained a five-dollar bill, which he
handed Mr. Miller, to pay for the gas. This visit to the service station, according to Miller,
was somewhere from 3:00 to 4:30 a.m. on the morning of September 7, 1945.
It was at about 6:35 a.m. that same morning that John William Pratt, employed by the
state highway department, accompanied by a Mr.
63 Nev. 270, 276 (1946) State v. Sala
was somewhere from 3:00 to 4:30 a.m. on the morning of September 7, 1945.
It was at about 6:35 a.m. that same morning that John William Pratt, employed by the state
highway department, accompanied by a Mr. Gardner and a Mr. Wreck, found Mr. McCollum
lying on the edge of the oiled portion of highway 50, about 5.4 miles east of Boone Springs,
Elko County, Nevada, in such condition as to show he had been terribly beaten. His face and
hair were matted with blood, his face was swollen so he could not see, and he could not
speak. While Mr. Pratt was there, and before he went back to Boone Springs to call the
sheriff's office, at Ely, Mr. McCollum had taken from his back pocket a black zipper wallet,
which, by means of a registration slip in it, an operator's license and a Pacific Union Life
Insurance identification card, was later identified by Mrs. Hammers as being the wallet she
had seen at San Fernando, and knew belonged to her uncle, Mr. McCollum.
Mr. Pratt testified that he took this wallet from Mr. McCollum, laid it alongside him, on a
blanket, and, later, took it from there, and kept it until the officers arrived; that he took no
money from it.
When Mr. McCollum was undressed and searched, after reaching the hospital, a bill fold
of the envelope type was found on his person, between his undershirt and outside shirt, down
next to, and held by, his belt, and the bill fold contained one thousand dollars in traveler's
checks and $300 or $310 in ten and twenty dollar bills, placed in between the traveler's
checks and folded with them.
Also, a coin purse was found on Mr. McCollum, and contained about six dollars. He also
had a wrist watch on his wrist when taken to the hospital.
As to the factual background of this case, from the time McCollum and Sala met and
commenced traveling together, which Sala says was on September 6, 1945, about fifty or
sixty miles from Fallon, Nevada, until the finding of Mr. McCollum, on the early morning of
September 7, 1945, except for the short time at the Miller Service Station, in Ely, and that
Sala was identified by a cook from the Lincoln Hotel, of Eureka, Nevada, as having drunk
coffee there about 9:00 or 10:00 p.m., September 6, and that an older, heavy set man was
with him in the bar, we are dependent entirely upon Sala's statement, State's exhibit No.
63 Nev. 270, 277 (1946) State v. Sala
finding of Mr. McCollum, on the early morning of September 7, 1945, except for the short
time at the Miller Service Station, in Ely, and that Sala was identified by a cook from the
Lincoln Hotel, of Eureka, Nevada, as having drunk coffee there about 9:00 or 10:00 p.m.,
September 6, and that an older, heavy set man was with him in the bar, we are dependent
entirely upon Sala's statement, State's exhibit No. 5, and such inferences as can reasonably be
drawn therefrom and from the surrounding circumstances.
Appellant's attorneys, basing their contention upon the theory that both the first beatings
and second beatings of McCollum, by Sala, were continuous, and were due entirely to
uncontrollable passion aroused in Sala by improper advances, of a sexually perverted nature,
by McCollum toward him, assert that there was an absence of any intention to kill McCollum;
that if death resulted from the beatings, the killing was not willful and premeditated, and, at
most, was murder of the second degree. They, therefore, contend that the determination of the
trial court that the appellant is guilty of murder in the first degree, and that the court's
judgment and sentence of death, are contrary to the evidence and the law.
We should state emphatically that it is unreasonable to believe that if such improper
advances occurred (and for reasons to be hereinafter set forth, we do not believe they did),
that the third or fourth of such advances would have affected appellant so differently from the
others. His statement, on pages 1 and 2 of State's exhibit 5, in regard to such alleged
advances, is to the effect that McCollum, after they had been riding about an hour, started to
get familiar with him, that he did this two or three times before they arrived at Ely; however,
that at each small town, as they came to them, they tried to get a room; that they also had a
drink or two in each town. So it is apparent the first two or three advances (if they occurred)
did not frighten appellant or interfere with their friendliness. The appellant does not claim he
was afraid or that he objected to taking a room with McCollum, if they could obtain one,
and they exhibited friendliness by taking drinks together.
63 Nev. 270, 278 (1946) State v. Sala
does not claim he was afraid or that he objected to taking a room with McCollum, if they
could obtain one, and they exhibited friendliness by taking drinks together. Appellant relates
in his statement, that after they left Ely he caught McCollum staring at him from time to time,
and McCollum also got familiar with him, by occasionally rubbing his hand (we now quote
from page 2 of Sala's said statement), not on my privates, but over my leg. However, I went
to sleep, and when I awakened the car was stopped. McCollum was standing on my side of
the car and was rubbing my chest and legs. I told him to get away from me (this is the first
indication of resentment), and he told me to take it easy, that no one was going to hurt me. I
told him to get away again and he didn't do it so I started to get out of the car. My hand fell on
a ball pean hammer which was in the glove compartment. The glove compartment was
standing open at the time. When McCollum didn't leave me alone, I hit him across the face
with the head of the hammer. (The first indication of anger). He put his hands to his head
and started moaning and ran around to the other side of the car. I followed him around there
and hit him several times with my fists. I then hit him several times with the hammer and he
fell down. I was going to hit him again but as I brought the hammer back for another blow I
discovered the head had broken off. (Now, according to his story, his reasoning faculties
have returned and are operating againthe anger is waning). Then I kicked him once (the
last display of anger) and dragged him over to the side of the road. I believe I threw the
handle away at that time. (All the foregoing parenthetical expressions are ours.)
I started to get into the car believing that I would drive it to Salt Lake City. However, I
noticed that he got up and started coming toward me. The lights of the car were not on but it
was light enough so that I could see him. I believe this episode occurred about 4:00 a.m. on
the morning of September 7. When I saw McCollum coming after me, I reached into the
gove compartment again and the first thing I found was a monkey wrench.
63 Nev. 270, 279 (1946) State v. Sala
saw McCollum coming after me, I reached into the gove compartment again and the first
thing I found was a monkey wrench. I picked this up and hit him in the face several times
more with it. He fell down that time and stayed down. I recall that I hit him a number of times
with the wrench but I don't recall how many. I wondered at the time where he got the
resistance to take the beating that he was taking without falling down. After McCollum fell
down the second time, I got into the car and drove toward Wendover, Utah.
It is clear that the first series of beatings, i.e., those with the hammer and then with
appellant's fists and then several times with the hammer again, until the handle was broken,
were very severe. According to Dr. Rapp's testimony, the autopsy disclosed at least three
basal fractures of the skull, one of which extended from the frontal region over the right eye
brow, and extended into the nasal sinus, and then proceeded posteriorly to the base of the
skull. Most likely, the blow across the face with the hammer, as appellant describes it, or
the blow when the hammer handle was broken, caused this fracture.
It would be absurd to argue, and appellant doesn't claim in his statement, that when he
started to get in the car, believing he would drive it to Salt Lake City, and noticed that
McCollum got up and started coming toward him, he expected McCollum to make any
further advances, such as he claimed he had made before. A man severely and probably
mortally wounded, was certainly not in a condition to assume any such attitude toward a
person who had so wounded him. Sala doesn't claim, either, that McCollum was approaching
him in any threatening attitude, or that he was doing other than a man badly beaten and
wounded almost to the point of death, and probably whose only hope of succor was by use of
his automobile, would do. A man so wounded would naturally try to reach his car, with the
hope of driving to where he could, perhaps, phone for medical aid; and if he saw some one
about to steal the car, it was natural for him, and he had the right, to try to prevent such
theft.
63 Nev. 270, 280 (1946) State v. Sala
medical aid; and if he saw some one about to steal the car, it was natural for him, and he had
the right, to try to prevent such theft.
All Sala said in that respect was that he started coming toward me, and, in another
connection, when I saw McCollum coming after me * * *. It will be noted that it was then
(that is to say, according to appellant, When I saw McCollum coming after me, I reached
into the gove compartment again and the first thing I found was a monkey wrench), that the
second series of beatings commenced. Appellant was not then in the throes of angry,
irresistible passion, if he ever had been. Indeed, for some time prior to, and during the time of
administering the blows with the wrench, he appears to have been in full possession of his
reasoning faculties, and to have been thinking, planning and acting with cool intent and
deliberation. He quit the beatings with the hammer when he discovered the handle had
broken, for the reason he could not use it effectively. He saw McCollum was helpless on the
road, and evidently to prevent any passing motorist discovering him there, he dragged him,
not only to the side of the road, as he says, but, most likely, considerably farther. The
measurements of Tom Williams, assisted by Bryan Robison and Norman Brown, show that
there was, definitely, a drag mark from where the ball peen hammer head, with a part of the
handle in it, was found on the shoulder of the highway, extending a distance of 15 feet 11
inches, to where a dental plate (evidently belonging to McCollum) was found, showing he
had been dragged at least that distance. The point to which he was thus dragged was in the bar
pit of the highway, about 18 inches below the level thereof, according to the testimony of
Tom Williams. Sala evidently was not under the influence of anger or irresistible passion
when he was reasoning so intelligently to accomplish his purpose of rendering less likely the
discovery of McCollum before he had time to steal the car and flee. After thus dragging
McCollum to the point in the bar pit, Sala, who, during all this time, if he had been angry
before, had further opportunity for his passion to cool, started to get in the car, believing
he would drive to Salt Lake City.
63 Nev. 270, 281 (1946) State v. Sala
to the point in the bar pit, Sala, who, during all this time, if he had been angry before, had
further opportunity for his passion to cool, started to get in the car, believing he would drive
to Salt Lake City. He was still reasoning and deliberating. The car in which he came to Reno
had broken down east of Fallon. He needed a car anyway, and he undoubtedly wished to flee
before his crime was discovered. He even thought, or premeditated beforehand, as to where
he would go, and formed the belief that he would go to Salt Lake City. He then noticed
McCollum had gotten up and was coming toward him. He noted, and remembered, it was
light enough to see him, although the lights of the car were not on. He said, in his statement,
he believed it was about 4:00 a.m., so he must have mentally noted the time. He had
determined to take the car. The owner was coming toward him. He did what many robbers do
when the owner appears on the scene, that is, he resented interference, or possible resistance.
He reasoned as to where he would find a weapon, probably in the glove compartment, found
a monkey wrench, which he knew was a dangerous and deadly weapon, picked it up, and hit
McCollum several times with it, in the face. He stated that McCollum fell down and stayed
down. His next sentence, in his statement, shows that, coldly and deliberately, he was
pondering every movement. At that point he stated, in the third paragraph on page 2 of his
statement (State's exhibit 5): I wondered at the time where he got the resistance to take the
beating that he was taking without falling down. * * *. In other words, knowing that he had
wounded McCollum very seriously before, by the first series of beatings with the ball peen
hammer, he wondered how he could stand so many more blows. Evidently, when he was
about to strike each successive blow, he pondered upon McCollum's condition, with the
definite objective of beating him with a deadly weapon, the monkey wrench, until all possible
resistance was overcome. He was waiting for him to fall down again, at least unconscious,
and, as he had reason to believe, mortally wounded.
63 Nev. 270, 282 (1946) State v. Sala
was waiting for him to fall down again, at least unconscious, and, as he had reason to believe,
mortally wounded.
1, 2. There is no evidence whatever, not even Sala's statement, which indicates that the
second series of beatings was because of any improper advances then made, or that, if any
such advances had occurred, there remained any remnant of passion or anger resulting from
them. On the contrary, the evidence shows that Sala, at least from the time he discovered the
hammer handle was broken, and kicked McCollum once, and then started to drag him to the
side of the road, was in full possession of his mental faculties, was reasoning intelligently and
cooly, and that his every act was intentional or willful, and not under the influence of any
passion or anger. It is a sound principle of law, which has been heretofore approved by this
court (as stated on page 11 of respondent's brief), that: A person of sound mind and
discretion may be presumed to intend all the natural, probable and usual consequences of his
act; and when one person assaults another violently, with a deadly weapon, in a manner
reasonably calculated to produce death, and the life of the party assaulted is actually
destroyed in consequence of such assault, a jury is entitled to presume that death was
intended, unless from a consideration of all the evidence, [they] entertain a reasonable doubt
whether such intention did exist. State v. Hall, 54 Nev. 213, 13 P. 2d 624, 632; State v.
Muldoon, 51 Nev. 322, 274 P. 922.
In the instant case, there is not only the presumption that death was intended, because of
the assault with a deadly weapon in a manner reasonably calculated to produce death, but,
also, the knowledge on the part of Sala, at the time of the second series of blows with a
wrench, of his previous assault upon McCollum with the ball peen hammer, from which
McCollum had only a few minutes before been unconscious, rendering more probable the
fatal effect of the second beatings.
63 Nev. 270, 283 (1946) State v. Sala
The crime of murder is defined in section 10066, Nevada Compiled Laws 1929, as
follows:
Murder is the unlawful killing of a human being, with malice aforethought, either express
or implied. The unlawful killing may be effected by any of the various means by which death
may be occasioned.
Malice is defined in section 10067, Nevada Compiled Laws 1929, as follows:
Express malice is that deliberate intention unlawfully to take away the life of a fellow
creature, which is manifested by external circumstances capable of proof. Malice shall be
implied when no considerable provocation appears, or when all the circumstances of the
killing show an abandoned and malignant heart.
Section 10068, Nevada Compiled Laws 1929, deals with the degrees of murder, how the
degree shall be determined, the procedure in the event of confession in open court or a plea of
guilty, and the method of determining the punishment. Said section is as follows:
Malice shall be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart. All murder which shall
be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful,
deliberate and premeditated killing, or which shall be committed in the perpetration, or
attempt to perpetrate, any arson, rape, robbery, or burglary, or which shall be committed by a
convict in the state prison serving a sentence of life imprisonment, shall be deemed murder of
the first degree; and all other kinds of murder shall be deemed murder of the second degree;
and the jury before whom any person indicted for murder shall be tried, shall, if they find
such person guilty thereof, designate by their verdict whether it be murder of the first or
second degree; but, if such person shall be convicted on confession in open court, the court
shall proceed, by examination of witnesses, to determine the degree of the crime, and give
sentence accordingly.
63 Nev. 270, 284 (1946) State v. Sala
Every person convicted of murder in the first degree shall suffer death or confinement in the
state prison for life, at the discretion of the jury trying the same; or upon a plea of guilty the
court shall determine the same; and every person convicted of murder of the second degree
shall suffer imprisonment in the state prison for a term of not less than ten years, and which
may be extended to life.
3. While Sala's attorneys contend that his acts were continuous and in the heat of an
irresistible passion, he has not so stated in his statement. He has not stated that there was any
attack upon him by McCollum, nor any offer of further advances, upon the occasion of the
second beatings, nor prior thereto and after McCollum had recovered consciousness and was
coming toward the automobile. Neither has he claimed that he, Sala, was sore at
McCollum, or hated, or disliked him, on account of any previous trouble; nor has he claimed
that because of any recurrence of anger, when he saw McCollum coming toward him, he
attacked him with the wrench. If it was because of hatred, dislike, or revenge because of any
prior advances, the crime is murder in the first degree, if willful, deliberate and premeditated,
as Sala's crime clearly was. But there is no evidence which would justify any reasonable
hypothesis other than that the last series of beatings, that is, those with the wrench, were for
the purpose and with the motive of robbing McCollum of his automobile. As shown by the
foregoing definition of the degrees of murder (sec. 10068, N.C.L.), when a killing is done in
the perpetration or attempt to perpetrate robbery, or any other of the enumerated felonies, it is
not essential for the state to prove that it was willful, deliberate, and premeditated, and for
that reason we will not dwell further at this time upon those elements in the definition of first
degree murder. But the appellant, in his opening brief, on page 4, has stated:
4. It is true that the defendant left the scene in the deceased's car, but in view of the
provisions of section 10109, Nevada Compiled Laws 1929, which provides "* * * if
{referring to personal property) used merely as a means of escape it does not constitute
robbery * * *' and it is submitted that robbery of the car has not been shown.
63 Nev. 270, 285 (1946) State v. Sala
deceased's car, but in view of the provisions of section 10109, Nevada Compiled Laws 1929,
which provides * * * if (referring to personal property) used merely as a means of escape it
does not constitute robbery * * *' and it is submitted that robbery of the car has not been
shown. The car was used for escape following the beating of the deceased.
Section 10109 N.C.L., is as follows:
Robbery is the unlawful taking of personal property from the person of another, or in his
presence, against his will, by means of force or violence or fear of injury, immediate or
future, to his person or property, or the person or property of a member of his family, or of
anyone in his company at the time of the robbery. Such force or fear must be used to obtain or
retain possession of the property, or to prevent or overcome resistance to the taking; in either
of which cases the degree of force is immaterial. If used merely as a means of escape, it does
not constitute robbery. Such taking constitutes robbery whenever it appears that, although the
taking was fully completed without the knowledge of the person from whom taken, such
knowledge was prevented by the use of force or fear. Every person who shall commit robbery
shall be punished by imprisonment in the state penitentiary for not less than five years;
providing such robbery is committed upon any train traveling upon any railroad within this
state the jury may, in its discretion, impose the penalty of death or the court in the event of a
plea of guilty, may impose such death penalty.
4. A careful reading of the foregoing definition of robbery readily discloses that while, in
a certain sense, the sentence, If used merely as a means of escape, it does not constitute
robbery. * * * refers to personal property, the words personal property are not implied or
understood following the word if and before the word used. The subject of the sentence,
as in the case of the sentence immediately preceding, is the words force or fear. It is
apparent both these sentences are dealing with the element of force or fear, and its
application, as an ingredient of the crime of robbery. "Such force or fear {to constitute
robbery) must be used to obtain or retain possession of the property, or to prevent or
overcome resistance to the taking; * * *.
63 Nev. 270, 286 (1946) State v. Sala
dealing with the element of force or fear, and its application, as an ingredient of the crime of
robbery. Such force or fear (to constitute robbery) must be used to obtain or retain
possession of the property, or to prevent or overcome resistance to the taking; * * *. If (such
force or fear be) used merely as a means of escape, it does not constitute robbery. Thus it
will be seen that it is not the words personal property which are understood or implied in
the sentence last above mentioned, but the words such force or fear be. This principle
embodied in the foregoing definition, making a clear distinction between force or fear used in
obtaining or retaining the possession of the property, or to prevent or overcome resistance to
the taking, and force or fear used merely as a means of escape, is generally recognized and
embodied in the definitions of the crime of robbery, in the several states.
In 46 Am. Jur. sec. 19, p. 148, it is stated: Sec. 19. Time of Exercise of Force or
Intimidation. The violence or intimidation must precede or be concomitant or
contemporaneous with the taking. Hence, although the cases are not without conflict, the
general rule does not permit a charge of robbery to be sustained merely by showing a
retention of property, or an attempt to escape, by force or putting in fear. The above doctrine
has further frequent application where force or intimidation has been exercised after the
property came into the defendant's hands through stealth, snatching or on delivery in
expectation of immediate cash payment or for a special purpose. Discrepancies in the
decisions of some states arise because of the uncertainty as to when the taking is completed. *
* *
5. While the use of force merely in the retention of property previously taken without
force, does not, under the rule prevailing in probably a majority of the states, constitute
robbery, our statute, section 10109, Nevada Compiled Laws 1929, by its express language,
does provide that the use of force or fear to prevent or overcome resistance to the retention
does constitute robbery.
63 Nev. 270, 287 (1946) State v. Sala
In 58 A.L.R., pp. 656 to 665, there occurs an extensive annotation dealing with the
distinction between use of force or fear in committing robbery and the use of force or fear as a
means of escape, citing many cases, and discussing some of them. The general rule is stated
on page 656, as follows:
Though the decisions are not without conflict, the general rule requires that, in the
offense of robbery, force or putting in fear be employed before, or at the time of, the taking of
property, and does not permit a charge of robbery to be sustained by showing a retention of
property, or an attempt to escape, by force or putting in fear.
In Montsdoca et al. v. State, 84 Fla. 82, 93 So. 157, 27 A.L.R. 1291, the court stated that it
was essential that the violence or intimidation precede, or be contemporaneous with, the
taking of the property. It appears in this case, that there was an assault on the victim and a
forcible taking possession of his automobile, before he paid money to the defendants. The
court held that the defendants were guilty of robbery.
Other leading cases on this subject, as cited in footnote 2, on page 148 of 46 Am.Jur., are:
Gordon v. State, 125 Ark. 111, 187 S.W. 913, Ann. Cas. 1918A, 419; Colbey v. State, 46 Fla.
112, 35 So. 189, 110 Am. St. Rep. 87; Jackson v. State, 114 Ga. 826, 40 S.E. 1001, 88 Am.
St. Rep. 60; State v. Lewis, 173 Iowa 643, 154 N.W. 432, Ann. Cas. 1918A, 403; Jones v.
Commonwealth, 115 Ky. 592, 74 S.W. 263, 103 Am. St. Rep. 340; State v. Holmes, 317 Mo.
9, 295 S.W. 71, 58 A.L.R. 652; State v. Parker, 262 Mo. 169, 170 S.W. 1121, L.R.A. 1915C,
121; State v. John, 50 N.C. 163, 5 Jones Law 163, 69 Am. Dec. 777; Monaghan v. State, 10
Okl. Crim. 89, 134 P. 77, 46 L.R.A., N.S., 1149.
In the instant case the appellant, in his statement (State's exhibit 5), stated, as above
quoted, in part as follows:
I started to get into the car * * *. However, I noticed that he got up and started coming
toward me.
63 Nev. 270, 288 (1946) State v. Sala
* * * When I saw McCollum coming after me, I reached into the gove compartment again and
the first thing I found was a monkey wrench. I picked this up and hit him in the face several
times with it. He fell down that time and stayed down. I recall that I hit him a number of
times with the wrench but I don't recall how many. I wondered at the time where he got the
down the second time, I got into the car and drove toward Wendover, Utah. (Italics ours).
It is apparent that the beating of McCollum with the wrench occurred to overcome or
prevent resistance to the taking of the car, not merely to accomplish flight. He stated he had
started to get in the car, but it is evident he had not yet entered, or taken possession, when he
saw McCollum coming toward him; that he changed his intention of immediately entering the
car, and instead reached into the glove compartment, obtained the monkey wrench, and
assaulted McCollum, and continued hitting him until he fell down and stayed down. Only
then, after the resistance of McCollum was overcome or prevented, did Sala take the
automobile. By entering the car and taking possession of it, after the force and violence were
thus used and completed, he thereby accomplished the taking or robbery. He then drove away.
McCollum, due to the beatings, had become unconscious and helpless, and no force was
needed or used by Sala to accomplish the flight. At that stage of the action there was no
resistance.
6, 7. To constitute robbery, the taking, as in larceny, must have been with the specific
intention to deprive the owner of his property (in the instant case, the automobile),
permanently. In other words, there must exist, as an element of the crime, the specific intent
to steal, or the animus furandi. 46 Am. Jur., sec. 10, P. 143. In the instant case, the existence
of such intent is manifested by the subsequent acts of the appellant, as narrated in his
statement {State's exhibit 5) and as admitted therein.
63 Nev. 270, 289 (1946) State v. Sala
in his statement (State's exhibit 5) and as admitted therein.
A full discussion of the intent in larceny occurs in 32 Am. Jur., sec. 36 et seq., p. 925.
The 5th paragraph on page 2 of the appellant's said statement, and its continuation on page
3 thereof, together with the second paragraph on said page 3, discloses that Sala,
notwithstanding his belief at the time of the assault that he would drive to Salt Lake City,
drove to Wendover, Utah, and stopped at the Shell gasoline station. While he was getting gas
for the car, a soldier came up and asked for a ride to Elko, Nevada. Sala said, in that
connection, in his statement:
I told him to come along and he went to sleep after we got started. I awakened him when
we got to Elko but he told me that he wanted to go on to Reno. At road houses along the way
the soldier, whose name I don't recall, and I stopped and had several drinks. At a warm
springs station between Lovelock and Reno, the soldier and I stopped and had several drinks.
I met a woman there who introduced herself as Ethel. She told me that her car had broken
down and that it was parked about 5 miles from the warm springs station. I told her that I
would drive her down there so that she could get her personal belongings out of the car. I
brought her and the soldier on into Sparks, Nevada with me because she said that she wanted
to go on to Sacramento, California.
It is clear that Sala did not merely convert the car to his own use, intending to return it to
McCollum, or leave it where McCollum would reasonably have an opportunity of reclaiming
it. Indeed, in view of the beatings he had administered to McCollum, he had no reason to
believe that McCollum would survive for any considerable length of time and be able to
reclaim the car, or to receive its return. Sala had no fixed intention as to where he was going,
when he drove the car away. The mere fact that a soldier came up to the gasoline station at
Wendover and asked for a ride to Elko, when Sala was getting gasoline, was sufficient to
cause Sala to decide to go west instead of east from Wendover, and to Elko instead of Salt
Lake City; and the fact that, when they arrived at Elko, the soldier wanted to go on to
Reno, was sufficient to cause Sala to continue west from Elko.
63 Nev. 270, 290 (1946) State v. Sala
station at Wendover and asked for a ride to Elko, when Sala was getting gasoline, was
sufficient to cause Sala to decide to go west instead of east from Wendover, and to Elko
instead of Salt Lake City; and the fact that, when they arrived at Elko, the soldier wanted to
go on to Reno, was sufficient to cause Sala to continue west from Elko. Then appellant met
the girl, Ethel, at Warm Springs Station, between Lovelock and Reno, while he and the
soldier stopped and had several drinks. After driving the girl back five miles, to where her car
was broken down, in order to get her personal belongings, he brought her and the soldier on
into Sparks, Nevada, because she said that she wanted to go on to Sacramento, California. If
he had not been apprehended and arrested in Sparks, Sala would probably have driven the girl
on to Sacramento. He was driving the car wherever circumstances, or his fancy, suggested,
and no consideration or thought of returning it to McCollum is indicated. It is clear, from the
second paragraph on page 3 of his said statement, that he intended to steal the car, and
considered it to be stolen. Said second paragraph is as follows:
At no time during the trip from Wendover, Utah to Sparks, Nevada did I tell either the
soldier or Ethel that the car I was driving was stolen.
Conceding the car to have been stolen, he assured the officers, in order to exculpate the
soldier and Ethel from any connection with the crime, that he had at no time told them that it
was stolen.
8. As to the element of the cause of death, it was sufficient if, from the evidence, it was
proven that the injuries inflicted by the second series of beatings were of such a nature that, in
their natural and probable consequence, they would produce death, or at least materially
contribute to and accelerate same.
9. As stated in 26 Am. Jur., sec. 49, p. 192:
The law declares that one who inflicts an injury on another and thereby accelerates his
death shall be held criminally responsible therefor.
63 Nev. 270, 291 (1946) State v. Sala
criminally responsible therefor. It is said in this connection that if any life at all is left in a
human body, even the least spark, the extinguishment of it is as much homicide as the killing
of the most vital being. State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133.
10. Dr. Rapp testified that there were at least three basal fractures of the skull, such as
would be caused by a blunt instrument. The appellant, in his statement, admitted he hit
McCollum many times in the face and head, with the monkey wrench, inflicting the second
series of beatings, and that he finally fell down and stayed down. McCollum was taken to
the hospital, continued to become worse, and died September 12, five days after the beatings.
Death was undoubtedly caused by the two series of beatings, but the second series, those with
the monkey wrench, contributed materially to cause, and they undoubtedly accelerated, the
death of McCollum. The injuries were of such nature, as in their natural and probable
consequence, would produce such result.
11. In connection with the last series of beatings of McCollum by Sala, all the elements of
a malicious and intentional killing of the deceased by the appellant, in the perpetration of
robbery, were proven, by means of his admissions and by the other evidence adduced as to
the surrounding facts and circumstances, sufficiently to justify the trial court in determining
that the appellant was guilty of murder in the first degree. That being true, it is unessential for
us to proceed further in order to justify such determination and the judgment and sentence of
the district court. We feel, however, that to fail to make a definite finding and determination
as to the first series of beatings, which appellant's counsel have so zealously insisted were
done in the heat of irresistible passion, aroused by the provocation of improper advances,
emanating from sexual perversion, would leave at least a cloud of suspicion upon the
character of the deceased, which is only supported by the uncorroborated assertion of the
appellant, and which is refuted by its inherent improbability, arising not only from the
inconsistency of appellant's story itself, but, also, from the strongly convincing indications
which stem from the surrounding facts and circumstances, admitted in part by the
appellant, and which are inconsistent with the probability of such improper advances
having occurred.
63 Nev. 270, 292 (1946) State v. Sala
uncorroborated assertion of the appellant, and which is refuted by its inherent improbability,
arising not only from the inconsistency of appellant's story itself, but, also, from the strongly
convincing indications which stem from the surrounding facts and circumstances, admitted in
part by the appellant, and which are inconsistent with the probability of such improper
advances having occurred.
As hereinbefore indicated, it is highly improbable that a third improper advance, of the
character described, would have aroused anger so extreme as to cause the brutal, vicious
assault and numerous severe blows with the hammer, notwithstanding the fact that, after the
first advances had occurred, McCollum and Sala had drinks together and tried to get a room
at the towns in which they stopped, and upon the occasion of the second advance, appellant
went to sleep.
In appellant's statement, the third alleged advance and appellant's acts immediately
following are described as follows:
However, I went to sleep (when the second advance was being made) and when I
awakened the car was stopped. McCollum was standing on my side of the car and was
rubbing my chest and legs. I told him to get away from me and he told me to take it easy, that
no one was going to hurt me. I told him to get away again and he didn't do it so I started to get
out of the car. My hand fell on a ball pean hammer which was in the glove compartment. The
glove compartment was standing open at the time. When McCollum didn't leave me alone, I
hit him across the face with the head of the hammer. He put his hands to his head and started
moaning and ran around to the other side of the car. I followed him around there and hit him
several times with my fists. I then hit him several times with the hammer and he fell down.
(Parenthesis ours.)
Assuming, for the moment, that the foregoing is literally true, all that appellant needed to
do, to put an end to this particular advance, was to get out of the car, which he did.
63 Nev. 270, 293 (1946) State v. Sala
end to this particular advance, was to get out of the car, which he did. He claims that
McCollum was standing on his (Sala's) side of the car, rubbing his chest and legs. Evidently,
according to Sala, McCollum was standing outside the car and was reaching in and indulging
in the familiarity mentioned. There is nothing to show that more was needed, to prevent any
repetition of such acts, than a firm statement from Sala that he would not tolerate any such
conduct. But he claims irresistible passion was aroused, causing him to grab the hammer and
hit McCollum in the face. Then McCollum ran around the car, moaning. If McCollum could
be deemed the aggressor, by reason of the alleged advances, he definitely retired from the
combat. Sala then became the aggressor, chased him around the car, hit him several times
with his fists, and several times more with the hammer. Why the need to use a deadly
weapon? He was thirty-seven years old, and McCollum was fifty-five years of age. Sala has
never claimed McCollum was armed. If he wished to punish McCollum, for the alleged
improper advances, why did he not use his fists alone. He had the great advantage of the
difference of age, and, doubtless, of strength and endurance. Why the murderous assault with
a deadly weapon, and the torture that must have accompanied the blows in the face and
forehead with such a weapon? Why would rubbing his chest and legs arouse such great
passion, when rubbing his leg just a little while before had no effect, and he went to sleep
while it was being done? It is all too extreme and unreasonable to be worthy of belief.
Assuming that Sala had been asleep and was suddenly awakened and McCollum was
making advances that were repulsive, the repetition of such conduct might have been
disturbing, and a quick-tempered person, it may be readily surmised, may have become angry
and struck McCollum, even have given him a beating with his fists. But why the impulse to
destroy him, the cruel, terrific blows with a deadly weapon, after the beating with his fists,
as well as before?
63 Nev. 270, 294 (1946) State v. Sala
terrific blows with a deadly weapon, after the beating with his fists, as well as before? It
doesn't make sense, in view of Sala's complacency and calm condition of mind upon the
occasion of the first and second advances. But if we follow the old adage, Actions speak
louder than words, and take into consideration his subsequent actions, namely, the second
series of beatings, in connection with the taking of the automobile, and the wanton cruelty
and murderous intent clearly manifested by the circumstances which he has related in his
statement, in connection with the second beatings, we thereby obtain a clear insight as to his
character and method of operation. According to his story, as above related, he started to get
in the car, believing he would drive to Salt Lake City, but just then he saw McCollum, whom
he had only a short time before beaten into unconsciousness and dragged to the side of the
road (as he stated, but, actually, into the bar pit), coming toward the car. He knew that
McCollum, having been beaten so severely and so recently with the hammer, in the face and
on the head, could offer little, if any, substantial resistance to the taking of the automobile,
and that McCollum was unarmed. He could easily have driven the car away, practically
without interference from McCollum. He did not see fit to do that. Indeed, if his story about
the alleged improper advances prior to the first beatings were true, he, nevertheless, had he
been possessed of any human compassion, would have regretted after the fit of temper had
passed, that he had beaten and wounded McCollum so severely, and would have used the
automobile to drive McCollum where he could obtain medical treatment, to try to save his
life, and perhaps avoid a charge of murder against himself. If, however, he did not possess
such compassion, or feared the consequences of his vicious assault and desired to avoid
arrest, but was honest and had no thought of robbery, he would have had no occasion to
indulge in the second series of beatings, but would have quietly left the scene and
endeavored to have "hitch-hiked" to some place remote from the scene of the crime.
63 Nev. 270, 295 (1946) State v. Sala
endeavored to have hitch-hiked to some place remote from the scene of the crime. But in
his statement he acknowledged, in connection with the second beatings, the true motiveto
rob McCollum of the automobile. As to the second series of beatings, there is no pretense of
improper advances, or any provocation, by McCollum, or even substantial resistance.
Notwithstanding the utter lack of provocation, or any reason, even in order to accomplish
robbery, for any further beatings, and in spite of the fact that, in McCollum's wounded
condition, further beating probably would result in his certain death, Sala, according to his
statement, reached into the glove compartment again, found a monkey wrench, picked it up,
and hit McCollum in the face several times with it.
Sala, at that point in his statement, said:
He fell down that time and stayed down. * * * I wondered at the time where he got the
down the second time, I got into the car and drove toward Wendover, Utah.
Sala's own description of those beatings, together with the known facts and circumstances,
reveal his real character as a robber-killer. Here is a man wounded and almost helpless, trying
to reach his automobile, probably his only hope of being able to go some place for medical
attention, and is cruelly stricken down after having been beaten time after time with the
wrench. While the primary motive was robbery, the wanton, cruel severity of the beatings of a
man in McCollum's condition, discloses craven cowardice, and the intent to kill McCollum to
prevent his reporting this and the previous crime, and, probably, the blood thirst and lust of
the killer.
In their conversation at Eureka, McCollum had told Sala (according to Sala's statement)
that he had a thousand dollars with him. Sala had, no doubt, pondered upon that information,
and, as they traveled along the road in the darkness, had made up his mind to rob McCollum
of his money and his automobile.
63 Nev. 270, 296 (1946) State v. Sala
road in the darkness, had made up his mind to rob McCollum of his money and his
automobile. He had seen the black zipper wallet and the twenty-dollar bills in it, when
McCollum paid for the gasoline at the Miller Service Station, in Ely, and, in view of
McCollum's disclosure, in the conversation at Eureka, as to having a thousand dollars with
him, Sala, when he attacked McCollum the first time, with the ball peen hammer, doubtless
believed McCollum had a great deal more money somewhere on his person than appeared to
be contained in the black zipper wallet. If is clearly apparent that, in view of the wanton
cruelty so clearly displayed in the later beatings with the wrench, a man of Sala's nature and
disposition required no provocation and no motive, other than that of robbery, to cause him to
strike with cruelty and viciousness. The pretense that the first beatings, with the hammer,
were caused by any improper advances emanating from sexual perversion, appears in its true
perspective, in view of the later actual disclosure by Sala of his real character, his motive, and
his method of operation. Any such pretense, in view of the subsequent clear disclosure
afforded by the circumstances accompanying the second beatings, must be discarded as so
fantastic and unreal as to be totally unworthy of belief.
We may state, with the certainty of firm conviction, that one so cruel and heartless as to
strike and beat a wounded, helpless man as ferociously as Sala acknowledges he did
McCollum with the monkey wrench, in order to steal the car, when such force was clearly
unnecessary to enable him to accomplish that objective, required no improper advances or
other provocation, nor any inducement or incentive other than the purpose of robbery, to
cause him a short time before to inflict with the hammer the first beatings. Indeed, there
appears far more reason, from the standpoint of robbery, why greater force should have been
used on the occasion of the first beatings, than upon the occasion of those which occurred
later.
63 Nev. 270, 297 (1946) State v. Sala
those which occurred later. In the matter of the first attack, upon a man fifty-five years of age
and in normal condition, Sala doubtless expected considerable physical resistance; also, he
had a greater objective, that is to rob him, not only of his automobile, but also of his money.
Doubtless, also, he wished to force him to disclose the whereabouts of the money. At the time
of the second attack and beatings, Sala had doubtless realized his purpose of obtaining the
money had proven futile. With only a wounded and almost helpless man to resist him, and
only the objective of taking the car, and when his actions at that time clearly reveal a calm,
calculating condition of mind, free from anger or passion, he struck with great force,
evidently intending the utter annihilation of his victim. This is a clear demonstration, as
before stated, of his character and modus operandi. The first and second beatings were
committed merely as parts of the execution of a plan or pattern, willfully, premeditatedly, and
deliberately formed in the mind of Sala, after learning that the deceased had the one thousand
dollars.
Other evidences of the plan and purpose of robbery being the actuating cause of the entire
transaction, from the first blow with the hammer to the time Sala drove away in McCollum's
automobile, were the rifling of the black zipper wallet, and the presence near the center of the
oiled portion of the highway and very near a pool of dried blood, at the scene of the crime,
and only a short distance from where McCollum was found, of a pair of pliers and a roll of
adhesive tape. At the Miller Service Station, at Ely, the wallet contained a number of
twenty-dollar bills. The witness Earl Ray Miller believed he saw five or six of such
twenty-dollar bills when McCollum had his wallet out, paying for the gas. About two or three
hours later, McCollum was found alone near the edge of the roadway, terribly beaten. Mr.
John William Pratt, a highway employee, was the first to arrive at the scene, except some
tourists whom Pratt had seen pass the Boone Springs Station a very short time before he
left there.
63 Nev. 270, 298 (1946) State v. Sala
the Boone Springs Station a very short time before he left there. As to that matter, the
testimony of Mr. Pratt was as follows:
I know they hadn't been there very long, because they had just left the station as I was
pulling out, ahead of me.
Q. How far ahead of you? A. I imagine about a half a mile ahead of me.
Q. And they had stopped and were moving around the scene when you arrived? A. Yes.
Mr. Pratt testified, also, it took him about five minutes to travel from Boone Springs the
five miles to the scene of the crime. He evidently traveled about sixty miles an hour. If the
tourists were traveling at an equal rate of speed, they would have been at the point where Mr.
Pratt found them, when he arrived, about one half a minute.
There is no evidence that anyone other than these tourists had been there before Mr. Pratt
arrived and after the beatings of McCollum, and the tourists were not there a sufficient length
of time to have had any opportunity to search McCollum and find the wallet. The half minute,
or so, they were there, most likely, was spent in trying to ascertain the condition of McCollum
and what had happened to him. Two men, Mr. Gardner and Mr. Wreck, were with Mr. Pratt,
and Mr. Pratt took the wallet from McCollum and kept it until the officers arrived, according
to his testimony. McCollum, in Pratt's presence, soon after Pratt's arrival, had taken the wallet
from his back trousers pocket. Pratt testified he (Pratt) took nothing from the wallet. When
the officers arrived, according to the testimony of Bryan Robison, deputy sheriff, they found
the wallet empty. McCollum was fumbling with it, in his hand. Pratt, after discovering
McCollum alongside the road and viewing the situation, took the wallet for safe-keeping,
before he went to report, by telephone, to the sheriff's office at Ely, as to the finding of
McCollum. As between Sala and Pratt, it is most probable that Sala, at some time during
or between the blows of the first beatings, took the money from the black zipper wallet.
63 Nev. 270, 299 (1946) State v. Sala
Sala and Pratt, it is most probable that Sala, at some time during or between the blows of the
first beatings, took the money from the black zipper wallet.
The testimony of Tom Williams, by which the defense sought to prove that Sala, during
his trip from the scene of the crime, and until his arrival that night at Sparks, Nevada, had
expended no unusual amounts of money, carries little weight, circumstantially, to disprove
the taking of the money from the wallet. Williams testified that he visited, in making his
investigation, only Eureka, Ely, Wendover, Carlin, Battle Mountain and Golconda. There
were numerous other towns, service stations, roadhouses and other places where Sala may
have stopped and expended money. In answer to defendant's attorney, Mr. Wines, who asked
for the answer, even though the witness said his information was hearsay, Mr. Williams said
that an officer from Reno had stated to him that Sala had expended at Springer's Hot Springs
twenty-five or thirty dollars. He had $9.35 when arrested, and probably about ten dollars was
required for food and gasoline and oil on the trip. The total expenditures, based on that
information, would be about forty-five or fifty dollars. Sala, in his statement, said that:
At road houses along the way the soldier, whose name I don't recall, and I stopped and
had several drinks. At a warm springs station between Lovelock and Reno, the soldier and I
stopped and had several drinks. I met a woman there who introduced herself as Ethel. She
told me that her car had broken down and that it was parked about 5 miles from the warm
springs station. I told her that I would drive her down there so that she could get her personal
belongings out of the car. I brought her and the soldier on into Sparks, Nevada with me
because she said that she wanted to go on to Sacramento, California.
No one kept any check at these various stopping places as to how much Sala expended. He
may readily, at the places where he stopped for drinks, have expended another twenty-five
dollars or thirty dollars, or more.
63 Nev. 270, 300 (1946) State v. Sala
places where he stopped for drinks, have expended another twenty-five dollars or thirty
dollars, or more. If there were four twenty-dollar bills in the wallet (and Mr. Miller in his
testimony, did not claim to know exactly how many there were), the expenditure of thirty
dollars in addition to the amounts mentioned above would have accounted for the eighty
dollars.
12. We believe it was sufficiently established that the taking of the money from the black
zipper wallet was by Sala, and was part of the robbery he perpetrated upon McCollum, and
that the blows comprising the first series of beatings were immediately preceding, or
concomitant or contemporaneous with, the rifling of this wallet.
The presence on the highway, near a large spot of blood, of the pliers and roll of adhesive
tape is an item of circumstantial evidence indicative of robbery.
13. The evidence is that Sala failed to find the bill fold of the envelope type which the
deceased had secreted between his undershirt and his outer shirt, down next to his belt, in
which were the traveler's checks and more than three hundred dollars in currency. This bill
fold, the money therein amounting to $300 or $310, and the traveler's checks, were found at
the hospital, by the doctors and nurses, when McCollum was undressed, shortly after he was
brought there by Dr. Rapp and the officers.
McCollum had told Sala he had one thousand dollars, as above stated. It is reasonable to
believe, therefore, that Sala's principal objective was to obtain that money and the
automobile. It is probable that the pliers and tape were found in the car by Sala, and that he
placed them on the highway at some time during the period of the first beatings. They were
directly alongside a large spot of blood, indicating a connection with the activities which took
place there. They would doubtless have been seen by passing motorists, if they had been there
for any considerable length of time, and, having some value and utility, would have been
picked up. It is very probable that Sala, at some time or times while the first beatings
were being administered, made a determined effort to find the larger amount of money,
that he was unable to do so, and that he employed all available means of duress and
coercion to compel McCollum to disclose its whereabouts.
63 Nev. 270, 301 (1946) State v. Sala
very probable that Sala, at some time or times while the first beatings were being
administered, made a determined effort to find the larger amount of money, that he was
unable to do so, and that he employed all available means of duress and coercion to compel
McCollum to disclose its whereabouts. That probably accounts, in part, for the fact that
repeated blows were struck (according to Sala's statement) with the hammer, after the first
beating with the hammer, then with the fists. At some stage of the beatings, Sala probably
obtained the pliers and tape and threatened to bind McCollum and tie him up and leave him
helpless on the desert, down in the bar pit, where he could not easily be observed, unless he
told him where the money was. The presence of the oil can and matches off in the bar pit,
about sixty-one feet away from the point to which McCollum evidently had been dragged
after the first beatings were completed, was more remote, and while their presence there has
some evidentiary relevancy, the weight of this item of evidence is slight. The fact that Sala
failed to find the principal receptacle containing money, in view of where it was secreted, is
not surprising, and in no sense, in view of the other evidence and the surrounding
circumstances, negatives the existence of the intent to rob, and the fact that the beatings were
inflicted in the perpetration of robbery. Indeed, the very severity of the first beatings,
continued until the handle of the ball peen hammer was broken, indicates that appellant was
trying to torture McCollum into disclosing the whereabouts of the money. Sala does not claim
McCollum was armed, and he could certainly have accomplished the taking of the money
from the black zipper wallet without continued beatings to the degree of such extreme
severity. Furthermore, the fact that Sala left the deceased's wrist watch on his wrist, and his
coin purse, in which there was about six dollars, in his pocket, does not, in the light of the
other evidence and the circumstances, negative the intention of robbery. It must be borne in
mind that Sala had much reason to be in a hurry.
63 Nev. 270, 302 (1946) State v. Sala
must be borne in mind that Sala had much reason to be in a hurry. The scene of the crime was
on, and immediately adjacent to, a much traveled highway, U.S. highway No. 50. By the time
Sala had spent some time beating McCollum, which was, no doubt, prolonged while he was
endeavoring to torture him into disclosing where the money was, Sala, no doubt, was
becoming jittery and anxious to flee. Naturally, when he had failed to find the larger part of
the money, his next thought was the automobile, the stealing of which was, no doubt, one of
his principal objectives from the inception of his plan. He had no time to tarry to bother with
the coin purse and the wrist watch.
From the standpoint of the robber-killer (and we believe we can conceive, in a measure,
his condition of mind, under the then existing circumstances), the extreme severity of the
second beatings, for which there seems, as above indicated, to have been no reason, because
of the apparent helplessness of McCollum, was probably, in part, the result of the jittery
condition of the nerves of Sala. He had, most likely, been delayed while trying to compel
McCollum to tell him where the money was, and when he started to enter the automobile,
believing he would drive to Salt Lake City, he had, as he believed, sufficiently disposed of
McCollum, by leaving him, unconscious, in the bar pit along the highway. Then he was
surprised to see that McCollum had regained consciousness and was coming toward him.
This meant further delay and annoyance. So, primarily to accomplish the robbery of the
automobile, but also partly, no doubt, in a spirit of hatred or resentment because McCollum
had withheld information as to the whereabouts of the money, and in part through fear of
detection unless he quickly silenced McCollum so he could not report the crime, and partly in
resentment that McCollum was on his feet and coming toward him, which meant further
delay, he struck McCollum violently, repeatedly, and rapidly, with the wrench. That he coldly
calculated the effect of each blow, is apparent from his statement, in which he said that he
wondered at the time where he got the resistance to take the beating that he was taking
without falling down.
63 Nev. 270, 303 (1946) State v. Sala
from his statement, in which he said that he wondered at the time where he got the resistance
to take the beating that he was taking without falling down.
14. The circumstances and the severity of both these series of beatings each with a deadly
weapon reasonably calculated to produce death, and their repetition to the extent that there
were three basal fractures of the skull, reasonably lead to the conclusion that there was
malice, both express and implied. Sala deliberately intended unlawfully to take away the life
of McCollum, and such intent is manifested by external circumstances capable of proof.
The robber-killer, of the type Sala has shown himself to be, will kill an individual
deliberately, and without provocation, when, as in the perpetration of robbery, he conceives it
to be to his interest to do so. Sometimes it is due to physical cowardice, to avoid possible
physical injury to himself, and sometimes due to moral cowardice, to avoid detection and the
just punishment which he realizes he deserves.
Such a robber-killer has developed an abandoned and malignant heart to such a degree that
he conceives all decent members of society as his potential enemies, to be robbed and to be
killed with impunity, if such killing, in his conception, becomes expedient. It is only a step
from the evil covetousness or greed of the robber to the blood lust of the killer, and often they
coexist in the same depraved mind.
15. After a careful consideration of all the evidence in the instant case, we are impelled to
the conclusion that the evidence and the law abundantly sustain the action of the district court
in its determination that the appellant is guilty of murder in the first degree, and that said
court did not abuse its discretion in so determining. The corpus delicti and all other essential
elements of the crime of first degree murder were proven, by competent evidence, beyond a
reasonable doubt. There is, therefore, no merit in appellant's exception No. 1.
16, 17. Upon the conviction of a person of murder in the first degree, upon a plea of
guilty to the crime of murder and the determination of the district court that the crime is
murder in the first degree, the discretion is vested in the trial court to prescribe the
punishment.
63 Nev. 270, 304 (1946) State v. Sala
the first degree, upon a plea of guilty to the crime of murder and the determination of the
district court that the crime is murder in the first degree, the discretion is vested in the trial
court to prescribe the punishment. In this case the district court has pronounced the judgment
and sentence of death as the punishment for the crime of which the defendant has been duly
convicted upon his plea of guilty and the determination of the trial court that the crime is
murder in the first degree. The district court, in pronouncing such judgment and sentence, did
not abuse that court's discretion.
No error appearing in the record, the order of determination of the district court
determining the crime of appellant to be murder in the first degree and the judgment appealed
from are affirmed, and the district court is directed to fix the time of and to make the proper
order for the carrying into effect, by the warden of the state prison, the judgment rendered.
____________
63 Nev. 304, 304 (1946) Garaventa v. Gardella
JOSEPH A. GARAVENTA, Appellant, v. ELEANOR GARDELLA, as Administratix
of the Estates of Katherine Garaventa, Deceased, and John Garaventa,
Deceased, Respondent.
Nos. 3438, 3439
June 3, 1946. 169 P.2d 540.
Generally, the findings of fact of a trial court, where there is substantial, although conflicting,
evidence to support them, will not be set aside by in appellate court because of superior position of trial
court to observe and hear witnesses and because of essential distinction between respective provinces of
courts of original and of appellate jurisdiction. Const. art.6, sec. 4.
Even where evidence is all in writing so that supreme court is in just as good a position to weigh
evidence and draw its own conclusions therefrom as was trial court, where supreme court has case before
it in exercise of its appellate jurisdiction, trial court's findings will not be set aside unless clearly or
manifestly against weight of evidence or without any reasonable support therein.
manifestly against weight of evidence or without any reasonable support therein. Const. art. 6, sec. 4.
Supreme court, as a reviewing court, has no jurisdiction to weigh evidence without regard to findings
of trial court, but can only consider evidence for purpose of determining whether there was any
substantial evidence to support such findings and whether conclusions reached by trial court were clearly
wrong. Const. art. 6, sec. 4.
Substantial evidence supported trial court's findings for administratrix in suit to recover, for the
estates of deceased father and mother, certain shares of corporate stock in possession of a surviving son,
who allegedly held stock in trust for other children and who later repudiated the trust.
5. Executors and Administrators.
The absence of creditors whose rights must be protected does not preclude administratrix from
recovering, for estate of her decedent, corporate stock owned by decedent and taken by one of decedent's
children after decedent's death.
Regardless of whether there are debts against an estate, court has jurisdiction to grant administration.
7. Limitation of Actions.
Where trial court found that defendant held corporate stock in trust for the benefit of his brothers and
sisters and that trust was wrongfully repudiated by defendant within limitation period, as against
defendant's contention that no trust was created, action by administratrix of deceased owner of stock
against defendant to recover stock for benefit of brothers and sisters as heirs of deceased owner was not
barred by limitations.
8. Stipulations.
Where both parties to action by administratrix against a son of her decedents to recover corporate
stock allegedly held by son in trust for his brothers and sisters stipulated to waive the deadman's statute,
refusal of court to recognize stipulation was error. Comp. Laws, sec. 8966.
In action by administratrix against son of decedent to recover, for other brothers and sisters, corporate
stock which son allegedly held in trust for their benefit and which belonged to decedents in their lifetime,
son, at trial, was entitled under the pleadings to deny testimony of witnesses for testatrix tending to
establish a trust and also to offer evidence to show that stock had been transferred to him by decedents
either by way of gift or for a valuable consideration or partly by gift and partly for a consideration.
That defendant, in presenting his assignment of error based upon alleged insufficiency of
evidence, felt he was limited to a discussion of evidence which was admitted at the
trial, did not prevent him from claiming error because of trial court's rejection of his
offer of proof.
upon alleged insufficiency of evidence, felt he was limited to a discussion of evidence which was
admitted at the trial, did not prevent him from claiming error because of trial court's rejection of his offer
of proof.
In action by administratrix to compel defendant to surrender stock which he received from decedents
on the ground that defendant held stock in trust for decedents' heirs, where defendant's position in the
pleadings was that no trust existed and that he held unqualified title to stock by gift and purchase, and
defendant's position on appeal that he acquired stock by a gift, insofar as a discussion of the evidence was
concerned, was compelled as the result of trial court's erroneous ruling rejecting offer of proof of receipt
of stock for a valuable consideration, defendant did not take inconsistent position on appeal and was not
barred from relying thereon.
Appeal from Second Judicial District Court, Washoe County; Thomas J.D. Salter,
Presiding Judge.
Actions by Eleanor Gardella, as administratrix of the estates of Katherine Garaventa,
deceased, and of John Garaventa, deceased, against Joseph A. Garaventa to recover certain
stock certificates and for other relief. Judgment for plaintiff and defendant appeals. Reversed
and remanded for a new trial.
Springmeyer & Thompson, of Reno, for Appellant.
H.R. Cooke and John Davidson, both of Reno, for Respondent.
OPINION
For some years prior to 1919 John Garaventa and his wife Katherine were the owners of
certain ranching properties in Washoe and Lyon Counties. In the latter part of 1918 and the
early part of 1919 the Garaventa Land & Livestock Company was organized. John and
Katherine conveyed said properties, including livestock, to the corporation, which had an
authorized capital stock of 600 shares, each having a par value of $100.
598 shares were issued to John Garaventa, and one share each to Joseph and Frank, two of the
children of John and Katherine. The father and said two sons were elected as directors and
officers of the corporation. In September 1927, one share of the father's stock was canceled,
and a certificate therefor made out in the name of another son, William.
The father and mother died intestate in 1933, John on February 23, Katherine on March 2.
They left as their heirs at law three sons, the said Joseph, Frank, and William, three
daughters, Eleanor, Angelina, and Albina, and one grandchild, Evelyn, daughter of a deceased
son John. The daughters and granddaughter are married. In the summer of 1941 one of the
daughters, Eleanor (Garaventa) Gardella, was appointed and qualified as administratrix of the
estate of her father, and in February 1942, letters of administration were issued to her in the
estate of her mother.
In March 1942 plaintiff commenced two actions against Joseph, one as administratrix of
the estate of her mother and the other as administratrix of the estate of her father. These cases
were Nos. 70,116 and 70,117, respectively, in the Second judicial district court, Washoe
County. In her amended complaints she alleges that shortly after the death of father John,
Joseph took physical possession of the certificates representing 597 shares of said stock, with
the knowledge and consent of all the legal heirs, and kept and held them as trustee for their
use and benefit until July 1941, when he repudiated his trust and thenceforth wrongfully
claimed and asserted that he was the sole and exclusive owner of all said stock. In the prayers
of said complaints plaintiff asked that Joseph be ordered to deliver all of the 597 shares of
stock to plaintiff as administratrix. In his answers Joseph denies the trust, and by way of
affirmative defense alleges that since 1932 he has been in the exclusive possession of all the
issued and outstanding capital stock, and during all that time has openly, notoriously, and
continuously claimed to be the owner of all said stock under a claim of right and title
thereto.
of all said stock under a claim of right and title thereto.
Before said actions were tried, another suit was brought in said district court by said
Eleanor Gardella, as administratrix of the estates of her father and mother, and Frank and
William Garaventa, plaintiffs' against said Joseph Garaventa, Louise Garaventa, Edward
Garaventa, Garaventa Land & Livestock Company and the First National Bank of Nevada,
defendants. The number of this action was 71,626, and it was tried before Honorable A. J.
Maestretti. Plaintiffs sought an injunction and asked for the appointment of a receiver,
alleging mismanagement on the part of Joseph. In addition to a large amount of testimony and
documentary evidence bearing on the question of alleged mismanagement on the part of
defendant Joseph Garaventa, there was also a considerable amount of evidence admitted
regarding the ownership of the 600 shares of capital stock. In rendering its decision, however,
the court in that case did not decide who owned the stock or any part of it. After the decision
in the last mentioned case the other two cases, Nos. 70,116 and 70,117, were tried together
without a jury before a visiting judge, Honorable Thomas J. D. Salter, at that time judge of
the Sixth judicial district court, Humboldt County. On the consolidated trial of these two
cases it was stipulated in each of them that the testimony taken by the respective parties on
the trial of said case No. 71,626 may all or any portions thereof be used by either of the
parties hereto upon the trial of the above-entitled case with the same force and effect as if the
witnesses were personally present and testifying, subject, however, to objections made as
shown by said transcript. It was also stipulated that all exhibits in case No. 71,626 should be
transferred and deemed filed in cases 70,116 and 70,117, and that said exhibits, together with
the transcript of testimony in said action 71,626, should constitute the evidence or offered
evidence, as the case might be, in said consolidated causes.
After due proceedings the court, in case No. 70,116, entered judgment in favor of plaintiff
and against defendant, in part, as follows:
(a) Said plaintiff, as administratrix of the Estate of Katherine Garaventa, deceased, is
adjudged and decreed to be the owner of an undivided one-half interest in 597 shares of the
capital stock of Garaventa Land and Livestock Company * * *.
(b) That said plaintiff, as such administratrix, be and she hereby is decreed to be entitled
to the immediate possession of said undivided one-half part, share and interest in said 597
shares;
(c) That at no time since January 2, 1919, has said defendant been the owner of any
shares of the capital stock of the said Garaventa Land & Live Stock Company, except one
share thereof, represented by Certificate No. 11, issued on said January 2, 1919, in the name
of said defendant.
A similar judgment was entered in case No. 70,117. Motions for new trials were denied,
and defendant has appealed to this court from said judgment and from the orders denying his
motions for new trials.
One of appellant's contentions is that the trial court's decisions, findings, and judgments
are not supported by, and are contrary to, the evidence. In the consideration of this assignment
the court is confronted with an important preliminary question arising out of the fact that the
evidence in the two consolidated cases tried before Judge Salter consists entirely of the
transcript of testimony taken orally in the case tried before Judge Maestretti, and the
documentary exhibits in that case. Appellant maintains that as the trial judge had no
opportunity of observing the witnesses while testifying, and their demeanor on the witness
stand, this court is as capable of examining the evidence and drawing conclusions from it as
was the court below, and that for this reason we should reexamine the entire case, determine
for ourselves the weight of the evidence and credibility of the witnesses, and draw our own
conclusions.
of the witnesses, and draw our own conclusions. Respondent's position on this question is
that under the constitution and statutes of Nevada this court has no power, in the exercise of
its appellate jurisdiction, to try an appealed case on the facts de novo; that where, as here,
there is a substantial conflict of evidence, the action of the trial court in determining the
credibility of witnesses is not to be disturbed on appeal if that court's findings have any
substantial support in the evidence.
1. The findings of fact of a trial court, where there is substantial evidence to support them
and the evidence is conflicting, will not as a general rule be set aside by an appellate court.
There are two reasons for this rule. One is the fact that the position of the trial court for the
purpose of determining factual questions is superior to that of the appellate court in that the
former usually has the opportunity to observe and hear the witnesses and parties and obtain
the benefit of many points and matters that cannot be brought before the appellate court for its
consideration by way of printed record. 5 C.J.S., Appeal and Error, sec. 1656, p. 682, note 63.
The other reason is based upon the fundamental and essential distinction between the
respective provinces of trial and appellate courts. Tupman v. Haberkern, 208 Cal. 256, 280 P.
970; 5 C.J.S., Appeal and Error, sec. 1656, pp. 681, 682, note 62. Under the provisions of the
constitution of Nevada (art. VI, sec. 4) this court is not given original jurisdiction in cases like
the present. The question thus arises whether, where this court is in just as good a position to
weigh the evidence and draw its own conclusions therefrom as was the trial court, we would
be exercising original, not appellate, jurisdiction should we undertake to reexamine the entire
case, determine for ourselves the weight of evidence and credibility of the witnesses, and
draw our own conclusions as to whether the evidence preponderates in favor of the plaintiff.
Appellant does not contend that this court should exercise original jurisdiction in the
present case, or that it should try the case de novo.
it should try the case de novo. He does contend, however, that the ordinary rule of appellate
decision with regard to the weight to be given the findings of the trial court does not apply in
this case. This contention, appellant argues, has nothing whatsoever to do with the kind of
jurisdiction the supreme court is given by the constitution. It pertains merely to a rule of
appellate decision within the jurisdiction of the court. But no authorities are cited in support
of this position. Every case cited by appellant bases its ruling upon the one consideration that
the appellate court in cases like this is in just as good a position to weigh the evidence and
draw its own conclusions therefrom as was the trial court.
The authorities are divided. Appellant is for the most part right in stating that the decisions
of the federal courts sustain his position. 36 C.J.S., Federal Courts, sec. 297, p. 415, notes 24,
25. But they are not unanimous. Bell v. Saxon, 5 Cir., 296 F. 690. In Photoplay Pub. Co. v.
LaVerne Pub. Co., 3 Cir., 269 F. 730, cited by appellant the evidence was uncontradicted.
The court said, 269 F. at page 732: When, however, as in the case at bar, the testimony,
which was taken by deposition here and there in many parts of the country, is uncontradicted,
and the witnesses were never before the trial judge, the rule and reason therefor disappear.
(Italics ours.) In addition to federal decisions, appellant also cites two Idaho cases, and our
own research indicates that a considerable number of other jurisdictions, including Colorado,
New Mexico and Kansas, also support or tend to support his contention. He urges, too, that
the Nevada case of Mortimer v. Pacific States Savings & Loan Co., 62 Nev. 142, 147, 145 P.
2d 733, sustains his position.
On the other hand California, Montana, Minnesota, Wisconsin, Arkansas, Missouri, Texas
and about ten other jurisdictions uphold the rule contended for by respondent.
2. After careful consideration of sec. 4 of art. VI of our state constitution and the
conflicting decisions of the courts, we do not feel that this court can ignore the
jurisdictional question.
our state constitution and the conflicting decisions of the courts, we do not feel that this court
can ignore the jurisdictional question. In our opinion the correct rule is that even where the
evidence was all in writing, the trial court's findings will not be set aside unless clearly or
manifestly against the weight of the evidence, or without any reasonable support therein. Of
the numerous authorities sustaining this rule, we cite but a few which give the reasons for
their holdings. Reay v. Butler, 95 Cal. 206, 30 P. 208; Tupman v. Haberkern, 208 Cal. 256,
280 P. 970; 2 Cal. Jur. 931-932, note 18; Hill v. Stealey, Mo. App., 153 S.W. 2d 813;
Sommers v. City of St. Paul, 183 Minn. 545, 237 N.W. 427; Stephens v. Summerfield, 22
Tex. Civ. App. 182, 54 S.W. 1088; Visanska v. Workingmen's Bldg. & Loan Ass'n. of
Columbia, 41 S.C. 546, 19 S.E. 202. See also In re Walden's Estate, 166 Cal. 446, 137 P. 35;
and Klein v. Valerius, 87 Wis. 54, 57 N.W. 1112, 22 L.R.A. 609. In State v. Johnson, 100
Utah 316, 114 P. 2d 1034, there is an extended and informative discussion showing the
distinction between original and appellate jurisdiction. That case lends support to the rule
adopted here.
In the Mortimer case, 62 Nev. 147, 145 P. 2d 733, 739, appellant's testimony was not
contradicted in any respect, and this is specially pointed out in the main opinion. In the
instant case the testimony is in very sharp conflict with respect to most of the important
issues. In Cassinelli v. Humphrey Supply Co., 43 Nev. 208, 183 P. 523, this court said that a
finding based upon undisputed facts is not binding upon appeal. And see San Diego Trust &
Savings Bank v. San Diego County, 16 Cal.2d 142, 105 P. 2d 94, 133 A.L.R. 416; 5 C.J.S.,
Appeal and Error, sec. 1656, p. 698, note 27; 3 Am. Jur. 471, note 20. In the Mortimer case
this court, in the exercise of its appellate jurisdiction, decided that the trial court had abused
its discretion in allowing the receiver's attorney only $3,000 for his services performed in the
year 1941. It was only after first reaching that conclusion that the court went on to reverse
the order and direct the district court to enter an order allowing appellant $3,000
additional compensation for the services performed by him in that year.
that conclusion that the court went on to reverse the order and direct the district court to enter
an order allowing appellant $3,000 additional compensation for the services performed by
him in that year. That this court, before so modifying the order for 1941 compensation, had
reached the conclusion that the trial court abused its discretion, satisfactorily appears from the
following language appearing earlier in the main opinion: One consideration, we think,
which contributed to the cause of the trial court's failure to exercise a proper discretion in the
premises * * *. The question we have been discussing here was not presented to this court in
the Mortimer case, either in the briefs or in the oral arguments. However, it is clear that the
court was aware of and in accord with the rule that it will not exercise original jurisdiction
except when so authorized by the constitution. This appears from the fact that the court
declined to make a certain order because to do so would be exercising original rather than
appellate jurisdiction.
3. The conclusion we have reached in the foregoing discussion is based squarely upon the
ground that in cases like the present this court has no power or jurisdiction to weigh the
evidence without regard to the findings of the trial court, but can only consider the evidence
for the purpose of determining whether there was any substantial evidence to support such
findings, and whether the conclusions reached by the lower court were clearly wrong. This
the court has done, and there follows a brief summation of the more important parts of the
testimony tending to support the contentions of the respective parties.
Frank Garaventa testified that shortly after the death of his father he and Joe went to the
bank where their father's safety deposit box was, and that they were allowed to open the box
after Joe had signed his father's name; that they removed the 597 shares of capital stockthe
certificates being endorsed in blank; that they took the stock to attorney Kearney's office
where it was to remain until the properties could be built up "to the extent that we could
pay the girls their prorated amount of stock that was coming to them," and the three
brothers would then have the property to themselves; that after the incorporation the
father said that he had placed the stock in the safety deposit box with the understanding
that each of the boys was to get 150 shares and each of the girls 50 shares.
they took the stock to attorney Kearney's office where it was to remain until the properties
could be built up to the extent that we could pay the girls their prorated amount of stock that
was coming to them, and the three brothers would then have the property to themselves; that
after the incorporation the father said that he had placed the stock in the safety deposit box
with the understanding that each of the boys was to get 150 shares and each of the girls 50
shares.
Plaintiff (respondent) testified that a few days after her father died, she sent her brother
William out to the ranch to get the key to the safety deposit box out of her father's pants
pocket; that after getting it, William gave it to Joe; that on one occasion Joe told her that the
father had turned everything over to him when he (Joe) was 14 years old, and that he had a
paper to show this, but that Mr. Kearney didn't want him to produce it until the right time;
that shortly before her father's death, when her husband and mother were also present, her
father said that he had left the papers in the bank box, that each of the girls would have 150
shares, the niece ten shares, and the balance to go to the three boys; that during this
conversation Joe Garaventa and his wife were not present, but were in the kitchen; that her
father at different times stated what disposition he was going to make of the stock; that on
one occasion he said he wished that he could make a sale of one of the ranches so that he
could give the girls $5,000 apiece; on another occasion he said that 50 shares were coming to
each of the girls and 150 apiece to the boys; that Frank always handled the business end of the
company, and the father kind of looked up to him; that Frank was on the ranch continuously
until after the father's death; that he did ranch work like all the rest, besides letter writing and
taking care of the business part; that Bill also did ranch work like the others, and the same
was true as to Joe.
William Garaventa testified that he got the key out of a purse in his father's overalls and
gave the key to Joe; that Joe said he wanted to get the shares out of the safety deposit
box and put them in Mr.
of a purse in his father's overalls and gave the key to Joe; that Joe said he wanted to get the
shares out of the safety deposit box and put them in Mr. Kearney's office and they could be
divided later; that Joe said he signed dad's name, got into the box at the bank and took the
shares of stock to Mr. Kearney's office; that Joe said he didn't like to sign his father's name
and get the stock that way, but thought it would save expense as the company was pretty
heavily mortgaged, and that the shares might be divided amongst the heirs without going
through court; that Joe said Frank was with him when he got the stock out of the safety
deposit box and that the stock was then taken to Mr. Kearney's office; that from 1927 on,
witness was told by his father and brothers that he had the same share as the other boys; that
he worked for a Mr. Cowles a little more than two months in 1931 and about three months in
1932, but the rest of the time was working on the Garaventa ranches; that about the fall of
1918 his father and mother discussed with him the matter of incorporating the ranches, the
reason for this step being, according to the father, that the latter was having trouble with Joe,
who at different times wanted his father to sign the Wadsworth ranch over to him; that the
father said he felt that he wanted to leave the property to all of the children equally, and that
therefore he was going to incorporatethat they were all his boys and he was going to
incorporate the property and leave it to them all the same; that the father sometimes said that
he was not satisfied with some of the things Frank was doing, but that he never said that
Frank would not have any share in the company stock; that whenever the matter of the stock
was discussed the father always said that the boys were to be left equal; that he always said
this up to the time of his death.
David Gardella, husband of respondent, testified that when his father-in-law learned in
1931 that witness' property in Reno was mortgaged for more than $4,000 he said, "If
everything go right I want to sell that ranch, Fort Churchill, I give you the money to pay
your mortgage.
he said, If everything go right I want to sell that ranch, Fort Churchill, I give you the money
to pay your mortgage. I leave enough to your wife to pay the mortgage on this property; that
his father-in-law told him a couple of times that Joe wanted to get the property all by himself,
but that he (the father-in-law) said, all my kid, I want to treat everybody the same; that his
father-in-law told him these things about three years before his death, at the Wadsworth
ranch; that his father-in-law said, I want to treat all the same way, I want to leave money to
all of them, all my kids; that witness received no pay for his work, and his father-in-law said,
You get your pay; you get your pay in shares; that it was between the fall of 1932 and
February 1933 that witness had the talk with his father-in-law about the Quincy street
property in Reno; that it was after the banks closed and times were pretty hard; that he had
this nice piece of property in Reno, but told his father-in-law that there was quite a mortgage
on it; that his father-in-law then said, Want to know how much the mortgage is you got; if I
can sell the ranch, all right, if I dont, I leave enough in shares; that it was the Towle ranch
(Fort Churchill) that his father-in-law was talking about; that witness was at his home on the
evening of February 23, 1933, when John Garaventa, his wife's father, was brought in from
the ranch; that after the old gentleman, with witness's help, undressed, and after witness went
to bed, my wife come over, he told her to go get the key out of his pants, somebody to get
the key, he got some stock in the bank, he want to take it out, some shares of some kind; that
his father-in-law had only one key; that William Garaventa went down, got the key, and gave
it to Joe.
Joe Garaventa testified that he was fifty years of age; that he has lived on the Wadsworth
ranch and worked on that and the other Garaventa ranches all his life since he was about
sixteen years old, and also before that during school vacations, and chore work after school;
that he first got possession of 250 shares of the capital stock in January 1919 in Mr.
school; that he first got possession of 250 shares of the capital stock in January 1919 in Mr.
Kearney's office; that he got a further 100 shares in 1927 and the remainder of the stock in
1932; that on these occasions his father was with him in the office of Mr. Kearney, who was
also present; that the stock is all in the same condition now as it was during the period he had
it in his possession; that at each of said three times when he received a part of the stock he
took it home, where he kept it in his desk to which he had access; that no one else had access
to this desk; that he never kept any of the stock certificates in a safe deposit box in the Reno
National Bank; that so far as he knows none of them was ever kept there; that he never went
to the main office of the Reno National Bank with his brother Frank and took these stock
certificates or any of them from a safety deposit box there; that he can't remember ever going
to the bank with Frank after their father's death; that he never got a key to the father's safety
deposit box from William; that he (Joe) had the key; that in 1940 he told William that the
latter did not have any interest in the company, and that William then said he was going to
kill Joe; that witness told William he was going to sell the ranch because it was getting too
hard for him and he couldn't keep up with it; that William said he would like to buy the
Newlands ranch himself, and that Joe told him to get the money and he could have itthat
witness would make the price as cheap as he possibly could; that William did not at that time
assert any interest in the corporation; that in 1939 also he told William that he (William) had
no interest in the stock; that Frank never asserted any interest in the corporation; that in the
summer of 1942 a trust deed was given to Mr. Kearney for $5,000 by the company though
Joe and his new board of directors for money that was owing Mr. Kearney; that the safe and
the desk belong to the corporation.
Mrs. Louise Garaventa, Joe's wife, testified that the desk in the Garaventa house at
Wadsworth about which there had been some testimony was not in the house when
witness and Joe were married; that they bought it after their marriage, either in 191S or
1919; that it was paid for by witness with money she made, and she gave it as a
Christmas present to her husband; that it has been there ever since, and that hardly
anybody except her husband ever used it; that he had the key to the desk; that none of
the other Garaventas used the desk so far as she knows, and that her husband used it to
keep his personal things in, such as papers; that her husband's parents lived with Joe and
Louise at the Wadsworth house from 1913 until '1S or '19; that they then went to the
Newlands ranch, and after that to the Towle ranch; that they kept going back and forth
between the Wadsworth ranch and the other ranches, but only stayed overnight or a day
or two at the Wadsworth ranch and would then return to the Newlands or the Towle
ranch and that this continued up to the times of their deaths; that witness did all kinds of
work on the ranch, not only for her own family but for William, including washing for him
and for the old folks; that she has seen the corporation stock at different times, first in
1919; that her husband had part of the stock at that time and put it in his desk; that she
also saw bundles of the stock certificates in 1927 and talked to her husband about it, as
she had also done in 1919; that she also saw all the stock again in 1932, and talked over
matters concerning it with her husband Joe; that she and her husband never talked to
Joe's father about their leaving the ranch; that Joe did all kinds of work on the ranch,
getting up at 4:30 in the morning and keeping going until dark; that he couldn't depend
upon his brothers or his father.
desk in the Garaventa house at Wadsworth about which there had been some testimony was
not in the house when witness and Joe were married; that they bought it after their marriage,
either in 1918 or 1919; that it was paid for by witness with money she made, and she gave it
as a Christmas present to her husband; that it has been there ever since, and that hardly
anybody except her husband ever used it; that he had the key to the desk; that none of the
other Garaventas used the desk so far as she knows, and that her husband used it to keep his
personal things in, such as papers; that her husband's parents lived with Joe and Louise at the
Wadsworth house from 1913 until '18 or '19; that they then went to the Newlands ranch, and
after that to the Towle ranch; that they kept going back and forth between the Wadsworth
ranch and the other ranches, but only stayed overnight or a day or two at the Wadsworth
ranch and would then return to the Newlands or the Towle ranch and that this continued up to
the times of their deaths; that witness did all kinds of work on the ranch, not only for her own
family but for William, including washing for him and for the old folks; that she has seen the
corporation stock at different times, first in 1919; that her husband had part of the stock at
that time and put it in his desk; that she also saw bundles of the stock certificates in 1927 and
talked to her husband about it, as she had also done in 1919; that she also saw all the stock
again in 1932, and talked over matters concerning it with her husband Joe; that she and her
husband never talked to Joe's father about their leaving the ranch; that Joe did all kinds of
work on the ranch, getting up at 4:30 in the morning and keeping going until dark; that he
couldn't depend upon his brothers or his father.
William M. Kearney, Reno attorney, testified that when the corporation was organized,
John Garaventa, the father kept all but 250 shares of the stockone share was given by him
to Frank, one to Bill, and 250 shares to Joe; that after the death of the father, no certificates of
the stock were ever brought to witness's office by Joe and Frank, or by William and Frank;
that the stock certificates have not, nor has any of them, been in his office, or in his
possession or control, since the death of the father; that witness never told any one to
sign the name of John Garaventa upon the records of the Reno National Bank or safe
deposit box; that in 1927 Joe was given another 50 or 100 shares of stock by his father;
that in 1927 one share in the name of William E.
of the stock were ever brought to witness's office by Joe and Frank, or by William and Frank;
that the stock certificates have not, nor has any of them, been in his office, or in his
possession or control, since the death of the father; that witness never told any one to sign the
name of John Garaventa upon the records of the Reno National Bank or safe deposit box; that
in 1927 Joe was given another 50 or 100 shares of stock by his father; that in 1927 one share
in the name of William E. Garaventa was in witness's possession and under his control; that
the father later took his share out of witness's possession, along with some other of the stock
which had been temporarily in his possession; that witness had taken considerable interest in
this case (No. 71,626), and believes that defendants should prevail.
Evelyn Wilson testified that when she saw her grandfather very shortly before his death he
was in a state of coma through the whole day and evening before his death; that he couldn't
speak coherently, or at all; that she never told respondent that there had been something left
her by her grandfather and that she (Evelyn) was going to sue Joe for it; that respondent never
told her not to suethat she (Eleanor) would speak to Joe; that in the early part of 1934
respondent told her that there was a provision made for her (Evelyn) in the estate in cash, and
that unless Evelyn opened the estate she was going to lose it; that she was never asked to be
made a party plaintiff in this case; that she hadn't spoken to Frank or to respondent for some
time; that she and Bill are friendly; that she thinks Angelina is not friendly to her; that her
grandfather was not conscious at any time during the day she saw him from the morning until
the night he died; that she came up from San Francisco to be a witness, but that nobody
requested her to come; that she had taken quite an interest in the suit (No. 71,626).
D.D. Huartson, chief appraiser for California Western States Life Insurance Company
which had a mortgage on the Garaventa properties, testified that in the middle or latter part
of 1933 Joe told him, "I own all the stock."
middle or latter part of 1933 Joe told him, I own all the stock.
4. It is clear that there is substantial evidence to support the trial court's findings, and we
find it impossible to say that they are so clearly and manifestly incorrect, erroneous and
wrong as to justify or require a reversal on the ground of insufficiency of evidence.
5, 6. Appellant contends that the amended complaints do not state causes of action in
favor of plaintiff as administratrix, and that the findings of fact do not support, and are
inconsistent with, judgments in her favor as administratrix. He maintains that plaintiff, as
administratrix, cannot recover the stock unless there are creditors of the estates whose rights
must be protected. He asserts that the record in the two Garaventa estate proceedings shows
that no creditors' claims have been filed, and that the time for filing them has expired. It is his
position that any cause of action for the alleged repudiation of the trust lies in favor of the
other heirs as plaintiffs, not in favor of the administratrix of the estates. Respondent states in
his brief that a creditor's claim for over $800 was on file in the John Garaventa estate long
before the issues were made up in the present case. Said claim, says respondents, was based
on a promissory note signed by John Garaventa. Neither appellant nor respondent cites any
place in the record, transcript, or exhibits showing whether there were any creditors of the
estates. Appellant has always denied that there was a trust, and so the heirs have never been
able to agree on a settlement or upon a satisfactory disposition of the estates among
themselves. 33 C.J.S., Executors and Administrators, sec. 5, subsection c, pp. 884, 885.
Again, regardless of whether there were debts against the estates, the court had jurisdiction to
grant administration. Id., sec. 6, subsection c. p. 887, note 11.
7. Appellant's contention that plaintiff's causes of action are barred by the statute of
limitations is based upon his claim that no trust was created or existed as found by the trial
court.
found by the trial court. He recognizes that the actions were not barred if the trust existed.
The amended complaints alleged, and the lower court has found, that there was a trust and
that it was wrongfully repudiated by defendant about July 1941. As this court has declined to
set these findings aside, we hold that the causes of action were not barred.
In the trial of these cases the court excluded certain testimony of attorney William M.
Kearney. The defendant (appellant) offered to prove by positive testimony of Mr. Kearney
that the title of the capital stock had been transferred from father John Garaventa to
defendant, and to prove further by conversations between father John and Mr. Kearney, in the
presence of other persons, the reason why the title to said stock had been parted with by the
father and transferred to his son Joseph. The offer of proof included a conversation on
January 2, 1919, in which father John, Joseph, William and Mr. Kearney participated. In this
conversation, according to the offer of proof, father John said that inasmuch as Joe had a
family and all of them had been working on the ranch, Joe could remain on the home ranch
with his family, and the father would give him 250 shares of the stock if he would be satisfied
with that arrangement. Joe said he would be, and thereupon the father turned over to him a
certificate for 250 shares of the stock. The father said that he and his wife would live on the
Newlands ranch, would get more cattle and run them on that ranch. The offer further included
an alleged conversation at a meeting of the directors in September 1927 when father John,
Joe, Frank, Will, and Mr. Kearney were present. This conversation related in part to certain
conduct of Frank which was displeasing to father John and the others, and according to the
offer Mr. Kearney's testimony would show that Frank, at this meeting, voluntarily resigned as
a director and officer of the company. In the same conversation the father, John, allegedly
stated that he had already talked with Frank and Joe about electing Will as a director in
Frank's place.
talked with Frank and Joe about electing Will as a director in Frank's place. The offer of proof
also included testimony that Mr. Kearney would give regarding a meeting held in the early
part of 1932, at which there were present father John, Joe, Mr. Kearney, and a Mr. Dalton,
representative of the California State Life Insurance Company. At this time it appeared that
the insurance company was threatening foreclosure. Thereafter, according to the offer of
proof, father John and Joe discussed with Mr. Kearney the demand of the insurance company
for its money. Joe said they might as well turn the property over to the mortgagee and he
would go out and work to support his family, since they could not borrow any money to pay
taxes or run the ranches and had no means of borrowing more money. They also are alleged
to have talked about Will having left and gone elsewhere. Father John, according to the offer
of proof, said to Joe that if he would stay on the place and try to work it out, he would give
Joe the balance of the stock, and in that way Joe could have a home for himself, and the
father and mother also could have a home while they lived; thereupon Joe replied that he
would stay under those conditions and the father handed him the balance of the stock, saying
in substance and effect that now Joe owned it all.
8. Plaintiff objected to said offer of proof upon the ground that the admission of the
offered testimony would violate the provisions of sec. 8972, N.C.L. 1929, which reads in part
as follows: An attorney cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in the course of
professional employment. Earlier in the trial, before the offer of proof was made, both
parties expressly waived the provisions of sec. 8966, N.C.L. 1929, which provides in part that
no person shall be allowed to testify when the other party to the transaction is dead. But later
on when plaintiff objected to a question asked Mr. Kearney concerning a conversation at
which he, father John and defendant were present, basing the objection on said section
S972, N.C.L. 1929, the following took place:
at which he, father John and defendant were present, basing the objection on said section
8972, N.C.L. 1929, the following took place:
The Court: The objection is sustained. I am not going to recognize your stipulation any
more as to a suspension of the dead man's rule, because I do not believe I had a right to do it.
Mr. Cooke: Of course, I am not making it with reference to that, your Honor. I am
making it on the statute. Section 8972, N.C.L. 1929.
The Court: The objection is sustained.
We think the trial court should have continued to recognize the stipulation of the parties
waiving the so-called dead man rule. In re Golding's Estate, 58 Nev. 274, 76 P. 2d 1099.
From the court's language it is impossible to say upon what ground the objection was
sustained, and the same is true regarding the ruling sustaining plaintiff's objection to the offer
of proof.
9-11. On this appeal appellant has not, either in his brief or oral argument, relied upon
either the dead man rule or the statute relating to privileged communications between
attorney and client. His contention here is that the offer of proof is legal evidence against
appellant's claim advanced on this appeal that the stock was a gift. Respondent contends that
the theory of the defense in the trial court was that the stock had been transferred for a
valuable consideration, whereas on this appeal appellant has assumed a different position,
namely, that the stock was a gift. According to our view of this matter, defendant at the trial
was entitled under the pleadings not only to deny the testimony of plaintiff's witnesses
tending to establish a trust, but also to offer evidence showing or tending to show that the
stock had been transferred to him by his father, either by way of gift or for a valuable
consideration. 38 C.J.S., Gifts, sec. 64, pp. 852, 853, notes 49, 50. Or, defendant could show
that some of the stock had been transferred to him as a gift and the balance for a valuable
consideration.
valuable consideration. The important question is whether the title to the stock was
transferred to appellant by his father, and in attempting to establish that fact defendant was
entitled to offer any competent, relevant and material evidence for the purpose of showing
that the transfer was made in fact' whether by way of gift or for a valuable consideration. The
trial court having sustained plaintiff's objection to defendant's offer of proof, defendant was
placed in a position where he was compelled to rely upon other testimony tending to establish
a transfer of the title to the stock either by way of gift or transfer for a valuable consideration.
The written decision of the trial court shows that it recognized that the defendant on the trial
had attempted to show that the stock had been transferred either for a consideration or by way
of gift. I think, says the court, the evidence supports the view that there was no such good
and sufficient consideration of a sale, and that there is no clear and unmistakable intention of
John to make a gift. In presenting his assignment of error based upon alleged insufficiency
of the evidence, defendant naturally felt that he was limited to a discussion of the evidence
which was admitted at the trial, but that does not prevent his claiming error because of the
lower court's having rejected his offer of proof. We are of the opinion that defendant did not
change the theory of his defense within the meaning of the general rule that a party on appeal
may not change the theory upon which the case was tried below, nor take a position
inconsistent with that he maintained in the trial court. On the contrary, the position which
defendant has been compelled to take on this appeal, so far as the sufficiency of the evidence
is concerned, is the result of the trial court's erroneous ruling in rejecting the proffered
testimony of the witness Kearney; and one of appellant's strongest contentions on this appeal
is that because of that ruling he has been prejudiced in his right to show or attempt to show
that the stock was in fact transferred to appellant by his father, and the reasons for such
transfer.
Any apparent inconsistency in appellant's position on the trial with that assumed by him on
this appeal is due entirely and directly to the ruling of the lower court rejecting his offer of
proof. Respondent had her day in court with respect to both issuesgift, and transfer for
valuable considerationand defendant's position on this appeal is not unfair, either to the
trial court or to respondent.
Nothing in this opinion is to be understood as expressing or indicating the opinion of this
court regarding the credibility of any witness, or as to how these cases should be decided on
the merits.
The judgments and orders appealed from are reversed, and the causes remanded for a new
trial.
____________
63 Nev. 325, 325 (1946) Koyen v. Lincoln Mines, Inc.
WESLEY KOYEN, EVA KOYEN, His Wife, G.W. THIRIOT and DEAN P. THIRIOT
and WINIFRED E. GREEN, Appellants, v. LINCOLN MINES, INC., a
Nevada Corporation, Respondent.
No. 3443
June 26, 1946. 171 P. 2d 364.
1. Mines and Minerals.
Under a lease providing that lessee of mining claims should pay all state and county taxes resulting
from the production of ores from lessee's mining operations, lessee was liable for tax on royalties levied
against lessors. Comp. Laws, secs. 6578-6591, as amended; sec. 6580, subd. 10, as amended by Stats.
1939, c. 174.
2. Taxation.
Where statute provided no method for determining the net proceeds of one receiving royalty under
lease covering mining claims, cash value of the royalty must be taken in assessing the tax. Comp. Laws,
secs. 6578-6591, as amended; sec. 6580, subd. 10, as amended by Stats. 1939, c. 174.
Appeal from Seventh Judicial District Court, Lincoln County; George E. Marshall,
Presiding Judge.
Action by Wesley Koyen, Eva Koyen, his wife, G.W. Thiriot, Dean P. Thiriot, and
Winifred E. Green against Lincoln Mines, Inc., to obtain a declaratory judgment to
determine a controversy which arose between the lessors and the lessee of certain mining
claims as to who must pay the tax levied against the lessors on account of the receipt of
royalties under the terms of the lease agreement.
Lincoln Mines, Inc., to obtain a declaratory judgment to determine a controversy which arose
between the lessors and the lessee of certain mining claims as to who must pay the tax levied
against the lessors on account of the receipt of royalties under the terms of the lease
agreement. From an adverse judgment and order overruling motion for a new trial, the
plaintiffs appeal. Judgment and order reversed with directions to enter judgment for
appellants in accordance with opinion.
Dilworth Wooley, of Manti, Utah, and Morse, Graves & Jones, of Las Vegas, for
Appellants.
Lewis & Hawkins, of Las Vegas, and Senior & Senior, of Salt Lake City, Utah, for
Respondent.
OPINION
This action was brought to obtain a declaratory judgment to determine a controversy which
arose between the lessors and the lessee of certain mining claims as to who must pay the tax
levied against the lessors under the provisions of sec. 6580, N.C.L., as amended by chapter
174, Statutes of Nevada 1939, on account of the receipt of royalties under the terms of the
lease agreement.
The five appellants, four of whom brought the action, are the lessors in said lease. The
other was thereafter joined as plaintiff. Judgment was rendered against them on the pleadings
from which, and the order overruling their motion for a new trial, this appeal was taken. No
question of fact is involved. The errors assigned embrace the one question of law above
stated.
There were two leases executed by the lessors in respect to the mining claims involved.
The first executed by them on June 2, 1938, contained the following stipulation as to the
payment of taxes: "The lessees further agree that they will pay all taxes levied or assessed
by the state or county upon the net proceeds of any ores extracted and sold under the
terms of this lease and the amount assessed against said royalties.
The lessees further agree that they will pay all taxes levied or assessed by the state or
county upon the net proceeds of any ores extracted and sold under the terms of this lease and
the amount assessed against said royalties. * * *
On March 18, 1940, all of the lessees' interest in and under said lease of June 2, 1938, was
assigned to Lincoln Mines, Inc., the respondent, and on March 20, 1940, the parties herein
entered into a modified lease agreement which amended and modified the original lease
agreement. In this latter lease the stipulation in the former lease as to the payment of taxes
was eliminated and the following stipulated as to the payment of such taxes:
The lessee further agrees that it will pay all state and county taxes having to do with the
assessment and taxation of net proceeds of mines, resulting from the production of ores from
lessee's mining operations.
1. Under these facts and the applicable law we reach a different conclusion from the court
below, and are of the opinion that the respondent is obligated to pay the tax on the royalties.
The legislation for carrying into effect the provisions of the constitution that the proceeds
alone of unpatented mines and mining claims shall be assessed and taxed, is found in sections
6578 to 6591, inclusive, N.C.L. 1929, and amendments thereto. The particular provision
applicable to the facts of this case is paragraph 10 of section 3 of the said 1939 amendment,
which reads:
All moneys paid as royalties by a lessee or sublessee of a mine, or by both, shall
constitute a deductible item for such lessee or sublessee in determining the net proceeds of
such lessee or sublessee or both; provided, however, that the royalties so deducted by said
lessee or sublessee, shall constitute part of the gross yield of the mine for the purpose of
determining the net proceeds upon which a tax shall be levied against the person, corporation,
association, or partnership to which the said royalty has been paid.
A 1937 amendment to said section 3, chapter 68, paragraph 10, provided in part:
The actual amount deducted from the proceeds and/or paid as royalty by a lessee and/or
sub-lessee of a mine shall be and constitute a deductible operating expense of such lessee
and/or sub-lessee, and shall not be taxable against such lessee or sub-lessee. * * *
Prior to this amendment under the original act, royalties were not deductible as an item of
costs in determining net proceeds, and consequently were a part of the net proceeds and
taxable as such.
In our decision in Goldfield Consolidated Mines Co. v. State, 60 Nev. 241, 106 P. 2d 613,
616, it was held that under the 1937 amendment royalties were not taxable as net proceeds.
We said further:
The Legislature, in its enactment of 1939, seems to have recognized the fact that by its
enactment of 1937, it set out from net proceeds of mines certain amounts paid as royalties,
which had theretofore been taxed as net proceeds, and that in excluding such royalties from
the net proceeds it made no provision for taxes on such royalties; and, doubtless being
desirous of again bringing the royalties under the sphere of taxable property, enacted the
amendment of 1939. Such construction should be given the legislative declaration of 1939.
The plain language of said paragraph 10 as it now stands, leaves no doubt in this regard.
It is equally plain that it was the legislative intention to bring royalties within the sphere of
property taxable on the basis of net proceeds. The paragraph provides for the exclusion of
royalties from net proceeds of the lessee or sublessee, or both, as it did by the 1937
amendment, but constitutes them a part of the gross yield from which shall be determined the
net proceeds of the one receiving the royalty upon which a tax is to be levied against such
person or entity.
2. As the statute provides no method for determining the net proceeds of the one receiving
the royalty, for it is delivered without operating cost, the same must necessarily be
determined on the basis of the cash value of the same.
necessarily be determined on the basis of the cash value of the same. Homestake Exploration
Corporation v. Schoregg, 81 Mont. 604, 264 P. 388-393. Section 3, as amended in 1939,
provides for net proceeds of a lessee or sublessee, or both, and net proceeds of the one having
the royalty interest. The constitutional provision that the proceeds of unpatented mines and
mining claims shall be assessed and taxed is, by this amendment, given full effect, as was the
case prior to the 1937 amendment.
The modified lease agreement as to the payment of taxes by the lessee (respondent) on the
net proceeds of mines resulting from the production of ores from lessee's mining operations,
is all inclusive. It reflects the obvious intention of the parties that the lessee (respondent) was
to pay all state and county taxes having to do with the net proceeds of mines resulting from
the production of ores from lessee's mining operations. In construing it we see no reason for
ignoring its literal sense. Just why the parties departed from the tax-paying stipulation in the
original lease in which payment of the amount assessed against royalties was expressly
stipulated, and resorted to general phraseology expressing the same meaning, is not apparent.
But it could be because of the legislative change after the original lease was executed. The
express stipulation as to royalties was necessary in the original lease under the 1937
amendment to charge the lessees with the payment of taxes thereon. But its inclusion in the
modified lease agreement in addition to the stipulation as to the net proceeds would have
been surplusage under the 1939 amendment. However, the language subsequently employed
is, in our opinion, capable of no other reasonable interpretation than that respondent is
obligated to pay the tax upon that part of the net proceeds received by appellants as royalties.
The judgment and order denying a new trial are hereby reversed and the lower court is
directed to set them aside and enter judgment for appellants in accordance with this opinion.
____________
63 Nev. 330, 330 (1946) Western Realty Co. v. City of Reno
WESTERN REALTY CO., a Nevada Corporation, Appellant, v. THE CITY
OF RENO, a Municipal Corporation, Et Al., Respondents.
No. 3463
July 12, 1946. 172 P.2d 158.
1. Municipal Corporations.
The provision of special act amending charter of city of Reno that special assessment may be divided
into not more than twenty annual installments is an exception to provision in same act that special
improvement bonds may be issued in accordance with Municipal Improvement Bond Act authorizing
municipalities to issue bonds for improvements for which special assessments are levied payable in ten
years, and the special act controls not only in respect of the time within which bonds shall be payable but
the purposes for which they may be issued. Stats. 1903, c. 52, art. 12, secs. 10.15, 10.30, 10.105, as
amended by Stats. 1945, c. 223, secs. 20, 23, 37c; Comp. Laws, secs. 1382-1389.
2. Statutes.
A special provision dealing expressly and in detail with a particular subject is controlling in
preference to a general provision relating only in general terms to the same subject.
3. Statutes.
The provisions of general and special acts must be harmonized when reasonably possible.
4. Statutes.
A general law will not be held to be repealed or modified by implication by a subsequent special law
unless the subsequent special act is so clearly in conflict with the existing general law that both cannot
stand.
5. Statutes.
Where express terms of repeal are not used, the presumption is always against the intention to repeal
an earlier statute unless there is such inconsistency or repugnancy between the statutes as to preclude the
presumption, or the later statute revises the whole subject matter of the former.
6. Statutes.
Where two statutes are flatly repugnant, the later as a general rule supplants or repeals the earlier.
7. Statutes.
The legislature may pass special acts relating to the formation and powers of municipal corporations
notwithstanding provision of Constitution requiring that, where a general law can be made applicable,
laws shall be general and of uniform application. Const. art. 4, sec. 21; art. 8, sec. 1.
It is not the province of courts to pass up the wisdom of legislative policy, but it is their
function to determine whether a general law is applicable within constitutional
provision that where a general law can be made applicable all laws shall be general
and of uniform operation throughout the state.
of legislative policy, but it is their function to determine whether a general law is applicable within
constitutional provision that where a general law can be made applicable all laws shall be general and of
uniform operation throughout the state. Const. art. 4, sec. 21.
9. Statutes.
The statute relating to special improvements by the city of Reno does not infringe constitutional
provision that where a general law can be made applicable all laws shall be general and of uniform
operation throughout the state. Comp. Laws, secs. 1382, 1387; Stats. 1903, c. 52, art. 12, sec. 10.105, as
amended by Stats. 1945, c. 223, sec. 37c.
10. Municipal Corporations.
Special improvement ordinances of the city of Reno, creating a special storm and sanitary sewer and
improvement district in conformity with Municipal Improvement Bond Act except so far as modified by
special statute relating to city of Reno, are valid. Comp. Laws, secs. 1382, 1387; Stats. 1903, c. 52, art.
12, secs. 10.15, 10.105, as amended by Stats. 1945, c. 223, secs. 20, 23, 37c.
Action by Western Realty Company against the city of Reno and others to enjoin the
issuance of improvement district bonds. From a judgment dismissing the complaint, the
plaintiff appeals. Judgment affirmed.
Wilson & Skinner, of Reno, for Respondents.
OPINION
It appears from the record on appeal that the respondent, the city council of the respondent
the city of Reno, Nevada, a municipal corporation, on the 1st day of October 1945, duly and
regularly passed and adopted city ordinance No. 733, entitled, in part: An ordinance creating
and defining the boundaries of a special storm and sanitary sewer and improvement district
to be known and designated as 'Westfield Village Improvement District'; declaring the
determination of the City Council of the City of Reno to make certain public improvements
therein * * *."
and sanitary sewer and improvement district to be known and designated as Westfield
Village Improvement District'; declaring the determination of the City Council of the City of
Reno to make certain public improvements therein * * *.
And that said city council of the city of Reno, Nevada, did, on the 11th day of February
1946, duly and regularly pass and adopt city ordinance No. 745, amending said city ordinance
No. 733; and that said city council of the city of Reno, Nevada, did, on the 15th day of April
1946, duly and regularly pass and adopt city ordinance No. 752, entitled, in part, An
Ordinance providing for and directing the issuance by the City of Reno of its negotiable
coupon bonds in the amount of $82,992.63 to be called 1945 Westfield Village Improvement
District Bonds' bearing interest at a rate not to exceed 2 1/2 % per annum for the purpose of
providing funds to defray the cost of special improvements for the benefit of lands within that
certain special storm and sanitary sewer and improvement district within the City of Reno,
designated by City Ordinance No. 733 as Westfield Village Improvement District' * * *.
The appellant, Western Realty Co., a Nevada corporation, on April 22, 1946, commenced
an action against respondents, the city of Reno, Nevada, et al. In the complaint in said action
in paragraph IX thereof, it is alleged:
That said City Ordinances, Exhibits A,' B' and C,' are void and invalid in that it is an
attempt to authorize, to issue and to sell said municipal bonds in an unlawful manner, without
authority of law and in violation of the authority vested in defendants by Section 10.30 of
Article XII of that certain Act of the Legislature of the State of Nevada entitled:
An Act to incorporate the town of Reno, in Washoe County, and defining the boundaries
thereof, and to authorize the establishing of a city government therefor, and other matters
relating thereto' as amended.
The act just above referred to is the Reno charter act, of 1903, as amended in 1905 and
from time to time thereafter, including the amendatory act of 1945, Stats. of Nevada 1945, c.
223, pp. 398-440.
In said complaint the plaintiff, Western Realty Co., a Nevada corporation, prays that said
city ordinances, designated in said complaint as Exhibit A (which is said city ordinance No.
733), Exhibit B (said city ordinance No. 745), and Exhibit C (said city ordinance No.
752), be declared invalid, and the defendants (respondents herein) be enjoined and restrained
from issuing and selling said municipal bonds, authorized by said ordinances, and for general
relief.
The respondents demurred to said complaint upon the ground that same did not state facts
sufficient to constitute a cause of action, and on the 17th day of May 1946 the Second judicial
district court of the State of Nevada, in and for the county of Washoe, department 2, the Hon.
A. J. Maestretti, district judge, presiding, duly made an order sustaining said demurrer, but
with leave to plaintiff (appellant herein) to amend its complaint on or before the 20th day of
May 1946. A copy of the court's said order was duly served upon plaintiff's attorneys, on the
said 17th day of May 1946. The plaintiff having failed to amend its complaint within the time
allowed by said court, or at all, the said district court, on the 21st day of May 1946 rendered
its judgment that the said complaint be dismissed, and that plaintiff and defendants,
respectively, pay their own costs of suit.
From that judgment of dismissal, and the whole thereof, the plaintiff (appellant herein) has
appealed.
The pertinent provisions of the charter of the city of Reno, Statutes of Nevada 1903, p.
184, c. 52, as amended from time to time, and as amended at the 42d session of the
legislature, Statutes of Nevada 1945, pp. 398-440, are on pages 410 and 419 of the latter
volume, and are as follows: "Sec. 23. Article XII of the above-entitled act is hereby
amended by adding thereto a new section which shall immediately follow section 10.26
and which shall be known as section 10.30 and which shall read as follows:
Sec. 23. Article XII of the above-entitled act is hereby amended by adding thereto a new
section which shall immediately follow section 10.26 and which shall be known as section
10.30 and which shall read as follows:
Section 10.30. Bonds for the purpose of paying the cost of improvements for which
special assessments are levied may be issued by the city in accordance with An Act to
authorize municipalities to issue bonds for the purpose of paying the cost of municipal
improvements for which special assessments are levied,' approved March 13, 1909, as the
same has been or may hereafter be amended from time to time; provided, however, that such
improvement bonds may be issued for any purpose for which a special assessment can be
levied herein, and the purposes for which such bonds may be issued shall not be limited to the
purposes for which special assessments can be levied under the terms of said act. Such bonds
shall be payable out of the fund created by special assessment, but if such fund be insufficient
to pay said bonds as they become due, the deficiency shall be paid out of the general fund of
the city, and every improvement bond created by the city shall contain such a provision. In the
event of any deficiency in the general fund it shall be mandatory for the city council to levy
taxes in accordance with the provisions of this act, and particularly article XII, section 10.5
hereof in order to provide funds to immediately pay such bonds. No election shall be
necessary to issue such improvement bonds irrespective of the fact that said bonds are also
payable out of the general fund of the city.
* * * * * * *
Sec. 37c. Article XII of the above-entitled act is hereby amended by adding thereto a new
section to immediately follow section 10.100 which shall be known as section 10.105 and
shall read as follows:
Section 10.105. All special assessments shall from the date of recording thereof,
constitute liens upon the respective lots or parcels of land and improvements assessed, and
shall be charged against the persons and properties until paid.
respective lots or parcels of land and improvements assessed, and shall be charged against the
persons and properties until paid. Upon the confirmation and recording of any assessment, the
amount thereof may be divided into not more than twenty (20) installments, one of which
shall be collected each year or the entire amount thereof shall be collected at once, in the
manner hereinafter prescribed, with annual interest thereon at a rate not exceeding seven
percent from the time due.
It will be noted that in section 10.30 of the foregoing amendatory act of 1945, the
municipal improvement bond act of 1909 is referred to expressly, and provision thereby made
for the issuance of bonds in accordance therewith for the purpose of paying the cost of
improvements for which special assessments are levied. To the provision referring to said
municipal improvement bond act of 1909, and, in a certain sense, adopting it as the basis of
authorized bond issues, is the following proviso: provided, however, that such improvement
bonds may be issued for any purpose for which a special assessment can be levied herein,
and the purposes for which said bonds may be issued shall not be limited to the purposes for
which special assessments can be levied under the terms of said act. (Italics ours.)
It will be further noted that the provision in section 10.105, on page 419 of the Statutes of
1945, to the effect that the amount of the special assessment to create the fund from which the
bonds shall be payable, may be divided into not more than twenty (20) installments, one of
which shall be collected each year * * *, is in conflict with the certain provision in said
municipal improvement bond act of 1909, Nevada Compiled Laws 1929, vol. I, section 1382,
which empowers or authorizes any incorporated town or city in the State of Nevada, whether
incorporated under a general or special act, to issue bonds of such town or city to be called
Street Improvement Bonds,' payable in annual periods of one to not more than ten years from
date * * *, and in conflict with the certain further provision of said municipal
improvement bond act, in section 13S7, N.C.L. 1929, vol.
conflict with the certain further provision of said municipal improvement bond act, in section
1387, N.C.L. 1929, vol. 1, to the effect that such bonds shall be payable in any period not
exceeding ten years * * *.
The pertinent provisions of said municipal improvement bond act, which is entitled An
Act to authorize municipalities to issue bonds for the purpose of paying the cost of municipal
improvements for which special assessments are levied, approved March 13, 1909, Nevada
Compiled Laws 1929, vol. 1, sections 1382-1389, are in sections 1382 and 1387, in said vol.
1, N.C.L., and are as follows:
Section 1382. May Issue Bonds for Street Improvements. 1. Any incorporated town or
city in the State of Nevada, whether incorporated under a general or special act, may, by
ordinance, cause to be issued bonds of the town or city to be called * * * Street Improvement
Bonds,' payable in annual periods of one to not more than ten years from date, and to bear
interest payable annually, not exceeding the rate of seven per cent per annum; * * *.
Section 1387. Assessments Paid in Installments. When. 6. * * * Such ordinance shall
fix the form of the bonds, the denominations and interest; and such bonds shall be payable in
any period not exceeding ten years, and the interest shall not exceed seven per cent per
annum.
1. While it is not expressly stated in the said special act of 1945 amending the charter, that
the provisions in said section 10.105 for dividing a special assessment into not more than
twenty annual installments is intended as an exception to the provision in the preceding
section 10.30 of such special act, to the effect that Bonds for the purpose of paying the cost
of improvements for which special assessments are levied may be issued by the city in
accordance with An act to authorize municipalities to issue bonds for the purpose of paying
the cost of municipal improvements for which special assessments are levied,' approved
March 13, 1909," it is clearly so intended.
assessments are levied,' approved March 13, 1909, it is clearly so intended.
The provision for the issuance of the bonds in accordance with the said above-entitled
act of 1909 is general and is not intended to be construed literally to mean that the entire act
of 1909, notwithstanding the express proviso in said section 10.30 and the implied exception
in section 10.105, of the amendatory act of 1945, shall be deemed adopted by the force of the
said general provision.
2. It is a well-settled rule of statutory construction that a special provision, dealing
expressly and in detail with a particular subject, is controlling, in preference to a general
provision relating only in general terms to the same subject. In sec. 367 of 50 Am. Jur., p.
371, the rule is well stated as follows:
Sec. 367. General and Specific ProvisionsIt is an old and familiar principle, closely
related to the rule that where an act contains special provisions they must be read as
exceptions to a general provision in a separate earlier or subsequent act, that where there is in
the same statute a specific provision, and also a general one which in its most comprehensive
sense would include matters embraced in the former, the particular provision must control,
and the general provision must be taken to affect only such cases within its general language
as are not within the provisions of the particular provision. Additional words of qualification
needed to harmonize a general and a prior special provision in the same statute should be
added to the general provision, rather than to the special one. * * *
In other words, in providing, in effect, by the proviso above set forth, relative to the
purposes for which the bonds of a municipality may be issued, that such improvement bonds
may be issued for any purpose for which a special assessment can be levied herein, and the
purposes for which such bonds may be issued shall not be limited to the purposes for which
special assessments can be levied under the terms of said act" {meaning the municipal
improvement bond act of 1909), it is clear that the legislature recognized the fact that the
very limited purposes for which improvement bonds could be issued under section 1 of
the said general municipal improvement bond act of 1909, N.C.L., vol.
can be levied under the terms of said act (meaning the municipal improvement bond act of
1909), it is clear that the legislature recognized the fact that the very limited purposes for
which improvement bonds could be issued under section 1 of the said general municipal
improvement bond act of 1909, N.C.L., vol. 1, sec. 1382, did not meet the legitimate needs
and requirements of the people of the city of Reno. Said section 1 of said general act of 1909,
N.C.L., vol. 1, sec. 1382, contains a statement of the purposes for which such bonds could be
issued. The pertinent portion of said section 1 is as follows:
Such bonds shall be issued for the purpose of paying the cost of laying the cement
sidewalks, paving, macadamizing or otherwise improving the streets and alleys in said town,
or city exclusive of the intersections of streets and spaces opposite alleys therein * * *.
There are certainly many legitimate public improvement wants and necessities of the
people of any modern, growing city of the character and size of the city of Reno, that are not
within the purview of this very narrow and restricted provision, which, when enacted in 1909,
might have been sufficient to meet the legitimate needs and requirements of many of the
smaller municipalities of the state.
In referring to the purposes as set forth in the amendatory act of 1945, section 10.15, Stats.
1945, p. 408, sec. 20, it is readily apparent that the powers therein set forth are
comprehensive and include very many public improvements of a kind a modern city
reasonably requires, which are not included in section 1 of the said act of 1909, N.C.L., vol.
1, sec. 1382. And, it will be remembered, said proviso in section 10.30 of the amendatory act
of 1945, Stats. 1945, p. 410, provides, in substance, that the purposes for which such
improvement bonds may be issued may be * * * any purpose for which a special assessment
can be levied herein (italics ours), which plainly means any purpose set forth in the said
amendatory act of 1945, and particularly the purposes that are enumerated in said
section 10.15, Statutes of 1945, p.
said amendatory act of 1945, and particularly the purposes that are enumerated in said section
10.15, Statutes of 1945, p. 408.
It is very apparent, therefore, that the legislature, when it passed the amendatory act of
1945, meant, by the provision that bonds for the purpose of paying the cost of improvements
for which special assessments are levied may be issued by the city in accordance with An act
to authorize municipalities to issue bonds for the purpose of paying the cost of municipal
improvements for which special assessments are levied,' approved March 13, 1909, that such
bonds may be issued generally under, or in accordance with, said general act of 1909, but that
the applicability of the provisions of said act should be general, and with the qualification or
modification above mentioned as to the purposes for which the bonds could be issued, such
qualification or, modification being expressed clearly by means of the said proviso, which
expressly provided that the purposes should not be limited to those of the general act of 1909,
N.C.L. 1929, vol. 1, sec. 1382, but should, by way of substitution, be those set forth in the
said section 10.15 of the amendatory act of 1945, Statutes of 1945, p. 408. (Italics ours.)
Equally clear is the intention of the legislature in relation to the time within which the
bonds should be payable.
The pertinent provision of said section 10.105 of the later special amendatory act of 1945
as above get forth, Stats. 1945, p. 419, is: Upon the confirmation and recording of any
assessment, the amount thereof may be divided into not more than twenty (20) installments,
one of which shall be collected each year * * *, whilst, as has been hereinbefore stated, the
provision of section 1 of the general act of 1909, N.C.L., vol. 1, sec. 1382, in relation to the
time of payment of the bonds, states, in effect, that the bonds to be issued under the act shall
be payable in annual periods of one to not more than ten years from date," and section 6 of
said general act of 1909, same being N.C.L. 1929, vol.
years from date, and section 6 of said general act of 1909, same being N.C.L. 1929, vol. 1,
sec. 1387, provides that such bonds shall be payable in any period not exceeding ten years.
While it is true that the provision of section 10.105 above mentioned, of the amendatory
act of 1945, is in relation to the installments of the special assessments, and that the
above-mentioned provisions of the general act of 1909, with which it has been above stated to
be in conflict, are in relation to the time when the bonds are payable, it cannot be reasonably
concluded that the legislature, by said section 10.105 of the act of 1945, intended to provide a
maximum period of twenty years for the assessments to create the fund from which section
10.30 of the same act requires the bonds to be paid, and yet adhere to the provisions of
sections 1 and 6 of the municipal improvement bond act of 1909 requiring the bonds to be
payable in annual periods of one to not more than ten years. To so believe, we would have
to conclude that the legislature intended to impose an unjustifiable burden upon the city. The
bonds must be paid from the special assessments, according to the requirements of section
10.30, and such construction would mean that notwithstanding that such special assessments
in the amounts to meet the bond payments may be in not more than twenty annual
installments, which means that each installment would be for approximately one-twentieth of
the amount of the bond issue, the bonds would have to be paid in not more than ten annual
installments, each of which would be required to be in an amount sufficient to pay one-tenth
of the bond issue. In other words, it would be inevitable that when the first installment
payment on the bonds became due, there would have been realized, after the first installment
of the special assessment had been paid in full, only approximately one-half of the amount
necessary to pay the first installment on the bonds. In order to prevent default, it would, in the
matter of the very first installment becoming due upon the bonds, be essential that the
deficiency be paid from the general fund of the city.
deficiency be paid from the general fund of the city. This is in no sense, intended by the
provision of section 1030, which is as follows: Such bonds shall be payable out of the fund
created by special assessment, but if such fund be insufficient to pay said bonds as they
become due, the deficiency shall be paid out of the general fund of the city. Stats. 1945, sec.
10.30, p. 410. The legislature, by this provision, manifestly did not intend to impose upon the
general taxpayers of the city the burden of paying one-half of each installment on the bond
issue. The legislature did intend that a fund should be raised by special assessment, payable in
sufficient annual installments to meet and pay the annual installments on the bonds, when
due, and only in the event of a deficiency in the amount in such fund, after such annual
installments, adequate in amount and times of payment to pay the amount of the concurrent
installments of the bonds, would the condition arise whereby payments could be made from
the general fund of the city. It is apparent that, to accomplish the essential uniformity, as
between the installments of the special assessments to provide the necessary fund, and the
installments in which the bonds must be paid, the period covered by the installment bond
payments must be equal to, or longer than, the period covered by the installments of the
special assessments.
But, as aforesaid, by the operation of the general municipal improvement bond act of
1909, the period of the installment bond payments cannot be longer than ten years, and the
period of the special assessments is fixed, by said section 10.105 of the amendatory act of
1945, at not more than twenty years. It is essential to determine whether or not the legislature,
by the later provision in section 10.105, intended to substitute the maximum period of twenty
years, as provided for the special assessments, for the maximum period of ten years, as
provided for the payment of the bonds. There is good reason to believe that the legislature did
so intend.
Bearing in mind that the purposes for which the bonds may be issued under the later act,
that is the amendatory act of 1945, include many more kinds of improvements, some of
which are more extensive and necessarily require, in the aggregate, more money than the two
kinds of improvements provided for in the general act of 1909, it is reasonable to conclude
that the economic interest and financial welfare of the property owners and taxpayers to be
affected would be better served by the twenty-year maximum period, both as to the
installments of the special assessments, and as to the installments in which the bonds are
payable, than they would be by the ten-year period. Furthermore, the bonds covering the
twenty-year period are more readily marketable to advantage than those of the ten-year
period, because they provide a more permanent and desirable investment.
It is clearly implied, therefore, from the said provisions of section 10.105 of the
amendatory act of 1945, that the legislature, by said provisions in the later act, intended, by
clear implication, to substitute the twenty-year period for the ten-year period as the maximum
of the annual periods in which the bonds should be payable. It is, therefore, clear, that in
providing that the bonds should be issued in accordance with the municipal improvement
bond act of 1909, the words in accordance with meant that, in general, the said earlier act of
1909 should serve as a basis or as a general plan for the improvement bonds authorized by the
amendatory act of 1945 (applicable only to the city of Reno), but that same should be
modified and qualified by the clearly implied exception arising from the expression of section
10.105 as to the maximum period to be covered by the installments of the bonds to be issued.
In substance, the legislature intended the provisions of the general act of 1909 to be operative
in a general sense, in conjunction with the special amendatory act of 1945, but modified or
qualified by certain well-defined exceptions, one in the form of the said proviso set forth in
said section 10.30, wherein the said amendatory act of 1945, greatly enlarged the scope
of the provisions as to the purposes for which such bonds could be issued, and the other
by virtue of the exception clearly implied from the provisions in section 10.105 of the
amendatory act of 1945, substituting the period of twenty years in lieu of ten years as the
maximum of the annual periods in which the bonds should be payable.
one in the form of the said proviso set forth in said section 10.30, wherein the said
amendatory act of 1945, greatly enlarged the scope of the provisions as to the purposes for
which such bonds could be issued, and the other by virtue of the exception clearly implied
from the provisions in section 10.105 of the amendatory act of 1945, substituting the period
of twenty years in lieu of ten years as the maximum of the annual periods in which the bonds
should be payable.
There was, technically, no reenactment by the legislature, in 1945 of the said municipal
improvement bond act of 1909, nor was the latter incorporated in the former. By virtue of the
said provision in section 10.30 of the amendatory act of 1945, that the bonds may be issued
in accordance with the municipal improvement bond act of 1909, the legislature was
merely, by reference, providing that the provisions of the latter should be generally adhered to
and followed, subject to the proviso and the implied exception above noted. The said
statement referring to the said general act of 1909 meant little except to accomplish the
changes or modifications embodied in the proviso and in the implied exception. The city was
already bound by the provisions of the general act, and the words referring to it, in the said
section 10.30, indicate, perhaps, an election to proceed under that act, rather than to adopt an
entirely new revised statute in substitution for it. The act of 1909 remained the act of 1909,
with the modifications mentioned, and, as above stated, its provisions, while referred to and,
in a sense, adopted in the amendatory act of 1945, were not re-enacted so as, technically, to
become a part of the said amendatory act of 1945.
3. Considering the provisions of the two acts, that is the municipal improvement bond act
of 1909 and the amendatory act of 1945, as to whether or not the provisions of the latter,
applicable only to the city of Reno, can operate to control or supersede the operation of the
provisions of the former with which it is in conflict, we must be guided by certain
well-established rules of statutory construction.
must be guided by certain well-established rules of statutory construction. As this court stated
in its opinion in the case of Ronnow v. City of Las Vegas, 57 Nev. 332, on page 366, 65 P. 2d
133, 146: The provisions of general and special acts must be harmonized when reasonably
possible. In support of that principle, this court cited the following cases: State v. Rogers, 10
Nev. 319, at page 321; Ex Parte Ah Pah, 34 Nev. 283, at page 292, 119 P. 770; State v.
Ducker, 35 Nev. 214, at page 224, 127 P. 990; State ex rel. Abel v. Eggers, 36 Nev. 372, at
page 381, 136 P. 100; Dotta v. Hesson, 38 Nev. 1, at page 3, 143 P. 305; Presson v. Presson,
38 Nev. 203, at pages 208, 209, 147 P. 1081; Carson City v. Board of County
Commissioners, 47 Nev. 415, at page 422, 224 P. 615; Wainwright v. Bartlett, 51 Nev. 170,
at pages 177, 178, 271 P. 689, 62 A.L.R. 78; Bishop v. Musick Plating Works, 222 Mo. App.
370, 3 S.W. 2d 256, at page 259; Franzke v. Fergus County, 76 Mont. 150, 245 P. 962, at
page 965.
4-6. And on pages 364 and 365 of 57 Nev., on page 145 of 65 P. 2d in the opinion in said
case of Ronnow v. City of Las Vegas, supra, the following principles and rules for guidance,
in determining the legislative intent in the matter of an earlier statute and a later statute
containing certain repugnant or inconsistent provisions, are stated:
A general law will not be held a be repealed or modified by implication by a subsequent
special law, unless the subsequent special act is so clearly in conflict with the existing general
law that both cannot stand. * * *
Where express terms of repeal are not used, the presumption is always against an
intention to repeal an earlier statute, unless there is such inconsistency or repugnancy between
the statutes as to preclude the presumption, or the later statute revises the whole subject
matter of the former. * * *
Where two statutes are flatly repugnant, the later, as a general rule, supplants or repeals
the earlier.
Numerous cases are cited, on pages 364-366, of 57 Nev., on page 145 of 65 P. 2d relative
to the foregoing rules, to which reference is hereby made.
For the reasons hereinbefore stated, it is shown beyond a reasonable doubt that the
legislature intended, by the effect of the provisions of sections 20 and 23 of the later
amendatory act of 1945, to substitute in the Reno charter act of 1903, as amended by the
addition of a new section to article XII to be known as section 10.30, to immediately follow
section 10.26 in said amended act, and by the addition of a further new section to be known
as section 10.15, to immediately follow section 10.10 of said amended act, an entirely new
revised statement of the purposes for which the bonds of the city could be issued, for and
instead of those stated in section 1 of the general municipal improvement bond act of 1909,
Nevada Compiled Laws 1929, vol. 1, sec. 1382. It is stated in said section 10.30, not only that
such improvement bonds may be issued for any purpose for which a special assessment can
be levied herein (undoubtedly referring particularly to the comprehensive and greatly
enlarged list of purposes embodied in section 10.15), but, also, all of the purposes stated in
the earlier general act are expressly incorporated in said section 10.15 of the amendatory act.
This would have been surplusage, and, we may reasonably infer, would not have been done
had the legislature not intended the broader and more comprehensive statement of the
purposes of the later act, in said sections 10.15 and 10.30, as incorporated in sections 20 and
23 thereof, to supersede the provisions as to purposes in said section 1 of the earlier general
act of 1909, sec. 1382, N.C.L. 1929, vol. 1.
Due to the plain repugnancy and inconsistency between the provisions in section 10.105 of
the amendatory act of 1945, as incorporated in section 37c of the Reno charter Act of 1903, as
amended, and added to article XII of said Reno charter act of 1903, as amended, immediately
following section 10.100 of said amended act, and sections 1 and 6 of the earlier general act
of 1909, as to the maximum of the annual periods in which the bonds to be issued under
both acts shall be payable, which is accentuated in view of the enlarged and more
comprehensive scope of the purposes as set forth in the later act, it was clearly the
intention of the legislature that the later provision of section 10.105 should prevail and
should supersede the earlier provisions in sections 1 and 6 of the act of 1909, both as to
the number and the maximum period of the installments of the special assessments from
which the bonds are payable, and as to the maximum of the annual installment periods in
which the bonds shall be paid.
1909, as to the maximum of the annual periods in which the bonds to be issued under both
acts shall be payable, which is accentuated in view of the enlarged and more comprehensive
scope of the purposes as set forth in the later act, it was clearly the intention of the legislature
that the later provision of section 10.105 should prevail and should supersede the earlier
provisions in sections 1 and 6 of the act of 1909, both as to the number and the maximum
period of the installments of the special assessments from which the bonds are payable, and
as to the maximum of the annual installment periods in which the bonds shall be paid.
In said case of Ronnow v. City of Las Vegas, supra, this court had a very similar situation
to consider and determine. In that case, the question involved was the validity of a proposed
bond issue for the purpose of acquiring or establishing an electric distribution system for the
city of Las Vegas. Section 6085, N.C.L. 1929, same being section 1 of an earlier general act
entitled, An Act relating to bonds issued by counties, cities, towns, school districts, and
other municipal corporations, and repealing all acts and parts of acts in conflict therewith,
approved March 23, 1927, provided that municipal bonds shall be redeemed in equal annual
installments; provided, however, that the first installment may be for a greater or a lesser
amount than the remaining installments. The city commissioners proposed a bond issue in
which the bonds to be issued would be in equal annual installments of $30,000, except the
last, which should be $40,000.
The later act of 1935, amending the charter of the city of Las Vegas, provided that the
board of city commissioners should have the power to borrow money on the credit of the
city for corporation purposes and to issue warrants and bonds therefor in such amounts and
forms and on such conditions as the board of commissioners shall determine. Stats. 1935, p.
43. The later act in 1935, amending the charter of the city made no express reference to the
said municipal bonds act of 1927.
express reference to the said municipal bonds act of 1927. This court, in its opinion in that
case, stated that the said provisions of the earlier and the later act, respectively, were so
conflicting, inconsistent, and irreconcilable that in our opinion they cannot be harmonized,
and cannot both stand. Such being the case, the special statute, being later, must prevail.
In the instant case, we adhere to the decision in Ronnow v. City of Las Vegas, supra, and
hold, as to the precise question involved, that the provision of section 10.105 of the said
amendatory act of 1945, as incorporated in section 37c thereof, and as added to article XII of
the Reno charter act of 1903, as amended, providing, in effect, that the maximum period of
the several installments of the special assessment from which the bonds shall be paid shall be
twenty years, and, by implication, that a like maximum period of twenty years shall be
applicable as to the time within which the bonds shall be paid, being a later expression of the
intention of the legislature than the conflicting provisions of sections 1 and 6 of the general
municipal improvement bond act of 1909, providing a maximum period of ten years in which
the bonds shall be paid, shall prevail, unless same is unconstitutional.
We shall now address ourselves to the determination of the constitutional question.
In its brief, the appellant has cited article IV, section 21, of the constitution of the State of
Nevada, and contends, in effect, that as to the term or duration of the bond installments, the
provisions of the general act of 1909 providing as they do, in section 1 of said act, that the
bonds shall be payable in annual periods of from one to not more than ten years, and, in
section 6 thereof, that the bonds shall be payable at any period not exceeding ten years, are
controlling, by virtue of said constitutional provision; that said general act is applicable
within the meaning of article IV, section 21, of the constitution, and that, therefore,
ordinances Nos.
733, 745, and 752 of the city of Reno, providing for a bond issue for municipal improvements
and that the bonds shall be payable in twenty annual installments, are in violation of said
constitutional provision, in that they do not conform to said ten-year limitation prescribed by
virtue of said sections 1 and 6 of said general act of 1909.
The said constitutional provision, article IV, section 21, same being section 72, Nevada
Compiled Laws of 1929, vol. 1, is as follows:
In all cases enumerated in the preceding section, and in all other cases where a general
law can be made applicable, all laws shall be general and of uniform operation throughout the
state.
Before being prohibited by constitutional provisions such as the foregoing, the legislatures
in many of the states, in the early days of statehood, had resorted to the passage of special acts
on almost every conceivable subject. Many of these subjects were of general application and
of great general importance, which required general legislation, not only to avoid individual
discrimination and injustice, but, also, to assure a system of uniform and stable law to avoid
confusion and chaos in legal administration.
Judge Dillon, in his excellent work upon the subject of municipal corporations, 5th ed.,
vol. 1, sec. 141, p. 244, has stated:
Sec. 141. Policy and Purpose of ProhibitionThe evils resulting from the unlimited
power of the legislature over municipal corporations and the habitual and constant exercise of
this power by special acts were so generally acknowledged that it was strongly felt that some
remedy ought to be provided. The remedy devised and most commonly resorted to was
provisions embodied in the later Constitutions of many of the States absolutely forbidding or
greatly restricting the passage of special acts relating to municipalities and to municipal
affairs. The scope and language of these provisions differ somewhat in the various States, but
their general purpose and policy are the same, namely, to reduce the evils of legislative
control or interference with municipalities and municipal affairs by means of special acts,
and to require such power to be exercised, if at all, by general acts.
purpose and policy are the same, namely, to reduce the evils of legislative control or
interference with municipalities and municipal affairs by means of special acts, and to require
such power to be exercised, if at all, by general acts. * * *
In footnote 1, on page 246, of the same volume, Judge Dillon quoted from Ayar's Appeal,
122 Pa. 266, 277, 16 A. 356, 360, 2 L.R.A. 577, in which Sterrett, J., stated:
During the session of the legislature immediately preceding the adoption of the present
constitution, nearly 150 local or special laws were enacted for the city of Philadelphia, more
than one-third that number for the city of Pittsburg, and for other municipal divisions of the
state about the same proportion. This was by no means exceptional. The pernicious system of
special legislation, practiced for many years before, had become so general and deep rooted,
and the evils resulting therefrom so alarming, that the people of the commonwealth
determined to apply the only remedy that promised any hope of relief. * * *
But, in the same section 141, on said page 244, Judge Dillon said:
Thirty years' experience with these general constitutional interdicts against local and
special legislation have impressed the author with the conviction that they have failed to
produce the beneficial results anticipated, and that this has been brought about largely
because the prohibitions of special legislation are too broad and sweeping. Special legislation
in some form is often necessary, and it should be allowed, but carefully safeguarded, much in
the same way or on the same principles as in the present Constitution of New York. * * *
Municipal administration is especially local in its nature, and local features peculiar to a
municipality naturally call for special legislation. In the same section 141, on page 256 of the
said volume I, the learned author has stated:
Special legislation to meet the wants, requirements and special needs of each
municipality, rather than general laws exclusively, is consonant with the fundamental
principles and policy of local self-government and home rule, and in our judgment the
true remedy is not absolutely and sweepingly to prohibit such legislation, but to
safeguard it from legislative abuse.
and special needs of each municipality, rather than general laws exclusively, is consonant with
the fundamental principles and policy of local self-government and home rule, and in our
judgment the true remedy is not absolutely and sweepingly to prohibit such legislation, but to
safeguard it from legislative abuse. Such is the plain lesson taught by thirty years'
experience.
The framers of the Nevada constitution evidently were convinced of the very impelling
reasons why, in many instances, a general law would not be adequate or suitable to meet the
peculiar local needs, wants and requirements of a particular municipality, and, therefore,
formulated and included within the constitution article VIII, section 1, Nevada Compiled
Laws, vol. 1, sec. 131, which is as follows:
Section 131. Special Act Concerning Corporations. 1. The legislature shall pass no
special act in any matter relating to corporate powers except for municipal purposes; but
corporations may be formed under general laws, and all such laws may, from time to time, be
altered or repealed.
It is apparent from the foregoing provision that the framers of the constitution sensed the
danger of allowing private corporations to be formed, or their powers to be defined, by
special laws, which often would be used, they doubtless feared, to confer special privileges
and discriminatory benefits. They, nevertheless, realized, as of equal importance, the
necessity of contributing substantially to the welfare and growth of self-governing
municipalities, by excepting corporate powers for municipal purposes from the corporate
powers in relation to which special legislative acts were prohibited. (Italics ours.)
7. It has been so well settled in this state, by numerous decisions, that special acts in
relation to the formation of municipal corporations, and relating to their powers, are
authorized by virtue of said article VIII, section 1, notwithstanding the provisions of section 8
of said article, N.C.L., vol. 1, sec. 138, to wit: "The legislature shall provide for the
organization of cities and towns by general laws and shall restrict their power of taxation,
assessment, borrowing money, contracting debts and loaning their credit, except for
procuring supplies of water; provided, however, that the legislature may, by general laws,
in the manner and to the extent therein provided, permit and authorize the electors of any
city or town to frame, adopt, and amend a charter for its own government, or to amend
any existing charter of such city or town,"
The legislature shall provide for the organization of cities and towns by general laws and
shall restrict their power of taxation, assessment, borrowing money, contracting debts and
loaning their credit, except for procuring supplies of water; provided, however, that the
legislature may, by general laws, in the manner and to the extent therein provided, permit and
authorize the electors of any city or town to frame, adopt, and amend a charter for its own
government, or to amend any existing charter of such city or town,
that an extensive discourse as to the fundamental right of the legislature to provide, by special
acts, such legislation as the local needs of such towns and cities reasonably require, is
unnecessary. City of Virginia v. Chollar-Potosi G. & S.M. Co., 2 Nev. 86; State ex rel.
Rosenstock v. Swift, 11 Nev. 128; State ex rel. Fletcher v. Ruhe, 24 Nev. 251, 52 P. 274.
8. While it is not the province of the courts to pass upon the wisdom of legislative policy,
it is their function, in Nevada, to determine whether or not a general law is applicable,
within the meaning of article IV, section 21, of the constitution.
In McQuillin on Municipal Corporations, 2d ed. (Revised), vol. 1, sec. 208, pp. 608, 609,
it is stated:
In some jurisdictions whether a general law can be made applicable is a legislative
question. In others it is a judicial one. Nevada is listed by the author as being among the
states holding that the question is a judicial one, and the following Nevada cases are cited, in
footnote 81: Evans v. Job, 8 Nev. 322; Hess v. Pegg, 7 Nev. 23; State of Nevada ex rel.
Clarke v. Irwin, 5 Nev. 111.
It is also well settled that this court has given equal weight to article IV, section 21, and has
been careful, in scrutinizing and determining the constitutional validity of legislative acts, to
ascertain whether or not the general acts brought, by litigation, within the scope of judicial
determination, are, or can be made, applicable, in the sense intended by the restriction
embodied in said section 21, commanding that In all cases enumerated in the preceding
section, and in all other cases where a general law can be made applicable, all laws shall
be general and of uniform operation throughout the state," and, impliedly, prohibiting
special legislation where a general law can be made applicable.
in the preceding section, and in all other cases where a general law can be made applicable,
all laws shall be general and of uniform operation throughout the state, and, impliedly,
prohibiting special legislation where a general law can be made applicable. In a number of
cases, in the early history of this state, as well as in later cases, this court has been called upon
to determine whether or not a particular general act can be, or, if it has been theretofore
enacted, is applicable, in a constitutional sense, in order to determine the validity of a
special act, or certain provision thereof, which conflict with it, and the validity of which has
been brought into question. State ex rel. Clarke v. Irwin, 5 Nev. 111; State ex rel. Ash v.
Parkinson, 5 Nev. 15; Estate of Sticknoth, 7 Nev. 223; Ex Parte Spinney, 10 Nev. 323; Evans
v. Job, 8 Nev. 322; State ex rel. Rosenstock v. Swift, supra; State v. Arrington, 18 Nev. 412,
418, 4 P. 735; Ex Parte Boyce, 27 Nev. 299, 75 P. 1, 65 L.R.A. 47, 1 Ann. Cas. 66; Pyramid
Land & Stock Co. v. Pierce, 30 Nev. 237, 95 P. 210; Wolf v. Humboldt County, 32 Nev. 174,
105 P. 286; Quilici v. Strosnider, 34 Nev. 9, 115 P. 177; Dotta v. Elko County Bd. of Ed., 88
Nev. 1, 143 P. 305; State v. Shaughnessy, 47 Nev. 129, 217 P. 581; In re Calvo, 50 Nev. 125,
253 P. 671; In re Lovelock Irr. Dist., 51 Nev. 215, 273 P. 983.
In some cases the subject has been developed and the meaning of section 21 of article IV
sufficiently elucidated to enable the formulation of a test, and its application to the situation
existing in the particular case.
For instance, in State ex rel. Clarke v. Irwin, supra, Justice Whitman, in the opinion, on
page 122 of said 5 Nev., furnished the following test of applicability:
But would such a general law be applicable, is always the question. A law, to be
applicable in the sense in which the words are evidently used, and their only proper sense in
such connection, must answer the just purposes of legislation; that is, best subserve the
interests of the people of the State, or such class or portion as the particular legislation is
intended to affect.
In Evans v. Job, 8 Nev. 322, on page 333, Justice Hawley, in his opinion said:
Sections 20 and 21 were doubtless incorporated into our State constitution to remedy an
evil into which it was supposed the territorial legislature had fallen in the practice of passing
local and special laws for the benefit of individuals instead of enacting laws of a general
nature for the benefit of the public welfare. These sections were intended to prohibit the
legislature from passing any local or special law in any of the cases enumerated in section 20,
and to limit the passing of other local or special laws in all other cases where a general law
would be applicable, that is to say, where a general law would be adapted to the wants of the
people, suitable to the just purposes of legislation or effect the object sought to be
accomplished.
It is evident to our mind that the framers of the constitution recognized the fact that cases
would arise in the ordinary course of legislation requiring local or special laws to be passed,
in cases where in their opinion a general law might be applicable to the general subject but
not applicable to the particular case. In other words, that a general law could not always be so
moulded as to meet the exigencies of every case not enumerated in section 20. Without this
right of discrimination the wheels of legislation would often be materially clogged and the
wants and necessities of the people liable to be hampered and the relief to which they were
otherwise entitled oftentimes necessarily delayed.
9. Applying to the instant case this criterion or test (formulated by Justice Hawley, for the
purpose of determining the applicability, under section 21 of article IV of the constitution, of
said provisions of the general municipal improvement bond act of 1909, it becomes clear that
said provisions are not adapted to the wants of the people (of the city of Reno), and are not
suitable to the just purposes of legislation nor to effect the object sought to be
accomplished.
Applying to the said general act of 1909 the test enunciated by Justice Whitman in State
ex rel.
enunciated by Justice Whitman in State ex rel. Clarke v. Irwin, supra, said general act does
not answer the just purposes of legislation; that is, best subserve the interests of the people
of the state, or such class or portion as the particular legislation is intended to affect.
We have hereinbefore pointed out the particular respects in which section 1 of said general
act of 1909, by reason of its very limited provision as to the purposes for which such
improvement bonds may be issued, and the provisions in sections 1 and 6 of said general act
of 1909, limiting the annual periods in which the bonds may be paid from one to not more
than ten years, fail, in their adequacy or sufficiency, to best subserve the interests of the
people of the city of Reno, and in which such restrictive provisions are unsuitable to effect
the objects sought to be accomplished.
In Ronnow v. City of Las Vegas, supra, which is closely in point to the instant case, and,
as before stated, involves a conflict between a general act and a special act, relative to the
issuance of improvement bonds, this court, in an exhaustive opinion by Justice Taber, held
that the provision of the special act in question was constitutional and that it superseded the
general provision involved to the extent of the conflict. We have hereinbefore sufficiently
related the facts of that case to make clear their similarity to the facts involved in the instant
case. We shall decide likewise in the instant case.
Upon the particular question involved, namely, whether or not the provisions of sections 1
and 6 of An Act to authorize municipalities to issue bonds for the purpose of paying the cost
of municipal improvements for which special assessments are levied, approved March 13,
1909, which limit to not more than ten years the total of the annual periods within which such
bonds shall be payable, are superseded by the provision in section 10.105, incorporated in
section 37c of that certain act entitled, An Act to amend an act entitled An act to
incorporate the town of Reno, in Washoe County, and defining the boundaries thereof, and
to authorize the establishment of a city government therefor, and other matters relating
thereto,' approved March 16, 1903, as amended March 13, 1905, and as amended from
time to time thereafter," approved March 26, 1945, to the effect that the amount of the
special assessment "may be divided into not more than twenty {20) installments, one of
which shall be collected each year * * *," our holding and determination is that said
provisions of the said general act of 1909 are superseded by the said provision of the
special act of 1945, and that said provision of section 10.105 of the amendatory act of
1945 is constitutional.
defining the boundaries thereof, and to authorize the establishment of a city government
therefor, and other matters relating thereto,' approved March 16, 1903, as amended March 13,
1905, and as amended from time to time thereafter, approved March 26, 1945, to the effect
that the amount of the special assessment may be divided into not more than twenty (20)
installments, one of which shall be collected each year * * *, our holding and determination
is that said provisions of the said general act of 1909 are superseded by the said provision of
the special act of 1945, and that said provision of section 10.105 of the amendatory act of
1945 is constitutional. The special act is the later act, and undoubtedly the legislature
intended that any portion thereof in conflict with the former act should prevail. The effect of
our holding is that, by virtue and as part and parcel of the implication reasonably arising from
the said provision of the special act of 1945, to the effect that such special assessment may
be divided into not more than twenty (20) installments, one of which shall be collected each
year (it being clearly implied that the legislature intended that the number of annual
installments of the special assessment to pay such improvement bonds, and the period of time
provided for the payment of such installments, and the number of installments and the total of
the annual periods in which the bonds shall be payable, should conform), that the total of the
annual periods in which the bonds shall be payable shall be not more than twenty years,
instead of not more than ten years.
Consequently, pursuant to the evident intention of the legislature, the word ten in
sections 1 and 6 of the said general act of 1909, said word ten being in line 5, section 1382,
and in line 4, p. 416, section 1387, N.C.L. 1929, vol. 1, shall be deemed inoperative and
obsolete, as to the city of Reno, and the word twenty, arising from such implication, shall
be deemed to supersede it and to be operative in its place and stead, by the force and effect of
section 10.105, as incorporated in section 37c of said amendatory act of 1945, and as
added to article XII, immediately following section 10.100 of the said charter act of the
city of Reno of 1903, as amended, and the implication clearly arising therefrom, and
which is part and parcel of said provision.
section 37c of said amendatory act of 1945, and as added to article XII, immediately
following section 10.100 of the said charter act of the city of Reno of 1903, as amended, and
the implication clearly arising therefrom, and which is part and parcel of said provision.
10. It follows that ordinances Nos. 733, 745, and 752 of the ordinances of the city of
Reno, the validity of which has been questioned by the appellant, said ordinances being in
conformity to the provisions of said amendatory act of 1945, and also in conformity to said
municipal improvement bond act of 1909, except as superseded to the extent herein held, are
constitutional and valid.
In view of the foregoing determination, we conclude and hereby decide, that the plaintiff
(appellant), in its complaint, failed to state facts sufficient to constitute a cause of action, and
that the district court ruled and decided correctly in sustaining the defendant's (respondent's)
demurrer to plaintiff's complaint, and in rendering its judgment of dismissal of the action.
The judgment of the district court is, therefore, hereby affirmed.
Ducker, J., not participating.
____________
63 Nev. 357, 357 (1946) Pine Grove Gold Mining Co. v. Freeman
PINE GROVE NEVADA GOLD MINING COMPANY, a Corporation, Appellant, v. W.J.
FREEMAN, M. FREEMAN, J.G. GOLDSWORTHY, V.A. GOLDSWORTHY, L.W.
OSBORN, Respondents.
No. 3453
July 17, 1946. 171 P.2d 366.
To excuse filing required by act providing for suspension of annual assessment work on mining
claims on filing of a desire to hold the mining claim, there must be no fraud or deceit, no intention to
abandon mining claim, good faith, and an open and honest effort to comply with the act, and excusable
neglect or omission of others to file the notice, not attributable to the claim owner. 30 U.S.C.A., sec. 28a
note.
The fact that attorney who had for years taken care of the detail affairs of mining corporation, became
seriously ill and failed to file a notice of a desire to hold mining claims under act providing for the
suspension of annual assessment work on miming claims, did not excuse corporation's failure to file the
notice, where the corporation did not make an open and honest effort to file the notice. 30 U.S.C.A., sec.
28a note.
Matters of personal misfortune, such as the illness of an individual claimant of possessory mining
claims, or of a member of his family, will not excuse such individual from the performance of annual
labor.
Neither the action of the elements nor financial disaster will excuse a claimant of possessory mining
claims from performance of annual labor, even though it may impose great hardship, rendering it
extremely difficult for him to do the work, or cause it to be done.
5. Corporations.
The ordinary duty of a director of a corporation requires him to use reasonable diligence to protect the
property of the corporation, and that duty is not fulfilled by holding aloof from intimate contact with the
local conditions existing where the property is situated, nor by infrequent communication with the local
representative.
The obligation of doing annual assessment work on mining claim is the obligation assumed by the
locator of the mining claim and the condition of his right to hold and develop the claim.
7. Trusts.
Where only the patented mining claims, improvements thereon, and improvements on the unpatented
claims were taxable, and not the unpatented claims, and defendant purchased the patented claims,
improvements thereon, and improvements on the unpatented claims at tax sale, no trust could arise in
favor of the plaintiff as to the unpatented claims.
8. Judgment.
In action to quiet title to mining claims, wherein one claim was not mentioned in the pleadings and
there was no evidence concerning that claim except the purported location notice offered and admitted at
trial, trial court erred in holding the mining claim to be a valid relocation of a portion of plaintiff's
unpatented mining ground and quieting title thereto in defendants.
A posing of question whether plaintiff forfeited its right to possessory mining claims set forth in
plaintiff's complaint because it was late in filing an affidavit of intention to hold those mining claims,
with a negative answer, operated as a broad assignment of error, perhaps sufficient to comprehend any
legal ground or reason precluding forfeiture, whether specifically pointed out or not. 30 U.S.C.A., sec.
28a note.
Even though an owner of an unpatented mining claim may fail, for a particular year, to do, or cause to
be done, required assessment work, or to file, or cause to be filed, a required notice of intention to hold
the claim for a year in which, by congressional act, requirement of assessment work has been suspended,
on condition that such notice be filed, nevertheless, to enforce a forfeiture, a qualified locator must make
a valid relocation of mining claim, by performing all acts specified by federal law and by state statutes as
necessary to constitute a valid location of such claim. 30 U.S.C.A., secs. 28 and 28a note.
In a suit to quiet title to an unpatented mining claim, one claiming to be a relocator thereof must in
order successfully to defend against quieting of title to the ground embraced in his relocation, both allege
in his answer a valid relocation of the particular ground involved and prove at the trial that he has
performed all acts essential to the making and completion of a valid relocation. 30 U.S.C.A., secs. 28 and
28a note.
Act of mining corporation in filing notice of suspension of labor and intention to hold mining claims
for a year, did not operate retroactively to invalidate relocations previously made by others while
corporation was in default for failure to file required notice for previous assessment year, but filing of the
notice had the same effect as a resumption of work would have had under like
circumstances.
notice had the same effect as a resumption of work would have had under like circumstances. 30
U.S.C.A., secs. 28 and 28a note.
If mining corporation which had defaulted by failure to file required notice of suspension of labor and
intention to hold claim for year, resumed work on mining claims, such resumption would have ended the
right of others to relocate, for the failure of the previous year, and for any prior failures, to file required
notice, and claims not theretofore relocated would have ceased to be open to relocation. 30 U.S.C.A.,
secs. 28 and 28a note.
Where mining corporation which was in default by failure to file required notice of suspension of
labor and intention to hold mining claims for year, filed notice of suspension of labor and intention to
hold on December 14, 1944, relocations of two mining claims by others on June 28, 1945, were invalid.
30 U.S.C.A., secs. 28 and 28a note.
Where no point was made on appeal by attorney for plaintiff in action to quiet title to mining claims
that relocations of certain of the claims by defendants were invalid because made when claims were not
open to relocation, the supreme court was not required to consider the point, but since trial court's
holding that the relocations were valid involved plain and fundamental error, supreme court, in its
discretion, considered the point and modified the judgment.
Appeal from First Judicial District Court, Lyon County; Clark J. Guild, Judge.
Action by the Pine Grove Nevada Gold Mining Company, a corporation, against W. J.
Freeman and others to quiet title to the patented and unpatented mining claims situated in
first mining district. From a judgment in favor of the defendants, the plaintiff appeals. Case
remanded to district court and district court ordered to modify its judgment in
accordance with opinion. District court's order denying plaintiff's motion for a new
trial affirmed.
William S. Boyle, of Reno, for Appellant.
F.H. Koehler, of Yerington, for Respondents.
OPINION
On July 10, 1945, the appellant, Pine Grove Nevada Gold Mining Company, a
corporation, commenced an action in the First judicial district court of the State of Nevada, in
and for Lyon County, to quiet the title to the patented and unpatented mining claims situated
in the Wilson Mining District, Lyon County, Nevada, enumerated and described in paragraph
I of plaintiff's complaint. We will, in this opinion, for convenience, in most instances refer to
the parties merely as plaintiff and defendants.
The plaintiff, Pine Grove Nevada Gold Mining Company, and its predecessors in interest,
Pine Grove Gold Mining Company and Pine-Delaware Mining Company, had owned said
mining claims for many years prior to the commencement of said action, had erected on the
Good Luck claim a mill for the milling and treatment of ores, and had constructed buildings,
equipped the property with machinery, and made many valuable improvements. The plaintiff
and its predecessors in interest had also expended many thousands of dollars in development
work upon the property during the years of their ownership.
On February 21, 1941, William H. Metson, acting on behalf of plaintiff's predecessor in
interest, Pine-Delaware Mining Company, made a valid millsite location of a portion of the
land comprising the Good Luck claim, upon which portion the said mill was situated, and
named same the Harriett millsite.
The defendants answered plaintiff's complaint, claiming title in themselves to all, or nearly
all, of the mining ground embraced within plaintiff's unpatented claims named in said
paragraph I of plaintiff's complaint, and to the said mill and all other improvements situated
upon such unpatented locations, basing their claim upon the alleged fact that the plaintiff had
failed to file, on or before July 1, 1944, for the assessment year 1943-1944, in the office of
the county recorder of Lyon County, Nevada, the office where the location notices or
certificates of said claims are recorded, a notice of its desire to hold said mining claims,
under the certain act, H.R. 2370, 30 U.S.C.A. sec.
before July 1, 1944, for the assessment year 1943-1944, in the office of the county recorder of
Lyon County, Nevada, the office where the location notices or certificates of said claims are
recorded, a notice of its desire to hold said mining claims, under the certain act, H.R. 2370,
30 U.S.C.A. sec. 28a note, entitled: An Act Providing for the suspension of annual
assessment work on mining claims held by location in the United States, including the
Territory of Alaska,; approved May 8, 1943, and had failed to perform any assessment work
upon said claims during or for said assessment year commencing at 12 o'clock meridian July
1, 1943, and ending at 12 o'clock meridian July 1, 1944, and that, consequently, the said
unpatented mining claims were open to relocation, and that the defendants had validly
relocated said unpatented claims, as the Protection, Protection No. 1, Protection No. 2,
Protection No. 3, and Protection No. 4.
Plaintiff filed its reply to defendant's answer, alleging the location of the Harriett millsite
upon a portion of the ground claimed by said relocations, denying that the ground embraced
within said relocations was open to relocation when the same were made, and repeating its
prayer for a decree quieting its title to all of said property as described in the complaint.
The case was tried before the district court sitting without a jury, on November 20, 1945,
and was ordered submitted on briefs.
On January 2, 1946, said district court filed its opinion and decision, in writing, holding, in
effect, that title be quieted in plaintiff corporation to all the patented claims described in
plaintiff's complaint, to the Harriett millsite and all improvements thereon situated, and to any
improvements consisting of buildings or assay houses that may be upon the so-called Good
Luck or Dump claims, together with the right of egress from, and ingress to, any buildings or
improvements of the plaintiff corporation on said claims. The opinion and decision of the
trial court further held: "that the defendants are the owners of, and entitled to the
possession of those claims known as the Protection, Protection No.
of the trial court further held: that the defendants are the owners of, and entitled to the
possession of those claims known as the Protection, Protection No. 1, Protection No. 2,
Protection No. 3, and Protection No. 4, and Little Jim, except insofar as they or any one of
them or any portion of them do not (?) cover any ground contained within the boundaries of
the Harriett Millsite claim or conflict with or overlap said Harriett Millsite, and also the
buildings and improvements owned by plaintiff company upon the former claims owned by
them known as the Good Luck and Dump claims. (Interpolation ours.)
The trial court signed findings of fact and conclusions of law, and its judgment, on the
28th day of January 1946, and the same were filed and the judgment duly entered on the 30th
day of January 1946. The court's findings, conclusions, and judgment conform to its said
opinion and decision.
The plaintiff duly moved for a new trial of said action, and, on February 2, 1946, the trial
court denied said motion. It is from that court's order denying the plaintiff's motion for a new
trial and from the judgment of said court upholding the validity of the said relocations,
namely, the Protection, Protection No. 1, Protection No. 2, Protection No. 3, Protection No. 4
and Little Jim claims, by the defendants, and the defendants' title to the mining ground
embraced therein, with the exceptions above noted, that the plaintiff has appealed.
The facts upon the basis of which the controversial legal questions involved in this case
are predicated, briefly stated, are as follows: on July 30, 1943, William S. Boyle, Esq., on
behalf of plaintiff corporation, caused to be filed in the office of the county recorder of Lyon
County, Nevada, a notice of suspension of labor and intention to hold plaintiff's eight
unpatented mining claims, being the same claims enumerated in paragraph I of plaintiff's
complaint, during the year beginning at 12 o'clock meridian July 1, 1942, and ending at 12
o'clock meridian July 1, 1943 (plaintiff's exhibit I).
The plaintiff, due to the serious illness of the said William S. Boyle, its attorney, upon
whom it had relied to file such notices, and, perhaps, also due to the death, in January 1943,
of Mr. William H. Metson, who, from his office in San Francisco, had, for years, taken care
of the detailed affairs of the plaintiff corporation, failed to file, on or before July 1, 1944, any
notice of suspension of labor and intention to hold said unpatented mining claims for the year
from 12 o'clock meridian July 1, 1943, to 12 o'clock meridian July 1, 1944, under the
provisions of H.R. 2370, approved May 3, 1943, authorizing such suspension upon the filing
of a notice such as required by said act.
On September 6, 1944, a paper purporting to be a certificate of location of the Little Jim
claim, dated the 8th day of August 1944, and signed by W.J. Freeman and L.W. Osborn, was
filed for record and recorded at the request of L.W. Osborn (defendant's exhibit 6).
On October 13, 1944, there was filed for record and recorded, in the office of the county
recorder of said Lyon County, Nevada, by Ola Goldsworthy, the following: notice of location
of protection claim, dated September 18, 1944, and signed by W.J. Freeman, L.W. Osborn,
J.G. Goldsworthy and V.A. Goldsworthy. (Defendant's exhibit 1.)
Notice of location of the Protection No. 1 claim, dated September 18, 1944, and signed by
W.J. Freeman, L.W. Osborn and J.G. Goldsworthy, Locator (defendant's exhibit 2), notice
of location of the Protection No. 2 claim, dated September 18, 1944, and signed by W.J.
Freeman, M. Freeman, J.G. Goldsworthy, V.G. Goldsworthy and L.W. Osborn, Locator
(defendant's exhibit 3).
In the early part of September 1944, and, according to the testimony, a few days prior to
the above-mentioned locations on September 18, 1944, the taxable and assessed property at
the said mine and mill was sold for delinquent taxes to the defendants, and at the time such
relocations were made, September 18, 1944, the defendants held said property subject to
plaintiff's right of redemption.
the defendants held said property subject to plaintiff's right of redemption.
On December 14, 1944, there was filed and recorded, in the office of the county recorder
of said Lyon County, Nevada, at the request of said William S. Boyle, Esq., and on behalf of
the plaintiff corporation, a notice of suspension of labor and intention to hold plaintiff's said
eight unpatented mining claims (the unpatented claims enumerated in paragraph I of
plaintiff's complaint), for the year beginning at 12 o'clock meridian July 1, 1944, and ending
at 12 o'clock meridian July 1, 1945, under the provisions of H.R. 2370, approved May 3,
1943, suspending, during said year and for the duration of the war, the requirements of annual
labor on unpatented mining claims in the United States and Alaska. (Plaintiff's exhibit J.)
On June 29, 1945, there was filed for record and recorded, in the office of the county
recorder of Lyon County, Nevada, at the request of L.W. Osborn, the following:
Notice of location of the Protection No. 3 claim, located the 28th day of June 1945 and
signed by J. G. Goldsworthy, W.T. Freeman, L.W. Osborn, Locators. (Defendant's exhibit 4.)
Notice of location of the Protection No. 4 claim, located the 28th day of June 1945, and
signed by J. G. Goldsworthy, W. Freeman, Mary Freeman, Leo Osborn, Hattie Osborn and
Ruth Jeffreys, Locator.
H.R. 2370, which operated to suspend the requirement of the assessment work for the
assessment year from July 1, 1943, to July 1, 1944, for which, as above stated, the plaintiff
failed to file the required notice, the filing of which was made, by the terms of said act, a
condition precedent to a mine claimant obtaining the benefit thereof, is as follows:
H.R. 2370 AN ACT
Providing for the suspension of annual assessment work on mining claims held by
location in the United States, including the Territory of Alaska.
work on mining claims held by location in the United States, including the Territory of
Alaska.
Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled, That the provision of section 2324 of the Revised Statutes of the
United States, which requires on each mining claim located, and until a patent has been
issued therefor, not less than $100 worth of labor to be performed or improvements
aggregating such amount to be made each year, be, and the same is hereby, suspended as to
all mining claims in the United States, including the Territory of Alaska, until the hour of 12
o'clock meridian on the 1st day of July after the cessation of hostilities in the present war as
determined by proclamation of the President or concurrent resolution of the Congress:
Provided, That every claimant of any such mining claim, in order to obtain the benefits of this
Act, shall file, or cause to be filed, in the office where the location notice or certificate is
recorded, on or before 12 o'clock meridian of July 1 for each year that this Act remains in
effect, a notice of his desire to hold said mining claim under this Act. Approved May 3,
1943.
The attorney for appellant, William S. Boyle, Esq., very earnestly contends that, in view of
his illness and the fact of Mr. Metson's death in January 1943, together with the fact that Mr.
Metson had, for many years, looked after the details of the affairs of the plaintiff corporation,
and that subsequent to his death the corporate officials at San Francisco relied entirely upon
Boyle to attend to the matter of the filing of said notices, that the plaintiff should, in the
circumstances, be excused, in equity, for the failure to file the required notice for the
assessment year commencing at 12 o'clock meridian July 1, 1943, and ending at 12 o'clock
meridian July 1, 1944, and that, consequently, the plaintiff should, in equity, be relieved
entirely from the effect of such failure to file such notice during and for the said assessment
year, and that, under and pursuant to the holding of this court in the case of Dave Donoghue,
M.J. McVeigh, and James McGuire, respondents, v. Tonopah Oriental Mining Company {a
corporation), appellant, 45 Nev. 110
of this court in the case of Dave Donoghue, M.J. McVeigh, and James McGuire, respondents,
v. Tonopah Oriental Mining Company (a corporation), appellant, 45 Nev. 110, 198 P. 553, 15
A.L.R. 957, the requirement of assessment work for said year should be deemed suspended.
Plaintiff contends, in effect, that, no forfeiture being expressly provided by said act, H.R.
2370, that upon the authority of said case, none of the mining ground within the exterior
boundaries of plaintiff's said eight unpatented claims was open to relocation on the 18th day
of September 1944, the date when defendant's relocations known as Protection, Protection
No. 1 and Protection No. 2 were made, nor on the 28th day of June 1945, the date on which
the Protection claims Nos. 3 and 4 were located, and that all of said relocations were invalid
and of no effect.
In the said case of Donoghue et al. v. Tonopah Oriental Mining Co., supra, the facts were
very different from the facts in the instant case. In the Donoghue case, the facts are well
stated by Mr. Chief Justice Sanders, in the opinion, and we quote from pages 114-116 of 45
Nev., page 554 of 198 P., as follows:
The claim in dispute is one of a group consisting of four contiguous claims, known
generally as the Homestake Group.' The history of the ground covered by the group dates
from the formation of the Tonopah mining district. The group in 1917 was owned in common
by three persons, all of whom were absent from the State of Nevada in 1918. One of the
owners died in that year. The dividing line between Nye and Esmeralda counties cut through
the group, leaving the claims partly in Nye and partly in Esmeralda county. The exact location
of the true line between these counties was a matter of doubt, speculation, and uncertainty
until after the year 1913, when the Legislature enacted a law authorizing the officials of these
counties to re-establish it. Assuming that was done, nevertheless much of the testimony in
the case shows that the dividing line, in so far as it affects the ground covered by the
group, was still a matter of doubt.
testimony in the case shows that the dividing line, in so far as it affects the ground covered by
the group, was still a matter of doubt. But one claim of the group here in controversy is in
Nye county. Much testimony was offered by the defendant to show that the owners of the
group and others were in doubt as to how the dividing line as established affected the group
and other mining ground in its vicinity.
The proof shows that in 1918 one of the owners lived at Los Angeles and the other at
Sacramento, Cal. Each wrote urgent letters, one to his friend in Tonopah and the other to his
father-in-law, also residing there, to do all that was necessary and required to be done to hold
their claims under the resolution of Congress for the year 1918. The friend of the owner living
in Sacramento prepared the required notice and presented it to the recorder of Nye county for
filing, in the month of December 1918. He was informed by the recorder that the proper place
for filing the notice was in the recorder's office of Esmeralda County, at Goldfield, Nev.
Thereupon he caused the notice to be filed in the recorder's office in said county, on or about
the 27th day of December, 1918. Relying on the representation of the recorder of Nye county
as being official and correct, he gave no further consideration to the matter, believing, of
course, that he had complied, for and on behalf of his friend, with the requirement of the
resolution of Congress.
The other owner, living in Los Angeles, wrote his father-in-law on the 10th of December,
1918, to do for him all that was necessary and required to be done under the resolution to
hold his claims, stating therein that he did not want to give them up. This was followed by
another communication, of December 20, 1918, in which he inclosed a formal notice of
desire to hold the claims in accordance with the resolution of Congress, not knowing of the
steps taken by his co-owner to hold the ground, and instructed his father-in-law to file the
notice in Tonopah, Nye county. The father-in-law was of the same opinion as the county
recorder of Nye county, that Goldfield was the proper place for the recordation of the
notice, basing his opinion upon his own experience, with the uncertainty of the
whereabouts of the true dividing line between Nye and Esmeralda Counties as it passed
through the Homestake Group and other mining locations in that vicinity; and it was his
opinion also that as the property consisted of a group of claims the notice required could
as well be filed in either county, and therefore he caused the notice to be filed in
Esmeralda county."
same opinion as the county recorder of Nye county, that Goldfield was the proper place for
the recordation of the notice, basing his opinion upon his own experience, with the
uncertainty of the whereabouts of the true dividing line between Nye and Esmeralda Counties
as it passed through the Homestake Group and other mining locations in that vicinity; and it
was his opinion also that as the property consisted of a group of claims the notice required
could as well be filed in either county, and therefore he caused the notice to be filed in
Esmeralda county.
1. Under the peculiar and extraordinary circumstances existing in that case, Chief Justice
Sanders was justified in the following conclusion in the opinion, on page 117 of said 45
Nevada Reports, on page 555 of 198 Pacific Reporter: First, there is no fraud or deceit;
second, no intention, shown by competent, clear, and satisfying proof, to abandon the claims;
third, there is good faith, and an open and honest effort to comply; and, fourth, excusable
neglect or omission of others to file the notice, not attributable to the claim owner.
The owners themselves, in the Donoghue case, made an honest effort to comply with the
requirement of the law; they did not leave the matter entirely to the recollection and ability of
some representative, without timely action on their part, but each of the surviving owners
expressly communicated, at the proper time, the one to his friend in Tonopah, the other to his
father-in-law, also residing there. The owner residing in Los Angeles communicated twice,
and the last time actually inclosed a formal notice. These owners, in the circumstances,
reasonably had the right to believe that their notice had been filed in the recorder's office of
the proper county, The fact that it was filed in the wrong county could be excused, in the
circumstances, as an honest mistake, properly relievable, in equity, to prevent forfeiture.
There was no neglect or failure to file the notice, as there is in the instant case. The mistake of
filing in the wrong county was one which, in view of the then existing facts and
circumstances, a person of normal, average intelligence, employing the care ordinarily
exercised by a person of such intelligence, would readily make.
the wrong county was one which, in view of the then existing facts and circumstances, a
person of normal, average intelligence, employing the care ordinarily exercised by a person of
such intelligence, would readily make.
Some of the reasons for the uncertainty and mistake were: 1. There was uncertainty as to
the position upon the claims of the dividing line between the counties of Nye and Esmeralda,
which passed through the group of claims. 2. The claims were contiguous and partly in the
one county and partly in the other, and a person of average intelligence, not an attorney or
mining engineer, would, we believe, be excusable in believing it proper to file for the entire
group in the county where the greater number of the claims comprising the group were
situated.
Both the reasons applied to the father-in-law of the owner, and to the friend of the other
owner, and the testimony disclosed affirmatively that the father-in-law did believe it proper to
file in Esmeralda County. In addition to those reasons, there was another reason, which
applied to the friend of the owner in Sacramento, why the mistake was one which a person of
average intelligence, using ordinary care, would make, namely, the fact that the county
recorder of Nye County informed this friend of the owner that the notice should be filed in
Esmeralda County. A miner or prospector of average intelligence, employing the care of an
ordinary, discreet, careful person, could reasonably believe that he was justified in following
the advice, upon a matter of that kind, of a county official such as a county recorder, in whose
office many sorts of papers and documents affecting the title to mining and other real
property are required to be filed. Such a mistake, if made honestly and in good faith, is one
from the effect of which equity will relieve.
In comparison, the officers and directors of the plaintiff corporation, in San Francisco, did
not do anything whatever, so far as the record discloses, to ascertain whether or not the
notice required for the assessment year 1943-1944 had been, or would be filed.
whatever, so far as the record discloses, to ascertain whether or not the notice required for the
assessment year 1943-1944 had been, or would be filed. They apparently depended absolutely
and entirely upon Mr. Boyle, their attorney, to cause it to be filed, not taking into account the
uncertainty of health nor any other uncertainty which could readily happen to any one, and
which would render him unable to act within the required time. They took no step, so far as
has been shown, to check as to this important matter, the performance of which was
absolutely necessary to the preservation of the title to the unpatented mining claims, the
actual assessment work not having been done.
2. Applying to the instant case the criterion formulated and applied by Chief Justice
Sanders, above quoted (page 117 of 45 Nevada Reports, page 555 of 198 Pacific Reporter),
we find the plaintiff corporation failed completely as to the third requirement of said
criterion, or test, in that it did not show an open and honest effort, nor any effort whatever, to
comply with the requirement of the act, H.R. 2370. And as to the fourth requirement of said
test, whilst there was excusable neglect, or omission of another (Mr. Boyle), not attributable
to the plaintiff corporation, the officers and directors of the corporation were themselves
inexcusably negligent in taking no steps whatever to supervise its own unpatented property
sufficiently to enable them to know whether or not the notice of suspension of labor and
intention to hold had been seasonably filed for the assessment year 1943-1944.
As clearly held by the authorities which have passed upon the question, it is rendered
mandatory by the plain language of the act, H.R. 2370, that every claimant of any such
mining claim, in order to obtain the benefits of this Act, shall file, or cause to be filed, in the
office where the location notice or certificate is recorded, on or before 12 o'clock meridian of
July 1 for each year that this Act remains in effect, a notice of his desire to hold said mining
claim under this Act.
Donoghue et al. v. Tonopah Oriental Mining Company (a corporation), supra, is an
exceptional case. The holding is exceptional, because the facts and circumstances of the case
were peculiarly exceptional and extraordinary. The notice filed in the recorder's office of
Esmeralda County, in which most of the claims of the group involved in that case were
situated, doubtless gave notice, at least to many persons interested in obtaining information as
to claims in that vicinity and who consulted the records of that county, that the claimants of
the claim in the adjoining county of Nye were claiming the benefits of the suspension statute.
No such facts or circumstances exist in the instant case. In the federal case of In re
Suncrest Packers, D.C., 8 F. Supp. 917, in his opinion, Judge Norcross, on pages 919 and
920, in interpreting the act approved May 15, 1934, 48 Stat. 777, which was an act similar to
H.R. 2370, approved May 3, 1943, involved in the instant case, clearly and, we believe,
correctly stated the proper interpretation of the law in regard to the filing of the notice and the
effect of the failure to file such notice, as follows:
While it is the settled law that a right in real property vests in the locator of a valid placer
location made upon the public domain, the paramount legal title remains in the United States
until patent is applied for and issued, subject to a right of possession in the locator, with the
further right to exploit the same as though vested with full title, so long as the conditions of
the mining laws requiring annual assessment work are complied with. If not complied with,
the possessory right may be terminated by the exercise of a right granted to other citizens of
the United States by the owner of the paramount titlethe government of the United
Statesby the exercise of which right the possessory right to the land in question is
transferred and that right vested in another or others. A well-understood reason lies at the
base of the mining laws of the United States. It is the policy of the national government in the
promotion of the general public interest that so much of the public domain as contains
mineral lodes or veins or mineral or nonmineral deposits, as distinguished from lands
primarily agricultural in character, should be open to development by private enterprise.
the promotion of the general public interest that so much of the public domain as contains
mineral lodes or veins or mineral or nonmineral deposits, as distinguished from lands
primarily agricultural in character, should be open to development by private enterprise. The
public interest is not only in the discovery of such lodes, veins, or deposits, but primarily in
their development.
The effect of petitioner's contention is that in the case of a locator or the owner of a
mining location adjudged a bankrupt, and his possessory right by reason thereof becoming
vested in a trustee, the provision of the statute permitting the land to be located by another or
others, on failure to do the required annual assessment work, does not apply, at least without
the authority of the court of bankruptcy. To so hold it would be necessary to read something
into the statute not in accord with its plain language. Upon occasion, as in the years 1933 and
1934, Congress by special act has suspended the provisions of the statute requiring annual
assessment work for a particular year. Such special statutes, however, have made a condition
precedent that the locator or owner file a notice of desire to hold the claim or claims. * * *
And in the case of Kramer v. Gladding, McBean & Co., 30 Cal. App. 2d 98, 85 P. 2d 552
(a case cited by defendants), the district court of appeal of the Third district of California
expressed views similar to those of Judge Norcross in Re Suncrest Packers, supra. In its per
curiam opinion, that court pointed out that the suspension of the requirement of annual
assessment work for the years 1933 and 1934 was authorized only conditionally, the
condition precedent being the filing, in accordance with the congressional resolution, for
1933 and 1934, of the notice to hold. In that case the owner of certain mining claims was in
default in the performance of his assessment work for several years, from 1930 to 1935, and
failed to file the required notice of suspension and intention to hold, under the congressional
resolution, for 1933 and 1934, but contended that, in any event, he was entitled to the
suspension of the requirement, by reason of the resolution temporarily suspending the
requirement of assessment work, upon the filing of such notice.
resolution, for 1933 and 1934, but contended that, in any event, he was entitled to the
suspension of the requirement, by reason of the resolution temporarily suspending the
requirement of assessment work, upon the filing of such notice. The court, in its opinion,
stated the following, on page 554 of 85 P.2d: The appellant asserts that Frederick H. Rindge
did not forfeit his right to the claims for nonperformance of his assessment work after 1935
for the reason that Congress adopted resolutions in 1931, 1932, 1933 and 1934, temporarily
suspending the statutory requirement of performing the assessment work on mining claims
pursuant to section 2324 of the United States Revised Statutes, 30 U.S.C.A., sec. 28, during
those current years on account of the depression which existed. We are of the opinion there is
no merit in this contention for the reason that in 1933 and 1934 the suspension of annual
assessment work on mining claims for those current years was authorized only conditionally,
and not as an absolute right. 48 U.S. Stats. p. 72, and p. 777, and 30 U.S.C.A., sec. 28a, note.
The resolutions for 1933 and 1934 both include a similar condition. The 1933 resolution
suspending for that year the necessity of performing assessment work of the value of $100 as
provided by section 2324 of the Revised Statutes of the United States contains the following
proviso: That the provision of this Act shall not apply to the case of any claimant not entitled
to exemption from the payment of a Federal income tax for the taxable year 1932: Provided
further, That every claimant of any such mining claim in order to obtain the benefits of this
Act, shall file, or cause to be filed, in the office where the location notice or certificate is
recorded, on or before 12 o'clock meridian July 1, 1933, a notice of his desire to hold said
mining claim under this Act, which notice shall state that the claimant, or claimants, were
entitled to exemption from the payment of a Federal income tax for the taxable year 1932.'
The California court, at that point, quoted from the opinion of Judge Norcross above
referred to, in Re Suncrest Packers, Inc., supra.
The California court, at that point, quoted from the opinion of Judge Norcross above
referred to, in Re Suncrest Packers, Inc., supra.
It is certain that the plaintiff in the instant case, by its neglect and failure to cause to be
filed the required notice of suspension and intention to hold, for the assessment year
commencing at 12 o'clock meridian July 1, 1943, and ending at 12 o'clock meridian July 1,
1944, deprived itself of the benefits of said act, H.R. 2370, Providing for the suspension of
annual assessment work on mining claims held by location in the United States, including the
Territory of Alaska, approved May 3, 1943. The filing of such notice was a condition
precedent to the operation of such suspension in plaintiff's favor, and such condition not
having been complied with, the suspension provided by the act was, by the very terms of the
act itself, not operative as to the plaintiff. The plaintiff was, therefore, required, the same as
though no such act had been passed, to do the assessment work for the said assessment year
of 1943-1944, unless plaintiff could bring itself within the scope of the existence of the very
limited conditions of facts and circumstances, which, the authorities generally hold, may be
the basis of excusing a claim owner from the performance of the assessment work which is
required by sec. 2324 of the Revised Statutes of the United States, 30 U.S.C.A., sec. 28.
We do not believe we could do better than to quote Mr. Lindley's treatment as to the
circumstances which will excuse the performance of the annual labor required as a condition
to continuance of the holding of an unpatented mining claim under the provisions of said sec.
2324, United States Revised Statutes.
In Lindley on Mines, 3d ed., vol. 2, pp. 1575, 1576, sec. 634, the matter is treated as
follows:
Sec. 634. Circumstances Under Which Performance of Annual Labor is
ExcusedDuring certain periods of industrial depression congress has passed special laws
suspending the provisions of the section of the Revised Statutes requiring the
performance of annual labor, upon the condition, that the claimant file with the recorder
of mining locations in the locality in which his claim was situated a declaration of
intention to hold and work the claim in good faith; but these are mere transitory acts
which have fully accomplished the object for which they were passed, and no longer
require consideration.
suspending the provisions of the section of the Revised Statutes requiring the performance of
annual labor, upon the condition, that the claimant file with the recorder of mining locations
in the locality in which his claim was situated a declaration of intention to hold and work the
claim in good faith; but these are mere transitory acts which have fully accomplished the
object for which they were passed, and no longer require consideration. The existence of
Indian hostilities in the border regionsa not infrequent occurrence in the pastwhere an
attempt to comply with the law as to annual labor would jeopardize the life of the locator,
would certainly excuse the strict fulfillment of the requirements of the law, provided, of
course, that the locator returns within a reasonable time after the cessation of such hostilities,
and resumes his efforts to represent his claim. This is but the application in a larger sense of
the rule which excuses the performance of work when the claim is in the hostile possession of
another, rendering it impossible to comply with the law without incurring risk of injury to life
or limb, or committing or inviting a breach of the peace.
A person in the peaceful and lawful occupancy of public land, for the purpose of
initiating a title, having established his right so far as he could or was permitted, acquires a
title which entitles him to the possession of the land as against all persons except the
government. When he is forcibly prevented from fulfilling the letter of the law, it will be
presumed that he would have fulfilled it if permitted so to do.
So it has been decided that where adverse possession of a mining claim is taken and held
wrongfully, the rightful owner or locator is excused from doing the assessment work during
the continuance of such adverse holding.
* * * * * * *
A locator cannot be deprived of his inchoate rights by the tortious acts of others, but there
must be a bona fide effort to perform the work.
fide effort to perform the work. The acts and hostile declarations of one asserting an adverse
right must be so serious and menacing a character as to satisfy a man of ordinary prudence
that it would be unsafe to begin work. * * *
See, also, as to what will excuse the performance of annual labor on an unpatented mining
claim, 40 C.J., pp. 833, 834, secs. 278 and 279.
3-5. So it is clear that matters of personal misfortune, such as the illness of an individual
claimant of possessory mining claims, or of a member of his family, will not excuse such
individual from the performance of annual labor. Neither will the action of the elements, nor
financial disaster, excuse him, even though it may impose great hardship, rendering it
extremely difficult for him to do the work, or cause same to be done. A poor prospector or
miner may live in a cabin in the mountains, many miles from his claim; he may be ill, and the
road to the claims, upon which the work must be performed, may be rendered impassable by
severe storms. He is not excused even under such circumstances. If he cannot go himself, he
must have the work done by another, or others. If an individual claimant is not excused under
such circumstances, it would, indeed, be strange and far from a fair, equitable, and impartial
administration of justice, if a corporation could be excused from doing the work upon its
possessory claims merely because of the illness of its attorney, upon whom its officers had
relied to have same done, and because of the indifference and failure of its officers to keep in
close touch with the corporate affairs. The ordinary duty of a director of a corporation
requires him to use reasonable diligence to protect the property of the corporation. This duty
is not fulfilled by holding aloof from intimate contact with the local conditions existing where
the property is situated, nor by infrequent communication with the local representative. If
merely ordinary diligence had been used by the directors of the plaintiff corporation, they
would have learned of the illness of their attorney, Mr.
of the plaintiff corporation, they would have learned of the illness of their attorney, Mr.
Boyle, and would have taken the necessary action, through some one else, to have the work
done.
6. The obligation of doing the annual assessment work is the obligation assumed by the
locator of a mining claim, as a condition of his right to hold and develop the claim. The
government desires the development of its mineral resources, and, instead of leasing the
property and requiring a payment of rent, requires, as compensation for the right to hold and
develop the property and extract the fruits of such development, that the claimant perform
annual assessment work. This involves labor and the expenditure of money, or its equivalent,
for supplies. It is the price the claimant pays for his right of possession and exploitation.
A tenant leasing or renting a property at a cash rental is not excused from the payment of
rent because of his illness or misfortune, except under very extraordinary circumstances. This
is true whether the tenant be an individual or a corporation. It is obvious that one holding the
possessory right to a mining claim in a position, as to the obligation to do assessment work,
as an essential condition of the right to continue in possession, which is comparable to the
position of one obligated to pay rental for the right to possession of property of another sort. It
is only a very few causes which the law, by reasons of public policy, recognizes as excusing
and relieving from the obligation of doing assessment work in a particular year. Such causes,
or reasonable excuses, do not exist in the instant case.
7. The appellant has claimed, and strongly urged in argument, that because respondents
had purchased certain of the property comprising the mine and mill, at tax sale, a few days
prior to the location of the Protection, Protection No. 1 and Protection No. 2, the respondents
became clothed with a trust in favor of appellant; that, due to appellant's right of redemption,
respondents were under the duty to hold the property in trust for the benefit of appellant,
and, upon the appellant's redemption, by paying to respondents the taxes, interest and
penalties, that the respondents were in duty bound to restore the property to appellant,
and could not, without violating such trust, acquire it by relocation and assert, as against
appellant, an adverse claim or title to the property.
were under the duty to hold the property in trust for the benefit of appellant, and, upon the
appellant's redemption, by paying to respondents the taxes, interest and penalties, that the
respondents were in duty bound to restore the property to appellant, and could not, without
violating such trust, acquire it by relocation and assert, as against appellant, an adverse claim
or title to the property. We seriously doubt whether the duty of the purchaser of mining
property at a tax sale, to hold the property for redemption by the delinquent taxpayer and
owner, and upon redemption to take the requisite steps to relinquish, to the owner or his
successor in interest, any interest he has acquired by the purchase for taxes, goes so far as to
preclude the purchaser of merely the tax lien from acquiring title to the property in any lawful
manner. Be that as it may, it is unnecessary for us to decide that question in the instant case,
for the reason that, even assuming such a trust did exist under such circumstances, it could be
deemed to extend only to the taxable property, sold at the tax sale to the respondents. Of the
property comprising said mine and mill, only the patented claims, improvements thereon, and
the improvements on the unpatented claims were taxable, and sold to defendants at such tax
sale, subject to redemption. The unpatented claims, the title to which is in controversy in the
instant case, were not taxable, nor sold for taxes to respondents. Consequently, there could be
no such trust arise as to the unpatented claims, under the laws of this state, in favor of
appellant.
8. It will be noted that the so-called Little Jim claim is not mentioned in the pleadings, nor
was there any evidence concerning it, except the purported location notice (defendant's
exhibit 6) offered and admitted at the trial. The said purported location notice appears, in the
transcript (folio 458, p. 43), to have been offered by Mr. Koehler, attorney for the defendants,
in conjunction with the location notices of the Protection relocations, and was admitted,
without objection by Mr. Boyle, attorney for the plaintiff, but no other evidence whatever
was offered, or admitted, in regard to such Little Jim location.
attorney for the plaintiff, but no other evidence whatever was offered, or admitted, in regard
to such Little Jim location. Said location, not having been alleged in the pleadings nor proven
at the trial, the inclusion thereof by the trial court in its decision, findings and conclusions and
in its judgment, holding it to be a valid location of a portion of plaintiff's unpatented mining
ground and quieting title thereto in defendants, was erroneous.
9. Whilst the appellant, in its assignment of error set forth in the opening brief, has not
specifically referred to the erroneous inclusion of the Little Jim claim with the relocations the
validity of which were upheld by the court's decision and judgment, and title to the mining
ground embraced therein held to be quieted in the respondents, the attorney for appellant, on
page 1 of appellant's opening brief, has posed this question: Did the plaintiff forfeit its right
to the possessory mining claims set forth in plaintiff's complaint because it was late in filing
an affidavit of an intention to hold these same mining claims? By posing this question and
immediately assuming the negative, in his argument, the attorney for appellant has taken the
position that there has been no forfeiture of any of the possessory claims, and that the court's
decision and judgment to the opposite effect was erroneous. This operates as a broad
assignment of error, perhaps sufficient to comprehend any legal ground or reason precluding
forfeiture, whether specifically pointed out or not. The appellant, in his opening brief, has
assigned, also, that the decision of the court is contrary to the evidence and the law.
10. Even though an owner of an unpatented mining claim may fail, for a particular year, to
do, or cause to be done, the required assessment work, or to file, or cause to be filed, a
required notice of intention to hold the claims, for a year in which, by congressional act, the
requirement of assessment work has been suspended, on condition that such notice be filed,
nevertheless, to enforce a forfeiture, a qualified locator must make a valid relocation of
such mining claim, by performing all the acts specified by the federal law and by the state
statutes as requisite and necessary to constitute a valid location of such claim.
enforce a forfeiture, a qualified locator must make a valid relocation of such mining claim, by
performing all the acts specified by the federal law and by the state statutes as requisite and
necessary to constitute a valid location of such claim.
11. In a suit to quiet title to an unpatented mining claim, one claiming to be a relocator
thereof must, of course, in order successfully to defend against the quieting of title to the
ground embraced in his relocation, both allege, in his answer, a valid relocation of the
particular ground involved, and prove at the trial that he has performed all the acts essential to
the making and completion of a valid relocation.
The applicable portion of the Revised Statutes of the United States is in section 2324, and
is as follows: On each claim located after the tenth day of May, eighteen hundred and
seventy-two, and until a patent has been issued therefor not less than one hundred dollars'
worth of labor shall be performed or improvements made during each year * * * and upon a
failure to comply with these conditions, the claim or mine upon which such failure occurred
shall be open to relocation in the same manner as if no location of the same had ever been
made, provided that the original locators, their heirs, assigns, and legal representatives, have
not resumed work upon the claim after the failure and before such location.
In Lindley on Mines, vol. 2, sec. 643, p. 1598, it is expressly stated that:
Forfeiture is not complete until someone else enters with intent to relocate the property.
(See cases cited in footnote 29, on said P. 1598, in support of the text.)
Abandonment may occur at any time, even after full compliance with the law as to
performance of annual labor. Forfeiture will only ensue upon the lapse of the statutory period,
upon failure to represent the claim, and upon entry and location by another. * * *
Forfeiture as a defense to an action must be specially pleaded * * *.
And in the same section on p. 1600, Mr. Lindley has stated: Where, however, either
abandonment or forfeiture are relied upon, the burden of proof rests with the party asserting
it.
The learned author, at this point, has cited numerous cases, in footnote 37, in support of
the text.
The authorities above cited sustain our conclusion, above stated, to the effect that, in the
absence of any pleading or proof of facts showing that the portion of plaintiff's unpatented
mining ground embraced within the exterior boundaries of the Little Jim relocation was open
to location, and that the Little Jim relocation was validly made, by performing the acts and
doing the things required by the law, the trial court's decision and judgment to the effect that
such relocation was valid and upholding the defendants' alleged title thereto, was erroneous,
and the title to said ground should have been quieted in the plaintiff corporation.
12. As above stated, the plaintiff resumed taking the necessary steps to protect its said
unpatented mining claims, by filing, on the 14th day of December 1944, in the office of the
county recorder of Lyon County, a notice of suspension of labor and intention to hold said
claims for the year commencing at 12 o'clock meridian July 1, 1944, and ending at 12 o'clock
meridian July 1, 1945, under the provisions of H.R. 2370, approved May 3, 1943. This act of
filing said notice did not operate retroactively to invalidate the relocations previously made,
while the plaintiff was in default by the failure to file the required notice for the previous
assessment year, 1943-1944, but said filing of the notice on December 14, 1944, had the same
effect as a resumption of work would have had under like circumstances.
13. If actual work had been resumed December 14, 1944, such resumption, under the
provisions of section 2324 Revised Statutes of the United States, would have ended the right
to relocate, for the failure of the previous year, and for any prior failures, and the claims not
theretofore relocated would have ceased to be open to relocation.
theretofore relocated would have ceased to be open to relocation.
A well known and frequently cited case upon the point is Feld v. Tanner, 32 Colo. 278, 75
P. 916, decided by the Supreme Court of Colorado. That case involved a situation, both as to
facts and law, similar to that in the instant case. Congress, on July 2, 1898, 30 Stat. 651
passed a law similar to H. R. 2370, approved May 3, 1943, which latter act is involved in the
instant case. The act of 1898 suspended the requirement of assessment work upon unpatented
mining claims, as to those who enlisted in the volunteer army for service in the war with
Spain. Plaintiff in that case was enlisted as a surgeon in the navy, for service in said war. He
owned mining claims in Colorado, and failed to do any work on them for 1897, and the
claims were open to relocation, commencing January 1, 1898, and continuing until December
of 1898, at which time he filed a notice to avail himself of the suspension provided by said
act of July 2, 1898. On January 1, 1899, the defendants relocated, or jumped, the claims.
The court clearly held that the relocators could not validly relocate said claims on account of
the plaintiff having failed to do the work in 1897; that the ground was open to relocation, on
account of such failure, from January 1, 1898, until the date in December 1898, upon which
the plaintiff had filed the notice of suspension, under the terms of said act of July 2, 1898, but
that on January 1, 1899, the ground had ceased to be open for relocation. The court held that
the filing of said notice in December 1898 was equivalent to a resumption of work. In that
connection, the court, in its opinion, on page 919 of 75 P., stated the following: It follows,
therefore, that, if plaintiff did fail to do his annual assessment work for the year 1897, the
claims were, nevertheless, not liable to forfeiture for such failure, because the filing of this
notice was the equivalent of resumption of full performance of the annual assessment work
for the year 1898, which, in law, saved to plaintiff all rights he ever had in the location, and
voided the forfeiture which, in the absence of resuming the work, might have resulted."
plaintiff all rights he ever had in the location, and voided the forfeiture which, in the absence
of resuming the work, might have resulted.
And in Nesbitt v. Delamar's Nevada Gold Mining Co., 24 Nev. 273, on page 283, 52 P.
609, on page 610, 77 Ann. St. Rep. 807, Mr. Justice Bonnifield, in his opinion, stated:
Evidently, it was the intention of Congress, in passing the special acts of 1893 and 1894 [28
Stats. 6, 14], suspending the requirements of section 2324 of the Revised Statutes as to the
annual labor on mining claims, that the recording of the prescribed notice should have the
same legal effect as performing the labor. See, also, 40 C.J. p. 834, supra, and, as to
resumption of work, generally, sections 289 and 290.
From the foregoing authorities, it is clear that the unpatented mining claims of plaintiff
involved in this action were open to relocation from 12 o'clock meridian July 1, 1944, to the
time of the filing of said notice of suspension of labor and intention to hold, which had the
effect of, and was equivalent to, a resumption of work, on December 14, 1944.
The Little Jim claim of respondents was located on August 8, 1944, while the said
unpatented claims of plaintiff were open to relocation, and would, insofar as it did not
conflict with the Harriet millsite, have been a valid relocation of that portion of plaintiff's
unpatented claims within its boundaries, if sufficient facts existed, and had been pleaded and
proven, to establish the performance of the necessary acts of location; but, as before stated,
such showing was not made.
The defendant's relocations, Protection, Protection No. 1, and Protection No. 2, were made
September 18, 1944, while the ground was open for relocation, and were sufficiently pleaded
and proven. The district court's judgment to the effect that the defendants are the owners, and
entitled to the possession, of the said claims, Protection, Protection No. 1, and Protection No.
2, except insofar as any portion thereof was in conflict with or included any portion of the
Harriett millsite, or the improvements, mill or buildings on said millsite, or the buildings
and improvements on the Dump and Good Lucky claims, was, we believe, correct, and has
our approval.
with or included any portion of the Harriett millsite, or the improvements, mill or buildings
on said millsite, or the buildings and improvements on the Dump and Good Lucky claims,
was, we believe, correct, and has our approval.
A different situation exists, however, as to the defendants' relocations known as Protection
No. 3 and Protection No. 4. As has been hereinbefore stated, these two relocations were not
made until June 28, 1945, more than six months after the unpatented claims of plaintiff had
ceased to be open to relocation. Plaintiff had filed its notice of suspension of labor and
intention to hold, as aforesaid, on December 14, 1944, and same had the full effect of a
resumption of work, and was for the year commencing July 1, 1944, and ending July 1, 1945.
June 28, 1945, was, of course, within that assessment year. The plaintiff's said claims would
not have been again open to relocation until July 1, 1946. They would have again become
open to relocation at 12 o'clock meridian July 1, 1946, provided no assessment work was
performed, or no improvements were made, upon or for them in the meantime, unless on or
before that date a notice of suspension for the assessment year from July 1, 1945, to July 1,
1946, were filed.
14. The relocation of the said two last mentioned claims, Protection No. 3 and Protection
No. 4, were invalid, and the title of plaintiff's unpatented mining claims lying and being
within the exterior boundaries of said Protection No. 3 and Protection No. 4 should have been
quieted within plaintiff.
It appears from the record that certain witnesses, the attorneys for both sides, and the trial
judge, were confused as to the respective dates of these various relocations, and do not appear
to have realized the significance of those dates in relation to the date of the filing of the last
notice of suspension, and as to whether or not the particular ground involved was open to
relocation when the relocations thereof were made, and, consequently, as to whether or not
such relocations were valid.
The transcript reveals that Mr. Koehler, attorney for defendants, in his direct examination
of Mr. Goldsworthy (tr. folio 457, p. 43), inquired:
Q. Now the Protection, Protection No. 1, Protection No. 2, and Protection No. 3, what are
the dates of those locations? A. September 18th.
Q. Would you say the work was started within one week of September 18, 1944?
(Referring to all the claims mentioned in the foregoing first question.) A. It was. (Tr. folio
460, p. 44.)
Farther on in the direct examination (tr. folio 470, p. 47) Mr. Koehler asked Mr.
Goldsworthy:
Q. In regard to Protection No. 3 and No. 4 when were they located? A. I think it was
about the 29th of June.
Q. Of what year? A. 1945, yes.
Mr. Boyle, upon cross-examination, did not ask Mr. Goldsworthy when the relocations
were made.
In the direct examination of Mr. Freeman, the following questions were propounded by
Mr. Koehler and answered by the witness:
Q. Are you one of the defendants in this action? A. I am.
Q. And one of the locators of the Protection, Protection No. 1, 2, 3 and 4? A. That's right.
Q. When were these claims located? A. I believeI am not positive but I think it was the
18th of September.
Q. Of the year 1944? A. 1944, that's right. (Tr. folio 499, p. 57.)
It is evident, both from the testimony of Mr. Goldsworthy and from the certified copies of
the location notices themselves, that the above testimony of Mr. Freeman as to the Protection
No. 3 and Protection No. 4 was erroneous, but no effort on the part of any one was made to
correct it by calling attention to the error, or to refute it by proper means.
Mr. Boyle asked Mr. Freeman no questions on cross-examination.
Mr. Boyle, in the findings and conclusions he evidently prepared (as they are on his
stationery), included the following: The defendants claim that their locations made on the
18th day of September, and known as the Protection, Protection No. 1, Protection No. 2,
Protection No. 3 and Protection No. 4 and Little Jim, all being placer claims except
Protection No. 1 which is a lode claim cover the same ground as a portion of the above
described unpatented mining claims and the Harriett Millsite. * * * (Tr. folio 72, p. Z-2.)
And the court, in its opinion and decision (folio 49, p. R (1), stated, as to the date of
location, the following: Defendants claim that their locations made on the 18th day of
September, 1944, and known as the Protection, Protection No. 1, Protection No. 2, Protection
No. 3 and Protection No. 4 and Little Jim, all being placer claims except Protection No. 1
which is a lode claim, cover the same ground as a portion of the above described unpatented
mining Claims and the Harriett Millsite.
But on page T(3) of said opinion and decision (folio 55), the court stated the following:
As stated above the defendants located the ground in question on the 18th day of September
1944, as to three of said claims and later on June 28, 1945, located Protection No. 3 and
Protection No. 4 and on August 8, 1945 (1944?) located the claim known as Little Jim.
(Interpolation ours.)
15. We are not surprised, in view of the confusion of counsel and some of the witnesses as
to the date of these relocations, Protection Nos. 3 and 4, that the court became confused, and
that, as the importance of the dates, in relation to the title and the validity of said two
relocations, was not pointed out to the trial judge, he did not apprehend their real
significance. No point was made by the attorney for the plaintiff that the filing of the notice of
suspension of labor and intention to hold, on December 14, 1944, was equivalent to a
resumption of work, and that the relocations known as Protection No. 3, and Protection No. 4
were invalid, having been made when the unpatented claims of plaintiff were not open to
relocation.
when the unpatented claims of plaintiff were not open to relocation. Whilst we would not be
required to consider this point, in the absence of same being specifically assigned as error and
such point not having been raised or presented in the court below, we are of the opinion that,
in the interest of justice, we should do so. We do not feel that, when the error is one which
can readily be cured, one party should be decreed the property within the said relocations,
Protection No. 3 and Protection No. 4, which rightfully belongs to another. We regard the
error as plain and fundamental. According to the weight of authority we have the right,
therefore, in the interest of true, impartial justice, and it is within our discretion, to provide
for the proper rectification of this serious and fundamental error which is clearly apparent
from the record.
Page v. Walser, 43 Nev. 422, 187 P. 509; Wynn v. Grant, 166 N.C. 39, 81 S.E. 949;
Haberly v. Farmers' Mutual Fire Relief Ass'n., 135 Or. 32, 287 P. 222, 293 P. 590, 294 P.
594; Jennings-Progress Common School Dist. No. 106 v. Marvin School Dist. No. 14, Tex.
Civ. App., 42 S.W. 2d 805; Cowart v. Miner, Tex. Civ. App., 17 S.W. 2d 1077; 4 C.J.S.
Appeal and Error, sec. 1220, p. 1721, and sec. 1239, p. 1735; Medynski v. Theiss, 36 Or. 397,
59 P. 871; 3 C.J. p. 1342, note 78, 4 C.J.S. Appeal and Error, sec. 1239; Universal Indemnity
Ins. Co. v. Tenery, 96 Colo. 10, 39 P. 2d 776; Baker v. Denver Tramway Co., 72 Colo. 233,
210 P. 845, 29 A.L.R. 1453; White v. Crandall, 105 Fla. 70, 137 So. 272, 143 So. 871; East
Coast Stores v. Cuthbert, 101 Fla. 25, 133 So. 863; Gober v. Braddock, 100 Fla. 1406, 131
So. 407; Demeter Land Co. v. Florida Public Service Co., 99 Fla. 954, 128 So. 402; Musto v.
Mitchell, 105 N.J.L. 575, 146 A. 212; Mahnken v. Meltz, 97 N.J.L. 159, 116 A. 794; In re
Roediger's Will, 209 N.C. 470, 184 S.E. 74; Wilson v. Kryger, 29 N.D. 28, 149 N.W. 721,
affirmed Kryger v. Wilson, 242 U.S. 171, 37 S. Ct. 34, 61 L. Ed. 229; Schmitt v. City of
Philadelphia, 248 Pa. 124, 93 A. 879; 3 C.J. p.
3 C.J. p. 1342, note 79, 4 C.J.S. Appeal and Error, sec. 1239; Kansas City Southern R. Co. v.
Guardian Trust Co., 240 U.S. 166, 36 S. Ct. 334, 50 L. Ed. 579; Weems v. United States, 217
U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793, 19 Ann. Cas. 705; Clyatt v. United States, 197 U.S.
207, 25 S. Ct. 429, 49 L. Ed. 726; Wiborg v. United States, 163 U.S. 632, 16 S. Ct. 1127,
1197, 41 L. Ed. 289; State v. Crooker, 123 Me. 310, 122 A. 965, 33 A.L.R. 821; State v.
Herrera, 28 N.M. 155, 207 P. 1085, 24 A.L.R. 1134; People v. Jung Hing, 212 N. Y. 393, 106
N.E. 105, Ann. Cas. 1915D, 333; State v. Griffin, 129 S.C. 200, 124 S.E. 81, 35 A.L.R. 1227;
Cappon v. O'Day, 165 Wis. 486, 162 N.W. 655, 1 A.L.R. 1657; 3 Am. Jur. secs. 247 and 248,
P. 33.
In said 3 Am. Jur., on page 35, it is stated in sec. 252: Questions Necessarily Involved in
Litigated Issues.Questions necessarily involved in issues raised and litigated in the trial
court are open for consideration on appeal or review, even though they were not specifically
raised below. Citing Arrington v. United Royalty Co., 188 Ark. 270, 65 S.W. 2d 36, 90
A.L.R. 765.
The district court's decision and judgment are correct upon the principal points and matters
involved. The judgment requires modification, but not reversal.
The judgment should be modified to the extent required to quiet title in the appellant to all
portions of the unpatented mining claims, as enumerated in paragraph I of the plaintiff's
complaint, that are within the exterior boundaries of respondents' relocations known as
Protection No. 3, Protection No. 4, and Little Jim, and said relocations, Protection No. 3,
Protection No. 4, and Little Jim, should be adjudged and decreed to be invalid.
This could be properly accomplished by amending, or modifying, the judgment of the
lower court rendered the 28th day of January 1946, in the following particulars:
Add two new sentences on page 2 of the judgment, immediately following the word
claims, in line 11, and the period {tr. folio 94, Z-7 {p.
and the period (tr. folio 94, Z-7 (p. 2), to the following effect: That title be, and it is hereby,
quieted in plaintiff corporation to all the unpatented mining claims named in paragraph I of
plaintiff's complaint, except to such of said unpatented claims, and/or such portions thereof,
not within the exterior boundaries of the Harriett Millsite as are within the exterior
boundaries of the claims located and known as Protection, Protection No. 1, and Protection
No. 2. That the title to all portions of the Harriett Millsite, in conflict with, or within the
exterior boundaries of said Protection, Protection No. 1, and Protection No. 2, or either or any
thereof, be, and is hereby ordered and adjudged quieted in plaintiff.
And from the next sentence of said judgment (tr. folio 94, Z-7 p. 2), enumerating the
claims of which the defendants are adjudged the owners and entitled to possession, the certain
claims known as Protection No. 3, Protection No. 4, and Little Jim should be stricken, and,
for the purpose of clarification, the word not, in line 15, should be stricken, and in line 17
the word except should be inserted after the word and and before the word also.
For the reasons stated, the case is hereby ordered remanded to the district court, and that
court is ordered to modify its judgment as hereinbefore indicated, and when thus modified
and such modified judgment has been duly entered, the said judgment, and the district court's
order denying plaintiff's motion for a new trial, shall stand affirmed.
Ducker, J., did not participate.
On Petition for Rehearing
August 7, 1946.
Per Curiam:
Rehearing denied.
____________
63 Nev. 390, 390 (1946) McCall v. Carlson
T.A. McCALL, Appellant, v. O.H. CARLSON and
FREDA CARLSON, Respondents.
No. 3457
August 22, 1946. 172 P.2d 171
1. Mortgages.
An equity of redemption is a final opportunity which equity affords a debtor, who has conveyed his
property for security and has defaulted and suffered foreclosure, to pay the indebtedness and such
amounts of interest and costs as win make the creditor whole and thereby save the property.
2. Mortgages.
Where mortgagor, who has conveyed his property as security for indebtedness, fails to redeem within
statutory time or such time as a court of equity validly decrees, a forfeiture results and mortgagor loses
his equitable interest in the land.
3. DeedsVendor and Purchaser.
In case of an absolute and unconditional conveyance of land, whether in payment of an antecedent
debt or for any other valuable consideration, title passes to grantee by voluntary action of grantor and
complete ownership of property passes thereby to grantee, so that, where grantor takes back from grantee
an option to repurchase and allows his right under option to lapse, he has not thereby lost or forfeited any
interest or equity in property and at most has forfeited a contractual right.
Where one agrees to sell and the other agrees to buy land, the purchaser, as distinguished from an
optionee, actually becomes vested with an equitable title to property and, in the event of his failure to
comply with terms of agreement, he forfeits his equitable title if agreement so provides.
An option is a unilateral agreement under which only optionor is bound and merely to extent to
which he has agreed by the precise terms of the agreement to be bound, and optionee has no interest in
property which optionor has agreed to sell to him and can only acquire such interest by complying with
conditions of option agreement, and upon failure to do so his contractual right to acquire an interest in the
property ceases.
6. Mortgages.
Where mortgagee released mortgagor from any obligation on mortgage note in consideration of a quit
claim deed to mortgaged premises and, along with release, mortgagee gave mortgagor an option to
purchase property back at a price equal to amount of former indebtedness plus interest and taxes that
would accrue during life of option, evidence established that option was not intended as a mortgage.
7. Mortgages.
In suit by former mortgagor for relief against termination of his rights under an option to repurchase
which was given him when he quitclaimed the land to mortgagee in discharge of mortgage indebtedness,
evidence failed to establish that consideration, consisting of antecedent indebtedness, was so grossly
inadequate that it would be inequitable to fail to relieve former mortgagor.
8. Evidence.
Little weight could be given to evidence of value of land, for there was no evidence as to market value
or that property had any certain market value and the testimony as to value was largely speculative.
9. Evidence.
Testimony of former owner as to what he paid on the average per acre, at a former time, for land in
question and other land, was of little weight as to value of particular land at an entirely different time.
Where there was a conflict in evidence as the question of adequacy or inadequacy of consideration for
conveyance, supreme court would not disturb the findings in that respect; there being substantial evidence
to support them.
11. Mortgages.
Where mortgagor quitclaimed mortgaged land to mortgagee in satisfaction of mortgage debt and
received from mortgagee an option to repurchase, right of repurchase was no different than right of
optionee in case of an ordinary option contract, and no question of forfeiture of land or of an equity of
redemption was involved when mortgagor failed to exercise option in manner required.
12. Tender.
A tender by a stranger to the contract is invalid.
Where plaintiff conveyed to defendants by quitclaim deed mortgaged premises to discharge mortgage
indebtedness and received from defendants an option to repurchase for amount of mortgage indebtedness
plus interest and taxes, plaintiff, upon exercising option, was entitled to no more than a valid quitclaim
deed duly executed and was not entitled to any additional time, beyond that specified in option, in which
to make a title search because only a quitclaim deed was tendered.
Where plaintiff conveyed property to defendants with option to repurchase, plaintiff, upon
compliance with terms of option on or before its expiration date, would be entitled to property free from
any encumbrances placed there by defendants during period of their ownership which right, however, in
absence of any provision in option as to encumbrances or additional time to determine as to them, would
not entitle plaintiff to additional time to determine whether property had been
encumbered.
additional time to determine whether property had been encumbered.
15. Contracts.
Optionor, before acceptance by optionee, is bound only to extent that he has expressly agreed to be
bound; the obligation on his part being a mere offer requiring unconditional acceptance in order that a
contract may be created.
Optionor, with reference to sale of real estate, has implied obligation to convey property to optionee
upon exercise of option free from any encumbrances arising after execution of option.
17. Evidence.
Until the contrary appears, it is presumed that a person has not placed himself in a position which
would render him unable to perform his contractual obligations.
Where, by virtue of an option agreement, an optionor agrees to sell property under terms specified
therein and optionee is to indicate his acceptance by act of payment of all or part of purchase price upon a
day stated, first payment at least must be made when due, since necessarily time is of the essence of such
a contract.
Where option agreement for sale of the land required that optionee make a specified payment on June
5 and optionors tendered required deed on June 6, at which time optionee was neither ready, able, nor
willing to make payment, optionee lost his rights under the option.
Where option agreement merely required that optionee pay optionors a specified sum on or before a
specified day, at which time optionors were required to deliver to optionee a quitclaim deed, presentation
to optionors of proposed escrow instructions under which property was to be conveyed to third person,
title was to be examined generally, a policy of title insurance was to be procured, and numerous other
conditions were required to be met before money could be paid to optionors, with no provision for
reconveyance to optionors in the event that some condition was not complied with, did not constitute a
valid tender to optionors of purchase money or a tender of performance within time limit contained in
option.
21. Contracts.
Court cannot create a new contract for the parties.
22. Equity.
Equitable powers of court do not permit the disregard of fundamental principles of law of contracts or
authorize court to force upon parties contractual obligations, terms, or conditions which they have not
voluntarily assumed.
23. Equity.
As respects contractual obligations, equity follows the law and upholds the fundamental right of
individual to complete freedom to contract or decline to do so as he conceives to be for his best interest
so long as his contract is not illegal or against public policy.
Appeal from Fifth Judicial District Court, Nye County; Wm. D. Hatton, Judge.
Action by T. A. McCall against O. H. Carlson and Freda Carlson for a determination of
plaintiff's rights in certain land and to enforce a certain option agreement. From a judgment
quieting title to land in defendants, plaintiff appeals. Affirmed.
Lowell Daniels, of Tonopah, Peter Breen, of Goldfield, and Guy Preston Greenwald, Jr.,
and A.P.G. Steffes, both of Los Angeles, California, for Appellant.
William J. Crowell, of Tonopah, and Buel R. Wood, of Los Angeles, California, for
Respondents.
OPINION
The facts as proven by the evidence and upon the basis of which the questions to be
determined on this appeal are predicated are substantially as follows:
On February 25, 1937, and prior thereto, the appellant, T. A. McCall, was the owner and in
possession of 640 acres of land in Nye County, Nevada, being the same land described in
paragraph IV of plaintiff's complaint and which is the subject matter of this action. On the
above-mentioned date, the appellant purchased some mining equipment of the respondents,
and, to secure the payment of a balance in the sum of $1,800 due upon the purchase price of
same, executed, in favor of respondent, Freda Carlson, a mortgage upon said land, to secure a
note payable on or before two years from date, with interest at six percent {6%) per
annum, payable semiannually.
a note payable on or before two years from date, with interest at six percent (6%) per annum,
payable semiannually.
McCall did not pay anything on the indebtedness secured by the mortgage, except that, in
connection with a transfer of certain equipment, at O. H. Carlson's instigation, to a man in
Arizona, McCall was credited, upon the interest, with the sum of $125.
On June 9, 1941, the principal of the indebtedness, together with interest thereon, and the
amounts of taxes which had been advanced by the respondents, was past due and remained
unpaid.
About ten days prior to said last-mentioned date. O. H. Carlson and McCall had a
conversation, in which, according to McCall's testimony, from which we quote, Carlson just
said that the mortgage was in bad shape, and that he wanted me to give him a quitclaim deed
and he would give me an option to purchase back and a lease on it and I would remain in
possession of it and so on, and I just considered it was putting it in another form.
In his further testimony, the following questions were asked, by Mr. Breen, and answers
given by Mr. McCall:
Q. What happened with reference to this mortgage, if anything, at that time? (Referring to
June 9, 1941.) A. I gave Mr. Carlson a quitclaim deed and he gave me an option to purchase
with a lease, I believe, and incidental papers. It was an arrangement he wanted to make.
Q. Just immediately prior to the execution of the deed you speak of, did you have any
conversation with either of the Carlsons with reference to the transaction? A. Yes, with Mr.
Carlson.
Q. State the place and time as near as you can remember. A. I usually talked with Mr.
Carlson at his home in the evenings. I don't recall the exact conversation, but the gist of it was
that he wanted to get the mortgage in better shape. He wanted me to give him a quitclaim
deed and take back an option to purchase with a lease.
As to the conversation at the time, or shortly before, the deed was executed by McCall and
the lease and option was executed by the Carlsons, O. H. Carlson upon being asked, by Mr.
Wood, his attorney, to relate the conversation, testified as follows:
Well, before that thing come on here, we talked it over a time or two and there was some
two or three hundred dollars taxes due and as it would cost some four hundred dollars to
foreclose, we talked it over and we decided that he would give me a deed and I would pay up
the taxes and I say there is four hundred dollars if he take up the option and if he don't take up
the option I have the four hundred, and he would pay the interest same as he had been doing.
And I told him when we made up the papers, Now, if you don't take up the option when due,
you have no land, Tex, because you never pay me and I do not want things that way. You
have to take up that option when due or you will be out, the land will be mine. There will be
no extension.' It had been dragging along too long, and he agreed on that. If I don't take up
the option,' he said, the land is yours.'
T. A. McCall, the appellant, and O. H. Carlson and Freda Carlson, the respondents, met on
June 9, 1941, by appointment, at Mrs. P. H. Harding's home, 2128 Reservoir Street, Los
Angeles, Calif. Mrs. Harding was in the insurance business and a notary public. At that time
and place, the appellant executed a quitclaim deed to said land, to O. H. Carlson and Freda
Carlson, the respondents. Said deed was dated the 9th day of June 1941, was then and there
acknowledged before P. H. Harding, notary public, and was delivered to respondents on said
June 9, 1941. A certified copy of said deed was admitted in evidence as plaintiff's exhibit
H.
Contemporaneously with the execution and delivery of said quitclaim deed, Mrs. Harding,
at the request of Mr. Carlson, wrote a receipt or release (defendant's exhibit 2), which was,
then and there, executed by respondents, Freda Carlson and O. H. Carlson, and delivered to
appellant, T. A. McCall, and is as follows: "In lieu of quitclaim deed given by T. A. McCall
to O. H. Carlson and Freda Carlson this 9th day of June, 1941, we hereby release T. A.
McCall from any further obligation on a certain note for Eighteen Hundred & noJ100
Dollars {$1S00.00), made the 25th day of February, 1937.
In lieu of quitclaim deed given by T. A. McCall to O. H. Carlson and Freda Carlson this
9th day of June, 1941, we hereby release T. A. McCall from any further obligation on a
certain note for Eighteen Hundred & no/100 Dollars ($1800.00), made the 25th day of
February, 1937.
Signed Freda Carlson
O. H. Carlson
On the same occasion, when said parties were present at Mrs. Harding's, a document
entitled, Lease and Option to Purchase was signed by O. H. Carlson, Freda Carlson, and T.
A. McCall, and was then and there acknowledged by said parties before Mrs. Harding, notary
public. Said document was admitted in evidence as plaintiff's exhibit I, and that portion
thereof constituting such Option to Purchase is as follows:
In consideration of the sum of Three Dollars ($3.00) receipt of which is hereby
acknowledged, Lessors agree that at any time during the term of this lease Lessee may
purchase the above described property and Lessors agree to sell said property to Lessee for
the sum of Two Thousand Two Hundred and Ninety Dollars ($2,290.00) and interest to date
of payment, plus whatever taxes levied and assessed upon said property were paid by the
Lessors. If the Lessee's option is exercised, the total of said purchase price shall be paid on or
before December 5, 1942, in the following manner:
Lessee shall pay to Lessors, on or before June 5, 1942, the sum of One Thousand One
Hundred and Forty-Five Dollars, ($1,145.00), at Six Per Cent (5%) per annum from the date
of this lease and interest to the date on which said payment is made, plus whatever taxes
levied and assessed upon said property were paid by the Lessors; and the balance of said
purchase price shall be paid on or before December 5, 1942.
If Lessee fails to pay the above installments, or either of them promptly, when the same
becomes due, this lease and option shall immediately terminate and becomes void and in the
event of the refusal or failure of the said Lessee to surrender and deliver up immediate
possession of the said real property upon the termination of said lease and option, and it
should become necessary to institute a suit or action for the immediate possession of said
real property, or to terminate said lease and option, then and in the event the said
Lessees agree to pay unto the said Lessors such sum as the Court shall adjudge
reasonable as attorney's fee in said suit or action.
becomes void and in the event of the refusal or failure of the said Lessee to surrender and
deliver up immediate possession of the said real property upon the termination of said lease
and option, and it should become necessary to institute a suit or action for the immediate
possession of said real property, or to terminate said lease and option, then and in the event
the said Lessees agree to pay unto the said Lessors such sum as the Court shall adjudge
reasonable as attorney's fee in said suit or action.
All of the terms and provisions of this lease and option shall be binding upon the parties
hereto, their heirs, successors and assigns.
In witness whereof, the parties hereto have hereunto set their hands the day and year first
above mentioned.
It appears from the testimony of the appellant that in May 1942, and shortly prior to the
time when the first installment of $1,145, by the terms of the option, would become due, on
June 5, 1942, appellant had a conversation with respondent, O. H. Carlson. In that
connection, appellant testified as follows:
I told Mr. Carlson, I told him I had some money coming in in which case I wanted to
clean it up and if I did not have I had arranged to borrow the money to pay on it. In which
case I wanted to put it through escrow; in any case I wanted to put it through escrow. I wanted
to know at that time if he was agreeable to such an arrangement. He said he was, that he
wanted to do anything to help, that he wanted the money, not the land. He said he wouldn't
pay any attention to the due date, and I said I wanted to pay it all off and all I wanted to know
was that he hadn't encumbered the title and that is why I wanted to put it in escrow. And it
was put in escrow later. That is the gist of my conversations with Mr. Carlson, and then, I
think I told him that we would be ready to go to escrow in a day or two, or a few days, and I
think on, along about, I am recalling it from memory, and basing it on the date of a letter from
Mr.
Walden, and I think on May 2nd I phoned and asked if he would be ready to go to escrow in
the morning, and Mrs. Carlson answered the phone and informed me that Mr. Carlson had
been called out of town suddenly and would be gone possibly a week or ten days and that he
had appointed an attorney to take care of the matter, and she gave me the attorney's address, a
Mr. Walden * * *
After learning from Mrs. Carlson that Mr. Carlson was out of town, and being referred, by
her, to Mr. Walden, their attorney, the appellant went to Mr. Walden's office, introduced
himself, and (according to appellant's testimony) asked Walden to go to escrow with him.
Walden informed appellant that he did not have any authority to go to escrow. The appellant
asked Walden to write a letter to Salisbury, which Walden did.
Said letter was dated May 23, 1942, was admitted in evidence, and was as follows:
Dear Sir:
Mr. McCall is in my office Re: Carlson escrow, but I have just told him that I have no
authority to enter into any escrow, but this is how the matter stands with me: Mr. Carlson said
Tell the boys to put up their money and I will be in later and complete the transaction.' I am
sorry that I cannot do more to help you, but I cannot act without some authorization.
Very truly,
Frank W. Walden.
On June 1, 1942, an escrow was opened with Title Guarantee & Trust Company, Los
Angeles, California. Stuart M. Salisbury, a witness for plaintiff, testified that he, Salisbury,
deposited with said title company, in said escrow, $3,000, in the name of C. M. Gregg; that
half of the money was his, Salisbury's. It appears that Gregg and Salisbury had a transaction
pending with the appellant, T. A. McCall, in which they had agreed to loan McCall $4,048.17
and take a note therefor, secured by a deed of trust upon the said Nye County, Nevada,
property, and other property, provided their requirements as to title, etc., were complied
with. And it appears, from the escrow instructions, that when such conditions were met
the Title Guarantee & Trust Company was authorized to pay respondents, O. H. and Freda
Carlson, the sum of $2,290, plus the amounts due respondents for interest and
advancements in payment of taxes; that is to say, the amounts provided by the lease and
option agreement to be paid respondents if the appellant exercised his option to purchase
the Nevada property.
deed of trust upon the said Nye County, Nevada, property, and other property, provided their
requirements as to title, etc., were complied with. And it appears, from the escrow
instructions, that when such conditions were met the Title Guarantee & Trust Company was
authorized to pay respondents, O. H. and Freda Carlson, the sum of $2,290, plus the amounts
due respondents for interest and advancements in payment of taxes; that is to say, the
amounts provided by the lease and option agreement to be paid respondents if the appellant
exercised his option to purchase the Nevada property.
The escrow opened June 1, 1942, was thus a three-way escrow and related, also, to
property other than the said Nevada property, said other property being included in the
transaction between Gregg and Salisbury, on the one hand, and McCall, on the other.
The escrow instructions disclose several conditions precedent to the right of the escrow
holder to pay the amounts to the Carlson's provided by the option.
E. H. Booth, Jr., vice president of Title Insurance & Trust Company (successor in interest,
in the matter of said escrow, to Title Guarantee & Trust Company), in response to questions
by Mr. Greenwald, testified concerning these conditions, as follows:
If I understand your question correctly, the instructions here provide that we can use the
money when we can issue a policy or obtain a policy of Title Insurance from the Pioneer Title
Insurance & Trust Company showing title to certain property in Nye County, Nevada, which
is specifically described in the escrow instructions, vested in T. A. McCall, a married man,
subject to taxes, covenants, conditions, restrictions, reservations, easements, rights of way of
record, all of which are subject to Mr. McCall's approval, such as other conditional
encumbrances as he might approve, and a trust deed to be filed for record securing a note for
$4,040.17.
In response to a further question from Mr. Greenwald, Mr. Booth said it was to be a
three-way escrow.
It appears from the escrow instructions and from Booth's testimony that the following
conditions had to be met before the purchase money for the Nye County, Nevada, property
could be used, that is, delivered to the respondents:
Such instruments would have to be procured by the escrow holder as would enable it to
procure, in turn, from Pioneer Title Insurance & Trust Company a joint protection policy of
title insurance in the usual form, with the liability limited to $4,000, covering the Nye County
property, showing title to said property vested in T. A. McCall, subject to taxes, covenants,
conditions, restrictions, and reservations, also all encumbrances upon the property as shown
in the policy, all of which were subject to Mr. McCall's approval, and a trust deed to be filed
for record, securing a note for $4,048.17 (this amount is stated in the escrow instructions; the
amount according to the record of Mr. Booth's testimony is $4,040.17).
Therefore, it would be necessary for the escrow holder, before paying any money to
respondents, to have the following:
1. A report on the title, sufficient to enable it to procure from Pioneer Title Insurance &
Trust Company the requested policy of title insurance.
2. A deed from O. H. Carlson and Freda Carlson to T. A. McCall, of said Nye County,
Nevada, property, delivered and recorded, in order to show title vested in T. A. McCall, as
required.
3. Approval of McCall as to any and all covenants, restrictions, reservations, easements,
rights of way of record, and as to all encumbrances upon the property.
4. A trust deed from McCall, duly executed.
O. H. Carlson testified, with respect to the note secured by the mortgage, that, subsequent
to execution of the receipt or release, on June 9, 1941, he went to the bank, got the note out of
the vault, and wrote across the whole note, Paid in full, and mailed it to McCall.
The latter testified he never received the cancelled note, but acknowledged having received
the receipt or release, and said same had been placed with his attorney.
On June 3, 1942, the Title Guarantee & Trust Company addressed a letter to Mr. Carlson,
which was as follows:
Escrow Department June 3, 1942
Re: McCall Special Delivery
Mr. O. H. Carlson
2436 Echo Park Avenue
Los Angeles, California
Dear Mr. Carlson:
This is to advise you that escrow instructions have been prepared at the request of Mr.
T.A. McCall covering a sale of certain property located in Nye County, Nevada, from
yourself to him, for a consideration of $2719.45, plus interest on various amounts advanced
by you to date of close of escrow.
The escrow instructions are dated June 1, 1942, and sufficient money has been deposited
on June 1, 1942, in this escrow to comply with the instructions given by Mr. McCall. We,
therefore, suggest that you stop at this office at your convenience to read and sign, if
satisfactory, the escrow instructions which we have prepared and which are signed by Mr.
T.A. McCall.
Very truly yours,
C.B. Crawford
Escrow Department.
CBC: JT
CC: Mr. Frank W. Walden
CC: Mr. T.A. McCall
Carlson in his testimony, admitted the receipt of said letter, and testified, in part, as
follows:
Well, Mr. Walden, the attorney, he drew up a quitclaim deed from my wife and myself to
Mr. McCall and acknowledged it on the 5th day of June. It was due, and the 6th Mr. Walden
and I went down to the Title Company and told them we had a quitclaim deed and he could
pay half or the whole.
Company and told them we had a quitclaim deed and he could pay half or the whole. If he
give all we give him the deed and if he give half we give him a receipt. He said, We have no
money to give you. We have an escrow if you want to sign it,' he said. Mr. Walden says then,
Do not sign no escrow. Do not sign anything. It is up to them to give you the money on this
option.' Mr. Walden was with me. Mr. Walden was the one who told the Title Company and
he told me he would have to pay off on the option, and provided he give all the money we
would give him the deed.
The quitclaim deed drawn by Mr. Walden, and referred to by the respondent, Carlson, in
his foregoing testimony, was admitted in evidence as defendant's exhibit 5, and is in words
and figures as follows:
Quit Claim Deed
In consideration of Ten Dollars ($10.00) receipt of which is hereby acknowledged, the
undersigned, O. H. Carlson and Freda Carlson, husband and wife, do hereby quitclaim unto
T.A. McCall all their right, title and interest in and to all that real property in the County of
Nye, State of Nevada, described as (description of property)
Witness our hands this 5th day of June, 1942
O.H. Carlson
Freda Carlson.
(Acknowledgment by respondents before Frank W. Walden, notary public, on June 5, 1942.)
The appellant acknowledged having received, shortly after June 18, 1942, from the
respondents, a document entitled Notice of Cancelation of LeaseWithdrawal of Option to
Purchase, and Demand for Possession. This document noticed McCall that the said lease and
option to purchase was cancelled and withdrawn, due to his failure to exercise said option
within the time and in the manner prescribed therein, and made demand for possession of the
said land situated in Nye County, Nevada, describing it therein.
Nevada, describing it therein. The said document was dated the 18th day of June, 1942, and
was signed by O.H. Carlson and Freda Carlson.
On July 18, 1942, the appellant commenced this action, in the district court of the Fifth
judicial district of the State of Nevada, in and for the county of Nye. It is a suit in equity, and
the plaintiff (appellant herein), in his complaint, alleged, that the plaintiff is ready to pay to
said defendants, O.H. Carlson and Freda Carlson, whatever may be justly due on said loan
and hereby offers to bring the money into Court for that purpose.
In the prayer of his complaint, appellant, among other things, prays that an account may
be taken of the amount due said defendants, and that upon the payment by plaintiff of the
amount so found due, said defendants be required to reconvey said premises to the plaintiff *
* *. The plaintiff prayed, also, for general relief.
Issue was joined by the pleadings, and the case was tried by the court, sitting without a
jury, commencing April 9, 1945.
Thereafter, on the 16th day of May, 1945, the said district court, the Honorable Wm. D.
Hatton, District Judge, rendered and filed its decision in favor of defendants (respondents)
and against plaintiff (appellant), on the plaintiff's alleged causes of action, and in favor of
respondents in their cross action, wherein they sought to quiet their title to the land in
question. On June 26, 1945, the said district court made and filed that court's findings of fact
and conclusions of law.
In its findings and conclusions, the court found and concluded, among other things, as
follows:
Findings of Fact
* * * * * * *
IV. That it is true that the amounts agreed to be paid in said lease and option to purchase
were not paid in the manner and according to the terms agreed upon, or at all.
V. That it is not true that plaintiff, T.A. McCall, made a due and timely tender of the
amount or amounts according to the terms of said option, or at all.
made a due and timely tender of the amount or amounts according to the terms of said option,
or at all.
VI. That it is not true that to evidence said mortgage, and in lieu thereof, plaintiff, T.A.
McCall, executed and delivered to the defendants the quitclaim deed designated, Exhibit 2'
attached to said complaint, but it is true that said quitclaim deed was executed and delivered
by the plaintiff, T.A. McCall, and accepted by the defendants and cross-complainants in full
and complete settlement of the debt secured by said mortgage, and it is further true that in the
execution delivery and acceptance of said quitclaim deed the indebtedness evidenced by said
mortgage was wholly discharged and liquidated.
VII. That it is true that the defendants and cross-complainants, O.H. Carlson and Freda
Carlson, from and after June 5, 1941, have been the owners of said lands and premises.
* * * * * * *
Conclusions of Law
As a Conclusion of Law from the foregoing facts the court finds that the defendant and
cross-complainants are the owners of and entitled to the possession of the lands and premises
described and fully set out in the complaint and cross-complaint on file herein.
On said June 26, 1945, judgment quieting title to said land in respondents was rendered by
said court, and duly entered.
The appellant, in due time, moved the court for a new trial, on the grounds of the
insufficiency of the evidence to justify the decision of the court and that the said decision is
against law, and the said motion was denied.
The appeal to this court is from the said judgment and the order denying appellant's motion
for a new trial.
Two assignments of error are presented by appellant:
1. The evidence is insufficient to support the court's finding that appellant did not make a
due and timely tender of the amount or amounts according to the terms of respondent's
agreement to sell the lands in question to him, and that said finding is contrary to the
uncontradicted evidence in the case.
of respondent's agreement to sell the lands in question to him, and that said finding is contrary
to the uncontradicted evidence in the case.
2. That the decision and judgment of the court are against law.
It appears, from appellant's assignments of error, that he relies entirely upon the
sufficiency and the timeliness of the alleged tender, by the deposit of $3,000 with the Title
Guarantee & Trust Company, by Messrs. Salisbury and Gregg, to sustain his contention that
equity should intervene and permit him to carry through to completion the repurchase of the
said lands.
That the appellant intended to abandon the position he had advanced in the district court,
that the quitclaim deed from appellant to O.H. Carlson and Freda Carlson was intended
merely as a continuation, in a different form, of security for the indebtedness, and, therefore,
was an equitable mortgage, appears from the following statement on page 3 of appellant's
opening brief:
In his complaint (Tr. vol. II, pp. 94-105, folios 1-34), appellant alleged, and at the trial
contended, that this quitclaim deed from appellant to respondents was in fact an equitable
mortgage. The trial court, however, decided this question adversely to the contentions of
appellant. We are not, on this appeal, urging that the trial court incorrectly decided this issue,
and for that reason we shall adopt such theories in our discussion here as are consistent with
the court's findings of fact and conclusions of law on this point.
Whilst appellant has doubtless endeavored, in his argument, to adhere consistently to his
foregoing statement of purpose, which clearly means that he would no longer contend that
said deed was for security only, and was, in effect, an equitable mortgage, appellant,
nevertheless, in his brief, has advanced theories and made statements contending against
forfeiture and for a construction of his rights under the option as being more in the nature of
an equity of redemption than a bare option right of purchase according to its terms, that
could be sustained only upon the theory of the continuation of the mortgage relationship
between appellant and respondent.
option right of purchase according to its terms, that could be sustained only upon the theory
of the continuation of the mortgage relationship between appellant and respondent.
For instance, on page 23 of his opening brief, appellant's attorneys have stated:
The legal maxim that equity abhors a forfeiture' hardly needs the citation of any
authority. This is not a case where an optionee had acquired an option to purchase property
which he never owned. Here, the situation is more analogous to a case where a landowner,
after a foreclosure, has an equity of redemption. * * *
That the appellant is still adhering to the theory of equitable mortgage is further
manifested by the statement on page 7 of his closing brief, as follows:
The case at bar does not, therefor, fall within the option cases, such as the case of
Bourdieu v. Baker, [infra]. It falls within the class of cases where the owner of property is
attempting to avoid a forfeiture of his property. * * *
The appellant's attitude in this respect impels us to pass upon the question of whether or
not the quitclaim deed executed June 9, 1941, conveying said property from appellant to
respondents, was intended as an absolute conveyance in consideration and payment of the
antecedent indebtedness, or whether the parties merely placed the matter in a different form,
and intended the indebtedness to continue and the title conveyed by the quitclaim deed to be
held by respondents merely for security, as the mortgage had been.
1, 2. It is necessary to pass upon this fundamental question, in order to dispose of
appellant's said contention, for the reason that, unless the indebtedness continued and the
deed was, in its nature, a mortgage and intended merely for security, there could be no
question, upon this appeal, as to equity of redemption or forfeiture of the land involved. An
equity of redemption is a final opportunity which equity affords a debtor who has conveyed
his property for security, and has defaulted and suffered foreclosure, to pay the
indebtedness and such amounts of interest and costs as will make the creditor whole, and
thereby save his property.
suffered foreclosure, to pay the indebtedness and such amounts of interest and costs as will
make the creditor whole, and thereby save his property. In such case there has been no
intention to part with the property at any time, and the relationship is one of mortgagor and
mortgagee. In such case, if a mortgagor fails to redeem within the statutory time, or such time
as a court of equity validly decrees, a forfeiture results, and he loses his equitable interest in
the land.
3. In case of an absolute and unconditional conveyance of the property, whether in
payment of an antecedent debt, or for any other valuable consideration, the title passes to the
grantee, by the voluntary action of the grantor, and the full and complete ownership of the
property passes, thereby, to the grantee. If as part of the transaction, the grantor takes back
from the grantee an option to repurchase, upon certain specified terms and conditions, and
fails to comply with such terms and conditions and allows his right under the option to lapse,
he has not, thereby, lost or forfeited any interest or equity in the property. By virtue of his
conveyance, he has voluntarily parted with all of his interest in the property, and he has no
interest left which could be the subject of forfeiture. At most, by his failure to comply with
the terms and conditions of the option to reacquire the property, he might be deemed to have
forfeited his contract rights under the option; at least, he has permitted same to lapse.
4, 5. A different situation exists in the case of an agreement whereby the first party agrees
to sell, and the second party agrees to buy, land (italics ours.) In this latter case, the vendee,
as distinguished from the optionee, actually becomes vested with the equitable title to the
property, and in the event of his failure to comply with the terms of the agreement he forfeits
his equitable title, if the agreement so provides. But an option is merely unilateral. Only the
optionor is bound, and merely to the extent to which he has agreed, by the precise terms of
the agreement, to be bound. The optionee has no interest in the property which the
optionor has agreed to sell to him, and can only acquire such interest by complying with
the terms and conditions of the agreement.
optionee has no interest in the property which the optionor has agreed to sell to him, and can
only acquire such interest by complying with the terms and conditions of the agreement. If he
fails to do so, his contractual right to acquire an interest in the property, by complying with
the terms and conditions of the agreement, ceases. He has forfeited, if anything, only his
contractual right, but, as above stated, no interest in the property.
In the instant case, in order to determine the intention of the parties, we must look to the
surrounding facts and circumstances.
The mortgage had been in effect since February 25, 1937more than four yearswhen
the parties met in the latter part of May, and, again, early in June, 1941, to discuss the matter.
6. Mr. Carlson, according to the testimony of Mr. McCall, said, in substance, that the
mortgage situation was in bad shape, that he wished to get matters in better shape; that taxes
were due, and if he foreclosed, there would be a further expense of foreclosure of about $400;
that if McCall would deed the property to respondents, respondents would give him back a
lease and option, and if he took the property back, he, McCall, would save the $400, and if
not, the respondents would save that much; Carlson complained to McCall that he did not pay
anything, even the interest and taxes, and said, in effect, he did not like that, and wanted the
matter settled. McCall consented to deed the property. The respondents and the appellant met
at the home of Mrs. Harding, in Los Angeles, California, June 9, 1941, to execute the
necessary papers and close the transaction according to the understanding reached. Mrs.
Harding was requested to prepare a paper in the nature of a receipt or a release of the
indebtedness for which the mortgage was security. It has, hereinbefore, been set forth in full.
It plainly provided that in lieu (meaning in consideration) of quitclaim deed given by
T.A. McCall to O.H. Carlson and Freda Carlson, the 9th day of June, 1941, we hereby
release T. A. McCall from any further obligation on a certain note for Eighteen Hundred &
noJ100 Dollars {$1S00.00), made the 25th day of February, 1937."
hereby release T. A. McCall from any further obligation on a certain note for Eighteen
Hundred & no/100 Dollars ($1800.00), made the 25th day of February, 1937. This
instrument clearly discloses that the parties thereby, and by means of the quitclaim deed
therein mentioned, intended that, in payment or settlement in full of the indebtedness
evidenced by the note, which was secured by the mortgage, McCall was conveying the
property to respondents. McCall received the lease and option to purchase, which it was
agreed he should have. He no longer was obligated to the Carlsons, to any extent. He owed
them nothing. He did not agree, by taking the option, to pay them any money whatever. He
merely had the option to buy the property back at a purchase price equal in amount to the
former indebtedness plus the interest and taxes that would accrue during the life of the option.
If the parties had not intended this transaction to be what it clearly appears to be, from the
papers and documents, their statements and the circumstances, but had intended the mortgage
indebtedness to continue, they would certainly not have arranged for the deed from McCall to
the Carlsons. There would have been nothing to be gained by it, as the Carlsons already had
the mortgage. It would have been merely a futile ceremony, by which the Carlsons would
have been continued in the mortgage relationship, with which they were dissatisfied. And,
certainly, if they were not obtaining title to the property, but a mere mortgage, as they had
before, they would not have released the mortgage indebtedness nor have sent McCall his
cancelled note. McCall doubtless fully believed that within the year he had in which to make
the first payment to repurchase the property, under the option, he would be able to do so, and
was willing to rely upon his right to repurchase, under the option. The lease allowed him to
remain in possession of the property.
Mr. Pomeroy, the great authority upon subjects relating to equity, in Pomeroy's Equity
Jurisprudence, 5th ed., vol. 4, sec. 1195, pp. 575-579, has well stated the criterion and
explained its application as a test of whether a particular transaction is a mortgage or a
conditional sale with the right of repurchase, in the following language:
criterion and explained its application as a test of whether a particular transaction is a
mortgage or a conditional sale with the right of repurchase, in the following language:
Sec. 1195. The General Criterion: The Continued Existence of a DebtWhether any
particular transaction does thus amount to a mortgage or to a sale with a contract of
repurchase must, to a large extent, depend upon its own special circumstances; for the
question finally turns, in all cases, upon the real intention of the parties as shown upon the
face of the writings, or as disclosed by extrinsic evidence. A general criterion, however, has
been established by an overwhelming consensus of authorities, which furnishes a sufficient
test in the great majority of cases; and whenever the application of this test still leaves a
doubt, the American courts, from obvious motives of policy, have generally leaned in favor of
the mortgage. This criterion is the continued existence of a debt or liability between the
parties, so that the conveyance is in reality intended as a security for the debt or indemnity
against the liability. If there is an indebtedness or liability between the parties, either a debt
existing prior to the conveyance, or a debt arising from a loan made at the time of the
conveyance, or from any other cause, and this debt is still left subsisting, not being discharged
or satisfied by the conveyance, but the grantor is regarded as still owing and bound to pay it at
some future time, so that the payment stipulated for in the agreement to reconvey is in reality
the payment of this existing debt, then the whole transaction amounts to a mortgage, whatever
language the parties may have used, and whatever stipulations they may have inserted in the
instruments. On the contrary, if no such relation whatsoever of debtor and creditor is left
subsisting, then the transaction is not a mortgage, but a mere sale and contract of repurchase.
The practical test is whether there is a liability, notwithstanding or independent of the
conveyance and contract of reconveyance, which the grantee can enforce against the grantor.
against the grantor. If a loan is made to the grantor at the time of executing the conveyance,
and the continued existence of his indebtedness therefor is evidenced by some collateral
engagement given by the grantor, such as a note or bond, the case is simple and the
transaction is clearly a mortgage. In the second place, if the conveyance is given in
consideration of an antecedent debt due from the grantor, and this debt yet remains, so that
the grantee may enforce his claim at some time or another against the grantor, the transaction
is also a mortgage. But if this antecedent debt is wholly satisfied and extinguished by the
conveyance, so that no liability remains under any circumstances against the grantor, then
there is no mortgage, since there is no debt to be secured thereby. In such a case the surrender
up by the grantee of the written evidences of original indebtedness, or his cancellation
thereof, would be very material circumstances. Thirdly, there may be neither a present loan
nor an antecedent debt, but the grantee may undertake to assume some outstanding liability of
the grantor, or to pay off some claim against the grantor, so that an obligation to reimburse
him would rest upon the grantor, and the conveyance may be intended to indemnify the
grantee and to secure the performance of the grantor's future continuing obligation, in which
case it would clearly be a mortgage.
The case of Tripler v. Campbell, 22 R.I. 262, 47 A. 385, is a case in many respects similar
to the instant case, particularly in the fact that in Tripler v. Campbell a deed containing an
agreement of defeasance, which was clearly a mortgage, had been given, the money due was
unpaid, and the complainant (mortgagor) gave another deed of quitclaim and release to the
respondent, taking back another agreement in which complainant agreed to purchase, and
respondent to sell the land to the complainant, by the payment of a certain sum on April 15,
1897. We quote from the opinion in that case:
Notwithstanding this agreement and conveyance, the complainant claims that the
respondent still holds only a mortgage on the property, which he is entitled to redeem.
a mortgage on the property, which he is entitled to redeem. Most of the cases cited by the
complainant are those where the only question was whether an original deed was equitably a
mortgage, by reason of an agreement of defeasance on payment of a loan for which the deed
was security. In such cases courts have held that the deed did not become absolute simply
upon default, but that, once a mortgage, it remained a mortgage. Undoubtedly this proposition
is correct, at any time prior to foreclosure, because a deed cannot be a mortgage at one time
and an absolute deed at another. If the case before us only embraced the first deed, with the
agreement of defeasance, the complainant would be entitled to redeem. But that is not the
case. A second deed was made by the complainant, and a second agreement made between
the parties, after default under the first agreement. The complainant claims that the second
deed and agreement were intended to be a mortgage. The court did not find this to be so, as a
question of fact, for several reasons. It would have been an idle ceremony to execute the new
deed and agreement, simply to continue a mortgage for the same debt and security. The
complainant testifies that the respondent had started or threatened proceedings, in
consequence of which the new papers were made. The plaintiff also testifies that he knew that
he released all possible rights in the quitclaim deed of March 2, 1897, and that he had a
contract by which he agreed to purchase the land as stated. It would be difficult to draw a
contract more explicit or more conclusive of the rights of the parties. The situation and intent
of the parties are clear. Default had been made in paying the mortgage debt some weeks
before. The mortgagee was adverse to further delay, and was about to take some sort of
proceedings. It was therefore agreed that the complainant should release all his rights in the
property, which was only a right of redemption as mortgagor, and vest the title absolutely in
the respondent, in consideration of which the latter should give the complainant a right to
purchase the estate within a time expressly limited, and declared to be material, after
which the agreement was to be null and void.
should give the complainant a right to purchase the estate within a time expressly limited, and
declared to be material, after which the agreement was to be null and void. The complainant
also agreed to purchase the estate on the terms named, thus showing that he did not
understand that it was any longer held merely as security for his debt.
Under such circumstances, there can be no doubt of the absolute title in the grantee.
(Emphasis ours.)
7-9. The appellant in the instant case stresses the claim that the consideration, that is, the
amount of the antecedent indebtedness, was grossly inadequate, and it would be inequitable
to fail to relieve appellant from so great a sacrifice. While there seems to be some disparity
between the amount of the indebtedness and the value of the property, the evidence at the trial
as to the value was conflicting and not of a character to be entitled to much weight. There was
no evidence as to market value, or that the property had any certain market value. And those
testifying as to value had little actual knowledge of the property, and their testimony was
largely speculative. (Emphasis ours.) The testimony of the appellant, as to what he paid on
the average per acre at a former time, for the land in question and other land, was of little
weight as to the value of that particular land at an entirely different time.
We believe that the trial court decided correctly as to the question of the inadequacy of the
consideration, and that the reasoning of Judge Hatton was sound.
10. Having the witnesses before him, and the opportunity of observing their demeanor and
manner of giving their testimony, he was in a better position than we are to evaluate such
testimony and determine its proper weight. There being a conflict in the evidence as to the
question of the adequacy or inadequacy of the consideration, we shall follow the
well-established rule and not disturb the findings in that respect, of the trial court, there being
substantial evidence to support them.
Anderson v. Fuetsch, 31 Nev. 501, 103 P. 1013, 105 P. 99; Wiggins v. Pradere, 32 Nev. 183,
105 P. 1024.
Other cases in point and germane to the principal question of whether the transaction of
June 9, 1941, constituted an absolute sale to respondents with the right in appellant to
repurchase the property upon the terms and conditions of the option agreement, or whether
said transaction was merely a continuation of the mortgage relationship, with its concomitant
right of redemption, are: Jeffreys et al. v. Charlton et al., 72 N. J. Eq. 340, 65 A. 711 (a case
quoting a portion of the same criterion, or test, from Pomeroy's Equity Jurisprudence, which
we have quoted supra); Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90; McKinley
v. State ex rel. Sageng, Chairman of Rural Credit Dept. et al., 188 Minn. 325, 247 N.W. 389;
Holmes v. Warren, 145 Cal. 457, 78 P. 954.
11. The evidence and the surrounding circumstances clearly disclose the intention of the
parties that, on the 9th day of June 1941, the mortgage relationship, with its incidental equity
of redemption, should cease, and that the respondents, by the force and effect of the quitclaim
deed from appellant, should thereupon become vested with such title to the property as the
appellant then had; and that the appellant, by virtue of the lease and option to purchase,
should thereupon become vested with the right to repurchase the property upon the terms and
conditions of their option agreement. This right of repurchase was not greater or different
than the right of the optionee in the case of an ordinary or usual contract of such character. No
question of forfeiture of the land or as to an equity of redemption was involved, but merely
the right of the optionee to reacquire the property he had conveyed, by paying the price of
repurchase within the time limited by the agreement. If he so complied, he would thereby
have the right to have reconveyed to him such title as he had conveyed to the optionor. If he
did not comply with the terms and conditions of the option, such terms and conditions being a
mere offer which he was at liberty to accept or not, as he saw fit, he would have ceased to
have any right of repurchase, and the option, by its terms and conditions, would cease
and become null and void.
mere offer which he was at liberty to accept or not, as he saw fit, he would have ceased to
have any right of repurchase, and the option, by its terms and conditions, would cease and
become null and void.
This brings us to the question of whether or not there was a tender by appellant to the
respondents of the purchase price of the property, sufficient to constitute a compliance with
the terms and conditions of the option. It is admitted there was no direct tender to the
respondents by the appellant on or before June 5 or June 6, 1942, of the sum of $1,145,
together with the amounts of interest and taxes, as provided by the agreement, or any other
sum or sums of money. There was, as hereinabove set forth, a letter from the title company,
dated June 3, 1942, to O.H. Carlson, advising him of certain escrow instructions having been
prepared at the request of McCall, covering the sale of the said Nye County, Nevada, property
from the Carlsons to McCall (we quote from said letter), for a consideration of $2,719.45
plus interest on various amounts advanced by you to date of close of escrow. We quote
further from the said letter, as follows:
The escrow instructions are dated June 1, 1942, and sufficient money has been deposited
on June 1, 1942, in this escrow, to comply with the instructions given by Mr. McCall. We,
therefore suggest that you stop at this office at your convenience to read and sign, if
satisfactory, the escrow instructions which we have prepared and which are signed by Mr.
McCall. (Emphasis ours.)
12. It is stated correctly, we believe, in 17 C.J.S., Contracts, sec. 485, p. 989, that a
tender by a stranger to the contract is invalid.
We believe, however, that in view of certain testimony of McCall to the effect that Carlson
agreed, or at least acquiesced, that there could be an escrow, and in view of the
above-mentioned letter of Carlson's attorney, Mr. Walden, to Mr. Salisbury, dated May 23,
1942, in which, although Walden stated he was not authorized to enter into any escrow, he
stated, also, Mr. Carlson said, Tell the boys to put up their money and I will be in later
and complete the transaction,'" it would seem fair to conclude that respondents
acquiesced in a simple escrow.
the boys to put up their money and I will be in later and complete the transaction,' it would
seem fair to conclude that respondents acquiesced in a simple escrow. Carlson was
temporarily away from the city, and apparently left a message with Mr. Walden to the effect
as stated by him in the letter. Doubtless the only sort of an escrow Carlson, in his suggestion
to Walden, had in mind, in view of the clear and simple terms of the option, was one in which
the money would be deposited, to be paid promptly and unconditionally by the escrow agent
upon respondents' depositing in the escrow a good and sufficient quitclaim deed conveying
back to McCall the property which the respondents had received from him. Respondents do
not appear to have objected to transacting the business through the title company, and the
evidence discloses that, accompanied by his attorney, Mr. Walden, whom he had had prepare
a quitclaim deed conveying the property back to McCall, Carlson visited the title company's
escrow department office, on June 6, 1942, and, according to his testimony (more fully
detailed in the foregoing statement of facts herein), he told them (the title company) that they
(he and Walden) had a quitclaim deed and he (McCall) could pay half or the whole. If he
give all we give him the deed and if he give half we give him a receipt. He (the title
company representative) said, We have no money to give you. We have an escrow if you
want to sign it,' he said. Mr. Walden says then, Do not sign no escrow. Do not sign anything.
It is up to them to give you the money on this option.' * * * (Parentheses ours.)
As has been pointed out in the statement of facts, on June 2, 1942, $3,000 was deposited
with the Title Guarantee & Trust Company by Salisbury, for Gregg and himself, ostensibly to
cover the amount to be paid to the Carlsons by McCall, and the escrow instructions were
prepared according to McCall's instructions. The numerous requirements and conditions
which they contain have, in the foregoing statement of facts, been set forth.
forth. They were calculated to protect, to an extreme degree, the interests of the third parties,
Gregg and Salisbury, and, also, the interests of McCall, but little attention seems to have been
paid to the limitations and conditions of the option, the rights of the Carlsons in connection
with the transaction, or to the adaptation of this third-party deal to such terms and conditions.
The requirements and conditions of the escrow were such that on June 1, the date it was
opened, or on June 2, the date $3,000 was deposited, it must have been apparent to McCall,
Salisbury, Gregg, and the escrow holder that these requirements could not be complied with
in time to permit the money to be paid to the Carlsons on June 5.
13. Appellant's attorneys, in appellant's opening brief, contend that the Carlsons tendered
only a quitclaim deed, that appellant, because the Carlsons agreed to sell the property to him,
was entitled to a warranty deed, and that, because only a quitclaim deed was tendered, McCall
then became entitled to a title search to determine the condition of the title, also to determine
whether or not the Carlsons had encumbered the property during the one-year period of their
ownership. It is not provided in the option agreement that respondents shall convey by
warranty deed, and the nature and circumstances of the transaction between McCall and the
Carlsons were such that it could not be reasonably required. McCall's conveyance to the
Carlsons was by quitclaim deed, which would operate to pass only such title as McCall then
had, in settlement of the indebtedness, which latter was a substantial consideration. Certainly,
if McCall availed himself of the option right to buy the property back for the same purchase
price that the Carlsons had paid for it, with no profit to the Carlsons, he could require no
better title than he had furnished them by his quitclaim deed, in the absence of any provision
in the option agreement as to title. That McCall expected and required no more than a
quitclaim deed is evidenced by his statement in the escrow instructions {tr., vol.
instructions (tr., vol. I, folio 214, p. 72), as follows:
The amount of money which I will hand you to be paid for Deed to file in my favor
(which Deed is to be a Quitclaim Deed) is $2290.00 plus interest thereon at 6% per annum
from June 5, 1941 to date of close of escrow. (Emphasis ours.)
So we cannot agree that McCall was entitled to more than a valid quitclaim deed, duly
executed, or that, because the deed tendered by Carlson was a quitclaim deed, McCall was
entitled to any additional time in which to make a title search.
14. As to the right to receive the property back free and clear of encumbrances, we agree
that, upon compliance by the optionee with the terms of the option, by paying or
unconditionally tendering at least one half of the purchase price on or before June 5, 1942, the
optionee would have been entitled to the property free from any encumbrances placed there
by the Carlsons during the period of their ownership.
This right, however, in the absence of any provision in the option agreement as to
encumbrances, or additional time to determine as to them, would not entitle the appellant to
additional time to determine, from the records, whether or not the property had been thus
encumbered.
It would have been a simple matter to have had the records of mortgages and other
encumbrances, of Nye County, searched to the extent of determining whether, during the
short period of one year which was involved, there had been any encumbrances placed upon
the property. In view of there being no provision as to encumbrances in the option, this search
should have been arranged for and accomplished by appellant prior to the time the first
payment under the option became due. There was no duty upon the part of respondents, under
the terms of the option, to have such search made or to grant any additional time for same.
15. Appellant had merely an option, or a unilateral agreement, and being in no sense
obligated to pay any money or perform any act by virtue of the option, the terms of such
an agreement are strictly construed and enforced.
agreement, and being in no sense obligated to pay any money or perform any act by virtue of
the option, the terms of such an agreement are strictly construed and enforced. The optionor,
before acceptance by the optionee, is bound only to the extent that he has expressly agreed to
be bound. The obligation on his part is a mere offer, requiring unconditional acceptance in
order that a contract may be created. If it were construed otherwise, an optionee could change
the time specified for the payment of money, or impose conditions not contemplated by the
parties at the time the agreement was entered into, and thereby, without the optionor's
consent, foist a so-called contract upon him to which he had not agreed. Fundamentally, the
law of contracts does not permit this, as there must be mutuality of consent to all the
provisionsa meeting of the mindsin order that a contract may be created.
16, 17. It has not been shown in the instant case that the respondents had encumbered the
property to any extent, or at all. Presumably they had not, as, in case of the exercise by
appellant of his right to repurchase under the option, the implied obligation of respondents to
reconvey the property to appellant, free from any encumbrances on their part, would devolve
upon respondents, and it would be a breach of such implied obligation, and would also be
inequitable, if respondents had, by anticipation, rendered themselves unable to fulfill such
obligation; and, until the contrary appears, it is presumed that a person has not placed himself
in a position which would render him unable to perform his contractual obligations. We are
not called upon to decide what might have been the possible effect as to appellant's rights
under the option, as to, possibly, extending the time of payment, and, perhaps, affecting other
phases of the transaction, if it appeared that respondents had encumbered the property, for the
reason that no such facts are before us.
18. Where, by virtue of an option agreement, an optionor agrees to sell property under
the terms and conditions specified in the agreement, and the optionee is to indicate his
acceptance by the act of payment of all or part of the purchase price, upon a day or within
a period of time stated, the first payment, at least, must be made when due.
optionor agrees to sell property under the terms and conditions specified in the agreement,
and the optionee is to indicate his acceptance by the act of payment of all or part of the
purchase price, upon a day or within a period of time stated, the first payment, at least, must
be made when due. Time is, necessarily, because of the nature of such a contract, of the
essence thereof, whether expressly so stated therein or not.
The attorneys for appellant have contended that because time is not expressly stated in the
option to be of the essence of the contract, equity, to avoid the forfeiture of the rights of the
optionee under the agreement, should relieve him (appellant), and provide for the specific
performance of the agreement by respondents. They have cited certain cases, not in point,
because they are cases not involving rights under a mere option contract. Appellant has also
cited sections 26, 27, and 28, on pages 457-459 of 28 Cal. Jur., indicating that time, unless
expressly stated in the contract to be of the essence, is, in certain kinds of contracts and under
certain circumstances, held not to be of the essence. These sections relate to agreements of
purchase and sale, wherein, in the first instance the vendee becomes obligated to pay, and do
not relate to mere option contracts in which the optionee in the first instance is not obligated
at all. Other cases cited by appellant disclose the allowance of additional time to pay money,
where the payor is exercising the right of redemption. These authorities are inapplicable to the
situation in this case.
In support of the proposition that time is of the essence, and is a condition precedent,
where the exercise of the optionee's right under an option to purchase land is to be the
payment of money, we cite the following cases which we have found to be in point and
applicable to the situation existing in the instant case: Trogden v. Williams, 144 N.C. 192, 56
S.E. 865, 10 L.R.A., N.S., 867; Curtis v. Blair, 26 Miss. 309, 59 Am. Dec. 257; Hunt v.
Bassett, 269 Mass. 298, 168 N.E. 783 {cited by respondents); Northern Illinois Coal
Corporation v. Cryder 361 Ill.
(cited by respondents); Northern Illinois Coal Corporation v. Cryder 361 Ill. 274, 197 N.E.
750, 101 A.L.R. 1420; 12 Am. Jur. sec. 312, p. 867; 30 C.J.S., Equity, sec. 56, pp. 394-396.
19. The appellant, on June 6, 1942, when the respondents tendered their quitclaim deed,
not only failed to pay or tender the money required for the payment of the first installment of
the purchase price, but was not in a position to do so. He was neither ready, able nor willing
to make the payment on June 5, 1942, as provided by the agreement, nor on June 6, 1942, the
date upon which respondents tendered the deed, and such payment at said time was, by the
terms of the agreement, a condition precedent to his right to repurchase the land. The money,
as has been pointed out hereinabove, was deposited by Salisbury, on behalf of himself and
Gregg, subject to numerous conditions outlined in the escrow instructions signed by McCall,
which had to be complied with before any money could be paid to the respondents, and which
would, necessarily, require such time to fulfill that McCall, who acquiesced in them by
signing such instructions, well knew, made compliance with the agreement impossible,
within the time therein fixed.
20. One of the conditions, as before stated, required a title search, not only to determine
whether, during the year of the ownership of the property by respondents, there had been any
encumbrances placed upon the property, but to determine, also, the condition of the title
generally. This title search, apparently, had not been actually commenced June 5, when the
money became due, but had merely been authorized. It appears, from the evidence, that the
Title Guarantee & Trust Company had communicated with the Pioneer Title Insurance &
Trust Company and learned that a man would have to be sent to Tonopah to do the work, and
it would require two hundred dollars. Apparently McCall guaranteed to the Title Guarantee &
Trust Company the payment of the escrow charges, and the testimony of Mr. Booth, vice
president of Title Insurance & Trust Company, is rather vague as to why the title search
was not proceeded with promptly.
president of Title Insurance & Trust Company, is rather vague as to why the title search was
not proceeded with promptly. The inference is that it remained in abeyance awaiting the
payment of the two hundred dollars. This general title search was apparently made necessary
by the requirements of the transaction between McCall and the third parties, and not by any
reasonable requirement of the transaction between McCall and the Carlsons. But it involved
indefinite delay in respondents' receiving their money, and they had agreed to no such delay;
neither had they agreed that the time of payment was, in any manner, conditional upon a title
search.
The appellant commenced the instant case July 18, 1942, about six weeks after the money
became due, on June 5, 1942, offering to pay sufficient money into court to comply with the
terms of the contract, and, virtually, praying for specific performance. The case did not come
to trial until April 9, 1945. The court's decision was filed May 16, 1945.
Thus, if the trial court had done what appellant endeavored to have that court do, it would,
if all other conditions had been complied with, have been required to compel the respondents
to accept the purchase money almost three years after appellant had defaulted. This the trial
court, properly, declined to do.
Other conditions, also, were involved. The escrow instructions required not only good title
in the Carlsons before the money so deposited could be used, but, also, required a policy of
title insurance showing the title to the property vested in T. A. McCall, a married man,
subject to taxes, covenants, conditions, restrictions, reservations, easements, right of way of
record, all of which were subject to McCall's approval, and such additional encumbrances as
he might approve, and a trust deed to be filed for record, securing a note for $4,048.17. It
seems most extraordinary that it was even proposed in the escrow instructions that
respondents, before actually being paid the purchase money, would have to deliver the deed
and permit it to be recorded, so that title would be vested in appellant, in order that the
required policy of title insurance might issue, and then depend for payment upon McCall
{and doubtless the third parties) being satisfied with the terms, reservations, conditions,
etc., of the policy, and dependent, further, upon McCall executing the trust deed to the
third parties. If McCall had not been satisfied with such conditions, reservations, etc., and
had decided not to approve them, or not to execute the trust deed, there was no provision
for reconveyance to the Carlsons.
deliver the deed and permit it to be recorded, so that title would be vested in appellant, in
order that the required policy of title insurance might issue, and then depend for payment
upon McCall (and doubtless the third parties) being satisfied with the terms, reservations,
conditions, etc., of the policy, and dependent, further, upon McCall executing the trust deed
to the third parties. If McCall had not been satisfied with such conditions, reservations, etc.,
and had decided not to approve them, or not to execute the trust deed, there was no provision
for reconveyance to the Carlsons.
Suffice it to say that the Carlsons had agreed to no such conditions, and the presentation to
O. H Carlson of escrow instructions containing such conditions and providing for payment at
some uncertain and indefinite time in the future, provided all of the conditions were satisfied,
constituted no valid tender to respondents of the first installment of the purchase money, nor
of any money. It was not an acceptance of the offer of respondents embodied in the option
agreement, but amounted to its rejection, and, at most, constituted a new offer or proposal by
appellant, which the respondents had the right to, and did, decline.
The California case of Bourdieu v. Baker, 6 Cal. App. 2d 150, 44 P. 2d 587, cited by
respondents, is in point upon the proposition involved in the question we are now
considering. We quote from 44 P. 2d at page 591, as follows:
The deposit of this money with the bank as agent of the depositors, to be paid to the
plaintiff only on unauthorized conditions, did not comply with the terms of the option
agreement and is not a sufficient tender or offer of performance, Segno v. Segno, 175 Cal.
743, 167 P. 285; Righetti v. Righetti, 5 Cal. App. 249, 90 P. 50.
Other cases which we have found of assistance are: Lambert v. Gerner, 142 Cal. 399, 76 P.
53; Four Oil Co. v. United Oil Producers et al., 145 Cal. 623, 79 P. 366, 68 L. R. A. 226; 17
C.J.S., Contracts, sec. 43, p. 381; McCone v. Eccles, 42 Nev. 451
McCone v. Eccles, 42 Nev. 451, particularly page 457, 181 P. 134.
21. The trial court's decision was well reasoned and was amply supported by substantial
evidence; in fact, the same, and that court's findings and conclusions, have our entire
approval. It is clear that neither the trial court nor this court has any right or authority to
create a new contract such as contended for by the appellant, which the parties themselves
have not made, nor any right or authority to attempt to enforce, or require performance of, any
contract between the appellant and respondents in the instant case, containing or involving
terms and conditions substantially different from the terms and conditions of the lease and
option agreement made and executed between the parties on June 9, 1941. It is also clear that
said option agreement and all rights of the appellant thereunder ceased and were terminated
prior to the commencement of this action in the district court, by reason of the failure of the
appellant to comply, substantially or at all, with its terms and conditions, and, particularly,
because of the failure of the appellant to pay to respondents, within the time specified in the
agreement, the first installment of the purchase price of said property.
22, 23. Our equitable powers do not extend so far as to permit us to disregard fundamental
principles of the law of contracts, or arbitrarily to force upon parties contractual obligations,
terms, or conditions which they have not voluntarily assumed. In this regard, equity respects
and upholds the fundamental right of the individual to complete freedom to contract or
decline to do so, as he conceives to be for his best interests, so long as his contract is not
illegal or against public policy. In this respect, and many others, equity follows the law. Much
as we would like to relieve the appellant from his unfortunate situation, we cannot rightfully
do so, as we must maintain the necessary certainty, stability and integrity of contractual rights
and obligations.
We believe it is proper for us to observe that if appellant had sought, at a time sufficiently
early to be effective, competent and disinterested legal advice and guidance, in connection
with his transactions with respondents, he would, most likely, have been able to avoid such
loss as has probably become inevitable by reason of his failure to appreciate fully the
meaning, scope and limitations of his rights, and those of the respondents, in connection with
said transactions, and to act accordingly.
For the reasons indicated, the judgment of the district court, and that court's order denying
appellant's motion for a new trial, are hereby affirmed.
Ducker, J., died August 14, 1946. Successor not yet appointed.
On Petition for Rehearing
September 24, 1946.
The petition for rehearing in the above-entitled cause is hereby denied.
Eather, J., did not participate.
____________
63 Nev. 426, 426 (1946) Botts v. Rushton
M.L. BOTTS, Appellant, v. FRED H. RUSHTON,
Respondent.
No. 3445
August 24, 1946. 172 P. 2d 147.
1. Automobiles.
It was the duty of motorist on secondary highway as he approached arterial highway not only to stop
at the stop sign, but also to look carefully and permit truck approaching on arterial highway to pass unless
the situation was such as to clearly indicate that motorist could cross with a fair margin of safety.
2. Automobiles.
The statute providing that, where two vehicles are approaching on any public street or highway so that
their paths will intersect and there is danger of a collision, the vehicle approaching the other from the
right shall have the right of way, does not apply where the accident occurs at the intersection of a through
highway and an intersecting stop highway. Comp. Laws, sec. 4358.
3. Automobiles.
The rule that the first automobile to enter the intersection has the right of way does not apply where
the accident occurs at the intersection of a through highway and an intersecting stop highway.
4. Automobiles.
A driver on a through or arterial highway who is driving at lawful speed and in a lawful manner has
the right of way at an intersection with a secondary stop sign highway and is entitled to assume that a
driver on the latter will obey the law until the contrary appears or should appear to a reasonable man in
his position.
5. Automobiles.
Where the favored driver on arterial highway keeping a careful lookout as he approaches or enters the
intersection sees or becomes aware of anything indicating that the driver on the secondary highway does
not intend to yield the right of way, the favored driver must use the care of an ordinarily prudent person
in endeavoring to avoid an accident.
6. Automobiles.
Where driver on favored arterial highway is himself free from negligence in approaching an
intersection, he has the right to presume that the driver on the disfavored highway will yield the right of
way to him and not proceed into the intersection until he can do so without creating a traffic hazard.
7. Automobiles.
The purpose of arterial highways is to facilitate through traffic, afford rapid transit, and permit
vehicles thereon to move freely, thus accelerating the flow of traffic over such favored
highways, and as a general rule, it is not necessary for drivers on such highways to
stop or slow up as they reach a stop sign intersecting highway in order to ascertain
whether or not the driver on the latter is going to stop and yield the right of way.
move freely, thus accelerating the flow of traffic over such favored highways, and as a general rule, it is
not necessary for drivers on such highways to stop or slow up as they reach a stop sign intersecting
highway in order to ascertain whether or not the driver on the latter is going to stop and yield the right of
way.
8. Automobiles.
The right of way enjoyed by driver on favored highway does not relieve him of the duty of keeping a
careful lookout so that he may observe whether a driver on the disfavored highway is going to yield the
right of way, but he is not obliged to have his automobile under such control at an intersecting stop sign
highway that he may stop at once and so avoid collision with persons who may illegally come into his
path.
9. Automobiles.
Where driver on a trunk line is proceeding in a lawful manner, there is no rule that requires him to
keep his automobile under such control as to be able to stop within a given number of feet.
10. Automobiles.
The driver on an arterial highway is not required to exercise such a high degree of care when
approaching or entering an intersection with a stop sign highway as when approaching or entering an
intersection with another arterial.
11. Automobiles.
A favored driver's right of way is not absolute, and he may be guilty of negligence.
12. Automobiles.
Whether favored driver was guilty of negligence is nearly always a question of fact.
13. Automobiles.
Where speed limit for workers on Boulder dam was 45 miles an hour, such a workman who
approached intersection on arterial highway at 45 miles an hour was not negligent if he was keeping a
proper lookout and had not perceived any sign or indication that motorist approaching intersection on a
disfavored highway was not going to yield the right of way.
14. Automobiles.
That motorist after first slowing down accelerated his speed did not necessarily show negligence as he
approached intersection on arterial highway where driver on secondary highway had brought her
automobile to stop at the intersection.
15. Automobiles.
Where motorist on disfavored highway at intersection with another disfavored highway and an arterial
highway was approaching from the south and truck on arterial highway was approaching from the
northwest, testimony indicating that motorist on disfavored highway had not reached the center line of the
arterial highway, when driver of truck thereon started making his turn to the left to avoid
colliding with motorist, would not make it unreasonable or unnatural for truck
driver to turn to the left in attempt to avoid an accident.
thereon started making his turn to the left to avoid colliding with motorist, would not make it
unreasonable or unnatural for truck driver to turn to the left in attempt to avoid an accident.
16. Automobiles.
In action by occupant of truck against driver thereof for injuries sustained as result of intersection
accident, evidence sustained conclusion of trial court that emergency was created by another motorist on
disfavored highway, and that driver of truck did all that he possibly could to avoid accident after other
motorist had created the emergency.
17. Automobiles.
That driver of truck on arterial highway was less than two-thirds across intersection when emergency
was created by negligence of driver on disfavored highway was not conclusive on the issue of negligence.
18. Automobiles.
Evidence that driver on disfavored highway speeded up just as she approached arterial highway
constituted substantial evidence that motorist on disfavored highway realized that she was taking some
chance in attempting to beat truck on favored highway across the intersection.
19. Automobiles.
A workman carrying other workmen on the same job to work was not a common carrier, but only a
private carrier for hire whose duty was to exercise ordinary care.
Where there is substantial evidence supporting the trial court's finding that defendant exercised
ordinary care and that the accident was not the result of any negligence on his part, the general rule is that
the findings will not be disturbed on appeal, and that only conclusions that are clearly erroneous, that is,
erroneous beyond all reasonable doubt, will be reversed.
Action by M. L. Botts against Fred H. Rushton for injuries received as result of automobile
accident. From a judgment for defendant, and from an order denying plaintiff's motion for
new trial, the plaintiff appeals. Judgment and order affirmed.
Lewis & Hawkins, of Las Vegas, for Appellant.
C.D. Breeze, of Las Vegas, for Respondent.
OPINION
That portion of arterial highway No. 93 lying between Las Vegas and Henderson Townsite
is a divided highway with two lanes of traffic, one proceeding southeasterly on the way to
Boulder City, the other northwesterly on the way to Las Vegas. The former is commonly
known as the Boulder City highway, the latter as the Las Vegas highway. There is a divider
strip between the two lanes of traffic. Some 13 or 14 miles southeasterly from Las Vegas two
other highways intersect the Boulder City highway, one from the south, the other from the
west. The former is a three lane highway, and will be referred to as the Henderson highway.
The latter has two lanes; it comes into the Boulder City highway from Gate No. 6 of the Basic
Magnesium plant, and will be referred to as the Gate 6 highway. These two intersecting
highways are secondary stop sign highways. They do not retain their separate identities all the
way to the southwesterly edge of the Boulder City highway, but form a common
intersectional area at the junction. The NW-SE width of this area is approximately 250 feet.
Northeasterly from and approximately opposite said junction, a road crosses over the divider
strip between the Boulder City and Las Vegas highways. Beneath this crossing is a culvert
running in the same direction as the divider strip. The crossing will be referred to as the
culvert crossing. Across the Las Vegas highway from said crossing, a road continues on
northeasterly to a trailer park. Each of the Boulder City and Las Vegas highways has two
lanes. All traffic on the Boulder City highway goes toward Boulder City, while that on the
Las Vegas highway goes toward Las Vegas.
On the morning of March 22, 1944, between six and seven o'clock, defendant (respondent)
and eight other men were proceeding toward Boulder City in his truck.
men were proceeding toward Boulder City in his truck. All nine men were on their way to
work at the Boulder dam. Defendant was driving, and for a long time had daily been driving
fellow employees to work at said dam, where he also was employed. As he approached the
intersectional area on said morning, another car driven by a Mrs. Langford, was approaching
on the Henderson highway. It proceeded onto the Boulder City highway before defendant's
truck had passed, and defendant, in order as he says to avoid a collision, turned to the left and
passed in front of the other car. There was no collision, but before the truck was stopped it
passed between the southeasterly culvert-head and a power pole, thence into and beyond a
hole in the divider strip. At the far side of the divider strip the truck turned over on its right
side. Plaintiff (appellant), one of the occupants of the truck, was injured, and later
commenced this action against defendant, owner and driver of the truck. The case was tried
without a jury, and the lower court, after considering the evidence and after the judge had
personally inspected the scene of the accident, gave judgment for the defendant. From that
judgment and from an order denying plaintiff's motion for a new trial this appeal has been
taken.
Appellant contends (1) that there is no substantial evidence supporting the trial court's
decision; (2) that even if this court be of the opinion that there is some substantial evidence
supporting said decision, the conclusion reached by the lower court is so clearly and
manifestly wrong as to require reversal. He claims that when defendant reached the
intersection of the Boulder City and Gate 6 highways, he was traveling at or in excess of 45
miles an hour; that there was no appreciable slowing down of defendant's truck at any time;
that the Langford car was first in the intersection; that defendant could easily have avoided
any accident by stopping his truck, or turning to the right, or slowing down so as to allow the
other car to pass across the intersection in front of him; but that instead of doing any of
these things, he negligently turned to the left in order to beat the other car across the
intersection, and in so doing ran into the hole in the divider strip.
intersection in front of him; but that instead of doing any of these things, he negligently
turned to the left in order to beat the other car across the intersection, and in so doing ran into
the hole in the divider strip.
Defendant contends that before reaching the intersection he was traveling about 35 miles
per hour, but slowed down to about 25 miles per hour as he entered the intersection; that he
entered the intersection first; that when he was about two thirds of the way across the
intersection Mrs. Langford, who had stopped at the intersection of the Henderson and
Boulder City highways, suddenly started up and drove toward him on the arterial; that he then
put on his brakes and turned sharply to the left in order to avoid a collision; that at this time
Mrs. Langford's car was almost directly in front of him and so close that he could not
reasonably do otherwise than turn to the left; that the speed limit on the Boulder City highway
for vehicles carrying men going to work at the Boulder dam was 45 miles per hour.
To better appreciate the contentions of both parties, it is necessary that we briefly
summarize some of the pertinent testimony bearing on the question of negligence.
Samuel L. Blanton, called by plaintiff. (Mr. Blanton was in the truck, was injured, and
later brought suit against defendant.) Shortly before we reached the intersection, there was a
slight movement of the truck. It kind of hesitated, you know, and put us all on the watch. The
quick change of speed made me look out and I saw a woman approaching in a car from the
intersection. I wouldn't say she was stopping; it seemed to me that she hesitated and then
drove on. The next thing that happened, we began to swerve to the left. At this time I would
say that the truck was going between 35 and 40 miles per hour. When I first looked out of the
front of the truck, we had not yet come into the intersection. The truck was about 40 or 50
feet short of the intersection when I first saw the other car.
intersection when I first saw the other car. I would say that the speed of the truck was about
30 miles per hour when it went across in front of the other car. Rushton would quite often
make up the time when he was late. When I first saw the Langford car, it was between the
stop sign and the Boulder City highway. I could tell that the driver was a woman. When I first
saw her car, it was moving. The truck slowed down considerably while it was making the
sharp turn to the left.
Charles F. Christianson (one of the occupants of the truck), called by plaintiff. We got paid
twice a month, and paid Rushton $7 each payday. The truck was traveling about 35 miles an
hour that morning.
David R. Hardy, called by plaintiff. (Mr. Hardy was one of the occupants of the truck.) At
the time of the accident it was daytimelight. I did not notice anything unusual that morning
about the speed. Rushton's slowing down is what drew our attention that there was something
wrong.
William J. Rose, called by plaintiff. (Mr. Rose was in the truck, was injured, and later
brought suit against defendant.) Rushton started out from Las Vegas about ten minutes late
that morning. It was daylight. The Langford car was stopped at the intersection when I first
saw it. Rushton was just coming into the intersection at that time. The Langford car did not
continue to stand where it had stopped; it started across into the highway. When that
happened, Rushton made the lefthand turn. I believe it was before we reached the intersection
that I first saw the Langford car. We were just entering the intersection when I noticed the
other car in the intersection. We were about 100 feet from the other car.
Ellsworth J. Kearns, called by plaintiff. At the time of the accident I was employed as a
guard at Basic Magnesium. I was stationed at Gate 6, approximately 200 yards from the Las
Vegas-Boulder City highway.
I observed the truck on the morning of the accident for about a quarter of a mile before it
reached the intersection. It was going in excess of 40 miles an hour. It entered the intersection
at approximately the same speed, and did not slack speed. When I first noticed the Langford
car it was moving slow, but it then speeded up at the same time that Rushton entered the
intersection. The average speed for motor vehicles along this part of the highway is between
35 and 40 miles an hour. When the truck was just about to enter the intersection, I noticed the
Langford car going into the other intersection, and it looked like it was speeded up. Just
before this I had been watching the Rushton truck, and hadn't seen the Langford car
approaching the highway; but as I looked away from the truck and glanced over to the
intersection I noticed the Langford car moving slow, and it looked like it accelerated when it
got to the highway, and then I noticed the truck turn over. Cars traveling over the Boulder
City highway had the right of way. I distinctly saw the Langford car drive into the highway. It
went probably to the center of the highway, and the truck turned off and turned over and then
the Langford car went on over across. The truck probably turned to the left to miss the other
car, which was already on the highway. This car was close to the highway, and was moving
slow; it then speeded up. When I first observed the Langford car it was moving at a very slow
rate of speed. It was practically entering the Boulder City highwayprobably right on the line
of that highway. I would say that the Boulder City highway is from 20 to 24 feet wide. When
I looked away from the Langford car I don't believe it had reached the center of the
intersection. I didn't observe the truck as it entered the intersection, but had been observing it
until just before that time. When I saw the truck turning over, the other car was going very
slow, past the center between the two highways. The truck and the Langford car were the only
two vehicles I noticed on the highway that morning just before the accident.
morning just before the accident. There was very little traffic at that time of the morning. The
accident happened a little while before the heavy traffic started.
L. D. Cardwell called by plaintiff. At the time of the accident I was sergeant of the guards
at Basic Magnesium. The tire marks made by the truck led from a point approximately at the
intersection of the road leading into Gate 6 all the way to the culvert. There was no signs of
skidding, but there were definite traction marks all the way to the culvert. The truck had
proceeded into the intersection about 30 feet before the tire marks commenced. The stop sign
is about 25 feet from the Boulder City highway. It was a clear dayno mist, cloudiness, or
fogginess. There were no tire marks on the highway made by the Langford car. The tire marks
made by the truck indicated that the driver (Rushton) made an application of the brakes all the
way from the point where the marks first showed until the truck went off the highway. It was
only in the beginning of the tire marks that there were marks of all four wheels. The tread on
the tires was good. The distance from the point where the tire marks first showed and the
place where the truck went off the highway was approximately 120 feet. The tire marks
commenced on the right side of the center line of the highway going towards Boulder City.
M. Lynn Botts, plaintiff, testifying in his own behalf. My best judgment is that the truck
was traveling 45 miles an hour. Shortly before reaching the intersection Rushton took his foot
off the gas and put it on the brake, and the car slowed down; then it started going fast. Just as
it slowed down I looked out and saw the Langford car coming into the intersection. At this
time the truck was between 70 and 80 feet from the intersection. When I first observed the
other car, it looked like it was just on the highway. It was in the same lane that we were in. At
that time I would say the distance from the truck to the car would be around 280 or 290 feet.
Before we got to the intersection Rushton applied the brakes and the car started to stop.
we got to the intersection Rushton applied the brakes and the car started to stop. This took
just an instant, then the truck gained speed. About 10 feet or so before we reached the
intersection I saw the other car; that was after Rushton had applied the brakes. If Rushton had
gone straight ahead and turned neither to the right nor the left, he would have hit the Langford
car. That car had the right of way because it entered the intersection before we did. At the
time I saw the other car I would say it was moving slow. Rushton did not slow down at any
time until he applied the brakesjust jerked it is all. We were going up a grade there, but it
looked like the other car was going to stop, and then it didn't. Rushton probably drove a little
faster that morning than usual, but not much faster. I was not alarmed in any way. When I
first saw the Langford car, it was just entering the highway. When I last observed it, it hadn't
quite got to the middle of the highwaythe middle of the intersection. The truck turned just
before the Langford car reached the center of the intersection. On ordinary mornings we
traveled between 35 and 40; if we were a little late we would go 45. When Rushton slowed
down and put on his brakes, he was between 50 and 75 feet from the intersection. When I
observed the Langford car it was coming into the right-hand lane, and that was just before the
truck entered the intersection.
Fred H. Rushton, defendant, called by plaintiff as an adverse witness. My truck was a 1935
ton and a half Ford panel, all enclosed up to the two front doors. It was an all steel job, and its
weight, unloaded, was 4,750 pounds. When I first saw the Langford car it was about 50 yards
from the stop sign. At that time I was about 50 yards from the intersection nearest Las Vegas,
and about 150 yards from the other car. I kept my eye on the Langford car as we both
approached the intersection. I slowed down from approximately 35 miles an hour to around
25. I watched the Langford car all the time, and entered the intersection before it did.
entered the intersection before it did. When I entered the intersection the car was about 200
feet from my truck. When the other car reached the intersection, it stopped for a little while
and then started up and started to pull across the intersection. I was almost two-thirds of the
way through the intersection when either her foot slipped off the clutch or she stepped on the
gasI don't know, unless she didn't see me, and she just barreled over in front of me. I could
see that if I turned right, I would hit her straight on. If I had gone straight ahead, I would have
hit her in the driver's seat, so I did everything I could to move to the left to avoid the accident.
After I started to turn, the car was still coming toward me. It looked like she was almost into
me when I made this turn. My brakes were in good condition. After putting my foot on the
brake, I kept it there until I went off the road. Across there from the place I put on the brakes
until I went off the road was 50 feet, possibly, maybe a little farther. I never knew there was a
hole there in the divider strip. The truck was pretty badly wrecked. The front axle was bent
almost into a horseshoe, the top had fallen off and there was other damage. The tires on the
truck were in good condition and properly inflated. I usually drove the truck from 35 to 40
miles an hour. I have traveled this highway about twelve years. The stop sign is
approximately 100 feet from the east and west center line of the Boulder City highway. My
truck was on the right side of the center line, going toward Boulder City. When I observed
that a collision was imminent, my truck was about 40 or 50 feet from the car. The Langford
car was not on the Henderson highway when I concluded that there might be a collision. It
was on the Boulder City highway when I swerved over, right directly in front of me. She had
stopped, and it looked to me like she had given me the right of way, but she came right out in
front and I could do nothing else but turn to the left. She was directly in front of me at that
time, and I was so close to her that there was no way in the world of stopping my truck in
that short distance.
I was so close to her that there was no way in the world of stopping my truck in that short
distance. I turned almost parallel to the way she was running. I was too far through the
intersection to have gone anywhere else except to the left. It was just a matter of hit her or
clear her, and doing all I could to keep from having an accident without hurting my men any
more than possible. I slowed down coming into the intersection. In order to do so I put on the
brakes a little, then I took my foot off the brake but did not put it on the acceleratorjust
came along in easy. That is when the truck got into a 25 mile an hour motion. I had slowed
down to about 25 miles an hour, and when she stopped, I started up again. If she hadn't
stopped, I could have gone anywhere else and missed her and not had an accident. I had
mechanical brakes on the truck. I would say it would have taken me 75 feet to stop.
George Wimsatt, called by defendant. At the time of the accident I was chief deputy sheriff
of Clark County, stationed at Henderson substation. We had control over traffic on the B. M.
I. and Boulder City highways. I never knew Rushton or Mrs. Langford before the day of the
accident. She was coming toward Las Vegas. After the accident, there were no skid marks,
but the truck had made tire marks in its sharp curve to the left. The tire marks started in the
right lane, going toward Boulder City, and extended 60 feet before leaving the pavement. The
marks began to show about 30 feet before Rushton made his left turn. There were no tire
marks before Rushton had gone into the intersection. The tire marks from the place where the
left turn commenced to where the truck went off the highway were approximately 30 to 35
feet. There was no rubber burn. The tire marks could have been made by a small pressure of
brakes and the momentum of the truck as it was making the turn, because the right-hand track
showed the heaviest. The speed of the truck at the time it started to turn over was
approximately 10 to 12 miles an hour.
an hour. From the time the tire marks began to show until the truck went off the highway, I
imagine it was going from 30 to 32 miles an hour. The speed enforced on the Boulder City
highway was 35 miles an hour, but that did not apply to workers going to and from the dam,
Manganese Ore, and B. M. I. All workers were allowed 10 miles in excess, or 45 miles an
hour. The Las Vegas-Boulder City highway is a main artery. All vehicles coming in on stop
sign intersecting highways must stop at all entrances on the main highway. The stop sign was
approximately 60 feet from the center of the Boulder City highway. Under normal conditions
a car going 25 miles an hour can be brought to a stop in 21 feet, a car going 35 miles an hour,
in 28 feet. The tire marks commenced in the right-hand lane of the Boulder City highway
about 20 feet southeasterly from the place where the northerly line of Gate 6 highway joins
the southwesterly line of the Boulder City highway. It was after daylight that we received
notification of the accident from Tom Bellis, captain of the police department at Basic
Magnesium. We didn't use our head lights while proceeding to the scene of the accident.
1. It is proper that we state our views concerning the law applicable to cases of this kind. It
was Mrs. Langford's duty not only to stop at the stop sign, but also to look carefully and
permit the Rushton truck to pass, unless the situation was such as to clearly indicate that she
could cross with a fair margin of safety. Hoenig v. Kohl, 182 Wash. 245, 46 P. 2d 728; Avent
v. Tucker, 188 Miss. 207, 194 So. 596; Meyer v. Hartford Bros. Gravel Co., 144 Neb. 808, 14
N.W. 2d 660; Riley v. McNaugher, 318 Penn. 217, 178 A. 6; Higgins v. Jones, 337 Pa. 401,
11 A. 2d 158; Mellott v. Tuckey, 350 Pa. 74, 38 A. 2d 40; Rich v. Hall, 107 Vt. 455, 181 A.
113; Genovese v. Daigle, La. App., 17 So. 2d 736; Cole v. Sherrill, La. App., 7 So. 2d 205;
Dixon v. Futch, La. App., 166 So. 205; Marsiglia v. Toye, La. App., 158 So. 589; Greenfeld
v. Hook, 177 Md. 116, 8 A. 2d 888, 136 A.L.R. 14S5; Madge v. Fabrizio, 179 Md.
A.L.R. 1485; Madge v. Fabrizio, 179 Md. 517, 20 A. 2d 172; 5 Am. Jur. 669, nn. 15, 16.
2. Appellant cites sec. 4358, N.C.L. 1929, which reads: Where two vehicles are
approaching on any public street or highway so that their paths will intersect and there is
danger of a collision, the vehicle approaching the other from the right shall have the right of
way. Such statutory provisions do not apply to cases where the accident occurs at the
intersection of a through highway and an intersecting stop highway. Peltier v. Smith, Ohio
App., 66 N.E. 2d 117.
3. Nor does the rule that the first automobile to enter the intersection has the right of way
apply in this case. Ambra v. Woolsey, 55 Cal. App. 2d 104, 130 P. 2d 152; Genovese v.
Daigle, La. App., 17 So. 2d 736; Cole v. Sherrill, La. App., 7, So. 2d 205, 210, 211.
4-12. A driver on a through or arterial highway who is driving at lawful speed and in a
lawful manner has the right of way at an intersection with a secondary stop sign highway, and
is entitled to assume that a driver on the latter will obey the law until the contrary appears, or
should appear, to a reasonable man in his position. If the favored driver, keeping a careful
lookout as he approaches or enters the intersection, sees or becomes aware of anything
indicating that the driver on the secondary highway does not intend to yield the right of way,
he is bound to use the care of an ordinary prudent person in endeavoring to avoid an accident.
If the driver on the favored highway is himself free from negligence in approaching the
intersection, he has the right to presume that the driver on the disfavored highway will yield
the right of way to him and not proceed into the intersection until he can do so without
creating a traffic hazard. The purpose of arterial highways is to facilitate through traffic,
afford rapid transit, and permit vehicles thereon to move freely, thus accelerating the flow of
traffic over such favored highways. As a general rule it is not necessary for drivers on such
highways to stop or slow up as they reach a stop sign intersecting highway in order to
ascertain whether or not the driver on the latter is going to stop and yield the right of
way.
stop or slow up as they reach a stop sign intersecting highway in order to ascertain whether or
not the driver on the latter is going to stop and yield the right of way. The right of way
enjoyed by the driver on the favored highway does not relieve him of the duty to keep a
careful lookout so that he may observe whether the driver on the disfavored highway is going
to yield the right of way; but he is not obliged to have his car under such control at an
intersecting stop sign highway that he may stop at once and so avoid collision with persons
who may illegally come into his path. If a driver on a trunk line is proceeding in a lawful
manner, there is no rule which requires him to keep his car under such control as to be able to
stop within a given number of feet. The favored driver's right of way is not absolute. It is
qualified by the requirements previously stated, but subject to those requirements such a
driver has the right to proceed uninterruptedly across an intersection with a stop sign
highway. And it is not negligence for a driver on a primary highway to assume that a driver
on a secondary highway, marked by a stop sign, will stop and allow him to proceed. A driver
on an arterial highway is not required to exercise such a high degree of care when
approaching or entering an intersection with a stop sign highway as when approaching or
entering an intersection with another arterial. Notwithstanding a driver may have the right of
way, he may nevertheless be found to be guilty of negligence. Whether he was negligent is
nearly always a question of fact. Ambra v. Woolsey, 55 Cal. App. 2d 104, 130 P. 2d 152;
Bramble v. McEwan, 40 Cal. App. 2d 400, 104 P. 2d 1054; Bender v. Perry, 37 Cal. App. 2d
206, 99 P. 2d 319; Breker v. Rosema, 301 Mich. 685, 4 N.W. 2d 57, 141 A.L.R. 867; Arnold
v. Krug, 279 Mich. 702, 273 N.W. 322; Leitch v. Getz, 275 Mich. 645, 267 N.W. 581; Peltier
v. Smith, Ohio App., 66 N.E. 2d 117; Madge v. Fabrizio, 179 Md. 517, 20 A. 2d 172; Sibille
v. Highway Ins. Underwriters, La. App., 12 So. 2d 625; Reeves v. Staley, 220 N.C. 573, 1S
S.E. 2d 239; 40 C.J.S., Highways, sec.
18 S.E. 2d 239; 40 C.J.S., Highways, sec. 236, page 257, nn. 52, 53; 5 Am. Jur. 668, n. 12;
Anno., 136 A.L.R. 1497.
13. Appellant contends that when Rushton reached the intersectional area he was traveling
around or in excess of 45 miles per hour. There is no satisfactory evidence that he was
traveling in excess of 45 miles per hour, and the testimony of the witness Wimsatt is
uncontradicted that the speed limit of 35 miles an hour did not apply to workers going to and
from Boulder Dam, who were allowed 10 miles in excess, or 45 miles an hour. So, even if
respondent was traveling 45 miles per hour when he reached the intersectional area, he was
not negligent if he was keeping a proper lookout and had not perceived any sign or indication
that the Langford car was not going to yield the right of way.
14. The fact that Rushton after first slowing down accelerated his speed does not
necessarily show negligence on his part. Sibille v. Highway Ins. Underwriters, La. App., 12
So. 2d 625, 630, 631. It was natural for him to assume that when the driver of the Langford
car stopped, she did so with the intention of giving him the right of way. Campbell v. Kozera,
D.C., 63 F. Supp. 251; Garrison v. Burns, 178 Va. 1, 16 S.E. 2d 306, 308.
Appellant maintains that Rushton did not have to run into the ditch, he could have stopped
his truck or slowed down and allowed the Langford car to pass across the intersection in front
of him; also, that he could have turned either left or right and in either course would have
missed the divider strip and the Langford car too. Instead of doing any of these things
Rushton, according to appellant, tried to beat the Langford car across the intersection, and it
was his negligence in so doing that was responsible for the accident. Respecting these
contentions respondent admits that if the Langford car started up when the Defendant's truck
was far enough away to enable him to have safely turned to the right without colliding with
the Langford car or to have enabled him to stop his car in time to avoid a collision with
the Langford car or to have turned to the left into the cross-highway, as contended by
appellant, then the defendant was guilty of negligence in turning to the left and running
across and into the middle parking where his truck was upset by striking a hole."
without colliding with the Langford car or to have enabled him to stop his car in time to avoid
a collision with the Langford car or to have turned to the left into the cross-highway, as
contended by appellant, then the defendant was guilty of negligence in turning to the left and
running across and into the middle parking where his truck was upset by striking a hole. But,
says respondent, when Mrs. Langford unexpectedly and negligently drove her car onto the
right lane of the Boulder City highway, she created an emergency in the face of which
respondent, trying to avoid an accident, turned to the left in order to avoid a collision with her
car. He claims that in so doing he did all that a reasonable man could be expected to do under
the circumstances.
It is undisputed that the accident occurred in the daytime on a perfectly clear
morningno mist, or cloudiness or fogginess. It was so clear that witness Blanton could
not only see the Langford car, but could also see that a woman was driving it; and the officers
who were called to the scene of the accident did not use their lights. It is further undisputed
that Mrs. Langford's view, for a long distance along the Boulder City highway in the direction
of Las Vegas, was wholly unobstructed. She knew that the Boulder City highway was an
arterial. She knew, or should have known, that it was her duty to yield the right of way to the
truck unless, as a reasonable person, she could see that she had sufficient time to cross the
Boulder City highway in front of the Rushton truck.
It is proper also to observe that when Mrs. Langford drove onto the Boulder City highway,
she was not proceeding at right angles to that highway. In the first place, she approached from
the south to cross the main highway, which runs in a northwesterly and southeasterly
direction. Secondly, and calling for particular mention, is the fact that the culvert crossing
was so far to her left as she approached the Boulder City highway that if she had continued
in a straight line, her car, instead of moving into the culvert crossing on her way to the
Las Vegas highway, would have run into the divider strip on the southeasterly side of the
crossing.
if she had continued in a straight line, her car, instead of moving into the culvert crossing on
her way to the Las Vegas highway, would have run into the divider strip on the southeasterly
side of the crossing. Even if it could have reached the culvert crossing by continuing across
the Boulder City highway in exactly the same direction it had been traveling on the
Henderson highway, its front end, while crossing the arterial, would have been closer to the
truck than its rear end. That it was in fact still closer is apparent from the fact that it was
necessary for the Langford car to turn somewhat to the left before it could enter upon the
culvert crossing. These considerations make intelligible the testimony of defendant when he
says that if he had gone straight ahead he would have collided head-on with the other car,
and if he had turned to the right he would have hit that car in the driver's seat.
We add here one further observation, to wit, that neither Mrs. Langford nor any other
occupant of her car (if any) testified at the trial.
In support of his contention that respondent was negligent in turning to the left, appellant
argues that when the Langford car proceeded onto the Boulder City highway the distance
between it and the truck was such as to give respondent ample time to avoid a collision by
slowing down, stopping or turning to the right. Rushton testified that his truck was about 40
or 50 feet from the Langford car when he observed that a collision was imminent. Appellant's
contention is that when Rushton started his left turn the two vehicles were some 200 feet
distant from each other. The latter contention is based mainly upon the testimony regarding
the point at which the tire marks started their turn to the left. It is impossible to say exactly
how far apart the truck and car were when Rushton saw that Mrs. Langford was proceeding
onto the main highway instead of yielding him the right of way. Mr. Blanton testified that
when he first saw the Langford car the truck was some 40 or 50 feet short of the
intersectional area.
of the intersectional area. At that time, he says, the Langford car was between the stop sign
and the Boulder City highway. If, as appellant says, the Rushton truck was traveling 45 miles
an hour, it was going 66 feet per second. In other words, it would travel nearly 200 feet in
only three seconds. Presumably it would take the Langford car a few seconds at least to reach
the arterial from the point Mr. Blanton saw it approaching from the stop sign. Thus there is
substantial basis for the view that when defendant started his sharp turn to the left, his truck
and the Langford car were considerably closer to each other than 200 feet. Mr. Rose testified
that the truck was just entering the intersectional area when he saw the Langford car in the
intersection. At that time, as he says, the two vehicles were about 100 feet from each other.
Mr. Kearns testified that the truck was traveling in excess of 40 miles an hour when it entered
the intersection, and that it did not slack speed. This would mean that the truck was traveling
some 60 feet or more per second. He says that when he first noticed the Langford car it was
moving slowly, but accelerated as it reached the highway. He further testified that when he
looked away from the Langford car, he doesn't believe it had reached the center of the
intersection. The truck, says Mr. Kearns, probably turned to the left to miss the other car,
which was already on the highway. Mr. Cardwell testified that the truck had proceeded into
the intersection about 30 feet before the tire marks commenced. Mr. Botts testified that when
he first saw the Langford car coming into the intersectional area, the truck was between 70
and 80 feet short of that area and that the distance from the truck to the car at that time would
be around 280 or 290 feet. Further on in his testimony he said that it was about 10 feet or so
before the truck reached the intersectional area that he saw the Langford car. He also said that
if Rushton had gone straight ahead and turned neither to the right nor to the left, he would
have hit the Langford car.
Langford car. He further testified that it looked like the other car was going to stop, and then
it didn't. When he first saw the Langford car he says it was just entering the highway; when
he last observed it, it hadn't quite got to the middle of the highwaythe middle of the
intersection. He testified that the truck turned just before the Langford car reached the center
of the intersection. Mr. Rushton testified that he had mechanical brakes on his truck. Mr.
Wimsatt testified that the tire marks began to show about 30 feet before Rushton made his
left turn.
Mr. Wimsatt testified that under normal conditions a car going 25 miles an hour can be
brought to a stop in 21 feet, a car going 35 miles an hour, in 28 feet. But here we are dealing
with the case of a truck which weighed 4,750 pounds unloaded, carrying nine men, and which
plaintiff testified was traveling 45 miles an hour.
15. The testimony indicates that the Langford car had not reached the center line of the
Boulder City highway when Rushton started making his turn to the left. This testimony,
considered with the direction in which the Langford car was traveling, would not make it
unreasonable or unnatural for the defendant to turn to the left in his attempt to avoid an
accident, Sibille v. Highways Ins. Underwriters, La. App., 12 So. 2d 625; Arnold v. Krug,
279 Mich. 702, 273 N.W. 322.
16-18. Appellant maintains that if Rushton found himself confronted with an emergency,
it was the result of his own negligence. But we think there was substantial evidence from
which the trial court could reasonably conclude that the emergency was the result of Mrs.
Langford's negligence. Rushton was traveling at a rate of speed permitted to vehicles taking
men to work. If it be conceded that defendant's truck was less than two thirds across the
intersectional area when the emergency arose, that fact is not conclusive on the issue of
negligence. Defendant was violating no law, and there is substantial evidence from which the
lower court could reasonably conclude that he did all he possibly could to avoid the
accident, after Mrs.
could reasonably conclude that he did all he possibly could to avoid the accident, after Mrs.
Langford had created the emergency. The very fact that Rushton was traveling within the
speed allowed by law, and on the right of way highway, is strong evidence that Mrs. Langford
entered the intersection at a time when it was unsafe for her to do so. The fact that Mrs.
Langford, after first slowing up and stopping, speeded up just as she proceeded onto the
Boulder City highway constitutes substantial evidence that she realized she was taking some
chance in attempting to beat the Rushton truck across the intersection. Genovese v. Daigle,
La. App., 17 So. 2d 736, 737; Cole v. Sherrill, La. App., 7 So. 2d 205.
19. Rushton was not a common carrier, but only a private carrier for hire, and it is agreed
by the respective parties that his duty to plaintiff was only to exercise ordinary care for his
safety.
20. There is a substantial conflict of evidence on material issues of fact in this case, but
there is substantial evidence supporting the trial court's findings that defendant exercised
ordinary care and that the accident was not the result of any negligence on his part. Under
these circumstances it is the general rule that the trial court's findings will not be disturbed. In
such cases it is only where the conclusions reached by the lower court are clearly erroneous
that a reversal will be decreed. By clearly, as used in the preceding sentence, we mean
beyond all reasonable doubt.
Horsey, J., concurs.
(Successor to Ducker, J., not yet appointed.)
63 Nev. 447, 447 (1946)Rose v. Rushton
WILLIAM J. ROSE, Appellant, v. FRED H. RUSH-
TON, Respondent
No. 3444
August 24, 1946. 172 P. 2d 157.
1. Automobiles.
In action for injuries resulting from automobile accident, evidence that defendant was traveling
approximately 50 miles an hour, when considered with all the other testimony, was not sufficient to make
it clear that defendant was going more than 45 miles an hour.
Action by William J. Rose against Fred H. Rushton for injuries received in automobile
accident. From a judgment for defendant, the plaintiff appeals. Judgment affirmed.
Lewis & Hawkins, of Las Vegas, for Appellant.
C.D. Breeze, of Las Vegas, for Respondent.
OPINION
This case and that of Botts v. Rushton, 172 P. 2d 147, decided this day, grew out of the
same accident. At the beginning of the trial in the instant case the court, upon stipulation of
counsel, ordered that the record and the evidence, oral and documentary, heretofore given by
the witnesses testifying at the trial before this court in the case of M.L. Botts, plaintiff, against
Fred H. Rushton, defendant, No. 21425, together with the records and files in this court,
which trial was held during the month of December, and the testimony received subject to all
objections, motions to strike, and rulings of the court, as though the same were given in the
case at bar; save and except the injury here is different."
63 Nev. 447, 448 (1946)Rose v. Rushton
the case at bar; save and except the injury here is different. The two cases, upon stipulation
in this court, were ordered consolidated for argument on the appeals.
Some additional testimony was given in the case at bar, most of it relating to the nature
and extent of plaintiff's injuries. One witness, John S. Dorough, of Las Vegas, gave some
testimony bearing on the question of negligence. He testified that he was working for the fire
department at Basic Magnesium, that he followed the Rushton truck out to the intersection on
the morning of the accident, and that it was traveling approximately 50 miles an hour.
According to witness the Rushton truck did not slow down before it swerved to the left. The
only thing that I noticed, the car drove out in front of Mr. Rushton's truck. I don't know
whether it stopped or whether it went on; but I did notice that he swerved to miss the car that
drove out in front of him. He testified further that in his opinion if Mr. Rushton had not
swerved to the left there would probably have been a crash. This witness's testimony was not
referred to by counsel for either party in the arguments in this court. His testimony that
Rushton was traveling approximately 50 miles an hour, when considered with all the other
testimony, is not sufficient to make it clear that the truck was going more than 45 miles per
hour.
For the reasons given in the Botts case, the judgment and order appealed from are
affirmed.
____________
63 Nev. 449, 449 (1946) Dill v. Flanigan Whse. Co.
MONITOR PIPE AND STEEL COMPANY, JACK DILL, Appellant, v. FLANIGAN
WAREHOUSE COMPANY, FRED SHAIR, HARRY COWDEN, Respondents.
No. 3454
September 24, 1946. 172 P.2d 846.
Bills of exceptions may be stricken on motion.
A motion to strike bill of exceptions would be denied where questions whether bill was superfluous,
and whether anything in it was useful on the appeal, were questions which should be determined on
appeal proper. Comp. Laws, sec. 9385.92.
A judgment roll would not be stricken as being of no value because the appeal is from the judgment
alone, but what consideration should be given the judgment roll was a question to be disposed of on the
appeal. Comp. Laws, sec. 9385.92.
Where appeal was taken on basis that appellant was questioning sufficiency of judgment in light of
pleadings and issues, and appellant contended that findings of fact and conclusions of law did not
conform to pleadings and did not settle issues, a motion to dismiss the appeal would be denied, since
whether there was anything before court that could be considered on appeal was a question more properly
to be considered on the appeal than on motion. Comp. Laws, sec. 9385.92.
Action by Monitor Pipe and Steel Company and Jack Dill against Flanigan Warehouse
Company and others to recover possession of property and for damages. From an adverse
judgment, plaintiffs appeal, and defendants move to strike the bill of exceptions and the
judgment roll, and to dismiss the appeal. Motions denied.
Sidney Fox, of Reno, for Appellants.
Charles L. Richards, of Reno, for Respondent Harry Cowden.
Charles M. Merrill and John E. Robinson, both of Reno, for Respondents Flanigan
Warehouse Co. and Fred Shair.
OPINION
Plaintiff brought this action in the Second judicial district court, Washoe County, to
recover the possession of certain personal property, to establish his ownership and rights to
the possession of certain personal property, and for damages. After trial without a jury, the
court rendered and entered judgment in favor of defendants and against plaintiff, who has
appealed from the judgment and decision, and from the whole of said judgment and
decision. No motion for a new trial was made.
On February 5, 1946, counsel for all parties signed the following stipulation: It is hereby
stipulated, that the annexed and foregoing bill of exceptions and record on appeal, consisting
of copies of Pleadings and evidence and a deposition taken in the above entitled Cause, be,
and the same hereby are settled and allowed, and shall become the bill of exceptions and
record on appeal in said Action, and we do hereby certify that said bill of exceptions and
record are true and correct, and contain the substance of the pleadings, evidence and
testimony available, relating to the point or points involved in the above entitled action, and
the same has been and hereby is settled and allowed. Said Bill of Exceptions and Record on
Appeal was filed in this court as one document on February 6, 1946. It includes a copy of the
judgment roll.
Appellant filed his opening brief on appeal February 21, 1946. On March 30, 1946,
respondent Harry Cowden noticed motions for orders of this court (1) striking the bill of
exceptions, (2) striking the judgment roll, and {3) dismissing the appeal.
(3) dismissing the appeal. These motions have been presented, and are now before the court
for its determination.
Movent does not claim that appellant has failed to comply with any statutory requirement
in perfecting his appeal. His main contention is, that as plaintiff made no motion for a new
trial in the lower court, this court should not consider or review the evidence for any purpose.
Appellant does not question the well-settled rule that when there has been no motion for a
new trial, the supreme court will not inquire into the sufficiency of the evidence to support
the trial court's findings. He expressly admits that he is in no position to question its
sufficiency on this appeal. He does maintain, however, that on appeal from the judgment
alone this court may examine the evidence to determine the legal question whether there is a
total failure of proof to support the judgment. In support of this contention he cites Sweet v.
Sweet, 49 Nev. 254, 258, 243 P. 817; Richards v. Steele, 60 Nev. 66, 70, 71, 99 P.2d 641,
100 P.2d 72; and In re Benson's Estate, 62 Nev. 376, 379, 151 P. 2d 762.
Appellant says he has taken this appeal essentially on the basis that he is questioning the
sufficiency of the judgment in the light of the pleadings in the case and in the light of the
issues made by those pleadings. It is his contention that the findings of fact and conclusions
of law do not conform to the pleadings and do not settle the issues made by them; nor, he
says, do they settle the most important question of law involved in the case, as pointed out in
his opening brief.
1, 2. Bills of exceptions are sometimes properly stricken on motion as, for example, in
Lewis et al. v. Williams, 61 Nev. 253, 123 P. 2d 730, 125 P. 2d 305. But whether the bill in
the instant case is superfluous and of no value, as movent contends, and whether anything in
it is useful on this appeal, are questions which we think should be determined on the appeal
proper.
All the cases cited by movent were so determined; he has cited no authority in which such
questions as he raises here were presented or decided on motion.
3. The papers making up the judgment roll in this case are incorporated in the bill of
exceptions. This procedure is expressly authorized by sec. 42 of the New Trials and Appeals
Act, Stats. of Nev. 1937, chap. 32, at p. 67, sec. 9385.92 N.C.L., 1929, Supp. 1931-1941, vol.
2, p. 1263. We see no merit in movent's contention that the judgment roll should be stricken
as being of no value because the appeal is from the judgment alone, and no authorities are
cited in support of that view. What consideration, if any, should be given the judgment roll is
a question to be disposed of on the appeal.
4. Nor do we think the motion to dismiss the appeal should be granted. Whether, as
movent contends, there is nothing before the court that can be considered on the appeal, is a
question more properly to be considered on the appeal than on motion; and no authorities to
the contrary have been cited.
Movent will have full opportunity, on the appeal, to endeavor to show that the contentions
advanced on these motions are sound, and to present such other reasons as he may be advised
in support of his request that the judgment appealed from be affirmed.
All the motions are denied; respondent Harry Cowden is given to and including October
14, 1946, within which to serve and file his answering brief on the appeal, and appellant is
given to and including November 4, 1946, within which to serve and file his reply brief.
Eather, J., did not participate.
____________
63 Nev. 453, 453 (1946) Wagner v. Anderson
JOSEPH E. WAGNER Appellant, v. M. O. ANDER-
SON, Respondent.
No. 3458
November 14, 1946. 174 P.2d 612.
1. Judgment.
In assault action default judgment was required to be set aside on grounds of excusable neglect where
failure to make appearance was due to fact that during period between service of process and entry of
judgment defendant was ill, suffered from several gunshot wounds and a broken shoulder blade, and
sheriff's guards in whose custody defendant was placed after the assault were continually in attendance.
Comp. Laws, sec. 8640, as amended.
2. Judgment.
The statute authorizing relief from judgment taken through mistake, surprise, or excusable neglect is
remedial and should be liberally construed. Comp. Laws, sec. 8640, as amended.
3. Judgment.
Proof of allegations in answer tendered with motion to set aside default judgment for assault that
defendant was insane when assault was committed would relieve defendant of legal responsibility for
exemplary damages and stated a meritorious defense to that extent. Comp. Laws, sec. 8640, as amended.
Action by M. O. Anderson against Joseph E. Wagner for assault. From an order denying
motion to set aside a default judgment entered against defendant, defendant appeals.
Reversed with directions.
Virgil H. Wedge, of Reno, for Appellant.
R.S. Flanary, of Sparks, for Respondent.
OPINION
By the Court, Eather, J.:
The record in this case presents an appeal from an order made and entered in the district
court of Washoe County on February 1, 1946, denying defendant's motion to set aside a
default judgment entered against said defendant on October 15, 1945.
to set aside a default judgment entered against said defendant on October 15, 1945.
On September 18, 1945, plaintiff commenced an action against defendant to recover
$1,348.72 as actual damages and $4,000 exemplary damages on account of the injuries
inflicted upon plaintiff by defendant by an alleged assault committed on September 8, 1945.
On September 18, 1945, defendant, while an inmate of the Washoe County general
hospital at Reno, Nevada, was served with process in said action.
On October 1, 1945, no appearance having been made by defendant, his default was
entered and on October 15, 1945, a judgment was given against said defendant in the amount
of $5,348.72, representing $1,348.72 as actual damages and $4,000 as exemplary damages,
with costs in the amount of $29.90.
Defendant on December 1, 1945, filed and served a motion to vacate and set aside the
default and judgment. The motion was based upon the ground that the same resulted from
mistake, surprise, and excusable neglect of defendant. A verified answer was presented with
the motion. The motion was supported by the affidavit of defendant, and the following
statements therein contained are admitted:
That on September 8, 1945, while in the City of Sparks, Washoe County, Nevada, the
defendant was shot several times with a gun by the present plaintiff and others; that one of the
bullets from said gun entered his face at the point of his chin, emerging from the right side of
his throat; that one bullet entered the right side of his chest but failed to emerge from his
body; that one bullet entered the left side of his chest, emerging from his back immediately
below the left shoulder blade; that one bullet entered his left hand at the middle knuckle and
emerged at the knuckle of the left forefinger; that on that same date and as a result of being
forcibly thrown to the ground by a police officer, his right shoulder blade was shattered and
broken; all of which left the defendant in a serious physical condition; that he was
immediately taken to the Washoe County General Hospital at Reno, Nevada, for
treatment; that soon after arrival at the hospital he was chained to a bed, thereby
restraining and restricting his freedom; that while so restrained and restricted and on or
about September 1S, 1945, a complaint in the above-entitled case was filed against
defendant and defendant was served with summons."
he was immediately taken to the Washoe County General Hospital at Reno, Nevada, for
treatment; that soon after arrival at the hospital he was chained to a bed, thereby restraining
and restricting his freedom; that while so restrained and restricted and on or about September
18, 1945, a complaint in the above-entitled case was filed against defendant and defendant
was served with summons.
And further, that due to his physical condition as the result of his gunshot and other
wounds, he was unable to offer any defense and answer; that he first learned of the entering of
judgment against him on October 29, 1945, and thereafter employed an attorney.
The record further shows that before the same court wherein the motion to set aside the
default was pending and about December 17, 1945, defendant was adjudged insane and by
the court ordered committed to the Nevada state hospital. Further in support of the motion it
was established that prior to the hearing and on December 20, 1945, a petition for a guardian
ad litem for defendant was filed in said cause. This petition was supported by an affidavit of a
doctor who examined defendant on December 17, 1945, and from his examination stated that
defendant was suffering from maniac depressive psychosis, and was insane; that in the
opinion of the doctor defendant was insane on September 8, 1945, and for some time prior
thereto, and remained insane at all times from September 8, 1945, to December 19, 1945.
That from September 8, 1945, to December 19, 1945, defendant was incapable of transacting
ordinary business. The record contains no denial of this statement of facts. Upon the showing
a guardian ad litem was appointed for defendant.
In opposing the motion plaintiff called several witnesses, among whom was another
doctor. He testified that on September 16, 1945, he was called to treat and perform an
operation on defendant; that between September 16, 1945 and December 15, 1945 he treated
and observed defendant. * * * That as a result of his observation he deemed defendant to be
mentally unbalanced at all times from September 16, 1945 to December 15, 1945."
observation he deemed defendant to be mentally unbalanced at all times from September 16,
1945 to December 15, 1945. He testified that during said period the defendant made no
request nor inquiry to him in regard to obtaining legal counsel.
The substance of plaintiff's showing in opposition to the motion was developed by several
witnesses. From this testimony it was established that immediately after the affray defendant
was removed to the Washoe general hospital for treatment of his injuries and placed in
custody of guards appointed by the sheriff of Washoe County; that defendant at no time
during this period requested legal counsel to defend the action. When process was served
upon him he inquired the name of attorneys representing the Bank of America. On or about
October 15, 1945, he requested a nurse in attendance to obtain legal counsel to aid him in
making a gift to the nurses at the hospital. At the conclusion of the hearing the court denied
the motion.
Respondent contends that after being served with process and up to the time that
defendant's default was entered, the record shows that he made no effort to obtain legal
assistance in defense of the action. Therefore his conduct was inexcusable. The admitted facts
established, however, that during all this period defendant was mentally and physically ill; his
mental condition was such that sheriff's guards were continually in attendance. In addition to
the broken jaw defendant suffered from several gunshot wounds and the right shoulder blade
was shattered and broken.
1, 2. 1. We are of the opinion that upon the showing made, the default and judgment
should have been get aside, upon the grounds of excusable neglect, and defendant permitted
to answer. Adhering to the law many times announced by this court, we have no other
alternative. Section 8640, N.C.L. 1929, as amended, is a remedial statute and should be
liberally construed. This construction of the statute has been announced so frequently that
citation of authorities is unnecessary.
The contention of respondent under the admitted facts would require the application of a
formula which would measure defendant's legal responsibility for failure to answer by the
same yard sticks as would be applied to an individually mentally and physically fit. The
mental and physical condition of a litigant has many times been considered by the courts in
setting aside default judgments. Swisshelm Gold Silver Co. v. Farwell, Ariz. 124 P.2d 544;
Fink & Schindler Co. v. Gavros, et al., 72 Cal. App. 688, 237 P. 1083; Salsberry v. Julian, 98
Cal. App. 638, 277 P. 516.
3. The contention is made that the tendered answer admits the assault by defendant upon
plaintiff and that the resulting condition of defendant at that time is not material and therefore
a meritorious defense is not shown. The answer does not deny the assault, but alleges
affirmatively that defendant was insane when the assault was committed. The judgment
rendered in this action awards in addition to compensatory damages, the sum of $4,000 as
exemplary damages. The answer tenders an issue as to defendant's legal responsibility for
punitive damages by reason of his insanity. If, as alleged by defendant, he was insane when
the assault was committed, proof of such fact may relieve him of legal responsibility for
exemplary or punitive damages. To this extent, therefore, a meritorious defense is made. See
28 Am. Juris. 734, sec. 101; 32 C.J. 751, sec. 549. See also 44 C.J.S., Insane Persons, p. 126.
The order appealed from is reversed with directions to the district court to set aside the
default and judgment and permit defendant to answer upon such terms as may be just and
reasonable.
____________
63 Nev. 458, 458 (1946) Wagner v. Hefling
JOSEPH E. WAGNER, Appellant v. ROGER M.
HEFLING, Respondent.
No. 3459
November 14, 1946. 174 P.2d 615.
Action by Roger M. Hefling against Joseph E. Wagner for assault. From an order denying
motion to set aside default judgment entered against defendant, defendant appeals. Reversed
with direction.
Virgil H. Wedge, of Reno, for Appellant.
R.S. Flanary, of Sparks, for Respondent.
OPINION
This case and that of Anderson v. Wagner, 63 Nev. 453, 174 P.2d 612, grew out of the
same alleged assault.
The facts of the above-mentioned case being identical with those of the case of M. O.
Anderson, plaintiff and respondent, except for slight variations, and the specifications of
points and errors upon which the appellant intends to rely, the statement of facts, and points
and authorities thereof being the same with the instant case, the two cases, upon stipulation in
this court, were consolidated for argument on the appeals.
For the reasons given in the Anderson case, the order appealed from is reversed, with
directions to the district court to set aside the default and judgment and permit defendant to
answer upon such terms as may be just and reasonable.
____________
63 Nev. 459, 459 (1946) Roberts v. Roberts
MARY LOUISE ROBERTS, Appellant, v. DAVID G.
ROBERTS, Respondent.
No. 3440
November 22, 1946. 174 P.2d 611.
Where appellant never filed request with lower court clerk to prepare transcript, nor instituted
proceeding in supreme court for bill of exceptions or transcript, respondent's motion to dismiss appeal
after expiration of time for presentation of transcript must be granted. Rules of Supreme Court, rules 2, 3.
2. Courts.
A mandatory supreme court rule which is not unreasonable nor in conflict with statute, has same force
and effect as statute and is binding and obligatory on court and litigants.
Action for divorce by David G. Roberts against Mary Louise Roberts. From a judgment
for plaintiff and an order denying defendant's motion for a new trial, defendant appeals. On
respondent's motion to dismiss the appeal. Appeal dismissed.
Mary Louise Roberts, in Pro per.
Luke J. McNamee, of Las Vegas, for Respondent.
OPINION
This matter is before the court on the motion of respondent to dismiss the appeal in the
above-entitled matter. The principal ground of the motion is that no transcript of the record
on appeal has ever been filed with the clerk of this court as prescribed by rule II of the rules
of the supreme court.
Briefly stated the facts are as follows:
On the 30th day of September, 1943, the Eighth Judicial District Court of the State of
Nevada, in and for the County of Clark, Case No. 17847, made and entered a final judgment
of divorce in favor of Respondent herein and against Appellant, on the ground of extreme
cruelty. Written notice of decision of said case was duly served upon the attorney for the
Appellant on October 1st, 1943.
A motion for a new trial was subsequently made by the Defendant, Appellant herein, and
on October 22nd, 1943, the lower court denied said motion for a new trial.
On December 15th, 1943, the defendant, Appellant herein, filed with the Clerk of the
Eighth Judicial District court of the State of Nevada, in and for the County of Clark, a Notice
of Appeal to the above-entitled court from the final judgment and the whole thereof and each
and every part thereof made and entered on the 30th day of September, 1943, and also from
the order of the lower court denying the defendant's, Appellant herein, motion for a new trial
made and entered by the lower court on October 22nd. 1943.
The Notice of Appeal was signed by the defendant, Appellant herein, in Propria Persona.
An Undertaking on Appeal was duly served and filed with the Clerk of the Lower Court.
No further proceedings were taken by the defendant, Appellant herein, in connection with
the perfection of said appeal.
Under the law, where Notice of Appeal is given and the proper undertaking on appeal is
filed with the Clerk of the lower court to the Supreme Court, the lower court is divested of
any further jurisdiction in the case and jurisdiction of said case is taken over by the Supreme
Court.
Therefore, for the purpose of making the motion to dismiss the appeal in the Supreme
Court, the Respondent herein caused a certified copy of the Judgment Roll, the original
Notice of Appeal and the Undertaking on Appeal to be filed in the above-entitled court,
together with a certificate by the Clerk of the lower court setting forth no request for
transcript was ever made by the Appellant in the lower court and that the only papers in
connection with the appeal were the Notice of Appeal and the Undertaking on Appeal."
the original Notice of Appeal and the Undertaking on Appeal to be filed in the above-entitled
court, together with a certificate by the Clerk of the lower court setting forth no request for
transcript was ever made by the Appellant in the lower court and that the only papers in
connection with the appeal were the Notice of Appeal and the Undertaking on Appeal.
Notice of motion to dismiss the above appeal, with affidavit in support thereof, was duly
served upon the appellant.
Rules II and III of the supreme court of the State of Nevada provide as follows:
Rule II. The transcript of the record on appeal shall be filed within thirty days after the
appeal has been perfected, and the bill of exceptions, if there be one, has been settled.
Rule III. If the transcript of the record be not filed within the time prescribed by Rule II,
the appeal, after five days' notice in writing to the appellant, specifically stating the grounds
thereof, may be dismissed on motion of the respondent.
Copies of all documentary evidence and affidavits to be relied upon on the hearing of said
motion, other than the transcript of the record, shall be served with said notice. If witnesses
are to be called upon said hearing, their names must be stated in said notice, as well as the
substance of what they are expected to testify to.
1. No request to the clerk of the lower court to prepare a transcript was ever filed and no
proceeding for a bill of exceptions or transcript was ever instituted by appellant herein, as set
forth in the clerk's certificate on motion to dismiss appeal on file herein.
Counsel for respondent filed his points and authorities, and the motion was set for hearing.
At said hearing counsel for respondent appeared. No appearance was made for appellant.
Counsel for respondent urged that the case stand submitted on his motion and
memorandum of points and authorities; and, no good cause appearing why such should not
be the order, an order was entered accordingly.
should not be the order, an order was entered accordingly.
We are of the opinion that the motion is well taken. Neither of the requirements mentioned
was complied with by appellant. To relax the rules would amount to their nullification.
2. No excuse is presented for the failure to have the transcript presented in this court
within the time required by supreme court rules II and III. We do not deem it necessary to
enter upon a discussion of the case. This court, in numerous cases, has had occasion to hold
that a mandatory rule of court not unreasonable nor in conflict with statute, has the same
force and effect as a statute and is binding; that its observance is obligatory on the court and
should be binding and obligatory upon litigants as any other rule of civil conduct. Lightle v.
Ivancovich, 10 Nev. 41; Young v. Updike, 29 Nev. 303, 89 P. 457; Collins v. Nat C.
Goodwin & Co., 32 Nev. 342, 108 P. 4; Beco v. Tonopah Ext. Min. Co., 37 Nev. 199, 141 P.
453; Ward v. Pittsburgh Silver Peak Gold Min. Co., 39 Nev. 80, 148 P. 345, 153 P. 434, 154
P. 74; State v. Second Judicial District Court, 48 Nev. 459, 233 P. 843; American Sodium
Co. v. Shelley et al., 51 Nev. 26, 267 P. 497; Sullivan v. Nevada Industrial Comm., 54 Nev.
301, 14 P.2d 262; Baer v. Lilenfeld, 55 Nev. 194, 28 P. 2d 1038. Therefore the motion to
dismiss must prevail.
Appeal dismissed.
____________
63 Nev. 463, 463 (1946) State v. Elsbury
THE STATE OF NEVADA, Respondent, v. ROBERT ELSBURY,
Also Known as R.H. ELSBURY, Appellant.
No. 3452
December 21, 1946. 175 P.2d 430.
1. Larceny.
Under larceny statute, money taken must be the property of another. Comp. Laws, sec. 10323.
2. Partnership.
The statutory statement that one of partner's property rights is his right in specific partnership
property means simply that partner, subject to contrary agreement, has an equal right with copartners to
use or possess any partnership property for any proper partnership purpose, but cannot otherwise possess
it without partners' consent. Comp. Laws, sec. 5028.23.
3. Partnership.
Under uniform partnership act, a partner is co-owner with his partners of specific partnership
property, holding as a tenant in partnership. Comp. Laws, sec. 5028.24.
4. Partnership.
Partner's rights in specific partnership property are not assignable except in connection with
assignment of rights of all partners in the same property, and are not subject to attachment or execution
upon a personal claim against partner. Comp. Laws, secs. 5028.24, 5028.25.
5. ExemptionHomestead.
A partner cannot claim any right under homestead or exemption laws when partnership property is
attached for a partnership debt. Comp. Laws, secs. 5028.24, 5028.25.
6. Executors and AdministratorsPartnership.
On death of a partner, his right in specific partnership property vests not in his personal representative
but in surviving partner. Comp. Laws, secs. 5028.24, 5028.25.
7. CurtesyDowerExecutors and Administrators.
A partner's right in specific partnership property is not subject to dower, curtesy, or allowances to
widow, heirs, or next of kin. Comp. Laws, secs. 5028.24, 5028.25.
8. Partnership.
The statute providing that partner's interest in partnership is his share of profits and surplus, and that
same is personalty, declares the rule prevailing before passage of the act. Comp. Laws, sec. 5028.25.
9. Joint TenancyPartnershipTenancy in Common.
Joint ownership and part ownership of personalty are distinguishable from the relationship of
partnership. Comp. Laws, sec. 5028.25.
10. Partnership.
Property of a partnership belongs to the firm and not to the partners. Comp. Laws, sec. 5028.25.
11. Partnership.
A partner has no individual property in any specific assets of the firm, but each partner's interest in
partnership property is his share in the surplus after partnership debts are paid and partnership accounts
have been settled. Comp. Laws, sec. 5028.25.
12. Partnership.
Amounts invested by partners respectively in firm would be no criterion in determining their
ownership of partnership property, for partner who furnished largest amount of capital in the first
instance might, on final settlement, be found to have no interest whatever in assets then on hand. Comp.
Laws, secs. 5028.24, 5028.25.
13. Partnership.
When a partnership is admittedly insolvent, neither partner can have any separate interest in firm
property.
14. Partnership.
A partner's right in partnership property is a mere chose in action and carries with it a right to an
accounting.
15. Partnership.
As each partner is ultimate owner of an undivided interest in all the partnership property, none of such
property can be said, with reference to any partner, to be the property of another. Comp. Laws, secs.
5028.24, 5028.25.
16. Statutes.
Penal statutes are not to be extended by inference or implication.
17. Larceny.
Where one partner appropriates partnership property during existence of the partnership, he is not
guilty of larceny, and statute providing that it shall be no defense to prosecution for larceny that property
was partly the property of another and partly property of accused is inapplicable. Comp. Laws, secs.
5028.23, 10323, 10339.
Taber, C.J., dissenting.
Appeal from Fourth Judicial District Court, Elko County; Harry M. Watson, Presiding
Judge.
Robert Elsbury, also known as R.H. Elsbury, was convicted of grand larceny, and he
appeals. Reversed.
Taylor H. Wines and D.A. Castle, both of Elko, for Appellant.
General, of Carson City, and A.L. Puccinelli, District Attorney, of Elko, for Respondent.
OPINION
By the Court, McKnight, District Judge:
Appellant was convicted of the crime of grand larceny. He has appealed from both the
judgment and the order denying his motion for a new trial, and has assigned twelve alleged
errors.
The information charged appellant with having stolen the sum of $1,000 from one S. L.
Corsino.
The evidence shows that at the time of the alleged theft appellant and S. L. Corsino were
general partners, engaged as such in operating a cafe, under written articles of partnership;
that the sum of $1,000, admittedly taken and retained by appellant, constituted part of the
proceeds from the business on deposit in the bank in a checking account in the firm name;
and that the partnership was heavily in debt. It also shows that S. L. Corsino originally
furnished the largest amount of the firm's capital.
The statute defining grand larceny reads as follows: Every person who shall feloniously
steal, take, and carry away, lead or drive away, the personal goods or property of another, of
the value of fifty dollars or more shall be deemed guilty of grand larceny, * * *. Sec. 10323,
N.C.L.
1. Under this statute it is essential that money which has been unlawfully taken and
retained must be the property of another. 36 C.J., page 756, sec. 74; 32 Am. Jur., Larceny,
sec. 22; Burdick, Law of Crime, vol. 2, sec. 515.
But the State relies upon section 10339, N.C.L., which provides that: "It shall be no
defense to a prosecution for larceny * * * that the money or property appropriated was
partly the property of another and partly the property of the accused."
It shall be no defense to a prosecution for larceny * * * that the money or property
appropriated was partly the property of another and partly the property of the accused.
The important question to be decided, therefore, is whether this statute is applicable to a
general partner who takes and retains partnership property during the existence of the
partnership.
The title to partnership property is of a different class and with characteristics quite
distinct from that of the title to property owned and held by individuals. Mattson v. Wagstad,
188 Wis. 566, 206 N.W. 865, 868.
Section 24 of the uniform partnership act reads:
The property rights of a partner are (1) his rights in specific partnership property, (2) his
interest in the partnership, and (3) his right to participate in the management. Sec. 5028.23,
N.C.L. 1931-1941 Supplement.
2. By the statement that one of the property rights of a partner is his right in specific
partnership property is meant simply that a partner, subject to any contrary agreement, has an
equal right with his copartners to use or possess any partnership property for any proper
partnership purpose. Lindley v. Murphy, 387 Ill. 506, 56 N.E. 2d 832, 836.
3-7. Under section 25 of the uniform partnership act, a partner is co-owner with his
partners of specific partnership property holding as a tenant in partnership. The incidents of
this tenancy are such that: A partner, subject to the provisions of the act and to any agreement
between the partners, has an equal right with his partners to possess specific partnership
property for partnership purposes, but cannot otherwise possess same without the consent of
his partners. His rights in specific partnership property are not assignable except in
connection with the assignment of rights of all the partners in the same property, nor are they
subject to attachment or execution upon a personal claim against him. A partner cannot
claim any right under the homestead or exemption laws when partnership property is
attached for a partnership debt.
partner cannot claim any right under the homestead or exemption laws when partnership
property is attached for a partnership debt. On the death of a partner his right in specific
partnership property vests not in the partner's personal representative but in the surviving
partner. A partner's right in specific partnership property is not subject to dower, curtesy, or
allowances to widows, heirs or next of kin. Sec. 5028.24, N.C.L. 1931-1941 Supplement.
Section 26 of the same statute specifically provides:
A partner's interest in the partnership is his share of the profits and surplus, and the same
is personal property. Sec. 5028.25, N.C.L. 1931-1941 Supplement.
8. This was also true long prior to the passage of the act. Fourth National Bank of New
York v. New Orleans & Carrollton Railroad Co., 11 Wall. 624, 20 L. Ed. 82, 83; Rossmore v.
Anderson, D.C.N.Y., 1 F. Supp. 35, 36; Savings & Loan Corporation v. Bear, 155 Va. 312,
154 S.E. 587, 75 A.L.R. 980, 991.
9. Joint ownership and part ownership of personal property are distinguishable from the
relationship of partnership. St. Clair Lime Co. v. Ada Lime Co., 196 Okl. 29, 162 P.2d 547,
549; Jensen v. Wiersma, supra, 185 Iowa 551, 170 N.W. 780, 4 A.L.R. 298, 300; Brindle v.
Hiatt, 8 Cir., 42 F.2d 212, 213; Childers v. Neely, 47 W. Va. 70, 34 S.E. 828, 49 L.R.A. 468,
81 Am. St. Rep. 777; Jones v. Pitcher, 3 Stew. & P., Ala., 135, 24 Am. Dec. 716, 731.
10. It is well settled that the property of a partnership belongs to the firm and not to the
partners. Fourth National Bank of New York v. New Orleans & Carrollton Railroad Co.,
supra, 11 Wall. 624, 20 L. Ed. 82, 83; Krone v. Higgins, 195 Okl. 380, 158 P.2d 471, 472;
Jensen v. Wiersma, supra, 185 Iowa 551, 170 N.W. 780, 4 A.L.R. 298, 299; In re Prince's
Estate, 141 Misc. 600, 252 N.Y.S. 908, 910, reversed on other grounds 238 App. Div. 855,
262 N.Y.S. 785; Brinson v. Monroe Automobile & Supply Co.,
Automobile & Supply Co., 180 La. 1064, 158 So. 558, 96 A.L.R. 1206, 1212; Windom
National Bank of Windom v. Klein, 191 Minn. 447, 254 N.W. 602, 604; Commissioner of
Internal Revenue v. Shapiro, 6 Cir., 125 F. 2d 532, 144 A.L.R. 349, 353; 40 Am. Jur.,
Partnership, sec. 114, note 3; 47 C.J., page 781, note 2.
11. A partner has no individual property in any specific assets of the firm. Commissioner
of Internal Revenue v. Shapiro, supra, 6 Cir., 125 F. 2d 532, 144 A.L.R. 349, 353; In re
Dumarest's Estate, 146 Misc. 442, 262 N.Y.S. 450, 452; Windom National Bank of Windom
v. Klein, supra, 191 Minn. 447, 254 N.W. 602; 40 Am. Jur., Partnership, sec. 114, note 4; 47
C.J., page 781, note 4.
Instead, the interest of each partner in the partnership property is his share in the surplus,
after the partnership debts are paid and the partnership accounts have been settled.
Commissioner of Internal Revenue v. Shapiro, supra, 6 Cir., 125 F. 2d 532, 144 A.L.R. 349,
353; Blodgett v. Silberman, 277 U.S. 1, 48 S. Ct. 410, 72 L. Ed. 749, 757; Breck v. Blair, 129
Mass. 127, 128; Swirsky v. Horwich, 382 Ill. 468, 47 N.E. 2d 452, 453; Preston v. State
Industrial Accident Commission, 174 Or. 553, 149 P. 2d 957, 961; B.A. Lott, Inc. v. Padgett,
153 Fla. 308, 14 So. 2d 669, 670; Fourth National Bank of New York v. New Orleans &
Carrollton Railroad Co., supra, 11 Wall. 624, 20 L. Ed. 82, 83; Krone v. Higgins, supra, 195
Okl. 380, 158 P. 2d 471, 472; Brindle v. Hiatt, 8 Cir., 42 F. 2d 212, 213; Dixon v. Koplar, 8
Cir., 102 F. 2d 295, 297; Savings & Loan Corporation v. Bear, supra, 155 Va. 312, 154 S.E.
587, 75 A.L.R. 980, 991; 47 C.J., page 780, note 99; 40 Am. Jur., Partnership, sec. 114, notes
6-7; Note 6 L.R.A. 740.
Until that time arrives, it cannot be known what property will have to be used to satisfy the
debts and, therefore, what property will remain after the debts are paid. Brindle v. Hiatt,
supra, 8 Cir., 42 F. 2d 212, 213.
12. The amounts of money invested by the partners respectively in the firm would be no
criterion in determining their ownership of the partnership property, for the partner who
furnished in the first instance the largest amount of capital, on final settlement might be found
to have no interest whatever in the assets then on hand. State ex rel. Billingsley v. Spencer, 64
Mo. 355, 27 Am. Rep. 244, 245.
13. When a partnership is admittedly insolvent, as was the partnership in the case at bar at
the time of the alleged larceny, neither of the partners can possibly have any separate interest
in the firm property. Spiro v. Paxton, 3 Lea., Tenn., 75, 31 Am. Rep. 630; Hutzler Brothers v.
Phillips, 26 S.C. 136, 150, 1 S.E. 502, 4 Am. St. Rep. 687, 695.
14. A partner's right in partnership property is a mere chose in action, and carries with it a
right to an accounting. Blodgett v. Silberman, 277 U.S. 1, 48 S. Ct. 410, 72 L. Ed. 749, 757;
In re Dumarest's Estate, supra, 146 Misc. 442, 262 N.Y.S. 450, 452; 47 C.J., page 781, note 6.
15. As each partner is the ultimate owner of an undivided interest in all the partnership
property, none of such property Can be said, with reference to any partner, to be the
property of another.' State v. Eberhart, 106 Wash. 222, 179 P. 853, 854; Ex parte Sanders,
23 Ariz. 20, 201 P. 93, 17 A.L.R. 980, 981; State v. Reddick, 2 S.D. 124, 48 N.W. 846, 847,
8 Am. Crim. Rep. 204; Brill, Cyclopedia Criminal Law, vol. 2, page 1294, note 9; 9 R.C.L.
pages 1281, 1282, note 14; Note 14 Ann. Cas. 724.
In State v. Eberhart, supra, the Washington supreme court held that partnership property,
under a statute identical with sec. 10339, N.C.L., was not subject to larceny by one of the
partners during the existence of the partnership. A contrary ruling was made by the Minnesota
supreme court in State v. MacGregor, 202 Minn. 579, 279 N.W. 372. No other cases
construing the identical statute, or one similar thereto, have been found.
the identical statute, or one similar thereto, have been found.
We are not in accord with the Minnesota decision. In that case the court simply assumed,
without stating any good reason for such assumption, that each partner was a part-owner of
the partnership property; thus reading into the statute by implication something that did not
come within its terms.
The decision is unexplainable, in view of the statement made four years earlier by the
same court, in construing the uniform partnership act, that:
All a partner has now, subject to his power of individual disposition, and all that is
subject to the claims of his separate creditors, in his interest, not in specific partnership
property, but in the partnership itself. Windom National Bank v. Klein, 191 Minn. 447, 254
N.W. 602, 604.
In Breck v. Blair, supra, 129 Mass. 127, the court held that a statute providing a mode of
proceeding when personal property belonging to two or more persons is attached in a suit
against one or more of the part-owners thereof did not apply to partnership property. In
doing so, the court said:
Its language does not aptly describe partners. It speaks only of part-owners,' a term of
common use in the law to denote a class of persons distinct from partners, who own property
jointly, but in a different manner and by a different tenure. * * * Such partner does not own
any specific share in the attached property. His interest is a share of the surplus which may
remain after discharging all partnership demands upon it. * * * The statute does not in its
terms apply to partners, and we find nothing in its provisions which indicates that the
Legislature intended to use the word part-owners' in a sense different from its ordinary
meaning so as to include partners.
If it was the intent of the Nevada legislature to include partners in the statute, it is not easy
to understand why they were not mentioned, or why the intent was left to be discovered by
implication.
was left to be discovered by implication. State v. Eberhart, supra, 106 Wash. 222 179 P. 853,
854; Breck v. Blair, supra, 129 Mass. 127, 128; State v. Butnam, 61 N. H. 511, 60 Am. Rep.
332, 333.
16. It is a general rule of statutory construction that penal statutes are not to be extended
by inference or implication. Ex parte Smith, 33 Nev. 466, 482, 483, 111 P. 930; State v.
Eberhart, supra, 106 Wash. 222, 179 P. 853, 854; 59 C.J., pages 1115-1117, notes 25-28; 50
Am. Jur., Statutes, sec. 414, note 7.
If the different construction placed upon identical statutes by the courts of Washington and
Minnesota be sufficient to raise a doubt as to the legislative intent in adopting the Nevada
statute, it then becomes our duty to so construe the statute as to exclude the idea that it was
intended to apply to partnership property. As said in Ex parte Todd, 46 Nev. 214, 219, 210 P.
131, 132:
It is not our duty to arbitrarily fasten its provisions upon a situation, simply because of
doubt as to the legislative intent. On the other hand, being a criminal provision, and doubt
existing, it is our duty to so construe the statute as to exclude the idea that it was intended to
apply to the situation in hand.
17. Therefore, it seems plain that the statute relied upon by the state does not apply where,
as in this case, partnership property is appropriated by one of the partners during the existence
of the partnership.
This conclusion disposes of the case in appellant's favor, and makes it unnecessary to pass
upon the other alleged errors.
The judgment of conviction and the order denying a new trial are reversed, and the money
heretofore deposited instead of bail will be refunded to the appellant.
Taber, C.J. (dissenting).
The evidence was amply sufficient to justify the verdict in this case if, under our statutes,
one partner can legally be convicted of larceny of partnership funds.
legally be convicted of larceny of partnership funds. When Elsbury, by a fraudulent trick,
appropriated the $1,000, he knew not only that there would be no money left in the
partnership account to be divided between Corsino and himself after payment of creditors, but
also that there would be far less than sufficient money left in that account with which to pay
even them.
It is the opinion of the writer that, under our statutes appellant was lawfully convicted.
This conclusion is based upon the following: (1) That part of section 10339, N.C.L., 1929,
which provides that it shall be no defense to a prosecution for larceny that the money
appropriated was partly the property of another and partly the property of the accused; (2) that
part of section 25 of chap. 74 of the 1931 Stats. of Nev., p. 112, which reads: A partner is
coowner with his partners of specific partnership property holding as a tenant in partnership.
N.C.L., Supp. 1931-1941, vol. 1, section 5028.24, p. 660; (3) the case of State v. MacGregor,
202 Minn. 579, 279 N.W. 372.
Ducker, J., being ill and unable to participate in this opinion, the Governor designated
Hon. Wm. McKnight, Judge of the Second Judicial District Court, to sit in his place.
____________
63 Nev. 473, 473 (1946) Norman v. City of Las Vegas
BARBARA JEANE NORMAN, C.C. McGOVERN, BARTENDERS' UNION, LOCAL 165,
and CULINARY WORKERS, LOCAL No. 226, Appellants, (Plaintiffs), v. CITY OF LAS
VEGAS, NEVADA, a Municipal Corporation, JOHN DOE and
RICHARD ROE, Respondents (Defendants).
No. 3470
December 30, 1946. 175 P.2d 429.
In action to enjoin enforcement of ordinance of city of Las Vegas requiring persons of enumerated
classifications to submit to fingerprinting, order of supreme court that city refrain from enforcing
judgment of lower court vacating and setting aside temporary restraining order and staying proceeding in
lower court on that judgment, simply suspended proceedings in the lower court and preserved the status
quo pending determination of appeal, and did not reverse or annul the lower court's order or restore
earlier temporary restraining order.
Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge.
Action by Barbara Jeane Norman, C.C. McGovern, Bartenders' Union, Local 165, and
Culinary Workers, Local No. 226, against City of Las Vegas, Nevada, a municipal
corporation, John Doe and Richard Roe, to enjoin enforcement of a city ordinance requiring
employees of gambling houses, taxi drivers, and employees of establishments where alcoholic
beverages are sold at retail for consumption on the premises, to register with the police
department of the city and submit to fingerprinting, thumb printing, and photographing. On
defendant's motion for an order vacating and setting aside order granting a stay of
proceedings. Decision in accordance with opinion.
Morse & Graves, of Las Vegas, for Appellant.
C. Norman Cornwall, of Las Vegas, for Movent.
OPINION
The city of Las Vegas enacted an ordinance requiring, among other things, that employees
of gambling houses, taxi drivers, and employees of establishments where alcoholic beverages
are sold at retail for consumption on the premises, register with the police department of said
city and submit to finger printing, thumb printing and photographing. Appellants, plaintiffs in
the court below, commenced an action in the Eighth judicial district court, Clark County,
asking that court to enjoin the enforcement of said ordinance upon the alleged ground that
certain sections of it are unconstitutional. A temporary restraining order was issued. The city,
defendant below and respondent here, demurred to plaintiff's complaint. On August 14, 1946,
the district court vacated and set aside said temporary restraining order, and sustained
defendant's general demurrer.
A stay of proceedings was refused by the lower court. Plaintiffs did not plead over, but
filed their bill of exceptions in this court September 5, 1946. On the same day appellants
(plaintiffs) moved this court for an order staying all proceedings on the part of the
respondent under the judgment and order entered in the lower court on the 14th day of
August, 1946, * * * until the determination of the appeal taken from said judgment and order
by the appellants * * *. On said 5th day of September 1946 this court, pursuant to said
motion, ordered that the respondent desist and refrain from enforcing, or attempting to
enforce, the aforesaid judgment and order of the lower court herein, and that all proceedings
in the lower court on said judgment and order be, and the same are hereby stayed until the
further order of this court.
Thereafter the respondent moved this court for an order vacating and setting aside its said
order granting a stay of proceedings. The motion is made upon two grounds: 1. That the
aforesaid Order of this Court dated and entered herein, on the 5th day of September, 1946,
is directed to a nonexistent judgment since no judgment has been rendered in this action
in the lower Court. 2. That the Order of the lower Court entered on the 14th day of
August, 1946, vacating and setting aside the Temporary Restraining Order is
self-executing and requires no positive action for its enforcement."
dated and entered herein, on the 5th day of September, 1946, is directed to a nonexistent
judgment since no judgment has been rendered in this action in the lower Court. 2. That the
Order of the lower Court entered on the 14th day of August, 1946, vacating and setting aside
the Temporary Restraining Order is self-executing and requires no positive action for its
enforcement.
In opposition to respondent's motion appellants contend that the district court order of
August 14, vacating and setting aside the temporary restraining order, was rendered
inoperative and ineffectual by this court's stay order of September 5. They maintain that said
stay order saved the temporary restraining order from dissolution as much as a money
judgment would be prevented from execution by such an order. The temporary restraining
order, they argue, remains effectual by operation of said order of this court.
We do not agree with appellant's position. The effect of the stay order was simply to
suspend proceedings in the lower court and preserve the status quo pending the determination
of the appeal. It did not reverse, annul or undo the district court's orders of August 14, nor did
it restore that court's earlier temporary restraining order.
The district court did not order the city to enforce the ordinance. If, after August 14, the
city had gone ahead to enforce or attempt to enforce it, such action would have been taken
directly under the authority of the ordinance itself, not by way of enforcing, or attempting to
enforce, the aforesaid judgment and order of the lower court.
Counsel will remember the circumstances under which the stay order was signed. This
writer, who signed the order, expressed serious doubt at the time regarding the form in which
it had been drawn. The court now, after due deliberation, is of the opinion that the order does
not have the effect of prohibiting the city from enforcing the ordinance pending the appeal.
The oral argument on appeal in this cause has been set for the 7th proximo.
set for the 7th proximo. If at any time before the final determination of the appeal the city
begins to enforce or attempt to enforce the ordinance, this court will consider an application
for an order requiring it to desist.
That part of the stay order which requires the respondent to desist and refrain from
enforcing, or attempting to enforce, the aforesaid judgment and order of the lower court is
hereby ordered vacated and set aside; as to the other part of the order, the motion to vacate
and set aside is denied.
Eather, J., concurs.
Horsey, J., did not participate.
____________
63 Nev. 477, 477 (1946) In Memoriam, Edward A. Ducker
PROCEEDINGS
in the
SUPREME COURT OF THE STATE OF NEVADA
Friday, November 1, 1946
Present Hon. E.J.L. Taber, Chief Justice;
Hon. Chas. Lee Horsey, Associate Justice;
Hon. Edgar Eather, Associate Justice;
Committee, and Officers of the Court.
The committee heretofore appointed to draft appropriate resolutions expressing the sorrow
of the Court and Bar due to the death of Honorable Edward A. Ducker, late Chief Justice and
Justice of this Court, through its chairman, Wm. J. Forman, presented the following:
MEMORIAL
To the Honorable, the Supreme Court of the State of Nevada:
This Honorable Court has previously appointed this committee to draft and present
suitable resolutions, expressing the high esteem in which the late Justice Ducker of this court
was universally held, and the sorrow of the members of the State Bar of Nevada because of
his passing.
At this time we desire to present to the Court the following expression of the Bar of the
State of Nevada on the demise of Justice Ducker, and the high regard and affection in which
he was held by all of the people of the State of Nevada.
HONORABLE EDWARD A. DUCKER
Justice Edward A. Ducker was born February 26, 1870, at Visalia, California. At the age
of seventeen he came to Nevada, and, except for one very brief period thereafter,
continuously remained a resident of Nevada. In his youthful years and until he became
engaged in the intensive study of law, he followed the typically western occupation of
cowboy and range rider.
engaged in the intensive study of law, he followed the typically western occupation of
cowboy and range rider. Prior to 1902, he studied law in the office of Clarence VanDuzer, of
Winnemucca, Nevada, and completed his preparatory legal study in the office of the late
Judge W. S. Bonnifield, of the same place. He was admitted to the Nevada Bar on January 20,
1902. In the year 1903 he was married to Miss Dollie B. Guthrie. Only shortly more than two
years after his admission to practice, he was elected District Attorney of Humboldt County, in
which office he served three consecutive two-year terms. In 1920 he was, by election of the
people, elevated to the office of Judge of the District Court of that district, in which office he
served for eight years. In 1918 he was elected Justice of this Court, and was successively
thereafter, without opposition, elected to that office, until the date of his death, on August 14,
1946.
He is survived by his widow, Mrs. Dollie Guthrie Ducker, and his three children, Edward
A. Ducker, Jr., Robert Varian Ducker, and Mrs. Merian Ducker Edwards.
During his lifetime he occupied a prominent place in the Masonic Order of Nevada. He
was Grand Master of the Nevada Grand Lodge of Masons in 1924-1925. He was Grand High
Priest of the Grand Chapter of Royal Arch Masons in 1927-1928; Grand Commander of the
Grand Commandery of Knights Templar in 1940-1941, member of Kerak Temple of the
Shrine, Knights of Constantine, Eastern Star, Knights of Phthias, and Fraternal Order of
Eagles.
Throughout Justice Ducker's life, he was a profound student. The remarkableness of his
scholastic achievements is aptly stated in a resolution adopted by the Forth-first Session of
the Legislature of the State of Nevada. In this memorial to Justice Ducker on the occasion of
his seventy-third birthday, the following appears:
The early years of Judge Ducker's life were spent with saddle and reata riding the
great cattle ranges of Nevada, a youth among those stalwart men who had even
then established the great herds of livestock upon which the prosperity of our State
so much depends, all of which instilled in him the rugged virtues of the pioneers'
code of law;
cattle ranges of Nevada, a youth among those stalwart men who had even then
established the great herds of livestock upon which the prosperity of our State so much
depends, all of which instilled in him the rugged virtues of the pioneers' code of law;
During his lonely vigils in the silence of mountain and desert he became imbued
with the ambition to study and to be admitted to the practice of law, which ambition he
pursued with unswerving directness until the ambition became an accomplished fact;
The achievements of Judge Ducker are the more outstanding when one appreciates
that his alma mater was the buckaroo camp and cattle trail, his desk a creaking saddle,
and his campus the limitless stretch of sage and pine.
Throughout his life he was a lover of the outdoors and was an ardent follower of the
outdoor sports of fishing and hunting.
While born in the State of California, it was the State of Nevada he claimed by adoption. It
was here, by choice, that he established his home and raised his family. It was here he spent
the greater part of his life, and it is upon the records of this Court that the most enduring
monument of his labor is inscribed.
His long career of judicial service to the people of Nevada was marked by a devotion to
his public duty, the justice of his decisions, and his keen insight of the legal principles
involved in the many cases in which he participated as the final arbiter of justice in this State.
His long term on the Bench is in itself a monument of his fitness and of his personal and
judicial character.
The many opinions written by Justice Ducker as a member of this Court show lucidity of
thought and ability of expression in simple and concise language.
There is never doubt as to what Justice Ducker intended to say; there is also clarity
disclosing complete honesty of thought. He was brief and sententious in his statement of facts
and in the application of judicial principles, and yet his decisions clearly and concisely
discussed and applied the necessary facts and legal principles for a proper solution of the
issues involved.
principles, and yet his decisions clearly and concisely discussed and applied the necessary
facts and legal principles for a proper solution of the issues involved. In a word, he possessed
the faculty of condensation.
The loss to the Bar and the people of the State of Nevada in his passing can only be
consoled by the thoughts of their good fortune in having the benefits of his talents for such a
long period of time.
Dated this 1st day of November, 1946.
Wm J. Forman, John R. Ross,
A.L. Haight, Alan Bible,
M. A. Diskin, Merwyn H. Brown.
Chairman Wm. J. Forman, on behalf of the committee, moved that the memorial be spread
upon the minutes of the Court, and that a copy thereof be forwarded to the family of Justice
Ducker. It was so ordered.
It was also ordered that the following memorial adopted by the White Pine County Bar
Association and joined in by the members of the Lincoln County Bar, be spread upon the
minutes of the Court:
MEMORIAL
To the Honorable, the Seventh Judicial District Court of the State of Nevada, and the
Honorable Harry M. Watson, Judge thereof:
The undersigned, the present members of the White Pine County Bar Association, other
than Your Honor, named by the Court at a special session held August 19, 1946, to prepare a
resolution of respect in memory of the late Chief Justice and Justice of the Supreme Court of
Nevada, Edward A. Ducker, with the undersigned secretary of the Association to draft such
resolution, which was to be joined in by Messrs. A.L. Scott and Jo G. Martin of the Lincoln
County Bar, present at that session, report as follows:
Judge Ducker was seemingly not one given to publicity as to his life story. A brief sketch
and portrait appear in the History of the Bench and Bar of Nevada, published in 1913.
published in 1913. In the little over one hundred words there we find most of the definite
details of his early life and background. The remainder of this memorial is collected from
various sources.
Edward Augustus Ducker was born Febrary 26, 1870, at Visalia, California, the son of
Benjamin F. and Augusta Woodward Ducker. He was educated in the public schools of
Modesto, California. He moved to Nevada in 1887, and studied law in the office of C. D.
VanDuzer, of Winnemucca, and, later, in the office of Judge W. S. Bonnifield, of the same
place. He was admitted to the Bar of Nevada January 20, 1902. He was married March 30,
1903, to Dollie B. Guthrie. He was District Attorney of Humboldt County from 1905 to 1911,
and Judge of the Sixth Judicial District Court to the date of that publicationactually until
his election to the Supreme Court in November, 1918. These facts and his fraternal
affiliations and political faith comprise the entire autobiographical details.
Volume 55 of Nevada Reports, issued in 1935, has an appendix called Members of the
Nevada Bar, the roll of attorneys and dates of their admission to the Supreme Court of
Nevada, arranged alphabetically and in chronological order. Apparently it covered both the
living and the dead, going back to June 2, 1862. A rough count of the entire list shows that
Judge Ducker was the 523d in order of seniority. Presumably many, if not most, of his then
living seniors in service have since obeyed the last summons and passed into the presence of
the Highest Tribunal. Any future chronicler of the annals of our Bench and Bar must
emblazon the name of Edward A. Ducker on many a page.
In our Court session first mentioned there were talks by those who had known him and
prized him as a friend for from twelve to thirty-eight years. We heard of his youth and early
manhood, coming up the hard way through the diversified occupations of the time to his seat
upon the Supreme Bench, in January 1919. He first served as Chief Justice in 1923-1924,
again in 1929-1930, and last in 1935-1936. It was said in our session that, according to
Brother Scott's recollection, Judge Ducker had never been opposed for reelection through
all the years.
session that, according to Brother Scott's recollection, Judge Ducker had never been opposed
for reelection through all the years.
Judge Ducker died in harness at Carson City, on August 14, 1946. What seems to be his
last official published opinion was in Koyen et al. v. Lincoln Mines, Inc., given June 26,
1946. (L 71 Pac. 2d). He is survived by his widow and two sons, Edward A., Jr. And Robert
Varian, and a daughter, Merian, one of whom, Edward A. Ducker, Jr., follows his illustrious
father's footsteps in the paths of the law.
Your committee feel that, more fittingly than by any words of theirs, the life and character
of Judge Ducker can be characterized by applying to them excerpts from his own words in the
memorial to the late Chief Justice and Justice Benjamin W. Coleman some seven and a half
years ago (58 Nev. 495-497), paraphrased slightly only when necessary:
He devoted many years of his life to the service of this State and died in that service.
They were years that were effective and fruitful in intellectual achievement. * * * The
bright history of our Supreme Court has been greatly enriched by reason of the faithful
and intelligent service he rendered here during a long period of over twenty-seven
years. His judicial opinions rank very high in the legal world. They are couched in
simple and very forceful language, denoting clearly what was intended and decided.
They bear the impress of a trained intellect.
* * * * *
His private character, like his public character, was one of stern integrity. He was a
man of principle, purpose, and will, impulsive by nature, yet withall kindly and
considerate in disposition. The rich humanity of his character, the charitable impulses
of his heart, were manifested by many generous acts. His rare conversational powers
and altogether charming personality made him a delightful companion in private and
social circles.
charming personality made him a delightful companion in private and social circles. He
was devoted to his family, to whom he leaves the rich heritage of a spotless name. He
was deeply interested in the welfare of his neighbors and the people generally. * * * He
died in the fullness of his fame, leaving no unfinished work of his for others to do.
Justice Ducker kept faith and finished the course in a courageous, manly, and forthright
manner. He has taken his place in the temple of memory, beside the former great jurists
who have adorned this Bench.
* * * Nothing low or mean ever came near the mind or heart of Justice Ducker. He
lived well. He laughed freely. H thought deeply, and he worked hard. He died * * * rich
in the golden opinions of those he served.
In addition to the above memorials, members of the Bar and of the Court addressed the
Court as follows:
M. A. Diskin, Esq.:
On an occasion of this kind, words are a poor vehicle to express either the sadness we feel
at the passing of Justice Edward A. Ducker, or the tribute to his memory we wish to have
inscribed on the records of this Court.
I first met Judge Ducker in Esmeralda County in the year 1913 when he was called there to
preside in a criminal case which I was prosecuting as District Attorney.
I was, as a young man, greatly impress with his ability, fairness, and impartiality in the
trial of this case. So much so that I closely followed his public life for the past thirty-three
years, and was an ardent admirer of the progressive stages of his advancement.
Few men in public life enjoyed the confidence of the people of this State as did Judge
Ducker. His repeated elections as a member of this Court, many times without opposition, is
a glowing tribute of their confidence in his ability and fairness. He devoted the greater part of
his life to the service of this State, and died in that service.
life to the service of this State, and died in that service.
He possessed a demeanor which commanded respect for the Court. He had the ability of
expressing his conclusions in simple and forceful language; a knowledge of the law which
commanded respect for his rulings; a judicial temperament, which gave him the godly
attribute of deciding impartiallythese qualities he developed to a remarkable extent.
His well acquired success emphasized forceably to the young men what may be
accomplished by right living, self-denial, close application, and honest endeavor, and the
success he attained emphasized the opportunity that is afforded under this great Government
of ours.
In him passing the judiciary of this State has lost its dean; the Bar has lost an able
advocate; the people of this State have suffered the loss of one of its loyal and outstanding
citizens; his family, a loving and devoted husband and father.
His spirit will always remain with us. He leaves behind an everlasting monument recorded
in the pages of the judicial records of this Court that will serve to guide the coming
generation in the sound principles of justice and equity. To his family he leaves the rich
inheritance of a spotless name.
Hon. Merwyn H. Brown, Judge of the Sixth Judicial District Court:
Your Honors, first I want you to know how much I appreciate your kindness and the honor
you have conferred upon me by my appointment as a member of the committee to present this
resolution as a memorial to Honorable Edward A. Ducker, especially so, on account of the
fact that he came from the county in which I was born and in which I have so far lived.
We always considered him a native. It was there that he began his career in life, studied
law, and was admitted to practice. It was there that he commenced his work as a public
servant and demonstrated his ability as such while serving as District Attorney and District
Judge. The people of Humboldt County were proud of him and the people of the State of
Nevada evidenced their faith in him by elevating him to this high office as a member of
the Supreme Court, which office he held for so many years without opposition.
evidenced their faith in him by elevating him to this high office as a member of the Supreme
Court, which office he held for so many years without opposition.
My first recollections of Judge Ducker were gained when I was a student in school. Those
impressions were that he was a man who enjoyed the highest respect and esteem of the people
in the community. He was often referred to by them as a good judge.
Later, after I commenced the practice of law I became associated with him professionally.
He was a member of the Supreme Court at the time I was admitted to practice, and
participated in the examinations. He was kind, considerate and understanding. But, above all,
I learned to know him as a friend. As the years passed by there developed a close friendship
between the two of us. He was a man in whom you could place implicit trust and faith. He
was a man to whom you could go for counsel and advice with the assurance that you were
welcome and that he had the time and the patience to listen to you. He was a person of sound
judgment and one who had the courage to tell you and warn you if he believed you were
wrong or that you were making a mistake.
He was a sportsman and loved the outdoor life. Every year he returned to Humboldt
county for his deer hunting trip.
As a jurist the record of his opinions written while a Judge on this Court will stand as a
permanent memorial as to his splendid legal ability and his fine sense of fairness and justice.
In his passing, I, personally, have lost a true and sincere friend. We, of the Bench and Bar,
will ever remember him as an outstanding character and member of our profession, and the
people of the State of Nevada will miss him as a faithful servant and a grand citizen.
A. L. Haight, Esq.:
I have nothing prepared for this occasion and I find it difficult to add to what has already
been said concerning Judge Ducker. Also, it seems to me that whatever we may say here may
be more or less superfluous, because the ability, the sincerity, the great simplicity, and the
other outstanding characteristics of this fine man are so well recognized and understood,
not only by all of us present, but also by the people generally throughout the State of
Nevada.
because the ability, the sincerity, the great simplicity, and the other outstanding characteristics
of this fine man are so well recognized and understood, not only by all of us present, but also
by the people generally throughout the State of Nevada.
I first knew Judge Ducker in 1911, during the first year of his service upon the Bench of
this State, and for thirty-five years after that I am sure that I enjoyed his friendship and
confidence.
Judge Ducker was a continuing inspiration to the ambitious youth of this State, and his
enthusiasm for life set a pattern which we might all well emulate. He was an outstanding
example of integrity and real virtue and personified our conception of what a public servant
should be.
It is a common saying, and perhaps a somewhat trite expression, that no man is
indispensable, yet it is my judgment that Judge Ducker's place on this Court, which attained
its greatest eminence in the history of our State during the period of his service upon it, and
his place in the public life of Nevada will remain unfilled, if not forever, at least for many
years to come.
While we, of course, greatly deplore the passing of so splendid a man, I know that all of
us, and many, many other people throughout the State, rejoice in the fact that they have had
the opportunity, over a long period, to be associated with him, to enjoy his friendship and to
benefit by his service.
Alan H. Bible, Attorney General of Nevada:
Some men are born great; some achieve greatness, and others have greatness thrust upon
them. It seems to be that Judge Ducker's greatness was achieved by hard work faithfully
applied over a long road.
I first became acquainted with Judge Ducker approximately twenty-five years ago, when
we often hunted ducks and pheasants together in the Fallon area. I knew him as a splendid
sportsman and lover of the outdoors. Later that acquaintanceship grew and ripened into a
close friendship during the many times that he visited with his son at the University of
Nevada.
We in the Attorney General's office have become very closely acquainted with the
members of this Court, both in practicing before it and in our daily association with its
members over these many years. Personally, I have visited Judge Ducker almost daily over
that period, and, through that association and through our practice before this Honorable
Court, we came to esteem him as a great man, a great jurist, and a great friend. I think I know
something of his philosophy of life. It was a philosophy of industry, personal integrity, and
practical humanity. I have talked to him many, many times, and I would, if I could, pattern
my own life after the great example which he has setthat of a loving and devoted husband
and father, a man who put his God, his country, and his family first. I know of the effort he
has made, at all times to discover and uphold the right, and I know of the work that he has
done as a jurist on this Bench.
Mention was made by the previous speaker of the inspiration he gave to young men. I
know of many occasions on which Judge Ducker has quietly helped a young man starting on
his career in life. He would go out of his way to help a young man struggling alone,
counselling him against the errors and pitfalls in the practice of law which he himself
overcame and avoided only by unaided industry and determination.
As has been said, too, his memorial has been indelibly written in the Reports of this Court.
They reveal him as a great jurist and a great man. It may be said of him: Well done, thou
good and faithful servant. This is the only reward he sought; the particular reward he earned,
and the reward which all of us, who knew him and his work so well, now unite to bestow
upon him.
John R. Ross, Esq.:
One cannot help but feel at times such as this that words are rather futile things with which
to portray the emotion they are called upon to express. Yet the expression of warm and
sincere appreciation and admiration for the late Justice Ducker, perpetuated in the printed
page, will stand an imperishable monument to the memory of this man we mourn long after
we who are present today will have been called from the Courtroom of Life.
the memory of this man we mourn long after we who are present today will have been called
from the Courtroom of Life.
We are reminded on occasions such as this that the span of life is of brief duration. Quietly
we come, tarry but a moment, then quietly depart. The greatness of men is not arrived at from
the richness and grandeur of their possessions, but rather on the basis of what they may have
contributed to their fellows by way of courage, loyalty, sincerity, and an adherence to that
way of life so simply expressed in the Golden Rule. Justice Ducker was sincere, honest, and
courageous. These rugged virtues made of him a great man, whose philosophy, expressed in
the opinions of this Court over a period of more than a quarter of a century, is a rich
inheritance to the men and women of this State of Nevada.
In the remarks that have been prepared by your committee there was set out a paragraph
from a memorial resolution passed by the Forty-first Session of the Nevada Legislature. As a
bill drafter for the Senate during that legislative session I prepared that resolution. Every word
came from my heart and was based on my personal knowledge of this man and of his long life
of service to the people and the Bench and Bar of Nevada. I join in the thought expressed by
one of my colleagues, that no more fitting epitaph could be inscribed above Justice Ducker's
grave than these wordsWell done, good and faithful servant.
It will be many years before I can stand before this Bench without, in memory, seeing the
stern, yet kindly, face of Justice Duckerwho was my friend.
Wm. J. Forman, President of Nevada State Bar:
My first acquaintanceship with Justice Ducker was on the occasion when I applied for
admission to the State Bar of Nevada. He sat as a member of this Court, which at that time
conducted the bar examinations. The first case in which I ever participated was in this Court
and over which he then presided as Chief Justice.
I always deeply appreciated the courtesies he extended to me and to other new practitioners
and the sympathy with which he viewed our struggles. In the following years I appeared
before Justice Ducker on many occasions, and I too shared with all the other members of the
Bar the highest respect and regard for his fairness, learning, and legal ability.
Some of my fondest memories of Justice Ducker relate, however, to another phase of his
active life. For a period of years, when I lived in Carson City, I had the privilege of enjoying
his companionship for many happy hours along the fishing waters of this area. He was an
expert fly fisherman. Between the months of May and October of each year, with his fly rod
and creel, he was a familiar figure to every rancher and ranch hand of those ranches that
border the trout streams of western Nevada. He enjoyed to the fullest extent these frequent
fishing excursions and the companionable chats that he had with those he met upon these
excursions.
He will be missed by many persons in many walks of life. To many of these persons he
will be remembered, and I believe he would with to be remembered, not alone for his long an
distinguished career of public service, but also as a great outdoors man and nature lover, a
true sportsman and a sincere friend.
George P. Annand, Deputy Attorney General of Nevada:
To this Honorable Court, may I say: One of the blessings of old age is fond memories. The
privilege, I enjoyed, of a long-time friendship with Justice Ducker, a noble gentleman and an
eminent scholar, is outstanding as a cherished memory.
Homer Mooney, Deputy Attorney General:
I feel honored to be privileged to join in this tribute to the late Justice Ducker. I knew him
a long time, beginning when I was a newspaper man. As such I think I learned to know
Justice Ducker better than even in my modest experience as a lawyer.
It has been my experience with men in public life that the greatest men are the simplest.
the greatest men are the simplest. Justice Ducker was friendly, sincere, unpretentious, and his
industry and scholarship are well revealed by his court opinions. I can testify that he never
allowed any partisan or political considerations to color his conduct on the Bench.
His passing is a great loss to this State, his family and friends, which is compensated only
by the high standard of living he set, as an example and inspiration to those who remain.
Justice Chas. Lee Horsey:
Although, during all the twenty-eight years of Justice Ducker's incumbency as Justice and
Chief Justice of our Supreme Court, I have been sufficiently familiar with his services to be
conscious of his splendid ability and noble character, it was only slightly more than one year
ago that, upon becoming an Associate Justice of this Court, I became intimately associated
with him. Justice Ducker, upon my becoming a member of the Court, immediately extended
to me the hand of sincere friendship, fellowship, and cooperation.
His humility and self-effacement were such that, even though my judicial experience was
of short duration, compared to his long years of distinguished juristic service, he, most
generously, invited my counsel and assistance concerning cases which had been assigned to
him for the preparation of the opinions of the Court. I found our work together not only most
congenial but, to me, it proved the source of much intellectual inspiration and enrichment,
and the mutual friendship which had existed for many years was so strengthened and
intensified by our companionship in judicial service upon the Court that to me it became one
of my most precious possessions.
Justice Ducker possessed, to an extraordinary degree, many of the noble qualities of
human character. His early life upon the range brought him in close contact with the majestic
mountains, the beautiful valleys, and the peaceful desert solitudes of his beloved Nevada.
Often, like the shepherds of old, he slept in the open, upon the bosom of Mother Earth for
his bed, with a blanket for a pillow, and guarded only by the starry sentinels of the
Heavens keeping watch over his temporary resting place.
upon the bosom of Mother Earth for his bed, with a blanket for a pillow, and guarded only by
the starry sentinels of the Heavens keeping watch over his temporary resting place. He dearly
loved the great outdoors, and throughout the later years, when engaged in legal toil most of
the time, his never failing means of diversion and recreation was hunting and fishing. It was
only to be in a position affording the opportunity, power and influence which would enable
him the more effectively to serve his State and his people, that Justice Ducker made what, to
him, was the great sacrifice of abandoning life in the great outdoors, which he loved so well,
for the cloistered seclusion of the law. We may well believe it was while in repose, through
the long vigil of some night, under the starry canopy of the skies, that Justice Ducker first
conceived the idea to use the law as the instrumentality by which he could best contribute to
the welfare of mankind.
His laudable ambition to reach, by his own efforts, a position of greater usefulness and
eminence, in spite of his very humble youthful beginnings as a shearer of sheep and as a
cowboy upon the range, and his dauntless courage in making his dreams come true, to the
everlasting glory of his State and the benefit of humanity, serves, not only now, but,
throughout future years, will serve, as an unfailing demonstration, to deserving youth in
humble circumstances, of the possibilities of worthwhile achievement in democratic America.
Indeed, Justice Ducker's record of high achievement under adverse circumstances is
calculated to inspire, not alone the youthful, but, also, those of more mature years, to greater
effort and more exalted service in behalf of humanity.
As a man, Justice Ducker was kind, generous, and unselfish, to his family, his friends and
all mankind.
As a citizen, he possessed a pure, exalted patriotism, and a sincere devotion and loyalty to
his Nation and his State that is unexcelled.
As a diligent student of the law, he achieved scholarly attainment. For more than thirty-six
years upon the District and Supreme Courts of this State, Justice Ducker's splendid legal
ability, his worthy ambition to accomplish, for the benefit of his fellow citizens, the most
just and equitable results possible of human achievement, and his readiness to sacrifice
ease and comfort to the proper discharge of his official duties, enabled him to reach a
position of eminence, as a jurist and public servant, which only an exceptional few are
able to attain.
District and Supreme Courts of this State, Justice Ducker's splendid legal ability, his worthy
ambition to accomplish, for the benefit of his fellow citizens, the most just and equitable
results possible of human achievement, and his readiness to sacrifice ease and comfort to the
proper discharge of his official duties, enabled him to reach a position of eminence, as a jurist
and public servant, which only an exceptional few are able to attain.
His judicial opinions reveal the operative processes of a mind searching, amidst the
multitude of intricacies and technicalities of the law, for the fundamental principles of simple
truth and justice. Justice Ducker's conclusions and decisions reflect a high degree of success
in achieving, in the administration of the law and its application to the concrete facts of the
cases before the Court, his primary objective, which was to accomplish the highest measure
of justice and equity possible in the human relations involved in such cases.
I feel I could do no better, in this humble attempt to pay tribute to a most able and eminent
jurist, who was also a very great man and a real gentleman, than to quote, with slight
paraphrasing and the modification necessary in substituting months for years as to the
element of time, a portion of Justice Ducker's expressions upon the occasion of the memorial
exercises to Justice Benjamin Wilson Coleman, held in this courtroom on March 28, 1939.
The following words of Justice Ducker, which he said of Justice Coleman on that occasion, I
can correctly apply to my relationship with Justice Ducker, and from the bottom of my heart,
say:
The months we spent together in this Court were happy months of congenial
employmenthappy months of striving and cooperating towards the objectives of this
Supreme Tribunal. They brought us into the closest friendship. I shall miss him in the
daily round of life as one familiar and beloved. His figure in the moving crowd before
my memory will always speak of that rare fellowship which I had the precious
privilege to enjoy.
precious privilege to enjoy. Nothing low or mean ever came near the mind or heard of
Justice Ducker. He lived well. He laughed freely. He thought deeply, and he worked
hard. He died poor in worldly goods but rich in the golden opinions of those he served.
The foregoing beautiful sentences of Justice Ducker, in speaking of Justice Coleman,
reminds one of the words of wisdom contained in the first verse of the twenty-second chapter
of the Proverbs of Solomon, which are:
A good name is rather to be chosen than great riches, and loving favour rather than
silver and gold.
Those so dear to him, whom Justice Ducker has been compelled to leave here upon this
earth for a brief interlude, may well feel consoled in the thought that his honor and integrity
were as immovable as the eternal hills to which he looked for inspiration. His family and
relatives may take consolation, also, in the knowledge that Justice Ducker, whose cherished
memory we honor here today, left the priceless heritage of a good and illustrious name, and
that he possessed, to an unusual degree, the trust and confidence of his fellow citizens, and
their loving favor and affection.
Indeed, the facts of Justice Ducker's life, and his remarkable career, have contributed much
to adorn the pages of the history of Nevada. The great privilege, afforded the members of the
Bench and Bar of this State, of close association with our departed friend and brother, will
always be enshrined in our hearts in loving memory.
Justice Edgar Eather:
I do not know that there is anything I can add to the splendid tribute which has been paid
to Judge Ducker, both in the resolutions and the remarks that have been presented here.
I will say, however, that the loss of Judge Ducker was a great loss to the State; it was a
great loss to the profession; it was a great loss to his family; it was a great loss to his
friends.
was a great loss to the State; it was a great loss to the profession; it was a great loss to his
family; it was a great loss to his friends.
To me, he was an ideal man, an ideal citizen, an ideal judge.
The office of Justice of the Supreme Court came to Judge Ducker covered with honor. He
left it as honorable as he found it.
He rendered a great service to this Court and to this State. The Bench lost a great Justice,
and we are proud of the record which he made for himself, for the Court, and for the State.
We shall miss him.
Chief Justice E. J. L. Taber:
I thank you all for the beautiful words of tribute that have been paid to our beloved late
associate.
Judge Ducker was a great man, a good man, and a good judge. I have known him for at
least thirty-five years, and, as the years went by, a friendship grew up between us, and became
greater and stronger as the years went by. I am proud of it, and will always be proud of it.
I have often wondered as to the remarkable memory of Judge Ducker, who, without the
benefit of a university education, mastered the English language to a much higher degree than
a majority of those who go to all the colleges and all the schools and universities. He not only
studied diligently, but memorized what he read, and often quoted, informally, from opinions
of this Court decided many years ago, even before he came here. His memory of our State
Constitution, of our statutes, and the decisions of this Court, was almost phenominal.
We all know it was about this time every year he returned, or shortly had returned, from
his annual deer hunt. In that connection, and in connection with his remarkable memory, I
have often thought of the last line of that beautiful little poem entitled Requiem, by Robert
Louis Stevenson, one of Judge Ducker's favorite literary compositions, which he often
quoted.
literary compositions, which he often quoted. And I now, again, think of the last line of that
poem:
And the hunter home from the hill.
Judge Ducker was distinguished by his loyalty; loyalty to his country, his State, his family,
and his friends, his loyalty to the legal profession and, particularly, to this Court. During this
past summer, when I was visiting with him at his home, I know he did not, at that time, feel
he would die. But we were talking about the business of this Court, and I have a distinct
picture of Judge Ducker, his fear he would not recover sufficient strength to continue his
services in this Court, that he might have to retire. And while we were talking he betrayed
emotion to me, for the first time, because he was a strong man; he was not over sentimental.
And he said: Judge Taber, please pardon me, but I am proud of our Court. I am proud of our
Court. And, Judge Ducker, we are proud of you.
I believe it has already been ordered that the resolutions be spread upon the minutes of the
Court, and that copies be sent to the family of the late Judge Ducker. And may I thank the
members of the family who have so kindly come to be present with us today. The Court
further orders that the resolutions be published in the next volume of the official Nevada
Reports.
And now, gentlemen of the committee, I extend the thanks of the Court to each and every
one of you. It is hard to tell you how much we appreciate what you have done and what a fine
resolution you have presented.
In further respect to the memory of the Honorable Edward A. Ducker, late Justice and
Chief Justice of this Court, the Court now stands adjourned.
____________
63 Nev. 497, 497 (1946) In Memoriam, E. J. L. Taber
PROCEEDINGS
in the
SUPREME COURT OF THE STATE OF NEVADA
Friday, May 23, 1947
Present Hon. Chas. Lee Horsey, Associate Justice;
Hon. Milton B. Badt, Associate Justice;
Committee, and Officers of the Court.
Justice Horsey:
We regret to announce that our Chief Justice, Hon. Edgar Eather, is ill and unable to be
here today, although he would very much like to be here.
Members of the Court and Bar, relatives and friends of the late Justice and Chief Justice of
this Court:
This is the time heretofore set by the Court for the committee appointed to draft
appropriate resolutions expressing the sentiments of the Court and Bar upon the death of Hon.
E. J. L. Taber, formerly a Justice and Chief Justice of this Court, to present to this Court their
memorial. I will ask Mr. Wm. J. Forman, chairman of the committee, to kingly present the
memorial.
Whereupon Wm. J. Forman, Esq., chairman of the committee, presented the following:
MEMORIAL
To the Honorable, the Supreme Court of the State of Nevada:
The Committee heretofore appointed by this Honorable Court for the purpose of drafting
suitable resolutions expressing the high esteem in which the late Justice Taber of this Court
was universally held, and the sorrow of the members of the State Bar of Nevada because of
his passing, respectfully submits the following:
HONORABLE E. J. L. TABER
Justice E. J. L. Taber was born November 29, 1877, at Austin, Nevada, the son of Joseph
Milo Taber and Cecelia Agnes Taber, pioneer residents of Austin.
Cecelia Agnes Taber, pioneer residents of Austin. He was educated in the public schools at
Elko, Nevada, and the Lincoln Grammar School and Lowell High School of San Francisco,
California. His higher education was received at Santa Clara University in California and St.
Paul Seminary of St. Paul, Minnesota. He graduated from the Law School of Columbia
University.
He was married on December 27, 1904, to Frances Mildred Smiley, who survives him. To
this marriage were born three children, William F. And Wallace E. Tabor, born September
20, 1905, and March 20, 1907, respectively, both of whom survive him, and Frances Dorothy
Taber, born July 9, 1911, who died in 1939.
Upon his graduation in law he returned to Elko, Nevada, where he was associated in the
practice of law with his stepfather, the late Honorable E. S. Farrington, later one of the
outstanding Federal Judges in our country. This association was to have a profound influence
on Justice Taber's later public and judicial career.
He was, in his early legal career, elected to the office of District Attorney for Elko county,
in which office he served with distinction. Thereafter, in 1911, he was elevated by his
constituents to the office of District Judge for the Fourth Judicial District, which District at
that time included Elko, Lincoln, and Clark Counties. He held the office of District Judge for
three terms, the last two terms in the District consisting of Elko County. He retired from the
District Bench after serving twelve years, and resumed private practice in Elko county. In
November of 1934 he was elected to the office of Justice of the Supreme Court of Nevada,
and continued in that office until his death on February 6, 1947.
During his high school and collegiate days Judge Taber was very active in athletic
pursuits, being particularly adept in baseball, tennis, and on the track. This interest in sports
he continued throughout his life, and his continued participation in athletics with the younger
people of his community made him very, very influential in the development of the character
of those young associates.
young associates. His interest in baseball had drawn him into close contact with a number of
the famous baseball figures of the country, whose friendship he help throughout his life.
He was a devoted husband and father, and his family life was ideal.
As a lawyer he was recognized as one of the leaders of our Bar. As a trial judge he was
patient, humane, and possessed a remarkable ability to reach exact justice in the matters
submitted to him. As an appellate judge he was hard working, conscientious, studious, and at
all times influenced by that same sense of justice. His long service on this Court is the best
evidence that he gave to the Bar and litigants everything that they might ask of an appellate
judge. His kindliness and courtesy endeared him to all members of the Bar.
His decisions in this Court rank with the best of those delivered by a long line of
distinguished jurists of this Court.
The Bench and Bar of this State deeply appreciate the splendid contribution made by
Justice Taber to the judicial history of the State, and deeply mourn his passing.
Now, Therefore, Be It Resolved, That this Court be requested to cause this memorial to be
spread upon the records of this Court as a mark of esteem and respect of the Bench and Bar of
this State; that a copy thereof be published in the next volume of the Nevada Reports, and
that a certified copy thereof be forwarded to the family of Justice Taber.
Wm. J. Forman,
Chairman.
Wm. D. Hatton, Chas. A. Cantwell,
A. L. Haight, Harvey Dickerson,
Alan Bible, W. Howard Gray,
John E. Robbins, Merwyn H. Brown.
The following resolution of Reno Post Number 407, Veterans of Foreign Wars of the
United States, was also presented, by Ned A. Turner, Clerk of the Court.
RESOLUTION
February 10, 1947.
Whereas, The Supreme Commander of the Universe has seen fit to call to his last reward
E. J. L. Taber, Associate Justice of the Supreme Court of Nevada; and
Whereas, During his lifetime Mr. Justice Taber has served the State of Nevada faithfully
and well; and
Whereas, The State of Nevada and its people have suffered a great and irreparable loss in
the death of Mr. Justice Taber; now, therefore, let it be
Resolved, That Reno Post Number 407, Veterans of Foreign Wars of the United States,
feels keenly the loss of such an outstanding son of the State of Nevada, who has been a
faithful and conscientious public servant, and who did so much to promote the welfare of the
State and its people; ;not wet it be further
Resolved, That these resolutions be spread in full upon the minutes of the proceedings of
this meeting of Reno Post Number 407, Veterans of Foreign Wars, and that engrossed copies
be transmitted to the family of Mr. Justice Taber, and to the Clerk of the Supreme Court of
the State of Nevada.
H. Wells Kilbourne, Adjutant.
Frank Bacigalupi, Commander.
In addition to the above memorial and resolution, members of the Bar and of the Court
addressed the Court as follows:
A.L. Haight, Esq.:
I knew Judge Taber for more than thirty-five years and our acquaintance was always on the
intimate side.
We first met during the time he was practicing at Elko and I at Ely. He used to get over to
Ely occasionally and we always had a standing engagement for an evening of billiards there at
the old University Club.
I have also seen him on various other occasions which have left a lasting impression on
me, and a few of which I shall mention.
I recall the first time he ate at our home. My young son until then had more or less taken it
for granted that his dad was the greatest fellow in the world. However, he and the judge took
to each other to the extent that for years the boy would quote Judge Taber as authority for this
or that would recount the sleight-of-hand tricks which the judge had performed to his
complete bewilderment. He had a wonderful influence over youngsters.
I have sat in his chambers both at Elko and in Carson City, and we have discussed
everything from baseball to the state of the worldand always with the greatest enthusiasm
on his part. The breadth of his knowledge of an immense variety of subjects entirely unrelated
to his life work was always a matter of amazement to me.
During the period he served as a Justice of this Court, I was a member of the Board of
Examiners, and from the time of his elevation to this Bench he took the greatest interest in the
problems of our board and always displayed a most sympathetic attitude toward the men and
women seeking admission to practice. He continually urged that our Bar examination be
made as practical as possible and that grading be done in the light of the examiners' years of
experience in the practice of law, and not by too severe and technical standards.
I recall the Judge at the meeting of the Bar Examiners Section of the American Bar
Association in San Francisco about seven years ago. He entered that meeting unknown to
everyone present except a few from Nevada and he left it one of the best known and highly
respected men in that large group. With all his modesty, his wisdom and his understanding of
the matters under discussion were almost instantly recognized, and many lingered after the
adjournment to seek his views on other problems.
I also recall listening to him address a service club at a noonday luncheon, and one could
not fail to be deeply impressed with the innate goodness and sincerity of the man, and
with his strong religious convictions and high moral standards.
deeply impressed with the innate goodness and sincerity of the man, and with his strong
religious convictions and high moral standards.
Throughout the many years of his public life, his unfailing courtesy, his high integrity, his
great ability and his untiring patience and loyalty have been continuously and increasingly
manifested to all with whom he has come in contact.
With the passing of Judge Taber our State has lost a fine citizen and an outstanding public
servant, and I, personally, have lost one of the friends I have liked best and admired most.
Harvey Dickerson, Esq.:
Your HonorsThe eloquence of the gentleman whose remarks preceded mine expressed
far more adequately than any words of mine could do, the extreme sorrow that the State of
Nevada feels at the passing of Judge Taber.
I was born in this great State and I have had the friendship and counsel of the great men
who have sat upon this Bench, and who have been called by our Divine Judge to a higher
Court than any we may know upon this earth. Judge Taber was one of these friends.
I first met Judge Taber at a time when his father-in-law, the late Judge Farrington, presided
over our Federal Court, and my respect and admiration for him have grown throughout the
intervening years.
Southern Nevada joins with the rest of the State in mourning the passing of this noble
jurist. He was one of our first District Judges and his work in our section of the State has been
commemorated by a plaque on our Court House, and his photograph hangs on the wall of our
Judicial Chambers. A fitting and proper testimonial to his career has been drafted by the
Clark County Bar Association and has been spread upon the minutes of the Eighth Judicial
District Court.
His nobility of purpose, his clarity of thought and his judicial discernment have been
preserved in his decisions.
sions. Judge Taber's career might well be an inspiration to the young men of this State who
aspire to climb the ladder of success.
Yes, Judge Taber has passed from among us, but the memory of the many happy hours we
spent with him is as verdant as the evergreens which cloak Nevada's hills. He has left a
heritage of which his family, his friends and the Sate of Nevada might well be proud.
Alan Bible, Attorney General of Nevada:
The preceding tributes, it seems to me, reveal justly the very fine qualities of our late
beloved Judge Taber, both as a jurist and as a man. I fully concur in them;
It has been my pleasure to have known Judge Taber and his family very well for many
years. I first became acquainted with him when I entered the Attorney General's office. At
that time he was a member of this Court. Since that time we became very intimately
associated. I was in contact with him, as was each member of my staff, and saw him in this
office building almost every day.
I know, from my association with Judge Taber, of his constant devotion to and love of his
family. I know of the sorrows and troubles he had; his philosophy of life and his unceasing
and laborious industry. I learned to know him as a man of tremendous energy, clear
understanding, and firm attachment to the fundamentals of law. Those attributes, it seems to
me, have characterized his record upon this Bench.
It has also been my pleasure to sit with him, for a number of years, as a member of the
Board of Pardons and Paroles, and from that association I further learned, not only of his
seriousness of purpose, but of his thoroughness, in passing upon the numerous applications
for consideration and clemency presented to that board. On occasion he could be stern when
the case demanded it, subordinating a natural charity to the demands of justice.
Personally, I shall miss Justice Taber; the State shall lose a faithful servant; his family a
loving husband and father; but we shall all cherish his memory and profit by his example.
lose a faithful servant; his family a loving husband and father; but we shall all cherish his
memory and profit by his example.
Hon. Wm. D. Hatton, Judge of the Fifth Judicial District Court:
My acquaintance with Justice Taber developed at about the time he entered upon the
Bench of this Court. In the same year, my work on the District Bench began. In the following
twelve years I had opportunities, from time to time, to visit with Justice Taber. I remember
particularly one of my visits with him when I had just returned from a vacation of travel by
auto, and I told him of some of the travel scenes. He seemed to be so keenly interested that
ever after I had the impression of Judge Taber as a man who loved the out-of-doorswhose
interests were by no means confined to the cloister of the student and the scholar. He loved
our rugged mountains, our rolling hills and beautiful green valleys. Our own writer and poet,
Sam Davis, says of Nevada, at the end of one of his poems
You will sigh for a sight of the beetling crags,
Where the Storm King holds his sway,
Where the sinking sun with its brush of gold
Tells the tale of the dying day
And when you die you will want a grave
Where the Washoe zephyr blows.
With the green of the sagebrush above your head,
What need to plant the rose!
Justice Taber brought to his judicial labors a high degree of learning, and to his State, his
family and his friends he brought the gifts of love and loyalty.
Wm. J. Forman, Esq.:
I have nothing to add to what has already been expressed here, in the memorial resolution
and in the remarks of those who have preceded me.
I was requested by Judge Merwyn H. Brown, Senator John E.
John E. Robbins, and Mr. W. Howard Gray, the members of the committee who are not
present , to express their regrets at not being able to be here today.
W T. Mathews, Special Assistant Attorney General:
It was my privilege to have become acquainted with Justice Taber many, many years ago.
In fact, when I was studying law I received much sound advice and encouragement from him.
After admission to the Bar, I tried my first case in his Court, with he as presiding Judge. I
look back with pleasure to Justice Taber's occupancy of the Bench in the Fourth Judicial
District Court, his career at the Bar after leaving that Court, and followed his career as Justice
of this Court. There can be no question in my mind, or anyone's mind, of his profound
learning in the law and his ability to interpret it. As a lawyer and as a Judge, he had the happy
faculty of winnowing the chaff from the wheat and thus analyzing the cases brought before
him, and he exercised that fine faculty as Justice of this Court.
To my mind, one of the outstanding characteristics of Justice Taber was his kindly attitude
toward his fellowmen. Many, many times in Elko I have seen him going to the old swimming
hole in the Humboldt River surrounded by a coterie of little fellows, whom he was teaching
to swim, and there is many a man in Elko today who learned to swim under Justice Taber's
tutelage.
Just the other evening I stood on the main street of Carson City gazing at the old Mint
Building, built to withstand the ages. It stands there today as it has stood for seventy years.
Foursquare to all the winds that blow. Likewise was the character and life of Justice Taber,
who was faithful to his God, to his country, to his family, and to his State; he, too, stood
foursquare to all the winds that blow. We shall miss him.
Justice Milton B. Badt:
Mr. Acting Chief Justice Horsey, Gentlemen of the Bar, Friends: Your presence here
today and the feelings to which you have given such eloquent voice testify to the great
love and esteem that the people of this State and the West had for the late Chief Justice
Honorable E. J. L.
Your presence here today and the feelings to which you have given such eloquent voice
testify to the great love and esteem that the people of this State and the West had for the late
Chief Justice Honorable E. J. L. Taber. If I add a word it will be entirely informal, and
possibly of a more personal nature, as for many years I had constant and personal contact with
Judge Taber. I refer particularly to the twelve years during which he occupied the district
bench at Elko, and during all of which period I was an active practitioner there. It means
much to note the unvarying patience and courtesy manifested by Judge Taber to counsel, to
litigants, to witnesses and jurors during that periodfor that time included periods of great
stress and much important litigationcases involving irrigation litigation, mining suits,
receiverships of corporations and partnerships, contested probate matters, banking cases,
trespass cases and much important litigation growing out of land and livestock transactions.
That these cases were hotly fought will be clear from the mere naming of the attorneys that
tried themmen who were fanatically loyal to the interests of their clients, and contested
every step of every case. I have in mind Senator Charles B. Henderson, Edwin E. Caine,
Carey Van Fleet, Judge B. F. Curler, Frank S. Gedney, Judge James Dysart, Otto T. Williams,
Judge H. U. Castle, Governor Morley Griswold, Charles A. Cantwell, Senator E. P. Carville,
Judge J. M. McNamara, Senator John E. Robbins and, during a somewhat later period,
Deputy Attorney General W. T. Mathews, C. B. Tapscott, D. A. Castle, Milton J. Reinhart,
and others of the Elko Bar whom I do not now call to mind. Eminent counsel from Reno and
other parts of the State participated in these trials. Some of them are in the courtroom today.
These were cases that tested not only the learning, ingenuity and fairness of a trial judge, but
his patience and serentiy of mind. In all of these, Judge Taber stood the test unfailingly,
seriously and objectively considering every ruling, opinion and decision that had to be made,
with an uncanny ability to sift out the true facts, but with all humanness and kindness.
uncanny ability to sift out the true facts, but with all humanness and kindness.
After he retired from the district bench he practiced for a period in Elko, and during that
time displayed the same ability, the same humanness, the same kindness, particularly the
faculty to recognize the rights of both sides. This ability resulted in the settlement out of court
of many cases that would otherwise have resulted in long, expensive and tedious litigation.
After such private practice he was, as you know, elected to this Bench, where he served for
twelve more years, and where he manifested the same qualities so evident during his tenure as
district judgebut in a wider field and in a court of last resort. I shall not refer to the high
character of his opinions, already touched upon here, which greatly enhanced the respect in
which this high Court is held throughout the country. During those years I argued many,
many cases to him and to his Associate Justices, and always received the same earnest and
courteous consideration that I had received from him as District Judge.
Mention has been made today of his athletic ability in his younger days. There are not
many, however, who knew him later, when he had taken on such great weight, who realize
that he was a ten-flat man in his youth, that as a basketball player he had few equals, that
there were not many professionals who could match him in covering first base, that he was a
remarkable place-hitter, that he could lay down a bunt almost at will half way from the first
base line or the third base line, and often beat the throw to first.
During the period when I was attending the grammar school at Wells, and later when I
attended Lowell High School (which was also his high school) at San Francisco, long before
the Boy Scout movement was evident, it was his practice in the summer time to take the Elko
boys to the old Eshelman Day in the Humboldt River, at Elko, almost daily, and he taught
virtually a generation of Elko boys how to swim. Nor did their parents have any concern for
their safety.
have any concern for their safety. They knew that the boys would be brought safely home, for
Judge Taber taught them, not only how to swim and dive, but all of the safety measures that
Boy Scouts are being taught today.
His great love, outside of that for his family and friends, was the Ruby Mountain range.
There, year after year, he traversed those dizzy heights that reached into the clouds. When his
growing weight made this a great physical stress and a strain on his great heart, he persevered
in walking the trails of the Rubies, and as his feet trod those rocky heights amidst the eternal
snows and lightening blasted pines, so did his intellect, so did his great spirit and his great
moral sense. There, in peace and serenity, his spirit communed with God, with Whom it now
resides.
Justice Chas. Lee Horsey:
My first real acquaintance with our departed friend and associate, Justice E. J. L. Taber,
commenced in 1911, when he assumed the office of District Judge of the Fourth Judicial
District, which then embraced Elko, Lincoln, and Clark Counties. I personally appeared, as
attorney, in many cases before his court, and learned to know him well. I succeeded him as
District Judge in Lincoln and Clark Counties in 1915, and soon thereafter he invited me to
preside for him in certain cases in the District Court of Elko County.
When practicing before Justice Taber in those earlier years, and later, after he was elevated
to this Court, I became greatly impressed with certain fine attributes of character which he
possessedparticularly, the extreme conscientiousness and carefulness with which he so
diligently searched for the correct course and the right result in the cases before him for
decision. Many years passed between this association any my appointment to this Court, in
October 1945. During the sixteen months of my association with Justice Taber, as a member
of this Court, the friendship and mutual respect begun in those earlier years was greatly
strengthened and deepened by the companionship and close relationship because of our
mutual duties and responsibilities.
and deepened by the companionship and close relationship because of our mutual duties and
responsibilities. More clearly with each passing day, I could discern, and more fully
appreciate, Justice Taber's intense devotion to high principles and the accomplishment of
justice in the performance of his judicial duties. In spite of physical infirmity, Justice Taber's
strong devotion to duty impelled him to perform prodigious labor, involving not only the
sacrifice of his convenience, but the further impairment of his health.
In every case concerning which Justice Taber entertained any doubt as to the correct result,
he would pursue his studies and research until every uncertainty, insofar as humanly possible,
had been removed. He was not satisfied until assured by his inner consciousness that he had
then discerned the light of truth, and by its rays could see the pathway of justice and of right.
On Monday, February 3d, only three days before his untimely passing, Justice Taber,
seeing me approaching, stopped his car, waited, and, in his kindly way, invited me to ride.
Observing that he did not look so well, I asked concerning his health, and he said, I am not
so well todayI worked several hours yesterday, and came back and worked last night, and I
am tired. He stated that he had read more than two hundred cases pertaining to the particular
case upon which he was then engaged, in order to make sure the Court was right in an order
previously made in that case. When he passed on, the opinion was about one-half completed,
and I had the honor to complete it, and, with the concurrence of Chief Justice Eather, same
became the decision of this Court. Here was a man slowly, but surely, dying, who must have
realized the end was near, working far into the night, on a holiday, to make certain that the
decision served the cause of justice and of right. He had no other motive. This was an
example of devotion to duty, in spite of illness, seldom paralleled, I believe, in civil office. It
was not prompted by the glamour, excitement or necessity of war, but occurred in the calm of
peaceful surroundings, and was the fine response of a worthy soul to the still, small voice of
conscience calling to duty a willing servant, in order that, through him, justice and right
might prevail in the particular case.
soul to the still, small voice of conscience calling to duty a willing servant, in order that,
through him, justice and right might prevail in the particular case.
Justice Taber was, very truly, a great man. He was a profound scholar, an eminent and able
jurist, and a patriotic and high-minded public servant. Personally, he was kindly, generous,
gentle and lovable, devoted to his countrymen, friends, home and family. May the dear ones,
whom he has left for a little while, take comfort in the fact that he has left to them the
priceless heritage of a splendid record of service to his State, and to his fellow men and
women, of which they may always feel justly proud. They may also cherish the thought that
he possessed the love and affection of all who knew him well.
To me personally, Justice Taber's untimely passing was, indeed, a great loss. I shall miss,
more than any words of mine can express, his wise and able counsel and the helping hand of
a true friend.
May our Heavenly Father rest his soul in peace until the dawn of a more perfect day.
Chief Justice Eather had prepared for today some remarks he intended to make, and I am
going to ask Justice Badt if he will kindly read them for us, what Chief Justice Eather would
have said had he been able to be present.
Chief Justice Edgar Eather (Prepared remarks read by Justice Badt):
The Bench joins the Bar in deploring the loss of this distinguished jurist, who formerly
was a Justice and Chief Justice of this Court.
Justice Taber passed from this high Court on February 6, 1947, for a great new destination
to serve at the Court of his Maker. The death of Justice E. J. L. Taber, after more than twelve
years of service on this Bench, has revived a flood of grateful memories to mitigate the
feeling of deep regret that a good and venerated figure has passed forever from our midst.
It was my privilege to have known Justice Taber for more than thirty-eight years. It
seemed to me years agoand I have never had any reason to revise my impressionthat
Justice Taber embodied in a large measure all that a judge should be. His example did much
to implant in me love for the law as a great profession, and instill in me respect for the courts.
He was a profound legal scholar; however, he would have been the last to claim any such
distinction. He excelled in dealing with facts, and brought to that work a remarkable
knowledge of human nature, and a lively imagination. He had that invaluable quality in a
judge, as Chief Justice Holmes once put it, of realizing how the law takes hold of people in
life.
In his administration of justice, though he was not one to condone wrongdoing or
compromise with evil, his sympathetic instincts and compassionate nature were much in
evidence.
He possessed the confidence and respect o the Bar, and its affection as well. I never heard
a lawyer complain that he was deprived of a full, fair and patient hearing in his Court. Neither
did I ever hear one of his decisions criticized as affected by political bias or inspired by
religious prejudice, nor condemned as influenced by friendship for lawyer or partiality toward
litigant.
A man of broad tolerance, he meted out justice without respect for persons, and with that
scrupulous impartiality and understanding sympathy which exemplified the spirit of
democracy at its best. He was always ruled by a high sense of judicial ethics. He realized that
respect for the law and respect for those who administer it go largely hand in hand. He was
governed in his work by the fundamental truth that in the last analysis the character of a judge
is at least one of the major guarantees of justice.
Justice Taber presided over this Court with modest dignity and calm content. He was, at
all times, a gentleman of the robe, which is to say he was patient, courteous and considerate
with whomsoever he had to deal.
courteous and considerate with whomsoever he had to deal. His kindly nature showed itself to
strong advantage in his treatment of young practitioners, with whose difficulties he was
always sympathetic, and with whose faults he was always indulgent.
I often ask myself: what is the test of an individual's personal and social worth? That he
shall be sincerely missed by those among whom he lived and worked, has seemed, to me, at
least one good answerThough lost to sight, to memory dear.
Certainly, by such a test Justice Taber ranked high as a man, judge and citizen. No man in
the State was better loved or respected.
I shall never forget the few months we spent together in this Court. They brought us into
the closest friendship. I shall miss him in the daily round of life, as one familiar and beloved.
Judge Taber in life seldom had time to do the things he wanted to do; he was too busy with
his work and doing things for others. Today he can sit and rock and loaf, around God's throne.
We extend to his stricken wife and family our deepest sympathy. He was devoted to them,
and we know the sorrow that must be in their hearts. May time soon soften their sorrow; may
they feel consolation for having his devotion and tender care so long; and be comforted by the
thought that he leaves to them the rich inheritance of a spotless name.
And now speaking to him personally as he sleeps, we can only say, in conclusion,
Fare thee well, our brother, and breathe a prayer that, far beyond the grave's
dark shadow, in the realms of heavenly light, his soul has found a safe, a happy, and an
eternal home.
This is our tribute to our former friend and associate.
Justice Horsey:
Mr. Forman and other members of the committee, and each and every one of you who
have addressed the Court, we thank you for the splendid service you have rendered, and
for the kind words you have spoken, so richly deserved by our departed friend and
brother.
we thank you for the splendid service you have rendered, and for the kind words you have
spoken, so richly deserved by our departed friend and brother.
Mr. Clerk, as a mark of the esteem and respect of the Bench and Bar of this State, it is now
ordered that the resolutions this day presented by the committee of the State Bar of Nevada,
appointed for that purpose, and the resolution of Reno Post Number 407, Veterans of Foreign
Wars of the United States, be received, filed and entered at length upon the records of this
Court, and to remain always on its records; that certified copies of them be sent to the family
of the deceased and to the Secretary of the State Bar of Nevada, and that said resolutions be
published in the next volume of the Nevada Reports.
And as a further testimonial to the revered and honored memory of Justice E. J. L. Taber,
this Court, in which he so ably served and presided for so many years, now stands adjourned
until Tuesday, June 3, 1947, at ten o'clock a.m.
____________

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