Volume 11 — Nevada Reports

Defendant was- indicted for the murder of William Patrick O’Beilly, convicted of murder in the second degree and sentenced to imprisonment in the state prison at hard labor for the term of twenty years. The facts are stated in the opinion. I. The indictment is fatally defective in failing to charge that the death occurred within a year and a day after the wound was given, and in failing to state in luhal year the injury Avas given or the death occurred.

Tbe defendant was convicted of burglary, aud sentenced to imprisonment in the state prison for the term of one year. Pending, tbe trial, the defendant’s counsel objectecl to any evidence being offered as to the goods being found in possession of tbe defendant, upon the ground that tbe corpus delicti bad not been proven. The court, in overruling this motion, said, in the presence of tbe jury: “I presume tbe first tiling counsel did was to try to prove tbe entry.

The facts are stated in the opinion. I.. The act. of the legislature of the state of Nevada concerning juries in criminal cases, approved March 2, 1875, is unconstitutional and void. It conflicts with section 3 of article I of the Constitution of the state of Nevada. It conflicts with section 8 of article I of the Constitution of the state of Nevada. It is in derogation of common law and against reason and justice.

Tbe facts are stated in the opinion. I. Tbe power of tbe court to set aside defaults should be liberally exercised, so that cases may be disposed of upon their merits; mere'technicalities should be avoided when they affect substantial rights. In this case, fraud and collusion are relied upon and fully set forth in the affidavit and answer. When such is the defense, the court should open the default and permit the defendant to set up his defense.

The facts are stated in the opinion. I. The statement on the motion for a new trial was not filed in time (practice act, sec. 197), unless the second order of the judge, extending time to defendant to file his statement, restored the statutory waiver and saved to respondent his right to the motion. But this order was coram non judice and void. The waiver had accrued and the subsequent order of the judge did not restore it.

The facts are stated in the opinion. I. The complaint in this cause is radically defective. There is no exemplification of the judgment sued upon, nor is there any allegation that the foreign court was a court of record, or of general jurisdiction, or that it had jurisdiction of the subject-matter in this case. Jurisdiction must appear by tbe record, and is not to be presumed.

<p>Appeal from the District Court of the Second Judicial District, Douglas County.</p> <p>The facts are stated in the opinion.</p>

Habeas Corpus before tbe Supreme Court. Tbe facts are stated in tbe opinion. I. No showing wa,s made, and no reason, in fact, given for either of the orders made by the court adjourning tbe bearing of tbe case. II.

The facts are sufficiently stated in the opinion. The 'court has one province, the jury another; and when the court grants a new trial without sufficient reason appearing therefor, the appellate fiourt will reverse the order. (Lawrence v. Burnham, 4 Nev. 361; Scolt v. Haines, 4 Nev. 426.) Refusing or granting a new trial will not be disturbed except where there is a gross abuse of discretion, nor where the decision of the court is upon' bare questions of fact.

Tbe defendant was indicted for tbe murder of Frederick Twiggs, tried and found guilty of murder in tbe second degree, and sentenced to ten years’ imprisonment at bard labor in tbe state prison.

The facts are stated in the opinion. I. The act of the legislature entitled, “ An Act to consolidate and fund the debt of Lincoln county,” is unconstitutional. It is obnoxious to section twenty, article IY, of the constitution of the state of Nevada, which prohibits the passing of local or special laws regulating county and township business. (Dissenting opinion of Chief Justice Hawley, in Youngs v. Hall, 9 Nev. 225.) II.

This was an original application before the Supreme Court for a writ of certiorari. The facts are stated in the opinion. I. Did the district.court have jurisdiction to try this case? It has jurisdiction to try certain misdemeanors punishable by fines exceeding five hundred dollars. Is this one of those cases?

This was an original proceeding in tbe Supreme Court-in tbe nature of a writ of quo toarranúo to determine tbe right of S. T. Swift, sheriff of Ormsby county, to hold and exercise the office of marshal of Carson city, under the act of the legislature approved February 25, 1875, incorpor-r ating said city. I. Tbe act of the legislature to incorporate Carson city is unconstitutional for the reason that it appoints the officers of the city.

<p>Appeal from the District Court of the Eifth Judicial District, Lander County.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. I. The remarks made by the court, while ruling upon tho admissibility of the bill of sale', were calculated to mislead the jury and thereby injure the defendant, and the error is sufficient to justify a reversal upon this ground. II.

The facts are stated in the opinion. I.Injunction in a case of this character is a recognized^ remedy, and indeed the only remedy to prevent irreparable injury. To prevent a multiplicity of suits—a sale of the property to sundry purchasers and its conversion upon a tax unlawful in toto—it is alleged that the assessor and collector are unable to respond in damages.

The following are the outlines of the map referred to in the opinion: The facts are sufficiently stated in the opinion of the Court. I. The question involved in this appeal is: Was there sufficient testimony on the question of possession by plaintiff, or its grantors, to submit to the jury ? The object of the inclosure of timber land is to notify subsequent comers that the land is claimed—is located, and that it is being used for some beneficial purpose.

<p>Appeal from the District Court of the Seventh Judicial District, Lincoln County.</p>

<p>Jurisdiction—Question of, raised by the Court.—As every court is bound to know tbe limits of its own jurisdiction, it is the duty of the court to decide, in limine, the question of jurisdiction, although the parties before the court are willing to concede jurisdiction for the purpose of obtaining an opinion upon the matters in controversy.</p> <p>Contempt of Court—When Process is Civil.—If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such case is not punitive, but coercive.</p> <p>LdEM—When Process is Criminal.—If the contempt consists in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by a penalty of fine or imprisonment, or both, which is purely punitive.</p> <p>Idem—Appellate Jurisdiction.—This court has no appellate jurisdiction in cases of contempt, where the proceeding is purely criminal.</p>

Tbe facts are stated in tbe opinion. I. The power to sell and convey is ample so far as the facts are in question, and the power of sale is operative, without foreclosure. (Fogarty v. Sawyer, 17 Cal. 592-3; 4 Kent, 146; Hill on Mortgage, chap. 7; Lovgwiih v. Butts, 3 Gilm. 32; 23 Gal. 573; 27 Cal. 272; 36 Cal. 60.) II. The acknowledgment before the vice-consul was valid.

Tbe facts are stated in tbe opinion. I. The court erred in disallowing tbe challenge to tbe juror, Matbewson. The law guarantees to all persons not only impartial jurors, but also jurors who have notprejudged tbe case: in other words, jurors who have not formed or expressed an opinion as to tbe material issue in tbe case. Tbe statute says a person is disqualified who has formed or expressed an opinion as to tlie merits of tbe action or tbe main question involved.

This was an original proceeding in tbe supreme -court upon a writ of certiorari. Tbe facts are stated in tbe opinion. I. Tbe court bad no power to make any order of any kind whatever, either for tbe examination of Maxwell or adjudging him guilty of a contempt, or to strike out bis answer in tbe civil action. Tbe affidavit of Nelly conferred no jurisdiction whatever upon tbe court to act; it was as though no affidavit whatever bad been filed. (Comp.

This was an original application to the supreme court for a writ of mandamus to compel tlie auditor of Storey county to correct the assessment-roll of tlie-proceeds of the mines for the quarter ending June 30, A. D. 1875, by adding to tlie tax collectible upon the proceeds of the mines certain taxes levied for school and railroad bond purposes, and to compel the assessor of Storey county to collect the said taxes as other taxes are collected upon such proceeds of mines.

<p>Appeal from the District Court of the Fourth Judicial District, Humboldt County.</p> <p>The facts are stated in the opinion of the Court.</p> <p>I. There was no valid or sufficient judgment entered by the clerk upon the statement of confession. There was no judgment entered upon the statement. There was no judgment entered in the judgment book. There was no judgment roll. (1 Comp. Laws, sees. 1208, 1264, 1420-22; Freeman on Judgments, secs. 47, 50-52; 3 Clark, 474, 480; 3 Wis. 362-4; 39 111. 9-13; 20 Ala. 298; 13 How. Pr. 289; 3 Or. 406-411; 54111. 189.) ■</p> <p>II. The court has jurisdiction to restrain the sale of appellant’s property on execution, although there be no valid judgment to support the execution, because if the sale were consummated and the sheriffs deed executed, the purchaser would acquire such an adverse claim as would lay the foundation of an action in equity to determine it. (Civ. P. Act, sec. 256; Scorpion 8. M. Co. v. Marsano, 10 Nev. 370.)</p> <p>One of the principal grounds of equity jurisdiction is the prevention of suits at law or in equity, and the prevention of costs and expenses. Wherever a suit might result from the act complained of, if equity did not interfere to prevent it, equity will interfere. (High on Injunctions, sec. 147; 7 Yesey, Jr., 413-415; 46 111. 122.)</p> <p>The deed of the sheriff, upon the sale on the execution of the respondents would have, of course, the same effect as if the deed were executed directly by Ginaca and Gintz; and if placed upon record it would naturally create doubts as to the validity as against the judgment creditors, of the previous transfer to the appellant.</p> <p>Such deed is calculated to create uneasiness in the appellant, and to awaken suspicions in others of the existence of concealed defects in the title, and must thus tend to depreciate the value of the property in the market, and to embarrass the owner in its sale or use as security. Against the casting of a shade in this way upon its title, is not appellant entitled to the preventive remedy by injunction ? (U. S. Bank v. Schultz, 2 Ham. 471; Norton v. Beaver ei al., 5 Ham. 179.)</p> <p>Must not the judgment be entered in court, and is it not the judgment of such court? (Civ. Pr. Act, sec. 361; 4 Kan. 294.)</p> <p>I. The judgment is good as between Terry, Friend and Doan, and Ginaca & Gintz, and the plaintiff in this suit not being a creditor of Ginaca & Gintz, cannot attack or set aside the judgment on the grounds of defects or fraud in the statement or judgment. (Lee v. Bigg, 37 Cal. 328.) Ginaca & Gintz, the defendants, in the statement and confessed judgment are not parties to this action. They make no complaint against the statement or judgment. The plaintiff in this suit having no interest in the confessed judgment, except so far as the judgment lien affects its property purchased of Ginaca & Gintz, subsequent to the judgment by confession, and as appears by the complaint in this action, with full knowledge of the lien of said judgment, cannot interfere with the judgment confessed by Ginaca & Gintz. (Marriner v. Smith, 27 Cal. 651; Freeman on Judg., 2d ed., sec. 512.)</p> <p>II. The acts of fraud on which the charge is based are not specified, and for that reason the complaint is not sufficient. (Semple v. Hagar, 27 Cal. 163; Kentv. Snyder, 30 Cal. 666; Castle v. Bader, 23 Cal. 75; Meeker v. Harris, 19 Cal. 278.)</p> <p>III. If the judgment is void because of irregularities of the clerk in entering it, an injunction to restrain its enforcement cannot be granted. The remedy is by application to the district’ court to quash the execution. (Sanchez v. Carriaga, 31 Cal. 170; Logan v. Hillegass, 16 Cal. 200.)</p> <p>IY. If the clerk erred as to form in entering the judgment by confession the remedy is by appeal. ■ A bill in equity to set aside the judgment, and enjoin execution and sale, cannot be sustained. (Freeman on Judg., 2d. ed., secs. 487, 532-34; Hunter v. Hoole, 17 Cal. 418; Comstock v. Clemens, 19 Id. 77; Ghipman v. Bowman, 14 Id. 157; Bond v. Pacheco, 30 Id. 530.)</p> <p>Y. The judgment described in the complaint is a good and valid judgment. (1 Comp. Laws, sec. 1208; Freeman on Judg., 2d ed., secs. 2, 48-51,. 129; Kramer v. Redman, 9 Iowa, 114; Gregory v. Nelson, 41 Cal. 278; Perkins v. Sierra Nevada S. 31. Go., 10 Nev. 405; Hempstead v. Drummond, 1 Fin. Wis. 535.)</p> <p>YI. The judgment as entered shows the parties, the matter in dispute, and the result. "The form is immaterial.” (Freeman on Judg. secs. 47-55; Lynch v. Kelly, 41 Cal. 232; Belter v. Mulliner, 2 John. 181; Gains 'v. Betts, 2 Doug. Mich. 99; Barrett v. Garragan, 16 Iowa, .47; Anderson v. Kimbrough, 5 O.old. Tenn. 260; Klliott v. Morgan, 3 Harr. Del. 216; 31oore’s Kx’rs. v. Lunney, 3 Harr. 28; Rogers et al. v.. Gosnell, 51 Mo. 468; 44 N. Y. 376; Shepard v. 31cNiel, 38 Cal. 72; Hamilton v. Ward, 4 Tex. 360.)</p>

Appeal' from the District Court of the Second Judicial District, Washoe County. The facts are stated in the opinion. I. At common law, and before the statute made parties to the action competent witness in their own behalf, a party was competent to prove his books of original entry.

tbe District Court of tbe Fifth Judicial District, Lander County. The facts are stated in the opinion. The point upon which the case was decided, was not discussed in the brief filed by the attorney-general. I. The verdict and judgment are against law, because tlm testimony shows that the girl consented to/vhat was done, if anything by the defendant.

The facts are stated in the opinion, I. The acts of Walley and wife were sufficient under the existing law concerning homesteads and the state constitution subsequently adopted, to stamp the character of homestead upon said premises and to indicate their selection and dedication thereof as a homestead, and long before the homestead law of 1864-5 was enacted Walley and his wife had a vested homestead right in said premises.

The facts are stated in the opinion. I. Tlie answer alleged fraud on the part of the plaintiffs, and the defendant was denied by the court his legal right to prove it. Failure of consideration, even inadequacy of price is proof (not per se sufficient or conclusive, but in connection with other evidence) to establish fraud; and if fraud be alleged, 'anything or fact tending to establish it, may be given in evidence. (Bump on Fraud.

The facts are stated in the opinion. I. The court erred in excluding defendant’s pleas from the record, and depriving him of the right of being tried thereunder, as shown by the bill of exceptions. The court had no authority to refuse to let defendant’s pleas be entered of record. The provision of the statute is clear and unequivocal upon the subject. It is mandatory, and leaves the judge no discretion in the matter. (Sec. 1920, Comp. Laws.) II.

This case was originally brought in tbe justice’s court to foreclose a mechanic's lien upon the following described real estate, situate in tbe county of Ormsby, state of Nevada, and more fully described as follows, to wit: Being a large structure on block 66, lots 3, 4, 5, 6, 7 and 8 of Musser’s Division of Carson city, opposite tbe United States mint, and belonging to D. H. Corbett, together with a convenient space of land around tbe same.

I. The court- erred in granting defendant’s motion for a a new trial, when there was no certificate attached to the statement on motion for new trial, as required by law. Under the practice act and the decisions of the supreme courts both of this state and California, there was no motion or statement for a new trial on which the judge of the court below acted, when the order was made. (Comp.

<p>Original Motion in Supreme Court for leave to issue an order of sale.</p> <p>Tlie facts are stated in the opinion.</p>

Habeas Corpus before tbe Supreme Court. Tbe facts are stated in tbe opinion.

<p>Habeas Coepus, Sections 581 and 583 Cbiminal Peaotice Act Constbued. Where petitioner had been held to answer before the grand jury for the crime of murder, the grand jury had met and ignored the charge, and the court, upon sufficient cause shown, ordered that he he held to appear before the next grand jury: Held, that petitioner was not entitled to his discharge under the provisions of sections 581 and 583 of the Criminal Practice Act (1 Comp. L. 2206, 2208) upon a writ of habeas corpus.</p> <p>IhEM.—Obdeb Submitting Case to Anotheb Geand Juey.—Disoketion op Judge.—Whereit appears that the court adjudicated upon the facts, the presumption arises that the facts were of such a character as to warrant the court in the exercise of its sound legal discretion to make tho order.</p> <p>Idem.—Kecitals in Reoobd.—It being recited in the record that the order resubmitting the case to the next grand jury, was made becauso “ sufficient cause” was shown, the presumption is, in the absence of any showing to the contrary, that the court did not act arbitrarily in the premises.</p> <p>Habeas Coepus, When Weit should not Issue.—When it appears from the facts set out in tho petition, that there is no sufficient ground to grant the relief asked for, the writ should not be issued.</p> <p>Admission to Bail upon Chaege op Muedee.—A nisi prius court has the right, upon the application of a petitioner, who is charged with murder, and whose case has been resubmitted to another grand jury, fo hear the testimony and decide for itself whether the proof of defendant’s guilt was evident or the presumption great.</p> <p>Idem.—Application to Othek Coukts.—When it appears that the presiding judge has acted upon petitioner’s application for hail, no other court or judge would be warranted in discharging petitioner or admitting him to bail, unless it clearly appeared that the presiding judge had acted arbitrarily in the premises. •</p>

Mandamus before the Supreme Court. The facts are stated in the opinion. I. The twenty-five per centum penalty imposed is neither in the nature of costs nor tax; but it is a sum imposed partly by way of punishment, but chiefly by way of inducement to influence the taxpayer to pay his taxes without suit.

The facts are stated in tire-opinion. I. The law under which the lien is claimed was repealed March 2, 1875. (Stats. 1875, 122.) In Shjrmcv. Oca. M. duM. Co., this court, under the authority of Massachusetts and other cases, held,' that the new law was a substitute for and took the place of the law repealed. The terms of the new were the same as the old, so far as the liens sought to be enforced were concerned; the new, then, only gave additional liens.

The indictment, after the- caption and heading, reads as follows: “Peter Larkin is accused by the grand jury of the county of Storey, by this… Held: then and there feloniously, without authority of law, and of his malice aforethought, did discharge and shoot off to, against, and upon the body of the said Daniel Corcoran, thereby giving to him, the said Daniel Corcoran, then and there, as aforesaid, a mortal wound, of which said mortal wound he, the said Daniel Corcoran,…

The fifth instruction asked by the defendant and refused by the court—referred to in the opinion—reads as follows: “If the jury find from the evidence in this case that the property alleged to have been taken Ayas being conveyed by the proprietors of the stage line for an express company, under a contract with such express company, and that the said G. N. BroAvn, who is alleged in the indictment as being the OAvner of said property, was only the driver of the stage in Avhich…

Th,e facts sufficiently appear iu the opinion. I. The court erred in allowing the written statement to be admitted in evidence, and in allowing the certificate to be supplied, and especially is this true when the objections to its admission existed as are disclosed by the minutes of the court contained in the transcript. (Art. YI, Amend’ts Const. U. S.) II.

The facts are stated in the opinion. I. 'The refusal of the court below to grant appellant’s petition to remove the canse to the United States Circuit Court was clearly error, for wbicb the judgment should be reversed. (U. S. Statutes at Large, vol. 14, 558; Stevens v. Plmnix Insurance Co., 41 N. Y. 149; Insurance Go. v. Dunn, 19 Wall. 214; States. Curler, 4 Nev. 445; Capíes v. Central Pacific li.

This was an action brought by plaintiff to recover the sum of three thousand dollars damages, alleged to have been sustained by plaintiff by the unlawful acts of the defendants in seizing upon certain personal property belonging to the plaintiff. The defendant, Kelly, as sheriff of Storey county, justified the seizure by virtue of a certain writ of attachment to him delivered in the suit of A. Louclc v. Wm. Hoffman, in the district court of said couiffy.

The facts are stated in the opinion. I. This contest is a special proceeding, and where its forum is a court proper, no further jurisdiction is obtained, or power granted, than flows directly from the language of statute. (Dorsey v. Barry, 24 Cal. 449.) No costs were recovered at common law. They were first given by the statute of Gloucester, 6 Edw., 1 C. 1, which has been substantially adopted in the United States.

<p>Appeal from the District Court of the Second Judicial District, Ormsby county.</p> <p>The facts are sufficiently stated in the opinion.</p>

The facts are stated in the opinion. I. The interlocutory decree is made without authority, and in excess of the jurisdiction of the court. Sections 277 to 280 of the civil practice act outline the course of procedure fully and distinctly, where partition and not a sale is ordered. The decree strips the referees of their judicial functions and makes them the unreasoning puppets of the court.

Original application, before the Supreme Court for a writ of peremptory mandamus. The facts are stated in the opinion. I. The proceedings provided by the statute in question are identical with those held to be constitutional for the exercise of eminent domain and taxation in case of railroads in this state. {Gibson v. Mason, 5 Nev. 282; Elliot v. V& T. JR. II.

The facts are stated in the opinion. The plaintiff was entitled to the crops on the land not secured' at.the time the redemption time expired, as the defendant Boston went into possession after the foreclosure sale, and with full knowledge, actual and constructive, of the termination of the redemption time. (Comp.

Tbe instructions refused by tbe court upon tlie question of drunkenness, referred to in the opinion, read as follows: “If tbe jury find tliat the defendant, at tbe time of the assault, bad, by drinking intoxicating liquors, made bimself incapable mentally of entertaining tbe intent to kill, then he is not guilty, unless lie had formed the intent to kill when mentally capable of entertaining it.” “The application of the rule that drunkenness is no excuse • for crime to the…

<p>When Judgment will be Aeitbmed.—Where there is no motion for a new trial, or bill of exceptions, and where no error is suggested by counsel for appellant, the judgment will be affirmed.</p>

Habeas Corpus before tlie Supreme Court. The facts are stated in the opinion. The petitioner is entitled to be discharged. The discharge of the jury, on motion of the state, without the con-, sent of defendant, was equivalent to a verdict of acquittal.

Tbe facts are stated in tbe opinion. I. The main object of this appeal is to showthat tbe wife did not take absolutely, and bad at most a life interest, coupled, probably, with a limited power of disposal. Tbe primary, and decisive question is, was there a trust created by tbe' language quoted ?

The facts of this case, as found in the cnurt below, are as follows: The land in dispute is the north-west quarter of section sixteen, in township forty-one, north of range forty-three east, Mount Diablo base and meridian, containing one hundred and sixty acres. It is agricultural land.