Volume 12 — Nevada Reports

Application-to tbe supreme court for a writ of certiorari. Tbe facts are stated in tbe opinion. I. The objection that the case was before adjudicated cannot be considered, and the evidence offered to support the objection cannot be received, because there is no plea, and because the evidence offered is insufficient. II.

Tbe facts are stated in tbe opinion. I. Tbe demurrer should have been sustained. Tbe defendant, Maria Williams, was not a member of tbe copartnership, and not a proper party to a settlement of tbe business of said copartnership. Tbe complaint fails to show any cause of action against lier. (Summers v. Farish, 10 Cal. 347.) II. Tbe complaint states no facts which constitute a fraud on tbe part of defendant, J. A. Williams. III. Tbe judgment and decree is erroneous.

I. The statutes of March 11,1865 (2 Comp. Laws, 171-2), under which the commissioners acted, does not require that all facts set forth in the petition, or that any evidence of the sufficiency of the petition shall appear upon the record to confer jurisdiction. The order shows upon the records of the board sufficient evidence of the sufficiency of the petition; the board acted upon the petition when they made this order.

The facts are sufficiently stated in the opinion. The referee erred in refusing to allow the account paid by Clute, for taxes, against the firm property. This tax was a debt for the payment of which Clute and Young were jointly and severally personally liable; (Eev. Laws., sec. 6, 12, 25, 29, 35; 2 Comp.

Tbe facts appear in tbe opinion. I. Tbe court erred in refusing to allow tbe proof offered by plaintiff as to tbe consideration of tbe deeds.

The facts appear in the opinion. I. The court erred in overruling the demurrer. Our statute laws of 1867, p. 175, and 1869, p. 68, sec. 2, deals only with the rights of claimants to town property as they existed at the date of the entry of the lands by the proper authorities. The date of entry is the precise point of time at which the rights of the occupants of a town-site become fixed, at law and in equity.

The facts appear in the opinion. I. The attachment Avas fraudulently procured, and was void ab initio. The bond given to release it cannot be enforced at Lav. (Drake on Attachment, secs. 416, 173 a, 274 et seq.; Drummond v. Stewart, 8 IoAva, 341.) II. Unless enjoined, the bond may be assigned to an innocent purchaser. (3 Daniel Ch. Pr. 1726, 1755, and 1756; Hilliard on Judgments, 291 et seq.) III.

Tlie facts are stated in the opinion of the court. I. The question asked of the witness McCullough was improper. Whatever McCullough said to the plaintiff was not a declaration by which the defendant could have been bound. The defendant was not present at the conversation. He did not admit the truth of his answer, either by silence or express assent. McCullough was not the loser of the note nor the finder. He was not present when it was lost or found.

<p>Application for a writ of habeas corpus.</p> <p>The facts sufficiently appear in the opinion.</p>

The facts appear in the opinion. I. The action of the board of equalization in increasing the valuation of appellant’s property without any legal evidence on which to base its action was unwarranted and illegal. Such action deprives appellant of its property without due process of law, and is in violation of article 1, section 8 of the state constitution. The board is of special and limited jurisdiction, and nothing in that regard is to be presumed in its favor.

<p>Appeal from the District Court of the Second Judicial District, Ormsby County.</p> <p>The facts are stated in the opinion.</p> <p>The court erred in refusing to hear the case on its merits. The judge was not bound by the special issues found by the jury. It was useless to move for a new trial until after the decision of the court was rendered. Until that time plaintiff was unable to state whether he wanted a new trial. (Minium .v. Hayes, 2 Cal. 595; Smith v. Rowe, 4 Cal. 6; Walker v. Sedgwick, 5 Cal. 192; Stilly. Saunders, 8 Cal. 287; Mahoney v. Caperlon, 15 Cal. 313; Crowther v. Rowlandson, 27 Cal. 376.)</p> <p>I. The verdict was rendered on the twenty-fifth day of November, a.d. 1874; the judgment entered December 3, and the motion for new trial filed December 8, a.d. 1874. The motion was therefore too late. The court below acquired no jurisdiction to grant a new trial, and for this reason the order denying the new trial must be affirmed. (Civ. Pr. Act, sec. 197.)</p> <p>II.. The defendant having entered under a parol gift, and having made valuable improvements in pursuance of such gift, the case is without the statute of fraud, and the gift will be upheld. (1 Lead. Cases on Equity, 730, 731, 732, 733, 734; 14 Johnson, 15; 13 Conn. 479; 18 Id. 222; 8 N. H. 9; 20 Mo. 81; 4 Wis. 79; 1 Binney, 308; 6 Watts, 509; 2 Casey, 519; 7 Barr, 103; 6 Watts, 509; 4 Md. Ch. 133; 6 Md. 435; 24 Yt. 560; 4 Barr, 353; 4 Watts, 317; 3 Kelly, 82; 19 Ark. 23.)</p>

The facts are stated in the opinion of the court. Section 2995 (2 Comp. L.) does not confer the power upon county recorders to take and certify affidavits.

The facts are sufficiently stated in the opinion. I. It was not necessary to appeal from the first order as it was only the first step taken to secure the rights of obtaining a release of money subject to the attachment lien. The first order did not injure appellant until the second order was made. We contend that the first became a part of the second order, and must be so treated as to date within which appeal must be taken. II.

Tbe facts appear in tbe opinion of tbe court. I. Tbe mere fact that an action will lie does not necessarily supersede tbe remedy by mandamus. Tliis is a proper case for a mandamus. (1 Gomp. L., secs. 1508-9; State of Nevada ex rel. William Jl.

The facts are stated in theopinion of the court. I. The court erred in denying the defendant a jury. (Nash (Ohio) Pr. & PL 71-2; Bodley y. Ferguson, 30 Cal. 518; 36 N. Y. 569; 57 Id. 162.; 44 Id. 554; 50 Id. 574; Waiver of Jury, sec. 1242 O. 8.) II. Wilder, having occupied adversely for five years after pre-emption was completed and purchase-money paid, had title by prescription against Treadwav. (1 C. L., secs. 1023-24; 50 Mo. 573; 43 Cal. 213.) III.

The facts are stated in the opinion of the court. I. The order appealed from is properly before this court. It is an order made upon affidavit, after final judgment; hence, it can be appealed from, and the judgment-roll and order only need be brought up. (Pr. Act, sec. 337.) II. The order, when made, was, that a default and final judgment, entered at a former term, be set aside and vacated.

<p>When Judgment should be Afhibmed in a Criminal Case. — When the defendant in a criminal case fails to put in an appearance in the appellate court the judgment of conviction will be affirmed upon motion. (1 Comp. L. 2109.)</p>

The facts sufficiently appear in the opinion of the court. I. The supposed testimony of Emery read on the last trial of defendant was given on the first trial of the defendant when tried under the jury law of 1875. The proceedings were therefore void. (State v. McClear, 11 Nev. 39.) II. Emery could not have been convicted of perjury had he testified falsely on the first trial, because an indictment will not lay for perjury in a void proceeding. (5th Ed. Bish. Crim.

The facts are stated in the opinion. I. The defendant is a competent witness for himself; and no inference of guilt is to be drawn against him, because he declines to testify. (1 Comp. L. 2305-6.) II. He cannot be made a witness for the state against himself. (The People v. Tyler, 36 Cal. 522; The People v. McGungill, 41 Cal. 429.) III.

The facts appear in the opinion. I. The indictment only charges murder in the second degree. When an indictment charges that the offense was committed in the perpetration or attempt to perpetrate arson, rape, robbery, or burglary, it'is immaterial to show that the intention was to kill.

The facts are sufficiently stated in the opinion. I. The court erred in denying the second instruction asked by the defendant. What defendant expressed was a mere opinion for which he is not responsible in law. (2 Bars, on Cont., 275-76, notes j k; 1 Story on Cont., sec. 637; Long v. Woodman, 58 Maine, 52; LLolbroolc v. Conner, 60 Maine, 578; Cooper v. Lovering, 106 Mass. 77: Mooney v. Sillier, 102 Mass. 217. II. The court erred in denying defendant’s fourth instruction.

Original application for a writ of certiorari. The affidavit for the writ of attach men t against the defendant Sweeney for contempt (referred to in the opinion), was presented to the district court on the thirtieth of July, 1875. Sweeney appeared and demurred to the sufficiency of the affidavit. The demurrer was overruled, and defendant Sweeney then filed an answer denying most of the allegations contained in the affidavit.

The facts sufficiently appear in the opinion of the court. I. The evidence of fraud in the execution of the note was inadmissible, because the note, although void as to creditors, was perfectly good as between the parties. The statute of this state does not make such an instrument absolutely void; but only so as to creditors. (1 Comp.

Original application to the supreme court for a writ of certiorari. The facts are sufficiently stated in the opinion.

The facts are stated in the opinion. I. The general demurer to defendant’s amended answer should be overruled if the whole answer discloses any one valid defense. (People v. Merrill, 26 Cal. 361; 4 Cal. 327, 428; 10 Cal. 233; 26 Cal. 294.) II. Defendant’s plea of payment is sufficient. (2 Van Sant. PL 551.) III. The allegations in the. answer as to formation of partnership is sufficient. (Gage v. Angelí, 8 How. 335.) IV.

The facts are stated in the opinion. I. No judgment could have been recovered upon the original complaint. Neither of the parties plaintiff could maintain the action, nor could they maintain it jointly. As to that part of the demand, if any, -which arose before the death of Edward Donahue, it must be recovered by Quillen as surviving partner for the benefit of the copartnership. (Prob.

Tbe facts are stated in tbe opinion of tbe court. I. The injunction should not have been issued, and should have been dissolved on motion: 1. There was no statement of facts necessary to enable the court to say that any irreparable 'injury had resulted, or would result to plaintiff from any acts of the defendants ; 2. There was no allegation that defendants were unable to discharge and satisfy any judgment that might be obtained against them in the action; 3.

<p>Notice ov Appeal and Undektaking on Appeal — When must be Filed.— In construing sections 331 and 318 of the civil practice act: Held, that a copy of the notice of appeal, as filed, must be served before or at the time of filing the undertaking on appeal.</p>

' Habeas Corpus before tbe supreme court. Tbe petitioner sets forth that be is unlawfully imprisoned, detained, confined and restrained of bis liberty by tbe sheriff of Storey county; that be is illegally held and restrained of bis liberty under tbe act of tbe legislature, entitled “An act to amend an act to provide revenue for tbe support of tbe government of tbe state of Nevada, approved March 9, 1865;” amended March 4, 1871 (approved February 20, 1877); that be is a…

The facts are stated in the opinion. I. The transfer of the property, under the circumstances detailed in the evidence, is conclusively fraudulent and void under sections 60, 64 and 69 of the “ act concerning conveyances,” approved Nov. 5, 161; sec. 288, 292 Comp. L.; Nulburd v. Bogardus, 10 Cal. 518; Richards v. Schroder, 10 Cal. 431; Doake v. Brubaker, 1 Nev. 218; Sharon v. Shaiu, 2 Nev. 289; Lawrence v. Burnham, 4 Nev. 361.

This action was brought by W. E. Lee, James Mills and Jacob Mills, against Angus McLeod, to recover damages for an alleged unlawful diversion of the waters of Walker river, and to enjoin the defendant McLeod from diverting the same to the injury of plaintiffs.

The facts appear in the opinion of the court. I. The burden of the defense of being a bona fide purchaser without notice of equities rests upon the purchaser. There is no presumption in his favor, and he is required to prove affirmatively that he purchased without notice. (Gallatain v. Enoin, Hopkins’s Ch., 48; Longv. Dollar hide, 24 Cal. 227; Ooltonv.

Defendant was indicted, in Elko county, for the murder of Charles Silverstein alias Montana Charley. Held: at and against the said Charles Silverstein alius ‘Montana Charley,’ then and there unlawfully, feloniously, wilfully and of his malice aforethought, did shoot off and discharge; and that the said Eobert H. Crozier, with the leaden bullets aforesaid, by means of shooting off and discharging the said pistol so loaded, to, at and…

The facts are stated in the opinion of the court. I. When the language employed in a written instrument is plain and unambiguous, it must be interpreted according to its grammatical sense. It was tbe plain duty of tbe trustees, upon default being made on tbe part of McLeod to make tbe payments as therein stated, to sell the property. II.

Tbe facts are sufficiently stated in the opinion of tbe court. I. Tbe motion for a nonsuit should have been granted. (38 Wis. 320.) Mining claims on tbe public lands must be held and worked in accordance with tbe local mining laws in force in tbe mining district where tbe same are located.

The facts are sufficiently stated in the opinion of the court. The liability of a garnishee fixed by section 130 of the practice act, under our practice must be finally concluded by judgment in suit brought for the purpose. The practice of concluding the garnishee by judgment in the original suit does not prevail in this state.

The facts are stated in the opinion of the court. I. The admission of Winnie’s testimony was erroneous in any view of the case, and is unsupported by reason, argument or authority. The ruling of the court transgressed the first of the four cardinal principles which govern the production of evidence in all courts of justice, either civil or criminal. (1 Green. Ev. sec. 51-53; Koscoe Crim.

The facts appear in the opinion. I. In ejectment, the plaintiff recovers on the strength of his own title, and not on tbe weakness of his adversary’s; and to maintain this action, the defendant must be shown to have been in possession of some part of the land in dispute to which the plaintiff was entitled to the possession at tbe commencement of tbe action. II.

The facts appear in the opinion. I. It is not a preference or priority to provide that parties in whose favor certain properties are already mortgaged (Grant v. Chapman, 38 N. Y. 293), shall have the right to still hold such mortgages. No assignment by the debtor could rob the mortgagee of his protection. And it is only this right that the assignment needlessly attempts to save. II.

The facts appear in the opinion. The deed to “Thomas Barnett & Bro.” did not vest the entire title in Thomas Barnett, but vested it in Thomas Barnett and the appellant, his brother. The description of the grantees under the pleadings is sufficiently certain, and under the rules of evidence may be aided by extrinsic evidence. (1 Greenl. Ev., secs. 288, 325, 326; 22 Mo. 378; 29 Cal. 407; 53 Mo. 334; 29 Wis. 241; 2 Brock. 166-8; 71 N. C. 492; 5 U. S. Big.

The facts are sufficiently stated in the-opinion of the court. I. The instructions in this case are erroneous from beginning to end; and we venture the assertion that no jury could possibly have heard them without being misled.

tbe Second Judicial District, Washoe County. Tbe facts are sufficiently stated in tbe opinion of tbe court. From tbe facts, as found by tbe court, it is clear that as to lot one there is a ratification of tbe parol contract of sale, and as tbe possession and valuable permanent improvements take tbe case out of tbe statute of frauds, tbe defendant should recover lot one. As to lot two, tbe findings are equally specific.

Tbe facts are stated in tbe opinion. I. To constitute larceny there must be a felonious taking of tbe property of another, with tbe intent to deprive tbe owner of his interest or property therein, and that the person taking such property should expect to reap some advantage to himself. The property must be taken lucri causa. (Wharton Cr. Law, vol. 2, sec. 1781.) II.

To constitute murder in the first degree, the intent to kill must be the result of deliberate premeditation. It must be formed upon a pre-existing reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation. (People v. Nichols, 34 Cal, 212; States.

<p>Application to tbe supreme, court for a writ of mandamus.</p> <p>Tbe facts are stated iu tbe .opinion.</p>

Tlie defendant ivas convicted of murder in the second degree and sentenced to eighteen years in tbe state prison. Upon tlie motion for a neiv trial tlie prosecution presented affidavits from tbe parties wlio bad an opportunity to converse with tlie juror Todd, without tbe bearing of tbe officers Laving tlie jury in charge, showing that there was no conversation whatever about tbe case, or about the defemlant.

The facts are stated in the opinion. I. The court erred in admitting the supplemental answers as to the increase of the sheep and the shearing of the wool. The defendant cannot recover on a cause of action that did not exist when the action Avas commenced. (Watson v. Thibou, 17 Abb. Pr. 184; HilU. Hill, 10 Ala. 527; Vaughan v. Vaughan, 30 Ala. 329; Lovensohn v. Ward, 45 Cal. 8; Minnesota Go.

The facts are stated in the opinion of the court. I. The court erred in permitting proof of parol contract for sale of land, and in enforcing such alleged contract where the purchase money was not paid. (21 Cal. 99; L. C. Equity, 200-3; 38 Cal. 191; 16 Yt. 500; 40 Cal. 634; 3 Sumner, 435; 4 Nev. 280, 292-3; 7 Barb..59; 5 Nev. 394-5; 2 Jh. Ch. 405; Penyon Trusts, vol. 1, sec. 133, p. 144; 5 Jh.