Volume 18 — Nevada Reports

The facts are stated in the opinion. I. The affidavit for publication is wholly insufficient. It is not shown that service of summons upon the defendant could not be made in accordance with the provisions of section 1092, Comp. Laws. In granting the order for publication the justice acts judicially, and can know nothing about the facts upon which the order is to be granted except from the affidavit.

The facts sufficiently appear in the opinion. Notice that appellants will appeal is sufficient. (Comp. Laws, 1392, 1402, 1403.) I. The notice of appeal does not comply with the provisions of the statute. (1 Comp. Laws, 1392.) The acts required by the statute must be strictly complied with. (Warner v. Holman, 24 Cal. 228.) II. The bond filed by appellants is not such a bond as is required by statute. (1 Comp. Laws, 1402-3.) The sureties are not severally bound upon this bond.

The facts are stated in the opinion. I. Section 18 of article IV is directory only. A distinction is clearly takeu by the constitution between the passage of a bill and its becoming a law, and yet if we construe1 the constitution literally, when it has been passed by the two houses, regardless in certain cases of the signature or approval of the governor, it may become a law.

The complaint is sufficiently set forth in the opinion. The answer, omitting the title of court, is in the following words : “Now comes the defendant in the above entitled cause ; and for answer unto the complaint of plaintiff, filed herein, admits the truth of each and every allegation therein contained, and prays the sum of twenty thousand dollars be awarded to her out of the community property. ’ ’ I. The averments of the charges of adultery made by the defendant against…

<p>Appeal from the District Court of the Second Judicial District, Douglas County.</p>

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

The power of attorney referred to in the opinion reads as follows : Know all men by these presents, that I, Louis Ehrlich, of the city, county, and state of New York, have made, constituted and appointed, and by these presents do make, constitute and appoint Moses Ehrlich, of Reno, Nevada, my true and lawful attorney, for me and in my name, place and stead, to take charge of and to conduct and carry on my general merchandise business at said Reno, Nevada, to ' purchase and…

The facts are stated in the opinion. I. Property to be taxable must be abiding within the limits of a state or county; must be incorporated with the wealth of the state or county.

<p>Contempt—Construction of Statutes.—The statute relating to contempts 'and punishments must be strictly construed, and no interpretation should be given beyond its obvious meaning. (Stats. 1869, 267.)</p> <p>Idem—Statutes Applicable to Cases of Contempt.—The provisions of section 449 of the criminal practice act (1 Comp. L. 2073) and of the “act in relation to fines ” (2 Comp. L. 3288) apply to all cases of contempt, when criminal, as well as other misdemeanors.</p> <p>Contempt—Criminal Proceeding, When.—A contempt for the disobedience of a decree and violation of an injunction is in the nature of a criminal offense, and the proceeding for its punishment is in the nature of a criminal proceeding.</p> <p>Idem—Fine—Imprisonment for Non-Payment of.—Held, that the fine imposed in such cases is punitive, inflicted for the public good; that imprisonment for the non-payment of the fine is but a mode, provided by statute, for the enforcement of the fine, incident to the power given to the court to impose the fine, and that it cannot be regarded in the light of punishment.</p>

The facts are sufficiently stated in the opinion. I. It was error to permit the defendant to introduce testitimony tending to prove that plaintiffs had failed to do any work upon the Emma claim in the year 1877; and that plaintiffs had performed insufficient work thereon in the year 1878.

The instructions given and refused in this case were quite numerous. Among others the following were given at the request of plaintiff: 1.

The facts are stated in the opinion. I. The evidence was insufficient to justify the verdict of the jury, and the verdict was against the law, in that the weight of the evidence is against the verdict.

The facts are stated in the opinion. I. The plaintiffs need not have pleaded the former judgment. In such case the estoppel must have been pleaded and proven by the defendant. Neither is it denied that immaterial averments need not be proved. The contention here is that the plaintiffs have undertaken to avoid the effect of the former judgment, and by their form of pleading have assumed the burden of proof.

I. The admission of testimony to prove which party was successful in the Rose suit was proper. Parol evidence is admissible to show what was the precise question at issue in a former suit. (Freeman on Judg., Secs. 273, 274, 275; Wood v. Jackson, 22 Am. Dec. 621, and cases cited in note; Gardner v. Buckbee, 3 Cow. 120.) II. Testimony reviewed and discussed. I. A party to an action does not lose a suit because he doe's not recover all he sues for.

The averment of copartnership in the amended complaint is stated in the syllabus. The other facts are stated in the opinion.

■ Appeal from the District Court of the First Judicial District, Storey County. I. The complaint does not state facts sufficient to constitute a cause of action. There is no allegation therein of breach of the contract, upon which the action is based. The complaint does not contain any allegation that the plaintiffs in the action, in which the injunction was issued, have not paid to the parties enjoined such damages as they sustained by reason of said injunction.

The returns of the assayer making the assays that were introduced in evidence, contained the following caution : “It is perilous to trust any assay-report which is based upon a single assay, no matter how carefully or by whom made. No evidence is so satisfactory of the correctness of an assay report as the agreement of two proper assays of the same pulverized sample. All ore assays not specially otherwise ordered are understood to be of this character.

The facts are stated in the opinion. I. The deed of respondent’s grantor to appellant fixes the rights of the parties. Plaintiff’s instruction No. 1 cannot be reconciled with the other instructions. The deed required plaintiff to keep two hundred inches in the ditches at defendant’s disposal. It permitted, but did not require defendant to take two huudred inches or less. It only obliged him to pay a pro rata based upon the quantity actually used by him.

Upon a rehearing, the court ordered that its previous decision should be modified. The opinion, as here published, contains the modification and change directed by the court. The facts áre sufficiently stated in the opinion. I. The court erred in dismissing the corporation as a party defendant after it had answered. It was an indispensable party to the proper determination of the rights of the parties to the use of the waters of said stream.

The facts are sufficiently stated in the opinion. I. The evidence is sufficient to justify a verdict for plaintiff. Paquin was the agent of Sacalaris, with authority to sell the wood in controversy.

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

The facts are stated in the opinion. I. When text books are once prescribed by the proper authority, every parent having children of school age attending the public schools, and who has procured such text-books, has a direct personal, legal right to have such books used in the schools.

The facts are stated in the opinion. I. Statutes of U. S. referring to the criminal jurisdiction over indians. (Rev. Stat. secs. 2145, 2146, 5339.) II. The definition of murder by the statutes of this state is broad enough to include all human beings of any nationality, regardless of race, color or extraction, and the indian, having been indicted of murder, is amenable to the state laws the same as any other person within our territorial jurisdiction. (1 Comp.

The facts are stated in the opinion. I. The amended complaint shows that the appellants filed in the recorder’s office their claim, containing a statement of their demand, after deducting all just credits and offsets, with the name of the owner, and also the names of the persons by whom they were employed and to whom they furnished the materials, with a statement of the terms, time given and conditions of their contract, and also a description of the property to be charged…

The facts appear in the syllabus and opinion. I. Plaintiff’s complaint does not state facts sufficient to constitute a cause of action, (a.) As against the administratrix and administrator, it fails to show any presentation to them, or either of them, of any claim against the estate of their decedent. This is a fatal error. (1 Comp. Laws 618 ; Harp v. Calaban, 46 Cal. 233; Pitte v. Shipley, 46 Cal. 161; Whitmore v. San Francisco S. U., 50 Cal. 150 ; Marshy.

The following instructions, in addition to the one in the head notes, were given on the part of plaintiff: 1. “The plaintiff- claims certain personal property as exempt, as a barber, and I therefore instruct you that the tools and implements of a mechanic or artisan necessary to carry on his trade are exempt from execution, and if the defendant * * * took the same from the plaintiff, then he was a trespasser and liable to him for all damages that were the direct result of…

The opinion in this case does, not require a statement of the facts. I. The court erred in not accepting, as evidence, the subpeena iu Harvey v. Van Zandt.

The facts are stated in the opinion. I. The unpaid sum of money due from a stockholder to the corporation is a legal debt, and can be reached by a creditor of the corporation like any other debt due to it, or like any other of its assets. The corporation could recover the same by an action at law in assumpsit or debt, and can be garnisheed. (Pittsburgh C. P. Co. v. Byers, 32 Penn. St. 22; Me Cully v. Pittsburgh C. R. Co., 32 Penn. St. 25; Peterson v. Sinclair, 83 Penn.

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

The facts appear in the opinion. I. A claim against an estate duly allowed by an executor or administrator and probate judge, can be seized and sold under execution, so as to vest in the purchaser the title of the judgment debtor. (Civ. Pr. Act, secs. 127, 128, 135, 219, 222, 229, 230.) We adopted with these sections their settled judicial .construction in California.

The opinion states the facts. I. The policy of the land laws of this state is not to exclude the Chinese from the purchase of the public lands of the state. They are invited to purchase and guaranteed the possession and enjoyment after purchase. (2 Comp. Laws, 3818.) II. A Chinaman is a person. (Parrott’s Chinese Case, 6 Saw. 349; sec. 1 Art. I, Cons.; sec. 16 Art. I, Cons.) III. An Indian is not a citizen and canuot become a citizen of the United States (U. S. Rev. Stat.

The facts sufficiently appear in- the opinion. I. The act of 1875 gives no lien to the plaintiff for the material of the machinery or castings furnished. The clear and unmistakable declaration in section nineteen is to the effect that only persons performing work or labor on the machinery, etc., shall have a lien. It is also plain, that no lien is given to laborers for the carrying on of the mill. II. The right of lien is founded upon contract.

<p>Possession op Land—Easement of Way Over, Dobs Not Give.—The mere enjoyment of an easement of the right of way over land does not give the owner of the easement possession of the land over which the easement of way exists.</p> <p>Forcible Entry and Unlawful Detainer—Force.—Every entry into the lands or tenements in the actual possession of another, with strong hand, or witli a multitude of people, is forcible.</p> <p>Idem—Pladings and Evidence, Sufficiency of.—The pleadings and evidence reviewed: Held, that the jury were justified, therefrom, in finding both a forcible entry and forcible detainer.</p> <p>Immaterial Evidence—Exclusion of.—The exclusion of evidence which merely tended to prove the use of the easement by the defendants and their tenants: Held, not erroneous or prejudicial to defendants.</p>

Motion to strike out statement on motion for new trial, and to dismiss the appeal. The facts appear in the opinion. I. The five days allowed by statute to file and serve the statement expired before the order of court extending the time was made, and consequently came too late to operate as an extension of time.

The facts are stated in tlie opinion. I. The pendency of the insolvent proceedings, and the order staying proceedings, in the district court of Washoe county, operated of their own force to stay the proceedings in the district court of Nye county and that court was without authority to render any judgment.

The facts are stated in the opinion. I. The pledging of the Nicoletti note to T. L. Lagomarsine was without authority, and did not pass the title to the bank. It was in no sense a partnership note, it was neither given to them as partners, nor was it given to secure a partnership debt. II. The note being payable to T. L. and A. 8. Lagomai’-; sine jointly, or to their final order, the endorsement of both is necessary to pass the title of either.

<p>Action to Recover Alleged Balance Due to a Foreman oe a Mining Company—Evidence Reviewed.—The evidence, in relation to the accounts and business transactions between the foreman and superintendent of a mining company, reviewed: Meld, insufficient to sustain the j udgment.</p> <p>Idem—Evidence—Pay-rolls—Alterations.—The pay-rolls' of the mining company : Meld, admissible in evidence for the purpose of showing that the plaintiff and other employes of the mining company wore accustomed to receipt for amounts due each month without receiving the money, notwithstanding alterations and interlineations therein.</p> <p>Idem—Letters op President—Receipts op . Employes :—Meld, admissible in evidence; the letters as tending to establish an indebtedness; the receipts as tending to prove payments.</p> <p>Idem—Loan op Money—Finding.—The finding as to loan of money: Meld, unsustained by the evidence.</p> <p>Idem—Wages op Foreman when Absent prom the Mine.—A foreman of a mining company is not entitled to wages for the time when he is absent on jury duty or for the time spent in endeavoring to procure a settlement with the company.</p> <p>Idem—Account Stated—Finding.—The finding upon “account stated” referred to: Meld, correct as presented by the record.</p>

The facts are stated in the opinion. I. The evidence, in this case, shows that the entire engagement of Mrs. Roberts was one of surety for the debts of her husband. Under the laws of this state, the only contracts which a married woman can make are those respecting property. (1 Comp. Laws, 169.) II. The English equity doctrine which considers a promissory note executed by a married woman a charge upon her separate estate has no application.

<p>Hearing upon habeas corpus.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Burglary—Inhabitancy of Building—Statutes Construed.—In construing the statutes of this state defining burglary (Stat. 1861, 66; 1869, 65): Held, that the language of the statute is broad enough to include buildings of any kind, regardless of the fact of inhabitancy.</p> <p>Idem—Description of Premises—Owner—Tenant—Variance.—Where the premises are described in the indictment, as belonging to a certain person, the further allegation that the premises were occupied by a particular tenant is immaterial, and a failure to prove the latter allegation is not a variance, as its only office was to further identify premises already sufficiently described.</p>

<p>Appeal—Statement on Motion por New Trial—Findings.—Findings not embodied in tlie statement on motion for a new trial, and not referred to therein, except by a statement that the “findings of fact and conclusions ' oflaw are hereby referred to and made a part of this statement, and will be used upon the hearing of the motion for new trial,” cannot be considered on appeal.</p>

The facts are stated in the opinion. I. The sum of money which the plaintiff was entitled to receive under the contract is that sum which will guarantee the state four and oue-balf por cent, per annum on the amount paid.

<p>Action foe Bkeacii of Warranty of Title—Measure of Damages.—In an action to recover damages for breach of warranty of title to real estate, the measure of damages is the value of the property at the time of sale, to bo ascertained by the purchase money, with interest thereon, and reasonable costs, if any were expended in defense of title by plaintiff.</p> <p>Verdict Contrary to Law—New Trial.—The court properly instructed the jury as to the measure of damages, and they brought in a verdict contrary to such instruction ; Held, that the court properly granted a new trial.</p>

I. All property acquired after marriage b}' either husband or wife, or by both, except that acquired by gift, bequest, devise or descent, is presumed to be community property, and the burden is on… Held: that all the tolls received by him during coverture, and amounting to seventj'- eight thousand six hundred and twenty-five dollars, were his own separate property, and consequently that all property purchased with such tolls was also his separate property.

<p>Constitution—Legislative Power—Peohibitions, Limitations and Restrictions—It is the duty of courts, in construing the constitution, to ascei’tain the intention of those who framed the instrument, and of the people who ratified it. The legislature hag the power to enact any law not prohibited by the constitution; but in seeking for limitations and restrictions courts must not confine themselves to express prohibitions. Negative words are not indispensable in the creation of limitations to legislative power. If the constitution prescribes one method of filling an office, the legislature cannot adopt another.</p> <p>Idem—Election of Officers.—Under the provisions of the constitution of this state, all necessary state, county and township officers must be elected by the people of the locality immediately concerned.</p> <p>Idem—County Assessors—Extension of Term.—County assessors are necessary officers, within the meaning- of the constitution, (Art. IV, Sec. 32), and must be elected by the people. The legislature has no power to extend the terms of such officers beyond t-lie time for which they were elected, except temporarily in cases of emergency.</p> <p>Statute Unoonsiututional.—Section 2 of the statute of 1883, 123, extending the terms of county assessors beyond the time for which they were elected, is unconstitutional and void.</p>

<p>Appeal—Deposit op Money in Lieu op Appeal Bond—Cebtipicate op Bank Deposit.—The presentation to and acceptance by the clerk of the court of a certificate of deposit is a sufficient compliance with the statutory requirement, that to render an appeal effectual the appellant may, instead of giving an undertaking with sureties, deposit money equal in amount to the sum named in the undertaking, if the transaction is made in good faith.</p>

The facts are stated in the opinion. I. The indictment is fatally defective. It fails to allege or refer to any warrant or commitment authorizing defendant’s incarceration in the state prison. (State v. Holton, 22 Kan. 580 ; 2 Wharton Free. 923, 924; 1 Comp. L’aws, sec. 2076; Hurd on ITab. Corp. 252.) If defendant committed the acts charged in the body of the indictment, he was guilty of an escape, a different crime altogether from that charged against him.

<p>Contempt—Affidavit foe Verification of.—The affidavit for contempt need not show, upon its face, that the party verifying the same is beneficially interested in the proceedings.</p> <p>Idem—Sufficiency of Affidavit.—In case of an alleged contempt for the violation of a decree of the district court, an affidavit is sufficient to give the court jurisdiction, if it substantially states the fact of the rendition of judgment restraining the party from doing certain acts, that the judgment is in full force and effect, and that the party enjoined has disobeyed the decree, and threatens to continue a violation thereof.</p>

The facts are sufficiently stated in the opinion. I. The right to4he use of water, whenever acquired by appropriation, or otherwise, is an interest in land and cannot be granted or created except by operation of law, or by deed or conveyance in writing, subscribed by the party creating or granting the same. (Angelí on Water Courses, sec. 168; Morse v. Copeland, 2 Gray 302; Selden v. Del. $■ Hud.

<p>Water Bights—When Bight op Appropriation Begins—Reasonarle Diligence.—In determining the question of the time when the right to water by appropriation commences, the law does not restrict the appropriator to the date of his use of the water, hut applying the doctrine of relation, fixes it as of the time when he begins Ins dam or ditch or flume or other</p> <p>■ appliance, by means of which the appropriation is effected, provided the enterprise is prosecuted with reasonable diligence: IMd, in reviewing the evidence, that a delay for one season in not using the water was not unreasonable. (Simpson v. AVilliams, ante, affirmed.)</p>

<p>Certiorari—Judicial Officers—Wiiat Acts Can re Reviewed.—The action of a judicial officer in regard to matters which arc exclusively executive or administrative in their nature, oven when the act of the legislature requiring such duties to be performed is in violation of tlie constitutional provision, cannot be reviewed by certiorari.</p> <p>Idem—Judicial xYcts.—Under tlie laws of this state, the supreme court is only authorized to review the record and proceedings of inferior courts, officers, or tribunals acting in a judicial capacity and exercising judicial functions.</p> <p>Idem—Act Annexing Portion of Esmeralda County to Lyon County'.—The act required by section 6, Stat. 1883, 99, to be performed by the district judge, in the event of the boards of county commissioners failing to agree, are not of such a judicial nature or character as to authorize the supreme court of the state to review them upon certiorari.</p>

The facts appear in the opinion. I. The deed from Belyea was incompetent and wholly inadmissible to show a conveyance of the premises sued for. It is only a quit claim deed, and simply conveyed such title as the grautpr liad at the date of conveyance. (Harden v. Gullins, 8 Nev. 55; San Francisco v. Lawton, 18 Cal. 465; Graff v. Middleton, 43 Cal. 341.) It mentions no land in the premises or granting clause.

The facts sufficiently appear in the opinion. This action will not lie against defendants Frevert, Wagner and Boles because they were in no sense wrong-doers. They were neither severally nor jointly guilty with Williams of any trespass or tort against Elder.

The facts appear in the opinion. I. The court erred in granting a new trial. The granting or refusing a new trial has been held not to be a matter of discretion. (Sacramento ¿f* M. M. Co. v. Showers, 6 Nev. 296.) Rut granting that to a certain extent, it may be a matter of discretion, all the authorities concur in holding that it is not a capricious or arbitrary discretion, but one to be guided and fixed by legal principles. (2 Gra. & Wat.

<p>Settlement oe Statement by District Judge—Supreme Court Has no Power Over in Criminal Cases.—In the absence of any statute upon the subject, the supreme court has no power to settle a statement on motion for a new trial in a criminal case, when the district court refuses to settle such statement according to the facts claimed by the moving party.</p> <p>Idem—Reporter’s Notes.—The district court has the right to settle the statement according to the facts of the case without regard to the recitals contained in the reporter’s notes.</p> <p>Criminal Law—Self-Defense—Evidence as to Assault—Remarks by the Judge in Refusing Instructions—Error.—In a prosecution for murder where the defendant relies upon a justification, and evidence tending to establish such defense is given, it is error for the judge, in refusing to give certain instructions concerning the laws of self-defense, to remark to counsel, in the presence of the jury, that he did not give the instructions for the reason that he does not “ remember of any testimony given in this case tending to show that the deceased ever made an assault upon the defendant, or that there was any attempted assault made by deceased at the time of the killing; but the jurors are the exclusive judges of the facts in the case.” (Hawley, C. J., dissenting.)</p>