Volume 24 — Nevada Reports

Original proceeding. Application by the State on the relation of H. C. Cutting, as Superintendent of Public Instruction, for mandamus to compel W. J. Westerfield, as State Treasurer, to pay a certain warrant drawn by the State Controller upon the general school fund of the state for payment on the salary of the superintendent of public instruction.

E. Mach, District Judge: Action by Martin Lutz against William Kinney, Sheriff of Ormsby county, to recover for mortgaged goods sold… Held: that where there was no provision in the mortgage requiring the proceeds of sales, or at least a portion thereof, to be applied to the reduction of the debt, the mortgagor remaining in possession; or where there was such a provision, but the mortgagor was in fact permitted by the mortgagee to remain in possession, sell the goods and…

E. Cheney, District Judge: Suit by the State against the Virgihia and Truckee Railroad Company, et al., for collection of taxes. From a judgment for plaintiff and an order refusing a new trial defendants appeal. The facts sufficiently appear in the opinion. I. The district court erred in including interest in this judgment, as no interest was prayed for in the complaint. (Solen v. V. & T. R. R. Co., 15 Nev. 313, and cases cited.) II.

The petition of James Crawford set forth that he was unlawfully imprisoned, confined and restrained of his liberty by the sheriff of Washoe county; that said imprisonment, detention, confinement and restraint were unlawful, and that the illegality consisted in this: That petitioner had been arrested upon a warrant issued from the justice court of Reno township, county of Washoe, State of Nevada, upon a complaint therein filed charging him with having threatened to commit an…

Original proceeding. Quo warranto by the State, on the relation of J. B. Williams, against H. H. Beck, Respondent, to oust respondent from the office of county commissioner. Held: or until sixty days should expire in the absence of such judicial investigation.

E. Cheney, District Judge, presiding: Action by Lyon county against Delia Ross, to have canceled a deed to property executed to her by the treasurer of Lyon county. From a judgment in favor of plaintiff and an order denying a motion for new trial, defendant appeals. The facts sufficiently appear in the opinion. I. Sec. 1949 of Gen. Stats, does not apply to land acquired at delinquent tax sales, and such property is not regarded as other property of the county.

F. Talbot, District Judge: Suit by J. W. Palmer against Eliza Culverwell, to recover damages for willfully and maliciously obstructing plaintiff’s rights in light and air. From a judgment in favor of the defendant and an order denying a new trial, plaintiff appeals. The facts sufficiently appear in the opinion.

Original proceeding. Application by the State, on the relation of F. M. Huffalcer, for a writ of mandamus to compel Colonel J. J. Crosby and others, constituting a court-martial, to allow relator to appear as attorney for N. I. Morgan, charged with violating the articles of war. The facts sufficiently appear in the opinion. I. Upon the allegations of the petition, mandamus is the proper remedy, under section 3469, General Statutes.

State of Nevada; G. F. Talbot, District Judge: Action of William Barnes against the Western Union Telegraph Company, for damages for delay in delivery of a telegram. Held: and it is certainly the law of the Circuit and Supreme Courts of the United States, that a common carrier may, by special contract, limit his common law liability. (New Jersey Steam Nav.

<p>On Rehearing.</p> <p>The opinion affirming the judgment of the lower court was based upon the fact that the appellant was a stockholder of the defendant corporation, and the assumed fact that she was cognizant of and acquiesced in the Winters contract. It was urged as ground for a rehearing that the testimony did not show a word by any witness that appellant had any knowledge of the said contract until after the injuries were inflicted of which she complained: Held, upon review of the evidence, that the court’s assumption was entirely justified.</p> <p>Estoppel — Acceptance op Instrument in Part. It is well settled that a person shall not be allowed at once to benefit by and repudiate an instrument, but, if he chooses to take the benefit which it confers, he shall likewise take the obligations or bear the onus which it imposes.</p>

Original proceeding. Application for mandamus by the State, on the relation of Lyon county, against C. A. LaGrave, as State Controller, to compel the allowance by the state of a portion of the salaries of the county treasurer, assessor and auditor. The facts sufficiently appear in the opinion.

E. Cheney, District Judge: Action by Mrs. J. E. Conter against Clara Herschel and others. From a judgment for defendants, and from an order denying her motion for a new trial, plaintiff appeals. The facts sufficiently appear in the opinion.

<p>Practice — Assignee of Interest in Judgment Proper Party Plaintiff. Under the civil practice act, providing that actions shall he prosecuted in the name of the real party in-interest (Gen. Stats. 3026), and that all persons having an interest in obtaining the relief demanded may be joined as plaintiffs, except as otherwise provided (Gen. Stats. 3031), an assignee of an interest in a judgment is a proper party plaintiff in an action on such judgment.</p> <p>Judgment — Right of Action Upon — Common Law' Rule Prevails. Under the common law' rule which prevails in this state, the right of action upon an unsatisfied judgment is a matter of course. It is, therefore, not necessary to aver in the complaint or show by the record that other good cause exists therefor.</p> <p>Idem — Good Cause foe Bringing Action Upon. A good cause is shown for the bringing of an action where the complaint and record show that at the time the action was commenced the statutory right of execution had been barred for more than nine years, while, with regard to the right to bring an action on the judgment, the statute of limitations had only been running two days.</p>

E. Mach, District Judge: Action to reform a mortgage by F. B. Adams against Archie Baker and Lucy Baker, his wife. From a decree in favor of plaintiff, defendant Lucy Baker appeals. The facts sufficiently appear in the opinion.

E. Cheney, District Judge: Action by the Stanton-Thompson Company against E. Crane and others to set aside certain conveyances by E. Crane’to his daughters, defendants Amelia H. Howard and A. G. Stiles, as in fraud of creditors, in which judgment was rendered against all the defendants by default.

■ Appeal from the District Court of the State of Nevada, Lyon county; C. E. Mach, District Judge: Action by Vitoria Cassinelli against Pietro Cassinelli for malicious prosecution. Judgment for plaintiff, from which defendant appeals. The facts sufficiently appear in the opinion.

F. Talbot, District Judge: Motion by W. H. H. Spafford to dismiss an appeal taken by the White River Valley Land and Live Stock Company, Appellants, and Mary C. Millspaugh, Intervenor. Respondent objects to the consideration of this appeal and moves the court to dismiss the same upon the ground that no notice of appeal was served upon the respondent or his attorneys, at any time, by appellants or their attorneys.

Application by the State, upon the relation of A. G. Fletcher, against R. S. Osburn, et al., as the City Council of the City of Reno, for a writ of certiorari to review the proceedings of the City Council in advertising for bids for the purchase of bonds, etc. The facts sufficiently appear in the opinion.

E. Mach, District Judge: Administration of the estate of M. D. Foley, deceased. Petition of Mrs. Oscar J. Smith, former widow, for a partial distribution. John D. Foley and others, brothers, sister and mother of decedent, answered and prayed for distribution as grantees of the widow. From a decree of distribution, the petitioner appeals. The facts sufficiently appear in the opinion. I. The jurisdiction of the district court in matters of probate is special and limited.

E. Mach, District Judge: Action by Michael Kennedy against Jewett Adams and Lizzie Keating, as executors, on a rejected claim against the estate of Robert P. Keating, deceased. Prom a judgment for defendants, plaintiff appeals. The facts sufficiently appear in the opinion.

Original proceeding. Application for writ of mandate by tbe State, on relation of Maria P. Hoppin, against A. E. Cheney, Judge of the Second Judicial District Court, in and for Humboldt county. The facts sufficiently appear in the opinion. I. Mandamus is the proper remedy if the judge of the district court has power to correct the statement on motion for new trial on his own motion, or to use the amendments proposed, for that purpose. (Keane v. Murphy, 19 Nev. 89.) II.

E. Mach, District Judge: Action by the State of Nevada against the Alta Silver Mining Company to recover taxes. Judgment for .plaintiff. Defendant appeals. The facts sufficiently appear in the opinion. I. The judgment is against law. It includes the taxes at the rate of twenty cents upon each one hundred dollars in value of the company’s property situated in Gold Hill.

Application of William M. Webb for a writ of habeas corpus. The facts appear in the opinion. I. It is not necessary to go into the ancient history of-forcible entry and unlawful detainer. Held: the question was fully considered if such jurisdiction should be allowed to remain in the justice courts, and it was then determined-that the justice courts should not have jurisdiction, but that the district courts should be authorized to try this character of actions.

E. Mach, District Judge: Action by William Burgess against Frank Helm, administrator of the estate of Mrs. William McDonald, deceased, to recover value of services. From a judgment for the plaintiff, and from an order denying a motion for a new trial, defendant appeals. The facts sufficiently appear in the opinion. I. A person presenting a claim to an administrator of an estate for allowance is bound by the claim as he presents it.

<p>Information in the nature of quo warranto by the State, on the relation of A. G. Fletcher, against Henry Ruhe, W. H. Noyes, S. O. Wells, Richard Ryland, and R. S. Osburn, as the City Council of the City of Reno.</p> <p>The facts sufficiently appear in the opinion.</p> <p>I. The act to incorporate the Town of Reno embraces more than one subject and matter properly connected therewith, and the subject thereof is not briefly or at all expressed in the title and is, therefore, violative of article IV, section 17 of the state constitution. In addition to the ordinary matters and subjects usually embraced in an act incorporating a town or city, there are three or four additional or independent subjects, to wit: the erection of water works within or without the city limits, the erection of buildings for city purposes, the erection of a light plant, the establishment of a free public library. Although these last mentioned subjects might involve the city in a debt of from one hundred thousand to two hundred thousand dollars, there is nothing in the title of the act that would indicate that such subjects were contained in the body thereof.</p> <p>II. The act to incorporate the Town of Reno may be considered a sequel of that certain act of the Legislature of Nevada entitled “An act directing the submission of certain questions to the electors of the Reno election precincts, at the general election of 1896,” approved March 15, 1895. (Stats. 1895, p. 72). In that act, the incorporation of the town, the operation of municipal water works and municipal light plant were made three separate questions for the electors to consider. Why, then, if in the last mentioned act they were made three separate and distinct subjects, should they not constitute separate and distinct subjects in the act in question? But even if it should be held that the subjects are all matters properly connected with the incorporation of the city, still the act would be unconstitutional — at least, so far as the sections cited are concerned — -for the reason that there is no mention of them in the title. (State v. Silver, 9 Nev. 227; State v. Hallock, 19 Nev. 384; State v. Hoadley, 20 Nev. 317.)</p> <p>III. In appointing respondents as the City Council of the City of Reno, the act is violative of article III, section 1 of the constitution. (State v. Kennon et al., 7 Ohio St. 347; 1 Cranch, 137; 4 Abbott’s Pr. 35.)</p> <p>IV. The act constitutes county and township officers ex officio city officers, permanently depriving the residents of the city of the fundamental right of local self-government. (Constitution, art. Ill, sec. 1; Constitution, art. IV, sec. 1; Constitution, art. IV, sec. 32; Constitution, art. 1, sec. 1, 20; 55 N. Y. 55; Cooley, Const. Lim. 34, 35.)</p> <p>V. The act is in violation of article I, section 13 of the constitution, in this: It apportions representation in the city council upon a basis of geographical limits, instead of population.</p> <p>VI. The act is violative of sections 1 and 6 of article II of the constitution, in this: By its very terms it deprives certain qualified electors from voting at special elections, such as the one in question in this act. All qualified electors residing within the limits of the city, who become such as defined by the constitution, subsequent to any general election, are disqualified from voting at special municipal elecr tions occurring after such election and subsequent to the next. We have no means of knowing the number of persons who became qualified electors in the City of Reno subsequent to the date of the last general election and the municipal election in question. This law permits of a minority vote com trolling in all special elections, a thing contrary to the fundamental principle of government. (Davies v. McKeeby, 5 Nev. 369.)</p> <p>VII. Article I, section 3 of the constitution, provides: “ The right of trial by jury shall be secured to all and remain inviolate forever,” yet this act in contravention of said section provides (sec. 2) “ that the trial and proceedings in all cases wherein any person or persons are charged with violating any ordinance or provision of an ordinance of the City of Reno, of a police nature, shall be summary in character, and by the police judge of Reno, without a jury.”</p> <p>VIII. The act in question (sec. 34) restricts the powers of taxation assessment, borrowing money, or loaning the credit of the city for procuring a supply of water to the sum of $150,000, in contravention of section 8 of article VIII of the constitution. It may be urged that this section of the constitution does not apply to towns or cities operating under special charter, but it is obvious that the reason why there should be no limit placed upon the amount of money that may be expended in procuring a supply of water for a town under the general act applies with equal, if not greater, force to a city operating under a special act. (Cooley, Const. Lim. 57, 58; Broom’s Maxims, 521.)</p> <p>IX. Sections 3 and 4 of the act in question, providing that freeholders alone shall be eligible to the office of councilmen in the city, is violative of the letter and spirit of the state constitution, and being so, all proceedings of respondents while pretending to act as the City Council of the City of Reno, were and are in excess of the jurisdiction of respondents, and were and are void. (State Const, art. I, sec. 1, 20; art. II, sec. 1; art. XV, sec. 3; art. XVIII; Cooley’s Const. Lim. 57, 58; Broom’s Maxims, 521.</p> <p>X. It is not disputed in this case but that for the general election held November 2, 1896, there was registered in Reno voting precinct, 1303 electors, 1000 of whom resided within the limits of the City of Reno. While the act provides that questions submitted to the qualified voters for their consideration, in order to carry must receive a majority of the votes cast of the duly qualified electors residing within the corporate limits of the City of Reno, as shown by the last preceding official registration, it appears, from the certified records of the city council now before the court, that not a single question submitted to the voters at the election held on the 7th day of October, 1897, received a majority vote of the duly qualified electors of the City of Reno, as shown by the last preceding official registration. Before the council had jurisdiction to advertise for bids for the bonds of the city, it had to affirmatively appear of record, not only that a certain vote was cast at the election on the 7th of October, 1897, but that the vote in favor of the questions submitted was a majority vote of the. qualified electors as shown by the last preceding official registration.</p> <p>I. The title of the act briefly expresses the subject of the act and is in conformity with the requirement of the constitution. The act itself embraces but one subject and matter properly connected therewith. The general subject of the act is the “ incorporation of the Town of Reno,” which subject is briefly and concisely stated in the title. “It has been held in many cases that an act entitled in general terms an act to incorporate a town may lawfully provide all means necessary for the government of the town, including taxation, courts, definition of misdemeanors, punishment of offenders, municipal improvements, etc.” {Ex parte Liddell, 93 Cal. 637; State v. Town of Union, 33 N. J. L. 350; Lochhart v. Troy, 48 Ala. 579; Harris v. People, 59 N. Y. 599; State v. Madson, 43 Minn. 438; Statev. Commissioners, 22 Nev. 405; Cooley, Const. Lim. 172; 23 Am. & Eng. Ency. of Law, 247, 248.</p> <p>II. “ It seems well settled that it is not necessary that the title of an act should embrace an abstract or catalogue of its contents.” {Abeel v. Ciarle, 84 Cal. 229; Montclair v. Rams-dell, 107 U. S. 155; People v. Hazlewood, 116 111.327; Hope v. Gainsville, 72 Ga. 250; Alleghany Co. v. Home’s Appeal, 77 Pa. 80; State v. Barrett, 24 Kan. 218.)</p> <p>III. An examination of the statutes of Nevada shows that in .every instance of the incorporation of a city by a special act of the legislature the title of the act has been similar to the one by this proceeding assailed. (Stats. 1864, p. 98, 110; Stats. 1864-5, p. 230; Stats. 1869, p. 162; Stats. 1873, p. 77; Stats. 1875, p. 87; Stats. 1877, p. 99.) .</p> <p>IV. These statutes show the legislative construction placed upon this section of the constitution with reference to its application to.municipal incorporation acts from the time of the adoption of the constitution until the present time. (State v. Grey, 21 Nev. 287; Cooley, Const. Lim. 82; Endlich’s Interp. of Stats. 527; Bingham v. Miller, 17 Ohio, 445; People v. La Salle Co., 100 111. 495 ■, Mining Co. v. Seawell, 11 Nev. 399.)</p> <p>V. Relator’s contention that the appointment of a provisional city council in the body of the aet, to serve until the next general election, is violative of the constitution, has been decided differently by this court and the matter is now stare decisis in Nevada. (State v. Rosenstock, 11 Nev. 128; Clarke v. Irwin, 5 Nev. 111.)</p> <p>VI. Relator’s objection and argument that the act is violative of the constitution in designating certain county officers as ex officio city officers, and thereby depriving the residents of the city of local self-government, has also been decided adversely by this court, and is no longer an open question. (State v. Rosenstock, 11 Nev. 128.)</p> <p>VII. There is nothing in the act, in relator’s petition, nor in the return thereto, showing or indicating that the geographical ward boundaries are not fixed upon a basis of population, and the court will entertain no presumptions upon that subject — at least, not for the purpose of declaring an act unconstitutional. The constitutional provisions cited by relator do not sustain his contention upon this point. They do not refer to municipal representation at all.</p> <p>VIII. Relator’s objection to the act as being unconstitutional, because it ..mates the last preceding official registration the test of the right to vote at special elections held for the purpose of submitting municipal questions, is untenable and is not sustained by either the provisions of the constitution or the terms of the act, and there is certainly nothing contained in relator’s petition, or in the return thereto; showing that enough electors possessing the qualifications entitling them to vote to have changed the result of the election were deprived of the right to vote. In fact, it does not appear that any elector was deprived of such right. The Statutes of 1889, p. 14, providing for holding a special election at which certain proposed amendments to the state constitution were to be voted upon, adopted the last preceding registry lists as a test of the elector’s right to vote at that election, and this court declared such adoption a commendable act of legislative authority calculated to facilitate rather than to impede the exercise of the right to vote. (State v. Board of Examiners,-21 Nev. 67.)</p> <p>IX. The provisions of the act not being violative of the constitution, in order to invalidate the election it would be necessary to show that a sufficient number of constitutionally qualified electors were prevented from voting to change the result of the election in order for relator to prevail in this proceeding. (McCrary on Elections, sec. 546; First Parish v. Stearns, 21 Mich. 148; Trustees v. Gibbs, 2 Cush. 39.)</p> <p>X. The constitutional guarantee of the right of trial by jury is not strictly applicable to prosecutions for violations of municipal police ordinances. In such case the trial may be summary in character without a jury. (1 Dillon, Municipal Corporations, 3d ed. p. 424; Byers v. Commonwealth, 42 Pa. St. 89; McGear v. Woodruff, 33 N. J. Law, 213; Vason v. Augusta, 38 Ga. 542.)</p> <p>XI. Section 8 of article VIII of the constitution is applicable only to towns and cities organized under a general law, and is entirely without effect upon cities incorporated by special act. The legislature possesses such legislative powers as are not inhibited by the constitution.</p> <p>XII. The provisions of the Constitution of Nevada do not sustain relator’s contention that it is beyond the authority of the legislature to make the ownership of real estate a qualification to holding the municipal office of city councilman. The right to make such ownership a qualification not being inhibited by either an express provision of the constitution, or by its spirit, or any fair implication, relator’s argument is without merit.</p> <p>XIII. Relator’s contention that, in order to authorize respondents to issue and sell the bonds of the City of Reno, as proposed by respondents in their-advertisements for bids, it was necessary that at the special election of October -7, 1897, a majority of the number of electors registered in Reno at the general election of 1896 should vote in favor thereof, is untenable and is unwarranted by the language of the act when examined in the light of the accepted rules of-statutory construction. The construction urged by relator utterly ignores the significance of the word cast. No part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can be avoided with propriety. (Torreyson v. Examiners, 7 Nev. 19; State v. Ross, 20 Nev. 61; Ex parte Siebenhauer, 14 Nev. 365.)</p>

E. Mach, District Judge: Actions by Charles E. Brooks against the Nevada Nickel Syndicate (Limited), and by the National Nickel Company against the same defendant. From judgments for defendant, plaintiffs appeal separately. On motions to dismiss. The facts sufficiently appear in the opinion.

the District Court of the State of Nevada, Lincoln county; G. F. Talbot, District Judge: Action by James Nesbitt against The Delamar’s Nevada Gold Mining Company, a corporation, to quiet title -to mining claim. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion.

E. Cheney, District Judge, presiding: Action by the April Fool Gold Mining and Milling Company against T. E. Dula, and others. Judgment for defendants. From an order denying a new trial, plaintiff appeals. The facts sufficiently appear in the opinion.

E. Mack, District Judge, presiding: Administration of the estate of M. D. Foley, deceased. Petition of Mrs. Oscar J. Smith, former widow, for a partial distribution. John D. Foley and others, heirs, answered. From a decree of distribution, the administrator, W. E. Griffin, appeals. The facts sufficiently appear in the opinion.

<p>Stake Decisis. In this case, the court having passed upon the point involved in two other cases, the legislature having passed a number of acts of the same character, and it having been the recognized law of the state for a number of years, the question must be considered as settled.</p> <p>Constitutional Law — County Debt. The act approved March 6, 1897 (Stats. 1897, p. 17), providing for the payment of the indebtedness of Lincoln county, is not in violation of the constitutional provision (Const, art. IV, sec. 20) against “ special and local laws regulating county business.”</p>

E. Mack, District Judge: Action by Susan Bailey against F. L. Littell, as Sheriff of Lyon county, et al. From a judgment for plaintiff, and an order denying a new trial,… Held: as a general rule, that where property of the first class is voluntarily converted into property of the other class that the latter will not be exempt from forced sale.” (Wathins v. Davis, 61 Tex. 415.) This puts a quietus upon the theory attempted to be deduced from Mr. Platt and his Allen v. Hall'.

F. Talbot, District Judge: Action by Elko-Tuscarora Mercantile Company against Ira D. Wines and Len Wines. From a judgment for plaintiff, defendants appeal. The facts sufficiently appear in the opinion.

L. Fitzgerald, District Judge: Action by A. Marx against I. J. Lewis, doing business under tbe name of I. J. Lewis & Company. From an order setting aside a judgment by default, plaintiff appeals. The facts sufficiently appear in the opinion.

Original proceeding by the State, on relation of John Wilson, against W. H. Stone, Registry Agent, for mandamus, to compel the registration of his name as a legal voter. The facts sufficiently appear in- the opinion.

E. Mach, District Judge: Action by Charles E. Brooks against the Nevada Nickel Syndicate, Limited, and another. From a judgment for plaintiff, the Nevada Nickel Syndicate appeals. The facts sufficiently appear in the opinion. I. The district court did not have jurisdiction of the Syndicate, and the judgment and decree are null and void. No summons was ever issued in this action.

E. Mach, District Judge: Action by A. S. Bryant and others against Peter Anderson and others. From a judgment for defendants, plaintiffs appeal. The facts sufficiently appear in the opinion. I. Finding No. 11, in the case of Anderson v. Bryant, which was admitted in evidence in this case, was as follows: “ The court further finds that said plaintiff was justified in bringing this suit, but that he has not been damaged by defendants.” This finding is self-contradictory.

E. Cheney, District Judge: Action by James A. Hardin and James H. Rogers against Ed. M. Emmons, L. Elkus, and others. From a judgment for plaintiff, L. Elkus appeals. The facts sufficiently appear in the opinion. I. The original note and mortgage are neither merged nor extinguished by the new note and mortgage, but remain in force. The original note and mortgage have not been paid, nor have they been surrendered, or relinquished, or canceled, or satisfied.

F. Talbot, District Judge: Daniel Mandich was convicted of grand larceny, and he appeals. The facts sufficiently appear in the opinion.

E. Cheney, District Judge: Action by the Union Ditch Company against B. F, Leete. Case certified from the Justice’s Court to the District Court, wherein a judgment was rendered for the plaintiff, and the defendant appeals. The facts sufficiently appear in the opinion.

Proceeding in the nature of quo warranto, on the relation of J. R. Schulz and R. Schulz, against Eugene Sweeney and James Furlong. The facts sufficiently appear in the opinion. Held: the trustees would hold over until their successors were elected and qualified. V. The testimony shows that no election for trustees was ever held in this union district since its inception.

E. Cheney, District Judge: Action by the Office Specialty Manufacturing Company against Washoe county. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. The facts sufficiently appear in the opinion. I. It will be seen, from an examination of the record on appeal, that the district court holds that the contract entered into was illegal and fraudulent, and in violation of section 1972 of the General Statutes of Nevada.

E. Cheney, District Judge: Action by Mary F. McGurn against W. H. McInnis, H. H. Beck and William Thompson. Judgment for plaintiff. Defendants appeal. The facts sufficiently appear in the opinion. I. This appellant court will not weigh the evidence in the case, and decide which of the parties litigant, in its judgment, adduced a preponderance of evidence.

E. Mach, District Judge: Action by F. B. Adams against Archer Baker and Lucy Baker, his wife. From an order denying a motion to discharge plaintiff’s judgment pro tanto with the judgment for costs obtained by the wife, plaintiff appeals. The facts sufficiently appear in the opinion. I. Assuming that a judgment for her costs had been rendered in favor of Mrs. Baker and against plaintiff Adams, it should have been offset against the judgment in favor of Adams pro tanto.

E. Cheney, District Judge: Action by D. H. Sisson, L. S. Bridges, A. F. Sisson and J. L. Barron against Robert Sommers and R. M. Norris, for damages for trespassing on a mining claim, and for an injunction. From a judgment.for defendants, and an order denying a new trial, plaintiffs appeal. The facts sufficiently appear in the opinion. I. If his location is held invalid, it must be upon the ground' that locators must comply strictly with the very letter of the statute.

F. Talbot, District Judge: Action by C. P. Strozzi against Ira D. Wines and Eugene Wines, for damages for false imprisonment. Judgment for plaintiff, and defendants appeal. The facts sufficiently appear in the opinion. I. If this is an action for malicious prosecution, both malice and want of probable cause must be proven by a preponderance of the evidence. If either malice or want of probable cause be not shown, a verdict for the plaintiff cannot be sustained.

F. Talbot, District Judge: Action by F. R. McNamee against James Nesbitt and George Nesbitt, for damages for malicious prosecution. From a judgment for plaintiff, and denying a motion for a new trial, defendants appeal. The facts sufficiently appear in the opinion. I. The district court erred in overruling the defendant’s motion for a non-suit.

In the matter of contempt of court charged against P. Walsh, in the District Court in and for Lander county, in the case of F. Ahlers and others against J. P. Thomas and others. The contemner was found guilty, and he brings certiorari to review the proceeding. The facts sufficiently appear in the opinion.

E. Qheney, District Judge: Action by James Crawford against Mary M. Crawford, his wife, to have canceled a certain conveyance of property upon the ground of fraud. From a judgment for the defendant, and an order denying a new trial, plaintiff appeals. The facts sufficiently appear in the opinion.

L. Fitzgerald, District Judge: Action by George D. Bliss against George W. Grayson and others. From a judgment for plaintiff, defendants appeal. The facts sufficiently appear in the opinion. I. The action being to abate a nuisance, and there being thirty defendants, acting independently, there is a fatal misjoinder of parties, and the action must fall. (Gould on Waters, sec. 397; 47 Conn. 260, 273, 274; 10 Allen, 591; 77 N. Y. 51; 63 Barb. Ill; 35 Wis. 41; 53 Pa.

<p>Counties — Boundaries—Taxes. Pursuant to Stats. 1887 (p. 97], requiring the surveyor-general to place monuments at places where a railroad crosses a county line, and mark thereon, on the sides facing the respective counties, the name of the county and number of miles of said railroad therein — a map of such survey, when filed with the county recorder and secretary of state, to be prima facie evidence of the facts therein stated — the surveyor-general established a monument on a railroad track at a distance from the boundary between two counties as established by themselves. Thereafter, the track between the original boundary and the surveyor-general’s monument was assessed by the county within which the surveyor-general located it, but other property on the strip between the original boundary and the line as fixed by the surveyor-general’s monument was assessed by the county within which the original line, as fixed by the counties themselves, placed it: Held, that the placing of the monument by the surveyor-general did not change the boundary from the line originally established by the counties jointly, since the act does not authorize the establishing of new county lines, or the changing of county lines already established.</p> <p>Idem — Idem—Idem—Estoppel. The fact that for six years after the placing of the monument the county within whose limits the original boundary located the track did not assess it, and acquiesced in its assessment by the other county, did not estop it from claiming the original line as the correct boundary, where it continued to assess all other property within the disputed tract.</p> <p>Idem — Idem—Idem—Payment to Wrong County — Right of Recovery. Stats. 1893 (p. 44) and Stats. 1891 (p. 146) fix the situs of property for taxation in the county where situated, and authorize a recovery of delinquent taxes by suit. Stats. 1891 (p. 140, sec. 12) provides that where real property is assessed by two counties, each claiming it to be within its limits, a payment of the taxes to either county shall be sufficient: Seld, that where two counties assessed the same real property, each claiming it to be within its limits, and the taxes were paid to the wrong county, they may be recovered from such county by the county within whose limits the property is situate.</p> <p>Idem — Restitution of Money or Property Wrongfully Obtained. If a county obtains money or property of others without authority of law, it will be compelled to make restitution, upon the principle that an obligation rests upon all persons, natural or artificial, to do justice.</p>

<p>Appeal — Record—Defective Certificate. Where, instead, of a regular transcript, the original papers were sent up on appeal, as provided by Stats. 1895 (p. 58), they must be certified to be such originals, and to constitute in whole or in part the record on appeal.</p>

<p>Subrogation — Trust Deed — Mortgage—Second Lien — Notice. A purchaser of property, subject to a trust deed, is not subrogated to the rights of the holder of such trust deed by thereafter repurchasing the property at a sale under the provisions of the trust deed so as to enable such purchaser to defeat a lien by mortgage, which was a second lien on the property, and of which second lien the purchaser-had legal notice at the time of both purchases.</p> <p>Trust Deed — Mortgage—Second Lien — Foreclosure—Erroneous Judgment. In a suit to foreclose a trust deed, a mortgagee, holding a second lien on the land, was made a party. J udgment was rendered to the effect that a person who had purchased the property from the owners, and also at a sale under the trust deed, had acquired the right and title of the owners and the right and title of the - holder of the trust deed, free and discharged of the lien of the mortgage: Held, that such a judgment was erroneous, and that the mortgage should have been foreclosed subject to the trust deed, but that, though such judgment was erroneous, it cannot avail the holder of the mortgage in an action to compel the purchaser to apply the difference between the purchase price and the amount secured by the trust deed to the satisfaction of the mortgage indebtedness.</p>