Volume 26 — Nevada Reports

L. Fitzgerald, Judge. - Peter Guilieri was convicted of murder in the second degree, and appeals. The facts sufficiently appear in the opinion. I. The answer to the first point is that the law does not require the state to use the testimony taken at a preliminary examination to make out a case, any more than it requires the state to produce and use in its ease in chief any and all witnesses or testimony heard or taken before the grand jury on finding the indictment'.

J. Bonnifield, Jr., Judge. Victor Bouton was convicted of grand larceny, and from the judgment and an order denying his motion for a new trial, he appeals. The facts sufficiently appear in the opinion. I. The sixth instruction given by the court in this case of its own motion is foreign to the issues.

F. Ourler, Judge. Action by John J. Quinn against Albert White. There was a judgment for plaintiff, and from an order granting a new trial he appeals. The facts sufficiently appear in the opinion.

Original proceeding. Certiorari by The Southern Development Company, a Corporation, against W. J. Douglass and others, constituting the Board of County Commissioners of Esmeralda County. I. The questions that are presented by this writ and to be considered by this court are: What is the character of the action that is to be exercised under the provisions of Section 459 of the Compiled Laws?

F. Talbot, Judge. Action by William B. Stanley against the Mineral Union Limited, a Corporation, and H. Hirsching and others. Held: and it is evident that in order to issue such a patent as is in controversy in this cause, the land officers of the general government in the first place, and those of the State of Nevada in the second place, are invested with discretion and authority to determine whether the land listed or patented to the State of Nevada, and by it…

E. Mack, Judge. Action by Harry Lewis against Edward Hyams and William Hyams. From a judgment against William Hyams, and from an order denying bis motion for a new trial, be appeals. Held: that, upon the failure to designate the place of payment in the note itself, the law presumed that the place of date was the place of payment. The authorities are uniform to the effect that no such presumption arises either as matter of law or of fact.

<p>Mandamus — Necessity oe Coubt Reooed. Where the record on appeal does not show that the transcribed testimony was read or referred to on the hearing of a motion for a new trial, mandamus will not be granted, on conflicting testimony, to compel the trial court to certify that it was so read or referred to, under Comp. Laws, 3292, requiring the court to certify to the papers presented on the hearing of such motions.</p>

F. TciTbot, Judge. Action by the State of Nevada against The April Fool Gold Mining & Milling Company. From a judgment in favor of plaintiff, defendant appeals. The facts sufficiently appear in the opinion. I. Reassessments cannot be made without statutory authority. This principle is fundamental. We do not know of a case holding the contrary view. We have concluded to examine the law on this subject and respectfully invite your attention to some of the authorities.

Original proceeding. Mandamus by tbe State, on relation of Tremnor Coffin, against Eugene Howell, as Secretary of State, to require the latter to furnish him a copy of a certain act of the legislature, and to include such act in the volume containing the published laws. The facts sufficiently appear in the opinion. I. Counsel quote Sections 18 and 35 of Article IY of the Constitution of Nevada. II.

JS. Mad1-, Judge. In the Matter of the Estate of Samuel Singleton, deceased. From a judgment in favor of Agnes Scossa, executrix, construing a deed of a testamentary writing, the heirs of Rebecca Singleton, widow of deceased, appeal. The facts sufficiently appear in the opinion. I. Samuel Singleton, on the 17th day of March, A. D. 1888, made a deed to his wife of all his property, real and personal, wheresoever found. A copy of this deed is set out in the objections.

L. Fitzge-rald, Judge. Action by the State against Ernst & Esser, and others, for delinquent taxes. From a judgment in favor of plaintiff and from an order denying a new trial, defendants appeal. The facts sufficiently appear in the opinion. I. The action of the board of equalization in adding the names of The Monitor Land and Live Stock Company and M. S. Eisner” to the name of Ernst & Esser upon the assessment roll rendered the assessment invalid.

F. Talbot, Judge. Action by R. H. Schwartz, as surviving partner of the firm of Stock & Schwartz, against Wilhelmina Stock, as executrix of the estate of William Stock, deceased. From a judgment in favor of defendant, plaintiff appeals. The facts sufficiently appear in the opinion.

H. Schwartz, as surviving partner of the firm of Stock & Schwartz, against Wilhelmina Stock, as executrix of the estate of William Stock, deceased. From a judgment in favor of defendant, plaintiff appeals. The facts sufficiently appear in the opinion.

B. Cheney, Judge. Action by the Foulks Accelerating Air Motor Company against J. II. Thies. From a judgment in favor of plaintiff and order denying defendant’s motion for new trial, defendant appeals. Held: In order to establish a charge of this character, the complainant must show by clear and decisive proof: First — That the defendant has made a representation in regard to a material fact. Second — That such representation is false.

F. Talbot, Judge. Action by B. F. Bonelli against T. J. Jones and another. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion. I. The complaint as amended is insufficient. It alleges, of four hundred inches of water, ownership, possession, and constant use since February 12, 1872, appropriation by survey, need, and appurtenance to certain lands.

F. Curler, Judge. Suit to quiet title by Jacob Springer against Thomas Olopatli. From a judgment in favor of plaintiff, and order denying defendant’s motion for new trial, defendant appeals. The facts sufficiently appear in the opinion.

F. Curler, Judge. Leslie E. Douglas was convicted of grand larceny, and appeals. The facts sufficiently appear in the opinion. I. The court will observe that the indietrbent does not allege that the taking was at the same time and same place, or that it was the same act, and there is no testimony to show that they were taken at the same time and same place.

JS. Mach, Judge. Action by L. Yori against Elkan Cohn. From a judgment in favor of plaintiff and an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion. I. The promise of two absent witnesses to attend a trial, and their unavoidable absence, is sufficient to justify a continuance. {People v. Brown, 46 Cal. 102; People v. Vermilyea, 7 Cow. N. Y. 368; Motvat et al. v. Brown et al., 17 Fed. Rep. 718; Brown v. State, 65 Ga. 332.) II.

Original proceeding. Application for mandamus by The Southern Development Company of Nevada against W. J. Douglass, and others, as County Commissioners of Esmeralda county. The facts sufficiently appear in the opinion. I. There can be no dispute but what the board of county commissioners had the power, and was authorized to make and enter the order as made and entered on the 5th day of December, 1899.

Petition by one McMahon for writ of habeas corpus to secure the petitioner’s release from imprisonment for a violation of the game laws. The facts sufficiently appear in the opinion. I. Courts have power to review the acts of the legislature as to whether or not in a given case a general law can be made applicable. (Hess v. Pegg, 7 Nev. 28; Fvans v. Job, 8 Nev. 33G, 342; Singleton v. FhtreTca Oo., 22 Nev. 97.) II.

J. Bonnifield, Jr., Judge. Mandamus by C. H. E. Hardin against J. W. Guthrie, Assessor of Humboldt County. From a judgment awarding the writ, defendant appeals. The facts sufficiently appear in the opinion. I. There is no provision of the revenue laws of this state giving the petitioner the right to demand of the assessor of Humboldt county on the 16th day of July, 1901, to determine the true cash value of the property described in petitioner’s affidavit.

<p>Costs — Appeal to District Court — More Favorable Judgment — Discretion of Court — Cost Bill — Amendment—Certiorari. I. On certiorari to review an order in the district court requiring that each oí the parties to an action appealed to such court írom a justice pay their own costs in both courts, and one-half the costs of the appeal, and one-half the jury’s fees in the district court, the only question which can be considered is whether the district court had jurisdiction to make the order sought to be annulled.</p> <p>2. Under civil practice act, sec. 582 (Comp. Laws 3677), providing that a party appealing to the district court " shall in no case recover from respondent the cost incurred on appeal unless he recover in the district court a judgment more favorable to himself than the judgment appealed from,” etc., a party appealing to the district court from a justice’s judgment, and there obtaining a reduction of such judgment, is not entitled to costs as a matter of right, but the question whether such reduced judgment is more favorable to him is a question for the sound discretion of the district court, not reviewable on certiorari.</p> <p>3. Where a party to an action in the district court has filed his cost bill within the time limited by law, and the matter of the allowance of costs still remains in the hands of the court under a motion to retax or strike out, the court has the power, under civil practice act, sec. 68 (Comp. Laws, 3163), authorizing amendments in its proceedings, to permit the cost bill to be amended so as to include the jury fees incurred in such court.</p>

E. Macb, Judge. Action between Charles H. Peters and John P. Jones. From an order changing the place of trial, Peters appealed. • I. An order changing the place of trial of a cause is an appealable order. (Practice Act of 1861; Stats. 1861, sec. 285, p. 363; Comp. Laws, 2513; Table Mt. Co. v. Waller’s-Defeat- 31. Go., 4 Nev. 220; Elamy. Griffin, 19 Nev. 442; Sup. Ct. Rule XXIII, Nev. Repts. vols. 3-24.) II.

Proceeding in quo warranto by the State of Nevada, on the relation of P. W. Dixon against P. V. Van Patten. Judgment of ouster of respondent. The facts sufficiently appear in the opinion. I. On an information in the nature of a quo warranto, the burden is on the respondent to show his own title, and not on the prosecutor or on the state to establish the prosecutor's title.

<p>[For syllabus and briefs, see State of Nevada, ex rel. Dixon v. Van Patten, No. 1610, p. 273, ante.\</p>

Application by Dennis Doyle for a writ of habeas corpus. The facts sufficiently appear in the opinion. I. The judgment and the process of commitment issued thereon are void, for the reason that there is no statement defining the crime for which the prisoner was convicted, as required by Section 4415 of the Compiled Laws. II.

B. Mach, Judge. Action by Orlando Cardelli and others against the Com-stock Tunnel Company and others. From an order refusing an injunction, the plaintiffs appeal. The facts sufficiently appear in the opinion.

L. Fitzgerald and W. D. Jones, Judges. Suit by Patrick Walsh and others against D. T. Wallace and others. Decree for plaintiffs. Defendants appeal. The facts sufficiently appear in the opinion. I. No watercourse, either surface or subterranean, is established by the evidence. No connection between the waters claimed by the plaintiffs and those appropriated by the defendants is shown by the proofs. It is well settled that a watercourse consists of bed, banks and water.

F. Curler and G. F. Talbot, Judges. Action by the Reno Mill and Lumber Company against W. J. Westerfield. Judgment was rendered in favor of plaintiff, and from an order granting a new trial, the plaintiff appeals. The facts sufficiently appear in the opinion.

Application by the State, on the relation of the Office Specialty Manufacturing Company, for mandamus against B. F. Curler, Judge of the Second Judicial District Court, Washoe County, to compel respondent to appoint appraisers under Stats. 1901, p. 93. The facts sufficiently appear in the opinion.

Action by The State of Nevada against the Nevada Central Railroad Company and others to recover taxes. Prom a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion. I. The district court erred in admitting the so-called delinquent list in evidence to make a prima facie case against the objections of defendants. The book offered in evidence was not the delinquent list which' the statute makes prima, facie evidence. (Comp.

F. Ourler, Judge. Action by J. D. Torreyson and another, partners, as Torreyson & Summerfield, against Jerome Bowman, as administrator of the estate of Samuel Bowman, deceased, Judgment for defendant, and plaintiffs appeal. The facts sufficiently appear in the opinion.

Original application for writ of mandamus by Tbe State, on tbe relation of George E. Kitzmeyer, against S. P. Davis, State Controller. Tbe facts sufficiently appear in tbe opinion. I. Tbe supreme court under tbe statutes of tbis state bad authority to make tbe order referred to, and the purchase price of the chairs must be paid out of tbe public treasury. II.

D. Mach, Judge. Action by John Gotelli and others against Orlando Oardelli and others. From a judgment and decree for plaintiffs, defendants appeal. The facts sufficiently appear in the opinion. I. The amount of water to which an appropriator is entitled is the amount actually applied for the purposes of proper irrigation.

F. Curler, Judge. Action by Albert P. Price, as administrator of the estate of William E. Price, deceased, against M. E. Ward. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion. I. Smith and TIilton were not bona fide purchasers because they had notice of all facts relating to Price’s claim.

F. Talbot, Judge presiding. Action by George H. Wedekind against O. B. Bell and others. From a judgment for plaintiff, defendants appeal. STATEMENT OF FACTS. The complaint in this action contains two counts — one for ejectment, and one for an injunction. The case was brought in Washoe county by plaintiff Wedekind, to recover possession of a portion of an alleged mining location called the Safeguard Mining Claim.

I). Jones, Judge presiding. Action by Andrew J. Taylor against the Nevada -Calif orniaOregon Railway Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion.

Original mandamus by The látate, on the relation of The Bullion and Exchange Bank, against C. E. Mack, District Judge. Dora Williams, as the administratrix of the estate of Evan Williams, deceased, intervenes. Application of relator denied and that of intervener granted. The facts sufficiently appear in the opinion.

JS. Maclt, Judge. Action by Thomas Rickard against Edward Geach. Held: if there be a mutual account of any sort between plaintiff and defendant for any item for which credit has been given within six years, that it is evidence of an acknowledgment of there being such an open account between the parties and of a promise to pay the balance so as to take the case out of the statute of limitations.”…

F. Curler, Judge. Action by A. H. Manning against Jerome Bowman, as administrator of the estate of S. W. Bowman, deceased. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear in the opinion.

3E. Mad', Judge. Action by George F. Dangberg against Louis Rubenstroth. ' From a judgment sustaining defendant’s demurrer, plaintiff appeals. Tlie facts sufficiently appear in the opinion. I. No cause of action would be stated without stating that plaintiff is and was the owner, and had the legal title, or had applied to purchase the same and had made first payment thereon.