Volume 28 — Nevada Reports

Mandamus by the State of Nevada, on the relation of H. W. Miles and others, as the Board of School Trustees of Delamar School District, No. 18, in Lincoln County. The facts sufficiently appear in the opinion. I. It has been many times decided in this state, and is universally recognized as a correct statement of the law, that mandamus commands an action and certiorari reviews an action. (Ency.

F. Curler, Judge. Action by Daniel Powell against the Nevada, California and Oregon Railway. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion. I. The errors upon which the defendant asks that the order and judgment be set aside and reversed are chiefly: First — Excessive damages appearing to have been given under the influence of passion or prejudice.

F. Curler, Judge. 4 Action by P. A. McKenzie against George Coslett. From a judgment for defendant, plaintiff appeals. The facts sufficiently appear in the opinion. Held: The mere institution of a suit does not, of itself, relieve a person from the charge of laches, and,-if he fail to prosecute it with diligence, the consequences are the same as if it had never been instituted.” (Johnston v. Standard M. Oo., Ié8 U. S. 371; 13 Law Ed. 585.) XVII.

F. Curler, District Judge. Action by White Sewing Machine Company against Edwin Fowler and others on a bond. Judgment for plaintiff, and defendants appeal. Held: so far as we can ascertain, that the'words 'for value received’ sufficiently express the consideration to amount to a compliance with the requirements of the statute.

A. Murphy, Judge. Action by Hattie Mitchell against J. H. Mitchell. From an amended judgment, defendant appeals. The facts sufficiently appear in the opinion. I. The modification of the decree, entered by the court on the 5th of January, 1904, was erroneous for the reason: First, The relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint.” (Comp.

Application by Peter Kair for habeas corpus to secure his release from the county jail of Lyon County, where he was committed for a violation of ' Stats.… Held: there being even ho evidence offered on behalf of the state, that the law in itself was conclusive. It is still my candid contention that the law can and should be sustained, not only on principles of law as set out in my answer, but also that it is a health-regulating statute under the police power of the state.

A. Murphy, Judge. Action by Mrs. 0. I. Candler and another against the Washoe Lake Reservoir and Galena Creek Ditch Company. From a judgment for plaintiffs and from an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion.

A. Murphy, District Judge. Action by John Q. Adams against Evaline A. Child in ejectment. Held: and it was agreed amongst them to square their lines in accordance with the public surveys at the pleasure of either dissatisfied party, at any time, and that said agreement has always been lived up to up to the date of this suit, and became the common law in the community where the lands of plaintiff and defendant are situate, and…

Action by tbe State of Nevada against the Nevada Central Railroad Company and others. Judgment for plaintiff, and defendants appeal. This is an action by tbe state for tbe taxes for tbe year 1901 on 93 miles of main track and 2 miles of side track and tbe other real property of tbe Nevada Central Railroad Company, all situated in Lander County.

Petition for taxation of receiver’s costs. The facts sufficiently appear in the opinion. [Former opinion in this case reported on page 65 of this volume.]

A. Murphy, Judge. Action by John Devencenzi against Pietro Cassinelli, From a judgment for plaintiff, defendant appeals. Tbe facts sufficiently appear in tbe opinion. I. Appellant.calls tbe attention of tbe court to tbe following testimony: Receipt: Dayton, June 6, 1901. Received of Pietro Cassinelli tbe sum of $500 on account of labor. Giovanni Devencenzi. Receipt: Dayton, April 15, 1901. Giovanni Devencenzi signs to receipt $1,000 from Pietro Cassinelli for labor.

F. Curler, Judge. Action by the Jos. Schlitz Brewing Company against R. Grimmon. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear in the opinion. 1. The theory of the defense in the trial of this cause is that there was either an express or implied agency upon the part of one A. G. Shape by whose representations and actions the appellant was charged.

Original proceeding. Osrtiorari by the Jumbo Mining Company of Goldfield, a corporation, to review the proceedings of the District Court of the First Judicial District, Hon. M. A. Murphy, Judge, in appointing a receiver and issuing an injunction in a certain action. On order to show cause why the proceedings should not be dismissed. The facts sufficiently appear in the opinion.

Certiorari by W. M. Cook to review tbe action of the First Judicial District Court for Ormsby County in dismissing an appeal to such court from a judgment of a justice in an action against petitioner by S. M. Andrews. The facts sufficiently appear in the opinion. I. Two points only are involved in the petition — the construction of rule 37 of the district court, and whether certiorari is the proper remedy: Rule 37.

Petition for rehearing. [Former opinion herein rendered reported in this volume on page 222.] The facts sufficiently appear in the opinion. I. The court has admitted the premises and reached a wrong conclusion. The court admits, as matter of law, that when the evidence is of equal weight the receipt shall be given its prima facie effect. The receipt was written by-plaintiff himself on the book of defendant on June 6, 1901, for the sum of $500 for labor.

Original proceeding. Prohibition, on petition of Wil-. liam Bell and others, against the District Court of the First Judicial District, in and for the County of Esmeralda, and Hon. M. A. Murphy, Judge thereof. The facts sufficiently appear in the opinion. I. The history of this case is stated in petitioners’ opening brief. None of the objections urged against this proceeding are new ones.

8. Brown, Judge. John Hancock was convicted of murder and appeals. The facts sufficiently appear in the opinion. I. The rule of evidence excluding the wife from being a witness for or against a husband is applicable only where the relation of husband and wife legally exists, and does not extend to the case of a woman cohabiting with a party as his wife, but not married to him.

Petition for rehearing by appellant upon the Supreme Court affirming the judgment of the District Court. [For former opinion, see page 40 of this volume.] The facts sufficiently… Held: in some jurisdictions, to form a basis for damages for mental suffering. (8 Am. &Eng. Eney. 666.) (5) That the plaintiff did not suffer great physical pain, and therefore, even if mental suffering be indeed a necessary incident to physical suffering, that mental suffering may not be presumed.

F. Ourler, Judge. Fred Roberts and others were convicted of murder, and appeal. The facts sufficiently appear in the opinion. I. It is respectfully submitted to this court to admit as a dying declaration by Jack Welsh, the written statement introduced in the case and marked State's Exhibit J. This statement was offered as a written dying declaration of the deceased.

Mandamus by the State, on relation of Joseph Weyerhorst, against S. L. Lee, as Secretary of the Nevada State Board of Medical Examiners. From a judgment and order sustaining a demurrer to the petition, relator appeals. The facts sufficiently appear in the opinion. I. This is an appeal from the order and judgment of the district court sustaining the demurrer to the amended application and affidavit in mandamus, which, for the sake of brevity, we will refer to as the complaint.

F. Ourler, Judge, Frank Williams was convicted of murder in tbe first degree, and be appeals. Tbe facts sufficiently appear in tbe opinion. I. Tbe evidence is insufficient to justify tbe verdict in that it appears from said evidence that tbe killing was done without premeditation, premeditation being a requisite for murder in the first degree.

On motion to strike out cost bill. The facts sufficiently appear in the opinion. I. The cost bill in this action was not filed within the time prescribed by the laws of the State of Nevada. II. Said cost bill was not filed within the time prescribed by subdivision 2 of rule VI of this court. I. There is no provision of the statute requiring cost bills to be filed in the supreme court within two days. II.

<p>1. Evidence — Relevancy—Eigiit-IIour Law — Constitutionality. On an attack on the constitutionality oi the act of February 23,1903 (Stats. 1903, p. 33, c. 10), imposing a penalty on any one working more than eight hours a day in any mine, smelter, or mill for the reduction of ores, on the ground that such labor was not dangerous to health, evidence that particular reduction works and mills, including the one in which petitioner worked, were healthful, as distinguished from the healthfulness of mills in general throughout the country, was inadmissible.</p> <p>2. Constitutional Law — Deprivation oe Property — Right to Labor Due Process oe Law. The act of February 23,1903 (Stats. 1903, p. 33, c. 10), regulating the hours of labor in mines, smelters, and mills for the reduction of ores, is not unconstitutional as depriving the miner of liberty and property without due process of law.</p>

F. Curler, Judge. H. C. Lawrence was convicted of assault with intent to kill, and.appeals. The facts sufficiently appear in the opinion. I. The court erred in permitting the prosecution to attempt to prove the general and specific bad character of the defendant, when the defendant had not put his character either specifically or generally in issue. The defendant went on the stand as a witness in his own behalf.

F. Curler, Judge. Action by Rosan Gulling, Executrix, and Charles Gulling, Executor, against the Washoe County Bank. From a judgment in favor of plaintiffs, defendant appeals. The facts sufficiently appear in the opinion.

Original proceeding. Application by Frank P. Kelly, on bebalf of H. Osuna, for a writ of habeas corpus. The facts sufficiently appear in the opinion.

If. Curler, Judge. Suit by William J. Brandon against N. H. West, as administrator of the estate of B. G. Clow, deceased, and others. From a decree in favor of defendants, plaintiff appeals. The facts sufficiently appear in the opinion.