Volume 3 — Nevada Reports

Wm. Haydon, presiding. The facts are stated in the opinion. cited Reynolds v. Harris, 14 Cal. 678; Gray and others v. Dougherty et al., 26 Cal. 266, and Carpenter v. Schmidt, 26 Cal. 479, as to the force and effect of the former judgment.

C. Burbank, presiding. The facts are fully stated in the opinion. The Court erred in refusing to give the third, fourth and tenth instructions asked by defendants. These instructions were for the purpose of giving to the jury a proper construction of the deeds under which the plaintiff claimed; that construction was for the Court, and not the jury. The Court erred in instructing the jury that they were to construe the deed and ascertain the intent of the parties.

Richard S. Mesick, presiding. The facts of the case are fully stated in the opinion. The Court below should have sustained the demurrer to the complaint, for it shows no cause of action. A specific performance of a contract can only be decreed where such contract is binding at law. (Adams’ Equity, p. 77.) In this case the agreement of Jones, set forth in the complaint, was void for want of consideration. It depended on contingencies which never happened.

C. Burbank, presiding. The facts of the case are fully stated in the opinion. The husband of Mrs. Smith was a necessary party, and it was error to enter up a decree without making him a party. (Statutes of 1861, Sec. 7, p. 315.) Mrs. Smith, being a married woman at the time of conveyance to Grier, was incapable of purchasing land, or making either note or mortgage: therefore the note and mortgage are both void.

Richard Rising, presiding. To make the points taken by appellants’ counsel more intelligible, we extract from them brief the following statement of facts.

Richard Rising, presiding. The facts of the case are stated in the opinion. The jury were not selected according to the provisions of the statute. The proper challenge was to the panel. (Stone v. People, 2 Scammon, 326.) Defendant was entitled to have the formalities of the law complied with in drawing the jury. People V. Coffman, 24 Cal. 234.) The record must show the jury was legally selected.

<p>Appeal from the District Court of the Fifth Judicial District, Hon. S. L. Baker, presiding.</p> <p>The facts appear in the opinion of the Court.</p>

Richard Rising, presiding. The facts of the ease, and the main features of the pleadings on which this case was decided are fully set forth in the opinion of the Court. The Court erred in ruling that appellants could not prove the ■ value of the property at the time of conversion for want of an allegation of value in the complaint. No such allegation is necessary ; it is only necessary to aver damage. See form of Declaration in Trover.

Richard Rising, presiding. The facts of the case are stated in the opinion. The principal argument on the part of appellants was directed to a review of the testimony, with a view of showing the alleged fraud.

Appealed from the First Judicial District Court, Hon. Caleb Burbank, presiding. Our statute does not authorize the bringing of any suit on a Constable’s bonds: consequently, whatever are the liabilities of the Constable and sureties, are fixed by the rules of the common law. The sureties in the bond only undertake that the officer will faithfully perform the duties of his office.

Appealed from the District Court of the First Judicial District, Hon. Richard Rising, presiding. 1st. The Court should have sustained the demurrer, because the complaint shows no assent to the assignment by plaintiffs, and no demand until after distribution. (2 Story’s Eq., Sec. 1036, a.) 2d. The Court erred in its judgment for the same reason.

Richard Rising, presiding. It was error to compel plaintiff to introduce note of Ramirez & Arrieta. This was a new debt to plaintiff, and on a new consideration. The old note could cut no figure in the case. Admitting the note from Ramirez & Arrieta was barred by the Statute of Limitations, that was no bar to the separate and distinct undertaking of defendant to pay this debt to plaintiff.

Appealed from the First Judicial District Court, Hon. Richard Rising, presiding. The statement never having been settled by the Court or agreed to by the parties, the Court can only look to the judgment roll and findings which support the judgment. The respondent never having proposed any amendments to appellant’s statement, it is deemed an admitted statement, and no certificate of the Court is required.

Appealed' from the District Court of the Eighth Judicial District, Hon. S. H. Chase, presiding. The attachment should have been dissolved. The affidavit of plaintiff shows- a debt had been due from defendant eleven days previous to the issuing of the writ. It does not show any debt was due when the writ was issued. The Court erred in refusing to grant a continuance to defendant.

In this case, there was a petition to this Court for a mandamus to compel the Treasurer of Lyon County to pay certain warrants out of the General Fund of that county. The Treasurer admitted there were funds in the Treasury applicable to these warrants, unless the same had been diverted by what was claimed to have been a law passed at the session of the Legislature begun on the first Monday of January, 1867.

C. Burbank, presiding. On the trial of this cause, John Gillig was called as a juror. Held: if the Court erroneously overrules a prisoner’s objections to a juror, the error is not cured by a subsequent peremptory challenge, even if the prisoner does not exhaust his peremptory challenges.

S. HI Wri&ht, presiding. In this case the Court below ruled out certain testimony, without which the prosecution could not succeed. The District Attorney excepted to the ruling, and after the prisoner was found not guilty and discharged, appealed to this Court, resting his case on the ground that the Court below erred in excluding the testimony.

S. H. Wright, presiding. Section 1, Article X, of the Constitution, does not require the proceeds of mines to be taxed at the same ad valorem rate as other property. It requires other taxable property to be taxed at “ a uniform and equal rate of assessment.” The proceeds of mines are only required to be taxed. The language of some portions of that section does not apply to the proceeds of mines.

Appealed from the District Court of the First Judicial District, Hon. S. H. Wright, presiding. 1st. It is the purpose and spirit of the law to exempt from sale on execution the family residence or dwelling actually occupied as such.

S. H. Wri&ht, presiding. The facts are sufficiently stated in the opinion of the Court. The verdict in this case fails to comply with the statute, in that the jury finding for the plaintiff in an action for the recovery of money, fails to find the amount of that recovery. (Laws of 1861, 343, Sec. 176.) Under this statute it is made the duty of the jury to “ find the amount of the recovery.” The Court is not allowed to do it.

This was an original application to this Court for a writ of mandamus. When the writ was first applied for, Hillyer & Whitman, who were the regular attorneys and counsel for the Overman Silver Mining Company, represented the relator.

Appealed from the District Court of the Seventh Judicial District, Hon. Benjamin Curler, presiding. First. The Court erred in overruling the demurrer of the defendant to the plaintiff’s complaint. Second. The Court erred in overruling defendant’s motion for a continuance. Third.

This was an original application for mandamus, to this Court. The facts are stated in the opinion of the Court. Where the word “ session ” of the Legislature is used in the Constitution, it includes both general and special session, unless some qualifying words are used to confine it to one or the other. If Sec. 35, Art. IV is not restrained by some other clause, the Secretary must return vetoed bills to the first session of the Legislature (general or special).

<p>An indictment which merely states that defendants did “ attempt to take, steal, and carry away” certain chattels, etc., without setting out the acts done, or mode and manner of the attempt, is not sufficient under our statute to support the charge of “attempting to commit grand larceny.”</p>

C. N. Harris, Judge of the Third Judicial District, presiding.

Appealed from the District Court of the Sixth Judicial District, Hon. Wm. H. Beatty, presiding. The want of a proper description of the offense in the caption of the indictment is immaterial, if it be properly described and charged in the body of the indictment.

<p>A defendant tried on a criminal charge and found not guilty by a jury cannot again be put on trial for the same offense.</p>

Wm. Haydon, presiding. ' . 1st. The Court erred in overruling plaintiff’s demurrer to defendant N. P. Sheldon’s answer. 2d. The Court erred in allowing the deposition of S. W. Collins to be read as evidence on the trial of said cause. 3d. The Court erred in permitting the defendant Sheldon to testify that he was not a member of the firm of Collins & Co., such evidence tending to vary, contradict and destroy his own written contract in evidence herein. 4th.

S. H. Wright, presiding. The facts are fully stated in the opinion of the Court. The statute does not require a statement on appeal to be served on the opposite side. It only has to be filed within twenty days. The judgment having been entered on the seventh, and the statement filed December 27th, was in time.

S. H. Wright, presiding. The facts are stated in the opinion so far as they relate to the'' points decided. There is no question as to the facts of a mortgage to Drew, and' a sale by him to defendants. A mortgagee after condition broken, may sell personal property. (2 Hilliard on Mortgages, 478; 8 N. H. 293 ; 8 Johns. 96 ; 9 Wend. 88-4 j 7 Cowen, 292.) Even if the sale was illegal at first, Bryant ratified it. Drew, as mortgagee, had no right to sell the property.

Richard Rising, presiding. The facts are fully stated in the opinions of the Court. The city was entitled to five burners for the first year, say from June 1st, 1864, to June 1st, 1865. For the first six months no gas was used; for the last, just double the quantity per night fixed by law. This was consuming just the right quantity in the year, and the city is not bound for anything. The law makes it compulsory on the company to furnish the gas.

<p>Where there is a joint judgment in ejectment against several, a reversal as to one of the defendants necessarily reverses it as to all.</p> <p>An erroneous judgment may become valid and binding by lapse of time. No Appellate Court will take any active or positive steps to affirm such judgment.</p> <p>An Appellate Court certainly has the power to reverse an erroneous judgment rather than to modify it. If an order is made reversing a judgment, the term expires and the remittitur is sent to the Court below, it is then too late to ask this Court to change its order so as to modify the judgment of the Court below, rather than to make it an unqualified reversal.</p>

The question here is, who had the right of possession to the lots in controversy, when the town site was entered ? None but an actual occupant, or one deriving his title from an occupant, could lay claim to these lots. What acts are necessary to constitute an occupancy, must be determined by the settled adjudication of the State.

Geo. G. Berry, presiding. The answer was not properly verified, and if defendant wished to amend it he should have asked leave to do so; failing to ask leave, the Court did not err in entering judgment for appellant.

The facts are stated in the opinion of the Court. The summons is too uncertain to support the judgment. It requires the defendant to appear within forty days — then says default will be taken, if it does not appear within twenty days, and judgment is entered on the twenty-second day after service. The summons is further defective in not stating the amount for which judgment will be entered.

Wm. Haydon, presiding. The facts are stated in the opinion of the Court. The law of this State, and not the law of California, must govern as to limitations upon appellant’s capacity to hold land. (Story on Conflict of Laws, Secs. 424, 428, 430, 431, 434, 463 ; Ang. & Ames on Corp., Secs. 162-163; Lathrop v. Bank of Scioto, 8 Dana, 121; Runyan v. Coster’s Lessees, 14 Pet. 122; Silver Lake Bank v. North, 4 Johns.

C. N. Harris, Judge of the Third Judicial District, presiding. There is no evidence in the case showing or tending to show that there is such a corporation as the “ Lake Bigler Road Co.” There is no evidence before the Court that H. M. Yerrington or R. A. Winn, witness, was agent, or in the employ of Lake Bigler Road Co. There is no evidence tending to show that Lake Bigler Road Co. was put out of possession under and by virtue of any order of any Court.

C. N. Harris, Judge of Third Judicial District, presiding. The facts are fully stated in the opinion of the Court. The Court erred in giving judgment for defendants upon the pleadings. The complaint states a good cause of action, and states it with sufficient certainty and formality. Unless prohibited by law, a corporation may hold any property that a natural person can hold.

An application was made to this Court for a writ of certiorari, requiring the Judge of the Fourth Judicial District of the State of… Held: as will be seen by the opinion, that a change of venue should have been allowed. 1st. Because no Court in this State has jurisdiction of an action for divorce from the bonds of matrimony, and of any proceedings based upon such action. 2d. Because the first section of an Act entitled “ An Act amendatory of an Act relating to Marriage…

. This was a trial for murder in the First Judicial District, Storey County, Hon. Richard Rising, presiding.

This was an appeal from the District Court of the Third Judicial District, Washoe County, Hon. C. N. Harris, presiding. The facts are fully stated in the opinion of the Court. . Land could not be located prior to April 2d, 1867. (Act 1865, p. 174, Secs. 4-5. Act 1866, p. 194, Secs. 3-4.) Under the Act of 1867, Section 12, the parties have equal rights before the law. Neither can in this particular he preferred. (Act 1867, p. 165, Sec. 12.) Act not retrospective.

Richard Rising, presiding. The facts are fully stated in the Opinion. filed a brief touching many points that are not decided in this case, it having gone off on the point of the insufficiency of the complaint. The points in their brief which have any relation to the points decided, are as follows: - The alleged release of the fourth May was void for want of a consideration.

If from any cause, at the time of Lobdell’s appropriation, the waters of Desert Creek were passing down the natural channel to Lobdell’s, the defendants could not, after Lobdell’s appropriation, direct the water or any part of it to his damage, or to the diminution of the quantity claimed by him.

District, Storey County, Hon. Richard Rising, presiding. The facts are stated in the opinion. Mining claims in this State are regulated by statute, and a division of a mining claim can only be effected in the manner pointed out by statute. In Statutes of 1861, p. 434, under the statute the Court could not order a sale. A proceeding for partition is an equity proceeding, although regulated by statute. A Court of equity will not permit litigation by piecemeal.

Richard Rising, presiding. 1st. The note purports to have been given by an attorney under a written power. The power itself does not authorize the execution of a note in the name of the principal. ■ 2d. There was no consideration for the note. The note was given as an inducement to get one Beaty, a tenant of appellant, out of a house he was occupying, and therefore was not without consideration.

<p>Where property is taken from the possession of a stranger to the suit, who claims title by means of purchase from the defendant in such process, and such sale is valid and good between the parties to it, but void only as to 'creditors, the officer can justify the taking in such case only by showing that he represented a creditor, and that the writ under which he seized that property was regularly issued. As a general rule, process regular on its face and issued by a tribunal or officer having authority to issue it, is sufficient to protect the officer, although it may have been wrongfully issued. But when the officer attempts to overthrow a sale by the debtor, on the ground that it was fraudulent as to creditors, he must go back of his process and show the authority for issuing it.</p> <p>If however the sale by the debtor were simply colorable, or only a transfer of the possession merely for concealment, with no intention of transferring the title, the writ alone, if regular on its face and emanating from a tribunal having jurisdiction of the subject matter, will be a full protection to the officer — an action by one so holding possession of the debtor’s property.</p> <p>In pleading the judgment or other determination of a Court of limited jurisdiction, it is made necessary by the Practice Act of this State to allege that such judgment or determination was duly given or made.</p> <p>Without such allegation in the pleading, proof of the judgment or proceedings of such Court would be inadmissible.</p> <p>Per Johnson, J., dissenting.</p> <p>An objection to the introduction of evidence should specify specifically the ground of objection; therefore, objecting to the introduction of evidence upon the general ground of irrelevancy, in that it is inadmissible under the pleadings, is not sufficiently specific.</p>

<p>In an action of replevin it is not indispensably necessary to show a demand upon the defendant to return the property before suit brought. A demand serves no purpose, except to establish a conversion or a wrongful detention. When that can be established without showing a demand, a demand is unnecessary —Justice Johnson dissenting.</p> <p>When, therefore, the defendant in his answer admits the detention and claims title in himself, the title alone is put in issue, and no demand need be shown— Justice Johnson dissenting.</p>

<p>This is an original proceeding in the nature of a quo warranto in this Court.</p>