Volume 30 — Nevada Reports

F. Gurler, Judge. . Action by Thos. J. Costello, et al., against Murry Scott, et al. From a decree in favor of plaintiffs, defendants appeal. The facts sufficiently appear in the opinion. I. A cardinal principle of pleading and practice was violated in this case by entering judgment against the defendants upon the testimony produced. By the complaint, and the plaintiffs’ theory of the case, the plaintiffs were to have ' supplied Scott with money.

Brown, Judge. Proceeding by W. T. Hitt to probate the will of Mary Abel. From a judgment in favor of J. D. Abel, contestant, denying the probate, proponent appeals. The facts sufficiently appear in the opinion. I. Whatever the influences were in this case, they did not affect or ehange Mrs. Abel’s purpose.' If the influence was not strong enough to overcome her purpose and destroy her free agency, there is no undue influence within the meaning of the law.

F. Curler, Judge. Action by R. W. Linville against Agnes Scheeline, et al. Plaintiff was awarded a decree, but it was modified by allowing the costs. From an order denying a new trial, striking out cost bills, and denying an amendment to the findings, plaintiff appeals. The facts sufficiently appear in the opinion.

<p>1. Appeal — Failure to Peoseodte — Affirmance. where appellant did not appear at the hearing, and no brief was filed on his behalf until a month thereafter, when, without any stipulation or order authorizing it, one was filed setting up a question to which no exception was taken in the trial court, and regarding which no assignment of error had been made, the judgment will be affirmed.</p>

Action by A. D. Nash, and others, against Dan McNamara, and others. From a judgment for plaintiffs, defendants appeal. The facts sufficiently appear in the opinion. I. The court erred in permitting the witness O’Brien to testify as to the contents of the alleged notice of location of Union No. 2.

A. Murphy, Judge. Action by Richard Kirman against J. M. Johnson, a bankrupt, and another as his trustee in bankruptcy. From a judgment in favor of plaintiff, defendants appeal.

P. Pangan, Judge. Election contest by I. A. Strosnider against C. C. Turner. From a judgment for defendant, plaintiff appeals. The facts sufficiently appear in the opinion. I. The ballot marked Plaintiff’s Exhibit No. 3 should have-been counted for Strosnider, for the reason that the ballot shows no distinguishing mark, and is marked with a stamp in the square opposite the name of I. A. Strosnider.

Proceedings for the disbarment of Peter Breen, an attorney. Judgment of suspension, until further order of tbe court, and disbarment, subject to conditions, awarded. The facts sufficiently appear in the opinion. I. In this matter a change of venue in a criminal case had been ordered by the supreme court, and the same was to be tried de novo in an adjoining county.

<p>1. Criminal Law — Formes Jeopardy — Disbarment oe Attorney — Contempt— Punishment. Where the supreme court disbarred an attorney for misconduct in criticising the court, a proceeding to punish him for contempt for the same language will be dismissed, since to punish him for contempt will amount to the imposition of double punishment.</p>

<p>District amd Prosecuting Attorneys — Miscomduot — unwarranted Criticism of Supreme Court — Suspension. A prosecuting attorney in his argument before the supreme Court in a homicide case stated that the evidence showed that accused at the time he killed decedent meant to kill another. The court stated in its opinion that the evidence showed that such was the fact. Subsequently the prosecuting attorney stated in the district court that there was nothing in the record warranting the supreme court in saying that accused when he killed decedent intended to kill another. He admitted that his statement was not true, and that the opinion oí the supreme court correctly stated the facts, and attempted to justify his statement before the district court because of adverse criticism based on his conduct in the case. Held, that the prosecuting attorney was guilty of misconduct warranting his temporary suspension.</p>

<p>Proceedings to punish A. J. Maestretti for contempt of court.</p>

Mandamus by tbe State, on the relation of John B. Gleeson, against the Jumbo Extension Mining Company, and others. The facts sufficiently appear in the opinion. I. It is conceded in limine that the writ of mandate may not properly issue where there is an adequate remedy through the ordinary proceedings of law. Indeed, the writ was contrived to afford relief where such ordinary proceedings were not adequate to do so.

Court of the Second Judicial District of the State of Nevada, Churchill County; W. H. A. Pike, Judge. C. A. Pray and W. J. Langdon were convicted of receiving stolen goods, and appealed from the judgment and an order denying motion for a new trial. The facts sufficiently appear in the opinion. I. At common law all criminal prosecutions are local, and an indictment can. be found and prosecution had only in the county in which the crime has been committed.

Williams, against the Second Judicial District Court of the State of Nevada, in and for Churchill County, and John S. Orr, and W. H. A. Pike, Judges of said Court. The facts sufficiently appear in the opinion.

Action by the Pyramid Land and Stock Company, a corporation, against George Pierce, and others. From a judgment for plaintiff, defendants appeal. The facts sufficiently appear in the opinion. I. The act of 1893 is general; the act of 1903 is special, and relates to sheep only. The latter act does not allow attorney’s fees, but gives penal damage for repeated trespass and further forbids sheep from being herded or grazed within one mile of a home or ranch house.

P. Langan, Judge. Action by George L. Phenix, et al., v. Nikola K. Bijelich. From a judgment for plaintiffs, upon the pleadings, defendant appeals. The facts sufficiently appear in the opinion. I. The district court improperly ordered judgment against the defendant in favor of the plaintiff for plaintiff’s costs in said action. II. It is elementary that fraud vitiates a contract.

Action by L. C. Branson against the Industrial Workers of the World, and others, for damages caused by a conspiracy to boycott and injure plaintiff’s business. From an order dismissing the complaint as against part of the defendants, plaintiff appeals. The facts sufficiently appear in the opinion. I. The court erred in dismissing the action.

Pangan, Judge. M. R. Preston and Joseph Smith were convicted, respectively, of murder in the second degree and manslaughter, and they appeal. The State moves to dismiss the appeal. The facts sufficiently appear in the opinion.

Martin Bronzo was convicted of murder in the second degree, and he appeals.. The facts sufficiently appear in the opinion.

P. O’Brien, Judge. Action by the Tonopah Lumber Company, a corporation, against M. M. Riley and another, copartners under the name of the Casino Athletic Club. From a judgment for plaintiff and an order denying a motion for a new trial, defendants appeal. The facts sufficiently appear in the opinion.

H. A. Pike, Judge. The defendant was convicted of murder in the first degree, and he appeals. The facts sufficiently appear in the opinion.

Original proceeding. Certiorari by Alexander Forsyth to review a judgment of J. K. Chambers, Justice of the Peace of Manhattan Township, Nye County, State of Nevada. The facts sufficiently appear in the opinion. I. The judgment entered against the petitioner was- a default judgment, from which there was no appeal, and therefore certiorari is the only plain, speedy and adequate remedy.

<p>Original proceeding. Certiorari by Alexander Forsyth to review a judgment rendered by J. K. Chambers, Justice of the Peace of Manhattan Township, Nye County, Nevada.</p> <p>The facts sufficiently appear in the opinion.</p>

Orr, Judge. Action by U. G. Persing against the Reno Stock Brokerage Company, in which, after judgment, James T. Boyd was ordered to appear to testify as to property in his possession belonging to defendant. From an order vacating an order adjudging that certain property in the possession of James T. Boyd be delivered to the sheriff, plaintiff appeals. The facts sufficiently appear in the opinion.

A. Murphy, Judge. George Gibson was convicted of murder, and from orders denying his motions in arrest of judgment, and for a new trial, he appeals. The facts sufficiently appear in the opinion

P. Pangan, Judge. Action by Frank Marino against Lee Williams, et al. From an order refusing to dissolve a preliminary injunction issued on the complaint, defendants appeal. The facts sufficiently appear in the opinion.

Orr, Judge. . Ejectment by W. C. Short against T. A. Read. From a judgment for plaintiff and an order denying a new trial, defendant appeals. The facts appear sufficiently in the opinion. I. Appellant made a peaceable entry upon the land and his rights attach from the time that he settled thereon.

ORIGINAL proceeding. Certiorari by Albert L. Hettel against the First Judicial District Court, in and for Esmeralda County, and Frank P. Langan, Judge, to review orders made in the case of W. T. Hall against the Interstate Lumber and Mill Company. I.The court never acquired jurisdiction in this proceeding to make the orders complained of.

Original application. Certiorari by the Florence-Goldfield Mining Company against the District Court of the First Judicial District of the State of Nevada, Esmeralda County, Frank P. Langan, District Judge, and others, to review an order made in the District Court by the Judge thereof. The facts sufficiently appear in the opinion. I. The court cannot even by consent of parties pass upon questions not raised by the written allegations of the pleadings.

Orr, Judge. Action by G. Edward C. Travers against John Barrétt and another. From a judgment for plaintiff, defendants appeal. Statement of Facts. The defendants are husband and wife, and owned, possessed, and conducted a rooming house in the City of Reno.

Original proceeding • by the State, on the relation of M. E. Ryan, against M. J. Murphy, to oust respondent from the office of Sheriff of Lander County. The facts sufficiently appear in the opinion. I. The absolute right to resign at any time is granted every officer of the state by the laws thereof. This is declared not only'by judicial determination (State v. Clarke, 3 Nev. 574; State v. Beck, 24 Nev. 98), but by statute. Comp.

A. Murphy, Judge. Action by the Central Trust Company of California against the Holmes Mining Company, a corporation, et al. From a judgment for plaintiff, defendants appeal. The facts sufficiently appear in the opinion.

Langan, Judge. Action by the Tonopah Lumber Company against the Nevada Amusement Company, et al. From a judgment for plaintiff, defendants appeal.

Prohibition by Dudd Moore against John S. Orr and W. H. A. Pike, Judges of the District Court of the Second Judicial District of the State of Nevada, Washoe County, and the District Court, to prevent respondents from taking original jurisdiction of a case. The facts sufficiently appear in the opinion.

Original proceeding. Prohibition by Dudd Moore against John S. Orr and W. H. A. Pike, Jtídges of the District Court of the Second Judicial District of the State of Nevada, in and for Washoe County, and the District Court thereof. The facts sufficiently appear in the opinion.

<p>Original proceeding. Prohibition by Jennie Dame against John S. Orr and W. H. A. Pike, Judges of the Second Judicial District Court of the State of Nevada, in and for Washoe County.</p> <p>The facts sufficiently appear in the opinion.</p>

Original proceeding. Mandamus by the State of Nevada, on the relation of John Holley and another, against H. Boerlin, et al., County Commissioners of Esmeralda County, Nevada. The facts sufficiently appear in the opinion. I. Municipal corporations may invest funds until needed for municipal use. (Foot v. Salem, 14 Allen, 87; Spaulding v. Arnold, 6 N. Y. Supp. 336; State v. Bowers, 26 Oh. Cir. Ct. 326, affirmed 70 Ohio St. 423, 72 N. E. 1155; New York v. Nat.

Application by the State of Nevada, on the relation of H. T. Jones and G. S. Garcia, for a writ of prohibition against George S. Brown, District Judge, and Pete Corta. The facts sufficiently appear in the opinion.

<p>Application by the State of Nevada, on the relation of H. J. Jones, et al., for a writ of prohibition- to George S. Brown, District Judge, et al.</p> <p>The facts sufficiently appear in the opinion.</p>