Volume 32 — Nevada Reports

' Appeal from the District Court of the Fifth Judicial District of the State of Nevada, Nye County; J. P. O’Brien, Judge. Action by ft. M. Henningsen against the Tonopah and Goldfield Railroad Company. On motion to dismiss defendant’s appeal upon judgment for plaintiff. The facts sufficiently appear in the opinion.

<p>1. Appeal and Erbob — Review— Findings of E’act.</p> <p>The findings, being supported by any substantial evidence, cannot be disturbed on appeal.</p> <p>2. Mines and Minerals — Subleases—Right to Rent — Estoppel.</p> <p>Plaintiffs, holding a lease from G. of mining land, which had five months more to run, without any’right to an extension, gave defendants a sublease of half the land, for the balance of the term, less a day, for an expressed consideration of $1,000 and a covenant to pay plaintiffs a royalty on ores extracted. But in fact a condition on which defendants took the sublease was that they should have more time, and at the time of the execution of the sublease G. executed to defendants a lease of the land covered by the sublease, by its terms commencing then, and expiring two months after the lease to plaintiffs, and reciting that it was subject to said lease to plaintiffs; said lease from G. to defendants being obtained with the knowledge and assistance of plaintiffs, and as an inducement and consideration for the taking of the sublease by defendants. Plaintiffs afterwards obtained an extension of their lease for two months. Held, that the extension of plaintiffs’ lease should be considered as affecting only the part of the land leased them which was not covered by the lease to defendants, and that plaintiffs were estopped and precluded .from claiming royalty on ore extracted by defendants after the expiration of the original lease to plaintiffs.</p> <p>3. Evidence — Pabol Evidence — Varying Contbaot.</p> <p>The statement of a witness that he considered the sublease and the transaction in relation to it between the parties as a sale of plaintiffs’ interest in their lease to defendants was inadmissible, as the sublease could not be varied by parol, in the absence of an allegation of fraud or mistake.</p> <p>i. Evidence — Conclusions of Witnesses.</p> <p>Where witnesses are not testifying as experts, they cannot give their conclusion that a sublease and transaction in relation to it between the parties amounted to a sale of plaintiffs’ interest in their lease, but their testimony should be limited to what was said and done.</p> <p>5. Pabol Evidence — Considbbation of Conteact.</p> <p>Testimony that a condition of defendants taking a sublease of plaintiffs, not expressed in the sublease, was an exaction by defendants that they be given further time after the expiration of the lease to plaintiffs was admissible to show a further consideration, which may be shown by parol in addition to, or contradiction of, the consideration stated in the instrument.</p>

P. O’Brien, Judge. Fred Skinner was convicted of murder in the first degree. From the judgment and an order denying a new trial, he appeals. The facts sufficiently appear in the opinion.

S. A. Pike., Judge. Action by Eobert M. Burch against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. Petition for rehearing. The facts sufficiently appear in the opinion. Held: that under the particular facts appearing in the case the plaintiff was guilty of contributory negligence as a matter of law.

APPLICATION ■ by W. Woodburn, in behalf of Edward Hall, for a writ of habeas corpus for the discharge of Edward Hall from imprisonment. The facts sufficiently appear in the opinion.

Somers, Judge. J. W. Simpson was convicted of housebreaking,' and he appeals. The facts sufficiently appear in the opinion. I. The court erred in admitting over defendant’s objection and exception, incompetent, irrelevant and immaterial evidence, which evidence, so admitted, was prejudicial to the rights of the defendant.

P. Langan, Judge. C. Clark was convicted of an attempt to escape from jail, and appeals. I. Proof of all the acts charged against the defendant in the indictment would not establish the crime charged in the indictment.

P. Langan, Judge. W. 0. Grady was convicted of an attempt to escape from jail, and appeals. The facts sufficiently appear in the opinion. I. The trial court erred in admitting over defendant’s objection incompetent, irrelevant and immaterial evidence offered by the state. To be admissible either for or against a defendant, evidence must tend to prove some fact in issue or some fact relevant to some fact in issue, and it must not be so remote as to be immaterial.

Action by J. F. Bradley against Esmeralda County. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion. I. The Esmeralda salary act of 1905 does not allow the sheriff, as ex officio license collector, any commissions for the collection of licenses.

Action by Esmeralda County against J. F. Bradley and others. From a judgment for defendants, plaintiff appeals. The facts sufficiently appear in the opinion.

H. A. Pile, Judge. Action by J. B. Menardi against William Wacker and another. From a judgment for plaintiff, defendants appeal. The facts sufficiently appear in the opinion. I. Certificates of stock have uniformly been held in all of the late cases to be quasi-negotiable and hence a delivery with an endorsement in blank has always been held to be good.

H. A. Pike, Judge. Action by P. H. Wolf against the County of Humboldt. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion.

Original proceeding. Mandamus by the State, on the relation of Clara Cook, against Frank P. Langan, to compel respondent, as judge of the district court, to settle a proposed statement on a motion for a new trial. The facts sufficiently appear in the opinion.

P. Langan, Judge. Action by James Wiggins against Martin Pradere. There was a judgment for plaintiff, and, from an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion.

<p>1. Criminal Law — Appeal—Defective Transcript on Appeal — Necessity of Proceedings to Coreeot.</p> <p>Though the supreme court has adopted a liberal practice in granting applications to amend delects in transcripts, where no move is made pursuant to supreme court rule 7 to obviate a valid Objection to a transcript, there is no other alternative than to sustain the objection.</p> <p>2. Criminal Law — Filing Bill of Exceptions as Part of the Record.</p> <p>A bill of exceptions, when properly settled, should be filed as required by Comp. Laws, 4390, 4415, and it then becomes a part of the record.</p> <p>3. Criminal Law — Transcript on Appeal — Partial Certification.</p> <p>Where the record of an appealed case is in two volumes, only one of which is certified “to be a true and correct transcript of the appeal herein,” the supreme court can only consider the volume so certified.</p> <p>4. Criminal Law — Record on Appeal — Instruction Given on Court’s Own Motion.</p> <p>In view of Comp. Laws, 4415, enumerating the bill of exceptions and the written charges asked of the court among the papers required to be filed as a part of the record in a criminal case, but not expressly mentioning instructions given by the court of its own motion, such instructions are not a part of the record on appeal unless embodied in the bill of exceptions.</p>

<p>1. Cebtiorabi — Grounds fob Writ — Errors—Vacating Default Judgment.</p> <p>Under civil practice act, sec. 68 (Comp. Laws, 3163), permitting the court, in furtherance of justice, to relieve a party from a judgment or order taken against him through his mistake, inadvertence, surprise, or excusable neglect, the trial court had jurisdiction to set aside, by an order of May 25th, a default judgment for defendant entered on March 11 th, upon motion thereof on the ground that plaintiff had no notice of the time of trial or entry of judgment until ten days after its entry, and hence certiorari will not lie to review its action in doing so; certiorari being available to review the order of an inferior tribunal only so far as to determine whether it had jurisdiction to make it, error in the order or the proceedings not being reviewable.</p>

Original proceeding. Mandamus by the State, on the relation of J. G-. Kaufman and others, against C. T. Martin and others, constituting the Board of County Commissioners of Lyon County. I. In the present case we might say the proposition, therefore, must go to this extent: That the county commissioners are clothed with absolute and despotic authority over the rights of the petitioners.

P. O’Brien, Judge. Action by L. C. Van Riper and another against Charles H. Botsford and others. From the judgment rendered, defendant Botsford appeals. Heard on motion to dismiss appeal and to strike out certain portions of the record. The facts sufficiently appear in the opinion.

P. Langan, Judge. Action by the Rhodes Mining Company against the Belle-ville Placer Mining Company. From an order denying a motion to dissolve a preliminary injunction, defendant appeals. On petition for rehearing. The facts sufficiently appear in the opinion.

H.A. Pike, Judge. Action by the Symons-Kraussman Company, a corporation, against the Reno Wholesale Liquor Company, a corporation. From an order opening a default judgment in favor of plaintiff and dismissing the complaint, plaintiff appeals. The facts sufficiently appear in the opinion.

Court of the Second Judicial District of the State of Nevada, Washoe County; John S. Orr, Judge. Action by A. A. Malmstrom and wife against the People’s Drain Ditch Company. Judgment for plaintiffs, and defendant appeals. The facts sufficiently appear in the opinion.

Original PROCEEDING. Certiorari by Charles F. Kapp against the Seventh Judicial District Court for Esmeralda County, Peter J. Somers, Judge thereof, and Margaret C. Kapp, to review an order for judgment, and the judgment thereon that Respondent Kapp have execution against relator to enforce payment of alimony pendente lite. The facts sufficiently appear in the opinion.

Orr, Judge. Action by Eugene F. McCafferty against May M. Flinn and another. From an order granting plaintiff a new trial as to defendant Case, defendant Flinn having been dismissed, Case appeals. Petition for rehearing. The facts sufficiently appear in the opinion.

■ Action by the Tonopah and Goldfield Railroad Company against John Doe Fellanbaum and others. Judgment for plaintiff, and defendants appeal. On petition for rehearing. The facts sufficiently appear in the opinion.

P.Langan, Judge. Action by James M. Russell against Esmeralda County. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion. I. Does the act of 1883, in providing for fees and compensation of constables for service and travel in criminal cases, refer to section 5 of the act of 1875, or to section 5 of the act of 1883? It would seem that the language of the statute of 1883 is clear and explicit in this regard.

Action by Augustus Tilden against Esmeralda County. From a judgment for defendant, plaintiff appeals. The facts sufficiently appear in the opinion.

On, Judge. Action by R. C. Leeper against Lyle Jamison and others, City Council of the City of Reno, and another. Defendants had judgment, and plaintiff appeals. The facts sufficiently appear in the opinion. I. The main questions on this appeal are: (1) Has the tenure of office of the chief of police of Reno been declared? (2) Could the council with the mayor remove the appellant without cause, notice or hearing?

Action by the State of Nevada against Daniel O’Keefe and others. From the judgment, plaintiff appeals. The facts sufficiently appear in the opinion. I. Killing” like stealing” and theft” is a layman’s term, and all killings” are not crimes, but the court, despite the statutory provision that the bond shall name the nature of the offense charged” construed the allegation to mean a felonious killing and held the description sufficient.

Orr, Judge. Action by Katheryn A. Collins against the Nat. C. Goodwin and Company, Incorporated. Plaintiff had judgment, and defendant appeals. On motion to dismiss appeal. The facts sufficiently appear in the opinion.

Original proceeding. Application for writ of prohibition by Bart Knight against the District Court of the Seventh Judicial District, and another. The facts sufficiently appear in the opinion. I. Section 4167 of the Compiled Laws provides the statutory power of the grand jury.

Action by H. L. Judell and another, copartners, doing business under the firm name of the H. L. Judell Company, against the Goldfield Realty Company. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

Action by Angus R. Gibson and another against P. H. Hjul, administrator'of John Pardy, deceased, and another. Henry K. Mitchell intervened, and, from a judgment for defendant Pardy, appeals. The facts sufficiently appear in the opinion. I. The court erred in admitting as evidence defendant’s notice of location. Said notices are void, because each notice omits the fourth and fifth subdivisions of section 210 of the Compiled Laws.

Original proceediNG. In the matter of the application of John Prosole for a writ of habeas corpus to obtain release from imprisonment. The facts sufficiently appear in the opinion.

Orr, Judge. C. C. Petty was convicted of murder in the first degree, and appeals. The facts sufficiently appear in the opinion.

P. O’Brien, Judge. William Martel was convicted of having burglars’ tools in his possession with intent to enter a store, and-he appeals. The facts sufficiently appear in the opinion.

P. Langan, Judge. Action by Henry Biter against W. G. Douglass, Secretary of State. From a judgment for defendant, plaintiff appeals. The facts sufficiently appear in the opinion'. As said by the Supreme Court of the State of California in discussing a similar law: There is at once to be perceived an express limitation upon the powers of political parties, which hitherto they have exercised, of adopting their own modes for the election of their candidates.

P. Langan, Judge. Action by Winfield Scott Prosky and another against Charles Clark and others. From an order granting a motion for a nonsuit, plaintiffs appeal. The facts are sufficiently stated in the opinion. The common-law doctrine of champerty and maintenance is not in force in Nevada. As to the general current of authority see Cyc. vol. 6, p. 850, A, B, C; Brown v. Bigne, 21 Or. 260, 28 Pac. 11; Fern v. McOarrell, 208- Pac. 615, 57 Atl. 1108.

Action by Marvin Arnold against the Goldfield Third Chance Mining Company. From an order denying a motion to vacate a sale on execution against defendant, it appeals. The facts sufficiently appear in the opinion.

H. A. Pile, Judge. Suit by William Levy against Richard Byland. From an order sustaining a demurrer to the complaint, and from a judgment dismissing it on refusal to amend, plaintiff appeals. The facts sufficiently appear in the opinion. I. The complaint fails to state a cause of action, for the reason that there is nothing to show any identity between the subject-matter of the alleged contract and the subject-matter of the purchase.

Application by the State, on the relation of R. C. Moore, for writ of mandamus against Manhattan Verde Company and another. The facts sufficiently appear in the opinion. I. The first question to be determined by this court is, Is mandamus the proper remedy?