Volume 34 — Nevada Reports

A. French, Judge, presiding. Action by M. Quilici against I. A. Strosnider and others, as the Board of County Commissioners of Lyon County. From a judgment dissolving a preliminary restraining order and denying an injunction, plaintiff appeals. The facts sufficiently appear in the opinion. The case at bar raises a question of fact, and not of law. The original decisions upon which this county-seat removal act is based so state.

Action by P. Paroni against G. B. Simonsen.. Judgment for plaintiff, and defendant appeals. On motion to dismiss the appeal with damages. The facts sufficiently appear in the opinion.

Original proceeding. Application of Albert W. Lewis for a writ of habeas corpus. The facts sufficiently appear in the opinion.

<p>Appeal from the District Court of the Seventh Judicial District of the State of Nevada, Esmeralda County; Theron Stevens, Judge.</p> <p>Action by Fritz Werner against Laura Babcock. From a judgment for defendant, plaintiff appeals.</p> <p>The facts sufficiently appear in the opinion.</p>

R. Averill, Judge. Action by W. R. Cutler against the Pittsburg Silver Peak Gold Mining Company and another. Judgment for plaintiff, and defendants appeal. The facts sufficiently appear in the opinion. It is feebly urged by counsel that the damages awarded are excessive. For what reason they so appear to them has not been made clear to us.

Original proceeding. Application for certiorari by the National Mines Company against the Sixth Judicial District Court for the County of Humboldt and the judge thereof thereof, to review an order of the judge.

Original proceeding. Application of William J. Hose for a writ of habeas corpus. The facts sufficiently appear in the opinion. The return of respondent sets forth the form of the warrant by reason of which the appellant is detained, restrained and deprived of his liberty. The petitioner in this instance relies upon a fatal defect in the warrant for his release from custody at this hearing.

Original proceeding. Mandamus by the State, on the relation of Eugene Howell, as State Bank Examiner, against Frank L. Wildes, as receiver of the State Bank and Trust Company. The facts sufficiently appear in the opinion.

Original proceeding. Application for writ of mandamus by the State, on the relation of Edward C. Jen-nett, against Theron Stevens. The facts sufficiently appear in the opinion. The act of February 20, 1869 (Comp. Laws, 339-347), the general state act covering the execution of townsite trusts, contains no provision whatever for any survey of the townsite lots.

Original proceeding. Application by the State, on the relation of Rachel Schloss, for writ of prohibition against Theron Stevens. The facts sufficiently appear in the opinion.

Somers, Judge. Patrick C. Casey was convicted of murder in the first degree, and he appeals. The facts sufficiently appear in the opinion.

Brown, Judge. Action by Margaret Lytle, as administratrix of Charles Lytle, deceased, against P. H. Devlin. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion. There being no dispute as to the facts in this case, which are fully set forth in the appellant’s answer to the respondent’s amended complaint, it would seem the only question for this court to decide is the law applicable thereto.

<p>Appeal from the District Court of the Fifth Judicial District of the State of Nevada, in and for Nye County; Mark R. Averill, Judge.</p> <p>Action by the Roberts, Johnson & Rand Shoe Company against H. A. McKim. From a judgment granting insufficient relief, plaintiff appeals.</p>

H. A. Pike, Judge. J. E. Raymond was convicted of forgery, and appeals. The facts sufficiently appear in the opinion. The defendant in this case was indicted for forgery under section 4728 of the Compiled Laws defining forgery.

Actions by E. Martin & Co. and by J. & A. Freiberg, copartners, against W. P. Kirby and another. From judgments for plaintiff in each action, defendant, the United States Fidelity and Guaranty Company, appeals.

Langan, Judge. In the matter of the estate of Walter M. Cook, deceased. From a judgment and order denying the petition of Clara Louise Cook for a homestead out of decedent’s separate property, petitioner appeals. The facts sufficiently appear in the opinion.

<p>1. Habeas Cokpus — ExtRADition —Identity op PRISONER — SUFFICIENCY OP EVIDENCE.</p> <p>Upon a petition for discharge from arrest on a warrant of extradition, evidence as to petitioner’s identity with the person wanted in another state held to preponderate in favor of petitioner, and to require his discharge.</p>

Brown, Presiding Judge. Action by Lyon County against Storey County. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Statement of Facts This is an action brought by Lyon County against Storey County to recover an amount of taxes levied and collected by Storey County upon certain property alleged to be within the boundaries of said Lyon County.

<p>Original proceeding. Mandamus, by the State, on the relation of George T. Mills, as Chairman of the Board of Fish Commissioners, against William McMillan, as State Treasurer of the State of Nevada.</p>

<p>1. Habeas Corpus — Complaint—"Inn”—"Hotel.”</p> <p>The charge of a complaint that accused "did keep and manage the Big Meadow Hotel, a house of public resort, in a disorderly manner;’is a sufficient charge, at least against collateral attack of the judgment by habeas corpus, of the offense denounced by Comp. Laws, 4920, of keeping an "inn” in a disorderly manner, as it must be assumed that a "hotel” is an "inn.”</p> <p>2. Criminal Law — Judgment—Clerical Mistake — Correction.</p> <p>The sentence imposed by a justice being imprisonment for thirty days, his entry of judgment of imprisonment for the term of "thirty,” omitting the word "days;’ is merely.a clerical mistake, which may be corrected by him in the absence of defendant.</p> <p>3. Idem — Commitment After Dismissal op Appeal — Justice Court.</p> <p>Commitment by a justice under his judgment is valid, though appeal was taken from the justice to the district court, such court having dismissed the appeal, even if the dismissal was erroneous; it being an error which was within the jurisdiction of that court, and a final disposition of the case there.</p>

<p>1. Statutes — Title—Sufficiency—House of Ill-Fame.</p> <p>Stats. 1911, c. 133, secs. 217, 218 (Rev. Laws, 3457, 3458), making it unlawful to keep a house of ill-fame within 800 yards of a schoolhouse, etc., is not unconstitutional, under Const, art. 4, sec. 17, as embracing matter not covered by-the title, "An act concerning public schools and repealing certain acts relating thereto.”</p> <p>2. CONSTITUTIONAL LAW — VESTED RIGHTS — HOUSES OF ILL-FAME.</p> <p>Stats. 1911, c. 133, secs. 217, 218 (Rev. Laws, 3457, 3458), prohibiting the keeping of houses of ill-fame within 800 yards of schools, etc., is not unconstitutional, as interfering with vested rights, as against one conducting such place in accordance with an ordinance of the city, adopted pursuant to previous legislative authority.</p> <p>3. Statutes — Houses of Ill-Fame — Statutes—Repeal.</p> <p>Crimes and punishment act, effective January 1, 1912, prohibiting the keeping of a house of ill-fame within 400 yards of a school, etc. (Rev. Laws, 6510), did not, until January 1, 1912, supersede Stats. 1911, c. 133, secs. 217, 218, enacted the same day as the other act, and fixing an 800-yard limit.</p> <p>4. Statutes — Time of Taking Effect — Legislative Power.</p> <p>In the absence of constitutional restriction, the legislature is free to fix in each act the time it is to take effect.</p> <p>5. Statutes — CONSTRUCTION—Conflicting Provisions.</p> <p>Separate acts covering the same subject-matter should be so construed, if possible, as to allow both to stand, where the language is consistent and plain. '</p>

<p>1. Appeal and Ereoe — Affirmance—Abandonment op Appeal.</p> <p>That appellant having failed for more than six months to file briefs, or to appear and argue the case on a motion to dismiss or on the merits after notice of the hearing, and having made no request to submit the cause without argument or brief, warrants an inference of abandonment of the appeal, which was from the judgment roll aloné, so that the judgment is properly affirmed; no glaring defects appearing on the face of the judgment roll.</p>

Mitchell, Judge. Robert Orr was convicted of assault with a deadly weapon with intent to do great bodily injury, and from an order granting new trial, the State appeals. The facts sufficiently appear in the opinion.

Mitchell, Judge. H. R. Kruger was prosecuted for forgery and a demurrer sustained to the indictment. The State appeals. The facts sufficiently appear in the opinion.

Mitchell, Judge. Frank Bauer was convicted of burglary, and from an order granting a new trial the State appeals. The facts sufficiently appear in the opinion.

H. A. Pike, Judge. Robert Jorme and another were convicted of burglary, and they appeal. The facts sufficiently appear in the opinion.

F. Moran, Judge. John Carey was convicted of assault to commit the crime against nature, and he appeals. The facts sufficiently appear in the opinion.

Original proceeding. Application of the Reno Bar Association for the disbarment of Robert Scoular, an attorney at law. The facts sufficiently appear in the opinion.

Orr, Judge. Action by Nellie G. McCormick against Lewis Winters and others, in which Alice M. Winters, as executrix, and Margaret McCormick, by her guardian ad litem, were substituted as plaintiffs. From a judgment for plaintiff, and an order denying their motion for new trial, defendants appeal. The facts sufficiently appear in the opinion.

H. A. Pike, Judge. Action by the Self & Sellman Mill and Building Company against William C. Savage and others. From a judgment for plaintiff, William C. Savage appeals. The facts sufficiently appear in the opinion.

Original proceeding. Certiorari by Ernest Poupart to review the action of the District Court of the Seventh Judicial District of the State of Nevada. The facts sufficiently appear in the opinion.

Somers, Judge. Action by Neil McLean and another against D. Mackenzie & Co., a corporation. From a judgment for plaintiffs for less than the amount claimed, plaintiffs appeal. The facts sufficiently appear in the opinion.

Brown, Judge. Action by Charles Doherty against George Pratt and others. From a judgment for defendants, and an order denying a new trial, plaintiff appeals. The facts sufficiently appear in the opinion.

H. A. Pike, Judge. Action by B. A. Gamble and F. S. Chadbourne against L. J. Hanchett, The Silver Peak Mines, and others. Held: That the mortgage of 1879 was valid in its inception and based upon a good consideration; (2) that its foreclosure was not barred by the statute of limitations; (3) that Han-chett had no such interest in the property described in the contract of option as gave him the right to plead the statute of limitations; (4) that John I. Blair…

Moran, Judge. Action by E. A. Richardson and others against the National Ore Purchasing and Reduction Company and another. From a judgment for plaintiffs, and from an order denying a new trial, the named defendant appeals. The facts sufficiently appear in the opinion.

Action by the First National Bank of Goldfield against J. T. Murphy. From an order dissolving an attachment, plaintiff appeals. The facts sufficiently appear in the opinion. Our statute, different from the statutes of other states, makes the requisite of the affidavit the existence or nonexistence of security, at the time of making the affidavit. If the attaching creditor once had security, but at the time of making the affidavit he has none, then the affidavit is good.

Action by J. R. Elgan against the Frances-Mohawk Mining and Leasing Company and Keane Wonder Mining Company. From a judgment for plaintiff, the Keane Wonder Mining Company appeals. Statement of Facts On or about the month of July, 1906, one Homer Wilson, by purchase from one John Keane and another, became the owner of something like 1,100,000 shares of the capital stock of the Keane Wonder Mining Company, and succeeded to the presidency of the corporation.

<p>1. Elections — Nominations — Primary Elections — Nomination by Party Convention — Statutory Provisions.</p> <p>Tlie original primary election law (Stats. 1909, c. 198), sec. 2, which declared that the act should “not apply to special elections to fill vacancies, to the nomination of party candidates for presidential electors,” and that it should not be construed as affecting the right of political parties to hold conventions for the selection of delegates to national conventions, was amended by Stats. 1911, c. 165, to provide that the act should “not apply to special elections to fill vacancies to the nomination of party candidates for presidential electors,” thus omitting the comma after the word “vacancies” as shown in the original act. Section 27 of the original act provided that vacancies occurring after the holding of any primary election should be filled by the party committee of the city, counts'-, or state as the case might be.' The omission of the comma must be regarded as the result of a clerical error, otherwise two methods of selecting candidates to fill vacancies in the office of presidential electors, and hence electors chosen bsr a convention of a political parts* were the onty names entitled to go upon the official ballot.</p> <p>2. Statutes — Construction—Punctuation.</p> <p>In construing statutes rendered uncertain by punctuation, the courts property regard such marks onty as an aid in arriving at the correct meaning of the words of a statute, not as having a controlling influence; and courts should not hesitate to repunctuate a statute where it is necessary to arrive at the true legislative intent or where punctuation or omission thereof is caused hy clerical error or inadvertence, or where it is evident that the punctuation gives to the statute an absurd or meaningless interpretation.</p> <p>3. Statutes — Construction—Avoidance of Inconsistency.</p> <p>In the construction of statutes, courts should harmonize inconsistent parts of acts bearing upon the same question when it is possible to arrive at the true legislative intent thereby, and should avoid a construction which creates inconsistent positions whenever it can possibly be done without doing violence to the legislative intent.</p> <p>A XÍANDAMUS-PREMATURE APPLICATION FOR WRIT — DENIAL.</p> <p>An application for mandamus to compel the secretary of state to accept and file certificates of nomination of presidential electors chosen at a Democratic party convention, brought before the expiration of the time provided for filing with the secretary of state certificates of nomination by convention, is premature and must be denied.</p> <p>3. Evidence — Presumptions—Performance of Official Duty.</p> <p>It'will be presumed that the secretary of state will do his duty in filing and accepting certificates of nomination when presented at the proper time.</p>

Original proceeding. Application of Earl Simmons and others for a writ of habeas corpus. The facts sufficiently appear in the opinion. Bias or prejudice is not a disqualification of a justice of the peace such as to prevent him from attending to his official duties under the provisions of Rev. Laws, 4926 (Allen v. Riley, 15 Nev. 455). Unable to attend” contemplates physical inability (66 Pac. 342). Bias is not a disqualification under Rev. Laws, 4865.

H. A. Pike, Judge. Action to set aside a default judgment foreclosing a mortgage by the Nevada Consolidated Mining and Milling Company against C. R. Lewis. Judgment for defendant, and motion for new trial denied, and plaintiff appeals. The facts sufficiently appear in the opinion.