Volume 35 — Nevada Reports

Original proceeding in quo warranto to determine the legality of the election of respondents to the offices of Attorney-General and Clerk of the Supreme Court, respectively. Held: and that they were not properly kept or preserved as directed by the election law.

Action by the Riverside Fixture Company against G. W. Quigley, L. L. McKissick, and another, to foreclose a lien for labor and materials. From a judgment for plaintiff, defendant L. L. McKissick appeals. The facts sufficiently appear in the opinion.

Original proceeding for writ of prohibition. A writ of habeas corpus issued by an appellate court operates as supersedeas. (15 Am. & Eng. Ency. Law, 133; Bacon’s Abr., vol. 9, 283-284; Osborn v. Davis, 60 Kan. 695; 9 Ency.

Original proceeding for writ of prohibition by the State, on the relation of George Springmeyer, against George Brodigan, Secretary of State, to prohibit respondent from certifying to the county clerks the name of relator and other candidates for public office as independent candidates. The facts sufficiently appear in the opinion.

<p>1. Criminal Law — Trial—Pendins Sentence of Life Imprisonment.</p> <p>Under Rev. Laws, 6908, 6921, 7459, providing that every person shall be liable to punishment for a public offense committed by him, that there is no limitation of the time within which a prosecution for murder must be commenced, and that, when it is necessary to have one imprisoned brought before a court, an order for that purpose may be made, one sentenced to life imprisonment for murder may be tried pending his incarceration for a murder previously committed, and in the event of his conviction thereof, and sentence to death, the sentence may be carried into execution, notwithstanding section 7256, providing that, where defendant has been convicted of two or more offenses before judgment on either, the judgment may be that the imprisonment on any one may commence at the expiration of the imprisonment on any other.</p> <p>2. Criminal Law — Continuance—Discretion of Trial Court.</p> <p>A continuance in a criminal case is within the discretion of the trial court, and in the absence of an abuse of discretion its action will be sustained.</p> <p>3. Criminal Law — Speedy Trial — Objections.</p> <p>Where accused, Indicted under two indictments for a double murder, did -not object to a continuance of the trial under one indictment, pending his trial under the other, resulting in his conviction and sentence to life imprisonment, and did not apply for a speedy trial, he could not complain that he was not given a speedy trial.</p> <p>4. Criminal Law — Speedy Trial — Objections.</p> <p>Where accused, indicted under two indictments for a double murder, obtained a change of venue in the case of one indictment, but the other indictment was not removed, and at the next term of court the latter case was called for trial, and subsequently removed to another county on a change of venue, accused could not complain that he was not given a speedy trial under such indictment, as guaranteed by the constitution and Rev. Laws, 7396.</p> <p>5. Criminal Law — Speedy Trial — Objections.</p> <p>The statute guaranteeing a speedy trial does not apply while accused is in prison serving a sentence on another charge; but accused, serving such sentence, may demand that he be tried on all indictments against him, and a refusal to try him may enable him to invoke the statute.</p>

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

Moran, Judge. C. W. King was convicted of the crime of living with a common prostitute, and appeals. The facts sufficiently appear in the opinion. The indictment does not contain any statement of facts constituting the offense. The living with might have been innocent of wrong doing. It might have been under the sanctity of marriage. It might have been under the relationship of landlord and tenant, or in many ways not in contemplated violation of the law.

R. Averill, Judge. Suit by the Indiana Nevada Mining Company against the Gold Hills Mining and Milling Company. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion. The Indiana No. 1 was a valid location taking in all the ground to the true end óf the Conservative, and including the disputed area. The location notice of the Indiana No. 1 properly called for 300 feet on each side of the middle of the vein.

Averill, Judge presiding. Primary election contest by Adams F. Brown against John H. Dunn and another, to determine the nomination for the office of justice of the peace of Goldfield township. Judgment for contestant, and defendant Dunn appeals. The facts sufficiently appear in the opinion. No parties plaintiff or defendant are designated and the petition should have been dismissed.

Somers, Judge. Action by the Goldfield Consolidated Company against the State of Nevada and Esmeralda County to review the assessment of certain mining claims for taxation. From a -judgment for plaintiff, defendants appeal.

Original proceeding for writ of mandamus, by the State, on relation of John F. Miller, against Harley A. Harmon, County Clerk of Clark County. The facts sufficiently appear in the opinion. It was not the intention of the legislature to throw open the door to fraud. If the clerk has the power claimed by him, he could throw out a perfectly valid certificate after filing by reason of his acceptance for filing of a later one.

Somers, Judge. Action by W. J. Douglass, as Trustee, against J. S. Thompson and others. Judgment in favor of defendants, and plaintiff appeals. The facts sufficiently appear in the opinion. The word recover,” as used in section 5520 of the Revised Laws, relating to mortgages, has reference to an action at law. (Jackson v. Lodge, 36 Cal. 28; Norton v. Winter, 62 Am.

Original proceeding in mandamus by the State, on the relation of the Pacific Reclamation Company and another, against Edward A. Ducker, as Judge of the Sixth Judicial District Court. The facts sufficiently appear in the opinion. The question to be decided is whether or not the amendments of 1911 to the practice act (Rev. Laws, 5829) have repealed the act of 1865 (Rev. Laws, sec. 4833).

Somers, Judge. Condemnation proceedings by Las Vegas and Tonopah Railroad Company against W. G. Summerfield and W. S. Johnson, doing business as Summerfield & Johnson, and another, in which E. S. Johnson and the Band Goldfield Mining Company intervene. From a judgment distributing an award of damages, W. G. Summerfield and W. S. Johnson appeal. The facts sufficiently appear in the opinion.

Somers, Judge. Mandamus by W.C. Stone against M. J. Bell, as County Auditor of the County of Esmeralda. From a judgment granting a peremptory writ, respondent appeals. Statement op Facts This is an appeal from a judgment granting a peremptory writ of mandamus commanding the appellant to issue his warrant on the county treasurer of Esmeralda County in favor of the respondent for the sum of $602.45.

Orr, Judge. Action by Julia B. Foster, executrix of A. J. Foster, deceased, against David T. Jones and others. From an order sustaining a demurrer and a judgment dismissing the cause, plaintiff appeals. On motion to dismiss appeal.

<p>Former opinion and judgment as reported in 32 Nev. 278, affirmed.</p> <p>Norcross, J., dissenting.</p>

Original proceeding for mandamus by the State, on the relation of C. A. Norcross, as Commissioner of Industry, Agriculture and Irrigation, against Jacob Eggers, as State Controller. The facts sufficiently appear in the opinion.

Langan, Judge. Action by Gertrude Eleanor Tiedemann against Rudolph Ernest Tiedemann for divorce and other relief. From an order quashing the service of summons, plaintiff appeals. The facts sufficiently appear in the opinion. The order appealed from was made in a civil action, and is not expressly made final by the act (Rev. Laws, 5325), and it may be reviewed as prescribed by this act and not otherwise.

Ducker, Judge. Nimrod Urie was convicted of murder in the first degree, and he appeals from the judgment of conviction and order denying a motion for new trial. The facts sufficiently appear in the opinion. It is the duty of the prosecution to show that the confession was voluntary. There is absolutely no proof that the confession was voluntary. All the evidence of Sheriff Lamb was conclusions and not facts, and should have been ruled out at the time.

Ducker, Judge. Franklin Williams, indicted under the name of F. M. Williams, was convicted of permitting unlawful gambling in his place of business, and he appeals. The facts sufficiently appear .in the opinion. The court should have set aside the indictment, as grand juror R. Battels was disqualified, as shown by his own testimony.

Action by the McStay Supply Company against John S. Cook & Co. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion. The plaintiff has mistaken its remedy, and under the facts found by the court should have brought a suit in equity instead of an action at law.

Original proceedings in quo warranto by the State, on the relation of George Springmeyer, against Cleveland H. Baker, and by the State, on the relation of J. W. Legate, against Joe Josephs, to contest elections to the offices of Attorney-General and Clerk of the Supreme Court, respectively. The facts sufficiently appear in the opinion. On Demurrer: These proceedings have • been so instituted as to give the court jurisdiction.

Petition for rehearing. [For former opinion, see 34 Nev. 351.] The facts sufficiently appear in the opinion. The judgment appealed from was not final, but merely interlocutory. Consequently it is nonappealable and for the same reason the trial court was without jurisdiction to hear or entertain a motion for a new trial, except to dismiss it, or, which is the same thing, to deny it as premature.

Action by the Round Mountain Mining Company and others against the Round Mountain. Sphinx Mining Company and others. Judgment for defendants, and plaintiffs appeal. The facts sufficiently appear in the opinion. A certificate of location, or notice of location, in and of itself, is no evidence whatever of the fact of discovery.

<p>1. Appeal and Error — -Discretionary Ruling — Granting New Teial.</p> <p>Orders of tlie trial court granting new trial for insufficiency of conflicting evidence will not be disturbed, in tbe absence of a clear abuse of discretion.</p>

<p>1. Statutes — Titles—Subject-Matter.</p> <p>Stats. 1911, c. 133, entitled “An act concerning public schools,” section 135 of which provided for a tax for the support of the public schools, was not void for embracing a subject not included in the title, contrary to Const, art. 4, sec. 17; Rev. Laws, 275.</p> <p>2. Statutes — Construction—In Pari Materia.</p> <p>Statutes which relate to the same subject-matter are in pari materia and should be construed together.</p> <p>3. Statutes — Conflict—Repeal.</p> <p>If two statutes are irreconcilably conflicting, the last enacted controls.</p> <p>4. Schools and School Districts — Taxation—Statutes-—Implied Repeal.</p> <p>The act of March 18, 1911 (Stats. 1911, c. 90, sec. 1), Rev. Laws, 3617, imposing a tax of 6 cents on the $100 for the general school fund, was impliedly repealed by the act of March 20, 1911 (Stats. 1911, c. 133, sec. 135), Rev. Laws, 3374, imposing a tax of 10 cents on the $100 for school purposes; the statutes being irreconcilably in conflict.</p> <p>5. Taxation — Uniformity.</p> <p>Stats. 1911, c. 133, sec. 135, Rev. Laws, 3374, imposing a tax on all taxable property in the state for school purposes, and requiring the county commissioners to add such amount to the other taxes, could take effect during the fiscal year 1911, without violating the constitutional requirement of equality and uniformity, though it resulted in two different levies during the same fiscal year..</p>

<p>1. Frauds, Statute oe — Oral Agreement to Develop Mining Claim.</p> <p>An oral agreement to bear one-third of the expenses of developing a mining claim covered by a two-year lease in consideration of an assignment of a one-third interest is not void under the statute of frauds, where the parties contemplate that the development work shall be completed within a year.</p> <p>2. Frauds, Statute oe —• Oral Agreement to Develop Mining Claim.</p> <p>An oral agreement to bear one-third of the expenses of developing a mining claim covered by a two-year lease was not void under the statute of frauds, where the lease could have been terminated by the act of the parties within one year according to its specific provisions.</p> <p>3. Mines and Minerals — Leases—Right to Abandon.</p> <p>Under the common form of lease of undeveloped lode mining property, wherein the lessor seeks to have his property developed at lessee’s expense, and the latter assumes such burden, the lessee, after discovering that future expenditures would be useless, may abandon the lease.</p> <p>4. Mines and Minerals — Contracts — Consideration — Assignment oe Interest in Mine.</p> <p>An assignment of a one-third interest in a mining lease was a sufficient consideration for an agreement to bear one-third of the expenses of developing the mine, though the lease proved of no value.</p> <p>5. Appeal and Error — Findings.</p> <p>Court’s finding of facts on conflicting evidence is conclusive on appeal.</p> <p>6. Frauds, Statute oe — Liability eor Expenses oe Development— Quantum Meruit.</p> <p>Where a one-third interest in a mining lease is assigned in consideration of an oral agreement to bear one-third of the expense of development, and the other contracting party pursuant to the agreement thereafter does development work and advances money to pay such expense, the assignee is liable on quantum meruit for his share of the work and expense, though their agreement be void under the statute of frauds.</p>

Somers, Judge. Action by H. E. Clark and E. L. Stingley against M. Mitchell and others. Judgment for defendants and plaintiffs appeal. The facts sufficiently appear in the opinion.

Averill, Judge, presiding. Action by the State against the University Club, a corporation. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

Averill, Judge. Andriza Mircovich was convicted of murder in the first degree, and appeals. The facts sufficiently appear in the opinion.

<p>Original proceeding in prohibition by J. E. McKinnon, Superintendent of State Orphans’ Home, John E. Bray, William McMillan, and C. L. Deady, as the Board of Orphans’ Home Commissioners, directed to the Second Judicial District Court of the State of Nevada in and for Washoe County, and Hon. Cole L. Harwood, Judge thereof, to prohibit the latter from further proceedings in contempt.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>1. Constitutional Law — Interstate Commerce — State Regulations — -“Itinerant Merchant.”</p> <p>Rev'. Laws, 3890-3894, ■ inclusive (Act approved- March 24, 1905, sec. 1; Stats. 1905, c. 153),-makes it unlawful for any itinerant merchant or peddler to offer goods for sale without first obtaining a license. Section 2 defines an itinerant merchant, etc., as one having-no permanent place of business within the state, which- is not regularly located and taxed. Section 3 fixes the amount of the license required. Section, 4 provides that the act shall not apply to drummers representing wholesale houses; and section 5 provides that it shall not apply to the sale of farm products- Keld, that the act violated art. 1, sec. 8, of the constitution of the. United States, relating to interstate commerce.</p> <p>2. Constitutional Law — Licenses—Equal Protection oe Law.</p> <p>The act violates the fourteenth amendment and article 4 of section 2 of the constitution of the United States, relating to equal protection of the laws.</p>