Volume 39 — Nevada Reports

<p>1. Witnesses — -Cross-Examination—Scope.</p> <p>In a personal injury action, wherein one element of plaintiff’s damages was inability to work, exclusion of evidence as to the name of a person from whom he borrowed a certain sum of money was erroneous.</p> <p>2. Evidence — Similar Pacts — Injuries to Sebvant — -State Mining Inspection Rules.</p> <p>■ In a miner’s action for injuries, rules posted at the mine, several months after the injury, by the state mining inspector, were not admissible in evidence by the mere fact that they were similar to the ones posted by defendant before the time of the injury.</p> <p>3. Trial — -Instructions—Misleading Instructions.</p> <p>The giving of an instruction, although embodying a correct rule of law, is reversible error, where it has a tendency to mislead the jury.</p> <p>4. Master and Servant — Place oe Work — Assumption of Risk.</p> <p>Where a servant is employed in performing labor which necessarily changes the character of the place for safet5r as the work progresses, and is consequently likely to become dangerous at any time, he assumes the risk.</p> <p>5. Mastek and Servant — Injuries to Servant — Actions-—Questions eor Jury.</p> <p>In a miner's action for injuries from a falling rock, evidence held to make tlie question as to whether he himself loosened it one for the jury.</p> <p>6. Trial — Instructions—Bequests—Necessity.</p> <p>If a defendant in a personal injury action desires an instruction on the question of contributory negligence, he must request it.</p> <p>7. Trial- — -Instructions—Theories oe Case.</p> <p>Where the parties on trial each proceeded on a different theory of the case, the court must give instructions applicable to both theories upon request.</p> <p>S. Trial — Instructions—Evidence to Support.</p> <p>In a miner’s action for injuries by a falling rock, an instruction upon the fellow-servant doctrine is erroneous, where there is no evidence to support it.</p> <p>9. Trial — Instructions—-Theories oe Case.</p> <p>An instruction which takes from the consideration of the jury defendant’s theory of the case is erroneous.</p> <p>10. Evidence — Weight—Credibility oe Witness.</p> <p>If the jury believe from the evidence that a witness has wilfully sworn falsely as to material matters, they are at liberty to disregard his entire testimony, except as corroborated by other credible evidence.</p> <p>31. Trial — Instructions—Necessity oe Bequests.</p> <p>Since the defense of contributory negligence may be abandoned at any time during the trial, it is not obligatory upon the court to give instructions thereon, in absence of request.</p> <p>12. Trial — Instructions—Misleading Instructions.</p> <p>A requested instruction, which is misleading, is properly refused.</p> <p>33. Costs — Attendance oe Witnesses — Mileage.</p> <p>Under Bev. Laws, sec. 5431, providing that no person shall be required to attend as a witness out of the county in which he resides, unless the distance be less than 30 miles from his residence, the mileage of witnesses residing in another county more than 30 miles from the place of trial cannot be taxed as costs.</p> <p>14. Costs — Witness Fees — Authority to Tax.</p> <p>Witness fees may only be taxed when expressly allowed by legislative enactment.</p> <p>15. Costs — Witnesses—Per Diem.</p> <p>Although a party is not entitled to tax mileage on account of witnesses attending court out of the county, he may nevertheless recover their per diem for the days they were upon the witness stand.</p> <p>3 G. Costs — Witnesses-—Mileage.</p> <p>Where it does not appear on a motion to retax cost that witnesses from a foreign state were not served at the state line, their mileage may be recovered from such line.</p>

Langan, Judge. Action by J. H. Daly against the Lahontan Mines Company and others. Judgment for defendants, and plaintiff appeals. The complaint is in the nature of a bill in equity, the sufficiency of which is attacked by general demurrer. If any matter set forth is proper for equitable relief, the demurrer should have been overruled. (16 Cyc. 272.) Equity will always entertain jurisdiction of actions to quiet title, because of the fuller remedy afforded.

Application of Frederick Overfield for writ of habeas corpus to secure his release from the custody of the sheriff of Washoe County and from that of an agent of the State of Utah. The governor of one state has no authority to issue a warrant directing the deportation of a person except upon presentation of a state of facts constituting an offense under the laws of the demanding state.

Averill, Judge. William Pappas was convicted of assault with intent to kill. From the judgment and an order denying new trial, he appeals. Testimony as to statements not a part of the res gestee is generally regarded as hearsay, and is carefully excluded except in rare cases.

C. Stoddard, Judge. Action, by A. P. Laffranchini against Emily Clark, as guardian of Mary Berryman James, and another. Judgment for defendants, and plaintiff appeals. The guardian had the right, for the best interest of the ward, ” to mortgage the property.

Original proceeding by W. L. Counts for writ of habeas corpus. The right to declare an automobile, whether for pleasure or hire, a “jitney bus,” is not specifically granted by the state law or the city charter. A city can exercise only such powers as are expressly granted, and such others as may be necessary to carry into execution the powers expressly granted. (Collins v. Hatch, 18 Ohio, 523, 51 Am.

Langan, Judge. Action by Ada Rita Rosenthal against Hubert Semmy Rosenthal. From a final judgment, and an order refusing a continuance, defendant appeals. Appeal from order dismissed. The lower court abused its discretion in refusing the continuance and in rendering judgment.

Moran, Judge. Action by Walter Ward against the Pittsburg Silver Peak Gold Mining Company. Judgment for plaintiff, and from the denial of its motion for a new trial, defendant appeals.

<p>1. Appeal and Eeeoe — “Moot Case” — Dismissal.</p> <p>Where, pending appeal from judgment sustaining demurrer to the complaint in an action to enjoin a nuisance, defendant built its plant and operated it for three years, without any perceptible harm to plaintiff’s lands, the appeal would be dismissed as embodying a “moot case,” one seeking to determine an abstract question which does not rest upon existing facts or rights, since the cause of action of plaintiff’s complaint, if any was alleged, was based upon a threatened injury to its lands from proposed action which did not in fact follow such action.</p>

Moran, Judge. Frank Blaha was convicted of burglary of the first degree, and appeals. If objection be made, the voluntary character of an alleged confession must be determined by the court before the confession can properly go to the jury. It is error for the court to refuse to first rule as to whether the confession was or was not voluntary. (Am. & Eng. Ency.

Moran, Judge. Suit by William H. Earl and others against William H. Morrison and others. Judgment for plaintiffs, and defendants appeal. The complaint does not state a cause of action. It was impossible to ascertain with any certainty the particular portion of land in controversy. By pleading a specific claim to the property the allegations of ownership, right of possession, and possession, are referable to the title pleaded and are nullities standing alone.

Moran, Judge. Action by J. E. Gaston against Mary Avansino, as Administratrix of Estate of Louis Avansino, Deceased, and others. From the judgment and order denying a motion for a new trial, defendants appeal. The court erred in its finding of fact that defendant did not post lien notices as required by section 2221, Revised Laws. The testimony of plaintiff on this point was merely negative.

<p>1. Convicts — Crimes—Power to Punish.</p> <p>Where accused was serving a life sentence in the state prison for murder, the district court had jurisdiction to order his production before it for trial on another murder charge.</p> <p>2. Homicide — Corpus Delicti- — Pkooe.</p> <p>The corpus delicti of a murder may be established by inference from facts as well as from positive testimony.</p> <p>3. Homicide — Sueeiciency oe Evidence.</p> <p>In a trial for murder, evidence held sufficient to establish the corpus delicti.</p> <p>4. Criminal Law — Witnesses—Refresi-iins Memory — Harmless Error.</p> <p>"Where, on a murder trial, a witness was allowed to refresh his memory as to a statement made by accused, by reading his testimony at the coroner’s inquest, and his testimony given after such refreshing was substantially the same as before, there was no reversible error, since accused was not prejudiced thereby.</p> <p>5. Criminal Law — Joint Principal as Witness — Improper Question — Misconduct.</p> <p>Where, on a murder trial, a principal with accused in the murder, who had been previously convicted and sentenced to death, was produced as a witness by the state, and during the early part of his examination counsel for accused had asked the state in the jury’s presence whether it was admitted that witness was then under conviction of a felony and in the state’s prison, it was misconduct for the state’s counsel to ask the witness whether he was not then in the penitentiary under sentence of death, where the only object of the state’s question was to influence the jury to assess the death penalty against accused.</p> <p>(>. Criminal Law — Joint Principal — Conviction—Death Penalty —Testimony.</p> <p>On a trial for murder, where a joint principal in the crime with accused who had been previously convicted and sentenced to death is called as a witness by the state, it is reversible error to allow the state, for the purpose of influencing the jury to inflict the death penalty on accused, to ask the witness if he is in the state’s prison under sentence of death.</p> <p>7. Ckiminal Law — Competency—Convicts—Joint Principal.</p> <p>One who was jointly indicted with accused for murder and on previous separate trial had been convicted was a competent witness for the state in a murder trial under Rev. Laws, 5419, defining witnesses, and Rev. Laws, 7451, applying section 5419 to criminal actions.</p> <p>S. Criminal Law — Examination oe Witness — Remark oe Trial Court — Harmless Error.</p> <p>Where, on a murder trial, the testimony of a witness went solely to the identity of accused, and his participation in the crime had been clearly shown, the remark of the trial judge, made while counsel for defense was reading questions and answers of the witness at a former trial for the purpose of impeaching him, that “* * * there is apparently no inconsistencies or contradictions,” there being no substantial conflict between the two testimonies, was harmless error under the statute providing for the disregard of technical errors, where no substantial rights are denied.</p> <p>9. Witnesses — Redirect Examination — Convicted Joint Principal — Oeeers oe Clemency.</p> <p>On a murder trial, where, on cross-examination of a witness who had been previously convicted as joint principal in the crime on a separate trial, the defense asked him whether he had talked with the county officers including the district attorney, it was a proper exercise of the court’s discretion to allow the state on redirect examination to ask the witness whether he had not been informed that no clemency would be extended to him for testifying in the case, since the inference that offers of clemency had been made might have arisen from such previous question by the defense.</p>

C. A. Whitaker was convicted of burglary in the first degree, and from the judgment and an order denying his motion for a new trial, he appeals. There is no evidence connecting the defendant with the commission of the crime, or that would justify the jury in returning a verdict of burglary in the first degree. The evidence, in the most favorable light for the state, could sustain a verdict of burglary in the second degree only.

Somers, Judge. Action by the Southern Pacific Company against C. N. Miller and others. From a judgment for defendants, plaintiff appeals. The judgment is contrary to the facts as found by the trial court. (Rev. Laws, 5342.) The contract is not a mortgage and cannot be subject to the provisions of section 5501, Revised Laws. (Hyman v. Kelly, 1 Nev. 179; Glock v. Howard, 123 Cal. 1.) Appellant, though a creditor, is not a mortgagee. It holds the title.

Somers, Judge. Action by the Southern Pacific Company against Mrs. C. Butterfield, C. N. Miller, and George F. Thompson. From a judgment for defendants, plaintiff appeals. The judgment is contrary to the facts as found by the trial court; the court reached an erroneous conclusion as to what judgment should follow the state of facts found.

<p>Original application by W. W. Booth for a writ of habeas corpus.</p> <p>The district court and the judge thereof had no jurisdiction to pronounce any sentence upon the verdict of the jury. Petitioner was put upon trial for an alleged violation of section 6428, Revised Laws, defining libel as a separate and distinct offense, and providing a punishment therefor; but the verdict of the jury found the petitioner guilty of a gross misdemeanor, which was not in response to the issues joined by the information and petitioner’s plea, but was a verdict of guilty upon an entirely separate and distinct offense, for which he was not informed against. (.People v. Cummings, 49 Pac. 576; People v. Lee, 237 Ill. 272; Miles v. State, 3 Tex. App. 53; Howell v. State, 10 Tex. App. 303; Senterfit v. State, 41 Tex. App. 187; People v. Ah Gow, 53 Cal. 672.)</p> <p>The verdict is uncertain, in that it cannot be ascertained therefrom whether the jury intended to find the defendant guilty as charged in the information, or whether it was intended to find him guilty of some other offense, and is therefore null and void and of no legal effect.</p> <p>The verdict of the jury was sufficient to give the court jurisdiction to pronounce the sentence. Courts disregard mere defects or irregularities such as alleged by the petitioner in the present case. (State v. Collyer, 17 Nev. 275; People v. McFadden, 65 Cal. 445; State v. Gray, 19 Nev. 212; People v. Brady, 65 Pac. 823; Mountain v. State, 40 Ala. 346; Conrandv. State, 65 Ark. 563; Steinbergerv. State, 35 Tex. Crim. 493; Davis v. State, 65 Tex. Crim. 429; State v. Schweitzer, 111 Pac. 130; State v. Pierce, 123 N. C. 745.)</p> <p>An erroneous sentence or an erroneous judgment is not ground for release upon habeas corpus. This court will not upon habeas corpus review errors of law or mere irregularities which may have taken place upon the trial of a case. The writ of habeas corpus cannot be used to serve the purpose of an appeal or writ of error. (Ex Parte Winston, 9 Nev. 71; Ex Parte Edgington, 10 Nev. 215; Ex Parte Crawford, 24 Nev. 91; Ex Parte Tani, 29 Nev. 385; Ex Parte Gafford, 25 Nev. 101; Ex Parte Twohig and Fitzgerald, 13 Nev. 302.)</p>

Orr and R. C. Stoddard, Judges. In the Matter of the Estate of Otto Hartung, Deceased. From a decree of distribution of the estate and from an order overruling a motion to modify such decree, the Grand Lodge of the Independent Order of Odd Fellows of the State of Nevada appeals.

Original proceeding. Application for writ of habeas corpus by Edson La Vere, held in custody for extradition. If petitioner supported his wife and child until the day he left the State of New Jersey, he cannot be guilty of the offense upon which the requisition for his extradition is based, and is not therefore a fugitive from justice. {In Re Kuhns, 36 Nev. 487.) Petitioner should be remanded to the custody of the sheriff for extradition to the demanding state.

Original proceeding in certiorari, on the relation of James Regan, against W. T. King, Justice of the Peace in and for Carson Township. An answer is such whether filed in the district or the justice court; and unless there be something absolutely inconsistent with its application to the practice and proceedings in the latter court, it must necessarily apply there. A writ of certiorari lies to correct any legal mistake.

E~. Hart, Judge. Action by Anna Brown Killgrove, guardian, against Charles Morriss and wife. From a judgment for defendants upon demurrer to the complaint, plaintiff appeals. The demurrer to the complaint should have been overruled. The district court had jurisdiction to hear and determine the matters set forth in the complaint. (Const. Nev. sec. 6, art. 6; Deeganv.

Moran, Judge. Action by A. A. Hibbard against E. G. Clark, administrator, to establish a rejected claim against the estate of A. J. Clark, deceased. From an order overruling his demurrer to the complaint and judgment by default for failure to answer over, defendant appeals. In claims against estates the statements must be clear and unambiguous, so that the claims may be distinguished with reasonable certainty from all other similar claims.

<p>1. Husband and Wife — Community Estate — Right to Control.</p> <p>As a general proposition, by reason of the husband’s sole right to control the community property, he may alienate during the coverture, without the consent of the wife, any property belonging to the community.</p> <p>2. Homestead — Interest of Wife — Protection.</p> <p>Const, art. 4, sec. 30, declares that a homestead shall be exempt from forced sale and shall not be alienated without the joint consent of the husband and wife. Stats. 1865, c. 72, sec. 1, passed pursuant to the constitution, provides that a. homestead selected by the husband and wife shall be exempt from forced sale, and that the selection shall' be made by the recordation of a declaration of intent. Const, art. 4, sec. 31, declares that all property of the wife owned before marriage shall be her separate property. The act of 1873, passed pursuant to the constitution provides in section 1 (Rev. Laws, 2155) that all property of the wife owned before marriage and acquired thereafter by gift, bequest, devise, or descent is her separate property, and that property similarly acquired by the husband should be his separate property, while section 2 (section 2156) declares that all other property acquired during the marriage shall be the community property. Section 6, as amended in 1897 (section 2160), declares that the husband has entire control over the community property, with absolute power of disposition, but that no deed of conveyance or mortgage of a homestead, regardless of whether a declaration has been filed or not, shall be valid for any purpose, unless both the husband and wife execute and acknowledge it. Held, that though the homestead was not registered as required by law, the husband’s sole conveyance or incumbrance of it cannot pass title.</p>

J. L. Taber, Judge. Action by H. H. Porch against J. C. Patterson and others. From a judgment for the defendants, plaintiff appeals. The signature of respondent to the mortgage was not necessary, under the constitution, as no written declaration of a homestead was ever filed by her.

Harwood, Judge. Action by Charles J. Gault for an injunction against James Grose. Judgment for plaintiff, motion for new trial denied, and defendant appeals. Appellant proved conclusively the existence of an irrevocable license.

C. Hart, Judge. Suit by Alfred Chartz and others against Carson City and others, to- restrain the issuance of notes or other evidence of indebtedness of Carson City. Judgment for the defendants, and the plaintiffs appeal. The act of the legislature, impliedly creating the board of revenue, has been repealed.

N. Salisbury, Judge. Fred Wilson was convicted of manslaughter, and he appeals. The evidence is insufficient to support the verdict, and the court erred in overruling defendant’s motion for a new trial. There was no eye-witness to the tragedy. Defendant admitted the shooting and justified the act upon the ground of self-defense. There is nothing in the evidence disclosing any motive for the alleged crime.

Ducker, Judge. Action by Sarah Belle Skaggs, administratrix of the estate of Thomas Bryant, deceased, against W. E. Bridgman and another. From judgment for defendants, plaintiff appeals, and defendants move to dismiss the appeal.

<p>1. MORTGAGES-FORECLOSURE-APPEAL-NECESSARY PARTIES.</p> <p>In suit to foreclose a mortgage, a subsequent purcbaser whose right was defeated by execution sale, and the execution purchaser and his grantee, who had deeded the land to one defendant, were not necessary parties to an appeal, which would not be dismissed on that ground.</p> <p>2. Appeal and Error — Scope oe Review — Matters Not at Issue.</p> <p>The court on appeal will assume a ruling of the trial court not questioned by counsel for the adverse party to have been correct.</p> <p>3. Mortgages — Validity — -Capacity oe Parties — Who May Attack — Degree oe Prooe.</p> <p>Assuming that a subsequent purchaser of the mortgagor may assert the mortgagor’s incapacity owing to intoxication at the time of drawing the mortgage, the degree of proof required to show such incapacity on his part is at least equal to that required from one asserting his own incapacity.</p> <p>4. Mortgages — Execution—Capacity oe Parties — Intoxication-Evidence.</p> <p>The mere fact that signatures to a note and mortgage were poorly made is insufficient to show that the maker ,was intoxicated.</p> <p>5. Acknowledgment — Evidence—Notary’s Certificate.</p> <p>In the absence of direct evidence on the question of mental capacity of the mortgagor owing to intoxication at the time of drawing the mortgage, the fact that the certificate of a notary public showed that the mortgage was acknowledged before him and that he executed it is prima facie evidence of due execution.</p> <p>6. Mortgages — Execution—Capacity of Parties — Evidence.</p> <p>Evidence held insufficient to show that a mortgagor was mentally incapacitated by intoxication at the time of drawing a mortgage.</p>

Moran, Judge. Replevin by Bank of Italy against C. P. Burns and A. A. Burke, Sheriff of Washoe County. Judgment for the defendants, and plaintiff appeals. The court erred in admitting testimony offered by the defendants and objected to by plaintiff. There is no evidence whatever to sustain the judgment, but a complete showing that the property belonged to appellant.

Original proceeding. Certiorari by P. D. McLeod, relator, against the District Court of the Fifth Judicial District in and for the County of Nye, and Mark R. Averill, Judge thereof. [Petition for rehearin g pen din g. ] The lower court' was without jurisdiction to consider and rule upon defendant’s so-called objection to the cost bill and motion to retax costs, no ground therefor having been specified nor good cause shown for the exercise of any discretionary power of the…

Original proceeding. In the matter of the application of John Murray for a writ of habeas corpus. Neither the justice court nor the district court had jurisdiction over the defendant, the judgment of conviction against him is void, and he should be released under this proceeding from his illegal restraint.

<p>Original proceeding. Application by Stanley Molino for a writ of habeas corpus.</p> <p>The writ should be granted and perpetuated and the petitioner discharged. There is no testimony or other evidence in the record to establish any probability that petitioner committed the crime alleged, or any crime, or that a crime was committed. The cross-examination of the only witness tending to connect petitioner with the alleged crime shows that her statements were merely surmises. The object of cross-examination is to weaken or disprove the case of one’s adversary. (40 Cyc. 2477; Ferguson v. Rutherford, 7 Nev. 386; Jackson v. Feather River W. Co., 14 Cal. 18.)</p> <p>The evidence offered by a witness should be taken as a whole. If his examination in chief tends to establish a fact, and his answers on cross-examination absolutely disprove and deny the possible truth or probability of his original statements of fact, his testimony should be treated as a nullity. (12 Cyc. 983.)</p> <p>In order to establish reasonable or probable cause in this case, it is necessary to base an inference or conclusion upon another inference or conclusion, or upon a series, of them. This is contrary to established rule. (Chicago R. R. Co. v. Rhoades, 63 Pac. 59.)</p> <p>The evidence offered by the defendant in a preliminary hearing is to be given some weight, even though scrutinized according to the rules of evidence. (Ryan v. Territory, 100 Pac. 770.)</p> <p>All the essential elements of the crime must be proven. (Underhill on Criminal Evidence, 354; State v. Esch-bach, 34 Pac. 179; State v. Napper, 6 Nev. 113.)</p> <p>A jurisdictional question is not raised by the petition. The statute enumerates the grounds upon which discharge may be had upon habeas corpus. (Rev. Laws, 6245.) If the lower court had jurisdiction, you cannot go behind its judgment.</p> <p>The writ of habeas corpus is not intended for the correction of errors or mere irregularities, and cannot be substituted for an appeal or writ of error. (Ex Parte Talley, 112 Pac. 36.)</p>

Moran, Judge. Suit by J. P. Raine against Sarah P. Ennor and others. From a judgment dismissing the suit for want of prosecution, plaintiff appeals. The order dismissing the action should be set aside and the cause reinstated upon the calendar of the lower court. The court erred in dismissing the complaint for laches, for the reason that no motion to dismiss was ever made.

Averill, Judge. Action by the Jim Butler Tonopah Mining Company against the West End Consolidated Mining Company.

Original proceeding. Application for a writ of prohibition by Dewitt C. Turner against W. A. Fogg, County Clerk of Washoe County, and another, to contest the constitutionality of Stats. 1915, c. 283.

Langan, Judge. Action by Alphons Glock against Fritz Elges. Judgment for plaintiff, and he appeals from that portion denying him costs, and from those parts of an order which directed entry of judgment upon the verdict without costs and struck out his cost bill. The j udgment should be reversed, with directions that the trial court enter judgment for appellant for treble damages, and for costs for appellant as taxed in the cost bill. The appeal was taken in due time.

Original proceeding. Application for certiorari .by Thomas Yowell against the District Court of the Fourth Judicial District, in and for the County of Elko, and E. J. L. Taber, Judge of said District Court, to review an order denying petitioner’s motion to dismiss an appeal from a justice court. This court should order the appeal dismissed, with the petitioner’s costs herein incurred.

R. Wells and James Steele were charged with robbery. From a judgment and order denying their motion to withdraw pleas, they appeal.

Harwood, Judge. Suit by Luigi Picetti and others against D. C. Wheeler, Incorporated. From a judgment for defendant, plaintiffs appeal. The trial court erred in each and every particular set forth in the memorandum of errors. Judgment should have been in favor of plaintiffs as to the waters of the spring in question, and the judgment should be reversed and a new trial granted.

<p>1. Cbiminal Law — Preliminary Examination — Stxkbtciency oe Evidence.</p> <p>Testimony on a preliminary bearing for larceny from tbe person, held, in habeas corpus proceedings, not to make reasonable or probable that tbe crime was committed by accused so as to constitute tbe sufficient cause necessary under Rev. Laws, 6987, for bolding them to answer.</p>

C. Stoddard, Judge. In the matter of the estate of Jennie Lewis, deceased. Objections were filed to the amended petition for distribution, and from a final decree of distribution Delle B. Boyd, administratrix with the will annexed, appeals. Statement of Facts On the 24th day of June, 1914, Jennie Lewis, a widow, died, leaving an estate consisting of both real and personal property within the county of Washoe, State of Nevada.

Averill, Judge. Action by the Board of Commissioners of Nye County, acting for the use and benefit of the inhabitants of the town of Tonopah, against Henry Schmidt and another, copartners doing business under the firm name and style of The Tonopah Hardware Company. From a judgment and order for defendants, plaintiff appeals. [Petition for rehearing pending.] Statutes are to be construed, if possible, so as to give effect to every word, clause, and sentence.

N. French, Judge. Action' by Peter Stámpe Jensen' and others against Martin Pradere. Judgment for plaintiffs, and defendant appeals. McCarran, J., dissenting. The judgment cannot be sustained, and should be reversed. The court had no authority to render a judgment in personam against appellant for an attorney’s fee. The judgment for damage is based upon a contract and not for a tort; consequently it is outside the issue and not supported by the pleadings.