Volume 4 — Nevada Reports

<p>Sufficiency of Complaint. Where a complaint for work, labor and services alleged an indebtedness in a sum certain therefor, but omitted to allege specifically the value of the same or a promise to pay; and defendant, without demurring, put in an answer denying indebtedness, admitting services performed, and setting up payment in full, and there was verdict for plaintiff: Held, that whatever the defects of the complaint, they were cured by defendant’s pleading and by the verdict.</p> <p>Waiver of Formal Objections. All mere formal objections to a complaint are waived by a plea of confession and avoidance.</p> <p>Cured by Verdict. If the issue joined be such as necessarily to require on the trial proof of a fact defectively or imperfectly stated, without which it is not to be presumed the judge would direct the jury to give, or the jury would have given the verdict, such defect or imperfection is cured by the verdict.</p> <p>Construction of Pleadings. Sections 70 and 71 of the Practice Act have liberalized the rules of construction applicable to pleadings so as not only to embrace the whole of the English statutes of jeofails and amendments, but to go somewhat beyond.</p>

The opinion of the Court sets forth all the allegations of the pleadings, and the proceedings necessary for a full understanding of the points decided. The contract set forth was clearly within the power of. the council to make, and has been executed by the plaintiff.

The suit was originally commenced by Samuel Singleton against-George W. Brubaker and wife.

. Appeal from the District Court of the Second Judicial District, Ormsby County. The complaint was for damages sustained by the partial destruction of a dam across Carson River, for an injunction to restrain defendant from continuing such destruction, and removing the materials, and for general relief. A restraining order having been granted, a motion was made to set it aside, which, after argument, was overruled.

The facts are fully stated in the opinion; but for the better understanding of some of the points decided, certain portions of the charge of the Court below to the jury, which were excepted to by the appellant, are giyen as follows: “ The authority delegated by one partner to another is to act in their particular trade or line of business for the benefit of the firm ; and in such transactions strangers have a right to act on the credit of the partnership fund.

Ejectment for a tract of about one hundred and sixty acres of land on Musquito Creek. The complaint was in the usual form.

The trial of the defendant in the Court below, for the alleged murder of David D. Caldwell, on September 22,1867, at Glendale, in Washoe County, was conducted by William Webster, District Attorney, and Boardman and Kennedy for the prosecution, and by J. S. Pitzer and Wallace and Elack for the defense. The certificate of the Clerk, referred to in the opinion, was filed subsequently to the transcript, and was as follows: State of Nevada, Washoe County.

The defendants, the “ New England and Nevada Silver Mining Company,” “ Boston and Reese River Silver Mining Company,” and “ Silver Ledge Mining Company,” were corporations organized in New York, and were engaged in erecting a quartz mill at Newark, in Lander County. Trefren was their managing agent, but was absent much of the time, and had stated to the plaintiff Rankin that in his absence Griffin had charge, and when he had business to transact to go to him.

The cause was originally tried in the District Court of the First District of the Territory of Nevada, Storey County. It resulted in a verdict and judgment for defendants. A motion by plaintiffs for a new trial was overruled, and on appeal to the Supreme Court of the Territory that order was affirmed.

The land in controversy is in Ormsby County, and consists of the southeast quarter of the northwest quarter, and the southwest quarter of the northeast quarter of section number seven, in township number fifteen north, in range number twenty-one east, according to United States survey. Carson River runs through it in a general direction from southwest to northeast, leaving nearly two-thirds of the trail on the southerly side of the river.

. The trial in the Court below took place before the Hon. C. N. Harris, Judge of the Third Judicial District, who for the time being occupied the bench.

The facts are duly stated in the opinions., Mutual accounts are made up of matters of set-off. Wherever there is an express or implied understanding that mutual debts shall be a satisfaction or set-off pro tanto between the parties, the account is mutual, and a single item on either side will take the case out of the Statute of Limitations. (Angelí on Limitations, Sec. 149; 3 Met. (Mass.) 216 ; 6 Cow. 192; 20 Wend. 72; 7 Wend. 322-326.) ' -

Habeas Corpus before the Supreme Court. The petitioner, Joseph C. Stanley, had been indicted for the murder of David D. Caldwell, and held to answer that charge before the District Court of the Third Judicial District, Washoe County. He was tried at the November Term, 1867, and convicted of manslaughter. A new trial having been granted by the Court below, the State appealed to this Court, and the order granting a new trial was affirmed.

This was an application on behalf of Aaron D. Treadway for a writ of peremptory mandamus against Hon. Samuel II. Wright, Judge of the District Court of the Second Judicial District, Orms-by County, to compel him “ to set for trial, hear and determine the cause of C. J. Hoteling v. A. D. Treadway,” mentioned in the opinion.

. Appeal from the District Court of the Second Judicial District, Ormsby County. The facts are stated in the opinion of the Court. t * L Invalidity for want of a stamp must appear on the face of a promissory note, and if the stamp is correct, Courts will not inquire into the time when it was affixed or whether the penalty has been paid. (Edwards on Stamp Act, 256 ; 1 Chitty on Bills, 139 ; 1 Stephens’ Nisi Prius, p 797 ; Rex v. Buton, 17 Com.

This was a suit for an injunction. The complaint, which set out facts and allegations substantially as stated in the opinions, was presented to the 'Eton. W. PI. Beatty, Judge of the Court below, who, on ex parte motion of attorneys for plaintiff, issued a- restraining order, and an order to show cause why an injunction should not be granted as prayed for.

District, Storey County. The facts are stated in the opinion. The terms of admission therein referred to were “ that J. E. O’Earrell, mentioned in said deed, was the tax receiver mentioned in the same, as described therein, and that he officially executed the deed as is set forth therein.”

The plaintiff filed his notice of lien on June 22d, 1867, for a balance of $605.34 for' mining labor performed as a principal contractor.

This was an action against Patrick H. Lannan, Constable of Township Two in Storey County, and John Spring and John J. Hayes, the sureties on his official bond, to recover damages for the alleged unlawful seizure and conversion of certain goods.

At the1 August term, 1867, of the District Court at which the indictment below referred to was found, the following order was entered on… Held: willfully, unlawfully, maliciously, feloniously, and without provocation, one Abner S. Murphy, then and there being, did assault, strike and stab, with the intent to'willfully, unlawfully, maliciously, feloniously, and without provocation, to inflict upon the person of him, the said Abner S. Murphy, a bodily injury, contrary,” etc.…

<p>Section 6S op Practice Act. The punctuation after the words “ excusable neglect,” in the latter part of Section 68 of the Practice Act, as printed, is absurd ; there should be a full stop after those words.</p> <p>Opening Default. Courts should he liberal in setting aside defaults, when it appears that the party defaulted has a good defense, and has been guilty only of carelessness and inattention, without willful or fraudulent delay.</p> <p>Appeal prom Order Opening Default. The Supreme Court will not reverse an order setting aside a default, except in an extreme ease.</p> <p>Affidavit of Merits, An affidavit of merits, which merely states that defendant has a good, legal and meritorious defense, is certainly very positive, but not very satisfactory.</p> <p>Wiiat -Affidavit of Merits siiould' State. An affidavit of merits which shows ■ that affiant has fully and fairly stated the facts of the case to his couusel, and that such counsel has advised him that he has a good, legal and meritorious defense, will ordinarily be sufficient, without setting forth the facts constituting the defense.</p> <p>Affidavit of Merits by Attorney. An affidavit of merits by the attorney in a cause, stating that in his opinion his client has a meritorious defense, will órdi-nariiy be sufficient, if it appear that the attorney is familiar with the facts of the case.</p> <p>Practice as to Opening Defaults. As a general rule a defaulted party, who has a good defense', should, when prompt application is made and all orders of the Court for indemnity to the opposite side complied with, be allowed to set it up notwithstanding any negligence on the part of himself or counsel. But when the negligence has been so extreme as to cause suspicion of willful delay, the Court should require a full showing of the facts upon which the defense rests, and impose such proper terms as to costs, speedy trial, taking depositions and security for judgment, as may, as fin- as possible, indemnify the plaintiff against the delay.</p>

This was a suit against A. M. Kruttschnitt, County Assessor of Storey County, and Mathew Rapp, John Rapp, Leonard Loiterer and Jonas Pinschower, the sureties on his official bond, for alleged neglect of the Assessor in his official duty, with intent to defraud the State out of a portion of its revenues.

This action against Charles H. Fish, County Auditor of Storey County, and John Piper, William Welch, C. G. Funk, R. N. Graves and W. W. Stovall, ■ the sureties on his official bond, was similar mutatis mutandis to the preceding case of The State of Nevada v. Kruttsehnitt.

The motion to change the place of trial in this action was made by the defendant in June, 1866, and based upon two. affidavits, dated June 23d of that year. The first wTas that of Patrick Henry, the superintendent of the corporation defendant, in which he deposes, that “ he is informed and believes, that the Efon.

This was an action brought against James M. Thompson, Elizabeth J. Thompson, his wife, and James W. Braden, to have a certain deed executed by plaintiff to defendant Braden on June 30th, 1868, of a tract of land in Washoe County, declared a mortgage, to have the amount of the alléged mortgage debt ascertained, and upon payment of such debt, to compel the defendants to reconvey the property to plaintiff.

This was an application to the Supreme Court for a writ of mandamus to be directed to the Hon. H. G. Blasdel, requiring him, as Governor of the State, to sign a patent for the sale of certain public land, being the south half and the northeast quarter of the northeast quarter of section sixteen in township fifteen north in Range nineteen east of Monte Diablo meridian.

The property upon which the tax was levied consisted of a possessory claim and improvements in Washoe County, being portion of sections four, nine and sixteen, in township eighteen north, in range twenty east, of Monte Diablo. The amount of the judgment appealed from was two hundred and fourteen dollars and seventy-seven cents, and thirty dollars and forty cents costs.

This was an application by Timothy G. Smith, Samuel B. Martin, Lewis Burwell — administrator of John P. Burwell, deceased— and Jennie V. Thompson, conflicting claimants under the Act of January 31st, 1866, (Statute of 1866, 54) to receive from the Hon. S. H. Wright, Judge of the Second Judicial District and Trustee of the town site of Carson City, a deed to a portion of block eighteen in Proctor and Green’s subdivision of Carson City.

The defendant was convicted of murder in the first degree. Af-terwards a motion for new trial was made and overruled, and defendant sentenced to be banged on July 17th, 1868.

This cause was tried before the Judge of the Third Judicial District, who for the time occupied the bench. The matters of fact found by him are stated in the opinion. As conclusions of law he found that no trust existed at any time in Johnson in favor of White as to any of the mining ground purchased by Johnson, nor any trust at any time in Sheldon after the property passed into him. The judgment was for the dismissal of the plaintiff’s bill with costs.

The action was replevin for twelve oxen, six yokes, six l It appears that the undertaking on replevin was not signed by the sureties named in it, and on April 16th, 1868, plaintiffs, who still retained possession of the property, moved to dismiss the auxiliary proceedings on that ground. On April 20th, when that motion came up for hearing, plaintiffs moyed for a continuance of the action, which, though resisted by defendant, was granted-until May 4th, 1868.

This was an action of replevin brought by Joseph Klopenstein and Andrew Klopenstein, partners, doing business in San Francisco, under the firm name of Klopenstein & Co., against the Sheriff of Storey County, to recover certain groceries, alleged to be of the value of five thousand dollars or thereabouts, sold by them to Numa Grange, of Virginia City.

The facts are stated in the opinion. after discussing the testimony very fully, argued that on the trial of the cause there appeared no settled basis or rule upon which opinions, as to the value of the services of plaintiffs, could be given.

This ivas an original proceeding in this Court for a writ of mandamus to compel E. Rhoades, Treasurer of State, to pay a warrant drawn on the State School Fund.

This was an action by the State of Nevada against the Manhattan Silver Mining Company, the possessory claim to the mine or mining claim or ledge known as the North Star Ledge, in the Reese River Mining District, in Lander County, and unknown owners thereof, to recover the sum of one thousand four hundred and eighty-one dollars and five cents, as taxes upon the proceeds of the mine for the first quarter of the year 1867.

The facts are stated in the opinion. Plaintiff failed to prove that the Assessor had completed his list and delivered it to the cleric of the Board of County Commissioners before the second Monday of September; on the contrary, it was proven that the list was delivered on the third Monday of September ; nor was any notice proved to have been published or posted of the fact that the assessment roll was in his hands, nor any notice of the time of the meeting of the Board of…

This was a suit for taxes against the First National Bank of Nevada, and its real estate and improvements in Lander County, and the possessory claim thereto, described as lot six in block twelve, in the city of Austin.

<p>Appeal from the District Court of the Sixth Judicial District, Lander County.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. No brief on file. On October 1st, 1867, Robinson’s term having determined by act of law, the reversionary interest was cast upon the grantor, Fountain Lawrence; and at that time the said Lawrence, being tenant in fee, re-entered upon his premises, assumed actual possession of the same, and thereafter exercised absolute, exclusive, undisputed, and notorious control of the entire place.

The facts are stated in the opinion; but it may be added that the original judgment was rendered while the Hon. Caleb Burbank was the Judge of the Court, and the new trial granted by his successor.

This was an action against George W. Chedic, A. A. Chedic, his wife, and Gregory A. Sears, administrator of the estate of Charles G. Chadwick, deceased, to foreclose a mortgage for five hundred dollars, borrowed money, on Certain timber and other land and improvements in Ormsby County. The mortgage was executed on April 12th, 1865, by George W. Chedic and wife and 0. G. Chadwick, deceased.

This was an action of ejectment for lot number sixteen in block number two of range D, in the town of Gold Hill, in Storey County. The suit yyas originally commenced against 0.

Action for divorce. From the findings of the Court below it appears that the parties were married on February 19th, 1866, and lived and cohabited together as husband and wife until March 6th, 1867 ; that on December 23d, 1866, defendant moderately corrected the child of plaintiff by a former husband by tying it, not to exceed five minutes, to a post on the porch of their house, and upon the interference of plaintiff, treated her person with some violence, but did her no…

Application to the Supreme Court for mandamus. Held: no call should be made; if it has not been held, a knowledge of this fact is indispensable to the relator’s case. Eor otherwise it does not appear that the Board has omitted the performance of any duty. If such election was held its validity and the title of the persons elected as trustees cannot be tried in this proceeding.

Defendant was indicted for the murder of Charles Watson, committed on or about April 9th, 1868, in Lyon County, by stabbing him with a pocket knife, by means whereof he then and there died. The cause was tried in May, 1868, and resulted in a conviction for the crime of murder in the first degree.

<p>Manner, of Carrying up alleged Errors on Appeal. Alleged errors in a charge or instruction can only be brought to the attention of the Supreme Court in one of three ways: either by being embodied in a bill of exceptions, or in a settled statement, or endorsed by the judge as provided by Section 42G of the Practice Act; and unless presented in one of these ways, the Supreme Court will not notice them.</p>

<p>No Injunction on Complaint Alone When fully Denied by Answer. As a general rule, an injunction will not be granted upon a pleading alone, whose material averments are denied by the pleading of the opposite party.</p> <p>Practice as to Injunctions. Under Section 111 of the Practice Act, as amended in 1864, (Statutes of 1864, 15) an injunction can only be granted after notice, or after an order to show cause; and an order refusing an inj unction will not be disturbed on appeal, if the record does not show such notice or order to show cause.</p> <p>Appellant Must Show Error Affirmatively. An appellant, to entitle himself to a reversal of the order or judgment complained of, must make such an affirmative showing as will negative at least the probability of the correctness of such order or judgment.</p> <p>Practice as to Restraining Orders. Under Section 111 of the Practice Act, as amended in 1864, a temporary restraining order, to continue during the pendency of the application for an injunction, may be granted without notice or order to show cause; but it seems that an appeal is authorized only from an order granting or refusing an injunction properly so called.</p>

This was an action of ejectment brought to recover one hundred and sixty acres of land, commonly called the “ Chapin Tract,” on Steamboat or Galena Creek, in Washoe County, and sixteen thousand dollars damages for detention thereof and waste.

This was a suit by Horatio S. Mason and Socrates Huff, partners doing business at Carson, under the firm name of Mason & Huff, against R. Perry and T. W. Hackett, of Ophir, to recover seventeen hundred and twenty-eight dollars and ninety-six cents, with interest thereon, for goods, wares, and merchandise sold and delivered.

This was an action brought against James W. Haines, John B. Winters, Frederick Shetter, Thomas Wells, and George F. Jones, . who were doing business under the name of “ The Carson Flume Company,” to recover twelve hundred and forty-one dollars and forty-three cents for work, labor, and services performed by various persons, assignors of the plaintiff.

The facts are stated in the opinion. I. There was no issue to support the motion for nonsuit. The complaint alleges that the moneys were “ received (by Coover) on the sale of the estate, etc.,” not that he made sale of estate.

This was a suit, purporting to be in equity, to recover three hundred and forty-four dollars and fifty-three cents, alleged to have been loaned by plaintiff to Eliza Taylor before her marriage with her codefendant A. M. Taylor, and to have the judgment therefor declared a lien upon, and for the sale, for the payment of the same, of certain real estate in Douglas County, the separate property of Eliza Taylor, her title to which was alleged to have been perfected with the…

<p>Failure of Transcript to Siioiv Disposition of Motion for New Trial. Where a transcript on appeal does not show that the motion for a new trial was ever submitted to, or passed upon by, the court below, the judgment roll only will be looked into; and if no error appears in it, the judgment will be affirmed.</p>

This was an action brought against Thomas Seale and James Anderson, of whom the former alone was served, to recover eight hundred and thirty-seven dollars and twenty-two cents, on open accounts, for goods alleged to have been sold and delivered to, and labor performed for, the defendants, as partners in the mill business in Storey County.

<p>Non-Appellate Order. An order refusing to transfer a cause from a State district court to a United States court is not one of the orders contemplated by Section 285 of the Practice Act, and no direct appeal lies therefrom.</p> <p>Mandamus — its Function. Where a district court refused to transfer a cause pending in it to a United States court, and a mandamus was applied for against the district judge to compel such transfer: Held, that mandamus was not the proper remedy, for the reason that the writ could only direct the cour.t below to act, not how to act; and that to entertain the application would be in effect to review judicial action, which was not the function of mandamus.</p> <p>Order Refusing Transfer of Cause to United States Court — How Reviewed. If a motion to transfer a cause from a State district court to a United States court is refused, the proper remedy is by appeal from the final judgment, accompanied with a proper statement or bill of exceptions ; and as such appeal will furnish a plain, speedy, and adequate remedy, the writ of mandamus will not lie.</p>

Action to recover the sum of seven hundred and seventy dollars and fifty cents for work, labor, and services performed in the year 1867, at defendant’s request, in floating timber down Carson River from various points to Empire City, in DougW County.

The facts are stated in the opinions. I. The contract, under which defendant claims affirmative relief, contravenes neither law nor public policy, but is consonant to both. (Fleming v. Snow, 10 Iowa, 318.) The pre-emption statute never meant to say that pre-emptors could not make amicable arrangements of difficulties existing between them. And equity looks with favor upon all contracts and agreements that have for their aim the quieting of litigation.

' Appeal from the District Court of the Fourth Judicial District, Lyon County. This was an action for divorce from the bonds of matrimony, on the grounds of willful desertion and extreme cruelty, and praying for the custody and control of the three infant children of the marriage and for general relief.

This action was originally brought by John Sime, B. F. Hastings,, and Joseph M. Douglass, against Henry C. Howard to foreclose-the mortgage referred to in the opinion. The complaint was after-wards amended by making William R. Armstrong a party defendant, and in other respects.

■ The amount of delinquent school tax sought to be recovered in this action was four hundred and thirty-one dollars and ninety-five cents. The suit was against the bant, its real estate and improvements, and certain fictitious persons. The bank made no appearance, and judgment by default was rendered against it for the amount claimed.

This was an action against F. A. Tritle, John Mackey, and William Sharon, to recover six thousand dollars, the value of two hundred and fifty cords of nut-pine wood. The cause was tried before a jury, who found a verdict in favor of plaintiff to an amount of ninety-three cords of wood, worth fifteen hundred and eighty-one dollars; and judgment was entered accordingly.

This was an action for a dissolution of an alleged copartnership between the parties, an accounting between them, the appointment of a receiver, and general relief.

This was a certiorari sued out of the District Court by D. M. Bull, who describes himself as a resident and tax-payer of Justice Judicial District, No. 11, in Washoe County, against John Snod-grass, A. C. Cleaveland, and-Erost, composing the Board of County Commissioners of Washoe County, to bring up their proceedings in the appointment of E. M. Willis, as a Justice of the Peace of said district, for review.

This was an action to foreclose a mortgage on certain lots of land in Virginia City, brought against J. H. Pleilshorn, John Dohle, G. Stevenot, an'd W. 0. Ralston.

• This was an action against C. Carpenter, F. Birdsall, and P. H. Clayton, the nature and facts of which are stated in the opinion. I. The doctrine of the Courts of California in relation to water rights has been sanctioned by this Court. (Lobdell v. Simpson Hall, 2 Nev. 277.) ’ The following principles have been settled: First — Water rights have been secured by prior appropriation. Second — Appropriation consists in talcing actual possession.

The lands of the plaintiff, alleged to have been injured by the acts of the defendants, lie in Douglas County upon the banks of the Carson River, and»consist of the east half of section twenty-six and the west half of section twenty-five in township thirteen north, in range nineteen east, of Monte Diablo. They are agricultural lands and especially adapted to hay raising and pasture purposes. The damages sued for are alleged to have been occasioned in the summer of 1867.