Volume 40 — Nevada Reports

<p>3,. Mayhem — Information—Objection to Sufficiency — Time.</p> <p>An Information charging mayhem in the language of Rev. Laws, 6416, defining the offense as unlawfully depriving a human being of a member of his body, or disfiguring or rendering it useless, such as slitting the ear, without charging permanent disfigurement, which, under section 6418, is necessary to conviction, is nevertheless good in the absence of demurrer.</p> <p>2. Mayhem — Information—Sufficiency—“Slit.”</p> <p>Under Rev. Laws, 6416, defining mayhem to include slitting the ear of a human beiDg, and in view of section 6417, stating that it is immaterial how the injury is inflicted, an information charging that accused bit off a portion of an ear of one C, is sufficient, though- “slit” may be broader than “bite.”</p> <p>3. Mayhem — Evidence—Sufficiency.</p> <p>Evidence held to show permanent disfigurement so as to support conviction of mayhem.</p> <p>4. Criminal Law — Instructions—Included Offenses.</p> <p>Under conclusive evidence of permanent disfigurement, it is not error to refuse instruction permitting conviction of the lesser offense of assault, under Rev. Laws, 6418, which applies only if permanent disfigurement is not shown.</p> <p>5. Criminal Law — Instructions—Permanent Disfigurement'— Prejudice.</p> <p>An instruction to convict if permanent disfigurement is shown, though incomplete, in failing to define permanent disfigurement, is not prejudicial, where the evidence is without conflict as to extent of the injury which manifestly was a permanent disfigurement, especially in the absence of request for further instruction.</p> <p>C. Mayhem — Sentence—Minimum.</p> <p>Since Rev. Laws, 6416, providing a maximum punishment for mayhem of fourteen years, does not provide a minimum, the judge may fix the minimum at five years, under section 7260, as amended by Stats. 1915, c. 157, providing that if no minimum is fixed, the court may fix it at one to five years.</p>

<p>Original proceeding. Application by the Nevada Bar Association for the disbarment of C. 0. Burkert as an attorney at law.</p>

C. Stoddard, Judge. Action by Edwin Clay and wife against the Scheeline Banking and Trust Company and another. From an adverse judgment, plaintiffs appeal.

C. Stoddard, Judge. Suit by Su Lee and Charley Bi Yen, suing for themselves and others as members and on behalf of the Lin Hing Gungsha, or Joss House Society of Reno, Nevada, against F. J. Peck and others. From a judgment of nonsuit and from an order denying a motion for a new trial, plaintiffs appeal. The court erred in entering the judgment of nonsuit, and refusing to grant a new trial, because the testimony showed a gift to the plaintiffs for a public charitable use.

Langan, Judge. Action by Bessie Miller against W. B. Thompson. Judgment for the plaintiff, and the defendant appeals. The court erred in permitting the plaintiff on the day of the trial to amend her complaint without notice to the defendant or adverse party, or to his attorneys.

C. Stoddard, Judge. ■ Action by Lloyd Aspinwall against Elizabeth Roosa Aspinwall. From an order dismissing the action plaintiff appeals. Where a plaintiff is a resident of the state and the defendant is found and served within the jurisdiction, the court has jurisdiction regardless of the length of plaintiff’s residence.

Averill, Judge. Action to foreclose a mechanic’s lien by George A. Phillips against the Snowden Placer Company and others, in which Charles 0. Dahlstrom and Louie Amedeo,' lien-holders, were permitted to intervene. Judgment in the district court in a trial de novo on appeal from a justice’s court, in favor of the plaintiff and the interveners. Motion for new trial denied, and defendants appeal. Coleman, J., dissenting in part.

Ducker, Judge. Action by Alphonse Bernard against the Metropolis Land Company, a Corporation. Held: plaintiff is barred and precluded by the final decree entered therein. .

<p>Appeal from Sixth Judicial District Court, Humboldt County; Edward A. Bucher, Judge.</p> <p>Action by H. Warren against the Glasgow and Western Exploration Company, Limited. From a judgment for plaintiff, defendant appeals.</p> <p>Respondent has tried to avoid the bar of the statute of limitations by suing on a quantum meruit, with a continuing contract as a base. The testimony shows that he entered into an express contract, containing a stipulated price for his services each year. He could have sued either on quantum meruit or the implied contract, but he is seeking to avoid the bar of the statute of limitations; endeavoring to accomplish by indirection that which he could not accomplish directly. This the law will not permit. (Elliott on Contracts, vol. 3, par. 2657.) All of the cause of action of the respondent arising prior to four years before the commencement of the action is barred. {Mosgrove v. Golden, 101 Pa. 605.) "Under a general retainer to attend to all of a man’s business, without stipulation as to the time and mode of payment, the fee for each service is due as soon as the service is rendered, and the statute of limitations begins to run immediately. {Jones v. Lewis, 11 Tex. 359.)</p> <p>Respondent cannot be heard to contend that there was a distinct retainer for each year of his employment, impliedly or otherwise, for his evidence shows that he relies upon a continuing contract, with- the further purpose of avoiding the statute of limitations. In other words he was retained for the first year; impliedly, therefore, he was retained for the second year, and so on for each year of his alleged employment, and all his retainers prior to four years before the commencement of the action are barred by the statute of limitations. Respondent’s theory of service by retainer for each year will not harmonize with a continuous contract. He cannot recover a series of retaining fees and still maintain that his contract was a continuing one and not barred by the statute of limitations.</p> <p>This action having been brought under a complaint on quantum meruit, we were properly allowed by the trial court to prove a specific contract fixing the price for service. The stipulated price becomes the quantum meruit in the case. (Burgess v. Helm, 24 Nev. 249; Fells v. Vestvali, 2 Keyes, 152.)</p> <p>There is a wide difference between a contract from year to year and a yearly compensation on a continuous contract. The evidence shows conclusively that the contract was not intended to last for only one year, but that the officers of the company were fully aware of the continuous nature of the employment, and therefore the statute of limitations did not begin to run until the completion of the services. (Ah How v. Furth, 13 Wash. 550, 43 Pac. 63; Morrissey v. Faucete, 68 Pac. 354; Grisham v. Lee, 61 Kan. 533, 60 Pac. 314; Crampton v. Logan, 28 Ind. App. 405, 63 N. E. 51; Graves v. Pemberton, 3 Ind. App. 71, 29 N. E. 177; Laggart v. Levanny, 1 Ind. App. 339, 27 N. E. 511; Story v. Story, 1 Ind. App. 284, 27 N. E. 573; Carter v. Carter, 36 Mich. 207; Jackson v. Mull, 42 ■Pac. 603; Fetal v. Warren, 138 S. W. 694.)</p>

Brown, Judge. Action by the Robinson Mining Company against Richard A. Riepe and others. From judgment against defendant Bertha Ives on her counterclaim,, she appeals. Respondent converted appellant’s stock, because it asserted right and title to it in defiance of her right, and because it refused to cut it up into smaller denominations when such refusal clearly interfered with her right to dispose of the same.

<p>1. Elections — Mandamus—Nominations—Vacancies.</p> <p>Stats. 1915, e. 285, sec. 4A, the general election law, provides that, should a vacancy occur in the nominees for any office, it may be filled before election day by the committee to which such power has been delegated, and Stats. 1915, c. 283, regulating nominations for public office by primaries, conventions, petitions, etc., by section 26 provides that vacancies in nominations occurring after any party convention shall be filled by the party committee, etc. The Democratic county convention nominated a candidate for clerk and treasurer, and on his declination took no further action and left the place blank in the certificate of nomination, and adjourned without delegating any authority to its committee, but the executive board of the committee filed a certificate of nomination. Bel'd, that the filing of .such certificate was unauthorized, and that mandamus would issue to compel the county clerk to exclude from the ballots at a coming general election the name of the candidate contained in such certificate.</p>

<p>1. Criminal Law — Conviction—Notice of Appeal — Sufficiency— Statute.</p> <p>Rev. Laws, 7513, provides that, on appeal from a conviction before a justice, appellant shall file with the justice and serve upon the district attorney a notice, setting forth the character of the judgment and his intention to appeal therefrom. A notice of appeal was addressed to the district attorney and to an acting justice of the peace, stating that defendant intended to appeal, and did thereby appeal, from a conviction in the justice court of receiving and buying personal property from an intoxicated person, and from the judgment and sentence of the justice court imposing a fine, and in the alternative an imprisonment, upon questions of both law and fact. Held, that, the notice of appeal was sufficient.</p>

<p>1. Attorney and Client — Disbarment Proceedings — Evidence— Sufficiency.</p> <p>In a proceeding for disbarment of an attorney, evidence, consisting in part of an affidavit, held to support a charge that respondent by falsely and wilfully representing to an officer that affiant was defendant in a divorce action in which respondent was attorney for plaintiff, procured the service of summons on affiant and a false affidavit of service.</p> <p>2. Attorney and Client — Disbarment—Grounds.</p> <p>An attorney’s action in knowingly and fraudulently procuring the service of summons in a divorce action in which he was counsel for plaintiff, upon another than defendant, and by falsely representing to the officer that the person served upon was said defendant, procured him to make a return of service showing falsely that the summons had been duly served upon said defendant, was misconduct sufficient for disbarment.</p>

C. Stoddard, Judge. Action by William 0. Leach against Mason Valley Mines Company. From judgment for defendant, plaintiff appeals. The alleged release comes within the provisions of section 5652, Revised Laws, and cannot constitute any defense in bar of appellant’s cause of action.

Ducker, Judge. Suit by Charles Carey against George H. Clark. From a judgment for plaintiff, and an order denying his motion for new trial, defendant appeals. Failure to convey all of the land described in an agreement, even though a portion thereof was conveyed, would be as much a failure to comply with the terms of the contract as though no part of the land had been conveyed.

<p>1. Sai.es — Illegal Consideration.</p> <p>Generally where goods are sold for the express purpose of enabling the buyer to accomplish an unlawful or immoral purpose, there can be no recovery for their price.</p> <p>2. Sales — Illegal Consideration.</p> <p>Generally where the vendor of goods merely has knowledge that the purchaser intends to use them for an immoral or illegal purpose, and does nothing to aid in carrying out such purpose, he is entitled to recover therefor.</p> <p>3. Intoxicating Liquors — Contracts—Validity—Note eor Price.</p> <p>A note for balance of indebtedness for liquors sold and delivered to the maker, engaged in conducting a house of ill-fame within the restricted distance from a church, was not invalid, though the seller knew the liquors would be resold upon the premises; there being nothing unlawful in the sale nor any law prohibiting sale of liquors at such house, since the buyer had a license to sell liquor there.</p>

Original PROCEEDING in mandamus by the State, on the relation of F. Freyesleben, Austro-Hungarian Consul, against the Ninth Judicial District Court in and for the county of,White Pine, and another. It is the duty of respondent to receive the petition of relator and to pass upon the evidence submitted. A consideration of the evidence will disclose that it is the- imperative' duty of respondent to remove the administrator of the estate.

Action to quiet title by Mary Wren, administratrix of the estate of Thomas Wren, deceased, and by Mary Wren, individually, and Thomas Wren, Jr., and Marie Wren, minors, by their guardian ad litem, L. F. Thomas, against Thomas Dixon. Judgment for defendant, and plaintiffs appeal.

Original proceeding in mandamus, by the State, on the relation of Ernest E. Brown, against the Nevada Industrial Commission. Mandamus is the proper remedy in the case at bar. It is not only the proper remedy, but the only remedy in the case. Petitioner has no speedy nor adequate remedy at law. Certiorari, prohibition, injunction, or any other remedy, extraordinary or otherwise, would not avail to give petitioner relief.

<p>1. Courts — Municipal Court — Jurisdiction—Constitutional and Statutory Provisions.</p> <p>Const., art. 6, sec. 6, gives to district courts original jurisdiction in cases involving the legality of any tax, assessment, or municipal fine, etc.; section 8 requires the legislature to determine the number of justices of the peace in each city, etc., and provides that justice’s courts shall not have jurisdiction of cases conflicting with the jurisdiction of the courts of record; and section 9 requires the legislature to fix by law the jurisdiction of municipal courts. The charter of the city of Reno (art. 14, sec. 1) created a municipal court, by section 3 gave it jurisdiction as then provided for justices of the peace as- to civil or criminal cases for the violation of any ordinance, and by section 6 provided that it should be treated as a justice’s court, in case its proceedings should be questioned. Rev. Laws, 5721, relating to transfer of causes from justice’s court, provides that the parties cannot give evidence on questions involving the legality of any tax, municipal fipe, etc. An ordinance imposed a certain license upon every attorney practicing his profession in the city, payable quarterly in accordance with the gross receipts, and thereunder petitioner was convicted in the municipal court and committed. Held, where the issue involved the legality of a tax and the constitutionality of the ordinance imposing the tax, the municipal court had no jurisdiction, and was bound to transfer the proceedings to the district court.</p> <p>2. Courts — Municipal Court — Jurisdiction—Legality of Tax — • Certification of Question.</p> <p>In such case, where defendant challenged the legality of the tax or questioned the constitutionality of the ordinance in the municipal court, that court was ousted of jurisdiction and should have certified the pleading to the district court.</p> <p>3. Courts — Municipal Courts — Pleading—Verification.</p> <p>No plea by a defendant in a justice’s court need be verified, and such rule applies with equal force to the municipal court.</p>

C. Hart, Judge. Proceedings to determine the tax on the estate of Warren W. Williams, deceased. From an order adjudging the wife’s interest in the community subject to tax, the wife appeals. As the laws of inheritance between husband and wife apply only to the separate property, the husband and wife do not inherit any part of the community property from each other, therefore the portion of the widow is not subject to the inheritance tax.

C. Stoddard, Judge. In the Matter of the Estate of Otto Hartung, deceased. From an order denying motion by the Board of Regents of the University of Nevada for a new trial and from final decree of distribution, the Board of Regents appeals.

Moran, Judge. Appeal, pursuant to rule, from the action of the clerk taxing costs of appeal. The rule providing for the serving and filing of a cost bill refers to the decision contemplated under the original opinion. Appellant failed to file any cost bill until after the opinion on rehearing was rendered, and this court did not disturb its decision announced in its original opinion.

Coleman, Judge. On rehearing. Former opinion, reversing and remanding, The reasoning and decision of this court in the opinion filed is predicated in the right and power of the state legislature in 1897 to amend the early act of 1865 (Stats. 1864-65, p. 239) —an act passed pursuant to the constitution (sec. 31, art. 4) — in such a way as to restore to the laws of this state what has been called a homestead de facto as distinguished from a homestead recorded as required by…

<p>Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.</p> <p>On rehearing.</p>

Moran, Judge. Will contest by Mrs. William J. Gordon, and William J. Gordon, Jr., minor heir of William J. Gordon, deceased, against Mary T. Dougherty. Order refusing to admit the will to probate, and contestees appeal. (Coleman, J., dissenting). The lower court erred both in refusing to admit the will to probate and in refusing proponent a new trial.

Averill, Judge. Action by the Verdi Lumber Company, a corporation, against M. B. Bartlett and wife. From a judgment for plaintiff, defendants appeal. The question presented was not as to the sufficiency of the posting, but whether under the statute, when work is done and material furnished at the instance of the owner, through a contractor, the property is liable, even though a notice of nonresponsibility be posted. .

Original proceeding in mandamus by Edna T. Eddy against the State Board of Embalmers. The United States constitution and the constitution of the State of Nevada guarantee to every person the right to enjoy life, liberty and the pursuit of happiness. {Marymont v. Banking Board, 38 Nev. 330; Davies v. McKeeby, 5 Nev. 369; State v. Stoutmeyer, 7 Nev. 342.) It is the duty of the respondents to issue the license to petitioner.

<p>1. Attorney and Client — Proceedings eor Disbarment — Evidence.</p> <p>In a proceeding for the disbarment of an attorney, evidence that an affidavit of service of summons in a divorce suit, in which plaintiff was represented by respondent, associated with another, was altered after it was made so as to show a valid service is insufficient, as against the positive sworn denial of the attorney, to show that he made the alteration.</p>

<p>1. Indictment and Information — Surplusage.</p> <p>In view of Rev. Laws, 7052, providing that evidence tending to prove charge need not be stated in the indictment, such allegations will be rejected as mere surplusage.</p> <p>2. Indictment and Information — Statement of Offense.</p> <p>Whether the offense charged be a felony or misdemeanor is to be determined by the indictment’s statement of facts and language employed.</p> <p>3. False Pretenses — By Officer of Corporation — Indictment.</p> <p>Indictment charging the president of an insurance corporation with obtaining money by selling stock under false pretenses stated a felony under Rev. Laws, 6704, defining crime of obtaining money under false pretenses, and not a misdemeanor, under section 1174, prohibiting officer of any corporation from making false representations, the fact that the accused received the money as president being immaterial.</p> <p>4. False Pretenses — Statutory Provisions.</p> <p>General Incorporation Laws, sec. 73 (Rev. Laws, 1174), making it a misdemeanor for officer of any corporation to make false representations, does not affect the crime of obtaining money under false pretenses defined by Rev. Laws, 6704.</p> <p>5. Habeas Corpus — Grounds for Relief — Defects in Indictment.</p> <p>Defendant, convicted of obtaining money under false pretenses, having had objections to indictment overruled, was protected by his remedy of appeal and habeas corpus for his discharge would not lie.</p>

C. Hart, Judge. Action by G. M. Gardner against the Pacific Power Company. From an adverse order, defendant appeals. Pursuant to notice duly given, respondent asks this court for an order to strike out the purported assignment of errors. Said assignment, as a whole, is not properly before this court, and should be stricken.

C. Stoddard, Judge. Suit for divorce by Mary Belle H. Coffin against John Roberts Coffin. Judgment for plaintiff, motion for new trial denied, and defendant appeals.

J. MeFadden, Judge. Action by Emma G. Keenan against William M. Keenan and others. From a judgment for defendants, plaintiff appeals. The statute provides that upon the granting of a divorce the community property shall be divided equally. (Rev. Laws, 2166.) The complaint in partition must be recognized as stating a cause of .action, whether the State of Nevada recognizes appellant’s decree of divorce or not.

<p>1. Marriage — Common-Law Marriage.</p> <p>As the common law prevails in Nevada with reference to the marriage relation, that relation may be formed by words of present assent, and without the interposition of any person lawfully authorized to solemnize marriage, or to join persons in marriage.</p> <p>2. Trial — Common-Law Marriage — Instruction.</p> <p>In an action for restitution of real property, in which the defendant alleged that he was the plaintiff’s husband and that the property was community property, an instruction that, as the relationship existing between the parties in another state prior to their taking up their abode in Nevada was illicit and meretricious, that relationship must be by the jury presumed to continue illicit and meretricious throughout all the time plaintiff and defendant continued to live together, unless by a preponderance of proof a valid marriage contract was actually made and actually entered into between the parties within Nevada, was erroneous, as taking all force and effect from evidence in the case tending to establish a marital relation between the parties during their residence in Nevada.</p> <p>3. Marriage — Common-Law Marriage — Presumptions and Burden of Proof.</p> <p>Where cohabitation between man and woman was illicit in the beginning, though burden of proof is upon those asserting a valid marriage, there is no presumption that the relationship continued to be illicit, it being a matter of proof, and not of presumption, and a valid marriage under the common law may be shown by proof that the parties sustained toward each other the relation of husband and wife after the impediment to their marriage had been removed; the only presumption to be indulged in being in favor of a valid marriage, which may be based on continuous cohabitation alone.</p> <p>4. Marriage — Common-Law Marriage — Question for .Tury.</p> <p>While prostitution or immorality might militate against the presumption of a legitimate common-law marriage, such facts are for the jury to consider under proper instructions, since, even though the woman were a prostitute, if a marriage of the highest and most sacramental order had been performed between the parties, it would have had no more binding effect than a common-law marriage per verba de prwsenti, actually consummated.</p>

C. Stoddard, Judge. Action for divorce by Evelyn Woods Merritt against Fred Charles Merritt. From a judgment that the court was without jurisdiction and an order denying plaintiff’s motion for a new trial, plaintiff appeals.

Aver ill, Judge. Action by C. H. McIntosh and H. R. Cooke, doing business as McIntosh & Cooke, against Charles E. Knox. Judgment for plaintiffs, and defendant appeals. The appellant and respondents joined issue in a trial of title on the equity side of the federal court. The sole issue in the case was title. In that character of suit there can be no other issue. The respondents paid an attorney fee of $600 in the prosecution of that case.

<p>1. Animals — Unlawful Grazing — Special Damages — Pleading.</p> <p>Under allegations that defendants during month of March grazed sheep upon plaintiff’s property, thereby injuring it for grazing purposes, damages may be based upon the land’s value for grazing purposes during the lambing season, without such damages being specially pleaded, where the land was most useful for this purpose.</p> <p>2. Animals — Unlawful Grazing — Evidence.</p> <p>In damage action for unlawfully grazing sheep, defendants’ testimony that plaintiff’s sheep also grazed upon defendants’ property to their damage held not to require a finding of damage for defendants.</p> <p>3. Appeal and Error — Reserving Grounds for Review — Evidence —Sufficiency of Objection.</p> <p>Rulings upon evidence cannot be reviewed when challenged only by general objections.</p>

F. Moran, Judge. Suit by George Oliver Roberson against George D. Kilborn. From an order striking the complaint and giving judgment for defendant, plaintiff appeals. A witness is privileged to refuse to answer illegal and impertinent questions on a deposition. (Rev. Laws, 5436, 5437, 5456; Fenn v. Railroad, 122 Ga. 280; Ex Parte Jennings, 60 Ohio St. 319; McFarland v. Muscatine, 98 Iowa, 199; Meyer v. Manhattan L. Ins. Co., 144 Ind. 439; Robins v. Brockton St. Ry.

Original proceeding for prohibition by Ellen C. O’Donnell against the Sixth Judicial District Court of the State of Nevada in and for .Humboldt County, and others.

Moran, Judge. Suit by Charles F. Danforth against Minnie J. Danforth. From a judgment sustaining a plea of res adjudicata, plaintiff appeals. Actions for divorce were unknown to the common law, and the entire jurisdiction of courts in the United States is purely and wholly statutory in matters of divorce. The judgment of the lower court should, therefore, be reversed, as the Maine judgment is not a bar to the present action. The Maine judgment was simply one of nonsuit.

Langan, Judge. Action by Angus McLeod against Miller & Lux, Pacific Livestock Company, John B: Gallagher, and J. C. Snyder, administrator of the estate of Charles Snyder, deceased. From a judgment for plaintiff, defendants appeal. (McCarran, J., dissenting). The complaint does not state-a cause of' action, the findings do not support the judgment, and the facts do not show any legal liability.

Original proceeding in mandamus by the City of Reno against C. H. Stoddard, as ex officio City Auditor, and D. W. Dunkle, as ex officio City Treasurer, of the City of Reno. In one or two cases where the legislature has authorized the transfer of money raised by taxation from one fund to another, and the courts have held against the transfer, it will be'found upon investigation that there was a constitutional prohibition against such procedure.