Volume 41 — Nevada Reports

Harwood, Judge. In the matter of cost bill of appellant, to which respondent filed objections with the Clerk of the Supreme Court. From the Clerk’s adverse ruling, he appeals. (For opinion on former appeal, see 39 Nev.1.) Respondent objects to the item of $75 claimed in the cost bill for premium paid surety company for undertaking on appeal and stay of proceedings. This expense is especially allowed by statute.

C. Stoddard, Judge. Suit by Augusta Elizabeth Walker against Chandler Merrill Walker for divorce. From a judgment for plaintiff after motions to strike the answer and a general demurrer thereto were sustained, defendant appeals.

<p>1. Attachment — Nature of Remedy.</p> <p>Tiie remedy by attachment is dependent upon statute.</p> <p>2. Attachment — Personal Property — Custody.</p> <p>To effect an attachment of personal property it must be taken into the custody of the officer serving the writ, and unless that is done there is no existing attachment.</p> <p>3. Attachment — Natube of Custody — Statute.</p> <p>Under Rev. Laws, 5152, providing that xiersonal property capable of manual delivery shall be attached by taking it into custody, the custody required of the attaching officer is such as to enable him to retain and assert his power over the property so that it cannot be withdrawn or taken by another without his knowledge.</p> <p>4. Attachment — Lien—Possession of Attaching Officer.</p> <p>It is the duty of the attaching officer to take the property attached into his possession, and the lien of the attachment, as to subsequent purchasers and other creditors, is ineffective if the officer abandons his possession.</p> <p>5. Attachment — Personal Property —• Custody of Attaching Officer.</p> <p>When the personal property on which a levy of attachment has been made is left by the attaching officer in the possession of the debtor, it ceases to be in custodia legis and may be taken by other creditors.</p> <p>6. Appeal and Error — Dissolution—Stay—Effect.</p> <p>IVliere tlie court dissolved an attachment of personal property and the attaching officer immediately delivered it over to the debtor and took his receipt therefor, the court’s order was executed, and the subsequent appeal and bond staying the execution of the order were ineffective, and the debtor might thereafter dispose of the property as he saw fit.</p> <p>7. Attachment — Chattel Mortgages —• Effect of Release from Attachment.</p> <p>Where an attachment of personal property was dissolved by the court’s order and was at once delivered to the debtor upon his receipt therefor, a chattel mortgage, previously filed, covering the property so released from attachment, became immediately effective.</p> <p>8. Bankruptcy — Dissolution of Attachment — Right of Subrogation.</p> <p>An attaching officer, who after the court’s order dissolving an attachment of personal property delivered it to the debtor on his receipt therefor, had no right or special property therein, so that there were no rights to which the debtor’s referee in bankruptcy could be subrogated.</p> <p>9. New Trial — Time for Motion — Waiver.</p> <p>Where respondents became a party to an order of the trial court extending the time in which plaintiff might file his notice of intention to move for a new trial, they thereby waived any objection on the ground that such notice was not served within the time prescribed by law.</p> <p>10.New Trial — Motion for New Trial — AVaivbr of Objections.</p> <p>A party may waive his right to object to any of the proceedings preliminary to a motion for a new trial, or that they have not been taken, filed, or served within the time prescribed by rule or statute.</p>

A. Ducker, Judge. Action by J. Sheehan and John G. Taylor, copartners, doing business under the name and style of Taylor & Sheehan, against S. B. Kasper. From judgment for plaintiffs, and an order denying his motion for a new trial, defendant appeals.

C. Stoddard, Judge. Action by L. Pincolini, and others, against the Steamboat Canal Company, a corporation. There was a judgment for plaintiff, and a motion for a new trial being denied, defendant appeals. Rehearing denied.

Langan, Judge. Suit by George E. McCracken against the State. From an order overruling its demurrer, and from a judgment for plaintiff for the amount sued for, the State appeals. The demurrer should have been sustained, because there is no allegation of an unexhausted specific appropriation, and section 13 of the school law does not make an appropriation for the traveling and office expenses of deputy superintendents.

Ducker, Judge. Action by Thomas Nelson against Edward Reinhart. From judgment rendered, plaintiff appeals. Statement of Facts Thomas Nelson, the appellant here, commenced the action in the lower court for the collection of money loaned. Respondent answered by admitting the allegations of plaintiff’s complaint and by setting up a counterclaim by way of defense. .

<p>Application of W. A. Nagel for a writ of habeas corpus.</p>

Original proceeding in prohibition by Steve O’Brien and others against A. F. Trousdale and others, comprising the Board of County Commissioners of Humboldt County, and S. G. Lamb, Sheriff. The state constitution gives the supreme court jurisdiction to issue writs of prohibition to inferior tribunals. In regulating this power, the legislature has granted the court jurisdiction over inferior tribunals, and specifically names ministerial” boards.

Petition for certificate of probable cause. George B. McFarlin was convicted of embezzlement, and, pending his appeal, petitions for a certificate of probable cause, and to be admitted to bail. Heard at chambers by the Chief Justice, and petitioner admitted to bail.

<p>1. Witnesses — Ci-iakacter oe Deceased — Cross-Examination.</p> <p>In. prosecution for iiomicicle, where defendant introduced evidence of deceased’s bad character, and the state introduced witnesses in rebuttal thereof, defendant should have been allowed to cross-examine the witnesses as to the particular facts upon which they based their statement of reputation, and even to inquire whether they had heard of specific brawls in which deceased had engaged.</p> <p>2. Witnesses — Character oe Deceased — Cross-Examination.</p> <p>The rule that an interrogation assuming the existence of a fact not in evidence is not admissible does not prevent the answering of questions testing the knowledge of general reputation of a character witness by inquiry as to his having heard of specific acts.</p> <p>3. Criminal Law — Objections to Questions to Witness.</p> <p>Where one accused of homicide was permitted without objection to introduce evidence attacking deceased’s reputation for peace and quiet before he had testified to an overt act of deceased looking toward his claim of justifiable homicide, it was too late for the state to object to questions on cross-examination of character witnesses as to whether they had heard of deceased’s acts in testing whether they knew his reputation.</p> <p>4. Homicide — Character oe Deceased — Evidence—Admissibility.</p> <p>The character or reputation of the deceased in homicide cases is to be proven rather by evidence of general reputation of the deceased in the community in which he lived than by particular acts or instances which were not a part of the res gestee, nor connected therewith.</p> <p>5. Criminal Law — Appeal—Prejudice.</p> <p>Refusing to permit one accused of homicide to cross-examine witnesses as to whether they knew of certain acts of deceased showing that he was of turbulent spirit was harmful and substantial error.</p> <p>6. Witnesses — Character oe Deceased — Cross-Examination.</p> <p>In prosecution for murder, wherein accused claimed self-defense, witnesses as to character of deceased for peace and quiet were properly cross-examined by questions asking whether they knew certain persons and remembered whether deceased had assaulted them; the form of the questions being unobj ectionable.</p>

Habeas corpus by P. N. Rovnianek, held in custody by John T. Burke, as agent of the State of Pennsylvania, under a warrant of the Governor of Nevada, upon the requisition of the Governor of Pennsylvania. There is no showing that the petitioner was a fugitive from justice in such a sense as to estop the statute of limitations from running.

Orr, Judge. Action by the Washoe County Bank, a corporation, against W. C. Campbell and others. From the judgment rendered, plaintiff appeals. Coleman, J., dissenting. An oral lease of lands for more than one year is void; likewise an oral surrender of a lease, covering a period of more than one year, is equally void.

Averill, Judge. Charles Comisford was convicted of murder in the second degree, and he appeals. The court erred in its instruction as to self-defense in that the jury was instructed that the question of necessity was not for the defendant, but for the jury, thus precluding the jury from considering the effect on the mind of the defendant of the surrounding circumstances.

Walsh, Judge. Hector MacKinnon was convicted of assault with a deadly weapon, and appeals. The information is fatally defective, in that it does not state facts sufficient to constitute a public offense, and particularly the offense with which the defendant was sought to be charged, or the offense of which the appellant was convicted.

J. L. Taber, Judge. Sam Bachman was convicted of grand larceny, and appeals from the judgment and from an order denying his motion for new trial. The appellant, while in the custody of the sheriff, prior to and at the time of the impaneling of the grand jury which returned the indictment, had the right to challenge individual members of said grand jury.

E. Winters, Judge. Action by John Saval against Phil Blume. From order refusing to hear motion for new trial, plaintiff appeals. This is an appeal from an order of the district court refusing to hear plaintiff’s motion for a new trial for the reason that the' notice of intention to move for a new trial was void.

<p>1. Appeal and Error — Disposition op Case — Modification by Consent.</p> <p>Under Rev. Laws, 4835, authorizing the supreme court to reverse, affirm, or modify the judgment or order appealed from, the court has power to modify a judgment for delinquent taxes by reducing the amount of the recovery, and will so modify the judgment where the attorney-general, the district attorney, and the attorney for defendant stipulate for such modification, notwithstanding section 3660, imposing an additional penalty in suits for the collection of delinquent taxes, and providing that the judgment shall not be satisfied except by the payment of the tax, the original penalty, the costs, and the additional penalty therein prescribed in full.</p>

<p>1. Evidence — Circumstantial Evidence — Quantum.</p> <p>When circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not themselves presumed.</p> <p>2. Money Lent — Actions—Evidence—Sufficiency.</p> <p>Evidence that defendant owed a third person money; said he would .pay if he could get the money; went with plaintiff’s decedent to the bank; that the decedent withdrew $600 from the bank; that the money was paid to the decedent; and that defendant on the same day paid the debt — is insufficient to support a verdict for money lent.</p> <p>3. Payment — Presumptions.</p> <p>The mere fact that defendant got $600 from deceased raises the presumption of law that he received it in payment of a debt.</p>

Moran, Judge. Action for divorce by Romain Blakeslee against Laura E. Blakeslee. From a judgment for plaintiff, defendant appeals. The judgment of the lower court is not sustained by the evidence in granting a decree for extreme cruelty, because the parties were never domiciled in Nevada, and no act of any kind ever occurred in Nevada; hence there was no extreme cruelty in Nevada.

Averill, Judge. Action by G. F: Talbot against C. E. Mack. Judgment for defendant, and plaintiff appeals. The letter alleged to be libelous could not be absolutely privileged, as claimed in the demurrer, because absolute privilege pertains only to matters legislative or judicial or relating to the army or navy.

C. Stoddard, Judge. Action for divorce by George Oliver Roberson against Lucy Roberson. Judgment for defendant, and plaintiff appeals. The desertion proved by plaintiff’s oral testimony and by letters was what may be called constructive desertion.

<p>1. LANDLORD AND TENANT-RECEIPT — EFFECT.</p> <p>A rental receipt for a period longer than tliat named in the lease is only evidence of money paid, and does not establish a new consideration necessary to a modification of the lease.</p> <p>2. Landlord and Tenant — Modifying Lease — Consideration.</p> <p>Evidence that lessee worked the demised premises from the date of the lease, although the landlord’s horses were pastured on it for several weeks from such date, helé not to establish a consideration for an agreement extending the lease two weeks.</p> <p>3. Evidence — Lease—Parol Evidence.</p> <p>Land covered by a lease may be identified by parol evidence, but such evidence cannot supply an entire absence of description.</p> <p>4. Reformation of Instruments — Reforming Contract — Fraud.</p> <p>A written contract, in which an¡ omission occurs through fraud or mistake, will not be reformed, in order to decree specific performance.</p> <p>5. Evidence — Description—“Any Part.”</p> <p>A lease authorizing the lessee to purchase “any part” of certain premises helé too indefinite to be aided by parol evidence, and to afford the lessee no defense in a forcible entry and detainer action.</p> <p>6. Vendor and Purchaser — Description—Sufficiency.</p> <p>An option contract must so describe the property that it can be identified from the instrument itself, although xiarol evidence is admissible to show the description’s application.</p> <p>7. Appeal and Ekrok — Review—Findings.</p> <p>A finding supported by substantial evidence will not be disturbed, where no passion or prejudice on the trial court’s part is indicated.</p> <p>S. Jury — Waiving Right to — Setting Aside.</p> <p>Where the right to a jury trial is waived by oral consent in open court, entered in the minutes pursuant to Rev. Laws, 5226, setting aside such waiver rests in the trial court’s discretion.</p> <p>9. Jury — Waiver oe Right — Setting Aside.</p> <p>The trial court did not abuse its discretion in refusing to set aside a waiver of jury trial made in open court, where the application was not made until the trial.</p>

Averill, Judge. Certiorari by J. W. Lawson against Harry Dunseath, as Justice of the Peace of the Township of Tonopah, County of Nye, and George L. Bailey. From a judgment and order dismissing the petition, petitioner appeals. The complaint was never actually filed in the justice’s court, and hence the action was never legally commenced. The so-called complaint is merely designated a complaint, sufficient for the purpose had it taken the course prescribed by law.

Original proceeding in certiorari by Sam Gay to inquire into the jurisdiction of the District Court of the Tenth Judicial District of the State of Nevada, in and for the County of Clark, and Charles Lee Horsey, Judge of said Court. The supreme court has power to issue a writ of certiorari. (Const. Nev., art. 6, sec. 4.) The legislature cannot take away or limit the right and power of the court to issue the writ.

Averill, Judge. Action by Phoebe J. Guisti against John Guisti. Judgment for plaintiff, and defendant appeals. Respondent has made two motions which do not go to the merits of the case.

<p>Appeal from Sixth Judicial District Court, Humboldt County; E. A. Bucket, Judge.</p> <p>Action by James L. Shute against the Big Meadow Investment Company. Judgment for the plaintiff, and defendant appeals.</p>

Langan, Judge. Suit by Frank L. Wildes, as receiver of the State Bank and Trust Company, a corporation, against the Lou Dillon Goldfield Mining Company, a corporation. Judgment for plaintiff by default. From an order refusing to set aside the judgment, the defendant appeals.

In the matter of the estate of Albert Kattenhorn, deceased. From a decree distributing all of the estate to Lulu Kattenhorn, widow of the deceased, Annie F. Kattenhorn appeals. Whether it is community or separate, the appellant, mother of the deceased, is entitled to one-half of the property. The estate consists of both community and separate property.

In the matter of the estate of Patrick H. Delaney, deceased. On appeal from rulings on items of the account of the administrator. Although the administrator may have done the assessment work on the mining claims in the best of good faith, he will not be heard at this time to say that he is entitled to credit for those speculative expenditures that resulted so disastrously for the persons entitled to distribution.

Original proceeding in quo warranto by the State, on the relation of the City of Reno, against the Reno Traction Company. Defendant moves to have the cause removed to the Federal Court.

Original proceeding in certiorari by L. H. McKibbin against the District Court of the Second Judicial District of the State of Nevada, in and for Washoe County, and Thomas F. Moran, Judge thereof. The question involved is the construction to be given to section 4992, Revised Laws.

N. Salisbury, Judge. Suit by the Nevada Industrial Commission against Washoe County. Judgment for plaintiff on defendant’s refusal to plead further after its demurrer to the complaint was overruled, and defendant appeals. The complaint in this action fails to state facts sufficient to constitute a cause of action, the statute upon which it is based (Stats. 1913, p. 137) being invalid and unconstitutional, for the following reasons: 1.

J. L. Taber, Judge. Al. Snyder was convicted of robbery, and appeals. The court erred in refusing to advise the jury to bring in a verdict acquitting the defendant, when requested so to do. There was no proof that chloral had been administered; and if in fact it had been administered, there was no proof that the defendant had been in any way connected with such administration.

J. L. Taber, Judge. Pat Bond and Sherman Owensby were convicted of robbery, and they appeal.

Langan, Judge. Action by Donald Maclean against George Brodigan, as Secretary of State of the State of Nevada, and Maurice J. Sullivan, as Lieutenant-Governor and ex officio Adjutant-General of the State of Nevada. From an order overruling a general demurrer to the complaint and judgment, defendants appeal.

Certiorari by Louis Mazade to review a judgment of the Justice’s Court of Goldfield Township, Esmeralda County, in an action by M. C. Peterman against Louis Mazade. From the judgment of the district court dismissing the writ of certiorari and order on motion for new trial adhering to the former ruling, Mazade appeals, and defendant moves to dismiss the appeal. The appeal should be dismissed.

C. Hart, Judge. George B. McFarlin was convieted of embezzlement, and from the judgment, and denial of his motion for new trial, he appeals. The facts stated in the information do not constitute a public offense. The information attempts to bring the case within the provisions of section 6653, Revised Laws, but lacks the necessary allegations for that purpose.

<p>1. Certiorari — Judqments Review able — Order on Certiorari — ■ Justice’s Courts — Score of Review.</p> <p>Where, on defendant’s appeal from adverse judgment in justice’s court to the district court on questions of law only the judgment was affirmed, defendant’s right to certiorari was limited to a review of the district court judgment, from which no appeal lies; and certiorari would not lie from the supreme court to review the judgment of the justice.</p>

C. Stoddard, Judge. Suit by P. L. Flanigan against Charles H. Burritt for a peremptory writ of mandamus. A demurrer to the complaint was overruled, and from a denial of leave to answer to the merits, and a judgment for plaintiff, defendant appeals. In all cases in regard to writs of certiorari, mandamus, and prohibition, the practice act is applicable to and governs proceedings in those matters.

Original proceeding in certiorari by the State, on relation of George W. Abel, against Hon. Peter Breen, as Judge of the District Court of the Third Judicial District in and for the County of Lander, and the District Court of the Third Judicial District in and for the County of Lander. The jurisdiction of the justice’s court is limited by the constitution and the statutes.

<p>1. Counties — Commissioner—Removal—Ci-iaeacteb oe PROCEEDINGS.</p> <p>Complaint on bebalf of state for benefit of a county, stating that tbe complainant is a citizen, resident and taxpayer of tbe county, and is foreman of tbe grand jury and at tbe request of tbe grand jury petitions for removal of county commissioner, was a proper petition under Rev. Laws, 2S51, et seq., providing for removal, and not under section 6894, et seq., providing for removal after jury trial, since tbe allegations as to action on tbe grand jury’s request were surplusage; tbe complaint being sufficient without them.</p>

C. Stoddard, Judge. Suit by Margaret Wade against Ben Wade and others, to set aside a divorce decree. From a decree for defendants, plaintiff appeals. The complaint in the action states facts sufficient to constitute a cause of action.