Volume 43 — Nevada Reports

Emmett Walsh, Judge. Action by George W. Gill against the Goldfield Consolidated Mines Company, a corporation. Judgment for defendant, and plaintiff appeals. On rehearing, Not only has the respondent failed to interpose his attack against the appeal in the manner provided by law, but the appeal itself has been taken in strict accordance with the recent legislative enactment.

<p>1. Taxation — Transfer Tax — Construction of Deed of Trust.</p> <p>In determining whether a deed of trust immediately vested legal title so as to exempt transfer from a transfer tax under inheritance-tax law, the deed will be construed, together with a will executed simultaneously therewith as a single instrument.</p> <p>2. Taxation — Transfer Tax — Deed of Trust — Construction.</p> <p>Deed of trust by 86-year-old invalid after enactment of inheritance-tax law, but shortly before law took effect, transferring stock to trustees with directions to pay income to grantor during his life, with directions as to disposition of property after his death, corresponding to provisions of will executed simultaneously with deed, was intended as disposition of property to take effect at or after grantor’s death, within inheritance-tax law.</p> <p>3. Taxation — Transfer Tax — Deed of Trust — Weight of Evidence.</p> <p>Where, immediately after execution of the will, testator executed deed of trust directing trustees to pay testator income during his natural life and directed disposal of property following his death by provisions corresponding to those in will, evidence that execution of deed was an afterthought to avoid, if possible, an expected increase in the tax rate in California and a probable inheritance tax of federal government, is entitled to weight in action to impose a transfer tax under inheritance-tax law.</p> <p>4. Trusts — Revocability.</p> <p>It is only in cases where other parties besides the person creating the trust have an interest therein that the trust becomes irrevocable.</p> <p>5. Trusts — Revocabiuty—Deed of Trust.</p> <p>Deed of trust transferring stock to trustees, with direction to pay income to grantor during his life and directing disposition after death in manner corresponding to will executed simultaneously, beneficiaries receiving no present interest, grantor could revoke deed of trust.</p> <p>6. Deeds — Validity—Effect upon Execution.</p> <p>A deed to be valid should take effect in interest upon its execution, though the right of possession or enjoyment may not take place until the happening of a certain event.</p> <p>7. Wills — Deed or Will — Future Interests.</p> <p>Where interests created do not arise until death of donor or some other future time, the instrument cannot be a deed, although so denominated and accompanied by words of immediate grant, a sufficient consideration, and formal delivery.</p> <p>8. Deeds — Estates Which May Be Created.</p> <p>There is no natural right to create artificial and technical estates with limitations over, nor has the remainderman any more right to succeed to the possession of property under such deeds than legatees or devisees under a will.</p> <p>9. Deeds — Construction'—Eee.</p> <p>It is the policy of the law to encourage making conveyances in fee.</p> <p>10. Deeds — Legality.</p> <p>It is as lawful to create an estate for life with remainder after death of the grantor as it is to convey in fee.</p> <p>11. Taxation — “Transfer Tax” — Nature.</p> <p>The “transfer tax,” imposed by inheritance-tax law, is in the nature of an excise tax, to wit, on the transfer of property.</p> <p>12. Taxation — Transfer Tax — Rights and Obligations.</p> <p>The rights and obligations of all parties in regard to payment of inheritance tax under inheritance-tax law are determinable as of the time of the death of the decedent.</p> <p>13. Taxation — Inheritance Tax — Statute—Operation.</p> <p>Transfer of stock by deed of trust Intended to take effect in possession or enjoyment at or after grantor’s death was taxable under the inheritance-tax law, although such law had not taken effect at time of execution of deed; the property having vested at time of death and not at the date of the execution of the deed. ■</p> <p>ON REHEARING</p> <p>3. Taxation — Transfer Tax Not Interference with Comity between States.</p> <p>Where the devolution of title to property involves a succession or inheritance tax, it is governed and controlled by the laws of the forum imposing the tax, if the transfer sought to be taxed is within the jurisdiction of the tax authorities, and imposition of such tax cannot be denied, on the ground that it would interfere with comity between states, for it is a well-settled rule that no foreign law will be enforced in a sovereign state, if to enforce it will contravene the express statute law or expressed public policy of the forum or is injurious to its interests.</p> <p>2, Taxation — Tax on Transfer in Contemplation of Death.</p> <p>Whether a transfer by way of trust is one intended to take effect at or after the grantor’s death does not depend on whether the trust is revocable, but the test is whether the property passes with all attributes of ownership, independently of the death of the transferor. [Note — On writ of error to United States Supreme Court.]</p>

Averill, Judge. Action by Arna Fecht Robertson against James Cuthbert Robertson. Judgment for defendant, and plaintiff appeals. Defendant’s affirmative plea of an agreement changing contract respecting time and manner of payments is fatally defective in not alleging facts showing a valid binding agreement. The statute requires that a complaint shall contain “a statement of the facts constituting the cause of action in ordinary and concise language.” Rev. Laws, 5038.

Averill, Judge. Action to quiet title to mining claims. Judgment for plaintiffs, and defendant appeals.

F. Lunsford, Judge. Petition for writ of prohibition by the County of Pershing and others against the Sixth Judicial District Court and others, and petition for mandamus by the State of Nevada, on the relation, etc., against Tom P. Ebert and others and suit by Zoe Palmer Oden against John I. Peterson and others, resulting in an injunctive order, from which defendants appeal.

Moran, Judge. Action by W. H. Campbell against Joe Vanetti and another. Judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Bartlett, Judge. Action by É. J. Haug against the Southern Pacific Company. • Judgment for plaintiff, and defendant appeals. Coleman, C. J. dissenting. While a common carrier cannot by contract avoid its liability for negligence, its liability can be fixed and limited where, in view of a consideration such' as a lower freight rate, a valuation is placed by the shipper on the goods, such valuation being placed for the purpose of securing such lower rate.

Bartlett, Judge. In the Matter of the Estate of Stewart McKay. Petition for distribution by James A. Fraser and others, executors, was opposed by Bertha Laughton, and from an adverse judgment she appeals.

Original proceeding in certiorari by the State of Nevada, on the relation of Anthony Jurich, against C. J. McFadden, Judge of the Ninth Judicial District Court of the State of Nevada, in and for White Pine County. On motion to quash writ. The judgment of the lower court is in excess of jurisdiction and a proper subject for the writ of certiorari.

Original proceeding in mandamus by the State of Nevada, on the relation of Lester D. Summer field, as District Attorney of Washoe County, Nevada, against Thomas F. Moran, as one of the Judges of the Second Judicial District Court of the State of Nevada, in and , for the County of Washoe. The court was without authority to suspend sentence. The court acted under and by virtue of section 7259 of Revised Laws of 1912.

Original proceeding in certiorari by J. B. Dixon against the Second Judicial District Court of the State of Nevada, in and for the County of Washoe. In certiorari there are no formal pleadings on the part of respondent. In some jurisdictions the respondent is termed the defendant. The return takes the place of an answer in the ordinary action, and is sometimes designated as such. 2 Spelling, Extr. Rem., sec. 2005.

<p>1. Husband and Wire — Desertion—Nonsupport—Prosecution— Venue.</p> <p>Prosecution of husband for desertion and nonsupport of wife and child under Act Pa. March 13, 1903 (P. L. 26), need not be instituted at place of his residence, or county in which offense is alleged to have been committed, but may be instituted wherever relief may be needed; such statute, in view of section 2, and in view of act April 13, 1867 (P. L. 78), to which it is supplementary, being remedial as well as penal, with purpose of affording relief to dependent wives and children.</p>

Bartlett, Judge. Action by Peter Escalle against Frank Mark, also known as Frank Marks. From a judgment for plaintiff and an order denying a new trial, defendant appeals. The agreement violates the bulk-sales law (Rev. Laws, 3908, 3909, 3911), is in direct violation of its provisions, and unenforceable either in law or equity.

Emmett Walsh, Judge. Action by John Connolly against John Salsberry and the Kawich Cattle Company. From an order denying change of venue, defendants appeal. ' The lower court was in error in refusing to remove the case to the county where the partnership realty was situated, and where both defendants resided at the commencement of the action. Rev. Laws, 5011, 5014, 5015; Falls Co. v. Brower, 11 S. E. 313.

Moran, Judge. Action by the Reno Electrical Works against the U. S. Fidelity & Guaranty Company. From a judgment for plaintiff, defendant appeals. The findings and judgment are not sustained by the pleadings. It is affirmatively shown by the complaint that the alleged contract purports to be between Reno Electric Works and Caldwell & Son, while plaintiff sues under the name of Reno Electrical Works.

<p>1. Licenses — City Occupation Tax.</p> <p>An admission to tlie bar of a state is a vested and valuable right, but subject to taxation, including a city occupation tax.</p> <p>2. Licenses — Occupation Tax — Uniformity—-Attorneys.</p> <p>A city ordinance, imposing a tax upon the occupation of attorney at law, held, not in violation of Const, art. 10, sec. 1, providing for an equal and uniform rate of taxation.</p> <p>3. Licenses — License Tax on Occupation — Constitutionality.</p> <p>The imposition of a license tax upon an occupation is not illegal, because not expressly authorized by the state constitution, but is permissible, unless prohibited thereby.</p> <p>4. Habeas Corpus — Hearing on Petition.</p> <p>On an original petition for habeas corpus by an attorney at law, convicted on failure to pay occupation tax, petitioner cannot be permitted to show that the facts proven on the trial at which he was convicted were not sufficient to constitute the crime charged.</p> <p>5. Habeas Corpus — Original Petition — Hearing.</p> <p>In an original application for habeas corpus by one convicted of violation of an occupation-tax law, the court cannot consider the abuse of the lower court’s discretion in refusing to grant a continuance of the trial in which the petitioner was convicted, or an objection to evidence as incompetent or the exclusion of evidence offered in petitioner’s behalf.</p>

C. Stoddard, Judge. Action by Pietro Cassinelli against the Humphrey Supply Company. Judgment for defendant, and plaintiff appeals. There was a bona-fide sale of specified and ascertained property, though the quantity by which the whole purchase price was to be ascertained was not determined.

Barlett, Judge. In the Matter of the Estate of Charles F. Forney, Deceased. From the decree of distribution, and an order denying a motion for a new trial, the administrator and the State appeal. Sanders, J., dissenting. Under the law of California, decedent at no time occupied the legal status which enabled him by mere declarations and conduct to adopt claimant. Decedent was not a man of family, and had no wife nor family home.

Original proceeding. Application of Louis Pierotti for a writ of habeas corpus. Sections 6494 and 6495 of the Revised Laws.do not embrace or include the device or slot machine mentioned in the complaint. The acts and things which petitioner is charged with having committed are not prohibited under the laws of the State of Nevada, but are specifically excluded from the operation of the law denouncing and making criminal the use of slot machines. Stats. 1915, p. 462.

<p>1. Frauds, Statute of — -Part Performance Has No Application to Contract Not To Be Performed within a Year.</p> <p>A contract not to be performed within one year is void (Rev. Laws, 1075), notwithstanding part performance; the doctrine of part performance having no application to such contract, and the statute being aimed exclusively at the time of performance, and not the subject-matter.</p> <p>2. Frauds, Statute of — Part Performance Takes Land Contracts Out of the Statute.</p> <p>Part performance takes land contract out of statute of frauds when not to enforce the contract would result in a fraud being perpetrated upon a party who has partially performed.</p> <p>3'. Frauds. Statute of — Lessor of Horses and Teams Not Estopped to Show Invalidity of Contract.</p> <p>"Where lessees hired horses to plow and seed land, alter lessor had refused to furnish horses, and without being misled by any act or acts on part of lessor, lessor is not estopped from setting up invalidity of its parol contract to furnish horses under statute of frauds in lessees’ action for damages for breach thereof.</p> <p>ON PETITION FOR REHEARING</p> <p>1. Frauds, Statute of — Estoppel to Set Up Statute to Prevent Perpetration of a Fraud.</p> <p>In an action for a breach of an oral contract by which lessor was to furnish lessee with horses for seeding and harvesting a-crop, whatever sum the plaintiffs spent in securing horses and operating the farm did not induce a change of position of plaintiffs, but was the result of a change of position, so that the doctrine of estoppel would not apply to prevent the defendant lessor from setting up the invalidity of the agreement under the statute of frauds, on the ground that the plea of the statute would work a fraud.</p> <p>2. Appeal and Error — Raising Defenses Not Made in Trial . Court.</p> <p>Where, in an action for breach by lessor of his oral contract to furnish horses for making a crop, the matter of estoppel to set up the invalidity of the oral agreement under the statute of frauds because of the changed position of plaintiff was not a matter of evidence or contest at the trial, it cannot be relied on, on appeal.</p> <p>3. Frauds, Statute of — Changed Position of Plaintiff Insufficient to Estop Defendant from Pleading Statute.</p> <p>In lessees’ action against lessor for breach of an oral contract to furnish horses to plant and harvest a crop, evidence of lessees’ changed position in accepting lease and oral agreement is insufficient to show the working of a fraud, and therebjr estop lessor from setting up the invalidity of the oral contract under the statute of frauds, where there was no evidence that the plaintiff's could not obtain the identical employment they left to accept the lease and oral contract.</p>

C. Hart, Judge. Suit by May A. Adams and others against Ella E. Wagoner and others. From a judgment for plaintiffs, and from an order denying a motion for new trial, defendants appeal. In an attempt to defeat a deed with parol evidence, or to establish a trust with parol evidence, the evidence must be clear and attended with no uncertainties, and even then must be received with great caution.

Emmett Walsh, Judge. Action by Fred H. Nielsen against Nellie Richardson Rebard, as administratrix of the estate of Frank P. Richardson, deceased. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. The amended complaint does not state a cause of action, the decision is contrary to law and the evidence, and the pleadings and the findings do not justify or support the judgment. The action is evidently not intended to be one of trover.

Mor an, Judge. Action by J. B. Dixon against A. Grant Miller, From a judgment for defendant, plaintiff appeals. The making of the note was presumptively within the knowledge of the defendant. 31 Cyc. 199; 1 Ency. PI. & Pr. 811, fet seq.; Spencer v. Levy, 173 S. W. 550; Brown v. Martin, 23 Cal. App. 736; Allen v. Surety Co., 129 N. Y. Supp. 228; Raymond v. Johnson, 17 Wash. 232; Howes v. Corti B. Co., 135 N. Y. Supp. 562.

<p>1. Prohibition — Questions of Public Import Reviewable on Merits.</p> <p>. On application for prohibition, the supreme court may consider the questions involved on their merits, where the "public is vitally concerned and long and expensive litigation will thereby be avoided.</p> <p>2. Statutes — Construed in Light of Pacts.</p> <p>A legislative enactment must he construed in the light of known facts suggested by the act itself.</p> <p>3. Taxation — Tax Must Be for Public Purpose.</p> <p>There can lie no lawful tax which is not laid for a public purpose.</p> <p>4. Counties — Bonds To Be Paid by Taxation Illegal Unless for Public Purpose.</p> <p>Where county and municipal bonds are issued whose payment is provided for solely by taxation, their validity depends upon the question whether the purposes to which the proceeds of the bonds are to be applied arc public purposes.</p> <p>5. Counties — Bonds to Raise Money to Loan to Land Owners Illegal.</p> <p>Stats. 3919, c. 204, authorizing the county of Churchill to issue bonds to establish a fund to loan to private land owners for the purpose of reclaiming arid lands, is invalid, in that the method provided is ineffective and would result in taxation for private purposes.</p> <p>0. Taxation — Restrictions on Power of State to Tax.</p> <p>The only restriction on the power of the state to tax property within its jurisdiction and' to direct the purposes for which taxes shall be raised is that the assessment shall be uniform and equal and tbe purpose.a public one.</p> <p>7. Statutes — Legislative and Judicial Powers.</p> <p>So long as the legislature acts within the powers given it, the courts cannot interfere.</p> <p>S. Taxation — Tax for Public Improvement Must Be Effective.</p> <p>A tax for a public improvement to be legal must be effective, and a tax designed to accomplish a vast reclamation project must rest upon some safer hypothesis than the volition and individual energy of those upon whom is the duty to make the law authorizing the tax effective.</p> <p>9. Statutes — Scope of Powers.</p> <p>The courts cannot hold a statute valid because it is sanctioned by the legislature and public opinion, where the statute is not within scope of legitimate legislation.</p>

Moran, Judge. Action by Paul Garson and others against the Steamboat Canal Company and others. From a judgment granting a temporary injunction, the named defendant appeals. Damages that plaintiffs may sustain by the enforcement of the rate in question are such that they can be easily ascertained by a court and jury. The order granting an injunction pendente lite should be reversed and set aside.

Proceeding in prohibition by the State of Nevada, on the-relation of J. G. Scrugham, as State Engineer, against the District Court of the Sixth Judicial District of the State of Nevada, in and for Humboldt County, and Honorable J. A. Callahan, District Judge thereof, and Honorable C. J. McFadden, Acting District Judge thereof.

Ducker, Judge. Action by M. Reinhart, administrator with the will annexed of Domingo Bengoa, deceased, against Martin Echave, resulting in verdict for defendant. From an order denying plaintiff a new trial, he appeals. Statement of Facts This action was commenced by Domingo Bengoa against Martin Echave to recover judgment for the sum of $4,000 upon a promissory note. The paper was originally a skeleton note, and is certified with the record for our inspection.

<p>Original proceeding. Application for mandamus by C. E. Roberts and others against the Second Judicial District Court of the State of Nevada in and for the County of Washoe, Department 2 thereof, Hon. Thomas F. Moran, Acting Judge therein, and the Scheeline Banking and Trust Company.</p> <p>Notice to quit must not be conditional, but absolute and positive. Underhill, Landlord and Tenant, vol. 1, secs. 118, 119. It must be explicit and positive. Taylor, Landlord and Tenant, sec. 483. Statutory notice is a condition precedent. Lacrabere v. Wise, 141 Cal. 555. Plaintiff must bring himself clearly within the detainer act. Opera House v. Bert, 52 Cal. 471. Service of notice to quit is mandatory. Paul v. Armstrong, 1 Nev. 98. Notice must be absolute. Ayres v. Draper, 11 Mo. 548.</p> <p>Notice to quit is a request from a landlord to his tenant to quit the premises leased and give possession to the landlord at a time therein mentioned. The words of the notice must be clear and decisive, without ambiguity or alternative to the tenant. Bouvier’s Law Diet.; Adams on Ejectment, 120-122; Bouvier’s Amer. Law, vol. 1, 2d ed., secs. 1799, 1800.</p> <p>Tenant has a right to stand upon proof of the exact service required by statute. Lowman v. West, 36 Pac. 258. Where a party brings an action for the possession of property which he claims as being unlawfully detained from him, he must allege and prove not only that he has the right of and is entitled to possession, but that such property is being unlawfully detained, after notice to quit has been served as provided by law. Barnes v. Cox, 41 Pac. 557.</p> <p>This is not a proper case for the issuance of a writ of mandamus. Treadway v. Wright, 4 Nev. 119; Breekenridge v. Lamb, 34 Nev. 275. Jurisdiction of the district court is fixed by the constitution. Const. Nev. sec. 6, art. 6. Though the decision of the district court be erroneous, it may not be corrected by writ of mandamus. Floyd v. District Court, 36 Nev. 352.</p> <p>An appeal must be taken within the statutory time. Weinrich v. Porteous, 12 Nev. 102; Reinhart v. Co. D, 23 Nev. 369; Luke v. Coffee, 31 Nev. 165; Candler v. Ditch Co., 28 Nev. 15. This is especially true in regard to actions for forcible entry and detainer. “The law applicable to forcible entry and detainer and appeal therefrom must be rigidly complied with to give the supervising court jurisdiction.” Holman v. Hogg, 83 Mo. App. 370; Purcell v. Merrick, 158 S. W. 478.</p> <p>Respondents did not waive objection that appeal was not taken within the statutory time. Parties cannot even stipulate that appeal was taken in time, where the records show that it was not taken in time. Estate of More, 143 Cal. 493; 2 Hayne, New Trial and Appeal, p. 1084. “The jurisdiction of the district court on appeal in actions of forcible entry and detainer, being derivative only, is not aided by consent of parties.” Babiy v. Musser, 89 N.'W. 742.</p>

Original proceeding. Application of John J. Willaims for a writ of habeas corpus. Petitioner claims the protection of habeas corpus, for the reason that the district court is without jurisdiction, under the facts related and as shown by the record. Ex Parte Dela, 25 Nev. 346; In Re Williams, 116 Cal. 512; Ex Parte Baker, 88 Cal. 84.

Callahan, Judge. Action by William J. Smith against John Lucas and others. From an adverse judgment, M. B. Moore, intervening defendant, appeals. The present case, not involving “error in law occurring at the trial,” does not require any assignment of error. There is no “error” within the statutory limitation of that word. The motion should, therefore, be denied, and the appeal determined upon the merits.

Averill, Judge. Action by T. B. Clarke against Julius Johnson and another. Judgment for the plaintiff as against the defendant Johnson, and against plaintiff in favor of defendant J. G. Crumley, from which and from an order denying a new trial upon defendant Crumley’s cross-action the plaintiff appeals. Statement of Facts This is an action in claim and delivery to recover the possession of two motor trucks.

<p>1. Divorce — Order in Contempt Proceeding Not Modification of Original Decree.</p> <p>An order in a contempt proceeding, providing that a divorced husband pay alimony provided for in original decree or go to jail, was not a modification of the original decree, and it was immaterial that the court had not reserved the right to modify or amend the original decree.</p> <p>2. Constitutional Law — Imprisonment for Failure to Pay Alimony Not Imprisonment for “Debt.”</p> <p>Alimony does not constitute a “debt” within the meaning of Const, art. 1, see. 14, providing that there shall be no imprisonment for debt, a debt in the sense used in the constitution alluding to an obligation growing out of a business transaction, and not to an obligation arising from the existence of the marital status.</p> <p>3. Divorce — Alimony May P>e Granted Wife.</p> <p>The statutes permit the court on granting a divorce to allow alimony to the wife.</p>

Callahan, Judge. Action by the Clover Valley Land and Stock Company against S. G. Lamb and others. From judgment for plaintiff, defendants appeal. Sanders, J., dissenting. A “decree and order of sale” is “process,” within the meaning of the statutes.

Langan, Judge. Controversy between the State of Nevada, on the relation of John Sparks and others and the State Bank and Trust Company, a corporation and others, submitted on an agreed statement of facts. From the decision rendered, Frank L. Wildes, as receiver of the State Bank and Trust Company, appeals. A law can be given no retrospective or retroactive operation, unless by the language of the statute it is dearly made to have such effect.

Original proceeding. Petition for certiorari by the Nevada Lincoln Mining Company against the District Court of the Eighth Judicial District of the State of Nevada, Hon. T. C. Hart, District Judge of the district and Judge of such court, and Frank Wilson. The certificate of the clerk purporting to give his version of counsel’s testimony must be ignored as gratuitous. Mechler v. Fialk, 82 Atl. 830; Cook v. Court, 59 South. 483.

<p>1. Waters and Watercourses — Determination oe Rights — Orders Appealable.</p> <p>An order of determination of the state engineer in a proceeding to determine the relative rights of persons to water is not appealable, the only appeal allowable, under Stats. 1915, c. 253, sec. 0, in such a case being from the decree of the court affirming or modifying such order.</p> <p>2. Waters and Watercourses — Determination oe Rights — Dismissal oe Appeal.</p> <p>Assuming that the rules prescribed by civil practice act, as amended by Stats. 1915, c. 142, apply to the hearing of an issue raised by a notice of exceptions to an order of determination of the state engineer duly filed with the clerk under Stats. 1915, e. 253, sec. 6, in a proceeding to determine relative rights to water, it does not follow that the failure to preserve errors by a bill of exceptions must result in the dismissal of an appeal from a decree affirming the order of determination of the engineer, although such failure might result in an affirmance of the decree.</p> <p>3. Appeal and Error — Notice oe Undertaking — Dismissal oe Appeal.</p> <p>Since Rev. Laws, 5330, does not require that an undertaking on appeal be served on the adverse party, the supreme court is not authorized to dismiss an appeal for want of service.</p> <p>4. Appeal and Error — Lack oe Motion eor New Trial — Grounds for Dismissal oe Appeal.</p> <p>Since the supreme court, on appeal from a decree, can look to the judgment roll to ascertain whether any error appears, an appeal will not be dismissed because it appears from the record that it is based on the ground that the evidence Is insufficient to justify the decision of the court,' and that no motion for a new trial was made and determined before the appeal was taken, under Rev. Laws, 5328.</p>

Langan, Judge. In the Matter of the Determination of the Relative Rights to the Waters of Barber Creek and its Tributaries in Douglas County, between Eugene Scossa and Clarissa Church and the Barber Estate. From a decree affirming the determination of the State Engineer, Scossa appeals. Coleman, C. J., dissenting. As a matter of law, the contestant is entitled to all the water developed and conserved by him and his predecessors.

Bartlett, Judge. Action by J. B. Dixon against the City of Reno and others. Judgment for defendants, and plaintiff appeals. “Normally any and every natural person, including legislators, and irrespective of his public or private character or his personal status or personal relationship, is liable in an action for false imprisonment whenever such person appears to have unlawfully detained another.” 19 Cyc. 832, 333, 335, 336.

Callahan, Judge. Action by R. S. Page and another against Mark Walser and another. From an order denying motion for change of place of trial, defendants appeal.

<p>1. Appeal and Eeeoe — Exceptions Must Be Taken at Time Ruling Is Made to Entitle Party to Review.</p> <p>When an exception is necessary to a ruling of the court, it must be taken when the ruling is made, unless by permission of the, court it is allowed to be taken at a later time.</p> <p>2. Appeal and Eeeoe — Order Settling Bill oe Exceptions Not Order Allowing Exceptions To Be Taken.</p> <p>An order of the court settling a bill of exceptions is in no sense an order allowing exceptions to be taken at that time.</p> <p>3. Appeal and Error — Bill oe Exceptions Not Setting Out Matter Ruled on Insueeicient.</p> <p>A bill of exceptions not setting out the matter on which the ruling was made is insufficient; a mere reference to other parts of the transcript being insufficient.</p> <p>4. Courts — District Court I-Ias Jurisdiction oe Suit in Inter-pleader Involving Less than $300.</p> <p>Under Civ. Prac. Act, see. 63 (Rev. Laws, 5005), the district court'has jurisdiction of an action in interpleader, although the amount involved is less than $300, such suit being equitable, and district courts having original jurisdiction in all chancery cases.</p> <p>5. Interpleader — Plaintiee Entitled to Costs Out oe Fund Deposited.</p> <p>In an action in interpleader under Civ. Prac. Act, sec 63 (Rev. Laws, 5005), the plaintiff, if the interpleader is granted, is entitled to his costs out of the fund deposited in court, to be ultimately paid by the unsuccessful party, and the defendant not in fault is entitled to a decree against the other defendant for the costs so taken out of the fund, as well as his own costs.</p> <p>6. Interpleader — Plaintiee Not Entitled to Attorney Fee as Costs.</p> <p>The plaintiff in an action in interpleader, if the interpleader is granted, is not entitled to an attorney fee to be paid by the-losing party; the allowance of an attorney fee being a subject of statutory regulation.</p> <p>7. Appeal and Error — Dependant Cannot Complain oe Errors Aeeeoting Codeeendant Only.</p> <p>A defendant appellant cannot on appeal complain of an error affecting a codefendant only.</p>

Moran, Judge. Action by Verd Kingsbury against John V. Copren, individually and as administrator of the estate of Thomas J. Higgins, deceased. From a judgment for the defendant on demurrer to the complaint, plaintiff appeals. There is a single cause of action; a single person defendant, though sued in two capacities — in his individual capacity and in his representative capacity.