Volume 44 — Nevada Reports

<p>1. Clerks of Courts — Relative to Pees, Held There Was No “Special Proceeding” in Supreme Court.</p> <p>Within Stats. 1917, c. 26, providing that when an appeal is taken to the supreme court, or when any siiecial proceeding is brought therein, the party'appealing or bringing such proceeding shall pay the clerk $25, which shall be in full for all the clerk’s fees, there is no special proceeding, but only an appeal, though before the filing with the clerk of the transcript of the record on appeal from denial of change of venue, but within the thirty days from the perfecting of the appeal allowed by supreme court rule 2 for such filing, respondents under rule 23 gave and filed notice that they would call up the appeal for hearing.</p>

Ducker, Judge. Action by Elizabeth A. Rodgers, executrix of the last will and testament of Arthur Rodgers, deceased, against L. N. Carpenter. In the course of the trial, Millie L. Rodgers, sometimes known as Malvine Rodgers, was substituted as plaintiff. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. The burden of proving adverse possession is always upon the person who relies upon it.

C. Hart, Judge. Action by A. Baumann and wife against the Nevada Colony Corporation. From an order denying defendant’s motion to vacate the default and judgment entered against it, defendant appeals.

Original proceeding. In the matter of the application of Ida May McGee for a writ of habeas corpus. From an adverse judgment and order, petitioner appeals. The district court of Lander County has no jurisdiction to proceed with the trial of defendant, for the reason that the offense charged, if it be an offense, is but a misdemeanor, the district court having no jurisdiction in misdemeanor cases.

Original proceeding. In the matter of the application of Y. Arascada for writ of habeas corpus. The district court had no jurisdiction under the prohibition act to try petitioner for the offense charged, and therefore its judgment is void. Under the constitution, the legislature had no power to place concurrent jurisdiction in the justice court and the district court over an offense arising under the act.

<p>Original proceeding. Application for a writ of prohibition by Y. Arascada against the Sixth Judicial District Court of the State of Nevada, in and for the County of Humboldt, and Hon. James A. Callahan, Judge thereof, and W. H. Springer and George Brady.</p> <p>An indictment charging two crimes, in the presence of a demurrer, is in no better position in resisting a writ of prohibition than is a civil complaint which unites two or more causes of action forbidden by the law. And more especially when the indictment and its duplicitous character cannot be reviewed by appeal. Where a statute makes a specific direction and prohibits the institution of a proceeding in other than the designated form, refusal of the trial court to observe the inhibitions is to ignore a jurisdictional requisite, and such may be the subject of prohibition. Walser v. Moran, 42 Nev. 111.</p> <p>When the lower court has misconceived the law, the writ will issue. Floyd v. District Court, 21 Nev. 409; Roberts v. District Court, 43 Nev. 332.</p> <p>The writ of prohibition will not lie to correct errors of law, where the court has jurisdiction to pass upon and decide the legal questions. Nevada Central v. District Court, 21 Nev. 409; State v. Frazier, 167 N. W. 510; Rankin v. Superior Court, 106 Pac. 718; Corley v. Adair, 134 Pac. 835; State v. Court, 120 N. E. 335.</p> <p>Where the court has jurisdiction of the subject-matter, it has jurisdiction to pass upon the sufficiency of the indictment or complaint, and prohibition will not lie to review its decision. Bailey, Habeas Corpus, sec. 356; State-v. Evans, 60 N. W. 433; State v. Medler, 131 Pac. 976; Kitts v. Superior Court, 90 Pac. 977; Ex Parte Reuf, 89 Pac. 605; Borello v. Superior Court, 96 Pac. 404; Goldsmith v. Owen, 95 Ky. 420.</p> <p>The indictment was not duplicitous, when measured by the rules applicable to indictments. “If the acts charged form component parts of or represent preliminary stages in a single transaction, they may be charged together, and the same is true of acts entering into a single and continuous transaction.” 22 Cyc. 378, 379; Joyce on Indictments, sec. 404; Commonwealth v. Miller, 107 Pa. St. 276; Bradley v. State, 20 Fla. 738; State v. Climie, 12 N. D. 33; State v. Meada, 56 Kan. 690. “An indictment is not double because it charges several related acts, all of which enter into and constitute a single offense, although such acts may in themselves constitute distinct offenses.” 22 Cyc. 385; 14 R. C. L. 195.</p>

Original proceeding. In the matter of the application of G. Cecchettini for a writ of prohibition. Section 28 of the prohibition act, under which it is intended to try petitioner, is null and void and of no effect, its provisions being in conflict with section 6, article 6, Constitution of Nevada, and in contravention of section 8, article 6, thereof.

Moran, Judge. Action for divorce by Phoebe Boswell Clark against Allen L. Clark. Decree for plaintiff, and defendant appeals. Nothing short of an actual marriage, as distinguished from the mere presumption which arises from cohabitation and repute following the removal of an impediment, would suffice to support this action. Under the pleadings, no such contract could properly be proved.

Moran, Judge. Action for divorce by Phoebe Boswell Clark against Allen L. Clark. From so much of the decree of divorce as allowed plaintiff monthly alimony instead of a share of defendant’s property as claimed by her, plaintiff appeals. The court erred in refusing to award plaintiff one-half of the separate property of the husband.

<p>1. Pleading — Amendment Rests in Sound Discretion oe Court.</p> <p>An amendment at any stage of the proceeding rests in the sound discretion of the court, due regard having been given to surrounding circumstances of case occasioning necessity for amendment.</p> <p>2. Pleading — Amendments Favored.</p> <p>Amendments to pleadings are favored, and should be liberally allowed in furtherance of justice.</p> <p>3. Pleading — Permission to Amend Held Not Injurious to Defendant as Taking I-Iim by Surprise.</p> <p>Action of trial court in permitting plaintiff to amend complaint did not injure defendant by taking him by surprise, where court gave defendant continuance for six days, and on such date again continued case for four more days, thus giving defendant ten days in which to plead to amended complaint and produce further testimony.</p> <p>4. Pleading — Allowance of Amendment Within Discretion of Court, and Terms Need Not Be Required.</p> <p>Terms on which amendment will be allowed are in discretion of trial court, and in exercise of such discretion terms may not be required as condition of leave to amend.</p> <p>5. Brokers — To Earn Commission, Must Produce Buyer Within Specified Time Unless Prevented by Fraud of Principal.</p> <p>Before a broker can be said to have earned his commission, he must produce a buyer within time specified in terms of agency, if time is limited, ready, willing, and able to purchase at price designated by principal; but, if principal by fraud defeats broker’s efforts, case does not come within such rule.</p> <p>6. Brokers — Whether Price Would Have Been Accepted by Purchaser a Jury Question.</p> <p>In action for commission on sale by broker who held option on property, question whether broker’s price would have been accepted by purchasers whom he claimed to have procured, and who subsequently purchased direct from his principal, held for jury.</p> <p>7. Brokers — Entitled to Commission on Sale Made by Principal at Reduced Price.</p> <p>A broker who is the procuring cause of the sale is entitled to commission, though the final negotiations are conducted by the owner who, in order to make the sale, accepts a price less than that at which the broker was authorized to sell.</p> <p>8. Brokers — Evidence Held to Show Broker Entitled to Commissions, Though Final Negotiations Conducted by Owner.</p> <p>In action for commissions on sale of ranch by broker holding option thereon, sale having been consummated by owner after expiration of option, as broker claimed, to purchasers procured by him, evidence held to support broker’s claim and justify verdict for him.</p> <p>9.Trial — Court Should State Issues Clearly and Accurately, Though Not Necessarily in One Instruction.</p> <p>When trial court undertakes to state issues in instruction, it should do so clearly, concisely, and accurately, though all need not be included in one instruction, if instructions as a whole fairly and fully present issues.</p> <p>10. Appeal and Error — Defects in Instruction Failing to State Issues Completely Harmless.</p> <p>In broker’s action for commissions on sale of ranch, defects in plaintiff’s instruction undertaking to state issues, but not doing so completely, held harmless to defendant in view of pleadings clearly stating issues and read to jury.</p> <p>11. Appeal and Error — Harmless Error Disregarded by Supreme Court.</p> <p>The supreme court will disregard any error that does not affect a substantial right.</p> <p>12. Trial — Instruction Not Erroneous as Inapplicable to Case in View of Other Instructions.</p> <p>In broker’s action for commissions, instruction that in case of agreement for sale agent is entitled to recompense if he succeeds in bringing owner and buyer together, though owner dealing personally with buyer agrees to accept less sum than mentioned to agent, being correct in abstract, when considered in connection with charge on question of owner’s fraud oii plaintiff broker, held not improperly given on ground contract between parties governs broker’s compensation unless defendant owner prevented him from complying with it, and such prevention was not submitted to jury.</p>

Original proceeding. Application for writ of mandamus by C. A. Norcross against George Cole, State Controller. The farm bureau act (Stats. 1919, p. 387) expressly provides that an appropriation is annually made which shall equal a certain ascertainable sum, and which shall not exceed a fixed minimum. Nothing further is necessary to constitute a valid appropriation.

<p>ON REHEARING</p> <p>1. Costs — Offer op Judgment as to Undisputed Part op Claim Makes Cost Dependent upon Result op Disputed Part.</p> <p>When plaintiff unites in the same action a claim that is not disputed with one that is, defendant may remove from the controversy the undisputed claim by offer of judgment, as authorized by Comp. Laws, 3470, and thus make the subsequent costs of the litigation depend upon the result of the litigation in regard to the disputed claim.</p> <p>2. Costs — Opper op Judgment-Need Not Include Costs.</p> <p>Offer of judgment under Comp. Laws, 3470, need not include costs.</p> <p>3. Costs — Opper op Judgment Does Not Affect Costs Accruing Prior to Offer.</p> <p>Although plaintiff failed to obtain a more favorable judgment than offered by defendant, plaintiff was entitled to accrued costs up to the time of the making of the offer.</p> <p>4. Appeal and Error- — Whether Judgment “More Favorable” Than That Offered, as Affecting Costs, Within Discretionary Determination of Court of Jurisdiction.</p> <p>Whether judgment recovered was “more favorable” than judgment offered by defendant, within the meaning of Comp. Laws, 3470, as to offer of judgment as affecting costs is to be determined by the tribunal having jurisdiction of the matter, and the exercise of the district court’s sound discretion in this respect will not be disturbed, although the supreme court is not without power to correct abuse thereof.</p>

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 or defendant. In some jurisdictions the respondent is termed the defendant. The return takes the place of an answer in an ordinary action, and is sometimes*designated as such. 2 Spelling, Extr. Rem., sec. 2005.

<p>1. Mandamus — Will Not Lie to Compel Public Service Commission to Annul Order Discontinuing Street-Car Service.</p> <p>Where the public service commission has at the instance of a traction company made an order allowing it to permanently discontinue service over certain streets, mandamus will not lie to compel the commission to annul such order, in view of Rev. Laws, 5695, providing that the writ may be issued to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station ; there having been no refusal on part of commission to perform any duty conferred upon it.</p> <p>2. Mandamus — Writ Will Not Lie to Compel Traction Company to Continue Service Not Discontinued.</p> <p>Where the public service commission has issued an order allowing a traction conmany to discontinue service over certain streets, mandamus'.' vill not lie against the company to compel it to continue service, where the petition fails to show that service has ’been discontinued, notwithstanding that it applied to the commission for the order of discontinuance.</p> <p>3. Mandamus — Writ Wiix Not Be Granted in Anticipation oe Supposed Omission oe Duty.</p> <p>'Mandamus Is never granted in anticipation of a supposed omission of duty,' however strong the presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives.</p> <p>4. Mandamus — Duty to Continue Street-Car Service Nor Considered, in Advance oe Actual Discontinuance.</p> <p>In proceedings for mandamus to compel the public service commission .to annul an order to allow a traction company to discontinue service over certain streets, and to compel the traction company to continue such service, whether it is the traction company's legal duty to continue service, cannot be determined in advance of actual discontinuance of service.</p>

Original proceeding. Application for writ of mandamus by the State of Nevada on the relation of John P. Shaughnessy and others, members of and constituting the Public Service Commission of the State of Nevada, against Emmet D. Boyle, Governor of the State of Nevada and others, members of and constituting the State Board of Examiners of the State of Nevada, and others.

C. Hart, Judge. Action by George F. King against D. P. Randall and others. Judgment for defendants, and plaintiff appeals. The lower court fell into the error of considering the indemnity contract as being founded upon and dependent for its validity upon the contract for rebuilding the courthouse which was entered into between the county commissioners and plaintiff.

Original proceeding. Application for writ of habeas corpus by Lee Goddard. The sheep commission law (Stats. 1919, c. 82), under which petitioner has been arrested, is unconstitutional because it is contrary to and in violation of section 8, article 1, Constitution of the United States, which provides that Congress shall have power to regulate commerce with foreign nations and among the several states.

<p>1. Justices of the Peace — Statute Held to Require Justice to Make Certificate for Service of Summons by Publication.</p> <p>In view of Civil Practice Act, sec. 80, as amended by Stats. 1913, p. 109, and section 790, as amended by Stats. 1913, p. 300, relating to the service of summons, a justice of the peace is under duty of making the certificate required for a proper service of summons by publication in justice court cases.</p> <p>2. Justices of the Peace — Where Copy of Complaint Not Certified, Justice Acquires No Jurisdiction.</p> <p>Where plaintiff’s attorney, in a suit brought before a justice of the peace, has failed to certify the copy of the complaint accompanying the summons, or cause it to be certified by the justice, the justice court is without jurisdiction to enter judgment against such party.</p> <p>3. Justices of the Peace — Statutes. Prescribing Mode of Service To Be Strictly Pursued.</p> <p>Statutory provisions, prescribing the manner by which a resident defendant shall be notified that an action has been commenced against him in the justice court, to the end that jurisdiction of his person may be obtained, are mandatory, and must be strictly pursued, and failure to observe them in any material manner will prevent the court issuing summons from obtaining jurisdiction of the defendant’s person.</p> <p>4. Justices of the Peace — General Appearance by Demurrer After Default Not Waiver of Defects in Service.</p> <p>While a general appearance by demurrer prevents the party appearing from subsequently complaining of want of proper service of summons, where a demurrer was presented and filed after the time to answer in a justice court had expired, and after default and judgment had been duly entered, such appearance did not constitute a waiver of objection to the sufficiency of the service, since the subsequent filing of the demurrer could not operate retrospectively to give life to a void judgment.</p> <p>5. Judgment — Statute Authorizing Relief from Default for Mistake, etc., Held Inapplicable to Judgment Void for Lack of Jurisdiction.</p> <p>Rev. Laws, 5742, empowering the court to relieve a party from a judgment by default because of mistake, inadvertence, surprise, or excusable negligence, held not to apply to a judgment wholly void for lack of jurisdiction of the person of the defendant.</p> <p>6. Judgment — Right to Relief from Void Default Judgment Is Absolute.</p> <p>A party’s right to relief from a judgment wholly void because of lack of jurisdiction of his person is absolute, and not dependent upon a showing of meritorious defense, under Rev. Daws, 5742. .</p> <p>7. Justices of the Peace — That Judgment, Sought To Be Annulled, I-Ias Been Satisfied, No Bar.</p> <p>That a void default judgment, taken in the justice court, has been satisfied and discharged, does not prevent proceedings by certiorari to annul it.</p>

Emmett Walsh, Judge. Action by Marie A. Nichols against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Since the amendment to the interstate commerce act, June 18, 1910 (36 Stats. L. 539), relating to telegraph companies, damages for mental anguish cannot be recovered upon an interstate message.

Moran, Judge. Proceedings in claim and delivery by Joe Azparren against C. P. Ferrel, Sheriff of'Washoe County, Nevada, and others. From a judgment for plaintiff and an order denying new trial, defendants appeal.

Original proceeding. Application of Mike Moriarity for a writ of habeas corpus to secure release from the custody of the sheriff of Nye County, who was holding him under indictment. There has been unnecessary delay by the prosecution in bringing petitioner to trial. The postponement should have been upon the application of one of the parties., and upon affidavit. There could be no presumption that petitioner had made application for a postponement.

<p>Appeal from Sixth Judicial District Court, Humboldt County; James A. Callahan, Judge.</p> <p>Action for divorce by Pearl Greinstein against Mose Greinstein. Judgment decreeing divorce to plaintiff, and requiring defendant to pay alimony and convey certain property to plaintiff, and defendant appeals from that part of the judgment requiring the conveyance of the property.</p> <p>Where the appeal is upon the judgment roll alone, no assignment of errors or bill of exceptions is necessary. Talbot v. Mack, 41 Nev. 245; Miller v. Walser, 42 Nev. 497.</p> <p>There is no authority in the court granting a divorce on the ground of extreme cruelty to make any order disposing of the separate property of the husband, - or any interest therein, even though he be the guilty party, unless the wife has by contract, engagement, or transaction with him acquired such an interest as will give the court jurisdiction to exercise its discretion in the matter. Rev. Laws, 2155, 2189, 5841. If the findings of fact j ustified the lower court in awarding plaintiff an interest in the separate property of the defendant, the award was unjust and unreasonable in view of the condition and value of the estate, the gift of $500, and the monthly alimony decreed. Johnson v. Garner, 288 Fed. 758; Walker v. Walker, 41 Nev. 4; Darrenberger v. Haupt, 10 Nev. 43. “After a divorce granted to plaintiff, the law imposes upon defendant the duty of supporting her according to his ability and condition in life.” Lake v. Bender, 18 Nev. 361. This is all the duty which a man owes to his divorced wife, and no court has a right to compel him to do more. “If, in an action of this character, the statute permits the court to decree to the wife any portion of the husband’s separate property absolutely, it should never be done unless such action is reasonably necessary for the accomplishment of the primary object of the statute — support of the wife and minor children.” Powell v. Campbell, 20 Nev. 232.</p> <p>No errors can be properly considered on this appeal, for the reason that the alleged assignment of errors is not in conformity with the statute. The law provides that the line and page on which the alleged errors may be found must be specified, and in the alleged assignment of errors there is no compliance with this provision. The language of the statute is mandatory. “If the party fails to file such assignment within the time limited, no error shall be considered by the supreme court.” Stats. 1919, p. 55.</p> <p>The verdict of the jury, which was adopted and made a part of the findings, is substantially a finding for the plaintiff on each material issue submitted to the jury and found in the complaint. The allegations of the complaint were all a part and portion of the charge of cruelty and inhuman conduct, which the jury found to be true; and the court, by adopting the verdict, also found the allegations to be true, and was therefore justified in its award of the property to the wife. Rev. •Laws, 5841, 5843. “The two statutes may justly and reasonably, in a proper case, operate without antagonism, and the retention of section 5841 * * * is a statutory recognition of the power of a court of equity * * * to make such division of the property of the parties as their interest therein may appear, having regard to the limitations imposed.” Walker v. Walker, 41 Nev. 4; Wuest v. Wuest, 30 Pac. 886; Powell v. Campbell, 20 Nev. 232; 1 R. C. L. 864, 927; 9 R. C. L. 447; 5 Ann. Cas. 469.</p>

Callahan, Judge. Action by C. L. Tobin against Frank Gartiez and others. From judgment for plaintiff, order denying motion for new trial and order denying motion to strike the cost bill, and order denying motion to strike item from cost bill, defendants appeal. The district court was without j urisdiction, no verified answer raising a question of title to real estate having been filed with the justice of the peace. Rev. Laws, 5721; State v. Justice Court, 29 Nev. 191.

<p>Original proceeding by the Washoe County Bar Association against Robert Scoular, for disbarment.</p>

J. L. Taber, Judge. Action by Carey Van Fleet against James O’Neil. From a judgment for plaintiff defendant appeals; and from an order on motion for a new trial, both parties appeal. The court should have allowed answers to questions on cross-examination as to whether an expert witness agreed with certain decisions determining fees of attorneys in other cases. Pinney v. Cahill, 48 Mich. 584; 3 Jones on Evidence, 579.

Lunsford, Judge. Proceeding in mandamus by the State of Nevada, on the relation of P. C. Fisler and another, against L. E. Glass, as County Clerk of Nye County, and Harry Dunseath. From an order requiring the County Clerk to strike from his files a purported certificate of nomination of Harry Dunseath as independent candidate for office, Dunseath appeals.

C. Hart, Judge. Action for divorce by Wellesca P. Allen against Wilfred P. Allen. Judgment for defendant, and plaintiff appeals. All the allegations of the complaint were clearly and fully established by competent and relevant testimony. Each and all of the assignments of error are based upon objections regularly made in the trial court, whose duty it was to rule upon them.

<p>1. Criminal Law — Justice op the Peace Without Jurisdiction . Over Violation op Prohibition Statutes.</p> <p>A justice of the peace is without jurisdiction to try one accused of violating the prohibition statute and to impose a sentence of fine or imprisonment.</p>

Original application of William H. Sheldon for a writ of habeas corpus. The questions propounded to the plaintiff in the divorce action were gratuitous to the last degree. The oath' administered to her, so far as it went to the jurisdictional question here involved, was administered in an inquiry not authorized by law.

Lunsford, Judge. In the Matter of the Estate of Charles F. Forney, deceased. From decisions of the court concerning compensation, the administrator appeals.

<p>1. Trial — Nonsuit Mat Be Entered When Plaintiff Pails to Prove Sufficient Case for Jury.</p> <p>Under Civil Practice Act, see. 295, a judgment of nonsuit may be,entered by the court, on motion of defendant, when plaintiff fails to prove a sufficient case.</p> <p>2. Trial — On Motion for Nonsuit Court Must Take as Proven All Pacts which Plaintiff’s Evidence Tends to Prove.</p> <p>In considering the granting or refusing of a motion for nonsuit, the court must take as proven every fact which plaintiff’s evidence tends to prove, and which was essential to his recovery, and every inference of fact that can be legitimately drawn therefrom; the plaintiff being given the benefit of all presumptions.</p> <p>3. Negligence — Question eor Court Where Reasonable Men Cannot Dieeer.</p> <p>Where the facts showing a want of ordinary care on the part of the plaintiff are clear and undisputed, and reasonable men cannot differ as to the conclusion, the question of contributory negligence is for the court.</p> <p>4. Railroads — Telegraph Lineman Running Velocipede Against Traefic Movement Held Negligent.</p> <p>An employee of a telegraph company licensed to use a velocipede on a double-track railroad, who knowingly runs against the current of traffic at night, without lights, is guilty of contributory negligence as a matter of law.</p> <p>5. Railroads — Operation oe Switch Engine Backward Without Lights Held Negligence as to Licensee.</p> <p>Por a railroad company which has licensed telegraph employees to operate velocipede on its tracks to operate a switch engine backward without lights on rear of engine is negligence as a matter of law.</p> <p>6. Negligence — Contributory Negligence, ie Proximate Cause oe Injury, Bars Recovery.</p> <p>Before contributory negligence can bar recovery, it must appear that such negligence was a proximate cause of the injury, although it need not be the sole proximate cause.</p> <p>7. Appeal and Error — Determination on Former Appeal Conclusive on Subsequent Trial.</p> <p>A determination on prior appeal that plaintiff’s negligence was a proximate cause of the injury is conclusive on retrial, the facts being the same.</p> <p>8. Railroads — Duty to Licensee Stated.</p> <p>Where a railroad company licensed employees of telegraph company to run velocipedes on its tracks, it merely owed such employees the duty not to wantonly or wilfully injure them or fail to exercise due care to avoid injuries after discovery of danger.</p> <p>9. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE No DEFENSE TO WlLEUL Injury.</p> <p>Contributory negligence is no defense to an action for ' damages for an injury wilfully or wantonly inflicted.</p> <p>10. NEGLIGENCE — “WlLEUL” AND “WANTON” INJURY DISTINGUISHED.</p> <p>To constitute “wilful injury” there must be design, purpose, and intent to inflict the injury; while to constitute “wanton negligence” the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious from his knowledge of surrounding circumstances and existing conditions that his conduct will naturally or probably result in injury.</p> <p>11. Railroads — Operation oe Switch Engine Backwards, Without Rear Lights, Held Not Wilful or Wanton Negligence as to Licensee.</p> <p>A railroad operating a switch engine backwards without a rear light on a dark night is not liable to a telegraph company’s lineman injured when his velocipede collided with the engine, either on the theory of wilful or wanton injury; it appearing that linemen had not before used the velocipedes at night, and that the accident occurred on double tracks where traffic moving in a direction opposite to that of switch engine was on the other track.</p> <p>12. Railroads — Operation oe Switch Engine Without Lights in Violation oe Statute Held Not Wileul and Wanton Negligence as to Licensee.</p> <p>Though the operation of a switch engine backward without rear light was a violation of the headlight law of 1913 (Stats. 1913, e. 32), and so amounted to negligence, it did not constitute wilful and wanton negligence so as to warrant recovery by an employee of a telegraph company who as a mere licensee was riding on the tracks on his velocipede, on a dark night without lights and against the ^movement of traffic on double tracks.</p>

Proceeding in mandamus by the State, on the relation of George C. Hunting, to compel George Brodigan, as Secretary of State, to file a petition whereby it is sought to initiate legislation. The question to be determined is: How many of the qualified voters did the framers of the constitution intend should be required to propose a measure by initiative petition? Const, art. 19, sec. 3.

Moran, Judge. Action for divorce by Lena Lombardi against- Samuel A. Lombardi, resulting in decree for plaintiff, and from order denying defendant husband’s motion for new trial of the issues raised by his cross-complaint respecting the premises of the parties and his property rights therein, he appeals.

C. Hart, Judge. The board of directors of the Walker River Irrigation District procured a judgment approving and confirming the district’s organization proceedings, and subsequently procured a judgment confirming the stéps taken with respect to apportionment of benefits, and from both of these judgments Peter Hendrich, who had not appeared in either proceeding, appeals. The decrees are void.

<p>1. Statutes — Constitutional Provisions as to Title Is to Prevent Trickery or Inattention.</p> <p>The purpose of Const. art. 4, sec. 17, providing that each law shall embrace but one subject and the matters properly connected therewith, which shall be briefly expressed in the title, is to prevent inconsiderate or undesirable legislation through trickery or inattention.</p> <p>2. Statutes — Constitutional Requirement as to Title Liberally Construed.</p> <p>Const, art. '4, sec. 17, requiring each law to embrace but one subject, which shall be briefly expressed in its title, though mandatory, should be liberally construed.</p> <p>3. Statutes — Provision op Prohibition Act I-Ield Within Title.</p> <p>The provision of prohibition act, sec. 7, prohibiting the possession of intoxicating liquors in certain places, including soft-drink parlors, has a legitimate tendency to promote the object of that act to suppress the liquor traffic, so that it is within the title thereof to prohibit the manufacture, sale, keeping for sale, and gift of intoxicating liquors.</p> <p>4. Intoxicating Liquors — Person Making I-Iome in Place Where Possession Is Prohibited Cannot Keep Liquors There.</p> <p>Though the prohibition act does not prevent the keeping of liquors in a home for personal use, a person who makes his home in one of the places in which the possession of liquor is prohibited by section 7 of that act cannot keep liquor therein and thereby avoid the provision of the act.</p>

Action, by J. B. Dixon against the City of Reno and others. Judgment for defendants, and plaintiff appealed, and the cause was affirmed and remanded, with permission to amend, and plaintiff filed his cost bill, which was objected to. by the respondents, and refused by the clerk, and plaintiff appeals.

Callahan, Judge. Emiliano Muñios was convicted of murder in the first degree, and he appeals.

Lunsford, Judge. Action by Al. L. Clark against the London Assurance Corporation. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. The contract requires that proofs shall be furnished, and that they shall be presented within sixty days after a fire. There is no more reason for making the first than the second requirement obligatory, and it will not be contended that proofs can be entirely dispensed with.

Original proceeding in habeas corpus by Joe Jagles and W. E. Varnes for reduction of bail. The amount of bail is clearly excessive. Ex Parte Creed, 149 S. W. 192; Ex Parte Fleming, 149 S. W. 195; Ex Parte Houghton, 97 Pac. 1021. This court has decided that bail such as required in this case is sufficient upon a charge of grand larceny. Ex Parte Douglas, 25 Nev. 425. Upon showing inability to raise amount, bail is reduced in prosecution for murder.

Moran, Judge. ' John Bacha was convicted of obtaining money by false pretenses, and he appeals from the verdict and judgment, and from the order denying his motion for a new trial. The pretenses made by the defendant must be false; he must know such pretenses to be false, and the defendant must make such false pretenses with the express intention, at the time they are made, to defraud.

C. Hart, Judge. Suit by Bertha Johnston and another against Romeo Rosaschi and the Nichol Land and Stock Company. Judgment for plaintiffs, and defendant company appeals. The demurrer to the original complaint and to the amended complaint should have been sustained. There is no allegation that connected appellant with the injury. No action at all can be maintained until notice is given that the instrumentality maintained is a nuisance.

Callahan, Judge. Action by Almeda E. Matt and husband against A. H. Barlow and C. A. Norcross. Judgment for plaintiffs, and defendants appeal. The evidence is insufficient to warrant the judgment, which should be reversed.

<p>1. Husband and Wife — In Tenant’s Action for Improvements on Landlord Wife’s Property, Evidence as to Husband’s Authority Held Admissible.</p> <p>In tenant’s action against landlords, husband and wife, for improvements, the premises being in the wife’s name, evidence held admissible against the objection that defendants were improperly joined, as the wife’s liability might have turned upon her husband’s authority to bind her.</p> <p>2. Landlord and Tenant — Tenant’s Complaint for Value of Improvements Need Not Allege Defendants’ Ownership.</p> <p>In tenant’s action against alleged landlords for improvements, the complaint was not defective in not alleging ownership by defendants of the property, for individuals may be liable for improvements upon property to which they have no title whatsoever.</p> <p>3. Landlord and Tenant — In Tenant’s Action for Improvements, Evidence of Relationship of Parties Held Admissible.</p> <p>In tenant’s action against alleged landlords for improvements, evidence as to the existence of relationship of landlord and tenant between the parties was admissible as tending to corroborate plaintiff’s testimony.</p> <p>4. Husband and Wife — Evidence as to Option Contract for Sale of Land Held Admissible on Question Whether Land Was Community Property.</p> <p>In tenant’s action against landlords, husband and wife, to recover for imiirovements, an option on the property given by the husband, and the defendants’ deed about a year after the improvements, held admissible on the question of whether the property was that of the community or the separate property of the wife.</p> <p>5. Appeal and Error — Presumed Court Made Specifio Findings.</p> <p>Where trial court made no specific findings on a point,, no request having been made for specific findings, supreme court must conclude that the court did in fact so find.</p> <p>G. Husband and Wife — Community Property Presumed to Continue as Such Until Contrary Is Shown.</p> <p>Property or money, once a part of the community, will be presumed to remain such until shown by clear, certain, and convincing proof to have been transmuted into separate property.</p> <p>7. Husband and Wife — Evidence Held Insufficient to Show Property Changed from Community to Wife’s Separate Property.</p> <p>In tenant’s action against landlords, husband and wife, .for improvements, evidence concerning a division of defendants’ property held insufficient to establish that the leased property had been changed from that of the community to that of the wife.</p> <p>8. LANDLORD AND TENANT-EVIDENCE IN TENANT’S ACTION EOE Improvements Held'to Support Finding eor Plaintiff.</p> <p>In tenant’s action for improvements, held that the court’s finding in plaintiff’s favor was, sustained by evidence.</p> <p>9. I-Itjsband and Wipe — Wife Held Proper Party in Action Involving Question as to Whether Property Was Community or Separate Property of Wife.</p> <p>Although the wife is an improper party in suits affecting community property, or rights and liabilities growing out of dealings therewith, where husband and wife took the position that the property in question was the separate property of the wife, she was not an improper party in tenant’s action for improvements on such property.</p> <p>.10. Appeal and Error — Supreme Court May Affirm as to One Defendant and Modify as to Another.</p> <p>Under Rev. Laws, 5066, it is the duty of the supreme court to disregard any error or defect which does not affect the substantial rights of the parties, or either of them, so that the judgment may be modified as to one defendant and affirmed as to the other.</p>

Langan, Judge. Election contest proceedings by W. H. James, Jr., against J. H. Stern. Judgment for contestee, and contestant appeals from the judgment and from the order denying his motion for a new trial. Where a ballot is rendered faulty by reason of the poor quality of paper, pads, or board, the defects may be considered as accidental and will not vitiate the ballot. State v. Sadler, 25 Nev. 189; Dennis v. Caugh-lin, 22 Nev. 456.

Averill, Judge. Action by Phoebe J. Guisti against John Guisti. From a judgment for plaintiff, and from an order denying a new trial, defendant appealed, the judgment and order being reversed, plaintiff applying in the form of a motion for permission to amend her original complaint, and the court allowing and ordering the offered amended complaint to be filed, and from such order defendant appeals.

<p>1. Chattel Mortgages — Contract Held “Conditional Sale” and Not “Chattel Mortgage.”</p> <p>A contract concerning an automobile held a “conditional sale” and not a “chattel mortgage,” the distinguishing feature being the retention of the title to the property in the seller until the full payment of the price, which was valid under uniform sales act, sec. 20, subd. 1, although it contained provision “AH other sums of money payable to you, whether evidenced by note, book account or otherwise, also any judgments which you, your successors or assigns may obtain thereafter shall have been fully paid in money, at which time ownership shall pass to me,” and although seller was empowered to take possession of the property, credit buyer with the fair market value thereof, and hold him for the balance of the purchase price. •</p> <p>2. Teoveb and Conversion — Demand Unnecessary.</p> <p>When conversion is otherwise shown by the evidence, a demand is unnecessary.</p> <p>3. Sales — Taking by Vendee of Cab Rightfully in Possession of Conditional Vendos I-Ield a Conversión.</p> <p>Where seller’s right to take possession of automobile upon default of obligations imposed upon conditional vendee was absolute, the exercise thereof by the vendor made the vendor's possession lawful, and when purchaser subsequently went into the garage of the vendor and, under circumstances tending to show force, resumed possession of the property, his taking it from the lawful possession of the vendor was tortious and amounted to a conversion.</p> <p>4. Execution — Purchase Only Succeeded to Right, Title, and Interest of Judgment Debtor.</p> <p>Where judgment debtor was conditional vendee of an automobile, and had no interest beyond a right to purchase it op. condition, a purchaser under execution succeeded only to his right, title, and interest, and where conditional vendor, by reason of judgment debtor’s failure to keep his contractual obligations, exercised its right to take possession, the judgment debtor’s interest and the title of the purchaser at the execution sale met with a common fate and were extinguished, even though the sheriff and the purchaser at the sale had no hotice of the conditional contract.</p> <p>5. Pboperty — -Possession oe Automobile Presumed to Continue in Defendant.</p> <p>In a claim and delivery action commenced on September (>, where possession was shown to be in defendant on July 1C, and it nowhere appears that he sold the property to any one, continuity of possession of the property by the defendant until the beginning of the action may be presumed.</p> <p>G. Property — Evidence Held Not to Overcome Presumption that ‘Defendant Remained in Possession of Property Until Commencement of Action.</p> <p>In claim and delivery to obtain possession of an automobile, the mere fact that third persons were in possession and seemed to have control of the car held insufficient to overcome a presumption of continuity of possession in defendant, who was shown to have been in possession of the car.</p> <p>7. Sales — Damages in Addition to Value of Automobile Held Erroneous.</p> <p>Damages for depreciation were properly allowed in claim and delivery to recover an automobile, proceeding being brought by conditional vendor on failure of vendee to comply with obligations of the contract, but the court erred in the judgment in decreeing that in case of delivery of the property plaintiff recover such damages in addition to the value of the property, which was placed at $G00; it appearing that $G00 was the unpaid purchase price of the car, and plaintiff was only entitled to recover damages to the extent that it be made whole upon his contract.</p> <p>8. Statutes — Courts Must Look to Intention of Legislature.</p> <p>It is elementary that in construing a statute the courts must look to the intention of the lawmaking body. (Ducker, J., dissenting.)</p> <p>9. Evidence — Historical Fact that Legislative Commission Revised Laws.</p> <p>It is an historical fact of which the court may take judicial notice that the legislature appointed commission to revise the laws, including the civil practice act, and that the commission was composed of the members of the supreme court. (Ducker, J., dissenting.)</p> <p>10.New Trial — Written Notice Unnecessary for Beginning of Ten-Day Period Within Which to Move fob New Trial.</p> <p>Under Rev. Laws, 5323, providing that notice of intention to move for a new trial shall be served within ten days “after notice of the decision,” the ten-day period begins to run from notice of the decision, however obtained; written notice being unnecessary. (Ducker, J., dissenting.)</p>

J. McFaclden, Judge. Replevin by the Studebaker Brothers Company of Utah against A. B. Witcher, A. Jurich, and others. Judgment for plaintiff, and defendants Jurich and others appeal.