Volume 45 — Nevada Reports

J. L. Taber, Judge. Action by the Pacific Live Stock Company against the Ellison Ranching Company and others. From an adverse judgment and orders, defendant and cross-complainant Lizzie J. Anderson Dunn and others appeal.

Action by S.- C. Strattan and another against J. P. Raine, as receiver of the Gold Quartz Mining Company of Lander County, Nevada, in which the Gold Quartz Mining Company of Lander County, Nevada, intervened. From judgment rendered and from order denying motion for new trial, plaintiffs appeal. On motion to dismiss appeal.

<p>1. Trial — General Verdict Improper in Equity Suit.</p> <p>A general verdict should not be received in an equity suit.</p> <p>2. Trial — No Legal Right to Have Case Resubmitted to Second Advisory Jury.</p> <p>A general verdict, or special findings, as the case may be, in an equity suit, being only advisory, and in no way binding upon the court, no litigant has a legal right to insist that an advisory jury be called in the first instance or to except to a refusal of the court to resubmit the case to a second advisory jury.</p> <p>3. Mines and Minerals — Forfeiture of Mining Claim for Failure to Work Must Be Clearly Established.</p> <p>Before forfeiture of a mining claim can be declared for failure to do annual assessment work, it must be clearly established.</p> <p>4. Mines and Minerals — Counting Watchman’s Services on Annual Labor Expenditures Is Disfavored.</p> <p>While possibly under some circumstances the services of a watchman to take care of necessary buildings on a mining claim may count as annual labor, the courts should be reluctant to accept such services as applying on annual labor.</p> <p>5. Mines and Minerals — Location by Another Invalid where Assessment Work Is Resumed in Good Faith.</p> <p>Even if $100 worth of work was not clone on a claim during a certain year, yet if work had been resumed thereon prior to the succeeding January 26, and was being carried to completion in good faith and reasonable diligence when another party undertook to locate the ground, such other party’s location was not valid.</p> <p>6. Mines and Minerals — On Resumption oe Work on Claim, Diligent Prosecution Only Required.</p> <p>The law does not contemplate that when work is resumed on a mining claim it shall be prosecuted every hour in the day, or that a full shift shall be done every day, but simply requires that it be prosecuted in good faith and with reasonable diligence.</p> <p>ON PETITION FOR REHEARING</p> <p>1. Appeal and Error — Question Presented First on Petition for Rehearing Oannot Be Considered.</p> <p>A question urged for the first time on petition for rehearing cannot be considered.</p> <p>2. Appeal and Error — Appellate Court Must Abide by Conclusion of Trial Court as to Weight of Conflicting Testimony.</p> <p>When the testimony is conflicting, it is the duty of the appellate court to abide by the conclusion reached by the trial court as to its weight and sufficiency.</p>

Callahan, Judge. ' Action by the Williams Estate Company, against the Nevada Wonder Mining Company. From judgment for plaintiff and from order denying motion for new trial, defendant appeals.

J. L. Taber, Judge. Action by Levi F. Hostetler against J. C. Harris, Sheriff of Elko County. From a judgment for plaintiff and an order denying his motion for a new trial, defendant appeals. The decision of the lower court should be reversed. The amendatory act of the legislature in question is constitutional.

<p>1. Carriers — Pleading Held to Allege that a Carrier’s Rule Was in Force at Time Contract for Transportation Was Made.</p> <p>Construing the pleading with a view to substantial justice, as required by Civ. Prac. Act, sec. 123, an allegation that a particular rule of a carrier was in force in April will not, in an action for breach of contract in July for transportation as a passenger, be disregarded, but will be accepted as an allegation that the rule was in force at the time the contract was made.</p> <p>2. Pleading — Sufficiency of Complaint Determined from Facts Alleged, and Not Conclusion of Pleader.</p> <p>In determining the sufficiency of a complaint as against demurrer, the facts alleged, and not the conclusions of the pleader, govern.</p> <p>3. Carriers — “Ticket-’ Not a Contract, but Nature ' of Receipt Limited and Regulated by Carrier’s Rules.</p> <p>A railroad ticket is not a contract expressing the conditions and limitations usually in a written agreement, but is more in the nature of a receipt for fare and is limited and regulated by the carrier’s rules.</p> <p>4. Evidence — Courts Will Take Judicial Notice of Location of Cities.</p> <p>The courts will take judicial notice that Reno and San Francisco are points west of Ogden for the purpose of interpreting a transcontinental carrier’s rules.</p> <p>5. Carriers — Complaint by Passenger Denied Transportation Held Not to State Cause of Action ; “Local Ticket.”</p> <p>In an action by plaintiff who held ticket from Reno to San Francisco, but who was denied admission to a limited train, the complaint, setting forth the rules of the carrier and the circumstances and seeking recovery on the ground of breach of contract, held not to state cause of action, the rules of the company pleaded declaring a ticket for such transportation to be a local ticket, notwithstanding “local ticket” is ordinarily defined in relation to railroads as traffic confined to a single road, and such rules further requiring a local xiassenger to hold either a sleeping-car ticket or a permit showing that a through passenger would share such accommodations, and the complaint not alleging plaintiff had the required ticket or such a permit.</p> <p>O. Appeal, and Error — Appellant Who Relied on Railroad Rules Cannot on Appeal Contend that They Were Unreasonable.</p> <p>On appeal from a final order sustaining a demurrer to the complaint of one who was denied admission to a limited train, though she held ticket, the rules of the carrier which were set out cannot for the first time be attacked as unreasonable.</p>

Petition by Charles Degiovanni and others for writ of certiorari to be directed to the Public Service Commission of Nevada and the Steamboat Canal and Irrigation company, a corporation. In fixing rates upon complaint against schedule filed by a public utility, the Public Service' Commission exercises judicial functions. In every essential particular, in disposing of rate and regulation contests before it, it is a court of statutorily limited jurisdiction.

Original proceeding in habeas corpus by E. R. Converse after conviction on charge of contributing to juvenile delinquency.

<p>1. New Trial — Granted Only fob Cause Good at Common Law or Enumerated in Statute.</p> <p>If the trial court has inherent power to grant a new trial for causes other than those enumerated in the statute, it must be for some cause that was good at common law.</p> <p>2. New Trial — General Rule at Common Law.</p> <p>The general rule at common law was that a new trial would be granted where an injustice had been done.</p> <p>6. Appeal and Error — Presumed that Case Was Ebee from Error.</p> <p>On appeal by plaintiff from an order granting a new trial for causes other than those enumerated in the statute, it must be presumed that the case was free from error, and that the judgment was a just one, where it does not appear that there was any irregularity or error in the proceedings or trial of the case, or that any injustice resulted.</p> <p>4. New Trtal — Mere Loss of Repoetee’s Notes Not Ground For.</p> <p>The mere fact that the reporter’s notes were lost and a party was “deprived of the use and benefit of the reporter’s notes to make up his memorandum of errors” was not ground for a new trial, as the errors may have been few and simple, and such party may have been able to prepare a proper record from other sources.</p>

E. Orr, Judge. Suit by Emily Hartley Walker against • Orlando F. Walker. From a decree for complainant, defendant appeals. The trial court was without jurisdiction, for the reason that respondent had not been a bona-fide resident at the time of the commencement of the action. The courts have only such j urisdiction as has been conferred by the legislature.

Averill, Judge. Action by Dave Donoghue and others against the Tonopah Oriental Mining Company, a corporation. From- judgment for plaintiffs, defendant appeals. (Coleman, J., dissenting.) The act of Congress of October 5, 1917, is a remedial act. “Statutes tending to effect an object of great public utility” are remedial. 1 Fed. Stats. Ann. (2d ed.), p. 119.

Original proceeding in prohibition by J. Holman Buck against Henry Boerlin and others, as members of the Board of County Commissioners of Mineral County, Nevada.

Lunsford, Judge. Action by W. F. Edwards against the City of Reno and others. From a judgment dismissing the action on demurrer, plaintiff appeals. The question before the court is as to whether or not appellant paid under compulsion. Peyser v. Mayor, 70 N. Y. 497; Purcell v. Mayor, 85 N. Y. 330. The general rule is that “money paid under an illegal assessment cannot be recovered without first setting the assessment aside.” 28 Cyc. 1207.

•Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge. Proceeding for probate of the will of Denis Hegarty, deceased, by Catherine Coleman, executrix and sole legatee, wherein James Hegarty and others petition for revocation of order of probate. From an order revoking the order of probate, the executrix and proponent appeals. The statute (Rev. Laws, 5866) was complied with.

Original proceeding. James H. Neven, having been convicted of manslaughter, applied for a certificate of probable cause for appeal. If the record on its face shows that the petitioner was not prejudiced, the writ and the order for bail should be denied.

Douglas County; Frank P. Langan, Judge. Action by J. C. Robertson against the C. O. D. Garage Company. From a judgment for defendant, plaintiff appeals. Embezzlement by servant or agent entitles principal to recover. Rev. LaAvs, 6650-6654; Stats. 1915, p. 202; 31 Cyc. 1605-1607; Menardi v. Walker, 32 Nev. 169. Plaintiff may recover the property or its value. 31 Cyc. 1607 (2) ; Velsian v. Lewis, 16 Pac. 631.

Original proceeding. Application for writ of habeas corpus by Isaac Rankin. The search warrant was illegal. Such a warrant must .be based on probable cause and supported by affidavit. Rev. Laws, 7417. Nor was it valid under the prohibition act. Stats. 1919, p. 1, sec. - 9. Where affiant makes affidavit as to facts, they must be stated; mere belief is not sufficient. Lippman v. People, 175 111. 112. Where formalities are required, they must be strictly complied with.

J. McFadden, Judge. Action by G. Bralis against Alex Flanges and others, doing-business as the Mothers’ Baking Company. From a judgment for plaintiff and an order denying a new trial, defendants appeal. To hold one liable in an action for money paid, payment must have been made to his use, and at his request, either express or implied, and the complaint must so allege. 27 Cyc. 841; Huguet v. Owen, 1 Nev. 464.

Averill, Judge. Fred Willberg was convicted of murder, and from the judgment, and order denying his motion for new trial, he appeals.

Moran, Judge. Action by J. D. Mariner against Steve Milisich. Judgment for plaintiff, and defendant appeals. (Sanders, C. J., dissenting in part.) The judgment should be modified so as to make it conform to the prayer of the complaint. There was no demand for an attorney’s fee, nor for a decree that title should vest in plaintiff until all balances due on the piano should be paid. Rev. Laws, 5038, 5236, 5241.

Aver ill, Judge. Action by J. F. Ford against R. Fred Brown. From judgment for plaintiff, and from an order denying a new trial, defendant appeals. The selling order, upon which the whole action is grounded, was revoked. The special finding of the jury on the revocation of the selling order controls, precludes any general finding or judgment in favor of plaintiff, and was controlling upon the trial court.

J. L. Taber, Judge. C. Cecchettini and another were convicted of a misdemeanor, denied a new trial, and they appeal. Heard on motion to affirm for default in filing brief. There is no necessity for brief or points and authorities where the transcript of the entire trial is made the bill of exceptions.

<p>1. Appeal and Eebor — Appeal Will Be Dismissed, where Tbanscbipt Was Not Filed within the Time Required.</p> <p>Supreme court rule 2 provides that a transcript of the record on appeal shall be filed within thirty days after the appeal has been perfected and the statement settled, while' rule 3 provides that if the transcript be not filed within the . time prescribed by rule 2, the appeal may be dismissed 'on motion without notice, so that, where the transcript was not filed within thirty days after the appeal, and appellants were not entitled to have tlieir bill of exceptions settled by the court, the appeal must be 'dismissed.</p> <p>2. Appeal and Error — Thirty-Day Limit, for Filing Transcript Runs from Date of Settlement of Bill of Exceptions.</p> <p>Under supreme court rules 2, 3, providing for dismissal of appeal upon failure to file transcript within thirty days after perfecting the appeal, the time for filing the transcript of record would not begin to run until such settlement, but would run from a proper adjudication, denying appellant’s right to settlement of bill of exceptions.</p> <p>3. Exceptions, Bill of — To Excuse Failure to File Bill on Ground that Notice of Final Order Denying New Trial Was Not Given Proper Showing as to Want of Knowledge Must Be Made.</p> <p>Stats. 1915, e. 142, sec. 7, provides that bills of exceptions may be presented, served, and filed within twenty days after a motion for new trial has been determined, and section 10 as amended by Stats. 1919. e. 40, the time may be enlarged by order or stipulation, and where there was no extension and more than twenty days had elapsed since determination of motion for new trial, where defendants’ counsel were not in court at such final determination, verbal statements, made in argument to this court, are an insufficient showing of their lack of knowledge to show error in refusal of lower court to settle the bill of exceptions.</p> <p>4. Appeal and Error — Presumed that Appellant Had Knowledge of Order Refusing New Trial which Started Time for Filing Bill of Exceptions.</p> <p>Where time for filing transcript depended on settlement of bill of exceptions and bill was not filed in time if order denying new trial was- known to appellant on motion to dis- • miss appeal for failure to file transcript, it will be presumed, in absence of contrary showing, that appellant had knowledge of the order denying new trial.</p> <p>5. Exceptions, Bill of — Facts Held to Show that Appellant Had Knowledge of Motion for New Trial which Started Time to File Bill.</p> <p>Where counsel for appellant received information direct from the court that their motion for new trial was in part denied, and would be denied in toto if respondent within ten days thereafter filed his written consent to the modification of the judgment by striking therefrom the damages awarded, and within the time limited by court order they were informed by service of the copy of such written consent that it had been made in accordance with the order, and would be filed, appellant’s counsel were placed on inquiry as to the status of their motion, and the means of knowledge were at hand by inquiry of the court clerk or inspection of the court’s minutes, so that they are not entitled to settlement of bill of exceptions after the expiration of the statutory limit of twenty days after final ruling on motion for new trial.</p>

Lunsford, Judge. Action by Giovanni Bottini against Louis Mongolo and others. From an order refusing to settle a proposed bill of exceptions, defendants appeal. There is no analogy between the questions raised in the previous appeal and those in the present one.

Lunsford, Judge. G. R. Dawson was convicted of attempted rape, and he appeals. The information is fatally defective. There are three essential elements in an attempt to commit a crime, namely, the intent to commit the particular crime, the doing of some act toward its commission, and the failure to consummate it. Rev. Laws, 6291; State v. Thompson, 31 Nev. 209; 16 C. J. 111-118. Each of these elements must be alleged in an information.

Averill, Judge. Action by Mexican Dam and Ditch Company against Joseph Schultz and others, doing business under the name of Schultz Brothers. Judgment for plaintiff. From an order denying a new trial, defendants appeal. The motion to dismiss the appeal should be denied. The record is perfect.

<p>1. Criminal Law — One Wiio Served Sentence Cannot Prosecute Appeal.</p> <p>Where one was sentenced to jail and perfected appeal, but failed to obtain a stay of execution pending the appeal under Rev. Laws,. 7294, and obtained a writ of habeas corpus after serving one month, and was released upon the ground that the remainder of his sentence was void, he cannot further prosecute the appeal to have the stigma removed from his good name.</p>

Lunsford, Judge. Divorce suit by Robert E. Vickers against Victoria T. Vickers. From a judgment for defendant, plaintiff appeals. It was erroneous to grant the motion for judgment on the pleadings. The j udgment should be vacated. Under the pleadings, res judicata is no defense to the action. Judgment on the pleadings cannot be granted when they raise an issue to be tried, or which requires any evidence.

Lunsford, Judge. Divorce suit by Robert E. Vickers against Victoria T. Vickers. From order refusing to set aside judgment for defendant, plaintiff appeals. The trial court is without jurisdiction to pass upon an order previously made by a court of coordinate j urisdiction, if such order affect a substantial right. Silver & Co. v. Waterman, 111 N. Y. S. 456; Heischober v. Polishook, 136 N. Y. S. 567; Sloan v. Beard, 110 N. Y. S. 1; Blaustein v. Lyon, 132 N. Y. S. 387.

Thomas J. Green was convicted of grand larceny, and he appeals. The judgment should be reversed for error in giving and refusing certain instructions, and because of the insufficiency of the evidence to support the verdict. The assumption by the court in his charge in a criminal case that any material fact upon which there is any conflict is proved is error.

<p>1. Hoot Question.</p> <p>When a question presented for determination has become moot, the court will not pass upon it.</p>

Callahan, Judge. Suit by Ed. Carville against J. A. McBride, Mayor of the City of Elko, T. F. Brennen and others, Supervisors of the City of Elko, and the City of Elko and the Board of Supervisors thereof. From judgment sustaining defendants’ demurrer to the complaint, and for defendants upon the merits, and denying a motion for a new trial, plaintiff appeals. As it deprived qualified electors of the right to vote, the election was a nullity.

Callahan, Judge. In the matter of the estate of Matt A. Parrott, deceased. Objection by Lucy Peggy Parrott Arzaga to a petition for distribution of the estate among the beneficiaries under the will. From a judgment dismissing the objection, objector appeals.

Lang an, Judge. Action by Dora Dean Rickey and others against the Douglas Milling and Power Company. Judgment for the plaintiffs, and defendant appeals from the judgment, and from an order denying its motion for new trial. All papers and documents in the case are before the court. They are contained in two volumes.

(Sanders, C. J., not participating.) The issuing of a remittitur does not divest the supreme court of jurisdiction of the cause. It must be delivered to the clerk of the lower court, by him received for filing, and it must be regularly filed and entered in the record book of his office. The lower court does not reacquire jurisdiction of the cause until the remittitur has been regularly filed and entered in the court records.

County; Mark R. Averill, Judge. Action by W. E. Goldsworthy against D. S. Johnson. Judgment for defendant, and plaintiff appeals. The court erred in permitting respondent to testify as to the donor’s physical condition, and as to what she had told him about it three days before her death.’ “No person shall be allowed to testify: 1. When the other ■ party to the transaction is dead.” Rev. Laws, 5419.

Appeal, by defendants, from clerk’s ruling on objection to cost bill. Appellants having secured the relief of a modification of the judgment, they are entitled to their costs. “In the event no order is made by the court relative to the costs, * * *. the party obtaining any relief shall have his costs.” Rev. Laws, 5381. The so-called cost bill was not filed within five days after the decision of the cause. Rule 6, Supreme Court.

C. Hart, Judge. Action by Gust Rahis against Neil McLeod, Sheriff of Lyon County. From a judgment for plaintiff and an order denying a new trial, the defendant appeals. Replevin is strictly a proceeding at law; it cannot be invoked as an equitable suit for the rescission or cancelation of a contract. 34 Cyc. 354; Fredericks v. Tracy, 98 Cal. 658; Thompson v. Peck, 73 Pac. 843.

<p>1. Judgments — Decree for Specific Performance to Convey Realty I-Ield Joint as to All Defendants.</p> <p>In a suit by an adopted son for specific performance of an agreement of liis foster parents to leave him their property, a decree • of specific performance as to the whole property against all of the defendants including two defendants who had defaulted, was joint as to all of the defendants.</p> <p>2. Appeal and Error — Decision Reversing Case as to Defaulting and Nonappealing Defendants Must Be Objected to, if Considered Erroneous.</p> <p>In a suit for specific performance of a contract to leave plaintiff all the property belonging to deceased persons, in which two defendants defaulted, and after a joint judgment against defendants, including those who defaulted, an appeal was taken in which the judgment was reversed, and no modification was asked by plaintiff as to the interest represented by defendants, who defaulted and who failed to appeal, plaintiff is precluded, after the retrial and judgment in favor of defendants, from raising by petition to the court the question of his rights as to the share of the defaulting and the nonappealing defendants, regardless of Rev. Laws, 5239 and 5240, providing that a judgment may be entered against one or more of several defendants, when no judgment could be rendered against all.</p> <p>' 3. Judgment — ’Statutes Authorizing Judgment against One Defendant Construed to Prevent Dismissal as to All Defendants when One Was Liable.</p> <p>The purpose of Rev. Laws, 5239, 5240, providing that judgment may be given for or against one or more of several defendants, when no judgment could be rendered against all, was to prevent dismissal as to all when it appeared that one was liable.</p> <p>4. Statutes — Legislation Construed in Light of Purpose To Be Accomplished.</p> <p>All legislation must be construed in the light of the purpose sought to be accomplished.</p>

Callahan, Judge. Action by M. M. Page against Thomas Sutton. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals. The admission of the promissory note was not error, it being an admission by persons beneficially interested in the result of the case. 22 C. J. 333.; 16 Cyc. 984. “Declarations against interest of a party beneficially interested in the result of a litigation are always admissible.” Kinnane v. Conroy, 101 Pac. 223.

Langan, Judge. Action by May L. Corcoran against E. R. Dodge and others. From judgment for defendants, plaintiff appeals. The general policy of the courts has been to permit a hearing on the merits of every cause where it could be reasonably done. The record is complete and the assignment of errors was properly and seasonably made, so that all-of the subject-matter is before the court.

Emmett Walsh, Judge. Action by Sterling Parks against the Western Union Telegraph Company, a corporation. From an order overruling plaintiff’s demurrers to affirmative defenses in the answer, and from a judgment on the pleadings, plaintiff appeals.

Aver ill, Judge. Action by Harry H. Hunter, Jr., against Thomas Sutton. From an order sustaining plaintiff’s objection to the hearing of defendant’s motion for new trial, defendant appeals. (Ducker, J., dissenting.) Notice of intention to move for a new trial must be filed and served within ten days after notice of decision. Notice was filed in time, for the reason that no notice of the decision was served before the filing of the notice of intention.

Averill, Judge. Action by Harry H. Hunter, Jr., against Thomas Sutton. Judgment for plaintiff, and defendant appeals. The complaint does not state a cause of action. It cannot be ascertained therefrom whether. the suit is brought on the theory of obtaining damages for the loss of probable profits or for commissions earned by a broker, or for both.