rehearing">

On Petition for Rehearing

*73 For former opinion see 60 Nev. 66, 99 P. (2d) 641.

OPINION

By the Court,

Taber, C. J.:

While it is true, as stated in the opinion on the first *74 appeal in this case (59 Nev. 121, 86 P. (2d) 80, 31), that “The pleadings do not constitute evidence,” it is equally true, as said in the same opinion, that “A fact alleged in a pleading verified by a party to an action, which is not denied, is admitted.” This is one of the primary rules of pleading, and is elementary. 20 Am. Jur. 532, sec. 630; 21 R. C. L. 561, 562, sec. 120, nn. 10, 14.

Defendant himself alleges in his answer that Mrs. Bridgman deposited the money in controversy in the name of the infant. This is not denied in plaintiff’s reply. What is denied is that the money was placed in the infant’s name for the use and benefit of Mrs. Bridgman, and held to her use and benefit by the infant. Thus, while there is no oral testimony or other evidence as to where the infant procured the money which she deposited in the postal savings account, the fact that she procured it from Mrs. Bridgman, who deposited it in her name, is indisputably established by the pleadings.

It was stated in our decision on the first appeal that there was not a scintilla of evidence that the infant lent the money to'Mrs. Bridgman, or otherwise disposed of it. And in that decision the court further said: “Assuming that the money in question belonged to the plaintiff when deposited and withdrawn from deposit, there is no evidence as to what was done with it by the plaintiff after she drew it out of the savings account.” In defendant’s answer it is alleged that from time to time and at the instance and direction of Mrs. Bridgman, the infant drew out the said money and gave it to her. In her amended reply, in response to the- foregoing alleg-ation, plaintiff expressly admits that the money was actually and physically delivered to Mrs. Bridgman by the infant. What was done with the money after it was withdrawn from the savings account is thus clearly established by the pleadings.

When we said, in our opinion on this appeal? that we could examine the evidence to determine the legal question whether there was any evidence to support the *75 judgment, we were employing the language used in Sweet v. Sweet, 49 Nev. 254, at page 258, 243 P. 817. It is obvious that the rule referred to applies to facts established by the pleadings as well as by the evidence.

There was some substantial showing-, from the pleadings and evidence, that the money in question was a gift to Miss Steele, and we must therefore accept the finding of the trial court to that effect; we cannot, for the reason given in our opinion on this appeal, consider whether the evidence was sufficient to support that finding. The money, at the time of its withdrawal, was the exclusive property of Miss Steele; it is admitted that she delivered it to Mrs. Bridgman at the latter’s request. At that time, as at the time the money was given her, she was an infant, and there is nothing in the pleadings or evidence showing, or tending- to show, that the money, or any part of it, was given or used for necessaries. Under these circumstances, and in view of the protection thrown by the law around infants, making their contracts and transfers of money voidable, the trial court found that the money was lent to Miss Steele. Whethér we would have arrived at the same conclusion had we sat as trial judges, we do not say; and as defendant failed to serve plaintiff with notice of desired additions to or modifications of the proposed findings, we cannot determine whether the evidence was sufficient to justify the trial court’s finding that the transaction constituted a loan. The finding must stand because it cannot be said that there was no substantial showing in support of it.

Petitioner has directed our attention to the presumption that money paid by one to another was due to the latter. Statutes of Nevada 1931, chap. 50, sec. 558g, subd. 7, p. 60, at page 61. This statutory presumption is called to our attention for the first time in the petition for rehearing; but aside from that, while the statute provides that such disputable presumptions are satisfactory, if uncontradicted, it likewise provides that they *76 are not conclusive. See the same act, sec. 558f, p. 60. In the instant case the money in question, which was the exclusive property of Miss Steele while on deposit and when withdrawn therefrom, was delivered to Mrs. Bridgman.at a time when Miss Steele was yet an infant; and as the question of the sufficiency of the evidence to justify the decision is not before us — the sole question being whether there was any substantial showing to support the judgment — the presumption relied on by appellant would not, in our opinion, justify setting aside the finding of the trial court.

The petition for a rehearing is denied.

Citation profile

Relationships

How this case has been treated — in progress