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+"{\"id\": \"11446316\", \"name\": \"TAGGART PARRISH, Appellant, v. THE STATE OF NEVADA, Respondent\", \"name_abbreviation\": \"Parrish v. State\", \"decision_date\": \"2000-11-22\", \"docket_number\": \"No. 32972\", \"first_page\": 982, \"last_page\": 992, \"citations\": \"116 Nev. 982\", \"volume\": \"116\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T22:59:43.669441+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Shearing, Agosti and Leavitt, JJ.\", \"parties\": \"TAGGART PARRISH, Appellant, v. THE STATE OF NEVADA, Respondent.\", \"head_matter\": \"TAGGART PARRISH, Appellant, v. THE STATE OF NEVADA, Respondent.\\nNo. 32972\\nNovember 22, 2000\\n12 P.3d 953\\nRobert C. Bell, Reno, for Appellant.\\nFrankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.\\nBefore Shearing, Agosti and Leavitt, JJ.\", \"word_count\": \"3618\", \"char_count\": \"23113\", \"text\": \"OPINION\\nBy the Court,\\nAgosti, L:\\nPursuant to a plea of guilty, appellant Taggart Parrish was found guilty of trafficking in a controlled substance in violation of NRS 453.3385(3) and resisting and obstructing a public officer with the use of a dangerous weapon in violation of NRS 199.280(1). As permitted under NRS 453.3405(2), Parrish moved for a suspended sentence on the trafficking count. His motion was predicated upon his assertion that he had provided substantial assistance to law enforcement consistent with NRS 453.3405(2). NRS 453.3405(2) allows the district court, at its discretion, to reduce or suspend the sentence of anyone convicted of certain drug-trafficking offenses, if the district court \\\"finds that the convicted person rendered substantial assistance in the identification, arrest or conviction\\\" of other drug traffickers. NRS 453.3405(2) (emphasis added). The district court in this case made no findings concerning whether Parrish had performed substantial assistance, but proceeded to sentence Parrish to life imprisonment, the maximum sentence allowed.\\nOn appeal, Parrish contends that the district court abused its discretion by failing to find that he had provided substantial assistance as defined in NRS 453.3405(2). Based upon the state of the record, we are unable to determine whether the district court erred in its application of the law or, alternatively, whether the district court found that Parrish had provided substantial assistance but, in its discretion, denied his motion for a reduced or suspended sentence. This ambiguous record compels the conclusion that the defendant is entitled to a new penalty hearing. We therefore vacate Parrish's sentence and remand this case to the district court to conduct a new sentencing hearing before a different district judge.\\nFACTS\\nOn March 9, 1998, police stopped a vehicle in which the appellant, Taggart Parrish, was riding as a passenger. Parrish attempted to flee on foot from the officers. Immediately, several officers gave chase. During the foot pursuit, Parrish attempted to aim a handgun in one officer's direction. Fortunately, the officer knocked the handgun out of Parrish's hand. A lengthy struggle ensued, during which Parrish attempted to reach the handgun numerous times. Finally, the police subdued and arrested Parrish. The police subsequently discovered methamphetamine in the vehicle in which Parrish had been riding.\\nAfter Parrish's arrest, detectives assigned to the Consolidated Narcotics Unit (\\\"CNU\\\") met with Parrish at the jail to discuss the possibility that Parrish would provide substantial assistance pursuant to NRS 453.3405(2). The detectives testified that Parrish was very cooperative during this meeting. Parrish, in conjunction with his fianc\\u00e9e, provided information concerning fourteen individuals allegedly involved in drug trafficking. The information was detailed and particular, including names and telephone numbers, maps of areas where police could find drug traffickers, information about surveillance, and how the police could protect themselves during later investigations.\\nThe CNU detectives admitted that it was a \\\"large list\\\" and conceded that Parrish had supplied more information than would normally be provided by others attempting to render substantial assistance. Furthermore, the detectives testified that they recognized three names on the list Parrish provided. One person on the list had already been arrested in California. At the time of Parrish's sentencing hearing, two other individuals on the list had been arrested through means unrelated to the information provided by Parrish. When asked whether he would have liked to have followed up on the information Parrish had provided, one of the CNU detectives responded that he was \\\"definitely interested\\\" in doing so.\\nHowever, CNU detectives never investigated the information Parrish gave them. When asked during the sentencing hearing why they had not followed up on these leads, a CNU detective explained:\\nCaseload and priorities. Priorities of the unit in the last couple of months have not been to respond to these types of leads. I mean, we have been responding to citizens' complaints, and there's an operation that we have been involved with over the last couple of months that has taken all of our time.\\nBesides a lack of time and other \\\"priorities,\\\" CNU detectives testified that because of the events surrounding Parrish's arrest, they would not work with Parrish because Parrish would present a danger to officers. The detectives testified that normally the CNU works with defendants who are attempting to provide substantial assistance by having the defendant participate in a \\\"controlled buy,\\\" that is, the police would \\\"[fit the defendants] with a wire, giv[e] them money and hav[e] them do a buy for us.\\\" However, the detectives admitted that it was possible to investigate the information without involving Parrish and that they were willing to try that approach. Nevertheless, the information Parrish had provided was never investigated in this, or any other, manner.\\nThe detectives also testified that it is the CNU's opinion that lists, like the one provided by Parrish, do not constitute substantial assistance \\\"[u]nless we fully follow it up and it result[s] in arrest.\\\" Furthermore, the detectives stated that their supervisors do not like officers testifying at a defendant's sentencing hearing that the defendant provided substantial assistance unless the information provided resulted in \\\"actual bodies and product. That's their policy.\\\"\\nIn addition to a fine of not more than $500,000.00, the punishment for trafficking in twenty-eight or more grams of a controlled substance is either: (1) life imprisonment, with the possibility of parole after a minimum of ten years has been served; or (2) a definite term of twenty-five years imprisonment, with the possibility of parole after a minimum of ten years has been served. NRS 453.3385(3). Additionally, NRS 453.3405(1) mandates that a defendant convicted of trafficking in a controlled substance is not eligible for a reduced or suspended sentence.\\nThe district court continued Parrish's sentencing hearing on two separate occasions. While Parrish claims that the district court continued his sentencing hearing because the CNU was working with Parrish, the record reveals that the first scheduled sentencing hearing was continued because Parrish's new attorney was only assigned to the case the day before the hearing. The second scheduled sentencing hearing was continued for reasons not stated in the record. We assume, for purposes of this appeal, that the sentencing hearing was continued for the second time in order to allow Parrish additional time to work with the police. The district court then denied Parrish's request to continue the sentencing hearing a third time to allow the CNU more time to follow up on the information he had provided, and proceeded with sentencing.\\nAt the sentencing hearing, Parrish moved for a suspended sentence on the trafficking count pursuant to NRS 453.3405(2). Parrish was informed by the written plea memorandum, his attorney and the district court at the time he entered his plea of guilty that he was not eligible for probation on the trafficking count unless the district court determined that he had complied with the provisions of NRS 453.3405(2) by rendering substantial assistance to law enforcement officials. The district court heard evidence on Parrish's motion at the sentencing hearing. However, the district court made no finding concerning whether Parrish had or had not provided substantial assistance. Instead, the district court sentenced Parrish to the maximum prison sentence allowed for the crime of trafficking in a controlled substance.\\nOn appeal, Parrish claims that the district court abused its discretion by failing to find that he rendered substantial assistance in accordance with NRS 453.3405(2). Based on our review of the record, it is unknown whether the district court failed to find that Parrish rendered substantial assistance based upon a misinterpretation of the statute, and thereby erred in its application of the law, or whether the district court found that Parrish did provide substantial assistance pursuant to the statute but declined, in the exercise of its discretion, to reduce or suspend Parrish's sentence. Accordingly, we vacate Parrish's sentence and remand the case to the district court for a new sentencing hearing before a different district judge.\\nDISCUSSION\\nNRS 453.3405(2) allows the district court, upon proper motion, to reduce or suspend the sentence of the defendant when the district court finds the defendant rendered substantial assistance in the identification or apprehension of other drug traffickers. NRS 453.3405(2) reads:\\nThe judge, upon an appropriate motion, may reduce or suspend the sentence of any person convicted of violating any of the provisions of NRS 453.3385, 453.339 or 453.3395 if he finds that the convicted person rendered substantial assistance in the identification, arrest or conviction of any of his accomplices, accessories, coconspirators or principals or of any other person involved in trafficking in a controlled substance in violation of NRS 453.3385, 453.339 or 453.3395. The arresting agency must be given an opportunity to be heard before the motion is granted. Upon good cause shown, the motion may be heard in camera.\\nWe note that several other states, as well as the federal system, have similar provisions. Such statutes are obviously intended to provide an incentive to drug-trafficking offenders to cooperate with law enforcement in the investigation of other drug traffickers.\\nParrish contends that the nature and amount of information he provided to the detectives, information which did identify other drug traffickers, constituted substantial assistance within the meaning of NRS 453.3405(2). Parrish further argues that the detectives' failure to follow up on the information he gave them, choosing instead to prioritize other investigations over following up on Parrish's information, should not result in a finding that Parrish had not rendered substantial assistance. Therefore, Parrish contends the district court abused its discretion by failing to find that he rendered substantial assistance within the meaning of NRS 453.3405(2).\\nWe begin by noting that the district court is afforded wide discretion when sentencing a defendant. See Randell v. State, 109 Nev. 5, 7-8, 846 P.2d 278, 280 (1993). As we have acknowl edged, \\\" 'judges spend much of their professional lives separating the wheat from the chaff and have extensive experience in sentencing, along with the legal training necessary to determine an appropriate sentence. ' \\\" Id. (quoting People v. Mockel, 276 Cal.Rptr. 559, 563 (Ct. App. 1990)). We are also cognizant that in this case the legislature has clearly vested the district court with discretion, by stating that the judge ' 'may reduce or suspend the sentence . if he finds that the convicted person rendered substantial assistance.\\\" NRS 453.3405(2) (emphasis added).\\nNevertheless, this discretion is not limitless. When imposing a sentence, a district court may not abuse its discretion. See Martinez v. State, 114 Nev. 735, 737-38, 961 P.2d 143, 145 (1998). Therefore, on appeal, \\\"in the absence of a showing of abuse of such discretion, we will not disturb the sentence.\\\" See Deveroux v. State, 96 Nev. 388, 390, 610 P.2d 722, 724 (1980).\\nIn addition to the \\\"abuse of discretion\\\" standard, we are also mindful of our holding in Matos v. State, 110 Nev. 834, 878 P.2d 288 (1994). In Matos, the defendant, in an effort to reduce his sentence, offered to assist the police pursuant to NRS 453.3405(2). See Matos, 110 Nev. at 836, 878 P.2d at 289. However, because Matos had threatened to kill several members of the Consolidated Narcotics Unit, and had gone so far as to have a \\\"contract\\\" put out on a former police informant, law enforcement officers refused to accept his assistance. Id. Under the facts of Matos, we concluded that since the defendant clearly posed a danger to law enforcement officers, those officers could legitimately reject his offer to render substantial assistance. Id. at 836-37, 878 P.2d at 289. Furthermore, we observed that on appeal this court would imply findings of fact and conclusions of law if the record clearly supports the district court's ruling. Id. Therefore, we held in Matos that even if the district court erred in its technical interpretation of the statute, the district court did not err in concluding the defendant had not rendered substantial assistance. Id.\\nToday's case does not overrule these sound principles. Rather, Parrish's situation does not present the case where law enforcement officers legitimately rejected his offer to assist drug agents. On the contrary, Parrish was approached by CNU officers after he was arrested and was asked if he was willing to provide substantial assistance. Parrish was willing. CNU detectives testified that they were \\\"definitely interested\\\" in following up on the information Parrish provided. One of the detectives further testified that he believed that the information Parrish provided was reliable since two people on Parrish's list had been arrested for drug offenses subsequent to, but not related to, Parrish's disclosure of their identities. Therefore, unlike Matos, this is not a case where detectives legitimately refused to work with the defendant. In contrast to Matos, detectives in this case seemed quite willing to extract information from Parrish; they simply did not want to work personally with and in close proximity to Parrish.\\nParrish correctly argues that nowhere in NRS 453.3405(2) is there a requirement that the police personally work with a defendant who is attempting to provide substantial assistance. While police may legitimately refuse to work closely with a defendant who, in the view of police officers, poses a danger to themselves or the public, substantial assistance, pursuant to the terms of the statute, may be rendered in other ways. We understand the detectives' unwillingness to utilize Parrish in a controlled buy operation after he engaged in a prolonged physical struggle with law enforcement officers during his arrest and had, during the same incident, drawn a weapon on those officers. However, it is clear in this case that the information Parrish provided could have been investigated in a manner that did not personally involve Parrish. The officers themselves evaluated the information positively and thought it was sound enough to warrant further investigation. Therefore, the district court could have found that Parrish rendered substantial assistance even though the detectives refused to work closely with Parrish.\\nWhat is so troubling about this case is the district court's apparent acceptance of CNU's \\\"policy\\\" concerning substantial assistance. The CNU detectives testified that in their opinion only arrests, or as they put it, information resulting in \\\"actual bodies and product,\\\" constituted substantial assistance. Because the district court did not specifically address this interpretation and sentenced Parrish to the maximum sentence allowed, it seems that the district court may have implicitly accepted CNU's \\\"policy\\\" as a correct statement of the law.\\nCNU's policy clearly constitutes a misinterpretation of the statute. NRS 453.3405(2) plainly states that the district court may find that the defendant rendered \\\"substantial assistance in the identification, arrest or conviction\\\" of other drug traffickers. (Emphasis added.) A plain reading of the statute reveals that an arrest is not a necessary prerequisite to a determination that a defendant has rendered substantial assistance. While CNU is free to develop its own internal policy concerning when the agency, in exercising its opportunity to be heard pursuant to NRS 453.3405(2), will recommend that the court reduce or suspend the sentence of an offender, CNU is not free to represent to the court that substantial assistance has not been rendered simply because their internal requirements have not been met.\\nFurthermore, we take this opportunity to elaborate on the discretion with which district courts are vested under NRS 453.3405(2). Under this statute, once an appropriate motion is made, the district court may permissibly exercise its discretion in one of two ways. First, the district court may find that a defendant has not rendered substantial assistance under the statute, and therefore is not eligible for a sentence reduction or suspension. Second, even if the district court finds that a defendant has rendered substantial assistance in accordance with NRS 453.3405(2), the district court is still free in its discretion to reduce or suspend the sentence. The difficulty in this case is that we are unable to ascertain from the record why the district court sentenced Parrish to the maximum sentence allowed.\\nOur holding today does not require law enforcement to work with every defendant who wishes to render substantial assistance. Neither is law enforcement required to act on every piece of information provided to them by a defendant attempting to render substantial assistance in an attempt to avoid an otherwise harsh, mandatory sentence. Nor do we hold that substantial assistance is rendered as a matter of law whenever a defendant provides law enforcement officers with information. The trial judge is always in the best position to evaluate the sincerity, reliability, quality and value of a defendant's efforts to provide substantial assistance. However, a judicial determination of whether or not substantial assistance has been rendered must be made by application of the statutory requirements to the defendant's efforts. If the district court sets a higher standard than is statutorily required for a finding of substantial assistance, the purpose of the statute is defeated. What is more, offenders who might otherwise be willing to trade information for the possibility of leniency will not do so if the carrot of leniency is illusory.\\nThose responsible for enforcing the laws of this state, and in turn the public, are benefited when defendants choose to provide the police with information that leads to the \\\"identification, arrest or conviction' ' of others involved in the drug trade. When offenders perform substantial assistance, it would be unfair to provide no relief under the statute to them unless an articulable reason exists not to reduce or suspend the sentence.\\nIn this case, Parrish provided CNU with a considerable amount of information. The detectives were able to independently corroborate some of that information. It is clear that this information did identify drug traffickers known to law enforcement through its own resources. This enhances the possibility that the rest of the information, if investigated, would have led to the \\\"identification, arrest or conviction\\\" of other drug traffickers. While we are unwilling to hold as a matter of law that Parrish rendered substantial assistance, it is clear to us, based on the nature and amount of information Parrish provided to law enforcement, that the district court could have found that Parrish provided substantial assistance. As we stated in Matos, this court may imply factual findings if the record clearly supports the lower court's ruling. Matos v. State, 110 Nev. 834, 836, 878 P.2d 288, 289 (1994). Here, we cannot say that the record clearly supports the district court's decision.\\nAccordingly, we hold that when evidence is presented to the district court concerning whether or not a defendant has rendered substantial assistance pursuant to NRS 453.3405(2), the district court is required to expressly state its finding concerning whether or not substantial assistance has been provided. Because the district court in this case made no such finding, and because the record does not clearly support a finding that there had been no substantial assistance provided to law enforcement, we vacate Parrish's sentence. We cannot determine from the record in this case whether the district court misinterpreted NRS 453.3405(2) since evidence was presented which could support a finding that Parrish had provided substantial assistance. Based on the foregoing, we affirm Parrish's judgment of conviction but vacate his sentence and remand this case for a new sentencing hearing before a different district judge.\\nShearing and Leavitt, JJ., concur.\\nNRS 453.3405(2) requires that the arresting law enforcement agency be giyen an opportunity to be heard concerning whether the defendant has rendered substantial assistance.\\nNRS 453.3405(1) provides:\\nExcept as provided in subsection 2, the adjudication of guilt and imposition of sentence of a person found guilty of trafficking in a controlled substance in violation of NRS 453.3385, 453.339 or 453.3395 must not be suspended and the person is not eligible for parole until he has actually served the mandatory minimum term of imprisonment prescribed by the section under which he was convicted.\\nFor the crime of trafficking in a controlled substance, the district court sentenced Parrish to life imprisonment and ordered Parrish to pay a fine of $25,000.00. The district court sentenced Parrish to a consecutive term of twelve to forty-eight months in prison for obstructing and resisting a public officer with the use of a dangerous weapon.\\nParrish also contends that he did not receive the benefit of his plea agreement, or, more precisely, as Parrish put it in his brief to this court, that \\\"there was a clear violation of the sanctity of the plea agreement or bargain.\\\" See Santobello v. New York, 404 U.S. 257 (1971). Because we hold that Parrish is entitled to a new sentencing hearing for reasons related to the substantial assistance statute, we need not address this argument.\\nSee, e.g., U.S. Sentencing Commission, Guidelines Manual \\u00a7 5K1.1 (Nov. 1999); Fla. Stat. Ann. \\u00a7 893.135(4) (West 2000); Ga. Code Ann. \\u00a7 16-13-31(f)(2) (1998).\\nParrish claims that the trial court abused its discretion by failing to find that Parrish had rendered substantial assistance. However, as we have noted, we cannot determine from the record if the district judge did in fact determine that Parrish had not rendered substantial assistance.\\nFrom the record, it is unclear whether the police refused to work with Parrish due to the circumstances surrounding his arrest, or whether a lack of time and resources simply prevented the officers from fully investigating the information provided by Parrish. In any event, it is clear that Parrish did provide the police with a large amount of apparently valuable information.\"}"

nev/11788611.json

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+"{\"id\": \"11788611\", \"name\": \"RAYMOND ROSS, Appellant, v. RENO HILTON; DEPARTMENT OF ADMINISTRATION, HEARINGS DIVISION, and Appeals Officer, NANCY FONG WONG, Respondents\", \"name_abbreviation\": \"Ross v. Hilton\", \"decision_date\": \"1997-01-30\", \"docket_number\": \"No. 27712\", \"first_page\": 228, \"last_page\": 234, \"citations\": \"113 Nev. 228\", \"volume\": \"113\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T23:03:24.829828+00:00\", \"provenance\": \"CAP\", \"judges\": \"Shearing, C. J., and Rose, Young, and Maupin, JJ., concur.\", \"parties\": \"RAYMOND ROSS, Appellant, v. RENO HILTON; DEPARTMENT OF ADMINISTRATION, HEARINGS DIVISION, and Appeals Officer, NANCY FONG WONG, Respondents.\", \"head_matter\": \"RAYMOND ROSS, Appellant, v. RENO HILTON; DEPARTMENT OF ADMINISTRATION, HEARINGS DIVISION, and Appeals Officer, NANCY FONG WONG, Respondents.\\nNo. 27712\\nJanuary 30, 1997\\n931 P.2d 1366\\nDavid R. Ford, North Las Vegas, for Appellant.\\nPiscevich & Fenner, Reno, for Respondents.\", \"word_count\": \"2105\", \"char_count\": \"13019\", \"text\": \"OPINION\\nBy the Court,\\nSpringer, J.:\\nDisposition of this workers' compensation controversy turns on an interpretation of NRS 616.50185(1). This statute provides that a claimant is not entitled to compensation if (1) the claimant suffers from a \\\"preexisting condition\\\" that is not connected to employment and (2) the worker's compensation claim under consideration is one which aggravates, precipitates or accelerates the \\\"preexisting condition.\\\" Additionally, the statute provides an exception to the stated rule of non-coverage which allows coverage (even when there is aggravation, precipitation or acceleration of a preexisting condition) when the industrial accident out of which the claim arose is the primary cause of the resulting disability. Stated another way: a worker's compensation claimant who has a preexisting ailment or disability is not entitled to compensation for an industrial accident that merely worsens or \\\"aggravates\\\" an already-present ailment or illness, unless the claimed disability was primarily caused by the injury rather than by the preexisting condition.\\nApplication of the cited statutory rule of ineligibility for compensation and its \\\"primary cause\\\" exception raises two issues. First it must be determined whether a preexisting condition has been aggravated, precipitated or accelerated by an industrial injury. If that is found to be the case, then a second question arises, namely, which of the two, the aggravated preexisting condition or the subsequent work-connected injury, is the \\\"primary cause\\\" of the disability. In the present case, it is really not necessary to consider the primary cause exception because it is clear that when the claimant fell at work he sustained a completely new injury and a trauma that cannot possibly be called an aggravation, precipitation or acceleration of a preexisting condition.\\nThe claimant suffered a fall at the workplace, falling forward on the right side of his face, injuring his right eye, his knee and back. The specific injury to his eye was the displacement of a previously implanted intraocular lens and a detached retina. The eye injury suffered in the fall was repaired surgically. Although the self-insurer allowed compensation for the other injuries, it refused to compensate the claimant for the eye injury. The hearing officer granted the claim; however, an appeals officer reversed the holding of the hearing officer, ruling that the \\\"self-insured employer properly denied coverage of the right eye condition as a part of the claim.\\\" The district court denied judicial review, and the claimant appeals. We now order the judgment of the district court reversed and the matter remanded with instructions that the claim relating to the eye injury be granted.\\nIn applying the statute to the present case, the threshold consideration is whether the claimant's work-connected fall on his face can properly be said to have \\\"aggravate[d], precipitate[d] or accelerate[d] \\\" some \\\"preexisting condition.\\\" If it were concluded that there was no such aggravation, precipitation or acceleration of a preexisting condition, there would, of course, be no call for us to consider the exception and inquire into whether the injury or the preexisting condition was the primary cause of the present disability. We do conclude that the fall did not aggravate, precipitate or accelerate a preexisting condition; but, nevertheless, we do discuss briefly the primary cause exception.\\nThe employer contends that the claimant, by reason of his previous cataract surgery, had a \\\"weakened condition\\\" of his right eye.\\nAll of the medical evidence in this case shows that the claimant's lens dislocation and retinal detachment were caused by and were \\\"secondary to\\\" the fall. According to Jarl C. Nielsen, M.D.: \\\"It is most probable that this patient's unfortunate fall caused the dislocation to the intraocular lens and prolapse of vitreous into the anterior chamber. This in turn caused vitreoretinal traction, creating the retinal tear which led to his retinal detachment.\\\" (Letter dated August 25, 1994.)\\nEven the Hilton's physician, R. T. Moore, M.D., noted: \\\"It is evident to me that there has been trauma to the right eye associated with the findings\\\" (i.e., lens dislocation, vitreous prolapse and lens detachment). The claimant experienced a trauma that caused objectively verifiable injuries to his right eye, requiring surgical repair. Even if we were to accept Dr. Moore's opinion that the damage to the claimant's injured eye was \\\"related to two factors,\\\" both the fall and the \\\"somewhat weakened condition [of] the eye\\\" attendant to the previous cataract surgery, one certainly cannot conclude the blow to the claimant's right eye \\\"aggravate^], precipitate[d] or accelerate[d]\\\" the \\\"somewhat weakened condition [of] the eye.\\\"\\nCommon dictionary definitions of the three terms are as follows:\\naggravate: \\\"to make worse, more serious, or more severe; to produce inflammation in\\\" Webster's 3rd New International Dictionary 41 (1976);\\nprecipitate: \\\"to cause to move or act very rapidly; to cause to happen or come to a crisis suddenly, unexpectedly or too soon; to fall or come suddenly into some condition\\\" Id. at 1784;\\naccelerate: \\\"to bring about at an earlier point in time; to hasten the ordinary progression or development of' Id. at 10.\\nThe only part of the statutory definition that is remotely relevant to this case is that of \\\"aggravation].\\\" It is easy to see, however, that the trauma to the claimant's eye here did not \\\"worsen\\\" a weakened condition; the blow to the eye was an independent trauma to the eye that caused rather than aggravated the claimant's eye injuries and necessitated the surgical reattachment of the claimant's retina. The damage caused by the blow may, as Dr. Moore tells us, have been in some way \\\"related to\\\" the weakened condition; but this is not the same as saying that the injuries the claimant suffered worsened any condition that was created by his having had a previous cataract surgery. The cataract surgery did not, obviously, cause the detached retina, even if it might be related in some way to the detachment. To say that a weakened eye caused the trauma to the claimant's eye would be much like saying that lacerations to an eye resulting from a punch were caused by the victim's wearing eye-glasses.\\nDr. Moore opined that had the \\\"patient not had cataract sur gery with an implant, the fall would probably not have created a retinal detachment.\\\" Taking the foregoing example of eye lacerations further, one could just as readily say that the lacerations were \\\"related to\\\" the wearing of eye-glasses but that the injuries were \\\"caused by\\\" the trauma, the blow to the face. One could also say, of course, that if the hypothetical victim had not been wearing eye-glasses, the punch would probably not have resulted in lacerations. Dr. Moore's statement that were it not for the surgery, the eye injuries suffered in the fall would probably not have resulted falls far short of saying that the cataract surgery caused the eye injuries suffered by this claimant.\\nDr. Moore's statement that the damage to the eye was \\\"related to\\\" the previous cataract surgery, and that absent the previous cataract surgery the fall probably would not have \\\"created\\\" a retinal detachment, certainly does not support a conclusion that the trauma \\\"aggravated\\\" the surgically \\\"weakened\\\" condition of the claimant's eye. If, for example, one person punches another person's previously-broken nose, no one would say that the assailant was \\\"aggravating\\\" the condition of the victim's nose. Even if it could be determined that the blow would not have broken the nose but-for the \\\"somewhat weakened condition\\\" of the nose, certainly no one could argue that the previous break caused the broken nose, or, even more strangely, that the punch in the nose \\\"aggravated\\\" a previous nose injury.\\nNo aggravation, precipitation or acceleration exists here. Plainly and simply, this is a work-connected trauma to the right eye. If this claimant did in fact have a \\\"preexisting condition,\\\" the injuries to his eye resulting from the fall were caused exclusively by the trauma and not by an aggravation of the previous condition; and, therefore, NRS 616.50185 is not applicable to the facts of this case.\\nEven the appeals officer found that \\\"[a]ll physicians agree that the June 1994 fall caused the retinal detachment.\\\" This should be enough to rule in the claimant's favor. Further, it is important to note that the appeals officer did not make any findings or conclusions relative to the aggravation, precipitation or acceleration requirement of NRS 616.50185. As a matter of fact, no medical expert was ever even asked if the blow to the eye aggravated or precipitated or accelerated a preexisting condition of the claimant's right eye. The only issue considered by the appeals officer was the second, \\\"primary cause\\\" issue; and the only ruling made by the appeals officer was the totally unsupportable conclusion that \\\"the primary cause of the resulting disability was the weakened condition of the eye that resulted from the prior cataract surgery.\\\" As discussed above, the weakened condition of the eye could not possibly be a \\\"cause\\\" of the damage to the claimant's eye, much less be the \\\"primary cause.\\\" This should end the matter; but, we will discuss briefly the \\\"primary cause\\\" factor as it relates to this case.\\nAs stated the appeals officer neglected to consider the main issue in this case, namely, whether the blow to the claimant's eye could possibly be characterized as aggravating, precipitating or accelerating a \\\"weakened condition\\\" of the eye. As explained above, the blow did not \\\"aggravate\\\" the eye; it caused new and serious damage to the eye.\\nThe appeals officer's decision and the Hilton's arguments focused exclusively on the \\\"primary cause\\\" exception to the statute. Why they ignored the aggravates-precipitates-accelerates portion of the statute is unknown, but clearly the Hilton's reliance on the notion that the weakened eye was the \\\"primary cause\\\" of the injury is misplaced.\\nThe Hilton attempted to have its doctor, Dr. Moore, support its case by asking him the following question: \\\"[I]n your professional opinion do you feel that the industrial injury was the primary cause for the resulting condition and the need for surgery?\\\" Dr. Moore, to his credit, refused to answer, stating that he had a \\\"difficult problem philosophically answering your question.\\\" Dr. Moore's difficulty was with the answer that the Hilton obviously wanted him to give to the question. The Hilton wanted Dr. Moore to say what he could not possibly say, namely, that the \\\"primary cause\\\" of the claimant's detached retina was not that the claimant fell on the right side of his face but, rather, that the primary cause was the \\\"somewhat weakened condition\\\" of the eye. Obviously, Dr. Moore could not have answered the question in the way that the Hilton wanted him to answer it. No doctor, including Dr. Moore, could honestly provide such an answer. If Dr. Moore had given an opinion that the weakened eye condition was the primary cause of the detached retina, we would have to reject it as facially unsupportable by the facts.\\nBecause the trauma occasioned by this claimant's work-connected fall is obviously the cause of the damage to his eye and not a mere aggravation of a preexisting condition, and because the blow to the claimant's eye was clearly the primary cause of the damage to his eye, we reverse the judgment of the trial court and remand the matter with instructions that the trial court grant judicial review, and order that the Hilton honor all claims relating to the trauma to claimant's right eye occasioned by his June 17, 1994 fall.\\nShearing, C. J., and Rose, Young, and Maupin, JJ., concur.\\nNRS 616.50185(1), now codified as NRS 616C.175, provided:\\n1. An employee is not entitled to compensation pursuant to the provisions of this chapter if:\\n(a) He has a preexisting condition from a cause or origin that did not arise out of or in the course of his current or past employment; and\\n(b) He subsequently sustains an injury by accident'arising out of and in the course of his employment which aggravates, precipitates or accelerates his preexisting condition, unless the subsequent injury is the primary cause of the resulting disability.\\nEvidence that the claimant had a contributory preexisting condition is indeed sparse. The only evidence in the record on this point is Dr. Moore's opinion that the retina probably would not have detached had it not been for the previous cataract surgery. None of the other physicians suggested that the cataract surgery was in any way \\\"related to\\\" the claimant's eye damage caused by the trauma.\"}"

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+"{\"id\": \"11790132\", \"name\": \"CHRISTIE ANN RICE, Appellant, v. THE STATE OF NEVADA, Respondent\", \"name_abbreviation\": \"Rice v. State\", \"decision_date\": \"1997-11-20\", \"docket_number\": \"No. 26111\", \"first_page\": 1300, \"last_page\": 1329, \"citations\": \"113 Nev. 1300\", \"volume\": \"113\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T19:29:38.081977+00:00\", \"provenance\": \"CAP\", \"judges\": \"Springer, J., dissented in part.\", \"parties\": \"CHRISTIE ANN RICE, Appellant, v. THE STATE OF NEVADA, Respondent.\", \"head_matter\": \"CHRISTIE ANN RICE, Appellant, v. THE STATE OF NEVADA, Respondent.\\nNo. 26111\\nNovember 20, 1997\\n949 P.2d 262\\nSpringer, J., dissented in part.\\nLaura Wightman FitzSimmons, Las Vegas, for Appellant.\\nFrankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, Terrence P. McCarthy, Deputy District Attorney, Reno, for Respondent.\", \"word_count\": \"13072\", \"char_count\": \"77918\", \"text\": \"OPINION\\nBy the Court,\\nRose, J.:\\nChristie Ann Rice (Christie) and her husband, Cody Alan Rice (Cody) first met in April of 1990. After learning that she was carrying his child, she moved in with him, and they were subsequently married. However, the marriage was strained because Cody was violent and abusive toward Christie. Matthew, Christie and Cody's son, was born on July 1, 1992. Sometime around the middle of September 1992, Cody told Christie that Matthew had been accidentally burned in hot water. Christie tried to treat Matthew's injuries at home. On September 22, 1992, Matthew was rushed to the hospital because he had stopped breathing. He died in the hospital two days later.\\nCody was charged with and pleaded guilty to the first degree murder of Matthew. He was sentenced to life imprisonment without the possibility of parole. Christie was charged with child neglect causing substantial bodily harm to Matthew. Following a jury trial, Christie was convicted and sentenced to serve the maximum term in prison allowed by law, twenty years. Christie now appeals. We affirm the conviction but remand for resentenc-ing.\\nFACTS\\nIn April of 1990, Christie met Cody, and they were engaged in August of 1991. Christie moved in with Cody in January of 1992 when she found out she was pregnant with Matthew, and the two were married in April of 1992. Christie testified that until she moved in with Cody, the two never had any problems.\\nChristie stated that shortly after they moved in together, Cody became physically abusive toward her. However, she did not leave because she loved Cody and believed he would not continue to hurt her because he loved her. Christie's family and friends also testified to Cody's violent, threatening, and explosive behavior toward Christie.\\nMatthew was born on July 1, 1992. Despite Cody's abusive and controlling behavior toward her, Christie testified that she believed he would not hurt Matthew because he was so proud to be a father. Christie testified she could never imagine Cody intentionally hurting Matthew.\\nOn August 21, 1992, Dr. Berkley Powell, a physician in Reno, saw Matthew. Dr. Powell testified that Matthew had a fever, a yellowish, bloody discharge coming from his nose, and was breathing very rapidly. Matthew had also thrown up blood the night before. Matthew was admitted to the hospital and was diagnosed with pneumonia, and he remained in the hospital for approximately a week. During his stay in the hospital, Matthew recovered from the infection but lost almost half a pound.\\nDr. Powell also noticed a bruise above Matthew's nose and his eye. When he asked Christie about it, she said Cody had dropped Matthew, and Matthew's face had struck a coffee table. Dr. Powell's concern prompted him to order a CAT scan and X-rays and call child protective services. The X-rays did not reveal any indications of fractures. Dr. Powell testified that Christie seemed uncomfortable with the questions he asked about Matthew's injuries, and he believed she was covering up for Cody.\\nChild abuse was suspected, and a social worker from Washoe County Child Protective Services was assigned to Matthew's case. The social worker testified that Cody related several inconsistent accounts about Matthew's injuries. Based on twenty-two different factors, the social worker rated the risk of injury to Matthew as low, despite information he received from a family member that Cody had a quick temper.\\nAfter Matthew was released from the hospital, Christie got a job because Cody was not working regularly. When Christie was at work, Matthew was in the care of either Cody or Christie's grandparents. Christie testified that Cody became \\\"very explosive,\\\" volatile, and short-tempered during this time. He quit his job and did not tell Christie. Christie related an incident in which Cody threatened her with a knife, telling her he was going to kill them both so that they would die as a family and nobody could control them any longer. Christie stated that when Cody realized she was holding Matthew, he backed off. She stated she was terrified of Cody by this point.\\nOn September 17, 1992, Cody went to see Christie while she was at work. He told her Matthew had been burned when Cody had been giving Matthew a bath and failed to check the water temperature. Christie could not remember the exact date this incident had happened. Cody told Christie the burns were not bad, just pinkish. Christie told Cody to go home and stay with Matthew. When Christie got home, she looked at Matthew's burns. She testified they were \\\"pink like a sunburn\\\" and reddish in some areas. She bathed Matthew, put ointment on his burns, and dressed them in gauze.\\nChristie told Cody she thought a doctor should see Matthew, but Cody told her no. Cody told her they could treat Matthew's wounds themselves, and if he got worse, then they would take him to a doctor. Christie acquiesced to Cody's demands because she was afraid of what Cody would do to her if she did not, especially because Cody had previously threatened to kill them all. Christie was also worried that social services would take Matthew from her.\\nOn September 18, 1992, a friend of Christie's and Cody's, Lori Smith, visited Cody and Matthew while Christie was at work. Lori saw Matthew lying on his stomach with gauze covering his back and upper arms. She saw no blisters or oozing around the gauze covered area, but noted that when Cody turned Matthew over to change his diaper, he started crying. She asked Cody what happened, and he told her Matthew had been in the bath when the water suddenly got hot and burned him. Lori thought the burns looked bad, so she asked Cody if Matthew had been to the hospital, and Cody replied that he had.\\nIn the early evening of September 22, 1992, Matthew was having trouble breathing. Christie stated that she told Cody she was going to take Matthew to the doctor the next day, and Cody became enraged. The next day at work, Cody called Christie and told her that there was an emergency with Matthew. When Christie got home, Cody was performing CPR on Matthew. They drove Matthew to the hospital.\\nChristie and Cody arrived with Matthew at the emergency room of Saint Mary's Hospital shortly before 5:00 p.m. on September 22, 1992. Shari Quinn, a nurse at the emergency room of Saint Mary's, testified that when Matthew arrived at the hospital, he had no heart or respiratory rate and was subsequently put on life support. Quinn questioned Christie and Cody about the events leading to Matthew's injuries. Quinn testified that Christie told her Matthew had been burned four or five days earlier when the water heater had exploded. Quinn re-entered the emergency room and while moving Matthew, felt fluid from the burn on his back. She stated that when she pulled her hand away from Matthew, her hand had sanguinous fluid and dead skin from the burn on it. She rolled Matthew over and saw a huge burn over most of his back.\\nAnother nurse who treated Matthew assumed when she saw him that he was only four to five weeks old because his weight was so low. Matthew's injuries included a black eye and a small cut under it, noticeable abrasions on his ear and head, burn marks on his hand, a blister on one of his feet, and a large burn on his back covering the majority of the area between his shoulders and buttocks. The burn on Matthew's back was open and cracked, moist and oozing, with the skin flaking away. No ointment or other kind of medical treatment was evident on Matthew at the time he was admitted. Additionally, evidence was presented that Matthew had suffered \\\"tissue wasting\\\" and \\\"muscle wasting,\\\" as evidenced by his buttocks and legs having no plumpness and being almost \\\"to bone.\\\"\\nMatthew was transferred from Saint Mary's to Washoe Medical Center for further treatment, but died on September 24, 1992. The autopsy revealed that in addition to the burns, Matthew had suffered injuries not superficially apparent. These included broken ribs and a severe cranial trauma. Additionally, Matthew's thymus gland had withered. The stated cause of death was blunt injuries to the skull and brain, in combination with the burn wound.\\nDetective Jenkins, a Reno Police detective, was called in by the medical team, and he interviewed Christie. Christie never told him she was afraid of or abused by Cody; however, she did tell Jenkins she had seen Cody very angry on occasions. She also told Jenkins she felt the need to protect her husband and her child and said she had never seen Cody hurt Matthew. Jenkins concluded that Christie, three years older than Cody, was clearly the more mature one and did not seem intimidated by him. In fact, Christie stated that she would leave Cody immediately if he was physically abusive to Matthew or her.\\nChristie also told Jenkins that Matthew had been burned in the shower with Cody. However, detectives found that the various faucets in Cody's and Christie's apartment maintained a consistent temperature, not over 135 degrees. Additionally, testimony was presented which indicated Matthew would have had to have been immersed in water that temperature for nearly one minute to suffer the burns found on him.\\nChristie initially characterized Matthew's burns as pinkish in color with no blistering or other indication of a severe burn. Later in the interview, she told Jenkins that Matthew's blanket was sticking to his burns and that when she removed the blanket, portions of his skin would \\\"literally peel off with the blanket.\\\" She also indicated that the blistering had occurred shortly after the burn trauma.\\nFollowing the investigation of Matthew's death, Cody was charged with first degree murder. Prior to trial, Cody pleaded guilty to this charge and was sentenced to life without the possibility of parole. On October 28, 1992, an indictment was filed alleging that Christie had committed the offense of child neglect causing substantial bodily harm. The State alleged that Christie had caused Matthew to suffer unjustifiable physical pain when she \\\"neglected, delayed or refused to seek appropriate medical treatment for [Matthew's] malnourishment and failure to thrive and for second degree burns [Matthew] received while under the care of [Christie] and/or CODY A. RICE.\\\" The State's theory was that Christie did not seek treatment for Matthew's burns because she was afraid social services would take Matthew away from her. Christie was only charged with neglecting Matthew for the period between September 14 and September 22, 1992.\\nPrior to trial, Christie was evaluated by Dr. Lon Kepit, a clinical psychologist specializing in cases involving battered women. Kepit concluded that Christie's behavior fit the model of a battered woman. Dr. Kepit testified that as a battered woman, Christie would lose sight of her personal boundaries. She would also, therefore, lose sight of boundaries for Matthew and be unable to assess danger accurately.\\nFollowing a jury trial, Christie was convicted of child neglect causing substantial bodily harm. The district court sentenced Christie to twenty years in prison.\\nDISCUSSION\\nThe district court properly instructed the jury concerning the definition of \\\"willfully \\\" as used in NRS 200.508\\nIn Childers v. State, 100 Nev. 280, 680 P.2d 598 (1984), we considered the propriety of giving an instruction defining the word \\\"willfully\\\" as was given in this case. We concluded that the definition was proper to describe the intent needed for the general intent crime of child abuse/neglect.\\nThe instruction was proper. The child abuse statute is a general intent crime. The word \\\"willfully\\\" must be defined in that context. The California courts have long approved the use of this definition of \\\"willfully,\\\" which is taken from the California Penal Code Section 7(1). See, e.g., People v. Atkins, 125 Cal. Rptr. 855, 861 (Cal. App. 1975) (approves use under child abuse statute, California Penal Code Section 273d).\\n(Footnote omitted.) In Smith v. State, 112 Nev. 1269, 927 P.2d 14 (1996), we recently upheld a child abuse and neglect conviction based on NRS 200.508 and held that this statute was not unconstitutionally vague. Child neglect is a general intent crime, and the definition of \\\"willfully\\\" has been approved several times in Nevada and elsewhere. We find no error in its use in this case.\\nThe evidence adduced at trial was sufficient to sustain the conviction\\nFor this court to affirm a conviction, sufficient evidence must be presented to establish the essential elements of each offense beyond a reasonable doubt as determined by a rational trier of fact. Sanders v. State, 110 Nev. 434, 436, 874 P.2d 1239, 1240 (1994). The Ninth Circuit Court of Appeals has stated what evidence is needed to prove child abuse based on delay in seeking medical treatment, and the analysis would be the same for child neglect. Martineau v. Angelone, 25 F.3d 734 (9th Cir. 1994). Martineau states:\\nAppellants contend, and the state concedes, that under the Nevada Supreme Court's ruling, the child abuse conviction can be upheld only if the state proved beyond a reasonable doubt that appellants committed an \\\"omission\\\" \\u2014 i.e. that they \\\"willfully caused or permitted\\\" [the child] to suffer unjustifiable physical pain by delaying in seeking medical care. NRS 200.508 (1977). Appellants argue that even \\\"reviewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found proof of [delay] beyond a reasonable doubt.\\\" Jackson v. Virginia, 443 U.S. 307, 319 (1979). We agree.\\nIn order to prove child abuse based on delay, the state had to prove both (A) that some time passed between [the child's] injuries and appellants' 911 call and attempted CPR and (B) that, during this time, appellants knew (or should have known) that [the child's] injuries were serious enough to require immediate medical attention, yet did nothing.\\nId. at 739 (citing Fabritz v. Traurig, 583 F.2d 697 (4th Cir. 1978)).\\nChristie's defense was that when she noticed the burns, she was going to take the infant to the hospital until Cody objected and said that social services would be called and would take the child from them. Concerned about losing her child and Cody's propensity for violence, she decided that medical assistance was not essential and that she could care for the baby at home. The dissent claims, that at the worst, Christie is guilty of \\\"bad judgment.\\\" However, there is ample evidence from which a jury could conclude that there were observable injuries during the week prior to Matthew's hospitalization that needed medical attention and that the child suffered substantial pain and injury because of the delay in obtaining such care.\\nDr. Ellen Clark, the pathologist who observed the child at the hospital for one and one-half days prior to his death and who conducted the autopsy, stated: \\\"It's my opinion that Matthew Rice was a victim of child abuse which extended over several episodes, certainly from August through his death.\\\" Dr. Clark testified that the child lost a substantial amount of weight from his first hospitalization on August 22 until his second hospitalization on September 22, and that it was readily observable that he was malnourished and extremely underweight. She explained that his weight at the August hospitalization was in the ten to twenty-five percentile of children two months old, but that when he was admitted on September 22, his weight was below the fifth percentile of children three months old. She did acknowledge that some weight loss could have been attributable to the continuing pneumonia Matthew had that caused the August hospitalization.\\nDr. Clark testified that the child had second degree burns from his neck down to the upper part of his buttocks and stated that: \\\"A second degree burn goes deeper into the skin and is characterized by damage to the skin. It's in the form of blistering, and very often skin sloughage or peeling of the skin.\\\" The burns involved approximately twenty-five to thirty percent of the total body surface area, and Dr. Clark stated that burns over this extent of an infant's body are extremely serious and cause a great risk of dehydration and infection without proper medical treatment. Another complication of the burn was that it would be a painful injury, and \\\"it would have disturbed the baby's normal daily functions, including sleeping and eating.\\\"\\nChristie testified that the burn wound was just pinkish for the four or five days Matthew was at home. While she wanted to take the infant to the hospital, she discerned no emergency medical situation. However, this was refuted by several health profession- ais and Lori Smith, the couple's teenage friend. Nurse Quinn testified that upon admission, Matthew's burn wounds were open and secreting sanguinous fluid. Drs. Clark and Bonaldi testified that the blistering would have been observable shortly after the injury and that immediate medical assistance should have been sought. Describing how the second degree burn wound would look during the four days after the injury, Dr. Bonaldi stated:\\n[T]he first day would be very red, lots of blisters. Blisters would begin to rupture the first couple, three days. Then depending on how the burn is treated, those blisters will stick to the skin and further weep. If the blisters are removed this would begin some type of granulation or healing phase by three to four days.\\nChristie admitted that the blistering occurred shortly after the burn and that the blanket was sticking to Matthew's open wounds. Lori Smith stated that the burns looked bad shortly after they had been sustained. When she inquired about seeking medical treatment, Cody lied about having taken the baby to the hospital.\\nThe jury easily could have concluded that from the time the baby was burned four or five days prior to the hospital admission, he was in desperate need of medical assistance for the serious burns and what Dr. Clark described upon admission as his severe malnutrition and \\\"wasted appearance.\\\" Not only could the jurors conclude, from the expert testimony and their own life experiences, that these physical injuries necessitated immediate medical care, but that the pain and disruption in the infant's eating and sleeping habits could not have been overlooked by any reasonable person. As to Christie's assertion that she was afraid of Cody and the possible loss of her child if medical assistance was sought, the jury could have discounted this testimony or believed that Christie has an overriding responsibility to the infant in spite of these possible consequences.\\nThere was more than ample evidence to establish that Christie knew or should have known that the infant was in need of medical care, that she unreasonably delayed in providing it to him, and that the delay caused the infant to suffer unjustifiable physical pain or mental suffering. Therefore, the evidentiary concerns of the Martineau decision were met.\\nThe district court did not err in failing to instruct the jury on the lesser degree of child neglect\\nNRS 200.508 provides that anyone who willfully causes a child to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect is guilty of a gross misdemeanor. But if substantial bodily or mental harm results, the perpetrator is guilty of a felony. The statutory definition of substantial bodily harm set forth in NRS 0.060 states that it is bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or prolonged physical pain.\\nThe indictment charged Christie with causing Matthew to suffer unjustifiable physical and/or mental suffering resulting in substantial bodily harm to the child, a felony. At the trial's conclusion, the jury was instructed on the felony charge, but the lesser included offense of gross misdemeanor child neglect was not included in the instructions nor was it requested by the defense. Christie now claims that the district judge had an obligation to instruct the jury on the lesser included offense notwithstanding her failure to request such an instruction.\\nIn Davis v. State, 110 Nev. 1114, 881 P.2d 657 (1994), we held that a district court need not instruct the jury on a lesser included offense if evidence clearly showed guilt above the lesser offense. In this case, we believe the State introduced sufficient evidence to establish that Christie's four or five day delay in seeking medical treatment resulted in Matthew sustaining prolonged physical pain, thereby falling within the definition of substantial bodily harm. Expert testimony established that the massive burn was extremely painful and a jury could conclude that delaying treatment for four or five days unjustifiably prolonged that pain. Therefore, it was not error to omit giving an instruction on the lesser included offense of gross misdemeanor child neglect.\\nThe district court did not err in permitting evidence of the cause of Matthew's death and then instructing the jury on the limited use of this evidence\\nChristie argues the State improperly introduced evidence of the cause of Matthew's death. Prior to trial, the defense filed a motion in limine seeking exclusion of evidence concerning Matthew's cause of death and injuries that became evident to medical personnel following his admission to the hospital. The defense requested this motion in limine because it was concerned about the prejudice to Christie if evidence was admitted regarding the non-visible injuries as contributing factors to Matthew's death. The defense claimed Christie would essentially be forced to defend herself against allegations of murder, when she was only charged with neglect, based on her knowledge of the bruising on Matthew's face upon his admission to the hospital for pneumonia and his burns days prior to his death.\\nIn a pre-trial ruling, the district judge decided to limit testimony regarding the extent of Matthew's injuries, beyond those specifically referred to in the indictment, the failure to thrive and the second degree burns. The district judge then decided to admit evidence of the cause of Matthew's death only after the State's expert witness, Dr. Clark, testified at length on the subject outside the jury's presence. Judge Adams noted that the court would give strong cautionary instructions to the jury to the effect that Christie was not on trial for the acts Cody committed on Matthew.\\nA pretrial order granting a motion in limine may be modified or reversed at trial. To preserve the issue for appeal, however, the objection must be renewed at trial when the evidence previously ruled inadmissible by the order in limine is offered in evidence. Staude v. State, 112 Nev. 1, 5, 908 P.2d 1373, 1376 (1996). During its opening argument, the State made comments regarding Matthew's injuries discovered by medical personnel upon Matthew's admission to the hospital. However, the defense did not object to these statements. Therefore, the defense waived its right to complain about these comments on appeal.\\nOn the second day of trial, the district court held a hearing outside the presence of the jury to determine what parts of Dr. Clark's testimony would be admitted. The district court allowed Dr. Clark to testify to the full extent of the injuries she observed on Matthew during the two days she treated him prior to his being removed from life support. This included the blistered second degree burns and cranial injuries. Prior to Dr. Clark's testimony, the district judge admonished the jury that Christie was not \\\"charged with causing the death of Matthew . . ., nor . . . with administering any of the injuries which Dr. Clark will discuss in her testimony.\\\" At this point, the defense neither objected to this instruction nor proposed an alternative instruction.\\nGenerally, the failure of a party to propose a limiting instruction bars raising this issue on appeal. Richardson v. State, 91 Nev. 266, 534 P.2d 913 (1975). In Levi v. State, 95 Nev. 746, 749, 602 P.2d 189, 190-91 (1979), this court stated:\\nOnly in exceptional circumstances need the trial court, sua sponte, give such a limiting instruction. For example, in Champion v. State, 87 Nev. 542, 490 P.2d 1056 (1971), the state conceded that a cautionary instruction concerning an addict-informer's testimony was central to the cause, and we found prejudice where no such instruction was given.\\nIn this case, the district court provided the jury with a cautionary instruction with no objection by the defense. Therefore, we conclude the district court did not commit error in instructing the jury as it did.\\nThe prosecutor did not engage in misconduct\\nDistrict courts have a duty to ensure an accused receives a fair trial and must therefore control obvious prosecutorial misconduct sua sponte. Collier v. State, 101 Nev. 473, 477, 705 P.2d 1126, 1128 (1985). \\\"A prosecutor may not argue facts or inferences not supported by the evidence.\\\" Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987).\\nChristie alleges the prosecutor committed several instances of misconduct in his opening and closing argument to the jury. In his opening argument, the prosecutor stated:\\nMs. Quinn went to pick up the infant, who was clad in only a diaper, she placed one hand under his head and the other hand under his lower back. Ladies and gentleman, at that time, even with all her years of experience as a nurse, she felt something so unusual that she had never felt before. She immediately withdrew her hand, and on her hand was skin from infant Matthew Rice because of burns on his back that were so severe, the skin was literally just coming off.\\nShe actually became traumatized herself from this. She went and she washed her hands. She just kept rubbing and rubbing and washing and washing, because it disgusted her so much.\\nChristie asserts this statement constituted misconduct because Ms. Quinn never testified that she reacted in such a manner to Matthew's burns. At trial, Quinn testified she was \\\"extremely shocked\\\" and \\\"stunned.\\\" After showing the doctor Matthew's burned back, she \\\"stepped back out of the picture . . . and just basically got [her] thoughts together.\\\"\\nGenerally, the prosecution has a duty to refrain from making statements in opening arguments that cannot be proved at trial. Riley v. State, 107 Nev. 205, 212, 808 P.2d 551, 555 (1991). \\\"It is proper for the prosecutor to outline his theory of the case and to propose those facts he intends to prove.\\\" Garner v. State, 78 Nev. 366, 371, 374 P.2d 525, 528 (1962). Even if the prosecutor overstates in his opening statement what he is later able to prove at trial, misconduct does not lie unless the prosecutor makes these statements in bad faith. Id. Although Quinn's testimony at trial was not exactly what the State promised, nothing in the record indicates the State's statements were made in bad faith.\\nIn his closing argument to the jury, the prosecutor stated: \\\"Christie Rice, at the age of 22, chose to bring a life, to bring a child into this world. A healthy, beautiful little boy named Matthew was born on July 1st, 1992. 'Matthew' means a gift from the Lord.\\\" The defense objection to the relevancy of this statement was overruled.\\nThe prosecutor also stated in closing that:\\nAnybody who has even scorched themselves with the tip of an iron on your finger or your hand knows the extent of the pain of a burn over several days.\\nWhen the life, not just the pain from the burn but the life of an innocent, defenseless child is at stake, is it even conceivable that the mother of that child would neglect that child's life-threatening injuries because of anything the husband could possibly be threatening her with?\\nAre we willing to accept this as a defense for the failure to protect such a child? .\\nAnd, ladies and gentleman, of course it goes almost without saying that if your baby is suffering from life-threatening dehydration or the possibility of infection, that you must take all steps to prevent not only that from occurring, but that from getting worse. To knowingly permit any of these risks is unconscionable. . . .\\nChristie also objects to a later statement in the prosecution's argument: \\\"No one of us or anyone we can think of would have acted the same and expected their conduct to be excused, to allow this child to suffer.\\\" At that point, the defense objected because the prosecution was misstating the law. The court reminded the jury that the statements of the prosecutor were not statements of law but merely argument.\\nIn Williams v. State, 103 Nev. 106, 109, 734 P.2d 700, 702 (1987), this court concluded that it is improper for the prosecutor to place the jury in the position of the victim. However, in this case, the prosecutor was asking the jurors what they would do if placed in the defendant's position \\u2014 not the victim's. Since the defendant's state of mind and action were the primary issue and the statements had substantial support in the evidence presented, this argument was not improper and did not prejudice the overall fairness of the trial.\\nFinally, Christie objects to the prosecution's statement to the jury that: \\\"Concededly, the State has not opted to attempt to prove that [Christie] committed any of the abuse by direct physical action, but she is guilty of neglect of this child.\\\" Christie complains that this argument \\\"clearly implied that the state could have charged Christie with actually directly abusing Matthew, but chose not to.\\\" We conclude the defense's interpretation of this statement is extreme. Christie suffered no prejudice as a result of the statement, and any possible error that resulted was harmless. Ross v. State, 106 Nev. 924, 928, 803 P.2d 1104, 1106 (1990). The argument was relevant to explain what the State had charged and was obligated to prove.\\nThe district court erroneously sentenced appellant by relying on impermissible evidence\\nThe defense called Nancy Clark, a professional who provided an alternate sentencing report based on interviews with people involved in the case. The district judge asked Clark approximately 100 questions, many of which concerned information the judge obtained from presiding over the criminal proceedings involving Cody Rice or from reading Cody's presentence report. Christie asserts this conduct indicates that in sentencing Christie, the district court judge improperly relied upon information never provided to the defense. In particular, Christie complains about the district judge's professed disbelief that Christie was unaware of Cody's drug and alcohol abuse.\\nNRS 176.156(1) governs the disclosure of presentence reports and states: \\\"The court shall disclose to the district attorney, the counsel for the defendant and the defendant the factual content of the report of the presentence investigation and the recommendations of the division and afford an opportunity to each party to object to factual errors and comment on the recommendations.\\\" In Shields v. State, 97 Nev. 472, 634 P.2d 468 (1981), this court concluded that the trial court's failure to provide the defense counsel with police reports which were contained in the presen-tence report violated NRS 176.156 and deprived the defendant of due process. This due process violation was highlighted by the fact that \\\"the district judge's sentencing decision manifestly was affected by information contained in the reports.\\\" Id. at 473, 634 P.2d at 469.\\nIn this case, the district judge spent quite a bit of time questioning Clark about the credibility of Christie's professed unawareness of Cody's drug and alcohol use. In his questioning of Ms. Clark, it was apparent that the judge was relying on the informa tion furnished by Cody in his presentencing report and sentencing hearing. Repeatedly, the district judge asked how Christie could not have known of Cody's alcohol and drug abuse when Cody's habit and conduct as described by him would have been obvious to anyone. In effect, the judge was accepting Cody's statements of continual and excessive drug use as true and asking Clark to square Christie's professed lack of knowledge of Cody's drug problem with such statements. This was part of the larger inquiry the district judge was making about whether Christie had lied when she testified.\\nA judge should always disclose information he has received from third parties concerning the sentencing of a defendant. Todd v. State, 113 Nev. 18, 931 P.2d 721 (1997). And if it appears from the record that the judge used such material or relied on it, the use of the information is deemed prejudicial if not divulged to the defendant. Id. at 26, 931 P.2d at 726; see also U.S. v. Copeland, 902 F.2d 1046 (2d Cir. 1990) (defendant entitled to opportunity to respond to information considered by sentencing court); U.S. v. DeVore, 839 F.2d 1330 (8th Cir. 1988) (court permitted defendant to review co-defendant's presentence investigation containing co-defendant's version of the robbery). There is no evidence in the record that the defense was provided with a copy of Cody's presentence report or that Christie's attorney stipulated to its use at Christie's sentencing.\\nThe district judge's perception of Christie's veracity was critical. Christie called numerous witnesses at the sentencing hearing who portrayed her as a responsible young adult who had no prior criminal record of any type and would almost certainly do well on probation. The district judge admitted as much.\\nI don't doubt a word of what all your friends and relatives and employers have said about you. By every single account from every source, you are a positive, productive, intelligent, able person. You're a person with good judgment. You're extremely industrious.\\nIn striking contrast to most of the defendants who come before the Court, you don't have any history of drug abuse, alcohol abuse, unemployment. You have a record every parent would hope for their child: an A student, a good employee, a participant in a program for gifted and talented students, a manager of other employees at a young age. In short, a model life.\\nIn viewing Christie's positive life before the birth of her child and the criminal neglect of which she was convicted, the district judge posed the following two extremes: \\\"Either she shouldn't be in prison or [on] probation, just congratulate her for being a nice person and go home, or she should be punished very severely.\\\" The judge later speculated that perhaps Christie knowingly let her child be severely abused by Cody to \\\"take [the child] out of the picture\\\" and remove the \\\"obstacle to the flourishing of her life with her husband.\\\" The judge's opinion of Christie's credibility did in large measure determine whether she received the lightest or the most severe sentence.\\nIn accepting Cody's statements in the presentence report and using them in a critical analysis of whether Christie had fabricated her testimony, the judge apparently came to the conclusion that Christie had lied and that she was partly responsible for the child's death. Cody's presentence report was just as important to Christie as was the police report in the Shields case, and perhaps more so. The prosecutor even referred to Cody's presentence report in his closing argument. Therefore, we believe that since the district court's use and reliance upon Cody's presentence report without providing the defense with a copy constituted prejudicial error, we are compelled to reverse the sentence in this case and remand for resentencing. To eliminate any problem with what the sentencing judge may remember from the sentencing of Cody, the resentencing shall be conducted by another district court judge. Since we conclude that the use of Cody's presen-tence report requires us to reverse this sentence, it is not necessary to consider Christie's remaining claims of error committed at sentencing.\\nCONCLUSION\\nFirst, we conclude that sufficient evidence existed to sustain Christie's conviction for felony child neglect. Second, we conclude that because Christie failed to request an instruction on the lesser offense of gross misdemeanor child neglect, the district court did not err in failing sua sponte to instruct the jury on this lesser offense. Third, we conclude that the use of evidence of the cause of Matthew's death was properly restricted by the instruction given to the jury. Fourth, the prosecutor did not engage in misconduct in the opening and closing arguments. However, we also conclude that the district court relied on impermissible evidence in sentencing Christie. Accordingly, we affirm the conviction of child neglect, but reverse the sentence imposed and remand to the district court for sentencing by another district judge.\\nShearing, C. J., and Young, J, concur.\\nThe following is the instruction given to the jury:\\nThe word \\\"willfully,\\\" when applied to the intent with which an act is done or omitted, as used in my instructions, implies simply a purpose or willingness to commit the act or to make the omission in question. The word does not require in its meaning any intent to violate the law, or injure another.\\nThe Honorable A. William Maupin, Justice, did not participate in the decision of this matter.\"}"

nev/11824444.json

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+"{\"id\": \"11824444\", \"name\": \"RONALD DALE KUYKENDALL, Appellant, v. THE STATE OF NEVADA, Respondent\", \"name_abbreviation\": \"Kuykendall v. State\", \"decision_date\": \"1996-11-07\", \"docket_number\": \"No. 24796\", \"first_page\": 1285, \"last_page\": 1287, \"citations\": \"112 Nev. 1285\", \"volume\": \"112\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T17:49:45.895925+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"RONALD DALE KUYKENDALL, Appellant, v. THE STATE OF NEVADA, Respondent.\", \"head_matter\": \"RONALD DALE KUYKENDALL, Appellant, v. THE STATE OF NEVADA, Respondent.\\nNo. 24796\\nNovember 7, 1996\\n926 P.2d 781\\nDonald Green, Las Vegas, for Appellant.\\nFrankie Sue Del Papa, Attorney General, Carson City; and Brian T. Kunzi, District Attorney, Mineral County, for Respondent.\", \"word_count\": \"828\", \"char_count\": \"5165\", \"text\": \"OPINION\\nPer Curiam:\\nAppellant Ronald Dale Kuykendall entered a plea of guilty to one count of manufacturing a controlled substance, NRS 453.321. Pursuant to former NRS 174.065(3), appellant was entitled to withdraw his plea if the district court sentenced appellant to more than the recommended maximum of ten years under the plea agreement. At the sentencing hearing on December 2, 1992, the district court stated that it disagreed with the handling of the case and with the recommended sentence. The district court stated that it was bound by the plea agreement, but would specifically refuse to grant credit for any of appellant's presen-tence confinement, and sentenced appellant to ten years in the Nevada State Prison. Subsequent to the entry of the judgment of conviction, appellant filed a motion to amend the judgment of conviction to allow credit for presentence jail time in the amount of 162 days. The district court summarily denied the motion by order filed July 7, 1993. This appeal followed.\\nDISCUSSION\\nAppellant contends that he was financially unable to post the bail set by the district court, and that the district court abused its discretion by denying him credit for the time served before sentencing. The parties do not dispute that appellant was held without bail from June 23, 1992, to September 12, 1992, a total of 81 days. After bail was set at $150,000, appellant did not post bail. Appellant remained confined from September 12, 1992, until sentencing on December 2, 1992, an additional 81 days.\\nNRS 176.055(1) provides, in pertinent part: \\\"[Wjhenever a sentence of imprisonment in the county jail or state prison is imposed, the court may order that credit be allowed against the duration of the sentence . . . .\\\" This court has held that NRS 176.055\\nshould also be construed to provide credit for confinement . . . where (1) bail has been set for the defendant and (2) the defendant was financially unable to post the bail. . To provide otherwise would tolerate invidious discrimination based upon a defendant's financial status.\\nAnglin v. State, 90 Nev. 287, 292, 525 P.2d 34, 37 (1974).\\nAs in Anglin, appellant's claim for the 81 days of presentence incarceration due to appellant's financial inability to post bail is based upon the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See Tate v. Short, 401 U.S. 395, 398-99 (1971), and Williams v. Illinois, 399 U.s. 235, 243-44 (1970). We conclude that appellant is entitled to credit for the 81 days of presentence confinement resulting from appellant's financial inability to post bail, and the district court erred in denying appellant's motion for that amount of credit.\\nWe further conclude that the district court erred in denying appellant's motion for credit for the remaining 81 days of tence confinement without bail. It is true that the language of NRS 176.055(1) and Anglin indicates that the award of credit for such presentence confinement is discretionary. Further, even in those states where credit for presentence incarceration is dated by statute, some courts have specifically limited mandatory credit to presentence incarceration due to indigency. See, e.g., Milladge v. State, 900 P.2d 1156, 1160-61 (Wyo. 1995). ever, the California Supreme Court has reached the opposite conclusion, holding that the statute requiring mandatory credit applies to all felony convictions, not only to those in which presentence incarceration occurred as a result of indigency. In Re Kapperman, 522 P.2d 657, 661 (Cal. 1974). Under the California Supreme Court's analysis, the purpose of the statute is to ensure that all time served is credited towards a defendant's ultimate sentence. People v. Riolo, 655 P.2d 723, 726 (Cal. 1983). The Massachusetts Court of Appeals has also concluded that tory credit under the applicable statute must be granted regardless of whether bail was set. Commonwealth v. Grant, 317 N.E.2d 484, 487 (Mass. Ct. App. 1974). The First Circuit Court of Appeals upheld Grant, stating that is nothing whatever irrational about a general rule that pretrial detention time should be credited as a matter of credited as a matter of course....\\\" Beauchamp v. Murphy 37 F.3d 700 707 (1st Cir. 1994).\\nDespite the discretionary language of NRS 176.055(1) we agree with the reasoning of the California Supreme Court that the purpose of the statute is to ensure that all time served is credited towards a defendant's ultimate sentence. Accordingly we con clude that the district court erred in denying appellant's motion for jail time credit for his 81 days of presentence confinement without bail.\\nFor the foregoing reasons we reverse the district court's order denying appellant's motion for jail time credit and remand this case to the district court with instructions to grant appellant jail time credit for 162 days of presentence confinement.\"}"

nev/11824838.json

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+"{\"id\": \"11824838\", \"name\": \"MICHAEL HAMPTON SONNER, Appellant, v. THE STATE OF NEVADA, Respondent\", \"name_abbreviation\": \"Sonner v. State\", \"decision_date\": \"1996-12-20\", \"docket_number\": \"No. 26485\", \"first_page\": 1328, \"last_page\": 1346, \"citations\": \"112 Nev. 1328\", \"volume\": \"112\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T17:49:45.895925+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MICHAEL HAMPTON SONNER, Appellant, v. THE STATE OF NEVADA, Respondent.\", \"head_matter\": \"MICHAEL HAMPTON SONNER, Appellant, v. THE STATE OF NEVADA, Respondent.\\nNo. 26485\\nDecember 20, 1996\\n930 P.2d 707\\nSteven G. McGuire, Public Defender, and James P. Logan, Appellate Deputy Public Defender, Carson City, for Appellant.\\nFrankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District Attorney, and David K. Neidert, Deputy District Attorney, Pershing County, for Respondent.\", \"word_count\": \"6273\", \"char_count\": \"38427\", \"text\": \"OPINION\\nPer Curiam:\\nThis is an appeal from a judgment of conviction of one count of first-degree murder with use of a deadly weapon pursuant to a jury verdict and from a sentence of death. Appellant Michael Hampton Sonner has raised numerous issues pertaining to both the guilt and penalty phases of his trial. We have carefully reviewed each issue and conclude that none has merit. Because Sonner was fairly tried, convicted and sentenced, we affirm.\\nFACTS\\nOn the evening of November 30, 1993, a red sport utility vehicle stopped at the Trinity Truck Stop at the junction of Interstate 80 and Highway 95, twenty-three miles west of Love-lock. After pumping $22.00 worth of gas, the driver left without paying.\\nTrooper Carlos Borland was alerted to what had occurred at the truck stop and eventually halted the red Chevy Blazer near Lovelock. Prior to the stop, the Chevy Blazer and Borland's patrol car both passed Steven and Doyle Anderson. As the Andersons approached the patrol car and the Blazer, Steven Anderson saw Trooper Borland lying on the ground and the Blazer pulling away from the shoulder. The Andersons stopped to help the stricken officer. Another passing motorist, Jerold Burkhart, also saw the Blazer speed away. Burkhart stopped and used Borland's radio to summon help. Borland was transported by ambulance to the Pershing General Hospital emergency room where doctors vainly attempted to stabilize him before he succumbed to a gunshot wound to the head. The Andersons and Burkhart testified that Borland's pistol was still in its holster.\\nOn December 1, 1993, a stolen red Chevy Blazer was found abandoned in Churchill County. Shoe prints were observed leading away from the vehicle in the direction of the Clan Alpine Mountains. A helicopter reconnaissance team eventually saw what appeared to be a campfire several miles from the Blazer. A S.W.A.T. team landed, and a standoff ensued during which Sonner appeared suicidal when he raised his weapon in the direction of the officers in an attempt to draw their fire. The officers fired two shots, and although Sonner was not hit, he dropped his gun and surrendered.\\nAt trial, Sonner never disputed that he killed Trooper Borland. A jury convicted Sonner of first-degree murder with use of a deadly weapon and sentenced him to death. Sonner now appeals the judgment of conviction and imposition of the death penalty.\\nDISCUSSION\\nJury instruction on the authority of the board of pardons\\nSonner contends that the district court erred in instructing the jury that under certain circumstances and conditions the State Board of Pardons Commissioners has the power to modify sentences. Sonner argues that, in his case, the instruction violated his constitutional rights to due process and a reliable sentence because it misled the jury into believing that parole was a future possibility even if it sentenced him to life without possibility of parole. We disagree.\\nThe instruction given in this case is consistent with the dictates of NRS 175.161(7) and, as previously held by this court, is constitutional under both the state and federal constitutions because it does not mislead the jury. See Petrocelli v. State, 101 Nev. 46, 54-56, 692 P.2d 503, 510-11 (1985). The instruction given in this case is identical to the one set forth by this court in Petrocelli. At the time Sonner was sentenced, the instruction was an accurate statement of the law. Moreover, as we observed in Petrocelli, the United States Supreme Court has held that such an instruction \\\"does not run afoul of constraints against arbitrary and capricious sentencing patterns, and that the possibility of commutation is not too speculative of [sic] an element for the jury's consideration.\\\" Id. at 55, 692 P.2d at 510 (citing California v. Ramos, 463 U.S. 992 (1983)). Sonner was not prejudiced by the instruction.\\nAlthough the instruction given in this case accurately represented the law at the time of Sonner's trial, subsequent changes in the law require a modification in the Petrocelli instruction effective immediately. During the 1995 legislative session, Chapter 213 of NRS was amended to prohibit the board of pardons from commuting a sentence of death, or a sentence of life without possibility of parole, to a sentence that would allow parole. 1995 Nev. Stat., ch. 444, \\u00a7 29 at 1360 (codified at NRS 213.085). To comport with this change, the fourth paragraph of the Petrocelli instruction should now read:\\nAlthough under some limited circumstances and conditions the State Board of Pardons Commissioners has the power to modify certain sentences, the law does not allow the Board to change either a death sentence or a sentence of life without the possibility of parole to any lesser or different sentence. Therefore, you are instructed that you may not speculate as to whether the sentence you impose may be changed at a later date.\\nMotion to recuse t\\u00a1ie judge or disqualify the prosecutor\\nSonner contends that the district judge erred when he refused to disqualify the prosecuting attorney or recuse himself because of a prior attorney-client relationship between the judge and the prosecuting attorney, Brent Kolvet. Kolvet had represented the judge in an unrelated matter involving a disgruntled litigant.\\nSonner had the burden of presenting sufficient grounds for the judge's recusal; and this court has always accorded substantial weight to a judge's determination that he can fairly and impartially preside over a case. See Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296, 1299 (1988). However, Sonner produced no evidence of any improper motive or instances of actual bias on the part of the district judge. Moreover, \\\"an allegation of bias in favor or against an attorney for a litigant generally states an insufficient ground for disqualification because 'it is not indicative of extrajudicial bias against a \\\"party\\\" '. \\\" In re Petition to Recall Dunleavy, 104 Nev. 784, 790, 769 P.2d 1271, 1275 (1988) (quoting Gilbert v. City of Little Rock, 722 F.2d 1390, 1398 (8th Cir. 1983)).\\nAdditionally, although Judge Wagner verbally terminated the attorney-client relationship with Kolvet on January 5, 1994 \\u2014 the same day Kolvet was deputized as a deputy district attorney for Pershing County \\u2014 the record reflects that the attorney-client relationship effectively concluded at least 62 days before the verbal discharge on January 5th. On October 29, 1993, Kolvet sent Judge Wagner a letter indicating that the Ninth Circuit had denied rehearing to the litigant who had prompted Kolvet's representation of Judge Wagner. This appears to be the last formal involvement that Kolvet had with Judge Wagner's case. For these reasons, we conclude that the judge properly refused to recuse himself.\\nSonner also contends that Kolvet was not authorized to prosecute him because Kolvet violated state law by representing a criminal defendant while prosecuting Sonner. The argument is without merit. This court previously issued an order in the instant case concluding that because Kolvet and his firm had withdrawn from all representation of criminal defendants, Sonner's motion to disqualify Kolvet was moot. Our order established the law of the case and impliedly acknowledged that Kolvet's conduct had not irreparably tainted the proceedings that occurred during the conflict. The resolution of this issue posed no prejudice to Sonner.\\nMotion for change of venue\\nThe issue of whether to change trial venue is within the sound discretion of the trial court and will not be disturbed unless there is a clear abuse of discretion. Rogers v. State, 101 Nev. 457, 462, 705 P.2d 664, 668 (1985). Additionally, a defendant seeldng a change of venue must present evidence showing the extent of inflammatory pretrial publicity and that such publicity corrupted the trial. Id.\\nDespite Sonner's detailed account of media reports and statistics reflecting bias within the venire, he has utterly failed to demonstrate actual bias on the part of the jury empaneled to decide his fate. Moreover, the jurors assured the district court that they would be fair and impartial in their deliberations. This court previously has upheld the denial of motions for change of venue based upon such assurances even where pretrial publicity has been pervasive. See Ford v. State, 102 Nev. 126, 129, 111 P.2d 27, 30 (1986); Gallego v. State, 101 Nev. 782, 785, 798, 711 P.2d 856, 856, 859 (1985); Kaplan v. State, 96 Nev. 798, 801, 618 P.2d 354, 356 (1985).\\nIn the extensively covered \\\"sex slave\\\" case, Gallego, also tried in a small community, we observed:\\nGiven the realities of our age, it is unlikely that a high-profile criminal defendant will be presented with a venire of uninformed individuals from which to select a jury. Indeed, it is conceded by many jurists that such a panel would least likely provide the considered, enlightened judgment that can best serve the demands of trial.\\nGallego, 101 Nev. at 785, 711 P.2d at 859. We also noted that extensive pretrial media coverage of high-profile criminal cases will likely penetrate every \\\"nook and cranny\\\" of our state capable of hosting such trials. Therefore, the real test in each case is whether jurors who may have harbored preconceived notions of guilt or innocence prior to their call to jury service, can set aside such notions and fairly and impartially render a verdict based upon the trial evidence. See id. at 785-86, 711 P.2d at 859.\\nBecause Sonner was unable to demonstrate actual prejudice resulting from pre-trial publicity, he insists that this court must presume prejudice based upon the facts of his case. The presumed prejudice standard is rarely applicable. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554 (1976). In only one case decided by the United States Supreme Court has the Court determined that prejudice must be presumed based upon pretrial publicity, see Rideau v. Louisiana, 373 U.S. 723 (1963), and there are \\\"only a few additional cases in which relief was granted on the basis of presumed prejudice.\\\" Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir. 1985).\\nIn Rideau, a criminal defendant's videotaped confession of robbery, kidnapping, and murder was broadcast three times by a local television station. These broadcasts were seen by 24,000, 53,000, and 29,000 viewers, respectively, in a community of 150,000. We conclude that none of the pretrial publicity about Sonner's case rises to the level of the publicity that was presumed prejudicial in Rideau. There is simply no basis in the record for impeaching the constitutional quality of Sonner's jury. Accordingly, this issue is without merit.\\nAdmissibility of incriminating statements\\nSonner contends that two incriminating statements should have been excluded from evidence. The first statement was made while Sonner was being transported to Lovelock. After having been advised of his Miranda rights, Sonner stated that Borland came to his vehicle and asked him to get out. Sonner then stated that he was not about to be taken into custody and that he had beaten Borland \\\"to the draw.\\\" Subsequently, Sonner was re-advised of his Miranda rights, and a police officer recorded a \\\"rehashing\\\" of the prior conversation. Sonner contends that the latter statement was made involuntarily.\\nVoluntariness must be reviewed under a standard of the totality of the circumstances in the particular case. Passama v. State, 103 Nev. 212, 214, 735 P.2d 321, 323 (1987). The State has the burden of proving the voluntariness of a confession by a preponderance of the evidence. Stringer v. State, 108 Nev. 413, 418, 836 P.2d 609, 612 (1992). In making this determination, the \\\"mere examination of the confessant's state of mind can never conclude the due process inquiry.\\\" Colorado v. Connelly, 479 U.S. 157, 165 (1986). There must also be some sort of \\\"state action\\\" tending to exploit the confessant's mental state. Id.\\nThe record is devoid of any facts supporting Sonner's contention that he was coerced or manipulated into incriminating himself. Although he apparently was thirsty prior to arriving in Fallon, the record reveals no evidence that the police took advantage of his physical condition. See United States v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990) (fatigue does not automatically render a confession involuntary). In fact, the attending officer was solicitous of Sonner's comfort and properly read Sonner his Miranda rights, which Sonner voluntarily waived. Our review supports the conclusion that Sonner's statement was voluntary.\\nSonner also contends that a second incriminating statement, made while in jail, was involuntarily given in exchange for cigarettes. Although a jail officer refused Sonner's earlier requests for cigarettes in exchange for information, on the date that Sonner made the statement at issue he initiated the conversation and there is no evidence to indicate that he was promised cigarettes in exchange for his statement. Additionally, Sonner was again notified of his Miranda rights and told that his attorney probably would not want him to talk. Sonner nevertheless insisted on speaking.\\nFinally, Sonner's contention that the statement was involuntary because he was suffering from substance withdrawal, is merit-less. There is nothing in the record to indicate that a possible addiction to cigarettes affected his free will as he made the statement. Therefore, we conclude that Sonner's statement while in jail was voluntary.\\nAdmissibility of autopsy photograph and trooper hat\\nSonner challenges the district court's admission of Trooper Borland's hat and autopsy photograph into evidence because he did not dispute that he shot Borland, and the photograph and hat assertedly proved nothing and served only to inflame the jury. We disagree. Sonner pleaded both not guilty and not guilty by reason of insanity. When a defendant pleads not guilty, he puts all the elements of the offense at issue. State v. Foster, 623 P.2d 1360, 1363 (Kan. 1981); see also People v. White, 606 P.2d 847, 849 (Colo. 1980) (photographs providing proof as to matters which have been stipulated to by the defendant are not inadmissible); Sanders v. State, 96 Nev. 341, 343, 609 P.2d 324, 326 (1980) (prosecutor need not stipulate to the existence of any elements of the crime he is attempting to prove if the stipulation will impair the effectiveness of the case). We conclude that the photograph and hat were relevant for the purpose of refuting Sonner's plea and proving the State's case with essential facts relating to Borland's murder. See Dearman v. State, 93 Nev. 364, 369, 566 P.2d 407, 410 (1977).\\nNRS 48.035 provides that evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or confusing the jury. The decision to admit such evidence is within the sound discretion of the trial court. Redmen v. State, 108 Nev. 227, 231-32, 828 P.2d 395, 398 (1992). Although the photograph and the hat graphically illustrated the violence that ended Trooper Borland's life, we conclude that they were not excessively gruesome so as to inflame the passions of the jury or unfairly prejudice Sonner's right to a fair trial. See Clem v. State, 104 Nev. 351, 356, 760 P.2d 103, 106 (1988).\\nRequests for psychological testing\\nOn the eve of trial, after the jury had been empaneled, Sonner moved the district court for leave to perform further testing for organic brain damage to support an insanity defense, even though prior to Sonner's motion, he was examined by three psychiatrists. The district court denied the motion, ruling that further testing was not reasonably necessary for a proper diagnosis of organic brain damage. The court's decision was based in part on an affidavit from a neurologist who felt that subjecting Sonner to additional tests was unnecessary because EEG's and a BAER test taken a few days previously revealed no organic brain damage.\\nSonner contends that he was entitled to the requested tests under NRS 7.135 and that he has a due process right to prove that he was insane at the time he killed Borland, see Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985); Lickey v. State, 108 Nev. 191, 194, 827 P.2d 824, 828 (1992). Although Sonner was entitled to attempt to prove his theory of defense, the law does not require an unlimited expenditure of resources in an effort to find professional support for his theory. Sonner was examined by three psychiatrists; he was thus provided with a reasonable level of expert assistance. See Pertgen v. State, 105 Nev. 282, 284, 774 P.2d 429, 430-31 (1989) (\\\"Nothing in the Ake opinion suggests that a State is constitutionally obligated to provide a defendant as many psychiatrists as it takes to come up with one who will proclaim the defendant insane at the time of his offense.\\\").\\nIn order to obtain testing beyond that provided by the first three psychiatrists, Sonner had to demonstrate a need for such testing. See State v. District Court, 85 Nev. 241, 244, 453 P.2d 421, 423-24 (1969). We conclude that Sonner failed to demonstrate such a need, and, moreover, the affidavit submitted in response to the motion indicated that there was no need for additional testing.\\nDiscovery of the victim's personnel records\\nSonner contends that it was error to deny his motion to discover the victim's personnel records in order to rebut State evidence of Borland's value as a law enforcement officer and an individual. Sonner's claim is allegedly supported by NRS 174.245, Article 1 of the Nevada Constitution, the Sixth and Fourteenth Amendments to the Federal Constitution, and the Brady doctrine. Sonner is wrong.\\nAlthough the State may not withhold evidence favorable to the accused and material to either guilt or sentence, the State is under no obligation to accommodate a defendant's desire to flail about in a fishing expedition to try to find a basis for discrediting a victim. See State v. Blackwell, 845 P.2d 1017, 1021 (Wash. 1993) (\\\"Defense counsel's broad, unsupported claim that the police officers' personnel files may lead to material information does not justify automatic disclosure of the documents.\\\"). As the Washington Supreme Court observed: \\\"A defendant must advance some factual predicate which makes it reasonably likely the requested file will bear information material to his or her defense. A bare assertion that a document 'might' bear such fruit is insufficient.\\\" Id. at 1022; see also People v. Gissendanner, 399 N.E.2d 924, 928 (N.Y. 1979) (\\\"What [the decisions] do call for is the putting forth in good faith of some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grabbing at a straw.\\\").\\nSonner's request was based on nothing more than the assertion of a general right to search for whatever mitigating evidence might be found in Borland's records. Sonner failed to put forth any theory of relevance beyond an unfocused general statement. For example, if Sonner had presented a foundation for believing that Borland had a reputation for being an \\\"aggressive\\\" trooper who, consistent with his reputation, provoked Sonner's action, this might have been sufficient to warrant discovery of corroborating evidence in Borland's file. See Jeffrey F. Ghent, Annotation, Accused's Right to Discovery or Inspection of Records of Prior Complaints Against, or Similar Personnel Records of, Peace Officer Involved in the Case, 86 A.L.R.3d 1170, 1175 (1978). However, the evidence supports no such theory as Borland had not even drawn his weapon when he was gunned down. The district court did not abuse its discretion in denying Sonner's motion for discovery.\\nTestimony during penalty phase\\nSonner demanded that the State produce a state-prison inmate, Billy Ray Farmer, to testify about the consequences of serving a life sentence without the possibility of parole. The district court refused, concluding that the testimony of Farmer was irrelevant. Sonner contends that this ruling violated his due process right to explain to the jury the true meaning of one of the punishments they were to consider, and violated his Eighth Amendment right to a jury capable of a reasoned moral judgment concerning its sentencing options, and whether death, rather than some lesser sentence, ought to be imposed.\\nNRS 175.552(3) provides that, during the sentencing hearing, \\\"evidence may be presented concerning aggravating and mitigating circumstances relative to the offense, defendant or victim and on any other matter which the court deems relevant to sentence, whether or not the evidence is ordinarily admissible.\\\" We conclude that the evidence was irrelevant to the sentence. Additionally, as the district court noted, both sides could probably empty the prison of various people doing life without the possibility of parole, and each one would have a different concept of what that means. This highly tenuous, unsupported, and irrelevant assignment of error is simply without merit.\\nProsecutorial misconduct\\nA. The guilt phase\\nSonner contends that the prosecutor made two comments during closing arguments that constituted indirect references to his failure to take the witness stand and testify on his own behalf. He contends that a third comment constituted an impermissible \\\"law and order\\\" appeal to join with the prosecution. Neither contention has merit.\\nIndirect references to a defendant's failure to testify on his own behalf are constitutionally impermissible. Burke v. Greer, 756 F.2d 1295, 1300-01 (7th Cir. 1985). However, the prosecutor in the instant case made no allusion to Sonner's failure to testify. The prosecutor merely drew the jury's attention to the fact that the facts of record concerning Trooper Borland's murder were undisputed. Sonner's trial strategy was to prove insanity, and his counsel also noted that the essential facts were not in dispute. The prosecutor's argument was proper and did not impinge upon Sonner's Fifth Amendment rights.\\nSimilarly, the prosecutor's plea for justice in accordance with what the criminal justice system requires under the circumstances is not improper argument; neither does it approach in kind the impropriety found by this court in previous cases. See, e.g., Nevius v. State, 101 Nev. 238, 248, 699 P.2d 1053, 1059 (1985) (prosecutor's statement that the State had a \\\"right to have the defendant convicted,\\\" was improper); McGuire v. State, 100 Nev. 153, 158, 677 P.2d 1060, 1064 (1984) (prosecutor's statement that the jury would have no standing to complain if they acquitted the defendant and he raped again, was improper).\\nB. The penalty phase\\nSonner contends that during closing arguments at the penalty phase, the prosecutor improperly commented on Sonner's failure to call his mother as a witness. Sonner argues that the comment improperly shifted the burden of persuasion, violated due process, and constituted plain error.\\nThis court has held that generally, the State may not comment on a defendant's failure to call a witness. Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1105 (1990). We have also recognized an exception to this general rule. In Colley v. State, 98 Nev. 14, 16, 639 P.2d 530, 532 (1982), this court held that it was not improper for the prosecutor to comment on the absence of a witness where the defendant testified concerning an alibi witness and thus opened the door for the prosecution to rebut that testimony with implications concerning the failure of the alibi witness to appear on the defendant's behalf. In the instant case, defense counsel told the jury during opening argument that it would hear from Sonner's mother, who would presumably provide the testi monial support for counsel's factual statements. Although the statement was not evidence, it did constitute factual representations to the jury that never materialized in the form of testimony by the mother.\\nAlthough we need not determine whether the unfulfilled opening statement by defense counsel justified a responsive comment by the State during the penalty phase of trial, we conclude that in any event, the brief comment by the prosecutor does not require remedial action by this court. The harmless comment did not occur during the guilt phase, where the State has the exclusive burden of proving the defendant guilty beyond a reasonable doubt. During the penalty phase, the defendant has the burden of presenting mitigating evidence, if any exists. See Bishop v. State, 95 Nev. 511, 517, 597 P.2d 273, 276 (1979). Therefore, the prosecutor's brief expression of interest in the mother's failure to testify could not have improperly shifted the burden to the defense. This issue is without merit.\\nSonner's comments to the jury\\nSonner contends that the district court should not have allowed him to address the jury during the penalty phase, over his counsel's objections, and request the death penalty because his statements went beyond the scope of that which is permissible.\\nThis court has recognized a defendant's right \\\"to stand before the sentencing authority and present an unsworn statement in mitigation of sentence, including 'statements of remorse, apology, chagrin, or plans and hopes for the future.' \\\" Homick v. State, 108 Nev. 127, 133, 825 P.2d 600, 604 (1992) (quoting DeAngelo v. Schiedler, 757 P.2d 1355, 1358 (Or. 1988)). Moreover, it has been held that this right of allocution may even be used \\\"to plead for maximum punishment in an attempt to achieve some purported good.\\\" DeAngelo, 757 P.2d at 1358.\\nNot only was this \\\"invited error,\\\" but it appears that Sonner's statements were motivated by remorse and fear as to what he might do in the future. As such, his remarks were permissible and we conclude that the district court did not err in permitting Sonner to exercise his right of allocution.\\nConstitutionality of Nevada's death penalty statute\\nSonner first insists that the aggravating factors in NRS 200.033 are vague and fail to narrow the categories of eligible defendants. This court previously has held that \\\"[t]he clearly defined, statutorily required, aggravating circumstances that must be found to exist beyond a reasonable doubt serve to narrow and confine the class of persons against whom the death penalty may apply.\\\" Gallego v. State, 101 Nev. 782, 791, 711 P.2d 856, 862 (1985). Sonner has not provided additional or more persuasive arguments to convince this court to overrule Gallego.\\nSecond, Sonner contends that the use of unspecified, nonstatu-tory aggravating circumstances without instructing the jury as to what is or is not an appropriate aggravating circumstance, renders Nevada's death penalty statute unconstitutionally vague, fails to channel the jury's discretion, and results in cruel and unusual punishment. We disagree.\\nUnder NRS 175.552, evidence may be presented on \\\"any other matter which the court deems relevant to sentence, whether or not the evidence is ordinarily admissible.\\\" This court has held that NRS 175.552 \\\"is not limited to those nine aggravating circumstances outlined in NRS 200.033.\\\" Allen v. State, 99 Nev. 485, 488, 665 P.2d 238, 240 (1983). Additionally, in Gallego we held that \\\"[wjhether such additional evidence will be admitted is a determination reposited in the sound discretion of the trial judge.\\\" 101 Nev. at 791, 711 P.2d at 863. More importantly, however, as noted in Gallego, it is only after a jury has found the existence of statutorily defined aggravating circumstances beyond a reasonable doubt, that a jury may hear and consider other aggravating (and mitigating) evidence that is \\\"relevant to the life of a defendant as a whole person.\\\" Id. at 791, 711 P.2d at 862. Based on these prior decisions, we conclude that it was not improper for the district court to allow the jury to consider evidence outside the categories listed in NRS 200.033.\\nThird, Sonner contends that the death penalty is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Federal Constitution and Article 1, Section 6 of the Nevada Constitution. This court previously has upheld the constitutionality of the death penalty. Bishop v. State, 95 Nev. 511, 517-18, 597 P.2d 273, 276-77 (1979). Sonner has offered nothing to convince us to do otherwise.\\nMandatory review of propriety of death penalty\\nNRS 177.055(2) mandates the review of every death sentence by this court. In conformity with the statutory requirements, and in addition to the issues raised by Sonner and resolved as herein-before discussed, we have determined that each of the aggravating circumstances found by the jury was supported by substantial evidence. Specifically, the record substantially reveals that Sonner (1) killed a law enforcement officer engaged in official duties; (2) committed murder to prevent lawful arrest; (3) & (4) previously was convicted of two distinct crimes of violence; and (5) committed murder while under sentence of imprisonment.\\nMoreover, our careful review of the record has revealed no evidence indicating that Sonner's death sentence was imposed under the influence of passion, prejudice or any arbitrary factor. We therefore hold that the death sentence was not imposed under the influence of any such factors.\\nFinally, having fully considered Sonner as a person, and the gravity and circumstances of his crime, we have concluded that the death sentence he has received is not excessive.\\nCONCLUSION\\nFor the reasons discussed above, we conclude that Sonner was fairly tried, convicted and sentenced. Accordingly, we affirm the judgment entered by the district court in all respects, including the sentence of death.\\nAlthough appellant has indicated that he is also appealing from judgments of conviction on one count of being an ex-felon in possession of a firearm, one count of possession of a stolen vehicle, and one count of resisting a public officer, appellant has failed to address any of these counts in his briefs and argument on appeal. We therefore consider these issues abandoned and will not address them in this opinion.\\nThe district court instructed the jury as follows:\\nInstruction No. 23. Life imprisonment with the possibility of parole is a sentence to life imprisonment which provides that the defendant would be eligible for parole after a period of 10 years. This does not mean that he would be paroled after ten years but only that he would be eligible after that period of time.\\nLife imprisonment without the possibility of parole means exactly what it says, that the defendant shall not be eligible for parole.\\nIf you sentence the defendant to death you must assume that the sentence will be carried out.\\nAlthough under certain circumstances and conditions the State Board of Pardons Commissioners has the power to modify sentences, you are instructed that you may not speculate as to whether the sentence you impose may or may not be changed at a later date.\\nNRS 175.161(7) provided at the time of Sonner's trial that, upon request of either party, the jury must be informed that in cases where life without possibility of parole is a possible penalty, \\\"such penalty does not exclude executive clemency.\\\"\\nThe amendment added a new section to chapter 213, which reads as follows:\\n1. If a person is convicted of murder of the first degree before, on or after July 1, 1995, the board shall not commute:\\n(a) A sentence of death; or\\n(b) A sentence of imprisonment in the state prison for life without the possibility of parole,\\nto a sentence that would allow parole.\\n2. If a person is convicted of any crime other than murder of the first degree on or after July 1, 1995, the board shall not commute:\\n(a) A sentence of death; or\\n(b) A sentence of imprisonment in the state prison for life without the possibility of parole,\\nto a sentence that would allow parole.\\nNRS 213.085.\\nThe fourth paragraph currently reads:\\nAlthough under certain circumstances and conditions the State Board of Pardons Commissioners has the power to modify sentences, you are instructed that you may not speculate as to whether the sentence you impose may be changed at a later date.\\nPetrocelli, 101 Nev. at 56, 692 P.2d at 511.\\nA number of newspaper articles detailed the financial impact of the case on Pershing County; the impact on the victim's family; posthumous honors awarded to the victim; facts adduced at the preliminary hearing, including details of the shooting, ensuing manhunt and arrest, as well as the statement: \\\"When in custody, Sonner confessed to a Nevada Division of Investigation's officer that he had shot Borland;\\\" \\\"attempts\\\" by defense counsel to make sanity an issue; the process and results of evaluations to determine whether Sonner was competent to stand trial; admissions by Sonner concerning other killings; details regarding the nature and extent of police investigation and evidence testing; photographs, including the crime scene, the victim's grieving parents and a memorial site at the location of the alleged shooting; the victim's funeral; Sonner's criminal history, including alleged prison escapes; evaluations of whether Sonner would be able to escape from Pershing County Jail; references to Sonner's efforts to obtain extraordinary relief and a stay in the trial; references to the start and continuation of efforts to select the jury; characterizations of Sonner as \\\"judge, jury and executioner\\\"; and several letters to the editor, one of which characterized Sonner as \\\"the little maggot\\\"; and numerous broadcasts in the electronic media.\\nNRS 7.135 provides:\\nThe attorney or attorneys appointed by a magistrate or district court to represent a defendant are entitled, in addition to the fee provided by law for their service, to be reimbursed for expenses reasonably incurred by him or them in representing the defendant and may employ, subject to the prior approval of the magistrate or district court in an ex parte application, such investigative, expert or other services as may be necessary for an adequate defense.\\nNRS 174.245 provides:\\nUpon motion of a defendant the court may order the district attorney to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, upon a showing of materiality to the preparation of his defense and that the request is reasonable.\\nSonner provides no legal authority to support these contentions.\\nThe prosecutor stated:\\nThat's what occurred on the 30th; facts that are not in dispute in this case. There's been no contradiction of that as being the facts that happened on the 30th.\\nThe prosecutor continued:\\nWhat the defense argues in this case are the experts. You did not hear them argue the facts. You did not hear them apply the facts that occurred when Carlos Borland was shot and murdered. The reason is because the facts clearly do not add up to what they want you to believe.\\nThe prosecutor remarked in conclusion:\\nWe would ask again that you return the verdicts that we've requested of guilty on all counts, including the count of first degree murder in this case.\\nWe ask that the tragedy that's before you not be compounded and that the verdicts reflect the justice that the system requires.\\nSonner's counsel argued:\\nIn this case the burden of proof is on the defense to show that Mr. Sonner was insane under the law at the time that he shot Officer Borland, and we have never disputed any of the allegations about the facts of the criminal charges. We have come into court and presented substantial evidence that he was insane.\\nThe State brought in a parade of witnesses to prove what the defense didn't dispute; and that is the possession of the gun, the car, the shooting and to show you the location of the fires and footsteps and everything else .\\nDuring opening statements, Sonner's counsel stated:\\nYou'll also hear for the first time from Michael's natural mother, Phyllis, a woman who raised \\u2014 if you want to call it that \\u2014 Michael for the first three years of his life, who turned Michael over to his father and basically who had little or any contact over the guidance of Michael following that.\\nDuring closing arguments, the prosecutor made the following comment:\\nWhat is interesting in part is that they had told you at the start of that process that they were going to have the mother of Mr. Sonner testify but she didn't appear. I don't know why, but it's interesting that she didn't take the stand and testify in this case.\\nSonner made the following statement to the jury:\\nFirst, I would like to let the jury know that I have caused a lot of heartache and pain and death; also, to the families and you, my family, I am deeply sorry for all the pain that I have \\u2014 that they have gone through.\\nI know that I have caused and done wrong, but I feel there is \\u2014 there were problems in my head. The psychiatrists, Dr. Foster and Dr. Rosenthal, said or stated that they felt that I had some mental problems. I did not give my lawyers much of a way to work with this case, except for a plea of insanity, and since I am in fact found guilty.\\nPeople need a little lovin', and God it's sad all the hell that they have to go through to find some.\\nI would also like to let you know the pain and anguish in my past and present mind. Ever since it has been getting worse and I know I can't control it, and I would ask you to put me out of my misery.\\nNRS 177.055(2) provides:\\n2. Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be reviewed on the record by the supreme court, which shall consider, in a single proceeding if an appeal is taken:\\n(a) Any errors enumerated by way of appeal;\\n(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;\\n(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor; and\\n(d) Whether the sentence of death is excessive, considering both the crime and the defendant.\"}"

nev/11922446.json

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+"{\"id\": \"11922446\", \"name\": \"DYARELL D. HUNT, Appellant, v. WARDEN, NEVADA STATE PRISON, JOHN IGNACIO, Respondent\", \"name_abbreviation\": \"Hunt v. Warden\", \"decision_date\": \"1995-10-04\", \"docket_number\": \"No. 26495\", \"first_page\": 1284, \"last_page\": 1285, \"citations\": \"111 Nev. 1284\", \"volume\": \"111\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T23:25:45.176759+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DYARELL D. HUNT, Appellant, v. WARDEN, NEVADA STATE PRISON, JOHN IGNACIO, Respondent.\", \"head_matter\": \"DYARELL D. HUNT, Appellant, v. WARDEN, NEVADA STATE PRISON, JOHN IGNACIO, Respondent.\\nNo. 26495\\nOctober 4, 1995\\n903 P.2d 826\\nDyarell D. Hunt, In Proper Person, Carson City, for Appellant.\\nFrankie Sue Del Papa, Attorney General, Carson City, for Respondent.\", \"word_count\": \"526\", \"char_count\": \"3193\", \"text\": \"OPINION\\nPer Curiam:\\nOn October 17, 1994, appellant filed in the district court a post-conviction petition for a writ of habeas corpus. On November 1, 1994, the district court summarily denied appellant's petition. This appeal followed.\\nIn his petition, appellant stated that he is serving a sentence of \\\"life with the possibility of parole three counts running concurrent as habitual criminal.\\\" Appellant further stated that he filed his petition as a challenge to the computation and application of good time credits to his sentence. Finally, appellant argued that \\\"NRS 209.446 mandates that the total good time made must be deducted from the maximum term imposed by the sentence. [Appellant] is not receiving these deductions as mandated by NRS 209.446.\\\"\\nIn denying appellant's petition, the district court stated that it could not determine a basis upon which it could grant the relief sought because appellant did not provide the court with sufficient facts concerning the time, nature or current disposition of his sentence. Our review of the record on appeal reveals that the district court did not err in denying appellant's petition. First, appellant did not provide the district court with sufficient information concerning his judgment of conviction and sentence. Next, it appears that appellant is arguing that good time credits should be applied to his sentence of life in prison with the possibility of parole. NRS 209.446(6)(a) provides that good time credit \\\"[m]ust be deducted from the maximum term imposed by the sentence.\\\" Because appellant was sentenced to a term of life in prison, there is no date from which the credit can be deducted.\\nThe statute does not provide any guidance as to the application of good time credit to a sentence of life in prison. When interpreting a statute, this court resolves any doubt as to legislative intent in favor of what is reasonable, and against what is unreasonable. Oakley v. State, 105 Nev. 700, 702, 782 P.2d 1321, 1322 (1989). A statute should be construed in light of the policy and the spirit of the law, and the interpretation should avoid absurd results. Id. In construing the legislative intent of NRS 209.446, we conclude that the legislature did not intend good time credit to be applied to a sentence of life in prison. However, respondent should continue to record good time credit for those inmates who receive a sentence of life in prison because that sentence may later be modified pursuant to NRS 176.033(2). Respondent is not obligated to apply good time credit to appellant's sentence of life in prison.\\nHaving reviewed the record on appeal, and for the reasons set forth above, we conclude that appellant cannot demonstrate error in this appeal, and that briefing and oral argument are unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert. denied, 423 U.S. 1077 (1976).\\nAccordingly, we affirm the order of the district court.\"}"

nev/11923188.json

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+"{\"id\": \"11923188\", \"name\": \"PENNY ELLENWOOD COOK, Now Known as PENNY ELLENWOOD GREEN, Appellant, v. ROBERT ANTHONY COOK, Respondent\", \"name_abbreviation\": \"Cook v. Cook\", \"decision_date\": \"1995-06-27\", \"docket_number\": \"No. 26360\", \"first_page\": 822, \"last_page\": 830, \"citations\": \"111 Nev. 822\", \"volume\": \"111\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T23:55:51.732925+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PENNY ELLENWOOD COOK, Now Known as PENNY ELLENWOOD GREEN, Appellant, v. ROBERT ANTHONY COOK, Respondent.\", \"head_matter\": \"PENNY ELLENWOOD COOK, Now Known as PENNY ELLENWOOD GREEN, Appellant, v. ROBERT ANTHONY COOK, Respondent.\\nNo. 26360\\nJune 27, 1995\\n898 P.2d 702\\nShelly and Sheehan, Reno, for Appellant.\\nRobert C. Bell, Reno, for Respondent.\", \"word_count\": \"3284\", \"char_count\": \"20502\", \"text\": \"OPINION\\nPer Curiam:\\nPenny Green and Robert Cook are the divorced parents of their minor child, Cassandra (\\\"Cassie\\\"). At the time of their divorce, Penny and Robert agreed that they would share joint legal custody of Cassie and that Penny would retain sole physical custody of the child. Penny has remarried since the divorce and desires to move with her new husband and Cassie to Louisiana. Pursuant to NRS 125A.350, Penny filed a motion seeking the district court's permission to remove Cassie from Nevada to Louisiana. Robert opposed the motion. The district court denied the motion on grounds that Cassie's move to Louisiana would harm her relationship with her father. For the reasons that follow, we reverse and remand with instructions to grant Penny's motion.\\nFACTS\\nCassie was born to Penny Cook, now known as Penny Green, and Robert Cook, in 1987. In 1990, Penny and Robert entered into a joint petition for summary divorce and signed a marital settlement agreement providing the parents with joint legal custody of Cassie and Penny with sole physical custody of the child subject to Robert's reasonable right of visitation.\\nIn 1992, communications between Robert and Penny began to deteriorate when Robert requested that Cassie be allowed to accompany him and his fianc\\u00e9e to England for their wedding. The dispute was ultimately settled in favor of Robert at a conference with the district judge. Since that time, however, the relationship between Robert and Penny has been very strained. Penny, believing that the tension was affecting Cassie, sought professional counseling for her with Dr. Stephanie Dillon.\\nDr. Dillon diagnosed Cassie as being clinically depressed, and related that diagnosis to Penny. Robert was included in the counseling process, but Dr. Dillon concluded that his anger against his ex-wife made it difficult for him to focus on Cassie's problems. To complicate matters, Penny contacted Robert regarding payment for Dr. Dillon's services, thus provoking Robert to anger and a lack of response. From that point on, the antagonism between Penny and Robert has intensified regarding every conceivable issue pertaining to Cassie's well-being.\\nIn March 1993, Robert claimed to have noticed bruising on Cassie's lower body, her upper thighs, her buttocks, and the small of her back. Robert accused Penny's husband, Mr. Green, of physically abusing Cassie and derided the filthy living conditions at the Green household. Robert also claimed that Cassie acknowledged being beaten by Mr. Green, and that Mr. Green had been bathing with her in the nude. Robert said that the child requested that she be allowed to move in with him.\\nIrene McGaughey of the Department of Social Services investigated Robert's claims, however, and concluded that the claims of child abuse were unsubstantiated and that living conditions at the Green home were adequate. Robert nevertheless filed a motion to modify the divorce decree, requesting that physical custody of Cassie be transferred to him. Robert supported his request with the same unsubstantiated allegations that prompted the previous investigation by the Department of Social Services. He also complained that Cassie was often dirty, with rashes around her genital and buttocks areas due to lack of proper hygiene. Moreover, he claimed that the child had developed a chronic vaginal infection. Additionally, he questioned Penny's decision to teach Cassie at home even though Penny never graduated from high school.\\nRobert's motion to modify the divorce decree never proceeded to hearing as the parties stipulated to the withdrawal of the motion in consideration of a modified visitation schedule and agreement that the parties participate in mediation. In 1994, during the mediation process, both Penny and Mr. Green were offered supervisory positions with Boomtown Westbank, a riverboat gambling operation in Harvey, Louisiana.\\nRobert adamantly opposed moving Cassie to Louisiana with Penny and Mr. Green. Penny consequently filed a motion to allow her to move Cassie to Louisiana, and to modify the divorce decree to \\\"grant liberal visitation rights to non-custodial parent\\\" and \\\"to allow a deviation of the non-custodial parent's child support obligation to accommodate cost of transportation of the child to and from visitation.\\\" Robert opposed the motion and renewed his motion to modify the divorce decree. Robert alleged that Penny had stipulated to mediation knowing full well that she planned to move to Louisiana. The Greens, however, claimed to have learned of the opportunity in Louisiana about halfway through the third and fourth mediation sessions.\\nRobert thereafter made another report to the Department of Social Services regarding filth and stench at the Green residence caused by dirty diapers and animal feces. Ms. McGaughey, again visiting the Green home, found Robert's report to be without foundation.\\nPenny's motion to remove Cassie to Louisiana proceeded to hearing. In preparation for the hearing, the district court appointed Earl S. Nielsen, Ph.D., to conduct an independent psychological evaluation of Cassie. At the hearing, Dr. Nielsen testified that Cassie has a strong bond with both her mother and father and fears neither. He testified further that Penny and Robert are \\\"more disparate in their value systems than most couples\\\" and that \\\"the child lives in the middle.\\\" He ultimately opined that because of the constant bickering and fighting between Penny and Robert, the further apart the visitation transitions, and the longer the visitation periods, the better it would be for Cassie. This opinion was based on what Dr. Nielsen referred to as a \\\"transition syndrome,\\\" meaning that Cassie was forced to alter her behavior in the presence of each parent, and that the greater the frequency of this alteration the more harmful it would be for the child. Dr. Dillon was also called to testify and expressed a similar opinion.\\nIn addition to the foregoing experts, Robert called Patrick J. Colletti, M.D., to testify regarding Cassie's vaginal infection, which he had treated. Dr. Colletti testified that Cassie appeared extremely withdrawn during the examination and that he unilaterally chose to call the district judge about his concerns, knowing of the case pending before the court. Moreover, Dr. Colletti expressed his opinion that a move to Louisiana would be very difficult for Cassie. He specifically stated, \\\"I think the child needs to see both parents on a regular basis for a normal relationship to evolve,\\\" and \\\"I think children, if any way could be worked out . . . should have adequate time with both parents to develop a normal parental bond.\\\" Dr. Colletti also commented on photographs depicting bruising on Cassie's back that had been presented to him by Robert. Specifically, Dr. Colletti testified that they were of no medical, legal significance because \\\"they weren't properly done and the child wasn't properly looked at, at that point.\\\"\\nThe district court later issued a written order denying both Robert's motion to modify the divorce decree and Penny's motion to remove Cassie to Louisiana. Relevant portions of the decision appear in Appendix A to this opinion. Suffice it to note here that the district court found both Robert and Penny fit parents who shared an abnormal hostility for each other, and who were insufficiently attuned to the effects of their behavior on Cassie; nevertheless, Cassie had developed a resiliency that enabled her to adjust her approach to the differing attitudes in her father's and mother's homes.\\nThe district court found that one of the critical aspects of Cassie's relationship with her father was the regular and ongoing nature of their relationship. The court also found that Robert had not demonstrated that Cassie was the subject of any abuse or neglect whatsoever. Looking to the child's best interests, the court ruled that Cassie should remain in the primary custody of Penny, reserving to Robert visitation periods of eight consecutive days on a monthly basis and two afternoons of his choice during the remainder of the month.\\nPenny appeals the district court's order denying her motion to remove her daughter to Louisiana.\\nDISCUSSION\\nInterpreting NRS 125A.350, this court has specified factors to be considered when deciding whether a custodial parent should be permitted to move a child out of state. See Schwartz v. Schwartz, 107 Nev. 378, 382-83, 812 P.2d 1268, 1271-72 (1991). The family court or district court, as the case may be, must first reach the threshold issue of \\\"whether the custodial parent has demonstrated that an actual advantage will be realized by both the children and the custodial parent in moving to a location so far removed from the current residence that weekly visitation by the noncustodial parent is virtually precluded.\\\" Id. at 382, 812 P.2d at 1271. If the custodial parent satisfies the threshold requirement, the court must then weigh the following additional factors and their impact on all members of the family, including the extent to which the compelling interests of each member of the family are accommodated: (1) the extent to which the move is likely to improve the quality of life for both the children and the custodial parent; (2) whether the custodial parent's motives are honorable, and not designed to frustrate or defeat the noncustodial parent's visitation rights; (3) whether, if permission to remove is granted, the custodial parent will comply with revised visitation orders issued by the court; (4) whether the noncustodial parent's motives are honorable in resisting permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage regarding ongoing support obligations or otherwise; and (5) whether removal will provide realistic opportunities for the noncustodial parent to have visitation rights that will adequately foster and preserve the noncustodial parent's relationship with the children. Id. at 383, 812 P.2d at 1271-72.\\nWe recently refined our Schwartz decision, summarizing the standard for removal as follows:\\n[A] custodial parent seeking removal does not need to show a significant economic or other tangible benefit to meet the threshold \\\"actual advantage\\\" showing. If the custodial parent shows a sensible, good faith reason for the move, the district court should evaluate the other factors enumerated in Schwartz, focusing on whether reasonable, alternative visitation is possible. If reasonable, alternative visitation is possible, the burden shifts to the noncustodial parent to show that the move is inimical to the children's best interests. . . .\\nWe feel that this allocation of burdens is consistent with the evaluation process enunciated in Schwartz and is the most equitable way of balancing the interests of the children and the noncustodial parent, while giving the custodial parent the right to reasonable freedom to pursue his or her life.\\nJones v. Jones, 110 Nev. 1253, 1266, 885 P.2d 563, 572 (1994).\\nPenny opposes the district court's conclusion that Cassie's loving relationship with Robert is perhaps sufficient under Schwartz to deny her motion. Penny maintains that she met her threshold burden of proving an \\\"actual advantage,\\\" because she and her new husband have been offered supervisory positions in Louisiana at significantly higher salaries. She also contends that the evidence with respect to each of the secondary Schwartz factors is favorable to her position.\\nRobert counters that the district court properly determined that there would be no actual advantage to allowing Penny to move Cassie to Louisiana. This conclusion, argues Robert, is supported by Dr. Nielsen's testimony concerning the special bond that exists between him and his daughter. Robert also insists that his position predominates with respect to the secondary Schwartz factors. Finally, assuming that Penny has met her threshold burden, and that the burden of proof has shifted to Robert, he concludes: (1) that the record establishes that a move to Louisiana would not be in Cassie's best interest, because it would harm Cassie's relationship with him; and (2) that although the investigation by the Department of Social Services did not confirm negative claims against the Greens, the record clearly indicates instances of abuse that should be factored into the equation of Cassie's best interests.\\nWe recently expressed our concern that, despite our decision in Schwartz, many courts are using NRS 125A.350 as a means to chain custodial parents, most often women, to the state of Nevada. See Trent v. Trent, 111 Nev. 309, 315, 890 P.2d 1309, 1313 (1995). Given the legislative purpose behind the statute, \\\"it should not be used to prevent the custodial parent from freely pursuing a life outside of Nevada when reasonable alternative visitation is possible.\\\" Id.\\nAs in other recent cases involving the application of NRS 125A.350, the lower court's reasoning underlying its decision to deny Penny's motion again fails to fully consider the standard set forth in Schwartz, as refined by Jones. Although it is apparent from the record that the father and daughter have a very close relationship, that relationship standing alone, upon which the district court apparently based its ruling, was insufficient to deny Penny's motion. The district court should have first considered the actual advantage threshold, and then evaluated the other Schwartz factors, focusing on whether reasonable, alternative visitation is possible.\\nIn terms of the \\\"actual advantage\\\" threshold, Penny's desire to accept what amounts to a promotion, a higher salary, and a higher standard of living for Cassie is a sensible, good-faith reason to move to Louisiana. Penny therefore met her initial burden of proof. Our assessment with respect to each of the Schwartz secondary issues also favors Penny. First, expert testimony clearly established that the move would greatly lessen the potential for the severe tension between Penny and Robert to adversely impact Cassie. Robert's contentions respecting this issue are unsubstantiated and ignore the facts of record. Second, there is no indication that Penny's motives are other than honorable. Robert's contention that Penny's desire to move to Louisiana was precipitated by his allegations of child abuse and his petition for custody change is unsupported by the facts. Third, there is no indication that Penny will refuse to comply with revised visitation orders. As with the custodial spouse in Jones, Penny has agreed to submit to Nevada jurisdiction over custody matters even after the move. See Jones, 110 Nev. at 1263, 885 P.2d at 570. Fourth, Robert appears to be resisting the move because he does not want to be separated from his daughter. Such a motive is certainly understandable, and bespeaks Robert's love for his daughter, despite the fact that his allegations of child abuse were unsubstantiated and that, as noted by the district court, \\\"Robert seems more concerned about building a case of abuse against his former wife than an honest effort to look to the welfare of his daughter.\\\" Although there is some evidence in the record that justifies Robert's concern about Cassie's well-being, in light of the applicable standard and the evidence belying abuse, those concerns are insufficient to tip the scale in Robert's favor. Fifth, Penny has proposed liberal visitation rights for Robert and has offered to contribute to the cost of transporting Cassie to Nevada.\\nPenny has therefore met her burden under Schwartz and Jones. Furthermore, Robert has failed to present compelling reasons why the move would be adverse to Cassie's best interests. There is no apparent reason why, consistent with the spirit of Schwartz and Jones, an alternative visitation schedule may not be devised by the court that will preserve the loving relationship between father and daughter, and minimize the transitional difficulties that Cassie has faced with frequent moves from one parent's home to the other.\\nOne of the tragic aftermaths of the dissolution of families is that the environmental, physical, and temporal relationships between parents and their children must change in ways that tear at the heartstrings. Until parental commitments to one another and their children become more enduring, the best society can hope for is that parents will suppress feelings of rancor against one another in favor of the future well-being and happiness of their children.\\nIn light of this opinion, other issues raised by Penny need not be addressed.\\nCONCLUSION\\nFor the foregoing reasons, we conclude that the district court abused its discretion in denying Penny's motion to remove Cassie to Louisiana. Accordingly, we reverse and remand with instructions to grant Penny's motion and to establish a liberal visitation schedule and adjusted child support payments that will safeguard and preserve Robert's relationship with his daughter and that are otherwise consistent with the dictates of this opinion.\\nAPPENDIX A\\nThe Court should start out by pointing out that by themselves, both of these people are fit and proper persons to have care, custody and control of their daughter. Cassie is a resilient person who thrives in a loving and compassionate environment and both homes are able to provide such an environment for her.\\nThat finding alone might be fatal under Schwartz to the mother's efforts to move because the Court finds that Cassie has established an important, regular relationship with her father that would be diminished if she were required to visit with her father only on major holidays because of the distance between Reno and Louisiana.\\n. . . [Penny argues] that Cassie will remain in some kind of a figurative \\\"ball mill\\\" if she is required to remain here in Reno, where she would be ground back and forth between her mother's goals, aspirations and fears and those of her father. In fact, this kind of unusual antipathy does exist between the parents of this unfortunate six year old.\\nBy making unsubstantiated reports to the police and social services, Robert seems more concerned about building a case of abuse against his former wife than an honest effort to look to the welfare of his daughter.\\nFor her part, Penny Green seems bent upon minimizing Mr. Cook's importance to his daughter as a shaping force in her life, showing very little sensitivity or insight into the true source of his daughter's distress before, during and after exchanges \\u2014 a child struggling to please two people who, as Stephanie Dillon testified, is 50% her mother and 50% her father. The mother instead points to some nameless dysfunction in the Cook household as the culprit.\\nThese are two people who have an abnormal hostility toward each other \\u2014 abnormal, as Dr. Nielsen testified, even for divorced parents in a custody battle. \\\"Pathological\\\" would not be too strong a word to describe the vested disrespect there [sic] two people have for each other. Cassie has two parents who can't agree on much of anything.\\nThe Court was startled to find that emerging from the ashes of this relationship between her parents is a pretty, precocious, and most of all, a reasonably stable and healthy phoenix of a girl.\\nNot always that way, she was clinically depressed (a rarity for a (then) five year old) until she figured out that she could program herself one way to please her mom and another way to please her dad and, for the most part, remove herself from the center of the storm.\\nNRS 125A.350 reads as follows:\\nIf custody has been established and the custodial parent or a parent having joint custody intends to move his residence to a place outside of this state and to take the child with him, he must, as soon as possible and before the planned move, attempt to obtain the written consent of the other parent to move the child from the state. If the noncustodial parent or other parent having joint custody refuses to give that consent, the parent planning the move shall, before he leaves the state with the child, petition the court for permission to move the child. The failure of a parent to comply with the provisions of the section may be considered as a factor if a change of custody is requested by the noncustodial parent or other parent having joint custody.\"}"

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+"{\"id\": \"12410556\", \"name\": \"THE EDUCATION INITIATIVE PAC, a Nevada Political Action Committee, Appellant, v. COMMITTEE TO PROTECT NEVADA JOBS, a Nevada Nonprofit Company; and ROSS MILLER, in His Official Capacity as the NEVADA SECRETARY OF STATE, Respondents\", \"name_abbreviation\": \"Education Initiative PAC v. Committee to Protect Nevada Jobs\", \"decision_date\": \"2013-01-31\", \"docket_number\": \"No. 61996\", \"first_page\": 35, \"last_page\": 77, \"citations\": \"129 Nev. 35\", \"volume\": \"129\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T21:06:41.575506+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before the Court En Banc.\", \"parties\": \"THE EDUCATION INITIATIVE PAC, a Nevada Political Action Committee, Appellant, v. COMMITTEE TO PROTECT NEVADA JOBS, a Nevada Nonprofit Company; and ROSS MILLER, in His Official Capacity as the NEVADA SECRETARY OF STATE, Respondents.\", \"head_matter\": \"THE EDUCATION INITIATIVE PAC, a Nevada Political Action Committee, Appellant, v. COMMITTEE TO PROTECT NEVADA JOBS, a Nevada Nonprofit Company; and ROSS MILLER, in His Official Capacity as the NEVADA SECRETARY OF STATE, Respondents.\\nNo. 61996\\nJanuary 31, 2013\\n293 P.3d 874\\nDyer, Lawrence, Flaherty, Donaldson & Prunty and Michael W. Dyer, Francis C. Flaherty, and Sue S. Matuska, Carson City, for Appellant.\\nBrownstein Hyatt Farber Schreck, LLP, and Joshua J. Hicks, Las Vegas; Brownstein Hyatt Farber Schreck, LLP, and Sean D. Lytlle and Clark V. Vellis, Reno, for Respondent Committee to Protect Nevada Jobs.\\nCatherine Cortez Masto, Attorney General, and K. Kevin Benson, Deputy Attorney General, Carson City, for Respondent Secretary of State.\\nBefore the Court En Banc.\", \"word_count\": \"6420\", \"char_count\": \"40912\", \"text\": \"OPINION\\nBy the Court,\\nHardesty, J.:\\nIn this appeal, we consider the proper standard of review to be applied when reviewing the adequacy of a ballot initiative's description of effect. Nevada's Constitution permits the Legislature to provide procedures to facilitate the initiative process. In 2005, the Legislature enacted NRS 295.009(l)(b), which requires a ballot initiative to provide in 200 words or less a description of the effect of the initiative. A description of effect serves a limited purpose to facilitate the initiative process, and to that end, it must be a straightforward, succinct, and nonargumentative summary of what the initiative is designed to achieve and how it intends to reach those goals. Given that limited purpose and the 200-word re striction, the description of effect cannot constitutionally be required to delineate every effect that an initiative will have; to conclude otherwise could obstruct, rather than facilitate, the people's right to the initiative process. In reviewing an initiative's description of effect, a district court should assess whether the description contains a straightforward, succinct, and nonargumentative statement of what the initiative will accomplish and how it will achieve those goals. Because we conclude that the description of effect at issue in this case satisfies this requirement, and because the single-subject challenge to the initiative lacks merit, we affirm in part and reverse in part the district court's order invalidating the initiative here.\\nBACKGROUND\\nAppellant, The Education Initiative PAC (El PAC), a Nevada political action committee, seeks to enact a law through Nevada's ballot initiative process to provide a new funding source for the state's public school K-12 education needs. This proposed law, which El PAC entitled \\\"The Education Initiative,\\\" would impose a two-percent margin tax on all Nevada businesses with annual revenue of more than $1 million. After filing the proposed ballot initiative with the Secretary of State, El PAC began circulating petitions to gather the necessary signatures so that the Initiative could be presented to the Legislature in 2013 and, if necessary, be placed on the 2014 general election ballot.\\nRespondent Committee to Protect Nevada Jobs filed a complaint for declaratory and injunctive relief in the First Judicial District Court challenging the Initiative. In its complaint, the Committee sought a declaration that (1) El PAC's Initiative violated NRS 295.009's single-subject rule because it sought to enact a multi-subject law, and (2) its description of effect was misleading in several respects. The Committee asked the district court to enjoin the Secretary of State from presenting the Initiative to the Legislature in 2013 and from eventually placing the Initiative on the 2014 general election ballot.\\nAlthough the district court rejected the Committee's single-subject rule challenge, it found that the Initiative's description of effect was \\\"incomplete, deceptive, [and] misleading.\\\" As a result, the district court granted the Committee's requested relief in part, enjoining the Secretary of State from presenting the Initiative to the Legislature, but rejecting the Committee's request that El PAC be enjoined from continuing to gather petition signatures. This appeal followed.\\nDISCUSSION\\nIf enacted, the Education Initiative would require, among other things, that the margin tax revenues raised under the new law be deposited into the state Distributive School Account, which, in essence, is a subaccount of the State General Fund, NRS 387.030(1), and then be \\\"apportioned among the several school districts . at the times and in the manner provided by [existing] law for the money in the State Distributive School Account.\\\" To understand the arguments raised by the parties to this appeal and this court's legal conclusions, we begin by examining the initiative process before addressing the parties' contentions.\\nNevada's ballot initiative process\\nSince 1912, Nevada's Constitution has secured to the citizens of this state \\\"the power to propose, by initiative petition, statutes and amendments to statutes . . . and to enact or reject them at the polls.\\\" Nev. Const, art. 19, \\u00a7 2(1). The constitution requires the ballot initiative proponent to file a copy of the initiative with the Secretary of State and then gather a required number of signatures from registered voters who likewise support the initiative's ideas. Nev. Const, art. 19, \\u00a7 2(2), (3). Once the required number of signatures are gathered, the proponent must then submit the signatures to the Secretary of State for verification. Nev. Const, art. 19, \\u00a7 2(3). If the Secretary verifies that the required number of signatures has been gathered, the Secretary must transmit the initiative to the Legislature \\\"as soon as the Legislature convenes and organizes\\\" for its next legislative session. Id. At that point, if the Legislature chooses to enact the initiative and the governor ap proves it, the initiative becomes law. Id. If, however, the Legislature rejects the initiative or simply fails to take action on it during the first 40 days of the session, the Secretary must then place the initiative on the next general election ballot, id., which in this case would be in 2014.\\nThe constitution authorizes the Legislature to \\\"provide by law for procedures to facilitate\\\" the people's power to legislate by initiative. Nev. Const, art. 19, \\u00a7 5. Before an initiative can be placed on the ballot, NRS 293.250(5) requires the Secretary of State to prepare an explanation of what the initiative entails, which \\\"must be in easily understood language and of reasonable length.\\\" In addition, the Secretary must appoint two committees, one of which writes arguments advocating passage of the initiative, while the other drafts arguments in opposition to its passage. NRS 293.252(1), (5)(d). Each committee also writes rebuttals to the other committee's argument. NRS 293.252(5)(e). Among other things, each committee's argument and rebuttal \\\"[sjhall address . . . [tjhe fiscal impact of the initiative.\\\" NRS 293.252(5)(f)(l). Once the Secretary approves each committee's argument and rebuttal, they are placed on the sample ballot distributed to the voters before the general election along with the Secretary's explanation of the initiative. NRS 293.097; NRS 293.252(8). Thus, before casting their votes, voters are presented not only with the Secretary's neutral explanation of the initiative, but also with arguments for and against the initiative's enactment prepared by people with an interest in seeing the initiative pass or fail.\\nIn 2005, the Legislature enacted NRS 295.009, the statute at issue in this appeal, which made two key modifications to the initiative process. Specifically, NRS 295.009 sets forth two requirements that the proponent of a ballot initiative must satisfy: (1) the proposed law must embrace only \\\"one subject,\\\" NRS 295.009(l)(a); and (2) when gathering petition signatures, the proponent's petition must include, \\\"in not more than 200 words, a description of the effect of the initiative or referendum if the initiative or referendum is approved by the voters.\\\" NRS 295.009(l)(b). \\\"The description must appear on each signature page of the petition.\\\" Id.\\nTo resolve this appeal, we begin by examining the function of a description of effect in the initiative process and how a court should analyze a description of effect in reviewing a challenge to the sufficiency of this description. We then consider whether the initiative violates the single-subject rule.\\nThe Initiative's description of effect adequately summarizes the Initiative\\nIn determining whether a ballot initiative proponent has complied with NRS 295.009, \\\"it is not the function of this court to judge the wisdom\\\" of the proposed initiative. Nevada Judges Ass'n v. Lau, 112 Nev. 51, 57, 910 P.2d 898, 902 (1996). When a district court's decision to grant declaratory and injunctive relief depends on a pure question of law, our review is de novo. Nevadans for Nevada v. Beers, 122 Nev. 930, 942, 142 P.3d 339, 347 (2006).\\nPursuant to NRS 295.009(l)(b), El PAC included with its petition the following description of effect of its Initiative:\\nThis statutory initiative proposes to impose a 2-percent margin tax on business entities doing business in Nevada. Exemptions include: natural persons not engaged in business; entities with total revenue of $1,000,000 or less; passive entities; Section 501(c) organizations. Margin is the lesser of: (1) 70 percent of entity's total revenue from its entire business; or (2) entity's total revenue from its entire business, minus (at its election) the cost of goods it has sold or amount of compensation it has paid to owners and employees. An entity's taxable margin, against which the tax is imposed, is that part of its margin apportioned to Nevada. Revenues from the tax would be deposited in the State Distributive School Account in the State General Fund, and used for the support of K-12 education. The 2-percent modified business tax now paid by financial institutions would temporarily be increased to 2.29 percent, and potentially to 2.42 percent, to provide money for the Department of Taxation to begin to administer the margin tax. Liability for the margin tax would begin to accrue on January 1, 2014, if the initiative is approved by the Legislature, or January 1, 2015, if approved by voters.\\nRelevant to this appeal, El PAC's description of effect states that the Initiative seeks to impose a new margin tax, describes certain exemptions from the tax, and briefly summarizes how the tax will be calculated. It then provides that the margin tax revenues \\\"would be deposited in the State Distributive School Account in the State General Fund, and used for the support of K-12 education\\\" and notes that the two-percent modified business tax will be temporarily increased to cover initial administrative costs for the margin tax.\\nThis court has previously declared that a description of effect must be \\\" 'straightforward, succinct, and nonargumentative,' \\\" Las Vegas Taxpayer Comm. v. City Council, 125 Nev. 165, 183, 208 P.3d 429, 441 (2009) (quoting Herbst Gaming, Inc. v. Sec'y of State, 122 Nev. 877, 889, 141 P.3d 1224, 1232 (2006)), and it must not be deceptive or misleading. See Stumpf v. Lau, 108 Nev. 826, 833, 839 P.2d 120, 124 (1992), overruled on other grounds by Herbst Gaming, 122 Nev. at 888, 141 P.3d at 1231. However, the description of effect does not need to explain \\\"hypothetical\\\" effects of an initiative. See Herbst Gaming, 122 Nev. at 889, 141 P.3d at 1232. The opponent of a ballot initiative bears the burden of showing that the initiative's description of effect fails to satisfy this standard. See Las Vegas Taxpayer Comm., 125 Nev. at 176, 208 P.3d at 436 (explaining that the party seeking to invalidate the initiative bears the burden of establishing that the initiative is \\\"clearly invalid\\\").\\nIn challenging the Initiative in district court, the Committee argued that El PAC's description of effect was inadequate, both because it failed to include certain information and because the information it did include was misleading. In responding to the Committee's contentions, El PAC argued that, in light of the 200-word limitation imposed on descriptions of effect, it would be impossible to include all of the information that the Committee believed was necessary for inclusion. Moreover, El PAC maintained that the perceived inaccuracies in its description stemmed from an overly technical reading of the information contained therein. The district court agreed with certain assertions made by the Committee and concluded that the description was \\\"incomplete, deceptive, [and] misleading\\\" and invalidated the Initiative on that basis.\\nAs explained below, both the Committee and the district court have misapprehended the function of an initiative's description of effect, which we conclude does not need to mention every possible effect of an initiative. Instead, a description of effect must identify what the law proposes and how it intends to achieve that proposal, all within a 200-word limit. Given this constraint and in light of its statutory function to facilitate the initiative process, a hyper-technical interpretation of the requirements for a description of effect may impede the people from exercising their constitutional right to propose laws and is therefore an inappropriate method for assessing the adequacy of a description of effect.\\nA description of effect serves to broadly inform a petition signer about the initiative\\nWith regard to the function of an initiative's description of effect, in this case, the district court and the parties mistakenly reviewed the description of effect with an eye on hypothetical effects or consequences of the Initiative, without regard for the role that the description of effect serves in the initiative process. This court has recognized that an initiative's description of effect is intended to \\\" 'prevent voter confusion and promote informed decisions.' \\\" Nevadans for Nevada v. Beers, 122 Nev. 930, 939-40, 142 P.3d 339, 345 (2006) (quoting Campbell v. Buckley, 203 F.3d 738, 745-46 (10th Cir. 2000)). Consequently, before circulating an initiative for signatures, the proponents must file it with the Secretary of State. NRS 295.015(1). The Secretary does not evaluate or otherwise assess the description of effect before the proponents begin gathering signatures. Id. Instead, the initiative and the description of effect are made available to the public in their entirety, on the Secretary's website. NRS 295.015(4). During the signature-gathering process, signers, before signing the petition, may read the initiative on the Secretary's website or the copy in the circulator's possession, and/or signers may read the 200-word description of effect, which must be located on each signature page of the petition. NRS 295.009(l)(b); see also Herbst Gaming, 122 Nev. at 888-89, 141 P.3d at 1232 (providing that if a petition signer questioned the meaning of a phrase used in the initiative's title, that question could be resolved by reviewing the actual text of the initiative). Under these circumstances, the legislative purpose of requiring that a description of effect accompany the petitions circulated for signature gathering is achieved by providing a summary that captures what an initiative is designed to achieve and how it intends to reach those goals, albeit within the boundaries of 200 words.\\nThe utility of the description of effect is confined to the preliminary phase of the initiative process, when the proponent seeks to gamer enough initial support so that the initiative will be considered by the Legislature and the voters. Our understanding of the function of a description of effect to facilitate the initiative process is informed by the Legislature's deliberations when it considered whether to adopt NRS 295.009(l)(b) and by the Legislature's decision to limit proponents to describing a proposed initiative in 200 words or less.\\nLegislative deliberations\\nDuring the legislative process for enacting NRS 295.009(l)(b), legislators raised concerns over who would write the description of effect, who would determine its accuracy, and whether it would even be possible to verify the accuracy of a position or opinion presented in the description of effect. Hearing on A.B. 185 and S.B. 224 Before the Senate Legislative Operations and Elections Comm., 73d Leg. (Nev., May 12, 2005). With this in mind, in an initial draft of the bill that would ultimately become NRS 295.009(l)(b), the Legislature considered requiring an initiative petition to contain an \\\"accurate description of the effect of the initiative.\\\" A.B. 185, 73d Leg. \\u00a7 1 (first reprint) (emphasis added) (as discussed by the Senate Legislative Operations and Elections Committee in conjunction with S.B. 224, May 12, 2005). The reasoning behind this initial approach was that the Legislature was concerned with the prospect of people signing initiative petitions without understanding what the initiative really entailed. See Hearing on A.B. 185 Before the Senate Legislative Operations and Elections Comm., 73d Leg. (Nev., May 10, 2005).\\nAs the Legislature assessed how best to address this concern, testimony addressing the proposed legislation highlighted a significant problem with the approach taken in the initial draft of this bill, in that the Legislature could not constitutionally require an accurate forecast of all of an initiative's potential effects in 200 words or less. See Hearing on A.B. 185 Before the Senate Legislative Operations and Elections Comm., 73d Leg. (Nev., May 10, 2005) (statement of John L. Wagner, Burke Consortium of Carson City) (expressing skepticism as to whether a ballot initiative proponent could write an adequate summary in 200 words or less); Hearing on A.B. 185 Before the Assembly Elections, Procedures, Ethics, and Constitutional Amendments Comm., 73d Leg. (Nev., March 29, 2005) (statement of Janine Hansen, President, Nevada Eagle Forum) (discussing the constitution and explaining that \\\"the Legislature should not be making it any more difficult to petition, but [that it should] facilitate that process\\\"). In the end, the Legislature came to a compromise in which it agreed that the initiative's proponent would write the description of effect, it deleted the word \\\"accurate\\\" from the description-of-effect requirement, and it determined that the only means of assessing a description of effect's adequacy would be for someone to challenge it in court. NRS 295.009(l)(b); NRS 295.061(1).\\nThe Legislature, like in other states, could have prohibited a ballot initiative proponent from gathering petition signatures until the proponent receives a pre-approved summary from the state official in charge of elections. See, e.g., Alaska Stat. \\u00a7 15.45.090 (2012) (requiring the lieutenant governor to prepare an \\\"impartial summary\\\"); Cal. Elec. Code \\u00a7 9004, 9008, 9014 (West 2013 Supp.) (requiring the attorney general to prepare a \\\"circulating title\\\" and \\\"summary\\\"); Colo. Rev. Stat. \\u00a7 1-40-105, 1-40-106 (2012) (requiring the secretary of state to convene a \\\"title board,\\\" which prepares a \\\"title\\\" and \\\"submission clause\\\"); Or. Rev. Stat. \\u00a7 250.065, 250.067 (2011) (requiring the attorney general to prepare a \\\"ballot title\\\"); Wash. Rev. Code Ann. \\u00a7 29A.72.060-.090 (West 2005) (requiring the attorney general to prepare a \\\"ballot title\\\" and \\\"summary\\\"). But the Legislature chose instead to allow an initiative's proponent to write the required description and to gather signatures before its adequacy has been determined. This approach makes sense because, under Nevada's Constitution, if an initiative is not adopted by the Legislature and thus moves on for presentation to the voters, the voters have the Secretary of State's official explanation and the required arguments for and against its enactment to review in determining whether to vote in favor of or against the initiative. Thus, once proponents have gathered the necessary signatures to file the initiative with the Secretary of State for verification, the description of effect plays no further role in the remaining initiative process, except perhaps, to assist the committees mandated with preparing the pros and cons for the ballot under the Secretary of State's supervision.\\n200-word limit\\nThe Legislature also chose to restrict the description of effect to a mere 200 words. As El PAC points out, attempting to comply with the district court's findings regarding what must be included in the description of effect is difficult at best given the 200-word limit. Because a proponent can only explain so much in 200 words, El PAC maintains that its description should be deemed adequate because it made a legitimate effort to summarize what it believes to be the Initiative's main components. El PAC's argument to that effect is persuasive.\\nGiven the 200-word limit imposed on these descriptions, they cannot constitutionally be required to explain every detail or effect that an initiative may have. This is especially true where, as here, the actual text of the Initiative is 25 pages in length. To reach a different conclusion would significantly hinder the people's power to legislate by initiative and effectively bar all but the simplest of ballot measures. Indeed, such a restriction would far exceed the Nevada Constitution's grant of authority to the Legislature to \\\"pro vide by law for procedures to facilitate\\\" the people's exercise of the initiative process. Nev. Const, art. 19, \\u00a7 5 (emphasis added); Nevadans for Prop. Rights v. Sec'y of State, 122 Nev. 894, 912, 141 P.3d 1235, 1247 (2006) (indicating that this court \\\"must make every effort to sustain and preserve the people's . . . initiative process\\\").\\nThe Committee's own arguments regarding the multitude of issues it believes must be spelled out in an initiative's description of effect illustrate this point. For example, the Committee argues that the Initiative's description of effect misstates how certain tax revenues generated by the margin tax would be used by stating that \\\"[rjevenues from the tax would be deposited in the State Distributive School Account\\\" without noting that a portion of these funds will be used to fond the Department of Taxation's costs of administrating the tax. We disagree. The description of effect recites that the modified business tax \\\". . . would temporarily be increased . to provide money for the Department of Taxation to begin to administer the margin tax.\\\" This statement recognizes the need for the Initiative to provide the Department of Taxation with enough money to cover the administrative costs of the margin tax. See Nev. Const, art. 19, \\u00a7 6. With the description of effect limited to a mere 200 words, expecting this description to state specifically that a fraction of the revenue generated by the tax will be used for administering the tax would be unreasonable. Moreover, as all statutes enacted by initiative must be self-fonding, the inclusion of this information is wholly unnecessary and its omission does not render the description misleading or incorrect.\\nThe Committee's additional arguments focus on omissions that it believes should have been included in the description of effect, specifically the amount of revenue to be generated by the margin tax, the fact that even unprofitable businesses will be required to pay the tax, the fact that businesses subject to the tax might incur compliance costs, the absence of explanations of the meaning of certain key terms, such as \\\"total revenue\\\" and \\\"cost of goods it has sold\\\" as used in the Initiative, the fact that, if enacted, the law will not be capable of amendment or repeal for at least three years, and an explanation of why the modified business tax might increase from 2.29 percent to 2.42 percent. While this is all in formation that may ultimately be useful for voters, in light of the 200-word limit placed on descriptions of effect, such a level of detail far exceeds what a proponent can constitutionally be required to include in a description of effect. See Nev. Const. art. 19, \\u00a7 5; Nevadans for Prop. Rights, 122 Nev. at 912, 141 P.3d at 1247.\\nMost ballot initiatives will have a number of different effects if enacted, many of which are hypothetical in nature. We have previously rejected the notion that a description of effect must explain \\\"hypothetical\\\" effects. See Herbst Gaming, 122 Nev. at 889, 141 P.3d at 1232. Thus, if we were to give credence to the Committee's application of the description of effect requirement, any opponent of a ballot initiative could identify some perceived effect of an initiative that is not explained by the description of effect, challenge the initiative in district court, and block the people's right to the initiative process. Statutes enacted to facilitate the initiative process cannot be interpreted so strictly as to halt the process.\\nA district court must not apply statutory interpretation principles when examining a description of effect\\nIn addition to its errant belief that a description of effect must highlight every nuance and effect of an initiative, the Committee also maintained that the Initiative's description of effect was misleading with regard to the Initiative's overall impact on education funding. The Committee's argument in this regard was based on the description of effect's following sentence: \\\"Revenues from the tax would be deposited in the State Distributive School Account in the State General Fund, and used for the support of K-12 education.\\\" By using the word \\\"support,\\\" the Committee contended that this sentence suggests to petition signers that margin tax revenues will increase existing education funding. Focusing on what it believed to be a likely outcome of the influx of new education funds from the margin tax enacted by the Initiative, the Committee asserted that the description of effect is misleading because it does not clarify that margin tax revenues may serve only to replace existing education funds if the Legislature chooses to spend the existing funds elsewhere.\\nIn response, El PAC ascribed a more colloquial meaning to the word \\\"support\\\" and maintained that the sentence is accurate: the revenues generated from the margin tax will indeed be deposited in the Distributive School Account and will certainly be used to \\\"support,\\\" or fund, K-12 education. Thus, according to El PAC, because the sentence does not mislead petition signers into believing that funding for education will necessarily increase, its otherwise straightforward, succinct, and nonargumentative description of effect does not need to explain a hypothetical scenario in which the Legislature chooses to reallocate existing funds.\\nThe district court agreed with the Committee. Specifically, it concluded that the margin tax's effect \\\"is to free up funds for the Legislature to use as it wishes, for education or non-education purposes.\\\" Without explaining why the description of effect, as written, is necessarily misleading in this regard, the district court concluded that this effect is \\\"something those being asked to sign the petition should know\\\" and that the description of effect's failure to provide such an explanation renders it \\\"deceptive and misleading.\\\"\\nThe parties' efforts to advance their respective meanings for the word \\\"support\\\" and the district court's conclusion that the description of effect's use of that word is misleading are grounded in the idea that a reviewing court should apply principles of statutory construction in examining information articulated in a description of effect. Given the limited function ascribed to an initiative's description of effect and the fact that these descriptions are relevant only at the early stages of the initiative process, we conclude that it is inappropriate to parse the meanings of the words and phrases used in a description of effect as closely as we would statutory text. Such exacting scrutiny comes at too high a price in that it carries the risk of depriving the people of Nevada of their constitutional right to propose laws by initiative, something this court has expressly stated that it will not do. Nevadans for Prop. Rights, 122 Nev. at 912, 141 P.3d at 1247.\\nWe therefore conclude that, when reviewing a description of effect, the district court must take a holistic approach to determine whether the description is a straightforward, succinct, and nonar-gumentative summary of an initiative's purpose and how that purpose is achieved, Las Vegas Taxpayer Comm. v. City Council, 125 Nev. 165, 183, 208 P.3d 429, 441 (2009), and whether the information contained in the description is correct and does not misrepresent what the initiative will accomplish and how it intends to achieve those goals. Stumpf v. Lau, 108 Nev. 826, 833, 839 P.2d 120, 124 (1992).\\nHere, a review of the description of effect makes clear that the Initiative is designed to provide funding for education, and the Committee itself acknowledges that the margin tax revenues will be used in some way to fund K-12 education. The Committee's attempt to give meaning to the word \\\"support\\\" is founded entirely on a hypothetical scenario that the Committee believes may occur\\u2014that education funding may not increase because the Legislature may choose to use the margin tax revenues to simply replace the existing funds it otherwise would have had to place into the Distributive School Account. The Committee's hypothetical, however, to provide meaning for the word \\\"support\\\" does not provide a valid basis for concluding that the Initiative's description of effect is inadequate.\\nGiven the early stages of the initiative process at which a description of effect is relevant and the fact that these descriptions are, by necessity, merely short summaries detailing what an initiative is designed to achieve and how it will do so, a district court examining a description of effect must determine whether the description provides an expansive view of the initiative, rather than undertaking a hyper-technical examination of whether the description covers each and every aspect of the initiative. To that end, a statutory interpretation-style construction of the description, in which the meaning and purpose of each word and phrase contained in the description of effect are examined, is not appropriate.\\nAs a whole, our review of the Initiative's description of effect reveals that it provides a straightforward, succinct, and nonargu-mentative summary of what the Initiative is designed to achieve\\u2014 raise funds to support Nevada's K-12 public schools\\u2014and how it intends to do so\\u2014enacting a margin tax. The information contained in the description is neither deceptive nor misleading, as it is substantively correct and does not misrepresent what the initiative will accomplish or how it will achieve those goals. As a result, we conclude that the Committee's arguments regarding the description of effect's insufficiency lack merit and, to the extent the district court relied on them to invalidate the Initiative, that conclusion was in error and must be reversed. Nevadans for Nevada v. Beers, 122 Nev. 930, 942, 142 P.3d 339, 347 (2006).\\nThe Initiative complies with NRS 295.009(1) (a)'s single-subject requirement\\nThe final issue that we reach in this appeal concerns the single-subject rule. NRS 295.009(l)(a) requires that a law being proposed by ballot initiative embrace only \\\"one subject and matters necessarily connected therewith and pertaining thereto.\\\" The Legislature has clarified that a ballot initiative satisfies the single-subject requirement when the initiative's proposed parts are \\\" 'functionally related' and 'germane' to each other and the initiative's purpose or subject.\\\" Las Vegas Taxpayer Comm., 125 Nev. at 180, 208 P.3d at 439 (quoting NRS 295.009(2)). Thus, in order to determine whether a ballot initiative's parts are \\\"functionally related\\\" and \\\"germane\\\" to each other and the initiative's purpose, this court must first determine the Initiative's primary purpose. Id.\\nInitiative's primary purpose\\nEl PAC maintains that the purpose of its Initiative is to fund public education. The Committee counters that this is not the Initiative's true purpose, as once the margin tax revenues are deposited into the Distributive School Account, the Initiative does nothing to ensure that they will be used to increase education funding. The Committee posits that the effect of the Initiative may be to provide the Legislature with a larger general fund if it chooses to let the margin tax revenues cover its education funding requirements and uses the funds it would have otherwise been required to provide for education for other purposes.\\nA review of the Initiative substantiates El PAC's stance, as the Initiative expressly provides that the newly generated margin tax revenues must be deposited into the Distributive School Account. Since the Distributive School Account is the account that the Legislature uses to allocate money to cover the State's obligation for funding K-12 education, the Initiative's textual language demonstrates that its purpose is to fund public education. Las Vegas Taxpayer Comm., 125 Nev. at 180, 208 P.3d at 439 (determining a ballot initiative's purpose by considering the initiative's \\\"textual language and the proponents' arguments\\\"). We have little trouble in rejecting the Committee's argument, as it confuses \\\"purpose\\\" with \\\"effect.\\\" The Committee is once again seeking to invalidate the Initiative by using a hypothetical, something we have previously declared to be impermissible. Herbst Gaming, 122 Nev. at 889, 141 P.3d at 1232. The Initiative's primary purpose is clearly to fond education.\\nThe Initiative's parts are functionally related and germane to each other and the Initiative's purpose\\nThe Committee's assertion that the Initiative violates the single-subject rule because it seeks to implement a new margin tax and temporarily increase the existing modified business tax is without merit. As previously explained, El PAC's Initiative is constitutionally required to be self-fonding, see Nev. Const, art. 19, \\u00a7 6, meaning that it must provide the Department of Taxation with enough money to cover its costs of administrating the margin tax. Thus, El PAC's Initiative also seeks to provide the funding that the Department of Taxation will need to administer and enforce the margin tax. To do so, the Initiative provides for a necessary portion of the margin tax revenues to be allocated each year to the Department of Taxation. Once these revenues are allocated, all remaining revenues are to be deposited into the Distributive School Account. Since the Department of Taxation will necessarily incur administrative costs before margin tax revenues start accruing, the Initiative seeks to temporarily increase a different tax, the modified business tax (or \\\"[p] ay roll tax,\\\" see NRS 363A.130), imposed on all Nevada financial institutions. Thus, although the Initiative does seek to implement a new tax and temporarily increase an existing tax, both taxes are functionally related and germane to the Initiative's clear purpose of funding public education. Accordingly, El PAC's Initiative complies with NRS 295.009(l)(a)'s single-subject requirement, and the district court properly rejected this argument.\\nCONCLUSION\\nA description of effect need not articulate every detail and possible effect that an initiative may have. Instead, given that these descriptions are utilized only in the early, signature-gathering phase of the initiative process and that descriptions of effect are limited to 200 words, they need only provide a straightforward, succinct, and nonargumentative summary of what an initiative is designed to achieve and how it intends to reach those goals. Because the description of effect at issue here complied with these requirements, the district court erred in concluding that the Initiative's description of effect was \\\"incomplete, deceptive, [and] misleading\\\" and invalidating the Initiative on that basis. As the Committee's remaining arguments against the Initiative lack merit, we reverse the dis trict court's grant of declaratory relief invalidating the Initiative and its decision to enjoin the Secretary of State from presenting the Initiative to the 2013 Legislature and from placing it on the 2014 general election ballot.\\nPickering, C.J., and Gibbons, Parraguirre, Douglas, Cherry, and Saitta, JJ., concur.\\nA complete copy of the Initiative is attached to this opinion as an addendum.\\nWhile this appeal was pending, El PAC continued to obtain and ultimately submitted more than the required number of voter signatures. The Secretary of State subsequently completed the process of verifying those signatures. Nev. Const, art. 19, \\u00a7 2(3).\\nBecause this appeal required resolution before the 2013 Legislature convened, and since the issues involved are purely legal, both El PAC and the Committee agreed to not file appellate briefs. Thus, all of the arguments that the parties made in the district court\\u2014including those made by the Committee and rejected by the district court\\u2014are de facto before this court. Cf. Ford v. Showboat Operating Co., 110 Nev. 752, 755, 877 P.2d 546, 548 (1994) (recognizing that a party \\\"who is not aggrieved by a judgment need not appeal from the judgment in order to raise arguments in support of the judgment not necessarily accepted by the district court\\\"). Additionally, respondent Secretary of State Ross Miller indicated, in the initial stages of this matter, that he took no position on the merits of the initiative petition at issue in this appeal.\\nEach committee consists of three people, all of whom are appointed by the Secretary. NRS 293.252(1). In making the appointments, the Secretary \\\"shall consider\\\" appointing \\\"[a]ny person who has expressed an interest in serving on the committee.\\\" NRS 293.252(4)(a).\\nBy its terms, NRS 295.009 applies to both initiatives and referendums. Accordingly, the analysis in this opinion is equally applicable in the referendum context.\\nIn Las Vegas Taxpayer Committee, 125 Nev. at 181-82, 208 P.3d at 440, we invalidated a ballot initiative because it violated the single-subject rule. In addition, we considered the initiative's description of effect and agreed with the district court's conclusion that the description was \\\"materially misleading.\\\" Id. at 182-83, 208 P.3d at 440-41. The \\\"materially misleading\\\" standard alluded to in Las Vegas Taxpayer Committee is thus attributable to the district court and is not intended to be part of this court's standard for reviewing descriptions of effect.\\nAlthough NRS 295.009 was enacted into law by Senate Bill 224, most of the Legislature's attention to the description-of-effect requirement comes from .discussions of Assembly Bill 185. Shortly before Senate Bill 224's enactment, the Legislature inserted the desirable portions of Assembly Bill 185 into Senate Bill 224.\\nWe note that the description of effect plainly explains that businesses with annual \\\"revenue\\\" of more than $1 million will be subject to the margin tax. Thus, if only by implication, the description of effect already informs petition signers that unprofitable businesses will be subject to the tax.\\nAt oral argument, the Committee made several unsupported assertions that the Legislature would be legally compelled to reduce its funding of the Distributive School Account in an amount equal to the margin tax revenues deposited therein. Our independent review of the \\\"Nevada Plan,\\\" however, reveals that these assertions are questionable at best. To fulfill its constitutional obligation to fund education, the Legislature created the Nevada Plan, a statutory scheme setting forth the process by which it determines the biennial funding for education. The Nevada Plan assumes certain local money will be \\\"reasonably available\\\" to fund education and envisions funding from three funding sources: local taxes consisting primarily of property taxes, local funds consisting of a portion of the same property taxes and separate sales taxes, and state funds. NRS 387.121; NRS 387.1235(1); NRS 387.195. In addition to financing the State's own share, the Legislature is required to \\\"guarantee\\\" a shortfall in local funds when the local funds are less than projected. NRS 387.121. To be sure, the Nevada Plan does not envision an influx of new revenue being deposited into the Distributive School Account, meaning that it is not entirely clear what the Legislature or the Superintendent of Public Instruction would be authorized to do with the margin tax revenues. By the same token, however, the Nevada Plan's failure to account for a new revenue source means that nothing in the current Plan compels the Legislature to reduce its \\\"guarantee\\\" in the manner suggested by the Committee.\\nTo the extent that the district court rejected certain arguments by the Committee pertaining to the description of effect, we affirm the district court's determination.\"}"

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+"{\"id\": \"12411668\", \"name\": \"HALCROW, INC., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK; and THE HONORABLE ELIZABETH GOFF GONZALEZ, District Judge, Respondents, and PACIFIC COAST STEEL; and CENTURY STEEL, INC., Real Parties in Interest\", \"name_abbreviation\": \"Halcrow, Inc. v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark\", \"decision_date\": \"2013-06-27\", \"docket_number\": \"No. 60194\", \"first_page\": 394, \"last_page\": 403, \"citations\": \"129 Nev. 394\", \"volume\": \"129\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T21:06:41.575506+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before the Court En Banc.\", \"parties\": \"HALCROW, INC., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK; and THE HONORABLE ELIZABETH GOFF GONZALEZ, District Judge, Respondents, and PACIFIC COAST STEEL; and CENTURY STEEL, INC., Real Parties in Interest.\", \"head_matter\": \"HALCROW, INC., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK; and THE HONORABLE ELIZABETH GOFF GONZALEZ, District Judge, Respondents, and PACIFIC COAST STEEL; and CENTURY STEEL, INC., Real Parties in Interest.\\nNo. 60194\\nJune 27, 2013\\n302 P.3d 1148\\nBackus Carranza & Burden and Leland Eugene Backus and Shea A. Backus, Las Vegas; Lloyd, Gray, Whitehead & Monroe, P. C., and E. Britton Monroe and Bums L. Logan, Birmingham, Alabama, for Petitioner.\\nGordon & Rees, LLP, and Robert E. Schumacher, Las Vegas; Procopio, Cory, Hargreaves & Savitch, LLP, and Scott R. Omo-hundro, Craig A. Ramseyer, and Timothy E. Salter, San Diego, California, for Real Party in Interest Pacific Coast Steel.\\nHutchison & Steffen, LLC, and Michael K. Wall, James H. Randall, L. Kristopher Rath, and Cynthia G. Milanowski, Las Vegas; Koeller, Nebeker, Carlson & Haluck, LLP, and Megan K. Dorsey and Robert C. Carlson, Las Vegas, for Real Party in Interest Century Steel, Inc.\\nWatt, Tieder, Hoffar & Fitzgerald, LLP, and David R. Johnson and Jared M. Sechrist, Las Vegas, for Amicus Curiae Tishman Construction Corporation of Nevada.\\nBefore the Court En Banc.\\nThe Honorable Kristina Pickering, Chief Justice, voluntarily recused herself from participation in the decision of this matter.\", \"word_count\": \"3167\", \"char_count\": \"20780\", \"text\": \"OPINION\\nBy the Court,\\nSaitta, J.:\\nIn this opinion, we address whether the economic loss doctrine applies to bar a claim alleging negligent misrepresentation against a structural steel engineer on a commercial construction project. We exercise our discretion to review this petition for extraordinary writ relief, as our intervention will help resolve related future litigation by addressing an important legal issue, which our decision in Terracon Consultants Western, Inc. v. Mandalay Resort Group, 125 Nev. 66, 206 P.3d 81 (2009), left open. Ultimately, we conclude that the economic loss doctrine bars negligent misrepresentation claims against commercial construction design professionals where the recovery sought is solely for economic losses.\\nPROCEDURAL HISTORY AND FACTS\\nThis original proceeding stems from the construction of, and subsequent litigation regarding, the Harmon Tower (the Harmon) located within CityCenter, a mixed-use urban development in Las Vegas owned and developed in part by MGM Mirage Design Group. MGM retained an architectural firm and a general contractor, Perini Building Company, Inc., to assist in the project's development. The architectural firm retained petitioner Halcrow, Inc., to design the Harmon's structure, prepare drawings, and perform ongoing structural engineering services, including observations and inspections, throughout the construction of multiple structures in CityCenter. Perini hired real party in interest Century Steel, Inc., to provide the steel installation. Following the construction of a portion of the Harmon, Century assigned its assets, including the contract for the Harmon, to real party in interest Pacific Coast Steel (PCS).\\nAll parties agree that Halcrow had no contract with PCS, Century, or Perini. Nonetheless, pursuant to PCS's and Century's contractual obligations to Perini, they were required to follow Hal-crow's design and specifications for installing reinforcing steel in the Harmon. Problems arose when defects were discovered relating to the reinforcing steel's installation.\\nAfter construction was stopped on the Harmon, Perini filed a complaint against MGM for allegedly failing to make timely payments. MGM filed a counterclaim against Perini for the alleged reinforcing steel defects and other nonconforming work on the Har mon. Perini then filed a third-party complaint against Century and PCS, among others, asserting claims for contractual indemnity. Century and PCS in turn filed their own third- and fourth-party complaints against several entities, including Halcrow, alleging claims for negligence, equitable indemnity, and contribution and apportionment, and seeking declaratory relief.\\nHalcrow filed a motion to dismiss Century's and PCS's third- and fourth-party complaints for failure to state a claim on which relief can be granted, based on this court's holding in Terracon Consultants Western, Inc. v. Mandalay Resort Group, 125 Nev. 66, 206 P.3d 81 (2009). Halcrow argued that Terracon bars unintentional tort claims against design professionals in commercial construction projects when the claimant incurs purely economic losses. The district court granted Halcrow's motion and dismissed Century's and PCS's claims for negligence, indemnity, contribution, and declaratory relief.\\nPCS then sought leave to amend its third-party complaint in order to include a cause of action for negligent misrepresentation. Century followed suit and filed a motion for leave to amend its fourth-party complaint against Halcrow and others, to allege a claim for negligent misrepresentation. Halcrow filed an opposition to Century's and PCS's motions to amend their complaints, arguing that Terracon did not carve out an exception to the economic loss doctrine for negligent misrepresentation claims, and thus, PCS and Century should not be permitted to maintain such claims. Century and PCS on the other hand argued that Halcrow owed them a duty to act with reasonable care, pursuant to the Restatement (Second) of Torts section 552, in communicating information to Century and PCS about the steel installation. Specifically, they alleged that Halcrow failed to conduct timely inspections in accordance with its representations that inspections would take place and erroneously stated that on-site adjustments would alleviate errors in its plans. Century and PCS therefore contended that as a result of their foreseeable reliance on Halcrow's false representations regarding the steel installation inspection and correction process, Halcrow could be held liable for negligent misrepresentation.\\nFollowing a hearing, the district court granted the motions to amend but stayed the proceedings pending resolution of the legal issues by this court. This petition for extraordinary writ relief followed.\\nDISCUSSION\\nWrit of mandamus\\nA writ of mandamus is available to compel the performance of an act that the law requires as \\\"a duty resulting from an office, trust or station.\\\" NRS 34.160. Mandamus relief may also be proper \\\"to control an arbitrary or capricious exercise of discretion.\\\" Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). Mandamus is an extraordinary remedy, and we have full discretion to determine whether a petition will be considered. Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008). Writ relief will not be available when an adequate and speedy legal remedy exists. NRS 34.170. \\\"Whether a future appeal is sufficiently adequate and speedy necessarily turns on the underlying proceedings' status, the types of issues raised in the writ petition, and whether a future appeal will permit this court to meaningfully review the issues presented.\\\" D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 474-75, 168 P.3d 731, 736 (2007); see also Smith v. Eighth Judicial Dist. Court, 113 Nev. 1343, 1344-45, 950 P.2d 280, 281 (1997) (indicating that this court will consider a petition challenging an order denying motions to dismiss when an important issue of law needs clarification and considerations of sound judicial economy and administration militate in favor of granting the petition).\\nWe exercise our discretion to consider this petition because the legal issue of whether a negligent misrepresentation tort claim may be maintained against a design professional in a commercial construction setting is one of first impression in Nevada and the issue has resulted in split decisions in Nevada state and federal district courts such that our clarification of this important issue now will promote sound judicial economy and administration. D.R. Horton, Inc., 123 Nev. at 474-75, 168 P.3d at 736.\\nThe district court acted arbitrarily and capriciously in granting leave to amend in order to plead negligent misrepresentation\\nNRCP 15(a) provides that leave to amend a complaint shall be \\\"freely given when justice so requires.\\\" However, leave to amend should not be granted if the proposed amendment would be futile. See Allum v. Valley Bank of Nev., 109 Nev. 280, 287, 849 P.2d 297, 302 (1993). A proposed amendment may be deemed futile if the plaintiff seeks to amend the complaint in order to plead an impermissible claim. See Soebbing v. Carpet Barn, Inc., 109 Nev. 78, 84, 847 P.2d 731, 736 (1993).\\nNegligent misrepresentation and the economic loss doctrine\\nIn Terracon, we held that the economic loss doctrine applied to preclude a plaintiff from asserting professional negligence claims against design professionals when the plaintiff sought to recover purely economic losses in a dispute concerning commercial construction. Specifically, we concluded that:\\nin a commercial property construction defect action in which the plaintiffs seek to recover purely economic losses through negligence-based claims, the economic loss doctrine applies to bar such claims against design professionals who have provided professional services in the commercial property development or improvement process.\\n125 Nev. at 80, 206 P.3d at 90. In so holding, we explained that the economic loss doctrine is intended to mark ' ' 'the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby [generally] encourages citizens to avoid causing physical harm to others.' \\\" Id. at 72-73, 206 P.3d at 86 (alteration in original) (quoting Calloway v. City of Reno, 116 Nev. 250, 256, 993 P.2d 1259, 1263 (2000), overruled on other grounds by Olson v. Richard, 120 Nev. 240, 241-44, 89 P.3d 31, 31-33 (2004)). We further explained that application of the doctrine protects parties from unlimited economic liability, which could result from negligent actions taken in commercial settings. Id. at 74, 206 P.3d at 86-87.\\nIn this case, Halcrow contends that the clear and explicit holding in Terracon bars all negligence-based claims, including negligent misrepresentation. It further argues that numerous courts have refused to exempt negligent misrepresentation claims from the economic loss doctrine in cases of large commercial construction projects. In contrast, PCS and Century argue that Terracon left open the question of whether negligent misrepresentation may be an appropriate exception to the economic loss doctrine. Further, both PCS and Century argue that negligent misrepresentation should be adopted as an exception to the economic loss doctrine because it would not lead to the type of unlimited liability that the doctrine seeks to avoid. They maintain that the Restatement (Second) of Torts section 552 (1977) imposes on design professionals a duty of care, separate and apart from any duties arising from Halcrow's contract with the architectural firm, and because Hal-crow breached that duty by negligently misrepresenting that it inspected and made corrections to the steel work, thus causing Century and PCS financial damages, they should be permitted to amend their complaints to assert negligent misrepresentation. We disagree.\\nAlthough Terracon recognized that exceptions to the economic loss doctrine exist, it answered only the specific question of whether the doctrine applied to preclude professional negligence claims against design professionals who provided services in the commercial property development and improvement process, when the plaintiff sought purely economic losses. In this case, Century's and PCS's proposed amended complaints include a cause of action for negligent misrepresentation, based on Halcrow's alleged misrepresentations that it would inspect and make appropriate on-site adjustments to the steel installation, and on which representations Century and PCS allege they relied. Terracon did not address whether the economic loss doctrine applied to bar plaintiffs from asserting such claims, and we resolve that question now.\\nWe have previously adopted section 552 of the Second Restatement of Torts in upholding a claim for negligent misrepresentation. That section provides:\\n\\\"One who, in the course of his business, profession or employment, or in any other [trans]action in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.''\\nBill Stremmel Motors, Inc. v. First Nat'l Bank of Nev., 94 Nev. 131, 134, 575 P.2d 938, 940 (1978) (quoting Restatement (Second) of Torts \\u00a7 552 (1977)). Section 552 provides that in situations where only pecuniary loss results, liability for negligent misrepresentation is not based on general duty rales, but instead, on a \\\"restricted rale of liability.\\\" Restatement (Second) of Torts \\u00a7 552 cmt. a (1977). Liability is only imposed on a party who has supplied false information, where that information is for the guidance of others and where the party knows that the information will be relied upon by a foreseeable class of persons. Id. cmt. b.\\nIn Terracon, we left open the door for exceptions to the economic loss doctrine for negligent misrepresentation claims \\\"in [a] certain category] of cases when strong countervailing considerations weigh in favor of imposing liability.\\\" 125 Nev. at 73, 206 P.3d at 86. Liability is proper in cases where there is significant risk that \\\"the law would not exert significant financial pressures to avoid such negligence.\\\" Id. at 76-77, 206 P.3d at 88. These types of cases encompass economic losses sustained, for example, as a result of defamation, intentionally caused harm, negligent misstatements about financial matters, and loss of consortium. Barber Lines A/S v. M/V Donau Maru, 764 F.2d 50, 56 (1st Cir. 1985) (citing numerous exceptions to the economic loss doctrine that have been accepted by courts). However, in the context of commercial construction design professionals, negligent misrepresentation claims do not fall into such a category because \\\"contract law is better suited\\\" for resolving such claims. Terracon, 125 Nev. at 77, 206 P.3d at 89. Further, in commercial construction situations, the highly interconnected network of contracts delineates each party's risks and liabilities in case of negligence, which in turn \\\"exert significant financial pressures to avoid such negligence.\\\" Id. at 77, 206 P.3d at 88.\\nAdditionally, complex construction contracts generally include provisions addressing economic losses. See Terracon, 125 Nev. at 78, 206 P.3d at 89. Therefore, the parties' \\\"'disappointed economic expectations' \\\" are better determined by looking to the parties' intentions expressed in their agreements. Id. at 79, 206 P.3d at 90 (quoting Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 374 S.E.2d 55, 57-58 (Va. 1988)). This is further supported by the fact that design professionals supply plans, designs, and reports that are relied upon to create a tangible structure; the ultimate quality of the work can be judged against the contract. See id. at 79, 206 P.3d at 90; see also Fireman's Fund Ins. Co. v. SEC Donohue Inc., 679 N.E.2d 1197, 1202 (Ill. 1997). The drawings, reports, and on-site instructions are \\\"incidental to a tangible product.'' Fireman's Fund Ins. Co., 679 N.E.2d at 1202; see also Kuhn Constr. Co. v. Ocean & Coastal Consultants, Inc., 844 F. Supp. 2d 519, 527-28 (D. Del. 2012). Thus, requiring parties that are not in direct privity with one another but involved in a network of interrelated contracts to rely upon that network of contracts ensures that all parties to a complex project have a remedy and maintains the important distinction between contract and tort law. See Calloway v. City of Reno, 116 Nev. 250, 256, 993 P.2d 1259, 1263 (2000), overruled on other grounds by Olson v. Richard, 120 Nev. 240, 241-44, 89 P.3d 31, 31-33 (2004).\\nIn Terracon, we concluded that a design professional's duty to a party with whom it contracted is set forth in the contract, and \\\"any duty breached arises from the contractual relationship only.\\\" 125 Nev. at 79, 206 P.3d at 90 (emphasis added). Based on the foregoing discussion, we see no reason to limit our conclusion in Terracon by imposing the extracontractual duty described in section 552 of the Second Restatement of Torts. See Leis Family Ltd. P'ship v. Silversword Eng'g, 273 P.3d 1218, 1224-25 (Haw. Ct. App. 2012); 2314 Lincoln Park W. Condo. Ass'n v. Mann, Gin, Ebel & Frazier, Ltd., 555 N.E.2d 346, 353 (Ill. 1990); Indianapolis-Marion Cnty. Pub. Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722, 738 (Ind. 2010); Fleischer v. Hellmuth, Obata & Kassabaum, Inc., 870 S.W.2d 832, 837 (Mo. Ct. App. 1993); Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 881 P.2d 986, 993 (Wash. 1994).\\nDetermining that design professionals have a separate and distinct duty, pursuant to section 552, to any subcontractor that must rely on their plans would essentially allow any party to recast their barred negligence claim into a negligent misrepresentation claim. In the context of commercial construction projects, the evidence that would need to be presented in order to prove a negligent misrepresentation claim is almost identical to that which would be necessary in proving a claim for negligence. Allowing one and not the other would create a loophole in Terracon's objective of foreclosing professional negligence claims against commercial construction design professionals and would, essentially, cause the economic loss doctrine to be nullified by negligent misrepresentation claims.\\nHere, PCS and Century, the subcontractors hired to install the steel, sought to plead negligent misrepresentation claims against Halcrow, the steel engineer. Halcrow was employed on the Harmon as a design professional and responsible for creating the plans and overseeing the installation of the Harmon's steel infrastructure. PCS and Century have never stated that they sought anything other than economic losses. Negligent misrepresentation is an unintentional tort and cannot form the basis of liability solely for economic damages in claims against commercial construction design professionals. Consequently, PCS and Century cannot assert claims of negligent misrepresentation against Halcrow. Therefore, leave to amend should not have been granted because the amendment to PCS's and Century's pleadings was futile. See Allum v. Valley Bank of Nev., 109 Nev. 280, 287, 849 P.2d 297, 302 (1993); Soebbing v. Carpet Barn, Inc., 109 Nev. 78, 84, 847 P.2d 731, 736 (1993).\\nCONCLUSION\\nWe conclude that, in commercial construction defect litigation, the economic loss doctrine applies to bar claims against design professionals for negligent misrepresentation where the damages alleged are purely economic. Thus, the district court was com pelled to deny Century's and PCS's motions to amend their third- and fourth-party complaints to include claims for negligent misrepresentation against Halcrow. Accordingly, we grant Halcrow's petition for a writ of mandamus. The clerk of this court shall issue a writ of mandamus directing the district court to vacate its order granting PCS and Century leave to amend their third- and fourth-party complaints and the amended complaints.\\nGibbons, Hardesty, Parraguirre, Douglas, and Cherry, JJ., concur.\\nIntentional torts are not barred by the economic loss doctrine. See Terracon, 125 Nev. at 72-73, 206 P.3d at 85-86. Thus, the economic loss doctrine does not preclude litigants from asserting claims of intentional misrepresentation.\\nOur conclusions, however, do not bar PCS or Century's potential reliance on Home Furniture, Inc. v. Brunzell Construction Co., 84 Nev. 309, 313-14, 440 P.2d 398, 401-02 (1968), and United States v. Spearin, 248 U.S. 132, 136 (1918) (providing that contractors cannot be liable for loss or damage resulting from defects in the plans and specifications, when the contractors simply followed the plans as provided).\\nBecause we determine that negligent misrepresentation and professional negligence claims cannot form a basis for liability, Terracon, 125 Nev. at 80, 206 P.3d at 90, Halcrow cannot be deemed a joint tortfeasor with PCS or Cen tury. Consequently, PCS and Century's equitable claims for contribution, apportionment, and indemnity necessarily fail. See Black & Decker (U.S.), Inc. v. Essex Grp., Inc., 105 Nev. 344, 345, 775 P.2d 698, 699 (1989).\"}"

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+"{\"id\": \"12412507\", \"name\": \"DYNAMIC TRANSIT COMPANY; and KNIGHTS COMPANY/AUTO TRANSPORTERS, a Missouri Business Entity, Appellants/Cross-Respondents, v. TRANS PACIFIC VENTURES, INC.; and TREVOR SMALL, Respondents/Cross-Appellants\", \"name_abbreviation\": \"Dynamic Transit Co. v. Trans Pacific Ventures, Inc.\", \"decision_date\": \"2012-12-27\", \"docket_number\": \"No. 58041\", \"first_page\": 755, \"last_page\": 763, \"citations\": \"128 Nev. 755\", \"volume\": \"128\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-11T00:24:45.016385+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Douglas, Gibbons and Parraguirre, JJ.\", \"parties\": \"DYNAMIC TRANSIT COMPANY; and KNIGHTS COMPANY/AUTO TRANSPORTERS, a Missouri Business Entity, Appellants/Cross-Respondents, v. TRANS PACIFIC VENTURES, INC.; and TREVOR SMALL, Respondents/Cross-Appellants.\", \"head_matter\": \"DYNAMIC TRANSIT COMPANY; and KNIGHTS COMPANY/AUTO TRANSPORTERS, a Missouri Business Entity, Appellants/Cross-Respondents, v. TRANS PACIFIC VENTURES, INC.; and TREVOR SMALL, Respondents/Cross-Appellants.\\nNo. 58041\\nDecember 27, 2012\\n291 P.3d 114\\n[Rehearing denied April 4, 2013]\\n[En banc reconsideration denied May 24, 2013]\\nMarquis Aurbach Coffing and Micah S. Echols and Scott A. Marquis, Las Vegas, for Appellants/Cross-Respondents.\\nWeinberg, Wheeler, Hudgins, Gunn & Dial, LLC, and David J. Larson and Jeremy R. Alberts, Las Vegas, for Respondents/ Cross-Appellants.\\nBefore Douglas, Gibbons and Parraguirre, JJ.\", \"word_count\": \"2752\", \"char_count\": \"17335\", \"text\": \"OPINION\\nBy the Court,\\nParraguirre, J.:\\nIn this opinion, we consider whether a shipper's state-law claim for conversion is necessarily preempted by the Carmack Amendment's federal liability limitation for interstate carriers, where the carrier was not authorized to take possession of the shipper's property but did so for its own gain. Recognizing that the Carmack Amendment does not apply in cases of true conversion, we conclude that sufficient evidence supports the district court's findings and award of damages. Thus, we affirm the district court's judgment in respondents' favor.\\nFACTS AND PROCEDURAL HISTORY\\nIn June 2007, respondent Trevor Small purchased a luxury sports car from Desert Audi in Henderson, Nevada, for the total price of $67,253.25. Small contracted with Nex-Day Auto Transport, Inc., to facilitate delivery of the vehicle to Washington, with instructions that the vehicle be transported in an enclosed carrier. Nex-Day proceeded to advertise the job on an industry website. A dispatcher from appellants Dynamic Transit Company/Knights Company (collectively, Knights) called Nex-Day and offered to transport the vehicle. While on the phone, Nex-Day provided Knights' dispatcher with Small's delivery address and contact information. Nex-Day then faxed a work order with this information to Knights, which required that Knights agree to Nex-Day's terms in writing and return a signed copy to Nex-Day before accepting delivery of the vehicle.\\nThis was not the first time that Knights had negotiated with Nex-Day for delivery of a vehicle. In fact, Nex-Day owed Knights approximately $9,650 for past-due invoices. Instead of signing and returning the work order provided for the transport of Small's car, the Knights dispatcher altered the terms of the agreement to include a pay-on-delivery clause and to provide for transport in an unenclosed carrier. The dispatcher proceeded to generate a bill of lading and arranged for a truck to pick up Small's vehicle from Desert Audi. Nex-Day never received a signed copy of the work order\\u2014altered or otherwise\\u2014from Knights. Thus, it faxed a cancellation to Knights and proceeded to solicit other carriers.\\nThe next day, a Knights driver arrived at Desert Audi and began loading Small's vehicle onto an unenclosed carrier. Although a Desert Audi representative informed the driver that Knights was not authorized to transport the vehicle, the driver proceeded with pickup and departed with Small's car.\\nOnce in possession, Knights transported the vehicle to Washington but demanded that Nex-Day tender payment for its unrelated past-due invoices before it would proceed with delivery. When Nex-Day failed to do so, Knights refused to deliver Small's vehicle, and it was ultimately transported to a storage facility in Missouri.\\nSmall brought action against Knights, alleging various state-law claims, including conversion and fraud. In its answer, Knights denied any wrongdoing and set forth a number of affirmative defenses\\u2014none of which included an argument that Small's state-law claims were preempted by the Carmack Amendment.\\nNearly one and a half years after filing its answer, Knights filed a motion to dismiss Small's complaint for failure to state a claim under NRCP 12(b)(5). Namely, Knights asserted that Small's state-law claims were preempted by the Carmack Amendment's federal liability limitation for interstate cargo carriers. Small responded that Knights had waived this defense by failing to timely raise it, and even if it had not waived it, the Carmack Amendment preemption did not apply because Knights was never contractually authorized to obtain possession of the vehicle. The district court concluded that the Carmack Amendment was inapplicable and denied Knights' motion to dismiss.\\nFollowing a bench trial, the district court granted judgment in Small's favor regarding his state-law claims for conversion and fraud, awarding Small a total of $52,500 in compensatory damages and $300,000 in punitive damages. Knights then filed a motion to amend judgment, arguing that it was entitled to a $40,000 offset based on a pretrial, partial-settlement payment to Small. The district court declined to recalculate damages. This appeal followed.\\nDISCUSSION\\nKnights contends that the district court erred in denying its motion to dismiss pursuant to NRCP 12(b)(5) because the Carmack Amendment preempts each of Small's state-law claims. Alternatively, Knights argues that even if the Carmack Amendment does not apply, there is insufficient evidence to support the district court's judgment. Finally, Knights argues that the district court erred in its award of compensatory damages. We disagree with each of Knights' contentions.\\nThe district court properly denied Knights ' motion to dismiss\\nKnights argues that the district court erred in denying its motion to dismiss because the Carmack Amendment preempts state-law claims so long as the carrier possesses a bill of lading, regardless of the circumstances under which the bill of lading was generated. Small asserts that, regardless of the bill of lading's propriety, the Carmack Amendment does not apply here because the facts of this case fall within an exception for \\\"true conversion.\\\"\\nA complaint should not be dismissed for failure to state a claim ' 'unless it appears beyond a doubt that the plaintiff could prove no set of facts which, if accepted by the trier of fact, would entitle him to relief.\\\" Edgar v. Wagner, 101 Nev. 226, 228, 699 P.2d 110, 112 (1985). In reviewing the district court's denial of Knights' motion to dismiss, it is necessary for us to consider the preemptive scope of the Carmack Amendment as applied to the allegations in Small's complaint.\\nThe Carmack Amendment to the Interstate Commerce Act was enacted in 1906 to establish a uniform national liability policy for interstate carriers, and it limits carrier liability to \\\"the actual loss or injury\\\" to goods that occurs during interstate transit. 49 U.S.C. \\u00a7 14706(a)(1) (2006); New York, N.H. & H.R. Co. v. Nothnagle, 346 U.S. 128, 131 (1953). Accordingly, under the Carmack Amendment, certain compensatory damages and punitive damages are not available. The Supreme Court has explained that the Carmack Amendment's preemptive scope \\\"supersedes all the regulations and policies of a particular state.\\\" Adams Express Co. v. Croninger, 226 U.S. 491, 505 (1913); see also Rolf Jensen & Associates v. Dist. Ct., 128 Nev. 441, 445, 282 P.3d 743, 746 (2012) (\\\"The preemption doctrine emanates from the Supremacy Clause of the United States Constitution, pursuant to which state law must yield when it frustrates or conflicts with federal law.\\\").\\nIn considering the facts of this case, we turn to two Ninth Circuit Court of Appeals opinions for guidance. In Hall v. North American Van Lines, Inc., the Ninth Circuit concluded that the Carmack Amendment preemption \\\"applies equally to fraud and conversion claims arising from a carrier's misrepresentations as to the conditions of delivery or failure to carry out delivery.\\\" 476 F.3d 683, 689 (9th Cir. 2007) (citing Georgia, Fla., & Ala. Ry. v. Blish Co., 241 U.S. 190, 197 (1916)). However, \\\"when there has been a true conversion, i.e., where the carrier has appropriated the property for its own use or gain,\\\" the Ninth Circuit has held that \\\"it would be against public policy to permit the carrier to limit its liability and thus to profit from its own misconduct.\\\" Glickfeld v. Howard Van Lines, 213 F.2d 723, 727 (9th Cir. 1954). See also Tran Enterprises, LLC v. DHL Exp. (USA), Inc., 627 F.3d 1004, 1009 (5th Cir. 2010) (\\\"[WJhere a carrier has intentionally con verted for its own purposes the property of the shipper, traditional true conversion claims should be allowed to proceed and [the Car-mack Amendment's] limitations on liability should be considered inapplicable.\\\"); Mayflower Transit, Inc. v. Weil, Gotshal & Manges, L.L.P., No. Civ.A. 3:00-CV-549-P, 2000 WL 34479959 (N.D. Tex. Oct. 18, 2000) (concluding that the Carmack Amendment did not preempt a conversion claim where the stolen goods were not part of goods authorized to be shipped).\\nApplied here, Small's complaint alleged that Knights had wrongly asserted an act of dominion over his vehicle for its own gain, which was a denial of his rights to the property. Construing this allegation in Small's favor, the district court properly concluded that the Carmack Amendment did not preempt Small's claim for true conversion.\\nThus, the district court did not err in denying Knights' motion to dismiss with regard to Small's conversion claim.\\nSufficient evidence supports the district court's judgment\\nKnights argues that even if the Carmack Amendment did not preempt Small's state-law claim, there is not sufficient evidence to support the district court's findings.\\nThis court will not disturb a district court's findings of fact unless they are clearly erroneous or not supported by substantial evidence. Edwards Indus. v. DTE/BTE, Inc., 112 Nev. 1025, 1031, 923 P.2d 569, 573 (1996). Substantial evidence is that which \\\" 'a reasonable mind might accept as adequate to support a conclusion.' \\\" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Edison Co. v. Labor Board, 305 U.S. 197, 229 (1938)).\\nIn Nevada, conversion is defined as \\\"a distinct act of dominion wrongfully exerted over personal property in denial of, or inconsistent with, title or rights therein or in derogation, exclusion or defiance of such rights.\\\" Edwards v. Emperor's Garden Rest., 122 Nev. 317, 328, 130 P.3d 1280, 1287 (2006). Liability for a claim of conversion is predicated upon \\\"an act of general intent, which does not require wrongful intent and is not excused by care, good faith, or lack of knowledge.\\\" Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 606, 5 P.3d 1043, 1048 (2000).\\nHere, the record includes testimony from various witnesses that Knights lacked authority to transport the vehicle because Nex-Day never received a signed copy of the work order. In particular, the Knights dispatcher acknowledged at trial that he sent a truck to pick up Small's vehicle before reaching an agreement with Nex-Day, that he materially altered the work order, and that he could not recall whether he ever returned the modified work order to Nex-Day for approval. Next, Knights' driver testified that he never attempted to deliver the vehicle to Small, and a manager from Desert Audi testified that Knights was \\\"holding the car for ransom or hostage because Nex-Day owed him money from . . . previous business dealings.\\\" The record also indicates that Nex-Day sent a second fax to Knights on the same day that it sent the work order to cancel the job. Finally, Small testified that when he called to locate his vehicle, the Knights dispatcher was \\\"very belligerent\\\" and said, \\\"I have your vehicle, yes. You're not getting it back until Nex-Day pays us what money is owed for past jobs.\\\"\\nBased on this evidence, a reasonable mind could accept that Knights had engaged in an act of conversion by consciously seizing the vehicle without authority in order to use that vehicle as leverage to obtain money from Nex-Day. Richardson, 402 U.S. at 401. Thus, we conclude that substantial evidence supports the district court's judgment in Small's favor.\\nThe district court's award of damages is proper\\nKnights argues that the district court erred in calculating the $52,500 compensatory damages award by failing to offset its pretrial payment of $40,000 to Small, resulting in an excessive award of punitive damages in the amount of $300,000.\\nWhere a defendant keeps possession of the property he has converted, the injured party should receive full compensation based on actual loss. Bader v. Cerri, 96 Nev. 352, 356, 609 P.2d 314, 317 (1980), overruled on other grounds by Evans, 116 Nev. at 608, 611, 5 P.3d at 1050-51. Broad discretion is given to a dis trict court in calculating an award of damages, and such award will not be reversed unless there is an abuse of discretion. Asphalt Prods. v. All Star Ready Mix, 111 Nev. 799, 802, 898 P.2d 699, 701 (1995). A determination of reasonable expenses will be upheld if supported by substantial evidence. Id.\\nFollowing judgment in Small's favor, Knights filed a motion to amend judgment pursuant to NRCP 52(b) and NRCP 59(e), similarly arguing that the district court had failed to recognize its pretrial payment to Small in the amount of $40,000. The district court denied Knights' request, concluding that its award of $52,500 in compensatory damages reflected the vehicle's undisputed purchase price of $67,253.25, plus loss-of-use damages in the amount of $25,000, as offset by the $40,000 partial pretrial settlement. Therefore, the record reflects that Knights' pretrial payment has already been applied as an offset to the district court's award.\\nWe conclude the district court's award of compensatory damages is supported by substantial evidence and consistent with the testimony presented at trial. It is therefore unnecessary for us to revisit the punitive damages award because it remains within the statutory limit. NRS 42.005(l)(b).\\nIn light of the foregoing, we affirm the district court's judgment.\\nDouglas and Gibbons, JJ., concur.\\nSmall is the sole owner of respondent Trans Pacific Ventures, Inc., and the vehicle was to be used in a company capacity. We refer to respondents collectively as Small.\\nSmall has also filed a cross-appeal, arguing that Knights waived its right to assert the Carmack Amendment as an affirmative defense by failing to raise it in its answer pursuant to NRCP 8(c), and that the district court erred by granting Knights post-trial leave to amend its answer pursuant to NRCP 15(b). Because Small prevailed below, he is not aggrieved by the district court's judgment, and we therefore lack jurisdiction over the cross-appeal. NRAP 3A(a); Ford v. Showboat Operating Co., 110 Nev. 752, 756, 877 P.2d 546, 549 (1994) (\\\"A party who prevails in the district court and who does not wish to alter any rights of the parties arising from the judgment is not aggrieved.\\\"). Accordingly, we dismiss Small's cross-appeal.\\nWhile the conversion claim is appropriate, we acknowledge that the caselaw exempting true conversion from the Carmack Amendment preemption does not provide an exception for state-law fraud claims. Instead, caselaw suggests the opposite with regard to fraud. See Gordon v. United Van Lines, Inc., 130 F.3d 282, 289 (7th Cir. 1997) (concluding that fraud \\\"claims relating to the making of the contract for carriage are so closely related to the performance of the contract, and the measure of damages for such claims so likely to be the loss or damage to the goods, that they are also preempted by the Car-mack Amendment\\\"). Nonetheless, because the district court's finding of conversion warranted the compensatory and punitive damages awarded, we need not reverse the district court's judgment. \\\"If a decision below is correct, it will not be disturbed on appeal even though the lower court relied upon wrong reasons.\\\" Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981).\\nKnights presents three additional challenges to the district court's compensatory damages award, arguing that loss-of-use damages (1) were not requested at trial, (2) are an improper double recovery because Small was compensated for the fair market value of the vehicle, and (3) are improper because Small disowned the vehicle at the outset of litigation.\\nWith regard to the first argument, the record indicates that Small's complaint specifically includes consequential damages, and that the district court repeatedly confirmed prior to judgment that Small was seeking loss-of-use damages in the amount of $35 per day for the two years that Knights failed to reasonably deliver his vehicle (approximately $25,500). Knights did not object to Small's request at trial, nor did Knights challenge the district court's award of loss-of-use damages in its post-trial motion to amend judgment.\\nTherefore, we conclude that the remaining arguments have not been preserved for appeal. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (\\\"A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal.\\\"). We also note that Knights has failed to present relevant authority to support these arguments on appeal. See NRAP 28(a)(9)(A); Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (stating that this court need not consider arguments not cogently made or not supported by citations to salient authority). Accordingly, we do not address these arguments further.\"}"

nev/12571264.json

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+"{\"id\": \"12571264\", \"name\": \"Kofi SARFO, M.D., Appellant, v. State of Nevada, BOARD OF MEDICAL EXAMINERS, Respondent.\", \"name_abbreviation\": \"Sarfo v. State\", \"decision_date\": \"2018-11-01\", \"docket_number\": \"No. 73117\", \"first_page\": 650, \"last_page\": 655, \"citations\": \"429 P.3d 650\", \"volume\": \"429\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-27T21:04:09.001298+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"BEFORE PICKERING, GIBBONS and HARDESTY, JJ.\", \"parties\": \"Kofi SARFO, M.D., Appellant,\\nv.\\nState of Nevada, BOARD OF MEDICAL EXAMINERS, Respondent.\", \"head_matter\": \"Kofi SARFO, M.D., Appellant,\\nv.\\nState of Nevada, BOARD OF MEDICAL EXAMINERS, Respondent.\\nNo. 73117\\nSupreme Court of Nevada.\\nFILED NOVEMBER 1, 2018\\nHafter Law and Jacob L. Hafter, Las Vegas, for Appellant.\\nRobison, Sharp, Sullivan & Brust and Michael E. Sullivan and Therese M. Shanks, Reno, for Respondent.\\nBEFORE PICKERING, GIBBONS and HARDESTY, JJ.\\nThis court is aware that appellant's attorney was suspended and has since passed away. Since a disposition in this matter has already been filed, and this opinion is being issued in response to a motion to publish, this court need not address the failure of the parties to give notice to this court following his death.\", \"word_count\": \"2640\", \"char_count\": \"16686\", \"text\": \"By the Court, HARDESTY, J.:\\nIn this appeal, we must determine whether a physician's due process rights attach at the investigation stage of a complaint made to the Nevada State Board of Medical Examiners (the Board). When a complaint against a physician is filed with the Board, a committee of Board members investigates the complaint. Because NRS 630.352(1) prevents members in the investigative committee from later participating in adjudicating claims stemming from the investigation, we extend the holding in Hernandez v. Bennett-Haron , 128 Nev. 580, 287 P.3d 305 (2012), and conclude that a physician's due process rights do not attach to the administrative agency's fact-finding role.\\nFACTS AND PROCEDURAL HISTORY\\nAppellant Kofi Sarfo, M.D., received a letter from respondent Nevada State Board of Medical Examiners (the Board) informing him that a complaint had been filed against him. The Board did not identify the complainant or specify the claims, only noting that it would not determine whether there had been a violation of the Medical Practice Act until it completed its investigation. The letter accompanied an order for Dr. Sarfo to produce medical records for several of his patients to enable the Board's investigative committee (IC) to investigate the complaint filed against Dr. Sarfo. Dr. Sarfo refused to comply. He then filed a writ petition and a motion for injunctive relief in the district court, arguing that the Board violated his due process rights by keeping the actual complaint and identity of the complainant confidential.\\nThe district court denied Dr. Sarfo's request for injunctive relief, concluding that his due process rights were not violated, and thus, his underlying petition could not succeed on the merits. The district court found that under NRS 630.140(1), NRS 630.311(1), and NRS 630.336(4), the Board \\\"is empowered to issue the order of which Dr. Sarfo complains, the investigation itself is confidential, and the Board is prohibited from disclosing to Dr. Sarfo the identity of the person who filed the complaint, or the actual complaint disclosing such.\\\" In issuing this order, the district court relied on Hernandez v. Bennett-Haron, 128 Nev. 580, 287 P.3d 305 (2012), to find that the IC's investigation did not invoke due process protections because the IC \\\"has no authority to adjudicate any legal rights,\\\" since it is only \\\"tasked with gathering facts and investigating whether there is any merit to a complaint filed with the Board against a physician.\\\" The Board then moved for attorney fees and costs, which the district court granted.\\nDr. Sarfo now appeals the district court order, arguing that (1) the Board's investigative procedures violate his due process rights, (2) the Board improperly interprets NRS 630.336(4) to allow the Board to refuse to disclose the actual complaint and complainant, and (3) the district court abused its discretion in awarding the Board attorney fees and costs.\\nDISCUSSION\\nThe district court did not abuse its discretion in denying Dr. Sarfo's motion for a preliminary injunction\\nA district court may issue a preliminary injunction if the plaintiff can show \\\"(1) a likelihood of success on the merits; and (2) a reasonable probability that the non-moving party's conduct, if allowed to continue, will cause irreparable harm for which compensatory damage is an inadequate remedy.\\\" Univ. & Cmty. Coll. Sys. of Nev. v. Nevadans for Sound Gov't , 120 Nev. 712, 721, 100 P.3d 179, 187 (2004) (internal quotation marks omitted). \\\"Determining whether to grant or deny a preliminary injunction is within the district court's sound discretion ., and the district court's decision will not be disturbed absent an abuse of discretion or unless it is based on an erroneous legal standard.\\\" Id.\\nDr. Sarfo first argues the merits of his underlying petition, contending that physicians must have due process protections during the discipline process. Dr. Sarfo argues that his interest in practicing medicine is a property right in Nevada, and that the Board's procedures were not constitutionally sufficient because keeping the complaint and complainant confidential fails to provide adequate notice and a meaningful opportunity to respond. Further, Dr. Sarfo argues that because the IC also prosecutes administrative discipline cases brought before the Board, its functions exceed mere fact-finding and are an extension of the adjudication process.\\nThe Board argues that the district court did not abuse its discretion in denying Dr. Sarfo's motion for preliminary injunction because Dr. Sarfo cannot prevail on the merits of his underlying petition. Specifically, the Board argues that due process has not been implicated because there is no property interest at stake during the preliminary investigation, due process does not attach to the fact-finding portion of the investigation, and the Board is statutorily prohibited from providing Dr. Sarfo with a copy of the complaint. The Board further argues that Dr. Sarfo's motion was properly denied since he cannot show irreparable harm resulting from the IC's order to produce records, because irreparable harm does not exist when there is no actual or threatened injury and merely the possibility of an injury. Lastly, the Board argues that the public interest in regulating medical professionals and protecting the public from potentially unsafe or incompetent practitioners outweighs any potential harm to Dr. Sarfo.\\nThere are two types of complaints that come before the Board: a complaint initially generated by a member of the public and a formal complaint generated by the IC following the completion of its investigation. See NRS 630.311. Upon receipt of the initial complaint filed by a member of the public against a physician, the Board must designate an IC to \\\"review each complaint and conduct an investigation to determine if there is a reasonable basis for the complaint.\\\" NRS 630.311(1). The IC has no disciplinary powers and can only file a formal complaint with the Board if it concludes that a complaint from a member of the public has a reasonable basis. NRS 630.311(2). Once a formal complaint has been filed, the adjudicative process begins, and the physician is provided with notice and an opportunity to be heard at a formal hearing. See NRS 630.339. Here, Dr. Sarfo is alleging a due process violation stemming from an initial complaint, not a formal complaint.\\nThe Nevada Constitution requires that \\\"[n]o person shall be deprived of life, liberty, or property, without due process of law.\\\" Nev. Const. art. 1, \\u00a7 8 (5). The district court, relying on Hernandez v. Bennett-Haron , 128 Nev. 580, 287 P.3d 305 (2012), found that Dr. Sarfo could not prevail on the merits because due process was not implicated in this matter, as the IC was merely performing investigatory fact-finding with no power to deprive Dr. Sarfo of his liberty interest. In Hernandez, we determined that the county coroner's fact-finding investigation of whether police officers used excessive force did not implicate due process rights because the county coroner was only tasked with fact-finding and not with adjudicating formal disciplinary proceedings. 128 Nev. at 591-93, 287 P.3d at 313-14. In fact, due process protections \\\"need not be made available in proceedings that merely involve fact-finding or investigatory exercises by the government agency.\\\" Id. at 587, 287 P.3d at 311 (citing Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960) ). Here, the IC is tasked with \\\"conduct[ing] an investigation to determine if there is a reasonable basis for the complaint.\\\" NRS 630.311(1).\\nDr. Sarfo challenges the district court's application of Hernandez, contending that the IC is distinguishable from a county coroner because the IC, unlike the county coroner, is able to file a formal complaint with the Board. However, NRS 630.352(1) mitigates the due process danger of an entity serving in both an investigatory and adjudicatory role, stating that\\n[a]ny member of the Board, other than a member of an investigative committee of the Board who participated in any determination regarding a formal complaint in the matter or any member serving on a panel of the Board at the hearing of the matter, may participate in an adjudication to obtain the final order of the Board.\\nThus, the IC fact-finders are statutorily prohibited from participating in the adjudication of any subsequent formal complaint. Extending our holding in Hernandez to an administrative agency engaged solely in an investigation role is in accordance with the law across the country that recognizes the distinction between an agency's fact-finding and adjudicatory roles. See, e.g., United States v. E. River Hous. Corp ., 90 F.Supp.3d 118, 136-37 (S.D.N.Y. 2015) (holding that due process rights do not attach during a Housing and Urban Development Department discrimination investigation, but do attach if the agency initiates a formal adjudicatory proceeding); S.E.C. v. OKC Corp. , 474 F.Supp. 1031, 1041 (N.D. Tex. 1979) (holding that due process protections do not attach during an SEC investigation, but may be implicated by the SEC's filing of a complaint); Alexander D. v. State Bd. of Dental Exam'rs , 231 Cal.App.3d 92, 282 Cal.Rptr. 201, 204-05 (1991) (holding that a dentist's due process rights do not attach during the California Board of Dental Examiner's investigation of a complaint against the dentist); Smith v. Bd. of Med. Quality Assurance , 202 Cal.App.3d 316, 248 Cal.Rptr. 704, 710 (1988) (holding that a physician's due process rights do not attach during the California Board of Medical Quality Assurance's investigation of a complaint); In re Petition of Att'y Gen. for Investigative Subpoenas , 274 Mich.App. 696, 736 N.W.2d 594, 602 (2007) (holding that subpoenas issued pursuant to the department of Public Health's investigation do not implicate due process unless and until the department files a formal complaint); Humenansky v. Minn. Bd. of Med. Exam'rs, 525 N.W.2d 559, 566 (Minn. Ct. App. 1994) (holding that due process does not attach during the investigatory proceedings of the Minnesota Board of Medical Examiners).\\nAccordingly, we conclude that the district court appropriately applied Hernandez to find that the IC's investigation did not require due process protection because it did not also adjudicate the complaint. An agency or board being tasked merely with investigatory fact-finding and filing a formal complaint, which they are then statutorily prohibited from later adjudicating themselves, does not implicate procedural due process protections. As such, Dr. Sarfo has failed to show how he would be irreparably harmed at this investigatory stage of the administrative process.\\nBecause the district court correctly found that Dr. Sarfo could not prevail on the merits because no due process rights were implicated and Dr. Sarfo has failed to show irreparable harm, we conclude that the district court did not abuse its discretion in denying Dr. Sarfo's motion for a preliminary injunction. Univ. & Cmty. Coll. Sys. of Nev. v. Nevadans for Sound Gov't , 120 Nev. 712, 721, 100 P.3d 179, 187 (2004).\\nThe Board's interpretation of NRS 630.336 is reasonable and within the plain language of the statute\\nDr. Sarfo next argues that the Board incorrectly interprets the statute to mean that the complaint and complainant may be kept confidential from the licensee. NRS 630.336(4) states:\\nExcept as otherwise provided in subsection 5 and NRS 239.0115, a complaint filed with the Board pursuant to NRS 630.307, all documents and other information filed with the complaint and all documents and other information compiled as a result of an investigation conducted to determine whether to initiate disciplinary action are confidential.\\nDr. Sarfo argues that this statute should be interpreted to mean that all documents related to the investigation should be kept confidential from non-related parties only, because the statute is meant to protect licensees from reputational damage from baseless complaints. He supports this position by pointing to the legislative history where the statute was amended to make only formal complaints public to prevent frivolous complaints from becoming public record. Dr. Sarfo also draws a comparison to judicial discipline proceedings, which require confidentiality with regard to the public rather than the target of the proceedings.\\nThe Board argues that keeping the complaint and complainant confidential from the licensee is a reasonable interpretation of the statute. The Board further argues that if it is required to disclose the identity of the complainant to the licensee, members of the public would be more hesitant to file complaints against their doctors, which would undermine the Board's duty to regulate the medical profession.\\nWe review questions of statutory interpretation de novo. Dykema v. Del Webb Cmtys., Inc., 132 Nev. -, -, 385 P.3d 977, 979 (2016). \\\"[W]hen the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.\\\" Id. (internal quotation marks omitted). We will \\\"nonetheless defer to an agency's interpretation of its governing statutes or regulations if the interpretation is within the language of the statute.\\\" Dutchess Bus. Servs., Inc. v. Nev. State Bd. of Pharmacy, 124 Nev. 701, 709, 191 P.3d 1159, 1165 (2008).\\nWe conclude that NRS 630.336(4) is unambiguous and that the Board's interpretation falls \\\"within the [plain] language of the statute.\\\" Id. The statute requires that complaints and complainants be kept confidential. Dr. Sarfo's argument appears to be that the Board is keeping the investigation more confidential than he believes the statute requires. However, nothing in the statute says that the complaint and complainant must be disclosed to the licensee in the investigatory phase. Keeping the complaint fully confidential, even from the licensee, is a reasonable interpretation of the statute's plain language. Additionally, the record demonstrates that Dr. Sarfo indicated in his declaration that he questioned all five of his patients, whose records were requested by the Board, to determine which one filed the complaint. This supports the Board's basis for its interpretation of the statute-that disclosing the complaint and complainant may make patients hesitant to report malpractice without the protection of confidentiality.\\nWe lack jurisdiction to consider the district court's order awarding attorney fees and costs to the Board\\nDr. Sarfo argues that the district court abused its discretion in awarding attorney fees and costs to the Board. The Board first argues that the district court's award of attorney fees and costs is not properly before this court because Dr. Sarfo is required to separately appeal such an order. The district court's order denying the preliminary injunction was entered on May 12, 2017, and Dr. Sarfo filed his notice of appeal on May 25, 2017. The district court's order awarding attorney fees and costs was not entered until November 15, 2017, and no separate notice of appeal or amended notice of appeal of that order has been filed. We therefore lack jurisdiction to entertain Dr. Sarfo's arguments regarding the attorney fees order. See NRAP 3(a)(1) ; NRAP 4(a)(1).\\nAccordingly, for the reasons set forth above, we affirm. However, on the issue of attorney fees and costs, we conclude that we lack jurisdiction to consider Dr. Sarfo's arguments regarding the special order.\\nWe concur:\\nPickering, J.\\nGibbons, J.\\nWe originally affirmed in an unpublished order. Respondent has moved to publish the order as an opinion. We grant the motion and publish this opinion in place of our earlier order. See NRAP 36(f).\\nWe make no determination concerning the substantive appealability of the interlocutory attorney fees order when no final judgment has been entered.\"}"

nev/12571617.json

@@ -0,0 +1 @@
+"{\"id\": \"12571617\", \"name\": \"BANK OF AMERICA, N.A., a National Association, Successor by Merger to BAC Home Loans Servicing, LP, F/K/A Countrywide Homes Loans Servicing, LP, Appellant, v. SFR INVESTMENTS POOL 1, LLC, a Nevada Limited Liability Company, Respondent.\", \"name_abbreviation\": \"Bank of Am., N.A. v. SFR Invs. Pool 1, LLC\", \"decision_date\": \"2018-11-16\", \"docket_number\": \"No. 71781\", \"first_page\": 531, \"last_page\": 531, \"citations\": \"430 P.3d 531\", \"volume\": \"430\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-27T21:04:09.384135+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"BANK OF AMERICA, N.A., a National Association, Successor by Merger to BAC Home Loans Servicing, LP, F/K/A Countrywide Homes Loans Servicing, LP, Appellant,\\nv.\\nSFR INVESTMENTS POOL 1, LLC, a Nevada Limited Liability Company, Respondent.\", \"head_matter\": \"BANK OF AMERICA, N.A., a National Association, Successor by Merger to BAC Home Loans Servicing, LP, F/K/A Countrywide Homes Loans Servicing, LP, Appellant,\\nv.\\nSFR INVESTMENTS POOL 1, LLC, a Nevada Limited Liability Company, Respondent.\\nNo. 71781\\nSupreme Court of Nevada.\\nFILED NOVEMBER 16, 2018\\nAkerman LLP/Las Vegas\\nKim Gilbert Ebron\\nORDER OF REVERSAL AND REMAND\", \"word_count\": \"539\", \"char_count\": \"3366\", \"text\": \"This is an appeal from a district court order granting summary judgment, certified as final under NRCP 54(b), in an action to quiet title. Eighth Judicial District Court, Clark County; Joseph Hardy, Jr., Judge. Reviewing the summary judgment de novo, Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005), we reverse and remand for further proceedings.\\nThe record demonstrates that appellant Bank of America's predecessor tendered $166.50 to Nevada Association Services (NAS), which undisputedly represented 9 months of assessments. See Horizons at Seven Hills Homeowners Ass'n v. Ikon Holdings, LLC, 132 Nev. 362, 373, 373 P.3d 66, 72 (2016) (\\\"[A] superpriority lien pursuant to NRS 116.3116(2) [ (2009) ] . is limited to an amount equal to nine months of common expense assessments.\\\"). The tender of the defaulted superpriority portion of the HOA's lien cured the default as to that portion of the lien such that the ensuing foreclosure sale did not extinguish the first deed of trust. Bank of America, N.A. v. SFR Investments Pool 1, LLC , 134 Nev., Adv. Op. 72, 427 P.3d 113 (2018).\\nRespondent contends that NAS's belief that collection costs were part of the superpriority portion of the lien constituted a good-faith basis for rejecting the tender. Even if such a belief would provide a good-faith basis to reject the tender, the record contains no evidence indicating why the tender was rejected. See Nev. Ass'n Servs., Inc. v. Eighth Judicial Dist. Court, 130 Nev. 949, 957, 338 P.3d 1250, 1255 (2014) (recognizing that \\\"[a]rguments of counsel are not evidence and do not establish the facts of the case\\\" (internal quotation and alteration omitted)). Additionally, although respondent contends that (1) the tender was ineffective because it imposed conditions, (2) Bank of America's predecessor needed to keep the tender good, (3) Bank of America's predecessor needed to record evidence of the tender, and (4) respondent is protected as a bona fide purchaser, we recently rejected similar arguments. Bank of America, 134 Nev., Adv. Op. 72, 427 P.3d at 118-121. Accordingly, respondent took title to the property subject to the first deed of trust. We therefore\\nORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.\\nAlthough respondent refers to an \\\"alleged\\\" tender, the district court found that the check was sent and received, and respondent does not dispute the veracity of the evidence supporting those findings.\\nWe are not persuaded by respondent's argument that the letter accompanying the check contained conditions purporting to absolve the deed of trust beneficiary of any future liability that it may have to the HOA. The letter refers to \\\"the facts stated herein,\\\" which can only be reasonably construed as contemplating the underlying foreclosure proceeding and not a future scenario in which the deed of trust beneficiary might again need to cure a default to avoid foreclosure.\"}"

nev/12574627.json

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+"{\"id\": \"12574627\", \"name\": \"RESOURCES GROUP, LLC, AS TRUSTEE OF the EAST SUNSET ROAD TRUST, Appellant, v. NEVADA ASSOCIATION SERVICES, INC. ; and Hydr-O-Dynamic Corporation, a Revoked Nevada Corporation, Respondents.\", \"name_abbreviation\": \"Res. Grp., LLC v. Nev. Ass'n Servs., Inc.\", \"decision_date\": \"2019-03-14\", \"docket_number\": \"No. 71268\", \"first_page\": 154, \"last_page\": 166, \"citations\": \"437 P.3d 154\", \"volume\": \"437\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-27T21:04:20.483831+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"RESOURCES GROUP, LLC, AS TRUSTEE OF the EAST SUNSET ROAD TRUST, Appellant,\\nv.\\nNEVADA ASSOCIATION SERVICES, INC. ; and Hydr-O-Dynamic Corporation, a Revoked Nevada Corporation, Respondents.\", \"head_matter\": \"RESOURCES GROUP, LLC, AS TRUSTEE OF the EAST SUNSET ROAD TRUST, Appellant,\\nv.\\nNEVADA ASSOCIATION SERVICES, INC. ; and Hydr-O-Dynamic Corporation, a Revoked Nevada Corporation, Respondents.\\nNo. 71268\\nSupreme Court of Nevada.\\nFILED MARCH 14, 2019\", \"word_count\": \"7504\", \"char_count\": \"45190\", \"text\": \"By the Court, HARDESTY, J.:\\nThis case presents us with an opportunity to clarify whether a person conducting a sale under NRS Chapter 116, governing nonjudicial foreclosure sales by a unit-owners' association (UOA), has the discretion to refuse to issue a foreclosure deed to the highest bidder at a foreclosure sale after payment has been made, when it is later determined that the delinquency amount may have been paid by the property owner before the sale. We first hold that each party in a quiet title action has the burden of demonstrating superior title in himself or herself. We further hold that once a bid is accepted and payment is made, the foreclosure sale is complete and title vests in the purchaser, and the person conducting the sale has no discretion to refuse to issue the foreclosure deed. Lastly, we reaffirm our prior holdings that the correct standard for determining whether to set aside a sale on equitable grounds is whether there has been some showing of fraud, unfairness, or oppression affecting the sale.\\nHere, the purchaser demonstrated superior title by showing that it paid the sales price following a valid foreclosure sale. The burden of demonstrating that the delinquency was cured presale, rendering the sale void, was on the party challenging the foreclosure, who failed to meet its burden. Because we also conclude that the district court correctly found that there was no showing that fraud, unfairness, or oppression affected the sale, we hold that title vested in the purchaser's name and that the district court abused its discretion by setting aside the sale.\\nFACTS AND PROCEDURAL HISTORY\\nRespondent Hydr-O-Dynamic Corporation (HODC) was the legal owner and titleholder of real property located at 571 East Sunset Road in Henderson (the Property). The Property was located within a common-interest community comprised of commercial buildings overseen by Sunpac, a UOA formed under NRS Chapter 116. HODC became delinquent on the periodic assessments it was required to pay to the UOA, and respondent Nevada Association Services, Inc. (NAS), as the UOA's foreclosure agent, complied with all statutory presale requirements for a nonjudicial foreclosure sale of the Property pursuant to NRS 116.3116, including mailing default and sale notices certified with return receipt requested to HODC. The foreclosure sale was scheduled to take place on February 13, 2015, at 10 a.m.\\nOn February 6, 2015, HODC's president mailed a check for the full amount of the delinquency ($6,554.09) to NAS via regular mail. At 10 a.m. on February 13, NAS, unaware that HODC had mailed a delinquency payment, began its property auctions, which included the subject Property. The auctions concluded at approximately 10:30 a.m. Appellant Resources Group, LLC, was the successful bidder on the Property, paying $350,000 in cashier's checks immediately following the conclusion of the auctions. That same day, at some point between 9:30 a.m. and 11 a.m., NAS received the check from HODC. NAS did not inform its general counsel that it had received the check until February 17, however, due to an intervening three-day weekend. NAS's general counsel then contacted Resources Group, explained the situation, and offered to return Resources Group's cashier's checks, along with interest for the five days that had elapsed since the sale, in exchange for canceling the sale of the Property. Resources Group declined the offer, stating that it wanted either $1 million or the Property. Resources Group's agent informed NAS that he saw the mailman arrive on February 13 as he was leaving NAS's offices following the foreclosure sale, which would have been about 10:30 a.m., and thus, by the time NAS could have processed the payment, the foreclosure sale would have been completed. Despite this claim, NAS declined to issue a foreclosure deed to Resources Group.\\nResources Group then filed a complaint against NAS, the UOA, and HODC regarding title to the Property. After an unsuccessful summary judgment motion, the parties proceeded to trial. Ultimately, the district court entered judgment against Resources Group, finding that although HODC was delinquent in paying its assessments and the UOA's lien was perfected, Resources Group failed to demonstrate that the check curing the delinquency had not arrived before the foreclosure sale. The court discounted the testimony regarding the mailman as the agent had no specific memory distinguishing that day from any other. The court therefore concluded that Resources Group failed to meet its burden of showing that title should vest in its name.\\nThe district court also concluded that the equities weighed in favor of setting aside the sale, reasoning that nothing in this court's recent line of NRS Chapter 116 foreclosure opinions \\\"limit[ed] the exercise of equity to only those instances where there is gross inadequacy of price and fraud, unfairness or oppression that accounts for [an] inadequacy of price,\\\" even though that is a more common ground for setting aside a sale than it being deemed void due to sale irregularities. In balancing the equities, the court found that Resources Group tendered payment for the Property not knowing of the possible arrival of HODC's check, such that Resources Group arguably held bona fide purchaser status, but that setting aside the sale would not result in any prejudice to Resources Group as it would only suffer a loss of interest. The court also found that HODC did nothing more than deposit its delinquency-curing check in regular mail without any follow-up that NAS had received the check, but that the statutory scheme evidenced a legislative intent to allow post-sale redemption and that HODC would be severely prejudiced if the sale was not set aside. Based on these facts, the court concluded that the equities weighed in favor of HODC and set the sale aside such that HODC retained title to the Property.\\nDISCUSSION\\nI.\\nResources Group argues that completion of a foreclosure sale and tender of the bid amount vests title to the property in the bidder, that the burden then lies on HODC to show that the sale was invalid because it cured the delinquency, and that HODC failed to meet that burden. Thus, Resources Group asserts that title to the Property vested in its name when it delivered the cashier's checks upon conclusion of the foreclosure sale and that there is no basis to set the sale aside.\\nConversely, HODC argues that title passes to a successful bidder only at the conclusion of a valid foreclosure sale and payment of the bid amount. On this foundation, HODC argues that if its payment of the delinquency was received prior to the sale, the sale was invalid, and Resources Group had the burden to show that the sale was valid by demonstrating that HODC's check arrived after the sale or otherwise failed to cure the delinquency.\\nA.\\nWhile the \\\"burden of proof [in a quiet title action] rests with the plaintiff to prove good title in himself,\\\" Breliant v. Preferred Equities Corp ., 112 Nev. 663, 669, 918 P.2d 314, 318 (1996), abrogated on other grounds by Delgado v. Am. Family Ins. Grp., 125 Nev. 564, 570, 217 P.3d 563, 567 (2009), \\\"a plaintiff's right to relief [ultimately] . depends on superiority of title,\\\" W. Sunset 2050 Tr. v. Nationstar Mortg., LLC , 134 Nev. -, -, 420 P.3d 1032, 1034 (2018) (internal quotation marks omitted). And because \\\"[a] plea to quiet title does not require any particular elements, . each party must plead and prove his or her own claim to the property in question.\\\" Chapman v. Deutsche Bank Natl Tr. Co., 129 Nev. 314, 318, 302 P.3d 1103, 1106 (2013) (internal quotation marks omitted). Thus, we analyze the parties' respective claims to the Property.\\nB.\\nA foreclosure sale generally terminates a party's legal title to the property. See Bldg. Energetix Corp. v. EHE, LP, 129 Nev. 78, 86, 294 P.3d 1228, 1234 (2013) ; Charmicor, Inc. v. Bradshaw Fin. Co., 92 Nev. 310, 313, 550 P.2d 413, 415 (1976). This general rule is subject to certain limited exceptions, such as where the sale is void. See Energetix , 129 Nev. at 86, 294 P.3d at 1234 (noting that a lack of substantial compliance with the relevant statutes and a lack of proper notice are exceptions to the general rule); see also Bank of Am., N.A. v. SFR Invs. Pool 1, LLC, 134 Nev. -, -, 427 P.3d 113, 121 (2018), as amended on denial of reh'g (2018) (holding that a foreclosure sale on a lien is void where that lien has been satisfied prior to the sale \\\"as the lien is no longer in default\\\"); Henke v. First S. Props., Inc., 586 S.W.2d 617, 619-20 (Tex. Civ. App. 1979) (concluding that the payment of past-due installments cured a loan's default such that the subsequent foreclosure on the property was void); 1 Grant S. Nelson, Dale A. Whitman, Ann M. Burkhart & R. Wilson Freyermuth, Real Estate Finance Law \\u00a7 7:21 (6th ed. 2014) (noting that a trustee's sale is void where there is no authorization to foreclose, and that there is no authorization to foreclose when the loan is not in default). To complete a valid foreclosure sale for unpaid assessments in Nevada, a UOA must comply with the provisions set forth in NRS Chapter 116. Relevant to the present case, the UOA must mail and record a notice of delinquent assessment, NRS 116.31162(1)(a), \\\"a notice of default and election to sell,\\\" NRS 116.31162(1)(b), and a notice of foreclosure sale, NRS 116.311635(1)(a). Moreover, a foreclosure sale is complete and title vests in the purchaser once payment has been made by the highest bidder. See Dazet v. Landry, 21 Nev. 291, 295, 30 P. 1064, 1066 (1892), overruled on other grounds by Golden v. Tomiyasu, 79 Nev. 503, 514-15, 387 P.2d 989, 995 (1963). After a sale is completed and payment is made, NRS 116.31164(3)(a) states that \\\"the person conducting the sale shall . [m]ake, execute and . deliver to the purchaser\\\" a deed conveying the property's title to the purchaser. (Emphasis added.)\\nHere, the district court found that it was uncontested that the sale complied with the statutory requirements, and that Resources Group made payment of the full bid amount in cashier's checks immediately after the auction. The record further suggests that NAS accepted the checks and provided Resources Group with a receipt of funds and instructions. If this constitutes a valid sale, NRS 116131164(3)(a) mandates that the person conducting the sale execute and deliver a deed of the Property to Resources Group.\\nII.\\nHODC argues, however, that it has superior title to the Property-despite the sale being properly conducted and Resources Group tendering payment of its bid-because it cured its default prior to the sale. In considering HODC's argument, we must address whether HODC has the burden of demonstrating that its delinquency-curing check arrived before the foreclosure sale, or whether this would be part of Resources Group's burden to prove that it has superior title to the Property. We conclude that the burden must lie with HODC. Payment of a debt is an affirmative defense, which the party asserting has the burden of proving. See NRCP 8(c) (listing payment as an affirmative defense);\\nSchwartz v. Schwartz, 95 Nev. 202, 206 n.2, 591 P.2d 1137, 1140 n.2 (1979) (\\\"Since the averments of an affirmative defense are taken as denied or avoided, each element of the defense must be affirmatively proved. The burden of proof clearly rests with the defendant.\\\" (citations omitted)). At least one court to address the issue agrees. See Nguyen v. Calhoun , 105 Cal.App.4th 428, 129 Cal.Rptr.2d 436, 446 (2003) (\\\"The trustor-mortgagor or the person who alleges that a debt has been paid has the burden of proving payment.\\\" (internal quotation marks omitted)). Concluding that HODC bears the burden of proof on this issue, we now address whether it met that burden by proving that it paid the delinquency amount in full prior to the sale.\\nAlthough HODC does not argue on appeal that it met its burden of proof in this regard because it alleges that the burden was on Resources Group, it is clear from the record that HODC could not meet its burden. The evidence showed that, in its normal course of business, the mail would typically be delivered to NAS between 9:30 a.m. and 11:30 a.m., and that NAS would open and date-stamp its mail on the same day that it was delivered. HODC's check was date-stamped on February 13, 2015, the date of the sale, but no witness could credibly remember when the mail arrived that day, The district court stated, and we agree, that this evidence could only support a finding \\\"that HODC's check arrived between 9:30 a.m. and 11:30 a.m. on February 13, 2015.\\\" Because the foreclosure sale ended at 10:30 a.m., this finding does not demonstrate that HODC paid the delinquency before the foreclosure sale. Thus, HODC failed to meet its burden and has therefore failed to demonstrate good title in itself.\\nIII.\\nNRS 116.31164(3)(a) provides that, once payment has been made, the person that conducted \\\"the sale shall . [m]ake, execute and . deliver to the purchaser . a deed . which conveys to the grantee all title\\\" to the purchased property. The use of the word \\\"shall\\\" denotes a lack of discretion. Markowitz v. Saxon Special Servicing, 129 Nev. 660, 665, 310 P.3d 569, 572 (2013) (\\\"The word 'shall' is generally regarded as mandatory.\\\"); cf. In re Montierth, 131 Nev. 543, 550, 354 P.3d 648, 652 (2015) (\\\"A ministerial act is an act performed by an individual in a prescribed legal manner in accordance with the law, without regard to, or the exercise of, the judgment of the individual.\\\" (internal quotation marks omitted)); see also In re Rugroden, 481 B.R. 69, 78 (Bankr. N.D. Cal. 2012) (\\\"When a statute clearly gives an official no choice but to act, then the act is ministerial \\\"). NAS therefore lacked the discretion to refuse to deliver the deed based on information received after the sale was properly completed and after Resources Group tendered its bid. Having concluded that Resources Group has demonstrated good title and HODC failed to demonstrate it cured its default before the sale, we now address whether the sale should be set aside on equitable grounds.\\nThe district court erred by setting the sale aside on equitable grounds\\nResources Group argues that, under Shadow Wood, 132 Nev. 49, 366 P.3d 1105, HODC must demonstrate that the sales price was grossly inadequate and that there was fraud, unfairness, or oppression that resulted in the low sales price in order for the foreclosure sale to be set aside on equitable grounds. Resources Group further argues that HODC is not entitled to equitable relief under Shadow Wood because the sale was conducted properly, lawfully, and fairly; because the sales price was not grossly inadequate; and because, even if the sales price was grossly inadequate, HODC failed to show that there was fraud, unfairness, or oppression that brought about that low price.\\nConversely, HODC contends that Shadow Wood should be read broadly to recognize a court's equitable power to set aside a foreclosure sale based on the entirety of the circumstances. HODC argues that the use of the court's equitable powers are warranted under the circumstances presented by this case because the delinquency-curing payment was made on the same day as the foreclosure sale.\\nA district court's decision to set aside a foreclosure sale on equitable grounds is subject to an abuse of discretion standard of review. See Arsali v. Chase Home Fin. LLC , 121 So.3d 511, 519 (Fla. 2013) (\\\"Trial courts' judgments pertaining to set asides of judicial foreclosure sales are now, as they always have been, subject to review by way of an abuse of discretion standard.\\\"). The party seeking to set aside the sale on equitable grounds bears the burden to \\\"produce[ ] evidence showing that the sale was affected by fraud, unfairness, or oppression that would justify setting aside the sale.\\\" Nationstar Mortg., LLC v. Saticoy Bay LLC Series 2227 Shadow Canyon, 133 Nev. -, -, 405 P.3d 641, 643 (2017) (internal quotation marks omitted).\\nIn Shadow Wood we held that \\\"demonstrating that an association sold a property at its foreclosure sale for an inadequate price is not enough to set aside that sale [on equitable grounds]; there must also be a showing of fraud, unfairness, or oppression.\\\" 132 Nev. at 60, 366 P.3d at 1112. Shadow Wood also observed, however, that courts sitting in equity are required to analyze the totality of the circumstances when determining whether to set aside an HOA foreclosure sale on equitable grounds. See id. at 63, 366 P.3d at 1114 (\\\"When sitting in equity, . courts must consider the entirety of the circumstances that bear upon the equities.\\\"). HODC interprets \\\"totality of the circumstances\\\" to mean that this court is to look broadly at all of the circumstances surrounding the sale and the parties in determining whether to set aside the sale and not just focus on whether there was a low sales price that was brought about by fraud, oppression, or unfairness.\\nAs we subsequently clarified in Nationstar , this totality-of-the-circumstances analysis is tied to the traditional rule for determining whether to set aside a sale on equitable grounds. 133 Nev., at - - -, 405 P.3d at 648-49 (\\\"[I]f the district court closely scrutinizes the circumstances of the sale and finds no evidence that the sale was affected by fraud, unfairness, or oppression, then the sale cannot be set aside, regardless of the inadequacy of price.\\\"). That is, if the totality of the circumstances demonstrates that the sale itself was affected by \\\"fraud, unfairness, or oppression,\\\" then a court may set the sale aside. This has been the rule in Nevada since 1963. See Golden, 79 Nev. at 515, 387 P.2d at 995 (\\\"[I]t is universally recognized that inadequacy of price is a circumstance of greater or less weight to be considered in connection with other circumstances impeaching the fairness of the transaction as a cause of vacating it....\\\" (emphasis added) (quoting Odell v. Cox, 151 Cal. 70, 90 P. 194, 196 (1907) ).\\nHere, the alleged equities in favor of setting aside the sale include those expressly stated by the district court: (1) \\\"it was not unreasonable to assume that a check deposited in the main Las Vegas post office would be delivered within seven days to another Las Vegas address\\\"; (2) Resources Group was not unduly prejudiced, as the only prejudice was a loss of interest on the money spent on the bid, \\\"which could have been mitigated\\\"; (3) HODC would suffer \\\"extreme prejudice\\\" if the sale were not set aside; and (4) \\\"the Legislature intended to allow for the payment of community liens post sale by right of redemption.\\\" In addition, the record suggests that there are possibly several other equities in favor of setting aside the sale. First, the district court found that, although unlikely, the check could have arrived earlier than February 13, 2015. Second, HODC's president testified that he was a small-business man and lacked the sophistication to know that he should follow up on his delinquency payment. Third, HODC did not have the keys to the mailbox for its property until late 2014, so it was unaware of any prior delinquency notices. Indeed, the first time that HODC allegedly received any notice of the delinquency or prior notices was when HODC's president was personally served with the notice of foreclosure in the parking lot of the Property on February 6, 2015.\\nThe district court and HODC, however, fail to demonstrate that any of these equities constitute \\\"fraud, unfairness, or oppression\\\" that affected the sales price. Indeed, the district court acknowledged that the bid price was not inadequate and that there was no \\\"evidence that the price was infected with unfairness, fraud or oppression.\\\" Even if we broadly interpreted the \\\"unfairness\\\" factor to include these additional equities, we conclude that the equities would still weigh against HODC. HODC asserted that it did not have access to its mail to receive the initial delinquent assessment notices regarding the Property, but that was solely within HODC's control. Additionally, with regard to the check, HODC only mailed it in the regular course of mail, one week before the sale. At trial, HODC's president conceded that he failed to pursue other options, such as overnight delivery or certified mail. HODC's president also acknowledged that he could have delivered the check in person or called NAS to ensure that the check had arrived, but failed to do so. Based on these facts, we agree with the district court that \\\"HODC did nothing [beyond putting the check in the mail] to ensure the check had arrived and there were certainly a number of alternatives.\\\"\\nThe record reflects that HODC's lack of diligence-not \\\"fraud, unfairness, or oppression\\\"-is what led to the foreclosure sale. See Moeller v. Lien, 25 Cal.App.4th 822, 30 Cal.Rptr.2d 777, 785 (1994) (holding that a party was not entitled to equity in a foreclosure sale where the party's \\\"delays, negligence and inattention were the sole cause of the sale\\\");\\nChase Fin. Servs., LLC. v. Edelsberg, 129 So.3d 1139, 1142 (Fla. Dist. Ct. App. 2013) (holding that a party's lack of diligence is insufficient for setting aside a foreclosure sale on equitable grounds). Accordingly, we conclude that the district court abused its discretion by setting aside the sale on equitable grounds.\\nCONCLUSION\\nWe hold that Resources Group demonstrated superior title because it made payment of the bid amount upon conclusion of a foreclosure sale that complied with the statutory requirements, and HODC failed to demonstrate that the sale was void due to the deficiency being cured. Thus, NAS did not have the discretion to refuse to issue the foreclosure deed. We further hold that HODC is not entitled to equitable relief, as it has failed to demonstrate \\\"that the sale was affected by fraud, unfairness, or oppression.\\\" Nationstar, 133 Nev. at -, 405 P.3d at 643 (internal quotation marks omitted). Accordingly, we reverse the judgment of the district court and conclude that Resources Group is entitled to the foreclosure deed upon remand.\\nWe concur:\\nParraguirre, J.\\nStiglich, J.\\nDouglas, Sr. J.\\nThe 2015 Legislature substantially revised NRS Chapter 116. See Shadow Wood Homeowners Ass'n, Inc. v. NY. Cmty. Bancorp, Inc., 132 Nev. 49, 56 n.2, 366 P.3d 1105, 1109 n.2 (2016). The references in this opinion to NRS Chapter 116 statutes are to the version of the statutes in effect when the events in this case occurred, which was before the effective date of the 2015 amendments.\\nResource Group later voluntarily dismissed the UOA without prejudice pursuant to NRCP 41(a)(1)(i).\\nThe covenants, conditions, and restrictions (CC & Rs) governing the Property imposed the same requirements as those required by statute.\\nResources Group argues that HODC waived the issue of payment because it did not plead it in its responsive pleadings below. A party waives an affirmative defense where the \\\"party fails to raise the affirmative defense in any pleadings or any other papers filed with the court, including its answer, pretrial statement, or post-trial brief.\\\" City of Boulder City v. Boulder Excavating, Inc., 124 Nev. 749, 755 n.12, 191 P.3d 1175, 1179 n.12 (2008) (internal quotation marks omitted). Nevertheless, we have held \\\"that an affirmative defense can be considered (if not pleaded) if fairness so dictates and prejudice will not follow.\\\" Ivory Ranch, Inc., v. Quinn River Ranch, Inc., 101 Nev. 471, 473, 705 P.2d 673, 675 (1985). Here, fairness dictates that we consider HODC's arguments regarding payment, as those arguments are crucial for determining whether the sale was void. In addition, no prejudice would follow because \\\"[o]ne who bids upon property at a foreclosure sale does so at his peril,\\\" Henke, 586 S.W.2d at 620, and thus, if a sale is void, a purchaser should not be entitled to reap a windfall.\\nAn agent of Resources Group testified he remembered seeing the mail being delivered after the foreclosure sale was completed, but the district court found that testimony not to be credible and we will not reassess witness credibility on appeal. See Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007).\\nResources Group also argues that HODC had no right to redemption under the CC & Rs or statutory law because the sale was conducted properly, and the UOA CC & Rs provide that a properly conducted sale vests title in the purchaser without the unit owner's equity or redemption. In Shadow Wood , however, this court held that \\\"[h]istory and basic rules of statutory interpretation confirm our view that courts retain the power to grant equitable relief from a defective foreclosure sale when appropriate despite NRS 116.31166 .\\\" 132 Nev. at 57, 366 P.3d at 1110-11 (emphasis added). Courts can also provide equitable relief despite the language in the CC & Rs. See McKnight Family, LLP v. Adept Mgmt. Servs., Inc., 129 Nev. 610, 615, 310 P.3d 555, 558 (2013) (recognizing the contractual nature of CC & Rs); Wainwright v. Dunseath, 46 Nev. 361, 366, 211 P. 1104, 1106 (1923) (holding that \\\"courts of equity have the power to order the reformation of deeds [or] contracts\\\").\\nHODC also argues that it should be granted equitable relief because Resources Group failed to demonstrate it had good title. Having already concluded that Resources Group demonstrated good title in itself, we do not address this argument further.\\nAs noted earlier, the 2015 Legislature made substantial changes to NRS Chapter 116. As the revised version of NRS 116.3116 did not apply to the present case, and the 2014 version of the statute unambiguously did not allow for a right of redemption, the district court erred by gleaning an intent by the Legislature to provide for a post-sale right of redemption.\\nHODC does not dispute the sufficiency of the notices.\\nAs HODC received, at least, the notice of foreclosure sale, it was aware that it needed to cure the deficiency before the date of the foreclosure sale as the notice provided as follows:\\nWARNING! A SALE OF YOUR PROPERTY IS IMMINENT! UNLESS YOU PAY THE AMOUNT SPECIFIED IN THIS NOTICE BEFORE THE SALE DATE, YOU COULD LOSE YOUR HOME, EVEN IF THE AMOUNT IS IN DISPUTE.\\n(Emphasis added.) See NRS 116.311635(3)(b). The notice also provided the date of the sale; thus, HODC was on notice that the Property could be lost if the amount specified was not paid by February 12, 2015, not the date of the foreclosure sale.\"}"

nev/2374308.json

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+"{\"id\": \"2374308\", \"name\": \"STATE OF NEVADA, Ex Rel. GEO. B. THATCHER, as Attorney-General, Petitioner, v. GEORGE W. KEITH, Respondent\", \"name_abbreviation\": \"State ex rel. Thatcher v. Keith\", \"decision_date\": \"1914-07\", \"docket_number\": \"No. 2133\", \"first_page\": 452, \"last_page\": 457, \"citations\": \"37 Nev. 452\", \"volume\": \"37\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T23:38:40.435776+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NEVADA, Ex Rel. GEO. B. THATCHER, as Attorney-General, Petitioner, v. GEORGE W. KEITH, Respondent.\", \"head_matter\": \"[No. 2133]\\nSTATE OF NEVADA, Ex Rel. GEO. B. THATCHER, as Attorney-General, Petitioner, v. GEORGE W. KEITH, Respondent.\\n[142 Pac. 532]\\n1. Elections \\u2014 Registration\\u2014Designation oe Political Party-Right to Change.\\nUnder the election laws of 1913 (Stats. 1913, c. 284, snbc. 3, sec. 18), relating to primary elections, and subchapter 2, secs. 4, 5, relating to registration, an elector who has registered, so as to be entitled to vote at a primary election, by designating his political party and having same entered on the registry, cannot subsequently require the registry agent to change such designation.\\n2. Elections \\u2014 Registration-\\u2014-Designation oe Political Party.\\nUnder the election laws of 1913 (Stats. 1913, c. 284, sube. 3, sec. 18), relating to primary elections, and subchapter 2, secs. 4, 5, relating to registration, where an elector has registered, but has failed to indicate his politics or party designation, he may, prior to the time fixed for closing registration, apply to the registry agent and have an entry made on the registry of his politics or party designation so as to entitle him to vote at a primary election.\\n3. Elections \\u2014 Registration\\u2014Designation oe Politics \\u2014 \\u201cI-Ieretoeore.\\u201d .\\nAs used in the election laws of 1913 (Stats. 1913, e. 284, sube. 3, sec. 18), providing that an elector shall not be entitled to vote at a primary election \\u201cunless he has heretofore designated to the registry agent his politics,\\u201d the word \\u201cheretofore\\u201d relates to the time in which an elector may lawfully be registered for the primary election.\\nOriginal proceeding in prohibition by the State, on the relation of Geo. B. Thatcher, against George W. Keith.\\nWrit granted as to one of the two questions presented and denied as to the other.\\nGeo. B. Thatcher, Attorney-General, for Relator.\\nW. W. Griffin, for Respondent.\", \"word_count\": \"1970\", \"char_count\": \"11776\", \"text\": \"By the Court,\\nNorcross, J.:\\nThis is an original proceeding in prohibition, and the petition presents two questions under the election laws: First, can an elector who has registered so as to entitle him to vote at the primary election by designating and having entered upon the registry the politics or political party of such elector, subsequently apply to the registry agent and have changed the designation of his political party? Second, can an elector who has registered and who has failed or refused to indicate his politics or party designation, prior to the time fixed for close of registration for the primary election, apply to the registry agent and have entered on the register his politics or party designation so as to entitle him to vote at the primary election?\\nUpon both questions above presented we are without precedent. It is the contention of the attorney-general that they should be answered in the negative. Counsel for respondent agrees with the attorney-general as to the first question, but contends that the second question should be answered in the affirmative.\\nSection 18 of \\\"Chapter 3 \\u2014 Primary Elections\\\" of the election laws of 1913 contains the provision: \\\"No elector shall be entitled to vote at primary elections unless he has heretofore designated to the registry agents his politics or political party to which he belongs and has caused to be entered upon the register by such agents his politics or the political party to which he belongs. \\\" (Stats. 1913, p. 521.)\\nSection 4 of \\\"Chapter 2 \\u2014 Registration\\\" of the same act provides that the county commissioners \\\"shall furnish to each registry agent a book which shall be known as the 'Official Register,' which shall be ruled in columns of suitable dimensions to provide for the following entries opposite the name of each elector, to wit:\\n\\\"First \\u2014 Number on the register.\\n\\\"Second \\u2014 Date of registry.\\n\\\"Third \\u2014 Name of elector.\\n\\n\\\"Eleventh \\u2014 Designating the politics or political party of the elector; provided, that said elector shall not be required to designate his politics or the political party to which he belongs and the registry agent shall not be required to enter the same on the registry unless said elector intends to vote at a primary election provided for by law; and in no event shall any elector, who has refused or failed to indicate his politics or the political party to which he belongs, as herein required, be entitled to vote at any primary election.\\\" (Stats. 1913, p. 495.)\\nSection 5 of the same chapter (\\\"Registration\\\") provides :\\n\\\"It shall be the duty of the registry agents, at any time when called on to do so, to receive and register the names of all persons legally qualified and entitled to vote at such election, entering on the official register under the proper heading, the number and date of registry, the name, the age and nativity of the elector, and when the person so registered shall be of foreign birth, the fact of the exhibition of or failure to exhibit his certificate of naturalization shall be noted in the column provided for that purpose, which list, properly entered, as in this section required, shall be known as the 'Official Register' of elections of their respective townships; provided, further, that if any person shall fail or refuse to give his residence and the other information, with the particularity required in this section, he shall not be registered; and provided further, that no person shall be deemed to be registered for the September primary election unless he shall have been so registered on or before the 20th day of August next preceding the date of such election.\\\" (Stats. 1913, p. 495.)\\nThe powers and duties of a registry agent are matters of statutory regulation entirely. (15 Cyc. 304.) There is no provision in our election laws, such as exists in the laws of California, specifically authorizing the registry agent upon affidavit of the registered elector filed before the close of registration to change the political designation of an elector or to make such designation where none was given at the time of registration. (Schostag v. Cator, 151 Cal. 604, 91 Pac. 503, cited and quoted from in Riter v. Douglass, 32 Nev. 436, 109 Pac. 444.)\\nThe question came up in the Schostag case of the right of an elector to change his political affiliation after the close of registration for the primaries and to vote the party primary ticket of another party than that which the register showed him to be affiliated with. In denying the right to so vote the court, speaking through Beatty, C. J., said:\\n\\\"It is contended that the test prescribed by section 1366a, Pol. Code, is unreasonable, because, with the close of registration, the elector loses his right to change his party allegiance in consequence of a change in his political convictions, and is precluded from taking part in the election of delegates to the convention of the party with which on the day of the election his more matured opinions would impel him to cast in his lot. This inconvenience certainly does result from the provisions of the act, but the legislature, which must be presumed to have foreseen it, probably regarded such sudden conversions during the short interval between the close of registration and the date of the primary election as likely to be of such rare occurrence as not to justify the omission of a provision evidently designed to prevent unscrupulous and mercenary electors from holding themselves free down to the day of election to vote with any party, upon any corrupt motive, for the purpose of influencing the nomination of its candidates for public office, while without any interest in their success, and perhaps with an interest in their defeat. If it shall sometimes happen that a conscientious voter is converted from one political faith to another between the close of registration and the primary election, he may console himself for the loss of his vote by the reflection that his loss is trifling in comparison to his share of the advantage to the state of which he is a citizen, flowing from a measure which tends to prevent a grave abuse, especially in those centers of population where the primary election law is made obligatory.\\\"\\nIn Stinson v. Sweeney, 17 Nev. 309, 30 Pac. 997, it was held that the provisions of the registry law, when necessary to preserve the purity of elections, should be strictly pursued.\\nWe think the reasons which support a holding that the registration agent is without power to change the political designation of an elector after he has once registered for the primary election do not necessarily apply in the case where an elector at the time of registration fails or refuses to give to the registry agent his party affiliation. The statute does not require the registry agent to make note of such failure or refusal. The elector is properly registered so as to entitle him to vote at the general election, but is not registered at all for the primary election. If, before the close of registration for the primary election, such elector should apply to the registry agent and request to be registered for such primary election, all that the registry agent would be required to do would be to enter in the column provided for that purpose, which theretofore remained blank, the party designation requested.\\nBy section 4 of chapter 2, supra, the elector, at the time of registering, is not required to designate his politics or the political party to which he belongs, and the registry agent is not required to make any entry of political designation, where no such intent to vote is expressed. Section 5 of the same chapter authorizes registration of an elector, in order to vote at the primary election, to be made on or before the 20th day of August.\\nSection 18 of chapter 3, supra, provides that the elector shall not be entitled to vote at the primary election \\\"unless he has heretofore designated to the registry agent his politics.\\\" The word \\\"heretofore,\\\" as used in this section, relates to the time in which an elector may lawfully be registered for the primary election. If an elector registers for the general election, as he is authorized to do, on or before August 20, without designating his party affiliation, at the most, he may be said to have manifested only an intent not to vote at the primary election. Having the lawful right to vote at the primary election, for which he is not registered at all, we can see no reason why he may not, subsequently and before the primary registration closes, change his mind in so far as doing a specific act is concerned, to wit, vote at the primary election and notify the registry agent of his present intent to so vote, and request registration accordingly. The registry agent is not called upon, in such case, to change any entry theretofore made upon the register, as would be the case where an elector requested a change in his political designation, but simply to make an entry in the blank space in the register prepared for the purpose, showing the elector has qualified himself to vote at the primary. By making such an entry, as before stated, registration for the primary election is thus effected where before no registration for such election existed. Such a construction does no violence to the language of the statute, but is in accordance with its plain import.\\nFrom the argument of respondent's counsel, we assume that respondent does not contemplate making changes in the political designation of electors already registered for the primary election. However, as the demurrer admits the facts alleged in the petition, it will be ordered that a writ issue, upon application to the clerk therefor by the attorney-general, prohibiting respondent from changing the political designation of electors registered for the primary election.\\nAs to the second question discussed in the opinion, the writ is denied.\"}"

nev/2417349.json

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+"{\"id\": \"2417349\", \"name\": \"VIRGINIA KIRK CORD, Appellant, v. CHARLES E. CORD and EDWARD D. NEUHOFF, Co-Executors of the Estate of E. L. CORD, aka ERRETT L. CORD, aka ERRETT LOBBAN CORD, Deceased, and Individually, Respondents\", \"name_abbreviation\": \"Cord v. Cord\", \"decision_date\": \"1982-05-12\", \"docket_number\": \"No. 13040\", \"first_page\": 210, \"last_page\": 216, \"citations\": \"98 Nev. 210\", \"volume\": \"98\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T22:44:03.641637+00:00\", \"provenance\": \"CAP\", \"judges\": \"Gunderson, C. J., Manoukian and Springer, JJ., Zenoff, Sr. J., and Mendoza, D. J., concur.\", \"parties\": \"VIRGINIA KIRK CORD, Appellant, v. CHARLES E. CORD and EDWARD D. NEUHOFF, Co-Executors of the Estate of E. L. CORD, aka ERRETT L. CORD, aka ERRETT LOBBAN CORD, Deceased, and Individually, Respondents.\", \"head_matter\": \"VIRGINIA KIRK CORD, Appellant, v. CHARLES E. CORD and EDWARD D. NEUHOFF, Co-Executors of the Estate of E. L. CORD, aka ERRETT L. CORD, aka ERRETT LOBBAN CORD, Deceased, and Individually, Respondents.\\nNo. 13040\\nMay 12, 1982\\n644 P.2d 1026\\n[Rehearing denied December 16, 1982]\\nNada Novakovich, Reno, for Appellant.\\nBradley & Drendel, Reno, for Respondents.\\nThe Chief Justice designated The Honorable David Zenoff, Senior Justice, to sit in place of The Honorable Cameron Batjer, Justice. Nev. Const., art. 6, \\u00a7 19; SCR 10.\\nThe Governor designated the Honorable John F. Mendoza, District Judge of the Eighth Judicial District, to sit in this case in place of The Honorable John Mowbray, Justice, who voluntarily disqualified himself. Nev. Const., art. 6, \\u00a7 4.\", \"word_count\": \"1982\", \"char_count\": \"12104\", \"text\": \"OPINION\\nPer Curiam:\\nVirginia Cord appeals from a judgment declaring all assets from the estate of E. L. Cord to be separate property. This represents the second appeal between the parties.\\nIn the initial case of Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978), we held a post-nuptial agreement between Mr. and Mrs. E. L. Cord invalid. We reversed and remanded the case for the district court to determine whether any of E. L. Cord's estate should be apportioned as community property.\\nOn remand, the parties stipulated that from 1937 to 1953, 11.6 percent of E. L. Cord's separate holdings constituted community property. The parties entered into this stipulation based on footnote number four in Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978). Consequently, the scope of trial was confined to the financial and business activity of E. L. Cord from 1953 until his death in 1974.\\nDuring the two-week non-jury trial, several expert witnesses testified on the various accounting procedures they used in apportioning E. L. Cord's estate. Appellant's expert witnesses testified that under their formulas, 79.37 percent of E. L. Cord's separate estate should be allocated to the community. In contrast, the respondents' expert witnesses ultimately concluded that there was no community property at E. L. Cord's death in 1974.\\nThe district court held that the accounting methods and evidence presented by the respondents was more credible than the evidence presented by appellant. The lower court dismissed appellant's action and held all assets of E. L. Cord to be separate property. We affirm.\\nThe district court found that E. L. Cord \\\"expended only minimal time and effort in the supervision and investment of his separate property during the years 1953 to 1974.\\\" Appellant contends that in so ruling, the lower court failed to follow the law of the case as mandated in Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978).\\nIn Cord v. Neuhoff, supra, this court noted, \\\"there is no suggestion that the increased value of Errett's estate was due to a natural enhancement, or that he expended only minimal effort. The evidence is otherwise and establishes that he devoted great time and energy to the management of his wealth.\\\" In the initial Cord case, the only evidence presented was the post-nuptial contract and financial records of E. L. Cord from 1937 to 1953. Thus, this court did not consider any evidence regarding the status of E. L. Cord's separate wealth or the time, effort and skill he used in amassing it from 1953 to 1974.\\nA principle or rule of law enunciated by an appellate court which is necessary to the decision, becomes the law of the case and must be followed throughout its subsequent progress both in the lower court and upon subsequent appeal. The law of the first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same. LoBue v. State ex rel. Dept. Hwys., 92 Nev. 529, 554 P.2d 258 (1976); see also Walker v. State, 85 Nev. 337, 455 P.2d 34 (1969); and State v. Loveless, 62 Nev. 312, 150 P.2d 1015 (1944).\\nIn the instant case, appellant erroneously concludes that the law and facts presented in her first appeal are substantially the same as those presented herein. In Cord v. Neuhoff, supra, our decision was premised upon the parties involvement in a post-nuptial agreement. Moreover, this court only considered evidence relating to E. L. Cord's financial activity from 1937 to 1953. Here, the financial matters at issue, as well as the factual circumstances surrounding them, involve the years 1953 to 1974. We conclude the doctrine of law of the case was not violated by the lower court under the circumstances presented herein.\\nNext, appellant suggests the lower court erred in finding that the separate property of E. L. Cord was entitled to reimbursement for expenditures for community expenses after community assets were exhausted.\\nAppellant relies on the California Supreme Court case of See v. See, 64 Cal.2d 778, 51 Cal.Rptr. 888, 415 P.2d 776 (1966), wherein the court held: '[A] husband who elects to use his separate property instead of community property to meet community expenses cannot claim reimbursement. In the absence of an agreement to the contrary, the use of his separate property by a husband for community purposes is a gift to the community.\\\" The facts in See v. See, supra, reflect that the plaintiff husband made a conscious election to spend his separate wealth on community expenses and was guilty of commingling his separate funds with community funds.\\nThe facts in the instant case are more akin to those found in Beam v. Bank of America, 6 Cal.3d 12, 98 Cal.Rptr. 137, 490 P.2d 257 (1971). In Beam v. Bank of America, supra, the plaintiff husband assumed during the course of marriage that all his funds were his separate property. The evidence reflected that Mr. Beam did not make a conscious choice to spend his separate property on community expenses. The court in Beam distinguished See v. See, supra, and noted:\\nIn the instant case, of course, Mr. Beam made no conscious choice to spend his separate property, rather than the \\\"imputed\\\" community property on the family's living expenses. Only by means of a formula now applied by the court do we divide Mr. Beam's income into theoretical \\\"community\\\" and \\\"separate\\\" portions; Beam could hardly draw upon a fictionalized separate source to pay family expenses. Thus our decision in See is simply not in point.\\nBeam v. Bank of America, 6 Cal.3d 12, 98 Cal.Rptr. 137, 144, 490 P.2d 257, 264 (1971).\\nHere, E. L. Cord's expenditures for community expenses were made while operating under the assumption that the parties' post-nuptial agreement was valid, and all his funds were his separate property. Consequently, E. L. Cord never made a conscious choice to spend his separate property on community expenses which exceeded community assets.\\nIf E. L. Cord had made a conscious choice to use his separate property, rather than available community property, to pay community expenses, such use of his separate property would have constituted a gift to the community for which reimbursement could not be claimed. See See v. See, 64 Cal.2d 778, 51 Cal.Rptr. 888, 415 P.2d 776 (1966). The record clearly establishes, however, that E. L. Cord assumed through the years 1953 until his death in 1974 that all of his funds were his separate property. He did not consciously elect to pay for community expenses out of income which is now deemed separate in character.\\nThe standard enunciated in Beam v. Bank of America, 6 Cal.3d 12, 98 Cal.Rptr. 137, 490 P.2d 257 (1971) supports the district court's ruling requiring reimbursement to E. L. Cord's separate estate for expenditures on family living expenses in years when community assets were exhausted.\\nUnder the law, rents and profits from a spouse's separate property constitute separate property. However, all property acquired after marriage is presumed to be community property. This presumption may be rebutted by clear and convincing evidence. Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970).\\nIt is well settled that there must be an apportionment of any increment in value between the separate estate of the owner and the community, unless the increment is due solely to a natural enhancement of the property or minimal effort by the owner. Pereira v. Pereira, 156 Cal. 1, 103 P. 488 (1909); Johnson v. Johnson, 89 Nev. 244, 510 P.2d 625 (1973); Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978). In the instant case, the district court found that E. L. Cord did not take an active part in any business he invested in or expend any time, energy or skill in managing real property he owned. The court also found that any increase in value of his separate property was attributable to other managers or general economic conditions.\\nThe record reflects that from 1953 to E. L. Cord's death in 1974, many of Cord's assets increased in value due to natural enhancement and escalating real estate values. During this time period, E. L. Cord's health noticeably declined. Consequently, he delegated substantial authority to his son Charles, who acted as general manager for a number of Cord businesses. Respondents presented several fact witnesses who testified about E. L. Cord's work habits and declining health. Many of these same witnesses testified that Cord's assets increased in value due to substantial holdings in raw land, inflationary factors, and natural enhancement.\\nAppellant called only one fact witness, who had sporadic contact with E. L. Cord. He testified that Cord made all final decisions regarding his various business interests until his death in 1974.\\nBoth parties introduced expert testimony in the area of accounting. The experts for respondents and appellant based their formulations on the year-by-year apportionment method enunciated in Pereira v. Pereira, 156 Cal. 1, 103 P. 488 (1909). Although the expert accounting witnesses for both parties testified that they utilized the Pereira apportionment method, their particular accounting formulas resulted in vastly different findings.\\nThe district court was presented with extremely conflicting evidence involving both factual and accounting issues. \\\"Where a trial court, sitting without a jury, has made a determination upon the basis of conflicting evidence, that determination should not be disturbed on appeal if it is supported by substantial evidence.\\\" Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973); see also Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950). Thus, the record must reveal that the judgment was clearly erroneous and not based upon substantial evidence before the district court will be reversed. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).\\nWe cannot say from this record that the trial court erred in determining that the position propounded by appellant was not adequately proved to the satisfaction of the court. Appellant's other points of error being without merit, we affirm.\\nGunderson, C. J., Manoukian and Springer, JJ., Zenoff, Sr. J., and Mendoza, D. J., concur.\\n\\\"4The financial records before the court, 1937 to 1953, are revealing in this regard. A year-by-year Pereira analysis discloses that between 1937 and 1946, Virginia acquired no community property, because the yearly income generated by the preceding year's net worth was always less than 7 percent. In 1947, however, income exceeded 7 percent, thus generating community income which, when decreased by 1947 community expenses, constituted 3.5 percent of the 1947 year-end net worth. Again in 1948, the income generated by the 96.5 percent of the corpus remaining separate property exceeded a normal 7 percent return, resulting in an allocation of the excess to the community estate. This excess, when added to the income directly generated by the 3.5 percent of the corpus constituting community property and decreased by 1948 expenses, increased the community interest in the entire corpus to approximately 15.8 percent. In all years between 1949 and 1952, community expenses exceeded community income, thus causing a decrease in residual community holdings. Thus on December 31, 1952, approximately 11.6 percent of the holdings constituted community property.\\\" Cord v. Neuhoff, 94 Nev. 21, 27, 573 P.2d 1170, 1174 (1978) (emphasis in original).\"}"

nev/2421794.json

@@ -0,0 +1 @@
+"{\"id\": \"2421794\", \"name\": \"EDWARD FRIENDLY, Et Al., Appellants, v. A. L. LARSEN, Et Al., Etc., Respondents\", \"name_abbreviation\": \"Friendly v. Larsen\", \"decision_date\": \"1944-01-12\", \"docket_number\": \"No. 3386\", \"first_page\": 135, \"last_page\": 142, \"citations\": \"62 Nev. 135\", \"volume\": \"62\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T17:17:56.226031+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EDWARD FRIENDLY, Et Al., Appellants, v. A. L. LARSEN, Et Al., Etc., Respondents.\", \"head_matter\": \"EDWARD FRIENDLY, Et Al., Appellants, v. A. L. LARSEN, Et Al., Etc., Respondents.\\nNo. 3386\\nJanuary 12, 1944.\\n144 P. 2d 747.\\nMilton B. Badt, of Elko, for Appellants.\\nMcNamara & Robbins and A. L. Puccinelli, all of Elko, for Respondents.\", \"word_count\": \"1906\", \"char_count\": \"11221\", \"text\": \"OPINION\\nBy the Court,\\nOrr, C. J.:\\nRespondents were engaged by appellants to reconstruct a dwelling house, construct new buildings, and repair others, all situate upon what is known as the Sam McMullen ranch, in Elko County, Nevada. After the completion of the work a disagreement arose between the parties as to the amount due from appellants to respondents. Respondents filed a mechanic's lien against the said property, and later brought suit to foreclose it. The district court rendered judgment in favor of the respondents in the sum of $2,910.69, together with costs of suit and an attorney's fee in the sum of $750, which said judgment was declared to be a lien upon certain premises described therein.\\nThis appeal presents, almost exclusively, questions of fact which have been resolved in favor of respondents by the trial court, and, of course, the findings of the trial court will be sustained if there is any substantial evidence in the record supporting them. Round Mountain Min. Co. v. Round Mountain Sphinx Co., 35 Nev. 392, 129 P. 308; Murray v. Osborne, 33 Nev. 267, at page 277, 111 P. 31; Botsford v. Van Riper, 33 Nev. 156, 110 P. 705; Indiana N. M. Co. v. Gold Hills Co., 35 Nev. 158, 126 P. 965; McStay Supply Co. v. Stoddard, 35 Nev. 284, 132 P. 545; Girton v. Daniels, 35 Nev. 438, 129 P. 555; Rawhide Balloon F. M. Co. v. Rawhide Coalition M. Co., 33 Nev. 307, 111 P. 30; Jensen v. Wilslef, 36 Nev. 37, 132 P. 16, Ann. Cas. 1914d, 1220; Round Mountain Min. Co. v. Round Mountain Sphinx Co., 36 Nev. 543, 138 P. 71; Rehling v. Brainard, 38 Nev. 16, 144 P. 167, Ann. Cas. 1917c, 656; Gaston v. Avansino, 39 Nev. 128, 154 P. 85; Carey v. Clark, 40 Nev. 151, 161 P. 713; Clark Co. v. Francovich, 42 Nev. 321, 176 P. 259; McNee v. McNee, 49 Nev. 90, 237 P. 534, 537; O'Banion v. Simpson, 44 Nev. 188, 191 P. 1083.\\nAppellants recognize this rule, but insist that a study of the record will disclose that as to the questions presented the findings of the trial court have no substantial support therein.\\nWe have decided not to quote the voluminous extracts from the evidence to which we have been referred by respective counsel, believing that to do so would be of little value.\\nThe first point made by appellants is that the evidence establishes that respondents received a discount on the material furnished, and that said discount was not passed on to appellants. The appellants and respondents agree that the contract for the dwelling house was for the specified sum of $10,303 or for cost plus seven percent, whichever might be the lower. Respondents contend that the appellants were not charged one cent in excess of $10,303 for the work done under the original contract for the reconstruction, repair and improvement of the dwelling house under the Vahy plans and specifications, and their contention finds substantial support in the evidence. However, certain specified work and construction is conceded to have been performed on a cost plus basis, and as to this construction it is urged the respondents obtained, and retained for their sole benefit, discounts; that as a matter of law such an advantage cannot legally be taken by a contractor as against the principal. Green v. Post, 135 Wash. 209, 237 P. 307. That such is the law is conceded by respondents, and such is the view held by the trial court. However, appellants complain that said court failed to apply that rule. We have read the record and particularly the portions cited by counsel, and we are convinced that substantial evidence exists to sustain the finding of the trial court that appellants received the benefit of all discounts given the respondents on the prices of materials used in the construction and repair of the buildings, and hence the finding of the trial court is sustained.\\nThe next assignment of error relied on deals with two written change orders. The first written change order contains sixteen changes, and the second eighteen changes. All of the additions in these changes were allowed by the court, and a few subtractions were allowed. However, subtractions aggregating $391.16 were disallowed. Respondents discuss these items in detail, with many references to the record and quoting of testimony in support of their contention that substantial evidence exists to sustain the findings of the trial court. We find such to be the fact, and the finding of the trial court is sustained. As to other items not involved in written change orders, appellants frankly concede that most of these items were the subject of conflicting testimony, but claim that the evidence indicates clearly gross and unwarranted padding of items of labor and material. Some of the items were disallowed by the trial court. We think the trial court gave careful consideration to the evidence relative to the items in question, and that the claims of the appellants were disallowed only in such instances as the evidence on the part of the respondents substantially justified and sustained a finding in their favor.\\nThe next proposition deals with extras which appellants claim the respondents were bound to supply under the terms of the contract. Certain claimed deductions were asked by appellants of the trial court; some were allowed and others disallowed. We think the court took the proper view of the law and the facts in making a determination of this claim.\\nThe fourth contention relates to a claim as extras in relation to what appellants insist is the use of respondents' own tools. We will dispose of this matter by stating that the evidence in respect thereto was sufficient to justify the court in making the finding that it did.\\nThe fifth contention made by appellants is that the court adopted its own lines, courses, distances and extent in determining, without allegations in the pleadings and without evidence, the necessary ground for the convenient use and occupancy of the buildings, and included them in the lien foreclosure decree. In support of this contention appellants state, in substance, that the complaint describes the entire ranch property, and, further, that the complaint did not describe the premises upon which the lien is claimed with reasonable certainty or sufficiently for identification. Paragraph IV of the complaint reads:\\n\\\"That between the 1st day of May, 1941, and the 10th day of September, 1941, in Elko County, Nevada, said plaintiff entered into certain contracts with said defendants, Edward Friendly and his said wife, for the construction, erection, repair, reconditioning and improving of those certain buildings, structures, houses, barns, chicken houses, cess pools, etc., hereinafter described and referred to, and to furnish the materials, supplies and work and labor therefor to be used in the building and construction of said premises, for the use and benefit of said defendants, all of which are situate, so plaintiff is informed and believes, and therefore, alleges the fact to be, on the NE*4 of the SWI4 of Section 24, Township 36 North, Range 59 East, M. D. B. & M., and which said premises are embraced in the following lands and premises in the County of Elko, State of Nevada, commonly known as and called the S. P. McMullen Ranch, to-wit:\\n\\\"Those certain premises mentioned and referred to in that certain notice of completion of work dated October 16, 1941, and filed of record in the office of the County Recorder of the County of Elko, State of Nevada, at Elko, Nevada, on October 16, 1941, and recorded in Book 12 of Miscellaneous Records at page 142, which said notice is signed by Edward Friendly on behalf of Margaret Elliott Burch Friendly, and which was filed by said Edward Friendly, which said premises are generally known and in said notice referred to as the S. P. McMullen Ranch Properties in Star Valley, said County and State, and which are embraced in the following described lands, to-wit:\\\"\\nImmediately following these allegations, the S. P. McMullen ranch referred to therein is described by legal subdivisions.\\nAnd the statement in the lien claim, which is made a part of the complaint, reads as follows: \\\"That said contractor, therefore, holds and claims a lien against a reasonable portion of said real estate upon which said buildings and improvements are situate, and also said buildings and improvements, and each of them, for the unpaid portion of said contract prices in the sum of $3,156.29, .\\\"\\nThe lien was made a part of the complaint, and said lien and the complaint should be read together. These allegations establish the fact that the buildings in question were situate upon a certain quarter section of ranching property which was in the possession and ownership of the appellants, which said quarter section was particularly described. Such a description is sufficient for identification. Appellants understood that a quarter section only, and not the entire ranch property, was claimed for the convenient use and occupation of the buildings, for it is stated in appellants' opening brief that their answer filed in the trial court denied \\\"that the entire 40 acre tract referred to in the complaint was necessary for the convenient use and occupation of the building.\\\"\\nIt is strenuously insisted by appellants that there is not one scintilla .of evidence in the record upon which the court could base its conclusion as to the amount of land necessary for the convenient use of the buildings. The court marked out upon a map which had been admitted in evidence the portions of the premises which it deemed necessary for this purpose. While it is true that we do not find in the record any direct statement from any witness that a specifically described portion of the property is or was necessary for the convenient use of the buildings, yet the witness Settelmeyer testified that he had made a survey of the premises and had prepared a map, which is in evidence, showing the relation of the different buildings and the land upon which they were situate, together with the courses and distances. This enabled the court to have exact knowledge of the situation as it exists upon the land, and from which the trial court could draw its conclusion as to what land was necessary and convenient for the use of the property. We not only think that the evidence presented in this respect was ample, but that it was of the highest order and much more satisfactory upon which to base a finding than had a witness merely testified as to his or her opinion that certain portions of the land were necessary or sufficient for the use of the property.\\nAs to point No. 6, relative to the value of labor and materials, in our opinion the finding on this proposition also is supported by substantial evidence in the record, and is sustained.\\nWe think that under the circumstances the attorney's fees of $750 allowed by the court is reasonable. The record sustains the view that a great amount of work was performed by counsel for respondents in the preparation and trial of the case.\\nJudgment affirmed.\"}"

nev/2421844.json

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+"{\"id\": \"2421844\", \"name\": \"ELIZABETH M. KOHLSAAT, Appellant, v. EDWARD C. KOHLSAAT, Respondent\", \"name_abbreviation\": \"Kohlsaat v. Kohlsaat\", \"decision_date\": \"1945-01-29\", \"docket_number\": \"No. 3422\", \"first_page\": 485, \"last_page\": 492, \"citations\": \"62 Nev. 485\", \"volume\": \"62\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T17:17:56.226031+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELIZABETH M. KOHLSAAT, Appellant, v. EDWARD C. KOHLSAAT, Respondent.\", \"head_matter\": \"ELIZABETH M. KOHLSAAT, Appellant, v. EDWARD C. KOHLSAAT, Respondent.\\nNo. 3422\\nJanuary 29, 1945.\\n155 P. (2d) 474.\\nC. D. Breeze, of Las Vegas, for Appellant.\\nHam & Taylor, of Las Vegas, for Respondent.\", \"word_count\": \"1963\", \"char_count\": \"11054\", \"text\": \"OPINION\\nBy the Court,\\nORR, J.:\\nRespondent was granted a decree of divorce on the ground of three years separation. Appellant complains that the trial court abused the discretion vested in it by law, in the following particulars: first, in refusing to set aside appellant's implied waiver of a jury trial; second, in refusing a continuance in order to permit one of appellant's counsel to reach Las Vegas, Nevada; and, third, in granting respondent a decree of divorce. It is further urged by appellant that the trial court erred in refusing to adopt certain additions to and modifications of the findings proposed by appellant.\\nOn the 25th of February 1944 at the calling of the law and motion calendar in the district court, upon motion of respondent the case was set for trial for March 16, 1944. Counsel for the appellant was not present in court. Pursuant to the requirement of statute, counsel for appellant was given notice of the setting on the 25th of February 1944. On Friday, March 3, 1944, more than five days after the service upon counsel for appellant of the said notice of setting, appellant's counsel applied to the court for a jury trial. This was objected to by respondent, upon the ground that a jury trial had been waived by failure of the appellant to demand a jury trial within five days after notice of the setting of the case for trial, as is required by section 8782, N. C. L. 1929. The court sustained the objection and refused to grant appellant a jury trial.\\nIt is argued that a jury trial should have been granted under the provisions of art. I, sec. 3, of the Constitution of the State of Nevada. It is conceded that the right of trial by jury is provided for, both by constitutional and statutory provisions, article I, section 3, Constitution of Nevada, and sec. 9467, N. C. L., vol. 2, 1931-1941 Supplement, but it is also well established that a jury trial can be waived by a party by failure to comply with the statutory requirements relative thereto. The provision of the Nevada law which applies in the instant case is subdivision (b) of subsection 1 (sec. 8782, N. C. L. 1929), which reads as follows:\\n\\\"If such party or his attorney is not present at or has no notice of such setting, then by failing to demand a trial by jury within five days after receiving written notice of such setting.\\\"\\nA similar provision of our law was, by this court, held to be a valid and constitutional enactment. O'Banion v. Simpson, 44 Nev. 188, 191 P. 1083.\\nAppellant concedes that she did not demand a jury trial within five days after receiving written notice of such setting, but urges that because she did so within two days thereafter and because the court then had full control of the matter, no waiver could be implied from the failure of appellant to demand a jury trial within five days after receiving written notice of the setting of the case for trial, and, further, that no waiver had occurred because the court had not assented thereto.\\nUnder the statute, in actions such as this, two things must concur in order to eifect a waiver: first, the failure to demand a jury trial within the time; and, secondly, the assent of the court. Both appear here; the failure to demand within time is admitted, and the assent of the court to a waiver is evidenced by its refusal to grant a jury trial when application therefor was made on March 3, 1944. The question of whether the waiver should be set aside and a jury trial granted was one which rested within the sound discretion of the court, and under all of the circumstances of this case we cannot say that the trial court abused its discretion in its refusal to grant a jury trial.\\nThe following are cases wherein courts have refused to set aside waivers: De Remer v. Anderson, 41 Nev. 287, at page 302, 169 P. 737, 25 A. L. R. 775; Norland v. Gould et al., 200 Cal. 706, 254 P. 560; Naphtaly et al. v. Rovegno et al., 130 Cal. 639, 63 P. 66, 621; Thompson v. Anderson, Utah, 153 P. 2d 665.\\nAnd in the following, waivers have b\\u00e9en set aside and appellate courts have refused to disturb the action of the trial court: Johnson v. Western Air Express, 45 Cal. App. 2d 614, 114 P. 2d 688, at page 694; Dickey v. Kuhn, 125 Cal. App. 68, 13 P. 2d 834, at page 835; Burbank v. McIntyre, 135 Cal. App. 482, 27 P. 2d 400; Nevin v. Mallon, 136 Cal. App. 571, 29 P. 2d 303; Cowlin v. Pringle, 46 Cal. App. 2d 472, 116 P. 2d 109, at page 111; Duran v. Pickwick Stages, 140 Cal. App. 103, 35 P. 2d 148, at page 151.\\nTo the cause of action alleged by respondent, appellant set up certain acts of cruelty and adultery alleged to have been committed by respondent, also willful desertion. Evidence in support thereof was given at the trial. This for the purpose of permitting the court to take such evidence into consideration in the exercise of its discretion. The pleadings and evidence in support thereof were pursuant to the sanction given such procedure by this court in the cases of Herrick v. Herrick, 55 Nev. 59, 25 P. 2d 378, and Jeffers v. Jeffers, 55 Nev. 201, 29 P. 2d 351. Appellant, in effect, takes the position that because she established the acts complained of, the court erred in granting the divorce. In other words, the position of appellant, as it appears to us, is that in an action based upon three years separation, if the defendant in that action establishes to the satisfaction of the court that the plaintiff had been guilty of desertion, extreme cruelty or adultery, and had been most at fault, then the trial court is bound to exercise its discretion in favor of the defendant. Such is not the law, and appellant concedes that the case of George v. George, 56 Nev. 12, 41 P. 2d 1059, 97 A. L. R. 983, lays down a contrary rule. She urges, however, that the rule announced in that case is too harsh and should not be allowed to stand. Such an argument does not impress us. The holding in the case of George v. George, supra, is sound, and to hold otherwise would confine the operation of the three-year cause of action to those who are least at fault. If comparative rectitude were to be the determining factor, then the enactment of the three-year separation statute would have been an idle gesture. Cases based on the three-year separation statute often come before a trial court, where the conduct of the plaintiff has been such as not to commend itself to the court, but the court may determine that the interests of society outweigh the convenience or desire of a contesting spouse, and thus be impelled to separate the parties. Such being the legislative concept, as decided by this court (Herrick v. Herrick, supra), we have no disposition to disturb that construction. We are unable to follow appellant in her argument that the case of George v. George, supra, is out of line with the cases of Herrick v. Herrick and Jeffers v. Jeffers, supra; we think they are all in harmony in construing section 9467.06, vol. 2, 1981-1941 Supplement N. C. L. In this case the trial court had the opportunity of seeing and hearing the witnesses, and after a consideration of the whole record we cannot say that it abused its discretion in granting respondent a divorce.\\nOn the question of the refusal of the court to adopt the proposed findings and amendments to findings as tendered by appellant, appellant asserts that because she alleged desertion and adultery on the part of plaintiff, and plaintiff denied said allegations in his reply, thereby making it a direct issue, she, the appellant, was entitled to have findings made thereon. The court did make findings upon the ultimate facts which conform to the pleadings and to the evidence and which support the judgment entered. The recriminatory matter pleaded by appellant did not move the court to exercise its discretion in appellant's behalf and deny a divorce to respondent, hence the recriminatory matter pleaded and proved did not become the main facts upon which the court acted. The main consideration for the granting of the decree was evidently the court's finding that the three years separation had occurred and that in all probability the spouses could not \\\"live together in such a manner as to be for their best interests and the best interests of society.\\\" The findings adopted by the court support that theory, and hence the proposed findings of appellant were based on subordinate facts, and failure to make findings thereon is not cause for reversal. 64 C. J., par. 1076, p. 1231, and par. 1099, p. 1251.\\n\\\"It has been repeatedly affirmed that where a court renders a judgment without making findings upon all material issues of fact, the decision is against law, and constitutes ground for granting a new trial in order that the issues of fact may be determined, or for reversal upon appeal, provided it appears.that there was evidence introduced as to such issues and the evidence was sufficient to sustain a finding in favor of the party complaining. But this rule is applicable only where the omitted finding might have the effect to countervail or destroy the effect of the other findings.\\\" 24 Cal. Jur. sec. 186, p. 940. (Italics supplied.)\\n\\\"In other words, when the facts found support the judgment, an omission to find upon an issue when such a finding would not necessitate any change in the-judgment is not prejudicial error which warrants reversal or new trial.\\\" 24 Cal. Jur., p. 943, n. 17.\\n\\\"It has been repeatedly held that if findings are made upon issues which determine a cause, other issues become immaterial and a failure to find thereon does not constitute prejudicial error.\\\" 24 Cal. Jur., sec. 190, note 8.\\nAppellant,complains of the denial of her motion to vacate the trial setting of March 10, 1944, made on the ground that the twenty days allowed was not sufficient to allow her to prepare a defense, obtain the depositions of witnesses and have them transmitted to the court. This objection is answered by the fact that the appellant was able to and did make ample and thorough preparation for the trial of the case, and the depositions were in court at the time of trial and were introduced in evidence.\\nIt is further argued that the court erred in refusing to allow a continuance of one day in order to permit Bernard Allen Fried, Esq., a member of the Chicago bar, time to arrive at Las Vegas, Mr. Fried being at the time on his way to Las Vegas, to participate in the trial. We see no prejudice that could possibly have resulted to appellant in this refusal of the court to grant the one-day continuance. C. D. Breeze, Esq., a member of the bar of this state, was representing the appellant, and did so in-what appears to us to be an able manner. We further observe that Mr. Fried, after the first day, was present during the remainder of the trial and actively participated therein.\\nNo prejudicial error appearing, the judgment and order appealed from are affirmed.\"}"

nev/4559110.json

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+"{\"id\": \"4559110\", \"name\": \"FRANK LOVE and MARTIN EVENSEN, Respondents, v. MT. ODDIE UNITED MINES COMPANY (a Corporation) , Appellant\", \"name_abbreviation\": \"Love v. Mt. Oddie United Mines Co.\", \"decision_date\": \"1919-07\", \"docket_number\": \"No. 2313\", \"first_page\": 61, \"last_page\": 77, \"citations\": \"43 Nev. 61\", \"volume\": \"43\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T22:40:44.524111+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FRANK LOVE and MARTIN EVENSEN, Respondents, v. MT. ODDIE UNITED MINES COMPANY (a Corporation) , Appellant.\", \"head_matter\": \"[No. 2313]\\nFRANK LOVE and MARTIN EVENSEN, Respondents, v. MT. ODDIE UNITED MINES COMPANY (a Corporation) , Appellant.\\n[181 Pac. 133; 184 Pac. 921]\\n1.Appeal and Error \\u2014 Exceptions\\u2014Certificate.\\nA trial court\\u2019s certificate that statement and. bill of exceptions contains all material evidence, except documentary evidence, is insufficient to authorize review of evidence, which will be presumed to support findings and judgment.\\nON REHEARING\\n1. Mines and Minerals \\u2014 Question of Pact Whether Work Done Improved Claims.\\nIt is purely a question of fact whether or not development work done in a particular shaft by the locator of claims so tended to improve the entire group of claims as to prevent forfeiture thereof.\\n2. Appeal and Error \\u2014 Reversal in Equity for Erroneous Instruction.\\nIn equity cases, a judgment will not be reversed because of an' erroneous instruction.\\n3. Mines and Minerals \\u2014 Improvement Work on Single Location Developing Entire Group.\\nImprovement work within the meaning of the federal statute as to the location of mining claims, is deemed to have beeu performed, whether the claim consists of one location or several, when in fact the labor is performed or the-improvements are made for the development of the whole claim, that is. to \\u25a0 facilitate the extraction of metals, though the labor and improvements may be on ground originally part of only one of the locations, and it is not necessary that the work \\u201cmanifestly\\u201d tend to the development of all the claims in the group; \\u201cmanifest\\u201d meaning evident or obvious to the mind.\\n4. Mines and Minerals \\u2014 Development Work on Group of Claims.\\nIn the exercise of judgment as to where development work should be done on a group of mining claims and locations, a wide latitude should he allowed the owners of the property.\\n5. Mines and Minerals \\u2014 Evidence Not Showing Development Work Insufficient.\\nIn an action to quiet title 1o a group of eight mining claims, wherein verdict was rendered in favor of plaintiff relocators for four of the claims, evidence that the development work done in one place by defendant company on such claims was insufficient to prevent forfeiture held not such as to sustain the judgment.\\nG. Trial \\u2014 View of Premises by Court.\\nA view of the premises involved in mining litigation cannot be considered as evidence, but only to enable tbe court better to understand and comprehend the evidence introduced and intelligently to apply it.\\nAppeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.\\nAction to quiet title to mining claims. Judgment for plaintiffs, and defendant appeals.\\nAffirmed.\\nOn rehearing,\\njudgment reversed.\\nH. R. Cooke, for Appellant:\\nThe record affirmatively shows, as the trial judge, whose duty it was to settle and allow the bill, certifies, that it contains \\u201call of the evidence admitted at said trial (with the exception of documentary evidence, which was separately certified) material and pertinent to the issue.\\u201d \\u201cBut, to enable this court to intelligently pass upon the question whether the findings or verdict are sustained by the evidence, it is necessary that it have all of the material evidence before it.\\u201d Howard v. Winter, 3 Nev. 549; Eaton v. Oregon Ry. Co., 30 Pac. 311. \\u201cIf it were stated that it contained all the material evidence offered upon the particular facts claimed to be unsupported, the certificate of the judge to the correctness of the statement would of course be sufficient to establish that fact.\\u201d Sherwood\\u2019 v. Sissa, 5 Nev. 349; Bailey v. Papina, 20 Nev. 177. \\u201cA party cannot complain of omission in a bill of exceptions of evidence not material to questions considered on appeal.\\u201d Denver & R. G. Co. v. Andrews, 53 Pac. 518. The terms \\u201csettling,\\u201d \\u201callowing,\\u201d etc., presuppose a discretion in the trial court as to what and how much of the evidence is material and should be contained in the bill. 2 C. J. 1156.\\nNoreross, Thatcher & }Voodburn, for Respondent:\\nThe court should not inquire at all into the evidence in this proceeding, for the reason that no valid motion for a new trial was ever made, and because the bill of exceptions shows affirmatively that it does not contain all the evidence. The functions of the j.ury were advisory, and did not constitute a verdict or decision. State ex rel. Equitable G. M. Co. v. Murphy, 29 Nev. 247. The notice of intention to move for a new trial should have been directed against the decision of the court. Idem. No valid motion for a new trial having been made, this court may not consider the insufficiency of the evidence to justify the decision of the court. Rev. Laws, 5328; Street v. Lemmon M. Co., 9 Nev. 251.\\nThe bill of exceptions does not show affirmatively that it contains all the evidence. The certificate of the official reporter shows that the testimony transcribed is \\u201ca full, true and correct transcription of certain designated testimony.\\u201d This is not cured by the purported certificate of the district j udge. To entitle one to review the sufficiency of the evidence to justify the verdict or decision, the statement or record or bill of exceptions must contain all of the evidence. Howard v. Winters, 3 Nev. 541; Sherwood v. Sissa, 5 Nev. 353; Bowker v. Goodwin, 7 Nev. 137; Libby v. Dalton, 9 Nev. 23. The appellate court will presume that every fact essential to sustain the judgment, order or decision was fully proven. \\u201cSuch rulings are based upon the presumption that all intendments being in favor of the verdict, the omitted evidence would sustain it.\\u201d Libby v. Dalton, supra.\", \"word_count\": \"6132\", \"char_count\": \"33701\", \"text\": \"By the Court,\\nColeman, C. J.:\\nThis is an action to quiet title to certain mining claims. Judgment was rendered in favor of the plaintiffs, from which, and from an order denying motion.for a new trial, an appeal has been taken.\\nCounsel for respondent object to our considering the merits of the case, for the reason that the bill of exceptions does not contain all of the evidence material and essential to a correct determination thereof.\\nBefore proceeding further, it may not be out of place to say that at different stages of the proceedings in the lower court, including the preparation of the record upon this appeal, three attorneys who are not now connected with the case participated at different times in its management.\\nWe think the objection urged to a consideration of the case upon its merits is well taken. The bill of exceptions contains only about 1| typewritten pages of the direct testimony of the witness Love, who testified on behalf of plaintiffs, and is confined solely to that portion of his testimony showing his experience as a prospector and miner. It does not contain one word of testimony given by the witness mentioned on direct examination concerning the material and vital issue in the case, but it does contain about 25 pages of his cross-examination upon the vital issue. The bill of exceptions is in substantially the same condition as to the testimony of the witness Evensen.\\nFollowing the first 36 pages of the testimony contained in the so-called \\\"statement on appeal and bill of exceptions\\\" is found a statement by the court reporter as follows:\\n\\\"I hereby certify that I am the duly appointed, qualified, and acting official reporter of the district court of the Fifth judicial district of the State of Nevada, in and for the county of Nye; that I acted as official reporter upon the trial of the above-named cause, and that at such trial I took verbatim shorthand notes of all testimony and proceedings given and had; that the foregoing 36 pages constitute a partial transcription of said shorthand notes, and, so far as this particular portion of the testimony goes, is a correct statement thereof.\\\"\\nOn page 205 of the statement is found another certificate of the court reporter, which we quote:\\n\\u2022\\\"I hereby certify that I am the duly appointed, qualified and acting official reporter of the district court of the Fifth judicial district of the State of Nevada, in and for the county of Nye; and that I acted as such official reporter upon the trial of the above-named cause, and that at such trial I took verbatim shorthand notes of all testimony and proceedings given and had; that the foregoing is a full, true, and correct transcription of certain designated testimony, and is in all respects a full, true, and correct statement of said designated testimony and proceedings given and had at such trial.\\\"\\nThe certificate of the trial judge is as follows:\\n\\\"I, the undersigned, the judge who tried said.action, do hereby certify that the foregoing statement on appeal and bill of exceptions has on due notice been settled and allowed by me, and the same is correct, and that it contains a full, true and correct transcription of all of the proceedings upon the trial of said cause and of all the evidence admitted at said trial (with the exception of documentary evidence) material and pertinent to the issue of whether the work on the Verner and on the New York claim was of such a character that the same tended to develop the adjoining claims and which were in controversy between plaintiffs and defendants in this case.\\\"\\nIt will be seen from the two certificates of the official reporter that the purported transcript is but a partial transcript of the evidence, while the certificate of the trial judge shows that the statement and bill of exceptions is a correct transcript of all of the evidence admitted at the trial and pertinent to the issues, with the exception of documentary evidence. We do not feel that it is necessary that we determine whether or not the bill of exceptions shows upon its face that all of the material evidence given on direct examination of the witnesses Love and Evensen is not embodied therein. We are clearly of the opinion, however, that the certificate of the trial judge does not show that all of the evidence material to the issue presented upon this appeal is contained in the bill of exceptions, as contended by counsel for appellant, who relies upon the rule laid down in the case of Bailey v. Papina, 20 Nev. 177, 19 Pac. 33. Eliminating from consideration the certificates of the court reporter, which are not necessary at all, it appears from the certificate of the trial judge that documentary evidence material to the issues is not embodied in the statement and bill of exceptions. This being true, we cannot consider the evidence at all, and it must be presumed that the findings and judgment are supported by the evidence. Gammans v. Roussell, 14 Nev. 171; County of White Pine v. Herrick, 19 Nev. 311, 10 Pac. 215; Bailey v. Papina, 20 Nev. 177, 19 Pac. 33.\\nIt may be asked: What documentary evidence could possibly exist which could have aided the trial court in arriving at a conclusion as to the real question of fact involved in the case ? Of course, we need not determine that question, though we think it possible that there might have been reports of mining engineers, or signed statements impeaching the testimony of some, or all, of the witnesses who testified in behalf of appellant. Suffice is to say that, since it appears that there was documentary evidence material to the issue, which is not embodied in the bill of exceptions, we could only speculate as to its character and weight, which we are not called upon to do.\\nSince it is not contended that any error appears from the judgment roll, it follows that the judgment appealed from must be affirmed; and it is so ordered.\"}"

nev/4561544.json

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+"{\"id\": \"4561544\", \"name\": \"CHARLES F. DANFORTH, Appellant, v. MINNIE J. DANFORTH, Respondent\", \"name_abbreviation\": \"Danforth v. Danforth\", \"decision_date\": \"1917-07\", \"docket_number\": \"No. 2278\", \"first_page\": 435, \"last_page\": 446, \"citations\": \"40 Nev. 435\", \"volume\": \"40\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T17:29:11.802413+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHARLES F. DANFORTH, Appellant, v. MINNIE J. DANFORTH, Respondent.\", \"head_matter\": \"[No. 2278]\\nCHARLES F. DANFORTH, Appellant, v. MINNIE J. DANFORTH, Respondent.\\n[166 Pac. 127]\\n1. Dismissal and Nonsuit \\u2014 Abandonment or Cause.\\nAt common law the essential of a nonsuit was abandonment of the cause by the plaintiff.\\n2. Dismissal and Nonsuit \\u2014 What Constitutes \\u2014 Dismissal or on Merits.\\nJudgment reading, \\u201cAnd now all and singular in the premises being seen, heard and fully understood, and the material facts alleged in the libel not sufficiently proved to the satisfaction of the court, said libel is denied,\\u201d indicates, not an abandonment of the cause by plaintiff, the essential at common law of a non-suit, but that the cause was submitted and determined'on the merits.\\n8. Dismissal and Nonsuit \\u2014 What Constitutes' \\u2014 Dismissal or on Merits.\\nA judgment apparently on the merits dismissing the libel will not be considered one of nonsuit on motion of defendant, as authorized by Rev. Laws, 5237, subd. 5 ; it not appearing defendant made any such motion.\\n4. Judgment \\u2014 Res Judicata \\u2014 Nature or Law or Other State\\u2014 Pleading and Proof.\\nIf a judgment of another state, pleaded as res judicata, could under a rule of that state be merely one of nonsuit, which it could not be under the laws of this state, such rule must be pleaded and proven.\\n5. Divorce \\u2014 Action\\u2014Necessity oe Answer.\\nAn answer in divorce is not necessar^ for a .judgment on the merits against plaintiff.\\nG. Courts \\u2014 Presumption as to Jurisdiction.\\nThe presumption in favor of regularity of proceedings in a court of general jurisdiction, necessary to authorize it to act, does not apply in a proceeding not according to the common law.\\n7. Courts \\u2014 Presumption as to Jurisdiction \\u2014 Divorce Proceedings.\\nAn action for absolute divorce is a proceeding not according to common law, to which the presumption in favor of regularity of proceedings in a court of general jurisdiction, necessary to authorize it to act, does not apply.\\n8. Judgment \\u2014 Foreign Decree \\u2014 I\\u2019leading and Prooe.\\nWhile under Rev. Daws, 5070, the answer pleading as res judicata a judgment of a court of another state, denying divorce, as to which no presumption of regularity of proceedings obtains, need not plead the jurisdictional facts, yet, the reply denying the rendering of the judgment, they must be proven, except those admitted by the reply.\\nAppeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.\\nSuit by Charles F. Danforth against Minnie J. Danforth. From a judgment sustaining a plea of res adjudicata, plaintiff appeals.\\nReversed and remanded.\\nLee J. Davis and Sweeney & Morehouse, for Appellant:\\nActions for divorce were unknown to the common law, and the entire jurisdiction of courts in the United States is purely and wholly statutory in matters of divorce. The judgment of the lower court should, therefore, be reversed, as the Maine judgment is not a bar to the present action.\\nThe Maine judgment was simply one of nonsuit. The case was not decided upon the merits, and the judgment is no bar to another action. (Pendergrass v. York Mfg. Co., 76 Me. 509.) Before a dismissal or judgment of denial of plaintiff\\u2019s cause of action can be a bar, the facts must be adjudged in favor of the defendant. That is, the court must review the facts and find upon those facts that the defendant is entitled to judgment. Otherwise the ruling is one of law only and the merits are not decided or passed upon. \\\"A nonsuit is the. result of an abrupt termination of an action at law. It is the name of a judgment given against the plaintiff when he is unable to prove his case, or when he refuses or neglects to proceed with a trial of a cause after it has been at issue, without determining such issue. (16 Am. & Eng. Ency. Law, 721.) The effect of a nonsuit is to defeat the action and give costs to the defendant, but the plaintiff may commence a new action for the same cause. It is a settled and inflexible rule that a judgment of nonsuit is not a judgment on the merits, and therefore is no bar to another suit upon the same cause of action. (Black on Judgments, sec. 699.)\\nThe dismissal of a cause for want of evidence is not a judgment upon the merits, and a nonsuit for any cause is not a bar to another action upon the same cause. (City and County v. Brown, 96 Pac. 281; Lewis v. Superior Court, 105 Pac. 753; Smith v. Superior Court, 84 Pac. 54; Northern P. R. R. Co. v. Spencer, 108 Pac. 181.) It is not the recovery by the defendant that constitutes the bar or estoppel, but the decision upon the merits of the question which is in dispute between the parties. (Hoover v. King, 99 Am. St. Rep. 754; Dawley v. Brown, 79 N. Y. 390; King v. Townsend, 141 N. Y. 358.)\\nThe record of the Maine court shows there was no issue made by demurrer or answer, and there was therefore nothing for the court to try, and it could not make any judgment. Its judgment, if it be one, is void. \\\"It is the contest actually made and passed upon which gives the successful party the right to use the judgment as a bar to the same cause in a new action on a different subject-matter.\\u201d (Van Fleet on Coll. Attack, sec. 17.) \\\"From lack of contest, no question of res adjudicata arose. On the contrary, the doctrine of res adjudicata cannot arise except by virtue of some issue joined and actually contested on the trial. A judgment without an issue is void.\\u201d (Stecks. Palmer, 41 Miss. 88; Armstrong v.Barton, 42 Miss. 506; Porterfields.Butler, 47 Miss. 170.)\\nThe judgments of a sister state have only such faith and credit as they have by the law of the state where the judgment is rendered. Therefore, our courts cannot take judicial notice of the judgment in Maine, as a valid or enforceable one, or that the same was duly made and entered, imparting full faith and credit, unless they have before them, by th'e pleading of the judgment or by the evidence, what the laws of Maine are. The due authentication of the record goes only to its admissibility in evidence, but does not prove its effect. The law of Maine was not pleaded or proved, and we are therefore left to construe the judgment under the laws of Nevada, the rule being that state courts will not take judicial notice of the laws of a sister state, it being necessary that they be proved like any other fact. (Estate of Harrington, 73 Pac. 1000; Estate of Richards, 65 Pac. 1034; In Re Campbell\\u2019s Estate, 108 Pac. 669; Scott v. Ford, 97 Pac. 99; Palmer v. Atchison, 35 Pac. 630; Cavellero v. Texas, 42 Pac. 918; Daggett v. S. P. Co., 103 Pac. 204; De Vail v. DeVall, 109 Pac. 755; Thomas v. Robinson, 3 Wend. 267; Sheldon v. Hopkins, 7 Wend. 435; Pelton v. Plainer, 13 Ohio, 209; Crafts v. Clark, 31 Iowa, 77; Wright v. Andrews, 130 Mass. 149; Coates v. Mackey, 56 Md. 416.)\\nRoy W. Stoddard, for Respondent:\\nThere is only one question before this court in the case at bar, which is: Does the exemplified copy of the record of the Maine court constitute a bar against the subsequent action brought by plaintiff? In order to render a matter res adjudicata there must be a concurrence of four conditions, namely (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of the parties to the action; (4) identity of the quality in the person for or against whom the claim is made. (Black on Judgments, vol. 2, sec. 610; Lyon v. Perin Mfg. Co., 125 U. S. 698,. 31 L. Ed. 839.) That these exist in the case at bar is apparent upon the face of the exemplified copy of the record of the Maine court. This being the case, the estoppel is not confined to the judgment, but extends to all steps involved as necessary steps for the groundwork upon which it may have been founded. \\\"Where a conclusion is indisputable, and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion.\\u201d (Black on Judgments, vol. 2, secs. 613, 614.)\\nWhen a decree of divorce is denied on the merits, the matter is res adjudicata between the parties in a subsequent proceeding for divorce upon the same grounds. (9 R. C. L. 463, 464; Prall v. Prall, 26 L. R. A. n.s. 577; Ford v. Ford, 108 Pac. 366; People v. Case, 241 111. 279; Patrick v. Patrick, 139 Wis. 463; Stay v. Stay, 102 Pac. 420; Trowbridge v. Spinning, 54 L. R. A. 204.)\\nA judgmentrendered by acourt of competent jurisdiction of the parties and the subject-matter in one state is conclusive on the merits in the courts of every other state. A party seeking to escape the effect of the judgment must assume the burden of proving and showing that jurisdiction did not in fact exist. (15 R. C. L. 887; 23 Cyc. 1573.)\\nThe term \\\"nonsuit\\u201d is applicable only to actions at law, as has been decided by this court in the case of Laird v. Morris, 23 Nev. 34, in which it is said: \\\"A nonsuit is a result of an abrupt termination of an action at law. \\u201d .\\nIt is true that the record of the Maine court, to be admitted in evidence, must be authenticated as provided by the full faith and credit clause of the United States, but when so authenticated and introduced in evidence it becomes conclusive evidence, and therefore conclusive in its effect and a complete bar to plaintiff\\u2019s action in this state.\\nWhere it is apparent on the face of the record of the former action that the question in controversy was litigated therein, as in the case at bar, the mere production of the record is sufficient. (Black on Judgments, vol. 2, secs. 505, 625; 23 Cyc. 1552, 1553; 15 R. C. L. 949, 962.)\", \"word_count\": \"4189\", \"char_count\": \"23310\", \"text\": \"By the Court,\\nColeman, J.:\\nAppellant brought suit for divorce. An answer was filed, pleading a judgment of a court of the State of Maine as res adjudicata, to which a reply was filed, admitting that the Maine court had jurisdiction of divorce actions, but denying that a judgment on the merits had been rendered. Upon the trial, and after the evidence in support of the allegations of the complaint had been submitted, a certified copy of the judgment of the court of the State of Maine was offered and received in evidence, over the objection of appellant, in support of the plea of res adjudicata presented in the answer mentioned. After all of the evidence had been received, a judgment was rendered by the court, sustaining the plea of res adjudicata. It is from that judgment that an appeal is taken.\\n1. It is contended that the Maine judgment was nothing more than a j udgment of nonsuit, and that the trial court erred in admitting it in evidence. In support of this contention, counsel quotes from the case of Pendergrass v. York Mfg. Co., 76 Me. 509, and from numerous other authorities, among them the case of Laird v. Morris, 23 Nev. 34, 42 Pac. 11. On another phase of the case, counsel for appellant contend that, in the absence of pleading and proof as to what the law is in a sister state, we must presume that the law is the same as the law of this state. The authorities are practically unanimous in holding this to be the rule relative to the common law, but there is a wide difference of opinion on this question as to the statute law. (16 Cyc. 1084, 1085; 10 R. C. L. 895.) This court has never been called upon to lay down a rule as to what the presumption is as to the law of a sister state, and we do not deem it necessary to do so in this instance, for we are of the opinion that, no matter whether the common law or our statute controls, we are compelled to hold that the judgment of the Maine court was not one of nonsuit. At common law nonsuit was permissible only when the plaintiff did not appear to prosecute the action. Blackstone, who we believe is the most reliable authority as to the common law, says:\\n\\\"When they are all unanimously agreed, the jury return back to the bar; and, before they deliver their verdict, the plaintiff is bound to appear in court, by himself, attorney, or counsel, in order to answer the amercement to which by the old law he is liable, as has been formerly mentioned, in case he fails in his suit, as a punishment for his false claim. To be amerced, or a mercie, is to be at the king's mercy with regard to the fine to be imposed. The amercement is disused, but the form still continues; and if the plaintiff does not appear, no verdict can be given, but the plaintiff is said to be nonsuit. Therefore it is usual for the plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily non-suited, or withdraw himself; and if neither he, nor any body for him appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reason for this practice is that a nonsuit is more eligible for the plaintiff than a verdict against him; for after a nonsuit, which is only a default, he may commence the same suit again for the same cause of action; but after a verdict had, and judgment consequent thereupon, he is forever barred from attacking the defendant upon the same ground of complaint. But in case the plaintiff appears, the jury by their foreman deliver in their verdict.\\\" (Blackstone's Commentaries, Ed. 1768, p. 376.)\\nFrom this language we gather that at the common law, when a plaintiff discovered some error or defect in the proceedings, or was unable to prove an essential fact, for want of necessary witnesses or documentary evidence, and thereupon being called, and failing to appear, his default was recorded, upon which the defendant recovered his costs. But this arising from some supposed neglect or oversight, the plaintiff was not barred from commencing a new action. In the light of this interpretation, it will be seen that at common law the one essential of a nonsuit was the abandonment of the case by the plaintiff. Strictly speaking, it seems that at common law there was no such thing as a \\\"judgment\\\" of nonsuit. In Poyser v. Minors, 7 Q. B., Div. 329, Hush, L. J., says:\\n\\\"A nonsuit at common law was nothing more than a declaration by the court that the plaintiff had made default in appearing at the trial to prosecute his suit.\\\"\\nIn the same case, Bramwell, L. J., says:\\n\\\"There really in strictness never was a 'judgment' of nonsuit. No plaintiff could be nonsuited against his will. He failed to- appear at the appointed time, generally at nisi prius \\u2014 (I believe there were other stages of a cause in which there might be nonsuits) \\u2014 and his nonappearance was recorded, returned to the court in banc, and then judgment was given against him that the defendant go without a day, etc.\\\"\\n2. From a reading of the judgment of the Maine court, it is apparent that there the plaintiff did not abandon his action. The judgment reads, in part, as follows:\\n\\\"And now all and singular in the premises being seen, heard and fully understood, and the material facts alleged in the libel suit not sufficiently proved to the satisfaction of the court, said libel is denied.\\\"\\n3. This language clearly indicates to our minds, in interpreting it according to the common-law rules, that the case was submitted and determined on the merits. When we interpret this judgment under our statute, we reach the same conclusion. Section 5237, Revised Laws of 1912, lays down the conditions under which a judgment of nonsuit may be entered in this state:\\n\\\"An action may be dismissed, or a judgment of non-suit entered in the following cases:\\n\\\"1. By the plaintiff himself at any time before trial, upon the payment of costs, if a counterclaim has not been made. If a provisional remedy has been allowed, the undertaking shall thereupon be delivered by the clerk to the defendant, who may have his action thereon.\\n\\\"2. By either party upon the written consent of the other.\\n\\\"3. By the court when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal.\\n\\\"4. By the court when upon the trial and before the final submission of the case the plaintiff abandons it.\\n\\\"5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the court or jury. The dismissal mentioned in the first two subdivisions shall be made by an entry in the clerk's register. Judgment may thereupon be entered accordingly. In every other case the judgment shall be rendered on the merits.\\\"\\nIt is not contended that any of these conditions existed at the time of the entry of the Maine judgment, though counsel for appellant quote the fifth subdivision, and cite the case of Laird v. Morris, supra, in support of their general contention. From a reading of this subdivision, it will be seen that \\\"upon motion of the defendant\\\" the court may enter a judgment of nonsuit. It does not appear that the defendant made any such motion. On the other hand we may infer that defendant sought a judgment upon the merits. This court has pretty clearly laid down the condition upon which a judgment of nonsuit can be entered in this state, in the case of Burns v. Rodefer, 15 Nev. 63, where it said:\\n\\\"The plaintiffs might have asked for a nonsuit, after their evidence was struck out (Civ. Prac. Act, sec. 151; Hancock Ditch Co. v. Bradford, 13 Cal. 637; Ord v. Chester, 18 Cal. 77) ; and the court might have granted one, also, upon motion of the defendants. But it does not appear from the judgment roll that either party asked for a nonsuit, or that either objected to a submission of the case to the jury. A nonsuit cannot be granted except upon the grounds stated in the statute and as therein provided. It could not have been granted under the fifth subdivision of section 151, except upon motion of the defendants. It could not have been ordered under the fourth, because plaintiffs did not abandon their case, or under the third, because they appeared, or under the second, because defendants did not give their written consent.\\\"\\n4. Hence, as we have said, we find that whether we presume that the common law or a statute similar to our own existed in Maine, we must hold that the judgment was one upon the merits. If a different rule exists in Maine, it can be shown only by appropriate pleadings and proof.\\n5. It is also contended that the libellee filed no answer in the Maine action to the petition of the libellant, and that consequently there was no issue for that court to try. While it is true that it does not affirmatively appear that an answer was filed to the petition, it is also true that it does not affirmatively appear that an answer was not filed, while the judgment recites that libellee appeared by her attorney, W. H. Gulliver. But whether or not an issue was raised by an appropriate pleading is a matter of no consequence in an action for divorce. .As said in Ribet v. Ribet, 29 Ala. 348, actions of this nature are of a triangular sort, and such a cause is never concluded as against the court, and it may and usually does satisfy its conscience regardless of the pleadings. (Bishop, Mar. & Div., sec. 314; 7 Ency. PI. & Pr. 88.)\\n6. But it is contended that the trial court erred in admitting in evidence the transcript of the Maine judgment, for the reason that the answer in the case at bar does not allege the existence of certain facts essential to give the court jurisdiction to hear and determine the cause. On the other hand, respondent asserts that, since the court by which the Maine judgment was rendered was one of general jurisdiction, it will be presumed that every fact essential to give the court jurisdiction was shown. While it is a general rule that everything will be presumed in favor of a j udgment rendered by a court of general jurisdiction, there are exceptions to the rule. The presumption which generally prevails in favor of the regularity of the proceedings in a court of general jurisdiction, necessary to authorize it to act, does not apply in proceedings not . according to the course of common law. This rule is so well established, and so generally recognized, that it seems useless to cite authorities to sustain it. However, a few of the authorities so holding are: Galpin v. Page, 18 Wall. 364, 371, 21 L. Ed. 959; Sabariego v. Maverick, 124 U. S. 261, 292, 8 Sup. Ct. 461, 31 L. Ed. 430; Striker v. Kelly, 7 Hill (N. Y.) 9; Kelley v. Kelley, 161 Mass. 111, 36 N. E. 837, 25 L. R. A. 806, 42 Am. St. Rep. 389; Northcut v. Lemery, 8 Or. 316; Furguson v. Jones, 17 Or. 204, 20 Pac. 842, 3 L. R. A. 620, 11 Am. St. Rep. 808; Knapp v. Wallace, 50 Or. 348, 92 Pac. 1054, 126 Am. St. Rep. 747; Pulaski Co. v. Stuart, 28 Grat. (Va.) 872; Richardson v. Seevers, 84 Va. 259, 4 S. E. 712; 15 R. C. L., sec. 360, p. 883; 23 Cyc. 1578, text to note 52.\\n7. It is also contended by counsel for appellant that an action for divorce is not a proceeding according to the course of the common law, and that hence the Maine judgment should not have been admitted in evidence, since all the facts necessary to give the. Maine court jurisdiction were not pleaded nor proven upon the trial of the case at bar in the lower court. As to the correctness of the contention that an action for an absolute divorce is a proceeding not according to the course of the common law, we think there can be no serious doubt. In 14 Cyc. at page 581, we find the rule -laid down as follows:\\n\\\"At the time of the establishment of the United States as an independent nation and the adoption of the common law of England by the- several states, matrimonial causes in England were within the exclusive jurisdiction of the ecclesiastical courts. These courts derived their commissions from the church, and in the determination of matrimonial causes the canonical law was applied almost entirely. Ecclesiastical courts were not established in any of the United States as a part of its judicial system, and consequently up to the time of the creation of courts with a jurisdiction in divorce actions, ecclesiastical, law relating to divorce remained unadministered for want of a tribunal.\\\"\\nSee, also, 9 R. C. L. pp. 261, 262; Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654; Northcut v. Lemery, supra; Kelley v. Kelley, supra; Steele v. Steele, 35 Conn. 48; McGee v. McGee, 10 Ga. 477; Olin v. Hungerford, 10 Ohio, 268; Cast v. Cast, 1 Utah, 112.\\n8. But under section 5070, Revised Laws of Nevada, 1912, we do not think it necessary, in an action upon a judgment of a court of special or limited jurisdiction of a sister state, to plead the jurisdictional facts, though they have to be proven in case the reply denies the allegation of the rendition of the judgment, unless the reply specifically admit certain jurisdictional facts. (Etz v. Wheeler, 23 Mo. App. 449; Bruckman v. Taussig, 7 Colo. 561, 5 Pac. 152; Abb. Trial Brief, 2d ed. sec. 339; Graggoo v. Graham, 9 Ind. 212; Archer v. Romaine, .14 Wis. 375.) See, also, Phelps v. Duffy, 11 Nev. 80, 85.\\nSince the reply which was filed by appellant to respondent's answer denied the rendering of the judgment pleaded, it was incumbent upon the defendant to prove all of the j urisdictional facts except the allegation in the answer that the Supreme Judicial Court of Androscoggin County, Me., in which the judgment pleaded was rendered, had jurisdiction in actions for divorce, as that allegation in the answer is admitted in the reply.\\nFor the error committed in admitting in evidence a certified copy of the judgment of the Maine court, when evidence of certain jurisdictional facts had not been introduced, the judgment is reversed, and the case is remanded for a new trial.\"}"

nev/4567347.json

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+"{\"id\": \"4567347\", \"name\": \"HARRY H. HUNTER, JR., Respondent, v. THOMAS SUTTON, Appellant\", \"name_abbreviation\": \"Hunter v. Sutton\", \"decision_date\": \"1922-01\", \"docket_number\": \"No. 2463\", \"first_page\": 427, \"last_page\": 430, \"citations\": \"45 Nev. 427\", \"volume\": \"45\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T23:40:08.076843+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HARRY H. HUNTER, JR., RESPONDENT, v. THOMAS SUTTON, Appellant.\", \"head_matter\": \"[No. 2463]\\nHARRY H. HUNTER, JR., RESPONDENT, v. THOMAS SUTTON, Appellant.\\n[195 Pac. 342]\\n1. New Tbiai. \\u2014 Notice oe Decision Starting Running of Ten-Day Period for Moving, Need Not Be in Writing.\\nThe \\u201cnotice\\u201d of decision, as contemplated and required by Rev. Laws, 5323, providing that a person intending to move for a new trial should serve notice of his intention to do so within ten days after receiving notice of. the decision, need not be in writing.\\nAppeal from Sixth Judicial District Court, Pershing County; Mark R. Aver ill, Judge.\\nAction by Harry H. Hunter, Jr., against Thomas Sutton. From an order sustaining plaintiff\\u2019s objection to the hearing of defendant\\u2019s motion for new trial, defendant appeals.\\nAffirmed. Petition for rehearing denied.\\n(Ducker, J., dissenting.)\\nBooth B. Goodman, for Appellant:\\nNotice 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. The notice contemplated by statute is a written notice, and no knowledge is sufficient in lieu thereof. The word \\u201cwritten\\u201d does not appear in the statute, but the rule is well settled that, when a notice in any legal proceeding is required and authorized by statute, a formal written notice is understood. 39 Cyc. 1118; Pearson v. Lovejoy, 35 How. Pr. 193; Gilbert v. Turnpike Co., 3 Johns. 107; Miner v. Clark, 15 Wend. 425; Mason v. Kellogg, 38 Mich. 132; Biagi v. Howes, 6 Pac. 100; Carpenter v. Thurston, 30 Cal. 125; Roussin v. Stewart, 33 Cal. 210; Sawyer v. San Francisco, 50 Cal. 375; Fry v. Bennett, 16 How. Pr. 402; Everett v. Jones, 91 Pac. 360; Gray v. Winder, 20 Pac. 48; Gardner v. State, 67 Pac. 4; State v. Murphy, 19 Nev. 89. \\u201cDelivery to the judgment debtor of a satisfaction of the judgment upon payment thereof is not such notice.\\u201d Maurin v. Carnes, 83 N. W. 417.\\nR. M. Hardy and Cooke, French & Stoddard, for Respondent:\\nAppellant received actual notice in writing of the decision of the district court, and failed to serve his notice of intention to move for a new trial within ten days thereafter. Objection was made to the hearing of the motion for a new trial on that ground. The objection was sound, and was properly sustained.\\nEven oral notice would have been sufficient. The statute requires notice only; it need not be in writing. Formerly the statute required written notice. Cutting\\u2019s Comp. Laws, sec. 3292. The later enactment provides for such service \\u201cwithin ten days after notice of the decision of the court or referee.\\u201d Rev. Laws, 5323. It is obvious that the legislature intended to modify the strict rule of the former practice and require the losing party to move promptly after receiving actual notice; in other words, to recognize the substance rather than the foirm.\\nThe order sustaining the objection to the hearing of the motion for a new trial should be affirmed. White v. Superior Court, 14 Pac. 87; Davis v. Hurgren, 57 Pac. 685; Clark v. Strouse, 11 Nev. 75.\", \"word_count\": \"1003\", \"char_count\": \"5700\", \"text\": \"By the Court,\\nSanders, C. J.:\\nThis is an appeal from an order of the court below sustaining respondent's objection to the hearing of appellant's motion for a new trial, which said objection is based solely upon the ground that the notice of intention to move for a new trial was not filed within the time prescribed by section 5323 of the Revised Laws.\\nAppellant contends that the notice of intention to move for a new trial was filed within the time as prescribed by the statute for the reason that no notice of the decision of the court was served upon appellant before the filing of his notice of intention to move for a new trial. It is the contention of counsel for appellant that the \\\"notice\\\" of decision, as contemplated and required by section 5323 of the Revised Laws, is \\\"written notice.\\\" In other words, it is their contention that, \\u2022notwithstanding appellant had knowledge of the court's decision, he had the right to wait for a notice in writing of the decision from the adverse party before giving notice to his intention to move for a new trial.\\nIn an opinion filed contemporaneously herewith, in the case of Studebaker Bros. Co. of Utah, v. A. B. Witcher, A. Jurich, George A. McDonald, and Bartley Smithson (No. 2399) 45 Nev. 376, the majority of this court is not in accord with appellant's position. For the reasons stated in the concurring opinion therein, we affirm the order of the lower court sustaining respondent's objection to the appellant's motion for a new trial.\\nIt is so ordered.\"}"

nev/4573363.json

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+"{\"id\": \"4573363\", \"name\": \"EX PARTE NOYD\", \"name_abbreviation\": \"Ex parte Noyd\", \"decision_date\": \"1924-08-05\", \"docket_number\": \"No. 2648\", \"first_page\": 120, \"last_page\": 133, \"citations\": \"48 Nev. 120\", \"volume\": \"48\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-11T01:13:27.112960+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EX PARTE NOYD\", \"head_matter\": \"EX PARTE NOYD\\nNo. 2648\\nAugust 5, 1924.\\n227 Pac. 1020.\\nJohn F. Kunz, for Petitioner:\\nLeRoy F. Pike, City Attorney, and E. F. Lunsford, of Counsel, for Respondent:\", \"word_count\": \"3802\", \"char_count\": \"21832\", \"text\": \"OPINION\\nBy the Court,\\nDucker, C. J.:\\nPetitioner was arrested, tried, and convicted in the municipal court of the city of Reno upon a complaint charging him with peddling from a railroad box car without procuring a license as provided in section 2 of an ordinance of said city. He was sentenced by the court to pay a fine of $300, and in default of the payment of the fine, or any part thereof, to be confined in the city jail of Reno for a period of not to exceed one day for each one dollar of said fine remaining unpaid but not to exceed six months' imprisonment. Petitioner was remanded to the custody of the chief of police of said city, and upon the issuance of the writ of habeas corpus from this court was admitted to bail pursuant to its order.\\nSection 1 of said ordinance reads:\\n\\\"Itinerant Haiokers and Peddlers \\u2014 For the purpose of this ordinance itinerant hawkers and peddlers are defined to be all persons traveling from house to house carrying meats, fruits, vegetables or other farm products, dry goods, furs, groceries, cigars, tobacco and other merchandise with them and selling and delivering the same at retail from a pack or truck, automobile, wagon, or other vehicle, and all persons selling and delivering any of said goods at retail from motor trucks, wagons or other vehicles or freight cars or at any place not a fixed place of business in the city of Reno. A fixed place of business is defined to be a place of business located in a permanent structure in the city of Reno where merchandise is sold direct to the consumer.\\\"\\nSection 2 reads, in part:\\n\\\"Any itinerant hawker or peddler or any person, firm, association or corporation, engaged in the business of hawking or peddling in the city of Reno, except as hereinafter provided, shall pay for and obtain a quarterly license to carry on such business as follows, to wit.\\\" (Next following in said section are the several license fees based upon quarterly gross receipts.)\\nPetitioner contends that the ordinance is unconstitutional for several reasons. His first contention is that section 1 seeks to enlarge the generally accepted meaning of the word or words \\\"hawkers or peddlers\\\" and by so doing exceeded the power to regulate the same delegated by the legislature to the city of Reno under its charter. We see no merit in the contention that power has been exceeded in this respect. The intention to exact a quarterly license from one selling and delivering any of the goods described in section 1 at retail from a freight car is expressed. The power to so legislate by ordinance is amply delegated by the fourth subdivision of section 10c, art. 12, of the charter act of the city of Reno, as amended by the legislature of 1923, page 122, 1923 Stats. Power is given the city council, among other things, in said subdivision, to fix, impose, and collect a license tax on and to regulate all character of lawful trades, callings, industries, occupations, professions, and business conducted in whole or in part within the city, including hawkers and peddlers, unless the latter are dealing in their own agricultural products of this, state: and in the seventh subdivision of said section 10c:\\n\\\"To provide for the issuance of all licenses in this charter authorized, and to fix the amount thereof and the time for, manner of, and terms upon which the same shall be issued.\\\"\\nThe business of selling and delivering goods from a freight car is a lawful business, and the authority to require a license for conducting the same is therefore within the grant of power in said subdivision. The intention to exercise the power granted might have been expressed in some other way than by including it in a definition of hawkers and peddlers, but the method employed is of no importance. So it is unnecessary to determine whether the ordinance goes beyond the generally accepted meaning of those terms.\\nOur view is illustrated by the decision in Ex Parte Siebenhauer, 14 Nev. 365, 373. In that case it appears that the board of aldermen of Virginia City was authorized by statute \\\"to fix and collect a license tax on and regulate\\\" almost every kind of business or occupation that might be carried on within the city limits, including \\\"merchants\\\" and \\\"solicitors.\\\" The ordinance adopted under that authority designated as a solicitor \\\"every person or firm engaged in the business of soliciting the purchase of goods, wares or merchandise within' the limits of the city of Virginia, to be sent to said city of Virginia from places beyond the limits of said city, or upon orders to be filled elsewhere than in said city, and every person, bargaining or selling any goods, wares or merchandise by sample or otherwise, in said city, where the same are to be sent to said city from beyond its limits.\\\"\\nThe majority of the court said:\\n\\\"It is unnecessary, in my opinion, for the purpose of deciding this case, to ascertain the meaning of the word 'solicitors,' as employed in the amended charter of Virginia City. It is admitted that the petitioner is a traveling merchant \\u2014 that is, he keeps a stock of goods in San Francisco and comes to Virginia City for the purpose of soliciting orders. He carries on the business of selling goods in Virginia City, and he is none the less a merchant doing business there because he keeps his stock of goods in another state and travels about from place to place. The charter empowers the city of Virginia to impose a license tax upon merchants, and the class of persons described in the ordinance are merchants. It is of no con sequence that the ordinance calls them 'solicitors.' If the city has authority to tax them as merchants, it may call them by any name it pleases.\\\"\\nUnder the view we take the cases cited and discussed by counsel for petitioner determining the extent of the meaning of the words \\\"hawkers and peddlers\\\" are not in point.\\nThe next contention is that the amount imposed for obtaining a license is unreasonable, prohibitive, and confiscatory. As previously stated, the several amounts required by the ordinance for a license to carry on business are fixed by section 2 of the ordinance, the minimum as follows:\\n\\\"Those whose quarterly gross receipts are less than three thousand ($3,000) dollars, the sum of three hundred ($300) dollars per quarter.\\\"\\nThe maximum amount required is as follows:\\n\\\"Those whose quarterly gross receipts are over fifty thousand ($50,000) dollars, the sum of $5,000 per quarter.\\\"\\nThe charter of the city of Reno, as we have seen, empowers it to fix, impose, and collect a license tax On and regulate all characters of lawful business. It provides also that in fixing licenses the city council must as nearly as practicable make the same uniform in proportion to the approximate amount of business done by the licensee, and further provides that in fixing licenses the city council must have due regard for and be governed as far as possible by the \\\"approximate amount or volume of business done by each person, firm, company or corporation thus licensed.\\\" These provisions make it clear that it was intended to give the city authorities power to license all kinds of business and occupations that might be carried on within the corporate limits of the city for the purpose of revenue. The intent to delegate this power may be inferred from the provisions of the charter requiring the license tax to be imposed with reference to the volume of business transacted. If it was intended to restrict the council's authority to granting licenses for carrying on the business and for police regulation, the designation of the volume of business as a basis for a license tax would have been unnecessary. This provision and the use of the term \\\"license tax\\\" leaves no doubt of the nature of the power delegated. They clearly pertain to the taxing power of the state, and authorize an occupation tax. The term \\\"license tax\\\" has been held to refer to this power. City of Lamar v. Adams, 90 Mo. App. 35; San Jose v. S. J. & S. C. R. R. Co., 53 Cal. 475. In the latter case the court said:\\n\\\"The charter of the city of San Jose, in defining the powers of the common council, authorizes it, amongst other things, 'to license and regulate all and every kind of business authorized by law, and transacted and carried on in said city, and to fix the rates of license tax upon said business.' In construing a similar power conferred upon the board of supervisors of the city and county of San Francisco, we said in Ex Parte Frank, 52 Cal. 606, 'when the power conferred upon the corporation, as in this case, is to \\\"license and regulate\\\" callings and occupations, a question has sometimes arisen in the courts, whether, under such a grant of power, the corporation could exact license fees for purposes of revenue, or should be limited to a sum reasonably sufficient to defray the expense of granting the license. (Dillon on Mun. Corp. 291.) But the rule as stated by Judge Dillon is, that in construing the words of the grant the whole charter and general legislation of the state respecting the subject-matter must be consulted in order to determine whether by the terms \\\"license and regulate\\\" it was intended to authorize licenses for purposes of revenue.' Tested by this rule, we held that the power to 'license and regulate' occupations in San Francisco included the power to raise revenue for municipal purposes by means of license fees; and the same rule of construction is applicable to the power conferred on the common council of San Jose. Indeed, the charter itself designates it as a 'license tax upon such business,' indicating clearly that it is a tax on the occupation, and not merely a license to carry on the business.\\\"\\nIn that case it was said that the power of the legislature of the state, under the constitution, to tax occupations and to authorize municipal corporations to tax them was settled.\\nThe power of the legislature of our state, under the constitution, to tax a business or occupation is likewise settled (Ex Parte Robinson, 12 Nev. 263, 28 Am. Rep. 794; Ex Parte Dixon, 43 Nev. 196, 183 Pac. 642), and the authority to delegate it to municipal corporations cannot be questioned.\\nAs the power delegated to the city of Reno includes the power to exact license fees as a source of revenue, it cannot be tested by the rules applicable to a municipal corporation clothed with power to license a business merely for the conduct thereof and police regulation. The authorities cited by counsel for petitioner have reference to the cities where the legislative grant was so restricted, or at least of doubtful intendment. On this subject Judge Cooley says:\\n\\\"It is perhaps impossible to lay down any rule for the construction of such grants that shall be general, and at the same time safe; but, as all delegated powers to tax are to be closely scanned and strictly construed, it would seem that when a power to license is given the intendment must be that regulation is the object, unless there is something in the language of the grant, or in the circumstances under which it is made, indicating with sufficient certainty that the raising of revenue by means thereof was contemplated.\\\" Cooley Tax'n. (3d ed.) c. 19, p. 1139.\\nAs we have seen, the legislative intent to delegate the power to tax clearly appears, and the authority to fix the amount thereof, and the time for, manner of, and term upon which a license shall be issued, given to the city in the charter act. The only limitations as to the amount are that the same must be uniform in proportion to the proximate amount of business done by the licensee; and in fixing the same, due regard must be paid to the approximate amount or volume of business done by the licensee. With these limitations the amount of the license tax is left to the legislative discretion of the municipal authorities. The ordinance is within the extent of the grant as thus limited, which is as far as our inquiry can extend in a proceeding of this kind. City of St. Paul v. Colter, 12 Minn. 49 (Gil. 16), 90 Am. Dec. 278.\\n\\\"The power to tax all of the property and business within this state,\\\" said the court in Ex Parte Robinson, supra, \\\"is an essential attribute of its sovereignty, and there is no restraint upon its exercise when within constitutional limits, except the responsibility of the members of the legislature to their constituents.\\\"\\nWhile the license tax imposed seems to be large, we cannot say judicially, as a matter of law, that it violates any constitutional principle in this respect.\\nPetitioner's third ground of obj ection is directed to that portion of section 2 of the ordinance which provides:\\n\\\"That if any person, firm, association or corporation has more than one person engaged in the business of peddling, or uses more than one motor, motor truck, wagon or other vehicle in said business of peddling, the foregoing license shall be paid for each of said persons, motor trucks, wagons or vehicles used in said business, in accordance with the amount of business each person, motor truck or vehicle does, but not less than the minimum schedule.\\\"\\nThe objection is that this provision is discriminatory and imposes a double tax. Petitioner is not in a position to urge this objection to the constitutionality of the ordinance. He was charged with and convicted of peddling from a railroad box car without a license. It does not appear that he had more than one person engaged in the business or used more than one vehicle, or any vehicle for the purpose. One who is not injured by an ordinance cannot attack its constitutionality. Ex Parte Sloan, 47 Nev. 109, 217 Pac. 233. He is in the same position as to his fourth objection, which is grounded upon that portion of section 2 of the ordinance which provides:\\n\\\"That the foregoing license schedule shall not be charged any person engaged in the vending or peddling of what are commonly known as ice cream cones, hot dogs, candies, tamales, nuts, Eskimo pies or like articles of food usually sold at carnivals or fairs, but that the following schedule shall be paid for the same.\\\"\\nThen follows the requirement of a license for such vending or peddling of $15 per quarter, and $30 per quarter, graduated upon quarterly gross receipts.\\nIt is urged that in this respect section 2 is discriminatory, and that the license fees designated are not uniform upon the class upon which they are sought to be imposed. It appears that petitioner has no license, and it does not appear that he was vending or peddling any of the merchandise excluded from the regular schedule of license fees. He is therefore uninjured in this respect.\\nThe next obj ection is that the ordinance is discriminatory in that it does not include those who walk from place to place and sell merchandise from a bag. This objection is untenable for the reason that that portion of section 1 of the ordinance which reads, \\\"All persons traveling from house to house carrying meats, fruit, etc., with them and selling and delivering the same at retail from a pack, \\\" means that class of peddlers. That it means peddlers who travel on foot is obvious from the use of the phrase \\\"selling and delivering the same from a pack.\\\"\\nIt is next contended that the penalty inflicted for the violation of the ordinance is exorbitant and unreasonable. The penalty that might be imposed for a violation of the ordinance is provided in the charter authorizing it. By the provisions of the charter fines, forfeitures, and penalties may be prescribed for the breach or violation of any ordinance, or the provisions of the charter, but no penalty shall exceed the amount of $500 or six months' imprisonment or both such fine and imprisonment. Subdivision 5 of section lOi, Stats. 1923, p. 130.\\nIt is further provided that the payment of fines may be enforced by imprisonment in the city jail at the rate of one day for every one dollar of said fine remaining unpaid. Section 3, art. 14, Stats. 1905, p. 132. Pursuant to such authority, section 9 of the ordinance provides that any one violating any of the provisions of the ordinance shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than $300 and not exceeding the sum of $500, and in default of the payment of the fine, the court may order the defendant imprisoned in the city jail of the city of Reno one day for each dollar of said fine remaining unpaid. It is thus seen that the penalty imposed by the ordinance is within the limitations of express authority granted by the legislature. The reasonableness of the penalty is therefore not open to inquiry. An ordinance cannot be declared unreasonable which is expressly authorized by the legislature. Coal Float v. City of Jeffersonville, 112 Ind. 15-19, 13 N. E. 115. If it is expressly authorized by the legislature within constitutional limits and is unreasonable and oppressive, the remedy lies with the legislature or city council.\\nIn the case of Haynes v. Cape May, 50 N. J. Law, 55-57, 13 Atl. 231, 232, the court said:\\n\\\"There are circumstances under which the court will inquire into the reasonableness of ordinances passed by a municipal body under legislative powers granted to it. Those circumstances exist when the powers granted by the legislature are expressed in terms general and indefinite. But where the legislature has defined the delegated powers, and prescribed with precision the penalties that may be imposed, an ordinance within the powers granted, prescribing a penalty within the designated limit, cannot be set aside as unreasonable.\\\"\\nIn City of Tarkio v. Cook, 120 Mo. 1, 25 S. W. 202, 41 Am. St. Rep. 678, cited by counsel for respondent, the principle is stated and applied. After quoting the language of the New Jersey case hereinbefore set out, the court said:\\n\\\"An interference with the action of the city of Tarkio, in prescribing the penalty for the violation of this ordinance, would set at naught the authority of the legislature to delegate the power, and to prescribe the limit to the penalties that might be imposed. If the authority had been granted in general terms to impose a fine without fixing its limit, the courts might inquire into the reasonableness of that fixed by the ordinance; but no such inquiry should be made where, as in this case, the maximum of the fine imposed is within the prescribed limits of the charter.\\\"\\nSee 1 Dillon, Mun. Corp. sec. 328, and 2 McQuillin, Mun. Corp. sec. 720, for statement of this general principle.\\nPetitioner challenges the sufficiency of the complaint upon several grounds, namely: That it1 is not alleged therein that the peddling was from a railroad box car at retail; that it does not allege an offense against any ordinance of said .city of Reno for the reason that no ordinance exists in said city of Reno making it an offense for a hawker or peddler to sell merchandise from a freight car. The last contention is disposed of adversely to petitioner by our ruling that the city council had power under the charter to and did adopt a valid ordinance requiring a license from one selling and delivering merchandise at retail from a freight car in the city of Reno, fixing a valid penalty for the violation of the provisions of the ordinance. That one may \\\"peddle,\\\" in the usual acceptation of the word, by selling and delivering goods at retail from a freight car, is obvious.\\nAs to the objection that the complaint does not state any offense under the ordinance, in that it fails to allege that the peddling from a box car was at retail, it must be remembered that even after j udgment a complaint will not be viewed with the same strictness on habeas corpus as if tested by a demurrer or on appeal from the judgment. And again, that the common-law rule of strict construction of complaints and indictments has been liberalized by force of statute. Sections 208, 209, 622, Criminal Pr. Act (Rev. Laws, secs. 7058, 7059, 7472). By the terms of said section 3 of the charter of the city of Reno, \\\"the practice and proceedings in said (municipal) court shall conform as nearly as practicable, to the practice and proceedings of justice's courts in similar cases.\\\" It is true the words \\\"at retail\\\" employed in the ordinance are omitted from the complaint, \\\"but other words conveying the same meaning may be used\\\" as permitted by section 208, supra. And if \\\"the act or omission charged as an offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended,\\\" it will be sufficient. Section 209, supra. With these statutory rules, and the nature of this proceeding in mind, we are of the opinion that the complaint which charges the petitioner with peddling from a railroad box car without procuring a license is sufficient. To constitute peddling there must be selling and delivering to customers. 21 R. C. L. 184. The use of the word \\\"peddling\\\" was therefore sufficient to inform petitioner that he was charged with selling and delivering at retail.\\nDecember 19, 1924.\\nBy the terms of section 1 of the ordinance, a freight car is not a fixed place of business. So it having been alleged that the peddling was from a railroad box car, it was unnecessary to allege that it was not a fixed place of business.\\nWe are uncertain as to whether petitioner seeks to make a point as to the sufficiency of the complaint from the fact that the term \\\"railroad box car\\\" is used therein instead of \\\"freight car\\\" as employed in the ordinance. However, it is not likely that petitioner was misled by the former term in the complaint.\\nThe writ is dismissed.\"}"

nev/4574771.json

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+"{\"id\": \"4574771\", \"name\": \"THE STATE OF NEVADA, Ex Rel. F. E. BROCKLISS, Petitioner, v. H. C. JEPSEN, County Clerk of Douglas County, Respondent\", \"name_abbreviation\": \"State ex rel. Brockliss v. Jepsen\", \"decision_date\": \"1922-07\", \"docket_number\": \"No. 2571\", \"first_page\": 193, \"last_page\": 196, \"citations\": \"46 Nev. 193\", \"volume\": \"46\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T17:55:10.494657+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ducker, J.: I concur.\", \"parties\": \"THE STATE OF NEVADA, Ex Rel. F. E. BROCKLISS, Petitioner, v. H. C. JEPSEN, County Clerk op Douglas County, Respondent.\", \"head_matter\": \"[No. 2571]\\nTHE STATE OF NEVADA, Ex Rel. F. E. BROCKLISS, Petitioner, v. H. C. JEPSEN, County Clerk op Douglas County, Respondent.\\n[209 Pac. 501]\\n1. Elections \\u2014 Heading for Nonpartisan Candidate Groups on Primary Election Ballots Stated.\\nUnder the primary election act of 1917, sec. 12, subd. (e), as amended by Stats. 1920-21, c. 248, providing for grouping candidates on primary ballots under their respective offices, and that each group shall be preceded by the words \\u201cYote for one\\u201d or \\u201cYote for two,\\u201d according to the number, to be nominated, the statute providing no different instructions for \\u25a0 nonpartisan offices, and section 22 providing that for nonpartisan offices, where only one person can be elected, the two receiving the most votes shall be nominees, the words \\u201cVote for two\\u201d should precede each group of at least three nonpartisans, where but one can be elected.\\n2. Statutes \\u2014 Where Language Is Plain, There Is No Room for Construction.\\nWhere the language of a statute is plain and the meaning unmistakable, there is no room for construction, and the courts may not search for the meaning beyond the statute itself.\\nOriginal proceeding. Mandamus by the State, on the relation of F. E. Brockliss, to command H. C. Jepsen, as County Clerk of Douglas County, to have certain primary election ballots printed.\\nPeremptory writ issued against respondent.\\nGeorge S. Brown, H. R. Cooke, and A. D. Ayres, for Petitioner.\\nRobert Richards, for Respondent.\", \"word_count\": \"1350\", \"char_count\": \"7998\", \"text\": \"By the Court,\\nCallahan, District Judge:\\nThe petition prays for a peremptory writ of mandamus, commanding H. C. Jepsen, as county clerk of Douglas County, to cause to be printed sample ballots which, after the designation for the offices of justice of the supreme court and regent of the University of Nevada, shall have printed thereon the words \\\"Vote for two,\\\" and to cause the official ballots which are used at said primary election to be printed in the same manner. A general demurrer was interposed to the petition.\\nThere were three candidates for the nomination for each of those offices, all of which are nonpartisan under the law, and the sole question is: Shall the names of each group of candidates be preceded by the words \\\"Vote for one\\\" or \\\"Vote for two.\\\" On account of the short period of time allowed by law in which the sample ballots and official ballots had to be printed, an immediate decision was necessary, and it was stipulated that the court might render its decision forthwith and write an opinion later. It was thereupon decided that the demurrer should be overruled and the petition granted, requiring the defendant to precede the names of each group of candidates referred to in the amended petition with the words \\\"Vote for two.\\\"\\nIn the year 1917 (Stats. 1917, c. 155) the legislature passed a new primary election act, which has since been amended (Stats. 1921, c. 248) in some respects. In brief, and so far as applicable to the point, it provides for political parties, and that such political parties may, at the primary election, nominate candidates for public offices. Such political parties are partisan organizations, whose members are allowed to, participate, at the primary election, in the nomination of their respective party candidates for political offices. The act provides that all judicial offices and school offices are nonpartisan offices, and the names of candidates for nonpartisan offices shall appear alike on the ballots of each political party, without any party designation ox-party name thereafter. Therefore, when a partisan elector approaches the polls to vote at any primary election, he is handed a partisan ballot of the party with which he affiliates, as shown by his registration, on which ballot there appears the names of all of his party candidates for nomination by that party, and also the names of all nonpartisan candidates, in which there is a contest for nomination. If the voter is registered for the primary without a declaration- of party affiliation, he is given a ballot containing only the names of the nonpartisan candidates, among whom there is a contest for nomination.\\nSection 22 of the act provides that the party candidate who receives the highest vote at the primary shall be declared to be the nominee of his party for the November election. In case of an office to which two or more candidates are to be elected at the November election, those party candidates equal in number to the positions to be filled, who receive the highest number of votes at the primary shall be declared the nominees of their party. In case of a nonpartisan office, to which only one person can be elected at the November election, the two candidates receiving the highest number of votes shall be declared to be the nonpartisan nominees. In the case of a nonpartisan office, to which two or more persons may be elected at the November election, those candidates equal in number to twice the number of positions to be filled, who receive the highest number of votes, shall be declared to be the nonpartisan nominees for such office. It is therefore clear that each partisan organization which complies with the primary act has the right to nominate one partisan candidate for each political position to be filled at the general election, but as to nonpartisan offices it is also clear that the whole of the registered electors who vote at the primary have the right to nominate two candidates for each nonpartisan position to be filled at the general election.\\nSubdivision (e) of section 12 of the act as amended, which is substantially the same as it was when the act was originally adopted, states what instructions shall be placed on the primary ballot whether the candidate be partisan or nonpartisan. So far as it is applicable to the point at issue, it provides that the names of the candidates shall be grouped on the primary ballots according to the office for which they are candidates, and the names in each group shall be preceded by the designation of the office for which the candidate seeks nomination \\\"and the words 'Vote for one' or 'Vote for two' or more, according to the number to be nominated.\\\" The statute provides no different instructions for a nonpartisan office; consequently \\\"the words 'Vote for one' or 'Vote for two' or more, according to the number to be nominated,\\\" apply alike both to partisan and nonpartisan candidates, and the statute means that each group of names of candidates on the primary ballots shall be preceded by the words \\\"Vote for one\\\" or \\\"Vote for two,\\\" or more, according to the number to be nominated by the political party or body nominating candidates for the office or position to be filled. If the candidates are partisan, and but one person can be elected to that office at the general election, then each political party can nominate but one candidate for that office; but if the candidates are nonpartisan \\u2014 that is, if they are seeking the nomination for a nonpartisan office, and but one person can be elected to that office at the general election \\u2014 the law clearly provides that two persons may be nominated for that office by the electors as a whole, who vote ,at the primary election. Since there were three candidates for the nomination for each of the nonpartisan offices to be filled, mentioned in the amended petition, and since two candidate were to be nominated for each of those offices, under the expressed language of the legislature, it follows that the words \\\"Vote for two\\\" should precede the names of each group of candidates mentioned in the a,mended petition.\\nWhere the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself. 25 R. C. L. 957, 958.\\nDucker, J.: I concur.\\nColeman, J.: I concur.\\nSanders, C. J., being disqualified, Callahan, District Judge, participated in the consideration of this case, pursuant to designation by the Governor.\"}"

nev/4588076.json

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+"{\"id\": \"4588076\", \"name\": \"In the Matter of the Application of GEORGE OLIVER ROBERSON for a Writ of Habeas Corpus\", \"name_abbreviation\": \"In re Roberson\", \"decision_date\": \"1915-04\", \"docket_number\": \"No. 2168\", \"first_page\": 326, \"last_page\": 337, \"citations\": \"38 Nev. 326\", \"volume\": \"38\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T18:47:35.541453+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Application of GEORGE OLIVER ROBERSON for a Writ of Habeas Corpus.\", \"head_matter\": \"[No. 2168]\\nIn the Matter of the Application of GEORGE OLIVER ROBERSON for a Writ of Habeas Corpus.\\n[149 Pac. 182]\\n1. Habeas Corpus \\u2014 Extradition\\u2014Fugitive prom Justice.\\nA person sought to be extradited may show upon a proceeding in habeas corpus that be is not a fugitive from justice.\\n2. Extradition \\u2014 Place op Commission of Offense \\u2014 Fugitive prom Justice.\\nA person must be within the state at the time of the commission of the acts constituting the offense for which he is sought to be extradited in order to become a fugitive from justice.\\n3. Extradition- \\u2014 -Fugitive prom Justice \\u2014 Wife Abandonment.\\nPetitioner in habeas corpus was married in the state to which he was sought to be extradited. I-Ie was a minor and was dependent upon his father for support. After the marriage defendant and his wife separated voluntarily, the wife going back to live with her mother. When petitioner left the state he had no intention of separating from his wife, or of abandoning, her. Meld, that he was not a fugitive from justice within the law of extradition upon the charge of wife abandonment in the state of his marriage.\\nApplication by George Oliver Roberson for a writ of habeas corpus.\\nWrit granted, and petitioner discharged.\\nGeorge Springmeyer, for Petitioner:'\\nPetitioner is not a fugitive from the justice of the State of North Carolina, in that he is not legally married. (Section 2088, Rev. Laws N. C. 1905; section 1560, Id.)\\nVenue must be laid in the county in which the crime is alleged to have been committed. (State v. Patterson, 5 N. C. 443; State v. Pray, 30 Nev. 206, 208.) A crime committed in one county or district cannot be tried in another county. (Ex Parte Kuhns, 36 Nev. 487, 137 Pac. 83; Ex Parte Smith, 35 Nev. 30; Eureka County Bank Cases, 35 Nev. 80.)'\\nThe crime is committed and the venue may be laid only in the county where the parties lived together as husband and wife, and where the husband separated from or left his wife. (State v. Justus, 85 Minn. 114, 88 N. W. 415; People v. Sagazei, 59 N. E. 1031; Cuthbertson v. State, 101 N. W. 1031; State v. Shuey, 74 S. W. 369.) Abandonment must be physical, and not merely constructive. (Milbourne v. State, 161 Ind. 364, 68 N. E. 684; People v. Wexler, 136 N. Y. S. 679; People v. Flury, 173 111. App. 640.)\\nSweeney & Morehouse, Geo. B. Thatcher, Attorney-General, and E. T. Patrick, Deputy Attorney-General, for Respondent:\\nThe laws of North Carolina make it a criminal offense for a man to abandon his wife and child. This court has no right to pass upon the guilt or innocence of petitioner. The questions of venue and jurisdiction should not be confused.\\nA fugitive from justice is one who, having within a state committed a crime against its laws, when he is sought to be submitted to its criminal process to answer for his offense, has left its jurisdiction and is found within the territory of another st\\u00e1te. (Ex Parte Dixon, 69 S. W. 943; State v. Richter, 37 Minn. 436; In Re Voorhies, 32 N. J. L. 141; People v. Pinkerton, 17 Hun, 199; Johnson v. Ammons, Ohio Dec. Am. Law Record, 747; Ex Parte Van Vleck, 6 Id. 636; Coleman v. State, 53 Tex. Crim. 93; Brun v. Rayner, 124 Fed. 481.)\", \"word_count\": \"4216\", \"char_count\": \"23792\", \"text\": \"By the Court,\\nMcCarran, J.:\\nThis is an original proceeding in habeas corpus.\\nPetitioner relates, among other things, that he is unlawfully imprisoned, detained, confined, and restrained of his liberty by J. H. Stern, as sheriff of Ormsby County, Nevada, and J. D. Hillhouse, as chief of police of the city of Reno, Washoe County, Nevada, and by J. C. Crawford, as sheriff of Martin County, State of North Carolina, who has been deputized and appointed by the governor of the State of North Carolina as the agent of that state for the purpose of taking and carrying petitioner from the State of Nevada to the State of North Carolina.\\nPetitioner relates that he is a citizen and resident of the State of Nevada; and the admitted facts are that on the 25th day of February, 1915, the governor of the State of Nevada made and executed an executive warrant, pursuant to a requisition issued by the governor of North Carolina; such requisition declaring petitioner to be a fugitive from justice from that state, by reason of the fact that the grand jury of the superior court of Martin County, N. C., had filed an accusation in that court, wherein petitioner was charged with the crime of having deserted his wife and child in said county of Martin, State of North Carolina.\\nThe accusation as filed by the grand jury of Martin County, in part is as follows:\\n\\\"The jurors for the state upon their oath present: That Ollie Roberson, late of the county of Martin, on the _day of December, in the year of our Lord one thousand nine hundred and thirteen, with force and arms, at and in the county aforesaid, unlawfully and wilfully did abandon his wife, one Lucy Roberson, without providing adequate support for her, the said Lucy Roberson, and the child which he, the said Ollie Roberson, left on the care of his said wife, had heretofore begotten contrary to the form of the statute in such case made and provided, and against the peace and dignity of .-the state; and the jurors aforesaid, upon their oath aforesaid, do further present: That the said Ollie Roberson, late of the county of Martin, then on the____day of December, 1913, at and in the county aforesaid, while living with his wife, one Lucy Roberson, continually from said last-mentioned day, while so living with his wife to the time of taking this inquisition, unlawfully and wilfully did omit, neglect and refuse to provide adequate support for his said wife, the said Lucy Roberson, and did fail to support her and the child which he, the said Ollie Roberson, upon the body of his said wife had begotten.\\\"\\nIt appears from the record that petitioner was arrested by J. D. Hillhouse, chief of police of the city of Reno, upon the executive warrant of the governor of this state, and thereafter, by some proceeding, the nature of which is unknown to us, was admitted to bail; and later, having come into Ormsby County, surrendered himself to the sheriff of this county and sued out this writ.\\nIt is suggested by counsel for respondent in this case that petitioner is not entitled to invoke the writ of habeas corpus, for the reason that he is in custody of his own voluntary act in having surrendered to the sheriff of this county. However that may be, even though we should hold this point well taken, petitioner would be entitled to institute original proceedings in the court against any one in whose custody he might hereafter be held, until the merits of the matter involving the legality of the proceedings under which and by reason of which he was restrained of his liberty had been finally determined by this court. Hence, a holding by this court at this time to the effect that petitioner was not entitled to the writ by reason of the fact that he was in voluntary custody would only entail additional proceedings and thus delay. For this reason, we have concluded that a decision upon this suggested phase is not essential.\\nThis court has in the past established a rule that a person held upon an executive warrant may, upon habeas corpus proceedings, show that he is not a fugitive from justice; and upon such showing being made, we have held that he is entitled to be discharged.\\nIn the Eureka Bank Cases, 35 Nev. 80, 126 Pac. 655, 129 Pac. 308, this court said:\\n\\\"After all, should not the controlling question be whether there is any probable cause or evidence to indicate that the accused has committed any act within the jurisdiction of the court, which the law makes criminal, or is there anything for it to try, or any evidence available to the state which would indicate the commission of an offense or sustain a conviction ? Under our statute, with its liberal provision for taking testimony and for the examination of the merits of the case, we see no reason why we should not investigate it to the bottom and discharge any of the petitioners, if justice requires, or if it is clear that they have not committed any acts within the county or the jurisdiction of the court, which the law makes criminal.\\\"\\nAgain, in the case of Ex Parte Kuhns, 36 Nev. 487, 137 Pac. 83, 50 L. R. A. n. s. 507, we referred to the Eureka Bank cases approvingly, and held that a person who was not within a demanding state at the time an alleged crime was committed could not be a fugitive from justice, unless he be an accessory.\\nIn the case at bar, it is the contention of petitioner, and his contention in this respect is borne out by the testimony of his wife, that he never lived with his wife in Martin County, N. C. The facts disclosed by the testimony of the wife of petitioner are to the effect that they were married on the last day of June, 1913, by a justice of the peace, near Williamston, in Martin County, N. C.; that the marriage took place between 7 and 8 o'clock in the morning; that immediately after the marriage the couple went by automobile from the residence of the justice of the peace to the town of Williamston, boarded a train at that place, and continued on to Raleigh, Wayne County, N. C., and there continued to live together as man and wife until December 17, 1913, on which date petitioner, according to his wife's testimony, went to Hamlet, N. C.; and on the following day, to wit, December 18, his wife left their former place of abode in Raleigh and returned to the home of her mother and grandfather, with whom she had lived prior to the marriage in Martin County, North Carolina.\\nTestimony of the wife of petitioner also discloses that prior to his departure from Raleigh for Hamlet, petitioner employed a physician in the city of Raleigh for the benefit of his wife, she being shortly to be delivered of a child.\\nWith reference to her leaving Raleigh on the 18th of December, the day following the departure of her husband, Mrs. Roberson testified as follows:\\n\\\"Q. You say it was your mother or grandfather who sent you the money with which to come home? A. My mother.\\n\\\"Q.. Will you please, mam, tell me when it was she sent it to you? A. The week before. I came the next.\\n\\\" Q. Do you mean to say that a week before you came home that your mother had sent you money to come home on? A. Yes, sir; that is what I mean to say.\\n\\\"Q. Then you knew a week before he left you in Raleigh that you were coming home? A. Yes, sir; I knew that I intended to. \\\"\\nTaking this testimony, as given by the wife of petitioner, together with petitioner's own statement under oath in this court, it appears that the separation which occurred on December 17 in Raleigh, Wayne County, N. C., between petitioner and his wife, was a mutual separation, whether it was at that time intended to be permanent or otherwise. There is nothing in the testimony of the wife of petitioner, as it is before us, from which we could infer that her act in separating from petitioner was other than a voluntary one on her part. They had lived in Raleigh from the date of their marriage, to wit, the last day of June, 1913, until the 17th day of December of the same year. He had attended school to some extent during their stay in Raleigh.\\nThe testimony of petitioner is to the effect that from Hamlet he went to Poughkeepsie, N. Y., and there attended school, later coming to Nevada and entering the university of this state, in which institution it appears he is still enrolled as a student.\\nFrom all the facts and circumstances as they are presented by the record, we can come to no other conclusion than that the separation which took place between petitioner and his wife on the 17th day of December, 1913, in Raleigh, Wayne County, was an act of mutual assent, the wife leaving the former abiding place and returning to the home of her parent and guardian without any intimation, so far as the record discloses, of trouble or discord occurring between the parties.\\nThere is a circumstance in the record, as disclosed from the testimony of the wife of petitioner, which might lead us to believe that petitioner had expected his wife to remain in Raleigh, at least until after her child was born. This might be inferred, as we have already said, from the fact that petitioner had engaged a Raleigh physician to attend his wife on the occasion of her confinement. Whether or not it be a proper inference to draw from this that petitioner expected his wife to remain in Raleigh is immaterial.\\nThe money on which Mrs. Roberson returned to her former home was, according to her statement, sent to her by her mother; and it is not unfair to presume, from the record, and especially from the testimony of the wife of petitioner, that the money was sent to her by her mother for the very purpose toward which she applied it, namely, to pay her expenses back to her mother's home. We refer to these facts only to support the conclusion which to us appears manifest from the record; that the separation between petitioner and his wife was mutual; and the separation, constituting the act of desertion, if desertion it be, occurred in the city of Raleigh, Wayne County, N. C., and not in Martin County.\\nIt was suggested in the oral argument by attorney for respondent that the jurisdiction of the superior court of any county in North Carolina was not confined exclusively to matters occurring within that county, and hence the jurisdictional power of the superior court of Martin County was sufficient to give that court control over this case, even though the desertion took place in Wayne County.\\nIt is our judgment that respondent's position in this respect is untenable, in view of the decision of the superior court of North Carolina in the case of State v. Patterson, et al., 5 N. C. 443, wherein the court said:\\n\\\"The superior court of one county has no jurisdiction of criminal offenses committed in another county, although both of the counties belonged to the same judicial district, before the act of 1806, ch. 2.\\n\\\"The legislature intended to give to the several county superior courts, jurisdiction over the same offenses and civil matters which the district superior. courts had in 1806, limiting the territory within which that jurisdiction was to be exercised to the county in which the court was held. In all indictments, it must appear that the offense charged was committed within the territorial jurisdiction of the court.\\\"\\nIt has been held almost uniformly by the courts, in which this subject has been considered, that only the courts of the state in which the abandonment occurred have jurisdiction. (State v. Weber, 48 Mo. App. 503; State v. Miller, 90 Mo. App. 131; State v. Shuey, 101 Mo. App. 438, 74 S. W. 369; People v. Flury, 173 Ill. App. 640; People v. Sagazei, 27 Misc. Rep. 727, 59 N. Y. Supp. 701; 21 Cyc.; Ex Parte Kuhns, supra.)\\nWhile, as we have already stated, the courts have held almost universally that the courts of the state in which the act of abandonment took place have jurisdiction to try parties accused, the question as to whether or not a party can be successfully tried and convicted in one county, where the abandonment admittedly took place in another, has not been before the courts to such an extent as to crystallize any particular rule relative to jurisdiction. Notwithstanding this, however, courts in which this matter has been considered have held quite uniformly that prosecution for the crime of abandonment must take place in the county where the parties resided at the time of their separation.\\nSays the Supreme Court of Nebraska, in the case of Cuthbertson v. State, 72 Neb. 727, 101 N. W. 1031:\\n\\\"It is quite immaterial where the first act of separation occurs, if such act is followed by a wilful refusal to support at the place previously provided by the husband and considered by them as their home. The county in which the home is fixes the venue of the offense.\\\" To the same effect is the case of People v. Vitan (Ct. Gen. Sess.), 10 N. Y. Supp. 909.\\nSpeaking upon this subject in a case where the state made a similar contention to that made by respondent here, the Supreme Court of Minnesota said:\\n\\\" If the contention of the state be correct, then the wife may, by taking up her residence in any county in the state she may elect, make the crime ambulatory, and render the husband guilty of felony therein, although he may never have been within such county. That she cannot do so is too obvious to justify any discussion of the proposition, for this case does not fall within the limited class of cases in which a party may become liable to punishment in a particular jurisdiction while his personal presence is elsewhere, for example, circulating a libel in a county in which he is not personally present.\\\" (State v. Justus, 85 Minn. 114, 88 N. W. 415.)\\nSaid the court in Commonwealth v. Douglas, vol. 2, Lancaster Law Review, 179, speaking upon a similar subject:\\n\\\"If she (the wife) voluntarily moves into another county, it does not change his (the husband's) domicile, or make him a deserter for not following her. \\\"\\nAs we have already observed, in the case at bar, the only place where petitioner and his wife established a domicile, or lived together as man and wife, was in the city of Raleigh, Wayne County, N. C. The desertion, if any, took place in that city and county. The offense with which petitioner stands accused by the indictment found in Martin County, North Carolina, is not a continuing offense, nor one which might be termed transitory or ambulatory in its nature.\\nIn the case of Ex Parte Waterman, 29 Nev. 288, 89 Pac. 291, 11 L. R. A. n. s. 424, 13 Ann. Cas. 926, this court went at length into the subject of its right to review on habeas corpus, the sufficiency of the papers on which the executive warrant is issued; and in that case the court, speaking through Mr. Justice Sweeney, said:\\n\\\"While I believe in paying the highest respect to the requisition warrants of chief executives of other states, and believe that any executive would hesitate before issuing his requisition warrant knowingly without believing that sufficient and legal grounds existed on which to ask the extradition of a defendant, yet my regard for the sacred writ of habeas corpus is such that I would jeopardize the retention of the good-will of any one rather than nullify, modify, or limit in any way the prerogatives of this great writ \\u2014 the greatest bulwark of our liberty\\u2014 and which gives every person under our glorious government the right to appeal to a judicial tribunal when restrained of his liberty, and privileged to have the party in whose custody he is detained directed' to produce his body, and show by what right or authority of law he is depriving him of his liberty. \\\"\\nAt another place in the opinion, the learned justice said:\\n\\\" If a defendant is unjustly accused, or illegally charged, or restrained of his liberty, certainly justice demands that he should not be deprived of his liberty or removed hundreds or thousands of miles, as the case may be, there to wait or be put on trial on an illegal charge. The sooner his detention, if it be illegal, is so ascertained, the better.\\\"\\nThe right of this court to go behind the executive warrant and inquire into the validity of the papers upon which or by reason of which the executive warrant issued was emphasized in the case of Ex Parte Waterman, supra. There is no question going to the validity of papers or proceedings preliminary to the issuance of an executive warrant for one charged as being a fugitive from justice more vital or significant to the whole proceeding than the jurisdiction of the court or tribunal out of which the original accusation, information, or indictment issued. If it be an undisputed fact, such as we deem it in this case, that the court out of which the indictment issued was and is devoid of jurisdiction to try the petitioner on the accusation thus filed; if; as a matter of fact, that court, under the rule laid down by the Supreme Court of the State of North Carolina (State v. Patterson, supra), would be precluded, for want of jurisdiction, from passing judgment on this defendant on the indictment thus filed, in view of the fact that the offense, if any, was not committed within the county, in which that court has jurisdiction\\u2014 we find ourselves constrained to reassert the rule so ably laid down by the learned jurist in the case of Ex Parte Waterman, supra, to the effect that justice demands that the petitioner should not be removed hundreds or thousands of miles, as the case may be, there to wait the action of a court which must eventually declare its own lack of jurisdiction.\\nIt is well-settled law that a person sought to be extradited may show upon a proceeding in habeas corpus that he is not a fugitive from justice. In the recent case of Ex Parte Kuhns, supra, we held that where the petitioner at the time of leaving the State of Pennsylvania was not in default under the statute of that state \\\"making it a misdemeanor for a husband and father to desert and neglect to support his wife or child, \\\" his subsequent neglect, while a citizen of another state, to support his family in the demanding state, would not render him a fugitive from justice therefrom.\\nSubject to some possible exceptions, within which this character of case does not fall, it is the general rule that a person must be within a state at the time of the commission of acts constituting the offense in order to become a fugitive from justice.\\nPetitioner is indicted under a section of the criminal code of North Carolina (Revisal, 1905, sec. 3355), which provides:\\n\\\" If any husband shall wilfully abandon his wife without providing adequate support for such wife, and the children which he may have begotten upon her, he shall be guilty of a misdemeanor. \\\"\\nIt appears from the evidence introduced upon the hearing of this case without conflict, that the petitioner was under 18 years of age at the time of his marriage, and is still a minor; that the petitioner was at such time, ever since has been, and is now, without means and dependent upon his father for support; that after the marriage, defendant and his wife, who was near his own age, went to live at Raleigh, where petitioner attended school; th\\u00e1t it was the desire of petitioner's father that petitioner- complete his education, and -it would seem to have been the understanding of all parties that petitioner was to complete his education at his father's expense before assuming the burdens of providing for his family; that after residing some months at Raleigh, it was mutually agreed between petitioner and his wife that petitioner should go to Poughkeepsie, N. Y., and continue his studies there at his father's expense; that at the time of petitioner's departure for Poughkeepsie, the relations of the parties were harmonious and so continued for some time thereafter; that at the time petitioner left the State of North Carolina he had no intention of permanently separating from his wife or abandoning her; that if petitioner formed an intent to abandon his wife and child, such' intent was formed some considerable time after he. had left the State of North Carolina.\\nThis case in some respects is sui generis, but from the fact that the petitioner left the State of North Carolina under the circumstances disclosed without conflict in the evidence, I am of the opinion that he is not a fugitive from justice within the law of extradition, and is entitled to his discharge.\\nFrom the foregoing it follows that the writ of. habeas corpus heretofore issued by this court should be perpetuated, and that petitioner should be discharged from custody.\\nIt is so ordered.\"}"

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+"{\"id\": \"4594384\", \"name\": \"Ex Parte DAVIS\", \"name_abbreviation\": \"Ex parte Davis\", \"decision_date\": \"1910-07\", \"docket_number\": \"No. 1903\", \"first_page\": 309, \"last_page\": 319, \"citations\": \"33 Nev. 309\", \"volume\": \"33\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T18:38:44.315976+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ex Parte DAVIS\", \"head_matter\": \"[No. 1903]\\nEx Parte DAVIS\\n1. Habeas Corpus \\u2014 Scope of Writ.\\nA writ of habeas corpus cannot be used, to perform tbe functions of an appeal or writ of error, but can only .review questions going to the jurisdiction of the court to enter the particular judgment, and not as to whether the court erred in the exercise of such jurisdiction.\\n2. Indictment and Information \\u2014 Exceptions.\\nIn an indictment or criminal complaint it is not necessary to allege that defendant is not within an exception specified in the statute.\\n3. Criminad. Law \\u2014 Courts\\u2014Jurisdiction\\u2014Exceptions.\\nWhere, on trial for a criminal offense, the evidence without conflict shows that defendant is exempted from the penal provisions of the act (Stats. 1903, c. 114), the court is without power to' render a judgment of conviction.\\n4. Habeas Corpus \\u2014 Scope of Writ \\u2014 Judgment\\u2014Jurisdiction.\\nWhere the evidence without conflict establishes that the defendant belongs to a class not within a penal statute, habeas corpus is available to bring up for determination the court\\u2019s jurisdiction to render judgment of conviction, and to obtain defendant\\u2019s discharge.\\n5. Weapons \\u2014 Carrying Concealed Weapons \\u2014\\u2022 Statutes \\u2014 Construction \\u2014 Exceptions\\u2014\\u201cActing or Engaged in the Business of Common Carriers.\\u201d\\nThe act (Stats. 1903, c. 114) regulating and prohibiting the carrying of concealed weapons declares (section 4) that it shall not apply to peace officers in the discharge of their duties, nor to persons acting or engaged in the business of common carriers in the state, or to persons traveling through the state. Held, that the words \\u201cacting or engaged in the business of common carriers\\u201d did not limit the exemption to persons engaged \\u201cin common carrying,\\u201d but that the exemption included persons acting or engaged in other business of common carriers than actual transportation of freight or passengers, such as the guarding of trains, depots, or property of common carriers, and that watchmen employed by a railroad company, though not engaged in train service, were within the exception.\\nOriginal proceeding. Application by R. A. Davis for writ of habeas corpus.\\nWrit granted. Petitioner discharged.\\nThe facts sufficiently appear in the opinion.\\nJames F. Dennis, and Campbell, Metson & Brown, for Petitioner.\\nR. C. Stoddard, Attorney-General, and Cleveland H. Baker, District Attorney, for the State.\", \"word_count\": \"3602\", \"char_count\": \"21293\", \"text\": \"Per Curiam:\\nThis is an original proceeding in habeas corpus. Petitioner was convicted, in the justice's court of Tonopah township of a misdemeanor, to wit, carrying a concealed weapon, committed on the 4th day of April, 1910. Upon appeal to the district court in and for Nye County, a trial was had de novo, and judgment of conviction again entered against him, and a fine imposed for such offense of $100, and that, in default of payment of said fine, he be imprisoned in the county jail of Nye County one day for each $2 of said fine. At the conclusion of the trial in the district court, the court sitting without a jury, a jury having been expressly waived, and the cause having been submitted for decision and judgment, the court filed an opinion in writing, including findings of fact in the nature of a special verdict. The facts so found by the court are as follows:\\n\\\" (A) The Tonopah and Goldfield Railroad is a common carrier.\\n\\\" (B) The defendants were employed as watchmen by the said railroad company.\\n\\\" (C) The defendants were not employed in train service; that is, no one of them was employed on April 4, 1910, as a conductor, a brakeman, an engineer, or a fireman.\\n\\\" (D) The defendants, on April 4,1910, in the town of Tonopah, Nye County, Nevada, were carrying concealed weapons.\\n\\\" (E) The said concealed weapons were carried under instructions from the special agent of the said company, who in turn was acting under instructions from the superintendent.\\n\\\" (F) The attorneys of the company had advised the superintendent that concealed weapons could be carried by all employees- of the railroad company; the language used being in part as follows: 'In our opinion, it permits all persons on our payroll to carry concealed weapons. \\\"\\nThe statute (Stats. 1903, c. 114), for a violation of the provisions of which petitioner was convicted, is entitled \\\"An act to prohibit the carrying of concealed weapons and to provide for the punishment thereof, \\\" and reads as follows:\\n\\\"Section 1. It shall be unlawful for any person in this state to wear, carry or have concealed upon his person, in any town any dirk-knife, pistol, sword in case, slung-shot, or other dangerous weapon, without first obtaining permission from the board of county commissioners, attested by its clerk, of the county in which such concealed weapon shall be carried.\\n\\\"Sec. 2. The board of county commissioners of any county in this state may, upon an application made in writing, showing the reason of the person, or the purpose for which any concealed weapon is to be carried, grant permission under its seal, and attested by its clerk, to the person making such application, authorizing such person to carry the concealed weapon described in such permission.\\n\\\" Sec. 3. Any person who shall violate any of the provisions of this act shall be guilty of a misdemeanor and on conviction thereof shall be fined not less than twenty dollars, nor more than five hundred dollars, or by imprisonment in the county jail for not less than thirty days, nor more than six months.\\n\\\"Sec. 4. This act shall not apply to peace officers in the discharge of their duties, nor to persons acting or engaged in the business of common carriers in this state, or to persons traveling through the state. \\\"\\nA number of contentions have been made by counsel for petitioner upon the hearing, only one of which will be necessary to consider. At the outset it is proper to note that the writ of habeas corpus cannot be used to perform the functions of an appeal or writ of error, that it can only go to a question of the jurisdiction of the court to enter the particular judgment, and not as to whether the court erred in the exercise of such jurisdiction.\\nIt is, in effect, contended by counsel for the state that, conceding that the court found as a fact that the petitioner was in the class of persons exempted from the penal provisions of the-act, supra, nevertheless the court, had jurisdiction of the person of petitioner and the subject-matter embraced within the criminal complaint, and hence had jurisdiction to impose the particular judgment entered. If we concede this contention to be correct, it is the end of this proceeding. If this contention is the law, then upon a trial in the district court of a person charged with a violation of this act the court may, for example, find as a fact that he was the sheriff of the county, that he was carrying the concealed weapon in the discharge of his duty as such sheriff, and may, nevertheless, enter a judgment that he is guilty, and upon such judgment impose sentence of imprisonment; such judgment and sentence being only error of law, and not an excess of jurisdiction, which this court could redress.\\nAgain, suppose that the case had been tried by jury and a verdict of not guilty returned, and the court, notwithstanding, imposed judgment and sentence of imprisonment; can it be said that this would be simple error within jurisdiction? These examples are extreme cases, and probably would not be found in the concrete; but they are examples wherein the court would have jurisdiction of both the subject-matter and the person, and, if the rule is as contended for by counsel for the state, they would not be examples of cases of excess of jurisdiction, and hence beyond relief by habeas corpus.\\nThe modern doctrine of jurisdiction, the excess of which habeas corpus may relieve against, goes not only to jurisdiction over the person and the subject-matter, but to the power or jurisdiction to render the particular judgment. (21 Cyc. 296, and numerous cases cited in note 72, p. 297.) With this modern doctrine, which is more in accord with reason and justice, this court is already in accord. (Ex Parte Webb, 24 Nev. 238; Ex Parte Dela, 25 Nev. 346; Ex Parte Rickey, 31 Nev. 82; Ex Parte Roberts, 9 Nev. 44, 16 Am. Rep. 1.)\\nIn Ex Parte Webb, supra, this court said: \\\"There are three essential elements necessary to render convictions valid. These are that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render the particular judgment. If either of these elements is lacking, the judgment is fatally defective, and the prisoner held under such judgment may be released on habeas eorpus. (Brown on Jurisdiction, 110, and cases cited; Courts on Jurisdiction, 641, and citations.)\\\"\\nIn Ex Parte Rickey, supra, we quoted with approval from Re Corryell, 22 Cal. 178, also quoted in Ex Parte Kearney, 55 Cal.229,the following: \\\" 'The court derives its jurisdiction from the law, and its jurisdiction extends to such matters as the law declares criminal, and none other; and when it undertakes to imprison for an oifense to which no criminality is attached, it acts beyond its jurisdiction.' \\\"\\nNo better illustration of the wisdom and justice of this view of the law could be found than in cases like that under consideration, where a statute makes the doing of a certain act a penal offense, and then exempts a certain class of persons from its provisions. As against the exempted class the law has no force or effect, and the court is without power to impose punishment upon that exempted class for the doing of an act punishable as to others not within the exemption. In indictments or criminal complaints it is not necessary to allege that the defendant is not within an exemption specified in the statute; such exemption being regarded as a matter of defense. (State v. Robey, 8 Nev. 321; State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488; State v. Buckaroo Jack, 30 Nev. 325.)\\nWhere, however, upon the trial the evidence without conflict shows that the defendant is exempted from the penal provisions of the act, the court is without power to render a judgment of conviction. If there was a conflict in the evidence as to whether the defendant was or was not within the exempted class, unquestionably the trial court would have jurisdiction to determine the conflict, and if it determined that the defendant was not within the exemption upon such conflicting evidence its judgment on a case appealed from a justice's court would be conclusive. But where the evidence, without conflict, establishes that the defendant belongs to a class not .within the purview of a penal statute, a court has no other alternative but to discharge him. A judgment of conviction in such a case would be in excess of the court's power and void.\\nWe therefore think it clear that this court on habeas corpus may go behind the judgment in cases of this character, and inquire whether it conclusively appears that the petitioner is within the exemption from the penal provisions of the statute for a violation of which he stands convicted. It becomes, then, a question within the legitimate province of this court upon a writ of habeas corpus to determine whether, under the facts found by the lower court, the petitioner was within the exemption of the statute.\\nThe trial court for convenience of consideration, very properly divided the act in question into the following parts: \\\"(1) Unlawful to carry concealed weapons. (2) In any town. (3) Without obtaining permission of the county commissioners. (4) Commissioners may grant permits. (5) Penalty for violation. (6) Exemption of peace officers. (7) Exemption of common carriers. (8) Exemption of travelers through the state.\\\" Relative to the scope of the seventh subdivision made by the court, supra, the court said: \\\"This court is now called upon for the second time to supplement the work of the legislature of 1903 as to the act under discussion. It has already stricken from the act all parts thereof not relating directly to 'concealed' weapons, because of the limitations of the title. It is now called upon to add enough words to part 7 to clear up its application, for without additional words it is almost devoid of meaning.\\\" After a lengthy consideration of the purposes of the act and the rules of construction deemed controlling in its interpretation, the trial court reached the following conclusion : \\\"Part 7 of this act is therefore interpreted to read as follows: 'This act shall not apply to persons or corporations acting or engaged in the business of common carrier, or to such of their employees as are actually engaged as guards or messengers to protect property in transit, when on duty, or preparing for such duty, or returning from such duty.' \\\"\\nThere are rules governing the construction of penal statutes which do not apply to statutes generally, and which do not appear to have been taken into consideration by the trial court. The law is very jealous of the liberty of citizens, and this has led to the establishment cf stricter rules in the construction of penal statutes than apply to those of a different character.\\nIn the case of State v. Wheeler, 23 Nev. 152, this court, construing a penal statute providing for certain exemptions, said: \\\"But perhaps the strongest reason that can be given for the conclusion which we here announce is that this is a penal statute, and as such requires a strict construction when against a citizen, but a liberal one in his favor. 'A penal statute is one which imposes a forfeiture or penalty for transgressing its provisions, or for doing a thing prohibited.' Being penal, the proviso exempting persons from the operation of the law should, on the other hand,. receive a liberal interpretation. Mr. Bishop states the rule thus: 'While the parts of a penal statute which subject to punishment or a penalty are, from their odious nature, to be construed strictly, those which exempt from penal consequences will, because of their opposite character, receive a liberal interpretation.' (Bishop, Writ. Laws, secs. 196, 226.) To the same effect are Sutherland, Stat. Const., sec. 227; Endlich, Stat. Int., sec. 332.\\\"\\nIn Ex Parte Deidesheimer, 14 Nev. 311, this court said: \\\" Penal laws generally prescribe what shall or shall not be done, and then declare the consequences of a violation of either requirement. They should be plainly written, so that every person may know with certainty what acts or omissions constitute the crime. (Bish. on Stat. Crimes, 193; Beccariaon Crimes, 22, 45; The Schooner Enterprise, 1 Paine, 33 Fed. Cas. No. 4,499.) And in United States v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37 (opinion by Chief Justice Marshall), the court says: 'It has been said that, although penal laws are to be construed strictly, the intention of the legislature must govern in their construction; that, if a case be within the intention, it must be considered within the letter of the statute'. The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, not the judicial, department. It is the legislature, not the court, which is to define a crime and ordain its punishment. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one, indeed, which would justify a court in departing from the plain meaning of the words, especially in a penal act, in search of an intention which the words themselves do not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so.'. See, also, Sedgwick on the Construction of Stat. and Const. Law, 279, et seq.; Smith's Commentaries, 746; Bish. on Stat. Crimes, 193, et seq.\\\" (Ex Parte Rickey, 31 Nev. 102.)\\n\\\"It is, however, the object of the construction of penal as of all other statutes to ascertain the true legislative intent; and while the courts will not, on the one hand, apply such statutes to cases which are not within the obvious meaning of the language employed by the legislature, even though they be within the mischief intended to be remedied, they will not, on the other hand, apply the rule of strict construction with such technicality as to defeat the purpose of ascertaining the true meaning and intent of the statute.\\\" (26 Am. & Eng. Ency. Law, p. 659.)\\nThe legislature has enacted that \\\"this act shall not apply to persons acting or engaged in the business of common carriers in this state.\\\" The trial court has construed this language to mean: \\\"This act shall not apply to persons or corporations acting or engaged in the business of common carrier, or to such of their employees as are actually engaged as guards or messengers to protect property in transit, when on duty, or preparing for such duty, or returning from such duty.\\\" The legislature made no restriction to the exemptions specified in section 4 of this act, save as to peace officers.when.\\\"in the discharge of their duties.\\\" Under what theory of construction courts can place limitations on the language used by the legislature, so as to bring within such restricted construction persons liable to its penal provisions who are not manifestly included under the general provisions, is not clearly apparent.\\nUnder the rules governing the construction of' penal statutes, provisions creating an exception are to be liberally construed. (State v. Wheeler, supra.) Courts have nothing to do with the wisdom and policy of the- legislature as set forth in its enactments. It may have been unwise, from the viewpoint of the courts, to have created all the exceptions which it did in this particular statute, but the courts cannot presume to supplement their action by a virtual amendment of its provisions that is not in accordance with the manifest intent deducible from the language of the act itself.\\n'Under the provisions of this act it is not a misdemeanor for any one to carry a concealed weapon outside the limits of a town. Equally cogent reasons might be advanced why employees of a common carrier who are engaged as watchmen of the property of the carrier, or the property of its patrons in its depots, warehouses or other buildings, should be permitted to carry concealed weapons as those who are engaged as guards or messengers to protect property in transit. If we are to construe this law so as to limit it to guards and messengers having charge of property in transit, why exclude stage drivers, or engineers, firemen, conductors, or brakemen who have a part in the transportation of persons and property by the carrier? When an attempt is made to place limitations on the language of the legislature, and say that the exemption applies to this class of persons or employees, but does not apply to those in another class of the same general employment, we at once are lost in a maze of diversified reasoning relative to wisdom and policy, which naturally appeals with different degrees of force to different minds.\\nIt may have been unwise for the legislature not to have placed specific limitations upon all the exemption provisions of the statute, but the fact remains that it did not. For the courts to place limitations upon general exemption provisions in the case of a penal statute like this is something more than construction, and is violative of the rule that such provisions shall be liberally construed in favor of the individual. Penal statutes should be so clear as to leave no room for doubt as to the intention of the legislature, and where a reasonable doubt does exist as to whether the person charged with a violation of its provisions is within the statute, that doubt must be resolved in favor of the individual.\\nIf the legislature did not in fact intend th\\u00e1\\u00edt the required liberal construction be placed upon the exemption features of this statute, then certainly they failed to make such intent clear. In view of the language of the statute, we' cannot say that the legislature did not intend that a broad construction be placed on the exemption relative to common carriers when it used the different words of a general character, \\\"acting or engaged in the business of common carriers.\\\" Evidently this language, under the rule that we are bound to give a liberal construction to penal statutes, means something more than persons engaged \\\"in common carrying,\\\" and may include persons acting or engaged in other business of common carriers than actual transportation of freight or passengers, such, for instance, as the guarding of the trains, depots, or property of common carriers. Under such construction, we cannot see that persons who are employed as watchmen of the property of common carriers are clearly within the provisions of the statute. Not being clearly within its provisions, we are bound to hold that they are without its provisions. If the exemption be considered too broad, it is better that it be left to the lawmaking body to amend than for the courts to attempt to construe into the act a legislative intent that is not clearly manifest.\\nThe petitioner is discharged.\"}"

nev/4594693.json

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+"{\"id\": \"4594693\", \"name\": \"THE STATE OF NEVADA, ex rel. J. P. DONNELLEY, Chairman of the Republican County Central Committee of Esmeralda County, Relator, v. JOSEPH HAMILTON, as County Clerk of Esmeralda County, Nevada, Appellant\", \"name_abbreviation\": \"State ex rel. Donnelley v. Hamilton\", \"decision_date\": \"1910-10\", \"docket_number\": \"No. 1936\", \"first_page\": 418, \"last_page\": 434, \"citations\": \"33 Nev. 418\", \"volume\": \"33\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T18:38:44.315976+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sweeney, J.: I concur.\", \"parties\": \"THE STATE OF NEVADA, ex rel. J. P. DONNELLEY, Chairman of the Republican County Central Committee of Esmeralda County, Relator, v. JOSEPH HAMILTON, as County Clerk of Esmeralda County, Nevada, Appellant.\", \"head_matter\": \"[No. 1936]\\nTHE STATE OF NEVADA, ex rel. J. P. DONNELLEY, Chairman of the Republican County Central Committee of Esmeralda County, Relator, v. JOSEPH HAMILTON, as County Clerk of Esmeralda County, Nevada, Appellant.\\n1. Elections \\u2014 Primary Elections \\u2014 Right of Successful Candidate to Withdraw His Name from Official Ballot.\\nThe question .whether a candidate nominated at a primary election may have his name omitted from the general election ballot is a matter of policy for the legislature, and, where the legislature forbids the withdrawal of candidates nominated at a primary, the court cannot allow candidates to withdraw even for deserving reasons.\\n2. Statutes \\u2014 Construction\\u2014Legislative Intent.\\nThe intention of the legislature controls the courts in the construction of statutes, and such intention must be gathered from the language used and from the mischiefs intended to be suppressed or benefits to be attained.\\n3. Statutes \\u2014 Construction'\\u2014Special and General Provisions.\\nOne section of a statute treating specifically of a matter will prevail over other sections in which incidental or general reference is made to the same matter.\\n4. Common Law \\u2014 Adoption.\\nThe common law, except as specially abrogated, or except as unsuitable, prevails in Nevada.\\n5. Officers \\u2014 Duty to Perform \\u2014 Duties of Office.\\nAt common law a citizen could be required to perform the duties of an office.\\n6. Elections \\u2014 Right to Resign.\\nA candidate nominated at a primary election for a public office is not an officer within the statute allowing officers to resign.\\n7. Elections \\u2014 Primary Elections' \\u2014 Right of Successful Candidates at Primary Elections to Resign.\\nUnder the primary act (Stats. 1908-09, c. 198, sec. 5, subd. 4) requiring each candidate on filing his nomination papers to make an affidavit, that if nominated he will accept the nomination and not withdraw, and that he will qualify as such officer, if nominated and elected, and section 24, providing that the person receiving the highest number of votes at a primary as the candidate for the nomination of a political party shall be placed on the official ballot, and section 27, providing that vacancies occurring after a primary shall be filled by the party committee, one nominated at a primary election as the candidate of a political party for a public office cannot have his name omitted from the general election ballot, though he has since the primary became incapacitated from making an active campaign.\\n8. Elections \\u2014 Primary Nominations \\u2014 Withdrawal oe Nominee\\u2014 Statutes' \\u2014 Repeal.\\nTlie primary -law (Stats. 1908r09, c. 198), Laving made a radical change in the manner of making nominations for election, the provisions therein which preclude the withdrawal of a candidate after nomination supersede any provisions in earlier statutes permitting officers to resign, even if a candidate after nomination and before election were an officer within such former statutes.\\nNorcross, C. J., dissenting.\\nAppeal from the District Court of the Seventh Judicial District of the State of Nevada, Esmeralda County; Peter J. Somers, Judge.\\nMandamus by the State, on the relation of J. P. Donnelley, as Chairman of the Republican County Central Committee of Esmeralda County, against Joseph Hamilton, as County Clerk of the county, to direct the removal \\u25a0'of the name of a candidate from the official ballot. From an order granting relief, defendant appeals.\\nReversed.\\nThe facts sufficiently appear in the opinion.\\nJames Redington and Horatio Ailing, for Appellant.\\nJ. F. Douglas and Frank J. Hangs, for Relator.\", \"word_count\": \"5993\", \"char_count\": \"35017\", \"text\": \"By the Court,\\nTalbot, J.:\\nThe question presented relates to the right of the nominee of a political party to have his name withdrawn or omitted from the general election ballot after he has been regularly nominated by a majority of the voters of his party. T. V. Eddy was so nominated at the late primary election as a candidate of the Republican party, to be voted for at the general election to be held next Tuesday, for the office of district judge of the Seventh Judicial District, comprising Esmeralda County. Having become incapacitated by inflammatory rheumatism from making an active campaign, temporarily at least, for he is now able to be delivering political addresses, he sent to the secretary of state and to the county clerk a resignation or communication, which was approved by the Republican county central committee of that county, directing the withdrawal of his name from the list of candidates to be placed upon the ballot to be used at the general election. The appeal is from an order of the district court obtained by petitioner, acting as chairman of the Republican county central committee, directing the removal of the name from the official ballot and from the list of nominees being published in the newspapers.\\nThe learned district judge took a humane view of the case, and was of the opinion that, \\\"where the party realized that his condition of health was such that he was unable to make either a campaign for himself or a campaign in assistance of the party, it would seem that he not only could resign, but that it was his duty, as occurred to Col. Eddy from the letter presented to the Republican committee,\\\" and that \\\"the affidavit that he would not resign is a requirement of a declaration of fealty to the party on the part of those receiving at its hands a nomination.\\\" We think these are considerations of policy or expediency for the legislature, and not for the courts, and that the answer to the question presented depends upon the act and intention of the legislature. If, under the language or policy of the statute providing for primary elections (Stats. 1908-09, c. 198), it appears that the legislature intended to prevent the withdrawal from the ticket of candidates after they had been nominated by the majority of the voters of the party, the court cannot modify the statute and make any exception, and allow candidates to withdraw under particular circumstances or for deserving reasons when the legislature has intended to prohibit withdrawals and has not made any exception for special cases in which they-may be allowed.\\nThe statute requires, by section 5, subd. 4, that each candidate upon filing his nomination papers make an affidavit stating, among other things, that he is a duly qualified elector, \\\"and that if nominated he will accept such nomination and not withdraw, and that he will qualify as such officer if nominated and elected.\\\" The candidate had filed that affidavit with his nomination papers preliminary to having his name placed upon the primary ballot, and he received a majority of the votes of his party at the primary election. It is provided in section 24 of the primary act (Stats. 1908-09, c. 198) that: \\\"The person receiving the highest number (of votes) at a primary election as the candidate for the nomination of a political party for an office shall be the candidate of the party for such office, and his name as such candidate shall be placed on the official ballot voted at the ensuing election. \\\"\\nSection 27 provides: \\\"Vacancies occurring after the holding of any primary election shall be filled by the party committee of the city, county, city and county, district and state, as the case may be.\\\" There is no provision in the act in relation to withdrawals, except the one to which we have referred, by which it is required to be stated in the affidavit of the. candidate filed with the nominating papers that if he is nominated he will accept such nomination and not withdraw.\\nThe intention of the legislature controls the courts in the construction of statutes. (State v. Ross, 20 Nev. 61; Thorpe v. Schooling, 7 Nev. 15; Maynard v. Newman, 1 Nev. 271.)\\nIt has also been held that it is the duty of the court to ascertain what the legislature had in view in adopting a statute, in order to secure, if possible, the object intended by the legislature. (Odd Fellows' Bank v. Quillen, 11 Nev. 109; State v. Ross, 20 Nev. 61; State v. Dayton & V. & T. R. Co., 10 Nev. 155.)\\nIn Brown v. Davis, 1 Nev. 409, it was held that in interpreting doubtful statutes the primary object is to ascertain the intention of the legislature, and that this intention is to be gathered from the language used and from the mischiefs intended to be suppressed or the benefits to be attained.\\nIn Roney v. Buckland, 4 Nev. 45, it was held that in the interpretation of a statute the ultimate purpose is to be considered, and every sentence or section should be interpreted with reference to the general object and with a view of giving it full and complete effect and to extend to all its parts logical and legal results. It has also been held that no part of a statute should be rendered nugatory if this can be properly avoided. (Torreyson v. Board of Examiners, 7 Nev. 19.)\\nAnother well-settled rule of construction is that, where one section of a statute treats specifically of a matter, it will prevail over other sections in which incidental or general reference is made to the same matter. (Long v. Culp, 14 Kan. 412; State v. Commissioner, 37 N. J. Law, 228.)\\nIt is said, at sections 157, 158, in Sutherland on Statutory Construction: \\\"When the legislator frames a statute in general terms or treats a subject in a general manner, it is not reasonable to suppose that he intends to abrogate particular legislation to the details of which he had previously given his attention, applicable only to a part of of the same subject, unless the general act' shows a plain intention to do so. Where there is in one act, or several contemporaneously passed, specific provisions relating to a particular subject, they will govern in respect to that subject as against general provisions contained in the same acts.\\\"\\nIf by implication section 27, providing for the filling of vacancies, could, if there was no other provision in the act relating to withdrawals, be held in a general way to include vacancies occurring by the withdrawal of a candidate when the kind of vacancies to be filled, whether occurring by death or otherwise, is not stated, still the provision would be a general one and would be modified and controlled by the special one by which it is apparent that the legislature intended to prohibit the withdrawal of a candidate after he had been nominated by a majority of the votes of his party.\\nCounsel for petitioner urges that the candidate may withdraw because it is nowhere directly stated in the act that the petitioner may not withdraw. It is often held that the purpose and spirit of an act will control the letter, but the wording and requirements of this statute indicate the intention of the legislature. In the absence of any direct statement that he may or may not withdraw, we feel limited to a construction of the provision that the candidate shall state in the affidavit \\\"that if nominated he will accept such nomination and will not withdraw.\\\" The requirement of such a declaration by the candidate, regardless of whether it must be made under oath, indicates that the legislature intended that he should not be allowed to' withdraw, and that he should keep and not repudiate the obligation exacted, for surely, if it were intended that he should be allowed to withdraw, and the legislature made any reference in the act to withdrawals, we must conclude that, instead of requiring an affidavit from the candidate that he would not withdraw, a provision would have been inserted allowing such withdrawal, or, if it were intended only to require a moral obligation or one to show good faith, the candidate would be required to make oath that he did not intend to withdraw, leaving him free to change his mind and withdraw. The statute requires the candidate to state in the affidavit \\\"that he affiliated with said party at the last preceding general election, and either that he did not vote thereat or voted for a maj ority of the candidates of said party at said next preceding general election, and intends to so vote at the ensuing election, and that if nominated he will accept such nomination and not withdraw.\\\" As he need state only his intention as to how he shall vote, but must swear positively that he will not withdraw, a distinction is clearly expressed, and it is evident that the legislature intended to require not only a statement of his intention as to how he will vote, but an unconditional and continuing assurance that he will not withdraw. This means even more than would a bare statement in the statute that the candidate shall not be allowed to withdraw, for it is reinforced by the requirement of an agreement under oath on his part, and this sworn obligation not to withdraw amounts to more than a mere promise that he will not have his name taken from the ticket. To hold that the requirement in the affidavit of the candidate that he will not withdraw implies that he may withdraw would be as inconsistent, and as contrary to the apparent purpose of the statute, as to hold that by providing that a witness shall take an oath to tell the truth, it was not intended by the legislature that he should be required to tell the truth. We cannot discredit the legislature with the belief that the obligation was imposed with the intention of having it regarded only as a moral promise, without legal effect, to be lightly ignored by the candidate as he might desire, and at his instance by the courts. We must assume that our lawmakers, selected by popular vote as representative citizens, are honest and high-minded men, and that they do not purposely waste the time of the legislative session in passing idle, useless, or noneffective enactments, and that they would not impose such an obligation upon candidates for office without an intention of having it observed. It is evident that this provision was inserted in the law for a beneficial purpose, and so that a candidate would not be allowed to trifle with the public or the voters of his party by withdrawing after he had voluntarily become a candidate and received a majority of the votes, and the state had been to the expense of a primary or other election.\\nWhether this affidavit of the candidate that he will not withdraw amounts to an estoppel because by making it he obtained the printing of his name on the ballot and a majority of the votes of his party at the primary election, and the incurrence of the expense of the primary election, including publishing, printing of ballots, canvassing and certifying returns, which pertained to him, and whether the agreement he made under oath may be legally enforced so as to compel him to act affirmatively, need not be determined for the purposes of this case.\\nThe secretary of state has certified to the county clerk that he received a majority of the votes at the primary election as the candidate of his party for the office, and the clerk is following the direction in the statute that he place the name upon the ballot to be voted at the general election. The petitioner is seeking to have the court compel the clerk to omit the candidate's name from the ballot. If, as contended by counsel, the taking of the oath not to withdraw were only a moral obligation, without legal force, and the committee of his political party is consenting and -desiring that he be allowed to withdraw, nevertheless the withdrawal in law would be based upon the act and consent of the candidate, and if allowed at all it would clearly be a breach of a sacred obligation to himself and the public, and upon well-recognized legal and equitable principles the courts cannot aid him,'nor any one who is seeking to assist him, in breaking his promise or agreement by ordering the clerk to omit his name from the ballot.\\nWhether, instead of requiring the affidavit, it would have been better for the legislature to have allowed candidates to withdraw after they had become nominated by receiving a majority of the votes of their party when by reason of accident, sickness, or other causes they become incapacitated after nomination to make the campaign or to fill the office, is a matter of policy for the legislature. We cannot lend assistance to the candidate or the petitioner in violating the obligation taken as required by the legislature because we may believe that it would be desirable to allow candidates to withdraw under exceptional or deserving circumstances, for the duty of the court is to construe these provisions of the statute as we find them. Otherwise we may usurp legislative functions.\\nChief Justice Waite, speaking for the court in Sinking, Fund Cases, 99 U. S. 700, 718, 25 L. Ed. 496, said: \\\"One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule. See, also, Fletcher v. Peck, 6 Cranch, 87-128, 3 L. Ed. 162; Dartmouth College v. Woodward, 4 Wheat. 518-625, 4 L. Ed. 629; Livingston County v. Darlington, 101 U. S. 407, 25 L. Ed. 1015. It is not a part of their functions to conduct investigations of facts entering into questions of public policy, merely, and to sustain or frustrate the legislative will embodied in statutes, as they may happen to approve or disapprove its determination of such questions. If all that can be said of this legislation is that it is unwise or unnecessarily oppressive, their appeal must be to the legislature or to the ballot box, not to the judiciary. The latter cannot interfere without usurping powers committed to another branch of government.\\\" (Ex Parte Kair, 28 Nev. 146.)\\nAt the common law, which we have adopted, and which prevails in this state except as specially abrogated or where unsuitable to our conditions, a citizen could be required to perform the duties of an office. We have an earlier statute allowing officers to resign; but a candidate is not an officer, and, if he were, this provision of the later act of the legislature, passed for the purpose of prohibiting candidates from withdrawing after they have voluntarily taken the oath not to withdraw, would control the earlier statute, and any former ones relating to vacancies or withdrawals from the ticket. The scope of the new primary act indicates that the legislature intended to make a radical change in the methods by which nominees for public office are to be placed on the general election ballot. Instead of being selected by a comparatively few individuals, comprising a convention or a committee, they are now to be chosen by a maj ority of the votes of their party, cast in the booth, free from any undue influence. (Piter v. Douglass, 32 Nev. 400.)\\nDifferent provisions of the act strengthen the inference that when nominees are so chosen they are to remain upon the ticket in compliance with their oath not to withdraw, and that it was not the intention of the legislature to have them break this obligation by withdrawing and thereby allowing a committee to appoint nominees different from the ones selected by a majority of the votes of the party. If we should hold that one candidate may withdraw after taking the oath, all others would have the privilege of withdrawing unless we legislate special exceptions into the statute when it contains none, and the legislative provision for this oath would become useless and in effect nullified by the court.\\nThe case of O'Connor v. Smithers, 45 Colo. 23, 99 Pac. 46, presented by the petitioner, depended upon provisions of the Colorado statute specifically requiring the filing of an acceptance or declination by candidates. Other cases cited by petitioner are also based upon provisions different from any in force in this state.\\nWith only one day for this decision, we \\u00e1re not able to give the case as extended consideration as desired; but, from the conclusions stated, it is apparent that it is not necessary to review any other questions argued.\\nThe order of the district court is reversed.\\nSweeney, J.: I concur.\"}"

nev/4612173.json

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+"{\"id\": \"4612173\", \"name\": \"Ex Parte PITTMAN\", \"name_abbreviation\": \"Ex parte Pittman\", \"decision_date\": \"1909-01\", \"docket_number\": \"No. 1790\", \"first_page\": 56, \"last_page\": 57, \"citations\": \"31 Nev. 56\", \"volume\": \"31\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T21:26:51.730200+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ex Parte PITTMAN\", \"head_matter\": \"[No. 1790]\\nEx Parte PITTMAN\\nOriginal proceeding. Application by W. B. Pittman, on behalf of T. B. Rickey, for a writ of habeas corpus.\\nPrisoner remanded.\\nThe facts sufficiently appear in the opinion.\\nJames F. Peck and W. B. Pittman, for Petitioner.\\nR. Q. Stoddard, Attorney-General, L. B. Fowler, Deputy Attorney-General, and P. A. McCa,rran and E. E. Roberts, District Attorneys, for the State.\", \"word_count\": \"294\", \"char_count\": \"1719\", \"text\": \"By the Court,\\nNorcross, C. J.:\\nThis is an original proceeding in habeas corpus. From the return upon the writ heretofore issued it appears that the said T. B. Rickey was at the time of its issuance held in custody by the sheriff of Esmeralda County upon a bench warrant duly issued by the First Judicial District Court of the State of Nevada in and for Esmeralda County upon an indictment found by the grand jury of said county, charging the said T. B. Rickey with a felony, to wit, the crime of embezzlement, contrary to the provisions of that certain act of the leg islature, entitled \\\"An act making any banker, or any officer, agent or clerk of any bank, receiving deposits, knowing that said bank is insolvent, guilty of embezzlement, and providing for the punishment thereof,\\\" approved March 29, 1907. (Stats. 1907, p. 414, c.189.)\\nThe question presented in this proceeding, to wit, the constitutionality of the above-entitled act, is identical with that involved in the case similarly entitled (No. 1795), this day decided.\\nFor the reasons stated in the opinion in the case last mentioned, no valid reason appears for the discharge of the said T. B. Rickey.\\nWherefore, it is ordered that he be remanded to the custody of the sheriff of Esmeralda County upon his release from custody by the sheriff of Ormsby County..\"}"

nev/4636389.json

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+"{\"id\": \"4636389\", \"name\": \"GEORGE M. HOLMES, Respondent, v. IOWA MINING COMPANY, a Corporation, Appellant\", \"name_abbreviation\": \"Holmes v. Iowa Mining Co.\", \"decision_date\": \"1895-10\", \"docket_number\": \"No. 1435\", \"first_page\": 23, \"last_page\": 24, \"citations\": \"23 Nev. 23\", \"volume\": \"23\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T22:45:34.602023+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE M. HOLMES, Respondent, v. IOWA MINING COMPANY, a Corporation, Appellant.\", \"head_matter\": \"[No. 1435.]\\nGEORGE M. HOLMES, Respondent, v. IOWA MINING COMPANY, a Corporation, Appellant.\\nAppeal \\u2014 Teansoript\\u2014Original Pap\\u00faes. \\u2014 Where, instead of a regular transcript, the original papers are sent up on the appeal, under Stats. 1895, 58, they must he certified to he such originals, and to constitute, in whole or in part, the record on appeal. Where there is no certificate to that effect, the appeal will, upon motion, be dismissed. (Syllabus by Bigelow, G. J.)\\nAppeal from tbe First Judicial District Court, Storeycounty; Richard Rising, District Judge:\\nAction by George M. Holmes against tbe Iowa Mining Company. From the judgment rendered, defendant appeals. Heard on motion to dismiss.\\nGranted.\\nTbe facts appear in tbe opinion.\\nHenry K. Mitchell, for Appellant.\\nF. M. Huffaker, for Respondent.\", \"word_count\": \"416\", \"char_count\": \"2440\", \"text\": \"By the Court,\\nBigelow, C. J.:\\nTbe respondent moves to dismiss the appeal upon tbe ground that the record is not certified or authenticated as required by law. It consists of the original papers as authorized by Stats. 1895, 58. That act provides that when the appellant desires to have the original papers sent to the supreme court, they shall be \\\" certified by the clerk of the district court, or by the respective parties or their attorneys, to be such originals, or to constitute in whole or in part the record on appeal.\\\"\\nSeveral of the papers in the case are not certified in any manner either as copies or originals, and none of them are certified to constitute in whole or in part, the record on appeal. The motion must, therefore, be granted. This is a defect that doubtless could have been reme'died; but, although the motion was made more than two months ago, and thereby the appellant's attention particularly called to the matter, no attempt has been made to do so.\\nObjection is also made to the manner in which a question upon a motion to set aside a sheriff's sale is sought to be presented, and although unnecessary to notice the point upon this appeal, it is not improper to call attention to the fact that the statute mentioned has in no wise altered the method of presenting questions to the supreme court. Wherever a motion for new trial, or a statement on appeal, was previously necessary to their proper presentation, it is still necessary. The only difference is that, instead of having to present a transcript of the papers to be used on the appeal, the originals may now be certified up.\\nThe appeal is dismissed.\"}"

nev/4637723.json

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+"{\"id\": \"4637723\", \"name\": \"A. LAIRD, Appellant, v. MICHAEL MORRIS, Respondent\", \"name_abbreviation\": \"Laird v. Morris\", \"decision_date\": \"1895-10\", \"docket_number\": \"No. 1438\", \"first_page\": 34, \"last_page\": 39, \"citations\": \"23 Nev. 34\", \"volume\": \"23\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T22:45:34.602023+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"A. LAIRD, Appellant, v. MICHAEL MORRIS, Respondent.\", \"head_matter\": \"[No. 1438.]\\nA. LAIRD, Appellant, v. MICHAEL MORRIS, Respondent.\\nPractice \\u2014 Judgment oe Nun-Suit No Bar to Another Action. \\u2014 Section 3173, Gen. Stats. (Civil Practice Act, sec. 151), does not change the inflexible rule that a.judgment of non-suit-is not a judgment on the merits, and .such, judgment of non-suit is no bftr to another suit upon the same cause of action\\nIdem \\u2014 Non-Suit\\u2014Statute Construed. \\u2014 The only purpose of the statute (Civil Practice'Act, sec: 151) was to- determine in what cases non-suits or dismissals should -hft entered., , The-statu-te is in affirmance-of the common law, anil, though, .by..consolidation, of sections it. is subject to criticism for uncertainty, the. presumption is that no change was intended-in the law.\\nAppeal from th,e District Court of. the State .of .Nevada, Eureka county; .A,, L. Fitzgerald,.District.Judge: ,, ,\\nAction by-A. Laird against Michael Morris on an account stated-and, on-, an assigned-account for services rendered. Judgment-for defendant.- Plaintiff appeals.-\\nReversed.\\nThe facts sufficiently appear in the\\u2018opinion.-::-\\nHenry Fives, for Appellant: - .\\nThe only question -raised; on:this appeal, is-as to whether the court erred in, deciding that:-the; dismissal - of;, the-first action .amounted to a trial on the merits.- r All of .the-;allegations of.:the: complaint in- that action were fully denied by the answer, and thus distinct - issues were presented to the, court for determination. - Bef.ore-.the court could determine these issues, some kind of proof -must have been presented.-\\nIn this .case, however, there is no; pretense, -that any oral or documentary evidence, \\u25a0 -whatever in .support -of,-- or against, the issues involved were! introduced- -The dismissal -Of that action was simply;>a non-suit granted by-the court at the-' request.of the defendant,-and; while -it' e\\u00f3-operated as a-final -\\u2022 judgment and determination of that\\u2019ease, it-was no.t--under.---< - the circumstances ajudgment upon the merits.\\u201d- - It Simply \\u2022 . operated-as putting an end-to that-particular'Gas.e;-and-in no way operated as a'bar to another suit-on the same cause of.....-! action. (1 Nev. 495; Storey\\u2019s .Eq-. PL, 9th ed.,' sec. 793; 42'-'\\u2019-Cal. 644; 21 Am. & Eng. Ency. of -Law, 266>-e\\u00ed seq. and note -- 1; 5 Id.- 496; 16 Id. 747-48 and-note-'l; 18 Id. 730,'note-2 and-' -\\u25a0-\\u25a0 \\u2019 cases cited; Freema-n on-Judg., sec;-261;. 1 Greenleaf-on Ev-.-, sec. 528; 36 111: 278; 88Tnd,155; 34- Barberil;- 2 Smith\\u2019s-- '< Leading Cases, 887; 12 Arh. 369; 49-Iowa, 528; 113 Mass. \\u25a0> '\\u2022 - - 231; 108 Mass. 309; 7 Wall. U. S. 107; 117 111. 471; 101 U, S. 688.)\\nThomas. Wren and Peter- Preen, \\u2022 for ,Responden!; (,\\nI. To understand the legal bearings- Of the dt\\u00e9misSa-1 -Of- -' the first-aotion- it will be necessary to-give-a--brief history \\u00a1\\u00a9f-- -! these -sections of our .practice act- providing- for- dismissals-.1 - - \\u2022 \\u25a0 The sections of our act upon this subject were originally' adopted bodily, word for word, from the - sections- upon the - same subject in the'\\u00bbCalifornia practice act as-they stood in- \\u2014 \\u2019 1861-2 'and-later, \\u00a1Stats, 'of- Cal., Practice Act, secs. 143-9, - 11 Stats, of Nev., 1861, pv 338, sees. 148-9. A number-of -decig-1 \\u25a0 ions were rendered- by-the supreme court -of - California :updn......these sections--of the California practice -act, and -in this state, \\u2022 in the-case of Shermati v-. Dilby, 3 Nev., a--decision %as ren- -\\u2022 dered by the supreme-court of this'state that, as the statute \\u2022 - then stood, is a stronger case in favor of appellant than the- -\\u2022 1 \\u2022 one cited by counsel -for appellant in 1 Nev. -It- will be'1 observed that there were two sections of the statute of thisJ \\u2022 1 - state in regard to dismissals- for a number- of years. : In 1869 our present, practice act w-as amended and-materially Changed - \\u2022 in many respects, and amohgst -others- the-twO sections-here- -- - tofore existing-were repealed and the provisions in-regard to \\u25a0 the dismissal- of actions -were embodied in one section,-and - -C the effect of -a -dismissal, where a: plaintiff fails to -appear -at - * the time set for the trial of - an action, was radically changed,- <\\u2022 \\u2022 1 (Gen. Stats. Nev., 3173.) '\\nBy this section as it now stands, the third subdivision of the same provides that an action may be dismissed by the court \\u201c when the plaintiff fails to appear on the trial and the defendant appears and asks for the dismissal. * * * The dismissal mentioned in the first two subdivisions shall be made by an entry on the clerk\\u2019s register. Judgment may thereupon be entered accordingly. In every other case the judgment shall be rendered on the merits.\\u201d\\nII. What is obviously the purpose of the change in the statute? It could have no possible object except to compel diligence on the part of plaintiffs in the prosecution of suits. It is to prevent defendants from being harassed with a multude of suits upon the same cause of action.\", \"word_count\": \"1754\", \"char_count\": \"11055\", \"text\": \"By the Court,\\nBelknap, J.:\\nPlaintiff sued defendant as surviving partner upon two counts: First, upon an account stated; second, upon an assigned account for services rendered to the partnership. Respondent, in his answer, among other things, plead in bar a former judgment between the same parties and for the same cause of action.\\nThe cause was tried by the court. It was shown by the judgment that neither the plaintiff nor his counsel was present at the former trial and that thereupon the defendant asked for a dismissal of .the action. A judgment of dismissal was accordingly given and costs taxed to the plaintiff. Upon this evidence the court found as a fact that the judgment was upon the merits, and as a conclusion of law it was found that it constituted a bar to the plaintiff's recovery in the present action.\\nThe question upon the appeal is whether the ruling was correct.\\nThe statute governing the subject is as follows:\\n\\\" 3173. Sec. 151. An action may be dismissed, or a judgment of non-suit entered in the following cases:\\n\\\" First \\u2014 -By the plaintiff himself at any time before trial, upon the payment of costs, if a counter claim has not been made. If a provisional remedy has been allowed, the undertaking shall thereupon be delivered by the clerk to the defendant, who may have his action thereon.\\n\\\" Second \\u2014 By either party upon the written consent of the other.\\n\\\" Third \\u2014 By the court when the plaintiff fails to appear on the trial, and defendant appears and asks for the dismissal.\\n\\\" Fourth \\u2014 By the court when upon trial, and before the final submission of the case the plaintiff abandons it.\\n\\\" Fifth \\u2014 By the court upon motion of the defendant when upon the trial the plaintiff fails to prove a sufficient case for the jury.\\n\\\"The dismissal mentioned in the first two subdivisions shall be made by an entry in the clerk's register. Judgment may thereupon be entered accordingly. In every other case the-judgment shall be rendered on the merits.\\\"\\nIn support of the ruling, it is said, that the practice act as originally adopted 'in 1861 (Stats. 1861, p. 338), was readopted in 1869 (Stats. 1869, p. 218), and upon its readoption was materially changed. The two sections upon the subject of dismissal and judgments of non-suit in the act of 1861 were consolidated and the effect of the change was, it is claimed, that all cases falling under the third, fourth and fifth subdivisions of the statute became judgments on the merits and not of dismissal or non-suit as theretofore; that the mention of the first two subdivisions in connection with the concluding sentence of the section: \\\"In every other case the judgment shall be rendered on the merits,\\\" excludes, by implication, all of the remaining cases provided for.\\n\\\"A non-suit is the result of an abrupt termination of an action at law. It is the name of a judgment given against the plaintiff when he is unable to prove his case or when he refuses or neglects to proceed with the trial of a cause after it has been put on issue, without determining such issue. Its origin can be easily traced to a very early period in the history of the common law.\\\" (16 Am. and Eng. Ency. of Law, 721.)\\n\\\" The effect of a non-suit is to defeat the action, and give costs to the defendant, but the plaintiff may commence a new action for the same cause.\\\" (3 Bl. Com. 377.)\\n\\\" It is a settled and inflexible rule that a judgment of non-suit is not a judgment on the merits, and therefore is no har i 'o to 'another'-suit upon the sa/m-e* caus\\u00e9 \\u00a1of1 action-.;?;i (Black on Judgments, sec. 699.)\\nThe \\u00a1legislature--is presumed'to have used these terms in their accepted meaning.\\n'i ,. f'The-only!purpose-of-the'Statute w'\\u00e1s t'\\u00f3'deterffi-i\\u00f1e in what cases-- non-suits hi1' dismissals-should be entered; and in con- ,\\u00a1.. struing it,- this purpose5'should be[kept*in view.-- Five - separ- - - ate \\u00a1and'-independent causes have been-*'enumerated,' aii-d it is applicable to all cases to which these conditions \\\"apply. Otherwise, only1 eases'-provided' for in-the -'first-'\\u00e1hd second -subdivisions--would-be embraced-' within! its'provisions, and - those -in--the-third,-fourth arid fifth subdivisions would be excluded-.' Such construction-would \\u00a1do'-violence*-'to 'the lan-guage'of- :the statute-and defeat thei rdanifest\\\"intent of the legislature.\\\"''It would subordinate- th\\u00e9' principal purpose of * '-the'-statu-te-to one*Of lesser-importance.\\n'\\u2022The consolidation*of the- two sections*'ihtoone'-worked no \\u00a1 -change in the purpose of 'the law1.* - The elder statute* was free - fcomrambiguity: \\u2022 The-consolidation'-subjects It* to \\u00a1the-criticism-which* has been-urged: * The*statute i*s-an-affirm-a-nce of -\\u2022* -theUGommOn law.- * The presumption is-that-'n\\u00f3'rCha\\u00f1ge was <-' intended-'in that law.- But -if such were- the -intention, it < 'would have been-made-free frdni uncertainty.\\n\\u2022 -The.-statute'should--be read as including'all \\\"of the five -classes*Of bases foi which-it-provides, and!-being*-so read its meaning-iS clear.\\nIn' Baker v. Baker, 13 Cal. 87, -the court said-:- \\\" The statute 0 .of this state), being in affirmance of the common-law,\\u00a1is to be : - construed--as: was -the' rule \\u00a1of 'that law1.5' This'is*-'a received construction 'in such cases. - -Thus, in Miles v. Williams, 1 Peere Wms. 252,the bourt said: 'The best rule of construing \\u00a1i -acts.of- -parliament is by the-common law,\\u00e1ndby-the course c, -.'which-that -observed in like cases of its own before'the act.' And, in Arthur v. Bokenman, 11 Mod. 150, the' common pleas said: The general rule in exposition of \\u00a1all acts!6f'parliament is this: That in all-doubtful- matters)and when the expression is'iif gen\\u00e9ral terms/theyare-to receive-such-a construcfionuas may*be*-agreeabl\\u00e9\\\"to the rules1 of-the-common law*in cases-of'-that naturey* for-statutes1 are not-presumed to make any alterations in the common law, further or other wise than \\\"the act-does 'expressly'declare; therefore, in all general matters, the law presumes the act \\\"did hot \\\"intend to make any-alteration; for,:if the parliament -had ffia'd that -design, they would have'expressed-it in' the act.' \\\"\\n' - Judgment is'reversed and- cause* remanded.\"}"

nev/4638773.json

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+"{\"id\": \"4638773\", \"name\": \"THE STATE OF NEVADA, Respondent, v. CHARLES MURPHY, JOHN CHIATOVICH and WILLIAM A. INGALLS, Appellants\", \"name_abbreviation\": \"State v. Murphy\", \"decision_date\": \"1897-04\", \"docket_number\": \"No. 1489\", \"first_page\": 390, \"last_page\": 403, \"citations\": \"23 Nev. 390\", \"volume\": \"23\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T22:45:34.602023+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE STATE OF NEVADA, Respondent, v. CHARLES MURPHY, JOHN CHIATOVICH and WILLIAM A. INGALLS, Appellants.\", \"head_matter\": \"[No. 1489.]\\nTHE STATE OF NEVADA, Respondent, v. CHARLES MURPHY, JOHN CHIATOVICH and WILLIAM A. INGALLS, Appellants.\\nCriminal Law \\u2014 Courts Judicially Know Whisky to Be a Spirituous Liquor \\u2014 Statute Complied Witi-i. \\u2014 The designation of an offense in a complaint and recognizance as \\u201c selling whisky to an Indian \\u201d sufficiently complies with the statute which makes it an offense to \\u201csell, barter, give or in anyway dispose of any spirituous or malt liquor, wine or cider of any description to an Indian within this state\\u201d (Stats. 1887, 37), it being within the judicial knowledge of courts that whisky is a spirituous liquor.\\nStatute of Limitations \\u2014 Bail Bond, an Instrument in Writing \\u2014 Action on Barred in Six Years. \\u2014 An action upon a bail bond is an action upon an obligation founded upon an instrument in writing, and is not an action upon a statute for a forfeiture or penalty to the state which must be commenced within two years after the right of action has accrued. The right of action is, therefore, barred by the six-year clause of our statute.\\nRecognizance \\u2014 Bail Bond \\u2014 Time\\u2014Place and' Court, Nixed by Law. \\u2014 A contention that a recognizance is void for the reason that no time, place or court is named therein is not tenable, as the law designates the time, place and court in which the defendant must appear and surrender himself in execution of the judgment.\\nFiling of Recognizance \\u2014 Record of Court. \\u2014 Where the transcript on appeal shows that the recognizance was made a record by order of the court, and the complaint avers that it was filed, a contention that the recognizance is void, for the reason that it was never filed or became a record in the cause or court, is not tenable.\\nCriminal Law \\u2014 Practice\\u2014Recognizance or Bail Bond, How and When Forfeited. \\u2014 Section 523 of the criminal practice act (Gen. Stats. 4403) provides when and in what manner a forfeiture of a recognizance shall be taken. It provides that \\u201cif, without sufficient excuse, the defendant neglect to appear for arraignment, or for trial or judg'ment, or upon any other occasion, when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court shall direct the fact to be entered upon its minutes, and the recognizance * * * shall thereupon be declared forfeited.\\u201d This provision of the statute is mandatory. It does not require that the record must show that the defendant was called, neither is it necessary thereunder that the defendant should be called.\\nIdem \\u2014 Defective Record \\u2014 Forfeiture of Bail Bond. \\u2014 A record reading as follows: \\u201c N ow, on motion of the district attorney, it is ordered that the bonds of Charles Murphy be and they are hereby declared forfeited,\\u201d is fatally defective in not showing the fact that the defendant neglected to appear upon some one of the occasions designated in said section 523 of the criminal practice act.\\nIdem \\u2014 Practice\\u2014Stay of Execution \\u2014 Recognizance Given Before Appeal Taken. \\u2014 The trial court has no authority to make an order staying the execution of a judgment of imprisonment, and no authority to release or order the release of a defendant, under recognizance, or otherwise, after judgment of imprisonment has been rendered against him, except after an appeal therefrom has been taken, and any recognizance given for that purpose at such a time is void.\\nIdem \\u2014 Appeal\\u2014Stay of Execution. \\u2014 An appeal from a judgment of imprisonment does not operate as a stay of execution thereof, and the defendant, if in custody, must so continue, unless admitted to bail.\\nAppeal from tbe District Court of the State of Nevada, Esmeralda county; Q. E. Mack, District Judge:\\nAction by the State against Charles Murphy, John Chiatovich and William A. Ingalls on a recognizance of hail forfeited by Murphy. From a judgment in favor of plaintiff, defendants Chiatovich and Ingalls appeal.\\nReversed.\\nAction on a hail bond in the following words: \\u201cIn the District Court of the State of Nevada, in and for the County of Esmeralda. The State of Nevada, Plaintiff v. Charles Murphy, Defendant. An indictment having been found in the above-named court on the-day of-, 1891, and filed in the above-named court, 'charging the defendant above named with the crime of selling whisky to an Indian, and thereafter, he, the above-named defendant, was presented to said court, and entered his plea of not guilty of said offense charged in said indictment, and thereafter a jury was regularly impaneled, and the trial of said issue was had on the-day of June, 1891. Said jury impaneled as aforesaid returned a verdict of guilty of the offense charged in the indictment and as therein charged, and, whereas, the judgment of said court was regularly pronounced upon defendant, and a judgment of imprisonment was given, and the said defendant desiring to appeal said cause to the supreme court of the state of Nevada, and an order having been heretofore made admitting said defendant to bail in the sum of $3,000: Therefore, know all men by these presents, that we, Charles Murphy, defendant above named as principal, and John Chiatovich and W. A. Ingalls as sureties, are jointly, severally and firmly held to the state of Nevada, in the penal sum of $3,000. Sealed with our own seals and dated this 1st day of July, 1891. The condition of the above obligation is such that, whereas, the said defendant and principal herein has been indicted, convicted and the judgment of imprisonment given as aforesaid, and said defendant is about to appeal said cause as aforesaid, that the said defendant will surrender himself in execution of the judgment so as aforesaid entered upon its being affirmed, modified, or upon appeal being dismissed, and that defendant herein and principal will in all respects abide the order and judgment of the appellate court upon the appeal. Charles Murphy. In the sum of $3,000: John Chiatovich (Seal). In the sum of $3,000: W. A. Ingalls (Seal). [Here follows the qualifications of the sureties.] Endorsed: (after the entitlement of the court and cause) Bail Bond on Appeal. Approved this 3d day of July, 1891, and filed as a record of said court and cause. Richard Rising, district judge, presiding.\\u201d\\nThe additional facts appear in the opinion.\\nM. A. Murphy, Reddy, Campbell & Metson, for Appellants:\\nI. This action, being founded on a liability created by statute, is a statutory proceeding, and the plaintiff wishing to avail itself of the statutory privilege, or right given by particular facts, it must show the facts; those facts which the statute requires as the foundation of the right must he stated in the complaint. {Rhoda v. Alameda Co., 52 Cal. 352; Dye v. Dye, 11 Cal. 168.)\\nII. The court erred in overruling the demurrer to the complaint. The complaint alleges that \\u201cthe defendant, Charles Murphy, was found guilty of selling whisky to an Indian, and upon such conviction was sentenced to two years in the state prison.\\u201d The plaintiff cannot prevail in this action, by reason of the fact that there is no such offense known to the state of Nevada as that of selling whisky to an Indian. The crime intended to be charged is to be found on page 37, Statutes of 1887, and the word \\u201cwhisky\\u201d is not mentioned in the act.\\nIII. The complaint must allege, and the recognizance must state, the offense for which the accused is held. We do not claim that either one must state the circumstances under which the offense was committed,.or need it state all the facts necessary to constitute the offense, but it must describe the charge accurately and with reasonable certainty; the mere words \\u201c selling whisky to an Indian \\u201d is not the statement of a cause of action, or ,the designation of any offense known to our laws. (Hunt v. State, 34 S. W. 750; Couch v. State, 34 S. W. 942; Draughan v. State, 35 S. W. 667; 'Shoomaher v. State, 35 S. W. 969; Leach v. State, 34 S. W. 124; Whitehead v. State, 34 S. W. 115; State v. Jones, 3 La. Ann. 15; Foster et al. v. State, 27 Tex. 336; Baixey v. State, 30 S. W. 358; Loven v. State, 30 S. W. 358; West v. Commonwealth, 8 J. -7. Marshall\\u2019s Rep. 641.)\\nIV. The recognizance. or complaint does not state any public offense for which Murphy could be legally tried and convicted, and the recognizance is therefore void. {Com. v. Daggett, 16 Mass. 446; Nicholson v. State, 2 Ga. 363; Waters et al. v. People, 35 Pac. 56; People v. Sloper, 1 Idaho, 158.)\\nV. The recognizance does not conform to sections 4384 or 4391, Gen. Stats., or is it a substantial compliance with said sections. It has never been filed or become a record in said cause or court. The mere indorsement on the recognizance by the judge, of the words \\u201c approved this 8th day of July, 1891, and filed as a record of said court and cause,\\u201d without the signature of the clerk of the court, does not make a record of the court, and the signature of the judge is merely evidence of the fact that the recognizance has been approved by him. A recognizance derives its validity and effect from the fact that it is a judicial record, must be filed or recorded; it then becomes an obligation of record. (People v. Kane, 4 Denio, 535.)\\nVI. It is also defective in not mentioning any court, time or place for Murphy to appear and deliver himself to the custody of the court or officer thereof. (Williams et al. v. State, 12 Tex. 169; State v. Stephens, 2 Swan. (Tenn.) 308; State v. The Meltons, Busbee\\u2019s N. C. 426; State v. Houston, 74 N. C. 174; Wilson v. State, 7 Tex. 38.)\\nVII. Neither the court or any officer thereof was authorized to take bail at the time, or in the manner of its taking, by reason of the fact that the statute in no instance provides for the taking of bail after conviction and before an appeal is taken.\\nVIII. The recognizance under consideration was taken without authority of law. The judgment was not arrested or a new trial granted. Judgment had been pronounced, and the court had no power to stay the execution of the judgment until after the appeal had been taken. .No notice of appeal had ever been served on the clerk of the court or the district attorney, and it was the duty of the district attorney to have called the attention of the judge to the fact that no appeal had been taken. The recognizance was therefore taken when the court had no authority to act; and when taken by the judge or court without jurisdiction, or by any officer without authority, it is utterly void, and no subsequent act of the court or officer can validate it. (State v. Clark et al., 15 Ohio, 595; Powell v. State, 15 Ohio, 580; Deer Lodge County v. At, 3 Mont. 171; State v. Winnenger, 81 Ind. 53; Griffin v. State, 48 Ind. 258; Williams v. Shelby, 2 Or. 144; Dickinson et al. v. State, 29 N. W. Rep. 184; Bridge v. Ford, 4 Mass. 641; Com. v. Loveridge, 11 Mass. 336; People v. Koeber, 7 Hill. 39; Solomon v. People, 15 111. 291; Gachenheimer v. State, 28 Ind. 91; Blackman v. State, 12 Ind. 556.)\\nIX. To be valid a recognizance must be authorized, and must be taken in the mode prescribed by law. If a justice of the peace, judge or court assumes, without jurisdiction, to admit a prisoner to bail, or if, though authorized to admit to to bail, he exceeds his powers, or fails to comply with the requirements of law, the bond or recognizance is void, and neither the accused or sureties are liable thereon. It has no force or effect whatever. {Com. v. Loveridge, 11 Mass. 336; State v. McCoy, 57 Tenn. Ill; Com. v. Fisher, 2 Duvall\\u2019s Ky. 376; Dickenson v. State, 20 Neb. 72; State v. Kruise, 32 N. J. Law, 313; Bramham v. Com., 2 Bush. Ky. 3; State v. Nelson, 28 Mo. 13; Copper v. State, 23 Ark. 278; State v. Berry, 8 Greenl. Me. 179; Powell v. State, 15 Ohio, 579; Solomon v. State, 15 111. 291; Williams v. Shelby, 2 Or. 144.)\\nX. It is essential to the breach of the condition upon which the forfeiture is to arise that the party who is recognized to appear should be solemnly called before his default is entered, at. the time and place, when and where he was bound to appear, and it must appear upon the record of the court that he was called and failed to answer; and it must be plead and set forth in the complaint. It is not sufficient to aver and prove, aliunde, that the cognizor had in fact absconded, and did not intend to appear, and could not appear if he had been called; such evidence is not admissible to establish the fact of calling; it must be established by the record. {Dillingham v. U. S., 2 Wash. 427; State v. Chesley, 4 N. H. 363; Park v. State, 4 Ga. 329; Brown v. People, 24 111. App. 74; U. S. v. Rundlett, 2 Curtis R. 45; Bicknell\\u2019s Crim. Prac. 63; Urton v. State, 37 Ind. 339; Grigsly v. State, 3 Yerger\\u2019s R. Tenn. 280; 1 Chitty, Crim. Law, 106; Lingley v. State, 1 Blatchf. 559; White v. State, 5 Yerger\\u2019s R. Tenn. 183; Com. v. Downey, 9 Mass. 520.)\\nXI. This action cannot be maintained by plaintiff by reason of the fact that it is barred by the statute of limitations (Gen. Stats. 3644, 3648). The fourth paragraph of the fourth subdivision of section 3644 reads as follows: \\u201cAn action upon a statute for a forfeiture or penalty to the state.\\u201d {Johnson v. Eskins, 9 Tex. 1; Williams v. Shelby, 2 Or. 145; County Commissioners v. Slyck et al., 52 Kan. 622; Commissioners v. Pogg, 31 Kan. 767; Roe v. Commissioners, 40 Pac. 1082.)\\nGeo. S. Green, District Attorney, and James R. Judge, Attorney-General, for Respondent:\\nI. A judgment of a court of competent jurisdiction, until reversed or in some manner set aside and annulled, cannot be attacked collaterally by evidence tending to show that it was irregularly or improperly obtained, and especially is this true as to strangers to the particular action or proceeding in which the judgment was rendered. (Atkinson v. Allen, 12 Vt. 619; Eureka Iron Works v. Bresnahan, 32 N. W. Rep. 834; Vose v. Morton, 50 Am. Dec. 750; Rollins v. Henry, 78 N. C. 342.)\\nII. Appellants contend that the judgment from which the appeal herein is taken is against law, for the reason that the cause of action is barred by the statute of limitations of the state of Nevada. We are unable to agree with counsel on this point. Section 3644, Gen. Stats., provides: \\u201cActions, other than those for the recovery of real property, can only be commenced as follows: Within six years: First \\u2014 An action upon a judgment or decree of any court of the United States, or of any state or territory of the United States. Second \\u2014 An action upon a contract, obligation or liability founded upon an instrument in writing, except those mentioned in the preceding section.\\u201d Clearly the bond here sued on is an obligation and designated in the subdivision of section 3644 above quoted, entered into by appellants with the state of Nevada, for the payment to it of the amount therein named, to-wit: $3,000 in case the conditions therein provided to be performed on the part of the principal Murphy are not complied with, and being so, the judgment of the lower court is in all respects correct. (Placer Co. v. Dickinson, 45 Cal. 12; Clark v. Smith et al., 66 Cal. 645.)\", \"word_count\": \"5428\", \"char_count\": \"31108\", \"text\": \"By the Court,\\nMassey, J.:\\nThe respondent recovered a judgment against the appellants, Chiatovich and Ingalls, for $3,000, upon a forfeited recognizance, on the 21st day of December, 1896, in the district court of the first judicial district, state of Nevada, in and for Esmeralda county. Prom that judgment an appeal has been taken. A number of errors have been assigned, based upon the rulings of the lower court, nearly all of which involve the construction of the criminal practice act, relating to the taking and forfeiture of bail thereunder.\\nThe complaint avers that one Charles Murphy was tried and convicted of the crime of \\\" selling whisky to an Indian,\\\" in said district court, on the 23d day of June, 1891, and a judgment of imprisonment in the state prison for a term of two years was rendered against him therefor; that thereupon the said Murphy, expressing his intention to appeal from said judgment, moved the court for a stay of execution thereof and to admit him to hail; that the court granted a stay of execution of the said judgment for ten days, and ordered that he he admitted to bail in the sum of $3,000; that on the 3d day of July, 1891, the appellants made and delivered, and caused the same to be filed in said district court, the recognizance sued on, whereupon the said Murphy was released from custody; that at no time had the said Murphy obtained an order on appeal, or otherwise in any manner affecting said judgment; that the said Murphy had not surrendered himself to the custody of the said court or the officers thereof; that on the 7th day of.December, 1891, said court had duly made and entered an order declaring said bail forfeited, and that the same had not been paid.\\nA copy of the recognizance is attached to the complaint and made a part thereof, and recites the trial and conviction of said Murphy of the crime of \\\" selling whisky to an Indian,\\\" and the judgment of imprisonment'therefor; that the said Murphy had, before the making thereof, been ordered admitted to bail. It is conditioned that, as the said'defendant is about to appeal said cause, he will surrender himself in execution of the judgment, upon its being affirmed, modified, or upon appeal being dismissed, and that he will in all respects abide the order and judgment of the appellate court. The recognizance was, in part, endorsed: \\\"Approved this 3d day of July, 1891, and filed as a record of said court and cause. Richard Rising, district judge, presiding.\\\"\\nThe errors assigned, which will be considered by this court, arise from the rulings of the district court on the demurrers to the complaint and answer.'\\nAppellants contend that the complaint shows that Murphy was indicted, tried and convicted of an offense unknown to the laws of this state \\u2014 that the designation of the offense in the complaint and recognizance as \\\" selling whisky to an Indian \\\" is not a statement of a cause of action or a designation of any offense punishable under our laws, therefore no cause of action exists or is averred and the recognizance is void. We cannot so hold.\\nUnder the provisions of a statute of this state, in force at the time of the trial and conviction of the defendant, it was an offense to \\\" sell, barter, give, or in any manner dispose of any spirituous or malt liquors, wine or cider of any description to an Indian within this state.\\\" (Stats. 1887, 37.) By direct terms it was an offense to \\\" sell spirituous liquor to an Indian.\\\" It is well settled that courts will take judicial notice of the meaning of words which, from continuous use, have acquired a definite signification generally, if not univer-. sally, known. (Alder v. State, 55 Ala. 16; Watson v. State, 55 Ala. 158; Schlicht v. State, 56 Ind. 173.) The courts judicially know that whisky is a spirituous liquor. Section 504, criminal practice act (Gen. Stats. 4384), gives substantially the form of recognizance required, and this court, in State v. Birchim, discussing the same question, say that \\\" section 4968 of the laws of Iowa contains a form for recognizances similar to our section 504. It was held in the State v. Marshall, 21 Iowa, 143, where the principal was held to answer upon a charge of seduction, that the use of the word ' seduction ' in a bail bond was a sufficient compliance with the requirement of the statute to 'state briefly the nature of the offense.' The word 'nature' is defined by Webster as meaning ' sort, kind, character or species,' and we think this is the sense in which it is here used.\\\" (State v. Birchim, 9 Nev. 100.)\\nIn the case at bar, the requirements of the statute are sufficiently complied with in briefly stating the nature of the offense as \\\" selling whisky to an Indian,\\\" and the averments of the complaint to the same effect are also sufficient.\\nIt is further contended that the complaint shows that the right of action is barred by the statute of limitations, under the provisions of the clause therein requiring actions upon a statute for a forfeiture or penalty to the state to be commenced within two years after the right of action has accrued. Counsel for appellants have exhaustively and ably argued this question, but we cannot so hold. This is an action upon an obligation founded upon an instrument in writing, and the right of action thereon is barred by the six-year clause of our statute. (Gen. Stats. 3644.)\\nIt is true that the obligation is authorized by. statute, that it provides a penalty for its violation, and the right of action arises only upon a forfeiture thereof, yet without and apart from the written obligation, there is and could be no liability whatever on the part of the appellants. Their liability is founded upon and fixed by the obligation and, as upon other obligations, the right of the state to sue arises under a breach thereof. Counsel for the appellants cite Ryus v. Gruble, 31 Kan. 767, and Commissioners v. Van Slyck, 52 Kan. 625, in support of their contention.\\nThese causes involve the same question, and a careful examination clearly shows wherein they are distinguishable from the case at bar. The case of Ryus v. Gruble, supra, was an action upon a sheriff's bond. The alleged breach of duty, under which the sureties upon his bond became liable, was the levy of a void execution upon certain property, and making a sale thereunder. Under the Kansas statute action for this wrong was barred after two years, but it was there contended that the action being upon the sheriff's bond, it was not barred until five years had elapsed. The supreme court of Kansas, in passing upon this question, very correctly held that the wrongs committed by the sheriff in making the levy and sale were the real and substantial foundation of the plaintiff's cause of action, and that the bond was only a collateral security for the enforcement of such cause of action. The bond did not give the cause of action; the wrongs did. That court announces the same rule in Commissioners v. Van Slyck, supra.\\nIn the case at bar, the real and substantial foundation of the respondent's cause of action is the written obligation, and without that obligation no cause of action exists, and could not be maintained against the appellants.\\nIt is further contended, on behalf of appellants, that the complaint is not sufficient and the recognizance is void for the reason that no time, place or court is named therein, in which the defendant is required to appear.\\nThis contention is not tenable. Section 502 of the criminal practice act provides that after conviction, and upon an appeal, the defendant may be admitted to bail. \\\" Second \\u2014 If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed.\\\" (Gen. Stats. 4382.) Section 515 of the same act provides that the further conditions of the recognizance shall be to the effect that the defendant will, in all respects, abide the order and judgment of the appellate court upon the appeal. (Gen. Stats. 4395.) The recognizance is conditioned in nearly the exact language of the law, and the law designates the time, place and court in which the defendant must appear and surrender himself in execution of the judgment. See, also, sections 4368 to 4374 inclusive, Gen. Stats.; People v. Carpenter, 7 Cal. 402.\\nIt is .also argued that the recognizance is void for the reason that it was never filed or became a record of said cause or court. The complaint avers that it was filed. This averment was sufficient. (U. S. v. Eldredge, 5 Utah, 161.) It was made a record by the order of the court. (Trans., p. 28.)\\nTwo important questions are presented by the ruling of the district court whereby the respondent's demurrer to the answer to the second amended complaint was sustained. The answer, among other things, alleges that, at the time the order was made staying the execution of the judgment, no appeal had been taken from the judgment, and no appeal therefrom was pending; that at the time said recognizance was delivered, approved and accepted, no appeal was pending from said judgment, and no appeal therefrom has ever been taken. It further alleges that the defendant was never notified or requested to appear in said district court, on the 7th day of December, 1891, or at any other time; that he was never called at the court house door, or at any other place, to appear in said court. It also affirmatively alleges that the only record made of the forfeiture of the recognizance was as follows: \\\" Now, on motion of the district attorney, it is ordered that the bonds of Charles Murphy be and they are hereby declared forfeited.\\\"\\nIt is contended on behalf of the appellants that, before the recognizance could legally be declared forfeited, the defendant should have been called at the court house door, and the record of the proceedings should so show. This position cannot be sustained. Section 528 of the criminal practice act provides when and in what manner such forfeitures shall be taken. It provides that if, without sufficient excuse, the defendant neglect to appear for arraignment, or for trial or judgment, or upon any other occasion, when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court shall direct the fact to be entered upon its minutes, and the recognizance shall therefore be declared forfeited. (Gen. Stats. 4403.)\\nThis provision of the statute is mandatory. It does not \\u2022 require that the record show that the defendant was called, neither is it necessary thereunder that the defendant should be called.\\nIf the averments of the answer are true, and they must be so considered for the purpose of the demurrer, then it was error for the district court to hold the same insufficient, as it affirmatively is shown thereby that the only record of forfeiture made by the district court is the one above set out, and that record is fatally defective in not showing the fact that the defendant neglected to appear upon some one of the occasions designated in said section 523.\\nIt is further contended, on the part of the appellants, that the averments of the said answer that, at the time of the entry of the order staying the execution of the said judgment, no appeal therefrom had been taken or was pending, and that, at the time of the delivery, acceptance and approval of the recognizance, no appeal had been taken from said judgment or was pending therefrom, and that no appeal had ever been taken from the same, were a complete defense to the action, and that it was error of the district court in holding otherwise.\\nIn brief, the contention is, that the trial court had no authority to make an order staying the execution of a judgment of imprisonment and no authority to release or order the release of a defendant, under recognizance, or otherwise, after judgment of imprisonment had been rendered against him, except after an appeal therefrom had been taken, and, therefore, any recognizance given for that purpose and at such' time is void.\\nThis contention also involves a construction of our criminal practice act and must be sustained.\\nSection 451 of the criminal practice act provides that, \\\"when a judgment has been pronounced, a certified copy of the entry thereof in the minutes shall be forthwith furnished the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require the execution thereof, except when judgment of death is rendered.\\\" (Gen. Stats. 4331.)\\nSection 453 of the same act expressly provides that, if the judgment be imprisonment, the defendant shall forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with. (Gen. Stats. 4333.) We are unable to find any other provisions of the law bearing directly upon the time and manner of enforcing the judgment of the district court in cases of this character, or in any manner modifying the same, excepting such provisions as direct the enforcement of such judgment by order of the appellate court on appeal. No discretion is reposed in the district court as to the time its judgment shall become operative and enforcible, and any order thereof in contravention of the direct provisions of the statute above cited is without authority and void, and the release of the defendant, with or without bond, pursuant to such order is unwarranted, and any bond, recognizance or bail given for such release for the purpose of such order is without authority and void.\\nIf the recognizance was given for the purpose of appeal, as it evidently was, then, under the averments of the answer, would it be void? We must so hold.\\nBriefly, the provisions of the criminal practice act permit an appeal by the defendant in a criminal action to the supreme court from a final judgment of the district court within three months after the judgment is rendered, by the service of notice on the clerk of the court and the district attorney stating, in effect, that the appellant appeals therefrom. (Gen. Stats. 4349-4356.)\\nIt is also provided that, upon the appeal being taken, the clerk with whom the notice of appeal is filed must, within ten days thereafter, without charge, prepare and transmit to the clerk of the supreme court a copy of such notice and of the record of such action. (Stats. 1889, 24.)\\nSection 479 of the criminal practice act provides that no appeal from a judgment of conviction, unless it be one imposing a fine only, shall stay the execution of the judgment, but the defendant, if in custody, shall remain in custody, unless admitted to bail as prescribed in section 502. (Gen. Stats. 4359.)\\nSection 500 of the same act provides that, after conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail. (Gen. Stats. 4380.)\\nIt is very clear, from these statutes, that an appeal from a judgment of imprisonment would not operate as a stay of the execution thereof, and the defendant, if in custody, must so continue unless admitted to bail.\\nIn the case at bar, the complaint avers that the defendant was released from custody upon the execution and acceptance of the bail bond. The court had no right,- no authority and no power to order a stay of execution of the judgment of imprisonment for any length of time; nor had it any authority to release the defendant from custody, under bail, until he had appealed.\\nAn appeal is taken by the service of the notice required in section 4354 above cited. (Lambert v. Moore, 1 Nev. 344.)\\nIt is well settled that bail, taken in criminal action, to be valid, must be authorized by law. (Dickinson v. State, 20 Neb. 72; Powell v. State, 15 Ohio, 579; State v. Clarke, 15 Ohio, 595; Williams v. Shelby, 2 Or. 144; State v. Winnenger, 81 Ind. 53; Harris v. Simpson, 14 Am. Dec. 101.)\\nFor these reasons the court erred in sustaining respondent's demurrer to the appellants' answer to the amended complaint. The judgment will be reversed, and cause remanded for further proceedings in accordance with this opinion.\"}"

nev/4646696.json

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+"{\"id\": \"4646696\", \"name\": \"THE VIRGINIA CITY GAS COMPANY v. THE MAYOR AND BOARD OF ALDERMEN OF VIRGINIA CITY; both parties appealing\", \"name_abbreviation\": \"Virginia City Gas Co. v. Mayor of Virginia\", \"decision_date\": \"1867\", \"docket_number\": \"\", \"first_page\": 320, \"last_page\": 336, \"citations\": \"3 Nev. 320\", \"volume\": \"3\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T23:47:23.879781+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE VIRGINIA CITY GAS COMPANY v. THE MAYOR AND BOARD OF ALDERMEN OF VIRGINIA CITY; both parties appealing.\", \"head_matter\": \"THE VIRGINIA CITY GAS COMPANY v. THE MAYOR AND BOARD OF ALDERMEN OF VIRGINIA CITY; both parties appealing.\\nWhen the Legislature, in granting a charter to a Gas Company, imposes upon the company, as one condition of the charter, the furnishing of a certain quantity of gas to the city, the law does not raise an implied promise on the part of the city to pay for that which the company are unconditionally required to furnish.\\nPer Lewis, JV \\u2014 When a Gas Company is required to furnish, free of cost, a certain quantity of gas for the first year, and a certain larger quantity for the second year, and so on to the end of its charter, and the law fixes the time when the gas wor/cs shall be finished, but does 'not fix the day when the furnishing of gas shall commence, the company shall have a reasonable time, after the gas works are finished, to lay pipe and prepare for distribution.\\nThe first year for distribution shall commence after the lapse of a reasonable time from the finishing of the works.\\nPer Joiinson, J. \\u2014 -When the company was bound to finish the works on or before a certain day, and the city was bound to furnish the burners, etc., the first year would commence when the city was ready to furnish the burners, provided of course that readiness must be either after the works were actually ready for the distribution of gas, or after the expiration of the time -when the law required the works to be finished.\\nIf the city neglected to furnish the burners as soon as they were entitled to the gas, still they would only be entitled to the smaller quantity for one year from the time they furnished the burners.\\nPer Beatty, C. J., dissenting. \\u2014 The company were bound to be ready to furnish gas from the period when the law required the works to be finished,. On that day the \\u201c first year \\u201d commenced, during which they were bound to furnish the smallest quantity of gas. One year thereafter they were, bound to be ready to furnish the increased quantity. If the city failed for six months of the first year to furnish burners, it lost the use of the smaller supply for that period, but this did not postpone the period when the company was bound to commence furnishing the large supply.\\nAppeal from the District Court of the First Judicial District, Hon. Richard Rising, presiding.\\nThe facts are fully stated in the opinions of the Court.\\nHoover Cole, for the City.\\nThe city was entitled to five burners for the first year, say from June 1st, 1864, to June 1st, 1865. For the first six months no gas was used; for the last, just double the quantity per night fixed by law. This was consuming just the right quantity in the year, and the city is not bound for anything.\\nThe law makes it compulsory on the company to furnish the gas. If the law compels the company to furnish the gas, how can it be held that it was furnished on an implied contract of the city to pay for it.\\nJonas Seely and Will Campbell, for the Coi\\u2019poration.\\nNo brief on file.\", \"word_count\": \"6707\", \"char_count\": \"37868\", \"text\": \"Opinion by\\nLewis, J., Johnson, J.,\\nconcurring in judgment;\\nBeatty, C. J.,\\ndissenting.\\nThe plaintiff is a corporation organized under an Act of the Legislature of the Territory of Nevada, entitled \\\" An Act to create the Virginia City Gas Company,\\\" approved November 28th, a.d. 1861.\\nThe second section of this Act grants to the plaintiff the exclusive privilege of supplying the City of Virginia, its inhabitants and residents, with illuminating gas for the period of ten years from the approval of the Act. The third section authorizes it to erect all necessary buildings, works and machinery, also to make the neces sary excavations in the public streets for the purpose of laying gas pipes therein. The law also made it the duty of the plaintiff to complete all the necessary works for the manufacture of such illuminating gas by the first day of June, a.d. 1864, and the sixth and last section of the Act declares that \\\" It shall be compulsory on said company to provide said city, or cities, with sufficient gas to supply five burners for the public streets for the first year ; for the second year sufficient gas to supply ten burners ; and for each year thereafter sufficient gas for fifteen burners, the lamp burners and lamp posts to be provided by the proper authorities.\\\"\\nAs to the preparation for furnishing the gas, the plaintiff seems to have complied with the law ; at least there is nothing in the record showing a failure to do so.\\nThis action was instituted on the twelfth day of May, a.d. 1866, for the purpose of recovering the sum of four thousand eighty-three dollars and thirty-three cents, claimed to be due from the City of Virginia for illuminating gas furnished by the plaintiff between the eighteenth day of December, a.d. 1864, and the eleventh day of May, a.d. 1866.\\nThe defendants admit that the gas was furnished by the plaintiff, as alleged in its complaint, hut as a defense it is claimed the law makes it the duty of the plaintiff to furnish such gas free of charge ; that no more was furnished than the law made it its duty to furnish, and hence that it is not entitled to recover. The Judge below found, as matter of fact, that from the eighteenth day of December, a.d. 1864, up to the eleventh day of May, a.d. 1866, the plaintiff furnished the City of Virginia two hundred and seventy-seven thousand two hundred feet of gas, which was reasonably worth the sum of four thousand one hundred and fifty-eight dollars ; that during the first year, that is, from the eighteenth day of December, a.d. 1864, to the eighteenth day of December, a.d. 1865, the plaintiff furnished the City two hundred and one thousand six hundred feet, which was one hundred thousand and eight hundred feet in excess of what the laiv required the plaintiff to furnish ; that this excess was reasonably worth the sum of one thousand five hundred and twelve dollars, for which judgment was given against the defendant. The Court also held that the plaintiff was not \\u2022 entitled to recover any compensation for the amount of gas which the law made it its duty to furnish to the city.\\nBoth parties appeal from the judgment, the plaintiff claiming that it should have had judgment for the value of all the gas furnished to the City; vrhilst counsel for defendant insists that only the amount required by law has been furnished to the City, which, it is urged, the law makes it the duty of plaintiff to furnish free of charge. Whether such be the requirement of the law is the question now to be determined. Unless we can imply a promise on the part of defendant, founded upon sufficient consideration, to pay for the gas furnished to it, there can be no pretense on the part of the plaintiff to a right of recovery, because it seems to be conceded that no express contract has ever been entered into between the parties. Can such contract be created by implication ? Clearly not. It will be observed that See. 6 of the Act under which the plaintiff was organized makes it compulsory upon it to furnish the City of Virginia with a certain quantity of gas during the entire period of its franchise. Nothing is said in the Act about payment for the gas so furnished.. That in granting franchises it is perfectly proper and within the power of the Legislature to impose duties upon those to whom they are granted, and to attach conditions to such privileges, is undoubted. As in this case it was doubtless within the power of the Legislature to make it the duty of the plaintiff to furnish the City of Virginia with a certain quantity of gas, as a condition upon which it should enjoy its franchise, and in our opinion such is the construction to be placed upon the Act under consideration.\\nA contract is defined to be an agreement of two or more persons upon sufficient consideration to do or not to do a particular thing. The existence of such agreement is either established by the proof of an express engagement between the respective parties, or by circumstances from which the law will presume a promise or agreement. Hence the distinction between implied contracts and express contracts, which lies not in the nature of the undertaking, but only in the mode of proof. No express promise by the defendant to pay for the gas furnished to them is proven in this case, but .it is claimed the law will imply such promise fiom the acceptance of the gas by them. Had not the law made it compulsory upon the plaintiff to supply the city with gas, a promise to pay a fair consideration for it would doubtless be implied from the circumstances presented in this case. But the Act of the Legislature has destroyed the possibility of such implication. By making it the absolute, unconditional duty of the plaintiff to furnish the defendant with a certain amount of illuminating gas, a promise on the part of the defendant to pay the plaintiff for performing such duty imposed upon it by the Legislature could not properly be implied. The plaintiff was not induced to furnish the gas to the city of Virginia' by any promise or act on the part of the defendant, but by the mandate of the Legislature, which is absolute and unconditional. The contract, if it may be so called, is between the plaintiff and the State, by which, in consideration of the privileges granted by the Legislature\\u00bb it is made the duty of the plaintiff to furnish the city with a certain amount of gas. The city of Virginia was not a party in anyway to that contract though it was beneficially interested in it. It is like a contract between two individuals for the benefit of a third. Thus A, in consideration for some privilege or profit derived from B, agrees to do some act for the benefit of C, who is not a party to the transaction. Though C may acquire advantage or profit from such contract, it will hardly be claimed that he would be holden upon an implied promise to pay a consideration for the profit so acquired by him. In such case the act of A would be induced by his contract with B; hence a promise by C to pay for any advantages he might acquire from it could not very well be implied. - Such is certainly this case. The State grants to the plaintiff valuable privileges, and in the grant it is made compulsory upon it to do certain things which are for the benefit of the city of Virginia. The natural presumption is that the Legislature imposed that duty on the plaintiff in consideration for the franchise granted to it.\\nBut it is urged that the intention of the Legislature was simply to require the plaintiff to furnish the city with a certain quantity of illuminating gas provided the city paid for it; or rather, that it should give the city the same privileges given to individuals generally. If that were the object of the Legislature it succeeded unusually well in concealing it from the reader of the Act. The language of the law makes it compulsory upon the plaintiff to furnish a certain amount of gas to the city, and that absolutely and not upon any condition. There is no proviso that none shall be furnished if the city*does not pay for it. If payment by the city was contemplated, the Legislature would doubtless have left it within the power of the plaintiff to refuse furnishing the gas, if the city refused to pay for it. Instead of that, however, it is made compulsory on the plaintiff absolutely to furnish it for the period of ten years.\\nThe duty imposed upon the plaintiff is absolute, and there is nothing in the Act which will justify this Couft in making the act to be done by it dependent upon a condition. If the construction placed upon the sixth section of the Act by counsel for plaintiff be correct, it accomplishes nothing whatever; for it is to be presumed the plaintiff would, if profitable to itself, furnish the defendant with whatever gas it might need, -without any legislative Act compelling it to do so. And if payment by the,city were a condition -upon which it is to be furnished, then it is clear the plaintiff could impose upon the city an exorbitant charge, and if not paid, could refuse to furnish the gas. Thus it would, after all, be placed in the power of the plaintiff to furnish the city with gas or not as it might choose, and so the sixth section of the Act in question would give the city of Virginia no advantage whatever, and' would practically amount to nothing. Unquestionably the incorporation of section six into the Act^ was for some beneficial object; but if the construction of counsel for the plaintiff be accepted, we must conclude either that the Legislature had no object whatever in adopting that section, or that it totally failed in making it known. It is the duty of Courts, if possible, to place upon the Acts of the Legislature such construction as will give them beneficial and practical effect, rather than to nullify or make them of no practical utility by an unnatural interpretation of the language. We conclude it was the object of the Legislature to compel the plaintiff to supply the quantity of gas mentioned in the Act to the city of Virginia, free of charge ; and the gas having been furnished to the defendant in compliance with a duty imposed by the Legislature, on promise by the defendant to pay for any advantage it might have acquired by the performance of such duty can be implied, nor indeed would .the per-: formance of such duty be sufficient to support even an express promise by the city.\\nThe next question to be determined is whether the plaintiff furnished the city with any quantity of gas in excess of that which the law made it incumbent on it to furnish. If so, it is entitled to recover from the defendant its fair value. The Judge below finds that over one hundred thousand feet were so furnished, and that such excess was reasonably worth the sum of fifteen hundred and twelve dollars. In arriving at this conclusion the Judge assumed that the first year, (during which time the plaintiff was required to furnish gas sufficient for five burners) commenced on the eighteenth day of December, a.d. 1864. That was probably the time when the plaintiff began to supply the gas to the city. Though the works for the manufacture of the gas are required to be finished by the first day of June, a.d. 1864, yet np exact day is fixed when the gas should be furnished to the city. It is evident all the works necessary for manufacturing it might be completed by the first day of June, whilst by reason of the pipes not being laid through the city, it could not be supplied for some time afterwards.\\nThe laying of the pipes through the city cannot be considered a part of the ivories for the manifactura of gas. Hence, after the first of June, when the works were required to be completed, the plaintiff had a reasonable period of time within which to lay the pipes necessary to supply the city. When an act is required to be done, and no time is fixed, the law requires it to be done within a reasonable time, all the circumstances being considered. From the first of June to the eighteenth of December may not have been unreasonable time to allow the plaintiff to lay its necessary pipes.\\nOn the eighteenth day of December, a.d. 1864, then the first year commenced. During that year the law only required the plaintiff to supply five burners for the city, whilst the Court finds that it furnished ten. So double the quantity which the law made it the duty of the plaintiff to supply was furnished during the first year, and the Court below finds the excess thus furnished was reasonably worth the sum of fifteen hundred and twelve dollars.\\nThe judgment being in accordance with the findings, must be affirmed. Costs here must be equally divided between the parties.\\nBy Johnson, J.\\n* I think it apparent, upon a consideration of the Legislative Acts under which plaintiff claims its charter privileges, that it is compelled to furnish Virginia City with illuminating gas free of charge, to the extent, for the time, and for the uses specified in section six of the Act referred to. The privileges accorded to this company, of supplying Virginia City and its inhabitants with illuminating gas, are contained in section two; whereas section six -makes it compulsory on the company to provide the city with sufficient gas for use on the public streets; for the first year to supply five, the second year ten, and each succeeding year thereafter, during the existence of the charter, for fifteen burners. The same section requires \\\" the corporate authorities to provide the lamps, burners, and lamp posts.\\\" The learned counsel for plaintiff maintains \\\" that the aforesaid section only renders it compulsory on the company to furnish the gas to the city, but in no degree exempts the city from an implied obligation to pay the company for it.\\\" I interpret the law differently, and propose briefly to consider some reasons which determine my judgment on this controverted point.\\nIn the first place we observe the Act does not, in express words, declare that the company shall provide gas for the public use without pay, nor that the city shall in any degree be supplied with gas free of charge. Hence, the exemption claimed by the corporate authorities of Virginia City rests solely on an implied agreement of the original contracting parties \\u2014 the Legislature granting the franchise and the beneficiaries named in' the grant; and therefore we must look to the entire Act and the circumstances under which it was passed to ascertain the probable intention of these parties in this regard. We have seen that the Act requires the company \\\"to provide gas,\\\" and the city authorities \\\"to provide lamps, burners, and lamp posts:\\\" None will dispute but that the words \\\" provide,\\\" in connection with the city, is but another mode of expressing that \\\" the city authorities must furnish lamps', etc., at the expense of the city.\\\" If such is the meaning of the words in the one instance, can any plausible pretext even be' found for using the same words in a contrary and opposing sense in respect to the thing compelled of the company ? I think not, and the only rational conclusion is, that when the Act declares that the company shall provide a given quantity of gas, it shall 'be at the expense of the company and nOt of the city.\\nThe right of the city to exact this service, and the corresponding duty of the company to perform it, depend on one condition only \\u2014that the Gas Company shall not be burdened with the cost of supplying either lamps, burners, or lamp posts, and the legislative reservation in favor of the city is coupled with the condition that the expenses of these are to be borne by the city. \\\" The one thing being expressed excludes all others.\\\" When the law has in effect declared that the city shall pay certain specific items of expense necessary to secure to the public the benefit of lighted streets, it clearly excludes the presumption that it shall furthermore be held liable to pay for the gas provided by the company.\\nAgain: if it was the intention of the parties to this compact that the company should be compelled to furnish the city with gas, on the further condition that the city should pay for it, why is any quantity specified, or a limit fixed to this supply \\u2014 at least, to so inconsiderable an amount \\u2014 and especially, why is this limit enlarged at stated periods so that ultimately the quantity to be furnished is increased to three-fold that of the first year ? It occurs to me that the only theory upon which the full extent of plaintiff's claim can be conceded and made consistent with this feature of the Act is, that the Gas Company might not be compelled to provide a supply for the city beyond the productive capacity of its works, a theory scarcely reconcilable with our impressions of such establishments in populous cities. A more probable explanation of the reasons why these limitations were introduced in the body of the Act accords with our construction of it, and may be summed up in about this way. Here was a valuable franchise within the granting powers of the Legislature. It is bestowed on this company and made exclusive, so that the grantees cannot be molested by any rival enterprise. The city and its people for ten years are compelled to rely on this company for their supplies of illuminating gas ; the public streets are to be disturbed in the process of laying gas pipes; and as compensating in some degree for the rights and privileges acquired by the company, the Legislature compels it to furnish the city on which it has imposed this monopoly, illuminating gas for public use, but with the understanding that it is to be supplied without charge, the allowance is restricted within certain limits; and also considering the obstacles which such enterprises ordinarily have to encounter in their beginning, the quantity for the first year, is limited to the very small amount specified in the Act. But when the expected advance of the city in population and improvement, by the natural course of things, has enhanced the demand for its use and consequently the resulting profits, the bonus is advanced with the enlarged facilities and resources of the company.\\nBut the learned counsel for the plaintiff seems to ascribe some importance to the fact that at the same session of the Legislature two other franchises for similar purposes in other cities of the Territory were granted, in each of which there was contained a special clause, that a given quantity of gas .was to be supplied to the cities named \\\" free of cost,\\\" and concludes from this circumstance that if the Legislature meant to compel the plaintiff to furnish gas to Virginia City free of cost, it would have been expressly declared in this, as in the other charters. Because the Legislature has adopted more formal and precise language in the later Acts, perhaps ex industria, to silence all doubt, we are not to conclude that the omission of these words in the first mentioned Act establishes a contrary intention; but the question at issue must be determined the same as if no other franchise of this character had been granted by the Legislature. If, however, the position of counsel for plaintiff be correct, it evidences this remarkable fact, that the most valuable charter, the one granted plaintiff, is made in all material respects unconditional; whilst the others, of infinitely less value, are cumbered and burthened with exactions \\u2014 an inconsistency and favoritism rarely discernable even in a Territorial grant of a private franchise.\\nThe matters embraced in the second and remaining qustion discussed at the hearing of this appeal involve the ascertainment of but a single fact, as to when \\\" the first year \\\" began, in the sense and meaning the expression is used in the Act; because such date, when fixed, regulates the measure of all subsequent supplies of gas which the city can claim for public uses, free of cost; and from thence must be determined in what degree the quantity furnished the city has exceeded the amount it was lawfully entitled to without charge.\\nHere it may be stated that this is an appeal from the judgment only, and consequently none of the testimony adduced on the trial below is before us ; and as the District Court has restricted its findings to but a portion of the facts which now properly should be made to appear, we are uninstructed on some questions which in my judgment were pertinent matters of inquiry; and indeed from the record as it comes to us, it is somewhat difficult to arrive at a satisfactory conclusion concerning this feature of the case. For instance, it would seem consistent with the issues made by the pleadings, to have determined when the works of the Gas Company were completed, when supply pipes were laid connecting the gas works proper with that portion of the city to be supplied, and finally when the city authorities were in a condition, with lamp posts, lamps and burners, to have the streets of the city lighted with gas. Upon most if not all of these points, it is reasonable to conclude that proofs were before the Court below; but none of these collateral facts are distinctly passed upon by the findings, and in some respects it is left to conjecture the basis upon which the Court below founded its judgment. In this condition of the case, let us for a moment recur to the statutes already cited.\\nBy the terms of Sec. 2 the charter of'plaintiff runs ten years from the 28th of November, 1861- \\u2014 -the date of its approval. Sec. 4 requires the grantees named in the Act to organize under the general incorporation laws of the Territory within three months. By amendments to Sec. 5 of the original Act (see Acts 1862, pp. 15, 16) the company is required \\\" to commence the completion of the works necessary for the manufacture or production of gas\\\" by the twelfth of June, 1863, and \\\" to complete the same on or before the first day of June, 1864.\\\" Sec. 6, as already shown, specifies the quantity of gas to be supplied for public use within a stated period, commencing with \\\" the first year\\\"; but nowhere in the Act is a day or an event stated from whence shall be computed the commencement of such \\\" first year.\\\" Wherefore we must determ ine the intended meaning of the phrase so used in this connection. Plaintiff insists that the \\\" first year\\\" spoken of manifestly refers to the year next succeeding the completion of the gas works; and assuming the first of June, 1864, to be the precise day on which the event occurred, by a ready process of reasoning establish their theory as to the point in question. To this proposition my reply is this: In the first place, it clearly appears that the date of -June 1st, 1864, was fixed for a single purpose, and its use cannot be extended beyond that of marking the extreme limit of time given for the completion of the manufacturing works of the company. It does not even fix a time, except in a relative sense, as the language of the section is \\\" on or before \\\" the first of June, 1864; so that the event of completing such works may have happened on any day between the passage of the amendatory Act and the limit therein specified. As to the other ground assumed by counsel, that June 1st, 1864, was the true date of the completion of these works, it is sufficient to suggest that neither by the pleadings nor findings of the District Court is this fact shown, and for aught this Court can know, the works were completed prior to that day. However, in the light which I regard this particular point of inquiry, it is quite immaterial whether such was a fact or not. But it is said that \\u2022inasmuch as the first of June, 1864, is the only date fixed by the Act which with reasonable propriety can be considered for such 'purpose, we should therefore accept it as the commencement of the \\\" first year,\\\" as otherwise there cannot be any date ascertained .for such purpose. As already observed, this date is used in a relative sense only, is fixed for but a single purpose, and certainly it .has but a very remote connection with the question of time involved in the supply of gas to the city. The absence of a date fixed by express words may be no serious impediment in determining the commencement of such \\\" first year,\\\" if some event contemplated by the Act can be made to serve a similar purpose, more especially when, as in this case, the rights of the city are made dependent absolutely on conditions to be performed by the corporate authorities, and the compliance with these conditions not fixed or limited within any given space of time. The condition upon which the city was to derive its gratuitous supply of illuminating gas, com pelled it to provide necessary lamps, etc. Whenever these works of the company were completed, and whether completed or not, after the day limited for such purpose, the rights of the city attached, and the obligation of the company to furnish the stated supply of gas became operative; provided, the city was ready with its lamps, lamp posts, and burners. But until this needful provision had been made by the corporate authorities, neither could the public be benefited by lighted streets, nor the gas company be held amenable in any form of proceeding for withholding such bounty; and this condition of things would exist so long a3 the city neglected to make provision in the respects mentioned. The loss and inconvenience to the city would be measured by the delay and neglect of its own agents. The advantages accruing to the company would also be proportioned to the extent of such delay, for we remember this act limits the duration of the charter to ten years following the approval of it; and as the supply of gas which the city is entitled to after the first two years must equal the demands of fifteen burners as against five burners during the first year, it follows that the period of the greater supply would be diminished in equal degree as to time, and threefold as to quantity \\u2014 the final result depending on the time allowed to elapse before the proper authorities had provided necessary lamps, lamp posts, and burners. It seems to me, therefore, that under the circumstances it is most reasonable to conclude that the Act contemplates \\\" the first year \\\" to be reckoned from the time when the city was prepared to accept the gas from the company for the purposes indicated. The happening of the event, it is true, depended on many contingencies which were incapable of being estimated at the time the Act was passed; but in the progress of events the ascertainment of this fact was not only rendered possible, but indeed as readily detei'mined as any other question which might arise in giving construction to the law. *\\nThe facts found show that the company commenced to supply the city with gas in December, 1864; and as no claim is made against the company for not furnishing a sufficient supply for public use prior to this date, we may infer that this was the earliest time the city was conditioned to accept it, and therefore the supply for five burners would embrace the twelve months succeeding, to wit: until December, 1865, when the increased supply should begin, and would terminate on the corresponding day of the following December, 1866, after which, and until the expiration of the charter, the maximum, quantity specified in the Act became the standard of future estimates between the parties in such particular. Guided by the principles herein laid down, it follows, therefore, that the gas consumed for the public use, in excess of a sufficient quantity to supply five burners, between the respective dates in December, 1864, and December, 1865, the city is liable for ; and as the findings of fact and judgment of the Court below' (except a trivial matter of computation) are in accordance with the principles enunciated in this opinion, I concur in the conclusions attained on both of the points discussed in the opinion of Mr. Justice Lewis, and concur in his affirmance of the judgment.\"}"

nev/4781493.json

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+"{\"id\": \"4781493\", \"name\": \"TOWN OF PAHRUMP, an Unincorporated Town; PAHRUMP TOWN BOARD, Appellants, v. COUNTY OF NYE, A Legal Subdivision of the State of Nevada, Respondent\", \"name_abbreviation\": \"Town of Pahrump v. County of Nye\", \"decision_date\": \"1989-05-18\", \"docket_number\": \"No. 18951\", \"first_page\": 227, \"last_page\": 230, \"citations\": \"105 Nev. 227\", \"volume\": \"105\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T21:47:13.004354+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TOWN OF PAHRUMP, an Unincorporated Town; PAHRUMP TOWN BOARD, Appellants, v. COUNTY OF NYE, A Legal Subdivision of the State of Nevada, Respondent.\", \"head_matter\": \"TOWN OF PAHRUMP, an Unincorporated Town; PAHRUMP TOWN BOARD, Appellants, v. COUNTY OF NYE, A Legal Subdivision of the State of Nevada, Respondent.\\nNo. 18951\\nMay 18, 1989\\n773 P.2d 1224\\nFrank W. Daykin, Carson City, for Appellants.\\nBeckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for Respondents.\\nLionel Sawyer & Collins and Garry L. Hayes, Las Vegas, for Amicus Curiae.\", \"word_count\": \"985\", \"char_count\": \"6135\", \"text\": \"OPINION\\nPer Curiam:\\nThis is an appeal from an order of the district court granting a motion for summary judgment and declaring certain sections of 1985 Statutes of Nevada Chapter 682 unconstitutional. 1985 Statutes of Nevada Chapter 682 transfers powers of planning, zoning, land division and building inspection from respondent County of Nye to appellant, the unincorporated Town of Pah-rump. The trial court found sections 3 and 4 of chapter 682 to be unconstitutional because they violate article 4, sections 20 and 25 of the Nevada Constitution. Article 4, section 20 of the Nevada Constitution prohibits the legislature from passing local or special laws which regulate county business. Article 4, section 25 of the Nevada Constitution requires that the legislature establish a system of county government which is uniform throughout Nevada. Pahrump appeals the trial court's ruling on the basis that the trial court misinterpreted and misapplied these provisions of the Nevada Constitution to chapter 682. We affirm the trial court's ruling.\\nWe are not persuaded by Pahrump's argument that chapter 682 does not offend article 4, section 25 of the Nevada Constitution because the powers of planning, zoning and building which the statute purports to transfer from Nye County to Pahrump are not \\\"integral components\\\" of a uniform system of government. This court has previously defined a \\\"system of government,\\\" as used in the context of section 25, as consisting of \\\"the powers, duties, and obligations placed upon [a] political organization.\\\" McDonald v. Beemer, 67 Nev. 419, 426, 220 P.2d 217, 221 (1959), quoting Singleton v. Eureka County, 22 Nev. 91, 35 P. 833 (1894). Since zoning and planning fall within the \\\"powers, duties and obligations placed upon [a] political organization,\\\" they are precisely the type of activities that section 25 was intended to regulate. Because chapter 682 delegates these powers away from Nye County to the unincorporated Town of Pahrump in a unique manner, one not utilized by other counties, it destroys the uniformity of the system of government among the counties. The trial court, therefore, correctly ruled that chapter 682, sections 3 and 4 are violative of article 4, section 25 of Nevada's constitution.\\nNeither are we persuaded by Pahrump's argument that chapter 682 merely \\\"affects\\\" county business, but does not regulate it, and therefore does not violate article 4, section 20 of the Nevada Constitution. The powers vested by the statute are broad and ongoing, and they substantially alter the power structure of the county. They do not relate only to a single item or project of county business, as do the statutes which we have previously held merely \\\"affect\\\" county business. See City of Reno v. County of Washoe, 94 Nev. 327, 580 P.2d 460 (1978); Cauble v. Beemer, 64 Nev. 77, 177 P.2d 677 (1947). Accordingly, the trial court properly determined that chapter 682, sections 3 and 4 offend article 4, section 20 of the Nevada Constitution.\\nFinally, we do not agree with Pahrump's assertion that Pah-rump's location in relation to the county seat presents a compelling reason to allow a special law that is exempt from article 4, section 21 of the Nevada Constitution, which requires that wherever possible laws must be general and of uniform operation throughout the state. It appears from the legislative history that chapter 682 was originally presented as a general law; however, when various counties voiced concern and opposition to it, the bill was amended to limit its impact to Pahrump and Nye County. Only after the bill was so amended was passage attained.\\nAs previously announced by this court, the reasoning behind requiring that a statute be general in nature is that when a statute affects the entire state, then it is more likely to receive adequate and thorough consideration from all members of the legislature; whereas, if the bill is localized, it is apt not to be considered seriously by those who are not affected by it. See State ex rel. Attorney General v. Boyd, 19 Nev. 43, 5 P. 735 (1885); City of Reno v. County of Washoe, 94 Nev. 327, 580 P.2d 460 (1978). The legislative history of chapter 682 indicates that its passage was predicated on the very events which section 21 was intended to prevent.\\nFurthermore, special legislation is not warranted in this situation. There are other constitutional avenues through which Pah-rump may obtain its apparent goal of fast-paced growth without having to seek Nye County's approval. For instance, Pahrump may acquire control over its zoning, building and growth by becoming an incorporated town. By incorporating, Pahrump would then take on the financial responsibility for utilizing its acquired powers and, thus, would be acting in uniformity with the arrangement between other incorporated cities and their respective counties. If incorporation is not a satisfactory alternative, then perhaps Pahrump can achieve its growth goals by seeking more active representation of its concerns by members of the Nye County Board of Commissioners.\\nWe find no error in the trial court's ruling that 1985 Statutes of Nevada Chapter 682 is unconstitutional because it violates article 4, sections 20 and 25 of the Nevada Constitution. We, therefore, affirm the trial court's judgment in its entirety.\\nArticle 4, section 25 of the Nevada Constitution provides that \\\"[t]he legislature shall establish a system of County and Township government which shall be uniform throughout the State.\\\"\\nArticle 4, section 20 of the Nevada Constitution requires, in pertinent part, that \\\"[t]he legislature shall not pass local or special laws in any of the following enumerated cases. . . . Regulating county and township business.\\\"\"}"

nev/4785431.json

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+"{\"id\": \"4785431\", \"name\": \"ALL MINERALS CORPORATION, a Nevada Corporation, Appellant, v. ROBERT P. KUNKLE, FRANCES KUNKLE, GERALD J. DALTON and M. JOYCE DALTON, Respondents\", \"name_abbreviation\": \"All Minerals Corp. v. Kunkle\", \"decision_date\": \"1989-12-20\", \"docket_number\": \"No. 19413\", \"first_page\": 835, \"last_page\": 839, \"citations\": \"105 Nev. 835\", \"volume\": \"105\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T21:47:13.004354+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALL MINERALS CORPORATION, a Nevada Corporation, Appellant, v. ROBERT P. KUNKLE, FRANCES KUNKLE, GERALD J. DALTON and M. JOYCE DALTON, Respondents.\", \"head_matter\": \"ALL MINERALS CORPORATION, a Nevada Corporation, Appellant, v. ROBERT P. KUNKLE, FRANCES KUNKLE, GERALD J. DALTON and M. JOYCE DALTON, Respondents.\\nNo. 19413\\nDecember 20, 1989\\n784 P.2d 2\\n[Rehearing denied May 31, 1990]\\nVargas & Bartlett and Scott Glogovac, Reno; Hugh C. Garner & Associates, Salt Lake City, Utah, for Appellant.\\nBible, Hoy, Miller, Trachok & Wadhams, Elko; Kimball, Parr, Crockett & Waddops and Michael M. Later, Salt Lake City, Utah; Parsons, Behle & Latimer and Stephen J. Hull, Salt Lake City, Utah, for Respondents.\", \"word_count\": \"1638\", \"char_count\": \"9692\", \"text\": \"OPINION\\nPer Curiam:\\nIn this case, we are asked whether the district court has the power to declare the actions of a party a nullity when the party acts in violation of a preliminary injunction. We hold that the district court may not nullify an action taken in violation of a preliminary injunction unless the party that obtained the injunction properly attacks the validity of the act. Under this rule, the district court in the case at bar did not have the power to nullify an action that was a violation of the preliminary injunction. Consequently, we reverse.\\nFacts\\nIn 1967, respondents Dalton and Kunkle entered land in Nye County owned by the federal government and posted notices that stated that they were claiming the right to mine in that area. At some point, NL Industries also staked its claim to the mining rights on the same land. Later, Dalton and Kunkle sold the rights that they had to All Minerals, the appellant, subject to the reservation to Dalton and Kunkle of a royalty on all ores and minerals removed from the claims by All Minerals. Finally, in 1978, NL Industries sued Dalton and Kunkle and All Minerals in a quiet title action to determine who owned the right to mine from the location.\\nNL Industries and All Minerals agreed that, until the district court had decided which of the companies owned the mining rights, it would be best if neither company did any mining. They put this agreement into writing, and they asked the district court to order both companies to obey the agreement. The district court then ordered both parties to refrain from mining at the location in Nye County and also to stay off that land completely. This order was an extension of the court's- earlier temporary restraining order acquired by NL Industries at the beginning of the litigation. Dalton and Kunkle were not involved in the agreement, and the district court's order did not include them.\\nSoon after the district court ordered All Minerals to stay off the land, All Minerals discovered that it had failed to file affidavits of labor with the BLM which are necessary to preserve a mining claim. The result of this failure to fil\\u00e9 was that All Minerals no longer had any mining claims to protect. Instead of telling this to the district court, All Minerals entered the land in violation of the district court's order and posted notices that it was making new claims of the mining rights on the same land.\\nNL Industries had also failed to file the required papers with the BLM. After All Minerals had entered the land in violation of the preliminary injunction, NL Industries also attempted to relo cate its claims. In the midst of this Nevada litigation, NL Industries and All Minerals sought to challenge the BLM's determination that the claims were void because of the failure to file the affidavits of labor. This delayed the state litigation and eventually ended in a holding against NL Industries and All Minerals in the Ninth Circuit. See NL Industries v. Secretary of Interior, 777 F.2d 433 (9th Cir. 1985). NL Industries decided not to pursue its claim further and withdrew from the Nevada litigation, leaving All Minerals to litigate against Dalton and Kunkle.\\nWhen the district court found out that All Minerals had violated the order, the district court stated that All Minerals' new claim was invalid because it had been obtained in violation of the preliminary injunction. Upon hearing this, Dalton and Kunkle went out to the land and posted notices that they were claiming the right to mine in that area. Dalton and Kunkle's actions did not violate the district court order because the district court order only involved All Minerals and NL Industries. Therefore, the district court concluded that Dalton and Kunkle held superior mining rights because All Minerals' violation of the order had made its actions in relocating the claims invalid. The district court denied All Minerals' motion for summary judgment and declared the matter moot.\\nDiscussion\\nAll Minerals argues that the court could not enforce its preliminary injunction by declaring All Minerals' attempts to relocate the mining claims invalid. This argument rests on the nature of the court's enforcement powers and punishment powers when a party violates an order.\\nSince All Minerals violated the preliminary injunction when it relocated its claims, the court certainly had power to punish All Minerals for contempt. NRS 22.100 provides that the penalty for contempt is a fine of up to $500 or imprisonment for up to twenty-five days or both. While the statutes provide no other penalty for contempt, we have held that a court may take other measures to insure that the parties obey the court's order. Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970) (remanded on other grounds). In Noble, a divorced mother ignored the orders of the court granting visitation of the child to the father. The court suspended its order of alimony in order to sanction the mother. We held that \\\"courts have always had the inherent power to maintain and enforce the dignity and decency in their proceedings.\\\" Id. at 463, 470 P.2d at 432. We went on to explain that this inherent power goes beyond the power that may be granted by the legislature. Id.\\nIn the specific realm of injunctions, courts have held that they had inherent power to nullify acts that were violations of injunctions. However, this power has been limited. Specifically, an act done in violation of an injunction is not a nullity except as to the party that obtained the injunction when that party attacks the action in a proper manner. Candler v. Wallace Candler, Inc., 113 N.W.2d 901 (Mich. 1962) (stating that transfer in violation of injunction invalid as to opposing party); Town of Fond du Lac v. City of Fond du Lac, 126 N.W.2d 206 (Wis. 1964) (stating that act in contempt of court's order not invalid because injunction has no in rent effect).\\nThe basis for not permitting courts to nullify acts done in violation of an injunction is that an injunction is in personam, not in rem. In other words, the court may punish the party that violates the injunction with a fine or imprisonment but may not alter property rights resulting from the violation. The exception to this general rule that a court does not have the power to nullify an action that is a violation of an injunction is necessary in order to permit the court to maintain its control over the subject matter of the proceedings.\\nIn the case at bar, the court's purpose in ordering the preliminary injunction was to maintain the status quo until the case could be adjudicated. The court did not want either party to mine on the land in controversy until the court could determine who held superior title to the mining rights. The court was under the mistaken belief, as were the parties, that either NL Industries or All Minerals held a valid claim to mine on the land in controversy; however, neither party held such a right due to the failure to file the affidavits of labor with the BLM. The status quo when NL Industries commenced its action was that the district court could not rule in favor of either party with respect to superior title to mining rights. When All Minerals entered and posted its notices, it did not undermine the authority of the court, especially with respect to the rights of Dalton and Kunkle. In fact, Dalton and Kunkle's only interest in the outcome of the proceedings at that point was the royalties it might obtain from All Minerals' future mining. NL Industries was the only party that arguably would have had standing to challenge All Minerals' actions; however, NL Industries has not properly attacked All Minerals' actions. While it is true that All Minerals' actions were an attempt to establish superior title to the mining rights, the original dispute, and consequently the preliminary injunction, involved only NL Industries and All Minerals and was moot due to the failure of both parties to file the affidavits of labor.\\nAn act done in violation of an injunction is valid unless the party that obtained the injunction properly attacks the validity of the act. Dalton and Kunkle did not obtain the injunction. Thus, the court acted beyond its power by declaring All Minerals' relocation of the claims invalid. The court should not have nullified the relocation of the claims, and the federal laws should be applied to determine superior title to the claims.\\nConclusion\\nWe have considered the parties' other contentions on appeal, and we find either that they are without merit or that we need not reach them because of the resolution above. The district court attempted to nullify All Minerals' relocation of the mining claims even though the nullification was beyond the court's power under the circumstances of this case. Therefore, we reverse the order of the district court and remand for further proceedings consistent with this opinion.\\nThe federal government required that each mining claimant file an affidavit of labor with the BLM in order to show that the claimant had not abandoned the mine. Failure to file would result in an automatic finding of abandonment and forfeiture of mining rights.\"}"

nev/4787933.json

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+"{\"id\": \"4787933\", \"name\": \"RICHARD R. SUTHERLAND, Appellant, v. EARL L. GROSS, and EARL L. GROSS, TRUSTEE OF LAS VEGAS 70, LTD., EXCHANGE TRUST, JACK M. and PENNY COPELAND, PHILIP D. GRAY, and PHILIP D. GRAY REALTY, INC., DENNIS D. BROWN, WESTERN REALTY VENTURES, INC., Respondents\", \"name_abbreviation\": \"Sutherland v. Gross\", \"decision_date\": \"1989-04-25\", \"docket_number\": \"No. 19070\", \"first_page\": 192, \"last_page\": 198, \"citations\": \"105 Nev. 192\", \"volume\": \"105\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T21:47:13.004354+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"RICHARD R. SUTHERLAND, Appellant, v. EARL L. GROSS, and EARL L. GROSS, TRUSTEE OF LAS VEGAS 70, LTD., EXCHANGE TRUST, JACK M. and PENNY COPELAND, PHILIP D. GRAY, and PHILIP D. GRAY REALTY, INC., DENNIS D. BROWN, WESTERN REALTY VENTURES, INC., Respondents.\", \"head_matter\": \"RICHARD R. SUTHERLAND, Appellant, v. EARL L. GROSS, and EARL L. GROSS, TRUSTEE OF LAS VEGAS 70, LTD., EXCHANGE TRUST, JACK M. and PENNY COPELAND, PHILIP D. GRAY, and PHILIP D. GRAY REALTY, INC., DENNIS D. BROWN, WESTERN REALTY VENTURES, INC., Respondents.\\nNo. 19070\\nApril 25, 1989\\n772 P.2d 1287\\nMarquis, Haney & Aurbach, and William I Martin, Las Vegas, for Appellant.\\nDeaner, Deaner & Scann, Las Vegas, for Respondents Gross and Las Vegas 70.\\nWilliam L. McGimsey, Las Vegas, for Respondents Copelands, Gray, Gray Realty, and Western Realty Ventures.\\nDennis D. Brown, Newark, CA, In Proper Person.\", \"word_count\": \"1917\", \"char_count\": \"12469\", \"text\": \"OPINION\\nPer Curiam:\\nFACTS\\nAll parties in this case at one time had a property interest in the Desert Pines Apartments, also known as the Fremont Arms Apartments (Apartments). Respondent Earl Gross, as trustee for Las Vegas 70, Ltd., Exchange Trust, entered into a contract to sell the Apartments to respondents Jack and Penny Copeland. Because the sale involved a real estate installment contract, Las Vegas 70 retained legal title to the Apartments.\\nOn November 13, 1984, the Copelands conveyed the Apartments to appellant Richard Sutherland by way of a subcontract of sale. On that same date, the Copelands assigned a 10.2 percent interest in the Sutherland subcontract to their realtor, respondent Philip D. Gray Realty, Inc., in satisfaction of the real estate commission.\\nOn September 1, 1985, Sutherland assigned his interest in the Apartments to respondent Dennis Brown. Brown assumed the first mortgage to Las Vegas 70, assumed the obligations to the Copelands, and agreed to pay Sutherland $600,000 on or before September 1, 1990.\\nFinally, on December 13, 1985, Brown transferred his interest in the Apartments to respondent Western Realty Ventures, Inc. for $30,000. Gray Realty owned all of Western's stock, and respondent Philip Gray and his wife were the sole officers and directors of Western.\\nIn all of the conveyances previously described, each contract contained a waiver of personal liability. The provision stated that the vendee would assume no personal liability as a result of a breach of the agreement. Instead, the seller would look only to the real property for its security and payments.\\nWhile Sutherland possessed the property, a dispute arose between himself and the Copelands. Consequently, they executed a release and settlement agreement which provided for a monthly rental subsidy of $215 for every vacant unit in excess of six. The Copelands agreed to reimburse Sutherland for a total of 300 vacant units in exchange for Sutherland using his best efforts to rent the Apartments.\\nOnce Sutherland transferred the property to Brown, all payments to Las Vegas 70 and the Copelands ceased. The Copelands' legal counsel and Las Vegas 70 notified Sutherland and Brown that they were in default on their contracts.\\nAfter several months of negotiations among the parties, respondents had a meeting on December 13, 1985. At that meeting, respondents entered into numerous transactions, including Brown's conveyance of the Apartments to Western.\\nOnce Western obtained its interest in the Apartments, Gross, as trustee for Las Vegas 70, instituted this quiet title action. Sutherland filed a counterclaim and a cross-claim, including the following allegations: that respondents intentionally conspired to interfere with his contractual relations with Brown; that Gross, the Copelands and Gray conspired to cause Brown to breach a power of attorney which Brown accepted from Sutherland; and that Sutherland loaned $25,000 to Brown which Brown agreed to repay on demand. The Copelands filed a cross-claim against Sutherland alleging that he breached the release and settlement agreement.\\nThe district court quieted title in Las Vegas 70 as against the defendants, denied all the relief sought by Sutherland, and awarded the Copelands $15,480 for vacancy allowances paid for a time when Sutherland failed to use his best efforts to rent the Apartments.\\nRELEASE AND SETTLEMENT AGREEMENT\\nThe district court found that in July 1985, Sutherland began to change the Apartments from monthly rental units to an overnight lodging facility for tour groups. Consequently, Sutherland breached the release and settlement agreement when he did not use his best efforts to rent the Apartments. Therefore, the district court concluded that Sutherland was unjustly enriched by the sum of $15,480, the amount of rental subsidy which the Copelands paid to Sutherland for the vacancies during July and August 1985.\\nOn appeal, Sutherland contends that no evidence sustains the district court's finding that he did not use his best efforts to rent the Apartments during July and August 1985. He maintains that the only people with personal knowledge of the rentals were himself and Jack Griffin, the Apartments' manager. Griffin testified that Sutherland did not talk to him about evicting tenants until August 1985. Sutherland also testified that the conversion did not begin until September 1985.\\nHowever, Brown testified that when he and Sutherland visited the property in mid-September 1985, it was nearly vacant. Brown further stated that Sutherland told him that the Apartments were vacated 60 to 90 days prior to their visit to facilitate the conversion to a motel operation. Moreover, a summary of an October 1985 conversation between the Copelands and the Griffins, introduced into evidence at trial, contradicted Jack Griffin's trial testimony. The summary indicated that Sutherland ordered the Apartments emptied and no new rents taken after July 1, 1985.\\nThis court will not set aside findings of fact unless clearly erroneous. NRCP 52(a). Moreover, when the evidence conflicts, we will not disturb the factual findings of the trial court. Sherman Gardens Co. v. Longley, 87 Nev. 558, 562, 491 P.2d 48, 51 (1971). Although the evidence conflicts on this issue, the record supports the district court's ruling that in July 1985, Sutherland breached the release and settlement agreement. Accordingly, the trial court correctly entered judgment in favor of the Copelands for $15,480.\\nCONSPIRACY TO INTENTIONALLY INTERFERE WITH CONTRACTUAL RELATIONS\\nOn appeal, Sutherland contends that Gross, the Copelands, Gray and Western conspired to interfere with Sutherland's installment contract with Brown. He argues that we should set aside the district court's finding to the contrary as clearly erroneous. We disagree.\\nAn actionable conspiracy consists of a combination of two or more persons who, by some concerted action, intend to accomplish an unlawful objective for the purpose of harming another, and damage results from the act or acts. Collins v. Union Fed. Savings & Loan, 99 Nev. 284, 303, 662 P.2d 610, 622 (1983).\\nTo establish intentional interference with contractual relations, the plaintiff must show: (1) a valid and existing contract; (2) the defendant's knowledge of the contract; (3) intentional acts intended or designed to disrupt the contractual relationship; (4) actual disruption of the contract; and (5) resulting damage. Ramona Manor Convalescent Hosp. v. Care Ent., 225 Cal.Rptr. 120, 124 (Ct.App. 1986).\\nSutherland asserts that when Brown acquired the Apartments, Brown intended to pay Sutherland $600,000 in accordance with his contractual obligations. But, after the December 13, 1985 meeting, Brown no longer intended to pay that $600,000 since he assigned his rights and obligations under the contract to Western. Additionally, Sutherland argues that Western had no intention to pay any portion of the $600,000 due him. Thus, Sutherland contends that the effect of respondents' conspiracy, with Western acquiring the property, and Brown, the Copelands and Gray agreeing not to interfere with Gross' quiet title action, was to eliminate Sutherland's interest in the Apartments.\\nIn its findings of fact, the district court noted that the Apartments' rental records during the ten month period in which Sutherland owned the property disclosed that the business operated at a loss. Moreover, the records showed that Sutherland made a substantial infusion of capital into the property during this time.\\nNotwithstanding the Apartments' financial condition, the subcontract of sale between Sutherland and Brown required Brown to pay $600,000 to Sutherland in addition to assuming the obligations to Las Vegas 70 and the Copelands. Consequently, the trial court found that this subcontract \\\"incorporates values that are non-existent and obligations that were never intended to be honored or paid.\\\" Therefore, the court concluded that Sutherland's only rights were those he received from the Copelands by way of this contract.\\nThe district court observed that Sutherland's rights in the Apartments did not change with the December 13 meeting. Both before and after the meeting, Sutherland's only remedy in case of default was to take possession of the property and to look to the property for any and all liability. Consequently, Sutherland failed to show that he suffered any actual harm as required in order to prove a conspiracy to intentionally interfere with contractual relations.\\nFindings of fact are reversible only if clearly erroneous. NRCP 52(a). As well, substantial evidence to support the district court's determinations, and thus, the constraints of the appellate process preclude us from disturbing the court's conclusion that respondents did not conspire to intentionally interfere with contractual relations. Leavitt v. Leisure Sports, Inc., 103 Nev. 81, 89, 734 P.2d 1221, 1226 (1987).\\nSUTHERLAND'S FIFTH CLAIM FOR RELIEF AGAINST BROWN\\nThe district court's judgment provided that Sutherland's counterclaims against Gross and his cross-claims against the other defendants were dismissed with prejudice. But, Brown failed to respond to Sutherland's cross-claims. Consequently, the clerk filed an entry of judgment against Brown.\\nOn appeal, Sutherland argues that Brown's failure to answer constituted an admission of the complaint. Based on those allegations, Sutherland contends that he is entitled to a judgment against Brown for conspiring with Gross, Gray and the Cope-lands to deprive Sutherland of his interest in the Apartments. Moreover, Sutherland maintains that during November 1985, Brown accepted a power of attorney from Sutherland to consummate a sale of Sutherland's interest in the property. Instead, Brown negotiated a deal which resulted in the sale of Brown's interest for $30,000 cash, without any payment to Sutherland. Thus, Sutherland argues that the conspiracy caused Brown to breach his fiduciary duty to Sutherland. Finally, Sutherland claims that Brown failed to repay Sutherland $25,000 which he advanced for expenses in renovating the property during the time when Brown owned the Apartments.\\nHowever, the answer of a co-defendant inures to the benefit of a defaulting defendant when there exists a common defense as to both of them. Paul v. Pool, 96 Nev. 130, 132, 605 P.2d 635, 636 (1980). Likewise, when the defenses interposed by the answering co-defendant call into question the validity of plaintiff's entire cause of action and when such defenses prove successful, the defenses inure to the benefit of the defaulting co-defendant. Kooper v. King, 15 Cal.Rptr. 848, 852 (Ct.App. 1961) (citations omitted). Consequently, the plaintiff cannot take judgment against the defendant in default. Id.\\nIn the instant case, the respondents, other than Brown, answered Sutherland's counterclaims and cross-claims, and they successfully defended the allegations against them. The district court concluded that no conspiracy existed among Gross, the Copelands, Gray and Western to interfere with the contractual relationship between Sutherland and Brown. As well, the court concluded that Sutherland failed to meet his burden of proving his claims for quiet title and conspiracy to breach a fiduciary duty. Therefore, the district court properly dismissed these claims against Brown as well as the other respondents.\\nHowever, Sutherland's fifth claim for relief demanded from Brown $25,000 advanced to him. Since no common defense existed between Brown and the other respondents as to this claim, Brown could not benefit from their successful defense. Accordingly, we reverse the district court's dismissal with prejudice of Sutherland's fifth claim for relief against Brown, and we remand this claim for proceedings consistent with our opinion. We affirm the district court's judgment in all other respects.\"}"

nev/4797095.json

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+"{\"id\": \"4797095\", \"name\": \"JOHN T. GOJACK, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, Respondent, MARY LEE GOJACK, Real Party in Interest\", \"name_abbreviation\": \"Gojack v. Second Judicial District Court\", \"decision_date\": \"1979-06-14\", \"docket_number\": \"No. 11682\", \"first_page\": 443, \"last_page\": 446, \"citations\": \"95 Nev. 443\", \"volume\": \"95\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T19:49:08.259468+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mowbray, C. J., and Thompson, Gunderson, and Batjer, JJ., concur.\", \"parties\": \"JOHN T. GOJACK, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, Respondent, MARY LEE GOJACK, Real Party in Interest.\", \"head_matter\": \"JOHN T. GOJACK, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, Respondent, MARY LEE GOJACK, Real Party in Interest.\\nNo. 11682\\nJune 14, 1979\\n596 P.2d 237\\nWhite & Spaulding, Ltd., Reno, for Petitioner.\\nGuild, Hagen & Clark, Ltd., Reno, for Real Party in Interest.\", \"word_count\": \"1059\", \"char_count\": \"6425\", \"text\": \"OPINION\\nBy the Court,\\nManoukian, J.:\\nJohn T. and Mary Lee Gojack were married in May, 1969. In August, 1978, Mary filed her complaint for divorce alleging incompatibility as the ground, NRS 125.010(3), and requesting that the community property of the parties be determined by the court. John answered the complaint denying incompatibility and asked that the complaint be dismissed. Absent dismissal, he seeks an equitable distribution of the property.\\nTrial was originally set for three days, to commence on July 30, 1979. On February 13, 1979, Mary moved the court for summary judgment on the divorce. John opposed the motion, and summary judgment was denied. Thereafter, on March 16, 1979, the district court, sua sponte, ordered a bifurcated trial with the hearing on the divorce set for March 21, 1979, and trial on the determination of the property rights scheduled for the original trial date, July 30, 1979.\\nOn March 20, 1979, John filed the instant petition in prohibition challenging the jurisdiction of the trial court to determine the issues of divorce and property at different times. All proceedings in the lower court have been stayed pending our review.\\n1. The writ of prohibition, NRS 34.320, is proper in all cases to arrest the proceedings of an inferior tribunal when such proceedings are without or in excess of its jurisdiction and there is no plain, speedy and adequate remedy in the ordinary course of law. NRS 34.330; Nev. Const, art. 6, sec. 4. Since an order bifurcating trial is not appealable, NRAP 3A(b), and there exists no plain, speedy and adequate legal remedy, in the ordinary course of law, we turn to consider whether the lower court acted in excess of its jurisdiction.\\n2. Petitioner contends that irrespective of the authority of\\nthe district court to control the course and conduct of the proceedings before it, NRCP 42(b), NRS 50.115(1), in the context of an action for divorce there can be but one final judgment or decree which disposes of all the issues properly beiore the court. NRS 125.150(1). Respondent answers, contending that NRCP 42(b), which provides for separate trials, gives the trial court discretion to proceed as it did here. Although a trial court is authorized to conduct separate evidentiary hearings on any issue, that court is without jurisdiction to enter a final decree of divorce without contemporaneously disposing of the community property of the parties.\\nNRS 125.150(1) provides that \\\"[i]n granting a divorce, the court may award alimony . . . and shall make [a] disposition of the community property of the parties. .\\\" (Emphasis added.) The statute is clear that when a trial court proceeds to enter a judgment or decree of divorce, it shall contemporaneously dispose of the community property of the parties. Plain and unambiguous in its terms, the statute needs no interpretation. State ex rel. P.S.C. v. District Court, Etc., 94 Nev. 42, 574 P.2d 272 (1978). Petitioner's argument is further supported by NRS 125.130(1), which provides the judgment of divorce shall be a final decree, and NRS 125.130(2), which states that the decree shall fully and completely dissolve the marriage contract as to both parties.\\nWe here perceive no reason for a departure from the statutory mandates. Indeed, such a departure would lead to numerous problems inevitably flowing from an interim divorce decree, including the effect of such a decree upon the character of the property of the parties and whether following entry of the decree, the property is thereafter held by the parties as tenants in common. See Ellett v. Ellett, supra; Bank v. Wolff, 66 Nev. 51, 202 P.2d 878 (1949). Questions relating to the allocation of rents, profits and taxes, as well as the effect of the subsequent death or remarriage of one or both of the parties prior to the distribution hearing, Bank v. Wolff, supra, not to mention the adverse effect of such a decree on property settlement or reconciliation possibilities, are concerns our legislature may have had in providing that the issues of divorce and property are to be contemporaneously determined.\\nOn the basis of what we find to be a rather clear statutory mandate, we conclude that in the context of this divorce proceeding, respondent is without legal authority to enter divisible judgments. To the extent that the March 16, 1979 order bifurcating trial can be read to permit the trial court to enter a final divorce decree without contemporaneously determining property and related rights and responsibilities of the parties, such order is beyond the court's power to enter. NRS 125.150(1). However, this opinion does not preclude the lower court from hearing, at separate times, evidence relevant to the issue of divorce and evidence relevant to the issue of the property distribution.\\nLet the writ issue.\\nMowbray, C. J., and Thompson, Gunderson, and Batjer, JJ., concur.\\nNRCP 42(b) provides:\\nThe court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury.\\nNRS 50.115 provides, in relevant part:\\n1. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence:\\n(a) To make the interrogation and presentation effective for the ascertainment of the truth;\\n(b) To avoid needless consumption of time; and\\n(c) To protect witnesses from undue harassment or embarrassment.\\nIn so holding, we emphasize that here the order bifurcating trial of the issues was not entered pursuant to a stipulation between the parties, a proper and timely objection to the order was made and there exists a genuine controversy as to the issues. Cf. Ellett v. Ellett, 94 Nev. 34, 573 P.2d 1179 (1978), where the parties stipulated to separate trials on the issues but no final judgment was entered until the close of all the proceedings.\"}"

nev/4809558.json

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+"{\"id\": \"4809558\", \"name\": \"ANTONIO WAYNE WOOD, Appellant, v. THE STATE OF NEVADA, Respondent\", \"name_abbreviation\": \"Wood v. State\", \"decision_date\": \"1981-08-10\", \"docket_number\": \"No. 11531\", \"first_page\": 363, \"last_page\": 367, \"citations\": \"97 Nev. 363\", \"volume\": \"97\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T21:03:26.103139+00:00\", \"provenance\": \"CAP\", \"judges\": \"Gunderson, C. J., and Batjer, Springer, and Mowbray, JJ., concur.\", \"parties\": \"ANTONIO WAYNE WOOD, Appellant, v. THE STATE OF NEVADA, Respondent.\", \"head_matter\": \"ANTONIO WAYNE WOOD, Appellant, v. THE STATE OF NEVADA, Respondent.\\nNo. 11531\\nAugust 10, 1981\\n632 P.2d 339\\nWilliam N. Dunseath, Public Defender, and Michael B. McDonald, Deputy Public Defender, Washoe County, for Appellant.\\nRichard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney, and Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.\", \"word_count\": \"1404\", \"char_count\": \"8790\", \"text\": \"OPINION\\nBy the Court,\\nManoukian, J.:\\nA jury convicted Antonio Wayne Wood for the suffocation death of his four and one-half month old son, a felony. NRS 200.030. On appeal, appellant's sole contention is that the state violated standards of due process by failing to preserve sufficient of the victim's brain tissue specimens, evidence relevant to the cause of death. Although we agree that negligence occurred resulting in the loss of some evidence, such does not require reversal.\\nOn March 19, 1978, Antonio Wood was left in charge of his son, Joseph, and his daugther, Christina (age nineteen months), while his wife went to a nearby laundromat. At 4:24 p.m., a person who identified himself as Tony Wood, called the Sparks Police Department requesting assistance in contacting his wife at the laundromat because his son was having difficulty breathing.\\nWhen Linda Wood returned to the apartment she found Joseph unconscious in his crib. The child was rushed to Washoe Medical Center, where Joseph was found to have no pulse and no spontaneous respiration. Through emergency procedures, a pulse was restored, although respiration depended upon life support systems. Joseph's condition was characterized as a brain damage coma, and after 48 hours in intensive care, having never regained consciousness, he died.\\nWood initially maintained to police that Christina had crawled into the crib with Joseph and crawled on top of the baby apparently pushing his face into a diaper preventing his breathing. The medical symptoms were consistent with some type of suffocation. Wood, during police interviews, subsequently recanted his story and admitted that he had placed a diaper over Joseph's mouth for a prolonged period of time to quiet his crying. This prosecution ensued.\\nTo prove motive and intent, the state introduced evidence of Wood's conversations with a co-employee about methods of killing a person in order to collect life insurance proceeds, and that Wood had purchased life insurance on Joseph's life. Wood had told the co-employee that he had previously attempted to kill his wife, and continued to discuss different ways that he might kill either his wife or one of his children or all of them. During the week preceding March 19, 1978, Wood told this co-employee that he had to do something soon, and that he shouldn't be surprised \\\"if I [Wood] don't show up for work on Monday.\\\"\\nThe defense maintained that the resultant death of Joseph was unintentional and that the death was not caused by strangulation but rather by some other medical phenomenon. Dr. Ellis, a board-certified neurologist and neuropathologist, specializing in the pathology of brain diseases in children, was called as an expert witness on behalf of Wood. Dr. Ellis testified that the brain of the deceased child did exhibit oxygen deficiency (anoxia), but that several processes producing such anoxia could have been initiated by the placing of the diaper over the mouth of the child for a brief period of time. Dr. Ellis disagreed with Dr. Campbell, who performed the autopsy, that the \\\"immediate cause of death was due to the suffocation,\\\" and described four mechanisms which would retard the spontaneous respiration reflex, thus rendering the resultant death unintentional. The four mechanisms described by Dr. Ellis were: (1) continued obstruction of the airway; (2) laryngospasm; (3) vasovagal reflex, and (4) seizure.\\nBased upon his examination of the tissue samples preserved by the state, Dr. Ellis discounted the continued obstruction theory (suffocation) due to lack of bruises, coupled with his determination that the amount of brain damage was less than expected from his assessment of the history of the case. Dr. Ellis admitted that because he did not have specimens from the correct areas of the brain, his alternate explanations were merely theories. Nevertheless, he remained adamant that there was too much evidence to summarily dismiss the seizure theory. Claiming that the failure to preserve sufficient tissue samples to prove this alternate theory was a violation of his due process rights, Wood appeals.\\nWe have often held that where evidence is lost as a result of inadequate governmental handling, a conviction may be reversed. Crockett v. State, 95 Nev. 859, 603 P.2d 1078 (1979); Howard v. State, 95 Nev. 580, 600 P.2d 214 (1979); Williams v. State, 95 Nev. 527, 598 P.2d 1144 (1979). See also United States v. Heiden, 508 F.2d 898 (9th Cir. 1974). The test for reversal on the basis of lost or destroyed evidence we have heretofore relied upon was enunciated in Crockett v. State, supra, and requires that the appellant show either \\\"(1) bad faith or connivance on the part of the government, or (2) prejudice from its loss.\\\" This standard was derived from the case of United States v. Heiden, supra, which was recently broadened in the case of United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979). The state urges us to reexamine our established standard and to adopt the Loud Hawk approach. However, in the context of this case, we find it unnecessary to adopt the \\\"balancing approach\\\" announced in Loud Hawk.\\nIn the instant case, the record is silent as to any connivance or bad faith on the part of the state to preserve evidence. Indeed, appellant has stipulated to the absence thereof. Dr. Campbell, the State's pathologist, testified that storage problems prevented preservation of whole organs, so that representative samples from each organ are usually taken and preserved. Although he admitted that a neuropathologist would be most qualifed to examine brain tissues for changes, and that he knew the case would be \\\"one for investigation\\\" since the autopsy findings were likely to be non-specific, he nevertheless stated that he saved only four tissue samples of the brain. Any culpability on the part of the state consists only of the state's negligence in failing to adhere to established pathological standards. See footnote 2, supra.\\nAppellant asserts that the failure to preserve tissue of certain areas of the brain is \\\"critical evidence\\\" concerning the cause of death to the deceased, and that as in Crockett v. State, 95 Nev. at 865, 603 P.2d at 1082, \\\"scientific verification is forever foreclosed because the government did not properly preserve the [evidence].\\\" This, appellant maintains, meets the burden enunciated in Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979), that it is \\\"reasonably anticipated that the evidence sought would be exculpatory and material to appellant's defense.\\\" However, contrary to Crockett and Boggs, the evidence here was not \\\"direct exculpatory evidence,\\\" but merely evidence which Wood's expert opined would have helped confirm one of the alternate theories of death. During cross-examination, relative to the defense's alternate theory of death, Dr. Ellis conceded that the only evidence of seizure activity was the changes in Joseph's brain, and that before the March 19 incident there was no history of any seizures and that under any theory that the initiating cause of death was the placing of the diaper over the child's mouth.\\nAlthough the prosecution's case was largely circumstantial, in weighing the totality of the circumstances, including appellant's incriminating statements, his remarks to the co-employee, the fact that both the state and the accused presented extensive medical testimony and the extensive cross-examination by defense counsel, Wood's due process rights were not violated. The factual inferences that the additional tissue samples might have raised, were treated by the appellant's expert witness as alternate theories'and although analysis of the unavailable tissue samples may have given more credibility to one of the alternative theories, their absence did not work to deprive appellant of his due process rights.\\nThe judgment of conviction is affirmed.\\nGunderson, C. J., and Batjer, Springer, and Mowbray, JJ., concur.\\nThis is the reflex action which causes the resumption of breathing in an unconscious person if nothing else is present to interfere with the breathing mechanism.\\nDr. Campbell testified that he removed approximately four tissue samples from the brain. Dr. Ellis indicated that he found cells from five or six different areas of the brain. The United States Armed Forces Institute of Pathology lists as essential seven specific brain areas for the examination.\"}"

nev/4810145.json

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+"{\"id\": \"4810145\", \"name\": \"BRIAN PATRICK HERN, Appellant, v. THE STATE OF NEVADA, Respondent\", \"name_abbreviation\": \"Hern v. State\", \"decision_date\": \"1981-10-27\", \"docket_number\": \"No. 12319\", \"first_page\": 529, \"last_page\": 534, \"citations\": \"97 Nev. 529\", \"volume\": \"97\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T21:03:26.103139+00:00\", \"provenance\": \"CAP\", \"judges\": \"Gunderson, C. J., and Batjer, Mowbray, and Springer, JJ., concur.\", \"parties\": \"BRIAN PATRICK HERN, Appellant, v. THE STATE OF NEVADA, Respondent.\", \"head_matter\": \"BRIAN PATRICK HERN, Appellant, v. THE STATE OF NEVADA, Respondent.\\nNo. 12319\\nOctober 27, 1981\\n635 P.2d 278\\nGerald W. Hardcastle, Las Vegas, for Appellant.\\nRichard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and James Tufteland and Ronald C. Bloxham, Deputy District Attorneys, Clark County, for Respondent.\", \"word_count\": \"1488\", \"char_count\": \"9159\", \"text\": \"OPINION\\nBy the Court,\\nManoukian, J.:\\nAppellant Hern was convicted by jury of first degree murder. From the judgment and sentence fixing his punishment at life imprisonment without the possibility of parole, he appeals. The sole issue requiring our consideration is whether the homicide committed by appellant constituted first or second degree murder. On review of the record, we affirm.\\nOn February 17, 1979, Hern beat to death Curtis Wayne Fausett, three years of age, the son of Kimla Huddleston. Hern had lived with Huddleston since January of 1978. During the evening of February 17, Huddleston left for her employment, leaving Hern in charge of Curtis.\\nAlthough the record shows generally that Hern's relationship with Curtis was equivalent to a father-son relationship, it also reveals that Hern had physically beaten the child on a number of prior occasions to such an extent as to constitute child abuse. Indeed, he had agreed with Huddleston to refrain from any physical discipline of the child. On the date in question, however, and during the mother's absence, when Curtis spilled some milk, Hern began to \\\"spank\\\" the child. The \\\"spanking\\\" transcended the limits of reasonable discipline and developed into a severe beating which is the undisputed cause of the child's death. The medical cause of death was internal hemorrhaging.\\nAppellant contends that there was no evidence introduced at trial to establish that Curtis' death was a result of a willfull, deliberate, and premeditated act on his part, as required by NRS 200.030(1 )(a). Specifically, he claims that if he is guilty of murder at all, it must be murder in the second degree. Authority for this court to modify the judgment appealed from is found in NRS 177.265.\\nThe determination of the degree of crime is almost invariably left to the discretion of the jury. On appeal, we are confined to reviewing the evidence most favorably in support of its determination. Azbill v. State, 88 Nev. 240, 252, 495 P.2d 1064, 1072 (1972); State v. Ah Tom, 8 Nev. 213, 217 (1873). Although Hern argues and we acknowledge that the jury's discretion is not absolute, Azbill, supra, at 252; Ah Tom, supra, at 217; People v. Tubby, 207 P.2d 51, 54, (Cal. 1949), the jury must be given the right to make logical inferences which flow from the evidence. See Dearman v. State, 93 Nev. 364, 367, 566 P.2d 407, 409 (1977). The applicable standard of review is well established. The issue is not whether this court would have found beyond a reasonable doubt th\\u00e1t appellant was guilty of first degree murder, but whether the jury, acting reasonably, could have been convinced to that certitude by the evidence it had a right to consider. See Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980); see also Jackson v. Virginia, 443 U.S. 307 (1979). \\\"Where there is substantial evidence in the record to support the verdict of the jury, it will not be overturned by an appellate court.\\\" Tellis v. State, 85 Nev. 679, 679-80, 462 P.2d 526, 527 (1969). We turn now to determine whether respondent met its burden in proving first degree murder or whether a verdict for a lesser included degree was required.\\nMurder, and this includes murder of the first degree as well as murder in the second degree, is defined as the \\\"unlawful killing of a human being with malice aforethought.\\\" NRS 200.010. The critical question confronting us is whether, upon a review of the evidence most favorably in support of the judgment, Azbill, supra, at 252, 495 P.2d at 1072, a reasonable interpretation indicates a sufficiency of evidence to establish that the homicide was murder of the first degree, as distinguished from murder in the second degree. To make this determination, we must clearly distinguish the two degrees of murder.\\nAlthough leaving much to the discretion of the jury, the legislature, in defining degrees of murder, requires the exercise of that discretion to be sufficiently supported by the facts. NRS 200.030(2)(a) and (b) provide that:\\n2. Murder of the first degree is murder which is:\\n(a) Perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing;\\n(b) Committed in the perpetration or attempted perpetration of rape, kidnaping, arson, robbery, burglary or sexual molestation of a child under the age of 14 years. . . . (Emphasis added.)\\nNRS 200.030(2) defines murder of the second degree as comprehending \\\"all other kinds of murder.\\\"\\nThe homicide under consideration was clearly not perpetrated by any of the specifically characterized means, such as poisoning, nor was it committed in the perpetration of any of the enumerated felonies. Therefore, to constitute first degree murder, it must fall within the category of \\\"any other kind of willful, deliberate, and premeditated killing.\\\"\\nMalice is not synonymous with either deliberation or premeditation. To view it otherwise would obliterate the distinction between the two degrees of murder. Malice aforethought is an element of the crime of murder, but malice aforethought and premeditated homicide is murder in the first degree; intentional homicide without premeditation is, in the absence of legally cognizable provocation or mitigating circumstances, murder in the second degree.\\nIt is clear from the statute that all three elements, willfulness, deliberation, and premeditation, must be proven beyond a reasonable doubt before an accused can be convicted of first degree murder. Compare, State v. Wong Fun, 22 Nev. 336, 40 P. 95 (1895).\\nHern testified that he remembered grabbing the child and starting to spank him and that his next memory was standing over the child's body. In addition to this testimony, a defense psychiatrist testified that being a child abuse victim himself, appellant may not have had the intent to kill the child or the ability to premeditate. Other testimony was introduced showing that Hern evidenced affection for the victim. From this, the appellant concludes that insufficient evidence was presented to convict him of first degree murder. We remain unpersuaded.\\nProsecution testimony was presented that appellant lied to paramedics at the scene concerning the circumstances surrounding the death. Other evidence involved an admission by appellant that he beat and kicked the victim prior to the child's death. Immediately upon being informed of the child's death, and in the presence of the appellant, the mother yelled at Hern, \\\"Now you finally did it, you killed him.\\\" The autopsy, analyzed by Dr. Giles Sheldon Green, a Clark County medical examiner, showed that Curtis died of internal hemorrhage resulting from injury to the liver. External examination of the child's body further disclosed approximately thirty bruises, including to the head, chest, penis, abdomen, back, buttock, thighs and lower legs, anus and arms. Based on the abrasions and bruises he observed on the child's body, Dr. Green concluded that Curtis was a victim of child abuse.\\nFrom the appellant's instant and previous abuse of Curtis, leading inexorably to his death, the jury could find that premeditation, or fixed purpose to kill, requisite for first degree murder, was formed prior to his death. Therefore, it was permissible for the jury to find that Hern formed an intent to kill through the extreme physical abuse, and that appellant caused the death with premeditation. The nature and extent of the injuries, coupled with repeated blows, constitutes substantial evidence of willfulness, premeditation and deliberation. See Turpen v. State, 94 Nev. 576, 578, 583 P.2d 1083, 1084, cert. denied, 439 U.S. 968 (1979).\\nPremeditation is generally established by circumstantial evidence. Direct evidence is not required. See Dearman v. State, 93 Nev. 364, 367, 566 P.2d 407, 409. Malice aforethought, and premeditation may be deduced from the circumstances of the killing, such as the use of certain means calculated to produce death. Moser v. State, 91 Nev. 809, 812, 544 P.2d 424, 426 (1976). The jury must be given the prerogative to make logical, inferences derived from the evidence. We should not, and will not, interfere with a jury determination which is supported by substantial evidence. See Curtis v. State, 93 Nev. 504, 507, 568 P.2d 583, 584-85 (1977). Any other result would leave prosecutors, defenders and judges without guidance in such cases. If the result were to the contrary, then absent direct evidence of premeditation, a first degree murder conviction would be most difficult, if not impossible, to obtain if the victim is a child who has not been killed with a gun or other dangerous weapon \\u2014 but severely beaten, as in the instant case.\\nWe find the remaining issues to be without merit.\\nThe conviction for first degree murder is affirmed.\\nGunderson, C. J., and Batjer, Mowbray, and Springer, JJ., concur.\"}"

nev/4815855.json

@@ -0,0 +1 @@
+"{\"id\": \"4815855\", \"name\": \"FREDA LEGGETT, Appellant, v. THE ESTATE OF SIDNEY LEGGETT, and J. BRICE LEGGETT, the Executor Thereof, Respondents; FREDA LEGGETT, Appellant, v. J. BRICE LEGGETT, Executor of the Estate of SIDNEY LEGGETT, Deceased, J. BRICE LEGGETT and LESLIE A. LEGGETT, Respondents\", \"name_abbreviation\": \"Leggett v. Estate of Leggett\", \"decision_date\": \"1972-03-01\", \"docket_number\": \"No. 6549; No. 6627\", \"first_page\": 140, \"last_page\": 146, \"citations\": \"88 Nev. 140\", \"volume\": \"88\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-11T00:54:38.223031+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mowbray and Thompson, JJ., concur.\", \"parties\": \"FREDA LEGGETT, Appellant, v. THE ESTATE OF SIDNEY LEGGETT, and J. BRICE LEGGETT, the Executor Thereof, Respondents. FREDA LEGGETT, Appellant, v. J. BRICE LEGGETT, Executor of the Estate of SIDNEY LEGGETT, Deceased, J. BRICE LEGGETT and LESLIE A. LEGGETT, Respondents.\", \"head_matter\": \"FREDA LEGGETT, Appellant, v. THE ESTATE OF SIDNEY LEGGETT, and J. BRICE LEGGETT, the Executor Thereof, Respondents. FREDA LEGGETT, Appellant, v. J. BRICE LEGGETT, Executor of the Estate of SIDNEY LEGGETT, Deceased, J. BRICE LEGGETT and LESLIE A. LEGGETT, Respondents.\\nNo. 6549\\nNo. 6627\\nMarch 1, 1972\\n494 P.2d 554\\nSylvia J. Thompson, Joseph J. Kay, Jr., of Reno; Cartwright, Saroyan, Martin & Sucherman, Inc., of San Francisco, California, for Appellant.\\nLeslie A. Leggett, of Reno, for Respondents.\", \"word_count\": \"2175\", \"char_count\": \"12953\", \"text\": \"OPINION\\nBy the Court,\\nBatjer, J.:\\nThese two cases were consolidated for the purpose of appeal because the same legal issues are involved in each.\\nFreda Leggett, appellant, and Sidney Leggett were married in Virginia City, Nevada in 1930. At the time of the marriage Sidney Leggett had two children by a previous marriage, J. Brice Leggett and Leslie A. Leggett, who are the respondents in this action. Early in 1964 Sidney Leggett filed an action for divorce. On July 1, 1964, while that divorce action was pending he executed a will devising and bequeathing all of his separate property and his share of the community property to the respondents. Four months after the will was executed a final judgment and decree of divorce was entered granting a divorce and dividing the property between the parties. The appellant was awarded a motel and a trailer park, and Sidney Leggett was awarded two motels, an industrial lot and the family residence. The divorced parties executed the documents necessary for compliance with the judgment of the court, each taking tide to the property awarded as his and her sole and separate property.\\nOn December 31, 1964, approximately one month after the decree of divorce was entered, the parties remarried. The appellant and Sidney Leggett then remained married until Sidney Leggett's death on July 2, 1969.\\nRespondent J. Brice Leggett filed a petition for probate of the decedent's will on August 1, 1969, and the will was admitted to probate two weeks later. The appellant then filed a petition in that probate proceeding asserting that the decedent's will had been revoked as to her by their subsequent marriage and that she was entitled to take from the decedent's estate according the laws of intestacy, and that the property owned by tire decedent at his death was community in nature. The district court entered an order finding that the will was valid inasmuch as the appellant had been \\\"mentioned\\\" and intentionally disinherited by the decedent, and that the property possessed by the decedent at his death was his sole and separate property.\\nThe appellant, apparently questioning the jurisdiction of the district court to make the above determination regarding the validity of the will and the character of decedent's property within the probate proceedings, filed an action for declaratory relief in the district court before the order in the probate proceeding was entered. This action for declaratory relief requested the district court to determine whether the decedent's will was revoked by his subsequent remarriage, and whether or not any community property existed in the decedent's estate. The appellant subsequently filed a motion for summary judgment alleging that no triable issues of fact existed regarding the validity of the decedent's will. This motion was denied and, upon the court's invitation, the respondents filed a motion for summary judgment alleging that no triable issues of fact existed regarding the validity of the will and the nature of the decedent's property. The respondents' motion for summary judgment was granted, and this appeal is taken from that order and the one entered in the probate proceeding.\\nThe decedent, in the distributive clause of his will, provided: \\\"I give, devise and bequeath all my separate property and my proportionate part of and interest in the community property of myself and my wife, Freda Leggett, to my two sons, J. Brice Leggett and Leslie A. Leggett, share and share alike.\\\" The appellant admits that she was mentioned in the will, but she urges this court to adopt the rule announced in In Re Poisl's Estate, 280 P.2d 789 (Cal. 1955), which provides for revocation in situations where an after-acquired spouse is mentioned in the will but the testator has failed to indicate on the face of his will that he contemplates a relationship of marriage with the after-acquired spouse. In construing a statute nearly identical to NRS 133.110, the California Supreme Court has reasoned that public policy requires a testator to bear in mind the possibility of a subsequent marriage and the serious changes in domestic relations resulting therefrom. In Re Poisl's Estate, supra; In Re Axelrod's Estate, 147 P.2d 1 (Cal. 1944). On the other hand, the respondents contend that the appellant was not only mentioned in the will but was mentioned in such a way as to show an intention not to make any provision for her and, as a consequence the will is valid as to her.\\nAt common law, a revocation of a will, because of a subsequent change in the marital status of a person making the will, was based upon an implied intention. See 2 Page on Wills (Bowe-Parker Revision, \\u00a7 21.86 et seq.). In Nevada the doctrine of implied revocation has been superseded by a statutory presumption of revocation. NRS 133.110 provides for the presumptive revocation of a will if the testator marries after executing his will and his spouse survives him, unless he has provided for the surviving spouse by marriage contract, by provision in the will, or has mentioned her in such a way as to show an intention not to provide for her. Although recognizing that the policy underlying the California rule of social disfavor toward a testator's failure to provide for his surviving spouse is sound, we will not engraft, by judicial legislation, additional requirements upon the clear and unambiguous provisions of NRS 133.110. The sole purpose of that statute is to guard against the unintentional disinheritance of the surviving spouse.\\nHere the appellant was mentioned specifically by name and status in the distributive clause of Sidney Leggett's will that disposed of all of his property to his two sons. The testator had her in mind and did not forget her or overlook her. At the time he executed the will he did not unintentionally disinherit her for he intended to give her nothing. See In Re Drown's Estate, 372 P.2d 196 (Wash. 1962); In Re Steele's Estate, 273 P.2d 235 (Wash. 1954); cf. Perkins v. Brown, 27 So.2d 521 (Fla. 1946).\\nUntil such time as our legislature deems it advisable to revise NRS 133.110, we hold that to prevent revocation a spouse must merely be mentioned in such a way as to show an intention not to malee any provision for that person.\\nThe rule of In Re Poisl's Estate, supra, requiring that contemplation of future marriage must appear on the face of the will to prevent revocation as to the person mentioned cannot logically be applied to the facts in this case. It would be ridiculous to hold that Sidney Leggett, in order to insure against revocation of his will, was required not only to mention Freda Leggett in such a way as to show an intention not to make provision for her, but also to provide, on the face of the will, that he contemplated a future marriage with her although he was in the process of obtaining a divorce from her.\\nPursuant to the provisions of NRS 133.110, the only evidence admissible to rebut the presumption of revocation is evidence showing that (1) provision has been made for the spouse by marriage contract, (2) a provision for the spouse has been made in the will, or (3) the spouse has been mentioned in the will in such a way as to show an intention not to make such provision. The appellant claims that the trial court erred in receiving evidence regarding the terms and conditions of the divorce decree, the manner in which the parties treated their own property subsequent to the remarriage and the alleged intent of the testator in not executing a new will after the divorced parties were remarried. It is also asserted by the appellant that the trial court erred in refusing to allow her to introduce evidence regarding the decedent's lack of communication with his sons, which evidence might tend to show that she was unintentionally disinherited. Much of the extrinsic evidence admitted into evidence bore upon the question of the existence of community property and for that purpose it is admissible. Furthermore, the order entered by the district judge makes it clear that he relied solely upon the will itself and not upon any extrinsic evidence when determining that the will upon its face showed an intentional disinheritance of the appellant. In any event the district court reached the correct result. Wyatt v. State, 86 Nev. 294, 468 P.2d 338 (1970).\\nThe lower court granted the respondents' motion for summary judgment and held that the will was not revoked and that no community property was owned by the decedent at his death. Appellant contends that the granting of summary judgment was improper because genuine issues of fact remained undecided, among which were the legal characterization of the assets held by the decedent at his death, and whether or not any community property existed by reason of the labors and efforts of the parties during the remarriage. After receiving oral and documentary evidence, the trial court determined that the property awarded each spouse by the divorce decree became the separate property of each, that separate accounts relative to these properties were maintained during the subsequent marriage and that these properties and the rents, issues and profits therefrom were readily identifiable at the date of decedent's death. Throughout all of the proceedings in the lower court the appellant failed to give any indication of what property held by the decedent at his death must be characterized as community property. Although all inferences must be drawn in favor of Freda Leggett, against whom the order was entered, nevertheless she was required to point out to the district court something indicating the existence of a triable issue of fact. This she failed to do. She was not entitled to have the motion for summary judgment denied on the mere hope that at trial she might be able to discredit the movants' evidence. Bair v. Berry, 86 Nev. 26, 464 P.2d 469 (1970); Thomas v. Bokelman, 86 Nev. 10, 462 P.2d 1020 (1970). Nothing appears in the record to indicate the existence of a genuine issue of material fact, and for that reason the trial court acted properly in granting summary judgment. Polk v. MacMillan, 87 Nev. 526, 490 P.2d 218 (1971).\\nAffirmed.\\nMowbray and Thompson, JJ., concur.\\nNRS 133.110: \\\"If a person marries after making a will and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation shall be received.\\\"\"}"

nev/4816746.json

@@ -0,0 +1 @@
+"{\"id\": \"4816746\", \"name\": \"JOHNSTON, INC., a Texas Corporation, Appellant, v. JACK WEINSTEIN and SANDRA BANKSTON, dba PLAYMATES BY SAUNDRA, INC., Respondents\", \"name_abbreviation\": \"Johnston, Inc. v. Weinstein\", \"decision_date\": \"1972-01-11\", \"docket_number\": \"No. 6559\", \"first_page\": 7, \"last_page\": 9, \"citations\": \"88 Nev. 7\", \"volume\": \"88\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-11T00:54:38.223031+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHNSTON, INC., a Texas Corporation, Appellant, v. JACK WEINSTEIN and SANDRA BANKSTON, dba PLAYMATES BY SAUNDRA, INC., Respondents.\", \"head_matter\": \"JOHNSTON, INC., a Texas Corporation, Appellant, v. JACK WEINSTEIN and SANDRA BANKSTON, dba PLAYMATES BY SAUNDRA, INC., Respondents.\\nNo. 6559\\nJanuary 11, 1972\\n492 P.2d 616\\n[Rehearing denied February 23, 1972]\\nEmilie N. Wanderer, of Las Vegas, for Appellant.\\nJames L. Buchanan II, of Las Vegas, for Respondents.\", \"word_count\": \"414\", \"char_count\": \"2471\", \"text\": \"OPINION\\nPer Curiam:\\nThe appellant filed suit against the respondents for money due from the sale of merchandise, and for punitive damages as a result of allegedly fraudulent representations. After service of process upon the respondents and their failure to timely answer the appellant took a default, and judgment was entered against the respondents on July 29, 1970.\\nOn November 20, 1970, the respondents moved to set aside the judgment. Attached to their motion was an affidavit containing factual assertions to show excusable neglect and what would be a meritorious defense if proven. Also attached to the motion was a document showing that the business of the respondents had been sold prior to the time the appellant's suit was filed, in support of the assertions of the respondents that the debt was not theirs.\\nAfter the appellant's response in opposition to the motion to set aside judgment was filed, and the parties were heard, the district court entered its order setting aside the judgment and giving the respondents a time within which to plead further. It is from that order setting aside the judgment that this appeal is taken.\\nThe sole appellate issue in these circumstances is whether or not the district court abused its discretion in setting aside the default judgment. In the absence of a clear showing of abuse, the action of the court below must be affirmed. Hotel Last Frontier v. Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963); Minton v. Roliff, 86 Nev. 478, 471 P.2d 209 (1970).\\nUpon review of the record on appeal we find that the motion of the respondents to set aside the default judgment, and the affidavit and supporting document attached thereto, set forth sufficient facts upon which the district judge could rule that excusable neglect had been shown, and that they contain allegations which, if proven, would tend to establish a defense to all or part of the asserted claim for relief. Thus we cannot find such a clear showing of abuse of discretion as to warrant a reversal of the order setting aside the judgment. Howe v. Coldren, 4 Nev. 662 (1868); Morris v. Morris, 86 Nev. 45, 464 P.2d 471 (1970).\\nAffirmed.\"}"

nev/4817288.json

@@ -0,0 +1 @@
+"{\"id\": \"4817288\", \"name\": \"FRANCES CLEO DIAZ, Appellant, v. VALU-MART, INC., Respondent\", \"name_abbreviation\": \"Diaz v. Valu-Mart, Inc.\", \"decision_date\": \"1972-10-11\", \"docket_number\": \"No. 6818\", \"first_page\": 546, \"last_page\": 546, \"citations\": \"88 Nev. 546\", \"volume\": \"88\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-11T00:54:38.223031+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FRANCES CLEO DIAZ, Appellant, v. VALU-MART, INC., Respondent.\", \"head_matter\": \"FRANCES CLEO DIAZ, Appellant, v. VALU-MART, INC., Respondent.\\nNo. 6818\\nOctober 11, 1972\\n501 P.2d 650\\nA. D. Demetras, of Reno, for Appellant.\\nErickson & Thorpe, of Reno, for Respondent.\", \"word_count\": \"59\", \"char_count\": \"376\", \"text\": \"OPINION\\nPer Curiam:\\nThe record on appeal fails to disclose that the district court abused its discretion in setting aside the default judgment entered in this action. Accordingly, we affirm.\"}"

nev/4826880.json

@@ -0,0 +1 @@
+"{\"id\": \"4826880\", \"name\": \"........................., A Minor Girl Under the Age of 18 Years of Age, Appellant, v. CLARK COUNTY JUVENILE COURT SERVICES, Respondent\", \"name_abbreviation\": \"A Minor v. Clark County Juvenile Court Services\", \"decision_date\": \"1971-11-24\", \"docket_number\": \"No. 6520\", \"first_page\": 544, \"last_page\": 549, \"citations\": \"87 Nev. 544\", \"volume\": \"87\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T21:55:24.679370+00:00\", \"provenance\": \"CAP\", \"judges\": \"Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.\", \"parties\": \"........................., A Minor Girl Under the Age of 18 Years of Age, Appellant, v. CLARK COUNTY JUVENILE COURT SERVICES, Respondent.\", \"head_matter\": \"........................., A Minor Girl Under the Age of 18 Years of Age, Appellant, v. CLARK COUNTY JUVENILE COURT SERVICES, Respondent.\\nNo. 6520\\nNovember 24, 1971\\n490 P.2d 1248\\nRobert G. Legakes, Public Defender, and Thomas D. Beatty, Deputy Public Defender, Clark County, for Appellant.\\nRobert List, Attorney General, Roy A. Woof ter, District Attorney, and Charles L. Garner, Chief Deputy District Attorney, Clark County, for Respondent.\\nIt is the practice of this court to omit the minor\\u2019s proper name.\", \"word_count\": \"1534\", \"char_count\": \"9279\", \"text\": \"OPINION\\nBy the Court,\\nZenoff, C. J.:\\nThe minor girl, aged 14 at the time, was a student at Gar-side Junior High School in Clark County, Nevada.\\nOn September 17, 1970, during the school term and during a break on a morning when classes were held, the defendant encouraged students, for reasons unknown to us, not to return to their classes following the 8:25 a.m. break. The principal of the school was able, by threat of arrest, to cause all students except the subject minor to return to their classes. Defendant, remaining in the school's quad area after receiving the order to return to class, was placed under arrest for loitering by the principal. Approximately 15 minutes elapsed during the episode, five during the break and ten during the class hour.\\nThe minor was adjudged a delinquent under NRS 201.090, on October 21, 1970, by H. Leon Simon, Referee in Juvenile Department of the Eighth Judicial District.\\nOn a Motion for Rehearing, relief was denied, November 13, 1970, by John F. Mendoza, District Judge. A Formal Probation Order was filed December 3, 1970.\\nThe appellant here challenges the constitutionality of a loitering statute. We do not reach this issue because the Petition to the Juvenile Court was fatally defective for lack of specificity. We hold that the Petition does not adequately apprise the minor of the charges against her, that it would be improper for this court to affirm as the statute alleged to have been violated is unknown to this court, and that the school-connected loitering statutes are inapplicable in this fact situation. Consequently, we reverse and vacate all delinquency proceedings below.\\n1. The instant Petition stated \\\"[t]he facts which bring the child within the purview of this chapter\\\" (NRS 62.130(3) (a) ) as:\\n\\\"That the subject minor, ., is a minor whose behavior is injurious to her health and welfare; in that, on September 17, 1970, at and within the County of Clark, State of Nevada, the subject minor did then and there wilfully and unlawfully loiter at or near Garside Junior High School, 400 South Torrey Pines Drive, Las Vegas, Clark County, Nevada, without legitimate reason to be at leisure in such place.\\\"\\nThe United States Supreme Court in In re Gault, 387 U.S. 1 (1967), a case reviewing state juvenile court proceedings, held that, at 33-34,\\n\\\"Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must 'set forth the alleged misconduct with particularity.'\\n\\\"The 'initial hearing' in the present case was a hearing on the merits. Notice at that time is not timely; and even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we have described \\u2014 that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a youth's freedom and his parents' right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet. Nor, in the circumstances of this case, can it reasonably be said that the requirement of notice was waived.\\\" [Footnotes omitted, our emphasis.]\\nThe fault of the instant Petition lies in the inadequacy of the required notice of specific charges. This fault is particularly significant in this case as there are two school-connected loitering statutes, NRS 207.270 and 393.070. The Petition does not state facts which bring the violation within either statute. In re Walsh, 300N.Y.S.2d 859 (1969).\\nIn Cole v. Arkansas, 333 U.S. 196 (1948), a case in which the state supreme court affirmed a conviction on the ground that the information charged and the evidence showed that petitioner had violated a statute other than the one under which he was tried, the court in reversing said, at 201:\\n\\\"No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issue raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.\\\"\\nThis holding was cited with approval in Gault, at 33, footnote 53.\\n2. It is our further opinion that neither of the school-oriented loitering statutes is applicable to the fact situation presented by this appeal. The issue is whether the Legislature intended the above statutes to be applied in the instant case.\\nNRS 207.270 was enacted in 1963 (1963 Stats, of Nevada, Vol. 1 at 41, amended 1967 Stats, of Nevada, Vol. 1 at 523) under the Act entitled \\\"AN ACT to amend chapter 207 of NRS, relating to miscellaneous crimes, by adding new sections making it a crime to molest any child under 18 years of age or to loiter about any public place frequented by children; providing penalties; and providing other matters properly relating thereto.\\\"\\nNRS 393.070 was enacted in 1956 (1956 Stats, of Nevada 173 \\u00a7 415), Article 46, under which \\u00a7 415 appears is entitled, \\\"Care, Management and Control of School Property.\\\"\\nIn determining what the Legislature intended, the title of the statute may be considered in construing the statute. Torreyson v. Board of Examiners, 7 Nev. 19 (1871). Further, if the title of an act is restricted to certain purposes, the purview or body of the act must also be restricted to that subject expressed in the title. State v. Payne, 53 Nev. 193, 295 P. 770 (1931). Finally, it is clear that legislative intent governs the construction of a statute or ordinance and such intent must be gathered from considerations of the entire statute or ordinance, and not from consideration of only one section thereof. Carson City v. Red Arrow Garage, 47 Nev. 473, 225 P. 487 (1924).\\nThe first loitering statute, NRS 207.270, by its legislative history, was designed to protect school children and young people from local and itinerate sex perverts who may loiter near schools and public places awaiting the opportunity to commit their crime. To apply this statute in support of a delinquency finding (NRS 201.090(14)) under the facts appearing in this appeal would be an error of egregious proportions.\\nWe also find that the second loitering statute, NRS 393.070, falling under the \\\"Care, Management and Control of School Property\\\" section is not the proper statute to support a charge of delinquency (NRS 201.090(14)) when the act complained of consisted solely of a student not returning to class for ten minutes when ordered to do so by the school principal.\\nWe therefore conclude that the Petition was defective for failing to specifically apprise the minor of the charge against her. This is so because the first reference to any loitering statute appears in the defendant's motion before the Juvenile Referee. Nowhere appears a charge specifically referring to the statute violated, if any. The two school-connected loitering statutes, NRS 207.270 and 393.070, are entirely misapplied to juvenile delinquency proceedings wherein a school student fails to return to class for a period of ten minutes on order of the school principal.\\nAll proceedings appealed from reversed and vacated.\\nBatjer, Mowbray, Thompson, and Gunderson, JJ., concur.\\n207.270 Loitering about schools, public places where children congregate unlawful; penalty. Any person who, without legitimate reason to supervise any of such children or other legitimate reason to be at leisure in such place, loiters about any school or public place at or near which children attend or normally congregate is guilty of a misdemeanor.\\n393.070 Damage to school property; loitering; disturbances; penalty.\\n1. It is unlawful for any person:\\n(a) Willfully and maliciously to injure, mark or deface any public schoolhouse, its fixtures, books or appurtenances; or\\n(b) To commit any nuisance in any public schoolhouse; or\\n(c) To loiter on or near the school grounds; or\\n(d) Purposely and maliciously to commit any trespass upon the grounds attached to a public schoolhouse, or any fixtures placed thereon, or any enclosure or sidewalk about the same.\\n2. Any person violating any of the provisions of this section shall be guilty of a public offense, as prescribed in NRS 193.155, proportionate to the value of the property damaged or destroyed and in no event less than a misdemeanor.\"}"

nev/4847584.json

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+"{\"id\": \"4847584\", \"name\": \"LONNIE NALL, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent\", \"name_abbreviation\": \"Nall v. Warden\", \"decision_date\": \"1970-06-18\", \"docket_number\": \"No. 6060\", \"first_page\": 489, \"last_page\": 492, \"citations\": \"86 Nev. 489\", \"volume\": \"86\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T22:30:19.136246+00:00\", \"provenance\": \"CAP\", \"judges\": \"Collins, C. J., Batjer and Mowbray, JJ., concur.\", \"parties\": \"LONNIE NALL, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.\", \"head_matter\": \"LONNIE NALL, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.\\nNo. 6060\\nJune 18, 1970\\n471 P.2d 218\\nJames D. Santini, Public Defender, Jeffrey D. Sobel and Steven Godwin, Deputy Public Defenders, Clark County, for Appellant.\\nHarvey Dickerson, Attorney General, of Carson City, George E. Franklin, Jr., District Attorney, Alan R. Johns and Larry C. Johns, Deputy District Attorneys, Clark County, for Respondent.\", \"word_count\": \"1110\", \"char_count\": \"6560\", \"text\": \"OPINION\\nBy the Court,\\nThompson, J.:\\nThis appeal is from an order of the district court denying relief under the post-conviction remedy act. Nall was convicted of felony extortion under NRS 205.320 and sentenced to five years imprisonment. That conviction was affirmed on direct appeal to this court. Nall v. State, 85 Nev. 1, 448 P.2d 826 (1969). His petition for post-conviction relief rests mainly upon our decision in Lapinski v. State, 84 Nev. 611, 446 P.2d 645 (1968). That case declared void the penalty provision of NRS 205.272 as amended, 67 Stats. 500, ch. 211, on the premise that the penalty to be exacted was unconstitutionally delegated to the discretion of the prosecuting attorney.\\nAccording to the appellant, the relevance of Lapinsld, supra, is this. At the time of the appellant's trial there existed two statutes, NRS 205.320 and NRS 205.315, either of which was applicable to his offense. Violation of the former was a felony or a gross misdemeanor; violation of the latter, a gross misdemeanor. The district attorney, therefore, could select under which statutory provision he wished to prosecute and, thereby, selected the penalty by his choice \\u2014 a discretionary act on his part, banned by the reasoning of Lapinski.\\nThe contention is not sound. Lapinski involved the discretion of the district attorney under a single statute defining the elements of a single crime. The discretion involved allowed the prosecutor to select the penalty. That discretion is not given to the prosecutor under either NRS 205.320 or 205.315. In the instance of 205.315, the penalty is fixed by legislative fiat. In the instance of 205.320, the court selects the penalty. Moreover, an offense under NRS 205.320 does not require as one element, malice, whereas the offense described in NRS 205.315 requires malice to be shown. To this extent, the crimes described are different. These distinctions deny the application of Lapinski to the case at hand.\\nAffirmed.\\nCollins, C. J., Batjer and Mowbray, JJ., concur.\\nIn 1967 NRS 205.315 was repealed, and NRS 205.320, amended in part. When this case was commenced they read as follows:\\nNRS 205.315. \\\"If any person, either verbally or by any written or printed communication, shall maliciously threaten any injury to any person or property of another, with intent thereby to extort money, or any pecuniary advantage whatever, or to compel the person so threatened to do any act against his will, he shall be punished, upon conviction thereof, by imprisonment in the county jail for not less than 6 months nor more than 1 year, and by a fine of not less than $100 nor more than $500.\\\"\\nNRS 205.320. \\\"Every person who, with intent thereby to extort or gain any money or other property or to compel or induce another to make, subscribe, execute, alter or destroy any valuable security or instrument or writing affecting or intended to affect any cause of action or defense, or any property, or to influence the action of any public officer, or to do or abet or procure any illegal or wrongful act, shall threaten directly or indirectly:\\n1. To accuse any person of a crime; or\\n2. To do any injury to any person or to any property; or\\n3. To punish or connive at publishing any libel; or\\n4. To expose or impute to any person any deformity or disgrace; or\\n5. To expose any secret,\\nshall be punished by imprisonment in the state prison for not more than 5 years or by imprisonment in the county jail for not more than 1 year, or by a fine of not more than $1,000, or by both fine and imprisonment.\\\"\\nThe incongruity \\u2014 to require malice as an element of the lesser offense and to omit it as an element of the greater \\u2014 is apparent and perhaps explains the 1967 repeal of 205.315.\"}"

nev/4850074.json

@@ -0,0 +1 @@
+"{\"id\": \"4850074\", \"name\": \"ODUS DWIGHT RAMEY, Appellant, v. THE STATE OF NEVADA, Respondent\", \"name_abbreviation\": \"Ramey v. State\", \"decision_date\": \"1983-04-21\", \"docket_number\": \"No. 14339\", \"first_page\": 264, \"last_page\": 265, \"citations\": \"99 Nev. 264\", \"volume\": \"99\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-11T01:13:32.352241+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ODUS DWIGHT RAMEY, Appellant, v. THE STATE OF NEVADA, Respondent.\", \"head_matter\": \"ODUS DWIGHT RAMEY, Appellant, v. THE STATE OF NEVADA, Respondent.\\nNo. 14339\\nApril 21, 1983\\n661 P.2d 1292\\nAbbatangelo & Watkins, Las Vegas, for Appellant.\\nBrian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, and James Tufteland, Deputy District Attorney, Clark County, for Respondent.\", \"word_count\": \"262\", \"char_count\": \"1636\", \"text\": \"OPINION\\nPer Curiam:\\nUnder the rationale of North Carolina v. Alford, 400 U.S. 25 (1970), appellant entered a plea of guilty to one count of assault with a deadly weapon. He later moved to withdraw the plea on several grounds, including his lack of understanding of the consequences of his plea. The district court denied the motion and sentenced appellant to six years in prison. Appellant now contends that his guilty plea must be set aside because the record does not affirmatively show it was knowingly and voluntarily entered. Specifically, appellant argues that the record does not affirmatively show he understood the consequences of his plea, including the range of possible punishments. We agree.\\nThe court below did not canvass appellant to determine whether he understood the range of possible punishments that could flow from his plea, and the record is utterly devoid of any indication that appellant understood the consequences of pleading guilty. Thus, the record does not affirmatively show the plea was knowingly and voluntarily entered, and the plea must therefore be set aside. See Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981); see also NRS 174.035(1).\\nThe judgment of conviction is reversed. The plea of guilty is set aside, and the matter is remanded to the district court for further proceedings.\"}"

nev/4856360.json

@@ -0,0 +1 @@
+"{\"id\": \"4856360\", \"name\": \"DESERET FEDERAL CREDIT UNION and CUMIS INSURANCE SOCIETY, INC., Appellants, v. GERALD PIGNOLO, Respondent\", \"name_abbreviation\": \"Deseret Federal Credit Union v. Pignolo\", \"decision_date\": \"1983-05-19\", \"docket_number\": \"No. 13710\", \"first_page\": 394, \"last_page\": 396, \"citations\": \"99 Nev. 394\", \"volume\": \"99\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-11T01:13:32.352241+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DESERET FEDERAL CREDIT UNION and CUMIS INSURANCE SOCIETY, INC., Appellants, v. GERALD PIGNOLO, Respondent.\", \"head_matter\": \"DESERET FEDERAL CREDIT UNION and CUMIS INSURANCE SOCIETY, INC., Appellants, v. GERALD PIGNOLO, Respondent.\\nNo. 13710\\nMay 19, 1983\\n[Rehearing denied June 30, 1983]\\n663 P.2d 354\\nEdwards, Hunt, Pearson & Hale, Ltd., and W. Randolph Patton, Las Vegas, for Appellant Cumis Insurance Society, Inc.\\nEarl and Earl, Las Vegas, for Appellant Deseret Federal Credit Union.\\nFreedman & Whelton, Las Vegas, for Respondent.\", \"word_count\": \"619\", \"char_count\": \"3887\", \"text\": \"OPINION\\nPer Curiam:\\nThis is an appeal from a summary judgment. The motion for summary judgment and the accompanying documentation show that in September of 1978, Donald Sorenson served as manager of appellant Deseret Federal Credit Union and as an officer of an entity known as Capital One of Nevada. Respondent Pignolo became interested in investing in Capital One. As a result, Pignolo allegedly borrowed $10,000 from the Deseret Federal Credit Union, using his Corvette automobile as collateral. Pignolo purchased a cashier's check for $10,000 payable to Capital One of Nevada with the funds that he had received from the credit union. The check was deposited into Capital One's bank account.\\nThe motion for summary judgment and the accompanying documentation further show that Sorenson and a Ronald Campbell assured Pignolo that Capital One would make all principal and interest payments on Pignolo's loan with the credit union. Captial One paid nothing on behalf of respondent Pignolo. In October of 1979, the credit union demanded payment.\\nPignolo initiated an action in district court on December 6, 1979. It was alleged, in part, that Donald Sorenson had implied authority to make the statements regarding repayment of the loan; that the credit union, as Sorenson's principal, was bound by the representations; and that Pignolo would not have taken the loan but for the fraudulent acts of Sorenson and Campbell. The complaint principally sought a judgment rescinding Pignolo's promissory note to the credit union and directing the return of the certificate of title to the Corvette.\\nPignolo subsequently moved for summary judgment. Pignolo argued that appellant credit union had admitted in its answer that Sorenson served as its manager both when the loan was obtained and when the statements to Pignolo regarding repayment were made; that Sorenson was acting within the scope of his apparent authority as manager of the credit union in making the representations concerning repayment; and that Deseret Federal Credit Union was liable as a principal for Sorenson's promises and actions. Pignolo submitted an affidavit in support of his motion. Appellants opposed the motion for summary judgment and filed the affidavit of a former board member of the credit union stating, in part, that Sorenson had no authority to excuse a party from repaying a loan to the credit union. The district court granted Pignolo's motion and entered judgment. This appeal followed.\\nSummary judgment is inappropriate where material questions of fact remain. See Allied Fidelity Ins. Co. v. Pico, 99 Nev. 15, 656 P.2d 849 (1983). Applying Pico to the present case, it appears that the district court erred in granting summary judgment. One of the principal questions presented in the litigation below is whether Sorenson had apparent authority to relieve Pignolo of his obligation to the credit union. It would appear at this juncture that the alleged representation that Capital One would repay the credit union loan could be imputed to no party other than Capital One. There is no indication of record that respondent was told by Sorenson that Deseret Federal would look only to Capital One for payment. Indeed, the fact that Deseret Federal took respondent's certificate of title to the Corvette would strongly suggest to the contrary. In any event, the record reveals a plethora of material issues of fact which must be resolved by a trial on the merits.\\nReversed and remanded for trial.\"}"

nev/4863499.json

@@ -0,0 +1 @@
+"{\"id\": \"4863499\", \"name\": \"SHERMAN A. THOMPSON, aka John C. Nicholas, Jr., Appellant, v. THE STATE OF NEVADA, Respondent\", \"name_abbreviation\": \"Thompson v. State\", \"decision_date\": \"1977-06-30\", \"docket_number\": \"No. 9344\", \"first_page\": 342, \"last_page\": 343, \"citations\": \"93 Nev. 342\", \"volume\": \"93\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T18:39:03.050418+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SHERMAN A. THOMPSON, aka John C. Nicholas, Jr., Appellant, v. THE STATE OF NEVADA, Respondent.\", \"head_matter\": \"SHERMAN A. THOMPSON, aka John C. Nicholas, Jr., Appellant, v. THE STATE OF NEVADA, Respondent.\\nNo. 9344\\nJune 30, 1977\\n565 P.2d 1011\\nMorgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender, Clark County, for Appellant.\\nRobert List, Attorney General, Carson City; George E. Holt, District Attorney, and H. Leon Simon, Deputy District Attorney, Clark County, for Respondent.\", \"word_count\": \"512\", \"char_count\": \"3167\", \"text\": \"OPINION\\nPer Curiam:\\nAt the conclusion of a bench trial, appellant was adjudged guilty of the crime of larceny from the person, a felony under NRS 205.270. Here, his principal contentions are: (1) evidence was illegally seized and should have been suppressed; (2) he was denied due process by the State's failure to, sua sponte, disclose his inculpatory statements made to a police officer; and, (3) his conviction is not supported by substantial evidence. We disagree.\\n1. Hot pursuit of the perpetrator led police officers to a hotel room, near the scene of the crime, which appellant had just rented. Appellant consented to the officers' entry whereupon they immediately arrested him. The officers then seized money together with clothing which, according to the victim's description, matched that worn by the perpetrator. Appellant argues these items of evidence were illegally seized and should have been suppressed. However, these items were in plain view of the officers, and \\\" '[i]t has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.' \\\" Boone v. State, 85 Nev. 450, 454, 456, P.2d 418, 420 (1969).\\n2. Appellant next argues he was denied due process because the State failed to, sua sponte, disclose to defense counsel oral inculpatory statements made by appellant. \\\"Pretrial discovery of the accused's statements is not constitutionally compelled by the Fourteenth Amendment.\\\" Mears v. State, 83 Nev. 3, 7, 422 P.2d 230, 232 (1967). Further, voluntary disclosure is not contemplated by our statutory provisions concerning criminal discovery. See NRS 174.235(1).\\n3. Notwithstanding appellant's contention to the contrary, his conviction is supported by substantial evidence. Hunt v. State, 92 Nev. 536, 554 P.2d 255 (1976).\\nOther contentions by appellant are without merit.\\nAffirmed.\\nNRS 205.270 provides:\\n\\\"Every person who, under circumstances not amounting to robbery, shall, with intent to steal or appropriate to his own use, take from the person of another, without his consent, any money, property or thing of value, shall be punished by imprisonment in the state prison for not less than 1 year nor more than 10 years, and may be further punished by a fine of not more than $5,000.\\\"\\nNRS 174.235(1) provides:\\n\\\"Upon motion of a defendant the court may order the district attorney to permit the defendant to inspect and copy or photograph any relevant:\\n\\\"1. Written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney; . . .\\\"\"}"

nev/4864884.json

@@ -0,0 +1 @@
+"{\"id\": \"4864884\", \"name\": \"MARGARET S. RICHARDSON, Appellant, v. HERBERT F. BRENNAN and IRENE BRENNAN, Husband and Wife, Respondents\", \"name_abbreviation\": \"Richardson v. Brennan\", \"decision_date\": \"1976-04-26\", \"docket_number\": \"No. 7966\", \"first_page\": 236, \"last_page\": 241, \"citations\": \"92 Nev. 236\", \"volume\": \"92\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-11T00:33:51.426901+00:00\", \"provenance\": \"CAP\", \"judges\": \"Gunderson, C. J., and Zenoff, Mowbray, and Thompson, JJ., concur.\", \"parties\": \"MARGARET S. RICHARDSON, Appellant, v. HERBERT F. BRENNAN and IRENE BRENNAN, Husband and Wife, Respondents.\", \"head_matter\": \"MARGARET S. RICHARDSON, Appellant, v. HERBERT F. BRENNAN and IRENE BRENNAN, Husband and Wife, Respondents.\\nNo. 7966\\nApril 26, 1976\\n548 P.2d 1370\\nEric Zubel, of Las Vegas, for Appellant.\\nMonte J. Morris, of Boulder City, for Respondents.\", \"word_count\": \"1495\", \"char_count\": \"9018\", \"text\": \"OPINION\\nBy the Court,\\nBatjer, J.:\\nAppellant commenced an action against respondents seeking to quiet title to a claimed driveway easement over respondents' property and to permanently enjoin respondents from interfering with her use of such easement. At trial, after the close of appellant's case, the district court granted respondents' NRCP 41(b) motion to dismiss. This appeal followed.\\nThe complaint alleged an easement by express grant, implication or prescription. On a motion for involuntary dismissal under NRCP 41(b) plaintiff's evidence and all reasonable inferences must be accepted by the trial court and the evidence must be interpreted in favor of plaintiff. Bearden v. City of Boulder City, 89 Nev. 106, 108, 507 P.2d 1034 (1973). Interpreting the evidence introduced and the inferences that can be drawn from it in appellant's favor we find she presented a case that requires respondents to answer her evidence which establishes that an easement by prescription exists appurtenant to her real property.\\nAppellant is the owner of Lot 14A, Block 5, 618 Arizona Street, and respondents are the owners of Lot 14, Block 5, 421 Avenue I, in Boulder City, Nevada. Respondents' lot lies with frontage to the west on Avenue I. The driveway in question begins on Avenue I and divides to circle respondents' house with an upper and lower roadway. Appellant's lot 14A is on the eastern boundary of respondents' lot and the front of her house and garage face respondents' lot and Avenue I. The only access to appellant's garage is through the lower roadway from Avenue I across respondents' lot.\\nAppellant's lot does not abut any public street. In 1966 Boulder City opened a gravelled alleyway from Arizona Street to the east of appellant's lot; however, it only allows appellant to park at the rear of her house and conveniently enter her home through the back door. Without an easement across respondents' lot appellant cannot drive a vehicle to the front of her lot and enter her garage.\\nPrior to the official incorporation of Boulder City the property which is now within the boundaries of Boulder City was governed and controlled by the United States Government, Bureau of Land Reclamation, which leased land to those who built homes on the property. Congress, by the Boulder City Act of Sept. 2, 1958, Pub. L. No. 85-900, 72 Stat. 1726, authorized the Secretary of the Interior, upon the incorporation of Boulder City, to transfer to the municipality without cost the improved lands within the municipal area, subject to existing leases. The leases were to be assigned to the municipality provided they be amended to offer the lease holders options to purchase.\\nAppellant's predecessor in interest to lot 14A held a ten year lease from the federal government from July 1, 1951 to June 30, 1961. On June 27, 1960, Boulder City as a municipal corporation issued its quitclaim deed to the lease holder. The deed was a standard quitclaim form which recited the conveyance was subject to easements, reservations, conditions and covenants of record but contained no mention of a driveway easement appurtenant to the lot. Title passed by inheritance to Frances Spencer Belknap who on October 28, 1964 deeded the property to appellant. That deed also failed to mention any easement.\\nRespondents' lot 14 was originally leased by the federal government to respondents' predecessors for the ten year period of July 1, 1951 to June 30, 1961. Prior to the expiration of the ten year term the lease was assigned several times. On September 2, 1958, it was assigned to respondents, and Boulder City quitclaimed the property to respondents on October 10, 1960. The deed was again a standard quitclaim form and recited it was subject to easements of record but did not mention any driveway easement to lot 14A.\\nAn easement by prescription can be created through five years adverse, continuous, open and peaceable use. Stix v. LaRue, 78 Nev. 9, 11, 368 P.2d 167 (1962); Howard v. Wright, 38 Nev. 25, 29, 143 P. 1184 (1914). Here the evidence relative to adverse use is to some degree in conflict but must be considered in a light most favorable to appellant. Appellant received her deed to the property on October 28, 1964. She testified at trial that when she bought the house her predecessor indicated the driveway across respondents' lot had always been used and could be used as long as appellant wanted. Respondent, Herbert F. Brennan, testified that when appellant moved in he explained the boundaries of the property and gave her permission to use the driveway. Despite the conflict concerning permission in 1964, it is clear that a dispute arose in April, 1968, when appellant indicated her claim of right in the driveway. At that time Irene Brennan presented appellant with a driveway use agreement which appellant failed to sign. Appellant testified she did not sign the agreement because she believed she would lose what right she had in the driveway, and if respondents in reliance upon such an agreement closed the driveway she would have been unable, without difficulty, to use her front door and garage. Appellant, visitors and salesmen continued to use the driveway until October, 1973, when respondents, after warning appellant, blocked the lower roadway with a boat and the upper roadway with a jeep.\\nRespondents rely on Turillas v. Quilici, 72 Nev. 289, 303 P.2d 1002 (1956), and Howard v. Wright, supra, for the proposition that where a roadway is established or maintained by a landowner for his use, the fact that his neighbor also uses it under circumstances which in no way interferes with use by the landowner himself, no presumption of adverseness is created. The factual posture of this case precludes the application of Turillas and Howard. Instead we apply the holding in Stix v. LaRue, supra, that no presumption of permissiveness will arise where the road was for many years the only means of ingress to and egress from the dominant estate and was not established by the owner of the servient estate for his own use.\\nThe driveway across respondents' lot has been used by the occupants of lot 14A since the lease from the federal government to appellant's predecessors became effective on July 1, 1951. The driveway was in existence and being used by the lessee of lot 14A when respondents were assigned their lease and was still being used when respondents purchased the property from Boulder City on October 10, 1960. The driveway is the only means of ingress to and egress from the front of appellant's house and garage. In fact, it was the only access to the house until Boulder City opened the alleyway access to the rear of appellant's house from Arizona Street.\\nRespondents contend that they have continuously asserted control over the driveway by closing the driveway to establish and maintain that control. They refer specifically to appellant's testimony in which she stated that on at least one occasion respondents put up a private drive sign and posted the driveway closed for 24 hours after warning appellant the night before. Appellant stated she had discussed the purpose of the closing with respondents and understood that according to the statutes of Boulder City a private road had to be posted closed for 24 hours in order to keep the city from dedicating it to the public. Such testimony, without more, merely reveals the road was closed by mutual consent of the parties to keep the driveway from becoming public, and respondents acknowledged appellant's right of use in the driveway by contacting her to warn of the closing. See Sufficool v. Duncan, 9 Cal.Rptr. 763 (Cal. App. 1960).\\nOther evidence tending to show appellant's use as free and continuous and respondents' acknowledgment of that use is found in appellant's testimony describing the maintenance of the driveway. On several occasions respondent Herbert F. Brennan purchased gravel to spread on the driveway. On three or four occasions within the ten years prior to commencement of this action, appellant helped respondents spread the gravel around with a rake, and at least once, in 1971, paid $20.00 of the $40.00 cost of the gravel. See Feldman v. Knapp, 250 P.2d 92 (Ore. 1952); Gano v. Strickland, 52 So.2d 11 (Miss. 1951). See also LeDeit v. Ehlert, 22 Cal.Rptr. 747 (Cal.App. 1962); Sufficool v. Duncan, supra; DiLeo v. Pecksto Holding Corp., 109 N.E.2d 600 (N.Y. 1952).\\nViewing the evidence most favorably to appellant, she has proved a \\\"sufficient case\\\" to establish a prescriptive easement appurtenant to her lot. NRCP 41(b). The judgment of the district court is reversed and the case is remanded for further proceedings to afford respondents an opportunity to contravene the prescriptive easement.\\nGunderson, C. J., and Zenoff, Mowbray, and Thompson, JJ., concur.\"}"

nev/4867280.json

@@ -0,0 +1 @@
+"{\"id\": \"4867280\", \"name\": \"TERRY LEE PHILLIPS, Appellant, v. SHERIFF, CLARK COUNTY, NEVADA, Respondent\", \"name_abbreviation\": \"Phillips v. Sheriff\", \"decision_date\": \"1977-06-15\", \"docket_number\": \"No. 9729\", \"first_page\": 309, \"last_page\": 312, \"citations\": \"93 Nev. 309\", \"volume\": \"93\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T18:39:03.050418+00:00\", \"provenance\": \"CAP\", \"judges\": \"Batjer, C. J., and Mowbray, Thompson, and/Gunderson, JJ., concur.\", \"parties\": \"TERRY LEE PHILLIPS, Appellant, v. SHERIFF, CLARK COUNTY, NEVADA, Respondent.\", \"head_matter\": \"TERRY LEE PHILLIPS, Appellant, v. SHERIFF, CLARK COUNTY, NEVADA, Respondent.\\nNo. 9729\\nJune 15, 1977\\n565 P.2d 330\\nHoward Ecker, Las Vegas, for Appellant.\\nRobert List, Attorney General, Carson City; George E. Holt, District Attorney, and J. Michael McGroarty, Deputy District Attorney, Clark County, for Respondent.\", \"word_count\": \"883\", \"char_count\": \"5588\", \"text\": \"OPINION\\nBy the Court,\\nManoukian, J.:\\nPursuant to a True Bill by the Clark County Grand Jury, an indictment was filed charging Terry Lee Phillips, and others, with murder (NRS 200.010; NRS 200.030) and robbery with use of a deadly weapon in the commission of a crime (NRS 200.380; NRS 193.165). The indictment was challenged with a pre-trial petition for a writ of habeas corpus wherein the principal contention was that the district attorney, in prosecuting the case, showed a conscious indifference to Phillips' rights. Appellant also contends that there was inadmissible evidence presented to the grand jury and without such evidence, probable cause evaporates. Both contentions were considered and rejected by the district court and are reasserted in this appeal.\\nThe State originally proceeded against Phillips by criminal complaint. The preliminary examination, first scheduled for December 10, 1976, was continued at the prosecution's request. The deputy district attorney made a sworn declaration as permitted by Bustos v. Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971), stating that a necessary witness had been subpoenaed but had failed to appear. On December 13, 1976, at the second scheduled preliminary examination, the State was again unable to proceed, having learned in the interim that the absent witness had fled the jurisdiction. The case was dismissed.\\nPhillips argues that our decision in Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970), requires a dismissal of the indictment because \\\"[a] new proceeding for the same offense . is not allowable when the original proceeding has been dismissed due to the willful failure of the prosecutor to comply with important procedural rules.\\\" Appellant contends there were two such \\\"willful failures.\\\"\\nFirst, he argues the inability of the State to proceed to preliminary examination constitutes a violation of DCR 21 and bars any further proceedings. However, the record supports the district judge's determination that the case was originally dismissed, not as a sanction against the State for any \\\"willful failures\\\" to comply with DCR 21, but because the State, after exercising due diligence, was unable to proceed. Therefore, Maes is inapposite, and this proceeding on the indictment is permissible. Tellis v. Sheriff, 85 Nev. 557, 459 P.2d 364 (1969).\\nSecondly, he contends that since the district attorney was later able to obtain a True Bill without the missing witness's testimony, the witness was never really essential and the Bustos declaration was necessarily false. A false Bustos declaration, the argument proceeds, evidences a \\\"conscious indifference\\\" to his rights (forbidden by State v. Austin, 87 Nev. 81, 482 P.2d 284 (1971)), and, therefore, this subsequent proceeding is improper. A similar argument was considered and rejected in Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972). Cf. Johnson v. Sheriff, 89 Nev. 304, 511 P.2d 1051 (1973). That the district attorney was able to obtain a True Bill from the grand jury without the testimony of the absent witness does not, by itself, establish that such witness's testimony was unnecessary at the time of the preliminary examination.\\nIn support of his second contention, Phillips argues that inadmissible hearsay statements were presented to the grand jury without it having been instructed as to the foundational requirements for admissibility. He relies on Highers v. State, 337 P.2d 1112 (Okla.Crim.App. 1959), and Hammers v. State, 337 P.2d 1097 (Okla.Crim.App. 1959), for the proposition that it is mandatory for the grand jury to be correctly instructed on the law by the prosecuting attorney. The cases do not support the proposition. Highers and Hammers hold that the grand jury may request advice on matters of law. This is the law in Nevada as well. Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973). However, the cases impose no requirement upon the prosecuting attorney to offer gratuitous explanations of every legal matter that may or may not become relevant to the further prosecution of the case. While it is true NRS 172.-135 requires that only legally admissible evidence be presented to the grand jury, the particular statements in question were dying declarations, which are admissible under NRS 51.335. Therefore, we perceive no error in the presentation of these statements to the grand jury.\\nAdditionally, appellant has proffered the contention that the requirements of NRS 172.155(1 ) were not met and that the then chief trial judge exceeded his authority in the impanelment of the grand jury. Finally, he challenges the legality of the second Clark County Grand Jury. These ancillary contentions, and such others raised, being without merit, are rejected. See, Hardison v. Sheriff, 93 Nev. 64, 560 P.2d 148 (1977).\\nAffirmed.\\nBatjer, C. J., and Mowbray, Thompson, and/Gunderson, JJ., concur.\\nThe statute provides: \\\"A statement made by a declarant while believing that his death was imminent is not inadmissible under the hearsay rule if the declarant is unavailable as a witness.\\\"\\nNRS 172.155(1) provides: \\\"The grand jury ought to find an indictment when all the evidence before them, taken together, establishes probable cause to believe that an offense has been committed and that the defendant has committed it.\\\"\"}"

nev/4868973.json

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+"{\"id\": \"4868973\", \"name\": \"THOMAS WILLIAM WRENN, Appellant, v. THE STATE OF NEVADA, Respondent\", \"name_abbreviation\": \"Wrenn v. State\", \"decision_date\": \"1973-02-22\", \"docket_number\": \"No. 6788\", \"first_page\": 71, \"last_page\": 74, \"citations\": \"89 Nev. 71\", \"volume\": \"89\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-11T01:13:32.353003+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mowbray, Gunderson, Batjer, and Zenoff, JJ., concur.\", \"parties\": \"THOMAS WILLIAM WRENN, Appellant, v. THE STATE OF NEVADA, Respondent.\", \"head_matter\": \"THOMAS WILLIAM WRENN, Appellant, v. THE STATE OF NEVADA, Respondent.\\nNo. 6788\\nFebruary 22, 1973\\n506 P.2d 418\\nDouglas J. Shoemaker, of Las Vegas, for Appellant.\\nRobert List, Attorney General, Herbert F. Ahlswede, Chief Deputy Attorney General, Robert A. Groves, Deputy Attorney General, and Roy A. Woof ter, District Attorney, Clark County, for Respondent.\", \"word_count\": \"1073\", \"char_count\": \"6499\", \"text\": \"OPINION\\nBy the Court,\\nThompson, C. J.:\\nThis appeal concerns discretionary rulings regarding expert opinion testimony offered by the defendant-appellant Wrenn and rejected by the trial court. It is Wrenn's contention that the proffered opinion testimony was vital to his defense and that its rejection was prejudicial error. He does not otherwise challenge the verdict, and it is clear to us that the verdict rests upon substantial evidence.\\nThomas Wrenn was prosecuted for the murder of Hubert Arthur Smith. He and Smith were not acquainted. They apparently had become angry with each other while each was driving his car in the same direction along certain streets in Las Vegas. Their anger was expressed by obscene gestures, profane language, and efforts to impede each other's vehicular travel. They finally stopped in front of the home of Mr. and Mrs. G. C. Baugus. Randy Baugus was a passenger in Thomas Wrenn's car. They were close friends. Randy was on medical leave from the Marine Corps. His legs had been amputated below the knees as a consequence of stepping in a booby trap during military service in Viet Nam.\\nHubert Smith got out of his car and advanced menancingly towards Wrenn and Baugus. Wrenn exited from his car, entered the Baugus home, obtained a high-powered Remington magnum rifle, filled it with ammunition and, upon leaving the house, fired two shots in the air. Hubert Smith promptly returned to his Volkswagen and started to drive away. A third shot was fired which passed through the left rear window of the moving Volkswagen and into the left mid-back of Smith, causing a massive hemorrhage and immediate death. Meanwhile, Randy Baugus had removed himself from the Wrenn car and was sitting on the ground nearby.\\nAccording to Wrenn, the third shot was accidentally discharged while he was bending over to lift Randy from the ground. He stated: \\\"and I bent over to pick him up, Randy grabbed the gun, it discharged accidentally.\\\" His version of the incident was contradicted by an eyewitness who testified that the rifle was on Wrenn's shoulder when he fired the third shot.\\nAlmost two years after the homicide, two engineers made out-of-court engineering calculations at the scene. The purpose was to determine the elevation of the rifle when the fatal bullet was discharged. One of them was allowed to testify and his testimony was later stricken. The other was precluded from expressing his opinion, and defense counsel then made an offer of proof. The stricken testimony and the offer of proof are almost identical and place the elevation of the rifle at waist level. This opinion evidence would tend to corroborate the testimony given by the defendant.\\nThe conditions of the out-of-court experiment should be substantially similar to those prevailing at the time of the incident in issue before opinion testimony based thereon is admissible. Jorgensen v. People, 482 P.2d 962 (Colo. 1971). Of course, an exact duplication of the conditions is not required. L. A. & S. L. R. Co. v. Umbaugh, 61 Nev. 214, 224, 123 P.2d 224 (1942). Whether substantial similarity exists normally is a discretionary decision for the trial judge to make. Levine v. Remolif, 80 Nev. 168, 172, 390 P.2d 718 (1964). Correlatively, such opinion testimony should not be received if shown to rest upon assumptions rather than facts. Levine v. Remolif, supra; Choat v. McDorman, 86 Nev. 332, 335, 468 P.2d 354 (1970). And, such expert opinion may not be the result of guesswork or conjecture. Beasley v. State, 81 Nev. 431, 436, 404 P.2d 911 (1965).\\nIn the instant matter, all concede that the validity of the engineering calculations of the expert witnesses rested upon several assumed facts which were not established to have been the actual facts of the homicide. Moreover, the experts admitted that a slight difference in the data used by them would materially affect their conclusions as to the level at which the rifle was discharged. Since the probative value of their engineering calculations and resulting conclusions necessarily depended upon the accuracy of the facts they had assumed to be true, the trial judge properly precluded their opinion testimony. Levine v. Remolif, supra; Choat v. McDorman, supra; Beasley v. State, supra. The evidence code, and particularly NRS 50.275; 50.285; 50.295 and 50.305, does not suggest that the trial judge should have ruled otherwise.\\nAffirmed.\\nMowbray, Gunderson, Batjer, and Zenoff, JJ., concur.\\nThe calculations of the experts assumed: (a) that the Volkswagen which Hubert Smith was driving when shot was stationary when, in fact, it was moving (b) the position of the Volkswagen in the street when its left rear window was pierced by the bullet, when that position was not definitely established (c) the posture of Smith in the car while driving it, when that posture was not known (d) the location of the defendant when the rifle was discharged, when that location was not fixed with certainty (e) the grading of the street and (f) several other assumptions.\\nNRS 50.275: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.\\nNRS 50.285: 1. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing.\\n2. If of a type reasonably relied upon by experts in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.\\nNRS 50.295: Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.\\nNRS 50.305: The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.\"}"

nev/4884122.json

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+"{\"id\": \"4884122\", \"name\": \"ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellant, v. STANLEY J. PIETROSH and LILLIAN PIETROSH, Individually and as Natural Guardians of JOHN STANLEY PIETROSH, a Minor, and JOHN STANLEY PIETROSH, a Minor, Respondents\", \"name_abbreviation\": \"Allstate Insurance v. Pietrosh\", \"decision_date\": \"1969-05-06\", \"docket_number\": \"No. 5737\", \"first_page\": 310, \"last_page\": 317, \"citations\": \"85 Nev. 310\", \"volume\": \"85\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T18:05:15.418175+00:00\", \"provenance\": \"CAP\", \"judges\": \"Collins, C. J., Zenoff, Batjer, and Mowbray, JJ., concur.\", \"parties\": \"ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellant, v. STANLEY J. PIETROSH and LILLIAN PIETROSH, Individually and as Natural Guardians of JOHN STANLEY PIETROSH, a Minor, and JOHN STANLEY PIETROSH, a Minor, Respondents.\", \"head_matter\": \"ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellant, v. STANLEY J. PIETROSH and LILLIAN PIETROSH, Individually and as Natural Guardians of JOHN STANLEY PIETROSH, a Minor, and JOHN STANLEY PIETROSH, a Minor, Respondents.\\nNo. 5737\\nMay 6, 1969\\n454 P.2d 106\\nWait & Shamberger, of Reno, for Appellant.\\nEcheverr\\u00eda & Osborne, of Reno, for Respondents.\", \"word_count\": \"2158\", \"char_count\": \"13516\", \"text\": \"OPINION\\nBy the Court,\\nThompson, J.:\\nThis is an action for declaratory relief commenced by Allstate Insurance Company requesting an adjudication denying that company's liability to its insureds for any part of a judgment secured by the insureds against an uninsured motorist. The meaning to be given the uninsured motorist provisions of an automobile insurance policy was the issue presented to the district court and now tendered to us. The district court ruled against Allstate and entered judgment in favor of the insureds for $10,000, interest, costs, and attorney's fees upon a counterclaim therefor. This appeal followed. We affirm.\\nThe insurance policy issued by Allstate to die parents of John Pietrosh, a minor, provided coverage to the extent of $10,000 as damages which the named insureds or any relative residing with them would be entitled to recover from the owner or operator of an uninsured vehicle causing bodily injury. That event occurred on July 19, 1966 when the minor son of the insureds was injured in a collision between the bicycle he was riding and an uninsured automobile driven by Margaret Howard. Allstate was informed of the accident shortly after it happened. One of its agent told the insureds \\\" 'You're fully covered by us' \\\" and that \\\"they would take care of the whole thing . . . .\\\" The policy contained a provision for arbitration upon written demand of either Allstate or the insured should any dispute arise as to liability or the amount of damages. It is disputed which of two endorsements was applicable at the time of the accident. One of them, an exclusion from coverage, required the written consent of Allstate to settlement with or the prosecution to judgment against the uninsured motorist. The other endorsement, placed within the coverage section of the policy, provided that no judgment against the uninsured motorist would be conclusive unless entered in an action prosecuted by the insured with the written consent of Allstate.\\nThe record does not disclose whether the insureds or Allstate attempted to settle the uinsured motorist claim. Neither the insureds nor Allstate demanded arbitration. Four months after the accident the insureds commenced an action for damages against Margaret Howard, the uninsured motorist. On the same date that process was effected upon the defendant, Allstate was orally notified of the litigation, and soon thereafter copies of the pleadings were mailed to Allstate. The defendant answered. Allstate did not seek to intervene. Trial occurred quickly, and on January 20, 1967 judgment was entered for the insured plaintiffs against the uninsured defendant for $21,677.50 and costs. The insureds did not request nor did Allstate give its written consent to the litigation or to the judgment entered therein. The instant action by Allstate for declaratory relief was then instituted.\\n1. An insured who is legally entitled to recover damages from the owner or operator of an uninsured vehicle would seem to have several options available to secure such relief. He may settle his claim with his insurance company; settle with the uninsured motorist; arbitrate with his insurance company; sue his insurance company; sue the uninsured motorist; or sue both, joining them as codefendants. These options, however, are not always open, and whatever course is selected by the insured may engender problems since other policy provisions and state law sometimes provide barriers. For example, settlement with his insurance company may involve that company's right of subrogation should the insured thereafter proceed against the uninsured motorist. Settlement with the uninsured motorist may require the consent of the insurance company. Arbitration may not be available because of state law. Litigation against the uninsured motorist may be precluded unless consent of the insurance company is obtained. Suit against the uninsured motorist and the insurance company as codefendants may raise problems of joinder and conflicting interests.\\nThis case concerns the interplay of the arbitration and consent provisions of the policy upon the judgment secured against the uninsured motorist, and the right of the insureds to secure partial satisfaction of that judgment from the insurance company.\\n2. Arbitration. Since the accident giving rise to this dispute occurred in 1966, we are not concerned with the 1967 law which states that \\\"no provision for arbitration . is binding upon the named insured or any person claiming under him.\\\" NRS 693.115(4). Before 1967 this court did not have occasion to decide the enforceability of an agreement to arbitrate a future uninsured motorist dispute. In a different context, however, we had ruled that an agreement to arbitrate a future dispute was valid and enforceable. United Assn. Journeymen v. Stine, 76 Nev. 189, 351 P.2d 965 (1960). The reasoning of that case applies with equal force to an agreement to arbitrate a future uninsured motorist dispute. Just recently we assumed the enforceability of such a provision in an uninsured motorist policy and held that the arbitration award was conclusive upon all issues voluntarily submitted to the arbitrator, and which were not subject to vacation or modification for the reasons specified in NRS 38.170 and 38.180. Northwestern Security Ins. Co. v. Clark, 84 Nev. 716, 448 P.2d 39 (1968). That case involved a pre-1967 accident and the effect of the 1967 law was not before us. We now hold that prior to the enactment of NRS 693.115(4) a provision for the arbitration of an uninsured motorist dispute was enforceable.\\nThe policy before us provides for arbitration in the event of disagreement and upon written demand of either insured or insurer. Since neither demanded arbitration the enforceability of that provision is significant only to the extent that it bears upon the \\\"consent\\\" endorsement \\u2014 a matter to which we now turn our attention.\\n3. At trial a factual dispute arose as to which of two amendatory \\\"consent\\\" endorsements to the original policy of insurance was applicable at the time of the accident. The district court did not resolve that dispute. Allstate contended that the \\\"permission to sue\\\" clause was in effect. This was an exclusion from coverage provision stating: \\\"This section of the policy does not apply to bodily injury of an insured with respect to which such insured or his representative shall, without the written consent of Allstate, make any settlement with, or prosecute to judgment any action against, any person or organization who may be legally liable therefor . . . .\\\"\\nThe insureds urged that a revised endorsement was in force which provided that \\\"no judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by an insured with the written consent of the company.\\\" This endorsement, if applicable, would have appeared in the coverage section of the policy.\\nThe first mentioned endorsement was designed to defeat coverage should the insured prosecute an action to judgment against the uninsured motorist without the consent of Allstate. Under the revised endorsement a prosecution to judgment is not treated as an event that will defeat coverage. Its purpose is to preclude the binding effect of such judgment upon the insurance company.\\nSince the district court failed to decide which of the two endorsements was in effect, we shall consider each of them.\\n(a) The permission to sue endorsement. Some courts have ruled that the permission to sue clause is void, if the arbitration clause is not enforceable. Boughton v. Farmers Ins. Exchange, 354 P.2d 1085 (Okla. 1960); Dominici v. State Farm Mutual Auto Ins. Co., 390 P.2d 806 (Mont. 1964); State v. Craig, 364 S.W.2d 343 (Mo.App. 1963). The reasoning is that if arbitration is not available the insured should be entitled to a court determination of fault and damage in a suit against the uninsured motorist; or that it is against public policy to preclude the insured's right to trial by jury of his claim against the uninsured motorist. These cases are not particularly persuasive since we have decided that a pre-1967 provision for arbitration is enforceable in this state.\\nThe permission to sue endorsement was litigated in two Illinois cases, Levy v. American Auto Ins. Co., 175 N.E.2d 607 (Ill.App. 1961), and Andeen v. Country Mutual Ins. Co., 217 N.E.2d 814 (Ill.App. 1966). The Levy case was decided before Illinois adopted a statute approving agreements to arbitrate future disputes. The Andeen decision was handed down after the enactment of that statute. In each instance the exclusion was held not to bar an action when the insurance company furnished no reason for its refusal to allow the insured to obtain a judgment against the uninsured motorist. In Levy, the court wrote: \\\". . . the condition of the company's promise to pay is the ascertainment of the legal liability of tihe third party. The company can prevent this determination by the simple device of refusing to grant the insured its written consent to prosecute the action to judgment. There was an implied promise on the part of the Insurance Company that it would not unreasonably or arbitrarily withhold its written consent. The company gave no reason for its refusal to allow the plaintiffs to obtain a judgment against the uninsured motorist.\\\" 175 N.E.2d at 611. And in Andeen, where the insurance company was notified of the filing of suit against the uninsured motorist, and did nothing, the court approved the lower court's remark that the insurance company should have consented to suit or demanded arbitration. Failing to do either, it was bound by the judgment.\\nThose decisions are on point. Although informed of the accident shortly after it happened, Allstate apparently did nothing. The record does not disclose an attempt to settle the insureds' claim. When notified of the litigation, no move was made to intervene therein (cf. State v. Craig, 364 S.W.2d 343 (Mo.App. 1963)), demand arbitration, or consent to the suit. This, we thinlc, was unreasonable conduct on its part which we cannot condone.\\nAn insurance policy is not an ordinary contract. It is a complex instrument, unilaterally prepared and seldom understood by the insured. The parties are not similarly situated. The company and its representatives are expert in the field; the insured is not. Prudential Insurance Co. v. Lamme, 83 Nev. 146, 148, 149, 425 P.2d 346 (1967). For this reason we do not hesitate to place the burden of affirmative action upon the insurance company. When notified of a claim it should investigate with reasonable dispatch; demand arbitration if that is its desire and settlement can't be reached; consent to suit against the uninsured motorist when notified of its pendency; or seek leave to intervene and present its contentions. Multiple litigation is not desirable. In short, the insurance company may not ignore its insured and then seek refuge in the fine print of its policy. We hold that the permission to sue endorsement, if in effect at the time of the accident, does not bar recovery in the circumstances of this case.\\n(b) The revised endorsement. The aim of this endorsement is to preclude the binding effect of a judgment against the uninsured motorist upon the insurance company. The notion is that although the insured may litigate against the uninsured motorist without the insurance company's permission, any judgment secured will not obviate the necessity for him to arbitrate with or sue his company in order to collect under the policy. The provision is reasonable when the insurance company is not notified of the litigation and is, therefore, without compulsion to intervene, demand arbitration, or take other steps. Its enforcement may be appropriate in a case where the insured secures a default judgment against the uninsured motorist, since an adversary determination of liability and damages is absent. MFA Mutual Ins. Co. v. Bradshaw, 431 S.W.2d 252 (Ark. 1968). However, where the company is given notice of the action, has the opportunity to intervene, and judgment is thereafter obtained against the uninsured motorist in an adversary proceeding, we hold that the company should be bound thereby despite the contrary policy provision.\\nWe recognize that our holding on this point subverts the requirement of privity normally present with an application of the doctrines of res judicata or collateral estoppel. Privity is absent here. Our holding also forces intervention. However, the avoidance of multiple litigation carries the greater weight. We therefore conclude that the revised endorsement, if in effect at the time of the accident, does not preclude the judgment entered below.\\nAffirmed.\\nCollins, C. J., Zenoff, Batjer, and Mowbray, JJ., concur.\\nThe options and attendant problems are discussed by Professor Widiss, Perspectives on Uninsured Motorist Coverage, 62 Nw.U.L.Rev. 497 (1967).\"}"

nev/4892877.json

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+"{\"id\": \"4892877\", \"name\": \"ELIZABETH McCLELLAN, Appellant, v. SAM DAVID, dba DAVID FOOD PRODUCTS, Respondent\", \"name_abbreviation\": \"McClellan v. David\", \"decision_date\": \"1968-04-17\", \"docket_number\": \"No. 5420\", \"first_page\": 283, \"last_page\": 291, \"citations\": \"84 Nev. 283\", \"volume\": \"84\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T22:16:48.085480+00:00\", \"provenance\": \"CAP\", \"judges\": \"Batjer and Mowbray, JJ., concur.\", \"parties\": \"ELIZABETH McCLELLAN, Appellant, v. SAM DAVID, dba DAVID FOOD PRODUCTS, Respondent.\", \"head_matter\": \"ELIZABETH McCLELLAN, Appellant, v. SAM DAVID, dba DAVID FOOD PRODUCTS, Respondent.\\nNo. 5420\\nApril 17, 1968\\n439 P.2d 673\\n[Rehearing denied June 19, 1968]\\nFoley, Garner & Shoemaker, of Las Vegas, for Appellant.\\nWiener, Goldwater & Galatz and 7. Charles Thompson, of Las Vegas, for Respondent.\", \"word_count\": \"3141\", \"char_count\": \"18037\", \"text\": \"OPINION\\nBy the Court,\\nCollins, J.:\\nAppellant (plaintiff below) sued respondent (defendant below) for $53,000 damages for personal injuries resulting from use of a cleaning product called \\\"Sparkle,\\\" prepared, mixed and sold by him in Clark County Nevada. Respondent defaulted in answering the complaint and judgment was rendered against him by the trial court for $7,800 after hearing plaintiff's proof. Relief from the judgment was granted to respondent by the lower court in setting aside his default and allowing him to defend. We reverse that order and reinstate the judgment, for the reason that no excusable neglect was shown as a matter of law.\\nThe action was commenced May 14, 1965. Summons and complaint were served upon respondent by leaving a copy at his home with his wife. (NRCP 4(d)(6)).\\nThe complaint alleged that appellant had been injured by the use of the product in 1963. Respondent, who had sold his business to Interstate Restaurant Supply Co. in 1964, forwarded the complaint and summons to his purchaser. He did this rather than retaining counsel or seeking advise upon the matter because he felt it was the purchasers obligation to defend the action.\\nNo pleadings having been filed by or on behalf of respondent, his default was entered June 25, 1965. The lower court received appellant's ex parte proof December 15, 1966, and entered judgment in her favor for $7,800 and costs. No explanation appears in the record for the lapse of 18 months between the entry of default and the prove-up of damages.\\nRespondent's first motion to set aside the default was made on March 28, 1967 on the ground that effective service of process was not made resulting in the lack of jurisdiction of the lower court to enter the judgment. David contended in an affidavit he had no knowledge or notice of the proceedings until February, 1967. This motion was denied when service of process on David's wife in May, 1965 was proved and finally admitted.\\nA second motion (with court approval) was made by respondent to set aside the default on the ground that defendant's failure to file an answer was the result of his \\\"inadvertence, surprise and excusable neglect.\\\" The motion was accompanied by a proposed answer which alleged a general denial and several affirmative defenses on behalf of David but which did not seek to interplead Interstate Restaurant Supply Company as the real party defendant. David's affidavit accompanying the motion was supported by a letter from a Mr. Marvin Rubin, of Fuld Bros. Inc. to Mr. Sam Horowitz of Interstate Restaurant Supply Company to whom David had sent the summons and complaint, acknowledging their receipt, and forwarding them on to the insurance carrier; and another letter from Fuld Bros, to Alexander and Alexander of Baltimore, Maryland, asking handling of the case through Travelers Insurance Company. This motion was granted and it is from such order this appeal is taken.\\nA transcript of the hearing on the latter motion is a part of the record in this case. That transcript reveals Sam David was called as an adverse witness by appellant and questioned upon the subject of telephone calls made by him to the office of appellant's counsel after commencement of the action in 1965. He testified as follows:\\n\\\"Q. Now, as I understand your testimony then, you don't recall whether you called the offices of Mendoza, Foley and Garner or not, is that correct?\\nA. I only recall the one instance that I mentioned.\\nQ. Is it possible you did call the office after you were served with this complaint?\\nA. It is possible, but I don't recall it. I don't know what you're referring to, sir.\\\"\\nIn opposition to David's testimony, appellant called as her witness Henrietta Troxel, a secretary in the office of Foley, Garner & Shoemaker, attorneys at law, and counsel for appellant. On the same subject matter of telephone conversations with David about this litigation, she testified, after refreshing her memory from notes made by her at the time of the occurrences, as follows:\\n\\\"Q. Now, since May 18th, 1965, have you had any telephone calls or any conversations with any persons in regard to this particular complaint?\\nA. I have had at least three telephone conversations with Mr. David.\\nQ. With whom, ma'am?\\nA. Mr. David; Sam David.\\nQ. Would you tell us when these conversations occurred, if you can recollect?\\nA. The first one was either the next day or the day following after service had been \\u2014 the complaint had been served on him, he called, and wanted to speak to Mr. Garner and I informed him that Mr. Garner would probably not speak to him.\\nQ. Now, just a minute, Mrs. Troxel. Would you tell the court how you knew or how you were able to determine that this was Mr. David rather than some other person?\\nA. He told me 'This is Sam David from David Food Products; you have a complaint against me; who is Elizabeth McClellan? Why is she suing me? I don't know her.'\\nQ. What occurred then, in this conversation?\\nA. Mr. David wanted to know why Mrs. McClellan was suing him. I told him to look at the complaint. He was reading from the complaint and denying it. I told him he would have to get his own attorney to call Mr. Garner; that Mr. Gamer would probably not speak to him.\\nQ. Did you ever subsequently have another conversation with him where this person at least identified himself as Mr. Sam David?\\nA. He called again and insisted on speaking to Mr. Garner.\\nQ. When was this, Mrs. Troxel?\\nA. Oh, this was just a few days after that. I don't know, but I believe I have notations in the file, I usually date my notes.\\nQ. Did you subsequently have another conversation at a later date with Mr. David?\\nA. Mr. David called me up the early part of this year [1967] and told me that he had an escrow with some title company and he then discovered that there was a judgment against him. No, previous to that, I called Mr. David up and informed him that default would be taken against him if he did not answer.\\\"\\nOn the same subject, after first examining her note in the file, she testified as follows:\\n\\\"By the Witness: This is a note where I called Mr. Sam David at 735 \\u2014 9041. I believe this is at his place of business. It's dated 6/9/65. It's in my handwriting and I said\\u2014 I told him to get his answer\\u2014\\nBy the Court : What was the date?\\nBy Mr. Shoemaker: 6/9/65, I believe, isn't that correct?\\nBy Witness: Yes.\\nBy Mr. Shoemaker: Q. What date was that, Mrs. Troxel?\\nA. The 9th day of June.\\nQ. 1965?\\nA. 1965.\\nQ. All right, what occurred and what is now your recollection after having read this note?\\nA. Well, Mr. David had still not answered and so I called him to remind him that there was the twenty-day period of time in which he had to get his answer. He told me that he had called the manufacturer, that he wanted the manufacturer to answer, that he was not responsible. So I told him, 'Well, either call your attorney, your insurance carrier or someone and get your answer in.' He told me, T called him once and I'm going to get on this immediately. I'm going to call him just as soon as I talk to you.'\\nQ. Now, Mrs. Troxel, you had an additional telephone call sometime in early February, 1967 from Mr. Sam David, is that correct?\\nA. Yes.\\nQ. And you have also heard him testify up here?\\nA. Yes.\\nQ. Would you relate to the Court whether or not you could or would reasonably be able to recognize his voice.\\nA. As a matter of fact, I recognized his voice when he called me in February. I remember voices over the telephone and he told me that he had an escrow and at that time he discovered the judgment against him. He said, 'What is this judgment about? I don't know a thing about it.' And so I said, 'Mr. David, I have spoken to you at least three times about this matter.' He said, 'It's all new to me.' I said 'Mr. David, I have notes in the file to show that I spoke to you.' So then he wanted to speak to Mr. Garner again and at that time I told him Mr. Shoemaker was now handling the matter and I don't believe there is anything to talk about.\\\"\\nAppellant contends the lower court abused its discretion in setting aside the default in that respondent failed to show excusable neglect. She argues that the showing fails in the following respects: (1) inaction for 18 months; (2) ignoring of the command in the summons, and warnings given through appellant's counsel to answer timely; (3) unilateral, subjective reliance without just or probable cause from appellant or from anyone else that a third party would defend the action; (4) failure to interplead in his tendered answer the third party whom respondent felt was obligated to defend the action on his behalf.\\nRespondent, on the other hand, convinced the lower court of his \\\"excusable neglect\\\" by urging: (1) reasonable reliance upon a third party to defend the case; (2) apparent belief by the lower court of David's testimony over that of Mrs. Troxel as to the fact and substance of telephone conversations between them about this litigation; (3) affidavit of his counsel that upon being retained by David after default judgment was entered they worked diligently to determine the status of the litigation, and took action immediately to set aside the default and that respondent in their opinion had a meritorious defense to the cause of action.\\nFrom the record there was substantial evidence to show neglect on the part of David. However, before a default judgment may be set aside under NRCP 60(b)(1), the party so moving must show to the court that his neglect was excusable. Intermountain Lumber v. Glens Falls Ins., 83 Nev. 126, 424 P.2d 884 (1967); Nevada Industrial Guaranty Co. v. Sturgeon, 80 Nev. 254, 391 P.2d 862 (1964); Anderson v. Taylorcraft, Inc., 197 F.Supp. 872 (W.D.Pa. 1961). We hold, as a matter of law, that respondent did not make such a showing.\\nRespondent David stated that he felt that Interstate Restaurant Supply Co. was obligated to defend the action and that he relied heavily upon that subjective feeling. He did not, however, produce anything to demonstrate his reliance was based upon anything but his own state of mind. The letters from Fuld Bros, certainly indicate nothing more than an effort to bring the claim to the attention of the Travelers Insurance Company with the hope it would settle the case or defend it. Travelers Insurance Company did neither, nor is there the slightest indication it ever intended to.\\nIf respondent's reliance was predicated upon the contract of sale he had with Interstate, whereby they agreed to hold him harmless from this type of liability, he failed to produce it. The conclusive factor in this regard is his failure to interplead Interstate in the answer he did file with the court. His answer contains only general denials and affirmative defenses with no mention of any kind of liability of Interstate.\\nThe factor shown by the record which should have prompted the trial judge to deny the motion was the telephone conversations between the respondent and Mrs. Troxel. Mrs. Troxel, as related above, distinctly recalled three telephone conversations with David about this litigation. Two of the conversations occurred before entry of default; one on June 9, 1965, when he called her employers office, and one later conversation when she called him to urge him to file his answer. Her recollection of the conversations were refreshed from notes made by her at the time. Her testimony was not impeached in the slightest. David did not deny these conversations. He simply said he did not recall them. Accordingly, there is not fundamental conflict in this testimony requiring us to adhere to the trial court's finding in favor of respondent on this issue. State v. V. & T. R. R. Co., 23 Nev. 283, 292, 46 P. 723 (1896); Washington National Ins. Co. v. Benz, Inc., 382 P.2d 678, 681 (Ariz. 1963). Testimony of a witness that he does not remember whether a certain event took place does not contradict positive testimony that such event or conversation took place. Bender v. Roundup Mining Co., 356 P.2d 469, 471 (Mont. 1960); Tennent v. Leary, 304 P.2d 384, 387 (Ariz. 1956). See also: Comment Note \\u2014 Comparative value of positive and negative testimony, 98 A.L.R. 161. Therefore, we hold that there was no credible evidence before the lower court to show that the neglect of respondent David was excusable under the circumstances.\\nVery recently we have had occasion to consider this same problem. In Lentz v. Boles, 84 Nev. 197, 438 P.2d 254 (1968), all the Nevada cases on setting aside defaults were reviewed, those reasons supporting or defeating the exercise of discretion were discussed and a ruling made that we favored adjudication of cases upon their merits. But we also urged judicious, explicit and carefully reasoned exercise of that discretionary power when we said, \\\"We wish not to be understood, however, that this judicial tendency to grant relief from a default judgment implies that the trial court should always grant relief from a default judgment. Litigants and their counsel may not properly be allowed to disregard process or procedural rules with impunity. Lack of good faith or diligence, or lack of merit in the proposed defense, may very well warrant a denial of the motion for relief from the judgment.\\\"\\nWe have found it exceedingly difficult to set down generalized rules for guidaiice of the lower courts in proper exercise of their discretion in setting aside default judgment. Fact patterns urged for the exercise of that discretion are so varied that the emergence of a clear definition of \\\"excusable neglect\\\" can only come on a case by case basis. Even then our own pronouncements may be said to stultify rather than clarify the problem.\\nWe cannot forget, however, that for the sake of continuous, regular and predictable flow of legal business we must give the rules of procedure, including the right to take a default after proper service of process, reasonable, flexible interpretation. But lines must be drawn somewhere and litigation brought to an end by final judgment, even though obtained by default.\\nAccordingly, we reverse the order of the lower court setting aside the default of respondent and reinstate the judgment of $7,800 plus costs dated December 23, 1966.\\nBatjer and Mowbray, JJ., concur.\\nThe third followed the entry of judgment when David called to inquire why there was a lien upon his property. This call was admitted by him.\"}"

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+"{\"id\": \"4908868\", \"name\": \"OPACO LUMBER & REALTY CO., a Nevada Corporation, Appellants, v. E. V. PHIPPS and LYDA F. PHIPPS, His Wife, Respondents\", \"name_abbreviation\": \"Opaco Lumber & Realty Co. v. Phipps\", \"decision_date\": \"1959-06-05\", \"docket_number\": \"No. 4154\", \"first_page\": 312, \"last_page\": 316, \"citations\": \"75 Nev. 312\", \"volume\": \"75\", \"reporter\": \"Nevada Reports\", \"court\": \"Supreme Court of Nevada\", \"jurisdiction\": \"Nevada\", \"last_updated\": \"2021-08-10T18:42:10.864936+00:00\", \"provenance\": \"CAP\", \"judges\": \"McNamee and Badt, JJ., concur.\", \"parties\": \"OPACO LUMBER & REALTY CO., a Nevada Corporation, Appellants, v. E. V. PHIPPS and LYDA F. PHIPPS, His Wife, Respondents.\", \"head_matter\": \"OPACO LUMBER & REALTY CO., a Nevada Corporation, Appellants, v. E. V. PHIPPS and LYDA F. PHIPPS, His Wife, Respondents.\\nNo. 4154\\nJune 5, 1959\\n340 P.2d 95\\n(Petition for rehearing denied June 29,1959.)\\nRobert Callister, of Las Vegas, for Appellant.\\nCory, Denton & Smith, of Las Vegas, for Respondents.\", \"word_count\": \"1063\", \"char_count\": \"6265\", \"text\": \"OPINION\\nBy the Court,\\nMerrill, C. J.:\\nThis action is brought to foreclose a mechanic's lien for materials used in the construction of respondents' residence in Las Vegas. The lien claimant has taken this appeal from judgment for the respondents rendered by the trial court sitting without jury.\\nThe first question raised by the appeal is whether the filing, unsigned, of a document entitled \\\"default\\\" can be construed as entry of default by the clerk. Appellant moved the trial court for an order striking the answer of respondents, basing its motion upon the ground that the answer had been filed after entry of default. The trial court concluded that default had not been entered and denied the motion.\\nAppellant recognizes that under NR.CP 55(c) default, once entered, can be set aside \\\"for good cause shown.\\\" Appellant contends, however, that no cause whatsoever was shown which would have justified the setting aside of a default; that'under these circumstances it was error or abuse of discretion to deny its motion to strike. We have already held, upon application for writ of certiorari, that lack of such cause would not deprive the court of jurisdiction to entertain an answer. Opaco Lumber Company v. District Court, 73 Nev. 278, 317 P.2d 957.\\nThe record discloses the following facts: After the time for answering had expired appellant filed with the clerk of the trial court its praecipe for default and also presented for signing and filing by the clerk a written form of default. The latter was filed, but the clerk failed to sign it.\\nAppellant contends that this ministerial oversight should be regarded as cured by the fact of filing. It emphasizes that, in filing the document, the clerk had, by signature, attested the fact of filing. Appellant contends that this signature should serve to meet any formalities necessary to an entry of default.\\nThe clerk's ministerial duty to receive and file documents tendered for filing, is entirely separate from its duty under NR.CP 55(a) to enter default. That rule provides: \\\"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.\\\"\\nDefault, thus, is not automatic. The rule contemplates a ministerial determination by the clerk and that this determination shall be recorded by the clerk through his entry of default. The manner in which default shall be entered is not specified. It must, however, by some means, demonstrate that the clerk had given his attention to the particular matter.\\nCompliance by the clerk with his duties with respect to the filing of a document in no way indicates that the matter of default has had his attention. The trial court was not in error in concluding that default had not been entered in this case.\\nAppellant next contends that the trial court under these circumstances should have ordered entry of default, nunc pro tunc, since it is clear upon the facts that appellant was entitled to entry of default at the time the praecipe was filed.\\nThe consideration of a plaintiff's right to a nunc pro tunc entry of default may well be one approach to the problem of his right to have stricken a tardy answer of the defendant. This court has taken a different approach, however.\\nIn Scheinwald v. Bartlett, 51 Nev. 155, 271 P. 468, this court held that in absence of entry of default it is discretionary with the trial court to permit an answer to be filed. It was there stated, 51 Nev. 158, 271 P. 469, \\\"The default of respondent has not been entered. There is a verified answer on file. The court, in our opinion, has discretion to deal with it as the justice of the case may require.\\\"\\nIn the present case there is no showing that failure of respondents to plead within the time provided had occasioned any injury or delay to appellant. Accordingly we find no error or abuse of discretion in the denial of appellant's motion to strike.\\nAppellant next attacks the judgment for respondents as contrary to the undisputed facts. The trial court found that appellant had delivered materials of a value of $1,344.54 to respondents' building contractor. It further found, however, that not all of these materials were delivered to respondents' building site. It concluded that appellant was not entitled to any lien at all.\\nIt is conceded that while there may be a dispute as to whether all of the materials were delivered to respondents' building site or used in their building, it is undisputed that some of the materials were so delivered or used.\\nRespondents contend, notwithstanding, that appellant has failed to show that it is entitled to judgment in any sum.\\nDuring the course of construction of respondents' residence the sum of $1,462.76 had been paid to appellant on account. Respondents contend that since appellant is entitled to a lien only for those materials shown to have been delivered at the building site and since he has only offered proof of such deliveries to the extent of $1,344.54 he has failed to prove that materials were delivered over and above the amount of payment.\\nAppellant's manager testified that the payment in question had been made for earlier deliveries covered by separate and specific invoices which were not the subject of this action. The record shows that the materials which are the subject of this action were all delivered subsequent to the date of the payment. Thus, in the absence of any contrary showing by respondents, the record establishes that the payment had no relation to the invoices and deliveries which are here in dispute.\\nAppellant, then, is entitled to its lien for such part of the building materials as it actually delivered to the building site or as can be proved to have gone into the structure. A trial and definite findings by the trial court thus become necessary.\\nReversed and remanded for new trial.\\nMcNamee and Badt, JJ., concur.\"}"