to consider the answer of the appellant, could | sible in evidence on the trial of the case, as have made no difference in the power or ju- prescribed in section 151 of the criminal risdiction of the judge to appoint such re- practice act of the state of Nevada." ceiver. Even though such answer be con- that case we said: "An examination of the sidered, still the record in our judgment title to the act in question reveals that it fully authorized and empowered the trial has reference only to the appointment of a court to appoint a receiver. Finding no er- stenographer, and fixing the compensation ror in the record, the order is affirmed. therefor. Nowhere in the title of the act Costs awarded to respondent. is there any reference to the testimony being thereafter used as evidence, or at all. Section 2 of said act, therefore, clearly violates section 17 of article 4 of the Constitution of our state, because the subject-matter is not embraced in the title of the act, nor can it be said that the subject-matter of section 2 is germane to the subject-matter defined in the title of the act." The above section was held, also, to violate other provisions of the SULLIVAN, C. J., concurs. AILSHIE, J., concurs in the conclusion that the order should be affirmed. STATE ex rel. SPARKS et al., Board of Bank Com'rs, v. STATE BANK & TRUST Supreme Court of Nevada. Dec. 17, 1909.) PER CURIAM. Counsel for appellants have filed a petition for a rehearing, in which it is contended that our former decision in this case is at variance with two recent decisions of this court, viz., Bell v. District Court, 28 Nev. 280, 81 Pac. 875, 1 L. R. A. (N. S.) 843, 113 Am. St. Rep. 854, and State v. Gibson, 31 Nev., 96 Pac. 1057. To hold that the act involved in this case is constitutional, we do not think has made necessary any different construction of the provisions of section 17 of article 4 of the Constitution than that applied in former decisions of this court. Sometimes expressions may occur in an opinion not essentially necessary to its determination, and, taken alone, might be susceptible of too broad or too restricted a construction, but, viewed in the light of the entire decision, cannot be said to modify an established rule. The two cases, supra, we think are clearly distinguishable from the case at bar. The gist of the opinion in Bell v. District Court, supra, is contained in the following extract: "The subject of the act in question is elections. Its purpose and object is the orderly electing of public officers by the qualified voters of the state. The trial of an officer, after he has been so elected, for malfeasance in office, his removal, and the appointment of his successor because of such removal has no proper connection whatever with the subject of elections." The case of State v. Gibson, involved the constitutionality of section 2 of an act entitled "An act to provide for the appointment of stenographers upon the hearing of preliminary examinations before committing magistrates in this state, and to regulate the compensation therefor" (Act 1907, p. 59, c. 32), which reads: "When such report is made, the same, when transcribed and sworn to as aforesaid, shall be deemed a correct statement of the evidence and proceedings Constitution not in question in the case at bar. The contention of counsel for appellant that in this case we have departed from established precedents is clearly without merit. A few extracts from former decisions of this court will be sufficient answer to this contention. In the case of State v. Ah Sam, 15 Nev, 27, 27 Am. Rep. 454, this court, by Beatty, C. J., said: "But in dealing with this particular objection to parts of statutes, which, as a whole, embrace but one subject of legislation, the courts of the different states have adopted an exceedingly liberal rule of construction in favor of their validity. The decisions on the point are very numerous, but it would be unnecessary and unprofitable to attempt a review of them; for in scarcely a single instance is an attempt made to lay down any rule or principle more definite than is to be gathered from the remark of Judge Cooley (Con. Lim. 146) that 'there has been a general disposition to construe the constitutional provision liberally, rather than to embarrass legislation by a construction, whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.' The 'beneficial purposes' designed to be accomplished by the provision in question are said to have been the prevention of 'surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked, and carelessly and unintentionally adopted,' and to fairly apprise the public of the subjects of legislation under consideration by their representatives, in order that they might have an opportunity of being heard thereon by petition, or otherwise. Cooley's Con. Lim. 142, 143. It is not inconsistent with these purposes to give some slight enlargement to the literal meaning of the title of a law, and there are numerous precedents that will justify us in saying that the title of this act, 'to prohibit the keeping of places of resort' etc., is substantially equivalent to 'for the suppression of places of resort,' etc. Cooley's Con. Lim. 141-150, and [Ed. Note. For other cases, see Homestead, Dec. Dig. § 150.*] 2. HOMESTEAD (§ 150*)-RIGHTS OF SURVIVING SPOUSE-PROCEEDINGS FOR ALLOTMENT -PETITION. The issue as to whether property sought to be set aside to a widow of a homestead is separate or community property is raised by a petition showing that the husband was in possession when he died; the presumption being in favor of the community in such case. [Ed. Note.-For other cases, see Homestead, Dec. Dig. § 150.*] Mandamus by the State, on the relation of Clara Cook, against Frank P. Langan, to compel respondent, as Judge of the District Court, to settle a proposed statement on a motion for a new trial. Writ issued. ers, 22 Nev. 399, 407, 41 Pac. 145, 147, this | ings by Probate Act, § 281 (Laws 1897, p. 164, court, by Bigelow, C. J., said: "We have c. 106; Comp. Laws, § 3067). often held and still hold that the Constitution is to be liberally construed, to the end that there shall be no unnecessary hampering of legislation, but there is a wide difference between liberal construction and nullification, which would be the effect of deciding that an act, passed under a title so misleading as this, is notwithstanding a valid law. The section might as well be stricken from the Constitution at once as a dead letter. This distinction is well illustrated by cases heretofore decided by this court. Those of State v. Ah Sam, 15 Nev. 27, 27 Am. Rep. 454; Ex parte Livingstone, 20 Nev. 287, 21 Pac. 322, and State v. Board of Com'rs of Humboldt Co., supra, 21 Nev. 235, 29 Pac. 974, of which we entirely approve, and which in our judgment contain nothing in conflict with what is here held, were all cases in which, by liberal construction, the court was unable to uphold the validity of the acts then under consideration; while, on the other hand, the cases of State v. Silver, supra, 9 Nev. 227, State v. Hallock, 19 Nev. 384, 12 Pac. 488, and State v. Hoadley, 20 Nev. 317, 22 Pac. 99, fell on the other side of the line, and, notwithstanding the rules of liberal construction, the acts then being reviewed were held to be unconstitutional." See, also, State v. Commissioners, 17 Nev. 96, 102, 28 Pac. 122; State v. Atherton, 19 Nev. 332, 345, 10 Pac. 901; State v. Commissioners, 21 Nev. 235, 239, 29 Pac. 974. The case of Brooks v. People, 14 Colo. 413, 24 Pac. 553, cited and quoted from in State v. Gibson, supra, may, and we think does, give a too restricted construction to the constitutional provision in question, and is not in entire harmony with the uniform liberal construction adopted by this and other courts generally. The rule laid down by the Colorado court in the Brooks Case supported our contention, but went further and to an extreme which was not necessary to a determination of the Gibson Case, the opinion in which, taken as a whole, is in line with the uniform views expressed by this court. The question presented in the Gibson Case was practically identical with that in State v. Commissioners, 22 Nev. 399, 41 Pac. 145, supra. The petition for rehearing is denied. Samuel Platt and M. A. Murphy, for relator. J. Poujade and Wm. Woodburn, for respondent. NORCROSS, C. J. This is an original prolator sets forth: That she is the widow of ceeding in mandamus. The petition of relator sets forth: That she is the widow of Walter Cook, deceased, and the administratrix of his estate; that as such widow she filed a petition in the First judicial district court in and for Ormsby county, in the estate proceedings of the said Walter Cook, deceased, praying for an order of said court setting aside to her, for her own individual, separate use and benefit, certain specified real property as a homestead; that said petition was contested by certain of the alleged heirs at law of said decedent; that thereafter said petition came on regularly to be heard before said court, and evidence was presented on behalf of said petitioner and also on behalf of said contestants; that, after the conclusion of such hearing, the matter was submitted to the court for its decision; that thereafter, and on July 30, 1908, the said court made an order denying the prayer of the petitioner; that thereafter, and on September 11, 1908, within the time allowed by the court, petitioner filed and served her notice of motion for a new trial; that thereafter, and on the 25th day of September, 1908, within the time allowed by court, petitioner filed and served her proposed statement on motion for a new trial; that no amendments to said proposed statement were offered by contestants, and, pursuant to oral stipulation of respective counsel in open court, the said court set down the hearing STATE ex rel. COOK v. LANGAN, District of petitioner's motion for a new trial for Judge. (No. 1,852.) (Supreme Court of Nevada. Dec. 13, 1909.) 1. HOMESTEAD (§ 150*)-RIGHTS OF SURVIVING SPOUSE PROCEEDINGS FOR ALLOTMENT-REVIEW-MOTION FOR NEW TRIAL. A motion for new trial preliminary to appeal is proper in estate proceedings to set aside a homestead to the widow; the practice in civil cases being made applicable to such proceed the 27th day of July, 1909; that on said date last mentioned, upon motion of counsel for petitioner, the court ordered the clerk to indorse upon said proposed statement that "no amendments have been filed to the proposed statement on motion for a new trial"; that thereupon the court made an order refusing to settle said proposed statement upon the ground that an order denying a petition to set aside a homestead was a direct appealable order, and that a motion for a new trial was and is not a proper remedy, to which ruling petitioner duly excepted. The answer of respondent herein sets up: That the petition of relator in the lower court failed to allege that the property, sought to be set apart as a homestead, was community property, and that the inventory, filed in the estate matter, failed to show its character; that upon the hearing petitioner admitted that the property in question was the separate property of Walter Cook, deceased; that there were no issues of fact made by pleadings as to whether the property was separate or community property, the sole question considered by the court in its order; that the hearing upon the petition was merely to inform the respondent of the character of the property, and was not a legal trial; that, if petitioner were denied her rights in the order refusing to set aside a homestead, her remedy was by appeal from said order; that the court had no jurisdiction of a motion for a new trial to reverse its decision on such an order; and that therefore respondent was, and is, without authority to settle the proposed statement on motion for new trial. Upon the hearing of this application for mandamus, the records and files in the lower court were offered in evidence. The notice of motion for a new trial was based upon the grounds of insufficiency of the evidence to justify the judgment and that the decision and judgment is against law. As we view this application, only a question of practice is presented upon the record. Counsel have to some extent argued the question of law whether or not the lower court has power to decree a homestead set apart out of the separate estate of the deceased husband. It is conceded that such question controlled the court in making the order denying the application to set aside a homestead. This question is one of great importance and has never been determined by this court. It was sought to be determined in the case of Quinn v. Quinn, 27 Nev. 156, 74 Pac. 5; but this court held that the appellant had not taken the proper procedure to present the question in that case, and hence the question was not passed upon. Were the question now properly before us, we should not be disposed to determine it in the absence of the question being thoroughly briefed by respective counsel. If, as counsel for respondent contend, a homestead can in no event, under the statutes of this state, be set apart out of the separate property of the deceased husband, in the absence of statutory declaration having been made prior to his death, and the evidence offered in the lower court upon the hearing conclusively shows that the property, sought to be set aside, was part of decedent's sep that such declaration was ever made, then the evidence would justify the decree entered; but this court cannot pass upon such question until it is properly presented upon appeal. Hence, as before stated, the only question now before us is one of practice, to wit, whether petitioner has a right to move for a new trial preliminary to an appeal, or whether he is limited by appeal direct from the order or decree. We are convinced, from an examination of the statutory provisions controlling, that the proceeding by motion for a new trial is proper. Sections 252, 255, and 281 of the act to regulate the settlement of estates of deceased persons, provide: "Sec. 252. All issues of fact in matters of an estate shall be disposed of in the same manner as is by law provided upon the trial of issues of fact in a common-law action. All questions of costs may be determined by the court, and execution may issue therefor in accordance with the order of the court." "Sec. 255. Any person interested in, affected by, and aggrieved at the decision and decree of the district court appointing an executor or administrator, revoking letters, allowing a final account, or disallowing it, decreeing a distribution or partition, order or decree, confirming or setting aside a report of commissioners, admitting or refusing a will for probate, and any other decision wherein the amount in controversy equals or exceeds, exclusive of costs, one thousand dollars, may appeal to the Supreme Court of the state, to be governed in all respects as an appeal from a final decision and judgment in action at law." "Sec. 281. When not otherwise specially provided in this act all the provisions of law regulating proceedings in civil cases shall apply in matters of estate, when appropriate, or the same may be applied as auxiliary to the provisions of this act." Comp. Laws, §§ 3038, 3041, 3067. In the case of Quinn v. Quinn, supra, this court said: "By analogy, we may consider the petition for the order setting apart a homestead as a complaint, the reply thereto as an answer, and the order as a judgment, and regard them as constituting a judgment roll." A decree setting aside or refusing to set aside a homestead is essentially a final judgment affecting the title to real property. If an application to set aside a homestead is contested, the issue or issues joined are tried in the same manner as issues in an ordinary action. We see no reason why a motion for a new trial would not be appropriate in such a proceeding. If the lower court has erred in its decision, it ought to have an opportunity to correct it and thus avoid the necessity of an appeal. If a motion for a new trial is appropriate, and we think it is, it is made applicable to proceedings of this character by the provisions of section 281, supra. Counsel for respondent has not pointed out how this dence to support a decree in a homestead con- | cept that owned previous to marriage or subtest, upon a direct appeal. This court has frequently held, in actions brought under the provisions of the civil practice act, that it cannot review the evidence to determine its sufficiency to support the judgment in the absence of a motion and statement on motion for a new trial. State v. Sadler, 21 Nev. 13, 23 Pac. 799; Burbank v. Rivers, 20 Nev. 81, 16 Pac. 430; Beck v. Truckee Lodge, 18 Nev. 246, 2 Pac. 390; State v. Northern Bell M. Co., 15 Nev. 385; Conley v. Chedic, 7 Nev. 336; James v. Goodenough, Id. 324; Whitmore v. Shiverick, 3 Nev. 303; Quinn v. Quinn, 27 Nev. 156, 74 Pac. 5. The Supreme Court of California, in Re Bauquier, 88 Cal. 315, 26 Pac. 533, said: "It would be impracticable to enumerate the cases in which a motion for a new trial is appropriate in probate proceedings; but it may be stated generally that, whenever the action of the court which is invoked is dependent upon the existence of certain extrinsic facts which are presented to it for determination in the form of pleadings, and are to be decided by it in conformity with the preponderance of the evidence, offered thereon, an issue of fact arises which, after its decision, may be re-examined by the court upon a motion for a new trial." Leach v. Pierce, 93 Cal. 614, 29 Pac. 235; Id. 93 Cal. 624, 29 Pac. 238; In re Spencer, 96 Cal. 448, 31 Pac. 453; Estate of Franklin, 133 Cal. 584, 65 Pac. 1081; In re Davis' Estate, 27 Mont. 235, 241, 70 Pac. 721. sequently acquired in a particular way. The presumption therefore attending the possession of property by either is that it belongs to the community. Exceptions to the rule must be proved. * This invariable presumption which attends the possession of property by either spouse during the existence of the community can only be overcome by clear and certain proof that it was owned by the claimant before marriage, or acquired afterwards in one of the particular ways specified in the statute, or that it is property taken in exchange for, or in the investment, or as the price of the property so originally owned or acquired. The burden of proof must rest with the claimant of the separate estate." See, also; Morgan v. Lones, 78 Cal. 62, 20 Pac. 248; Dimmick v. Dimmick, 95 Cal. 327, 30 Pac. 547; In re Boody, 113 Cal. 686, 45 Pac. 858; Fennell v. Drinkhouse, 131 Cal. 447, 63 Pac. 734, 82 Am. St. Rep. 361; Freese v. Hibernia Bank, 139 Cal. 392, 73 Pac. 172; Lake v. Bender, 18 Nev. 361, 4 Pac. 711, 7 Pac. 74. "It may be stated as a general proposition that the presumption of the law is against separate property, and in favor of the community; the presumption attending the possession of property by either spouse being that it belongs to the community. And hence, of course, it follows as a matter of course that the burden of proof is generally upon the party claiming that the property is not a part of the community esIt is contended that no issue was presented tate. Property purchased or acquired during in the lower court for the reason that the the existence of the marital relation, whether petition to set aside a homestead did not al- the title be taken in the name of the husband, lege that the property in question was comor that of the wife, or in their joint names is munity property; hence that there was no presumed to be community property. Moretrial and no basis for a new trial. The peti-over, it has been held that, in the absence of tion, praying that certain specified real property be set aside to the widow as a home-proof that the property was acquired before stead, alleges that "it was occupied by the marriage took place, the presumption arises that the property was obtained during the marriage relationship and is community. So Property found in the possession of either husband or wife at the time the marriage is dissolved is presumed to be community eshowever, prima facie only, and may be overtate. The above-mentioned presumptions are, come by evidence showing that the property purchased or otherwise acquired was in fact paid for with separate funds, or otherwise acquired as separate property. 21 Cyc. 1650. From the authorities above cited, we think said decedent and his family for a long time prior to the death of the said decedent, and up to this date the widow of the said decedent has remained in the possession of the said house and premises." Further than this, there is no allegation from which the character of the property may be inferred. No direct allegation that the property is community appears. The answer filed by the contesting heirs sets up as a defense to the proceeding, in addition to certain denials, the allegation that the property in question was the separate estate of the decedent. Conceding, for the purposes of this case only, without so deciding, that it was essential for the petition to show that the property was community, in order to raise the issue, can the petition be regarded as containing such an allegation? The Supreme Court of California, consider-munity was raised upon the face of the pleading the provisions of the statute of that state defining separate and community property of husband and wife, from which ours was doubtless copied, in the case of Meyer v. Kinzer, 12 Cal. 251, 73 Am. Dec. 538, by Field, J., the petition to set aside a homestead, at least in the absence of demurrer, should be construed in connection with the presumption that the property in question is community property. Thus construed, the issue as to whether the property was separate or com ings. It is our conclusion therefore that it was respondent's duty to settle the said statement on motion for a new trial. The writ prayed for will issue. ANDERSON v. ENGLEHART. (Supreme Court of Wyoming. Dec. 20, 1909.) 1. APPEAL AND ERROR (§ 281*) REVIEW MOTION FOR NEW TRIAL-NECESSITY. Under Rev. St. 1899, § 3746, defining a new trial, Supreme Court rule 13 (104 Pac. xiii), providing that nothing which may have been properly assigned as ground for a new trial in the trial court will be considered unless it has been properly presented to the court below on a motion for a new trial, and such motion has been overruled, does not require a motion for a new trial as a prerequisite to a review of an order denying a motion to dissolve a temporary injunction. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661; Dec. Dig. § 281.*] 2. APPEAL AND ERROR (§ 91*)-ORDERS APPEALABLE-TEMPORARY INJUNCTION-DISSOLUTION - DENIAL - "FINAL ORDER"-"SPECIAL PROCEEDING." Rev. St. 1899, §4247, provides for review of a judgment or final order, and section 4249 declares that an order affecting a substantial right, which in effect determines the action or prevents a judgment, and an order affecting a substantial right in a special proceeding, is a "final order" which may be reviewed in the Supreme Court. Held, that the term "special proceeding" as so used was not limited to a proceeding apart from an action, but included a necessary, proceeding to aid the ultimate relief sought in an action, and hence an order denying a motion to dissolve a temporary injunction before judgment was a final order, terminating a special proceeding, and reviewable on writ of error. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 621; Dec. Dig. § 91.* For other definitions, see Words and Phrases, vol. 3. p. 2802; vol. 7, pp. 6586-6590; vol. 8, pp. 7802, 7803.j Error to District Court, Carbon County; David H. Craig, Judge. Suit by W. M. Englehart against J. F. Anderson. From an order denying defendant's motion to vacate a temporary injunction, plaintiff brings error. On motion to dismiss. Denied. N. R. Greenfield, for plaintiff in error. Charles E. Winter, for defendant in error. POTTER, C. J. W. M. Englehart brought an action in the district court in the county of Carbon against J. F. Anderson, to recover the amount alleged to be due upon certain promissory notes, and to foreclose a mortgage upon certain real estate given to secure said notes. In a separate cause of action the petition alleges that the defendant threatens to remove certain fixtures from the mortgaged premises, which are alleged to constitute a part of the realty and to be covered by the mortgage, and it is prayed that a temporary injunction issue restraining the defendant from detaching or remov ing the said fixtures, and that upon the final hearing of the case the injunction be made perpetual. A temporary injunction was issued at the commencement of the action, without notice of the application therefor to the defendant, and an undertaking, as required by statute, in the amount fixed by the judge upon allowing the injunction appears to have been executed and filed. cause was commenced, the injunction issued, and the undertaking executed and filed on June 1, 1909. On the following day, viz., June 2, 1909, the defendant filed a motion to dissolve the temporary injunction, and, after notice to the plaintiff, said motion was heard by the court on June 10, 1909, upon the petition and papers upon which the injunction was issued, and affidavits presented by the respective parties, and on the same day the court overruled the motion, and ordered that the injunction be continued until the final hearing of the case, to which the defendant excepted, and within the time allowed for that purpose he presented and had allowed his bill of exceptions. Thereupon the defendant, Anderson, instituted this proceeding in error for the review of the order denying the motion to dissolve the injunction. Our The plaintiff below, defendant in error here, moves to dismiss the petition in error and the proceedings thereon for two reasons: (1) That a motion for a new trial was not made in the district court; (2) that the order sought to be reviewed is not a final order, and therefore not appealable. rule 13 (104 Pac. xiii) provides that nothing which could have been properly assigned for a new trial in the court below will be considered in this court, unless it shall appear that the same was properly presented to the and that such motion was overruled, and court below by a motion for a new trial, ruling, all of which shall be embraced in the exception was at the time reserved to such bill of exceptions. The rule does not apply where a review is sought of an order such as is here complained of. Under the statute a new trial is the re-examination of an issue of fact, after verdict of a jury, report of a referee or master, or decision by the court. Rev. St. 1899, § 3746. As held in the case of First National Bank v. Swan, 3 Wyo, 356, 23 Pac. 743, a new trial as thus defined refers to a re-examination of an issue of fact on the pleadings, where a fact or conclusion of law is maintained by one party and controverted by the other. In that case it was held that a motion for a new trial was not necessary for the consideration on error of an order made upon a motion to discharge an attachment, and the court said: "The action of a court in hearing and determining a motion to discharge an attachment is not, in a strictly legal sense, a trial, and therefore the action of the court may be reviewed on error, although a motion for a new trial was not made below." The proceeding and hearing on a motion to discharge an attachment is in this respect analogous to a motion and a hearing there *** |