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appellant tending to contradict that offered tend to contradict the testimony of Hanby the appellee), yet we cannot say that the cock as to the number of goats counted in trial court erred in finding for the appellee, McDugal's herd in the pitchfork brand, and in fact we think he was fully justified in so it does not appear that the evidence alleged doing, even from the bare record of the tran- to have been discovered would change the script of the evidence, and how much strong- result of the trial. In point of fact, the er such evidence may appear to one who trial court, sitting as a jury upon the quessees the living witnesses, notes their man- tions of fact involved, heard the affidavits, ner of testifying, their apparent candor and by overruling the motion held, in efwhile upon the witness stand, and the nu- fect, that no such result would ensue, even merous other elements entering into the though the witnesses appeared before him question of their credibility, we cannot as- and gave oral testimony to the same effect. certain. Burden of proof cannot be measur- Nor does the bare statement that appellant ed accurately from a transcript of questions could not with due diligence have discovered and answers. Experience teaches us that and produced the evidence at the trial sufdemeanor of witnesses, their known credi- fice. He should state that such facts were bility or otherwise, may have great bearing not within his knowledge or that of his upon the words employed by them in tes- counsel at tlie time of the trial, and that tifying.

he did not know and could not apprehend The second assigument of error by appel- that these witnesses might be material witlant is "that the court erred in not granting nesses in his behalf. On the contrary, it a new trial on the ground of newly discover. appears from the testimony of both appeled evidence of James M. McDugal, for the lants that they kner of the purchase of a reasons set forth in defendant's motion for part of Phillip's goats by McDugal, at least a new trial and affidavits in support there- by hearsay. Pages 81 and 101, Record. of.” “Applications for new trials because It is urged in the fifth and sixth assign of newly discovered evidence are looked up- ments of error that the court erred in ad. on by the courts with distrust. In the ab- | mitting parol evidence of the ownership of sence of statute, or when a statute expressly the goats in evidence, by allowing the proof provides for what causes a new trial will of appellee's brands by parol instead of rebe granted, and newly discovered evidence | quiring the certificate of record of the is not one of them, no new trial will be brands. In Territory v. Smith, 78 Pac. 42, granted on this ground.” 12 Cyc. 734, and this court held that where title to animals, cases cited. This court bas laid down rules the subject of larceny, is sought to be esunder which a new trial may be granted on tablished by brand, a certificate of the rethe grounds of newly discovered evidence corded brand must be shown, under section in Territory v. Claypool and Lueras, 11 N. 67 of the Compiled Laws of 1897, and that M. 568, 71 Pac. 463, as follows: "The rule under the peculiar circumstances of that of law is that a new trial will not be grant- case defendant did not waive the omission ed on a mere showing that new evidence of offering such certificate by failing to obhas been discovered. Newly discovered evi- ject to the questions calling for the oral dence, in order to be sufficient, must fulfill testimony at the time they were propoundall the following requirements, to wit: (1) ed; but in that case, at the close of the evi. It must be such as will probably change dence offered by the territory, the defense the result if a new trial is granted. (2) It moved to strike the oral testimony offered as must have been discovered since the trial. . to the brands, and it was then held that (3) It must be such as could not have been such motion was not too late to save the discovered before the trial by the exercise right. In the case at bar, it is conceded by of due diligence. (4) It must be material to appellant's counsel that no objection was the issue. (5) It must not be merely cumu- made to the introduction of the oral evidence lative to the former evidence. (6) It must of Hancock's ownership, by reason of the not be merely impeaching or contradictory brands to which he testified; nor does any of the former evidence.” See, also, 12 Cyc. motion to strike it appear in the record. The 731; Berry v. State, 10 Ga. 511; lIoward v. | statutory method of proving ownership by State, 36 Fla. 21, 17 South. 81; 14 Enc. Pl. the brand certificate was therefore waived & Pr. 791, 702. Compared by these rules, by appellant. 3 Jones on Evidence, g 898; which have been adopted almost universally | 4 Elliott on Evidence, $ 3217. by the courts of this country as the true We see no error in the record, and the measure of an application for a new trial | judgment of the court below is affirmed. on the ground of newly discovered evidence, it will readily appear that the trial court MILLS, C. J., and ABBOTT, POPE, and was not in error in overruling the motion | McFIE, JJ., concur. PARKER, J., having for a new trial. The affidavits of McDugal

The affidarits of McDugal tried the case in the court below, did not and Graham attached to the motion only participate in this opinion.

(29 Nov. 459)

February 1, 1907, when said order of reSTATE ex rel. BOTSFORD y. LANGAN, Dis- newal was made from the said state court trict Judge. (No. 1,737.)

to the United States Circuit Court and prior (Supreme Court of Nevada. Sept. 26, 1907.) to June 12, 1907, when the order remand1. MANDAMU'S-OTHER ADEQUATE REMEDY.

ing said cause from said United States CirMandamus will not lie where there is a cuit Court back to said district court was plain, speedy, and adequate remedy, by motion

entered, to wit, on the 6th day of March, to dismiss an appeal, for determination of the

1907, and while said cause was pending on same matter.

removal in said United States Circuit Court. Ed. Xote.--For cases in point, see Cent. Dig. vol. 33, Mandamus, $ 8.]

the plaintiffs caused to be issued an alias 2. APPEAL-APPEALABLE ORDER.

summons out of the said state court, and An appeal from an order setting aside a deo caused said alias summons to be served by the fault entered by the clerk is not within the

sheriff of Esmeralda county upon said Chas. cases in which Civ. Prac. Act, $ 330, provides that an appeal may be taken, and therefore will H. Botsford, the relator herein, on or about not lie.

the 7th day of March, 1907, and on the 12th [Ed. Note.--For cases in point, see Cent. Dig day of June, 1907, the plaintiffs, through vol. 2. Appeal and Error, $ 766.]

their attorneys, caused the default of said Mandamus by the state, on the relation Charles H. Botsford and others of the deof Charles H. Botsford, against Frank P. Lan- fendants to be entered by the clerk of the gan, district judge of the First judicial dis- said district court of Esmeralda county. On trict. Application dismissed.

or about the 7th day of June, 1907, said Hall Thayer & Steele and C. L. Ilarwood,

Charles H. Botsford filed in said cause in

said state district court a motion to vacate for relator. Detch, Carney & Stevens, for re spondent.

and set aside said default, and on the 29th

day of June, 1907, after hearing arguments SWEENEY, J. This is an application for upon said motion, Judge Langan, district a writ of mandamus against Frank P. Lan- judge of said state court, entered an order gan, district judge of the First judicial dis- vacating and setting aside the said default, trict of the state of Nevada, for the purpose and thereafter, to wit, on the 6th day of of compelling him to hear a motion to dis- August, 1907, plaintiffs perfected an appeal solve or modify an injunction or increase to this court from said order setting aside the injunction bond in the case now pend- said default. Upon the 2d day of August, ing in the district court of the First judicial 1907, the relator herein, through his atdistrict of the state of Nevada in and for torneys, served upon the attorneys for said the county of Esmeralda, entitled "I. C. Van plaintiffs Van Riper and Hutchinson a notice Riper and Joseph H. Hutchinson, Plaintiffs, that on Monday, the 12th day of August, at v. Charles H. Botsford, James Davis, J. P. the county courthouse of Lyon county, Nev., at Loftus, and James Davis, Doing Business un- the town of Dayton, in said county, they would der the Firm Name and Style of Loftus & apply to the Honorable F. P. Langan, the reDavis, Goldfield Mohawk Mining Company, spondent herein, judge of the First judicial Goldfield Consolidated Mines Company, Com- district court aforesaid, to hear a motion to bination Mines Company, George S. Nixon, dissolve or modify the injunction theretofore and George Wingfield, Defendants."

granted in said cause, or to increase the It appears from the record in this case bond of the injunction theretofore issued, and that the plaintiffs filed a complaint against on said date attorneys for said plaintiffs apthe above-named defendants for the purpose peared and entered a protest against proceedof recovering from said defendants a two- ing, with the motion to dissolve or modify thirds interest in 100,000 shares of the cap- the injunction or to increase the bond for the ital stock of the Goldfield Consolidated Mines injunction, and the said district court, after Company of Nevada of the approximate considering the said protest, declined to provalue of half a million dollars. Upon filing | ceed, and refused to have the said hearing or of the complaint, an injunction was secured entertain the same in any way, and anfrom the district court on a bond in the nounced that, during the pendency of the sum of $15,000, enjoining the defendants appeal from the order vacating and setting from delivering to their codefendant Botsford aside the default, he would not proceed with the said stock in question until the determina- said motion or any motion of like character. tion of this suit. Upon the petition of the Upon the hearing of the application for a defendant Botsford for the removal of said writ of mandamus in this court, counsel for cause to the Circuit Court of the United the plaintiffs appeared and demurred to the States in and for the Ninth District of Ne- sufficiency of the petition, and further movvada, the district court of Esmeralda county ed to dismiss the application of relator for a remanded Silid case to said United States writ of mandamus upon the ground that the Circuit Court on or about the 1st day of defendants had a plain, speedy, and adequate February, 1.907, and thereafter, to wit, on remedy at law. Upon the overruling of the the 12th day of June, 1907, the said United demurrer as to the sufficiency of the petition, States Circuit Court remanded said cause counsel for relator moved that the appeal of back to the said district court in and for plaintiffs in the case entitled “L. C. Van Esmeralda county for trial. Subsequent to Riper and Joseph H. Hutchinson v. Charles

91 P.-47

H. Botsford et al.” be dismissed because of , appeal to this tribunal is a matter purely of want of jurisdiction in this court to de- statutory right, and, unless authorized by termine an appeal from an order vacating or statute, any attempted appeal taken from an setting aside a default entered by the clerk, ' order not appealable is roid, and therefore and moved that said case on appeal berein: could not confer any jurisdiction upon this be placed on the calendar, and they then and court to act. It is clear that, where an order there served notices upon counsel for the is nonappealable, no jurisdiction can be plaintiffs Van Riper and Ilutchinson, and conferred on or entertained by this court by asked a continuance of the case for eight : the perfecting of an attempted appeal. Under days, and moved that time for service of our construction of the statute above quoted notice of said application to have said case i regarding appeals, we are of the opinion that placed on the docket and notice of motion i the order in question from which the appeal to dismiss said appeal on the ground aforein the present case is attempted is nonappealsaid be shortened to eight days from then, I able.

able. Raver's Law & Collection Co., Inc., v. at which time both parties agreed to argue Standley (Cal. App.) 84 Pac. 214; Jordan v. said motions to dismiss the application for a Hutchinson, 39 Wash. 373, 81 Pac. 867; writ of mandamus and the appeal.

Bowen v. Webb, 34 Mont. 61, 85 Pac. 739; Stripping the application for a writ of Thornburg v. Gutridge, 46 Or. 286, 80 Pac. mandamus and the motion to dismiss said 100; Burbank v. Rivers, 20 Nev. 81, 16 Pac. appeal of their immaterial points raised, the 430. real decisive question involved in the merits of this application for a writ of mandamus

TALBOT, O. J., and NORCROSS, J., con

cur. and motion to dismiss said appeal is whether or not an appeal lies to this tribunal from an order setting aside or vacating a default entered by the clerk. As the motion to

(29 Ney. 465) dismiss the appeal raises the same point, to

VAN RIPER et al. v. BOTSFORD et al. wit, as to whether or not an appeal which is

(No. 1,735.) granted at this time in the case of Van Riper (Supreme Court of Nevada. Sept. 26, 1907.) et al. v. Botsford et al., infra, lies from

Appeal from District Court, Esmeralda an order setting aside or vacating a default County. entered by the clerk, as is desired and at

Action by L. C. Van Riper and another tempted to be accomplished through the against Charles H. Botsford and others. means of the extraordinary writ of manda- From an order setting aside a default, plainmus, applied for by relator, it is plain that tiffs appeal. Dismissed. relator has a plain, speedy, and adequate

Detch, Carney & Stevens, for appellants. remedy at law which is now effective in his favor, and for this reason the application for

Hall, Thayer & Steele and O. L. Harwood, for

respondents. a writ of mandamus is hereby ordered dismissed.

SWEENEY, J. Upon the authority of, and The sole question to be determined now

for the reasons stated in, the opinion renbefore the court is whether or not an appeal

dered in the case entitled Charles H. Botslies to this court from an order setting aside ford, Relator, v. Frank P. Langan, District or vacating a default entered by the clerk.

Judge of the First Judicial District, State Section 3125 of our Compiled Laws, being sec

of Nevada, Respondent, 91 Pac, 737, the motion 330 of our civil practice act, relating to

tion to dismiss the appeal in the present case appeals in civil actions, reads as follows:

is hereby granted. "An appeal may be taken: First. From a final judgment in an action, or special pro- TALBOT, C. J., and NORCROSS, J., conceedings commenced in the court in which the

cur. judgment is rendered, within one year after the rendition of judgment. Second. From a judgment rendered on an appeal from an

(35 Colo. 154) inferior court, within ninety days after the

Ex parte MOYER. rendition of the judgment. Third. From an

(Supreme Court of Colorado. September, 1905.) order granting or refusing a new trial, from

1. COURTS-SUPREME COURT-HABEAS CORPUS an order granting or dissolving an injunction, --JURISDICTION. and from an order refusing to grant or dis- The authority of the Supreme Court to issolve an attachment, and from any special | sue the writ of habeas corpus is derived from

the Constitution, and not from the statute. order made after the final judgment, within

2. SAME-PROCEEDINGS-PRACTICE. sixty days after the order is made and en

Where the Supreme Court in the exercise tered in the minutes of the court. Fourth. of its original jurisdiction issues the writ of From an interlocutory judgment or order in

habeas corpus, the practice is governed not by cases of partition whico determines the right

the statute, but by the rules of the court.

3. IIABEAS CORPUS-EFFECT OF WRIT-CUSof the several parties, and directs partition

TODY of PRISONER PENDING HEARING. sale, or division to be made, within sixty On return of a writ of habeas corpus, the days after the rendition of the sam

original custody of petitioner is superseded, and

he is then in the custody of the court, and pending the hearing the court may in its discretion admit him to bail, remand him, or make such order as shall be deemed proper.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2. Habeas Corpus, $ 63.] 4. SAME.

Where, on return of a writ of habeas corpus to the Supreme Court, the Governor of the state objects to the further exercise of jurisdiction by the court, and resists application for bail, pending the final hearing, on the ground that, as in his judgment the detention of petitioner is a military necessity, the court is without authority in the premises, and states that he holdls petitioner by virtue of his authority under the Constitution as Commander in Chief of the National Guard, and that peace cannot be restored in a county in insurrection unless petitioner remains in custody of the military authority, and the Adjutant General of the state declares that he detains petitioner as a mili, tary necessity, and that he has been commanded by the Governor not to surrender petitioner either on writ of habeas corpus or otherwise, such application for bail will be denied. 5. COURTS-SUPREME COURT-FLABEAS CORPUS -PRACTICE.

Though the chapter of the statutes on the subject of habeas corpus is not applicable to original proceedings in the Supreme Court, yet the same is usually adopted by that court for guidance on questions of practice.

Application for a writ of habeas corpus by Charles H. Moyer. On return of the writ, petitioner applied to be admitted to bail, unless the date for the hearing on the merits be fixed within five days from the return day, in accordance with Mills Ann. St. S 2108. Application for bail denied.

See 85 Pac. 190.

Richardson & Hawkins, for petitioner. N. C. Miller, Atty. Gen., I. B. Melville and H. J. IIersey, Asst. Attys. Gen., and John M. Waldron, for respondents.

fied and convinced that the said Moyer was a prominent leader of bands of lawless men engaged in acts of insurrection and rebellion, and that, so believing, he caused the arrest and detention of said Moyer; that in his judgment, in order to prevent the said Moyer from lending aid, comfort, and direction to the lawless persons now engaged in rebellion in said county, and in order to restore public tranquillity, it is absolutely necessary to detain said Moyer and restrain him of his liberty; that as the officer in command of the National Guard, now on duty, he detains the said Moyer, and that he has been commanded by the Governor of the state not to surrender or release the said Joyer during the existing and continuing condition of affairs in said county, either upon writ of babeas corpus or otherwise, until further orders. Attached to the return is a certificate of the Governor, in which he states that the facts contained in the return are true, and that the arrest and detention of said Moyer were effected un. der his direction as Governor and Commander in Chief of the National Guard of the state. and that in his judgment the continued retention of the person of said Moyer is a necessary and essential step in the restoration of public peace and order and the suppression of the existing state of insurrection and rebellion in said county. When the return was presented, the attorney for the petitioner requested that the date for the hearing upon the merits be fixed by the court within five days from the return day of the writ, in accordance with section 21:08. Mills' Ann. St., and stated that, unless the cause should be set within five days, the petitioner desired to be admitted to bail. The application for bail is resisted by the Governor upon the ground that as, in bis judgment, the detention of the petitioner is a military necessity, the court is without authority in the premises.

Our authority to issue the writ is derived from the Constitution, and not from the statute; and, when this court, in the exercise of its original jurisdiction, issues the writ, the practice is governed, not by the statute, but by the rules of the court. By the adjudicated cases, it is held that upon the return 07 the writ the original custody terminates, and that the prisoner is then in the custody of the court, and that pending the hearing the court may, in its discretion, admit him to bail or remand him to the officer who had him in charge, or make such order in the case as shall be deemed proper. Mr. Justice Swayne, speaking for the Supreme Court of the United States, in the case Barth v. Clise, reported in 12 Wall. 100, 20 L. Ed. page 393, said: "By the common law, upon the return of a writ of habeas corpus, and the production of the body of the party suink it out, the allthority under which the original commitinent took place is superseeled. After that time and until the case is finally disposed of, the safe.

STEELE, J. Upon the return day of the writ, and pursuant to its commands, the respondents named in the writ produced the body of the petitioner. Upon the same day Sherman M. Bell, as Brigadier General and Adjutant General of the state, made return to the writ, and therewith filed objections to the further exercise of jurisdiction by the court. From the return it appears that on the 230 day of March, 1901, the Governor of the state, by his proclamation, proclaimed and declared the county of San Miguel to be in a state of insurrection and rebellion : that immediately after the issuance of the proclamation the Governor commanded the respondent to forthwith proceed to the county of San Miguel with such portion of the National Guard of the state as might be deemed essential, and to use such means as might be deemed necessary for the restoration of peace in said county and for the ef. fectual suppression of the insurrection and rebellion; that, pursuant to the command of the Governor, he proceeded to the county of San Miguel with a portion of the National Guard of the state; that after his arrival at the county of San Miguel he became satis

control and direction of the court to which

keeping of the prisoner is entirely under the of San Miguel, and, incidentally, the tran

quillity of the people of the entire state. the return is made. The prisoner is detain- | Although many of the averments of the reed, not under the original commitment, but turn are denied, we shall accept, for the purunder the authority of the writ of habeas cor- pose of determining the question here prepus. Pending the hearing, he may be bailed sented, the statements therein contained as de die in diem, or be remanded to the jail true. And, if they are so accepted, we should whence he came, or be committed to any oth- not admit the petitioner to bail in the face er suitable place of confinement under the of the declaration of the Governor that the control of the court. He may be brought be- petitioner has aided and abetted those who fore the court from time to time by its order stand in defiance of the law, and that he is until it is determined whether he shall be the leader of a band of lawless men engaged discharged or absolutely remanded."

in acts of insurrection. To admit the petiThe rules announced in the cases cited tioner to bail before we have determined the are probably not applicable to cases like the main question would, it seems to us, be inpresent, where the executive head of the vading the legitimate province of the execugovernment, at the time of the return, ques- tive department, and that we are restrained tions the jurisdiccion of the court, and states from doing by the fundamental law. Noththat he holds the petitioner by virtue of his ing we have said should be regarded as foreauthority under the Constitution as the Com- shadowing the decision upon the important mander in Chief of the National Guard. questions which must necessarily be deterAnd we are required at this time to assume minell upon the final hearing. further jurisdiction or to hold the question Although the chapter of the statutes on of jurisdiction in abeyance by remanding the subject of habeas corpus is not applithe petitioner to the custody of the responde | cable to original proceedings in this court, we ents. We have undoubted authority to issue usually adopt the statute for our guidance on the writ in the first instance; but whether our questions of practice; and we should set the jurisdiction continues depends upon circum- bearing of this case wi...in five days from stances. In the case at bar the respondent the return day of the writ if all the members declares that he detains the petitioner as a of the court could then be present. The military necessity, and that he has been com

questions involved affect the privileges and manded by the Governor to not surrender

liberties of the people of the whole state, and the petitioner, either upon writ of habeas we think these questions are so important corpus or otherwise. The question, then, as as to require that all the members of the presented by the return, is: Can the Gov- court participate in their determination. We ernor, under the Constitution, and under the shall therefore decline to set the cause withconditions shown to exist, declare martial

in the time fixed by statute, but do set it law, and as incident thereto suspend the

for hearing on Thursday, May 5th, at the privilege of the writ of habeas corpus? If hour of 10 o'clock. the Constitution authorizes the Governor so

The application for bail is denied. to do, then we have no further jurisdiction. If the power to declare martial law and to

CAMPBELL, J., not participating. suspend the privilege of the writ of habeas corpus is confided by the Constitution to the Legislature, the Governor is without authority to detain the petitioner, and we

(151 Cal. 797) have jurisdiction to discharge him. At the PEOPLE ex rel. POST et al. v. SAN JOAtime of the issuance of the writ, it was QUIN VALLEY AGRICULTURAL stated that we reserved the right to pass

ASS'N et al. (Sac. 1,481.) upon the question of our jurisdiction when

(Supreme Court of California. Sept. 4, 1907. final disposition was made of the case; and,

Rehearing Denied Oct. 4, 1907.) if we were now to admit the prisoner to bail,

1. AGRICULTURE - DISTRICT ASSOCIATIONS — we should, in effect, determine that we have

PUBLIC CORPORATIONS-EXECUTIOX. jurisdiction, and should, pending the hear- An agricultural association, incorporated ing. grant all the relief that the petitioner under St. 1880, p. 62, c. 69, dividing the state demands. If the liberty of the petitioner

into agricultural districts, authorizing a certain

number of persons within such a district to alone were involved, we should probably

organize such an association, its real estate to resolve the doubt in his favor, admit him to be used for the purpose of holding exhibitions bail, and determine the question of jurisdic- of the live stock and products of the district,

with the view to the improvement of all intion afterward; but the head of the execu

dustries in the same, providing for a district tive department of the state has stated in board of agriculture, to be appointed by the the return to the writ that in his solemu Governor, and to qualify by oath, and declaring judgment peace and tranquillity cannot be

such an association, when formed, to be a state

institution, and that such board shall have exspeedily restored in the county of San Miguel

clusive control and management of the associaunless the petitioner remains in the custody tion for and in the name of the state-is a of the military authority. Therefore the

public corporation created for the local adminismatter involved affccts not only the liberty

iration of a part of the affairs of the state ; so

that its property, used to carry on the purposes of the petitioner, but the peace of the people for which it was formed, is not subject to exe

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