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Page Williams, Ex parte (Cal. Sup.).

568 W. P. Callahan & Co. v. Chickasha Cotton Williams v. First Nat. Bank (Or.). 890 Oil Co. (Okl.)...

331 Williams, Scott v. (Kan.)....

550 W. P. Fuller & Co. v. Ryan (Wash.). .. .. 485 Williams v. Spokane Falls & N. Ry. Wright v. Coules (Cal. App.).

809 (Wash.) 491 Wright v. Jessup (Wash.)..

930 Williams v. United States (Okl.).

647 Wyckoff v. Southern Pac. Co. (Cal. App.). . 203 Wilmans Co., E. P. Vandercook Co. v. Wyoming Coal Min. Co. v. State (Wyo.).. 337 (Cal. App.).

. 1116 Wyoming Coal Min. Co. v. State (Wyo.). . 984 Wilmot v. Oregon R. Co. (Or.).

528 Wilson, Betz v. (Okl.).

814 Wilson v. Curry (Wash.).

787 . 1065

Yates, Andrino V. (Idaho)..
Yates, Territory v. (Okl.).

863 Wilson, McCabe & Steen Const. Co. v. (Okl.)

320 Yellowstone Park R. Co. v. Bridger Coal Co. (Mont.)....

963 Wilson, Pinney v. (Cal. App.).

.1111 Winch, Pickering v. (Or.).

763

Yordy, Ontario Land Co. v. (Wash.). 257 Winckler v. Hunt (Wash.)..

.1151

Yosemite Gold Min. Co., Wemple v. (Cal. Winyer, Bird v. (Wash.).

280 279

App.) Wiren, Marquis v. (Kan.).

1135 Wolfard v. Fisher (Or.). 53) Zaring, Anderson v. (Okl.).

.1150 Womble y. Pike (Okl.). 427 Ziehme v. Parish (Kan.)

685 Woodbury, State v. (Kan.)..

701 | Zindars v. Erie Gas & Mineral Co. (Kan.) 188 Wood, Curtis & Co., Donnellan v. (Cal. Zook, Grover v. (Wash.)..

638 App.)

235

REHEARINGS DENIED.

(Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this reporter.]

Guillaume y. K. S. D. Fruit Land Co. (Or.) 86, Warner Valley Stock Co. v. Morrow (Or.) 86 P. 883.

P. 369.

861

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THE

PACIFIC REPORTER.

VOLUME 87.

(29 Nev. 191)

5. EVIDENCE-OPINION EVIDENCE.

The testimony of the attorney of defendSTATE 'ex rel. LAUNIZA V. JUSTICE

ant, sued in justice court for trespass to land, COURT OF CARSON. (No. 1,696.)

that from an examination of the documentary (Supreme Court of Nevada. Oct. 3, 1906.) evidence it was apparent that plaintiff did

not have title to all the lands, was not testi1. CERTIORARI-RETURN-RECORD CONCLU mony of a fact, but the mere opinion of the BIVENESS.

attorney on a matter of law, for the court The affidavit of the attorney of defendant to determine. filed in the Supreme Court on certiorari to review the action of a justice of the peace in

Writ of certiorari by the state, on the re refusing to certify the case to the district lation of Juan Launiza, against the justice court on the ground that title to real property court of Carson township. Writ dismissed. was involved, which avers that defendant by oral answer in justice court entered a general

Samuel Platt, for petitioner. Alford denial to the complaint, claiming damages for Chratz, for respondent. a trespass on lands alleged to be owned and possessed by plaintiff, does not show there was an oral answer where the record

TALBOT, J. Martha H. Blackwell brought as certified by the justice fails to show that suit in the justice court of Carson townthere was any answer.

ship against Juan Launiza claiming damages [Ed. Note.-For cases in point, see vol. 9,

for the herding of sheep on lands allegeć to Cent. Dig. Certiorari, $8 143-146.)

be owned and possessed by her and her as2. JUSTICES OF THE PEACE-JURISDICTION signors. The affidavit of relator's attorney TITLE TO REAL ESTATE.

filed in this court states that by oral answer In an action in justice court for trespass on plaintiff's land, defendant testified that so

defendant entered a general denial to the alfar as he knew the title to the land was in legations of the complaint, but the record plaintiff. There was a failure to prove that as certified by the justice of the peace fails plaintiff had the patent right to a particular

to show that there was any answer, either 80 acres, but it was not shown that she did not have a prior possession thereto, nor did it oral or written, verified or unverified, quesappear whether the trespass was committed on tioning plaintiff's title to the lands. She reall the lands claimed by plaintiff or only on covered a verdict and judgment for $75 and lands other than the 80 acres. Held not to show that the right to real property was neces

for costs and attorney's fees. Patents, state sarily involved within Const. art. 6, § 8. pro

contracts, and deeds introduced in evidence viding that justice courts shall not have juris- by her on the trial indicated that she was diction in cases where_ title to real estate is the owner of several hundred acres of the involved, and Comp. Laws, $ 3634, making

land, but there was a deed to her from Clara it the duty of a justice in such case to certify the case to the district court.

Sweeney, given three years previously, for 80 [Ed. Note.-For cases in point, see vol. 31,

acres, for which the latter was not showr. to Cent. Dig. Justices of the Peace, $ 97.)

have had any patent, contract right, or title. 8. SAME.

It appears from the record that the defendWhere plaintiff, suing in justice court for

ant in that action, who is the relator here, a trespass to land gave no evidence of his testified so far as he knew the title to the right by patent, deed, prior possession, or other

lands was in the plaintiff and that he was not wise, to any part of the land, the justice had jurisdiction to enter judgment for defendant

aware of any omission in her title. Defendfor the costs; title to land not being involved.

ant's counsel was sworn as a witness, and 4. SAME.

stated that from an examination of the docuWhere, in trespass to land, brought in mentary evidence it was apparent that plainJustice court, plaintiff did not prove ownership tiff did not have title to all the lands. Thereto the land, and there was no evidence that the same belonged to a third person, and de

upon, the attorney for the defendant renewed fendant made no claim to the land, title to

a motion to certify the case to the district land was not necessarily involved.

court for trial upon the ground that the title [Ed. Note.For cases in point, see vol. 31,

to real property was necessarily involved Cent. Dig. Justices of the Peace, $ 97.]

in the determination of the action, and that 87 P-1

the justice court had no jurisdiction under clude that the failure of the plaintiff to section 3034 of the Compiled Laws.

prove ownership by patent to part or all The proceeding here is brought to review of the land, did not make it necessary to have the action of the justice court in refusing the case certified to the district court. If to certify the case to the district court for she had failed to introduce evidence of her trial and the question for determination is right by 'patent, deed, prior possession, or whether the title to real property was neces otherwise, to any part of the land, the justice sarily involved so as to deprive the justice court would still have had jurisdiction to court of jurisdiction. Section 8 of article enter judgment in favor of the defendant for 6 of the Constitution of Nevada provides costs. If she did not prove ownership by that justices' courts shall not have jurisdic prior possession when she had not connected tion "in cases wherein the title to real herself with the patent right, then there was estate or mining claims, or questions of no proof that the land belonged to her, and boundaries to lands are involved," and sec there being none that it belonged to any tion 3634 of the Compiled Laws: "The par one else, such failure of proof did not raise ties shall not be at liberty to give evidence any conflict in the evidence, and did not upon any question which involves the title 'show that the title was necessarily involved to, or the right of possession to, or the pos when the defendant, as a witness, made no session of, real property or mining claims, claim to the land nor contention that it beor upon any question involving boundaries longed to any third person, and his conduct to land, or the legality of any tax, impost, and testimony were more nearly tantamount assessment, toll, or municipal fine, nor shall to an admission that plaintiff was the owner. any issue presenting such question be tried The defendant's attorney did not testify to by the justice; and if it appear from the any new facts, but in regard to his opinion plaintiff's own showing on the trial, or from as to whether the evidence required the certithe answer of the defendant, verified by his fication of the case, a matter of law for the oath, that the determination of the action court. Oregon Short Line R. Co. v. District will necessarily involve either of such ques Court (Utah) 85 Pac. 362, 363, and cases tions, the justice shall suspend all further there cited, are instructive regarding the proceedings in the action, and certify the proposition here involved. pleadings, or if the pleadings be oral, a tran It is ordered that the writ be dismissed, script of the same, from his docket to the and that the papers certified from the justice district court for the county; and from the court be returned to that tribunal. time of filing such pleadings or transcript with the clerk of the district court, such FITZGERALD, C. J., concurs. district court shall have over the action the same jurisdiction as if it were originally

NORCROSS, J. I concur in the order discommenced therein." It is not pretended

missing the writ. If the transcript of the that a verified answer was filed and the

justice's docket had shown that an oral anaffidavit is insufficient to show that there

swer had been filed denying plaintiff's allegawas an oral answer questioning plaintiff's

tions of ownership or right of possession. right to the lands, for the proceedings in

then, in my judgment, it would have appeared the lower court are required to be established

that an issue was raised requiring proof by the record as certified. Alexander v. upon the part of plaintiff to establish her Archer, 21 Nev. 32, 24 Pac. 373.

allegations of title or right of possession, We need not determine whether, in the

and such proof the justice, under the proabsence of an issue raised by answer, evidence

visions of the statute, would not have juriscould be introduced on the trial to show a

diction to hear. His duty then would have conflict in regard to the title. It is sufficient

been to have certified the case to the District

Court. for the purposes of this case to say that if

King V. Kutner-Goldstein Co., 135 it could be so introduced and considered,

Cal. 65, 67 Pac. 10. While the justice did the evidence submitted did not show that the

hear testimony upon the question of title. right to real property was necessarily in

I think it was improper for him to have done volved. There was a failure to prove that

so, and such action might have been sufficient the plaintiff and her grantor had the patent

to have supported a conclusion that the title right to this particular 80 acres, but it is

or right of possession of real property was not shown that she did not have a prior involved in the action, did not the testimony possession which would have raised sufficient of the defendant, practically conceding plainpresumption of her ownership in the absence

tiff's title, negative such a conclusion. of patents and deeds. Nor does it appear whether the trespass was committed on all

(29 Nev. 226) the lands claimed by the plaintiff, or only on lands other than this 80 acres, which

Es parte PATTERSON. (No. 1,705.) would not necessarily involve the title to

(Supreme Court of Nevada. Oct. 9, 1906.) the latter. If evidence may be considered

CRIMINAL LAW — PUNISIIMENT - SENTENCEfor any purpose when no issue is properly

FINE AND IMPRISONMENT.

A sentence reciting the conviction of acshown, we may distinguish between absence

cused of a criminal offense, and that he "be of proof and conflict in evidence, and con fined * * * $500 and imprisonment in the

tounty jail *

. for
for the

the term of 180 mitment to prison antil said fine be paid days in addition to said fine," imposes abso at bate of $2, etc; and (2) an absolute imlutely a fine of $500 without order of commit

prisonment for 180 days. There being no ment until the same be paid, and an absolute imprisonment for 180 days, and accused, on

alternative in the first part of the sentence having been imprisoned 180 days, is entitled of discharging the fine of $500 by serving to his discharge, though the fine has not been

one day's imprisonment for each $2 thereof, paid.

such part of the sentence having, as above Petition by R. W. Patterson for a writ of

seen, been obliterated, such fine is absolute, habeas corpus against C. P. Ferrell, sheriff

and the petitioner could not be imprisoned of Washoe county. Granted, and petitioner

at all under said first part; and the petidischarged.

tioner having with credits, etc., served the full

term of 180 days imposed upon him under M. B. Moore, for applicant. D. P. Moran,

the second part of said sentence, he was, of for respondent.

course, entitled to his discharge. FITZGERALD, C. J. Petitioner was im It appearing that the respondent herein, prisoned in the jail of Washoe county under

C. P. Ferrell, sheriff of Washoe county, has a warrant of conmitment made by the justice

no legal warrant for longer holding the of the peace of Sparks township in said

petitioner in custody, it is therefore ordered county. The conmitment was in the follow

that the petitioner be forthwith discharged ing form: “State of Nevada, Plaintiff v.

from custody by the respondent herein. R. W. Patterson, Defendant. A complaint

TALBOT and NORCROSS, JJ., concur. under oath having been filed in this court on the 30th day of April, 1906, charging said defendant, R. W. Patterson, of a certain pub

(29 Nev. 203) lic offense, to wit, a misdemeanor, committed STATE y. JOIINNY et al. (No. 1,695.) on the 20th day of April, 1906, and a war

(Supreme Court of Nevada. Oct. 8, 1906.) rant of arrest having been duly issued on

1. JURY-SELECTING JURY-IRREGULARITIES. said 30th day of April, 1906, for the arrest

Though the clerk of the board of county of said defendant; and said defendant hav conimissioners cannot legally select, nor urge ing been duly arrested, and thereafter on

the selection of any juror, the board in select

ing jurors for attendance on the district court the 2d day of May, 1906, tried before the

may take advantage of information in the poscourt with a jury so found guilty as charged session of the clerk, so long as it exercises in the complaint, and all and singular the its own judgment in conformity with the stat

ute. law and the premises by the court here understood and fully considered, and no suf

[Ed. Note.--For cases in point, see vol. 31,

Cent. Dig. Jury, $ 284.) ficient cause appearing why judgment should

2. CRIMINAL LAW - SELECTION OF JURY not be pronounced against said defendant:

HARLESS DRROR. Wherefore, it is ordered and adjudged by In a criminal case, it was alleged that the court that for said offense you, the said the clerk of the board of county commissioners R. W. Patterson, be fined the sum of five

was present when the board selected jurors

for attendance on the district court and recomhundred dollars, and imprisoned in the coun mended a large number of electors to be selectty jail of said county of Washoe for the ed as jurors. It was not shown that any of term of one hundred and eightly days in

the persons whom the clerk suggested' were

among the 12 who tried accused, or were on the addition to said fine, from date hereof.

panel drawn from the box and in attendance tecast Tour Dental-being attir tatt on the court at the time of the trial. It was ef ondoportadellas-of suit Hihet not claimed that the accused did not have an Dated in open court the 3d day of May, 1906.

impartial jury. Held, that the irregularity,

if any, arising from the conduct of the clerk, [Signed] James Pollock, Justice of the Peace.” was not prejudicial to accused. Petitioner had, with credits, etc., served the [Ed. Note.For cases in point, see vol. 15, full term of the 180 days stated in the

Cent. Dig. Criminal Law, $ 3115.] conmitment; but had not paid the fine of 3. HOMICIDE-INDICTMENT-SUFFICIENCY. $500 therein stated.

Under Comp. Laws, $ 4208, providing that

an indictment shall be sufficient where the act Two questions were argued by counsel

charged as an offense is set forth in ordinary in the case : (1) Does the warrant of com and concise language so as to enable a person mitment above stated impose upon the peti

of common understanding to know what is intioner a fine of $500, and also give him the

tended, etc., an indictment charging that ac

cused feloniously and of malice aforethought privilege of paying the said fine at rate of killed a human being by striking, cutting, and one day for each two dollars thereof? And stabbing, by means of which he died, being in (2) does the statute warrant the justice in

substantial conformity to the form prescribed imposing such sentence, to wit, absolute im

by section 4200, is not open to the objections

that it does not charge accused with murder, prisonment for the full term of 180 days,

or aver that the acts were done with intent to and in addition thereto imprisonment for kill. 250 days, conditioned upon his failure to

[Ed. Note.--For cases in point, see vol. 26, pay tbe fine of $500? Under the view that

Cent, Dig. Homicide, $$ 192–196.) we take of the case, the second question need

4. CRIMINAL LAW-TRIAL-SEPARATE TRIAL OF

DEFENDANTS-TIME TO DEMAND SEPARATH not be determined. The sentence in the war TRIAL. rant of commitment is plainly: (1) An ab Comp. Laws, $$ 4325-4327 (Cr. Prac. Act solute fire for $500, without order of com 88 300-362), provide that where two or more

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