Corbett v. Swift.

DANIEL G. CORBETT, RESPONDENT, v. S. T. SWIFT, AP

PELLANT.

MOTION FOR NEW TRIAL-WAIVER OF NOTICE OF DECISION. Though a party in cases tried by the Court is not required to move for a new trial until "ten days after receiving written notice of the rendering of the decision of the Judge," yet if he proceed in the case upon actual knowledge of such decision, he waives his right to written notice. TIME TO MOVE FOR NEW TRIAL-PRACTICE ACT, SEC. 197. Under section one hundred and ninety-seven of the Practice Act, a party in a case tried by the Court has "ten days after receiving written notice of the rendering of the decision of the Judge " to move for a new trial, and as long as he does not act, waiving his right, no advantage can be taken of the fact that he has had actual knowledge.

WAIVER OF RIGHT TO MOVE FOR A NEW TRIAL. Where a party in a case tried by the Court appealed from a judgment without the preliminary step of moving for a new trial: Held, that he thereby waived such motion, and could not afterwards take advantage of the fact that he had received no written notice of the rendering of the decision of the Judge.

APPEAL from the District Court of the Second Judicial District, Ormsby County.

This was an action brought December 17th, 1868, against Moses Job, Margaret Job, (his wife) and S. T. Swift, to foreclose a mortgage for $2,000 and interest, given in 1864 by Job and wife to plaintiff on certain property in Carson City. It appears that after making the mortgage, and before suit brought, Job and wife made a deed of the same property to Swift, who was the only person that answered. Judgment having been rendered against him, he appealed to the Supreme Court, and at the July term, 1869, the judgment of the Court below was affirmed. (5 Nev. 201.). He then proceeded in the Court below to move for a new trial, as stated in the opinion.

T. W. W. Davies, for Appellant.

It has been held in California, under a statute identical with ours, that after an appeal from a judgment alone, a party may appeal from an order overruling a motion for new trial in the same case, provided the latter appeal is taken in time; and this, too, in a case where the order had been made overruling the motion for new trial prior to the appeal from the judgment. Much more then

Corbett v. Swift.

could the latter appeal be taken in the case at bar, for the reason that the order overruling the motion for new trial was not made until the appeal from the judgment had been taken and disposed of in this Court.

Clarke & Wells, for Respondent.

By the Court, WHITMAN, J.:

This appeal is another phase of the case decided, in 5 Nev. 201, under the title of Corbett v. Job et al.

After that decision, appellant gave notice of intention to move for a new trial, and within due time thereafter prepared and filed his statement. The District Judge denied the motion upon the ground that it came too late. Appellant insisted that as the case was one where the Court had rendered a decision, he might make his motion under the statute "within ten days after receiving written notice of the rendering of the decision of the Judge," (Stats. 1869, 226, Sec. 197) and that, as matter of fact, no such notice had been legally served; the service having been made upon appellant personally, instead of upon his attorney. The Court held that the suggestion of fact was correct, but that appellant had waived his right to require notice by accepting and acting upon his actual knowledge as evidenced by his appeal, and had waived his right to move for a new trial by allowing the time therefor to lapse.

There would seem to be little doubt of the correctness of this decision. Had the appellant taken no action, no advantage could have been taken of his actual knowledge; but he appealed from the whole judgment, recognizing it in its entirety, asking of this Court its vacation without the preliminary step of motion for new trial. The natural presumption is that such motion was waived.

Had the notice of rendition of judgment in fact been given, and the appeal been taken, it would not be claimed that appellant could make his motion for a new trial at this time. Why any more, when it is apparent that the full object of the notice has been accomplished, and he has suffered no wrong?

It would look like trifling with the practice of the Courts to adopt any other view than that announced by the District Court. The judgment of that Court is affirmed.

Fitton v. The Inhabitants of Hamilton City.

JAMES FITTON, "RESPONDENT, v. THE INHABITANTS OF HAMILTON CITY et als., APPELLANTS.

ENTERING AND HOLDING UNDER LEASE NOT SIGNED BY TENANT. If a person obtain possession and occupy premises under lease, (though not signed by him) he should be holden to accept subject to all the covenants and obligations of the instrument.

ACTION FOR RENT ON LEASE NOT SIGNED BY TENANT. Where a tenant holds premises under a lease not signed by him, although a technical action of covenant might not be supported, an action in the nature of assumpsit for rent can certainly be maintained.

LEASE NOT SIGNED BY TENANT AS EVIDENCE AGAINST HIM. In an action for rent against a tenant, who holds under a lease signed only by the lessor, such lease is admissible in evidence to show the conditions and reservations under which the possession is held.

EFFECT OF HOLDING UNDER LEASE NOT SIGNED BY TENANT. Where a tenant took and held possession of premises under a lease not signed by him: Held, that his acceptance of possession was equivalent to an execution of the instrument. HAMILTON CITY PAROL CONTRACTS. The charter of Hamilton City providing that" all scrip and bonds issued and contracts and agreements made shall be signed by the president and countersigned by the clerk," (Stats. 1869, 165, Sec. 14) does not prohibit parol contracts by the city, but only designates the manner in which written contracts shall be executed.

PAROL AND IMPLIED CONTRACTS BY MUNICIPAL CORPORATIONS.

A municipal corporation, in the absence of statute to the contrary, may, like any other corporation, render itself liable on parol or implied contracts.

ENTERING UNDER LEASE WRONGLY DESCRIBING LESSEE-ESTOPPEL. Where the City of Hamilton entered upon and held certain premises under a lease purporting to run to the "Trustees of Hamilton City," but signed only by the lessor: Held, that the corporation was estopped from taking advantage of the fact that it was not correctly named in the lease. LEASE-TERM CREATED BY HOLDING OVER. Where a tenant under a lease for three months held over after the expiration of the term with the consent of the landlord: Held, that a new term of three months was created, and that it was no answer to the landlord's claim for rent for such new term, that the tenant did not occupy the premises for the whole of it.

STATUTE RELATING TO TENANTS HOLDING OVER. Where a tenant under a lease

for a term less than a year holds over with the consent of his landlord, a new tenancy for a like term is created by virtue of the statute. (Stats. 1864-5, 264.)

APPEAL from the District Court of the Eighth Judicial District, White Pine County.

This action was instituted by James Fitton as trustee of Mary Jane Allen, against " P. C. Hyman, E. T. Estes, Reuben Barney,

Fitton v. The Inhabitants of Hamilton City.

E. H. Sanderson and H. S. Sanders, styling themselves Trustees of Hamilton City, and the Inhabitants of Hamilton City." After the execution of the lease by R. M. Peters, he sold the property leased to Richard N. Allen, who afterwards conveyed it to the plaintiff Fitton, trustee as aforesaid.

Will Campbell, J. O. Darrow and A. M. Hillhouse, for Appellants.

I. The corporation occupied the premises only sixteen days over the time for which rent was paid, and it contends it is liable only for two hundred and fifty dollars, one month's rent.

II. The instrument called a lease was improperly admitted in evidence, because it was not signed by the lessee, Hamilton City. It was no lease. Hamilton City under its charter could not make a lease, except by writing, signed and countersigned as therein provided. Being a creature of statute, it could make no contract except by strictly following the provisions of the law creating it. The contract purports to be made with the "Trustees of Hamilton City," and there being no such persons in existence, cither natural or artificial, the instrument is void, and the city cannot be bound by it.

III. It is claimed that the contract was ratified, but we contend there is no evidence of ratification by the board of trustees, and further, that an instrument which is void for want of mutuality or any other cause, cannot be ratified. If it could be ratified, it could only be by an instrument signed as required by the charter, and none such was proven and none such exists.

IV. If there was a lease, it was only binding on the corporation so long as it held the premises. It agreed to pay the "rent as above stated for such further time as the lessees might hold the same," and could not be held for rent longer than it held after the expiration of the term agreed on. The construction to be placed upon the instrument is that which is strongest against the grantor.

V. It is claimed that the statute of 1865 created a new term ; but we apprehend, if a contract is made for a term, and the lessee

Fitton v. The Inhabitants of Hamilton City.

covenants that he will pay only for such further time as he may hold the premises, such a construction would be stretching the statute to an unwarrantable extent. (1 Hilliard on Real Property, 212, Sec. 77, and authorities there cited.)

Gehr & O'Dougherty and A. C. Ellis, for Respondent.

By the Court, LEWIS, C. J.:

The Judge by whom this action was tried considered the evidence sufficient to warrant the following findings of fact, which embody the essential issues between the parties and sufficiently explain the character of the action.

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"The defendants are the individuals composing the board of trustees of the municipal corporation of the Inhabitants of Hamilton City,' and that corporation itself.

"The corporation was created and duly organized by and under the act of the Legislature of the State of Nevada, entitled 'An Act to incorporate the town of Hamilton,' approved March 6th, 1869.

"On or about the fourteenth day of April, A.D. 1869, and after the organization of said corporation, its board of trustees adopted a resolution authorizing and directing a committee of their body to take a lease of a certain building situated in Hamilton for a term of three months, with the privilege of six, at a rent not exceeding two hundred and fifty dollars per month, for the use of the city for the purposes of a city jail, etc. This resolution was recorded in the minutes of the proceedings of the board, and duly approved, signed by the president of the board and by its clerk.

"Under this authority, the committee obtained from R. M. Peters, assignor of plaintiff, a lease of the lot upon which said building was situated, for the term of three months from the date of the lease, April 19th, 1869, with the privilege of three months additional from the nineteenth of July, 1869, at a rent of seven hundred and fifty dollars gold coin, the rent to be paid monthly in installments of two hundred and fifty dollars in advance, and also rent as above stated for such further time as the lessees might hold the same.

"This lease was signed only by the lessor, but was accepted by the committee and remained in their possession. Their proceed