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[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 v. K. S. D. Fruit Land Co. (Or.) 861 Warner Valley Stock Co. v. Morrow (Or.) 86 P. 883.

86 | Wp. 369.

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PACIFIC REPORTER.

VOLUME 87.

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The affidavit of the attorney of defendant filed in the Supreme Court on certiorari to review the action of a justice of the peace in refusing to certify the case to the district court on the ground that title to real property was involved, which avers that defendant by oral answer in justice court entered a general denial to the complaint, claiming damages for a trespass on lands alleged to be owned and possessed by plaintiff, does not show that there was an oral answer where the record as certified by the justice fails to show that there was any answer.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Certiorari, §§ 143-146.]

2. JUSTICES OF THE PEACE-JURISDICTIONTITLE TO REAL ESTATE.

In an action in justice court for trespass on plaintiff's land, defendant testified that so far as he knew the title to the land was in plaintiff. There was a failure to prove that plaintiff had the patent right to a particular 80 acres, but it was not shown that she did not have a prior possession thereto, nor did it appear whether the trespass was committed on all the lands claimed by plaintiff or only on lands other than the 80 acres. Held not to show that the right to real property was necessarily involved within Const. art. 6, § 8. providing that justice courts shall not have jurisdiction in cases where title to real estate is involved, and Comp. Laws, $ 3634, making it the duty of a justice in such case to certify the case to the district court.

[Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, § 97.] 8. SAME.

Where plaintiff, suing in justice court for a trespass to land gave no evidence of his right by patent, deed, prior possession, or otherwise, to any part of the land, the justice had jurisdiction to enter judgment for defendant for the costs; title to land not being involved. 4. SAME.

Where, in trespass to land, brought in justice court, plaintiff did not prove ownership to the land, and there was no evidence that the same belonged to a third person, and defendant made no claim to the land, title to land was not necessarily involved.

[Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, 97.]

87 P.-1

5. EVIDENCE-OPINION EVIDENCE.

The testimony of the attorney of defendant, sued in justice court for trespass to land, that from an examination of the documentary evidence it was apparent that plaintiff did not have title to all the lands, was not testimony of a fact, but the mere opinion of the attorney on a matter of law, for the court to determine.

Writ of certiorari by the state, on the relation of Juan Launiza, against the justice court of Carson township. Writ dismissed.

Samuel Platt, for petitioner. Alford Chratz, for respondent.

TALBOT, J. Martha H. Blackwell brought suit in the justice court of Carson township against Juan Launiza claiming damages for the herding of sheep on lands alleged. to be owned and possessed by her and her assignors. The affidavit of relator's attorney filed in this court states that by oral answer defendant entered a general denial to the allegations of the complaint, but the record as certified by the justice of the peace fails to show that there was any answer, either oral or written, verified or unverified, questioning plaintiff's title to the lands. She recovered a verdict and judgment for $75 and for costs and attorney's fees. Patents, state contracts, and deeds introduced in evidence by her on the trial indicated that she was the owner of several hundred acres of the

land, but there was a deed to her from Clara Sweeney, given three years previously, for 80' acres, for which the latter was not showr. to have had any patent, contract right, or title. It appears from the record that the defendant in that action, who is the relator here, testified so far as he knew the title to the lands was in the plaintiff and that he was not aware of any omission in her title. Defendant's counsel was sworn as a witness, and stated that from an examination of the documentary evidence it was apparent that plaintiff did not have title to all the lands. Thereupon, the attorney for the defendant renewed a motion to certify the case to the district court for trial upon the ground that the title to real property was necessarily involved in the determination of the action, and that

the justice court had no jurisdiction under section 3634 of the Compiled Laws.

The proceeding here is brought to review the action of the justice court in refusing to certify the case to the district court for trial and the question for determination is whether the title to real property was necessarily involved so as to deprive the justice court of jurisdiction. Section 8 of article 6 of the Constitution of Nevada provides that justices' courts shall not have jurisdiction "in cases wherein the title to real estate or mining claims, or questions of boundaries to lands are involved," and section 3634 of the Compiled Laws: "The parties shall not be at liberty to give evidence upon any question which involves the title to, or the right of possession to, or the possession of, real property or mining claims, or upon any question involving boundaries to land, or the legality of any tax, impost, assessment, toll, or municipal fine, nor shall any issue presenting such question be tried by the justice; and if it appear from the plaintiff's own showing on the trial, or from the answer of the defendant, verified by his oath, that the determination of the action will necessarily involve either of such questions, the justice shall suspend all further proceedings in the action, and certify the pleadings, or if the pleadings be oral, a transcript of the same, from his docket to the district court for the county; and from the time of filing such pleadings or transcript with the clerk of the district court, such district court shall have over the action the same jurisdiction as if it were originally commenced therein." It is not pretended that a verified answer was filed and the affidavit is insufficient to show that there was an oral answer questioning plaintiff's right to the lands, for the proceedings in the lower court are required to be established by the record as certified. Alexander v. Archer, 21 Nev. 32, 24 Pac. 373.

We need not determine whether, in the absence of an issue raised by answer, evidence could be introduced on the trial to show a conflict in regard to the title. It is sufficient for the purposes of this case to say that if it could be so introduced and considered, the evidence submitted did not show that the right to real property was necessarily involved. There was a failure to prove that the plaintiff and her grantor had the patent right to this particular 80 acres, but it is not shown that she did not have a prior possession which would have raised sufficient presumption of her ownership in the absence of patents and deeds. Nor does it appear whether the trespass was committed on all the lands claimed by the plaintiff, or only on lands other than this 80 acres, which would not necessarily involve the title to the latter. If evidence may be considered for any purpose when no issue is properly shown, we may distinguish between absence of proof and conflict in evidence, and con

clude that the failure of the plaintiff to prove ownership by patent to part or all of the land, did not make it necessary to have the case certified to the district court. If she had failed to introduce evidence of her right by patent, deed, prior possession, or otherwise, to any part of the land, the justice court would still have had jurisdiction to enter judgment in favor of the defendant for costs. If she did not prove ownership by prior possession when she had not connected herself with the patent right, then there was no proof that the land belonged to her, and there being none that it belonged to any one else, such failure of proof did not raise any conflict in the evidence, and did not show that the title was necessarily involved when the defendant, as a witness, made no claim to the land nor contention that it belonged to any third person, and his conduct and testimony were more nearly tantamount to an admission that plaintiff was the owner. The defendant's attorney did not testify to any new facts, but in regard to his opinion as to whether the evidence required the certification of the case, a matter of law for the court. Oregon Short Line R. Co. v. District Court (Utah) 85 Pac. 362, 363, and cases there cited, are instructive regarding the proposition here involved.

It is ordered that the writ be dismissed, and that the papers certified from the justice court be returned to that tribunal.

FITZGERALD, C. J., concurs.

NORCROSS, J. I concur in the order dismissing the writ. If the transcript of the justice's docket had shown that an oral answer had been filed denying plaintiff's allegations of ownership or right of possession. then, in my judgment, it would have appeared that an issue was raised requiring proof upon the part of plaintiff to establish her allegations of title or right of possession, and such proof the justice, under the provisions of the statute, would not have jurisdiction to hear. His duty then would have been to have certified the case to the District Court. King v. Kutner-Goldstein Co., 135 Cal. 65, 67 Pac. 10. While the justice did hear testimony upon the question of title. I think it was improper for him to have done so, and such action might have been sufficient to have supported a conclusion that the title or right of possession of real property was involved in the action, did not the testimony of the defendant, practically conceding plaintiff's title, negative such a conclusion.

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County jail for for the term of 180 days in addition to said fine," imposes absolutely a fine of $500 without order of commitment until the same be paid, and an absolute imprisonment for 180 days, and accused, on having been imprisoned 180 days, is entitled to his discharge, though the fine has not been paid.

Petition by R. W. Patterson for a writ of habeas corpus against C. P. Ferrell, sheriff of Washoe county. Granted, and petitioner discharged.

M. B. Moore, for applicant. E. P. Moran, for respondent.

FITZGERALD, c. J. Petitioner was imprisoned in the jail of Washoe county under a warrant of commitment made by the justice of the peace of Sparks township in said county. The conmitment was in the following form: "State of Nevada, Plaintiff v. R. W. Patterson, Defendant. A complaint under oath having been filed in this court on the 30th day of April, 1906, charging said defendant, R. W. Patterson, of a certain public offense, to wit, a misdemeanor, committed on the 26th day of April, 1906, and a warrant of arrest having been duly issued on said 30th day of April, 1906, for the arrest of said defendant; and said defendant having been duly arrested, and thereafter on the 2d day of May, 1906, tried before the court with a jury so found guilty as charged in the complaint, and all and singular the law and the premises by the court here understood and fully considered, and no sufficient cause appearing why judgment should not be pronounced against said defendant: Wherefore, it is ordered and adjudged by the court that for said offense you, the said R. W. Patterson, be fined the sum of five hundred dollars, and imprisoned in the county jail of said county of Washoe for the term of one hundred and eightly days in addition to said fine, from date hereof. iz euse tune the be not paid-being at the rate of one day for each the dollars of said finer Dated in open court the 3d day of May, 1906. [Signed] James Pollock, Justice of the Peace." Petitioner had, with credits, etc., served the full term of the 180 days stated in the conmitment; but had not paid the fine of $500 therein stated.

Two questions were argued by counsel in the case: (1) Does the warrant of commitment above stated impose upon the petitioner a fine of $500, and also give him the privilege of paying the said fine at rate of one day for each two dollars thereof? And (2) does the statute warrant the justice in imposing such sentence, to wit, absolute imprisonment for the full term of 180 days, and in addition thereto imprisonment for 250 days, conditioned upon his failure to pay the fine of $500? Under the view that we take of the case, the second question need not be determined. The sentence in the warrant of commitment is plainly: (1) An absolute fine for $500, without order of com

mitment to prison until said fine be paid at rate of $2, etc; and (2) an absolute imprisonment for 180 days. There being no alternative in the first part of the sentence of discharging the fine of $500 by serving one day's imprisonment for each $2 thereof, such part of the sentence having, as above seen, been obliterated, such fine is absolute, and the petitioner could not be imprisoned at all under said first part; and the petitioner having with credits, etc., served the full term of 180 days imposed upon him under the second part of said sentence, he was, of course, entitled to his discharge.

It appearing that the respondent herein, C. P. Ferrell, sheriff of Washoe county, has no legal warrant for longer holding the petitioner in custody, it is therefore ordered that the petitioner be forthwith discharged from custody by the respondent herein.

TALBOT and NORCROSS, JJ., concur.

(29 Nev. 203)

STATE v. JOHNNY et al. (No. 1,695.) (Supreme Court of Nevada. Oct. 8, 1906.) 1. JURY-SELECTING JURY-IRREGULARITIES.

Though the clerk of the board of county commissioners cannot legally select, nor urge the selection of any juror, the board in selecting jurors for attendance on the district court may take advantage of information in the possession of the clerk, so long as it exercises its own judgment in conformity with the statutc.

[Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Jury, § 284.]

2. CRIMINAL LAW-SELECTION HARMLESS ERROR.

OF JURY

In a criminal case, it was alleged that the clerk of the board of county commissioners was present when the board selected jurors for attendance on the district court and recommended a large number of electors to be selected as jurors. It was not shown that any of the persons whom the clerk suggested' were among the 12 who tried accused, or were on the panel drawn from the box and in attendance on the court at the time of the trial. It was not claimed that the accused did not have an impartial jury. Held, that the irregularity, if any, arising from the conduct of the clerk, was not prejudicial to accused.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3115.]

3. HOMICIDE-INDICTMENT-SUFFICIENCY.

Under Comp. Laws, § 4208, providing that an indictment shall be sufficient where the act charged as an offense is set forth in ordinary and concise language so as to enable a person of common understanding to know what is intended, etc., an indictment charging that accused feloniously and of malice aforethought killed a human being by striking, cutting, and stabbing, by means of which he died, being in substantial conformity to the form prescribed by section 4200, is not open to the objections that it does not charge accused with murder, or aver that the acts were done with intent to kill.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 192-196.]

4. CRIMINAL LAW-TRIAL-SEPARATE TRIAL OF DEFENDANTS-TIME TO DEMAND SEPARATE

TRIAL.

Comp. Laws, §§ 4325-4327 (Cr. Prac. Act §§ 360-362), provide that where two or more

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