nevada reports 1931-1933 (54 nev.).pdf

7/28/2019 Nevada Reports 1931-1933 (54 Nev.).pdf

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54 Nev. 1, 1 (1931) Lovelock Lands v. Lovelock Land & Development Co.

LOVELOCK LANDS INCORPORATED v. LOVELOCK LAND &DEVELOPMENT CO.

No. 2941

August 1, 1931. 2 P.(2d) 126.

On Motions to Dismiss and Strike

1. Appeal and Error.Statement that bill of exceptions and record on appeal was filed in supreme court without right or

authority, and in violation of the statutes of Nevada in such cases made and provided, and in violation of the

rules of the above-entitled court, heldtoo general to be taken as a ground of motion to dismiss appeal.

2. Appeal and Error.Motion to strike bill of exceptions will not be granted on ground urged in argument but not stated in

motion.

3. Exceptions, Bill ofWords and Phrases.In statute providing that objections to bills of exceptions shall be heard and determined within five

days, word shall is directory as to the specific time designated, and mandatory as to act required to be done

(N. C. L., sec. 9386).

4. Exceptions, Bill of.Trial court did not lose jurisdiction to settle bill of exceptions because it was not settled within five

days after objections thereto were filed (N. C. L., sec. 9386).5. Appeal and Error.

Where original bill of exceptions was served and afterwards amended by adding documents of which

respondent's counsel were authors, bill as so amended and settled would not be stricken because it was not

served.

6. Exceptions, Bill of.Judge settling bill of exceptions is not required to make order for its service as settled (N. C. L., sec.

9386).

7. Appeal and Error.Motion to strike bill of exceptions and record on appeal for failure to serve them before filing in

supreme court denied where there is but a technical deviation from rule and respondent was not prejudiced

thereby (Supreme Court Rule 13, subd. 3).8. Appeal and Error.

Statement that bill of exceptions and record on appeal were filed without right or authority and in

violation of the statutes and supreme court rules heldtoo general to be considered as ground of motion to

strike them.

9. Appeal and Error.Judgment roll is not required to be served upon a respondent on the taking of an appeal.

Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.


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Action by Lovelock Lands Incorporated against Lovelock Land & Development Company.From the judgment plaintiff appeals, and respondent moves to dismiss the appeal, to strike

the transcript of record on appeal, and to strike certain parts thereof, and a counter motion is

filed by appellant. Respondent's motions denied, thus also disposing of appellant's

motion.

Hawkins, Mayotte & Hawkins, for Respondent:

The appeal in this case having been perfected on or before February 6, 1931, and the

transcript of the record on appeal not having been filed until April 22, 1931, under the

statutes, the rules of the above-entitled court (particularly rules 2 and 3), and the decisions of

this court, the motion by the respondent, duly noticed and made to dismiss said appeal,should be granted, and the appeal dismissed. American Sodium Company v. Shelley, 50 Nev.

416; Skaggs v. Bridgman, 39 Nev. 310; Collins v. Goodwin, 32 Nev. 342-345.

The appeal was from the judgment alone, sustaining defendant's motion for judgment on

pleadings, dismissing the action, terminating the option agreement, and awarding defendant

its costs. The error, if any, thus appearing upon the face of the judgment roll, is not required

to be incorporated in a bill of exceptions. Miller v. Walser, 42 Nev. 497, 505. It is, therefore,

submitted that there is and was no function for a bill of exceptions to perform, and no

necessity for a bill of exceptions. Southwest Cattle Loan Company v. Nevada Packing

Company, 53 Nev. 55; Vickers v. Vickers, 45 Nev. 274.

If it be contended that the bill of exceptions was or is necessary in order to transmit to the

appellate court the Notice of Motion for Judgment on Pleadings, served and filed December16, 1930, which contention we deny, said bill of exceptions could not be amended at the time,

to wit, March 14 or March 28, 1931, after the time has expired within which such bill of

exceptions should have been settled so as to bring into it evidence not incorporated therein.

Caldwell v. Wedekind Mines &R


Co., 50 Nev. 366-370. See, also, Water Co. of Tonopah v. Tonopah Belmont Dev. Co., 49Nev. 172; Shirk v. Palmer, 48 Nev. 32.

Cooke & Stoddard, for Appellant:

Respondent's general statement, as ground of motions, that bill of exceptions and record

on appeal were filed in this court without right or authority, in violation of the statutes of

Nevada, and in violation of the rules of the above-entitled court, without any specification

wherein the record was filed in violation of law, etc., is fatally defective. It is elementary law


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that the purpose of a notice of motion is to acquaint the opposite party with the ground, so as

to give him an opportunity to answer it. Quinn v. Quinn, 53 Nev. 67-75, 292 P. 620, 621; Peri

v. Jeffers, 53 Nev. 49, 292 P. 1; Gray v. Coykendall, 53 Nev. 113, 293 P. 436, 437.

We contend that in any view the bill of exceptions was properly served and settled. Under

sec. 9386, N. C. L., when amendments, changes, etc., are made, the court may require the bill

to be engrossed. But here, clearly, the case did not call for any engrossment further than byadding the documents demanded by respondent and consented to by appellant. Under said

sec. 9386 engrossment is necessary only when the court orders it. Here no such order was

ever made. But even if a bill is ordered engrossed, nowhere is it provided or contemplated

that a respondent shall be entitled to new service of the bill as engrossed.

We say there is no law requiring service of bills of exceptions and records on appeal, as

filed in this court, to be made upon the opposite party.

Under no circumstances, and under no proper construction of any statute or rule of court,

is an appellant ever required to serve or deliver a judgment roll, certified, to the opposing

party.

We contend that the clause in sec. 9386, N. C. L.: Such objection shall be heard and

determined by the court within five days thereafter is directory merely. The word shallmeans may when used in an act JUDQWLQJDXWKRULW\WRDFRXUW


granting authority to a court. 35 Cyc. 1452; State v. Board, 27 Nev. 469, 472, 77 P. 984; State

v. Baker, 8 Nev. 141-145; State v. Salge, 1 Nev. 455-460.

OPINION

By the Court, Ducker, J.:

Motions to dismiss the appeal, to strike the transcript of the record on appeal, and to strike

certain parts thereof, were filed by respondent. A counter motion was filed by appellant, and

all were heard together. Our disposition of respondent's motions will necessarily dispose of

the matter.

The case has been tried once before in the lower court, appealed to this court, and the

judgment reversed. 52 Nev. 140, 283 P. 403.

Thereafter the trial court on December 18, 1930, rendered judgment on the pleadings, and

at that time made an order that entry of the judgment be suspended for a period of ten dayswithin which time appellant would be permitted to propose such amendments, or to apply to

the court for such action as it might be advised. Written notice thereof was served on

appellant on December 19, 1930. Respondent filed its cost bill on December 23, 1930. Notice

of motion to strike the same was served on December 24, 1930, and filed two days later. On

December 22, 1930, appellant filed a motion to vacate the judgment. On December 30, 1930,

respondent filed a motion for entry of judgment on the pleadings. This motion and appellant's

motion to strike cost bill and vacate judgment were all heard together by the court on the


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last-mentioned date. Appellant's motions were both denied on that date and judgment entered

that the action be dismissed, and that the option agreement mentioned in the action be

terminated. Upon application of the respondent, the foregoing judgment was entered nunc pro

tunc, as of December 19, 1930. From this judgment appellant filed and served a notice RIDSSHDORQ-DQXDU\DQGILOHGDQXQGHUWDNLQJRQDSSHDODQGIRUVWD\RI

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of appeal on January 30, 1931, and filed an undertaking on appeal and for stay of proceeding

on the following day. Thereafter appellant filed and served a notice of dismissal of the appeal

on February 5, 1931. Later, and on the same day, appellant filed another notice of appeal from

said judgment and another undertaking on appeal and for stay of proceedings. The appeal was

thus finally perfected on February 5, 1931. The transcript on appeal was filed in this court on

April 22, 1931.

1. Respondent contends that the transcript on appeal was filed too late, and in support of

his motion to dismiss invokes rules 2 and 3 of the supreme court rules. This ground for

dismissal of the appeal was argued elaborately both in the written briefs and in the oral

argument by counsel for respondent, but it is not stated specifically in the motion to dismiss.

The reference to it in the motion is as follows: That said Bill of Exceptions and record on

appeal (Vol.1)' was filed in the above entitled court without right or authority, and in

violation of the statutes of Nevada in such cases made and provided, and in violation of the

rules of the above entitled court. This statement is altogether too general to be taken as a

ground of motion. See Perri v. Jeffers, 53 Nev. 49, 292 P. 1; Quinn v. Quinn, 53 Nev. 67-75,

292 P. 620; Gray et al. v. Coykendall, 53 Nev. 113, 293 P. 436, for rulings to that effect. Inthe cases cited we held such general statements fatally defective, and are of the opinion that

the statement in the motion before us is so fatally defective. The courts of other states have

taken the same view. Jackson v. Barrett, 12 Idaho, 465, 86 P. 270-272; Loucks v.

Edmondson, 18 Cal. 203; Cupit v. Park City Bank, 11 Utah, 427, 40 P. 707. The motion to

dismiss the appeal must be denied on this ground. Other grounds for dismissing the appeal

are specified, but, as these are also stated as grounds of a motion to strike the bill of

exceptions and record on appeal, they will be discussed in that connections.

2. In support of the motion to strike the bill of exceptions, counsel for respondent argued

that the motion must be granted, because, as they contend, a bill ofH[FHSWLRQVZDVXQQHFHVVDU\RQDQDSSHDOIURPDMXGJPHQW


exceptions was unnecessary on an appeal from a judgment. This ground was not stated in the

motion to strike, and therefore the motion must be denied for the reasons heretofore given in


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denying the motion to dismiss the appeal.

3, 4. Respondent also moved to strike the bill of exceptions upon the ground that the trial

court lost jurisdiction to settle the same because it was not settled within five days after

respondent filed it objections thereto. It is contended that the trial court so lost the power to

settle the bill by reason of section 3 of act of 1915 concerning bills of exceptions, which reads

in part: Such objection shall be heard and determined by the court within five (5) daysthereafter, and upon such hearing the court shall designate in what respect said bill is

incorrect or untrue, or fails or omits to state the true facts, and shall order and direct that such

bill be corrected in accordance with said determination, and engrossed so as to contain the

true facts as herein required, and when so engrossed said bill shall be allowed and settled as

in this act provided, and when so settled shall become and be a part of the record of said

action. If the objections of the adverse party are disallowed, then such bill as originally filed

shall be immediately settled and allowed as by this act required. Section 9386, Nev. Comp.

Laws.

Respondent points out that it filed and served its notice of objection to allowance and

settlement of the bill of exceptions on February 6, 1931, and that no action whatever was

taken and no time requested or granted for an extension of time within which said proposedbill of exceptions should be settled until March 14, 1931, at which time the respondent

objected to the authority or jurisdiction of the district court to settle or allow the same; that

further hearing of appellant's application for a settlement of bill of exceptions was continued

to March 28, 1931, at which time, in open court, respondent again objected to the right or

jurisdiction of said district court to settle any bill of exceptions in said action.


We think that the word shall in the statute was used by the legislature in both a directory

and mandatory sensedirectory as to the specific time designated, and mandatory as to the

act required to be done.

In the case of State ex rel. Gray v. District Court, 51 Nev. 412, 278 p. 363, where the trial

court refused to settle a bill of exceptions, mandamus was issued to compel such settlement.

In the more recent case of Ratliff v. Sadlier, 53 Nev. 292, 299 P. 674, 675, we held the

following provision of a statute to be directory merely: Upon a trial of a question of fact by

the court its decision must be given * * * within thirty days after the cause is submitted for

decision. The ruling in the latter case is decisive of the question presented here, as there is

no difference in principle.5, 6. Respondent also moved to strike the bill of exceptions because the same was not

served upon it. The following indorsement is on the bill of exceptions appearing in the

record: Service of the within bill of exceptions and record on appeal admitted this 2nd day of

February, 1931. Hawkins, Mayotte & Hawkins, attorneys for Defendant. It is ture that after

the 2d day of February, 1931, and before the bill of exceptions was settled and allowed by the

district judge on April 13, 1931, it was amended by the addition of certain papers and the bill

as amended and settled was not served on respondent. The additions consist of: respondent's


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notice of motion for judgment on the pleadings; and order shortening time for hearing of

same and acknowledgment of service of such notice by attorneys for appellant; copies of

affidavits of service of notice of decision, of service of decision and order, of service of

notice to have judgment dismissing the action and terminating option agreement, for costs,

and order shortening time for notice and hearing. It will be seen that respondent's counsel

were the authors of these documents added to the bill of exceptions, and therefore had perfectknowledge of the same. Moreover, it appears from the certificate of settlement and allowance

by WKHMXGJHWKDWUHVSRQGHQWGHPDQGHGWKHLQFRUSRUDWLRQRIVDLGDIILGDYLWVRIVHUYLFHRI

QRWLFHRIGHFLVLRQDQGRUGHU


the judge that respondent demanded the incorporation of said affidavits of service of notice of

decision and order. Their incorporation was consented to by counsel for appellant. Undersuch circumstances it is difficult to see how respondent was prejudiced by the failure to serve

the bill of exceptions as settled. The judge settling the bill of exceptions made no order for its

service as settled and was under no duty to do so. The statute does not require it.

7. A motion was made to strike the bill of exceptions and record on appeal (which,

together with the last notice of appeal and undertaking on appeal, constitute the transcript on

appeal in this case), for failure to serve it before filing in this court. This motion will be

denied for the reasons we have just given for not striking the bill of exceptions. It is true that,

by subdivision 3 of rule 13 of the rules of the supreme court, service of a copy of the

transcript of the record on appeal is required to be made upon the opposite party. But the most

we would do if this rule were not substantially observed would be to order compliance

therewith before applying any other remedy. But where, as in this case, there is but a technicaldeviation from the rule, such as not serving respondent with copies of the papers heretofore

mentioned, of which respondent had full knowledge, no useful purpose would be served in

ordering such service.

8, 9. The last motion is also based upon the following statement, to wit: That said bill of

exceptions and record on appeal was filed in the above entitled court without right or

authority, and in violation of the statutes of Nevada in such cases made and provided, and in

violation of the rules of the above entitled court. The motion will be denied in this respect

because the statement is too general to be considered as a ground of motion. The last motion

is also based upon the ground that no judgment roll certified by any one authorized by the

statute or court rules to certify judgment roll was ever at any time served upon respondent orthe attorneys for respondent herein.


The judgment roll is not required to be served upon a respondent on the taking of an appeal.


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The motion to strike a portion of the certified copies of the judgment roll is directed

against what is named in the record as a copy of the original first judgment roll, and against

all of the papers contained therein. The clerk certified to a copy of the judgment roll in the

case as originally tried in the lower court, and to a copy of the judgment roll as judgment was

rendered and entered on the pleadings. After the reversal of the judgment in this court,

respondent, who was appellant in the first instance, filed an amended and supplementalanswer to the second amended complaint as finally amended, to which latter pleading a reply

was filed, and, as heretofore stated, judgment was thereafter rendered and entered on the

pleadings. It will be seen that there may be papers in the first certified judgment roll that are

not essential to a proper consideration of the questions that may arise on this appeal, but as

counsel for respondent have not much insisted on this latter motion, either in their briefs or

oral argument, and as no useful purpose will be served thereby, we will not attempt to

determine in advance which papers, if any, are not essential, and strike them.

It is ordered that all motions made by respondent be, and they are hereby, denied on all the

grounds state.

On The Merits

February 5, 1932. 7 P.(2d) 593.

1. Pleading.

Upon motion for judgment on pleadings nothing dehors the complaint or any

defense there to set up in the answer can be taken into account.

2. Pleading.

In action for specific performance of land sale contract, judgment for defendant on

pleadings heldimproper.

Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.

Action by Lovelock Lands Incorporated against Lovelock Land & Development Company.

Judgment for defendant, and plaintiff appeals. Reversed.


Cooke & StoddardandBooth B. Goodman, for Appellant:

In sustaining and granting defendant's motion for judgment on the pleadings, the court

erred in taking and considering facts or alleged facts dehors the pleadings. Edwards v. Jones,

49 Nev. 342; Southwest Cattle Loan Co. v. Nevada Packing Co., 53 Nev. 55; Hibernia

Savings, etc. Society v. Thornton (Cal.), 49 P. 573; Way v. Shaver (Cal.), 84 P. 283; 21 Cal.

Jur. 240, sec. 166 and n. 7.

Hawkins, Mayotte & Hawkins, for Respondent:


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Appellant does not seem to question that a motion for judgment on pleadings is a proper

procedure in a proper case. That such is the holding of the courts, we cite the following: 21

Cal. Jur. p. 234, sec. 163; Hudenthal v. Spokane & I. Ry. Co. (Wash.), 86 P. 955, 958;

Vickers v. Vickers, 45 Nev. 274, 288; Southwest Cattle Loan Co. v. Nevada Packing Co., 53

Nev. 55; 21 R. C. L. p. 594, sec. 142; 49 C. J. 668, sec. 945.It having been demonstrated to the trial court that plaintiff below had not performed the

conditions precedent, as required in the option; and it appearing from the second amended

complaint as amended, and the reply, that plaintiff was not entitled to maintain its action for

specific performance; and it appearing from the amended and supplemental answer to the

second amended complaint as amended that plaintiff had violated the terms and conditions of

said option, among such violations being the mortgaging of the property and the failure to pay

taxes; and it appearing that Notice of Termination of Agreements as Corrected and

Amended had been duly served; and that plaintiff had failed and refused to comply with the

requirements of said option agreement within the time authorized therebythe action was

dismissed, the option terminated, and defendant awarded its costs.


OPINION

By the Court, Sanders, J.:

This was an action in specific performance. Upon a former appeal in the action (52 Nev.

140, 283 P. 403), the judgment in favor of the plaintiff on the merits was reversed, and the

cause was remanded for new trial upon two grounds: (1) That the trial court erred in

permitting testimony concerning transactions with persons since deceased who representedthe defendant corporation; (2) that a denial of a new trial without hearing or consideration of

the motion on its merits by the judge succeeding the judge who rendered judgment and

reassigned the case to him, was error.

Upon the filing of this court's remittitur in the court below, the defendant, with leave of

court, filed an amended and supplemental answer to the plaintiff's second amended

complaint, as finally amended, to which the plaintiff filed a reply, and the cause was set for

trial. On the day of the trial, before any evidence was offered, the defendant orally moved for

judgment on the pleadings. Upon objection, notice of motion and motion was reduced to

writing and served upon the plaintiff. The plaintiff was notified that the defendant would

move for judgment on the pleadings upon three grounds: (1) That the plaintiff's pleadings didnot state facts sufficient to constitute a cause of action; (2) that plaintiff's pleadings did not

state facts sufficient to entitle plaintiff to specific performance of the contract made the

subject of the complaint; (3) that plaintiff's pleadings demonstrate that the defendant is

entitled to judgment of dismissal of the action and for judgment terminating the contract

counted on in the pleadings.

The court granted the motion and entered judgment upon the pleadings. The judgment is

unusual in form, in that it contains a recital of each step taken in the proceedings on the


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motion, from which it was adjudged, ordered, and decreed as follows:

That defendant's motion for entry of such judgment EHDQGWKHVDPHLVKHUHE\VXVWDLQHGDQGJUDQWHGWKDWWKHDERYHHQWLWOHGDFWLRQEHDQGWKHVDPHLVKHUHE\GLVPLVVHGWKDWVDLGRSWLRQDJUHHPHQWRIGDWH2FWREHUH[KLELW$WRVDLG6HFRQG$PHQGHG&RPSODLQWDV$PHQGHGDVDOWHUHGDQGFKDQJHGE\WKHVDLGDJUHHPHQWRIGDWH-XO\H[KLELW&WRVDLG6HFRQG$PHQGHG&RPSODLQWDV$PHQGHGEHDQGVDLG

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be, and the same is hereby, sustained and granted; that the above entitled action be, and the

same is hereby, dismissed; that said option agreement, of date October 20, 1917, exhibit A to

said Second Amended Complaint, as Amended,' as altered and changed by the said

agreement of date July 1, 1918, exhibit C to said Second Amended Complaint, as Amended,'be and said option agreement is hereby, terminated; that the defendant do have and recover of

the plaintiff its costs herein taxed, in the sum of $63.55.

That, upon application of defendant, and good cause appearing therefor, it is further

ordered: That the foregoing judgment be entered nunc pro tunc, as of December 18, 1930.

From this judgment the plaintiff has appealed.

1. We decline to follow the strategic arguments of learned and experienced counsel with

respect to the regularity and validity of the proceedings had in the court below upon the

motion for judgment on the pleadings. Upon the argument of this case, the Chief Justice

suggested to counsel that for the purposes of a motion for judgment on the pleadings this

court would consider only the pleadings. The settled rule is that upon a motion for judgment

on the pleadings nothing dehors the complaint nor any defense thereto set up in the answercan be taken into account in disposing of such motion, but the motion is to be determined

upon the same principles as would be a demurrer to the complaint upon the same ground. All

the facts alleged are admitted for the purposes of the motion, and the court is to determine

whether these facts constitute a cause of action. If the necessary facts are contained in the

complaint, the objection that they are defectively set forth, or are in an ambiguous or

uncertain form, will be unavailing. There must be an entire absence of some fact or facts

essential to constituting a cause of action. Elmore v. Tingley, 78 Cal. App. 460, 248 P. 706;

Hibernia S. & L. Soc. v. Thornton, 117 Cal. 481, 49 P. 573. Since the movant's motion

admits the truth of all well-pleaded facts in the complaint, together ZLWKDOOIDLULQIHUHQFHVWR

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with all fair inferences to be drawn therefrom, and since, for the purposes of a motion of this


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character, the pleadings must be liberally construed, this court, after searching the complaint

as on demurrer, is of opinion that the order and judgment under review must be reversed.

A summary of the material allegations of the complaint with its exhibits A, B, and C

makes a voluminous document, subject to the criticism that it is not a concise statement of the

facts, and is inartificially drawn with respect to the allegations of the performance of the

covenants and conditions of the contract made the subject of the complaint. The complaint isdivided into three causes of action, each predicated upon and arising out of a contract dated

on October 20, 1917, exhibit A, as changed and amended on July 1, 1918, exhibit C. The

complaint alleges that on October 20, 1917, the defendant made, executed, and delivered to

one C. M. Wooster a certain option contract to purchase certain lands, water rights, and

personal property situated in Pershing County, Nevada, a copy of which is attached to the

complaint and marked exhibit A. The complaint alleges that on June 21, 1922, Wooster, for a

valuable consideration, assigned and set over to the plaintiff exhibit A, and that plaintiff is

now, and since which date has been, the owner of said contract as assignee of Wooster, and is

the real party in interest in this action. Exhibit A shows that the defendant agreed to sell to

Wooster the property mentioned for the payment of the consideration fixed therein at

$202,003.25, $22,003.25 of which sum was paid by Wooster in cash, and the balance to bepaid upon specified dates, with interest. The complaint alleges that under the provisions

contained in said contract Wooster sold certain parts or parcels of the land described therein

to one J. B. Daniel. The complaint in this connection alleges that, under express oral

agreement made by Wooster with the defendant, Daniel gave to the defendant, for the mutual

benefit of plaintiff and defendant, a mortgage on the property sold him to secure the payment

of seven promissory purchase money notes for $9,180 each, with interest. The complaint

alleges WKDWXQGHUWKHFRQWUDFWH[KLELW$WKHPRQH\VFROOHFWHGRQWKH'DQLHOQRWHVZHUHE\WKHGHIHQGDQWWREHDSSOLHGDVSD\PHQWVRQWKHGHIHQGDQWVLQGHEWHGQHVVWRWKH+XPEROGW/RYHORFN,UULJDWLRQ/LJKWDQG3RZHU&RPSDQ\IRUVKDUHVRIFODVV

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that under the contract, exhibit A, the moneys collected on the Daniel notes were, by the

defendant, to be applied as payments on the defendant's indebtedness to the Humboldt

Lovelock Irrigation Light and Power Company, for 16,589 1/5 shares of class B stock of

said company. The complaint alleges said stock to be of special value which cannot be

obtained in the open market. The complaint alleges that it was verbally agreed and understood

that, after the defendant had collected three of the Daniel notes, all of the notes remaining due

and unpaid were to be credited upon the purchase price of the property described in exhibit A;

that the defendant credited all sums paid, and credited the face value of the Daniel notes

remaining unpaid on the purchase price of the property, as orally agreed, but that defendant

failed in making such credits to credit plaintiff with the sum of $6,609.60, interest collected

on the Daniel note of November 1, 1920; that otherwise said contract, exhibit A, as changed

and amended, exhibit C, was in all respects fully executed by both parties.


11/342

As a second cause of action, the complaint alleges, in substance, that at the time of the

execution and delivery of exhibit A, and as a consideration for the execution thereof, the

defendant orally agreed with C. M. Wooster that Wooster would use his best efforts to find

purchasers for the land and property described in exhibit A and to complete the payment of

the purchase price, and as compensation therefor, it was agreed that the defendant should pay

Wooster as compensation for services so rendered, immediately upon completion of thepayments of the full purchase price, the sum of $15,000, that Wooster had fully performed

said services, and that the same, as rendered, were of the reasonable value of $15,000. The

complaint alleges that, prior to suit, Wooster, for a valuable consideration, sold and assigned

the said debt and claim for services to plaintiff, and that the plaintiff is the owner thereof and

the real party in interest. The complaint, as finally amended, shows that on October 20, 1917,

the defendant, by its secretary, F. M. Lee, delivered to Wooster DZULWWHQDJUHHPHQWLQWKHIRUPRIDOHWWHUGLUHFWHGWRVDLG:RRVWHUZKHUHE\WKHGHIHQGDQWDJUHHGWRSD\:RRVWHUDVDFRPPLVVLRQRQDFFRXQWRIVHUYLFHVUHQGHUHGLQUHIHUHQFHWRWKHVDOHRIWKHSURSHUW\GHVFULEHGLQH[KLELW$VDLGVXPWREHSDLGZKHQVDLGFRQWUDFWKDGEHHQIXOO\

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a written agreement in the form of a letter directed to said Wooster, whereby the defendant

agreed to pay Wooster $15,000 as a commission on account of services rendered in reference

to the sale of the property described in exhibit A, said sum to be paid when said contract had

been fully completed and performed by Wooster, and not otherwise or at all. The complaint

alleges that, prior to suit, demand was made upon the defendant to credit the contract of

purchase and sale of the property with $6,609.60 (Daniel note), and with $15,000, evidencedby the Lee letter, hereinabove referred to. In the amendment to the second amended complaint

it is alleged, in substance, that the plaintiff is, and at all times had been, willing and able to

perform any and all obligations arising out of said contracts, and hereby and herewith pays

into court the sum of $13,477.29, being a sum equal to the difference between the actual cash

payments received by defendant and the total amount of the balance for principle and interest

owing on April 2, 1923, plus interest at 6 per cent on $12,849.83; that said sum was paid into

court to abide the decree settling all the rights of the parties arising out of said contracts,

exhibits A and C. The prayer of the complaint is for a conveyance of the property from the

defendant to the plaintiff, and that all rights of the parties arising out of the contracts and

matters alleged in the complaint be determined, and that any sum or sums found to be due

plaintiff be declared a lien upon and satisfied out of the money paid into court, and plaintiffbe given judgment for any deficiency unsatisfied.

The learned trial judge, in passing upon the movant's motion for judgment on the

pleadings, took the position that the item of $15,000 alleged in the complaint as commissions

under the F. M. Lee letter, and the $6,609.60 item of interest on the Daniel note, should not

be allowed as credits on the purchase price of the property made the subject of the pleadings,

and therefore on the pleadings technically counsels' motion was good. Whether WKHLWHPVFODLPHGZHUHDOORZDEOHDVFUHGLWVRQWKHSXUFKDVHSULFHRIWKHSURSHUW\ZHUHPDWHULDO


12/342

LVVXHVWHQGHUHGLQWKHFRPSODLQW


the items claimed were allowable as credits on the purchase price of the property were

material issues tendered in the complaint. It is well settled that, where a material issue is

tendered by the pleadings, judgment on the pleadings is improper. Parks v. W. U. T. Co., 45

Nev. 411, 197 P. 580, 204 P. 884; 49 C. J. 670. In view of the allegations of the complaint

relative to the two claimed credits, for the purpose of the movant's motion judgment could not

be rendered on the pleadings. This court in one case has had occasion to hold that a motion

for judgment on the pleadings raises a question of law only, and should be sustained, when,

under the admitted facts of a pleading, the moving party would be entitled to a judgment on

the merits. Edward v. Jones, 49 Nev. 342, 246 P. 688. Clearly no such case is presented by

the bill or complaint under review as would entitle the defendant to judgment on the merits.The trial court, in rendering final judgment, dismissing the action and terminating the

contracts made the subject of the pleadings, apparently entered judgment on the theory that its

separate and affirmative defense, pleaded by way of counterclaim, set forth matter which the

court concluded entitled the defendant to the judgment rendered. No judgment could be

rendered for defendant where his defense, as here, is put at issue. 49 C. J. 672. It is a

well-settled rule that, if material allegations are denied in the answer, a motion for judgment

on the pleadings should not be granted. Manchester M. A. State Bank v. Smith, 90 Cal. App.

506, 265 P. 981. The material issues of fact presented by the complaint made it erroneous to

grant the defendant's motion for judgment on the pleadings.

Contention is made that the verbal agreement made in connection with the contracts in

respect to the Daniel note transaction brings the case within our statute of frauds. Thiscontention is untenable.

2. The authorities hold that, when a court of equity has once obtained jurisdiction in a suit

for specific performance, it will, in accordance with the settled rules of equity jurisprudence,

do complete justice by deciding the HQWLUHFDVHDQGGHWHUPLQLQJWKHZKROHFRQWURYHUV\DVEHWZHHQWKHSHUVRQVLQWHUHVWHGZKRKDYHEHHQPDGHSDUWLHVWRWKHDFWLRQ


entire case and determining the whole controversy, as between the persons interested whohave been made parties to the action. 23 Cal. Jur. sec. 65, p. 509. Hence, in such cases, courts

are frequently called upon to enter alternative decree under the doctrine of conditional

specific performance. In such cases decrees in equity are molded in such a way as to give full

protection as to the rights of the parties as set forth in the pleadings. Consequently, should it

be determined, upon the trial of the issues tendered by this complaint, that the plaintiff had

not kept and performed the conditions precedent in respect to payments of the purchase price,

a decree under the pleadings in favor of the plaintiff might be conditioned on his performance


13/342

of the covenants, of which performance on his part is due, or will be due on performance by

the defendant. 6 Page on the Law of Contracts, sec. 3368.

Without intimating any opinion on the merits of the issues tendered by the pleadings, we

conclude that the order sustaining the defendants motion for judgment thereon and the

judgment should be reversed, with costs, and that plaintiff should have and recover all costs

incurred by it at the session of the court in which the order for judgment on the pleadings wasentered, and that the remittitur of this court reversing the order and judgment should issue

forthwith.

It is so ordered.

Ducker, J. :

I concur in the order of reversal and that the remittitur issue forthwith.

Coleman, C.J.:

I concur in the order. This case was tried several years ago, and a judgment was rendered

in favor of the plaintiff, which was reversed because of errors of law. The case was remanded

and set for trial on the merits. On the day of trial, the defendant, for the first time, made amotion for judgment on the pleadings, which was granted; but in granting the motion the

court ZDVLQIOXHQFHGHQWLUHO\E\PDWWHUVGHKRUVWKHSOHDGLQJV


was influenced entirely by matters dehors the pleadings. From the judgment thus rendered,

the plaintiff took an appeal. Upon the argument in this court, the defendant not only insists

upon the contention put forth in the lower court, but urges for the first time that the complaintdoes not state a cause of action because of certain allegations relative to the Daniel notes.

I concur in the order of reversal, for the reason that the lower court in granting the motion

took into consideration matters dehors the pleadings, something it had no right to do on a

motion of the character mentioned.

As to the Daniel matter, the complaint alleges that, pursuant to an oral modification of the

original agreement, the defendant accepted certain notes for collection and agreed to credit

the amounts collected upon the indebtedness. This constituted an executed contract. It is now

too late to urge that there could be no oral modification of the original written contract.

I think the case should be remanded for trial upon the merits according to the principles of

equity governing such matters.

On Costs

June 17, 1932.

1. Costs.

All items of costs may be included in cost bill after petition for rehearing is denied.


14/342

2. Costs.

Respondent's failure to move to strike, prior to decision on merits, parts of record

contended unnecessary to determination of appeal precluded raising of point on appeal

from ruling of clerk on cost bill.

Appeal from ruling of clerk in taxation of costs. Ruling sustained.

OPINION

By the Court, Sanders, J.:

The appellant filed a cost bill in this case containing a number of items. Respondent filed

objections to several of the items, on the ground that they are excessive 7KHFOHUNUXOHGXSRQWKHREMHFWLRQVDQGUHGXFHGVRPHRIWKHLWHPVIURPZKLFKUXOLQJWKHUHVSRQGHQWKDV

DSSHDOHG


The clerk ruled upon the objections and reduced some of the items, from which ruling the

respondent has appealed.

1. The objection to the item of costs for typing in the matter of respondent's motion to

dismiss the appeal for the reason that no cost bill therefor was filed within five days from

notice of decision thereon is without merit. All items of costs may be included in cost bill

after petition for rehearing is denied. Siebert v. Smith, 49 Nev. 312, 246 P. 1.

2. We agree with the ruling of the clerk on the contention that certain parts of the record

were not necessary to the determination of the case, in holding that if such were the case,

respondent's failure to move to strike prior to a decision on the merits precludes the raising ofthe point at this time and in this manner.

As to the calculations made by the clerk and the ruling based thereon, we are of the

opinion that they should be sustained.

It is so ordered.

____________

54 Nev. 20, 20 (1931) Elsman v. Elsman

ELSMAN v. ELSMAN

No. 2951

September 3, 1931. 2 P.(2d) 139.


15/342

On Motion to Dismiss Appeals

1. Judgment.Judgment or decree is the final determination of rights of parties, whereas an order generally is

a direction of the court preliminary and incidental to such final determination (sec. 8909, N. C. L.).

2. Divorce.Determination of application to modify amended divorce decree relative to custody of child heldnot a

special order made after final judgment (sec. 8909, N. C. L.).

3. Divorce.Amendment of divorce decree relative to custody of child, having supplanted original decree in that

respect, was a final judgment, subject to further modification or amendment (sec. 8909, N. C. L.).

4. Appeal and Error.Determination denying divorce defendant's motion for sole custody of child, but modifying amended

decree as to her right of visitation, being a final judgment or decree, defendant heldentitled to move for new

trial and appeal from order denying same within sixty days from entry of order in minutes.

Appeal from Second Judicial District Court, Washoe County; Geo. A. BartlettandL. O.

Hawkins, Judges.

Divorce action by Ralph Elsman against Beatrice J. Elsman, where in defendant was

granted a divorce and plaintiff awarded custody of the parties' minor child, subject to certain

rights of visitation by defendant. From a refusal of defendant's motion to amend the decree, as

amended, so as to give defendant sole possession and custody of such child, and from an

order denying defendant's motion for new trial of such motion, defendant appeals. On motion

to dismiss the appeals. Motion denied.

Thatcher & Woodburn and Forman&Forman, for Respondent:

The order of December 3, 1930, and made and entered in the minutes of the court of that

date, denying appellant's motion for an order modifying the decree of divorce theretofore

made on January 4, 1927, was a special order PDGHDIWHUMXGJPHQWDQGXQGHUVHFWLRQ1&/DQGDQDSSHDOZDVUHTXLUHGWREHWDNHQZLWKLQVL[W\GD\VDIWHUVXFKRUGHUZDV

PDGHDQGHQWHUHGLQWKHPQLQXWHVRIWKHFRXUW


made after judgment and under section 8885, N. C. L., and an appeal was required to be

taken within sixty days after such order was made and entered in the mninutes of the court.

As the appeal was not taken within the time provided by statute this court has no jurisdiction

to entertain the appeal from the order of December 3, 1930, and the motion to dismiss must

be sustained as to the appeals from that order. Paroni v. Simonsen, 34 Nev. 26; Clark v.

Turner, 42 Nev. 450; Kingsberry v. Copren, 47 Nev. 466.

We know of no authority in the laws of the State of Nevada which authorizes or sanctions a


16/342

motion for new trial of an order based upon and made in pursuance of a notice of motion, as

was attempted in the case at bar. Nor do we know of any authority elsewhere for such a

proceeding. Bancroft's Code Practice and Remedies, vol. 7, sec. 5908, p. 7821; Rule XI of

District Court, subd. 4, vol. 4, N. C. L., p. 2477; secs. 8753, 8875, N. C. L.; Harper v.

Hildreth, 99 Cal. 265, 33 P. 1103; Doyle v Republic Life Ins. Co., 125 Cal. 9, 57 P. 667; Gray

v. Cotton, 174 Cal. 256, 162 p. 1019.The motion for new trial of the appellant being an unauthorized proceeding under our

statutes, it becomes unnecessary for the court to determine whether the order of December 23,

1930, denying appellant's motion for a new trial, was made and entered in the minutes of the

court on that date or, as stated in appellant's notice of appeal, on or about December 31,

1930.

There being only one appealable order, viz, that of December 3, 1930, and the appeal from

this order not having been taken until February 26, 1931, a period of eighty-five days after the

order was made and entered in the minutes of the court, twenty-five days after the time

allowed by law in which to appeal therefrom, this court has no jurisdiction to entertain the

appeals.

Samuel Plattand Cooke & Stoddard, for Appellant:

The order made on December 3, 1930, was and is a judgment. The defendant's custody

motion was a SURFHHGLQJDQGWKHRUGHURI'HFHPEHUZDVDILQDOGHWHUPLQDWLRQRIWKHULJKWVRIWKHSDUWLHVLQWKDWSURFHHGLQJ


proceeding, and the order of December 3, 1930, was a final determination of the rights ofthe parties in that proceeding. Sec. 8794, N. C. L.; Perkins v. Sierra Nevada S. M. Co., 10

Nev. 411; 33 C. J. 1051, n. c.; 3 C. J. 442, sec. 258, n. 53.

Conceding, for the purposes of the argument, that defendant's proceeding was a mere

motion and that the court's decision thereon was a mere order, we contend that by common

consent, express as well as tacit, of the plaintiff as well as of the trial court, there was by

defendant's motion for new trial proceeding a renewal and rehearing on defendant's said

motion for custody, and hence it was the making and entry of the decision dated December

23, 1930, denying defendant's motion for a new trial, that, when entered, started defendant's

time to appeal to run, and not the making and entry of the decision dated December 3, 1930.

District Court Rule XI, subd. 4; 42 C. J. 516 and n. 22; Sec. 8875, N. C. L.; Vickers v.Vickers, 45 Nev. 288; Edwards v. Jones, 49 Nev. 342.

Records written up by the clerk of the court, orders, proceedings, etc., do not constitute

minutes of the court nor can such proceeding be deemed entered in the minutes until such

minutes have been read, approved and signed by the judge. Rule IV of District Court. Hence,

whether the instant appeals be considered as having been taken from an order denying a new

trial or from a special order made after final judgment, it is the time of entry of such order in

the minutes of the court that starts the sixty days' time to appeal running. Sec. 8885, N. C. L.;


17/342

15 C. J. 976 and n. 22; Whitcomb v. State (Tex.), 190 S. W. 484; Wilder v. Bush (Ala.), 75

So. 143; Johnson v. Johnson (Tex.), 2 Heisk. 521; Cloughton v. Black, 24 Miss. 185; In Re

Pearsons' Estate (Cal.), 50 P. 929.

OPINION

By the Court, Coleman, C. J.:

Respondent has moved to dismiss the appeals in the above-entitled cause.


In January, 1927, the lower court granted a divorce to Beatrice J. Elsman from Ralph

Elsman, and awarded to him the custody of their minor child, Ralph Elsman, Jr., subject to

certain rights of visitation by the mother. In May, 1928, the court modified the original decreerelative to the custody of the minor child. On November 4, 1929, Ralph Elsman filed in said

court and cause a motion to again amend the said decree relative to the custody of said child,

and thereafter the said Beatrice J. Elsman filed her objections to the modification as sought by

Ralph Elsman, and applied for a modification thereof so as to give her the sole possession and

custody or said child.

After numerous continuances, hearings, and a prohibition proceeding in this court (State

Ex Rel. Elsman v. District Court, 52 Nev. 379, 287 P. 957), the lower court on December 3,

1930, filed its written opinion and decision wherein it incorporated the following:

It is the order of this court that the petitions or motions of both plaintiff and defendant for

the modification of the decree of this Court entered herein January 4, 1927, relative to the

custody of Ralph Elsman, Jr., as modified May 2nd, 1928, be, and each of said motions orpetitions for modification is denied.

And it is ordered that the said order of modification of May 2nd, 1928, be and the same is

affirmed and continued in force as therein provided, save and except that instead of the

defendant, Beatrice Elsman, being entitled to one month's visitation of an hour a day on

notice by her to plaintiff of any one month in each year desired by her, it is the order of this

Court that said right of visitation be, and the same is fixed for the month of July of each year,

at which time defendant shall have the right to visit the minor child, Ralph Elsman, Jr., for

one hour each day at either of the homes of said minor's father in Washoe County, Nevada, at

the Franktown residence or the Reno residence.

Thereafter, and on December 10, 1930, counsel for the defendant served and filed amotion for a new trial. Counsel for plaintiff also filed a motion for a new trial.


Both motions came on for hearing on December 23, 1930, at which time counsel for plaintiff


18/342

withdrew his motion for a new trial, and thereafter, on December 23, 1930, argument was

heard upon defendant's motion. After argument the court entered an order denying defendant's

motion.

On the 23d of December, 1930, the court, on motion of counsel for plaintiff, ordered that

an order, nunc pro tunc, as of December 3, 1930, in terms identical to those incorporated in

the decision of December 3, 1930, be entered.On February 26, 1931, the defendant served and filed her notice of appeal from a

judgment rendered in favor of the plaintiff and against the defendant in the above-entitled

action and court on December 3, 1930, and also from that certain order made by the

above-entitled court in the above-entitled cause on December 23, 1930, denying defendant's

motion and application for a new trial of said cause, said order being entered in the minutes

of the court on or about December 31, 1930.

Thereafter, on May 4, 1931, the defendant served and filed her notice of appeal from an

order Made December 3, 1930 in the above-entitled Court and cause in favor of plaintiff and

against the defendant, denying defendant's application for an award that defendant be granted

custody of Ralph Elsman, Jr., a minor child of plaintiff and defendant, the Minute record of

which said order denying defendant's said application, was not approved and signed by thetrial judge, to-wit: Hon. Geo. A. Bartlett, prior to March 10, 1931; and also, from that certain

order made by the above-entitled Court in the above-entitled cause on December 23, 1930

denying defendant's Motion and application for a new trial of said cause, said order being

written up by the Clerk in the Minute Book of said Court on or about December 31, 1930 and

which said record was not approved and signed by the said Judge Geo. A. Bartlett prior to

March 10, 1931.

Counsel for respondent on June 22, 1931, served and filed notice to dismiss the two

appeals taken by appellant, for lack of jurisdiction of this court to entertain WKHVDPHIRU

ZKLFKWKHIROORZLQJUHDVRQVDUHDVVLJQHG


the same, for which the following reasons are assigned:

First: The proceedings sought to be appealed from and called in appellant's first Notice of

Appeal, dated February 26, 1931, a judgment rendered in favor of plaintiff and against the

defendant in the above-entitled action on December 3, 1930,' is not and was not a Judgment,

but was and is an Order of the Court, denying defendant's Motion for an Order modifying,

changing, and amending certain parts of the Decree of divorce heretofore made and entered insaid action on the 4th day of January, 1927, and that no appeal was taken from said Order of

December 3, 1930, within sixty days from the time said Order was made and entered in the

Minutes of the Court;

Second: That the appeal from the Order of the Court in said cause on December 23, 1930,

denying defendant's Motion and Application for a new trial, was not taken within sixty days

from the time said Order was made and entered in the Minutes of the Court;

Third: That there is no authority under the laws of the State of Nevada, for the new trial


19/342

of a Motion, and that no appeal lies from an order denying such motion for new trial;

Forth: That the court has no jurisdiction to entertain defendant's attempted appeal under

her Notice of Appeal dated May 4, 1931. That said appeal was not taken within sixty days

from the time the Order of December 3, 1930 was made and entered in the Minutes of the

Court, denying defendant's application for an award that defendant be granted custody of

Ralph Elsman, Jr., a minor child of plaintiff and defendant.That there is no authority under the laws of the State of Nevada, for the new trial of a

motion and that no appeal lies from an Order denying such motion for new trial.

That such attempted appeal from said Order denying defendant's motion for new trial was

not taken within sixty days after said Order denying said motion for a new trial was made and

entered in the Minutes of the Court.


Counsel for respondent have stated the points involved on this motion as follows:First: Whether the appeal is taken from a final judgment in an action or special

proceeding, or whether it is an appeal from a special order made after final judgment entered

in the minutes of the court.

Second: Whether or not an appeal lies from an order overruling a motion for new trial of

a motion.

On May 5, 1928, the court, on application of the plaintiff, ordered, adjudged and decreed

that the original decree be amended, modified and changed. It further reserved the right to

again alter the decree, judgment or order, or whatever it may be, whenever the best interest of

the child so demands.

The determination of the motion to dismiss turns upon whether or not the order, decree, or

judgment of December 3, 1930, was an order or a judgment. If it were a judgment, the motionto dismiss must be denied.

Counsel for respondent contend that it is an order, and in support of their contention they

rely strongly upon section 420 of our civil practice act, section 8909, Nev. Comp. Laws 1929,

which reads: Every direction of a court or judge made or entered in writing, and not included

in a judgment, is denominated an order. An application for an order is a motion.

The section quoted is no aid in determining the point, for the reason that it excepts an

order included in a judgment.

Under the old practice, when actions at law and suits in equity were separate and distinct,

the final determination of action at law was called a judgment, while in suits in equity it was

designated a decree. Divorce suits were equitable in character, hence they were known asdecrees. Under the code of civil procedure the words action, suit, and judgment are

often used without any regard to their old meaning. Even in our divorce act we do not find the

words judgment or decree used, but do find the words order and ordered (see

sections 9462, 9463, 9464, 9465 and 9466, Nev. Comp. Laws 1929), which indicates to ourPLQGVWKDWWKHOHJLVODWXUHZDVQRWVRPXFKLQWHUHVWHGLQWKHZRUGRUZRUGVXVHGWRLQGLFDWHLWVLQWHQWLRQDVWRWKHILQDOGHWHUPLQDWLRQRIWKHPDWWHUVLQYROYHGDVLWZDVWR

GLUHFWZKDWPLJKWRUVKRXOGEHGRQH


20/342


minds that the legislature was not so much interested in the word or words used to indicate itsintention as to the final determination of the matters involved, as it was to direct what might

or should be done.

1, 2. It is our impression that a judgment or decree, as the case may be, as distinguished

from an order, is the final determination of the rights of the parties, whereas an order

generally is a direction of the court preliminary and incidental to such final determination.

There may be, or course, certain orders after final judgment, such as an order denying a

motion for a new trial and a special order made after final judgment. The latter, however, is

one which relates to the final judgment, either by way of enforcing or staying its operation.

Kaltschmidt v. Weber, 136 Cal. 675, 69 P. 497; Watson v. Prior, 49 Cal. App. 554, 193 P.

797.The determination of December 3, 1930, did not pertain to enforcing or staying the

operation of a judgment or decree, hence we think it is not a special order made after final

judgment.

3. The original decree in this cause was a final determination. The amendment of May 3,

1928, was, when entered, of equal dignity to the decree of 1927, when it was entered, and

entirely supplanted the decree of 1927, as to the custody of the child. No other view can, in

reason, be maintained. This being true, we think no other sound conclusion can be reached

but that the determination of December 3, 1930, was a final judgment, subject, of course, to

further modification, altering, or amendment, as subsequent developments may justify.

In Gury v. Gury (Cal. App.), 300 P. 81, 83, which was a case involving the custody of a

child, the court says: The authorities are clear that a change which materially affects thejudgment and the rights of the parties against whom it is rendered and which involves the

exercise of judicial discretion amounts to a new judgmentciting authority.

We think this is such a case. There was a material FKDQJHDIIHFWLQJWKHULJKWVRIWKH

SDUWLHVDQGWKHPDNLQJRIWKHFKDQJHLQYROYHGWKHH[HUFLVHRIMXGLFLDOGLVFUHWLRQ


change affecting the rights of the parties, and the making of the change involved the exerciseof judicial discretion.

4. The determination of December 3, 1930, being a final judgment or decree, the

respondent had the right to move for a new trial and to appeal from the order denying the

same within sixty days from the day it was entered in the minutes of the court. It is the

practice of the clerk to jot down, at the time an order, judgment, or decree is entered, the

substance of the same, and thereafter to enter it in a formal manner in the minute book so

known and designated. It appears that the court did not enter in the minute book the order


21/342

denying the motion for a new trial in this matter until on or after December 28, 1930. The

appeal was taken February 26, 1931, or within sixty days from such entry, which was within

apt time. It follows that the motion must be denied.

It is so ordered.

On Petition for Rehearing

October 29, 1931. 3 P.(2d) 1071.

1. Appeal and Error.

Judgment is final which disposes of issues and leaves nothing for future

consideration of court, and when cause is retained for further action it is interlocutory.


Hawkins, Judges.

On petition for rehearing of motion to dismiss appeals. Petition denied.

Samuel Plattand Cooke & Stoddard, for Appellant.

Thatcher & Woodburn and Forman & Forman, for Respondent.

OPINION


Respondent has presented his petition for a rehearing.

Counsel quote from our opinion the language in which ZHVHHNWRGLVWLQJXLVKDMXGJPHQWIURPDQRUGHUZKHUHLQZHVD\WKDWDMXGJPHQWLVDILQDOGHWHUPLQDWLRQRIWKHULJKWVRIWKHSDUWLHVZKHUHDVDQRUGHULVDGLUHFWLRQRIWKHFRXUWSUHOLPLQDU\DQGLQFLGHQWDOWRVXFK

ILQDOGHWHUPLQDWLRQDQGVRIRUWK


we seek to distinguish a judgment from an order, wherein we say that a judgment is a final

determination of the rights of the parties, whereas an order is a direction of the courtpreliminary and incidental to such final determination, and so forth.

Accepting our statement in which we sought to distinguish between a final judgment and

an order, counsel contends that it must follow that the action of the court on December 3,

1930, was an order, and not a final judgment from which an appeal may be taken. In support

of their contention it is said, quoting from Hunter v. Hunter, 111 Cal. 261, 43 P. 756, 31 L. R.

A. 411, 52 Am. St. Rep. 180, that the allowance of alimony is an incident to an action for a

divorce, and by analogy the question of the custody of children is an incident to a divorce,


22/342

hence it must follow that the ruling of December 3 must be an order and not a judgment.

In Lake v. Lake, 17 Nev. 230, 30 P. 878, 879, which was a suit for a divorce and alimony,

the court said: That appellant had the right to appeal from a specific part of the whole

judgmentthe portion against herwithout disturbing the other portions in her favor, we

have no doubt.

In Lake v. Bender, 18 Nev. 361, 4 P. 711, 7 P. 74, it was held that where a divorce wasfirst granted and subsequently the issues as to the property were determined, the court had

authority to entertain a motion for a new trial as to the property rights. No motion for a new

trial was made as to the divorce, but was made as to property rights. The motion was denied.

An appeal was taken, and though the court recognized that the question of property rights was

one incident to the divorce suit, it held that the right to move for a new trial and to appeal

existed. Thus we see that our own court long ago took a position that an appeal might be

taken upon that portion of a case which was incident to the main issue.

Counsel contend that the views expressed in our former opinion are contrary to our

holding in Hough v. Nevada Treasure M. Co., 53 Nev. 333, 300 P. 948. We GRQRWWKLQNVR


do not think so. In that case the order appealed from was one vacating a final judgment,

leaving the case standing to be tried upon the issues made by the pleadings, whereas in the

instant matter such was not the fact.

Nor do we find anything in the opinion of Nevada First National Bank v. Lamb, 51 Nev.

162, 271 P. 691, 692, contrary to our previous holding. It is true that in that case we said: It

is a well-known general rule that there can be but one final judgment in a case. We thank

counsel for calling our attention to the opinion mentioned. Their only mistake lies in the factthat they did not read far enough, for we quoted therein from an earlier Nevada case, Perkins

v. Sierra Nevada Silver Min. Co., 10 Nev. 405, as follows: A judgment or decree is final that

disposes of the issues presented in the case, determines the cost, and leaves nothing for the

future consideration of the court. When no further action of the court is required in order to

determine the rights of the parties in the action, it is final; when the cause is retained for

further action it is interlocutory.

Thus it appears that we recognized the correct rule to be that a judgment is final which

disposes of the issues and leaves nothing for the future consideration of the court, and that

when the cause is retained for further action it is interlocutory.

We cannot see why the same rule would not apply to the question of the custody of thechildren.

We must not overlook the fact that the practice is different in divorce suits involving the

question of alimony and custody of children, than in an action at law. In the later there is no

such thing as amending or modifying a judgment once rendered, except as the result of an

appeal, while in divorce suits authority may be retained to modify the decree, or order as our

statute calls it, as to alimony and custody of the children.

We do not wish to be understood as holding that a decree might not be modified as to the


23/342

custody of children even if the authority to do so were not reserved. On this point we express

no opinion.


We fail to see the force of the contention relative to the entry of the order denying the

motion for a new trial. The entry of the order was a ministerial act of the clerk. In our former

opinion we said the court did not enter the order, whereas we should have said the clerk did

not enter it.

Petition denied.

On Merits

April 26, 1932. 10 P.(2d) 963.

1. Divorce.

Supreme court would not penalize husband for refusing divorced wife permission to

see child as required by order, where trial court did not take cognizance of his refusal to

comply with order and in view of whole record.

2. Divorce.

Letter to husband by third party suggesting that for a sum of money he thought he

could bring about a settlement of controversy as to child's custody heldinadmissible

against divorced wife seeking modification of decree regarding custody, in absence of

evidence that she authorized such proposal.

3. Divorce.

Adjudication of lower court that both parties to divorce action were suitable persons

to have custody of child is conclusive as to conditions then existing, and should not be

altered unless there has been a change of conditions which make it necessary for welfare of

child that order be modified.

4. Divorce.

In determining question of custody of a child, sole consideration should be its

welfare (sec. 9462, N. C. L.).

5. Divorce.

Fact that husband's second wife was unfriendly to divorced wife heldnot to affect

child's welfare and warrant change of custody (sec. 9462, N. C. L.).

6. Divorce.

Error in admitting in evidence third party's letter to husband suggesting he thought


24/342

he could bring about a settlement of controversy over child's custody, for monetary

consideration, heldnot prejudicial to divorced wife.

Divorced wife was in no way shown to have authorized the letter or to have

known of its being sent. The only purpose of such evidence could be to show that

she was endeavoring to extort a large sum of money from child's father, but whenapproached along this line she spurned the offer of money.

7. Divorce.

Even if divorced wife had sought to obtain money from child's father for settlement

of controversy over its custody, WKDWIDFWZRXOGQRWQHFHVVDULO\DIIHFWWKHGHWHUPLQDWLRQRIZKDWZDVIRUWKHZHOIDUHRIWKHFKLOG


that fact would not necessarily affect the determination of what was for the welfare of the

child.

8. Divorce.

Where divorced wife was nonresident, fact that husband having custody of child

took it to adjoining state, heldnot to justify change in custody.

9. Divorce.

In awarding custody of child of divorced parents, very large discretion is vested intrial court, and its orders should not be lightly overturned.


Hawkins, Judges.

Action by Ralph Elsman against Beatrice Elsman. From an order modifying prior order

and original divorce decree regarding custody of child, defendant appeals. Affirmed.

Cooke & Stoddardand Samuel Platt, for Appellant:

The court erred in overruling and denying defendant's motion to suspend and abate the

plaintiff's motion and proceeding for in that plaintiff was guilty of contempt of the court by

his willfully disobeying the order of the court which he was by his motion herein seeking

affirmative relief respecting, by a modification thereof in his favor. 32 C. J. 433, sec. 739, n.

63; 32 C. J. 511, sec. 891, n. 27; Soderberg v. Soderberg (Cal.), 219 P. 82; Knoob v. Knoob

(Cal.), 218 P. 568; Weeks v. Superior Court (Cal.), 203 P. 93; Funfar v. Superior Court

(Cal.), 290 P. 626, 627; State v. Ronald (Wash.), 180 P. 125; Casebolt v. Butler (Ky.), 194 S.


25/342

W. 306; Monterey Coal v. Superior Court (Cal.), 104 P. 585; McClung v. McClung, 40 Mich.

493; Baily v. Baily (Ia.), 28 N. W. 443; Skirven v. Skirven (Md.), 140 Atl. 205; Campbell v.

Campbell (Ky.), 4 S. W. (2d) 1112; Gant v. Gant (Tenn.), 53 A. D. 736; 6 R. C. L. 526, sec.

39; 13 C. J. 91, sec. 139; Hovey v. Elliott (N. Y.), 39 L. R. A. 449, affd. 42 L. Ed. 215; Early

v. Early (D. C.), 261 Fed. 1003-1004.

The court erred in overruling defendant's objection to plaintiff's exhibit 9, being apurported letter from one D. Philip MacGuire to plaintiff, suggesting to plaintiff that he,

MacGuire, might be able to effect a FRPSURPLVHRIWKHFRQWURYHUV\EHWZHHQSODLQWLIIDQGGHIHQGDQWUHODWLYHWRWKHFKLOGLIGHIHQGDQWZLOOOLVWHQWRUHDVRQDQGLISODLQWLIIZLOOSXWXS

DVXPRIPRQH\LQVL[ILJXUHVZHOOXSHWF


compromise of the controversy between plaintiff and defendant relative to the child if

defendant will listen to reason and if plaintiff will put up a sum of money in six figures, well

up, etc.there being no proper, sufficient or any foundation laid showing or tending to show

that defendant had any previous notice or knowledge whatever of said MacGuire sending

such or any similar letter to plaintiff; and there was no evidence directly or indirectly

connecting her with the transaction of said letter being sent by said MacGuire.

Admission in evidence of the MacGuire letter was highly prejudicial to appellant. 4 C. J.

910, 911, 912, sec. 288 and n. 83; Peterson v. Pittsburg Silver Peak G. M. Co., 37 Nev. 117;

Meek v. Daugherty (Okla.), 97 P. 557; Wells Fargo & Co. v. Mitchell (Tex.), 139 S. W. 926;

State, etc. Bank v. Roseberry (Okla.), 148 P. 1034; Muncey v. Pullman, etc. Co. (Pa.), 112

Atl. 130; Acree v. Shaw (Ala.), 80 So. 817; Ford v. Piowaty & Sons, 197 Ill. 417; Levy v. J.

L. Mott, etc. Co., 127 N. Y. S. 506; Metropolitan State Bank v. McNutt (Colo.), 215 P. 151;

Southern Surety Co. v. Nalle & Co. (Tex.), 242 S. W. 197; Saari v. Wells Fargo Co. (Wash.)186 P. 898; St. Louis etc. Co. v. Freasier (Tex.), 237 S. W. 344; 2 R. C. L. 235, sec. 196; 2 R.

C. L. 253, sec. 206.

Thatcher & Woodburn and Forman & Forman, for Respondent:

The law requires a party urging such a motion as here presented to the lower court by the

defendant to make a sufficient showing of a change of circumstances as to warrant a

modification of the original decree and orders of the court. Crockett v. Crockett, 132 Iowa

388, 106 N. W. 944; Rasmussen v. Rasmussen, 231 P. 964; Kettelle v. Kettelle, 294 P. 453;

Wood v. Wood, 216 P. 937.

In determining whether the motions of the respective parties should be granted, or whether

both should be denied, the lower court had one guide only to follow. That guide was what

was to the best interests of the child. Atkins v. Atkins, 50 Nev. 333; Ex Parte 0DGVRQ3



26/342

Madson, 169 P. 336; Wilkerson v. McGinn, 188 P. 472; Brock v. Brock, 212 P. 550.

There was presented to the lower court evidence which tended to establish that the best

interests of the child would be benefited by remaining with the plaintiff.

In arriving at its decision, under the facts, the trial court was clothed with a broad

discretion. Sec. 9462, N. C. L.; Atkins v. Atkins, supra.

The sole question before this court is whether the lower court abused its discretion.

Lefebvre v. Lefebvre, 192 P. 76; Black v. Black, 86 P. 505; Bancroft v. Bancroft, 173 P. 582.

Unless modified or set aside, a decree awarding the custody of a child is conclusive as to

all questions affecting the matter existing at the time it was rendered, and cannot be

collaterally attacked. 19 C. J. 349. See, also, 19 C. J. 352, 366; Crockett v. Crockett, 132 Ia.

388, 106 N. W. 944.

It is contended by respondent that the MacGuire letter was admissible, yet even if that

letter had been inadmissible and incompetent as evidence, no reversal of this case would be

warranted because of its admission, for the reason that no prejudice resulted therefrom to

defendant. In this state, where a case is tried without a jury, the admission of incompetent

evidence does not necessarily require a reversal. Rehling v. Brainard, 38 Nev. at p. 21;Rawhide Baloon Fraction Mining Co. v. The Rawhide Coalition Mines Co., 33 Nev. 307.

The mere failure of a complainant to comply with an interlocutory order of the court without

any adjudication that he is in contempt does not preclude him from being heard in the case.

13 C. J. 91.

OPINION


This is a proceeding involving the custody of an infant child.

The parties were intermarried on October 22, 1923, and lived for some years at Great

Neck, on Long ,VODQG1HZ


27/342

Upon the trial, on January 4, 1927, in which the plaintiff did not appear, the wife was

awarded a divorce because of the cruel and inhuman treatment of the plaintiff. The court also

found that both parties were fit, proper, and suitable persons to have the sole custody, care,

and control of the minor child mentioned, but that it was for the best interest of the child that

the plaintiff be awarded the custody of said minor. This finding was based upon the testimony

and agreement of the defendant. It was further ordered that the defendant might have thepossession of the child in Washoe County, Nevada, for one month and for two weeks at

another time, annually.

In February, 1927, the plaintiff married Miss Florence Diehl, the nurse mentioned. On

March 31, 1928, plaintiff filed a notice of motion to change the decree as to the custody of the

child. The defendant at that time was in New York state, and she filed a counter motion.

Upon the hearing of these motions the court, in May, 1928, entered an order modifying the

original decree so that the defendant might only visit the child at the home of the plaintiff, at

Franktown, Nevada, and not HOVHZKHUHXQOHVVRWKHUZLVHPXWXDOO\DJUHHGGXULQJRQHKRXURIHDFKGD\RIRQHFDOHQGDUPRQWKLQHDFKDQGHYHU\\HDUVDLGPRQWKWREHGHVLJQDWHG

E\WKHGHIHQGDQWXSRQWKLUW\GD\VQRWLFHWRWKHSODLQWLII


elsewhere, unless otherwise mutually agreed, during one hour of each day of one calendar

month in each and every year; said month to be designated by the defendant upon thirty days'

notice to the plaintiff. Neither of the aforesaid orders were appealed from.

In the fall of 1929, the plaintiff sought to have the former order modified so as to deny to

the defendant the right of visitation. Thereafter the defendant filed a motion asking for a

modification of the order so as to give her exclusive custody of the child. The matter came onfor hearing on February 6, 1930, and continued intermittently for many weeks, having been

submitted on oral and documentary evidence, depositions, and affidavits.

On December 3, 1930, the court entered an order denying both the motion of the plaintiff

and that of the defendant. However, it modified the order of May 2, 1928, being the order

modifying the original decree, to the effect that the defendant be entitled to visit said child for

one hour each day during the month of July of each year, at the residence of the plaintiff at

Franktown, Nevada, or at his home in Reno, Nevada, under like conditions mentioned in the

former order.

The defendant has appealed.

The plaintiff, in support of his petition, set forth several grounds, all of which are

enumerated in his brief, but since nothing can be considered which happened prior to the

order of May, 1928, we will not state his contention as to those, except where they may be

said to be of such nature as to demand our consideration in connection with the alleged

circumstances arising subsequent to May, 1928.

Plaintiff alleges his marriage to Florence Diehl Elsman in 1927, and that by reason of the

absence of defendant and the care of the stepmother the child had come to regard the latter as

his mother; that since the 4th of January, 1927, defendant had not made inquiry of any one


28/342

personally as to his health or welfare, and had manifested but little interest in him, and that

the child had QRWUHWDLQHGDQ\ORYHRUDIIHFWLRQIRUWKHGHIHQGDQWWKDWWKHGHIHQGDQWQRORQJHUNQHZRUXQGHUVWRRGWKHUHTXLUHPHQWVRIWKHFKLOGVRDVWRJLYHKLPWKHQHFHVVDU\FDUHWKDWKHUVROHLQWHUHVWLQWKHPLQRUFKLOGKDVEHHQWRXWLOL]HWKHORYHDQGDIIHFWLRQRIWKHSODLQWLIIIRUWKHFKLOGWRH[WRUWODUJHVXPVRIPRQH\IURPKLPWKDWGHIHQGDQWKDVKDUDVVHGDQGDQQR\HGWKHSODLQWLIIDQGNHSWKLPLQDQHUYRXVDQGXQVWUXQJFRQGLWLRQDQG

WKDWWKHVHDFWLRQVRQWKHSDUWRIWKHGHIHQGDQWKDYHUHDFWHGXSRQWKHFKLOGWKURXJKWKHSODLQWLII


not retained any love or affection for the defendant; that the defendant no longer knew or

understood the requirements of the child so as to give him the necessary care; that her sole

interest in the minor child has been to utilize the love and affection of the plaintiff for the

child to extort large sums of money from him; that defendant has harassed and annoyed theplaintiff and kept him in a nervous and unstrung condition; and that these actions on the part

of the defendant have reacted upon the child, through the plaintiff.

Defendant, in her petition to modify the order, alleges that the stipulation of January 3,

1927, which was the basis of the decree of January 4, 1927, awarding the custody of the child

to the plaintiff, was induced by false and fraudulent representations made by plaintiff to

defendant, and the legal advice which she received at the time; that the modification of the

decree of May, 1928, was entered through inadvertence and excusable neglect; that on

account of the tender age of the child it would be to his best interest to be placed in the

custody of the mother, for the reason that the plaintiff is of a nervous, excitable, and irritable

disposition, and of a violent and ungovernable temper; that the plaintiff and Florence Diehl

Elsman had conspired to deprive the defendant of the right to visit the child; that since May,1928, the plaintiff and the child have moved from Nevada to the State of California; that

since the remarriage of plaintiff two minor children have been born as issue of such marriage;

that the defendant is on unfriendly terms with the present wife of plaintiff; that plaintiff has

an extreme hatred for the defendant and has communicated the same to the child, and has

concealed from said child the true parentage as to his mother, and has continued to wean

away the affection of the child for its natural mother; and that the plaintiff has willfully and

maliciously refused to comply with the order of the court in respect to the defendant's visits to

the child.

1. The first matter which we sill consider is the motion of the defendant to abate the

plaintiff's motion WRPRGLI\RQWKHJURXQGWKDWKHZDVLQFRQWHPSWRIFRXUWLQWKDWKHKDGUHIXVHGWKHGHIHQGDQWSHUPLVVLRQWRVHHWKHFKLOGWKRXJKVKHKDGJLYHQKLPWKHUHTXLUHG

QRWLFH



29/342

to modify, on the ground that he was in contempt of court, in that he had refused the

defendant permission to see the child, though she had given him the required notice. While

the conduct of the plaintiff in this regard, as in some other things, particularly his repeated

and uncalled for insinuations while on the witness stand, does not comport with our ideals of

what one situated as he was should have been, yet in view of the fact that the trial court did

not see fit to take cognizance of his refusal to comply with the order, and in view of therecord as a whole, we are of the opinion that we should not inflict a penalty for a violation of

that court's order.

2. It is next contended that the court erred in admitting in evidence a letter written to the

plaintiff by one D. Philip MacGuire, in which he suggested to the plaintiff that he thought that

for a sum of money he could bring about a settlement of the controversy as to the custody of

the child. We think the court erred in admitting this letter in evidence, for, though it appears

that MacGuire is a relative of the defendant and had been one of her advisors, there is nothing

in the record to indicate that he had any authority from the defendant to make such proposal.

Indeed, in the letter he disclaimed any such authority; furthermore, the defendant had

repeatedly signified and we are convinced that money was not the motivating cause in her

contest over her right to have access to the child and to his custody at times. Whether theruling was prejudicial remains to be determined.

The next point goes to the proposition that the court unduly restricted the

cross-examination of the plaintiff. We have carefully examined the record in this connection

and are of the opinion that the court not only did not err, but that its ruling on the point was

clearly right. In fact, the matter sought to be gone into was one upon which both sides were

agreed. It was not in issue. The so-called cross-examination which counsel desired to make

was not cross-examination at all, as no testimony had been given on direct examination on

the point.

3. We enter upon the consideration of this matter XSRQLWVPHULWVZLWKDVROHPQ

DGMXGLFDWLRQRIWKHORZHUFRXUWWRWKHHIIHFWWKDWERWKSDUWLHVDUHILWSURSHUDQGVXLWDEOHSHUVRQVWRKDYHFXVWRG\RIWKHFKLOG


upon its merits with a solemn adjudication of the lower court to the effect that both parties are

fit, proper, and suitable persons to have custody of the child. Such determination is

conclusive as to the conditions then existing, and should not be altered unless there has been

a change of conditions which make it necessary for the welfare of the child that thelast-mentioned order be modified. This rule of law is overwhelmingly established by

authority, and the considerations leading to such conclusion seem unanswerable in reason.

Milner v. Gatlin, 143 Ga. 816, 85 S. E. 1045, L. R. A. 1916b, 977; Dawson v. Dawson, 57 W.

Va. 520, 50 S. E. 613, 110 Am. St. Rep. 800; Weatherton v. Taylor, 124 Ark. 579, 187 S. W.

450; Jewett v. Jewett, 73 Mont. 591, 237 P. 702; Griffin v. Griffin, 95 Or. 78, 187 P. 598;

Crockett v. Crockett, 132 Iowa, 388, 106 N. W. 944; Bates v. Bates, 166 Ill. 448, 46 N. E.

1078; Bryan v. Lyon, 104 Ind. 227, 3 N. E. 880, 54 Am. Rep. 309; Raily v. Raily (Ky.), 66 S.


30/342

W. 414; Flory v. Ostrom, 92 Mich. 622, 52 N. W. 1038; Eckhard v. Eckhard, 29 Neb. 457, 45

N. W. 466; 19 C. J. 350; 9 R. C. L. p. 476; see note to Averbuch v. Averbuch, Ann. Cas.

1916b, 894.

4. In determining the question of the custody of a child, the sole consideration of the court

should be its welfare. Atkins v. Atkins, 50 Nev. 333, 259 P. 288; 9 R. C. L. p. 475; 19 C. J.

343. In fact, our statute settles this question. It provides: The court * * * shall make suchdisposition of, and provision for, the children, as shall appear most expedient under all the

circumstances, and most for the present comfort and future well-being of such children.

(Section 9462, N. C. L.)

The section just mentioned also provides that the court upon good cause shown, may

change the custody of a child.

Do the developments subsequent to May 2, 1928, warrant a change of custody of the

child?

The record in this case is very voluminous and precludes a considerati

nevada reports 1931-1933 (54 nev.).pdf

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