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

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

(29 Nev. 459) STATE ex rel. BOTSFORD V. LANGAN, Dis

trict Judge. (No. 1,737.) (Supreme Court of Nevada. Sept. 26, 1907.) 1. MAXDAMU'S-OTHER ADEQUATE REMEDY.

Mandamus will not lie where there is a plain, speedy, and adequate remedy, by motion to dismiss an appeal, for determination of the same matter.

Ed. Xote.--For cases in point, see Cent. Dig. vol. 33, Mandamus, $ 8.] 2. APPEAL-APPEALABLE ORDER.

An appeal from an order setting aside a default entered by the clerk is not within the cases in which Civ. Prac. Act, $ 330, provides that an appeal may be taken, and therefore will not lie.

[Ed. Note.--For cases in point, see Cent. Dig vol. 2. Appeal and Error, $ 766.]

Mandamus by the state, on the relation of Charles H. Botsford, against Frank P. Langan, district judge of the First judicial district. Application dismissed.

Hall Thayer & Steele and C. L. Ilarwood, for relator. Detch, Carney & Stevens, for re spondent.

SWEENEY, J. This is an application for a writ of mandamus against Frank P. Langan, district judge of the First judicial district of the state of Nevada, for the purpose of compelling him to hear a motion to dissolve or modify an injunction or increase the injunction bond in the case now pending in the district court of the First judicial district of the state of Nevada in and for the county of Esmeralda, entitled "I. C. Van Riper and Joseph H. Hutchinson, Plaintiffs, v. Charles H. Botsford, James Davis, J. P. Loftus, and James Davis, Doing Business under the Firm Name and Style of Loftus & Davis, Goldfield Mohawk Mining Company, Goldfield Consolidated Mines Company, Combination Mines Company, George S. Nixon, and George Wingfield, Defendants."

It appears from the record in this case that the plaintiffs filed a complaint against the above-named defendants for the purpose of recovering from said defendants a twothirds interest in 100,000 shares of the capital stock of the Goldfield Consolidated Mines Company of Nevada of the approximate value of half a million dollars. Upon filing of the complaint, an injunction was secured from the district court on a bond in the sum of $15,000, enjoining the defendants from delivering to their codefendant Botsford the said stock in question until the determination of this suit. Upon the petition of the defendant Botsford for the removal of said cause to the Circuit Court of the United States in and for the Ninth District of Nevada, the district court of Esmeralda county remanded Silid case to said United States Circuit Court on or about the 1st day of February, 1.907, and thereafter, to wit, on the 12th day of June, 1907, the said United States Circuit Court remanded said cause back to the said district court in and for Esmeralda county for trial. Subsequent to

91 P.-47

February 1, 1907, when said order of renewal was made from the said state court to the United States Circuit Court and prior to June 12, 1907, when the order remanding said cause from said United States Circuit Court back to said district court was entered, to wit, on the 6th day of March, 1907, and while said cause was pending on removal in said United States Circuit Court. the plaintiffs caused to be issued an alias summons out of the said state court, and caused said alias summons to be served by the sheriff of Esmeralda county upon said Chas. H. Botsford, the relator herein, on or about the 7th day of March, 1907, and on the 12th day of June, 1907, the plaintiffs, through their attorneys, caused the default of said Charles H. Botsford and others of the defendants to be entered by the clerk of the said district court of Esmeralda county. On or about the 7th day of June, 1907, said Charles H. Botsford filed in said cause in said state district court a motion to vacate and set aside said default, and on the 29th day of June, 1907, after hearing arguments upon said motion, Judge Langan, district judge of said state court, entered an order vacating and setting aside the said default, and thereafter, to wit, on the 6th day of August, 1907, plaintiffs perfected an appeal to this court from said order setting aside said default. Upon the 2d day of August, 1907, the relator herein, through his attorneys, served upon the attorneys for said plaintiffs Van Riper and Hutchinson a notice that on Monday, the 12th day of August, at the county courthouse of Lyon county, Nev., at the town of Dayton, in said county, they would apply to the Honorable F. P. Langan, the respondent herein, judge of the First judicial district court aforesaid, to hear a motion to dissolve or modify the injunction theretofore granted in said cause, or to increase the bond of the injunction theretofore issued, and on said date attorneys for said plaintiffs appeared and entered a protest against proceeding, with the motion to dissolve or modify the injunction or to increase the bond for the injunction, and the said district court, after considering the said protest, declined to proceed, and refused to have the said hearing or entertain the same in any way, and announced that, during the pendency of the appeal from the order vacating and setting aside the default, he would not proceed with said motion or any motion of like character. Upon the hearing of the application for a writ of mandamus in this court, counsel for the plaintiffs appeared and demurred to the sufficiency of the petition, and further moved to dismiss the application of relator for a writ of mandamus upon the ground that the defendants had a plain, speedy, and adequate remedy at law. Upon the overruling of the demurrer as to the sufficiency of the petition, counsel for relator moved that the appeal of plaintiffs in the case entitled “L. C. Van Riper and Joseph H. Hutchinson v. Charles

H. Botsford et al." be dismissed because of appeal to this tribunal is a matter purely of want of jurisdiction in this court to de- statutory right, and, unless authorized by termine an appeal from an order vacating or statute, any attempted appeal taken from an setting aside a default entered by the clerk, ! order not appealable is void, and therefore and moved that said case on appeal berein could not confer any jurisdiction upon this be placed on the calendar, and they then and court to act. It is clear that, where an order there served notices upon counsel for the is nonappealable, no jurisdiction can be plaintiffs Van Riper and Hutchinson, and conferred on or entertained by this court by asked a continuance of the case for eight : the perfecting of an attempted appeal. Under days, and moved that time for service of our construction of the statute above quoted notice of said application to have said case regarding appeals, we are of the opinion that placed on the docket and notice of motion the order in question from which the appeal to dismiss said appeal on the ground afore- in the present case is attempted is nonappealsaid be shortened to eight days from then, able. Rauer's Law & Collection Co., Inc., v. at which time both parties agreed to argue | Standley (Cal. App.) 84 Pac. 214; Jordan v. said motions to dismiss the application for a Hutchinson, 39 Wash. 373, 81 Pac. 867; writ of mandamus and the appeal.

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

TALBOT, O. J., and NORCROSS, J., conand motion to dismiss said appeal is whether

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

(29 Ney. 465) dismiss the appeal raises the same point, to VAN RIPER et al. v. BOTSFORD et al. wit, as to whether or not an appeal which is

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

Appeal from District CourtEsmeralda an order setting aside or vacating a default | County.

a entered by the clerk, as is desired and at

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

Detch, Carney & Stevens, for appellants. favor, and for this reason the application for

Hall, Thayer & Steele and O. L. Harwood, for a writ of mandamus is hereby ordered dis

respondents. missed.

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

for the reasons stated in, the opinion renbefore the court is whether or not an appealdered in the case entitled Charles H. Botslies to this court from an order setting aside ford, Relator, v. Frank P. Langan, District or vacating a default entered by the clerk.

Judge of the First Judicial District, State Section 3425 of our Compiled Laws, being sec

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

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

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

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

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

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

.

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

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

sue the writ of habeas corpus is derived from

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

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

Where the Supreme Court in the exercise tered in the minutes of the court. Fourth. of its original jurisdiction issues the writ of From an interlocutory judgment or order in habeas corpus, the practice is governed not by cases of partition whico determines the right

the statute, but by the rules of the court.

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

Cus

TODY of Priso.VER PENDING HEARING. sale, or division to be made, within sixty On return of a writ of habeas corpus, the days after the renditiou of the sam An original custody of petitioner is superseded, and he is then in the custody of the court, and pend- fied and convinced that the said Moyer was ing the hearing the court may in its discre

a prominent leader of bands of lawless men tion admit him to bail, remand him, or make such order as shall be deemed proper.

engaged in acts of insurrection and rebellion, [Ed. Note.-For cases in point, see Cent. Dig.

and that, so believing, he caused the arrest vol. 2. Habeas Corpus, § 63.]

and detention of said Moyer; that in his 4. SAME.

judgment, in order to prerent the said Moyer Where, on return of a writ of habeas cor

from lending aid, comfort, and direction to pus to the Supreme Court, the Governor of the

the lawless persons now engaged in rebellion state objects to the further exercise of jurisdiction by the court, and resists application for

in said county, and in order to restore public bail, pending the final hearing, on the ground tranquillity, it is absolutely necessary to dethat, as in his judgment the detention of peti

tain said Moyer and restrain him of his libtioner is a military necessity, the court is without authority in the premises, and states that he

erty; that as the officer in command of the holls petitioner by virtue of his authority under National Guard, now on duty, he detains the the Constitution as Commander in Chief of the said Moyer, and that he has been commanded National Guard, and that peace cannot be re

by the Governor of the state not to surrender stored in a county in insurrection unless petitioner remains in custody of the military au- or release the said Moyer during the existing thority, and the Adjutant General of the state and continuing condition of affairs in said declares that he detains petitioner as a mili, county, either upon writ of habeas corpus or tary necessity, and that he has been commanded by the Governor not to surrender petitioner ei- otherwise, until further orders. Attached to ther on writ of habeas corpus or otherwise, such the return is a certificate of the Governor, application for bail will be denied.

in which he states that the facts contained in 5. COURTS-SUPREME COURT-HABEAS CORPUS

the return are true, and that the arrest and -PRACTICE.

Though the chapter of the statutes on the detention of said Moyer were effected un. subject of habeas corpus is not applicable to der his direction as Governor and Commandoriginal proceedings in the Supreme Court, yet er in Chief of the National Guard of the state. the same is usually adopted by that court for

and that in his judgment the continued reguidance on questions of practice.

tention of the person of said Moyer is a necApplication for a writ of habeas corpus by

essary and essential step in the restoration Charles H. Moyer. On return of the writ,

of public peace and order and the suppression petitioner applied to be admitted to bail,

of the existing state of insurrection and reunless the date for the hearing on the mer

bellion in said county. When the return was its be fixed within five days from the return

presented, the attorney for the petitioner reday, in accordance with Mills Ann. St. S

quested that the date for the hearing upon 2108. Application for bail denied.

the merits be fixed by the court within five See 85 Pac. 190.

days from the return day of the writ, in acRichardson & Hawkins, for petitioner. N. cordance with section 2108. Mills' Ann. St., C. Miller, Atty. Gen., I. B. Melville and and stated that, unless the cause should be H. J. Iersey, Asst. Attys. Gen., and John M. set within five days, the petitioner desired Waldron, for respondents.

to be admitted to bail. The application for

bail is resisted by the Governor upon the STEELE, J. Upon the return day of the ground that as, in bis judgment, the detenwrit, and pursuant to its commands, the re

tion of the petitioner is a military necessispondents named in the writ produced the

ty, the court is without authority in the prembody of the petitioner. Upon the same day

ises. Sherman M. Bell, as Brigadier General and

Our authority to issue the writ is derived

from the Constitution, and not from the statAdjutant General of the state, made return to the writ, and therewith filed objections

ute; and, when this court, in the exercise of

, court. From the return it appears that on

practice is governed, not by the statute, but the 230 day of March, 1901, the Governor of

by the rules of the court. By the adjudicatthe state, by his proclamation, proclaimed

ed cases, it is held that upon the return 07 and declared the county of San Miguel to

the writ the original custody terminates, and be in a state of insurrection and rebellion ;

that the prisoner is then in the custody of that immediately after the issuance of the

the court, and that pending the hearing the proclamation the Governor commanded the court may, in its discretion, admit him to bail respondent to forthwith proceed to the coun

or remand him to the officer who had him in ty of San Miguel with such portion of the

charge, or make such order in the case as National Guard of the state as might be

shall be deemed proper. Mr. Justice Swayne, deemed essential, and to use such means as

speaking for the Supreme Court of the Unitmight be deemed necessary for the restora

ed States, in the case Barth v. Clise, reported tion of peace in said county and for the ef- in 12 Wall. 100, 20 L. Ed. page 393, said: fectual suppression of the insurrection and "By the common law, upon the return of a rebellion; that, pursuant to the command of writ of habeas corpus, and the production of the Governor, he proceeded to the county of the body of the party suink it out, the allSan Miguel with a portion of the National thority under which the original commitinent Guard of the state; that after his arrival took place is superseded. After that time and at the county of San Miguel he became satis- until the case is finally disposed of, the safe.

to the further exercise of jurisdiction by the its original jurisdiction, issues the writ, the

control and direction of the court to which

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

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

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

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

liberties of the people of the whole state, and the petitioner, either upon writ of habeas we think these questions are so important corpus or otherwise. The question, then, as as to require that all the members of the presented by the return, is: Can the Gov

court participate in their determination. We ernor, under the Constitution, and under the shall therefore decline to set the cause withconditions shown to exist, declare martial

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

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

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

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

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

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

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

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

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

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

into agricultural districts, authorizing a certain

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

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

with the view to the improvement of all in

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

such an association, when formed, to be a state

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

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

public corporation created for the local adminis

iration of a part of the affairs of the state ; so matter involved afferts not only the liberty

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

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