Argument for Respondent mortgage, rather than as a conditional sale. Mathews v. Sheehan, 69 N. Y. 585; 24 R. C. L. 744; 11 C. J. p. 412. The mere fact that by agreement the title is to remain in the vendor until the notes for the purchase price are paid, does not necessarily import that the transaction was a conditional sale. Chicago Ry. Equip. Co. v. Merchants' Bank, 136 U. S. 268; Young v. Phillips, 169 N. W. 822; Atkinson v. Japink, 152 N. W. 1079. The provisions of the agreement indicate a mortgage, rather than a conditional sale. Tompkins Co. v. Monticello C. O. Co., 137 Fed. 630. There was no waiver of notice of the decision of the lower court. Keane v. Murphy, 19 Nev. 95. Written notice was necessary, unless waived by facts appearing in the records, files, or minutes. Mere actual notice is insufficient. Mallory v. See, 129 Cal. 356. Where a notice is authorized or required in legal proceedings, written notice is understood. 29 Cyc. 1117; Pierson v. Lovejoy, 53 Barb. 407; McEwen v. Montgomery, 5 Hill, 101; In Re Cooper, 15 Johns. 533; Norton v. New York, 38 N. Y. S. 90; State v. Elba, 34 Wis. 169. Counsel for respondent served written notice of the decision, thereby indicating their construction of the law. Under the doctrine of contemporaneous construction, a course of conduct which indicates a particular understanding of a statute will be given great weight by the court in determining its real meaning. 36 Cyc. 1139; Nimrod Coal Co. v. Stevens, 67 N. E. 389. Chandler & Quayle, for Respondent: Demand is required only when the property sought is in the lawful possession of another. Whitman M. Co. v. Tritle, 4 Nev. 494; Ward v. Carson R. W. Co., 13 Nev. 44; Hanson v. Chiatovich, 13 Nev. 393. Under the execution sale appellant obtained only such right, title, and interest as the judgment debtor had in and to the automobile on the day execution was levied. Rev. Laws, 5296; Hanson v. Chiatovich, supra. It was not necessary to prove possession in appellant Argument for Respondent at the time of the commencement of the action. The common-law rule was that an action in replevin could not be maintained against a defendant who was not in possession at the time the demand was made or suit commenced. This still remains the general rule, but "the one important exception being cases in which the defendant has parted with the property in bad faith." Andrews v. Hoeslechm, 18 L. R. A. (N.S.) 1265; 23 R. C. L. 876; Holliday v. Poston, 38 S. E. 449. A person in possession of goods without right cannot avoid an action of replevin by transferring the possession to another, even though the transfer be made before the commencement of the suit. Helman v. Withers, 30 N. E. 5; Singer S. M. Co. v. Robertson, 127 N. W. 866. If necessary to sustain the judgment, this action may be regarded, under the pleadings and proof, as one for conversion, in which, clearly, possession in defendant at the commencement of the action need not be proved. Faulkner v. Bank, 62 Pac. 463; Benzler v. Van Fleet, 152 Pac. 736; Dennison v. Chapman, 39 Pac. 61; Bedolla v. Williams, 115 Pac. 747; Townsend v. Hagar, 72 Fed. 949; Lytton Mfg. Co. v. House Lumber Co., 77 S. E. 233; Bradburn v. Roberts, 61 S. E. 617. Possession in appellant at the commencement of the action was legally proved. The law presumes, in the absence of a contrary showing, that such possession continued to the time the action was commenced. "Likewise, possession being a fact continuous in its nature, when its existence is once shown, it will be presumed to continue until the contrary is proved." 10 R. C. L. 872; Table Mountain Co. v. Waller's Co., 4 Nev. 219; 1 Jones, Evid., sec. 58a; Wigmore, Evid., sec. 2530; O'Neil v. N. Y. M. Co., 3 Nev. 141; Dixon v. Ahern, 19 Nev. 422; Wails v. Farrington, 116 Pac. 428. The original contract was not a chattel mortgage, but a conditional sale. Uniform Sales Act, Stats. 1915, p. 199. "Where the buyer is by the contract bound to do Opinion of the Court-Ducker, J. anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer." Benj., Sales, 3d ed. sec. 320; Harkness v. Russell, 118 U. S. 663; Bierce v. Hutchins, 205 U. S. 340; Bryant v. Swafford, 214 U. S. 279; Bailey v. Baker, 239 U. S. 268; In Re Newton & Co., 153 Fed. 841; Big Four I. Co. v. Wright, 207 Fed. 535; In Re Columbus Buggy Co., 143 Fed. 859; Studebaker Bros. Co. v. Mau, 80 Pac. 151. The court did not err in awarding damages. The impairment of its value, and the deterioration from the use of the car, justified the court in awarding damages. 34 Cyc. 564; Morris v. Allen, 121 Pac. 690; Blackie v. Cooney, 8 Nev. 41. Appellant's notice of intention to move for a new trial came too late. Stats. 1907, p. 359; Rev. Laws, 5323. His counsel was present in court when the decision was rendered, and asked to be advised of the entry of formal judgment. These facts constitute waiver of right to notice of decision, even in those jurisdictions where written notice is required by the statute. Gardner v. Stare, 67 Pac. 5; Barron v. Deleval, 58 Cal. 95. By the Court, DUCKER, J.: This is an action of claim and delivery under the statute, brought to recover the possession of a certain automobile with equipment and accessories. The prayer of the complaint is as follows: "Wherefore, plaintiff demands judgment against the defendants for the recovery of the possession of said property, goods and chattels, or for the sum of $600, the value thereof, in case a delivery cannot be had, together with $350 damages, and for its costs of suit." The plaintiff, respondent here, prevailed in the lower court and judgment was entered to the effect that the plaintiff recover from the defendants the possession of Opinion of the Court-Ducker, J. the property described in the complaint, together with $150 damages, and in case delivery thereof could not be had the sum of $600, the value of the property, in addition to its said damages and costs. A motion for a new trial was made, which was denied by the court. From the judgment and order denying the motion for a new trial, the defendant appealed; the defendant Witcher appealing separately from the other defendants. This is the appeal of the defendant Witcher. The trial court denied the motion upon the ground, among others, that appellant lost his right to a new trial by his failure to apply therefor within the time allowed by law. This is one of the questions presented by the assignment of errors. Respondent asserts that the motion was properly disregarded because not made within the time prescribed by the statute governing such cases, and for the further reason that the facts show a waiver of the right. The admitted facts bearing upon the question are as follows: On November 30, 1918, the court, in the presence of the attorneys for appellant and respondent, orally rendered its decision in favor of the respondent in open court, and directed the attorneys for the latter to prepare findings and judgment in accordance with the decision. It was thereupon agreed between the attorneys for appellant and respondent that the attorney for appellant should be advised immediately upon the entry of judgment in order that he might file a bond to stay execution pending a motion for a new trial. On December 16, 1918, respondent filed and served upon the respective attorneys for appellant and his codefendants written notice of the decision of the court. On December 21, 1918, the appellant on his own behalf filed with the clerk of the court and served upon counsel for respondent their several notices of intention to move for a new trial. It thus appears that appellant's notice of intention to move for a new trial was not filed or served upon respondent within ten days after the oral decision Opinion of the Court-Ducker, J. was rendered by the court, but within ten days after receiving said written notice of the decision. His counsel contends that such written notice is required by statute and that he was therefore within the time prescribed by law. The question turns upon the meaning of section 381 of the present civil practice act of this state, concerning the kind of notice of the decision of the court required to be given to the party who may desire to move for a new trial. Section 197 of the old act adopted in 1869 (Comp. Laws, 3292) in respect to this requirement read, "Within ten days after receiving written notice of the rendering of the decision of the judge," and remained unchanged until the adoption of our present civil practice act in 1912. Section 381 of this latter act, containing this requirement, reads: "The party intending to move for a new trial must, within five days after the verdict of the jury, if the action was tried by jury, or within ten days after notice of the decision of the court, or referee, if the action was tried without a jury, file with the clerk, and serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or upon the minutes of the court." Rev. Laws, 5323. It will be observed that while the phraseology of the requirement is slightly altered in the latter provision, there is no substantial change except in the omission of the word "written." It is suggested that this may have been an inadvertent omission on the part of the legislature. We see nothing, however, in the language of the entire provision to warrant this assumption, and are inclined to the other view taken by counsel for appellant that the word "notice" was used in the sense of written notice, as commonly meant in judicial proceedings. In 29 Cyc. 1118, the rule is thus unqualifiedly stated: "The rule is well settled that where a notice is required VOL. 44-29 |