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in the proceedings concerning the sale,” so untary payment, knowledge that the execution as to bring the statute to bear (Elling v.

was void is imputed to the purchaser, although Harrington, 17 Mont. 322, 42 Pac. 851; Mer- of persons having actual knowledge, and who

there was none in fact, and this for the benefit guire v. O'Donnell, 139 Cal. 6, 72 Pac. 337, took the plaintiff's money. The language of 96 Am. St. Rep. 91), while the constructive Lord Mansfield in Moses v. Macfarlane (2 Burr. eviction necessary to authorize

1009) is applicable. In speaking of the equita

ble action for money had and received, he says: against the judgment creditor is sufficiently | 'It lies for money paid by mistake, or upon a alleged (Elling v. Harrington, supra).

consideration which happens to fail, or for [5] The bank insists, however, that the money got through imposition, or extortion, or maxim “caveat emptor" prevents McCarthy oppression, or an undue advantage taken of a

party's situation contrary to laws made for the from seeking reimbursement. This might protection of persons under these circumstancbe correct from the point of view of Gleason, es.' Schwinger v. Hickock, supra. who, as we have seen, must be regarded as

[6] Neither can it be conceded that failure out of the case, or of the Hamiltons, who to ascertain the true state of the record in were never in it. But, according to our the foreclosure proceedings was necessarily Code (section 5117), there is an implied war- such culpable negligence as to bar McCarthy ranty that the seller does not know the sale from relief upon the ground of mistake. The will not pass good title to the property, and argument is that the means of knowledge no such warranty can coexist with caveat were at his command; all he had to do was emptor as the respondents apply it. Nor to go behind the judgment, consult the judghas such application the support of general ment roll, and accurately determine thereauthority. If, at a judicial sale, which nev- from whether the judgment as to the Hamiler in contemplation of law offers more than tons was valid or void; and the underlying the judgment debtor's interest in the prop- theory is that the mistake is one of law, from erty sold, the purchaser gets all that was which relief cannot be had, because every offered, though it be less than he supposed, one is presumed to know the law.

That caveat emptor prevents him making com- such is not the rule in this state has been deplaint of that; but it is not and should not dared in several slecisions, among them be the rule that he cannot complain of the Brundy v. Canby, 50 Mont. 454, 148 Pac. judgment creditor if, because of defects in 315, wherein certain remarks, quite perti. the proceedings for which the latter is re- nent here but too extended for quotation, will sponsible, he did not get even what was of- be found (50 Mont.) at pages 471-473, 148 fered. Henderson v. Overton, supra; Bond Pac. 315. v. Montgomery, 56 Ark. 563, 20 S. W. 563, 35 [7] Our conclusion, then, is that McCarthy Am. St. Rep. 120. Particularly is this true was entitled to subrogation if he wanted it; in cases where the purchaser has referred but he could waive it, and proceed by indeto and relied on the solemn assurances of pendent action to secure reimbursement of the judgment that everything was as it the bank. In other words, he had an elecshould be, unless the law, instead of fur- tion of remedies, and he exercised that electhering its declared policy to encourage bid- tion--wisely, we think—when he filed his ding, would bait a trap with exactions be complaint in No. 3841. Having chosen, he yond the power of the average layman to could not thereafter proceed nor contempomeet. The Supreme Court of New York raneously maintain his petition in the forehas well said, and the declaration has had closure suit; hence the demurrer to that pe. the approval of this court (Elling v. Har- tition was properly sustained. His complaint rington, supra):

in the independent action, however, was "It is doubtless true that a person claiming a

sufficient to authorize recovery from the right or title under a conveyance or an instru- Townsend bank, although no cause of action ment, in execution of a power, is in general was or could be stated as to Gleason or the chargeable with notice of any infirmity in his Missoula bank. title disclosed by the instrument under which he claims, or of which, by reasonable diligence,

The order appealed from in No. 3846 is he would have become acquainted.

The therefore affirmed; but the judgment in No. rule is adopted to determine the question of su- 3841 is reversed so far as the Townsend perior equities, and to protect innocent persons bank is concerned, and the cause is remandfrom being defrauded. is invoked in this case to debar a plaintiff who ed, with directions to overrule the demurrer has paid his money in good faith, without actual of the Townsend bank. The costs of these knowledge, on a purchase under a void execu- appeals will be divided equally between that tion, from recovering it back of the persons to whom it was paid, and who were the plaintiff's respondent and the appellant, McCarthy. in and procured the sale under the execution, and who, at the time of the sale, knew that HOLLOWAY, J., concurs. BRANTLY, C. the purchaser would acquire no title to the prop. J., being absent, takes no part in the foregoerty. The principle referred to has no proper application to this case. To make out a yol- / ing decision.

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(41 Nev. 321)

der to show cause, after an entitlement of LAWSON v. DUNSEATH, Justice of the the case in the same caption as that of the Peace, et al. (No. 2271.)

complaint, shows among other things, the fol(Supreme Court of Nevada. Feb. 2, 1918.) lowing entries: JUSTICES OF TIIE PEACE 81(3)--SERVICE OF Date, 8-23-15. Demand, $271. Date, & SUMMONS-STATUTE.

23--15. Complaint filed. Case docketed. SumUnder Rev. Laws, § 5732, providing that mons issued." summons may be served by a sheriff or constable It is the contention of appellant here unof the state or by any other person of the age der his first assignment of error that, inasof 21 years or over, not a party to the action, personal service upon a nonresident defendant much as no indorsement appears upon the made by a nonresident whose affidavit recited complaint filed in the justice's court setting that he was over the age of 18 years was inef- forth the date upon which the complaint was fectual, and could not give the justice court filed, no action was commenced in that court jurisdiction to render judgment. Appeal from District Court, Nye County: Civil Practice Act.

as contemplated by the provisions of our Mark R. Averill, Judge.

The manner in which an action is comCertiorari by J. W. Lawson against Harry menced in a justice's court is governed, conDunseath as Justice of the Peace of the trolled, and prescribed, as we view it, by Township of Tonopah, County of Nye, and two sections of our Civil Practice Act. SecGeorge L. Bailey. From a judgment and or- tion 780 (section 5722, Rev. Laws), is as der dismissing the petition, petitioner ap- follows: peals. Reversed, and cause remanded, with

"An action in a justice's court is commenced instructions to grant the prayer of the pe- by filing a complaint and the issuance of a sumtition.

mons thereon." H. R. Cooke, of Tonopah, for appellant.

Section 781 (section 5723) is as follows: H. H. Atkinson, Dist. Atty., of Tonopah, for date upon which it was filed, and at any time

"The court must indorse on the complaint the respondents.

within one year thereafter the plaintiff may

have summons issued." McCARRAN, C. J. This is an appeal from

From these two sections it appears mania judgment and order dismissing a petition fest, first, that an action in a justice's court for a writ of certiorari.

is commenced when three affirmative acts On petition of appellant, the district court have been accomplished by the justice of the issued an order to show cause, addressed to Harry Dunseath, justice of the peace of Ton- peace, namely: First, the filing of the com

plaint; second, the making of an indorsement opah township, by which order that officer was required to appear and show cause, it on the complaint setting forth the date upon

which it was filed; third, the issuance of a any he had, why the proceedings mentioned

Section and described in the petition for the order summons signed by the justice. should not be quashed, vacated, and set aside, 5727, Rev. Laws. and that the justice of the peace produce be

Section 780, Civil Practice, makes clear fore the district court on said hearing the that an action in a justice's court is comentire original documents, papers, and files menced only when a complaint is filed and a pertaining to the proceedings mentioned in summons issued. When may a summons be the petition or a transcript or true copy issued? This query is answered by the sucthereof, without changes, additions, or cor- ceeding section (section 781, C. P.). By that rections, etc. The appeal is based upon three section the issuance of a summons is made assignments of error. We need determine directly contingent upon the second affirmabut one, i. e.:

tive act required of the justice of the peace, "I. The holding of the lower court that the namely, the indorsement on the complaint complaint in the case of Bailey v. Lawson was setting forth the date on which it was filed. actually filex, and said action duly commenced, It is "at any time within one year therethere being no indorsement upon said complaint after” that "the plaintiff may have summons as required by law."

issued.” The term “thereafter” refers diIt appears that one Bailey had attempted to commence an action in the justice's court rectly to the act of indorsement, and it is of Tonopah township against the appellant, not until after indorsement of the complaint Lawson. The steps taken to commence the by the justice setting forth the date of its action in the justice's court, as disclosed by liling that summons can be issued. A comthe return of the justice in response to the plaint unindorsed by the justice as prescriborder to show cause, appear as follows: An ed by this section cannot constitute a basis instrument entitled a complaint, on which no for the issuance of a summons, but a comfile marks or indorsement of any kind ap- plaint when filed and indorsed as prescribed pear. The instrument is entitled:

by sections 780 and 781 may constitute the "In the Justice's Court of Tonopah Township, basis for the issuance of a summons by the Nye County, Nevada. George L. Bailey, Plain- plaintiff at any time within one year after tiff, v. J. W. Lawson, Defendant. Complaint." indorsement.

The certified copy of the justice's docket It is the contention of respondent, and in filed in the lower court pursuant to the or- that contention he was upheld by the court

Come For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

below, that the issuance of a summons is summons? In answer to this we can call to contingent rather upon the filing of the com our aid no higher authority than the unplaint. The term "filing," as here used, may equivocal language of our statute, and parmean the mere acceptance or receipt of the enthetically let us say, statutes, the manifest instrument by the officer. If it were the in- meaning of which is clear and unconfused, tention of the legislative body to have the require no construction. issuance of summons contingent upon the act Section 5722, Rev. Laws, says: of filing, that is, contingent upon the mere “An action in a justice's court is commenced receipt and acceptance of the complaint by by filing a complaint and the issuance of a sum

mons thereon.' the justice, it would have been a simple matter to have transferred the clause "and at Let us say, for argument's sake, that the any time within one year thereafter the mere act of delivery by the plaintiff to the plaintiff may have summons issued” and at- justice constituted filing. Could summons tached the same to section 780 rather than issue from the justice without further affirm. to section 781. We must read these sections ative action on his part? The very next secas we find them. They are mandatory and tion of the Code answers this in the negalimiting, in that they prescribe, limit, and tive. fix the manner in which an action may be

"The court must indorse on the complaint," commenced in the justice's court.

says section 5723,


thereafter the plaintiff may have summons is By the term “must," as used in section sued.” 781, the act of indorsement by the justice

The expression here used by the Code of the peace is made mandatory, and the act makes the issuance of summons a thing that of issuance of summons can only follow the may be performed in futuro (Ercanbrack v. performance of this required function. No

Faris, 10 Idaho, 584, 79 Pac. 817) determinasummons can be issued by the justice until tive by the act of indorsement on the part "thereafter." In this instance there being of the justice. The period of time within no indorsement upon the complaint setting which the summons may issue takes its inforth the date upon which it was filed, no ception in the act of indorsement by the jussummons recognized by our procedure could

tice. It is limited to "any time within one issue, and the instrument purporting to be

year thereafter." a summons in this instance was a nullity.

We are referred to the case of Wilkinson No summons having issued, no action was

V. Elliott, 43 Kan. 590, 23 Pac. 614, 19 Am. commenced as prescribed by section 780.

St. Rep. 158. If the case were at all apOur Practice Act prescribes the mode of plicable, the expression of the Supreme Court commencing suits in justice's courts and of Kansas found therein might go to reinlays the foundation for jurisdiction. A summons to have force and effect must issue emphatically declared tüat the handing of

force our position here taken. There it was by virtue of the provisions of the statute, the petition to the clerk of a court of recand when it fails in this it fails in every-ord and his mere indorsement thereon was thing. Dupuy v. Shear, 29 Cal. 238.

not a sufficient filing to comply with the statWe are referred to the cases of Hook v.

ute in language as follows: Fenner, 18 Colo. 283, 32 Pac. 614, 36 Am. St.

“When the petition had been filed, the action Rep. 277, and Hilts v. Hilts, 43 Or. 162, 72 is pending, so as to charge third persons with Pac 697. It is contended that these authori- notice of its pendency, and while pending no ties are of assistance in arriving at a conclu- interest can be acquired by third persons in the sion in this matter. These cases, together title; but such notice shall be of no avail unless

subject-matter thereof as against the plaintiff's with many other authorities that might be the summons be served, or the first publication cited, are expressive of a rule adhered to by made, within 60 days after the filing of the pe a most eminent line, determinative only of tition.” Comp. Laws 1885, § 3880 (Civil Code,

8 81). the question as to when an instrument is considered as filed. We say a line of au The requirements of our statute fixing the thorities, because courts have differed widely manner and prescribing the time within in expressing their views as to the question; which and designating an act after which · and even were such authority applicable here, summons might issue are, in our judgment, it would be a matter of very careful inves- reasonable in conformity with the fact that tigation before we should align ourselves justice's courts in this state are not courts with any of the diversified contentions. of record, but, on the contrary, are tribunals

A consideration of the discussions on the the jurisdiction of which depends upon afquestion as to when an instrument is actual-firmative acts in substantial conformity with ly filed only serves to lead us away from the the statutory prescription. vital matter in the case at bar. The ques The order here appealed from must be retion here for determination rather is: When, versed for another and equally potential reaunder our Code provision, could summons son. Lawson, who was sought to be made issue from a justice's court? Does the mere defendant in the proceedings in the justice's act of filing, assuming that filing is accom- court, was a resident of California. An af. plished by delivery alone, constitute the sole fidavit of nonresidence was filed by the plain

the justice for service of summons by publi-1 I do not think there is anything in section cation. The plaintiff in the matter sought to 5723, Revised Laws, justifying a different make personal service upon the defendant, view. I take it that the language used in Lawson. An affidavit of service was made the section mentioned, wherein it is providby party, resident of California, in whiched that the date upon which the complaint affidavit he recites as to his being “over the "was filed” be indorsed on the complaint, exage of 18 years." Section 5732 of our Repressly recognizes the filing as an act prevised Laws (section 790, C. P.) prescribes : cedent to the indorsement, and that the word

"Summons may be served by a sheriff or con- "thereafter,” used in the section mentioned, stable of any of the counties of this state or refers to the actual date of filing, and not to by any other person of the age of twenty-one the date of the clerical act of making the inyears or over, not a party to the action," etc.

dorsement upon the complaint. Our views in this respect may be expressed in the language of Mr. Justice Talbot in

SANDERS, J., did not participate. his concurring opinion in the case of Sherwin v. Sherwin, 33 Nev. 325, 111 Pac. 286,

(41 Nev. 305) 122 Pac. 481, Ann. Cas. 1914A, 108, where, referring to the identical question, and sup- FORSYTH v. HEWARD et al. (No. 2266.) porting his conclusion by California deci- (Supreme Court of Nevada. Jan. 23, 1918.) sions pat on the subject (Maynard v. Mac. 1. WITNESSES Om 160(2)—COMPETENCY-STATCrellish, 57 Cal. 355; Horton v. Gallardo, UTE. 88 Cal, 581, 26 Pac. 375), he says:

Under Rev. Laws, $ 5419, declaring that no

person shall be allowed to testify when the other "When the service is made out of the state, party to the transaction is dead, or when the it may be proved by affidavit of any person opposite party to the action or the person for showing that he has served the summons, and whose immediate benefit the action or proceedthat at the time of such service he was a citi; ing is prosecuted or defended, is the representazen of the United States over 21 years of age.

tive of a deceased person when the facts to be Service of summons out of the state by proven transpired before the death of such deone who fails to meet the requirements of tiff who was adopted by the testatrix and her

ceased person, testimony by the mother of plainour statute in this respect is a useless act. husband, in a suit against the testatrix's execuThe affidavit here fails to meet the require- tor to enforce specific performance of alleged ment of our statute; hence proof of service contracts by which plaintiff was to inherit any

property of which testatrix and her husband was wanting in the justice court, accordingly might die possessed, it appearing that testatrix's want of jurisdiction followed, and no valid husband conveyed all his property to her, as to judgment could flow.

matters relative to the alleged agreement tranThe act of the justice of the peace in en- which tended to establish the alleged contract of

spiring before the death of testatrix, all of tering judgment against appellant where no adoption, is inadmissible. action had been commenced and where there 2. WITNESSES Om 160(1)-COMPETENCY-STAThad been no service of summons was in excess of jurisdiction, and certiorari will al- father concerning acts and conduct of testatrix

In such case testimony by plaintiff's own ways lie to review such.

and her husband when they went to his house The order and judgment appealed from are to get plaintiff is also inadmissible under Rev. reversed. The case is remanded to the trial Laws, $ 5419; for it would be a mere evasion court, with instructions to that court to is- as to transactions with deceased persons is in

to allow testimony as to acts when testimony sue its order quashing the proceedings in the admissible. justice's court pursuant to the prayer of ap- 3. Wills Om58(2) — AGREEMENT TO MAKE pellant in his petition for writ of certiorari.


In a suit to specifically enforce a contract that plaintiff who was adopted by testatrix and

her husband should inherit whatever property COLEMAN, J. (concurring). I concur in they might die possessed of, evidence held inthe order reversing the judgment of the trial sufficient to show more ihan the adoption of court, and in that portion of the foregoing to the inheriting of property.

plaintiff, and not to establish the agreement as opinion relating to the alleged service of 4. ADOPTION 21 EFFECT RIGHT summons, but am unable to approve of the ADOPTED CHILD. views expressed relative to the filing of the



An adopted child acquires no greater right complaint in the justice's court.

of inheritance than a natural child, and the

As a gen- adoption does not deprive the adoptive parent eral proposition, it may be said that a docu- of the right to dispose of his property by will. ment is filed when deposited with and re- 5. SPECIFIC PERFORMANCE 119, 121(1)-- Evceived by the proper officer for filing, and the

IDENCE-SUFFICIENCY. necessary fees paid, if demanded. Hook v. tract whereby he was to inherit the property of

One seeking specific performance of a conFenner, 18 Colo. 283, 32 Pac. 614, 36 Am. others has the burden of proof, and specific perSt. Rep. 277; Hilts v. Hilts, 43 Or. 162, 72 formance will be denied unless the contract is Pac. 697; Wilkonson v. Elliott, 43 Kan. 50, established by clear and satisfactory evidence. 23 Pac. 614, 19 Am. St. Rep. 158; Manhat Appeal from District Court, Washoe Countan Co. v. Laimbeer, 108 N. Y. 578, 15 N. E. ty; J. Emmett Walsh, Judge. 712; Beebe v. Morrell, 76 Mich. 114, 42 N. Action by Alexander C. Forsyth against W. 1119, 15 Am. St. Rep. 288; 19 Cyc. 529. J. H. Heward, as executor of the estate of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Jane Forsyth, deceased, and others. From ja deceased person, it was held that the fol-
a judgment for plaintiff, defendants appeal. lowing elements must concur and be appar-
Reversed, and remanded for new trial. ent:
James T. Boyd and Ayres & Gardiner, all which the statute renders incompetent; second,

"First, the witness must belong to a class of Reno, for appellants. Dixon & Miller and the party against whom the testimony is to be William L. Hacker, all of Reno, for respond- offered must belong to a class protected by the ent.

statute; and, third, the testimony itself must

be of a nature forbidden by the statute.” COLEMAN, J. Plaintiff by this action The question, then, is: Does the testi. seeks the specific performance of two alleged mony admitted in evidence violate the rule contracts. The complaint alleges that the enunciated? Plaintiff's mother was permitplaintiff is the issue of the marriage of Wm. ted to testify to numerous circumstances T. Bacon and Harriet G. Bacon, now Har- which transpired prior to and after the riet G. Murdock; that two agreements of plaintiff went to live with the Forsyths, in adoption were entered into whereby it was which the Forsyths played a part, all tendunderstood and agreed that John T. Forsything to establish the alleged contract of adopand his wife, Jane Forsyth, "would adopt tion, and among such testimony was evidence him (plaintiff] as their own son, and prom- | to the effect that, at the request of the Forised and agreed that on their deaths he syths, she went with them and the plaintiff would become entitled to and inherit and have to a notary public to have adoption papers all of the property of which they might be prepared, and was informed by the notary possessed at the time of their deaths"; that that such papers would have to be prepared in pursuance of such agreement plaintiff was by another. We think the court erred in not given to the said Forsyths, and that they sustaining an objection to this testimony, gave him their name, reared and educated for the reason that the witness testified him; that said Forsyths made one or more squarely to a circumstance growing out of futile attempts to adopt plaintiff; that John an alleged request of the deceased parties, Forsyth died in 1907, but prior to his death who are dead and cannot give testimony conveyed his property to his wife, Jane For- concerning the same, or as to that which it syth, who died in 1913.

is contended transpired as a consequence The answer denies all of the material al. thereof. legations pertaining to an agreement to adopt [2] Error is also assigned to the ruling of and of plaintiff's right to take the property the court upon an objection to certain testiof the Forsyths, and pleads affirmatively that mony given by the natural father of the Jane Forsyth, prior to her death, made and plaintiff concerning certain acts and conduct executed her last will and testament, where- of the Forsyths when they went to the house by she disposed of her property to parties of the witness to get plaintiff', tending to esother than the plaintiff, and nominated and tablish plaintiff's cause of action. Testiappointed the defendant Heward as executor mony of this character is as much a violaof her estate; that said will had been ad-tion of the letter and spirit of the statute as mitted to probate; and that the defendant to permit testimony of what was said by the Heward had qualified as executor thereof. deceased parties. It is an old saying that,

[1] It is insisted on behalf of defendants “Actions speak louder than words,” and it that the court erred in permitting the nat- was clearly error on the part of the court to ural mother of the plaintiff to testify in his permit one of the parties to the alleged conbehalf relative to certain matters and things tract to testify to anything which transpired which transpired before the death of John between the parties tending to establish and Jane Forsyth and pertaining to the con- plaintiff's cause of action, in view of the tract sought to be established by the plain- fact that the other parties were dead. tiff, upon the ground that such testimony

[3] It is next contended that the evidence should have been excluded in pursuance of does not sustain the judgment. From a caresection 5419, Revised Laws, which provides: ful reading of the record we are of the view

"No person shall be allowed to testify: that the trial judge, in his written opinion,

"1. When the other party to the transaction is stated the evidence as strongly in favor of the dead.

**2. When the opposite party to the action, plaintiff as it will permit, and hence we quote or the person for whose immediate benefit the at length all that is contained in that opinaction or proceeding is prosecuted or defended, ion relative to the evidence in the case. It is the representative of a deceased person, when reads: the facts to be proven transpired before the death of such deceased person.'

“In September, 1895, when the first contract

was entered into, as alleged in the amended This court, in Torp v. Clemons, 37 Nev. complaint, the custody of the plaintiff was sur483, 142 Pac. 1115, in considering a very sim- rendered by his mother to John F. Forsyth and ilar question, laid down what we believe to Jane Forsyth, his wife, in whose custody he

remained continuously, except during the period be a sound doctrine, and one which must he was with his father. It was while he was guide us in determining the question now be in the custody of his father in 1890, at Reno, fore us.

In that case, in determining the Nev., the second alleged contract was entered propriety of admitting testimony of a wit- rendered by his father to John F. Forsyth and

into, and the custody of the plaintiff was sur

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