Nevada Reports 1929-1930 (52 Nev.).pdf

52 Nev. 1, 1 (1929) Chartz v. Cardelli

CHARTZ v. CARDELLI

No. 2841

August 1, 1929. 279 P. 761.

1. MortgagesGood Faith Mortgage to Secure Future Debts Is Valid. Mortgage made in good faith for purpose of securing future debts is valid.

2. MortgagesValidity of Good Faith Mortgage to Secure Future Debts Is Not Affected byFact Future Advances Are To Be Made in Services, Instead of Money. Validity of mortgage made in good faith for purpose of securing future debts is not affected by factthat future advances are to be made in services, instead of money.

3. MortgagesWhere Mortgage Had Performed Services as Bound in Settlement of EstatePrior to Time Second Incumbrance Attached, His Actual Notice Thereof Did NotRemove Security for Advances and Services. Where mortgagee was obligated by mortgage to make advances and perform services of attorneyrequired in settlement of estate, and services had nearly all been performed prior to date secondincumbrance attached, mortgagee's actual notice or knowledge of subsequent mortgage did not haveeffect of taking from him security for advances and services he was compelled by contract to make andperform.

4. MortgagesWhere it Is Optional with Mortgagee to Make Future Advances, Those MadeAfter Notice of Subsequent Incumbrance Are Not Superior Thereto. Where it is entirely optional with mortgagee whether to make future advances or not, advances madeafter notice of subsequent incumbrance are not superior thereto.

5. MortgagesJunior Incumbrancer Acquires Lien on Property as it then Is. Junior incumbrancer acquires lien on property as it is at time the incumbrance attaches.

6. MortgagesPrior Mortgagee, Having Option to Make Advances, Cannot KnowinglyPrejudice Rights of Subsequent Incumbrancer by Adding Voluntarily to OwnIncumbrance. As it is optional with prior mortgagee whether he will make advances, he is not allowed knowingly toprejudice rights of subsequent incumbrancer, or defeat or impair his lien, by adding voluntarily to ownincumbrance.

7. MortgagesLien of Mortgagee for Services Performed After Notice of SubsequentMortgage Was Inferior Thereto, where Services Were Unnecessary Under FirstMortgage. Where mortgagee, obligated by mortgage to make advances and perform services of attorney insettlement of estate, after notice of subsequent mortgage of another, performed services


which he was not bound by his prior mortgage to perform, lien of second mortgage was superior to that offirst as to amount of unnecessary services.

C.J.-CYC. REFERENCES Mortgages41 C.J. sec. 362, p. 462, n. 30: sec. 428, p. 501, n. 1; sec. 467, p. 527, n. 22; sec. 468, p. 527, n.26.

Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.

Suit by Alfred Chartz against Carmelinda Cardelli and another, in which the nameddefendant filed a cross-complaint. Decree adverse to plaintiff, and he appeals. Caseremanded for modification of judgment and decree.

John M. Chartz, for Appellant: A mortgage may be made as well to secure future advances or indebtedness as for apresent debt or liability, and if executed in good faith it will be a valid security, in the absenceof statutory provisions to the contrary. 41 C.J., sec. 362, also note a. In the recent case of Machado v. Bank of Italy, 228 P. 369, the Supreme Court ofCalifornia held a parol agreement to make advances binding and obligatory upon themortgagee, and that the advances so made took precedence over a junior mortgage where thejunior mortgagee had knowledge of the first mortgage, although the advances were madesubsequent to the execution and delivery of the second mortgage. (See paragraph 2 of thesyllabus.) See, also, Tapia v. Demartini, 77 Cal. 387; Hendon v. Morris, 110 Ala. 113; Joneson Mortgages (8th ed.), sec. 457. A mortgage for obligatory advances is a lien from its execution. If by the terms of themortgage an obligation is imposed upon the mortgagee to make the advances the mortgagewill remain security for all the advances he is required to make, although other incumbrancesmay be put upon the property before they are made, and he has knowledge of suchincumbrances. Jones on Mortgages (8th ed.), sec. 454. The decisions


are in substantial agreement on this point. The case of Capron v. Strought, 11 Nev. 304, citedby the lower court, agrees.

Green & Lunsford, for Respondent:

This is a case of equitable cognizance; equity will recognize no right of a mortgagee tomake future advances when such advances are not made compulsory by the terms of therecorded mortgage and of which the junior mortgagee has no notice, and to the prejudice,impairment and destruction of a junior mortgagee's security, and especially when the seniormortgagee has actual notice of the intervening mortgage. Fraud may exist in the concealmentof facts as well as misrepresentation of facts. 26 C.J. 1071, sec. 14. In an early case which seems somewhat to have standardized the doctrine of mortgages tosecure future advances, Ackerman v. Hunsicker, 85 N.Y. 43, 39 Am. Rep. 621, it was heldthat a mortgage to secure future advances was invalid as against a subsequent judgment. The general principle governing the priority of liens as between one making futureadvances and a second mortgagee rests upon the premise that the security under themortgage for future advances takes rank only from the date of the advances; and each advancemade is subject to the lien of all incumbrances that are duly recorded at the time it is made.Brinkmeyer v. Browneller, 55 Ind. 487; Peabody v. Patton, 2 Pick. (Mass.) 517; Orvis v.Newall, 17 Conn. 97; Schiffer and Nephew v. Fagin, 51 Ala. 335; Haines v. Beach, 3 JohnsCh. (N.Y.) 459; Marcus v. Robinson, 74 Atl. 550; Farwell v. Lewis (Conn.), 14 Atl. 931. The prevailing rule as to future advances, which is in accordance with common sense, isclearly stated in 41 C.J. 527, sec. 468. See, also, 41 C.J. 581, sec. 543; note to Straeffer v.Rodman, 146 Ky. 1, 141, S.W. 742; Merchants State Bank v. Tufts, 14 N.D. 238, 103 N.W.760, 116 Am. St. Rep. 682; 41 C.J. 502, bottom of column 2; W.P. Fuller & Co. v. McClure(Cal.), 191


P. 1027, at 1030; 19 R.C.L. 429, sec. 211; Jones on Mortgages, vol. 1, sec. 368, p. 512. There seems to be no dissent from the rule in the Unite States, and no respectable authorityhave we found to the contrary, that where the senior mortgagee is not bound to make thefuture advances and had notice of the junior mortgage, he will not be protected by a priorityfor such future advances over the intermediate mortgagee. See Schmidt v. Zahrndt (Ind.), 47N.E. 335; Omaha Coal & Lime Co. v. Suess (Neb.), 74 N.W. 620: Scheurer v. Brown, 73N.W. 877; Union Natl. Bank v. Milburn & Stoddard Co., 73 N.W. 527 (N.D.). A further principle is that the terms of a mortgage cannot be extended by construction soas to include indebtedness not contemplated at the time of its execution. 19 R.C.L. 165; 19R.C.L. 393, sec. 167. The creditor cannot apply a payment so as to be inequitable and unjust to the debtor. (30Cyc. 1235-1236). As a fortiori, he cannot apply the payment so that it would be inequitable toa junior lienor. 30 Cyc. 1237, 1239, 1240, 1243, 1248.

OPINION

By the Court, Sanders, J.:

The appellant, Alfred Chartz, and the respondent, Carmelinda Cardelli, each sought adecree for the foreclosure of their separate mortgages upon the same land. The appellant wasthe first mortgagee, and the respondent the second. We shall refer to the parties here asplaintiff and defendant. The plaintiff sued his mortgagor, Tancredi Cardelli, for theforeclosure of his mortgage, and made Carmelinda Cardelli a party defendant, because of hersubsequent mortgage. The mortgagor defended the suit. The defendant Carmelinda Cardellialso defended, and by way of cross-complaint sought the foreclosure of her mortgage. After afull hearing upon the pleadings and evidence, the plaintiff was adjudged and decreed a firstmortgage lien upon the property for $3,000, the defendant a second mortgage !


lien thereon for $21,000, and the plaintiff was adjudged and decreed a third mortgage lien forthe sum of $2,000 and for $435. The plaintiff appeals from that portion of the decree whichadjudged him a third lien upon the property for the sums stated. Counsel for the defendant state in their brief that both mortgagees appeal. The record doesnot support the statement. The only perfected appeal in this case is that of plaintiff, and weshall confine our opinion to the question of whether the chancellor was wrong in holding thatthe defendant, as second mortgagee, had a lien superior to that of plaintiff, as first mortgagee,for said sums of $2,000 and $435. The pertinent facts are these: Orlando Cardelli and Tancredi Cardelli owned and operated as tenants in common thatcertain real estate known as the Cardelli Ranch, situate near Dayton, in Lyon County, Nevada.In 1918, Orlando Cardelli died testate, seized and possessed of his undivided one-half interestin the property, and left surviving him his widow, Carmelinda Cardelli. By his will he devisedone-third of his estate to his widow, one-third to Tancredi Cardelli, his brother, and one-thirdto the children of said Tancredi Cardelli. Under his will he appointed and nominated TancrediCardelli as executor, who, over the protests and objections of the widow, qualified asexecutor. In the course of the administration of the estate, litigation arose betweenCarmelinda Cardelli and Tancredi Cardelli. In this litigation Tancredi Cardelli wasrepresented by his attorney, Alfred Chartz, and Carmelinda Cardelli was represented by herattorney, the late C.E. Mack. When the will had been admitted to probate, the executorborrowed from Alfred Chartz, his attorney, the sum of $3,000, and to secure its paymentexecuted a mortgage upon his undivided one-half interest in the property in controversy. Upon the trial of the case, the plaintiff testified that, contemporaneously with theexecution of his mortgage and as part consideration therefor, he verbally agreed to advancehis mortgagor the money required in the "#

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settlement of the estate of Orlando Cardelli, deceased, and if, upon the closing of said estate,his mortgagor did not have sufficient funds to pay his fees, he would accept his note therefor,which he did in the sum of $5,000, dated on May 15, 1920, payable on or before three yearsfrom date. The court found that this note was for legal services performed by plaintiff at thespecial instance and request of his mortgagor, in the matter of the settlement of the estate ofOrlando Cardelli, deceased, and in effect found that there was a balance due upon said note of$2,000. The court further found that between August, 1924, and August, 1926, TancrediCardelli became indebted to plaintiff for services as his attorney in the sum of $435, whichservices were rendered for the protection of the mortgage security and in and about thebusiness of his mortgagor. It was further found that prior to February 13, 1920, nearly all theservices in the matter of the settlement of the estate of Orlando Cardelli has been performed,and that on February 13, 1920, Tancredi Cardelli and his wife executed and delivered to thedefendant, Carmelinda Cardelli, a mortgage upon the property in controversy to secure thepayment of their joint note for $21,000, and that thereafter, to wit, on May 27, 1921, TancrediCardelli paid Alfred Chartz $3,000, which sum Chartz credited upon the principal of his notefor $5,000, dated May 15, 1920. The defendant, Carmelinda Cardelli, in her answer and by way of cross-complaint,asserted that the plaintiff should be estopped, debarred, and precluded from setting up orclaiming any lien prior or superior to that of the defendant for the reasons, first, that at thetime of the execution and delivery of her mortgage, plaintiff, as attorney for TancrediCardelli, advised the defendant to accept and take a second mortgage upon the property forthe conveyance of all of her right, title, and interest therein; that the plaintiff then and thererepresented to the defendant that his mortgage for $3,000 was the only existing lien orincumbrance upon the property, which sum of $3,000 would shortly be paid, and plaintiff'smortgage be discharged of record; that plaintiff participated &


in the transactions culminating in the conveyance of defendant's interest in the property, andthat plaintiff did not inform the defendant that he claimed a lien upon the property for anyindebtedness other than that for the sum of $3,000. Though the trial court held that plaintiffwas not estopped on the ground of fraud, as pleaded in the cross-complaint of CarmelindaCardelli, it held that he was estopped from asserting the balance of $2,000 due on the $5,000

note as a first mortgage lien, basing his holding on a ground not pleaded by the defendant,Carmelinda. The reason given for so holding was that the indebtedness, evidenced by the$5,000 note, was for the services performed in the matter of the estate of Orlando Cardelli,deceased, and could have been paid out of that estate, and hence plaintiff should be estoppedfrom asserting it as a claim against Tancredi Cardelli of superior equity to that of CarmelindaCardelli. What matters it to Carmelinda? The estate was saved the $5,000. This is notquestioned. To now say that a claim, arising out of a contact entered into long prior to theexistence of the indebtedness to Carmelinda Cardelli, should be subject to a subsequentclaim, for no other reason than that given, would be inequitable. The trial court found the fact to be that plaintiff's mortgage was given to secure an existingdebt of $3,000, payable from the mortgagor to the mortgagee, and, in addition thereto, thatthe mortgage provided that it was given to secure any further advances which the mortgageemight make to the mortgagor, and any indebtedness which might thereafter become payablefrom the mortgagor to the mortgagee, and to secure all other sums then owing or which mightthereafter become owing from the mortgagor to the mortgagee. 1-3. Mortgages are but contracts, and it is the law that a mortgage made in good faith, forthe purpose of securing future debts, is valid, and that its validity is not affected by the factthat the future advances are to be made in services, instead of money. Jones on Mortgages(8th ed.), sec. 448. The trial court having construed plaintiff's mortgage to be one given tosecure an '

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existing debt and any future indebtedness payable from the mortgagor to the mortgagee, andwith fraud out of the case, the matter for decision tersely is this: When does a subsequentmortgage to secure a specific debt take precedence over a prior mortgage given to secure apresent debt and future advances? The advances intended to be secured by the first mortgageare identified by the plaintiff, as well as by the findings of fact of the trial court. According toplaintiff's own testimony, he was obligated by his mortgage to make advances and performthe services required in the matter of the settlement of said estate. The court having found thatthe services had nearly all been performed prior to the date the defendant's secondincumbrance attached, we are of opinion that it would be manifestly unsound to hold thatplaintiff's actual notice or knowledge of the defendant's subsequent mortgage had the effect oftaking from him the security for advances and services he was compelled by his contract tomake and perform. Atkinson v. Foote, 44 Cal. App. 149, 186 P. 831; 41 C.J. 526, 527; Joneson Mortgages, sec. 454. Both upon principle and authority, we conclude that the chancellorwas wrong in holding that the defendant, as second mortgagee, had a lien superior to that ofplaintiff's first mortgage as to the sum of $2,000.

4-7. But with respect to plaintiff's contention that he was entitled to a prior and superiorlien to that of the defendant for $435 for services performed at the special instance andrequest of his mortgagor after notice of the defendant's second mortgage we are not in accord.It may be conceded that the services performed subsequent to plaintiff's notice of thedefendant's mortgage benefited the mortgage security, and was intended to be covered by themortgage; but the instrument does not contain a clause making it obligatory upon themortgagee to act as attorney in and about the business of his mortgage. The unusual feature ofthe instrument is that it is a contract between an attorney and client. As we interpret theevidence, it was entirely optional with plaintiff whether he would perform the services "#&


or not after the estate of Orlando Cardelli had been closed and defendant's lien had attached.It is well settled that, where it is entirely optional with the mortgagee whether to make futureadvances or not, advances made after notice of a subsequent incumbrance are not superior tothat of such subsequent incumbrance. The principle of the decisions is that such juniorincumbrancer acquires a lien upon the property as it then is, and, as it is optional with theprior mortgagee whether he will make the advances,he is not allowed knowingly to prejudicethe rights of the subsequent incumbrancer, or defeat or impair his lien, by adding voluntarilyto his own incumbrance. Atkinson v. Foote, supra; Jones on Mortgages, sec. 453; 41 C.J. 526.Upon principle and authority we conclude that the chancellor was right in holding that thelien of the second mortgage was superior to that of the first, as to the sum of $435, though thechancellor assigned a wrong reason for so holding. For the reasons given, it is ordered that the case be remanded to the trial court, and that thejudgment and decree heretofore entered be modified, so as to constitute the balance of $2,000due upon the $5,000 note a first lien.

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52 Nev. 10, 10 (1929) State v. Mills

STATE v. MILLS

No. 2866

August 15, 1929. 279 P. 759.

1. Indictment and InformationGenerally Indictment or Information Charging Offense inLanguage of Statute Is Sufficient.

While common-law rule requiring statutory offense to be charged in exact language of statute definingit has been relaxed by criminal practice act, sec. 208, as amended by Stats. 1919, c. 232, providing thatwords used in statute defining public offense need not be strictly pursued, but other words conveyingsame meaning may be used, generally indictment or information charging offense in language of statute issufficient whether offense is one which was such at common law or statutory offense.

2. Indictment and InformationIndictment or Information Charging Offense in Language ofStatute Is Not Sufficient where Statute Does Not State Essential Elements. Where statute defining offense does not state its essential elements, indictment or informationcharging offense in language of statute is not sufficient.

3. Indictment and InformationDefendant Is Entitled to Have Essential and Material FactsConstituting Offense Charged Stated in Indictment or Information. Under criminal practice act, sec. 200, as amended by Stats. 1919, c. 232, providing that indictment orinformation must contain statement of acts constituting offense in ordinary and concise language and insuch manner as to enable person of common understanding to know what is intended, accused is entitledto have essential and material facts constituting offense charged against him stated in indictment orinformation.

4. AutomobilesInformation Charging Offense of Injuring Person by Driving Automobilewhile Intoxicated Held to State Facts Sufficient to Constitute Public Offense. Information charging offense of injuring person by driving automobile while intoxicated, defined byStats. 1925, c. 166, secs. 1, 3, charging operation of motor vehicle in reckless and dangerous manner,which included language of statute, held sufficient, though not stating acts constituting driving in recklessand dangerous manner, since particular manner constituting reckless driving is merely evidence ofultimate facts proscribed.

5. StatutesSubject of Act Defining Offense of Injuring Another or Causing Death WhileDriving or Operating Vehicle Under Influence of Intoxicating Liquor Held EmbracedWithin Title. Stats. 1925, c. 166, sec. 3, defining offense of injuring person or causing death by operation of anyvehicle while under influence of intoxicating liquor, held embraced within title of act to regulate trafficon highway and provide punishment for '

52 Nev. 10, 11 (1929) State v. Mills

violation thereof, since acts of intoxicated motor vehicle drivers of character proscribed are certainlydetrimental to traffic on highways.

C.J.-CYC. REFERENCES Indictments and Information31 C.J. sec. 170, p. 650, n. 65; sec. 260, p. 708, n. 29; p. 709, n. 30. Motor Vehicles42 C.J. sec. 1306, p. 1333, n. 24. Statutes36 Cyc. p. 1035, n. 52.

Appeal from Tenth Judicial District Court, Clark County; Wm. E. Orr, Judge.

C.E. Mills was convicted of injuring a person by driving an automobile while intoxicated,and he appeals. Affirmed.

Frame & Raffeto and T.A. Wells, for Appellant: It will be observed from an analysis of section 3, chapter 166, p. 254, Stats. 1925, that thegist of the offense denounced therein is the omission or commission of some act in violationof the traffic statute, which results in the death or injury of some other person. It is essentialunder the provisions of section 3 that, in addition to the fact that the driver is intoxicated, hebe guilty of some act or omission either forbidden or enjoined by law, which act or omissioncontrary to law caused the injury. The fact that such act or omission was caused by theintoxication of the driver aggravates the offense, so that that which if committed by a normalperson would only be a misdemeanor becomes a felony when committed by an intoxicatedperson. In an information charging an offense under section 3 it is therefore essential todistinctly and positively allege some act or omission prohibited or enjoined by the traffic lawwhich caused the injury and which was caused by the intoxication of the defendant. It is notsufficient to use the mere designation of reckless driving or dangerous driving withoutalleging the facts which make the same reckless or dangerous. It is necessary for theprosecution in such a case to put its finger on the very act which is alleged to be a violation oflaw, and the section of the law which it is alleged was violated. The statements contained inthe information in this case are merely argumentative

52 Nev. 10, 12 (1929) State v. Mills

and are conclusions either of law or fact, and the information because of this failure isfatally defective and insufficient to support a judgment, and the judgment should be reversed.State v. Dawson, 45 Nev. 255.Appellant further contends that the title of the act, which is as follows: An Act to regulatetraffic on the public highways of this state, to provide punishment for violation thereof, andother matters properly connected therewith, is not broad enough to comply with sec. 17 ofarticle IV of the Constitution of the State of Nevada, which provides that a law shall containbut one general subject, and matters properly connected therewith, and that the same shall beclearly stated in the title. No intimation is given by anything in the title of the act to indicatethat the same deal with or intends to deal with the acts of persons prohibited from driving atall, or to deal with what is not merely a regulation but a prohibited act. We cite in support ofthis contention: State v. Commissioners of Washoe County, 22 Nev. 400; State v. Hallock, 19Nev. 384; State v. George Gibson, 30 Nev. 353. The subject of sec. 3, is neither expressed inthe title nor germane to or connected with the subject of the act, or properly connected withthe matter of regulation, and, we therefore submit, is clearly void.

M.A. Diskin, Attorney-General, Wm. J. Forman, Deputy Attorney-General, and Harley A.Harmon, District Attorney, for Respondent. It will be readily seen that the act or omission of which defendant was guilty in this casewas driving in a dangerous and reckless manner. Such driving is specifically prohibited bysection 1 of the act. As the statute plainly shows, the act prohibited is driving in a recklessmanner or in an other than careful and prudent manner. The cases in this state are uniform in holding that an information or indictment, incharging a statutory offense, may generally follow the statutory language and is then deemedsufficient. See State v. Switzer, 38 Nev. 108; State v. McFarlin, 41 Nev. 486; State v. King,35 Nev. 153. The one exception to this rule is -./'

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52 Nev. 10, 13 (1929) State v. Mills

stated in the case of State v. King, supra. That exception is that, if the statute fails to set forthall of the elements necessary to constitute the offense, an indictment or information chargingthe offense in the language of the statute will be insufficient; and the case of U.S. v.Cruikshank, 23 L. Ed. 588, is quoted with approval. The offense in this case is embraced within the language of the statute. The offense iscomplete when a person, driving in a dangerous and reckless manner while intoxicated,injures another person. Similar statutes are in force in other states, and indictments andinformations similar to the form used in the instant case have been construed by the highestcourts of other states. See State v. Welford, 72 Atl. 396; State v. Miller, 243 P. 73; Ex ParteVon Perhacs, 212 P. 689; People v. Schulz, 197 N.Y.S. 889. The case of State v. Welford,supra, is particularly on all fours with the case at bar. Counsel for defendant urge that act, chapter 166, Stats. 1925, is unconstitutional for thereason that the title is not broad enough to include prohibiting an intoxicated person fromoperating a motor vehicle on highways; that regulation can never amount to prohibition.Regulation of the traffic on highways necessarily involves prohibiting some acts. There couldbe no regulation without some prohibition. Under the doctrine laid down in the cases of In ReCalvo, 50 Nev. 125, and Ex Parte Ah Pah, 34 Nev. 283, it is only necessary for the subjectmatter of an act to be germane to the title. Certainly the prohibiting of intoxicated personsfrom driving or operating motor vehicles so as to endanger life and property is germane to thesubject of regulating traffic on the public highways of this state.

OPINION

By the Court, Ducker, C.J.: This is an appeal from a judgment of conviction of injuring a person while driving an

automobile while intoxicated.

52 Nev. 10, 14 (1929) State v. Mills

Appellant contends that the judgment should be reversed, for the reason that theinformation does not state facts sufficient to constitute a public offense. We will examine this question. The charging part of the information is as follows: * * *That C.E. Mills, on the 21st day of December, A.D. 1928, or thereabouts, and before thefiling of this Information, at and within the county of Clark, State of Nevada, did, then andthere, willfully, unlawfully and feloniously, while under the influence of intoxicating liquor,and by reason of being under the influence of said intoxicating liquor, did drive and operate amotor vehicle, to-wit: an automobile, in, along and upon a public highway in the City of LasVegas, County of Clark, State of Nevada, in a dangerous and reckless manner, and being,then and there, under the influence of intoxicating liquor, and while operating and drivingsaid motor vehicle in a dangerous and reckless manner, did, then and there, strike and collidewith a certain motor vehicle, to-wit: an automobile, owned and operated at the time of saidcollision by Mrs. George Ullom, which act and neglect of duty by said defendant, C.E. Mills,while under the influence of intoxicating liquor, in colliding with and striking said motorvehicle, owned and operated, then and there, by Mrs. George Ullom, did, then and there causegreat bodily injury to the said Mrs. George Ullom, and to those persons, then and there,occupying said motor vehicle, owned and operated by Mrs. George Ullom, to-wit: NormanUllom, Mrs. George Ullom and Bert Nicholson. The statute under which appellant was convicted is chapter 166, Stats. 1925, section 1 ofwhich provides in part as follows: It shall be unlawful for any person or persons to drive oroperate a vehicle of any kind or character in a reckless manner on any street or highway inthis state; or in any other than a careful or prudent manner. Section 3 of said act provides: Any person or persons, while intoxicated, or under theinfluence of intoxicating liquor, who drives or operates a vehicle of any +'

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52 Nev. 10, 15 (1929) State v. Mills

kind, and who, by reason of such intoxication or condition hereinbefore stated, does any actor neglects any duty now or hereafter imposed by law, which act or neglect of duty causes thedeath of, or bodily injury to, any person, shall be punished as for a felony. It is to be observed that the information includes the language of the statute defining and

creating the offense. In an early case decided by this court, it was stated that the words of thestatute creating the offense, or words of similar import, should be used in the indictment.People v. Logan 1 Nev. 110.1. At common law it was necessary to charge a statutory offense in the exact language of thestatute defining it. This strict rule, however, has been relaxed by a provision of our criminalpractice act. State v. Anderson, 3 Nev. 254; section 208, Criminal Practice Act, as amendedby Stats. 1919, p. 417, c. 232. But ordinarily an indictment or information charging theoffense in the language of the statute is sufficient whether the offense is one which was suchat common law or a statutory offense. State v. Anderson, supra; State v. Luhano, 31 Nev.278, 102 P. 260; State v. Switzer, 38 Nev. 108, 145 P. 925; State v. McFarlin, 41 Nev. 486,172 P. 371; State v. King, 35 Nev. 153, 126 P. 880; State v. Raymond, 34 Nev. 198, 117 P.17; 19 Cyc. 1393. 2. An execution to this general rule is made where the statute defining the offense doesnot state its essential elements. State v. King, 35 Nev. 153, 126 P. 880; State v. Dawson, 45Nev. 255, 201 P. 549. 3. A defendant is entitled to have the essential and material facts constituting the offensecharged against him stated in the indictment or information. State v. O'Flaherty, 7 Nev. 153;section 200, Criminal Practice Act, as amended by Stats. 1919, at page 416, c. 232. 4. Appellant contends that the information falls within the exception stated, and istherefore deficient. It is insisted that the particular omission in the information rendering itfatally defective is the failure to state the act or acts of the appellant constituting the

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52 Nev. 10, 16 (1929) State v. Mills

driving of the motor car in a reckless and dangerous manner. We think the allegation in theinformation that the motor vehicle was operated in a reckless and dangerous manner is asufficient allegation of one of the essential elements of this statutory offense. It includes thelanguage of the statute, to wit, in a reckless manner, and is a statement of the ultimate factdenounced by the statute. It is a statement of the general manner of the driving which isprohibited. The particular manner which constitutes reckless driving, whether on the wrongside of the road or at excessive speed, is merely evidence of the ultimate fact proscribed,which evidence need not be stated in an information or indictment. The particular manner inwhich appellant was driving should have been peculiarly within his knowledge, and it istherefore difficult to understand how he could have been misled as to his defense or otherwiseprejudiced by the lack of a more specific statement in the information. The case of State v. Dawson, 45 Nev. 255, 201 P. 549, is cited by appellant, but that caseis readily distinguishable on the facts. In State v. Dawson, the offense sought to be chargedwas an attempt to commit a crime. There was no statement of any of the essential elementsconstituting the offense of an attempt. It was merely charged by its statutory designation.Consequently the information was held to be fatally defective.

5. It is contended that section 3 of the act under which appellant was convicted is void, forthe reason that the subject contained in section 3 relating to the injury of a person by anintoxicated driver, is not included in the title of the act, but is a different subject not properlyconnected therewith. The title of the act reads as follows: An Act to regulate traffic on thehighways of this state, to provide punishment for the violation thereof, and other mattersproperly connected therewith. The subject matter of section 3 is plainly within the purview of this title. Its purpose is notonly punitive, but has to do with the regulation of traffic as well, in

52 Nev. 10, 17 (1929) State v. Mills

that it is calculated to deter the commission of acts denounced by it. Acts of intoxicated motorvehicle drivers of the character prescribed by the section are certainly detrimental to traffic onthe highways of the state. Section 3 is not invalid. In Re Calvo, 50 Nev. 125, 253 P. 671. The judgment is affirmed.

On Petition For Rehearing

September 27, 1929.

Per Curiam: Rehearing denied.

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52 Nev. 17, 17 (1929) State Ex Rel. Baker v. Wichman Et Al.

STATE Ex Rel. BAKER v. WICHMAN Et Al.,County Commissioners

No. 2868

August 29, 1929. 279 P. 937.

1. StatutesWhether Word Used in Statute Is Mandatory or Directory Depends on IntentionGathered Therefrom if Such Intention Can Be Ascertained. Whether word is to be construed as mandatory or directory depends on intention to be gathered fromstatute, if such intention can be ascertained.

2. CountiesResolution of Board of County Commissioners, Purporting to Remove Duly

Elected Chairman of Board, Held Void. Where pursuant to county government act, Stats. 1865, p. 257, sec. 3, as amended by Stats. 1921, p.94, c. 54, and section 5, relating to meetings of the board of county commissioners and providing thatmajority of board shall form quorum for transaction of business, and shall elect one of their number aschairman of board, chairman was elected, resolution purporting to remove chairman was illegal and void,since it was legislative intention that board of county commissioners should organize for period of itsexistence, subject to certain contingencies.

3. Quo WarrantoQuo Warranto Was Not Proper Remedy to Restore Ousted Chairman ofBoard of County Commissioners, Chairmanship Not Constituting Public Office. Chairmanship of board of county commissioners does not constitute public office, but a mereposition, and hence quo warranto was not proper remedy for ousted chairman to pursue to restore him toposition formerly held, where resolution *+


of board illegally removed him from chairmanship, since chairman is not required to take oath, and nosovereign power is intrusted to him.

C.J.-CYC. REFERENCES Counties15 C.J. sec. 101, p. 456, n. 40. Statutes36 Cyc. p. 1157, n. 4.

Quo Warranto by the State on the relation of B.F. Baker, against John H. Wichman andanother, as majority members of the Board of County Commissioners of Mineral County, torestore relator to the position of Chairman of the Board of County Commissioners.Dismissed.

C.C. Ward and Cooke & Stoddard, for Respondents (on demurrer to complaint): At the outset we assert that the office, position or employment, by whatever name it maybe called, of chairman of a board of county commissioners is not a public office within themeaning of that term as used in Rev. Laws of Nevada, sec. 5656, relative to quo warranto. Itis not an office so far as the constitution is concerned, because no such officer or office ismentioned in the constitution. The statute, sec. 1505, merely provides that the board shallelect one of their number as chairman. He takes no official oath, gives no official bond, drawsno salary or other emolument, and has no duty or authority in regard to county government orother sovereign powers of the state, other than those common to all members of the board. Heis merely the presiding officer in the meetings of the board, having some ministerial dutiesincident to signing the minutes. Sec. 1505, Rev. Laws, provides that the records of each day'sproceedings shall be signed by the chairman and the clerk. We say this is a mere clericalduty and not an exercise of power or authority bestowed by the law. A chairman is a name given to the presiding officer of an assembly, convention,

committee, etc. 11 C.J. 226. The great weight of authority holds the term office' to embrace the ideas of tenure,duration, fees, or emoluments and duties. (Citing a long list of cases.) It is

5


held by a great many courts that to be an officer one must be charged by law with thesovereign power of the state. State ex rel. v. Cole, 38 Nev. 215, 148 P. 551-553. See, also,Attorney-General v. Tillinghast (Mass.), 89 N.E. 1060, 17 Ann. Cas. 449; State v. Hawkins(Mont.), 257 P. 411-414; State ex rel. v. Christmas (Miss.), 88 So. 881. The mere fact that by legislative enactment the board is directed to elect one of its numberas presiding officer, of itself indicates nothing as to whether such position is an office or mereemployment. On this point we quote and cite: But not all employments authorized by laware public offices in the sense of the constitution. Patton v. Board (Cal.), 59 P. 702-704, 28Am. St. Rep. 66. The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments,rights and powers, as well as that of duty. Burrill's Law Dictionary. See, also, Georgia etc. Co. v. Gordon (Ga.), 11 S.E. 584; Cochran v. McCleary, 22 Iowa,75; Reynolds v. Baldwin, 1 La. Ann. 162; Brewer v. Kellum (Fla.), 50 So. 581; State v.Kiichli (Minn.), 54 N.W. 1069; 19 L.R.A. 779; Oehler v. St. Paul (Minn.), 219 N.W. 760. Inasmuch as the board can completely and legally function without any chairman or anypresiding officer at all, we say the word shall in sec. 1505 is directory merely, and was sointended by the legislature. The chairman by virtue of his position as such, has no more or greater power to doanything (except sign the minutes) than he would have if he were not chairman. Williams v.Board (Mont.), 72 P. 775; Plumley v. Whiteside County, 164 Ill. App. 621. That statute requires no official oath of office of chairman of the board is stronglysignificant that mere requirement that a presiding officer be elected was not intended ascreating a public office. See State ex. rel. Kendall v. Cole, 38 Nev. 215, 148 P. 551;Baltimore v. Lyman (Md.), 48 Atl. 145, 52 L.R.A. 406, 84 Am. St. Rep. 524; Throop v.Langdon, 40 Mich. 673; Olmstead v. Mayor etc., 42 N.Y.S. 482; Collins v. Hun (N.Y.), 3Hun. 680; Goud v. Portland (Me.), 51 Atl. 820.


The Nevada constitution provides: The tenure of any office not herein provided for may

be declared by law, or when not so declared, such office shall be held during the pleasure ofthe authority making the appointment. (Art 15, sec. 11.) This constitutional provision wasconstrued and applied in the case of Leeper v. Jamison, 32 Nev. 327, 108 P. 1. See, also, thefollowing California cases: Sponogle v. Curnow, 69 P. 255; Higgins v. Cole, 34 P. 678;Briare v. Matthews, 258 P. 939; Patton v. Board, 59 P. 702, 78 Am. St. Rep. 74; People v.Hill, 7 Cal. 97; Smith v. Brown, 59 Cal. 672. Hence, unless sec. 1505 is construed to declare the tenure of the office of chairman of theboard of county commissioners, the demurrer should be sustained.

Thatcher & Woodburn and Green & Lunsford, for Relator: Chairman of a board of county commissioners is a public office within the meaning of sec.5656, Rev. Laws of Nevada. If the chairman is an officer at all, his office partakes of a publiccharacter, and, therefore, he must be a public officer. The office of county commissioner iscreated by the constitution, sec. 26 of art. 4 (Rev. Laws, sec. 284). Rev. Laws, sec. 1501,provides the tenure of office of county commissioners. Sec. 1505, Rev. Laws, provides that:They shall elect one of their members as chairman of the board, and the county clerk shall beclerk thereof. The official duties of the chairman are manifold, as is shown by a mention ofpart of them. Sec. 1505 provides: The record of each days' proceedings of said board shall besigned by the chairman and the clerk. He is chairman of the rabies board (Stats. 1921, sec. 2,p. 230). He has certain duties in regard to public roads (Rev. Laws, sec. 3023). He ischairman of the town board of towns organized under the cities and towns acts, and signs allbonds issued by the town (Rev. Laws, sec. 941). Under the act establishing the MineralCounty power system (Stats. 1921, p. 80) all bonds issued by the power system are requiredto be signed by the chairman of the board of county


commissioners. Under the amendment (Stats. 1925, p. 59) the chairman of the board ofcounty commissioners becomes chairman of the board of management of the power system.The statute of 1929, p. 103, made the chairman of the board of county commissioners generalmanager of the power system with a salary not to exceed an additional thirty dollars permonth. It will be seen that in addition to being an officer under the constitution and laws ofthis state, the chairman performs certain other ex officio duties incidental to his duties ascounty commissioner. County commissioners in practice exercise all of the sovereignty exercised by a county.The chairman of the board exercises all of the duties of county commissioners as well as hisex officio duties, and his position is one of dignity and honor from which he derives certainemoluments. In the case of Fuller v. Miller, 4 P. 175, 32 Kan. 130, in a proceeding in quo warranto, itwas held that a chairman of a board of county commissioners was an officer for the purposesof such proceeding, and in the absence of a qualifying statute the chairman's tenure of office

was from the date of his election until the expiration of his term following the nextsucceeding election. In the case of Clayton v. Green (N.J.), 39 Atl. 667, the statute was held to restrict theremoval of a director of a board of chosen freeholders to cases where he was absent orrefused to act. This case is in point to the extent that it recognized a tenure, and that removalcould be had only upon the grounds specified in the statute. The case of Prichard v. McBride (Ida.), 154 P. 624, was decided under a statute verysimilar to ours, and is more squarely in point upon the question here presented as to tenure ofoffice of chairman of a board of county commissioners than any other case we have been ableto find. The statute did not expressly fix the tenure of office of the chairman, but, like outstatute, it did fix the tenure of office of the commissioners, and the case


clearly holds that the tenure of the office of chairman follows that of his tenure ascommissioner. The opinion of the court in that case sounds very much like what was said inthe Florida case of Brewer v. Kellum, 50 So. 581, but it is urged that this case must bedistinguished because the Idaho statute provides that a chairman must be elected, while ourstatute provides that a chairman shall be elected. It is said the word shall is often used ina permissive sense, and is not always mandatory, but it is equally true that the word shall iseither directory or mandatory as the text in which it is contained by fair construction requires.It is not apparent that the word must in the Idaho statute is any more mandatory than theword shall in the Nevada statute, where both prescribe the duty of the board of countycommissioners to appoint a chairman. The rule that the power to appoint generally carries with it as an incident the power toremove does not apply when a definite term is attached to an office by law * * *. Further ithas been held that the rule is applicable only when the power to appoint is a continuing one.Nocholson v. Thompson, 5 Rob. La. 367; Irving v. Ferguson, 118 Wash. 37, 202 P. 269;Field v. Poe, 3 Ill. 79; Bergen v. Powell, 94 N.Y. 591.

OPINION

By the Court, Coleman, J.: This is a proceeding in quo warranto to restore relator to the position of chairman of theboard of county commissioners of Mineral County. The petition alleges that he was elected amember of the board of county commissioners of said county at the general election in 1926,for the term of four years from the first Monday in January, 1927, and that the respondentswere elected members of said board at the general election in 1928, to take office on the firstMonday in January, 1929; that at the first meeting of said board, on the first Monday inJanuary, 1929, relator was elected chairman of said 0

!6%%

)


board; that at a regular meeting of said board of county commissioners held on the 5th day ofApril, 1929, a resolution was offered and adopted by a majority vote declaring thechairmanship of said board vacant, and thereafter at the same meeting a motion was made andcarried by a majority vote to the effect that the respondent Wichman be the chairman of saidboard. The reason recited for such action was the enactment of a certain statute by thelegislature of Nevada at the session in 1929 (Stats. 1929, c. 70), making the chairman of theboard of county commissioners of Mineral County the manager of the Mineral County powersystem. To the petition a general demurrer was filed. It is the contention of the relator that he was elected chairman for a term of two years; thatsuch chairmanship is a public office; and that the resolution removing him from said positionand the electing of the respondent Wichman was illegal, null, and void; and hence he shouldbe ordered restored to said position of chairman. The election and qualification of membersof the boards of county commissioners of the state, the holding of meetings of the board, andthe like, is controlled by the county government act, Stats. 1865, p. 257 Rev. Laws, sec. 1501et seq., as amended. Section 3 of the act as amended (Stats. 1921, p. 94, c. 54) reads: The meetings of theboard of county commissioners shall be held at the county seats of their respective counties ** *; and provided, that the first meeting of said board in odd-numbered years shall be held onthe first Monday in January. * * * Section 5 of the act as amended (Rev. Laws, sec. 1505), provides: A majority of the boardshall form a quorum for the transaction of business. * * * They shall elect one of their numberas chairman of the board. * * * In case the chairman shall be absent at any meeting of theboard, all documents, records, or papers requiring the signature of the board shall be signedby the members present. Pursuant to the election held in November, 1928, a new board of county commissioners ofMineral County '$7%%


came into existence on the first Monday in January, 1929. According to the allegations of thepetitioner, it organized by electing the relator as chairman. It is the contention of the

respondents that the provisions of section 1505, Rev. Laws, to the effect that the board shallelect one of their members as chairman, is directory merely, and hence the board is at libertyto remove a chairman at pleasure. This contention is based upon the use of shall, instead ofmust, in the section mentioned. 1. Must has often been construed as merely directory (Words and Phrases, First,Second, and Third Series); hence the failure to use that word means but little. As we said inEddy v. State Board of Embalmers, 40 Nev. 329, 163 P. 245, whether a word is to beconstrued as mandatory or directory depends upon the intention to be gathered from thestatute, if such intention can be ascertained. While we think the word shall as used in thesection mentioned, should be construed as mandatory, we think it does not matter in this casewhether or not it is so construed. The history of such bodies in this state is that it has been theuniform custom to elect a chairman at the first meeting of a new board. Orderly procedurerequires that there should be a chairman, since the board has to hear many applications,grievances, and the like, and there must be some one to direct the proceedings. And it is clearthat it was the intention of the legislature that, upon the incoming of a new board, a chairmanshould be elected. It is also clear that it was the intention that such board should organize forthe period of its existence, subject to certain contingencies, not necessary here to enumerate.To take any other views would lead to serious consequences, for, as said in Prichard v.McBride et al., 28 Idaho, 346, 154 P. 624, 625: A construction of the statute to the effectthat the commissioners may, at any or all of their regular meetings, make a change in thechairmanship of the board, would result, in our judgment, in confusion and a lack of thatorderly proceeding on the part of the board in dispatching public business

'5


which is contemplated by the statutes, and which the electors in the county have a right toexpect. While the case of Burgan v. New Jersey Civil Service Comm., 84 N.J. Law, 219, 86 A.929, is not identical in its facts, by analogy it strongly supports the view we have expressed.In that case the court had under construction a question growing out of the employment of asecretary by a county tax board. The court said: A reading of this act makes it manifest that it compels a reorganization of the boardannually, because by force of its provisions one member of the board goes out each year and anew member takes his place. And section 3 of the act provides: Each board shall, uponorganization, elect from among their number a president, and shall have power to employ asecretary, and fix his compensation, which shall in no case be in excess of the amount paid toany member of such board. * * *' The statute clearly implies the employment of a secretary bythe board, for the term of one yearthat is, during the life of the board, which is limited toone yearor otherwise the provision for the organization of the board annually, and the

election from their number (including the new member) of a president, and with power toemploy a secretary, would be rendered senseless. We think that the term of the secretary is asdefinitely fixed by law for one year, by the statute, as if the act had in express terms statedthat the term of employment of the secretary shall be one year. The logical sequence of thisview is that Mr. Smith's term was fixed by law, and was properly filled by the new board. The case of Woolley v. Flock, 92 N.J. Law, 65, 105 A. 489, is to the same effect. 2, 3. We are clearly of the opinion that the resolution purporting to remove the relator aschairman of the board of county commissioners was illegal, null, and void; however, we feelthat these proceedings should be dismissed, since such chairmanship does not constitute apublic office, but a mere position. In State v. Cole, 38 Nev. 215, 148 P. 551, we considered atgreat length *


the question of what constitutes a public office. Counsel point out that the board countycommissioners is authorized by the constitution, and various sections of the statute are calledto our attention which it is claimed support such contention. There is no doubt whatever but that a county commissioner is a public official. But it doesnot follow that the chairmanship of the board constitutes an office. The act which providesfor the election of a chairman does not require that the chairman, as such, shall take an oath,and no sovereign power is intrusted to him. In fact, none of the elements essential to theexistence of an office is expressed in the statute. It is true that statutes subsequently enacted provide that the chairman shall perform certainduties, but they are not incident to the existence of the position, for, if these statutes were allrepealed, the position would still exist. For the reason given, it is ordered that this proceeding be, and it is hereby, dismissed.

____________

52 Nev. 26, 26 (1929) Lindsay v. Lindsay

LINDSAY v. LINDSAY

No. 2783

September 5, 1929. 280 P. 95.

1. JudgmentCourt Has Inherent Power to Remove Ambiguity in Judgment or Decree, orCorrect Clerical or Formal Error at Any Time. Court has inherent power, independent of statute, to remove any ambiguity in judgment or decree, or

to correct clerical or formal error at any time.2. DivorceDecree Providing that Husband Pay for Children's Support, Excepting Education

Costs, Held Not Ambiguous so as to Require Court to Construe Its Meaning. Decree for divorce, providing that defendant husband pay certain sums in equal monthly installmentsfor support and maintenance of children to certain dates, excepting cost of their education, and providingthat plaintiff have custody of children during term of school year and that defendant have custody of themduring certain other terms, held not ambiguous as to terms for support, maintenance, and education, andtherefore forming no basis for court to construe its meaning on motion of defendant.


3. DivorceOrder Altering Divorce Decree by Reducing Payments for Children's SupportHeld Unauthorized, where Motion to Construe Decree and Order Were Not MadeWithin Six Months. Where order of court altered decree for divorce in substantial way by reducing amount whichdefendant husband was required to pay wife for support and maintenance of minor children, changeswere unauthorized under rule 45 of district court, requiring notice to adverse party within six months,where motion for construction of decree and order were not made within six months after judgment wasrendered.

4. DivorceIt Cannot Be Presumed that Court Decreeing that Husband Pay for Children'sSupport, Excepting Education, Intended Support To Be Considered Part of EducationCosts. Where decree for divorce provided that husband pay to wife certain sums for support andmaintenance of minor children, excepting costs of education, it is not to be presumed that court, in itsdecree, intended support to be considered as part of cost of education, and therefore to be deducted frompayments when children were in custody of father.

C.J.-CYC. REFERENCES Divorce19 C.J. sec. 818, p. 357, n. 34. Judgments34 C.J. sec. 450, p. 229, n. 83; sec. 456, p. 236, n. 4.

Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Action by Helen Minor Lindsay against Gordon Inglis Lindsay. Decree for plaintiff. Froman order construing the decree, plaintiff appeals. Order reversed with directions.

Cooke & Stoddard, for Appellant: The decree sought to be construed and modified was entered on March 22, 1924. Thetrial court did not retain jurisdiction by providing in any manner for future adjustment ormodification of the alimony allowed plaintiff or of the sums ordered paid by defendant toplaintiff for the support and maintenance of the two minor children. It was therefore withoutjurisdiction to entertain a motion on February 2, 1927, to construe or in any manner modify it.See District Court Rule XLV. The general rule that a court has no power to amend a judgment after the expiration of the

term at which it was rendered, or after expiration of the statutory period


of limitation, is so well established that but few cases will be cited in relation thereto. 34C.J. 232; State v. Fourth District Court, 16 Nev. 371; Sweeney v. Sweeney (Nev.), 179 P.638; Daniels v. Daniels, 12 Nev. 118.In the instant case the order construing the former judgment is in effect and in fact an ordermodifying the former judgment and reducing the amount formerly required to be paid byrespondent to plaintiff. We submit that the decree entered by the trial court on March 22, 1924, is not in any wayambiguous or obscure, and is not susceptible of any construction that can either reduce orenlarge the amount ordered to be paid by respondent to appellant. It appears withoutcontradiction that after the entry of the judgment on March 22, 1924, and commencing onApril 1, 1928, the respondent, without demurrer or complaint, paid to the appellant the sumof $416.66 each and every month up to and including the month of December, 1924, when hereduced the amount, claiming inability to pay more. If the judgment or the provisions of the agreement of the parties, which was incorporatedtherein, was ambiguous, the construction placed on such ambiguity by the parties will beadopted by the court. Rodee v. City of Ogdensburg, 148 N.Y.S. 826; Gamble v. Silver Peak,34 Nev. 450; Carey v. Clark (Nev.), 161 P. 715; 13 C.J. 546, sec. 517; City Messenger Co. v.Telegraph Co. (Ore.), 145 P. 657.

McCarran & Mashburn, for Respondent: The order of the trial court is an order merely construing the decree as originally entered,and is not an order modifying the decree in either its terms, substance or effect. The courtitself says that its action is a mere construction of the decree, using the following language atthe end of its order: Such is the court's construction of the decree. Counsel for appellant have erred in their conception of the relief requested by our motionand notice of motion, and granted by the court. In pursuing this misconception they have, webelieve, misapplied the law


and cited cases and authorities which are not in point. The first authority cited by appellant, 34 C.J. 232, we submit itself shows that themodifications and changes prohibited are those which go to matters of substance. And it

goes further and actually holds that such construction and such changes as are requested byrespondent and made by the district court are authorized after the expiration of the statutoryperiod of limitation or the expiration of the term. We are not seeking any modification of thedecree in matters of substance or in its terms; we are merely seeking to have the decreealready entered construed. This very volume of Corpus Juris, and in the section immediatelypreceding the section relied upon and cited by counsel for appellant, sustains the very thingfor which respondent is contending. 34 C.J. 229-231, sec. 450. There are hundreds of casescited in the notes to sustain the last cited authority, cases from the courts of last resort of 43states of the Union, including the State of Nevada, and from the United States Supreme Courtand many of the federal courts. (Note 83). The right of a court to construe its judgment and decrees is inherent. It certainly has theright to relieve its judgments and decrees of ambiguity. 34 C.J. p. 236, sec. 456; SabineHardwood Co. v. West Lumber Co., 238 Fed. 611; Keene v. Welsh (Mont.), 21 P. 25;Clemens v. Gregg (Cal.), 167 P. 299; O'Bryan v. Am. Inv. etc. Co. (Wash.), 96 P. 241;Slingerland v. Slingerland (Minn.), 124 N.W. 19. The court may even modify, upon proper showing, a decree of divorce, in so far as itrelates to the custody and support of the children, even after the expiration of the term or thestatutory period of limitation. Stewart on Marriage and Divorce, sec. 406; Keezer onMarriage and Divorce, secs. 594 and 600; 9 R.C.L. 484, sec. 299; Beers v. Beers, 133 P. 606,par. 1. By a specific provision of the Nevada statute the courts of this state are given authority tochange their decrees with reference to the awarding of custody of the children when they aresatisfied that such a change


is for the welfare of the children. Rev. Laws, sec. 5840. It is universally held that support ofminor children is always a mere incident to the order for their custody. Bancroft v. Bancroft(Cal.), 173 P. 584, par. 3. By the great and overwhelming weight of authority, the law does not require that either thedecree itself or the law reserve to the court the right to modify the decree regarding thesupport of the children or the amount to be paid therefor, but even such modification may bemade in a decree where no such reservation is had. 19 C.J. 359, sec. 819, top of first column;Lewis v. Lewis (Cal.), 163 P. 42; L.R.A. 1917f, 731. Such changes may be made even where the children are out of the jurisdiction of the court.Wells v. Wells (Ore.), 25 P. 266, pars. 1, 2.A mere clerical error or mistake arising from inadvertance may be corrected by the court onits own motion, so as to make the judgment speak the truth even after the term. In ReBreckenridge, 34 Nev. 280, Ann. Cas. 1914b 873; Ehrhard v. Currie, 7 Nev. 222.

OPINION

By the Court, Ducker, C.J.: On March 22, 1924, the court in the above-entitled action decreed a divorce in favor of theplaintiff wife, appellant here, which contains the following provisions concerning the supportand custody of the minor children of the parties, to wit: That the defendant (husband) pay tothe plaintiff the additional sum of Twelve Hundred Dollars per year in equal monthlyinstallments for the full and entire support and maintenance of the minor child, Gordon InglisLindsay, Jr., excepting therefrom the cost of his education, commencing on April 1, 1924,and to continue until he shall become self-supporting; and that the defendant pay to theplaintiff the additional sum of Twelve Hundred Dollars per year in equal monthlyinstallments for the full and entire support and maintenance of the minor child, MarydeForrest 2'6%0

8

9$

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Lindsay, excepting therefrom the cost of her education, commencing on April 1, 1924, and tocontinue until she shall marry; that the plaintiff be awarded the custody and care of saidminor children during the term of each school year, and defendant be awarded the custodyand care of each of said children during the summer school vacation period and one-half ofall other school vacation periods, and the defendant also be awarded the care and custody ofsaid children from Friday evening until Monday morning on each alternate week during theschool terms only, and when the schooling of said children shall have been completed thecare and custody of said minor children be equally divided between plaintiff and defendant. On February 2, 1927, through his attorney, defendant filed in the trial court his notice ofmotion and motion for an order to construe the decree of divorce in the following particulars: (1) As to whether said decree requires the respondent to pay all of the expenses of theeducation of the children, or whether he may deduct such expenses as he may be required topay for their education from the $1,200 which he is required to pay each year for the supportand maintenance of each of them, and (2) As to whether said decree requires respondent to pay appellant the sum of $1,200 peryear for the support and maintenance of each child, or whether he could deduct therefrom theamount of expense he actually pays out each month for the support and maintenance of eachchild when the children are in his custody during the vacation period of the year during thatportion of their lives when they are receiving their schooling and education and in his care

and custody thereafter as provided for in the decree. In the motion is also contained a request for an order modifying the decreeing case thecourt should construe it to require the respondent to pay the sum of $1,200 a year for thesupport and maintenance of each child in addition to the expense of their education and theexpense of their support and maintenance while in his

*


custody under the terms of the decree, so as to provide that respondent would not be requiredto pay the full $100 per month for each child during the time the children were in his custody,but would be permitted to deduct all sums paid for their support, maintenance, and educationduring such times. Affidavits and counter affidavits and documentary evidence were offered at the hearing onthe motion. The trial court overruled appellant's objections to the court entertainingjurisdiction of the motion. After argument on the motion and consideration thereof, the courtentered an order which, omitting a statement of the portion of the decree to be construed, andstatements of the contentions of counsel, reads as follows: If we deduct the cost of education from the amount mentioned in the decree, then it is nota decree for Twelve Hundred Dollars per year in equal monthly installments for the full andentire support and maintenance of the minor child. The phrase or clause excepting therefromthe cost of his education' does not mean that the money is to be used for any other purposethan the full and entire support and maintenance of the minor. In other words, the cost ofeducation is exclusive of the maintenance and support. In this connection we will say that if the minor child lives with the father, or with anyother person, the mother is supposed to pay for the full support and maintenance out of theHundred Dollars, which the decree gives for such purpose. In other words, if the minor childlives with the father six months of the year, the mother should pay to the father, from theHundred Dollars per month granted to her by the decree for the boy's support andmaintenance for six months. This reasoning applies to both of the minors. Such is the Court's construction of thedecree. Done in open Court this 18th day of April, 1927. The appeal has been taken from this order. Appellant contends that the order is in effect amodification of the decree, that it reduces the amount required to be paid by respondent toappellant, and that the court was

+


without jurisdiction to make it. Lack of jurisdiction is claimed because of the fact that morethan six months had expired from the rendition of the decree before notice of the motion wasgiven as required by rule 45 of the rules of the district court. The rule reads: No judgment orother judicial act or proceeding shall be vacated, amended, modified, or corrected by the courtor judge rendering, making or ordering the same, unless the party desiring such vacation,amendment, modification or correction shall give notice to the adverse party of a motiontherefor, within six months after such judgment was rendered, order made, or action orproceeding taken. On the other hand, respondent contends that the court had jurisdiction for the reason thatthe motion was not to modify the substance, effect, or terms of the decree, but to construe andclarify it wherein it was ambiguous, and which is all the court did by its order. We are of the opinion that the district court rule is no bar to the correction of errors oromissions of a clerical or formal nature, or limitation of the power of the court to construe adecree or judgment wherein it may be ambiguous, so as to make it speak the truth as to whatwas actually decided. It is intended as a time limit for vacating such a proceeding or foraltering it in any substantial way. If the order of court is merely curative of uncertainty in the decree and in no way changedit in substance, the court was not without power to so construe it, and its action must besustained. 1. It is well settled that a court has inherent power independent of statute to remove anyambiguity in a judgment or decree or to correct clerical or formal error at any time. Gagnon v.United States, 193 U.S. 451, 24 S. Ct. 510, 48 L. Ed. 745; Kaufman v. Shain, 111 Cal. 16, 43P. 393, 52 Am. St. Rep. 139; Sparrow v. Strong, 2 Nev. 362; Ex Parte Breckenridge, 34 Nev.275, 118 P. 687, Ann. Cas. 1914b, 871; Keene v. Welsh, 8 Mont. 305, 21 P. 25; SabineHardwood Co. v. West Lumber Co. (D.C.) 238 F. 611-615; Clemens v. Gregg et al., 34 Cal.


App. 272, 167 P. 299; 15 Encyc. Pl. & Prac. pp. 220-225; 1 Black on Judgments (2d ed.), p.223 et seq.; 34 C.J., pp. 229, 235, 236. All courts, says Mr. Freeman, in his work onJudgments (5th ed. vol. 1, p. 281), have inherent power, independent of statute, to correctclerical errors at any time, and to make the judgment entry correspond with the judgmentrendered. 2, 3. But in our opinion the decree is not ambiguous as to the terms for support,maintenance, and education, and therefore afforded no basis for the court to construe it. Theorder of the court altered the decree in a substantial way by reducing the amount whichrespondent was required to pay for the support and maintenance of the minor children. As thetime limit of the rule had expired when the motion and order were made, the change in theterms of the decree is against the plain prohibition of the rule, and therefore unauthorized.

The decree clearly requires respondent to pay to the appellant $100 per month for each ofthe children for their support and maintenance for the time specified, namely, in the boy'scase until he shall become self-supporting, and as to the girl, until she shall marry. From thisamount respondent is permitted to deduct any cost he may incur for their education. The orderof the court changes these specific terms and requires the appellant to pay the respondent, outof the $100 per month which the court gives her for each child, the cost of its support andmaintenance while in his custody during the vacation and other periods mentioned in thedecree. While it may have been quite equitable to have placed such a provision in the decreein the first instance, its terms awarding the respondent the custody of the children during thelesser periods of the year while they are receiving their education do not justify the reading ofsuch an exception into the main provisions for support and maintenance under the theory ofconstruing the decree. 4. The only exception is for the cost of education. Education and support are unrelatedsubjects, and it is not to be presumed that the court in its decree intended


support to be considered as a part of the cost of education, and therefore to be deducted fromthe $100 per month when the children were in his custody. Under the view we take of the decree, it is unnecessary to discuss the evidence adduced onthe hearing of the motion in the court below. The order appealed from is reversed, and the lower court is directed to enter an orderdenying respondent's motion.

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52 Nev. 35, 35 (1929) McGill v. Bankers' Trust Co.

In Re McGill's EstateMcGILL v. BANKERS' TRUST CO.

No. 2818

September 9, 1929. 280 P. 321.

1. CorporationsExecutors and AdministratorsCorporation Has Implied Power to do ActsNecessary for Exercise of Powers Expressly Granted, and Officer Thereof May MakeRequired Affidavit on Appointment of Corporation as Administrator.

Corporation has implied power to do all acts which may be necessary to enable it to exercise powersexpressly conferred, and officer of corporation authorized by act regulating banking, Stats. 1911, c. 150,sec. 5 (Rev. Laws, sec. 620), to act as administrator, may make affidavit required of administrator.

2. Executors and AdministratorsForeign Corporation May Qualify as Administrator ofDecedent's Estate in Nevada. Foreign corporation may qualify as administrator of estate of decedent in Nevada under Rev. Laws,sec. 620, and Comp. Laws Utah 1907, sec. 424, authorizing organization of trust companies to act asadministrators; person who may qualify being designated by Stats. 1917, c. 192.

3. CorporationsForeign Corporation May Enter Into State and Exercise Legitimate Powersas Corporation, Except as Limited or Prohibited by Local Laws or Public Policy. Under principles of comity, and except as otherwise provided by constitution or statute, foreigncorporation may enter into state and carry on any business not prohibited by local laws or against localpublic policy.

4. Executors and AdministratorsPresumption Prevails that No Public Policy Exists AgainstQualification of Foreign Corporation as Administrator, where it Is Qualified so to Actin State of its Domicile. In absence of local statute authorizing corporation to act as administrator, presumption would prevailthat no public policy '**


exists against foreign corporation qualifying as administrator where it is qualified so to act in state of itsdomicile.

5. Executors and AdministratorsForeign Trust Company Held Entitled to AdministratorEstate Of Decedent in Nevada. Foreign corporation organized as trust company held entitled to act as administrator of estate of decedentin Nevada under Stats. 1917, c. 192, Rev. Laws, sec. 620, and Comp. Laws Utah 1907, sec. 424,authorizing organization of trust companies with power to administer estates, and such power of foreigntrust company is not withdrawn by Rev. Laws, sec. 662, providing that no foreign trust company shallengage in banking business in this state without first obtaining a license.

6. Executors And AdministratorsIn Proceedings to Set Aside Appointment ofAdministrator, Supreme Court Must Presume that Original Petition for Appointment andEvidence Thereunder, Not Included in Record, Were Sufficient. Supreme court, in application to set aside appointment of administrator, must conclusively presume thatoriginal petition for appointment set forth full compliance with all statutory requirements, and that petitionwas sustained by proof, where no copy of such petition was included in record and no showing made as toevidence introduced thereunder.

C.J.-CYC. REFERENCES Corporations14a C.J. sec. 2086, P. 252, n. 11; Sec. 3928, p. 1217, n. 44. Executors And Administrators23 C.J. sec. 128, p. 1050, n. 54, 55; sec. 158, p. 1060, n. 96.

Appeal from Ninth Judicial District Court, White Pine County; William E. Orr, Acting

Judge.

Application by Neil A. McGill and another to set aside the appointment of the Bankers'Trust Company as administrator of the estate of William N. McGill, deceased. From an orderdenying the application, applicant named appeals. Affirmed.

C.A. Eddy and Philip S. Ehrlich, for Appellant: Under the common law a corporation was not competent to act as an administrator orexecutor because it could not take an oath for the due execution of the office. Fletcher Cyc.Corps., vol. 2, sec. 937; idem, vol. 2, p. 1883, n. 41. And that the rule prevails at the present time , see Farmers Loan and Trust Co. v. Smith,74 Conn. 625, 51 Atl. 609; Georgetown College v. Browne, 34 Md. 450; #/#:;

corporations before they may lawfully do business within the state, and special laws and actsfor =+'


the formation and organization of domestic banks and trust companies and according suchspecial privileges, foreign corporations coming in to the state to do business under suchgeneral laws are not permitted to exercise such special privileges. In Re Estate of Prime, 136N.Y. 347, 18 L.R.A. 713; White v. Howard, 46 N.Y. 144; Fletcher Cyc. Corps. vol. 8, sec.5886: Matter of Avery, supra; Matter of Ballis, 144 N.Y. 132. A foreign trust company may not come into this state and carry on a trust companybusiness under our general corporation laws relative to foreign corporations. New York etc. v.Secretary of State, 150 Mich. 197, 114 N.W. 82; Union Savings Assn. v. Burns, 176 P. 227;Fletcher Cyc. Corps., sec. 5734, vol. 8; Matter of Avery, supra. Therefore the order appoint such administrator of estate is void, as well as the letters ofadministration issued thereunder. Continental Trust Co. v. Peterson, 107 N.W. 788: notes toGiglio v. Wollard, 14 A.L.R. 616; Haug v. Primeau, 98 Mich. 91, 57 N.W. 25; Moore v.Philbrick, 32 Me. 103: 15 C.J. 729, Excess of Jurisdiction; 15 C.J. 852; 15 Cal. Jur. 49.

Chandler & Quayle, for Respondent: Assuming, for the sake of argument, that the Bankers' Trust Company was not eligible tobe appointed or to act as administrator, the order appointing it was not void, but at the mostwas only erroneous and voidable. Lincoln Trust Company v. Gaddis and Perry, 15 Ariz. 372,139 P. 461; Union Savings Bank and Trust Co. v. Western Union etc. Co., 79 Ohio St. 89, 86N.E. 578, 128 Am. St. Rep. 675; note to Giglio v. Woollard, 14 A.L.R. 616. The order and letters not being void and not having been appealed from may only berevoked for one of the causes specified in the statute, which does not include the causepresented by the motion involved on this appeal. The principle is well established in theconstruction of statutes that where certain things are enumerated as disqualifications, then allother things are excluded; this principle being expressed in the maxim >''&?@AB&3

Am. St. Rep. 127; In Re McDonald's Estate (1914), 211 N.Y. 272, 105 N.E. 407; In ReRhoda (Matter of Giotto), 105 App. Div. 143, 93 N.Y.S. 973; In Re Shenk's Estate, 125 Misc.386, 211 N.Y.S. 514; Miller v. Hider, 9 Colo. App. 50, 47 P. 406; Sweeney v. Sweeney, 42Nev. 431, 179 P. 638. Movants were estopped by their conduct to urge the motion and had lost the right to do soby their laches. Estate of Kirtlan, 16 Cal. 162; Estate of Keans, 56 Cal. 407; Silvar's Estate(Cal.) 46 P. 296; In Re Infelise's Estate, 51 Mont. 18, 149 P. 365; Miller v. Hider, supra. A foreign corporation may receive letters of administration and act as administrator underthe laws of Nevada, and hence the appointment of the Bankers' Trust Company was not evenerroneous or voidable. On the ability of a corporation to take the administrator's oath, see Woerner onAdministration (1923 ed.), p. 788; 23 C.J. 1026; Fidelity etc. Co. v. Niven (Deringer v.Deringer), 5 Houst. (Dela.) 416, 1 Am. St. Rep. 150 (reversing the decision of the superiorcourt in 5 Houst. 163); Minnesota Loan & Trust Co. v. Beebe (Minn. 1889), 41 N.W. 234, 2L.R.A. 418; Simmons v. Campbell (Tex. Civ. App.), 213 S.W. 338; Union Bank and TrustCo. v. Wright (Tenn.), 58 S.W. 755; Kelly v. Calhoun, 95 U.S. 710, 24 L. Ed. 544;Killingsworth v. Portland Trust Co., 18 Ore. 351, 7 L.R.A. 638, 17 Am. St. Rep. 737, 23 P.66; Scott etc. Co. Ltd. v. Leake (1908), 9 Cal. App. 511, 99 P. 731; Old Settlers Inv. Co. v.White, 158 Cal. 236, 110 P. 922; American Soda Fountain Co. v. Stolzenbach, 75 N.J.L. 721,68 Atl. 1078, 127 Am. St. Rep. 822, 16 L.R.A. (N.S.) 703; Jotter v. Charles B. Marvin Inv.Co., 67 Colo. 555, 189 P. 22; Mulherin v. Kennedy, 120 Ga. 1080, 48 S.E. 437; In Re Roth'sEstate, 107 Misc. 598, 176 N.Y.S. 887; In Re Goddard, 94 N.Y. 544; Louisville etc. Co. v.Herndon's Administrator, 126 Ky. 589, 104 S.W. 732, 31 Ky. L. 1059.


The word persons in the Nevada statute relating to those entitled to administer estates ofdeceased persons includes a corporation. Simons v. Campbell, supra; Louisville etc. Co. v.Herndon's Administrator, supra; American Soda Fountain Co. v. Stolzenbach, supra; Martinv. Atlas Estate Co. (N.J.), 65 Atl. 881. The Majority opinion in Fellows v. First NationalBank (Mich.), 159 N.W. 335, is also an emphatic authority against appellant's contention.The word person' includes a company, partnership, association or corporation as well as anatural person. Sec. 5475, Rev. Laws. It is not contrary to the policy of the Nevada laws for a foreign corporation to act asadministrator, and consequently a corporation may so act in this state. 12 R.C.L. 11 (ForeignCorporations), sec. 5; 12 R.C.L. 13, 14, sec. 6; 14a C.J. 1217-1218; 14a C.J. 1327;Commonwealth Acceptance Corporation v. Jordan, 198 Cal. 618, 246 P. 796. If the Nevadabanking act does not, as we contend it does, affirmatively show that the Nevada legislaturecontemplated that foreign trust companies might carry on their business in the State ofNevada, the very fact that the Nevada legislature has granted to domestic trust companies thepower to act as executors and administrators shows that it is the policy of the state to permit

corporations to so act, and this policy will include foreign corporations in the absence of theexpression of a positive intention to the contrary. In Re Rawitzer's Estate, 175 Cal. 585, 166P. 551; Fidelity etc. Co. v. Niven, supra; Fellows v. First National Bank, supra; In Re Bailey'sEstate, 31 Nev. 382, 103 P. 232.

John D. Hoyt, Amicus Curiae: It is contended by appellant and entirely acquiesced in by this writer that a corporationcannot be appointed executor or administrator at common law because of its inability to takethe oath of office (Thompson on Corporations, 3d ed., sec. 2233), and that such appointmentsare entirely dependent upon some legislative enabling act providing the manner in which acorporation may take the oath. It was not until the year 1927 that the !%A2%:


legislature of this state passed an amendment to section 5910, Rev. Laws, which appears inthe session laws of 1927, p. 28, in which amendment statutory authority is given to adomestic corporation or a banking corporation to take the oath of office as executor oradministrator through one of its officers. It is earnestly contended that prior to the adopting ofthis amendment no corporation could act as executor or administrator in this state, and thatthe right as it now exists is entirely confined to banking corporations and Nevadacorporations qualified to transact a trust business. In the case at bar a foreign corporation wasappointed administrator, and this in the year 1923, four years before any character ofcorporation was authorized by the statute to qualify in this capacity. We also agree with counsel for appellant in his contention that where there is a special actfor the incorporation of banks and trust companies, and general laws under which foreigncorporations may come into the state and do business, such general laws relate only to theright of foreign corporations to transact general corporate business in this state, and do notauthorize them to come into the state for the purpose of transacting banking and trustcompany business, for which a special state charter is required. Authorities on this point arecited by appellant. The writer feels, however, that there is a more direct prohibition against the right of aforeign corporation to transact trust company business or to act as executor or administratorthan the general proposition hereinabove discussed. The banking act of 1911 (Rev. Laws,secs. 616-693, inc.), in addition to being a general law for the incorporation of domesticbanks and trust companies, is a limitation of the right to transact either a banking or a trustcompany business, as defined in the act, to banking corporations organized under theprovisions of that act, or national banks doing business in this state, except that banking andtrust corporations duly organized prior to the year 1911 are permitted to continue suchbusiness as originally incorporated. This

'


would exclude all other Nevada corporations and all foreign corporations. Attention is called,in this connection, particularly to the provisions of sections 619, 687 and 690, Rev. Laws.Similarly, no corporation can transact any of the kinds of business mentioned in sec. 620,Rev. Laws, and this includes acting as executor and administrator of an estate, unless it wasqualified as a trust company in Nevada prior to 1911, or unless it has since been incorporatedunder the provisions of the banking act and not as an ordinary corporation. For the foregoing reasons it is submitted that the appointment of Bankers' Trust Company,a Utah corporation, as administrator of the estate of William N. McGill, deceased, wasimproper.

OPINION

Per Curiam: This is an appeal from an order refusing to declare null and void an order appointingBankers' Trust Company, a Utah corporation, administrator of the estate of William N.McGill, deceased. The deceased left surviving him a widow and two children who had attained theirmajorities. Neither of them applied for letters of administration upon the estate, but they allurged the appointment of said trust company. Said company made application to be appointedsuch administrator, and in due time, after notice of the hearing on said application, therebeing no objection made thereto, the court made an order appointing said trust companyadministrator of said estate, on May 16, 1923. On May 23, 1927, the two sons above referredto applied to the court for an order declaring null and void said appointment. It is from theorder denying such application that this appeal is taken by Neil A. McGill, one of the sonsmentioned. Appellant makes four points, namely: That a corporation was not competent to act as anadministrator at common law because it could not take an oath; that a corporation is not aperson within the purview of our 00+


probate statute; that the appointment of a foreign corporation as an administrator is contraryto public policy; and, lastly, that the legislature having enacted a special law governing banksand trust companies, the general law as to foreign corporations does not apply. The legislature in 1917 amended the then existing law designating who shall berespectively entitled to the appointment as administrator of the estate of a deceased person. Itreads: FirstThe surviving husband or wife, or such person as he or she may request to haveappointed. SecondThe children. ThirdThe father, or the mother. FourthThe brother. FifthThe sister. SixthThe grandchildren. SeventhAny other of the kindred entitled to share in the distribution of the estate. EighthThe creditors. NinthThe public administrator. TenthAny of the kindred not above enumerated, within the fourth degree ofconsanguinity. EleventhAny person or persons legally competent. Stats. 1917, p. 355, c. 192. We concede, without so deciding, that at common law a corporation was not competent toqualify as an administrator. But we do not think that such a concession is entitled to muchconsideration in this matter. Here we may say that we are not ready to concede that a corporation is not a person inthe sense in which that word is used in our probate act. It is universally held that acorporation is an artificial person. This court so held in Ex Parte Rickey, 31 Nev. 82-99, 100P. 134, 135 Am. St. Rep. 651, and in State ex rel. Curtis v. McCullough, 3 Nev. 216. If thecontention made is sound, certain individuals might find themselves without recourse were atestator to l

Documents

Nevada Reports 1929-1930 (52 Nev.).pdf