*1 BOWLER, A. and MILTON D. MILTON BOWLER VANNOY, v. RALPH Petitioners, Sheriff Respond County, Nevada, Churchill State ent. No. 3598
February 10, 1950. 248. 215 P.2d *3 Morley Reno, George Vargas, L. Grisxoold and both of for Petitioners. Sinai, Reno, Haight, S.
John and Andrew L. of Fal- lon, for Respondent.
OPINION Court,
By C. J.: Horsey, proceeding, petitioners, In the above-entitled Mil- Bowler, attorneys, ton A. Bowler and D. Milton their Morley the Honorable Griswold and the Honorable George Vargas, day December, 1949, L. on the 8th justices informally peti- presented this court *4 tion for writ of mandate. petition, together with
Such the matters of fact and alleged argument presented law therein and on George Vargas petitioners attorney of said behalf L. for justify to disclosed sufficient cause such an alternative premises. writ be issued in to
Accordingly, petition by the under- aforesaid was signed justice, by chief concurred the honorable asso- filed, justices, ordered be alternative ciate day Decem- writ of mandate to on 8th be issued said ber, 1949. 12,1949,
On mandate December the alternative writ of aforesaid, December ordered and issued as on duly was filed and is follows: “The Sheriff State of Nevada to Ralph Greetings: County, Nevada, Churchill “Whereas, manifestly by peti- the verified appears Bowler, tion of Milton A. Bowler and D. Milton beneficially herein, 21st petitioners interested that on the day October, 1949, you, Sheriff, upon the said went premises petitioners the ranch and and after petitioners petitioners notice said and others that said dairy thereon, you owned cattle and bulls did will- fully unlawfully seize, of, take possession remove, seized, or cause taken of and removed, forty-one (41) dairy one head of cattle and (1) premises petitioners; from the said bull thereafter, October, day and on or about the 25th petitioners, D. A. said Milton Bowler and Milton Bowler, by claim their written verified oath upon forty- you, Sheriff, claimed the served the said said (41) dairy (1) one one their head of cattle and bull as undertaking that no property; filed whatsoever was days (5) within five after said written demand was given you, Sheriff, you might the said in order that notwithstanding hold property; said the failure of give undertaking, you wholly said person failed forty-one (41) and refused to release the said head of (1) petitioners; cattle and one bull to the that no petition any hearing or application filed to deter- question mine title to cattle and the said said bull (10) days within ten after party the said third verified you; that, written claim had been served 2,1949, petitioners about November upon you served an additional notice and demand for the immediate property damages, return of all of said and for their you wholly completely and that have failed to return therefor, damages or account or account property *5 therewith, plain, in connection and there is not adequate remedy ordinary in the of speedy course law;
“Whereas, by duly given, an order of this Court made day and entered in the action on 8th above-entitled December, 1949, of an ordered that Alternative was you; Writ of Mandate should issue “Therefore, hereby you it is commanded that imme- diately Writ, after the of this receipt forthwith return petitioners, to the said Milton A. D. Bowler and Milton Bowler, premises, at their the Bowler Ranch in Churchill County, Nevada, you seized, from which ranch took and removed, seized, removed, or caused to be taken and forty-one (41) dairy (1) bull, head of one cattle and on 21, 1949, October you the said cattle and said bull which seized, then and there took possession and removed seized, removed, or caused to be taken of or together any offspring thereof born from or after 21, 1949, cause, you said October or that if show you have, before this Court in the Courtroom City, Nevada, Court of the State of Supreme Carson Nevada, December, day on the 22nd at hour why day, you M. of ten o’clock A. of said not done have so.” respondent, Ralph Vannoy,
The sheriff of Churchill County, pursuant Nevada, State to said alternative writ, having peti- failed return forthwith the said tioners, Bowler, Milton A. Bowler and Milton D. at their namely, County, Bowler Ranch premises, in Churchill Nevada, forty-one (41) head of cattle and one bull, pursuant which, Holstein to said alternative do, writ the sheriff was commanded to before this state, supreme court the courtroom of court City, Nevada, day December, the 22d Carson day, hour of ten o’clock m. at the a. of said or to so, why he had not done show cause said respondent open sheriff then there court made appeared, alternative his answer return writ peti- proceeded The order to show cause tion herein. thereafter, Sinai, Esq., immediately John S. with and *6 assuming sheriff, attorney the affirm- for the respondent ative, cause, pursuant and such order to show George Esq., petitioners in Vargas, attorney for L. the respective argu- opposition thereto, proceeded with their hearing ments, in connection therewith such upon and court, points or and authorities this certain briefs before attorneys respective the said for parties duly filed, been permitted and same have consid- to be abundantly Indeed, able that the feel to state ered. we have, respective attorneys doubtless in this proceeding diligence laboriously, certainly and much care- and with respective research, presented their and ful produced arguments both written and oral. hearing cause,
At the the order to this upon show in court, 22, 1949, upon presen- court on December filing respondent’s return, of and tation and answer Quash respondent’s “Notice Motion and Motion to Writ,” in there- Alternative connection and Dismiss justice had then had or the chief time oppor- argu- carefully tunity motion to read such before ments, ruling objection in an connection with Vargas, attorney the effect by Mr. for petitioners, transcript not be deemed to include the that the should proceeding in this in the instant court upon evidence justice having mandamus, in mind and and the chief referring proceeding believing in the was counsel Nevada, judicial court the State of district First county Churchill, No. and not to the proceeding court, No. 4272 in mandamus that and that transcript was voluminous and referred to the trial 4110, court in said former action No. in the lower scope beyond quash of such motion to proper justice proceeding, The so ruled. chief has the instant believing he was mistaken in since ascertained objection to No. and that the actu- reference was proceeding upon ally mandamus related No. Judge Guild’s court. therefore, ruling ordered, as to such It is objection stricken, be and the is same and instead that objection overruled, the said be and is for the reason that proceeding referred to in transcript the mandamus per- in relation to No. and which has since filed, mitted contains important matters evidence which, believed, may it is well be of value instant in the proceeding. This not said in is order that action court, may of the district mandamus proceeding any change bearing manner affect or have upon any taken, purpose action solely there but is for the considering acting upon mandamus the instant proceeding (and No. 3598 in this court which we view being entirely proceed- separate independent , authentic, ing) so that the it is facts which believed are might may possibly appear, than otherwise make clearer *7 legal involved, the end factual situations to that may be accomplished. correct determinations from appears It the record of this instant mandamus proceeding No. 3598 in that the said in action the First judicial court, Churchill, county district in and for the of designated 4110, Belanger, Stella B. as No. Leonard therein, Belanger, and David J. M. Childers plaintiff H. Vrenon, individually doing
and Vincent business style Dairy, the name under Modern were defend- appears prior It herein ants. further the action 4110, prior No. action No. 4095 in the same district occurred, had in court which B. Leonard Stella Belanger, plaintiff therein, had been awarded decree husband, Belanger, from her David divorce A. action, and in the said in that said action
defendant Belanger had decreed to be the B. Leonard Stella cattle con- owner of certain cattle and that said sole forty-one (41) head of Hol- cows one sisted bull. stein 4110, judg- in No. appears
And in effect from Belanger therein B. ment that Stella Leonard had not obtaining cattle, for of said succeeded Belanger purported reason that J. had to sell David Childers, 1948, together 31, July to one H. M. on same all born made with increase thereto substitutions and/or defendants, M. H. therein either or of said both Vrenon, and it appears, Childers and Vincent further Childers, effect, judgment on said H. M. from said purported to said had to sell same September order, judgment Conversely, Vincent Vrenon. effect, Vrenon that Vincent return provided, decree forty-one (41) H. M. the identical defendant Childers (2) two which head of cows and the bulls milk Childers, purchase from purported Vrenon the said together 10, 1948, September with all increase on said therein, and that born thereto substitutions made and/or deliver M. and surrender defendant H. Childers Nevada, County, forty- plaintiff the identical in Churchill (2) bulls, (41) which head of milk cows and two one M. from purported purchase defendant H. Childers Belanger, July 31, David on the defendant increase born thereto substitutions and all and/or defendants, therein, by M. either or both H. made testimony, copy Vincent Vrenon. The Childers and court, 3, 1950, was, January filed in this Guild, the Honorable Clark J. heard before which was November, 1949, day judge, on the 22d district petitioning by the then that court petition- matter before mandate, appears, part, therein, a writ of ers follows: Nevada, County,
R. J. sheriff of Churchill therein, an and sworn as adverse witness appearing *8 that, Vannoy, day in effect the said on the testified 21st October, 1949, day premises went County, Nevada, Milton A. Bowler in Churchill they Vincent that he was taken there Vrenon and that together; he, that others were were there there while there, Vannoy, premises, including on the said Stella Belanger, Coleman, Stroup, B. Leonard Mr. Mrs. Pete boy, Burgess, Springer, and the Milton he Springer name, gentleman his first and one believed was other recall; name witness did he Mr. presumed whose attorney with an at law Mr. Sinai. Coleman was Sheriff Vannoy, continuing, stated, explain “I would like to what there; occurred why there; there before I I went went * *”* what took me there. “I received from Mr. Cole- execution, man which judgment was a writ of and an attorney I instruction from the read I the papers. Dairy. went down to see Mr. Vrenon at the Modern “* * * papers.” Showed him the had with him a writ “* * * of execution and instructions.” came back to my office, from there went down to Vrenon’s the second time and Mr. Vrenon took me out to Banch. Bowler’s He went in car I his and went in mine but led me he way voluntarily.” effect, said, out The witness possession that he had the inwrit his when he went upon premises Bowler, that he saw Milton A. Bowler and Milton D. Bowler at their when he premises went October, day there on the 21st 1949—that Mr. Vrenon pointed him, them out to that he didn’t know them The witness further stated: “Mr. Vrenon was before. with me. Stated the cattle were on the Bowler Banch. * * *” “Mr. Bowler was present [*] [*] [*] Mr. Bowler right they they were also said out there there — * * right said, said, “they are He out there.” He “you can of them now. There is the see bull. some giving I I cattle When said had a writ those to Mrs. says, ‘they Mr. are Leonard and Bowler there in ” field.’ Continuing, Vannoy Mr. “Mr. further testified: go says, ‘May telephone’? I in and Bowler use the I certainly, objection you do, I have no Mr. what you quarrel anybody Bowler. I have no else * * *” any they cattle. “Mr. Bowler said over could in the there. didn’t drive the cattle corral He have loading (chute). They drive could them in the barn ' gate. They truck had and load them the had a ingate drop an that would down.” Vargas, questioning, Vannoy: then asked Mr.
Mr. “Q. fact, Mr. a matter of at time that
As morning you Banch on the of Octo- went out to Bowler’s cattle, 21st, demand of these ber *9 A. you Mr. the cattle? didn’t ask Bowler out point voluntarily. any- pointed him I ask He them out didn’t thing. No,
“Q. point A. You did not ask him to them out? sir.
“Q. fact, Mr. did not a matter of Mr. As going point say you substance, T am Bowler They any are all mine?’ cattle. I them all. out own ours.) sir, (Italics A. No not at that time.
“Q. did he make such a statement not at When if something Perhaps that time? A. later or effect. party. talked to another He
“Q. very How much later? A. Mr. Bowler was cooperative to start with.
“Q. premises Tell occurred at the Bowler on the what Coleman, fully day I A. Mr. talk 21st October. —can on this ?
“Q. Any made in the of Mr. presence statements you may I want. Bowler state. A. That’s what “Court: Just minute. If Bowler or either one you present can them were state conversation. A. present. Bowler Mr. Mr. Coleman asked Mr. Bow- cooperate getting origi- him in ler if he would these forty-one nal head of cattle and two bulls. Mr. Bowler said, one bull had died and we will stated ‘We concede my told that.’ Mr. Coleman Mr. Bowler in presence any Mrs. Leonard’s ‘We will not touch presence you say you acquired on cattle or cow this have place original only any We from other source. want these says, just point you He ‘if will out one cattle.’ we * * *” touch it.’ Mr. Bowler refused to do that. will not “Q. Vargas: day Now that there was loaded Mr. premises of removed from the Mr. Milton Bowler dairy cows, forty-one there head of not? A. Yes. “Q. May explain Yes. And one Holstein bull? A. I further there? a little knowingly Yes. A. Mr. Bowler and his
“Court: son away willingly haul those fifteen cattle let them go. said, He ‘Let them We’ll I him not to. see told *10 your says, I not about ‘It is responsibility, later/ says, you T mine/ He to let tell Mr. Coleman/ refuse Begardless you he what tells now that’s the exact truth.” “Q. Vargas: Vannoy, fact,
Mr. As a matter of Mr. loaded, after these cattle had been did Mr. Bowler point point that out head fifteen of cattle and advise at Belanger you they history that had never had in the litigation? said,‘Let’s get A. Yes. And I them.’ And go.’ says, ‘No, them and he them he didn’t take let “Q. you willing say time You at that to take Certainly, A. off of the truck? Mr. those cattle Cole- willing off. man was to take them He didn’t want original anything, only the cattle. touch “Q. you go said, ‘No, ahead and take Mr. Bowler go. any-. said, He can do those too’ ? A. ‘let them He thing’ says he further know what said he —he —I said, are out in the ‘The rest of her cattle there field. says, ‘Twenty-six, and couldn’t find them.’ He She ” in the field.’ OK and the of hers are out
bull are rest Vannoy’s testimony, appears that It further from Mr. upon him, Vannoy, Mr. claim was served
the third-party 25, 1949, and that he turned it over to the on October Leonard) (Mrs. attorneys plaintiff and that her for the Haight, Sinai, attorneys and Mr. Coleman. Mr. were Mr. Vargas Vannoy demanded of whether Mr.
Mr. asked they attorneys a bond in plaintiff that post or her Vannoy claim, and Mr. with that third-party connection I for.” stated, “I asked them —that’s what told “Q. likewise was That demand made on them on that Well, I day, 1949? A. was of October same by any cattle, I taken opinion didn’t have title was Leonard, not me.” Mrs. he, Vargas, by Mr. had Mr. whether
Asked “No, answered, I did not. requested a the witness bond gave I them the papers.” action, Vargas)
“Q. plaintiff in (By Did the Mr. Belanger you with an under- ever serve Leonard Stella equal taking sum two sureties executed —double party alleged in third the value of these cattle as claim? A. No.
“Q. pres- you Do know where these cattle are at Yes, ent time? A. sir.
“Q. they? A. Over in Mrs. Leonard’s Where are ranch at Hazen.
“Q. County, A. Nevada? And that is Churchill Yes, sir.” claim, signed third-party
In with such connection third-party Bowler, D. A. and Milton Milton Bowler 25, 1949, claimants, and served Sheriff October copy date, Vannoy and a last-mentioned Mandate,” filed “Petition for Writ to said is attached *11 12, 1949, in the Bowlers their December in this court regard particulars in stated claim third-party showing cattle, in detail head of said to fifteen in to the months mentioned as transactions several dairy cows were purchased 1949 in which and Bowlers, involved in each trans number of cattle and action, they were purchased, from whom and respective sellers and from the of sale bills several purchasers. Bowlers, who were to the received testimony appears from the that toas the fifteen It they dairy there can be no cows doubt that had head Bowlers, lawfully acquired by the without relation apart Belanger cattle, separate from the to and twenty-six dairy so-called, head of the and that the other purchased Holstein bull had been from and the cows together cattle, Vrenon, with other who had Vincent bill of Bowlers a sale therefor. executed to the said, effect, testimony Vannoy in Mr. his that Mr. said, her “The rest of cattle are out in the field.” Bowler said, Vannoy “She couldn’t find them.” further Then them.) find “He (Meaning Leonard could not that Mrs. ‘Twenty-six, says, are OK and the bull (Bowler) ” in the field.’ hers are out the rest of therefore, acknowledged, Vannoy Mr. his It is dairy effect, testimony, the fifteen head of such belonging unquestionably the cattle to the cattle Bowlers, carelessly, mistakenly, and were or at least transportation, taken and shortly loaded for there- after, premises removed from said of the Bowlers. upon alleged
Ostensibly, basis said writ execution, day October, 1949, issued on said 21st execution, judgment neither of which the writ of nor the purported against Bowlers, judg- to be neither the ment nor the execution to include Milton A. purported Bowler, they, Milton Bowler D. nor were and/or them, either of even mentioned therein. It would appear identify that Mrs. Leonard could not fifteen of such dairy cows, she, perhaps and that Mr. Coleman act- ing her, assisting gathering doubtless loading cattle, decided to other substitute cattle for find, and, any event, those she could not to make sure taking loading they what claimed to constitute twenty-six dairy bull, head of the cows and the Holstein enough head, they and another fifteen make sure had up forty-one to make the total of head of cows died, and the Holstein bull. the other bull (Apparently according Vannoy’s testimony.) Mr. Vannoy’s testimony
Mr. would seem to indicate ready, both he and Mr. eager, Coleman were almost belonging return the Bowlers, fifteen head but Vannoy repeatedly Mr. Bowler waved Mr. aside and * * said, “No, go. let them We’ll see about it later Vannoy said, get And Mr. “Let’s them. And he didn’t ” *12 says, ‘No, go.’ take them and he let them may Bowler, It have been that Mr. who claimed the right cattle, clearly to head of and which were fifteen his, cattle, and had claimed all of the and refused segregation acknowledge any right make or to part head, twenty-six the of Mrs. Leonard to the other aggravated annoyed by felt and no doubt perturbed, sheriff, assistants, the actions of the and his and told against Vannoy protest loading cattle, not to or the removing them, idea, being his that he meant perhaps, words, by later,” “We’ll about it that see imply by legal the Bowlers could find action vindication. contrary, Bowler, testimony upon in Mr. his
On. day the same in the mandamus before the proceeding positively judge, Guild, Clark district Honorable appeared denied that he had made such statement. It against Bowler’s that do so would seem to have been believe, interest, it would own and it is unreasonable to seem, occurred, all Bowler in view of that had indulged comic-opera parody would have in a sort of or arrangement Alphonse” not unlike in “Dear said, great courtesy gallantry profuse “You" said, “No, go first, my Alphonse,” and Mr. Gaston dear Alphonse, you go go my you I dear would before first.” is,
toAs the fifteen head of cattle court’s there this view, slightest not the doubt that said fifteen head of taken, dairy cows should not have loaded and by Vannoy, from removed Sheriff premises Ranch, Fallon, County, Nevada, Bowler near Churchill Vannoy, under that the action taken Sheriff Sinai, attorney respondent, Mr. instructions of entirely right justification, without constituted dairy head cattle. the conversion of such fifteen “Belanger” say What we as to so-called should cattle, being forty-one (41) head of cattle and one Ranch, from Holstein bull which were taken the Bowler the said of execution Sheriff under writ 21, 1949, upon and based issued October pursuant judgment in the First the said ordered to be entered court, Churchill, judicial county of in and for the district last named aforesaid on said date filed as court, action No. 4110? clerk’s office view, necessarily, It is our mandamus this proceeding in No. 3598 this court must the facts largely papers, predicated documents files including herein, testimony Judge taken before Guild proceeding judicial in the in the mandamus First district Nevada, county court in and of the State for the commencing Churchill, 22, 1949. on November testimony elicited from From the facts *13 appears twenty-six that as cattle, actually head of upon by levied 1949, 21, said execution on October and taken by and removed Vannoy Sheriff from the premises, Bowler Ranch may, not, may such cattle or have been originally the identical by cattle owned David Belanger Belanger, Stella B. Leonard either or of them. judgment
Because of the and execution No. we action, although must assume as to that same has been court, appealed to this liberty and we not at are pass upon any determine or or phase of it until part actually us, same is before that such action cannot be any parties deemed to have effect as to other not included action, parties in that nor made applies thereto. This Milton particularly to A. Bowler and Milton D. Bowler. questions, therefore, One of the which we con- must proceeding in this sider mandamus No. 3598 is as to twenty-six dairy taken, whether or not the head of cows loaded Ranch, and removed from the Bowler October under such writ of execution levied Sheriff Van- noy, sufficiently being were identified as the herd of generally “Belanger” cattle known as the cattle. It is any persons doubtful whether of the when the present upon cattle were seized execution Sheriff pains took or care-to determine and with cer- positively tainty dairy cows, per- whether as to each of such they, them, could or sons did state that or either of certain of their identification. claimed, by
Mr. Vrenon hand,” “sweep “Belanger” there, that the cattle were and were owned by him, Vrenon, because he had transferred them to the Bowlers, and question had The paid. latter opinion, we will refer to further on in this but question may say of identification we Mr. point out, by earmarks, brand, Vrenon undertook to specific description, otherwise, particular as to dairy cow, accurately sufficiently that he had checked nothing he had identified it? state that We find from the record he had so. Mrs. done Stella Leonard *14 forty-one (41) to check as to the entire head
attempted Vannoy acknowledged dairy cattle, of but Mr. she find had not been able to fifteen of them. Instead of “general identification, actual she had made a apparently guess” upon toas a herd of cattle that should be found Banch, deemed, generally, and should to the Bowler formerly part character were be of the kind and a Belanger Certainly, of Mr. Coleman had no cattle. knowledge him, would actual enable with cer- proper tainty to establish identifica- particularity Vannoy, duty a Sheriff it to tion. whose was make dairy each of such minute and detailed as to inspection rights cattle, obey in law order protect to allege involved, merely to adverse seemed interests cattle, generally supervision and removal of as to the actually any particular made fail to find that he but we stating justify inspection him in that he had such as to diligent careful, any painstaking and deter- really made certain of sufficient identification mination such as to be. to each of cattle. such question next The to be considered is as to whether not, Vannoy, notwithstanding respondent or fact that the their ranch in said premises Bowlers cattle, right dairy in actual such with the possession thereof, right- possession, ownership claim of fully wrongfully to or entitled take such premises by to and remove cattle from said seize such Leonard, formerly reason the fact Stella B. Belanger, Leonard had known as Stella B. caused to be execution, placed in his writ of dated October hands a 21, 1949, judgment in which upon a predicated effect, alleged alleged was, that certain cattle have to forty-one herd of the identical cattle a comprising and one Holstein bull had been head cows adjudged to Leonard’s cattle? have been Stella plaintiff, or B.
And did Sheriff Stella appeared in the Leonard as she court below case No. right attorneys, any justifi- her lawful or or have cattle be seized removed cation cause such any notwithstanding that neither of the Bowlers were they parties respect action No. nor had such execution, legal been served as to said process judgment? toas According us, testimony Mr. before testified, effect, long Vrenon that some time prior October, day 1949, upon the 21st which both judgment and said execution were filed case No. according which, testimony, a to Bowler’s was at early August, 1948, in the month of
time and which was undisputed, transaction A. occurred between Milton (and Bowlers) they perhaps Bowler both the in which *15 “Belanger” purchased said cattle. The Bowlers and agreement Vrenon acted the basis of an of upon pur sale, written, chase and whether oral or not does appear, by but, least, at a written bill of was executed sale placed is testimony Vrenon and in escrow. From the agreement apparent by that of both Vrenon and Milton Bowler, A. the cattle were delivered to the Bowlers placed upon Bowler in their the said Vrenon Ranch. It further that did not receive appears Childers, cattle until from H. M. a bill of sale said agreement 10, 1948, likely September an writ but most and Vrenon ten or oral had occurred between Childers prior sale, bill of the execution of the actual there as from testimony no indication shown the is that some agreement arrangement or suitable had not occurred prior them to the transaction between between Vrenon early August, 1948, and the Bowlers nor that the were not authorized to take Bowlers over from them the taken cattle which had been over Vrenon from nothing the There is which appears Childers. that legitimate, other than a transaction was bona fide trans Indeed, testimony the fact Vrenon in action. his ownership because, cattle he claimed the of the as claimed, they paid had not been arid Bowlers they belonged he considered to him was apparently merely conception of the his own transaction. Under circumstances, payment the matter would not such equitable passing from title to the cattle
prevent sale, Bowlers, whether or not the bill Vrenon to placed escrow, actually had delivered so question legal factors such as the title effected. Other essence of or not time was made as to whether dependent involved, agreement, would doubtless be agreement, and written whether terms upon relationship hand The of Vrenon on the one or oral. other, disagreement in case of and of Bowlers bring litigation them, might between but neces- as Belanger Mrs. others, former sarily or the as to aught Leonard, Belanger, Childers. From Mrs. or now evidence, involved the transaction from the that appears Bowlers, and entirely Vrenon and one between nothing being apparently the record to disclose there fide, genuine than a bona was other that the transaction knowledge part transaction, by a on the unaffected connivance, or fraud conspiracy, the Bowlers detriment of action tortious improper other Leonard, formerly B. Leonard known as Stella B. Stella cattle, “Belanger” Belanger, as to the transfer legal was, presumption so-called, as to the well-settled taking Bowlers, transaction, into the said forty-one head of cattle the said their possession, rightfully, bull, lawfully so Holstein did and the one acting wrongfully. in such unlawfully and One and not *16 become, rightfully transaction, vested who has right possession must possession property, and the right, contrary appears the until the deemed to have be high determined, very judicially position and is given person value who has innocent third of an any received, notice of property prior and is without the any duty, and he owes equities as to which equity or good in faith. he has acted enjoy in as we civilized conditions such Under enlightened prin America, under the United States equity, actions and conduct and ciples law of common' transactions, must involving relationships human wrongful, rightful at least rather than presumed to be be contrary clearly so, until the If appears. that were not person the individual reasonably could not be secure enjoyment right of his Without the property. to be heard, any equity nor without at any suit law or or pro- ceedings having- against been filed him of which he has given notice, property easily his could be thus confiscated. But because of such civilized principles, necessary beneficent and application, great in their right liberty constitutional life, provisions, such to property, violated, contrary or must not be but on the carefully sedulously be must preserved.
So, proceeding in the instant in case No. and in view of the record before us in this mandamus proceeding, we do not find as to the Bowlers sound legal Vannoy justified basis upon Sheriff taking removing from the and upon Bowlers their consisting forty-one premises the cattle head of bull, cows and one Holstein which at one time had belonged others, litigation and as whom had been others, had between some but not as to the Bowlers. litigation
As No. there can no doubt had Leonard, occurred formerly between Stella B. B. Stella Belanger, hand, Leonard on B. the one and David Belanger, Childers, H. M. Vrenon Vincent other, parties parties and that above-mentioned were action, judgment execution, copy in that and that a proceeding, of which were attached to the instant were filed, 21, 1949, October and that such execution was placed Vannoy hands of Sheriff to be enforced. fact, however,
That could not and did affect rights Bowlers, parties of the who were not to such action, Vannoy levy nor entitle Sheriff under said execution, mentioned, the cattle above which were Bowlers, and who claimed that such rightfully who possession, cattle in their ownership them. asserted in and to stated,
It has often been an reiterated that properly execution relation to cannot be property person stranger, levied of a third property *17 100 Upon levy, party. whom a
to he is not at such time right possession party the or the basis of such third stranger proceedings right the had immediate to possession, required file not even to assert or was generally See what is known as a claim. third-party 386; Heaney, C.J.S., Executions, 168, p. Haubrich v. sec. 92, 161 Minn. 930. N.W. executions, upon sheriff, levying
As to if a claimant, party an execution is notified that the or third ques ownership to property asserts possession tion, retaining yet possession, the sheriff insists upon trespass trover. he is liable to the true owner Hickman, 90 Am.St. v. 132 Ala. 31 So. Pilcher Rep. 930. Ed., pp. Executions,
2In Freeman on 2d sec. Lyon Goree, 799, 800, 15 Ala. v. reference is made 799,- pages 800 has 360. learned author on said The specific though writ, for the stated: “The possession describes, may command the officer it chattels which so, If possession of defendant. them from the take goods taking from the justify him in it does not they stranger whom a the writ belong.” testimony
In the in the matter proceeding, instant Judge Guild’s of mandamus No. 4272 of the writ that, upon A. court, the occasion of Milton discloses during visiting Vannoy office, Sheriff his at or Bowler béing loaded, pursuant cattle were the time the execution, Bowlers, levy Mr. a friend of Fallon, Nevada, also visited such office Price Ronnow Johnson, suggested calling James W. time at County, attorney attorney Esq., of Churchill district Nevada, who had been concerned as attor- private but 4110, in ney, defendants in No. representing Belanger, David only therein defendants Vrenon, M. and Vincent does H. Childers representing then Mr. appear Johnson event, testimony shows at such In Bowlers. came at Mr. Ronnow’s place, Mr. Johnson time *18 request, definitely that, Vannoy stated to Sheriff right before he had the to take the said from the cattle Bowlers, or Banch, he, from the Bowler Sheriff require good would have to that a and sufficient bond undertaking by or be furnished him or on behalf Leonard, Mrs. indemnify order to such in the sheriff premises.
But it appears Vannoy that Sheriff heed did not requirement furnishing as to such bond. On the contrary, point at one testimony, in the said, he in sub stance, to Mr. Bowler required give that he was not bond, and on or about that time stated to Mr. Bowler he, Bowler, injured if damaged or he could that, sue. It seems clear circumstances, under the to the third-party claim mentioned, hereinbefore the fact that such claim was not executed until October 1949, 25, duly (which, served very as it appears, was the Vargas, earliest in which attorney Mr. Bowlers, for the could be informed as to the action which had been taken by the sheriff and claim), properly prepare such would prevent liability in tort to have accrued or arisen on Bowlers, October on behalf of the because 21, 1949, subsequent date, at such October such third- 25, 1949, party executed,, claim was thus served and filed. words, damages resulting
In other from the alleged wrongful waived, conversion were not nor was stayed, the actual conversion from the date on October third-party 1949 until the claim was filed and served 25, 1949, awaiting claim, third-party October such damages the reason that such conversion legally may was, view, clearly have resulted in our wrongful tortious, continued It has to be so. require third-party
did not claim to establish it in instance, being subsequently the first but estab- judgment, lished evidence and a valid competent already existed, tortious cause of action that had would continue to exist until such an action had been filed and granted proved, judgment dismissed, or had limitations, become barred the statute of under sec. 8708.01, N.C.L.Supp., justi- vol. and sufficient sureties judgment fied and the bond If in favor of approved. adjudged, had been under petitioners such third-party statute, fees, damages, liability, claim doubtless such costs and counsel fees as would have otherwise applicable, superseded by would have been properly damages accrual of such as would doubtless have been adjudged third-party under the claim statute. formerly Leonard, plaintiff,
But the Stella B. Belanger, known as Stella B. Leonard in case No. *19 claim, third-party failed as to said to for such provide disregarded making Vannoy entirely bond and Sheriff any plaintiff give upon demand the “to the an sheriff undertaking good by executed at least two sufficient equal sureties in a sum to double the value of the prop erty 8708.01, quotation N.C.L. levied on.” Such is sec. 2, vol. mentioned. above Supp., Consequently, having undertaking the bond or not given by sheriff, Leonard, the Mrs. plaintiff, having so, sheriff, and she failed do the in accordance claim, third-party pursuant statute, with such to said 8708.01, N.C.L.Supp., 2, required sec. vol. was to release Milton A. Bowler and property Milton D. Bowler.
In first third-party the of said paragraph claim statute, being 8708.01, containing words, same sec. the days give “fails within five after written demand to the undertaking,” etc., provision sheriff an the as to the term “written demand” relates such a written demand California, In the sheriff. the similar statute in language is almost verbatim as the same in our said statute, provision the referred to as to “written demand” mean, plain construed to that such demand is the may be made the sheriff a tiff as matter of his pro tection, required but sheriff is to demand such event, plaintiff, “if the bond. In or the person runs, whose favor the writ of attachment within fails give days five after written demand to the sheriff an * * undertaking. provision *”—it is manifest if the otherwise, construed to be the sheriff could make impossible abortive or party “the require- third claim” compelling ment wrongfully release of the property taken party from the claimant, third if the execution or attachment plaintiff days “has failed within five give undertaking.” such bond or That is made clear Superior Duncan v. California, Cal.App. Court of 218, which, page 221, 734, 285 P. on page Sturtevant, J., stated: “Where has been levied property on it is clear party may the third claimant make an attempt to have attempt may it released and that such fully (unless gives plaintiff made and the under- taking paragraph 1) specified effectually accomplished within days a period levy. of five Nothing after the but undertaking execution stay will .said plaintiff gives hand. If undertaking sheriff’s provided for in petitions and if he paragraph also hearing important for in provided paragraph questions legal hearing as to the effect of the will arise passed which should they duly not be on till have been presented proper give in a case. If he does not undertaking provisions the statute contains no that the stayed, may sheriff’s hand will be nor that he later may retake the impound nor that the property, court *20 petition heard, until a been property has nor that there- any looking after the court can make order toward the retaking property.” (Italics ours.) the provision 3598,
The involved in this in No. proceeding Nevada, in relation to the claim third statute in party 8708.01, N.C.L.Supp., 2, is sec. vol. to which reference made, particular paragraph has been above and the provision therein is sec. The identical in Califor- 210%.
nia is of sec. 689 of the Code of Pro- paragraph Civil cedure, as amended in 1929. only
The difference that in is said paragraph 1 in the provision, California Code the reference is to “writ of execution,” whereas, the same paragraph is Nevada 210%, sec. and reference the is to “writ attachment.” of attach-
But the terms “writ of execution” and “writ interchangeable Act ment” our Civil Practice are under provisions question. as the identical Nevada to 4110, indicated, No. plaintiff As above the undertaking having to the sheriff furnished a bond statute, 8708.01, third-party under claim sec. N.C.L. such 2, and Supp., appearing from the evidence vol. and proceeding 3598 that the law involved in No. this wrongfully and taken cattle above mentioned having Ranch, and it been removed from the Bowler statute, by claim such third-party determined us that sufficiently effective, 8708.01, sup- and sec. is valid and that, ample authority, by ported pursuant and plain- having statute, by the furnished no said bond claim, party executed third tiff in with such compliance served, aforesaid, it follows that on October and and one Holstein forty-one cattle head of said bull, unlawfully removed from taken and have and premises, Bowler Ranch should said immediately failure to furnish after such been released undertaking sheriff, that, said said such applicable, law must be view of the facts petitioners, Milton A. Bowler Milton returned to Bowler, Bowler Ranch to the said without premises, D. commencing delay. that, further October It follows continuing court, by ordered this until converted, thereof, cattle and each and all have been said sheriff, respondent, wrongfully, Ralph Nevada, use, County, and to to his own Churchill Leonard, formerly plaintiff, known as B. Stella Belanger. Leonard B. Stella B. The fact Stella Leonard was attorney,' Sinai, Esq., her John S. his assist advised Coleman, others, perhaps ant Mr. cause said petitioners thus removed from the and their cattle premises, and to Ranch and deliver them to the Bowler location within premises plaintiff county Churchill, Nevada, or elsewhere within *21 the said Nevada, by of the fact as it been reason has the State of alleged, there- the said cattle were taken and removed filed, having prior third-party from claim been 25, 1949, thus absolved October and that was plaintiff operation third-party the from the and effect of said mentioned,' statute and same was claim above the ineffective, sheriff, nor the and neither the said required to and return said cattle was release plaintiff premises, is is and their untenable. It Bowlers converted, clearly they and thus con- found that were 1949, 21, converted, October and tinued to be since so wrongfully. action, thereafter, unlawfully Such and sheriff, Vannoy, therefore, Ralph by J. taken the said totally effect. and no was unlawful and void said, may equally, be The same reason of fact execution, a so-called Return such writ of 1949, 22, returned, October was 1949. filed November sheriff, part and act conduct said could Such rightful any action not be converted into or valid Bowlers, against as no action could have law- fully nor such cattle taken as to their said property, against their and with- removed from their will premises fully consent, above and their for the reasons shown out notice, deprived all They were and set forth. right heard, part such action on the to be and arbitrary, wrongful unlawful, sheriff without due process.
Consequently, necessarily follows that said cattle unlawfully wrongfully were thus converted regardless of the physical location or said sheriff county Churchill, premises within the said and to found, removed, they they may or where were 21,1949, they continuously on October and that entirely possessory now are property have been and sheriff, Ralph petitioners, and that said commencing has, day of Octo- on the said 21st date, present been in the ber, con- until possession of the cattle. structive Am.Jur., p. 249, sec. connection see In that Summer, following: v. 16 N.H. citing Chadbourne *22 106
129, 720; 41 Elwell, Am.Dec. v. 14 Ohio St. Phillips 240, 373; 84 Matson, Am.Dec. Evans v. 88 Pa. Am.Dec. 584.
Finally, we must not consider whether or mandamus is in the instant appropriate proceeding, dismissed, whether or not the alternative writ should be may or that same be made permanent. mandamus, chap. 73,
Our N.C.L., statute as to vol. 9243, provides: sec. 754. shall be issued This writ “§ in all plain, speedy, cases where there is not a and ade- quate remedy ordinary in the course of law.” existing
In view of the situation in the instant pro- ceeding, circumstances, they and the facts and now reasonably appear, it appears reasonable to conclude that speedy, without this writ and ade- providing plain, quate remedy, ordinary such other remedies in course unavailing. of law would seem Bowlers, seeking If extraordinary instead of this writ; action, had proceeded delivery a claim and replevin, expensive prolonged similar to litigation probably resulted, would prevailing, have their would, best, business at the have been then or would thereafter very largely have become if crippled, destroyed. damages If it were assumed that would prove sufficient, instance, even in that we must be able reasonably through damages, to assume that such action, they feasibly again could petitioners’ commence undertaking, which, to restore or rehabilitate their how- ever, might prove highly coupled uncertain. And damages situation, hoped suppose, should insolvency not be recoverable because of or other inabil- ity plaintiff, provided on the of the part the Bowlers establishing judgment. appears succeeded in It proper remedy that mandamus is the under the circum- that, is stances. It contended inasmuch as the honorable judge judicial court, district in the First district in and county Churchill, petition for the decided to dismiss a for writ of mandate in a similar former proceeding court, petitioners are precluded this court doing by from so judi- virtue of res ad principle cata. We do not so decide. The former decisions court, this which we plainly should follow unless errone- ous, clearly phases have ques- out pointed some Sugarman at tions issue. In the case of State ex rel. v. Lamb, 907, 910, referring 37 Nev. 138 P.
principal question, is, effect, that, stated good bond, absence of a property sufficient should be redelivered and returned from whom party *23 case, In taken. that it made little difference whether or proceeded originally not the parties in a claim and deliv- ery action, action, by without former one stranger proceeding, point to the so far as the now involved is concerned. Mandamus held the was appro- priate remedy wrong- the had property that undertaking fully taken, been because no sufficient retaken, furnished, had been must be redelivered wrong- party returned to from whom it had been the fully case, supra, taken. In in the that Mr. opinion stated, Justice McCarran as follows: delivery
“In an action for the officer claim after the between has taken of property, parties the of the time and time it delivered to either is action, custody in of law. The to the the is property wrongful property delivery to either party of the sheriff, The does relieve it from this rule. the action not charged law action of is under the with in an this kind delivering duty ultimately the to one property the of litigation. Jacobson, parties 7 of the to the. Welter v. * * * 65, Am.St.Rep. 632. It fol- N.D. 73 N.W. 66 lows, the property, where the record discloses sheriff, although the wrongfully put out the hands may, county, and it is his within the the sheriff is still duty, to retake the property.
“Where, delivery, prop- in claim and the ah action in by erty seized a sheriff and released to is afterwards the forthcoming bond, upon a it is still in the defendant custody instituted, the' of the court in which action was custody to abide remains the that court the case, Cyc. the replevin
result of suit. 1381. In this p. having erroneously property sheriff released defendant, by as after that was taken him property court, contemplation of the of the an officer it is still in possession. law in his control and “It from the record case is manifest this defendant, delivery, in the in claim and failed to action of the notice with terms statute that no comply given plaintiff, under- to the and the sureties on the taking justify, prescribed of defendant did fact, practice 188 of In section the civil act. on the part compliance defendant, there was no sheriff, upon duty It was statute. therefore necessary taking receipt of fees for and the his lawful property to deliver expenses keeping, plaintiff.” Lamb, question
And in State of whether supra, v. having mandamus, an another alternative writ having court, writ been been dismissed and another such court, judicata, is has res this become instituted having pre- “(2) matter treated as follows: This sented to court below affidavit application commanding the sheriff for a writ mandamus *24 property the and that court the to plaintiff, deliver judgment having writ, our refused the it is to issue petitioner in district exhausted remedies the the has his deter- to have the matter heard and court is entitled Collins, State, Johnson v. this ex rel. mined court. supra 526, 110 Mont. P. 526].” [41 Murphy,
In the ex Keane v. 19 case of State rel. page 95, p. page is on 6 840 Nev. it stated P. (also in the case of ex referred to State v. rel. Sears Wright, 167, 175) as 10 Nev. follows: mere fact “‘The necessarily lie that an action or will does not proceeding remedy by the mandamus. The relator must supersede adequate, legal only specific, remedy, a have but upon very one to afford relief it must be the competent subject-matter and if it of his be doubtful application; whether such action or will him a com- proceeding afford plete remedy, writ Sears the should issue.’ ex rel. [State 175; Wright], v. [167], v. 10 Nev. Babcock see Goodrich, 488.” 47 Cal. referring
Digressing moment, for the possibility, probability, fact even that there is a petitioners damages may the feel constrained seek alleged wrongful respondent action of because of the the sheriff, concern in the Ralph premises, ing petitioners prayer have in of their which the petition sought remedy damages, that, true under cer the is circumstances, damages upon tain are recoverable pro Nevada, ceedings being had in mandamus. This court as a mandamus under the statute proceeding following: N.C.L., the has stated “§ vol. sec. Ques- Question Of 9247. Answer Raises When Fact. — made, Jury. tion Before If an answer is Tried 758. § question a to matter fact essential which raises motion, affecting the sub- the determination the supposed rights parties, and stantial allegation application a for truth of the of which discretion, based, may, order court in its writ is argu- postpone jury, and question before to be tried a had and the verdict certified ment such trial can be until distinctly question tried shall be The to be court. trial, county and the shall order for stated in the designated order had. The in which the shall be same damages jury which may to assess direct also sustained, they find for may have case the applicant him.” prevail many But other states.
Similar provisions practice in our this court to provide it has not been hearing of controversial matters of fact court, necessitating hearing supreme and trial evidence, witnesses, determination of production etc., procedure into that of would convert our *25 resort, appellate court, court instead of the of last trial that, two courts confuse the functions so view, line our a clear of demarcation would such con- fusion, overreaching overlapping, largely undermine complexion the traditional characteristics of carefully least, past those tribunals. At have in we therefore, view, observed such demarcation. It is our attempt recovery that instead an to of resort of damages in this mandamus in this court that proceeding action, may or suit be instituted and proceeding proceeded may court some other or tribunal as be appropriate. regard question
In per the title of the namely, sonal property, the cattle involved as between hand, B. Stella Leonard on the one and the Bowlers on other, appear necessary, suggest it does not even to proceeding by this only that writ mandate is purpose restoring quo, that, say, the status is to that because, legal rights in view of the facts and the principals applicable, cattle not have should taken been from the Bowlers and Bowlers have been deprived possession by sheriff, of their Ralph Yannoy, legal due posses without their process, they came, must be sion returned from whence legal placed, position in such contemplation, or situa they tion as that in which were before the sheriff unlaw fully Hence, proper state, converted them. it is we believe, province duty not our or is to indicate ownership, title, such matters as to actual or or the lack it, may as nor matters as to which heretofore appear, parties rightfully, wrongfully, certain have acted or honestly fraudulently. parties, or or Either both with suggestion here, any free, course, even are out delivery, by supplemen resort claim and proceedings tary execution, claim, party third perhaps or action, they may suitable suit as proceeding, other expedient properly may conclude and appropri premises In the ate. instant based proceeding, having duly considered, the facts and the law it is hereby forty-one (41) ordered that certain head (1) bull, aforesaid, dairy cattle and one Holstein *26 which were unlawfully wrongfully, day on the 21st October, 1949, of by Ralph Vannoy, J. sheriff of the county Churchill, Nevada, State of taken and removed possession from the of Milton A. Bowler D. and Milton Bowler and from the premises known as the Bowler county Ranch in Churchill, the said which, with- right authority, out or Ralph were converted the said J. sheriff, use, said to his own benefit and use, purposes Leonard, and benefit of Stella B. for- merly known Belanger, as Stella B. Leonard and perhaps others, which, nevertheless, Ralph Vannoy, J. said sheriff, was, is, constructively possession still dairy said bull, cattle and one Holstein and that such dairy every cattle and each and head thereof have con- structively remained, remain, and continue to shall be immediately forthwith Ralph returned the said J.
Vannoy from wherever said cattle and each and every physically may be, head thereof whether one at place, places location or or several or locations within county Churchill, regardless Nevada, said State of presence may of the persons other or person who physically charge cattle, be of said but as to whom all agents shall persons be deemed to Ralph Vannoy, sheriff, said Ralph J. and that the said Vannoy, sheriff, being J. in the constructive possession thereof, returning cattle, take, thus said shall con- vey taken, same, and conduct the them cause to be conveyed and conducted to A. Milton Milton Bowler and Bowler, D. their known Bow- premises said Ranch, cattle, ler and then and there to redeliver said every thereof, thereby placing and each and head said fully cattle in the Bowler of said Milton A. Bowler, reestablishing thereby
and Milton D. quo.
status hereby Vannoy Ralph It is ordered J. sheriff, individually, as such fully shall be and com- pletely responsible carrying for the out of said writ delay without undue mandamus and with due and diligence. prompt hereby
And it is further ordered that said alternative hereby writ be and is made permanent. J., concurs.
Eather,
Badt, reluctantly
I granting concur the order the writ (1) I of mandamus because fear that the asserted inade- *27 legal quacy case; ways of remedies both works in this (2) I am because not convinced that the execution issued Belanger Belanger, in B. Stella Leonard v. and Childers Vrenon, following case, judgment the form in the ordering delivery the immediate of the to the livestock plaintiff contemplation is within the of the third-party (though pointing claim no the statute authorities out ; grant- presented) (3) have distinction been the because ing of the writ of mandamus which effect orders take cattle from the Mrs. sheriff to possession Bowlers, Leonard and deliver the same to the in a pro- ceeding subject a to which Mrs. Leonard is not party, is we to the as the action of the same criticism sheriff which condemn, namely, taking his of the cattle from pursuant of the virtue of a writ Bowlers judgment a action to which the were not an Bowlers opinion judgment parties; (4) our and in this because conflicting nothing proceeding can determine as to the parties conflicting and because claims claims of such yet determined; (5) because, view have not adjudicated of the fact title to the cattle was to be (the against prior Leonard in two actions first Mrs. him, against and the second her husband Childers Vrenon), quo I am in doubt but that an earlier status than the at the should be status time of contemplated However, the cattle. sheriff’s seizure of these despite doubts, I do free dissent not feel view Lamb, Sugarman holding ex rel. of this court in State v. Sheriff, 138 P. in which court 37 Nev. this plain- the sheriff to return commanded to the mandamus replevin property thereto- sheriff had tiff in defendant, because the latter had fore returned statutory requirements to obtain failed comply Conceding return. between distinction duties under duties under replevin sheriff’s his involved, judgment of a such as here execution the one reasoning analogy case, this court in that the other authorities cited in the opinion well as justice preclude my are dissent. chief sufficient Reopening Petition for Order for Submis- On Case Argument and Further of Evidence sion Rehearing.
March
Petition Reno, Morley George Vargas, Griswold L. both of for Petitioners. Haight, Sinai, Reno, Fal-
John S. Andrew L.
lon, for Respondent. Court,
By C. J.: Horsey, *28 Respondent a has filed “Petition for Order 75-page Case Submission of Reopening Evidence and Further Rehearing” Argument severely which the court is (1) determining to task for taken adverse claims to title proceeding (2) (3) incomplete in a mandamus on an (4) opportunity respondent pro record without proofs (5) duce a misconception such evidence as was adduced. The conclusions our reached us in may Respondent former condensed opinion to this. against ordering
sheriff, Yrenon, armed with a writ Leonard, respondent Mrs. deliver certain livestock to Bowlers, found the cattle who action, writ or to the and who parties right possession. claimed title and It was sheriff’s mandatory duty, in the clear absence of process against Bowlers, respect place directed the first right claim claim of title and to. possession, their place third-party in the second to honor their claim 114 bonding- against Leonard’s it and in default Mrs. proceedings third-party claim
the absence under the Such our statute. is still conclusion. Our issuance peremptory proceeding. this writ terminated See 124, Mandamus, 386. is Am.Jur. sec. The petition denied. JJ.,
Badt concur. Eather, FURNITURE, HARRAH, Appellant, HOME JOHN v. Respondent. Corporation, Incorporated, No. 3593 February 14, 1016. P.2d 1950.