31 Nev. 481 | Nev. | 1909
Lead Opinion
By the Court,
The record on appeal in this cause does not contain an undertaking on appeal, but, in lieu thereof, counsel for the
In the case of Marx v. Lewis, 24 Nev. 306, this court specifically held that air undertaking on appeal could hot be'waived. We quote from the opinion in that case the following excerpt: "The method of procedure in taking appeals is regulated by statutes. Section 327 of the civil practice act (Comp. Laws, 3422) in direct terms confers authority upon this court to review judgments and orders from which appeals' can be taken in the manner prescribed in the act, 'and not otherwise.’ * * * Under the language used in these sections we have no power or authority to review any question presented in this record. The attempt to stipulate a waiver of the notice and undertaking can be of no effect, for the reason that such attempt is doing that which the statute says cannot' be done. The language used 'and not otherwise,’ precluded the intention of conferring authority to 'review appeals under such stipulation as completely as it would were such intention expressed in direct terms. The same may be said of the language used in section 341, sivpra, requiring the undertaking to 'render an appeal effectual for any purpose.’”
Authorities may be found that an undertaking upon, appeal may be waived, and a number of these so holding are cited in the prevailing opinion in the case of Smith v. Wells Estate Co., 29 Nev. 411, 416. Whether or not any of the authorities cited are opposed to the decision of the question heretofore rendered by this court would depend upon the provisions of the statute controlling in the particular case. Authorities also exist taking the same position as the Marx v. Lewis case, swp'a; for example, the case of Santom v. Ballard, 133 Mass. 464. The court is inclined to the view that a more liberal
For the reasons given, the appeal is dismissed.
Concurrence Opinion
concurring:
With some reluctance I concur in the judgment, for the reason that this court so construed the law in the case of Marx v. Lewis, 24 Nev. 306.
The construction given follows more strictly the letter than the spirit of the practice act. In using language stating that an appeal shall not be effective for any purpose unless an undertaking is given, the legislature evidently wished to protect the respondent in the recovery of his costs if the appellant was unsuccessful on the appeal. By the use of this language it is doubtful if the lawmakers had any intention or purpose of preventing a respondent from waiving the provision, which was inserted for his benefit, and especially so when proper effect is given to section 71 (Comp. Laws, 3166), which provides that "the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the parties.”
Clearly it was intended to give the respondent the right to insist upon being protected by a bond on every appeal, but no good reason appears to me why he may not waive this provision for his benefit. A waiver might be of material advantage to the appellant, and save him the inconvenience of furnishing an undertaking, and at the same time work no injury to the respondent, if he is satisfied that the appellant is able financially to meet any judgment which may be rendered or affirmed against him by the appellate court. Although having high regard for the great learning and ability of the Supreme Court of Massachusetts, I am unable to see the weight of the conclusion reached in the case cited from that
So far as I am aware, an appeal bond is required in all the state and appellate courts. Nevertheless, it has often been held that the undertaking and other requirements may' be waived. The word "waiver” implies that something may be relinquished.
In Kingsbury v. Buckner, 134 U. S. 681, 10 Sup. Ct. 648 (33 L. Ed. 1047), the court said: "It is further contended that the Supreme Court of Illinois could not entertain the appeal from the decree dismissing the cross-bill of Buckner and wife without an appeal bond being executed by them, and that it was not competent for Beckwith to waive the giving of such bond. * * * A mere failure to execute the bond within due time may be ground for dismissing an appeal, but does not deprive the court of the right to proceed to a determination of the appeal. So here, the waiver by the infant’s guardian ad litem and next friend of a bond by Buckner and his wife upon their appeal—the latter having waived an appeal bond on his part—did not affect the jurisdiction of the court. And such is the rule of practice in the Supreme Court of the United States. (Edmonson v. Bloomshire, 7 Wall. 306, 311, 19 L. Ed. 91; Richardson v. Green, 130 U. S. 104, 114, 9 Sup. Ct. 443, 32 L. Ed. 872; Evans v. State Bank, 134 U. S. 330, 10 Sup. Ct. 493, 33 L. Ed. 917.) The cases cited by counsel from the latter court do not announce any different rule.”!
In Dillinghan v. Skein, Fed. Cas. No. 3,912a, Hempst. 181, it was said: "The parties having appeared before that court, and the appellee making no objection that an appeal bond
It was held in Ross v. Tedder, 10 Ga. 426, that it was competent for the parties to appeal by consent without giving a bond, and in Gardner v. Investment Co., 129 Cal. 528, 62 Pac. 110, that by joining in a stipulation for additional time defects in a single undertaking given on two distinct appeals were waived.
In Weidner v. Matthews, 11 Pa. 336, Norris v. Monroe, 128 Mass. 386, and Engle v. Rowan (Tex. Civ. App.) 48 S. W. 757, it was held that objections to recognizance on appeal must be taken within a reasonable time or they will be considered as waived.
In my judgment, if the question were before this court for the first time, a construction opposite to the one given in Marx v. Lewis, supra, ought to be applied, but under the circumstances it would be better for the legislature to amend the statute.
Rehearing
On Rehearing
By the Court,
Following the prior decision of this court in Marx v. Lewis, 24 Nev. 306, this appeal was dismissed upon the ground that an undertaking on appeal was an essential statutory requisite to invest this court with jurisdiction, and that such undertaking could not be waived. Upon our attention being called on petition for a rehearing to the fact that all of the statutory provisions having a bearing upon the question were not referred to or considered in the Marx v. Lewis case, supra, a rehearing was granted. By section 348 of the civil practice act (Comp. Laws, 3443) it is provided that "in all cases the undertaking or deposit may be waived by the written consent of the respondent.” This important provision of the statute appears clearly to have been inadvertently overlooked both by the court and counsel in the Marx v. Lewis case. Section 10 of "An act relative to attorneys and counselors at law” (Comp. Laws, 2621) provides: "An attorney and counselor shall have authority: First—To bind his client in any of the steps of an action or proceeding, by his agreement filed with
This is an appeal from the decision and judgment in favor of the plaintiff, respondent herein, and from an order denying defendants’ (appellants herein) motion for a new trial. The only point urged upon the appeal is that the decision and judgment of the trial court is not supported by the evidence. This action is in claim and delivery to recover the possession of certain personal property consisting of a stock of wines, liquors, and cigars, bar fixtures, and certain other saloon furnishings. The property in question was attached by the said sheriff of Nye County as the property of J. H. Hoffman, a brother of the respondent herein, in an action instituted by the appellant A. J. Pommer Company, against the said J. H. Hoffman and two others on the 8th day of February, 1907. Proof was offered to the effect that on the 21st day of January, 1907, the said J. H. Hoffman executed and delivered to the plaintiff a bill of sale of the propérty in question, together with the saloon business conducted by him, and known as "The Hoffman” and an automobile, in payment and extinguishment of a prior existing debt in the sum of $5,250 owed by him to the plaintiff. The said bill of sale was thereupon filed for record and recorded in the office of the county recorder of Nye County at the town of Tonopah, where the property was situated "and the record in the recorder’s office published in the paper.”
After the making of the bill of sale, the plaintiff took possession and conducted the saloon business in substantially the same manner as his brother had previously conducted it. Both Hoffmans worked a shift as bartenders substantially as they had done before the execution of the bill of sale, with the exception that the respondent acted as proprietor and J. H. Hoffman worked upon salary. The only sign about the
The action brought by A. J. Pommer Company, against J. H. Hoffman, was for an indebtedness contracted by the latter’s wife while engaged in conducting a music store in Tonopah. Both the plaintiff and the said J. H. Hoffman testified that at the time of the transfer they were unaware of such indebtedness, and that the sale and transfer of the property in question was not made to hinder, delay, or defraud any creditors of either J. H. Hoffman or his wife.
It is contended by appellant that the evidence was insufficient to establish a valid sale of the property in controversy as against the creditors of J. H. Hoffman under the statute of frauds. Section 64 of an act concerning conveyances (Comp. Laws, 2703) provides: "Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of things sold or assigned, shall be conclusive evidence of fraud, as against the
This court in Tognini v. Kyle, 17 Nev. 209, 212, 45 Am. Rep. 442, said: "In sales of personal property the statute requires that it must be taken into the actual possession of the vendee in order to be operative against the creditors of the vendor. This requirement of the statute is based upon the principle that permitting the former owner to remain in the apparent ownership of the property may be the means of giving him a false credit. There is no difficulty in the application of the statute to sales of personal property capable of actual delivery, as, for instance, in the case of the sale of a few bushels of charcoal, but the application of the statute to sales of cumbrous property, such as twelve thousand bushels of charcoal, has been fruitful of litigation. What will amount to a change of possession sufficient to satisfy the requirements' of the statute in one case .will fall short of its demands in another. Each case must be decided with relation to the character and situation of the property at the time of the sale.” The object of the section of the statute, su/pra, is "the prevention of frauds which would necessarily result from the practice of permitting the right of property to be in one person and the possession and all the indicia of the right of property being in another.” (Doak v. Brubaker, 1 Nev. 221; Wilson v. Hill, 17 Nev. 406.)
This case was tried before the court without a jury. No specific findings of fact were filed in the case, but the following appears in the written opinion of the trial judge: "The evidence in this case shows that the sale was made in good faith and without any Intention to hinder or defraud any of the creditors of J. H. Hoffman, and particularly the A. J. Pommer Company. Indeed, the evidence shows that neither the plaintiff nor J. H. Hoffman knew of the existence of the claim of the Pommer Company; the fact being that the account accrued for musical instruments and goods sold and delivered to the wife of J. H. Hoffman. If J. H. Hoffman had sold the property described in the complaint to some person other than his brother in payment of a debt amounting to
The only question which might be regarded as at all serious in this case is whether it could be said that the possession of the respondent vendee was a concurrent or joint possession with the vendor and not exclusive as required by the statute. (20 Cyc. 541.)
This court by Hawley, C. J., in the case of Gray v. Sullivan, 10 Nev. 416, 424, said: "It is well settled that the employment of the vendor in a subordinate capacity is only colorable, and not conclusive, evidence of fraud. (Godchaux v. Mulford, 26 Cal. 324; Billingsley v. White, 59 Pa. 466.) Certainly no stronger rule ought to be adopted against the employment of the mere servant of the vendor. The court, in Godchaux v. Mulford, discussing the question of the employment of the vendor, said: 'It was competent for the defendants to prove the fact as tending to show that there had been no actual and continued change of possession; but, when proved, it did not become conclusive of that question, * * * but only an element of proof to be weighed by the jury.’ ”
See, also, the case of McKibbin v, Martin, 64 Pa. 352, 3 Am. Rep. 588, cited with approval in Tognini v. Kyle, supra.
In the McKibbin case, the court, by Sharswood, J., said: "The law undoubtedly is that not only must possession be taken by the vendee, but that possession must be exclusive of the vendor. A concurrent possession will not do. 'There cannot in such case,’ said Mr. Justice Duncan, 'be a concurrent possession. It must be exclusive, or it would by the policy of the law be deemed colorable.’ (Clow v. Woods, 5 Serg. & R. 287, 9 Am. Dec. 346.) And, again, in Babb v. Clemson, 10 Serg. & R. 428, 13 Am. Dec. 684: 'There cannot be a concurrent possession in the assignor and assignees. It must be exclusive, or it is deemed colorable and fraudulent. To defeat the execution, there must have been a bona fide substantial change of possession. It is mere mockery to put in another person to keep possession jointly with the former owner. A concurrent possession with the assignor is colorable.’ But what is the concurrent possession which will be deemed such as matter of law? Evidently as owner, or accompanied with
It cannot, we think, be said from the facts in this case that the sale was fraudulent in law. It was the province of the trial court to determine whether it was fraudulent in fact.
The judgment and order appealed from are affirmed.
