*1 v. LOVE INCORPORATED LANDS LOVELOCK CO. DEVELOPMENT LAND & LOCK No. 2941 (2d)126. 2 P. August 1931. *2 Respondent: Hawkins, Mayotte Hawkins, & Appellant: Stoddard, & Cooke

OPINION By Court, Ducker, J.: appeal, transcript Motions to dismiss the to strike the thereof, appeal, parts the record on strike certain by respondent. A were filed counter motion was filed together. disposition appellant, all were heard Our necessarily dispose respondent’s motions will matter. court,

The case has been tried once in the lower before appealed judgment and the to this reversed. 140, 283 P. 403. Nev. 18, 1930,

Thereafter the trial court on December ren judgment pleadings, dered and at that made on time entry judgment suspended an order that be days period appellant a of ten within which time would amendments, permitted propose apply be or to might to the court for such action as it advised. appellant notice thereof served on on Written 19, Respondent December 1930. filed its cost bill 23, December 1930. Notice of motion to strike same was served on December and filed two days 22, 1930, appellant later. On December filed judgment. On motion to vacate December entry judgment respondent filed a motion for pleadings. appellant’s This motion and to strike judgment together bill and all cost vacate were heard Appellant’s the court on the last-mentioned date. motions were both denied on that date and *4 dismissed, option entered that the action be and that the agreement Upon mentioned in the action be terminated. application respondent, foregoing judgment of tunc, 19, pro was entered nunc as of December 1930. judgment appellant filed and served notice From this a

5 January undertaking appeal filed an of and on stay appeal following proceeding for on of on day. appellant Thereafter filed served a notice of February appeal 5, Later, on dismissal of the 1931. day, appellant appeal the same another

on filed notice of undertaking appeal from said and another on stay proceedings. appeal finally and for of The was thus February 5,1931. perfected transcript appeal on on y 22, April in was filed this court on 1931. Respondent appeal the transcript contends that late, support was filed too and in of his to dis motion supreme 2 miss invokes and 3 rules rules. court ground appeal argued This for dismissal of elaborately both the written briefs in the oral argument by respondent, counsel for but it not is stated specifically in the motion to dismiss. The reference to it in Excep the motion is as “That follows: said ‘Bill of appeal (Vol. 1)’ tions and record on was filed in above right authority, entitled court without or viola tion statutes of Nevada in cases made and provided, and in violation of rules of the above enti altogether general tled court.” This statement too ground Jeffers, be taken as a Peri motion. See v. 53 Quinn 49, 1; Quinn, 67-75, Nev. 292 P. v. 53 Nev. 292 620; Gray 436, P. Coykendall, et al. v. 53 Nev. P. 293 rulings for to that effect. In the cases cited we held such general fatally defective, opin statements and are fatally ion the statement before motion us is so defective. The courts of other states have taken same Barrett, Idaho, 465, 270-272; view. Jackson v. 86 P. Edmondson, 203; Cupit City Loucks v. 18 Cal. v. Park Bank, Utah, 40 P. 707. motion to dismiss appeal ground. grounds denied must be on this Other dismissing appeal but, specified, are these are grounds also stated as of a motion to strike the bill of exceptions they appeal, and record on will be discussed in that connections. support excep

In of the motion strike the bill tions, argued respondent counsel they granted, because, contend, must bill *5 6 judg- unnecessary appeal from

exceptions an a on was to ground in the motion not stated ment. This strike, be denied therefore the motion must and given denying the to in the reasons heretofore appeal. dismiss of

Respondent to strike bill also moved exceptions upon ground the trial court lost that not jurisdiction because it was to settle the same objec respondent filed days after its within five settled trial so It that court thereto. is contended tions by power of to reason section lost the settle bill exceptions, concerning reads which of act of 1915 bills of part: objection be heard and deter in shall “Such thereafter, days by (5) court and mined within five hearing designate in what the court shall such untrue, fails respect or or omits said bill incorrect or facts, that order and direct to state the true shall said determi in accordance with such bill be corrected nation, engrossed true facts as as contain the so to engrossed required, shall so said bill herein and when provided, in act and when be allowed and settled as this part of a of record settled shall become and be so objections party If the of adverse said action. disallowed, originally then bill as filed shall are immediately act settled and allowed be Comp. 9386, required.” Laws. Section Nev. Respondent points its that it filed and served out objection of to allowance settlement notice February 6, 1931, and no exceptions that bill of requested or and no time action whatever was taken granted said an within which extension time proposed exceptions settled until bill of should be objected 14, 1931, respondent at time the March which authority jurisdiction court of the district to the or hearing same; allow further settle or to excep- appellant’s application for a of bill of settlement time, March at which tions was continued to objected right court, respondent again open to the any jurisdiction court bill of said district to settle or exceptions action. in said “shall” the statute was think word We the. legislature directory used both a manda- directory designated, tory specific as to the time sense — mandatory required the act done. Gray Court, In the case of State ex rel. v. District 51 Nev. 278 P. where the trial court refused exceptions, to settle bill of mandamus was issued to *6 compel In such settlement. the more recent case of Sadlier, 292, Ratliff 53 299 v. Nev. P. we following provision held the of a statute to direc be merely: tory “Upon question by a trial aof of fact * * * given the court its decision must be within thirty days after the cause is submitted for decision.” ruling question The in the latter case is decisive of the here, presented principle. there is no difference Respondent also moved of to strike bill exceptions upon because the same was not served it. following exceptions indorsement is on the bill of appearing in the record: “Service of the within bill exceptions appeal of and record on admitted this 2nd day February, Hawkins, Mayotte Hawkins, of 1931. & attorneys for Defendant.” It is true that after the 2d day February, 1931, exceptions of and before the bill of by judge was settled and April allowed the district on by it was amended papers addition of certain and the bill as amended and settled was not served on respondent. respondent’s The additions consist of: notice pleadings; of motion for and order shortening hearing acknowledg time for of same and by attorneys appel ment of service of such notice for lant; copies decision, of affidavits of service of notice of order, of service of decision and of service of notice to judgment dismissing have terminating the action and shortening option agreement, costs, and time for order hearing. respond It for will be seen notice the authors of these documents ent’s counsel were exceptions, of therefore had added to the bill knowledge Moreover, perfect appears it same. by settlement from the certificate of allowance incorpora- judge respondent demanded the notice decision affidavits of service of tion of said incorporation was consented to and order. Their appellant. circumstances it is Under such counsel prejudiced respondent see difficult to how exceptions as settled. failure to serve bill of exceptions judge settling made order for the bill of no duty was under no to do so. its service as settled and require it. The statute does not exceptions A made strike the motion was bill together appeal (which, with the last notice record on undertaking appeal, appeal constitute tran on script appeal case), this for failure serve it before filing in court. This motion will denied for the this just given striking not reasons we have bill of exceptions. that, by It is true subdivision 3 of rule copy supreme of the rules of the service of transcript appeal required of the record on to be opposite party. made But the most we would substantially if rule dp were not observed would be compliance applying any to order therewith before other *7 remedy. where, case, But in there a tech is but rule, serving respond nical deviation from the such as not copies mentioned, papers ent with of the heretofore knowledge, respondent purpose which had full useful no ordering would be served in such service. following upon the also based

The last motion is exceptions statement, and said bill of to wit: “That appeal entitled court filed in the above record on was authority, right in of the stat violation without or provided, and in made and of Nevada such cases utes entitled court.” the above violation of the rules of respect in this because will denied be ground general as a considered statement is too to be upon the is also based of motion. The last motion by any ground judgment certified one “that no roll certify court rules the statute or authorized any judgment at time served roll was ever attorneys respondent herein.” respondent or judgment required upon a roll is not to be served taking appeal. respondent of an copies portion The motion to strike a of the certified against judgment roll is directed what is named original judgment copy as a first the record roll, against papers contained therein. all of judgment copy in the The clerk certified to a roll originally court, copy case as tried the lower to a judgment judgment roll as was rendered and pleadings. entered on the After reversal of the judgment respondent, appellant in this who was instance, supplemen- in the first filed an amended and finally complaint tal answer to the second amended amended, filed, and, pleading reply to which latter stated, judgment as heretofore was thereafter rendered pleadings. entered It will be seen there may papers in the be first certified roll that proper ques- are not essential to a consideration of the may appeal, tions that arise on this but as counsel for motion, respondent have not much insisted on this latter argument, in their either briefs or oral and as no useful thereby, purpose attempt will served we will not any, papers, if determine in advance which are not essen- tial, and strike them. be, respondent

It is ordered that all motions made hereby, grounds they are denied on all the stated. On the Merits

February 5, (2d) 1932. 7 P. 593. *8 Appel- Goodman, for Booth B. & Stoddard

Cooke lant: Respondent: Mayotte Hawkins, &

Hawkins,

11 OPINION By Court, the Sanders, J.: Upon specific performance. a in

This was an action (52 403), appeal in the Nev. P. former action plaintiff judgment of the on the merits the in favor reversed, remanded new and the cause was for was grounds: (1) erred upon trial That the trial court two concerning 'permitting testimony in transactions with persons represented the defendant since deceased who corporation; (2) a trial without that a denial of new its hearing the motion on merits or consideration judg- succeeding judge judge rendered the who him, reassigned error. the case to was ment and filing Upon remittitur in the court of this court’s an below, defendant, leave of filed with plaintiff’s supplemental amended and answer to finally amended, complaint, as second amended to which reply, plaixxtiff and the cause set trial. filed a for offered, day trial, any evidence was On the before orally judgment plead- the defendant moved for ings. Upon objection, motion was notice of writing upon plaintiff. The reduced to served plaintiff that the defendant would move was notified grounds: upon judgment pleadings on the three (1) pleadings facts plaintiff’s That did not state action; (2) plain- to a cause that sufficient constitute to pleadings tiff’s did facts sufficient entitle not state plaintiff performance specific of the contract made to subject (3) plaintiff’s plead- complaint; that ings the defendant is entitled demonstrate that judgment judgment of dismissal of the action and for terminating pleadings. in the contract counted on judgment granted and entered

The court the motion form, judgment pleadings. is unusual step in the of each taken that it contains recital motion, adjudged, proceedings from which it was ordered, and as follows: decreed entry

“That defendant’s motion be, hereby, granted; and the is same sustained and be, hereby, the above entitled action same is dismissed; option agreement, that said of date Octo- 20, 1917, ber exhibit A to said ‘Second Amended .Complaint, changed as altered and Amended/ July agreement the said of date C exhibit Amended,’ Complaint, said Amended ‘Second agreement option hereby, terminated; and said plaintiff the defendant do have and recover of the its taxed, costs herein the sum of $63.55.

“That, upon application defendant, good of and appearing therefor, cause it is further ordered: That foregoing judgment tunc, pro the be entered nunc 18, of 1930.” December judgment plaintiff

From appealed. this the has strategic arguments decline to We follow the of experienced respect learned and counsel with the to regularity validity proceedings and of the had in the upon judgment court plead below the motion for on the ings. Upon argument case, the of this the Jus Chief suggested tice purposes to counsel that for the of a judgment pleadings motion for this court would only pleadings. consider the The settled that rule is upon judgment pleadings nothing a motion for the complaint any up dehors the nor defense thereto set in the answer can be taken disposing into account in motion, of such but is to be determined upon principles the same as would be a demurrer to complaint ground. the same All the facts alleged purposes motion, are admitted for the and court is to determine whether these facts con necessary are stitute a of action. If the facts cause objection they complaint, are contained in defectively forth, ambiguous set or are an or uncer form, unavailing. tain There must an entire will be constituting a absence fact or facts essential to of some 460, Tingley, App. 78 cause of action. Elmore v. Cal. 706; Thornton, 248 P. & v. Cal. Hibernia S. Soc. L. 481, 49 P. 573. Since the movant’s motion admits well-pleaded complaint, together truth of all in the facts since, therefrom, and inferences to be drawn with all fair character, plead- purposes a motion of this for the of liberally construed, ings after search- must be demurrer, opinion ing complaint that the as on is of reversed. under review must be order and summary allegations the com- A the material of A, B, plaint and makes a voluminous with its exhibits C document, subject criticism that it is not a concise to the facts, inartificially drawn with statement of the and is allegations respect performance to the cove- subject nants conditions of the contract made the complaint. complaint The is divided into three arising action, predicated upon each out causes of A, of a contract dated on October exhibit changed July 1, 1918, exhibit and amended on C. alleges

complaint that on October defend- made, executed, ant and delivered to one C. M. Woos- lands, option purchase ter a certain certain contract rights, Pershing personal property water situated in County, Nevada, copy of which is attached to the com- plaint complaint alleges marked exhibit A. 21, 1922, Wooster, consideration,

on June for a valuable assigned plaintiff A, and set over exhibit and that plaintiff now, been, since which date has the owner assignee Wooster, of said contract as and is the real *11 party in in interest Exhibit A shows that action. agreed property the defendant to sell to the Wooster payment the mentioned for of the consideration fixed $202,003.25, $22,003.25 therein at which of sum was paid by cash, paid in and the balance to Wooster upon specified dates, complaint with interest. The alleges provisions that under the contained in said con- parts parcels tract sold certain Wooster or of the land complaint therein described to one J. B. Daniel. The agree- alleges that, express oral in this connection under gave defendant, Daniel ment made Wooster with the defendant, plaintiff and to the for the mutual benefit of defendant, mortgage property him a on the sold secure to money payment promissory purchase of seven

ant, by secretary, Lee, its F. M. delivered to Wooster letter directed to agreement the form of a a written agreed pay Wooster, whereby the defendant said serv- on account of $15,000 as a commission Wooster property the the sale of in reference to ices rendered paid A, when said sum to be in exhibit said described by fully performed completed and contract had been Wooster, complaint The and not or at all. otherwise tq that, suit, upon the alleges prior was made demand purchase the contract of and sale defendant to credit (Daniel note), property $6,609.60 and of the with letter, $15,000, the hereinabove with evidenced Lee amended referred In the amendment to the second to. substance, alleged, plaintiff complaint it that is, been, willing per- and able to and at all times had arising any obligations and out of said con- form all tracts, hereby pays herewith into court and and being equal $13,477.29, the difference sum of a sum payments received defend- between actual cash principle ant and the total amount of the balance plus interest at owing April on and interest paid into $12,849.83; that said sum per cent on rights settling all the decree court to abide contracts, A and C. exhibits arising parties out of said conveyance complaint is for a prayer that plaintiff, and to the property from the defendant arising contracts rights parties out of the all determined, complaint alleged in the matters plaintiff be declared a any due sums found to be sum or money paid into upon of the satisfied out lien deficiency any unsat- given judgment for plaintiff be isfied. movant’s judge, passing learned trial position pleadings, took the complaint alleged as com- $15,000 in the the item of letter, $6,609.60 and the the F. M. Lee under

missions note, should not be allowed the Daniel item of interest on price property made the purchase credits on plead- pleadings, therefore on subject good. technically motion was Whether ings counsels’ *13 16

the items pur- claimed were allowable as credits on the price property chase of the were material ten- issues complaint. that, dered in the It is well settled where by pleadings, judgment a material issue is tendered the pleadings improper. Co., on is Parks v. U. T. W. 411, 580, 884; 45 Nev. 197 P. 204 P. 49 In C. J. 670. allegations complaint view of the of the relative to the credits, purpose two claimed for the of the movant’s judgment pleadings. could not be rendered on This in court one case has had occasion to hold that a judgment pleadings question motion for on raises a only, sustained, when, of law and should be under the pleading, moving party admitted facts of a would be judgment Jones, entitled ato on the Edward merits. v. Clearly 49 pre- Nev. 246 P. 688. no such case is by complaint sented the bill or under review as would judgment entitle the defendant to on the merits. rendering judgment, dismissing trial in final terminating subject action and the contracts made the pleadings, apparently judgment of the entered on the theory separate defense, pleaded that its and affirmative way counterclaim, set forth matter which the judgment concluded court entitled the defendant to the judgment rendered. No could be rendered for defend- defense, here, put ant where his at issue. 49 C. J. that, allegations 672. It is a well-settled rule if material answer, judgment in are denied a motion for pleadings granted. not should Manchester M. A. State Smith, App. Bank v. 90 Cal. 265 P. 981. The mate- presented by complaint rial issues of fact made it grant erroneous to defendant’s motion for pleadings. agreement Contention is made that the verbal made respect in in connection with contracts to the Daniel brings note transaction the case our within statute of frauds. This contention is untenable. that, equity authorities hold when a court of jurisdiction specific

has per once obtained a suit for will, formance, it in accordance with the settled rules of equity jurisprudence, complete justice by deciding do determining controversy, entire case and the whole persons par- between the interested who have been made 65, p. Hence, ties to the action. Cal. sec. 509. Jur. cases, frequently courts are called enter

alternative decree spe- under the doctrine of conditional performance. cific equity In such cases decrees are way give molded in protection such a as to full as to rights parties pleadings. of the as set forth in the Consequently, determined, upon should it be the trial complaint, plain- issues tendered that the kept performed tiff had prece- not the conditions respect payments dent in purchase price, *14 pleadings decree under the plaintiff in favor of the might performance be conditioned on his of the cove- nants, performance part due, of which on his or will performance by be due on Page the defendant. Contracts, the Law of sec. 3368. intimating any opinion

Without on the merits of the pleadings, issues tendered the we conclude that the sustaining judgment order the defendant’s motion for judgment reversed, thereon and the should be with costs, plaintiff and that should have and recover all costs incurred it at the session of the court in which judgment pleadings the order entered, on the was and that the reversing remittitur of this court judgment order and should issue forthwith.

It is so ordered. J.:

Ducker, I concur the order of reversal and that the remit- titur issue forthwith.

Coleman, C. J.:

I concur in the case order. This was tried several years ago, judgment and a was rendered in favor of the plaintiff, which was reversed because of errors of law. The case was remanded and set for trial on the merits. day trial, defendant, time, On the of for the first judgment pleadings, made a motion for which granted; granting but the motion the court entirely by plead- matters dehors was influenced rendered, plaintiff ings. thus From court, argument .the appeal. Upon in this an took only put upon forth the contention defendant not insists urges time for the first in the but lower complaint a cause of action because does not state allegations Daniel notes. relative to the certain ' reversal, for the reason I concur in order granting took con- the lower court the motion into something pleadings, it matters dehors the had sideration right the character mentioned. no to do on a motion of that, matter, complaint alleges

As to the Daniel original agree- pursuant an oral modification ment, accepted certain notes for collec- the defendant agreed to credit the amounts collected tion It contract. This constituted an executed indebtedness. urge no modi- is now late to that there could be oral too original fication written contract. upon the

I think the case remanded for trial should be governing according principles equity merits matters. On Costs 17, 1932. June

OPINION By Court, Sanders, J. : containing appellant filed a cost case bill Respondent objections number filed of items. to sev- items, ground they eral of the that are excessive. objections The clerk ruled reduced some of ruling items, respondent appealed. from which has objection typing item of costs for respondent’s appeal the matter of motion to dismiss the for the reason that no cost bill therefor filed within days five from notice of decision thereon is merit. without may All peti items of costs be included in cost bill after rehearing Smith, tion for is denied. Siebert v. 49 Nev. 312, 246 1.P. agree ruling with the of the clerk

We on the con parts tention that certain record were not neces sary case, holding to the determination of the if case, respondent’s were failure to move to strike prior precludes raising to a decision on the merits point at this time and in this manner. th,e

As to ruling calculations made the clerk and the thereon, opinion based they we are of the should be sustained. is so

It ordered. notes n for $9,180 each,, complaint alleges with interest. The A, moneys contract, collected that under the exhibit were, by defendant, applied Daniel notes to be on the payments Hum- indebtedness to the defendant’s as Light Irrigation Company, and Power boldt Lovelock company. “B” The 16,589% shares of class stock said alleges special complaint stock to be of value which said open complaint in the The cannot be obtained market. that, verbally agreed alleges that it was understood collected three of the Daniel after the defendant had remaining notes, unpaid due and all of the notes were purchase price property to be credited of the A; described in exhibit that the defendant credited all paid, sums and credited the face value of Daniel notes remaining unpaid purchase price property, orally agreed, making defendant failed in as but that $6,609.60, plaintiff such credits to credit with the sum of 1,1920; Daniel note interest collected on the of November contract, A, changed as that otherwise said exhibit amended, C, fully respects in all executed exhibit was parties. both action, complaint alleges, As a second cause substance, delivery that at the time of the execution and A, exhibit as consideration for execution orally thereof, agreed the defendant with C. M. Wooster purchas- that would use his best efforts to find Wooster property ers for the land and described exhibit A and complete payment purchase price, to and as therefor, agreed compensation it was the defend- pay compensation ant should as Wooster services immediately rendered, upon completion pay- so purchase price, $15,000, ments of the full the sum of fully performed services, that Wooster had said same, rendered, were of the reasonable $15,000. complaint alleges that, prior value of suit, Wooster, consideration, for a valuable sold assigned plain- the said debt and claim for services tiff, plaintiff and that is the owner thereof and party finally complaint, the real interest. amended, shows that on October the defend-