224 P. 804 | Nev. | 1924
Lead Opinion
This is a suit in equity .instituted by the appellants to restrain the execution of a judgment obtained against them in the court below by the respondent, plaintiff in that action.
Inter alia, the complaint sets out in full the pleadings, the decision, the opinion, findings, conclusions of law, and the judgment complained of. It also sets out the facts that an appeal was taken from said judgment and an order denying a motion for a new trial to this court, which appeal was dismissed on motion, and a rehearing denied. 45 Nev. 260, 201 Pac. 548. A demurrer to the complaint was overruled, and a restraining order and temporary injunction staying execution of the judgment was dissolved by the order of the court. From the latter order this appeal is taken.
In the original case respondent had brought an action against appellants to enjoin them from in any manner interfering with a certain ditch known as the “Mexican
“That the Mexican ditch, its bed and its banks, are. the property of the plaintiff [respondent], to the exclusion of the defendants [appellants], in all respects connected with or appertaining to the use of said ditch for the carrying of water, and particularly its bed and its banks extending through the property of defendants, including a width of fourteen feet from the high-water mark of the right or easterly bank of said Mexican ditch, as the necessary bank of said, ditch, are the property of the plaintiff, to the exclusion of the defendants, in all respects connected with or appertaining to the use of said ditch for the carrying of water; and said Mexican Dam and Ditch Company also has what further ownership in said banks and the vicinity of said ditch as is necessary for keeping the said ditch clean and in repair, and for maintaining the same with the least possible damage to or interference with the ownership of the land through which the said ditch runs.”
It is claimed that in rendering judgment in these respects the court exceeded its jurisdiction, because the relief so awarded was outside of any issue raised in the pleadings. Hence it is urged that the lower court erred in not restraining the enforcement of the judgment. A judgment which adjudges matters outside the issue raised by the pleadings is so far void. As stated in Douglas Milling and Power Co. v. Rickey, 47 Nev. 148, 217 Pac. 590, this rule is elementary. It is not to be invoked in this case, however. The matters .mentioned are within the issues made by the pleadings in the original case. In regard to the question of damages it was alleged that the appellants have within four years last past unlawfully and wrongfully entered upon and into the banks of said Mexican dam and ditch and
In the case before us we are not concerned with the form or sufficiency of the allegations of damage, as the same may have been tested in an appropriate way in the original case. It is insisted that the damages alleged are general damages, while the damages found by the court are special damages, and therefore outside the issue. Whether the admission of proof of special' damages, in the absence of an allegation thereof; could have been considered as error in the original case, would have depended upon whether or not the adverse party made timely objection. In Mellor v. Missouri Pac. Ry. Co. (Mo. Sup.), 14 S. W. 758, 105 Mo. 455, 16 S. W.
In Cosgriff v. Miller, 10 Wyo. 190, 68 Pac. 206, 98 Am. St. Rep. 468, the court said:
“It is, no doubt, the general rule that, to be proven, special damages must be alleged; but, when evidence showing such damages has been admitted without objection, a complaint on the ground that the allegations of the petition ate insufficient to cover special damages comes too late after verdict. Indeed, it is held that proof of special damage, if not objected to when offered, cannot be ruled from the jury by an instruction after the evidence is closed, and furnishes no ground for a new trial.”
See, also, Lashus v. Chamberlain, 6 Utah, 385, 24 Pac. 188; Plunkett v. Railway Co., 79 Wis. 222, 48 N. W. 519.
This is the rule as to error in regard to the admission of proof concerning special damages, and, in the case before us, when every presumption must be indulged in favor of the regularity of the judgment attacked, it is.apparent that appellants’ contention is without merit. Even if the damages found are special damages, a question we need not determine, the court had power to award damages under the general allegations in the complaint, and if it erred in the particular kind of damages awarded, such error could be nothing more than error committed within jurisdiction, and which could be corrected only on a new trial or an appeal.
Neither is there any merit to the contention that the judgment is void in so far as it undertakes to award damages, for the reason that no damages are asked for in the prayer of the complaint. “Ordinarily,” said the court in Johnson v. White Mountain Creamery Assn., 68 N. H. 437, 36 Atl. 13, 73 Am. St. Rep. 610, “it is the duty of the court to render such judgment as upon the whole record the law requires, without regard to any request or want of request therefor.”
“An answer having been interposed in this case, the formal relief asked in the complaint is not of much importance, and the court will grant the judgment which shall be consistent - with the case made by the complaint and embraced within the issues.”
“If the specific relief asked cannot be granted,” said the court in Rollins v. Forbes and Wife, 10 Cal. 299, “such relief as the case stated in the bill authorizes, may be had under the clause in the prayer for general relief, and even in the absence of such clause luhere an answer is filed.” (The italics are ours.)
In Buena Vista F. & V. Co. v. Tuohy, 107 Cal. 243, 40 Pac. 386; the court said:
“In cases where an answer is filed the court may, under section 580 of the code of civil procedure, grant ‘any relief consistent with the case made by the complaint and embraced within the issue.’ ”
See, also, Mariner v. Milisich, 45 Nev. 193, 200 Pac. 478.
• The code section cited in the California case last mentioned is identical with our' statute on the same subject-matter. Our statute, as pointed out in Mariner v. Milisich, supra, was borrowed from California. The statute determines the question. Section 299 of the civil practice act, Rev. Laws, 5241, reads:
“The relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.”
As we have seen, the complaint contained allegations of general damages which are denied in the answer. Issue was thus joined thereon, and respondent was therefore entitled, under the statutory rule, to be awarded damages, regardless of the absence of a specific demand therefor in the complaint.
The judgment is not void as to that portion of it wherein it is adjudged that the Mexican ditch, its bed
The order of the lower court dissolving the restraining order and temporary injunction is affirmed.
Dissenting Opinion
dissenting:
I do not differ so much with the general principles announced in the opinion of the court as in the application of the law. Here it is that our paths diverge. It is the settled rule in equity that a party must recover according to the case made by his bill, or not at all. Hence, even under a prayer for general relief, the court cannot go outside the case made by the pleadings, and decree in favor of the plaintiff on grounds not stated in his complaint, or grant relief for matters not charged. 1 Black on Judgments, sec. 141.
The original action of the Mexican Dam and Ditch Company v. Schultz Bros, was a suit to quiet plaintiff’s title to the Mexican ditch and to plaintiff’s right to 216 cubic feet of water per second appropriated from the Carson River and flowing in said ditch. The plaintiff
The finding of the court upon this allegation of the complaint reads as follows:
“That, by reason of said unlawful acts hereinabove mentioned, plaintiff and its stockholders have been deprived of the use of water flowing in said ditch, and plaintiff has been injured and damaged by the said defendants installing and changing boxes, and cutting open the banks of said Mexican ditch, in the sum of $1,238.”
The trial judge in rendering his decision directed that formal findings should, by reference thereto, adopt the opinion filed by the court in so far as the same passed upon the facts of the case.
The bill of complaint in the present case exhibits the judgment roll in the original case and by proper reference makes it a part of the complaint. Looking to the opinion of the court, it will be observed that it uses this language:
“I now reach the question of damages. * * * The other phase takes into account the expense the ditch company had to bear on account of the conduct and attitude of Schultz Bros. As I have the figures, this*465 amounts to $1,192, being mostly services for watchmen, but including one item of $46 for changing boxes back to their original position or taking out a box, another for $15 for Engineer Miller, and one of $5 for Engineer Payne. * * * Damages are, therefore, allowed against Schultz Bros, for $1,238. As said before, there is no prayer for damages, so this amount is allowed as an essential element of the case under the general prayer.”
The opinion of the trial judge is no part of the findings, and, when made a part of the record on appeal, it can only be looked to to assist the court in a correct disposition of the case. In the bill of complaint in the present action the opinion, decision, and findings of fact in the original action convince me that the court exceeded its jurisdiction in awarding damages for $1,238 for matters not charged in the complaint. The judgment, therefore, for said amount of damages, is not supported by the pleadings.
Entertaining these views, I am compelled to dissent from the judgment of the court.
