Solen v. Virginia & Truckee Railroad

14 Nev. 405 | Nev. | 1879

Concurrence Opinion

LEONARD, J.,

concurring:

I concur in this opinion solely upon the ground stated by the court, that we are bound by the decision in Hastings v. Johnson. If tbe question decided by tbe majority of tbe court in that case was now presented for tbe first time, I could not agree with tbe conclusion arrived at. But tbe record in that case fairly presented tbe question decided by tbe majority, as well as tbe one upon wbicb all agreed. Sucb being tbe case, tbe decision cannot be regarded as obiter (Starr v. Stark, 2 Sawyer, 605); and under tbe doctrine of stare decisis should be adhered to.

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Lead Opinion

By the Court,

Hawley, J.:

The decision in Hastings v. Johnson, 1 Nev. 617, is directly in point, and adverse to the views contended for by appellant, upon the real question presented by this appeal.

It was therein decided that where the judgment of the court is silent as regards the collection of interest, it does not authorize the issuance of an execution calling for payment of interest on the judgment; that the execution must follow the judgment, and if the judgment does not call for interest, the execution can not.

Upon the authority of that case, I think the orders appealed from ought to be sustained. It is so ordered.