192 P. 471 | Nev. | 1921
Lead Opinion
By the Court,
Prior to and during 1915, the Gold Quartz Mining Company owned a group of thirteen mining claims, situated in the Bullion mining district, Lander County, Nevada. In February, 1914, J. P. Raine had been appointed receiver of the company. He died in November, 1915, just as he was preparing to do the annual assessment work upon said group of claims. In December, 1915, R. F. Raine was appointed administrator of the estate of the deceased, and J. P. Raine, Jr., temporary receiver of the company, with instructions to do the assessment work upon the group of claims for 1915. Upon the appointment of the temporary receiver, which was late in December, 1915, he got together a crew of sixteen men for the purpose of doing the annual assessment work, and the operations were immediately begun.
Mrs. Strattan boarded the men so employed until about January 24, 1916. On the morning of January 26, claiming that the annual assessment work had not been done upon the Ajax and the Giant, two of the claims of said group, and that they were open to location, she entered upon the ground and located them as the Board Bill and Board Bill No. 1 mining claims. The Gold Quartz Mining Company intervened, and from a judgment in favor of said company as intervener, and
The foregoing statement presents an outline of the case. Other facts will be alluded to in the opinion.
Before taking up the consideration of the case upon its merits, we desire to dispose of some preliminary matters. We direct attention to paragraphs 3, 4, and 5 of rule 4 of this court. Paragraph 3 provides that when a transcript is typewritten the first impression thereof shall be used in making up the record on appeal. Paragraph 4 provides that the pleadings, proceedings, and bill of exceptions shall be chronologically arranged in the transcript, and prefaced with an alphabetical index specifying the folio of each separate paper, order, or proceeding, and of the testimony of each witness. Paragraph 5 provides also that for failure to comply with the requirements mentioned the record may, upon motion, and for good cause shown, be stricken from the files. The transcript in this case is neither chronologically arranged nor indexed, the entire bill of exceptions is a carbon copy, and many of the pages in the record are very indistinct; nor does it appear that the bill of exceptions was ever settled by the trial judge. However, since counsel for respondent have treated the record as being in compliance with all requirements, we will not ourselves raise obj ections to it; but we wish to warn the members of the bar at large; and while we are aware of the fact that counsel for appellant was out of the state for several months, during which time the record was prepared, and that he did not give his personal attention to supervising its preparation, these circumstances are not sufficient excuse for its condition.
No memorandum of errors was filed in support of the motion for á new trial, and the only remaining questions to be considered are whether the court erred in refusing to grant a new trial upon the ground of newly discovered evidence, and upon the further ground of the insufficiency of the evidence to justify the judgment.
Did the court err in refusing to grant a new trial upon the ground of newly discovered evidence ? In support of this contention, affidavits by Julius Siri, S. C. Strattan, and A. Grant Miller were filed. The affidavits of Strattan and Miller do not pertain to any matters within their own knowledge, except as to questions of 'diligence, and the like. It is claimed that the so-called newly discovered evidence will contradict that given by W. S. Raine in behalf of defendants as to the number of shifts of work performed by Siri upon the Ajax claim. He testified as follows:
“Q. Well, showing your work, what does your record show as to the time that Mr. Siri, if such a party was working, and what time he put in on the Ajax? A. I overlooked that a moment ago in the time book there. Four days in January, Julius Siri helped Bosoaglia over on the Ajax.
“Q. When did he come? A. He came here on the.last of December.
“Q. How much time did he work? A. One shift.
*18 “Q. You testified to shifts? A. One is marked in the books, because I kept their time; but he worked some in January.”
This is the testimony sought to be overthrown by Siri, who, in his affidavit, states on this point:
“I also worked about a day and a half on the ground known as the Ajax, prior and up to January 5, 1916.”
He also swears that he went to work on December 30, 1915, and was laid off January 24, 1916. There is no showing by the affidavit that upon a new trial Siri’s testimony would conflict with that of Raine’s. So far as Siri’s affidavit shows, he might have worked upon the Ajax every day between January 5 and 24. The court did not err in refusing to grant a new trial upon the ground urged.
The remaining question is as to whether or not the receiver forfeited his right and that of the company to the Ajax and Giant claims by failure to do the annual assessment work for 1915 on or before December 31, 1915; or in case he had not done such annual assessment work on or before the date mentioned, whether there had been a resumption of work upon such claims, and, if so, whether the same was being prosecuted with reasonable diligence when Mrs. Strattan sought to locate the ground.
As to the Ajax claim, there is evidence in the record, without including the services alleged to have been rendered by a watchman, to show, as found by the court, that over $100 worth of work had been performed upon
A different situation exists as to the Giant claim. As we have said, there were thirteen claims in the group owned by the defendant company, and in the latter part of December the receiver took a crew of sixteen men to the property to do the annual assessment work for 1915. The evidence warrants the conclusion that prior to the time this crew of men were put to work upon the group of claims, in fact at least $48 worth of work had been performed upon the Giant claim, leaving $52 worth to be done thereon — even if the $60 for watchman’s services is not counted. The blacksmith shop and some other buildings were upon the Giant claim, and of the crew of sixteen men doing the work upon the claims in question from December 30, 1915, to January 24, 1916, one P. R. Keller worked in the blacksmith shop, doing what work was necessary in sharpening the tools of the men who were doing the work upon the other claims, and, when not so engaged in sharpening tools, would do work upon the Giant claim. He testified that he averaged for each day from January 1 to 26 two hours of work upon the property. Counting this at the regular rate — lumping it into shifts of eight hours — the work was worth $24, making a total of $72 worth of work done upon the Giant claim at the time Mrs. Strattan sought to locate the ground. The undisputed evidence is that, on the 23d or 24th of January, P. R. Keller was employed by the receiver to stay upon the property, after all others had left, and divide his time working
There was evidence by Mrs. Strattan and her husband that practically no work had been done upon the. Ajax and Giant claims by anybody during the time the crew of men were there. Strattan was one of the crew of sixteen who had been engaged in working elsewhere at the time it is testified the work was being done upon the two claims; and in view of the fact that most of the work testified to as having been done was of such a nature that he could know nothing about it unless in the mine during the working hours of the day — at least, as to the Giant claim — his testimony deserves little consideration. Mrs. Strattan was cooking three meals a day for seventeen or eighteen people every day during the carrying on of the operations, and was at somewhat of a disadvantage to observe the performance of the men. As to the credibility of the witnesses and the weight to be given their testimony, the trial court was better situated to determine than we are. There is a conflict in the evidence, and no theory exists upon which we can say that the court was not justified in accepting the testimony of the defendant as to the amount of work done upon the property.
That it may not be thought that we have overlooked the testimony of Fred King and A. E. Raleigh, we may simply say that it shows they were in no position to know what was done at the time relative to which they
Perceiving no error in the judgment and order complained of, it is ordered that the judgment be affirmed.
Rehearing
On Petition for Rehearing
By the Court,
We see no merit in the petition for rehearing filed in this case. It does not, in fact, call for serious consideration; for it is evident, from a perusal of the petition, that our former opinion has not been carefully read.
The first contention made is that we fell into error in our former opinion in saying that there was no showing in the affidavit of Siri that his testimony upon a retrial would conflict with that of Raine. Siri did not say in
It is said in the petition for rehearing that, while the court expressly stated in the opinion that it did not include an item of $5 claimed as having been paid for a windlass on account of annual labor on the Ajax, we did not include another item of $9 paid for a windlass. We confess we would have been very inconsistent had we done such a thing. The fact is the $9 item was testified to as chargeable against the' Giant claim, as were the other items mentioned in the petition, and had nothing whatever to do with the Ajax. Just why the time of the court should be taken up in putting counsel right as to testimony is beyond our understanding, but such is now and then the case. In reaching our conclusion as to the $100 worth of work done on the Ajax, we considered items for labor only.
Fault is found with the opinion for the reason that
“It would seem as if respondent had been given the benefit of every doubt and respondent’s testimony has everywhere been taken as true.”
“One matter which seems to have been overlooked by the court is the fact that the evidence on the part of respondent itself shows that no tools were sharpened by Keller for use on the Giant claim.”
If counsel will read our opinion carefully, he will see that we did not say that tools were sharpened for use on the Giant claim. We expressly stated that the tools were sharpened for “the men who were doing the work upon the other claims.”
A point is also sought to be made of the fact that we stated in the original opinion that a certain number of the j urors reached certain conclusions as to controverted facts. While we did allude to that matter, we also said that no verdict was rendered which could bind either the trial court or this court, further saying:
“The court having made special findings thereon, appellant’s rights were in every way preserved.”
No other suggestion calling for consideration is made in the petition.
The petition for a rehearing is hereby denied.