Ahlers v. Thomas

• Decision Date: 16 February 1899
• Docket Number: 1,542.
• Parties: AHLERS et al. v. THOMAS et al.
• Court: Nevada Supreme Court

56 P. 93

24 Nev. 407

AHLERS et al. v. THOMAS et al.

No. 1,542.

Supreme Court of Nevada

February 16, 1899

In the matter of contempt of court charged against P. Walsh, in the district court in and for Lander county, in the case of F Ahlers and others against J. P. Thomas and others. The contemner was found guilty, and he brings certiorari to review the proceeding. Writ dismissed.

Henry Mayenbaum, for petitioner.

P. M Bowler, Jr., opposed.

BELKNAP J.

The record of the district court of the Third judicial district in the above-entitled case has been certified to this court in obedience to a writ of certiorari issued upon the petition of P. Walsh, claiming that that court exceeded its jurisdiction in adjudging him guilty of contempt of its decree. The record contains an affidavit of D. T. Wallace upon which the proceedings for contempt were instituted. It shows that affiant is one of the plaintiffs in that suit; that it was a controversy concerning the right to the use of the waters of a certain stream, called "Cottonwood Cañon Creek," for the purpose of irrigation; that a decree was entered and recorded June 3, 1882, enjoining defendants and their grantees and successors from diverting any of the waters of the stream; that two of the defendants, to wit, B. Toole and J. P. Thomas, have conveyed their interests in the land and water to P. Walsh, who is the petitioner above named, and that whatever rights Walsh has in the premises are predicated upon his succession as grantee of the above-named persons, and not otherwise; that Walsh, conspiring with others, has wrongfully diverted the waters of the stream, to the injury of plaintiffs, and in contempt of the decree. Upon the hearing, oral and documentary evidence was introduced; and the district court filed written findings of fact supporting its conclusions, and entered an order adjudging petitioner guilty of contempt of its decree, and fined him $100. Costs taxed at $115.10 were directed to be paid by the petitioner to the plaintiff and F. M. McMahon, one of the plaintiffs' grantees.

Counsel for petitioner urge that the district court did not have jurisdiction of the petitioner--First, because he was not a party to the suit; second, that the decree enjoins grantees etc., but as it appears from the record that the decree was rendered by default, and that the prayer to the complaint omitted to ask for relief against grantees, the relief given in this respect should be disregarded and held void. The general rule is that judgments are binding only upon parties, but there are exceptions, as in the case of privies. "When a judgment has been rendered between the parties, they are bound by it; and, to give full effect to the principle by which the parties are held bound by it, all persons who are represented by the parties, and claim under them, or are privy to them, are equally concluded by the same proceedings. By 'privity' is meant the mutual or successive relationship to the rights of property, and privies are classified according to the manner of this relationship. They are privies in estate, as donor and donee, lessor and lessee, and joint tenants; privies in blood, as heir and ancestor, and co-parceners; privies in representation, as testator and executor, administrator and intestate; privies in law, as where the law, without privity of blood or estate, casts land upon another, as by escheat. But all these kinds of...