Allen Clark Co. v. Francovich

• Decision Date: 04 December 1918
• Docket Number: 2329.
• Citation: 176 P. 259,42 Nev. 321
• Parties: ALLEN CLARK CO. v. FRANCOVICH (COOL et al., Interveners).
• Court: Nevada Supreme Court

176 P. 259

42 Nev. 321

ALLEN CLARK CO. v. FRANCOVICH (COOL et al., Interveners).

No. 2329.

Supreme Court of Nevada

December 4, 1918

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by Allen Clark Company against Spiro Francovich, in which Ray J. Cool and others intervene. From a judgment for interveners and from an order denying motion for new trial plaintiff appeals. Judgment reversed and cause remanded, and order vacating judgment against defendant for costs affirmed.

O. H Mack, of Reno, for appellant.

Robert Richards and Thorton A. Read, all of Reno, for respondent Francovich.

Hoyt Gibbons, French & Springmeyer, of Reno, for respondent interveners.

SANDERS J.

This is an action in claim and delivery. For convenience the parties will be referred to here as they actually stood in the court below.

Allen Clark Company, the plaintiff, alleges in its complaint that it is the owner and entitled to the possession of an oil painting, four by eight feet in size, situate in a certain saloon in the city of Reno, known as the "Wine House"; that the defendant, Spiro Francovich, wrongfully detains from plaintiff the possession of said property; that the alleged cause of the detention is that parties other than the defendant claim some interest therein; that its value is $400, and judgment is demanded for its possession or its value.

Ray J Cool, A. E. Hammond, George J. Clark, and Edith G. Clark before the trial of the cause, by court order were permitted to intervene in the action. Their complaint in intervention alleges that neither the plaintiff nor the defendant are entitled to the ownership or possession of the painting; that prior to the 26th day of February, 1917, the estate of A. J. Clark, deceased, was the owner and entitled to the possession of the painting; that said estate had not been fully closed, and that all the property of said estate had not been fully distributed; that the interveners and one Allen L. Clark are the sole heirs of said estate; that on the 26th day of February, 1917, Allen L. Clark conveyed, assigned, transferred, set over, and delivered to the interveners, jointly, all the right, title, and interest he then had, jointly with interveners, in and to all the property, real and personal, distributed to him and the interveners as distributees of said estate, together with all interest he then had, jointly with interveners, in any undistributed property of said estate; that thereupon the interveners duly took possession of said painting, and still and now are the owners of and entitled to the possession thereof; that the value of the painting is $1,500, and they demand judgment for its possession or its value.

The defendant, Spiro Francovich, by his answer to these complaints, admits his possession of the painting, but disclaims any interest therein other than that set up by way of counterclaim, in substance and to the effect, that with the consent and permission of a prior administrator of said estate, on March 27, 1915, he took possession of the painting for the purpose of preserving the same; that he is entitled to judgment for the sum of $124 for the care and preservation of the painting in his possession.

For reply to the complaint in intervention the plaintiff set up that Allen L. Clark, by a deed dated the 29th of November, 1916, for a valuable consideration, sold and conveyed to plaintiff his interest in all the property, real and personal, both in law and in equity and inheritance, of the estate of A. J. Clark, deceased, together with the property in controversy; that the interveners, by deed dated the 23d of December, 1916, conveyed all of their right, title, and interest in and to the painting to plaintiff's predecessors in interest, Roy J. Frisch and C. E. Mack, and by a mesne conveyance, dated the 1st of February, 1917, it became the owner of the painting and entitled to its possession.

The plaintiff demurred to the answer of Francovich upon the ground that it did not state a defense. The demurrer was sustained. Upon the calling of the case for trial the default of Francovich for failure to answer over was duly made and entered, and in the course of the trial, on motion of the plaintiff, the court rendered judgment against Francovich for costs. The cause then proceeded to judgment upon the issues joined between the plaintiff and the interveners. The cause was tried without a jury. The court, in effect, found that all the allegations of the complaint in intervention were true, and all the affirmative defenses of plaintiff were untrue, and rendered judgment accordingly.

The plaintiff, in due course, moved for a new trial, which was refused. The plaintiff appeals from the order denying its motion for a new trial and from the judgment.

The entire record is certified here in the form of a bill of exceptions, together with 17 pages of assignments of error.

For a clearer understanding of the conclusions reached it will be necessary, at the expense of prolixity, to analyze the facts of the case.

A. J Clark died intestate in October, 1913, seised and possessed of a large amount of real and personal property, situate in Washoe county, of the appraised value of nearly $200,000, leaving as his heirs at law the interveners in this action and one Allen L. Clark. On the 29th day of November, 1916, the estate had proceeded to the point of a final decree of distribution, distributing to...