O'Banion v. Simpson

• Decision Date: 25 August 1920
• Docket Number: 2352.
• Citation: 191 P. 1083,44 Nev. 188
• Parties: O'BANION ET AL. v. SIMPSON.
• Court: Nevada Supreme Court

191 P. 1083

44 Nev. 188

O'BANION ET AL. v. SIMPSON.

No. 2352.

Supreme Court of Nevada

August 25, 1920

Appeal from Eighth Judicial District Court, Lyon County; T. C. Hart Judge.

Action to quiet title by John W. O'Banion and another against Daniel C. Simpson. Judgment for plaintiffs, and defendant appeals from the judgment and from the order denying his motion for new trial. Affirmed.

Coleman C.J., dissenting.as a cotenant, but such possession, if exclusive of the other tenants, is presumed to be coextensive with the deed and adverse to them.

Mack & Green, of Reno, for appellant.

Platt & Sanford, of Carson City, for respondents.

SANDERS J.

This appeal is taken from a judgment in favor of plaintiffs and against the defendant, and also from an order denying the defendant's motion for a new trial.

Counsel for appellant insist that the trial court erred in denying appellant's demand for a jury trial and in holding that the appellant by his failure to demand a jury at or before the time the case was set for trial waived his right to demand a jury. The exceptions to this ruling are: First, that the defendant was deprived of his inviolate constitutional right to a jury trial; second, that the defendant was not represented in court when the cause was set for trial, and had no knowledge or information that the cause would be set on the date it was set for trial; third, that when a party demands a jury before the trial takes place and the case is a proper one for a jury, the court is without power or authority to deny the demand.

Section 3, art. 1, of the Constitution of this state provides, inter alia:

"The right of trial by jury shall be secured to all and remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law."

The language that a "jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law" leaves the exercise of the right to a trial by jury to be regulated by legislation. Without some legislative regulation of it or provision for it the right cannot be enjoyed at all. The Constitution merely guarantees the right and leaves to the Legislature the duty of providing the means and methods by which the right is to be enforced. Copp v. Henniker, 55 N.H. 179, 20 Am. Rep. 194, 16 Standard Ency. Pr. 862.

The Legislature of this state, in prescribing a general system of practice for the trial of civil cases, has provided by section 284 of the Civil Practice Act (section 5226, Rev. Laws) that:

"Trial by jury may be waived by the several parties to an issue of fact in actions arising on contract, or for the recovery of specific real or personal property, with or without damages, and with the assent of the court, in other actions, in the manner following:

1. By failing to demand the same at or before the time the cause is set for trial or to appear at the trial.

2. By written consent, in person or by attorney, filed with the clerk.

3. By oral consent in open court, entered in the minutes."

It is conceded that the cause was set for trial upon the application of plaintiffs' counsel without notice to defendant or his counsel; that the defendant did not demand a jury at or before the time the cause was set for trial, but made a formal demand for a jury at the time the cause was called for trial; and it appears from a colloquy which took place between court and counsel that the presiding judge was not informed that the defendant desired a jury until 2 days before the cause was called for trial, which had been set 30 days prior thereto.

The question for determination is whether the Legislature has the power to say that the failure to demand a jury at or before the time the cause is set for trial constitutes a waiver of the right. Though the right to trial by jury is declared by the Constitution to be inviolate, still it is a privilege that may be waived, and it is therefore competent to the Legislature to provide the mode in which it may be done, as it may regulate the exercise of any other right. Springfield Ry. Co. v. Western Ry. Const. Co., 49 Ohio St. 681, 32 N.E. 961. We are of the opinion that subdivision 1 of the statute just quoted is a reasonable regulation, and not a penalty; that it neither impairs nor limits the constitutional right to a trial by jury in a proper case. It requires a party to use reasonable diligence in the exercise of his right to have a jury trial. It is not designed for the convenience of the parties or for the advantage of either, but was incorporated into the law to lessen the expense and facilitate the business of courts, and to enable the court to have a jury in attendance when a case comes on for trial. It is not necessary for us to determine whether the provision is mandatory or not. The hardships suggested, that the leading counsel for appellant was unavoidably absent from attendance on court at the date the case was set, and that he had no knowledge that it would be set, or had been set, on the particular date, is without weight. Any general law that regulates rights operates with severity in particular cases. The leading counsel for the defendant is an experienced and able practitioner in the jurisdiction where the case was tried. He undoubtedly knew that the case had been at issue since 1916. Although he may have been unavoidably prevented from being in attendance upon the court at the date of setting, he certainly had ample time before the cause was set to demand a jury. And it is fair to assume that the Legislature intended to meet just such situation as is here presented by allowing the party to make his election at any time before the cause is set for trial. Being of the opinion that the provision in question is "clearly a reasonable regulation, with a view to the public interest, of the right of trial by jury, not a violation of any right and within the competency of the Legislature," we conclude that the court did not err in refusing the defendant's demand for a jury.

This is an action to quiet title to 200 acres of land situated in Smith Valley, Lyon county. The controversy first arose over the ownership of the property in 1907, when A. W. Gander brought an action in the district court of said county against John W. O'Banion, Jacob E. Cohn, and Daniel C. Simpson, which resulted, in 1914, in said Gander being adjudged, by this court, to be the owner, by adverse possession, of 80 acres of the 280 acres of land involved in that controversy, and in remanding the cause with direction to the lower court that the action as to the "other land" (meaning the 200 acres here involved) be dismissed or a new trial granted. Gander v. Simpson, 37 Nev. 1, 134 P. 514. The cause was dismissed on motion of Gander. The present action was thereafter commenced in 1914 by said A. W. Gander and John W. O'Banion, as plaintiffs, against Daniel C. Simpson, defendant, to quiet title to the land, described in their complaint as being the S.E. 1/4 of section 36, township 11 north, range 23 east, also lot 1 of section 1, township 10 north, range 23 east, all M. D. B. & M., together with the water, water rights, and privileges thereunto belonging.

The appellant, Daniel C. Simpson, as adverse claimant to an equal, undivided one-half interest in the land described in the complaint, appeals to this court from a judgment adjudging and decreeing plaintiffs to be the owners of the entire property, and perpetually enjoining defendant from asserting or claiming an interest therein, and from an order denying and overruling his motion for a new trial.

The history of the land is that the Occidental Colony Company, a corporation, was the owner in fee of 5,300 acres of land situate in the counties of Douglas and Lyon, derived through mesne conveyances from the original patentees of the United States and the state of Nevada. In the year 1890 said corporation conveyed the entire acreage, described according to its legal subdivisions, it being surveyed land, to Joseph Neudelman and Ephraim Friedman.

The plaintiffs at the trial deraigned title from Joseph Neudelman, and founded their claim of ownership upon a deed of Joseph Neudelman and Fannie Neudelman, his wife, to John W. O'Banion and Zadoc Pierce, bearing date on the 12th day of November, 1901, purporting to convey, with covenants of seisin and warranty against the claim of all persons, a specific portion of the 5,300 acres as conveyed by said corporation, consisting of 280 acres, described by metes and bounds, excepting, of course, the 80 acres thereof adjudged to Gander in the prior litigation.

The defendant at the trial deraigned title through mesne conveyances from Ephraim Friedman, and founded his claim of ownership to an undivided half of the property in dispute upon a deed of Jacob E. Cohn to Daniel C. Simpson, bearing date of September 3, 1906, purporting to convey an equal undivided one-half of the 5,300 acres of land conveyed by the Occidental Colony Company to Joseph Neudelman and Ephraim Friedman.

Under the statute law concerning conveyances in this state, the deed of the Occidental Colony Company, a corporation, to Joseph Neudelman and Ephraim Friedman created in the grantees a tenancy in common. Section 1055, Rev. Laws.

The law is well settled here, and elsewhere, that a conveyance to a stranger to the title, by one cotenant, by an instrument purporting to pass the entire title in severalty, or a specific part thereof, by metes and bounds, followed by an entry into the actual, open, and exclusive possession by such stranger under a claim of ownership in severalty is deemed to amount to an ouster of the other cotenant, which if continued for the statutory period (five years) will ripen into good title by adverse possession. Abernathie v....