Bowler v. First Judicial Dist. Court of State, in and for Churchill County

Citation68 Nev. 445,234 P.2d 593
Decision Date15 August 1951
Docket NumberNo. 3663,3663
Parties. Supreme Court of Nevada
CourtSupreme Court of Nevada

George Vargas, Morley Griswold, Reno, for petitioners.

John S. Sinai, John W. Coulman and David P. Sinai, Reno, for respondents.

BADT, Chief Justice.

On March 28, 1951 Milton A. Bowler and Milton D. Bowler filed in this court their original petition for a writ of prohibition prohibiting the respondent district court and district judge from proceeding with certain receivership proceedings initiated against them by Stella Belanger Leonard Bryson. On April 3, 1951, in chambers, we made an order denying the petition without prejudice. The order contained a statement of the pertinent facts, and the status of the main controversy between Mrs. Bryson (formerly Stella B. Leonard Belanger) and the Bowlers existing at that time. A copy of the order is set forth in the margin. 1 On July 17, 1951 the matter was heard at length upon the original petition and on certain supplemental pleadings with sundry exhibits attached from which it appears that certain additional proceedings have since been had in the respondent court. On June 25, 1951 two months and twenty-two days after we filed the order quoted in the margin, the respondent court filed an 'Opinion and Ruling on Matters at Issue and Submitted,' in which it was, among other things, ordered that the demurrer to the amended complaint (to adjudge plaintiff's ownership and right to possession of the livestock) be overruled and the motion to strike parts of the complaint be denied, that the defendants have twenty days to answer the amended complaint and plaintiff have twenty days for a responsive pleading thereto. The court also denied the motion of the defendants to dismiss the petition for appointment of receiver filed February 6, 1951 (which appointment was ordered January 25, 1951) upon the ground that the same was simply a rehearing, without leave of court, of matters theretofore determined, in violation of District Court Rule XI. 2 The court at the same time denied the motion of defendants to vacate the court's order of March 13, 1951, appointing the receiver and ordering the defendants to deliver possession of the cattle to him. The grounds for that motion were the same as those alleged in support of the present petition for prohibition, namely, that the plaintiff had an adequate remedy at law in claim and delivery and that the court had no jurisdiction, without requiring bond, to appoint a receiver with a mandatory injunction that the defendants deliver up possession to him. All this appears from the recitals contained in respondent's order of June 25, 1951. We list a few of the important dates bearing on the present situation:

Sept. 14, 1948, judgment, Stella B. Leonard Belanger v. David J. Belanger, adjudicating the former's ownership of the forty-one head of milk cows and two bulls involved in all of the proceedings mentioned.

Oct. 21, 1949, judgment, Stella B. Leonard Belanger v. Childers and Vrenon, asserted successors in interest of David J. Belanger, again adjudicating her ownership of the same cattle.

Oct. 21, 1949, sheriff's levy on said cattle, then possessed and claimed by the Bowlers, under writ of execution in Belanger v. Childers and Vrenon.

Feb. 10, 1950, our writ of mandamus, Bowler v. Vannoy, sheriff, Nev., 215 P.2d 248, ordering the sheriff to return the cattle to the Bowlers.

April 24, 1950, leave granted by district court in third party claim proceedings in Leonard v. Childers and Vrenon permitting Mrs. Leonard to sue the Bowlers for possession of the livestock.

Dec. 12, 1950, complaint filed, Leonard v. Bowler.

Dec. 18, 1950, Mrs. Leonard's notice of motion for appointment of receiver.

Jan. 6, 1951, her amended notice of motion for appointment of receiver.

Jan. 25, 1951, 'Notice by Court of Intent to Appoint a Receiver.'

March 13, 1951, order appointing receiver.

April 3, 1951, our order denying without prejudice alternative writ of prohibition.

April 21, 1951, amended complaint filed, Leonard v. Bowler.

April 30, 1951, demurrer to amended complaint and motion to strike filed.

May ?, 1951, demurrer and motion submitted without further argument.

June 25, 1951, order overruling demurrer, etc.

Defendants (petitioners herein) filed their answer to the amended complaint on July 17, 1951, the last of the twenty days allowed by the district court for the purpose, and being the same day that the petition for prohibition and supplemental matters were orally argued to this court by both parties. At that time further briefs were ordered filed, the last of which was filed July 31, 1951, on which date the matter stood submitted to this court. If we may assume that plaintiff filed her reply to defendants' answer within the period allowed by the trial court's order, such reply must have been filed on or before August 6, 1951, so that the case is now at issue and ready to be tried on the merits. Such action is characterized by both parties and by the district court as one in claim and delivery whose main issues are the ownership and right to immediate possession of the livestock asserted by both parties.

Petitioners insist, first, that Mrs. Bryson's clear, plain, speedy and adequate remedy in the court below, as evidenced by her own pleadings, was an action at law in claim and delivery, in the course of which, if she desired immediate possession, she could obtain it under statutory proceedings and upon filing the statutory bond; that with such remedy available, she had no recourse to the equitable remedy of the appointment of a receiver. Secondly, petitioners insist that respondents' order appointing receiver contained express injunctive provisions 3 and that the court was without jurisdiction to issue such injunctive order without requiring a written undertaking to pay to the defendants such damages as they might sustain by reason thereof if the court should finally decide that the plaintiff was not entitled thereto. § 8696, N.C.L.1929; Shelton v. Second Judicial District Court, 64 Nev. 487, 185 P.2d 320; Havemeyer v. Superior Court, 84 Cal. 327, 24 P. 121.

Counsel for Mrs. Bryson (who appear herein as attorneys for respondents) contend: (1) that under the circumstances her remedy in claim and delivery was inadequate, and that her only protection against the threatened loss of the cattle was through the appointment of a receiver who might hold the same as an officer of the court pending the determination of the controversy; (2) that our statute governing the appointment of receivers does not require the posting of bond; 4 (3) that the only injunctive feature contained in the order appointing receiver is one which, if not expressed, is implied in every order appointing a receiver and implied in numerous other orders entered from time to time by district courts; (4) that the respondent court had jurisdiction of the parties and the subject matter, had jurisdiction to appoint a receiver and that the matter of exacting a bond was discretionary; and (5) that the present petitioners have a remedy by appeal from the order appointing the receiver or the order denying the motion to vacate the order appointing the receiver, and that in any event the matter of the issuance of the writ of prohibition by this court is within its sound discretion and should be exercised only in the furtherance of justice and that under the circumstances of this case the writ should be denied.

As we are of the opinion that the writ should be denied upon the ground last stated, it is unnecessary to discuss the other issues raised dealing with respondents' asserted lack of jurisdiction to appoint the receiver. In our order of April 3, 1951, denying without prejudice the petition for an alternative writ of prohibition, we specifically stated that we were not determining the question as to whether or not the district court had jurisdiction to appoint the receiver and to order the Bowlers to deliver up the cattle to the receiver. It is evident from the opinion of the learned district judge that the equities of the case strongly appealed to him and that the history of the case, showing a reduction of the herd of milk cattle from an original forty-one cows and two bulls to the present sixteen head of cows, with the assertion by the defendants, though insolvent, that they had an absolute right to sell the same, comprised a complete showing to him that there was danger that the property would be lost, removed or materially injured. In answer to the contention that there could be no lawful appointment of a receiver unless it is shown that the interest of the plaintiff in the cattle is 'probable' § 8749, subd. 1, N.C.L., the court pointed to the awarding of these same cattle to the plaintiff in two previous judgments against the defendants' predecessors.

In State ex rel. Hatch v. Ninth Judicial District Court, 50 Nev. 282, 257 P. 831, 833, this court said: 'The writ of prohibition issues only in the sound judicial discretion of the court for the furtherance of justice. In the circumstances of this case we feel that the ends of justice do not demand the issuance of the writ sought.'

In Walcott v. Wells, 21 Nev. 47, 24 P. 367, 368, 9 L.R.A. 59, this court said: 'It is a principle which lies at the very foundation of the law of prohibition that the jurisdiction is strictly confined to cases where no other remedy exists; and it has always been held to be a sufficient reason to refuse to issue the writ where it clearly appears that the petitioner therefor has another plain, speedy, and adequate remedy at law.'

Other cases are to the same effect. See O'Brien v. Board of Commissioners, 41 Nev. 90, 167 P. 1007; State ex rel. Hatch v. Ninth Judicial District Court, 50 Nev. 282, 257 P. 831; Silver Peak Mines v. Second Jud. Dist. Court, 33 Nev. 97, 110 P. 503.

Having in mind the fact that under §...

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8 cases
  • Bowler v. Leonard, s. 3734
    • United States
    • Supreme Court of Nevada
    • April 29, 1954
    ...in dispute in this action. We have already refused to review the matter upon petition for writ of prohibition. Bowler v. First Judicial District Court, 68 Nev. 445, 234 P.2d 593. The merits of the controversy are now squarely presented by this appeal from order denying appellants' motion to......
  • Rawson v. Ninth Judicial Dist. Court of Nev., 71548
    • United States
    • Supreme Court of Nevada
    • June 29, 2017
    ...124 Nev. at 197, 179 P.3d at 558 ; 396 P.3d 848Pan, 120 Nev. at 224, 228, 88 P.3d at 841, 843 ; Bowler v. First Judicial Dist. Court , 68 Nev. 445, 453–55, 234 P.2d 593, 598–99 (1951) ; Walcott v. Wells , 21 Nev. 47, 51, 24 P. 367, 368 (1890) ; see also NRS 34.020 ; NRS 34.170 ; NRS 34.330.......
  • Columbia/HCA Healthcare Corp. v. Eighth Judicial Dist. Court In and For County of Clark
    • United States
    • Supreme Court of Nevada
    • April 24, 1997
    ...course of law." NRS 34.330. The decision to entertain a writ is within the sound discretion of this court. Bowler v. First Judicial District Court, 68 Nev. 445, 234 P.2d 593 (1951). Sunrise Hospital argues that if a writ of prohibition is not granted to prevent disclosure of the occurrence ......
  • Hickey v. Eighth Judicial Dist. Court In and For County of Clark, 19659
    • United States
    • Supreme Court of Nevada
    • November 27, 1989
    ...within the discretion of this court. See Poulos v. District Court, 98 Nev. 453, 652 P.2d 1177 (1982) (mandamus); Bowler v. District Court, 68 Nev. 445, 234 P.2d 593 (1951) (prohibition). In the present case, Glen and Chris challenge orders of the district court which, taken together, compel......
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