Craig v. Harrah

Citation201 P.2d 1081,66 Nev. 1
Decision Date17 January 1949
Docket Number3541.
PartiesCRAIG v. HARRAH.
CourtSupreme Court of Nevada

Appeal from Second Judicial District Court, Washoe County; Wm McKnight, Judge.

Action for money had and received by William Harrah against Edward E. Craig. From an adverse judgment, the defendant appeals.

Judgment affirmed.

Edward E. Craig, of Berkeley, Cal., in pro. per.

Harlan L. Heward, of Reno, for respondent.

HORSEY Chief Justice.

This case is before us upon appeal from the judgment rendered and entered by the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, Department No. 1, on the 16th day of January, 1948, in favor of the plaintiff, who is the respondent in the matter of this appeal. There was no motion for a new trial.

This court has heretofore disposed of two motions in the case, by our opinion and orders filed June 25, 1948, whereby we denied appellant's motion for an extension of time within which to file bill of exceptions, and granted respondent's motion to strike appellant's bill of exceptions, certain minutes of the court, and the district court's opinion and decision. The motion of appellant for an extension of such time was denied, for the reason that appellant's application was made to this court long after the time within which to file bill of exceptions had expired and he had made no application for such extension to the lower court or the judge thereof, nor had he requested a stipulation from opposing counsel for any extension of such time, until after the time had expired.

The motion of respondent to strike the bill of exceptions was granted, for the reason that this court has repeatedly held that the time requirement of our statute in that regard is mandatory and jurisdictional. The minutes of the district court, and that court's opinion and decision, were necessarily, ordered stricken for the reason that they constituted no part of the judgment roll and could only be brought properly before this court if embodied in a bill of exceptions filed within the time allowed by law. Numerous authorities are cited in our said opinion, in support of our position stated therein, and the orders simultaneously made. Said opinion and orders are reported in 65 Nev. 294, 195 P.2d 688, to which reference is now made.

Appellant's bill of exceptions having been stricken, the case is now before us upon appeal upon the judgment roll alone, and it is only to the documents and papers constituting the judgment roll that we are entitled to look for the correctness of the lower court's rulings, decision and judgment. The judgment roll before us consists of the pleadings (the complaint, answer and reply), the district court's findings, and that court's judgment.

We shall refer to the parties as plaintiff and defendant, respectively, as they were designated in the lower court.

The plaintiff, in his complaint, alleged that defendant became indebted to plaintiff in the sum of $500.00, for money had and received by defendant by reason of an advancement made of said sum of money, on or about May 25, 1947, to the defendant by the plaintiff. The plaintiff also alleged that he demanded payment thereof from the defendant, on May 31, 1947, and that no part of said sum of $500.00 had been repaid.

The defendant, in his answer, alleged, in substance, that no sufficient demand had been made on him by plaintiff for the repayment of said sum of $500.00, admitted that he, said defendant, had not repaid said sum or any part thereof, and further alleged 'that there was no obligation on the part of the defendant to repay said sum of $500.00'. In paragraph I of his answer, the defendant set forth his principal defense, which defense is, in effect, that the $500.00 sued for by plaintiff was advanced to defendant by plaintiff for the purpose of engaging in gambling in plaintiff's gambling establishment or casino in the City of Reno, Nevada, an illegal purpose; that such purpose was well known to the plaintiff at the time said advancement was made, and that any debt or obligation arising from such advancement or upon the basis thereof was a gambling debt or obligation, unenforceable under the laws of the State of Nevada. The allegations in said paragraph I of defendant's answer as to such illegal purpose, and of facts tending to disclose same, are as follows:

'and further alleges that said $500.00 was advanced by the plaintiff to the defendant for the purpose of engaging in gambling, and that at the time of said advancement of said $500.00 the plaintiff well knew that the said advancement of the said sum of $500.00 was for the purpose of engaging in gambling.
'That the plaintiff is the owner, proprietor and operator of a gambling casino in the City of Reno, County of Washoe, State of Nevada. That the principal business and the sole busines of the plaintiff in the operation of said casino, is to run gambling devices and games and to sell liquor, and that at the time said advancement was made the plaintiff then and there in said casino managed, operated and controlled certain gambling devices and games known and designated as 'craps', or dice game, roulette, black jack and mechanical slot machines and that each, every bit and all of the said $500.00 advances by the plaintiff to the defendant as aforesaid were advances for the sole purpose of enabling the defendant to use said money for the purpose of gambling in the plaintiff's gambling games located as aforesaid in plaintiff's gambling games located as aforesaid in plaintiff's casino in the following games to wit: black jack, roulette, craps, as aforesaid, and slot machines, as aforesaid, and that the defendant took no part of said money away from said gambling establishment and gambled each, every bit and all of the same in said gambling establishment, as aforesaid, with the knowledge and participation of the defendant in each and every bit of said gambling and that the plaintiff won from the defendant by his gambling devices as aforesaid each, every bit and all of the aforesaid advancement of said $500.00.'

Plaintiff, in paragraph I of his reply to said answer, denied all of said paragraph I thereof, and each and every allegation therein contained, including the portion of said paragraph I above quoted, 'save and except that the plaintiff admits that he is the owner and proprietor of Harrah's Club, located in Reno, Nevada and that at the time the plaintiff gave to the defendant the said $500, he in Harrah's Club managed, operated and controlled certain gambling devices known and designated as 'craps', or dice game, roulette, black jack and mechanical slot machines'.

It may be noted at this point that the defendant, neither in said paragraph I nor elsewhere in his answer, has alleged expressly or specifically where the advancement to him by plaintiff of the $500.00 was made, nor whether same was advanced personally by the plaintiff, or by some agent, cashier or employee of plaintiff, nor whether at the time of the advancement the defendant was then and there engaged in playing a game or betting at any gambling game or device, or had, shortly prior thereto, been so engaged.

In determining the purpose for which the $500.00 was advanced, the significance and relevancy of the surrounding circumstances and environment are readily apparent. If the advancement was made in a gambling establishment in full operation, by the proprietor or his agent, to one then, or immediately prior thereto, engaged in gambling and who ran short of money, the game still being in progress, or if his conversation or the circumstances indicated he intended to resume playing, the purpose of the advancement becomes clear. On the other hand, if the advancement was at a different place than a gambling establishment, or if same was not made at a time when the recipient had been recently playing, and some other, legitimate, purpose is stated by the recipient, then no presumption or inference that the advancement was for a gambling purpose is justifiable from such circumstances.

Confined, as we are upon this appeal, to the judgment roll, the bill of exceptions containing all the evidence having been stricken, and bound, as we are, to presume conclusively that the findings of the trial court are correct, and, in the instant case, the trial court having found to be untrue all of the allegations of paragraphs I, II and III of defendant's answer, save and except the clause above quoted from said paragraph I of the reply and which is substantially the same as a like clause in paragraph I of said answer, it is important that we carefully consider and interpret correctly such admitted clause.

The fact that the plaintiff was 'the owner and proprietor of Harrah's Club located in Reno, Nevada and that at the time the plaintiff gave to the defendant the said $500, he in Harrah's Club managed, operated and controlled certain gambling devices' is not, necessarily a statement that the advancement was made to the defendant in Harrah's Club. As is commonly known to be the custom and practice, the proprietor of such a club may also be, at the same time, the manager, operator and controller of such establishment, but, in order to perform his duties efficiently, he may, and usually does, employ assistants agents or employees. In fact, if the establishment and business is of considerable size and volume, he employes many such assistants. It cannot be reasonably contended that, because the rather peculiar phraseology, 'he in Harrah's Club managed', etc. (italics added) was used, that such expression necessarily meant that the plaintiff was physically present in such club at all times when he was so engaged in its management, operation and control. In clubs of such kind, many of which...

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