Garaventa v. Gardella, 3438

Docket Nº3438
Citation169 P.2d 540, 63 Nev. 304
Case DateJune 03, 1946
CourtSupreme Court of Nevada

169 P.2d 540

63 Nev. 304


Nos. 3438, 3439.

Supreme Court of Nevada

June 3, 1946

Appeal from District Court, Second District, Washoe County; Thomas J. D. Salter, Presiding Judge.

Actions by Eleanor Gardella, as administratrix of the estates of Katherine Garaventa, deceased, and of John Garaventa, deceased, against Joseph A. Garaventa to recover certain stock certificates and for other relief. Judgment for plaintiff, and defendant appeals.

Reversed and remanded for a new trial.stock for a valuable consideration, defendant did not take inconsistent position on appeal and was not barred from relying thereon. [169 P.2d 541]

[63 Nev. 306] Springmeyer & Thompson, of Reno, for appellant.

H. R. Cooke and John Davidson, both of Reno, for respondent.

TABER, Chief Justice.

For some years prior to 1919 John Garaventa and his wife Katherine were the owners of certain ranching properties in Washoe and Lyon counties. In the latter part of 1918 and the early part of 1919 the Garaventa Land & Livestock Company was organized. John and Katherine conveyed said properties, including livestock, to the corporation, which had an authorized capital stock of 600 shares, each having a par value of $100. [63 Nev. 307] 598 shares were issued to John Garaventa, and one share each to Joseph and Frank, two of the children of John and Katherine. The father and said two sons were elected as directors and officers of the corporation. In September, 1927, one share of the father's stock was canceled, and a certificate therefor made out in the name of another son, William.

The father and mother died intestate in 1933, John on February 23d, Katherine on March 2d. They left as their heirs at law three sons, the said Joseph, Frank and William, three daughters, Eleanor, Angelina and Albina, and one grandchild, Evelyn, daughter of a deceased son John. The daughters and granddaughter are married. In the summer of 1941 one of the daughters, Eleanor (Garaventa) Gardella, was [169 P.2d 542] appointed and qualified as administratrix of the estate of her father, and in February, 1942, letters of administration were issued to her in the estate of her mother.

In March, 1942 plaintiff commenced two actions against Joseph, one as administratrix of the estate of her mother and the other as administratrix of the estate of her father. These cases were Nos. 70,116 and 70,117, respectively, in the second judicial district court, Washoe county. In her amended complaints she alleges that shortly after the death of father John, Joseph took physical possession of the certificates representing 597 shares of said stock, with the knowledge and consent of all the legal heirs, and kept and held them as trustee for their use and benefit until July, 1941, when he repudiated his trust and thenceforth wrongfully claimed and asserted that he was the sole and exclusive owner of all said stock. In the prayers of said complaints plaintiff asked that Joseph be ordered to deliver all of the 597 shares of stock to plaintiff as administratrix. In his answers Joseph denies the trust, and by way of affirmative defense alleges that since 1932 he has been in the exclusive possession of all the issued and outstanding capital stock, and during all that time has openly, notoriously and continuously claimed to be the owner [63 Nev. 308] of all said stock under a claim of right and title thereto.

Before said actions were tried, another suit was brought in said district court by said Eleanor Gardella, as administratrix of the estates of her father and mother, and Frank and William Garaventa, plaintiffs, against said Joseph Garaventa, Louise Garaventa, Edward Garaventa, Garaventa Land & Livestock Company and the First National Bank of Nevada, defendants. The number of this action was 71,626, and it was tried before Honorable A. J. Maestretti. Plaintiffs sought an injunction and asked for the appointment of a receiver, alleging mismanagement on the part of Joseph. In addition to a large amount of testimony and documentary evidence bearing on the question of alleged mismanagement on the part of defendant Joseph Garaventa, there was also a considerable amount of evidence admitted regarding the ownership of the 600 shares of capital stock. In rendering its decision, however, the court in that case did not decide who owned the stock or any part of it. After the decision in the last mentioned case the other two cases, Nos. 70,116 and 70,117, were tried together without a jury before a visiting judge, Honorable Thomas J. D. Salter, at that time judge of the Sixth Judicial District Court, Humboldt county. On the consolidated trial of these two cases it was stipulated in each of them that the testimony taken by the respective parties on the trial of said case No. 71,626 'may all or any portions thereof be used by either of the parties hereto upon the trial of the above-entitled case with the same force and effect as if the witnesses were personally present and testifying, subject, however, to objections made as shown by said transcript.' It was also stipulated that all exhibits in case No. 71,626 should be transferred and deemed filed in cases 70,116 and 70,117, and that said exhibits, together with the transcript of testimony in said action 71,626, should constitute the evidence or offered evidence, as the case might be, in said consolidated causes.

[63 Nev. 309] After due proceedings the court, in case No. 70,116, entered judgment in favor of plaintiff and against defendant, in part, as follows:

'(a) Said plaintiff, as administratrix of the Estate of Katherine Garaventa, deceased, is adjudged and decreed to be the owner of an undivided one-half interest in 597 shares of the capital stock of Garaventa Land and Livestock Company * * *
'(b) That said plaintiff, as such administratrix, be and she hereby is decreed to be entitled to the immediate possession of said undivided one-half part, share and interest in said 597 shares;
'(c) That at no time since January 2, 1919 has said defendant been the owner of any shares of the capital stock of the said Garaventa Land & Live Stock Company, except one share thereof, represented by Certificate No. 11, issued on said January 2, 1919 in the name of said defendant.'

A similar judgment was entered in case No. 70,117. Motions for new trials were [169 P.2d 543] denied, and defendant has appealed to this court from said judgments and from the orders denying his motions for new trials.

One of appellant's contentions is that the trial court's decisions, findings and judgments are not supported by, and are contrary to, the evidence. In the consideration of this assignment the court is confronted with an important preliminary question arising out of the fact that the evidence in the two consolidated cases tried before Judge Salter consists entirely of the transcript of testimony taken orally in the case tried before Judge Maestretti, and the documentary exhibits in that case. Appellant maintains that as the trial judge had no opportunity of observing the witnesses while testifying, and their demeanor on the witness stand, this court is as capable of examining the evidence and drawing conclusions from it as was the court below, and that for this reason we should re-examine the entire case, determine for ourselves the weight of the evidence and credibility [63 Nev. 310] of the witnesses, and draw our own conclusions. Respondent's position on this question is that under the constitution and statutes of Nevada this court has no power, in the exercise of its appellate jurisdiction, to try an appealed case on the facts de novo; that where, as here, there is a substantial conflict of evidence, the action of the trial court in determining the credibility of witnesses is not to be disturbed on appeal if that court's findings have any substantial support in the evidence.

The findings of fact of a trial court, where there is substantial evidence to support them and the evidence is conflicting, will not as a general rule be set aside by an appellate court. There are two reasons for this rule. One is the fact that the position of the trial court for the purpose of determining factual questions is superior to that of the appellate court in that the former usually has the opportunity to observe and hear the witnesses and parties and obtain the benefit of many points and matters that cannot be brought before the appellate court for its consideration by way of printed record. 5 C.J.S., Appeal and Error, § 1656, p. 682, Note 63. The other reason is based upon the fundamental and essential distinction between the respective provinces of trial and appellate courts. Tupman v. Haberkern, 208 Cal. 256, 280 P. 970; 5 C.J.S., Appeal and Error, § 1656, pp. 681, 682, Note 62. Under the provisions of the constitution of Nevada (Art. VI, § 4) this court is not given original jurisdiction in cases like the present. The question thus arises whether, where this court is in just as good a position to weigh the evidence and draw its own conclusions therefrom as was the trial court, we would be exercising original, not appellate, jurisdiction should we undertake to re-examine the entire case, determine for ourselves the weight of evidence and credibility of the witnesses, and draw our own conclusions as to whether the evidence preponderates in favor of the plaintiff.

Appellant does not contend that this court should exercise original jurisdiction in the present case, or that [63 Nev. 311] it should try the case de novo. He does contend, however, that the ordinary rule of appellate decision with regard to the weight to be given the findings of the trial court does not apply in this case. 'This contention,' appellant argues, 'has nothing whatsoever to do with the kind of jurisdiction the supreme court is given by the constitution. It pertains merely to a rule of appellate decision within the...

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