Golden v. Sixth Judicial Dist. Ct. in and for Pershing County

• Decision Date: 03 July 1936
• Docket Number: 3148.
• Citation: 58 P.2d 1042,57 Nev. 114
• Parties: GOLDEN ET AL. v. SIXTH JUDICIAL DISTRICT COURT IN AND FOR PERSHING COUNTY ET AL.
• Court: Nevada Supreme Court

58 P.2d 1042

57 Nev. 114

GOLDEN ET AL. v. SIXTH JUDICIAL DISTRICT COURT IN AND FOR PERSHING COUNTY ET AL.

No. 3148.

Supreme Court of Nevada

July 3, 1936

Original proceeding for a writ of prohibition by William K. Golden and another against the Sixth Judicial District Court in and for Pershing County, and the Honorable L. O. Hawkins, as Presiding Judge thereof.

Writ denied.

W. E Baldy, of Carson City, and Frank J. Golden, of San Francisco Cal., for petitioners.

W. A Wilson, of Lovelock, for respondents.

TABER Justice.

This is a petition for a writ of prohibition wherein this court is asked to prohibit respondents from taking any further action in civil action No. 898, in respondent district court, except to do what is necessary to remove said action to the District Court of the United States for the District of Nevada. In said action Clarence A. Ernst is plaintiff, and Mary E Golden, defendant. Demurrers to the original and first amended complaints were sustained.

The second amended complaint alleges, as a first cause of action, that in February, 1935, said Mary E. Golden brought an action in respondent court against Sunset Mining & Development Company for the recovery of various sums totaling $4,181.50; that one of the five causes of action included in said suit was an assigned claim of said Clarence A. Ernst in the sum of $225; that said Mary E. Golden recovered a default judgment for the full amount prayed for in her complaint in the last-mentioned action; that execution issued, and, after notice of sale, the property levied on was sold to said Mary E. Golden for $3,000; that the assigned claim of said Clarence A. Ernst was given without consideration to said Mary E. Golden for the purpose of bringing suit; and that she holds in trust for him such proportionate part of said property "as his claim so assigned, to-wit: $225.00 bears to the total claim of plaintiff's assignor, to-wit: $4,181.50."

In the second cause of action in said second amended complaint it is alleged that, before Mary E. Golden commenced said action against Sunset Mining & Development Company, John A. Jurgenson also assigned to her, without consideration and for the purpose of bringing suit, his claim against said company in the sum of $225; that said assigned claim was included in said suit against said company; that said Jurgenson assigned said claim to said Clarence A. Ernst; and that said Mary E. Golden holds in trust for said Jurgenson such proportionate part of said property sold under execution as his claim $250 bears to the total claim, $4,181.50.

The third cause of action in said second amended complaint alleges that Mary E. Golden employed Attorney H. J. Murrish to prosecute her said suit against said company; that he performed such services; that the reasonable value thereof was $250; that demand was made by said H. J. Murrish; and that his claim has been assigned to said Clarence A. Ernst.

The prayer of said second amended complaint, as regards the first cause of action, is that said Mary E. Golden, defendant, be adjudged to hold in trust for the benefit of said Clarence A. Ernst, plaintiff, such portion of the property sold on execution as his assigned claim $225 bears to the total claim, $4,181.50. The prayer is similar on the second cause of action, and on the third cause of action the prayer is that plaintiff be given judgment for $250 upon the express contract to pay that sum.

A demurrer to said second amended complaint was overruled, and a motion to strike said complaint and certain portions of it was denied. Thereupon defendant, Mary E. Golden, filed her answer, wherein, amongst other things, she alleged that Albert E. Golden claimed to be the owner of all the property described in said second amended complaint by virtue of purchase at a sale under a deed of trust; that W. K. Golden, M. J. Catching, and F. J. Golden each claimed and asserted an interest in said property; and that a complete determination of the controversy could not be had without the presence of said four persons as parties. Besides praying that plaintiff take nothing, she asked for an order bringing in, as parties, the four persons above named. She further prayed for a decree that she has no interest in the property, and that whatever title she acquired by virtue of the execution sale was so acquired by her as trustee for said Albert E. Golden, W. K. Golden, M. J. Catching, and F. J. Golden. The respondent court refused to make an order bringing in the four persons above named as parties. Said William K. Golden and Albert E. Golden then petitioned for permission to intervene, and respondent court ordered that they be permitted to do so; whereupon each of them filed is complaint in intervention. In these complaints each intervener alleges that plaintiff has no legal claim, either in his own right or as assignee of Jurgenson or Murrish, and that the value of all of said property is more than $5,000. In the said complaint of intervener William K. Golden, he alleges that Mary E. Golden holds all of said property in trust for him, basing his claim upon the same execution sale relied on by plaintiff, and upon the alleged assignment to him of the claims of M. J. Catching and Frank J. Golden. Albert E. Golden's complaint in intervention alleges that he is the owner of all the property, having purchased it at a foreclosure sale.

Shortly after the filing of the complaints in intervention, said Mary E. Golden, William K. Golden, and Albert A. Golden petitioned respondent court for an order causing said action No. 898 to be removed to the District Court of the United States for the District of Nevada; also for an order that no further or other proceedings be had in said action in respondent court. Said petition was accompanied by a bond. The plaintiff in said action, Clarence A. Ernst, filed answers to the aforesaid complaints in intervention, and opposed the granting of said petition for removal of the cause to the federal court. Respondent court declined to make the requested order for removal to the United States District Court, and ordered the said cause to be set down for trial. Thereafter, and before the date set for the trial, said William K. Golden and Albert E. Golden petitioned this court for a writ of prohibition. Certified copies of the papers filed in the respondent court for the removal of said action No. 898 to the federal court have heretofore been filed in said United States District Court.

One of the grounds upon which respondent opposes our making the alternative writ permanent is, as he claims, that the value of the matter in controversy in said action No. 898 is less than that required by the Federal Judicial Code. 28 U.S.C.A. §§ 41(1), 71.

By matter in dispute or controversy is meant the subject of litigation--the matter upon which the action is brought and issue is joined, and in relation to which, if the issue be one of fact, testimony is taken. Lee v. Watson (Ky. 1864) 1 Wall. 337, 17 L.Ed. 557; Smith v. Adams (Ter.Dak.1889) 130 U.S. 167, 9 S.Ct. 566, 32 L.Ed. 895.

In the case of Elliott v. Empire Natural Gas Co. (C.C.A.Kan.1925) 4 F. (2d) 493, the court said that the "value of matter in controversy" means the pecuniary result to either party which the judgment would directly produce, either at once or in the future. In Cowell v. City Water Supply Co., 57 C.C.A. 393, 121 F. 53, reversing (C.C.) 96 F. 769, the court said that the value of the matter in dispute is the value of that which complainant seeks to recover, or the value of that which defendant will lose if complainant obtains the recovery he seeks.

Cowell v. City Water...