Harper v. Lichtenberger
| Decision Date | 23 January 1940 |
| Docket Number | 3277. |
| Parties | HARPER v. LICHTENBERGER. |
| Court | Nevada Supreme Court |
Rehearing Denied March 7, 1940.
See 99 P.2d 474.
Appeal from Eighth Judicial District Court, Clark County; Wm. E Orr, Judge.
Action by George W. Lichtenberger against J. L. Harper for the cancellation of a mining lease, the appointment of a receiver, and an accounting of royalties, wherein defendant filed a demurrer. From a judgment for plaintiff, defendant appeals.
Affirmed.
Clifford A. Jones and Roland H. Wiley, both of Las Vegas, and Harry T Young, of Los Angeles, Cal., for appellant.
Ham & Taylor, of Las Vegas, for respondent.
This appeal is taken upon the judgment roll, and any errors complained of, which may be considered by this Court, are such errors as appear upon the face of the judgment roll alone. Sec. 38 of Chapter 32, 1937 Session Laws, p. 53; Greinstein v. Greinstein, 44 Nev. 174, 191 P. 1082. The judgment roll, which constitutes the record on appeal in the instant case, consists of the complaint and exhibits attached, demurrer to the complaint, order overruling defendant's demurrer, second amended answer of defendant with exhibits attached, plaintiff's reply, special verdict of the jury, judgment, notice of appeal and undertaking on appeal.
The said record on appeal discloses; that the respondent plaintiff below, commenced an action in the District Court of the Eighth Judicial District of the State of Nevada, in and for the County of Clark, for the cancellation of a certain mining lease and agreement, a copy of which was attached to and made a part of the plaintiff's complaint; for the appointment of a receiver to take possession of the mining premises involved in the said lease and agreement, and that an accounting of the royalties, provided for in said lease and agreement, be ordered, and that possession of the premises be restored to respondent. The case was tried by a jury, and the jury returned a special verdict. And, based upon said verdict, the Court entered its judgment decreeing a cancellation of said lease and agreement, and restoring respondent to the possession of the mining premises involved and further enjoining and restraining appellant, his attorneys, agents and employees from further interference with said premises. Appellant, in his opening brief, relies upon four "Exceptions and Points of Error" for a reversal of the judgment of the Lower Court, which are as follows:
"First: That the respondent's complaint does not state or allege facts sufficient to constitute a cause of action for forfeiture against appellant; Second: That the respondent's complaint, with respect to the breaches of covenant upon which the judgment of the Court was predicated, does not state or allege facts sufficient to constitute a cause of action for forfeiture against appellant;
Third: The special verdict of the jury and the findings of fact by the Court adopting said special verdict of the jury as its sole findings of fact do not support the judgment and decree; and
Fourth: The Court erred in overruling appellant's demurrer to the respondent's complaint."
I am of the opinion that the fore-going four "Exceptions and Points of Error" present but one question to be determined by this Court, namely; "Does the complaint of respondent state or allege facts sufficient to constitute a cause of action for forfeiture against appellant?" for the reason that this Court has recently held; "That a point made for the first time in this court will be deemed waived, unless it goes to the jurisdiction of the court," Parks v. Garrison, 57 Nev. 480, 67 P.2d 314; or to the point that the complaint does not state facts sufficient to constitute a cause of action, Deiss v. Southern Pacific Co. et al., 56 Nev. 151, 47 P.2d 928, 53 P.2d 332. Furthermore, the statutes of this state, after providing the manner of taking objections to the sufficiency of a complaint, provide by Sec. 8601, N.C.L. 1929, as follows: "If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action."
No bill of exceptions was ever made up, prepared and filed, in the instant action, as required by the "New Trial and Appeals" act, being Chapter 32 of the 1937 Session Laws, Page 53. No jurisdictional question being raised, it therefore follows that the only question presented by this appeal for the determination of this Court is: "Does the complaint of respondent state facts sufficient to constitute a cause of action for forfeiture of said lease and agreement?"
It will also be noted from the record on appeal that the Lower Court based its judgment of forfeiture upon Findings No. 1 and No. 16 of the jury's special verdict. Finding No. 1 was, in effect, that appellant never installed ample power and pumps to unwater the underground workings of the leased mining premises prior to February 5, 1938. Finding No. 16 was, in effect, that appellant failed to furnish respondent blue prints or maps of the development work in the said mining premises at least once every three (3) months, and that he failed to correct such deficiency within sixty (60) days after notice thereof by respondent. The "Lease and Agreement", which is the subject of this action, is embraced in the record as Exhibit "A", and is attached to and made a part of respondent's complaint. The said lease and agreement, among other things, provides:
It will also be noted from the record in this case, that appellant filed his general demurrer to respondent's complaint alleging that, "Said complaint does not allege facts sufficient to constitute a cause of action", and that at the time the said demurrer was called for argument, counsel for appellant, in open court, consented that the demurrer be overruled. This, in my opinion, is equivalent to never having filed a demurrer at all. From an examination of respondent's complaint, it is alleged, generally, that appellant, since the occupation of the mining premises, has violated certain and numerous of the covenants contained in said lease and agreement on his part to be kept and performed, and among a number of the special allegations are contained the following: "(c) Defendant (appellant) did not, as provided in said lease and agreement, or ever, or at all, install ample or any power and/or ample or any...
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