Inda v. McInnis

Decision Date28 November 1899
Docket Number1,564.
Citation59 P. 3,25 Nev. 235
PartiesINDA v. McINNIS, Sheriff.
CourtNevada Supreme Court

Appeal from district court, Washoe county; B. F. Curler, Judge.

Action by Arnaud Inda against W. H. McInnis, as sheriff. From an order sustaining a demurrer to the complaint and judgment entered thereon, plaintiff appeals. Affirmed.

Torreyson & Summerfield and F. H. Norcross, for appellant.

A. E Cheney and E. D. Vanderleith, for respondent.

BELKNAP J.

Appeal from an order sustaining a demurrer and from the judgment entered thereupon. The complaint, in substance, alleged: That defendant, during the times mentioned, was the sheriff of Washoe county. That plaintiff, during the same period, was the owner of 6,000 head of sheep pasturing in Washoe county. That defendant demanded the sum of $300 of plaintiff as a license tax, as such owner. That plaintiff notified defendant that he was the owner of 5,396 acres of land in the state of Nevada, notwithstanding which defendant threatened to enforce his demand by process of law, unless plaintiff paid the license demanded; whereupon plaintiff, in order to avoid the detention of his sheep, agreed to and did deposit with defendant the sum of $300, to be retained by him according to the terms of the following receipt: "Reno, Nevada, April 11, 1899. Received of A. Inda three hundred dollars ($300) on deposit, until it is settled that said A. Inda is not liable for a license on sheep, and, in case he is entitled to run his sheep in Washoe county, the money is to be returned to him. W. H. McInnis, Sheriff of Washoe County." That defendant retains the money for a license upon the sheep mentioned, and refuses to return any portion of it to plaintiff. That a license tax upon plaintiff on account of herding, grazing, pasturing or owning sheep is without authority of law and void. Defendant demurred to the complaint, on the grounds that it did not state facts sufficient to constitute a cause of action. And that the court had no jurisdiction thereof.

Plaintiff should have averred in his complaint that the contingency mentioned in the receipt from the defendant had occurred. This is in the nature of a condition precedent, and must be averred in an action upon the contract. Counsel for appellant admit that this is the general rule, but claim that it is not applicable in this case because of the averments of ownership in plaintiff of 5,396 acres of land in the state, and...

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2 cases
  • Clarke v. Eureka County Bank
    • United States
    • U.S. District Court — District of Nevada
    • July 6, 1903
    ...in the mine which he conveyed to the Rocco-Homestake Mining Company. Soderberg v. Crockett, 17 Nev. 409, 415, 30 P. 826; Inda v. McInnis, 25 Nev. 235, 240, 59 P. 3. condition in the escrow agreement is vague, uncertain, and indefinite. How was it to be 'finally determined' that Clarke owned......
  • Welch v. Adams
    • United States
    • Nebraska Supreme Court
    • October 22, 1910
    ... ... the plaintiff should charge that the event has come to pass ... Wilson v. Clarke, 20 Minn. 367; Inda v ... McInnis, 25 Nev. 235, 59 P. 3. If, however, the ... defendant does not object to the sufficiency of the petition ... until after the trial ... ...

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