Johnston v. De Lay
| Decision Date | 06 August 1945 |
| Docket Number | 3413. |
| Citation | 161 P.2d 350,63 Nev. 1 |
| Parties | JOHNSTON et al. v. DE LAY et al. |
| Court | Nevada Supreme Court |
On petition for rehearing.
Petition denied.
For former opinion, see 158 P.2d 547.
Morse & Graves, of Las Vegas, for appellants.
Edgar B. Hervey, of San Diego, Cal. (J. R. Lewis, of Las Vegas Merwyn H. Brown, of Winnemucca, and Henry F. Walker, of Los Angeles, Cal., for counsel), for respondents.
In the petition for rehearing filed by respondents they do not take issue with our holding that an allowance of damages for wrongful eviction by a receiver could be made only in the event that the procurement of the appointment of the receiver was unlawful. But respondents argue that 'the pleadings and findings (supported by the evidence) sustain the award of damages for the eviction of, and withholding from, defendants of the premises through the wrongful act of plaintiffs in procuring the appointment of the receiver.' Respondents proceed to set out certain findings and certain parts of the pleadings which they maintain sustain their position. However, the allegation of the cross-complaint, as we read it, sets up an entirely different theory. That allegation reads as follows: 'That thereafter on or about February 20, 1942, and while defendant Maurice L. DeLay was in lawful and peaceful possession of said premises, under and by virtue of the terms of said agreement, plaintiffs did wrongfully, and unlawfully and forcefully eject said defendant from said premises and the whole thereof, and deprive defendant of the use and occupancy thereof, and thence ever since has continued so to wrongfully and unlawfully deprive said defendant of the use and occupancy of said premises, all to his damage in the sum of Twenty Thousand Dollars ($20,000.00).'
And the principal finding of the court upon which the judgment was based follows the allegation of the cross-complaint hereinabove set out. Said finding reads as follows: 'That it is true that on February 20, 1942, and while defendant Maurice L.
DeLay was in lawful and peaceful possession, under and by virtue of the terms of the lease agreement first hereinbefore referred to, of the premises in said lease agreement described plaintiffs did wrongfully and unlawfully and forcefully eject said defendant from said premises and the whole thereof, and did thereafter deprive said defendant of the use and occupancy thereof, and thence ever since have...
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