Nielsen v. Rebard

• Decision Date: 04 November 1919
• Docket Number: 2297.
• Citation: 183 P. 984,43 Nev. 274
• Parties: NIELSEN v. REBARD.
• Court: Nevada Supreme Court

183 P. 984

43 Nev. 274

NIELSEN v. REBARD.

No. 2297.

Supreme Court of Nevada

November 4, 1919

Appeal from District Court, Esmeralda County; J. Emmet Walsh, Judge.

Action by Fred H. Nielsen against Nellie Richardson Rebard, as administratrix of the estate of Frank P. Richardson deceased. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

Augustus Tilden, of Reno, for appellant.

A Grant Miller, of Reno, and Thompson & Thompson, of Goldfield for respondent.

COLEMAN C.J.

By this action plaintiff seeks to recover the possession of specific stock, and of dividends earned thereon. Judgment was entered in the trial court as prayed, from which, as well as from an order denying a new trial, and appeal is taken.

It is contended in this court that the amended complaint does not state a cause of action, as to which it is said, by counsel for respondent, that this point, not having been made in the trial court, should not now prevail. It is a well-recognized rule that, while courts do not look with favor upon objections of this kind when made for the first time in the appellate court (Omaha National Bank v. Kiper, 60 Neb. 37, 82 N.W. 102; Phoenix v. Gardner, 13 Minn 433 (Gil. 396); Smith v. Dennett, 15 Minn. 86 (Gil. 59); Donellan v. Hardy, 57 Ind. 399). yet, if the complaint utterly fails to state a cause of action, the point may be raised at any time (Stevenson v. Lord, 15 Colo. 131, 25 P. 313; Van Doren v. Tjader, 1 Nev. 390, 90 Am. Dec. 498). In fact our Code expressly provides that all objections to a complaint may be waived, except as to the lack of jurisdiction and the failure of the complaint to state a cause of action. Rev. Laws 1912, § 5045. It is incumbent upon us to determine the question presented.

The amended complaint, in brief, alleges that on November 23, 1914, and for a long time prior thereto, Frank P. Richardson was engaged in the stock brokerage business in Goldfield, and while so engaged acted in behalf of customers in buying and selling stock upon the Goldfield and San Francisco Stock Exchanges, and in so doing was governed by the rules of such exchanges and the customs of brokers of Goldfield; that on the date mentioned said Richardson died intestate in the town of Goldfield. It is further averred that long prior to the date of his death the deceased had established the custom with his patrons of buying mining stocks for them upon the payment of one-third or one-half of the purchase price thereof, and depositing the said stock in his safe, the balance of the purchase price to be paid at the date of the sale of such stock, or at such times as it might be withdrawn from said safe; that the deceased had established a custom in said business, with his customers, of buying mining stocks for them and paying therefor in full, and placing the same in his safe for such purchasers, the purchasers making no payment in cash at the time, but depositing an equal amount of stock in the same company as security for the amount due upon the purchases, permitting the customers to pay the amount due, with interest, at the time of such sale or withdrawal of the stock; that such customs were the ones prevailing among the stockbrokers of Goldfield at the time.

It is further alleged that on the 10th day of October, 1914 plaintiff purchased of the said Richardson 1,000 shares of the capital stock of the Jumbo Extension Mining Company, at the price of 39 cents per share, and paid in full therefor; that on October 22, 1914, pursuant to the established custom, as alleged, the deceased purchased for plaintiff 1,000 shares of the capital stock of the Jumbo Extension Mining Company at the price of 40 cents per share, on account of which plaintiff made no cash payment, but as security for the purchase price...