Silver Peak Mines v. Second Judicial Dist. Court, Washoe County

• Citation: 110 P. 503,33 Nev. 97
• Decision Date: 13 August 1910
• Docket Number: 1,886.
• Parties: SILVER PEAK MINES et al. v. SECOND JUDICIAL DISTRICT COURT, WASHOE COUNTY et al.
• Court: Supreme Court of Nevada

110 P. 503

33 Nev. 97

SILVER PEAK MINES et al. v. SECOND JUDICIAL DISTRICT COURT, WASHOE COUNTY et al.

No. 1,886.

Supreme Court of Nevada

August 13, 1910

Petition by Silver Peak Mines and others for a writ of prohibition against the Second Judicial District Court of Washoe County Nev., and the Honorable W. H. A. Pike, judge thereof. Writ denied.

Samuel Platt, Rush Taggart, and Clarence Blair Mitchell, for petitioners. J. W. Dorsey and R. M. F. Soto, for respondents.

PER CURIAM.

This proceeding stands upon a petition for a writ of prohibition to which a demurrer has been interposed. It is sought to have the district court restrained from executing a writ of assistance or proceeding to take evidence for an accounting to determine the amount of damages in the action of B. A Gamble and F. S. Chadbourne against L. J. Hanchett, these petitioners and others, both of which have been ordered by that court. It is claimed the district court was without jurisdiction and acted in excess of its discretion in making these orders, and that therefore it should be enjoined from proceeding with the writ of assistance or accounting. A proper understanding of the questions raised necessitates a reference to the conditions and proceedings in the action mentioned. These are set out generally in the petition for the writ. In the hearing in this court, the petitioners moved to amend the petition by adding the pleadings in the original case, and claimed that there were no issues warranting the aforesaid orders made by the district court. The respondents objected to this amendment and the matter was taken under advisement. Permission is now granted petitioners to make the amendment as requested, or the pleadings in the main case may be considered as a part of the petition for the writ of prohibition, for they allege more fully the facts upon which petitioners rely.

These may be stated, briefly, so far as they are deemed material in determining whether the writ should issue. The main action was brought on an agreement which provided for an option to purchase and for the taking of possession and working for a specified period several mines and other valuable property. A trial was had, and on the 6th day of February, 1909, the district court rendered judgment in favor of the plaintiffs in the action and the defendants Wrights, and against the defendants who are the petitioners here, for eleven-fifteenths of the property, subject to the conditions of a certain option or right of entry into and possession of the premises, and for an accounting or damages. The defendants, who are the petitioners here, moved for a new trial, and their motion for a new trial was submitted on the 8th day of November, 1909. On the 25th day of May, 1909 after notice and hearing and under objection, the court ordered that a writ of assistance be issued. On that day respective counsel entered into a stipulation that the operation of this writ be stayed to the 14th day of June, 1909, and to such other time as the court might set, for hearing and taking of testimony for the determination of the amount of the stay bond, and further stipulated that "the bond as to its form and the sufficiency of the sureties, or surety company or companies thereto, shall be approved by the court or the judge thereof, and shall be to the end and substantially in form as though upon an appeal and given under section 3440, Compiled Laws." After hearing on June 17, 1909, the court made an order that a bond in the sum of $150,000 be filed, and further ordered that the defendants have 10 days in which to prepare and file the bond, and on July 20, 1909, a bond in that amount was filed, and the execution of the writ of assistance was stayed until 15 days after the court's determination of the motion for a new trial. No opinion on the motion for a new trial having been rendered, notice of appeal was filed on the 22d day of January, 1910, the day previous to the time for appeal from the judgment.

On the 27th day of January, 1910, the court made the following order: "It appearing to the court from the statement of the Honorable S. Platt, attorney for defendants, that it is necessary for the court at this time to fix the amount of the undertaking on appeal by certain of the defendants from the judgment heretofore rendered in the above entitled case, to stay execution of said judgment, in so far as the possession of the lands and premises may be concerned, and it further appearing from telegram from attorney for plaintiffs that a $1,000,000 bond is requested to stay execution, and it further appearing from said telegram that plaintiffs consent to a temporary stay of execution, and it further being within the judicial knowledge of the court that the court by reason of other engagements urgent in character is unable to give the matter proper consideration at this time, it is therefore ordered that the defendant may file a bond on appeal from said judgment temporarily in the sum of $300, and that execution be stayed temporarily upon the filing of said bond, and the court hereby reserves unto itself the right to hereafter establish the amount of bond to be permanently used in the stay of said execution, and the court directs that on Saturday, the 12th day of February, 1910, he will hear proofs from plaintiffs and defendants as to the amount of the permanent bond to be filed in staying execution hereunder. This action being done, and this order being herein entered for the reason that the court is unable to give it due consideration, ordered that the clerk furnish counsel with a copy of this order."

Thereupon exception was taken to the order upon the following grounds:

"(1) That said order is erroneous in so far as the court reserves the right to establish and fix the amount of the bond to be permanently used in staying execution, in this: that upon filing notice of appeal and bond on appeal said court is ousted of and has no jurisdiction further to make any order whatsoever in reference to the bond on appeal or in reference to the judgment appealed from or any matter embraced therein.

"(2) That said order is erroneous, in this: that it attempts to fix the amount of bond to temporarily stay execution, when under the law said order fixing the amount of the bond stays execution pending the appeal.

"(3) Said order is erroneous, in this: that it attempts to fix the time during which the bond required by said order shall stay execution, whereas the time during which said bond shall stay execution is fixed by law to wit, sections 3440-3441 of the Compiled Laws of Nevada (Cuttings' Ed.).

"(4) Said order is erroneous in so far as it attempts to set and name a date for hearing proof as to the amount of the permanent bond to be filed in stay of execution.

"(5) That said order fixes the amount of bond necessary to be filed to stay execution, and that in all other respects said order is erroneous."

On the same day--January 27, 1910--a bond was filed providing for $300 for the costs of appeal and for $300, conditioned that during the possession of the premises by the appellants they will not commit waste, and that, if the judgment be affirmed, they will pay the value of the use and occupation of the premises until the delivery of the possession, not exceeding that amount.

On February 16, 1910, the court made the following order "This being the time and place heretofore fixed by the order of the court made and entered on the 7th day of February, 1910, in which to hear proof with respect to fixing the amount of an undertaking to be furnished by the defendants on the appeal from the judgment heretofore entered, in the above-entitled cause, for the purpose of staying the execution of said judgment, in so far as the possession of the lands and premises involved in the said judgment are concerned, the plaintiffs and defendants Wrights being represented by counsel, and the other defendants being also represented by counsel, and whereas no evidence is at this time offered by the parties appearing asking the court to fix the amount of said undertaking as to the amount of the same, and the court, being without sufficient information in the premises, is unable at this time to intelligently establish the amount of the undertaking contemplated under the provisions of section 3440 of the Compiled Laws of the state of Nevada, it is therefore ordered that the further hearing of this matter be continued until such time as the parties to this action desiring the undertaking upon an appeal to be established by this court upon proper notice to the plaintiffs, and upon presenting to the court such competent information, as will enable the court to intelligently establish the amount of the required undertaking. Notice herein required shall be filed and served at least ten days before the time set for hearing." Exceptions were taken to this order on the same grounds as presented against the former order, and upon the further ground that the court has no jurisdiction to enforce the operation of the writ of assistance or to modify or change its order fixing a temporary stay bond of $300, or to make any additional order in furtherance of the judgment entered in the case for the reason that an appeal had already been perfected. Before the last-mentioned order was made, the court made one vacating its original order of the 27th day of January, 1910, fixing a temporary stay bond in the sum of $300. Exception was taken to this order on the same grounds, and it was further objected that the vacating of the order deprived the defendants of any relief as against the operation of the writ of assistance, and was arbitrary and without the jurisdictional power of the court. On the 7th day of February, 1910, the court denied the motion...