State v. Alta Silver-Min. Co.

• Decision Date: 02 February 1898
• Docket Number: 1,512.
• Citation: 51 P. 982,24 Nev. 230
• Parties: STATE v. ALTA SILVER-MIN. CO.
• Court: Nevada Supreme Court

51 P. 982

24 Nev. 230

STATE v. ALTA SILVER-MIN. CO.

No. 1,512.

Supreme Court of Nevada

February 2, 1898

1. An undertaking on appeal is not executed until it is delivered to the clerk for filing.

2. Where the record shows that the notice of appeal was filed and afterwards, on the same day, the undertaking on appeal was filed, in the absence of any showing to the contrary it will be presumed that it was properly filed after the filing and service of the notice of appeal, or contemporaneously therewith.

3. Under Civ. Prac. Act, § 341, it is not necessary that the residence or occupation of sureties be given, in an undertaking on appeal.

4. St 1864-65, p. 328, being "An act to create a fire department fund," providing for a levy upon the assessed value of property within unincorporated towns, for the benefit of the fire departments in such towns, applies to towns which were incorporated at the time of the passage of the act, but which have since become unincorporated, as soon as they become so.

5. If a tender, duly made, of a part of the taxes levied on property is sufficient to pay what should have been legally assessed against the property, it will save any penalties and costs attaching; but, if not sufficient, it will not prevent penalties and costs attaching to that portion of the taxes tendered.

Appeal from district court, Storey county; C. E. Mack, Judge.

Action by the state of Nevada against the Alta Silver-Mining Company to recover taxes. Judgment for plaintiff. Defendant appeals. Reversed.

W. E F. Deal, for appellant.

George N. Noel, Dist. Atty., and F. M. Huffaker, for the State.

BONNIFIELD J.

Action to recover taxes due for the year 1896, amounting to $1,242, and penalties and costs. The property described (about which there is contention as to value) consists of a certain quartz mill and certain hoisting works belonging to the Alta Silver-Mining Company, situated in the town of Gold Hill, Storey county. The assessor placed the value of the mill at $10,100, and the hoisting works at $20,000. The company, in the statement to the assessor, put the value of the one at $5,000, and of the other at $10,000. The board of equalization reduced the assessor's valuation of the quartz mill to $6,000, and of the hoisting works to $18,000. By the answer it is alleged that said assessment of $24,000, as equalized by said board, is in excess of the true cash value of said property, and that the true cash value thereof is the sum of $15,000. The jury found the value of the property to be $24,000. Judgment was given for said sum of $1,242, with the penalties and costs. This appeal is taken from the judgment, and from the order of the court below denying appellant's motion for new trial.

Counsel for respondent moved for an order of this court dismissing the appeal on the ground of the insufficiency of undertaking: First. "In this; that said undertaking was executed before the notice of appeal therein had been filed or served." Second. "In this: that the residence or occupation of the sureties named, and executing said undertaking, are not set forth therein." The record shows that the notice of appeal was filed on the 21st day of September, 1897, and afterwards, on the same day, it was duly served. It also shows that the undertaking was filed on the same day, and, in the absence of any showing to the contrary, it will be presumed that it was properly filed; that is, that it was filed after the filing and service of the notice, or contemporaneously therewith. The undertaking being signed by the sureties, and their affidavits thereto being taken, on the 20th day of September, it is claimed that it was executed before the filing and service of the notice of appeal; but the undertaking was not executed till it was delivered to the clerk for filing. Section 342 of the civil practice act is cited by counsel in support of their contention that the undertaking is insufficient because the residence and occupation of the sureties are not set forth therein. That section has reference to an undertaking given to stay execution. Whether it is sufficient for that purpose or not is not a matter for inquiry before this court. It is sufficient under section 341 to perfect the appeal. That section does not require the residence or the occupation of the sureties to be set forth in the undertaking or otherwise. State v. California Min. Co., 13 Nev. 203. The motion is denied.

The Levy. It appears that the board of county commissioners of said county for the fiscal year 1896 levied among other taxes upon all the property within the limits of said town an ad valorem tax of $1.40 upon each $100 value of said property for the purposes of said town, and likewise a tax of 20 cents...