State v. Central Pac. R. Co.
| Decision Date | 06 April 1891 |
| Docket Number | 1,335. [1] |
| Citation | 26 P. 225,21 Nev. 172 |
| Parties | STATE v. CENTRAL PAC. R. Co. |
| Court | Nevada Supreme Court |
Appeal from district court, Lander county; A. L. FITZGERALD, Judge.
The Attorney General, W. D. Jones, and Henry Mayenbaum, for the State.
Baker & Wines, for respondent.
This action was brought to recover from the defendant the taxes due Lander county for the year 1889. Included in the property assessed are 29.15 miles of road-bed and main track of the railroad, at a valuation of $14,000 per mile. Upon the trial under proper allegations, the records of the board of equalization of Lander county were offered in evidence by the defendant. They show that on September 24, 1889, the defendant filed a complaint with the board asking that its assessment be reduced to $9,000 per mile. At the same time one Dickson also filed a complaint asking that it be raised to $20,000 per mile. The two complaints were heard together and on the same day the board made an order that the assessment remain, as fixed by the assessor, at $14,000 per mile. On October 7, 1889, the board met again, and a motion to reconsider their former action was adopted. Thereupon another motion was made, and also adopted, to reduce the assessment to $12,000 per mile. To the offer of these records the plaintiff objected, upon the ground that the action of the board on September 24th was final and conclusive, and could not be reconsidered on October 7th; that in making the last-named order the board acted without authority or jurisdiction. The objection was overruled, and the records admitted. The defendant also claimed that 76-100 miles of the road assessed was in dispute between Lander and Eureka counties, and that under the statute authorizing such payment it had paid the taxes thereon to Eureka county. Judgment was rendered for the state for 28.39 miles of road at a valuation of $12,000 per mile. Both parties have appealed; the defendant upon the ground that the valuation of $12,000 per mile was excessive, and that a certain school tax was improperly included in the judgment. Upon this appeal the judgment was affirmed, (25 P. 296,) and upon the return of the remittitur to the court below it was paid in full to the district attorney. The plaintiff's appeal is founded upon the claim that the judgment should have been for the full number of miles of road assessed, valued at $14,000 per mile.
1. The defendant now moves to dismiss this appeal upon the grounds that the acceptance by the district attorney of the money due upon the judgment as affirmed is a waiver by the state of the errors assigned, that the state cannot both enforce the judgment and appeal from it. A party may appeal from the whole or any part of a judgment, (Gen. St. § 3353; Hayne, New Trials & App.§ 185;) and upon the hearing of an appeal the supreme court may reverse, affirm, or modify a judgment, or affirm it as to some issues and reverse as to others, (Gen St. § 3361: Hayne, New Trials & App. § 295.) Under these circumstances, it would seem reasonable, where several independent issues are tried in a case, and the appeal is only taken from the judgment upon some of them, that, if error is found, the reversal should only be as to the issues appealed from, leaving it to stand upon the others. Even where the appeal is from the whole judgment, in which several independent issues have been determined, it would seem proper that it should only be reversed as to those in which error is found. In this case the judgment was for the plaintiff upon some issues, and for the defendant upon others. Each party has appealed from that which was against itself. The appeals are separate and distinct, upon different questions, and the judgment upon one need not in any manner affect the other. After the affirmance of the judgment upon the defendant's appeal there could be no further question that the plaintiff was entitled to the money thereby awarded to it. That is settled; and the only question now is, whether it is not entitled to more. Why, then, should the acceptance of this money, which was unquestionably due it, and which the reversal of the judgment upon this appeal will not require it to pay back, or in any manner affect, work a waiver of the right to appeal upon other issues decided against the plaintiff? Where a reversal upon the plaintiff's appeal would require him to refund to the defendant money or property which he has obtained under the judgment, there is reason for holding that the acceptance of the benefits of the judgment is a waiver of the right to appeal. Having elected to receive the fruits of the judgment, he is estopped from attempting to destroy the very foundation of his right to receive them. But where a reversal would not work this result, where his right to what he has received would still remain intact, it is difficult to conceive why he should not be allowed to take what is now, and always will be, his, and still prosecute his claim for more. This distinction is quite clearly drawn in Embry v. Palmer, 107 U.S 3, 2 S.Ct. 25; Bennett v. Van Syckel, 18 N.Y. 481; Reynes v. Dumont, 130 U.S. 394, 9 S.Ct. 486,--and other cases, which support the conclusion to which we have come. There are decisions which seem to hold the contrary, but, if so, we decline to follow them, believing that they are not...
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State v. Central Pac. R. Co.
...1,335.Supreme Court of NevadaJuly 6, 1891 Response to a petition for rehearing. For statement of facts, see the prior report of this case, 26 P. 225. J. A rehearing is asked in this case upon the ground that, instead of judgment being ordered in favor of the plaintiff, a new trial should ha......