Wren v. Dixon

• Decision Date: 06 July 1917
• Docket Number: 2259.
• Citation: 167 P. 324,40 Nev. 170
• Parties: WREN ET AL. v. DIXON.
• Court: Nevada Supreme Court

167 P. 324

40 Nev. 170

WREN ET AL. v. DIXON.

No. 2259.

Supreme Court of Nevada

July 6, 1917

Appeal from District Court, Eureka County; Peter Breen, Judge.

Petition for writ of error to United States Supreme Court. Petition denied.

For former opinion, see 161 P. 722.

Sweeney & Morehouse, of Reno, for appellants.

Henderson & Caine and R. Carey Van Fleet, all of Elko, for respondent.

McCARRAN C.J.

The earnestness with which this petition for writ of error was presented has caused me to give it more than usual attention. Especially is this true in view of the fact that a similar application may be made to any of the justices of the Supreme Court of the United States.

It must be understood that in the first instance no federal question or matter of which the federal court would take cognizance was presented to this tribunal. It was only on petition for rehearing that a federal question was suggested. The Supreme Court of the United States has on a number of occasions laid down the rule that to suggest or set up a federal question for the first time in a petition for rehearing in the highest court of the state is not in time. Encyclopedia of United States Supreme Court Reports, vol. 1, p. 624. Petitioner here contends that the authorities supporting the text here cited are not pertinent or binding in the matter at bar, inasmuch as the federal question sought to be raised was not in existence until after the filing of our opinion and decision. In other words, petitioner contends that by the decision of this court the federal question was created.

This case was tried in the court below, and came to this court upon an agreed statement of facts, one phase of which was that defendant, respondent here, held the property in question by adverse possession as against appellants, and the agreed statement of facts in that respect sets forth as follows:

"That immediately after the receipt by the said Thomas Dixon of the certificate of sale of said patented mine and mill site for the nonpayment of taxes for the year 1909, he, the said Thomas Dixon, defendant herein, entered into the possession of said patented mine and mill site, and has remained in the actual, continued, open, notorious, and exclusive possession thereof, claiming the same adversely to all persons, since the month of January, 1910; that during the years 1910, 1911, 1912, and 1914 the county assessor assessed said property, to wit, said

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