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Boyce v. Third Chance M. Co.

December 31, 1913

A. E. BOYCE, RESPONDENT, V. GOLDFIELD THIRD CHANCE MINING COMPANY; JESSIE F. BAILEY, J. F. DOUGHERTY, AND MARVIN ARNOLD, INTERVENERS AND APPELLANTS.


Appeal from the Seventh Judicial District Court; Theron Stevens, Judge.

James K. Redington, for Appellants.

John F. Kunz and R. G. Withers, for Respondent.

By the Court, Norcross, J.:

This is an appeal from a default judgment entered on the 1st day of November, 1909, and from an order made on the 31st day of January, 1910, overruling motion of interveners to vacate and set aside the default and the default judgment. Notice of appeal was filed March 30, 1910. The transcript was filed in this court January 2, 1911. Nothing further appears to have been done in the case until March 15, 1912, when counsel for respondent filed a motion and notice of motion to dismiss for want of prosecution; that the appeal was without merit and taken for delay merely. Affidavits were filed April 1 following upon the part of the appellants to the effect that the delay was due to an oral agreement between counsel that the case was to be taken up and disposed of at some time mutually agreeable to respective counsel.

[36 Nev. 53, Page 55]

Together with the affidavits, the brief on the part of appellants was filed. Conforming to the general practice in this court, the motion to dismiss was heard with the argument upon the merits. While the delay is not accounted for with entire satisfaction, the excuse for the delay, set out in the affidavits filed upon the part of appellants, is not controverted. We are not inclined to dismiss appeals regularly taken unless it clearly appears the appeal was taken merely for delay, or the apparent want of prosecution is not accounted for.

The motion to dismiss is denied.

The only questions discussed in the briefs and oral argument relate to the order refusing to set aside the default judgment. Upon an ex parte order made after the entry of judgment, based upon a petition verified by Marvin Arnold, the applicants were permitted to intervene upon behalf of themselves and other stockholders of the defendant company, who may elect to appear and become parties thereto, for the purpose of moving to set aside the judgment and permit a defense to be interposed to the action. Subsequently the motion to set aside was made and by the court denied.

It appears from the statement on appeal that, prior to the commencement of the action by the plaintiff Boyce, an action had been commenced in the lower court by the said Marvin Arnold against the above-named defendant, Goldfield Third Chance Company, and judgment obtained and entered on March 11, 1909; that on the 1st day of July, 1909, an execution issued on said judgment, and pursuant thereto a levy was made upon all the property of the said defendant, consisting of two mining claims in the Goldfield mining district, and on July 31, 1909, all right, title, and interest of the defendant was sold to Emery Arnold, the son of the plaintiff in said action, and the period for redemption of said real property by the said defendant under said sale expired on January 31, 1910; that on or about the 11th day of January, 1910, the plaintiff, A. E. Boyce, sold, transferred, and assigned for a valuable consideration all his right, title, and interest in and to his judgment obtained on November 1, 1909, to

[36 Nev. 53, Page 56]

Carl G. Johnson and Frank E. Johnson; that on or about the 13th day of January, 1910, the said Carl G. Johnson and Frank E. Johnson served notice upon the said Emery Arnold and his attorney, James K. Redington, and also served said notice upon J. F. Bradley, sheriff of Esmeralda County, State of Nevada, of notice of intention to redeem the said property as redemptioners and assignees of the said judgment obtained by the said A. E. Boyce, and thereupon paid to the sheriff the amount paid by said Emery Arnold for said property under said execution sale, together with all penalties and assessments as required by law, said notice of intention to redeem being accompanied by the requisite affidavits as required by law showing their right to redeem from said execution sale.

The record further shows that upon the hearing of the motion to set aside the judgment, and after certain documentary evidence had been introduced and the testimony of certain witnesses taken, and while a witness was on the stand, “counsel for plaintiff offered to stipulate, and without objection or exception made or offered by or on the part of the interveners, or any one of them, and S. L. Carpenter, attorney at law, being present in court, as the representative of 200,000 shares of stock in the defendant company of certain eastern stockholders, and no objection or exception being offered or taken by the said S. L. Carpenter or by James K. Redington, attorney for the interveners, owning 90,000 shares of stock, it then appearing from the evidence and by the admissions of counsel for the interveners and by the records and files of the court that the effect of granting the motion would be, in the event that the company did not redeem its property sold under execution sale on the judgment obtained by Marvin Arnold, one of the interveners, against the defendant, and purchased at said execution sale by Emery Arnold, son of the said Marvin Arnold, that the said Emery Arnold would take the entire property of the company, and it further appearing that the assignees of the judgment of the plaintiff, A. E. Boyce, would be deprived of all possibility of realizing on the

[36 Nev. 53, Page 57]

judgment, if the property sold was not redeemed by the company, and it appearing by the records, papers and files in this action and in the action entitled Marvin Arnold v. Goldfield Third Chance Mining Company that the said motion, if granted, would not be of any benefit whatsoever to the stockholders of the defendant as such, but would inure solely to the benefit of Emery Arnold, son of the intervenor Marvin Arnold, and that therefore said motion was not made in good faith by the said interveners in behalf of the company, thereupon, in pursuance of the stipulation offered by counsel for plaintiff and not objected to or excepted to by the interveners, and which stipulation ...


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