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Daly v. Lahontan Mines Co.

October 1915

J. H. DALY, APPELLANT, V. LAHONTAN MINES COMPANY (A CORPORATION), ET AL., RESPONDENTS.


Appeal from the First Judicial District Court, Lyon County; Frank P. Langan, Judge.

J. H. Daly and John Lothrop, for Appellant.

Mack & Green, for Respondents.

By the Court, Coleman, J.:

This is an appeal from a judgment for costs in favor of defendants, respondents herein, following an order sustaining a general demurrer to appellant's complaint.

The complaint alleges that during the year 1910 the Ramsey Comstock Mining Company, a foreign corporation, was engaged in mining in Lyon County, and became indebted to numerous persons. That on November 11, 1910, one John Topogna commenced an action in the district court of Lyon County to foreclose a mechanic's

[39 Nev. 14, Page 18]

lien; that on the same day a similar suit was commenced by one M. G. Gardella, and that the two actions were consolidated; that on the 12th day of that month a summons was issued in said consolidated action and placed in the hands of the sheriff for service; that his return was as follows:

“I hereby certify that I received the within summons on the 12th day of November, A. D. 1910, at 4 o'clock p. m., and duly served the same by personally delivering a true copy thereof attached to a certified copy of the complaint to A. H. Mayne, manager of said Ramsey Comstock Mining Company, in Lyon County, on the 4th day of November, 1910, by delivering to him a true copy thereof, and by showing him this original.”

It also appears from the complaint that notice was published, according to law, notifying all persons having liens upon the property against which said Topogna and Gardella liens were sought to be foreclosed to exhibit proof of same before the district court on December 17, 1910. The section of the statute requiring the notice is Rev. Laws, 2227, and reads:

“* * * And at the time of filing the complaint and issuing the summons the plaintiff shall cause a notice to be published at least once a week, for three successive weeks, in one newspaper published in the county, and if there is no newspaper published in the county, then in such mode as the court may determine, notifying all persons holding or claiming liens under the provisions of this act on said premises, to be and appear before said court on a day specified therein, and during a regular term of such court and to exhibit then and there the proof of their said liens. * * *”

It also appears from the complaint that, notwithstanding the Topogna-Gardella suit, and the notice given in that case to lien claimants, on December 1, 1910, one William Ross commenced a suit in the same court against the Ramsey Comstock Mining Company to foreclose certain labor liens, in which case service of summons was made upon the defendant company the same day, and that

[39 Nev. 14, Page 19]

notice was published according to law (quoted supra), notifying all lien claimants to exhibit their claims in said suit on or before January 5, 1911, pursuant to which notice several claimants exhibited their claims. On January 20, 1914, the defendant having failed to appear in the consolidated suit of Topogna and Gardella, its default was entered, and on that day the court entered judgment in favor of the plaintiffs, and against the defendant, Ramsey Comstock Mining Company. In the suit of Ross against the Ramsey Comstock Mining Company the default of the company was entered March 8, 1911, and on the same day judgment was entered by the court in favor of Ross and against the company.

It is further alleged that during the month of February, 1911, the sheriff of Lyon County sold the property in question under an order of sale in the case of Topogna et al. v. Ramsey Comstock Mining Company, and that the plaintiffs in the case were the purchasers, and that the certificate of sale was assigned to the defendants, C. E. Mack and George Green, to whom it is alleged a sheriff's deed issued conveying the property, and that the defendant, the Lahontan Mines Company, claimed to own the property in question, pursuant to a conveyance from Mack and Green. It is also alleged that by virtue of an order of sale made by the court in the case of Ross v. Ramsey Comstock Mining Company, the sheriff of Lyon County, on the 18th day of April, 1911, sold the property to William Ross, after having given due and legal notice of the sale, and on said last-named day issued to him a certificate of sale for said property; that on the 21st day of September, 1911, said C. E. Mack and George Green instituted an action in the district court of Lyon County against D. P. Randall, as sheriff of said county, to restrain him from issuing a sheriff's deed to said William Ross to said property, pursuant to the certificate of sale last mentioned; and that thereafter judgment and decree was entered in favor of said Mack and Green, and against said Randall, as such sheriff, permanently enjoining him from issuing such deed. It is further alleged that appellant

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was, at the time of the commencement of this action, the owner of the certificate of sale which was issued to said Ross, and of all rights thereunder. No appeal was taken in any of the cases mentioned herein.

1. Respondents, in apt time, made a motion to dismiss this appeal on two grounds: (1) Because no statement on appeal was served, as provided by section 5331, Revised Laws, and (2) because the transcript of the record was not filed in this court within the time allowed. Section 5338, Revised Laws, provides:

“* * * A party may appeal upon the judgment roll alone, in which case only errors can be considered which appear upon the face of such judgment roll.”

Section 5273, Revised Laws, provides that the judgment roll shall consist of:

“1. * * * 2. * * * The pleadings, * * * and a copy of any order made on demurrer, * * * and a ...


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