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Talbot v. Mack

October 1917

G. F. TALBOT, APPELLANT, V. C. E. MACK, RESPONDENT.


Appeal from Second Judicial District Court, Washoe County; Mark R. Averill, Judge.

G. F. Talbot, Sardis Summerfield, Miller & Mashburn, and Robert Richards, for Appellant.

Mack & Green, Geo. S. Green, and A. F. Lasher, for Respondent.

By the Court, McCarran, C. J.:

This was an action in tort instituted by appellant, as plaintiff, against respondent for damages claimed to have been sustained by appellant by reason of libel. The demurrer to appellant's complaint being sustained, and appellant having declined to amend, judgment was entered against him in favor of respondent. From the judgment thus entered and from the order of the trial court in sustaining the demurrer, appeal is taken to this court.

We are first concerned with the matter of a motion to

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dismiss the appeal upon the ground that no assignment of errors was served or filed in this court within the time prescribed by law. In this respect respondent relies on section 13 of an act entitled “An act supplemental to and to amend an act entitled ‘An act to regulate proceedings in civil cases in this state and to repeal all acts in relation thereto,' approved March 17, 1911,” approved March 16, 1915, and found in Statutes of 1915 at page 164. The section reads as follows:

“Within twenty days after any appeal has been taken from any order or judgment, the party or parties appealing shall serve the adverse parties and file with the clerk of the supreme court an assignment of errors, which assignment shall designate generally each separate error, specifying the page and lines of the record wherein the same may be found. Any error not assigned shall not be considered by the supreme court. If the party fails to file such assignment within the time limited no error shall be considered by the supreme court. The assignment of errors herein provided for shall be typewritten, paged, and the lines numbered, and the appellant shall furnish three copies thereof for filing in the supreme court.”

The record as it is before us discloses a total failure on the part of appellant to serve or file any assignment of errors, and appellant seeks by separate motion in this court to have an order made permitting him to file his assignment of errors nunc pro tunc. With the last-mentioned motion it will, in our judgment, be unnecessary for us to deal, in view of the position that we shall here take and which we deem proper under the statute.

Section 11 of the act of 1915, referred to, is as follows:

“The original bills of exceptions herein provided for, together with a notice of appeal and the undertaking on appeal, shall be annexed to a copy of the judgment roll, certified by the clerk or by the parties, if the appeal be from the judgment; if the appeal be from an order, such original bill shall be annexed to such order, and the same shall be and become the record on appeal when

[41 Nev. 245, Page 253]

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

As to what constitutes the judgment roll, our civil practice act, section 5273, Revised Laws (section 331, Civil Practice Act), provides:

“Immediately after entering the judgment, the clerk must attach together and file the following papers, which constitute the judgment roll: (1) In case the complaint is not answered by any defendant, the summons, with the affidavit or proof of service; the complaint with memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment. * * * (2) In all other cases, the pleadings, a copy of the verdict of the jury, or finding of the court or referee, all bills of exceptions taken and filed, and a copy of any order made on demurrer or relating to the change of parties, and a copy of the judgment. * * *”

1. It was not necessary, in view of the specific provisions of the several sections of our statute pertaining to practice on appeals, for the appellant in this case to file or serve an assignment of errors as contemplated by section 13 of the practice act of 1915. The appeal here taken is from the order of the district court sustaining the demurrer to appellant's complaint and from the judgment entered pursuant to appellant's failure to amend; hence under subdivision 2 of section 5273, Revised Laws, all of the matters pertaining to the proceedings in the trial court, so far as those proceedings affect the standing or rights of appellant, are properly here embraced within the judgment roll as certified by the clerk of the district court. Respondents, in furtherance of their motion to dismiss plaintiff's appeal, refer to the decision of this court in the case of Coffin v. Coffin, 40 Nev. 345, wherein we dismissed the appeal upon a motion made for that purpose for the reason that appellant had failed to comply with section 13 of the

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practice act of 1915, inasmuch as he had failed to serve or file his assignment of errors within time. That case is not controlling in the matter at bar. It is distinguished from the case under consideration inasmuch as there the appeal was sought to be taken from the judgment entered after trial on the merits and from the order overruling appellant's motion for a new trial. Here the appeal is from an order sustaining a demurrer. In the Coffin case the errors, if any, were not contended for as pertaining to matters properly appearing in the judgment roll. In the matter at bar the very error contended for, and indeed the only error contended for, is the order of the trial court sustaining the demurrer and pursuant to section 5273, Revised Laws, is properly embraced within and is on the face of the judgment roll. Not only that, but the section of the code last referred to provides that “all bills of exceptions taken and filed” shall be a part of the judgment roll; and in the judgment roll as it is before us we find the bill of exceptions taken to the order sustaining the demurrer and the same duly allowed by the trial judge and filed on the date of the entry of judgment.

If the matters or proceedings which appellant sought to have reviewed by this court on appeal were not properly embraced within the judgment roll, then the motion to dismiss should prevail under the doctrine of the Coffin case, supra. The case at bar falls directly within the provision of section 11 of the practice act of 1915, providing for the consideration of errors which appear upon the face of the judgment roll when appeal is from the judgment alone. Under this provision of the statute it is manifest that the intendment of the lawmakers was to require no assignment of errors in a case such as this, where the order appealed from and the error complained of were all embraced within matters properly belonging to the judgment roll and were brought to this court in that form. Indeed, if it were otherwise, it would at most only require a repetition, by way of assignment of error,

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of that which was already excepted to and assigned as error in the bill of exceptions contained in the judgment roll. This court has held Peers v. Reed, 23 Nev. 404, 48 Pac. 897) that on an appeal taken from the judgment alone, where there is no statement or bill of exceptions in the record, there will be a consideration only of the record constituting the judgment roll. It is in the record constituting the judgment roll that the very error relied upon by appellant is brought to this court. Hence we conclude that no assignment of errors as contemplated by section 13 of the civil practice act of 1915 is necessary or required in such a case.

2. Viewing the matter as we do, it becomes unnecessary for us to determine the question as to the right of appellant to an order nunc pro tunc. Suffice it to say in this respect, however, that we find it to be a rule supported by eminent authority that the object and purpose of a nunc pro tunc order is to make a record speak the truth concerning acts already done. Without determining the question here, we deem it sufficient to intimate that an order nunc pro tunc cannot be made use of or resorted to to supply omitted action. (Wight v. Nicholson, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865; Hyde v. Curling, 10 Mo. 359; Hickman v. City of Fort Scott, 141 U. S. 415, 12 Sup. Ct. 9, 35 L. Ed. 775; Wyllie v. Heffernan, 58 Mo. App. 657; State v. White, 16 Ind. App. 260, 44 N. E. 589.)

This brings us to a consideration of the principal question here involved, namely, the action of the trial court in sustaining the demurrer to appellant's complaint.

The complaint, by way of colloquium or inducement, averred the standing of appellant in the community, relating the fact of his having conducted and demeaned himself with honesty, integrity, and fidelity, enjoying the confidence and esteem of the people of the State of Nevada to a remarkably high degree; of his having held positions of honor and trust within the state; a district judge of one of the judicial districts for a period

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of twelve years, a justice of the supreme court of the state for an equal period, during all of which time he had “never been accused or suspected of having been guilty of any dishonesty or of any lack of integrity or fair dealing, which would injure his reputation or good standing.” The complaint relates:

“That during all of the time between the 20th day of March, 1911, and the 7th day of March, 1916, said plaintiff (appellant here) was a director and the president and one of the members of the executive committee of Nevada Fire Insurance Company, a corporation, organized and existing under and by virtue of the laws of the State of Nevada, doing a general fire insurance business since the 1st day of March, 1914, and having its office at Carson City, Nevada, a part of that time, but now at the city of Reno, State of Nevada; that, as such director, president, and member of said executive committee of said corporation, said plaintiff was during all that time the general, financial, and business manager of said corporation and of the investments, business, and affairs thereof, except that the business of said corporation relating to risks or fire insurance was under the direction of Robert Carlson, an insurance expert; and that plaintiff, with the other directors of said corporation at the times of the meetings of the board of directors thereof, had charge and control of and handled the business and financial affairs and more especially the expenditures of said corporation, and, during the intervals between such meetings of such board of directors, he with the other members of said executive committee at the times of the meetings of said committee, had charge and control of and handled such affairs and expenditures thereof, and, during the intervals between the meetings of said committee and board, he alone had charge and control of and handled such affairs and expenditures of said corporation, except that the business of said corporation relating to risks or fire insurance was so under the direction fo said insurance expert, and investments of the funds of the said company were made on orders

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drawn by the plaintiff and signed by him and other members of the executive committee; that there was no meeting of the said board of directors or executive committee by said corporation from the time said corporation began writing insurance on the 1st day of March, 1914, until the meeting thereof held on the 7th day of March, 1916, except annually; and that, during the intervals between said meetings of said board of directors and those of said executive committee, during that time, said plaintiff had full and complete charge and control of all matters of expenditure of said corporation for the salaries of the employees and officers thereof and for their traveling expenses, except such as were provided for and controlled by the contracts of said corporation with said Robert Carlson and plaintiff providing for their salaries and services.

“III. That on or about the 2d day of March, 1915, at the office of said corporation in Carson City, Nevada, said Nevada Fire Insurance Company, a corporation, made and entered into a contract with the plaintiff herein by which said corporation employed the said plaintiff for a portion of his time only for the period of one year thereafter, to serve said corporation as its president and general counsel and, as such, to exercise general care over its affairs and, in addition to performing the ordinary duties of its president and such other duties as might be directed or advised by its board of directors and executive committee, to draw mortgages, examine abstracts, and assist in making loans, to endeavor to make sales of the treasury stock of said corporation, to secure the writing of insurance, and to increase the business and advance the best interests of the corporation generally, for all of which said plaintiff was to be paid a salary and remuneration by said corporation of $300 per month and 5 per cent of the profits made by said corporation from its underwriting business, or investments, or otherwise during that year, he to devote at least one-half of his time to the duties of such employment and be allowed to practice law during said

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period of one year on his own account, which contract plaintiff faithfully performed.

“IV. That said contract of employment was so made by said corporation pursuant to a resolution duly and regularly offered, moved, and passed by the board of directors of said corporation in and at the regular annual meeting thereof held on or about the 2d day of March, 1915, and that at the time said resolution was so passed the plaintiff herein was one of the directors of said corporation so assembled in annual meeting and was present at the time but did not vote on said resolution; and that he then had been such director and the president of the said corporation and a member of the executive committee thereof and in charge of its affairs generally ever since it was so organized.

“V. That said plaintiff was so employed by said corporation and so elected its said president by the stockholders thereof because of his good reputation and of his business ability and position as hereinbefore stated in paragraph numbered I hereof.

“VI. That said defendant, C. E. Mack, of Reno, Nevada, on the 18th day of January, 1916, at Reno, Nevada, contriving to injure the plaintiff herein, and his general reputation for honesty, integrity, fidelity, business ability, and fair dealing, and thereby expose him to public hatred and contempt, did then and there publish in a letter written and deposited by him in the United States postoffice or mail at Reno, Nevada, postage prepaid, and addressed to one Ed. Carville at Elko, Nevada, one of the stockholders of said corporation, the following words, figures, and characters of and concerning the plaintiff herein:

“‘C. E. Mack Geo. S. Green

“‘Mack & Green, Attorneys at Law.

“‘Rooms 221-222 Odd Fellows' Temple.

“‘P. O. Box 317. Phone 490.

“‘Reno, Nevada, Jan. 18, 1916.

“‘Ed Carville, Elko, Nevada—Dear Sir: I went to Carson on the 31st day of December last and examined

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the books and affairs of the Nevada Fire Insurance Company. I find the company has been doing a good business and undoubtedly will make a small net profit during the fiscal year. I find, however, that the company is overloaded with salary and traveling expense to the extent of nearly ten thousand dollars per year. This expense account should be reduced to $5,000 per year.

“‘As near as I can learn the board of trustees have not met since last March.

“‘I urge you to attend the next stockholders' meeting to be held on March 7th next, and if you cannot attend said meeting, then if you will sign and send me the enclosed proxy, I will attend the next meeting of the stockholders and vote every share sent to me, together with my own, in favor of reducing the salary and traveling expense account from ten thousand dollars to five thousand dollars per annum. When this is done I am satisfied that within twelve or eighteen months the Nevada Fire Insurance Company can pay a dividend to its stockholders.

“‘As I am not personally acquainted with many of the stockholders, for that reason I refer you to the Farmers' & Merchants' National Bank of Reno, the Lyon County Bank of Yerington, and the Bank of Sparks, at Sparks, as to my standing in the community in which I reside.

Sincerely yours, C. E. Mack,

“‘Stockholder of the Nevada Fire Insurance Company'

—and that said plaintiff is informed and upon such information verily believes, and therefore alleges upon such information and belief, that on or about the 18th day of January, 1916, at Reno, Nevada, said defendant, contriving to injure the plaintiff herein, and his general reputation for honesty, integrity, fidelity, business ability, and fair dealing, and thereby to expose him to public hatred and contempt, did then and there publish in about 260 other letters identical with that herein before quoted, except as ...


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