MEADOW VALLEY MINING COMPANY et al., Respondents, v. ELLIOTT DODDS et als., Appellants
Meadow Valley Mining Co. v. Dodds
Garbee,, J., did not participate in the foregoing decision.
MEADOW VALLEY MINING COMPANY et al., Respondents, v. ELLIOTT DODDS et als., Appellants.
MEADOW VALLEY MINING COMPANY et al., Respondents, v. ELLIOTT DODDS et als., Appellants.
Order Requiring} Bond or Appointing Receiver not Appealable. The statute (Practice Act, Sec. 330) does not allow an appeal from an order requiring a party to give a bond, nor from an order appointing a receiver.
Order Appealable only in part. Where, upon a rule to show cause why an injunction should not issue, an order was made that defendants, in consideration of their retaining control of the premises in controversy, should give a bond.to pay all damages that plaintiff might sustain ; that in default thereof, a receiver should be appointed ; and that defendants might make improvements, but not remove any improvements already made, nor commit waste: Reid, that if the order was appealable at all, it was only in so far as it placed an injunction upon defendants.
Relief on Appeal erom Order Appealable only in part. Where an order granting an injunction embraced a further order, entirely independent of the injunction, to the effect -(hat one party should execute a bond for the protection or security of the other : Reid, on appeal therefrom, that the entertainment by the appellate Court of the portion of the order which was appealable would not warrant a review of the other portion which was not appealable.
Order Embracing Distinct and Independent Orders. Where an order embraces matters really independent and distinct, the mere fact that they are so ■ embraced or made at the same time and written on the same paper, does not • make them one and the same order.
Assignment or Specifications of Errors on Appeal. Where on appeal from an order, appellant brought up a statement of the evidence heard and proceedings had, claiming that it exhibited various errors of the Court, and showed that plaintiff failed to make out a ease, but without pointing out the particular errors or failure: Reid, that as there was no assignment or specification of such alleged errors, they could not be reviewed by the appellate Court.
Sufficiency of Complaint for Injunction to stay Waste. Where a complaint alleged that plaintiff was the owner and entitled to the possession of lands, that there were improvements thereon, that defendants were in possession and threatened to destroy and would if not enjoined destroy such im,-provements, and' that defendants were insolvent and unable to respond in damages: Reid, sufficient to support an order enjoining defendants from removing the improvments or committing waste.
Intendments in favor of Complaint after Judgment. After a verdict or decision in a District Court upon issue joined, the complaint will be supported by every legal intendment, if there be nothing material in the record to prevent it.
Intendments in favor of Complaint after Order based upon it. The rule that carries every legal intendment in favor of a complaint in case there has been a judgment thereon after issue joined, equally applies in case of an order, such as an injunction, made upon it after a full hearing.
Appeal from the District Court of the Ninth Judicial District, Lincoln County.
This was an action by the Meadow Valley Mining Company, John H. Ely and W. H. Raymond, against Elliott Dodds, William Dodds, Frank Dodds, Thomas Dodds and other parties unknown, to recover restitution of the “ Floral Spring Ranch ” in Highland District, Lincoln County, and damages for the loss, of the rents and profits thereof; and also for an injunction to restrain defendants from further interfering with or taking away the valuable waters of the springs upon said ranch, and from destroying the improvements thereon.
The statement on appeal was a narrative of the proceedings before the Judge below upon the order to show cause why an injunction should not issue. It set forth that documentary evidence and oral testimony were introduced, giving the documents in full and the testimony in substance; and also setting forth the various objections made, the rulings of the Court, and the exceptions of appellants ; but not pointing out particularly what would be relied on as error.
Ellis King, for Appellants.
K. I. Thornton and Wm. W Bishop, for Respondents.
By the Court,
Lewis, C. J.: •
This appeal is from the following order made by the Court below before trial, upon a rule to show cause why an injunction should not issue against the appellants : " It is ordered and adjudged that the defendants give to the plaintiff a good and sufiScient bond in the sum of five thousand dollars gold coin, to be approved by the Court, conditioned that said defendants shall, in consideration of retaining possession and control of the premises and water in the complaint described, during the pendency of this action, pay the plaintiff such sum of money for their damages and costs as it may sustain by reason of the acts of defendants, should the plaintiff finally recover in this action. It is • further ordered that in case said bond shall not be filed with the clerk of this Court on the fifth day of November, A. D. 1870, at one o'clock p. M., that then a receiver will be ap pointed by the Court to take charge of the property in dispute and sell the water at the same. It is also ordered that the defendants may, during the time before this cause shall come on for trial, make such improvements upon said property as they desire to make, but they shall not remove any improvements therefrom or commit any waste thereon."
The first question naturally suggesting itself upon this appeal is whether this rather unusual order is one of those from which an appeal is allowed. Section three hundred and thirty of the Code of Procedure designates all the decisions or orders from which an appeal may be taken: First, it is allowed from " a final judgment in an action or special proceeding commenced in the Court in which the judgment is rendered; second, from a judgment rendered on an appeal from an inferior Court; third, from an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from any special order made after final judgment;, fourth, from an interlocutory judgment or order in cases of partition which determines the rights of the several parties, and directs partition, sale, or division to be made.
It is apparent at a glance that this order is not embraced in this section, unless the latter portion of it, whereby the defendants are prohibited from removing improvements and committing waste can be called an injunction. Possibly it may be so ; at least we will so consider it for the purposes of this appeal. It must be borne in mind, however, that 'nothing in the order quoted can be reviewed on this appeal, except that portion which may be designated an injunction. As the statute does not allow an appeal from an order requiring a party litigant to give a bond as is done here, nor an order appointing a receiver, it is evident that it was not intended to permit a review of the action of the lower Court in matters of that kind, except upon an appeal from the final judgment. If an order granting an injunction also embrace, as in this case, a further order or requirement entirely independent of the injunction, that a party execute a bond for the protection or security of the other, we do not see that an appeal from that portion of the order which is ap-pealable -will warrant a review of another portion which is not, and which, although embraced in the same order, is really independent and distinct in itself. That they were made at the same time or written on the same paper does not make them one and the same order. That may be, and still the orders be as distinct and independent as if made at different times and reflecting different subjects.
It must be determined from the body and subject matter of the mandate of the Court whether it embraced more than one order. The order requiring the defendant to give a bond in the sum of five thousand dollars, as security to the plaintiff in case it recover judgment, is in no way dependent upon or connected with the injunction placed upon the defendants in the conclusion of the order, and it is only by treating that as an injunction order that this case can be held to be before this Court at all.
The appellant brings up a statement of evidence and the proceedings had at the hearing upon the order to show cause, claiming that it exhibits many errors committed by the Court below, and also that it shows that plaintiff failed to make out a case on the merits entitling him to relief. None of these points, however, can be reviewed here, for the reason that the statement, if it may be so-called, contains no assignment or specification of the errors to be ruled on. (See Corbett v. Job, 5 Nev. 201; Practice Act, Sec. 332.)
It only remains to be determined, then, whether the complaint warrants or will support an order enjoining the defendants from removing improvements or committing waste on the premises in dispute pending the trial. That pleading is perhaps not entirely formal or complete, but it seems to contain sufficient to sustain the order. We may conclude from it that there are improvements of some kind on the demanded premises; that the defendants are in possession: that they threaten to destroy, and will if not enjoined destroy such improvements, and that they are insolvent and unable to respond in damages. Taken entire, we are inclined to think the complaint sufficient, if not on demurrer, at least after joinder of issue, the introduction of evidence and granting of the order, for the same rule whereby the sufficiency of a pleading is tested after judgment equally applies after an order of this kind made upon a full hearing. That rule, it will be remembered, is that after verdict or decision in an action, when issue is joined, the Courts will support the pleading by every legal intendment, if there be nothing material in the record to prevent it.
It follows that the injunction must be affirmed. It is so ordered.
Garbee,, J., did not participate in the foregoing decision.