M. C. KRESS, Appellant, v. GUS D. COREY, Et Al., Respondents
Kress v. Corey
Eather, C. J., and Watson, District Judge, concur.
M. C. KRESS, Appellant, v. GUS D. COREY, Et Al., Respondents.
M. C. KRESS, Appellant, v. GUS D. COREY, Et Al., Respondents.
No. 3423
January 12, 1948.
189 P.2d 352
Morse & Graves, of Las Vegas, for Appellant.
Thruston & McNamee, of Las Vegas, for Gus D. and John D. Corey, Respondents.
Lewis & Hawkins, of Las Vegas, for Arthur C. and Harry C. Pauff, Respondents.
OPINION
By the Court,
Badt, J.:
Plaintiff in the court below, M. C. Kress, has appealed to this court from the order and judgment of the lower court dismissing his complaint for a declaratory judgment, assigning error, among other things, in the sustaining of the general and special demurrers of the defendants Gus D. Corey and John D. Corey and of the defendants Arthur C. Pauff and Harry C. Pauff. Other errors are assigned and will be discussed later. The case is the first one to reach this court in which there has been brought into question the right of a plaintiff to seek relief under the uniform declaratory judgment act by reason of the various relationships existing between the parties as alleged by the plaintiff.
Plaintiff's original complaint, denominated "complaint for a declaratory judgment," sought a declaration of plaintiff's rights and liabilities under an execu-tory written contract set forth as an exhibit wherein the defendants Corey undertook to sell and the plaintiff and one C. B. Turner, not named as a party to the action, undertook to buy a going restaurant and cafe business, the merchandise, personal property and fixtures appertaining thereto and the unexpired term of the lease of the premises held by defendant Gus D. Corey as assignee of the original lessee of the defendants Pauff.
Plaintiff prayed for a declaration determining the validity of this contract and the respective rights of the parties thereto as against the claim of the defendants Pauff that said contract was in breach of a purported covenant in their lease with defendant Gus Corey, prohibiting assignment or underletting without the written consent of the lessors. Declaration of the rights and liabilities of the parties under the lease was also sought. Injunctive relief and general equitable relief were also prayed.
Upon application of plaintiff, the district court issued a preliminary injunction, enjoining the defendants, pen-dente lite, from interfering with plaintiff's peaceful use and occupation of the premises in controversy and the personal property located thereon, and restraining the defendants from negotiating or otherwise hypothecating a certain promissory note in the sum of $17,442.48, payable at the rate of $1,000 per month, which had been executed by plaintiff in part payment of the purchase price under the disputed agreement, the note then 'being in the possession of defendant bank as security for a certain indebtedness of the Coreys to the bank. On the same day, the district court made its order, providing that, pending the further order of the court, the plaintiff should deposit with the clerk of the court, certain sums falling due each month under the provisions of the contract of sale between plaintiff and the defendants Corey in lieu of making such payments to them.
Thereafter, plaintiff having by leave of court filed an amended complaint, the defendants C'orey and the defendants Pauff separately filed their general and special demurrers thereto. In substance, the demurrer of the defendants Corey was directed to the sufficiency of the complaint to state a cause of action against them for declaratory or equitable relief or otherwise, in view of the asserted absence of a justiciable controversy. The Pauff demurrer averred in addition a misjoinder of parties defendant and a misjoinder of causes of action, in the absence of a showing of privity of contract between plaintiff and said defendants or community of interest in any question of fact or law. The defendants Corey also filed their notice of motion to strike certain portions of the amended complaint and their notice of motion to dissolve the preliminary injunction and to vacate or set aside or modify the order directing deposit in court. The defendants Pauff filed their separate notice of motion to dissolve the preliminary injunction. Defendant First National Bank of Nevada failed to appear or plead and its default was duly entered. Plaintiff filed a notice of motion to continue in full force and effect, pendente lite, the preliminary injunction and the order directing the deposit of moneys with the clerk of the court, which motion the court granted. After hearing, the court made its order and judgment sustaining the demurrers of the defendants Corey and the defendants Pauff to plaintiff's amended complaint without leave to amend, dismissing the action, dissolving the temporary injunction, and releasing the deposits paid into court by plaintiff.
The amended complaint alleged that on or about March 26, 1940, defendants Arthur C. Pauff, and Harry C. Pauff, as fee owners of the real property in controversy, entered into a ten year lease of the premises with one G. C. Christopher, terminating May 1, 1950, and providing for a rental of $170 per month, this lease being embodied in a written instrument, pleaded in haec verba as plaintiff's Exhibit "A"; that plaintiff had never been furnished with an original or duplicate original of the lease, but only with what purported to be a typewritten copy of said lease bearing the typewritten signature of said G. C. Christopher but bearing no signature of the Pauffs whatsoever; that this typewritten copy does not contain as a term or condition that the lessee shall not "let or underlet the whole or any part of said premises," but that plaintiff has been informed that such term was included in the original lease; that in view of these facts, plaintiff does not know whether or not this alleged term is in fact one of the terms of the lease; that on or about December 25, 1940, Christopher made a written assignment of the lease to defendant Gus D. Corey with the written consent of defendants Pauff; that, thereafter, defendants Gus D. Corey and John D. Corey entered into possession and occupation of the demised premises, operating thereon a restaurant and cafe business.
That on April 5, 1943, defendants Corey entered into an instrument in writing with plaintiff and with defendant C. B. Turner, to whose interest thereunder plaintiff has since succeeded; that by the terms of this instrument, pleaded in haec verba as plaintiff's Exhibit "B," plaintiff and Turner, as buyers, paid to defendants Corey, as sellers, the sum of $7,000 cash, signed a promissory note in favor of defendants Corey in the sum of $17,442.48, payable at the rate of $1,000 per month with interest at the rate of 5 percent per annum, and agreed to pay, on account of defendants Corey, the sum of $1,067.52 to the First Industrial Loan Company of California, or a total consideration of $25,510; that it was mutually understood and agreed by the parties to this instrument that the consideration for this $25,510 paid, and agreed to be paid, by the buyers, consisted solely of the value of the unexpired term of the lease, and of the value of the restaurant and cafe business being conducted upon said premises together with such merchandise, furniture, furnishings, fixtures and equipment as pertained thereto, which it was contemplated that the buyers would take over as a going concern and operate as such for the full unexpired term of the lease; that "the entire consideration of $25,510.00 was mutually predicted upon the mutually assumed fact that the defendants, Gus D. Corey and John D. Corey, could legally contract to sell and plaintiff could legally contract to purchase the entire unexpired term of said lease and said business as a going concern, and that plaintiff could legally continue to operate the same as a going business and have legal and peaceful possession of said premises to and until May 1, 1950 at a rental of $170 per month, being the unexpired term of the said Gus Corey lease."
That by the further terms of the agreement of April 5, 1943, the sellers undertook to have the lease of the demised premises assigned to the buyers, but with the further proviso that in the event that the owners should refuse to consent to such assignment "nevertheless, in such event, it shall not affect, diminish, or nullify this agreement or the terms thereof, but the sellers shall allow the buyers to occupy the said premises under the terms of said lease without further consideration to sellers as if buyers were the assignees thereof, provided buyers pay to said Gus Corey the rentals in amount, time and manner provided for therein, which sellers agree to pay to the person .or persons entitled thereto under said lease"; that the sellers undertook further,, within sixty days, to deliver to the escrow holder, defendant First National Bank of Nevada, a corporation, either the lease of the demised premises assigned to the buyer, or, in lieu thereof, the affidavit of the sellers that the owners of the premises refused to consent to an assignment of the lease; that the promissory note executed by the buyers in part payment of the consideration should be deposited with defendant corporation for collection, with the proviso that when said note had been paid in full, defendant corporation, as escrow holder, should deliver to the buyers sellers' bill of sale, affidavit showing compliance with the Bulk Sales Law, and. the assigned lease, or in lieu thereof, the affidavit of sellers above mentioned; that it was further provided in said agreement that time should be the essence of the contract, that "the property in the business, lease and goods sold" should vest in the buyers only upon payment in full of the purchase price and complete performance by them of all other terms and conditions by them agreed to be performed, and that should any default be made in said payments or performance by the buyers of other terms and conditions, the sellers might at their option, either enforce payment of the entire unpaid balance under said agreement, or forfeit the interest of buyers under said agreement, reenter upon said premises, and retain as liquidated damages áll sums theretofore paid by buyers under said agreement.
The amended complaint alleged performance by plaintiff, as well as his continuous possession and payment of rent; that after the order referred to all payments were deposited with the clerk of the court, and that he was ready, able and willing to continue to perform.
. The amended complaint further alleged breach by the defendants Corey, and/or failure of consideration thereunder, in the following particulars: that they did not within the time specified notify the landlords, defendants Pauff, concerning the sales transaction between themselves and plaintiff, but did, at some later date, make a colorable request upon said defendants Pauff to consent to an assignment of the lease to plaintiff; that prior to said request, however, and at times subsequent thereto, defendants Corey asked defendants Pauff to disregard their formal request for consent to assignment of the lease and to refuse to give their consent thereto; that to influence the defendants Pauff to withhold their consent to assignment of the lease, defendants Pauff falsely represented that plaintiff was irresponsible, was running down the business, and that defendants Corey would be compelled to repossess said business and premises; that defendants Pauff were influenced by said representation to withhold their consent to assignment of the lease; that consequently there has been a partial failure of consideration, consisting of the reasonable value of eighteen months of the unexpired term of said lease which plaintiff will lose in the event that plaintiff should be compelled to enter into a new lease with defendants Pauff, as thereinafter alleged; that the reasonable value thereof, and plaintiff's damage therein, is the sum of $30,000; that by reason of said actions of defendants Corey, in breach of their assignment with plaintiff, there has been a failure of consideration in regard to so much of the agreement of April 5, 1943, as provided that in the event of refusal of the owners of the demised premises to agree to assignment of the lease, the sellers, defendants Corey, would nevertheless permit the buyers to occupy said premises "provided buyers pay to said Gus Corey the rentals, in the time and manner provided therein, which sellers agree to pay to the person or persons entitled thereto under said lease"; that the terms and provisions of the agreement of April 5, 1943, aforesaid, have been rendered impossible of performance by reason of the refusal of the defendants Pauff to accept such rentals from defendants Corey, and that in consequence thereof said agreement should be reformed in this regard; that the Coreys refused to accept the August 1943 rent and instructed plaintiff to send it to the Pauffs, who in turn refused to accept it, but served the Coreys with a notice of termination of their lease upon the ground that they had assigned or sublet without the prior written consent of defendants Pauff, in violation of the lease; that, after receiving said notice of termination from defendants Pauff, defendants Corey nevertheless demanded that plaintiff pay to them the sum of $340 as rental upon said premises for the months of August and September and informed plaintiff that unless said rentals were immediately paid to them they would declare a forfeiture of their agreement of April 5, 1943; that, pursuant to this demand and threat, plaintiff paid the Coreys $340, which they kept; that they did not within sixty days deposit in escrow their affidavit of refusal of defendants Pauff to consent to assignment of the lease, but did, at some subsequent date unknown to plaintiff, and after their acts and conduct had influenced defendants Pauff to refuse to give their consent thereto, deposit said affidavit, in escrow; that by reason of said acts and conduct of defendants Corey, said affidavit was meaningless and ineffectual.
• That at a time subsequent to serving upon defendants Corey their notice of termination of the lease, to wit, on or about October 4, 1943, defendants Pauff orally offered to enter into a new lease with plaintiff for a five year term commencing October 1,1943, at a monthly rental of $225 per month; that said offer is still subsisting; that plaintiff, although willing to enter into such new lease with defendants Pauff, cannot safely do so without the determination of the court that his contract with defendants Corey is no longer valid and binding, inasmuch as defendants Corey, in the absence of such judicial determination, will attempt to pursue the remedies of forfeiture and reentry provided in their agreement, and it will become necessary for plaintiff to contest their right so to do in protracted litigation with the ultimate decision in doubt; that on October 14, 1943, defendants Pauff served upon plaintiff their three day notice, demanding that plaintiff surrender to them the immediate possession of said premises, and notifying plaintiff of their intention, in the event of his failure to do so, to institute legal proceedings for recovery of possession of the same.
The amended complaint further alleged that "all questions and controversies that have arisen between the parties to this action can be and should be settled, adjudged and adjudicated in this one action, and that it is essential to promote the ends of justice that this entire controversy should be determined in this one proceeding so that the rights and duties of all parties interested may be finally settled and adjudicated." The amended complaint also alleged lack of an adequate remedy at law. By reason of the facts alleged, the following relief was prayed: 1. Continuance of the restraining order pendente lite. 2. Continuance pen-dente lite, of the order for payment into court. 3. For an injunction, pendente lite, to restrain defendants C'orey and defendant bank from assigning or otherwise hypothecating the promissory note executed by plaintiff and Turner. 4. That after hearing upon the merits, the temporary injunction be made permanent, and that plaintiff be adjudged to be in lawful and peaceful possession of the premises either "under the terms and conditions of the instruments in writing hereinbefore referred to or under the proposed lease agreement" between plaintiff and defendants Pauff. That the court "determine the liability of said plaintiff to the respective defendants herein, and construe and determine the instruments set forth and described herein, and terminate the uncertainty and controversy giving rise to the proceedings herein," and determine all equities and liabilities as between plaintiff and defendants and as among the defendants themselves. 5. That in the event that total failure of consideration should be adjudged, that the agreement between plaintiff and defendants Corey should be canceled and annulled, and that in the event that partial failure of consideration should be adjudged, the extent thereof should be ascertained and set off against the remaining indebtedness of plaintiff to defendants Corey, if any. 6. For a money judgment against defendants Corey in the sum of $25,000. 7. For other and further relief and costs of suit against such defendant or defendants as may be proper.
The record on appeal discloses sundry additional motions and proceedings attacking the amended complaint and having to do with the temporary restraining order above referred to. At one state of the proceedings the defendants Corey served and filed a "Notice of Motion to abate or dismiss" the action upon the ground that the dispute controversy or question asserted in the amended complaint had become moot, for the reason that after the filing of said amended complaint the said defendants Corey had, as plaintiffs, commenced an action against Kress and Turner growing-out of the matters embraced in the amended complaint, and that such action was still pending; that the matters alleged in the amended complaint herein were in any event of a defensive nature, and could be asserted in defense of the said subsequent action. This motion was thereafter denied by the court, but solely upon the ground that the same had not been noticed in compliance with the requirements of rule X of the Rules of the District Court, and without prejudice. The record discloses that the respective demurrers to the amended complaint were orally argued at length and supported by written briefs. The record does not disclose any formal opinion or decision by the learned district judge in support of the orders complained of other than the clerk's minutes from which it appears that the court ordered that the demurrer of the defendants Corey to the amended complaint be sustained without leave to amend "upon the ground that the amended complaint does not state facts sufficient to constitute a cause of action against the defendants or either of them and upon the further grounds that there is a defect or mis-joinder of parties in that it appears that the First National Bank of Nevada, a corporation, has no community of interest whatever in said litigation, and that joinder of the defendant Arthur C. Pauff and Harry C. Pauff, if there is a cause of action against either of them, it is upon entirely different grounds, and that there is a misjoinder by joining said Arthur C. Pauff and Harry C. Pauff In all other particulars the demurrer was overruled. The court further ordered that the demurrer of defendants Pauff "upon the grounds that the amended complaint does not state facts sufficient to constitute a cause of action against them or either of them, is sustained without leave to amend." The same minutes indicate the court's order made at the same time that all moneys theretofore deposited with the clerk under the former order be released and returned to the plaintiff, and that the injunction theretofore issued be dissolved. The same minutes also show the following: "Further Ordered that this action be, and the same is hereby dismissed and the defendants may have their costs of suit incurred." Notice of these orders was given by quoting the same in full.
The notice of appeal recites that the appeal is taken from such order "and the whole thereof, and each and every part thereof" and thereupon again recites in full the order complained of.
As there is no - appeal from an order sustaining a demurrer, the purported appeal from the order sustaining the demurrers is hereby dismissed. N.C.L., 1931-1941 Supp., sec. 9385.60.
Counsel's opening brief (apparently in complaince with the requirement of sec. 9385.60, N.C.L., to the effect that appellant shall in his opening brief state his points and such errors as he shall rely on) recites: "This appeal is taken from the order of the court of August 11, 1944, sustaining defendants' demurrers to plaintiff's amended complaint without leave to amend and dismissing plaintiff's action." This leaves for the consideration of this court the appeal from the judgment of dismissal, with consideration, of course, of the error assigned in the sustaining of the demurrers without leave to amend. The appeal from that part of the order that dissolves the temporary injunction and releases to the plaintiff the funds deposited with the clerk under the prior order of the district court, will, accordingly, not require attention except insofar as it is affected by the order of this court heretofore made denying the application of the appellant for an order for a writ of supersedeas.
The statement contained in appellant's opening brief to all intents and purposes limits the appeal to the judgment of dismissal. However, the court made its order denying plaintiff's application for a writ of supersedeas, upon the stipulation of counsel that an order might be made and the court's opinion filed later. Such opinion, prepared by Honorable Harry M. Watson, district judge, commissioned by the Governor to sit with the court in this case by reason of the disqualification of Honorable Charles Lee Horsey, associate justice, is hereby adopted by the court in support of the order denying the application for supersedeas.
Opinion on Motion for Supersedeas
"As to the Notice of Motion to Dismiss the motion for a writ of supersedeas and the Demurrer to such motion, it not having been pointed out wherein appellant's Notice of Motion is in violation of any Supreme Court Rule, or is contrary to precedent, and a motion to strike a motion being unusual procedure to say the least, they are given consideration as is the Response, only as they bear upon whether the appellant's motion should or should not be granted.
"It is contended by appellant that the perfecting of the appeal and providing the $800.00 appeal undertaking stays all proceedings in the case, and that the preliminary injunction issued and later dissolved by the trial court therefore remains in full force and effect, thereby enjoining the action of Arthur C. and Harry C. Pauff against appellant and respondents. In support of this he relies largely on Gottwals v. Bencher, 60 Nev. 85, 92 P.2d 1000, decided in 1939. It would naturally follow, it seems, that appellant would have the same contention apply to the other cases pending or threatened, which he asks to be stayed.
"The action appealed from was for a declaratory judgment, determining the legality and effect of, variously ; a lease, or leases, agreement of sale, or proposed lease agreement, and various conduct of various parties, the rights and obligations of the various parties plaintiff and defendant and each of them, and praying consequential or corrective relief.
"By order of the trial court appellant and plaintiff paid to the clerk of the court installments and ground rents as of the due dates alleged in the complaint for declaratory relief. The court order provided these payments should be in lieu of payments to be made the Coreys by agreement of April 5, 1943. The Coreys were likewise restrained from endorsing or assigning the note in question.
"Defendants were enjoined by temporary injunction from doing any act to disturb the peaceful possession of plaintiff appellant and the conduct of his business at the cafe. This was dissolved when the demurrers were sustained without leave to amend.
"The question here to be determined is whether appellant is entitled to writ of supersedeas as prayed. 'Except where the court is bound to allow a supersedeas or stay as a matter of right (as where supersedeas or stay is the subject of express statutory provisions (3 C. J., Appeal and Error, sec. 1397, page 1274), an order for a supersedeas or stay will only be granted on good cause shown and where a proper case for exercise of the court's discretion is made out.' 3 C. J., sec. 1411, page 1290. Idem: 'As a rule a supersedeas or stay should be granted, if the court has the power to grant it, whenever it appears that without it the object of the appeal or writ of error may be defeated, or that it is reasonably necessary to protect appellant or plaintiff in error from irreparable or serious injury in the case of reversal, and it does not appear that appellee or defendant in error will sustain irreparable or disproportionate injury, in case of affirmance on the other hand, as a rule, a supersedeas or stay will not be granted unless it appears to be necessary to prevent irreparable injury or a miscarriage of justice.' [See, also, 4 C.J.S., Appeal and Error, sec. 636.]
"The contention of appellant that the preventive temporary injunction dismissed by the trial court had the breath of life breathed into its dead lungs, by the mere formality of providing necessary undertaking for, and perfecting an appeal, does not find support by the authorities reviewed. In Hicks v. Michael et al., 15 Cal. 107, in an appeal from an order refusing an injunction, the simple question is presented, whether an appeal from an order of this character can operate to create an injunction, or prolong a restraining order, until the ruling of the judge can be reviewed by the appellate court. 'It is clear that no such effect can be given to an appeal, even when the most ample bond of indemnity is tendered. Where an injunction has been refused, there is nothing operative. A stay can only be sought of that which has an existence, and by its operation is supposed to work injury to appellant. It is therefore, from the nature of the case, only of orders or judgments which command or permit some acts to be done, that a stay of proceedings can be had. (Merced Mining Co. v. Fremont, 7 Cal. 130, 132.) Nor can an appeal operate to create an injunction under any circumstances. We think the restraining order expired by its own limitation; but for the purposes of the argument, we will regard the order as a temporary injunction a,nd the appeal as being made from an order dissolving the same. The plaintiff is in no better condition upon this hypothesis. An appeal does not revive an injunction once dissolved, if the injunction could be revived by the mere act of the party in filing an appeal, it would be giving to him, not only a power of control over the orders of the court, but of creating an injunction, (citing Wood v. Dwight, 7 Johns. Ch. N.Y., 295) Supposing (an appeal) can be sustained, it is impossible that a process that is duly discharged, and functus officio, can be revived by the mere act of the party. How could this court undertake to enforce the process and punish contempts of it, in the very face of the order dissolving it? (citing Hoyt v. Gelston, 13 Johns, N.Y., 139) When a process is once discharged and dead it is gone forever; and it can never be revived, but by a new exertion of judicial power.'
"An order dissolving an injunction is self-executing, and is not superseded by filing an appeal bond. 32 C.J., Injunctions, sec. 735, n. 18; 43 C.J.S., Injunctions, sec. 255; Manning v. Poling, 114 Iowa 20, 83 N.W. 985.
"A judgment not requiring or permitting, the doing of any act will not be superseded, there being nothing on which the writ can operate in the relief or aid of appellate jurisdiction. Lickley v. Board of Education' of Los Angeles County, 62 Cal.App. 527, 217 P. 133; Southern Pacific Co. v. Smith, 171 Cal. 8, 151 P. 426; Tyler v. Presley, 72 Cal. 290, 13 P. 856; Erickson v. Municipal Court, 131 Cal.App. 327, 21 P.2d 480. When the judgment is rendered, and no process is required to be issued for its enforcement, no supersedeas is allowed. In fact, there is no necessity for such writ. There is nothing to stay or supersede.
"To the same effect is, In the Matter of M. O. Graves, 62 Cal.App. 168, 216 P. 386, 387, The general rule, therefore, is that supersedeas will not issue where the judgment does not command or permit any act to be'done, or where it is not of a nature to be actively and affirmatively enforced by execution or otherwise.'
"Nor do we feel that Gottwals v. Rencher, supra, would sustain appellant's contention. The receiver appointed in the court below made sale as ordered by the court, and filed his return and account of sale and petitioned for order confirming and approving said sale. Appellant there moved the court below for an order staying the hearing of return, account and petition, vacating the order setting said hearing, vacating said sale and for writ of supersedeas, which motion was denied. The appeal had been perfected before the sale, and notice thereof given respondents and the receiver through their attorneys, with a demand that they desist from further acts and proceedings with reference to said sale. Upon this state of facts the Supreme Court ordered a stay of proceedings for confirmation of sale, and vacated the order for such hearing, pending the appeal. In that case the order below required the doing of some act, i. e., that the receiver have the sale confirmed, as required by law. There was something on which the writ could operate and stay, something to be actively and affirmatively enforced, unless stayed. We point out that the court did not vacate the sale, as prayed, even though made after appeal had been perfected, there being nothing with reference to the actual sale then pending-, on which the writ could operate. A writ of supersedeas will not function as a writ of cer-tiorari or writ of mandamus. The remedy of super-sedeas is usually regarded as injunctive or prohibitive in character and not corrective. Craig v. Stansbury, 37 Cal.App. 668, 174 P. 404.
"It follows therefore that supersedeas could not function to effect a revival or reinstatement of a temporary, prohibitive injunction, once dissolved.
"The contention that the injunction enjoined the bringing of any action against appellant concerning matters involved in the case appealed is likewise, we think, untenable. An injunction should be so clear and certain that a party may readily know what he is restrained from doing and that he must obey it at his peril. 32 C.J., Injunction, sec. 620, p. 369, 43 C.J.S., Injunction, sec. 206; Summers v. Farish, 10 Cal. 347. The restraining order here makes no reference to litigation, multitudinous, vexatious or otherwise. If the temporary injunction could be restored, it would therefore have no such effect as contended for by appellant.
"We think that Dodge Brothers, Inc. v. General Petroleum Corporation of Nevada, 54 Nev. 245, 10 P.2d 341, 13 P.2d 218; Lovelock Mercantile Co. v. Lovelock Irr. Dist., 51 Nev. 179, 272 P. 1; State v. Ducker, 35 Nev. 214, 127 P. 990; and Silver Peak Mines Co. v. Second Judicial District Court, 33 Nev. 97, 110 P. 503, Ann.Cas.1913D, 587, clearly distinguished between preventive and mandatory injunctions, determining that on an appeal from the temporary 'mandatory' injunction the appellant is entitled as a matter of right to a stay of proceedings under the injunction upon the filing of a proper stay bond. See also Gottwals v. Bencher, supra, deciding that stay bond be required only when necessary to protect appellee against damages he might sustain by reason of an unsuccessful appeal."
The application for an order for a writ of supersedeas was accordingly denied.
We emphasize the opening paragraph of the foregoing opinion of Honorable Harry M. Watson with reference to the motion of the respondents to dismiss the notice of motion of appellant for a writ of super-sedeas. This court has, on several occasions, condemned the practice of submitting a motion to dismiss a motion. With as much propriety, or perchance with greater propriety, could the original movent notice a motion to dismiss the motion to dismiss the motion. The very statement indicates the confusion that is bound to ensue. If there is a good reason why a motion should not be entertained by the court, such reason may be advanced as a ground in support of the denial of the motion. The confusion is not confined to the mere records of this court, but to the orderly presentation of oral argument to the court. If a litigant has a right to move to dismiss a motion, he would presumably have a right to open and close the argument on his motion to dismiss the motion, and such argument, followed in turn by the arguments on the motion proper, would seriously affect the orderly and dignified presentation of matters to this court.
Uniform Declaratory Judgments Act, Stats.1929, Oliap. 22, p. 28. The applicable portions are as follows:
"SnoTrow 1. Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be. claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a iinal judgment or decree.
"Sec. 2. Any person interested under a deed, will, written contract or other writings constituting a contraed, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.
"Sec. 3. A contract may be construed either before or after there has been a breach thereof."
"Sec. 5. The enumeration in sections 2, 3 and 4 does not limit or restrict the exercise of the general powers conferred in section 1 in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
. "Sec. 6. f lie court, may refuse to render or enter a declaratory judgment or decree wliore such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise'to the proceeding.
"Seo. 7. All orders, judgments and decrees under this act may tie reviewed as other orders, judgments and decrees.
"Seo. 8. Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The apiili-cation therefor shall be by petition to a court having jurisdiction to grant relief. If the application bo deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further 'relief should not be granted forthwith.
"Seo. 9. When a proceeding under this act involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is xiending.
"Seo. 10. In any proceeding under this act the court may make such award of costs as may seem equitable and just.
"Sec. 11. "When declaratory relief is sought, all persons shall be made parties who have, or claim any interest which would be affected by the declaration, and no declaration shall prejudice the right of persons not parties to the proceeding.
"Sec. 12. This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered."