The daily appeal. [volume], December 08, 1906, 6 O'CLOCK EDITION, Image 2

About The daily appeal. [volume] (Carson City, Nev.) 1906-1907

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THE DAILY TPPEAl , CARSON CITY NEVADA, DEC
THE DAILY APPEAL
Published every eveui u? li ia-icy ,-xeeiUetl.
jwas free from all incumbrances; but til he has exhausted all remedy
! only that it was free from some incum- against the grantor of the title in-
, . .... ,1 volved or shown that such grantor -"s
Ibrances. Their contention is express el . t. .
1 insolvent. And further that this
' r- 1 ' .-- i.-. Vi
;as ioiicwb. iuw h j of xhaustion of
plaintiff in their said brief on the
I?
demurrer, compare the Morange vs
showing of exhaustion of remedy
against grantor or h:s insolvency is
an affirmative showing on the part of
1.
c'.
C. LCWIS
r ice
Lessee and Publisher j mis. In case 44 N. Y. 315, with this plaintiff and that without such
r.ocr on1 nlniTYi thnt- this rflSP is milch
THE APPEAL aLDG, CO RN'ER OF MAIN AND 2d STREETS j the N. y and we
TELEPHONE Main 315 I
year by mail 9& 00 j
S x montU by mail 4 00 t
Throe months by mail 2 00
Per week by carrier 25
(Ente ed at the Carson Post. Officr as second class matter) I
UNiONb-a
"LAlEr
call the courts attention to line 4 on
m c t : ttiic ion-
page 2 Ol lllfii unri "ut'c jjat sufh
guage is iouna. wnne in our cuo
the complaint alleges that it was to b -t
free from any incuTr.brance. Web
jster defines the void 'r-ny' as one out
of many, indefinite. ' 'Nor Knowelh
j any' man tiie Father, save The son.
Matt. XI. 27.'
showing his complaint would be bad
on general demurrer. Is this the
law? We think it is not necessary
affirmative showing be
made in the com!a'.:i. and
is unnecessary r.ov to 1-
termine whether t.e ?nrr:e would-r-ntitute
a defense if pleaded
by answer. It is tirgpfl in the brief
. at Kanccck may have paid the
vCuntinued from first page.)
Mi'REME COURT DECISION.
; ppcal is taken.
To sustain the judgment respon
dents' counsel make, if we correctly
gather them fiom their brief, many
points of objection to the complaint.
1. That ti-.e plaintiffs "do not al
Irg.? that said purchase depended up
on the abstract that was to be after
wards furnished to them j'
'said defendants, or that said p.: base
in any way depended upon wv.ai taid complaint does not
abstract might disclose."
V';t"u;;i. M.ini; into an
possession or that they ever had pos
session of said land and premises,
tney dont show by what due course or
law the Bank of Nevada ousted and
dispossessed the plaintiffs of said
land and premises, they simply state
a coneluson of law and all the author
ities held that you must state facts,
ami from tiiose facts the conclusions
are drawn."
This allegation, too, v.e think good
under the general demurrer.
5. Fifth: Counsel claim that the
"show that the
damages of $1100.00 to plaintiff. It is
It is also defined as -some-, as in- 1ged in the complaint, however,
definite number or quantity, as are tbat Hancock j,as not so paid. lt -13
there any witnesses present. , , th t Hancock may be able
xr pay it on bing "sued. Defendants
obligation was a direct contract to
in its largest meaning f,.;t:1l iaiHff rn mmnlptp nnd
Now the word any Incumbrance
does not mean all incumbrances, as
the word 'any
We are AKvays Up-To-Date
simply means some, and does not crrr0ft attract of title to the land!
ebHTKT
analysis of the allegation
point, we deem i' sufficient Hi i,
the assault r.f a general demurre:
and wlvthor it was sufficient to rcp?l
a speeial demurrer oji thr
st:itt !! is not nvftnv i for iv
ti'in.
Ceunsei's second p.unt
"Paid cer'plalr.t do nor it lb
plaintiffs on discovering the defect
in the abstract, took proper measures
o:i th:.- to avert the loss- and if they fail to
n " .!o so cannot hold the abstracters lia
ble."
This claim we think untenable.
ground plaintiffs were not required to show
snid r"bs;:-:".M v.ts to b irad
th" ti'iie of !! issuing of tii"
by. the I. P
d:ite. tir e, or conveyance."
We think this allegation is suffi
cient. It required defendants to furn
isii it "full and complete'' abstract.
'','" i an see no reason why resuonden! s
should rrltitrprilv take any particular
bte ;iv.d s-av that prior to that date ;oVj no cauc
they we:-e v" required to make defendants unt
seai(h and r;-ort of the title.
As r third point Counsel sav
"in sec: ion five of jrp.ire three of said
amended complant. the plaintiffs al
lege thnt a: the time of the purchase
of snid described land, that the Hank
c f Nevada wr.s the owner in fee
thereof and thi't "the same appearel
(f record ntt the public records of
Washce County, but they allege
nothing to show that said mortgage
was not due ar.d paid prior to the
furnishing of the abstract by defend-
lhis. a" the facts were otherwise M.
was a n;::iter of affirmative defense
to be set up by defendants.
;. Tin' sixth, noiat states tbp.t th -e
from -k-os- "Xihing to chow that there ever
pate-n Was a tlennnd made of said Hancock
that
that
mean from all incumbrances."
The language in the allegation, (a1
Ication IV) ;s
"Tfiat ccfAndant3 in the p.vf: : -3
nee of t' ' ':s t" such employ
ment, did thcita.r i.. i on or about
the 25 dy of June, 1902. furnish to
pTa in: iff .5 a pr.Men:'.-.--d ubstract -f
title t,i xIk- --:rie litid and did report
an.i repiesent 'o plaintiffs that the;
! same was a fu.l ;rie. accurate and j
correct abstract of the title to said
land: by which pretended abstract f j
Title it appeared and was shown tbnr i
the said W. H. Hancock was the
owners of said land ar.d premises m ;
fee simfiTe without any incumbr- j
a?;res: in reliance on said pret "tided ;
abstract of title, and depend ins sopdy i
thcreoii. pluintif-'s wctv induced t
. iii' anout t ie mu nay oi
in question, such as would protect the ,
plaintiffs from incurring the loss tint1
they have alleged. If plaintiffs had
it 5r their newer to protect them
selves from such loss by any course j
of action that they could be reason
ably and legally required to take, that
is an affirmative defense that re
spondents should set up and plead to
defeat plaintiffs' action.
! The case of Morange v. Mix, Ai N.
j Y. :!".. throws considerable light on
I this question.
I We thi:ik the judgment appealed
from in thK case is erroneous. Said
udgment is reversed and the case
emanded r the trifl court for furth-
Watch our new line In foot
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E BL RUNGTON, CarsonCity, Nevada
The Carson Exchange
CARON CITY'S LEADINC HOTEL "
The
best iu-.p for the money
lliti
June It"'
ni omises
P
nor from any oai-ticn'tar fnr tv;f, return ef said Sllno.on or any
part of the same, and with.our a de
mand on said Hancock tv the retiun
of said $1100.00 the plaintiff cacnot
say thi'.t said I fun cock would refuse
to return ii;o same if a demand wa;.
made, in other wrds the plain' iff s
of action aga nst the
all lawful means for
the recovery ef said $1loo.oo. from
said Hancock have failed. It must "no
shown first that said Hancock is in
solvent, and. nothing whatever can be
collected from hTm, before the d"fe:id
anf have become liable 'n damages
to said plaintiff."
We think there was. I: said Han
cock has refused and still
docs refuse to pay plaintiffs
the sum of 110o.oo or any
P'rt thereof."
Refusal to do a thing implies a de-
mi
ni u
.iid land and
.cook and del
s-iv i f Sll"o.
"ni e i S.ates."'
"Hancock
d
a.
pre:
net:'
ants, and plaintiffs simply assume niap ma,ie TO do it. Certainly this
i.iat said title was in the Bank -if w0uld be so on general demurrer.
Nevada.' 7. The seventh point is that there
On the contrary the allegation is an ;3 no allegation that the plaintiffs
assertion not an assumption that the have suffered loss of $1100.00 or any
"Hank of Nevada was the owner 'njsum: 1)in ony the statement of a
fee", etc. conclusion of law that plaintiffs lnr-e
4. Under the fourth point counsel s, suffered.
na so
; u-. ;:. i i:
i i.e i ' , ; s 1
e : .:: ef ...ie'
fS; s in tee -;oi;e :.
oi -nces.""
The phrr.te "'witleau any incum
brance';", rueans je-t what it says,
it means that titers were no incum
brances. Indeed, it means there was
not a single incumbrance. It could
rot possibly mean there " ,i some
itscumbrances. or even there was a
single incumbrance. So to hold
Tv tt'd be a strange perversion of lan
gtiage. A few other jioinrs are made in the
brief of respondents: but we think
they are not of such moment as ,r.i
require mention here, except the fo1
lowinc :
0. Ninth point, (f we correctly ap
prehend it is this:
That in case of negligence in the
abstracters work and consequent los
therefrom the damaged employer can
not sue the negligent abstracter nn-
cr proceedings in accordance
: hi . opinit n,
KITZGEF t ? C.
We cenc lr:
TAbi'Oi .'.
XOlU'P.v'SS J
with
stage .eaves
other points
t:u: ujo
J.
t
r
k
Nicely Furnished Rooms
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YOU?. CHECKS A NO
i0 RECEIPTS TO
if GRAY WHEN YOJ GtT CF-
HE DCE. TH C REST
GENESAL HAULlNo.
CLOCK V.'COQ FOR SALE.
C. E. BRAY, Carson City, Nev.
i!
S, is r t" m jrrs p- n t k
ANDY TGBD, Prv-p.
rne best of iiiuia rofrea'ninents ?Jways on tap, lr eluding lmporxeO
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G'd C'gars are s part o our gtoc'i.
ANHEUSKR BUSCtI BKKR OX TAP
WANTED
1 A U H X T S Canvassers,
diors, solicitors, mail order people.
: people, etc., should by KRAMER'S
iJOOK OF Tit A D1C SECRETS Regular
I price $5.oo, ,m bal. of last edition for
j $1.2f as long as they last, uuaran
! teed. Oriier quick. Sioux Pn.1. Co.,
Sutherland, Iowa. n221mo
Hcii.juartcrt or Tmrlsta
and Commcrcia Travctcr
Sample Rood
say "pla'ntiffa allege, that they were
ousted and dispossessed of said land
and premises by due course of law,
On the contrary we think an in
spection of the allegation in this le
spect shovsallegation of an n'timate
i
1 :3 ir
11
Spec
ials
FIRST CLASS IN EVERY RESPECT.
ARLINGTON HOUSE.
STOUT & McMILLAN, Props
Only Modem Hotel in Carson
ONE tiLOCK FROM RAILWAY DEPOT .
by the Rank of Nevada, but they jf?Pt SOO(1 as against general demur
fail to show when or how they were i vov Pact
ousted and disnossessed of said land
and premises by said Bank of Nevad i, 1
they don't show when they went in;o
S. Counsel say thorp was no report
in the abstract of title furnished by
respondeat ? that the land in question
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Scott Building : : : : : : Telephone 614.
3
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Davey & Maish
COWFECTIOWERS
Fresh Fruits of every season
Ice cream soda and iced brinks
Free delivery to all parts of the city. Country
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Emporium B .ck Carson City, Nf
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CASTS!, :
Stationery, Kodaks and Photographic $uppie$,
Store op. Postoffice . - - Phone He. Zl
am mmm'M'.Ms m, : :. m mrmm mm w,m.m-m
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Successors to Geo. H Meyers
Wholesale and Reail Dealer in
Choice s Familv - Groceries
The Stone
O. T.
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I9 WKP.
mm
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Phone 504
The Bank
Eaioonl
MEYER & SANGER, Proprietors
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