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Pratt v. Rice.

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peared, and in favor of respondent. Upon the order of sale issued in the case, no return was made.

On the sixth of April, 1871, ex parte application was made upon affidavit and certain entries upon the clerk's docket, for the docketing of a judgment nunc pro tunc against appellants. Upon this motion it became necessary for the court to hear and decide several questions of fact. The order prayed was granted.

Upon the twelfth of April, 1871, appellants moved, on notice, to vacate the order thus made, upon the grounds that it was made without notice, and without sufficient showing of facts. By the Practice Act of this state, “after appearance, a defendant or his attorney shall be entitled to notice of all subsequent proceedings, of which notice is required to be given.” Stats. 1869, Sec. 499. There is nothing further in the Practice Act touching the question of notice in motions of the nature of the one under consideration ; it is neither specially required nor excused, nor does there appear to be any rule of court upon the subject; consequently, reference must be had to generally received practice.

It is said by Mr. Daniell that “a motion is either of course, that is, for an order which, by some standing rule or known practice of the court, may be granted, without hearing both sides ; or, secondly, special — i. e., for an order which is not a mere matter of course, and can only be granted under special circumstances, or upon notice duly served upon the opposite party. A motion of course requires no notice. A special motion is one which it is not a matter of course to grant, but which the court, in the exercise of its discretion, may, on the facts established in support of the application, either grant or refuse. Motions of this description may be made either ex parte, or upon notice. When they are made ex parte, as in the case of motions for a ne exeat regno, an injunction to stay waste, etc., they must be supported by the affidavit of the party applying for them, and by such collateral affidavits as may be necessary to make out a sufficient case for the interference of the court.

“ The object of motions of this nature is generally to prevent the performance of some act which, if performed, might be productive of irreparable injury; and it is therefore desirable that the party

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State v. Ah Sam and Ah See.

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affected by it should not have any previous intimation of the intention to apply to the court to restrain him. Where there is no danger that the object of the motion would not be defeated, if notice were given, they will not be permitted and special applications concerning the proceedings in the cause, not regulated either by the general orders or by any clearly defined rule of practice, must almost always be made upon notice." Dan. Ch. 2 ed. 1854-5.

The reason of the rule is against the practice pursued in this case ; this was not an order of course. There was no cause for haste or concealment; facts were to be found, in the ascertainment whereof the appellants were deeply interested ; a record of the court which was to bind them was to be substituted after a lapse of years, mainly, if not entirely, from the memory of one party ; certainly, they had the right to know and see that this was correctly done, if it could be done at all. There is no reason in favor of the course pursued, and many against it; on its face, and unobjected to, it is, to say the least, extraordinary and irregular; and when objected to, it must be set aside.

The order of the district court is reversed.

THE STATE OF NEVADA, RESPONDENT, v. AH SAM AND

AH SEE, APPELLANTS.

INDICTMENT FOR BURGLARY CHARGING ALSO LARCENY. A indictment for burg

lary with intent to steal certain goods, which after stating the burglary goes on to allege the stealing of the goods, is not objectionable as charging two

separate and distinct offences. DEMURRER TO INDICTMENT—GROUNDS TO BE DISTINCTLY SPECIFIED. It seems that

a demurrer to an indictment" that it charges two separate and distinct offences" is objectionable, for the reason that it does not distinctly specify the grounds of objection as contemplated by the statute relating to criminal practice, Stats. 1861, 465, Sec. 287.

APPEAL from the District Court of the Second Judicial District, Douglas County.

The defendants, after the overruling of their demurrer, pleaded

State v. Ah Sam and Ah See.

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not guilty. Being convicted, they were sentenced to imprisonment in the state prison for four years. Their appeal was from the judgment.

George P. Harding, for Appellants.

The indictment charges with sufficient legal certainty two separate and distinct offences, which should not have been united in the same indictment under our laws. Stats. 1861, 465, Section 286, sub. 3. Under a criminal code similar to ours, it was held that an indictment in substance like this would be bad on demurrer. People v. Garnett, 29 Cal. 625 ; People v. Burgess, 35 Cal. 118.

L. A. Buckner, Attorney General, for Respondent.

By the Court, WHITMAN, J.:

Appellants were charged with the crime of burglary "committed as follows, to-wit: The said Ah Sam and Ah See did, at the residence of J. W. Averill, in the county of Douglas, state of Nevada, on the night of the seventeenth day of November, A. D. 1870, at eleven o'clock of the night time of said day, feloniously, burglariously, and forcibly break open and enter the said dwelling house of said J. W. Averill, with the intent the goods and chattels of him, said J. W. Averill, in said dwelling house then and there being, then and there feloniously and burglariously to take, steal and carry away ; and one clock of the value of eight dollars, and forty pounds of butter of the value of twenty dollars, and one lot of sugar of the value of fifteen dollars, and one lot of can fruit of the value of ten dollars, and one lot of candles of the value of five dollars, of the personal property of the said J. W. Averill, then and there the said Ah Sam and Ah See did feloniously steal, take and carry away The statute of this state defines burglary thus:

“Every person who shall in the night time forcibly break and enter, or without force (the doors or windows being open) enter into any dwelling house, or tent, or any other house or building whatever, with intent to commit murder, robbery, rape, mayhem, larceny or other felony, or petit larceny, shall be deemed guilty of burglary'

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State v. Ah Sam and Ab See.

Stats. 1869, 65. So this indictment would appear to be good, unless open to the objection taken by appellant's demurrer, which is “ that said indictment charges two separate and distinct offenses. The demurrer is in the exact language of the statute, but the same statute also provides that the “demurrer must distinctly specify the grounds of objection to the indictment, or it shall be disregarded.” Stats. 1861, 465, Section 287.

It would, to say the least, be better practice to call the attention of the court to the exact point of objection. To say that two offenses are charged, and there stop, is to put upon the court the duty, if the demurrer be regarded, of searching the indictment for the error, which is not its province. However that may be, it will be assumed for the purpose of this decision, as it was upon the argument of the case, that the demurrer objects that the indictment charges burglary and larceny. The district court overruled the demurrer, and that is charged as error.

To sustain this position reference is made to People v. Garnett, 29 Cal. 625, and People v. Burgess, 35 Cal. 118. It would be, perhaps, sufficient to say that the point did not arise in either of those cases; but yet, as their dicta are clearly with the appellants, they may be taken with the respect always due to the utterances of a learned tribunal. Yet the authorities, admitting the cases cited to be decisions in point, are all the other way. The cause of demurrer allowed by the statute is simply declaratory of the preexistent general rule of practice in cases of felony, and under that rule, indictments like the present upon like objections made have uniformly been held good. 1 Wheaton Am. Crim. Law, Sec. 383; 1 Russell, 824; Com. v. Tuck, 20 Pick, 356 ; State v. Ayer, 3 Foster, N. H. 301 ; Storps v. Com., 7 S. & R. 491 ; Com. v. Hope, 22 Pick. 1 ; State v. Brady, 14 Vt. 353; State v. Squires, 11 N. H. 37 ; State v. Moore, 12 N. H. 42.

Some of these cases discuss the subject very elaborately, and even if one should doubt, with Mr. Bishop, as to the absolute propriety of the result attained, still the matter must be regarded as settled law.

Therefore the district court committed no error, and its judgment is affirmed.

Schultz v. Winter.

CHARLES N. SCHULTZ et al., APPELLANTS, v. WILLIAM

H. WINTER et al., RESPONDENTS.

ORDER OF JUDGE NOT FILED WITHIN HIS TERM OF OFFICE. Where a district

judge on the last day of his term of office made an order overruling a demurrer, which, however, was not filed until a week afterwards : Held, no valid order, and that the action of his successor in setting it aside and hearing the issue

anew was proper. ORDERS MADE IN VACATION NOT VALID TILL ENTERED. An order of a judge

upon an issue of law, if it be a final judgment, may be entered in term or vacation ; but such an order in vacation can have no vitality until it be at least

delivered to the clerk for filing. MultiFARIOUSNESS OF COMPLAINT. Where a complaint set forth that plaintiffs

had appropriated separate and distinct portions of the waters of a creek flowing through their respective lands, and that afterwards defendants had absorbed nearly the entire waters, to the damage of plaintiffs in a certain amount, and threatened to continue such absorption, and praying for damages, an injunction and a settlement of the various rights of plaintiffs by a general decree : Held, demurrable for multifariousness.

APPEAL from the District Court of the Second Judicial District, Douglas County.

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This was an action brought by Charles N. Schultz, H. F. Dangberg, Henry Ross, Emanuel Penrod, A. W. Burrill and H. H. Bence as administrator of the estate of Wm. Wilford, deceased, against William H. Winter and John Noal, alleging a diversion of the waters of a small stream of water known as Clear Creek, and forming the boundary line between Douglas and Ormsby Counties, and praying relief as stated in the opinion. The official term of Hon S. H. Wright, as judge of the Second Judicial District, by whom the first order was made, expired with the year 1870 ; that of Hon. C. N. Harris, his successor, commenced with the year 1871.

Clayton f Davies, for Appellants.

I. In the trial of issues of law, the court is not limited as to the time of rendering decisions. Practice Act, Sec. 156. There was no more right to vacate the order overruling the demurrer than

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