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In the Matter of the Estate of Henry Sticknoth.

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stitution of the state of Nevada thus distributes the governmenta] · powers: “ The powers of the government of the state of Nevada shall be divided into three separate departments — the legislative, the executive, and the judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in cases herein expressly directed or permitted.” Const. Art. III.

Now in the first section of the act referred to, the legislative branch of the government says to the judicial, that it shall consider a certain paper “as if the signature of the testator was attested as required by law.” The law referred to is as follows: “No will, except such nuncupative wills as are mentioned in this act, shall be valid unless it be in writing, and signed by the testator, and sealed with his seat, or by some person in his presence, and by his express direction, and attested by at least two competent witnesses, subscribing their names to the will in the presence of the testator." Stats. 1862, 58, Sec. 3.

What this will was cannot be said, as it does not appear in the transcript. The vice of the statute, however, is in this, that it directs a specific course of judicial action in the matter of a special paper, in favor of an individual, contrary to the general course of the law. It is urged that the second section of the statute reme

. dies this. Does it? It graciously allows the court to decide upon the issue of fact, after taking away the ordinary statutory means of arriving at such decision. Here is a clear encroachment of the legislative upon the judicial function ; which, under all forms of civilized government, has always been contemned and resisted.

It is claimed, however, that in this particular case no one has the right to object. That the statute is remedial and does not trench upon vested rights ; for that no party could be interested in the estate save the heirs of Sticknoth, if any, or in their absence, the state ; that the rights of the former are saved by section third of the statute, and that the act is a waiver of the rights of the state.

In the view taken of the statute this argument, however sound in itself, (which point will be hereafter considered) is beside the question. The judge upon the bench, if such view be correct, could properly

In the Matter of the Estate of Henry Sticknoth.

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have refused to obey the statute, and his action would have been sustained. The public administrator is charged with the care of all estates of intestates dying in this county, and in his official capacity represents all the world as against the party seeking to take the estate from his charge.

As the act was an infringement upon the judicial power in that it prescribed a distinct decision contrary to the general course of law in a special case, it was consequently unconstitutional and void, and thus afforded no basis for the order made. The objection could be made by the court, or any one properly before it in the case. The public administrator was so present in the line of his official duty, and has made such objection, which must be sustained.

Again, while substantially admitting that the act must fail if it interfere with vested rights, which is undoubtedly the law, respondent contends that there is no such interference; claiming first, that the rights of heirs, if any, are protected by section three of the act; and second, that the right of the state, the only other possible party in interest, might be waived, and has by the statute been so waived. The first position is sound; a fair construction of the section referred to does fully protect them. A similar construction of the entire statute leads to the conclusion that the legislature intended to, and did, so far as it had power, waive all rights of the state ; but the correctness of this second point depends upon the solution of the question whether any such power exists in the legislature.

Upon the death of Sticknoth intestate his estate presently vested in some one, either in heirs, or, failing any heir, in the state of Nevada. As has been said, the rights of the former are protected, and it may be admitted if the right of the state was general the legislature might rightfully waive it, as has been attempted in this instance.

But it is not so. It is provided by the constitution enumerating several sources of revenue for school purposes, that

“ all estates that may escheat to the state”

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“and all proceeds derived from any or all of said sources shall be, and the same are hereby, solemnly pledged for educational purposes, and shall not be transferred to any other fund for other uses.” The word escheat used as quoted must be deemed to be coëxtensive with its statutory definition, which includes

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McCausland v. Lamb.

personal as well as real estate, thus : “If any person shall die, or any person who may have died within the limits of what is now the territory of Nevada, seized of any real or personal estate, and leaving no heirs, representatives or devisees capable of inheriting or holding the same, and in all cases when there is no owner of such real estate capable of holding the same, such estate shall escheat to and be vested in this territory." Stats. 1861, 240, Sec. 325.

From this it will be seen that the legislature has no power over this fund, its sources or proceeds, save to use it and them as provided. It cannot even be borrowed for state purposes by diversion to other funds, much less be diminished by appropriation or surrender to a private individual. At Sticknoth’s death, failing heirs, the right to his estate became immediately vested in the school fund and its beneficiaries, and the legislature could in no wise alter such disposition. So the act does interfere with a vested right, and upon this ground also must fail.

I think the order and judgment appealed from should be reversed, and therefore dissent from the opinion of the court.

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JOHN MCCAUSLAND, RESPONDENT, v. JAMES M. LAMB

et als., APPELLANTS.

APPEAL-TRANSCRIPT WITHOUT STATEMENT. Where a transcript on appeal

contained neither a statement on motion for new trial nor on appeal: Held,

that there was nothing in it for review except the judgment roll. CLERICAL MISTAKE IN JUDGMENT-ERRORS NOT NOTICED BELOW.

Where on appeal from a judgment it appeared that there was a clerical mistake in the rate of interest, but such mistake had not been brought to the attention of the court below : Held, that the Supreme Court would not notice it.

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

This was an action for judgment on a promissory note for $3,000 and interest at the rate of two per cent. per month, and to foreclose a mortgage therefor given by James M. Lamb to J. S. Lamb

McCausland y. Lamb.

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in December, 1869, on certain lots in the town of Verdi, Washoe County, and a one-fourth interest in the “ Verdi planing mill and factory.” Plaintiff was the assignee of such note and mortgage. Henry Menke, John King, William J. Bell, Alonzo Smith, Robert Blair and James Mayberry were also made defendants, as having or claiming to have an interest in the mortgaged premises. Menke filed a separate answer, as did also Blair; and afterwards King, Bell and Smith answered. To the answers of Blair, King, Bell and Smith, plaintiffs interposed a demurrer; and Menke was allowed to join in such demurrer, which subsequently was sustained so far as plaintiff and Menke were concerned; but overruled as to the others. There was a judgment of foreclosure: first, in favor of plaintiff, next of H. Menke, the holder of another mortgage, and third of Bell, Blair, Smith, and King, the holders of still another mortgage. The latter four claimed that the property mortgaged was partnership property of Crow, Lamb & Co., and their mortgage a partnership mortgage, while the others were individual mortgages ; and it is they who took this appeal.

In the judgment, by a clerical mistake the rate of interest to be paid the plaintiff was stated to be three per cent. per month instead of two

per

cent. The transcript contained no statement of any kind, or bill of exceptions.

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Thomas E. Hayden, for Appellants.

1. Plaintiff and defendant Menke demurred to the answer of defendants King, Blair, Smith, and Bell. The court supported such demurrer, and thereby precluded those defendants from showing that plaintiff's debt was the individual debt of Lamb, and only subject to payment after the satisfaction of the copartnership mortgage. Defendants King and others not having the right to appeal from the order sustaining such demurrer, appeal from the final judgment, and desire the review of the order sustaining such demurrer in favor of plaintiff and Menke. That order was not an appealable order. No statement could ordinarily be filed in such a case; because a statement is to be filed within twenty days after

McCausland v. Lamb.

the entry of judgment or order; and such statement cannot be made before the entry of judgment.

II. The error in requiring plaintiffs' judgment to bear interest at three per cent. per month is patent and must be corrected.

III. The only object of a statement or a bill of exceptions is to make that record which, without it, would not be record; but in this case the demurrer as one of the pleadings properly forms a part of the judgment roll, and properly goes before the appellate court. Huse v. More, 20 Cal. 115; Williams v. Glasgow, 1 Nev. 536; State v. Earl, 1 Nev. 396; Howard v. Richards, 2 Nev. 131 ; Foulks v. Pegg, 6 Nev. 137.

W. E. F. Deal, for Respondent.

I. The appeal is only from the final judgment. No statement on appeal was filed. The only question then is, whether the decree is supported by the pleadings.

If appellants desire to have any intermediate orders affecting the judgment appealed from, and not forming a part of the judgment roll reviewed, they must by means of a statement on appeal bring them into the record, together with such facts forming the basis of the order as are necessary to explain the action of the court below.

II. It is true, there is a clerical mistake in the judgment; but that could have been corrected in the court below. The decree should be corrected in this respect; but at the cost of appellants.

H. B. Cossitt, for Respondent Menke.

By the Court, WHITMAN, J.:

This is an appeal from a judgment decree and intermediate orders. The main complaint of error is in the action of the district court in sustaining the demurrer to the answer of defendants. With regard to the consideration of that and others specified, respondent insists that there is nothing in the transcript for review except the judgment roll, there being no statement either on motion for new trial or on appeal. Such is the fact; and it is also true

; that no error appears upon such roll, except what is evidently a

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