on the right of the heir to contest, and is a com- 6. WILLS 355-PROBATE-STATUTES-COM defendant were real estate dealers, and, con- | contest after one year, imposes a limitation uptending that from this state of facts, if proven, the plaintiff should recover no more than one-half the sum prayed for, in any event. The court very properly rejected this testimony. This was not an issue within the pleadings, and, as was suggested by the court during the trial, the plaintiff was entitled to recover upon the specific contract or not at all. For such reason the court erred in rendering judgment for the sum of $300 only. The judgment should have been in conformity with the findings of the court, and for the sum of $660. As so modified, the judgment is affirmed, with directions to enter judgment for such amount as of the date of the former judgment. GABBERT, C. J., and GARRIGUES, J., concur. (60 Colo. 196) In re DUNPHY'S WILL. DUNPHY et al. v. ST. MARY'S HOSPITAL (Supreme Court of Colorado. Oct. 4, 1915. PLIANCE-NECESSITY. A statute cutting off the right of an heir receiving notice to contest the will after one year, does not apply, except upon at least a substantial compliance with its terms. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 811-819; Dec. Dig. 355.] 7. WILLS 221 PROBATE GIVE NOTICE-EFFECT. FAILURE TO Failure to publish notice to unknown heirs for setting aside a will. as required by law is no ground of contest or [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 539-541; Dec. Dig. 221.] 8. WILLS 270-PROBATE - NOTICE - COMPLIANCE WITH STATUTE. Where a return of a notice of probate of a will recites that it was published five times in the daily issues of a certain paper between June 11th and July 9th, no substantial compliance with the law requiring notice to be published for four successive weeks in some daily or weekly newspaper is shown, but the return must specifically recite the publication in the words of the statute. [Ed. Note. For other cases, see Wills, Dec. Dig. 270.] Error to Pueblo County Court; Frank G. Mirick, Judge. A motion to dismiss a pleading for want of In the matter of the probate of the will jurisdiction of the subject-matter admits the Petition by truth of all material allegations therein contain-of Patrick Dunphy, deceased. ed that are well pleaded, and must be treated as a demurrer. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 167, 168; Dec. Dig. ~ 73.] 2. WILLS 270-PROBATE-KNOWN HEIRSNOTICE. Known heirs who can be personally served within the state must be personally cited in a proceeding to probate a will. [Ed. Note.-For other cases, see Wills, Dec. Dig. 270.] 3. WILLS355-PROBATE-SUBSEQUENT ATTACK-EXPIRATION OF STATUTORY PERIOD FAILURE TO GIVE NOTICE-EFFECT. Defendants' testator made a will which was offered for probate by the defendants without giving the required notice to the plaintiffs. The will was established and the statutory period of one year for contest expired. Thereafter plaintiffs sought to have the orders probating the will set aside, on the ground that the notice was jurisdictional and the probate invalid ab initio. The defendants set up the bar of the statute after one year. Held, that the notice was jurisdictional, and in the absence of proof of proper service the will might be attacked at any time by the plaintiffs, so that it was error to dismiss their petition. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 811-819; Dec. Dig. 355.] 4. STATUTES 239-CONSTRUCTION-DEROGATION OF COMMON LAW. Johanna Dunphy and others, against St. Mary's Hospital and others. From a judgment dismissing the petition, plaintiffs appeal. Reversed and remanded. W. B. Vates, M. G. Saunders, and E. F. Chambers, all of Pueblo, for plaintiffs in erA. W. Arrington, all of Pueblo, for defendJohn H. Voorhees, F. R. McAliney, and ants in error. ror. GARRIGUES, J. This action was brought by the alleged heirs of Patrick Dunphy, deceased, to rescind an order admitting a purported will to probate, to have the will declared null and void, and for a finding that deceased died intestate leaving petitioners as his only heirs at law. Upon motion of respondents, in the nature of a demurrer, the petition was dismissed, and the only question presented here involves this action of the court. 1. Petitioners allege that they are nonresidents of Colorado and the only heirs at law ed this life June 4, 1909, at Pueblo, Colo., of Patrick Dunphy, deceased; that he departseized and possessed of real estate and personal property; that June 7, 1909, a paper A statute in derogation of the common law writing purporting to be the last will of must be strictly construed. decedent was presented to the court, and Au [Ed. Note.-For other cases, see Statutes,gust 23, 1909, admitted to probate, by which Cent. Dig. § 320; Dec. Dig. 239.] 5. WILLS 355-PROBATE-RIGHTS OF HEIRS -CONTEST. The statute providing for notice to heirs of probate of a will and cutting off their rights to the alleged heirs are cut off from inheriting any of decedent's property; that none of the petitioners was served with citation, and that there was no publication of notice of the For other cases see saine topic and KEY-NUMBER in all Key-Numbered Digests and Indexes In hearing according to law, requiring the heirs | daily or weekly newspaper published in the to appear at the time of probate, or appris-county. It then provides that upon the day ing them of the time and place of the hearing; fixed in the notice for the hearing, if it shall that the only publication of such notice was appear "that due publication of such notice by printing the same five times in the daily hath been made as required by law, the court issue of the Star-Journal, a newspaper pub- may proceed to hear the probate of such lished daily at Pueblo, the first publication will." The petition alleges that petitioners being June 11, 1909, and the last July 9, are the sole heirs at law of decedent; that 1909, and that they had no knowledge of the they are nonresidents of Colorado; were not publications when made; that the paper writ-personally served with citation, and that the ing admitted to probate is not the last will notice required by statute was not given. of Patrick Dunphy; that he died intestate The court ordered publication of notice. It and they are his only heirs at law. Two therefore must have found the case was one grounds of contest are then pleaded, the first coming within the provisions of the statute being that deceased was at the time mentally requiring such publication. The position of incompetent to make a will or dispose of his counsel presenting the motion and of the property, and was acting under the undue court below in sustaining it, was that the and improper influence of the beneficiaries; court had no jurisdiction to act upon the althe second going to the contents of the will, legations of the petition because it was filed and objecting upon the ground that the ben- more than a year from the date of probate; eficiaries are incompetent to take, hold, or that whether the statutory notice was given enjoy the property. The prayer asks that or not to unknown heirs, in no way affected the order admitting the will to probate be the court's jurisdiction over the allegations vacated; that the will be declared null and of the petition, and that plaintiffs, though void; that decedent be held to have died in- they were unknown heirs, were barred by the testate, and that his estate be distributed ac-lapse of one year from seeking any relief cording to the proofs of heirship. The action they might have obtained within that time, was commenced July 3, 1914, and the ben- regardless of the publication of notice. eficiaries therein named filed a motion to dis- such ruling the court was in error. At commiss the petition for lack of jurisdiction, mon law probate jurisdiction was originally because more than a year had elapsed since vested in the ecclesiastical courts, and the the will was admitted to probate, and that heir desirous of contesting the will was rethe year within which a contest could be in- mitted to a common-law action. Our act of stituted had expired. The motion was sus- 1861 gave the heir the right to contest by tained. filing a bill in chancery within two years after the date of probate. The only remedy of the heir under the act of 1903 seems to be to appear and object at the time of the hearing; or within one year thereafter to ask for a revocation of the order admitting the will to probate. This statute appears to abolish the common-law procedure, and to [2-7] 3. The first question presented is repeal the act of 1861, and, being in derogawhether the publication of notice to these un- tion' of the common law, should be strictly known heirs was jurisdictional, and whether construed. One purpose of the statute is to the court had power to act upon the allega- permit the heir, upon whom the law casts tions of the petition after the lapse of one the property at the death of the ancestor, to year from the date of probate, regardless of come into court and object to the probate of whether or not the statutory notice to un- a purported will, which disinherits or cuts known heirs was published. Heirs for the him off from participating in the ancestor's purpose of notice seem to be classified by estate, and if he fails to do so, to bar any the statute into: (a) Known heirs who can right of objecting which he might have had be personally served within the state; (b) within one year after probate. The statute known heirs of unknown residence or who is not confined to the probate of the will, have gone from or reside without the state but imposes a limitation upon the right of or cannot be found within the state; (c) the heir to contest, and is a complete bar unknown heirs. The first class must be per-after the expiration of one year. We do not sonally served with citation, and the statute think the Legislature intended to take away provides the judge shall cause a notice ad- the only right the statute gives the heir of dressed to the second and third classes, set- contesting the will, except upon at least a ting forth the presentation of the will, the name and place of residence of the person presenting it, name and place of residence of the testator, and a statement of the property devised or bequeathed as described in the will and requiring such heirs to be present at the day and place named in the notice, to be published for four successive weeks in some [1] 2. A motion to dismiss a pleading for want of jurisdiction of the subject-matter admits the truth of all the material allegations therein contained that are well pleaded, and should be treated as a demurrer, as was done in this case by court and counsel in the hearing below. substantial compliance with its terms. Of course, failure to publish notice to the unknown heirs as required by law is no ground of contest, or for setting aside a will. It is not so contended. Petitioners are seeking to set aside this will upon statutory grounds, and pleaded the failure to publish the notice required by law merely to show that the one year statute of limitations, barring their published five times in a daily issue of a right to plead such grounds of contest, had daily paper between the dates given, that it not run against them. In Brown on Juris- was published for four successive weeks, as diction, 51, it is said: the statute specifically requires. For ought we know, there may have been three publications the first week and two the last. "This mode of service is called constructive; not because the publication in the manner prescribed raises any reasonable presumption that the defendant is advised of the pendency of the action, for its authorization is not confined to cases where there is a possibility of its ever coming to the knowledge of the party liable to be affected thereby. The defendant may have removed beyond the reach of knowledge of the fact of publication so made, and be at such a distance that it would be impossible for him to reach the place of trial before the day fixed for the return of the process. This method of service depends for its validity more upon strictly conforming to the statute which authorizes it than upon any inherent probability of its giving notice of the pendency of the suit to the party affected; and the fact of knowledge on the part of the defendant cannot be shown to supply any defect in the publication or in the proceedings anterior to it." The statutory notice to the heirs by publication in this case was jurisdictional, it could not be given or withheld at the discretion of the court, and the action was not barred unless the publication was made substantially as required by law. [8] 4. The only notice given the heirs, according to the allegations of the complaint, which, for the purposes of the demurrer must be accepted as true, was the notice published five times in the daily issue of the StarJournal, a newspaper published daily at Pueblo, the first issue being June 11, 1909, and the last July 9, 1909. This was not a substantial compliance with the law, and was fatal to jurisdiction. A legal publication of notice was a prerequisite to the jurisdiction of the court in denying unknown heirs, more than a year after the probate of the will, the right to be heard. The statute (Rev. St. 1908, § 7083) requires such notice to be published "for four successive weeks in some daily or weekly newspaper," and a certificate that it was published five times in a daily issue of a daily paper giving the date of the first and last publications was fatally defective, conferred no jurisdiction upon the court, and did not set in motion, against the allegations of the petition, the one-year statute of limitations. The law requires the publication to be made for four successive weeks, and the certificate must follow this requirement and state that the notice was published for four successive weeks, giving the date of the first and last publications. Certifying that a notice was published five times in th daily issue of a daily newspaper, is not equivalent to saying that it was published for four successive weeks, and there is no way of placing such a construction upon the language. Evans v. People, 139 Ill. 552, 28 N. E. 1111; Chandler v. People, 161 Ill. 41, 43 N. E. 590; Toberg v. Chicago, 164 Ill. 572, 45 N. E. 1010. 3. APPEAL AND ERROR 68 APPEALABLE ORDERS-STATUTES. Rev. Laws, § 5339, providing that, upon an appeal from an order made on affidavit, a certishall be annexed to the order in place of the fied copy of the affidavit and counter affidavit statement on appeal, and section 5356, providing that on appeal from an order appellant shall furnish the court with a copy of the notice of the papers used on the hearing, and a stateappeal, the order appealed from, and a copy of ment, if there be one, apply to appealable orders only, and do not give an appeal from orders not otherwise appealable. Error, Cent. Dig. §§ 344-351; Dec. Dig. 68.] [Ed. Note.-For other cases, see Appeal and 4. APPEAL AND ERROR 870-ORDERS RE VIEWABLE-DENIAL OF CONTINUANCE. An order denying a motion for a continuance can only be reviewed by appeal from a judgment or order refusing a new trial, or by bill of exceptions properly allowed by the trial court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3451, 3487-3489, 34913512; Dec. Dig. 870.] Appeal from District Court, Ormsby County; Frank P. Langan, Judge. Action by Ada Rita Rosenthal against Hu bert Semmy Rosenthal. From a final judgment, and an order refusing a continuance, defendant appeals. Appeal from order dismissed. Judgment affirmed. John M. Chartz, of Carson City, for appellant. Samuel Platt, of Carson City, for re It does not follow, because the notice was spondent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MCCARRAN, J. The notice of appeal filed in this case states that it is an appeal from the final judgment and from an order refusing a continuance. Respondent has moved to dismiss the appeal, upon the ground that there is no record before this court, as required by the statutes of Nevada and the rules of the court. It appears from the record that, prior to the trial of the cause, defendant in the court below, appellant herein, moved the court for a continuance for the purpose of procuring the depositions of witnesses. The motion for continuance being denied by the court, the cause proceeded to trial and final judgment, in which a decree of divorce was issued. In this case appellant appears here without bill of exceptions or statement on appeal. [1] An order of the trial court in allowing or dismissing the motion for continuance is not of itself an appealable order, and can be reviewed only on appeal from the final judgment. Revised Laws, § 5329; Whitefoot v. Leffingwell, 90 Wis. 182, 63 N. W. 82; Jaffray v. Thompson, 65 Iowa, 323, 21 N. W. 659; Shearouse v. Smith, 83 Ga. 520, 11 S. E. 560; State v. Ducker, 35 Nev. 214, 127 Pac. 990; Haraszthy v. Horton, 46 Cal. 545. [2] In the case of State v. Wallin, 6 Nev. 280, this court held that where there was no bill of exceptions, and no statement on appeal, and the affidavits in support of the motion for continuance were not properly in the transcript, the alleged error of the trial court in refusing a continuance could not be considered by this court. In the case of State v. Preston, 30 Nev. 307, 95 Pac. 920, this court said: "The Supreme Court of this state, to be cloth ed with jurisdiction to adjudicate whatever ques tions are properly raised by an appeal from an inferior court, must be connected with the proceedings had in the lower court substantially in the manner required by the statutes regulating appeals; otherwise, this court acquires no jurisdiction. If any of these essential links required by mandatory statutes and necessary to give this court jurisdiction are lacking, the attempted appeal confers no jurisdiction on this court, and the proceedings must be dis missed." It has been repeatedly held by this court that, in the absence of a statement on appeal or bill of exceptions, this court is confined to a consideration of the judgment roll alone. Werner v. Babcock, 34 Nev. 42, 116 Pac. 357, and cases there referred to. [3] We are referred by appellant to certain sections of the Civil Practice Act, to wit, sections 5339 and 5356, Rev. Laws: "Sec. 5339. The provisions of the last preceding section shall not apply to appeals taken from an order made upon affidavit filed, but a certified copy of such affidavit and counter affidavit, if any, shall be annexed to the order, in the place of the statement on appeal mentioned in that section." "Sec. 5356. If the appellant manner to be correct. fails to furnish the requisite papers, the appeal may be dismissed." In our judgment, the sections of the statute here cited apply to appealable orders. To say that an appeal might be taken from every order made by a court during the pendency of an action would be to give sanction to a multiplicity of appeals growing out of a single litigation, attended as such a course would be by expense and inestimable delay. A modern and very reliable commentary puts it that: will lie are those which either terminate the "Judgments and orders from which an appeal action or operate to divest some right in such a manner as to put it out of the power of the court making the order to place the parties in their original condition after the expiration of the term." 2 R. C. L. § 22. In the same work we find it stated: is, of course, in no way final, and it may safely "An order granting or refusing a continuance be stated that such an order is not reviewable on appeal or writ of error before final judgment." 2 R. C. L. § 30. If further authority were necessary to support the proposition that an order granting or refusing a continuance is not, as a general rule, appealable, it would be only necessary to cite the decisions of the courts of many states set forth in support of that rule in a very recent publication. 3 Corpus Juris, p. 473, § 295. We recognize, without comment here, that this rule may be subject to exception, and has been so held in cases where the rights of the parties would be permanently affected. Humburg v. Namura, 13 Hawaii, 702. We are referred by appellant to the case of Beatty v. Sylvester, 3 Nev. 228, in support of his contention that it was not necessary to bring the appeal from the order to this court either by a bill of exceptions or statement on motion for a new trial. It will be observed, however, that in the case cited the error complained of was brought to this court by way of bill of exceptions, and the method of appeal was not attacked. decision of this court in the case of Weinrich v. Porteus, 12 Nev. 102, if applicable at all, could only be so in the event that the order appealed from was in fact an appealable order, one specifically recognized as such by statute or by rule; and, as we have already stated, an order denying a motion The for a continuance does not come within this class. The case of Thompson v. Bank, 19 Nev. 293, 9 Pac. 883, is not in point. The case of Smith v. Wells Estate Co., 29 Nev. 411, 91 Pac. 315, if applicable at all, supports the position that we take here. [4] The order of the trial court denying appellant's motion for continuance not being an order from which a direct appeal could be taken, it is our judgment that the action On an appeal from an of the trial court in this respect could only order, the appellant shall furnish the court with be reviewed by this court when brought here a copy of the notice of appeal, the order appeal by one of the avenues prescribed by the ed from, and a copy of the papers used on the hearing in the court below, and a statement if statute; i. e., by appeal from the judgment there be one, such copies to be certified in like or order refusing a new trial, or by bill of exceptions properly allowed by the trial court. There being no bill of exceptions or statement on appeal in the record presented to this court, and the statute permitting no direct appeal from an order denying a motion for continuance, the direct appeal here attempted from the order must be dismissed. On an appeal from the judgment alone, without statement or bill of exceptions, this court can only consider the record constituting the judgment roll. Peers v. Reed, 23 Nev. 404, 48 Pac. 897; Werner v. Babcock, supra; Western Eng. & Const. Co. v. Nevada Amusement Co., 33 Nev. 203, 110 Pac. 1129. No error is contended for as existing in the judg ment roll. The judgment should be affirmed. It is so ordered. Original proceedings by W. L. Counts for Writ denied. writ of habeas corpus. Sweeney & Morehouse, of Reno, for petitioner. Lester D. Summerfield, City Atty., of Reno, for respondent. NORCROSS, C. J. This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully held in custody by the chief of police of the city of Reno upon a charge of misdemeanor for the violation of a certain ordinance in said city, known as City Ordinance No. 183, and entitled: the collection of a license tax upon jitney bus"An ordinance to fix, impose and provide for ses and to regulate, the operation and running of the same within the city of Reno; to fix a penalty for the violation of its provisions; and to repeal all ordinances and parts of ordinances in nance No. 176." NORCROSS, C. J., and COLEMAN, J., conflict therewith, and particularly City Ordi concur. (39 Nev. 61) (No. 2201.) Ex parte COUNTS. (Supreme Court of Nevada. Nov. 26, 1915.) 1. LICENSES 6-POWERS OF CITY COUNCIL -JITNEY BUSSES. Section 1 of the ordinance in question, under the heading "Definition of Terms," provides: "A jitney bus' shall mean and include any self-propelled motor vehicle, other than a street car, employed in the business of carrying passengers for hire over fixed routes, or between certain definite points, within the city of Reno." Under Reno City Charter, art. 12, § 10, Section 2 of the ordinance requires a subd. 12, as amended by St. 1915, c. 184, giving written application, according to a prescribthe city council power to impose a license tax on and regulate hacks, hackney coaches, and "alled form, for a license to engage in the busiother vehicles used for hire," the city council ness of operating or running a "jitney bus" had authority to pass an ordinance licensing to be filed with the city clerk. and regulating the operation of jitney busses. [Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 5, 6, 19; Dec. Dig. 6.] 2. STATUTES 137-AMENDMENT - AMEND MENT OF REPEALED ACT. An amendment of a city charter was not invalid because the title of the act purported to amend an act theretofore repealed. [Ed. Note.-For other cases, see Statutes. Cent. Dig. § 204; Dec. Dig. 137.] [Ed. Note.-For other cases, see Licenses, Cent. Dig. 88 7-15, 19; Dec. Dig. 7.] 4. CARRIERS 2-JITNEY BUSSES - REQUIRING INDEMNITY-BOND OR INSURANCE. An ordinance requiring every jitney bus to take out license and to give an indemnity bond, or take out insurance for the benefit of persons injured, is valid. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 4, 5; Dec. Dig. 2.] 5. MUNICIPAL CORPORATIONS -LICENSES-JITNEY BUSSES. 592-POWERS St. 1913, c. 206, regulating automobiles or motor vehicles on public roads and streets, providing a license for the operation thereof, and in section 15 providing that the act shall in no wise affect any statute now existent nor that may hereafter be enacted providing for the licensing of automobiles for hire, does not interfere with the power of a city to license and regulate the use of jitney busses. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1311-1314; Dec. Dig. 592.] Section 3 of the ordinance requires that the written application be accompanied with a surety company bond or a policy of insurance executed by a company authorized to do business in Nevada, in the sum of $10,000 for the operation of not to exceed one "jitney bus," and $5,000 for each additional "jitney bus" proposed to be operated, such Indemnity bond "conditioned to the effect that in the event of any person or property being injured or damag ed by negligence or carelessness in the operation of any jitney bus owned or operated by or under the control of the person filing such indemnity bond, the person so injured in his person or property shall have a right of action there on. * Such policy of insurance, if furnished in lieu of a bond, to insure the owner, lessee, or person in control of said"jitney bus against loss by reason of damage that may result to any person or property by reason of negligence or carelessness in the operation of any jitney bus owned, operated or under the control of the person filing such policy of insurance. Said policy, or policies, of insurance shall guarantee payment of any final judgment rendered against the said owner or lessee of said jitney bus, under the terms and conditions herein before set forth, irrespective of the financial responsibility of the owner, lessee or person having the control of said jitney bus." * * Section 4 of the ordinance provides that the city council shall grant a license to operate such jitney bus or busses upon the approval of such bond or policy of insurance; the other provisions of the ordinance appearing to have been fully complied with. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |