Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-01-28
Ccnterville etc. VS.. BachtOld, Jos
Cal. ll3.
See also Corcoran VS.. Desmond, ::
Cal. lO2.

For these reasons, we deem 1T not
proper to disturb the rule of practice that
has been so long and so universally /
accepted and acted upon by the courts of
this State, and are of the opinion that
less harm will result in following the in
depreciation given to the statute by such
acquiesre rse of the courts in the rule and
practice rs declared in the opinions above
cited upon a statute similar to our own
and of which GUS is copy.
FIFTH. The respondent also contends
that the decision of this court upon the
former appeal OF this action is a bar to
any further appeal, and therefore this ap-
peal should be dismissed. The opinion
Of the court upon the former appeal viii
be found in the % New. $50. AS the basis
Of this claim, respondent contends that
AS the record in this case shows that the
appellant, Howell, had after the first
trial ana jn1gm ~. in the District Court
ard Will such appeal was pending. he
come the successor in interest of the
Churches to Dhe property in controversy.
all matters are RS n9Nl,ccid under
rule N OF this court, and certain general
rules of equity. The cause was reversed
on the former appeal because of error in
the refu-a Of the District Court to make
the Churches parties to the action. Rule
x Of this court in no wise supports this
contention. In direct language it pro-
vides that upon the death or other dis
ability ~ party pending an appeal, his
representatives. shall he substituted in
the suit 10y Sugge~. ions in v!iging TO the
court on the par. OF such representatives,
or any party to the record, upon which
an order of substitution shall be made
and the cause shall proceed as in other
cases. 1t was not suggested on the for
mer appeal, nor was il u fact that any one
of the parties thereto pending such APP
peal had either died or become subject to
any disability. In fact the Churches
We're not parties t. the action as above
stated, and the cause was reversed be-
cause of the refusal of the District Court
to make them parties. We are not aware
of any rule of law or of equity or of this
court. that would Justify this court in
making new parties to an action on ap
peal other than the one above indicated.
Such order of this court would necessar-
lily imply that the court would have the
power, after making new parties, to hear
and determine any matter affecting their
interests, otherwise the order would be
stand by wha, course of reasoning the
court could Ee justified in sustaining the
respondents motion based upon the gen
eral rule of equity, applied to the facts
shown 10y the record on this and the for
mer appeal, to the effect. that in equitable
proceedings all equitable claims and de-
lenses should be set forth and if any
thing which might and should have been
submitted Is omitted for any cause, il
viii afterwards be too late to hear it ali j
it will DO regarded as having been adj
juaicatyd. At the time the record on APP
! peal was made at the first trial, the
Churches were not parties to the action
and the appellant, Howell, had not sue
ceeded to their interests and the tra
court could not ut that time have render
Ell any judy'n"II, affecting their rights OF
interests IL the property in controversy
nor could il at that time have rendered
any Judgment affecting the rights and in
terests of Howell as the successor to tn,
Churches. The motion to dismiss will
therefore be overrtled.
Having considered all the objections o
the respondent to the record presented il
her brief, We come now to consideration
of the cause on its merits.
The respondent, sought by this actor
! tfAe rat Il
trust and to perpetualiy enjoin the appel
lants from asserting or acting or claim
ing under the same, from leasing, operat
ing, encumbering, or in any manner di,
posing of, conveying, using, or selling tn
property mentioned in said trust deed, Q
any part thereof.
The deed was executed on the End da
f of August, 1892, by the respondent an
l James A. and E. d. Church to the appel
\ liant Henry Kind, and conveyed to hil
3 and his heirs and assigns certain real an
9 personal property therein describe,
8 upon trust nevertheless and TO and ft
the uses, interests and purposes herein
t after limited, described and declared, tn;
: is to say, upon the sale Of any or all
8 said property. the proceeds thereof sha
d be applied, first, to the payment of tt
!, rnnning expenses incurred upon sal
property, the wages of watchmen ar
5 taxes and on the claim of Eugene Howe
It against said parties of the first part f
a advances and salary up to May 31st, lss
= as the same appears charged upon Il
il books of Robinson, Church 4 Co., b
t the amount not to exceed four thousau
9 one hundred dollars; said Eugene How,
: to have possession and charge of t
is property as manager as heretofore, and
If work, sell, or lease all or any of 50
k property he may deem best and for t
n best interest of the respective parti
but to receive no compensation for /
N. services. Said Eugene Howell to kee1
correct set of books of all receipts frC
" said property and all expenditures the
as on and to furnish said party of the 81
D. ond part vouchers for all moneys 6
ed pended upon said property. Whene,
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