Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1903-11-08

coming q tho court n AyFeo '. 0ISrI7
roll. 10 Boow., 143, cited BY N In Wal
ker '. Johnso0. although not the op-
inion Of court Of last resort, strikes
~ % sound and convincing. We think
confusion has sometimes arisen byI
failure to distinguish between . case
where the counterclAim fails to state
Z cause Of action and case where, al
though It states 4 good cause Of act
lon. It IL one which 10 not the subject
ct counterclaim under the statute. Of
course. in the first case. the defect
can be taken advantage Of at any time,
even after judgment, precisely Is II
It we're set up in q complaint" Lave
V. Fixen. 80 Mimi, 48.
It Is held In Shuster v. Finan, 10
Kan, ia, Cushing v. Miller, 62. N. H., |
SIT and Creager v. School District, 60 !
Mich, 101, that the form Of the pro- |
ceeding will not invalidate it If objec-
ton is not seasonably made. Other de-
cisions are cited in those mentioned
and the following also are in point:
Lee v. Russell, 80 S. w. Rep, S74.
Mckune v. Santa Clara Valley
Mill and Lumber Co., AZ, p. $50.
Township of Noble v. Asen, Is n.
W., $50.
Mississippi & Rum River Boom
Co., v. Prince, N. w. "a, 344.
Campbell v. Jones XIV Mimi,
1885,
Baugh v. Barrett, 20 N. w. 42s.
Puffer ". Lucas, 1O1 N c., 1885,
Abbot's Trial Brief (CiviD q.
| Note OBJECTIONS waived" and
| list of cases.
If the counterclaim were beyond the
jurisdiction of the District Court and
the case were reversed for that rea-
son, the Plaintiff could plead the sta
tute of limitations effectively at this
late day. if Defendant brought new
action for the damages he claims to
have suffered. Under such circumstan-
/ ces the Supreme Court of Missouri
refused to examine the question Of
jurisdiction then raised for the first
time, and said, I'VE feel that GROSS
injustice would be done, should we
consider the question and determine
that the original judgment was null
and void for want of a jurisdiction
in the court to render it. If that judg-
ment was a nullity. then the statute
OF limitations could be interposed ag
: ainst the demand" Boone v. Shock
, ford, 66 No. 493.
At the close of the Defendants tes
timony the Plaintiff moved the court
l to reopen the case and offered to
prove that he and his grantors had
J. used and enjoyed the Ennor ranch
and its appurtenances since 1871 II
> the same manner that he had done il
/ 1896. It will be noticed that the prof
l. fered testimony had no tendency Il
o disprove that Raine was the prior ap
proprietor and owner of the water
= which. by tearing out the dams, h
e allowed to flow to his ranch, nor tina
= = he was not entitled to a right of wa
- for the conveying of this water alon
!. the natural channel or ditch thrOug
- the EnnOr place. nor was it sufficient
= ly complete in other respects to estat
lish bar by limitations. II it be claim
= ed that the offer was broad enoug
!. to show that the Plaintiff had use
the water for more than five years
the same manner" that he used 1t i
8 1896, his use and the running of tn
:. statute were interrupted by Raine ths
~ year, and theoretically every one pr
~ vious. In order to create q right i
= prescription, the claimants use of th
": water must be uninterrupted. advers
under claim of right and with tt
% knowledge of the owner, Authors
70 Bryant, % New, PAT. If the Plainti
y had been allowed to prove all the OF,
n. included. that would not have strengl
. ened his case, for these essentia
- were. lacking.
=. Some decisions hold that an amen
"a ment to the answer ought not to
hv permitted, unless by a defendant a.
10. ing in q dduciary capacity, for tt
Ia. purpose of interposing the statute
:. limitations, and IL q defendant is
~. be denied this privilege on or befo
70 the trial. and thereby prevented fro
a. proving this defense, by analogy a
- for reasons equally convincing, Il
~ lplaintiff ought not to be favored wi
"a this opportunity after the colse
~ the defendants testimony. There m
- be extreme cases where the trial cou
NO would, in it's sound discretion, be j,
"a titled in making exceptions to tt
rule.
u The Judgment of the District Cot
80 is affirmed with costs in favor of {
49, Respondent
Of - o'' .
~; r' Belknap, c. J.
Judge Fitzgerald having presid
~ in the District Court did not parti
;nr pate in the hearing on appeal.
~, Filed Nov. 1, 1908.
~ w. G. Douglass, Secretary of Sta
~ and ex-oficio Clerk Of the Suprel
.. Court.
~. Filed with printer for publicati
ves this 4th day Of November, 1908.
,,,s w. G. Douglass, Secretary of st.
ors Gt eao o'o'n u 'n0 SUPP
in
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ii: tails G. I. B. on the back. Fint