The Eureka sentinel. [volume] (Eureka, Nev.) 1902-current, 1913-06-28

accordingly.
Judge Breen also rendered a decision
in the case of Henry K. Mitchell, plant
III. VS.. Martin Mahoney, Sheriff of the
County of Eureka, Nevada. and p. M.
Des Marias, defendants, as follows:
An action to set aside a Sheriff's sale
OF certain property to wit: Mines and
mining claims situate in the county
of Eureka, State of Nevada. Many
grounds are set ont in the complaint in
support thereof, all of which were de-
termined by the findings of the jury,
adversely to plaintiffs contention, save
the all important contention that the
execution upon which the sale was
made 10 the case of Romandini Gaetano
VS.. Henry K Mitchell, tried and decided
BY the above named Court. was issued
upon the ''opinion and decision" of the
Court. instead of on the formal judg-
ment entered in the last named case, as
provided by law.
A jury was ~impanneled to assist the
Court in fading certain facts. The
facts to be found as set out in the in.
terrogatories for plaintiff and defend
ants. had reference solely to the question
Of alleged Irregularities and misconduct
upon the part of the Clerk of the COURT
in the filing of certain papers. etc.. in
tha oaSa ~ aafA Gaaton4 M Mikah1ll
and of the Sheriff's conduct of the sale
and return of the execution. which are
alleged to have been p%rejudicial to the
defendant. Mitchell.
The findings Of the jury fully exoner-
ate the officers aforesaid, and this Court
having 30 good reason to doubt the
correctness of the findings under the
evidence, hereby adopts the same.
But the serious question remains, as
to whether the execution was issued
prematuroly, improvidentially, and
upon the judgment provided by law
upon which execution may issue.
The "opinion and decIsion," above
referred to, in the said case of Gaetano
VS.. Mitchell, was written on the 18th
day of April. 1911. and filed in the
Clerks Office on the 14th day of April.
1911. and dooketed as the Judgment in
the case on the last named day.
The Judgment" based upon the said
opinion and decision. was filed on the
l4th day of May. 1911, or one month
later. In the writ OF execution it lie
stated: 1.-THE Judgment roll in said ac-
ton. (Gaetano VS.. MitchelD in which
said Judgment was entered. is filed in
the Clerk g office in said District Court
in the county of Eureka, and the said
Judgment was docketed in said Clerks
office on the l4th day of April, 1911"
The evidence clearly shows that the
writ Of execution was issued upon the
"opinion and decision" Of the COURT
a fact not disputed at any stage of the
proceedings. but openly admitted by
counsel for Gaetano. in that case.
Sec. 1905. Comp. l. 1900, (Sec. $3.50,
r. l.. of Nevada) provides as follows:
1.-THE party in whose favor Judgment is
given may at my time within six years,
after the entry thereof. issue a writ Of
execution for its enforcement as pre-
scribed in this chapter" II seems 10
me the Judgment" referred to in the
above section. is not the "opiuion and
decision" but the formal Judgment
which is based upon the same.
Counsel for the defendants strenuous.
ly c~ontended in elaborate briefs and oral
argument that the ''opinion and de-
c~ision" Of the Court was a Judgment.
under the statute. upon which execution
may issue; a position l n agree
with; O have | found any case during