The County of Ormsby v. The State of Nevada.

This was an action to recover five hundred dollars alleged to be due as a balance of rent for the year 1869, for the upper part of the "County Building" in Carson City, occupied by the State for public offices. It appears that the premises were leased by Ormsby County to the State in December, 1865, for one year, at a rent of two thousand five hundred dollars, "said rent being payable pro rata in equal monthly payments, at the beginning of each month," and they continued to be occupied in 1869. When the bill for the rent of that year was presented to the board of examiners, they allowed and approved it to the amount of two thousand dollars, and rejected it as to the sum sued for.

R. S. Mesick, for Appellant.

Authority to sue the State of Nevada is found nowhere, except in the Statute of 1869, and is conferred only in those cases where the claim is for services or advances. Rent is certainly not included in the term "services," and we think it not included in the term "advances." (Bouvier's Law Dictionary, title "Advances"; 10 Barb. 73.) If not included in that term, the District Court had no jurisdiction in this case, and the judgment must be reversed.

A. C. Ellis, for Respondent.

The term "advances as used in the statute has a more liberal meaning than the one claimed by the appellant. If it should be restricted to its definition given by Bouvier-to its strict commercial meaning, (the prepayment of money by a factor or agent to his principal, on the credit of goods belonging to the principal, which are placed, or to be placed, in the possession of the factor or agent, in order to reimburse himself out of the proceeds of the sale of such goods) then the statute is meaningless. The State does not engage in that character of business, and no appropriation is made for the payment of such advances, and such are not authorized by law.

The true interpretation of the statute may be arrived at by taking the definition of "advances" as given by Webster and Worcesteras a giving beforehand, a furnishing of something on contract, before an equivalent is received.

The County of Ormsby v. The State of Nevada.

The use of a building being a legal something which may be paid for in money, precisely the same as wood or stationery, and a something which may be advanced precisely the same, is fairly within the statute. Besides, "advances" have not always been held to mean money in the sense referred to by Bouvier. (4 Kent, 175.)

By the Court, WHITMAN, J.:

This action was for the recovery of a balance claimed to be due for the rent of certain premises, the property of Ormsby County, occupied by the State of Nevada.

The authority for the suit is said by respondent to be found in the Act entitled "An Act to enable a certain class of claimants against the State to appeal to the Courts," which provides:

SEC. 1. Any officer or person who has presented a claim against the State, for services or advances authorized by law, and for which an appropriation has been made, but of which the amount has not been fixed by law, to the Board of Examiners, which claim said Board or the State Controller has refused to audit and allow in whole or in part, may commence an action in any Court of Ormsby County having jurisdiction of the amount, for the recovery of such portion of the claim as shall have been rejected. In such action the State of Nevada shall be named as defendant, and the summons shall be served upon the State Controller, and the action shall proceed as other civil actions to final judgment. (Stats. 1869, 104.) To the complaint a general demurrer was interposed, and also a motion to dismiss for want of jurisdiction; both were overruled, and defendant declining to answer, judgment went as prayed.

The only point made upon demurrer or motion was, that respondent was not of the class specified in the statute, because rent could not be included in either of the terms used, i. e., "services or "advances." It is conceded that it cannot come within the meaning of the former word, but respondent contended that it may, and does, clearly come within the meaning of the latter. The special point of dispute is as to the proper meaning in the Act of the word "advances"; appellant seeking to confine its signification to the strict legal definition, and respondent claiming its more proper usage.

The County of Ormsby v. The State of Nevada.

The rule of construction, as laid down by Mr. Sedgwick, is as follows: "When technical words occur in a statute, they are to be taken in a technical sense, unless it appears that they were intended to be applied differently from their ordinary or legal acceptation." (Sedgwick, Stat. and Const. Law, 261.) So, Mr. Kent: "The words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense, unless it clearly appears from the context, or other parts of the instrument, that the words were intended to be applied differently from their ordinary or their legal acceptation." (1 Kent's Com., Sec. 462. See also Clark vs. City of Utica, 18 Barb. 451; Mallan vs. May, 13 M. and W. 511.)

It is possible that the statute in question, upon close investigation, might fall within the general rule as quoted; but that rule, although supported by the highest authority, is, as experience has proved, of dangerous application. The cases where a Court should exercise the right given under it, should be of the clearest; as when a Court takes one step outside the literal wording of a statute, to declare what otherwise or otherwhere appears, there arises at once the possibility, if not the probability, of that assumption of power-judicial legislation—a thing to be most cautiously avoided under the true theory of our Government-National and State.

There is, though, always this distinction to be observed in settling the meaning of technical words, or words having a peculiar legal signification, when they occur in a statute. Such words, when used with reference to the particular subject as to which they have a special meaning, should receive that and no other; but if used generally, the natural conclusion is, that the popular meaning is the one intended. As for instance, a statute touching Courts and legal process is to be held to speak technically when using legal phrases; so one relating to military matters and using words having a received military sense; so in matters of art and science; and so the present statute, had it treated of principal and agent, would necessarily have used the word "advances" in a legal sense; but when it is remembered that in law, advances are only recognized as matters running between principals and agents, and when it is

Elliott v. Ivers.

seen that the statute is not treating of these, then it follows that this special and peculiar meaning is not to be adopted, but the ordinary popular meaning is to be taken not only as correct, but as the only one which could have been intended. Now, if under such signification the claim of respondent could be included, then it follows that its judgment should be sustained.

Popularly, almost numberless advances are spoken of by general good use. There are those hostile, friendly, social, amatory, business, pecuniary; and, now specially touching this case, Webster gives the definition: "A furnishing of money or goods for others, in expectation of reimbursements; or the property so furnished." So, Mr. Worcester gives as one meaning of the verb "to advance," 66 to furnish on credit.". Within these definitions the claim of respondent clearly falls. It was advanced to the appellant upon a contract, and upon a credit, and with the expectation of reimbursement; a something of legal and commercial value; the use and occupation of certain premises. The right, then, to use and occupy, and the actual use and occupation, created the relation of landlord and tenant, and imposed upon the latter an obligation to pay the former the agreed rent; or in absence of any express agreement, what the use and occupation enjoyed might be reasonably worth. The judgment of the District Court is affirmed.

WILLIAM D. ELLIOTT et al., RESPONDENTS, v. WILLIAM IVERS et al., APPELLANTS.

DISMISSAL OF ACTION BY PLAINTIFF NOT TO AFFECT INTERVENORS. Where O'Connell & Splain commenced a suit to foreclose a mechanics' lien against Ivers & Cook; and Elliott, and Petty & Doane intervened as lien claimants, and after appearance put in by defendants to the interventions, O'Connell & Splain filed a dismissal of the suit; Held, that the dismissal could not affect the rights of the intervenors, and that they had a right to adjudication as between themselves and defendants.

PROCEEDINGS TO FORECLOSE MECHANICS' LIEN. The statute relating to mechanics' liens (Stats. 1861, 36) contemplates a formal suit, a publication of notice, an appearance upon the part of lien claimants other than those commencing the suit, and a disposition of the entire matter of liens against the property affected, in one proceeding; and any person prejudiced by error in the proceeding may object.

Elliott v. Ivers.

NOTICE OF SUIT TO FORECLOSE MECHANICS' LIEN. The failure of a plaintiff, in an action to foreclose a mechanics' lien, to publish notice of the suit will not deprive a lien claimant, who intervenes in the action, of his right to have an adjudication of his claim.

FORECLOSURE OF MECHANICS' LIEN-RIGHTS OF INTERVENORS. Where in a suit to foreclose a mechanics' lien, certain lien claimants intervened, and defendants answered and demurred to their interventions; Held, that the court acquired jurisdiction of the subject matter, and the parties, and the whole thereof; and that the plaintiff could not, by a dismissal of the suit, prevent an adjudication as to the rights of the intervenors.

APPEAL from the District Court of the Eighth Judicial District, White Pine County.

This action was originally commenced by John O'Connell and Philip Splain, to foreclose a mechanics' lien in their favor, for blacksmith work and articles furnished upon a building erected by William Ivers, in Hamilton, White Pine County. The amount of their bill and lien was three hundred and ten dollars and ninety-one cents. William D. Elliott claimed a lien to the amount of nine hundred and fifty-four dollars and seventy-five cents, for mason work; and William R. Petty and G. W. Doane, a lien to the amount of five hundred and eleven dollars and sixty-five cents, for carpenter work. The suit was commenced in September, 1869; the interventions filed in October, 1869, and the defendants filed their answer and demurrer to the interventions in November, 1869.

On March 18th, 1870, when the cause was called for trial, defendants objected to proceeding, and produced a paper signed by plaintiffs' attorney directing the clerk to dismiss the action, and stating that the same had been settled; but at the instance of the intervenors the trial proceeded, as between them and the defendants. After decree against the latter, they appealed.

Ellis & King, for Appellants.

After the dismissal of their action by O'Connell & Splain, no action or proceeding was pending, and the proceedings were coram non judice as to the intervenors. There was no order of Court admitting any intervention in the action; and under our Practice Act an intervention takes place only when a third person is permitted by the Court to become a party, either joining the plaintiff in claiming