Kingsbury v. Copren

217 P. 1101, 47 Nev. 167, 1923 Nev. LEXIS 38

Opinion

By the Court,

Sanders, J.:

The plaintiff sued the defendant individually and as administrator of the estate of Thomas J. Higgins, deceased. It appears that upon the calling of the case for trial before a jury the complaint was changed throughout to run against the defendant, individually and as executor of the estate of the said Thomas J. Higgins, deceased, to conform to the facts.

The action was one of claim and delivery for the unlawful withholding by the defendant, individually and in his executorial capacity, of a diamond ring and a diamond stick-pin, alleged -to be the property of plaintiff. The jury returned a general verdict against the defendants for the return of said property, or, in case return cannot be had, that plaintiff have judgment against the defendants for its value, to wit, $1,100. Upon this verdict of the jury the court rendered and caused to be entered a joint judgment against the defendants, in accordance with the finding of the jury. A motion for a new trial, made on behalf of defendants, was denied, and from this order and said judgment they have appealed.

The motions to dismiss the appeals and to strike from the record certain parts of the bill of exceptions are denied.

In the view we take of the record it is necessary for us to consider but one of the numerous assignments of error, which is that the joint judgment against the defendants individually and as executor of the estate of Thomas J. Higgins, deceased, is anomalous and illegal.

Upon a former appeal from a judgment for the defendant on demurrer to the original complaint herein (Kingsbury v. Copren, 43 Nev. 448, 187 Pac. 728, 189 Pac. 676), plaintiff was expressly informed, both in the opinion reversing the judgment and in ruling upon the petition for rehearing, that it would be an impossibility for the defendant to hold the possession of the property in controversy both as an individual and as administrator, nor could plaintiff charge the defendant with holding said property in both capacities.

This being the law of the case, it necessarily follows that the joint judgment is illegal and must be reversed and the case remanded for a new- trial.

It is so ordered.