Gottwals v. Manske , 60 Nev. 76 ( 1940 )

ON PETITION FOR REHEARING April 1, 1940. 100 P.2d 580. OPINION Respondent Fred Manske has petitioned for a rehearing for the reason he asserts the court did not pass upon the point raised by him that even if the proceeding in the lower court was civil in its nature this court had no jurisdiction to entertain the appeal because of the amount involved before the lower court; which was the sum of $114.27.

1. Respondent raised such objection to the jurisdiction of this court to determine the appeal, the court considered such objection, examined the authorities cited in support thereof, and in determining it had jurisdiction necessarily decided there was no merit in such objection. We are of that opinion now.

2. In his petition for a rehearing respondent Manske also asks the court to indicate whether, should this matter come before this court on another appeal, the rule laid down in the case of Dunsmoor v. Furstenfeldt, 88 Cal. 522, 26 P. 518, 12 L.R.A. 508, 22 Am. St. Rep. 331, that the facts in that case constitute an exception to the general rule that funds in the hands of the court may not be levied upon without the consent of the court in whose custody they are, will be followed, or the court will adopt and follow the contrary rule laid down in Bankers Mortgage Company v. McComb, 10 Cir., 60 F.2d 218.

In our opinion we said it was not necessary to determine which was the sounder rule because: "the facts set forth in the affidavit, on which the contempt proceedings were based, do not bring this case within the exception to the general rule, as defined and set out in Dunsmoor v. Furstenfeldt, supra" [99 P.2d 645, 649], and we now hold the same opinion. It is therefore neither necessary nor proper to comply with the respondent's request.

The petition for rehearing is denied.

NOTE — ORR, J., being disqualified, the Governor designated HON. L.O. HAWKINS, Judge of the Sixth Judicial District, to sit in his stead.