stating that rules exempting homesteads from forced sale should be liberally construed
How later courts described this case
- stating that rules exempting homesteads from forced sale should be liberally construed
- declarants failed to show they were residing with their family on the premises at the time the declaration was made
Written by the judges who cited it.
The opinion
On Petition for Rehearing
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For former opinion, see 61 Nev. 34 , 116 P.(2d) 581.
Gordon W. Rice,
of Reno, for Appellants.
R. R. Gill,
of Ely, for Respondent.
OPINION
By the Court,
Taber, J.:
In their petition for rehearing appellants stress the fact that the judgment in the promissory note case was against the husband alone. This point was not urged in the briefs on appeal. It may further be observed that in Lachman v. Walker, 15 Nev. 422 , the judgment, as here, was against the husband only.
But appellants insist that the rule in Lachman v. Walker, supra, is no longer the law of this state. We are referred to secs. 3360, 8844, and 9700 N. C. L. 1929, and sec. 112 of the 1941 act concerning the estates of deceased persons, Statutes of Nevada 1941, ch. 107, p. 186. With reference to said sec. 3360 N. C. L. it is sufficient to say that the words “no deed of conveyance” used therein do not include in their meaning a sheriff’s deed made pursuant to sale on execution. The three other sections were not mentioned at all in the briefs on appeal. Contentions not advanced on the original hearing will not be considered on petition for rehearing.
In the foreword to the petition for rehearing it is stated that the decision of this court is based on the failure of appellant’s declaration of homestead to state that they were residing on the premises with their family at the time it was filed. The fact is, as expressly stated in the original opinion, that besides the failure of appellants to even substantially comply with one of the provisions of sec. 3315 N. C. L. 1929, the record affirmatively shows that they were not in fact residents of White Pine County when their declaration was filed.
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If the record does not disclose the real truth in this regard, it is not, as we pointed out in our previous opinion, the fault of this court.
Counsel cites two Nevada cases in support of his statement that findings of fact are no part of the judgment roll. Such was the law when those cases were decided; but the statute has been changed, and for many years last past it has been, and is now, the law of this state, that the findings of fact constitute a part of the judgment roll. Section 8829 N. C. L. 1929; Hartford Mining Co. v. Home Lumber & Coal Co., 61 Nev. 17 , 107 P.(2d) 132, 133.
The petition for rehearing is denied.