Cortina v. de Sollano

Full title: IGNACIO CORTINA B., CARLOS LEZAMA, GUILLERMO ALVAREZ MORPHY, W. HAMPTON…

Court: Supreme Court of Nevada

Date published: Apr 28, 1959

75 Nev. 151 (Nev. 1959)

75 Nev. 151

336 P.2d 762

Opinion

338 P.2d 74 (Nev. 1959) 75 Nev. 151 Ignacio CORTINA B., Carlos Lezama, Guillermo Alvarez Morphy, W. Hampton Katze, Herman H. Maulhardt and Jean Maulhardt, husband and wife; Donald M. Prentice and Elizabeth Prentice, husband and wife; Antonio Di Giovanni and Gandolfa Di Giovanni, husband and wife; Anna Di Giovanni; Charles F. La Mantia and Margaret La Mantia, husband and wife; Joseph V. La Mantia and Verna La Mantia, husband and wife; Phillip J. La Mantia and Dorothy La Mantia, husband and wife; T. Anthony La Mantia and Pearl La Mantia, husband and wife; and Process Millers, Inc., a Nevada corporation, Appellants, v. Carlos S. F. Diez DE SOLLAND, Jose Maria Berriozabal, Collis E. Dore and Warren J. Roussel, Respondents. No. 4115. Supreme Court of Nevada. April 28, 1959.

         Morse, Gravess&sCompton, Las Vegas, for appellants.

        Hawkins, Cannons&sKelly, Las Vegas, and Marion A. Smith, Santa Maria, Cal., Gibson, Dunns&sCrutcher and Samuel O. Pruitt, Jr., Los Angeles, Cal., for respondents.

        PER CURIAM.

        Respondents have filed a petition for rehearing upon this appeal. In our view rehearing is not warranted. One ground, however, would seem to warrant comment.

        In disposing of the contention of respondent de Sollano that he had in any event made a valid subscription to the stock, we stated in our original opinion: 'De Sollano also contended that the corporation was indebted to him in sums exceeding the amount necessary for his pre-emptive payments. This, however, entirely failed of proof.' [336 P.2d 770.] The petition for rehearing takes issue with this statement and refers to various places in the record indicating that the corporation was indebted to de Sollano and had indeed actually, at a later date, made payments to him on account of such indebtedness. Perhaps our statement of there being an entire failure of proof was too cryptic.

        The true issue upon this point was not whether the corporation was then actually indebted to de Sollano in some unliquidated amount for past services and miscellaneous advances. Rather, it was whether an indebtedness then existed which de Sollano as a matter of right could apply against the amount necessary for pre-emptive payments. A further study of the record in the light of the petition reinforces our view that there was a complete failure of proof that such an indebtedness existed.

        Rehearing denied.