Opinion of the Court-Beatty, J.

bate judge has no authority to appoint any person guardian of the person or estate of a minor except upon a written petition in his behalf, and after notice of his application. This seems to be a fair if not the only construction of the law (Comp. L., sec. 833), and clearly appears to be the safest and the best; for to hold that upon the petition of A. and notice thereof to the relatives, B. or C. could be appointed guardian, might often deprive those interested of any opportunity of opposing an improper appointment. It follows, from this view of the law, that the appointment of Frevert was erroneous. But the difficult and embarrassing question remains; what order ought this court to make under the circumstances? There seems to be little doubt that if the appointment of Frevert as one of the joint guardians of the person is set aside, the appointment of the other joint guardians should also be set aside, because we cannot know that either would have been appointed except in conjunction with the other two. But the appointment of Johnson as sole guardian of the estate, although embraced in the same order by which the joint guardians of the person were appointed, is really an independent act; and as the statute authorizes the appointment of separate guardians of the person and estate, it does not seem very clearly to follow that because one part of the order is invalid it should be wholly set aside. We have concluded, however, after much consideration, that, as the estate of the minor must be subjected to the cost of another proceeding for the appointment of a guardian or guardians of her person, and as the hearing of that application will involve all the matters in controversy in this proceeding, and since the selection of a guardian for the person may be in some measure dependent upon the guardianship of the estate, it would be better to reverse the order completely and remit the whole matter to the unembarrassed discretion of the district judge.

The order appealed from is reversed and the cause remanded, with leave to appellant, respondent and all parties interested to make application for the guardianship; personal notice of the hearing to be served on the relatives and those entitled to notice at least five days before the same is brought on.

Argument for Petitioner.

[No. 771.]

Ex PARTE PETER LARKIN.

CONTINUANCE OF CRIMINAL CASE FOR THE TERM-SECTION 2207 COMPILED LAWS.-In construing section 582 of the criminal practice act: Held, that the fact that disastrous fire had occurred destroying the courthouse and so much of the city of Virginia as to render it impossible for the court to find a suitable room in which to meet, was sufficient to authorize the court to continue the trial of causes for the term. IDEM.-Courts usually require, and ordinarily should require, a showing to be made by affidavits, in order to continue causes for the term, when such continuance is objected to by either party; but when a condition of affairs exists that is notorious, and about which, from its very nature, there could be no conflict, the court is authorized, of its own motion, to continue the causes for the term. (Ex Parte Stanley, 4 Nev. 116, affirmed.)

SETTING CAUSES FOR TRIAL DURING THE TERM.-The regulation of the business of the term is a matter exclusively within the control of the judge, and cannot be interfered with by this court upon a writ of habeas corpus. SECTION 582 OF CRIMINAL PRACTICE ACT CONSTRUED.-Section 582 of the criminal practice act (1 Comp. L. 2207) is intended to prevent arbitrary, willful or oppressive delays; and whenever this appears to be the case, the defendant is entitled to be discharged.

HABEAS CORPUS before the Supreme Court.

The facts are stated in the opinion.

Louis Branson and L. T. Cowie, for Petitioner.

I. No showing was made, and no reason, in fact, given for either of the orders made by the court adjourning the hearing of the case.

II. The record in this case does not show that the destruction of the indictment by fire, or the sickness of the district attorney, were in fact the causes or reasons that moved the mind of the court to make the orders, nor were they the real reasons, in fact, which lay at the foundation. of the orders.

III. The cause not having been tried at the October term, and no showing made, and no reason in fact existing for the order of October 28, the district court had but one duty to perform-to dismiss; and having refused to do this, the prisoner's right to be discharged from custody became absolute and unequivocal.

Opinion of the Court-Hawley, C. J.

IV. The orders of the court being on their face void, the record cannot be helped by proving facts not judicially established at the time of the making of the orders, and which might or might not have entered into the consideration of the court at the time of making the orders complained of, and which have not been shown to have entered into the mind of the court, either by "showing," or of the court's own knowledge. In support of these views counsel cite Comp. Laws, secs. 1058, 1684, 2207; Whart. Am. Laws, secs. 2922, 2923; 1 Archibald, 566, 572; Commonwealth v. Phelps, 16 Mass. 425; Ex parte Stanley, 4 Nev. 113; Green's Case, 1 Rob. 731.

J. R. Kittrell, Attorney-General, and Lindsay & Dickson, for the State.

By the Court, HAWLEY, C. J.:

Petitioner having been indicted at the June term, A. D. 1875, of the district court in Storey county, and not having a trial at the next term of the court, asks to be discharged from custody in pursuance of section 582 of the criminal practice act, which provides: "If a defendant, indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial at the next term of the court at which the indictment is triable, after the same is found, the court shall order the indictment to be dismissed, unless good cause to the contrary be shown." (1 Comp. L. 2207.)

It was argued by counsel for the state that this question could not be raised upon habeas corpus, and it was so decided in Ex parte Walton (2 Whart. 501), upon the ground that the power to dismiss is confined to the court in which the indictment is pending. But in Green v. The Commonwealth (1 Robinson, 731), it was held by a majority of the judges, in construing a similar statute, that as the prisoner was entitled by law to his discharge, and as the court below had failed to make the order, the prisoner was entitled upon habeas corpus to be discharged from bail, and it was so ordered. As we are of opinion that petitioner is not entitled to his

Opinion of the Court-Hawley, C. J.

discharge upon the facts presented, it is unnecessary to determine this question, and we therefore, for the present, waive it.

Petitioner was indicted on the 16th day of September, 1875, arraigned on the 17th, and entered his plea of not guilty on the 20th of the same month, when the further hearing of said cause was continued until the October term. On the 12th of October the cause was called for trial, and after two days of unsuccessful efforts to obtain an impartial jury the cause was continued until the 18th of October, when, by the consent of the respective parties, it was continued until the 6th of December, 1875. So far, it is admitted that the court proceeded with all due and reasonable dispatch in order to give the defendant a speedy trial.

* *

On the 28th day of October, 1875, the court met, and after reciting the fact that the court "having adjourned on the 25th day of October, A. D. 1875, until the 26th day of October, A. D. 1875, at the hour of 10 o'clock A. M., and at said day and hour the court being unable to meet by reason of the fire which consumed the court-house and court-room, now, at this date, * being as soon a time as the court could meet, and as soon a time as a suitable place could be obtained after the said fire, the court meets at number sixty-six South C street, in the city of Virginia, county of Storey and state of Nevada," the minutes of the court show that orders were made providing for the substitution of papers and pleadings in the place of originals that were destroyed by the fire. After which the following orders, that are objected to by petitioner, appear:

"IN THE MATTER OF VACATING ORDERS, ETC.

"On motion of W. E. F. Deal, Esq., the members of the bar consenting thereto, it is ordered by the court that all orders heretofore made by the court at this, the October, term of said court, setting causes for trial, be vacated, and the same are hereby vacated and set aside. Louis Branson, Esq., attorney for defendant in the cause of the State of Nevada v. Peter Larkin, excepts to said order, continuing said cause, on the part of said defendant."

Opinion of the Court-Hawley, C. J.

"IN THE MATTER OF CONTINUING CAUSES, ETC.

"On motion of Jonas Seeley, Esq., the members of the Storey county bar consenting thereto, it is ordered by the court that the trial of all causes at this term of said court (except on stipulation) be and the same are hereby continued until the January term, A. D. 1876, of this court."

"IN THE MATTER OF EXCUSING TRIAL JURORS.

Now, it appearing to the court, that there is no more use for trial jurors at this term, it is ordered by the court that all trial jurors at this term be, and the same are hereby excused for the term. Louis Branson, Esq., excepts to said order on the part of Peter Larkin, the defendant, in the cause of the State of Nevada v. Peter Larkin."

Upon the same day an order was made requiring the county commissioners to provide a suitable room for the court to hold its meetings in.

The fact that a disastrous fire had occurred, destroying the court-house and so much of the city of Virginia as to render it impossible for the court to find a suitable room in which to meet, was, in our judgment, sufficient to authorize the court, in the exercise of its sound discretion, to make said orders. Recognizing the unsettled condition of affairs after such a fire, the members of the bar, with but one exception, consented to said orders being made, considering, as they doubtless did, that a public necessity existed therefor.

The cause which induced the court to make said orders was not, as is alleged in the petition, "for the personal convenience of the court." The orders were made in consequence of a great public calamity that had befallen the city, and in obedience to the wishes of the members of the bar, who were sufferers by the fire, and were evidently made to promote-not to hinder-the interests of public justice. The petitioner is not in a condition to complain. If he has endured hardships by being so long incarcerated in the county jail, it was by no oppressive act or fault of the district court; but was incident to his situation and to the