Magee v. Lothrop

• Decision Date: 28 November 1939
• Docket Number: 3291.
• Parties: MAGEE et al. v. LOTHROP, County Treasurer (WALKER RIVER IRR. DIST., Intervener).
• Court: Nevada Supreme Court

96 P.2d 201

60 Nev. 202

MAGEE et al. v. LOTHROP, County Treasurer (WALKER RIVER IRR. DIST., Intervener).

No. 3291.

Supreme Court of Nevada

November 28, 1939

Appeal from First Judicial District Court, Lyon County; W. D Hatton, Judge.

Action by Harry H. Magee and others, for their own use and benefit and for the uses and benefit of all others similarly situated, against Ruel E. Lothrop, as Treasurer and ex officio Tax Receiver of Lyon County, Nevada, wherein the Walker River Irrigation District intervened. From an adverse judgment and from an order denying motion for new trial, the plaintiffs appeal. On motions of respondent and intervener to dismiss the appeals from the judgment and from the order and to strike certain portions of the record on appeal.

Motion to dismiss appeal from judgment denied, appeal from order denying motion for new trial dismissed, and motion to strike certain portions of the record on appeal granted in part.

George L. Sanford, of Carson City, for appellants.

W. M Kearney, of Reno, for Walker River Irr. Dist., intervener and respondent.

ORR Justice.

This case is before us on motions to dismiss the appeals from the judgment and from an order denying plaintiff's motion for a new trial, and to strike certain portions of the record on appeal.

The case was submitted to the trial court on briefs. Thereafter on the 14th day of April, 1938, the district court rendered a written decision, which was filed on the 16th day of April, 1938. The notice of appeal from the judgment was signed September 23, 1938, and filed September 26, 1938.

Intervening defendant and respondent moves the dismissal of the appeal from the judgment, on the ground that it was not taken within six months after rendition of final judgment, as required by Section 9385.60, Comp.Laws, which reads, in part:

"An appeal may be taken:

1. From a final judgment in an action or proceeding commenced in the court in which the judgment is rendered, within six months after the rendition of the judgment."

The law of this state is settled that the six months time mentioned in the statute runs from the rendition of the decision of the court, not from the time of the filing of the formal findings and formal judgment. Central Trust Co. v. Holmes Mining Co., 30 Nev. 437, 97 P. 390; Mellan v. Messenger, 48 Nev. 235, 228 P. 1095; Ex Parte Breckenridge, 34 Nev. 275, 280, 118 P. 687, Ann.Cas.1914D, 871; Coleman v. Moore & McIntosh, 49 Nev. 139, 241 P. 217; First National Bank v. Fallon et al., 55 Nev. 102, 26 P.2d 232.

If the decision filed by the court on April 16, 1938, constitutes a final judgment, then the attempted appeal taken therefrom was too late, being more than six months after its rendition.

Appellants urge that the said decision of the trial court did not constitute a final judgment, in that it left something to be done and for the future consideration of the court in order to fully dispose of the issues and rights of the parties. Appellants urge two propositions as not having been disposed of; first, that the trial court in its decision failed to determine the constitutionality of Section 29 1/2 of the Nevada Irrigation District Act, Sec. 8042, N.C.L.; and, secondly, that the trial court in said decision failed to determine the costs.

As to the first proposition we cannot agree with appellant. In our opinion that question was determined by the trial court adversely to the contention made by appellants in said court, and said court found said section constitutional.

As to the second proposition, the trial court did not make an order relative to the costs until the filing of the formal findings and formal judgment, on the 26th day of September, 1938, and no mention thereof was made in the decision of April 14, 1938. This is an action in equity, and is clearly one in which the court is vested with discretion in the assessment of costs, under Section 8927, N.C.L. The case of Perkins v. Sierra Nevada S. M. Co., 10 Nev. 405, 410, gives the following definition of a final judgment: "A judgment or decree is final that disposes of the issues presented in the case, determines the costs, and leaves nothing for the future consideration of the court." This definition is cited with approval by this Court in the case of Nevada First National Bank v. Lamb, 51 Nev. 162, 271 P. 691.

Reading the decision of the trial court in the light of the above definition, we find missing one of the essentials, namely, it fails to determine the costs; hence to that extent it is not final, and such determination not having been made until September 23, 1938, final judgment was not entered until said date, and appellants had six months therefrom in which to appeal. The appeal from the judgment was timely, and the motion to dismiss said appeal is denied.

In the motion of intervening defendant and respondent to dismiss the appeal from the order denying plaintiff's motion for a new trial, several grounds are urged. We need consider but one, namely that there was no undertaking given on said appeal. Under the law of this state where an appeal is taken from a judgment and from an order denying a motion for a new trial, but one undertaking in the sum of $300.00 need be given. However, said undertaking must refer to both appeals. The undertaking filed herein refers to the judgment rendered September 23, 1938, and makes no reference to the appeal from the order denying plaintiff's motion for a new trial. This exact question has been decided many times in the State of California, and the same rule has been established in North Dakota, Idaho and Montana. The rule as announced in California is stated in the case of Granger v Robinson, 114 Cal. 631, 46 P. 604. After affirming the rule that one undertaking may be given for both appeals, the court states: "It is, however, necessary that the undertaking shall refer to each of the appeals as distinctly as if they were from separate orders requiring an undertaking for each. If the undertaking recites merely the appeal from the judgment, the appeal from the order...