Blouin v. Blouin

Decision Date17 May 1949
Docket Number3553.
Citation206 P.2d 608,66 Nev. 137
PartiesBLOUIN v. BLOUIN.
CourtNevada Supreme Court

Appeal from First Judicial District Court, Ormsby County; Clark J Guild, Judge.

Divorce action by Emile G. Blouin, Jr., against Janette R. Blouin. From judgment granting divorce, from order denying motion to vacate decree, from order denying new trial and from order denying motion for allowances, the defendant appeals. On several motions by each of the parties.

Order in accordance with opinion.

George E. McKernon, of Reno, and Clarence M Hawkins, of Auburn, California, for appellant.

Frank B. Gregory and W. E. Baldy, both of Carson City, for respondent.

BADT Justice.

Several motions were duly noticed, argued and submitted to the court. They include (1) respondent's motion to strike certain papers from the files, (2) respondent's motion to dismiss the appeal from the judgment, (3) respondent's motion to dismiss the appeal from the order denying appellant's motion to vacate and set aside the decree, (4) respondent's motion to dismiss the appeal from the order denying motion for new trial, (5) respondent's motion to dismiss the appeal from order denying defendant's motion for allowances, and (6) appellant's motion for allowances by way of costs, attorney fees and alimony pending the appeal.

The appeal are: (1) from a judgment granting respondent a divorce January 29, 1948; (2) from order denying motion to vacate the decree, made July 29, 1948; (3) from order denying new trial made March 3, 1948; and (4) from an unidentified order denying a motion for allowances.

Motion to Strike.

The motion to strike is directed to the following papers:

Notice of Motion and Motion For Leave to Amend Complaint to Conform to Proof.

Affidavit in Support of Motion to Amend Complaint.

Order Granting Leave to File Amendment to Complaint to Conform to Proof.

All Minute Orders (Except Order Overruling Demurrer).

Defendant's Exhibit 'B' With Clerk's Certificate attached Thereto.

Defendant's Exhibit 'A'.

Conclusions of Law.

Notice of Motion and Motion for New Trial.

Letter Dated February 20, 1948 addressed to Frank Gregory.

Affidavit of Mailing Certified Copy of Notice of Denial of Motion for New Trial.

Notice of Denial of Motion for New Trial.

Notice of Motion and Motion to Vacate and Set Aside Decree and Order Denying Motion for New Trial.

Affidavit of Janette R. Blouin.

Notice of Motion to Set Aside Decree.

Notice of Appeal.

Amended Notice of Appeal.

Affidavit of Service by Mailing.

Stipulation.

Order Extending Time to File Transcript of Hearing.

All of these instruments are embodied in a group of papers without title other than that indicated in the index thereto, which is 'Index of Clerk's Record.' The papers are all certified to by the clerk of the district court as being true copies of the originals there filed. None of these papers comprises a part of the judgment roll as defined by § 8829, N.C.L. They are not pleadings as defined in § 8593, N.C.L. This 'Clerk's Record' was not settled by the court or by stipulation as comprising a bill of exceptions. It does not purport to comply with the requirements of § 9385.81, N.C.L. or the sections following, or with the rules of this court. [1] In oral argument counsel for appellant stated that appellant does not claim to have a settled bill of exceptions but that his record (1) in any event contains the papers comprising case and, on certiorari, annulled an order the judgment roll, and (2) that this court can consider whatever records it desires to consider on the several appeals. It is true that the record referred to contains certified copies of instruments which are made by statute a part of the judgment roll, and respondent's motion does not go to such instruments.

As to the asserted right of this court to consider whatever papers it may desire to consider, such has never been the position taken by this court. We have consistently held that, in addition to the judgment roll, this court will consider only such papers as incorporated in a duly settled bill of exceptions, subject to the right to amplify and complete such record under certain circumstances. Brearley v. Arobio, 54 Nev. 382, 12 P.2d 339, 19 P.2d 432; McGill v. Lewis, 61 Nev. 28, 111 P.2d 537, 116 P.2d 581, 118 P.2d 702; Roberts v. Roberts, 63 Nev. 459, 174 P.2d 611; Sullivan v. Nevada Industrial Commission, 54 Nev. 301, 14 P.2d 262; Nevada Desert Inn v. Burke, 64 Nev. 504, 185 P.2d 1005; Garred v. Garred, 51 Nev. 335, 275 P. 2.

It is asserted however that we may consider these appeals upon the reporter's transcript of the testimony and proceedings. The transcript filed herein on September 20, 1948 purports however, according to the reporter's certificate, to be only a transcript of the proceedings on the motion to vacate the decree and the motion for new trial July 29, 1948. This transcript embodies in turn a transcript certified by the court reporter to be a transcript of the proceedings had at the trial January 29, 1948, but contains the notation '(Note: The following testimony merely covers residence, and was requested to be transcribed.)' Such fragmentary transcript is by no means the transcript contemplated by N.C.L. § 9385.81(1). Nor can appellant save the situation by the contention that the fragmentary transcript covering 'residence' shows that the court did not have jurisdiction over the parties. A court reporter's conclusion that a fragment of a transcript covers all the testimony or proceedings on a given subject matter cannot be substituted for the statutory requirement for the judge's certificate or the parties' stipulation. We are left no alternative but to grant the motion to strike. (So far as this applies to the Notice of Appeal and Amended Notice of Appeal, these instruments appear separately in the file.)

Motion to Dismiss Appeal from Order Denying Motion to Vacate and Set Aside Decree.

Motion to Dismiss Appeal from Order Denying New Trial.

Motion to Dismiss Appeal from Order Denying Motion for Allowances.

Without support of any kind in the record, these appeals must be dismissed and the motions granted. Indeed appellant filed herein on September 20, 1948 an 'Assignment of Errors.' With the exception of assignment No. 1, which is to the effect that the amended complaint does not state a cause of action, and assignment No. 14 (which is virtually the same as assignment No. 1) that the court erred in overruling the demurrer to the amended complaint, all of the sixteen assignments of error could be considered only in connection with a duly settled bill of exceptions. Appellant concedes, nay insists, that the errors assigned are not discernible from the judgment roll and can be presented only by examination of the documents and proceedings attempted to be filed herein as a bill of exceptions or record on appeal. This is undoubtedly so, but it does not help appellant. See cases cited supra and the many other decisions of this court therein cited.

Appellant refers to the often expressed disposition of this court to dispose of appeals on their merits. We still adhere to that policy whenever possible, but the state of the record in this case leaves no room for the exercise of our discretion. McGill...

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4 cases
  • Graff v. Shipman Bros. Transfer Co.
    • United States
    • Supreme Court of Nevada
    • September 27, 1950
    ...P.2d 128; Comstock Phoenix Mining Co. v. Lazzeri, 55 Nev. 421, 36 P.2d 360; Dillon v. Dillon, 67 Nev. ----, 220 P.2d 213; Blouin v. Blouin, 66 Nev. ----, 206 P.2d 608. It is clearly obvious that appellant, in line 31 on page 2, to and including line 5 on page 3, of 'Surviving Appellant's Po......
  • Dillon v. Dillon
    • United States
    • Supreme Court of Nevada
    • July 5, 1950
    ...Craig v. Harrah, Nev., 195 P.2d 688, 201 P.2d 1081; McGill v. Lewis, 61 Nev. 28, 111 P.2d 537, 116 P.2d 581, 118 P.2d 702; Blouin v. Blouin, Nev., 206 P.2d 608; and the cases therein referred The record being then bare of support of the appeal from the order denying the motion for new trial......
  • Blouin v. Blouin
    • United States
    • Supreme Court of Nevada
    • May 12, 1950
    ...orders heretofore made by this court striking numerous documents from the record as not embodied in a settled bill of exceptions, 66 Nev. ----, 206 P.2d 608, the appeal is before us on the judgment roll alone and is restricted to the point discussed. Perhaps unfortunately, the merits of the......
  • Plunkett v. Plunkett, 3826
    • United States
    • Supreme Court of Nevada
    • December 8, 1954
    ...these items has already been met and, as a motion of this nature may be allowed only prospectively, the same is denied. Blouin v. Blouin, 66 Nev. 137, 143, 206 P.2d 608. As to counsel fees, the preparation of the record on appeal has been completed, the opening brief on the merits has been ......

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