Bonelli v. Jones

• Decision Date: 27 June 1901
• Docket Number: 1,603.
• Parties: BONELLI v. JONES et al.
• Court: Nevada Supreme Court

65 P. 374

26 Nev. 176

BONELLI v. JONES et al.

No. 1,603.

Supreme Court of Nevada

June 27, 1901

Appeal from district court, Lincoln county; G. F. Talbot, Judge.

Action by B. F. Bonelli against T. J. Jones and another. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal. Appeal dismissed

Charles Cobb, T. M. Stewart, and T. J. Osborne, for appellants.

Sawyer & Sawyer, for respondent.

MASSEY C.J.

This appeal is taken from a judgment and an order. The respondent asks us to dismiss both appeals. The appellants confess the motion as to the appeal from the judgment, and resist the motion as to the appeal from the order. By the judgment the respondent was awarded 240 square inches, under 6-inch pressure, of the waters of the Muddy river, flowing through certain ditches therein named, for the purpose of irrigation. The appellants interposed a motion for a new trial, based upon a statement. On the 17th day of December, 1900, the court ordered "that if written consent to a modification of the judgment in this case so far as to limit and restrict the right and use of the plaintiff to 45 square inches of water, running under a six-inch pressure, between noon of the 1st day of July of each year and noon of the 1st day of February of the following year, is filed herein on behalf of the plaintiff within sixty days, then the motion for a new trial shall be deemed denied, but otherwise shall be granted." The appeal was taken from this order on the 9th day of January, 1901. On the 13th day of February, 1901 the respondent filed what is termed his "written consent" to the modification of the judgment as required by the order, in which he states that "in order to avoid the expense of a new trial, and without waiving any of his rights, but adhering to the same, consents to such modification, on the condition that no further proceedings shall be had in said case." The respondent claims that the appeal from this order was taken prematurely; that the order did not become effective as a denial of appellants' motion until the written consent of the modification was filed on the 13th day of February, 1901. While this court has refused to consider appeals taken prematurely, and dismissed the same, yet the showing made for and against the motion presents a new and peculiar question, which determines the appeal; and we therefore do not consider respondent's motion further than is...