Botsford v. Van Riper

• Decision Date: 22 January 1910
• Docket Number: 1,828.
• Citation: 106 P. 440,32 Nev. 214
• Parties: BOTSFORD v. VAN RIPER et al.
• Court: Nevada Supreme Court

106 P. 440

32 Nev. 214

BOTSFORD v. VAN RIPER et al.

No. 1,828.

Supreme Court of Nevada

January 22, 1910

Action by L. C. Van Riper and another against Charles H. Botsford and others. From the judgment rendered, defendant Botsford appeals. Heard on motion to dismiss appeal and to strike certain portions of the record. Motion to dismiss denied, and record as amended allowed to stand.

Rufus C. Thayer, C. L. Harwood, James F. Peck, Solinsky & Wehe, and Paul C. Morf, for appellant.

Detch & Carney, Thomas, Bryant & Malburn, R. G. Withers, Mack & Green, and Horatio Alling, for respondents.

SWEENEY J.

This is a motion to dismiss the appeal, and also subject thereto a motion to strike certain portions of the record. The record on appeal in this case was filed April 3, 1909. On April 17th following a stipulation, signed by respective counsel, was filed giving the appellant until May 5th in which to file their opening brief. On May 3d an additional stipulation was filed signed by respective counsel, extending the time until May 20th. On May 19th appellants filed their opening brief. On May 31st a stipulation was filed, signed by respective counsel, extending the time 30 days for respondents to file their brief in reply. On June 30th counsel for respondent requested and obtained the order of the Chief Justice extending counsel for respondent until August 2d to file their brief in reply. On July 2d a stipulation signed by respective counsel was filed extending time in conformity to the last-mentioned order of the Chief Justice. On July 17th counsel for respondent filed their motion to dismiss the appeal, and also said motion to strike portions of the record. On July 19th stipulation signed by respective counsel was filed, extending the time for respondents to file their reply brief to November 3d, and that the motions to dismiss and to strike might be set down for hearing before this court on September 20th. On July 24th counsel for appellant filed a notice of motion and affidavit on motion to correct the record, and upon said date obtained an order from the court shortening the time for the service of such notice. On the 30th day of July the said motion to correct the record came on for hearing before the court, and after argument by respective counsel the court made the following order:

"The motion of the appellant Charles H. Botsford to correct and supply certain errors and defects in the records on appeal herein coming this day regularly on to be heard before this court upon the notice of said motion, written motion and suggestion, and affidavit on motion, on file herein, and upon all the records on appeal herein, and the original papers filed herein as the records on appeal herein, and upon proof of due service of the notice of said motion on file herein, and C. L. Harwood and Paul C. Morf appearing as attorneys for the appellant, and Messrs. Detch & Carney and Messrs. Mack & Green appearing as attorneys for the respondents L. C. Van Riper and Joseph Hutchinson, and filing affidavits in opposition to said motion, and good cause appearing therefor, it is hereby ordered, that Joseph Hamilton, the clerk of the district court of the Seventh judicial district in and for the county of Esmeralda, state of Nevada, be, and he is hereby, directed: (1) To certify in the manner and form and as required by section 3862 of the Compiled Laws of the state of Nevada, the original papers in said district court in that certain action commenced therein, entitled 'L. C. Van Riper and Joseph H. Hutchinson, Plaintiffs, against Charles H. Botsford James Davis, J. P. Loftus, and James Davis, Doing Business under the Firm Name and Style of Loftus & Davis, Goldfield Mohawk Mines Company, Goldfield Consolidated Mines Company, Combination Mines Company, George S. Nixon, and George Wingfield, Defendants,' and now on appeal to this court; (2) to so certify and transmit to the clerk of this court the original amended answer filed by said defendant and appellant Charles H. Botsford to the complaint in said action in said district court, and the order of said district court overruling the demurrer of said Botsford to the said complaint, and the order of said district court overruling the motion of said Botsford for a new trial in said action, and, in case said orders of said district court, or either of them, are minute orders, and are of record in said action only in the minutes of said court containing entries affecting other cases in said court, to certify and transmit to the clerk of this court, in conformity with the provisions of sections 3862 and 3863 of the Compiled Laws, certified copies of said minutes containing said order or orders of said court; (3) to make up and attach together the judgment roll in said action, as required by section 3300 of the Compiled Laws, and to annex the same to the statement on appeal of the appellant Botsford herein, and also to annex thereto the demurrer filed by said Botsford to said complaint, and the order of said court overruling said demurrer, or a duly certified copy of the minutes of said court containing said order and the notice of appeal and undertaking on the appeal of said appellant Botsford from the final judgment in said action, and to number and index the said papers, and to certify them to be the original papers in said district court in said action, and to constitute the record on the said appeal to this court from said final judgment, and thereupon to transmit and return them to the clerk of this court, all as required by sections 3862 and 3863 of the Compiled Laws; (4) to annex the order of said district court overruling the motion for a new trial in said action of said defendant and appellant Botsford, or a duly certified copy of the minutes of said court containing said order, to the statement on motion for a new trial of said appellant Botsford herein, and also to annex thereto the the notice of appeal and undertaking on the appeal of said appellant Botsford from the said order of said court, and to number and index the said papers, and to certify them to be the original papers in said district court in said action, and to constitute the record on the said appeal to this court from said order overruling said motion for a new trial, and thereupon to transmit and return them to the clerk of this court, all in conformity with sections 3862 and 3863 of the Compiled Laws. And it is hereby further ordered, that said records on said appeals, or said original papers, be returned by the clerk of this court by express to the said clerk of said district court for the purpose of carrying out and executing this order, and performing the acts herein directed to be by him done or performed. And it is hereby further ordered that upon the certification and transmission of the said original papers and records on appeal by the clerk of said district court to the clerk of this court, as aforesaid, the said original papers and records on appeal, so returned or transmitted to the clerk of this court hereunder, shall be received, and retained by the clerk of this court as offered for filing, until the further order of this court herein. And it is hereby further ordered, that before the said records on appeal or original papers are expressed to said clerk of said district court, the clerk of this court shall file a complete list of all the said papers now on file in this court in the order in which they are now contained in said records on appeal, and that all of said papers constituting said records on appeal, including any and all papers now on file herein with the clerk of this court, including the clerk's certificate thereto, be and remain in the condition in which they now are, and be returned to the clerk of this court, as aforesaid. And it is further ordered, that all objections hereto, of respondents herein, be and the same hereby are, reserved for submission to and determination by this court until the hearing and determination of the motions of respondents to diminish the record and to dismiss said appeals now on file herein, and that all of said matters and motions be heard and determined together upon the hearing of said motions. Done in open court, at Carson City, Nevada, this 31st day of July, A. D. 1909."

Pursuant to this order the records were sent by the clerk of this court to the clerk of the court below, and such record was corrected subject to the conditions of the foregoing order, and the record returned to the clerk of this court for filing. Thereafter, on the 20th day of September, 1909, pursuant to agreement of respective counsel, the motions to dismiss and to strike came on for hearing. The questions presented by the several motions were orally argued, and time thereafter taken in which to file briefs. The questions of law presented upon these several motions, with the exception of the point raised by counsel for respondent that the undertaking on appeal was insufficient, are sufficiently indicated by the order above quoted. If the order is one which should be approved by this court, and the record as amended be directed to be filed as the correct record on appeal, then the motions to dismiss and to strike should, in the main, be denied, unless we find the objections to the sufficiency of the undertaking are well taken.

The application to amend the record is in conformity with the provisions of rule 7 (73 Pac. xiii) of this court, which reads: "For the purpose of correcting any error or defect in the transcript from the court...