Bottini v. Mongolo
| Decision Date | 12 May 1921 |
| Docket Number | 2496. |
| Citation | 197 P. 702,45 Nev. 245 |
| Parties | BOTTINI v. MONGOLO ET AL. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Edward F. Lunsford Judge.
Action by Giovanni Bottini against Louis Mongolo and others. Judgment for plaintiff, and order entered denying a new trial, and the defendants appeal, and plaintiff moves to dismiss appeal. Appeal dismissed.
Mack & Green, of Reno, for appellants.
Huskey & Kuklinski, of Reno, for respondent.
This is a motion upon behalf of respondent to dismiss an appeal from the judgment and order of the court denying appellants' motion for a new trial. The ground of the motion is that no transcript of the record on appeal has been filed within 30 days after the appeal had been perfected. It is also stated in the notice of motion to dismiss that the time for the settlement of the bill of exceptions has long since expired and that such time for filing the transcript of record has not been extended, either by stipulation of counsel or by order of court.
It appears from the certificate of the clerk of the district court, filed by the respondent in support of this motion, that on October 25, 1920, the court made the following order:
"The court, being fully advised in the premises, orders that the motion for a new trial on the injunctive relief sought is denied, but that, unless the plaintiff within 10 days hereafter, file in this court his written agreement and consent that the judgment and decree may be modified by striking therefrom the damages awarded to him in the sum of $1,000, a new trial will be granted on the question of damages."
On November 3, 1920, the court made this order:
"It appearing from the files and records in this case that the plaintiff's consent to the modification of the judgment in the above-entitled case has been filed, therefore it is ordered that the motion for a new trial be denied."
It also appears from the certificate that on December 9, 1920, a notice of appeal from the judgment and from the order denying the defendants' motion for a new trial was filed and served upon plaintiff's attorneys, and on the same day an undertaking on appeal was filed; that a bill of exceptions was filed on December 27, 1920; and on January 3, 1921, objections to the certification and settlement of the bill of exceptions were filed on the ground that the same was not presented in the time provided by statute, and that such time was neither extended by stipulation of counsel nor by order of court; that defendants have not requested the clerk to certify a correct transcript of the record. It also appears from a certified copy of the order of the court filed in this court on the hearing of the motion to dismiss on February 23, 1921, as follows:
"Motion and objections were argued by respective counsel, and the court, being fully advised in the premises, ordered that plaintiff's objection, that the court is without jurisdiction, be, and the same is hereby, sustained, and the court for reasons stated declines to take any action on the bill of exceptions."
It is admitted that counsel for appellants were in court on October 25, 1920, when the court denied the motion for a new trial as to the injunctive relief obtained by respondent, and ordered that, unless respondent within 10 days filed his consent to a modification of the judgment, striking the damages awarded, a new trial would be granted on the question of damages, and that they were not in court on November 3, 1920, when, on the filing of the consent to a modification, the court denied the motion for a new trial. It is also admitted that a copy of the consent to such modification was served on counsel for appellants. Further than is stated above, appellants' counsel received no notice of either of the orders of the trial court denying a new trial. They contend that they were entitled to notice of the order made on November 3, 1920, before the time to prepare, serve, and file the bill of exceptions could begin to run.
The rules of the Supreme Court which respondent invokes in support of his motion to dismiss are rule 2 (154 Pac. viii), which reads:
"The transcript of the record on appeal shall be filed within thirty (30) days after the appeal has been perfected and the statement settled, if there be one"
--and rule 3 (154 Pac. viii), which in part provides:
"If the transcript of the record be not filed within the time prescribed by rule 2, the appeal may be dismissed on motion without notice."
As stated, the appeal was perfected on December 9, 1920. In conformity with the rule, the appeal should be dismissed, unless appellants are entitled to have their bill of exceptions settled by the court. If it is their right to have the bill of exceptions settled, the time for filing the transcript of record on appeal would not begin to move until such settlement. Was the court in error in declining to settle the bill of exceptions?
Section 7 of the statutes of 1915,...
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Collier v. Bayer
...exists) is not at issue here. Finally, the Burbank case has not been cited by a Nevada state court since 1921. See Bottini v. Mongolo, 45 Nev. 245, 197 P. 702, 704 (1921). Nowhere is it cited in the State's briefing materials. The dissent's shaking the dust off a century old rule, not used ......
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Johnson v. Johnson
...The signing of the order is not included in the definition. The cases of Elsman v. Elsman, 54 Nev. 20, 2 P.2d 139, and Bottini v. Mongolo, 45 Nev. 245, 197 P. 702, discussed by appellant, are not in point. As appellant not appeal from the order denying the motion for a new trial within sixt......
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Mobil Oil Corp. v. First Western Savings Ass'n
...however, is not required. Mobil may also be charged with all facts which by proper inquiry it might have ascertained. Bottini v. Mongolo, 45 Nev. 245, 197 P. 702 (1921). First Western contends that Mobil's notice of a new lessor can be inferred from a series of exchanges between the parties......
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Bottini v. Mongolo
...to be entered its order dismissing the appeals taken from the judgment and order denying a new trial in this action. Bottini v. Mongolo et al., 45 Nev. 245, 197 P. 702. In passing upon the motion to dismiss the appeals it necessary for the court to review and to consider the order now appea......