Bowers v. Charleston Hill Nat. Mines, Inc.
| Decision Date | 06 January 1927 |
| Docket Number | 2754. |
| Citation | 251 P. 721,50 Nev. 99 |
| Parties | BOWERS v. CHARLESTON HILL NAT. MINES, Inc. |
| Court | Nevada Supreme Court |
Appeal from District Court, Humboldt County; L. O. Hawkins, Judge.
Action by F. R. Bowers against the Charleston Hill National Mines Inc. From the judgment, defendant appeals. On motions to dismiss appeal and affirm judgment. Motions denied, and counsel granted time for filing and serving briefs.
Thos A. Brandon, of Winnemucca, for appellant.
J. W Dignan, of Winnemucca, for respondent.
Respondent has submitted a motion, theretofore noticed, to dismiss the appeal for noncompliance with rule 2 of the rules of the Supreme Court. The rule reads:
"The transcript of the record on appeal shall be filed within 30 days after the appeal has been perfected and the bill of exceptions, if there be one, has been settled."
Respondent contends that no bill of exceptions was settled by the judge of the lower court, and that, consequently, the time limited by the rule commenced to run, when the appeal was perfected, and had expired some 30 days before the transcript of the record on appeal was filed.
Judgment was rendered in favor of respondent, and appellant made a motion to modify it. The motion was denied. From the judgment and order of the court refusing to modify it, this appeal is taken. The appeal was perfected on July 14, 1926, and the transcript of the record on appeal was filed with the clerk of this court on September 15, 1926. Appellant insists that there is a bill of exceptions in the record and that the delay in filing the transcript of the record on appeal was due to the action of respondent in filing objections in the lower court to the proposed bill of exceptions. The transcript of the record on appeal before us consists of a certified copy of the judgment roll, a transcript of the testimony and proceedings in the lower court certified by the court reporter, certified copies of the notice of motion to modify judgment, objections to findings and conclusions of law, and motion to amend the proposed findings, decision on motion to modify judgment, objections to findings, and conclusions of law, and motion to amend and modify proposed findings, and the appeal papers. This, in its entirety, was labeled "Proposed Bill of Exceptions," and was served on respondent and filed with the clerk of the district court on the 20th day of July, 1926. It was, thereafter, on August 21st, presented to the judge of the court for settlement. Respondent made written objections to the settlement of the same as a bill of exceptions, on the ground that the same had not been prepared, served, and filed within the time allowed by law, and also moved to strike the whole and certain parts thereof. The objections and motions were regularly heard by the trial court, and on September 9, 1926, its decision was made denying the right of the appellant to have any bill of exceptions settled upon the ground that the same was not prepared, served, and filed within the time allowed by law. Thereafter, on September 15, 1926, as previously stated, appellant filed the same in this court as the record on appeal.
Without passing upon the merits of appellant's excuse for the delay, we think that it is sufficient to say that respondent has not complied with rule 3, and is therefore in no position to invoke it. He has never presented or filed in this court a certificate of the clerk, as required by said rule 3. Consequently, the motion to dismiss is denied.
Respondent has also moved this court for an order striking from the transcript on appeal herein all papers, documents, and transcripts therein contained, except the judgment roll, the clerk's certificate thereto, the notice of appeal, and the bond on appeal, upon the ground that they are not properly authenticated in the manner provided by law, nor incorporated in any bill of exceptions, proposed, filed, or settled in the manner or within the time required by law. This motion must be granted, except as to the decision or order of the court refusing to modify the judgment. This certified by the clerk, and the certified copy of the judgment roll, and the appeal papers constitute the record on appeal, for the reason that there is no bill of exceptions either on appeal from the judgment or order refusing to modify it filed within the time required by law. The transcript of the testimony and proceedings certified by the court reporter which, under the provisions of section 1 of the Acts of 1923, pp. 163, 164, could have been filed as a bill of exceptions to have become such, no motion for a new trial having been made, must have been filed not later than 20 days after final judgment, unless the time therefor had been enlarged. No extension of time was made. Final judgment was rendered on May 20,...
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