Brandon v. West

• Decision Date: 02 May 1906
• Docket Number: 1,681.
• Citation: 85 P. 449,29 Nev. 135
• Parties: BRANDON v. WEST et al.
• Court: Nevada Supreme Court

85 P. 449

29 Nev. 135

BRANDON v. WEST et al.

No. 1,681.

Supreme Court of Nevada

May 2, 1906

On petition for rehearing. Denied.

For former opinion, see 83 P. 327.

Fitzgerald C.J., dissenting.

TALBOT J.

The respondents petition for a rehearing in this action, or a modification of the order entered therein, on the following grounds: "That no appeal was ever taken from the judgment herein; that the only appeal which was taken was from the order denying plaintiff's motion for a new trial, and the jurisdiction of this court is limited to affirming or reversing that order; and that the order entered directing judgment for plaintiff is not warranted, even had an appeal been taken from the judgment. It is contended that the record on appeal does not contain the judgment roll, and consequently that there can be no appeal from the judgment. The notice states that the appeal is from the judgment, as well as the order denying the motion for a new trial. The undertaking on appeal is conditioned for the payment of costs on appeal from the judgment. The transcript is entitled "Statement on Motion for New Trial and Appeal." Copies of all the papers required under Comp. Laws, § 3300 to be embodied in the judgment roll, with the exception of the summons, are contained in the transcript. There was no motion made to dismiss the appeal from the judgment because of any alleged defect therein, nor was the sufficiency or regularity of the appeal questioned upon the presentation of the cause. The case was briefed, argued, and presented as though the appeal was entirely regular. Its sufficiency, therefore, cannot now be questioned upon petition for rehearing.

It is argued that this court, in any event, ought not to have directed that judgment be entered in favor of the appellant upon reversal of the judgment, but that all that was proper to be done under such circumstances, was the granting of a new trial, the rule being, "that where there is an issue upon material facts, which may possibly be decided in more than one way on another trial, there should be a new trial ordered on a reversal of the judgment." Upon the trial of this cause the respondents offered no evidence, they submitted the case upon the testimony offered by the plaintiff. The court ordered judgment in favor of defendants. Findings prepared by defendants' counsel, which negatived the allegations of plaintiff's complaint that there was a sale of the land described therein, were approved by the court. Counsel for the plaintiff moved to strike out the findings so allowed, and made request for certain other findings. Upon the hearing of this motion and request, the court made, among others, the additional finding relative to the sale of the sand to the plaintiff and the right or license to remove the same, in pursuance of which finding judgment was ordered by this court to be entered in favor of appellant. Counsel for respondents, though participating in this hearing, may not have been called upon to except to this finding, if objection were had thereto; but, in any event, no objection was made or exception taken. In plaintiff's assignments of error in his statement on motion for a new trial and appeal the point is twice made that it was error in the court not to give plaintiff judgment in accordance with this finding. Counsel for appellant in their opening brief take the...