Brooks v. Nevada Nickel Syndicate

• Decision Date: 28 June 1898
• Docket Number: 1,521.
• Parties: BROOKS v. NEVADA NICKEL SYNDICATE, Limited, et al.
• Court: Nevada Supreme Court

53 P. 597

24 Nev. 311

BROOKS v. NEVADA NICKEL SYNDICATE, Limited, et al.

No. 1,521.

Supreme Court of Nevada

June 28, 1898

Appeal from district court, Ormsby county; C. E. Mack, Judge.

Action by Charles E. Brooks against the Nevada Nickel Syndicate Limited, and another. From a judgment for plaintiff, the Nevada Nickel Syndicate appeals. Reversed.

W. E F. Deal, for appellant.

George W. Baker, for respondent.

MASSEY J.

This action was instituted by the respondent, a stockholder, for the benefit of all the stockholders of the National Nickel Company, a corporation organized and existing under the laws of the state of Illinois, against the appellant, a corporation organized and existing under the laws of the state of Illinois, against the appellant, a corporation organized and existing under the laws of the kingdom of Great Britain, for the purpose of setting aside a certain alleged conveyance made by the president and secretary of the National Nickel Company to the appellant of certain mining claims in Churchill county, Nev., which conveyance is alleged to have been made without authority. The National Nickel Company was made a party defendant to the action, but is not a party to this appeal. Summons was issued on the 2d day of October, 1896; delivered to the sheriff of Ormsby county Nev., on the 3d day of October, 1896; and returned by him on the same day, with a certificate of service, to the effect that he had served the same on the defendants by personally delivering a true copy of the same, attached to a copy of the complaint, to Eugene Howell, secretary of state, at Ormsby county,--the defendants having no agents in the state, upon whom service could be made, who could be found in the said county. No appearance having been made, the default of the appellant was entered on the 17th day of November, 1896; and on the 16th day of December, 1896, decree was made as prayed for. On the 15th day of December, 1897, this appeal was taken from the judgment and decree. The respondent, upon a showing that before this appeal had been taken the appellant had appeared in the lower court, and asked that the judgment be vacated for certain specified reasons, and that subsequently on January 3, 1897, the district court had sustained appellant's motion, and made an order vacating and annulling the judgment, from which order the respondent had appealed, asks us to dismiss this appeal. At the time the appeal was taken, a judgment was standing against the appellant, and the motion to set aside the same was undetermined. Our statute confers the right of appeal from a final judgment upon any party aggrieved, within one year after the rendition thereof; and power is conferred upon the district courts, under certain restrictions. to set aside and vacate judgments. The right of appeal can be exercised at any time within the statutory limitation before the judgment is set aside or vacated by the district court. The appellant can, under our practice act, appeal from the judgment, and prosecute such appeal in the appellate court, and at the same time prosecute a motion to vacate and set aside the judgment in the district court. These are separate remedies, under the law; and the appellant may for one reason ask the court to vacate a judgment, and for an entirely different reason ask the appellate court to reverse or modify the same. If an appeal from the judgment operates as a vacation or suspension of the same, then such course would not be proper; but that the legislature intended the contrary is evident from those sections of the civil practice act regulating the method of stay of execution of judgment after appeal therefrom. Gen. St. 1885, §§ 3364-3367; Rogers v. Hatch, 8 Nev. 35. Questions analogous to the one under consideration have been decided by other courts under similar statutes regulating appeals from judgments, and proceedings and appeals from orders granting or denying new trials. The supreme court of California has held that the two modes of appeal are independent of each other, and that an appeal from the judgment does not depend upon a motion for a new trial, and may be taken without waiting for the determination of a motion for a new trial, and that even an affirmance of a judgment upon a direct appeal therefrom does not prevent the court below from setting aside the verdict or the findings. Carpentier v. Williamson, 25 Cal. 168; Spanagel v. Dellinger, 38 Cal. 284; Towdy v. Ellis, 22 Cal. 659; McDonald v. McConkey, 27 Cal. 326; Rayner v. Jones, 90 Cal. 81, 27 P. 24; Naglee v. Spencer, 60 Cal. 10. This statutory rule is based upon sound reason. Should the appellant be required to await the determination of a motion to vacate the judgment, he might lose his right of appeal therefrom, by expiration of time in which such appeal could be taken, and thereby his right to have reviewed any errors appearing in the judgment roll. Upon the showing made, and for the reasons given, the motion to dismiss the appeal will be denied.

The first objection made to the validity of the judgment, based upon defects appearing in the judgment roll, is that no summons was ever issued in the action; that the paper purporting to be a summons is void, for the reason that it runs in the name of "The People of the State of Nevada." Section 13, art. 6, of the constitution requires that the style of all process shall be, "The State of Nevada." Is a summons issued under our law a process, within the meaning of the provision of said article? Under our practice act, which has been in force since 1869, provision is made for the issuance of summons, to be signed by the attorney for the plaintiff, or by the clerk, and, when issued by the clerk, requiring that it shall be under the seal of the court. The same act specifically defines the contents of the same. There is nothing in the act requiring the summons to run in any particular form. It has never been treated as a process within the meaning of our constitution, either by the legislature or the courts; and while there is conflict of authority upon a similar question, under constitutions and statutes similar to our own, in other states, we are disposed to hold that a summons is not a process, within the meaning of our constitution. Upon this point we quote from a decision of the supreme court of Colorado, in which it says: "As to the first point raised,--that the summons is such a process as may be issued in the name of the people of Colorado,--we are strongly inclined to follow the conclusion of the supreme court of Florida in Gilmer v. Bird, 15 Fla. 411. In this case the identical question here presented is discussed at some length,--that is, ' that the summons, as authorized by the Code, is a "pr...