Burbank v. Rivers

• Decision Date: 28 November 1887
• Docket Number: 1,269.
• Citation: 16 P. 430,20 Nev. 81
• Parties: BURBANK v. RIVERS.
• Court: Nevada Supreme Court

16 P. 430

20 Nev. 81

BURBANK v. RIVERS.

No. 1,269.

Supreme Court of Nevada

November 28, 1887

Appeal from district court, Washoe county; W. M. BOARDMAN, Judge.

A. C Ellis, for appellant.

W. E F. Deal, for respondent.

HAWLEY J.

Appellant and respondent made application to the land register of this state for the purchase of certain lands situate in Lyon county, and each claimed a preferred right to purchase the same, under the provisions of section 12 of the "Act to provide for the selection and sale of lands," (St. 1873 124.) The land register, in pursuance of the provisions of said act, certified the respective applications to the district court. The court appointed a commissioner to take the testimony, and, upon the coming in of the report of the testimony so taken, the court rendered a judgment in favor of respondent. This appeal is taken from the judgment alone, upon a statement containing all the evidence submitted by the respective parties. The ground relied upon for a reversal of the judgment is, "insufficiency of the evidence to justify the findings and decision of the court, and that it is against law." Specific assignments of errors are made to several of the findings, and a specification of the particulars in which the evidence is claimed to be insufficient is embodied in the statement. It is not in fact claimed that the findings do not support the judgment. The real question, which appellant seeks to have reviewed, is whether the evidence supports the findings of the court. There is no room for argument upon the proposition that the findings support the judgment. Respondent objects to any consideration of the statement for any purpose except to determine whether the judgment is supported by the findings of facts. He claims that the only mode by which the question of insufficiency of the evidence to justify the findings, etc., can be brought before this court for review, is by moving for a new trial in the court below, and, upon the refusal of that court to grant the motion, to appeal from such order. The authorities he cites from the supreme court of this and other states fully support the position which he maintains, that only in this way "can this court determine whether the judgments or other decisions of district courts are sustained by the evidence." Appellant admits that the general rule and practice recognized and enforced by this court, in construing the statute, (subdivision 6, § 195, of the civil practice act; Gen. St. 3217,) is substantially as stated by respondent, in all cases at law where the court below has had the opportunity of seeing, hearing, and examining the witnesses who have testified in the case; but he claims that the reason upon which the rule is founded--to the effect that, before the testimony can be reviewed by the appellate court, the lower court must have had an opportunity to review its own findings and decision, and to exercise its judgment and discretion, either by upholding or setting aside the findings, and thereby correcting its own errors, if any had been committed--has no application to cases in equity, to a proceeding like the case at bar, or to any case where the testimony is wholly documentary, and that in all such exceptional cases the general rule ought not to be strictly enforced.

Does the statute, by a fair and liberal construction, authorize or warrant any exception to the general rule above stated? Can this court, in the absence of any statutory provision creating any distinction in the method of taking appeals in the different character of cases, make any exception to the general rule? The contention of appellant that this case is sui generis, and not controlled by the provisions of the practice act, cannot be maintained. In Neil v. Wynecoop, which was a controversy between the parties to determine which had the preferred right to purchase lands under the provisions of section 12 of the act of 1871, (St. 1871, 138,) this question was presented, and decided adversely to the views contended for by appellant. WHITMAN, J., in delivering the opinion of the court, after quoting the provisions of section 12, said: "Under this section the case at bar was tried. The appellant here moved for a new trial. It is objected that his statement contains no specification of error.

To that it is answered that this case is sui generis, and the provisions of the general practice act inapplicable. Under the statutory language, there can be no doubt that this position is incorrect. Such cases, after a certain point, are to be tried and determined as ordinary actions. Of course, reference must be had to the practice act, to ascertain and determine how such actions are tried; and the governing rules, so far as applicable to the individual case, must be adopted. It by no means follows, because this action differs from ordinary actions in important respects, that it cannot in all others be governed by the rules of practice pertaining to such cases. In fact, the very appearance of appellant here is proof of this view. If not found in the rules of ordinary practice, whence comes his right to move for a new trial? The objection to the statement is sustained." 9 Nev. 47.

The method of taking appeals, and the questions to be considered thereunder by the appellate court, are matters purely of statutory regulation. Hayne, in his work on New Trials, stating the rule as declared by the supreme court of California upon a statute similar to ours, says: "The insufficiency of the evidence is the ground upon which the motion should be made, where it is claimed that the evidence given called for other findings or a different verdict than were made. It is not the judgment, but the verdict or decision of facts, against which the attack should be directed. It is inexact to say that the judgment is not supported by the evidence. The judgment rests upon the verdict or findings, and the verdict or findings upon the evidence. The judgment may be supported by the verdict or findings, which may be entirely unsupported by the evidence and vice versa. When a party considers that the judgment is not supported by the findings or verdict, his only course is to appeal from the judgment. When he desires to test the question whether the evidence supports the verdict or findings, his ordinary course is to move for a new trial under the sixth subdivision, on the ground of the insufficiency of the evidence, etc. *** In the early cases it was held that this rule did not apply to equity cases, in which it was said that the court could review the evidence without a motion for a new trial. But this doctrine was subsequently repudiated, and it was held that the rule applied to equity cases as well as to other actions." Hayne, New Trials, § 96; Gagliardo v. Hoberlin, 18 Cal. 396; Green v. Butler, 26 Cal. 599; Allen v. Fennon, 27 Cal. 69; Reed v. Bernal, 40 Cal. 630.

In Gagliardo v. Hoberlin, the court said: "It is true, in Dewey v. Bowman, 8 Cal. 145, it was held that in equity causes no motion for a new trial is necessary; but we...