Burbank v. Rivers

• Citation: 18 P. 753,20 Nev. 159
• Decision Date: 06 July 1888
• Docket Number: 12,691.
• Parties: BURBANK v. RIVERS.
• Court: Supreme Court of Nevada

18 P. 753

20 Nev. 159

BURBANK v. RIVERS.

No. 12,691.

Supreme Court of Nevada

July 6, 1888

Appeal from district court, Washoe county; R. R. BIGELOW, Judge.

Action by Silas E. Burbank against Frank Rivers. Order overruling defendant's motion for a new trial, and he brings this appeal.

A. C Ellis and J. R. Judge, for appellant.

W. E F. Deal, for respondent.

HAWLEY J.

The title of this cause in the district court was Silas E Burbank, Contestant, v. Frank Rivers, Contestee. The case was tried before Hon. WILLIAM M. BOARDMAN, D. J. Judgment therein was rendered in favor of respondent. Upon an appeal taken therefrom the judgment of the district court was affirmed. Burbank v. Rivers, 20 Nev.81, 16 P. 431. Thereafter appellant moved the district court, Hon. R. R. BIGELOW presiding as district judge, to decide his motion for a new trial which had previously been submitted to Judge BOARDMAN. In the mean time respondent moved the court to correct the mistakes made by the clerk in entering an order made by Judge BOARDMAN denying appellant's motion for a new trial. These motions were heard and considered by the court at the same time. This appeal is taken from the order made in said cause which was entered in the minutes of the district court "on the 30th day of January, 1888, as of the 8th day of October, 1886," denying appellant's motion for a new trial of said cause. The record on appeal from this order is as follows: "It appearing to the satisfaction of this court from the records of this court in this action, as well as from other records of this court, and also from the affidavits on file herein, and from the testimony of Hon. WILLIAM M. BOARDMAN, late judge of this court, and from the testimony of Thomas V. Julien, clerk of this court, that the district court of the Seventh judicial district of the state of Nevada, in and for the county of Washoe, on the 8th day of October, 1886, made an order denying the motion of Frank Rivers, contestee in said action, for a new trial therein, which motion had been before that date submitted to said court for its decision upon stipulation of counsel for the parties therein without argument; and that the clerk of said court by mistake in entering said order in the minutes of the court wrote the name of Frank Rivers, contestee in said action, 'Henry Rives,' in the title of said action, and in the body of said order, said clerk, by mistake, wrote the name of said contestee, 'Henry Rivers,' and 'Henry Rives,' instead of Frank Rivers: it is therefore ordered that said minutes of said court of October 8, 1886, be, and the same are hereby, ordered to be corrected, and are hereby corrected, so as to conform to the truth, and to the order and decision of said court made on the 8th day of October, 1886, and so as to read as follows: '[Title of court.] Silas E. Burbank, Contestant, v. Frank Rivers, Contestee. The motion of Frank Rivers, the contestee herein, for a new trial, having been heretofore submitted to the court for decision by stipulation of counsel, without argument, and the court being fully advised in the premises, it is ordered that the motion of the said Frank Rivers, contestee herein, for a new trial of this cause, be, and the same is, overruled and denied. WM. M. BOARDMAN, District Judge.' It is further ordered that the order, as above corrected and set forth, be entered as of the 8th day of October, 1886, when said order was in fact made. It is further ordered that the motion of said Frank Rivers, asking this court to decide the said motion for a new trial, be, and the same is hereby, denied; as it appears from the record that said motion was denied by this court on the 8th day of October, 1886. R. R. BIGELOW, District Judge. January 30, 1888."

The facts which were presented to Judge BIGELOW by the other records of the court, the affidavits on file, and the testimony of Hon. WILLIAM...