Central Trust Co. of California v. Holmes Min. Co.

• Decision Date: 30 September 1908
• Docket Number: 1,749.
• Citation: 97 P. 390,30 Nev. 437
• Parties: CENTRAL TRUST CO. OF CALIFORNIA v. HOLMES MINING CO. et al.
• Court: Nevada Supreme Court

97 P. 390

30 Nev. 437

CENTRAL TRUST CO. OF CALIFORNIA v. HOLMES MINING CO. et al.

No. 1,749.

Supreme Court of Nevada

September 30, 1908

Appeal from District Court, Ormsby County.

Action by the Central Trust Company of California against the Holmes Mining Company and others. From a judgment for plaintiff defendants appeal. Dismissed.

J. J Scrivner, S. C. Denson, and C. H. Belknap, for appellants.

W. E F. Deal, for respondent.

SWEENEY J.

This action is brought to obtain a judgment against the Holmes Mining Company, defendant, a California corporation, for the principal due on 127 bonds, of $1,000 each, and interest on the coupons attached to each of the bonds, and for attorney's fees, expenses of executing the trust created by the mortgage given to secure the bonds and coupons, and interest thereon and costs of suit, and for a decree foreclosing the mortgage and for sale of the mortgaged property to pay the judgment. This suit was brought in the district court of the First judicial district of the state of Nevada for Esmeralda county, and was regularly transferred to the district court of the same district for Ormsby county. The case was tried in said district court on the 2d day of January, 1906, and on the 2d day of May, 1906, was submitted on briefs to the district court for its decision. On the 7th day of June, 1906, the district court made its decision and rendered its judgment, adjudging and decreeing that judgment and decree of foreclosure be entered in favor of plaintiff with costs. This order was entered in the minutes and signed by the district judge on the 7th day of June, 1906, and the district judge on the same day filed his written decision in the case. On the 21st day of July, 1906, the court filed in the district court its finding of facts and conclusions of law, and on the 15th day of September, 1906, the judgment and decree appealed from was entered by the clerk of the district court. The attorneys for the parties made and filed in the district court a stipulation agreeing that the judgment roll and findings of facts and conclusions of law signed by the judge of the district court, and filed on the 21st day of July, 1906, shall constitute the record upon any appeal thereafter taken from the final judgment by the appellants, and that the same findings of facts and conclusions of law shall be considered by the Supreme Court of the state of Nevada, with the same force and effect, as if the same were embodied in a bill of exceptions or statement on appeal. There was no statement on appeal filed in the district court, nor was there any bill of exceptions or assignments of error filed in that court. On the 14th day of September, 1907, this appeal was taken from said judgment and decree rendered.

Before the argument of this case on its merits, both orally and by elaborate briefs filed in support of the contentions of respective counsel, a motion to dismiss the appeal was filed by respondent upon the ground "that said appeal was not taken within one year after the judgment appealed from was rendered, but was taken more than one year after said judgment was rendered." This motion was heard and argued prior to the argument of the case on its merits, which latter argument must necessarily be subject to the conclusion reached on the motion to dismiss the appeal, as it raises the jurisdictional question whether or not this court has jurisdiction of the appeal. It appears that the judgment was rendered in the district court on the 7th day of June, 1906, when the order for judgment was made and entered by the clerk in the minutes of the court, and the written decision of the judge was filed. It is provided in Section 3425 of the Compiled Laws that "an appeal may be taken *** from a final judgment in an action, or special proceedings commenced in the court in which the judgment is rendered, within one year after the rendition of judgment ***"; and by section 3426 it is also provided that "an appeal shall be made by filing with the clerk of the court, with whom the judgment or order appealed from is entered, a notice, stating the appeal from the same, or some specific part thereof, and serving a copy of the notice upon the adverse party or his attorney." It will be observed that the statute requires an appeal from a final judgment to be taken within one year after the judgment is rendered, and not one year after the judgment is entered by the clerk. The record discloses herein that this attempted appeal was not only not taken within one year after the judgment was rendered and decision filed, but was taken more than a year after the findings of fact and conclusions of law were filed in the district court. The judgment was rendered on June 7, 1906, and the appeal was not take until September 14, 1907, more than one year and three months after the rendition of the judgment.

It is contended by counsel for appellants that the...