Chance v. Arcularius

• Decision Date: 08 November 1951
• Docket Number: No. 3637,3637
• Citation: 237 P.2d 204,68 Nev. 51
• Parties: CHANCE et al. v. ARCULARIUS.
• Court: Nevada Supreme Court

Page 204

237 P.2d 204

68 Nev. 51

CHANCE et al. v. ARCULARIUS.

No. 3637.

Supreme Court of Nevada.

Nov. 8, 1951.

Carville & Carville, Reno, Wm. J. Crowell, Tonopah, for appellant.

Gray & Horton, Ely, for respondent.

BADT, Chief Justice.

We heretofore dismissed the appeal from the order denying appellants' motion for a new trial, such appeal being ineffective for want of filing of an undertaking. Chance v. Arcularius, Nev., 227 P.2d 198. However, we denied respondent's motion to strike the transcript of the proceedings following the action of this court in Magee v. Whitacre, 60 Nev. 202, 96 P.2d 201, 106 P.2d 751, in which it was said that respondents might present in their briefs on the merits reasons why this court could not consider the bill of exceptions on the appeal from the judgment. In refusing to strike the transcript however, we stated: 'With the dismissal of the appeal from the order denying new trial, we cannot say at this time just what use appellants will make of the two volumes comprising the bill of exceptions,' (Volume II being the transcript of proceedings). Thus we have before us in any event an appeal from the judgment alone in which we may consider such errors as appear from the judgment roll. Appellants contend however that inasmuch as the transcript of the proceedings has not been stricken the court may and should consider the same, not for the purpose of determining the sufficiency of the evidence to support the findings and judgment, but to determine whether there is any evidence in support thereof. In support of this contention appellants rely upon Sweet v. Sweet, 49 Nev. 254, 243 P. 817, in which case appellant did not perfect her appeal from the order denying new trial and the appeal was only from the judgment. This court there said: 'We agree with counsel for respondent to this extent--that we cannot consider the sufficiency of the evidence, because the appeal is from the judgment, and not from the order overruling the defendant's motion for new trial. We are of opinion, however, that, upon exceptions to a judgment, and upon appeal therefrom, we can examine the evidence to determine the legal question whether there is any evidence to support the judgment.' No authority was cited in support of this statement and no reason given for announcing such rule of law. After making the statement, the court proceeded to a discussion of the pleadings and the questions of law involved and the conclusion reached, and then states: 'We have examined the evidence to determine whether there is any legal evidence to support the judgment, and, being of opinion that there is, the judgment is affirmed.'

Despite this rather summary recognition and disposition of the point and the lack of authority or reason for the stated rule, appellant insists that the rule was thereafter approved in Re Benson's Estate, 62 Nev. 376, 151 P.2d 762, 763. This court there said: 'It is stated in appellant's closing brief that on appeal from a judgment, even if the sufficiency of the evidence cannot be considered where there has been no motion for a new trial, this court can nevertheless determine whether there is any evidence to support the judgment. It was so stated in Sweet v. Sweet, 49 Nev. 254, 258, 243 P. 817.' Again this court cited no other authority nor did it give any reason in support of such rule. However, despite this apparent lack of enthusiasm in referring to the Sweet case, the court did proceed to examine the evidence, to the extent of quoting five questions and answers, and concluded: 'There was some evidence, at least, to support this finding, and in the absence of a motion for a new trial this court will not consider the question of its sufficiency.'

The rule of the Sweet case was again advanced in Richards v. Steele, 60 Nev. 66, 99 P.2d 641, 643, 100 P.2d 72, and the court, on the appeal from the judgment alone, said, citing the Sweet case: * * * we can therefore examine the evidence to determine the legal question whether there was any evidence to support the judgment.' It recites the appellant's contention 'that there was no evidence' to justify the decision and 'a total failure of proof'. The court then discusses the pleadings and points to a single item of proof--a deposit of $2400 in postal savings account so as to place it in the infant's exclusive control as constituting some substantial evidence of a gift. On rehearing, 60 Nev. 72, 100 P.2d 72, 73, the court again refers to the Sweet case and says that the sole question before the court was 'whether there was any substantial showing to support the judgment'.

The Sweet case was again cited in Monitor Pipe & Steel Co. v. Flanigan Warehouse Co., 63 Nev. 449, 172 P.2d 846, 847. No motion for a new trial had been made, but the parties stipulated to a bill of exceptions and record on appeal, including pleadings, evidence, a deposition, etc. Respondent moved to strike the same, but the court held that its contentions could be batter considered on the appeal on the merits. The court there referred to appellant's contentions as follows: 'Appellant does not question the well settled rule that when there has been no motion for a new trial, the supreme court will not inquire into the sufficiency of the evidence to support the trial court's findings. He expressly admits that he is in no position to question its sufficiency on this appeal. He does maintain, however, that on appeal from the judgment alone this court may examine the evidence to determine the legal question whether there is a total failure of proof to support the judgment. In support of this contention he cites [Sweet v. Sweet, Richards v. Steele and Benson's Estate].' There appears no word of approval of the rule itself.

In 1935, Stats.1935, Chap. 90, p. 195, the legislature passed a new act regulating new trials and appeals, and in 1937 again passed an entirely new act regulating such proceedings, repealing all acts in conflict but reenacting many of the sections of the 1935 act. Stats.1937, Chap. 32, p. 53.

In Neill v. Mikulich, 57 Nev. 307, 64 P.2d 612, 614, under an appeal from the judgment, it was insisted that the 1935 amendments permitted the court to consider the insufficiency of the evidence. The point was not narrowed to the question of total lack of evidence, but the holding of the court is nonetheless significant. The court held that the rule had not been changed by the 1935 statute and that the only way the court could consider the sufficiency of the evidence, rulings upon instructions etc., was 'for the aggrieved party to make his motion for a new trial and to appeal from an adverse ruling.' The significance of the case concerns its consideration by the court in Snyder v. Garrett, 61 Nev. 85, 115 P.2d 769, 771. This opinion involved the 1937 New Trials and Appeals Act, and the appellant, appealing from the judgment alone without moving for a new trial, insisted that the sufficiency of the evidence could be considered on such appeal under the provisions of the 1937 act. With Taber, J., dissenting, the court reviewed the new act, the old sections reenacted, the significance of the omission of other sections, quoted the foregoing language from Neill v. Mikulich, referred to the recognized practice before this court from earliest times and emphasized the reason for the rule, namely 'that the trial court may first have an opportunity to rectify an error, if one was made, without subjecting the parties to the expense and annoyance of an appeal.' The court said it was not reasonable to believe the legislature intended such a radical change in the practice existing for almost three quarters of a century without resorting to explicit language to denote its intention.

The rule stated in Sweet v. Sweet that even in the absence of an appeal from an order denying new trial and even in the absence of a motion for new trial, the court may nevertheless consider the transcript to determine whether there is any evidence to support the findings, has not, so far as we have been able to discover, been approved by any other court having similar statutory provisions. We are not here concerned with that exception to the 'substantial evidence rule' which permits consideration, on appeal from an order denying new trial, of the assertion that there is no substantial conflict in the evidence upon any material point and that the decision is against such evidence upon such point, or where the decision is manifestly and palpably contrary to the evidence, Kitselman v. Rautzahn, Nev., 232 P.2d 1008, and cases therein cited, or the assignment that, upon all the evidence, it is clear that a wrong contention has been reached. Consolazio v. Summerfield, 54 Nev. 176, 10 P.2d 629.

We are satisfied that the rule in Sweet v. Sweet is not sound, that it is contrary to the recognized practice in this state since our earliest opinions, that it tends only further to confuse the situation where there is no appeal from an order denying a new trial, and that to all intents and purposes it nullifies the main rule that the sufficiency of the evidence cannot be considered on an appeal from the judgment alone. If, upon a simple assertion by the appellant that there is no evidence to support the findings, he is entitled to refer to the entire transcript of the evidence, the next step is to insist upon his right to show that there is no competent evidence to sustain the findings, or, though the evidence be concededly competent, that it was neither relevant nor material, that it was unworthy of belief, that its effect was destroyed by admissions made by witnesses on cross-examination, that it was entirely rebutted by other evidence. If these be the natural consequences of the rule in Sweet v. Sweet, and we think they are, then we have done away with the main rule to which the no evidence rule is something in the way of an exception. The reason for such main rule as quoted above applies a fortiori to a...