City of Fallon v. Churchill County Bank Mortg. Corporation
| Decision Date | 07 July 1936 |
| Docket Number | 3114. |
| Citation | 59 P.2d 18,57 Nev. 1 |
| Parties | CITY OF FALLON v. CHURCHILL COUNTY BANK MORTGAGE CORPORATION. |
| Court | Nevada Supreme Court |
Appeal from District Court, Churchill County; Clark J. Guild, Judge.
Action by the City of Fallon against the Churchill County Bank Mortgage Corporation. From an adverse judgment, plaintiff appeals.
Affirmed.
Eli Cann, City Atty., of Fallon, for appellant.
Geo. J Kenny, of Fallon, and H. R. Cooke, of Reno, for respondent.
This matter is again before us on motion of respondent to strike the bill of exceptions. In an opinion heretofore filed [(Nev.) 56 P.2d 1211], we ordered that the bill of exceptions be remanded to the trial court for amendment and return to the clerk of this court. Pursuant to that order, it was indorsed as filed by the clerk of the trial court as of April 15, 1935. The motion now under consideration is based upon the ground that the final judgment appealed from was entered on March 11, 1935, whereas the bill of exceptions was not filed until after the time allowed therefor had expired.
Section 9398, N.C.L., fixes the time within which a bill of exceptions may be filed where the appeal is from a final judgment, as in this case, at "within twenty (20) days." The final judgment having been rendered on March 11, 1935, and the bill of exceptions not having been filed until April 15, 1935, it is clear that it was not filed within twenty days after the entry of the final judgment.
Section 9392, N.C.L., expressly provides that if a party shall omit or fail to serve and file his bill of exceptions within the time limited by law, he shall be deemed to have waived his right thereto. We so held in Nellis v. Johnson, et al., 53 P.2d 1192.
Counsel for appellant does not contend that a failure to file a bill of exceptions within the time fixed by law, if there be no order of court or stipulation of the parties extending the time, does not constitute a waiver, but contends there was a stipulation extending the time, and has offered his affidavit which he claims shows that there was a stipulation between himself and G. J. Kenny, Esq., the attorney for the respondent in the court below, and one of its attorneys here waiving the statutory requirement. Though counsel for appellant relies on three separate affidavits in support of his contention, we will refer to the one of November 12 1935, only, since the other two restate the same matter. The affidavit mentioned states that Mr. Kenny said to him "* * * You prepare your bill of exceptions and your brief and give me a copy of each; that I will then prepare my answering brief, and give you a copy of my brief; that you in turn will then prepare and give me a copy of your reply brief; that then we will send the bill of exceptions, and the briefs all together to the Supreme Court and let the Supreme Court pass on the legal questions presented in these briefs without oral argument."
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State ex rel. Department of Highways v. Pinson
...the case of City of Fallon v. Churchill County Bank Mortgage Corporation, 57 Nev. 1, 49 P.2d 358, 50 P.2d 944, 54 P.2d 273, 56 P.2d 1211, 59 P.2d 18, in which were four successive motions before the court. There was a distinct sequence of events in that case however whereunder the dispositi......
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Mikulich v. Carner
...We feel the the point has been determined by this court adversely to the contention of respondent in City of Fallon v. Churchill County Bank Mortgage Corporation, 57 Nev. 1, 11, 45 P.2d 358, 50 P.2d 944, 54 P.2d 273, 56 P.2d 1211, 59 P.2d 18. There the tendered bill of exceptions was deposi......
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... ... from Eighth Judicial District Court, Clark County; George E ... Marshall, Judge ... denied. City of Fallon v. Churchill County Bank Mortgage ... Corporation, 57 Nev. 8, 50 P.2d 944. We also direct ... ...