City of Fallon v. Churchill County Bank Mortg. Corporation
| Decision Date | 04 February 1936 |
| Docket Number | 3114. |
| Citation | 54 P.2d 273,57 Nev. 1 |
| Parties | CITY OF FALLON v. CHURCHILL COUNTY BANK MORTG. CORPORATION. |
| Court | Nevada Supreme Court |
Appeal from District Court, Churchill County, First District; Clark J. Guild, Judge.
Action by the City of Fallon against the Churchill County Bank Mortgage Corporation. From an adverse judgment, plaintiff appeals. On plaintiff's motion for an order extending the time in which to file and serve a bill of exceptions, and a counter motion of defendant to dismiss the appeal.
Order in accordance with opinion.
Eli Cann, of Fallon, for appellant.
George J. Kenny, of Fallon, and H. R. Cooke, of Reno, for respondent.
This is the third time this matter has been before us; the first time on a motion to strike the bill of exceptions the second time on a motion for an order granting leave to appellant to file a copy of the judgment roll and now on a motion of appellant for an order extending the time in which to file and serve a bill of exceptions, and a counter motion of respondent to dismiss the appeal.
Counsel for appellant has filed in this matter, in support of this application, an affidavit and a supplemental affidavit, from which it appears that the tendered bill of exceptions was, on April 15, 1935, deposited in the office of the clerk of the trial court, and immediately thereafter a copy was served upon counsel for the respondent. It appears from a certificate of the trial judge that the tendered bill of exceptions was duly settled by the trial judge on April 22 1935, but it does not appear from the bill of exceptions itself that it was filed in the lower court. This failure may be due to an oversight on the part of the clerk of the trial court. If this be true, an opportunity should be given to rectify the oversight.
To constitute filing it is not necessary that the clerk make the notation of filing, for all that a litigant can do in the matter of filing a document is to deposit it with the proper official and pay or tender the fee therefor, if there be any. Hook v. Fenner, 18 Colo. 283, 32 P. 614, 36 Am.St.Rep. 277; Hilts v. Hilts, 43 Or. 162, 72 P 697; Wilkinson v. Elliott, 43 Kan. 590, 23 P. 614, 19 Am.St.Rep. 158; President, etc., Manhattan Co. v. Laimbeer, 108 N.Y. 578, 15 N.E. 712; Beebe v. Morrell, 76 Mich. 114, 42 N.W. 119, 15 Am.St.Rep. 288; 25 C.J. 1126.
We do not know what the practice is, but we have understood that there is no fee chargeable for filing a bill of exceptions.
This court has repeatedly held that it is reluctant to dispose of a case except upon the merits. Appellant makes a strong showing to the effect that there was no neglect in filing and serving the bill of exceptions, but purely an oversight on the...
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State ex rel. Department of Highways v. Pinson
...court. Respondent cites 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 ......
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...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 deposited with the clerk on April 15, 1935 and was settled by the judge ......
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City of Fallon v. Churchill County Bank Mortg. Corporation
...the clerk of the trial court for amendment. Both of the motions are in pursuance of our opinion and order made herein on February 4, 1936. 54 P.2d 273. motions are supported by the affidavit of counsel for appellant, wherein he states that the bill of exceptions was deposited with the clerk......