City of Fallon v. Churchill County Bank Mortg. Corporation

• Decision Date: 05 November 1935
• Docket Number: 3114.
• Citation: 50 P.2d 944,57 Nev. 1
• Parties: CITY OF FALLON v. CHURCHILL COUNTY BANK MORTGAGE CORPORATION.
• Court: Nevada Supreme Court

50 P.2d 944

57 Nev. 1

CITY OF FALLON v. CHURCHILL COUNTY BANK MORTGAGE CORPORATION.

No. 3114.

Supreme Court of Nevada

November 5, 1935

Appeal from District Court, Churchill County; Clark J. Guild, Judge.

Action by the City of Fallon, a municipal corporation, against the Churchill County Bank Mortgage Corporation. From a judgment in favor of the defendant, plaintiff appeals. On motion to permit plaintiff to file certified copy of judgment roll.

Motion denied.

Eli Cann, City Atty., of Fallon, for appellant.

George J. Kenny, of Fallon, and H. R. Cooke, of Reno, for respondent.

COLEMAN, Justice.

This case is now before us on a motion, duly noticed, to permit appellant to file herein a certified copy of the judgment roll. Heretofore we ordered stricken from the files a purported bill of exceptions. On the hearing of the motion to strike the bill of exceptions, counsel for appellant tendered for filing a certified copy of the judgment roll. This was after the time allowed for the filing thereof had expired. Such tender was not based upon a motion duly noticed and supported by any showing whatever of excusable neglect. We refused to permit it to be filed. 56 Nev. ___, 49 P.2d 358.

The affidavit in support of the present motion sets forth why the purported bill of exceptions, ordered stricken, was not filed as provided by law. No fact, or purported fact, is set forth in said affidavit tending to excuse appellant for not filing the judgment roll within the time fixed by law. An appeal may be taken on the judgment roll alone, or upon both the judgment roll and the bill of exceptions, or upon such other record as may be appropriate in a particular case, as provided by chapter 90, Stats. 1935.

We do not understand just why we should now permit the filing of the judgment roll because of reasons excusing appellant, if such be the case, for not properly preparing its bill of exceptions. In fact, no showing of excusable neglect having been made for failure to file the judgment roll in time, it is clear that the motion must be denied. Had there been excusable neglect for not filing the judgment roll, that should have been urged, on due notice, supported by a proper showing, at the time the motion to strike the bill of exceptions was made.

Other questions are discussed, but it is not necessary to consider them.

For the reason given, the motion is denied.

DUCKER, C.J., and TABER, J., concur.