City of Fallon v. Churchill County Bank Mortg. Corporation

• Decision Date: 12 September 1935
• Docket Number: 3114.
• Citation: 49 P.2d 358,57 Nev. 1
• Parties: CITY OF FALLON v. CHURCHILL COUNTY BANK MORTG. CORPORATION.
• Court: Nevada Supreme Court

49 P.2d 358

57 Nev. 1

CITY OF FALLON v. CHURCHILL COUNTY BANK MORTG. CORPORATION.

No. 3114.

Supreme Court of Nevada

September 12, 1935

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

Action by the City of Fallon against the Churchill County Bank Mortgage Corporation. From a judgment in favor of defendant plaintiff appealed. On defendant's motion to strike from the files and records of the court the document filed by plaintiff and designated "Bill of Exceptions."

Order in accordance with opinion.

Eli Cann, of Fallon, for appellant.

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

COLEMAN Justice.

This matter is before the court on the motion of respondent to strike from the files and records of the court the document filed by appellant and designated "Bill of Exceptions," upon the ground that the same was never filed in the lower court.

Section 9398, N. C. L., provides that a party to an action may serve and file a bill of exceptions. The same section contemplates that a transcript of the proceedings, certified, may be filed in lieu of a bill of exceptions. Paragraph 2, § 8829, N. C L., also contemplates the filing of a bill of exceptions. Counsel for appellant, upon the hearing, did not contend that it is not necessary that a document, to become a bill of exceptions, be filed. It was his contention that the document in question was in fact filed with the clerk of the lower court, and that it remained in his possession until about the time it was filed in this court.

It is the universal practice in this jurisdiction, so far as we recall, for the clerk of the trial court to indorse upon a bill of exceptions, when filed, a memorandum of its filing and the date thereof, and sign it as such clerk. There is no such indorsement upon the document in question, and there is no showing of any kind, except the bare statement above mentioned, of such filing. In opposition to the statement made, counsel for respondent exhibited a letter from the clerk of the lower court stating that no bill of exceptions had been filed in his office in the matter. Neither of these unsupported statements can be considered. It is the general rule that it must appear from the record that the bill of exceptions, if any, is filed within the time fixed by law. 4 C.J. 61.

It not appearing that the bill of exceptions was filed in the lower court, it necessarily follows that the motion to strike must be granted.

Upon the hearing of the above matter counsel for appellant tendered for filing two copies designated "Judgment Roll." No notice was given of the proposed offer, nor was any showing made as a basis for such offer, and counsel for respondent objected thereto. Rule II of this court provides that transcript of record on appeal, when there is no bill of exceptions in the case, shall be filed within thirty days after the appeal is perfected.

There is no showing when the appeal was perfected, other than what appears in the so-called "Bill of Exceptions," nor any showing of any kind as a basis even for the consideration of the offer by the court. If we accept the showing in the so-called "Bill of Exceptions," the time for filing a judgment roll had expired long prior to the making of the tender mentioned.

Counsel for appellant direct our attention to rule VII of this court...