Coleman v. Moore & McIntosh

• Decision Date: 03 December 1925
• Docket Number: 2723.
• Citation: 241 P. 217,49 Nev. 139
• Parties: COLEMAN v. MOORE & McINTOSH et al.
• Court: Nevada Supreme Court

241 P. 217

49 Nev. 139

COLEMAN v. MOORE & McINTOSH et al.

No. 2723.

Supreme Court of Nevada

December 3, 1925

Appeal from District Court, Washoe County; George A. Bartlett Judge.

Action by Catherine Coleman individually and as executrix of the estate of Denis Hegarty, deceased, against Moore & McIntosh and two others. Judgment for defendants, and, from an order sustaining defendants' motion to strike notice of intention to move for a new trial, and the undertaking thereon, plaintiff appeals. Appeal dismissed.

A Grant Miller, of Reno, for appellant.

M. B Moore and Wm. McKnight, both of Reno, for respondents.

DUCKER J.

This is a motion to dismiss an appeal. A statement of the facts upon which the motion is based follows: On the 5th day of February, 1925, this action came on regularly for trial in the district court of Washoe county, Judge J. A. Callahan presiding. Counsel for respondents, who were defendants there, objected to any testimony being taken on the part of plaintiffs. The objection was sustained, except as to parts of certain paragraphs of the complaint. Evidence was stipulated in support of said paragraphs, and the case submitted. On the 6th day of February, 1925, the court rendered its decision, which was entered in the minutes of the court, that plaintiff take nothing by her complaint, and that defendants have judgment for costs. Plaintiffs moved for a new trial, which was denied on March 16, 1925. On the 26th day of March, 1925, plaintiffs filed a notice of appeal from the judgment entered on the 6th day of February. No appeal was taken from the order denying the motion for a new trial.

Plaintiffs applied to the lower court on the 1st day of May, 1925, for an order directing defendants to prepare and present to the judge thereof findings of fact and conclusions of law and judgment in the action, or at the pleasure of the court, for an order directing the clerk of said court to prepare such judgment, and also applying to the court to have the judge thereof sign such judgment. The application was based upon the fact that Judge Callahan died before any judgment was presented to him for his signature. It was alleged in the notice of the application that no judgment had been signed made, or entered in said action; that the Legislature, since the death of Judge Callahan, had passed an act authorizing succeeding judges to sign judgments where the acting judge is dead, and that plaintiffs desired to appeal from said judgment and could not do so until it was entered. On the 14th day of September, 1925, Judge George A. Bartlett, one of the judges of the lower court, signed the following judgment:

"This cause coming on for trial on the 5th day of February before the court, without a jury, and the court having heard said matter, and the argument of counsel therein arising upon the objections of the defendants to the taking of any testimony under the complaint, and the matter having been submitted for decision, the court being fully advised in the premises, it is ordered and adjudged that the defendants' objection to the taking of any testimony in said cause be sustained, and that plaintiffs take nothing by their complaint and action, and the defendants have judgment for their costs. Execution stayed for a period of ten days upon stipulation of counsel.

Dated this 6th day of February, 1925."

Thereafter, on the 23d day of September, 1925, on motion to dismiss the appeal and upon filing in the Supreme Court a certificate of the clerk of the lower court showing that defendants failed to file within 30 days after their appeal had been perfected, a transcript of the record or bill of exceptions, said appeal was dismissed. On the 24th day of September plaintiffs filed a notice of intention to move for a new trial in the court below, and on the 25th day of September defendants filed notice of motion to strike said notice of intention to move for a new trial and the undertaking thereon. After a hearing on the motion to strike, the court on the 29th day of September, 1925, sustained it. From the order sustaining this motion, the plaintiffs appealed on the following day. It is this appeal that defendants now seek to have dismissed.

As we have stated, the appeal in this case is from the judgment only. An appeal may be taken from a final judgment within six months after the rendition of judgment. Section 5329, Rev. Laws. If judgment was rendered on the 6th day of February, 1925, the appeal must be dismissed, for it was not taken until nearly eight months thereafter, on the 30th day of September, 1925.

Plaintiffs assert that the former appeal was premature and taken merely as a precautionary measure, and contend that their time within which to take an appeal did not begin to run until the formal judgment was signed and entered on the 14th day of ...