East Standard Mining Co. v. Devine

• Citation: 81 P.2d 1068,59 Nev. 134
• Decision Date: 05 August 1938
• Docket Number: 3235.
• Parties: EAST STANDARD MINING CO. v. DEVINE.
• Court: Supreme Court of Nevada

81 P.2d 1068

59 Nev. 134

EAST STANDARD MINING CO. v. DEVINE.

No. 3235.

Supreme Court of Nevada

August 5, 1938

Appeal from District Court, Sixth Judicial District, Humboldt County; L. O. Hawkins, Judge.

Action by Noel Devine against the East Standard Mining Company, a corporation. On motions to dismiss first and second appeals from a judgment for plaintiff.

Motion to dismiss first appeal granted and motion to dismiss second appeal denied.

Salter & Robins, of Winnemucca, for appellant.

J. W Dignan, of Winnemucca, for respondent.

TABER Justice.

Respondent as plaintiff in civil action No. 3470 in the Sixth Judicial District Court, Humboldt County, recovered a money judgment against appellant, defendant in said district court, on the 17th day of March, 1938. Notice of appeal was filed and served on March 21st, and on the same day appellant also filed an "undertaking on appeal," which was intended to be also an undertaking to stay execution. On April 1st following, a motion for an order staying execution was heard by said district court. This motion was opposed by respondent upon the ground, among others, that the said undertaking filed on March 21st was "defective for the purpose of staying said execution." The record does not show that any action was taken by the court on said motion but on said first day of April defendant filed with the clerk of said district court a dismissal, without prejudice, of the said appeal taken on March 21st. No order dismissing said appeal was made by the district court, nor was any application made to said court for such an order.

On said first day of April, appellant served and filed a new notice of appeal, and on the same day also filed a new undertaking on appeal, including an undertaking for stay of execution. On the same day the district court ordered that the execution of the judgment be stayed.

No contention or suggestion has been made by either party that the first notice of appeal was defective or that it was not served or filed within the time or manner prescribed by the statute; nor is it claimed by either party that the first undertaking on appeal was in any way insufficient as an appeal bond, or that it was not filed within the time limited in the statute. No exception was taken to the sufficiency of the sureties on the first appeal bond, and the time for so excepting had expired before April 1st.

Transcript of the record on appeal was not filed with the clerk of this court until April 30th. Rule II of the rules of this court provides that: "The transcript of the record on appeal shall be filed within thirty days after the appeal has been perfected, and the bill of exceptions, if there be one, has been settled."

Respondent has moved this court to dismiss both appeals. He contends that if appellant could abandon the first appeal at all, such abandonment could be effected only by court order, or with his consent. As no court order was made or applied for, nor respondent's consent given to any dismissal or abandonment of the first appeal, there was, respondent argues, a valid and perfected appeal pending when appellant attempted to take a second appeal, and said attempt was therefore a nullity, and the second appeal should be dismissed. While the transcript of the record on appeal was filed in this court within thirty days after the second attempted appeal had been perfected, it was filed more than thirty days after the first appeal was perfected; and as no good cause has been shown for appellant's failure to comply with said Supreme Court Rule II, this court should, as respondent contends, also grant his motion to dismiss the first appeal.

A number of California and Oregon decisions tend to support respondent's position with reference to the second appeal. Hill v. Finnigan, 54 Cal. 311; Brown v Plummer, 70 Cal. 337, 11 P. 631; Schmeer v. Schmeer, 16 Or. 243, 17 P. 864; McCarty v. Wintler, 17 Or. 391, 21 P. 195; Little Nestucca Wagon-Road Co. v. Landingham, 24 Or. 439, 33 P. 983; Hill v. Lewis, 87 Or. 239, 170 P. 316. But the better rule, in our opinion, is that declared in Sharp v. Brown, 37 Idaho 582, 217 P. 593. In that case the court said, in part: "Respondent argues that after the first appeal was perfected a second appeal could not be taken because the trial court was ousted of jurisdiction, citing Richardson v. Bohney, 18 Idaho 328, 109 P. 727; Hill v. Finnigan, 54...