Elsman v. Elsman
| Decision Date | 29 October 1931 |
| Docket Number | 2951. |
| Citation | 3 P.2d 1071,54 Nev. 20 |
| Parties | ELSMAN v. ELSMAN. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Geo. A. Bartlett and L O. Hawkins, Judges.
On petition for rehearing.
Petition denied.
For former opinion, see 2 P.2d 139.
Samuel Platt and Cooke & Stoddard, all of Reno, for appellant.
Thatcher & Woodburn and Forman & Forman, all of Reno, for respondent.
Respondent has presented his petition for a rehearing.
Counsel quote from our opinion the language in which we seek to distinguish a judgment from an order, wherein we say that a judgment is a final determination of the rights of the parties, whereas an order is a direction of the court preliminary and incidental to such final determination, and so forth.
Accepting our statement in which we sought to distinguish between a final judgment and an order, counsel contends that it must follow that the action of the court on December 3, 1930, was an order, and not a final judgment from which an appeal may be taken. In support of their contention it is said, quoting from Hunter v Hunter, 111 Cal. 261, 43 P. 756, 31 L. R. A. 411, 52 Am St. Rep. 180, that the allowance of alimony is an incident to an action for a divorce, and by analogy the question of the custody of children is an incident to a divorce, hence it must follow that the ruling of December 3d must be an order and not a judgment.
In Lake v. Lake, 17 Nev. 230, 30 P. 878, 879, which was a suit for a divorce and alimony, the court said: "That appellant had the right to appeal from a specific part of the whole judgment--the portion against her--without disturbing the other portions in her favor, we have no doubt."
In Lake v. Bender, 18 Nev. 361, 4 P. 711, 7 P. 74, it was held that where a divorce was first granted and subsequently the issues as to the property were determined, the court had authority to entertain a motion for a new trial as to the property rights. No motion for a new trial was made as to the divorce, but was made as to property rights. The motion was denied. An appeal was taken, and though the court recognized that the question of property rights was one incident to the divorce suit, it held that the right to move for a new trial and to appeal existed. Thus we see that our own court long ago took a position that an appeal might be taken upon that portion of a case which was incident to the main issue.
Counsel contend that the views expressed in our former opinion are contrary to our holding in Hough v. Nevada Treasure M. Co., 53 Nev. 333, 300 P. 948. We do not think so. In that case the order appealed from was one vacating a final judgment, leaving the case standing to be tried upon the issues made by the pleadings, whereas in the instant matter such was not the fact.
Nor do we find anything in the opinion of Nevada First National Bank v. Lamb, 51 Nev. 162, 271 P. 691, 692, contrary to our previous holding. It is true that in that case we said "It is a well-known general rule that there can be but one final judgment in a case."...
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