Elsman v. Elsman

• Decision Date: 03 September 1931
• Docket Number: 2951.
• Citation: 2 P.2d 139,54 Nev. 20
• Parties: ELSMAN v. ELSMAN.
• Court: Nevada Supreme Court

2 P.2d 139

54 Nev. 20

ELSMAN v. ELSMAN.

No. 2951.

Supreme Court of Nevada

September 3, 1931

Appeal from District Court, Washoe County; Geo. A. Bartlett and L O. Hawkins, Judges.

Divorce action by Ralph Elsman against Beatrice J. Elsman, wherein defendant was granted a divorce, and the custody of the parties' minor child was determined. From a refusal to grant defendant's motion to amend the decree, as amended so as to give defendant sole possession and custody of such child, and from an order denying defendant's motion for new trial of such motion, defendant appeals. On motion to dismiss the appeal.

Motion denied.

Samuel Platt and Cooke & Stoddard, all of Reno, for appellant.

Thatcher & Woodburn and Forman & Forman, all of Reno, for respondent.

COLEMAN C.J.

Respondent has moved to dismiss the appeals in the above-entitled cause.

In January, 1927, the lower court granted a divorce to Beatrice J. Elsman from Ralph Elsman, and awarded to him the custody of their minor child, Ralph Elsman, Jr., subject to certain rights of visitation by the mother. In May, 1928, the court modified the original decree relative to the custody of the minor child. On November 4, 1929, Ralph Elsman filed in said court and cause a motion to again amend the said decree relative to the custody of said child, and thereafter the said Beatrice J. Elsman filed her objections to the modification as sought by Ralph Elsman, and applied for a modification thereof so as to give her the sole possession and custody of said child.

After numerous continuances, hearings, and a prohibition proceeding in this court (State ex rel. Elsman v. District Court, 52 Nev. 379, 287 P. 957), the lower court on December 3, 1930, filed its written opinion and decision wherein it incorporated the following:

"It is the order of this court that the petitions or motions of both plaintiff and defendant for the modification of the decree of this Court entered herein January 4, 1927 relative to the custody of Ralph Elsman, Jr., as modified May 2nd, 1928, be, and each of said motions or petitions for modification is denied.

And it is ordered that the said order of modification of May 2nd, 1928, be and the same is affirmed and continued in force as therein provided, save and except that instead of the defendant, Beatrice Elsman, being entitled to one month's visitation of an hour a day on notice by her to plaintiff of any one month in each year desired by her, it is the order of this Court that said right of visitation be, and the same is fixed for the month of July of each year, at which time defendant shall have the right to visit the minor child, Ralph Elsman, Jr., for one hour each day at either of the homes of said minor's father in Washoe County, Nevada, at the Franktown residence or the Reno residence."

Thereafter, and on December 10, 1930, counsel for the defendant served and filed a motion for a new trial. Counsel for plaintiff also filed a motion for a new trial. Both motions came on for hearing on December 23, 1930, at which time counsel for plaintiff withdrew his motion for a new trial, and thereafter, on December 23, 1930, argument was heard upon defendant's motion. After argument the court entered an order denying defendant's motion.

On the 23d of December, 1930, the court, on motion of counsel for plaintiff, ordered that an order, nunc pro tunc, as of December 3, 1930, in terms identical to those incorporated in the decision of December 3, 1930, be entered.

On February 26, 1931, the defendant served and filed her notice of appeal "from a judgment rendered in favor of the plaintiff and against the defendant in the above entitled action and court on December 3, 1930, and also from that certain order made by the above-entitled court in the above-entitled cause on December 23, 1930, denying defendant's motion and application for a new trial of said cause, said order being entered in the minutes of the court on or about December 31, 1930."

Thereafter, on May 4, 1931, the defendant served and filed her notice of appeal "from an order Made December 3, 1930 in the above-entitled Court and cause in favor of plaintiff and against the defendant, denying defendant's application for an award that defendant be granted custody of Ralph Elsman, Jr., a minor child of plaintiff and defendant, the Minute record of which said order denying defendant's said application, was not approved and signed by the trial judge, to-wit: Hon. Geo. A. Bartlett, prior to March 10, 1931; and also, from that certain order made by the above-entitled Court in the above-entitled cause on December 23, 1930 denying defendant's Motion and application for a new trial of said cause, said order being written up by the Clerk in the Minute Book of said Court on or about December 31, 1930 and which said record was not approved and signed by the said Judge Geo. A. Bartlett prior to March 10, 1931."

Counsel for respondent on June 22, 1931, served and filed notice to dismiss the two appeals taken by appellant, for lack of jurisdiction of this court to entertain the same, for which the following reasons are assigned:

"First: The proceedings sought to be appealed from and called in appellant's first Notice of Appeal, dated February 26, 1931, 'a judgment rendered in favor of plaintiff and against the defendant in the above-entitled action on December 3, 1930', is not and was not a Judgment, but was and is an Order of the Court, denying defendant's Motion for an Order modifying, changing, and amending certain parts of the Decree of divorce heretofore made and entered in said action on the 4th day of January, 1927, and that no appeal was taken from said Order of December 3, 1930, within sixty days from the time said Order was made and entered in the Minutes of the Court;

Second: That the appeal from the Order of the Court in said cause on December 23, 1930, denying defendant's Motion and Application for a new trial, was not taken within sixty days from the time said Order was made and entered in the Minutes of the Court;

Third: That there is no authority under the laws of the State of Nevada, for the new trial of a Motion, and that no appeal lies from an order denying such motion for new trial;

Fourth That the court has no...