Finnegan v. Ulmer

• Decision Date: 23 September 1909
• Docket Number: 1,818.
• Citation: 104 P. 17,31 Nev. 523
• Parties: FINNEGAN v. ULMER et al.
• Court: Nevada Supreme Court

104 P. 17

31 Nev. 523

FINNEGAN v. ULMER et al.

No. 1,818.

Supreme Court of Nevada

September 23, 1909

Appeal from District Court, Esmeralda County.

Action by Lillian May Finnegan against Bert Ulmer, William Mulholland, and others. Judgment for plaintiff, and defendant Mulholland appeals. Affirmed.

Bartlett Thatcher & Gibbons and James Donovan, for appellant William Mulholland. Pyne, Douglass & Tilden, for respondent.

TALBOT J.

The appeal is taken by the defendant Mulholland from a judgment in favor of the plaintiff for rent or the value of the use and for the restitution, of the possession of leased premises. The record contains the judgment roll and a bill of exceptions. The only specification of error is to the order of the court allowing the complaint to be amended to conform to the evidence, made after the trial and before final entry of judgment.

It is claimed that this order was erroneous (1) because upon the pleadings and evidence the defendant Mulholland was entitled to judgment against the plaintiff; (2) because there was no evidence sustaining the allegations contained in the amendment allowed to be made; (3) because the amendment changed the issues in the action, and prevented the defendant from answering and introducing evidence to disprove the allegations contained in the amendment; (4) because the defendant Donnelly conveyed his interest in the lease, and gave possession of the premises to the defendant Mulholland (5) because the amendment injected into the case an issue which the defendant Mulholland had no opportunity to refute and (6) because the allowance of such amendment was a gross abuse of discretion of the court, and deprived the defendant from meeting the issues thereof.

It is said that this court may determine whether the evidence supports the judgment without any specification of error stating wherein the evidence is insufficient. This might be true if the defendant brought the evidence here in a statement on motion for a new trial with an assignment of error that the decision was not supported by the evidence, without specifying wherein the evidence was insufficient, under section 197 of the civil practice act (Comp. Laws, § 3292), which as amended provides: "When the notice designates, as the ground upon which the motion will be made, the insufficiency of the evidence to justify the verdict or other decision, it shall be a sufficient assignment of error to specify that the verdict of the jury, or the decision, or judgment, or decree of the court, is not supported by the evidence, or is contrary to the evidence. In such case where it appears that the evidence taken altogether does not support the verdict, or decision, or judgment, or decree of the court, a new trial shall be granted, or, upon appeal, the case shall be reversed without regard to whether there are express findings upon all the issues, or whether the specifications particularly point out the finding or findings, either express or implied, that are not supported by the evidence, or are contrary thereto. When the notice designates, as the ground of the motion, error in law occurring at the trial and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. If no specifications be made, the statement shall be disregarded. ***" Section 191 (Comp. Laws, § 3286) directs "that the point of the exception shall be particularly stated." McGurn v. McInnis, 24 Nev. 370, 55 P. 304, 56 P. 94; Schwartz v. Stock, 26 Nev. 150, 65 P. 351, and cases cited; State v. Williams, 31 Nev. --, 102 P. 974.

As there was no assignment that the judgment was not supported by the evidence, and no motion for a new trial nor statement on motion for a new trial under which the evidence could be reviewed by the trial court or this tribunal, consequently the question whether it supports the judgment which has been extensively argued is not properly before us under the rule so often laid down. Candler v. Ditch Co., 28 Nev 163, 80 P. 751; Burbank v. Rivers, 20 Nev. 81, 16 P. 430, and cases cited; Simpson v. Ogg, 18 Nev. 28, 1 P. 827; Hayne on New Tr. & App. § 96. There is good reason for this practice because questions relating to the facts and sufficiency of the evidence are more directly for the consideration of the trial court, which is in a better position to observe the demeanor of the witnesses and has a better opportunity to properly determine and review these questions. Section 195 of the civil practice act allows as one of the grounds for a new trial the insufficiency of the...