First Nat. Bank v. Fallon
| Decision Date | 09 November 1933 |
| Docket Number | 3039. |
| Citation | 26 P.2d 232,55 Nev. 102 |
| Parties | FIRST NAT. BANK IN RENO v. FALLON et al. [a1] |
| Court | Nevada Supreme Court |
Appeal from District Court, Mineral County; J. Emmett Walsh District Judge.
Suit by the First National Bank in Reno against Ira Fallon and wife and others, wherein the defendant Charles R. Lewis filed a cross-complaint. From certain orders made in the District Court, the defendants Pacific National Agricultural Credit Corporation and Federal Intermediate Credit Bank of Berkeley appeal. On motion to dismiss the appeal.
Motion granted.
W. M Kearney and John Davidson, both of Reno, for appellants.
Green & Lunsford, of Reno, for respondent First Nat. Bank in Reno.
Arthur F. Lasher, of Reno, for respondent Charles R. Lewis.
This case is now before the court on a motion of the plaintiff bank and Lewis, cross-complainant (respondents here), to strike the record on appeal and to dismiss the appeal of the defendants Pacific National Agricultural Credit Corporation and Federal Intermediate Credit Bank of Berkeley, appellants.
On April 8, 1933, First National Bank in Reno instituted a suit in the district court for Mineral county to foreclose a mortgage executed by Ira and Kate Fallon, and joined Charles R. Lewis and the appellants herein as parties defendant, they having some interest in the property sought to be subjected to the foreclosure proceedings. No money judgment was asked for against any of the defendants other than the Fallons. The defendants Ira and Kate Fallon appeared and confessed judgment; Charles R. Lewis filed a cross-complaint. Summons was served upon appellants in California.
On May 20, 1933, there was filed with the clerk of the court by counsel for the plaintiff a request for a default against the said corporation defendants, who will hereafter be referred to as appellants, upon the ground that they had been regularly served with summons, and had failed to answer or demur within the time limited by law. On the same day, the said clerk entered the default of said corporations on the grounds mentioned.
On May 25, 1933, counsel for the plaintiff and counsel for the appellants appeared in open court. Counsel for appellants at that time tendered in open court a demurrer in behalf of appellants, to which objections were made by counsel for plaintiff. The objections to the filing of the said demurrer having been sustained, testimony was taken on the merits of the case in behalf of the plaintiff; whereupon judgment was ordered in behalf of the plaintiff and against all defendants in the sum of $24,000, plus interest and costs of suit, and also in favor of C. R. Lewis, as cross-complainant, and against Ira and Kate Fallon, in the sum of $16,000, plus interest and costs. A stay of execution was ordered for ten days.
On June 3, 1933, notice of motion and motion was served and filed in the lower court: (1) To strike from the record the said default; (2) to set aside and hold for naught the default filed by the plaintiff and entered by the court, and for an order to permit the appellants to answer to the merits; (3) to set aside and hold for naught the default judgment entered by the court against appellants on May 25, 1933.
On August 21, 1933, the appellants filed notice of appeal and undertaking on appeal, from certain orders, and particularly from the order denying appellants' motion to set aside the default judgment entered against appellants on May 25 1933; also from an order made after judgment denying appellants' motion to retax costs assessed against them.
The motion of respondents to strike and to dismiss the...
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