Graff v. Shipman Bros. Transfer Co., 3614

Citation67 Nev. 610,222 P.2d 497
Decision Date27 September 1950
Docket NumberNo. 3614,3614
PartiesGRAFF v. SHIPMAN BROS. TRANSFER CO. et al.
CourtSupreme Court of Nevada

Robert R. Gill, of Ely, for surviving appellant.

Gray & Horton, of Ely, for respondent.

HORSEY, Chief Justice.

This is on motion to dismiss the appeal of the appellants in the above entitled action.

The respondent, Arnold Graff, by his attorneys, Messrs. Gray and Horton, in his notice of motion to dismiss such appeal, has stated his grounds for such motion as follows:

'1. That no transcript of the record on appeal has ever been filed with the Clerk of the above entitled Court as prescribed by Rule II of the Rules of the Supreme Court.

'2. That no Bill of Exceptions has ever been served and filed as prescribed by Section 9385.81, Nevada Compiled Laws Supplement, 1931-1941.

3. That no Points and Authorities or Brief has been filed and served with the Clerk of the above entitled Court as prescribed by Rule XI of the Rules of the Supreme Court.'

In the notice of motion, following the above grounds therefor, it is stated that:

'Upon the hearing of this motion, Plaintiff below, Respondent here, will rely upon the following, to-wit:

'1. Exhibit 'A'--Judgment Roll

'A. Complaint

'B. Answer

'C. Demurrer

'D. Order

'E. Amended Answer and Counterclaim

'F. Reply

'G. Verdict

'H. Judgment by Clerk Upon Verdict

'I. Clerk's Certificate to Judgment Roll
'2. Exhibit 'B'--Affidavit of C. E. Horton
'3. Exhibit 'C'--Certificate of F. D. Oldfield
'4. Exhibit 'D'--Notice of Intention to Move for a New Trial
'5. Exhibit 'E'--Notice of Decision
'6. Exhibit 'F'--Stipulation
'7. Exhibit 'G'--Notice of Appeal
'8. Exhibit 'H'--Undertaking on Appeal

'9. Exhibit 'I'--Stipulation'

Certain factual and legal situations must be considered in order properly to resolve and determine the basic grounds of the motion to dismiss the appeal. Briefly stated, the cause of action as alleged in the complaint discloses: 'That Plaintiff is informed and believes and, therefore, alleges the fact to be, that as the proximate result of said careless, negligent, reckless and unlawful conduct of said Defendants, the said Defendants, by and through their said agent, servant and employee, the said R. H. Van Pool, negligently, carelessly, recklessly and unlawfully operated and drove the said Kenworth Tractor and Trailer into, upon, over and against the said herd of sheep with great force and violence, and whereby and by reason whereof, and as the proximate result of said negligent, reckless, careless and unlawful conduct of said Defendants, as aforesaid, One Hundred Sixty-four (164) head of ewes, heavy with lambs, and ten (10) yearling ewes, belonging to said Plaintiff, were killed to died as the proximate result of the acts of the said Defendants, as herein complained of.'

In paragraph XI of the complaint, filed January 26, 1946, it was, is substance, alleged that the 164 head of ewes, heavy with lambs, at said time and place, were of the value of $17 per head, that there was a ready market for such ewes, and that the same could have been sold for such price, at said time and place, and that, at said time and place, nine of the yearling ewes would have found a ready market and could have been sold for the price of $14 per head. Then follows the concluding paragraph of said paragraph XI, as follows: 'That by reason of the premises, and of the things and matters herein mentioned, and by reason of said carelessness, negligence, recklessness and unlawful conduct of said Defendants, as aforesaid, Plaintiff has been damaged in the sum of Two Thousand Nine Hundred Twenty-eight Dollars ($2928.00),' which was followed by the prayer, which prayed judgment against the defendants, and each of them, in the sum of $2,928, costs of suit and for such other and further relief as was meet and proper in the premises.

Upon further pleadings and proceedings having occurred, and the case having become at issue, the action, as shown by the certified copy of the judgment roll, certified on the 4th day of April, 1950, by F. D. Oldfield, clerk, was brought to trial on the 20th day of May, 1947, by a jury. Upon the conclusion of such jury trial, the jury, on said 20th day of May, 1947, found, by their verdict, in favor of the plaintiff and against the defendant, and assessed the plaintiff's damages at $2,590.

On the following day, May 21, 1947, the said F. D. Oldfield, clerk, entered 'judgment in favor of said plaintiff in accordance with said verdict, together with the costs and disbursements of this action taxed and allowed at the sum of Fifty-seven and 50/100 Dollars making a total judgment of Two Thousand six hundred & forty-seven & 50/100 Dollars.' (See copy of 'Judgment by Clerk upon Verdict', No. 5079, and constituting part of said judgment roll.)

As disclosed by the affidavit of said C. E. Horton, Exhibit 'B', in the motion to dismiss the appeal, said affiant, among other things, has stated the following:

'That on the 20th day of May, 1947, the jury sitting at the trial of the above entitled case and cause found a verdict in favor of the above named Plaintiff-Respondent and against the above named Defendants-Appellants;

'That judgment upon said verdict was entered by the Clerk of the Court on the 21st day of May, 1947;

'That thereafter and on the 26th day of May, 1947, said Defendants-Appellants, acting by and through their attorney, Robert R. Gill, Esq., filed Notice of Intention to Move for a New Trial;

'That on the 2nd day of June, 1947, the Court denied the motion for a new trial on all grounds set forth in said Notice of Intention to Move for a New Trial;

'That on the 16th day of July, 1947, said Defendants-Appellants filed with the Clerk of the Seventh Judicial District Court of the State of Nevada, in and for the County of White Pine, their Notice of Appeal from the said judgment entered on the said 21st day of May, 1947, and from the order of the Lower Court entered on the 2nd day of June, 1947, denying the motion for a new trial;

'That on the said 16th day of July, 1947, the said Defendants-Appellants filed with the Clerk of said Lower Court their Undertaking on Appeal;

'That the last stipulation extending time within which to proceed in regard to the appeal herein signed by counsel for said Plaintiff-Respondent and Defendants-Appellants respectively, was under date of July 25, 1947, whereby the time was extended to and including the 28th day of August, 1947, within which to object to the allowance and settlement or otherwise proceed in regard to certain papers served by counsel for Defendants-Appellants;

'That the time within which the said Defendants-Appellants could file a transcript of record herein has heretofore expired;

'That the time with which the said Defendants-Appellants could serve and file a Bill of Exceptions herein has heretofore expired;'

It is conceded and agreed by both parties that the appellants' counsel, on July 22, 1947, served and filed what purported to be three bills of exceptions. One of such bills of exceptions was served by appellants' counsel, Robert R. Gill, Esq., and served upon counsel for respondent, Messrs. Gray and Horton, and which did not require settlement, for the reason that said bill of exceptions consisted of the Court Reporter's transcript of the proceedings in the court below, such Court Reporter having been duly appointed by the Honorable District Judge of the Seventh Judicial District, in and for the County of White Pine, and duly authorized to serve in taking such testimony and to certify to same under authority of law.

In Section 9385.81, Nevada Compiled Laws Supplement, 1931-1941, in the second paragraph of said section, is the following provision:

'Transcript of Proceedings may Constitute Bill of Exceptions. Bills of exceptions shall be made up and prepared as follows, and not otherwise:

'(1) A transcript of the proceedings, certified by the court reporter, appointed by the court, under authority of law, or by agreement of the parties, to be a full, true and correct transcript thereof, may be served and filed, and when so filed shall be and constitute the bill of exceptions of the proceedings relating to the point or points involved, as therein set forth, without further stipulation or settlement by the court, provided, however, that on motion duly noticed the court may at any time correct any error in such transcript by appropriate amendment thereto.' (Emphasis added.)

In paragraph (a), page 2, of appellant's points and authorities, appellant had stated, on lines 22 to 24 thereof, the following: 'One bill of exceptions, the reporter's transcript of proceedings on the trial, certified by her and requiring no settlement, was served and filed on July 22, 1947, * * *'. (Emphasis added.)

On page 2 of 'Surviving Appellant's Points and Authorities on Opposition to Motion to Dismiss Appeal', on line 20 1/2 to and including line 31, we quote the following:

'Point 2:

'(a) One bill of exceptions, the reporter's transcript of proceedings on the trial, certified by her and requiring no settlement, was served and filed on July 22, and two other proposed bills of exceptions were served and filed on the same date. (Respondent's Exhibit 'I' on Notice of Motion to Dismiss Appeal.) These were under consideration on motion to strike from August 1, 1947, to March 22, 1949. They were not stricken, but settlement was refused. Writ of Mandate to compel settlement was applied for under date of April 29, 1949. (Shipman v. Watson, No. 3580 in this Court [Nev., 214 P.2d 155]).'

Further consideration hereinafter will be given to the other matters presented in said Point 2 on pages 2 and 3 of said 'Surviving Appellant's Points and Authorities on Opposition to Motion to Dismiss Appeal', but it seems advisable now to refer to and quote at length from Shipman v. Watson, 67 Nev. ----, 214 P.2d 155, to and including page 158. The opinion was written by the Honorable Frank McNamee, ...

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2 cases
  • State v. Connery, 14280
    • United States
    • Supreme Court of Nevada
    • April 29, 1983
    ...earlier Nevada cases contain language to the effect that a rule of court may never conflict with a statute. See Graff v. Shipman Bros., 67 Nev. 610, 222 P.2d 497 (1950); Roberts v. Roberts, 63 Nev. 459, 174 P.2d 611 (1946); American Sodium Co. v. Shelley, Et Al., 51 Nev. 26, 267 P. 497 (192......
  • Barlow v. Western Pac. R. Co., 3675
    • United States
    • Supreme Court of Nevada
    • December 17, 1951
    ...Nev. 516] P.2d 581, 118 P.2d 702; Craig v. Harrah, 65 Nev. 294, 195 P.2d 688; Dillon v. Dillon, Nev., 220 P.2d 213; Graff v. Shipman Bros. Transfer Co., Nev., 222 P.2d 497. Such is our As to the facts of service, the record on this motion discloses that by order of the trial court the time ......

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