Hartford Mining Co. v. Home Lumber & Coal Co.

• Decision Date: 18 November 1940
• Docket Number: 3316.
• Citation: 107 P.2d 128,61 Nev. 1
• Parties: HARTFORD MINING CO. v. HOME LUMBER & COAL CO.
• Court: Nevada Supreme Court

107 P.2d 128

61 Nev. 1

HARTFORD MINING CO. v. HOME LUMBER & COAL CO.

No. 3316.

Supreme Court of Nevada

November 18, 1940

Appeal from District Court, First Judicial District, Storey County Clark J. Guild, Judge.

Action by the Home Lumber & Coal Company against the Hartford Mining Company and others. From a judgment for plaintiff, the named defendant appeals on the judgment roll alone. On respondent's motions to strike certain portions of the transcript and to dismiss the appeal, and appellant's motion to dismiss both of respondent's motions.

Decree in accordance with opinion.

G. A Ballard, of Reno, for appellant.

George L. Vargas, of Reno, for respondent.

TABER Chief Justice.

Several motions are presented on this appeal from a judgment of the First Judicial District Court, Storey County. Appellant was one of several defendants in the court below. The appeal is upon the judgment roll alone; there is no bill of exceptions.

The transcript of the record on appeal was filed May 17th, 1940 and appellant filed its opening brief May 31st, 1940. On the 7th or 8th of June, 1940, respondent noticed two motions, one to strike certain portions of the transcript on appeal, the other to dismiss the appeal. On June 20th, 1940, appellant noticed a motion to dismiss both of respondent's said motions.

Appellant's motion will be taken up first. It is based upon the ground that "the respondent has failed and neglected to file or serve an Answering Brief within 15 days after the service upon it of Appellant's Opening Brief upon appeal, and has not within said 15 days, or at all, solicited or procured from Appellant, this court, or either of the Justices thereof, an extension of time in which to file or serve its Answering Brief, all contrary to Rule XI of this Court and the statutes in such cases made and provided." In addition to Supreme Court Rule XI, appellant, in support of its motion, cites Smith v. Wells' Estate Co., 29 Nev. 411, 91 P. 315, and Midland Elevator Co. v. Harrah, 44 Okl. 154, 143 P. 1168.

Under the provisions of Supreme Court Rule XI, appellant is required to file and serve points and authorities or brief within 15 days after the filing of the transcript on appeal; respondent is required to serve points and authorities or brief within 15 days after service of appellant's points and authorities or brief; and within 15 days thereafter appellant is required to file and serve points and authorities or brief in reply. Said rule further provides, in part, that "a failure by either party to file points and authorities or briefs under the provisions of this rule and within the time herein provided, shall be deemed a waiver by such party of the right to orally argue the case, and such party shall not recover cost for printing or typewriting any brief or points and authorities in the case."

In Smith v. Wells' Estate Co., supra [29 Nev. 411, 91 P. 316], this court said: "On April 1st, without making any reservation, respondent obtained an order allowing it 10 days within which to file its brief, and this and the fact that it failed to file its brief or make any motion to dismiss the appeal within 15 days after the filing of appellant's brief we deem to be a waiver of its right to make the objections offered to the transcript." In Midland Elevator Co. v. Harrah, supra, plaintiff in error, in compliance with an order of court as to the filing of briefs, filed its brief setting up the grounds upon which it sought reversal. The defendant in error failed to file briefs or to offer any excuse for such failure. Under these circumstances the court held that it was not required to search the record to find some theory upon which the judgment might be sustained, and as the contentions of plaintiff in error seemed to the court to be reasonably sustained, the judgment was reversed.

In the case at bar, respondent's motions were noticed about a week after appellant's opening brief was served and filed, and about a week before respondent was required to serve and file its answering brief. Under these circumstances, and in the absence of any prejudice to appellant, we think that appellant's motion should not be granted. Bowers v. Charleston Hill Nat. Mines, 50 Nev. 99, 251 P. 721, 256 P. 1058; Ryan v. Snyder, 27 Wyo. 512, 200 P. 105.

A further reason for not giving favorable consideration to appellant's motions is that such motions tend to confusion, and are generally held not to be proper practice. Buehler v. Buehler, 38 Nev. 500, 503, 151 P. 44, 45; 7 Bancroft's Code Pr. and Rem. 7669, § 5792, n. 15; 42 C.J. 517, § 174. The motion is denied.

We next consider respondent's motion to strike. Section 38 of the 1937 New Trials and Appeals Act, Stats. of Nevada, 1937, c. 32, p. 66, provides, in part: "A party may appeal upon the judgment roll alone, in which case only such errors can be considered as appear upon the face of the judgment roll." This court on a number of occasions has held that nothing can become a part of the record on appeal from the final judgment unless it is a part of the judgment roll proper or is embraced in a bill of exceptions. Harper v. Lichtenberger, 59 Nev. 495, 498, 92 P.2d 719, 720, 98 P.2d 1069, 99 P.2d 474.

Respondent's motion to strike portions of the transcript is granted as to the following papers: Notice of Motion, and Motion, to amend Complaint, pp. 2-20; Order of October 14, 1938, requesting Points and Authorities, p. 21; Notice of Motion, and Motion, to Amend Complaint, and Affidavit in Support of said Motion, pp. 22-28; Order of December 16, 1938, Granting Permission to Plaintiff to File Amended Complaint, p. 47; Application for Entry of Default, p. 54; Default, p. 55; Dismissal without Prejudice of Certain Causes of Action, p. 56; and Conclusions of Law, pp. 68, 69 (see Harper v. Lichtenberger, supra). Among the papers moved to be stricken is a Memorandum of Costs and Disbursements, but we do not find any such paper in the transcript.

The amended complaint contained four causes of action. Defendant (appellant) filed a demurrer to the amended complaint, and on the same day filed a motion to strike. The demurrer was based upon the grounds that several causes of action had been improperly united, and that there was a misjoinder of parties defendant. The motion to strike set forth three reasons for striking the whole of the amended complaint. The court was also asked to strike certain paragraphs of the first cause of action, certain paragraphs of the second cause of action, and all of the third and fourth causes of action. We are not concerned with the motion insofar as it was directed at the third and fourth causes of action, because plaintiff dismissed both of them before final judgment. Neither the demurrer nor the motion to strike was based, wholly or in part, upon the ground that the amended complaint failed to state facts sufficient to constitute a cause of action. The motion to strike certain paragraphs of the first and second causes of action was based upon the ground "that the cause of action attempted to be stated therein is based upon a new and different theory of law and entirely different state of facts, and raises entirely new issues from the original complaint herein upon which trial was had and judgment given plaintiff." The motion to strike was denied and the demurrer overruled. Appellant filed no answer, and its default was entered. Thereafter the judgment was entered from which this appeal is taken.

There is, of course, no question about the propriety of incorporating the demurrer and ruling thereon in the judgment roll. The important question upon which counsel sharply differ is whether appellant's motion in the lower court to strike the amended complaint and certain portions thereof, and the ruling on said motion, should be stricken from the transcript on appeal. Respondent contends it should be stricken, because it has no place in the judgment roll. Appellant concedes that motions on the pleadings and rulings thereon are not, as a general rule, properly part of the judgment roll under statutes such as ours; but it maintains that the motion to strike made by it in the lower court was in substance and effect a demurrer, and that the ruling of the court in denying said motion can be reviewed without a bill of exceptions. In support of this position, cases are cited from Montana, Missouri, Idaho and Arkansas.

The Montana case chiefly relied upon is Bank of Commerce v. Fuqua, 11 Mont. 285, 28 P. 291, 14 L.R.A. 588, 28 Am.St.Rep. 461. This case was decided nearly fifty years ago, and the broad rule there stated has been limited in later decisions. This is apparent from the comparatively recent case of Paramount Publix Corporation v. Boucher et al., 93 Mont. 340, 19 P.2d 223, 224. After pointing out that a motion to strike parts, or the whole, of a pleading may be taken as a demurrer if the motion is based upon a ground for demurrer, the court went on to say that "under the provisions of the Code, the demurrer and motion each has its own separate and distinct office, and neither can perform that of the other." Further, says the court, "A demurrer can be interposed only for one or more of the seven grounds enumerated in section 9131, Revised Codes of 1921, and, if a motion attacks a pleading upon a ground other than one on which a demurrer can be interposed, the motion cannot be deemed a demurrer."

Appellant also places much reliance upon two Missouri cases Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257, and Shohoney v. Quincy, O. & K. C. R. Co., 231 Mo. 131, 132 S.W. 1059, 1065, Ann.Cas.1912A, 1143. If the former case tends to support appellant's contention, the same can hardly be said of the latter when read in its entirety, for in the opinion the court says: "All will agree...