Hough v. Nevada Treasure Mining Co.

• Decision Date: 01 July 1931
• Docket Number: 2935.
• Citation: 300 P. 948,53 Nev. 333
• Parties: HOUGH v. NEVADA TREASURE MINING CO. et al.
• Court: Nevada Supreme Court

300 P. 948

53 Nev. 333

HOUGH v. NEVADA TREASURE MINING CO. et al.

No. 2935.

Supreme Court of Nevada

July 1, 1931

Appeal from District Court, Eureka County; E. P. Carville, Judge.

Action by M. J. Hough against the Nevada Treasure Mining Company wherein Catharine M. Gallagher intervened. From an order vacating a default judgment against defendant, plaintiff appeals. On motions to dismiss the appeal and to strike the record on appeal.

Motion to dismiss the appeal granted.

Clyde D. Souter, James T. Boyd, and Sardis Summerfield, all of Reno, for appellant.

Harwood & Diskin, of Reno, for respondents.

SANDERS J.

The appeal was perfected on December 3, 1930. Omitting its formal parts, the notice of appeal reads as follows:

"1. From that certain order and judgment, and the whole thereof, made and entered in the minutes of the Court in the above-entitled action and Court on the 6th day of June 1930, wherein and whereby it was ordered that the Judgment heretofore entered in the above-entitled cause in favor of M. J. Hough and against Nevada Treasure Mining Company aforesaid, be vacated and set aside and for nothing holden; that the default of the Defendant, Nevada Treasure Mining Company, be set aside and vacated and for nothing holden; and whereby a judgment in favor of the Defendant, Nevada Treasure Mining Company, aforesaid, and the intervening petitioner and stockholder, Catharine M. Gallagher, was entered, and the prayer of the petitioner granted."

The minute "order and judgment," so called, referred to in the notice of appeal, reads as follows:

"It will therefore be the order of the Court that the Motion to strike made by plaintiff be and the same hereby is denied that the objections of plaintiff to the introduction of the petition of Catharine M. Gallagher notice of Motion, affidavits in support of the motion order to show cause. certificate of the Secretary of State of the State of Washington and to the hearing of the Motion be overruled.

"It is further ordered adjudged and decreed that the judgment in this case be vacated and set aside. That the execution issued thereon be quashed and declared of no effect and that the sheriff of Eureka County Nevada be restrained from proceeding further on said execution.

"Plaintiff is given an exception to the Court's rulings and the petitioner is hereby awarded costs.

"Dated this 6th day of June, 1930."

The respondent Catharine M. Gallagher moves to dismiss the appeal upon the ground that it was not taken in time. She moves to strike the record on appeal upon the ground that the papers documents, and files constituting the transcript on appeal are not incorporated in a bill of exceptions in conformity to the statute. If it be determined that the motion to dismiss the appeal is well taken,...