Kondas v. Washoe County Bank

• Decision Date: 11 April 1927
• Docket Number: 2735.
• Citation: 254 P. 1080,50 Nev. 181
• Parties: KONDAS v. WASHOE COUNTY BANK.
• Court: Nevada Supreme Court

254 P. 1080

50 Nev. 181

KONDAS v. WASHOE COUNTY BANK.

No. 2735.

Supreme Court of Nevada

April 11, 1927

Appeal from District Court, Washoe County; George A. Bartlett Judge.

Action by John Kondas against the Washoe County Bank. From an adverse judgment and an order denying his motion for new trial, plaintiff appealed. On motions to dismiss the appeals. Appeal from the judgment dismissed. Motion to dismiss appeal from the order entered on the motion for a new trial denied.

Huskey & Souter, of Reno, for appellant.

Price & Hawkins, of Reno, for respondent.

COLEMAN J.

The plaintiff has appealed from the judgment against him and from an order denying a motion for a new trial.

The case is before the court on motions to dismiss the appeals of the plaintiff. The parties will be referred to as they were designated in the lower court.

The court rendered its decision and judgment in open court on April 22, 1925, and on June 13, 1925, signed formal findings of fact and judgment order. On April 27, 1925, the plaintiff obtained from the court an order directing the defendant to prepare findings of fact. On April 29, 1925, defendant served on plaintiff notice of the decision and judgment rendered on April 22. On May 8, 1925, plaintiff served and filed his notice of intention to move for a new trial. On November 23 1925, the court entered its order on plaintiff's motion for a new trial.

To a full understanding of the matter under consideration a brief statement is necessary. The complaint alleges that on September 6, 1919, the defendant, for value, issued to the plaintiff two bills of exchange on the National Bank of Greece, at Athens, one being for 3,250 drachmas and the other being for 81,255 drachmas. On or about September 28, 1919 the two bills were presented to the National Bank of Greece for acceptance, which was refused, as claimed, through the fault of the defendant. Damages demanded. Though plaintiff's demands are presented in seven causes of action, we think the above statement will suffice. The trial court rendered judgment in favor of the defendant.

Upon a consideration of plaintiff's motion for a new trial, the court, on November 23, 1925, filed a written decision, in which it stated, inter alia:

"The court is satisfied with his decision as to draft No. 3504 for 8,125 drachmas, erroneously written by the issuing bank for 81,255 drachmas, but is dissatisfied with the decision as to draft No. 3503 for 3,250 drachmas. This latter draft had been altered by the issuing bank, the word "lires" having been first written and scratched and the word "drachmas" then written, which, under the testimony of banking experts, gave the instrument but a discretionary value at best, under banking practice; the drawee bank, the National Bank of Greece, at Athens, refusing to pay in this instance, and having returned the said draft to Kondas, the payee, and in its letter discharging itself of responsibility.

Plaintiff payee paid $600 for this 3,250 drachma draft, and was entitled to an instrument free from such error as would leave payment thereof to the discretion of the drawee bank on presentment.

The issues involved as to the two drafts are distinct and separable.

It is ordered that a new trial be had herein, hereby specifically limited to the matters involved in and concerning bill of exchange No. 3503, issued by the Washoe County Bank to John Kondas September 6, 1919, specifically described and referred to in the pleadings herein."

The point which we will first consider is that a party can appeal only from an adverse order, and that in this instance the order made on the motion for a new trial is favorable to the plaintiff. The notice of appeal which was served and filed January 20, 1926, so far as material to this inquiry, is to the effect that the plaintiff appeals from the judgment and order as follows:

"You, and each of you, will please take notice that the plaintiff in the above-entitled action does hereby appeal to the Supreme Court of the state of Nevada from the judgment made and entered in the above-entitled district court in the above-entitled cause on the 13th day of June, 1925, in favor of the defendant and against the plaintiff, and from the whole thereof, and also from an order made and entered in the above-entitled court and cause on the 23d day of November, 1925, on plaintiff's motion for a new trial, in so far as said order denies plaintiff's motion and application for a new trial of said cause with reference to the matters involved in and concerning bill of exchange No. 3504 for 81,255 drachmas, issued by the Washoe County Bank, defendant in the above court and cause, to John Kondas, plaintiff in the above court and cause, on September 6, 1919, and specifically described in and referred to in the pleadings in the above-entitled cause."

Section 5327, Rev. Laws, provides that aggrieved parties may appeal. Can it be said that the plaintiff was aggrieved by the order of the court made in passing upon the motion for a new trial? In a legal sense an aggrieved person is one who is injured. 2 C.J. 973. In McKenna v. McKenna, 29 R.I. 224, 69 A. 844, in considering a similar question, the court quoted approvingly as follows:

"The rule generally adopted in construing statutes on this subject is that a party is aggrieved by the judgment or decree when it operates on his rights of property or bears directly upon his interest. 2 Cyc. L. 633. The word 'aggrieved' refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation"-citing authorities.

In Re Switzer, 201 Mo. 66, 98 S.W. 461, 119 Am. St. Rep. 731, the court held that:

"'Every person aggrieved' includes every person whose rights were in any respect concluded by the judgment."

In Washington County Abstract Co. v. Stewart, 9 Idaho, 376, 74 P. 955, the court said on rehearing:

"If the court entered a judgment which deprives the plaintiff here of any of its property rights, then it must be a 'party aggrieved' within the meaning of the statute."

See, also, In re Macky's Estate, 46 Colo. 100, 102 P. 1088; Woodward v. Spear, 10 Vt. 422.

The order of the court was partially in favor of the plaintiff and partially adverse to him. To the extent that it was adverse to him he was aggrieved and had a right to appeal. In this connection counsel for defendant insist that since section 5329 provides that an appeal "from an order granting or refusing a new trial," "may be taken * * * within sixty days," and since the order in question contains the words, "* * * it is ordered that a new trial be had herein, * * *" the order is favorable to the plaintiff and hence he cannot appeal. Section 5329 does not purport to provide who may appeal, but merely fixes the time in which an appeal may be taken. Section 5327 states who may appeal, as we have pointed out. The notice of appeal clearly states that the appeal is from that portion of the order that is adverse to him. This in our opinion is all that is necessary.

It is further contended that the appeal from the order made on the motion for a new trial should be dismissed for the reason that the notice of intention to move for a new trial was not served and filed within the time prescribed by law. Chapter 86, Stats. 1921, provides that a party intending to move for a new trial where an adverse decision has been rendered against him by a court must, within ten days after written notice of such decision, file and serve notice of his intention, etc.

We have...