Konig v. Nevada-California-Oregon Ry.

• Decision Date: 24 September 1913
• Docket Number: 2,017.
• Citation: 135 P. 141,36 Nev. 181
• Parties: KONIG v. NEVADA-CALIFORNIA-OREGON RY.
• Court: Nevada Supreme Court

135 P. 141

36 Nev. 181

KONIG v. NEVADA-CALIFORNIA-OREGON RY.

No. 2,017.

Supreme Court of Nevada

September 24, 1913

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by William Konig against the Nevada-California-Oregon Railway. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Heard on motion to dismiss the appeal and on the merits. Motion denied, and judgment and order reversed, and new trial granted, unless plaintiff consents to a modification of the judgment.

James Glynn and Mack, Green, Brown & Heer, all of Reno, for appellant.

Parker & Frame, of Reno, for respondent.

McCARRAN J.

This is an action wherein William Konig, plaintiff and respondent brought suit in the Second judicial district court against the appellant herein, Nevada-California-Oregon Railway, a corporation. Respondent, a man of about 58 years of age and of foreign birth, had been in the employ of the defendant company for a period of about 7 years, during which time he had been more or less constantly engaged as a millman performing services in and about appellant's mill, and operating machinery and equipment therein, among which was a circular ripsaw 14 inches in diameter. Respondent was earning approximately $3 a day.

On the 1st day of December, 1909, at about 10 o'clock in the morning, the respondent was injured by being struck with a piece of timber he had been cutting down to the proper dimensions, with a circular ripsaw, for a buffer block for one of appellant's cars, pursuant to instructions given him. By reason of the injuries thus sustained respondent's left arm was so maimed as to become entirely useless, his ribs on the left side were broken, and he was internally injured. As a result of his injuries he was confined to his bed for several months and forced to undergo an operation more or less serious in its nature. On the 2d day of January, 1911, the respondent brought suit against the defendant corporation and in due time the case was tried before a jury.

The defendant corporation joined issues with the plaintiff by an answer setting up specific denials of each and every allegation of the complaint, omitting any plea of affirmative defense. The result of the trial was a verdict for the sum of $15,000, by reason of which verdict judgment was rendered in favor of respondent and against the appellant. Motion for a new trial having been made before the trial court, the same was denied, and from the judgment and order denying defendant's motion for a new trial appeal is taken to this court.

A motion to dismiss the appeal has been made in this case on behalf of the respondent, and two grounds are relied upon in support of that motion: First, that the copy of the notice of appeal was served prior to the filing of the same; and, second, that the surety on the undertaking on appeal failed to justify after exception was filed to the sufficiency thereof.

As to the first proposition, it appears that the notice of appeal was dated and filed December 28, 1911, and there is attached to the original notice the affidavit of James Glynn, attorney for appellant, set forth as follows: "That on the 28th day of December, 1911, and within the time allowed by law, at Reno, Nevada, he served a true copy of the within notice of appeal on Parker & Frame, attorneys for plaintiff, by delivering to J. S. Parker, of said firm, a true copy of said notice." Attached to the respondent's motion to dismiss is the affidavit of J. S. Parker, one of the attorneys for respondent, which is in part as follows: "* * * That at the time of service of the copy of the notice of appeal the original notice of appeal had not been filed in the office of the clerk of the Second judicial court, in and for Washoe county, Nevada; that the notice of appeal as filed with said clerk was filed after the copy of the same was served upon the attorneys for the plaintiff and respondent; that the notice served upon the plaintiff and respondent was not and is not a copy of the notice of appeal now on file herein; that the notice of appeal served upon the attorneys for the plaintiff and respondent in this case on the 28th day of December, 1911, is attached hereto and made a part of this affidavit." The copy of the notice of appeal, attached to the affidavit of J. S. Parker, quoted above, and made a part thereof, is a correct carbon copy of the original notice of appeal, save and except that it does not contain a copy of the file marks of the clerk.

In the case of Elder v. Frevert et al., 18 Nev. 279, 3 P. 237, this court held that when a transcript on appeal fails to show that the notice of appeal was served as required by the statute, and a motion is made to dismiss the appeal on that ground, the court may grant leave to the appellant to supply this omission by filing an affidavit as to the proof of service upon the argument of the motion. In the case under consideration, after the motion to dismiss the appeal was filed in this court, and on the 27th day of April, 1912, James Glynn, attorney for appellant, filed his affidavit, in which he makes oath that a copy of the notice of appeal was served after the filing of the original. In this respect the affiant, James Glynn, goes considerably into detail as to the manner of filing and service. It appears from the record that the notice of appeal was filed in the clerk's office on the same day on which it is admitted in the affidavit of respondent's counsel the copy, as attached to the affidavit, was served on him. This court has held that, where the proof shows that the service of copy was made on the same day as the filing of the original, and in the absence of proof to the contrary, there is a presumption that the filing and service proceeded in regular order; that is, that the notice was filed before the copy was served. State v. Alta Mfg. Co., 24 Nev. 230, 51 P. 982.

Counsel for respondent in its motion places great stress upon the fact that the copy served does not show the indorsements upon the back thereof, nor copy of the file marks of the clerk; but in this respect it is our judgment that the indorsements upon the back of the original notice are no part of the notice, and a failure to include all or any of them does not affect the copy served. It would seem that the affidavit of J. S. Parker, to the effect that the original notice was filed after the service of a copy, was based, to some extent at least, upon the assumption that the copy of the notice must also include a copy of all indorsements. Nowhere in his affidavit does counsel for respondent set forth extrinsic facts which would tend to show that he had any particular knowledge of the order of filing and service, other than that gained from the documents themselves.

Even aside from the affidavits in this case, the record shows that the copy was served on the same day on which it was filed. Therefore, in the absence of proof, the presumption is that they were filed in regular order; hence it is incumbent upon counsel for respondent to overcome this presumption. This, we think, in view of the counter affidavits in behalf of the appellant, has not been accomplished.

As to the second proposition relied upon in furtherance of respondent's motion to dismiss, the record discloses that, on the day following the filing of the notice of appeal and the undertaking on appeal, respondent filed his exception to the sufficiency of the surety in the following form: "Comes now the plaintiff in the above-entitled action and excepts to the sufficiency of the sureties on the undertaking filed herein on appeal and on stay of execution on the 28th day of December, 1911, and asks that the said surety or sureties on said undertaking appear before the judge of the Second judicial court in Washoe county, Nev., and justify sureties as required by section 3443 of the Compiled Laws of Nevada."

The statute in force at the time at which this appeal was taken did not require the party excepting to the sufficiency of the surety to serve notice of his exception upon the adverse party, and it is admitted in this case that no notice of respondent's exception was served upon the appellant. It is contended by counsel for the respondent that under the provisions of the statute they were not required to give or serve notice on appellant of a demand for justification of the surety, but that appellant was bound, at its own peril, to take notice of any such demand, and authorities are cited in support of that contention. To say the least, the recognition and enforcement of a rule of this kind would be exceedingly harsh, and in view of rule 10 of the district court (24 Pac. ix), which we believe applicable to matters of this character, it is our judgment that the appellant is entitled to notice of exception to the sufficiency of the surety and demand for justification. Furthermore, this court held, in the case of Pratt v. Rice, 7 Nev. 123, that if on motion there is no good cause for haste or concealment, and if facts are to be found in the ascertainment of which the opposite party is deeply interested, such party has a right to notice and an opportunity to be heard.

In this case the appellant did not offer personal surety, but, on the other hand, the United States Fidelity & Guarantee Company executed appellant's bond on stay of execution pending the hearing and determination of the motion for a new trial and the trial judge on the 16th day of November, 1911, approved the bond given on stay of execution. The rules of the district court require that bonds given to stay execution, pending the determination of motion for a new trial, must be approved by the court. The statute under which this appeal was taken did not require the approval of undertakings...