Markwell v. Gray
| Decision Date | 31 March 1928 |
| Docket Number | 2795. |
| Parties | MARKWELL v. GRAY et al. |
| Court | Nevada Supreme Court |
Appeal from District Court, Churchill County; Clark J. Guild, Judge.
Action by Margaret Markwell against J. H. Gray and others. From a judgment of dismissal and an order denying a motion for new trial, plaintiff appeals. On motion to dismiss appeal from order denying motion for new trial and to strike papers files, and documents specified in the motion. Motion sustained.
G Gunzendorfer, of Reno, for appellant.
Price & Hawkins, of Reno, and A. L. Haight, of Fallon, for respondents.
On August 27, 1927, Margaret Markwell, appellant, plaintiff in the lower court, perfected her appeal from a judgment of dismissal of her action in equity, entered on April 13, 1927 and her appeal from an order denying her motion for new trial, entered on June 28, 1927. The respondents, defendants in the lower court, move to dismiss the appeal from the order denying the motion for new trial, and also move to strike the papers, files, and documents specified in the motions.
The parties will be designated as they appeared in the court below.
We shall first consider and dispose of the motion to dismiss. The motion is based upon the ground that no bill of exceptions was served and filed within 20 days after the decision upon the motion for new trial, as required by section 1 of chapter 97, Statutes 1923. In opposition to the motion, the plaintiff makes two contentions: (1) That the time prescribed by the statute does not begin to run until after notice of the decision upon the motion for new trial is served; (2) that, upon the showing made by the affidavit of counsel for plaintiff, filed in opposition to the motion, the motion should be denied.
The first contention is untenable. Concededly, no service of notice of the making of the order is required by the statute. Where no provision is made for notice, it is the duty of the moving party to ascertain the entry of such an order. Hayne New Trial and Appeal (Revised Ed.) p. 878, § 168, citing cases.
According to the affidavit filed in opposition to the motion to dismiss, plaintiff's motion for new trial was argued and submitted for decision on June 16, 1927, and taken under advisement. Immediately upon the submission of the motion, the trial judge spoke to the affiant about the possibility of an amicable settlement of the controversy that thereafter, upon the invitation of the judge, the parties and their attorneys met in his chambers for the purpose of considering a settlement of the case, and as a result of the negotiations there carried on, in which the judge participated, a tentative settlement was reached which involved various details requiring time to work out, and an adjournment was taken to effectuate the settlement; that, at the time of the adjournment, affiant was given to understand that nothing further would be done in the action, especially as to said motion for a new trial, in view of the probable settlement of the controversy; that on June 28, 1927, and while the proposed settlement was in process of maturing, the court made, and caused to be entered, an order denying plaintiff's motion for new trial; that neither the judge, his clerk, nor the attorneys for defendants gave plaintiff or affiant any notice, verbal or written, of the decision and order denying the motion; that on several occasions affiant conversed with the judge, on two of which the judge inquired of affiant as to the status of the settlement of the case, but said nothing to affiant of having made an order denying plaintiff's motion for new trial, and affiant remained in utter ignorance thereof until he was informed by plaintiff on August 26, 1927, that she had just been advised that an order denying the motion had been made by the judge on June 28, 1927; that on September 1, 1927, affiant requested Prince A. Hawkins, one of the attorneys for defendants, to stipulate that the court make an order extending time in which to serve and file a bill of exceptions: that the request was refused by Mr. Hawkins, who referred affiant to the judge; that thereupon affiant communicated with the judge, and also forwarded to him a blank form of order, extending the time to September 30, 1927, in which to serve and file a bill of exceptions; that the judge, in answer to the communication, referred affiant to the attorneys for the defendants for a stipulation agreeing to the entry of the order; that affiant again requested of Mr. Hawkins...
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