Mellan v. Messenger

• Decision Date: 06 October 1924
• Docket Number: 2631.
• Citation: 228 P. 1095,48 Nev. 235
• Parties: MELLAN v. MESSENGER.
• Court: Nevada Supreme Court

228 P. 1095

48 Nev. 235

MELLAN v. MESSENGER.

No. 2631.

Supreme Court of Nevada

October 6, 1924

Appeal from District Court, Mineral County; J. Emmet Walsh, Judge.

Action by Jess Mellan against Ed. V. Messenger. From judgment for defendant, and order denying new trial, plaintiff appeals. Appeals dismissed, and judgment and order affirmed.

I. S Thompson, of Tonopah, for appellant.

J. H White, of Hawthorne, and C. C. Ward, of Mina, for respondent.

COLEMAN J.

This case is before the court on a motion to dismiss the appeal.

The motion to dismiss is based upon several grounds, one being that objections had been made by the defendant (respondent) to the so-called bill of exceptions in the district court and that the same had not been disposed of in that court.

We may say here that there is no affidavit accompanying the motion to dismiss, or other showing which we think would justify our granting the motion, so far as it is based upon matters not appearing in the so-called record on appeal. But there is another reason why the motion is not good. Section 2, c. 97, Stats. 1923, provides that no appeal shall be dismissed for any defect or informality in the appellate proceedings until the appellant has been given an opportunity to amend or correct such defect. This is a wholesome provision, and we think it should be construed most liberally.

Another ground of the motion is that the so-called bill of exceptions had not been filed with the clerk of the trial court. Inspection thereof shows that it bears what purports to be a notation of its having been duly filed. There is also what purports to be a certificate of the clerk, under the seal of the court, that "the within is the true, original bill of exceptions and record on appeal. * * *" There being no showing in support of the respondent's motion, this ground of objection must fail.

The respondent also moves to dismiss the appeal, upon the ground that it was not taken either from the judgment or from the order denying the motion for a new trial within the statutory time. The statute (Stats. 1913, p. 113) provides that an appeal may be taken from a final judgment within 6 months after the judgment is rendered, and from an order denying a motion for a new trial within 60 days after the order is made and entered in the minutes of the court. The final judgment was rendered on November 24, 1922, and on June 26, 1923, the order denying the motion for a new...