Mexican Dam & Ditch Co. v. Schultz

• Decision Date: 05 November 1921
• Docket Number: 2508.
• Citation: 201 P. 548,45 Nev. 260
• Parties: MEXICAN DAM & DITCH CO. v. SCHULTZ ET AL.
• Court: Nevada Supreme Court

201 P. 548

45 Nev. 260

MEXICAN DAM & DITCH CO. v. SCHULTZ ET AL.

No. 2508.

Supreme Court of Nevada

November 5, 1921

Appeal from District Court, Ormsby County; Mark R. Averill, Judge.

Action by Mexican Dam & Ditch Company against Joseph Schultz and others, doing business under the name of Schultz Bros Judgment for plaintiff. From an order denying a new trial defendants appeal. Affirmed.

H. V Morehouse and Wm. McKnight, both of Reno, for appellants.

W. M Kearney, of Reno, and W. E. Baldy, of Carson City, for respondent.

SANDERS C.J.

This is an appeal from an order denying to the defendants, Schultz Bros., a new trial in an action brought against them by the Mexican Dam & Ditch Company in the district court of Ormsby county.

As the case comes to us upon the motions of the ditch company to dismiss the appeal and to strike from the files appellants' assignments of errors, it would serve no useful purpose to make a statement of the several issues raised by the voluminous pleadings.

The motions to dismiss the appeal and to strike the purported assignments of errors are that the transcript on appeal contains no bill of exceptions, including errors based upon any ground urged for a new trial, as required by the Civil Practice Act, as amended by the statute of 1915 (Stats. 1915, p. 164, 3 Rev. Laws, p. 3342), that the purported assignments of errors are not based upon any bills of exceptions, and that said assignments are not in conformity with the requirements of said act as amended with respect to assignments of error. Stats. 1919, p. 55.

The answer of appellants to the motion to dismiss is: First, that the statute of 1915 is merely an optional method of appeal from an order denying a motion for a new trial, which may or may not be followed in bringing up the record on appeal from such order; second, that the statute of 1915, with respect to appeals from orders granting or overruling motions for new trial, is useless legislation, and violative of section 17, article 4, of the Constitution, which provides that each law enacted by the Legislature shall embrace but one subject; third, that on an appeal from an order all that is required of the appellant is to furnish this court with copies of the notice of appeal, the order appealed from, and the papers used on the hearing of the order in the court below, certified by the clerk to be correct.

Since counsel for appellants, by their first and second positions, concede and admit that appellants have ignored and made no effort whatever to comply with the requirements of the act of 1915, with respect to the preparation, service and filing of bills of exception after entry of the order, it is unnecessary for us to consider and discuss whether or not the requirements of the act of 1915 concerning bills of exception is mandatory or directory, or whether or not it is violative of section 17, article 4, of the Constitution.

Passing, then, to a consideration of the third position, without a further statement of it, it is conceded that the application for a new trial was made upon the insufficiency of the evidence to justify the decision, that it is against law, and for errors in law occurring at the trial and excepted to by the defendants. Rev. Laws, § 5320.

There is appended to the transcript on appeal the certificate of the clerk, which recites that the transcript, from page 1 to 750, is and contains full, true, and correct copies of the pleadings, orders, documentary evidence, and a copy of the stenographic report of the testimony and the record of the proceedings on the trial--all declared by the certificate of the clerk to have been presented to, used and referred to by the trial judge in passing upon the motion.

It is provided in section 5321, Revised Laws, that when the application for a new trial is made upon subdivisions 1, 2 3, or 4 of section 5320 it must be supported by affidavit. In all other cases it must be made upon the minutes of the court without statement or bill of exceptions. The trial court is expressly privileged by the provisions contained in section 5321,...