Mikulich v. Carner

• Decision Date: 21 February 1951
• Docket Number: No. 3640,3640
• Citation: 68 Nev. 161,228 P.2d 257
• Parties: MIKULICH et al. v. CARNER et al.
• Court: Nevada Supreme Court

Page 257

228 P.2d 257

68 Nev. 161

MIKULICH et al. v. CARNER et al.

No. 3640.

Supreme Court of Nevada.

Feb. 21, 1951.

Clarence Sundean and Leo A. McNamee, Las Vegas, for defendants and appellants.

Morse & Graves, Las Vegas, for plaintiff and respondent.

Bryan & Cory, Edwin J. Dotson, all of Las Vegas, for defendant and respondent.

BADT, Chief Justice.

Three motions have been argued and submitted to the court. The first is a motion to strike the entire bill of exceptions; the second, to strike certain documents therefrom; the third motion is to dismiss the appeal. We dispose of these in the order named.

Motion to Strike Bill of Exceptions

Pursuant to stipulation, appellants had to and including September 6, 1950 for service and filing of their bill of exceptions. On August 31, 1950 they served on respondent (and by respondent, we refer herein to respondent Mary Ann Carner), in one volume, the transcript of the proceedings certified by the court reporter, and sundry other documents and pleadings, and on the same date delivered the original to the deputy county clerk at her office. The deputy clerk issued to appellants' counsel a receipt for these papers, but did not place filing marks thereon until September 14, 1950, at which time she endorsed the same as having been filed August 31, 1950. From her affidavit it appears that her failure to place the filing marks on the original bill of exceptions on August 31, 1950, was an inadvertence. Respondent's motion to strike the bill of exceptions to based upon the premise that it was not filed until September 14 when the August 31 filing date was stamped thereon--the time for actual filing having expired September 6. We feel the the point has been determined by this court adversely to the contention of respondent in City of Fallon v. Churchill County Bank Mortgage Corporation, 57 Nev. 1, 11, 45 P.2d 358, 50 P.2d 944, 54 P.2d 273, 56 P.2d 1211, 59 P.2d 18. There the tendered bill of exceptions was deposited with the clerk on April 15, 1935 and was settled by the judge April 22, 1935, but no filing marks upon the original deposit appeared at all. This court said: 'To constitute filing it is not necessary that the clerk make the notation of filing, for all that a litigant can do in the matter of filing a document is to deposit it with the proper official and pay or tender the fee therefor, if there by any.' ¹

But respondent insists that the bill of exceptions must be stricken for further reasons, namely, that at the time of the service and filing it was neither indexed nor folioed, nor did it contain the instruments comprising the judgment roll nor certain other papers referring to matters after judgment; that, pursuant to an order of the trial judge, appellants were permitted to withdraw the record from the clerk, to the end that such papers might be bound together, indexed and the folios numbered, that the judge did not settle the said bill of exceptions until September 18, 1950; and that under such circumstances the entire bill of exceptions should be stricken. An affidavit on the part of appellants is to the effect that because of the size of the bill of exceptions, especially as enlarged when annexed to a copy of the judgment roll, notice of appeal, undertaking on appeal, etc., as required by § 9385.88 N.C.L. 1931-1941 Supp., it would result in an unmanageable single volume in violation of Rule IV, sub. 3 (requiring bills of exception to be bound in volumes of a size suitable for convenient handling), and that such purpose was accomplished. ^{2 2} Respondent indicates that appellant re-edited the bill of exceptions but appellants' affidavit denies this, except to the extent that the folios were numbered, certain fly sheets added, etc. We find no impropriety or violation of any statute or rule of court in the way the matter was handled. Any violation of the rules growing out of the original failure to number the folios, etc., has been cured and is moot.

Appellants also call attention to the fact that on September 5, 1950 they entered into a stipulation with counsel for respondent, allowing her to September 15, 1950 for service and filing of objections to the bill of exceptions served upon her and that the district judge made an appropriate order upon such stipulation, and that this constituted a waiver on the part of such respondent. Respondent says that at the time of such stipulation she was not aware of the failure of filing marks on the original bill of exceptions and so could not have waived her rights. The asserted waiver has much force, but we find it unnecessary to determine the point. We find no such violation of or failure to comply with our statutes or rules of court to justify striking the bill of exceptions. The motion to strike the bill of exceptions in its entirety is denied.

Motion to Strike Parts of Bill of Exceptions

This motion is directed to the documents sought to be stricken as 'extraneous documents included in the transcript of record on appeal and which are not a part of the proposed bill of exceptions.' These comprise two groups. The papers identified as belonging to the first group and embraced in folios 1 to 53 in the bill of exceptions are: The complaint, demurrer, answer of appellants, minute order overruling demurrer, answer of defendant Baker, reply, verdict, judgment, clerk's certificate of judgment roll and certification of judgment roll. These instruments comprise the judgment roll and are not required to be a part of the bill of exceptions. The second group of papers is identified as comprising the following: Receipt of copy of proposed bill of exceptions, certificate of court settling bill of exceptions, notice of appeal, undertaking on appeal, undertaking to stay proceedings on appeal, undertaking and agreement to stay proceedings on appeal, waiver of statutory undertaking to stay proceedings on appeal and approval of undertakings filed, amended notice of appeal, stipulation (allowing plaintiff to September 15, 1950 for objections to bill of exceptions), and order (approving such stipulation).

Section 9385.88 N.C.L. 1931-1941 Supp. reads as follows: 'The original bills of exceptions herein provided for, together with a notice of appeal and the undertaking on appeal, shall be annexed to a copy of the judgment roll, certified by the clerk or by the parties, if the appeal be from the judgment; if the appeal be from an order, such original bill shall be annexed to such order, certified by the clerk or by the parties, and the same shall be and become the record on appeal when filed in the supreme court. A party may appeal upon the judgment roll alone, in which case only such errors can be considered as appear upon the face of the judgment roll.'

Under this section the first group of papers attacked by the motion, those comprising the judgment roll, are not required to be settled and allowed as part of the bill of exceptions. Anderson v. Snell, 57 Nev. 78, 58 P.2d 1041, 62 P.2d 703. The same applies to the notice of appeal and the undertakings. The waiver of undertaking cannot be distinguished from the undertaking itself. No purpose will be served by discussing the propriety of attaching the stipulation granting respondent additional time to object to the proposed bill of exceptions. It may remain. The motion to strike the enumerated documents from the bill of exceptions is denied.

Motion to Dismiss Appeal

The appeal is from the judgment and from the order denying new trial. The motion is simply 'to dismiss the appeal herein.' Appellants have treated respondent's motion to dismiss as directed to either or both of the appeals, and we shall so consider it. The motion is based upon the contention that as the case of Mary Ann Carner against appellants was consolidated with the case of Forrest John Purdy against appellants on the ground that 'said actions involve common questions of law and fact and that a joint trial and consolidation of said actions would avoid unnecessary costs and delay,' and resulted in a judgment in favor of Mary Ann Carner in the sum of $65,000 and a judgment in favor of Forrest John Purdy against the same defendants in the sum of $10,000, pursuant to verdict of the same jury, and as appellants paid, satisfied and discharged the $10,000 Purdy judgment, it follows: 'that the satisfaction of the judgment without reservation by said named defendants, appellants here, in the consolidated case of Forrest John Purdy * * * is an express acknowledgment of liability of said named defendants, appellants herein, of the tortious acts of said named defendants, appellants herein, which the jury in each case found in favor of each plaintiff and against the identical named defendants, appellants herein, and by reason of the fact that said named defendants paid the judgment entered upon the verdict in the case above specified without reservation, and caused full satisfaction' to be entered; and that they therefor 'have no right of appeal in the case of Mary Ann Carner' from the judgment on the jury's verdict under the same identical facts tried in the said consolidated action. Respondent urges that there was but one...