Mikulich v. Carner, 3640
| Decision Date | 22 May 1951 |
| Docket Number | No. 3640,3640 |
| Citation | 231 P.2d 603,68 Nev. 161 |
| Parties | MIKULICH et al. v. CARNER et al. |
| Court | Nevada Supreme Court |
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, Las Vegas, for defendant and respondent.
This is respondent's second motion to dismiss appellants' appeal. We heretofore denied respondent's first motion, which was made upon the ground that appellants had paid a judgment to a different plaintiff whose action had been consolidated for trial with this action, involving the same questions of law and fact, and that such payment was an express acknowledgment of liability of appellants. Mikulich v. Carner, Nev., 228 P.2d 257. The present motion is made upon the ground that appellants have failed to file the statutory cost bond, and we have consented to consider the motion because it is insisted that the purported bond filed by appellants is void and a complete nullity and that therefore this court is without jurisdiction to entertain the appeal. In considering the motion, however, we are not to be understood as deviating from, or in any way limiting, the rule laid down in State ex rel. Department of Highways v. Pinson, Nev., 201 P.2d 1080, condemning subsequent motions attacking the appeal or the record on new and additional grounds which were available to respondent at the time of his former motions.
Appellants filed their notice of appeal from the judgment and from the order denying new trial. Within the statutory period they served and filed their undertaking on appeal.
The undertaking for costs and damages on appeal filed by appellants recited that whereas they had appealed or were about to appeal 'from the judgment [describing it] and also from the order of said court denying defendants' motion * * * for a new trial [describing it] now, therefore, in consideration of the premises, and of such appeal,' the surety undertakes to pay all damages and costs which may be awarded against the appellants 'on the appeal or on a dismissal thereof' etc. Respondent insists that the use of the singular 'appeal' in the clause obligating the surety leaves the respondent without security for costs in the two appeals and without even security for costs in either of the appeals by reason of the uncertainty resulting from the wording They rely on our recent opinion in Chance v. Arcularius, Nev., 227 P.2d 198, and the cases therein cited. In that case, however, and also in the Idaho and California cases cited in the opinion, the undertaking recited that whereas the appellant had appealed from the judgment, the surety became obligated for payment of damages and costs etc. There is a very material difference between the present undertaking and the one we held to be fatally defective. In Chance v. Arcularius we dismissed the appeal reluctantly, and we decline to extend the effect of such case to the present far different one.
Our statutory provision for the undertaking is contained in N.C.L. § 9385.68, 1931-1941 Supp. and reads as follows: 'An appeal may be taken from an order granting or denying a motion for a new trial and from the judgment at the same time by giving only one undertaking, in the sum of three hundred dollars, for the costs on appeal; and in the notice of such double appeal it may be stated that the appeal is from both the judgment and the order granting or denying the motion for a new trial, and upon the taking of such double appeal the one undertaking to stay execution in the ordinary form, and in the amount required to stay execution on appeal from the judgment, is sufficient to stay the execution.'
There is ample authority for sustaining, under similar statutes, an undertaking on appeals from the judgment and order denying new trial worded precisely as is the present one. Granger v. Robinson, 114 Cal. 631, 46 P. 604, holding the undertaking sufficient because both of the...
To continue reading
Request your trial