Miller v. Walser

• Decision Date: 06 June 1919
• Docket Number: 2360.
• Parties: MILLER v. WALSER et al.
• Court: Nevada Supreme Court

181 P. 437

42 Nev. 497

MILLER v. WALSER et al.

No. 2360.

Supreme Court of Nevada

June 6, 1919

Appeal from District Court, Washoe County; R. C. Stoddard, Judge.

Action by C. N. Miller against Mark Walser and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Sanders J., dissenting.

Wm Woodburn, of Reno, for appellant.

Cheney Downer, Price & Hawkins, of Reno, for respondents.

DUCKER J.

In this action the district court sustained respondents' demurrer to the amended complaint. Appellant refused to amend and elected to stand upon the amended complaint. The court entered judgment dismissing the amended complaint and denying the relief sought by appellant in this action. From the judgment and order sustaining the demurrer, this appeal is taken.

The respondents ask that the appeal be dismissed upon the grounds: First, that the transcript of the record was not filed within 30 days after the appeal had been perfected, in pursuance of rule II of the Rules of the Supreme Court (154 Pac. viii); second, that a complete transcript of the record on appeal or a complete transcript of the judgment roll has not been filed in this court; third, that no bill of exceptions has been filed in the action; fourth, that appellant has not assigned, served, or filed any assignment of errors, as prescribed by law.

As the appeal is upon the judgment roll alone, no assignment of errors is necessary. Talbot v. Mack, 41 Nev. 245, 169 P. 25. The same is true as to a bill of exceptions. The judgment roll shows that the demurrer to the amended complaint was presented to the court, and discloses the ruling thereon. The order sustaining the demurrer is deemed to have been excepted to. St. 1915, § 321. The alleged error, thus appearing upon the face of the judgment roll, is not required to be incorporated in a bill of exceptions.

The objection presented by the motion to dismiss on the second ground, namely, an incomplete transcript of the record, must be disregarded. This objection is taken to the omission of the original complaint from the judgment roll, which constitutes the record on appeal. The judgment roll contains the demurrer to the complaint. That it was sustained by the court may be inferred from the amended complaint in the record. The original complaint was therefore superseded by the amended pleading, and the absence of the former from the transcript of the record is a mere technical omission, which cannot affect the rights of respondents, and could have been cured on suggestion of diminution of the record, as prescribed by rule VIII of this court (154 Pac. ix). Rule VIII reads:

"Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of appeal, or to its service or proof of service, or any technical exception or objection to the record affecting the right of appellant to be heard on the points of error assigned, which might be cured on suggestion of diminution of the record, must be taken at the first term after the transcript is filed, and must be noted in the written or printed points of the respondent and filed at least one day before the argument, or they will not be regarded."

No exception or objection to the transcript on this ground has been noted in respondents' brief as required by said rule VIII. For the reasons given, the objection will be disregarded. Kirman v. Johnson, 30 Nev. 150, 93 P. 500, 96 P. 1057.

By the first ground of the motion to dismiss the appeal, it is objected that the transcript of the record was not filed within 30 days after the appeal had been perfected, in compliance with rule II of the Supreme Court, which reads:

"The transcript of the record on appeal shall be filed within thirty (30) days after the appeal has been perfected, and the statement settled, if there be one."

It appears from the record that the appeal from the judgment on demurrer was perfected on August 24, 1918, and that the transcript on appeal was filed on October 7, 1918. Notice of motion to dismiss the appeal was filed on November 30, 1918, and served on counsel for appellant on the preceding day. After the transcript on appeal was filed, counsel for the parties herein entered into two stipulations, one of date of October 21, 1918, and the other of date of November 12, 1918, in which additional time to serve and file points and authorities was given to counsel for respondents.

It is contended by appellant that the effect of these stipulations, and respondents' failure to promptly move for a dismissal under said rule VIII, operate as a waiver of the motion to dismiss the appeal. We think the contention must be admitted. As the extension of time given in the stipulations was for the benefit of counsel for respondents, it may be presumed that they were entered into at their request. By entering into these stipulations, which were made for their accommodation, and by reserving no objection therein as to the time when the transcript on appeal was filed, they recognized the appeal, and their failure to timely move for a dismissal under the rule is an additional reason why a waiver of the objection should be enforced against respondents. The right to move to dismiss an appeal may be waived upon any grounds that are not jurisdictional. Botsford v. Van Riper, 32 Nev. 225, 106 P. 440; Henningsen v. T. & G. R. R. Co., 32 Nev. 51, 104 P. 223. The motion to dismiss the appeal is denied.

We will consider the appeal on its merits. In substance, it is alleged in the amended complaint (which will hereinafter be alluded to as the complaint) that on or about the 16th day of April, 1913, one R. L. Ray had an option to purchase certain mining claims known as Packard No. 1, Packard No. 2, and Packard Fraction, situated in the Rochester mining district, county of Humboldt, Nev., and represented to appellant and respondents that the said claims were of value; that on the same day all of these parties entered into an oral agreement and joint adventure, promising to use their joint efforts to acquire said claims, and share an equal interest therein, and to thereafter organize a corporation to take over the mining claims and to share equally in the stock issued by said corporation in payment for said claims; that it was agreed that Ray was to contribute to the joint adventure his right to purchase the claims, Margrave his services, knowledge, and experience as a mining engineer, Walser his legal services required to be rendered to the adventure, and appellant the sum of $2,500; that, before appellant was to contribute the said sum, Margrave was to examine the claims, and if, in his opinion, the same were of value and as represented by Ray, Margrave and Walser were to immediately notify appellant at Reno, Nev., to that effect; and that appellant, upon being so notified, was to contribute said sum of $2,500.

It is further alleged that on or about the 17th day of April, 1913, Margrave made an examination of the said mining claims, and, finding them to be of great value and as represented by Ray, informed Walser of the facts; that Walser and Margrave failed, refused, and neglected to notify appellant of these facts, or that Margrave had approved the claims, but, on the contrary, suppressed, concealed, and withheld from appellant this information, thus preventing him from complying with the terms of the agreement as to his contribution to said joint adventure of said sum of $2,500; that appellant, at all times mentioned in the complaint, has been and still is ready and willing to do or perform all things by him to be done or performed under the terms of the agreement.

It is alleged that on or about the 18th day of April, 1913, Margrave made the first payment on the mining claims for and on behalf of the joint adventure composed of himself, Walser, Ray, and appellant, and that thereafter, on or about July 11, 1913, respondents and Ray obtained title to said mining claims for and on behalf of the members of said joint adventure and enterprise, and for the use, benefit, and in trust, share and share alike, for all of the members thereof; that on or about the date last aforesaid, Ray and respondents, for and on behalf of themselves and appellant, organized the Nevada Packard Mines Company, for the purpose of taking over the claims in pursuance of the agreement and joint adventure, and conveyed them to the company, and subsequent to the organization of said company caused to be issued to Ray, Walser, and Margrave, in consideration of the transfer, 750,000 shares of the capital stock of said company, one-fourth thereof to Ray and three-fourths thereof to respondents; that, under the terms of said agreement and joint adventure, Ray, appellant, and respondents were each entitled to one-fourth of said stock, to wit, 187,500 shares; that respondents failed to issue, or cause to be issued and delivered, to appellant said 187,500 shares of stock, but had the same issued and delivered to themselves in equal parts, and have ever since refused and do now refuse to deliver the same to appellant; that the same is of the reasonable value of $93,750.

It is further alleged that respondents have received large sums of money, the exact amount of which is unknown to appellant, as dividends, profits, and emoluments upon said 187,500 shares of stock, and that an accounting will be necessary to determine the amount thereof. In the prayer of the complaint appellant asks to be declared the owner of the 187,500 shares of stock, and that respondents hold the same in trust for him; that they be required to deliver the same to him, and in case such delivery cannot be made, that he have judgment against them for $93,750, the value thereof; that an accounting be had of the profits or dividends, etc., received by...