Padilla v. Mason

CourtSupreme Court of Nevada
Citation296 P. 1083,53 Nev. 226
Docket Number2933.
Decision Date27 March 1931

Appeal from District Court, Clark County; J. Emmett Walsh, Judge.

Action by Jose Padilla against Leona M. Mason, sometimes known as and called Leona M. Padilla. Decree for plaintiff, and defendant appeals.


Louis Cohen, of Las Vegas, for appellant.

Ham & Taylor, of Las Vegas, for respondent.


Respondent has made a motion to dismiss the appeal from the interlocutory decree made and entered herein and from the order directing the sale of the property described in the decree, to affirm the order, and for damages.

This is a partition proceeding. No answer was filed to the complaint. Upon the hearing the court ordered the property sold at public auction.

The motion is based upon the following grounds: (1) That there has not been filed and served a proper transcript on appeal (2) that there has not been filed or served any bill of exceptions; (3) that no memorandum of errors or brief has been filed or served; and (4) that the attempted appeal is without merit.

The so-called transcript on appeal was filed in this case on November 24, 1930.

Appellant has at no time filed a brief and assignment of errors in support of the appeal, nor asked for further time in which to do so. Rule XI provides that these shall be filed and served within fifteen days after the filing of the transcript on appeal. Respondent served his notice of motion on December 23, 1930, and filed it on the 26th of that month.

It has been repeatedly held by this court that, when an appellant fails to prosecute his appeal, the judgment appealed from may be dismissed. Goodhue v. Shedd, 17 Nev. 140, 30 P 695.

Section 8906, Nev. Comp. Laws 1929, provides that, when it appears to the appellate court that the appeal was taken for delay, this court may add to the costs such damages as may be just.

The appellant not having appeared and contested this matter in the lower court, and having failed to prosecute her appeal here, we can reach no other conclusion than that this appeal was taken for the purpose of delay only, and that damages should be assessed. Paroni v. Simonsen, 34 Nev. 26 115 P. 415; Escere v. Torre, 14 Nev. 51; Gammans v. Roussell, 14 Nev. 171; Wheeler v. Floral M. & M Co., 10 Nev. 200; Kercheval v. McKenney, 4 Nev. 294.

It is ordered that the decree and order appealed from be affirmed with costs, and...

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2 cases
  • Henry McCleary Timber Co. v. Sewell, 3912
    • United States
    • Nevada Supreme Court
    • January 9, 1956
    ...v. Pray, 64 Nev. 22, 176 P.2d 236. Cf. Goodhue v. Shedd, 17 Nev. 140, 30 P. 695; Adams v. Rogers, 31 Nev. 150, 101 P. 317; Padilla v. Mason, 53 Nev. 226, 296 P. 1083; Roberts v. Roberts, 63 Nev. 459, 174 P.2d 611. While the rule may well now be different under N.R.C.P. so far as concerns th......
  • Dreyer v. Dreyer, 4100
    • United States
    • Nevada Supreme Court
    • June 3, 1958
    ...frivolous and sham and moves that she be awarded $500 as damages. The only authorities cited in support of said motion are Padilla v. Mason, 53 Nev. 226, 296 P. 1083, and Wilson v. Goldring, 58 Nev. 154, 72 P.2d 1109. At the time of the orders made in those cases § 8906, N.C.L.1929, contain......

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