Page v. Walser

• Decision Date: 14 February 1920
• Docket Number: 2437.
• Citation: 187 P. 509,43 Nev. 422
• Parties: PAGE et al. v. WALSER et al.
• Court: Nevada Supreme Court

187 P. 509

43 Nev. 422

PAGE et al. v. WALSER et al.

No. 2437.

Supreme Court of Nevada

February 14, 1920

Appeal from District Court, Washoe County; James A. Callahan, Judge.

Action by R. S. Page and another against Mark Walser and another. From an order denying the motion for change of place of trial, defendants appeal. Order affirmed.

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

Sardis Summerfield and Hoyt, Norcross, Thatcher, Woodburn & Henley all of Reno, for respondents.

COLEMAN C.J.

This is an appeal from an order denying a motion for a change of the place of trial of the above-entitled action from the county of Washoe to the county of Pershing. The motion was based upon the ground that it appears from the face of the amended complaint that the subject of the action, or some part thereof, is situated in Pershing county, and that no part thereof is situated in Washoe county.

Preliminary to disposing of the appeal upon the merits, it becomes necessary to determine whether or not the court has the authority to consider such appeal upon its merits at this time. The transcript on appeal was filed in the office of the clerk of this court on February 4, 1920. On February 7th counsel for respondents served upon counsel for appellants a notice to the effect that on February 13, 1920, they would move the court to proceed to hear the appeal taken from the order denying the motion for a change of place of trial. On the date last mentioned counsel for appellants did not appear, but a letter was presented, wherein they objected to the court's considering the matter, upon the grounds that the time for the filing of the assignment of errors and of an opening brief had not expired. Counsel for respondents appeared and argued the matter. The Statutes of 1919, p. 55 provide that the appealing party shall, within 10 days after the transcript on appeal shall have been filed, file his assignment of errors; and rule 11 (154 Pac. ix) of this court provides that the appellant shall, within 15 days after the filing of the transcript on appeal, serve and file his brief. The statute fixing the time for the filing of the assignment of errors does not apply in this case. While in Coffin v Coffin, 40 Nev. 345, 163 P. 731, we took the position that an assignment of errors was indispensable, in the case of Talbot v. Mack, 41 Nev. 245, 169 P. 25, we held that, the appeal being from the judgment roll, an assignment of errors was not necessary, and refused to dismiss the appeal; which ruling was adhered to in Miller v. Walser, 42 Nev. 497, 181 P. 437, and Smith v. Lucas et al., 43 Nev. 348, 186 P. 674.

Though the appeal in this case is not on what is technically known as the judgment roll, it is substantially the same. The record consists of the amended complaint, demand for change of venue, affidavit in support of the motion, written stipulation, and the order appealed from. The reasoning in the Talbot-Mack Case applies with equal force to the matter now before us.

The objection based upon rule 11, relative to the time allowed for the filing of the opening brief by appellant, is not well taken. Rule 23 (154 Pac. x) of this court provides that appeals from orders denying or granting a change of venue will be heard upon three days' notice when the parties live within 20 miles from Carson City, and when the party served resides more than 20 miles from Carson City one additional day's notice will be required. Ample notice was given of this hearing. Rule 23, when invoked, supersedes rule 11. The latter rule was made to govern in ordinary appeals, but rule 23 is a special rule, applying to the situation here presented, and controls, and was made to expedite hearings in this court upon appeals from an order granting or denying a motion for a change of venue, and other interlocutory...