Parks v. Garrison

Citation67 P.2d 314,57 Nev. 480
Decision Date30 April 1937
Docket Number3140.
PartiesPARKS et al. v. GARRISON. [*]
CourtSupreme Court of Nevada

Appeal from District Court, Clark County; Wm. E. Orr and James Dysart, Judges.

Action by Anna Roberts Parks and S. Gene Parks against H. C Garrison. From an adverse judgment and order, the plaintiffs appeal.

Affirmed.

Roger Foley and Harold M. Morse, both of Las Vegas, for appellants.

Leo A McNamee and Frank McNamee, Jr., both of Las Vegas, for respondent.

COLEMAN Chief Justice.

Plaintiffs have appealed from the judgment in favor of defendants, and from the order denying their motion for a new trial.

An order having been made, on stipulation of the parties striking the bill of exceptions, there is nothing the court can consider except the judgment roll. In this case the judgment roll consists of the pleadings, the findings of facts by the court, and the judgment (section 8829, N.C.L.)

While counsel for appellants have assigned in their briefs seven errors, they have waived the fourth, which was that the court erred in denying the motion for a new trial.

The first error assigned is to the effect that the court erred in its judgment and decision. The second is that the court erred in its findings of facts. The third is that the court erred in its conclusions of law based upon the findings of facts. The fifth is that the answer and each affirmative defense is not sufficient to constitute a defense to the plaintiff's complaint. The sixth is substantially the same as the first. And the seventh and last is that the findings of facts cannot and do not sustain the judgment entered.

Counsel for plaintiffs have filed a voluminous brief in support of their contentions, but as we view the record there are but two questions which we can consider, namely, (1) Does the answer raise an issue of fact as to the termination of the contract in question? and (2) Do the findings support the judgment?

As to the first question, we may say that so far as its appears from the record the sufficiency of the answer to raise an issue was not questioned in the lower court. It does not appear that a demurrer was filed to the answer, or that any objection was made to it at any time until the brief was filed in this court.

It is a well-recognized rule that a point made for the first time in this court will be deemed waived [Paterson v. Condos, 55 Nev 260, 30 P.2d 283] unless it goes to the jurisdiction of the court. In the instant matter, the court acquired jurisdiction of the subject-matter and of the parties upon the filing of the complaint and service of summons upon the defendant.

Where a complaint is attacked for the first time in this court, it is the well-established rule that the court does not look with favor thereupon. Deiss v. Southern Pac. Co., 56 Nev. 151, 47 P.2d 928, 53 P.2d 332; Morris v. Morris, 50 Nev. 298, 258 P. 232.

An equally liberal construction should be given to an answer, where attacked for the first time on appeal, as in this case.

However, an issue was presented for determination, as we will show.

As to the second question, we may say that this is a suit to enjoin the defendant from entering in business in competition with plaintiffs, in violation of the terms of a written contract. The contract which is pleaded in the complaint contains a provision that either party may terminate it by giving thirty days written notice of such intention. On the question of the termination, the court found: "That it is true that by the terms of said contract, it is provided that said contract...

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5 cases
  • Britz v. Consolidated Casinos Corp.
    • United States
    • Supreme Court of Nevada
    • 15 Septiembre 1971
    ...it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal. Parks et al. v. Garrison, 57 Nev. 480, 67 P.2d 314 (1937); Agricultural Ins. Co. of Watertown, N.Y. v. Biltz, 57 Nev. 370, 64 P.2d 1042 (1937); Harper v. Lichtenberger, 59 Nev. 495......
  • Young Elec. Sign Co. v. Erwin Elec. Co.
    • United States
    • Supreme Court of Nevada
    • 10 Diciembre 1970
    ...question it cannot be raised for the first time on appeal. Paterson v. Condos, 55 Nev. 260, 30 P.2d 283 (1934); Parks v. Garrison, 57 Nev. 480, 67 P.2d 314 (1937); City of Los Angeles, Cal. v. Eighth Judicial District Court, 58 Nev. 1, 67 P.2d 1019 (1937). Cf. Cottonwood Cove Corp. v. Bates......
  • Harper v. Lichtenberger
    • United States
    • Supreme Court of Nevada
    • 23 Enero 1940
    ...... point made for the first time in this court will be deemed. waived, unless it goes to the jurisdiction of the. court," Parks v. Garrison, 57 Nev. 480, 67 P.2d. 314; or to the point that the complaint does not state facts. sufficient to constitute a cause of action, Deiss ......
  • Craig v. Harrah
    • United States
    • Supreme Court of Nevada
    • 17 Enero 1949
    ...The evidence is not in the record, and must be regarded as sufficient to support such finding.' (Emphasis added.) In Parks et al. v. Garrison, 57 Nev. 480, 67 P.2d 314, Mr. Chief Justice Coleman, in his opinion, applied principle. On page 482 of 57 Nev., and page 314 of 67 P.2d it is stated......
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