Paul v. Cragnas
| Decision Date | 29 January 1900 |
| Docket Number | 1,565. |
| Citation | 59 P. 857 |
| Parties | PAUL v. CRAGNAS. |
| Court | Nevada Supreme Court |
Appeal from district court, White Pine county; G. F. Talbot, Judge.
Action by Frank Paul against Rocco Cragnas. From a judgment for plaintiff, defendant appeals. Affirmed.
Robt. M. Clarke, Peter Breen
A. E Cheney, and O. J. Smith, for appellant.
Wren & Julien and F. X. Murphy, for respondent.
This action was brought to recover damages of the defendant for refusing to permit the plaintiff to enter into the possession of a certain mining claim and work the same, and for excluding him therefrom. The plaintiff based his right to enter into possession and work said claim upon a written lease, executed to him, for an undivided one-third interest in said claim by the owners of said interest, the defendant owning an undivided two-thirds interest therein. The trial resulted in a verdict of the jury in favor of the plaintiff for $2,287.50, and a judgment accordingly. This appeal is from an order denying defendant's motion for a new trial.
The respondent moves the court to strike out each of 23 papers designated by name, which are found in a package of papers certified to be the whole record on appeal. This motion is granted. These papers constitute no part of the record on appeal. The practice of gathering up all the papers and documents filed in a case in the trial court, and sending them up on appeal, mixed with or attached to the record, when they constitute no part of it, should be discontinued. The statute clearly specifies what papers shall constitute the record on appeal in every appealable case. There is no authority for withdrawing any other papers from the files of the trial court for the purposes of an appeal. A party may be subjected to unnecessary costs by filing useless papers on appeal, as the fee of the clerk of the supreme court is 30 cents for filing each paper, and for entering each order of the court $1.50.
In the notice of appeal it is recited that the defendant hereby appeals to the supreme court "from the order overruling and denying defendant's motion for a new trial in said action, which said order was made and entered on the 11th day of May, 1899." The record shows that the order denying defendant's motion for a new trial was made and entered on the 10th day of May, 1899, instead of the 11th day of said month. Respondent moves for a dismissal of the appeal upon certain grounds named. One ground is to the effect that no appeal has been taken from the order made and entered on the 10th day of May denying the defendant's said motion. In Weyl v. Railroad Co., 69 Cal. 202, 10 P. 510, the respondent made objection to the notice of appeal for the reason that the notice did not give the correct date of the entry of the judgment and order denying a new trial from which the appeal was sought to be prosecuted. The court held, in substance, that, as the record showed that there had been but one judgment and order of the kind appealed from entered in the case, the notice was sufficient, and that the mistake of dates merely should be regarded as a clerical misprision. In Anderson v. Goff, 72 Cal. 65, 13 P. 73, the judgment appealed from was rendered on the 29th day of March, 1884, and entered on the 30th day of April following: The notice of appeal referred to the judgment as having been entered on the 29th of March, 1884. Held, that the notice was sufficient. In McAllep v. The Latona (Wash.) 19 P. 131, the notice of appeal described the decree appealed from, which was rendered October 7th, as of October 1st. It is not appearing that there was any other decree in the cause, the error as to the date was held not to be material. It will be observed that the appeal is taken "from the order overruling and denying defendant's motion for new trial in said action." The date in the clause following, "which said order was made and entered on the 11th day of May, 1899," clearly appears to be a clerical mistake, as the record shows that the order in said case overruling the motion was made and entered on the 10th day of May, 1899. It does not appear, nor is it claimed, that there was more than one order made on the motion. We are of opinion that said notice of appeal is sufficient.
Another ground alleged for the motion to dismiss is that no undertaking was filed on an appeal from said order of May 10th. We do not think this contention is tenable. The undertaking refers to the order appealed from as "the order of said district court denying and overruling defendant's motion for a new trial, which said order was made and entered on the 11th day of May, 1899." There being but one order made and entered overruling and denying defendant's said motion by the district court, it is evident that the reference to the date thereof as the 11th day of May, 1899, instead of the 10th day of said month, was and is simply a clerical mistake, and does not vitiate the undertaking. We do not think that the mistake could avail the sureties as a defense in an action against them on said undertaking. Sweeney v. Karsky, 58 P. 813, 25 Nev. --.
The third ground given for the motion to dismiss is that the undertaking was executed before the notice of appeal was filed. The statute requires that, to render an appeal effectual for any purpose, a written undertaking shall be executed on the part of the appellant by at least two sureties; that such undertaking shall be filed with the clerk within five days after the notice of appeal is filed. It is true that the undertaking was executed, in one sense, before the notice of appeal was filed, --that is, it was prepared and completed ready for filing before said notice was filed, --and, had it been filed before said notice, it would have been nugatory. But it is not required that the undertaking shall be thus executed within five days after the notice of appeal is filed, but simply that the filing thereof shall be made within that time. The execution of the undertaking was not completed until delivered. Its delivery was effected by filing it with the clerk. The motion to dismiss is denied.
Counsel for appellant, in his brief, points out certain portions of several instructions given to the jury, makes certain specific points of objections to the same, and contends that the court erred in giving the said instructions. But the statement of the case does not show that any of said points of objections or exceptions were stated at the trial. The alleged errors cannot be considered on appeal. McInnis v. McGurn, 55 P. 304, 24 Nev. --, and cases cited.
The defendant interposed a demurrer to plaintiff's complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and the ruling is assigned as error. We do not think said ruling was error, but that the facts alleged are sufficient. The facts, as shown by the complaint, stated in brief, are that on the 13th day of June, 1896, the defendant and Irene Robinson, Eugene Howell, and R. M. Clarke were the owners of a certain mining claim described therein, the defendant owning an undivided two-thirds interest, and the said Robinson, Howell, and Clarke owning among them an undivided one-third interest in said mining claim; that on said day the said owners of said one-third interest leased to the plaintiff their said interest for one year from said date upon the terms and conditions expressed in said lease; that the plaintiff on the 18th day of June exhibited said lease to the defendant, and offered to pay him any sum due from plaintiff's lessors as their proportion of the expenses incurred in the development of said mine; that defendant at said time, and at divers other times about said date, refused to give any statement of such expenses, refused to permit the plaintiff to enter into possession and work said mining claim, and excluded him therefrom; that the value of the rents, issue and profits of said term of said lease is $3,000. It is alleged that by reason of the refusal of defendant to let plaintiff into possession of said one-third interest in said mining claim under said lease, plaintiff was damaged in the sum of $2,500. A copy of said lease is attached to the complaint, and made a part thereof.
Counsel's first contention with respect to the facts alleged is that the writing called a "lease" is not a lease, but simply a license to plaintiff to extract and work ore at his option for the period of one year at a specified royalty on ores that he might perchance extract. The instrument in question, after giving the names of the parties thereto respectively, as the party of the first part and the party of the second part, recites that they "do by these presents covenant and agree, and the said party of the first part hereby leases unto the said party of the second part one-third interest in and to that certain mine known as and called the 'Homestake Mine,' situated," etc.; After specifying the amount of the royalty on each ton taken out, etc., it is recited, "Said royalty to be paid upon the first day of each month to the party or parties as...
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