Reno Mill & Lumber Co. v. Westerfield

• Decision Date: 14 August 1902
• Docket Number: 1,614.
• Citation: 69 P. 899,26 Nev. 332
• Parties: RENO MILL & LUMBER CO. v. WESTERFIELD
• Court: Nevada Supreme Court

69 P. 899

26 Nev. 332

RENO MILL & LUMBER CO. v. WESTERFIELD

No. 1,614.

Supreme Court of Nevada

August 14, 1902

For former report, see 67 P. 961.

On rehearing. Granted.

BELKNAP J.

In the opinion heretofore filed importance was attached to the statement of respective counsel that the only matter considered by the judge before whom the motion for new trial was heard and determined was the refusal of Judge Curler to be sworn as awitness. The record does not show this fact. It is as follows: "The court now renders its decision upon defendant's motion for a new trial of this cause, and directs that a new trial of said cause be granted, for the reason that the defendant wasdeprived of the testimony of Judge Curler at the former trial, and such testimony may have been material." This is the record, and by it we must be governed. It should be noticed that the above words do not exclude from consideration any ground uponwhich the motion was made. In Oullahan v. Starbuck, 21 Cal. 414, a similar question arose. The court in that case said: "It is stated by appellant's counsel that the only ground upon which the court below based its action in granting a new trial was asupposed error in its refusing to allow a peremptory challenge to a juror after he had been accepted though not sworn. We do not doubt such was the fact, but the record does not show this, and by its contents we must be governed. ***

The question before us is the effect to be given to the terms of the order. Appellants contend that, as the order allowing a new trial was made upon one ground only, it should be construed as overruling the motion upon the other grounds. To thisview there are two answers: (1) The record does not affirmatively show that the order was made upon one ground only, as was erroneously considered in the original opinion. (2) Such construction would be unjust, for reasons fully stated in the case ofKauffman v. Maler, 94 Cal. 276, 29 P 481, 18 L. R. A. 124, following, where a similar question arose: "The proposition of the appellant, that this court is limited upon this appeal to a consideration of the grounds specified in the order granting thenew trial, is untenable. A party has the right to move for a new trial upon any or all of the grounds permitted by the statute, and if the record on which his motion is based discloses more than one ground for which as new trial should be granted, the court cannot, by stating in its...