Roberts v. Roberts

Citation174 P.2d 611, 63 Nev. 459
Case DateNovember 22, 1946
CourtSupreme Court of Nevada

Appeal from District Court, Eighth District, Clark County; George E Marshall, Judge.

Action for divorce by David G. Roberts against Mary Louise Roberts. From a judgment for plaintiff and an order denying defendant's motion for a new trial, defendant appeals. On respondent's motion to dismiss the appeal.

Appeal dismissed.

Luke J McNamee, of Las Vegas, for respondent.

EATHER Justice.

This matter is before the court on the motion of respondent to dismiss the appeal in the above-entitled matter. The principal ground of the motion is that no transcript of the record on appeal has ever been filed with the Clerk of this Court as prescribed by Rule II of the rules of the supreme court.

Briefly stated the facts are as follows:

'On the 30th day of September, 1943, the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, Case No. 17847, made and entered a final judgment of divorce in favor of Respondent herein and against Appellant, on the ground of extreme cruelty. Written notice of decision of said case was duly served upon the attorney for the Appellant on October 1st, 1943.
'A motion for a new trial was subsequently made by the Defendant, Appellant herein, and on October 22nd, 1943, the lower court denied said motion for a new trial.
'On December 15th. 1943, the defendant, Appellant herein, filed with the Clerk of the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, a Notice of Appeal to the above-entitled court from the final judgment and the whole thereof and each and every part thereof made and entered on the 30th day of September, 1943, and also from the order of the lower court denying the defendant's, Appellant herein, motion for a new trial made and entered by the lower court on October 22nd. 1943.
'The Notice of Appeal was signed by the defendant, Appellant herein, in Propria Persona.
'An Undertaking on Appeal was duly served and filed with the Clerk of the Lower Court.
'No further proceedings were taken by the defendant, Appellant herein, in connection with the perfection of said appeal.
'Under the law, where Notice of Appeal is given and the proper undertaking on appeal is filed with the Clerk of the lower court to the Supreme Court, the lower court is divested of any further jurisdiction in the case and jurisdiction of said case is taken over by the Supreme Court.
'Therefore, for the purpose of making the motion to dismiss the appeal in the Supreme Court, the Respondent herein caused a certified copy of the Judgment Roll, the original Notice of Appeal and the Undertaking on Appeal to be filed in the above-entitled court, together with a certificate by the Clerk of the lower court setting forth no request for transcript was ever made by the Appellant in the lower court and that the only papers in connection with the appeal were the Notice of Appeal and the Undertaking on Appeal.' Notice of motion to dismiss the above appeal, with affidavit in support thereof, was duly served upon the appellant.

Rules II and III of the Supreme Court of the State of Nevada provide as follows:

'Rule II. The transcript of the record on appeal shall be filed within thirty days after the appeal has been perfected, and the bill of exceptions, if there be one, has been settled.

'Rule III. If the transcript of the record be not filed within the time prescribed by Rule II, the appeal, after five days' notice in writing to the appellant, specifically stating the grounds thereof, may be dismissed on motion of the respondent.

'Copies of all documentary evidence and affidavits to be relied upon on the hearing of said motion, other than the transcript of the record, shall be served with said notice. If witnesses are to be called upon said hearing, their names must be stated in said notice, as well as the substance of what they are expected to testify to.'

No request to the Clerk of the lower Court to prepare a transcript was ever filed and no proceeding for a bill of exceptions or transcript was ever instituted by appe...

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5 cases
  • Graff v. Shipman Bros. Transfer Co.
    • United States
    • Supreme Court of Nevada
    • September 27, 1950
    ...to before me this 4th day of April, 1950. 'Barbara Brandis 'Notary Public 'My Commission Expires: 11-3-53' In the case of Roberts v. Roberts, 63 Nev. pages 459 to and including 463, 174 P.2d 611, the opinion was written by Mr. Justice Eather. It appears advisable, in order to show the close......
  • State v. Connery, 14280
    • United States
    • Supreme Court of Nevada
    • April 29, 1983
    ...that a rule of court may never conflict with a statute. See Graff v. Shipman Bros., 67 Nev. 610, 222 P.2d 497 (1950); Roberts v. Roberts, 63 Nev. 459, 174 P.2d 611 (1946); American Sodium Co. v. Shelley, Et Al., 51 Nev. 26, 267 P. 497 (1928); Ex Rel. Williams v. District Court, 48 Nev. 459,......
  • Blouin v. Blouin
    • United States
    • Supreme Court of Nevada
    • May 17, 1949
    ......Brearley v. Arobio, 54 Nev. 382, 12 P.2d 339, 19 P.2d 432;. McGill v. Lewis, 61 Nev. 28, 111 P.2d 537, 116 P.2d. 581, 118 P.2d 702; Roberts v. Roberts, 63 Nev. 459,. 174 P.2d 611; Sullivan v. Nevada Industrial. Commission, 54 Nev. 301, 14 P.2d 262; Nevada Desert. Inn v. Burke, 64 Nev. ......
  • Doolittle v. Doolittle, 3769
    • United States
    • Supreme Court of Nevada
    • November 3, 1953
    ......Roberts v. Roberts, 63 Nev. 459, 174 P.2d 611. ......
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