Robinson v. Kind
| Citation | 59 P. 863,25 Nev. 261 |
| Decision Date | 23 January 1900 |
| Docket Number | 1,568. |
| Parties | ROBINSON v. KIND et al. |
| Court | Supreme Court of Nevada |
Appeal from district court, Eureka county; A. L. Fitzgerald, Judge.
Action by Irene M. Robinson against Henry Kind and another. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal. Reversed.
Thomas Wren, for appellants. Robt. M.
Clarke Peter Breen, and N. Solderer, for respondent.
This appeal is taken from a judgment made an entered by the district court on the 16th day of June, 1808, and from an order denying appeallant' motion for a new trial made on the 2d day of February, 1899. The appellants served and filed their motive of appeal on the 7th day of February, 1899. On the 3d day of July, 1899,--the same being the first of the July term of this court,--the respondent interposed a motion to dismiss the appeal, and to strike out parts of the record for various alleged defects. This motion was at a subsequent date argued orally in open court. On the 28th day of September, 1899, the cause was argued upon its merits, at which time permission was granted the Roco-Homestake Mining Company, a California corporation, claiming an interest in some of the property in controversy, through the respondent to appear, argue orally, and filed briefs in support of the judgment and order of the district court in behalf of said company. Subsequently, upon the application of the Roco-Homostake Company, leave and granted it to withdraw the appearance and briefs filed in that behalf, upon the showing that it had ceased to have any interest in the controversy. Because of certain objections made to the record by said company at the time of the appearance, the appellants on the 8th day of November, 1899, asked the court to vacate its order of submission before that time made, and grant them permission to withdraw a part of the record for the correction oft he defects claimed by the Roco-Homestake Company to be sufficient to justify the court in dismissing the appeal. The action of the Roco-Homestake Company in withdrawing from the case renders it unnecessary for us to pas upon the appellants' motion to vacate the order of submission, and for leave to withdraw a portion of the record. It will therefore at this time be necessary to determine only those points made against the record by the respondent in her motion of July 3d.
1. It is claimed by the respondent that the appeal should be dismissed because of the failure of the appellants to file the record on appeal on the first day of the April term, 1899, as required by rule 2 of this court (49 Pac. VIII.). It appears as an undisputed fact, upon the showing made by the affidavit of Howell, one of the appellants, that immediately after the appeal had been taken he requested the clerk of the district court to furnish a record on appeal in accordance therewith. In compliance with said demand, the clerk furnished the appellant the papers in said cause, tied up with a string and a rubber band, and without the certificate of the clerk of the court attached thereto, and with out the papers being identified in accordance with the stipulation between the parties. Some time was consumed in an effort by the appellant Howell in having the record properly made up and indexed and certified. The record in its present from was not filed in this court until the 15th day of July, 1899. It will be observed that at the time the respondent interposed her motion to dismiss other was no record on appeal filed in this court. It is provided by subdivision 1, rule 3 (49 Pac. VIII.) That, if the transcript of record be not filed within the time prescribed by rule 2, the appeal may be dismissed during the first week of the term (that is, the term commencing 30 days after the appeal has been perfected or the statement settled as prescribed in rule 2), without notice. The respondent, as to this point, relying upon the provisions of this rule, having failed to interpose her motion at the time required or the term indicated, and having permitted one dear the rule had matured, may have waived her right to make the objecting at the time she did. Be that as it may, she has made no showings, or effort to show, the facts required by subdivision 2, rule 3, to be shown on such motion. It is required by that subdivision, in mandatory terms, that on such motion there shall be presented the certificate of the clerk below, under the seal of the court, certifying the amount and character of the judgment; the date of its rendition; the fact and date of the filing of the notice of appeal, together with the facts and date of service thereof on the adverse party, and the character of the evidence by which said service appears; the fact and date of the filling the undertaking on appeal, and that the same is in due form; the fact and time of the settlement of the statement, if there be one; and also that the appellant has received a duly-certified transcript of the record, or that he has not requested the clerk to certify to a correct transcript of the record, or, if he has made such request, that he has not paid the fees therefor, if the same had been demanded.
Manifestly, the intent of these rules, as gathered from the language used, is to prevent a litigant from delaying proceedings by failing or refusing to file the record an appeal after he has been furnished with the proper transcript, and to prevent delay, where all the steps have been taken necessary to an appeal in the lower court, and the litigant fails or refuses to have made the proper transcript or record on appeal. The facts shown in this case do not bring it within the meaning or intention of the rule. No one of these facts was shown or offered to be shown by the respondent in the manner required by the rule; but, on the other hand, in the same motion respondent in the manner required by the rule; but, on the other hand, in the same motion respondent not only fails to show that an undertaking on appeal in due form had been filed, but attacks the form of the undertaking. The clerk of this court, who is one of the appellants in the action, is criticized for not filing the record on appeal as originally furnished to him, and for returning the same to the clerk of the district court after the undisputed showing that the same was not in the form required by subdivision 3 of rule 4 of this court (49 Pac. VIII.), and against the direct inhibition of subdivision 4 of the same rule, to the effect that a record which fails to conform to the rule shall not be received or filed by the clerk of the court. It is also urged that after the respondents motion was set for hearing the record was taken without leave from this court, and materially changed and altered, by supplying an index and certificate, etc. The record and the showing made otherwise are to the effect that the record was not filed until the 15th day of July, 1899. We do not know of any rule of law or of this court that forbids or prohibits any litigant, be he officer of the court or not, from having his record on appeal furnished him for filing, properly indexed as required by the rule, and properly certified as required by the statute, before filing or offering the same for filing. It does appear from the testimony of the judge before whom the cause was tried that, after the filing of the record, certain letters introduced in evidence--part by the appellants, and part by the respondent--were identified by him a having been used on the hearing of the motion for a new trial. This was done pursuant to a stipulation between the parties submitting the motion for a new trial to the district court. It appears that at the time of the hearing of the motion for a new trial the judge indorse the envelopes in which the letters had been mailed in the proper form, but did not indorse the letters. Afterwards, and before the filing of the record on appeal, the appellants, appearing by George A. Bartlett, Eq., attorney, requested the district judge to indorse the letters introduced in evidence by them. This request was objected to by Peter Green, Eq., one of the attorneys of the respondent, unless certain letters introduced in evidence by the respondent, which were at the time not in the possession of the court or counsel, were also indorse as having been used on the hearing of the motion for a new trial. Upon this showing the district judge refused to indorse any of the letters, but at a subsequent date did indorse these exhibits of both the respondent and appellants at thier request. The appellants have shown by the written stipulation filed in said cause between the parties that it was expressly agreed that the motion for a new trial should be submitted to the trial court upon the engrossed statement, pleadings, records, files, exhibits, and depositions in the case, and that all such records, files, exhibits, and depositions should be considered and referred to as having been used upon the hearing of said motion for a new trial, and should be indorse by the judge as having been so used. It does not appear in any manner that any of the exhibits so indorsed by the district judge were not of those expressly included in the stipulation; and it appears that the failure of the judge to indorse the same was one of those excusable mistaken for which the appellants should not be held, and that the subsequent increment was made with the consent of the respondent, who also asked and received a like favor, in keeping with her stipulation. We are not willing to dismiss the appeal, as asked by the respondent, for this reason.
2. It is claimed by the respondent that the appeal should be dismissed because the notice of motion for a new trial was interposed prematurely. The notice of motion for a new trial was...
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