Rogers v. Thatcher
| Decision Date | 13 April 1953 |
| Docket Number | No. 3735,3735 |
| Citation | 70 Nev. 98,255 P.2d 731 |
| Parties | ROGERS v. THATCHER. |
| Court | Nevada Supreme Court |
Royal S. Stewart, Reno, for appellant.
Oliver C. Custer and Louis Mead Dixon, Reno, for respondent.
This is the first case to reach this court requiring an interpretation of the Nevada Rules of Civil Procedure, N.R.C.P., which became effective January 1, 1953.
The district court entered judgment in favor of defendant and thereafter denied plaintiff's motion for a new trial. Plaintiff appealed from the judgment and from the order. Respondent has moved to dismiss the appeal from the order denying new trial on the ground that the notice of appeal from such order was not served or filed within the period of sixty days as required by our statute. N.C.L.1931-1941 Supp. § 9385.60 and 9385.61. 1. The order denying new trial was entered July 18, 1952. Notice of such order was served on defendant July 24, 1952. The last day for notice of appeal from said order was September 22, 1952. Plaintiff served and filed her notice of appeal from the judgment and from the order denying new trial on November 10, 1952--well within the six months' statutory period for appeal from the judgment but some 49 days after the expiration of the statutory time for appeal from the order denying new trial. This court has on numerous occasions held that service of the notice of appeal within the prescribed statutory time is mandatory and jurisdictional. In re Powell's Estate, 63 Nev. 19, 158 P.2d 545. There can accordingly be no question but that the appeal from the order denying new trial must be dismissed.
2. This however leaves us with a further problem, as appellant contends that under the present Nevada Rules of Civil Procedure, N.R.C.P. the notice of the appeal from the order denying new trial may be considered surplusage; that under Rule 72(a) the Supreme Court may on appeal from the judgment consider errors of law and the sufficiency of the evidence without a motion for new trial; and that under Rule 86 such situation applies to the present appeal because the same was a proceeding in an action then pending.
Rule 72(a) reads as follows:
Rule 86 reads as follows:
Both parties agreed during the oral argument in open court that the present proceedings called for a pronouncement by this court as to the extent of its review upon the appeal from the judgment.
That part of Rule 86 making the new rules applicable to 'all further proceedings in actions then pending' may not, in our opinion, be interpreted as reviving or restoring a right of appeal that did not exist before the new rules took effect. Appellant may therefore not be advantaged by the provision of Rule 72(a) authorizing this court co consider errors of law and the sufficiency of the evidence on the appeal from the judgment alone. A similar situation arose on several occasions in the federal courts. The federal rules became effective September 16, 1938, and Federal Rule 86(a), 28 U.S.C.A. corresponds with Rule 86, N.R.C.P. as governing further proceedings in pending actions. In Standard Accident Ins. Co. v. United States, etc., 1 Cir., 103 F.2d 501, 503, appellant sought the advantage of Rule 74 providing that any one or more parties...
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