Scheeline Banking & Trust Co. v. Stockgrowers' & Ranchers' Bank of Reno

• Decision Date: 05 December 1932
• Docket Number: 2998.
• Citation: 16 P.2d 368,54 Nev. 346
• Parties: SCHEELINE BANKING & TRUST CO. v. STOCKGROWERS' & RANCHERS' BANK OF RENO et al.
• Court: Nevada Supreme Court

16 P.2d 368

54 Nev. 346

SCHEELINE BANKING & TRUST CO. v. STOCKGROWERS' & RANCHERS' BANK OF RENO et al.

No. 2998.

Supreme Court of Nevada

December 5, 1932

Appeal from District Court, Washoe County; Clark J. Guild, Judge.

Two separate suits by the Scheeline Banking & Trust Company against the Stockgrowers' & Ranchers' Bank of Reno John Poco, and others, wherein cross-complaints were filed by defendants, except the first-named defendant, against the last-named defendant. Motion by defendants, except the last-named defendant, to set aside a judgment and to quash an execution. From an order denying the motion, defendants except the last-named defendant, appeal.

Affirmed.

Walter Rowson, of Tonopah, and Fernand de Journel and Harold W Haviland, both of Reno, for appellants.

Thatcher & Woodburn, of Reno, for respondents.

COLEMAN C.J.

This is an appeal by Stockgrowers' & Ranchers' Bank of Reno T. O. Ward, and J. D. Cameron from an order denying a motion to vacate and set aside a judgment and to quash an execution.

On December 31, 1923, the banks entered into a written agreement for the sale by defendant bank to plaintiff bank of all of its assets. Simultaneously with the execution of that agreement, the defendant bank, as principal, and T. O. Ward, J. D. Cameron, and John Poco, as sureties, made, executed, and delivered to plaintiff bank an undertaking in the sum of $40,000 to protect the plaintiff bank against shrinkage of certain assets sold by defendant bank to the plaintiff.

On December 28, 1928, the plaintiff brought suit to recover upon the undertaking mentioned in the sum of $34,946.62, and on February 25, 1929, it brought a second suit to recover $34,946.62. Both suits were against the defendant bank and all of the sureties. To the complaints in the actions mentioned the defendant bank and Poco filed separate answers, and the defendants Ward and Cameron filed a joint answer and cross-complaint against Poco.

After the answers were all filed the plaintiff made a motion to consolidate the two actions. The motion was heard on July 9, 1929, the appellants appearing by their respective counsel, and no objection being made, the court entered the order of consolidation. On the same day and immediately after the entry of the order of consolidation, counsel for plaintiff, pursuant to notice theretofore given, made a motion for judgment on the pleadings against defendants bank, Ward, and Cameron. No objection having been made by counsel for the respective parties mentioned, the court ordered that judgment be entered against the defendants bank, Ward, and Cameron, together with interest thereon from December 31, 1923, until paid, and reserved jurisdiction as to the cross-complaint against John Poco. On the following day, July 10, 1929, the court signed a formal judgment against the parties mentioned, in accordance with the order of the previous day, but made no reference therein to the cross-complaint, nor reservation of jurisdiction to proceed thereon. Written notice of the entry of the formal judgment was served upon counsel for the defendants bank, Ward, and Cameron, on July 26, 1929.

On June 18, 1932, an execution was issued upon said judgment, and on July 6, 1932, the appellants, bank, Ward, and Cameron, who will hereafter be referred to as appellants, since they are the only ones of the defendants who are interested in this action, filed in the lower court a motion for an order vacating the judgment of July 10, 1929, and to quash the execution of June 18, 1932.

Respondent contends that the motion to vacate the judgment and recall the execution came too late. In support of this point counsel rely upon District Court Rule 45, which provides that: "No judgment, order or other judicial act or proceeding *** shall be vacated" unless the movant shall give notice of the motion within six months after such judgment was entered or proceeding had. In support of their contention our attention is called to the following authorities: Daniels v. Daniels, 12 Nev. 118; Lang Syne Gold Mining Co. v. Ross, 20 Nev. 127, 136, 18 P. 358, 19 Am. St. Rep. 337; Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638.

It is further contended that the motion to vacate was not authorized by section 8640, N. C. L., or any other legislative enactment, in support of which we are directed to a consideration of State ex rel. Smith v. Fourth District Court, 16 Nev. 371; Luke v. Coffee, 31 Nev. 165, 101 P. 555; State v. Cent. Pac. Co., 21 Nev. 172, 26 P. 225, 1109.

As remarkable as it may seem, counsel for appellants, in their reply brief, relative to the point made by respondent, say: "Both the preliminary statement, and the statement of facts of respondent are confusing, because they misconstrue the appellants' proceedings and evade the real issues. This appeal is not taken from an order denying a motion to set aside a judgment. This appeal is taken under section 8885, subsection 2, N. C. L. (among other grounds) from a special order denying a motion to quash an execution erroneously issued upon an interlocutory judgment, and to vacate from the records a misleading paper."

The motion, upon which the order appealed from was made, reads: "Now come the defendants, Stockgrowers and Ranchers Bank of Reno, a corporation, T. O. Ward and J. D. Cameron, and move the Court for an order setting aside and vacating the alleged judgment herein, dated July 10th, 1929, and quashing an execution issued against the said defendants in the above case on the 18th day of June, 1932, upon the following grounds: ***"

The notice of appeal is to the effect that the appellants "do hereby appeal to the Supreme Court of the State of Nevada from that certain Order made and entered by the...