Smith v. Lucas

• Decision Date: 29 January 1920
• Docket Number: 2409.
• Citation: 186 P. 674,43 Nev. 348
• Parties: SMITH v. LUCAS et al.
• Court: Nevada Supreme Court

186 P. 674

43 Nev. 348

SMITH v. LUCAS et al.

No. 2409.

Supreme Court of Nevada

January 29, 1920

Appeal from District Court, Washoe County; James A. Callahan, Judge.

Action by William J. Smith against John Lucas and others. From an adverse judgment, M. B. Moore, intervening defendant appeals. Assignment of errors stricken, and judgment affirmed.

Ayres & Gardiner, of Reno, for appellant.

Norcross Thatcher & Woodburn and M. A. Diskin, all of Reno, for respondent.

DUCKER J.

This is an action in replevin. A motion for a new trial was denied in the lower court, but the appeal is taken from the judgment alone by M. B. Moore, who was an intervening defendant.

The record on appeal was filed with the clerk of this court on the 6th day of August, 1919, and thereafter, on the 24th day of August, 1919, appellant filed his assignment of errors with said clerk. On the 13th day of September, 1919 respondent filed a motion for an order striking the assignment of errors, dismissing the appeal, and affirming the judgment. The ground of the motion, as set forth in the notice thereof, is that no assignment of errors was served on respondent, or filed with the clerk of the Supreme Court, within 10 days after the transcript of the record on appeal was filed in this court, as required by law. In this respect section 2 of an act to amend sections 10 and 13 of an act entitled "An act supplemental to and to amend an act entitled 'An act to regulate proceedings in civil cases in this state and to repeal all other acts in relation thereto,' approved March 17, 1911," approved March 16, 1915, approved March 10, 1919, provides:

"Within ten (10) days after the transcript of the record on appeal has been filed in the Supreme Court, the party or parties appealing shall serve upon the adverse parties and file with the clerk of the Supreme Court an assignment of errors, which assignment shall designate generally each separate error, specifying the lines or folios, and the pages of the record wherein the same may be found. Any error not assigned shall not be considered by the Supreme Court. If the party fails to file such assignment within the time limited, no error shall be considered by the Supreme Court. The assignment of errors herein provided for shall be typewritten or printed, paged, and the lines or folios numbered, and the appellant shall furnish three copies thereof for filing in the Supreme Court." St. 1919, p. 55.

Counsel for appellant concede that the assignment of errors was not served or filed within the time required by said section 2, but they take the position that no assignment of errors is necessary in this case. This contention is based upon the assumption (1) that the bill of exceptions is a part of the judgment roll, and that under the rulings of this court in Talbot v. Mack, 41 Nev. 245, 169 P. 25, and Miller v. Walser, 42 Nev. 497, 181 P. 437, no errors need be assigned which appear upon the face of the judgment roll; (2) that, as the only errors assigned are insufficiency of evidence to justify the decision, and that the decision is against law, section 13 of the act of 1915 is not applicable, for the reason that the only errors in law occurring at the trial and excepted to by the party making the application are contemplated by this section.

We cannot acquiesce in either of these contentions and think that they were decided adversely to appellant's view in the case of Coffin v. Coffin, 40 Nev. 345, 163 P. 731, in which the appeal was dismissed for failure to serve and file an assignment of errors, within the time allowed by section 13 of the act of 1915. The only substantial change in the section as amended by the act of 1919 is that, in the latter act the time in which an assignment of errors must be served and filed begins to run after the transcript of the record on appeal has been filed in the Supreme Court, instead of from the time the appeal has been taken from the order or judgment, and 10 days is allowed, instead of 20, as in the former act.

In so far as the question on motion to dismiss is concerned, there is no distinction in principle between the case of Coffin v. Coffin and the case at bar. Both were tried on the merits in the district court, and in each a motion for a new trial was made and denied. The only difference is that in the former case the appeal was taken from the judgment and order of the court denying the motion for a new trial, while in the case under consideration the appeal is from the judgment alone. This difference can have no bearing on the question before us. In each case the bill of exceptions was prepared, served, filed, and settled and annexed to a copy of the judgment roll, after a motion for a new trial was denied. As previously stated, the assignment of errors, in the instant case, is based on the grounds that the evidence is insufficient to justify the decision and that it is against law. A like assignment of errors was filed in the Coffin Case, with the additional assignment that the complaint did not state facts sufficient to constitute a cause of action. We see no room for distinction between the two cases; but as the points made in this case were not raised or discussed in Coffin v. Coffin, and as they have been ably presented and argued by counsel for appellant, we deem them worthy of careful consideration, especially in view of this court's attitude against deciding a case otherwise than on its merits.

The cases of Talbot v. Mack and Miller v. Walser, supra, are easily distinguishable from the case at bar. In each of these cases the appeal was from an order sustaining a demurrer to the complaint and judgment thereon, while in the instant case the appeal was taken after a trial on the merits in the district court. In both of the former cases it was held that, where the appeal is upon the judgment roll alone, the errors appearing upon the face of the judgment roll need not be presented by an assignment of errors. It was not held or intimated in either of these cases that a bill of exceptions, as contemplated by the act of 1915, necessarily becomes a part of the judgment roll, obviating the requirement of an assignment of errors. Such a ruling would render section 13 of the act requiring an assignment of errors of no force and effect in any case, manifestly against the plainly expressed mandate of the statute. True, in Talbot v. Mack this court recognized that the bill of exceptions taken to the order sustaining the demurrer, and allowed by the trial judge, and filed on the date of the entry of judgment, was a part of the judgment roll. Such a bill of exceptions is made a part of the judgment roll by virtue of subdivision 2 of section 331 of the Civil Practice Act, which prescribes what shall constitute the judgment roll, in cases where the complaint is answered by any defendant. This part of the section reads:

"In all other cases, the pleadings, a copy of the verdict of the jury, or finding of the court or referee, all bills of exception, taken and filed. ***"

Counsel insist that the bill of exceptions in this case, and in all cases when properly taken and allowed, becomes a part of the judgment roll by force of the foregoing section, requiring the clerk to include "all bills of exceptions taken and filed" in the roll. We cannot concede this interpretation. This section prescribes a definite time when the clerk shall make up and file the judgment roll, and designates the papers to be then included therein. It reads:

"Immediately after the entry of judgment, the clerk must attach together and file the following papers, which constitute the judgment roll."

Then follows a designation of the papers. A bill of exceptions, or more than one, may or may not have been taken and filed at or prior to the time this act of assembling the judgment roll is required to be done. If so taken and filed, all are required to be included therein. A bill of exceptions which may thereafter be settled and allowed in accordance with the act of 1915 becomes no part of the judgment roll, but must be annexed to a copy thereof, if the appeal be from a judgment, as provided in section 11 of said act. It appears from the record in this case that the bill of exceptions was settled and allowed long after the entry of judgment, and after a motion for a new trial had been denied. Though properly a part of the record on appeal, it is no part of the judgment roll.

We come, now, to the other phase of the contention; that is that no assignment of errors is necessary, because the provision requiring it is inapplicable to this case, for the...