Squires v. Mergenthaler Linotype Co., 3294.
| Citation | 99 P.2d 20, 60 Nev. 62 |
| Case Date | February 15, 1940 |
| Court | Supreme Court of Nevada |
99 P.2d 20
60 Nev. 62
SQUIRES
v.
MERGENTHALER LINOTYPE CO.
No. 3294.
Supreme Court of Nevada
February 15, 1940
Appeal from Eighth Judicial District Court, Clark County; Wm. D. Hatton, Judge.
Foreclosure proceeding by the Mergenthaler Linotype Company against Charles P. Squires, publisher Las Vegas Age. From a decree for the plaintiff, defendant appeals. On motion to dismiss the appeal.
Motion denied.
A. A. Hinman, of Las Vegas, for appellant.
Louis Cohen, of Las Vegas, for respondent.
TABER, Chief Justice.
Respondent, plaintiff in the court below, has moved this court to dismiss defendant's appeal; to strike from the files the transcript on appeal; to strike the purported bill of exceptions; and to affirm the judgment attempted to be appealed from. The motion is based chiefly upon two grounds: (1) That the transcript on appeal was not served or filed within the time prescribed by law; (2) that the purported bill of exceptions, together with the notice of appeal and undertaking on appeal, were not annexed to a copy of the judgment roll certified by the clerk or the parties.
Rule II of this court provides: "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." The transcript was not filed within thirty days after the appeal had been perfected, but was filed within thirty days after the bill of exceptions had been settled. Respondent, however, contends that a bill of exceptions was neither proper nor permissible in this case, and for that reason the act of the trial court in settling the purported bill of exceptions could not operate to extend the time for filing the transcript beyond thirty days after the perfecting of the appeal.
In the district court defendant demurred to plaintiff's complaint in foreclosure upon the ground that it did not state facts sufficient to constitute a cause of action, and upon the further ground that it appeared upon the face of the complaint that the action was not commenced within the time limited by law. The demurrer was overruled, and defendant given time to answer; but defendant elected to stand on his demurrer, and on June 12th, 1939, the default of defendant for failure to answer the complaint within the time allowed by the court was entered. Final judgment, being a decree of foreclosure and order of sale, was filed July 18th, 1939. Defendant served copy of notice of appeal from the judgment on July 18th, 1939, and filed the notice of appeal and undertaking on appeal on July 20th, 1939. He served and filed his proposed bill of exceptions on July 27th, 1939, which was within the time allowed by law.
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Hotels El Rancho, Inc. v. Pray, 3471.
...advantage of the provisions of said Rule II. Styris v. Folk, 62 Nev. 208, 139 P.2d 614, 146 P.2d 782; Squires v. Mergenthaler Linotype Co., 60 Nev. 62, 99 P.2d 20. Furthermore, the affidavit shows that the [64 Nev. 25] appeal has been taken and presented in good faith, that the delay has no......
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Henry McCleary Timber Co. v. Sewell, 3912
...respondent to move to dismiss until after the default had been cured by tardy filing of the record. Squires v. Mergenthaler Linotype Co., 60 Nev. 62, 99 P.2 20; Styris v. Folk, 62 Nev. 208, 130 P.2d 614, 146 P.2d 782; Hotels El Rancho v. Pray, 64 Nev. 22, 176 P.2d 236. Cf. Goodhue v. Shedd,......
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Styris v. Folk, 3393.
...on appeal, respondent waived his right to take advantage of the provisions of said Rule II. Squires v. Mergenthaler Linotype Co., 60 Nev. 62, 99 P.2d 20. We think the decision in the above cited case is sound and should be adhered to. The motion to dismiss is denied. TABER and DUCKER, JJ., ......