Squires v. Mergenthaler Linotype Co.

• Decision Date: 15 February 1940
• Docket Number: 3294.
• Citation: 99 P.2d 20,60 Nev. 62
• Parties: SQUIRES v. MERGENTHALER LINOTYPE CO.
• Court: Nevada Supreme Court

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.

Respondentplaintiff 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 courtdefendant 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.

Section 31 of the 1937 New Trials and Appeals Act, Statutes of Nevada, 1937, Chap. 32, p. 53, at p. 63, provides in part: "At any time after the filing of the complaint and not later than twenty (20) days after final judgment ***, any party to an action or proceeding may serve and file a bill of exceptions to such judgment or any ruling, decision, order, or action of the court, which bill of exceptions shall be settled and allowed by the judge or court, or by stipulation of the parties ***."

Section 32 of said act reads as follows: "Any adverse party may object to the allowance and settlement of any bill of exceptions herein provided for within five (5) days after the service of the same, by serving upon the opposite party and filing in said court a statement specifically pointing out wherein said bill does not state the true facts, or wherein the same omits any material fact necessary to explain or make clear any ruling, decision, or action of the court.Such objection shall be heard and determined by the court within five (5) days thereafter, and upon such hearing the court shall designate in what respect said bill is incorrect or untrue, or fails or omits to state the true facts, and shall order and direct that such bill be corrected in accordance with said determination, and engrossed so as to contain the true facts as herein required, and when so engrossed said bill must be allowed and settled as in this act provided, and when so settled shall become and be a part of the record of said action or proceeding.If the objections of the adverse party are disallowed, then such bill as originally filed must be immediately settled and allowed as by this act required."

In the instant...