State ex rel. Dept. of Highways v. Pinson

• Decision Date: 12 November 1948
• Docket Number: 3546.
• Citation: 199 P.2d 631,65 Nev. 510
• Parties: STATE ex rel. DEPARTMENT OF HIGHWAYS v. PINSON et al.
• Court: Nevada Supreme Court

199 P.2d 631

65 Nev. 510

STATE ex rel. DEPARTMENT OF HIGHWAYS v. PINSON et al.

No. 3546.

Supreme Court of Nevada.

November 12, 1948

Appeal from District Court, Sixth Judicial District, Humboldt County; Clark J. Guild, Presiding Judge.

Action by the State, on relation of its Department of Highways against Victor A. Pinson and others. From the judgment defendants appeal. On plaintiff's motion on defendants' appeal to strike out portion of transcript on appeal, and on defendants' motion to amend certificate of county clerk certifying to papers and documents included in the record on appeal.

Order in accordance with opinion.

Carville & Carville, of Reno for appellants.

Alan Bible, Atty. Gen., and Geo. P. Annand and Hoomer Mooney Deputy Attys. Gen., for respondents.

HORSEY, Justice.

In this case two motions are before this court, which were argued by respective counsel, and submitted, on the 8th day of September, 1948. The respondent has moved to strike from the Transcript on Appeal, filed on the 6th day of July, 1948, by the appellants, 'so much thereof that purports to be the Judgment Roll in said case and so much thereof that purports to be a transcript of the testimony, minutes of the Court, opinion and decision, or which purports to be a Bill of Exceptions in said matter'.

The appellants have moved to amend the certificate of J. W. Davey, County clerk and ex officio clerk of the Sixth Judicial District Court of the State of Nevada, in and for the County of Humboldt, certifying to twenty-two papers and documents included in the record on appeal, such proposed amendment being to insert, as line 10, in folio 3, on the second page of said certificate, the following: '23 Transcript of Evidence; and in line 14, folio 3, after the figures '4459', and before the word 'hereinbefore', the following: 'including a copy of proceedings and transcript of testimony taken at the trial of said cause'.

The respondent's motion to strike, above mentioned, has attached to it the certificate of the said J. W. Davey, clerk of said court, certifying, among other things, 'that folios 123, 124 and 125 of the transcript of Record on Appeal, filed herein and certified, correctly records the minutes of this Court respecting the order denying a new trial in said actions; that no document purporting to be a Bill of Exceptions was filed in the District Court in this case; that the Court reporter certified the Transcript of Testimony on two separate trials and hearings in said matter but did not certify to anything else or to any minutes of Court, or opinion and decision to the Court, so for as is shown by the files and papers in said case in my office; that my files further show on file the following Notice of Order and proof of service thereof, to wit: * * *'. There is inserted by the clerk at this point, in haec verba, a certified copy of the notice of order, the order referred to being the certain order made by the Sixth Judicial District Court of the State of Nevada, in and for the County of Humboldt, the Hon. Clark J. Guild, district judge presiding, on the 3rd day of May, 1948, denying defendants' (appellants') motion for a new trial, and a certified copy of the affidavit of mailing, on the 3rd day of May, 1948, of a certified copy of the said notice of the order denying the motion for a new trial, addressed to Messrs. Carville & Carville, attorneys at law, Reno, Nevada, attorneys for defendants, such affidavit containing the necessary facts to show due notice, to said attorneys for defendants, of the denial of such motion for a new trial, on said 3rd day of May, 1948.

The grounds of respondent's said motion to strike are stated in the notice of motion as follows:

'1. That the papers purporting to constitute the Judgment Roll are not properly certified and the so-called Transcript of Testimony is not thereby incorporated in the record on appeal as a part of the Judgment Roll or at all.

'2. That the Transcript of Testimony certified by the court reporter is not a Bill of Exceptions nor a part of the record on appeal; that the same has not been settled by the Court or by any stipulation of certificate at all within 20 days after service of written notice of decision denying new trial or at all; that no extension of the statutory time to propose such Bill of Exceptions to the trial Court or to settle the same was made or entered within the said 20- day statutory period, or thereafter, or at all.'

Referring to ground 1, it appears from the record that the clerk of the Sixth Judicial District Court, in certifying to the twenty-two papers and documents to which the certificate is attached, did not undertake to classify them as to whether or not they constituted the judgment roll, but certified to them merely as being full, true and correct copies of the respective originals of which they purported to be copies. In other words, he did not segregate the papers or documents constituting the judgment roll, and certify to those separately from the other papers, and attach his certificate that such papers or documents were full, true and correct copies of the originals, and, also, that such papers, naming them, constituted the judgment roll, but, instead, he certified, in substance, in his certificate attached to such twenty-two papers and documents, merely that they were full, true and correct copies of the original documents. In the latter instance, the language used by the clerk is as follows: 'and I further certify that the hereinbefore mentioned Documents consist of 46 typewritten pages, are full, true and correct copies of the original documents on file and of record in my office in Suit No. 4459, hereinbefore referred to.'

In determining whether this certification is sufficient, as to the judgment roll, the language of our statute, Section 42 of the New Trials and Appeals Act of 1937, same being Section 9385.92 of N.C.L.1931-1941 Supp., Vol. 2, is significant. Such section is as follows:

'§ 9385.92. WHEN JUDGMENT ROLL PART OF BILL OF EXCEPTIONS. § 42. Whenever the judgment roll, or the papers making up the judgment roll, shall be incorporated in a bill of exceptions, it shall not be necessary to take to the supreme court any separate copy of the judgment roll, but in all such cases the judgment roll, or the papers making up the judgment roll, shall be certified by the clerk of the court in which the action or proceeding is pending, or by the parties or their attorneys.' (Emphasis added.)

There is no reason why more should be required as to certification in a case in which the judgment roll is not made part of the bill of exceptions but is incorporated in the record or transcript upon appeal, as in the instant case. What is desired is sufficient assurance of the authenticity of the documents, and nothing would be added in that respect by requiring the clerk, or the parties or their attorneys, in certifying, to state a conclusion of law, namely, that the papers or documents certified to constitute the judgment roll. Even if such certifying party, or parties, did so certify, their conclusion would not be binding upon the court, but if any issue were properly presented involving the question of what papers or documents did or did not constitute the judgment roll, or whether or not a particular document or paper was properly included therein, it would be, clearly, the province and the duty of the court having jurisdiction of the action or proceeding in which the question arose, to determine same, in accordance with the statute, Section 331 of the Nevada Civil Practice Act, same being N.C.L.1929, Vol. 4, Section 8829, which specifies precisely what papers constitute the judgment roll. So we think the papers purporting to constitute the judgment roll were sufficiently certified.

The next question posed, as part of ground 1 of respondent's motion to strike, is that 'the so-called Transcript of Testimony is not thereby incorporated in the record on appeal, as a part of the Judgment Roll * * *'. (Emphasis added.) This refers, doubtless, to the 'Transcript of Testimony and Proceedings', certified by Gloria Germain, the court reporter of the Sixth Judicial District Court, and incorporated in the 'Transcript on Appeal'. It is true that such transcript, certified by the court reporter is not, by the above mentioned certificate of J. W. Davey, clerk of the Sixth Judicial District Court, included with, or as one of, the documents or papers certified by him, as part of the judgment roll or otherwise, and appellants' pending motion (perhaps suggested by the ground of respondent's motion being presently considered) is to include such transcript within said certificate.

Our statute, Section 31 of the New Trials and Appeals Act of 1937, being N.C.L.Supp. 1931-1941, Vol. 2, Section 9385.81, in subdivision 1, provides:

'A transcript of the proceedings, certified by the court reporter, appointed by the court, under authority of law, or by agreement of the parties, to be a full, true and correct transcript thereof, may be served and filed, and when so filed shall be and constitute the bill of exceptions of the proceedings relating to the point or points involved, as therein set forth, without further stipulation or settlement by the court; provided, however, that on motion duly noticed, the court may at any time correct any error in such transcript by appropriate amendment thereto.'

And said Section 331 of the Civil Practice Act, being N.C.L.1929 Vol. 4, Section 8829, providing what papers shall constitute the judgment roll, includes 'all bills of exceptions taken and filed'. But in the case of Smith v. Lucas, 43 Nev. 348,186 P. 674, in the opinion by Mr. Justice Ducker, it is clearly held that a bill of exceptions, filed after the...