Talbot v. Mack

• Citation: 169 P. 25,41 Nev. 245
• Decision Date: 07 December 1917
• Docket Number: 2295.
• Parties: TALBOT v. MACK.
• Court: Supreme Court of Nevada

169 P. 25

41 Nev. 245

TALBOT v. MACK.

No. 2295.

Supreme Court of Nevada

December 7, 1917

Appeal from District Court, Washoe County; Mark R. Averill, Judge.

Action by G. F. Talbot against C. E. Mack. Judgment for defendant and plaintiff appeals. Affirmed.

G. F Talbot, of Carson City, and Sardis Summerfield, Miller & Mashburn, and Robert Richards, all of Reno, for appellant.

Mack & Green, Thomas E. Kepner, and A. F. Lasher, all of Reno, for respondent.

McCARRAN C.J.

This was an action in tort instituted by appellant, as plaintiff against respondent for damages claimed to have been sustained by appellant by reason of libel. The demurrer to appellant's complaint being sustained, and appellant having declined to amend, judgment was entered against him in favor of respondent. From the judgment thus entered and from the order of the trial court in sustaining the demurrer, appeal is taken to this court.

We are first concerned with the matter of a motion to dismiss the appeal upon the ground that no assignment of errors was served or filed in this court within the time prescribed by law. In this respect respondent relies on section 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 acts in relation thereto,' approved March 17, 1911," approved March 16, 1915, and found in Session Acts of 1915 at page 164. The section reads as follows:

"Within twenty days after any appeal has been taken from any order or judgment, the party or parties appealing shall serve 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 page and lines 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, paged, and the lines numbered, and the appellant shall furnish three copies thereof for filing in the Supreme Court."

The record as it is before us discloses a total failure on the part of appellant to serve or file any assignment of errors, and appellant seeks by separate motion in this court to have an order made permitting him to file his assignment of errors nunc pro tunc. With the last-mentioned motion it will, in our judgment, be unnecessary for us to deal, in view of the position that we shall here take and which we deem proper under the statute.

Section 11 of the act of 1915, referred to, is as follows:

"The original bills of exceptions herein provided for, together with a notice of appeal and the undertaking on appeal, shall be annexed to a copy of the judgment roll, certified by the clerk or by the parties, if the appeal be from the judgment; if the appeal be from an order, such original bill shall be annexed to such order, and the same shall be and become the record on appeal when filed in the Supreme Court. A party may appeal upon the judgment roll alone, in which case only such errors can be considered as appear upon the face of the judgment roll."

As to what constitutes the judgment roll, our Civil Practice Act, section 5273, Rev. L. (section 331, Civil Practice Act), provides:

"Immediately after entering the judgment, the clerk must attach together and file the following papers, which constitute the judgment roll: (1) In case the complaint is not answered by any defendant, the summons, with the affidavit or proof of service; the complaint with memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment. *** (2) In all other cases, the pleadings, a copy of the verdict of the jury, or finding of the court or referee, all bills of exceptions taken and filed, and a copy of any order made on demurrer or relating to the change of parties, and a copy of the judgment. ***"

It was not necessary, in view of the specific provisions of the several sections of our statute pertaining to practice on appeals, for the appellant in this case to file or serve an assignment of errors as contemplated by section 13 of the Practice Act of 1915. The appeal here taken is from the order of the district court sustaining the demurrer to appellant's complaint and from the judgment entered pursuant to appellant's failure to amend; hence under subdivision 2 of section 5273, Rev. L., all of the matters pertaining to the proceedings in the trial court, so far as those proceedings affect the standing or rights of appellant, are properly here embraced within the judgment roll as certified by the clerk of the district court. Respondents, in furtherance of their motion to dismiss plaintiff's appeal, refer to the decision of this court in the case of Coffin v. Coffin, 163 P. 731, wherein we dismissed the appeal upon a motion made for that purpose for the reason that appellant had failed to comply with section 13 of the Practice Act of 1915, inasmuch as he had failed to serve or file his assignment of errors within time. That case is not controlling in the matter at bar. It is distinguished from the case under consideration inasmuch as there the appeal was sought to be taken from the judgment entered after trial on the merits and from the order overruling appellant's motion for a new trial. Here the appeal is from an order sustaining a demurrer. In the Coffin Case the errors, if any, were not contended for as pertaining to matters properly appearing in the judgment roll. In the matter at bar the very error contended for, and indeed the only error contended for, is the order of the trial court sustaining the demurrer and pursuant to section 5273, Rev. L., is properly embraced within and is on the face of the judgment roll. Not only that, but the section of the Code last referred to provides that "all bills of exceptions taken and filed" shall be a part of the judgment roll; and in the judgment roll as it is before us we find the bill of exceptions taken to the order sustaining the demurrer and the same duly allowed by the trial judge and filed on the date of the entry of judgment.

If the matters or proceedings which appellant sought to have reviewed by this court on appeal were not properly embraced within the judgment roll, then the motion to dismiss should prevail under the doctrine of the Coffin Case, supra. The case at bar falls directly within the provision of section 11 of the Practice Act of 1915, providing for the consideration of errors which appear upon the face of the judgment roll when appeal is from the judgment alone. Under this provision of the statute it is manifest that the intendment of the lawmakers was to require no assignment of errors in a case such as this, where the order appealed from and the error complained of were all embraced within matters properly belonging to the judgment roll and were brought to this court in that form. Indeed, if it were otherwise it would at most only require a repetition, by way of assignment of error, of that which was already excepted to and assigned as error in the bill of exceptions contained in the judgment roll. This court has held (Peers v. Reed, 23 Nev. 404, 48 P. 897) that on an appeal taken from the judgment alone, where there is no statement or bill of exceptions in the record, there will be a consideration only of the record constituting the judgment roll. It is in the record constituting the judgment roll that the very error relied upon by appellant is brought to this court. Hence we conclude that no assignment of errors as contemplated by section 13 of the Civil Practice Act of 1915 is necessary or required in such a case.

Viewing the matter as we do, it becomes unnecessary for us to determine the question as to the right of appellant to an order nunc pro tunc. Suffice it to say in this respect, however, that we find it to be a rule supported by eminent authority that the object and purpose of a nunc pro tunc order is to make a record speak the truth concerning acts already done. Without determining the question here, we deem it sufficient to intimate that an order nunc pro tunc cannot be made use of or resorted to to supply omitted action. Wight v. Nicholson, 134 U. S. 136, 10 S.Ct. 487, 33 L.Ed. 865; Hyde v. Curling, 10 Mo. 359; Hickman v. City of Fort Scott, 141 U.S. 415, 12 S.Ct. 9, 35 L.Ed. 775; Wyllie v. Heffernan, 58 Mo.App. 657; State v. White, 16 Ind.App. 260, 44 N.E. 589.

This brings us to a consideration of the principal question here involved, namely, the action of the trial court in sustaining the demurrer to appellant's complaint.

The complaint, by way of colloquium or inducement, averred the standing of appellant in the community, relating the fact of his having conducted and demeaned himself with honesty, integrity, and fidelity, enjoying the confidence and esteem of the people of the state of Nevada to a remarkably high degree; of his having held positions of honor and trust within the state; a district judge of one of the judicial districts for a period of 12 years, a justice of the Supreme Court of the state for an equal period, during all of which time he had "never been accused or suspected of having been guilty of any dishonesty or of any lack of integrity or fair dealing, which would injure his reputation or good standing." The complaint relates:

"That during all of the time between the 20th day of March, 1911, and the 7th day of March, 1916, said plaintiff (appellant here) was a director and the president and one of the members of the executive committee of Nevada Fire Insurance Company, a corporation, organized and existing under and by virtue of

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