Tardy v. Tarbell

• Decision Date: 07 December 1932
• Docket Number: 2995.
• Citation: 16 P.2d 656,54 Nev. 342
• Parties: TARDY et al. v. TARBELL et al.
• Court: Nevada Supreme Court

16 P.2d 656

54 Nev. 342

TARDY et al. v. TARBELL et al.

No. 2995.

Supreme Court of Nevada

December 7, 1932

Appeal from District Court, Clark County; Wm. E. Orr, Judge.

Action by E. R. Tarbell against the Black Canyon Holding Company. From an order refusing to quash and recall execution, Ella B Tardy and another move for an appeal. On motion to dismiss appeal.

Appeal dismissed.

A. A Hinman, of Las Vegas, for appellants.

Noland & Noland, of Las Vegas, for respondents.

DUCKER J.

This is a motion to dismiss the appeal. The appeal was taken from an order of the Eighth judicial district court refusing to quash and recall the execution in the case of E. R. Tarbell Plaintiff, v. Black Canyon Holding Company, a Corporation Defendant, No. 3107. Application for the order was made by the plaintiff in another action in said court, to wit, the case of Ella B. Tardy, Plaintiff, v. E. R. Tarbell, et al. Defendants, No. 3495. The appeal from said order was taken by said Ella B. Tardy and her attorney in said last-named case, A. A. Hinman, who was also her attorney on application for said order. Prior to the making of the application for the order, a writ of attachment was issued out of case No. 3495 levied upon the indebtedness evidenced by the judgment in case No. 3107. Thereafter, to wit, on February 4, 1932, judgment was rendered and entered in case No. 3495 in favor of the plaintiff and against the defendant, E. R. Tarbell, for the sum of $3.635, which said judgment remains unpaid and unsatisfied in whole or in part. On the 24th day of February, 1932, execution was issued in case No. 3107 and levied upon certain real property belonging to the defendant therein, and notice of sale under said execution given for the 20th day of April, 1932. On the 9th of April, 1932, Ella B. Tardy, plaintiff in case No. 3495, served upon Noland & Noland, attorneys for plaintiff in case No. 3107, notice of her motion to recall and quash said execution. Notice of said motion was not served upon plaintiff in that action.

On the 16th day of April, 1932, said E. R. Tarbell, appearing specially, objected to the hearing of the said motion upon the ground that he had not been served with notice of said motion, and that the court was without jurisdiction to hear the same. The objection was heard and the order made, which has been appealed from as previously stated.

We think the order refusing to quash and recall said execution is not appealable. Section 8885, N. C. L., provides in part that an appeal may be taken "from any special order made after final judgment." Appellant contends that this provision is without any limitation or restriction. But if this were true, then a party to the litigation or one not a party might continue the litigation to an unreasonable extent. As stated in Weed v. Weed, 55 Mont. 599, 179 P. 827, 828, "there would never be an end to litigation if either party sought to harass or annoy the other."

In the above case the court approved the construction of a provision of the Montana Code, which is the same as the provision under consideration, made by the Supreme Court of Montana in the case of Chicago, M. & St. P. Ry. Co. v. White, 36 Mont. 437, 93 P. 350, 351. It was stated that the earlier decision had the support of the authorities generally, citing Griess v. State Inv. & Ins. Co., 93 Cal. 411, 28 P. 1041; Kaltschmidt v. Weber, 136 Cal. 675, 69 P. 497; 3 C.J. 519.

In construing the statute, the court in Chicago, M. & St. P. Ry. Co. v. White, supra, said: "The special order, made after final judgment, from which an appeal lies, must be an order affecting the rights of some party to the action, growing out of the judgment previously entered. It must be an order affecting rights incorporated in the judgment."

This is an expression of the...