Taylor v. Taylor
| Decision Date | 06 December 1938 |
| Docket Number | 3107. |
| Citation | 84 P.2d 709,59 Nev. 67 |
| Parties | TAYLOR et al. v. TAYLOR (two cases). |
| Court | Nevada Supreme Court |
Appeal from District Court, Second District, Washoe County; B. F Curler, Judge.
Actions by Donald F. Taylor, and by Francis B. Taylor, against A. C Taylor and others. From the judgments, defendants appeal. On plaintiffs' motions to strike and dismiss.
Judgment in accordance with opinion.
Milton B. Badt, of Elko, for appellants.
Prince A. Hawkins and Hawkins, Mayotte & Hawkins, all of Reno, for respondents.
This case is before us for the third time on motions to strike and dismiss. See 56 Nev. 100, 45 P.2d 603, and 58 Nev. 149, 72 P.2d 1105.
There are three separate and distinct documents comprising the motions now before us. The one we will first consider is a motion to strike portions of the bill of exceptions.
The next motion which we will consider is the one directed to the document entitled "Order correcting and amending minutes and records".
We will take up for consideration finally the motion to strike a document filed in this court February 20, 1937, entitled "Submission of Transcript of Proceedings in District Court in Opposition to Sundry Motions to Strike and Motion to Dismiss Appeal".
On January 4, 1938, counsel filed a stipulation herein to the effect that the record on appeal "may be, and the same hereby is deemed to be amended and supplemented by adding thereto, and incorporating therein", the order of the trial court of October 22, 1934, extending the time of appellant in which to file a bill of exceptions to and including November 1, 1934, and that respondent might renew his motions, in pursuance of the order of this Court as made in said last mentioned opinion.
Thereafter counsel for respondent made motions to strike and to dismiss. The motions thus made were identical with the motions made in the early part of 1937, which were before us and under consideration when we filed our last opinion in this case, on November 4, 1937.
The record now before us is a bill of exceptions which contains all of the documents which may be comprised in a judgment roll, plus the evidence in the case and other documents.
On February 15, 1935, the trial judge settled the bill of exceptions.
The papers constituting the judgment roll being embraced in the bill of exceptions, they are entitled to be considered as though filed in the case as a separate document (Taylor v. Taylor, 56 Nev. 100, 45 P.2d 603), and if the bill of exceptions, as amended, was settled in apt time, it cannot be stricken and must be considered in determining the merits of the case. In view of the stipulation of January 4, 1938 whereby the order of the trial court of October 22, 1934, extending the time for the filing of a bill of exceptions to November 1, 1934, is deemed to be incorporated therein, it appears on the face of the bill of exceptions that it is complete in every detail. If this is true, this Court has acquired jurisdiction to hear and determine this case on the merits.
We feel, in view of the fact that the papers constituting the judgment roll are in a bill of exceptions, properly settled, that we would be justified in denying the motions without further consideration.
But it is contended by counsel for movant that the order of October 22nd is an ex parte order, and that no copy thereof was served upon respondent, hence the bill of exceptions should be stricken. In support of this contention, our attention is directed to District Court Rule 36 and to the cases of O'Neill v. Vasiliou, 51 Nev. 236, 274 P. 1, and Beco v. Tonopah Extension M. Co., 37 Nev. 199, 141 P. 453.
The court rule in question provides that in case of objections no ex parte order shall be valid unless written notice thereof is promptly given to such...
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