Taylor v. Taylor

• Decision Date: 31 May 1935
• Docket Number: 3107.
• Citation: 45 P.2d 603,56 Nev. 100
• Parties: TAYLOR v. TAYLOR ET AL. (TWO CASES).
• Court: Nevada Supreme Court

45 P.2d 603

56 Nev. 100

TAYLOR v. TAYLOR ET AL. (TWO CASES).

No. 3107.

Supreme Court of Nevada

May 31, 1935

Appeal from District Court, Washoe County, Second District; B. F Curler, Judge.

Actions by Donald F. Taylor and by Francis B. Taylor against A. C Taylor and others. From the judgment, defendants appeal. On plaintiffs' motions to dismiss the appeal from the judgment, to dismiss the appeal from the order denying defendants' motion for a new trial, and for affirmance of the order denying defendants' motion for a new trial, and for striking of all portions of the record not properly a part of the judgment roll, and on defendants' motion to have the bill of exceptions remanded to the trial court for correction and amendment.

Plaintiffs' motions denied, with directions, and bill of exceptions ordered remanded for correction and amendment.

Milton B. Badt, of Elko, for appellants.

Hawkins Mayotte & Hawkins, of Reno, for respondents.

COLEMAN Justice.

On March 28, 1935, respondent filed notice of motion to the effect that the appeal from the judgment be dismissed; that the appeal from the order denying appellants' motion for a new trial be dismissed; that the order denying appellants' motion for a new trial be affirmed; that all portions of the record not being properly a part of a judgment roll be stricken.

The ground for the motion to dismiss the appeal and affirm the order denying the motion for a new trial is that there is not in the bill of exceptions settled by the court a motion for a new trial. The motion to dismiss the appeal from the judgment is based upon the ground that there is not before us a judgment roll, as contemplated by section 8829, N. C. L.

Subsequent to the filing of the notice of motions mentioned, counsel for appellant filed and served notice of motions to the effect that he would move to have the bill of exceptions in the case remanded to the trial court for correction and amendment, so as to include therein the motion for a new trial which it is claimed was made in the trial court. At the time set for hearing, the respective parties made motions in conformity with their notices of motions.

Counsel for appellant supports his motion by his affidavit to the effect that a motion was made and denied. Counsel for respondent has filed counter affidavits and a certificate of the clerk to the effect that no motion for a new trial was made.

We will consider first the contention of respondents to the effect that there is no judgment roll in the record. The trial judge settled a bill of exceptions which contains all of the documents constituting the judgment roll, and the proceedings, including the evidence. It is true there is nothing in the bill of exceptions designated "judgment roll." We do not think that is necessary. Subsection 1 (b) of section 2, chapter 88, Statutes 1927 (section 9400, N. C. L.), provides: "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."

This disposes of the first contention of counsel for respondent, as we held in Orleans M. Co. v. Le Champ M. Co., 52 Nev. 85, 280 P. 887.

The next question we will consider is appellants' motion to remand the bill of exceptions for amendment and correction. While the showing made by the respective parties is conflicting as to whether or not a motion for a new trial was made in the trial...