Ward v. Pittsburg Silver Peak Gold Mining Co.
| Decision Date | 07 December 1915 |
| Docket Number | 2120. |
| Citation | 153 P. 434,39 Nev. 80 |
| Parties | WARD v. PITTSBURG SILVER PEAK GOLD MINING CO. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Thomas F. Moran, Judge.
On rehearing. Judgment and order affirmed.
For former opinion, see 148 P. 345. See, also, 143 P. 119.
Samuel Platt, of Carson City, and George H. Martinson, for appellant.
Dixon & Miller, of Reno, for respondent.
On granting the petition for rehearing in this case, the court made the order:
"That appellant show, by the certificate of the trial judge or by affidavit, subject to counter affidavits upon the part of respondent, whether the alleged bill of exceptions or memorandum of errors, as the case may be, was settled or allowed by the trial judge in the presence of plaintiff or his counsel, and, if not so settled in the presence of the plaintiff or his counsel, what notice of such settlement or allowance, if any, was given."
Pursuant to this order, the appellants filed the certificate of the trial judge, which reads as follows:
"Be it remembered that, on the 26th day of January, A. D. 1914 at the hearing of the motion for a new trial, in the above-entitled cause, counsel for defendant presented to the court a memorandum of errors and exceptions on the hearing of said motion for a new trial, and which said memorandum of errors and exceptions are included in the judgment roll and are numbered 1 to 78, inclusive, the clerk's certificate being added thereto in addition to said pages, and that said memorandum of errors and exceptions were signed on said date on the hearing of said motion for a new trial, and allowed by the court, but said memorandum of errors was never settled as a bill of exceptions under section 5343, but was presented to the court on the day of the hearing of the motion for a new trial, and after the court asking of counsel for the plaintiff if he had compared the memorandum of errors presented to the court, and the court then and there, at the time of the hearing of the motion for a new trial, allowed and settled said memorandum of errors or exceptions by signing them; that by affixing my signature I then and there intended to both allow and settle the memorandum of errors for the hearing of the motion for a new trial."
The record discloses that the only motion made before the trial court for a new trial was based on that instrument found in the record designated "Memorandum of Exceptions."
The record leading up to the filing of this instrument contains a number of stipulations and orders, each one of which is in the following language:
"Good cause appearing therefor, it is ordered by the court that defendant may have, up to and including the ______ day of ______, 191--, within which to file and serve memorandum of such errors excepted to as it intends to rely on upon said motion for a new trial," etc.
On the 10th day of January, 1914, the respondent herein, by his attorneys, filed an instrument entitled "Notice of Motion," as follows:
"To Pittsburg Silver Peak Gold Mining Company, a corporation, and to Samuel Platt and George Martinson, Esqs., Attorneys for the Above-Named Defendant:
Please take notice that on Saturday, the 17th day of January, 1914, at the courthouse in the city of Reno, county of Washoe, state of Nevada, at the hour of 10 o'clock a. m., or as soon thereafter as counsel can be heard, the above-named plaintiff will move the above-entitled court to strike from the files of said court a certain notice of intention to move for a new trial, heretofore filed by the above-named defendant in the above-entitled action, and a certain memorandum of errors filed in the office of said clerk of the above-named defendant, on or about the 31st day of October, 1913; and to rescind and set aside the order of the above-entitled court, granting said defendant a stay of execution upon the judgment heretofore entered in the above-entitled action. Said motion will be based upon all the records and files of the above-entitled court.
Dated this 10th day of January, 1914.
Dixon & Miller, Attorneys for Plaintiff."
As appears from the record, the motion for a new trial was argued orally before the court by the respective parties, and at the close of the argument was presented to the court for its decision and findings. On the 26th day of January, 1914, the court rendered its decision on the motion for a new trial, denying the motion. Thereafter, and on the 9th day of February, 1914, appellant filed its notice of appeal from the judgment and order denying motion for a new trial, as follows:
Respondent's notice of motion to strike the memorandum of errors filed by appellant January 10, 1914, prior to the hearing on motion for new trial, was, according to the minutes, considered and determined by the trial court at the same time at which it heard and considered and determined appellant's motion for a new trial. It was pursuant to the order of the trial court denying respondent's motion to strike the memorandum of errors from the files that the court placed his signature on the instrument under the words:
All the way through the affidavit of counsel for appellant, filed pursuant to the order for diminution of the record, we find that he uses the terms "bill of exceptions" and "memorandum of errors" interchangeably. For instance, he says:
"Affiant further states that during said proceedings on said day (referring to the day on which the motion for a new trial was heard), and immediately after affiant announced to the court that he would like to have the court allow and settle the bill of exceptions or memorandum of errors, affiant handed the bill of exceptions, or memorandum of errors, to Hon. Thomas F. Moran, the then presiding judge in said cause, for the signature of the said judge as to the allowance and settlement of said bill of exceptions or memorandum of errors and the date thereof; that affiant had theretofore prepared a form of allowance and a separate form for the settlement of said bill of exceptions or memorandum of errors, both of which were attached to said bill and memorandum, and left a blank line under each of said forms for the signature of said district judge; that said district judge signed his signature on the blank line immediately beneath the form for the allowance of said bill or memorandum, but did not insert the date thereof and did not sign upon the blank line immediately following the form for the settlement of said bill or memorandum."
Under our Code of Civil Procedure, providing for new trials and appeals, the terms "bill of exceptions" and "memorandum of errors" are not used, nor intended to be used, interchangeably. The instrument known as a "memorandum of exceptions," provided for by section 5322, Revised Laws, has its place in the proceedings on motion for a new trial; the instrument designated "bill of exceptions," as provided for in section 5343, Revised Laws, performs an entirely different function, and does not belong to the proceedings on motion for a new trial before the trial court, but is made a distinct method of bringing an appeal to this court. A memorandum of exceptions is provided for by statute to have its place in furtherance of a motion for a new trial; a bill of exceptions is...
To continue reading
Request your trial