Ward v. Pittsburg Silver Peak Gold Mining Co.

• Decision Date: 29 April 1915
• Docket Number: 2120.
• Citation: 148 P. 345,39 Nev. 80
• Parties: WARD v. PITTSBURG SILVER PEAK GOLD MINING CO.
• Court: Nevada Supreme Court

148 P. 345

39 Nev. 80

WARD v. PITTSBURG SILVER PEAK GOLD MINING CO.

No. 2120.

Supreme Court of Nevada

April 29, 1915

Appeal from District Court, Washoe County; Thos. F. Moran, Judge.

Action by Walter Ward against the Pittsburg Silver Peak Gold Mining Company. Judgment for plaintiff, and from the denial of its motion for a new trial, defendant appeals. Affirmed.

Samuel Platt, of Reno, and Geo. H. Martinson, for appellant.

Dixon & Miller, of Reno, for respondent

McCARRAN J.

In this action, on April 13, 1914, respondent moved to dismiss the appeal. The motion to dismiss the appeal from the final judgment was based upon the ground that the appeal from that judgment was not taken within six months after the entry thereof. The motion to dismiss the appeal from the order denying a new trial was based upon the ground that appellant did not, within 20 days after the rendition of the judgment or within 20 days after the making of the order denying a motion for a new trial, or at any time, file or serve any statement on appeal. As to the motion to dismiss the appeal from the final judgment, this court, speaking through Mr Chief Justice Talbot, decided that respondent's motion to dismiss was well taken, and the order was entered that the appeal from the final judgment be dismissed. Ward v Pittsburg Silver Peak Gold Mining Co., 143 P. 119. As to the appeal from the order denying appellant's motion for a new trial, in the case of Ward v. Pittsburg Silver Peak Gold Mining Co., supra, we said:

"The case will be retained for consideration on appeal for such questions as may duly appear from the record and from the minutes of the court when admitted to have been properly before and considered by the district judge in passing upon the motion for a new trial. The papers, not appearing to have been before or so considered by the court upon the hearing of the motion for a new trial, or properly before this court, may later be stricken from the files. As to which papers these should be, counsel may present their views when argument is had upon the merits. * * * The other motions of the respondent are denied for the present, subject to the right of the court to eliminate from the files any papers after the minutes which will be admitted have been considered and argument had."

On the final argument of this case, counsel for respondent renewed their motion to dismiss the appeal from the order denying a new trial.

The first contention of counsel for respondent is that a certain instrument, entitled "Memorandum of Exceptions," embodied in the judgment roll, should be stricken from the files, inasmuch as it has no place in the judgment roll. Counsel's second contention is that no statement on appeal or bill of exceptions was ever filed by appellant in this case, and that therefore there is nothing before this court for review. We shall deal with both propositions in one consideration.

Our appellate jurisdiction governing cases brought to this court from the several district courts, strictly speaking, is found in the sections of the Revised Laws Nos. 5325 to 5361, inclusive. The procedure governing applications for new trial is contained in section 5319 to section 5324, inclusive. The procedure, or the essential steps of the procedure, in furtherance of motion for a new trial, made before the trial judge in the district court, must not be confused with the several steps essential to the perfection of an appeal from the district court to the Supreme Court. Each procedure and each step in the respective procedure is essentially independent of the other. Section 5322, Revised Laws, being section 380 of the Civil Practice Act, pertaining to applications for a new trial, sets forth:

"Where the motion is made upon the seventh cause mentioned in the preceding section (error in law occurring at the trial and excepted to by the party making the application), the party moving shall, within ten days after the service of notice of motion for a new trial, unless further time be obtained by stipulation or order of the court, serve upon the adverse party a memorandum of such errors excepted to as he intends to rely on upon the motion, and such memorandum shall contain a verified statement of his attorney that in the judgment of such attorney the exceptions so relied upon are well taken in the law. No other errors under subdivision 7 shall be considered either upon the motion for a new trial or upon appeal than those mentioned in such memorandum."

By the preceding section, to wit, section 379 of the Civil Practice Act, it is provided that where the motion for a new trial is made upon the fifth, sixth, or seventh grounds (excessive damages appearing to have been given under the influence of passion or prejudice; insufficiency of the evidence to justify the verdict or other decision, or that it is against law; error in law occurring at the trial and excepted to by the party making the application), it must be made upon the minutes of the court, without statement or bill of exceptions. Reading these two sections together, the procedure may be stated in simple language as follows: Where the application for the new trial is made upon the first, second, third, or fourth ground as set forth in section 378 of the Civil Practice Act, the application must be supported by affidavit. Where the application for a new trial is made upon the fifth or sixth ground, the movant must rely upon the minutes of the court and pleadings, and the orders, the depositions, and documentary evidence, and the stenographic notes or report of the testimony and the records of the court had, made, taken, or entered during the course of the proceedings. If the motion for a new trial is based upon the seventh ground, as set forth in section 378, the movant must, within 10 days after the service of notice of motion, unless further time be obtained by stipulation or order of the court, serve upon the adverse party a memorandum of such errors excepted to as he intends to rely on in furtherance of his statement that, in his judgment, the exceptions so relied upon are well taken in the law. Where the movant relies upon the seventh cause, he can assert no other errors under that cause than those which he specifically sets forth in his verified memorandum of errors. From these several provisions of the Civil Practice Act, it must be observed that each of the several phases mentioned are essential steps in the procedure on motion for a new trial.

Section 5325, Revised Laws, being section 383 of the Civil Practice Act, prescribes that:

"A judgment or order in a civil action, except when expressly made final by this act, may be reviewed as prescribed by this title, and not otherwise."

By the provisions of section 386 of the Civil Practice Act, the party who seeks to appeal upon the ground either that the evidence is insufficient to justify the verdict or the decision of the court, or to support the findings, or who appeals upon alleged errors in rulings upon the evidence, or upon the giving of instructions claimed to be erroneous, must present his motion for a new trial to the trial court and have the same determined before the appeal can be taken.

Section 389 of the Civil Practice Act defines a statement on appeal, and prescribes the method of preparing, serving, filing, and finally settling the same, and, in part, is as follows:

"When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall, within twenty days after the entry of such judgment or order, if he or his attorney was present at the time of the making or entry thereof, or if the appeal is from a judgment based upon a verdict, and in other cases within twenty days after receiving written notice of the entry of the judgment or order, prepare a proposed statement, and number the pages and lines thereof, which proposed statement shall specify the particular errors or grounds upon which he intends to rely on the appeal, and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified, and no more, and shall file the same with the clerk and serve a copy thereof upon the adverse party. * * * The respondent may, within ten days thereafter, prepare and file amendments to the statement."

Section 393 of the Civil Practice Act provides:

"If the party shall omit to make a statement within the time limited, he shall be deemed to have waived his right thereto; and when a statement is made and the parties shall omit within the several times above limited, the one party to propose amendments, the other to give the notice that he declines to admit the amendments, they shall respectively be deemed, the former to have agreed to the statement as prepared, and the latter to have agreed to the amendments as proposed; but the judge or referee who tried or heard the case shall, notwithstanding such omission or implied agreement, have power to correct any misstatement of his rulings which such statement may contain."

This latter section has received construction by this court in several cases. In the case of Williams v. Rice, 13 Nev. 234, Mr. Chief Justice Hawley, in speaking for the court, held that when an appeal is only taken from a judgment a statement that had been prepared and used as a statement on motion for a new trial cannot be considered as a statement on appeal. The case of Williams v. Rice, supra, is especially significant in the consideration of the case at bar, in view of the fact that the statement on motion for a new trial mentioned by the court in that decision has been since done away with, and its place is filled by that which is termed "Memorandum of Exceptions," as prescribed by section 380 of...