Young v. Holman

• Decision Date: 30 August 1922
• Docket Number: 2552.
• Citation: 208 P. 871,47 Nev. 1
• Parties: YOUNG v. HOLMAN ET AL.
• Court: Nevada Supreme Court

208 P. 871

47 Nev. 1

YOUNG v. HOLMAN ET AL.

No. 2552.

Supreme Court of Nevada

August 30, 1922

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

Action by Etta M. Young against James A. Holman and another. Judgment for plaintiff, and defendants appeal. On motion to dismiss appeal. Motion denied.

Milton M. Detch, of Tonopah, for appellants.

John S Sanai, of Reno, and Platt & Sanford, of Carson City, for respondent.

DUCKER J.

This is a motion to dismiss an appeal taken from the judgment and order denying a motion for a new trial. By stipulation of counsel it was heard in advance of a hearing on the merits.

The transcript of the record on appeal was filed in this court on the 7th day of April, 1922. The notice of motion and motion to dismiss were served upon counsel for appellants on the 20th day of April and filed on the 21st day of April, 1922. The motion to dismiss is based upon the ground that no assignment of errors has been served and filed within 10 days after the filing of the transcript of the record on appeal in this court, or at all. Appellants contend that they are entitled to have considered such errors as may appear from the judgment roll without any assignment thereof. In support of this contention they rely upon the rulings of this court in Talbot v. Mack, 41 Nev. 245, 169 P 25, Miller v. Walser, 42 Nev. 497, 181 P. 437, and Page v. Walser, 43 Nev. 422, 187 P. 509. In the first two cases it was held that it was unnecessary to assign errors appearing on the face of the judgment roll, and this ruling was applied in the latter case to errors appearing from a record consisting of the amended complaint, demand for change of venue, affidavit in support of the motion, written stipulation, and the order appealed from, upon the ground that such a record was substantially the same as the judgment roll.

In Talbot v. Mack and Miller v. Walser, the appeal was taken from a judgment rendered after a demurrer to the complaint had been sustained and the appellants had declined to amend.

Respondent takes the position that these decisions are not in point, for the reason that in the present case there has been a trial and judgment upon the merits. It is also urged that this court, in its decisions in Talbot v. Mack, supra and Smith v. Lucas, 43 Nev. 348, 186 P. 674, has expressly restricted the application of the doctrine that errors appearing upon the face of the judgment roll need not be assigned from cases where there has been a trial upon the merits. We do not think...