Alderson v. Gilmore

13 Nev. 84 | Nev. | 1878

By the Court,

Beatty, J.:

This is a suit to recover certain horses, mules, harness, wagons, etc., held by the defendant, Gilmore, sheriff of Eureka, under an attachment issued in an action commenced by the defendant, McKernan, against one Davis. The defendants, in their answers, deny plaintiff’s title to the property, and allege that it is the property of Davis. The defendant, McKernan, also asserts a right to hold the horses and mules by virtue of a stable-keeper’s lien for the price of hay, grain, etc., fed to them in his stables. These were the issues made by the pleadings. The cause was tried by the court without a jury, and the plaintiff had judgment for all the property except the horses and mules. Being dissatisfied with this judgment, he moved for a new trial, and on appeal from the order overruling his motion, he argues that the evidence was insufficient to support the findings, and that the findings do not support the conclusion of the district court, that the defendant, McKernan, had a valid lien upon the live stock. The plaintiff, however, neglected to include in his statement of the case the findings and conclusions of the court, and no counter statement was proposed. It is objected by the respondents that the findings of the district court are not a part of the record, and cannot be considered. "We are obliged to sustain tbe objection. It has been too often decided to be any longer a question in this court that the findings of the district judge cannot be considered unless they are included in the statement of the case. (Bowker v. Goodwin, 7 Nev. 137; Imperial S. M. Co. v. Barstow, 5 Nev. 254; Corbett v. Job, Id. 204.) The objection that they are not a part of the record is not one of those exceptions to the transcript or technical objections to the statement that are waived unless taken in accordance with Bule YIII. of this court. We have no power to look outside of the record of a case, and when it clearly appears that a paper copied into the transcript is no part of the record, we are bound to ignore it.

Since, therefore, we cannot look at the findings in this case, we cannot know w'hat were the grounds of the decision of the district court. If we should be satisfied from an examination of the statement on motion for a new trial that there ivas no evidence to sustain a finding that McKernan had a lien on the horses and mules, we would be bound to presume in favor of the judgment, that the finding was against the plaintiff on the issue of ownership of the animals. As the judgment and order of the district court must at all events be affirmed, it is unnecessary to consider or decide the questions discussed by counsel, which relate exclusively to the lien claimed by McKernan.

The judgment and order appealed from are affirmed.