No. 1708½ | Nev. | Jul 15, 1907
By the Court,
The plaintiffs brought this action by a complaint alleging that the water of a spring had been appropriated by Jack Shepard and by him deeded to them, and demanded an injunction perpetually enjoining the defendant from interfering therewith. The case was tried by a jury, which brought in a verdict "in favor of the plaintiffs,” and found special
The notice and undertaking on appeal state that this appeal is from the judgment and from the order of the district court overruling defendant’s motion to set it aside. Respondents moved to dismiss the appeal upon the ground that no statement had been settled. There are two volumes, duplicates, entitled "Statement on Appeal,” both indorsed as filed September 8, 1906, by, and shown to be in the handwriting of, the clerk of the district court. These appear to be identically the same excepting that one is indorsed "copy,” and the motion to dismiss is upon the ground that this, instead of the original, is the one that has been settled by the district judge. On the- hearing in this court we directed that the latter might be filed, or that the other copy could be indorsed by the district judge and filed. The volumes being the same, and both equally showing the proceedings in the trial court, the fact that the certification of settlement was attached to the one marked " copy ” after this court had directed that the statement be settled we think is immaterial and should not deprive the appellants of the right of appeal or of presenting their case. As the one marked " copy ” bears the filing and
Respondents made a second motion to dismiss the appeal upon other grounds, part of which had been determined in the mandamus proceedings, but this motion, under the court rule, comes too late, and the right to make the same is waived because it was not made before the day of the hearing nor until after respoD dents had filed their brief.
It is said that no question regarding the sufficiency of the order of the district judge directing that judgment be entered in accordance with the verdict can be considered, because no exception was taken to the order at the time it was made upon the rendition of the verdict. It is true that no exception was so taken, because the order was not then heard by counsel or the clerk; but, when the nunc pro tune order was made, and as soon as counsel was aware of the direction that judgment be entered, exception was taken, and due specification of error and the proceedings of the court are contained in the record.
It is also claimed that any defect in the judgment cannot be considered for the reason that by omission of the summons there is no judgment roll before this court. Although the statute directs the clerk to include the summons as part of the judgment roll, it is not necessary that there should be one in all cases. The object and purpose of the summons is to bring defendants into court, and the practice act provides that they may appear without summons, and if they so appear no reason exists why they may not have their cases reviewed on appeal in the same manner as others where there may be a summons in the case. In fact, the summons is imperative only in default eases in which no appeal lies. Here we have before us all the papers directed to be placed in the judgment roll excepting the summons, which is not essential, as the defendant was in court and the judgment itself is sufficient without reference to any other paper to indicate its invalidity. It shows that it was entered by the clerk upon the verdict, and that it attempted to grant relief by perpetual injunction, which under the
For respondents it is argued that they had a constitutional right to a jury, and were entitled to the result of the verdict and to have a judgment entered upon it by the clerk. If this were true, and the case were not one in equity (Duffy v. Moran, 12 Nev. 97), still neither the verdict nor the order of the judge directs the entry of the decree for perpetual injunction which was made by the clerk. Consequently, and too clearly for argument, this judgment shows upon its face that it is void and cannot be sustained upon any legal principle, because it was entered by the clerk, a ministerial officer who could not act - judicially in this regard and who was not directed to enter such decree by any order of the court, and was not, and could not have been, authorized to enter it by the verdict of the jury. On a motion for that purpose the court could have set aside this decree as having been inadvertently entered by the clerk and unauthorized, and the appeal is properly from his order in that regard and from the judgment as presented with the papers essential to be brought here in the judgment roll.
As the plaintiffs base their claim upon an appropriation alleged to have been made by Shepard, they are limited to the amount which was beneficially used by him. The jury found that this was ten gallons for mining and ten gallons for domestic purposes each day. Where there is a general and a special verdict, if either has any force, the latter controls. If the jury desired to give the plaintiffs all the water flowing from the spring or more than twenty gallons per day because they found that their grantor Shepard had used that quantity, nevertheless the law would limit the right to the amount beneficially appropriated. By directing judgment in accordance with the verdict, it may be assumed that the district court approved of the finding of the jury and found in favor of an appropriation by Shepard- to the extent of at least twenty gallons per day. The defendant complains because
Respondents’ motions to dismiss the appeal are denied, the judgment is set aside, and, if within twenty days after filing of the remittitur the plaintiffs file their written consent that judgment be entered in favor of them for the use of twenty gallons per day of the-water of the spring in controversy and for costs of suit and for a perpetual injunction restraining defendant and its agents and employees from interfering with the free use by the plaintiffs of that quantity of the water per day, a decree will be so entered by the district court, but otherwise a new trial will be had.