29 Nev. 135 | Nev. | 1906
Lead Opinion
The respondents petition for a rehearing in this action, or a modification of the order entered therein, on the following grounds: "That no appeal was ever taken from the judgment herein; that the only appeal which was taken was from the order denying plaintiff’s motion for a new trial, and the jurisdiction of this court is limited to affirming or reversing that order; and that the order entered directing judgment for plaintiff is not warranted, even had an appeal been taken from the judgment.” It is contended that the record on appeal does not contain the judgment roll, and consequently that there can be no appeal from the judgment. The notice states that the appeal is from the judgment, as well as the order denying the motion for a new trial. The undertaking on appeal is conditioned for the payment of costs on appeal from the judgment. The transcript is entitled "Statement on Motion for New Trial and Appeal.” Copies of all the papers required under Comp. Laws, 3300, to be embodied in the judgment roll, with the exception of the summons, are contained in the transcript. There was no motion made to dismiss the appeal from the judgment because of any alleged defect therein, nor was the sufficiency or regularity of the appeal questioned upon the presentation of the cause. The ease was briefed, argued, and presented as though the appeal was entirely regular. Its sufficiency, therefore, cannot now be questioned upon petition for rehearing.
It is argued that this court, in any event, ought not to have directed that judgment be entered in favor of the appellant, upon reversal of the judgment, but that all that was proper to be done, under such circumstances, was the granting of a new trial, the rule being, "that where there is an issue upon material facts, which may possibly be decided in more than one way on another trial, there should be a new trial ordered on a reversal of the judgment.” Upon the trial of this cause the respondents offered no evidence; they submitted the case upon the testimony offered by the plaintiff. The court ordered judgment in favor of defendants. Findings prepared by defendants’ counsel, which negatived the allega
"Wherefore plaintiff and appellant prays that, inasmuch as all the evidence is before the court, the judgment be modified by directing the defendants to execute a deed of said property to plaintiff; and should the court find that plaintiff is not entitled to the relief prayed for in the complaint, but is entitled to the lesser relief of a deed to the sand and exclusive right to remove the same, that the judgment be modified accordingly. * * *”
It will be seen, therefore, that whether judgment by this court should be ordered entered in favor of the plaintiff upon the findings as they stood, was squarely before the court. There was no intimation in respondents’ brief that, in the event this court should conclude that the finding as to the sale of the sand was supported by the evidence and that the trial court should have, given judgment to that extent in favor of the plaintiff, this court ought not to make an order directing such a judgment to be entered, instead of remand
Counsel for respondents in the presentation of this case upon the hearing on appeal took the sole position that, under the pleadings, findings, and evidence, the appellant was entitled to no relief whatever. Although counsel for appellant was asking that judgment be ordered entered in favor of plaintiff in accordance with the finding relative to the sale of the sand, this finding is nowhere directly attacked in respondents’ brief; in fact, it is not denied that the evidence was sufficient to establish a sale of sand and a license to remove the same, although it was and is claimed that the proofs as to the limits within which the sand might be taken were' too indefinite. Under this state of facts, we think the contention, now made for the first time, that the course pursued by this court was not a proper one, also comes too late. It is the rule that no new ground or position not taken in the argument submitting the case, or question waived by silence, can be considered on petition for rehearing. (Powell v. N. C. O. Ry. Co., 28 Nev. 305, 82 Pac. 97; Beck v. Thompson, 22 Nev. 421, 41 Pac. 1.)
It was contended by counsel for respondents upon the presentation of this case, and is again urged in the petition for rehearing, that there was no satisfactory proof of the boundaries of the land referred to in the complaint, and within which the sand has been held to have been sold to the plaintiff. This point was considered, although not referred to in the original opinion. There was testimony to the effect that two of the sides, the south and the east, were laid out in the presence of B. G. Clow and the plaintiff and at Clow’s direction. Counsel in their petition now only contend " that the record on appeal, fairly considered, fails to show that the western boundary of the land claimed by appellant was ever indicated or marked .by B. Gr. Clow.” As the land in ques
The petition for rehearing is denied.
On Motion to Modify.
A statement of the facts and the law controlling the rights of the parties in this action is contained in the opinion of this court rendered on the merits, 28 Nev. 505, 83 Pac. 327. Subsequently respondents filed a petition for rehearing which was denied, because they were not entitled to a rehearing on matters waived or grounds not advanced by them on the first argument on appeal. After the denial of the petition for rehearing they filed a motion to set aside our decision and order directing the entry of judgment by the lower court, and they seek to sustain the motion on grounds not advanced by them on the original hearing, and they submit affidavits which do not state facts which would warrant a judgment different than we have ordered, but which pertain to matters not advanced or suggested in the first argument before us on the merits. Appellant moves to dismiss and to strike from the files this motion of respondents, for the reason that there is no statute, rule, or practice authorizing • such motion, and on other grounds. To allow respondents’ motion to stand and be considered would be doing indirectly and later by this motion what we had previously refused to do on the petition for rehearing, and would not only set a precedent which would render judgments uncertain and unstable after the rendition on appeal and consideration on rehearing in this court, but would unduly prolong, litigation and sweep aside the benefits and results following from the rule announced in numerous decisions in this and other courts, holding that points or contentions not raised, or passed over in silence on the original hearing, eannot be maintained or .considered on petition of rehearing. This rule is equivalent to holding that matters so waived cannot be entertained
Many of the cases holding that grounds and matters not advanced on the original hearing in this court will not be considered on petition for rehearing are cited in Powell v. N. C. O. Ry., 28 Nev. 342, 343, 82 Pac. 97. The motion of respondents to amend the judgment is equivalent to a petition for a rehearing. (Gray v. Gray, 11 Cal. 341.) A second application for the rehearing of a cause by the same party, after his petition for rehearing has been denied, will not be entertained. (3 Cyc. 218; Garrick v. Chamberlin, 100 Ill. 476; Smith v. Dennison, 101 Ill. 657; Bank v. Grunthal, 39 Fla. 388, 22 South. 685; Williams v. Conger, 131 U. S. 390, 9 Sup. Ct. 793, 33 L. Ed. 201; Westerfield v. Levis, 43 La. Ann. 77, 9 South. 52; Coates v. Cunningham, 100 Ill. 463; Trench v. Strong, 4 Nev. 87; 3 Cent. Dig. 3214.)
The motion of respondents to set aside or modify the decision and order of this court is dismissed.
Dissenting Opinion
dissenting:
After the order denying respondents’ motion for a rehearing in this case was made, but before the remittitur thereon went down, the counsel for respondents moved the court to reconsider its order and to modify its decision on the appeal, pointing out what counsel considered such grave errors in the decision and order and disastrous consequences therefrom resulting as to justify them in making said motion;
On the first question I think the court has this power. Until the remittitur goes down, I think this court has full and complete control over its decisions, judgments, and orders. Otherwise mere inadvertence, oversight, or mistake might work grave disaster to litigants coming before it seeking justice.. It is a constitutional court of final appellate jurisdiction. There is a maxim of the law that a good judge will not unnecessarily curb and limit his jurisdiction, but he will, on the contrary, extend it to its utmost proper limits in order that he may reach justice. This court has power to make its own rules to govern its procedure and to establish its practice as it may deem to be wise and just, unless it is restrained and limited in a matter before it by its own rules previously established, or by legislative enactment, or by constitutional provisions. I know of no rule of this court, legislative enactment, or constitutional provision restraining or limiting the power of the court in this respect. In a proper ease I think the court should not hesitate to exercise so salutary a power in the administration of distributive justice.
The second question is: Has the court fallen into error of sufficient gravity to warrant its exercise of this power? It seems to me that expressly in its original decisions, and impliedly in its order that counsel move to modify, the court did fall into error. It also seems to me to be, not only proper, but necessary, that the nature of those errors should be here briefly stated, so as to ascertain whether or not they be of magnitude sufficient to justify counsel in making their said motion, and the court in exercising the power in question. The errors, it seems to me, briefly stated, are as follows: (1) The original decision of this court in the case decrees a specific performance of a contract for the sale of
It only remains to state what order should, in my opinion, be made in this proceeding. In my dissenting opinion, when this case was first decided in this court (see 28 Nev. 509), I stated that I thought the judgment of tbe trial court against tbe plaintiff below and appellant here should be affirmed. As tbe case appears upon tbe record filed in this court, I still think that was tbe correct and proper order for this court to make. Tbe reasons for that opinion are as follows: Plaintiff sued in tbe court below for a specific performance of an alleged contract to convey land. Tbe court found as a fact there was no contract to convey land, and its judgment denying a specific performance should, I then thought, and now think, have been affirmed. Tbe court, however, did find that there was a contract between plaintiff and defendants’ predecessors in interest selling to plaintiff tbe sand on or in a certain piece of land. But there was nothing in tbe record on appeal here showing that respondents bad denied plaintiff’s right to the sand, or that respondents bad prevented plaintiff from taking tbe sand in accordance with tbe contract; hence, in that condition of things, there was nothing to be done but to affirm tbe judgment. At tbe argument on tbe rehearing, however, counsel for respondents admitted that, on tbe trial of tbe case in tbe court below, it did appear that respondents bad denied plaintiff’s right to take tbe sand,
In view of those two important facts appearing at the trial below and not appearing in the record on appeal here, and the said consent of counsel, I think this court might perhaps now properly make either one of two orders: (1) An order affirming the judgment of the trial court, thus leaving to a future action the determination of the rights of the parties should respondents in future refuse to permit plaintiff to take the sand — thus going strictly by the record before it here on appeal; and (2) reverse the judgment of the trial court, and order that a new trial of the case be had in that court. On the whole I think j ustice could be more likely reached in the case by the latter course, for the parties could then have-their respective rights in the premises determined without the expense and trouble of a new action. The plaintiff could not reasonably and justly complain of such an order, because, in my opinion, it is more than he is entitled to under the case made by him here, and, in addition, that is what he asked of this court in his appeal to it. Respondents could not reasonably and justly complain of such an order because they have consented thereto.
It seems to me that this court should enter an order herein that the judgment of the trial court is reversed, and a new trial of the case granted. I therefore dissent from the opinion of the majority of the court on this matter.