18 P. 753 | Nev. | 1888
The facts are stated in the opinion.
The title of this cause in the district court was SilasE. Burbank, Contestant v. Frank Rivers,Contestee. The case was tried before Hon. William M. Boardman, District Judge. Judgment therein was rendered in favor of respondent. Upon an appeal taken therefrom the judgment of the district court was affirmed. (Burbank v. Rivers,
The facts which were presented to Judge Bigelow by the other records of the court, the affidavits on file, and the testimony of Hon. William M. Boardman, and of the clerk of the court, are not before us; and we are therefore bound to presume that the evidence was sufficient to justify the order made by Judge Bigelow. Is this appeal from the order overruling appellant's motion for a new trial taken in time? "An appeal may be taken * * * from an order refusing a new trial * * * within sixty days after the order is made and entered in the minutes of the court." (Civil Pr. Act, Sec. 330; Gen. Stat., 3350.) "The theory of this appeal is," as stated in appellant's brief, "that, as matter of fact and law, the appellant s motion for new trial was never overruled until the 30th day of January, 1888; that an order entered by Judge Boardman, * * * in a case entitledSilas E. Burbank v. Henry Rives was not and could not, as matter of law, be an order in a case against Frank Rivers; that such an order entered in the minutes or filed in the case could not, as matter of law, and did not as matter of fact, impart notice to Frank Rivers, or his attorney, that the motion in his case for a new trial had been overruled; that Frank Rivers was notbound to lake notice from the entry of such an order in the minutes the not being present in court when the order was rendered) that it was, or was intended by the judge or clerk to be, an order in his case; * * * that as no such order was in fact entered until the 30th of January, 1888, when Judge Bigelow made a substitute order in the case at bar, denying a motion for a new trial, and caused that order to be entered in the minutes in lieu of the one in thecase of Henry Rives, entered by the clerk while Boardman was judge, the time for appeal from the order denying the new trial in this case did not commence to run until from and after the 30th of January, A. D. 1888." This theory can only be maintained upon the ground that the order made by Judge Boardman was never in fact entered in the minutes of the court; that the pretended entry was a nullity. Unless *163 there was an absolute failure to enter that order in the minutes of the court until the nunc protunc order of Judge Bigelow was made, the contention of appellant cannot prevail. It is not pretended that appellant did not have notice that his motion for a new trial had been denied by Judge Boardman more than 60 days prior to the making and entry of the nunc pro tunc order of Judge Bigelow. His contention simply is that the record entry did not impart any notice to him. That is a question to be determined upon the facts. In the absence of any showing to the contrary, we are bound to presume that appellant was informed of the fact that Judge Boardman had overruled his motion for a new trial. Having such notice, it was his duty to inform himself whether the entry thereof had been made in the minutes, and, if he performed this duty, he would have ascertained the true state of the facts. Information which makes it the duty of a party to make inquiry, and shows where it may be made, is notice of all facts to which such inquiry would naturally lead. The law necessarily imputes to a litigant knowledge of a fact of which the exercise of ordinary prudence and diligence must have apprised him. It must therefore be admitted that appellant had knowledge of the fact that the order, as originally entered in the minutes, was intended to apply to this case, and to no other, and that the clerk made a clerical mistake in writing the names "Henry Rives" and "Henry Rivers" instead of Frank Rivers. It is not shown that appellant or his counsel were misled by these mistakes. Having knowledge of the facts, appellant was, in our opinion, bound by the record, and was required to take his appeal within 60 days after notice of the true state of the facts. In order to avail himself of the clerical mistakes made by the clerk, and to excuse his delay in taking this appeal, he must, at least, affirmatively show, to the satisfaction of this court, that he was deceived or misled by the entry as made, and that he was thereby deprived of his right to appeal within sixty days from the entry of the order in the minutes, without any fault or negligence upon his part. There is no such showing made in the records before us, and the appeal must therefore be dismissed, because not taken in time. It is so ordered. *164