5 Nev. 258 | Nev. | 1869
By the Court,
This appeal is taken from an order denying a new trial, and also from the judgment. The statement on the motion assigned as the grounds upon which it was to be made:
1st. Insufficiency of the evidence to justify the findings and report of the Referee.
2d. Insufficiency of the evidence to justify the judgment; and that it is against law.
3d. “ The Referee erred in admitting certain testimony, to the admission of which the defendant objected and excepted, as shown in the foregoing statement.”
These are the only grounds set out; and the statement contains no inore particular specifications of the errors upon which the moving party intended to rely, or designation wherein the evidence was insufficient. The law declares that when the notice of motion “ designates as the ground upon which the motion will be m'ade the insufficiency of the evidence to justify the verdict, or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient.” And again: “Whén the notice designates, as the ground of the motion, errors in .law occurring at the trial, and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely.”
Does the statement in this case meet these requirements of the law, in respect to the specifications ? Clearly not. Insufficiency of the evidence to justify the findings, or judgment, is simply the
Whether the Court erred in refusing to allow the defendant to amend his statement by supplying the specifications, cannot be determined upon this record. The offer to do so was not made until the lapse of several days after the argument of the motion; and as there is no statement on appeal in the case, the fact that such offer was made is not properly before this Court. On an appeal from an order granting or refusing a new trial, the Appellate Court is confined in its investigations to the record used on such motion in the Court below. Such record is made the statement on appeal from the order. (Prac. Act, Sec. 197; Quivey v. Gambert, 32 Cal. 306.) But whether this be so or not, it is certain that proceedings occurring after the argument of the motion for a new trial can be brought to the attention of this Court only by means of an authenticated statement setting them out. The minutes of the Court
The action of the Court below upon the application to amend cannot therefore be inquired into. We have no hesitation in saying, however, that the Courts should be liberal in allowing amendments of this kind, and should themselves suggest them whenever a defect or deficiency is apparent.
It is not claimed that any error is apparent in the judgment roll, and we have been unable to discover any.
The judgment, together with the order denying the new trial, must be affirmed.