32 Nev. 342 | Nev. | 1910
By the Court,
This is a motion under the provisions of rule 3 of this court to dismiss an appeal from an order denying a motion for a new
It is the contention of counsel for the appellant that the motion to dismiss ought not to prevail for the reason that the statement on motion for a new trial was never settled by
Section 197 of the civil practice act, relative to statements on motion for a new trial, provides: "The party preparing the statement * * * after having filed the same with the clerk, and had such filing entered and endorsed, shall serve the same on the adverse party, on the same day, who may propose amendments thereto, * * * and shall within five days after the service on him of the statement, file his amendment with the clerk, and * * * shall on the same day, serve the same, with the statement, on the moving party, Avho shall, within five days thereafter, give written notice to the adverse party if he declines admitting the amendments, or they shall be deemed accepted. At any time thereafter either party may have the statement settled by the judge or referee upon two days’ notice thereof to the other party. * * * When the statement is agreed to it shall be accompanied with the certificate, either of the parties themselves in fact or their attorney, that the same has been agreed upon, and is correct. When settled by the judge or referee, it shall be accompanied with his certificate that the same has been allowed by him and is correct. When no amendments have been filed, the statement shall be accompanied with the certificate of the clerk of that fact. * * * The several periods of time limited may be enlarged. * * *” (Comp. Laws, 3292.)
The amendment offered by the plaintiff to the defendant’s statement on motion for a new trial is deemed to have been accepted by the defendant and, therefore, the statement, in effect, agreed upon by the parties. There was then nothing more for the judge to settle than if no amendment had been proposed. Where no amendments have been filed, the certificate of the clerk to that effect is sufficient authentication. (Borden v. Bender, 16 Nev. 49; Tull v. Anderson, 15 Nev. 426.) The statement should be certified to in some appropriate manner, and it is irregular for the court to pass upon the motion in the absence of some such certification. But if, as a matter of fact, it appears that the statement has beeen settled or agreed upon to all intents and purposes, and counsel submit
The case at bar may be distinguished from the case of Young v. Updike, 29 Nev. 303, relied on by counsel for appellant, not only because of the fact that different statutory provisions were involved, but for the further reason that in the latter case no question of waiver was involved.
The motion to dismiss the appeal is granted.