7 Nev. 116 | Nev. | 1871
By the Court,
An appeal was brought in this case, but upon discovering that the statement prepared was not settled by the judge below, as required, the appellant moved for leave to withdraw it for the purpose of correcting the omission. In conformity with the application, an order was made by this court dismissing the appeal without prejudice. The statement being corrected, the case is again brought up; but it is argued for the respondent that the dismissal of the first appeal operated as an affirmance of the judgment, and therefore an appeal cannot again be taken.
This objection is clearly not tenable. It has been held, it is true, that the dismissal of an appeal for the want of prosecution, or upon the merits, operates as an affirmance of the judgment. Karth v. Light, 15 Cal. 326. But in that very case it was held that if the dismissal be upon some technical defect in the preparation of the appeal, it has no such effect, the court saying: “ The cases in which the dismissal of an appeal will not operate as a bar to a second appeal, are those where the dismissal has been made upon some technical defect in the notice of appeal, or the undertaking, or the like. The bar applies where the dismissal is for want of prosecution, and the order is not vacated during the term, or the dismissal is on the merits.” This is the extent of the rule laid down in the cases relied on by counsel. It is also doubtful whether thus modified it can be maintained as a correct rule of law, for it has been held otherwise by courts of undoubted ability. 20 Wis. 644; 1 Duer, 252.
But whether it can, or not, need not be determined here, for it is evident this case comes within the rule followed in Karth v. Light. The appeal was not dismissed for want of prosecution, or upon the merits, but solely for the purpose of correcting an error, or supplying an omission which had happened in its preparation. So too, the order of dismissal expressly provided that it was made without prejudice to another appeal. This of itself is a sufficient
The questions submitted for decision upon the record are, first: whether the evidence is brought up in such a manner that it may be reviewed; and if so, then second: whether the court below ruled correctly in taking the case from the jury and non-suiting the plaintiff. The plaintiff appeals from the judgment alone, no motion for new -trial having been made. A statement on appeal was prepared, which embodied the evidence introduced on behalf of the appellant; the motion for non-suit — together with the exception to the action- of the court in granting it. Respondent now argues that the enquiry of this court must b'e confined to the judgment roll alone, as the -evidence cannot be considered except where a motion for a- new trial has been made. It is true, this, court cannot weigh the evidence for the purpose of -determining whether a verdict or judgment is sustained by the evidence; but any question of law arising at the trial and properly-excepted to can be reviewed without a motion for new trial, and in such case so much of the evidence as may be necessary to explain the legal question should be brought up and considered.
It is never held that a mere question of law cannot be reviewed except when a motion for a new trial has been made. Nor can it, with any degree of plausibility, be argued that such is the rule. It is the every-day practice under the new system, as well as the old, to take cases to the appellate courts upon bill of exceptions, upon which all rulings raising legal questions may be reviewed. Will it be argued, for example, that a question growing out of the instructions or charge to the jury cannot be reviewed, except when a motion for new trial is made ? Certainly not; and still it is almost invariably necessary in such cases to review some of the evidence, to enable the appellate tribunal to obtain an understanding of the question. Indeed, so it is with nearly every question of law raised at the trial; it can only be understandingly brought to the attention of the court of review by presenting the evidence bearing upon and illustrating it. A motion for new trial is not only unnecessary to authorize a review of rulings at the trial, but the much preferable practice is to bring them up by bill of exceptions, or in
Whether a case should be withdrawn from the jury and the plaintiff non-suited, is purely a question of law. When properly made, it is simply a decision that the law affords no relief upon the evidence adduced, admitting every fact and conclusion which it tends to prove. It is not a decision upon the weight of evidence where it is conflicting, but that it is not sufficient to justify its submission to the jury. If it were not a question of law, a non-suit could never be granted ; for the judge can only decide questions of law. But independent of reason, such is undoubtedly the law. Pratt v. Hull, 13 John. 335. If so, this point is settled, for there is no difference between this and any other law question as to the manner in which it may be submitted to the appellate court. Being simply a question of law, it could be brought to this court as well by bill of exceptions, or by statement on appeal, as by appeal from an order on motion for new trial.
Was the court warranted in granting the non-suit ? Clearly not. The plaintiff introduced evidence going to prove that an application was made to the agents of defendant for a policy of insurance on the life of the plaintiff’s husband ; that at the time the application was made, fifty dollars was paid, according to the regulations of the company, which was to be applied on the first year’s" premium, provided the defendant should conclude to make the insurance. The application thus made was forwarded to the proper office of the company ; a policy was in due time made out and forwarded to the agent in this state for delivery ; but the insured having died before
Here is undoubtedly sufficient proof to establish a contract for a policy. The application for a policy by the assured, with the payment of a portion of the premium, and acceptance of the risk by the defendant, left nothing to be done but the delivery of the policy and the payment by the plaintiff of the balance of the premium, which, it appears, was not required by the rules of the company until the completion of the transaction. These facts show a valid contract for a policy between the parties. The moment the company concluded to make the insurance, the fifty dollars paid to its agent became its property, without any further action on its part. It was paid upon the condition that if the company concluded to make the insurance, it should be applied in payment of the premium ; when, therefore, the risk was taken, it became the property of defendant, and at the same time the assured became entitled to the policy. Thus there was the acceptance of the application by the company, and the payment' of a portion of the premium, as a consideration therefor, by the plaintiff, which is all that was necessary to make a valid contract between the parties. Such contracts are as available to sustain an action for the amount of the insurance as if the policy itself had been issued. In Kohne v. The Insurance Company of North America, 1 Washington C. C. 93, a person applied to the agent of the company to effect an insurance on goods on board a ship, and settled all the terms of the insurance, but did not receive a policy. It was, however, soon afterwards filled up and executed, and about the same time the company received the intelligence of - the loss of the vessel. On a subsequent day the assured called to pay the premium and receive the policy, but the company refused to deliver it, objecting that the agreement was inchoate, and consequently it had the right to retract. Judge Washington, however, said: “ It appears everything was agreed upon, and although, on account of the fever then in the city, he did not wait to receive the policy, yet it was immediately after he left the the office filled up and signed by the president, and has beenf produced on the trial; the contract therefore was not inchoate, but
The non-suit must be set aside.
Judgment reversed. It is so ordered.