Corbett v. Job, 5 Nev. 201

Corbett v. Job

5 Nev. 201 | Nev. | 1869

By the Court,

WHITMAN, J.:

. In this case, counsel for respondent move the Court “ to strike out and disregard the statement on appeal,” because the same does not “ state specifically the particular errors or grounds upon which the appellants intend to rely on the appeal.”

It was perhaps unnecessary to make the motion, for if well based, this Court has no power to consider such statement, as by the provisions of section three hundred and twenty-seven of title nine of the “ Act to regulate Proceedings in Civil Cases in the Courts of Justice of this State, and to repeal all other Acts in relation thereto,” approved March 8th, 1869, “ a judgment or order in a civil action * * * * may be reviewed as prescribed by this title, and not otherwise.”

Section three hundred and thirty-two of the same title provides : “ When the party who has the right to appeal wishes a statement to be annexed to the record of the judgment or order, he shall within twenty days after the entry of such judgment or order prepare such statement, which shall state specifically the particular errors or grounds upon which he intends to rely upon the appeal, and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified and no more.” * * * *

It does not follow, that the statement may not contain all other . matter necessary for explanation of its grounds of error; as for instance, the verdict of a jury, findings of fact and conclusions of law, when not made part of the judgment, minutes of the Court, etc.; but it must contain a specific statement of the particular errors or grounds relied on.

Unless, then, the paper offered as a statement complies with this section, it is no statement; it is not as “prescribed” by title nine, and, therefore, no proper aid to the review of the judgment or order appealed from. It is true, that under former statutes and the rules of this Court, a statement to be such should have contained the *205grounds of error relied on; but a strict compliance with proper practice was temporarily waived by the lenity of the Court, though not without strong expressions of disapprobation. (Hoopes v. Meyer, 1 Nev. 433; Grillig, Mott & Co. v. The Lake Bigler Hoad Co., 2 Nev. 214.) Now, however, probably with design to correct this course, by the Act above cited, the Legislature has required a specific statement of the particular errors or grounds relied on upon appeal, thus leaving no room for construction, or lax interpretation, and this Court has no choice but to follow and obey the law.

The so-called statement in the case at bar, contains neither any specific statement of particular errors or grounds relied on, nor any statement; being simply a recital of the progress of the trial, and a detail of the matters occurring thereat, with exceptions taken therein to the rulings of the Court; these not presented in the form of a bill, nor in any tangible manner, but simply noted in the course of the narrative. Such a paper must be disregarded; because it is in no sense a statement, and this Court has no right to consider it, even if it wished.

The transcript contains a writing purporting to be the findings of fact and conclusions of law of the District Judge. This was probably inserted as Being authorized by section three hundred and forty of title ten, of the Act previously referred to. If so authorized, it is not certified as by that section required, and therefore could not be properly considered; but that section does not refer to findings of fact and conclusions of law, when it speaks of “ any written opinion placed on file in rendering judgment.”

Section one hundred and eighty-two of the Act referred to, defines such findings and conclusions as a “ written decision,” and concludes with the provision, that “judgment upon the decision shall be entered accordingly.” This “ written decision,” is something which must precede the judgment, and upon which it is entered, as upon the verdict of a jury. The “ written opinion ” of section three hundred and forty is evidently something other; as it is suggested as an act which may or may not have occurred. “ If any written opinion be placed on file in rendering judgment or making the order in the Court below,” is the language used, proba*206bly referring to the reasoning or argument, for any decision, judgment, or order.

These findings and conclusions, then, are not before the Court. As the appeal is from the judgment, and there is no statement, nothing remains for examination but the judgment roll. (Howard v. Richards & Richards, 2 Nev. 129.)

In that no error appears. It is always disagreeable to decide a case upon a mere question of practice ; but in the present instance there is relief in the fact that the respondent should have recovered upon the evidence.

The judgment of the District Court is affirmed.