6 Nev. 194 | Nev. | 1870
By the Court,
This appeal is another phase of the case decided, in 5 Nev. 201, under the title of Corbett v. Job et al.
After that decision, appellant gave notice of intention to move for a new trial, and within due time thereafter prepared and filed his statement. The District Judge denied the motion upon the ground that it came too late. Appellant insisted that as the case was one where the Court had rendered'a decision, he might make his motion under the statute “ within ten days after receiving written notice of the rendering of the decision of the Judge,” (Stats. 1869, 226, Sec. 197) and that, as matter of fact, no such notice had been legally served; the service having been made upon appellant personally, instead of upon his attorney. The Court held that the suggestion of fact was correct, but that appellant had waived his right to require notice by accepting and acting upon his actual knowledge as evidenced by his appeal, and had waived his right to move for a new trial by allowing the time therefor to lapse.
There would seem to ■ be little doubt of the correctness of this decision. Had the appellant taken no action, no advantage could have been taken of his actual knowledge ; but he appealed from the whole judgment, recognizing it in its entirety, asking of this Court its vacation without the preliminary step of motion for new trial. The natural presumption is that such motion was waived.
Had the notice of rendition of judgment in fact been given, and the appeal been taken, it would not be claimed that appellant could make his motion for a new trial at this time. Why any more, when it is apparent that the full object of the notice has been accomplished, and he has suffered no wrong ?
It would look like trifling with the practice of the Courts to adopt any other view than that announced by the District Court.
The judgment of that Court is affirmed.
