THE ELKO-TUSCARORA MERCANTILE COMPANY, RESPONDENT, v. IRA D. WINES AND LEN WINES, APPELLANTS.
No. 1523
Supreme Court of Nevada
April, 1898
24 Nev. 305
G. F. Talbot, District Judge
We are of opinion that there is substantial evidence to support the verdict upon all the material issues of fact raised in the case; that the court did not err in the instructions given or in refusing others, and that the verdict of the jury is not against law.
The Costs: Counsel for respondent moved this court to dismiss the appeal on the ground that the judgment is incomplete, in that the costs to which the plaintiff is entitled are not included in the judgment. The judgment, as entered, appears above, and as to costs it is, to wit, “and for her costs of suit,” no amount being named therefor. It appears that the cost bill was filed in due time by the plaintiff after the entry of said judgment by the clerk, and the defendants duly moved the court to retax the costs, but subsequently withdrew their motion. The clerk should have inserted the amount of plaintiff‘s cost bill in the judgment after the defendants had withdrawn their motion to retax. Not having done so is not legal ground for dismissing the appeal.
The motion to dismiss is denied.
The judgment and order appealed from are affirmed, and the clerk of the district court will complete the entry of said judgment as above indicated.
PRACTICE ON APPEAL-DISMISSAL. An appeal taken before the rendition of the judgment will be dismissed.
APPEAL from the District Court of the State of Nevada, Elko county; G. F. Talbot, District Judge:
Action by Elko-Tuscarora Mercantile Company against Ira D. Wines and Len Wines. From a judgment for plaintiff, defendants appeal. Dismissed on motion.
The facts sufficiently appear in the opinion.
John T. Baker, for Appellants.
By the Court, BONNIFIELD, J.:
This appeal is from a final judgment.
The notice of appeal was filed on the 14th day of October, 1897, and the same was served or attempted to be served on the same day. The judgment was not rendered till the 3d day of November, 1897. Respondent moves the court to dismiss the appeal upon several grounds, one of which is that the notice of appeal was filed and served, if served at all, before the rendition of the judgment.
An appeal may be taken from a final judgment within one year after the rendition of the judgment. (
Such appeal taken before the rendition of the judgment will be dismissed. (Ency. Pl. & Pr. 248; McLaughlin v. Doherty, 54 Cal. 519.) Many other authorities might be cited to the same effect.
The appeal is dismissed on the ground above specified.
It is not material to pass upon the other grounds on which the motion is based.
BELKNAP, C. J.: I concur.
MASSEY, J., being an attorney in the case in the court below, did not participate in this decision.