Griswold v. Bender, 75 P. 161

Griswold v. Bender

75 P. 161 | Nev. | 1904

Respondent has moved to dismiss this appeal for numerous reasons, one of which is that there is a misjoinder of appeals. The notice of appeal states that it is taken, first, from an order of the district judge made August 4, 1902, rejecting *377 appellant's claim against the estate of Warren D. Epperson, deceased; second, from an order of the court dismissing the suit of appellant against the estate of W. D. Epperson, represented by A. E. Cheney and W. H. A. Pike, Esqs., its attorneys ad litem, and Mrs. W. D. Epperson, as sole heir, etc.; and, third, from an order dismissing the suit of appellant against Charles T. Bender as administrator, etc. One undertaking on appeal, in the sum of $300, was given to secure the payment of costs and damages which may be awarded against appellant. The litigation in this case is based upon a claim against the estate of W. D. Epperson, rejected by the district judge, and sought to be established by. suit.

If the notice of appeal is to control, it is an attempt to bring up in one appeal an order made in a proceeding for the settlement of the estate of a deceased person, and two orders made in separate and independent actions, with one undertaking. The provisions of the statute concerning appeals require an appellant to furnish a written undertaking, with at least two securities, to the effect that he will pay all damages and costs which may be awarded against him on the appeal, not exceeding $300. (Section 3436, Compiled Laws of 1900.) This provision is intended for the security of the respondent, and would be evaded by embracing in one appeal judgments, orders, or proceedings in separate causes. The statute contemplates a separate appeal for each case, unless an order consolidating causes has been made in the trial court, (White, v. Appleton, 14 Wis. 190; Chamberlain v. Sage, 14 Wis. 193; Sweet v. Mitchell,17 Wis. 125; Noble v. Strachan, 32 Wis. 314;De Sylva v. Henry, 4 Stew. P. 409; Ayres v. Lewellin, 3 Leigh, 609; Kelly v. Deegan,111 Ala. 153, 20 So. 378; Renn v. Samos, 42 Tex. 104; Cauley v. Pittsburg (Pa.) 40 Am.Rep. 664; Brown v. Spofford, 95 U.S. 474, 24 L. Ed. 508; Rich v. Starbuck, 45 Ind. 310.)

Appellant relies upon Edgecomb v. His Creditors,19 Nev. 149, 7 P. 533. In that case there were several orders appealed from. All of them related to the question whether certain specified property was exempt from execution. The court treated them as one order upon the subject, requiring but one undertaking on appeal. If the recitals in the notice *378 of appeal be deemed not conclusive, it may be inferred from copies of court orders in the record before us, if they can be considered for any purpose, that instead of two suits there is in reality only one, and that this action was brought against A. E. Cheney and W. H. A. Pike, as attorneysad litein for the estate, and Mrs. Epperson, while the plaintiff was acting as executor of the estate, and as such was disqualified to sue himself; that later, and after his removal on account of his claim, C. T. Bender was appointed executor with the will annexed, in his stead, and as such was substituted as defendant in the suit; and that orders were made, not dismissing the action, as indicated by the notice of appeal, but dismissing Mrs. Epperson as a party thereto, and ordering judgment for costs in favor of herself and Pike, and that, as to the merits of plaintiff's note and account, the suit is still pending against C. T. Bender as administrator with the will annexed, and has never been tried or determined, and consequently, to that extent, is not yet appealable, even if it be conceded that there is only one suit; that the non-appealable order rejecting plaintiff's claim should be ignored; and that only one appeal bond is required. Among the papers are orders — one dated January 23, 1903, quashing the service of summons, and another March 7, 1903, "that the motion to quash the pretended summons be sustained." What the latter means, for what reason it was made, and the grounds of appellant's exception to it, do not appear. But, beyond all this, and fatal to the appeal as held by this court in Quinn v. Quinn, 74 P. 5, 27 Nev. 156, and numerous cases there cited, there is no statement on appeal, no bill of exceptions, and no specification of error, and the certified copies of the court minutes, not being embodied in any statement, cannot be considered.

It is ordered that the appeal be dismissed.

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