Guisti v. Guisti

196 P. 337 | Nev. | 1921

Lead Opinion

By the Court,

Sanders, C. J.:

Phcebe J. Guisti, the widow of Lawrence Guisti, brought her action in the district court of Nye County against John Guisti, the father and heir of her deceased husband, to recover judgment for the sum of $3,000, being the aggregate of sums alleged to have been contributed to her husband during the coverture for the erection of a certain building and in the purchase of a “saloon and gambling outfit” in the town of Beatty, Nevada, and to be relieved against certain alleged fraudulent acts alleged to have been perpetrated upon her by the defendant prior to and in the course of his administration of her husband’s estate, and demanding that the judgment for the moneys so contributed and the arrearages of an allowance made to her as widow be declared a lien upon the realty of said estate-, and for general relief.

The cause was tried before the court without a jury, which ultimately resulted in a judgment and decree in favor of plaintiff. The cause was appealed ,-to this court by the defendant from an order denying to defendant a new trial, and from the judgment. This court, in 1918, rendered its opinion and decision, reversing said j udgment and said order, and in so doing used this language:

“For the reasons given, it is ordered that the judgment and order appealed from be, and the same are hereby, reversed.” Guisti v. Guisti, 41 Nev. 349, 171 Pac. 161.

An application for a rehearing was denied, and the remittitur of this court followed in accordance with its order. Thereafter the plaintiff, Phoebe J. Guisti, made application, in form of a motion in the court below, to allow her to amend her original complaint in the action, exhibiting with her motion the proposed amended complaint. The motion was bitterly protested. Thereafter the court allowed and ordered the offered amended' complaint to be filed. Thereupon the defendant gave notice of appeal, stating in his notice that he appeals to this court—

“from the ruling and order made after final judgment herein by the above-entitled court on the 27-th day of July, 1920, allowing the filing of the amended complaint by the plaintiff, and from the whole thereof.”

Upon the settlement of the bills of exception and the filing .of the record upon appeal, the appellant filed herein his assignment of errors, and for error alleges that the lower court erred in two particulars: First, that the court was without power or authority to allow respondent to amend her original complaint after final judgment in the cause and after final judgment of reversal therein by this court; and, second, that said amended complaint so allowed to be filed substitutes or introduces an entirely new and different cause of action.

There has never been any particular uniformity in the mode pursued by this court in rendering its decision or in entering its judgment. In this instance the judgment of reversal followed the language of the opinion of the judge who delivered it. Except in cases calling for a different judgment or order, the language generally employed relative to its judgments and orders is that the judgment or order is reversed or affirmed, as the case may be.

1. We are now called upon to determine whether a simple judgment of reversal is a bar to further proceedings in the same suit. The question is one of first impression in this court, and we have given it the attention its importance deserves, and our conclusion, in brief, is that the general order of reversal was to leave the litigation in the situation it was prior to the entry of the judgment. In support of this conclusion we cite with approval the early California cases, which have been reaffirmed, followed, and cited in several later cases, of Stearns v. Aguirre et al., 7 Cal. 443, and Phelan v. Supervisors of San Francisco, 9 Cal. 15.

2. The order appealed from not being a final judgment, or an order entered after a final judgment, we are without jurisdiction to consider the contention that the district court erred in permitting the amendment to the complaint to be filed, and we have jurisdiction only to order a dismissal of the appeal, leaving the defendant to proceed in the district court as he may be advised.

It is ordered that the appeal be dismissed.

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Rehearing

On Petition for Rehearing

Per Curiam:

Rehearing denied.