195 P. 342 | Nev. | 1922
Lead Opinion
By the Court,
This is an appeal from an order of the court below sustaining respondent’s objection to the hearing of appellant’s motion for a new trial, which said objection
Appellant contends that the notice of intention to move for a new trial was filed within the time as prescribed by the statute for the reason that no notice of the decision of the court was served upon appellant before the filing of his notice of intention to move for a new trial. It is the contention of counsel for appellant that the “notice” of decision, as contemplated and required by section 5323 of the Revised Laws, is “written notice.” In other words, it is their contention that, •notwithstanding appellant had knowledge of the court’s decision, he had the right to wait for a notice in writing of the decision from the adverse party before giving notice to his intention to move for a new trial.
In an opinion filed contemporaneously herewith, in the case of Studebaker Bros. Co. of Utah, v. A. B. Witcher, A. Jurich, George A. McDonald, and Bartley Smithson (No. 2399) 45 Nev. 376, the majority of this court is not in accord with appellant’s position. For the reasons stated in the concurring opinion therein, we affirm the order of the lower court sustaining respondent’s objection to the appellant’s motion for a new trial.
It is so ordered.
Dissenting Opinion
dissenting:
I dissent.
As my reasons for holding that the statute involved means written notice are set forth in the case of Studebaker Bros. Co. of Utah v. A. B. Witcher et al., filed on this date, it is unnecessary to fully restate them.
The case of Cal. Imp. Co. v. Baroteau, 116 Cal. 136, 47 Pac. 1018, cited in the concurring opinion in Studebaker v. Witcher et al., supra, does not change my views. In Cal. Imp. Co. v. Baroteau the question of waiver was involved and decided by the court. Upon this point it was said:
“But where, as in the case at bar, a party makes a*430 formal written motion to set aside findings, reciting in his motion that the court had filed the same, he will not be heard to say that he had no notice of such findings.”
In my opinion the case, is therefore of little weight as against the settled rule that, where a notice is required or authorized by statute in any legal proceedings, the notice must be in writing. There is nothing in the statute to indicate that the word “notice” was not employed in this technical legal sense.
Rehearing
On Petition for Rehearing
Rehearing denied.
