Imperial Silver Mining Co. v. Barstow

5 Nev. 252 | Nev. | 1869

By the Court,

WHITMAN, J.:

In this case objection is made by respondents to the consideration by this Court of the findings of fact and conclusions of law of the District Court. Unless they can be considered, nothing remains save the judgment roll and order made subsequent to judgment. It becomes then vital to decide whether the findings are presented in such manner that they, can be noticed.

It was decided in Corbett v. Job et al., (ante, 201) upon this precise point that findings similarly brought up had no proper place in the transcript. This opinion was based upon the statute and the case of Richards et al. v. Howard, (2 Nev. 128) and was not pronounced without reference to the case of Reynolds v. Harris, (8 Cal. 617).

'While the general proposition as stated by appellant’s counsel, as to the construction of statutes adopted in the light of previous judicial interpretation, is fully admitted; and while it is also the fact that the statute of California at the date of Reynolds v. Harris was like that governing the present case; still the rule invoked is not applicable, mainly because in that case no attempt is made to construe the statute, but its force and meaning being substantially admitted, a step outside is taken, and the opinion is wholly based upon the premise that whatever is matter of record in a lower Court, is therefore matter for review in an appellate tribunal.

This does not follow. Many things may be so matter of record, and yet entirely unnecessary or improper under the circumstances of a given case, for the purpose ,of review; and however necessary or proper, can be reviewed only as prescribed- by the Legislature; so that no vested or constitutional right of litigants is thereby impaired.

The statute has plainly and explicitly declared what an appellant shall furnish this Court to entitle him to a hearing; such must be before the Court. An appellant is by no means precluded from bringing up other matter; but the mode of so doing is properly subject to statutory regulation. Whatever does not come up in the judgment roll, or under Clerk’s certificate as by statute provided, must come embodied in a statement.

Findings are no portion of the judgment roll. There is no provision for their introduction into the transcript, which is the record for the consideration of this Court, under special certificate; therefore they must appear, if at all, by means of a statement. The case of Reynolds v. Harris is not construction, but legislation. In 1862 a statute was passed in California making findings part of the judgment roll; perhaps it would be well were there a similar statute in this State, but none such exists.

While it must always be a source of regret to a Court to decide a point of practice in such manner as perchance to affect substantial rights; and while this Court will not on its own motion search such questions, still when presented they must be met; and in cases devoid of ambiguity and presenting no room for judicial interpretation, like the present, the only safe and proper rule which any Court cau follow, is to adhere to the statute. Such course, though productive of present inconvenience, must result in ultimate good. There being then no findings for review, this case must be decided upon the judgment roll and order referred to. In these no error appears, wherefore they must be affirmed. It is so ordered.