229 P. 387 | Nev. | 1924
Lead Opinion
Default was entered through mistake, inadvertence, surprise, and excusable neglect of appellants' counsel under circumstances warranting and requiring court to exercise discretion, as provided in 5084 Rev. Laws, to set it aside and allow hearing on merits.
This section has been liberally construed. Where motion to set default aside is made in due time and meritorious defense is shown, relief will be granted. Kidd v. Four Twenty Mng. Co.,
Where complaint fails to state cause of action, any judgment entered thereon can be vacated in proper action. Where court acquires no jurisdiction and default *245
is entered, judgment is void and will be set aside on application. Continental Gin Co. v. Arnold, L.R.A. 1918B, 511; Ward v. Bank, 225 P. 497; W.U. Tel. Co. v. Beach, 1034.
Right of appeal from district court is governed by chapter 46 of the civil practice act, as amended, and does not provide for appeal from order refusing to set aside default before final judgment. Rev. Laws, 5325, 5329, as amended 1913 Stats. 113; Botsford v. Langan,
Appeal taken before rendition of judgment will be dismissed. Elko-Tuscarora Mer. Co. v. Wines,
Where record shows mere sustaining of demurrer without judgment, appeal will be dismissed. Keyser v. Taylor,
Appeal cannot be taken from judgment or any part thereof until all rights of parties are determined and fixed. Lake v. Lake,
Order setting aside default before entry of judgment is not appealable, it not being order after judgment nor interlocutory order within Code Civ. Proc. sec. 963. Savage v. Smith,
In absence of bill of exceptions matter cannot be reviewed on appeal, though there may be question whether such objection should be raised on merits of appeal, rather than on motion to dismiss.
Appeal should be dismissed because no record of appeal was served as required by rule xiii, sec. 3; 1923 Stats. 165.
Refusal to vacate order of default before judgment is mere interlocutory, reviewable only on appeal after final judgment. Jordan v. Hutchinson, 81 P. 867.
1. We may say generally that there is no merit in either of the last two grounds. Section 2 of chapter 97, Stats. 1923, provides that no appeal shall be dismissed for any defect or informality in the appellant's proceedings, until the appellant has been given an opportunity to correct such defect. This is an excellent provision and should be construed most liberally.
2. The first ground of the motion is well taken. Section 5329, Rev. Laws, as amended by chapter 91, Stats. 1913, p. 113, designates the judgments and orders from which an appeal may be taken. Paragraph 1 of that section provides that an appeal may be taken from a final judgment within six months. Nowhere in the statute is there an authorization of an appeal from an order refusing to set aside a default, and such is the order sought to be appealed from in this case.
3. The right of appeal is fixed by the statute, and there can be no appeal except as provided therein. We have no discretion in the matter. No final judgment having been rendered, and this not being a case falling within the terms of either of the other paragraphs of the law authorizing an appeal, the motion must be sustained. Sherman v. Standard M. Co.,
Appeal dismissed.
Addendum
Order sought to be appealed from is not appealable, being made before final judgment and not of character from which appeal is authorized. In earlier appeal, this court referred to 5329 Rev. Laws, as amended 1913 Stats. 113, and pointed out that statute designates judgment and orders from which appeal may be taken, and says that nowhere in statute is there authorization for appeal from order refusing to set aside default. Court held, in effect, not that appeal was premature, but that order was not appealable.
More than sixty days had intervened between date of making order and filing notice of appeal, Statute quoted is only section providing for time within which appeals may be taken. After providing that appeal from final judgment may be taken within six months, section deals with orders and interlocutory judgments and fixes maximum at sixty days. When appeal is not taken within time provided motion to dismiss must be sustained. Clark v. Turner,
No appeal has been perfected from order in that no copy of notice was served before, at time or, or within three days after filing notice. 5330 Rev. Laws.
Service of notice is jurisdictional and cannot be waived. Reese M.C. v. Rye Patch M. Co.,
Notice of appeal from order is combined in same paper with notice of appeal from judgment and is attempt to combine two appeals in one notice. 5330 Rev. Laws, in providing what two appeals may be combined in same notice, excludes all others. This not being appeal from judgment and order denying motion for new trial, two appeals cannot be united in same notice.
Record on appeal consisting of only cost bill, judgment, certificate, notice and certificate to record is insufficient. 5273 Rev. Laws. *249
Except in case of willful intent to delay, party with good defense should be allowed to set it up, notwithstanding negligence on part of himself or counsel. Howe v. Coldren,
Purpose of remedial statute is to grant relief to litigants who can show good defense, who have been guilty of only carelessness with no willful or fraudulent intention to delay.
Where court acquires no jurisdiction to enter judgment but judgment is entered by default it is void and will be set aside on proper application. Continental Gin Co. v. Arnold, L.R.A. 1918B, 511,
Default judgment on complaint which states no cause of action will be reversed. 5084 Rev. Laws; Ward v. Bank, 225 P. 497; Johnson v. Gooch, 211 P. 551.
Affidavit of merits made by attorney, with copy of proposed answer is sufficient. Doubt should be resolved in favor of applicant. Sherman v. S.P. Co.,
The plaintiff has moved to dismiss upon several grounds: (1) Because no appeal can be taken from the order mentioned; (2) because more than 60 days have elapsed since the making of the order mentioned and before an appeal was attempted to be taken in the matter; (3) because no copy of the notice of appeal was served upon the plaintiff or its attorney within three days after the filing of said notice of appeal, nor at the time of or prior to the filing of said notice; (4) that the notice of appeal from said order is combined in the same paper with a notice of appeal from the judgment which was made and entered in said action on December 20, 1924, and is an attempt to combine two appeals in one notice, not authorized by law; (5) that there is not a sufficient record on appeal from either the order of the Sixth judicial district court of the State of Nevada, in and for the county of Humboldt, of date March 5, 1924, denying the motion of the defendant county of Lander to set aside the default entered against said county of Lander, or from the judgment made and entered in said mentioned court on the 30th day of December, 1924, to properly, or at all, present the questions and matters sought to be urged and raised on either of said appeals to the Supreme Court of the State of Nevada, in this, that the said appeals are each and both taken upon the judgment roll alone, and there is no judgment roll in the said record on appeal. *251
Counsel for respondent calls our attention to section 5330, Revised Laws, which provides:
"An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same or some specific part thereof, and within three days thereafter serving a similar notice or copy thereof on the adverse party or his attorney."
Upon the hearing an affidavit was read to the effect that no notice or copy of the notice of appeal was served upon the plaintiff or its counsel as provided by law. It was stipulated that counsel for appellant attempted to serve the notice upon counsel for the plaintiff and, failing to find him in his office, handed a copy of the notice to another party to be served. But that is the only showing in the matter.
1. The filing of a notice of appeal with the clerk and the service of it or a copy thereafter upon the adverse party or his attorney are necessary to the perfection of the appeal. No mere effort to make service will satisfy the statute. There must be an actual service, as provided in section 5369, Revised Laws, as amended by statute (1923 Stats. pp. 103, 104).
That the filing and service of the notice in question are jurisdictional is not questioned by counsel for appellant, and that such is the law is well settled in this state. This court, in Spafford v. White River Valley L. L. Co.,
"In order to take and perfect an appeal, the appellant should first file his notice of appeal, next serve it, and within five days of the filing of the notice, file an undertaking on appeal; the service of the notice must precede or be contemporaneous with the service."
See, also, State v. Brown,
2, 4. In the cases mentioned the point in question was as to the order of serving; the court holding that, when the service was not in the order prescribed by the statute, the appellate court acquired no jurisdiction. In the instant case, where there was an entire lack of *252
service of the notice, there would be even stronger ground to sustain the conclusion that this court acquired no jurisdiction of the appeal. While what we say disposes of the entire appeal, we may add that if the notice had been properly served, the mere statement in the notice to the effect that the defendant appeals from the order as well as the judgment would in no way oust this court of jurisdiction. An appeal will not be dismissed merely because the notice of appeal contains more matter than is required. On an appeal from a judgment, this court may review intermediate orders without reference thereto in the notice of appeal, and a notice such as complained of would not be prejudicial. Potter v. L.A. S.L.R.R. Co.,
5, 6. Counsel for appellant contends that, pursuant to section 2, Stats. 1923, p. 164 (which provides that no appeal shall be dismissed for any defect or informality in the appellate proceedings until the appellant has been given an opportunity to correct the defect), the appeal in this matter should not be dismissed without his being given an opportunity to serve a copy of the notice of appeal on the respondent. It cannot be said that the failure to serve a copy of the notice of appeal was a defect or informality. It was a total failure to comply with a jurisdictional requirement of the statute. There is a wide difference between rectifying a defect or informality and the performing of an act which was not done at all, especially when that act is jurisdictional as is the service of a copy of a notice of appeal. In this connection we deem it proper to suggest, if the time within which an appeal may be taken has not expired, that a new notice may be filed and served. Douglass v. Thompson,
Other matters were discussed upon the argument, but we do not deem it necessary to consider them.
It is ordered that the appeal be dismissed. *253
