30 Nev. 146 | Nev. | 1908
Lead Opinion
By the Court,
This was an action brought by respondent'in the First Judicial District Court, in and for Ormsby County, to foreclose a chattel mortgage upon a stock of merchandise in Carson City. A judgment was entered in favor of respondent. The notice of appeal, appearing among the papers sent up from the court below, states that the appeal is taken from the judgment, and decree rendered in favor of the plaintiff, and against said defendant H. Harris, trustee, "and also from the order entered in said district court in said action on the 10th day of June, 1905, denying said defendant H. Harris’s (trustee’s) motion for a new trial.”
The record on appeal in this cause was filed in this court on the 7th day of September, 1905. By consent of counsel the cask came on for oral argument before this court on the 23d day of April, 1907, and thereafter time was taken to file briefs in addition to those previously filed. At the time of the oral argument counsel for respondent made and filed a motion to dismiss the appeal, and to strike out all the papers filed therein upon the following grounds: "First, that there is no record whatever in said case before the supreme court, none having been certified to this court by the clerk of the lower court; second, that the papers, documents, and exhibits
Eule 8 of this court provides: "Exceptions or. objections to the transcript, statement, the undertaking on appeal, notice of appeal, or to its service or proof of service, or any technical exception or objection to the record affecting the right of the appellant to be heard on the points of error assigned, which might be cured on suggestion of diminution of the record, must be taken at the first term after the transcript is filed, and must be noted in the written or the printed points of the respondent, and filed at least one day before the argument, or they will not be regarded.” (30 Nev. 11, 12.)
Had the motion been made' in accordance with the provisions of the rule, we would have been compelled to grant it, unless application had been made to correct the transcript as provided for in Eule 7, for the transcript upon appeal in this case shows little pretense of complying with either the statutes or rules of this court governing the same. As the motion was not made in accordance with the provisions of the rule quoted, the respondent is deemed to have waived objections to the transcript that are not jurisdictional. The record in this case is in a more objectionable condition than that in the case of Linville v. Scheeline (recently decided by this court), 30 Nev. 106. Eeferring to the transcript in the latter ease, we took occasion to say: "It is a serious question
" The method of procedure in taking appeals is regulated by statute. Section 327 of the civil practice act (Comp.
While counsel by failing to interpose a proper objection to the record may waive all technical objections-thereto, they cannot waive the essentials of a record necessary to give this court jurisdiction, such as the entire absence of an order overruling a motion for new trial, if such order were ever made. (Corbett v. Job, 5 Nev. 201; Irwin v. Sampson, 10 Nev. 282; Greeley v. Holland, 14 Nev. 320; Marx v. Lewis, 24 Nev. 306; Hart v. Spencer, 29 Nev. 286.) As was said by this court in Sherman v. Shaw, 9 Nev. 152, "it is as unsatisfactory to the court as it is to counsel and litigants to have cases disposed of upon mere questions of practice. But it must be remembered that the rules of practice are as obligatory upon us as upon the parties to a suit; and, if attorneys desire to have their cases examined upon the merits, they must comply with the plain provisions of the statute and the rules of practice, as established by the court.” In this case counsel have at great labor prepared and filed exhaustive briefs upon the merits, and it is especially regrettable that the record is not in such shape to empower this court to determine the questions so ably presented.
While the judgment roll in this case contains papers not authorized to be included therein, it does contain all the essentials. Although it is not certified to otherwise than as hereinbefore stated, in the absence of proper objection, it may be conceded as being before us for consideration. Where there is nothing before the court but the judgment roll, we can only consider any alleged errors which may appear upon the face thereof. In the present case we find no error so appearing, and it becomes our duty to affirm the •judgment, and it is so ordered.
Rehearing
On Petition fob. Rehearing.
By the Court,
Counsel for appellant in his petition for rehearing in this cause takes the position that, as the court below did not put its order denying the motion for a new trial in writing, therefore there was none to copy. So far as the record is concerned, it would have to be entirely an assumption that the court did not make a written order in the premises. But, evén if we were justified in making such an assumption, nevertheless, if an order was made denying the motion, necessarily there would be a minute entry thereof, and, in the absence of a written order, a copy of the minute entry is necessary to be embodied in the statement upon appeal, to clothe this,court with jurisdiction. An appeal from an order or judgment, without a copy thereof in the record, is manifestly futile.
Petitioner asks this court to consider a paper sent up by the lower court, indorsed "On Motion to Settle Statement” and1 which appears to be an order amending the statement on motion for new trial by modifying the language used in the
Some other points are made in the petition, not heretofore presented in the briefs or oral argument. This court has in a number of cases held that questions raised for the first time upon the petition for rehearing will not be considered.
The petition is denied.