271 P. 336 | Nev. | 1928
The appellant had a right to appeal from the order denying his motion to quash summons, had he elected so to do. This point has been settled by the Supreme Court of Nevada in the cases of State v. Moore,
Every direction of the court or judge made or entered in writing and not included in a judgment, is denominated an order. An application for an order is a "motion." Rev. Laws, sec. 5362.
A judgment is a final determination of the rights of the parties in the action or proceeding. Rev. Laws, sec. 5238.
The case of Nesbitt v. Chisholm,
The general weight of authority does not support appellant's appeal from a default judgment. 3 C.J. 604; 2 Enc. of Pleading and Practice; 6 Enc. of Pleading and Practice, 223; Paul v. Armstrong,
The Supreme Court of Nevada has repeatedly expressed itself in accordance with the general ruling adopted elsewhere, that the upper court will not set aside the decision of the lower court upon a question where there are substantial facts to support the judgment. State v. C. C. Railroad,
1. In support of the motion to dismiss two points are made. It is first contended that since the appeal is from the judgment and not from the order denying the motion to quash, the appeal must be dismissed for the reason that the order was an appealable order, and, no appeal having been taken therefrom, error in denying the motion, if any, cannot be considered.
In support of the contention that the order might have been appealed from, our attention is directed to Tiedemann v. Tiedemann,
Section 5329, Rev. Laws, as amended (Stats. 1913, p. 113), provides when an appeal may be taken, and no appeal can be taken except when authorized by statute. Nowhere does our statute provide that an appeal may be taken from an order denying a motion to quash a summons, or the service thereof; hence it is clear that the defendant had no right of appeal from the order in question.
The two cases are not in point. Those were cases in which the motion to quash was sustained, and hence the order was appealable since it put a finality to the proceeding, as pointed out in the respective opinions. No such result followed the order complained of in this case.
2. We come now to the contention that the motion must be granted since there is no appeal from a default judgment.
In support of the contention made, reliance is had upon the case of Paul et al. v. Armstrong,
We do not think the opinion in either of the cases mentioned is authority for the contention made. In the first case the opinion states:
"In this cause there was no answer, no issue, either of law or fact — of course there could be no trial in the probate court. The statute says that, upon an appeal, the case shall be tried de novo in the appellate court. That is, as I understand it, in the same manner, with the same effect, and upon the issues tried in the" lower court.
It is thus seen that that opinion can be no authority in the instant case, where an issue of law is made by the motion to quash, which was heard and determined.
But if the facts in that case were such as to make it controlling, its force and effect is greatly weakened by the opinion in the second case mentioned, wherein, after pointing out the reason why the first-named case is of little weight, the court, in considering the weight to be given to certain New York cases relied upon, observed that in those cases no question of the regularity *149 of the default was raised. The court then goes on to say:
"This is a very different case from that. Here the default was irregularly taken, and judgment is entered without proper authority. In such case it has repeatedly been held in California that an appeal is the proper remedy. * * *"
The court held the appeal proper and reversed the default judgment.
Nor is the case of Martin v. District Court in point. As appears from the opinion in that case, "there was no issue of law or fact to be tried."
3. This court may consider the correctness of a ruling of the lower court on the motion to quash, on appeal from the judgment. Potter v. L.A. S.L.R. Co.,
For the reasons given, the motion is denied. *150