201 P. 548 | Nev. | 1921
By the Court,
This is an appeal from an order denying to the defendants, Schultz Bros., a new trial in an action brought against them by the Mexican Dam and Ditch Company in the district court of Ormsby County.
As the case comes to us upon the motions of the ditch company to dismiss the appeal and to strike from the files appellants’ assignments of errors, it would serve no useful purpose to make a statement of the several issues raised by the voluminous pleadings.
The motions to dismiss the appeal and to strike the purported assignments of errors are that the transcript on appeal contains no bill of exceptions, including errors based upon any ground urged for a new trial, as required by the Civil Practice Act, as amended by the statute of 1915 (Stats. 1915, p. 164, 3 Rev. Laws, p. 3342), that the purported assignments of errors are not based upon any bills of exceptions, and that said assignments are not in conformity with the requirements of said act as amended with respect to assignments of error. Stats. 1919, p. 55.
The answer of appellants to the motion to dismiss is: First, that the statute of 1915 is merely an optional method of appeal from an order denying a motion for a new trial, which may or may not be followed in bringing up the record on appeal from such order; second,
Since counsel for appellants, by their first and second positions, concede and admit that the appellants have ignored and made no effort whatever to comply with the requirements of the act of 1915, with respect to the preparation, service and filing of bills of exception after entry of the order, it is unnecessary for us to consider and discuss whether or not the requirements of the act of 1915 concerning bills of exception is mandatory or directory, or whether or not it is violative of section 17, article 4, of the constitution.
Passing, then, to a consideration of the third position, without a further statement of it, it is conceded that the application for a new trial was made upon the insufficiency of the evidence to justify the decision, that it is against law, and for errors in law occurring at the trial and excepted to by the defendants. Rev. Laws, 5320.
There is appended to the transcript on appeal the certificate of the clerk, which recites that the transcript, from page 1 to 750, is and contains full, true, and correct copies of the pleadings, orders, documentary evidence, and a copy of the stenographic report of the testimony and the record of the proceedings on the trial — all declared by the certificate of the clerk to have been presented to, used and referred to by the trial judge in passing upon the motion.
It is provided in section 5321 of the Revised Laws that when the aplication for a new trial is made upon subdivisions 1, 2, 3, or 4 of section 5320 it must be supported by affidavit. In all other cases it must be made
Section 414 of the Civil Practice Act provides (Rev. Laws, 5356), among other things, that on an appeal from an order the appellant shall furnish the court with a copy of the notice of appeal, the order appealed from, and a copy of the papers used on the hearing in the court below, and a statement if there be one, such copies to be certified by the clerk of the court to be correct.
It is the contention of counsel for appellants that no statement or bill of exceptions is now required in order that the lower court may decide a motion for a new trial, and. that the appellants having furnished this court with copies of the papers used on the hearing of the motion, certified by the clerk to be correct, the appeal from the order must be considered upon its merits, and cannot be dismissed. If we clearly interpret the position of counsel, it is their contention that when the papers used on the motion are certified, as directed by section 414, and the trial court is privileged to refer to the pleadings, records, documentary evidence and stenographic report of the testimony, these papers can be used in the supreme court upon the certification of the clerk, without being embodied in a statement on appeal or bill of exceptions. Prior to the supplementary and amendatory act of 1915, and subsequent to the adoption of the practice act approved March 17, 1911, the court, in the case of Ward v. Pittsburg Silver Peak G. M. Co., 39 Nev. 80, 148 Pac. 345, 153 Pac. 434, 154 Pac. 74, ruled adversely to the contention of appellants, and expressly held that upon an appeal from an order denying a motion for a new trial, when the transcript
In the case of Smith v. Wells Estate Co., 29 Nev. 414, 91 Pac. 315, it is pointed out that the practice act distinguishes between the methods of certification of statements and of transcripts on appeal.
Without going into the question of whether or not the copies of the papers purporting to have been used on the hearing of the motion are properly authenticated, so as to entitle them to be considered as a part of the record on appeal, we are of the opinion that from the beginning of our judicial history the rule of practice has been as above stated in State v. Eberhart Co., supra, and in Irwin v. Samson, 10 Nev. 282.
The failure of appellants to bring up the errors based upon any ground for new trial'by a statement or bill of exceptions has deprived them of the right to have their case considered upon its merits. This is to be regretted. As has been frequently stated, it is always a source of regret to a court to decide a' point of practice so as to affect substantial rights, but when the point is made the only thing for the court to do is to adhere to the law.
The. order denying to the defendants a new trial is affirmed.