228 P.2d 257 | Nev. | 1951
Lead Opinion
By the Court,
Three motions have been argued and submitted to the court. The first is a motion to strike the entire bill of exceptions; the second, to strike certain documents therefrom; the third motion is to dismiss the appeal. We dispose of these in the order named.
Opinion on Motion to Strike
Motion to Strike Bill of Exceptions
Pursuant to stipulation, appellants had to and including September 6, 1950 for service and filing of their bill of exceptions. On August 31, 1950 they served on respondent (and by respondent, we refer herein to respondent Mary Ann Carner), in one volume, the transcript of the proceedings certified by the court reporter, and sundry other documents and pleadings, and on the same date delivered the original to the deputy county clerk at her office. The deputy clerk issued to appellants’ counsel a receipt for these papers, but did not place filing marks thereon until September 14, 1950, at which time she endorsed the same as having been filed August 31, 1950. From her affidavit it appears that her failure to place the filing marks on the original bill of exceptions on August 31, 1950, was an inadvertence. Respondent’s motion to strike the bill of exceptions is based upon the premise that it was not filed until September 14 when the' August 31 filing date was stamped thereon — the time for actual filing having expired September 6. We feel that the point has been
But respondent insists that the bill of exceptions must be stricken for further reasons, namely, that at the time of the service and filing it was neither indexed nor folioed, nor did. it contain the instruments comprising the judgment roll nor certain other papers referring to matters after judgment; that, pursuant to an order of the trial judge, appellants were permitted to withdraw the record from the clerk, to the end that such papers might be bound together, indexed and the folios numbered, that the judge did not settle the said bill of exceptions until September 18, 1950; and that under such circumstances the entire bill of exceptions should be stricken. An affidavit on the part of appellants is to the effect that because of the size of the bill of exceptions, especially as enlarged when annexed to a copy of the judgment roll, notice of appeal, undertaking on appeal, etc., as required by sec. 9385.88, N.C.L.1931-1941 Supp., it would result in an unmanageable single volume in violation of rule IV, subd. 3 (requiring bills of exception to be bound in volumes of a size suitable for convenient handling), and that such purpose was accom
Appellants also call attention to the fact that on September 5, 1950 they entered into a stipulation with counsel for respondent, allowing her to September 15, 1950 for service and filing- of objections to the bill of exceptions served upon her and that the district judge made an appropriate order upon such stipulation, and that this constituted a waiver on the part of such respondent. Respondent says that at the time of such stipulation she was not aware of the failure of filing marks on the original bill of exceptions and so could not have waived her rights. The asserted waiver has much force, but we find it unnecessary to determine the point. We find no such violation of or failure to comply with our statutes or rules of court to justify striking the bill of exceptions. The motion to strike the bill of exceptions in its entirety is denied.
In that case the record was ordered remanded for amendment and when returned, the endorsement of the filing date as of April 15, 1935 appeared thereon.
The three volumes now before us comprise 2,837 folios, indicating approximately 950 pages. They stand six inches high, and would not afford convenient handling in less than three volumes.
Opinion on Motion to Strike
Motion to Strike Parts op Bill op Exceptions
This motion is directed to the documents sought to be stricken as “extraneous documents included in the transcript of record on appeal and which are not a part of the proposed bill of exceptions.” These comprise two groups. The papers identified as belonging to the first group and embraced in folios 1 to 53 in the bill of exceptions are: The complaint, demurrer, answer of appel
Section 9385.88, N.C.L.1931-1941 Supp., reads as follows : “The original bills of exceptions herein provided for, together with a notice of appeal and the undertaking-on appeal, shall be annexed to a copy of the judgment roll, certified by the clerk or by the parties, if the appeal be from the judgment; if the appeal be from an order, such original bill shall be annexed to such order, certified by the clerk or by the parties, and the same shall be and become the record on appeal when filed in the supreme court. A party may appeal upon the judgment roll alone, in which case only such errors can be considered as appear upon the face of the judgment roll.”
Under this section the first group of papers attacked by the motion, those comprising the judgment roll, are not required to be settled and allowed as part of the bill of exceptions. Anderson v. Snell, 57 Nev. 78, 58 P.2d 1041, 62 P.2d 703. The same applies to the notice of appeal and the undertakings. The waiver of undertaking cannot be distinguished from the undertaking itself. No purpose will be served by discussing the propriety of attaching the stipulation granting- respondent additional time to object to the proposed bill of
Motion to Dismiss Appeal
The appeal is from the judgment and from the order denying new trial. The motion is simply “to dismiss the appeal herein.” Appellants have treated respondent’s motion to dismiss as directed to either or both of the appeals, and we shall so consider it. The motion is based upon the contention that as the case of Mary Ann Carner against appellants was consolidated with the case of Forrest John Purdy against appellants on the ground that “said actions involve common questions of law and fact and that a joint trial and consolidation of said actions would avoid unnecessary costs and delay,” and resulted in a judgment in favor of Mary Ann Carner in the sum of $65,000 and a judgment in favor of Forrest John Purdy against the same defendants in the sum of $10,000, pursuant to verdict of the same jury, and as appellants paid, satisfied and discharged the $10,000 Purdy judgment, it follows: “that the satisfaction of the judgment without reservation by said named defendants, appellants herein, in the consolidated case of Forrest John Purdy * * * is an express acknowledgment of liability of said named defendants, appellants herein, of the tortious acts of said named defendants, appellants herein, which the jury in each case found in favor of each plaintiff and against the identical- named defendants, appellants herein, and by reason of the fact that said named defendants paid the judgment entered upon the verdict in the case above specified without reservation, and caused full satisfaction” to be entered; and that they therefore “have no right of appeal in the case of Mary Ann Carner” from the judgment on the jury’s verdict under the same identical facts tried in the said consolidated action. Respondent urges that there was but one issue in the consolidated action.
The two actions grow out of a traffic accident in which Mary Ann Carner was severely injured and Forest
It is patent that three things are there authorized when actions involving common questions of law or fact are pending. (1) The court may order a joint hearing or trial; (2) it may order all the actions consolidated; (3) it may make other orders concerning the proceedings to avoid delay or unnecessary costs. It is conceivable that the court might exercise its discretion in making any one, two or three of the orders contemplated. In the present case it made the single order for
Respondent contends that “the causes of action in each case merged in the verdict of the jury and the judgment entered thereon,” and being so merged, the voluntary payment and satisfaction of one of the judgments was an express acknowledgment of liability to pay both. However, the order that the two causes of action be tried jointly and that they be tried together on the date set for trial did not merge the two suits into a single cause, or change the rights of the parties or make Carner a party to the Purdy suit, or Purdy a party to the Carner suit. Johnson v. Manhattan R. Co., 289 U.S. 479, 53 S.Ct. 721, 77 L.Ed. 1331, 1345. And see cases cited in footnote 8 in the last citation. The supreme court in so holding in that case and in holding further that “consolidation is permitted as a matter of convenience and economy in administration” without merging the suits, was construing rule 42 of the federal rules of procedure. Title 28 U.S.C.A., p. 405. The Nevada
See also Greenberg v. Giannini, 2 Cir., 1944, 140 F.2d 550, 152 A.L.R. 966; Denver City T. Co. v. Norton, 8 Cir., 1905, 141 F. 599, 73 C.C.A. 1; National Nut Co. of Cal. v. Susu Nut Co., D.C.Ill.1945, 61 F. Supp. 86; George v. Leonard, D.C.S.C.1949, 84 F. Supp. 205. We
No. 3640
All motions of respondents denied. Costs to abide final determination of the appeal.
On Motion to Dismiss Appeal
By the Court,
This is respondent’s second motion to dismiss appellants’ appeal. We heretofore denied respondent’s first motion, which was made upon the ground that appellants had paid a judgment to a different plaintiff whose action had been consolidated for trial with this action, involving the same questions of law and fact, and that such payment was an express acknowledgment of liability of appellants. Mikulich v. Carner, 68 Nev. 161, 228 P.2d
Appellants filed their notice of appeal from the judgment and from the order denying new trial. Within the statutory period they served and filed their undertaking on appeal.
The undertaking for costs and damages on appeal filed by appellants recited that whereas they had appealed or were about to appeal “from the judgment [describing it] and also from the order of said court denying defendants’ motion * * * for a new trial [describing it] now, therefore, in consideration of the premises, and of such appeal,” the surety undertakes to pay all damages and costs which may be awarded against the appellants “on the appeal or on a dismissal thereof etc.” Respondent insists that the use of the singular “appeal” in the clause obligating the surety leaves the respondent without security for costs in the two appeals and without even security for costs in either of the appeals by reason of the uncertainty resulting from the wording. They rely on our recent opinion in Chance v. Arcularius, 68 Nev. 51, 227 P.2d 198, and the cases therein cited. In that case, however, and also in the Idaho and California cases cited in the opinion, the undertaking recited that whereas the appellant had appealed from the judgment, the surety became obligated for payment of damages and costs, etc. There is a very material
Our statutory provision for the undertaking is contained in N.C.L. 9385.68, 1931-1941 Supp., and reads as follows:
“An appeal may be taken from an order granting or denying a motion for a new trial and from the judgment at the same time by giving only one undertaking, in the sum of three hundred dollars, for the costs on appeal; and in the notice of such double appeal it may be stated that the appeal is from both the judgment and the order granting or denying the motion for a new trial, and upon the taking of such double appeal the one undertaking to stay execution in the ordinary form, and in the amount required to stay execution on appeal from the judgment, is sufficient to stay the execution.”
There is ample authority for sustaining, under similar statutes, an undertaking on appeals from the judgment and order denying new trial worded precisely as is the present one. Granger v. Robinson, 114 Cal. 631, 46 P. 604, holding the undertaking sufficient because both of the appeals were referred to therein and the bond executed “in consideration of the premises and of such appeal.” Bell v. Staacke, 137 Cal. 307, 308, 70 P. 171, 172, emphasizing the reference in the bond to the appeal from the judgment and from the order and the giving of the undertaking “in consideration of such premises.” In Buchner v. Malloy, 152 Cal. 484, 92 P. 1029, the court states the precise ground raised here: “The claim of respondent is that the original undertaking was void both as to the appeal from the judgment and the appeal from the order denying a new trial, for the reason that it recites the two appeals, and is expressly limited to one, without designating which one,” and declares the
In Magee v. Whitacre, 60 Nev. 202, 96 P.2d 201, 106 P.2d 751 (appearing in Pacific Reporter under its original title of Magee v. Lothrop), this court, after citing California, North Dakota, and Montana cases to the effect that it is necessary that the undertaking refer to each of the appeals and is insufficient if it recites merely the appeal from the judgment, refers to Baker v. Oregon R. & N. Co., 8 Idaho 36, 66 P. 806, which dismissed the appeal because that part of the bond recited both the appeal from the judgment and the appeal from the order. The Idaho case was simply referred to, and this court did not indicate its approval thereof. It was not necessary to the case.
We hold the undertaking in this case to be sufficient. The motion to dismiss the appeal is denied.
After respondent served notice of her motion to dismiss, the court approved, under the provisions of seel 9385.77 N.C.L., but without prejudice to respondent’s
The chairman of the law and legislative committee of the Nevada State Bar in 1949 suggested the amendment of sec. 9025 N.C.L. to conform to sec. 1048 Cal. C.C.P. Nevada State Bar Journal, Jan., 1949, Vol. 14, No. 1, p. 12. Such sec. 1048 Cal.C.C.P. merely provided that actions might “be consolidated, in the discretion of the court, whenever it can he done without prejudice to a substantial right.” However, as reported in the same issue of the Nevada State Bar Journal, id. 20, the civil practice committee of the Nevada State Bar recommended the initiation of proceedings for the adop-' tion of a code of civil procedure based upon the present federal rules. In a compliance pro tanto with the recommendations of the latter committee, and with the approval of the chairman of the law and legislative committee, our present sec. 9025 N.C.L. was submitted to and passed by the legislature.
