Pacific Live Stock Co. v. Ellison Ranching Co.

192 P. 262 | Nev. | 1921

By the Court,

Sanders, J.:

The respondent commenced an action in the year 1907, in the district court 'of Humboldt County, to quiet its title by appropriations of 100 cubic feet of water per second, with a priority as of the year 1872, and 25 cubic feet of water per second, with a priority as of the year' 1901, in and to the water of Quin River, against numerous defendants, made up of individuals, copartnerships, corporations, and trustees, and to enjoin the defendants, and each of them, from interfering with its water rights.

The appearances in the case show some of the defendants disclaimed, four defaulted, and others answered, denying generally the rights of plaintiff, and setting up in themselves certain water rights in and to the waters of Quin River. One of the defendants, Lizzie J. Anderson Dunn, cross-complained against plaintiff, and also against one of the codefendants, Ellison Ranching Company. The defendant Ellison Ranching Company cross-complained against plaintiff, and also against a large number of the defendants, including Lizzie J. Anderson Dunn.

The decision of the trial court was actually rendered and filed on the 6th day of January, 1919. The decision purports to establish the priorities and relative rights of plaintiff and each answering defendant, except four specifying in detail the numbers of second-feet of water appropriated by the parties in and to the water of Quin River and its tributaries. The defendant Lizzie J. Anderson Dunn appeals to this court from specified parts of the decree, and from the order denying appellants’ motion for a new trial. She also appeals from an order of the district court denying and overruling her motion to change or modify its findings. Her notices of appeal were actually served upon the plaintiff and the defendant and cross-complainant Ellison Ranching Company, but not upon any or either of the codefendants.

1. The respondent now moves to dismiss the several appeals, upon the ground, among others, that the notices of appeals were not served upon the adverse parties. The burden is upon the party moving to dismiss the appeal to show from the record that a party not served was adverse. Niles v. Gonzales, 152 Cal. 90, 92 Pac. 74; Potrero L. Co. v. All Persons, etc., 155 Cal. 372, 101 Pac. 12.

2. The general test of determining who are adverse parties, within the meaning of our statute concerning notices of appeal, is whether or not such parties would be affected by a modification or reversal of the decision. Bliss v. Grayson, 25 Nev. 329, 59 Pac. 888; Kenney v. Parks, 120 Cal. 24, 52 Pac. 40; Mannix v. Tyron, 152 Cal. 31, 91 Pac. 983.

3. The determination of the questions whether or not the defaulting and answering codefendants in this case are adverse parties, who should have been served with notices of the appeals, and whether or not, as between appellants and respondent, the decree can be reversed, or the findings as made and entered changed, without affecting the rights of the codefendants in and to the waters of Quin River and its tributaries, as adjudicated and determined by the decree, necessitates careful examination of the record, and, we think, incidentally, the merits of the appeals. The same is true of the motion to affirm the orders denying appellants’ motion for a new trial, and to change or modify the findings.

It is the better practice in such cases that an examination of the record should not be made in advance of the hearing upon the merits, but may be urged at the time of such hearing. This is the practice long established by the Supreme Court of California, whose procedure in such cases is not unlike that of ours. Quist v. Michæl, 153 Cal. 365, 95 Pac. 658.

It is ordered, therefore, that the respective motions stand over, to be renewed, heard, and decided when the case is presented upon its merits.