Page v. Walser

Jan 15, 1920
No. 2437
Reporters:
,
Before:
Coleman

*425By the Court,

Coleman, C. J.:

This is an appeal from an order denying a motion for a change of the place of trial of the above-entitled action from the county of Washoe to the county of Pershing. The motion was based upon the ground that it appears from the face of the amended complaint that the subj ect of the action, or some part thereof, is situated in Pershing County, and that no part thereof is situated in Washoe County.

1. Preliminary to disposing of the appeal upon the merits, it becomes necessary to determine whether or not the court has the authority to consider such appeal upon its ‍​​​​‌​‌​‌​​​‌‌‌‌​‌‌‌‌​‌‌​​‌​​‌‌​‌​​‌​​‌‌​​​‌​‌​‌‌‌​​‌​​‌​‌​‌‌​​‌​​‌​​‌‌‌‌‌‌​‌‌‌​​​​​​​‌​​​‌‌​​​‌‍merits at this time. The transcript on appeal was filed in the office of the clerk of this court on February 4, 1920. On February 7 counsel for respondents served upon counsel for appellants a notice to the effect that on February 13, 1920, they would move the court to proceed to hear the appeal taken from the order denying the motion for a change of place of trial. On the date last mentioned counsel for appellants did not appear, but a letter was presented, wherein they objected to the court’s considering the matter, upon the grounds that the time for the filing of the assignment of errors and of an opening brief had not expired. Counsel for respondents appeared and argued the matter. The Statutes of 1919, p. 55, provide that the appealing party shall, within ten days after the transcript on appeal shall have been filed, file his assignment of errors; and rule 11 of this court provides that the appellant shall, within fifteen days after the filing of the transcript on appeal, serve and file his brief. The statute fixing the time for the filing of the assignment of errors does not apply in this case. While in Coffin v. Coffin, 40 Nev. 345, 163 Pac. 731, we took the position ‍​​​​‌​‌​‌​​​‌‌‌‌​‌‌‌‌​‌‌​​‌​​‌‌​‌​​‌​​‌‌​​​‌​‌​‌‌‌​​‌​​‌​‌​‌‌​​‌​​‌​​‌‌‌‌‌‌​‌‌‌​​​​​​​‌​​​‌‌​​​‌‍that an assignment of errors was indispensable, in the case of Talbot v. Mack, 41 Nev. 245, 169 Pac. 25, we held that, the appeal being from the judgment roll, an assignment of errors was not necessary, and refused to dismiss the appeal; which ruling was adhered to in Miller v. *426Walser, 42 Nev. 497, 181 Pac. 437, and Smith v. Lucas et al., 43 Nev. 348, 186 Pac. 674.

Though the appeal in this case is not on what is technically known as the judgment roll, it is substantially the same. The record consists of the amended complaint, demand for change of venue, affidavit in support of the motion, written stipulation, and the order appealed from. The reasoning in the Talbot-Mack case applies with equal force to the matter now before us.

2. The objection based upon rule 11, relative to the time allowed for the filing of the opening brief by appellant, is not well taken. Rule 23 of this court provides that appeals from orders denying or granting a change of venue will be heard upon three days’ notice when the parties live within twenty miles from Carson City, and when the party served resides more than twenty miles from Carson City one additional day’s notice will be required. Ample notice was given of this hearing! Rule 23, when ‍​​​​‌​‌​‌​​​‌‌‌‌​‌‌‌‌​‌‌​​‌​​‌‌​‌​​‌​​‌‌​​​‌​‌​‌‌‌​​‌​​‌​‌​‌‌​​‌​​‌​​‌‌‌‌‌‌​‌‌‌​​​​​​​‌​​​‌‌​​​‌‍invoked, supersedes rule 11. The latter rule was made to govern in ordinary appeals, but rule 23 is a special rule, applying to the situation here presented, and controls, and was made to expedite hearings in this court upon appeals from an order granting or denying a motion for a change of venue, and other interlocutory orders.

3. We come now to the merits of this appeal. Section 69 of our civil practice act (Rev. Laws, 5011), which is made the basis of the motion for a change of venue, provides that actions for the recovery of real property shall be tried in the county in which it is situated. The affidavit which is the basis of the motion for a change of venue reads:

“ * * * an 0f thg mining claims and property situated thereon, referred to in the amended complaint, * * * is situated in the county of Pershing. * * * ”

A perusal of the amended complaint discloses the fact that the action is not to recover real estate, nor any interest in real estate, but pertains solely to shares of stock in certain corporations owning mining claims *427situated in Pershing County, Nevada. It is now almost universally held that shares of stock in a corporation are personal property (10 ‍​​​​‌​‌​‌​​​‌‌‌‌​‌‌‌‌​‌‌​​‌​​‌‌​‌​​‌​​‌‌​​​‌​‌​‌‌‌​​‌​​‌​‌​‌‌​​‌​​‌​​‌‌‌‌‌‌​‌‌‌​​​​​​​‌​​​‌‌​​​‌‍Cyc. 366; 4 Thomp. Corp. [2d ed.] sec. 3465), and by statute in this state are expressly made so. Stats. 1913, p. 42. There was no foundation whatever for the motion for a change of venue in this case, and the order appealed from was properly entered.

4. It is also contended by respondents that at the time the application for a change of venue was made the time for the filing thereof had expired, and to sustain this contention reliance is had upon the case of Connolly v. Salisberry, 43 Nev. 182, 183 Pac. 391. While it is very probable that the contention is well founded, we are unable to decide the question, for the reason that we are not advised as to when the summons was served in the case, or whether any was served at all. The time within which a party must make a demand for a change of venue begins to run from the date of the service of summons, as pointed out in the Connolly-Salisberry case. We do not means to hold that where a defendant waives the service of summons, and stipulates as to the time in which he shall appear and plead, the time so agreed upon might not control; but such is not the situation here.

5. It is ‍​​​​‌​‌​‌​​​‌‌‌‌​‌‌‌‌​‌‌​​‌​​‌‌​‌​​‌​​‌‌​​​‌​‌​‌‌‌​​‌​​‌​‌​‌‌​​‌​​‌​​‌‌‌‌‌‌​‌‌‌​​​​​​​‌​​​‌‌​​​‌‍contended that the appeal was taken for the purpose of delay, and that appellants should be penalized. Paroni v. Simonsen, 34 Nev. 26, 115 Pac. 415. We are unable to say that the appeal was so taken, unless we are justified in saying that the original motion for a change of venue was for delay. While we are of the opinion that the affidavit for a change of venue is utterly without merit, we do not feel justified in indulging the presumption that counsel and defendants did not have confidence in their application therefor.

For the reasons given, the order appealed from is affirmed, respondents to recover their costs.