Rickey v. Douglas Milling & Power Co., 204 P. 504

Rickey v. Douglas Milling & Power Co.

204 P. 504 | Nev. | 1922

Lead Opinion

*345By the Court,

DUCKER, J.:

This is an appeal from a judgment and from an order denying a motion for a new trial. Respondents moved to dismiss the appeal from the order, upon the grounds set out in their notice of motion. Briefly stated, these grounds are as follows: That there is on file in this cause no statement on appeal or bill of exceptions properly settled, allowed, approved, or certified to be correct by the judge of the court in which the action was tried or by the court, as required by law. Respondents also moved to strike the purported statement on appeal and bill of exceptions, on the same grounds.

1. What appellant contends is a sufficient record in this case upon which its appeal from the judgment and order denying its. motion for a new trial can be maintained consists of two volumes, labeled, respectively, “Statement on Appeal.” Volume 1 is certified by the clerk of the court in which the action was tried, and contains the judgment roll and other papers. Volume 2 is a transcript of the proceedings had and of the testimony given at the trial, certified by the reporter pro tempore of the court to be a full, true, and correct statement of the testimony given and proceedings had in said court upon the trial of the action. The designation of volumes 1 and 2 as statement on appeal is a misnomer, for neither has been settled nor agreed upon as required by the old practice concerning statements on appeal.

2. Volume 2 cannot be considered as a bill of exceptions, because it has not been settled and allowed by the judge or court, or by stipulation of the parties, as required by law.

3. In addition to the judgment roll, and other papers which have no bearing upon the motion before us, volume 1 contains three documents, denominated, respectively, “Bill of Exceptions” and “Supplemental Bill of Exceptions.” These are signed by the attorneys for the appellant, and purport to contain objections made by counsel for appellant, rulings of the court thereon, *346and the exceptions taken to such rulings. They are sworn to by one of the attorneys for appellant. None of these so-called bills of exceptions purports to contain the evidence adduced at the trial, nor has any of them been settled or approved by the trial judge or the court or by stipulation of the parties.

4. As there is no bill of exceptions in the record on appeal, this case is controlled by the decision in Mexican Dam and Ditch Co. v. Schultz, 45 Nev. 260, 201 Pac. 548. We there held, on an appeal from an order denying a motion for a new trial, that the failure of appellants to bring up the errors based upon any grounds for a new trial by a statement or bill of exceptions deprived them of the right to have their case considered upon the merits.

On the authority of this holding, therefore, the motion to dismiss the appeal from the order denying the motion for a new trial is granted.

As to the appeal from the judgment, we perceive no error in the judgment roll, and the judgment is affirmed.

Rehearing

On Petition for Rehearing

By the Court,

Ducker, J.:

1. Appellant' has filed a petition for rehearing. In the petition it has seen fit to lay stress on the contention that the decision of this court dismissing the appeal and affirming the judgment is based upon a technicality. No assertion could be more contrary to the fact. Appellant’s loss of a hearing on the merits was not due to the application of any technical rule of procedure, but to the failure of its counsel to comply with a plain, mandatory provision of law, whereby the errors claimed to have been committed by the court below could be reviewed by this court.

By force of statute a bill of exceptions is the only means whereby error not appearing upon the face of the judgment roll can be reviewed by the appellate court. A bill of exceptions becomes such only when it is settled and allowed by the judge, or court, or by *347stipulation of the parties. Under the old practice, as we pointed out in the original opinion, the statutory rule for authenticating a statement on appeal was the same. None of the papers appearing in the transcript on appeal in this case, and claimed to be bills of exceptions, was settled or allowed by the trial judge, or court, or by stipulation of the parties. This appears from the record itself, and from the admission of counsel, who claims that no such settlement and allowance is necessary. The claim is groundless, and to allow it would be subversive of our legal system of bringing errors to this court on appeal.

By an act of the legislature approved March 16, 1915 (Stats. 1915, c. 142), a bill of exceptions may be prepared as to any decision, ruling, or order made during three different stages of an action or special proceeding. Section 1, as amended by the legislature of 1919 (Stats. 1919, c. 237), provides for a bill of exceptions as to errors claimed to have been committed after the filing of the complaint and before trial. Section 2 provides for a bill of exceptions as to errors alleged to have been made from the time the action or special proceeding is called for trial, to and including the entering of final judgment. Section 6 provides for bills of exceptions after final judgment. In each case the statute requires that the bill of exceptions shall be settled and allowed by the judge, or court, or by stipulation of the parties. The act of 1915 permits any party at his option to submit the transcription of the proceedings to the court for allowance and settlement as a bill of exceptions. In this regard section 5 of the act provides:

“Sec. 5. In all cases where an official reporter is appointed by the court, under authority of law, or by agreement of the parties, a transcription of the shorthand report of the proceedings in any action or special proceeding, when certified by said reporter to be a full, true and correct transcription of such proceedings, may, at the option of any party, be submitted to the court for allowance and settlement, as the bill of exceptions *348required under the provisions of this act, and the court or judge shall thereupon attach the certificate as herein provided, whereupon such bill of exceptions shall be and become a part of the record.”

The certificate required is mentioned in section 1 of the act — “a certificate to the effect that such bill of exceptions is correct and has been settled and allowed.”

Counsel for appellant did not comply with these provisions of the statute. In volume 2 they simply present a transcription of the proceedings and testimony certified to by the reporter, and maintain that that is sufficient. That it is not sufficient is shown by the provision of the statute to which we have referred.

2-5. It is set forth in general terms in the petition for rehearing that the decision of this court deprives appellant of its property without due process of law; that it is contrary to the law of the land, and contrary to the provisions of the United States Constitution. These are mere allegations, and we should be justified in ignoring them on account of their generality. It is not pointed out in the petition wherein the decision of this court would have the effect alleged. True, counsel for appellant request the privilege of filing a brief upon the allegations made, but this request must be denied for the reason that such practice is prohibited by rule 15 of this court. No argument except such as may be contained in the petition and reply thereto is permissible on a petition for rehearing. We feel justified in assuming, however, that appellant intended to assert that the decision of the court had the effect alleged, in that it deprived appellant of the right of appeal guaranteed by the- constitution. This point must have been overlooked on the original hearing, for it was not urged, either in counsels’ brief or in the oral argument, and for this reason a rehearing could not be granted, even though there was merit in the contention. Beck v. Thompson, 22 Nev. 419, 41 Pac. 1; Brandon v. West, 29. Nev. 135, 85 Pac. 449, 88 Pac. 140; Nelson v. Smith, 42 *349Nev. 312, 176 Pac. 261, 178 Pac. 625; In Re Forney’s Estate, 43 Nev. 242, 184 Pac. 206, 186 Pac. 678. The point is without any merit, however, and we will briefly indicate our views upon it. The question is strictly analogous to the one determined by this, court in Coffin v. Coffin, 40 Nev. 345. A motion to dismiss the appeal in that case was granted for failure to serve and file an assignment of errors as required by section 13 of said act of 1915. Upon the point made by appellant, that to sustain the motion would be to deprive him of his constitutional right of appeal, this court said:

“It is true that the constitution gives the right of appeal, and the legislature, under the pretense of prescribing forms, cannot deprive parties of substantial rights. * * * But it is equally true that the constitutional right of appeal is to be enjoyed and exercised subject to the regulations of law and practices of the court.”

6. Our constitution merely confers appellate jurisdiction upon the supreme • court. It does not prescribe the mode by which an appeal to it may be taken. The legislature, therefore, has full power to prescribe such regulations as to the time and manner of taking an appeal as may not unreasonably restrict the right. It cannot be said that a legislative enactment requiring a bill of exceptions to be settled and allowed by the court in which the action was tried, or the judge, or by agreement of the parties, is an unreasonable restriction of the right of appeal. On the other hand, it must be conceded to be a wise and salutary requirement, fully calculated to acquaint the appellate court with the true status of the controverted questions as they arose in the court below.

The petition for rehearing is denied.