74 P.2d 1179 | Nev. | 1938
Lead Opinion
Nowhere do the statutes give expressly to the trial court the power to strike from the bill of exceptions. If the trial court has this power it must be inferred. If the trial court does not have this power, it would seem that it should lodge in the supreme court, for there must be some procedure for the elimination of useless, redundant and irrelevant matter from a bill of exceptions. The power to strike seems to us to be inherent in the supreme court, from the very nature of its appellate powers. Moreover, it would seem to follow from, if it is not within, the purview of supreme court rules VII and VIII.
Wayne T. Wilson and Emerson J. Wilson, Attorneys for Appellants, did not file a brief on the motion to strike.
2, 3. This court has no general or revisory power over *255 a bill of exceptions. When settled in the manner and within the time prescribed by law, the bill of exceptions becomes a part of the record on appeal. It is, however, not subject to amendment in this court, except, in effect, in the single instance of a trial judge refusing to allow an exception in accordance with the facts. In that event the party aggrieved may petition the supreme court to prove the same and shall have the right so to do. And such exceptions as are allowed by said supreme court shall become a part of the record of the cause. Chapter 32, Stats. 1937, p. 64, sec. 31. The methods prescribed for settlement of a bill of exceptions are found in that chapter. See page 63, sec. 31 et seq.
4. In this case the method chosen for settlement was by the trial judge. His power in this respect conferred by said statute is general, limited only to the extent above mentioned. The logic of the statute is well expressed in Re Gates,
As stated in Hyde v. Boyle,
See, also, Landers v. Landers,
The motion to strike portions of the record on appeal should be denied.
It is so ordered. *257
Addendum
The stipulation or agreement between counsel for the public service commission and counsel for respondent, Martha Landis, that a consent judgment might be entered against the public service commission was an unlawful surrender of the police power delegated to the public service commission, and the judgment entered by direction and consent of the parties was not a judicial determination by the court, and was void, and the said judgment is not res judicata, and no trial was had prior to the filing of the complaint in intervention.
The police power is a governmental function, and neither the state legislature nor any inferior legislative body to which a portion of such power has been granted can alienate, surrender or abridge the right to exercise such power by any grant, contract or delegation whatsoever.
Section 8563 N.C.L. provides that a third party may intervene in an action "before the trial." The decisions construing similar statutes are unanimous in holding that intervention after final judgment is entered is not "before the trial." Langmire v. Irrigation Dist. (Wash.),
A judgment entered upon the default of the defendant, and a judgment entered by the consent of the parties are equivalent to a "trial" within the meaning of the word as used in the intervention statutes. Safely v. Caldwell, supra; Hibernia S. L. Assoc. v. Churchill, supra; 20 R.C.L. 688; 47 C.J. 110. *258
The action was numbered 5162 in the trial court. There was also pending in the same court an action in which the issues were the same, numbered 5101.
Demurrers were filed by the defendants in both cases, and were set down to be heard together. At the hearing the demurrers in action 5101 were argued, submitted, and overruled. Defendants therein declining to plead further, judgment was entered against them. Thereupon, the attorney for the commission in the instant action stipulated that its demurrers also be overruled, and that judgment should be entered in favor of respondent Martha W. Landis and against the public service commission. Accordingly, such judgment was rendered on February 4, 1936, and entered on the following month. The commission was represented by the attorney-general. *259 The pendency of these suits was known to appellants. On January 25, 1937, they obtained leave ex parte from the court to file said complaint in intervention. On July 16, 1937, on motion of respondent Martha W. Landis, the order for intervention was vacated, as previously stated.
1. Respondent contends that the order should be affirmed because the complaint in intervention was not filed in time, and this was one of the reasons assigned by the court for granting the order. Section 8563 N.C.L. provides, in that respect, as follows: "Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both."
As appears from the statement of facts the complaint in intervention was not filed until almost a year after judgment. Necessarily this was not before trial, as the statute provides. The court in Kelly v. Smith et al., Middlecoff, Intervener,
Under a statute similar to ours, the courts in Massachusetts Bonding Ins. Co. v. Novotny,
However, appellants contend that there was no trial because the judgment is void, and consequently their complaint in intervention was filed in time.
It is argued that there was no trial on this account, for the reason that the court was without jurisdiction, first, because the complaint does not state a cause of action; and, second, because the attorney-general was without power to consent to the judgment. While the contention is novel, appellants are not exactly pioneers as to the proposition that intervention is a proper remedy to vacate a judgment alleged to be void, and cause a trial to be had with interveners as a party. The attempt was made in Seattle N. Ry. Co. v. Bowman et al.,
2-4. A complaint in intervention is a pleading afforded a third person, if timely filed in an action or proceeding, to have determined therein an interest in the matter in litigation which may be adverse to one party or both. It was not intended that such a pleading could in addition to that function perform the office of a motion to vacate a void judgment, or a suit in equity to attack it directly. Appellants have referred us to no precedent where statutory intervention has been so employed, and *261 we know of none. An intervener must take the action as he finds it. Cahn v. Ford et al., S. Levy, Jr., Intervener, 42 La. Ann. 965, 8 So. 477; Freeman on Judgments, 5th Ed., vol. 1, p. 898.
The order appealed from should be affirmed.
It is so ordered.