Scossa v. Church

182 P. 925 | Nev. | 1920

By the Court,

Sanders, J.:

This is a motion to- dismiss an appeal. The notice of appeal is as follows:

“To Contestees, Clarissa Church, acting for herself and as guardian for Benjamin Barber, and George C. Russell, executor of the estate of Lyman Barber, deceased,and to George Springmeyer,their attorney:

“Please take notice that contesant, Eugene Scossa, in the above-entitled proceeding hereby appeals to the Supreme Court of the State of Nevada from the order of determination, and from the supplemental order of determination of the State Engineer in the above-entitled proceeding, filed and returned in the above-entitled court,' and from the whole thereof, and also appeals from the decree of the above-entitled court, confirming, approving, and affirming said relative determination, and as amended and modified by the supplemental order of determination as made and entered by the State Engineer of the State of Nevada and filed in the above-entitled court, made and entered January 30, 1919, and from the whole thereof, said decree being in favor of defendants, and against said plaintiff, contestant.

“Dated March 12, 1919.”

The respondents move to dismiss the appeal on several grounds, and for convenience we shall dispose of them in their order.

1. First — The order of determination of the state engineer is not an appealable order. This is correct. The only appeal allowed by law in such a case as this is an appeal from the decree of the court affirming or modifying the order of the state engineer. Section 6 (section 36), Stats. 1915, p. 381. An appeal direct to this court from the order of the state engineer is irregular and of no effect.

2. Second — “That no bills of exception were either agreed upon or settled in the lower court, and in the time allowed by law, practice, and procedure, and no bill of exception was filed, herein.” It is obvious from the notice of appeal that this is also an appeal from a decree entered on the 30th of January, 1919, affirming an order of determination of the state engineer. Conceding, but not deciding, that the rules prescribed by the civil practice act, as amended by Statutes of 1915, p. 164, applies to the hearing of an issue raised by the notice of exceptions to the order of determination of the state engineer, duly filed with the clerk of the court (section 6 [sec. 36], Stats. 1915, pp. 378, 381), it does not follow that the failure to preserve errors by a bill of exceptions must result in the dismissal of an appeal. The appeal being from the decree, such failure might result in the affirmance of the decree, but not necessarily in the dismissal of the appeal taken from the decree.

3. Third — “That there was no notice of an undertaking herein.” To make an appeal effectual an undertaking must be filed within.five days after service of the notice of appeal. Rev. Laws, 5330. In the absence of a requirement that such undertaking be served upon the adverse party we are not authorized to dismiss an appeal upon this ground.

4. Fourth — That this court has no jurisdiction of the appeal, in that it appears from the record that the appeal is based upon the ground that the evidence is insufficient to justify the decision of the court, and, it appearing that no motion for a new trial was made and determined before the appeal was taken, the appeal must be dismissed. Rev. Laws, 5328.

Gill v. Goldfield Consolidated Mines Co., 43 Nev. 1, 176 Pac. 784, is cited as an authority.in support of this position. It is proper to state in this connection that that case is now pending upon an order granting a rehearing therein.

This case being an appeal from a decree, we can look to the judgment roll to ascertain whether any error appears. This being true, the appeal should not be dismissed.

The motion to dismiss the appeal is denied.