186 P. 674 | Nev. | 1920
By the Court,
This is an action in replevin. A motion for a new trial was denied in the lower court, but the appeal is taken from the judgment alone by M. B. Moore, who was an intervening defendant.
The record on appeal was filed with the clerk of this court on the 6th day of August, 1919, and thereafter, on the 24th day of August, 1919, appellant filed his assignment of errors with said clerk. On the 13th day of September, 1919, respondent filed a motion for an order striking the assignment of errors, dismissing the appeal, and affirming the judgment. The ground of the motion, as set forth in the notice thereof, is that no assignment of errors was served on respondent, or filed with the clerk of the supreme court, within ten days after the transcript of the record on appeal was filed in this court, as required by law. In this respect section 2 of an act to amend sections 10 and 13 of 'an act entitled “An act supplemental to and to amend an act entitled ‘An act to regulate proceedings in civil cases in this state and to repeal all other acts in relation thereto,’ approved March 17, 1911,” approved March 16, 1915, approved March 10, 1919, provides:
“Within ten (10) days after the transcript of the record on appeal has been filed in the supreme court, the party or parties appealing shall serve upon the adverse, parties and file with the clerk of the supreme court an assignment of errors, which assignment shall designate generally each separate error, specifying the lines or folios, and the pages of the record wherein the same may be found. Any error not assigned shall not be considered by the supreme court. If the party fails to file such assignment within the time limited, no error shall be considered by the supreme court. The assignment of*351 errors herein provided for shall be typewritten or printed, paged, and the lines or folios numbered, and the appellant shall furnish three copies thereof for filing in the supreme court.” Stats. 1919, p. 55.
We cannot acquiesce in either of these contentions and think that they were decided adversely to appellant’s view in the case of Coffin v. Coffin, 40 Nev. 345, 163 Pac. 731, in which the appeal was dismissed for failure to serve and file an assignment of errors, within,the time allowed by section 13 of the act of 1915. The only substantial change in the section as amended by the act of 1919 is that, in the latter act the time in which an assignment of errors must be served and filed begins to run after the transcript of the record on appeal has been filed in the supreme court, instead of from the time the appeal has been taken from the order or judgment, and ten days is allowed, instead of twenty as in the former act.
In so far as the question on motion to dismiss is concerned, there is no distinction in principle between the case of Coffin v. Coffin and the case at bar. Both were tried on the merits in the district court, and in each a motion for a new trial was made and denied. The only difference is that in the former case the appeal
The cases of Talbot v. Mack and Miller v. Walser, supra, are easily disinguishable from the case at bar. In each of those cases the appeal was from an order, sustaining a demurrer to the complaint and judgment thereon, while in the instant case the appeal was taken after a trial on the merits in the district court. In both of the former cases it was held that, where the appeal is upon the judgment roll alone, the errors appearing upon the face of the judgment roll need not be presented by an assignment of errors. It was not held or intimated in either of these cases that a bill of exceptions, as contemplated by the act of 1915, necessarily becomes a paid of the judgment roll, obviating the requirement of an assignment of errors. Such a ruling would render section 13 of the act requiring an assignment of errors of no force and effect in any case, manifestly against the plainly expressed mandate of the statute. True, in Talbot v. Mack this court recognized that the bill of exceptions taken to the order sustaining the demurrer,
“in all other cases, the pleadings, a copy of the verdict of the jury, or finding of the court or referee, all bills of exceptions, taken and filed. * * * ”
Counsel insist that the bill of exceptions in this case, and in all cases when properly taken and allowed, becomes a part of the judgment roll by force of the foregoing section, requiring the clerk to include “all bills of exceptions taken and filed” in the roll. We cannot concede this interpretation. This section prescribes a definite time when the clerk shall make up and file the judgment roll, and designates the papers to be then included therein. It reads:
“Immediately after the entry of judgment, the clerk must attach tqgether and file the following papers, which constitute the j udgment roll.”
Then follows a designation of the papers. A bill of exceptions, or more than one, may or may not have been taken and filed at or prior to the time this act of assembling the judgment roll is required to be done. If so taken and filed, all are required to be included therein. A bill of exceptions which may thereafter be settled and allowed in accordance with the act of 1915 becomes no part of the judgment roll, but must be annexed to a copy thereof, if the appeal be from a judgment, as provided in section 11 of said act. It appears from the record in this case that the bill of exceptions was settled and allowed long after the entry of judgment, and after a motion for a new trial had been denied. Though properly a part of the record on appeal, it is no part of the judgment roll.
“The petition required [petition for an appeal containing assignment of errors] is in the nature of a pleading, and should state the case which the party applying for the appeal wishes to make in the appellate court. It ought to assign clearly and distinctly all the errors relied on for a reversal of the case, so that the opposite party may know what questions are to be raised in the appellate court, and not have new questions sprung upon him at or just before the hearing of the cause, when there may not be sufficient time or opportunity for meeting them.”
It is urged that the purpose of the statute is accomplished by rule 11 of the supreme court rules, requiring the filings of points, and with authorities, which shall contain such brief statement of the facts as may be necessary to explain the points made. Even if we were
If we correctly understand the position of counsel, they assert that in the civil practice act, prior to the amendatory and supplemental act of 1915, errors at law occurring at the trial have been so defined as cause for a new trial, and that all other causes for a new trial have been classified as grounds. From this, and other premises which we will hereafter mention, they deduce the conclusion that, in the enactment providing for an assignment of errors, the term is employed in the same sense and embraces such errors to the exclusion of all causes for a new trial that fall into a different category. Without conceding the assertion that the civil practice act does not allude to errors at law occurring at the trial as a ground for a new trial, we think that, even if it does not, the assumption that the legislature by the act of 1915 therefore intended only those errors to be embraced in an assignment of errors is too shadowy to be indulged as a legitimate inference. It ignores the office and purpose of an assignment of errors, to point out for the benefit of the court and opposite party the errors relied upon for a reversal.
Counsel concede, or must concede, that a verdict or decision based on insufficient evidence is an error, notwithstanding the practice act in relation to new trial’s designates it a cause, and also as a ground for a new trial. No reason appears why it should not be assigned, as well as any other error upon which a party relies. In
A review of the practice acts of this state, and amendments, reveals that insufficiency of the evidence to support the verdict has long been required in an assignment of errors. In the old practice act, adopted in 1869 (Stats. 1869, c. 112, sec. 197), the particulars wherein it was thus deficient were required to be specified. By the amendment to this act in 1893 (Stats. 1893, c. 89) it was provided that it was sufficient assignment of error in that respect to specify that the verdict or decision is not .supported by the evidence, or is contrary to the evidence. In sections 389 and 390 of the present civil practice act, relating to a statement on appeal, specification of error on this ground was necessary. These sections of the practice act have been repealed by the act of 1915, which was designed, as said by this court in Gill v. Goldfield Consolidated Mines Co., 43 Nev. 1, 176 Pac. 784, “to be and to operate as a complete revision of the practice then in vogue respecting statements on appeal, and to substitute therefor in toto a system of bills of exception.”
Assignments of error as to insufficiency of the evidence having been constantly embodied in the practice acts, the old and the new, from 1869 forward, it is not unreasonable to assume that, if it were intended by section 13 of the act of 1915 to make a radical change by omitting the requirement from the practice, such intention would have been clearly expressed. It is argued that the intention to embrace only errors at law occurring at the trial is also inferable from that part of the language of said section 13, as amended by the act of 1919, which provides that the “assignment shall designate generally each separate error, specifying the lines or folios, and the pages of the record wherein the same may be found”; that this cannot be complied with
“The statute is express and peremptory in its terms; it is not a mere matter of form that can be waived or dispensed with by the agreement of the parties or lenity of the court, but it is one of substance.”
The contention that an assignment of errors was waived is based on the fact that counsel for appellant requested and procured from the attorneys for respondent an extension of time to file their reply brief. They cite the case of Miller v. Walser, supra, as an authority for this proposition. There one of the grounds of the motion to dismiss was the failure to file a transcript of the record on appeal within the time required by rule 2 of this court. The attorneys for respondent, after the transcript on appeal was filed, obtained two stipulations from counsel for appellant extending time to serve and file points and authorities, reserving therein no objections as to the time when the transcript on appeal was filed. No timely motion to dismiss the appeal was made •on the ground stated. We held that these facts were
Counsel for respondent in the case at bar insist that, when an assignment of errors designates as error insufficiency of the evidence to j ustify the verdict or decision, it must specify wherein the evidence is insufficient. This question is not before us. No assignment of errors was filed within the time specified by statute, and the question is as to whether such an assignment is necessary, when the error complained of is based on the ground of insufficiency of the evidence to justify the decision, or that it is against law, and not as to the sufficiency of the assignment. It follows, from our conclusions, that we have no alternative but to grant the motion.
It is therefore ordered that the assignment of errors filed herein be stricken from the files, and the judgment appealed from be affirmed.