201 P.2d 1080 | Nev. | 1949
Respondent cites the case of City of Fallon v. Churchill County Bank Mortgage Corporation,
Respondent also calls our attention to Taylor v. Taylor,
"Counsel for respondent, in the last-mentioned motion, sets forth grounds not contained in their first motion, *16 notwithstanding the order of the court, in giving permission to again move, limited the grounds of such new motion. Notwithstanding this fact, it is sought to have the bill of exceptions stricken and the appeal dismissed for a defect which existed when the first motion was made.
"We do not deem it necessary to dispose of the contention of appellant that respondent waived the grounds of the motion not contained in the first motion, though we are inclined to the view that the contention as to waiver is good."
1, 2. Respondent, in answering appellants' objections, contents itself in the main with insisting that the matter lies in the sound discretion of the court. We are inclined to exercise that discretion by an order which will permit consideration of the appeal on its merits. See opinion on former motion, supra. We are the more persuaded to this view because the action is one by the state on relation of its department of highways in which the trial court granted the plaintiff's suit for condemnation and fixed the compensation. Respondent conceded at the oral argument of the second motion that there was some force to appellants' objections, but urged that we should reconsider our action in denying respondent's first motion to strike for the reason that we had overlooked certain features of the requirements of our statute governing bills of exceptions and reporters' transcripts in lieu of bills of exceptions. We are satisfied, however, that the opinion on respondent's first motion to strike correctly disposed of all points there raised.
3. Included in the motion now before us is also a motion to strike sundry additional papers on the ground that they do not comprise a part of the judgment roll as defined by statute and are not included in any bill of exceptions settled or allowed by order or stipulation. These papers were not attacked by the first motion nor is any reason assigned for such failure. Appellants' *17 objections to our consideration of the present motions are well taken.
The motion to strike the transcript upon the new grounds assigned is denied. The motion to strike the additional portions of the record is likewise denied. Each party will pay its own costs incurred in the present motion.
HORSEY, C.J., and EATHER, J., concur.