No. 2120 | Nev. | Jul 15, 1914
By the Court,
Respondent has moved to dismiss the appeal on the grounds that no appeal.was taken within six months after the entry of the judgment in the district court, and that appellant did not, within twenty days after the rendition of the judgment, or within twenty days after the making of the order denying the motion for a new trial, or at any time, file or serve any statement on appeal. The judgment was entered on the 24th day of May, 1918, in favor of the plaintiff. The order denying the motion for a new trial was made on the 26th day of January, 1914. Notice of appeal was filed and served on the 9th day of February, 1914, and within the sixty days allowed by the statute for appealing from an order refusing a new trial, but not within the six months after rendition allowed for appeal from the final judgment.
A " Memorandum of Exceptions, ” so entitled, and prefaced with the statement that "the following memorandum of exceptions is herewith submitted and relied upon in support of defendant’s motion for a new trial, ” appears in the record, with an indorsement signed by the district judge, stating that "the above exceptions, and each and all of them, are hereby and herewith allowed. ” The certificate of the clerk, dated the 9th day of February, 1914, is attached, stating that the "bill of exceptions” was filed
Under the rule relating to the diminution of the record, appellant offers the minutes of the court. Unless these, when admitted, show that the transcript of the testimony and proceedings is in some way properly considered with this appeal, respondent may renew his motion to have this transcript stricken from the files. The question as to whether other papers should be eliminated from the files may be considered in practice as similar to what we conclude regarding the memorandum of exceptions. Under the different provisions of the practice act intended to simplify appeals, they may be taken in some instances under bills of exceptions, which are distinguishable from the memorandum of exceptions required when a motion for a new trial is made because of error in law occurring at the trial. The statute is specific in demanding that this memorandum shall contain a verified statement of the attorney that in his judgment the exceptions relied upon are well taken in the law. Differently, the bill of exceptions upon which an appeal is taken is one to be settled by the judge. If such a bill of exceptions were so properly settled, it would be a bill of exceptions upon which an appeal could be taken, although it might be improperly labeled a "memorandum of exceptions.”
The case will be retained for consideration on appeal for such questions as may duly appear from the record and from the minutes of the court- when admitted to have been properly before and considered by the district judge in passing upon the motion for a new trial. 'The papers, not appearing to have been before or so considered by the court upon the hearing of the motion for a new trial, or properly before this court, may later be stricken from the files. As to which papers these should be, counsel may present their views when argument is had upon the merits.