6 Nev. 20 | Nev. | 1870
By the Court,
This appeal is from the order of the District Court denying appellant’s motion for a new trial, and from the final judgment against
The statute regulating motions for new trials provides for.three cases touching statements, as follows: * * “ When the statement is agreed to, it shall be accompanied with the certificate either of the parties themselve sin fact, or their attorney, that the same has been agreed upon and is correct. When settled by the Judge or referee, it shall be accompanied with his certificate, that the same has been allowed by him, and is correct. When no amendments have been filed, the statement shall be accompanied with the certificate of the clerk of that fact.” The so-called statement in this transcript falls within neither of these categories.
With regard to affidavits used on motion for new trials, the statute provides: “ To identify the affidavits, it shall be sufficient for the Judge or clerk to indorse them at the time, as having been read or referred to on the hearing.” None of the affidavits copied in this transcript are so, or otherwise, indorsed.
With regard to the minutes of the Court used on motions for new trial, the statute provides: “ To identify any * * * minutes of the Court read or referred to on the hearing, it shall be sufficient that the Judge designate them as having been read or referred to in his certificate, to be for that purpose by him made thereon.” Here, there is no such certificate of identification.
The statute further provides that “ the affidavits and counter-affidavits, or the statement thus used, (on motion for new trial) in connection with such pleadings, depositions, documentary evidence on file, testimony taken by a reporter, and minutes of the Court, as are read or referred to on the hearing, shall constitute without further statement the papers to be used on appeal from the order granting or refusing the new trial.” (Statutes of 1869, 226, Sec. 197.) The papers under discussion may have been so used, but as the statement does not appear in any manner authenticated, nor the other papers in any wise identified as by statute provided, they cannot be considered by this Court, and should be stricken out on
He says that this objection comes too late; that the defects being such as could have been readily cured by suggestion in the District Court, attention should have been called to them there ; and that by reason of neglect to do so, and the submission of the motion on its merits, and a stipulation as to the contents of the transcript which will be noticed hereafter, respondent should be deemed to have waived her objection.
The answer to all that portion of the argument, save as to the stipulation, is given upon a similar point by this Court, in the following language: “ It is argued by the respondent that as no objection to a consideration of the statement was made in the Court below, the appellant must be deemed to have waived it, and therefore it cannot be raised in this Court. But in answer to this it may be said, it does not appear from the record here whether any such objection was interposed in the Court below or not, nor indeed could it be brought to the attention of this Court upon an appeal of this kind. The section already referred to declares that “ the affidavits and counter-affidavits,” etc., (quoted as above).
“ Upon an appeal then, from such order, any objection or motion which might be made by the opposing party, respecting the record, could not be brought to this Court. This informality or defect in • the statement is undoubtedly a good ground for denying the motion. Had the Court discovered it before the order was made, it could, have placed its denial upon the sole ground that there was no such, statement before it as could legally be considered. The only ground then, upon which it can be claimed that this objection cannot be raised in this Court is, that it was waived by the appellant, in the Court below. There is, however, nothing in the record before us to warrant the conclusion that it was waived. For aught that appears here, the objection was made at the proper time. It. will not be claimed that it is incumbent on the appellant here, to> show that he did not waive the objection. It is always the duty of the person wishing to avoid the consequence of error in legal proceedings, upon the ground of waiver by the opposite party, to show such waiver, and not upon the person insisting on it to establish the •
“ Again, we know of no way by which an objection to the statement, or a motion to strike it out, could be brought to the attention of this Court, except by a separate statement on appeal; and it is very doubtful whether it could be brought here, even in that way. But admitting that it can, we think it quite clear such a course was never intended to be required by the Legislature. The purpose evidently was to allow all points which could be urged in the Court below, either for or against the motion for new trial, to be raised on the appeal from the order granting or refusing it, without any further statement; otherwise, why are the statements and papers used on such motion made the record upon which the order is to be reviewed in the appellate Court ? And why, as appears to be the case, is this Court confined to an investigation of the statement and papers used on such motion ? It is certain that no objection to the statement, or motion to strike it out, would come to this Court, under the provisions of section one hundred and ninety-seven of the Act already quoted, upon a mere appeal from the order. As a consequence, it either could not be brought here at all, or it must be presented in a separate statement, setting forth the fact that such objection or motion was made; a practice which seems to be utterly unauthorized, and evidently not contemplated by the Legislature. And if not authorized, then the appellant would be entirely deprived of any advantage from such objection or motion, even if it were made, because he would be entirely unable to present it to the Court.” * * * (McWilliams v. Hirshman, 5 Nev. 263.)
This case falls within the rule just quoted, unless its situation is changed by virtue of the stipulation referred to. Here it is: “The transcript on appeal shall contain, 1st. Complaint; 2d. Answer;' 3d. Findings; 4th. Judgment; 5th. Notice of Motion for New Trial; 6th. Stipulation for time to file Statement on Motion for New Trial; 7th. Statement on New Trial; 8th. Instructions of the Court; 9th. Order denying Motion for New Trial,
The motion of appellant must, therefore, be granted. Then the appeal stands from the final judgment, upon the judgment roll. It is not claimed, nor is it the fact, that any error appears therein. Therefore, the judgment of the District Court is affirmed.