*1 v. PALMER v. SHIRK No. uary 14, 232 Pac. 1083. Febr 1925. APPEAL DISMISS

ON MOTION TO Piling Appeal Serving Appeal, and Notice 1. and Error — Docketing Supreme Filing Undertaking Court, Per- and Appeal. fects undertaking filing filing Serving appeal, and notice appeal docketing supreme perfects form and due jurisdiction. so as such court with to invest Appeal Appeal Failure to Pile 2. Dismissed for Error — Not Transcript Properly Prepared Record, but Certified Piling It. Time Will Be Given judg- appeal, record, contained filed on Where Laws, required properly roll, see. Rev. ment appeal transcript record, prepared will not be and certified prepare dismissed, given opportunity to will be but compliance transcript e. with and file such supreme rule p. n. 36. 4 C. J. sec. See 3 V. u. .T. Nye Court, District Appeal Judicial Fifth County; Dunn, Judge. Frank T. against E. E. Palmer. From

Action E. W. Shirk appeals. plaintiff, On motion defendant appeal. Appeal unless files dismiss dismissed specified time. of record within Forman, Forman & for Movant: complying with

Certificate to bill by reference statute is not cured is insufficient. Defect subject transcript. trial is not Certificate of Christensen, Capurro v. 46 Nev. amendment. appeal not taken in time should be Motion to dismiss Bill not settled and allowed as sustained. Kings- motion. law should be stricken on bury Copren, v. 47 Nev. 466. Johnson, at

This court held in Kirman 30 Nev. judgment, without a “an from an order or manifestly record, futile.” thereof in Hatton, Respondent: Cooke, French, & Stoddard given By stipulating that additional time be Vol. 48—15

briefs, right strike, movant has waived move to to dismiss that statement or tran- script served, though has not been even record on subject Henningsen would otherwise be motion. *2 R. R. Nev. 51. right

If court holds defective we have fur- record certified, properly etc., nish now record before court 1923, 163, any under Stats. at time final before udgment. j depend

Jurisdiction of this court cannot on whether clerk, parties, certify counsel, or to record. incorporated

All judgment matters that be in would roll, such, in as are included record. stipulate

Counsel cannot without reservation that appeal pending, time, is ask brief on file merits and say appeal. then there is no

OPINION Court, By the C. J.: Coleman, by respondent This is a case before us motion appeal. grounds assigned to dismiss the Two in support (1) motion, of transcript the no because of the appeal was filed within after was the perfected, all; (2) juris- or at because the court has no appeal, the diction of for the reason there has not copy roll, been a judgment filed this the court of parties, certified the nor there clerk has copy been annexed a appellant’s overruling trial, the order for new any there has been filed this court such order or at all. appears

.1. It from the files and records in case that a Sep notice of was served filed on 27, 1924, day tember that on the same an under taking This, in due form also filed. with docket ing here, perfected so to invest as this with of the case. designated

2. There is also on file what is “bill exceptions.” Within the covers of this document are purport copy complaint, answer, what to be a reply, opinion and decision of law, judgment, the notice findings and conclusions orders, stipulations, trial, new various a purports is what a bill There like. also by stipulation In the of counsel. a purports what to be record is so-called denying There a new trial. the motion for minute order Laws, roll, Rev. the usual certifi- attached to this document There not the said to the effect that cate of the clerk the court copies files, purported copies of the are true correct case in the record this While there not etc. record, prepared

properly of the certified dismissing justified in this would feel we opportunity prepare giving appellant an without compliance with rule pertaining to such matters. this court and the statutes Stats, (1923 spirit act of 1923 is the Such *3 Company 97), in Johns-Manville c. as construed 244, 387; County, 229 P. Mellan v. Lander 48 Nev. Messenger, 235, 228 P. 1095. days

It is have 15 in which ordered that prepare, serve, transcript and a in this to by of court as the court and the stat- the rules ute, failure to do that stand so dismissed. may so

It is further ordered withdraw may prepar- of files in much this case be used ing transcript, furnish copy any papers of him which heretofore served may preparing copy pursuant used service Respondent five order. to have after to above transcript to the service of such in which may proper. make such further motion as he deem Strike, and Remand On to Record Motions 1, June 1925. Pac. 678. Bill Court without Jurisdiction

1. Of —Trial Is Exceptions, Exceptions Additional Eurtiier after Settle or Bill Settling Expiration of Time for Bill. Trial is without or court settle additional expiration settling exceptions further bill of bill. after of time Exceptions, Bill 2. of Bill Held Precluded Of —Consideration Stipulation Judge Failure Certificate by’ Teial Certify Required to Matters Statute. purported A hill not entitled to hold consider- stipulation ation, where neither certificate of the required by 1923, certified to trial c. the matters Stats. 1, objection 97, sec. is not waived counsel for respondent by signing stipulation appel- which served to lull security. lant into sense of Appeal Party 3. and Error — Cannot Waive Essentials Rec- Necessary Supreme ord to Give Court Jurisdiction. waive, Party necessary give cannot of record essentials supreme jurisdiction, instance, exceptions. as for hill Appeal Exceptions — 4. and Error Bill of Will Be Stricken Conformably when Not Settled to Statute. Bill of will be stricken when not con- formably 97, 1923, sec. Appeal Papers Judgment and Error — which are Not Part of Roll, Exceptions, and Not Embraced in Bill of Be Will Stricken on Motion. Papers, such as a motion to strike the of defendant's objections plaintiff’s proposed findings fact, ruling thereou, errors, and the memorandum of all which are not which embraced in the bill of will be stricken on motion. 1907,p. 27; 1910,p. 48; See 4 J.C. sec. n. sec. n. sec. p. 319, 02; 1930, p. p. (il, sec. n. n. sec. u. n. 85. against Action E. Judg- W. Shirk E. E. Palmer. plaintiff, ment appealed. and defendant Plaintiff interposed a motion to dismiss the on the improper transcript that an of the record was filed. The appeal was ordered dismissed the event defendant specified failed to file the within a time. Thereafter defendant filed a which was attached a bill plaintiff’s *4 motion to strike such bill and certain documents and orders annexed to the and on defendant’s Supreme motion for an order of the Court to remand the record on to the trial and have the supreme record certified and returned to the files of granted, court. Plaintiff’s motion and defendant’s denied, striking and order entered from the files exceptions bill of and enumerated docu- judgment ments and orders annexed roll. 453 v. Forman, & for Movant: Forman exceptions certificate does not contain

Bill of part record. Essen- stipulation required it to make proceed- that contains substance tial element present. ings, rulings, points is involved practically and 1919 and acts Rickey v. Dodge, 45 Corcoran v. identical. Nev. Capurro Christensen, Douglas, Copren, 249; Kingsbury Nev. 466. judg- exceptions annexed be

Bill of should Laws, appealed Rev. ment roll or order from. rulings findings on proposed

Objections to fact are not objections and memorandum of errors Laws, part properly roll. Rev. made of bill

These orders should be documents and Laws, being placed in record. Rev. before designates shall consist. of what record French, Hatton, Respondent: Cooke, & Stoclclarcl By stipulating

correct, by parties, addi- and allowed merits in this briefs on tional time excep- estopped objecting movant right incomplete move tions and has waived ground that statement or tran- dismiss on strike and served, though script record would not been even had Henningsen subject v. R. R. be to motion. otherwise Nev. 51. OPINION Court, Coleman,

By C. J.: case, February 14, opinion in this we filed an directing made an order therein serve, prepare, days within which to have 15 compliance the rules of with statute, reserving court and the

right to make such further within five thereafter might proper. deemed On March be purports filed there was what Excep- “Bill indorsed a document

which is attached tions,” clerk filed with the trial court which *5 48 purports 3, 1924, have been which September and judge. March by the trial allowed and served, respondent the 5th and on for the counsel strike the bill of a motion to

filed this notice following the files the to strike judg- which are annexed to the orders documents and plaintiff’s roll, viz., objections to the ment defendant’s fact; findings ruling proposed the court’s defend- findings fact, objections proposed ant’s trial memorandum of error filed the a basis for a trial. latter for motion new This motion based ground upon the that said documents and are order not part of the made the an record on 7, 1925, appellant upon On March served counsel respondent and thereafter filed his notice of an order this court to remand to trial judge appeal, judge the record on and that said settle, allow, certify authorized and directed to said according truth, record to the facts and and that there- after said record be returned to the files this court.

The notice of subsequent motion recites that opinion of the and order hereinabove mentioned withdrew from the files of this court the filed, record promptly theretofore “proceeded supplement by obtaining adding same thereto additional documents as indicated the order of this court.” It request further stated that a was made counsel stipulate “that such bill correct, and record was contained proceedings substance of relating points involved,” request but that such denied; was that there- upon request was judge made of the trial certify that he that such correct, 'but that said declined to do so that he had lost An matter. affidavit is filed support of the statements made in said notice of motion.

1. We will first consider the made counsel respondent. In this connection must we bear in mind the terms of the order under which the v. In returned for amendment. that order we was ordered merely directed that have which prepare During September and file a etc. year of last the trial court to settle the bill *6 and, exceptions, may whatever be its faults or short- comings, the time within which the court could settle a exceptions long expired; bill of has since hence the trial court had and has no to settle an additional exceptions. or further bill of brought

2. We are now to a consideration of the by various motions made counsel respondent. for the willWe consider them in the they order in which made. The first is to strike the exceptions, bill of the reason that it provided was not by settled as law. Section 1923, p. 163, provides that a bill exceptions “shall be by settled and judge allowed the court, by or stipulation or parties, by of the attaching inserting thereto or therein a stipulation certificate or to the effect that such exceptions bill correct, con tains the substance of proceedings the relating to the point points or involved and has been settled and allowed, and when such exceptions bill of has been so settled and allowed it shall become a of the record special such action proceeding.” At the end of the exceptions bill of we following find the stipu lation, and by memorandum judge: the trial hereby stipulated, agreed

“It between the parties named, foregoing above the excep- bill of correct, tions is hereby same is settled and by parties. allowed the

“I, judge undersigned, the above-entitled hereby certify foregoing do correct, hereby is true and and the same is settled and allowed.” respondent by that neither

It is said counsel complies stipulation of the the memorandum statute, and there hence requirements of the with the pur- and for that reason can be no bill opposition In ported stricken. must be motion, counsel it said questioning estopped now be that counsel should sufficiency of the bill settlement (1) theories: two is based This contention urge good faith now in cannot Because counsel stipulation signing served contentions, since security into a sense lull the stipulations entered matter; (2) of certain because extending taken in this matter was into since say may might filed. We the time in which briefs argument, that, we were inclined at the time contention, first was merit in the the view there we of the matter consideration but more serious stipulation contrary conclusion. The have reached the prepared signed it as was counsel may, appellant, doubt, but be that as it counsel for greater lan- and effect than the could have no force it words, expresses. guage stipulation In other signified by nothing stipulated than is more counsel language stipulation and the order of used. The *7 by. Capurro v. the court are controlled the case Christensen, 249, 46 209 P. 1045. That was Nev. undertook to make an order wherein the court case certify settling exceptions, it failed to a bill of to statute, and we held that matters could not be considered. There is no difference in between that case the situa- substance presented, stipulation here and neither the nor the tion certificate of the entitles the exceptions' any to consideration. support

3. reliance had To the second contention is Henningsen Tonopah the case of & Goldfield 51, R. R. 32 not think that Nev. 104 P. 223. We do appellant case aids the in the least. The motion dis to copy inmiss was based that a case go, of a had not been served. It did not here, in to defect or a total failure to incor porate alleged necessary papers certain the record. thing applicable We the rule here stated 146, 500, 1057, Johnson, Kirman v. 30 Nev. 96 P. P. wherein it is said: by failing interpose proper

“While counsel may objection objections to the record waive all technical Shirk v. they

thereto, cannot waive the essentials of a record necessary give jurisdiction, such as this court overruling entire absence of an order a motion trial, Job, new if order were ever made. Corbett v. 201; Sampson, 282; Greeley Irwin v. Nev. Holland, Lewis, 14 Nev. Marx v. Spencer, 29

Hart v. Nev. 286.” exceptions, being pro 5. The bill of settled as by law, vided must be stricken. It is clear that objections strike the of the defendant’s findings plaintiff’s proposed fact, ruling thereon, errors, and the memorandum must be sus They tained. are not a

are not embraced in a bill appellant’s It is ordered the same hereby pur- denied. It is further ordered that ported objections bill the defendant’s plaintiff’s proposed findings fact, ruling thereon, and the memorandum of errors be stricken from the files in the case. Supplemental

On Motion Strike Brief October 1925. 239 Pac. 1000. Appeal Assigned, and Error —No Formal Error Need Be when Appeal Judgment Is Roll Alone. specify Under Stats. c. must errors reversal, on for relied and Stats. sec. makes no change except assigning substantial time and maimer of error, assigned, but formal error need be when on roll alone. Appeal — Supplemental Amplifying Error Brief Oral Argument Appeal Judgment Stricken, Roll Alone Not Assigned Original because of Point Not as Error Brief. Supplemental presented by brief, amplify *8 oral argument judgment alone, roll not will be stricken files, assigned point, makes because it not error original brief, complaint that facts does not sufficient state constitute cause of action. 1599, p. 143C, (new) ; p. 4 1402, 1330,

See G. J. see. n. 55 sec. n. 1403, (new). sec. n. 55 against Action E. W. Shirk Judg- E. E. Palmer. plaintiff, appeals. ment for and defendant On motion appellant’s supplemental to strike brief from files. Motion denied. Nev.

OPINION By Court, Coleman, C. J.: September At orally argued on 9th. case was This argument, counsel for conclusion brief, supplemental which was asked leave granted. after and service of In due time gave brief, notice of counsel for the this upon ground it files that to strike from the complaint point in the case does it makes the action to constitute cause of not state facts sufficient assigned alleged brief. —an error in the state, pertaining practice 1. The law of this long required appealed this has cases relied specification the errors judgment. Stats. the reversal of the as a 1919, p. v. Pacific Power Nev. sec. Gardner 1923, p. 164, 163 P. except change, in the time and make substantial assigning error. manner of repeatedly say held it has been it to Suffice assigned, when the error there need be no formal Walser, judgment Miller roll alone. 437; Page Walser, 181 P. 187 P. 509. on the roll before us case now

2. This assignment of error alone, have been no there need point urged. It now consider the the court to to enable argument, purpose of the oral presented on argument. amplify that brief was to denied. Motion