Fishman v. Las Vegas Sun, Inc.

333 P.2d 988, 75 Nev. 13, 1959 Nev. LEXIS 98

• Court: Nevada Supreme Court
• Decided: January 8, 1959
• Docket: No. 4162
• Status: Published

Opinions

OPINION

Per Curiam:

Appellant has moved this court for an order granting leave to supplement the record on appeal by including therein the reporter’s transcript of testimony taken at the trial. The motion is based on Rule 75(h) NRCP and is supported by affidavit showing that upon the service and filing of notice of appeal, together with undertaking, appellant filed a designation of the record on appeal specifying, among other things, the reporter’s transcript of the testimony, which was however omitted by the clerk, which omission was not discovered by appellant until October 30,1958.

Under the circumstances we feel that the record should be supplemented by adding the transcript. Accordingly the appellant’s motion for leave to supplement the record by including the reporter’s transcript of testimony is granted.

Respondent has moved this court under Rule 37(d) NRCP for an order striking the appellant’s pleadings and dismissing the appeal “for appellant’s willful failure to file answers to written interrogatories.” In support of this, respondent notes, first, that appellant posted no supersedeas bond at any time after the judgment, and that thereupon respondent invoked the provisions of Rule 69 (a) on proceedings supplementary to and in aid of the judgment by requiring answers to interrogatories concerning the property of the appellant judgment debtor, and that appellant not only failed to answer the interrogatories but failed to answer or respond to a subsequent letter again requesting such answers.

Despite the fact that the appeal to this court has removed from the district court’s jurisdiction the determination of any matters involved in the appeal, it is nonetheless clear that the appeal to this court, without supersedeas, cannot of itself deprive the respondent judgment creditor of the right to execute upon its judgment or of its right to invoke the aid, in the district court, of the provisions of Rule 69 with reference to execution and proceedings supplementary to and in aid of the judgment and under the provisions of Rule 37 (a) and (b) with reference to discovery. For such purposes the district court, under the circumstances recited, retains jurisdiction to make such orders as may be necessary and proper under the rules. In our view such remedies are adequate to meet the present conditions.

See also 75 Nev. 13, 333 P.2d 988. June 18, 1959 341 P.2d 102

It is accordingly ordered that respondent’s motion is denied, but without prejudice to the right of respondent to pursue the remedies available to it before the trial court under Rules 69 and 37 (a) and (b) NRCP.

No. 4162