Giannotti v. De Bock

221 P. 520, 47 Nev. 332, 1924 Nev. LEXIS 37

• Court: Nevada Supreme Court
• Decided: January 5, 1924
• Docket: No. 2608
• Status: Published

Opinion

By the Court,

Coleman, J.:

This is an appeal from the' judgment. No motion for a new trial was made in the action.

Counsel for respondent contends that we cannot consider the-evidence in the case, since no motion for a new trial was made. In this contention he is clearly right, as we have repeatedly held. Section 386 of our civil code (Rev. Laws, 5328) reads:

“Where the appeal is based upon the ground that the evidence is insufficient to justify the verdict or decision of the court, or to support the findings, * * * a motion for a new trial must be made and determined before the appeal is taken. * * * ”

It is appellant’s contention that “there is no legal or competent evidence in the record to support the findings, and judgment.” In other words, that the undisputed evidence does not in the law justify the findings and judgment. Upon this it is said that no motion for a new trial was necessary.

As we understand the theory and reason for requiring that a motion for a new trial be made and passed upon before this court can consider the evidence, it is that the trial court may first have an opportunity to rectify an error, if one was made, without subjecting the parties to the expense and annoyance of an appeal. '2 R. C. L.. p. 98, sec. 72.

Speaking of statutes such as ours, it is said in 3 C. J. 963:

“Where a motion for a new trial is required, it cannot be waived or dispensed with by stipulation of the parties.”

The provision of the statute quoted is clear and unambiguous, and has, in the past, been construed according to its clear import. It is not our prerogative or desire to nullify statutes by strained construction.

We held in Gill v. Goldfield Consolidated Mining Co., 43 Nev. 1, 176 Pac. 784, 184 Pac. 309, that a motion for a new trial must be made when a consideration of the evidence is desired by the court.

No error appearing upon the judgment roll proper, it is ordered that the judgment appealed from be affirmed.