ON MOTIONS TO DISMISS AND STRIKE
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
OPINION
Motions to dismiss the appeal, to strike the transcript of the record on appeal, and to strike certain parts thereof, were filed by respondent. A counter motion was filed by appellant, and all were heard together. Our disposition of respondent's motions will necessarily dispose of the matter.
The case has been tried once before in the lower court, appealed to this court, and the judgment reversed. 52 Nev. 140,283 P. 403.
Thereafter the trial court on December 18, 1930, rendered judgment on the pleadings, and at that time made an order that entry of the judgment be suspended for a period of ten days within which time appellant would be permitted to propose such amendments, or to apply to the court for such action as it might be advised. Written notice thereof was served on appellant on December 19, 1930. Respondent filed its cost bill on December 23, 1930. Notice of motion to strike the same was served on December 24, 1930, and filed two days later. On December 22, 1930, appellant filed a motion to vacate the judgment. On December 30, 1930, respondent filed a motion for entry of judgment on the pleadings. This motion and appellant's motion to strike cost bill and vacate judgment were all heard together by the court on the last-mentioned date. Appellant's motions were both denied on that date and judgment entered that the action be dismissed, and that the option agreement mentioned in the action be terminated. Upon application of the respondent, the foregoing judgment was entered nunc pro tunc, as of December 19, 1930. From this judgment appellant filed and served a notice
of appeal on January 30, 1931, and filed an undertaking on appeal and for stay of proceeding on the following day. Thereafter appellant filed and served a notice of dismissal of the appeal on February 5, 1931. Later, and on the same day, appellant filed another notice of appeal from said judgment and another undertaking on appeal and for stay of proceedings. The appeal was thus finally perfected on February 5, 1931. The transcript on appeal was filed in this court on April 22, 1931.
1. Respondent contends that the transcript on appeal was filed too late, and in support of his motion to dismiss invokes rules 2 and 3 of the supreme court rules. This ground for dismissal of the appeal was argued elaborately both in the written briefs and in the oral argument by counsel for respondent, but it is not stated specifically in the motion to dismiss. The reference to it in the motion is as follows: "That said `Bill of Exceptions and record on appeal (Vol. 1)' was filed in the above entitled court without right or authority, and in violation of the statutes of Nevada in such cases made and provided, and in violation of the rules of the above entitled court." This statement is altogether too general to be taken as a ground of motion. See Peri v. Jeffers, 53 Nev. 49, 292 P. 1; Quinn v. Quinn, 53 Nev. 67-75, 292 P. 620; Gray et al. v. Coykendall, 53 Nev. 113, 293 P. 436, for rulings to that effect. In the cases cited we held such general statements fatally defective, and are of the opinion that the statement in the motion before us is so fatally defective. The courts of other states have taken the same view. Jackson v. Barrett,12 Idaho, 465, 86 P. 270-272; Loucks v. Edmondson, 18 Cal. 203; Cupit v. Park City Bank, 11 Utah, 427, 40 P. 707. The motion to dismiss the appeal must be denied on this ground. Other grounds for dismissing the appeal are specified, but, as these are also stated as grounds of a motion to strike the bill of exceptions and record on appeal, they will be discussed in that connections.
2. In support of the motion to strike the bill of exceptions, counsel for respondent argued that the motion must be granted, because, as they contend, a bill of
exceptions was unnecessary on an appeal from a judgment. This ground was not stated in the motion to strike, and therefore the motion must be denied for the reasons heretofore given in denying the motion to dismiss the appeal.
3, 4. Respondent also moved to strike the bill of exceptions upon the ground that the trial court lost jurisdiction to settle the same because it was not settled within five days after respondent filed its objections thereto. It is contended that the trial court so lost the power to settle the bill by reason of section 3 of act of 1915 concerning bills of exceptions, which reads in part: "Such objection shall be heard and determined by the court within five (5) days thereafter, and upon such hearing the court shall designate in what respect said bill is incorrect or untrue, or fails or omits to state the true facts, and shall order and direct that such bill be corrected in accordance with said determination, and engrossed so as to contain the true facts as herein required, and when so engrossed said bill shall be allowed and settled as in this act provided, and when so settled shall become and be a part of the record of said action. If the objections of the adverse party are disallowed, then such bill as originally filed shall be immediately settled and allowed as by this act required." Section 9386, Nev. Comp. Laws.
Respondent points out that it filed and served its notice of objection to allowance and settlement of the bill of exceptions on February 6, 1931, and that no action whatever was taken and no time requested or granted for an extension of time within which said proposed bill of exceptions should be settled until March 14, 1931, at which time the respondent objected to the authority or jurisdiction of the district court to settle or allow the same; that further hearing of appellant's application for a settlement of bill of exceptions was continued to March 28, 1931, at which time, in open court, respondent again objected to the right or jurisdiction of said district court to settle any bill of exceptions in said action.
We think that the word "shall" in the statute was used by the legislature in both a directory and mandatory sense — directory as to the specific time designated, and mandatory as to the act required to be done.
In the case of State ex rel. Gray v. District Court, 51 Nev. 412,278 P. 363, where the trial court refused to settle a bill of exceptions, mandamus was issued to compel such settlement. In the more recent case of Ratliff v. Sadlier, 53 Nev. 292,299 P. 674, 675, we held the following provision of a statute to be directory merely: "Upon a trial of a question of fact by the court its decision must be given * * * within thirty days after the cause is submitted for decision." The ruling in the latter case is decisive of the question presented here, as there is no difference in principle.
5, 6. Respondent also moved to strike the bill of exceptions because the same was not served upon it.
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ON MOTIONS TO DISMISS AND STRIKE
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
OPINION
Motions to dismiss the appeal, to strike the transcript of the record on appeal, and to strike certain parts thereof, were filed by respondent. A counter motion was filed by appellant, and all were heard together. Our disposition of respondent's motions will necessarily dispose of the matter.
The case has been tried once before in the lower court, appealed to this court, and the judgment reversed. 52 Nev. 140,283 P. 403.
Thereafter the trial court on December 18, 1930, rendered judgment on the pleadings, and at that time made an order that entry of the judgment be suspended for a period of ten days within which time appellant would be permitted to propose such amendments, or to apply to the court for such action as it might be advised. Written notice thereof was served on appellant on December 19, 1930. Respondent filed its cost bill on December 23, 1930. Notice of motion to strike the same was served on December 24, 1930, and filed two days later. On December 22, 1930, appellant filed a motion to vacate the judgment. On December 30, 1930, respondent filed a motion for entry of judgment on the pleadings. This motion and appellant's motion to strike cost bill and vacate judgment were all heard together by the court on the last-mentioned date. Appellant's motions were both denied on that date and judgment entered that the action be dismissed, and that the option agreement mentioned in the action be terminated. Upon application of the respondent, the foregoing judgment was entered nunc pro tunc, as of December 19, 1930. From this judgment appellant filed and served a notice
of appeal on January 30, 1931, and filed an undertaking on appeal and for stay of proceeding on the following day. Thereafter appellant filed and served a notice of dismissal of the appeal on February 5, 1931. Later, and on the same day, appellant filed another notice of appeal from said judgment and another undertaking on appeal and for stay of proceedings. The appeal was thus finally perfected on February 5, 1931. The transcript on appeal was filed in this court on April 22, 1931.
1. Respondent contends that the transcript on appeal was filed too late, and in support of his motion to dismiss invokes rules 2 and 3 of the supreme court rules. This ground for dismissal of the appeal was argued elaborately both in the written briefs and in the oral argument by counsel for respondent, but it is not stated specifically in the motion to dismiss. The reference to it in the motion is as follows: "That said `Bill of Exceptions and record on appeal (Vol. 1)' was filed in the above entitled court without right or authority, and in violation of the statutes of Nevada in such cases made and provided, and in violation of the rules of the above entitled court." This statement is altogether too general to be taken as a ground of motion. See Peri v. Jeffers, 53 Nev. 49, 292 P. 1; Quinn v. Quinn, 53 Nev. 67-75, 292 P. 620; Gray et al. v. Coykendall, 53 Nev. 113, 293 P. 436, for rulings to that effect. In the cases cited we held such general statements fatally defective, and are of the opinion that the statement in the motion before us is so fatally defective. The courts of other states have taken the same view. Jackson v. Barrett,12 Idaho, 465, 86 P. 270-272; Loucks v. Edmondson, 18 Cal. 203; Cupit v. Park City Bank, 11 Utah, 427, 40 P. 707. The motion to dismiss the appeal must be denied on this ground. Other grounds for dismissing the appeal are specified, but, as these are also stated as grounds of a motion to strike the bill of exceptions and record on appeal, they will be discussed in that connections.
2. In support of the motion to strike the bill of exceptions, counsel for respondent argued that the motion must be granted, because, as they contend, a bill of
exceptions was unnecessary on an appeal from a judgment. This ground was not stated in the motion to strike, and therefore the motion must be denied for the reasons heretofore given in denying the motion to dismiss the appeal.
3, 4. Respondent also moved to strike the bill of exceptions upon the ground that the trial court lost jurisdiction to settle the same because it was not settled within five days after respondent filed its objections thereto. It is contended that the trial court so lost the power to settle the bill by reason of section 3 of act of 1915 concerning bills of exceptions, which reads in part: "Such objection shall be heard and determined by the court within five (5) days thereafter, and upon such hearing the court shall designate in what respect said bill is incorrect or untrue, or fails or omits to state the true facts, and shall order and direct that such bill be corrected in accordance with said determination, and engrossed so as to contain the true facts as herein required, and when so engrossed said bill shall be allowed and settled as in this act provided, and when so settled shall become and be a part of the record of said action. If the objections of the adverse party are disallowed, then such bill as originally filed shall be immediately settled and allowed as by this act required." Section 9386, Nev. Comp. Laws.
Respondent points out that it filed and served its notice of objection to allowance and settlement of the bill of exceptions on February 6, 1931, and that no action whatever was taken and no time requested or granted for an extension of time within which said proposed bill of exceptions should be settled until March 14, 1931, at which time the respondent objected to the authority or jurisdiction of the district court to settle or allow the same; that further hearing of appellant's application for a settlement of bill of exceptions was continued to March 28, 1931, at which time, in open court, respondent again objected to the right or jurisdiction of said district court to settle any bill of exceptions in said action.
We think that the word "shall" in the statute was used by the legislature in both a directory and mandatory sense — directory as to the specific time designated, and mandatory as to the act required to be done.
In the case of State ex rel. Gray v. District Court, 51 Nev. 412,278 P. 363, where the trial court refused to settle a bill of exceptions, mandamus was issued to compel such settlement. In the more recent case of Ratliff v. Sadlier, 53 Nev. 292,299 P. 674, 675, we held the following provision of a statute to be directory merely: "Upon a trial of a question of fact by the court its decision must be given * * * within thirty days after the cause is submitted for decision." The ruling in the latter case is decisive of the question presented here, as there is no difference in principle.
5, 6. Respondent also moved to strike the bill of exceptions because the same was not served upon it. The following indorsement is on the bill of exceptions appearing in the record: "Service of the within bill of exceptions and record on appeal admitted this 2nd day of February, 1931. Hawkins, Mayotte
Hawkins, attorneys for Defendant." It is true that after the 2d day of February, 1931, and before the bill of exceptions was settled and allowed by the district judge on April 13, 1931, it was amended by the addition of certain papers and the bill as amended and settled was not served on respondent. The additions consist of: respondent's notice of motion for judgment on the pleadings; and order shortening time for hearing of same and acknowledgment of service of such notice by attorneys for appellant; copies of affidavits of service of notice of decision, of service of decision and order, of service of notice to have judgment dismissing the action and terminating option agreement, for costs, and order shortening time for notice and hearing. It will be seen that respondent's counsel were the authors of these documents added to the bill of exceptions, and therefore had perfect knowledge of the same. Moreover, it appears from the certificate of settlement and allowance by
the judge that respondent demanded the incorporation of said affidavits of service of notice of decision and order. Their incorporation was consented to by counsel for appellant. Under such circumstances it is difficult to see how respondent was prejudiced by the failure to serve the bill of exceptions as settled. The judge settling the bill of exceptions made no order for its service as settled and was under no duty to do so. The statute does not require it.
7. A motion was made to strike the bill of exceptions and record on appeal (which, together with the last notice of appeal and undertaking on appeal, constitute the transcript on appeal in this case), for failure to serve it before filing in this court. This motion will be denied for the reasons we have just given for not striking the bill of exceptions. It is true that, by subdivision 3 of rule 13 of the rules of the supreme court, service of a copy of the transcript of the record on appeal is required to be made upon the opposite party. But the most we would do if this rule were not substantially observed would be to order compliance therewith before applying any other remedy. But where, as in this case, there is but a technical deviation from the rule, such as not serving respondent with copies of the papers heretofore mentioned, of which respondent had full knowledge, no useful purpose would be served in ordering such service.
8, 9. The last motion is also based upon the following statement, to wit: "That said bill of exceptions and record on appeal was filed in the above entitled court without right or authority, and in violation of the statutes of Nevada in such cases made and provided, and in violation of the rules of the above entitled court." The motion will be denied in this respect because the statement is too general to be considered as a ground of motion. The last motion is also based upon the ground "that no judgment roll certified by any one authorized by the statute or court rules to certify judgment roll was ever at any time served upon respondent or the attorneys for respondent herein."
The judgment roll is not required to be served upon a respondent on the taking of an appeal.
The motion to strike a portion of the certified copies of the judgment roll is directed against what is named in the record as a copy of the original first judgment roll, and against all of the papers contained therein. The clerk certified to a copy of the judgment roll in the case as originally tried in the lower court, and to a copy of the judgment roll as judgment was rendered and entered on the pleadings. After the reversal of the judgment in this court, respondent, who was appellant in the first instance, filed an amended and supplemental answer to the second amended complaint as finally amended, to which latter pleading a reply was filed, and, as heretofore stated, judgment was thereafter rendered and entered on the pleadings. It will be seen that there may be papers in the first certified judgment roll that are not essential to a proper consideration of the questions that may arise on this appeal, but as counsel for respondent have not much insisted on this latter motion, either in their briefs or oral argument, and as no useful purpose will be served thereby, we will not attempt to determine in advance which papers, if any, are not essential, and strike them.
It is ordered that all motions made by respondent be, and they are hereby, denied on all the grounds stated.
ON THE MERITS
February 5, 1932.
7 P.2d 593.