McGill v. Lewis

111 P.2d 537, 61 Nev. 28, 1941 Nev. LEXIS 2

• Court: Nevada Supreme Court
• Decided: March 21, 1941
• Docket: 3329
• Status: Published

Opinions

OPINION

By the Court,

Orr, J.:

Respondent has moved this court for an order striking from its records and files:

(A) The transcript of proceedings certified by the official reporter, filed in the trial court on November 26, 1940, and filed herein on December 24, 1940;

(B) The whole of the file of papers without formal title, referred to as the transcript of record on appeal;

(C) The following entitled papers embodied in the so-called transcript of record on appeal, at the pages thereof hereinbelow indicated:

Title of paper ■ Pages of reeord

1. Stipulations........................................................... 8, 9

2. Notice of Motion to Strike................................ 46-49

3. Application for Order to Show Cause, etc..... 50-55

4. Order to Show Cause and Temporary Order.... 56-58

5. Undertaking on Issuance of Temporary Restraining Order ...................................... 59-60

Title of paper ■ Pages of record

6. Assignment of Cause.................. 66

7. Plaintiff’s Exhibit “A” (on trial).................... 67-68

8. Defendant’s Exhibit 2 (on trial)...................... 69

9. Defendant’s Exhibit 3 (on trial)...................... 70-71

10. Defendant’s Exhibit 4 (on trial)............,......... 72-75

11. Decision................... 76-83

12. Memorandum of Defendant’s Costs and Disbursements.................................................... 84

13. Notice of Decision.............................................. 85

14. Notice of Intention to Move for a New Trial.. 95

15. Affidavit in Support of Motion for a New Trial............................................................... 96-98

16. Plaintiff’s Exhibit “A” (on Motion for New Trial) ....i...'...................................................... 99

17. Notice of Filing Counter-Affidavit in Opposition to Plaintiff’s Motion for New Trial.. 100

18. Counter-Affidavit in Opposition to Plaintiff’s Motion for New Trial............................ 101-104

19. Stipulations..................................... — ............... 105-106

20. So-called Memorandum of Exceptions........ 107-110

21. Notice of Making and Entry in Minutes of Court of Order Refusing New Trial........ Ill

22. Minute Entry of Order Denying Motion for New Trial .................................................... 122

The motion to strike the transcript of proceedings certified by the court reporter is based upon the ground that the said transcript, which was intended as a bill of exceptions, was not filed within twenty days after service of written notice of the decision upon motion for new trial, said time not having been enlarged by stipulation or order of the court.

The judgment in the above-entitled action was entered in the lower court on the 5th day of June 1940; a motion for new trial was thereafter made, and an order entered denying the same on September 30, 1940. The notice of the denial of said motion for new trial was served on appellant on October 19, 1940. The transcript of proceedings intended as a bill of exceptions was served upon respondent on November 26, 1940, more than twenty days after the entry of judgment and more than twenty days after the notice of decision on motion for new trial. Appellants failed to comply with the requirements of section 31 of the new trials and appeals act, Statutes of Nevada 1937, c. 32, p. 63. Section 36 of said act provides: “If a party shall omit or fail to serve and file his bill of exceptions within the time limited he shall be deemed to have waived his right thereto.” In a number of decisions this court has held this requirement to be mandatory, and that unless a bill of exceptions is served and filed within twenty days, providing the time has not been extended by stipulation or order of the court, the bill of '• exceptions will be stricken upon proper motion. Markwell v. Gray, 50 Nev. 427, 265 P. 705; Joudas v. Squire, 50 Nev. 42, 249 P. 1068; Water Co. v. Tonopah Belmont Dev. Co., 49 Nev. 172, 241 P. 1079; McGuire v. Ehrlich, 49 Nev. 319, 245 P. 703; Bowers v. Charleston Hill National Mines, Inc., 50 Nev. 99, 251 P. 721, 256 P. 1058.

Appellants assert they proceeded under paragraph 2 of section 10 of the new trials and appeals act, found at page 56, Statutes of Nevada 1937, and that they perfected their appeal within the sixty days allowed by said section. This is quite true, but the section has no application to the questions raised by the motion. The appeal was perfected within the time, but not having filed and served a bill of exceptions within the twenty days, appellants cannot rely- on it, being deemed to have waived their right thereto. Said bill of exceptions, being filed out of time, has no place in the record, and it is ordered stricken.

Without a bill of exceptions, the appeal is left upon the judgment roll alone.

Respondent has moved to strike a number of papers appearing in the judgment roll which are not a proper part thereof. Section 8829 N. C. L. 1929 provides what shall constitute the judgment roll in civil cases, and an inspection of said section discloses that the papers referred to by respondent in his motion to strike, under paragraph (C), and enumerated on pages 1 and'2 hereof, as pages 8 to 95 of the record, have no place in the judgment roll, and they are ordered stricken therefrom. Those papers enumerated on page 2 of this opinion and appearing on pages 95 to 122 of the record are annexed to the judgment roll, but have no proper place there and are also ordered stricken.

Under subdivision (B) of the motion the most this court would do would be to order a compliance with rule XIII, subdivision 3. Lovelock Lands, Inc., v. Lovelock Land & Development Co., 54 Nev. 1, at page 8, 2 P(2d) 126, 7 P.(2d) 593, 12 P.(2d) 339. Inasmuch as the record has been reduced to the judgment roll alone, we think no useful purpose would be served by such an order.

The discretion we have exercised here demonstrates the difference in the mandatory character of the action directed by section 36 of the 1937 statute, supra, relative to failure to file a bill of exceptions within the time specified, and the latitude allowed the court by rule XIII, subdivision 3. In the one the court can follow its announced policy of permitting an appeal to be heard on the merits wherever possible; in the other the quoted statute has prescribed the penalty for failure to .comply with outlined procedure.

Appellants call attention to the stipulation entered into by respective counsel permitting appellants fifteen days after decision on their motion to file and serve .their opening brief, and contends that by so stipulating respondent waived all objections to defects in the record. The stipulation is for the sole benefit of appellants, a different situation than appears in the case of Barbash v. Pitt, 48 Nev. 108, at page 113, 227 P. 1018, 233 P. 844, 236 P. 1101.

Respondent has also filed a motion to dismiss the appeal on the ground that without a bill of exceptions the appeal is upon the judgment roll alone, which limits the consideration of errors to those appearing on the face thereof, and that no error there appears. This question should be left for determination upon the hearing of the appeal proper. The motion to dismiss is denied,

August 30, 1941. 116 P.(2d) 581.