State ex rel. Equitable Gold Mining Co. v. Murphy

29 Nev. 247

Opinion

By the Court,

Talbot, J.

(after stating the facts):

The questions presented are whether, under our practice act, in an equity case tried before the court with a jury, a party is required to file his notice and statement on motion for new trial within five days after the rendition of the verdict as in ordinary jury cases, or has he for this purpose until ten days after he receives written notice of the decision of the judge, as in cases tried before the court without a jury, and, if so, was this time shortened by reason of the fact that, upon the rendition of the verdict and findings by the jury, and on the application of the defendant’s attorney, who was unaware that the court had approved them, or had directed the clerk to enter judgment, the court made an order giving thirty days after the receipt of the reporter’s transcript of the testimony in which to serve and file statement on motion for new trial? Also, is a statement on appeal from an order denying a motion to strike out or modify a judgment previously entered by the clerk, when such statement is filed within twenty days after the making of such order, allowable and subject to settlement .although improperly containing the evidence and proceedings of the trial not germane to the exceptions and specifications of error taken against such order?

.Section 197 of the practice act (Comp. Laws, 3292) provides that the party intending to move for a new trial shall give notice of the same, when the action has been tried by a jury, within five days after the rendition of the verdict, and when tried by the court, within ten days after receiving written notice of the decision of the judge, and that he shall prepare and file his statement within five days after giving such notice. In construing this language we must not forget the principles which govern and distinguish between law and equitable actions. It seems from the opinion of the respondent that he considered the case as one tried by a jury, and that defendant had only five days provided by this statute, and thirty days after the receipt of the transcript from the reporter, allowed by the order of the court, in which to file the statement on motion for new trial. If this position were correct, the time had expired, and. the court had lost juris diction before this statement was filed as be held. But, the case being an equitable one, the trial was only nominally before a jury, and, for all practical and effective purposes, was before the court.

The, verdict of the jury was only advisory and without force until adopted by the judge. He was at liberty, as in other equity cases, to approve it, or to make findings or enter judgment contrary to what the jury had found, if he deemed the same more appropriate. The case was one for the court, and, notwithstanding the verdict, tbere was nothing against the defendant demanding any notice or statement on motion for new trial, and the finding of any would have been premature, until the judge, acting as a chancellor, had rendered his decision. If it be conceded that he did this to the extent of the verdict and special issues by adopting them and ordinary judgment in accordance therewith at the time of their rendition, the case is not different in its nature and the practice ought not be different than it would be if he had not adopted them for months after, or had rejected them and made different findings. Neither the judge nor the jury have yet made any findings or order directing the perpetual injunction placed in the judgment by the clerk. We conclude that, in this case, and in all purely equitable.ones, the'statute allows the defeated party until ten days after receipt of written notice of the decision of the judge in which to give notice of his intention to move for a new trial, and five days after the giving of this notice in which to file and serve his statement on motion for new trial, as heretofore held by this court. (Thompson v. Crane, 25 Nev. 119, 58 Pac. 53; Duffy v. Moran, 12 Nev. 98; Hayne on New Trial and Appeal, p. 75.)

As said by Chief Justice Murphy in South Mid M. Co. v. Tinney, 22 Nev. 71, 35 Pac. 108: "It frequently becomes the duty of the court, in'giving effect to statutes, to restrain, enlarge, or qualify the ordinary and literal meaning of the words used.”

Nor do we think that the time to which defendant was entitled by the statute was curtailed or waived by the fact that the attorney, at the time of the rendition of the verdict and without knowing that it had been approved by the court, applied for and obtained an order allowing until thirty days after receipt of the transcript of the evidence from the reporter in which to file a statement on motion for new trial.

The same section provides that the court or judge may enlarge, but not that he may shorten, the time. When.counsel obtained the order, and until after the period allowed by it for filing the statement had expired, he not only had not been served with written notice of the rendition of any decision by the judge, but was unaware that the court had approved the verdict, or ordered judgment entered by the clerk, or rendered any decision which is required or is of force in an equity ease, and against which a statement on motion for new trial could be properly directed. Evidently the purpose of obtaining the order of the court was to extend and not to curtail the time allowed by statute. To say otherwise would be equivalent to holding that the defendant's time for filing the statement expired before it was aware that the time for filing one had arrived. We see no more element of waiver in applying for the order under the circumstances than there would be if the case had been tried without a jury and taken under advisement by the court and upon its submission the same order had been applied for and obtained. If the securing of such an order were held to be a waiver of further time, and the court had taken the case under consideration and not rendered a decision until more than thirty days after defendant received the transcript from the reporter, the time for filing the statement on motion for new trial would have expired before it arrived. Not knowing when notice of the rendition of the decision would be served or whether this would be more than ten days before the transcript of the evidence would be obtained from the reporter, the securing of an order allowing thirty days after the receipt of the transcript ought not to be deemed a waiver when defendant was unaware that the judge had adopted the verdict or rendered his decision. If defendant's attorney, who was present in court, had known at the time that the court adopted the verdict- and ordered judgment, nevertheless it would have been necessary to have served him with written notice of the decision of the court as the statute requires,“unless asking for the order with such knowledge would be a waiver, and regarding this we express no opinion, for it is not denied that he was unaware that the court approved the verdict or ordered judgment. In Keane v. Murphy, 19 Nev. 96, 6 Pac. 810, the attorney for the losing party was present in court, heard the decision rendered, and requested one of the plaintiff’s counsel to "add no more costs in entering judgment than he could help,” but it was held that he did not thereby waive service of written notice of the decision. Nevertheless this notice may be waived by filing a notice of intention or statement on motion for new trial and in other ways. But decisions were cited in this case to sustain the statement that "the legal presumption of a waiver of any right by a litigant will not be drawn, except in a clear case, and especially not, when to allow such presumption would deprive a party of his day in court.”

The statement on appeal filed September 8, 1906, and within twenty days after the denial of the motions to strike out and amend the judgment, but nearly one year after its entry by the clerk, improperly contains the depositions and testimony introduced on the trial and which belong to a statement on motion for new trial, and, as regards any exceptions made on the trial, the statement on appeal was taken too late. . But this is not so in regard to that part of it pertaining to the orders of the court denying the motions to strike out and to modify the judgment entered by the clerk, and to the record and matters relating to these orders and motions, such as the verdict, special findings, orders of of the court, entry of the judgment by the clerk, and minutes relating to these. They could be properly presented by statement on appeal instead of by bill of exceptions, and the time for such presentation had not expired. The incumbering of this statement with the evidence given on the trial, of which it was mostly composed and which ought to have been confined to the statement on motion for new trial, may have caused the respondent to regard it as being intended for the latter statement. The insertion of such useless matter is condemned. It serves no good purpose, but makes unnecessary expense for litigants and renders the real points involved more obscure and difficult to comprehend. This is not the first time we have taken occasion to express our disapproval of the practice, too common, of loading statements with a mass of material which does not pertain to the exceptions taken or the questions controlling the case on appeal, and which only tend to befog the real issues and burden this court, if not the trial judge, with the labor of garnering a little wheat from much chaff. The depositions and evidence introduced on the trial and other irrelevant matters should be eliminated, and those properly pertaining to the orders denying the motions to strike out and modify the judgment should be allowed on the settlement of the statement on appeal.

Section 4 of the act to regulate appeals, approved March 11, 1865, found at section 3860 of the Compiled Laws, directs that "during the progress of a cause a party may take his bill of exceptions to the admission or exclusion of testimony or to the rulings of the'judge on points of law, and it shall not be necessary to embody in such bill anything more than sufficient facts to show the point and pertinency of the exceptions taken.” The practice act was passed four years later, and the filing and settlement of the statement on appeal from the orders denying the motions to strike out and to amend the judgment as entered by the clerk are authorized by section.330 (Comp. Laws, 3425), which provides for an appeal "from any special order made after the final judgment,” and by section 332 (Comp. Laws, 3427), which provides: "When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall, within twenty days after the entry of such judgment or order, prepare such statement, which shall state specifically the particular errors or grounds upon which he intends to rely on the appealj and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified, and no more, and shall file the same with, the clerk, and serve a copy thereof upon the adverse party. The respondent may, within five days thereafter, prepare and file amendments to the statement, and shall serve a copy thereof on the appellant; the statement and amendments shall be presented to the judge or referee who tried or heard the ease, upon notice of two days to the respondent, and a true statement shall thereupon be settled by such judge or referee.”

It is ordered that a writ of mandate issue directing the respondent to settle the proposed statement filed on August 31, 1906, and indorsed "Statement on Motion for New Trial and Appeal,” and so much of the proposed statement filed September 8, 1906, and indorsed "Statement on Appeal,” as pertains to the orders overruling the motions to strike out and modify the judgment.

Norcross, J.: I concur. Fitzgerald, C. J., absent.