Shirk v. Palmer , 48 Nev. 449 ( 1925 )

ON MOTION TO DISMISS APPEAL Certificate to bill of exceptions, not complying with statute is insufficient. Defect is not cured by reference to transcript. Certificate of trial judge is not subject to amendment. Capurro v. Christensen, 46 Nev. 249.

Motion to dismiss appeal not taken in time should be sustained. Bill of exceptions not settled and allowed as required by law should be stricken on motion. Kingsbury v. Copren, 47 Nev. 466.

This court held in Kirman v. Johnson, 30 Nev. at 153, that "an appeal from an order or judgment, without a copy thereof in the record, is manifestly futile." By stipulating that additional time be given for filing briefs, movant has waived right to move to strike, and to dismiss appeal on ground that statement or transcript has not been served, even though record on appeal would otherwise be subject to motion. Henningsen v. R.R. Co., 32 Nev. 51.

If court holds record defective we have right to furnish record now before court properly certified, etc., under Stats. 1923, 163, at any time before final judgment.

Jurisdiction of this court cannot depend on whether clerk, parties, counsel, or judge certify to record.

All matters that would be incorporated in judgment roll, as such, are included in record.

Counsel cannot stipulate without reservation that appeal is pending, ask for time, file brief on merits and then say there is no appeal.

OPINION This case is before us upon a motion by respondent to dismiss the appeal. Two grounds are assigned in support of the motion, (1) because no transcript of the record was filed within 30 days after the appeal was perfected, or at all; (2) because the court has no jurisdiction of the appeal, for the reason that there has not been filed in this court a copy of the judgment roll, certified by the clerk or by the parties, nor has there been annexed to the original bill of exceptions a copy of the order overruling appellant's motion for new trial, nor has there been filed in this court any such order or at all.

1. It appears from the files and records in the case that a notice of appeal was served and filed on September 27, 1924, and that on the same day an undertaking in due form was also filed. This, with the docketing here, perfected the appeal so as to invest this court with jurisdiction of the case.

2. There is also on file what is designated "bill of exceptions." Within the covers of this document are what purport to be a copy of the complaint, the answer, the reply, the opinion and decision of the court, the findings and conclusions of law, the judgment, the notice of motion for a new trial, various orders, stipulations, and the like. There is also what purports to be a bill of exceptions, settled by stipulation of counsel. In the so-called record is what purports to be a copy of a minute order denying the motion for a new trial. There is no judgment roll, as required by Rev. Laws, 5273. There is not attached to this document the usual certificate of the clerk of the court to the effect that the said purported copies are true and correct copies of the files, etc. While there is not in the record in this case a properly prepared and certified transcript of the record, we would not feel justified in dismissing this appeal without giving the appellant an opportunity to prepare and file such a transcript, in compliance with rule 4 of this court and the statutes pertaining to such matters. Such is the spirit of the act of 1923 (1923 Stats. p. 163, c. 97), as construed in Johns-Manville Company v. Lander County, 48 Nev. 244, 229 P. 387; Mellan v. Messenger, 48 Nev. 235,228 P. 1095.

It is ordered that the appellant have 15 days in which to prepare, serve, and file a transcript on appeal in this court as required by the rules of the court and the statute, and for failure so to do that the appeal stand dismissed.

It is further ordered that appellant may withdraw so much of the files in this case as may be used in preparing such transcript, and that respondent furnish the copy of any papers heretofore served upon him which may be used in preparing a copy for service pursuant to the above order. Respondent to have five days after the service and filing of such transcript in which to make such further motion as he may deem proper.

ON MOTIONS TO STRIKE, AND REMAND RECORD June 1, 1925. 236 P. 678.