City of Fallon v. Churchill County Bank Mortgage Corp. , 57 Nev. 1 ( 1935 )

OPINION This matter is again before us on motion of respondent to strike the bill of exceptions. In an opinion heretofore filed (57 Nev. 12, 56 P.2d 1211), we ordered that the bill of exceptions be remanded to the trial court for amendment and return to the clerk of this court. Pursuant to that order, it was endorsed as filed by the clerk of the trial court as of April 15, 1935. The motion now under consideration is based upon the ground that the final judgment appealed from was entered on March 11, 1935, whereas the bill of exceptions was not filed until after the time allowed therefor had expired.

Section 9398 N.C.L. fixes the time within which a bill of exceptions may be filed where the appeal is from a final judgment, as in this case, at "within twenty (20) days." The final judgment having been rendered on March 11, 1935, and the bill of exceptions not having been filed until April 15, 1935, it is clear that it was not filed within twenty days after the entry of the final judgment.

Section 9392 N.C.L. expressly provides that if a party shall omit or fail to serve and file his bill of exceptions within the time limited by law, he shall be deemed to have waived his right thereto. We so held in Nellis v. Johnson et al., 57 Nev. 17,53 P.2d 1192.

Counsel for appellant does not contend that a failure to file a bill of exceptions within the time fixed by law, if there be no order of court or stipulation of the parties extending the time, does not constitute a waiver, but contends there was a stipulation extending the time, and has offered his affidavit which he claims shows that there was a stipulation between himself and G.J. Kenny, Esq., the attorney for the respondent in the court below, and one of its attorneys here, waiving the statutory requirement. Though counsel for appellant relies on three separate affidavits in support of his contention, we will refer to the one of November 12, 1935, only, since the other two restate the same matter. The affidavit mentioned states that Mr. Kenny said to him: "* * * You prepare your bill of exceptions and your brief and give me a copy of each; that I will then prepare my answering brief, and give you a copy of my brief; that you in turn will then prepare and give me a copy of your reply brief; that then we will send the bill of exceptions, and the briefs all together to the supreme court and let the supreme court pass on the legal questions presented in these briefs without oral argument."

In opposition to the above affidavit respondent offered in evidence the counter affidavit of G.J. Kenny, Esq., which states, in substance, that as attorney for the respondent in the lower court, he discussed with the attorney for appellant the possibility of presenting the case to the supreme court upon a statement of facts; that he told attorney for appellant, before judgment was rendered, that in case of an appeal H.R. Cooke, Esq., would be associated with him in presenting the matter to the supreme court, and that affiant would be guided, in all matters concerning the appeal, by Mr. Cooke; that following the rendition of the judgment in the lower court, affiant discussed with Mr. Cooke the matter of presenting the case on appeal on a statement of facts, and was informed that he, said Cooke, was not in favor of such a course, and thereupon affiant promptly notified the attorney for appellant accordingly, in the latter part of March 1935; that he then and there stated to counsel for appellant that the wish of Mr. Cooke was binding upon him in the matter.

From the affidavit of counsel for appellant, it appears that Mr. Kenny suggested that he "prepare your bill of exceptions." If we give this language the usual interpretation, it could only mean that Mr. Kenny suggested the embodying in the record of a bill of exceptions, as contemplated by statute. This was not done. If we accept Mr. Kenny's version, there was talk about submitting the matter to this court upon an agreed statement of facts, but that the attorney for appellant was simultaneously informed that Mr. Cooke would be associated with Mr. Kenny, in case of an appeal, and that Mr. Cooke's wishes in the matter would control.

1, 2. There is a clear conflict between the affidavits. Mr. Kenny states that he informed counsel for appellant that he could not bind the respondent in the matter, but that Mr. Cooke's word would control, and that Mr. Cooke would not consent to any stipulation. The burden is upon appellant to show a waiver. We do not think it is shown, hence the motion to strike the bill of exceptions should be granted. It is so ordered.

3. There being no judgment roll in the case on file, there remains nothing which the court can consider. In this situation the judgment appealed from should be affirmed.

It is so ordered.