Drespel v. Drespel , 56 Nev. 368 ( 1935 )

ON REHEARING February 4, 1936. OPINION We granted a rehearing in this case to consider the contention of respondent to the effect that there is no record before us upon which we could properly determine whether or not the lower court erred in refusing to make allowances to appellant for an attorney's fee and to cover other expenses incident to the making of her motion for a new trial.

The record shows that the notice of appeal was served and filed on July 31, 1933, and that thereafter, on May 25, 1934, the bill of exceptions was settled by the trial judge.

The certificate settling the bill of exceptions, omitting formal caption, is as follows:

"The foregoing Bill of Exceptions hereby is certified as correct, the same being copies of the pleadings pertinent to the Appeal and a transcript of only those portions of the testimony pertinent to the Appeal upon the issue of the residence ofplaintiff and certified by the Court Reporter to be a full, true and correct transcript of such portions, and containing all of the material evidence upon that issue and all of the pleadings, records and papers in the proceedings and in the trial and in the hearing of the Motion for a new trial; and containing all the material rules, decisions, orders, judgments or actions of the Court upon that issue, and that said Bill of Exceptions was served and filed within the time provided by law, or within the time allowed by stipulations extending time; and said Bill of Exceptions has been and hereby is settled and allowed and as such it shall be and become part of the Record on Appeal in the suit entitled above.

"Dated: May 25th, 193 4"

The certificate as originally presented to the trial judge for his signature was evidently drafted on a typewriter at the instance of counsel for appellant, since the words in the certificate which are underscored were interlined in the handwriting of the trial judge.

It is the contention of counsel for respondent that in view of the fact that appellant did not appeal from the order refusing to make the allowances mentioned, and the further fact that the trial judge was extremely careful to limit the certificate settling the bill of exceptions, as to the testimony, to the question of residence only, there is no record before us upon which we can review the order of the trial court relative to allowances.

1. As to the contention that appellant did not appeal from the order refusing to make the allowances, we may say that it is not contemplated by our civil practice act that an appeal may be taken from every order made, but it does contemplate that upon an appeal from a judgment this court may review certain intermediate orders. (Sec. 8887 N.C.L., Stats. 1935, chap. 90, sec. 12.) The motion of appellant for allowances, and the affidavits mentioned therein, in support of such motion, and some affidavits resisting the same, are in the files. Whether the trial judge was of the opinion that, in view of the fact that the appellant failed to state in her notice of appeal that she appealed from the order mentioned, this court would be precluded from considering the ruling on that point, or whether he was of the opinion that the tendered bill of exceptions did not contain all the affidavits and testimony on the point, we cannot say.

2. However, we think the contention that there is nothing in the bill of exceptions, as certified to by the trial judge, to enable us to determine whether or not the order which was made was erroneous is well founded.

In our former opinion we did not pass upon the sufficiency of the showing made by appellant to entitle her to the allowances sought, but in consideration of the limitations of the certificate to the bill of exceptions we cannot say that any showing whatever was made entitling the appellant to allowances. This being true, there is no basis justifying a reversal of the order.

3, 4. An order may be proper though a wrong reason may be given for it. Richards v. Vermilyea, 42 Nev. 294, 300,180 P. 121. On appeal, error must affirmatively appear to justify a reversal. Water Co. v. Belmont Dev. Co., 50 Nev. 24, 249 P. 565.

The order heretofore entered herein, reversing a portion of the order appealed from denying allowances, is hereby vacated, and said order as to allowances is affirmed in its entirety.