Nevada Transfer & Warehouse Co. v. Peterson , 60 Nev. 87 ( 1939 )

OPINION This case is before the court on a motion to strike portions of the bill of exceptions, and petition to disallow appellant's objections contained therein. The matter challenged in this way is found in appellant's bill of exceptions from page 304 to 314, and consists of certain instructions proposed by appellant and refused by the court, or modified by the court and given; certain instructions proposed by respondents and given, or given as modified; and appellant's objections thereto and exceptions to the rulings of the court in each instance.

In support of their motion and petition respondents presented their bill of exceptions and an affidavit of their counsel showing steps taken by them in the court below to prevent the matter complained of from being incorporated in appellant's bill of exceptions and the reasons therefor. Counsel for appellant objected to their consideration. In view of our conclusion as to the merits of respondents' motion and petition, their bill of exceptions and counsel's affidavit may be put aside.

1, 2. Appellant makes several points against the allowance of the motion and petition, or either. The first of these being well taken, those remaining need not be considered. The point is that there is no statute authorizing this court to strike or disallow a part of a bill of exceptions. Sec. 8872 N.C.L. (reenacted in chapter 32 of the Statutes of 1937 at page 64) on which respondents base their contention, provides a method for proving an exception which the trial judge has refused to allow in accordance with the facts. If such exception is allowed by the supreme court it becomes a part of the record in the cause. This is the extent to which the foregoing statute empowers this court, in force and effect, to alter a bill of exceptions. Nowhere is this court given authority to expunge anything from a bill of exceptions. The action of the lower court is conclusive as to matter incorporated in it.

Respondents also base their motion and petition on a certain statement made by the court in the case of Miller v. Miller,36 Nev. 115, 134 P. 100, 104. The statement relied on is as follows: "if either party to the action feel aggrieved by reason of matters either inserted in or omitted from the statement, that party may apply to this court under section 374 of the civil practice act to prove either certain exceptions were reserved to rulings actually made, or that no such exceptions were made orreserved." (The italicizing is ours.)

Section 374 of the civil practice act referred to above was as to the method provided for proving an exception, the same as the provision before us.

It will be observed on a careful reading of the opinion in Miller v. Miller, supra, that the statement italicized above is dictum. The application to the court was to prove exceptions. True, the petitioner also asked to have his statement settled without the insertion of certain matter required by the respondent judge to be inserted therein but this was pursuant to his application to prove his exceptions and the matter he claimed to be in proof thereof. That the supreme court so considered the application is apparent from its statement on page 125 of36 Nev., 134 P. at page 103 of the opinion, "if it be anything it is only a case in which certain exceptions contended for by petitioner have not been allowed."

3. Moreover, the application was held to be premature for the reason that the trial judge had not settled the bill of exceptions. It is significant to note that the language relied on by respondents as ruling, was not even in substance stated in the syllabus. It is interesting to note that the court, more than once in its opinion, stated the sole purpose of said section 374 to be as we have concluded, as to the provision before us. On page 126 of 36 Nev., 134 P. on page 103 of the opinion the court said: "The sole purpose and aim of the statute is to permit a party aggrieved, under a proper application to prove an exception actually taken to a ruling actually made, and when so proven the exception and ruling and the facts applicable thereto become a part of the record on appeal, but not in the nature of an amendment to the bill of exceptions or statement on appeal as settled by the trial court." Again on page 127 of 36 Nev., 134 P. on page 104 the court said: "The sole object of the statute is to afford relief to a party aggrieved when a trial judge has refused to allow an exception according to the facts; that is, where he has refused to admit by allowance that a particular ruling was made and excepted to when in fact it was made and excepted to."

Furthermore, the point is not open to controversy. It was determined adversely to respondents' contention in Ryan et al. v. Landis et al., 58 Nev. 253, 74 P.2d 1179. See also Quinn v. Quinn, 53 Nev. 68, 292 P. 620, 295 P. 1111, 2 P.2d 130.

The motion to strike and petition to disallow are hereby denied.

TABER, C.J., concurs.

COLEMAN, J., died before the foregoing opinion was completed.

ORR, J., did not participate in the consideration of any matters connected with this case.