Twist v. Kelly , 11 Nev. 377 ( 1876 )

By the Court,

Beatty, J.:

This is one of those cases in Avhicli the vendee of personal property claims damages-for its seizure under process against the vendor, and in Avhicli the principal question is whether or not the sale is void as to the creditors of the vendor, by reason of the want of immediate delivery or actual and continued change of possession. 'The plaintiff recovered judgmenfc in tbe district court, and the defendants appeal from the judgment and the order of the court overruling their motion for a new trial. The respondent objects to the consideration of the appeal from the order, on the ground that it does not appear from the transcript that the statement on motion for new trial was filed in time. We think, however, that for more than one reason this objection cannot be sustained. In the first place, the statement contained in the transcript does not purport to be the original statement filed by the appellant; but, on the contrary, does purport to be the engrossed statement settled and certified by the district judge. The fact that it is certified by the judge to be a correct engrossed statement proves that the respondent must have proposed amendments to an original statement, and this was a waiver of any objection that the original statement was not filed in time. In the next place, the transcript contains a copy of an order made by the district judge before the time for filing the statement had expired, extending the time for filing it, and it appears to have been filed within the time so extended. The respondent, it is true, contends that this order is not properly a part of the record of the case, and must be ignored because it does not appear to have been used or referred to on the hearing in the court below, and because as a matter of fact it was not so used or referred to. On the same ground she objects to the consideration of a number of other papers which were on file in the district court at the time of the hearing, and are included in the transcript, all of which go to. show that the original statement was filed in time.’ Without conceding the correctness of the position of counsel with respect to these papers'—that they cannot be considered here- because they were not actually used on the hearing of the motion in the district court, and are not indorsed with a certificate to that effect, we say, that if this position is correct, it proves conclusively that his objection to the statement was not made in time. If he had objected at the hearing of the motion in the district court to any consideration of the settled statement, on the ground that the original statement had not been filed in time, 'all the papers and documents on file bearing upon that question would have been used, and would then, on his own theory, have been properly included in the transcript. By failing to make the objection then, when it might have been met by the appropriate proofs, he must be held to have waived it. The case of McWilliams v. Herschman (5 Nev. 363), does not sustain him in his position that he may raise the objection to the statement in this court for the first time. We are quite satisfied with the correctness of the decision in that cáse, but it is not applicable to this. There the objection to the statement was that it contained no specification of the errors relied on by the moving party, and it was properly held ‘that this intrinsic and incurable defect might be taken advantage of at any time. But the case is very different when the objection is based upon extrinsic matters which must be decided upon the evidence afforded by affidavits, and notices, and orders, and other documents on file in the district court. In one case there is nothing to be decided but a pure question of law, arising upon and fully presented by the record. In the other, the question to be decided is one of fact, which can be investigated nowhere so conveniently as in the district court, and which no one is so competent to decide, especially in case of a conflict of evidence, as the district judge. It ought, therefore, to be first raised in the district court, and if either party is dissatisfied with the decision of that court, the motion to disregard the statement and all the evidence adduced upon the hearing, can be made a part of the case on appeal, and can then be fairly reviewed. If there is no question-as to the regularity of the steps taken in moving for a new trial, it is desirable on grounds of convenience, as well as economy, that the transcript should not be encumbered with papers which serve no other purpose than to show that the moving party has proceeded regularly; and we, therefore, take occasion to make the announcement that this court will not notice an objection to the statement on motion for new trial based upon the ground taken by the respondent in this case, unless the transcript shows that the objection has been'made in the district court, and the moving party thereby afforded an opportunity of supplying the necessary proofs, if they exist.

Upon the merits of the case presented by the statement on motion for new trial there is little to be said. The only point urged by the counsel for appellant in his argument before this court is, that the evidence did not show a sufficient delivery and change of possession of the goods in controversy to bind creditors of plaintiff’s vendor. But taking the construction given by this court to the provisions of the statute of frauds relating to this subject in the case of Gray v. Sullivan (10 Nev. 416), it is clear that the evidence was sufficient to sustain a finding of immediate delivery and actual and continued change of possession, and upon the authority of that case the judgment must be-affirmed.

Judgment and order affirmed.