Berry v. Equitable Gold Mining Co. , 29 Nev. 451 ( 1907 )

By the Court,

Talbot, C. J.:

The plaintiffs brought this action by a complaint alleging that the water of a spring had been appropriated by Jack Shepard and by him deeded to them, and demanded an injunction perpetually enjoining the defendant from interfering therewith. The case was tried by a jury, which brought in a verdict "in favor of the plaintiffs,” and found special issues, and among these that Shepard had appropriated twenty gallons per day of the water. At the time of returning the general verdict the jury had omitted to find upon the special issues which had been submitted to them, and the court had them retire and find upon these special issues. The next day the clerk entered a judgment, reciting and premised upon the general verdict in favor of the plaintiffs for the water, and directing that the defendant be perpetually enjoined from interfering with it. In reference to this entry it is stated in the record that " the county clerk of his own motion, without any order from the court, without any findings from the court, without any order of the court adopting said findings of the jury, entered judgment.” Many months later the defendant moved to set aside this judgment. The court denied the motion, and directed the entry nunc, pro tunc of an order for judgment in accordance with the verdict. The facts are more particularly stated in the decision on the proceedings in mandamus to require the settlement of the statement on appeal. (State v. Murphy, 29 Nev. 247.)

The notice and undertaking on appeal state that this appeal is from the judgment and from the order of the district court overruling defendant’s motion to set it aside. Respondents moved to dismiss the appeal upon the ground that no statement had been settled. There are two volumes, duplicates, entitled "Statement on Appeal,” both indorsed as filed September 8, 1906, by, and shown to be in the handwriting of, the clerk of the district court. These appear to be identically the same excepting that one is indorsed "copy,” and the motion to dismiss is upon the ground that this, instead of the original, is the one that has been settled by the district judge. On the- hearing in this court we directed that the latter might be filed, or that the other copy could be indorsed by the district judge and filed. The volumes being the same, and both equally showing the proceedings in the trial court, the fact that the certification of settlement was attached to the one marked " copy ” after this court had directed that the statement be settled we think is immaterial and should not deprive the appellants of the right of appeal or of presenting their case. As the one marked " copy ” bears the filing and signature of the clerk and the certificate and signature of the judge, it may be considered as the original and the indorsement of the word " copy ” as a misnomer.

Respondents made a second motion to dismiss the appeal upon other grounds, part of which had been determined in the mandamus proceedings, but this motion, under the court rule, comes too late, and the right to make the same is waived because it was not made before the day of the hearing nor until after respoD dents had filed their brief.

It is said that no question regarding the sufficiency of the order of the district judge directing that judgment be entered in accordance with the verdict can be considered, because no exception was taken to the order at the time it was made upon the rendition of the verdict. It is true that no exception was so taken, because the order was not then heard by counsel or the clerk; but, when the nunc pro tune order was made, and as soon as counsel was aware of the direction that judgment be entered, exception was taken, and due specification of error and the proceedings of the court are contained in the record.

It is also claimed that any defect in the judgment cannot be considered for the reason that by omission of the summons there is no judgment roll before this court. Although the statute directs the clerk to include the summons as part of the judgment roll, it is not necessary that there should be one in all cases. The object and purpose of the summons is to bring defendants into court, and the practice act provides that they may appear without summons, and if they so appear no reason exists why they may not have their cases reviewed on appeal in the same manner as others where there may be a summons in the case. In fact, the summons is imperative only in default eases in which no appeal lies. Here we have before us all the papers directed to be placed in the judgment roll excepting the summons, which is not essential, as the defendant was in court and the judgment itself is sufficient without reference to any other paper to indicate its invalidity. It shows that it was entered by the clerk upon the verdict, and that it attempted to grant relief by perpetual injunction, which under the statute he was not authorized to give. It is not signed by the judge, and contains no reference to any order of the court. If the order entered nunc pro tunc be considered, it directs the entry of the judgment in accordance with the verdict, without specifying the general or special verdict.

For respondents it is argued that they had a constitutional right to a jury, and were entitled to the result of the verdict and to have a judgment entered upon it by the clerk. If this were true, and the case were not one in equity (Duffy v. Moran, 12 Nev. 97), still neither the verdict nor the order of the judge directs the entry of the decree for perpetual injunction which was made by the clerk. Consequently, and too clearly for argument, this judgment shows upon its face that it is void and cannot be sustained upon any legal principle, because it was entered by the clerk, a ministerial officer who could not act - judicially in this regard and who was not directed to enter such decree by any order of the court, and was not, and could not have been, authorized to enter it by the verdict of the jury. On a motion for that purpose the court could have set aside this decree as having been inadvertently entered by the clerk and unauthorized, and the appeal is properly from his order in that regard and from the judgment as presented with the papers essential to be brought here in the judgment roll.

As the plaintiffs base their claim upon an appropriation alleged to have been made by Shepard, they are limited to the amount which was beneficially used by him. The jury found that this was ten gallons for mining and ten gallons for domestic purposes each day. Where there is a general and a special verdict, if either has any force, the latter controls. If the jury desired to give the plaintiffs all the water flowing from the spring or more than twenty gallons per day because they found that their grantor Shepard had used that quantity, nevertheless the law would limit the right to the amount beneficially appropriated. By directing judgment in accordance with the verdict, it may be assumed that the district court approved of the finding of the jury and found in favor of an appropriation by Shepard- to the extent of at least twenty gallons per day. The defendant complains because the decree was not modified so as to allow the plaintiffs this quantity. The judgment being void because its nature was such that its entry was unauthorized by the clerk, the condition of the ease is not so materially different than it would be if no decree had been entered. At least, with the consent of the parties, the findings may be considered a correct determination of the facts and as warranting the entry of a proper decree upon them by the district court, even if the judge who tried the case has been succeeded in office. (Jerrett v. Mahan, 20 Nev. 90, 17 Pac. 12.)

Respondents’ motions to dismiss the appeal are denied, the judgment is set aside, and, if within twenty days after filing of the remittitur the plaintiffs file their written consent that judgment be entered in favor of them for the use of twenty gallons per day of the-water of the spring in controversy and for costs of suit and for a perpetual injunction restraining defendant and its agents and employees from interfering with the free use by the plaintiffs of that quantity of the water per day, a decree will be so entered by the district court, but otherwise a new trial will be had.