Ward v. Pittsburg Silver Peak Gold Mining Co. ( 1915 )

By the Court,

McCarran, J.:

In this action, on April 13, 1914, respondent moved to dismiss the appeal. The motion to dismiss the appeal from the final judgment was based upon the ground that the appeal from that judgment was not taken within six months after the entry thereof. The motion to dismiss the appeal from the order denying a new trial was based upon the ground that appellant did not, within twenty days after the rendition of the judgment, or within twenty days after the making of the order denying a motion for a new trial, or at any time, file or serve any statement on appeal. As to the motion to dismiss the appeal from the final judgment, this court, speaking through Mr. Chief Justice Talbot, decided that respondent’s motion to dismiss was well taken, and the order was entered that the appeal from the final judgment be dismissed. (Ward v. Pittsburg Silver Peak Gold Mining Co., 37 Nev. 473.) As to the appeal from the order denying appellant’s motion for a new trial, in the case of Ward v. Pittsburg Silver Peak Gold Mining Co., supra, we said:

“The case will be retained for consideration on appeal for such questions as may duly appear from the record and from the minutes of the court when admitted to have been properly before and considered by the district judge in passing upon the motion for a new trial. The papers, not appearing to have been before or so considered by the court upon the hearing of the motion for a new trial, or properly before this court, may later be stricken from the files. As to which papers these should be, counsel may present their views when argument is had upon the merits. * * * The other motions of the respondent are denied for the present, subject to the right of the court to eliminate from the files any papers after, the minutes which will be admitted have been considered and argument had.”

On the final argument of this case, counsel for respondent renewed their motion to dismiss the appeal from the order denying a new trial.

The first contention of counsel for respondent is that a certain instrument, entitled “Memorandum of Exceptions,” embodied in the judgment roll, should be stricken from the files, inasmuch as it has no place in the judgment roll. Counsel’s second contention is that no statement on appeal or bill of exceptions was ever filed by appellant in the case, and that therefore there is nothing before this court for review. We shall deal with both propositions in one consideration.

Our appellate jurisdiction governing cases brought to this court from the several district courts, strictly speaking, is found in the sections of the Revised Laws Nos. 5325 to 5361, inclusive. The procedure governing applications for new trial is contained in section 5319 to section 5324, inclusive. The procedure, or the essential steps of the. procedure, in furtherance of motion for a new trial, made before the trial judge in the district court, must not be confused with the several steps essential to the perfection of an appeal from the district court to the supreme court. Each procedure and each step in the respective procedure is essentially independent of the other. Section 5322, Revised Laws, being section 380 of the civil practice act, pertaining to applications for a new trial, sets forth:

“Where the motion is made upon the seventh cause mentioned in the preceding section (error in law occurring at the trial and excepted to by the party making the application), the party moving shall, within ten days after the service of notice of motion for a new trial, unless further time be obtained by stipulation or order of the court, serve upon the adverse party a memorandum of such errors excepted to as he intends to rely on upon the motion, and such memorandum shall contain a verified statement of his attorney that in the judgment of such attorney the exceptions so relied upon are well taken in the law. No other errors under subdivision 7 shall be considered either upon the motion for a new trial or upon appeal than those mentioned in such memorandum.”

By the preceding section, to wit, section 379 of the civil practice act, it is provided that where the motion for a new trial is made upon the fifth, sixth, or seventh grounds (excessive damages appearing to have been given under the influence of passion or prejudice; insufficiency of the evidence to justify the verdict or other decision, or that it is against law; error in law occurring at the trial and excepted to by the party making the application), it must be made upon the minutes of the court, without statement or bill of exceptions. Reading these two sections together, the procedure may be stated in simple language as follows: Where the application for the new trial is made upon the first, second, third, or fourth ground as set forth in section 378 of the civil practice act, the application must be supported by affidavit. Where the application for a new trial is made upon the fifth or sixth ground, the movant must rely upon the minutes of the court and pleadings, and the orders, the depositions, and documentary evidence, and the stenographic notes or report of the testimony and the records of the court had, made, taken, or entered during the course of the proceedings. If the motion for a new trial is based upon the seventh ground, as set forth in section 378, the movant must, within ten days after the service of notice of motion, unless further time be obtained by stipulation or order of the court, serve upon the adverse party a memorandum of such errors excepted to as he intends to rely on in furtherance of his statement that, in his judgment, the exceptions so relied upon are well taken in the law. Where the movant relies upon the seventh cause, he can assert no other errors under that cause than those which he specifically sets forth in his verified memorandum of errors. From these several provisions of the civil practice act, it must be observed that each of the several phases mentioned are essential steps in the procedure on motion for a new trial.

Section 5325, Revised Laws, being section 383 of the civil practice act, prescribes that:

“A judgment or order in a civil action, except when expressly made final by this act, may be reviewed as prescribed by this title, and not otherwise.”

By the provisions of section 386 of the civil practice act, the party who seeks to appeal upon the ground either that the evidence is insufficient to justify the verdict or the decision of the court, or to support the findings, or who appeals upon alleged errors in rulings upon the evidence, or upon the giving of instructions claimed to be erroneous, must present his motion for a new trial to the trial court and have the same determined before the appeal can be taken.

Section 389 of the civil practice act defines a statement on appeal, and prescribes the method of preparing, serving, filing, and finally settling the same, and, in part, is as follows:

“When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall, within twenty days after the entry of such judgment or order, if he or his attorney was present at the time of the making or entry thereof, or if the appeal is from a judgment based upon a verdict, and in other cases, within twenty days after receiving written notice of the entry of the judgment or order, prepare a proposed statement, and number the pages and lines thereof, which proposed statement shall specify the particular errors or grounds upon which he intends to rely on the appeal, and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified, and no more, and shall file the same with the clerk and serve a copy thereof upon the adverse party. * * * The respondent may, within ten days thereafter, prepare and file amendments to the statement.”

Section 393 of the civil practice act provides:

“If the.party shall omit to make a statement within the time limited, he shall be deemed to have waived his right thereto; and when a statement is made and the parties shall omit within the several times above limited, the one party to propose amendments, the other to give the notice that he declines to admit the amendments, they shall respectively be deemed, the former to have agreed to the statement as prepared, and the latter to have agreed to the amendments as proposed; but the judge or referee who tried or heard the case shall, notwithstanding such omission or implied agreement, have power to correct any misstatement of his rulings which such statement may contain.”

This latter section has received construction by this court in several cases. In the case of Williams v. Rice, 13 Nev. 234, Mr. Chief Justice Hawley, in speaking for the court, held that when an appeal is only taken from a judgment, a statement that had been prepared and used as a statement on motion for a new trial cannot be considered as a statement on appeal. The case of Williams v. Rice, supra, is especially significant in the consideration of the case at bar, in view of the fact that the statement on motion for a new trial mentioned by the court in that decision has been since done away with, and its place is filled by that which is termed “Memorandum of Exceptions,” as prescribed by section 380 of the civil practice act. In the Williams-Rice case, supra, it was contended by the appellant that, inasmuch as the statement on motion for a new trial was filed within the time allowed by law for the preparation of a statement on appeal, the appellate court ought to consider it as a statement on appeal, regardless of the fact that it did not purport to be such statement. In the case at bar, it is the contention of counsel for appellant that the memorandum of exceptions included in the record on appeal should be considered as a bill of exceptions as contemplated by section 401 of the civil practice act (section 5343, Revised Laws). The terms of the last-mentioned section are as follows:

“At the time a decision, order or ruling is made, and during the progress of the cause, before or after judgment, if the opposing party or his attorney be present, a party may take his bill of exceptions to the decision, order, admission, or exclusion of testimony or evidence, or other ruling of the court or judge on points of law, and it shall not be necessary to embody in such bill anything more than sufficient facts to show the point or pertinency of the exceptions taken. The presiding j udge shall sign the same as the truth of the case may be, and such bill shall then become a part of the record, and any party aggrieved may appeal from the judgment or any appealable order without further statement or motion; and on such appeal it shall only be necessary to bring to the supreme court a transcript of the pleadings, the judgment, and the bill or bills of exception so taken.”

The contention of counsel for appellant in the case at bar is that, the instrument entitled “Memorandum of Exceptions” having been filed prior to the order denying appellant’s motion for a new trial, it should be regarded by this court as a bill of exceptions, and counsel, in his brief especially refers us to section 5343, Revised Laws, quoted above. But can this memorandum of exceptions, so-called, be regarded in any sense as a bill of exceptions such as that contemplated by section 5343? We think not. Upon its very face the instrument shows that it was not so regarded by appellant in the court below. The instrument is entitled “Memorandum of Exceptions.” This entitling, of itself, would have no special significance if it were otherwise in conformity with section 5343, Revised Laws. But, aside from that, the instrument in its introduction is as follows:

“The following memorandum of exceptions is herewith submitted and relied upon in support of defendant’s motion for a new trial, duly noticed, and which said exceptions, and each thereof, are material and affect the substantial rights of defendant, and were duly taken and noted in open court to the rulings of the above-entitled court upon the trial thereof, and which said rulings are herewith assigned as error, prejudicial to the defendant, material, affecting defendant’s substantial rights and entitling it to a new trial.”

At the conclusion there appears the verification of one of the counsel for appellant, and this verification in its phraseology distinctly shows the purpose for which the instrument and the various assignments therein contained were intended. Moreover, it shows clearly that it was a proceeding resorted to by appellant in furtherance of the motion for a new trial before the court below, under the provisions of section 5322, Revised Laws. The verification of attorney for appellant in this respect is as follows:

“State of Nevada, County of Ormsby — ss.:

“Samuel Platt, being first duly sworn, upon oath deposes and says that he is one of the attorneys for the defendant and movant in the above-entitled case, and that in his judgment the above and within exceptions, hereinabove appearing in said memorandum of exceptions, are well taken in the law.”

No such verification as this is required, either of counsel or of the litigant, by section 5343. The whole proceeding, as disclosed by the record, clearly indicates that this memorandum of exceptions was not regarded by the appellant or by the trial judge in the court below as a bill of exceptions such as is contemplated by section 5343. Under the procedure providing for the taking of appeal to this court, as prescribed by our statute, two methods are provided, and these are separate and distinct from each other. The one which is set forth by section 5331 makes provision for a statement of the case to.be annexed to the record of the judgment or order appealed from, when the party appealing wishes' such statement to be annexed. The other, which is provided by section 5343, makes no provision for, nor does it contemplate, the bringing of a statement of the case to the court of review. This provision contemplates a list of exceptions taken by the aggrieved party to the decisions, order, or rulings upon the admission or exclusion of testimony or evidence, or other ruling of the court or judge on points of law during the course of the proceeding. It makes no provision for verification, nor does it require such, nor is it necessary to do more than to present this bill of exceptions, in the presence of the opposing party or his counsel, to the trial judge, who is required to sign the same after such bill has been made to conform to the truth according to the record. This bill of exceptions, when thus signed by the trial judge and filed, becomes a part of the record, and, as the statute sets forth, the party aggrieved may appeal from the judgment or any appealable order without further statement or motion. But a memorandum of exceptions such as that set forth in the record in this case, used and regarded as a memorandum of exceptions in the court below, and used and regarded solely in furtherance of appellant’s motion for a new trial, cannot be held to fill an entirely different office when brought to this court. (Western E. Co. v. Nev. A. Co., 33 Nev. 203, 110 Pac. 1129.)

Under section 5343, Revised Laws, it is clearly con-templáted, when a bill of exceptions is taken, signed by the judge “as the truth of the case may be,” that “the opposing party or his attorney be present.” The purpose of providing for the presence of the opposing party or his attorney is to offer an opportunity to be heard in the matter of the settlement or allowance of the bill or bills of exceptions. The opposing párty or his attorney have nothing whatever to do with the memorandum of exceptions filed and served in support of a motion for a new trial, nor with an assignment of errors embodied in a statement on appeal from a judgment or order. A party may make such memorandum of exceptions or assignment of errors as he may see fit. As said by Beatty, C. J., in Fleeson v. Savage Silver Mining Co., 3 Nev. 167:

“The defeated party in any cause may file an assignment of error, containing anything he may choose to insert therein. He may assign a hundred errors having no foundation in fact and no connection with the case. The opposing counsel, in settling the statement, could not deny the filing of such an assignment of errors.”

It not only clearly appears in this case that the memorandum of exceptions does not purport to be a bill of exceptions signed by the judge in accordance with section 5343, supra, but that they were not settled or signed in the presence of the opposing party or his attorney, nor was any opportunity afforded them to be heard in reference thereto.

In the case of Williams v. Rice, supra, Mr. Justice Beatty, in dissenting from the prevailing opinion, held that a statement on motion for a new trial could also serve the purpose of a statement on appeal, and speaking of the statement before the court in that case, he said:

“In this case the statement was settled, engrossed, certified, and filed within five days after judgment. * * * It was made and settled, certified, and filed in exact conformity with every requirement of sections 332, 333, 334, and 335 of the practice act.”

The reasoning set forth in the dissenting opinion of that able jurist would not serve here to further the contention of appellant that the memorandum of exceptions could serve in the place of a statement on appeal, much less that it could take the place of the bill of exceptions. In the case at bar there was no settlement of the memorandum of exceptions, so called. A blank form of settlement, drawn to be signed by the district judge, and set forth on page 115 of the record attached to the memorandum of exceptions was neither dated nor signed by the trial judge. Hence it follows that, even were we inclined to agree with the reasoning set forth in the dissenting opinion of Mr. Justice Beatty in the Williams-Rice case, supra, as affording a solution to the matter at bar, to relieve the appellant of the fatal omission, we are precluded from doing so, in view of the fact that the provisions of the statute applicable to the settlement of statements on appeal were not complied with here, in that the district judge did not assume to settle such statement or to regard it as a statement on appeal or bill of exceptions.

There is nothing in the statute, as we view it, that would authorize a memorandum of exceptions, made and filed in furtherance of a motion for a new trial, to assume the office of a statement on appeal. The opposing party in any action is always vitally interested in the proposed statement on appeal, required to be filed and served before settlement by the trial judge, under provisions of section 389 of the civil practice act. Whether the assignment of errors may or may not be well taken depends upon the statement on appeal as finally settled. If the opposing party is not satisfied with the proposed statement, he may propose amendments thereto, and may be heard upon the question of the allowance of his proposed amendments. If no proposed amendments are filed, the opposing party is deemed to assent to the proposed statement. It necessarily follows, not only from the language of the statute governing the settlement of a statement on appeal, but from the manifest reason upon which the statute is based, that an assignment of errors that is not supported by a duly settled statement on appeal can have no force or effect whatever. In this case there is neither a bill of exceptions nor a statement on appeal, settled or allowed by the trial judge, or with which the opposing party has had any opportunity to be heard thereon.

This so-called memorandum of exceptions, designated as such, was filed in the court below and served on the respondent, and respondent was bound to take notice of the purposes for which the memorandum of exceptions would be used, and none other, namely: “Relied upon in support of defendant’s motion for a new trial, duly noticed.” If the so-called memorandum of exceptions was to be regarded as having the force and effect of a statement on appeal, then, under the provision of section 5331, the respondent would have been entitled to an opportunity j;o present such amendments to that statement as he saw fit, and to have the same passed upon by the trial court. To now give this instrument the dignity of a statement on appeal would be not only to disregard the specific provisions of the statute, but would be to deprive the respondent of that right which the statute and procedure accorded him. Respondent was not bound, nor was he even privileged, to submit amendments to a memorandum of exceptions; but if that memorandum of exceptions was to be regarded as a statement on appeal, he should have been so notified by the instrument itself, and if he then failed to present his amendments, he could not complain.

As we have already stated, we can see no good reason or authority for regarding this instrument, designated “Memorandum of Exceptions,” in any different light from what it was regarded by the appellant herein and by the trial court prior to the making of the order denying appellant’s motion for a new trial. To serve notice upon a party litigant by the specific terms of an instrument that the instrument itself, as in this case, is to be regarded as a memorandum of exceptions in the court below, and, later, when the instrument is brought to this court, then for the first time to declare that the instrument should have an entirely different significance, would be to not only depart from the specific provisions of the statute providing procedure in matters of appeal, but would be to work an injustice upon the party who might be affected thereby. In our judgment, a party is estopped, by his own position assumed in the court below, from taking a contrary position here, where certain rights of the opposing-parties have thereby been cut off without fault on their part. (State v. Commissioners of Lander County, 22 Nev. 75, 35 Pac. 300; 16 Cyc. 796, and cases there cited.) However reluctant we may be to dismiss an appeal, the jurisdiction of this court can only attach where there has been at least a substantial compliance with those specific provisions of the statute governing matters of appeal.

In view of the fact that, in our judgment, there is no statement on appeal in this case and no bill of exceptions, it follows that there is nothing before this court for review.

Inasmuch as the appeal from the judgment was, by a former decision of this court, dismissed (Ward v. Pittsburg Silver Peak Gold Mining Company, supra), and there is nothing before this court to review on the appeal from the order denying a new trial, and there is no contention that the judgment roll contains errors, it follows that the order of the lower court in denying appellant’s motion for a new trial should be affirmed.

It is so ordered.