Gascue v. Saralegui Land & Livestock Co. , 69 Nev. 245 ( 1952 )

OPINION

Per Curiam:

This is on motion by the respondents to dismiss the appeal of the appellants, and counter-motion of the appellants to remand the record on appeal for correction and amendment.

Respondents’ motion to dismiss is based upon the fact that the bill of exceptions filed in this matter contains no certificate by the clerk of the trial court to the papers making up the judgment roll which are contained as a part of the bill of exceptions, such certificate being required by the provisions of sec. 9385.92, N.C.L.1929, 1931-1941 Supp.

Appellants’ motion is based upon the provisions of sec. 9385.77, N.C.L.1929, 1931-1941 Supp., providing as follows: “No appeal shall be dismissed by the supreme court for any defect or informality in the appellate proceedings until the appellant has been given an opportunity, upon such terms as may be just and within a reasonable time to be fixed by the court, to amend or correct such defect, and shall within such time have failed to comply with any terms imposed and correct the defect,” and upon Rule 7 of the rules of this court which provides, “For the purpose of correcting any error or defect in the transcript from the court below, either party may suggest the same, in writing, to this court, and, upon good cause shown, obtain an order that the proper clerk certify to the whole or part of the record as may be required, or may produce the same, duly certified, without such order.”

In our view it is clear that the lack of certificate is a defect or informality within the meaning of sec. 9385.77 and Rule 7 of this court, and that the record, accordingly, should be remanded for correction in that respect. Such is the action which this court has in the past taken in similar cases. State v. Bouton, 26 Nev. 34, 62 P. 595; Shirk v. Palmer, 48 Nev. 449, 232 P. 1083, 236 P. 678, 239 P. 1000.

The motion of respondents to dismiss the appeal is denied. The motion of appellants is granted and the record herein is ordered remanded to the clerk of the trial court with the direction that within two weeks from date hereof it be corrected and amended in the respects specified and returned to the clerk of this court.