Barbash v. Pitt , 48 Nev. 108 ( 1924 )

ON MOTION TO DISMISS AND STRIKE Defects and omissions in transcript or return may be either expressly or impliedly waived. 3 Cyc. 147.

Right to move to dismiss is waived if extension of time for filing brief is asked for and received. Miller v. Walser, 42 Nev. 497.

Certificate need not be framed in exact language of statute. It is sufficient if it affirms that all proceedings are included. 3 Cyc. 109.

Motion to dismiss sixty days after filing transcript is too late. Miller v. Walser, supra. Record, and particularly bill of exceptions from order denying motion for new trial, was not filed within thirty days after appeal was perfected. Supreme court rule 2; 2 Rev. Laws, p. 1421.

Reporter's transcript may be filed in lieu of bill of exceptions. Stats. 1923, 64. When transcript was filed it became bill of exceptions and should have been transmitted to this court within thirty days. Bill of exceptions was not filed here until four months after it appears to have been filed and five months after it was certified.

No errors or exceptions are specified in memorandum of errors under 7th subdivision of Rev. Laws, 5320, nor within twenty days after order denying motion for new trial as required by 1923 Stats. 163, sec. 1.

Certificate does not conform to statutes in that it does not certify that point or points involved are in record. Capurro v. Christensen, 209 P. 1045; Cochran v. Dodge, 204 P. 879; Rickey v. Douglas M. M. Co. 204 P. 504; 205 P. 328.

Purported bill of exceptions does not contain pleadings, proceedings, bill of exceptions in chronological order and indexed as required by supreme court rule 4, subdivisions 1, 4 and 5. Various exhibits are missing. We waive lack of folio numbering.

OPINION This is a motion to dismiss an appeal taken from the judgment and order denying the motion for a new trial, and to strike certain parts of the record. The grounds of the motion to dismiss are stated in the notice of motion substantially as follows:

"That the record on appeal was not filed in this court within 30 days after the appeal had been perfected and the bill of exceptions settled; that no memorandum of exceptions or errors was filed in the lower court on motion for a new trial as required by law; that the bill of exceptions from the order denying the motion for a new trial was not filed and served within 20 days after the entry of said order."

The motion to strike is directed to the several bills of exceptions appearing in the record, and is based upon the claim that the same have not been filed, served, settled, and certified as required by statute, and within the time required thereby, and that the same do not contain the pleadings, proceedings, and are not chronologically arranged, prefaced with an alphabetical index specifying the folio numbers in any manner whatever, as required by rule 4 of the supreme court rules. The record before us contains a duly certified copy of the judgment roll, and annexed thereto is a transcript of the proceedings, evidence, and testimony, duly certified to by the court reporter pro tem. The transcript was filed in the lower court on October 16, 1923, and bears this indorsement:

"Oct. 16, 1923. The following bill of exceptions is hereby offered for settlement by the defendants. Booth B. Goodman, Attorney for Defendants."

It contains what purports to be a bill of exceptions on motion for a new trial, a bill of exceptions on motion for a continuance, and a bill of exceptions on motion for a modification of, and new findings of fact and conclusions of law, each certified to by the trial judge as having been allowed and settled on January 19, 1924. The appeal was perfected on September 14, 1923, and the foregoing transcript and copy of the judgment roll, constituting the transcript of record on appeal, was filed in this court on February 18, 1924.

1. Respondent contends that the transcript of the proceedings, evidence, and testimony certified to by the reporter constitutes a bill of exceptions by virtue of section 1 of "An act to regulate proceedings on motions for new trials and appeal in civil cases" (Stats. 1923, p. 163); that consequently the transcript of record on appeal should have been filed in this court not later than 30 days after the appeal had been perfected and the bill of exceptions settled, as provided for in rule 2 of the supreme court rules. This rule reads:

"The transcript of the record on appeal shall be filed within thirty (30) days after the appeal has been perfected and the statement settled, if there be one." 2 Rev. Laws, p. 1421.

The statute of 1923, supra, in section 1, provides:

"At any time after the filing of the complaint and not later than twenty (20) days after final judgment, or if a motion be made for a new trial, then within twenty (20) days after the decision upon such motion, any party to an action or special proceeding may serve and file a bill of exceptions to such judgment or any ruling, decision, order, or action of the court, which bill of exceptions shall be settled and allowed by the judge or court, or by stipulation of the parties, by attaching thereto or inserting therein a certificate or stipulation to the effect that such bill of exceptions is correct, contains the substance of the proceedings relating to the point or points involved and has been settled and allowed, and when such bill of exceptions has been so settled and allowed it shall become a part of the record in such action or special proceeding. A transcript of the proceedings certified by the court reporter to be a full, true, and correct transcript thereof may be filed in lieu of such bill of exceptions and when so filed shall be and constitute the bill of exceptions without further stipulation or settlement by the court: Provided, however, that on motion duly noticed, the court may at any time correct any error in such transcript by appropriate amendment thereto."

We are of the opinion that it is plainly evident from the language of the section that it was intended to give an appellant the right to have a bill of exceptions settled and allowed by the judge or court, or by the agreement of the parties, or use the reporter's transcript properly certified instead. The indorsement of the attorney for appellants on the transcript shows that he intended to avail himself of one of the former methods, and the reporter's certificate on the transcript could not operate to deprive him of this right. An attorney may prefer one of the former methods, to avoid the possibility of delay which might be occasioned by the necessity of correction "on motion duly noticed." As the transcript of the record on appeal was filed within 30 days after the appeal had been perfected, and the bills of exceptions settled by the court, the motion to dismiss on this ground must be denied.

2. We have gone thus far into the merits of the motion merely for the purpose of giving to the bar the benefit of our opinion upon a new statute on procedure, for we think that all objections included in the motion have been waived by the conduct of respondent in recognizing the appeal and by not making a timely motion, except the objection that the bills of exceptions were not served and filed within the time required by law. As we have seen, the transcript of the record on appeal was filed in this court on February 18, 1924, but the notice of motion and motion to dismiss and strike were not filed until April 25, 1924, something over two months later. We do not regard this as timely. If dilatory motions to dismiss are recognized, a hearing on the merits may be unreasonably delayed thereby, for under section 2 of said statute:

"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 shall 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."

3. It appears that the attorneys for respondent applied to and obtained from the attorney for the appellants a stipulation giving them 20 days' additional time in which to file a reply brief, and thereafter applied to and obtained from a justice of this court an additional time of 20 days in which to prepare, file, and serve said brief, without making any reservation of right to move against the appeal. Their action in this regard, and their failure to promptly move for a dismissal of the appeal, constitute a waiver of objection to all errors, irregularities, or omissions in the appeal taken not amounting to a jurisdictional defect. Miller v. Walser, 42 Nev. 497,181 P. 437. There are none of this latter character complained of, except that the bills of exceptions were not filed and served within 20 days after the decision on motion for a new trial was made, as required by section 1 of said act.

4, 5. Section 10 of an act relating to bills of exceptions (Stats. 1915, c. 142, as amended by Stats. 1919, p. 55) is in pari materia with the act of 1923, supra, and by virtue thereof the time allowed after decision on motion for a new trial for filing and serving a bill of exceptions "may be enlarged upon good cause shown by the court, any justice of the supreme court, judge, referee, or judicial official, or by stipulation of the parties." It appears, as we have heretofore stated, that the reporter's transcript was filed October 16, 1923, and it was served on that date. It further appears from the affidavit of counsel for appellant, filed and admitted on the hearing of the motion to dismiss, that, before the time allowed by statute to file and serve a bill of exceptions had expired, counsel for respondent entered into a written stipulation with the former, giving appellants to and including the 20th day of October, 1923, in which to file and serve their bill of exceptions to the order of the court denying their motion for a new trial in the action, and that the time allowed by statute be extended accordingly. This was sufficient to give the lower court jurisdiction to settle and allow the bills of exceptions in this case.

The motion to dismiss and strike must be denied.

It is so ordered.

ON THE MERITS March 9, 1925. 233 P. 844.