East Standard Mining Co. v. Devine , 59 Nev. 134 ( 1938 )

ON MOTIONS TO DISMISS APPEALS [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] OPINION Respondent, as plaintiff in civil action No. 3,470 in the Sixth judicial district court, Humboldt County, recovered a money judgment against appellant, defendant in said district court, on the 17th day of March 1938. Notice of appeal was filed and served on March 21, and on the same day appellant also filed an "undertaking on appeal," which was intended to be also an undertaking to stay execution. On April 1 following, a motion for an order staying execution was heard by said district court. This motion was opposed by respondent upon the ground, among others, that the said undertaking filed on March 21 was "defective for the purpose of staying said execution." The record does not show that any action was taken by the court on said motion, but on said first day of April defendant filed with the clerk of said district court a dismissal, without prejudice, of the said appeal taken on March 21. No order dismissing said appeal was made by the district court, nor was any application made to said court for such an order.

On said first day of April, appellant served and filed a new notice of appeal, and on the same day also filed a new undertaking on appeal, including an undertaking for stay of execution. On the same day the district court ordered that the execution of the judgment be stayed.

No contention or suggestion has been made by either party that the first notice of appeal was defective or that it was not served or filed within the time or manner prescribed by the statute; nor is it claimed by either party that the first undertaking on appeal was in any way insufficient as an appeal bond, or that it was not filed within the time limited in the statute. No exception was taken to the sufficiency of the sureties on the first appeal bond, and the time for so excepting had expired before April 1.

Transcript of the record on appeal was not filed with the clerk of this court until April 30. Rule II of the rules of this court provides that: "The transcript of the record on appeal shall be filed within thirty days after the appeal has been perfected, and the bill of exceptions, if there be one, has been settled."

1. Respondent has moved this court to dismiss both appeals. He contends that if appellant could abandon the first appeal at all, such abandonment could be effected only by court order, or with his consent. As no court order was made or applied for, nor respondent's consent given to any dismissal or abandonment of the first appeal, there was, respondent argues, a valid and perfected appeal pending when appellant attempted to take a second appeal, and said attempt was therefore a nullity, and the second appeal should be dismissed. While the transcript of the record on appeal was filed in this court within thirty days after the second attempted appeal had been perfected, it was filed more than thirty days after the first appeal was perfected; and as no good cause has been shown for appellant's failure to comply with said supreme court rule II, this court should, as respondent contends, also grant his motion to dismiss the first appeal.

2. A number of California and Oregon decisions tend to support respondent's position with reference to the second appeal. Hill v. Finnigan, 54 Cal. 311; Brown v. Plummer, 70 Cal. 337,11 P. 631; Schmeer v. Schmeer, 16 Or. 243, 17 P. 864; McCarty v. Wintler, 17 Or. 391, 21 P. 195; Little Nestucca Wagon-Road Co. v. Landingham, 24 Or. 439, 33 P. 983; Hill v. Lewis, 87 Or. 239, 170 P. 316. But the better rule, in our opinion, is that declared in Sharp v. Brown, 37 Idaho 582,217 P. 593. In that case the court said, in part: "Respondent argues that after the first appeal was perfected a second appeal could not be taken because the trial court was ousted of jurisdiction, citing Richardson v. Bohney, 18 Idaho 328, 109 P. 727; Hill v. Finnigan, 54 Cal. 311; Brown v. Plummer, 70 Cal. 337, 11 P. 631, and other cases. The following statement of the California court in the case of Brown v. Plummer, supra, fairly represents the view of the courts so holding: ``Where there is a good and valid appeal from a judgment of the superior court pending in the Supreme Court, a second appeal from the same judgment is a nullity, for the reason that after the taking of the first appeal there would be nothing in the court below from which another appeal could be taken.' We think this position is due to an erroneous view as to the effect of an appeal. While an appeal undoubtedly divests the court of jurisdiction to proceed in any manner that would affect the merits of the appeal, it does not follow that ``there would be nothing in the court below from which an appeal could be taken.' At most, the effect of the judgment or order appealed from is only suspended, and in certain cases recognized by C.S. sec. 7155, and other sections of the Idaho Compiled Statutes, a mere appeal does not stay an execution of the judgment appealed from. These statutory provisions completely refute the contention that simply taking an appeal wholly removes the case from the trial court. * * * Whether the first appeal was good or not, respondent has suffered no injury by the second, and if the first was in fact valid and the second had been taken in good faith, under the mistaken impression that the first was not valid, we think only a technical construction of the law would require us to hold that the second must be dismissed because the first, now lapsed or abandoned, was valid when the second was taken. * * * If a valid appeal is in existence when the second is taken, and remains effective so that at the time a motion to dismiss is presented there are two identical appeals before the court, of course the second confers no benefit on appellant nor jurisdiction on the court not already possessed under the first, and therefore it should be dismissed. But if the first appeal, even though valid at the time the second was taken, is thereafter abandoned or allowed to lapse, if the second has been taken in good faith and within the statutory time, and respondent is not prejudiced thereby, such second appeal will not be dismissed on the ground that a valid appeal was pending at the time the second was taken." Sec. 17 of the Nevada new trials and appeals act, Stats. of Nevada 1937, chap. 32, p. 53, at page 58, corresponds to Idaho C.S. sec. 7155 mentioned in the foregoing excerpt from Sharp v. Brown.

See, also, the following: Pilkington v. Potwin, 163 Iowa 86,144 N.W. 39; Jenney v. Walker, 80 Ohio St. 100, 88 N.E. 123; Groendyke v. Musgrave, 123 Iowa 535, 99 N.W. 144.

If there were anything in the record showing bad faith on the part of appellant, or prejudice or injury to the respondent, we would feel more disposed to grant both of respondent's motions.

The motion to dismiss the first appeal is granted; the motion to dismiss the second appeal is denied.

Costs are awarded to appellant.