Magee v. Whitacre , 60 Nev. 202 ( 1939 )

ON MOTIONS TO DISMISS APPEALS AND MOTION TO STRIKE OPINION This case is before us on motions to dismiss the appeals from the judgment and from an order denying plaintiff's motion for a new trial, and to strike certain portions of the record on appeal.

The case was submitted to the trial court on briefs. Thereafter, on the 14th day of April 1938 the district court rendered a written decision, which was filed on the 16th day of April 1938. The notice of appeal from the judgment was signed September 23, 1938, and filed September 26, 1938.

Intervening defendant and respondent moves the dismissal of the appeal from the judgment, on the ground that it was not taken within six months after rendition of final judgment, as required by section 9385.60, Comp. Laws, which reads, in part:

"An appeal may be taken:

"1. From a final judgment in an action or proceeding commenced in the court in which the judgment is rendered, within six months after the rendition of the judgment."

1. The law of this state is settled that the six months' time mentioned in the statute runs from the rendition of the decision of the court, not from the time of the filing of the formal findings and formal judgment. Central Trust Co. v. Holmes Mining Co., 30 Nev. 437, 97 P. 390; Mellan v. Messenger, 48 Nev. 235,228 P. 1095; Ex Parte Breckenridge, 34 Nev. 275, 280,118 P. 687, Ann. Cas. 1914D, 871; Coleman v. Moore McIntosh, 49 Nev. 139,241 P. 217; First National Bank v. Fallon et al., 55 Nev. 102,26 P.2d 232.

If the decision filed by the court on April 16, 1938, constitutes a final judgment, then the attempted appeal taken therefrom was too late, being more than six months after its rendition.

Appellants urge that the said decision of the trial court did not constitute a final judgment, in that it left something to be done and for the future consideration of the court in order to fully dispose of the issues and rights of the parties. Appellants urge two propositions as not having been disposed of; first, that the trial court in its decision failed to determine the constitutionality of section 29 1/2 of the Nevada irrigation district act, sec. 8042 N.C.L.; and, secondly, that the trial court in said decision failed to determine the costs.

As to the first proposition we cannot agree with appellant. In our opinion that question was determined by the trial court adversely to the contention made by appellants in said court, and said court found said section constitutional.

2, 3. As to the second proposition, the trial court did not make an order relative to the costs until the filing of the formal findings and formal judgment, on the 26th day of September 1938, and no mention thereof was made in the decision of April 14, 1938. This is an action in equity, and is clearly one in which the court is vested with discretion in the assessment of costs, under section 8927 N.C.L. The case of Perkins v. Sierra Nevada S.M. Co., 10 Nev. 405, 410, gives the following definition of a final judgment: "A judgment or decree is final that disposes of the issues presented in the case, determines the costs, and leaves nothing for the future consideration of the court." This definition is cited with approval by this court in the case of Nevada First National Bank v. Lamb, 51 Nev. 162, 271 P. 691.

4. Reading the decision of the trial court in the light of the above definition, we find missing one of the essentials, namely, it fails to determine the costs; hence to that extent it is not final, and such determination not having been made until September 23, 1938, final judgment was not entered until said date, and appellants had six months therefrom in which to appeal. The appeal from the judgment was timely, and the motion to dismiss said appeal is denied.

5. In the motion of intervening defendant and respondent to dismiss the appeal from the order denying plaintiff's motion for a new trial, several grounds are urged. We need consider but one, namely, that there was no undertaking given on said appeal. Under the law of this state where an appeal is taken from a judgment and from an order denying a motion for a new trial, but one undertaking in the sum of $300 need be given. However, said undertaking must refer to both appeals. The undertaking filed herein refers to the judgment rendered September 23, 1938, and makes no reference to the appeal from the order denying plaintiff's motion for a new trial. This exact question has been decided many times in the State of California, and the same rule has been established in North Dakota, Idaho, and Montana. The rule as announced in California is stated in the case of Granger v. Robinson, 114 Cal. 631,46 P. 604. After affirming the rule that one undertaking may be given for both appeals, the court states: "It is, however, necessary that the undertaking shall refer to each of the appeals as distinctly as if they were from separate orders requiring an undertaking for each. If the undertaking recites merely the appeal from the judgment, the appeal from the order denying a new trial will be dismissed."

See, also, Berniaud v. Beecher, 74 Cal. 617, 16 P. 510; Crew v. Diller et al., 86 Cal. 554, 25 P. 66; Pacific Paving Co. v. Bolton et al., 89 Cal. 154, 26 P. 650; Dodge v. Kimple, 121 Cal. 580,54 P. 94; Buchner v. Malloy, 152 Cal. 484, 92 P. 1029; Little v. Thatcher, 151 Cal. 558, 91 P. 321; Schurtz v. Romer,81 Cal. 244, 22 P. 657; Hedderich v. Hedderich, 18 N.D. 488,123 N.W. 276; Hurley v. O'Neill, 24 Mont. 293, 61 P. 658.

The supreme court of the State of Idaho, in the case of Baker v. Oregon R. Navigation Co., 8 Idaho 36, 66 P. 806, dismissed an appeal in which the undertaking recited both the appeal from final judgment and the appeal from the order denying the motion for a new trial, because the undertaking merely recited the singular in that portion of the undertaking wherein the sureties bound themselves. The Idaho court declared such a statement to be so ambiguous that it could not be enforced. 6. The appeal from the order denying the motion for a new trial is dismissed.

7-11. Intervening defendant and respondent moves to strike certain parts of the record for the reason they form no part of the judgment roll. Section 8829 N.C.L. provides what shall constitute the judgment roll in civil cases. The first instrument to which the motion is directed is the affidavit of Homer Mooney, appearing on pages 131 and 132. This constitutes the proof of service of the notice of appeal. Such an instrument is not made a part of the judgment roll by section 8829, supra, nor is it required to be annexed thereto by section 9385.88 N.C.L. It is ordered stricken. The second is the affidavit appearing on page 126, volume 1, of the record on appeal, which is an affidavit for change of judge. This has no place in the judgment roll, and is ordered stricken. Third, the appeal and notice of appeal, on page 130, volume 1. These papers may properly be said to be annexed to the judgment roll, which is proper and is authorized by section 9385.88 N.C.L. As to these, the motion is denied. Fourth, it is asked that certain portions of the clerk's certificate, insofar as it incorporates matters not a part of the judgment roll as defined by law, be stricken. The papers referred to are not pointed out in the motion; it is too general, and is therefore denied. Lovelock Lands v. Lovelock L. D. Co., 54 Nev. 1, at page 5, 2 P.2d 126, 7 P.2d 593, 12 P.2d 339. The fifth ground refers to the motion appearing on pages 4 and 5 of volume 1 of the record on appeal. This instrument has no place in the judgment roll, nor is it required to be annexed thereto in an appeal from the judgment. It is ordered stricken. The sixth ground refers to the motion appearing on pages 19 to 21. This is a motion to strike, and is not one of the papers required to be placed in the judgment roll or appended thereto, and as to it the motion is granted. The seventh ground is addressed to the motion appearing on pages 104 to 111 of volume 1 of the record. This is a motion to make more definite and certain, and not being one of the papers required to be incorporated in the judgment roll or appended thereto on appeal, it is ordered stricken. Ground number eight refers to the stipulation appearing on pages 2 and 3 of volume 1; it is ordered stricken, for the reasons heretofore given.

Intervening defendant and respondent further asks that the bill of exceptions be stricken. This is denied. If reasons exist why this court cannot consider the bill of exceptions on the appeal from the judgment, respondents may present them in their briefs on said appeal.

The motion to strike the remaining portions of the file, upon the ground that there is no valid appeal from the judgment, is denied.