Quinn v. Quinn , 53 Nev. 68 ( 1930 )

OPINION The respondent made concurrently several motions in this case. One is to require the appellant to complete the transcript of the testimony taken in the case so as to include matter alleged not to have been embraced in the bill of exceptions, and to embody in the record all the pleadings. This motion is based upon the contention that the record on appeal does not fully or accurately state the proceedings.

Counsel also move to strike from the files the bill of exceptions on file, together with the transcript of the record on appeal and all other papers except the judgment roll, for the reason that appellant did not serve upon respondent a completed record within the time allowed by law, and for the further reason that the appeal was not perfected in accordance with the provisions of the statutes.

Counsel also move to dismiss the appeal and for an order affirming the judgment, for the reason that appellant did not, pursuant to statute, file or serve upon respondent a completed record on appeal, and for the further reason that the appeal was not perfected in accordance with the provisions of the statutes.

The purported record on appeal consists of two volumes, one containing the judgment roll and the other a purported bill of exceptions signed by the trial judge. 1, 2. In the recent opinion of Peri v. Jeffers, 53 Nev. 49,292 P. 1, we held that the motion to dismiss was too general. We think the same may be said of both the motion to strike and the motion to affirm the judgment in this case. The opposing party, as well as this court, is entitled to have the grounds of such motion specified.

3. Upon the argument of this matter, counsel for respondent insisted that the appeal should be dismissed because the notice of appeal and undertaking on appeal were not brought up with the record, as required by law; whereupon counsel for appellant made a motion for a diminution of the record, supported by affidavit, so as to have these documents certified up, which application should be granted.

4. The method of bringing up for review all orders, papers, and proceedings, other than those constituting the judgment roll proper, is by having them embodied in a bill of exceptions. Chessman v. Hillhouse, 53 Nev. 21, 291 P. 704. The manner of settling a bill of exceptions is pointed out in chapter 97, Stats. 1923. But, if the trial judge refuses to settle a bill of exceptions according to the facts, the aggrieved party is not without recourse. Section 5316, Rev. Laws, provides:

"* * * If the judge shall in any case refuse to allow an exception in accordance with the facts, any party aggrieved thereby may petition the supreme court for leave to prove the same, and shall have the right so to do, in such mode and manner and according to such regulations as the supreme court may prescribe, or by rules impose, and such exceptions as are allowed by said supreme court shall become a part of the record of the case."

This section was alluded to in Miller v. Miller, 36 Nev. 115,134 P. 100.

5. It was held in State v. Warren, 18 Nev. 459, 5 P. 134, that this court is without authority to correct, add to, or amend a bill of exceptions unless authorized so to do by statute.

It is ordered that the various motions of respondent be denied, and that the motion of appellant for a diminution of the record so as to bring up the undertaking on appeal and the notice of appeal be granted.

ON MOTION TO DISMISS THE APPEAL AND TO AFFIRM THE JUDGMENT February 27, 1931. 295 P. 1111.