Rosenthal v. Rosenthal

By the Court,

McCarran, J.:

The notice of appeal filed in this case states that it is an appeal from the final judgment and from an order refusing a continuance. Respondent has moved to dismiss the appeal, upon the ground that there is no record before this court, as required by the statutes of Nevada and the rules of the court.

It appears from the record that, prior to the trial of the cause, defendant in the court below, appellant herein, moved the court for a continuance for the purpose of procuring the depositions of witnesses. The motion for continuance being denied by the court, the cause proceeded to trial and final judgment, in which a decree of divorce was issued. In this case appellant appears here without bill of exceptions or statement on appeal.

1. An order of the trial court in allowing or dismissing the motion for continuance is not of itself an appealable order, and can be reviewed only on appeal from the final judgment. (Rev. Laws, 5329; Whitefoot v. Leffingwell, 90 Wis. 182, 63 N. W. 82; Jaffray v. Thompson, 65 Iowa, 323, 21 N. W. 659; Shearouse v. Smith, 83 Ga. 520, 11 S. E. 560; State v. Ducker, 35 Nev. 214, 127 Pac. 990; Haraszthy v. Horton, 46 Cal. 545.)

2. In the case of State v. Wallin, 6 Nev. 280, this court held that where there was no bill of exceptions, and no statement on appeal, and the affidavits in support of the motion for continuance were not properly in the transcript, the alleged error of the trial court in refusing a continuance could not be considered by this court. In the case of State v. Preston, 30 Nev. 307, 95 Pac. 920, this court said:

"The supreme court of this state, to be clothed with jurisdiction to adjudicate whatever questions are properly raised by an appeal from an inferior court, must be connected with the proceedings had in the lower court substantially in the manner required by the statutes regulating appeals; otherwise, this court acquires no jurisdiction. ' If any of these essential links required by mandatory statutes and necessary to give this court jurisdiction are lacking, the attempted appeal confers no jurisdiction on this court, and the proceedings must be dismissed. ”

It has been repeatedly held by this court that, in the absence of a statement on appeal or bill of exceptions, this court is confined to a consideration of the judgment roll alone. (Werner v. Babcock, 34 Nev. 42, 116 Pac. 357, and cases there referred to.)

3. We are referred by appellant to certain sections of the civil practice act, to wit, sections 5339 and 5356, Rev. Laws:

"Sec. 5339. The provisions of the last preceding section shall not apply to appeals taken from an order made upon affidavit filed, but a certified copy of such affidavit and counter affidavit, if any, shall be annexed to the order, in the place of the statement on appeal mentioned in that section.”

"Sec. 5356. * * * On an appeal from an order, the appellant shall furnish the court with a copy of the notice of appeal, the order appealed from, and a copy of the papers used on the hearing in the court below, and a statement if there be one, such copies to be certified in like manner to be correct. * * * If the appellant fails to furnish the requisite papers, the appeal may be dismissed.”

In our judgment, the sections of the statute here cited apply to appealable orders. To say that an appeal might be taken from every order made by a court during the pendency of an action would be to give sanction to a multiplicity of appeals growing out of a single litigation, attended as such a course would be by expense and inestimable delay. A modern and very reliable commentary puts it that:

"Judgments and orders from which an appeal will lie are those which either terminate the action or operate to divest some right in such a manner as to put it out of the power of the court making the order to place the parties in their original condition after the expiration of the term.” (2 R. C. L. 22.)

In the same work we find it stated:

"An order granting or refusing a continuance is, of course, in no way final, and it may safely be stated that such an order is not reviewable on appeal or writ of error before final judgment.” (2 R. C. L. 30.)

If further authority were necessary to support the proposition that an order granting or refusing a continuance is not, as a general rule, appealable, it would be only necessary to cite the decisions of the courts of. many states set forth in support of that rule in a very recent publication. (3 Corpus Juris, p. 473, sec. 295.) We recognize, without comment here, that this rule may be subject to exception, and has been so held in cases where the rights of the parties would be permanently affected. (Humburg v. Namura, 13 Hawaii, 702.)

We are referred by appellant to the case of Beatty v. Sylvester, 3 Nev. 228, in support of his contention that it was not necessary to bring the appeal from the order to this court either by a bill of exceptions or statement on motion for a new trial. It will be observed, however, that in the case cited the error complained of was brought to this court by way of bill of exceptions, and the method of appeal was not attacked. The decision of this court in the case of Weinrich v. Porteus, 12 Nev. 102, if applicable at all, could only be so in the event that the order appealed from was in fact an appealable order, one specifically recognized as such by statute or by rule; and, as we have already stated, an order denying a motion for a continuance does not come within this class. The case of Thompson v. Bank, 19 Nev. 293, 9 Pac. 883, is not in point. The case of Smith v. Wells Estate Co., 29 Nev. 411, 91 Pac. 315, if applicable at all, supports the position that we take here.

4. The order of the trial court denying the appellant’s motion for continuance not being an order from which a direct appeal could be taken, it is our judgment that the action of the trial court in this respect could only be reviewed by this court when brought here by one of the avenues prescribed by the statute; i. e., by appeal from the judgment or order refusing a new trial, or by bill of exceptions properly allowed by the trial court. There being no bill of exceptions or statement on appeal in the record presented to this court, and the statute permitting no direct appeal from an order denying a motion for continuance, the direct appeal here attempted from the order must be dismissed.

On an appeal from the judgment alone, without statement or bill of exceptions, this court can only consider the record constituting the judgment roll. (Peers v. Reed, 23 Nev. 404, 48 Pac. 897; Werner v. Babcock, supra; Western Eng. & Const. Co. v. Nevada Amusement Co., 33 Nev. 203, 110 Pac. 1129.) No error is contended for as existing in the judgment roll.'

The judgment should be affirmed. It is so ordered.