DocketNumber: No. 3425
Citation Numbers: 63 Nev. 19, 158 P.2d 545
Judges: Ducker
Filed Date: 5/4/1945
Status: Precedential
Modified Date: 9/9/2022
OPINION
By the Court,
This case is before us on motions to dismiss the appeal from an order fixing fees, and to strike certain portions of the record on appeal, as well as the record in its entirety. The motion to dismiss was made on the grounds following:
(1) That no notice of appeal was served upon the said George A. Montrose, as administrator of said estate, and/or upon George L. Sanford, or upon John R. Ross, his attorneys, within three days after filing of said notice of appeal with the clerk of the First judicial district court of the State of Nevada in and for the county of Lyon, in which the order was made.
(2) That more than thirty days elapsed between the filing of the notice of appeal and undertaking for costs on appeal in the lower court, and the filing of appellant’s transcript on appeal with the clerk of said court.
(3) That more than twenty days have elapsed since
As we think that the appeal must be dismissed on the first ground, we need not consider the second and third, or the motions to strike. Sec. 9385.61, N. C. L. Supp. provides:
“An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a written notice stating the appeal from the same or some specific part thereof, and within three days thereafter serving a similar written notice or copy thereof on the adverse party or his attorney; * *
Service of the notice of appeal within the prescribed time is mandatory and jurisdictional. Johns Manville Inc. v. Lander County, 48 Nev. 244, 247, 229 P. 387, 234 P. 518; Cunningham v. Cunningham, 60 Nev. 191, 102 P. 2d 94, 105 P. 2d 398.
It appears from the affidavit of the clerk of the lower court that written notice of appeal was filed in his office on August 12, 1944. It is conceded that no notice of appeal was served on the administrator of the estate. But appellant contends that such service was made by mail under the provisions of sec. 8920, N. C. L., and in apt time, upon George L. Sanford and John R. Ross, attorneys for the administrator. His proof of that service is by his affidavit appearing in the record sent up, and by his affidavit filed here in opposition to the motion to dismiss. In the former affidavit made on October 25, 1944, he avers that on the 14th day of August 1944 he served a true and correct copy of the notice of appeal upon the attorneys for the administrator, John R. Ross and George L. Sanford, by enclosing the same in a separate sealed envelope addressed to each of them at his office in Carson City, Nevada, and by depositing said envelopes, postage fully prepaid, on said 14th day of August 1944 in the United States Post Office at Reno, Washoe County, Nevada. He avers that on said date at
In his affidavit made in opposition to the motion to dismiss, and to the affidavits in support of that motion, appellant reiterates that he served the notice of appeal as set forth in the affidavit of service contained in the transcript of appeal. He avers that having no information or belief upon the matters set forth in the affidavit of the Reno postmaster, denies all thereof, and alleges that said affidavit is not based upon fact but supposition alone. On information and belief he avers that the copies of notice of appeal referred to in the joint affidavit of Ross and Sanford were received by them prior to the time stated in their affidavit and were delivered in the regular course of the mail. He further avers that after mailing said notices of appeal and on or about the 16th day of August 1944 he wrote a letter to said George L. Sanford and John R. Ross and mailed the original of said letter to said George L. Sanford, addressed to him at Carson City, Nevada, and mailed the copy of said letter to said John R. Ross, addressed to him at Carson City, Nevada, each to their respective office address, requesting a copy of the court order made on June 14, 1944, and on information and belief avers that these are the envelopes referred to in their affidavit.
A question of fact is thus presented as to whether the notice of appeal filed with the clerk of the court on August 12, 1944, was duly served within the three days required by said section 9385.61.
If appellant served a copy of notice of appeal on the
When as here, two letters written by the same individual, bear a postmark of the same date, the circumstances become stronger because the chance that both were overlooked and not stamped in the post office until a later date than their deposit, becomes less likely. That two such letters were not noticed from the time of their deposit, as claimed on the 14th of August, until the
In reaching the conclusion that the preponderance of the evidence is against our jurisdiction, we have also weighed appellant’s affidavit in connection with the fact that his integrity as an attorney at law has been recently impeached by the board of governors of the state bar and the supreme court of California, for dealings with clients, which resulted in his suspension from the practice of law in that state for three years and three months. In re Copren, Cal. 152 P. 2d 729.
The appeal is hereby dismissed. .