G. M. GARDNER, Respondent, v. PACIFIC POWER COMPANY (a Corporation), Appellant
Gardner v. Pacific Power Co.
G. M. GARDNER, Respondent, v. PACIFIC POWER COMPANY (a Corporation), Appellant.
No. 2269]
G. M. GARDNER, Respondent, v. PACIFIC POWER COMPANY (a Corporation), Appellant.
[163 Pac. 731]
1. Appeal and Error — Assignment of Errors — Late Filing — Striking.
Motion to strike assignment of errors, not filed in tlie time prescribed by Stats. 1915, e. 142, sec. 13, and no memorandum of errors being served on respondent pursuant to Rev. Laws, 5322, is well taken.
2. Appeal and Error — Briefs—Affirmance.
Motion to' affirm, copy of transcript of record not being served on respondent, as required by Supreme Court Rule 25, par. 3, and appellant’s points and authorities or brief not being filed and served in the time provided by Rule 11, is well taken.
Appeal from Eighth Judicial District Court, Churchill County; T. C. Hart, Judge.
Action by G. M. Gardner against the Pacific Power Company. From an adverse order, defendant appeals.
Assignment of errors stricken, and order affirmed.
Geo. A. Bartlett and Geo. B. Thatcher, for Appellant.
B. F. Curler and A. L. Haight, for Respondent:
Pursuant to notice duly given, respondent asks this court for an order to strike out the purported assignment of errors. Said assignment, as a whole, is not properly before this court, and should be stricken. (Stats. 1915, p. 166; Rev. Laws, 5322, 5330.)
Respondent also asks for an order affirming the order of the district court denying the motion of defendant for a new trial, and affirming the judgment of the district court. Appellant failed to serve and file its brief, or to serve a copy of the transcript of the record, within the prescribed time, or at all. For failure of appellant to file brief, the judgment of the district court should be affirmed. (Mathewson v. Boyle, 16 Pac. 434.) By the terms of subd. 3, rule 25, of this court, the appellant is required to serve a copy of the transcript of the record upon each opposite party who appeared separately in the court below. " If appellant fails to serve a copy of the record or other papers within the time and in the manner required, his appeal will ordinarily be dismissed on motion as a penalty for the delay, or the judgment may be affirmed as to a party not served. ” (4 C. J. 482.)
By the Court,
Coleman, J.:
This is an appeal from an order denying a motion for a new trial.
1. The appeal was taken April 25, 1916. On June 24, 1916, appellant filed with the clerk of this court its assignment of errors; but, so far as appears of record, no service thereof was made upon the adverse party. Respondent, in apt time, moved to strike out the assignments of errors, upon two grounds: First, for the reason that it was not filed within the time provided by section 13, c. 142, p. 166, Statutes of 1915; and, second, for the reason that no memorandum of errors was served upon the respondent in the action, as required by section 5322 of the Revised Laws.
2. Respondent also, in apt time, made a motion that the order appealed from be affirmed for the reasons: First, that a copy of the transcript of the record was not served upon the respondent in the action, or upon his attorney, as required by paragraph 3 of rule 25 of this court; and, second, that appellant did not file and serve his points and authorities, or brief, within the time provided by rule 11 of this court.
Counsel for respondent filed his brief in support of his said motions, and time was allowed counsel for appellant in which to file his brief in reply thereto, and the matter was set down for oral argument. At the time set for the oral argument of the motions mentioned, counsel for the respondent appeared. No appearance was made for appellant. Counsel for respondent called the court's attention to the fact that no brief had been filed by counsel for appellant, and urged that the case stand submitted on his motions and brief; and, no good cause appearing why such should not be the order, an order was entered accordingly.
We are of the opinion that the motions are well taken. Neither of the requirements mentioned was complied with by appellant. We do not deem it necessary to enter upon a discussion of the case. The court-has in numerous instances affirmed judgments for failure to comply with the rules of the court in regard to the filing of briefs. (McLeod v. Lee, 14 Nev. 103, 28 Pac. 124; Goodhue v. Shedd, 17 Nev. 140, 30 Pac. 695; Mathewson v. Boyle, 20 Nev. 88, 16 Pac. 434; State v. Myatt, 10 Nev. 163; Linnville v. Clark, 30 Nev. 113, 93 Pac. 231; 2 Cyc. 1023.)
It is ordered that the assignment of errors filed herein be stricken from the files, and that the order appealed from be affirmed.