DORA DEAN RICKEY, FRANCES VIVIAN RICKEY, CELIA EVALINA RICKEY, MILDRED GENEVIEVE THOMAS, and DORA DEAN RICKEY, as Guardian Ad Litem of Verona Angelica Rickey, a Minor, Respondents, v. DOUGLAS MILLING AND POWER COMPANY (a Corporation), Appellant
Rickey v. Douglas Milling & Power Co.
DORA DEAN RICKEY, FRANCES VIVIAN RICKEY, CELIA EVALINA RICKEY, MILDRED GENEVIEVE THOMAS, and DORA DEAN RICKEY, as Guardian Ad Litem of Verona Angelica Rickey, a Minor, Respondents, v. DOUGLAS MILLING AND POWER COMPANY (a Corporation), Appellant.
[No. 2507]
DORA DEAN RICKEY, FRANCES VIVIAN RICKEY, CELIA EVALINA RICKEY, MILDRED GENEVIEVE THOMAS, and DORA DEAN RICKEY, as Guardian Ad Litem of Verona Angelica Rickey, a Minor, Respondents, v. DOUGLAS MILLING AND POWER COMPANY (a Corporation), Appellant.
[204 Pac. 504; 205 Pac. 328]
1. Appeal and Error — Judgment Roll and Transcript of Trial Proceedings Not Sufficient Statement unless Settled under Old Practice.
A purported statement on appeal, consisting of two volumes, one containing tile judgment roll and other papers, which was certified by the clerk, and the other containing the proceedings at the trial certified by the reporter, cannot be considered a statement on appeal, since neither has been settled nor agreed upon as required by the old practice concerning statements on appeal.
2. Exceptions, Bill of — Must Be Settled by Judge or by Stipulation.
A volume containing a transcript of the proceedings had at the trial, certified by the reporter, cannot be considered as a bill of exceptions where it was not settled or allowed by the judge or the court, or by stipulation of the parties .as required by law.
3.Exceptions, P>ill of — Purported Bill Not Containing Evidence, and Not Certified, Held Insufficient.
Documents designated bills of exceptions, signed and verified by the attorneys for appellant, and purporting to contain objections and exceptions at the trial, but not containing the evidence, and not settled or approved by the trial judge or court, or by stipulation of the parties, did not form a bill of exceptions.
■ 4. Appeal and Error — Denial of New Trial Not Review able without Bill of Exceptions.
Where there is no hill of exceptions In the record, an order denying a motion for new trial cannot be reviewed on the .merits, and an appeal from such order will he dismissed.
ON PETITION FOR REHEARING
1. Appeal and Error — Dismissal for Want of Proper Certificate to Bill of Exceptions Is Not Technical.
The dismissal of an appeal and affirmance of the judgment below because the bill of exceptions was not authenticated by a certificate of the trial court or judge or by a stipulation of the parties, as required by act of March l(i, .1915 (Stats. 1915, e. 142), sec. 5, is not based upon a technicality, but was due to failure to comply with mandatory provision of law.
2. Appeal and Error — General Allegations in Petition for Rehearing that Decision Violated Constitutional Provisions Can Be Disregarded.
General allegations in the petition for rehearing that the decision of the supreme court deprives appellant of its property, without -due process at law, that it is contrary to the law of the land and to the United States Constitution, without pointing out wherein the decision would have the effect alleged, can he ignored on account of their generality.
3. Appeal and Error — Brief 'Cannot Be Filed on Petition for Rehearing.
Under supreme court rule 15 no brief can be filed in support of a petition for rehearing, nor is any argument, except such as may he contained in the petition and reply thereto, permissible.
4. Appeal and Error — Rehearing Cannot Be Granted on Contention Not Urged in Original Hearing.
A point which was not urged at the original hearing in the supreme court either in the brief or in the oral argument does not entitle the appellant to a rehearing.
5. Appeal and Error — Legislature Can Regulate Mode of Exercising Constitutional Right of Appeal.
The constitutional right of appeal, based upon the provision conferring appellate jurisdiction oil the supreme court, may he regulated by the legislature as to the time and manner of talcing an appeal, so long as the regulations do not unreasonably restrict the right.
(i. Exceptions, Bii.i, oe — Act Regulating Allowance oe Bill of Exceptions Does Not Unreasonably Restrict Right oe Appeal.
Tlio statute requiring a bill of exceptions to be allowed by the court in which the action was tried, or by the judge, or by agreement of the parties, is not an unreasonable restriction of the right of appeal, but is a salutary requirement, calculated to acquaint the appellate court with the true status of the controverted questions.
Appeal from First Judicial District Court, Douglas County; Frank P. Lang an, Judge.
Action by Dora Dean Rickey and others against the Douglas Milling and Power Company. Judgment for the plaintiffs, and defendant appeals from the judgment, and from an order denying its motion for new trial.
Appeal from the order denying the motion for new trial dismissed, and judgment affirmed. Petition for rehearing denied.
Geo. A. Montrose and A. Grant Miller, for Appellant:
All papers and documents in the case are before the court. They are contained in two volumes. One consists of the judgment roll, bills of exception filed in the court below, and decision on motion for a new trial; the other contains the duly certified transcript of the official reporter. There is also on file the assignment of errors. All things necessary have been done in the perfection of the appeal.
The fundamental principles of justice require that every citizen be heard in the courts of law upon the merits of his controversy. All statutes regulating procedure should be interpreted from that view-point. State v. Haight, 91 N. W. 93; State v. Stimpson, 62 Atl. 14; Holden v. Hardy, 169 U. S. 366; Twining v. New Jersey, 211 U. S. 78.
The people have never delegated to either the state or the federal government the power to deprive a person of his property without due process of law. Paulsen v. Portland, 19 Pac. 450; State v. Haight, supra; Ulman v. Baltimore, 28 Atl. 141. Not everything that passes under the form of statutory enactment can be considered the law of the land. Martin v. Dick, 24 Am. Rep. 661. A state cannot make everything due process of law which by its own legislation it declares to be such. ' Burdect v. People, 36 N. W. 948.
The act of 1915 (Stats. 1915, p. 164) did not in terms repeal the method formerly in practice of taking an appeal. In determining the intent of the legislature no implication' should be drawn that is contrary to The principles of fundamental justice.
“We find, however, a transcript of the whole testimony and all of the proceedings at the trial, with the exceptions takén at the trial, duly certified by the trial judge. This constitutes a sufficient bill of exceptions to bring the testimony before this court.” Stark v. Commission, 204 Pac. 151.
Platt & Sanford, for Respondents :
The bill of exceptions and the statement on appeal, not being in accordance with the statute, should be stricken from the files and the appeal dismissed. Stats. 1915, p. 164. “The act specifies with much particularity how and when exceptions may be taken, how they may become a part of the record, how to be prepared and served, and what may be included therein to be reviewable on appeal from the judgment or order denying the motion for a new trial. * * * This court has repeatedly held that, where the method of appeal is prescribed by the statute, it must be followed.” Gill v. Goldfield Con. M. Co., 176 Pac. 784.
The memorandum of errors filed in the lower court before the submission of the motion for new trial may not serve the function of a bill of exceptions. Ward v. Silver Peak, 39 Nev. 89.
. “The failure of appellants to bring up the errors based upon any ground for new trial by a statement or bill of exceptions has deprived them of the right to have their case considered upon its merits.” Mexican D. & D. Co. v. Schultz, 201 Pac. 548.
By the Court,
DUCKER, J.:
This is an appeal from a judgment and from an order denying a motion for a new trial. Respondents moved to dismiss the appeal from the order, upon the grounds set out in their notice of motion. Briefly stated, these grounds are as follows: That there is on file in this cause no statement on appeal or bill of exceptions properly settled, allowed, approved, or certified to be correct by the judge of the court in which the action was tried or by the court, as required by law. Respondents also moved to strike the purported statement on appeal and bill of exceptions, on the same grounds.
What appellant contends is a sufficient record in this case upon which its appeal from the judgment and order denying its. motion for a new trial can be maintained consists of two volumes, labeled, respectively, "Statement on Appeal." Volume 1 is certified by the clerk of the court in which the action was tried, and contains the judgment roll and other papers. Volume 2 is a transcript of the proceedings had and of the testimony given at the trial, certified by the reporter pro tempore of the court to be a full, true, and correct statement of the testimony given and proceedings had in said court upon the trial of the action. The designation of volumes 1 and 2 as statement on appeal is a misnomer, for neither has been settled nor agreed upon as required by the old practice concerning statements on appeal.
Volume 2 cannot be considered as a bill of exceptions, because it has not been settled and allowed by the judge or court, or by stipulation of the parties, as required by law.
In addition to the judgment roll, and other papers which have no bearing upon the motion before us, volume 1 contains three documents, denominated, respectively, "Bill of Exceptions" and "Supplemental Bill of Exceptions." These are signed by the attorneys for the appellant, and purport to contain objections made by counsel for appellant, rulings of the court thereon, and the exceptions taken to such rulings. They are sworn to by one of the attorneys for appellant. None of these so-called bills of exceptions purports to contain the evidence adduced at the trial, nor has any of them been settled or approved by the trial judge or the court or by stipulation of the parties.
As there is no bill of exceptions in the record on appeal, this case is controlled by the decision in Mexican Dam and Ditch Co. v. Schultz, 45 Nev. 260, 201 Pac. 548. We there held, on an appeal from an order denying a motion for a new trial, that the failure of appellants to bring up the errors based upon any grounds for a new trial by a statement or bill of exceptions deprived them of the right to have their case considered upon the merits.
On the authority of this holding, therefore, the motion to dismiss the appeal from the order denying the motion for a new trial is granted.
As to the appeal from the judgment, we perceive no error in the judgment roll, and the judgment is affirmed.