HENRY WILLIAMS, Respondent, v. H. F. RICE et al., Appellants
Williams v. Rice
HENRY WILLIAMS, Respondent, v. H. F. RICE et al., Appellants.
[No. 878.]
HENRY WILLIAMS, Respondent, v. H. F. RICE et al., Appellants.
Statement on Motion eob New Tbial — When not a Statement on Appeal. — In construing the provisions of the civil practice act (sec. 197, 332, 333, 335-G): Held, that, when an appeal is only taken from the judgment, a statement that had been prepared and used as a statement on motion for a new trial cannot be considered as a statement on appeal. (Beatty, J., dissenting.)
Appeal from the District Court of the Second Judicial District, Ormsby County.
The facts appear in the opinion.
R. M. Clarke, for Appellants.
Whitman & Wood, for Respondents.
By the Court,
Hawley, C. J.:
The transcript on appeal in this case shows that judgment was rendered March 9, 1876; that a statement on motion for a new trial was filed March 14, 1876; that the motion for a new trial was denied August 11, 1876, and the notice of appeal filed September 26, 1876. The appeal is taken from the judgment only. Respondent moves to strike out "the statement on motion for a new trial," and if his motion is granted there will be nothing left for us to consider except the judgment roll.
An appeal from the judgment, without a statement, brings up nothing for review except the judgment roll. (Howard v. Richards et al., 2 Nev. 133; Klein v. Allenbach, 6 Nev. 159; McCausland v. Lamb et al., 7 Nev. 238; Wetherbee v. Carroll et al., 33 Cal. 549.)
It is claimed by counsel for appellants that inasmuch as the statement on motion for new trial was filed within the time allowed by law for the preparation of a statement on appeal, this Court ought to consider it as a statement on appeal regardless of the facts that it does not purport to be such a statement and, as admitted on the argument, that it was not prepared, or intended to be used, as a statement of the case on appeal; and it is argued that there is no substantial reason why it should not be so considered.
Does the statute authorize us to so consider the statement? We think not. The statute, in its terms, is clear, plain and explicit; there is no ambiguity, no doubtful meaning. By following its directions we comply with the law, and certainly no more substantial reason could be given for our action. Let us see what the statute requires. Sec. 197 of the civil practice act provides that when the appeal is from an order granting or refusing a motion for a new trial, the statement on motion for new trial " shall constitute, without further statement, the papers to be used on appeal." (1 Comp. Laws, 1258.) There is no other provision of the statute that authorizes the statement on motion for new trial to be considered as a statement on appeal, and it cannot, in our opinion, be otherwise so considered unless there is a stipulation or agreement of counsel to that effect.
Sec. 332 provides as follows: "When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment he shall, within twenty days after the entry of such judgment prepare such statement," etc., etc. (1 Comp. Laws, 1393.)
When the statement is prepared and settled or agreed upon, as provided for in said section, "it shall be filed with the clerk," (sec. 335) and "a copy of the statement shall be annexed to a copy of the judgment-roll." (Sec. 336.) But if no such statement is prepared, the party appealing from the judgment "shall be deemed to have waived his right thereto." (Sec. 333.)
Under the provisions of the statute the statement on motion for new trial has a distinct and separate office to perform and is wholly independent of the statement provided for in sec. 332. It is prepared for the purpose of being used — as the statute provides-1 — bn motion for a new trial, and when "thusused" it "shall constitute, without further statement, the papers to be used on appeal," and it is only when thus used, and when the appeal is taken from the order granting or refusing a new trial, that the statute authorizes it to be considered as a statement on appeal. This, it seems to us, is the plain meaning of the statute. But we are not without other authority directly upon the disputed point.
In Burdge v. G. H. and B. R. W. Co. there was no statement on appeal, but a statement used on motion for new trial. The appeal was from the judgment alone. The decision was rendered prior to the adoption of the statute in question by the legislature of this state. Field, J., in delivering the opinion of the court — Baldwin, J., and Cope, J., concurring — "said: " The statement contained in the record was used on the motion for a new trial, and we can only examine the action of the court below in denying the motion. The judgment cannot be reviewed except through the order made upon the motion, and from such order there is no appeal. This leaves the case to stand upon the judgment-roll." (15 Cal. 198.)
In Levy v. Gettleson the facts Avere different, but the de cisión fully sustains tlie conclusions we have reached. Shatter, J., in delivering the opinion of the court, in which all the justices concurred, said: "One of the questions presented is, whether it is error for a district court to refuse to settle a ' statement' made in support of a motion to set aside a nonsuit, or to refuse to entertain a motion to amend such statement after it has been filed and served on the opposite party, or error to grant an order striking such statement from the files of the court. The district courts cannot be called upon to review a case upon the testimony, nor upon an allegation of errors of law occurring at the trial, except in the way pointed out in the practice act. That method is simple and straightforward, and in our judgment, was intended to exclude all others. If the plaintiff desired to have the nonsuit entered against him investigated upon its merits in the district court, he should have moved for a new trial upon a statement; or, if he preferred to bring the case to this court directly, he could have done so by an appeal from the judgment, aided by a statement annexed to the roll. There is a statement in the transcript, but it does not 'purport to be a statement on appeal from, the judgment. The result is that the court did not err in refusing its sanction to a method of reviewing decisions made in the course of a trial, altogether unknown to our system." (27 Cal. 688.)
If appellants desired to have the assignments of error, as set forth in the statement on motion for a new trial, reviewed by this court they should have taken an appeal from the order of the district court refusing a new trial. Not having pursued the course clearly pointed out by the statute, they have, in law, waived their right to have the statement on motion for a new trial considered. The motion of respondent is allowed, and there being no statement annexed to the judgment-roll, as provided for by the statute, there is nothing properly before us for review except the judgment-roll. In that, it is admitted, no error appears.
The judgment of the district court is affirmed. Bemittitur forthwith.