JOHNS-MANVILLE, Inc. v. LANDER COUNTY
Johns-Manville, Inc. v. Lander County
JOHNS-MANVILLE, Inc. v. LANDER COUNTY
JOHNS-MANVILLE, Inc. v. LANDER COUNTY
No. 2696
October 14, 1924.
229 Pac. 387.
Hoiva,rd E. Browne, District Attorney, for Appellants:
L. 0. Hawkins, for Respondent:
OPINION
By the Court,
Coleman, J.:
The respondent has moved to dismiss the appeal in this case upon three grounds: (1) That the court is without jurisdiction to consider the appeal, for the reason that it was prematurely taken, in that no final judgment had been rendered against the appellants or either of them; (2) that no bill of exceptions had been filed or served upon the respondent, as provided by the rule of this court, and (3) that no copy of the record on appeal, or judgment roll, had been served upon the respondent.
April 3, 1925.
234 Pac. 518.
We may say generally that there is no merit in either of the last two grounds. Section 2 of chapter 97, Stats. 1923, provides that no appeal shall be dismissed for any defect or informality in the appellant's proceedings, until the appellant has been given an opportunity to correct such defect. This is an excellent provision and should be construed most liberally.
The first ground of the motion is well taken. Section 5329, Rev. Laws, as amended by chapter 91, Stats. 1913, p. 113, designates the judgments and orders from which an appeal may be taken. Paragraph 1 of that section provides that an appeal may be taken from a final judgment within six months. Nowhere in the statute is there an authorization of an appeal from an order refusing to set aside a default, and such is the order sought to be appealed from in this case.
The right of appeal is fixed by the statute, and there can be no appeal except as provided therein. We have no discretion in the matter. No final judgment having been rendered, and this not being a case falling within the terms of either of the other paragraphs of the law authorizing an appeal, the motion must be. sustained. Sherman v. Standard M. Co., 166 Cal. 524, 137 Pac. 249; Bowen v. Webb, 34 Mont. 61, 85 Pac. 739; Elko-Tuscarora M. Co. v. Wines, 24 Nev. 305, 53 Pac. 177.
Appeal dismissed.
On Second Motion to Dismiss
E. F. Lunsford, for Movant:
Hoivarcl E. Browne, for Appellant:
OPINION
By the Court,
Coleman, C. J.:
Heretofore we entered an order in a case entitled as above and concerning the same litigation, whereby we dismissed an appeal from an order made before final judgment. 48 Nev. 244, 229 P. 387. Subsequently to the entry of that order, counsel for the defendants gave notice of appeal to the effect that defendant, county of Lander, "hereby appeals to the Supreme Court of the State of Nevada, from the order1 of this court denying defendant county of Lander's motion to set aside the default entered against said county of Lander and to allow said county of Lander to answer the complaint filed in this action on the merits; and said county of Lander, State of Nevada, also appeals from the judgment in said action against the county of Lander, as the same appears on file in the above-entitled court and cause. Said appeal is upon the judgment roll alone."
The plaintiff has moved to dismiss upon several grounds: (1) Because no appeal can be taken from the order mentioned; (2) because more than 60 days have elapsed since the making of the order mentioned and before an appeal was attempted to be taken in the matter; (3) because no copy of the notice of appeal was served upon the plaintiff or its attorney within three days after the filing of said notice of appeal, nor at the time of or prior to the filing of said notice; (4) that the notice of appeal from said order is combined in the same paper with a notice of appeal from the j udgment which was made and entered in said action on December 20, 1924, and is an attempt to combine two appeals in one notice, not authorized by law; (5) that there is not a sufficient record on appeal from either the order of the Sixth judicial district court of the State of Nevada, in and for the county of Humboldt, of date March 5, 1924, denying the motion of the defendant county of Lander to set aside the default entered against said county of Lander, or from the j udgment made and entered in said mentioned court on the 30th day of December, 1924, to properly, or at all, present the questions and matters sought to be urged and raised on either of said appeals to the Supreme Court of the State of Nevada, in this, that the said appeals are each and both taken upon the judgment roll alone, and there is no judgment roll in the said record on appeal.
Counsel for respondent calls our attention to section 5330, Revised Laws, which provides:
"An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same or some specific part thereof, and within three days thereafter serving a similar notice or copy thereof on the adverse party or his attorney."
Upon the hearing an affidavit was read to the effect that no notice or copy of the notice of appeal was served upon the plaintiff or its counsel as provided by law. It was stipulated that counsel for appellant attempted to serve the notice upon counsel for the plaintiff and, failing to find him in his office, handed a copy of the notice to another party to be served. But that is the only showing in the matter.
The filing of a notice of appeal with the clerk and the service of it or a copy thereafter upon the adverse party or his attorney are necessary to the perfection of the appeal. No mere effort to make service will satisfy the statute. There must be an actual service, as provided in section 5369, Revised Laws, as amended by statute (1923 Stats, pp. 103, 104).
That the filing and service of the notice in question are jurisdictional is not questioned by counsel for appellant, and that such is the law is well settled in this state. This court, in Spafford v. White River Valley L. & L. Co., 24 Nev. 184, 51 P. 115, quoting approvingly from a former opinion of the court, held:
"In order to take and perfect an appeal, the appellant should first file his notice of appeal, next serve it, and within five days of the filing of the notice, file an undertaking on appeal; the service of the notice must precede or be contemporaneous with the service."
See, also, State v. Brown, 30 Nev. 495, 98 P. 872.
In the cases mentioned the point in question was as to the order of serving; the court holding that, when the service was not in the order prescribed by the statute, the appellate court acquired no jurisdiction. In the instant case, where there was an entire lack of service of the notice, there would be even stronger ground to sustain the conclusion that this court acquired no jurisdiction of the appeal. While what we say disposes of the entire appeal, we may add that if the notice had been properly served, the mere statement in the notice to the effect that the defendant appeals from the order as well as the j udgment would in no way oust this court of jurisdiction. An appeal will not be dismissed merely because the notice of appeal contains more matter than is required. On an appeal from a judgment, this court may review intermediate orders without reference thereto in the notice of appeal, and a notice such as complained of would not be prejudicial. Potter v. L. A. & S. L. R. R. Co., 42 Nev. 370, 177 P. 933.
Counsel for appellant contends that, pursuant to section 2, Stats. 1923, p. 164 (which provides that no appeal shall be dismissed for any defect or informality in the appellate proceedings until the appellant has been given an opportunity to correct the defect), the appeal in this matter should not be dismissed without his being given an opportunity to serve a copy of the notice of appeal on the respondent. It cannot be said that the failure to serve a copy of the notice of appeal was a defect or informality. It was a total failure to comply with a jurisdictional requirement of the statute. There is a wide difference between rectifying a defect or informality and the performing of an act which was not done at all, especially when that act is j urisdictional as is the service of a copy of a notice of appeal. In this connection we deem it proper to suggest, if the time within which an appeal may be taken has not expired, that a new notice may be filed and served. Douglass v. Thompson, 35 Nev. 196, 127 P. 561, Ann. Cas. 1914c, 920.
Other matters were discussed upon the argument, but we do not deem it necessary to consider them.
It is ordered that the appeal be dismissed.