MARKWELL v. GRAY
Markwell v. Gray
MARKWELL v. GRAY
MARKWELL v. GRAY
No. 2795
March 31, 1928.
265 P. 705.
A. L. Haight and Price & Hawkins, for Movants:
G. Gunzendorfer, for Appellant:
Per Curiam,:
On August 27, 1927, Margaret Markwell, appellant, plaintiff in the lower court, perfected her appeal from a judgment of dismissal of her action in equity, entered on April 13, 1927, and her appeal from an order denying her motion for new trial, entered on June 28, 1927. The respondents, defendants in the lower court, move to dismiss the appeal from the order denying the motion for new trial, and also move to strike the papers, files, and documents specified in the motions.
The parties will be designated as they appeared in the court below.
We shall first consider and dispose of the motion to dismiss. The motion is based upon the ground that no bill of exceptions was served and filed within 20 days after the decision upon the motion for new trial, as required by section 1 of chapter 97, Statutes 1923. In opposition to the motion, the plaintiff makes two contentions: (1) That the time prescribed by the statute does not begin to run until after notice of the decision upon the motion for new trial is served; (2) that, upon the showing made by the affidavit of counsel for plaintiff, filed in opposition to the motion, the motion should be denied.
The first contention is untenable. Concededly, no service of notice of the making of the order is required by the statute. Where no provision is made for notice, it is the duty of the moving party to ascertain the entry of such an order. Hayne New Trial and Appeal (Rev. Ed.), p. 878, sec. 168, citing cases.
According to the affidavit filed in opposition to the motion to dismiss, plaintiff's motion for new trial was argued and submitted for decision on June 16, 1927, and taken under advisement. Immediately upon the submission of the motion, the trial judge spoke to the affiant about the possibility ' of an amicable settlement of the controversy; that thereafter, upon the invitation of the judge, the parties and their attorneys met in his chambers for purpose of considering a settlement of the case, and, as a result of the negotiations there carried on, in which the j udge participated, a tentative settlement was reached, which involved various details requiring time to work out, and an adjournment was taken to effectuate the settlement; that, at the time of the adjournment, affiant was given to understand that nothing further would be done in the action, especially as to said motion for a new trial, in view of the probable settlement of the controversy; that on June 28, 1927, and while the proposed settlement was in process of maturing, the court made, and caused to be entered, an order denying plaintiff's motion for new trial; that neither the judge, his clerk, nor the attorneys for defendants gave plaintiff or affiant any notice, verbal or written, of the- decision and order denying the motion; that on several occasions affiant conversed with the judge, on two of which the judge inquired of affiant as to the status of the settlement of the case, but said nothing to affiant of having made an order denying plaintiff's motion for new trial, and affiant remained in utter ignorance thereof until he was informed by plaintiff on August 26, 1927, that she had just been advised that an order denying the motion had been made by the judge on June 28, 1927; that on September 1, 1927, affiant requested Prince A. Hawkins, one of the attorneys for defendants, to stipulate that the court make an order extending time in which to serve and file a bill of exceptions; that the request was refused by Mr. Hawkins, who referred affiant to the judge; that thereupon affiant communicated with the j udge, and also forwarded to him a blank form of order, extending the time to September 30, 1927, in which to serve and file a bill of exceptions; that the j udge, in answer to the communication, referred affiant to the attorneys for the defendants for a stipulation agreeing to the entry of the order; that affiant again requested of Mr. Hawkins such stipulation, which was refused, with the statement that affiant was authorized. to say to. the judge that Mr. Hawkins did not object to the entry of the order; that thereafter affiant again communicated with the judge, and on September 13, 1927, the clerk of the court informed affiant that on that day the judge had refused to extend the time in which to serve and file a bill of exceptions. No counter affidavit was filed.
Counsel for the plaintiff contends that, upon the showing made by the uncontradicted facts contained in his affidavit, this court, in furtherance of justice, should deny the motion to dismiss the appeal from the order denying plaintiff's motion for new trial. On the other hand, counsel for the defendants insist that, where necessary steps are not taken within the time required by statute, and the time- has expired, the district court loses jurisdiction to enter an order extending the time to serve and file a bill of exceptions after such time has expired. Caldwell v. Wedekind Mines Co., 50 Nev. 366, 261 P. 652; Joudas v. Squire, 50 Nev. 42, 249 P. 1068; Water Co. v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079;. E. Reinhart Co. v. Oklahoma G. M. Co., 48 Nev. 32, 226 P. 902, 233 P. 842; Shirk v. Palmer, 48 Nev. 451, 232 P. 1083, 236 P. 678, 239 P. 1000. These authorities do not specially hold that, where a proper and well-grounded application is made invoking the jurisdiction of the court to relieve a party of the consequences of his default, the court has no power, under any circumstances, to relieve a party of such default.
It is held, under statutes substantially the same as section 142 of our civil practice act (sec. 5084, Rev. Laws), that district courts may allow and settle bills of exception after statutory time has elapsed, if it appears that the party seeking settlement failed to present same within the time fixed by statute, through excusable neglect. Sherman v. Southern Pacific, 31 Nev. 285, 102 P. 257; 2 Cal. Juris. (Appeal and Error), sec. 293; 4 Corpus Juris, 291. But by this observation we do not wish to be understood as committing ourselves upon the question as to whether or not plaintiff is entitled to relief in the lower court under the section referred to.
Pursuant to our former decisions, we conclude that the transcript as a bill of exceptions, not having been served and filed within the time required by the statute, cannot be considered by this court upon plaintiff's appeal from the order denying her motion for new trial, and, there being nothing before the court upon which it can be determined whether the court below erred in denying plaintiff's motion for new trial, it follows that the appeal from said order must be dismissed.
Upon the authority of Joudas v. Squire, supra; Water Co. v. Belmont Dev. Co., supra; McGuire v. Ehrlich, 49 Nev. 319, 245 P. 703, the respondents' motion to strike the papers, documents, and files specified therein must be sustained, for the reason that they constitute no part of the judgment roll, as defined by section 5273, Rev. Laws, and, not being incorporated in any bill of exceptions, they cannot be considered, and should be stricken. The fact that they are certified by the clerk is immaterial. Bowers v. Charleston Hill Nat. Mines, 50 Nev. 99, 251 P. 721.
The motion to dismiss the appeal taken from the order denying plaintiff's motion for new trial and the motion to strike are sustained.
It is so ordered.