FRANK LOVE and MARTIN EVENSEN, Respondents, v. MT. ODDIE UNITED MINES COMPANY (a Corporation) , Appellant
Love v. Mt. Oddie United Mines Co.
FRANK LOVE and MARTIN EVENSEN, Respondents, v. MT. ODDIE UNITED MINES COMPANY (a Corporation) , Appellant.
[No. 2313]
FRANK LOVE and MARTIN EVENSEN, Respondents, v. MT. ODDIE UNITED MINES COMPANY (a Corporation) , Appellant.
[181 Pac. 133; 184 Pac. 921]
1.Appeal and Error — Exceptions—Certificate.
A trial court’s certificate that statement and. bill of exceptions contains all material evidence, except documentary evidence, is insufficient to authorize review of evidence, which will be presumed to support findings and judgment.
ON REHEARING
1. Mines and Minerals — Question of Pact Whether Work Done Improved Claims.
It is purely a question of fact whether or not development work done in a particular shaft by the locator of claims so tended to improve the entire group of claims as to prevent forfeiture thereof.
2. Appeal and Error — Reversal in Equity for Erroneous Instruction.
In equity cases, a judgment will not be reversed because of an' erroneous instruction.
3. Mines and Minerals — Improvement Work on Single Location Developing Entire Group.
Improvement work within the meaning of the federal statute as to the location of mining claims, is deemed to have beeu performed, whether the claim consists of one location or several, when in fact the labor is performed or the-improvements are made for the development of the whole claim, that is. to ■ facilitate the extraction of metals, though the labor and improvements may be on ground originally part of only one of the locations, and it is not necessary that the work “manifestly” tend to the development of all the claims in the group; “manifest” meaning evident or obvious to the mind.
4. Mines and Minerals — Development Work on Group of Claims.
In the exercise of judgment as to where development work should be done on a group of mining claims and locations, a wide latitude should he allowed the owners of the property.
5. Mines and Minerals — Evidence Not Showing Development Work Insufficient.
In an action to quiet title 1o a group of eight mining claims, wherein verdict was rendered in favor of plaintiff relocators for four of the claims, evidence that the development work done in one place by defendant company on such claims was insufficient to prevent forfeiture held not such as to sustain the judgment.
G. Trial — View of Premises by Court.
A view of the premises involved in mining litigation cannot be considered as evidence, but only to enable tbe court better to understand and comprehend the evidence introduced and intelligently to apply it.
Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Action to quiet title to mining claims. Judgment for plaintiffs, and defendant appeals.
Affirmed.
On rehearing,
judgment reversed.
H. R. Cooke, for Appellant:
The record affirmatively shows, as the trial judge, whose duty it was to settle and allow the bill, certifies, that it contains “all of the evidence admitted at said trial (with the exception of documentary evidence, which was separately certified) material and pertinent to the issue.” “But, to enable this court to intelligently pass upon the question whether the findings or verdict are sustained by the evidence, it is necessary that it have all of the material evidence before it.” Howard v. Winter, 3 Nev. 549; Eaton v. Oregon Ry. Co., 30 Pac. 311. “If it were stated that it contained all the material evidence offered upon the particular facts claimed to be unsupported, the certificate of the judge to the correctness of the statement would of course be sufficient to establish that fact.” Sherwood’ v. Sissa, 5 Nev. 349; Bailey v. Papina, 20 Nev. 177. “A party cannot complain of omission in a bill of exceptions of evidence not material to questions considered on appeal.” Denver & R. G. Co. v. Andrews, 53 Pac. 518. The terms “settling,” “allowing,” etc., presuppose a discretion in the trial court as to what and how much of the evidence is material and should be contained in the bill. 2 C. J. 1156.
Noreross, Thatcher & }Voodburn, for Respondent:
The court should not inquire at all into the evidence in this proceeding, for the reason that no valid motion for a new trial was ever made, and because the bill of exceptions shows affirmatively that it does not contain all the evidence. The functions of the j.ury were advisory, and did not constitute a verdict or decision. State ex rel. Equitable G. M. Co. v. Murphy, 29 Nev. 247. The notice of intention to move for a new trial should have been directed against the decision of the court. Idem. No valid motion for a new trial having been made, this court may not consider the insufficiency of the evidence to justify the decision of the court. Rev. Laws, 5328; Street v. Lemmon M. Co., 9 Nev. 251.
The bill of exceptions does not show affirmatively that it contains all the evidence. The certificate of the official reporter shows that the testimony transcribed is “a full, true and correct transcription of certain designated testimony.” This is not cured by the purported certificate of the district j udge. To entitle one to review the sufficiency of the evidence to justify the verdict or decision, the statement or record or bill of exceptions must contain all of the evidence. Howard v. Winters, 3 Nev. 541; Sherwood v. Sissa, 5 Nev. 353; Bowker v. Goodwin, 7 Nev. 137; Libby v. Dalton, 9 Nev. 23. The appellate court will presume that every fact essential to sustain the judgment, order or decision was fully proven. “Such rulings are based upon the presumption that all intendments being in favor of the verdict, the omitted evidence would sustain it.” Libby v. Dalton, supra.
By the Court,
Coleman, C. J.:
This is an action to quiet title to certain mining claims. Judgment was rendered in favor of the plaintiffs, from which, and from an order denying motion.for a new trial, an appeal has been taken.
Counsel for respondent object to our considering the merits of the case, for the reason that the bill of exceptions does not contain all of the evidence material and essential to a correct determination thereof.
Before proceeding further, it may not be out of place to say that at different stages of the proceedings in the lower court, including the preparation of the record upon this appeal, three attorneys who are not now connected with the case participated at different times in its management.
We think the objection urged to a consideration of the case upon its merits is well taken. The bill of exceptions contains only about 1| typewritten pages of the direct testimony of the witness Love, who testified on behalf of plaintiffs, and is confined solely to that portion of his testimony showing his experience as a prospector and miner. It does not contain one word of testimony given by the witness mentioned on direct examination concerning the material and vital issue in the case, but it does contain about 25 pages of his cross-examination upon the vital issue. The bill of exceptions is in substantially the same condition as to the testimony of the witness Evensen.
Following the first 36 pages of the testimony contained in the so-called "statement on appeal and bill of exceptions" is found a statement by the court reporter as follows:
"I hereby certify that I am the duly appointed, qualified, and acting official reporter of the district court of the Fifth judicial district of the State of Nevada, in and for the county of Nye; that I acted as official reporter upon the trial of the above-named cause, and that at such trial I took verbatim shorthand notes of all testimony and proceedings given and had; that the foregoing 36 pages constitute a partial transcription of said shorthand notes, and, so far as this particular portion of the testimony goes, is a correct statement thereof."
On page 205 of the statement is found another certificate of the court reporter, which we quote:
•"I hereby certify that I am the duly appointed, qualified and acting official reporter of the district court of the Fifth judicial district of the State of Nevada, in and for the county of Nye; and that I acted as such official reporter upon the trial of the above-named cause, and that at such trial I took verbatim shorthand notes of all testimony and proceedings given and had; that the foregoing is a full, true, and correct transcription of certain designated testimony, and is in all respects a full, true, and correct statement of said designated testimony and proceedings given and had at such trial."
The certificate of the trial judge is as follows:
"I, the undersigned, the judge who tried said.action, do hereby certify that the foregoing statement on appeal and bill of exceptions has on due notice been settled and allowed by me, and the same is correct, and that it contains a full, true and correct transcription of all of the proceedings upon the trial of said cause and of all the evidence admitted at said trial (with the exception of documentary evidence) material and pertinent to the issue of whether the work on the Verner and on the New York claim was of such a character that the same tended to develop the adjoining claims and which were in controversy between plaintiffs and defendants in this case."
It will be seen from the two certificates of the official reporter that the purported transcript is but a partial transcript of the evidence, while the certificate of the trial judge shows that the statement and bill of exceptions is a correct transcript of all of the evidence admitted at the trial and pertinent to the issues, with the exception of documentary evidence. We do not feel that it is necessary that we determine whether or not the bill of exceptions shows upon its face that all of the material evidence given on direct examination of the witnesses Love and Evensen is not embodied therein. We are clearly of the opinion, however, that the certificate of the trial judge does not show that all of the evidence material to the issue presented upon this appeal is contained in the bill of exceptions, as contended by counsel for appellant, who relies upon the rule laid down in the case of Bailey v. Papina, 20 Nev. 177, 19 Pac. 33. Eliminating from consideration the certificates of the court reporter, which are not necessary at all, it appears from the certificate of the trial judge that documentary evidence material to the issues is not embodied in the statement and bill of exceptions. This being true, we cannot consider the evidence at all, and it must be presumed that the findings and judgment are supported by the evidence. Gammans v. Roussell, 14 Nev. 171; County of White Pine v. Herrick, 19 Nev. 311, 10 Pac. 215; Bailey v. Papina, 20 Nev. 177, 19 Pac. 33.
It may be asked: What documentary evidence could possibly exist which could have aided the trial court in arriving at a conclusion as to the real question of fact involved in the case ? Of course, we need not determine that question, though we think it possible that there might have been reports of mining engineers, or signed statements impeaching the testimony of some, or all, of the witnesses who testified in behalf of appellant. Suffice is to say that, since it appears that there was documentary evidence material to the issue, which is not embodied in the bill of exceptions, we could only speculate as to its character and weight, which we are not called upon to do.
Since it is not contended that any error appears from the judgment roll, it follows that the judgment appealed from must be affirmed; and it is so ordered.