HAROLD S. ANDERSON, also known as and called HAROLD ANDERSON, Appellant, v. FRED SNELL, Respondent
Anderson v. Snell
HAROLD S. ANDERSON, also known as and called HAROLD ANDERSON, Appellant, v. FRED SNELL, Respondent.
HAROLD S. ANDERSON, also known as and called HAROLD ANDERSON, Appellant, v. FRED SNELL, Respondent.
No. 3139
July 2, 1936.
58 P. (2d) 1041.
Ham & Taylor, for Respondent:
Henderson & Marshall, for Appellant:
OPINION
By the Court,
Ducker, C. J.:
This is a motion to strike from the record on appeal a document styled "Transcript in Lieu of Bill of Exceptions." This document consists of the judgment roll, a number of other papers, and what purports to be a transcript of the proceedings of the trial. The latter is certified by the court reporter.
Concisely stated, the grounds of the motion to strike are: (1) That no bill of exceptions has been taken in the trial court as required by law, and (2) that no bond or undertaking upon appeal has been served and filed or deposit made of costs as required by law.
Respondent contends that the transcript of proceedings cannot be held to be a bill of exceptions because it was not settled as such by the judge or court or by stipulation of the parties as required by section 31 of chapter 90, "An act to provide for and to regulate proceedings on motions for new trials and on appeal in civil cases, and repealing all acts and parts of acts in conflict therewith," approved March 27, 1935. See Stats. 1935, p. 195. Such a settlement is unnecessary when a transcript of the proceedings is used as the bill of exceptions. This is shown by the part of subdivision (1) of said section, which reads: "(1) A transcript of the proceedings, certified by the court reporter, appointed by the court, under authority of law, or by agreement of the parties, to be a full, true and correct transcript thereof, may be served and filed, and when so filed shall be and constitute the bill of exceptions of the proceedings relating to the point or points involved, as therein set forth, without further stipulation or settlement by the court; -provided, however, that on motion duly noticed, the court may at any time correct any error in such transcript by appropriate amendment thereto."
The foregoing language is clear in meaning and not susceptible of the construction contended for by respondent. In support of his contention he stresses the latter part of the subdivision, which reads: "The transcript of the proceedings, certified by the court reporter, as herein provided, together with all other matters, exhibits, motions, papers or orders, required to be incorporated in a bill of exceptions, when so incorporated in the bill of exceptions, as herein provided, and when such bill of exceptions has been so settled and allowed, as herein provided, it shall become a part of the record in such action or special proceeding."
Respondent argues that this language signifies that the transcript of the proceedings, as well as the other matters mentioned, must be settled and allowed by the court or by-stipulation of the parties before they can become a part of the record as a bill of exceptions. We do not so interpret the language. It means only that such other matters not properly a part of the judgment roll must be settled and allowed. We pointed out in Picetti v. Orcio, 56 Nev. 1, 41 P. (2d) 289, where chapter 97, Stats. of 1923, containing language substantially the same as to making a transcript of the proceedings certified by the court reporter, the bill of exceptions, was under consideration, that it was not contemplated that such a transcript might not be used with other documents or matters to make up a bill of exceptions to be settled by the trial judge. We say the same as to the statute before us.
The transcript was served and filed in apt time. But respondent further contends that it does not constitute a bill of exceptions for the reason that the certification does not show that the reporter was appointed by the court, or under authority of law or by stipulation of counsel, and there is no proof to that effect. The certificate reads:
"I hereby certify that I was the duly appointed, qualified and acting court reporter on the 15th and 16th days of April, 1935, and the foregoing is a full, true and correct transcript of my shorthand notes taken in the foregoing entitled action on said dates."
" [Signed] Margaret Cobbruire, Court Reporter."
We think the certificate is sufficient prima facie, at least, to show that the person making it was the court, reporter regularly appointed in the case. What other proof was necessary counsel does not undertake to point out, and we find none expressed or indicated in the statute.
In support of the motion to strike on account of failure to file an undertaking or deposit of cash, it is contended that it was necessary under section 24 of said act, in lieu of an undertaking, for the appellant to have deposited in the court below the amount of the judgment and $300 to perfect the appeal. It is sufficient to say that the question is not controlled by that section, but by section 16 of said act, which, in part, provides: "To render an appeal effectual for any purpose, in any case, a written undertaking shall be executed on the part of the appellant by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, not exceeding three hundred dollars; or that sum shall be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal," etc.
It appears from the record before us that the sum of $300 was deposited by appellant with the clerk of the lower court.
While we have deemed it advisable to determine the last question, we must not be understood as deciding that the failure to duly file an undertaking on appeal, or make a deposit in lieu thereof, is ground for striking a bill of exceptions.
The motion to strike should be denied.
It is so ordered.
December 3, 1936.
62 P. (2d) 703.