J. L. HARPER, Appellant, v. GEORGE W. LICHTENBERGER, Respondent
Harper v. Lichtenberger
Orr, J., being disqualified, the Governor designated Honorable James Dysart, Judge of the Fourth Judicial District, to sit in his stead.
J. L. HARPER, Appellant, v. GEORGE W. LICHTENBERGER, Respondent.
J. L. HARPER, Appellant, v. GEORGE W. LICHTENBERGER, Respondent.
No. 3277
July 7, 1939.
92 P.(2d) 719.
Ham & Taylor, for Respondent:
Clifford A. Jones, Roland H. Wiley and Harry T. Young, for Appellant:
OPINION
By the Court,
Dysart, District Judge:
Respondent moves this court for an order striking certain portions of the judgment roll, which judgment roll constitutes the record on appeal.
Appellant gives notice that he intends to appeal and does appeal from the judgment made and entered in the lower court on the 23d day of December 1938 without first moving for a new trial. No bill of exceptions or statement of the case was ever filed and served. So, it appears from the record that appellant (defendant below) has appealed upon the judgment roll alone.
• Respondent, by his supplemental points and authorities, concedes that the first paragraph of his motion to strike, namely, paragraph 1 of his said motion wherein he moves to strike the minute order appearing at page 25 of the judgment roll, is not well taken, in that the said minute order is a ruling on demurrer and is, therefore, properly a part of the judgment roll as provided by section 8829 N. C. L. 1929. We will, therefore, consider only the second and last paragraph of respondent's said motion, namely, that part of said motion wherein respondent moves to strike the conclusions of law of the trial court comprising pages 42 to 48, inclusive,' of the judgment roll or record on appeal now before this court. The portion of the record under consideration is entitled in the lower court and endorsed as, "Filed Dec. 23 1938" and bears the entitlement: "Conclusions of Law upon the Special Verdict of the Jury." Then follows the recital that the case came on for trial before a jury regularly and duly impaneled and the case having been tried and submitted to the jury for its decision and the jury returned its special verdict. Then follows the special verdict of the jury, including the findings of fact by the jury. Following the jury's special verdict and beginning on page 48 of said record, which is the last page of the portion of the record which respondent moves to strike, we find the following: "and the court having adopted said special verdict." The court then proceeds to find and adopt its conclusions of law, based upon the special verdict and findings of the jury. Respondent, in his said motion to strike the portion of the record just referred to, bases said motion upon the ground: that the said portion of the record is not "embraced in any statement of the case or bill of exceptions and that the same are (is) not properly a part of. the judgment roll and consequently cannot be considered on this appeal."
Appellant, from the record as made, must rely for his appeal upon what properly constitutes the "judgment roll." Section 38 of the "New Trial and Appeals" act, being section 38 of chapter 32 of the 1937 session laws of the State of Nevada, found at page 66 thereof, among other things, provides as follows: "A party may appeal upon the judgment roll alone, in which case only such errors can be considered as appear upon the face of the judgment roll." Section 8829 N. C. L. 1929 provides what shall constitute the judgment roll in civil cases. Paragraph 1 of said section provides what shall constitute the judgment roll in default cases. Paragraph 2 provides as follows: "In all other cases, the pleadings, a copy of the verdict of the jury, or finding of the court or referee, all bills of exceptions taken and filed, and a copy of any order made on demurrer or relating to the change of parties, and a copy of the judgment; It will be noted that section 8829, supra, makes no provision for including in the judgment roll the conclusions of law found and adopted by the trial court, and since said section expressly defines what shall constitute the judgment roll, and as it does not include the conclusions of law, reached by the trial court, it necessarily follows that the same are no proper part of the judgment roll. If it was the intention of the appellant to have this court review the conclusions of law, found by the trial court, he should have included the same in a statement of the case or, perhaps more properly, in a bill of exceptions. Nothing can become a part of the record on appeal from the final judgment unless it is a part of the judgment roll proper or is embraced in a bill of exceptions. See Brearley v. Arobio, 54 Nev. 382, 12 P. (2d) 339, 19 P. (2d) 432; also Peri v. Jeffers, 53 Nev. 49, 292 P. 1, 293 P. 25, 298 P. 658.
Section 8777 N. C. L. 1929 defines both a general and special verdict of the jury under our civil jury system, and as to a special verdict, provides as follows: "The special verdict shall present the conclusions of fact, as established by the evidence, and not the evidence to prove them; and those conclusions of fact shall be so presented as that nothing shall remain to the court but to draw from them conclusions of law." The trial court, in the instant case, reached its conclusions of law from the facts found by the jury by its special verdict; and by the provisions of section 8829, supra, the said verdict of the jury is a proper part of the judgment roll, which appears in the record now before us at pages 37 to 41, inclusive.
January 23,1940.
98 P.(2d) 1069.
Counsel for appellant in his opening brief in opposition to respondent's said motion to strike, contends that this being a case in equity, therefore the jury could be impaneled for the purpose only of sitting in an advisory capacity to the court, and any verdict it might render could not be binding unless expressly adopted by the court, and that after such verdict had been adopted by the court, all proceedings, including the practice on review, are the same as though no jury had been called. Assuming, for the purpose of this motion, that the instant case is one in equity and the jury was called in an advisory capacity only, we are unable to see how this could avail appellant anything for the reason that the only question here under consideration is: Can the conclusions of law of a trial court be properly made a part of the record on appeal? We hold they can not, unless the same have been embodied in a bill of exceptions. Our statute on new trials and appeals makes no distinction whether the appeal be taken in a case in equity or a case at law.
For the reasons given, it is hereby declared that that portion of the judgment roll, comprising pages 42 to 48, inclusive, being folios 124 to 144, inclusive, of the record on appeal be and the same is hereby stricken.
Orr, J., being disqualified, the Governor designated Honorable James Dysart, Judge of the Fourth Judicial District, to sit in his stead.