Default was entered through mistake, inadvertence, surprise, and excusable neglect of appellants' counsel under circumstances warranting and requiring court to exercise discretion, as provided in 5084 Rev. Laws, to set it aside and allow hearing on merits.
This section has been liberally construed. Where motion to set default aside is made in due time and meritorious defense is shown, relief will be granted. Kidd v. Four Twenty Mng. Co.,3 Nev. 381; Howe v. Coldren, 4 Nev. 171; Horton v. New Pass Co.,21 Nev. 189; Conley v. Chedic, 7 Nev. 336; Nolan v. May, 36 Nev. 611; Bowman v. Bowman, 47 Nev. 207.
Where complaint fails to state cause of action, any judgment entered thereon can be vacated in proper action. Where court acquires no jurisdiction and default *Page 245 is entered, judgment is void and will be set aside on application. Continental Gin Co. v. Arnold, L.R.A. 1918B, 511; Ward v. Bank, 225 P. 497; W.U. Tel. Co. v. Beach, 1034. Right of appeal from district court is governed by chapter 46 of the civil practice act, as amended, and does not provide for appeal from order refusing to set aside default before final judgment. Rev. Laws, 5325, 5329, as amended 1913 Stats. 113; Botsford v. Langan, 29 Nev. 459.
Appeal taken before rendition of judgment will be dismissed. Elko-Tuscarora Mer. Co. v. Wines, 24 Nev. 305.
Where record shows mere sustaining of demurrer without judgment, appeal will be dismissed. Keyser v. Taylor, 4 Nev. 435.
Appeal cannot be taken from judgment or any part thereof until all rights of parties are determined and fixed. Lake v. Lake,17 Nev. 236.
Order setting aside default before entry of judgment is not appealable, it not being order after judgment nor interlocutory order within Code Civ. Proc. sec. 963. Savage v. Smith,97 P. 821; Bowen v. Webb, 85 P. 739; 3 C.J. 437.
In absence of bill of exceptions matter cannot be reviewed on appeal, though there may be question whether such objection should be raised on merits of appeal, rather than on motion to dismiss.
Appeal should be dismissed because no record of appeal was served as required by rule xiii, sec. 3; 1923 Stats. 165.
Refusal to vacate order of default before judgment is mere interlocutory, reviewable only on appeal after final judgment. Jordan v. Hutchinson, 81 P. 867.
OPINION
The respondent has moved to dismiss the appeal in this *Page 246 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.
1. 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.
2. 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.
3. 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 P. 249; Bowen v. Webb, 34 Mont. 61, 85 P. 739; Elko-Tuscarora M. Co. v. Wines, 24 Nev. 305, 53 P. 177.
Appeal dismissed.
ON SECOND MOTION TO DISMISS
April 3, 1925. 234 P. 518. *Page 247
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