Brooks v. Nevada Nickel Syndicate

By the Court,. Massey, J.: The question presented on motion to dismiss each appeal in the above actions being- the same, it is both convenient and proper that the motions be disposed of in one opinion. Each appeal is from an order of the lower court setting aside and vacating a judgment taken by default. The orders were made on the 3d day of January, 1898. The record shows that the notice of appeal in each case was served upon the attorney for the respondent on the 12th day of January, 1898, and was filed in the clerk’s office on the 13th day of January, 1898. The appellant has shown, by affidavit, that the notices were served upon the attorney at his office in the City of San *271 Francisco on the 12th day of January, 1898, and were immediately mailed to the clerk of the district court at Carson City, and from this showing contends that the filing on the 13th day of January was contemporaneous with the service. This contention is not tenable. The filing contemplated by the statute is the actual delivery of the notice to the clerk, and the placing thereon the proper endorsement. It must, at least, be actually delivered to the clerk, and it can hardly be said to have been delivered to the clerk at the time of its deposit in the postoffice at San Francisco in the absence of any statutory authority making such a deposit an actual delivery. The acts of service and mailing were undoubtedly contemporaneous, but the acts of service and filing under the statute were not contemporaneous — did not occur at the same time, but at different times and on different dates. It is also contended that the proof of service of the notices, by which the attorney admitted “ the receipt of a copy of the within paper,” on the 12th day of January, 1898, operated as a waiver of any irregularity in the filing and service of the same. This acknowledgment admitted nothing except the service of a copy of the paper on that date, and was in effect sufficient proof of such fact, and it would require a strained construction of language to hold that such acknowledgment operated as a waiver of an objection that the notice had not been filed within the time required by the statute. (Towdy v. Ellis, 22 Cal. 650.) It is also contended that the respondent waived any objection to the irregularity of the filing and services of the notices by subsequently entering into and filing stipulations in the actions, postponing the oral argument, and enlarging the time in which the respective parties should file their briefs. In these stipulations each party reserved all objections, exceptions and motions that either may have made, or may make, under the rules of the court. Rule VIII of the court requires that exceptions or objections to the transcript, statement, the undertaking on appeal, notice of appeal, or to its service or proof of service, or any technical exception or objection to the record affecting the right of the appellant to be heard on the points of error assigned, which might be cured on suggestion of diminution of the record, must be taken, at the first *272 term after the transcript is filed, and must be noted in the written or printed points of the respondent, and filed at least one day before the argument, or they will not be regarded. There being no statutory rule regulating the practice in these matters, this rule has the force and effect of a statute. This is so we[l established that a citation of authorities in support thereof is not necessary. Whether or not the making and filing the stipulations, without the reservation, would operate as a waiver of the irregularities under the rule is not before us, and upon that question we express no opinion. But it is so clearly evident from the reservation contained in the stipulations that the parties did not intend to waive the right under the rule to make the objections that we are now considering, that to hold otherwise would be saying that the parties had stipulated to do that which they expressly stipulated they did not intend to do. It is also urged that because the respondent subsequently served the appellant with amendments to his proposed statement on appeal to be settled by the district court, that he thereby waived the right to make the objections to the notice. In the absence of any cited authority, we are unable to understand why the exercise of a statutory right to have the statement settled and made to conform to the truth in the lower court before appeal could operate as a waiver of the right to object to the notice of appeal because of irregularity in the filing and service thereof, which under the rule above quoted, could only be made after appeal. It is also suggested that the order of service and filing the notice of appeal is immaterial. This court has repeatedly held otherwise^ — -that the filing of the notice of appeal must precede or be contemporaneous with the service. (Lyon Co. v. Washoe Co., 8 Nev. 177; Johnson v. Badger M. & M. Co., 12 Nev. 261; Reese G. & S. M. Co. v. Rye Patch Con. M. & M. Co., 15 Nev. 341.) Adopting the language of the court in the case of Reese M. Co. v. Rye Patch M. Co., above cited, as the rule in this case, we must hold that “ in order to take and perfect an appeal, the party desiring to do so should first file his notice of appeal, next serve it.” * * * The court further says, in the same opinion: “There ought to be no difficulty in understanding this rule and none in following it; and, even if we were to *273 concede that, as an original proposition, the statute might well have been construed to mean something else, there would be no reason for adopting such a construction at this late day. We have a rule of practice which has been settled by a line of decisions in California and in this state, and which ought to be, if it is not, well understood by the profession. * * * For these reasons we would not feel justified in setting aside our former decisions upon the matter in question, even if we were better satisfied than we are that our construction of the statutes rests upon implications too far-fetched and reasons too insubstantial. In matters of practice like this there must be some rule, and even a poor rule uniformly maintained is better than no rule at all, or a rule subject to continual changes.” The notice of appeal having been filed after the same was served, and the objections of the respondent to the notice having been made in proper time, and not having been waived, the appeals will be dismissed. Let an order be entered accordingly.