City of Fallon v. Churchill County Bank Mortgage Corp.

[REPORTER'S NOTE — The following opinion was not reported in Volume 56 for the reason that it was deemed advisable to await the final disposal of the matter and report all phases of the case in the same volume.] *Page 2 The proposed bill of exceptions was not served on respondent until April 15, 1935, at least fifteen days after expiration of the twenty days allowed by law therefor. Section 9398 N.C.L. And it was never filed in the court below. Obviously, section 9386 N.C.L. relied upon by respondent does not apply to a case where a proposed bill is not filed in the trial court at all, and does not apply to a case where such bill is served after expiration of the time allowed therefor, but applies only where the proposed bill is filed and served within time, but omits material facts, etc., in which case the adverse party may object on such grounds. Johnson v. Johnson, 54 Nev. 453,22 P.2d 128. "Tendered bills of exceptions not filed within the time allowed by statute (section 9398 N.C.L.) will be stricken on motion." Comstock Phoenix Mining Co. v. Lazzeri, 55 Nev. 421,36 P.2d 360. "The time for filing a bill of exceptions having expired, the failure to file it in time was jurisdictional, and there could be no waiver." Johnson v. Johnson, supra. Appellant's alternative request for leave to file herein *Page 3 a certified copy of the judgment roll is premature, in the absence of the proper motion with notice of ground therefor, etc., and in any event the request is without legal basis, under rule II of this court. Treating the instant case as one where there is no bill of exceptions, the transcript of the record here could consist only in a certified copy of the judgment roll. It is clear that the thirty days time for filing such judgment roll transcript has long ago expired, as the appeal was "perfected" by filing and serving notice of appeal on April 15, 1935. The 1935 Statutes, p. 205, sec. 32, sets forth the procedure defendant shall follow to make its objections to a proposed bill of exceptions; and section 36 of the same act states that "if a party shall fail to make objections as required to such bill of exceptions within the time limited he shall be deemed to have waived his right thereto." Section 9386 N.C.L. requires the adverse party, if he wishes to object to the allowance and settlement of a bill of exceptions, to serve and file a "statement specifically pointing out" wherein said bill is defective. State ex rel. Gray v. District Court, 51 Nev. 412, 278 P. 363. Counsel not having pursued the statutory method of offering amendments, if the proposed bill of exceptions were not correct, and having permitted the court to settle and authenticate it as it was presented, they are now bound by the same as it was settled, and so is this court. Karemius v. Merchants' Protective Association (Utah), 235 P. 881. It is the policy of the law that cases should be disposed of in this court on their merits when possible. Section 9401 N.C.L.; Orleans H.M. Co. v. Le Champ, etc. M. Co., 52 Nev. 85,280 P. 887; Shirk v. Palmer, 48 Nev. 449, 232 P. 1083; Johns-Manville v. Lander County, 48 Nev. 244, 239 P. 387; Lindley Co. v. Piggly Wiggly Nev. Co. (Nev.), 22 P.2d 355; Coykendall v. Gray,53 Nev. 113, 293 P. 436; Stats. 1935, p. 202, sec. 27. *Page 4 However, if this court shall deem that the bill of exceptions should be stricken because it was not filed within twenty days of the entry of judgment in the district court, and further deem that the judgment roll as the same appears in such bill of exceptions is not properly or sufficiently certified, appellant prays that the notice of appeal attached to the bill of exceptions be not struck, but be retained by this court, and that appellant be permitted to file herein a certified copy of the judgment roll. OPINION This matter is before the court on the motion of respondent to strike from the files and records of the court the document filed by appellant and designated "Bill of Exceptions," upon the ground that the same was never filed in the lower court. Section 9398 N.C.L. provides that a party to an action may serve and file a bill of exceptions. The same section contemplates that a transcript of the proceedings, certified, may be filed in lieu of a bill of exceptions. Paragraph 2, section 8829 N.C.L. also contemplates the filing of a bill of exceptions. Counsel for appellant, upon the hearing, did not contend that it is not necessary that a document, to become a bill of exceptions, be filed. It was his contention that the document in question was in fact filed with the clerk of the lower court, and that it remained in his possession until about the time it was filed in this court. 1. It is the universal practice in this jurisdiction, so far as we recall, for the clerk of the trial court to indorse upon a bill of exceptions, when filed, a memorandum of its filing and the date thereof, and sign it as such clerk. There is no such indorsement upon the document in question, and there is no showing of any kind, except the bare statement above mentioned, of such filing. In *Page 5 opposition to the statement made, counsel for respondent exhibited a letter from the clerk of the lower court stating that no bill of exceptions had been filed in his office in the matter. Neither of these unsupported statements can be considered. It is the general rule that it must appear from the record that the bill of exceptions, if any, is filed within the time fixed by law. 4 C.J. 61. 2. It not appearing that the bill of exceptions was filed in the lower court, it necessarily follows that the motion to strike must be granted. 3. Upon the hearing of the above matter counsel for appellant tendered for filing two copies designated "Judgment Roll." No notice was given of the proposed offer, nor was any showing made as a basis for such offer, and counsel for respondent objected thereto. Rule II of this court provides that transcript of record on appeal, when there is no bill of exceptions in the case, shall be filed within thirty days after the appeal is perfected. There is no showing when the appeal was perfected, other than what appears in the so-called "Bill of Exceptions," nor any showing of any kind as a basis even for the consideration of the offer by the court. If we accept the showing in the so-called "Bill of Exceptions," the time for filing a judgment roll had expired long prior to the making of the tender mentioned. 4. Counsel for appellant direct our attention to rule VII of this court relative to the correction of errors or defects in the transcript on file; also to numerous decisions of the court. Neither the rule nor any of the decisions are in point. The rule in question clearly contemplates the correction of defects and errors of a transcript properly filed, and filed within the time limit. There being no bill of exceptions before us, nor a judgment roll, there is nothing to correct or amend. Had there been a motion, on due notice, to file the judgment roll, supported by an affidavit showing excusable neglect, or other satisfactory grounds, a different situation would be presented. Counsel call our attention, also, to Shirk v. Palmer, *Page 6 48 Nev. 449-451, 232 P. 1083, 236 P. 678, 239 P. 1000. In that case there was a motion to dismiss the appeal, but there was not attack upon the bill of exceptions when that motion was made, and the first opinion in that case treated the record as having a bill of exceptions, properly settled, containing all of the pleadings, judgment, notice of motion for a new trial, etc. Hence that opinion is not in point here. It will appear from a later opinion in that case (48 Nev. 451 to 457, 236 P. 678) that after the first opinion was filed a motion was made to strike the bill of exceptions. The distinguishing feature between the situation presented on the first hearing in the Shirk-Palmer case, and in this matter, is that in it counsel for respondent treated the so-called bill of exceptions, which contained all the pleadings, etc., as being properly before the court, whereas in this matter respondent attacks the only document on file, which we hold has no place in the record, hence the appellant is in default and has nothing here as a basis for correction or amendment. In the Shirk-Palmer case we took the position that since there was a bill of exceptions in the record, there was a record that might be amended pursuant to the statute mentioned, but we cannot correct or amend a record which must be stricken. 5. It is true, as contended by counsel, that the court is reluctant to make any order which will prevent the hearing of an appeal upon its merits, but we cannot go to the length of ignoring the rules of procedure in doing so. There being no showing, the offer must be denied. It is ordered that the "Bill of Exceptions" be stricken. It is also ordered that appellant's tender of the judgment roll be denied. *Page 7