Nellis v. Johnson

OPINION By the Court, Coleman, J.: Respondent has moved the court to remand the bill of exceptions to the trial court for amendment and correction. It is the contention of respondent, supported by affidavit, that the testimony of three certain witnesses, as set forth in the bill of exceptions, is contrary to the testimony of each of said witnesses given upon the trial; that the testimony of two other witnesses as set forth in the bill of exceptions is incomplete and does not set forth the true facts as testified to by the witnesses. In support of the motion, counsel for the respondent has filed an affidavit wherein it is stated that on the *18 12th of July 1935, counsel for appellant left in his office his proposed bill of exceptions; that at that time affiant was absent from Las Vegas, Nevada, where his office is maintained, and did not return until after the time had elapsed in which to file objections to the allowance and settlement of the bill of exceptions, or to suggest amendments thereto. It is further stated in said affidavit that the trial judge was of the opinion that he was without authority to change or correct said proposed bill of exceptions, in view of the fact that no objections were made or amendments proposed by respondent to said proposed bill of exceptions, and that it was his duty to sign said bill of exceptions as proposed. May 1, 1936. 57 P. (2d) 392. No counter affidavit was filed by appellant. Whether the application, if granted, would result in an amendment and correction of the bill of exceptions, or a new bill of exceptions, should the trial court conform to the views of respondent, we need not determine. Section 36, chapter 90 of Statutes of 1935, provides: “If a party shall omit or fail to serve and file his bill of exceptions within the time limited he shall be deemed to have waived his right thereto, and if a party shall omit to make objections as required to such bill of exceptions within the time limited he shall be deemed to have waived his right thereto.” This section is clear, and, as we view it, no discretion is vested in the court. Having failed to make objections to the bill of exceptions as served, though as a result of the absence of respondent’s attorney, respondent must be held to have waived all objections thereto, and to be foreclosed from objecting to it thereafter.' Sutherland v. Round et al. (C. C. A.), 57 F. 467. The motion is denied.