Hart v. Spencer

By the Court, Norcross, J.: The notice of appeal in this cause specifies that the appeal is taken from the judgment and order of the trial court sustaining defendants’ motion dismissing the cause of action from the calendar. The transcript on appeal is in two'volumes. Volume 1 contains apparently the originals of papers filed in the case in the lower court, excepting a paper designated "Affidavit on Motion for a New Trial and on Appeal,” which last-mentioned document comprises volume 2. Respondents have moved to strike out and discharge from the record on appeal all of volume 2, and all the papers included in volume 1, excepting the complaint, demurrer, summons, and judgment. An affidavit on appeal is unknown to the practice in this state, and, as there is no appeal from an order denying a motion for a new trial, the affidavit in [287] question can'have no proper place in the record. (Comp. Laws, 3427; Alexander v. Archer, 21 Nev. 31.) The motion to strike out is allowed. The record on appeal from the judgment does not contain a statement of the case or bill of exceptions, either attached to the judgment roll or otherwise, and consequently; the only thing that could be considered upon the appeal would be the judgment roll. While the motion to strike out mentions the judgment as one of the papers excepted from the motion, we do not find in the record, certified to by the clerk as containing the judgment roll, any document purporting to be the judgment or a copy thereof, nor a copy of the order dismissing the action. There being nothing before the court for consideration, the appeal must be dismissed, and it is so ordered. Talbot, G. J.: I concur. Sweeney, J., did not participate, the case having been submitted prior to his ascending the bench.