Hoffman v. Owens

By the Court, Norcross, C. J.: The record on appeal in this cause does not contain an undertaking on appeal, but, in lieu thereof, counsel for the [483] respective parties have stipulated "that the giving of an undertaking on' appeal by the defendants and appellants in the above-entitled action be, and the same is hereby, waived, and the said appeal may be considered and heard by the Supreme Court of the State of Nevada in all respects as if an undertaking on appeal had been duly filed!’ Section 341 of the civil practice act (Comp. Laws, 3436) provides: "To render an appeal effectual for any purpose, in any case, a written undertaking shall be executed on the part of the appellant by at least two sureties,” etc. In the case of Marx v. Lewis, 24 Nev. 306, this court specifically held that air undertaking on appeal could hot be'waived. We quote from the opinion in that case the following excerpt: "The method of procedure in taking appeals is regulated by statutes. Section 327 of the civil practice act (Comp. Laws, 3422) in direct terms confers authority upon this court to review judgments and orders from which appeals' can be taken in the manner prescribed in the act, 'and not otherwise.’ * * * Under the language used in these sections we have no power or authority to review any question presented in this record. The attempt to stipulate a waiver of the notice and undertaking can be of no effect, for the reason that such attempt is doing that which the statute says cannot' be done. The language used 'and not otherwise,’ precluded the intention of conferring authority to 'review appeals under such stipulation as completely as it would were such intention expressed in direct terms. The same may be said of the language used in section 341, sivpra, requiring the undertaking to 'render an appeal effectual for any purpose.’” Authorities may be found that an undertaking upon, appeal may be waived, and a number of these so holding are cited in the prevailing opinion in the case of Smith v. Wells Estate Co., 29 Nev. 411, 416. Whether or not any of the authorities cited are opposed to the decision of the question heretofore rendered by this court would depend upon the provisions of the statute controlling in the particular case. Authorities also exist taking the same position as the Marx v. Lewis case, swp'a; for example, the case of Santom v. Ballard, 133 Mass. 464. The court is inclined to the view that a more liberal [484] rule in matters pertaining to perfecting appeals would be advantageous, but we are not at liberty, in view of the statute, to declare such rule, especially so, after this court has construed the statute in question as it did in the Marx v. Lewis case. If the statute in this respect is more strict than it ought to be, the remedy is with the legislature. For the reasons given, the appeal is dismissed. Sweeney, J.: I concur.