Henningsen v. Tonopah & Goldfield Railroad

By the Court, Talbot, J.: Respondent moves to strike the statement and transcript from the files and to dismiss the appeal upon the ground that no copy of the statement or transcript was served. The record was filed in this court on February 23,1909, and the notice of motion was not filed or served until the 19th day of April. After the filing of the record and previous to the noticing of the motion, the attorneys for the respective parties without reservation stipulated on the 13tli of March that the appellant have additional time "within which to prepare, print, serve, and file appellant’s opening brief on said appeals and on April 2d the respective parties stipulated without reservation that "plaintiff and respondent have to and including the 28th day of April, 1909, within which to prepare, serve and file in the above-named court in the above-entitled action the brief of said plaintiff and respondent on appeal!’ These stipulations, recognizing the appeal and reserving no right to move to strike the record from the files or to dismiss the appeal, are a waiver to any objection or motion to strike or dismiss on the ground that a copy of the statement or transcript had not been served, if any such service were necessary. (Curtis v. McCullough, 3 Nev. 213; Bliss v. Grayson, 24 Nev. 432; Smith v. Wells Estate Co., 29 Nev. 416, and cases cited.) The motion is denied.