Botsford v. Van Riper

By the Court, SweeNEY, J.: This is a motion to dismiss the appeal, and also subject thereto a motion to strike certain portions of the record. The record on appeal in this case was filed April 3, 1909. On April 17th following a stipulation, signed by respective counsel, was filed giving appellant until May 5th in which to file their opening brief. On May 3d an additional stipulation was filed, signed by respective counsel, extending the time until May 20th. On May 19th appellants filed their opening brief. On May 31st a stipulation was filed, signed by respective counsel, extending the time thirty days for respondents- to file their' brief in reply. On June 30th counsel for respondent requested and obtained the order of the chief justice extending counsel for respondent until August 2d to file their brief in reply. On July 2d a stipulation, signed by respective counsel, was filed, extending the time in conformity to the last-mentioned order of the chief justice. On July 17th counsel for respondent filed their motion to dismiss the appeal, and also said motion to strike portions of the record. On July 19th stipulation signed by respective counsel was filed, extending; the time for respondents to file their reply brief to November 3d-, and that the motions to dismiss and to strike might be set down for hearing before this court on September 20th. On July 24th counsel for appellant filed a notice of motion and affidavit on motion to correct the record, and upon said date obtained an order from the court shortening the time for the service of such notice. On the 30th day of July the said motion to correct the record came on for — 222 — hearing before the court, and after argument by respective counsel the court made the following order: "The motion of the appellant Charles H. Botsford to correct and supply certain errors and defects in the records on appeal herein coming this day regularly on to be heard before this court upon the notice of said motion, written motion and suggestion, and affidavit on motion, on file herein, and upon all the records on appeal herein, and the original papers filed herein as the records on appeal herein, and upon proof of due service of the notice of said motion on file herein, and C. L. Harwood and Paul C. Morf appearing as attorneys for the appellant, and Messrs. Detch & Carney and Messrs. Mack & Green appearing as attorneys for respondents L. C. Van Riper and Joseph Plutchinson, and filing affidavits in opposition to said motion, and good cause appearing therefor, it is hereby ordered, that Joseph Hamilton, the clerk of the district court of the Seventh Judicial District in and for the County of Esmeralda, State of Nevada, be, and he is hereby, directed: "(l) To certify, in the manner and form and as required by section 3862 of the Compiled Laws of the State of Nevada, the original papers in said district court in that certain action commenced therein, entitled 'L. C. Van Riper and Joseph H. Hutchinson, Plaintiffs, against Charles H. Botsford, James Davis, J. P. Loftus, and James Davis, doing business under the firm name and style of Loftus & Davis, Goldfield Mohawk Mines Company, Goldfield Consolidated Mines Company, Combination Mines Company, George S. Nixon, and George Wingfield, Defendants,’ and now on appeal to this court; "(2) To so certify and transmit to the clerk of this court the original amended answer filed by said defendant and appellant Charles H. Botsford to the complaint in said action in said district court, and the order of said district court overruling the demurrer of said Botsford to the said complaint, and the order of said district court overruling the motion of said Botsford for a new trial in said action, and, in case said orders of said district court, or either of them, are minute orders, and are of record in said action only in the minutes of said court containing entries affecting other cases in said court, to certify and transmit to the clerk of this court, in conformity — 223 — with the provisions of sections 3862 and 3863 of the Compiled Laws, certified copies of said minutes containing said order or orders of said court; " (3) To make up and attach together the judgment roll in said action, as required by section 3300 of the Compiled Laws, and to annex the same to the statement on appeal of the appellant Botsford herein, and also to annex thereto the demurrer filed by said Botsford to said complaint, and the order of said court overruling said demurrer, or a duly certified copy of the minutes of said court containing said order and the notice of appeal and undertaking on the appeal of said appellant Botsford from the final judgment in said action, and to number and index the said papers, and to certify them to be the original papers in said district court in said action, and to constitute the record on the said appeal to this court from said final judgment, and thereupon to transmit and return them to the clerk of this court, all as. required by sections 3862 and 3863 of the Compiled Laws; " (4) To annex the order of said district court overruling the motion for a new trial in said action of said defendant and appellant Botsford, or a duly certified copy of the minutes of said court containing said order, to the statement on motion for a new trial of said appellant Botsford herein, and also to annex thereto the notice of appeal and undertaking on the appeal of said appellant Botsford from the said order of said court, and to number and index the said papers, and to certify them to be the original papers in said district court in said action, and to constitute the record on the said appeal to this court from said order overruling said motion for a new trial, and thereupon to transmit and return them to the clerk of this court, all in conformity with sections 3862 and 3863 of the Compiled Laws. And it is hereby further ordered that said records on said appeals, or said original papers, be returned by the clerk of this court by express to the said clerk of said district court for the purpose of carrying out and executing this order, and performing the acts herein directed to be by him done or performed. And it is hereby further ordered that upon the certification and transmission of the said original papers and records on appeal by the clerk of said — 224 — district court to the clerk of this court, as aforesaid, the said original papers and records on appeal, so returned or transmitted to the clerk of this court hereunder, shall be received, and retained by the clerk of this court as offered for filing, until the further order of this court herein. And it is hereby further ordered, that before the said records on appeal or original papers are expressed to said clerk of said district court, the clerk of this court shall file a complete list of all the said papers now on file in this court in the order in which they are now contained in said records on appeal, and that all of said papers constituting said records on appeal, including any and all papers now on file herein with the clerk of this court, including.the clerk’s certificate thereto, be and remain in the condition in which they now are, and be returned to the clerk of this court, as aforesaid. And it is further ordered, that all objections hereto, of respondents herein, be and the same hereby are, reserved for submission to and determination by this court until the hearing and determination of the motions of respondents to diminish the record and to dismiss said appeals now on file herein, and that all of said matters and motions be heard and determined together upon the hearing of said motions. Done in open court, at Carson City, Nevada, this 31st day of July, A. D. 1909.” Pursuant to this order the records were sent by the clerk of this court to the clerk of the court below, and such record was corrected subject to the conditions of the foregoing order, and the record returned to the clerk of this court for filing. Thereafter, on the 20th day of September, 1909, pursuant to agreement of respective counsel, the motions to dismiss and to strike came on for hearing. The questions presented by the several motions were orally argued, and time thereafter taken in which to file briefs. The question of law presented upon these several motions, with the exception of the point raised by counsel for respondent that the undertaking on appeal was insufficient, are sufficiently indicated by the order above quoted. ■ If the order is one which should be approved by this court, and the record as amended be directed to be filed as the correct record on appeal, then the motions to dismiss and to strike should, in the main, be denied, unless we find — 225 — the objections to the sufficiency of the undertaking are well taken. The application to amend the record is in conformity with the provisions of rule 7 of this court, which reads: "For the purpose of correcting any error or defect in the transcript from the court below, either party may suggest the same, in writing to this court, and, upon good cause shown, obtain an order that the proper clerk certify to the whole or part of the record, as may be required, or may produce the same, duly certified, without such order. If the attorney of the adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion, except when a certified copy is produced at the time, must be accompanied by an affidavit showing the existence of the error or defect alleged.” In the recent case of State v. Hill (decided in this court December 31, 1909), 32 Nev. 185, we said: "This court has adopted a liberal practice in the granting of applications to amend defects in transcripts; but, where no move is made to obviate a valid objection, there is no other alternative than to grant it.” In the case of Christensen v. Floriston Pulp and Paper Company, 29 Nev. 552, a motion was made to dismiss the appeal "upon the ground that it affirmatively appears from the record that no notice of appeal was ever given, as required by law, and, further, that no undertaking on appeal has been executed by appellant!’ In that case, as in this, application was made by counsel for appellant to amend or correct the record by adding thereto the notice and undertaking on appeal, which appeared to have been mislaid and overlooked by the clerk in the preparation of the transcript on appeal. The motion to dismiss was denied, upon the ground that appellants by supplying the omission had substantially complied with the provisions of rule 7, supra. We think, also, that the point raised by counsel for appellant that the respondents, by entering into numerous stipulations heretofore referred to, which reserved no right to object or except to the sufficiency of the record, waived the right to move to dismiss, or to strike upon any grounds that were not jurisdictional. (Henningsen v. Tonopah & Goldfield R. R. Co., 32 Nev. 51; Smith v. Wells Co., 29 Nev. 416; Bliss v. Grayson, 24 Nev. 432; Curtis v. McCullough, 3 Nev. 213; Rule 8 of — 226 — Supreme Court of Nevada.) It manifestly a-ppears, however, that the transcript or record on appeal from the order denying the motion for a new trial contains many papers which have no proper place in the record. It would appear that the clerk of the lower court had certified up all of the files of the case, regardless of whether they constituted any portion of the statement on motion for a new trial or on appeal, or appear to have been used upon the hearing of the motion for a new trial. This court, in the case of Hoppin v. First National Bank, 25 Nev. 90, said: "The respondent also asks us to strike out of the record certain affidavits in support of the motion for new trial, offered under the fourth subdivision of section 3217 of -the General Statutes. This motion must prevail. The affidavits are not shown, by the indorsement of the judge or clerk, to have been read or referred to on hearing of the motion, as required by the express terms of that section, and are therefore no part of the record.” (Gen. Stats. 3219; Dean v. Pritchard, 9 Nev. 232; Albion Con. M. Co. v. Richmond M. Co., 19 Nev. 225; Comp. Laws, 3292.) The undertaking on appeal in this case was given by the United States Fidelity and Guaranty Company, under the provisions of that certain act of the legislature entitled "An act to facilitate the giving of bonds and undertakings required by law)’ approved February 26, 1887 (Stats. 1887, p. 86, c. 84), as amended by Stats. 1903, p. 63, c. 42, which reads: "Any company incorporated and organized under the laws of any state of the United States for the purpose of transacting business as surety on obligations of persons, or corporations, or state, county, or township officers, and which has complied with all the requirements of the law regulating the admission of such companies to transact business in this state, shall, upon production of evidence of solvency and credit satisfactory to the judge, head of department, or other officer or officers authorized to approve such bond, be accepted as surety upon the bond of any person, or corporation, or state, county, or township officer required by the laws of this state to execute a bond, and if such surety company shall furnish satisfactory evidence of its ability to provide all the security required by law, no additional security may be exacted, but other security — 227 — may, in the discretion of the official or officials authorized to approve such bond, be required and such surety company may be released from its liability on the sáme terms and conditions as are by law prescribed for the release of individuals, it being the true intent and meaning of this act to enable corporations created for that purpose to become surety on bonds required, subject to all the rights and liabilities of private parties” Upon the part of respondent it is contended that this undertaking is of no validity as an undertaking on appeal, for the reason that it is not in accordance with the provisions of the practice act (Comp. Laws, 3436, 3443), requiring the undertaking on appeal to be furnished by two sureties, who shall make and attach to the undertaking an affidavit' that they are severally worth the amount, for which they became surety. Upon the part of appellant it is contended that the act, the title of which is quoted supra, is a general act, under the provisions of which it is optional with the appellant to furnish an undertaking with two personal sureties as provided in the civil practice act, or to furnish the undertaking of a surety company which may be accepted as sole surety, and that such surety undertaking does not require an affidavit in its support. It is further contended by appellant that, even if appellant’s objection to the form of the undertaking could have been considered well taken, if interposed in time, they have waived the right now to question its sufficiency. Several appeals have come to this court with undertakings similar to that furnished in this case, in which the question of the validity of the undertaking was not interposed. In one or two cases the question was raised; but, as this court found it could affirm the judgment upon the merits, the question was not determined. The importance of this point to the practice of this state is such that we deem it should now be determined, and hence we shall disregard the contention that respondents have waived the right to question the sufficiency of the undertaking. A number of states have adopted statutes similar to, but not identical with, that under which the undertaking in this case was given, but a diligent search has only discovered a few cases in which the point has been considered. The following are all of the cases which we have been able to — 228 — find which have considered the sufficiency of an undertaking on appeal furnished by a surety company as sole surety: Nicholas v. MacLean, 98 N. Y. 458; Earle v. Earle, 49 N. Y. Super. Ct. 57; Hurd v. Hannibal R. R. Co., 67 How. Prac. (N. Y.) 516; Id., 33 Hun (N. Y.), 109; Cramer v. Tittle, 72 Cal. 12, 12 Pac. 869; King v. Pony Gold Min. Co., 24 Mont. 470, 62 Pac. 783. All the foregoing cases, excepting the first (98 N. Y. 458), have held such undertakings to be sufficient. The effect of the Nicholas case was to overrule or reverse the two decisions rendered a short time previous by the two New York courts of inferior appellate jurisdiction, but the Opinion nowhere refers, either directly or indirectly, to these other decisions, which appear to have considered the question as fully and completely as did the court of appeals in the Nicholas case. In any event the New York statute under consideration in the cases cited did not contain a provision similar to the following, which appears in our statute: "And if such surety company shall furnish satisfactory evidence of its ability to provide all the security required by law, no additional security may be exacted.” The Montana statute, construed in the King case, supra, is possibly clearer in its provisions than those contained in the Nevada or California statutes, but the purpose designed to be accomplished by the act is, we think, manifestly the same. The Montana court cites the Cramer case and the Hurd case, supra, with approval. The California statute is more nearly like ours than either the New York or Montana statutes. In the Hurd case, supra, the undertaking on appeal was given by a surety company as sole surety, and the respondent moved to dismiss the appeal upon the ground that no sufficient undertaking had been filed. The court disposed of the motion in the following brief opinion: "We are of opinion that the undertaking in this case is valid. The statute is a general law, and not an amendment to the code of civil procedure in the sense of the provision of the constitution referred to. The statute is constitutional.” In all of the state courts which have heretofore had occasion to pass upon these statutes the provisions of their civil practice acts were substantially the same as ours, requiring two sureties and an affidavit of the — 229 — sureties. In every instance the validity of the statute has been upheld as a lawful exercise of the legislative power; the court of appeals of New York alone holding, in effect, that such a surety company could not become sole surety. But, as we have heretofore pointed out, the language of the New York statute is not as broad as that of this state. The statutes were never intended to amend or repeal the provisions of the civil practice act, providing for undertakings on appeal, but only to provide an additional method of furnishing such undertakings at the option of the appellant. In almost every instance where an official bond is required of an officer in this state the statute requires two sureties, and the same objection here interposed would apply with equal force in the case of such bonds. The motion to dismiss the appeal is denied. With the exception of the miscellaneous papers not certified as having-been used on the motion for a new trial, and not forming a part of the statement on motion for a new trial, the motion to strike is denied. AH miscellaneous papers not certified as having been used on the motion for a new trial, and not forming a part of such statement, are ordered stricken from the transcript on file. With the exception of the papers so stricken, the transcript on appeal from the judgment, and from the order denying the motion for a new trial, as amended, will stand as the record on appeal,in this cause. It is so ordered.