Rickey v. Douglas Milling & Power Co.

[345] By the Court, DUCKER, J.: This is an appeal from a judgment and from an order denying a motion for a new trial. Respondents moved to dismiss the appeal from the order, upon the grounds set out in their notice of motion. Briefly stated, these grounds are as follows: That there is on file in this cause no statement on appeal or bill of exceptions properly settled, allowed, approved, or certified to be correct by the judge of the court in which the action was tried or by the court, as required by law. Respondents also moved to strike the purported statement on appeal and bill of exceptions, on the same grounds. 1. What appellant contends is a sufficient record in this case upon which its appeal from the judgment and order denying its. motion for a new trial can be maintained consists of two volumes, labeled, respectively, “Statement on Appeal.” Volume 1 is certified by the clerk of the court in which the action was tried, and contains the judgment roll and other papers. Volume 2 is a transcript of the proceedings had and of the testimony given at the trial, certified by the reporter pro tempore of the court to be a full, true, and correct statement of the testimony given and proceedings had in said court upon the trial of the action. The designation of volumes 1 and 2 as statement on appeal is a misnomer, for neither has been settled nor agreed upon as required by the old practice concerning statements on appeal. 2. Volume 2 cannot be considered as a bill of exceptions, because it has not been settled and allowed by the judge or court, or by stipulation of the parties, as required by law. 3. In addition to the judgment roll, and other papers which have no bearing upon the motion before us, volume 1 contains three documents, denominated, respectively, “Bill of Exceptions” and “Supplemental Bill of Exceptions.” These are signed by the attorneys for the appellant, and purport to contain objections made by counsel for appellant, rulings of the court thereon, [346] and the exceptions taken to such rulings. They are sworn to by one of the attorneys for appellant. None of these so-called bills of exceptions purports to contain the evidence adduced at the trial, nor has any of them been settled or approved by the trial judge or the court or by stipulation of the parties. 4. As there is no bill of exceptions in the record on appeal, this case is controlled by the decision in Mexican Dam and Ditch Co. v. Schultz, 45 Nev. 260, 201 Pac. 548. We there held, on an appeal from an order denying a motion for a new trial, that the failure of appellants to bring up the errors based upon any grounds for a new trial by a statement or bill of exceptions deprived them of the right to have their case considered upon the merits. On the authority of this holding, therefore, the motion to dismiss the appeal from the order denying the motion for a new trial is granted. As to the appeal from the judgment, we perceive no error in the judgment roll, and the judgment is affirmed.