Kingsbury v. Copren

By the Court, Sanders, J.: 1. It appears from our opinion that the motions to dismiss the appeals from the order denying the motion for a new trial and from the judgment were summarily denied. It also appears that no mention is made in the opinion of the motion of respondent to strike the bill of exceptions. On petition for rehearing, our attention is directed to the fact that it was admitted in open court that the appeal from said order was not taken within sixty days from the entry thereof, as required by section 5329 of the Revised Laws, as amended by the statute of 1913 (Stats. 1913, p. 113). It is clear that the motion to dismiss the appeal from the order denying the motion for a new trial should have been sustained, and we gladly correct the error and now sustain the motion. 2. The motion to strike the bill of exceptions was based upon the ground that the same was not settled and allowed as required by law. Upon further consideration of the record and upon the authority of Capurro v. Christensen, 46 Nev. 249, 209 Pac. 1045, we are of opinion that the motion to strike should have been sustained; and it is now adjudged and ordered that upon motion of respondents the bill of exceptions, made a part of the judgment roll, be, and the same is hereby, stricken as not having been properly settled and allowed. [469] 3, 4. The petitioner seems to concede that the law of this case is that declared upon the original appeal (43 Nev. 448, 187 Pac. 728, 189 Pac. 676), and while she is apparently satisfied that judgment should not go against the defendant both in his individual and representative capacities, yet she insists that, if the judgment is correct against the defendant in either capacity, it is the duty of this court upon the evidence to affirm the same. While we do not deem the suggestion that we should consider and determine if the judgment is right against .the defendant in either capacity well taken, yet if it were we could not do this in view of the fact that the evidence is not before us; the purported bill of exceptions containing the evidence having been stricken upon the motion of the defendant. The petition for rehearing is denied.