Bushard v. Washoe County

[218] OPINION By the Court, Eather, J.: This action was brought by respondent county seeking to condemn certain land owned by appellants. The matter was tried by the court, sitting without a jury, and oral decision in favor of respondent was rendered by the court on August 15, 1950. On August 22,1950, respondent served written notice of decision on appellants. Findings of fact, conclusions of law, and a judgment of condemnation were signed by the court and filed on September 11, 1950. No motion for a new trial was made at any time. On October 2, 1950, counsel for respondent and appellants stipulated that appellants' [219] have an extension of time within which to file a bill of exceptions on appeal, with a reservation by respondent of the right to move to strike the transcript of testimony on appeal at the proper time. On November 10,. 1950, appellants filed in this court a record on appeal consisting of: 1. A volume containing a transcript of testimony. 2. A volume called a bill of exceptions certified by the Clerk of the District Court as the papers on file in Action No. 128,289 in the Second judicial district court, and consisting of a judgment roll containing: Complaint. Answer. Findings of fact. Conclusions of law. Judgment of condemnation. And containing in addition: (a) Notice of decision. (b) Proposed findings of fact and conclusions of law. (c) Proposed judgment. (d) Objections to findings of fact and conclusions of law and proposed form of judgment. (e) Minutes March 10, 1950. (f) Minutes March 17,1950. (g) Minutes April 14, 1950. (h) Minutes April 19, 1950. (i) Minutes August 15,1950. (j) Minutes August 17, 1950. (k) Minutes September 8, 1950. (l) Minutes September 11, 1950. (m) Notice of appeal. (n) Statement of receipt of bond. Respondent moved this court to strike from appellants’ record on appeal the transcript of testimony and the documents (a) to (n). Appellants contend that there is not sufficient evidence to support the judgment of condemnation. It is the [220] settled law of this state, established by a long line of decisions, that a motion for a new trial must be made and determined before an appeal may be taken on the ground of insufficiency of evidence to support the judgment. Neill v. Mikulich, 57 Nev. 307, 64 P.2d 612; McGill v. Lewis, 61 Nev. 28, 111 P.2d 537, 116 P.2d 581, 118 P.2d 702; Snyder v. Garrett, 61 Nev. 85, 115 P.2d 769; In re Benson’s Estate, 62 Nev. 376, 151 P.2d 762; Craig v. Harrah, 65 Nev. 294, 195 P.2d 688. We are not here concerned with what use shall be made of the transcript once an appeal is properly perfected; nor are we concerned here whether the transcript can be considered when an appeal is taken from the judgment roll alone. The issue here is whether this transcript, submitted as a bill of exceptions, is properly before the court at all. Since the appellants failed to move for a new trial at any time, the transcript is not properly before this court. Snyder v. Garrett, supra. The documents (a) to (n), submitted by appellants as a part of their bill of exceptions, were never settled and allowed by the judge or the court below; nor were they settled or allowed by stipulation of the parties. This is a necessary step in an appeal where the record of proceedings is submitted as a bill of exceptions. N.C.L. 9385.81, 1931-1941 Supp. The method is clearly set forth by our statutes, and the requirement is mandatory. N.C.L. 9385.84, 9385.85, 1931-1941 Supp. Appellants’ record on appeal, is, therefore, limited to those documents comprising the judgment roll. What constitutes the judgment roll is set forth by statute. N.C.L. 8829, 1929. Conclusions of law are not a part of the judgment roll. Harper v. Lichtenberger, 59 Nev. 495, 92 P.2d 719. Minutes and the opinion and decision of the district court are not a part of the judgment roll. Documents, papers or exhibits which are not settled or [221] allowed by the court or by stipulation are not a part of a bill of exceptions. Craig v. Harrah, 65 Nev. 294, 195 P.2d 688; State ex rel. Dept. of Highways v. Pinson, 65 Nev. 510, 199 P.2d 631; Dillon v. Dillon, 67 Nev. 428, 220 P.2d 213. Appellants submit that there is a variance between the oral pronouncement of the court and the final written entry of judgment, and that the time for filing motion for a new trial has not begun to run since no notice of decision has ever been given, based upon such written judgment. In support of this contention counsel for the appellants refer to the case of Mortimer v. Pacific States Savings & Loan Company, 62 Nev. 147, at page 153, 145 P.2d 733, where the court stated that where the minute order of the decision of the trial court is at variance with the formal judgment filed thereafter, the latter must prevail. We are of the opinion that the rule announced in that opinion to the effect that the written order should prevail over the minute entry is correct. This because of the fact that such rule conforms to the practice followed for many years and accorded recognition by the court and the bar; that is to say, the solemn decree of a court bearing the signature of the judge thereof, is recognized as the judgment of the court until changed by appropriate proceedings instituted therefor. We find nothing in the Nevada case inconsistent with such practice. There is no question but what the pronouncement by the court from the bench of a judgment is the rendition of the judgment by the court. But in this case we are not concerned with the question of what shall be accepted by this court as evidence of what judgment was rendered; we are concerned with the question of when the judgment was rendered. The instant case is distinguishable on the facts from Mortimer v. Pacific States Savings & Loan Company, supra. October 26, 1951. 236 P.2d 793. Appellants were served with the written notice of decision on August 22, 1950, and the time for filing motion for new trial began from that date. Austin v. Dilday, 55 Nev. 1, 23 P.2d 504. But any arguments by appellants as to the time when motion for a new trial should be made are without merit since no motion for a new trial appears in the record before us. In his oral argument and in his brief opposing the motion to strike, counsel for appellants asserted that appellants had filed a notice of intention to move for a new trial on September 14, 1950, but that the court below refused to hear said motion. Examination of the certified record fails to disclose such a notice or order of refusal by the court to hear a motion for a new trial. Nor has this been made a ground for appeal. Appellants have placed themselves in the position of asking this court to review a record on appeal while setting forth that it is not complete or accurate. The motion to strike as to the notice of appeal and undertaking on appeal is denied for the reason that the original of such documents are required to be filed with the clerk of this court and this has been done. Coykendall et al. v. Gray et al., 53 Nev. 113, 293 P. 436. The motion to strike the transcript of testimony is granted. The motion to strike the documents lettered (a) to (1) is granted. It is so ordered. Badt, C.J., and Merrill, J., concur.