Foley v. Silvagni

[94] OPINION On Motion to Dismiss Appeal By the Court, Badt, J.: Respondent has moved to dismiss appellant’s appeal on the ground that it is not taken from any final, appeal-able judgment or order. The notice of appeal is from what is designated as “Court’s Decision” filed June 2, 1959, which, after reciting certain preliminary matters, orders that the petition of Foley for letters testamentary be denied and that Michele Silvagni be appointed administrator with the will annexed and that letters of administration with the will annexed be issued to him upon his taking the oath of office and giving bond as required by law in the sum of $75,000. These particular orders are quoted in haec verba in the notice of appeal. NRS 155.190 provides that an appeal may be taken to the supreme court “from an order or decree: 1. Granting or revoking letters testamentary or letters of administration. * * * 13. Refusing to make any order heretofore mentioned in this section * * Respondent contends that an order filed June 3, 1959, [95] designated “Order Denying Letters Testamentary to Thomas A. Foley,” is the only final order from which Foley could have appealed, and purports to show the existence of such order by attaching a certified copy thereof to his motion. The asserted order of June 3,1959 is not included in the record on appeal nor was it designated either in appellant’s designation of record or respondent’s counter designation (Rule 75(a) NRCP). No diminution of record has been suggested (id. 75(h)), nor does it appear that appellant was ever served with a copy of said order of June 3,1959 or with a notice thereof (Rule 5 (a) NRCP). Even if we may consider the asserted order of June 3, the mere fact that it is later in time than the order of June 2 would not in itself detract from the finality of the order of June 2 if the latter is otherwise a final, appealable order. Such we hold it to be. It is a written order, signed and filed by the district judge, denying Foley’s petition for letters testamentary. The mere fact that the document is entitled “Court’s Decision” does not alter its obvious and patent character. The motion to dismiss the appeal and the motion to strike the record on appeal, coupled therewith, must be denied.