[No. 850.]

#### LOUIS SOLOMON et al., Respondents, *v.*M. FULLER et al., Appellants.

New Trial — When Should not be Granted. — Anew trial ought not to be granted on a motion to set aside a verdict, merely because the court had erred in finding a fact in some preliminary proceeding in the case.

Amendment or Judgment after Adjournment of Term. — The court has no power to amend a judgment after the adjournment of the term unless there is something in the record to amend by.

Appeal from the District Court of the Seventh Judicial District, Lincoln County.

*64The facts sufficiently appear in tlie opinion.

*George 8. Sawyer,*for Appellants:

I. Tbe errors appearing in the judgment-roll necessitate a reversal. The court could not proceed after the death of Cardenas without repairing the breach caused by his death.

II. The court erred in amending the judgment after the term had expired at which it was rendered, upon its own motion, and when there was nothing in the record to amend by. (3 Cal. 255; 9 Id. 172; 19 Id. 227; 25 Id. 79; 27 Id. 791; 33 Id. 780.)

III. The amendment changed the parties plaintiff to the action, and ought not to have bee'n allowed. (2 Tillinghast *&*Shearman Practice, 1076; 1 Yan Santvoord’s Pleadings, 806; 14 N. Y. 506; 9 Nev. 317; 49 Cal. 306; 4Nev. 42; 3 Cal. 235.)

*Wells (b Stewart,*of counsel for Appellants.

*A. B. Sunt,*and *Bishop & Sabin, for*[Respondents :

I. The court had full power to amend the judgment in the manner in which it did. *(Leviston*v. *Swan,*33 Cal. 480.)

II. The action of the court in substituting D. L. Deal as party plaintiff was right and proper, Deal being the public administrator. (1 Comp. Laws, 1079; *JudsonY. Love,*35 Cal. 463; *Shartzer*v. *Love,*40 Id. 96; *Taylor*v. *W. P. B. B. Co.,*45 Id. 337.

III. If the order of the court below in directing the judgment to run in the name of L. Solomon, surviving partner, etc., was error, it was one which could not in any manner prejudice the appellant. No reversal will be had for error which does not prejudice. *(Bobinson*v. *Imp. S. Mg. Go.,*5 Nev. 44; *Todman*v. *Purdy,*5 Id. 238; *Cahill*v. *Sirschman,*6 Id. 57; *Capíes*v. *C. P. B. B. Co.,*6 Id. 265; *Conley*v. *Chedio,*7 Id. 336.)

By the Court,

Beatty, C. J.:

There were appeals in this case from the judgment, from an order amending the judgment and from the order de-*65njing a new trial. At a former term motions to dismiss tbe appeals and to strike out tbe statement on motion for a new trial Avere submitted. We ordered tbe statement stricken out and tbe appeal from tbe judgment to be dismissed, but overruled tbe motion to dismiss tbe appeals from tbe orders. Those appeals have uoav been argued and submitted.

It appears that after tbe commencement of tbe action Cardenas, one of tbe plaintiffs, died. Tbe fact having been suggested to tbe court, an order was made substituting D. L. Deal, public administrator of Lincoln county, as tbe personal representative of Cardenas. Thereupon tbe trial of tbe case proceeded, and plaintiffs obtained a verdict and judgment. Defendants moved for a new trial; the motion Avas overruled, and at tbe same time tbe court, of its own motion, ordered tbe judgment to be so amended as to run in favor of Louis Solomon, surviving partner of Cardenas. These are tbe orders appealed from.

Tbe order denying a neAv trial must be affirmed. After striking out tbe statement (see former opinion, 13 Nev. 276), there is nothing left to sustain tbe motion except tbe affidavits in relation to newly-discovered evidence, and they, unaided by tbe statement, fail to sIioav that tbe evidence so discovered is material to any of tbe issues raised by tbe pleadings. It Avould seem to have been intended to impeach some statements made by tbe plaintiff Solomon as a Avitness; but tbe record in tbe state in Avhick it is left fails to sboAv that Solomon gave any testimony in the case.

One of tlie affidavits tends to show that the court erred in finding the fact that Deal Avas the administrator of Cardenas. But tbe finding of the court as to that fact, and the verdict of the jury upon the issues submitted to them, are totally distinct, and an affidavit which tends to show that the court erred in its finding does not support a motion to set aside the verdict of the jury, which was the motion that Avas made. It is unnecessary in this case to decide whether the findings of the court, upon which the order of substitution was based, Avere the subject of a motion for a new trial. If they were, the motion should have specified those *66findings; and this case is disposed of by saying that the motion of appellants was directed exclusively to the verdict.

It may perhaps be true that tlie effect of setting aside the order of substitution would Lave been to render a new trial necessary; but, however that may be, we are satisfied that an order for a new trial ought not to be made on a motion to set aside a verdict, merely because the court has erred in finding a fact in some preliminary proceeding in the case. The error of the court in such case can not be reviewed on that sort of a motion.

But the order of the court amending the judgment we think was erroneous. It was made long after the expiration of the term at which the judgment was rendered, and there was nothing in the record to show that Solomon and Cardenas were partners. .This order of the court is therefore reversed, and the judgment, as originally entered, affirmed.