Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-12-19


pending a trial of the cause upon its mer-
it's; and that the respondents Howard and
Stiles be allowed to answer in said cause
to the merits, upon filing d sufficient IN
dertaking conditioned for the payment to
the appellants Of the costs and damages
they might sustain by reason of a trial of
aid cause in the event the appellants
~hould finally recover judgment against
'hnm.
From this order the appeal has been
taken.
Testimony was offered on the hearing
of the motion relative to the authority of
Mr.. Clarke to appear for the respondents
in said action, which is on some points
conflicting. A careful review OF such
testimony cOncluSively shows that Gen
eral Clarke was employed by f. O.. Crane,
the brother of the respondents. to enter
their appearance in said action. We are
also of the opinion that the testimony
shows that the respondents had never au-
th0rized such employment. Considerable
testimony was offered with respect to an
agreement regarding this action made be
tween counsel for appellants and General
Clarke, growing ont OF an action pending
in the Euited States Circuit Court, where
in the appellants were plaintiffs and +.
Crane and others were defendants, in
v0lvinr tho same matters, but to which
action these r~4,poII1nts were not par
ties. 1t is not necessary that this agree
ment should be considered in determine
ing this case. for the reason that the same
was never educed to writing nor entered
of record OH The minutes OF the court. as
rcouirci bv The rules and p.actice of the
court.
1t is conteudcd on behalf of the appel
hrts. thai lhp action of the lower court in
this rott.r j. erroneous for the reasons:
Fir~l. T"iu There. - no showing on the
pan .4r respondent that General
Clarke. " no appea:pl i,r lilunI, WAS in
solvent. or unable 10 respond in damages
or t4.. ...,.:, - av Ha..I OF ~cuiiuslof
between appellants and said attorney
Second. That the RESPONDENTS have no,
; showns sufficient diligence to entitIe them
TO the relief obtained. Third. That il
was error to allow the respondents 20 an
5 swcr to the merits without imposing as {
l condition the Daymeut of the costs tina
l had been incurred priOr 10 the date of tn,
order Unon the other hand. counsel 70
Fac ~rcsOondents contend. that it is no
u,rnssarv TO show that the attorney VIII,
$ has anDeared without authority is insol
vent or that there was fraud or collusiol
between the appellants and the attOrne,
) who assumed to appear and act for the re
N~,.unlentc.
-. uc.ion Of the lower court in grant
t ing the order prayed for is based upo'
{ the Ia~ .Iause of Section IS Of our Civi
Pr.~r .,ro. which provides = = : tina
when from any cause the an
y a copy Of the complaint in an action hav
II not been personally served on the detent
u ant, the court may allow on S.!ch terms a
IL may he just, such defendant or his leg;
Il representatives at any time within 81
months after the rendition of any juds
t. ment in such action. to answer to II
u merits of the original actlon.'
=" Gen. Stats. 1888, Sec. $3.50.
t 1t will appear from the readlng OF sa1
y section that there should be a full perlt
< after the phrase ending with the wore
y "eNcusahle neglect otherwise son
Il doubts might arise as to the proper CO.
I'd strlcti0n Off entire section. This cou
Il has heretofore made the same sUggo~ti(
~ in the case of Howe VS.. tOldren, + Ne