Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-02-04

the re %I!ir"i Zine. Upon these facts. sh,s
court held. III effect, hat a party intend
Ing to hes the right to wait for the
statutory notice of tie decision from he
adverse party, before giving notice of in
tenti0n to move for d new trial, and that
presence in court, and hearing the decis-
ION orally announced, and oral cOmmuni-
cation of the fact, are not suffi-ieut to op-
crate as Il waiver of that right, therefore
he notice OF intention was filed within
ne t;aaN roG'iir"a, and the writ should is
sue. necessarily follows, from tn"
abUN-.: 1t i" 1~H II "ntiro Of the 1ocis-
ion had been given, that the I.I.l. aid
S"r~i"~ "ftho noti,.a nriY.~~t;N" = -n,rr
for Il .1, tn.t The sialeuelt on mo-
ton for a new trial within the fOrty-four
days thereafter, would not have been
within the time required, and the writ
should not issue. Il also necessarily fol-
lows that If a losing party fails to file his
notice of intention and proposed state
ment within the time required, or within
the time allowed by order or stimulation,
he loses his right to have the same settled
by the court; that il can be said With
equal force and reason that in case the
prevailing party shall fail to file his pro-
posed, amendments within the time limit
ed by the statute, or order. or by stipula-
ton. he loses his right to have the same
e. ,'>tjeIU,. This court held in another
"!' that where notice of motion for a
0"" = y had been filed and served with
IL to- ty~ after written notice OF decis-
ION, dnu no proposed statement was flied
within five days thereafter, and on the
sixth day the court granted ten addi-
tiOnal days in which to file the same. moth
Ing having been done in the meantime to
retain jurisdiction of the matter, tina the
failure to file the statement within the
tive days operated As a waiver Of that
right, and no power existed in the District
Court to reinState the right.
Elder vs.. Frevert ct al, IS New. 27S,
We must therefore hold that where
rights OF either party to an action under
this statute are limited in Time. that the
failure of either to exercise such rights
within II" limited time, unless ;h3 same
Is preserved by some authorized act, 0p-
crates a. d waiver of the same, and the
attempted determination Of slch rights
upon the merits over the proper objection
is without authority. II the Legislature
had intended that the rule should be 9TH
erwise, that clause OF the act allowing the
periods of time limited to be enlarged bv
stipulation or by order of court upon
good cause shown. would never have been
inserted in the statute.
The relat0r contends that it is the duty
OF the court to make the statement con-
form to the truth, although there have
been nc amendments proposed and filed
within the time limited, or when no
amendments have been hied at all. In
support Of this contention. he cites Sec
ton lfS of Hayue on New Trial and Ap-
peal in which the author uses the follow
ing language: "Although ~ amend cents
be served within the prescribed time.
there is nothing to prevent him from
availing himself of the assistance of any
amendments that may be handed to him
before the settlement. and he might delay
the settlement for a reasonable time in
order to gain Such assistance
The author was discussing tie power
of the court to settle the statement under
the California statute, the provisions of
which are very materially different from
those of oar statute. The Califoy.. j., stat
ute expressly provides that I'll no
amendments are served within the time
designated = the proposed state
lnent = = may be presented to the
Judge or referee for settlement without
notice to the adverse party" No
such provision is contained i'll our stat
ute and no such. power is conferred. It is
expressly provided that at any time after
the filing n service of the proposed
statement, and the filing and service of
the proposed amendments. when filed
within the time limited by the stat ute, or
by order of court, or. by stipulation,
the judge or referee upon notice may set
tie the same. If the court under these
provisions has the authority to consider
aud settle the statements upon proposed
amendments, when the same have not
been filed within the time required. thcr,
ii was useless to incorporate into the stat
ute the various limitations, and that such
was not the Legislative intent is clearly
apparent from the subsequent provisions
OF the SAME act providing for the manner
of authorization by the certificate Of the
parties when it has been agreed to, by the
certificate of the judge when settled by
hinl. and by the certificate OF the clerk
when no amendments to the statement
have been filed within the time required.
1t is also clearly apparent from these
provisions that only three methods were
intended by which such statement should
become a mart Of tho racord E;r.t h.,