Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-07-01

ing or denying new trials. Inc Su-
preme Court of California has held, that
the two modes Of appeal are Independent
of each other and that an appeal from the
Judgment does not depend upon a mo-
ion for a new trial, and may be taken
without waiting for the determination OF
a motion for new trial, and that even an
af1irmance of a Judgment upon a direct
court below from setting aside the YER
dict of the findings.
Carpenter VS.. Williamson. 25 Cal.
l6S.
Spaugel VS.. Dellinger, s. Cal. 2S4.
TOwdy vs.. ellis, - Cal. $50.
Mcdonald vs.. McConkey, p Cal. 300.
itn%uyr vs.. Jones, 90 Cal. 81.
Naglee vs.. Spencer, 60 Cal. 10.
This statutory rule is based upon
sound reason. Should the appellant be
required to await the determination of a
motion to vacate the Judgment, he might
lose his right of appeal therctrom by ex-
piration of time in which such appeal
could be taken, and thereby his right to
have reviewed any errors appearing in
the Judgment roll. Upon the showing
made and for the reasons given. the mo-
ton to dismiss the appeal will be denied.
The first objection made TO the validity
of the judgment. based upon defects APP
U"a'ing in the judgment roll. is that no
Summons WAS ever Issued in the action
tn, III" paper purpOrting to be a sum
tnnu>, o for the reason that it runs
; in IA. :talie of The people of the State
Of Ncvada.' Section Is, Article vi Of
the Constitution requires that the style
Of all process shall be THE State of Ne
vada.' Is a summons issued under our
law a process within the meaning of the
provision of said Article?
Under our Practice Act, which has been
in force since 1859, provision is made for
the issuance of summons TO be signed by
the attorney for the plaintiff or by the
clerk, and when issued by the clerk. re-
quiring that it shall be under the seal of
the court. The same Act specifically de
fines the contents of the same. There is
nothing i'll the Act requiring the sum
mons 10 run i'll any particular : rm. 1t
, has never been treated as 4 process with
i'll the meaning of our Constitution either
+ by the legislature or the courts. and while
there is conflict of authority upon a SINH
+ lar question under constitutions and
statutes, similar to II Own. in other
States, we are disposed to hold that a
a. summons is not a process within the
=. meaning of our Constitution. Upon this
point we quote from a decision of the
+ SuprcH. Cour of Colorado in which il
says, AS 10 the first point raised, that
: the uInmOns Is such a process as may be
issued in the name of the people of Colo
o RADIO, we are strongly inclined to follow
+ the conclusion of the Supreme Court o.
Il Florida in Gilmer VS.. Bird, Is Fla. Al. Ii
this case the identical question here pre-.
# scented is discussed at some ~length-tha'
is, that the summons, as authorized by
n the code, is a, process within the mean
ing of the constitutional provisions which
n require the style of all process to be tn,
State of Florida:' that the haC
# no such style; that this was essential t,
the validity of the judgment, there hav
a ing been no appearance And the cOur
said: but is a notice given by an attor
"a ney of the Institution of a suit in a form
similar to a but not issuing GU
al of a court, a process within the meanin,
Il of the constitution? Baron Comyn, il
giving the definition of the term pro
f. cess says it imports the writs which is
% sue out of any court to bring the party t
answer, or for doing execution. There j
v no definition of process given by an,
accepted authority, which implies tina
n any writ or method by which a suit i
n commenced is necessarily process /
20 party is entitled to notice and to a hear
ing under the constitution before he cal
10 be affected, but it is nowhere declared o
Of required that that notice shall be only
+ writ issuing out of a court
Comet Consolidated MIG. Co. VS.. Eros
m 25 Pac. (Col.) 506.
n Hanna VS.. Russell, IL Mimi. so.
10 Bailey VS.. Williams, 6 Ore. II.
Nichols VS.. The Plank Road Co., 4 G
nj Greene, "A.
If The appellant also claims, that undo
"a the provisions of the Act approved Eel
ruary Is, 1889, Statutes 1889, page AZ, re
r. quiring certain corporations named there
10 in to appoint and keep agents upon whor
service of summons can be had in thi
State, and upon failure to make such az
,pointments. service may be made upo
the Secretary of State, the judgment
void for the following reasons; FRS
That it doesl not appear from the judg
ment roll, that the appellant, a foreig
ng corporation owned any property or di
d. any business within this State. Secen,