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

settlement when the proposed statement
and are filed and served
within the times limited, or extensions
thereon provided for; second, when the
statement has been agreed to by the par
ties; and third, by failure of the pre-
valtlng party to file amendments thereto
within the time limited, or within the eS-
tensions thereof. where the proposed state
ment has been properly filed. When the
amendments are not filed within the time
required, there is nothing for the Judge to
S'ffi", and the proposed statement be-
comes ny operation of law a part of the
record. AItt tho certificate Of the clerk Isl
>N..iI"!eht Authorization of the same.
econtention OH the part of the relator
that the clerk under a different vicw of
the statute, is required to act iud'"in''v in
making his certificate, is withol, ..Ierit.
1t would be just as reasonable to contend
that the act of the clerk in entering "A
Judgment by default under the statute is
Judicial, as to say tha- the certificate of
the clerk under this statute involves the
exercise of judicial functions.
IL iS III lltI ttilttIltltl Nv Clp rrlatOT,
that the fact that the bank gave notice de
Ginning 10 a low the amendments, operat-
Ell as a waiver of the objection thai the
same were not fleet in time. 1t is not
necessary to discuss the proposition that
such right might be waived, but we are Of
the opinion that the facts shown do not
make such a case as would Justify the
court i'll so holding. 1t appears that the
bank took SU"ii steps as it was authorized
by law to make its proposed statement
d part OF the record, and that the objec-
ton to theipropOsed amendments for the
reason that the same were not filed with
in the time required, was made at the
first opportunity. 1t can hardly he said
that making an objection to the allow
ance of the proposed amendments in the
manner and at the time required bv stat
ute, would operate as a waiver of a right
to make further objections to the amend
lnentS which could only be made at a
subsequent time and which were made at
the nr0t opportunity.
Tho sr2nk, as shown by the record, used
due diligence in its attempt to preserve
all lis rights. If the statute had required
the bank To make the objection to the
proposed amendments, that the same had
not h@@it fled within the time required.
III utlt"T !i>nueS and at other times than
1t WIS ~ vie, and had failed in that re-
spect, then there would be merit in rela-
tors contention. The authorities cited
by the relator hold that it is a well settled
rule, that il a party appears and argues a
motion upon its merits without insist
ing upon objections to the moving pa
pers, he thereby valves such objection.
Havne on New Trial & Appeal, Sec.
l4o.
The other authorities cited by the rela-
tor in support of this contention are to
the same effect, and we are unable after
diligent search to find any authority that
holds to the contrary.
For these reasons The writ will be de-
MED.
We concur: BELKNAP, G.. J
BONNIFIELD, J,
Filed January 81, 1898.
EUGENE HOWELL.
Secretary of State and ex-officio Clerk Of
the Supreme Court.
Filed with printer for publication Feb
ruary |. 1898. Eugene Howell.