Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-03-22

the record, must be taken at the first term
after the transcript is filed, and must be
noted in the written or printed points of
the respondent. and filed at least one day
before the argument. or they VIII not be
regarded.
There being no statutory rule regulat-
ing the practice in these matters, this rule
has the force and effect of a statute. This
is 50 we'll established that a citation of
authorities in support thereof is not nee
essary. Whether or not the making and
filing the stipulations, without the reser-
walton. Womb operate as "A waiver of the
irregu!aritics under the rule is not before
Us. an! moon that question we Express nc
OpiNI H.. But it is so clearly evident from
the rc7uINut.vH cont ul"l N The S%tinuIa-
ions that the parties did not intend 10
wai~* ~iy',t uUlrr thn ruic to make
the OH r't4D4o tnaJ We are now consider
ing. that to hold otherwise would be say
ing that the parties had stipulated to do
that which they expressly stipulated they
did not intend to do.
1t is also urged that because the reSpOn-
dent subsequently served the appellant
with amendments to his proposed state
meut on nD0nal to be settled by the Dis
trict Court. that he thereby waived the
right to make the objections to the notice.
In the absence of any cited authority, we
are unable to understand why the exercise
Of "A statutory right to have the statement
settled and made to conform to the truth
~ the lower court before appeal could op-
r".'r HS 4 waiver of the right to object to
~ nrl..e OF appeal because of Irregular
ity i" ne filing and service thereof
uI..: under the rule above quoted,
could only be made after appeal. 1t is
also suggested that the order OF service
and filing the notice of appeal is inmate
rial. This court has re,,eatedly held 9th
e~rwise-that the filing of the notice of
appeal must precede or he contempOra-
neUus with the service.
Lyon Co. VS.. WaShoe Co. 5 Nev- III.
Johnson VS.. The Badger NJ. & NJ. Co.
! II New. POI.
Reese G. 4 :. NJ. Co. vs.. Rye Patch
E Con. VI. & VI. Co, Is New. 81.
Adopting the language OF the court in
! the case of Reese NJ. Co. vs.. Rye Patch NJ.
Co.. above cited. as the rule in this case
! we must hold that "In order to take and
e perfect an appeal the party desiring to DC
50 should first file his notice of appeal
&. next serve it, e =" The our further
SAYS in the same opinion, "Thcre ought
- to he no difficulty in understanding this
-. rule and none in following it; and even i
we were to conccde that, as an Orlglna
proposition. the statute might we'll hav,
. been construed to mean something else
tharA ,yA1ll hn No rnnsDn tnr 1EnntI INK
- such a construction at this late day. w
l. have a rule of practice which has bee'
. settled by a line of decisions in Californi
!, and in this State, and which ought to be
:, if it is not. we'll understood by the pre-
- fession. y = !: x. For these reasons W
~ would not feel justified in setting aSid
ho our former decisions upon the matter /
no question, even if we were better Statistic
,.o than we are that our construction Of tt
ob statute rests upon implications too ia
Of fetched and reasons too insubstantlai l
matters of practice like this there mu
10 be some rule, and even a poor rule I'm
-. formly maintained is better tina no ru
at all, or a rule subject to continu
on changes"
The notice of appeal having been fill
Of after the same was served. and the obJe
ot- tons of the respondent to the notice ha
Of ing been made in proper time, and n
Of having been waived, the appeals will
dismissed.
81 Let an order be entered accordingly.
nit We concur: BoNNIFIELD, J
)py BELKNAP, CT
:. Filed March 10, 1898.
of UGENE HOWELL,
dg- Secretary Of State II ex-otficio Clerk
ion the Supreme Court.
hin -.
Handed to the printer for publicati
March 10, 1898. Eugene Howell.