Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-03-03

by q snortfland Exporter authorized by
b court to make the same. and the min
utes of the court. It was thus clearly
manifest that the Legislature intended
by this provision hat in determining the
right OF a party to a new trial, the trial
court hould not be limited to the SPECIFIC
matters properly contained in the state
ment or contained III the atfidavits pro-
Nlded by the same section. The conrt
might, and would Of necessity look TO the
~pleadings and certain other papers on file
in passing pom the merits of the mo-
ton.
Stats. New. 1899, p. IS.
The same intention is manifest i'm Sec
ton 1862 above cited, in requiring that
copies of the papers, and not the copies
of specific papers, used on the hearing
should be furnished the appellate court
as the record on appeal. Following the
provision authorizing reference to plead
lngs etc, on the argument of the motion
for a new trial in the Act of 1893 above
cited, is the clear and specific declaration
of the law. that the afiidavits and count
ef-atildaNltS, or the statement thus used
in connection with such pleadings, depo-
sitions etc. as are read or referred to on
the hearing Sh1U constitute ritbout fD.-
tier statement the papers to be uSet{ or the
appeal from the order granting or reftIs-
ing a new trial, Thus. therefore. has the
Legislature expressly declared what shall
constitute the record on appeal from an
order granting or refusing a new trial.
and by the other acts cited prescribing
that certified copies thereof. or the certi-
fled originals, he filed as the record in the
appellate court. BY the same Act the adj
dltlonal requirement Is made for the
identification of certain of the papers
used on the hearing of the motion before
they can become a part of the record on
appeal. 1t requires in express terms that
the atfidavits shall be identified by the
endorsement of the Judge or the Clerk at
the time that the same were read or re-
terred to0n the hearing, and dispositions,
dOcum entary evidence on file, testimony
taken by a reporter. or minutes of the
court shall be identified 10y tie certificate
Of the Judge endorsed there, I % the eff
feet that the same nave been sad or re
ferred to on the hearing. Nowhere in the
statute Is it required by direct terms or
by fair inference, that pleadings read or
referred to on the hearing of a motion
snail be identified or endorsed by the
Judge or Clerk as having been so used a.
a condition that they may become a part
OF the record on appeal. TIE pleadings
are a part Of the record in the case. and
when certified to this court as a part of
the record on appeal will be considered
as such without further Identification
ana 1t IS especially proper that it should
he so in the absence of direct require
ments of further Identification as i'm the
case of dispositions, documentary evil
dence, testimony taken by a shorthand
reporter, or the minute of the cOurt.
Neither Is it necessary under this statute
that the pleadings should be emb died in
the statement. Neither can this court
say that such pleadings were not read or
referred to on the hearing of the motion
because they are without the endorse
ment. The fact that they come to the
court as a part of the record under certif-
lcate n that the law does not rr0uirn
Such endorsement is sufficient TO mako
them a part of the record and entitle them
to consideration in determining the mer-
It's. 1t is claimed that this court has de-
clded otherwise and great stress is laid
upon the opinion in Simpson vs.. Ogg. Is
New. 80, as supporting such claim. In
that opinion the following language is
used: "On this appeal we are limited in
our examination to a statement legally
authenticated and to Such other papers
as properly may have been and were
read and referred to by the court below
on the hearing; and the only evidence
which we can consider that such papers
were used below is the Judges certificate
to that effect" This language seems to
support respondents claim. but All eX-
ANIMATION of the record in that case
clearly shows that the court did not and
was not required to decide as the Ian
guage imports. The question before the
did not require any such statement
OF the rule. The respondents i'll the case
at the proper time filed their written mo-
ton to dismiss the appeal, giving as
grounds therefor that the appellants had
neither filed or served a notice of appeal:
that they had not furnished such an un-
dertakIng on appeal as required by the
statute, hat the paper filed as a state