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

Iis VI il'i oI COIclttSIOlS OF law were
contained i'll the transcript. and that no
specification Of errors was contained in
the transcript. The paper which pur-
ported to be the statement on motion for
d new trial was neither certified by the
Judge or the attorneys or the clerk. as re-
quired by the statute, but appeared to be
nothing more than a report of the testi-
mony taken by the shorthand reporter
without the endorsement of the Judge
that it had been used or referred to on the
hearing. The appellants sought to avoid
the force of this objection by the terms of
a separate stipulation by which it was
agreed. that the report of the testimony
was agreed to AS constituting the statn-
1nent on motion for II new trial. The
court did not consider such position tena-
bic and very properly held thai the
agreement was not sufficient to make the
report a statement as the stipulation con-
tanned no agreement or intention to agree
that the saine was correct, but on the CON
trary, 1t was provided by direct terms in
the stipulation that a bill Of exceptions
which WAS made a part of the statement.
should be settled and certified by the
Judge at a subsequent date. and the re-
sp0ndents should have ten davs after he
settlement of the bill of executions hv
the Judge in which to file amendments
to the statement. 1t will he seen there
fore that the appeal being from an order
denying a motion for a new trial uDon
the reasons assigned. without astatempnt.
that there was nothing before the Su-
preme Court, and it was not intended to
decide, o was it necessary to decide.
that the p~leadings should not I've consid-
cred III the appeal unless identified bv
the certificate of the Judge as having
been read or referred to on the hearing
below.
Again it is claimed, that the appellants
not furnished a complete statement
on motion for a new trial-that Volumes
and > furnished show that they copSti-
tute only a part OF the statement. The
statement AZ prepared consists of three
and the separate motions of the
appellants and Of Jennie G.. and Carmen
|. Dunphy. executives, are based upon
the Joint statement of all the moving par
ties. The certificate OF the trial Judge
upon each volume thereof is to
effect, that the specific volume is one
of the engrossed statement on
motion for u new trial. and with
the other two specified volumes
constitutes the statement on mo-
ton for a new trial and is correct and
Under the law permitting the
appellant upon AN appeal of this kind. he
a right to tile the original papers con
stltuting the record on appeal. and AZ
Volume 3 is a part OF the original en-
crossed statement on motion for a new
trial i'll the appellants case. they have a
to have it considered, notwithstand-
it was not filed until a subsequent
date. To the claim that Volume 3 of the
statement may be a part of the record on
appeal of the Dunphys, it is sufficient to
say that under the act of 1895. the state
lnent being 4 joint statement on behalf of
the appellants and the Dunphys it was
their right, as also the right of the Dun
phys. to have the entire three volumes
considered by the trial court and by the
appellate court in determining appel
ants motion for a new trial,
Considerable argument has been made
by counsel for the respondent against the
consideration ofthis court of the findings
of fact and conclusions Of law. and it
is urged in that behalf that the findings
Of fact aud the conclusions of law are GER
titled here as original papers, The rule
Of law relied upon and cited in Anderson
vs.. Gilmore, Is New. -. is certainly cor
rect, and under the contention of the re-
3pOndent such findings and conclusions
are not entitled to consideration. but an
examination Of the statement on motion
a new trial developes thai the same
been fully set out therein AS a part
If the statement. as were also certain pro-
finding, which were refused bv
he c0urt
Record, Statement IN Motion for New
Vol. l pag" i. ct seq.
The further suggestion that the appeal
lie dismissed because the notice
If appeal was not served on a number of
he defendants dismissed from the action
before judgment AMI before motion for a
new trial WAS made and determined. does
not require any considerations: neither
Ices the objection that the certificate Of
he clerk L" the record require c~onsidera-
ion as any det.c- therein was cured by
he admission of tn" respondent in open
curt. Moreover, respondent under the
Jules of this III waived any right t.
make such objection by his general ap
On the 18th Of April. 1898, and
~ filing his points and authorities upon
he merits on June Sd, 1888
Sweeney VS.. iIjuI, Is New. 4lG.
For these reasons the motion to dis
Miss will he denied.
We have. therefore, a record on appeal
roIA the order denying appellants mo-
ion for a new trial, consisting Of the or
Ter appealed from, the notice of appeal.
he undertaking on appeal, the original
dealings, the original maps and exhib-
Is under stipulation. and the statement
III motion for a new trial composed of
hree volumes.
We come now to the consideration of
he question of merit presented by the
ono nj " -D---l -.