Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-08-04
BY Massey

OPINION
BY Massey.J
We are asked to dismiss the appeal
upon the ground that the notice Of mo
tien for a new trial was not fled within
the time required by law, The proceed
ing is one in equity, and the trial court
called a Jury to " Inch was submitted one
special issue of fat. and the finding Of
the Jury upon this question was adopted
by the court.
Assuming that the trial was within the
rule requiring notice OF motion for new
trial to be given within five days after
the rendition Of the verdict, or requiring
that any order extending the time within
which such motion might he made ehouid
be obtained within five days after the
rendition of such verdict, the Re-pon-
dents. not having waived their right to
: make the motion in this court to dismiss
I upon the grounds above stated, contend
! that the order extending the time in
{ which to make the motion was not made
. within the time required, and is there
Z fore void, and the notice of motion not
having been given within the time. the
trial court had no power or authority to
set in the proceeding.
This court has decided that the rule re-
lied upon by the Respondents does not
apply to proceedings Of this character.
1t has been said by the our that, an a
chancery salt the action is not tried until
che verdict has been sanctioned and es-
tablished by the Chancellor. In this case
1t was not tried until after the argument
of counsel as to what the Judgment
should be. There is nothing in the tran
script showing that the court submitted
to the jury anything but the special is
sues stated, and, 1t being a case of purely
equitable cOgniZance, we cannot presume
the court called the jury for any other
purpose except to be advised by it. Ger
tainly, the fact that the jury found
against the plaintiff upon the issues sub
mitted to them vas necessarily no proof
that the court would finally so fnd alter
argument, or hat ths court 0CHid find
against him i'll any respect, We think
this cause was tried by the court. If we
are correct in the conclusions already eI-
pressed. the court should have filed his
findings within ten days after the trial
either adopting or rejecting The findings
Of the jury. By its acts it did so ia effect.
Our opinion is that the plaintiff not only
had a right to thisk he had ten days after
findings were filed by the court in which
to give his notice, but That he in fact, had
that length of time after the court rem
dered its judninent for costs against him
on the Bird day of December"
Duffy VS.. Moran. u New. 9S,
Under the rule just quoted the order
extending the time and the notice Of mo,
ton for a new trial were within the time
required, and the motion to dismiss VII
therefore be overruled.
- This action was Instituted by the APP
pellants to set asaide certain c~onveyance'
10 real estate in Washoe County, Nevada
made by one F.. Crane to his daughters
Mrs. Amelia Howard and Mrs. a. 6
Stiles, and subject the same to the pay
ment of a judgment in favor of the APP
pellants and against the said f. Crane. !
is claimed by the Appellants that thes
cOnveyances were made without any con
sideratiOn and for the purpose Of cheat
ing and d~efrauding the creditors of tn
said +. Crane, including the Appellants
Judgment by default was taken agaius
the Respondents Mrs. Howard and Mr.,
Stiles, which was ~atterWard, upon thei
motion, set aside, and iii appeal taken b
Stanton, Thompson 4 Company from tn
order vacating and setting the same asid,
This court upon such an appeal attirme
, the order of the District Court. and upo
a trial Of the issues subsequently ha
therein fnIII and a decree were 81
tea ed in their favor; a motion for a ne
trial was iullI Used, the same was denit
and from the decree and order denyir
the new trial this appeal has been take
The materil! f4ctS briefly stated, al
not disputed. are, that on February l9t
1876. E. Crane conveyed to his daugbte,
the Respondents in this appeal, two tC
ty-acre tracts of land then constituting
{ part of a ranch then owned and occu2i
by him in Washoe County, NeVaC
The tracts of land so conveyed were he
by Crane under a contract Of purcha
from tho Central Pacific Railroad Coz
pany, the ands being within the tween
mile limit of the grant to that Compar
and in odd numbered sections. Sub
quently the purchase money was paid
the Railroad Company and on the Il
day of December, 1873, the patent Of t