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

Counsel assume in his argument. that
IA specific form OF notice is required. and
sets out III his brief what he assumes that
form should he. Ourstatute does not re-
quire any specific form. 1t provides in
general terms that an appeal shall he
made by filing with the clerk with whom
the judgment or order appealed from is
entered, a notice stating that the appeal is
from the same or somes specific part there
OF and serving a copy of the notice upon
the adverse party or his attorney.
Gen. Stats. Sec. 1858.
While this provision of the statute is
mandatory and must be complied with.
and the suf1iciency of the notice should
appear from the face thereof, yet the no.
tice will be literally construed and irree-
ularities therein will not render it void if
the material facts appear therein by rea-
sonable intendment.
, Ency. Plead. & Prac. D. PIG.
The Supreme Court of Oregon under a
statute similar to ours, say that, The ten
dency OF the court as indicated bv recent
decisions. is to cOnstrue notices Of appeal
literally. and hold them sufficient if NV
fair construction or reasonable intend
ment the court can say that the appeal is
taken from the judgment in a particu-
lar case
Crawford VS.. Wist, 80 Pac. tOregon)
Us.
Mendenhall VS.. Elwert. 50 Pac. (Ore-
gon) o.
Applying this rule to the notice. it is
clearly apparent that the appellants ap-
peal from an order of the District Court
of the State of Nevada, Second Judicial
District, Humboldt County, in the par
tlcular case made in said cause DENYING
the motion of appellants for a new trial.
to the Supreme Court. 1t is vigorously
commended that the notice is fatally defec-
tive IN that ii fails to describe any order
appealed from. We do not believe this
contention is tenable. Iii apparent from
the reading of the notice that the order
appealed from was the order denying the
appellants motion for a new trial, and
thai the omission of the word "denvjnor
or "~oVeruling" was simply a clerical er-
ror, WhIrh in no manner affects or ShCuId
affect the validity of the notice. In other
words, we must hold thai where if is
clearly apparent from the notice served
and filed that the substantive matter nee
eSsary under the ruIe has
been set out in the notice, any clerical de-
feet suggested by the reading of the no.
tice itself will not be sufficient to author
lie this court to dismiss such an aDDnal
on accOun Of said defect. If no notice
whatever had been served or filed the
question presented would have been diff
terent and the court would have followed
the rule laid down in Marx vs.. Lewis. 81
Pac. Nevada COO.
1t IS further objected that the order de
nying appellants motion for a new trial
Is fatally defective, by showing that the
order WAS made by the District judge
and not by the court. The order recites
that it was made by the court and not
outstanding the same is signed bv the
District Judge such recital is sufficient
1t is also claimed by the respondent
that the appeal should be dismissed for
the reason that no notice of appeal was
served upon Jennie c. Dunphy and Car
T.. Dunphy, Executives of William
Dunphy, deceased, and co-defendants of
the appellants in said action, 1t ppears
from the record that the appellants and
their c"-defendants filed separate answers
to the respondents complaint in which
each set up affirmative matter against the
of the respondent to recover.
joint trial was had by the court. The an
pellants gave a joint notice of intention to
move Tor a new trial, and their cO-defend-
as the representatives Of William
Dunphy, deceased, gave a separate notice
of intention to move for a new trial. Two
separate and distinct motions for new
trial were made by the appellants and
their co-defendants basing their RIGHT
thereto upon a statement in which all
joined. On the Ilth day OF December,
1897, the following order was made hv the
court: THE motion for a New Trial in
the above entitled cause coming on rcgi-
larly for hearing this day, Byron Waters.
Esq. appearing for Plaintiff and Harry
WARREN, Esq. appearing for Defendants
Grayson and Anderson, the said motion
having been duly submitted, the court
being unable to discover any error in the
Judgment or proceedings in said cause.
the motion for a New Trial therein is
denied, and new trial therein refused.
December Ilth, 1897. A. L. Fitzgerald.
District Judge"
This is the only order Oh motion for a
trial found in the record. 1t is clear !
~ apparent therefrom that the motion of
the appellants GraysOn and Anderson
was 0verruled. No appearance was made
for their cO-defendants, there is no recital
in the order that their motion was sub
mitteI for decision, and the order does
pretend to deny the motion of other
defendants than Grayson and Anderson.
c. Dunphy and Carmen L. Dup- !
ply are not parties to this order. and un-
der u statute could not be adverse par
ties to these appellants. Sc far as the rec ,
ORD dlscloses, it does not appear that the
motion of the Dunphys for a new trial
was ever passed upon or determined bv
the loWer court. If any such order was