Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-05-04
OPINION
By Belknap, J
For Respondent.

The respondent, At the proper time, in
terposed a motion to discharge from the
record, the statement on motion for a
new trial, assigning As a reason therefor,
that the notice Of motion for a new trial
was not given by the attorney Of record
Of the appellant. The record discloses
the fact that the original answer of the
appellant was signed by w. 8. Bonni-
nifeld, Esq, as its attorney. Thereafter
the appellant filed certain amendments to
its answer signed by Robt. NJ. Clarke and
III. Warren, Esqs, as its attorneys; the
decree recites that Clarke and Warren
appeared as the attorneys for appellants;
the notice of motion for new trial and the
statement on motion for 8 new trial were
signed by Clarke and Warren as the at
torneys for the appellant, and stipula-
lions were entered into by and between
the respondents attorney and Clarke and
Warren as the attorneys for the appel
ant, respecting the suit.
In the absence of any notice or order OF
substitution where the record discloses
the fact that certain attorneys have been
setting for q party all through the case
and have been recognized as such by
court and council of the adverse party, it
cannot be said that they are not attor-
neys OF record in the action.
Livermore W.. Webb, st Cal. 4S0.
Reussin VS.. Stuart. 81 Cal. 20e.
, 2Ency. Pl. & Pr. go.
The cases cited by the respondent in
supper of his contention show a state OF
facts different from the one shown in the
record in the case az bar, and in a proper
ease would apply.
The respondent also asks us to strike
out of the record certain affidavits il
support Of the motion for new Il .u. .
fered unda the 18th Subdivision Zee
lion 32I7 of the General Statutes. This
motion must prevail; the afidavits art
not shown by the endorsement of tht
Judge or Clerk To have been read or re
fer1ed to on the hearing of the motion AZ
required by the express terms of that
Section. and are therefore no part Of til,
record.
Cen. Stats. Sec. 32l9.
Dean VS.. Pritchard, 9 New. 232.
Albion c. NJ. Co. VS.. Richmond
Co, 10 New. 225.
We do net see how under the provis
ions OF this Act this requirement coult
be avoided by incorporating the affidavit
in the body of the statement on motion
for new trial, as such procedure is un
authorized, and the aftidavits were NO
properly a part of. and could not be prop
erly made a part Of such statement.
We come now to a discussion Of tn
merits made upon the record after tn
elimination of the affidavits. The actio
was brought by the respondent to rt
cover a judgment of foreclosure agains
the defendant Thaddeus l.. Hoppin ct a
Of q certain mortgage upon real estate i
Humboldt County. The mortgage w
made and executed by Thaddeus l.. Hoy
pin and Luella V. Hoppin to secure th
payment of a certain note for 100000, {
date January 9th, 1891. The mortgag
bears date of January 18th, 1901, and VIZ
recorded on the eth day OF March, 1894
Humboldt County. Luella V. Hoppi
was not made q party to the action. TT
appeIlant. the First National Bank
Winnemucca, set up by answer an il
debtedness due it, secured by a dee
executed as a mortgage, upon the san
real estate by T. l.. Hoppin & Compan
n co-partnership, claimed to consist
Thaddeus L. and Luella V. Hoppin. 1t
also claimed by the answer that the re
estate was he property of the co-partns
ship, and that the indebtedness was {
partnership Indebtedness The other d
PENDANTS to the action, upon their answe
and by the decree OF the court, are e
mated from the case. Upon the trial
the issues made by the complaint a
the answer of the appellant, the court
creed a foreclosure Of q mortgage Of t
respondent and the sale of the mortgag
property to satisfy the mortgage debt
pether with interest, attorneys fees a
costs az against the interest Of the defer
ant Thaddeus L. Hoppin in and to 81
lands. and out of any surplus arisi
from such sale after the payments
made as aforesaid, there should be p: