Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-01-28
OPINION
BY Massey. J.

By Massey. J.
This appeal is taken from Il in .srment
made and entered by the District Court
on the 10th day of june, 1898, AMI from an
order denying appellants motion for
new trial made on the md day Of iFebru-
airy, 1899. The appellants served and
filed their notice Of appeal on the 7th day
of February. 1899. On the 3rd day of
July. 1899, the same being the first of the
July term of this court, the respondent
interposed a motion to dismiss the appeal
and to strike outparts ofthe record for var
ions alleged defects. This motion was. at
asibsequent date, argued orally in open
court. On the 2Sth day of September,
S99, the cause was argued upon It's merits
at which time permission was granted
the Roco-Homestake Mining Company,
California corporation, claiming an in
terest in some of the property i'll contro-
versy through the respondent, TO appear
argue orallyand file briefs in support of the
judgment and order Of the District Court
in behalf Of said Company. Subsequently
IN the application Of the Rocco lone
BtahP No1lpdiN. lcdN Z NA> S'''''N'
withdraw the appearance and briefs tilei
in that behalf, upon the showing that it
had ceased to have any interest in the
controversy. Because of certain oriec-
tons made to the record by said Com
p. ny at the time of the appearance, the
appellants, on the Sth day of November
1892. asked the court to vacate its order
of m al q
grant them permission to Withdraw a
part of the record for the correction of
the defects claimed by the Rocco Home
stake Company to be sufficient to Justify
the court in distnssing the appeal.
The action of the Roco-H omestake
Company in withdrawing from the cause
renders ii unnecessary for us II pass
upon the appellants motion to vaca.e the
or Ter of Submission and for leave to
withdraw a portion of the record.
1t will, therefore, at this time b. ueces-
sary to determine only those points made
against the record by the respondent in
her motion of July 3rd.
FIRST, 1t Is claimed blythe reSpon
dent, tina, the appeal should be dismissed
to lie the record on appeal on the first
day of the April term 1899, as required by
Rule ii of this court. 1t appears, As az
IN disputed fact u pom the showing made
BY the affidavit of Howell, one of the
appellants, that Immediately after tbs
appeal had been taken, he requested tn
Clerk of the District Court to furnish
record on appeal in accordance there
with. In compliance With said demand
tn Clerk furnished the appellant til
papers in said cause tied up with strln
an i rubber band. and without the Ger
til ate of the Clerk Of the Court attache
thereto, and without the papers bein
id tiff I'll in accordance with the stipula
tion between the parties. Some time Wa
col-unel in an effort by the appellant
Ii well, in ing the record proDerI
made up and indexed and certified. Th
record in its present form was not file
in this court until the 18th day Of Jul.
1899.
1t VIII be observed, that at the tim
the respondent interposed her motion
d:emiss, there was no record on apes
flied in this court. 1t is provided /
transcript Of the record be not file
within the time prescribed by Rule |
the appeal may be dismissed during Il
first week of the term Chat is the ter
commencing thirty days after the appe
has been perfected or the statement st
tied a, prescribed in Rule I'D witho
notice The respondent, as to this lpoil
relying upon the provisions of this Ru
having failed to interpase her motion
the time required or the term indicate
and having permitted one term OF t
court TO pass, after her right under /
rule had matured, may have waived !
right to make the objection at the IL
she did. Be that as it may, she has M
no showing, or effort to show, the fl
required by Subdivision Two of r
III, to be s4own on such motion. 1t
required by that subdivision, in man
tory terms, that on such motion, til
shall be presented the certificate of
clerk below, under the seal of the COZ
certifying the amount and character
the Judgment; the date of it's renditi
the fact and date of the filing of