Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-02-03
Concluded on Fourth Page

sought in an action brought upon
the Judgment, under an answer OF
genera! DENIAL, to review alleg
ed errors in the judgment sued upon,
and the court held that such errors could
not be reviewed in the action-that where
it appeared that the trial court had iuris
diction of the subject matter and OF the
parties, its judgment was final and con-
elusive.
Regarding the case of Clyburn VS.. Rey
holds, 9 S. E. Rep 973, it is sufficient to
say that the court there held that a de-
cree recited to be by the consent Of the de |
PENDANTS solicitors will be presumed
to have been consented to only by those
defendants who have appeared in the
suit.
In the case at bar the consent of the
appellants to the order of dismissal is di-
rectly negatived by the record. 1t was
made over and against their objections
without their consent.
a quotation from the opinion in Fisher
VS.. Holmes, p Ind. 463, will sufficiently
distinguish tl,at case. I'VE can conceive
OF no reason why a Judgment entered by
ton having power in proper case to
render such a Judgment, and having the
parties before it should not bind those by
whose agreement it is entered, notWith-
standing the pleadings would not, in a
contested case. auth"lize such judg-
ment.'
/ 1t is not necessary to discuss further
I ,aSnS ,.i oh - think y
appears that they have no application
whatever sto the case at bar however
forceful the rules may have been in the
cases decided.
The further contention OF the reSpon-
dent relating to the matters that can prop
erly De considered and determined under
an appeal from an order denying motion
for new trial, is not in all respects an
open one, and has, to some extent, been
considered and passed upon by this
court.
The notice of intention to move for q
new trial reei:cS, among other matters
the inSut1icicucy of the evidence to JUS
tify the decision of the court: the INSULT
cheney of the evidence to justify the find
ingS, or any Of the findings made by the
court; that the decision of the court is
against the law, and that the judgmen
and decree are against the law. Th'
, ssignment of errors found in the recert
on pages 1853 to 1861 covering thes
grounds upon which the motion is based
are full and explicit, setting ont, in som
instances. the particular point of the al
legged errors. The decision of the court
rendered on the 18th day of June, 1897
and recited as having been entered in tn
minutes of the court, is found in tn
statement on motion for a new trial o
pages to inclusive. and shows the dc
termination of the facts and law by TIL
court in precise and exact terms. TIL
written findings Of fact and conclusion
4 of law were filed on the Eth day Of Aug
ust, 1896, and are found in the statement O
motion for new trial on pages 6 to
inclusive. The judgment and deere
ordered are found in the statement G
pages l6 to 20 inclusive. The order di
missing Blossom ct al. from the action
s also found i'll the minutes of the court 5
out in the statement on motion for a ne
trial of the date on which the decisie
was rendered.
The respondent cites q number Of deci
ions of the Supreme Court Of Californ
=. to the effect, that on an appeal from
order denying motion for a new trl
i the appellate court will not consider al
has no power to consider the sufficient
of the pleadings or errors appearing
!, the Judgment roll. 1t is not necessary
say what the rule should be in the cas-
cited as those questions are not in tt
case and were not decided by this cou
This court will in such appeal, As do t
courts of California, examine the plea
ings to ascertain what the issues we
with reference to the decision announc
by the court. Upon some of the gu
tons of practice in proceedings Of Il
character, under our statute REGULATE
III the practice in appeals from orders der
ing motion for new trial, the dec
ions Of this court are not, or seem not
IL be, in harmony with the rules announ,
70. BY the decisions Of the Supreme Court
California; and we must in all ca
rs where there is or seems to be = conf
in decision between this court and
courts Of other States follow the r
announced by this court. Under subd
RS ision Of section $50 Of the code of c
procedure of California found in d,
80 ing's Annotated Code, the court of I
90 State has given a meaning to the W
~ decision used therein, as the Il
found and conclusions of law provi
W for in section 633 of the same Act.
'ute Convey vs.. Hale, 40 Cal. 555.
SA- Dominique vs.. Mascotti, "a Cal.
This court has gwen a different me
ma ing to the same word used in the s.
'en connection. 1t il said by the co
The decision is the announcement
the court of its judgment, and altho
based upon the settled facts of the
L. such facts may never be reduced to Y
. ing SO as to constitute findings wi
CE. the meaning Of that term as used in
civil practice act.''
Elder VS.. Frevert, is New. 2s3.
W.