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

ing on appeal and that the same is III due .
form: the fact and time of tie settlement
of tEei-!atemcnt if there be one; and also
that the appellant has received a aulycerti-
fed transcript of the record, or that he
has not requested the clerk to certify to
a correct transcript of the record, or if he
has made such request. that he has not
paid the fees there Tor, if the same had
been demanded. Nanifestly, the intent
OF these rules, as gathered from the Ian
guage used, is to prevent a lItigant from
delaying proceedings by failing refus
ing to file the record on appeal, after he
has been furnished with the proper trans
crpt. and to prevent delay, here all the
steps have been taken necessary to an
appeal in the lower court, and the liti-
giant fails or refuses to have made the
proper transcr pt or record on appeal.
The facts shown in this case do not bring
1t within the meaning or intention of the
rule. No one Of these facts was shown
offered 10 he sh wn by the respondent
in the manner required by the rule, but
on the other hand. in the same motion,
respondent not only fails to show that an
ltbeen filed, but attacks the form of the I'M
dcrtaking and asks that the appeal be
dismissed for defects appearing in the
record and in the undertaking. The
Clerk of this Court. who is one of the
appellants in the action, is criticised for
| not filing the record on appeal as origin
ally furnished to him and for returnii e
the same to the Clerk of the District
| Court after the undisputed showing that
| the same was not in the form required by
! Subdivision Three of Rale ~ of this
| Court, and against the direct inhibition
| of Subdivision Four of the same rule. to
! the effect. that a record which fails to- con-
! form to thu rule shall not he received or
| lied by the Clerk Of the Court. 1t is
| also urged that after the respondents
motion was set for hearing, the record
was taken without leave from this Court
and materially changed and altered by
| supplying an index ana certificate. etc.
! The record, and the showing made other
wise, is to the effect that the record was
| not filed until the 18th day of July, 1899
| We do not know of any rule of law. or of
! this Court. that forhids or prohibits any
| ljtigant. be he officer of the Court or not
! from having his record on appeal fur
nisiled him for fling. properly inieXed
as required by the rule and properly GER
/ titled As required by the statute. before
! filing OF offering he same for filing. 1t
does appear from the testimony OF the
Judge before whom the cause was tried,
In Il after the fling Of the record, certain
letters introduced in evidence, part ny
the appellants and part by the respon
dent, were identified by him as HAY ing
been used on the hearing OF the motion
for new trial. This was done pursuant
to a stipulation between the parties sub
uniting he motion for a new trial to the
District Court. 1t appears that at the
time of the hearing Of the motion for a
new trial. the Judge endorsed the envel-
opes in which the letters had been mailed
in the proper form. but dld not endorse
The letters Afterwards. and before the
Hing of the record on appeal. the appel
iants appearing by George A. Bartlett
ESD attorney, requested the District
j Judge to endorse the letters introduced
in evidence by them. This request was
! oIiectea to by Peter Breen. Esq, one OF
the attorneys OF the respondent, unless
2 certain letters introduced in evidence by
the respondent. W hich were at the time
not IN the possession of the Court OF
counsel, were also endorsed as having
= been used on the hearing of the motor
for a new trial. Upon this showing thu
! District Judge refused to endorse any o
the letters. but at a subsequent date die
endorse these exhibits Of both the re
spoudent and appellants at their request
The appellants have shown by the writ
t ten stimulation filed in said cause between
t the parties. that it was expressly agreed
d that the motion for a new trial should b
submitted to the trial court upon the en-
l. crossed statement. pleadirg>. records
IL files, exhibits and dispositions in the cast
and that all such records. files, exhibit
and deDositionS should be considered an
u" referred to as having been used upon III
= hearing Of said motion for new tria
: and should be endorsed by the Judge q
- having been so used. 1t does not appea
- in any manner that any of the eNhibii
> 50 endorsed by the District Judge, wei
- stipulation, and it appears that the fti
y ure of the Judge to endorse the same Wa
one of those excusable mistakes, fc
which the appellants should not be he'll
W and that the subsequent endorsemel
gu was made with the consent ofthe respol
- dent who also asked and received liz
NC favor in keeping with her stpulatia
'o We are not willing to dismiss the appes
- as asked by the respondent, for tb
reason.
III SECOND. II is claimed by the respo
7'i dent, that the appeal should be dismss'
because the notice of motion for a he
'"' trial was inlerposcd prematurely. T
~ notice of motion for a new trial w
io' served and filed on the 18th day of Jul
" 1898. The respondent contends that,
o"' the findings of fact were made and fill
me on the 10th day of Juue, 1898, under Ii
l''o of decisions of the Supreme Court