Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-06-28
Sawyer & Sawyer,
OPINION
BY Massey, G. J,

BY Massey, CO,
This appeal.is taken from Judgment
and an lorder. The respondent asks us
to dismiss both appeals. The appellants
confess the motion as to the appeal from
the judgment and resist the motion as to |
the appeal from the order, By the judg |
ment the respondent was awarded 240 |
square inches under six inch pressure, of
the waters of the Muddy river. flowing
through certain bitches therein named,
for the purpose of irrigation. The APP
pellants interposed motion for a new
trial based upon statement. On the
18th day of iDecember, 1900, the court
ordered that if written consent to a
modification of the judgment IN this case
50 far as to limit and restrict the right
and use of the plaintiff to IS square in
ches of water running under a six inch
pressure between noon of the first day of
July of each year and noon of the first
day of February of the following year, is
fled herein on behalf of the plaintiff
within sixty days. then the motion for
new trial shalls be deemed denied but
otherwise shall be granted.' The appeal
was taken from this order on the 9th day
of January, 1901 On the 18th day of Feb
ruary, 1901, the respondent filed what is
termed his written consent to the mOditi
cation of the judgment as required by
the order, in which he states that 'in
order to avoid the expense of a new trial
and without waving any of his rights but
adhering to the same consents to such
modification on the condition that no
further proceedings shall be had in said
case The respondent claims that the
appeal from this order was taken prema-
turely-that the order did not become eff
fective denial of appellants motion
until the written consent of the m oditi-
o,+ior rs filed on the 18th day of Feb
ruary, 1901
W hlie this court has refused to CEN
s der appeals taken prematurely and dis
missed the same, yet the showing made
for and against the motion presents 2
new and peculiar question which deter
mines the appeal, and we therefore d'
not consider respondents motion fur
Their than is necessary in passing upoi
the main question As to whether there l.
ANYTHING in the order under the showing
of the record, from which appellants
have the right of appeal. 1t IS a genera
rule that unless the statute restricts tn
court it has the power to impose reason
able terms as a condition to the granting
or denying a motion for new trial.
Hayne on New Trial Il Appeal, SCI
166 ct seq.
Ia Ency. Pl. 4 Pr. p. 929.
We have been unable to find any sue
restrictive provision in our statute
While the order of the court quoted
peculiarly worded, yet when considere
as whole, it is clear that the order
effect, granted new trial unless the II
spondent consented to the modiicat,o
prescribed therein, and in case of his fai
ure to comply with the requirements
the order, then the right to new tri
became absolute. No conditions we
imposed upon the appellants, and the a
ceptance of the conditions imposed upt
the respondent by the order could not
made by him so as to preclude the rigl
of appellants to appeal. The reco
shows that the respondent did not &C
sent to the conditions of the order. I
in express terms, imposed conditions
his written consent not authorized
the order, and which the court un'
the record in this case was pOwerless
impose. Respondent could not by
cooperating into his written consent c.
ditionS which might relieve him OF
effect of the modified Judgment preclI