Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-01-24
Supreme Court Decision.

In the Supreme Court OF the State OF
Nevada.
(No 5000
/. Yori, Respondent,
f. Cohn. Appellant.
Appeal from the District Court OF the
State of Nexada. in and for Doug
las County. Hon. c. {. Mack.
Judge.
A. Chartz, /
For Respondent.
D. W. Virgin,
Samuel Plat,
Trenmor Coffin,
For Appellant.
On Petition for Rehear1ag- Belk~
nap. j.
The Judgment Was reversed upon
the ground that continuance should
have been granted lori V. Cohn. O.
Pac. Rep. o45 a rehearing has con
WINGED me t'iat the judgment should
have been affirmed for this reason:
The affidavit for continuance shows
that at the time the case was set down
for t-iaI in the District Court the wit
nesses ior whose absence the contin
uance was asked were in the State OF
California. and beyond the luTi sdiction
OF the courts OF this State. Under
these circum stances it was the duty of
appellant to haze procured their depo-
sitons. Their promise to be present
at the trial win not excuse him ii they
do not attend,
\ preliminary motion ~as made tby
counsel for respondent TO strike from
the files document styled Report
cr's Transcript OF Testimony" Tor rea-
sons specified in the notice. enc OF
which was that ii is noa certified by the
District Judge or designated by him as
having been read or referred tc, on the
motion for new trial nor agreed to by
the attorneys in the case as having
been 50 ,rsel. Practically the same
question: and upon she same testinlon,
was before Us IN proceeding in mar
darnus commenced by appellant agains
the District Judge requiring him TO il
entity Tins same testimony. or to Shc,v
cause. etc.
At the hearing in that case the test
monv 0f the District Judge was to the
effe0 that the statement had not beer
agreed to by counsel ard that he hac
in fact sealed it. after notice gwen
and that the testimony here mentioned
was not used 81 referred to on t.;
hearing d the motion Tor new .rial
Testimony ,ellding to support appel
lant's position was also introduced, BIZ
the ccnrt hell that as the testi1norn,
was conflicting. appellant had failed t,
establish a clear legal right to the yri
and it was therefore denied
State i-,> Rel. Cohn v. Mack. 8
Pac. Rep. 1925.
The purpose OF appellant in that pro
ceeding was. and his opposition TO TIL
motion i. 10 make the testimor,
which the certificate OF the Dls:ric
Judgt implicitly. and his evidence di
rectly, shows was not read or refer
red to upon the hearing OF the motion
for new trial part OF the record OF
appeal in this case
By Section io5 OF the Civil Practic
Act it is made the duty OF the judg
to settle statements upon motion TO
new trial which have not been agree,
to-
Allow ne proper credit to the cert
fcate it appears tl1erefrom that tn
statement was not satisfactory to til
opposite party as originally prepared
and tfEat the Judge determined til
claims Of 'eacl, side according to til
facts and made the statement cor1for,
to the truth. His certificate that til
statement had ieeen allowed by him an
IS correct IS the authoritative record i
this court and ezsnot be ilnpeacl,ed b
extrlnsic evidence II defective or II
correct it mus; be corrected in Ii,
District Court.
Gardner V. B. c. & n. r. Ry. c.
Iowa, 58S;
Penn. Co Y. Sears. I.eo Ind. 4o-
Roads V Hickman. - Cal. 40.
Al the close OF plaintiff case nor
S,,:+ .,sr.-o.1 Aoo-, ~,