Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-03-01
Opinion by Massey, c. J.

Inc proum1Qdry mOClOu 10 SLTlk0
cut the statement, interposed by res
pondents in the District Court and |
renewed in this court, involves the |
construction of a stipulation between
the parties entered into on the day |
the findings were filed and the judg-
ment rendered. The stipulation inter |
ala provides that all proceedings in
the action shall be stayed until the
3Oth day OF November, 1900, and that
within forty days thereafter the ap-
pellants may make application for
additional findings, file and serve not
ice Of intention to move for a new
trial, and file and serve the state
ment on motion for a new trial. The
notice Of intention was filed and serv-
ed on the Goth day of October, 1900,
and the proposed statement on mo-
ton for new trial was filed and serv-
ed on the 5th day of January, 1901.
1t is claimed by the respondents that
while under the stipulation the no.
tice of intention may be filed at any
time before the expiration of the
forty days, the relative time for filing
the statement on motion for new
trial provided by the Civil Practice
Act. Comp. Laws, Sec. 3292) after
the filing of the notice of intention,
was not changed by the stipulation,
and therefore the statement not hav-
ing been filed within five days after
the filing and serving the notice of
intention, it should be disregarded
and stricken out.
1t is general rule that stipulations
between parties should receive fair
and liberal construction in harmony
with the apparent intention of the
parties and the spirit of justice, and
in the furtherance of fair trials upon
the merits, rather than narrow and
technical one calculated to defeat the
purposes Of their execution. and in
all cases of doubt that construction
should be adopted which is favora-
BILE to the party in whose favor it
is made.
O'Neil V. Cleveland, New. AS5,
Ins. Co. v. Harris. 81 U. S. 331, "a
Law. Ed. 959
Sweeney v. The G.. F. & C.. Ry.
Co., II Mont. 523.
20 Ency. Pl. & Pr. 657, ct seq.
Under this rule it is clear to us that
the construction contended for by
respondents is too narrow and tech
nical. The appellants were not
bound to perform any one or all OF
the acts covered by the stipulation
at any specified time. They could
we believe, under a liberal cOnstruc
ton in the order named, perform an,
or all of the acts at any date within
the time limited. To hold as conten
ded by the respondents would,
seems to us, necessitate the interpo
lation of language not found in tn,
stipulation, and if such had been tn
intention of the parties it was use
less and absurd to have included il
the stipulation any matter relatin
to the time Of filing and serving tn
statement on motion for a new tria
The intention of the parties NANTES
from the language used, was tina
the stipulation should stand in lie
of the provisions of the statute n
gulating these matters. The case {
The State v. Cheney, "a New. %
cited by respondents in support
their contention, is not in point, an
the reading of the facts of that cas-
is sufficient to distinguish it from tn
cause at bar without discussion. Th
motion to strike out will therefore /
denied.
The respondents brought this a
tion against appellants for the rest
tuition of the waters of Reese Riv,
and to restrain and enjoin them fro
diverting any of the waters therec
and from preventing the usual na
ural flow of the waters thereof or al
portion thereof, from flowir
to the lands of respondents. TT
complaint also contains a gener
prayer for equitable relief. Omittir
all formal parts of the complaint, I'll
matters pertinent to the uuestit
considered on this appeal as allege
are that the respondent Walsh, al