Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-27

IN THE SUPREME COURT O60THE
STATE OF NEVADA.
Ebenezer TWaddie and Ebenezer
TwaddIe as Special Admir-, of the
Estate of Alexander TWaddIe, de-
ceased,
Plaintiffs and Respondents
v.
Theodore Winters, A. c. Winters, L.
w. Winters and Samuel Tonga
baueh,,
Defendants and Appellants
From I'd Judicial District Court, Wash
oe County.
Messrs. Cheney and Massey, attorneys
for Plaintiffs.
Alfred chartz, attorney for Defend
ants.
DECISION
The respondents have moved to dis
miss the appeal from the judgment
because it was not taken within one
year, and to dismiss the appeal from
the order of the district court denying
appellants motion for a new trial, also
to strike from the records the state
ment on motion for a new trial. upon
the ground that the statement was
not filed within the time prescribed
by law The appeal from the judg-
ment is dismissed because not taken
until March, 1906, more than one
year after it's rendition on June %,
1903. On that day Judge Curler OF
the Second Judicial District court
who had tried the case at Reno and
rendered the decree, made in open
court and had entered in the minutes
an order that all business and all
cases and proceedings that have not
been completed or in the process CT
completion, and all new business that
may be brought before the court dur
ing the absence of the presiding Judge,
be referred to Judge M. A. Murphy
of the first judicial district court of
the State of Nevada, and that he be
requested to try. determine and dis
pose of all cases and business now
before the court in the absence of the
Judge of this district"
Pursuant TO this request Judge Mu"-
ply occupied the bench in Reno until
July 81, 1903, when recess was TAX
en- until further order of the court.
There was no other session until
Judge Curriers' return on August 18th.
On July 18th. Judge Murphy. in open
court in Reno, made an order allow
ing plaintiff until August 18th in
which to file objection to findings.
and prepare additional findings. On
August Sd Judge Murphy at Carson
City, and within his own first judi
cial district. by an eX parte order
made without affidavit OF Judge Cur
ler's absence or inability, granted the
defendants. until September Is, 1908,
within which to prepare, file and
serve their notice and statement on
motion for a new trial. Later eXtel-
sions were made by Judge Curler. but
whether they are effectual depends
upon this order which respondents
claim Judge Murphy was unauthorized
to make under Section 1877 of the
Practice Act which provides in regard
to notices and statements on motions
for new trial that the several periods
of time limited may be enlarged by
the written agreement of the parties,
or upon good cause shown, by the
court, or the judge before whom the
case is tried and under district court
rule XLIII which directs that mo
judge, except the judge having charge
of the cause CIR proceeding shall grant
further time to plead move CT do any
act Or thing required to be done in
any cause or proceeding, unless it be
shown by affidavit that such judge is
absent from the otate, Or from som
other cause is unable to act
Rule XII provides: when any
district judge shall have entered upon
the trial or hearing Of any cause or
proceeding, demurrer or motion, Or
made any. ruling, order or decision
therein, no other judge shall do any
act or thing in or about said cause,
proceeding, demurrer Or motion, I'M
less upon written request of the judge
who shall have first entered upon the
| trial or hearing of said cause, proceed
| ing demurrer or motion"
! Section 2573 of the Compiled laws,
passed after section 1877 of the Prac-
tice Act as quoted, enacts: "The dis
trict judges of the State of Nevada
shall possess equal coextensive and
concurrent jurisdiction and power.
| They shall each have power to hold
court in any county of the State.
They shall each exercise and perform
the powers, duties and functions of
the court, and of Judges thereof, and
of Judges at Chambers. Each judge
shall have power to transact business
which may be done in chambers at
any point within the State. All of
this section is subject to the provi-
sions that each judge may direct and
control the business in his own dis
trict, and shall see that it it properly
performed" Ha
We think under the minute order
and circumstances related, the power
inherent in Judge Curler to extend
the time of filing the notice and state
ment became conferred upon Judge
Murphy during the formers absence
and that Judge Murphy became the
Judge in charge, endowed with the au
thority to grant the extension without
the presentation of the affidavit show
ing the absence or inability of Judge
Curler, as the rule requires before the
order can be made by a Judge no
having tho husipess in charge