Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-10

IN The SUPREME COURT OF TIE
STATE OF NEVADA.
Ebenezer TwaddIe and Ebenezer
Twaddle as Specia! Admir-, Of the
Estate of Alexander 1Waddie, de
ceased,
Plaintiffs and Respondents
v.
Theodore Winters. A. c. Winters, L
W. Winters and Samuel Tonga
baugh,,
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 resi- -eats have moved to dis
miss the 39sal from the judgment
because l. 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 new trial, upon
the ground that the statement was
not filed within the time prescribed
by law The appeal from the judy
ment is dismissed because not taken
until March, 1905, more than one
year after its 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 chat 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 NJ 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 bu.,iness 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 1908, when a recess was TAX
en- until further order Of the court.
! There was no other session until
! Judge Curriers' return on August lItn.
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 CT 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 INC
judge, except the Judge having charge
of the cause Or proceeding shall grant
further time to plead. move, or do any
act or thing required to be done ir
any cause or proceeding, unless it be
shown by affidavit that such judge il
absent from the state, or from som
other cause is unable to act
Rule XII provides: when any
district Judge shall have entered upol
the trial or hearing Of any cause u
proceeding, demurrer or motion, o.
made any ruling, order or decision
therein, no other judge shall do an,
act or thing in or about said cause
proceeding, demurrer or motion, III
. less upon written request Of the judge
who shall have first entered upon TIL
, trial or hearing of said cause, proceed
, ing demurrer or notion
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 Nevad;
shall possess equal coextensive an,
concurrent jurisdiction and power
They shall each have power to hol'
court in any county of the State
They shall each exercise and perform
the powers, duties and functions .
2 the court, and Of Judges thereof, AMI
{ of Judges at Chambers. Each judg
shall have power to transact bushes
, which may be done in chambers a
, any point within the State. All Q
, this section is subject to the prov
: sions that each judge may direct an
, control the business in his own di:
. trict, and shall see that it it properl
/, performed"
We think under the minute orde
and circumstances related, the powe
inherent in Judge Curler to exten
the time of filing the notice and stat,
ment became conferred upon Judg
Murphy during the formers absenc
and that Judge Murphy became tn
Judge in charge, endowed with the al
thOrity to grant the extension withol
the presentation of the affidavit shoy
ing the absence or inability of Juds