The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-26
On Petition for Rehearinq

HedlIuS Ii tulS dCLiOu, OT mOulUcdLlOu
OF the order entered therein, on the
following grounds: That no appeal
was ever taken from the judgment
herein; that the only appeal which
was taken was from the order deny
ing plaintiffs motion for a new trial,
and the jurisdiction of this court Is
limited 10 affirming or reversing that
order; and that the order entered di-
recting judgment for plaintiff is not
warranted even had an appeal been
taken Irom the judgment.
1t Is commended that the record on
appeal does not contain the judgment
roll and, consequently, that there can
be no appeal from the judgment.
The notice states that the aDpaa.
IS from the judgment, as wei az
the order denying the motion for
new trial. The undertaking on ap-
peal IS conditioned for the payment
Of costs on appeal from the judgment
The trnscript 5 entitled: statement
on Motion for New Trial and Appeal"
COPIES OF all the papers required I'M
der Complied Laws Sec. 1890 to be
embodied in The judgment roll, with
the exception of the summons, are
contained in the transcript. There
was no motion made TO dismiss the
appeal from the judgment because OF
any alleged defect therein nor was
the suTlcency Or regularity Of the
appeal questioned upon the presen-
tation OF the cause. The case was
brlefed argued and presented as
though the appeal was entirely reg
uiar. Its sufficiency, therefore. can
not now be questioned upon petition
for rehear.ng,
1t is urged that this Court, in any
event, ought not to have directed
that judgment be entered in favor of
the appellant, upon reversal of the
JNNSAANHt, Dul lAol OH ludl was iOp-
er to be done under such circum-
stances, was the granting OF new
trial, the rule being, that where there
is an issue upon material facts, which
may possibly be decided a more
than one way on another trial, there
should be new trial ordered on a
reversal of the judgment"
Upon the trial of this cause the
respondents offered no evidence, they
submitting the case upon the tes'l-
mony offered by the plaintiff. The
court ordered judgment in favor OF
Defendants. Findings prepared by de,
PENDANTS counsel, which negatiyed the
allegations of plaintiffs complaint that
there was sale of the land described
therein, were approved by the court.
Counsel for the plaintiff moved to
strike out the findings SO allowed and
made request for certain other find
ings. Upon the hearing of this mo-
ton and request, tie court made,
among others. the additional finding
relative to the sale of the sand to
the plaintiff and the right or license
to remove the same, in pursuance Of
which finding judgment was ordered
by this Court to be entered in favor
! Of appellant. Counsel for respondent
though participating in this hearing,
! may not have been called upon to
except to this finding. if objections
were had thereto, but, n any event,
no objection was made or exception
! taken. In plaintiffs assignments OF
/ error in bis statement on motion for
a new trial and appeal the point is
| twice made that It was error in the
| Court not to give plaintiff Judgment
! IN accordance with this finding. Coun
! sci for appellant in their opening
brief take the posti that they were
entitled to judgment at least to the
extent Of the sand and the exclusive
license to remove the same as founC
by the trial court They close theil
brief with the following paragraph:
Wherefore plaintiff and appellan
prays that, inasmuch as all the ev.
dence is before the court the judy
ment be modified by directing the de
PENDANTS to execute a deed of sal,
property to plaintiff; and should tn
court find that plaintiff is not emit
tied to the relief prayed for in tn
complaint, but is entitled to tn
lesser relief of deed to the sand an
. exclusive rights to remove the same
that the judgment be modified a.