Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-23

IN THE SUPREME COURT OF THE
STATE OF NEVADA. ------------
Ebsnezer TwadjIe and Ebenezer
Twaddie rs Special Admir-, of the
Estate of Alexander Twaddle, de-
ceased,
Plaintiffs and Respondents
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 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 mCtiCn for 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 judg-
ment is dismissed because not taken
until March, 1906, more than one
year after its rendition on June %,
1909. On that day Judge Curler Of
the Second Judicial District court
who had tIied the case at Reno and
rendered the decree, made in open
court and had entered in the minutes
an order that all business end 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 ali 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 a further order Of the court.
lUrI6 WdS uO oIiltl SCoSloA uiilIl
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, 1903.
within which to prepare, file and
serve their notice and statement on
motion for a new trial. Later eXten-
sions were made by Judge Curler, but
whether they ere 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 coed cause shown. by the
court, or the judge before whom the
case is tried and under district court
rule XIIII which directs that mo
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. in
any cause or proceeding. unless 1t be
shown by affidavit that such Judge is
absent from the state, 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
4 proceeding. demurrer or motion, un
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 1878 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 hole
court in any county of the State
They shall each exercise and perform
the powers, duties and functions u
the court, and of Judges thereof, and
of Judges at Chambers Each judge
shall have power to transact bushes:
which may be done in chambers al
any point within the State. All o1
this section is subject to the provi
! sions that each judge, may direct am
\ control the business in. his own dis
4 trict, and shall see that it it properly
performed"
We think under the minute ordel
and circumstances related, the power
inherent in Judge Curler to extent
the time of filing the notice and state
ment became conferred upon Judg'
Murphy during the formers absence
and that Judge Murphy became tn
Judge in charge, endowed with the au
thority to grant the extension withou
the presentation Of the affidavit show
ing the absence or inability of Judg
Curler, as the rule requires before tn