The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-16

The respondents petition for a re-
hearing in this action. Or modification
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 to affirming or reversing that
order: and that the order entered d.
recting judgment for plaintiff is not
warranted even had an appeal been
taken from the judgment.
Il IS ContonGcd that the record on
appeal does lie. contain the judgment
roll and, consequently. that there can
De no appeal from the judgment,
The notice states that tee appeal
is from the judgment. as wen as
the order denying the motion for a
new trial. The undertaking. OF ap-
peal IS conditioned for the payment
Of costs Oh appeal from the judgment
The trnscript s entitled: Statement
on Motion for New Trial ana Appeal"
Copies Of all the papers required I'M
der Compiled Laws Sec $500 to be
embodied il the judgment roll, with
the exception Ct 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 sufficiency or regularity Of the
appeal questioned upon the presen-
tation OF the cause. The case was
briefed. argued and presented as
though the appeal was entirely reg
ular. Its suhiciency, therefore. can
not now be questioned upon petition
for rehearng.
1t is urged that this Court. in any
event. ought not to have directed
that judgment be entered in favor of
inc dpjCIldIt, upon tISdI Vi int
judgment, but that all that was prop
er to be done under such circum-
! stances, was the granting or a new
trial. the rule being that where there
is an issue upon material facts, which
may possibly be decided n 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, the,
submitting the case upon the test
/ mony offered by the plaintiff. The
court ordered judgment in favor OF
/ Defendants. Findings prepared by de
! PENDANTS counsel, which negatiyed the
/ allegations of plaintiff complaint that
! there was a sale of the land described
/ therein, were approved by the court.
J Counsel for the plaintiff moved TO
] strike out the findings so allowed and
made request for certa other find
ings. Upon the hearing OF this mo-
! ton and request, the court made,
among others. the additional finding
relative to the sale of the sand to
the plaintiff and the right or license
10 remove the same, in pursuance Of
+ VIII oh finding judgment was ordered
by this Court to be entered in favor
Of appellant. Counsel for respondent
though participating in this hearing
may net have been called upon 10
+ except TO this finding, if objections
30 objection was made OF exception
taken. In plaintiffs assignments OF
error in his statement on motion fol
a new trial and appeal the point is
twice made that t was error in the
Court not to give plaintiff judgmen
IL accordance with this finding Coun
sci for appellant in their opening
brief take the position that they wer}
entitled to judgment .at least 10 The
eNteut Of the sand and the exclusive
license TO remove the same as foun,
by the trial court They close thei
brief with the following paragraph:
Wherefore plaintiff and appel!an
prays that. inasmuch as all the ev
dence is before the court the jude
ment be modified by directing the dc
PENDANTS to execute a deed of sal
property to plaintiff: and should tn
court find that plaintiff is not ent
tied to the relief prayed for in tn
complaint. but is entitled to tn
: ! lesser relief of a deed to the sand an
, exclusive rights to remove the same
that the judgment be modified az