The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-29


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 pla. ntiff's motion for a new trial,
and the jurisdiction of this court is
limited TO affirming or reversing that
order; and that the order entered di-
recting judgment for plaintiff is not
warranted even had an appeal been
taken from the judgment.
1t Is contended that the record on
appeal does not contain the judgment
roll and, consequently that there can
be no appeal from the judgment
Tie notice states that the appaa!
is from the judgment, as well as
the order denying The motion Tor a
new Trial. the undertaking on APP
peal is conditioned for the payment
VI So'to VA etDit-6tI tAciII JblNlS5 lllS4It
The transcript IS entitled: Statement
on Motion for New Tria' anu Appeal"
Copies OF all the papers required IN
DER Compiled Laws Sec. $500 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 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 suficiency, 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
judgment, but that all that was prop
er to be done under such circum-
stances, was the granting OF a new
is an issue upon material facts, which
may possibly be decided a more
than one way on another trial, there
should be a 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 test
mony offered by the plaintiff. The
court ordered judgment in favor OF
Defendants. Findings prepared by de
PENDANTS counsel, which negatived the
allegations of plaintiffs complaint that
there was 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 certain other find
! inss. Upon the hearing of this mo-
! ton and request, .ne 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 tc
except to this finding, if objections
were had thereto, but, n any event
taken. In plaintiffs assignments o.
error in his statement on motion To-
a new trial and appeal the point i:
twice made that It was error in th'
| Court not to give plaintiff judgmen
? In accordance with this finding. Coun
sci for appellant in their openin
e brief take the position that they wer
e entitled to judgment at least to tn
extent Of the sand and the eXclusiv
L license to remove the same as foun
by the trial court. They close thei
brief with the following paragraph:
. Wherefore plaintiff and appellar
prays that, inasmuch as all the ev
dence is before the court the jud
ment be modified by directing the d
PENDANTS to execute a deed of sa
+ property to plaintiff; and should II
court find that plaintiff is not EN-
tied to the relief prayed for in Il
Il complaint, but is entitled to tt
,r lesser relief of deed to the sand al
le exclusive rights to- remove the sam
that the judgment be modified 9