The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-17

Inc respondents petition for 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
he elm; that the only appeal which
was taken was from the order deny
ing pia ntiff's motion for 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 net
taken from the judgment.
1t is contelded 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 appaa!
is from the judgment, as well as
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 S entitled: Statement
on Motion for New Tria! and Appeal
Copies OF all the papers required IN
der Compiled Laws See. $500 to be
embodied in the judgment roll, with
the exception OF the summons. are
contained in the transcript. There
was no motion made ia 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 sufficiency, 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
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 new
trial, the rule being. that where there
is an issue upon material facts, which
may possibly be decided p more
than che 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 negatived the
allegations of plaintiffs complaint that
there was a 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 certa n 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
VIII CHI finding judgment was ordered
of appellant Counsel tor 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 his statement on motion for
new trial and appeal the point is
twice made that t 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 position that they were
entitled to Judgment at least 10 the
extent of the sand and the exclusive
: by the trial court. They close theil
> brief with the following paragraph:
? Wherefore plaintiff and appellant
prays that. inasmuch as all the ev.
dence is before the court the judg
ment be modified by directing the de
PENDANTS to execute deed of sait
property to plaintiff; and should thu
court find that plaintiff is not ent;
tied to the relief prayed for in III,
I complaint but is entitled to tn
r lesser relief of deed to the sand an,
., exclusive rights to remove the same
that the judgment be modified &C