The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-22

~ 49, poiA'SA'o pStiIACA 1Ol q IL
hearing in this action, or modification
OF the order entered therein, on the
TO owing 8 ounds: That no appeal
VS. ever taken from the judgment
herein; that the only appeal which
was taken was from the order deny
ing plaintiffs motion for new trial.
and the jurisdiction of this court IS
led 70 a.ilrming or r.. eIai-., tn't
order: and that the order entered di-
rec ing judgment for pla ntlff is not
t~h'n from the judgment,
u is contended that the record on
appeal does not contain the judgment
rel and, consequently, that there can
be 40 appeal from the JuJgl ent.
me notice states that e appeal
is from the Judgment, a.; well as
the order denying the M on Tor a
new trial The undertaking on aD-
peal Is conditioned fer the payment
OF costs Oh appeal from the Judgment
The trnscripl s entitled: statement
On Motion for New Trial and 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
Dnf6inpd in troD
was no motion made to dismiss the
appeal from the judgment because OF
any alleged defect therein, nor was
the suflclencv 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 lis sufficieney, therefore, can
not now be questioned upon petition
for rehear.ng,
It 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 a more
than one way on another trial, there
should be new trial ordered on
reversal Of the judgment"
Upon the trial of this cause 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 negatived the
allegations of plaintiffs 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 II other ind
ngs 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
/ VII Oh 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
no objection was made Or exception
taken. In plaintiffs assignments o
error in his statement on motion TO
a new trial and appeal the point i:
twice made that t was error in thu
Court not to give plaintiff judgmen
in accordance with this finding. COun
sci for appellant in their openin
brief take the pos ton that they wer
: entitled to judgment at least TO tn
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 deed of sal
property to plaintiff; and should til
court find that plaintiff is not emf
tied to the relief prayed for in tt
Il complaint, but is entitled to tt
r. lesser relief of a deed to the sand al
- exclusive rights to remove the sam
that the judgment be modified q