Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-03

IN THE SUPREME COURT OF THE
STATE OF NEVADA.
Ebenezer Twaddle and Ebenezer
-- Twaddle as Special Admir-, of the
Estate Of Alexander Twaddie, de-
ceased,
Plaintiffs and Respondents
v.
Theodore Winters, A. c. Winters, L.
w. Winters and Samuel Tonga
oaugh,,
D. 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. j.
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 motion for new trial, also
to strike from the records the state
ment on motion for a 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, 1905, more than one
year after it's rendition en- June 49,
1903. On that day Judge Curler Ct
the Second Judicial District court
who had tried the case at Reno and
rendered the decree, made in open
court and had entered in the minutes
an order chat all business and 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 M. 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 all cases and bu 'iness 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 a recess was TAX
en- until further order of the court.
There was no other session until
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 TIE
defendants until September IS. 1908
within which to prepare, file and
serve their notice and statement on
motion for a new trial. Later eXteh-
sicns were made by Judge Curler, but
whether they are 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 seyera! period!
of time limited may be enlarged by
the written agreement CT the parties
o. upon good cause shC-n b. thr
court, or the judge before whom tn
case is tried and under district cCuI'
rule XLIII which directs that en-
judge, except the Judge having charge
Of the cause or proceeding shall gan
further time to plead. move. or do AM
act or thing required TO be done il
any cause Or proceeding, unless it bf
shown by affidavit that such i"3ge !
absent from the .Jlate. or from som
other cause is unable to act
Rule XII provides: When ar.
district Judge shall have entered upol
the trial or hearing Of any cause {"
proceeding, demurrer or motion, o
made any ruling, order or decisiO:
therein, no other judge shall do an
/ act or thing in or about said cause
proceeding. demurrer or motion, ui
! less upon written request Of the judg
who shall have first entered upon tn
trial or hearing of said cause, prOceed
Ing demurrer or motion"
/ Section 1913 of the Compiled laws
passed after section 1877 Of the Prac
tice Act as quoted, enacts: The dis
trict judges of the State of Neyad
shall possess equal coeXtensive an
concurrent jurisdiction and powa:
court in any county of the State
They shall each exercise and perforr
the powers, duties and functions Z
the court, and of Judges thereof. AM
of Judges at Chambers. Each judg
shall have power to transact bushes
which may be done in chambers a
any point within the State. All u
this section is subject to the prov
sions that each judge may direct an
control the business in his own di.
trict, and shall see that it it properl
performed"
We think under the minute orde
and circumstances related, the powe
inherent in Judge Curler to exten
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 al
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 th
order can be made by a Judge nc