Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-07


TwaddIe as Special Admr.. Of the
Estate of Alexander Twaddle, de-
ceased,
Plaintiffs and Respondents
v.
Theodore Winters, A. c. Winters, L.
w. Winters and Samuel Tonga
baugh,, go 81 - -,...l ..
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. %. "a g.
DECISION t--
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 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 its rendition on June %,
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
NAV 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 nc other session until
Judge Curriers' return On August 18th.
On July 18th. Judge Murphy, in cpan
court IN hSUO HlduS dI1 oluCl olio"
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
ier's absence or inability, granted the
defendants until September IS, 1903.
within which to prepare. file and
serve their notice and statement on
motion for a new tria., Later eXteh-
sions were made by Judge Curler, but
whether they are ofectual 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 several periods
of time limited may be enlarged bv
the written agreement CT the parties,
O. upon good cause shown b. tho
court, or the Judge before whom the
case is tried and under district court
rule XLIII which directs that mo
judge, except the Judge having charge
OF the cause or proceeding shall 8 ant
further time to plead. move. or 60 any
act Or thing required to be done in
any cause or proceeding, unless it be
shown by affidavit that sucn judge :
absent from the state, or from SOM
other cause is unable to act
Rule XII provides: when any
district Judge shall have entered upon
the trial or hearing of any cause q
proceeding, demurrer or motion, o.
made any ruling. order or decision.
therein, no other judge shall do an,
act or thing in or about said cause
proceeding, demurrer or motion, un
less upon written request of the judge
who shall have first entered upon thu
trial or hearing of said cause, proceed
ing demurrer or motion"
Section 2573 of the Complied laws
passed after section 1877 of the Prac
tice Act as quoted, enacts: The dis
trict judges of the State of Nevad;
shall possess equal coeAteIsive an;
concurrent jurisdiction and power
They shall each have power to hol
court in any county of the State
They shall each exercise and perfCrr
the powers, duties and functions L
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 i
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 fling the notice and stat
ment became conferred upon Judg
Murphy during the formers absenc
and that Judge Murphy became tn
Judge in charge. endowed with the al
thority to grant the extension withol
the presentation of the affidavit SHOW
ing the absence or inability of Judg
Curler, as the rule requires before tn
order can be made by a Judge NJ
having the business in charge.
Judge .Curar'S absence was DrpSIn