The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-31

| The respondents petition for a re-
of the order entered therein, on the
! following grounds: That no appeal
was ever taken from the judgment
herein; that the only appeal which
J was taken was from the order deny
ing pla ntiff's motion for a new trial,
! and the jurisdiction of this court is
1 limited TO affirming or reversing that
order; and that the order entered d.
recting judgment for pla ntiff 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.
The notice states that the appeal
is from the Judgment, as well as
/ the order denying the motion Tor
new trial. The undertaking OF ap-
peal is conditioned fer the payment
Of costs on appeal from the judgment
The transcript s entitled: Statement
On Motion for New Trial and Appeal,
Copies OF all the papers required I'M
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 10 dismiss the
appeal from the judgment because OF
any alleged defect therein. nor was
the suificiency 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 suticiency, 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
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 triai, 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
ings. Upon the hearing of this mo-
! tion and request, the 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
of appellant. Counsel for. 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 It was error in the
Court not to give plaintiff judgment
r In accordance with this finding. Coun
sci for appellant in their opening
e brief take the position that they were
e entitled to judgment at least to the
extent of the sand and the exclusive
o by the trial court. They close thei
- brief with the following paragraph:
g. wherefore plaintiff and appellan
prays that, inasmuch as all the ev
dence is before the court the judg
ment be modified by directing the dc
PENDANTS to execute a deed of sal
property to plaintiff; and should tn
court find that plaintiff is not ent
tied to the relief prayed for in tn
ii complaint, but is entitled to tn
~ lesser relief of deed to the sand an
A. exclusive rights to remove the sam
that the judgment be modified q