The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-21
SUPREME COURT DECISION
NO. 1851.

SOFH6ME COOHI OESISION
No. 1851.
IN The Supreme Court of the State
Of Nevada.
william 6rancon, Appellant, VS..
N. II. West, as Administrator OF the
Estate Of 3. c. Glow, Deceased, ct
al, Respondents.
Mesers, Mack and harrington, flor
Appellant
Messrs. Cheney and Massey for Re-
spondents.
From the End judicial District Court
Washoe County.
On Petition for Rehearins
The respondents petition for a re-
hearing in this action, or modification
of the order entered therein, on the
TO lowing grounds: That no appeal
was ever taken from the Judgment
herein; that the only appeal which
was taken was from the order deny
ing plaintiffs motion for a new trial,
and the jurisdiction of this court is
limited 10 an m-1g or reversing that
order; and that the order entered di-
recting judgment for pia ntlff 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 appaa!
is from the judgment, as well as
the order denying the motion for a
new trial. The undertaking on ap-
peal is conditioned for 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 un-
der Compiled Laws Sec 5000 to be
embodied in the judgment roll, with
the exception Of the summons. are
contained in the transcript. There
was no motion made to 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 a new
trial the rule being, that where there
is an issue upon material facts, which
may possibly be decided n more
than one way on another trial, 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 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 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 certain other find
ings. Upon the hearing of this mo-
! ton and request, the court made.
among others. the additional fndiE 2
relative to the sale of the sand to
the plaintiff and the right or license
10 remove the same, in pursuance of
VIII 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 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 fol
/ a new trial and appeal the point is
! twice made that Il 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 to the
extent of the sand and the exclusive