Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-14

IN THE SUPREME COURT OF THE
STATE OF NEVADA.
Ebenezer TWaddle and EbeneZer
TwaddIe as Specia, Admir-, Of the
Estate of Alexander TWaddle, de.
ceased,
Plaintiffs and Respondents
Theodore Winters, A. c. Winters,
w. Winters and Samuel Tonga
baugh,,
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.
DECISION
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 p CIV trial. upon
the ground that the statement was
not filed within the time prescribed
by law. The appeal from the juds-
ment is dismissed because not taken
until March. 1905, more than one
year after its rendition on June 70,
1908. 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 OF
completion, and all new business that
may be brought before the court dur
ing the absence of the presiding judge,
be referred 10 Judge NJ. 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 n Reno until
| July 81, 1908, when recess was tax
! en- until a 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 Gu:
ler.s absence or inability, granted the
defendants until September IS, 1908
within which to prepare, file and
serys their notice and statement on
| motion fer new trial. Later exten
sions were l,ade by Judge Curler, bu
whether they are effectual depends
upon this order wh.!c respondents
, claim Judge Murphy was cnau'horlze.
to make under Section 1871 OIL .ne
J Practice Act which provides in res, d.
to notices and statements on motions
for new trial that ''the several periods
of time limited may be enlarged by
! the written agreement of the parties,
or upon good cause shown, by the
court, or the Judge before whom the
case is tried" and under district court
rule XLIu. which directs that mo
Judge, except the Judge having charge
Of the cause or proceeding shall grant
further time to plead, move, or do any
act or thing required to be done in
any cause or proceeding, unless it be
shown by affidavit that such judge is
absent from the state, or from some
other cause is unable to act
Rule XII provides: when any
district judge shall have entered upon
the trial or hearing of any cause ~
proceeding, demurrer or motion, OF
made any ruling, order or decision
therein, NO other Judge shall do any
act or thing in or about said cause
proceeding, demurrer or motion, IN
less upon written request of the Judge
who shall have first entered upon the
} trial or hearing of said cause, proceed
ing demurrer or motion"
Section 1878 of the Compiled laws
passed after section 1877 of the Prac
tice Act as quoted, enacts: THE dis
trict judges of the State of Nevada
shall possess equal coextensive and
concurrent jurisdiction and power
Z They shall each have power to holc
court in any county of the State
: l.
the powers, duties and functions o
the court, and OF Judges thereof, and
of Judges at Chambers. Each judge
shall have power to transact bushes:
| which may be done in chambers a
, any point within the State. All o
| this section is subject to the provi
sions that each Judge may direct am
control the business in his own dis
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 au
thority to grant the extension withou
j the presentation of the affidavit show
, ine 4he absence or inability of Judg