The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-23

nearing IN tnlS aClOn, or mOdlncat1On
of the order entered therein, on the
following grounds: That no appeal
was ever taken from the judgment
herein; that the only appeal which
was taken was from the order deny
ing pla ntiff's motion for a new trial,
and the jurisdiction of this court is
limited to affirming or reversing that
order; and that the order entered d.
recting judgment for pia ntlff is net
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 40 appeal from the Jud gment
The notice states that the appeal
is from the judgment, as we'll as
the ORDER denying the motion Tor
new trial. The undertaking on ap-
peal Is conditioned for the payment
OF costs Oh 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 to dismiss the
appeal from the Judgment because OF
any alleged defect therein. nor was
the sutfIciency Or regularity of the
appeal questioned upon the presen-
tatlOn OF the cause. The case was
briefed, argued and presented as
though the appeal was entirely reg
ular. Its suficiency, 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 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 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 a 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 ind
| ings. Upon the hearing of this mo-
ton and request, 1ne 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
/ 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 tC
| except to this finding if objections
, were had thereto, but, n any event
no objection was made or exception
taken. In plaintiffs assignments O
error in his statement on motion fo
a new trial and appeal the point i:
twice made that It was error in thu
[ Court not to give plaintiff judg,nen
! in accordance with this finding. COun
sci for appellant in their openin
brief take the pos that they wer
entitled to judgment at least to tn
extent of the sand and the exclusiv
license to remove the same as foun
by the trial court. They close thei
: brief with the following paragraph:
= Wherefore plaintiff and appellar
prays that, inasmuch as all the ev
dence is before the court the jud:
ment be modified by directing the d.
PENDANTS to execute a deed of sal
property to plaintiff; and should tn
| court find that plaintiff is not sent
tied to the relief prayed for in I'll
I complaint, but is entitled to tt
: lesser relief of deed to the sand ar
: exclusive rights to remove the sam
that the judgment be modified q
81