The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-18

nearing III lnlS acIlOn, or mOdlhcatlOn
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 plaintiffs motion for a new trial,
and the jurisdiction of this court is
limited to affirming CT reversing that
order; and that the order entered di-
recting judgment for plaintiff is not
warranted even had an appeal been
taken from the judgment.
1t is contcnded 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
new trial The undertaking on ap-
peal is conditioned for the payment
OF costs on appeal from the judgment
The trnscript 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 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 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 z more
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
court ordered judgment in favor Of
Defendants. Findings prepared by de
allegations Of plaintiffs complaint that
there was a sale of the land described
Counsel for the plaintiff moved to
strike out the findings so allowed and
ings. Upon the hearing of this mo-
ton and request, Tue court made,
among others, the additional finding
relative to the sale of the sand to
the plaintiff and the right or license
VIII oh finding judgment was ordered
by this Court to be entered in favor
of ont al ri,
though participating in this hearing
may not have been called upon tc
| were had thereto. but, n any event
| no objection was made or exception
| error in his statement on motion fol
a new trial and appeal the point I:
twice made that t was error in The
| Court not to give plaintiff judgmen
! III accordance with this finding Coun
sci for appellant in their openin;
brief take the position that they wer-
entitled to judgment at least to tn
tAttIl III tHt Sduu anu lUS 6AcluSlN'
license to remove the same as foun
by the trial court. They close thei
; brief with the following paragraph:
Wherefore plaintiff and appelan
prays that, inasmuch as all the ev
dence is before the court the juds
ment be modified by directing the de
PENDANTS to execute deed of sal
property to plaintiff; and should tn
court find that plaintiff is not ent
tied to the relief prayed for in tn
complaint, but is entitled to tn
lesser relief of deed to the sand an
, exclusive rights to remove the SAM
that the judgment be modified a.