The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-05-25

The respondents petition for a re-
hearing in this action, or modification
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 or reversing th3t
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 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 for a
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
though the appeal was entirely reg
ular. Its sufficiency, therefore, can
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 a 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 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, Tue court made,
among others, the additional finding
relative to the sale of the sand to
tfe plaintiff and the right or license
to remove the same, in pursuance OF
! which finding judgment was ordered
by this Court to be entered in favor
Of appellant. Counsel for responder
though participating in this hearing
may not have been called upon t.
except to this finding, if objection
were had thereto, but, N any event
no objection was made or exception
taken. In plaintiffs assignments Q
error in his statement on motion TO
new trial and appeal the point
twice made that It was error in tn
| Court not to give plaintiff judgmer
IL accordance with this finding Coul
sci for appellant in their openin
brief take the pos ton that they wer
entitled to judgment at least to tn
extent of the sand and the exclusiI
Z license to remove the same as four
by the trial court. They close the
> brief with the following paragraph:
. Wherefore plaintiff and appella
prays that, .inasmuch as all the e,
dence is before the court the jud
ment be modified by directing the d
PENDANTS to execute a deed of sa
property to plaintiff; and should t
court find that plaintiff is not en-
tied to the relief prayed for in t
Il complaint, but is entitled to t
v lesser relief Of a deed to the sand a
"a exclusive rights to remove the san
that the judgment be modified
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