Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-10-11
w. w. Griffin and Sweeney & More
house, for Appellant.
Carey Van Fleet and Charles r.
Levers, for Respondent.
ON MOTION TO RESTORE APP
PEAL.
OPINION

ms Court heretofore ulolnlSStt
the appeal in the above entitled cause
for noncompliance with the p%rovis-
ions of Rules 2and 3 of this Court,
subject to- a motion to rc-lnstatc as
prescribed in said Rule 3. \ motion
to restore the appeal has been made.
In Iightlc vs.. I~vancoviCh, 10 New.
~, 4}. this Court said:
AS this is the first case where an
Interpretation has been given to these
rules, we deem it proper briefly to
state that we entertain the opinion
that all applications to rcinstatc ap-
pcals must show that appellant has
used reasonable diligence in procur-
ing, or attempting to procure, the
transcript on appeal, and il he fails
to present the same i'll this Court,
within the time prescribed by ruIt ,,
facts TO constitute d legal CNcusc for
statement. that the appeal has been
taken in good laith,' it should also
show that in the opinion of appel
errors in the record which ought to
vs.. Mead. . Cal. 600; Dor1and vs..
NcGlynn, 45 Cal. 49,"
The appeal in this case is from the
Judgment alone and it is conceded
that the record certified from the
court below as the record on appeal
would present only the judgment roll
for consideration and that no error
appears upon the face OF the jud9-
mrnt roll.
Counsel Tor appellant has. however,
filed with the clerk Of this Court
what IS alleged to- be the transcript
"l the testimony in the case, tOgcth-
cr with certain exhibits, and we are
asked, virtually, either to make a new
rcSurd on appeal ourselves, or to di-
rect the our below to do so. This
request is based upon the provisions
of Sec. 142 OF the Practice Act Grew.
Laws, Sec. 5US4), authorizing the re
lief OF Il party from some proceeding
taken against him Through his mis-
take, inadvcftcncc, surprise OF cNcus-
able neglect
The record certified to this court
vas made by former counsel for ap-
pcllant. 1t appears that appellant has
been represented in the COurt below
and in this Court at various times by
different attorneys and firms of at
tOrncyS. The affidavit OF appellant
and the affidavit OF one OF her former
counsel set forth alleged facts jus1i-
lying, according to the contention OF
counsel now appearing for appellant,
some relief to appellant whereby her
case could be heard upon its merits
in this Court.
The case upon an appeal from the
Judgment alone could only be heard
and determined in this Court upon 4
statement on appeal or a bill OF cN-
ccptions. Whichever method is pur-
sued, the statement or bill must be
settled in the court below. \ state
mcnt was settled in the way pre-
scribcd by the statute, and we now
have no power t. make Il new state
m,nt or to direct the court below to
make Il new and different one.
1t appears from the aftidavits filed
that a motion for a new trial was
made in the court below. which mo
ton has never been submitted to the
court below and, hence, has never
been determined. If the plaintiff in
the action is entitled to any relief by
reason Of mistake, inadvcrtcnrc, slIr-
prise or cNcusablc neglect. we think
the only forum to apply for such re
lief is in the court below.
AS no purpose could be served by
restoring the appeal, the motion
should be, and is. denied.
NORCROSS. {. J.
We concur:
M'CARRAN, J.,
COLEMAN. ].
Filed august /, 1910.
II. r. MIGHELS. Clerk.
-------0 o------