The Record-courier. [volume] (Gardnerville, Nev.) 1904-current, 1922-03-31
REHEARINC OF
CASE Is DENIED
Supreme Court Rnles that
Mandatory Law Not
FolIO7Oed

n pctitiou LOT TentdTinB OI the case
of Mrs. Dora Dean Hickey and daugh.
ters against the Douglas Milling ant
Power Company was denied by tbs
state supreme court Tuesday states
the Carson Appeal.
In a Douglas county district couri
judgment. Mrs. Hickey and children
were awarded $4,000 damages for the
death of their husband and father
Charles Hickey, who was killed by
coming In contact with a "live" wire
Of the company. This judgment was
upheld by the state supreme court.
In the opinion Tuesday the court
has the following to say:
APPELLANT has filed a petition for
rehearing. In the petition It has
seen fit to lay stress on the conten-
tion that the decision of this court
dismissing the appeal and affirming
the Judgment, is based upon a techni-
cality. No assertion could be more
contrary to the fact. Appellants
loss of hearing on the merits was
not due to the application of any
technical rule of procedure, but to
the failure of its counsel to comply
with plain. mandatory provision of
the law whereby the errors claimed
to have been committed by the court
below could be reviewed by this
court.
By force Of statute a bill of ex-
ceptions is the only means whereby
error not appearing on the face of
the judgment roll can be reviewed
by the appellate court. A bill of
exceptions becomes such only when 1t
is settled and allowed by the Judge,
or court, or by stipulation of the
parties. Under the old practice, as
we pointed out In the original opin-
ion, the statutory rule for authenti-
eating statement on appeal was the
same. None of the papers appearing
in the transcript on appeal in this
case, and claimed to be bills of ex-
ceptions, was settled or allowed by
the trial judge, or court, or by any
stipulation of the parties. This ap-
pears from the record itself, and from
the admission of counsel, who claim
that no such settlement and allow
ance Is necessary. The claim is
groundless, and to allow 1t would be
subyersive of our legal system of
bringing errors to this court on ap-
peal.
BY an act of the legislature approx
Qd Mar
ions may be prepared as to any de-
cision, ruling or order made during
three different stages of an action or
special proceeding Section one, as
amended by the legislature of 1919,
provides for bin of exceptions as
to errors alleged to have been made
after the filing of the complaint and
before trial. Section two provides
for bill of exceptions as to errors
alleged to have been made from time
the action or special proceeding is
called for trial, to and including the
entering Of final judgment. In each
case the statute requires that the bill
OF exceptions shall be settled and al
lowed by the judge, or court, or by
stipulation of the parties. The act
of 1915 permits any party at his
option to submit the transcription of
the proceedings to the court for al
lowance and settlement as a bill of
exceptions.
Our constitution merely confers
appellate jurisdiction upon the su-
preme court. 1t does not prescribe
the mode by which an appeal to it
may be taken. The legislature, there
fore, has full power to prescribe such
regulations as to the time and man.
ner of taking an appeal as may not
unreasonably restrict the right. 1t
cannot be said that a legislative en-
actment requiring bill of except
ions to be settled and allowed by the
court in which the action was tried,
or the judge, or by agreement of the
parties, is an unreasonable restrict
ion OF the right of appeal. On the
other hand, 1t must be conceded to be
wise and salutary requirement,
fully calculated to acquaint the ap-
pellate court with the true status OF
the controverted questions as they
arose in the court below.
"The petition for rehearing is de-
MED"