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Douglass v. Thompson

October 1912

W. J. DOUGLASS (AS TRUSTEE), APPELLANT, V. THOMPSON, MOREHOUSE & THOMPSON, RESPONDENTS.


Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers, Judge.

McIntosh & Cooke, for Appellant.

Thompson, Morehouse & Thompson, for Respondents.

By the Court, Norcross, J.:

This is an action by the plaintiff, appellant herein, to recover a judgment for rents alleged to be due and owing to plaintiff from the defendants Thompson, Morehouse & Thompson on account of the use and occupancy of

[35 Nev. 196, Page 201]

certain office rooms in a certain building in the town of Goldfield known as “the Nye and Ormsby County Bank Building,” and to quiet plaintiff's right or title to said rents as against the other defendants, Lockhart and Gilbert. From a judgment entered upon a non-suit in favor of these defendants, Thompson, Morehouse & Thompson, as against the plaintiff, the latter has appealed.

Counsel for respondent have moved to dismiss the appeal upon the ground that this court is without jurisdiction thereof for the reason that all of the adverse parties to the suit were not made parties to the appeal, and for the further reason that there is no valid notice or undertaking. The notice of appeal was directed only to the defendants Thompson, Morehouse & Thompson, but the notice was served upon the counsel of record for the other defendants in the action. The interests of defendant Gilbert upon the appeal can hardly be considered as adverse to those of the plaintiff, and, as to him, service of the notice may not have been necessary. It appears that, after the judgment and before the taking of the appeal, a change had been made in the receivership of the Nye and Ormsby County Bank, but no substitution had been made in the case. Service of the notice of the appeal was made upon counsel, both for the receiver as named in the proceedings and his successor.

[1] There is no prescribed statutory form for a notice of appeal. While a better practice doubtless would be to direct the same to all of the parties in the action who might under any possible circumstances be deemed to have any adverse interests upon the appeal, nevertheless all that the statute requires is that the notice be served upon the adverse parties. The objection as to the form of the notice and sufficiency of the service is not well taken.

[2] A notice of appeal dated November 21, 1911, was filed November 22, 1911, and service thereof acknowledged upon the following day. No undertaking upon appeal was filed within five days thereafter. On November 29, 1911, a second notice of appeal was filed and

[35 Nev. 196, Page 202]

served, and within five days thereafter an undertaking upon appeal was filed. The second notice of appeal and the undertaking were filed within the time prescribed by law for taking appeals from final judgments. It is the contention of counsel for respondent that the plaintiff has lost his right to appeal by failing to file an undertaking within five days after filing the first notice of appeal; that no other valid notice could be therefor filed. If this contention is correct, this court would of course be without jurisdiction, and the appeal should be dismissed.

It is provided by statute that an appeal is taken by the filing and service of a notice of appeal, but that an appeal shall not be effectual for any purpose unless an undertaking thereon is filed within five days thereafter. Failing to file the undertaking within the prescribed time renders the notice of appeal ineffectual, but we see no reason why a new notice may not thereafter be filed, providing time for appeal has not expired. (Columbet v. Pacheco, 46 Cal. 650, 651; Vordermark v. Wilkinson, 147 Ind. 59, 46 N. E. 336; Bornheimer v. Baldwin, 42 Cal. 27; Holladay v. Elliot, 7 Or. 483; 2 Cyc. 529, 530.) The complaint, among other matters, alleges: “That on said February 5, 1909, said Nye and Ormsby County Bank duly made, executed, and delivered to plaintiff a deed of conveyance absolute of said premises. * * * That thereafter, on or about February 6, 1909, said plaintiff executed and delivered to said Nye and Ormsby County Bank, and to said defendant, R. F. Gilbert, a certain instrument in writing, declaratory of the conditions under which the title of said lot and building was held by plaintiff. * * *” The instrument last referred to is attached to the complaint as an exhibit, and reads as follows “Whereas, W. J. Douglass, as the manager and secretary of the Midway Mining Company, has deposited with the Nye and Ormsby County Bank, a corporation, certain moneys belonging to and the property of said Midway Mining Company, for the safe-keeping of which moneys said W. J. Douglass is primarily liable,

[35 Nev. 196, Page 203]

and, whereas, R. F. Gilbert, county treasurer of Nye County, Nevada, as such treasurer has deposited with the said Nye and Ormsby County Bank, a corporation, certain moneys belonging to the county of Nye, which moneys came into possession of said Gilbert as county treasurer, and for the safe-keeping of which moneys said Gilbert and his bondsmen on his official bond are primarily liable, and, whereas, said Nye and Ormsby County Bank has, by a deed absolute in form, conveyed to said W. J. Douglass certain property in Goldfield, Esmeralda County, Nevada, known as the First National Bank building, together with the real estate on which the same is situated, the purposes for which said property was so conveyed to W. J. Douglass being that he hold the same as security for the repayment to him and to said R. F. Gilbert, as county treasurer, of all moneys deposited by them with said Nye and Ormsby County Bank, and for the complete protection of said W. J. Douglass and R. F. Gilbert, as county treasurer, and his bondsmen. Now, therefore, said W. J. Douglass agrees to hold said property so conveyed to him for the uses and purposes above set forth, and further agrees to reconvey said property to said Nye and Ormsby County Bank when said uses and purposes have been performed and accomplished. [signed] W. J. Douglass.” The complaint further alleges: “That on or about said February 5, 1909, and as a part of the agreement so aforesaid entered into for the conveying of said premises to plaintiff, it was also agreed by and between said Nye and Ormsby County Bank, the defendant R. F. Gilbert, and plaintiff herein, that the actual and exclusive possession and right of ...


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