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Whise v. Whise

April 1913

MELCHOIR WHISE, APPELLANT, V. ESTHER WHISE, RESPONDENT.


Appeal from the Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Huskey & Springer, for Appellant.

Mack, Green, Brown & Heer, for Respondent.

By the Court, McCarran, J.:

In this case Melchoir Whise instituted an action for divorce against Esther Whise in the district court of the Second judicial district. The case was tried by the court on the 8th day of June, 1911, judgment was rendered in favor of the plaintiff, appellant herein, and on June 20, 1911, a decree of divorce was granted to the plaintiff on the ground of extreme cruelty.

By order of the court, as appears from the statement on appeal, the time in which for defendant to file her notice of intention to move for a new trial was extended, and on August 5, 1911, within the time allowed by the court, the defendant, through her attorneys, filed her first and original notice of intention to move for a new trial.

The notice, as filed August 5, is set out in full in the statement on appeal, and is based upon three separate grounds, to wit: First, insufficiency of the evidence to justify the decision of the court; * * * second, that said decision is against the law; and, third, errors of law occurring at the trial and excepted to by the defendant.

The matter seems to have rested in abeyance until the 13th day of December, 1911, on which date, and after the expiration of the time allowed by the court for filing the notice of intention, defendant filed notice of motion for an order permitting her to amend the former notice by adding a new ground thereto, to wit: “Fourth, newly discovered evidence material for the defendant, which she could not with reasonable diligence have discovered and produced at the trial.”

[36 Nev. 16, Page 20]

The hearing of the motion for permission to amend was had and determined on the 1st day of April, 1912. At the conclusion of the hearing the court made the order granting defendant permission to amend her original notice of intention by adding the fourth ground, i.e., newly discovered evidence. The plaintiff, having resisted the motion to amend in the court below, and having entered his exception, comes here on appeal from the order granting defendant the right to amend.

The time in which defendant, respondent herein, should have filed her notice of intention to move for a new trial had unquestionably expired, but having previously filed her original notice of intention within the time allowed, the question is: Was it abuse of discretion, in view of the showing made, to permit her to file, as an amendment, a fourth ground, namely, newly discovered evidence.

1. Section 3163 of the code, in the light of which this case must be considered (Cutting's Compiled Laws), sets forth: “The court may, in furtherance of justice, * * * upon such terms as may be just, and upon payment of costs, relieve a party or his legal representatives from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.” This is in the nature of a remedial statute; its object was to relieve litigants who through some inadvertence, such as is common to mankind, might be deprived of a hearing upon the merits through their unintentional failure to bring themselves within a rule. Statutes such as this were intended to relieve the harshness of rigid form by applying the flexibility of discretion. The various text-writers and many of the recent decisions dwelling on the subject of remedial statutes have expressed themselves as favoring very liberal construction on the application of such statutes. (Lewis' Sutherland, Statutory Construction, sec. 717; Black's Interpretation of Law, p. 311.)

This court, in the case of Sherman v. Southern Pacific, 31 Nev. 290, speaking through Mr. Justice Sweeney, said: “It seems clear to us that the legislature of Nevada, in passing this remedial statute, had in mind the necessity

[36 Nev. 16, Page 21]

of having a provision wherein, in proper cases, upon a proper showing of excusable neglect, surprise, mistake, or inadvertence, in the interests of justice, and that a full determination of litigants' rights should be received, trial courts should, in proper cases, be permitted to grant relief by giving a ...


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