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Arnold v. Florence-Goldfield

December 31, 1913

MARVIN ARNOLD, APPELLANT, V. THE FLORENCE GOLDFIELD MINING COMPANY AND THE JANUARY JONES LEASING AND MINING COMPANY (A CORPORATION), RESPONDENTS.


Appeal from the Seventh Judicial District Court, Esmeralda County; Theron Stevens, Judge.

James K. Redington, for Appellant.

R. G. Withers, for Respondent.

By the Court, Norcross, J.:

Judgment in this case was entered upon the 16th day of July, 1910. On August 6 following, statement upon appeal was filed and served. No amendments were filed thereto, and it is the contention of counsel for respondent that the statement was not filed in time. Notice of appeal was filed and served July 20, 1910. The record was filed in this court January 2, 1911. No briefs upon the part of appellant have ever been filed. The case was carried on the calendar of this court and passed for several terms. On the calling of the calendar at the January term of the present year the case was set down for oral argument January 30, 1913. On January 28, 1913, respondent filed motions to strike out the statement because not filed and served in time, and to dismiss the appeal for want of prosecution. On January 30, 1913, the case was called, and appellant's counsel was present in court. No excuse was then offered why the statement was not filed in time, or why the appeal was not docketed in time, or why briefs had not been filed, but counsel for appellant requested that the several motions be heard, in accordance with the practice of this court, at the same time as the hearing upon the merits, and that appellant be granted further time to file a brief. This court thereupon continued the setting of the case until March 25, 1913, and gave appellant fifteen days in which to file his brief and a corresponding time for respondent to reply thereto. No briefs having been filed within the time allowed by order of the court, on March 11, 1913, respondent filed and served a motion to affirm the judgment for want of prosecution. On March 25, 1913, the court, having the previous day been advised of the serious illness of counsel for appellant, ordered that oral argument be continued until June 25, 1913, and granted sixty days to appellant to file and serve his brief. On June 25, 1913, a further order was made, giving appellant thirty days thereafter in which to file a brief.

It must be conceded that the various orders made extending time to appellant in which to file a brief on

[36 Nev. 147, Page 149]

appeal have been made without any sufficient showing upon the record. The several orders have been made principally upon unofficial knowledge of the illness of appellant's counsel and the courtesy of counsel for the respondent.

Under the well-settled rule established by numerous decisions of this court, the judgment must be affirmed. (Potosi Zinc Company v. Mahoney, 34 Nev. 295; Linville v. Clark, 30 Nev. 113; Gardner v. Gardner, 23 Nev. 214; Matthewson v. Boyle, 20 Nev. 88; Robinson v. Longley, 18 Nev. 71; Goodhue v. Shedd, 17 Nev. 141; Finlayson v. Montgomery, 14 Nev. 397; State v. Myatt, 10 Nev. 166; Fulton v. Day, 8 Nev. 80.) Judgment affirmed.

19131231

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