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Beco v. Tonopah Extension Mining Co.

April 1914

P. BECO, AS ADMINISTRATOR OF THE ESTATE OF P. DERICH, DECEASED, RESPONDENT, V. TONOPAH EXTENSION MINING COMPANY (A CORPORATION), APPELLANT.


Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.

Key Pittman and F. K. Pittman, for Appellant.

H. R. Cooke, for Respondent.

By the Court, McCarran, J.:

In this case the respondent moved in the trial court to strike the memorandum of exceptions upon the ground that the same was not filed or served upon respondent within ten days after the date of service of defendant's notice of motion for a new trial, and upon the further ground that the memorandum of exceptions and errors was not filed or served upon respondent within the additional thirty days allowed by the court in which for appellant to file and serve the exceptions and errors.

It appears from the record that on February 3, 1913, the attorney for appellant moved the trial court for thirty days additional to the time allowed by law in

[37 Nev. 199, Page 200]

which to file and serve his memorandum of exceptions. At the hearing of this motion, attorney for respondent was present in court and resisted the motion. The court, however, made an order granting additional time. From the record it appears that on February 24 an order was made by the trial court on the ex parte application of the attorney for appellant, by which order thirty days additional to the time already granted was allowed in which to file memorandum of exceptions. On March 31, pursuant to ex parte application of the attorney for appellant, an additional thirty days was granted, and again on April 30, pursuant to an ex parte application of the attorney for appellant, the court ordered that the appellant have twenty days additional, in addition to the time already allowed, in which to file and serve memorandum of errors. Again, on May 19, 1913, pursuant to the ex parte application of attorney for appellant, the court made an order that the appellant have until and including the 22d day of May, 1913, in which to file and serve memorandum of errors and exceptions. As already stated, all of the applications for additional time were made ex parte, and the court granted the additional time on the several applications, in the absence of the attorney for respondent, or any representative of respondent.

It is admitted by the attorney for the appellant that no notice was given to respondent's attorney, or to any representative of the respondent, as to the several orders made by the trial judge in extending the time in which to file and serve memorandum of exceptions, and the only time at which the respondent was represented by his attorney in the making of such orders was on the first occasion, namely, on February 3, 1913, at which time the record discloses that the attorney for respondent opposed the order extending the time.

The appellant in this case, in moving for a new trial, relied upon the seventh subdivision under section 378 of the civil practice act, being section 5320 of the Revised Laws, which is as follows:

[37 Nev. 199, Page 201]

“7. Error in law occurring at the trial and excepted to by the party making the application.”

Section 380 of the civil practice act, being section 5322 of the Revised Laws, is as follows:

“Where the motion is made upon the seventh cause mentioned in the preceding section, the party moving shall, within ten days after the service of notice of motion for a new trial, unless further time be obtained by stipulation or order of the court, serve upon the adverse party a memorandum of such errors excepted to as he intends to rely on upon the motion, and such memorandum shall contain a verified statement of his attorney that in the judgment of such attorney the exceptions so relied upon are well taken in the law. No other errors under subdivision 7 shall be considered either upon the motion for a new trial or upon appeal than those mentioned in such memorandum.”

Respondent's motion to strike in this case is based upon rule 36 of the rules of the district court of the State of Nevada, which is as follows: “No order, made on ex parte application and in the absence of the opposing party, providing he has appeared, granting or extending the time to file any paper or do any act, shall be valid for any purpose, in case of objection, unless written notice thereof is promptly given to such opposing party. Such notice shall be given as other notices are given, or may be given by registered mail sent to the last known address of the attorney for such party, or, if he has no attorney, ...


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