Appeal from the Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Summerfield & Richards, for Appellant.
Mack, Green & Heer, for Respondents.
By the Court, McCarran, J.:
This is an action brought by N.B. Torp and others, claiming to be legatees under the last will and testament of J. B. Overton, against J. H. Clemons, named as executor of said will and residuary legatee of the estate of the said Overton, deceased.
The action was brought in the district court to set aside the decree of settlement of the first and final accounting of the executor, and to set aside the order of final distribution of the estate of J. B. Overton, as theretofore made and entered, and to compel J. H. Clemons, as executor of the will of J. B. Overton, deceased, to account for 160 shares of the preferred stock of the Oakland Traction Company and the avails thereof.
The court below, at the conclusion of the trial, found, among other things, that on or about the 13th day of December, 1907, J. B. Overton was the owner of and in possession of and transferred and delivered to the defendant Clemons 160 shares of the capital stock of the Oakland Traction Company, a corporation organized and existing under and by virtue of the laws of the State of California, and of the par value of $16,000; that said transfer was made to the said defendant in trust for the said J. B. Overton; that the defendant paid no consideration therefor, but then and there promised and agreed with the said J. B. Overton to hold said stock certificates, representing the same to the use and benefit of the said J. B. Overton, and to turn the same over to the said J. B. Overton upon demand. The court further found that demand was made by the said J. B. Overton to the defendant for the return of said stock, and that the defendant failed and refused to return the said stock
to the said Overton. The court further found that the said stock was wrongfully converted by the defendant Clemons to his own use on or about the 10th day of June, 1909, and that the market value thereof at said time was $90 per share, and that the total value of said stock, as converted, was at the time of the conversion, $14,400. Judgment was accordingly entered in favor of plaintiffs that the decree of settlement of the first and final accounting of the executor, and the order of final distribution of the estate of J. B. Overton, be vacated, annulled, and set aside. From the judgment and order refusing a new trial, appeal is taken.
It is the contention of respondent in this case that none of the grounds assigned as error can be considered by this court, for the reason that the statement upon appeal in this case does not contain assignments of error covering the same or any assignments of error whatsoever. It is our judgment, however, in this respect that a sufficient compliance with the statute appears, and the errors assigned and excepted to were duly presented and brought to the attention of the trial court on the motion for a new trial and are bought here in connection with and attached to the transcript on appeal.
 Respondents contend that the trial court had no jurisdictional authority to hear the motion for a new trial, for the reason that the notice of intention to move for a new trial was not served or filed within ten days after defendant had received notice of the decision of the court, as provided by section 5323 of the Revised Laws. It is disclosed by the record that stipulation was entered into by counsel for appellant and respondent as follow:
It is hereby stipulated and agreed by and between the above-named plaintiffs and defendant named above that defendant may have until and including the 22d day of August, 1913, in which to serve and file his notice of intention to move for a new trial in the above-entitled action.
It is the contention of the respondents herein that, notwithstanding this stipulation, the court had no jurisdiction to hear the motion for a new trial. Under the old practice act (Comp. Laws 1873, sec. 1258; Cutting's
Compilation, sec. 3292), it was provided that the several periods of time limited may be enlarge by the written agreement of the parties, or upon good cause shown by the court or judge before whom the cause was tried. This special provision appears to have been eliminated in the new code of civil procedure.
It is our judgment that, notwithstanding the change in procedure, as appears in the Revised Laws, the stipulation, as entered into in this case, was a waiver of objection on the part of the respondent.
 The evidence in support of a trust relation is, in our judgment, exceedingly conflicting, consisting, as it does, in most part of testimony of the relatives of beneficiaries under the will of Overton, whose testimony is principally as to the statements and declarations made by the deceased, Overton, relative to stock held by the appellant, Clemons. The testimony, as it is presented in the record, falls far short of binding conviction to our mind as to the existence of a trust between Clemons and Overton, but as there is a substantial conflict in the testimony, and there is some substantial evidence in support of the finding of a trust, the conclusion of the trial court in this respect, in view of the long-established rule of this court, will not be disturbed.
This case, however, presents another phase; i. e., the amount of stock transferred from Overton to Clemons which became subject to the trust. The testimony of Mrs. W. H. French, as well as that of Mrs. Clara M. Willis, is to the effect that in their hearing and presence, on several different occasions, the deceased, Overton, made demand of appellant, Clemons, for the stock of the Oakland Traction Company, held by him, and in that connection a certain written demand was identified by the witness, Mrs. French, and introduced in evidence, the contents of which is as follows:
Everett, Washington, June 10, 1909.
Mr. J. H. Clemons, 404 So. Virginia St., Reno, NevadaDear Sir: I hereby make formal demand on you for return of 160 shares (160) of preferred stock of the Oakland Traction Company (or whatever its legal name may
be) of Oakland, California, the said stock having been placed in your hands in trust for me and subject to my demand at any time. I have asked you several times to send this stock to me and now make formal written demand that you deliver all of said stock properly indorsed to H. R. Willis, of Everett, Washington, for such disposition as I may direct. J. B. Overton.
Two days prior to the date of this instrument, the deceased, Overton, wrote a letter in his own hand to the ...