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Rosenthal v. Rosenthal

October 1915

ADA RITA ROSENTHAL, RESPONDENT, V. HUBERT SEMMY ROSENTHAL, APPELLANT.


Appeal from First Judicial District Court, Ormsby County; Frank P. Langan, Judge.

John M. Chartz, for Appellant.

Platt & Sanford, for Respondent.

By the Court, McCarran, J.:

The notice of appeal filed in this case states that it is an appeal from the final judgment and from an order refusing a continuance. Respondent has moved to dismiss the appeal, upon the ground that there is no record before this court, as required by the statutes of Nevada and the rules of the court.

It appears from the record that, prior to the trial of the cause, defendant in the court below, appellant herein, moved the court for a continuance for the purpose of procuring the depositions of witnesses. The motion for continuance being denied by the court, the cause proceeded to trial and final judgment, in which a decree of divorce was issued. In this case appellant appears here without bill of exceptions or statement on appeal.

1. An order of the trial court in allowing or dismissing the motion for continuance is not of itself an appealable order, and can be reviewed only on appeal from the final judgment. (Rev. Laws, 5329; Whitefoot v. Leffingwell, 90 Wis. 182, 63 N. W. 82; Jaffray v. Thompson, 65 Iowa, 323,

[39 Nev. 74, Page 77]

21 N. W. 659; Shearouse v. Smith, 83 Ga. 520, 11 S. E. 560; State v. Ducker, 35 Nev. 214, 127 Pac. 990; Haraszthy v. Horton, 46 Cal. 545.)

2. In the case of State v. Wallin, 6 Nev. 280, this court held that where there was no bill of exceptions, and no statement on appeal, and the affidavits in support of the motion for continuance were not properly in the transcript, the alleged error of the trial court in refusing a continuance could not be considered by this court. In the case of State v. Preston, 30 Nev. 307, 95 Pac. 920, this court said:

“The supreme court of this state, to be clothed with jurisdiction to adjudicate whatever questions are properly raised by an appeal from an inferior court, must be connected with the proceedings had in the lower court substantially in the manner required by the statutes regulating appeals; otherwise, this court acquires no jurisdiction. If any of these essential links required by mandatory statutes and necessary to give this court jurisdiction are lacking, the attempted appeal confers no jurisdiction on this court, and the proceedings must be dismissed.”

It has been repeatedly held by this court that, in the absence of a statement on appeal or bill of exceptions, this court is confined to a consideration of the judgment roll alone. (Werner v. Babcock, 34 Nev. 42, 116 Pac. 357, and cases there referred to.)

3. We are referred by appellant to certain sections of the civil practice act, to wit, sections 5339 and 5356, Rev. Laws:

“Sec. 5339. The provisions of the last preceding section shall not apply to appeals taken from an order made upon affidavit filed, but a certified copy of such affidavit and counter affidavit, if any, shall be annexed to the order, in the place of the statement on appeal mentioned in that section.”

“Sec. 5356. * * * On an appeal from an order, the appellant shall furnish the court with a copy of the notice of appeal, the ...


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