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Bank of Italy v. Burns

December 31, 1915

BANK OF ITALY (A CORPORATION), APPELLANT, V. C. P. BURNS AND A. A. BURKE, AS SHERIFF OF WASHOE COUNTY, STATE OF NEVADA, RESPONDENTS.


Appeal from Second Judicial District Court, Washoe County; A. N. Salisbury, Judge.

Mack & Green, for Appellant.

Dodge & Barry, for Respondents.

By the Court, Coleman, J.:

Appellant, who was plaintiff in the trial court, brought suit in the district court of Washoe County to recover possession of an automobile truck. Upon the trial before the court without a jury judgment was rendered in favor of the defendants. A motion for a new trial was regularly made, and denied by the court. Appellant gave notice of appeal to this court. The time in which to file a statement on appeal in the lower court expired on September 22, 1914, and the statement was filed on September 23. A motion was made by the respondents to strike the statement from the files because it had not been filed in time, which motion was granted by the court. Thereafter appellant made application to the trial court, under section 5084, Revised Laws, to open up the matter and to be permitted to refile its statement, on the grounds of excusable neglect and inadvertence. In support of the application affidavits were filed by C. E. Mack and F. D. King, neither of which was controverted. From the affidavit of Judge Mack it appears that he was the only attorney for plaintiff who was sufficiently familiar with the facts of the case to prepare a statement on appeal,

[38 Nev. 398, Page 400]

and that on account of sickness he was unable to prepare the statement in time to file it on September 22, 1914; that on that day he applied to Mr. Dodge, of the firm of Dodge & Barry, who were attorneys for the respondents, for a stipulation extending the time in which to file the statement, but that he was informed that Mr. Barry was away from home, and that he (Dodge) would not sign a stipulation extending said time, but that, if plaintiff needed a day or two extra time, it might have the same, and that respondents would not take advantage of the default.

The affidavit also shows that on the same day, about 3 p. m., Judge Mack went to the courthouse to get an order from Judge Moran, before whom the case was tried extending the time, but, failing to find him at the courthouse, he went down the street, and came upon him in conversation with F. D. King, Esq., when he told Judge Moran, in the presence of Mr. King, that he had been sick, and that his work had fallen behind, and that he was the only attorney who knew enough about the case to prepare the statement, and that that was the last day upon which the statement could be filed, and asked him to go to the courthouse with him and make an order extending the time five days for the filing of the same.

The affidavit also recites that Judge Moran stated that plaintiff might have additional time, but that it was not necessary for them to go to the courthouse at that time, and that he (Judge Moran) would later in the day attend to the matter, and that affiant understood the said Moran to mean that he would later in the day make and enter an order in said cause extending for five days the time within which appellant might file and serve a statement on appeal.

The affidavit of King was substantially the same as the one made by Mack, except that he said that Mr. Mack stated to Judge Moran that the time within which to file the statement would expire on the following day (September 23), and that Judge Moran said he would fix it “in the morning.”

[38 Nev. 398, Page 401]

Judge Moran did not make an affidavit, but it appears that on the 29th day of September the appellant filed an order under date of September 22, 1914, signed by Judge Moran, which purported to give appellant five days' additional time. We think this a circumstance corroborating Judge Mack's statement, for it is evident Judge Moran would not have dated the order as of the 22d if he had not understood that that was the day he was to have made it. It also appears from the affidavit of Judge Mack that at the time the statement on appeal was filed on September 23 he believed that Judge Moran had made the order on September 22, extending the time for filing and serving the statement.

No counter affidavits were filed by respondents, and the only objection which they made to the granting of the order sought was that there was no showing of merits on the part of appellant. Judge Salisbury, who heard the matter on the application to set aside the default and grant further time to appellant in which to file its statement on appeal, was of the opinion that respondents' objection was not well taken, but denied the application on the ground that there was no showing that the appeal which appellant desired to take was to be taken in good faith and not merely for delay.

In this court respondents renew the objection made in the court below that there was no showing of merits, and hence no prejudice was done appellant by the order of the trial court.

This court held in Sherman v. Southern Pacific Co., 31 Nev. 285, 102 Pac. 257, that a default for failure to file and serve a statement on appeal in time might be set aside upon a showing; and, since respondents do not contend that a sufficient showing was not made in the court below of excusable neglect and inadvertence, but simply that there was no showing of merits, we will proceed upon the theory that the showing of excusable neglect and inadvertence was sufficient, and consider ...


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