Appeal from Third Judicial District Court, Eureka County; Thomas F. Moran, Judge.
Mack & Green, for Appellant.
J. W. Dorsey, for Respondents.
By the Court, Coleman, J.:
This is an appeal from a judgment dismissing a suit for want of prosecution. The complaint was filed April 9, 1904. The defendants appeared, and filed demurrers to the complaint on May 20, 1904. Nothing more was done in the case until June, 1913, when plaintiff obtained an injunction. The suit was instituted in the district court of Eureka County. On October 9, 1913, the Honorable Peter Breen, the district judge of that county, entered an order that the Honorable Thos. F. Moran, judge of the Second judicial district, hear and decide all matters and things connected with or involved in the case.
Section 5356, Rev. Laws, relative to transcripts on appeal from the district court to the supreme court, provides, inter alia, that:
If any written opinion be placed on file * * * in the court below [district court], a copy shall be furnished, certified in like manner.
Judge Moran filed a written opinion in the case on March 6, 1914, ordering the suit dismissed.
Appellant contends that no motion to dismiss the action was either made or argued before Judge Moran, and that the action of the court in dismissing the case is absolutely null and void. There is no written motion or notice of motion to dismiss in the record, or anything to indicate that there was such a motion made, except as appears in the written opinion of Judge Moran, filed
March 6, 1914, which is part of the transcript on appeal. In his opinion Judge Moran says:
There was no order made transferring this case to Washoe County, and by stipulation of the parties demurrer and motion to dismiss for laches were argued by the respective parties at the courthouse in Reno.
As to the motion to dismiss, a more serious question is involved. * * *
For the reasons stated, the motion to dismiss on the ground of laches or failure to prosecute the suit is granted, and the action is hereby dismissed.
By section 4922, Rev. Laws, it is provided:
* * * The decision in an action or proceeding may be written or signed at any place in the state, by the judge who acted on the trial and may be forwarded to, and filed by the clerk, who shall thereupon ...