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Glock v. Elges

July 1916

ALPHONS GLOCK, APPELLANT, V. FRITZ ELGES, RESPONDENT.


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

George Springmeyer, for Appellant.

Alfred Chartz, for Respondent.

By the Court, Norcross, C. J.:

From the notice of appeal it appears that this appeal is taken “from that part and portion of the special order made and entered in the above-entitled action on July 29, 1914, after final judgment, and in the words following: ‘The clerk of this court is ordered to enter judgment on the general verdict as rendered by the jury in favor of the plaintiff, and against the defendant, for the sum of $236, with interest thereon at the rate of 7 per cent per annum from the 11th day of September, A. D. 1913, but without costs. Defendant's motion to strike plaintiff's cost bill from the files is granted,' and, further, plaintiff hereby appeals * * * from that part of the judgment herein denying plaintiff his costs of the suit.”

From the complaint it appears that this was an action to recover damages for an alleged forcible or unlawful entry upon the property of the plaintiff and an alleged malicious and wanton injury thereto. Actual damages are alleged in the sum of $600. The judgment prayed that the damages be trebled, and that the plaintiff be

[39 Nev. 415, Page 419]

awarded judgment for $1,800 damages and costs of suit. The answer of defendant denied title in the plaintiff to the real property in controversy, denied the alleged forcible or unlawful entry, and alleged ownership in himself to a certain building taken and removed by defendant from the real property in question. The case came on for trial before a jury which, on the 11th day of December, 1913, returned a verdict for plaintiff for $236 actual damages, and also returned certain special verdicts.

From an opinion and order of the district judge filed in the case upon the 29th day of July, 1914, it appears that the court denied costs in favor of the plaintiff upon the ground that the judgment was for less than $300; that the special verdicts rendered by the jury were not inconsistent with the general verdict; and directed that judgment be entered in favor of plaintiff for the sum of $236 with interest from the date of the verdict, but without costs; that defendant's motion to strike plaintiff's cost bill from the files is granted; and that defendant's motion for judgment and costs be denied. A formal judgment in accordance with the said order of July 29, 1914, was entered by the clerk on the 7th day of August, 1914. Notice of appeal was given, dated August 10, 1914, with an acknowledgment of service on the 11th day of August, 1914, together with a waiver of an undertaking on appeal, which was filed August 12, 1914. The statement on appeal appears, from the record, to have been served on counsel for the defendant February 1, 1915, and to have been settled by the judge on February 21, 1915. Counsel for the respondent has moved to strike the statement because not filed nor served in time. The statute in force at the time the appeal was taken provides:

“When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall, within twenty days after the entry of such judgment or order, if he or his attorney was present at the time of the making or entry thereof, or if the appeal is from a judgment based upon a verdict, and in other cases within twenty days after receiving written

[39 Nev. 415, Page 420]

notice of the entry of the judgment or order, prepare a proposed statement, * * * and shall file the same with the clerk and serve a copy thereof upon the adverse party. * * *” (Rev. Laws, 5331.)

It is contended by counsel for the appellant that the statement was filed in time because no notice was served upon him of the order or judgment, as required by law. The certificate of the district judge attached to the record on appeal recites “that counsel for both plaintiff and defendant, by order of the court, were notified by letters sent by the county clerk of Douglas County, Nevada, mailed from Genoa, Nevada, on July 30, 1914, addressed to them at Reno, Nevada, and Carson City, Nevada, respectively, of the decision of the court, said decision having been rendered and filed on July 29, 1914, and that in such letters were included certified copies of said decision.”

1. It is unnecessary to enter upon a consideration of the question of the legal sufficiency of the notice of order or judgment. Counsel for the plaintiff, by the notice of appeal dated August 10, 1914, and filed August 12, 1914, acknowledged notice of the order and judgment. The filing of a notice of appeal was not only an acknowledgment of the notice, but a waiver of any other or additional notice, even assuming that the same might have otherwise been required.

2. The contention of counsel for respondent that the appeal is not properly taken because no statement was filed within time is without merit. An appeal is taken by filing the notice of appeal, and is perfected by the filing of an undertaking ...


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