Appeal from Sixth Judicial District Court, Humboldt County; E. E. Winters, Judge.
Salter & Robins, for Appellant.
T. A. Brandon, for Respondent.
By the Court, McCarran, C. J.:
This is an appeal from an order refusing to hear a motion for a new trial. Respondent contends that an appeal from such an order will not lie. Hence we are called upon primarily to determine that question.
Section 5329, Revised Laws (section 387, C. P.), provides:
An appeal may be taken: * * * (2) * * * From any special order made after final judgment, within sixty days after the order is made and entered in the minutes of the court.
Respondent contends that that is not an appeal from an order of any kind; that no order was made by the lower court; that all that the lower court did was to refuse to act. The order of the trial court was one sustaining respondent's objection on the ground that no notice thereof was given as prescribed by law.
1. The motion for a new trial was a necessary step in the proceeding in order to have the court of review pass upon the question of the sufficiency of the evidence to sustain the judgment. Respondent objected to the hearing of appellant's motion for a new trial. The court, pursuant to the objection of respondent, entered an order refusing to hear appellant's motion. This was a special order made after final judgment (Central Telephone Co. v. Holmes, 30 Nev. 440, 97 Pac. 390); hence under the statute it was one from which an appeal to this court will lie.
2. Did the trial court err in its order refusing to hear the appellant's motion for a new trial? The notice of motion filed and served by appellant was in part as follows:
You and each of you will please take notice that the plaintiff in the above-entitled action intends to and will move the above court to set aside and vacate the judgment, decision, and finding hereinbefore made in said
cause, and to grant a new trial herein, and on the ground of the insufficiency of the evidence to justify the decision, judgment, and findings of fact and conclusions of law made, entered, and filed herein.
An amendment to this notice was later filed. Respondent, through his attorneys, objected to the hearing, argument, and submission of plaintiff's motion for a new trial, the principal ground of objection being that inasmuch as the notice of motion for new trial failed to set forth that the motion would be based upon the minutes of the court, it was therefore defective and could not be considered by the court. We shall deal entirely ...