Appeal from Seventh Judicial District Court, Esmeralda County; J. Emmett Walsh, Judge.
John F. Kunz, for Appellant.
Hoyt, Gibbons, French & Springmeyer and Benj. J. Henley, for Respondent.
By the Court, Sanders, J.:
The plaintiff brought this action to recover from the defendant corporation the sum of $10,000 as damages
for the wrongful death by drowning of his child, 9 years of age, in a reservoir erected and maintained by the defendant upon its premises for the purposes of fire protection to the defendant's milling plant or reduction works situated near by. The plaintiff sought to recover the sum stated, upon the theory that the reservoir was in law and in fact an attractive nuisance, and that at the time of the drowning of the child the reservoir was not safeguarded as required by the statute entitled An act to secure persons and animals from danger arising from mining and other excavations. Rev. Laws, 3233. At the trial the jury returned a verdict in favor of the defendant, and judgment was entered accordingly. This appeal is taken from the judgment alone.
Upon calling the case for argument in this court, the respondent, upon notice previously given, moved the court to dismiss the appeal, upon the ground that no motion for a new trial was ever made in the lower court before the appeal was taken, and that no memorandum of errors was filed and served as contemplated by section 5322, Revised Laws.
1-5. Section 386 of our civil practice act (Rev. Laws, 5328) upon which the motion is based, provides:
Where the appeal is based upon the ground that the evidence is insufficient to justify the verdict or decision of the court, or to support the findings, or upon alleged errors in ruling upon the evidence, or upon instructions claimed to be erroneous, a motion for a new trial must be made and determined before the appeal is taken. In all other cases the party aggrieved may appeal with or without first moving for a new trial; but by appealing without first moving for a new trial, the right to move for a new trial is waived.
It is admitted that no motion for a new trial was made in the court as contemplated by this section, and it is conceded that the appeal in this case is based upon alleged errors in ruling upon the evidence, the giving of
instructions claimed to be erroneous, and the refusal to give instructions claimed to be correct. The question raised by the motion to dismiss, therefore, is: Is it essential to the jurisdiction of this court on an appeal from a judgment that it should affirmatively appear from the record that a motion for a new trial was made and determined before the appeal was taken? Manifestly the legislature by the adoption of section 386 clearly evinced an intention that an appeal which is based upon certain errors raising questions dependent upon the evidence for determination should not be considered in the appellate court unless the court below had been afforded an opportunity to correct such errors by motion for a new trial. The section as adopted had no place in the old procedure. What is made by it a statutory rule was once characterized by this court as being entirely unnecessary. Cooper v. Pac. Mutual Life Ins. Co., 7 Nev. 116, 8 Am. Rep. 705. In that case the court said:
It is the everyday practice under the new system, as well as the old, to take cases to the appellate courts upon bill of exceptions, upon which all rulings raising legal questions may be reviewed. Will it be argued, for example, that a question growing out of the instructions or charge to the jury cannot be reviewed, except when a motion for a new trial is made? Certainly not. * * *
It may be presumed that the legislature adopted section 386 with full knowledge of the state of the practice then existing. By a subsequent contemporaneous section of the practice act (section 401; Rev. Laws, 5343) it is provided, inter alia, that at the time a decision, order, or ruling is made, and during the progress of the cause, before or after judgment, a party may take his bill of exceptions to the decision, order, admission, or exclusion of testimony or evidence, or other ruling of the court or judge on points of law, and any party aggrieved may appeal from the judgment without further statement or motion. By section 386, where the appeal is
based upon the same errors as those embraced in section 401, the party aggrieved must first move for a new trial before taking his appeal. By section 401 the same errors may be reviewed on appeal from the judgment without such motion. We are not here called upon to reconcile the obvious inconsistency of these provisions, except as incident to the solution of the main question presented in opposition to the motion to dismiss the appeal, namely, that ...