Opinion
No. 2887
September 29, 1930.
APPEAL from Second Judicial District Court, Washoe County; Frank T. Dunn, Judge.
G. Gunzendorfer, for Appellant:
The record on this appeal strictly conforms to the requirements of section 5356 Rev. Laws, in that, this being an appeal from an order, the appellant has furnished this court with a copy of the notice of appeal, the order appealed from and a copy of the papers used on the hearing in the court below, the same being certified by the clerk as having been used on the hearing and as being correct. The certification of the clerk is all that is called for by this section. The section, it is true, also requires that there be furnished "a statement, if there be one." The wording of the section implies that there need be no statement (bill of exceptions). It is conceded that if oral or certain documentary evidence were produced at the hearing it would be necessary to embody the same in a bill of exceptions. But if affidavits were used, they would be among the papers which the clerk is required to certify, and these would not have to be incorporated in a bill of exceptions. The clerk's minute of the proceedings on the hearing, however, clearly shows that only an argument was presented to and heard by the court. It does not show that any witnesses were sworn and examined or that any documentary evidence or affidavits were submitted. And this court ought not, in the face of the clerk's minute, assume that there were any of these. Especially is this true when respondents admit in their brief that the matter was submitted "solely upon the order issued at the request of plaintiff."
W.M. Kearney and Sidney W. Robinson, for Respondents:
Examination of the papers constituting the so-called record on appeal will disclose the fact that the same is composed solely of certified copies of the pleadings on file in the district court, together with a certified copy of the minute order from which the present appeal is taken. This fails to meet the requirements of sec. 414 of the civil practice act (sec. 5356 Rev. Laws, 1912), inasmuch as the so-called record on appeal does not contain anything to show what proceedings were had before the lower court upon the hearing of the order to show cause. There is nothing to show what papers were used upon the hearing; there is nothing to show what testimony or other evidence, if any, was before the lower court in support of, or against, the granting of a permanent injunction; consequently, this court on appeal is without any record from which to determine whether or not the lower court heard any testimony. This being the case, appellant's statements to the effect that no testimony, evidence or other proof was presented are without foundation in the record.
In the absence of a statement or bill of exceptions, the appellate court may only consider the judgment roll alone, and counsel is not permitted to go beyond the papers which are sent up on appeal. Werner v. Babcock, 116 P. 357; McCausland v. Lamb, 7 Nev. 238; Neil v. Daniel, 4 Nev. 436.
OPINION
This is a suit to enjoin a sale under an execution issued against a third party who has no interest of record in the real estate sought to be sold, upon the theory that such sale would cast a cloud upon the title of plaintiff, who alleges that he is the sole owner of the property.
Upon the filing and reading of the verified complaint, the court below entered an order directing the defendant to show cause why an injunction should not issue. On the day of the hearing the court entered an order, which, omitting the formal portions thereof, reads as follows: "The court being fully advised in the premises, ordered that the relief prayed for be not granted, and that the motion for a temporary restraining order be, and the same is denied." It was from this order that an appeal was taken.
Counsel for respondents contend that the judgment must be affirmed, for the reason that the so-called record on appeal is insufficient to justify this court in reversing the judgment.
The record which was filed was prepared, as stated by counsel for appellant, pursuant to section 414 of the civil practice act, section 5356, Rev. Laws.
This court has repeatedly held that the section mentioned has been repealed and is no longer of force and effect. Some of the decisions so holding are Water Co. v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079; Nevada First Nat. Bank v. Lamb, 51 Nev. 158, 271 P. 693.
In view of the fact that the section pursuant to which the so-called transcript was prepared has been repealed, such transcript cannot be considered.
Counsel for respondents insist that the so-called record is insufficient to justify the reversal of the order, even if the section mentioned were still in force. This contention is based upon the fact that it does not appear from the certificate of the clerk that the so-called record is full and complete, as contemplated by the section.
For a full understanding of the situation on the day of the hearing, the respondents filed separate demurrers to the complaint. Counsel for appellant contends that the hearing was had upon them alone, whereas counsel for respondents contend that the matter was not considered upon the demurrers, but upon proof, and, there being no bill of exceptions in the record, the order must be affirmed. While it is immaterial, we may observe that the order does not indicate a ruling upon the demurrers.
From a reading of the section in question, if it were still in force, it is clear that it must appear from the certificate of the clerk that all of the papers, affidavits, and evidence used upon the hearing before the lower court are in the record. There being no such showing in the certificate, the record is not such as would justify a reversal of the judgment. Lady Bryan Gold Silver M. Co. v. Lady Bryan M. Co., 4 Nev. 414; Thompson v. Reno Sav. Bank, 19 Nev. 293, 9 P. 883.
There being no record before the court which it can consider, the judgment must be affirmed.
It is so ordered.