Opinion
No. 3014
March 10, 1934.
Appeal from Second Judicial District Court, Washoe County; L.O. Hawkins, J.
W.M. Kearney and John Davidson, for Appellant: E.C. Short and Green Lunsford, for Respondent James G. Paterson.
OPINION
A petition for a rehearing has been filed, in which it is urged that the plaintiff not having pleaded an abandonment of the express contract found by the trial court to have been entered into between the plaintiff and the defendant, the findings, judgment, and decree were ill-advised, and without justification.
1. This point was not made in the trial court and cannot be urged in this court for the first time. Sherman v. Dilley, 3 Nev. 21 27; McLeod v. Lee, 17 Nev. 103-120, 28 P. 124.
2. For another, and perhaps a better reason, the petition for a rehearing should be denied, and that is, that from a careful consideration of the entire record we are of the opinion that substantial justice was done by the trial court in this matter. It is provided by section 8622, N.C.L., as follows: "The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect."
This court, in Sweeney v. Schultes, 19 Nev. 53-58, 6 P. 44, 47, 8 P. 768, said: "The general tendency of the decisions is to look with disfavor upon mere technical objections, which relate solely to the form of the process or proceedings, especially where it is apparent that the error is one which has caused no substantial injury to the complaining party. In pursuance with this general principle, it was enacted in our statute that `the court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or default.' 1 Comp. Laws, 1134. What was the object of the legislature in incorporating this provision in the Code? There can be no difference of opinion upon this question. The principal object was, as stated by the court in Dyas v. Keaton, supra, — `To avoid the technicalities of the common-law procedure, by which it was claimed that justice was often defeated. This was certainly a most laudable as well as desirable object. The practical spirit of the age, which will not brook trifling in business affairs, and whose principal aim is utility, demands that courts should endeavor to secure the attainment of this avowed design in the adoption of the Code. It is the general rule, now prevailing in the courts, that wherever and whenever substantial justice is secured, a mere technical error, which is harmless in its character, and which has worked no injury, will not be permitted to defeat or annul the final conclusion or consummation of judicial proceedings.'"
The petition for a rehearing is denied.