« ForrigeFortsett »
a misjoinder of parties plaintiff, and that demurrers, and other papers. There was no they had no joint or common interest in the certificate by the judge that the statement subject-matter or in the damages or relief had been allowed and was correct, such as is sought to be recovered, that several causes usually attached to statements on appeal. of action had been improperly joined, and In the absence of any waiver of objections, teat the alleged causes of action of the sev the affidavit made by the appellant setting eral plaintiffs were independent, was sus out the proceedings of the court would be intained by the court. An amended complaint sufficient, as stated in Hart v. Spencer, 29 was filed, naming Smith alone as plaintiff, Nev. - 89 Pac. 289. As has been held by alleging that he was the owner of the same this court, the methods of taking appeals are lots and water as claimed by him in the first matters of purely statutory regulation. Burcomplaint, and that he was entitled to have bank v. Rivers, 20 Nev. 81, 16 Pac. 430. By it flow through the S. O. Wells ditch to his analogy' only bills of exception properly setpremises, and alleging, as before, that it had tled and signed by the judge and records combeen filled up and the water diverted by the plying with the statute will be considered. defendant, and special damages to him for State y. Mills, 12 Nev. 403; State v. Rover, the same cause and in the same amount as in 13 Nev. 17; State v. Wilson, 5 Nev. 43; State the original complaint and general damages v. Ah Mook, 12 Nev. 369. Following this rule, for the same diversion in a different amount. the court has refused to receive affidavits to He demanded to have the title quieted to the show irregularities or proceedings not reguwater and water rights, ditch and ditch larly certified. State v. Baker, 8 Nev. 141; rights, and privileges belonging and appur State v. McMahon, 17 Nev. 305, 30 Pac. 1000; tenant to his lands and premises, and for State v. Larkin, 11 Nev. 314; State v. Roddamages, costs, and general relief. The de erigas, 7 Nev. 328; State v. McLane, 15 Nev. fendant filed a demurrer to the amended com 345. Under rule 11, respondent is required plaint, which was sustained, and moved to to file and serve his points and authorities or have it stricken from the files, on the ground brief within 15 days after the service of apthat it was an attempt to change the parties pellant's brief, and a failure by either party mentioned in the original complaint and the to file his brief within the time provided is nature of the original complaint of which iť deemed a waiver of the right to orally argue purported to be an amendment. This motion the case or to recover certain costs, and unwas granted by the court. The transcript on der rule 8 exceptions or objections to the appeal, in two volumes, one designated “Plain statement or transcript must be taken at the tiff's and Appellant's Affidavit on Appeal," first term after the transcript is filed, and and the other without designation, were filed must be noted in the written or printed points
, of respondent and filed at least one day be 1907, and the appellant's brief was filed on fore the argument, or they will not be regardthe same day. On April 10th respondent's ed. On April 1st, without making any resbrief was filed in this court, and therein it ervation, respondent obtained an order allowwas asked that the appeal herein be dismiss ing it 10 days within which to file its brief, ed upon the ground that the record is not in and this and the fact that it failed to file its the form required by law. On April 11th ap brief or make any motion to dismiss the appellant filed notice of a motion to have re peal within 15 days after the filing of appel spondent's brief stricken from the files be lant's brief we deem to be a waiver of its cause it was not filed within the time required right to make the objections offered to the by rule 11 of this court (73 Pac. xiv). transcript. Johnson v. Wells, 6 Nev. 224, 3 Accordingly two questions are suggested Am. Rep. 213; Truckee Lodge v. Wood, 14 whether the record is properly certified, and Nev. 293. The notice and undertaking on apwhether the respondent has waived its right peal are in proper form, duly certified by the to have the appeal dismissed if the certifica clerk. If the order from which the appeal tion is defective, at least one of which it is is taken were not included in the record, its essential to determine.
omission would be fatal and could not be In the volume of the transcript marked waived; but the same conclusion and re"Plaintiff's and Appellant's Affidavit on Ap sult does not follow because there is an irpeal" copies of papers and proceedings of the regularity in the manner or form of certificacourt are set out and stated in the form of tion of the order by reason of its presence an affidavit by the plaintiff, followed by a nere attached to the specification of error uncertificate of the district judge that "the fore der an affidavit, a well-recognized method of going is the plaintiff's original affidavit on ap proof in general practice, to which is atpeal and identified as such,” and by the cer tached the certificate of the clerk and district tificate of the county clerk of similar effect. judge that it is appellant's “Affidavit on ApThe other and undesignated volume of the peal," instead of under a certificate following transiript seems to contain original papers the language of the statute. which are followed by the certificate of the This case may
may be distinguished froin clerk, certifying that it contained all of the Marx v. Lewis, 24 Nev. 306, 53 Pac. 600, in origin:il files and papers, excepting the affida that the defect in the certification here is vit on appeal, including the original judgment not as vital as the question involved there roll, original complaint, amended complaint, relating to the absence of any notice or bond
on appeal. If an inference may be drawn missing the complaint was in the nature from the dicta in that case that no defects of a final judgment which might be reviewed in the record can be waived, it would be on the judgment roll and papers certified here opposed to these decisions of this court in by the clerk. The practice act distinguishes (; and 14 Ner., but more directly it is in between the methods of certification of stateconflict with the opinions of the Supreme ments and of transcripts on appeal. Irwin Court of the United States and other courts v. Samson, 10 Xev. 282; Ry. Co. V. Johnson, holding that the lack of an undertaking 7 Wash. 97, 31 Pac. 567. Section 335 proon appeal and other omissions and irregulari vides: "The statement, when settled by the ties may be waived. Kingsbury F. Buck judge or referee, shall be signed by him, with ner, 131 U. S. 650, 10 Sup. Ct. 638, 33 L. Ed. his certificate that the same has been al1017; Michiel T. Meyer, 27 La. Ann. 173; lowed and is correct. When the statement is Weidner v. Matthews, 11 Pa. 336; Gardner agreed upon by the parties, they or their v. Investment Co., 129 Cal. 528, 62 Pac. 110; attorneys shall sign the same, with their cerThompson v. Lea, 28 Ala. 453; Wheeler v. tificate that it has been agreed upon by them Burlingham, 137 Mass. 581; Ross v. Ted and is correct.” Section 310 provides: "On (ler, 10 Ga. 426; Howth v. Shumard (Tex. an appeal from a final judgment, the appelCiv. App.) 40 S. W. 1079; Hoagland 1. Hoag. lant shall furnish the court with a transcript land, 18 Utah, 304, 51 Pac. 978; Kirkpat of the notice of appeal, and the statement, rick v. Cooper, 89 Ill. 210; Pace v. Lanier, if there be one, certified by the respective 2.Fla, 558, 6 South. 262; Engle v. Rowan attorneys of the parties to the appeal, or Tex. Civ. App.) 48 S. W. 757; Norris v. Mon by the clerk of the court. On an appeal from roe, 128 Mass. 386; Bolton v. McKinley, a judgment rendered on an appeal, or from 19 Ill. 404; Wilson v. Kelly, 81 Pa. 411; 2 an order, the appellant shall furnish the Enc. P. & P. 348; 2 Cyc. 882. and cases there court with a copy of the notice of appeal, cited.
the judgment or order appealed from, and Apparently there was no attempt to serve
a copy of the papers used on the hearing in or file the record as a statement on appeal the court below, such copies to be certified under section 332 of the practice act (Comp. in like manner to be correct." The amended Laws, $ 3427), which provides that, when the
complaint did not add any new cause of party who has a right of appeal wishes a
action or a new party, as was attempted to statement of the case to be annexed to the be done in the cases (ited by the respondent. record of the judgment or order, he should The allegations of the amended complaint prepare and file such statement and serve a relate only to property, acts, and matters copy thereof on the adverse party, who may set out in the original complaint. Both defile proposed amendments thereto, which may manded damages and general relief. The be settled and certified by the judge. It fact that the damages are not asked in the would seem that, instead of following these same amount in the different paragraphs is provisions, plaintiff intended to proceed un nothing unusual in amended complaints. The der section 337, which provides that the sec prayer in the amended complaint that the tions to which we have referred "shall not title be quieted is controlled by the allegaapply to appeals taken from an order made tions which were similar in both so far as upon affidavit filed, but such affidavit shall the plaintiff Smith is concerned. The court be annexed to the order in the place of the could grant any relief consistent with these statement mentioned in those sections." The allegations or with those in an answer. A language quoted was not intended to author part of the plaintiffs and the allegations on ize the filing of records on appeal set out their behalf relating to damages, which it and supported by an affidavit made after the had been held by the court on demurrer could oriler of the lower court and filed here for not be joined, were omitted in the amend. the purpose of showing its proceedings, but ed complaint apparently for the purpose of rather to allow a simple method for bring bringing it within the order of the court ing into this court for review orders of the sustaining the demurrer. Section 68 of the district court made upon affidavits filed there practice act provides that "the court may, in previous to the making of such orders by in furtherance of justice, and on such terms filing as the record on appeal copies of such as may be proper, amend any pleadings or orders attached to the affidavits on which proceedings by adding or striking out the they were based, supported by the proper name of any party," and section 71 that certificate of the clerk. However, it being "the court shall in every stage of an action concedied that the record is not sufficient as disregard any error or defect in the pleada statement on appeal as distinguished from ings or proceedings which shall not affect a transcript, if there were doubt as to ob the substantial rights of the parties." jections to the record being waived because As all the papers on which the court acted they were not presented in time, it might be are before us under proper certification, and claimed that the order in the lower court its order with them under affidavit and cerby analogy was made upon affidavit because tification of the clerk and district judge, it was based upon the complaint and amended which do not comply with the statute, we complaint, both of which were verified, but think the latter deferts should be deemed more properly be said that the order dis- waived because no objection to them, or mo
tion to dismiss the appeal, was made within the appellant that the court has misappre15 days as required by the rule, nor for hended the facts and misapplied the law more than 40 days after the filing of the which ought to obtain on those facts. It is transcript and appellant's brief, nor until contended that, during all the time that the after respondent ball without reservation Case was pending in the United States court, applied for additional time in which to file the proceedings in the state
in the state court wele its brief, and, as the complaint states a good coram non judice and void; and counsel for cause of action, we believe it is better that appellant cite McIver v. Florida Central & this technicality be so considered and dis P. R. Co., 63 L. R. A. 137, 110 Ga. 223, 36 regarded, to the end that a trial may be had
S. E. 775, and Kern v. Huidekoper, 103 U. S. and the rights of the parties more speedily 485, 26 L. Ed. 351. In the last case above determined.
cited it is held that a proper removal of the The order dismissing the amended com
cause from a state court to a United States plaint is reversed, and the district court will
court divests the state court of jurisdiction; allow the defendant a reasonable time in
but in the case at bar the Circuit Court of Which to answer.
Appeals held that the l'nited States court
had acquired no jurisdiction by the attempted SWEENEY, J., n'urs.
removal, and hence the removal was not a
proper one. Aside from that, counsel for apXORCROSS, J. (dissenting). Conceding, pellant appeared in the state court after the for the purposes of this case, that respond- attempted removal, tried the case there, and, ent's motion to dismiss the appeal was not after judgment had been rendered against the filed in time, and, for that reason, such mo appellant, attempted to take an appeal to this tion cannot be considered, nevertheless I court by serving notice of appeal and filing think the record in this case requires a dis an appeal bond, and thereafter did nothing missal of the appeal upon the court's own further in the matter for about two years. motion. What the appellant designates as Tbey inade no application to this court for his "Affidavit on Appeal" is something un an extension of time in which to serve and known to our practice, and is not author file their transcript on appeal. They canized by any possible construction of our not be permitted to blow both hot and colil civil practice act. Hart v. Spencer, 29 Nev. in this matter. They contend in one breath
89 Par. 289. That counsel filed his so that the state court had no jurisdiction, and called "Affidavit on Appeal" under a mis
again they claim that they took a valid apconception of our statute is clear. While I
peal from the judgment of the state court concede that defects and irregularities in
during the very time that they now contend the matter of an appeal, otherwise regular,
the state court had no jurisdiction of the may be waived, I do not regard the present
Cuse. If the state court had no jurisdiction, appeal in such a condition. The so-called
they, of course, could take no valid appeal "Atidavit on Appeal," having no authoriza
from any judgment rendered by it; but, as tion in law, is, in my opinion, a nullity and
we view it, their appeal was a valid appeal, cannot be considered for any purpose. As
because the case had not been properly rethe other volume of the record, taken alone,
moved. does not present anything for the court's
Having neglected and failed to comply consideration, I think the appeal should be
with the rules in filing their transcript and dismissed.
in pressing their appeal for more than two
years after the appeal was taken, and hav(1:3 Idaho, 531)
ing utterly failed to comply with the rules FINNEY V. AMERICAN BONDING CO.
of this court in preparing, serving, and filing
their transcript on appeal, the petition for a (Supreme Court of Idaho. July 30, 19907.)
rehearing must be denied; and it is so orOn petition for rehearing. Denied.
dered. For former opinion, see 90 Pac. 839. Neal & Kinyon and J. T. Morrison, for
AILSHIE, C. J., concurs. appellant. Frank J. Smith and W. E. Borah, for respondent.
(13 Idaho, 539)
STATE V. NEIL. SULLIVAN, J. This case was dismissed
(Supreme Court of Idaho. July 30, 1907.) on the motion of the respondent at the May, 1.907, term of this court, on the ground that
On petition for rehearing. Denieil. the transcript on appeal was not filed and
For former opinion, see 90 Pac, SGO. served in the time provided by paragraph 9 Bartch & Bagley and Snyder & Snyder, of rule 27 of the rules of this court (32 Pac. for appellant. J. J. Guheen, Atty. Gen., and v). The facts in the case, so far as the de- ! Edwin Snow, for the State. cision on the motion is concerned, are sufficiently stated in the opinion on the motion. SULLIVAN, J. This is a petition for reW Pac. 8.79.
hearing. Under the provisions of section It is earnestly contended by counsel for | 8076, Rev. St. 1887, when the judgment of
the appellate court is rendered in a criminal the certificate were not less than those of Calicase, it must be entered in the minutes, and
fornia at the time such certificate was presented
for registration to the California board. Hold, a certified copy of the entry forthwith reinit
that certificates or licenses to practice medicine teil to the clerk of the court from which the and surgery granted by the board of examiners appeal was t:lken. It would seem clear from of the District of Columbia and the state of the provisions of that section that the appel
Indiana, in the absence of proof that the re
quirements of such boards were not less than late court Coes not retain jurisdiction in those of California at the time the certificates criminal cases after the judgment is entered were presented for registration, were insuffiand a certified copy thereof remitted to the
cient to entitle the applicant to a license in Caltrial court; for, after the remittitur goes
ifornia. down, the general rule is that the appellate
2. VANDAMUS-BURDEN OF PROOF.
On an application for mandamus against a court has no further jurisdiction. However, medical board to compel petitioner's registraWe have gone through the petition for re tion as a physician and surgeon within the state, hering, and have concluded that a rehear
the burden is on the petitioner to prove such ing ought not to be granted, even if this court
material allegations on behalf of his claim as
are denied by the answer. still had jurisdiction to hear such petition, [Ed. Yote. For cases in point, see Cent. Dig.
It is urgell in the petition that the court vol. 33, Mandamus, $ 372.) misapprelieniled the facts in the case: that
3. CONSTITUTIONAL LAW – DELEGATION OF in the original opinion the court assumed that
LEGISLATIVE POWER. the proses utrix went boat riding with the ap St. 1901, p. 5ti, c. 51, authorizes the state pellant, when acrording to the evidence she
medical board to accept from an applicant for
registration as a physician and surgeon only Went with Jacbeth. It is admitted in the pe
such a diploma as is issued by some legally chartition that the statement in the transcript tered medical school, the requirements of which letves it somewhat ambiguous. at first im
shall have been at the time of granting the dipression, as to which person went boat rid
ploma in no particular less than those prescrib
ed by the Association of American Medical Coling with the prosecutrix. It is (lear, at any leges for that year, was not void as an improper rate, that she went boat riding with Mac delegation of legislative power. beth. The defenılant testified that his arms
[Ed. Note.--For cases in point, see Cent. Dig.
vol. 10, Constitutional Law, $ 99.] were lame from rowing the boat; but, con(eding that the defendant did not take the 4. PHYSICIANS AND SURGEONS - LICENSE prosecutrix boat riding. it makes no differ
St. 1901, p. 50, c. 51. authorizing issuance ence. The evidence is amply sufficient to
of licenses to practice medicine within the state, sustain the verdict of the jury.
declares that, when any applicant has shown Is to whether there were scratches upon himself possessed of the qualifications required
"and" has successfully passed the examination the defendant's face, there is a conflict in
by the board, the certificate must be issued, etc.; the evidence, and the jury, no doubt, passed and section 5 (page 57) requires the production upon that question. As to whether the par of the diploma issued by some legally chartered ties locked arms, the defendant testified that
meclical school, the requirements of which shall
have been in no particular less than those prehe took hold of the prosecutrix's arm, and
scribed by the Association of American Medical they went outside and walked over to the Colleges of that year, or satisfactory evidence barn, where the mules were standing. The
of having possessed such diploma or a license
from a legally constituted institution granting evidence also shows that they had their arms
medical and surgical licenses only on actual expartly around each other.
We have gone amination or satisfactory evidence as having carefully thr Jugh the petition for rehearing possessed such a license. IIell, that such act
required both a diploma or license and an examupon the other points suggested, and are sat
ination by the board. isfied that, if this court had power to grant a rehearing. the showing is not sufficient in In Bank. Application by James T. Arwine this case; and the petition for a rebearing for writ of mandamus ilgainst the board of must be denied.
medical examiners of the state of California
and the meinbers of the board, etc. An AILSILIE. C. J., concurs.
order was entered granting the relief prayied by the District Court of Appeal, and the
case was transferred to the Supreme Court
for hearing in bank. Writ denied. 1:1 lül. i'S)
Wallace W. Wideman and Benjamin P. ARWINE T. BOARD OF MEDICAL EXAM
Welch, for plaintifr. William C. Tait, George IXERS OF CALIFORNIA et al.
B. Becke, and Charles S Wheeler (J. F. (L. A. 2.009.)
Bowie, of counsel), for defendants. (Supreme Court of California. July S. 1907.) 1. l'HYSICIANS AND SURGEOXS - LICENSE TO
ANGELLOTTI, J. This is an application PRACTICE CERTIFICATES OF FOREIGX MED
for a writ of mandamus directed to the deICAL BOARDS. St. 1901. pr. 57, 59, c. 51, 88 5, 6, author
fendants requiring them to issue to the plainize the board of medical examiners to license antiff a certificate to practice medicine and applicant to practice after examination, or with
surgery in the state of California. The apout examinition ou presentation of a certificate from the medical examining board of the Dis: plication was originally inade to the District trict of ('olu:nbia or any state or territory
Court of Appeal for the Second District, whose legal rejuirements at the time of issuing i The matter was submitted for decision to
that court upon the affidavits filed by plaintiff at the institution of the proceeding and the verified answer of the defendants thereto. That court gave judgment for plaintiff, (lirecting the issuance of the writ as prayed. In its opinion that court found as a fact that plaintiff had successfully passed the examination required by the provisions of the act for the regulation of the practice of medicine and surgery. St. 1901, p. 36, c. 51. On petition for a hearing in this court, an order was made by us vacating such judgment and directing that the proceeding be heard and determined by this court. The matter has now been submitted to us for decision, as it was to the District Court of Appeal, upon the affidavits and answer, and the stipulation of counsel for defendants, made upon the oral argument, that as to the facts of the cuse the opinion of the District Court of Appeal may be accepted as correct.
The right of the plaintiff to the certificate sought by him was dependent upon his compliance with the provisions of the act already referred to. That act required that, in order to procure such certificate, he must produce before the board of medical examiners, in addition to satisfactory testimonials of good moral character, a "diploma issued by some legally chartered medical school, the requirements of which medical school shall have been at the time of granting such diploma, in no particular less than those prescribed by the Association of American Medical Colleges for that year, or satisfactory evidence of having possessed such a diploma, or a license from some legally constituted institution which grants medical and surgical licenses only upon actual examination, or satisfactory evidence of having possessed such a license.” It further required that, in addition to the presentation of such credentials, the applicant must be personally examined by such board of medical examiners and successfully pass such examination. It further provided that such board might, in its discretion, accept and register, without examination of the applicant, any certificate which shall have been issued to the applicant by the medical examining board of the District of Columbia or any state or territory of the United States, provided that the legal requirements of such medical examining board shall have been, at the time of issuing such certificate, in no degree or particular less than those of California at the time when such certificate shall be presented for registration to the board created by this act. Sections 5, 6, pp. 57, 59, of said act. The affidavits filed by plaintiff in instituting this proceeding contained allegations showing a sufficient compliance with these provisions to entitle him to a certifi(ate. These allegations were denied by the answer in two material matters, viz.: As to the sufficiency of the credentials presented
by him with his application for a certificate, and as to the satisfactory character of his examination as to qualifications.
Upon the question as to the satisfactory character of the examination, we shall assume that the issue must be determined in favor of plaintiff under the stipulation of defendants' counsel as to the effect to be given to the opinion of the District Court of Appeal relating to the facts of the case. this regard, the ultimate fact was as to whether or not the plaintiff had successfully passed the examination, and the District Court of Appeal explicitly found “that the plaintiff's examination was successful."
In the matter of credentials, the only documents alleged by the affidavits to have been produced to the board of medical examiners were, first, a diploma issued plaintiff from the medical department of the University of the South at Sewannee, Tenn., which was alleged to be a legally chartered medical school, the requirements of which at the time of granting the diploma were in no material particular less than those prescribed by the Association of American Medical Colleges for that year; and, second, certificates or licenses to practice medicine and surgery granted by the boards of examiners of the District of Columbia and the state of Indiana. As to the latter, it was not alleged nor does it otherwise appear that either of such boards granted licenses "only upon actual examination," or that the legal requirements of either of said boards were, at the time it issued the certificate, in no degree or particular less than those of California at the time when such certificates were presented for registration. So far as the record before us shows, these certificates were, therefore, insufficient under the requirements of the act, and could not authorize the granting of a license by defendants.
Concerning the diploma from the medical department of the University of the South, the allegations as to the requirements of the school were such, as we have seen, as to require acceptance of the diploma issued to plaintiff as satisfactory, viz., that those requirements were in no particular less than those prescribed by the Association of American Medical Colleges for that year. This allegation is, however, denied by defendants in their answer. The issue of fact thus made was not determined by the District Court of Appeals; that court saying in its opinion that upon the evidence before it that question of fact could not be determined. That opinion does not state any evidence which enables us to determine this question, and no evidence was introduced before us upon the issue. The burden is, of course, upon the plaintiff, in a proceeding of this character, to prove such material allegations in behalf of his claim as are denied by the answer.