Austin v. Dilday , 55 Nev. 1 ( 1933 )

The notice of decision contemplated by section 8879 N.C.L., is a notice which should come from the prevailing party. Biagi v. Howes, 6 P. 100; Hayne on New Trial and Appeal, 1912 Edition, p. 119; Forni v. Yoell, 47 P. at p. 1018.

In the case of Jenkins v. Stephens, 231 P. 114, the supreme court of Utah touched directly upon the question of the proper manner of serving written notice. See, also, Fry v. Bennett (N.Y.), 16 How. Prac. 402.

Construing section 8921 N.C.L. with section 8879 N.C.L., it appears to the writer that the entry of the decision of June 27, 1932, was nothing more than a subsequent proceeding to appearance of the defendant, and that counsel for defendant was entitled to notice of that proceeding.

If we are entitled to notice of decision from the adverse party, which we contend we are and which we believe was the intention of the legislature at the time they inserted the word "written" in the statute, we feel that we are properly in court, as the only notice ever served upon us, tantamount to a notice of decision, was the notice relative to the court's written decision, served upon us by Mr. Austin on the 15th day of August 1932.

While we have no decisions from the supreme court of this state directing what procedure shall be taken in the matter of serving notice of decision, we have two cases which reasonably approach the subject. D'Errico v. D'Errico, 51 Nev. 76,269 P. 26, 4th headnote; Kondas v. Washoe County Bank, 50 Nev. 181,254 P. 1080, 4th headnote. The record shows that a true and correct copy of the court's decision was delivered to the attorneys for the appellant, by the clerk of the trial court, prior to July 1, 1932. Using the words of the trial court when passing upon the very point here in issue, the respondent maintains that this was "written notice of the highest order." It was signed by the judge himself and by his order was served by the clerk. So we see that if appellant did not have notice according to the common practice of attorneys in the district, he at least had such notice as has been sanctioned by this court in the case of Linville v. Scheeline, 30 Nev. 106,93 P. 225. And we believe that appellant may have difficulty in establishing that "common practice" in Nevada where death occurs at just the stage of the proceeding as in the instant case.

Surely counsel for appellant cannot plead surprise in any way, shape or form. Judge Hawkins' letter of June 24, 1932, told them that the same letter went forth to us, and also that he was directing the clerk to serve a written copy of his decision upon the attorneys for both litigants. We filed and served a cost bill within five days after receiving said copy of the court's decision. The record also shows that counsel for appellant received notice from us of our motion for an order substituting this plaintiff, as executor, as party plaintiff in place of Mary Hortense Proctor, deceased, and that they were present in court at the hearing of said motion on August 3, 1932, and objected thereto. It also appears that attached to the notice of motion referred to was an affidavit reciting certain facts in the history of the case, among them the filing of the decision and that proposed findings of facts, conclusions of law and judgment and decree were served upon counsel for appellant on July 14, 1932, and filed with the clerk. After substitution of this plaintiff, counsel for appellant were served by us with our proposed findings and a second cost bill.

OPINION This is an appeal from an order of the Eighth judicial district court of Nevada made and entered on the 19th day of October 1932, striking from the files the appellant's notice of intention to move for a new trial. It appears from the bill of exceptions that a complaint was filed in the action by Mary Proctor claiming damages from Claborn Dilday for injuries sustained by her due to his negligence in turning over an automobile in which she was riding as his guest in the city of Las Vegas, in Clark County. The action was tried by the court, Hon. L.O. Hawkins, district judge of the Sixth judicial district court, presiding in the place of the district judge of the said Eighth judicial district.

After the conclusion of the trial, Judge Hawkins returned to his home in Winnemucca, Nevada, and there, on the 22d day of June 1932, signed a decision in favor of the plaintiff, Mary Proctor. On the 23d day of June, A.D. 1932, said Mary Proctor died and Judge Hawkins was apprised of that fact on that date by a telegram from the attorneys for appellant and by separate telegram from one Harry H. Austin, attorney for said Mary Proctor. Judge Hawkins replied by letter of date June 24, 1932, to the senders of the telegrams and stating that he had written his decision in favor of Mary Proctor on June 22, 1932, the day before her death, and that he believed it proper that such decision be filed in the action. He also stated that he was on that date, to wit, June 24, 1932, returning to the clerk at Las Vegas the files in the case, together with original of decision and two copies thereof, with directions that the original be filed and a copy thereof delivered to attorneys for plaintiff and to the attorneys for defendant. He further stated that the letter was written in duplicate, one of which would be mailed to Austin, and the other to Stevens, Henderson Marshall. The three latter were attorneys for defendant, appellant here. On June 27, 1932, said Austin called at the office of the clerk of the court in Las Vegas and inspected the original decision filed in the office of the clerk on that date and did then and there receive from said clerk a true and correct copy of the decision bearing on the first typewritten page thereof in the margin, the initials of Judge Hawkins in his handwriting, and the date thereof, thus: "L.O.H. 6/22/32," and bearing on the second and concluding typewritten page thereof, at the end of said document, the original signature of Judge Hawkins. It appears from the bill of exceptions by the affidavit of William L. Scott, clerk of the Eighth judicial district court, that on the 27th day of June 1932, he received through the United States mail at Las Vegas, Clark County, Nevada, from Judge Hawkins at Winnemucca, Nevada, the original decision in the case, and pursuant to instructions of said judge did on the same day file the same; that he received with the original decision two exact copies thereof, each bearing the signature of Judge Hawkins, with instructions from him to deliver one copy thereof to Harry H. Austin, attorney for plaintiff, and one copy thereof to Stevens, Henderson Marshall, attorneys for defendant; that thereafter on the 27th day of June 1932, affiant delivered to said Harry H. Austin a copy thereof, and thereafter, and prior to July 1, 1932, affiant delivered to said Stevens, Henderson Marshall one copy thereof. On July 1, 1932, said Harry H. Austin served on appellant's attorney and filed with the clerk a memorandum of costs and disbursements to which was attached his affidavit which contained among other matters certain facts relative to the court's decision.

On July 14, 1932, written notice was given to defendant and his attorneys at their office in Las Vegas, Nevada, of a motion for an order substituting Harry H. Austin as executor of the estate of Mary Hortense Proctor as party plaintiff in this action in place of Mary Proctor, deceased, to which notice was attached the affidavit of Harry H. Austin containing, under the name and title of this case, as it then existed, the following words: "That thereafter and on the 22nd day of June, A.D. 1932, said court made and signed a written decision of the case, at Winnemucca, Nevada, awarding plaintiff damages in the sum of $36,733.40, and that said written decision was filed herein by the clerk on June 27th, A.D. 1932, and that the same directs plaintiff to prepare, serve and file her proposed Findings of Facts, Conclusions of Law, Judgment and Decree of Court in conformity therewith."

Thereafter on the 15th day of August 1932, said Harry H. Austin served upon counsel for appellant and filed with the clerk a notice, a copy of a part of which is as follows:

"In the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark. "Harry H. Austin, as executor of the Estate of Mary Hortense Proctor, deceased, Plaintiff, v. Claborn Dilday, Defendant. "Notice Relative to Court's Written Decision of the Case. "To Clayborn Dilday, the defendant above named, and to Messrs. Stevens, Henderson Marshall, his attorneys herein:

"You, and each and every of you, will please take notice that heretofore and on the 22nd day of June, A.D. 1932, the Honorable L.O. Hawkins, the District Judge who presided at the trial of this action which was then entitled in this court, `Mary Proctor, plaintiff, vs. Claborn Dilday, defendant,' made and signed his, and the Court's written decision of this case, wherein and whereby the court did decide that plaintiff is entitled to recover as damages from the defendant herein the sum of $2,162.00 for medical attention, hospital fees, nursing and incidental expenses, paid and incurred by her from the time of her injuries, until the trial of this action; the sum of $500.00 for earnings lost from the time of the accident until the trial of this action; and the sum of $34,071.40 as compensatory damages for loss of future earnings, and for physical and mental pain and suffering, and also her costs herein, and wherein whereby the court did order that judgment be entered in favor of plaintiff and against defendant for the sum of $36,733.40 together with costs of suit and wherein and whereby the court did direct plaintiff to prepare, serve and file her proposed Findings of Facts, Conclusions of Law, Judgment and Decree of Court, in conformity with said decision, and you and each and every of you will further take notice that said written decision of the case was filed herein with the clerk of this court on Monday, the 27th day of June, A.D. 1932. * * *"

On the 18th of August 1932, appellant filed and served his notice of intention to move for a new trial. Thereafter Judge Hawkins reassigned the case to the judge of said Eighth judicial district court for the purpose of entertaining and determining the motion to strike from the files the notice of intention to move for a new trial, which was stricken as aforesaid.

The main question to be determined is whether the notice of intention to move for a new trial was filed in time under the provisions of section 8879 N.C.L. The section reads: "The party intending to move for a new trial must, within five days after the verdict of the jury, if the action was tried by jury, or within ten days after written notice of the decision of the court, or referee, if the action was tried without a jury, file with the clerk, and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits or upon the minutes of the court."

1. We think the notice of intention to move for a new trial was filed in time. The notice of August 15, 1932, just quoted, was the only notice shown to have been served upon appellant that was in substantial compliance with the statute and therefore sufficient to cause the time to begin to run in which he could file and serve his notice of intention to move for a new trial. Appellant's notice of intention to move for a new trial was filed and served three days thereafter.

2. Judge Hawkins' letter to appellant's attorneys is not shown to have been received by them. Even if received it was in effect nothing more than a notice that a decision would be rendered in favor of respondent. The signing of the decision was not a rendition of it. The decision was not rendered until it was filed. Carpentier v. Thurston, 30 Cal. 123.

As shown by the affidavit of the clerk the decision was filed on June 27, 1932. The affidavit of the clerk also shows that he received with the decision two exact copies thereof each bearing the signature of said judge, one of which, pursuant to instructions of Judge Hawkins he did on the same day deliver to Stevens, Henderson Marshall. The clerk's affidavit, however, does not show that he placed the file marks on said copy or otherwise notified them that the decision had been filed.

3, 4. It is argued by respondent that written notice of the decision must be served by the adverse party, but be that as it may, we think the mere serving of a copy of a decision signed by the judge without notifying the other party in writing that such has been rendered, does not satisfy the statute. By the former mode the rendition is left to implication. The notice alleged to have been served on July 1, 1932, in connection with the memorandum of costs and disbursements was also ineffective. The same may be said of the notice alleged to have been given with the motion for substitution. They were too indirect in character. Compliance with the statute can only be made by a plain direct written notice of the decision.

The order striking the notice of intention to move for a new trial is hereby reversed.