Paso Builders, Inc. v. Hebard
Paso Builders, Inc. v. Hebard
Opinion of the Court
Relying upon Rule 75(g),
1. Preliminarily, we note that in this case the appellant designated the complete record and all the proceedings and evidence in the action as authorized by implication by Rules 75(a) and (d), thus obviating the need to serve with its designation a concise statement of the points upon which it intends to rely. NRCP 75(d); Basic Refractories v. Bright, 71 Nev. 248, 286 P.2d 747 (1955). Included as a part of the record so designated is a reporter’s transcript of testimony. We mention this particularly since Rule 75, when read as a whole, and especially parts (g), (i) and (o) thereof, requires that when a reporter’s transcript is designated as a part of the record on appeal, the appellant must pay for and furnish a copy of the transcript to each party appearing separately.
3. The district court’s order for transmission of the original papers in lieu of copies was made ex parte. The respondents contend that an ex parte order is not authorized. We do not agree. Though true that Rule 75 (i) does not specifically authorize the order to be made ex parte, Rule 75 (o) contemplates an ex parte order for the transmission of original papers when the request is presented to the Supreme Court, thus establishing the propriety of an ex parte order of this kind. We perceive no good reason for a different procedure when application for such an order is addressed to the district court.
In this case we order that the original papers, now on file with the clerk of this court, be returned forthwith to the district court to allow counsel for respondents an opportunity to conform their office records. They are to do so within 10 days after the clerk of the district court receives the file from this court. The appellant is ordered to pay for and furnish a copy of the reporter’s transcript to each party appearing separately within 10 days after the clerk of the district court receives the file from this court.
NRCP 75(g) reads: “The clerk of the district court, under his hand and the seal of the court, shall transmit at the expense of appellant, to the appellate court and to counsel for each party appearing separately, a true copy of the matter designated by the parties, including the designated portions of the reporter’s transcript filed pursuant to subdivision (b) of this rule, but shall always include, whether or not designated, copies of the following: the material pleadings without unnecessary duplication; the verdict or the findings of fact and conclusions of law together with the direction for the entry of judgment thereon; in an action tried without a jury, the master’s report, if any; the opinion; the judgment or part thereof appealed from; the notice of appeal with date of filing; the designations or stipulations of the parties as to matter to be included in the record; and any statement by the appellant of the points on which he intends to rely. The matter so certified and transmitted constitutes the record on appeal. The copy of the transcript filed as provided in subdivision (b) of this rule shall be certified by the clerk as a part of the record on appeal and the clerk may not require an additional copy as a requisite to certification.”
NRCP 75(i) provides: “Whenever the district court is of the opinion that original papers or exhibits should he inspected by the appellate court or sent to the appellate court in lieu of copies, it may make such order therefor and for the safekeeping, transportation, and return thereof as it deems proper.”
Parts of Rule 75 were amended following the decision of this court in Tryba v. Fray, 74 Nev. 320, 330 P.2d 499 (1958).
Concurring in Part
J., concurring in part; dissenting in part.
I concur with certain parts of the majority opinion
I disagree, however, that a district court (as distinguished from this court) can make an order for transmission of the original papers, in lieu of copies, ex parte. Especially should that be so where the order is sought by one of the parties to the appeal, as was the case here. A careful reading of Rule 75 NRCP indicates the record on appeal should consist of copies of those portions of the record designated, with the originals of the documents to remain with the clerk of the district court. The exception to this general rule is stated in Rule 75 (i).
Rule 75 (o) does not say the district court can make the order ex parte, especially where the application for the order is by one of the parties and not of the court’s own motion. It is silent on that point and I therefore feel
If, in this case, a motion had been made to the district court for an order sending the original record to this court, with notice to respondent, all the problems created by that circumstance could have been avoided. The trial court could have made such orders as were fair to each party to the appeal and avoided the entire controversy in this court with attendant expense and delay to the parties. Furthermore, I do not approve the idea of this court making “suggestions” to the trial courts or parties. Our pronouncements should be in the form of binding rules and orders.
“(i) Order as to Original Papers or Exhibits. Whenever the district court is of the opinion that original papers or exhibits should be inspected by the appellate court or sent to the appellate court in lieu of copies, it may make such order therefor and for the safekeeping, transportation, and return thereof as it deems proper.”
“ (o) Transmission of Original Papers. Whenever the Supreme Court, without or with motion or notice, orders the hearing of an appeal on the original papers, the clerk of the district court shall transmit them to the appellate court in lieu of the copies provided by this Rule 76. * * *”
Reference
- Full Case Name
- PASO BUILDERS, INC., a California Corporation v. R. T. HEBARD
- Status
- Published