
    MELLAN v. MESSENGER
    No. 2631
    October 6, 1924.
    228 Pac. 1095.
    1. Appeal and Error — Motion to Dismiss on Matters Not in Record To P>e Accompanied by Affidavit.
    Motion to dismiss appeal, so far as based on matters not ■appearing in tbe record, should he accompanied by affidavit or other showing.
    2. Appeal and Error — Statute against Dismissal for Defect in Appellate Practice till Opportunity to Amend I-Ield Applicable. n
    Stats. 1923, c. 97, sec. 2, providing against dismissal of appeal for defect in appellate proceedings till appellant has been given opportunity to correct it, held to be construed most liberally, and applicable to riiotion to dismiss, on ground that trial court had not disposed of respondent’s objections there made to bill of exceptions.
    3. Appeal and Error — Ground of Motion to Dismiss, that Bill of Exceptions Not Piled with Trial Court Clerk, Held Not Supported.
    Ground of motion to dismiss appeal, that bill of exceptions had not been filed with trial court clerk, held, to fail as not supported; bill bearing what purported to be notation of its having been duly filed, and what purported to be clerk’s certificate that it was true bill of exceptions and record on appeal.
    
      4. Appeal and Error — Appeal prom Judgment and Order Denying New, Trial Must Be within Time Limit for Both.
    Under Stats. 1913, c. 91, providing tliat appeal may lie taken from final judgment within six months after it is rendered, and from an order denying new trial within GO days .after order is made and entered, an appeal, though from both judgment and order, not being within statutory periods as to each, is too late, though within six months from denial of new trial.
    See 3 O. J. sec. 1050, p. 1053, n. 11; 4 C. J. sec. 2399, p. 5S8, n. S7 (new) ; see. 2420, p. 599, n. 1 (new).
    Appeal from Seventh Judicial District Court, Mineral County; J. Emmett Walsh, Judge.
    Action by Jess Mellan against Ed. V. Messenger. From judgment for defendant, and order denying new trial, plaintiff appeals.
    Appeals dismissed, and judgment and order affirmed.
    
      I. S. Thompson, for Appellant:
    Plaintiff complied with Rev. Laws, 5068, so far as he could in furnishing complete itemized statement of account. Law does not require impossibilities. Connor v. Hutchinson, 17 Cal. 279. Though notice and demand be not'complied with, it is still in discretion of court to allow evidence. Silva v. Bair, 75 Pac. 162. At least plaintiff was entitled to prove items set forth.
    Appellant’s right to appeal dates from decision on motion for new trial, until which time judgment does not become final for purpose of review. Brown v. Evans (Nev.),'18 Fed. 56.
    Transcript plainly shows question presented. Such record does not need approval of opposite counsel nor certificate of judge, and may be filed in lieu of bill of exceptions and constitutes bill of exceptions without further stipulation or settlement. 1923 Stats. 164.
    Having prevented hearing on merits, respondent now seeks to prevent review.
    Separate appeals from judgment and order denying motion for new trial are not necessary. First would be valueless and would deprive appellant of very object of motion for new trial.
    
      
      J. H. White and C. C. Ward, for Respondent:
    Immediately upon service of alleged transcript objections and motion to strike were made, filed, and served, which objections and motion have not been ruled upon. If decided favorably to defendant, alleged appeal will be moot question for there will be nothing for this court to decide. Jones v. Montagu, 194 U. S. 150; State v. Savage, 90 N. W. 898.
    Notice of appeal purports to appeal from judgment of trial court when no final j udgment was rendered, and such appeal is dated more than six months after date of alleged judgment, and is too late. 1913 Stats. 113.
    Pretended appeal was not filed in this court until more than seventeen days after time prescribed.
    If it be contended that appeal was from decision, instead of final judgment, still, as no notice of intention to appeal from decision sustaining objection to introduction of testimony was made, filed, or served within twenty days from rendition thereof, it came too late. 1915 Stats. 166.
    There has been no finál judgment. Appellant attempts to appeal from decision sustaining objection to introduction to certain evidence, which decision was not error, as failure to give itemized account on demand acts as bar to introduction of any evidence in support thereof. Rev. Laws, 5068.
   OPINION

By the Court,

Coleman, J.:

This case is before the court on a motion to dismiss the appeal.

• The motion to dismiss is based upon several grounds, one being that objections had been made by the defendant (respondent) to the so-called bill of exceptions in the district court, and that the same had .not been disposed of in that court.

We may say here that there is no affidavit accompanying the motion to dismiss, or other showing which we think would justify our granting the motion, so far as it is based upon matters not appearing in the so-called record on appeal. But there is another reason why the motion is not good. Section 2, c. 97, Stats. 1923, provides that no appeal shall be dismissed for any defect or informality in the appellate proceedings until the appellant has been given an opportunity to amend or correct such defect. This is a wholesome provision, and we think it should be construed most liberally.

Another ground of the motion is that the so-called bill of exceptions had not been filed with the clerk of the trial court. Inspection thereof shows that it bears what purports to be a notation of its having been duly filed. There is also what purports to be a certificate of the clerk, under the seal of the court, that “the within is the true, original bill of exceptions and record on appeal. * * * There being no showing in support of the respondent’s motion, this ground of objection must fail.

The respondent also moves to dismiss the appeal, upon the ground that it was not taken either from the judgment or from the order denying the motion for a new trial within the statutory time. The statute (Stats. 1913, p. 113) provides that an appeal may be taken from a final judgment within six months after the judgment is rendered, and from an order denying a motion for a new trial within 60 days after the order is made and entered in the minutes of the court. The final judgment was rendered on November 24, 1922, and on June 26, 1923, the order denying the motion for a new trial was filed with the clerk of the court. The appeal from both the judgment and the order was taken on September 19, 1923.

It is clear that neither appeal was within the time limit fixed by the statute. It is said by counsel for appellant that where the appeal is from both the judgment and the order denying a motion for a new trial, the appellant has six months from the date of the denial of the motion for a new trial in which to appeal, citing Brown v. Evans (C. C.), 18 Fed. 56, in support of the contention. We do not think this case undertakes to construe our statute, nor one similar to it, and, if it did, we would be disposed not to follow it. To give our statute the interpretation contended for would result in giving a party two opportunities to appeal from the judgment, and greatly delay the perfecting of the appeal. It is obvious from a reading of the statute that no such a result can be accomplished, except by a distorted interpretation.-

Appellant having failed to take an appeal from both the judgment and the order within the time limit, it follows that both appeals must be dismissed, and that the judgment and order must be affirmed.

It is so ordered.  