[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The statute (sec. 9394 N.C.L.) requires that, on appeal from an order, we attach the original bill of exceptions to the order, which shall then constitute the record on appeal, and it requires nothing else. In this case the original bill of exceptions consists of the reporter's transcript of the proceedings, properly certified. The transcript of the reporter shows that the grounds relied upon on this appeal are: Errors in law occurring at the trial and excepted to by the plaintiff, the insufficiency of the evidence to sustain any judgment against the defendants, and that it is against the law. So, finally, the only question to be here decided is: "Were there errors in law occurring at the trial which would justify ordering a new trial, and did the *Page 386 evidence of the plaintiff make out a prima facie case against the defendants, and was it sufficient to sustain and justify a judgment against them?" There is nothing in the record before this court from which it can determine whether any notice of intention to move for a new trial was served and filed; or, if so, whether such notice was served and filed within the time required; or, if such notice were served and filed, there is nothing before the court from which this court can determine the ground for any motion for a new trial. Therefore, it is respectfully submitted that the order denying the motion for a new trial, from which plaintiff appealed, should be affirmed. Gill v. Goldfield Con. M. Co.,43 Nev. 1, 12, 176 P. 784, 184 P. 309; Water Co. v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079, 50 Nev. 24, 249 P. 565; Peri v. Jeffers, 53 Nev. 49, 52, 292 P. 1, 293 P. 25.
OPINION This case is now before us on an appeal from the judgment and from an order denying a motion for a new trial.
1, 2. There is not in the record in this case the motion for a new trial on which the court entered its order denying the same, hence it is contended by counsel for respondent that we cannot determine whether or not the court erred in its ruling, and consequently the judgment and order must be affirmed unless error appears from the judgment roll. Such is the rule established in Water Co. v. Belmont Dev. Co., 50 Nev. 24,249 P. 565.
It is contended by counsel for appellant that pursuant to section 9404 N.C.L., it is the duty of this court to issue an order to the lower court to certify to this court the motion for a new trial which was made in the case. *Page 387 The section mentioned authorizes this court to order the lower court to certify up "additional records or proceedings as shall be necessary or proper to correct or complete the record on appeal."
When this case was before us on a motion to strike, among other things, the motion for a new trial, we said:
"Nothing can become a part of a record on appeal from a final judgment and an order denying a motion for a new trial, unless it is properly a part of the judgment roll proper or is embraced in a bill of exceptions, or in a transcript of the evidence, in lieu of such bill of exceptions, certified by the court stenographer. Peri v. Jeffers, 53 Nev. 49, 292 P. 1.
"None of the papers sought to be stricken are a part of the judgment roll, nor embraced in a bill of exceptions, nor certified to as a part of the testimony, as is permitted by chapter 97, Stats. 1923, nor fall within the exceptions stated in sections 12 and 14, c. 142, Stats. 1915; hence they are not properly a part of the record in the case, and should be stricken." Brearley v. Arobio, 54 Nev. 382, 12 P.2d 339.
It is not our understanding that it was the intention of the legislature in enacting section 9404 N.C.L., mentioned, to require this court to order the trial court to certify up any paper or document on file in the lower court to become a part of the record on appeal, which is not a part of the judgment roll, or embraced in a bill of exceptions, or which falls within one of the exceptions pointed out in our former opinion in this case. If such were the intention of the legislature we would find it necessary to do the ridiculous thing of striking out a paper on one motion but to order it sent up on another. Such certainly could not have been the intention of the lawmakers.
It not being contended that any reversible error appears from the judgment roll, pursuant to Water Co. v. Belmont Dev. Co., supra, the judgment and order appealed from should be affirmed.
It is so ordered. *Page 388