OPINION In granting a rehearing in this case we limited it to a consideration of the question of whether or not this court had jurisdiction to determine the appeal from the judgment entered in the trial court, and in the event we determined that we had, then whether the order made in the original opinion should have been limited to ordering a new trial.
1. In the petition for rehearing respondent for the first time questioned the jurisdiction of this court to entertain the attempted appeal from the judgment entered in the trial court. Respondent was permitted to do this as an exception to the well-established rule *Page 8 against granting rehearings on points then raised for the first time, because of the raising of a jurisdictional point. The contention of lack of jurisdiction is based upon the ground that the action was one of unlawful detainer under paragraph 5 of section 9135 N.C.L. 1929, and such being the case, the time for taking an appeal from the judgment is governed by section 9148 N.C.L. 1929, the same being section 659 of the civil practice act, which provides, in part: "Either party may, within ten days, appeal from the judgment rendered. * * *"
The appeal in this case was taken seventy-four days after the filing of the decision rendered by the district court, and twenty-one days after the signing and filing of the formal judgment of the district court.
The original complaint establishes the action, at first instituted, to be one of unlawful detainer, and it is governed by chapter 65 of the civil practice act, Comp. Laws, secs. 9132-9152, wherein its provisions are inconsistent with the other provisions of the civil practice act. Roberts v. District Court,43 Nev. 332, 185 P. 1067.
2. Respondent filed a cross-complaint demanding a money judgment. Such practice is permitted in this state in order that an entire controversy between the parties may be determined in one action. Yori v. Phenix, 38 Nev. 277, 149 P. 180.
The trial court rendered judgment in favor of respondent on his cross-complaint, in the sum of $732.41, and also ordered that appellant take nothing.
3, 4. Appellant urges that the appeal from the money judgment rendered is not governed by the provisions of the unlawful detainer statutes, but is governed by the provisions of the civil practice act allowing six months to appeal from a judgment. In this contention we think appellant is correct. By failing to perfect his appeal within ten days appellant waived the right to have the judgment, insofar as it denies relief in restitution of the property and related subjects, reviewed. In an appeal from a money judgment we find none of the *Page 9 reasons requiring haste and summary action, which are so important in unlawful detainer proceedings. The mere fact that such a judgment is given in an action where unlawful detainer is also involved does not change its character or statutory classification, insofar as time given in which to appeal is concerned. The appeal from the money judgment was in time.
5. This case can and should be disposed of without ordering a new trial.
The order of this court, entered in the original opinion, reversing the judgment of the trial court awarding respondent a money judgment will stand, and the trial court is directed to enter a judgment in favor of appellant in the sum of $836.25. This amount is for excess power furnished by appellant to respondent under the terms of the contract referred to and construed in the original opinion of this court.
In all other respects the appeal from the judgment is dismissed. *Page 10