Party who has appeared in action should be given notice of every application when he has any interest to appear and oppose it. Baylies Trial Prac. (2d ed.) 63; Pratt v. Rice, 7 Nev. 123; Gamble v. Court, 27 Nev. 244. Order made without notice is void.46 Cal. 32. Notice must appear in record on appeal. Herrlich v. McDonald, 22 P. 299.
Extending time to tender bill of exceptions is jurisdictional act; ex parte order therefor is void. Taylor v. Derry, 35 P. 60.
Copy of judgment roll is not to be annexed to copy *Page 38 of statement on appeal, unless appeal is taken from judgment.24 Nev. 461; 45 Nev. 265.
Opposing party is entitled to be heard on signing bill of exceptions. Rev. Laws, 5343. Notwithstanding Rev. Laws, 5358, where appellant fails to comply with provisions of statute, appeal must be dismissed. Ward v. Silver Peak, 39 Nev. 80; Western E. Co. v. Nevada A. Co., 33 Nev. 206.
Bill of exceptions must be settled, allowed, filed and served within twenty days (1923 Stats. 163.), sections 1, 2 and 13 of 1915 Stats. 164, being expressly repealed, nullify section 10 of 1919 Stats. 55.
Order affecting substantial right is vacated on showing want of notice. Wheeler v. Emmeluth, 121 N.Y. 241; Ward v. Tucker, 35 P. 126.
Section 17, article 4 of constitution limits legislation. Acts contrary thereto may be declared void. Dayton Mng. Co. v. Seawell, 11 Nev. 394.
Positive direction implies prohibition of anything contrary thereto. Potters Dwarris, Statutes and Constitutions, 64-5.
Section 2 of 1923 Stats. 163, is unconstitutional as attempt to invade power of judicial function of government, ignoring established rules of court, and violating substantial rights of litigants.
Failure to file and serve notice is defect which respondent can insist is substantial right vested in him. Court cannot cure defect by granting leave to file notice after time has expired therefor. Respondents' authorities must be entirely ignored for reason that this court has already determined question of necessity of notice of time of settlement of bill of exceptions against respondents. But if authorities are considered in point, then supplemental transcript which sets forth orders and proof of service makes them aside from any question before this court. We cite no authorities, as it so plainly appears no point at all has been made. *Page 39
OPINION This is an appeal from an order made after judgment. The facts are these: The plaintiff obtained a judgment against the Oklahoma Gold Mining Company, a corporation, in the Sixth judicial district court in and for Humboldt County, Nevada, upon which an execution was issued and placed in the hands of the sheriff of that county, under which he levied upon certain property of the defendant company. James Glynn was appointed receiver of the defendant company by the Second judicial district court in and for Washoe County, Nevada, and thereafter he filed in the suit of E. Reinhart Company, a Corporation, v. Oklahoma Gold Mining Company, a Corporation, wherein the judgment mentioned had been rendered, his petition averring his appointment and qualification as receiver of said defendant company and that the property is in the possession and under the control of said Glynn, as receiver, the issuance and levy of the execution as herein stated, and praying that the said sheriff be cited to show cause why a restraining order should not be issued restraining said sheriff from proceeding further under said execution, and from selling or offering for sale the property of defendant company under said execution. There is no allegation of the time of appointment and qualification of the receiver. So far as appears, it was after the levy by the sheriff. The sole ground relied upon for the order recalling the execution is the appointment and qualification of the receiver. Upon the hearing of said petition of James Glynn as receiver, it was ordered that the execution theretofore issued as aforesaid be recalled, set aside, and vacated, and that the sheriff return the same into court, and that said sheriff make no sale under said execution.
No cases are called to our attention by counsel for either party presenting a state of facts similar to those in this case, for the reason, probably, that none exists. *Page 40 Counsel for respondents cites several authorities on propositions of law concerning which there can be no dispute, but they do not bear upon the proposition to be determined. The case most strongly relied upon by respondents is that of State ex rel. Irving National Bank v. Second Judicial District Court, 47 Nev. 86,217 P. 962. That case is not in point. That proceeding was one in which the order sought to be set aside was made in the matter of the receivership. Such is not the case here. We held substantially in that matter that the court in the matter of the receivership had complete control over the proceedings in the law action — that it superseded the law court in controlling the proceedings under the execution. We further held in that matter that the court, having charge of the receivership, if a proper showing was made, might permit the sheriff to proceed with the execution sale. In other words, we practically held in the proceeding that the court in which the judgment was rendered had lost control over the proceeding had under the execution. But while we so held, we do not think there is anything in that decision giving any court authority to determine the rights as between the receiver and the sheriff, other than the court in which the receivership matter is pending. To take any other view would handicap, if not entirely tie, the hands of the court in that matter. The receiver, having the right to all of the assets of the defendant company subject to certain limitations, should have applied to the court wherein that matter was pending for such relief as he deemed himself entitled to, wherein the judgment creditor may at any time make a showing justifying an order of sale under the execution. If some other ground had been relied upon for the order complained of other than the mere fact that a receiver had been appointed for the Oklahoma Company, we might be reluctant to override the discretion of the lower court; but since no other court has jurisdiction over the assets of a corporation for which a receiver has been appointed, or authority to control the receiver, other than the court in which *Page 41 the receivership matter is pending, we can see no theory upon which the order recalling the execution was proper.
It is ordered that the order appealed from be reversed, and that the lower court take whatever steps are necessary to reinvest the sheriff with the authority of which he was divested by the order appealed from.