ON THE MERITS January 4, 1939. 85 P.2d 1016. OPINION In November 1937 respondent (plaintiff) commenced an action against appellant East Standard Mining Company (defendant) for a money judgment, and caused certain personal property to be attached. Appellant Mamie Joseph intervened, alleging that she held a prior lien on said property by virtue of a real and chattel mortgage executed and delivered to her by defendant in May 1936 to secure an indebtedness of $10,000, of which only $6,693.57 had been repaid.
After issue joined, a trial was had by the district court, without a jury. Judgment was awarded plaintiff, on his first cause of action, in the sum of $375 with interest, and on his second cause of action, in the sum of $554.27 with interest. The complaint of the intervener was, by said judgment, dismissed.
No motion for new trial was made, either by defendant or intervener.
Defendant and intervener have appealed from those portions of the judgment which read as follows: "For the sum of Five Hundred Fifty-four and 27/100 ($554.27) Dollars, with interest thereon at the rate of seven per cent per annum from June 1st, 1936, to and until March 7th, 1938, amounting to the sum of Sixty-seven and 87/100 ($67.87) Dollars, on his second cause of action, being the total sum of Six Hundred Twenty-two and *Page 141 14/100 ($622.14) Dollars on said second cause of action; and making a total money judgment in favor of said plaintiff and against the said defendant East Standard Mining Company, a corporation in the sum of Ten Hundred Thirty and 83/100 ($1030.83) Dollars, together with costs and disbursements herein taxed by the Clerk of this Court at the sum of $122.75. It is further ordered and adjudged that the complaint of the intervenor herein, Mamie Joseph, be and the same is hereby dismissed."
Defendant has further appealed from an order denying its motion to discharge the writ of attachment, and from a minute order denying its motion to retax costs.
1, 2. There is no bill of exceptions, hence we can look only to the judgment roll. Respondent has moved this court to strike from the record on appeal a large number of papers and documents, upon the grounds (1) that they are not a part of the judgment roll, and (2) that they have not been authenticated and incorporated in a bill of exceptions. Appellants make no claim that there is any bill of exceptions, or that any of the papers asked to be stricken have any place in the judgment roll; the motion to strike must therefore be, and is hereby, granted. Our inquiry into the matter of alleged error in the court below is thus limited to the pleadings, the copy of the finding of that court, and the copy of its judgment. Subd. 2, sec. 8829 N.C.L. 1929.
Appellants contend that the district court erred in refusing to allow a set-off in the sum of $378 against plaintiff's second cause of action — the amount allowed by the court being but $50.
The second alleged error complained of is the action of the district court in denying defendant's motion to discharge the writ of attachment.
Defendant further contends that the trial court erred in denying its motion to retax costs by striking out an item for keeper's fees amounting to $74.
3. If any error was committed by the lower court with respect to any of said three assignments of error, *Page 142 such error cannot be considered on this appeal because it does not appear on the face of the judgment roll, and there is no bill of exceptions.
Appellants further assign as error the action of the district court in dismissing intervener's complaint in intervention. The question presented by this assignment appears from the following portions of the trial court's findings of fact and conclusions of law: "The court further finds that on May 24th, 1936 the defendant, East Standard Mining Company, for value received, by its duly authorized officers, made, executed and delivered to Mamie Joseph, Intervenor herein, a note in the sum of $10,000.00, and bearing interest at 6%, payable two years after date; that on the same day said East Standard Mining Company by its duly authorized officers made, executed and delivered to said Mamie Joseph a mortgage, securing said note, covering certain mining claims located in Elko County, Nevada, and also covering personal property located upon said mining claims consisting of mining machinery, pipe, rails, tools, timber, cars, engines, wells, buildings, well drilling machinery and mill machinery. That there has been paid on said note the sum of $6,693.57, leaving a balance owing upon said note of $3,306.43, with interest. That the said mortgage was filed for record at the request of Mamie Joseph on the 25th day of August, 1936, and recorded in Book 3 of real and chattel mortgages at page 517 thereof, as of said date, and that the said record was duly indexed in the real estate index as deeds and other conveyances are required to be indexed. That the said mortgage was not filed and alphabetically indexed in the proper book of indexes, but not for recordation, in the office of the recorder of Elko County, Nevada, where the property mortgaged is located at the time the mortgage was executed, and therefore the said mortgage, as to the personal property therein described, is void as against the creditors herein; and that said complaint in intervention should be dismissed, with costs in favor of the plaintiff." *Page 143
We are referred by appellants to section 6 of "An act concerning county recorders, and defining their duties," sec. 2110 N.C.L. 1929, as amended, Stats. of Nevada 1935, chap. 148, pp. 328, 329. Said section reads as follows: "Whenever an instrument conveying, encumbering or mortgaging both real and personal property shall be presented to any county recorder for recording, the said county recorder shall record such instrument in a book kept by him for that purpose, which record must be indexed in the real estate index as deeds and other conveyances are required by law to be indexed, and for which he may receive the same fees as are allowed by law for recording and indexing deeds and other instruments, but only one fee for the recording of such instruments shall be collected." Said act of 1935, amending said section 6, as aforesaid, contains this further provision: "All acts and parts of acts in conflict with the provisions of this act are hereby repealed."
Said section 6, as originally enacted (Stats. of Nevada 1921, chap. 92, P. 157, N.C.L. 1929, sec. 2110), provided that the record of an instrument conveying, encumbering or mortgaging both real and personal property, "must be indexed in both the real estate index and the personal property index, as deeds and other conveyances are required by law to be indexed * * *." (Italics ours). In other words, the only change made in said section 6 by the 1935 amendment consisted in the omission of the requirement that such records must be indexed in the personal property index. The reason for said change in section 6 becomes apparent when we consider certain other legislation enacted by the same (1935) legislature.
Section 1 of chap. 116, Stats. of Nevada 1935, p. 242, amends the title of the act of March 8, 1923, "concerning mortgages of personal property, providing for their recordation, and other matters relating thereto, and repealing all acts or parts of acts in conflict herewith" (Stats. of Nevada 1923, chap. 91, p. 153; vol. 1 N.C.L. *Page 144 1929, p. 288), by changing the word "recordation" to "filing." Section 2 of said act of 1923 (sec. 986 N.C.L. 1929), as amended, Stats. of Nevada 1935, chap. 116, p. 243, reads as follows: "Every mortgage, deed of trust or other instrument which creates a lien upon personal property, crops, or chattels, even though real property be included therein, is a chattel mortgage within the terms of this act, and when the same is executed, as required by this act, shall be entitled to filing as provided for in this act."
Section 3 of said act of 1923 (sec. 987 N.C.L. 1929), as amended, Stats. of Nevada 1935, chap. 116, p. 243, is as follows: "A mortgage of personal property or crops is void as against creditors of the mortgagor and subsequent purchasers or encumbrancers of the mortgaged property in good faith and for value, unless the mortgage, or a copy thereof certified to be such by a notary public or other officer authorized to take acknowledgments, or an executed counterpart of such mortgage, is filed, but not for recordation, in the office of the recorder. * * * A mortgage of personal property or crops when so filed operates as constructive notice to all persons of the contents thereof."
Said section 3 was again amended on March 19, 1937, p. 162, c. 87, by adding, after the word "filed," in both of the two places where that words occurs in said section, the words "and alphabetically indexed in the proper book of indexes."
We refer also to the wording of sections 4 and 5 of the 1923 act (secs. 988 and 989 N.C.L. 1929, as amended, Stats. of Nevada 1935, chap. 116, pp. 243, 244), and to that of chap. 119, Stats. of Nevada 1935, pp. 247-251, chap. 121, Stats. of Nevada 1935, pp. 253-255, and chap. 123, Stats. of Nevada 1935, pp. 258, 259.
4, 5. It appears from the judgment roll that the requirements of amended section 3 of the chattel mortgage act of March 8, 1923, were not complied with in this case. Said amended section was not repealed or superseded by chap. 148, Stats. of Nevada 1935, pp. 328, *Page 145 329. The district court was therefore right in dismissing said complaint in intervention.
No motion for a new trial having been made in this case; there being no bill of exceptions in the record on appeal, and no error appearing in the judgment roll, the judgment and orders appealed from must be, and are hereby, affirmed, with costs to respondent.