The affidavit of the clerk of the lower court establishes conclusively that the order of the court of which appellant complains "was made and entered on the minutes of the court on the 9th of June, 1930." The order vacates the judgment rendered on January 10, 1930, quashes the execution issued on said judgment, and restrains the sheriff from proceeding further on said execution. It is elementary, of course, that the action taken by the court constitutes and is an order made after judgment. N.C.L. 1929, sec. 8885.
The appeal from the order in this case not having been perfected within the sixty days as required by statute, said appeal must be dismissed. Ballard v. Purcell, 1-2 Nev. 290; Reinhart v. Company D, 23 Nev. 369; Maynard v. Johnson, 2 Nev. 16.
AT Clyde D. Souter, James T. Boyd and Sardis Summerfield, for Appellant: It is true that the court in this cause made its decision and signed a judgment after the entry of the original judgment, but we do not believe it to be the fact that the decision and the written decree is what is usually contemplated to be an order made after judgment. The whole proceeding to set aside the original judgment was at the instigation of Catharine M. Gallagher, who was not a party to the original proceeding and never participated in it, therefore she was a stranger to it. It was necessary for said Catharine M. Gallagher to commence an action of some sort to get standing in the cause, and this she attempted to do by her petition filed therein. After considering the affidavits, the court made its decision in a written opinion and subsequently made its findings of fact and conclusions of law and signed a judgment, although the judgment was labelled "Order." It must be clearly apparent that the court rendered a judgment when it directed the vacating of the judgment *Page 335 rendered against the Nevada Treasurer Mining Company, restrained the sheriff from proceeding further and awarding costs to Catharine M. Gallagher, for the so-called order could not have gone to that extent. A decision that determines the rights of the parties in an action or proceeding is a judgment, and is not a direction N.C.L. 1929, secs. 8794, 8909.
OPINION The appeal was perfected on December 3, 1930. Omitting its formal parts, the notice of appeal reads as follows:
"1. From that certain order and judgment, and the whole thereof, made and entered in the minutes of the Court in the above-entitled action and Court on the 6th day of June, 1930, wherein and whereby it was ordered that the Judgment heretofore entered in the above-entitled cause in favor of M.J. Hough and against Nevada Treasure Mining Company, aforesaid, be vacated and set aside and for nothing holden; that the default of the Defendant, Nevada Treasure Mining Company, be set aside and vacated and for nothing holden; and whereby a judgment in favor of the Defendant, Nevada Treasure Mining Company, aforesaid, and the intervening petitioner and stockholder, Catharine M. Gallagher, was entered, and the prayer of the petitioner granted."
The minute "order and judgment," so called, referred to in the notice of appeal, reads as follows:
"It will therefore be the order of the Court that the Motion to strike made by plaintiff be and the same hereby is denied that the objections of plaintiff to the introduction of the petition of Catharine M. Gallagher notice of Motion. affidavits in support of the motion order to show cause. certificate of the Secretary of State of the State of Washington and to the hearing of the Motion be overruled. *Page 336
"It is further ordered adjudged and decreed that the judgment in this case be vacated and set aside. That the execution issued thereon be quashed and declared of no effect and that the sheriff of Eureka County Nevada be restrained from proceeding further on said execution.
"Plaintiff is given an exception to the Court's rulings and the petitioner is hereby awarded costs.
"Dated this 6th day of June, 1930."
The respondent Catharine M. Gallagher moves to dismiss the appeal upon the ground that it was not taken in time. She moves to strike the record on appeal upon the ground that the papers, documents, and files constituting the transcript on appeal are not incorporated in a bill of exceptions in conformity to the statute. If it be determined that the motion to dismiss the appeal is well taken, it will be unnecessary to pass upon the motion to strike.
The question raised by the motion to dismiss is resolvable into one of whether the appeal is taken from a final judgment in an action or special proceeding, or whether it is an appeal from a special order made after final judgment, entered in the minutes of the court. Section 8885, N.C.L. 1929, provides that an appeal may be taken from a final judgment in an action or special proceeding in which the judgment is rendered, within six months after the rendition of the judgment; an appeal may be taken from any special order made after final judgment within sixty days after the order is made and entered in the minutes of the court.
The statutes point out for us the distinction between a "judgment" and an "order." "A judgment is the final determination of the rights of the parties in the action or proceeding." Section 8794, N.C.L. 1929. "Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion." Section 8909, N.C.L. 1929.
The court is of one mind that the appeal herein was taken from an order vacating and setting aside a final *Page 337 judgment made and entered in the minutes of the court on the 6th day of June, 1930, upon the motion and petition of the respondent, Catharine M. Gallagher. As the appeal was not perfected until the 3d day of December, 1930, or more than sixty days after the minute order and judgment was entered in the minutes of the court, the appellant's right of appeal was lost. Weinrich v. Porteus, 12 Nev. 102; Reinhart Co. v. Company D,23 Nev. 369, 47 P. 979.
The motion to dismiss the appeal is sustained.
It is so ordered.
ON PETITION FOR REHEARING September 9, 1931.