dissenting:
I cannot conscientiously concur in the decision of my esteemed associates sustaining a dismissal which was unjustly and improperly made without notice, hearing, or any grounds to support it. On the 10th day of last July an affidavit and motion to dismiss the appeal was filed, which recited that the case had been tried and judgment entered in favor of the plaintiff in the lower court; that an order had be.en made overruling a motion for a new trial; that within the time allowed by law the defendant had appealed from the judgment, but not from the order overruling the motion for a new trial, by giving notice and a bond staying execution and for costs; that the appeal was perfected more than thirty days prior to the commencement of the July term of this court;- and that no transcript has yet been filed. No certificate of the clerk as required by Rule 3 to obtain a dismissal was presented or has ever been filed in this court, and, if the affidavit could be considered in lieu of such certificate, which it cannot be under the rule nór under well-recognized principles and decisions of this and other courts, the affidavit fails to state any facts which would make a certificate sufficient, or which would justify a dismissal of the case. (Alexander v. Archer, 21 Nev. 31; Brandon v. West, 29 Nev. 138.)
When- the motion was called to the attention of the court on the 20th day of July, 1908, the order was -made without notice dismissing the appeal from the bench hurriedly and inadvertently without scrutinizing the affidavit under the *157erroneous belief of the court that the appellant had abandoned the appeal. Later his attorney, being in court in another case and having become aware of the dismissal, stated that the delay had been caused by the fact that the clerk of the district court was so far behind with his work that he had failed to prepare the record on appeal as requested of him.
It is said now that appellant’s notice of motion to vacate the order dismissing the appeal stated as grounds that no notice of the motion to dismiss was served upon the appellant or his attorney; that the appeal was not set down for hearing or appellant notified; that the notice was not called up on any regular term day of the court or day upon which appellant would be obliged to take notice without first having been served; and that the motion cannot be in force without giving notice to the appellant, but it is asserted that in neither the notice nor motion was any question raised that the dismissal did not conform to the requirements of Rule 3. I am quite unable to see any necessity for appellant to have made any reference to this rule, or how this court can justify its own error by reason of his failure to do so. The affidavit upon which the dismissal had been made did not comply with Rule 3 in any way, and failed to state the facts required to be shown in the certificate of the clerk under that rule, and especially failed to show that appellant had received a transcript or had not requested one from the clerk, or omitted to pay the fees therefor, if demanded, or that the delay had been caused by appellant or any one but the clerk, as required to be shown by a certificate under that rule, before a dismissal is to be granted.
Is there any logic, reason, or justice in the conclusion that appellant was not entitled to have the case reinstated because he failed to assert in his notice that the dismissal was not in accordance with Rule 3, when neither counsel for the respondent nor the court had in any way followed the rule in dismissing the case, and when no notice of any kind had been served upon the appellant, and he had not been informed that the dismissal had been secured under that rule? At least, the consistency of requiring a reference in the nature of a conclusion of law to the rule by appellant in his motion *158when no compliance with that rule was required of respondent, or of sustaining an order made without notice or compliance with that rule depriving appellant of his right to have a hearing, and at the same time holding that he may not be restored to his right because he made no such reference in his motion, is not apparent; for the law ought to be fully as favorable to the restoration of a right as to the procedure by which it is lost. In my opinion it was not necessary for the appellant to file any motion or brief, and, if it had been, his motion designated grounds sufficient to warrant his reinstatement. Nevertheless appellant did file a brief on October 10, 1908, in behalf of his motion to reinstate, which brief was equivalent to a motion and in which it was alleged that "Rule 3 of the supreme court is the only rule under which a motion may be made in the supreme court to dismiss an appeal without notice, and as this motion does not come within the provisions of said rule the court erred in sustaining the motion to dismiss said appeal.”
As respondent did not comply with Rule 3 in his affidavit and motion to have the appeal dismissed, I can see no more reason for requiring the appellant to state in his motion that the dismissal was not in compliance with that rule than to assert it was not in accordance with the "Golden Rule” or any other. There was no rule, statute, practice, or decision requiring appellant to state in his notice that the case had not been dismissed in accordance with Rule 3. If it be assumed that the present decision is to be a precedent to be followed as well as the others of this court, and that in the future it means that in every instance or case where an action is dismissed without notice or any ground therefor or compliance with any rule that the party moving to reinstate must technically assert that the action was not dismissed in accordance with Rule 3 before he can have any right to reinstatement, then it may be safely asserted that there is no way in which the appellant could have been aware of such requirement at the time he made his motion. If it is to be held that any party who has unquestionably been thrown out of court without notice and without any reason therefor cannot be reinstated without specifying something in his motion *159Avhich had never been required by any law, rule, practice, or decision, then we have passed the danger line; no one is safe, and any litigant may be helpless to maintain- his constitutional and equitable rights to have his case heard and determined by the highest court in this state.
As soon as it was stated to the court that the delay was occasioned by the failure of the clerk in not preparing the transcript after it had been demanded, and it appeared that the appellant had not abandoned the case, the court should have promptly rectified its own mistake on its own volition, set aside the dismissal made without notice, ground, or showing therefor, under the mistaken belief that appellant had abandoned the case, treated the order of- dismissal as void, and restored the action to its former standing. The court would be as much justified in dismissing every cause pending before it without any motion or showing as it was in dismissing this case without any ground therefor. Any action which has been inadvertently dismissed ex parte without any showing ought to be reinstated instanter upon the mere suggestion of counsel for the appellant or the order of dismissal itself considered as unauthorized and void. Here the appellant appealed within the time allowed by law, and, in addition to the usual necessary undertaking, gave a stay bond, which would protect the respondent in any judgment he may finally recover. He ought not to be denied the right to have his case heard and considered on appeal by reason of any delay of the court or clerk caused by press of business at Goldfield, nor by any erroneous order made without notice in his absence.
The case ought to be reinstated, and, unless respondent complies with the rule as every other party is required to do, and files a certificate and makes a proper showing of facts indicating that the delay has been caused by the appellant, and not by the judge or clerk of the district court, it ought to be set down for hearing and argument on its merits, and the contentions of the parties heard and their rights adjudicated by this court the same as those of other litigants on appeal. Until the judge signs the order from which the appeal is taken, if taken from an order, and in any case until the clerk makes up, certifies, and furnishes the appellant with the *160record, he cannot properly present his case here. Without having copies of the judgment or orders from which he appeals he would be liable to have the case dismissed, as was done in Kirman v. Johnson, 30 Nev. 146, because the order overruling the motion for a new trial had not been sent up by the clerk. This court has held at different times that, as the statute authorizes it to make rules not inconsistent with the Constitution and laws of the state for its own government and that of the district courts, such rules have the same force and effect as if they were incorporated in statutory provisions.(Haley v. Eureka County Bank, 20 Nev. 410.)
The order of dismissal, not being in compliance with any rule, statute, or practice, was clearly unauthorized. The court ought to observe its own rules, and it should not hesitate to correct any erroneous orders made in contravention of them. If there were any reasonable doubt regarding the question presented, it ought to be resolved in favor of reinstatement, to the end that the parties might be heard on the merits and their rights determined. The purpose of Rule 3 is to provide for the dismissal of cases where it is shown that the appellant has failed to take the proper steps to have the record brought to this court and is derelict on his part, but it was never intended to prevent any party from being heard on appeal because of the - delay of the judge or clerk below or of this court, when, as here, no undue delay is shown to have been caused by the appellant. It is said that the record has not yet been filed, but there is no showing that the appellant is in any way responsible for this, and he ought not to be held blamable for not filing it while his motion to reinstate remains undetermined by this court, nor denied reinstatement because it is not filed pending the consideration of his motion to have the case restored.
The refusal to reinstate may amount to a denial of a hearing to a party who appealed within the time allowed by the statute and who gave an undertaking, not only for the- costs of the appeal, but to pay the judgment, if it were affirmed by this court, when as far as shown he complied with every requirement, statute, decision, and rule by which he could be guided in taking the appeal and in moving to vacate the dis*161missal, which had been taken erroneously against him without notice or showing while he and his attorneys were absent in a distant part of the state. He did not file briefs within the time allowed him, but any delay in this regard was waived by respondent’s counsel when he appeared in this court on November 9th, and stated that his brief and appellant’s in answer thereto had been filed, and that he waived filing a further or reply brief for respondent, and asked that the motion to reinstate stand submitted. No brief ought to be required to enable this court to correct such a glaring error of its own as the dismissal of- the appeal. There is no rule directing that appellant would lose any right to have the case reinstated because 'of his delay in filing, or failure to file, a brief, and he ought not, by reason of such delay, have a punishment inflicted upon him of which he had no warning, and especially one so severe that it 'may result in the denial of his right to have the merits of his case presented to this court— a right which litigants do not lose by failing to file a brief on the merits within the time allowed them by rule.
Section 3 of Rule 11 provides that a failure by either party to file points and authorities or briefs on the merits within fifteen days after filing the transcript on appeal shall be deemed a waiver of the right to orally argue the case, and that the parties so failing shall not recover costs for printing or typewriting any brief. Even if this rule were applicable to a motion like the present one, the only penalty which it would impose upon the appellant for not filing his brief in 'time would be the loss of his right to argue orally or recover costs of printing or typewriting a brief. Ever since the abolition of ex post facto laws, the rule has been elementary as held by this court in common with others that penalties and forfeitures cannot be enforced unless they are clearly specified. The order giving a stated period in which to file a brief was a privilege, and did not designate any penalty, nor imply that, if it were not filed, plaintiff would lose any right to which he is clearly entitled, except to file a brief.
The order now made requiring the appellant within fifteen days to present in this court for filing the record on appeal with an affidavit of good faith is also contrary to the spirit, *162purpose,'and provisions of Rule 3, not only because it unjustly throws upon the appellant the burden not required by the rule of other litigants of showing that he is entitled to a hearing in this court after he has appealed, but the order may result in a denial of his right, if the judge or clerk, over the expedition of whose- work he has no control, fail upon further request to make up, sign and certify the record within that time. Rule 3 very properly allows appeals to be dismissed if there is undue delay by the. appellant, but is so guarded in its terms as to prevent a dismissal for delay caused by the court or clerk-for which the appellant is not to blame; but under the order of the court the appellant- here may be denied his appeal because there is delay for which he is in no way responsible.
On the congested calendar of the lower court in Esmeralda County hundreds of civil cases have waited for years to be reached. Although two new judges were appointed there last fall, a large number of these still remain undetermined. That county has now been taken away from the district of the judge who heard this case and who resides in another part of the state, and it has been reported that the clerk, was far behind in his work. Whether the minutes and orders in this case have ever been extended by him or finally approved and signed by the judge does not appear; and whether the clerk or judge have work or engagements which render it improbable that they can be prepared, certified, and signed within fifteen days is not shown.
The appeal ought not to be denied or endangered by any delay which is beyond appellant’s control. His constitutional right to have his case heard on the merits ought not to be lost or jeopardized by the mistake of this court.
The. cause ought to be reinstated', the parties heard, and their respective rights considered and determined, unless the respondent makes a proper showing under Rule 3 that there has been undue delay caused by the appellant which would warrant a dismissal.