On Petition for Rehearing
By the Court,
Coleman, J.:A petition for rehearing has been filed herein.
1. It is first contended that no motion to dismiss was made. The exact fact is that notice of motion was served upon counsel for appellants, and at the time stated therein counsel for the state and for appellants appeared. No formal motion was made, but the matter was argued and submitted as though such a motion had been made. Such is the usual practice. The objection now urged does not go to the merits of the matter argued upon the hearing. Counsel cannot now contend that there was no motion. If they had desired to urge this point, they should have done so at the time of the hearing. They did not do so, and cannot now complain of their oversight. They waived the point now made by failing to raise it upon the hearing and by participating in the argument. 28 Cyc. 7, 9, 10.
2. It is said, also, that neither briefs nor points and authorities are necessary when the transcript of the entire trial is made the bill of exceptions. This is, indeed, a startling contention. What are attorneys for, if not to point out the alleged errors of the trial court? *244This court, in State v. Milosovich, 42 Nev. 273, 175 Pac. 139, held that it would not comb the record to ascertain the matter urged as reversible error. If we were right in the view then expressed, as we think we were, we know of no sound reason for now holding substantially to the contrary.
It is contended, further, that our position, to the effect that the judgment should be affirmed for lack of appearance, is not supported by the cases cited in our opinion, for the reason that “no appearance whatever was made by the appellant” in those cases, while appearance was made in the instant case. Prior to service of notice of motion to dismiss, the only appearance in this case was to ask for further time. This is not an appearance such as is contemplated by the statute. The appearance contemplated by the statute is one wherein it is sought to point out some error committed by the trial court. Prior to the time the right to do so had been cut off, nothing of that nature was done in this case.
Our attention is directed to what is termed the discretionary language of the statute (Rev. Laws, 7299), providing that judgment of affirmance may be granted without argument if appellant fail to appear. There is nothing in said statute to sustain the petition for rehearing. Counsel for appellant obtained several extensions of time in which to file their brief. On the day the last extension was granted they appeared in open court and asked for ten days further time. They were granted five days, whereupon they assured the court that the brief would be filed within the time allowed by the court. They failed to comply with the assurance given the court; in fact, no brief had been filed twenty-three days thereafter, when the state moved'to affirm the judgment.
We do not deem further consideration of the petition necessary. We cannot see that the court was not justified in the order heretofore entered in the case.
The petition is denied.