Sorge v. Sierra Auto Supply Co.

On Petition for Rehearing

Price & Hawkins, for Appellants:

By the Court,

Coleman, J.:

A petition for rehearing has been presented by the respondent. He makes two points: First, that the court erred in its conclusion as to the $4,000 mortgage; and, second, assuming that no error was committed in the respect mentioned, the order made was not justified. As to the first proposition urged, we are altogether satisfied with what was said in the opinion.

There is no greater merit in the other contention than in the one just disposed of, but counsel has argued it at great length in his petition, and we will endeavor briefly to clarify the matter. His point is that, since the court, in rendering the judgment, did so for a lump sum, instead of apportioning a certain amount for services in foreclosing the $20,000 mortgage, and an amount for the $4,000 mortgage, “if there is any evidence to support the judgment it will not be reversed upon appeal,” citing to support this contention Jones v. West End M. Co., 36 Nev. 149, 134 Pac. 104, and Jensen v. Pradere, 39 Nev. 466, 159 Pac. 54. We do not think either of the cases bear out the contention. The evidence in the cases mentioned was conflicting, and this court refused to disturb the judgment because there was substantial evidence to support it. But if the decisions sustained the contention made in the quoted matter, they would not apply to the situation in hand wherein we held, in substance, that one of the causes’ of action as to the attorney’s fees was not established by the evidence, the mortgage not having been Authorized.

*224It is further contended that, since the judgment was for a lump sum, the appeal being from the judgment as an entirety, we had no authority to order a modification, even though the $4,000 mortgage was never authorized by the corporation. This court, in State v. C. P. R. R. Co., 21 Nev. 172, 26 Pac. 225, held:

“A party may appeal from the whole or any part of a judgment (Gen. Stat. 3353; Hayne, New Trials & App. 185); and upon the hearing of an appeal, the supreme court may reverse, affirm, or modify a judgment, or affirm it as to some issues and reverse as to others (Gen. Stat. 3361; Hayne, New Trials & App. 295).”

See, also, section 5359 of the Revised Laws.

It is ordered that the petition be denied.