Shirk v. Palmer

OPINION This case was orally argued on September 9th. At the conclusion of the argument, counsel for appellant asked leave to file a supplemental brief, which was granted. In due time after the filing and service of this brief, counsel for the respondent gave notice of motion to strike it from the files upon the ground that it makes the point that the complaint in the case does not state facts sufficient to constitute a cause of action — an alleged error not assigned in the original brief.

1. The law of this state, pertaining to the practice in cases appealed to this court, has long required the specification by the appellant of the errors relied upon as a ground for the reversal of the judgment. Stats. 1919, p. 55, sec. 2; Gardner v. Pacific Power Co., 40 Nev. 343, 163 P. 731, and Stats. 1923, p. 164, c. 97, sec. 3, make no substantial change, except in the time and manner of assigning error.

Suffice it to say that it has been held repeatedly that there need be no formal error assigned, when the appeal is upon the judgment roll alone. Miller v. Walser, 42 Nev. 497, 181 P. 437; Page v. Walser, 43 Nev. 422, 187 P. 509.

2. This case is now before us on the judgment roll alone, and there need have been no assignment of error to enable the court to consider the point now urged. It was presented on oral argument, and the purpose of the brief was to amplify that argument.

Motion denied.