Kingsbury v. Copren

3. Appeal and Error — Motion to Dismiss Appeal Not Taken in Time Should Be Sustained. Where an appeal from an order denying a motion for new trial was not taken within sixty days from entry thereof, as required by Itey.'Daws, 5329, as amended by Stats. 3933, c. 93, a motion to dismiss the appeal should be sustained. 2. Appeal and Error — Bill of Exceptions Not Settled and Allowed as Required by Eaw Should Be Stricken on Motion. A bill of exceptions not settled and allowed as required by law should be stricken on motion. 3. Appeal and Erroe — Supreme Court Need Not Determine whether Judgment against Defendant in Individual and Representative Capacities Was Right in either Capacity. Where judgment was improperly rendered against an executor in both his individual and representative capacities, the supreme court need not determine whether the judgment is right against defendant in either capacity. 4. Appeal and Error — Supreme Court Cannot Determine whether Judgment against Executor Was Right in Either Capacity, in Absence of Bill of Exceptions Containing Evidence. Where the bill of exceptions containing the evidence, was stricken, because not settled and allowed as required by law, the supreme court cannot determine whether a judgment improperly rendered against an executor in both liis representative and individual capacities was right against him in either capacity so as to authorize affirmance.

On petition for rehearing. The appeal was not taken within time allowed and hence should be dismissed. Rev. Laws, 5829, as amended Stats. 1913, p. 113; Winter v. Winter, 3 Nev. 129; Luke v. Coffee, 31 Nev. 165. The purported bill of exceptions was not settled nor certified to as required by law. Stats. 1919, c. 237, p. 440; Capurro v. Christensen, 46 Nev. 249; Rickey v. Douglas M. & M. Co., 45 Nev. 341. There is an exception to general rule that person cannot hold possession of personal property both as individual and administrator. Defendant made claim in representative capacity, while evidence showed that in his individual capacity he had taken property out of state and substituted inferior property instead. If we dismissed him in representative capacity, we would dismiss only person who claimed property and thereby would be out of court; if we dismissed him as individual, we would dismiss party actually in possession, and thereby we would have been relegated to acceptance of inferior substituted property. While party in possession is necessary in replevin, others having claim of interest may be joined. Rev. Laws, 4090; 34 Cyc. 1425; 23 R. C. L. 876. Even- if the defendant were not proper party in both capacities, the judgment should not be reversed. Harmless error should be disregarded. Rev. Laws, 5066. Defendant in individual capacity cannot object to his joinder in representative capacity. Party cannot object to misjoinder of another. 6 Stand. Pr. 855. One must show he is not proper party in capacity in which he is joined. 21 R. C. L. 312. The court did not determine, and we are unable to determine from its two decisions, in what capacity the appellant was misjoined. It is idle to discuss question of appeal from order denying motion for new trial. The opinion is manifestly founded on judgment roll, and has no bearing on evidence, errors, etc. Appellants were content to rely on appeal from judgment roll. Certainly no bill of exceptions is required in straight appeal from judgment. It would have availed respondent nothing if court had dismissed appeal from order denying new trial. The appeal from the judgment was still certainly intact. The court’s correcting inadvertence would not affect final decision. Amended complaint, which is part of judgment roll, shows defendant in two capacities. Verdict and judgment were against both individual and estate. This is illegal and anomalous. Amended, complaint does violence to law of replevin, and is uncertain and inconsistent. Specific property must be in possession of defendant at time replevin suit is brought. Kingsbury v. Copren, 43 Nev. 453. Defendant could not hold in both capacities. Nelson v. Smith, 42 Nev. 320. It appears defendant was charged personally with taking away property, yet counsel contends estate should be liable by suing defendant in representative capacity. It is impossible to determine what an amended complaint really means. The former decision in this, case, however, does not need rehearing to clarify its conclusions.