LUX VS. LUX (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

The appellant wife moved for allowances to enable her to prosecute an appeal from a June 20, 1949 judgment decreeing the respondent a divorce and from the same-day order denying her a new trial. She filed a notice of appeal on July 12, 1949, but never filed an undertaking on appeal. Under N.C.L. secs. 9385.61 and 9385.66, an appeal is perfected by notice of appeal plus an undertaking filed within five days (Lamb v. Lamb, 55 Nev. 437; Gerbig v. Gerbig, 60 Nev. 292); no appeal having been perfected, the court held it was without jurisdiction to order allowances, citing Cunningham v. Cunningham (on first motion for allowances), 60 Nev. 191, and denied the motion. The court (Badt, J.) separately condemned the respondent's attempt to interpose a motion to strike the appellant's motion, reiterating the rule of Lamb v. Lamb and Orleans Hornsilver Mining Co. v. Le Champ D'Or French Gold Mining Co., 52 Nev. 85, that a motion to strike a motion is bad practice, and struck from its record a group of papers 'without support, basis or foundation.'

In plain language

After a district court granted her husband a divorce and denied her a new trial, a wife asked the Nevada Supreme Court for allowances - money to enable her to pursue her appeal. But while she had filed a notice of appeal, she had never filed the required undertaking (a bond) within five days, which Nevada law required to 'perfect' an appeal. The supreme court held that because no appeal had been perfected, it had no jurisdiction to order any allowances, and denied the motion. The court also used the occasion to condemn a procedural tangle the lawyers had created: the husband had filed a motion to strike the wife's motion, a practice the court had repeatedly called 'bad practice' because it makes it impossible to tell which of several matters is actually being argued. The court struck the unsupported papers from its record.