SMITH VS. SMITH (DIVORCE)

Key holdings

Practitioner summary

The husband obtained a divorce on a jury verdict (verdict June 22, 1950; judgment entered June 23, 1950). The wife's notice of appeal was filed August 20, 1951. The court addressed three motions by the respondent. (1) Motion to dismiss the appeal from the judgment as untimely: the wife argued the six-month appeal period never began because the judgment was non-final (no costs provision, equitable suit), attempting to treat it as final enough to appeal but not final enough to start the appeal time. The court held that a judgment sufficiently existent and final to support an appeal is sufficiently final to start the time to appeal; and a written divorce judgment making no provision for costs - costs being discretionary under sec. 8927, N.C.L. - reflects an exercise of discretion not to allow costs and is final. Distinguishing Dillon v. Dillon, 67 Nev. 428, 220 P.2d 213 (which held only the oral pronouncement non-final because discretion as to costs remained until the formal judgment), the court held the appeal from the judgment untimely and dismissed it. (2) Motion to strike the wife's affidavit from the record on appeal: because the appeal from the post-judgment order required the district court to reconsider the entire trial record, it was not an 'order made upon affidavits' within sec. 9385.89, N.C.L.; the affidavit, not incorporated in a settled bill of exceptions, was stricken (citing Padilla v. Mason, 53 Nev. 269). (3) With the affidavit stricken, the appeal from the order denying the motion to vacate stood unsupported and was dismissed.

In plain language

A husband won a divorce after a jury verdict; judgment was entered on June 23, 1950. His wife did not file her notice of appeal until August 20, 1951 - well beyond the six-month deadline. She argued the deadline never started running because, she said, the judgment was defective and not truly final (partly because it did not mention costs and the case was equitable). In effect she tried to argue that the judgment was final enough to appeal from but not final enough to start the appeal clock. The Nevada Supreme Court rejected that. If a judgment is final enough to support an appeal, it is final enough to start the time for taking that appeal. A written divorce judgment that says nothing about costs - where costs are discretionary - simply reflects a decision not to award costs and is final. Because the appeal from the judgment was late, it had to be dismissed. The wife had also appealed a later order refusing to set aside the verdict and judgment, and she relied on her own affidavit in the record. But her appeal required the court to reconsider the whole trial record, so the record had to be presented through a properly settled 'bill of exceptions.' Because her affidavit was not part of such a bill, the court struck it; and with the affidavit gone, the appeal from that order had no support and was also dismissed.