a misjoinder of parties plaintiff, and that they had no joint or common interest in the subject-matter or in the damages or relief sought to be recovered, that several causes of action had been improperly joined, and that the alleged causes of action of the several plaintiffs were independent, was sustained by the court. An amended complaint was filed, naming Smith alone as plaintiff, alleging that he was the owner of the same lots and water as claimed by him in the first complaint, and that he was entitled to have it flow through the S. O. Wells ditch to his premises, and alleging, as before, that it had been filled up and the water diverted by the defendant, and special damages to him for the same cause and in the same amount as in the original complaint and general damages for the same diversion in a different amount. He demanded to have the title quieted to the water and water rights, ditch and ditch rights, and privileges belonging and appurtenant to his lands and premises, and for damages, costs, and general relief. The defendant filed a demurrer to the amended complaint, which was sustained, and moved to have it stricken from the files, on the ground that it was an attempt to change the parties mentioned in the original complaint and the nature of the original complaint of which it purported to be an amendment. This motion was granted by the court. The transcript on appeal, in two volumes, one designated "Plaintiff's and Appellant's Affidavit on Appeal," and the other without designation, were filed in this court on the 26th day of February, 1907, and the appellant's brief was filed on the same day. On April 10th respondent's brief was filed in this court, and therein it was asked that the appeal herein be dismissed upon the ground that the record is not in the form required by law. On April 11th appellant filed notice of a motion to have respondent's brief stricken from the files because it was not filed within the time required by rule 11 of this court (73 Pac. xiv). Accordingly two questions are suggestedwhether the record is properly certified, and whether the respondent has waived its right to have the appeal dismissed if the certification is defective, at least one of which it is essential to determine.

In the volume of the transcript marked "Plaintiff's and Appellant's Affidavit on Appeal" copies of papers and proceedings of the court are set out and stated in the form of an affidavit by the plaintiff, followed by a certificate of the district judge that "the foregoing is the plaintiff's original affidavit on appeal and identified as such," and by the certificate of the county clerk of similar effect. The other and undesignated volume of the transcript seems to contain original papers which are followed by the certificate of the clerk, certifying that it contained all of the original files and papers, excepting the affidavit on appeal, including the original judgment roll, original complaint, amended complaint,

demurrers, and other papers. There was no certificate by the judge that the statement had been allowed and was correct, such as is usually attached to statements on appeal. In the absence of any waiver of objections, the affidavit made by the appellant setting out the proceedings of the court would be insufficient, as stated in Hart v. Spencer, 29 Nev., 89 Pac. 289. As has been held by this court, the methods of taking appeals are matters of purely statutory regulation. Burbank v. Rivers, 20 Nev. 81, 16 Pac. 430. By analogy only bills of exception properly settled and signed by the judge and records complying with the statute will be considered. State v. Mills, 12 Nev. 403; State v. Rover, 13 Nev. 17; State v. Wilson, 5 Nev. 43; State v. Ah Mook, 12 Nev. 369. Following this rule, the court has refused to receive affidavits to show irregularities or proceedings not regularly certified. State v. Baker, 8 Nev. 141; State v. McMahon, 17 Nev. 365, 30 Pac. 1000; State v. Larkin, 11 Nev. 314; State v. Roderigas, 7 Nev. 328; State v. McLane, 15 Nev. 345. Under rule 11, respondent is required to file and serve his points and authorities or brief within 15 days after the service of appellant's brief, and a failure by either party to file his brief within the time provided is deemed a waiver of the right to orally argue the case or to recover certain costs, and under rule 8 exceptions or objections to the statement or transcript must be taken at the first term after the transcript is filed, and must be noted in the written or printed points of respondent and filed at least one day before the argument, or they will not be regarded. On April 1st, without making any reservation, respondent obtained an order allowing it 10 days within which to file its brief, and this and the fact that it failed to file its brief or make any motion to dismiss the appeal within 15 days after the filing of appel lant's brief we deem to be a waiver of its right to make the objections offered to the transcript. Johnson v. Wells, 6 Nev. 224, 3 Am. Rep. 245; Truckee Lodge v. Wood, 14 Nev. 293. The notice and undertaking on appeal are in proper form, duly certified by the clerk. If the order from which the appeal is taken were not included in the record, its omission would be fatal and could not be waived; but the same conclusion and result does not follow because there is an irregularity in the manner or form of certification of the order by reason of its presence nere attached to the specification of error under an affidavit, a well-recognized method of proof in general practice, to which is attached the certificate of the clerk and district judge that it is appellant's "Affidavit on Appeal," instead of under a certificate following the language of the statute.

This case may may be distinguished from Marx v. Lewis, 24 Nev. 306, 53 Pac. 600, in that the defect in the certification here is not as vital as the question involved there relating to the absence of any notice or bond

on appeal. If an inference may be drawn from the dicta in that case that no defects in the record can be waived, it would be opposed to these decisions of this court in 6 and 14 Nev., but more directly it is in conflict with the opinions of the Supreme Court of the United States and other courts holding that the lack of an undertaking on appeal and other omissions and irregularities may be waived. Kingsbury v. Buckner, 134 U. S. 650, 10 Sup. Ct. 638, 33 L. Ed. 1047: Michel v. Meyer. 27 La. Ann. 173; Weidner v. Matthews, 11 Pa. 336; Gardner v. Investment Co., 129 Cal. 528, 62 Pac. 110; Thompson v. Lea, 28 Ala. 453; Wheeler v. Burlingham, 137 Mass. 581; Ross v. Tedder, 10 Ga. 426; Howth v. Shumard (Tex. Civ. App.) 40 S. W. 1079; Hoagland v. Hoagland. 18 Utah, 304, 54 Pac. 978; Kirkpatrick v. Cooper, 89 Ill. 210; Pace v. Lanier, 25 Fla. 558, 6 South. 262; Engle v. Rowan (Tex. Civ. App.) 48 S. W. 757; Norris v. Monroe. 128 Mass. 386: Bolton v. McKinley, 19 Ill. 404; Wilson v. Kelly, 81 Pa. 411; 2 Enc. P. & P. 348; 2 Cyc. 882. and cases there cited.

Apparently there was no attempt to serve or file the record as a statement on appeal under section 332 of the practice act (Comp. Laws. § 3427), which provides that, when the party who has a right of appeal wishes a statement of the case to be annexed to the record of the judgment or order, he should prepare and file such statement and serve a copy thereof on the adverse party, who may file proposed amendments thereto, which may be settled and certified by the judge. It would seem that. instead of following these provisions, plaintiff intended to proceed under section 337, which provides that the sections to which we have referred "shall not apply to appeals taken from an order made upon affidavit filed, but such affidavit shall he annexed to the order in the place of the statement mentioned in those sections." The language quoted was not intended to authorize the filing of records on appeal set out and supported by an affidavit made after the order of the lower court and filed here for the purpose of showing its proceedings, but rather to allow a simple method for bringing into this court for review orders of the district court made upon affidavits filed therein previous to the making of such orders by filing as the record on appeal copies of such orders attached to the affidavits on which they were based, supported by the proper certificate of the clerk. However, it being conceded that the record is not sufficient as a statement on appeal as distinguished from a transcript. if there were doubt as to objections to the record being waived because they were not presented in time, it might be claimed that the order in the lower court by analogy was made upon affidavit because it was based upon the complaint and amended complaint, both of which were verified, but more properly be said that the order dis

missing the complaint was in the nature of a final judgment which might be reviewed on the judgment roll and papers certified here by the clerk. The practice act distinguishes between the methods of certification of statements and of transcripts on appeal. Irwin v. Samson, 10 Nev. 282; Ry. Co. v. Johnson, 7 Wash. 97, 34 l'ac. 567. Section 335 provides: "The statement, when settled by the judge or referee, shall be signed by him, with his certificate that the same has been allowed and is correct. When the statement is agreed upon by the parties, they or their attorneys shall sign the same, with their certificate that it has been agreed upon by them and is correct." Section 340 provides: "On an appeal from a final judgment, the appellant shall furnish the court with a transcript of the notice of appeal, and the statement, if there be one, certified by the respective attorneys of the parties to the appeal, or by the clerk of the court. On an appeal from a judgment rendered on an appeal, or from an order, the appellant shall furnish the court with a copy of the notice of appeal, the judgment or order appealed from, and a copy of the papers used on the hearing in the court below, such copies to be certified in like manner to be correct." The amended complaint did not add any new cause of action or a new party, as was attempted to be done in the cases cited by the respondent. The allegations of the amended complaint relate only to property, acts, and matters set out in the original complaint. Both demanded damages and general relief. The fact that the damages are not asked in the same amount in the different paragraphs is nothing unusual in amended complaints. The prayer in the amended complaint that the title be quieted is controlled by the allegations which were similar in both so far as the plaintiff Smith is concerned. The court could grant any relief consistent with these allegations or with those in an answer. A part of the plaintiffs and the allegations on their behalf relating to damages, which it had been held by the court on demurrer could not be joined, were omitted in the amended complaint apparently for the purpose of bringing it within the order of the court sustaining the demurrer. Section 68 of the practice act provides, that "the court may, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party." and section 71 that "the court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties."

As all the papers on which the court acted are before us under proper certification, and its order with them under affidavit and certification of the clerk and district judge, which do not comply with the statute, we think the latter defects should be deemed waived because no objection to them, or mo

tion to dismiss the appeal, was made within 15 days as required by the rule, nor for more than 40 days after the filing of the transcript and appellant's brief. nor until after respondent had without reservation applied for additional time in which to file its brief, and, as the complaint states a good cause of action, we believe it is better that this technicality be so considered and disregarded, to the end that a trial may be had and the rights of the parties more speedily determined.

The order dismissing the amended complaint is reversed, and the district court will allow the defendant a reasonable time in which to answer.

SWEENEY, J., concurs.

NORCROSS. J. (dissenting). Conceding, for the purposes of this case, that respondent's motion to dismiss the appeal was not filed in time, and, for that reason, such motion cannot be considered, nevertheless I think the record in this case requires a dismissal of the appeal upon the court's own motion. What the appellant designates as his "Affidavit on Appeal" is something unknown to our practice, and is not authorized by any possible construction of our civil practice act. Hart v. Spencer, 29 Nev.

- 89 Pac. 289. That counsel filed his socalled "Affidavit on Appeal" under a misconception of our statute is clear. While I concede that defects and irregularities in the matter of an appeal, otherwise regular, may be waived, I do not regard the present appeal in such a condition. The so-called "Affidavit on Appeal," having no authorization in law, is, in my opinion, a nullity and cannot be considered for any purpose. As the other volume of the record, taken alone, does not present anything for the court's consideration, I think the appeal should be dismissed.

(13 Idaho, 534)

FINNEY v. AMERICAN BONDING CO. (Supreme Court of Idaho. July 30, 1907.) On petition for rehearing. Denied. For former opinion, see 90 Pac. 859. Neal & Kinyon and J. T. Morrison, for appellant. Frank J. Smith and W. E. Borah, for respondent.

SULLIVAN, J. This case was dismissed on the motion of the respondent at the May, 1907, term of this court, on the ground that the transcript on appeal was not filed and served in the time provided by paragraph 9 of rule 27 of the rules of this court (32 Pac. v). The facts in the case, so far as the decision on the motion is concerned, are suffi- | ciently stated in the opinion on the motion. 90 Pac. 859.

the appellant that the court has misapprehended the facts and misapplied the law which ought to obtain on those facts. It is contended that, during all the time that the case was pending in the United States court, the proceedings in the state court were coram non judice and void; and counsel for appellant cite McIver v. Florida Central & P. R. Co., 65 L. R. A. 437, 110 Ga. 223, 36 S. E. 775, and Kern v. Huidekoper, 103 U. S. 485, 26 L. Ed. 354. In the last case above cited it is held that a proper removal of the cause from a state court to a United States court divests the state court of jurisdiction; but in the case at bar the Circuit Court of Appeals held that the United States court had acquired no jurisdiction by the attempted removal, and hence the removal was not a proper one. Aside from that, counsel for appellant appeared in the state court after the attempted removal, tried the case there, and, after judgment had been rendered against the appellant, attempted to take an appeal to this court by serving notice of appeal and filing an appeal bond, and thereafter did nothing further in the matter for about two years. They made no application to this court for an extension of time in which to serve and file their transcript on appeal. They cannot be permitted to blow both hot and cold in this matter. They contend in one breath that the state court had no jurisdiction, and again they claim that they took a valid appeal from the judgment of the state court during the very time that they now contend the state court had no jurisdiction of the case. If the state court had no jurisdiction, they, of course, could take no valid appeal from any judgment rendered by it; but, as we view it, their appeal was a valid appeal, because the case had not been properly removed.

Having neglected and failed to comply with the rules in filing their transcript and in pressing their appeal for more than two years after the appeal was taken, and having utterly failed to comply with the rules of this court in preparing, serving, and filing their transcript on appeal, the petition for a rehearing must be denied; and it is so ordered.

the appellate court is rendered in a criminal case, it must be entered in the minutes, and a certified copy of the entry forthwith remitted to the clerk of the court from which the appeal was taken. It would seem clear from the provisions of that section that the appellate court does not retain jurisdiction in criminal cases after the judgment is entered and a certified copy thereof remitted to the trial court; for, after the remittitur goes down, the general rule is that the appellate court has no further jurisdiction. However, we have gone through the petition for rehearing, and have concluded that a rehearing ought not to be granted, even if this court still had jurisdiction to hear such petition.

It is urged in the petition that the court misapprehended the facts in the case: that in the original opinion the court assumed that the prosecutrix went boat riding with the appellant, when according to the evidence she went with Macbeth. It is admitted in the petition that the statement in the transcript leaves it somewhat ambiguous, at first impression, as to which person went boat riding with the prosecutrix. It is clear, at any rate, that she went boat riding with Macbeth. The defendant testified that his arms were lame from rowing the boat; but, conceding that the defendant did not take the prosecutrix boat riding, it makes no difference. The evidence is amply sufficient to sustain the verdict of the jury.

As to whether there were scratches upon the defendant's face, there is a conflict in the evidence, and the jury, no doubt, passed upon that question. As to whether the parties locked arms, the defendant testified that he took hold of the prosecutrix's arm, and they went outside and walked over to the barn, where the mules were standing. The evidence also shows that they had their arms partly around each other. We have gone carefully through the petition for rehearing upon the other points suggested, and are satisfied that, if this court had power to grant a rehearing. the showing is not sufficient in this case: and the petition for a rehearing must be denied.

the certificate were not less than those of California at the time such certificate was presented for registration to the California board. Held, that certificates or licenses to practice medicine and surgery granted by the board of examiners of the District of Columbia and the state of Indiana, in the absence of proof that the requirements of such boards were not less than those of California at the time the certificates were presented for registration. were insufficient to entitle the applicant to a license in California.

2. MANDAMUS-BURDEN OF PROOF.

On an application for mandamus against a medical board to compel petitioner's registration as a physician and surgeon within the state, the burden is on the petitioner to prove such material allegations on behalf of his claim as are denied by the answer.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33. Mandamus, § 372.] 3. CONSTITUTIONAL

LAW-DELEGATION

LEGISLATIVE POWER.

OF

St. 1901, p. 56, c. 51, authorizes the state medical board to accept from an applicant for registration as a physician and surgeon only such a diploma as is issued by some legally chartered medical school, the requirements of which shall have been at the time of granting the diploma in no particular less than those prescribed by the Association of American Medical Colleges for that year, was not void as an improper delegation of legislative power.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 99.]

4. PHYSICIANS AND SURGEONS-LICENSE -QUALIFICATIONS-PROOF.

St. 1901, p. 56, c. 51. authorizing issuance of licenses to practice medicine within the state, declares that, when any applicant has shown himself possessed of the qualifications required "and" has successfully passed the examination by the board, the certificate must be issued, etc.; and section 5 (page 57) requires the production of the diploma issued by some legally chartered medical school, the requirements of which shall have been in no particular less than those prescribed by the Association of American Medical Colleges of that year, or satisfactory evidence of having possessed such diploma or a license from a legally constituted institution granting medical and surgical licenses only on actual examination or satisfactory evidence as having possessed such a license. Held, that such act required both a diploma or license and an examination by the board.

In Bank. Application by James T. Arwine for writ of mandamus against the board of medical examiners of the state of California and the members of the board, etc. An order was entered granting the relief prayed by the District Court of Appeal, and the case was transferred to the Supreme Court for hearing in bank. Writ denied.

Wallace W. Wideman and Benjamin P. Welch, for plaintiff. William C. Tait, George B. Becke, and Charles S. Wheeler (J. F. Bowie. of counsel). for defendants.

ANGELLOTTI. J. This is an application for a writ of mandamus directed to the defendants requiring them to issue to the plaintiff a certificate to practice medicine and surgery in the state of California. The application was originally made to the District Court of Appeal for the Second District. The matter was submitted for decision to

that court upon the affidavits filed by plaintiff at the institution of the proceeding and the verified answer of the defendants thereto. That court gave judgment for plaintiff, directing the issuance of the writ as prayed. In its opinion that court found as a fact that plaintiff had successfully passed the examination required by the provisions of the act for the regulation of the practice of medicine and surgery. St. 1901, p. 56, c. 51. On petition for a hearing in this court, an order was made by us vacating such judgment and directing that the proceeding be heard and determined by this court. The matter has now been submitted to us for decision, as it was to the District Court of Appeal, upon the affidavits and answer, and the stipulation of counsel for defendants, made upon the oral argument, that as to the facts of the case the opinion of the District Court of Appeal may be accepted as correct.

The right of the plaintiff to the certificate sought by him was dependent upon his compliance with the provisions of the act already referred to. That act required that, in order to procure such certificate, he must produce before the board of medical examiners, in addition to satisfactory testimonials of good moral character, a "diploma issued by some legally chartered medical school, the requirements of which medical school shall have been at the time of granting such diploma, in no particular less than those prescribed by the Association of American Medical Colleges for that year, or satisfactory evidence of having possessed such a diploma, or a license from some legally constituted institution which grants medical and surgical licenses only upon actual examination, or satisfactory evidence of having possessed such a license." It further required that, in addition to the presentation of such credentials, the applicant must be personally examined by such board of medical examiners and successfully pass such examination. It further provided that such board might, in its discretion, accept and register, without examination of the applicant, any certificate which shall have been issued to the applicant by the medical examining board of the District of Columbia or any state or territory of the United States, provided that the legal requirements of such medical examining board shall have been, at the time of issuing such certificate, in no degree or particular less than those of California at the time when such certificate shall be presented for registration to the board created by this act. Sections 5, 6, pp. 57, 59, of said act. The affidavits filed by plaintiff in instituting this proceeding contained allegations showing a sufficient compliance with these provisions to entitle him to a certificate. These allegations were denied by the answer in two material matters, viz.: As to the sufficiency of the credentials presented

by him with his application for a certificate, and as to the satisfactory character of his examination as to qualifications.

Upon the question as to the satisfactory character of the examination, we shall assume that the issue must be determined in favor of plaintiff under the stipulation of defendants' counsel as to the effect to be given to the opinion of the District Court of Appeal relating to the facts of the case. In this regard, the ultimate fact was as to whether or not the plaintiff had successfully passed the examination, and the District Court of Appeal explicitly found "that the plaintiff's examination was successful."

In the matter of credentials, the only documents alleged by the affidavits to have been produced to the board of medical examiners were, first, a diploma issued to plaintiff from the medical department of the University of the South at Sewannee, Tenn., which was alleged to be a legally chartered medical school, the requirements of which at the time of granting the diploma were in no material particular less than those prescribed by the Association of American Medical Colleges for that year; and, second, certificates or licenses to practice medicine and surgery granted by the boards of examiners of the District of Columbia and the state of Indiana. As to the latter, it was not alleged nor does it otherwise appear that either of such boards granted licenses "only upon actual examination," or that the legal requirements of either of said boards were, at the time it issued the certificate, in no degree or particular less than those of California at the time when such certificates were presented for registration. So far as the record before us shows, these certificates were, therefore, insufficient under the requirements of the act, and could not authorize the granting of a license by defendants.

Concerning the diploma from the medical department of the University of the South, the allegations as to the requirements of the school were such, as we have seen, as to require acceptance of the diploma issued to plaintiff as satisfactory, viz., that those requirements were in no particular less than those prescribed by the Association of American Medical Colleges for that year. This allegation is, however, denied by defendants in their answer. The issue of fact thus made was not determined by the District Court of Appeals; that court saying in its opinion that upon the evidence before it that question of fact could not be determined. That opinion does not state any evidence which enables us to determine this question, and no evidence was introduced before us upon the issue. The burden is, of course, upon the plaintiff, in a proceeding of this character, to prove such material allegations in behalf of his claim as are denied by the answer.