Opinion of the Court-Hawley, C. J.

evidence tending to prove a survey, a marking of lines by blazing and felling trees, building a mill and other houses, cutting timber and wood and other acts of appropriate dominion. Whether this was sufficient to establish plaintiff's claim was for the jury, not the court, to decide." I think the judgment should be reversed.

[No. 731.]

AMBROSE GAUDETTE, RESPONDENT, v. WILLIAM C. GLISSAN, LOUIS SULTAN AND JOHN ROEDER, APPELLANTS.

WHEN APPEAL WILL BE DISMISSED.-When the appellant fails to furnish this court with a "notice of appeal" and "undertaking on appeal," as required by the statute, the appeal will be dismissed.

APPEAL from the District Court of the Seventh Judicial District, Lincoln County.

Pitzer & Croyland, for Appellants.

A. B. Hunt and George Goldthwaite, for Respondent.

By the Court, HAWLEY, C. J.:

The proceedings in this case, entitled as above, were instituted under the provisions of section 591 of the civil practice act (1 Comp. L., 1652), upon the motion of W. S. Travis, sheriff of Lincoln county. The appellants being the sureties upon an indemnifying bond given to said sheriff. After a hearing, the court rendered a judgment in favor of the respondent A. Gaudette, and against the appellants Glissan, Sultan and Roeder, for the amount recovered against the sheriff by the plaintiff in the suit of A. Gaudette v. W. S. Travis, ante, 149.

Upon an examination of the transcript on appeal, we are unable to find any notice of appeal given upon the part of the above-named appellants, or either of them. The statute provides that "any party aggrieved may appeal" in certain cases, and that "the party appealing shall be known as the

Opinion of the Court-Hawley, C. J.

(1

appellant, and the adverse party as the respondent.' Comp. L. 1390.) It is made the duty of the appellant to furnish this court "with a transcript of the notice of appeal," and if this is not done "the appeal may be dismissed." (1 Comp. L., 1401.)

The only notice of appeal contained in the transcript reads as follows:

"A. GAUDETTE, Plaintiff, v. W. S. TRAVIS, Defendant.

"You will please take notice that the defendant in the above-entitled action hereby appeals to the supreme court of this state from the judgment and orders therein made and entered in the said district court on the eleventh day of March, A. D. 1875, in favor of the plaintiff in said action, and against said defendant, and from the whole thereof.

"To the clerk of said district court, and George Goldthwaite, Esq., attorney for plaintiff."

No judgment has been rendered against Travis in this proceeding. The only judgment in the case was, upon the motion of said Travis, entered in favor of the plaintiff, A. Gaudette, and against Glissan, Sultan and Roeder, the sureties upon the indemnifying bond, and they have not taken any appeal.

Again: "To render an appeal effectual for any purpose, in any case, a written undertaking shall be executed on the part of the appellant." (1 Comp. L. 1402.) The appellants in this proceeding have not given any undertaking on appeal. The undertaking on appeal contained in the transcript is entitled the same as the notice of appeal in the suit of A. Gaudette, plaintiff, v. W. S. Travis, defendant, and recites that: "Whereas the defendant in the above-entitled action appeals * from a judgment entered against him in said action * * *. Now, therefore, * * * do undertake and promise on the part of the appellant that

* *

we

* *

Opinion of the Court-Hawley, C. J.

the said appellant will pay all damages and costs which may be awarded against him on the appeal."

The appellants in this proceeding having failed to furnish any notice of appeal or undertaking on appeal, as they were required to do by the above provisions of the statute, it follows that the appeal must be dismissed.

It is so ordered.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA,

JULY TERM, 1876.

[No. 749.]

H. P. PHILLIPS, RESPONDENT, v. WILLIAM WELCH ET AL., APPELLANTS.

JURISDICTION-QUESTION OF, RAISED BY THE COURT.-As every court is bound to know the limits of its own jurisdiction, it is the duty of the court to decide, in limine, the question of jurisdiction, although the parties before the court are willing to concede jurisdiction for the purpose of obtaining an opinion upon the matters in controversy. CONTEMPT OF COURT-WHEN PROCESS IS CIVIL.-If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such case is not punitive, but coercive.

IDEM WHEN PROCESS IS CRIMINAL.-If the contempt consists in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by a penalty of fine or imprisonment, or both, which is purely punitive.

IDEM APPELLATE JURISDICTION.--This court has no appellate jurisdiction in cases of contempt, where the proceeding is purely criminal.

APPEAL from the District Court of the Second Judicial District, Ormsby County.

The question of jurisdiction was not discussed by counsel. The facts are stated in the opinion.

DeLong & Belknap and John R. Kittrell, for Appellant.

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Opinion of the Court-Beatty, J.

Robert M. Clarke and R. S. Mesick, for Respondent.

By the Court, BEATTY, J.:

In the above-entitled action there was a final decree by which the waters flowing in King's cañon, in Ormsby county, were apportioned to the different parties, plaintiff and defendant, and each enjoined from diverting any portion of the waters awarded to the others. One of the defendants, E. D. Sweeney, was attached for an alleged violation of the decree, found guilty of a contempt of the court, and fined one hundred dollars. From that conviction he appeals to this court, entitling the case on appeal as above.

It was suggested to counsel, during the oral argument, that it was doubtful if this court had any jurisdiction in the matter, but the point was waived by the respondent (Phillips) at the time, and he has not adverted to it in his brief since filed. It has therefore become necessary for the court to decide, in limine, whether in a case like this, where the parties before the court are willing to concede jurisdiction for the purpose of obtaining our opinion upon the matters in controversy, we ought to raise the question of jurisdiction ourselves.

Upon due consideration we are satisfied we ought to do so. Every court is bound to know the limits of its own jurisdiction, and to keep within them. It is very true that the question of jurisdiction is often difficult of solution, and that argument of counsel is as essential to its proper determination as it is in any other class of questions; but we are nevertheless of the opinion that when a doubt is suggested as to our authority to decide a cause, if counsel decline to argue the point, we are bound to determine it without the aid of argument. Especially is this our duty where all the parties to be affected by our decision are not before us. In this case the state is an interested party, since the fine imposed upon Sweeney is payable to the state; and if consent could in any case confer jurisdiction, we are not permitted to assume it here, because the state is not represented upon this appeal, and has not consented to submit her rights to our decision.