Nevada Reports 1908 (30 Nev.).pdf

7/28/2019 Nevada Reports 1908 (30 Nev.).pdf

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30 Nev. 1, 1 (1908)

RULES OF THE BOARD OF PARDONS.

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1. The regular meetings of the board shall be held on the Wednesday after the first

Monday in January, and on the second Monday of July of each year.As amended, January,

1906.

2. Special meetings may be called by the governor at any time when the exigencies of any

case demand it, notice thereof being given to each member of the board.

3. No application for the remission of a fine or forfeiture, or for a commutation ofsentence, or pardon, shall be considered by the board unless presented in the form and manner

required by the law of the state approved February 20, 1875.

4. In every case where the applicant has been confined in the state prison, he or she must

procure a written certificate of his or her conduct during such confinement, from the warden

of said prison, and file the same with the secretary of this board, on or before the day of

hearing.

5. All oral testimony offered upon the hearing of any case must be presented under oath,

unless otherwise directed by a majority of the board.

6. Action by the board upon every case shall be in private, unless otherwise ordered by the

consent of all the members present.

7. After a case has once been acted upon, and the relief asked for has been refused, it shall

not, within twelve months thereafter, be again taken up or considered upon any of the grounds

specified in the application under consideration, except by the consent of a majority of the

members of the board; nor in any case except upon new and regular notice as required by law

in case of original application.

8. In voting upon any application the roll of members shall be called by the secretary of

the board in the following order:

FirstThe Attorney-General.

SecondThe Junior Associate Justice of the Supreme Court.

ThirdThe Senior Associate Justice.

FourthThe Chief Justice.FifthThe Governor.

30 Nev. 1, 2 (1908) Rules of Board of Pardons


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Each member, when his name is called, shall declare his vote for or against the

remission of the fine or forfeiture, commutation of sentence, pardon, or restoration to

citizenship.

9. No document relating to a pending application for pardon or commutation of sentence,

or to a prior application which has been denied, shall be withdrawn from the custody of the

clerk after filing, unless by consent of the board.10. Application for pardon or commutation of sentence must be filed with the clerk at

least two days before the regular meeting of the board, at which the application is to be

considered.

11. All papers pertaining to applications for pardon, or for restoration to citizenship, must

be properly indorsed before presentation for filing; and the name of the attorney for the

applicant must appear in such indorsement on the petition and notices to the district judge and

district attorney. The indorsement on each paper must begin at the top with Board of

Pardons, and include the name of the document.

12. Attorneys shall first present their evidence through witnesses, affidavits, the record or

documents, and then argue their cases concisely and not exceeding one-half hour for each

counsel appearing, unless additional time be granted by the board, and in the event that anattorney digresses from the evidence, or states facts not supported thereby, or reiterates in his

argument, he shall be called to order. Papers shall be filed separately, or attached before they

are read in evidence, and shall not be withdrawn without the order of the board or some

member thereof.

13. Upon behalf of an applicant for pardon who has been convicted of felony, evidence of

facts relating to the commission of the crime other than that contained in the record, may be

presented only by witnesses, who know the circumstances, appearing and testifying under

oath, or by depositions or affidavits, copies of which shall have been served upon the district

judge and district attorney of the county in which the indictment was found, at least thirty

days before the hearing, unless, for good cause shown, this time be shortened by the board.

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30 Nev. 3, 3 (1908) State Library Regulations

NEVADA STATE LIBRARY.

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Sections of the Law Relating to Use of Books.

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From Compiled Laws of 1900.


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Sec. 1518. The state librarian shall keep a register of all books, magazines, papers,

pamphlets, maps, charts, and other property added to the library, and of the cost thereof, and

shall stamp the same with the library seal. He shall keep a register of all books taken from the

library, when taken out, by whom, and when returned. He shall not permit any person or

persons, except such as are authorized by law, to take from the library any book, magazine,paper, or other property belonging thereto.

Sec. 1522. Upon assuming the duties of his office the secretary of state, as ex officio state

librarian, shall execute a receipt and deliver the same to the justices of the supreme court for

all books and other property in the state library.

Sec. 1523. All books, maps, and charts, now belonging to, or which may hereafter come

into possession of this state, by purchase or otherwise; all books, maps, charts, pamphlets,

and other documents, which, by any state officer, may be received in their [his] official

capacity from the general government, or in exchange from other states and territories, or

received from foreign nations, or donated to the state by any person or corporation, shall be

placed in the state library, and shall be carefully preserved by the librarian.

Sec. 1525. Books may be taken from the state library by the members of the legislatureduring its session, and at any time by the governor and other officers of the executive

department of this state who are required to keep their offices at the seat of government, the

justices of the supreme court, and attorney-general;provided, that no person shall be

permitted to have more than two volumes of miscellaneous works from said library at the

same time.

30 Nev. 3, 4 (1908) State Library Regulations

Sec. 1526. The librarian shall cause to be kept a register of all the books issued and

returned at the time they shall be so issued and returned, and none of the books, except the

laws, journals and reports of this state, which may be taken from the library by members of

the legislature, during the session, and law books taken by the judges of the supreme court,

shall be retained more than two weeks; and all books taken by the members of the legislature

shall be returned at the close of the session.

Sec. 1527. If any person materially injure, or fail to return any books taken from the

library within the time prescribed in the foregoing section, he shall forfeit and pay to the

librarian, for the benefit of the library, three times the value thereof, or of the set to which it

belongs.

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30 Nev. 5, 5 (1908) Rules of State Library


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RULES OF STATE LIBRARY.

____________

The number of users of the library is so small under the law that it has not heretofore been

considered necessary by those in charge to publish any rules in addition to those included in

the statute.

The office hours are from 10 to 12 o'clock in the morning, and from 1 to 4 in the

afternoon, on judicial days.

Those using books, except members of the supreme court, are requested notto replace

them on the shelves.

Books are not allowed to be taken beyond the limits of the capital city.

Books of reference, including law and miscellaneous, art works and unbound magazines,

are not to be taken from the library.The use of the library is extended to attorneys practicing before the supreme and district

courts, when in the capital city.

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30 Nev. 7, 7 (1908) Rules of Supreme Court

RULES

OF THE

Supreme Court of the State of Nevada

Adopted September 1, 1879; as amended to July 7, 1908.

___________

RULE I.

1. Applicants for license to practice as attorneys and counselors will be examined in open

court on the first day of the term.

Examination for Attorneys-at-Law.

2. The supreme court, upon application of the district judge of any judicial district, will


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appoint a committee to examine persons applying for admission to practice as attorneys and

counselors-at-law. Such committee will consist of the district judge and at least two attorneys

resident of the district.

The examination by the committee so appointed shall be conducted and certified according

to the following rules:

Examination by Committee.

The applicant shall be examined by the district judge and at least two others of the

committee, and the questions and answers must be reduced to writing.

No intimation of the questions to be asked must be given to the applicant by any member

of the committee previous to the examination.

Examination to Embrace.

The examination shall embrace the following subjects:

1 The history of this state and of the United States;

2 The constitutional relations of the state and federal governments;

3 The jurisdiction of the various courts of this state and of the United States;

4 The various sources of our municipal law;

5 The general principles of the common law relating to property and personal rights and

obligations; 7KHJHQHUDOJURXQGVRIHTXLW\MXULVGLFWLRQDQGSULQFLSOHVRIHTXLW\

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6 The general grounds of equity jurisdiction and principles of equity jurisprudence;

7 Rules and principles of pleadings and evidence;

8 Practice under the civil and criminal codes of Nevada;

9 Remedies in hypothetical cases;

10 The course and duration of the applicant's studies.

3. The examiners will not be expected to go very much at large into the details of these

subjects, but only sufficiently so fairly to test the extent of the applicant's knowledge and the

accuracy of his understanding of those subjects and books which he has studied.

Examination by Committee.

4. When the examination is completed and reduced to writing, the examiners will return it

to this court, accompanied by their certificate showing whether or not the applicant is of good

moral character and has attained his majority, and is a bona fide resident of this state. Such

certificate shall also contain the facts that the applicant was examined in the presence of the

committee; that he had no knowledge or intimation of the nature of any of the questions to be

propounded to him before the same were asked by the committee, and that the answers to


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each and all the questions were taken down as given by the applicant without reference to any

books or other outside aid.

Fee To be Deposited Before Examination.

5. The fee of thirty-five dollars for license must in all cases be deposited with the clerk of

the court before the application is made, to be returned to the applicant in case of rejection.

RULE II.

Filing Transcript.

In all cases where an appeal has been perfected, and the statement settled (if there be one)

thirty days before the commencement of a term, the transcript of the record shall be filed on

or before the first day of such term.

RULE III.

Appeal May Be DismissedCan Be Restored.1. If the transcript of the record be not filed within the time prescribed by Rule II, the

appeal may be dismissed on motion during the first week of the term, without notice. A cause

so dismissed may be restored during the same term, upon good cause shown, on notice to the

opposite party; and, XQOHVVVRUHVWRUHGWKHGLVPLVVDOVKDOOEHILQDODQGDEDUWRDQ\RWKHUDSSHDOIURPWKHVDPHRUGHURUMXGJPHQW


unless so restored, the dismissal shall be final and a bar to any other appeal from the same

order or judgment.

How Restored.

2. On such motion there shall be presented the certificate of the clerk below, under the

seal of the court, certifying the amount or character of the judgment; the date of its rendition;

the fact and date of the filing of the notice of appeal, together with the fact and date of service

thereof on the adverse party, and the character of the evidence by which said service appears;

the face and date of the filing of the undertaking on appeal; and the same is in due form; thefact and time of the settlement of the statement, if there by one; and also that the appellant has

received a duly certified transcript, or that he has not requested the clerk to certify to a correct

transcript of the record; or, if he has made such request, that he has not paid the fees therefor,

if the same have been demanded.

RULE IV.


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Printed Transcripts.

1. All transcripts of record in civil cases, when printed, shall be printed on unruled white

paper, ten inches long by seven inches wide, with a margin on the other edge of not less than

one inch. The printed page shall not be less than seven inches long and three and one-half

inches wide. The folios, embracing ten inches each, shall be numbered from thecommencement to the end, and the numbering of the folios shall be printed between lines.

Nothing smaller than minion type leaded shall be used in printing.

Transcripts in Criminal Cases.

2. Transcripts in criminal cases may be printed in like manner as prescribed for civil

cases; or, if not printed, shall be written on one side only of transcript paper, sixteen inches

long by ten and one-half inches wide, fastened or bound together on the left sides of the pages

by ribbon or tape, so that the same may be secured, and every part conveniently read. The

transcript, if written, shall be in a fair, legible hand, and each paper or order shall be

separately inserted.

To Be Indexed.

3. The pleadings, proceedings, and statement shall be chronologically arranged in the

tranVFULSWVKDOOEHSUHIDFHGZLWKDQDOSKDEHWLFDOLQGH[VSHFLI\LQJWKHIROLRRIHDFKVHSDUDWHSDSHURUGHURUSURFHHGLQJDQGRIWKHWHVWLPRQ\RIHDFKZLWQHVVDQGWKHWUDQVFULSWVKDOOKDYHDWOHDVWRQHEODQNIO\VKHHWFRYHU


script shall be prefaced with an alphabetical index, specifying the folio of each separate

paper, order, or proceeding, and of the testimony of each witness; and the transcript shall

have at least one blank fly-sheet cover.

Cannot Be Filed.

4. No record which fail to conform to these rules shall be received or filed by the clerk of

the court.

RULE V.

Printing Transcripts.

The written transcript in civil causes, together with sufficient funds to pay for the printing

of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof,

shall file the same and cause the transcript to be printed, and to a printed copy shall annex his

certificate that the said printed transcript is a full and correct copy of the transcript furnished

to him by the party; and said certificate shall beprima facie evidence that the same is correct.


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The said printed copy so certified shall also be filed, and constitute the record of the cause in

this court, subject to be corrected by reference to the written transcript on file.

RULE VI.

Cost of Typewriting or Printing Transcripts.1. The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on

appeal in civil causes and pleadings, affidavits, briefs, or other papers constituting the record

in original proceedings upon which the cause is heard in this court, required by these rules to

be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual

mode;provided, that no greater amount than twenty-five cents per folio of one hundred words

shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per

folio for one copy only shall be taxed as costs for typewriting. All other costs to be taxed by

the clerk in accordance with the fee bill.

To Serve Cost Bill, When.

2. Either party desiring to recover as costs his expenses for printing or typewriting in anycause in this court, shall, before said cause is submitted, file with the clerk and serve upon the

opposite party a verified cost bill, setting forth or stating the actual cost of such printing or

typewriting, and QRJUHDWHUDPRXQWWKDQVXFKDFWXDOFRVWVKDOOEHWD[HGDVFRVWV


no greater amount than such actual cost shall be taxed as costs.

Mode of Objecting to Costs.

3. If either party desires to object to the costs claimed by the opposite party, he shall,

within ten days after the service upon him of a copy of the cost bill, file with the clerk and

serve his objections. Said objections shall be heard and settled and the costs taxed by the

clerk. An appeal may be taken from the decision of the clerk, either by written notice of five

days, or orally and instanter, to the justices of this court, and the decision of such justices

shall be final. If there be no objections to the costs claimed by the party entitled thereto, they

shall be taxed as claimed in his cost bill.

Indorsed Upon Remittitur.

4. In all cases where a remittitur or other final order is sent to a district court or other

inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed

upon such remittitur or order, and shall be collected as other costs in such district court, or

other inferior court or tribunal, and shall not be subject to retaxation in such district court or

other tribunal.


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RULE VII.

To Correct Error in Transcript.

For the purpose of correcting any error or defect in the transcript from the court below,

either party may suggest the same, in writing, to this court, and, upon good cause shown,obtain an order that the proper clerk certify to the whole or part of the record, as may be

required, or may produce the same, duly certified, without such order. If the attorney of the

adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,

except when a certified copy is produced at the time, must be accompanied by an affidavit

showing the existence of the error or defect alleged.

RULE VIII.

ExceptionsDiminution of Record.

Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of

appeal, or to its service or proof of service, or any technical exception or objection to therecord affecting the right of the appellant to be heard on the points of error assigned, which

might be curred on suggestion of diminution of the record, must be taken at the first WHUPDIWHUWKHWUDQVFULSWLVILOHGDQGPXVWEHQRWHGLQWKHZULWWHQRUWKHSULQWHGSRLQWVRIWKHUHVSRQGHQWDQGILOHGDWOHDVWRQHGD\EHIRUHWKHDUJXPHQWRUWKH\ZLOOQRWEHUHJDUGHG


term after the transcript is filed, and must be noted in the written or the printed points of the

respondent, and filed at least one day before the argument, or they will not be regarded.

RULE IX.

Substitution in Case of Death.

Upon the death or other disability of a party pending an appeal, his representative shall be

substituted in the suit by suggestion in writing to the court on the part of such representative,

or any party on the record. Upon the entry of such suggestion, an order of substitution shall be

made and the cause shall proceed as in other cases.

RULE X.

Calendar to Consist ofUpon Motion.

1. The calendar of each term shall consist only of those cases in which the transcript shall

have been filed on or before the first day of the term, unless by written consent of the parties;

provided, that all cases, both civil and criminal, in which the appeal has been perfected and


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the statement settled, as provided in Rule II, and the transcript has not been filed before the

first day of the term, may be placed on the calendar, on motion of either party, after ten days'

written notice of such motion, and upon filing the transcript.

Subdivision 2 is hereby abrogated.

3. Causes shall be placed on the calendar in the order in which the transcripts are filed by

the clerk.

RULE XI.

Time for Appellant to Serve BriefRespondent.

1. Within fifteen days after the filing of the transcript on appeal in any case, the appellant

shall file and serve his points and authorities or brief; and within fifteen days after the service

of appellant's points and authorities or brief; and within fifteen days thereafter, appellant shall

file and serve his points and authorities or brief in reply, after which the case may be argued

orally.

2. The points and authorities shall contain such brief statement of the facts as may be

necessary to explain the point made.

Oral Argument.

3. The oral argument may, in the discretion of the court, be limited to the printed or

typewritten points and authoriWLHVRUEULHIVILOHGDQGDIDLOXUHE\HLWKHUSDUW\WRILOHSRLQWVDQGDXWKRULWLHVRUEULHIVXQGHUWKHSURYLVLRQVRIWKLVUXOHDQGZLWKLQWKHWLPHKHUHLQSURYLGHVKDOOEHGHHPHGDZDLYHUE\VXFKSDUW\RIWKHULJKWWRRUDOO\DUJXHWKHFDVHDQGVXFKSDUW\VKDOOQRWUHFRYHUFRVWIRUSULQWLQJRUW\SHZULWLQJDQ\EULHIRUSRLQWVDQG

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ties or briefs filed, and a failure by either party to file points and authorities or briefs under

the provisions of this rule and within the time herein provide, shall be deemed a waiver by

such party of the right to orally argue the case, and such party shall not recover cost for

printing or typewriting any brief or points and authorities in the case.

4. No more than two counsel on a side will be heard upon the oral argument, except by

special permission of the court, but each defendant who has appeared separately in the court

below may be heard through his own counsel.

Optional in Criminal Cases.

5. In criminal cases it is left optional with counsel either to file written, printed, or

typewritten points and authorities or briefs.

When Submitted.

6. When the oral argument is concluded, the case shall be submitted for the decision of


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the court.

Stipulation as to Time.

7. The times herein provided for may be shortened or extended by stipulation of parties or

order of court, or a justice thereof.

RULE XII.

Printing and Paper To Be Uniform.

In all cases where a paper or document is required by these rules to be printed, it shall be

printed upon similar paper, and in the same style and form (except the numbering of the

folios in the margin) as is prescribed for the printing of transcripts.

RULE XIII.

Number of Copies To Be Filed.

Besides the original, there shall be filed ten copies of the transcript, briefs, and points andauthorities, which copies shall be distributed by the clerk.

RULE XIV.

Opinions Recorded.

All opinions delivered by the court, after having been finally corrected, shall be recorded

by the clerk.

RULE XV.

RehearingRemittitur to Issue, WhenTime May Be Shortened or Extended.

All motions for a rehearing shall be upon petition in writing, and filed with the clerk

within fifteen days after the final judgment is rendered, or order made by the court, and

pubOLFDWLRQRILWVRSLQLRQDQGGHFLVLRQ


lication of its opinion and decision. Personal service or service by mail upon counsel of a

copy of the opinion and decision shall be deemed the equivalent of publication. The party

moving for a rehearing shall serve a copy of the petition upon opposing counsel, who within

ten days thereafter may file a reply to the petition, and no other argument shall be heard

thereon. No remittitur or mandate to the court below shall be issued until the expiration of the

fifteen days herein provided, and decisions upon the petition, except upon special order. The

times herein provided for may be shortened or extended, for good cause shown, by order of


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court.

RULE XVI.

Opinion To Be Transmitted.

Where a judgment is reversed or modified, a certified copy of the opinion in the case shallbe transmitted, with the remittitur, to the court below.

RULE XVII.

No Paper To Be Taken Without Order.

No paper shall be taken from the court room or clerk's office, except by order of the court,

or of one of the justices. No order will be made for leave to withdraw a transcript for

examination, except upon written consent to be filed with the clerk.

RULE XVIII.

Writ of Error, or Certiorari.

No writ of error or certiorari shall be issued, except upon order of the court, upon petition,

showing a proper case for issuing the same.

RULE XIX.

Writ of Error to Operate as Supersedeas.

Where a writ of error is issued, upon filing the same and a sufficient bond or undertaking

with the clerk of the court below, and upon giving notice thereofto the opposite party or his

attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall besubstantially the same as required in cases on appeal.

RULE XX.

When Returnable.

The writ of error shall be returnable within thirty days, unless otherwise specially directed.


RULE XXI.

To Apply.

The rules and practice of this court respecting appeals shall apply, so far as the same may

be applicable, to proceedings upon a writ of error.


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RULE XXII.

Time Concerning Writ.

The writ shall not be allowed after the lapse of one year from the date of the judgment,

order, or decree which is sought to be reviewed, except under special circumstances.

RULE XXIII.

Concerning Change of VenueAdditional Notice Given.

Appeals from orders granting or denying a change of venue, or any other interlocutory

order made before trial, will be heard at any regular or adjourned term, upon three days'

notice being given by either appellant or respondent, when the parties live within twenty

miles from Carson. When the party served resides more than twenty miles from Carson, an

additional day's notice will be required for each fifty miles, or fraction of fifty miles, from

Carson.

RULE XXIV.

Notice of Motion.

In all cases where notice of a motion is necessary, unless, for good cause shown, the time

is shortened by an order of one of the justices, the notice shall be five days.

RULE XXV.

Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.

1. Hereafter all transcripts of the record in any action or proceeding may be typewritten.The typewriting shall be the first impression, clearly and legibly done, with best quality of

black ink, in type not smaller than small pica, upon a good quality of typewriting paper,

thirteen inches long by eight inches wide, bound in boards with flexible backs, in volumes of

a size suitable for convenient handling and ready reference, and arranged and indexed as

required by the rules of this court. When so typewritten such transcript, in the discretion of

the party appealing, need not be printed, but, if printed, all the rules concerning the same shall

still apply thereto.


Briefs May Be Typewritten.

2. Briefs and points and authorities, instead of being printed, may be typewritten upon the

same paper and in the same style and form as is prescribed for typewritten transcripts.


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Copy To be ServedTwo Copies To Be Filed.

3. When so typewritten, but one copy of such transcript need be filed in the case; but a

copy thereof shall be served upon the opposite party. Two copies of the briefs and points and

authoritiesviz., the first impression and a copy thereofshall be filed with the clerk, and a

copy shall be served upon each opposite party who appeared separately in the court below.

RULE XXVI.

Concerning Certificate of Naturalization.

Under no circumstances shall this court, or any of the district courts of the State of

Nevada, hear proof for the issuance of, or issue, final papers or certificates of naturalization to

any applicant therefor, at any time within the sixty days immediately preceding any general or

special state election of this state.

RULE XXVII.

Payment of Advance Fee RequiredClerk Prohibited from Filing.No transcript or original record shall be filed or cause registered, docketed, or entered until

an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of

suit. The clerk of the court is prohibited from filing or registering any record without first

having received as a deposit the aforesaid fee.

____________

30 Nev. 17, 17 (1908) Rules of District Court

RULES

OF THE

District Court of the State of Nevada

___________

RULE I.

The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.

RULE II.

Calendars to ContainAttorneys.

The clerk of each county of the state shall make three calendars for the district court of his

county, upon one of which he shall place all civil causes at issue upon questions of fact as


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soon as the issue is made; upon another of which he shall place all civil causes at issue upon a

question of law, and all motions of every nature, except ex parte motions, as soon as the issue

is made, or as soon as notice of motion is filed; and upon the third of which he shall place all

criminal business of every kind. The names of the attorneys of the respective parties shall be

appropriated placed on such calendars. The clerk shall, on every Saturday, forward to the

presiding judge of the court, and also to the judge who is to sit in his county, a full statementof the condition of the business of the court as shown by the calendars.

RULE III.

Notice as to Time.

The judge who is to hold court in any county shall give the clerk of such county notice of

the time when court will sit. The clerk shall, immediately upon receiving such notice, give all

the attorneys having business in said court, as shown by the calendar, and also all attorneys

practicing in his county, notice in writing of the time when court will be held. He shall also

give notice of the time of holding FRXUWLQVRPHQHZVSDSHUSULQWHGDQGSXEOLVKHGDWWKH

FRXQW\VHDWRIKLVFRXQW\SURYLGHGLWFDQEHGRQHZLWKRXWH[SHQVH


court, in some newspaper printed and published at the county seat of his county, provided it

can be done without expense.

RULE IV.

When Calendar CalledOrder.

Upon the meeting of the court, as provided in Rule III, the law calendar will first be called

and disposed of. The trial calendar will then be called, and causes at issue upon questions of

fact disposed of. When the calendar is called the causes will be set for a time certain. Parties

are expected to be ready to try their causes, whether at issue upon questions of law or fact,

when the calendar is called, and in the order in which they are set. Parties may, prior to the

meeting of the court, fix the day of trial by stipulation in writing, subject to the approval of

the court or judge. The daily business of the court will be disposed of in the following order:

FirstThe minutes of the previous day's business shall be read, approved, and signed bythe judge.

SecondEx parte motions.

ThirdProbate business, when there is no contest.

FourthIssues arising subsequent to the calling of the calendar shall be set.

FifthTrial of causes, as previously set.

SixthQuestions of law.


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RULE V.

Law Day.

On each Saturday of any session of court held by any district judge, law questions shall

take precedence, and be heard without previous setting or notice.

RULE VI.

Relating to Motions.

When any motion or proceeding has been noticed, or set for a time certain, and for any

cause is not heard at the time appointed, the hearing of the same shall be continued without

further order, and the motion or proceeding shall be placed upon the calendar and disposed of

as other issues thereon.

RULE VII.

Issues of LawDecision.Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation

of the parties, at any time or place agreed on in the state, with the consent of the MXGJHILUVWKDYLQJMXULVGLFWLRQRIWKHFDXVHRUVXFKTXHVWLRQVRIODZRUPRWLRQVDVWKHFDVHPD\EHPD\EHVXEPLWWHGRQEULHIVRIVXFKMXGJHZLWKKLVFRQVHQWDQGWKHGHFLVLRQPD\EHILOHGWKHUHDIWHUDWDQ\WLPHZKLFKGHFLVLRQVKDOOIL[WKHWLPHZKHQWKHGHFLVLRQRIWKHFRXUWLVWREHFRPSOLHGZLWKDQGLQDOOVXFKFDVHVWKHSDUW\ZKRLVUHTXLUHGWRDFWE\VXFK

GHFLVLRQVKDOOUHFHLYHGXHZULWWHQQRWLFHWKHUHRIIURPWKHRSSRVLWHSDUW\


judge first having jurisdiction of the cause, or such questions of law, or motions, as the case

may be, may be submitted on briefs of such judge, with his consent, and the decision may be

filed thereafter at any time, which decision shall fix the time when the decision of the court is

to be complied with; and in all such cases the party who is required to act by such decision

shall receive due written notice thereof from the opposite party. Time for complying with

such decision shall commence to run from the time when service is made in the manner

required by the statutes for service of pleadings in a case;provided, that when the parties are

present by their respective attorneys when the decision is rendered, no notice shall berequired.

RULE VIII.

DemurrerSet Down for Trial.

When a demurrer is interposed in any case, if it be made to appear to the satisfaction of the

court that such demurrer has not been interposed in good faith, but merely for delay, the


17/384

defendant shall only answer upon such terms as the court may prescribe, and, upon the filing

of the answer, the case shall be set down for trial for as early a day as the business of the court

will permit. In cases other than those above mentioned, ten days shall be allowed to amend or

plead, as the case may be, unless the court by its order fix a different time.

RULE IX.

Documents and Pleadings.

All documents and pleadings, intended for the files of this court, shall be on paper known

as legal cap, of good quality, and without interlineations, unless noted thereon by the clerk

at the time of filing. No original pleading or paper shall be amended by making erasures or

interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all

papers issued from this court, or to be used therein, which are required by law or rule of court

to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the

party failing shall be compelled to renew the paper, or be precluded from using the original,

as the court may deem proper.

RULE X.

Motions.

Motions in all cases, except ex parte motions, motions for FRQWLQXDQFHDQGPRWLRQVWRDPHQGSOHDGLQJVSHQGLQJDWULDOVKDOOEHQRWLFHGDWOHDVWILYHGD\VEHIRUHWKHGD\VSHFLILHGIRUDKHDULQJDQGDFRS\RIDOOSDSHUVWREHXVHGE\WKHPRYLQJSDUW\H[FHSW

SOHDGLQJVRURWKHUUHFRUGVRIWKHFRXUWVKDOOEHVHUYHGZLWKWKHQRWLFHRIPRWLRQ


continuance, and motions to amend pleadings pending a trial, shall be noticed at least five

days before the day specified for a hearing, and a copy of all papers to be used by the moving

party, except pleadings or other records of the court, shall be served with the notice of

motion. The notice of motion shall be in writing, and shall specify the papers to be used and

the names of witnesses to be examined by the moving party, and the grounds upon which the

motion is made;provided, that the court may, upon good cause shown, shorten or enlarge the

time for hearing. For a failure to comply with this rule the motion shall be denied.

RULE XI.

Hearing of Motions.

Upon reading and filing the notice of motion, with due proof of service of the same, and of

the papers mentioned therein, if no one appears to oppose the motion, the moving party shall

be entitled to have the motion decided. Upon the hearing, the affidavits to be used by either

party shall be endorsed and filed before the affidavits shall be used. The manner of making


18/384

motions shall be as follows:

FirstThe moving party shall read the moving papers, or state the contents thereof, or

introduce his oral evidence.

SecondThe party opposing shall then read or state the contents of his opposing papers,

or introduce his oral evidence.

ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, ifadmissible under the rules of practice in law or equity. The counsel for the moving party shall

make his argument, to be followed by the counsel of the opposing party, and the counsel for

the moving party may reply.

RULE XII.

Hearing of Motions of ContinuanceTestimony of AbsenteesCounter Affidavit.

All motions for the continuance of causes shall be made on affidavit; and, when made on

the ground of absence of witnesses, the affidavit shall state:

FirstThe names of the absent witnesses, and their present residence or abiding place, if

known.SecondWhat diligence has been used to procure their attendance, or depositions, and the

causes of a failure to procure the same.


ThirdWhat the affiant has been informed and believes will be the testimony of each of

such absent witnesses, and whether or not the same facts can be proven by other witnessesthan parties to the suit, whose attendance or depositions might have been obtained.

FourthAt what time the applicant first learned that the attendance or depositions of such

absent witnesses could not be obtained.

FifthThat the application is made in good faith, and not for delay merely. And no

continuance will be granted unless the affidavit upon which it is applied for conforms to this

rule, except where the continuance is applied for in a mining case, upon the special ground

provided by statute. A copy of the affidavits upon which a motion for a continuance is made,

shall be served upon the opposing party as soon as practicable after the cause for the

continuance shall be known to the moving party. Counter affidavits may be used in

opposition to the motion. No amendments or additions to affidavits for continuance will be

heard on motions for a continuance, except such as relate to the sufficiency of the affidavits

read on the hearing.

RULE XIII.

Attorneys as Witnesses.

If the attorney or counsel of either party offers himself as a witness on behalf of his client,


19/384

and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up to the

jury, without the permission of the court.

RULE XIV.

Sureties.No attorney will be received as surety on any bond or recognizance to be filed or entered

into in any action or proceeding in this court.

RULE XV.

DepositionsInterrogatories, How Settled.

A party making application for a commission to take the deposition of a witness out of the

state, shall serve, with the notice of such application, a copy of the direct interrogatories; and,

at least one day before the hearing of the application, the adverse party shall serve upon the

moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall be

settled at the time of hearing the DSSOLFDWLRQXQOHVVWKHFRXUWRUMXGJHRWKHUZLVHGLUHFWSURYLGHGWKDWSDUWLHVPD\DJUHHWRWKHLQWHUURJDWRULHVZLWKRXWVXEPLVVLRQWRWKHFRXUWRUMXGJHRUPD\VWLSXODWHWKDWWKHGHSRVLWLRQVPD\EHWDNHQZLWKRXWZULWWHQLQWHUURJDWRULHV


application, unless the court or judge otherwise direct;provided, that parties may agree to the

interrogatories without submission to the court or judge, or may stipulate that the depositions

may be taken without written interrogatories.

RULE XVI.

Depositions.

When a deposition is received by the clerk, he shall endorse upon the envelope the time of

receiving it, and immediately file it with the papers of the case in which it was taken; and at

any time afterward, upon the application of any attorney in the case, he shall open the same,

and endorse upon the envelope the time of opening, and the name of the attorney upon whose

application it was opened, and shall then file the deposition.

RULE XVII.

Amended Pleadings.

In cases where the right to amend any pleading is not of course, the party desiring to

amend shall serve, with the notice of application to amend, an engrossed copy of the

pleading, with the amendment incorporated therein, or a copy of the proposed amendment,


20/384


21/384

RULE XXII.

AppealsCertificate of Appeal to StateSupersedeas.

When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall

stay all further proceedings in the court below, upon the judgment or order appealed from or

upon the matter embraced therein; and if an execution or other order shall have been issued tothe sheriff, coroner, or elisor, he shall return the same, with the cause therefor, and his

proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, under

the seal of the court, of the perfecting of the appeal. The certificate shall state the title of the

action, the filing and service of the notice of appeal and the date of such filing and service,

together with the filing and approval of the undertaking staying all proceedings, and the date

of such filing and approval; and such certificate shall operate as a supersedeas of the

execution, or a vacation of the order.

RULE XXIII.

Foreclosing MortgageService by Publication.If, in an action to foreclose a mortgage, the defendant fails to answer within the time

allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the

answer, the court may make an order referring it to some suitable person as referee, to

compute the amount due to the plaintiff, and to such of the defendants as are prior

incumEUDQFHUVRIWKHPRUWJDJHVSUHPLVHVDQGWRH[DPLQHDQGUHSRUWZKHWKHUWKHPRUWJDJHVSUHPLVHVFDQEHVROGLQSDUFHOVLIWKHZKROHDPRXQWVHFXUHGE\WKHPRUWJDJH

KDVQRWEHFRPHGXH


brancers of the mortgages premises, and to examine and report whether the mortgages

premises can be sold in parcels, if the whole amount secured by the mortgage has not become

due. If any of the defendants have been served by publication, the order of reference shall also

direct the referee to take proof of the facts and circumstances stated in the complaint, and to

examine the plaintiff, or his agent, on oath, as to any payments which have been made, and to

compute the amount due on the mortgage, preparatory to the application for decree of

foreclosure.

RULE XXIV.

Further Time.

When an order shall be made enlarging the time to file a statement or affidavits on motion

for new trial, the adverse party shall have the same number of days to propose amendments or

file counter affidavits as was allowed by such order to file such statement or affidavits.


22/384

RULE XXV.

Settled by Referee.

When a motion for a new trial is made in a cause tried before a referee, the statement shall

be settled by the referee.

RULE XXVI.

UndertakingsStay of ExecutionCertificate to State.

No stay of execution upon motion for a new trial shall be granted or allowed, nor

execution or other proceeding be stayed in any case, except upon the giving of a good and

sufficient undertaking, in the manner and form as other undertakings are given, to be

approved by the judge, with at least two sureties, for the payment of the judgment or debt, or

performance of the act directed by the judgment or order, in such amount as may be fixed by

the judge. An order to stay execution, or other proceedings in an action, shall be of no effect

until a copy of notice thereof is served upon the opposite party, or his attorney, and any otherparty or officer whose proceedings are to be stayed thereby, unless said attorney or officer be

present at the time of making such order. And if an execution or other order shall have been

issued to the sheriff, coroner, elisor, or other person, he shall return the same with the cause

therefor and his proceedings thereunder indorsed thereon, upon receiving from the clerk a

certificate, under the seal of the court, of the granting ofWKHVWD\RIH[HFXWLRQRURWKHU

SURFHHGLQJV


the stay of execution or other proceedings. The certificate shall state the title of the action, the

order staying the execution or other proceedings, and the date of such order, together with the

filing and approval of the undertaking above required, and the date of such filing and

approval; and such certificate shall operate as a supersedeas of the execution or a vacation of

the order.

RULE XXVII.

Stipulations.

No agreement or stipulation between the parties in a cause, or their attorneys, in respect to

the proceedings therein, will be regarded, unless the same shall be entered in the minutes in

the form of an order, by consent, or unless the same shall be in writing, subscribed by the

party against whom the same shall be alleged, or by his attorney or counsel.

RULE XXVIII.


23/384

Juror, How Excused.

No juror shall be excused except in open court; and when a juror is excused, the clerk shall

immediately withdraw his name from the box for the period for which he has been excused.

RULE XXIX.

Guardians.

No person shall be appointed guardian ad litem, either upon the application of the infant or

otherwise, unless he be the general guardian of the infant, or an attorney or other officer of

this court, or is fully competent to understand and protect the rights of the infant; has no

interest adverse to that of the infant, and is not connected in business with the attorney or

counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the

infant for any damage which may be sustained for his negligence or misconduct in defense of

the suit.

RULE XXX.

Attorneys as Guardians Ad Litem.

Every attorney, or officer of this court, shall act as guardian of an infant defendant,

whenever appointed for that purpose by an order of the court. He shall examine into the

circumstances of the case, so far as to enable him to make the proper defense, and shall be

entitled to such compensation as the court may deem reasonable.


RULE XXXI.

Guardians Ad Litem.

No guardian ad litem shall receive any money or property, or proceeds of sale of real

estate, until he has given security by bond, in double the amount of such property or money,

with two sureties, who shall justify as in other cases, approved by the judge and filed by the

clerk, conditioned for the faithful discharge of his trust.

RULE XXXII.

To Furnish to the Clerk.

The counsel obtaining any order, judgment, or decree, shall furnish the form of the same to

the clerk.

RULE XXXIII.


24/384

To Be Filed.

The sheriff shall file with the clerk the affidavit and order on which any arrest is made,

within five days after such arrest is made.

RULE XXXIV.

Retax Costs.

The party against whom judgment is entered shall have two days after service of a copy of

the cost bill in which to move to retax costs.

RULE XXXV.

Mechanics' Liens.

In actions to enforce mechanics' liens, other lienholders coming in under the notice

published by the plaintiff shall do so by filing with the clerk and serving on the plaintiff, and

also on the defendant, if he be within the state, or be represented by counsel, a writtenstatement of the facts constituting their liens, together with the dates and amounts thereof,

and the plaintiff and other parties adversely interested shall be allowed five days to answer

such statements.

RULE XXXVI.

Motions.

No motion once heard and disposed of shall be renewed in the same cause, nor shall the

same matters therein embraced be reheard, unless by leave of the court granted upon motion

therefor, after notice of such motion to the adverse parties.

RULE XXXVII.

Appeal from Justices' CourtDismissed, When.

When an appeal from the justices' court to this court has been perfected, and the papers are

not filed in this court within fifteen days from the day of filing the undertaking on DSSHDOWKLVFRXUWRQWKHSURGXFWLRQRIDFHUWLILFDWHIURPWKHMXVWLFHWRWKHHIIHFWWKDWDQDSSHDOKDVEHHQRUGHUHGXSRUWKHSURSHUFRVWVQRWSDLGRUXSRQVKRZLQJWKDWDQ\RWKHUQHFHVVDU\VWHSVKDYHQRWEHHQWDNHQVKDOOGLVPLVVWKHDSSHDODWWKHFRVWRIWKHDSSHOODQW


appeal, this court, on the production of a certificate from the justice to the effect that an

appeal has been ordered up, or the proper costs not paid, or upon showing that any other


25/384

necessary steps have not been taken, shall dismiss the appeal at the cost of the appellant.

RULE XXXVIII.

Appeal Dismissed, When.

The plaintiff shall cause the papers in a case certified to this court under the provisions ofthe 539th section of the practice act, to be filed in the office of the clerk of this court within

fifteen days from the day upon which the order of the justice is made directing the transfer of

the case. If the papers are not so filed the case shall be dismissed, upon filing a certificate

from the justice to the effect that he has certified the papers as required by said section, but

that the same has not been ordered up, or the proper costs paid; or if it shall appear that such

papers are not filed in this court by reason of the neglect of the plaintiff to pay the fees of the

clerk for filing the same.

RULE XXXIX.

Duties of Sheriff.During the time the court remains in session it shall be the duty of the sheriff in attendance

to prevent all persons from coming within the bar, except officers of the court, attorneys and

parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall

also keep the passage way to the bar clear for ingress or egress.

RULE XL.

Instructions To Be Settled, When.

Before the argument begins, counsel shall prepare their instructions, submit them to the

inspection of the opposite party, and then deliver them to the court. The court will hearobjections to instructions, and will, when practicable, settle the instructions in advance of the

agreement, and permit counsel to use them when addressing the jury.

RULE XLI.

Trials.

When any district judge shall have entered upon the trial or hearing of any cause or

proceeding, demurrer or motion, or made any ruling, order or decision therein, no other judgeVKDOOGRDQ\DFWRUWKLQJLQRUDERXWVDLGFDXVHSURFHHGLQJGHPXUUHURUPRWLRQXQOHVVXSRQWKHZULWWHQUHTXHVWRIWKHMXGJHZKRVKDOOKDYHILUVWHQWHUHGXSRQWKHWULDORU

KHDULQJRIVDLGFDXVHSURFHHGLQJGHPXUUHURUPRWLRQ



26/384

shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless upon

the written request of the judge who shall have first entered upon the trial or hearing of said

cause, proceeding, demurrer or motion.

RULE XLII.

Writs.

When an application or petition for any writ, rule or order shall have been made to a

district judge and is pending, or has been denied by such judge, the same application or

motion shall not again be made to the same or another district judge, unless upon the consent

in writing of the judge to whom the application or motion was first made.

RULE XLIII.

Duties of Judge.

No judge, except the judge having charge of the cause or proceeding, shall grant further

time to plead, move, or do any act or thing required to be done in any cause or proceeding,unless it be shown by affidavit that such judge is absent from the state, or from some other

cause is unable to act.

RULE XLIV.

Causes Certified by State Land Register.

When a cause shall have been certified by the state land register to the district court for

trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such

certification, to file and serve upon the adverse party a complaint setting forth the facts upon

which he claims to be entitled to the land. The adverse party shall, within ten days afterservice of the complaint, file and serve his answer, in which answer he shall set forth the facts

upon which he relies.

RULE XLV.

Vacating Judgments, Orders, Etc.Time to Amend.

No judgment, order, or other judicial act or proceeding, shall be vacated, amended,

modified or corrected by the court or judge rendering, making, or ordering the same, unless

the party desiring such vacation, amendment, modification or correction shall give notice to

the adverse party of a motion therefor, within six months after such judgment was rendered,

order made, or action or proceeding taken.



27/384

To the Honorable Judges of the District Court of the State of Nevada:

Your Committee appointed to prepare Rules of Court submit for your approval and

adoption the foregoing rules, forty-five in number.

TRENMOR COFFIN,

ROBT. M. CLARKE,

R. H. LINDSAY,W. E. F. DEAL,

H. F. BARTINE,

Committee.

Attest: James D. Torreyson, Secretary.

____________

It is hereby ordered that the foregoing rules, forty-five in number, be and they are hereby

adopted as the Rules of Practice of the District Court of the State of Nevada, and that they be

in force in each county thirty days after the date of their filing in the clerk's office of suchcounties.

RICHARD RISING,

Presiding District Judge.

R. R. BIGELOW,

A. L. FITZGERALD,

District Judges.

____________

30 Nev. 43, 43 (1908)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________


28/384

JANUARY TERM, 1908.

____________

30 Nev. 43, 43 (1908) Costello v. Scott

[No. 1723.]

THOMAS J. COSTELLO and LEONA K. NEWHALL, Respondents, v. MURRY SCOTT,

N. R. FITZPATRICK, WILLIAM MAYS, and L. A. SAVAGE, Appellants.

1. JuryRight to Jury TrialEquity Case. In an equity case, a party cannot demand a jury as a matter of right,

the calling of a jury being within the discretion of the judge.

2. SameLegal and Equitable Issues. Where a suit to establish a partnership and for an accounting was treated

by all the parties as an equitable proceeding throughout, and a jury was called to aid the court in

determining certain questions of fact, but no jury was ever demanded to try the legal issues raised by

defendant's answer, their right to a jury trial of such issues was waived, and the court was authorized todisregard the jury's conclusions on the facts, and to file his own findings and base a decree thereon.

3. Mining PartnershipsCreation. In a suit for an accounting of an alleged mining partnership and to establish

plaintiffs' interest in certain mining claims discovered by defendant S., evidence heldto sustain a finding

that a partnership for the location and operation of mines existed between plaintiffs and defendant S.,

covering the locality in controversy, at the time the claims in question were discovered, and that plaintiffs

were entitled to an interest therein.

4. SameGrub-Stake Contract. A grub-stake contract, by which one agrees to furnish supplies for a prospector

and share in any mining claims he may discover, does not constitute a partnership, unless the agreement

extends beyond the mere furnishing of supplies in consideration of a participation in the discoveries.


5. SameContractModification. Plaintiffs and defendant S. having formed a partnership for location and

operation of mining claims, S., on May 4, 1906, wrote plaintiffs that he had arrived in F. and secured a

two-thirds lease on certain property; that he would need $50 to carry on the lease, giving plaintiffs

one-third or one-half thereof. Plaintiffs in reply on the 10th complained of their inability to raise money,

but promised to send the same not later than the following Tuesday, and called for a description of the

camp and lease. On May 19th plaintiffs wrote another letter, inclosing the $50, and again called for a full

description of the lease and the claims S. had located between G. and F.Held, that such correspondence

did not constitute a termination of the prior partnership between the parties, and a new contract to operate

the leased ground, but contemplated a continuance of the prior relations between plaintiffs and S.

6. AppealAdmission of EvidencePrejudice. Defendant S. was not prejudiced by the admission of a letter in

evidence in an equity suit, where its admission could not have changed the rights of the parties.

7. Same. Where the question of partnership in issue was a matter of legal construction to be placed on prior

correspondence between the parties, which, as found by the court, established a partnership, the

admission of other subsequent letters, even though erroneous, because they contained self-serving

declarations, was not prejudicial to defendants.

8. Fraudulent ConveyancesNoticeEvidence. Plaintiffs and defendant S., having entered into a prospecting


29/384

partnership, S., while living with defendant F., located a number of claims, some in the name of plaintiff

C., and S. and F., of which F. had knowledge, and later conveyed to F. surface town-site rights in land

covering a number of claims in controversy. F. testified that he first learned that plaintiff C. was

interested with S. when he (F.) first went to G. Held, that such facts were insufficient to charge F. with

notice of the existence of a partnership between plaintiffs and S.

9. AppealFinding of FactConclusiveness. A finding of fact in an equity suit, supported by the evidence, is

conclusive on the supreme court.10. Mines and MineralsMining PartnershipContractsPerformance. Where S., while a member of a

prospecting partnership, located certain mining claims, and with others transferred town-site surface

rights to F., in consideration of his performance of the location work necessary to hold the claims, and to

survey and plat the same, neither plaintiffs nor S. were entitled to complain that F. subsequently made

arrangements that such work should be done by another.

11. SameAuthority. Where a partnership for the location of mining claims, etc., was practically without funds,

a member of the firm was authorized in good faith to convey certain town-site surface rights embracing

such claims, in consideration of the grantee's performance of the location work, etc., necessary to hold the

claims.

12. PartnershipAccountingJudgment. A receiver in proceedings for an accounting of the assets of a firm in

which plaintiffs were entitled to a half interest with defendant S. became possessed of $1,816 belonging

to the firm, and the final decree adjudged to plaintiffs against S.


the sum of $2,180.60, which sum included the $1,816. Held, that such judgment was erroneous, as in

effect a double judgment for plaintiffs for one-half of the $1,816.

13. New TrialErrorsCorrectionRemittitur. Where a judgment for plaintiffs in a suit for an accounting of a

partnership was excessive through mere oversight of the trial judge, and on an application for a new trial

plaintiffs confessed the error, and offered to remit the excess, the court had power to deny the motion onplaintiffs filing a remission.

14. AppealReviewDisposition of Cause. Where a judgment was excessive through misadvertence of the

trial judge, the supreme court, in the event of a denial of a new trial without requiring remission of the

excess, on its attention being called to the error, would modify the judgment, and affirm the order

denying the motion for a new trial, as authorized by Comp. Laws, 3434.

15. Mines and MineralsMining PartnershipAccountingDecree. Defendant S., while a partner of plaintiffs,

located, with his two codefendants, certain valuable mining claims, which defendants transferred to a

corporation. Plaintiffs then sued for an accounting, to which the corporation was not a party, and a decree

was entered giving plaintiffs an undivided half of an undivided third of the claims in question; the decree

also reciting that plaintiffs were entitled to an undivided one-half of any and all further moneys or other

consideration received or to be received by S., or contracted to be paid to him, accruing or arising out of

any interest, property right, claim or demand of S. to such mining claims, etc. Held, that such decree didnot attempt to adjudicate plaintiffs' rights to stock in the corporation nor any of its rights, and was

therefore not objectionable as being a double judgment, in giving plaintiff one-half of S.'s third in the

claims deeded to the corporation, and also one-half of all stock issued by the corporation to S. in

consideration of the transfer.

16. JudgmentConclusivenessParties. Where a corporation to which certain mining claims had been

transferred was not a party to a suit for an accounting between plaintiffs and the corporation's grantors,

the corporation was not bound by a decree establishing plaintiffs' rights as against such grantors.

17. AppealAdmission of EvidencePrejudice. Where, in a suit for accounting between partners and others


30/384

concerning certain mining claims transferred to a corporation, the question whether a deed by one of the

partners of his interests in the claims to the corporation conveyed the title so as to cut out plaintiffs'

equities was not involved nor attempted to be determined, the admission of such deed was not prejudicial

to defendants.

On Petition for Rehearing.

1. AppealReviewEstoppel to Allege Error. Appellants, by treating a judgment as final and appealing

therefrom, are estopped to deny its finality.

2. SameDecision ReviewableFinality. Where a judgment determined the existence of a partnership, and

ordered a dissolution thereof, gave to plaintiffs an undivided half interest in certain property, determined

to have belonged to the partnership, and in the hands of the receiver, JDYHMXGJPHQWDJDLQVWWKH

GHIHQGDQWIRURQHKDOIRIDFHUWDLQVXPOHVVFHUWDLQVSHFLILHGGHGXFWLRQVVXFKVXPKDYLQJEHHQUHFHLYHGE\GHIHQGDQWRQDFFRXQWRIWKHSDUWQHUVKLSDIIDLUVSULRUWRWKHLQVWLWXWLRQRIWKHVXLWDQGWKHDSSRLQWPHQWRIWKHUHFHLYHUDQGIXUWKHUDOORZLQJSODLQWLIIVWKHLUFRVWVWD[HGDWDFHUWDLQVXPLWZDVDILQDOMXGJPHQWWKRXJKWKHULJKWWRPDNHDVXSSOHPHQWDOGHFUHHZDVUHVHUYHGE\WKHFRXUW


gave judgment against the defendant for one-half of a certain sum less certain specified deductions, such

sum having been received by defendant on account of the partnership affairs prior to the institution of the

suit and the appointment of the receiver, and further allowing plaintiffs their costs taxed at a certain sum,

it was a final judgment, though the right to make a supplemental decree was reserved by the court.

3. PartnershipDissolutionActionDecree. Where, at the time a decree was entered dissolving a partnership,

appointing a receiver, and awarding plaintiffs one-half of all moneys in the hands of the receiver, there

was no showing of any partnership indebtedness, and the court proceeded on the theory that there was

none, such judgment should be modified on appeal, that the claims of third parties be first paid out of the

property in the hands of the receiver.4. SameCostsDiscretion of Court. The allowance of fees of the receiver as costs in proceedings for

dissolution of a partnership is a matter in the legal discretion of the trial court.

5. SameAppealModification of Decree. Where a decree recited that the court deemed the appointment of a

receiver for the best interest of said copartnership, and then proceeded to impose all fees and expenses

of the receiver upon defendants, such decree will be modified on appeal by directing that such fees and

expenses be borne by the partners equally.

Appeal from the District Court of the Second Judicial District of the State of Nevada,

Churchill County;B.F.Curler, Judge.

Action by Thos. J. Costello, etal., against Murry Scott, etal. From a decree in favor of

plaintiffs, defendants appeal. Modified and affirmed as to all the defendants, except N. R.

Fitzpatrick, and reversed and new trial granted on certain of the issues between plaintiffs

and defendant Fitzpatrick. Petition for rehearing. Denied.

The facts sufficiently appear in the opinion.

ThomasS.Ford,L.N.French, and T.W.Wampler, for Appellants:


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I. A cardinal principle of pleading and practice was violated in this case by entering

judgment against the defendants upon the testimony produced. By the complaint, and the

plaintiffs' theory of the case, the plaintiffs were to have supplied Scott with money. They

claim that they did so, and they specify and base their rights to recovery on the allegation that,

at the time of the discovery of the Wonder mines, he was living on money which had beensupplied by them. Upon this allegation there was an entire absence of proof.


The contrary was established beyond all question of doubt. It will be noticed by the court that

when plaintiffs concluded to sue defendants it became necessary to show that the contract

extended outside of Goldyke District, an that they had furnished Scott the money he wrote

for. They had promised to send fifty dollars to Fairview. Two of the main issues presented by

the pleadings were these: (1) Did defendant Scott receive fifty dollars in currency alleged to

have been sent by plaintiffs on May 19th, in a letter by mail? (2) Was Scott subsisting on the

proceeds of this money on May 25th, when the Wonder mines were discovered? That it

became necessary for plaintiffs to prove these facts will become apparent to the court, not

only from an inspection of the pleadings, but from the law applicable to the case. As to the

law, it is clearly set forth in the case ofPrince v.Lamb, 128 Cal. 128. In that case the court

says: Neither can the complaint be upheld on the theory that it counts on a grub-stake

contract. It is essential to a right in property under a grub-stake contract that such property

should be acquired by means of the grub-stake furnished and pursuant to the grub-stake

contract. The complaint does not show that the fifty dollars was used in procuring anyportion of the property. (Emery v.Mason, 75 Cal. 222;Millerv.Butterfield, 79 Cal. 62;Berry

v. Woodburn, 107 Cal. 512; Gisua v.Mallory, 84 Fed. 851). It will be thus seen that a

grub-stake agreement is neither alleged nor proved unless plaintiff shows that the property

was acquired by means of the money sent and received. That the counsel had this case in his

mind when he framed the complaint is apparent from the allegations which specifically allege

that this letter enclosing the currency was sent and received, and that Scott was subsisting on

the money at the time of the discoveries alleged.

II. Where the judgment is for too much, the case must be remanded for a new trial.

(Greenleafv.Hill, 30 Me. 165; Frankv.Morrison, 55 Md. 399; Clarkv.Robinson, 15 R. I.

231; 10 Atl. 642.) And in those courts which hold that the appellate court may exercise such

power, it will not do so when the judgment does not show what is the true amount to be paid.

(Seeman v. Feeney, 19 Minn. 79; 5 Minn. 373; 18 N. Y. 522; 9 Misc. N. Y. 698; 30 N. Y.

Sup. 257; 61 N. Y.



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St. 114; 56 Wis. 221; 13 N. W. 925.) In the present case the receiver is, by the judgment,

ordered to render his account for settlement, and until such settlement and allowance of

expenses, fees, etc., the amount due cannot be ascertained. The supreme court will not

undertake to readjust complicated matters of account for the purpose of reforming instead of

revising a judgment. (Williams v.Durst, 35 Tex. 421.) Actions for tort, in cases of excessive

damages, where the amount is reduced, have no application to the present case. A district

judge cannot alter, amend, modify, or correct a judgment entered or rendered by his

predecessor, who tried the case. (Broderv. Conklin, 78 Cal. 365;Mace v. O'Reilly, 70 Cal.

231.) Upon this point we submit the motion for a new trial should have been granted, and we

ask this court to order such new trial (unless it directs judgment in our favor without such

new trial).

III. Another error committed was the admission in evidence against defendants' objection

of the deed by Mays, Scott and Savage to Hidden Treasure Mining Corporation, a

corporation, and also the finding of the court that the plaintiffs were entitled to an undivided

one-sixth interest in the property of this corporation. The deed was signed and deliveredbefore the commencement of the action. The corporation was an innocent purchaser. There

was no evidence of any lispendens having been filed. If there had been, it would only be

notice to purchasers subsequent to the commencement of the trial. The corporation purchased

prior thereto. The object of recording is to give notice to subsequent purchasers. The deed

was valid and binding between the parties. Plaintiffs did not purchase after the conveyance.

By paying full consideration without notice the corporation acquired the legal title, and also

had the superior equity. We are at a loss to understand the position of court and counsel in

this matter, as an innocent purchaser cannot be deprived of his property this way.

IV. The court below assumed, as a matter of course, in this case that it had the right to

pursue the extraordinary course of summarily setting aside the verdict without pursuing the

usual course, viz., entering judgment upon the findings of the jury, and thereafter reviewing

the case on motion IRUDQHZWULDO


for a new trial. In this the court committed error. The court assumed that all the issues were

tendered on the equity side of the court. Such was not the case. The answer raised legal

issues. The main portion of the judgment is devoted to granting legal relief. It affords moneydamages and possession of all the real property in litigationpurely legal remedies. The only

way the judgment could or should be set aside was by ordinary motion for a new trial, in

orderly and usual proceedings, subsequent to judgment. The case was tried as an action at

law. Plaintiffs made no objection to calling a jury or submitting the case to them. As the

record is silent the law presumes they were called by their consent. Out of twenty special

issues plaintiffs prepared, fifteen, at their request, were submitted to the jury. They asked for


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the verdict upon these issues. If the verdict had been favorable to them they would not have

objected. They waited until they found the verdict was against them, and then objected. We

submit that a party cannot blow hot and cold in a court of justice on the same proposition. In

this case the title and possession of real estate was asked for, and direct judgment given for its

recovery. It could be recovered by writ of possession. Direct money damages were given.

They can be recovered by execution. We have given bond to stay execution in the courtbelow. All this relief was obtained in a court of law. Equity acts on the personnot the

property.

V. Unless the case is of exclusive equitable cognizance, the right of jury trial remains.

(Muncie v.Martin, 72 N. E. 882; 123 Fed. 506; 19 How. 271; 13 Wall. 616; 15 Wall. 373;

119 U. S. 347; 138 U. S. 151.) In all cases involving title to money or personal property either

party is entitled to a jury as of right. (Neffv.Manuel, 97 N. W. 73.) Where issues of fact in an

equity case are tried by jury and involve title or damages, the verdict is binding. (Bowles v.

Gandle, 45 S. E. 835.) Where in an action in equity plaintiff tenders issues of damages, the

defendant is entitled to a jury. (Horton v. Simon, 97 N. W. 604.) An action for breach of

contract which involves an accounting is a jury case. (Hoosierv.National, 72 N. E. 473.) A

party cannot, by giving an equitable form to a legal action, deprive his adversary of the ULJKW

WRDMXU\WULDO


right to a jury trial. And legal questions in equity cases should be so tried. (Curtis v. Sutter,

15 Cal. 262; Wiggins v. Williams, 36 Fla. 637; 70 Ind. 490; 15 Mich. 322; 75 Mich. 274; 64

Pa. St. 275; 42 Pa. St. 488; 141 Ill. 308; 32 W. Va. 41; 82 Am. Dec. 530; 13 Am. St. Rep.438; 73 Pa. St. 172.)

McIntosh&Cooke, for Respondents:

I. A partnership formed for mining and trading in California, though not expressed to be

for any definite period, will be presumed to be intended to last at least one mining season, and

cannot be dissolved at will. (Potterv.Moses, 1 R. I. 430.) A partnership for the

accomplishment of certain definite objects, but not expressly specifying any time for its

continuance, is not a partnership at will, within the meaning of the rule just stated, but it is

regarded as a partnership to continue until its purpose is accomplished, or the impracticability

thereof is demonstrated. (22 Am. & Eng. Ency. Law, 2d ed. 205, and note 5.) But as

conclusive of the correctness of the court's finding we refer to the evidence. Scott says in his

very first letter, December 8, 1905: I am satisfied this will make a great camp in the spring.

* * * We will come out all right in the spring. * * * This camp will be a hummer before many

months.

II. The court did only what the established facts compelled it to dofound a general

partnership for mining business. While such partnership was in law subject to be dissolved at

will, such a dissolution must have been made in good faith, on notice at a reasonable time,


34/384

and without any unfair or selfish purpose, and without any purpose of thereby acquiring a

private gain or advantage. (Howell v.Harvey, 39 Am. Dec. 376.)

III. A subpartnership exists where one partner in an existing firm agrees to share his

proportion of the profits with a third person in such a manner as to constitute himself and

such third person partners. Such a contract does not violate the principle ofdelectus

personarum, for it does not make such third person a partner in the original firm. Themembers of the principal firm have no interest in the controversy between members of the

subpartnership. (22 Am. & Eng. Ency. Law, 2d ed. p. 17, notes 7-11, and cases cited;*HRUJHRQ3DUW


George on Part. 75-79;Burnettv. Snyder, 76 N. Y. 344-349, 37 Am. Rep. 527; Fitch v.

Harrington, 74 Am. Dec. 641; Kerrickv. Stevens, 20 N. W. 888; Sears v. Collins, 12 Mg.

Rep. 400.) But independently of the legal effect of partnership relations, dissolution under

reasonable time, conditions, etc., as elaborated on supra, we contend the evidence shows

conclusively that at the very time Scott acquired the Wonder properties, he was actually

subsisting on provisions, moneys and supplies furnished him by plaintiffs.

IV. Counsel concede the power of an equity court; that verdict of jury is merely advisory,

but they claim the action of the court in declining to adopt the findings of the jury was an

abuse of its power, claiming also that some of the findings made by the court were upon no

evidence or slight evidence. If the court has made such findings, counsel's remedy, instead

of railing at the court for not adopting jury findings, is to ask for a new trial on the ground

that the findings are wholly unsupported, and not complicate matters by injecting juryfindings, which, in any view of the case, must be utterly foreign to the matter in hand.

V. The claim that the power of the judge to deny a new trial, should the prevailing party

consent to a modification or reduction, is confined to damage cases and the like, is not correct

under the authorities. (3 Estee, Pl. 485; Pierce v. Payne, 14 Cal. 420; Hayne, New Tr. and

App. 166; 14 Ency. Pl. & Pr. 939.) The contention made by counsel has been before this court

and decided adversely to counsel's position. (Bonelli v.Jones, 26 Nev. 176.) The California

case ofEames v.Haver, 43 Pac. 1120, was an action involving an exchange of corporate

stock, and the value of certain stock, which defendant refused to produce and deliver to the

plaintiff. Judgment went for the plaintiff in the lower court, and on appeal it was found from

the record that the sum of $525 represented an excess, or, as in this case, was included by

error of calculation. The supreme court said, speaking of the lower court having granted a

new trial for this error of calculation: The order granting a new trial should be reversed on

the conditions that, within ten days after filing of the remittitur in the court below, the

appellant remit from the judgment the sum of $525, and pay all costs of this DSSHDO


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appeal. * * * Perhaps the conditions that appellant pay all costs of the appeal would not be

just if he had offered to remit the $525 in the lower court before a new trial was ordered.

And this is exactly what plaintiffs did in the case at baroffered to and did remit the allegedexcess in the lower court before the court passed upon defendants' motion for new trial, and

remittitur was made with approval of lower court, accepted by it, and thereupon motion for

new trial denied.

VI. The decree is none the less final because some future orders of the court may become

necessary to carry it into effect. It is not essential that the judgment settle all the rights of the

parties. If it determines the issues involved in that particular action, it is a final judgment,

though some future orders of the court may be necessary to carry it into effect. The

confusion has sprung up from failing to observe the distinction between the facts and things

to be ascertained preparatory to final decree, and facts and things to be ascertained in

execution of final decree. (Perkins v. SierraNevadaM.Co., 10 Nev. 405.) Where decreedisposes of equities of case, the fact that it reserves jurisdiction to make some future order

necessary to carry the decree into effect does not affect its finality. Where a final order as to

the disposition of matter reserved can have no effect on the decree previously rendered, the

decree is necessarily final, whether such reservation relates to the manner of carrying decree

into execution or ascertainment of the state of the accounts between parties by reference in

accordance with the equities by the decree. (13 Am. & Eng. Ency. Law, 28, 29.) A decree

which decides all the equities involved is not rendered interlocutory because it concludes all

points and questions not herein expressly decided are reserved to the final decree. (Jones v.

Wilson, 54 Ala. 50, cited in 13 Am. & Eng. Ency. Law, 28, note.)

ThomasS.Ford,L.N.French, and T.W.Wampler, for Appellants, in reply:

I. Where a case is tried in the court below upon the theory that the pleadings present

particular issues, the appellate court will not adopt a different theory. (Horton v.'RPLQJXH]&DO


Dominguez, 68 Cal. 642; Tully v. Trainor, 53 Cal. 274; 20 N. Y. 58; 99 Mass. 256; 87 N. Y.

128; 11 Mont. 523.)

II. A plaintiff must frame his pleading with reference to some particular theoretical right

of recovery. (Logansportv. Uhl, 99 Ind. 539.) A complaint cannot be made elastic, so as to

change to the bending views of counsel as the case proceeds. It must proceed to the end, upon

the theory upon which it is constructed. (Toledo v.Levy, 127 Ind. 168.) The prayer of the

complaint does not determine its character, and plaintiff cannot obtain relief upon a different


36/384

theory from that on which his pleadings are based. (Hays v. Fine, 91 Cal. 391; 62 N. Y. 508;

36 N. Y. App. Div. 159.)

III. Counsel cites authorities to the effect that, in an equity case, the court should make

findings. Where the case is one of exclusive cognizance in a court of equity, this is true. We

did not deny the proposition involved. We raised the point that where there was no evidence

to sustain a finding, the making of a finding adverse to the verdict of a jury was an abuse ofthe discretion of the court. Counsel says in the absence of statutory modification, the jury is

not a part of the chancery system. Comp. Laws, 3278, says: Chancery cases may be tried by

the court, with or without the finding by a jury, on issues formed by the court. It was held in

2 Nev. 75, that, where legal and equitable issues arise in the same case, a jury might properly

try the legal issues. As to the legal issues in a chancery case, the verdict is not advisory. It is

compulsory. Counsel cites a number of authorities to the effect that, in a chancery case, the

court below must make its own findings. This is true, as we said, where the issue is purely

one of equitable cognizance. But this is not true where there is an entire want of evidence

upon any issue.

IV. Counsel says that the petition for intervention injected new issues, but the court will

note that the issue of its right to the property was tried against it, just the same as if it hadbeen a party to the action. He further says the filing of the petition would necessitate delay in

trying the action. We are at a loss to understand how that would result when its rights to the

property were tried just the VDPHDVLILWKDGEHHQDOORZHGWRLQWHUYHQH


same as if it had been allowed to intervene. But had the judgment of the lower court notattempted to foreclose the rights of the corporation, or adjudicate its title to its property, the

action of the court, in denying it the right to intervene, might be considered harmless. But to

deny it the right to be heard, and then to adjudicate its rights, is one of the most glaring and

gross instances of depriving a party of its property without due process of law which this

court ever had brought to its attention. This court will look through the record in this case in

vain, to find out why the sales and options made by Scott, Mays and Savage to Rigdon and

others were respected by the judgment and the action of the court below, and the sale made to

the Hidden Treasure Company was made a mark of discrimination, and not only the interest

which Scott formerly held in the real property, but the stock which Scott received for that

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