Nevada Reports 1906-1907 (29 Nev.).pdf

7/28/2019 Nevada Reports 1906-1907 (29 Nev.).pdf

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29 Nev. 1, 1 (1906)

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 of

sentence, or pardon, shall be considered by the board unless presented in the form and mannerrequired 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.

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

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


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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 beconsidered.

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 an

attorney 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 theyare 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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29 Nev. 3, 3 (1906) 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.

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


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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 legislature

during 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 thesame time.

29 Nev. 3, 4 (1906) 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 thelaws, 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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29 Nev. 5, 5 (1906) Rules of State Library

RULES OF STATE LIBRARY.

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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 replacethem 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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29 Nev. 7, 7 (1906) 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

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.


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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\MXULVSUXGHQFH


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

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 by one)


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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, theappeal 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 that the same is in due form;

the fact 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 feestherefor, if the same have been demanded.

RULE IV.

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 the

commencement 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 in width, with a margin of not less than one 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,


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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

transcript, and each tranVFULSWVKDOOEHSUHIDFHGZLWKDQDOSKDEHWLFDOLQGH[VSHFLI\LQJWKH

IROLRRIHDFKVHSDUDWHSDSHURUGHURUSURFHHGLQJDQGRIWKHWHVWLPRQ\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.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 case 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 any

cause in this court, shall, before said cause is submitted, file with the clerk and serve upon the


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

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, respondent shall file and serve his 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\WRILOHSRLQWVDQGDXWKRULWLHVRUEULHIVXQGHUWKHSURYLVLRQVRIWKLVUXOHDQGZLWKLQWKHWLPHKHUHLQSURYLGHGVKDOOEHGHHPHGDZDLYHUE\VXFKSDUW\RIWKHULJKWWRRUDOO\DUJXHWKHFDVHDQGVXFKSDUW\VKDOOQRWUHFRYHUFRVWIRUSULQWLQJRUW\SHZULWLQJDQ\EULHIRUSRLQWVDQG

DXWKRULWLHVLQWKHFDVH


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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 provided, shall be deemed a waiver by

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

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 and

authorities, 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 recordedby 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


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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

court.

RULE XVI.Opinion To Be Transmitted.

Where a judgment is reversed or modified, a certified copy of the opinion in the case shall

be 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 thereof to the opposite party or his

attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall be

substantially 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.


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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.

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 twentymiles 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.

Copy To be ServedTwo Copies To Be Filed.


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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 firsthaving received as a deposit the aforesaid fee.

____________

29 Nev. 17, 17 (1906) 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 hiscounty, upon one of which he shall place all civil causes at issue upon questions of fact as

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 statement


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of 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 allthe 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 FRXUWLQVRPHQHZVSDSHUSULQWHGDQGSXEOLVKHGDWWKHFRXQW\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 by

the 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.

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


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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 stipulationof 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 casemay 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 be

required.

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

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 knownas 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.


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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 thetime 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

motions shall be as follows:

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

admissible 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.


17/419


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 witnesses

than 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

allowed after they have been read, and no argument 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,

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\DJUHHWRWKHLQWHUURJDWRULHVZLWKRXWVXEPLVVLRQWRWKHFRXUWRU

MXGJHRUPD\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


18/419

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 atany 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,

referring to the page and line of the pleading where it is desired that the amendment be

inserted, and, if the pleading were verified, shall verify such amended pleading, or suchproposed amendment, before the application shall be heard.

RULE XVIII.

To Strike Out.

The party moving to strike out any part of a pleading shall, in the notice of motion,

distinctly specify the part asked to be stricken out.

RULE XIX.

Withdrawal of Papers.

No paper or record belonging to the files of the court shall be taken from the office andcustody of the clerk, except upon the special order of the judge in writing, specifying the

record or paper, and limiting the time the same may be retained; but in no case shall original

documentary evidence be taken from the office of the clerk.

RULE XX.

Additional UndertakingAttachments.

If the undertaking required before issuing a writ of attachment is shown to the satisfaction

of the court or judge, upon proper notice, to be insufficient to secure the party whoseSURSHUW\LVDWWDFKHGDJDLQVWGDPDJHVWKHFRXUWRUMXGJHPD\UHTXLUHDQDGGLWLRQDO

XQGHUWDNLQJWREHILOHGDQGLIQRWILOHGWKHDWWDFKPHQWVKDOOEHGLVVROYHG


property is attached, against damages, the court or judge may require an additional

undertaking to be filed, and if not filed, the attachment shall be dissolved. No attachment

shall be dissolved by reason of any defect in the attachment papers that can be amended


19/419

without affecting the substantial rights of the parties.

RULE XXI.

Trials.

Upon a reference to try all the issues, both of fact and law, and to report a judgment

thereon, the referee shall set forth in his report the facts found and conclusions of lawseparately, and shall, upon the day when his report is filed, serve upon the respective parties,

or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of

notice and motion for new trial shall not be deemed concluded until such notice is served.

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 to

the 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, underthe 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 theanswer, 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[DPLQHDQGUHSRUWZKHWKHUWKHPRUWJDJHGSUHPLVHVFDQEHVROGLQSDUFHOVLIWKHZKROHDPRXQWVHFXUHGE\WKHPRUWJDJH

KDVQRWEHFRPHGXH


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

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.


20/419

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.

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, orperformance 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 other

party 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[HFXWLRQRURWKHUSURFHHGLQJV


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.


21/419

RULE XXVIII.

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.

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.


22/419

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 noticepublished 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 written

statement 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

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 of

the 539th section of the practice act, to be filed in the office of the clerk of this court withinfifteen 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.


23/419

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 hear

objections to instructions, and will, when practicable, settle the instructions in advance of the

argument, 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 orproceeding, demurrer or motion, or made any ruling, order or decision therein, no other judgeVKDOOGRDQ\DFWRUWKLQJLQRUDERXWVDLGFDXVHSURFHHGLQJGHPXUUHURUPRWLRQXQOHVVXSRQWKHZULWWHQUHTXHVWRIWKHMXGJHZKRVKDOOKDYHILUVWHQWHUHGXSRQWKHWULDORUKHDULQJRIVDLGFDXVHSURFHHGLQJGHPXUUHURUPRWLRQ


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


24/419

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 after

service of the complaint, file and serve his answer, in which answer he shall set forth the factsupon 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.


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 such

counties.

RICHARD RISING,

Presiding District Judge.

R. R. BIGELOW,

A. L. FITZGERALD,

District Judges.


25/419

____________

29 Nev. 43, 43 (1906)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

JANUARY TERM, 1906.

____________

29 Nev. 43, 43 (1906) State v. Lovelace

[No. 1679.]

THE STATE OF NEVADA, Respondent, v. PAUL

LOVELACE, Appellant.

BurglarySufficiency of IndictmentLanguage Thereof.

1. The said Paul Lovelace did in the night time of the 11th day of May, 1904, or in the night time of some day

thereabouts, to the said 11th day of May, 1904, enter, etc., would sufficiently comply with the statute to

constitute the charge of burglary. The authorities show that courts should give a liberal interpretation of

indictments to uphold the same rather than a rigid interpretation.

2. That the mere grammatical, punctuational (if verbal free coinage may be here allowed), rhetorical or

linguistic error does not always vitiate, is fully sustained by decisions of courts and text-writers.

Appeal from the District Court of the Fourth Judicial District of the State of Nevada, Elko

County; George S. Brown, Judge.

Paul Lovelace was convicted of the crime of burglary, and he appeals. Affirmed.

The facts sufficiently appear in the opinion.


26/419


William Woodburn, for Appellant:

I. The indictment is not good at common law. The time of the commission of the crime

charged in the indictment is in the following words: The said Paul Lovelace on the 11th day

of May, 1904, in the night time of said day, or thereabouts, in the County of Elko, State of

Nevada, without authority of law and before the finding of this indictment, did wilfully,

unlawfully and burglariously break and enter the building of one Alexander Burrell.

Appellant claims that this indictment is not good at common law because the words or

thereabouts relate to and qualify the words night time. If the words or thereabouts had

been inserted after the words on the 11th day of May, 1904, the indictment could not be the

subject of criticism or assault. If the indictment read that on the 11th day of May, 1904, in the

night time, or thereabouts, of said day, the fair construction is that the burglary may be

committed near or about the night time, which would make the indictment fatally defective.

The offense of burglary must be committed in the night time, and not near or about the night

time, and should be alleged with certainty. The night time consists of the period from thetermination of daylight to the earliest dawn of the morning. (Whart. Crim. Law, 8th ed. 807;

State v.Bancroft, 10 N. H. 105.) Burglary in the night time does not include burglary in the

daytime. (State v.Behee, 17 Kan. 402; State v.Alexander, 56 Mo. 131; Williams v. State, 46

Ga. 212.) If language employed in charging part of indictment be capable of two

interpretations the indictment is bad. (People v. Williams, 36 Cal. 671.) The words or

thereabouts cannot be rejected as surplusage. (People v.Myers, 20 Cal. 76.)

II. On the trial of appellant the deposition of one Ross, taken at the preliminary

examination, was read in evidence, because he broke jail and escaped before the trial and his

presence could not be procured. He testified that he and appellant entered the store of

Alexander Burrell on the day named in the indictment, stole a lot of amalgam of the value of

about $2,400, and buried it a short distance from the scene of the crime. Appellant claims

there was no testiPRQ\FRUURERUDWLYHRIWKDWRI5RVVDQGWKDWDFRQYLFWLRQFRXOGQRWEH

KDG


mony corroborative of that of Ross, and that a conviction could not be had. (Sec. 4330,

Comp. Laws.)

James G. Sweeney, Attorney-General, and Charles B. Henderson, for Respondent:

I. Section 4206 of the Compiled Laws of Nevada (Section 241 of Criminal Practice Act)

says: The words used in an indictment shall be construed in the usual acceptance in common

language, except such words and phrases as are defined by law, which are to be construed

according to their legal meaning. As the words or thereabouts are not defined by law, we

must therefore construe them in their usual acceptance in common language. It is manifest


27/419

that the intention of the pleader was to charge the forcible breaking and entering in the night

time of the 11th day of May, 1904, and that is what any person of common understanding

would construe it to mean, but counsel for appellant contends that, under a strict grammatical

analysis, it means that defendant forcibly broke and entered the building in the night time or

thereabouts. In order to reach this construction, he reads the indictment as if the words or

thereabouts immediately followed the words night time instead of the words said day,when the words or hereabouts, taken in their usual acceptance in common language, related

to the 11th day of May, 1904, and not to any particular hour or part of that day, for, had the

evidence shown that the forcible breaking and entering was on the 9th day of May, 1904, the

indictment would still have been good, because it would have still been in the night time of

said day.

II. The most that can be said against the use of these in the indictment and in the place that

they are is that it makes the language of the indictment rather awkward, but the criticism that

would deprive it of any meaning whatever or of such a meaning as to wholly destroy the

indictment is too broad. It is a more reasonable construction to simply reject the words or

thereabouts as wholly unnecessary to its sense, or construe them as relating to the 11th day

of May, 1904. There is nothing to perplex one of ordinary understanding, nor to injure thisappellant. If error at all, LWLVKDUPOHVVHUURUDQGFDQEHWUHDWHGDVPHUHVXUSOXVDJHIRUWKLVDSSHOODQWFRXOGQRWKDYHEHHQSUHMXGLFHGDWDOO


it is harmless error, and can be treated as mere surplusage, for this appellant could not have

been prejudiced at all.

By the Court, Fitzgerald, C. J.:

Defendant appeals from a judgment rendered against him in the district court in and for

Elko County for the crime of burglary; and he assigns two reasons why, as he claims, the

judgment should be reversed:

First, the insufficiency of the indictment on which the judgment was based; and

Second, the absence of corroboration of the testimony of an accomplice who testified

against the defendant.

Under the first head the point made is on the proper interpretation of the following clause

in the indictment: The said Paul Lovelace on the 11th day of May, 1904, in the night time of

said day, or thereabouts, in the County of Elko, State of Nevada, without authority of law,

and before the finding of this indictment, did wilfully, unlawfully, and burglariously break

and enter the building of one Alexander Burrell.

Counsel for defendant in his or theirbrief, if an unsignedpaper in the usual form of a brief

found among the papers in the case as they appear filed in this court is by us treated as a brief,

say:

Appellant claims that this indictment is not good at common law because the words or


28/419

thereabouts' relate to and qualify the words night time.' This question was not raised in the

court below, but is here presented for the first time. The question is not whether this

indictment would be good at common law. It is whether it is good under the statute of

Nevada that governs the subject. The subject is governed by the sections following

concerning indictments:

Section 4199, Comp. Laws, provides that the indictment shall contain a statement of theacts constituting the offense, in ordinary and concise language, and in such manner as to

enable a person of common understanding to know what is intended.

Section 4206, Comp. Laws, has the following: The words used in an indictment shall be

construed in the usual DFFHSWDQFHLQFRPPRQODQJXDJHH[FHSWVXFKZRUGVDQGSKUDVHVDV

DUHGHILQHGE\ODZZKLFKDUHWREHFRQVWUXHGDFFRUGLQJWRWKHLUOHJDOPHDQLQJ


acceptance in common language, except such words and phrases as are defined by law, whichare to be construed according to their legal meaning.

Section 4208, Comp. Laws, provides: SixthThat the act or omission charged as the

offense is clearly and distinctly set forth in ordinary and concise language, without repetition,

and in such manner as to enable a person of common understanding to know what is

intended.

Section 4209 is as follows: No indictment shall be deemed insufficient, nor shall the trial,

judgment, or other proceeding thereon be affected by reason of any defect or imperfection in

matters of form which shall not tend to the prejudice of the defendant.

The foregoing enactments show that it was the intention of the Legislature of Nevada that

in construing indictments the courts should not indulge in a too exact and over-nice view of

language; but that certainty to a common intent was all that should be required.True, in the paragraph of the indictment under discussion there is something of a departure

from the best models of grammatical, rhetorical, or linguistic expression. But we think the

paragraph meets the requirement of the statute that the acts constituting the offense should

be charged in ordinary and concise language, and in such manner as to enable a person of

common understanding to know what is intended. To hold the indictment not fatally bad is,

we think, to keep within the statutory command, as expressed above in Section 4206, or at

least not to depart too far from such command, to wit, to construe in the usual acceptance in

common language.

We think the defect of the indictment complained of was such as in the language of

Section 4209, above quoted, was a defect or imperfection in matters of form, which did nottend to the prejudice of the defendant.

The language of the indictment could doubtless be made more accurate; but we think it is

not fatally defective. In the brief of counsel for defendant the following correction is offered:

If the words or thereabouts' had been inserted after the ZRUGVRQWKHWKGD\RI0D\WKHLQGLFWPHQWFRXOGQRWEHWKHVXEMHFWRIFULWLFLVPRUDVVDXOW


29/419


words on the 11th day of May, 1904,' the indictment could not be the subject of criticism or

assault.

Perhaps the following phraseology might be considered an improvement on the

phraseology of the indictment: The said Paul Lovelace did in the night time of the 11th day

of May, 1904, or in the night time of some day thereabouts, to the said 11th day of May,

1904, enter, etc.

Said Paul Lovelace did, in the night time, on or about the 11th day of May, 1904, * * *

enter, etc., * * * might perhaps be considered a still better collocation of words, although

this is something of a departure from the form suggested in the statute concerning the form of

indictments.

That mere grammatical,punctuational (if verbal free coinage may be here allowed),

rhetorical, or linguistic error does not always vitiate, is fully sustained by decisions of courts

and text-writers. The following notably excellent authority is cited to sustain this doctrine:

Cyclopedia of Law and Procedure (Cyc.) vol. 6, p. 199, and authorities there mentioned.While this indictment in the respect mentioned is in truth inartistically drawn, yet, under

the statutes and the authorities above stated, we cannot say that it is fatally defective. The

sections of the statute above quoted show the legislative intent was that the courts of the state

should give interpretations liberal to sustain rather than rigid to overthrow indictments, when,

as in this case, substantial rights of defendants are not thereby prejudiced; and, as we have

from the authority mentioned seen, even under the common law to overthrow this indictment

would seem too rigid an interpretation.

Under the second head the error claimed is stated in the brief of counsel for defendant, as

follows:

On the trial of appellant the deposition of one Ross taken at the preliminary examination

was read in evidence, because he broke jail and escaped before the trial, and his presence

could not be procured.

He testified that he and appellant entered the store of Alexander Burrell on the day named

in the indictment, stole a lot of amalgam of the value of about $2,400, and buried it DVKRUW

GLVWDQFHIURPWKHVFHQHRIWKHFULPH


a short distance from the scene of the crime. Appellant claims there was no testimony

corroborative of that of Ross, and that a conviction could not be had.

In this contention counsel is, we think, clearly mistaken. Besides minor points of

corroboration not necessary to mention here, the testimony of the witness W. J. Davidson

corroborates the testimony of the accomplice, Ross. Davidson testifies that defendant

requested him (Davidson) to help him rob the store at Edgemont; that is the store that was

robbed. Davidson further testifies that the defendant told me he would have got the amalgam

if something had not happened; the amalgam was the article stolen in the robbery. Davidson


30/419

further testifies that defendant was trying to dispose of the amalgam, the thing stolen; and

asked Davidson this question: What am I going to do about that damned stuff?

If this testimony was true, and its truth was a question entirely for the jury, there was

corroboration of the testimony of the accomplice, Ross.

Defendant fails in sustaining either of his two points urged in argument for reversal of the

judgment.The judgment is therefore affirmed.

____________

29 Nev. 50, 50 (1906) State v. Grimes

[No. 1683.]

THE STATE OF NEVADA, ex rel. NEVADA TITLE GUARANTY AND TRUST

COMPANY, a Corporation, Relator, v. PUDDY GRIMES, as County Recorder in and

for the County of Nye, State of Nevada, Respondent.

1. RecordsAccess toRights of Abstract Companies. Under sections 2663, 2664, Comp. Laws, providing that

every conveyance of real estate, and every instrument of writing setting forth an agreement to convey any

real estate, or whereby any real estate may be affected, proved, acknowledged, certified, and recorded in

the manner presented, shall from the time of filing the same with the recorder for record, impart notice to

all persons of the contents thereof, and subsequent purchasers and mortgagees shall be deemed to purchase

and take with notice, and under other statutes enumerated, as construed in connection with the common

law, a corporation organized for the purpose of furnishing abstracts and guaranteeing titles may, free of

charge, through its agents and employees, during regular business hours, inspect and make memoranda and

copies of all files and records in the office of the county recorder, in so far as they relate to current

transactions in which it is authorized or employed to make searches, furnish abstracts, or guarantee titles by

persons having, or seeking to acquire, an interest in property; the examination to be made at such times and

under such circumstances as will not prevent the recorder or his assistants from discharging their duties,

nor interfere with the right of other persons to have access to the records.

2. SameCompiling Abstract Books. Under the laws mentioned, relator has not the right to copy or inspect all

records for the purpose of compiling an independent set of abstract books, covering all the property to

which the records relate and for use in equipping an office in opposition to the recorder.

(Syllabus by the Court.)

Original Proceeding. Petition by the State, on the relation of The Nevada Title Guaranty

and Trust Company, for writ ofmandamus to Puddy Grimes, County Recorder of the Countyof Nye. Denied.

The facts sufficiently appear in the opinion.

George S. Green, Alfred Chartz, and T. A. A. Siegfriedt, for Relator:

I. Moreover, it is well settled in law that, in the absence of a statute declaring the right of


31/419

access and inspection, public records are no less subject to such inspection. As said inLum v.

McCarty, 39 N. J. Law, 289, by the court, ZKLFKZDVDFDVHYHU\VLPLODUWRWKHRQHDWEDUDQGLQZKLFKWKHUHZHUHSURYLVLRQVRIVWDWXWHGHFODULQJWKHULJKWRISXEOLFLQVSHFWLRQRIFHUWDLQUHFRUGVDQGVLOHQWDVWRRWKHUVLWLVDOVRVXJJHVWHGWKDWWKHDEVHQFHRIDQ\SURYLVLRQIRUDFFHVVE\WKHSXEOLFWRWKHUHFRUGVRIMXGJPHQWVRIWKHFLUFXLWFRXUWIDYRUV

WKHFKDUJHE\WKHFOHUNVRIDUDVWKHUHFRUGVRIWKRVHMXGJPHQWVDUHFRQFHUQHG


which was a case very similar to the one at bar, and in which there were provisions of statute

declaring the right of public inspection of certain records, and silent as to others, it is also

suggested that the absence of any provision for access by the public to the records of

judgments of the circuit court favors the charge (by the clerk) so far as the records of those

judgments are concerned. The right of the public to free access to the records carries with itthe right to search without charge for the privileges. Nor can a claim on the part of the clerk

to fees for a search not made by himself or his assistant in the records of the judgments of the

circuit court in his office be justified by the fact that no special provision is made for access

by the public to those records. They are no less free to the public by reason of the absence of a

provision declaring the right. They are, in fact, public records, and are public property, kept in

a public place, at the public expense, for the public benefit.

II. As we have said, the statutes of the State of Nevada are sufficient authority upon which

the relator may base its claims to the right of free access and general inspection of all public

records in the office of the respondent. However, independent of any statute declaring such

right or inspection or requiring such record to be kept, the records of a public officer becomesuch public records as are subject to the free and general inspection by the public. (Brown v.

Knapp, 54 Mich. 132; Coleman v. Commonwealth, 25 Grat. Va. 881; State v.Donovan, 10 N.

D. 209; State v. Smith, 74 Iowa, 583; State v. Cummins, 76 Iowa, 136; Parsons v.Randolph,

21 Mo. App. 359;Nash v.Lathrop, 142 Mass. 35;Banks v.Manchester, 23 Fed. 143;Myers

v. Callahan, 20 Fed. 441; Chase v. Sanborn, 4 Cliff. 306;Little v. Gould, 2 Blatchf. 165;

Banks v. West Pub. Co., 27 Fed. 50; Thompson v.Hoblitzelle, 85 Mo. 624.) See, also,Burton

v. Tuite, 78 Mich. 363, 80 Mich. 218;Lum v.McCarty, 39 N. J. Law, 286;Aitcheson v.

Huebner, 90 Mich. 645;Johnson v. Wakulla, 28 Fla. 731, 733; State v.Meeker, 19 Neb. 106;

Speilman v. Flynn, 19 Neb. 346.

III. It should be observed that inspection is only restricted to a particular proceeding where

it is obtained by rule of the court; otherwise when obtained by mandamus; DQGZHKDYHEHHQXQDEOHWRILQGDQ\FDVHZKDWVRHYHU(QJOLVKRU$PHULFDQLQZKLFKDQLQVSHFWLRQZDVGHQLHGWRDQ\RQHZKRKDGDVSHFLDOLQWHUHVWLQWKHVXEMHFWPDWWHURIWKHUHFRUGDQGZH

FKDOOHQJHFRXQVHOIRUWKHUHVSRQGHQWWRILQGDQ\



32/419


33/419

the spirit and general policy of the law, or with the claims of business convenience. The great

utility of the professional examiner is a recognized fact, and, with the constantly increasing

complications of land titles, his assistants in their proper adjustment has, in many localities,

become an absolute necessity.

VI. For consideration of the rights of the public in public offices in extreme cases, see

O'Hara v. King, 52 Ill. 303; Parsons v.Randolph, 21 Mo. App. 353.

William Forman, for Respondent:

I. At common law the right to inspect public records, either in person or by an agent, was

confined to those who had an interest in the subject-matter to which the record related. While

it seems that a person seeking an inspection of public records must have such an interest as

will enable him to maintain and defend an action for which the document can furnish

evidence or necessary information, it is not necessary that a case be pending at the time, nor is

it even essential that the interest of such person be private so that he can maintain an action or

defense on his own personal EHKDOIEXWLWZLOOEHVXIILFLHQWWKDWKHFDQSURSHUO\DFWLQ

VRPHDFWLRQLQUHODWLRQWRWKHPDWWHUDVWKHUHSUHVHQWDWLYHRIWKHFRPPRQRUSXEOLFULJKW


behalf; but it will be sufficient that he can properly act in some action in relation to the matter

as the representative of the common or public right. (Ency. Law, 2d ed. vol. 24, p. 182;Rex v.

Merchant Tailors Co., 2 B. & Ad. 115;Brewerv. Watson, 71 Ala. 299;Daily v.Dimock; 55

Conn. 579; State v. King, 154 Ind. 621; Cormackv. Wolcott, 37 Kan. 391; People v. Walker,

9 Mich. 328; People v. Cornell, 35 How. 31; Owens v. Woolridge, 8 Pa. Dist. 305; Caswell's

Request, 18 R. I. 835.)II. The right to inspect public records is not absolute and unrestricted, but must be

exercised subject to such reasonable restrictions as may be imposed by statute or by the

custodian of the records. (Stockman v.Brooks, 17 Colo. 248; Upton v. Catlin, 17 Colo. 546;

Buckv. Collins, 51 Ga. 395;Day v.Button, 96 Mich. 600;Burton v. Tuite, 78 Mich. 363;

Burton v.Reynolds, 102 Mich. 55; State v.Rachac, 37 Minn. 372;Hanson v.Eichstaedt, 69

Wis. 538.)

III. The right of an abstracter or abstract company incorporated for the purpose of

preparing abstracts from the various counties of the state does not seem to have ever been

passed upon by the courts of this state, and there is no power conferred by statute directly

authorizing the inspection of the public records and copying the same by such persons orcorporations. In the absence of any statute authorizing the copying of the records by such a

person or company the court must be governed by common-law rule in regard to the same.

Section 3095, Comp. Laws, is as follows: The common law of England, so far as it is not

repugnant to or in conflict with the constitution and laws of the United States or the

constitution and laws of this state shall be the rule of decision in all courts of this state.

There are various statutes providing for the inspection of certain records by the public, but no

statute conferring upon an individual the right to inspect, search, or copy the records of the


34/419

county, such as is conferred by the statutes of the various states, which have held that an

abstracter corporation chartered for the purpose of making abstracts might examine and copy

the records.


George S. Green, Alfred Chartz, and T. A. A. Siegfriedt, for Relator, in reply:

I. The only statutory provision cited by the respondent in support of his contention is at

the bottom of page 17 and the top of page 18 of his brief, which provides certain fees for

making abstracts of title and searches of the records. Apparently it is not pretended by the

respondent that there are any provisions in the laws of Nevada making it his duty to compile

abstracts of title, and we have failed to find any. The qualifications of searchers of records are

not mean, and a candidate for the office of recorder is not bound to qualify with respect to

them. Recorders are not to be presumed to know the requisites of a sufficient abstract of title;on the contrary, it is probable that one who enters upon the duties of the office of recorder

would more often not know than know. And not being his duty as required by law, he could

not be compelled to furnish an abstract if he should refuse.

II. Further reference is hereby made to statutes of the State of Nevada allowing the free

inspection of public records. (Stats. 1897, p. 78, sec. 3; Stats. 1891, p. 97, sec. 6; Stats. 1866,

p. 202, sec. 8; Comp. Laws, 1613.) For further support of the doctrine that the fee of an

official attaches only upon having performed some service for the individual, see Williams v.

State, 2 Sneed, 162;Henderson v. State, 96 Ind. 441.

By the Court, Talbot, J.:

To what extent is a company engaged in the business of furnishing abstracts and

guaranteeing titles allowed to inspect, examine, and copy the records in the office of the

county recorder, without the payment of fees, is the question presented.

From the petition, answer, and agreed statement of facts it appears that the respondent, as

county recorder, has refused, and unless ordered by this court will continue to refuse, to allow

the relator, or its duly authorized secretary and general manager, either for itself or as agent

for the owner of the property, to inspect, copy, or make memoranda RIWKHUHFRUGRIDVSHFLILHGFHUWLILFDWHRIPLQLQJORFDWLRQDQGRIDFHUWDLQGHHGDQGWKHRWKHUUHFRUGVLQWKHRIILFHRIWKHFRXQW\UHFRUGHURI1\H&RXQW\WKDWWKHUHODWRUVHHNVDQGKDVGHPDQGHGWRLQVSHFWDQGFRS\WKHVHUHFRUGVIUHHRIFKDUJHIRUWKHSXUSRVHRIFRPSLOLQJDQ

LQGHSHQGHQWVHWRIDEVWUDFWERRNVFRYHULQJDOOWKHSURSHUW\SHUWDLQLQJWRWKHVHUHFRUGVZLWKWKHLQWHQWLRQRIVXSSO\LQJDQGVHOOLQJDEVWUDFWVWRLWVFXVWRPHUV


of the record of a specified certificate of mining location, and of a certain deed and the other


35/419

records in the office of the county recorder of Nye County; that the relator seeks, and has

demanded, to inspect and copy these records free of charge for the purpose of compiling an

independent set of abstract books covering all the property pertaining to these records with

the intention of supplying and selling abstracts to its customers.

Respondent was and is willing to permit relator's agent to inspect the records for his

personal use and information, provided that he does not take any compensation or fees fromany other person for so doing, but refuses to allow him or the relator to inspect or copy the

records or the use of relator in preparing abstracts, except upon payment of the fees allowed

by law for making abstracts.

The relator, in the pursuit of its abstracting, record searching, and title guaranty business,

and for the purpose of preparing a set of abstract books, had engaged one man continuously

for three or four months in searching these records, taking memoranda and making copies,

and, if permitted, will continue for three or four months to keep one or more men engaged in

copying, searching, and taking memoranda, and, when the abstract books of relator are

completed, relator will demand the right to inspect and take memoranda from the records of

all conveyances thereafter filed, for the purpose of keeping up to date its abstract books and

for its use in compiling abstracts of title.Relator claims that under our statutes and also under the common law it has a right to

examine and copy all these records. Respondent challenges both these contentions, and

asserts that, as no such privilege is conferred by statute, the common law controls and limits

the right of inspection to persons having an interest in the subject-matter to which the record

relates.

In seeking light and authority on these propositions, we first turn to the statutes, and find

provided in the Compiled Laws:

Sections 2663 and 2664: Every conveyance of real estate, and every instrument of writing

setting forth an agreement WRFRQYH\DQ\UHDOHVWDWHRUZKHUHE\DQ\UHDOHVWDWHPD\EH

DIIHFWHGSURYHGDFNQRZOHGJHGFHUWLILHGDQGUHFRUGHGLQWKHPDQQHUSUHVFULEHGVKDOOIURPWKHWLPHRIILOLQJWKHVDPHZLWKWKHUHFRUGHUIRUUHFRUGLPSDUWQRWLFHWRDOOSHUVRQVRIWKHFRQWHQWVWKHUHRIDQGVXEVHTXHQWSXUFKDVHUVDQGPRUWJDJHHVVKDOOEHGHHPHGWR

SXUFKDVHDQGWDNHZLWKQRWLFH


to convey any real estate, or whereby any real estate may be affected, proved, acknowledged,

certified and recorded in the manner prescribed, shall from the time of filing the same with

the recorder for record, impart notice to all persons of the contents thereof; and subsequent

purchasers and mortgagees shall be deemed to purchase and take with notice.Section 2715: A mortgage upon possessory claims to public lands, all buildings and

improvements upon such lands, all quartz and mining claims, and all such personal property

as shall be fixed in its structure to the soil, acknowledged in manner and form as mortgages

upon real estate are required by law to be acknowledged and recorded in the office of the

county recorder in which the property is situated, shall have the same effect against third

persons as mortgages upon real estate.


36/419

Section 2705 directs the several county recorders to procure suitable books at the expense

of the county in which all chattel mortgages shall be recorded, and provides that such books

shall, at all times, be open to the public for inspection.

Section 2718: All instruments of writing now copied into the proper books of record of

the office of the county recorders of the several counties of this territory, shall, after the

passage of this act be deemed to impart to subsequent purchasers, and all other personswhomsoever, notices of all deeds, mortgages, powers of attorney, contracts, conveyances or

other instruments, notwithstanding any defect, omission, or informality existing in the

execution, acknowledgment or certificate of recording the same.

Section 2730