[Rev. 5/3/2022 8:47:16 PM]
κ1869 Statutes of Nevada, Page 173 (CHAPTER 101)κ
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shall be raised to furnish additional school facilities for said district, or to keep any school or schools in such district open for a longer period than the ordinary funds will allow, or for building an additional school house or houses, or for any two or all of these purposes. Such election shall be called by posting notices in three of the most public places in the district for twenty days, and also, if there be a newspaper in the county, by advertisement therein once a week for three weeks. Said notices shall contain the time and place of holding the election, the amount of money proposed to be raised, and the purpose or purposes for which it is intended to be used. The Trustees shall appoint three Judges to conduct the election, and it shall be held in all other respects, as nearly as practicable, in conformity with the general election law. At such election the ballots shall contain the words Tax, Yes, or Tax, No. If a majority of the votes cast are Tax, Yes, the officers of the election shall certify the fact to the County Commissioners, together with a statement of the amount of money proposed to be raised, who shall ascertain the necessary percentage on the property of said district, (as shown by the last assessment made thereof, after equalization) to raise the amount of money voted, and shall add it to the next county tax, to be collected on the property aforesaid. The same shall be paid into the County Treasury as a special deposit in favor of said school district, to be drawn in the same manner as the other school moneys. Sec. 12. Section thirty-six of said Act is hereby amended so as to read as follows: Section Thirty-six. If for any reason said tax is not added to the county tax by the County Commissioners, the County Auditor shall enter it on the assessment roll to be charged against the property of that district, on application from the Trustees of said district. Sec. 13. Section thirty-seven of said Act is hereby amended so as to read as follows: Section Thirty-seven. All taxes assessed as in this Act provided shall constitute a lien on the property charged therewith, from the date of the levy thereof by the County Commissioners, or entry thereof on the assessment roll by the County Auditor, until the same are paid, and their payment if allowed to become delinquent shall be enforced in the same manner. Sec. 14. Section thirty-eight of said Act is hereby amended so as to read as follows: Section thirty-eight. After a school shall have been maintained free to all pupils six months of the current school year, the Trustees of any district shall have power, at their discretion, to assess such rate bills of tuition as they may deem necessary for the payment of teachers salaries, in addition to the public moneys of such district. Said rate bills of tuition shall be made out by said Board of Trustees against all persons sending children to school, in proportion to the number of children sent, and the time of attendance of said children; and the Board of Trustees shall exempt such indigent persons from the payment of such rate bills as they may consider entitled to such exemption. Any person refusing or neglecting to pay said bills shall be excluded from the benefits of said school in such manner as the Board of Trustees, with the advice and consent of the public school teachers, may determine. Sec. 15. Section thirty-nine of said Act is hereby amended so as to read as follows: |
Notice.
Ballots.
Duty of Commissioners.
When County Auditor to enter tax on Assessment Roll.
Taxes to be a lien on property.
Rate-bills of tuition |
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Organization of new School Districts.
Board of Examination.
When District not entitled to receive money. |
Section Thirty-nine. Whenever at least ten heads of families petition the County Superintendent for the organization of a new school district, or a subdivision of or change in the boundaries of an old one, that officer shall transmit the petition to the Board of County Commissioners, with the approval or disapproval of the proposition indorsed thereon. Upon receiving any such petition, the said Commissioners shall have power to establish, alter, or modify the district or districts, in accordance with the prayer of the petition; provided, however, that if the Superintendent disapproved, then said Commissioners shall give at least one months notice to the district or districts affected by the change, in such manner as the Commissioners may order; and then, by vote of said Board of Commissioners, the petition may be granted; and, provided further, that no district shall be considered as being organized, or be entitled to any pro rata of moneys standing to the credit of the district from which it was separated, or of which it is a subdivision, until a public school has been actually commenced in such new district; and, provided further, that unless such new school district shall commence a school within sixty days from the action of the Board of Commissioners making such new district, such action shall become void, and no such district shall exist. Sec. 16. Section forty-one of said Act is hereby amended so as to read as follows: Section Forty-one. The County Superintendent of Public Schools shall appoint three competent persons in each county within the State, who shall be and constitute a Board of Examination for the purpose of examining applicants and granting certificates of qualification to teachers of public schools. They shall meet at such times and places as the interests of the public may require, and be governed by such rules and regulations as the State Board of Education may from time to time direct. They shall only grant certificates (except as hereinafter provided) to such persons as shall pass a satisfactory examination; which certificate shall remain in force, as specified in this section, unless revoked for good cause shown. Said Board of Examiners shall have power to grant certificates of the following grades: Certificates of the first grade, for teaching unclassified grammar and high schools, which shall be good for two years; certificates of the second grade, for teaching primary schools, which shall be good for one year. Said certificates shall be issued to such persons only as have passed a satisfactory examination in the branches of study pursued in each specified grade of the public schools, and shall have given evidence of good moral character, and fitness to teach; and such certificate shall be signed by a majority of the Board examiners. Said Board shall have power to renew the certificate of a teacher who is successfully and continually engaged in teaching in the county, without a re-examination. Sec. 17. Section forty-eight of said Act is hereby amended so as to read as follows: Section Forty-eight. No school district, except when newly organized, shall be entitled to receive any portion of the public school moneys, in which there shall not have been taught a public school for at least three months within the year ending the last day of August previous; and no public school shall receive any moneys, benefits or immunities under the provisions of this Act, unless such school shall have been instructed by a teacher or teachers duly examined, approved and employed by legal authority, as herein provided. When a new district is formed by the division of an old one it shall be entitled to a just share of the school moneys to the credit of the old district, |
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share of the school moneys to the credit of the old district, after the payment of all outstanding debts at the time when a school was actually commenced in such new district; and the County Superintendent shall divide and apportion such remaining moneys according to the number of census children resident in each district, for which purpose he may order a census to be taken, the expenses of which shall be met as provided in section thirty-two. Sec. 18. Section fifty-six of said Act is hereby amended so as to read as follows: Section Fifty-six. Each village, town or incorporated city of this State shall constitute but one school district, and the public schools therein shall be under the supervision and control of the Trustees thereof; provided, in all such villages, towns and cities, wherein the aggregate number of registered votes thereof at the last previous general election exceeds fifteen hundred, there shall be elected five (5) instead of only three Trustees. |
New District entitled to portion of money.
Each Village, etc., to constitute one District. Proviso. |
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Chap. CII.An Act to Incorporate Shermantown, Lander County.
[Approved March 6, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. For the purposes hereinafter mentioned, the inhabitants of that portion of Lander County embraced within the limits hereinafter set forth in this section, shall be a body politic and corporate, by the name and style of the Inhabitants of Shermantown, and by that name they and their successors shall be known in law, have perpetual succession, sue and be sued, in all the Courts. The boundaries of said incorporated city shall be as follows, viz: Beginning at a point below the present surveyed town site of Silver Springs, and known as the Golden Gate; thence, following the crest of the hills lying immediately east of the town, in as nearly a direct line as may be in a northerly direction to the mouth of the Canon, just below the junction of the public road from Treasure Hill with Gries and Rices toll road; thence in a southerly direction to a point known as Chimney Rock; thence, due south to a point due west from the Golden Gate; thence, due east to the Golden Gate, or place of beginning. Sec. 2. The corporate powers of said city shall be vested in a Board of Trustees, to consist of five members, who shall be resident householders of said town. In addition to said Trustees, there shall be a Treasurer, Assessor and Marshal elected by the qualified electors of said town. Sec. 3. The said officers shall hold their offices for the term of one year, and until their successors are elected and qualified, except as hereinafter provided. Sec. 4. No person shall be eligible to the office of Trustee, Treasurer, Assessor, or Marshal, who shall not be a qualified elector of the State of Nevada, and who shall not have actually resided at Shermantown for three months next preceding the elections. |
Shermantown incorporated.
Boundaries.
Corporate powers vested in Board of Trustees, etc.
Term of office.
Ineligible to office. |
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Qualification of elector.
General election.
Laws applicable to elections.
Elections.
Canvass.
Sealed packages.
To qualify and enter on duties.
President;
Vacancies.
Meetings.
Quorum. |
urer, Assessor, or Marshal, who shall not be a qualified elector of the State of Nevada, and who shall not have actually resided at Shermantown for three months next preceding the elections. Sec. 5. No person shall be allowed to vote at any election for said officers who shall not be a qualified elector of the State of Nevada, and shall not have actually resided at Shermantown for three months next preceding the election. Sec. 6. The general election shall be held on the first Monday of June of each year. Sec. 7. All the provisions of law now in force, and of all laws which may be hereinafter enacted, regulating elections in the State of Nevada, so far as the same are consistent with the provisions of this Act shall apply to the election of officers herein provided for. The Board of Trustees of Shermantown shall for each election, at least three days prior to the same, appoint three judges, and shall designate the place for opening the polls. Within two days after each election, the judges and clerks of the same shall make out, sign, and deliver to such of the Trustees receiving the highest number of votes certificates of their elections to said office. Immediately after the votes are counted the said judges and clerks shall make out a statement of the number of votes cast for the offices of Trustee, Treasurer, Assessor and Marshal, and for each person severally, which statement shall be certified under oath by the majority of said judges, and they shall cause the same, together with the poll list and votes duly sealed up, to be delivered to the Board of Trustees of said town within two days after said election. Within two days after the receipt of the same the said Board of Trustees shall proceed to ascertain from said statement what persons have received the highest number of votes for the offices of Treasurer, Assessor, and Marshal; and a certificate of election shall be issued by the clerk, under the direction of said Trustees, to the person receiving the highest number of votes for each of said offices, respectively. The clerk of said Board of Trustees shall keep the sealed packages containing the ballots and poll lists for thirty days, when, if no notice of any contested election shall have been given, he shall destroy the same. Sec. 8. The Trustee, Treasurer, Assessor and Marshal chosen at any election shall be qualified and enter upon the discharge of their duties within one week after being notified of their election, and in case any Trustee, Treasurer, Assessor or Marshal shall fail to qualify within said time, his office shall be deemed vacant. All officers before entering upon their official duties shall take the official oath prescribed by law. Sec. 9. The Board of Trustees so elected shall, at their first meeting, or as soon thereafter as may be, elect one of their number as President, who shall preside at all meetings when present, and discharge such other duties as may be prescribed by the Board of Trustees. Sec. 10. When a vacancy shall occur in the office of Trustee, Treasurer, Assessor or Marshal, the Board of Trustees shall appoint some person to fill such vacancy, and such person so appointed shall hold his office for the residue of the term of said predecessor. Sec. 11. The Board of Trustees shall have regular meetings, at least once each week, and such other meetings as by adjournment or resolution they may direct; and the President shall have power to call special meetings whenever he deems the same necessary. Sec. 12. A majority of the Board of Trustees shall constitute a quorum to transact business. |
κ1869 Statutes of Nevada, Page 177 (CHAPTER 102)κ
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Sec. 13. The Board of Trustees shall determine rules for the government of their own proceedings, and shall be judges of the election and qualifications of their own members. All the meetings shall be public, except when the Board shall deem that the interest of the town requires secrecy. A journal of all proceedings of the Board shall be accurately kept by the Clerk, and the yeas and nays shall be taken and entered upon the journal upon the passage of any question, at the request of any member. Sec. 14. The Board of Trustees shall have power: First-to make by-laws and ordinances not repugnant to the constitution or laws of the State of Nevada. Second-to levy and collect taxes upon all property within the city, both real and personal, made taxable by the laws of the State of Nevada for State and county purposes, which are now in force, or which may hereafter be enacted, except the proceeds of mines, which shall not be subject to taxation; which tax shall not exceed one and one-half per cent. per annum upon the assessed value of all property. Third-to lay out, extend, open, alter and repair the streets and alleys, and provide for the grading, draining, cleaning, widening and lighting, or otherwise improving the same; also, to provide for the construction, repair and preservation of sidewalks, bridges, drains and sewers, and for the prevention and removal of obstructions from the streets and sidewalks, and in the creation of sidewalks and making other improvements; to compel the owners of lots and property to bear the expense of erecting sidewalks, or creating improvements in front of the same, by special tax or otherwise. Fourth-to provide for the prevention and extinguishment of fires; also, to organize, regulate, establish and disband fire companies. Fifth-to regulate the storage and sale of gunpowder and all other explosive or combustible material. Sixth-to prevent and remove nuisances; also, to determine what are nuisances. Seventh-to elect a Clerk, and create and fill the additional offices of City Attorney and City Recorder, and such other offices as they may deem necessary for the public interests, whenever in the opinion of a majority of said Board the exigencies of the times require such offices; and to provide for the election of all officers that may be appointed under this provision. All officers appointed by the Board shall hold their respective offices until the general municipal election, and until their successors are elected and qualified, unless they shall be sooner removed, for misconduct in office, neglect of duty, or other causes, or said office be abolished. Eighth-to create and establish a City Police, and prescribe their duties, and fix their compensation, and provide for the regulation and government of the same. Ninth-to fix and collect a license tax on, and regulate all theaters and theatrical performances, shows, circuses, billiard-tables, bowling-alleys, and all exhibitions and public amusements; to fix and collect a license tax on and regulate all hotels, restaurants, lodging-houses, chop-houses, saloons, bar-rooms, bankers, brokers, gold dust and bullion buyers, manufacturers, livery stables, express companies, and persons engaged in the business of transmitting letters or packages; to fix and collect a license tax on and regulate auctioneers, stock-brokers, drays, job-wagons and stage companies or owners, whose place of business is in said town, or who shall have an agency therein; to license, tax and regulate, or prohibit and suppress all tippling-houses, dram-shops, raffles, hawkers, peddlers, pawnbrokers, hurdy-gurdy houses and public dance-houses; to fix and collect a license tax on all professions, trades or business not hereinbefore specified, having due regard to the amount of business done by each person or firm thus licensed. |
Rules, etc.
Powers of Board. Taxes.
Streets, etc.
Fires. Gunpowder.
Nuisances. Clerk, etc.
Police.
Licenses. |
κ1869 Statutes of Nevada, Page 178 (CHAPTER 102)κ
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Issuance of Licenses.
Dogs.
Public buildings. Board of Health. Riots.
Gunpowder, etc.
Wards.
Fines.
Salaries. Proviso. Absent members.
Contracts.
Gold coin. Ordinances, etc.
Condemnation of property. |
ness done by each person or firm thus licensed. Tenth-to provide for the issuance of all licenses above named in such sums and on such terms as they may deem best. Eleventh-to levy and collect an annual tax upon all dogs within the limits of said town, and provide for the extermination of all dogs, for which such tax shall not have been paid. Twelfth-to provide for all necessary public buildings for the use of said town. Thirteenth-to establish a Board of Health, to prevent the introduction and spread of disease, and provide for the indigent. Fourteenth-to prevent and restrain any riot or riotous assemblage or disorderly conduct within said city; to close all places of business or public amusements on Sunday, and prohibit and suppress the sale of spirituous liquors on any day of municipal, county, or State election. Fifteenth-to provide for and regulate or prevent the using of gunpowder, or other explosive or combustible material, the use of which would be likely to endanger the lives or property of the inhabitants; to make ordinances for the preservation of the peace, quiet and safety of the inhabitants of said town. Sixteenth-to divide the city into two or more wards, define the boundaries thereof, and provide for elections therein. Seventeenth-to fix and prescribe the punishment for the breach of any ordinance or resolution; but no fine shall be imposed for any one offense in any sum greater than five hundred dollars, and no term of imprisonment shall be prescribed exceeding six months. Eighteenth-to determine the duties, fix and establish the fees, salaries and compensation of all officers of said city; provided, that no member shall receive for his services any sum to exceed in amount one hundred dollars per annum. Nineteenth-to compel the attendance of absent members, to punish members for their disorderly conduct, and to expel members for cause, by a vote of four-fifths of its members elected; and also to fill all vacancies occurring in their own number, or in the office of any officer mentioned in this Act. Twentieth-to make all necessary contracts and agreements for the benefit of the town; to contract debts on the faith of the town; but no debt shall be contracted or liability incurred which shall exceed in the aggregate the sum of twenty thousand dollars; to appropriate money for any item of town expenditure, and to appropriate to the use of the town all fines and penalties and forfeitures for the breach of any city ordinance. Twenty-first-all taxes and fines imposed, and all scrip issued shall be made payable in gold coin of the United States. Twenty-second-all ordinances made by the Board of Trustees, shall be signed by the President and Clerk of said Board, upon its journal of proceedings where the same shall be written in full, and all scrip and bonds issued, contracts and agreements made, shall be signed by the President and countersigned by the Clerk of said Board. Twenty-third-the Board of Trustees shall have power to condemn and appropriate to the public use, or the use of the inhabitants of said town, all real and personal property within the limits of said town, and all claims and asserted rights or title of any person whomsoever to such property, when they deem the same necessary for the opening of streets or alleys, or for other public purposes. Such property shall be condemned and appropriated in the following manner: The Board of Trustees shall appoint one referee, and the claimant, owner or owners of such property so to be condemned, shall appoint one referee, and in the event that the two referees so appointed shall not agree in the valuation of such property or claim, then shall the two so appointed select a third referee, and the decision of a majority of such three as to the valuation of the property or claim by them appraised, |
κ1869 Statutes of Nevada, Page 179 (CHAPTER 102)κ
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of such three as to the valuation of the property or claim by them appraised, shall be reported to said Board of Trustees, and may by them be regarded and held as final and binding, and upon the tender in gold coin of the sum named by said appraisers for such property to the claimant or owner thereof, or his agent or attorney, such claim or property shall become the property or claim of said town, and the Board of Trustees may cause at once to be removed from such property all persons and obstructions, by order, through the Marshal of said town, and take full and immediate possession of the same, and it may be obtained in the form and manner provided by law, where the relation of landlord and tenant exists. In case the owner or owners of said property shall refuse or neglect to appoint said referee, when by said Trustees required, then shall said Board of Trustees constitute a Board of Appraisers, and their valuation shall be final and binding. But no act of said Board of referees in the condemnation of property or any claim, right or title to the same, as herein provided, shall be interpreted as an admission on the part of said incorporated town of the legality of such assessed (?) claim, right or title. And in the condemnation of property, as in this section provided, said referees shall consider if the proposed improvement, for which said property is so condemned, shall be of any benefit to the person or persons owning or claiming the said property, and they shall estimate the value of such proposed improvements to him or them, and shall deduct such amount from the estimated value of such property or claim condemned; and whenever the said corporate body shall have become in any manner possessed of any real estate, upon which any improvements shall have been made for the benefit of said town or corporate body, no judgment in ejectment shall be rendered against said town or corporate body, but only judgment for damages in the value of said property, claim, right or title at the time of the taking possession of the same may be rendered. Sec. 15. It shall be the duty of the Board of Trustees to provide for the accountability of all officers and other persons elected or appointed under this Act to whom the receipt or expenditure of any of the funds of said town shall be entrusted, by requiring of them sufficient security for the faithful performance of their respective duties, and in case of neglect or refusal on the part of any of such officers to furnish such security within three days after notice of such requirements, the Trustees shall declare such office vacant. The amount of such security may at any time be diminished or increased when deemed expedient by said Board. Sec. 16. It shall be the duty of the Board of Trustees to make out and publish in one or more newspapers, published in said town, if there be one, if not, in some paper in the county, at least once in three months, to wit: in January, April, July and October, of each year a full and detailed statement of the receipts and disbursements, from what source received, and for what purposes paid out of the town, during the three months next preceding such report. Sec. 17. Real and personal property may be sold by the Town Marshal for taxes or assessments due said town. The manner and form of assessing and collecting taxes, and the proceedings for the sale of property in case of non-payment of taxes, shall be as prescribed by ordinance, and title upon sale of property shall vest in the purchaser as provided by the Revenue laws of this State. No property, whether real or personal, which shall be sold for taxes shall be subject to redemption, but all such sales shall be absolute. |
Ejectment.
Accountability of officers.
Statement of receipts and disbursements.
Sale of property for taxes. |
κ1869 Statutes of Nevada, Page 180 (CHAPTER 102)κ
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Tax deed.
Duties of Treasurer.
Duties of Marshal.
Duties of Assessor.
Duties of Clerk.
Ordinance for appropriation to lay over.
Style of ordinance. |
subject to redemption, but all such sales shall be absolute. The Marshal shall, upon the sale of such real property for taxes, execute and deliver a deed of such property thereof, and such deed shall be received in any and all courts of this State as prima facie evidence that the grantee or grantors (?) named in said deed, or his or their successors in interest have a good and legal title to the premises described therein, and possession of such property may be obtained in the form and manner as provided by law, when the relation of landlord and tenant exists. Sec. 18. It shall be the duty of the Treasurer to receive all moneys belonging to the town, and to disburse the same on proper warrants on order of said Trustees. He shall keep an accurate and full account of all receipts and expenditures, and the amount of cash on hand, and in what fund, in such manner as the Board of Trustees may direct; and he shall at all times keep his books and accounts open for the inspection of the Trustees, and shall furnish them whenever required, a full statement of such receipts and expenditures. All warrants and orders drawn on the Treasury shall have specified therein the service and indebtedness for which the same is drawn, and shall be redeemed in regular order of registration upon the Treasurers books. Said Treasurer shall perform such other acts and duties as may be prescribed by ordinance or resolution of said Board. Sec. 19. It shall be the duty of the Marshal to enforce the due observance of the ordinances made by the Board of Trustees; to collect the taxes levied by said Board; to act ex-officio as Chief of Police, and perform such other duties as shall be prescribed by said Trustees; it shall be his duty to collect all licenses due the town, and all other moneys or revenue due, or to become due, and to pay the same over to the Treasurer. The time and manner of collecting shall be as prescribed by an ordinance of the Board of Trustees. Sec. 20. It shall be the duty of the Assessor to make out and return to the Board of Trustees a correct list of all the property taxable by law within the limits of said city. The time and mode of making out such list and returning the same shall be prescribed by ordinance. Sec. 21. It shall be the duty of the Clerk to keep the corporate seal, papers, books and documents, belonging to the city; to file the papers and documents in his office, under appropriate heads; to attend the sittings of the Board of Trustees, and keep a journal of their proceedings, and a record of all the by-laws and ordinances; to counter-sign all warrants and licenses issued in pursuance of the orders and ordinances of the Trustees; to affix the corporate seal thereto; to keep an accurate account in a suitable book, under appropriate heads, of all warrants and orders drawn on the treasury; also, to keep in a suitable book, under appropriate heads, an account of all licenses issued, the date of the issue, and the amount; and he shall also do and perform such other duties as may be required or directed by any ordinance or resolution of the Board of Trustees. Sec. 22. Any resolution or ordinance providing for the appropriation for any object or purpose of the sum of three hundred dollars or more shall lay over, and be printed in some newspaper in the town or county for one week before final action shall be taken thereon. Sec. 23. The style of the ordinances shall be, The Board of Trustees of Shermantown do ordain. All ordinances shall be published in one or more newspapers published in the county within one week after their passage, and shall be so published for a period of at least two weeks. |
κ1869 Statutes of Nevada, Page 181 (CHAPTER 102)κ
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week after their passage, and shall be so published for a period of at least two weeks. Sec. 24. Civil actions may be brought in the name of the inhabitants Shermantown, in any Court of competent jurisdiction within the said County of Lander, and actions for the breach of any ordinance or law of the said town may be brought before any Justice of the Peace within the corporate limits of said town. Fines imposed by such Justice of the Peace may be recovered by execution against the property of defendant, or the payment thereof may be enforced by imprisonment in the town or county jail at the rate of one day for every two dollars of such fine and costs, or said Justice to enforce such payment may in his discretion adjudge that such offender work upon the public highways, or other public works of the town, at the rate of one day for every two dollar of such fine and costs, until the same be so exhausted or otherwise paid. No fine shall be imposed exceeding five hundred dollars, and no imprisonment at one time shall exceed the term of six months. Appeals from the judgment of such Justice of the Peace for the violation of ordinances may be had to the District Court of the county, within ten days after such judgment is rendered; such appeal shall be taken in the manner provided by the law of the State of Nevada for appeals from Justice Courts in criminal cases. Sec. 25. If any officer of said city shall remove his residence therefrom, or shall absent himself for more than thirty days without leave of absence from the Board of Trustees, his office shall be declared vacant. Sec. 26. Geo. T. Bliss, Edwin A. Sherman, John Collier, Benjamin Evans and Charles Greely are hereby appointed Trustees of Shermantown, Lander County, under this Act, with full power to appoint the other officers to serve until the municipal election to be held on the first Monday of June, a.d. 1869, and until their successors are elected and qualified. Sec. 27. This Act shall take effect, and be in full force, from and after its passage. |
Civil actions, etc.
Fines.
Appeal.
Vacancy.
Officers appointed. |
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Chap. CIII.An Act to amend an Act entitled An Act to further amend an Act entitled An Act to provide Revenue for the support of the Government of the State of Nevada, approved March 1, 1866.
[Approved March 6, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. Section eleven of said Act is hereby amended so as to read as follows: Section Eleven. All tavern, hotel or inn keepers, all restaurants, public boarding-houses, or eating stands, and all public lodging-houses, shall be divided into their [three] classes, as follows: Those doing business in the aggregate to the amount of three thousand dollars, or over, per month, shall constitute the first class; those doing a business to the amount of one thousand dollars, and less than three thousand dollars, per month, shall constitute the second class; those doing business to the amount of less than one thousand dollars per month shall constitute the third class. |
Licenses, hotels, etc. Classes. |
κ1869 Statutes of Nevada, Page 182 (CHAPTER 103)κ
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Amount of license.
Proviso.
Not to include right to sell liquors. |
to the amount of one thousand dollars, and less than three thousand dollars, per month, shall constitute the second class; those doing business to the amount of less than one thousand dollars per month shall constitute the third class. The license for the first class shall be given upon the payment of forty-five dollars per quarter; for the second class, upon the payment of fifteen dollars per quarter; and for the third class, upon the payment of seven dollars and fifty cents per quarter; provided, that nothing in this section shall require the payment of any license for lodging-houses that are kept in connection with eating-houses, where the aggregate receipts of such lodging department does not exceed thirty dollars per month. Nothing in this section shall be so construed as to include the right to see spirituous or malt liquors and wines, but the same shall be distinct and separate business therefrom, and require separate and exclusive license therefor. |
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Auditor required to draw, and Treasurer to pay warrant. |
Chap. CIV.An Act for the relief of John A. Collins.
[Approved March 6, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. The Board of Commissioners of Storey County is hereby authorized and directed to order the Auditor of said county to draw a warrant on the Treasurer of said county, payable out of the general fund, for the sum of fifteen hundred ($1,500) dollars, in favor of John A. Collins, or order, for his services as Secretary and General Agent of the Storey County Board of Education, from June 2, 1865, to April 6, 1867, and it is made the duty of said Auditor to draw said warrant when so directed, and also of the said Treasurer to pay the same. |
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Commissioners to cause Auditor to draw warrant. |
Chap. CV.An Act to authorize the County of Storey to pay a certain Bond.
[Approved March 6, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. The Board of Commissioners of Storey County is hereby authorized and directed, on the surrender of Bond No. Six, issued to William Ede, dated the twentieth day of June, 1863, for two thousand dollars, payable in gold coin, and bearing interest at the rate of two per cent. per month, by the Storey County Board of Education, to cause the Auditor of said county to draw his warrant on the Treasurer of said county in favor of said William Ede, for the amount of the principal of said bond, with the interest due thereon at the date of drawing said warrant, two thousand dollars of the amount to draw interest at the rate of two per cent. |
κ1869 Statutes of Nevada, Page 183 (CHAPTER 105)κ
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principal of said bond, with the interest due thereon at the date of drawing said warrant, two thousand dollars of the amount to draw interest at the rate of two per cent. per month until paid; and the said Auditor is hereby empowered and directed to draw said warrant on said County Treasurer and deliver the same to the said William Ede or his order. Sec. 2. Said warrant, when drawn, shall be paid in the same manner as by law are required to be paid the warrants of said county, classified as the first class warrants in Section Six of an Act entitled An Act to provide for the payment of the outstanding warrants of Storey County; approved February 16, 1865, as amended by an Act approved March 3, 1865; and said warrant shall, in reference to redemption or payment, be treated and deemed one of said first class warrants, with such privileges and preferences as to payment or redemption as by law said first class warrants now do, or hereafter may have. |
Warrant, how paid. |
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Chap. CVI.An Act to provide for the liquidation and payment of certain claims against the City of Virginia.
[Approved March 6, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. The Board of Aldermen of the City of Virginia are hereby authorized and required to audit and direct the payment, out of the Redemption Fund of said city, to A. B. C. Nusbaum in full satisfaction and liquidation of his claims against said city herein recited, the sum of $2,146 63, (two thousand one hundred and forty-six dollars and sixty-three cents.) The claims to be satisfied and paid by the aforesaid sum are the following, to wit: Warrant No. 8, dated August 17th, 1864, for two hundred ($200) dollars, interest ten per cent. per annum. Warrant No. 9, dated August 17th, 1864, for one hundred ($100) dollars, with like rate of interest. Warrant No. 19, dated September 14th, 1864, for ($100) one hundred dollars, with interest at the like rate. Bond No. 11, dated November 9th, 1864, for ($1,600) sixteen hundred dollars, with interest at the rate of twelve per cent. per annum. Bond No. 12, dated November 9th, 1864, for ($866 33) eight hundred and sixty-six dollars and thirty-three cents, interest twelve per cent. per annum, each of said Bonds being by their terms made payable in gold coin; the aggregate of said Warrants and Bonds for principal and interest amounting, at the date of February 1, a.d. 1869, to the sum of ($4,293 27) four thousand two hundred and ninety-three dollars and twenty-seven cents. Sec. 2. If at any time within one month after the passage of this Act, the said A. B. C. Nusbaum, his agent or attorney, shall file with the clerk of the Board of Aldermen of the City of Virginia the claims or demands against said city specified in section one of this Act, and surrender the same for liquidation and satisfaction on payment to be made of the said sum of two thousand one hundred and forty-six dollars and sixty-three cents, which shall be paid in legal tender notes of the United States, the said Board of Aldermen shall audit and allow, and direct and require the Treasurer of said city to pay to him, |
Aldermen required to audit and direct payment of claims.
Claims to be surrendered for liquidation. |
κ1869 Statutes of Nevada, Page 184 (CHAPTER 106)κ
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Aldermen required to audit and Treasurer to pay.
Satisfaction of claims. |
and direct and require the Treasurer of said city to pay to him, the said A. B. C. Nusbaum, his agent or attorney, in United States currency, the said sum of two thousand one hundred and forty-six dollars and sixty-three cents, and the said Treasurer is hereby directed and required to pay the same out of the Redemption Fund of said city, out of which the same is hereby made payable. The surrender of said demands, and the payment of said sum of money shall work a full and final liquidation and satisfaction of the said claims. |
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Railroad companies required to furnish statement, etc., to Assessor.
Proviso.
Demand and notice, how made. |
Chap. CVII.An Act supplementary to an Act entitled An Act to provide revenue for the support of the government of the State of Nevada, approved March 9, 1865, and the Acts amendatory thereof.
[Approved March 6, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. In all cases where a railroad is located, and is being or has been constructed in or through two or more of the counties of this State, the President, Secretary, General Superintendent or managing Agent of the corporation, company, or persons owning the same, or some managing agent thereof within the county, shall within a reasonable time after demand by the County Assessor of any county in or through which such road is being or has been constructed, furnish to such Assessor a statement under oath or affirmation which shall be in writing, duly subscribed and sworn to before some officer within this State authorized by law to administer oaths, setting forth the length of said road in such county, and the value thereof, with a list of the property real and personal (except rolling stock) pertaining thereto; also the whole length of said road within this State, and the number and value of all locomotives and cars, commonly known as rolling stock, used on said road, within this State, an apportionment of the value of such rolling stock to such county, the same to be estimated according to the proportion which the portion in said county bears to the whole length of said railroad within this State. The Assessor receiving such statement may avail himself of other evidence under oath, and is hereby authorized for such purpose to administer oaths relating to the matter of such assessment; provided, reasonable notice of the time and place of the taking such evidence shall be served upon the person making such statement, or on some officer or managing agent of the corporation or owners of said railroad. Sec. 2. The demand and notice mentioned in the foregoing section and elsewhere in this Act, may be made by personal service on any of the officers or other persons before stated, or by depositing in the Post Office such written demand or notice in a letter, postage prepaid, duly directed to such corporation, company or persons at the place the principal office, or place of business of such railroad company, or owners of such road may be situated. The word railroad, and road, |
κ1869 Statutes of Nevada, Page 185 (CHAPTER 107)κ
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and road, when applied to railroads in this Act, shall be held to include, in addition to the track of said railroad, the land owned by the right of way of such railroad, and all the superstructures of said railroad owners thereon, and all the personal property owned and used therewith. Sec. 3. If any corporation, company or persons owning such railroad fail, neglect or refuse, after being notified, to furnish a statement for assessment and taxation as provided in this Act, the County Assessor may proceed to make the assessments in the same manner as in other cases, as provided in the Act to which this Act is supplementary, and any person upon whom a demand is made for a statement, as in this Act provided, failing, neglecting or refusing to furnish the statement as required, without legal excuse, shall be subject to the same punishment as in other cases of such failure, neglect or refusal, as provided in the Act aforesaid. Sec. 4. In all cases where a service of demand or notice, required by this Act, is made by letters through the Post Office, reasonable time shall be deemed to be double the length of time that letters are usually transmitted by the U. S. mail from the place where the letter is deposited to the place where directed, and ten days additional. |
Word railroad and road, how held.
Failure to furnish statement.
Service of notice by letter. |
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Chap. CVIII.An Act making appropriations for deficiencies in the third and fourth fiscal years.
[Approved March 6, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. The following sums of money are hereby appropriated out of any money in the treasury not otherwise appropriated, subject only to the appropriation for the payment of the salaries of the Justices of the Supreme Court: For support of Nevada State Prison, twelve thousand six hundred and sixty-two dollars and three cents. For stationery, fuel, and lights for State officers, one thousand and nine dollars and fifty-five cents. For prosecuting delinquents for infraction of the revenue laws, one thousand dollars. For State printing and official advertisements, twenty-two hundred and ninety dollars and thirty cents. For pay of porter for Capitol Building, six hundred and twenty-five dollars. For contingent expenses of State Controllers office, sixty dollars and four cents. For contingent expenses of office of Secretary of State, three dollars and thirty-eight cents. For contingent expenses of Supreme Court, ten dollars. For pay of porter for Controller and Treasurer, nine hundred and seventy-seven dollars and fifty cents. |
Deficiency appropriations.
Same. |
κ1869 Statutes of Nevada, Page 186 (CHAPTER 108)κ
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Same.
Same.
Proviso.
Not to apply to specific appropriations. |
For extra clerks hire for Controllers office, seven hundred and thirty dollars and seventy-five cents. For expense of procuring State stamps, to be paid out of moneys received from sale of stamps, two thousand one hundred and nine dollars and twenty-three cents. For support of indigent insane, fifty-five dollars and fifty-four cents. For Legislative Department, rent of rooms, (between session) one hundred dollars. For postage and contingent expenses of Treasurers office, two hundred and forty dollars and thirty-six cents. For salary and expenses of State Mineralogist to January 1, 1869, forty-seven hundred and ninety-five dollars and twenty-four cents. For salary of salary of State Mineralogist from January 1 to March 1, 1869, five hundred dollars. For stationery for State Mineralogist to March 1, 1869, seven dollars. For pay of F. F. Wright as official Reporter of Senate for the special session of 1867, two hundred and five dollars. For David L. Gregg, for fees in the selection of school lands, one hundred dollars. For Warren T. Lockhart, for fees in the selection of school lands, one hundred dollars. For S. H. Wright, for deed to Plaza in Carson City, one hundred and forty-three dollars and fifty cents. For State printing, (bills June 24 and August 6, 1868, not allowed by Board of Examiners) four hundred and fifty-five dollars and seventy-five cents. For E. D. Sweeny, for storage, two hundred and ten dollars. For J. Neely Johnson, office rent &c., four hundred and ninety-one dollars. For F. Butler, for shelving in State Library, two hundred and ninety-seven dollars and fifty cents. For Mandlebaum and Klauber, balance rent of Governors office, twenty dollars. For desk for Governors office, one hundred and fifty dollars. For rent of office for Surveyor-General to December 31, 1868, one hundred and seven dollars, fifty cents. For expense attending the procuring of seal for the Board of Education, one hundred dollars. For expense of fitting up Assembly Chamber, five hundred and seventy-seven dollars and eighty cents. For rent and sundry items for Governors office, one hundred and forty-two dollars; provided, that all claims against the appropriations made in this section shall be paid in the legal tender currency of the United States. Sec. 2. Nothing in this Act shall be so construed as to apply to appropriations specifically made by law. |
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κ1869 Statutes of Nevada, Page 187κ
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Chap. CIX.An Act making appropriations for the support of the civil government of the State of Nevada, for the fifth and sixth fiscal years.
[Approved March 6, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. The following sums of money are hereby appropriated out of any money in the treasury not otherwise appropriated, for the objects hereinafter expressed, and for the support of the civil government of the State, for the fifth and sixth fiscal years: The salaries of the Justices of the Supreme Court, forty-two thousand dollars. For salary of Governor, twelve thousand dollars. For salary of Secretary of State, seven thousand two hundred dollars. For salary of State Controller, seven thousand two hundred dollars. For salary of State Treasurer, seven thousand two hundred dollars. For salary of Attorney-General, five thousand dollars. For salary of Superintendent of Public Instruction, four thousand dollars. For salary of Surveyor-General, two thousand dollars. For salary of Private Secretary of Governor, four thousand eight hundred dollars. For pay of Bailiff of Supreme Court, fifteen hundred dollars. For traveling expenses of Secretary of State, in visiting Insane Asylum, Stockton, California, two hundred dollars. For payment of rewards offered by the Governor, three thousand dollars. For payment of rewards for arrests made outside the limits of the State, fifteen hundred dollars. For postage, expressage, and telegraphing for Governors office, six hundred dollars. For porterage for Governor and Superintendent of Public Instruction, eight hundred dollars. For contingent expenses of the Governors office, five hundred dollars. For salary of Deputy Secretary of State, six thousand dollars. For salary of Clerk in Adjutant-Generals office and State Library, three thousand six hundred dollars. For postage, expressage, and telegraphing for Secretary of States office, one thousand dollars. For copying and indexing Laws, by Secretary of State, five hundred dollars. For copying Journals of the fourth session of the Legislature, five hundred and forty dollars. For transportation of books and documents by Secretary of State, five hundred dollars. For contingent expenses of Secretary of State, five hundred dollars. For pay of porter for Supreme Court, to be employed by the Clerk of said Court, and to be under the direction of a majority of the Judges thereof, twelve hundred dollars. |
Appropriations.
Same.
Same. |
κ1869 Statutes of Nevada, Page 188 (CHAPTER 109)κ
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Same.
Same.
Same. |
of said Court, and to be under the direction of a majority of the Judges thereof, twelve hundred dollars. For contingent expenses of Supreme Court, to be expended under a majority of the Judges thereof, eight hundred dollars. For stationery, fuel, lights, etc., for Supreme Court rooms, to be expended by the Clerk of the Supreme Court, under the directions of the Judges thereof, one thousand dollars. For pay of porter of Capitol Building, excepting Supreme Court rooms, twelve hundred dollars. For salary of Deputy Controller, six thousand dollars. For prosecuting delinquents for infraction of revenue laws, to be expended under the direction of the Controller, two thousand dollars. For postage, expressage, and telegraphing for Controllers office, one thousand dollars. For contingent expenses of Controllers office, three hundred dollars. For pay of porter for Controllers office, four hundred dollars. For salary of Clerk in State Treasurers office, four thousand eight hundred dollars. For postage, expressage, and telegraphing for Treasurers office, three hundred dollars. For contingent expenses in Treasurers office, three hundred dollars. For pay of porter for Treasurers office, four hundred dollars. For expense of procuring State stamps, (to be paid out of any money derived from sale of stamps) four thousand dollars. For postage, expressage, and contingent expenses of Attorney-Generals office, two hundred and fifty dollars. For traveling expenses of Superintendent of Public Instruction within the State, one thousand dollars. For contingent expenses in office of [Superintendent of] Public Instruction, three hundred dollars. For postage and expressage of Superintendent of Public Instruction, two hundred dollars. For postage and expressage of Surveyor-Generals office, one hundred and fifty dollars. For contingent expenses of Surveyor-Generals office, one hundred and fifty dollars. For postage, expressage, and contingent expenses of State Library, four hundred dollars. For insurance of State Library, six hundred dollars. For furniture of State Library, two hundred and fifty dollars. For contingent expenses of Board of Examiners, four hundred dollars. For rent of Capitol Building, four thousand dollars. For rent of office of Governor and Superintendent of Public Instruction, one thousand dollars. For rent of Controllers office, eight hundred dollars. For rent of Treasurers office, eight hundred dollars. For rent of Surveyor-Generals office, four hundred dollars. For the support of and conducting the State Prison, sixty thousand dollars. For salary of Warden of the State Prison, six thousand dollars. For salary of Deputy Warden of the State Prison, three thousand six hundred dollars. For State printing, paper, and official advertisements, to be expended under the direction of the State Controller, Secretary of State, and a printing expert, or a majority of them, thirty thousand dollars. |
κ1869 Statutes of Nevada, Page 189 (CHAPTER 109)κ
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under the direction of the State Controller, Secretary of State, and a printing expert, or a majority of them, thirty thousand dollars. For incidental expenses of Adjutant-Generals office, five hundred dollars. For extra clerical services in office of State Controller, two thousand dollars, and the Controller is hereby authorized to employ such clerical service as he may need, not exceeding the amount of this appropriation. For salary of State Land Register, pay of clerk and draughtsman, expenses of selecting lands, for purchase of maps and charts, postage, expressage, contingent expenses and rent of office, such sums as may be provided by law. For amount paid in excess of appropriation, for 1867, for printing, paper, and official advertisements, two thousand two hundred and fifty-three dollars and forty cents. For stationery, fuel and lights for State offices, excepting Supreme Court, four thousand dollars, said articles to be purchased by the several State officers, at the lowest rates at which such materials can be purchased, to supply their several offices. For salary of State Mineralogist, six thousand six hundred dollars. For outfit of State Mineralogist, eighteen hundred dollars. For contingent expenses of State Mineralogist, four hundred dollars. For traveling expenses of State Mineralogist, two thousand dollars. For rent of office of State Mineralogist, six hundred dollars. For care and storage of State property, during the fifth and sixth fiscal years, one hundred dollars. For bounty and extra pay to Nevada Volunteers, five hundred dollars. For rent of office for Justice Johnson, and use of furniture, six hundred dollars. For State Prison contingent fund, two hundred and fifty dollars. For the purpose of paying any deficiencies in the contingent funds of the Senate and Assembly, to be paid out on the scrip issued by the Sergeant-at-Arms of the two Houses, two thousand dollars. Sec. 2. The various State officers to whom appropriations other than salaries are made, under the provisions of this Act, shall, with their biennial reports, submit a detailed and itemized statement, under oath, of the manner in which all appropriations to their respective departments, other than the payment of salaries, have been expended; provided, that no officer shall use or appropriate any money, for any purpose whatever, unless authorized to do so specifically by law. Sec. 3. Nothing herein contained shall be so construed as to apply to any appropriations that may have been, or that may hereafter be, made specifically by law. |
Same.
Sworn statement. of how appropriations have been expended.
Not to apply to specific appropriations. |
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κ1869 Statutes of Nevada, Page 190κ
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Sale of swamp and overflowed lands.
Locating agents.
Purchase of lands.
Oath.
Statement.
Approval or disapproval. |
Chap. CX.An Act to provide for the selection, sale and reclamation of the swamp and overflowed lands belonging to this State.
[Approved March 6, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. The swamp and overflowed lands granted to this State by an Act of Congress, passed September 28, a.d. 1850, entitled An Act to enable the State of Arkansas and other States to reclaim the swamp and overflowed lands within their limits, shall be sold at the rate of one dollar per acre, payable only in gold or silver coin, as in this Act provided, and shall be sold subject to the right of entry and use thereof, by proper authority, for the purpose of excavating trenches, constructing levees, and doing any work necessary to reclaim, as well other lands, as the particular lands sold. A statement to this effect shall be inserted in every patent issued for lands sold under this Act. Sec. 2. The County Surveyors of the several counties of this State are hereby constituted and appointed Locating Agents on the part of the State, with full power and authority to receive, hear and determine all applications for the purchase of the swamp and overflowed land of this State; and are held and made responsible on their official bonds for a proper discharge of their duties under the provisions and requirements of this Act. They shall receive and consider applications in the order in which the same are presented, and shall note on each application the date of receiving the same, and file and safely keep the same. For their services herein they shall be entitled to the compensation provided in this Act. Sec. 3. Any person desiring to purchase any of said lands shall file an application in writing with the County Surveyor of the proper county, setting forth that it is his or her desire to purchase the land described in the application. The description shall be given according to legal subdivisions; provided, if said lands shall not have been surveyed and subdivided by the United States, the same may be described by their locality, and the purchaser shall, at his or her own expense, within three months thereafter, file a proper description by legal subdivisions of the lands sought to be purchased, with a statement that such is the correct description of the lands he or she desires to purchase. The applicant shall accompany a proper description of the lands with his or her own oath to the effect that a majority of each forty-acre tracts thereof is wet and rendered unfit for cultivation in its present condition by reason of being swampy or subject to overflow, according to the best of his or her knowledge or belief. The oath shall be supported by the affidavit of at least one other credible witness. If the application be made within the period allowed to settlers and occupants to purchase the lands occupied by them, in preference to others, the oath of the applicant and supporting witness shall also state that the lands embraced within the application are not settled upon or occupied by any other person or persons, or if occupied, the written consent of the occupant shall be produced and filed. The County Surveyor shall approve or disapprove all applications, within six months from the date of filing same with proper description. |
κ1869 Statutes of Nevada, Page 191 (CHAPTER 110)κ
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of filing same with proper description. If he disapprove any application on the ground that the land is not swampy or overflowed, he shall not approve any other application to the same land in favor of any other applicant, unless written notice shall have been served on such applicant and he or she decline to make the purchase. The first applicant desiring to do so, shall be entitled to make such purchase. Sec. 4. All lands purchased under the provisions of this Act shall be paid for within three months from the date of approval of the application and notice to the applicant, unless a credit be desired. If the lands be purchased on a credit, the amount required to be paid on the purchase shall be paid within the time before stated. Any purchaser desiring it may have a credit of five years to pay for said lands, upon payment in advance of twenty per cent. of the purchase money, and ten per cent. in advance for one years interest on the balance of the unpaid purchase money, and interest thereafter on the unpaid purchase money at the rate of ten per cent. per annum, in advance. Upon a sale being made, the County Surveyor shall deliver to the purchaser a statement, signed by him, containing a description of the lands sold, and whether sold for cash or on credit, and the full name or names of the purchaser or purchasers. The purchaser shall deliver such statement to the County Treasurer, and pay to such Treasurer for the land, if it be a cash purchase, at the rate of one dollar per acre; if on a credit, twenty per cent. of the purchase money, and ten per cent. on the unpaid purchase money for one years interest. The County Treasurer shall thereupon deliver to the purchaser his receipt for the money paid, embracing in the receipt a description of the land, and designating whether the same is in full for the purchase money or only twenty per cent. thereon, and one year interest on the unpaid balance, stating amount in round numbers, and in writing instead of figures; also stating when another years interest will fall due. The purchaser may have said receipt recorded, and the same and the record thereof shall be prima facie evidence of title and right of possession in the purchaser and those holding under him or her. Sec. 5. On payment of the purchase money, and presentation to the Register of the State Controllers receipt, (who is hereby required to give the same to purchasers on full payment of the purchase money) the purchaser will be entitled to a patent for the land purchased. All patents for lands sold under the provisions of this Act shall be signed by the Governor, and countersigned by the Register of the State Land Office, and attested with the seal of his office. As soon as the County Surveyor shall approve an application he shall transmit a copy of the application with the accompanying affidavits (and other evidence, if any) to the U. S. Surveyor-General for the District of Nevada, and a like copy to the local U. S. Land Office, with his own notice appended, stating that said lands have been selected and are claimed by this State as part of the swamp and overflowed lands belonging to the State, and the selection has been approved by him as such lands. Sec. 6. If any person after having filed an application to purchase lands under the provisions of this Act, shall fail within the time to furnish a proper description thereof, not having at the time of making the application done so, within the time required, or shall fail for one year and a day from the date of the first receipt, to pay the annual interest, or shall for the like time, after the unpaid balance of principal of purchase money falls due, fail to pay the same, such person or persons so failing shall be deemed to have abandoned his or her right of purchase, |
Payment for lands purchased..
Statement.
Receipt.
Patent.
Copy of application to be transmitted to United States Surveyor-General.
Failure to furnish description, etc. |
κ1869 Statutes of Nevada, Page 192 (CHAPTER 110)κ
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Preference given to actual settlers. Purchase limited. Proviso.
Swamp Land Fund.
Statement.
Trust.
Money may be used for redemption of bonds.
Proviso.
Officers liable for money received.
Perjury.
Oaths.
Fees and expenses. |
or persons so failing shall be deemed to have abandoned his or her right of purchase, and the same lands may be sold to another purchaser, the same as though the same had never been sold; provided, that no oaths or affidavits need accompany a second application to purchase. Sec. 7. Actual settlers and occupants of any of the swamp and overflowed lands belonging to this State, shall have the preference over all others to purchase the same for a period of one year from the first day of June, a.d. 1869, to the extent allowed to be purchased by a single purchaser. No person shall be allowed to purchase more than six hundred and forty acres under this Act; provided, married women may purchase in their own name and right, irrespective of any purchase made by their husbands. All persons in the possession of or occupying lands by themselves, tenants or agents, shall be deemed to be actual settlers and occupants; provided, saline lands shall not be deemed or held to be any part of the swamp and overflowed lands of this State. Sec. 8. All moneys obtained on account of the sales of swamp and overflowed lands shall be kept in the State Treasury as a separate fund, and known as the Swamp Land Fund, and it shall be the duty of the County Treasurer of each county to receive and hold said money in their official character, and to pay the same over to the State Treasurer, at the same times and in the same manner as other State revenues, designating at the time of payment the amount properly due to the Swamp Land Fund. County Treasurers shall also furnish to the State Controller, at the time of making their settlements, a statement duly certified by them, containing the names of each purchaser of swamp and overflowed lands, with a description of the lands purchased, the amount paid for the same, or if purchased on a credit, the amount paid on account of the purchase money, and the amount paid on account of interest. The amounts so received into the State Treasury shall be held in trust for the reclamation of the lands sold, and of other swamp and overflowed lands of the county, or of any swamp land district which may hereafter be created, embracing the lands sold, to be used under the proper orders of the Board of County Commissioners of the proper county as provided by law. Until required for reclamation purposes, the money which shall accumulate in the Swamp Land Fund, whenever the same shall amount to the sum of ten thousand dollars, may be used by the State, under the authority and management of the Board of Examiners for the redemption of the outstanding bonds of this State; provided, all sums of money so used shall bear interest in favor of the Swamp Land Fund, until returned, at the rate of ten per cent. per annum. Sec. 9. All public officers who shall receive moneys under any of the provisions of this Act shall be held liable on their official bonds for the safe keeping and proper disbursement thereof; and all persons swearing falsely to any matters requiring an oath under the provisions of this Act, shall be deemed guilty of perjury, and punished as provided by law for the commission of the crime of perjury in other cases. County Surveyors are hereby authorized to administer all oaths necessary or required to be taken in proceedings under this Act. Sec. 10. All fees and expenses attending the purchase of swamp and overflowed lands shall be paid by the purchaser, and may be required to be paid in advance, as the services to be rendered progresses. There shall be allowed and paid to the County Surveyor fees as follows: For receiving and filing each application, one dollar; for swearing the applicant, including jurat, one dollar; for swearing each witness, including jurat, fifty cents; for making out and transmitting copies of application, with notice to U. |
κ1869 Statutes of Nevada, Page 193 (CHAPTER 110)κ
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lows: For receiving and filing each application, one dollar; for swearing the applicant, including jurat, one dollar; for swearing each witness, including jurat, fifty cents; for making out and transmitting copies of application, with notice to U. S. Surveyor and local U. S. Land office, and subsequent notice of approval, three dollars; for making any survey required to be made, the same fees as now provided by law. There shall be collected from each purchaser for each patent issued the sum of ten dollars, which shall be paid into the State Library Fund. Sec. 11. Whenever two or more persons shall make application to purchase the same lands, other things being equal, the person making application first in point of time shall have the preference. In all other cases the officer before whom the application is made shall proceed to hear the proofs and allegations of the contestants, and decide the matter in a summary way. The party against whom the decision is made shall, within twenty days after being notified in writing of the character of the decision, notify the officer making the decision, which notice shall also be in writing, that he excepts to the decision, and appeals from the same to the District Court of the county in which the land lies. He shall at the same time deposit with the officers ten dollars, which shall be in full compensation for filing in the Clerks office copies of all the proceedings had before him, and he shall so file the same within ten days. The District Court wherein such copies shall have been filed shall have jurisdiction to proceed, to hear and determine between the contesting parties who are entitled to purchase the lands sought to be purchased under the provisions of this Act. Costs may be awarded to the successful party, as in other cases, and judgment rendered therefor and enforced, as in other civil cases. Sec. 12. Whenever the sum of five thousand dollars shall accumulate in the Swamp Land Fund, due to any county, upon application by petition to the Board of County Commissioners of such county, asking for the reclamation of any tract or tracts of swamp and overflowed lands, and such petition be signed by the holder or owners of receipts or patents for the purchase of one-half of the lands sought to be reclaimed, it shall be the duty of the Board of County Commissioners to appoint some suitable civil engineer to make an examination and survey of such tract or tracts of land. The engineer shall, with the plat of such examination and survey, return an exhibit, showing the levels of the country surveyed; the average depth of water in winter and in summer; the sources from whence the water flows in to cover the land; the heighth and width of embankments necessary to prevent overflow; the depth and width of sloughs to be filled; the stream to be diverted; and specify in detail the work necessary to be performed for the reclamation of the tract or tracts of country sought to be reclaimed, also an estimate of the total cost of the work. He shall make, or aid and assist in making plans and specifications for the reclamation of said lands, and give general directions for the work to be done, subject to the orders and control of the Board of County Commissioners. The Board of County Commissioners may remove such engineer and appoint another at will. Sec. 13. If, in the opinion of the Board of County Commissioners, the total cost of reclaiming the tract of land, including all expenses necessarily incident thereto, mentioned in the petition, will not exceed in the aggregate of one dollar per acre, and such further sum as may be subscribed and paid by individuals, the Board may in its discretion adopt the plan presented, or any other plan based upon the same survey, and advertise for bids or proposals for doing the work. |
Contests.
Reclamation of lands.
Contract for reclamation of lands. |
κ1869 Statutes of Nevada, Page 194 (CHAPTER 110)κ
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Award of contract.
Allowance of expenses, etc.
Contractor may enter upon private lands. |
adopt the plan presented, or any other plan based upon the same survey, and advertise for bids or proposals for doing the work. Before letting any contract for doing the work, notice shall be advertised for at least three weeks in some newspaper printed and published in the county, or if there be none so published, in a newspaper in some other county in this State, setting forth that sealed proposals up to a specified date, which shall not be less than thirty days, will be received by the Board of County Commissioners for performing the work of reclamation according to plans and specifications adopted. The notice shall state where the plans and specifications may be seen, and that the work will be let to the lowest responsible bidder. Sec. 14. The Board shall award the contract to the lowest responsible bidder, but may reject all bids if deemed too high, and advertise for further proposals if deemed advisable. The person to whom the contract shall be awarded shall enter into bond with two or more good and sufficient sureties, to be approved by the Board of County Commissioners, payable to the proper county in double the amount of the contract, conditioned for the faithful performance thereof. Said bond shall be for the use of the Swamp Land Fund, due to the county. In all cases where any ditch, levee or embankment, or other means of reclamation which has already been constructed by any person or persons owning lands, shall be used in the work of reclamation, the same shall be measured, estimated, and paid for to the owners thereof at the contract price, and the sum so paid deducted from the amount to be paid to the contractor. Sec. 15. All amounts accruing for work done and expenses incurred under the provisions of this Act shall be ascertained and allowed by the Board of County Commissioners, and the several sums so allowed shall be made payable out of the Swamp Land Fund, due to the county, and not otherwise. Whenever any money shall be audited in any county, payable out of the Swamp Land Fund, the clerk of the Board of County Commissioners of such county shall certify the gross amount thereof to the State Controller, who shall present the same to the Board of Examiners; and if the same be found correct, the Board of Examiners shall order the State Controller to draw an order in favor of the proper county for the amount thereof directed to the County Treasurer, directing such County Treasurer to pay the same to the person entitled thereto, according to the warrants issued against the same by the County Auditor, out of any moneys in his hands as County Treasurer belonging to the State. The Controller shall transmit such order to the County Auditor, who shall deliver the same to the County Treasurer, so soon as there shall be funds in his custody belonging to the State sufficient to meet the same. The County Treasurer, upon receiving such order, shall set apart from said fund money sufficient to meet the same, and shall stand charged therewith. The order aforesaid shall be a voucher in favor of the County Treasurer holding the same, in his next settlement with the State. Sec. 16. In the performance of any work necessary to the reclamation of the swamp and overflowed lands as herein provided, any contractor may enter upon and take possession of so much of any of said lands as may be necessary for that purpose. If it become necessary to enter upon the lands of private individuals, and such lands be not part of the swamp and overflowed lands belonging to, or sold by this State, and the right of entry upon, and use and possession of so much thereof as may be necessary for that purpose, be not granted by the owners thereof, |
κ1869 Statutes of Nevada, Page 195 (CHAPTER 110)κ
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of, the Board of County Commissioners shall petition the District Court, in which said lands are situated, to appoint three appraisers to assess the damages arising from the taking of such lands; and, upon the filing of such petition, the Court shall fix a day for the hearing thereof, and direct notice of such hearing to be given in such manner, and for such length of time, as the Judge of said Court may direct. Sec. 17. Upon the hearing, the Court may appoint three disinterested persons, who shall have full power to proceed to such premises, and to examine, hear and determine all questions of damages and injuries to such land, arising from such taking and use, and to award the amount of the same to the person or persons entitled thereto, and for this purpose said appraisers shall have power to administer oaths. The appraisers shall make their report in writing, and file the same in the proper Court, and the same shall be approved or set aside for cause shown; and if set aside, other appraisers appointed who shall proceed in like manner. An award after being approved shall have the effect of a judgment, and the money directed thereby to be paid, shall be paid in like manner as for work done and completed in the total cost of reclamation, as a portion of the charges against the tract of land to be reclaimed. No damages shall be allowed to owners or purchasers of lands sold under the provisions of this Act. Sec. 18. No County Commissioner shall be concerned or interested, either directly or indirectly, as principal, partner or agent, or in any other manner in any contract to be awarded by the Board of County Commissioners under the provisions of this Act, or in the profits to be derived therefrom. Any County Commissioner convicted of violating the provisions of this section, shall be deemed guilty of felony, and such conviction shall work a forfeiture of his office, and he shall be punished by imprisonment in the State Prison not less than one, nor more than three years. |
Appraisers may be appointed.
Report.
County Commissioners not to be interested in contract. |
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Chap. CXI.An Act to provide for the payment of the claim of John W. Keller against the City of Virginia.
[Approved March 8, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
Section 1. The Board of Aldermen of Virginia City, Storey County, are authorized and empowered, and it is hereby made their duty, to audit and allow, from that portion of the Redemption Fund of said city, created under the Act entitled An Act supplementary to and amendatory of, an Act entitled An Act to provide for the payment of the outstanding indebtedness of Virginia City, Storey County, approved January 27th, 1865; approved March 3d, 1866, the claim of John W. Keller, to the sum of fifteen thousand five hundred dollars in legal tender notes of the United States. Said sum of fifteen thousand five hundred dollars being in liquidation and full payment of the following described warrants or orders, and interest thereon, to wit: Warrant No. (1453) fourteen hundred and fifty-three, dated October 13th, 1863, for the sum of two thousand dollars, with interest thereon until paid, at the rate of five per cent. |
Aldermen authorized to audit and allow claim. |
κ1869 Statutes of Nevada, Page 196 (CHAPTER 111)κ
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Board to order payment on surrender of indebtedness.
Treasurer to pay.
Deficiency. |
13th, 1863, for the sum of two thousand dollars, with interest thereon until paid, at the rate of five per cent. per month; also, warrant No. sixteen hundred and fifty-nine, dated December 30th, 1863, for the sum of four thousand and forty-five dollars, with interest thereon from date until paid, at the rate of five per cent. per month. Sec. 2. Whenever the said John W. Keller, or his assigns, holder of the claims described in section one of this Act, shall present and surrender to the Board of Aldermen of said city, the evidences of indebtedness hereinbefore described, the Board of Aldermen shall pass an order directing the Treasurer of said city to pay to said John W. Keller, or his assigns, out of moneys in the Redemption Fund, under the Act approved March 3d, 1866, the sum of fifteen thousand five hundred dollars, in United States legal tender notes; and it is hereby made the duty of the Treasurer, to pay on such order the amount therein specified, in liquidation and full payment of the demands mentioned in section one of this Act. Sec. 3. In case there should not be sufficient moneys in said Redemption Fund to pay the full sum of fifteen thousand five hundred dollars, at the time of the presentation and surrender of said evidences of indebtedness hereinbefore provided, it is hereby made the duty of the Treasurer of said city to pay on such order of the Board of Aldermen all moneys in said fund, and to retain in his hands out of the first moneys coming into and belonging to said Redemption Fund, sufficient moneys to pay any deficiency which may remain unpaid thereon, and thereafter upon demand to pay such deficiency. |
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Only one form of action.
Parties designated.
Question of fact. |
Chap. CXII.An Act to regulate proceedings in civil cases in the Courts of Justice of this State, and to repeal all other Acts in relation thereto.
[Approved March 8, 1869.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
TITLE I.
Of the form of Civil Actions and the Parties thereto.
Section 1. There shall be in this State but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs. Sec. 2. In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant. Sec. 3. When a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial. |
κ1869 Statutes of Nevada, Page 197 (CHAPTER 112)κ
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Sec. 4. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this Act. Sec. 5. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence, existing at the time of, or before notice of the assignment; but this Section shall not apply to a negotiable promissory note, or bill of exchange, transferred in good faith, and upon good consideration, before due. Sec. 6. An executor, or administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person or persons for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this Section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. Sec. 7. When a married woman is a party, her husband shall be joined with her; except that: First-When the action concerns her separate property, she may sue alone. Second-When the action is between herself and her husband, she may sue or be sued alone. Sec. 8. If a husband and wife be sued together, the wife may defend for her own right. Sec. 9. When an infant is a party, he shall appear by guardian, who may be appointed by the Court in which the action is prosecuted, or by a Judge thereof. Sec. 10. The guardian shall be appointed as follows: First-When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or, if under that age, upon the application of a relative or friend of the infant. Second-When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant. Sec. 11. A father, or, in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child; and a guardian for the injury or death of his ward. Sec. 12. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this Act. Sec. 13. Any person may be made a defendant, who has, or claims, an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. Sec. 14. Of the parties to the action, those who are united in interest shall be joined as plaintiffs, or defendants; but if the consent of any one, who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the Court, one or more may sue or defend for the benefit of all. Tenants in common, joint tenants, or copartners, or any number less than all may jointly or severally bring or defend, or continue the prosecution or defense, of any action for the enforcement of the rights of such person or persons. Sec. 15. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all, or any of them, be included in the same action, at the option of the plaintiff. |
Action in whose name prosecuted. Set-off, when not prejudiced.
Action by executor.
When married woman is party, exceptions.
Defense by.
Infant, how to appear.
Guardian, how appointed.
Injury to child, etc.
Plaintiff, who may be joined.
Defendant, who may be made.
Parties, who to be joined.
Separately liable may be joined. |
κ1869 Statutes of Nevada, Page 198 (CHAPTER 112)κ
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Death of party, or transfer of interest.
Controversy, when Court to determine.
Where subject-matter is situated.
Proviso.
Where cause of action arose. |
notes, and sureties on the same or separate instruments, may all, or any of them, be included in the same action, at the option of the plaintiff. Sec. 16. An action shall not abate by the death, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, or disability, of a party, the Court, on motion, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the Court may allow the person to whom the transfer is made to be substituted in the action. After verdict shall have been rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law. Sec. 17. The Court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the Court shall order them to be brought in, and thereupon the party directed by the Court shall serve a copy of the summons in the action, and the order aforesaid in like manner of service of the original summons, upon each of the parties ordered to be brought in, who shall have ten days, or such time as the Court may order, after service, in which to appear and plead; and in case such party fail to appear and plead within the time aforesaid, the Court may cause his default to be entered, and proceed as in other cases of default, or may make such other order as the condition of the action and justice shall require.
TITLE II.
Of the Place of Trial of Civil Actions.
Sec. 18. Actions for the following causes shall be tried in the County in which the subject of the action, or some part thereof, is situated, subject to the power of the Court to change the place of trial, as provided in this Act: First-For the recovery of real property, or of an estate, or interest therein, or for the determination in any form of such right or interest, and for injuries to real property. Second-For the partition of real property. Third-For the foreclosure of a mortgage of real property; provided, that where such real property is situate partly in one County and partly in another, the plaintiff may select either of said Counties, and the County so selected shall be the proper County for the trial of any or all of such actions as are mentioned in the First, Second and Third subdivisions of this Section. Sec. 19. Actions for the following causes shall be tried in the County where the cause, or some part thereof, arose, subject to the like power of the Court to change the place of trial: First-For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offence committed on a lake, river, or other stream of water, situated in two or more Counties, the action may be brought in any County bordering on such lake, river, or stream, and opposite to the place where the offense was committed. Second-Against a public officer, or person especially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command or in his aid, does anything touching the duties of such officer. |
κ1869 Statutes of Nevada, Page 199 (CHAPTER 112)κ
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who, by his command or in his aid, does anything touching the duties of such officer. Sec. 20. In all other cases, the action shall be tried in the County in which the defendants, or any one of them, may reside at the commencement of the action; or, if none of the defendants reside in the State, or if residing in the State the County in which they so reside be unknown to the plaintiff, the same may be tried in any County which the plaintiff may designate in his complaint; and if any defendant, or defendants, may be about to depart from the State, such action may be tried in any County where either of the parties may reside or service be had, subject, however, to the power of the Court to change the place of trial, as provided in this Act. Sec. 21. If the County designated for that purpose in the complaint be not the proper County, the action may, notwithstanding, be tried therein, unless the defendant before the time for answering expire demand in writing that the trial be had in the proper County, and the place of trial be thereupon changed by consent of parties, or by order of the Court, as is provided in this Section. The Court may, on motion, change the place of trial in the following cases: First-When the County designated in the complaint is not the proper County. Second-When there is reason to believe that an impartial trial cannot be had therein. Third-When the convenience of witnesses and the ends of justice would be promoted by the change. Fourth-When from any cause the Judge is disqualified from acting in the action. When the place of trial is changed, all other proceedings shall be had in the County to which the place of trial is changed; unless otherwise provided by consent of the parties in writing duly filed, or by order of the Court; and the papers shall be filed, or transferred, accordingly.
TITLE III.
Of the Manner of Commencing Civil Actions.
Sec. 22. Civil action in the District Courts shall be commenced by the filing of a complaint with the Clerk of the Court, and the issuance of a summons thereon; provided, that after the filing of the complaint a defendant in the action may appear, answer or demur, whether the summons has been issued or not, and such appearance, answer or demurrer, shall be deemed a waiver of summons. Sec. 23. The Clerk shall indorse on the complaint the day, month and year the same is filed, and at any time within one year after the filing of the same the plaintiff may cause to be issued a summons thereon. The summons shall be issued and signed by the attorney of the plaintiff, or by the Clerk, and when issued by the Clerk shall be issued under the seal of the Court. Sec. 24. The summons shall state the parties to the action, the Court in which it is brought, the county in which the complaint is filed, the cause and general nature of the action, and require the defendant to appear and answer the complaint within the time mentioned in the next section, after the service of summons, exclusive of the day of service; or that judgment by default will be taken against him, according to the prayer of the complaint; briefly stating the sum of money or other relief demanded in the complaint. The names of the plaintiffs attorneys shall be indorsed upon the summons. |
Where parties reside.
Changing place of trial.
Civil actions, how commenced in the District Court.
Complaint, how indorsed.
Form of Summons. |
κ1869 Statutes of Nevada, Page 200 (CHAPTER 112)κ
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Answer, when to be made.
Notice to be inserted in Summons.
Notice in action affecting real property.
Summons, by whom erved.
How served. |
Sec. 25. The time in which the summons shall require the defendant to answer the complaint shall be as follows: First-If the defendant is served within the county in which the action is brought, ten days. Second-If the defendant is served out of the county, but in the District in which the action is brought, twenty days. Third-In all other cases, forty days. Sec. 26. There shall also be inserted in the summons a notice in substance as follows: First-In an action arising on contract for the recovery only of money or damages, that the plaintiff will take judgment for a sum specified therein, if the defendant fail to answer the complaint. Second-In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded therein. Sec. 27. In an action for the foreclosure of a mortgage upon real property, or affecting the title or possession of real property, the plaintiff, at the time of filing the complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterwards, may file with the Recorder of the county in which the property, or some part thereof is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the property in that county affected thereby, and the defendant may also, in such notice, state the nature and extent of the relief claimed in the answer. From the time of filing, only, shall the pendency of the action be constructive notice to a purchaser, or incumbrancer of the property affected thereby; and in case of the foreclosure of such mortgage all purchasers or incumbrancers, by unrecorded deed or other instrument in writing made prior to the filing of such notice, and subsequent to the date of such mortgage, shall be deemed and held purchasers or incumbrancers subsequent to the filing of such notice, and subject thereto, unless they can show that at the time of filing the notice the plaintiff had actual notice of such purchase or incumbrance. Sec. 28. The summons shall be served by the Sheriff of the county where the defendant is found, or by his deputy, or by any citizen of the United States over twenty-one years of age; and, except as hereinafter provided, a copy of the complaint, certified by the Clerk or the plaintiffs attorney, shall be served with the summons. When the summons shall be served by the Sheriff or his deputy, it shall be returned with the certificate or affidavit of the officer, of its service, and of the service of the copy of the complaint, to the office of the Clerk of the county in which the action is commenced. When the summons is served by any other person, as before provided, it shall be returned to the office of the Clerk of the county in which the action is commenced with the affidavit of such person of its service, and of the service of a copy of the complaint. If there be more than one defendant to the action residing within the county in which the action is brought, a copy of the complaint need be served only on one of such defendants. Sec. 29. The summons shall be served by delivering a copy thereof, attached to the certified copy of the complaint, as follows: First-If the suit be against a domestic corporation, organized under the laws of this State, to the President or other head of the corporation, Secretary, Cashier, or managing Agent thereof. Second-If the suit be against a foreign corporation or a non-resident joint stock company or association, doing business within this State, to an Agent, Cashier, or Secretary, |
κ1869 Statutes of Nevada, Page 201 (CHAPTER 112)κ
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or Secretary, President or other head thereof; provided, that if the suit be against a corporation organized under the laws to the State of California, in addition to such personal service, a copy of the summons, attached to a certified copy of the complaint, shall be deposited in the Post Office, addressed to the President and Trustees of said corporation, at their place of business in the State of California, if the same is known, or can by due diligence be ascertained; and, provided further, that when such California corporation has no President or other head, Secretary, Cashier or managing Agent, upon whom service of summons can be had, the Court before which such action has been brought, or the Judge thereof, may, upon the affidavit of the plaintiff, showing the existence of the foregoing facts, make an order for the service on the defendant of a copy of the summons and complaint in the action. Such service may be made by some competent person appointed by the Court or the Judge thereof, or by the Sheriff of the county, within the State of California, within which the principal place of business of such corporation may be located. Such service may be made personally, within said State of California, by said Sheriff or other person appointed by the Court or Judge, and shall be made in the same manner as required by law for the personal service of summons within this State. The service shall be upon the President or other head, Secretary, Cashier or managing Agent of such corporation, and when proved to the satisfaction of the Court, by the sworn return of said Sheriff or other person so appointed, shall be for all purposes as valid and effectual as if made by a competent officer within this State; and in case such corporation shall not appear in the action within forty days after such service, its default and judgment thereon may be entered as in other cases. Third-If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian; or, if there be none within the State, then to any person having the care and control of such minor, or with whom he resides, or in whose service he is employed. Fourth-If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, to such guardian. Fifth-In all other cases, to the defendant personally. Sec. 30. When the person on whom the service is to be made resides out of the State, or has departed from the State, or cannot after due diligence be found within the State, or conceals himself to avoid the service of summons, or being a corporation, or joint stock association, cannot be served as provided in Section Twenty-nine, and the fact shall appear by affidavit to the satisfaction of the Court or a Judge thereof, and it shall in like manner appear that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such Court or Judge may grant an order that the service be made by the publication of the summons. Sec. 31. The order shall direct the publication to be made in a newspaper to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week; provided, that a publication against a defendant being or residing either in the States of California or Oregon, or Territories of Utah or Washington, shall not be less than one month; and against a defendant residing out of the State, or absent therefrom, and not being or residing in either the States of California or Oregon, or the Territories of Utah or Washington, shall not be less than three months. |
Service by publication.
Same. |
κ1869 Statutes of Nevada, Page 202 (CHAPTER 112)κ
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Proceedings where service is made only on some of several defendants.
Proof of service.
Same.
Jurisdiction.
Pleadings.
Forms and rules. |
the Territories of Utah or Washington, shall not be less than three months. In case of publication where the residence of a non-resident or absent defendant is known, the Court or Judge shall also direct a copy of the summons and complaint to be deposited in the Post Office, directed to the person to be served at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint out of the State shall be equivalent to publication and deposit in the Post Office. The service of summons shall be deemed complete when personally made, whether in or out of the State, and in cases of publication at the expiration of the time prescribed in the order; provided, that when the order directs a copy of the complaint and summons to be deposited in the Post Office, the service shall not be complete until the expiration of the time prescribed for publication after such deposit. In actions upon contracts for the direct payment of money, the Court in its discretion may, instead of ordering publication, or may after publication, appoint an attorney to appear for the non-resident, absent, or concealed defendant, and conduct the proceedings on his part. Sec. 32. Where the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows: First-If the actions be against the defendants jointly indebted upon a contract, he may proceed against the defendant served, unless the Court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and the separate property of the defendant served; or, Second-If the action be against defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants. Sec. 33. Proof of the service of the summons shall be as follows: First-If served by the Sheriff or his deputy, the affidavit or certificate of such Sheriff or deputy; or, Second-If by any other person, his affidavit thereof; or, Third-In case of publication, the affidavit of the publisher, his foreman or principal clerk, showing the same, and an affidavit of a deposit of a copy of the summons in the Post Office, if the same shall have been deposited; or, Fourth-The written admission of the defendant. Sec. 34. In case of service otherwise than by publication, the certificate or affidavit shall state the time and place of the service. Sec. 35. From the time of the service of the summons in a civil action, the Court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him.
TITLE IV.
Of the Pleadings in Civil Actions.
Sec. 36. The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the Court. Sec. 37. All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this Act. |
κ1869 Statutes of Nevada, Page 203 (CHAPTER 112)κ
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Sec. 38. The only pleadings on the part of the plaintiff shall be the complaint, or demurrer to the defendants answer; and the only pleadings on the part of the defendant shall be the demurrer, or the answer. The demurrer or answer of the defendant, and the demurrer of the plaintiff, shall be filed with the Clerk, and a copy served on the adverse party, or his attorney. Sec. 39. The complaint shall contain: First-The title of the action, specifying the name of the Court, and the name of the county in which the action is brought, and the names of the parties to the action, plaintiff and defendant. Second-A statement of the facts constituting the cause of action, in ordinary and concise language. Third-A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof shall be stated. Sec. 40. The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof, either: First-That the Court has no jurisdiction of the person of the defendant, or the subject of the action; or: Second-That the plaintiff has not legal capacity to sue; or: Third-That there is another action pending between the same parties for the same cause; or: Fourth-There is a defect or misjoinder of parties, plaintiff or defendant; or: Fifth-That several causes of action have been improperly united; or: Sixth-That the complaint does not state facts sufficient to constitute a cause of action. Seventh-That the complaint is ambiguous, unintelligible or uncertain. Sec. 41. The demurrer shall distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it do so it may be disregarded. Sec. 42. The defendant may demur to the whole complaint, or to one or more of several causes of action stated therein, and answer the residue; or may demur and answer at the same time. Sec. 43. If the complaint be amended, a copy of the amendment shall be filed, or the Court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments shall be served upon every defendant to be affected thereby, or upon his attorney if he has appeared by attorney. The defendant shall answer in such time as may be ordered by the Court, and judgment by default may be entered upon failure to answer, as in other cases. Sec. 44. When any of the matters enumerated in Section Forty do not appear upon the face of the complaint, the objection may be taken by answer. Sec. 45. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the Court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. Sec. 46. The answer of the defendant shall contain: First-If the complaint be verified, a special [specific] denial to each allegation of the complaint, controverted by the defendant, or a denial thereof according to his information and belief; if the complaint be not verified, then a general denial to each of such allegations; but a general denial shall only put in issue the material and express allegations of the complaint. Second-A statement of any new matter or counter claim constituting a defense, in ordinary and concise language. Sec. 47. The counter claim mentioned in the last section, shall be one existing in favor of the defendant and against a plaintiff, between whom a several judgment might be had in the action, |
By plaintiff and defendant.
Complaint, what to contain.
Demurrer.
Same.
Same.
Amending complaint.
Objections.
Waiver of objections.
Answer, what to contain.
Counter claim. |
κ1869 Statutes of Nevada, Page 204 (CHAPTER 112)κ
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Cross demands.
Several defenses may be set up.
Demurrer to answer.
Pleadings to be subscribed, etc.
Verification when omitted.
Genuineness of written instrument admitted.
Same.
Manner of verifying pleadings. |
whom a several judgment might be had in the action, and arising out of one of the following causes of action: First-A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiffs claim, or connected with the subject of the action. Second-In an action arising upon contract, any other cause of action arising also upon contract and existing at the commencement of the action. Sec. 48. When cross demands have existed between persons under such circumstances that if one had brought an action against the other a counter claim could have been set up, neither shall be deprived of the benefit thereof by the assignment or death of the other, but the two demands be deemed compensation so far as they equal each other. Sec. 49. The defendant may set forth by answer as many defenses and counter claims as he may have. They shall each be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer in a manner in which they may be intelligibly distinguished. Sec. 50. The plaintiff may, within the number of days in which the defendant is by the summons required to answer, said days to be computed from the time of the service on the plaintiff of a copy of such answer, demur to the same for insufficiency, stating in his demurrer the grounds thereof; and he may also, within the same time, demur to one or more of the defenses set up in the answer. Sham and irrelevant answers and defenses, and so much of any answer as may be irrelevant, redundant or immaterial may be stricken out on motion, and upon such terms as the Court, in its discretion, may impose. Sec. 51. Every pleading shall be subscribed by the party or his attorney, and when the complaint is verified by affidavit, the answer shall be verified also, except as provided in the next section. Sec. 52. The verification of the answer required in the last Section may be omitted when an admission of the truth of the complaint might subject the party to prosecution for felony. Sec. 53. When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the answer denying the same be verified. Sec. 54. When the defense to an action is founded upon a written instrument, and a copy thereof is contained in the answer, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the plaintiff file with the Clerk five days after the service of the answer an affidavit denying the same. Sec. 55. In all cases of the verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters, that he believes it to be true. And where a pleading is verified, it shall be by the affidavit of the party, unless he be absent from the County where the attorneys reside, or from some cause unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except party, he shall set forth in the affidavit the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; or when the State, or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts; except that in actions prosecuted by the Attorney-General in behalf of the State, the pleadings need not, in any case, be verified. |
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quainted with the facts; except that in actions prosecuted by the Attorney-General in behalf of the State, the pleadings need not, in any case, be verified. Sec. 56. It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged, but he shall deliver to the adverse party within five days after a demand thereof, in writing, a copy of the account, or be precluded from giving evidence thereof. The Court, or a Judge thereof, may order a further account when the one delivered is too general or is defective in any particular. Sec. 57. If irrelevant or redundant matter be inserted in a pleading, it may be stricken out by the Court on motion of any person aggrieved thereby. Sec. 58. In an action for the recovery of real property, such property shall be described, with its metes and bounds, in the complaint, or with other equal certainty. Sec. 59. In pleading a judgment or other determination of a Court, or officer of especial jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction. Sec. 60. In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall establish on the trial the facts showing such performance. Sec. 61. In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the Court shall thereupon take judicial notice thereof. Sec. 62. In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the action arose; but it shall be sufficient to state generally that the same was published, or spoken, concerning the plaintiff; and if such allegation be controverted, the plaintiff shall establish on the trial that it was so published or spoken. Sec. 63. In the actions mentioned in the last Section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and, whether he prove the justification or not, he may give in evidence the mitigating circumstances. Sec. 64. The plaintiff may unite several causes of action in the same complaint, when they all arise out of: First-Contracts express or implied; or: Second-Claims to recover specific real property, with or without damages, for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; or: Third-Claims to recover specific personal property, with or without damages, for the withholding thereof; or: Fourth-Claims against a trustee, by virtue of a contract, or by operation of law; or: Fifth-Injuries to character; or: Sixth-Injuries to person; or: Seventh-Injuries to property. But the causes of action so united shall all belong to only one of these classes, and shall affect all the parties to the action, and not require different places of trial, and shall be separately stated; provided, however, that an action for malicious arrest and prosecution, or either of them, may be united with an action for either injury to character or to the person. |
Items of account need not be set forth.
Irrelevant matter.
Recovery of real property. Judgement.
Conditions precedent.
Private statutes.
Libel or slander, in action for.
Truth may be alleged.
Several causes of action in one complaint. |
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Allegations when taken as true.
Material allegations.
Answer after demurrer.
Amendment of pleadings.
Time for answer.
Plaintiff ignorant of defendants name.
Pleadings, how construed.
Error. when to be disregarded. |
them, may be united with an action for either injury to character or to the person. Sec. 65. Every material allegation of the complaint, when it is verified, not specifically controverted by the answer, shall for the purpose of the action be taken as true. The allegation of new matter in the answer, shall on the trial be deemed controverted by the adverse party. Sec. 66. A material allegation in a pleading is one essential to the claim, or defense, and which could not be stricken from the pleading without leaving it insufficient. Sec. 67. After demurrer, and before the trial of issue on demurrer, either party may, within ten days, amend any pleading demurred to, of course, and without costs, filing the same as amended, and serving a copy thereof upon the adverse party or his attorney, who shall have ten days to answer or demur thereto if the pleading be a complaint, or to demur thereto if it be an answer; but a party shall not so amend more than once. When a demurrer to a complaint is overruled and there is no answer filed, the Court may, upon such terms as shall be just, and upon payment of costs, allow the defendant to file an answer. If a demurrer to the answer be overruled, the facts alleged in the answer shall still be considered as denied. Sec. 68. The Court may, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may upon like terms enlarge the time for an answer or demurrer, or demurrer to an answer filed. The Court may likewise, upon affidavit showing good cause therefor, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars, and may upon like terms allow an answer to be made after the time limited by this Act, and may, upon such terms as may be just, and upon payment of costs, relieve a party or his legal representatives from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; and when, from any cause, the summons and a copy of the complaint in an action have not been personally served on the defendant, the Court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action. Sec. 69. When the plaintiff is ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered the pleading or proceeding may be amended accordingly. Sec. 70. In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties. Sec. 71. The Court shall in every stage of an action disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect. |
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TITLE V.
Of the Provisional Remedies in Civil Actions.
CHAPTER 1-Arrest and Bail.
Sec. 72. No person shall be arrested in a civil action except as prescribed by this Act. Sec. 73. The defendant may be arrested, as hereinafter prescribed, in the following cases arising after the passage of this Act: First-In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State with intent to defraud his creditors, or when the action is for libel or slander. Second-In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for misconduct or neglect in office, or in a professional employment, or for a willful violation of duty. Third-In an action to recover the possession of personal property unjustly detained, when the property or any part thereof has been concealed, removed or disposed of, so that it cannot be found or taken by the Sheriff. Fourth-When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention or conversion of which the action is brought. Fifth-When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. Sec. 74. An order for the arrest of the defendant shall be obtained from a Judge of the Court in which the action is brought. Sec. 75. The order may be made whenever it shall appear to the Judge, by the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and the case is one of those mentioned in Section seventy-three. The affidavit shall be either positive or upon information and belief; and when upon information and belief, it shall state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit shall be filed with the Clerk of the Court. Sec. 76. Before making the order the Judge shall require a written undertaking, payable in gold coin of the United States, on the part of the plaintiff, with sureties, to the effect that if the defendant recover judgment the plaintiff will pay all costs and charges that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least five hundred dollars. Each of the sureties shall annex to the undertaking an affidavit that he is a resident and householder or freeholder within the State, and worth double the sum specified in the undertaking over and above all his debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the Clerk of the Court. Sec. 77. The order may be made to accompany the summons, or any time afterwards before judgment. It shall require the Sheriff of the county where the defendant may be found, |
Arrest.
When may be made.
Order for, how obtained. Same.
Plaintiff to give undertaking.
When order may be made, form. |
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Order, duty of Sheriff.
How executed.
Defendant, how discharged.
Bail, how given.
Surrender.
May arrest defendant.
Judgement against.
How exonerated.
Proceedings after arrest. |
the county where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, naming the money or currency in which it is payable, and to return the order at a time therein mentioned to the Clerk of the Court in which the action is pending. Sec. 78. The order of arrest, with a copy of the affidavit upon which it is made, shall be delivered to the Sheriff, who, upon arresting the defendant, shall deliver to him the copy of the affidavit, and also, if desired, a copy of the order of arrest. Sec. 79. The Sheriff shall execute the order by arresting the defendant and keeping him in custody until discharged by law. Sec. 80. The defendant, at any time before execution, shall be discharged from the arrest either upon giving bail or upon depositing the amount mentioned in the order of arrest in the money or currency therein named, as provided in this Chapter. Sec. 81. The defendant may give bail by causing a written undertaking, payable in the money of the contract, (if any be named) and in other cases as directed by the Judge, to be executed by two or more sufficient sureties, stating their places of residence and occupations, to the effect that they are bound in the amount mentioned in the order of arrest; that the defendant shall at all times render himself amenable to the process of the Court during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that they will pay to the plaintiff the amount of any judgment which may be recovered in the action. Sec. 82. At any time before judgment, or within ten days thereafter, the bail may surrender the defendant in their exoneration; or he may surrender himself to the Sheriff of the county where he was arrested. Sec. 83. For the purpose of surrendering the defendant, the bail, at any time or place before they are finally charged, may themselves arrest him; or by a written authority, indorsed on a certified copy of the undertaking, may empower the Sheriff to do so. Upon the arrest of the defendant by the Sheriff, or upon his delivery to the Sheriff by the bail, or upon his own surrender, the bail shall be exonerated, provided, such arrest, delivery or surrender take place before the expiration of ten days after judgment; but if such arrest, delivery or surrender be not made within ten days after judgment, the bail shall be finally charged on their undertaking, and be bound to pay the amount of the judgment within ten days thereafter. Sec. 84. If the bail neglect or refuse to pay the judgment within ten days after they are finally charged, an action may be commenced against such bail for the amount of such original judgment. Sec. 85. The bail shall also be exonerated by the death of the defendant, or his imprisonment in a State Prison, or by his legal discharge from the obligation to render himself amenable to the process. Sec. 86. Within the time limited for that purpose, the Sheriff shall file the order of arrest in the office of the Clerk of the Court in which the action is pending, with his return indorsed thereon, together with a copy of the undertaking of the bail. The original undertaking he shall retain in his possession until filed, as herein provided. The plaintiff within ten days thereafter may serve upon the Sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted them, and the Sheriff shall be exonerated from liability. If no notice be served within ten days, the original undertaking shall be filed with the Clerk of the Court. |
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Sec. 87. Within five days after the receipt of notice, the Sheriff or defendant may give to the plaintiff, or his attorney, notice of the justification of the same, or other bail (specifying the places of residence and occupations of the latter) before the Judge of the Court, or Clerk, at a specified time and place; the time to be not less than five nor more than ten days thereafter, except by consent of parties. In case other bail be given there shall be a new undertaking. Sec. 88. The qualifications of bail shall be as follows: First-Each of them shall be a resident, and householder, or freeholder, within the county. Second-Each shall be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this Chapter, over and above all his debts and liabilities, exclusive of property exempt from execution; but the Judge, or Clerk, on justification, may allow more than two sureties to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail. Sec. 89. For the purpose of justification, each of the bail shall attend before the Judge, or Clerk, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the Judge or Clerk in his discretion may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff. Sec. 90. If the Judge, or Clerk, find the bail sufficient, he shall annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed, and the Sheriff shall thereupon be exonerated from liability. Sec. 91. The defendant may at the time of his arrest, instead of giving bail, deposit with the Sheriff the amount mentioned in the order. In case the amount of the bail be reduced, as provided in this Chapter, the defendant may deposit such amount instead of giving bail. In either case the Sheriff shall give the defendant a certificate of the deposit made, and the defendant shall be discharged out of custody. Sec. 92. The Sheriff shall immediately after the deposit pay the same into Court, and take from the Clerk receiving the same two certificates of such payment; the one of which he shall deliver or transmit to the plaintiff, or his attorney, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the Sheriff to collect the sum deposited as in other cases of delinquency. Sec. 93. If money be deposited, as provided in the last two Sections, bail may be given, and may justify upon notice at any time before judgment; and on the filing of the undertaking and justification with the Clerk, the money deposited shall be refunded by such Clerk to the defendant. Sec. 94. Where money shall have [been] deposited, if it remain on deposit at the time of a recovery of a judgment in favor of the plaintiff, the Clerk shall, under the direction of the Court, apply the same in satisfaction thereof, and after satisfying the judgment shall refund the surplus, in any, to the defendant. If the judgment be in favor of the defendant, the Clerk shall, under like direction of the Court, refund to him the whole sum deposited and remaining unapplied. Sec. 95. If, after being arrested, the defendant escape or be rescued, the Sheriff shall himself be liable as bail; but he may discharge himself from such liability by the giving and justification of bail at any time before judgment. |
Notice of justification of bail.
Qualifications of bail.
Bail, how to justify.
Allowance of bail.
Deposit in lieu of bail.
Disposition of deposit.
Bail after deposit.
Application of deposit after judgment.
Liability of Sheriff. |
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Judgment against Sheriff.
Vacating order of arrest.
Reduction of bail.
When claim may be made.
Affidavit to obtain order for delivery.
Delivery.
Proceedings on. |
Sec. 96. If a judgment be recovered against the Sheriff, upon his liability as bail, and an execution thereon be returned unsatisfied, in whole or in part, the same proceedings may be had on his official bond for the recovery of the whole or any deficiency, as in other cases of delinquency. Sec. 97. A defendant arrested may, at any time before the justification of bail, apply to the Judge who made the order, or the Court in which the action is pending, upon reasonable notice to the plaintiff to vacate the order of arrest, or to reduce the amount of bail. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs in addition to those on which the order of arrest was made. Sec. 98. If upon such application it shall satisfactorily appear that there was not sufficient cause for the arrest, the order shall be vacated, or if it satisfactorily appear that the bail was fixed too high, the amount shall be reduced.
CHAPTER 2-Claims and Delivery of Personal Property.
Sec. 99. The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him as provided in this chapter. Sec. 100. Where a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf, showing: First-That the plaintiff is the owner of the property claimed, (particularly describing it) or is lawfully entitled to the possession thereof. Second-That the property is wrongfully detained by the defendant. Third-The alleged cause of the detention thereof according to his best knowledge, information and belief. Fourth-That the same has not been taken for a tax, assessment or fine, pursuant to a statute, or seized under an execution or an attachment against the property of the plaintiff, or, if so seized, that it is by statute exempt from such seizure; and, Fifth-The actual value of the property. Sec. 101. The plaintiff or his attorney may thereupon, by indorsement in writing upon the affidavit, require the Sheriff of the county where the property claimed may be, to take the same from the defendant. Sec. 102. Upon a receipt of the affidavit and notice, with a written undertaking, executed by two or more sufficient sureties, approved by the Sheriff, to the effect that they are bound to the defendant in double the value of the property, in gold coin of the United States, as stated in the affidavit for the prosecution of the action, for the return of the property to the defendants, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, in gold coin of the United States, the Sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall also, without delay, serve on the defendant a copy of the affidavit, notice and undertaking, by delivering the same to him personally, if he can be found, or to his agent, from whose possession the property is taken; or, if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion; or if neither have any known place of abode, by putting them in the nearest Post Office, directed to the defendant. |
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discretion; or if neither have any known place of abode, by putting them in the nearest Post Office, directed to the defendant. Sec. 103. The defendant may, within two days after the service of a copy of the affidavit and the undertaking, give notice to the Sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice in like manner as upon bail on arrest; and the Sheriff shall be responsible for the sufficiency of the sureties until the objection to them is either waived, as above provided, or until they justify. If the defendant except to the sureties, he cannot reclaim the property, as provided in the next Section. Sec. 104. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the Sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, in gold coin of the United States, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum, in gold coin of the United States, as may for any cause be recovered against the defendant. If a return of the property be not so required within five days after the taking and serving of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section one hundred and nine. Sec. 105. The defendants sureties, upon notice to the plaintiff of not less than two or more than five days, shall justify before the Judge or the Clerk, in the same manner as upon bail on arrest; and upon such justification the Sheriff shall deliver the property to the defendant. The Sheriff shall be responsible for the defendants sureties until they justify, or until the justification is completed or expressly waived, and may retain the property until that time. If they or others in their place fail to justify at the time and place appointed, he shall deliver the property to the plaintiff. Sec. 106. The qualification of sureties and their justification shall be such as are prescribed by this Act in respect to bail upon an order of arrest. Sec. 107. If the property, or any part thereof, be concealed in a building or enclosure, the Sheriff shall publicly demand its delivery. If it be not delivered, he shall cause the building or enclosure to be broken open, and take the property into his possession; and if necessary he may call to his aid the power of his county. Sec. 108. When the Sheriff shall have taken property, as in this Chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto upon receiving his lawful fees for taking and necessary expenses for keeping the same. Sec. 109. If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto, or right to possesion thereof, stating the grounds of such title or right, and serve the same upon the Sheriff, the Sheriff shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, indemnify the Sheriff against such claim by an undertaking, made payable in gold coin of the United States, by two sufficient sureties, accompanied by their affidavits that they are each worth double the value of the property as specified in the affidavit of the plaintiff, over and above their debts and liabilities, exclusive of property exempt from execution, and are freeholders or householders in the county; and no claim to such property by any other person than the defendant or his agent shall be valid against the Sheriff unless so made. |
Sureties, excepting to.
Defendant may require return.
Justification of defendants sureties.
Qualification of sureties. Property concealed.
Sheriff to keep property.
Proceedings when property claimed by other person. |
κ1869 Statutes of Nevada, Page 212 (CHAPTER 112)κ
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Notice, etc., to be filed.
Injunction defined.
In what cases may be granted.
When may be granted.
After answer.
Undertaking.
Order for hearing. |
exempt from execution, and are freeholders or householders in the county; and no claim to such property by any other person than the defendant or his agent shall be valid against the Sheriff unless so made. Sec. 110. The Sheriff shall file the notice, undertaking and affidavit, with his proceedings thereon, with the Clerk of the Court in which the action is pending, within twenty days after taking the property mentioned therein.
CHAPTER 3-Injunction.
Sec. 111. An injunction is a writ or order requiring a person to refrain from a particular act. The order or writ may be granted by the Court in which the action is brought, or by a Judge thereof, and, when made by a Judge, may be enforced as the order of the Court. Sec. 112. An injunction may be granted in the following cases: First-When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief or any part thereof consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. Second-When it shall appear by the complaint or affidavit that the commission or continuance of some act, during the litigation, would produce great or irreparable injury to the plaintiff. Third-When it shall appear, during the litigation, that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiffs rights respecting the subject of the action, and tending to render the judgment ineffectual. Sec. 113. The injunction may be granted at the time of issuing the summons upon the complaint, and at any time afterwards, before judgment, upon affidavits or other evidence. The complaint in the one case, and the affidavits or other evidence in the other, shall show satisfactorily that sufficient grounds exist therefor. No injunction shall be granted on the complaint, unless it be verified by the oath of the plaintiff, or some one in his behalf, that he, the person making the oath, has read the complaint or heard the complaint read, and knows the contents thereof, and the same is true of his own knowledge, except the matters therein stated on information and belief, and that as to those matters he believes it to be true. When granted on the complaint a copy of the complaint and verification attached shall be served with the injunction; when granted upon affidavit, without notice, a copy of the affidavit shall be served with the injunction. Sec. 114. An injunction shall not be allowed after the defendant has answered unless upon notice, or upon an order made as provided in section one hundred and sixteen, but in such case the defendant may be restrained until the decision of the Court or Judge granting or refusing the injunction. Sec. 115. On granting an injunction, or a restraining order, the Court or Judge shall require, except where the State is a party plaintiff, a written undertaking, with sufficient sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the Court finally decide that the plaintiff was not entitled thereto. Sec. 116. If the Court or Judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order shall be made fixing a time and place for hearing the application for the injunction, a copy of which order shall be served upon the person or persons designated therein, and the defendant may in the mean time be restrained. |
κ1869 Statutes of Nevada, Page 213 (CHAPTER 112)κ
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junction, an order shall be made fixing a time and place for hearing the application for the injunction, a copy of which order shall be served upon the person or persons designated therein, and the defendant may in the mean time be restrained. Upon the hearing the parties may use affidavits, other written evidence and oral testimony. Sec. 117. An injunction or restraining order to suspend the general and ordinary business of a corporation shall not be granted without due notice of the application therefor, to be served in the manner prescribed for service of the summons in the action. Sec. 118. If an injunction be granted without notice, the defendant at any time before the trial, may apply, upon reasonable notice, to the Judge who granted the injunction, or to the Court in which the action is pending, or a Judge thereof, to dissolve or modify the same. The application may be made upon the complaint and the affidavit, or affidavits, on which the injunction was granted, if any were used, or upon affidavits or other testimony on the part of the defendant, with or without the answer. If the application be made upon affidavit, or other evidence, on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence in addition to the affidavits on which the injunction was granted, and the defendant may then in proper cases introduce rebutting affidavits or other evidence; provided, that for the purpose of allowing the plaintiff to introduce further evidence, the answer or verification thereto attached shall be deemed an affidavit. Sec. 119. The Supreme Court may prescribe by rule the time when, and the cases in which, the service of affidavits to be used upon applications for injunctions, and motions to dissolve injunctions, shall be made; and may also provide by rule for the giving of notice before such hearings of the kind of testimony to be used, and make all needful rules on the subject of injunctions not in conflict with this or other Acts. Sec. 120. If upon the hearing of an application for an injunction, or for the dissolution of an injunction, it does not satisfactorily appear that there is a sufficient cause for an injunction, or if it appear that the extent of the injunction is too great, it shall be refused, dissolved, or modified, as the case may be, and upon all such applications in actions respecting mines the Court, or Judge hearing the same, may, instead of granting or continuing the injunction, make an order requiring the party against whom the application is made to give a bond in an amount fixed by such Court or Judge, with sufficient sureties, to be approved by such Court or Judge, conditioned for the payment to the plaintiff of all damages which he may sustain by reason of the use or occupation of the mine, or other acts complained of, by the party giving the bond, his or its agents, servants, employes, grantees, or other persons by his or its consent pending the litigation, if the plaintiff finally recover; or that upon failure to give such bond within the time prescribed in the order, the injunction shall be granted, or continued, as the case may be; or the Court, or Judge, may appoint a receiver, to take charge of the mine, or the proceeds thereof, pending the litigation. Sec. 121. It shall be good cause in the discretion of the Court, or Judge, for the dissolution of an injunction that the plaintiff is doing, or causing, or permitting to be done, some act pending the litigation which, if continued, will be injurious to the defendant if he finally recover, or to the property in dispute. But the Court, or Judge, hearing a motion to dissolve an injunction, |
Injunction to suspend business of corporation.
Motion to dissolve or modify.
Supreme Court to prescribe rule, etc.
Injunction may be refused, etc.
Dissolution of injunction. |
κ1869 Statutes of Nevada, Page 214 (CHAPTER 112)κ
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Gold coin.
Attachment.
Writ, how issued.
Undertaking required.
Requirement of writ. |
a motion to dissolve an injunction, may instead of granting such motion, direct by order that the plaintiff give to the parties restrained a bond conditioned, as provided in Section One Hundred and Twenty, or upon his failure to do so, within the time prescribed in such order that the injunction shall be dissolved. Sec. 122. All undertakings and bonds provided for in this Chapter shall be made payable in gold coin of the United States.
CHAPTER 4-Attachment.
Sec. 123. The plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as hereinafter provided in the following cases: First-In an action upon a contract for the direct payment of money, made, or by the terms thereof, payable in this State, which is not secured by mortgage, lien or pledge upon real or personal property situated or being in this State, or, if so secured, when such security has been rendered nugatory by the act of the defendant. Second-In an action upon a contract against a defendant not residing in this State. Sec. 124. The Clerk of the Court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, showing: First-That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-offs or counter claims) upon a contract for the direct payment of money, and that such contract was made, or is, by the terms thereof, payable in this State, and that the payment of the same has not been secured by any mortgage, lien, or pledge upon real or personal property situate or being in this State, or, if so secured, that said security has been rendered nugatory by the act of the defendant; or: Second-That the defendant is indebted to the plaintiff, (specifying the amount of such indebtedness as near as may be over and above all legal set-offs or counter claims) and that the defendant is a nonresident of the State. Third-That the sum for which the attachment is asked is an actual, bona fide, existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought and the action is not prosecuted to hinder, delay or defraud any creditor of the defendant. Sec. 125. Before issuing the writ the Clerk shall require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, not exceeding the amount claimed by the plaintiff, in gold coin of the United States, with sufficient sureties, to the effect that if the defendant recover judgment the plaintiff will pay, in gold coin of the United States, all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. Sec. 126. The writ shall be directed to the Sheriff of any county in which property of such defendant may be, and require him to attach and safely keep all the property of such defendant within his county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiffs demand, the amount of which shall be stated in conformity with the complaint, unless the defendant give him security by the undertaking, of at least two sufficient sureties, in an amount sufficient to satisfy such demand, besides cost, in the money or currency of the contract, in which case to take such undertaking. |
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sufficient to satisfy such demand, besides cost, in the money or currency of the contract, in which case to take such undertaking. Several writs may be issued at the same time to the Sheriffs of different counties. Sec. 127. The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profits therein, and all debts due such defendant, and all other property in this State of such defendant not exempt from execution, may be attached, and if judgment be recovered be sold to satisfy the judgment and execution. Sec. 128. The Sheriff to whom the writ is directed and delivered shall execute the same without delay, and if the undertaking mentioned in Section One Hundred and Twenty-six be not given-as follows: First-Real property shall be attached by leaving a copy of the writ with the occupant thereof; or if there be no occupant, by posting a copy in a conspicuous place thereon, and filing a copy, together with a description of the property attached, with the Recorder of the county. Second-Personal property capable of manual delivery shall be attached by taking it into custody. Third-Stock or shares, or interest in stock or shares, of any corporation or company, shall be attached by leaving with the President, or other head of the same, or the Secretary, Cashier or Managing Agent thereof, a copy of the writ, and a notice stating the stock or interest of the defendant is attached in pursuance of such writ. Fourth-Debts and credits, and other personal property, not capable of manual delivery, shall be attached by leaving with the person owing such debts, or having in his possession, or under his control, such credits or other personal property, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits and other personal property in his possession or under his control belonging to the defendant, are attached in pursuance of such writ. Sec. 129. Upon receiving information in writing from the plaintiff or his attorney, that any person has in his possession, or under his control, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the Sheriff shall serve upon such person a copy of the writ, and a notice that such credits, or other property or debts, as the case may be, are attached in pursuance of such writ. Sec. 130. All persons having in their possession, or under their control, any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, as provided in the last two Sections, shall be, unless such property is delivered up or transferred, or such debts be paid to the Sheriff, liable to the plaintiff for the amount of such credits, property or debts, until the attachment be discharged or any judgment recovered by him be satisfied. Sec. 131. Any person owing debts to the defendant, or having in his possession or under his control any credits or other personal property belonging to the defendant, may be required to attend before the Court, or Judge, or a referee appointed by the Court or Judge, and be examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The Court, or Judge, may, after such examination, order personal property capable of manual delivery to be delivered to the Sheriff on such terms as may be just, having reference to any liens thereon or claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof. |
What property may be attached.
How writ should be executed.
Property in hands of other person.
Liability of other persons.
Examination. |
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Return of Sheriff.
Perishable property to be sold.
Property claimed by third party.
Judgment, how satisfied.
Notice of sale.
Same.
Proceedings when execution returned unsatisfied.
Proceedings when defendant recovers judgment. |
Sec. 132. The Sheriff shall make a full inventory of the property attached, and return the same with the writ. To enable him to make such returns as to debts and credits attached, he shall request at the time of service the party owing the debt, or having the credit, to give him a memorandum stating the amount and description of each; and if such memorandum be refused, he shall return the fact of refusal with the writ. The party refusing to give the memorandum may be required to pay the costs of any proceeding taken for the purpose of obtaining information respecting the amount and description of such debt or credit. Sec. 133. If any of the property attached be perishable, the Sheriff shall sell the same in the manner in which such property is sold on execution. The proceeds and other property attached by him shall be retained by him, to answer any judgment that may be recovered in the action, unless sooner subject to execution upon another judgment recovered previous to the issuing of the attachment. Debts and credits attached may be collected by him, if the same can be done without suit. The Sheriffs receipt shall be a sufficient discharge for the amount paid. Sec. 134. If any personal property attached be claimed by a third person as his property, the Sheriff may summon a jury of six men to try the validity of such claim; and such proceedings shall be had thereon, with the like effect, as in case of a claim after levy upon execution. Sec. 135. If judgment be recovered by the plaintiff, the Sheriff shall satisfy the same out of the property attached by him which has not been delivered to the defendant, or a claimant as hereinafter provided, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it be sufficient for that purpose: First-By paying to the plaintiff the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment. Second-If any balance remain due, and an execution shall have been issued on the judgment, he shall sell under the execution, so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in his hands. Notice of the sales shall be given, and the sales conducted as in other cases of sales on execution. Sec. 136. If, after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits collected by him, deducting the fees, to the payment of the judgment, any balance shall remain due, the Sheriff shall proceed to collect such balance as upon an execution in other cases. Whenever the judgment shall have been paid, the Sheriff, upon reasonable demand, shall deliver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment. Sec. 137. If the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to Section one hundred and twenty-six, or Section one hundred and forty, or he may proceed as in other cases upon the return of an execution. Sec. 138. If the defendant recover judgment against the plaintiff, any undertaking received in the action, all the proceeds of sales and money collected by the Sheriff, and all the property attached remaining in the Sheriffs hands, shall be delivered to the defendant or his agent; the order of attachment shall be discharged and the property released therefrom. |
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Sec. 139. Whenever the defendant shall have appeared in the action, he may apply, upon reasonable notice to the plaintiff, to the Court in which the action is pending, or to the Judge thereof, for an order to discharge the attachment, wholly or in part, upon the execution and filing of the undertaking mentioned in the next section. Such order may be granted directing the release from the operation of the attachment, upon the filing of such undertaking and the justification of the sureties thereon, if required by the plaintiff, of all or any part of the property, money, debts or credits attached, as the case may be. All the proceeds of sales and moneys collected by the Sheriff, and all the property attached remaining in his hands, so released, shall be delivered or paid to the defendant upon the filing of such undertaking and making such justification, if required by the plaintiff. Sec. 140. On granting such order the Court or the Judge shall require an undertaking on behalf of the defendant, with at least two sureties, residents and freeholders or householders in the county, which shall be filed to the effect, in case the value of the property or the amount of money, debts or credits sought to be released shall equal or exceed the amount claimed by the plaintiff in the complaint, that the defendant will pay to the plaintiff the amount of the judgment which may be recovered in favor of the plaintiff in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount so claimed by the plaintiff, and in the money or currency of the contract; or to the effect, in case the value of the property or the amount of money, debts or credits sought to be released shall be less than the amount so claimed by the plaintiff, that the defendant will pay the amount of such judgment, to the extent of the value of the property, or amount of money, or debts or credits sought to be released, not exceeding the sum specified in the undertaking, which shall be at least double the value of such property, money, debts or credits, and in the money or currency of the contract. The value of the property sought to be released, if disputed, shall be determined, in the money or currency of the contract, by the Court or Judge thereof, upon proof, or by a sworn appraiser or sworn appraisers, not exceeding three, to be appointed by the Court or the Judge for that purpose. Before filing the undertaking the defendant shall serve a copy thereof upon the plaintiff, and if the plaintiff require a justification by the sureties, he shall give notice thereof to the defendant within two days; or at the time of giving notice of motion for an order to discharge the attachment, the defendant may in his notice name the sureties, and if the plaintiff require them to justify he shall give notice thereof at the hearing of the motion. If required, the sureties shall justify before the Court in which the suit is pending, or the Judge thereof, after reasonable notice. Sec. 141. The defendant may also, any time before the time of answering expires, apply on motion, upon reasonable notice to the plaintiff, to the Court in which the action is brought, or to the Judge thereof, for the discharge of the attachment, on the ground that the writ was improperly issued. Sec. 142. If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the writ of attachment was issued. Sec. 143. If upon such application it shall satisfactorily appear that the writ of attachment was improperly issued, it shall be discharged. |
Discharge of attachment, when made.
Undertaking of defendant.
Motion for discharge of attachment.
Plaintiff may oppose by other evidence.
Discharge of writ. |
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Return of Sheriff.
Court may order delivery.
Appointment of receiver.
Judgment.
How given.
Against several defendants.
Extent of relief.
Dismissal of action, or nonsuit. |
Sec. 144. The Sheriff shall return the writ of attachment with the summons, if issued at the same time; otherwise within twenty days after its receipt, with a certificate of his proceeding indorsed thereon or attached thereto.
CHAPTER 5.-Deposit in Court.
Sec. 145. When it is admitted, by the pleading or examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which being the subject of litigation is held by him as trustee for another party, or which belongs or is due to another party, the Court may order the same, upon motion, to be deposited in Court, or delivered to such party, upon such conditions as may be just, subject to the further direction of the Court. Sec. 146. A receiver may be appointed by the Court in which the action is pending, or by a Judge thereof: First-Before judgment, provisionally, on the application of either party, when he establishes a prima facie right to the property, or an interest in the property which is the subject of the action, and which is in the possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially injured or impaired. Second-After judgment to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal; and Third-In such other cases as are in accordance with the practice of Courts of Equity jurisdiction.
TITLE VI.
Of the Trial and Judgment in Civil Actions.
CHAPTER 1-Judgment in General.
Sec. 147. A judgement is the final determination of the rights of the parties in [the] action or proceeding, and may be entered in term or vacation. Sec. 148. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves. Sec. 149. In an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper. Sec. 150. The relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint; but in any other case the Court may grant him any relief consistent with the case made by the complaint, and embraced within the issue. Sec. 151. An action may be dismissed, or a judgment of nonsuit entered in the following cases: First-By the plaintiff himself at any time before trial, upon the payment of costs, if a counter claim has not been made. If a provisional remedy has been allowed, the undertaking shall thereupon be delivered by the Clerk to the defendant, who may have his action thereon. |
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may have his action thereon. Second-By either party upon the written consent of the other. Third-By the Court when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. Fourth-By the Court when upon trial and before the final submission of the case the plaintiff abandons it. Fifth-By the Court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. The dismissal mentioned in the first two subdivisions shall [be] made by an entry in the Clerks register. Judgment may thereupon be entered accordingly. In every other case the judgment shall be rendered on the merits.
CHAPTER 2-Judgment upon Failure to Answer.
Sec. 152. Judgment may be had, if the defendant fail to answer the complaint, as follows: First-In an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the Clerk of the Court within the time specified in the summons, or such further time as may have been granted, the Clerk, upon the application of the plaintiff, shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, including the costs, against the defendant, or against one or more of several defendants, in the cases provided for in Section thirty-two. Second-In other actions, if no answer has been filed with the Clerk of the Court within the time specified in the summons, or such further time as may have been granted, the Clerk shall enter the default of the defendant; and thereafter the plaintiff may apply, at the first, or any subsequent term of the Court, for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, be necessary to enable the Court to give judgment, or to carry the judgment into effect, the Court may take the account, or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of damages, in whole or in part, the Court may order the damages to be assessed by a jury; or, if, to determine the amount of damages, the examination of a long account be necessary, by a reference, as above provided. Third-In actions where the service of the summons was by publication, the plaintiff, upon the expiration of the time designated in the order of publication, may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the Court shall thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the State, shall require the plaintiff, or his agent, to be examined on oath respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover.
CHAPTER 3.-Of Issues, and the Manner of their Disposition.
Sec. 153. An issue arises when a fact or conclusion of law is maintained by the one party, and controverted by the other. Issues are of two kinds: First-Of law; and: Second-Of fact. |
Judgment on failure to answer.
When an issue arises. |
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Of law.
Of fact.
Of law, how tried.
Of fact, how tried.
Entry of cases on calendar.
Postponement of trial. |
Sec. 154. An issue of law arises upon a demurrer to the complaint, or an answer as to some part thereof. Sec. 155. An issue of fact arises: First-Upon a material allegation in the complaint, controverted by the answer; and: Second-Upon new matter in the answer, except an issue of law is joined therein. Sec. 156. An issue of law shall be tried by the Court unless it be referred, upon consent, as provided in Chapter Six of this Title. Sec. 157. An issue of fact shall be tried by a jury, unless a jury trial is waived, or a reference be ordered as provided in this Act. Where there are issues, both of law and fact, to the same complaint, the issue of law shall be first disposed of. Sec. 158. The Clerk shall enter cases upon the calendar of the Court according to the date of the issue, unless otherwise provided by rule of Court. Sec. 159. Either party may bring the issue to trial, or to a hearing, and in the absence of the adverse party, unless the Court for good cause otherwise direct, may proceed with his case and take a dismissal of the action, or a verdict or judgment, as the case may require. Sec. 160. A motion to postpone a trial, on the ground of the absence of evidence, shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The Court may also require the moving party to state upon affidavit the evidence which he expects to obtain; and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be postponed. The party obtaining the postponement of a trial shall also, if required by the adverse party, consent that the testimony of any witness of such adverse party who is in attendance, be then taken by deposition before a Judge or Clerk of the Court in which the case is pending, or before such Notary Public as the Court may indicate, which shall accordingly be done, and the testimony so taken may be read on the trial with the same effect, and subject to the same objections as if the witnesses were produced. In actions involving the title to mining claims and quartz ledges, if it be made to appear to the satisfaction of the Court that in order that justice may be done, and the action fairly tried on its real merits, it is necessary that further developments should be made, and that the party applying has been guilty of no laches and is acting in good faith, the Court shall grant the postponement of the trial of the action, giving the party a reasonable time in which to prepare for trial. And in granting such postponement the Court may, in its discretion, annex as a condition thereto, an order that the party obtaining such postponement shall not, pending the trial of the action, remove from the premises in controversy any valuable quartz rock, earth or ores, and for any violation of an order so made, the Court or the Judge thereof may punish for contempt, as in the cases of violation of an order of injunction, and may also vacate the order of postponement. |
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CHAPTER 4.-Trial by Jury.
ARTICLE 1.
Formation of the Jury.
Sec. 161. When the action is called for trial by jury, the Clerk shall prepare separate ballots, containing the names of the jurors summoned who have appeared and not been excused, and deposit them in a box. He shall then draw from the box twelve names, and the persons whose names are drawn shall constitute the jury. If the ballots become exhausted before the jury is complete, or if from any cause a juror or jurors be excused or discharged, the Sheriff shall summon, under the direction of the Court, from the citizens of the county, and not from bystanders, so many qualified persons as may be necessary to complete the jury. The jury shall consist of twelve persons, unless the parties consent to a less number. The parties may consent to any number not less than four. Such consent shall be entered by the Clerk in the minutes of the trial. Sec. 162. As soon as the jury is completed, an oath or affirmation shall be administered to the jurors, in substance that they, each of them, will well and truly try the matter in issue between---------, the plaintiff, and---------, the defendant, and a true verdict render according to the evidence. After the oath or affirmation has been administered and the jury has been fully impanneled, it shall be the duty of the Court to order the jury into the custody of the Sheriff, or other officer selected by the Court, and the jurors shall not be allowed to separate or depart from the custody of the Sheriff, or other officer, until they have been duly discharged, unless by the consent of the parties to the action, It shall be the duty of the Sheriff, at the charge of the parties to the action, to prepare suitable and comfortable apartments, and prepare food for the jury pending the trial. Sec. 163. Either party may challenge the jurors; but when there are several parties on either side, they shall join in a challenge before it can be made, unless the Court otherwise order or direct. The challenges shall be to individual jurors, and shall either be peremptory or for cause. Each party shall be entitled to four peremptory challenges. Sec. 164. Challenges for cause may be taken on one or more of the following grounds: First-A want of any of the qualifications prescribed by statute to render a person competent as a juror. Second-Consanguinity or affinity within the third degree to either party. Third-Standing in the relation of debtor or creditor, guardian and ward, master and servant, employer and clerk, or principal and agent to either party; or being a member of the family of either party; or a partner, or united in business with either party; or being security on any bond or obligation for either party. Fourth-Having served as a juror or been a witness on a previous trial between the same parties for the same cause of action; or being then a witness therein. Fifth-Interest on the part of the juror in the event of the action, or in the main question involved in the action; except the interest of the juror as a member or citizen of a municipal corporation. Sixth-Having formed or expressed an unqualified opinion or belief as to the merits of the action; or the main question involved therein; provided, that the reading of newspaper accounts of the subject matter before the Court shall not disqualify a juror either for bias or opinion. |
Jury, how drawn.
To be sworn, form of oath.
Challenge.
Challenge for cause. |
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Challenge, how tried.
Juror becoming sick.
Charge to jury.
Jury may decide in Court, or retire.
Duty of officer.
What papers jury may take.
Return of jury for instructions.
Proceedings when jury discharged. |
the reading of newspaper accounts of the subject matter before the Court shall not disqualify a juror either for bias or opinion. Seventh-The existence of a state of mind in the juror evincing enmity against or bias to either party. Sec. 165. Challenges for cause shall be tried by the Court. The juror challenged, and any other person, may be examined as a witness on the trial of the challenge.
ARTICLE II.
Conduct of the Trial.
Sec. 166. If, after the impanneling of the jury, and before verdict a juror become sick, so as to be unable to perform his duty, the Court may order him to be discharged. In that case, the trial may proceed with the other jurors, or a new jury may be sworn, and the trial begin anew; or the jury may be discharged, and a new jury then or afterwards impanneled. Sec. 167. In charging the jury, the Court shall state to them all matters of law which it thinks necessary for their information in giving their verdict; and if it state the testimony of the case, it shall also inform the jury that they are the exclusive judges of all questions of fact. The Court shall furnish to either party, at the time, upon request, a statement in writing of the points of law contained in the charge, or shall sign, at the time, a statement of such points prepared and submitted by the counsel of either party. On the trial, either party may require the Clerk to take down the testimony in writing. Sec. 168. After hearing the charge, the jury may either decide in Court, or retire for deliberation. If they retire, they shall be kept together in a room provided for them, or some other convenient place, under the charge of one or more officers, until they agree upon their verdict, or are discharged by the Court. The officer shall, to the utmost of his ability, keep the jury separate from other persons; he shall not suffer any communication to be made to them, or make any himself, unless by order of the Court or Judge, except to ask them if they have agreed upon their verdict; and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon. Sec. 169. Upon retiring for deliberation, the jury may take with them all papers (except depositions) which have been received as evidence in the cause, or copies of such papers as ought not, in the opinion of the Court, to be taken from the person having them in possession; and they may also take with them notes of the testimony, or other proceedings on the trial, taken by themselves or any of them; but none taken by any other person. Sec. 170. After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into Court. Upon their being [brought] into Court, the information required shall be given in the presence of, or after notice to, the parties or counsel. Sec. 171. In all cases where a jury are discharged, or prevented from giving a verdict by reason of accident or other cause during the progress of the trial, or after the cause is submitted to them, the action may be again tried, immediately or at a future time, as the Court shall direct. |
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may be again tried, immediately or at a future time, as the Court shall direct. Sec. 172. While the jury are absent, the Court may adjourn from time to time in respect to other business, but it shall nevertheless be deemed open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged. The Court may direct the jury to bring in a sealed verdict at the opening of the Court, in case of an agreement during a recess or adjournment for the day. A final adjournment of the Court for the term shall discharge the jury. Sec. 173. When the jury have agreed upon their verdict they shall be conducted into Court by the officer having them in charge. Their names shall then be called, and they shall be asked by the Court, or the Clerk, whether they have agreed upon their verdict; and if the foreman answer in the affirmative, they shall, on being required, declare the same. Sec. 174. If the verdict be informal or insufficient in not covering the whole issue or issues submitted, the verdict may be corrected by the jury under the advice of the Court, or the jury may again be sent out. Sec. 175. When the verdict is given and is not informal or insufficient, the Clerk shall immediately record it in full in the minutes, and shall read it to the jury, and inquire of them whether it be their verdict. If more than one-fourth of the jurors disagree, the jury shall be again sent out; but if no disagreement be expressed the verdict shall be complete, and the jury shall be discharged from the case.
ARTICLE 3.
The Verdict.
Sec. 176. The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant; a special verdict is that by which the jury find the facts only, leaving the judgment to the Court. The special verdict shall present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact shall be so presented as that nothing shall remain to the Court but to draw from them conclusions of law. Sec. 177. In an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases the Court may direct the jury to find a special verdict in writing upon all or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict of finding shall be filed with the Clerk, and entered upon the minutes. Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the Court shall give judgment accordingly. Sec. 178. When a verdict is found for the plaintiff, in an action for the recovery of money, or for the defendant, when a counter claim for the recovery of money is established exceeding the amount of the plaintiffs claim as established, the jury shall also find the amount of the recovery. |
without verdict. Final adjournment jury discharged.
Verdict.
May be corrected.
How recorded.
Verdict, kind of.
Same.
When to find amount of recovery. |
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In action to recover specific property.
Entry in minutes.
Jury trial may be waived.
Decisions of Court.
Chancery cases.
Order of reference.
Same. |
plaintiffs claim as established, the jury shall also find the amount of the recovery. Sec. 179. In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant, by his answer, claim a return thereof, the jury, if their verdict be in favor of the plaintiff, or if, being in favor of the defendant, they also find that he is entitled to a return thereof, shall find the value of the property, and may, at the same time, assess the damages, in gold coin, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property. Sec. 180. Upon receiving a verdict, an entry shall be made by the Clerk in the minutes of the Court, specifying the time of trial, the names of the jurors and witnesses, and the verdict; and where a special verdict is found, either the judgment rendered thereon, or if the case be reserved for argument or further consideration, the order thus reserving it.
CHAPTER 5-Trial by Court.
Sec. 181. Trial by jury may be waived by the several parties to an issue of fact in actions arising on contract, and with the assent of the Court in other actions, in the manner following: First-By failing to appear at the trial. Second-By written consent, in person, or by attorney, filed with the Clerk. Third-By oral consent in open Court, entered in the minutes. Sec. 182. Upon the trial of an issue of fact by the Court, its decision shall be given in writing, and filed with the Clerk, within ten days after the trial took place. In giving the decision, the facts found and the conclusions of law shall be separately stated. Judgment upon the decision shall be entered accordingly. Sec. 183. On a judgment upon an issue of law, if the taking of an account be necessary to enable the Court to complete the judgment a reference may be ordered. Chancery cases may be tried by the Court, with or without the finding of a jury, upon issues formed by the Court.
CHAPTER 6.-Of References and Trial by Referee.
Sec. 184. A reference may be ordered upon the agreement of the parties, filed with the Clerk, or entered in the minutes: First-To try any or all of the issues in an action or proceeding whether of fact or of law, and to report a judgment thereon. Second-To ascertain a fact necessary to enable the Court to proceed and determine the case. Sec. 185. When the parties do not consent, the Court may, upon the application of either, or of its own motion, direct a reference in the following cases: First-When the trial of an issue of facts requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein. Second-When the taking of an account is necessary for the information of the Court before judgment, or for carrying a judgment or order into effect. Third-When a question of fact, other than upon the pleadings, arises upon motion or otherwise in any stage of the action; or, Fourth-When it is necessary for the information of the Court in a special proceeding. |
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Sec. 186. A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties. If the parties do not agree, the Court or Judge shall appoint one or more referees, not exceeding three, who reside in the county in which the action or proceeding is triable, and against whom there is no legal objection. Sec. 187. Either party may object to the appointment of any person as referee on one or more of the following grounds: First-A want of any of the qualifications prescribed by statute to render a person competent as a juror. Second-Consanguinity or affinity within the third degree to either party. Third-Standing in the relation of guardian and ward, master and servant, employer and clerk, or principal and agent to either party, or being a member of the family of either party, or a partner in business with either party, or being security on any bond or obligation for either party. Fourth-Having served as a juror or been a witness on any trial between the same parties for the same cause of action, or being then a witness in the cause. Fifth-Interest on the part of such person in the event of the action, or in the main question involved in the action. Sixth-Having formed or expressed an unqualified opinion or belief as to the merits of the action. Seventh-The existence of a state of mind in such person evincing enmity against or bias to either party. Sec. 188. The objections taken to the appointment of any person as referee shall be heard and disposed of by the Court. Affidavits may be read and any person examined as a witness as to such objections. Sec. 189. The referees shall make their report within ten days after the testimony before them is closed. Their report upon the whole issue shall stand as the decision of the Court, and upon filing the report with the Clerk of the Court, judgment may be entered thereon in the same manner as if the action had been tried by the Court. The decision of the referees may be excepted to and reviewed in like manner as if made by the Court. When the reference is to report the facts, the report shall have the effect of a special verdict.
CHAPTER 7.-General Provisions Relating to Trials.
ARTICLE 1.
Exceptions.
Sec. 190. An exception is an objection taken at the trial to a decision upon a matter of law, whether such trial be by jury, Court or referees, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to a jury, or at any other time from the calling of the action for trial to the rendering of the verdict or decision. But no exception shall be regarded on a motion for a new trial, or on an appeal, unless the exception be material, and affect the substantial rights of the parties. Sec. 191. The point of the exception shall be particularly stated, and may be delivered in writing to the Judge, or, if the party require it, shall be written down by the Clerk. When delivered in writing, or written down by the Clerk, it shall be made conformable to the truth, or be at the time corrected until it is so made conformable. When not delivered in writing or written down as above, |
Number of persons to whom ordered.
Referees, objection to appointment.
Objections, how disposed of.
Report of referees.
Exception defined.
How taken. |
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Proviso.
Same.
When implied.
New trial.
For what causes granted.
Application, how made.
Prerequisites to motion for. |
not delivered in writing or written down as above, it may be entered in the Judges minutes and afterwards settled in a statement of the case, as provided in this Act; provided, that if the Judge shall in any case refuse to allow an exception in accordance with the facts, any party aggrieved thereby may petition the Supreme Court for leave to prove the same, and shall have the right so to do, in such mode and manner and according to such regulations as the Supreme Court may by rules impose, and such exceptions as are allowed by said Supreme Court shall become a part of the record of the cause. Sec. 192. No particular form of exception shall be required. The objection shall be stated with so much of the evidence, or other matter, as is necessary to explain it, but no more, and the whole as briefly as possible. Sec. 193. When a cause has been tried by the Court, or by referees, and the decision or report is not made immediately after the closing of the testimony, the decision or report shall be deemed excepted to on motion for a new trial or on appeal, without any special notice that an exception is taken thereto.
ARTICLE 2.
New Trials.
Sec. 194. A new trial is a re-examination of an issue of fact in the same Court after a trial and decision by a jury, Court, or referees. Sec. 195. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: First-Irregularity in the proceeding of the Court, jury, or adverse party, or any order of the Court, or abuse of discretion by which either party was prevented from having a fair trial. Second-Misconduct of the jury. Third-Accident, or surprise, which ordinary prudence could not have guarded against. Fourth-Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial. Fifth-Excessive damages appearing to have been given under the influence of passion or prejudice. Sixth-Insufficiency of the evidence to justify the verdict or other decision; or that it is against law. Seventh-Error in law occurring at the trial and excepted to by the party making the application. Sec. 196. When the application is made for a cause mentioned in the first, second, third and fourth subdivisions of the last section, it shall be made upon affidavit; for any other cause it shall be made upon a statement prepared, as provided in the next section. Sec. 197. The party intending to move for a new trial shall give notice of the same as follows: When the action has been tried by a jury, within five days after the rendition of the verdict, and when the action has been tried by the Court or by a referee within ten days after receiving written notice of the rendering of the decision of the Judge, or of the filing the report of the referee. The notice shall designate generally the grounds upon which the motion will be made. Within five days after giving such notice the said party shall prepare and file with the Clerk the affidavit or statement required by the last section. A copy of the affidavit shall on the same day be served on the adverse party. |
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party. The party preparing the statement shall number the pages and lines thereof, and after having filed the same with the Clerk, and had such filing entered and indorsed, shall serve the same on the adverse party on the same day, who may propose amendments thereto, referring to the page and line of the statement, and shall within five days after the service on him of the statement, file his amendment with the Clerk, and after having such filing entered and indorsed, shall on the same day serve the same with the statement upon the moving party, who shall within five days thereafter give written notice to the adverse party if he declines admitting the amendments, or they shall be deemed accepted. At any time thereafter either party may have the statement settled by the Judge or referee upon two days notice thereof to the other party. If no affidavit or statement be filed within five days after the notice of new trial, the right to move for a new trial shall be deemed waived. When the notice designates as the ground upon which the motion will be made the insufficiency of the evidence, to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. When the notice designates as the ground of the motion, error in law occurring at the trial and excepted to by the moving party, the statement shall specify the particular errors upon which the party will reply. If no such specifications be made, the statement shall be disregarded. The statement shall contain so much of the evidence or reference thereto as may be necessary to explain the particular points thus specified and no more. When the statement is agreed to it shall be accompanied with the certificate either of the parties themselves in fact, or their attorney, that the same has been agreed upon and is correct. When settled by the Judge or referee, it shall be accompanied with his certificate that the same has been allowed by him and is correct. When no amendments have been filed the statement shall be accompanied with the certificate of the Clerk of that fact. On the argument reference may also be made to the pleadings, depositions and documentary evidence on file, testimony taken and written out by a short-hand reporter authorized by the Court to take the same, and the minutes of the Court. If the application be made upon affidavits filed the adverse party may use counter affidavits on the hearing. Any counter affidavits shall be filed with the Clerk and copies served on the moving party, at least two days previous to the hearing. The affidavits and counter affidavits, or the statement thus used, in connection with such pleadings, depositions, documentary evidence on file, testimony taken by a reporter and minutes of the Court as are read or referred to on the hearing, shall constitute, without further statement, the papers to be used on appeal from the order granting or refusing the new trial. To identify the affidavits, it shall be sufficient for the Judge or Clerk to indorse them at the time as having been read or referred to on the hearing. To identify any depositions, documentary evidence on file, testimony taken by a reporter, or minutes of the Court read or referred to on the hearing, it shall be sufficient, that the Judge designate them, as having been read or referred to in his certificate to be for that purpose by him made thereon. The several periods of time limited may be enlarged by the written agreement of the parties, or upon good cause shown by the Court or the Judge before whom the cause was tried. Sec. 198. The application for a new trial shall be made at the earliest period practicable after filing the affidavit or statement, and the Court or Judge granting or refusing a new trial shall state in writing generally the grounds upon which the same is granted or refused. |
Application, when to be made. |
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Judgment, how and when entered.
Argument of case.
Counter claim.
Action for recovery of personal property, etc.
Judgment Book.
Death of party.
Judgment roll.
Lien of judgment. |
CHAPTER 8.-The Manner of Giving and Entering Judgment.
Sec. 199. When trial by jury has been had, judgment shall be entered by the Clerk in conformity to the verdict, within twenty-four hours after the rendition of the verdict, unless the Court order the case to be reserved for argument or further consideration, or grant a stay of proceedings. Sec. 200. When the case is reserved for argument or further consideration, as mentioned in the last Section, it may be brought by either party before the Court for argument. Sec. 201. If a counter claim, established at the trial, exceed the plaintiffs demand, so established, judgment for the defendant shall be given for the excess; or, if it appear that the defendant is entitled to any other affirmative relief, judgment shall be given accordingly. Sec. 202. In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or the value thereof, in case a delivery cannot be had, and damages for the detention, or the value of the use thereof. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same, or the value of the use thereof. In an action on a contract or obligation for the direct payment of money, payable in a specified or agreed kind of money or currency, judgment for the plaintiff, whether the same by default or after verdict, or decision of the Court or referee, may follow the contract or obligation, and be made payable in the kind of money or currency therein specified or thereby agreed. And in an action against any person for the recovery of money received by such person in a fiduciary capacity, or to the use of another, judgment for the plaintiff, whether the same be by default or after verdict, or decision of the Court or referee, may be made payable in the same kind of money or currency so received by such person; and in all cases of damage the judgment shall be for gold coin. Sec. 203. The Clerk shall keep among the records of the Court a book for the entry of judgments, to be called the Judgment Book, in which each judgment shall be entered, and shall specify clearly the relief granted, or other determination of the action. Sec. 204. If a party die after a verdict or decision upon any issue of fact, and before judgment, the Court may nevertheless render judgment thereon. Such judgment shall not be a lien on the real property of the deceased party, but shall be payable in the course of administration on his estate. Sec. 205. Immediately after entering the judgment the Clerk shall attach together and file the following papers, which shall constitute the judgment roll: First-In case the complaint be not answered by any defendant, the summons, with the affidavit or proof of service, and the complaint, with a memorandum indorsed on the complaint that the default of the defendant in not answering was entered, and a copy of the judgment. Second-In all other cases the summons, pleadings and a copy of the judgment, and any orders relating to a change of the parties. Sec. 206. Immediately after filing a judgment roll the Clerk shall make the proper entries of the judgment, under appropriate heads, in the docket kept by him, |
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the docket kept by him, and from the time the judgment is docketed it shall become a lien upon all the real property of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterwards acquire, until the said lien expires. The lien shall continue for two years, unless the judgment be previously satisfied. But the time during which the execution of the judgment is suspended by appeal or action of the Court or defendant, shall not be computed. Sec. 207. The docket mentioned in the last section is a book which the Clerk shall keep in his office with each page divided into columns: Judgment debtors; judgment creditors; judgment; time of entry; where entered in judgment book; appeals; when taken; judgment of Appellate Court; satisfaction of judgment; when entered. If judgment be for the recovery of money or damages, the amount shall be stated in the docket under the head of judgment; if the judgment be for any other relief, a memorandum of the general character of the relief granted shall be stated. The names of the defendants shall be entered in the docket in alphabetical order. Sec. 208. The docket kept by the Clerk shall be open at all times during office hours for the inspection of the public, without charge; and it shall be the duty of the Clerk to arrange the several dockets kept by him in such a manner as to facilitate their inspection. Sec. 209. A transcript of the original docket, certified by the Clerk, may be filed with the Recorder of any other county, and from the time of the filing the judgment shall become a lien upon all the real property of the judgment debtor not exempt from execution in such county, owned by him at the time, or which he may afterwards acquire, until the said lien expires. The lien shall continue for two years, unless the judgment be previously satisfied. But the time during which the execution of the judgment is suspended by appeal, or action of the Court or defendant, shall not be computed. Sec. 210. Satisfaction of a judgment may be entered in the Clerks docket upon an execution returned satisfied, or upon an acknowledgment of satisfaction filed with the Clerk, made in the manner of an acknowledgment of a conveyance of real property, by the judgment creditor, or within one year after the judgment, by the attorney, unless a revocation of his authority be previously filed. Whenever a judgment shall be satisfied in fact, otherwise than upon execution, it shall be the duty of the party or attorney to give such acknowledgment, and upon motion the Court may compel it, or may order the entry of satisfaction to be made without it.
TITLE VII.
Of the Execution of the Judgment in Civil Actions.
CHAPTER 1.-The Execution.
Sec. 211. The party in whose favor judgment is given, may at any time within five years after the entry thereof, issue a writ of execution for its enforcement, as prescribed in this chapter. Sec. 212. The writ of execution shall be issued in the name of the State of Nevada, sealed with the seal of the Court, and subscribed by the Clerk, |
Docket, how kept.
To be open for inspection.
Judgment lien in other counties.
Duration of lien.
Satisfaction of judgment, how entered.
Execution may issue.
Form of writ. |
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Judgment on joint contract. |
by the Clerk, and shall be directed to the Sheriff, and shall intelligibly refer to the judgment, stating the Court, the county where the judgment roll is filed, the name of the parties, the judgment, and if it be for money, the amount thereof, and the amount actually due thereon, and if made payable in a specified kind of money or currency as provided in Section Two Hundred and Two, the execution shall also state the kind of money or currency in which the judgment is payable, and shall require the Sheriff substantially as follows: First-If it be against the property of the judgment debtor it shall require the Sheriff to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of his real property; or if the judgment be a lien upon real property, then out of the real property belonging to him on the day when the judgment was docketed, or if the execution be issued to a county other than the one in which the judgment was recovered, on the day when the transcript of the docket was filed in the office of the Recorder of such county, stating such day, or at any time thereafter. Second-If it be against real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants of real property, or trustees, it shall require the Sheriff to satisfy the judgment with interest out of such property. Third-If it be against the person of the judgment debtor, it shall require the Sheriff to arrest such debtor, and commit him to the jail of the county until he pay the judgment with interest or be discharged according to law. Fourth-If it be issued on a judgment made payable in a specified kind of money or currency as provided in Section Two Hundred and Two, it shall also require the Sheriff to satisfy the same in the kind of money or currency in which said judgment is made payable, and the Sheriff shall refuse payment in any other kind of money or currency; and in case of levy and sale of the property of the judgment debtor, he shall refuse payment from any purchaser at such sale in any other kind of money or currency than that specified in the execution. The Sheriff collecting money or currency in the manner required by this Act, shall pay to the plaintiff or party entitled to recover the same, the same kind of money or currency received by him, and in case of neglect or refusal so to do, he shall be liable on his official bond to the judgment creditor in three times the amount of the money so collected. Fifth-If it be for the delivery of the possession of real or personal property, it shall require the Sheriff to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the Sheriff to satisfy any costs, damages, rents, or profits, recovered by the same judgment out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered, to be specified therein; if a delivery thereof cannot be had, and if sufficient personal property cannot be found, then out of real property, as provided in the first subdivision of this section. Sec. 213. When a writ of execution is issued on a judgment recovered against two or more persons, in an action upon a joint contract, in which action all the defendants were not served with summons, or did not appear, it shall direct the Sheriff to satisfy the judgment out of the joint property of all the defendants, and the individual property only of the defendants who were served, or who appeared in the action. In other respects the writ shall contain the directions specified in subdivisions one and four of the last section. |
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Sec. 214. The execution may be returnable at any time, not less than ten, nor more than sixty days after its receipt by the Sheriff, to the Clerk with whom the judgment roll is filed. Sec. 215. Where a judgment requires the payment of money, or the delivery of real or personal property, the same shall be enforced in those respects by execution. Sec. 216. Where it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, or upon the person or officer who is required thereby, or by law, to obey the same and his obedience thereto enforced. Sec. 217. Notwithstanding the death of a party after the judgment, execution thereon may be issued, in case of the death of the plaintiff, the same as if he were living, upon the application of his executor, or administrator, or successor in interest, to the Court in which the judgment was rendered, and in case of the death of the defendant if the judgment be for the recovery of real or personal property, execution may be issued against such property, in the same manner and with the same effect as if he were still living. Sec. 218. Where the execution is against the property of the judgment debtor, it may be issued to the Sheriff of any county in the State. Where it requires the delivery of real or personal property, it shall be issued to the Sheriff of the county where the property, or some part thereof, is situated. Executions may be issued at the same time to different counties. Sec. 219. All goods, chattels, moneys, and other property, real and personal, of the judgment debtor, or any interest therein of the judgment debtor not exempt by law, and all property and rights of property seized and held under attachment in the action, shall be liable to execution. Shares and interests in any corporation or company, and debts and credits, and other property not capable of manual delivery, may be attached in execution in like manner as upon writs of attachment. Gold dust and bullion shall be returned by the officer as so much money collected, at its current value, without exposing the same to sale. Until a levy, property shall not be affected by the execution. Sec. 220. If the property levied on be claimed by a third person as his property, the Sheriff shall summon from his county six persons qualified as jurors between the parties, to try the validity of the claim. He shall also give notice of the claim and of the time of trial to the plaintiff, who may appear and contest the claim before the jury. The jury and the witnesses shall be sworn by the Sheriff, and if their verdict be in favor of the claimant, the Sheriff may relinquish the levy, unless the judgment creditor give him a sufficient indemnity for proceeding thereon. The fees of the jury, the Sheriff and the witnesses, shall be paid by the claimant, if the verdict be against him; otherwise by the plaintiff. Sec. 221. The following property shall be exempt from execution, except as herein otherwise specially provided: First-Chairs, tables, desks and books to the value of one hundred dollars, belonging to the judgment debtor. Second-Necessary household, table and kitchen furniture belonging to the judgment debtor, including stove, stove-pipe, and stove furniture, wearing apparel, beds, bedding and bedsteads, and provisions and firewood actually provided for individual or family use sufficient for one month. Third-The farming utensils or implements of husbandry of the judgment debtor; also, two oxen or two horses or two mules and their harness, |
When returnable.
Payment of money.
Where it requires performance of other act.
After death of party.
May issue to different counties.
Property liable to execution.
Proceedings where property is claimed by third party.
Property exempt from execution. |
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Satisfaction of. |
two mules and their harness, two cows and one cart or wagon, and food for such oxen, horses, cows or mules for one month; also, all seed grain or vegetables actually provided, reserved or on hand for the purpose of planting or sowing at any time within the ensuing six months, not exceeding in value two hundred dollars. Fourth-The tools and implements of a mechanic or artisan necessary to carry on his trade, the instruments and chests of a surgeon, physician, surveyor and dentist, necessary to the exercise of their profession, with their scientific and professional libraries, and the law libraries of an attorney or counsellor, and the libraries of ministers of the Gospel. Fifth-The cabin or dwelling of a miner, not exceeding in value the sum of five hundred dollars; also, his sluices, pipes, hose, windlass, whim, derrick, cars, pumps, tools, implements and appliances necessary for carrying on any kind of mining operations, not exceeding in value the aggregate sum of five hundred dollars, and two horses, mules or oxen, with their harness, and food for such horses, oxen or mules for one month, when necessary to be used for any whim, windlass, derrick, car, pump, or hoisting apparatus. Sixth-Two oxen, two horses or two mules and their harness, and one cart or wagon, by the use of which a cartman, huckster, pedler, teamster or other labor habitually earns his living; and one horse, with vehicle and harness or other equipments, used by a physician or surgeon or minister of the Gospel in making his professional visits, and also food for such oxen, mules or horses for one month. Seventh-One sewing machine, not exceeding in value one hundred and fifty dollars, in actual use by the debtor or his family. Eighth-All fire engines, hooks and ladders, with the carts, trucks and carriages, hose, buckets, implements and apparatus thereto appertaining, and all furniture and uniforms of any fire company or department now existing or which may be, under the laws of this State, hereafter organized. Ninth-All arms, uniforms and accoutrements required by law to be kept by any person. Tenth-All Court-houses, jails, public offices and buildings, lots, grounds and personal property; the fixtures, furniture, books, papers and appurtenances belonging and pertaining to the Court-house, jail and public offices, belonging to any county of this State; and all cemeteries, public squares, parks and places, public buildings, town halls, public markets, buildings for the use of the fire departments and military organizations, and the lots and ground thereto belonging and appertaining, owned or held by any town or incorporated city, or dedicated by such town or city to health, ornament or public use, or for the use of any fire or military company now existing, or which may be, under the laws of the State, hereafter organized. Eleventh-No article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price, or upon a mortgage thereon. Sec. 222. The Sheriff shall execute the writ against the property of the judgment debtor by levying on a sufficient amount of property, if there be sufficient, collecting or selling the things in action, and selling the other property, and paying to the plaintiff or his attorneys so much of the proceeds as will satisfy the judgment, or depositing the amount with the Clerk of the Court. Any excess in the proceeds over the judgment and the Sheriffs fees shall be returned to the judgment debtor. When there is more property of the judgment debtor than is sufficient to satisfy the judgment and the Sheriffs fees within the view of the Sheriff, he shall levy only on such part of the property as the judgment debtor may indicate; provided, that the judgment debtor may indicate at the time of the levy such part; and, provided, that the property indicated be amply sufficient to satisfy such judgment and fees. |
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time of the levy such part; and, provided, that the property indicated be amply sufficient to satisfy such judgment and fees. Sec. 223. Before the sale of property on execution, notice thereof shall be given as follows: First-In case of perishable property, by posting written notice of the time and place of sale in three public places of the township or city where the sale is to take place, for such a time as may be reasonable, considering the character and condition of the property. Second-In case of other personal property, by posting a similar notice in three public places of the township or city where the sale is to take place not less than five nor more than ten days. Third-In case of real property, by posting a similar notice, particularly describing the property, for twenty days, in three public places of the township or city where the property is situated, and also where the property is to be sold. Sec. 224. An officer selling without the notice prescribed by the last Section, shall forfeit five hundred dollars to the aggrieved party, in addition to his actual damages; and a person willfully taking down or defacing the notice posted, if done before the sale or the satisfaction of the judgment, (if the judgment be satisfied before sale) shall forfeit five hundred dollars to the aggrieved party. Sec. 225. All sales of property under execution shall be made at auction to the highest bidder, and shall be made between the hours of nine in the morning and five in the afternoon. After sufficient property has been sold to satisfy the execution, no more shall be sold. Neither the officer holding the execution, nor his deputy, shall become a purchaser, or be interested in any purchase at such sale. When the sale is of personal property capable of manual delivery it shall be in view of those who attend the sale, and be sold in such parcels as are likely to brings the highest price; and when the sale is of real property, and consisting of several known lots or parcels, they shall be sold separately, or when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion shall be thus sold. All sales of real property shall be made at the Court House of the County in which the property, or some part thereof, is situated. The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, shall be sold. When such property consists of several known lots or parcels, or of articles which can be sold to advantage separately, the Sheriff shall be bound to follow such directions. Sec. 226. If a purchaser refuse to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property to the highest bidder, after again giving the notice hereinbefore provided, and if any loss be occasioned thereby from the purchaser refusing to pay his bid, the officer may recover the amount of such loss with costs for the benefit of the party aggrieved by motion upon previous notice of five days to such purchaser before any Court of competent jurisdiction. Sec. 227. Such Court shall proceed in a summary manner in the hearing and disposition of such motion and give judgment and issue execution therefor forthwith, but the refusing purchaser may claim a jury. And the same proceedings may be had against any subsequent purchaser who shall refuse to pay, and the officer may, in his discretion, thereafter reject the bid of any person so refusing. Sec. 228. The two preceding sections shall not be construed to make the officer liable for any more than the amount bid by the second, or subsequent purchaser, and the amount collected from the purchaser refusing to pay. |
Sale of property.
Penalty for selling without notice.
Sales, how made.
Purchaser refusing to pay property to be resold.
Proceedings to enforce payment of loss of resale.
Amount for which officer is liable. |
κ1869 Statutes of Nevada, Page 234 (CHAPTER 112)κ
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Certificate of sale, etc.
Same.
Sale of real estate, when absolute.
When subject to redemption.
Redemption, how made.
Same. |
ond, or subsequent purchaser, and the amount collected from the purchaser refusing to pay. Sec. 229. When the purchaser of any personal property capable of manual delivery shall pay the purchase money, the officer making the sale shall deliver to the purchaser the property, and if desired shall execute and deliver to him a certificate of the sale and payment. Such certificate shall convey to the purchaser all the right, title and interest which the debtor had in and to such property on the day the execution was levied. Sec. 230. When the purchaser of any personal property not capable of manual delivery shall pay the purchase money, the officer making the sale shall execute and deliver to the purchaser a certificate of sale and payment. Such certificate shall convey to the purchaser all right, title and interest which the debtor had in and to such property on the day the execution was levied. Sec. 231. Upon a sale of real property, the purchaser shall be substituted to and acquire all the right, title, interest and claim of the judgment debtor thereto; and when the estate is less than a leasehold of two years unexpired term, the sale shall be absolute. In all other cases the real property shall be subject to redemption, as provided in this Chapter. The officer shall give to the purchaser a certificate of the sale, containing: First-A particular description of the real property sold. Second-The price bid for each distinct lot or parcel. Third-The whole price paid Fourth-When subject to redemption it shall be so stated; and when the judgment, under which the sale has been made, is made payable in a specified kind of money or currency, the certificate shall also state the kind of money or currency in which such redemption may be made, which shall be the same as that specified in the judgment. A duplicate of such certificate shall be filed by the officer in the office of the County Recorder of the county. Sec. 232. Property sold subject to redemption, as provided in the last section, or any part sold separately, may be redeemed in the manner hereinafter provided by the following persons, or their successors in interest: First-The judgment debtor, or his successor in interest, in the whole or any part of the property. Second-A creditor having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the property was sold. The persons mentioned in the second subdivision of this Section are, in this Chapter, termed redemptioners. Sec. 233. The judgment debtor or a redemptioner may redeem the property from the purchaser within six months after the sale, on paying the purchaser the amount of his purchase, in the kind of money or currency specified in the judgment, if any be specified, with eighteen per cent. thereon in addition, together with the amount of any assessment or taxes which the purchaser may have paid thereon after the purchase, and interest on such amount; and if the purchaser be also a creditor, having a lien prior to that of a redemptioner other than the judgment under which the purchase was made, the amount of such lien, with interest. Sec. 234. If the property be so redeemed by a redemptioner, either the judgment debtor or another redemptioner may, within sixty days after the last redemption, again redeem it from the last redemptioner, on paying the sum paid on such last redemption, with four per cent. thereon in addition, and the amount of any assessments or taxes which the said last redemptioner may have paid thereon after the redemption by him, with interest on such amount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest: Provided, That the judgment under which the property was sold need not be paid as a lien. |
κ1869 Statutes of Nevada, Page 235 (CHAPTER 112)κ
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demption by him, with interest on such amount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest: Provided, That the judgment under which the property was sold need not be paid as a lien. The property may be again, and as often as the debtor or a redemptioner is so disposed, redeemed from any previous redemptioner within sixty days after the last redemption, with four per cent. thereon in addition, and the amount of any assessments or taxes which the last previous redemptioner paid after the redemption by him, with interest thereon, and the amount of any liens other than the judgment under which the property was sold, held by the said last redemptioner previous to his own, with interest. Notice of redemption shall be given to the Sheriff. If no redemption be made within six months after the sale the purchaser or his assignee shall be entitled to a conveyance, or if the property be so redeemed, whenever sixty days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption shall have expired, the last redemptioner or his assignee shall be entitled to the Sheriffs deed. If the debtor redeem at any time before the time for the redemption expires, the effect of the sale shall be terminated and he be restored to his estate. Sec. 235. The payment mentioned in the last two Sections may be made to the purchaser or redemptioner, as the case may be, or for him to the officer who made the sale; and a tender of the money shall be equivalent to payment so far as to effect a redemption of the property, and all such payments or tender shall be made in the kind of money or currency in which the last redemption was made, and in which the lien of such redemption was payable. A person desiring to redeem may demand of the purchaser, or last redemptioner, or his attorney in fact, if he be absent from the county, in which the property is situate, a statement in writing of all his claims and liens against the property to be paid on redemption, specifying each item; and if he fail to furnish said statement within three days, then it shall only be necessary to a redemption to pay or tender the amount of the bid or the last redemption, as the case may be, with the percentage allowed added thereto. Sec. 236. A redemptioner shall produce to the officer or person from whom he seeks to redeem, and serve with his notice to the Sheriff: First-A copy of the docket of the judgment under which he claims the right to redeem, certified by the Clerk of the Court, or of the county where the judgment is docketed; or if he redeem upon a mortgage or other lien, a note of the record thereof certified by the Recorder. Second-A copy of an assignment necessary to establish his claim, verified by the affidavit of himself, or of subscribing witnesses thereto; and: Third-An affidavit by himself, or his agent, showing the amount then actually due on the lien. Sec. 237. Until the expiration of the time allowed for redemption, the Court may restrain the commission of waste on the property, or may appoint a receiver to take charge of the property, or the proceeds thereof, by order granted with or without notice, on the application of the purchaser or the judgment creditor. But it shall not be deemed waste for the person in possession of the property at the time of sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs of building thereon; or to use wood or timber on the property therefor; or for the repair of fences; or for fuel in his family while he occupies the property. |
Same.
Same.
Waste may be restrained. |
κ1869 Statutes of Nevada, Page 236 (CHAPTER 112)κ
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Rents and profits.
When purchaser may recover price paid from judgment creditor.
When judgment debtor may be required to answer. |
timber on the property therefor; or for the repair of fences; or for fuel in his family while he occupies the property. Sec. 238. The purchaser from the time of a sale until a redemption, and a redemptioner from the time of his redemption until another redemption, shall be entitled to receive from the tenant in possession, the rents of the property sold, or the value of the use and occupation thereof; provided, that in case the property shall be redeemed as provided in this chapter, the amount of such rents and profits which may have been received by such purchaser or redemptioner, or which said purchaser or redemptioner may have been entitled to claim or receive, unless such claim shall be released to the person claiming such right of redemption, shall be deducted from the amount which said purchaser or redemptioner would be entitled to receive on such redemption. Sec. 239. If the purchaser of real property sold on execution, or his successor in interest, or a redemptioner be evicted therefrom in consequence of irregularities in the proceedings concerning the sale or of the reversal or discharge of the judgment, he may recover the price paid, with interest, from the judgment creditor. If the purchaser of property at Sheriffs sale, or his successor in interest, fail to recover possession in consequence of irregularity in the proceedings concerning the sale, or because the property sold was not subject to execution and sale, the Court having jurisdiction thereof shall, on petition of such party in interest or his attorney, revive the original judgment for the amount paid by such purchaser at the sale, with interest thereon from the time of payment at the same rate that the original judgment bore, and when so revived, the said judgment shall have the same effect as an original judgment of the said Court of that date, and bearing interest as aforesaid, and any other or after acquired property, rents, issues or profits of the said debtor shall be liable to levy and sale under execution in satisfaction of such debt; provided, that no property of such debtor bona file sold upon the filing of such petition, shall be subject to the lien of such judgment; and, provided further, that notice of the filing of such petition shall be made by filing a notice thereof in the office of the Recorder of the county where such property is situated, and that said judgment shall be revived in the name of the original plaintiff or plaintiffs, for the use of said petitioner, the party in interest.
CHAPTER 2.-Proceedings Supplementary to the Execution.
Sec. 240. When an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, issued to the Sheriff of the county where he resides, or if he do not reside in this State, to the Sheriff of the county where the judgment roll is filed, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return is made, shall be entitled to an order from the Judge of the Court requiring such judgment debtor to appear and answer upon oath concerning his property, before such Judge, or a referee appointed by him, at a time and place specified in the order; but no judgment debtor shall be required to attend before a Judge or referee out of the county in which he resides, when proceedings are taken under the provisions of this chapter |
κ1869 Statutes of Nevada, Page 237 (CHAPTER 112)κ
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Sec. 241. After the issuing of an execution against property, and upon proof by affidavit of a party, or otherwise to the satisfaction of the Court, or of the Judge thereof, that any judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, such Court, or Judge, may by an order require the judgment debtor to appear at a specified time and place before such Judge, or a referee appointed by him, to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment, as are provided upon the return of an execution. Instead of the order requiring the attendance of the judgment debtor, the Judge may, upon affidavit of the judgment creditor, his agent or attorney, if it appear to him that there is danger of the debtor absconding, order the Sheriff to arrest the debtor and bring him before such Judge. Upon being brought before the Judge, he may be ordered to enter into an undertaking, with sufficient surety, that he will attend from time to time before the Judge, or referee, as shall be directed during the pendency of proceedings, and until the final determination thereof, and will not in the mean time dispose of any portion of his property not exempt from execution. In default of entering into such undertaking, he may be committed to prison. Sec. 242. After the issuing of an execution against property, any person indebted to the judgment debtor may pay to the Sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the execution, and the Sheriffs receipt shall be a sufficient discharge for the amount so paid. Sec. 243. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon proof by affidavit or otherwise, to the satisfaction of the Judge that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding fifty dollars, the Judge may, by an order, require such person or corporation, or any officer, or member thereof, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same. Sec. 244. Witnesses may be required to appear and testify before the Judge, or referee, upon any proceeding under this chapter in the same manner as upon the trial of an issue. Sec. 245. The Judge, or referee, may order any property of the judgment debtor not exempt from execution, in the hands of such debtor, or any other person, or due to the judgment debtor, to be applied toward the satisfaction of the judgment; except that the earnings of the debtor, not exceeding fifty dollars, for his personal services at any time within thirty days next proceeding the order, shall not be so applied, when it shall be made to appear by the debtors affidavit, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor. Sec. 246. If it appears that a person or corporation alleged to have property of the judgment debtor, or indebted to him, claims an interest in the property adverse to him, or denies the debt, the Court or Judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corporation for the recovery of such interest or debt; and the Court or Judge may, by order, forbid a transfer or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment. Such order may be modified or vacated by the Judge granting the same, or the Court in which the action is brought at any time, upon such terms as may be just. |
Refusal to apply property to satisfaction of judgment.
Debtor of judgment debtor may pay.
Debtor to appear and answer.
Witnesses.
Adverse claim. |
κ1869 Statutes of Nevada, Page 238 (CHAPTER 112)κ
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Penalty for disobedience of order of referee.
Power of Court to direct sale of property.
Surplus after sale, how disposed of.
Sales when debt is not due.
Nuisance defined, action for. |
order may be modified or vacated by the Judge granting the same, or the Court in which the action is brought at any time, upon such terms as may be just. Sec. 247. If any person, party, or witness, disobey an order of the referee, properly made in the proceedings before him under this chapter, he may be published by the Court or Judge ordering the reference for a contempt.
TITLE VIII.
Actions in Particular Cases.
CHAPTER I.-Actions for the Foreclosure of Mortgages.
Sec. 248. There shall be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage or lien, upon real estate, or personal property, which action shall be in accordance with the provisions of this chapter. In such action judgment shall be rendered for the amount found due the plaintiff, and the Court shall have power, by its decree or judgment, to direct a sale of the encumbered property, (or such part thereof as be necessary) and the application of the proceeds of the sale to the payment of the costs and expenses of the sale, the costs of the suit and the amount due to the plaintiff. If it shall appear from the Sheriffs return that there is a deficiency of such proceeds and a balance still due to the plaintiff, the judgment shall then be docketed for such balance against the defendant or defendants personally liable for the debt, and shall, from the time of such docketing, be a lien upon the real estate of the judgment debtor, and an execution may thereupon be issued by the Clerk of the Court, in like manner and form as upon other judgments, to collect such balance or deficiency from the property of the judgment debtor. Sec. 249. If there be surplus money remaining after payment of the amount due on the mortgage, lien, or incumbrance, with costs, the Court may cause the same to be paid to the person entitled to it, and in the mean time may direct it to be deposited in Court. Sec. 250. If the debt for which the mortgage, lien, or incumbrance is held, be not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale shall cease; and afterwards, as often as more becomes due for principal or interest, the Court may, on motion, order more to be sold. But if the property cannot be sold in portions, without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, there being a rebate of interest where such rebate is proper.
CHAPTER 2.-Actions for Nuisance, Waste and Willful Trespass in Certain Cases, on Real Property.
Sec. 251. Anything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered. |
κ1869 Statutes of Nevada, Page 239 (CHAPTER 112)κ
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enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered. Sec. 252. If a guardian, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages. Sec. 253. Any person who shall cut down, or carry off, any wood or underwood, tree or timber, or girdle or otherwise injure any tree or timber on the land of another person, or on the street or highway in front of any persons house, village or city lot, or cultivated grounds, or on the commons or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, shall be liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action in any Court having jurisdiction. Sec. 254. Nothing in the last section shall authorize the recovery of more than the just value of the timber taken from uncultivated wood land for the repair of a public highway or bridge upon the land, or adjoining it. Sec. 255. If a person recover damages for a forcible or unlawful entry in or upon, or detention of any building or any uncultivated real property, judgment may be entered for three times the amount at which the actual damages are assessed.
CHAPTER 3-Actions to Determine Conflicting Claims to Real Property, and Other Provisions Relating to Actions Concerning Real Estate.
Sec. 256. An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate or interest. Sec. 257. If the defendant in such action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff shall not recover costs. Sec. 258. In an action for the recovery of real property, where the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment shall be according to the fact, and the plaintiff may recover damages for withholding the property. Sec. 259. When damages are claimed for withholding the property recovered, upon which permanent improvements have been made by a defendant or those under whom he claims, holding under color of title adversely to the claims of the plaintiff, in good faith, the value of such improvements shall be allowed as a set-off against such damages. Sec. 260. The Court in which an action is pending for the recovery of real property may, on motion, upon notice by either party, for good cause shown, grant an order allowing such party the right to enter upon the property and make survey and measurement thereof, for the purposes of the action. Sec. 261. The order shall describe the property, a copy thereof shall be served on the owner or occupant, and thereupon such party may enter upon the property with necessary surveyors and assistants and may make such survey and measurements; but if any unnecessary injury be done to the property he shall be liable therefor. |
Judgment for.
Action for waste.
Injuring timber, etc.
Liability for.
Same.
Judgment for forcible and unlawful entry, etc.
Actions by persons in possession of real property. Costs when not to be recovered.
Action, where right has terminated during pendency.
Improvements, value to be allowed.
Court may allow survey to be made.
Order of survey. |
κ1869 Statutes of Nevada, Page 240 (CHAPTER 112)κ
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Mortgage not to be deemed conveyance.
Court may enjoin injury.
Damages for injury.
Action for recovery not prejudiced by alienation.
Action for partition.
Interests of parties to be set forth in complaint.
Lien.
Notice of action.
Summons to parties in interest.
Summons by publication. |
and may make such survey and measurements; but if any unnecessary injury be done to the property he shall be liable therefor. Sec. 262. A mortgage of real property shall not be deemed a conveyance, whatever its term, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. Sec. 263. The Court may by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of real property during the foreclosure of a mortgage thereon; or after a sale on execution, before a conveyance. Sec. 264. When real property shall have been sold on execution, the purchaser thereof, or any person who may have succeeded to his interest, may, after his estate becomes absolute, recover damages for injury to the property by the tenant in possession, after sale and before possession is delivered under the conveyance. Sec. 265. An action for the recovery of real property against a person in possession cannot be prejudiced by an alienation made by such person, either before or after the commencement of the action.
CHAPTER 4.-Actions for the Partition of Real Property.
Sec. 266. When several persons hold and are in possession of real property, as joint tenants or as tenants in common, in which one or more of them have an estate of inheritance or for life, or lives, or for years, an action may be brought by one or more of such persons for a partition thereof, according to the respective rights of the persons interested therein, and for a sale of such property or a part of it, if it appear that a partition cannot be made without great prejudice to the owners. Sec. 267. The interests of all persons in the property, whether such persons be known or unknown, shall be set forth in the complaint specifically and particularly, as far as known to the plaintiff; and if one or more of the parties, or the share or quantity of interest of any of the parties, be unknown to the plaintiff, or be uncertain or contingent, or the ownership of the inheritance depend upon an executory devise, or the remainder be a contingent remainder, so that such parties cannot be named, that fact shall be set forth in the complaint. Sec. 268. No persons who have or claim any liens upon the property, by mortgage, judgment, or otherwise, need be made parties to the action, unless such liens be matters of record. Sec. 269. Immediately after filing the complaint, the plaintiff shall file with the Recorder of the county in which the property is situated, a notice of the pendency of the action, containing the names of the parties so far as known, the object of the action, and a description of the property to be affected thereby. From the time of the filing it shall be deemed notice to all persons. Sec. 270. The summons shall be directed to all the joint tenants, and tenants in common, and all persons having any interest in, or any liens of record by mortgage, judgment, or otherwise, upon the property, or upon any particular portion thereof; and generally to all persons unknown who have or claim any interest in the property. Sec. 271. If a party having a share or interest is unknown, or any one of the known parties reside out of the State, or cannot be found therein, and such fact is made to appear by affidavit, the summons may be served on such absent or unknown party by publication, as in other cases. |
κ1869 Statutes of Nevada, Page 241 (CHAPTER 112)κ
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cases. When publication is made the summons as published shall be accompanied by a brief description of the property which is the subject of the action. Sec. 272. The defendants who have been personally served with the summons, and a certified copy of the complaint, shall set forth in their answers, fully and particularly, the nature and extent of their interest in the property, and if such defendants claim a lien upon the property by mortgage, judgment, or otherwise, they shall state the amount and date of the same, and the amount remaining due thereon, and whether the amount has been secured in any other way or not; and if secured, the extent and nature of the security; or they shall be deemed to have waived their rights to such lien. Sec. 273. The rights of the several parties, plaintiffs as well as defendants, may be put in issue, tried and determined by such action; and when a sale of the premises is necessary, the title shall be ascertained by proof to the satisfaction of the Court, before the judgment of sale shall be made; and where service of the complaint has been made by publication, like proof shall be required of the right of the absent or unknown parties, before such judgment is rendered; except that where there are several unknown persons having an interest in the property their rights may be considered together in the action, and not as between themselves. Sec. 274. The plaintiff shall produce to the Court, on the hearing of the case, the certificate of the Recorder of the county where the property is situated, showing whether there were or not any liens outstanding of record upon the property, or any part thereof, at the time of the commencement of the action. Sec. 275. If it shall appear to the Court, by the certificate of the County Recorder or County Clerk, or by the sworn or verified statement of any person who may have examined or searched the records, that there are outstanding liens or incumbrances of record upon such real property or any part thereof, which existed and were of record at the time of the commencement of said action, and the persons holding such liens are not made parties to the action, the Court shall either order such persons to be made parties to the action, by an amendment or supplemental complaint, or appoint a referee to ascertain whether or not such liens or incumbrances have been paid, or if not paid, what amount remains due thereon, and their order among the liens or incumbrances severally held by the said persons and the parties to said action, and whether the amount remaining due thereon has been secured in any manner, and if secured, the nature and extent of the security. Sec. 276. The plaintiff shall cause a notice to be served a reasonable time previous to the day for appearance before the referee appointed, as provided in the last section, on each person having outstanding liens of record who is not a party to the action, to appear before the referee at a specified time and place to make proof, by his own affidavit or otherwise, of the true amount due or to become due, contingently or absolutely, thereon. In case such person be absent, or his residence be unknown, service may be made by publication or notice to his agents, under the direction of the Court, in such manner as may be proper. The report of the referee thereon shall be made to the Court, and shall be confirmed, modified or set aside and a new reference ordered, as the justice of case may require. |
Answer to set forth.
Rights of parties may be determined.
Certificate as to liens.
Persons holding liens to be made parties.
Notice. |
κ1869 Statutes of Nevada, Page 242 (CHAPTER 112)κ
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Sale of property, when may be ordered.
Partition, how made.
Report of referees.
Judgment, effect of.
Same.
Expenses of referees.
Lien on undivided interest.
Estate for life or years, how set off.
Proceeds of incumbered property, how applied. |
Sec. 277. If it be alleged in the complaint, and be established by evidence, or if it appear by the evidence without such allegation in the complaint, to the satisfaction of the Court, that the property, or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the Court may order a sale thereof. Otherwise, upon the requisite proofs being made, it shall order a partition according to the respective rights of the parties, as ascertained by the Court, and appoint three referees therefor; and shall designate the portion to remain undivided for the owners whose interests remain unknown or are not ascertained. Sec. 278. In making the partition the referee shall divide the property and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties, as determined by the Court, designating the several portions by proper landmarks; and may employ a surveyor, with the necessary assistants, to aid them therein. Sec. 279. The referees shall make a report of their proceedings, specifying therein the manner of executing their trust, describing the property divided and the shares allotted to each party, with a particular description of each share. Sec. 280. The Court may confirm or set aside the report, and if necessary appoint new referees. Upon the report being confirmed, judgment shall be rendered that such partition be effectual forever, which judgment shall be binding and conclusive: First-On all persons named as parties to the action, and their legal representatives, who have at the time any interest in the property divided, or any part thereof, as owners in fee, or as tenants for life or for years, or as entitled to the reversion, remainder, or the inheritance of such property, or of any part thereof, after the termination of a particular estate therein, and who, by any contingency, may be entitled to a beneficial interest in the property, or who have an interest in any undivided share thereof as tenants for years or for life. Second-On all persons interested in the property who may be unknown, to whom notice shall have been given of the action for partition by publication; and Third-On all other persons claiming from such parties or persons, or either of them. Sec. 281. But such judgment and partition shall not affect tenants for years less than ten, to the whole of the property which is the subject of the partition. Sec. 282. The expenses of the referees, including those of a surveyor and his assistant, when employed, shall be ascertained and allowed by the Court, and the amount thereof, together with the fees allowed by law to the referees, shall be apportioned among the different parties to the action. Sec. 283. When a lien is on an undivided interest or estate of any of the parties, such lien, if a partition be made, shall thenceforth be a charge only on the share assigned to such party, but such share shall be first charged with its just proportion of the costs of the partition, in preference to such lien. Sec. 284. When a part of the property only is ordered to be sold, if there be an estate for life or years in an undivided share of the whole property, such estate may be set off in any part of the property not ordered to be sold. Sec. 285. The proceeds of the sale of the incumbered property shall be applied, under the direction of the Court, as follows: First-To pay its just proportion of the general costs of the action. Second-To pay the costs of the reference. |
κ1869 Statutes of Nevada, Page 243 (CHAPTER 112)κ
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To pay the costs of the reference. Third-To satisfy and cancel of record the several liens in their order of priority, by payment of the sums due and to become due; the amount due to be verified by affidavit at the time of payment. Fourth-The residue among the owners of the property sold, according to their respective shares therein. Sec. 286. Whenever any party to an action who holds a lien upon the property, or any part thereof, has other securities for the payment of the amount of such lien, the Court may, in its discretion, order such securities to be exhausted before a distribution of the proceeds of sale, or may order a just deduction to be made from the amount of the lien on the property on account thereof. Sec. 287. The proceeds of sale, and the securities taken by the referees, or any part thereof, shall be distributed by them to the persons entitled thereto, whenever the Court so directs. But in case no direction be given, all such proceeds and securities shall be paid into Court, or deposited therein, or as directed by the Court. Sec. 288. When the proceeds of sales of any shares or parcels belonging to persons who are parties to the action, and who are known, are paid into Court, the action may be continued as between such parties, for the determination of their respective claims thereto, which shall be ascertained and adjudged by the Court. Further testimony may be taken in Court, or by a referee at the discretion of the Court, and the Court may, if necessary, require such parties to present the facts or law in controversy, by pleadings, as in an original action. Sec. 289. All sales of real property, made by referees under this chapter, shall be made by public auction to the highest bidder, upon notice published in the manner required for the sale of real property on execution. The notice shall state terms of sale, and if the property or any part of it is to be sold subject to a prior estate, charge or lien, that shall be stated in the notice. Sec. 290. The Court shall, in the order for sale, direct the terms of credit which may be allowed for the purchase money of any portion of the premises of which it may direct a sale on credit, and for that portion of which the purchase money is required, by the provisions hereinafter contained, to be invested for the benefit of unknown owners, infants, or parties out of the State. Sec. 291. The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money, of such parts of the property as are directed by the Court to be sold on credit, for the shares of any known owner of full age, in the name of such owner, and for the shares of an infant, in the name of the guardian of such infant, and for other shares, in the name of the Clerk of the county and his successors in office. Sec. 292. The person entitled to a tenancy for life or years, whose estate shall have been sold, shall be entitled to receive such sum as may be deemed a reasonable satisfaction for such estate, and which the person so entitled may consent to accept instead thereof, by an instrument in writing, filed with the Clerk of the Court. Upon the filing of such consent, the Clerk shall enter the same in the minutes of the Court. Sec. 293. If such consent be not given, filed and entered, as provided in the last section, at or before a judgment of sale is rendered, the Court shall ascertain and determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be allowed on account of such estate, and shall order the same to be paid to such party, or deposited in Court for him, as the case may require. |
When other securities for payment of lien.
Proceeds, how to be distributed.
Determination of conflicting claims.
Sales, how made.
Same.
Same.
How tenants for life, etc. may receive satisfaction for estates sold.
Same. |
κ1869 Statutes of Nevada, Page 244 (CHAPTER 112)κ
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Same.
Contingent future right or estate, how settled.
Terms and mode of sale. Certain parties not to be interested in sale.
Report of sale.
Order to execute conveyance.
Where party entitled to share purchases.
Conveyance, where recorded and effect.
Proceeds belonging to unknown owners.
Same.
Security by referees on sale. |
paid to such party, or deposited in Court for him, as the case may require. Sec. 294. If the person entitled to such estate for life or years be unknown, the Court shall provide for the protection of their rights in the same manner, as far as may be, as if they were known and had appeared. Sec. 295. In all cases of sales, when it appears that any person has a vested or contingent future right or estate in any of the property sold, the Court shall ascertain and settle the proportional value of such contingent or vested right or estate, and shall direct such proportion of the sale to be invested, secured or paid over, in such manner as to protect the rights and interests of the parties. Sec. 296. In all cases of sales of property, the terms shall be made known at the time; and if the premises consist of distinct farms or lots, they shall be sold separately. Sec. 297. Neither of the referees, nor any person for the benefit of either of them, shall be interested in any purchase; nor shall a guardian of an infant party interested in the purchase of any real property, being the subject of the action, except for the benefit of the infant. All sales contrary to the provisions of this Section shall be void. Sec. 298. After completing a sale of the property, or any part thereof ordered to be sold, the referee shall report the same to the Court, with a description of the different parcels of land sold to each purchaser; the name of the purchaser; the price paid or secured; the terms and conditions of the sale; and the securities, if any taken. The report shall be filed in the office of the Clerk of the county where the property is situated. Sec. 299. If the sale be confirmed by the Court, an order shall be entered directing the referees to execute conveyances and take securities pursuant to such sale; which they are hereby authorized to do. Such order may also give directions to them respecting the disposition of the proceeds of the sale. Sec. 300. When a party entitled to a share of the property, or an incumbrancer entitled to have his lien paid out of the sale, becomes a purchaser, the referees may take his receipt for so much of the proceeds of the sale as belongs to him. Sec. 301. The conveyances shall be recorded in the county where the premises are situated, and shall be a bar against all persons interested in the property in any way, who shall have been named as parties in the action, and against all such parties and persons as were unknown if the summons have been served by publication, and against all persons claiming from them, or either of them. Sec. 302. When there are proceeds of a sale belonging to an unknown owner, or to a person without the State, who has no legal representative within it, the same shall be invested in securities or interest for the benefit of the persons entitled thereto. Sec. 303. When the security of the proceeds of the sale is taken, or when an investment of any such proceeds is made, it shall be done, except as herein otherwise provided, in the name of the Clerk of the county where the papers are filed, and his successors in office, who shall hold the same for the use and benefit of the parties interested; subject to the order of the Court. Sec. 304. When security is taken by the referees on a sale, and the parties interested in such security, by an instrument in writing under their hands delivered to the referees, agree upon the shares and proportions to which they are respectively entitled; |
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proportions to which they are respectively entitled; or when shares and proportions have been previously adjudged by the Court, such securities shall be taken in the names of, and payable to, the parties respectively entitled thereto; and shall be delivered to such parties upon their receipt therefor. Such agreement and receipt shall be returned and filed with the Clerk. Sec. 305. The Clerk in whose name a security is taken, or by whom an investment is made, and his successors in office, shall receive the interest and principal as it becomes due, and apply and invest the same as the Court may direct, and shall file in his office all securities taken, and keep an account in a book provided and kept for that purpose in the Clerks office, free for inspection by all persons, of investments and moneys received by him thereon, and the disposition thereof. Sec. 306. When it appears that partition cannot be made equal between the parties according to their respective rights, without prejudice to the rights and interest of some of them, and a partition be ordered by judgment, the Court my adjudge compensation to be made by one party to another, on account of the inequality of partition. But such compensation shall not be required to be made to others by owners unknown, nor by infants, unless in case of an infant it appear that he has personal property sufficient for that purpose, and that his interest will be promoted thereby. Sec. 307. When the share of an infant is sold the proceeds of the sale may be paid by the referee making the sale, to his general guardian or the special guardian appointed for him in the action, upon giving the security required by law or directed by order of the Court. Sec. 308. The guardian who may be entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting his own affairs, whose interest in real property shall have been sold, may receive, in behalf of such person, his share of the proceeds of such real property, from the referee, on executing, with sufficient sureties, an undertaking approved by a Judge of the Court, that he will faithfully discharge the trust reposed in him, and will render a true and just account to the person entitled, or to his legal representative. Sec. 309. The general guardian of an infant, and the guardian entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting his own affairs, who is interested in real estate held in joint tenancy, or in common, or in any other manner so as to authorize his being made a party to an action for the partition thereof, may consent to a partition without action, and agree upon the share to be set off to such infant or other person entitled, and may execute a release in his behalf to the owners of the shares of the parts to which they may be respectively entitled, upon an order of the Court. Sec. 310. The costs of partition, including fees of referees and other disbursements, shall be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the judgment. In that case they shall be a lien on the several shares, and the judgment may be enforced by execution against such shares, and against other property held by the respective parties. When, however, a litigation arises between some of the parties only, the Court may require the expense of such litigation to be paid by the parties thereto, or any of them. Sec. 311. The Court, with the consent of the parties, may appoint a single referee, instead of three referees, in the proceedings under the provisions of this chapter, and the single referee, when thus appointed, shall have all the powers and perform all the duties required of the three referees. |
Same.
Compensation, when.
Proceeds of sale infants share paid to guardian.
Insane person.
Petition may be consented to by guardian.
Costs of partition. |
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Single referee may be appointed.
Mining claim, partition of.
Order of Court.
Referees to go on claim.
Parties may unite.
Parties to select place of location.
Same.
Parties remaining. |
a single referee, instead of three referees, in the proceedings under the provisions of this chapter, and the single referee, when thus appointed, shall have all the powers and perform all the duties required of the three referees. Sec. 312. When the action is for partition of a mining claim among the tenants in common, joint tenants, coparceners or partners thereof, the Court, upon good cause shown by any party or parties in interest, may, instead of ordering partition to be made in manner as hereinbefore provided, or a sale of the premises for cash, direct the referees to divide the claim in the manner hereinafter specified. Sec. 313. The Court shall in its order, or by a subsequent order made upon motion, fix the time for division of the claim by the referees, which shall not be less than twenty nor more than forty days from the day of making the order, except by consent of all the parties in interest who have appeared in the action. Sec. 314. On the day designated in the order, the referees shall go upon the claim to be divided and proceed to make division of the same as hereinafter provided, and shall continue from day to day until the whole business is completed. Sec. 315. Two or more of the tenants in common, joint tenants, copartners or parceners may unite together for the purposes of such division, of which they shall give the referees written notice before they commence the business of division; and all who do not unite as aforesaid, or give notice of separate action, shall, for the purposes of division, be deemed and held to have united. The referees in their action shall recognize those named in the order of the Court, or their agents and attorneys in fact, duly appointed by instrument in writing under seal, and acknowledged as in cases of conveyances of real estate, the guardian of an infant and the guardian entitled to the custody and management of the estate of an insane person or other person adjudged incapable of conducting his own affairs, and as to the interest of each, shall be controlled entirely by the order of the Court. Sec. 316. At the time and place of division one of the referees to be selected by them shall in the manner of public auction offer to the party or parties who will take the least part or portion of said mining claim in proportion to the interest he or they may have therein, the privilege of first selecting the place at which his portion shall be located, and upon closing the bids the referees shall proceed to measure and mark off, by distinct metes and bounds, to the lowest bidder, his or their portion of said mining claim, at the place designated by them or him, according to the terms of his or their bid. Sec. 317. When the referees have marked off and set apart the interest of the lowest bidder, as provided in the last section, they shall offer to the remaining parties the privilege of selection as in said section mentioned and described, and shall, upon closing the bids, proceed in the same manner to locate and mark off the portion of the lowest bidder, and shall thereafter continue in the same manner to receive bids and mark off the interest of the bidder or bidders until there shall remain but one party in interest, or parties united, forming one interest, as provided in Section three hundred and fifteen. Sec. 318. The party or parties remaining as provided in the last section, shall become the owner or owners, as the case may be, of the entire claim not marked off and set apart to other parties as hereinbefore provided, in proportion to their respective interests in the claim. |
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Sec. 319. The referees shall return, with their report in this Act required to be made by them, the evidences of authority presented to them by persons other than the parties mentioned in the order of the Court by which they claim the right to bid, or otherwise act, during the proceedings hereinbefore mentioned.
CHAPTER 5-Actions for the Usurpation of an Office or Franchise.
Sec. 320. An action may be brought by the Attorney-General in the name of the people of this State upon his own information, or on the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this State. And it shall be the duty of the Attorney-General to bring the action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed so to do by the Governor. Sec. 321. Whenever such action is brought, the Attorney-General, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightly entitled to the office, with a statement of his right thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a Judge of the Supreme Court, or a District Judge, for the arrest of such defendant, and holding him to bail; and thereupon he may be arrested and held to bail, in the same manner and with the same effect, and subject to the same rights and liabilities as in other civil actions where the defendant is subject to arrest. Sec. 322. In every such case judgment may be rendered upon the right of the defendant and also upon the right of the party so alleged to be entitled; or only upon the right of the defendant, as justice shall require. Sec. 323. If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office. Sec. 324. If judgment be rendered upon the right of the person so alleged to be entitled, in favor of such person, he may recover by action the damages which he shall have sustained by reason of the usurpation of the office by the defendant. Sec. 325. When several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise. Sec. 326. When a defendant, against whom such action has been brought, is adjudged guilty of usurping, or intruding into, or unlawfully holding any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from the office, franchise or privilege, and that he pay the costs of the action. The Court may, also, in its discretion, impose upon the defendant a fine not exceeding five thousand dollars, which fine, when collected, shall be paid into the Treasury of the State. |
Evidence to be returned.
Actions for usurpation of office, etc.
Complaint, what to state.
Defendant may be arrested.
Judgment, how rendered.
When person may take office.
Damages recoverable.
Rights of several may be tried in one action.
Judgment, when defendant has intruded into office. |
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Judgment, how reviewed. Order, how may be vacated.
Parties designated.
In what cases an appeal may be taken.
How made.
Statement on appeal.
Waiver of. |
TITLE IX.
Of Appeals in Civil Actions.
CHAPTER 1.-Appeals in General.
Section 327. A judgment or order in a civil action, except when expressly made final by this Act, may be reviewed as prescribed by this title, and not otherwise. Sec. 328. An order made out of Court, without notice to the adverse party, may be vacated or modified without notice, by the Judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made. Sec. 329. Any party aggrieved may appeal in the cases prescribed in this title. The party appealing shall be known as the appellant, and the adverse party as the respondent. Sec. 330. An appeal may be taken: First-from a final judgment in an action or special proceeding commenced in the Court in which the judgment is rendered, within one year after the rendition of judgment. Second-From a judgment rendered on an appeal from an inferior Court, within ninety days after the rendition of the judgment. Third-From an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction, and from any special order made after the final judgment, within sixty days after the order is made and entered in the minutes of the Court. Fourth-From an interlocutory judgment or order in cases of partition which determines the right of the several parties, and directs partition, sale or division to be made, within sixty days after the rendition of the same. Sec. 331. The appeal shall be made by filing with the Clerk of the Court with whom the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice upon the adverse party or his attorney. Sec. 332. When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall, within twenty days after the entry of such judgment or order, prepare such statement, which shall state specifically the particular errors or grounds upon which he intends to rely on the appeal, and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified and no more, and shall file the same with the Clerk, and serve a copy thereof upon the adverse party. The respondent may, within five days thereafter, prepare and file amendments to the statement, and shall serve a copy thereof on the appellant; the statement and amendments shall be presented to the Judge or referee who tried or heard the case, upon notice of two days to the respondent, and a true statement shall thereupon be settled by such Judge or referee. If no amendments are filed, the statement may be presented to the Judge or referee for settlement without any notice to the respondent. Sec. 333. If the party shall omit to make a statement within the time limited, he shall be deemed to have waived his right thereto; and when a statement is made and the parties shall omit within the several times above limited, the one party to propose amendments, the other to notify an appearance before the Judge or referee, they shall respectively be deemed, |
κ1869 Statutes of Nevada, Page 249 (CHAPTER 112)κ
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ively be deemed, the former to have agreed to the statement as prepared, and the latter to have agreed to the amendments as proposed; but the Judge or referee who tried or heard the case shall notwithstanding such omission or implied agreement, have power to correct any misstatement of his rulings which such statement may contain. Sec. 334. The several periods of time above limited may be enlarged, upon good cause shown, by the Judge before whom the cause was tried. Sec. 335. The statement, when settled by the Judge or referee, shall be signed by him, with his certificate that the same has been allowed and is correct. When the statement is agreed upon by the parties, they or their attorneys shall sign the same, with their certificate that it has been agreed upon by them and is correct. In either case, when settled or agreed upon, it shall be filed with the Clerk. Sec. 336. A copy of the statement shall be annexed to a copy of the judgment roll, if the appeal be from a judgment; if the appeal be from an order, to a copy of such order. Sec. 337. The provisions of the last five preceding sections shall not apply to appeals taken from an order made upon affidavit filed, but such affidavit shall be annexed to the order, in the place of the statement mentioned in those sections. Sec. 338. Upon an appeal from a judgment the Court may review any intermediate order involving the merits and necessarily affecting the judgment. Sec. 339. Upon an appeal from a judgment or order, the Appellate Court may reverse, affirm or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties; and may set aside, or confirm, or modify, any or all of the proceedings subsequent to or dependent upon such judgment or order, and may, if necessary or proper, order a new trial. When the judgment or order is reversed or modified, the Appellate Court may make complete restitution of all property and rights lost by the erroneous judgment or order, and when it appears to the Appellate Court that the appeal was made for delay, it may add to the costs such damages as may be just. Sec. 340. On an appeal from a final judgment, the appellant shall furnish the Court with a transcript of the notice of appeal, and the statement, if there be one, certified by the respective attorneys of the parties to the appeal, or by the Clerk of the Court. On an appeal from a judgment rendered on an appeal or from an order, the appellant shall furnish the Court with a copy of the notice of appeal, the judgment or order appealed from, and a copy of the papers used on the hearing in the Court below, such copies to be certified in like manner to be correct. If any written opinion be placed on file in rendering judgment or making the order in the Court below, a copy shall be furnished, certified in like manner. If the appellant fail to furnish the requisite papers, the appeal may be dismissed. Sec. 341. To render an appeal effectual for any purpose, in any case, a written undertaking shall be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal; not exceeding three hundred dollars, or that sum shall be deposited with the Clerk with whom [the] judgment or order was entered, to abide the event of the appeal. Such undertaking shall be filed, or such deposit made with the Clerk, within five days after the notice of appeal is filed. |
Time enlarged.
How certified.
Copy to be annexed.
Certain sections not to apply to appeals from order. Review of appeal from judgment. Same.
Duty of appellant.
Undertaking. |
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Stay of execution of judgment, etc.
Assignment or delivery of documents, etc.
Execution of conveyance, etc.
Sale or delivery of property, etc.
Appeal perfected to stay proceedings below. |
such deposit made with the Clerk, within five days after the notice of appeal is filed. Sec. 342. If the appeal be from a judgment or order directing the payment of money, it shall not stay the execution of the judgment or order unless a written undertaking be executed on the part of the appellant by two or more sureties, stating their places of residence and occupation, to the effect that they are bound in double the amount named in the judgment or order; that if the judgment or order appealed from, or any part thereof be affirmed, the appellant shall pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment [or] order shall be affirmed, if affirmed only in part, and all damages and costs which shall be awarded against the appellant upon the appeal. When the judgment or order appealed from is made payable in a specified kind of money or currency, the undertaking required by this Section shall be drawn and made payable in the same kind of money or currency specified in such judgment or order. Sec. 343. If the judgment or order appealed from direct the assignment or delivery of documents, or personal property, the execution of the judgment or order shall not be stayed by appeal, unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the Court may appoint; or unless an undertaking be entered into on the part of the appellant, with at least two sureties, and in such amount as the Court or the Judge thereof may direct, to the effect that the appellant will obey the order of the Appellate Court upon the appeal. Sec. 344. If the judgment or order appealed from direct the execution of a conveyance or other instrument, the execution of the judgment or order shall not be stayed by the appeal until the instrument is executed and deposited with the Clerk with whom the judgment or order is entered, to abide the judgment of the Appellate Court. Sec. 345. If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant he will not commit, nor suffer to be committed, any waste thereon, and that if the judgment be affirmed he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the Judge of the Court by which the judgment was rendered or order made, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment for a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency. In all other cases not hereinbefore mentioned the amount of the undertaking to stay the execution of the judgment or order shall be fixed by the Court or the Judge thereof. Sec. 346. Whenever an appeal is perfected, as provided by the preceding sections in this chapter, it shall stay all further proceedings in the Court below, upon the judgment or order appealed from, or upon matter embraced therein; but the Court below may proceed upon any other matter included in the action and not affected by the judgment or order appealed from. And the Court below may, in its discretion, dispense with or limit the security required by said sections, when the appellant is an executor, administrator, trustee or other person acting in anothers right. |
κ1869 Statutes of Nevada, Page 251 (CHAPTER 112)κ
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when the appellant is an executor, administrator, trustee or other person acting in anothers right. Sec. 347. The undertaking prescribed by Sections three hundred and forty and three hundred and forty-one, three hundred and forty-two and three hundred and forty-three, may be in one instrument or several at the option of the appellant. Sec. 348. An undertaking upon an appeal shall be of no effect unless it be accompanied by the affidavit of the sureties that they are each worth the amount specified therein over and above all their just debts and liabilities, exclusive of the property exempt from execution, except where the judgment exceeds three thousand dollars and the undertaking on appeal is executed by more than two sureties, they may state on their affidavit that they are severally worth amounts less than that expressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties. The adverse party may, however, except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the Judge of the Court below, or Clerk, within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal shall be regarded as if no such undertaking had been given; and in all cases where an undertaking is required on appeal by the provisions of this chapter, a deposit in the Court below of the amount of the judgment appealed from, and three hundred dollars in addition, shall be equivalent to filing the undertaking, and in all cases the undertaking or deposit may be waived by the written consent of the respondent. Sec. 349. In cases not provided for in Sections three hundred and forty-one, three hundred and forty-two, three hundred and forty-three and three hundred and forty-four, the perfecting of an appeal by giving the undertaking, and the justification of the sureties thereon, if required, or making the deposit mentioned in Section three hundred and forty, shall stay proceedings in the Court below upon the judgment or order appealed from, except that where it directs the sale of perishable property the Court below may order the property to be sold, and the proceeds thereof to be deposited to abide the judgment of the Appellate Court. Sec. 350. Appeals may be brought to a hearing by either party upon a notice of three days to the opposite party. Before the argument each party shall furnish to the other and to each of the Justices a copy of his points and authorities, or either party may file one copy thereof with the Clerk, who shall cause the requisite copies to be made. Sec. 351. When judgment is rendered upon the appeal, it shall be certified by the Clerk of the Supreme Court to the Clerk with whom the judgment roll is filed or the order appealed from is entered. In cases of appeal from the judgment, the Clerk with whom the roll is filed shall attach the certificate to the judgment roll and enter a minute of the judgment of the Supreme Court on the docket against the original entry. In cases of appeal from an order, the Clerk shall enter at length in the records of the Court the certificate received, and minute against the entry of the order appealed from a reference to the certificate, with a brief statement that the order has been affirmed, reversed or modified, as the case may be, by the Supreme Court, on appeal. Sec. 352. Whenever costs are awarded to a party by an Appellate Court, such party may have an execution for the same on filing a remittitur with the Clerk of the Court below, |
Undertaking may be one or several.
Affidavit of sureties, etc.
Appeal perfected to stay proceedings, when.
Hearing, etc.
Judgment on appeal.
Execution for costs. |
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How those not served may be bound by judgment.
Summons to show cause.
Same.
Answer and defense.
Where defendant denies liability.
Issues formed. how tried.
Judgment by confession, how entered. |
mittitur with the Clerk of the Court below, and it shall be the duty of such Clerk, whenever the remittitur is filed, to issue the execution upon application therefor, and whenever costs are awarded to a party by an order of any Court, such party may have an execution therefor in like manner as upon a judgment.
TITLE X.
Miscellaneous Proceedings.
CHAPTER 1.-Proceedings against Joint Debtors.
Sec. 353. When a judgment is recovered against one or more of several persons jointly indebted upon an obligation, by proceeding as provided in Section thirty-two, those who were not originally served with the summons and did not appear to the action, may be summoned to show cause why they should not be bound by the judgment in the same manner as though they had been originally served with the summons. Sec. 354. The summons, as provided in the last section, shall describe the judgment and require the person summoned to show cause why he should not be bound by it, and shall be served in the same manner and returnable within the same time as the original summons. It shall not be necessary to file a new complaint. Sec. 355. The summons shall be accompanied by an affidavit of the plaintiff, his agent, representative or attorney, that the judgment or some part thereof remains unsatisfied, and shall specify the amount due thereon. Sec. 356. Upon such summons, the defendant may answer within the time specified therein, denying the judgment or setting up any defense which may have arisen subsequently, or he may deny his liability on the obligation upon which the judgment was recovered, except a discharge from such liability by the statute of limitation. Sec. 357. If the defendant, in his answer, deny the judgment, or set up any defense which may have arisen subsequently, the summons, with the affidavit annexed, and the answer, shall constitute the written allegations in the case. If he deny his liability on the obligation upon which the judgment was recovered, a copy of the original complaint and judgment, the summons, with the affidavit annexed, and the answer, shall constitute such written allegations. Sec. 358. The issues formed may be tried [as] in other cases, but when the defendant denies, in his answer, any liability on the obligation upon which the judgment was rendered, if a verdict be found against him, it shall be for the amount remaining unsatisfied on such original judgment, with interest thereon.
CHAPTER 2.-Confession of Judgment Without Action.
Sec. 359. A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. |
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Sec. 360. A statement in writing shall be made, signed by the defendant and verified by his oath, to the following effect: First-It shall authorize the entry of judgment for a specified sum. Second-If it be money due, or to become due, it shall state concisely the facts out of which it arose, and shall show that the sum confessed therefor is justly due, or to become due. Third-If it be for the purpose of securing the plaintiff against a contingent liability, it shall state concisely the facts constituting the liability, and shall show that the sum confessed therefor does not exceed the same. Sec. 361. The statement shall be filed with the Clerk of the Court in which the judgment is to be entered, who shall indorse upon it, and enter in the judgment book a judgment of such Court for the amount confessed, with ten dollars costs. The judgment and affidavit, with the judgment indorsed, shall thereupon become the judgment roll.
CHAPTER 3.-Submitting a Controversy Without Action.
Sec. 362. Parties to a question in difference, which might be the subject of a civil action, may without action agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any Court which should have jurisdiction if an action has been brought. But it must appear, by affidavit, that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The Court shall thereupon hear and determined the case, and render judgment thereon, as if an action were pending. Sec. 363. Judgment shall be entered in the judgment book as in other cases, but without costs for any proceeding prior to the trial. The case, the submission, and a copy of the judgment shall constitute the judgment roll. Sec. 364. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be in the same manner subject to appeal.
CHAPTER 4.-Of Arbitrations.
Sec. 365. Persons capable of contracting may submit to arbitration any controversy which might be the subject of a civil action between them, except a question of title to real property in fee or for life. This qualification shall not include questions relating merely to the partition or boundaries of real property. Sec. 366. The submission to arbitration shall be in writing, and may be to one or more persons. Sec. 367. It may be stipulated in the submission that it be entered as an order of the Court, for which purpose it shall be filed with the Clerk of the Court where the parties, or one of them, reside. The Clerk shall thereupon enter in his register of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of the submission, when filed, and the time limited by the submission, if any, within which the award shall be made. When so entered, the submission shall not be revoked without the consent of both parties. The arbitrators may be compelled by the Court to make an award, and the award may be enforced by the Court in the same manner as a judgment. If the submission be not made an order of the Court, it may be revoked at any time before the award is made. |
Statement in writing to be made.
Filed with Clerk of Court.
Submission of controversy without action.
Judgment, how entered.
How enforced.
Arbitration submission of.
How made.
Same, revocation of. |
κ1869 Statutes of Nevada, Page 254 (CHAPTER 112)κ
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Powers of arbitrators.
Proceedings of.
Award, how made, effect of.
On what grounds vacated.
On what grounds modified.
Appeal.
Submission revoked, amount recoverable.
Offer to compromise not to prejudice. |
Sec. 368. Arbitrators shall have power to appoint a time and place for hearing, to adjourn from time to time, to administer oaths to witnesses, to hear the allegations and evidence of the parties, and to make an award thereon. Sec. 369. All the arbitrators shall meet and act together during the investigation, but when met, a majority may determine any question. Before acting they shall be sworn before an officer authorized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties in relation to the matters in controversy, and to make a just award according to their understanding. Sec. 370. The award shall be in writing, signed by the arbitrators, or a majority of them, and delivered to the parties. When the submission is made an order of the Court, the award shall be filed with the Clerk and a note thereof made in his register. After the expiration of five days from the filing of the award, upon the application of a party, and on filing an affidavit showing that notice of filing the award has been served on the adverse party or his attorney at least four days prior to such application, and that no order staying the entry of judgment has been served, the award shall be entered by the Clerk in the judgement book, and shall thereupon have the effect of a judgment. Sec. 371. The Court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing, before the same arbitrators, or not, in its discretion: First-That it was procured by corruption or fraud. Second-That the arbitrators were guilty of misconduct or committed gross error in refusing, on cause shown, to postpone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced. Third-That the arbitrators exceeded their powers in making their award; or that they refused, or improperly omitted to consider a part of the matters submitted to them; or that the award is indefinite, or cannot be performed. Sec. 372. The Court may, on motion, modify or correct the award where it appears: First-That there was a miscalculation in figures upon which it was made, or that there is a mistake in the description of some person or property therein. Second-When a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matter submitted. Third-When the award, though imperfect in from, could have been amended if it had been a verdict, or the imperfection disregarded. Sec. 373. The decision upon the motion shall be subject to appeal in the same manner as an order which is subject to appeal in a civil action; but the judgment entered before a motion is made shall not be subject to appeal. Sec. 374. If a submission to arbitration be revoked, and action be brought therefor, the amount to be recovered shall only be the costs and damages sustained in preparing for and attending the arbitration.
CHAPTER 5.-Offer of the Defendant to Compromise the Whole or a Part of an Action.
Sec. 375. The defendant may at any time before the trial or judgment serve upon the plaintiff an offer to allow judgment to be taken against him for the sum, or property, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof within five days, he may file the summons, complaint, and offer, with an affidavit of notice of acceptance, and the Clerk shall thereupon enter judgment accordingly. |
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he may file the summons, complaint, and offer, with an affidavit of notice of acceptance, and the Clerk shall thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence; and if the plaintiff fail to obtain a more favorable judgment he shall not recover costs, but shall pay the defendants costs from the time of the offer.
TITLE XI.
Of Witnesses, and of the Manner of Obtaining Evidence.
CHAPTER 1.-Of Witnesses.
Sec. 376. All persons, without exception, otherwise than as specified in this chapter, may be witnesses in any action or proceeding. Facts which, by the common law, would cause the exclusion of witnesses may still be shown for the purpose of affecting their credibility. Sec. 377. No person shall be disqualified as a witness in any action or proceeding on account of his opinions on matters of religious belief, or by reason of his interest in the event of the action or proceeding as a party thereto or otherwise; but the party or parties thereto, and the person in whose behalf such action or proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and be compellable to give evidence, either viva voce or by deposition, or upon a commission, in the same manner and subject to the same rules of examination as other witnesses, on behalf of himself, or either or any of the parties to the action or proceeding. Sec. 378. If a party refuse to attend and testify at the trial, or to give his deposition before trial, or upon a commission when required, his complaint, answer, or reply may be stricken out and judgment be taken against him; and he may be also, in the discretion of the Court, proceeded against as in other cases for a contempt. Sec. 379. No person shall be allowed to testify under the provisions of Section Three Hundred and Seventy-seven, when the other party to the transaction, or opposite party in the action, or the party for whose immediate benefit the action or proceeding is prosecuted or defended is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased person, and nothing contained in said section shall affect the laws in relation to attestation of any instrument required to be attested. Sec. 380. Persons against whom judgment has been rendered upon a conviction for felony, unless pardoned by the Governor, or such judgment has been reversed on appeal, shall not be witnesses. Sec. 381. A husband shall not be a witness for or against his wife, nor a wife a witness for or against her husband; nor can either, during the marriage, or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage. But this exception shall not apply to an action or proceeding by one against the other. Sec. 382. An attorney or counselor shall not, without the consent of his client, be examined as a witness as to any communication made by the client to him, or his advice given thereon, in the course of professional employment. |
Witnesses, who may be.
Who not disqualified.
Refusal to testify.
Who shall not testify, etc.
Who shall not be witnesses.
Same.
Same. |
κ1869 Statutes of Nevada, Page 256 (CHAPTER 112)κ
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Same.
Same.
Same.
Judge or juror may be witnesses
Interpreters
Attendance of witnesses, what subpoena may require.
Proviso.
Subpoena, how issued. |
Sec. 383. A clergyman or priest shall not, without the consent of the person making the confession, be examined as a witness as to any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs. Sec. 384. A licensed physician or surgeon shall not, without the consent of his patient, be examined as a witness as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient; provided, however, in any suit or prosecution against a physician or surgeon for malpractice, if the patient or party suing or prosecuting shall require or give such consent, and any such witness shall give testimony, then such physician or surgeon, defendant, may call any other physicians or surgeons as witnesses on behalf of defendant, without the consent of such patient or party suing or prosecuting. Sec. 385. A public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interest would suffer by the disclosure. Sec. 386. The Judge himself, or any juror, may be called as a witness by either party, but in such case it shall be in the discretion of the Court or Judge to order the trial to be postponed, or suspended, and to take place before another Judge or jury. Sec. 387. When a witness does not understand and speak the English language, an interpreter shall be sworn to interpret for him. Any person resident of the county may be summoned by any Judge or Court to appear before such Judge or Court to act as interpreter in any action or proceeding. The summons shall be served and returned in like manner as a subpoena. Any person so summoned shall, for a failure to attend at the time and place named in the summons, be deemed guilty of a contempt and punished accordingly.
CHAPTER 2.-Manner of Compelling the Attendance of Witnesses, and their Rights and Duties.
Sec. 388. A subpoena may require not only the attendance of the person to whom it is directed, at a particular time and place to testify as a witness, but may also require him to bring with him any books, documents or other things under his control, to be used as evidence. No person shall be required to attend as a witness before any Court, Judge, Justice, referee or other officer out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the county of trial; provided, that such witness shall have the right to demand payment in advance of his fees for one days attendance, and his mileage to and from the place specified in the subpoena. Sec. 389. The subpoena shall be issued as follows: First-To require attendance before a Court, it shall be issued in the name and under the seal of the Court before which the attendance is required. Second-To require attendance out of Court, before a Judge, referee, Justice, or other officer authorized to administer oaths or take testimony in any matter under the laws of this State, it shall be issued by the Judge, referee, Justice, or other officer before whom the attendance is required. Third-To require attendance before a Commissioner appointed to take testimony by a Court of a foreign country, or of the United States, or of any other State, or of a Territory of the United States, |
κ1869 Statutes of Nevada, Page 257 (CHAPTER 112)κ
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States, or any District Judge or Justice of the Peace of this State, it may be issued by a Judge or Justice of the Peace in places within their respective jurisdictions, with like power to enforce attendance and to punish contempt of such subpoena as such Judge or Justice could exercise if the subpoena directed the attendance of the witness before his own Court, in a matter pending therein. Sec. 390. The service of a subpoena shall be made by showing the original, and delivering a copy or a ticket containing its substance to the witness personally, giving or offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to and from the place designated, and one days attendance there. Such service may be made by any person. Sec. 391. If a witness be concealed in a building or vessel so as to prevent the service of a subpoena upon him, any Court or Judge, or any officer issuing the subpoena, may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the Sheriff of the county serve the subpoena, and the Sheriff shall serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed. Sec. 392. A person present in Court, or before a judicial officer, may be required to testify in the same manner as if he were in attendance upon a subpoena issued by such Court or officer. Sec. 393. It shall be the duty of a witness, duly served with a subpoena, to attend at the time appointed, with any papers under his control required by the subpoena, to answer all pertinent and legal questions, and, unless sooner discharged, to remain till the testimony is closed. Sec. 394. A witness shall answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for a felony, nor need give an answer which will have direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact at issue would be presumed. But a witness shall answer as to the fact to his previous conviction for felony. Sec. 395. Disobedience to a subpoena, or a refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the Court or officer issuing the subpoena or requiring the witness to be sworn; and if the witness be a party his complaint may be dismissed or his answer stricken out. Sec. 396. A witness disobeying a subpoena shall also forfeit to the party aggrieved the sum of one hundred dollars and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action. Sec. 397. In case of failure of a witness to attend, the Court or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the Sheriff of the county to arrest the witness and bring him before the Court or officer where his attendance was required. Sec. 398. If the witness be a prisoner, confined in a jail or prison within this State for any other cause than a sentence for felony, an order for his examination in the prison upon deposition, or for his temporary removal and production before a Court or officer for the purpose of being orally examined, may be made as follows: First-By the Court itself in which the action or special proceeding is pending. |
How served
Same.
Persons present required to testify, etc.
Duty of witness.
Questions witness must answer.
Disobedience to subpoena.
Same.
Failure to attend.
Confined in jail, etc. |
κ1869 Statutes of Nevada, Page 258 (CHAPTER 112)κ
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Same.
Same.
Witness exonerated from arrest.
Liability of officer making arrest.
Affidavits, how taken.
In another State, etc.
In foreign country.
How certified when taken out of State.
Depositions in what cases may be taken. |
By the Court itself in which the action or special proceeding is pending. Second-By a Judge of the Supreme Court or District Court where the action or proceeding is pending, if before a Judge or other person out of Court. Sec. 399. Such order can only be made upon affidavit, showing the nature of the action or proceeding, the testimony expected from the witness and its materiality. Sec. 400. If the witness be imprisoned in the county where the action or proceeding is pending, and for a cause other than a sentence for felony, his production may be required. In all other cases his examination, when allowed, shall be taken upon deposition. Sec. 401. Every person who has been in good faith served with a subpoena to attend as a witness before a Court, Judge, Commissioner, referee or other person, in a case where the disobedience of the witness may be punished as a contempt, shall be exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there and returning therefrom. Sec. 402. The arrest of a witness contrary to the last section shall be void; but an officer shall not be liable to the party for making the arrest in ignorance of the facts creating the exoneration, but shall be liable for any subsequent detention of the party, if such party claim the exemption and make an affidavit, stating: First-That he has been served with a subpoena to attend as a witness before a Court, officer or other person, specifying the same, the place of attendance, and the action or proceeding in which the subpoena was issued; and, Second-That he has not been thus served by his own procurement, with the intention of avoiding an arrest.
CHAPTER 3.-On Affidavits.
Sec. 403. An affidavit to be used before any Court, Judge or officer of this State may be taken before any Judge or Clerk of any Court, or any Justice of the Peace or Notary Public in this State. Sec. 404. An affidavit taken in another State, or in a Territory of the United States, to be used in this State, shall be taken before a Commissioner appointed by the Governor of this State to take affidavits and depositions in such other State or Territory, or before any Judge of a Court of Record having a seal. Sec. 405. An affidavit taken in a foreign country to be used in this State, shall be taken before an Embassador, Minister, or Consul of the United States, or before any Judge of a Court of Record having a seal, in such foreign country. Sec. 406. When an affidavit is taken before a Judge of a Court in another State, or in a Territory of the United States, or in a foreign country, the genuineness of the signature of the Judge, the existence of the Court, and the fact that such a Judge is a member thereof, shall be certified by the Clerk of the Court, under the seal thereof.
CHAPTER 4.-Of Depositions Taken in this State.
Sec. 407. The testimony of a witness in this State may be taken by deposition in an action at any time after the service of the summons or the appearance of the defendant, and in a special proceeding, after a question of fact has arisen therein, in the following cases: First-When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended. |
κ1869 Statutes of Nevada, Page 259 (CHAPTER 112)κ
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after a question of fact has arisen therein, in the following cases: First-When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended. Second-When the witness resides out of the county in which his testimony is to be used. Third-When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required. Fourth-When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend, or resides within the county, but more than fifty miles from the place of trial. Sec. 408. Either party may have the deposition of a witness in this State taken before any Judge or Clerk of a Court, or any Justice of the Peace or Notary Public in this State, on serving upon the adverse party previous notice of the time and place of examination, together with a copy of an affidavit showing that the case is one mentioned in the last section. At any time during the forty days immediately after the service of summons by publication has been completed, and at any time thereafter, when the defendant has not appeared, and his residence is unknown to the plaintiff, the notice required by this section may be served upon the Clerk of the Court where the action is pending. Such notice shall be at least five days, and, in addition, one day for every twenty-five miles of the distance of the place of examination from the residence of the person upon whom the notice is served, unless, for a cause shown, a Judge by order prescribe a shorter time. When a shorter time is prescribed, a copy of the order shall be served with the notice. Sec. 409. Either party may attend such examination and put such questions, direct and cross, as may be proper. The deposition, when completed, shall be carefully read to the witness and corrected by him in any particular, if desired; it shall then be subscribed by the witness, certified by the Judge or officer taking the deposition, inclosed in an envelope or wrapper, sealed and directed to the Clerk of the Court in which the action is pending, or to such person as the parties in writing may agree upon, and either delivered by the Judge or officer to the Clerk or such person, or transmitted through the mail or by some safe private opportunity; and thereupon such deposition may be used by either party upon the trial or other proceeding against any party giving or receiving the notice, subject to all legal exceptions. But if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be taken by reason of the absence or intended absence from the county of the witness, or because he is too infirm to attend, proof by affidavit or oral testimony shall be made at the trial that the witness continues absent or infirm, to the best of the deponents knowledge or belief. The deposition thus taken may be also read in case of the death of the witness. Sec. 410. When a deposition has been once taken, it may be read in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it.
CHAPTER 5.-Of Depositions Taken out of this State.
Sec. 411. The testimony of a witness out of the State may be taken by deposition in an action at any time after the service of the summons or the appearance of the defendant, and in a special proceeding, at any time after a question of fact has arisen therein. |
How taken.
Manner of examination, etc.
May be read by either party.
Taken out of the State. |
κ1869 Statutes of Nevada, Page 260 (CHAPTER 112)κ
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How taken.
Settling interrogatories.
Commission. what to authorize.
Postponement of trial on nonreturn.
Testimony, how perpetuated.
Proceedings.
Same. |
summons or the appearance of the defendant, and in a special proceeding, at any time after a question of fact has arisen therein. Sec. 412. The deposition of a witness out of this State shall be taken upon commission issued from the Court, under the seal of the Court, upon an order of the Judge or Court, on the application of either party, upon five days previous notice to the other. It shall be issued to a person agreed upon by the parties, or if they do not agree, to any Judge or Justice of the Peace selected by the officer granting the commission, or to a Commissioner appointed by the Governor of this State to take affidavits and depositions in other States or Territories. Sec. 413. Such proper interrogatories, direct and cross, as the respective parties may prepare, to be settled, if the parties disagree as to their form, by the Judge or officer granting the order for the commission, at a day fixed in the order, or at the time of granting the order for commission, may be annexed to the commission, or when the parties agree to that mode, the examination may be without written interrogatories. Sec. 414. The commission shall authorize the Commissioner to administer an oath to the witness, and to take his deposition in answer to the interrogatories, or when the examination is to be without interrogatories in respect to the question in dispute, and to certify the deposition to the Court, in a sealed envelope directed to the Clerk or other person designed or agreed upon, and forwarded to him by mail or other usual channel of conveyance. Sec. 415. A trial or other proceeding shall not be postponed by reason of a commission not returned, except upon evidence satisfactory to the Court that the testimony of the witness is necessary, and that proper diligence has been used to obtain it.
CHAPTER 6.-Of Proceedings to Perpetuate Testimony.
Sec. 416. The testimony of a witness may be taken and perpetuated as provided in this chapter. Sec. 417. The applicant shall present to a District Judge a petition verified by the oath of the applicant, stating: First-That the applicant expects to be a party to an action in a Court in this State, and in such case the name or names of the person or persons whom he expects will be adverse parties; or, Second-That the proof of some fact or facts is necessary to perfect the title to property in which he is interested, or to establish marriage, descent, heirship, or any other matter which it may hereafter become material to establish, though no suit may at the time be anticipated, or if anticipated, he may not know the parties to such suit; and, Third-The name of the witness to be examined and his place of residence, and a general outline of the facts expected to be proved. Sec. 418. The Judge to whom such petition is presented shall make an order allowing the examination before any Judge of a Court of Record and prescribing the notice to be given, which notice, if the parties are known and reside in this State, shall be personally served on them, and if unknown or non-residents, such notice shall be served on the Clerk of the county where the property to be affected by such testimony is situated, and a copy thereof published in some newspaper, to be designated by the Judge making the order. |
κ1869 Statutes of Nevada, Page 261 (CHAPTER 112)κ
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Sec. 419. Upon proof of the service of the notice as provided in the last section, it shall be the duty of the Judge before whom the testimony is ordered to be taken to proceed to take the testimony of the witnesses named in said petition, upon the facts therein set forth, and the taking of the same may be continued from time to time, in the discretion of the Judge. Sec. 420. The examination shall be by question and answer, unless the parties otherwise agree. The testimony, when completed, shall be carefully read to and subscribed by the witness, then certified by the Judge, and immediately thereafter filed in the office of the Clerk of the District Court of the county where it was taken, together with the order for the examination of the witness, the petition on which the same was granted, and the proof of service of the notice. Sec. 421. The affidavits or other proof filed with the testimony, or certified copies thereof, shall be prima facie evidence of the facts stated therein. Sec. 422. If the trial be had between the persons named in the petition as parties expectant, or their successors in interest, or between any parties wherein it may be material to establish the facts which such testimony proves or tends to prove, upon proof of the death or insanity of the witness, or of his inability to attend the trial by reason of age, sickness or settled infirmity, the testimony, or certified copies thereof, may be used by either party, subject to all legal objections. But if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the examination.
CHAPTER 7.-Administration of Oaths and Affirmations.
Sec. 423. Every Court of this State, every Judge or Clerk of any Court, every Justice of the Peace, and every Notary Public, and every officer authorized to take testimony, or to decide upon the evidence in any proceeding, shall have power to administer oaths or affirmations. Sec. 424. When a person is sworn who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such. Sec. 425. Any witness who desires it may, at his option, instead of taking an oath, make his solemn affirmation, or declaration, by assenting when addressed in the following from: You do solemnly affirm that the evidence you shall give in this issue, (or matter) pending between , and , shall be the truth, the whole truth, and nothing but the truth. Assent to this affirmation shall be made by the answer I do. A false affirmation or declaration shall be deemed perjury equally with a false oath.
CHAPTER 8.-Inspection of Documents and Miscellaneous Provisions as to Records and Writings.
Sec. 426. Any Court in which an action is pending, or a Judge thereof may, upon notice, order either party to give to other within a specified time an inspection and copy, or permission to take a copy of any book, document, or paper in his possession, or under his control, containing evidence relating to the merits of the action, or the defence therein. |
Same.
Same.
Effect of affidavit.
Depositions when to be used as evidence.
Who authorized to administer oaths.
How administered.
Affirmation form of.
Court may order party to give copy, etc. |
κ1869 Statutes of Nevada, Page 262 (CHAPTER 112)κ
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Evidence of contents of writing.
Alteration of writing to be accounted for.
Judicial record, how proved.
Same.
Judicial record of foreign country, how proved.
Copy of, when admissible. |
containing evidence relating to the merits of the action, or the defence therein. If compliance with the order be refused, the Court may exclude the book, document, or paper from being given in evidence, or if wanted as evidence by the party applying, may direct the jury to presume it to be such as he alleges it to be; and the Court may also punish the party refusing for a contempt. This section shall not be construed to prevent a party from compelling another to produced books, papers, or documents when he is examined as a witness. Sec. 427. There shall be no evidence of the contents of a writing, other than the writing itself, except in the following cases: First-When the original has been lost or destroyed; in which case proof of the lost or destruction shall first be made. Second-When the original is in the possession of the party against whom the evidence is offered, and he fails to produce it after reasonable notice. Third-When the original is a record or other document in the custody of a public officer, or officer of a corporation. Fourth-When the original has been recorded and a certified copy of the record is made evidence by statute. Fifth-When the original consists of numerous accounts or other documents which cannot be examined in Court without great loss of time, and the evidence sought from them is only the general result of the whole. Sec. 428. The party producing a writing as genuine, which has been altered, or appears to have been altered after its execution, in a part material to the question in dispute, and such alteration is not noted on the writing, shall account for the appearance or alteration. He may show that the alteration was made by another without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made. If he do that, he may give the writing in evidence, but not otherwise. Sec. 429. A judicial record of this State, or the United States, or of any Territory, may be proved by the production of the original, or a copy thereof certified by the Clerk, or other person having the legal custody thereof, under the seal of the Court, to be a true copy of such record. Sec. 430. The records and judicial proceedings of the Courts of any other State of the United States, or of any Territory, may be proved or admitted in the Courts of this State, by the attestation of the Clerk and the seal of the Court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice or presiding Magistrate, as the case may be, that the said attestation is in due form. Sec. 431. A judicial record of a foreign country may be proved by the production of a copy thereof, certified by the Clerk, with the seal of the Court annexed, if there be a Clerk and seal, or by the legal keeper of the record, with the seal of his office annexed, if there be a seal, to be a true copy of such record, together with a certificate of a Judge of the Court, that the person making the certificate is the Clerk of the Court, or the legal keeper of the record, and in either case that the signature is genuine, and the certificate in due form; and also together with the certificate of the Minister or Embassador of the United States, or of a Consul of the United States, in such foreign country, that there is such a Court, specifying generally the nature of its jurisdiction, and verifying the signature of the Judge and Clerk, or other legal keeper of the record. Sec. 432. A copy of the judicial record of a foreign country shall also be admissible in evidence upon proof: First-That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it. |
κ1869 Statutes of Nevada, Page 263 (CHAPTER 112)κ
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offered has been compared by the witness with the original, and is an exact transcript of the whole of it. Second-That such original was in the custody of the Clerk of the Court or other legal keeper of the same; and, Third-That the copy is duly attested by a seal, which is proved to be the seal of the Court where the record remains, if it be the record of a Court, or if there be no such seal, or if it be not a record of a Court, by the signature of the legal keeper of the original. Sec. 433. Printed copies in volumes of statutes, code or other written law, enacted by any other State, or Territory, or foreign government, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law, in the Courts and judicial tribunals of such State, Territory, or Government, shall be admitted by the Courts and officers of this State on all occasions as presumptive evidence of such laws. Sec. 434. A seal of a Court or public office when required to any writ or process, or proceeding, or to authenticate a copy of any record or document, may be impressed with wax, wafer, or any other substance, and then attached to the writ, process, or proceeding, or to the copy of the record or document, or it may be impressed on the paper alone.
TITLE XII.
Of the Writ of Certiorari and of Mandamus.
CHAPTER 1.-The Writ of Certiorari or Review.
Sec. 435. The writ of certiorari may be denominated the writ of review. Sec. 436. This writ may be granted on application by any Court of this State, except a Justices, or Recorders, or Mayors Court; the writ shall be granted in all cases when an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor in the judgment of the Court, any plain, speedy, and adequate remedy. Sec. 437. The application shall be made on affidavit by the party beneficially interested, and the Court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice. Sec. 438. The writ may be directed to the inferior tribunal, board, or officer, or to any other person having the custody of the record or proceedings to be certified. When directed to a tribunal, the Clerk, if there be one, shall return the writ with the transcript required. Sec. 439. The writ of review shall command the party to whom it is directed to certify fully to the Court issuing the writ, as a specified time and place, and annex to the writ a transcript of the record and proceeding, (describing or referring to them with convenient certainty) that the same may be reviewed by the Court, and requiring the party in the mean time to desist from further proceedings in the matter to be reviewed. Sec. 440. If a stay of proceedings be not intended the words requiring the stay shall be omitted from the writ. These words may be inserted or omitted, in the sound discretion of the Court, but if omitted, the power of the inferior Court or officer shall not be suspended nor the proceedings stayed. |
Printed volumes of statutes to be admitted as evidence.
Seal of Court, how impressed.
Denomination. By what Court, and in what cases granted.
Application for, how made.
To whom directed.
Writ, what to command.
Same. |
κ1869 Statutes of Nevada, Page 264 (CHAPTER 112)κ
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How served
Review upon, extent of.
Return of, judgment.
Copy to be transmitted
Judgment roll. Appeal.
Writ denominated. By what Court and in what cases may be issued.
Same.
To be either alternative or peremptory.
When alternative or peremptory to be issued. |
be inserted or omitted, in the sound discretion of the Court, but if omitted, the power of the inferior Court or officer shall not be suspended nor the proceedings stayed. Sec. 441. The writ shall be served in the same manner as a summons in civil action, except when otherwise expressly directed by the Court. Sec. 442. The review upon this writ shall not be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer. Sec. 443. If the return to the writ be defective, the Court may order a further return to be made. When a full return has been made, the Court shall proceed to hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming or annulling or modifying the proceedings below. Sec. 444. A copy of the judgment, signed by the Clerk, shall be transmitted to the inferior tribunal, board, or officer having the custody of the record or proceeding certified up. Sec. 445. A copy of the judgment, signed by the Clerk, entered upon or attached to the writ and return shall constitute the judgment roll. If the proceeding be had in any other than the Supreme Court, an appeal may be taken from the judgment in the same manner and upon the same terms as from a judgment in a civil action.
CHAPTER 2.-The Writ of Mandate or Mandamus.
Sec. 446. The writ of mandamus may be denominated the writ of mandate. Sec. 447. It may be issued by any Court in this State, except a Justices, to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person. Sec. 448. This writ shall be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It shall be issued upon affidavit, on the application of the party beneficially interested. Sec. 449. The writ shall be either alternative or peremptory. The alternative writ shall state generally the allegation against the party to whom it is directed, and command such party, immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the Court, at a specified time and place, why he has not done so. The peremptory writ shall be in a similar form, except that the words requiring the party to show cause why he has not done as commanded shall be omitted, and a return day shall be inserted. Sec. 450. When the application to the Court is made without notice to the adverse party, and the writ be allowed, the alternative shall be first issued; but if the application be upon due notice, and the writ be allowed, the peremptory may be issued in the first instance. The notice of the application, when given, shall be at least ten days. The writ shall not be granted by default. The case shall be heard by the Court, whether the adverse party appear or not. |
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Sec. 451. On the return day of the alternative, or the day on which the application of the writ is noticed, or such further day as the Court may allow, the party on whom the writ or notice shall have been served may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action. Sec. 452. If an answer be made, which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for the writ is based, the Court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had, and the verdict certified to the Court. The question to be tried shall be distinctly stated in the order for trial, and the county shall be designated in which the same shall be had. The order may also direct the jury to assess any damages which the applicant may have sustained in case they find for him. Sec. 453. On the trial the applicant shall not be precluded by the answer of any valid objection to its sufficiency, and may countervail it by proof either in direct denial or by way of avoidance. Sec. 454. If either party be dissatisfied with the verdict of the jury he may move for a new trial upon a statement prepared as provided in Section One Hundred and Ninety-seven. The motion for a new trial may, upon reasonable notice, be brought on before the Judge of the Court in which the cause was tried, either in term or vacation. If a new trial be granted, the jury shall, within five days thereafter, unless the parties agree on a longer time, be summoned to try the issue. After a second verdict in favor is same party, a new trial shall not be had. Sec. 455. If no notice for a new trial be given, or if given be denied, the Clerk, within five days after the rendition of the verdict, or denial of the motion, shall transmit to the Court in which the application for the writ is pending, a certified copy of the verdict, attached to the order of trial; after which either party may bring on the argument of the application, upon reasonable notice to the adverse party. Sec. 456. If no answer be made the case shall be heard on the papers of the applicant. If an answer be made which does not raise a question such as is mentioned in Section four hundred and fifty-two, but only such matters as may be explained or avoided by a reply, the Court may, in its discretion, grant time for replying. If the answer, or answer and reply, raise only questions of law, or put in issue immaterial statements, not affecting the substantial rights of the parties, the Court shall proceed to hear, or fix a day for hearing the argument of the case. Sec. 457. If judgment be given for the applicant he shall recover the damages which he shall have sustained as found by the jury, or as may be determined by the Court or referees, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue, and peremptory mandate shall also be awarded without delay. Sec. 458. The writ shall be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the Court. Sec. 459. When a peremptory
mandate has been issued and directed to any inferior tribunal, corporation,
board or person, if it appear to the Court that any member of such tribunal,
corporation or board, or such person, upon whom the writ has been personally
served. |
Answer to writ.
When Court may order trial by jury.
Objection to sufficiency of answer.
New trial.
Duty of Clerk to transmit verdict.
Argument of application. Same.
Judgment, execution.
Writ. how served.
Refusal for disobeying peremptory mandamus.
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Contempt, what deemed.
When punishable summarily.
Attachment for, when issuable.
Bail. |
has without just excuse, refused or neglected to pay the same, the Court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the Court may order the party to be imprisoned for a period not exceeding three months, and may take [make] any orders necessary and proper for the complete enforcement of the writ. If a fine be imposed upon a Judge or officer who draws a salary from the State or county, a certified copy of the order shall be forwarded to the Controller or County Treasurer, as the case may be, and the amount thereof may be retained from the salary of such Judge or officer. Such Judge or officer, for his willful disobedience, shall also be deemed guilty of a misdemeanor in office.
TITLE XIII.
Of Contempts and their Punishments.
Sec. 460. The following acts or omissions shall be deemed contempts: First-Disorderly, contemptuous or insolent behavior towards the Judge whilst holding Court or engaged in his judicial duties at chambers, or towards referees or arbitrators whilst on a reference or arbitration or other judicial proceeding. Second-A breach of the peace, boisterous conduct or violent disturbance in the presence of the Court or in its immediate vicinity, tending to interrupt the due course of a trial or other judicial proceeding. Third-Disobedience or resistance to any lawful writ, order, rule or process issued by the Court or Judge at chambers. Fourth-Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness. Fifth-Rescuing any person or property in the custody of an officer by virtue of an order of process of such Court or Judge at chambers. Sixth-Disobedience to the order or direction of the Court made pending the trial of an action, in speaking to or in the presence of a juror, concerning an action in which such juror has been impanneled to determine, or in any manner approaching or interfering with such juror with the intent to influence his verdict. Sec. 461. When a contempt is committed in the immediate view and presence of the Court or Judge at chambers it may be punished summarily, for which an order shall be made reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed. When the contempt is not committed in the immediate view and presence of the Court or Judge at chambers, an affidavit shall be presented to the Court or Judge of the facts constituting the contempt or a statement of the facts by the referees or arbitrators. Sec. 462. When the contempt is not committed in the immediate view and presence of the Court or Judge a warrant of attachment may be issued to bring the person charged to answer, or without a previous arrest a warrant of commitment may upon notice, or upon an order to show cause, be granted; and no warrant of commitment shall be issued without such previous attachment to answer, or such notice or order, to show cause. Sec. 463. Whenever a warrant of attachment is issued pursuant to this chapter, the Court or Judge shall direct, by an endorsement on such warrant, that the person charged may be let to bail for his appearance, in an amount to be specified in such endorsement. |
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such warrant, that the person charged may be let to bail for his appearance, in an amount to be specified in such endorsement. Sec. 464. Upon executing the warrant of attachment, the Sheriff shall keep the person in custody, bring him before the Court or Judge, and detain him until an order be made in the premises, unless the person arrested entitle himself to be discharged, as provided in the next section. Sec. 465. When a direction to let the person arrested to bail is contained in the warrant of attachment, or endorsed thereon, he shall be discharged from the arrest, upon executing and delivering to the officer, at any time before the return day of the warrant, a written undertaking, with two sufficient sureties to the effect that the person arrested will appear on the return of the warrant, and abide the order of the Court or Judge thereupon; or they will pay as may be directed, the sum specified in the warrant. Sec. 466. The officer shall return the warrant of arrest and the undertaking, if any, received by him from the person arrested, by the return day specified therein. Sec. 467. When the person arrested has been brought up or appeared, the Court or Judge shall proceed to investigate the charge, and shall hear any answer which the person arrested may make to the same, and may examine witnesses for or against him, for which an adjournment may be had from time to time, if necessary. Sec. 468. Upon the answer and evidence taken, the Court or Judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he is guilty of the contempt, a fine may be imposed on him not exceeding five hundred dollars, or he may be imprisoned not exceeding five days, or both. Sec. 469. When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he have performed it, and in that case the act shall be specified in the warrant of commitment. Sec. 470. Persons proceeded against according to the provisions of this chapter shall also be liable to indictment for the same misconduct, if it be an indictable offense, but the Court before which a conviction is had on the indictment, in passing sentence, shall take into consideration the punishment before inflicted. Sec. 471. When the warrant of arrest has been returned served, if the person arrested do not appear on the return day, the Court or Judge may issue another warrant of arrest, or may order the undertaking to be prosecuted, or both. If the undertaking be prosecuted, the measure of damages in the action shall be the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the warrant was issued, and the costs of the proceeding. Sec. 472. Whenever, by the provisions of this chapter, an officer is required to keep a person arrested on a warrant of attachment in custody, and to bring him before a Court or Judge, the inability, from illness or otherwise, of the person to attend, shall be a sufficient excuse for not bringing him up; and the officer shall not confine a person arrested upon the warrant in a prison, or otherwise restrain him of personal liberty, except so far as may be necessary to secure his personal attendance. Sec. 473. In cases of contempt, the punishment shall be by fine and imprisonment, but no fine shall exceed the sum of five hundred dollars, and no imprisonment shall exceed the period of five days, except as provided in section four hundred and sixty-nine. |
Duty of Sheriff.
Discharge from arrest.
Return of warrant.
Investigation of charge.
Penalty, if found guilty.
Same, for omission to perform certain acts within power.
Indictment.
Proceedings when defendant does not appear.
Duty of officer having person in custody.
Contempt, punishment for. |
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Compensation of attorneys, etc.
When allowed of course to plaintiff.
When several actions on one bond, etc.
When allowed of course to defendant.
When allowed or not.
When plaintiff fails to recover against all defendants.
Appeal.
Referees.
Costs when trial postponed. |
TITLE XIV.
Of Costs.
Sec. 474. The measure and mode of compensation of attorneys and counselors shall be left to the agreement, express or implied, of the parties, but there shall be allowed to the prevailing party in any action in the Supreme and District Courts, his costs and necessary disbursements, in the action or special proceeding in the nature of an action. Sec. 475. Costs shall be allowed of course to the plaintiff, upon a judgment in his favor in the following cases: First-In an action for the recovery of real property. Second-In an action to recover the possession of personal property, when the value of the property amounts to three hundred dollars or over, such value shall be determined by the jury, Court, or referee by whom the action is tried. Third-In an action for the recovery of money or damages, where plaintiff recovers three hundred dollars or over. Fourth-In a special proceeding in the nature of an action. Sec. 476. When several actions are brought on one bond, undertaking, promissory note, bill of exchange, or other instrument in writing, or in any other case for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs shall be allowed to the plaintiff in more than one of such actions, which may be at his election, if the party proceeded against in the other actions were at the commencement of the previous action openly within this State; but the disbursements of the plaintiff shall be allowed to him in each action. Sec. 477. Costs shall be allowed of course to the defendant upon a judgment in his favor in the actions mentioned in section four hundred and seventy-five, and in a special proceeding in the nature of an action. Sec. 478. In other actions than those mentioned in section four hundred and seventy-five, costs may be allowed or not, and if allowed, may be apportioned between the parties, on the same or adverse sides, in the discretion of the Court; but no costs shall be allowed in an action for the recovery of money or damages when the plaintiff recovers less than three hundred dollars, nor in an action to recover the possession of personal property, when the value of the property is less than three hundred dollars. Sec. 479. When there are several defendants in the actions mentioned in section four hundred and seventy-five not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the Court shall award costs to such of the defendants as have judgment in their favor. Sec. 480. In the following cases the costs of an appeal shall be in the discretion of the Court: First-When a new trial is ordered. Second-When a judgment is modified. Sec. 481. The fees of referees shall be fifteen dollars to each, for every day spent in the business of the reference; but the parties may agree in writing upon any other rate of compensation, and thereupon such rate shall be allowed. Sec. 482. When an application is made to a Court or referee to postpone a trial, the payment of costs occasioned by the postponement may be imposed, in the discretion of the Court or referee, as a condition of granting the same. |
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may be imposed, in the discretion of the Court or referee, as a condition of granting the same. Sec. 483. When in an action for the recovery of money only, the defendant alleges in his answer that before the commencement of the action, he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in Court, for the plaintiff, the amount so tendered, and the allegation be found to be true, the plaintiff shall not recover costs, but shall pay costs to the defendant. Sec. 484. In an action prosecuted or defended by an executor, administrator, trustee of express trust, or a person expressly authorized by statute, costs may be recovered as in an action by and against a person prosecuting and defending in his own right; but such costs shall, by the judgment, be made chargeable only upon the estate, fund, or party represented, unless the Court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in the action or defense. Sec. 485. When the decision of a Court of inferior jurisdiction in a special proceeding is brought before a Court of higher jurisdiction for a review in any other way than by appeal, the same costs shall be allowed as in cases on appeal, and may be collected by execution, or in such manner as the Court may direct, according to the nature of the case. Sec. 486. The party in whose favor judgment is rendered, and who claims his costs, shall deliver to the Clerk of the Court, within two days after the verdict or decision of the Court, a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum shall be verified by the oath of the party or his attorney, stating that the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding. Sec. 487. The Clerk shall include in the judgment entered up by him any interest in the verdict or decision of the Court or referee, from the time it was rendered or made, and the costs, if the same have been taxed or ascertained, and he shall, within two days after the same shall be taxed or ascertained, if not included in the judgment, insert the same in a blank to be left in the judgment for that purpose, and shall make a similar insertion of the costs in the copies and docket of the judgment. Sec. 488. When a plaintiff in an action resides out of the State or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant. When required, all proceedings in the action shall be stayed until an undertaking, executed by two or more persons, be filed with the Clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the Court or Judge upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new or additional undertaking be executed and filed. Sec. 489. Each of the sureties on the undertaking mentioned in the last section shall annex to the same an affidavit that he is a resident and householder or freeholder within the county, and is worth double the amount specified in the undertaking, over and above all his just debts and liabilities, exclusive of property exempt from execution. Sec. 490. After the lapse of thirty days from the service of notice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the Court or Judge may order the action to be dismissed. |
When defendant has tendered amount due
In action where administrator, etc. is party.
On review.
Memorandum of, to be delivered to Clerk.
To be included in judgment.
Security for costs.
Same.
Same. |
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Motions, etc.
Where to be made.
Notice of.
May be transferred.
Service of papers, how made.
Same.
When served by mail.
Same. |
that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the Court or Judge may order the action to be dismissed.
TITLE XV.
Of Motions, Orders, Notices, Service of Papers, and Miscellaneous Provisions.
Sec. 491. Every direction of a Court or Judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion. Sec. 492. Motions shall be made in the county in which the action is brought, or in an adjoining county in the same district. Sec. 493. When a written notice of a motion is necessary, it shall be given, if the Court be held in the same district where both parties reside, five days before the time appointed for the hearing; otherwise ten days, but the Court or Judge may prescribe a shorter time. Sec. 494. When a notice of a motion is given, or an order to show cause is made returnable before a Judge out of Court, and at the time fixed for the motion, or on the return day of the order, the Judge is unable to hear the parties, the matter may be transferred by his order to some other Judge, before whom it might originally have been brought. Sec. 495. Written notices and other papers, when required to be served on the party or an attorney, shall be served in the manner prescribed in the next three sections, when not otherwise provided; but nothing in this title shall be applicable to original or final process, or any proceedings to bring a party into contempt. Sec. 496. The service may be personal, by delivery to the party or his attorney, on whom the service is required to be made, or it may be as follows: First-If upon an attorney, it may be made during his absence from his office, by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving them, between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the office; or if it be not open, so as to admit of such service, then by leaving them at the attorneys residence, with some person of suitable age and discretion; and if his residence be not known, then by putting the same inclosed in an envelope, into the post-office directed to such attorney. Second-If upon a party, it may be made by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some person of suitable age and discretion, and if his residence be not known, by putting the same inclosed in an envelope, into the post-office directed to such party. Sec. 497. Service by mail may be made, when the person making the service, and the person on whom it is to be made, reside at different places, between which there is a regular communication by mail. Sec. 498. In case of service by mail, the notice or other paper shall be deposited in the post-office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. And in such case the time of service shall be increased one day for every twenty-five miles distance between the place of deposit and place of address. |
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twenty-five miles distance between the place of deposit and place of address. Sec. 499. A defendant shall be deemed to appear in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him. After appearance, a defendant or his attorney shall be entitled to notice of all subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, service of notice or papers need not be made upon him, unless he be imprisoned for want of bail. Sec. 500. When a plaintiff or a defendant who has appeared resides out of the State, and has no attorney in the action or proceeding, the service may be made on the Clerk for him. But in all cases where a party has an attorney in the action or proceeding, the service of papers, when required, shall be upon the attorney instead of the party, except of subpoenas, of writs, and other process issued in the suit, and of papers to bring him into contempt. Sec. 501. Successive actions may be maintained upon the same contract or transaction, whenever, after the former action, a new cause of action arises therefrom. Sec. 502. Whenever two or more actions are pending at one time between the same parties, and in the same Court, upon causes of action which might have been joined, the Court may order the actions to be consolidated into one. Sec. 503. An action may be brought by one person against another, for the purpose of determining an adverse claim which the latter makes against the former, for money or property, upon an alleged obligation; and also against two or more persons, for the purpose of compelling one to satisfy a debt due the other, for which the plaintiff is bound as security. Sec. 504. The Clerk shall keep among the records of the Court a register of actions. He shall enter therein the title of the action, with brief notes under it, from time to time, of all papers filed, and proceedings had therein. Sec. 505. When there are three referees, or three arbitrators, all shall meet, but two of them may do any act which might be done by all. Sec. 506. The time within which an act is to be done, as provided in this Act, shall be computed by excluding the first day, and including the last. If the last day be Sunday it shall be excluded. Sec. 507. An affidavit, notice, or other paper, without the title of the action or proceeding in which it is made or with a defective title, shall be as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding. Sec. 508. When a cause of action has arisen in another State or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of a citizen thereof who has held the cause of action from the time it accrued. |
When defendant deemed to have appeared.
Service after appearance, etc.
Successive actions on same contract. When may be consolidated.
Action to determine adverse claim.
Register of actions.
Referees, majority may act. Time, how computed.
Paper, without the title of the action.
Cause of action in another State, etc. |
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Parties to actions in Justices Courts. Jurisdiction.
May appear in person or by attorney.
Jurisdiction of person. |
TITLE XVI.
Of Proceedings in Civil Cases, in Justices Courts.
CHAPTER 1.-Of [the] Parties and the Time and Place of Commencing Actions in Justices Courts.
Sec. 509. The provisions of Title One of this Act, as to parties to actions, shall be applicable to actions of which a Justices Court has jurisdiction. Justices Courts shall have jurisdiction of the following actions and proceedings: First-Of an action arising on contract for the recovery of money only, if the sum claimed, exclusive of interest, does not exceed three hundred dollars. Second-Of an action for damages for injury to the person, or for taking or detaining personal property, or for injuring real or personal property, if the damages claimed do not exceed three hundred dollars. Third-Of an action for a fine, penalty or forfeiture, not exceeding three hundred dollars, given by statute or the ordinance of any incorporated or unincorporated city, town or village. Fourth-Of an action upon a bond conditioned for the payment of money not exceeding three hundred dollars, though the penalty exceed that sum, the judgment to be given for the sum actually due. When the payments are to be made by installments, an action may be brought for each installment as it becomes due. Fifth-Of an action upon a surety bond or undertaking, though the penalty exceed, if the amount claimed does not exceed three hundred dollars. Sixth-Of an action to recover the possession of personal property when the value of such property does not exceed three hundred dollars. Seventh-To take and enter judgment on the confession of a defendant when the amount confessed does not exceed three hundred dollars. Eighth-Of actions for the possession of lands and tenements where the relation of landlord and tenant exists. Ninth-Of actions when the possession of lands or tenements has been unlawfully or fraudulently obtained or withheld, in which case the proceedings shall be as prescribed by the Acts upon that subject. Tenth-Of proceedings respecting vagrants and disorderly persons. Eleventh-Of suits for the collection of taxes, where the amount of the tax sued for does not exceed three hundred dollars. The jurisdiction conferred by this section shall not extend to a civil action in which the title to real estate or mining claims or questions to boundaries of lands are involved, or to actions to enforce mechanics liens, and if questions of title to real property be involved, cases involving such questions shall be disposed of as hereafter provided in this Act. The Courts held by Justices of the Peace shall be denominated Justices Courts. They shall have no terms, but shall always be open. Justices Courts shall be held in their respective townships, precincts or cities. Sec. 510. Parties in Justices Courts may prosecute or defend in person or by attorney; and any person, on the request of a party, may act as his attorney, except that the Constable by whom the summons or jury process was served shall not appear or act on the trial in behalf of either party. Sec. 511. No person shall be held to answer to any summons issued against him from a Justices Court in a civil action in any township, precinct or city other than the one in which he shall reside, except in the cases following: First-When there shall be no Justices Court for the township, precinct or city in which the defendant may reside, or no Justice competent to act on the case. |
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cept in the cases following: First-When there shall be no Justices Court for the township, precinct or city in which the defendant may reside, or no Justice competent to act on the case. Second-When two or more persons shall be jointly or jointly and severally bound in any debt or contract, or otherwise jointly liable in the same action and reside in different townships, precincts or different cities of the same county, or in different counties, the plaintiff may prosecute his action in a Justices Court of the township, precinct or city in which any of the debtors or other persons liable may reside. Third-In cases of injury to the person, or to real or personal property, the plaintiff may prosecute his action in the township, precinct or city where the injury was committed. Fourth-When personal property unjustly taken or detained is claimed, or damages therefor are claimed, the plaintiff may bring his action in any township, precinct or city in which the property may be found, or in which the property was taken. Fifth-When the defendant is a non-resident of the county, he may be sued in any township, precinct or city wherein he may be found. Sixth-When a person has contracted to perform any obligation at a particular place, and resides in another township, precinct or city, he may be sued in the township, precinct or city in which such obligation is to be performed, or in which he resides. Seventh-When the foreclosure of a mortgage or the enforcement of a lien upon real or personal property is sought by the action, the plaintiff may sue in the township, precinct or city where the property is situated. Sec. 512. Judgment upon confession may be entered up in any Justices Court in the State specified in the confession. The provisions of Title Ten, Chapter Two of this Act shall apply to such confession, the word Justice being substituted for that of Clerk wherever it may occur. Sec. 513. Justices Courts shall have jurisdiction of an action upon the voluntary appearance of the parties without summons, without regard to their residences, or the place where the cause of action arose, or the subject matter of the action may exist.
CHAPTER 2.-Summons, Arrest, Attachment, and Claim of Personal Property.
Sec. 514. Actions in Justices Courts shall be commenced by filing a copy of the account, note, bill, bond or instrument upon which the action is brought, or a concise statement in writing of the cause of action, and the issuance of a summons thereon, or by the voluntary appearance and pleadings of the parties without summons. In the latter case the action shall be deemed commenced at the time of appearance. Sec. 515. When a guardian is necessary he shall be appointed by the Justice as follows: First-If the infant be a plaintiff, the appointment shall be made before the summons is issued, upon the application of the infant, if he be of the age of fourteen years or upwards; if under that age, upon the application of some relative or friend. The consent in writing of the guardian to be appointed, and to be responsible for costs, if he fail in the action, shall be first filed with the Justice. Second-If the infant be defendant the guardian shall be appointed at the time the summons is returned or before the pleadings. It shall be the right of the infant to nominate his own guardian, if the infant be over fourteen years of age, and the proposed guardian be present and consent in writing to be appointed. |
Further jurisdiction.
Actions, how commenced.
Guardian, how appointed. |
κ1869 Statutes of Nevada, Page 274 (CHAPTER 112)κ
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Summons, form of.
Time of service and appearance.
How served.
Sections made applicable to Justices Courts.
Proviso.
When order to arrest may be indorsed, etc.
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consent in writing to be appointed. Otherwise the Justice may appoint any suitable person who gives such consent. Sec. 516. The summons shall be addressed to the defendant by name, or if his name be unknown, by a fictitious name, and shall summon him to appear before the Justice at his office, naming its township, precinct, or city, and at a time specified therein, to answer the complaint of the plaintiff, for a cause of action therein described, in general terms, sufficient to apprise the defendant of the nature of the claim against him; and in action for money or damages shall state the amount for which the plaintiff will take judgment if the defendant fail to appear and answer. It shall be subscribed by the Justice before whom it is returnable. Sec. 517. The time mentioned in the summons for the appearance of the defendant and the time of service shall be as follows: First-When the summons is accompanied with an order to arrest the defendant, it shall be returnable immediately. Second-When the defendant is not a resident of the township or city, or when the plaintiff is not a resident, it shall be returnable not more than two days from its date, and shall be served at least one day before the time for appearance, except in cases where the summons is to be served by publication, or out of the State, or by posting notices thereof, when it shall be made returnable at any time designated by the Justice, not exceeding four months from the date of its issuance. Third-In all other cases it shall be returnable in not less than two or more than ten days from its date, and shall be served at least two days before the time for appearance. Sec. 518. The summons shall be served by the Sheriff or a Constable of the county, or by any male citizen of the United States over twenty-one years of age, as follows: First-If the action be against a corporation, by a delivery of a copy to the President or other head of the corporation, or to the Secretary, Cashier or managing agent thereof, or when no such officer resides in the county, to a Director resident therein. Second-If against a minor under the age of fourteen years, by delivery of a copy to such minor, and also to his father, mother or guardian; or if there be none within the county, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is. Third-If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, by delivery of a copy to such guardian. Fourth-In all other cases, by delivery of the copy to the defendant personally. Sec. 519. Sections Thirty to Thirty-five, both inclusive, of Title Three of this Act are hereby made applicable to Justices Courts, and proceedings therein-the word Justice being inserted wherever the word Clerk or Judge occurs, and the word Constable inserted wherever the word Sheriff occurs, and the word complaint whenever it occurs being stricken out and disregarded; provided, that in actions upon contracts for the payment of money, the Justice may, in his discretion, instead of ordering publication of summons or the appointment of an attorney to appear for the defendant, order the service of the summons to be made by posting copies thereof in three public places in the township, within one day after the same is issued. Sec. 520. An order to arrest the defendant may be endorsed on a summons issued by the Justice, and the defendant may be arrested thereon by the Sheriff or Constable at the time of serving the summons, and brought before the Justice, and there detained until duly discharged in the following cases, |
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in the following cases, arising after the passage of this Act: First-In an action for the recovery of money or damages on a cause of action arising upon a contract, express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors; or where the action is for the willful injury to the person, or for taking, detaining or injuring personal property. Second-In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use by an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity. Third-When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought. Fourth-When the defendant has removed, concealed or disposed of his property, or is about to do so, with intent to defraud his creditors. Sec. 521. Before an order of arrest shall be made, the party applying shall prove to the satisfaction of the Justice, by the affidavit of himself or some other person, the facts on which the application is founded. The plaintiff shall also execute and deliver to the Justice a written undertaking, with two or more sureties, to the effect that if the defendant recover judgment, the plaintiff will pay to him all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least two hundred dollars. Sec. 522. The defendant, immediately upon being arrested, shall be taken to the office of the Justice who made the order, and if he be absent or unable to try the action, or if it be made to appear to him by the affidavit of defendant that he is a material witness in the action, the officer shall immediately take the defendant before the next Justice of the city, precinct or township, who shall take cognizance of the action, and proceed thereon as if the summons had been issued and the order of arrest made by him. Sec. 523. The officer making the arrest shall immediately give notice thereof to the plaintiff or his attorney or agent, and endorse on the summons, and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. Sec. 524. The officer making an arrest shall keep the defendant in custody until duly discharged by order of the Justice. Sec. 525. The defendant under arrest, on his appearance with the officer, may demand a trial immediately; and upon such demand being made, the trial shall not be delayed beyond three hours, except by the trial of another action pending at the time, or he may have an adjournment, and be discharged on giving bail, as provided in the next section. An adjournment at the request of the plaintiff, beyond three hours, shall discharge the defendant from arrest, but the action may proceed notwithstanding; and the defendant shall be subject to arrest on the execution in the same manner as if he had not been so discharged. Sec. 526. If the defendant, on his appearance, demand an adjournment, the same shall be granted, on condition that he execute and file with the Justice an undertaking, with two or more sufficient sureties, to be approved by the Justice, to the effect that he will render himself amenable to the process of the Court during the pendency of the action, and such as may be issued, to enforce the judgment therein, or that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action. On filing the undertaking specified in this section, the Justice shall order the defendant to be discharged from custody. |
Undertaking, etc.
When defendant may be taken before another Justice.
Duty of officer making arrest.
Same.
Defendant under arrest may demand immediate trial.
How defendant may obtain adjournment. |
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Sections applicable to Justices Courts.
Pleadings defined.
When to be in writing and verified.
Oral to be entered, written to be filed.
Complaint, what to state. Answer, what to contain.
Denial.
When cause arises on instrument for payment of money.
Instruments, genuineness |
Sec. 527. The following sections of Chapter One, Title Five, of this Act shall be applicable to Justices Courts and proceedings therein, to wit: Eighty to eighty-five, both inclusive; and the following of Chapter Two, same Title, to wit: Ninety-nine to one hundred and two, both inclusive; one hundred and four and one hundred and seven to one hundred and ten, both inclusive; the word Justice being inserted in lieu of Clerk or Judge wherever they occur, and the word Constable in lieu of the word Sheriff; also Sections One Hundred and Twenty-three to One Hundred and Forty-four, both inclusive; the word Justice being inserted in lieu of that of Judge and Clerk whenever it may occur; provided, that the writ of attachment shall be directed to the Sheriff or any Constable of any county of this State, and may be executed by the Constable, and wherever the word Sheriff occurs the word Constable shall be deemed to be also inserted.
CHAPTER 3.-Pleadings and Trial.
Sec. 528. The pleadings in Justices Courts shall be: First-The complaint by the plaintiff, stating the cause of action. Second-The answer by the defendant, stating the ground of the defense. Sec. 529. The pleadings shall be in writing, and verified by the oath of the party, his agent or attorney, when the action is: First-For the foreclosure of any mortgage or the enforcement of any lien on real or personal property. Second-Of actions for the possession of lands or tenements. Sec. 530. When the pleadings are oral, the substance of them shall be entered by the Justice in his docket; when in writing, they shall be filed in his office, and a reference made to them in the docket. Pleadings shall not be required to be in any particular form, but shall be such as to enable a person of common understanding to know what is intended. Sec. 531. The complaint shall state in a plain and direct manner the facts constituting the cause of action. Sec. 532. The answer may contain a denial of any of the material facts stated in the complaint which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constituting a defense or a counter claim upon which an action may be brought by the defendant against the plaintiff in a Justices Court. Sec. 533. A statement in answer that the party has not sufficient knowledge or information in respect to a particular allegation in the previous pleading of the adverse party, to form a belief, shall be deemed equivalent to a denial. Sec. 534. When the cause of action or counter claim arises upon an account or instrument for the payment of money only, it shall be sufficient for the party to deliver a copy of the account or instrument to the Court, and to state that there is due to him thereupon from the adverse party a specified sum, which he claims to recover or set off. The Court may, at the time of the pleading, require that the original account or instrument be exhibited to the inspection of the adverse party, and a copy to be furnished, or if it be not so exhibited and a copy furnished, may prohibit its being afterwards given in evidence. Sec. 535. If the plaintiff annex to his complaint, or file with the Justice at the time of issuing the summons, a copy of the promissory note, |
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note, bill of exchange or other written obligation for the payment of money, upon which the action is brought, the defendant shall be deemed to admit the genuineness of the signatures of the makers, indorsers or assignors thereof, unless he specifically deny the same in his answer, and verify the answer by his oath. Sec. 536. Either party may object to a pleading of his adversary, or to any part thereof, that it is not sufficiently explicit to enable him to understand it, or that it contains no cause of action or defense, although it be taken as true. If the Court deem the objection well founded, it shall order the pleading to be amended, and if the party refuse to amend, the defective pleading shall be disregarded. Sec. 537. A variance between the proof on the trial and the allegations in a pleading shall be disregarded as immaterial, unless the Court be satisfied that the adverse party has been misled to his prejudice thereby. Sec. 538. The pleadings may be amended at any time before the trial, to supply a deficiency or omission, when by such amendment substantial justice will be promoted. If the amendment be made after the issue, and it be made to appear to the satisfaction of the Court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment shall be granted. The Court may also, in its discretion, require as a condition of an amendment, the payment of costs to the adverse party, to be fixed by the Court, not exceeding twenty dollars, but such payment shall not be required unless an adjournment is made necessary by the amendment, nor shall an amendment be allowed after a witness is sworn on the trial, when an adjournment thereby will be made necessary. Sec. 539. The parties shall not be at liberty to give evidence upon any question, which involves the title to, or the right of possession to, or the possession of, real property or mining claims, or upon any question involving boundaries to land, or the legality of any tax, impost, assessment, toll or municipal fine, nor shall any issue presenting such question be tried by the Justice, and if it appear from the plaintiffs own showing, on the trial, or from the answer of the defendant, verified by his oath, that the determination of the action will necessarily involve either of such questions, the Justice shall suspend all further proceedings in the action, and certify the pleadings, or if the pleadings be oral, a transcript of the same from his docket to the District Court for the county, and from the time of filing such pleadings or transcript with the Clerk of the District Court, such District Court shall have over the action the same jurisdiction as if it were originally commenced therein. Sec. 540. If at any time before the trial it appear to the satisfaction of the Justice before whom the action is brought, by affidavit of either party, that such Justice is a material witness for either party, or if either party make affidavit that he has reason to believe, and does believe, that he cannot have a fair and impartial trial before such Justice, by reason of the interest, prejudice, or bias of the Justice, on stating the facts upon which such belief is founded, the action shall be transferred to some other Justice of the same or neighboring township or precinct, and in case a jury be demanded, and affidavit of either party is made that he cannot have a fair and impartial trial, on account of the bias or prejudice of the citizens of the township or precinct against him, the action shall be transferred to some other Justice of the Peace in the county, but only one transfer shall be allowed to either party. |
to be admitted.
Objections to pleadings
Variance.
Amendments of pleadings.
Title to real property, evidence not to be given.
When action to be transferred. |
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Proviso.
Adjournment of trial.
Same.
Same. |
party. The Justice to whom an action may be transferred by the provisions of this section shall have and exercise the same jurisdiction over the action as if it had been originally commenced before him. The Justice ordering the transfer of the action to another Justice shall immediately transmit to the latter, on payment by the applicant of all Justices and officers costs unpaid and due from him and the costs of making a copy of the docket for transmission, all the papers in the action, together with a certified transcript from his docket of the proceedings therein; provided, that if the applicant shall fail to pay said costs for the space of one hour, the Justice shall vacate the order changing the place of trial and proceed to try the cause as though such order had never been made. The Justice to whom the case is transferred shall issue a notice stating the time and place when and where the trial will take place; which notice shall be served upon the parties by any officer authorized to serve process in a Justices Court, or by any person specially appointed by the Justice for that purpose, at least one day before the trial. Sec. 541. The trial may be adjourned by consent or upon application of either party, without the consent of the other, for a period not exceeding ten days, (except as provided in the next section) as follows: First-The party asking the adjournment shall, if required by his adversary, prove, by his own oath or otherwise, that he cannot, for want of material testimony which he expects to procure, safely proceed to trial, and shall show in what respect the testimony expected is material, and that he has used due diligence to procure it, and has been unable to do so. Second-The party asking the adjournment shall also, if required by the adverse party, consent that the testimony of any witness of such adverse party who is in attendance, be then taken by deposition before the Justice, which shall accordingly be done, and the testimony so taken may be read on the trial, with the same effect and subject to the same objections as if the witness were produced. But such objections shall be made at the time of taking the deposition. Third-The Court may also require the moving party to state upon affidavit the evidence which he expects to obtain, and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be postponed. Sec. 542. An adjournment may be had either at the time of joining issue or at any subsequent time to which the case may stand adjourned, on application of either party, for a period longer than ten days, but not to exceed four months from the time of the return day of the summons, upon proof, by the oath of the party or otherwise, to the satisfaction of the Justice, that such party cannot be ready for trial before the time to which he desires an adjournment for want of material evidence, particularly describing it, and that the delay has not been made necessary by an [any] act of negligence on his part since the action was commenced; that he has used due diligence to procure the evidence, and has been unable to do so, and that he expects to procure the evidence at the time stated by him; provided, that if the adverse party admit that such evidence would be given. and consent that it may be considered as given on the trial, or offered or overruled as improper, the adjournment shall not be had. Sec. 543. No adjournment shall be granted for a period longer than ten days, upon the application of either party, except upon condition that such party file an undertaking, with sureties, to be approved by the Justice, to the effect that they will pay to the opposite party the amount of any judgment that may be recovered against the party applying, in the money or currency claimed in the pleading of the plaintiff. |
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by the Justice, to the effect that they will pay to the opposite party the amount of any judgment that may be recovered against the party applying, in the money or currency claimed in the pleading of the plaintiff. Sec. 544. If the plaintiff fail to appear at the return day of the summons, the action shall be dismissed. If the defendant fail to appear at the return day of the summons, or if either party fail to attend at a day to which the trial has been adjourned, or fail to make the necessary pleading or proof on his part, the case may nevertheless proceed at the request of the adverse party, and judgment shall be given in conformity with the pleadings and proofs. Sec. 545. A trial by jury shall be demanded at the time of joining issue, and shall be deemed waived if neither party then demand it. When demanded, the trial of the case shall be adjourned until a time and place fixed for the return of the jury. If neither party desire an adjournment, the time and place shall be determined by the Justice, and shall be on the same day or within the next two days. The jury shall be summoned upon an order of the Justice, from the citizens of the city, precinct or township, and not from the bystanders. Sec. 546. At the time appointed for the trial the Justice shall proceed to call from the jurors summoned the names of the persons to constitute the jury for the trial of the issue. The jury, by consent of the parties, may consist of any number not more than twelve, nor less than four. Sec. 547. If a sufficient number of competent and indifferent jurors do not attend, the Justice shall direct others to be summoned from the vicinity, and not from the bystanders, sufficient to complete the jury. Sec. 548. Either party may challenge the jurors. The challenges shall be either peremptory or for cause. Each party shall be entitled to three peremptory challenges. Either party may challenge for cause on any grounds set forth in Section One Hundred and Sixty-four. Challenges for cause shall be tried by the Justice in a summary manner, who may examine the juror challenged and witnesses.
Chapter 4.-Judgment and Execution.
Sec. 549. Judgment that the action be dismissed without prejudice to a new action may be entered with costs in the following cases: First-When the plaintiff voluntarily dismisses the action before it is finally submitted. Second-When he fails to appear at the time specified in the summons, or upon adjournment, or within one hour thereafter. Third-When it is objected at the trial and appears by the evidence that the action is brought in the wrong county, township, city or precinct; but if the objection be taken and overruled, it shall be cause only of reversal on appeal, and shall not otherwise invalidate the judgment; if not taken at the trial, it shall be deemed waived, and shall not be cause of reversal. Sec. 550. When the defendant fails to appear and answer, judgment shall be given for the plaintiff as follows: First-When a copy of the account, note, bill or other obligation upon which the action is brought was filed with the Justice at the time the summons was issued, judgment shall be given without further evidence, for the sum specified in the summons, Second-In other cases the Justice shall hear the evidence of the plaintiff and render judgment for such sum only as shall appear by the evidence to be just, but in no case exceeding the amount specified in the summons. |
When action may be dismissed.
Trial by jury, when demanded.
Proceeding when jury trial demanded.
Same.
Same.
Challenging jurors.
Judgment of dismissal without prejudice, in what case entered.
Judgement by default. |
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Jury trial not demanded.
Judgment, how and when entered, etc.
When amount exceeds jurisdiction.
When defendant offers to allow judgment for specified sum.
Judgment when defendant is subject to arrest. Costs to be included in judgment.
Transcript of judgment
Process on judgment, how issued. |
evidence of the plaintiff and render judgment for such sum only as shall appear by the evidence to be just, but in no case exceeding the amount specified in the summons. Sec. 551. Upon issue joined, if a jury trial be not demanded, the Justice shall hear the evidence and decide all questions of fact and of law, and render judgment accordingly. Sec. 552. Upon a verdict, the Justice shall immediately render judgment accordingly. When the trial is by the Justice, judgment shall be entered immediately after the close of the trial, if the defendant has been arrested and is still in custody; in other cases it shall be entered within four days after the close of the trial. If the action be on contract against two or more defendants, and the summons is served on one or more, but not on all, the judgment shall be entered up only against those who were served or have voluntarily appeared, if the contract be [a] several or a joint and several contract; but if the contract be a joint contract only, the judgment shall be entered up against all the defendants, but shall only be enforced against the joint property of all and the individual property of the defendants served or who have voluntarily appeared in the action. In an action on a contract or obligation for the direct payment of money, made payable in a specified or agreed kind of money or currency, judgment for the plaintiff, whether the same be by default or after verdict or decision of the Court, shall follow the contract or obligation, and be made payable in the kind of money or currency specified therein or agreed thereby. Sec. 553. When the amount found due to either party exceeds the sum for which the Justice is authorized to enter judgment, such party may remit the excess, and judgment may be rendered for the residue. Sec. 554. If the defendant at any time before the trial offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued; but if he do not accept such offer before the trial, and fail to recover in the action a sum equal to the offer, he shall not recover costs, but costs shall be adjudged against him, and if he recover, deduct from his recovery. But the offer and failure to accept it shall not be given in evidence to affect the recovery otherwise than as to costs as above provided. Sec. 555. When a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, it shall be so stated in the judgment and entered in the docket. Sec. 556. When the prevailing party is entitled to costs by this chapter, the Justice shall add their amount to the verdict, or in case of a failure of the plaintiff to recover, or in case of a dismissal of the action, shall enter up judgment in favor of defendant for the amount of such costs. Sec. 557. The Justice, on demand of the party in whose favor judgment is rendered, shall give him a transcript thereof, which may be filed and docketed in the office of the Clerk of the District Court for the county where the judgment was rendered. The time of the receipt of the transcript by the Clerk shall be noted by him thereon and entered in the docket, and from that time executions may be issued by the Clerk on such judgments, to the Sheriff of any other county of the State, in the same manner as [upon] judgments recovered in the higher Courts. All process upon judgments recovered in Justices Courts, to be executed within the same county, shall be issued by the Justice or his successors in office. |
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by the Justice or his successors in office. No judgment rendered by a Justice of the Peace shall create any lien upon any lands of the defendant, unless a transcript of such judgment certified by the Justice, be filed and recorded in the office of the County Recorder. When such transcript is to be filed in any other county than that in which the Justice resides, such transcript shall be accompanied with the certificate of the County Clerk as to the official character of the Justice. When so filed and recorded in the office of the Recorder for any county, such judgment shall constitute a lien upon, and bind the lands and tenements of the judgment debtor, situated in the county where such transcript may be filed and recorded in favor of such judgment creditor, as if such judgment had been rendered in the District Court for such county. Sec. 558. Execution for the enforcement of a judgment in a Justices Court may be issued on the application of the party entitled thereto, at any time within five years from the entry of judgment. Sec. 559. The execution when issued by a Justice, shall be directed to the Sheriff or to a Constable of the county, and subscribed by the Justice by whom the judgment was rendered, or by his successor in office. It shall intelligibly refer to the judgment, by stating the names of the parties, and the name of the Justice before whom, and of the county and [the] township or city where, and the time when it was rendered, the amount of judgment, if it be for money, and the kind of money or currency in which it is payable, and if less than the whole is due, the true amount due thereon. It shall contain, in like cases, similar directions to the Sheriff or Constable as are required by the provisions of Title Seven of this Act, in an execution to the Sheriff. Sec. 560. The Sheriff or Constable to whom the execution is directed shall proceed to execute the same in the same manner as the Sheriff is required by the provisions of Title Seven of this Act to proceed upon executions directed to him; and the Constable, when the execution is directed to him, shall be vested for that purpose with all the powers of the Sheriff. And Sections Two Hundred and Fourteen, two Hundred and fifteen, and [from] Two Hundred and Seventeen to Two Hundred and Thirty-six, both inclusive, and Two Hundred and Thirty-eight and Two Hundred and Thirty-nine of Chapter One, said Title, and Chapter Two of the same Title, are hereby made applicable to Justices Courts and proceedings therein, the word Justice being inserted in lieu of the words Judge and Clerk, whenever they occur, and a Constable to whom, and his successor in office, the writ is given, shall have all the powers and be subject to all the duties and liabilities therein given to or imposed upon the Sheriff; provided, that the words in an amount exceeding fifty dollars, in Section Two Hundred and Forty-three, shall be deemed omitted; provided further, that sales of real property shall be made at or upon the property sold.
CHAPTER 5.-General Provisions.
Sec. 561. Those provisions of this Act which are referred to in this Title and no other, shall, in addition to the provisions embraced in this Title, be applicable to Justices Courts and proceedings therein. Sec. 562. Every Justice shall keep a book denominated a Docket, in which he shall enter: First-The title of every action or proceeding. Second-The object of the action or proceeding; and if a sum of money be claimed, the amount of the demand. |
Lien.
Execution may issue.
Form of execution.
How executed.
Sections, etc., applicable to Justices Courts.
Proviso.
Proviso.
Provisions applicable to Justices Courts.
Docket, how kept. |
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Same; entries to be evidence.
Index to.
To be deposited with successor.
Any Justice may issue executions.
Who deemed successor. |
if a sum of money be claimed, the amount of the demand. Third-The date of the summons and the time of its return; and if an order to arrest the defendant be made, or a writ of attachment be issued, a statement of these facts. Fourth-The time when the parties or either of them appear, or their non-appearance, if default be made; a minute of the pleadings and motions, if in writing, referring to them; if not in writing, a concise statement of the material parts of the pleading, and of all motions made during the trial by either party, and his decisions thereon. Fifth-Every adjournment, stating on whose application, whether on oath, evidence or consent, and to what time. Sixth-The demand for a trial by jury, when the same is made, and by whom made, the order for the jury, and the time appointed for the trial and return of the jury. Seventh-The names of the jury who appear and are sworn; the names of all witnesses sworn, and at whose request. Eighth-The verdict of the jury, and when received. If the jury disagree and are discharged, the fact of such disagreement and discharge. Ninth-The judgment of the Court, specifying the costs included, and the time when rendered. Tenth-The issuing of execution, when issued, and to whom; the renewals thereof, if any, and when made, and a statement of any money paid to the Justice, and when and by whom. Eleventh-The receipt of a notice of appeal, if any be given, and of the appeal bond, if any be filed, and of the making and delivery of a transcript of his judgment [or] docket. Sec. 563. The several particulars of the last section specified shall be entered under the title of the action to which they relate, and at the time when they occur. Such entries in a Justices docket, or a transcript thereof, certified by the Justice or his successor in office, shall be primary evidence to prove the facts so stated therein. Sec. 564. A Justice shall keep an alphabetical index to his docket, in which shall be entered the names of the parties to each judgment, with a reference to the page of entry. The names of the plaintiffs shall be entered in the index, in the alphabetical order of the first letter of the family names. Sec. 565. It shall be the duty of every Justice, upon the expiration of his term of office, to deposit with his successor his official dockets, as well his own as those of his predecessors, which may be in his custody, to keep as public records. If the office of a Justice become vacant by his death or removal from the township, precinct or city, or otherwise, before his successor is elected and qualified, the dockets in possession of such Justice shall be deposited with the County Clerk of the county, to be by him delivered to the successor in office of the Justice. Sec. 566. Any Justice with whom the docket of his predecessors is deposited, may issue execution or other process, upon a judgment there entered and unsatisfied in the same manner and with the same effect as the Justice by whom the judgment was entered might have done. In case of the creation of a new county or the change of the boundary between two counties, any Justice into whose hands the docket of a Justice formerly acting as such within the same Territory may come, shall for the purposes of this section be considered the successor of said former Justice. Sec. 567. The Justice elected or appointed to fill a vacancy shall be deemed the successor of the Justice whose office became vacant before the expiration of a full term. When a full term expires, the same or another person elected to take the office in the same township, precinct or city from that time shall be deemed the successor. |
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Sec. 568. When two or more Justices are equally entitled, under the last section, to be deemed the successors in office of a Justice, the Judge of a District Court for the county shall, by a certificate subscribed by him and filed in the office of the County Clerk, designate which Justice shall be the successor of a Justice going out of office, or whose office has become vacant. Sec. 569. The summons, execution, and every other paper made or issued by a Justice, except a subpoena, shall be filled up without a blank left to be filled by another, otherwise it shall be void. Sec. 570. In case of the sickness, or other disability, or necessary absence of a Justice on a return day of a summons, or at the time appointed for a trial, another Justice of the same county or city may, at his request, attend in his behalf, and shall thereupon become vested with the power, for the time being, of the Justice before whom the summons was returnable. In that case the proper entry of the proceedings before the attending Justice, subscribed by him, shall be made in the docket of the Justice before whom the summons was returnable. If the case be adjourned, the Justice before whom the summons was returnable may resume jurisdiction. Sec. 571. The Justice may, at the request of a party, and on being satisfied that it is expedient, specially depute any discreet person of suitable age, and not interested in the action, to serve a summons or execute [execution] with or without an order to arrest the defendant, or with or without a writ of attachment. The said Justice shall be liable on his official bond for all official acts of the person so deputed. Such deputation shall be in writing on the process. Sec. 572. The person deputed shall have the authority of a Constable in relation to the service, execution and return of such process, and shall be subject to the same obligations. Sec. 573. A Constable, notwithstanding the expiration of his term of office, may proceed and complete the execution of all final process which he has begun to execute in the same manner as if he still continued in office, and his sureties shall be liable to the same extent. Sec. 574. A Justice may punish as for contempt persons guilty of the following acts, and no other: First-Disorderly, contemptuous, or insolent behavior toward the Justice while holding the Court, tending to interrupt the due course of a trial or other Judicial proceeding. Second-A breach of the peace, boisterous conduct, or violent disturbance in the presence of the Justice or in the immediate vicinity of the Court held by him, tending to interrupt the due course of trial or other judicial proceedings. Third-Disobedience or resistance to the execution of a lawful order or process, made or issued by him. Fourth-Disobedience to a subpoena duly served, or refusing to be sworn or answer as a witness. Fifth-Rescuing any person or property in the custody of an officer by virtue of an order or process of the Court held by him. Sec. 575. When a contempt is committed in the immediate view and presence of the Justice, it may be punished summarily, for which an order shall be made reciting the facts, as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed. When the contempt is not committed in the immediate view and presence of the Justice, a warrant of arrest may be issued by such Justice, on which the person so guilty may be arrested and brought before the Justice immediately, when an opportunity to be heard in his defense or excuse shall be given. |
Same.
Papers, how filled up.
Sickness of Justice, etc.
Special deputation to serve papers.
Authority of the deputation.
Constable to complete execution of process.
Contempt, what acts to constitute.
When and how punished. |
κ1869 Statutes of Nevada, Page 284 (CHAPTER 112)κ
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Conviction, how entered. Subpoenas.
Summons.
Commissions to take depositions.
New trial, for what causes granted.
Application
Appeal, how taken.
Causes to be tried anew.
Justice required to transmit copy of docket, etc. |
defense or excuse shall be given. The Justice may thereupon discharge him, or may convict him of the offense. A Justice may punish for contempts by fine or imprisonment, or both; such fine not to exceed in any case one hundred dollars, and such imprisonment one day. Sec. 576. The conviction, specifying particularly the offense and the judgment thereon, shall be entered by the Justice in his docket. Sec. 577. Justices of the Peace may issue subpoenas in any action or proceeding in the Courts held by them, and final process on any judgment recovered therein, to any part of the county. A Justice of the Peace may issue a summons to any person a resident of his township. precinct or city, to appear before him at his office to act as interpreter in any action or proceeding in his Court. Such summons shall be served and returned in like manner as a subpoena issued by a Justice. Any person so summoned shall, for a failure to attend at the time and place named in the summons, be deemed guilty of a contempt, and may be punished accordingly. Sec. 578. Justices of the Peace may issue commissions to take the depositions of witnesses out of this State, and settle interrogatories to be annexed thereto, and direct the manner in which the commissions shall be returned. The provisions of Title Eleven of this Act, so far as the same are consistent with the jurisdiction and powers of Justices Courts, shall be applicable to Justices Courts, and to actions and proceedings therein, the word Justice being deemed inserted in lieu of Clerk and Judge. wherever the same occurs. Sec. 579. A new trial may be granted by the Justice, on motion, within ten days after the entry of judgment, for any of the following causes: First-Accident or surprise, which ordinary prudence could not have guarded against. Second-Excessive damages, appearing to have been given under the influence of passion; or, Third-Insufficiency of the evidence to justify the verdict or other decision. Fourth-Newly discovered evidence material for the party making the application, which he could not with reasonable diligence have discovered and produced at the time. Sec. 580. The application shall be made upon affidavit and notice. The affidavit shall be filed with the Justice, with a statement of the grounds upon which the party intends to rely. The adverse party may use counter affidavits on the motion, provided they be filed one day previous to the hearing of the motion. Sec. 581. Any party dissatisfied with a judgment rendered in a Justices Court, may appeal therefrom to the District Court for [the] county, any time within thirty days after the rendition of judgment. The appeal shall be taken with the Justice, and serving a copy on the adverse party. Sec. 582. All causes appealed to the District Court shall be tried anew in said Court, and said Court may regulate by rule the practice in such cases, in all respects not provided for by statute. Sec. 583. Upon receiving the notice of appeal, and on payment of the fees of the Justice, and filing an undertaking as required in the next section, the Justice shall, within five days, transmit to the Clerk of the District Court a certified copy of his docket, the pleadings, all notices, motions and other papers filed in the cause, the notice of appeal and undertaking filed; and the Justice may be compelled by the District Court, by an order entered upon motion, to transmit such papers, and may be fined for neglect or refusal to transmit the same. A certified copy of such order may be served on the Justice, by the party or his attorney. |
κ1869 Statutes of Nevada, Page 285 (CHAPTER 112)κ
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certified copy of such order may be served on the Justice, by the party or his attorney. In the District Court, either party shall have the benefit of all legal objections made in the Justices Court. Sec. 584. An appeal from a Justices Court shall not be effectual for any purpose unless an undertaking be filed, within five days after filing the notice of appeal, with two or more sureties, in the sum of one hundred dollars, in gold coin of the United States, for the payment of the costs on the appeal, or if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money, or twice the value of the property, including costs, when the judgment is for the recovery of specific personal property, and shall be to the effect, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from, and all costs if the appeal be withdrawn or dismissed, on [or] the amount of any judgment, and all costs that may be recovered against him in said action in the District Court. When the action is for the recovery of specific personal property, the undertaking shall be to the effect that the appellant will pay the judgment and costs appealed from, and obey the order of the Court made therein, if the appeal be withdrawn or dismissed, or will pay the amount of any judgment and costs which may be recovered against him in said action in the District Court, and will obey any order made by the Court therein. The undertaking shall be accompanied by the affidavits of the sureties that they are residents of the county and are each worth the amount specified in the undertaking over and above all their just debts and liabilities, exclusive of property exempt from execution. The adverse party may, however, except to the sufficiency of the sureties, within two days after the filing of the undertaking, and unless they and other sureties justify before the Justice from whose Court the appeal is taken, within two days thereafter, upon notice to the adverse party, the appeal shall be regarded as if no undertaking had been given. A deposit of the amount of the judgment appealed from, including all costs, or of the value of the property and all costs, in actions for the recovery of specific personal property with the Justice, shall be equivalent to the filing of the undertaking in this section mentioned; and in such cases the Justice shall transmit the money to the Clerk of the District Court, to be by him paid out on the order of the Court; and all such undertakings shall be made payable in the currency in which the judgment appealed from is payable. Sec. 585. If an execution be issued on the filing of the undertaking, staying all proceedings, the Justice shall, by order, direct the officer to stay all proceedings on the same. Such officer shall, upon payment of his fees for services rendered on the execution, thereupon relinquish all property levied upon, and deliver the same to the judgment debtor, together with all moneys collected from sales or otherwise. If his fees be not paid, the officer may retain so much of the property or proceeds thereof, as may be necessary to pay the same. Sec. 586. Costs and necessary disbursements in the action shall be allowed to the prevailing party in a Justices Court. The party in whose favor a judgment is rendered, and who claims his costs, shall file with the Justice, within two days after the verdict or decision of the Court, a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which shall be verified as prescribed in Section Four Hundred and Eighty-six. Sec. 587. Justices of the Peace shall receive from the Sheriff or Constables of their county all moneys collected on any process or order issued by their Courts respectively, |
Appeal made effectual by filing undertaking, etc.
Adverse party may except.
Stay of proceedings.
Costs. |
κ1869 Statutes of Nevada, Page 286 (CHAPTER 112)κ
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Justices required to receive money and pay over.
Deposit of money, etc., for costs. Provisions applicable to Justices Courts.
Rules of Court, how made.
Actions against Sheriff, etc.
Terms explained.
Sureties required to make affidavit. |
Constables of their county all moneys collected on any process or order issued by their Courts respectively, and all moneys paid to them in their official capacity, and shall pay the same over to the parties entitled or authorized to receive them, without delay. For a violation of this section they may be removed from their office, and shall be deemed guilty of a misdemeanor. Sec. 588. Justices of the Peace may in all cases require a deposit of money, or an undertaking, as security for costs of Court, before issuing a summons. Sec. 589. The provisions of Chapter One, Title Ten, and Sections Four Hundred and Ninety-five to Five Hundred and Three, both inclusive, and Five Hundred and Six to Five Hundred and Eight, both inclusive, Title Fifteen of this Act, and the miscellaneous provisions of Title Eighteen, shall be applicable to Justices Courts and actions therein, the word Justice being deemed inserted in lieu of the word Clerk, wherever it occurs.
TITLE XVIII.
Miscellaneous Provisions.
Sec. 590. The Supreme Court may make rules not inconsistent with the Constitution and laws of the State, for its own government and the government of the District Courts; but such rules shall not be in force until thirty days after their adoption and publication. Sec. 591. If an action be brought against a Sheriff for an act done by virtue of his office, and he give written notice thereon to the sureties on any bond of indemnity received by him, the judgment recovered therein shall be conclusive evidence of his right to recover against such sureties, and the Court or Judge in vacation, may, on motion, upon notice of five days, order judgment to be entered up against them for the amount so recovered, including costs. Sec. 592. Words used in this Act in the present tense shall be deemed to include the future as well as the present; words used in the singular number shall be deemed to include the plural, and the plural the singular; writing shall be deemed to include printing or printed paper; oath to include affirmation or declaration; signature or subscription to include mark when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness; the words real estate, or real property, to include mining claims. Whenever the word Territory shall be used, it shall be held to include and apply to the District of Columbia. Sec. 593. In all cases where an undertaking with sureties is required by the provisions of said Act, the Judge, Justice, or Clerk, or other officer taking the same, shall, unless it otherwise provided in said Act, require the sureties to accompany the same with an affidavit that they are each worth the sum specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution; provided, that when the amount specified in an undertaking exceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties. Sec. 594. Writs of certiorari and mandamus may be issued in the cases prescribed by said Act, by a Judge of the Supreme Court or District Court in vacations, and may in the discretion of the Judge issuing the writ be made returnable, and a hearing may be had on the return thereof in vacation. |
κ1869 Statutes of Nevada, Page 287 (CHAPTER 112)κ
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cases prescribed by said Act, by a Judge of the Supreme Court or District Court in vacations, and may in the discretion of the Judge issuing the writ be made returnable, and a hearing may be had on the return thereof in vacation. Sec. 595. Whenever property has been taken by an officer under a writ of attachment in pursuance of the provisions of said Act, and it shall be made to appear satisfactorily to the Court, or a Judge thereof, that the interests of the parties to the action will be sustained by the sale thereof, the Court or Judge may order such property to be sold, in the same manner as property is sold under an execution, and the proceeds to be deposited in Court to abide the judgment in the action. Such order shall be made only upon notice to the adverse party, or his attorney, in case such party has been personally served with a summons in the action. Sec. 596. A copy of any record, document or paper in the custody of a public officer of this State, or of the United States, within this State, certified under the official seal, or verified by the oath of such officer, to be a true, full and correct copy of the original in his custody, may be read in evidence in any action or proceeding in the Courts of this State, in like manner and with the like effect as the original could be if produced. Sec. 597. When two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates, but the judgment in such case shall bind only the joint property of the associates. Sec. 598. A defendant against whom an action is pending upon a contract, or for specific personal property, may at any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon the same contract, or for the same property, upon due notice to such person, and the adverse party, apply to the Court for an order to substitute such person in his place and discharge him from liability to either party, on his depositing in Court the amount claimed on the contract, or delivering the property, or its value, to such person as the Court may direct. and the Court may, in its discretion, make the order. Sec. 599. Any person shall be entitled to intervene in an action who has an interest in the matter in litigation, in the success of either of the parties to the action, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant. Sec. 600. A third person may intervene either before or after issue has been joined in the cause. Sec. 601. The intervention shall be by petition or complaint filed in the Court in which the action is pending; and it must set forth the grounds on which the intervention rests. A copy of the petition or complaint shall be served upon the party or parties to the action against whom anything is demanded, who shall answer it as if it were an original complaint in the action. Sec. 602. The Court shall determine upon the intervention at the same time that the action is decided; if the claim of the party intervening is not sustained he shall pay all costs incurred by the intervention. |
Writs of certiorari, etc., by whom issued.
Sale of property under writ of attachment.
Certified copies of papers, etc., to be evidence.
Copartners, when summoned in common name.
Substitution of real party defendant.
Intervention, when allowed.
Who may intervene.
How and what to set forth.
Court to determine. |
κ1869 Statutes of Nevada, Page 288 (CHAPTER 112)κ
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Action to obtain discovery, etc., allowed. Sureties may be examined under oath.
Act not to interfere with coin basis Act.
Acts repealed. |
ing is not sustained he shall pay all costs incurred by the intervention. Sec. 603. No action to obtain a discovery under oath, in aid of the prosecution or defense of another action or proceeding, shall be allowed. Sec. 604. In all cases not otherwise provided for in this Act, where sureties are required to justify, they shall appear before the officer or person authorized to take the justification, and may be examined under oath by such officer or person and the adverse party touching their qualifications as sureties, which examination shall be reduced to writing and subscribed by the sureties if required. If upon such examination it shall appear to such officer or person that said sureties, or either of them, have the necessary qualifications of such, he shall so indorse upon the statement and cause the same to be filed, and thereupon the justification shall be complete. Sec. 605. Nothing in this Act shall be construed to interfere [with] or affect any of the provisions of an Act entitled An Act to establish the financial transactions of this State upon a coin basis, approved February 2d, 1869; but the public debts therein mentioned shall be paid in the currency prescribed by said Act. Sec. 606. An Act of the Legislature of the late Territory of Nevada entitled An Act to regulate proceedings in civil cases in the Courts of Justice of the Territory of Nevada, passed November Twenty-ninth, Eighteen Hundred and Sixty-one; and an Act of said Legislature entitled An Act to amend an Act to regulate proceedings in the Courts of Justice in this Territory, passed February Twentieth, Eighteen Hundred and Sixty-one; and all Acts and parts of Acts amendatory of or supplementary to said Act of November Twenty-ninth, Eighteen Hundred and Sixty-one, and An Act to regulate the civil jurisdiction and practice in Justices Courts, and to consolidate into one Act former provisions on the subject, approved February Twenty-six, Eighteen Hundred and Sixty-six, and all Acts and parts of Acts in conflict with this Act are hereby repealed, but such repeal shall not invalidate any judgment rendered, or order made, or any proceedings already taken by virtue of said Acts or parts of Acts. |