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7/28/2019 Nevada Reports 1909 (31 Nev.).pdf
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31 Nev. 1, 1 (1909)
RULES OF THE BOARD OF PARDONS.
____________
1. The regular meetings of the board shall be held on the Wednesday after the first
Monday in January, and on the second Monday of July of each year.As amended, January,
1906.
2. Special meetings may be called by the governor at any time when the exigencies of any
case demand it, notice thereof being given to each member of the board.
3. No application for the remission of a fine or forfeiture, or for a commutation ofsentence, or pardon, shall be considered by the board unless presented in the form and manner
required by the law of the state approved February 20, 1875.
4. In every case where the applicant has been confined in the state prison, he or she must
procure a written certificate of his or her conduct during such confinement, from the warden
of said prison, and file the same with the secretary of this board, on or before the day of
hearing.
5. All oral testimony offered upon the hearing of any case must be presented under oath,
unless otherwise directed by a majority of the board.
6. Action by the board upon every case shall be in private, unless otherwise ordered by the
consent of all the members present.
7. After a case has once been acted upon, and the relief asked for has been refused, it shall
not, within twelve months thereafter, be again taken up or considered upon any of the grounds
specified in the application under consideration, except by the consent of a majority of the
members of the board; nor in any case except upon new and regular notice as required by law
in case of original application.
8. In voting upon any application the roll of members shall be called by the secretary of
the board in the following order:
FirstThe Attorney-General.
SecondThe Junior Associate Justice of the Supreme Court.
ThirdThe Senior Associate Justice.
FourthThe Chief Justice.FifthThe Governor.
31 Nev. 1, 2 (1909) Rules of Board of Pardons
Each member, when his name is called, shall declare his vote for or against the
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remission of the fine or forfeiture, commutation of sentence, pardon, or restoration to
citizenship.
9. No document relating to a pending application for pardon or commutation of sentence,
or to a prior application which has been denied, shall be withdrawn from the custody of the
clerk after filing, unless by consent of the board.
10. Application for pardon or commutation of sentence must be filed with the clerk atleast two days before the regular meeting of the board, at which the application is to be
considered.
11. All papers pertaining to applications for pardon, or for restoration to citizenship, must
be properly indorsed before presentation for filing; and the name of the attorney for the
applicant must appear in such indorsement on the petition and notices to the district judge and
district attorney. The indorsement on each paper must begin at the top with Board of
Pardons, and include the name of the document.
12. Attorneys shall first present their evidence through witnesses, affidavits, the record or
documents, and then argue their cases concisely and not exceeding one-half hour for each
counsel appearing, unless additional time be granted by the board, and in the event that an
attorney digresses from the evidence, or states facts not supported thereby, or reiterates in hisargument, he shall be called to order. Papers shall be filed separately, or attached before they
are read in evidence, and shall not be withdrawn without the order of the board or some
member thereof.
13. Upon behalf of an applicant for pardon who has been convicted of felony, evidence of
facts relating to the commission of the crime other than that contained in the record, may be
presented only by witnesses, who know the circumstances, appearing and testifying under
oath, or by depositions or affidavits, copies of which shall have been served upon the district
judge and district attorney of the county in which the indictment was found, at least thirty
days before the hearing, unless, for good cause shown, this time be shortened by the board.
____________
31 Nev. 3, 3 (1909) State Library Regulations
NEVADA STATE LIBRARY.
____________
Sections of the Law Relating to Use of Books.
____________
From Compiled Laws of 1900.
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Sec. 1518. The state librarian shall keep a register of all books, magazines, papers,
pamphlets, maps, charts, and other property added to the library, and of the cost thereof, and
shall stamp the same with the library seal. He shall keep a register of all books taken from the
library, when taken out, by whom, and when returned. He shall not permit any person or
persons, except such as are authorized by law, to take from the library any book, magazine,
paper, or other property belonging thereto.Sec. 1522. Upon assuming the duties of his office the secretary of state, as ex officio state
librarian, shall execute a receipt and deliver the same to the justices of the supreme court for
all books and other property in the state library.
Sec. 1523. All books, maps, and charts, now belonging to, or which may hereafter come
into possession of, this state, by purchase or otherwise; all books, maps, charts, pamphlets,
and other documents, which, by any state officer, may be received in their [his] official
capacity from the general government, or in exchange from other states and territories, or
received from foreign nations, or donated to the state by any person or corporation, shall be
placed in the state library, and shall be carefully preserved by the librarian.
Sec. 1525. Books may be taken from the state library by the members of the legislature
during its session, and at any time by the governor and other officers of the executivedepartment of this state who are required to keep their offices at the seat of government, the
justices of the supreme court, and attorney-general;provided, that no person shall be
permitted to have more than two volumes of miscellaneous works from said library at the
same time.
31 Nev. 3, 4 (1909) State Library Regulations
Sec. 1526. The librarian shall cause to be kept a register of all the books issued and
returned at the time they shall be so issued and returned, and none of the books, except the
laws, journals, and reports of this state, which may be taken from the library by members of
the legislature, during the session, and law books taken by the judges of the supreme court,
shall be retained more than two weeks; and all books taken by the members of the legislature
shall be returned at the close of the session.
Sec. 1527. If any person materially injure, or fail to return, any books taken from the
library within the time prescribed in the foregoing section, he shall forfeit and pay to the
librarian, for the benefit of the library, three times the value thereof, or of the set to which it
belongs.
____________
31 Nev. 5, 5 (1909) Rules of State Library
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RULES OF STATE LIBRARY
____________
The number of users of the library is so small under the law that it has not heretofore beenconsidered necessary by those in charge to publish any rules in addition to those included in
the statute.
The office hours are from 10 to 12 o'clock in the morning, and from 1 to 4 in the
afternoon, on judicial days.
Those using books, except members of the supreme court, are requested notto replace
them on the shelves.
Books are not allowed to be taken beyond the limits of the capital city.
Books of reference, including law and miscellaneous, art works and unbound magazines,
are not to be taken from the library.
The use of the library is extended to attorneys practicing before the supreme and districtcourts, when in the capital city.
____________
31 Nev. 7, 7 (1909) Rules of Supreme Court
RULES
OF THE
Supreme Court of the State of Nevada
Adopted September 1, 1879; as amended to July 7, 1908.
___________
RULE I.
1. Applicants for license to practice as attorneys and counselors will be examined in open
court on the first day of the term.
Examination for Attorneys-at-Law.
2. The supreme court, upon application of the district judge of any judicial district, will
appoint a committee to examine persons applying for admission to practice as attorneys and
counselors-at-law. Such committee will consist of the district judge and at least two attorneys
resident of the district.
The examination by the committee so appointed shall be conducted and certified according
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to the following rules:
Examination by Committee.
The applicant shall be examined by the district judge and at least two others of the
committee, and the questions and answers must be reduced to writing.
No intimation of the questions to be asked must be given to the applicant by any memberof the committee previous to the examination.
Examination to Embrace.
The examination shall embrace the following subjects:
1 The history of this state and of the United States;
2 The constitutional relations of the state and federal governments;
3 The jurisdiction of the various courts of this state and of the United States;
4 The various sources of our municipal law;
5 The general principles of the common law relating to property and personal rights and
obligations; 7KHJHQHUDOJURXQGVRIHTXLW\MXULVGLFWLRQDQGSULQFLSOHVRIHTXLW\MXULVSUXGHQFH
31 Nev. 7, 8 (1909) Rules of Supreme Court
6 The general grounds of equity jurisdiction and principles of equity jurisprudence;
7 Rules and principles of pleadings and evidence;
8 Practice under the civil and criminal codes of Nevada;
9 Remedies in hypothetical cases;
10 The course and duration of the applicant's studies.
3. The examiners will not be expected to go very much at large into the details of these
subjects, but only sufficiently so fairly to test the extent of the applicant's knowledge and the
accuracy of his understanding of those subjects and books which he has studied.
Examination by Committee.
4. When the examination is completed and reduced to writing, the examiners will return it
to this court, accompanied by their certificate showing whether or not the applicant is of good
moral character and has attained his majority, and is a bona fide resident of this state. Such
certificate shall also contain the facts that the applicant was examined in the presence of thecommittee; that he had no knowledge or intimation of the nature of any of the questions to be
propounded to him before the same were asked by the committee, and that the answers to
each and all the questions were taken down as given by the applicant without reference to any
books or other outside aid.
Fee To be Deposited Before Examination.
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5. The fee of thirty-five dollars for license must in all cases be deposited with the clerk of
the court before the application is made, to be returned to the applicant in case of rejection.
RULE II.
Filing Transcript.In all cases where an appeal has been perfected, and the statement settled (if there be one)
thirty days before the commencement of a term, the transcript of the record shall be filed on
or before the first day of such term.
RULE III.
Appeal May Be DismissedCan Be Restored.
1. If the transcript of the record be not filed within the time prescribed by Rule II, the
appeal may be dismissed on motion during the first week of the term, without notice. A cause
so dismissed may be restored during the same term, XSRQJRRGFDXVHVKRZQRQQRWLFHWR
WKHRSSRVLWHSDUW\DQGXQOHVVVRUHVWRUHGWKHGLVPLVVDOVKDOOEHILQDODQGDEDUWRDQ\RWKHUDSSHDOIURPWKHVDPHRUGHURUMXGJPHQW
31 Nev. 7, 9 (1909) Rules of Supreme Court
upon good cause shown, on notice to the opposite party; and, unless so restored, the dismissal
shall be final and a bar to any other appeal from the same order or judgment.
How Restored.
2. On such motion there shall be presented the certificate of the clerk below, under the
seal of the court, certifying the amount or character of the judgment; the date of its rendition;
the fact and date of the filing of the notice of appeal, together with the fact and date of service
thereof on the adverse party, and the character of the evidence by which said service appears;
the face and date of the filing of the undertaking on appeal; and the same is in due form; the
fact and time of the settlement of the statement, if there by one; and also that the appellant has
received a duly certified transcript, or that he has not requested the clerk to certify to a correct
transcript of the record; or, if he has made such request, that he has not paid the fees therefor,
if the same have been demanded.
RULE IV.
Printed Transcripts.
1. All transcripts of record in civil cases, when printed, shall be printed on unruled white
paper, ten inches long by seven inches wide, with a margin on the other edge of not less than
one inch. The printed page shall not be less than seven inches long and three and one-half
inches wide. The folios, embracing ten inches each, shall be numbered from the
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commencement to the end, and the numbering of the folios shall be printed between lines.
Nothing smaller than minion type leaded shall be used in printing.
Transcripts in Criminal Cases.
2. Transcripts in criminal cases may be printed in like manner as prescribed for civil
cases; or, if not printed, shall be written on one side only of transcript paper, sixteen incheslong by ten and one-half inches width, with a margin of not less than one and one-half inches
wide, fastened or bound together on the left sides of the pages by ribbon or tape, so that the
same may be secured, and every part conveniently read. The transcript, if written, shall be in a
fair, legible hand, and each paper or order shall be separately inserted.
To Be Indexed.
3. The pleadings, proceedings, and statement shall be FKURQRORJLFDOO\DUUDQJHGLQWKHWUDQVFULSWDQGHDFKWUDQVFULSWVKDOOEHSUHIDFHGZLWKDQDOSKDEHWLFDOLQGH[VSHFLI\LQJWKHIROLRRIHDFKVHSDUDWHSDSHURUGHURUSURFHHGLQJDQGRIWKHWHVWLPRQ\RIHDFKZLWQHVVDQGWKHWUDQVFULSWVKDOOKDYHDWOHDVWRQHEODQNIO\VKHHWFRYHU
31 Nev. 7, 10 (1909) Rules of Supreme Court
chronologically arranged in the transcript, and each transcript shall be prefaced with an
alphabetical index, specifying the folio of each separate paper, order, or proceeding, and of
the testimony of each witness; and the transcript shall have at least one blank fly-sheet cover.
Cannot Be Filed.
4. No record which fail to conform to these rules shall be received or filed by the clerk of
the court.
RULE V.
Printing Transcripts.
The written transcript in civil causes, together with sufficient funds to pay for the printing
of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof,
shall file the same and cause the transcript to be printed, and to a printed copy shall annex his
certificate that the said printed transcript is a full and correct copy of the transcript furnished
to him by the party; and said certificate shall beprima facie evidence that the same is correct.The said printed copy so certified shall also be filed, and constitute the record of the cause in
this court, subject to be corrected by reference to the written transcript on file.
RULE VI.
Cost of Typewriting or Printing Transcripts.
1. The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on
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appeal in civil causes and pleadings, affidavits, briefs, or other papers constituting the record
in original proceedings upon which the cause is heard in this court, required by these rules to
be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual
mode;provided, that no greater amount than twenty-five cents per folio of one hundred words
shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per
folio for one copy only shall be taxed as costs for typewriting. All other costs to be taxed bythe clerk in accordance with the fee bill.
To Serve Cost Bill, When.
2. Either party desiring to recover as costs his expenses for printing or typewriting in any
cause in this court, shall, before said cause is submitted, file with the clerk and serve upon the
opposite party a verified cost bill, setting forth or VWDWLQJWKHDFWXDOFRVWRIVXFKSULQWLQJRUW\SHZULWLQJDQGQRJUHDWHUDPRXQWWKDQVXFKDFWXDOFRVWVKDOOEHWD[HGDVFRVWV
31 Nev. 7, 11 (1909) Rules of Supreme Court
stating the actual cost of such printing or typewriting, and no greater amount than such actual
cost shall be taxed as costs.
Mode of Objecting to Costs.
3. If either party desires to object to the costs claimed by the opposite party, he shall,
within ten days after the service upon him of a copy of the cost bill, file with the clerk and
serve his objections. Said objections shall be heard and settled and the costs taxed by the
clerk. An appeal may be taken from the decision of the clerk, either by written notice of fivedays, or orally and instanter, to the justices of this court, and the decision of such justices
shall be final. If there be no objections to the costs claimed by the party entitled thereto, they
shall be taxed as claimed in his cost bill.
Indorsed Upon Remittitur.
4. In all cases where a remittitur or other final order is sent to a district court or other
inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed
upon such remittitur or order, and shall be collected as other costs in such district court, or
other inferior court or tribunal, and shall not be subject to retaxation in such district court or
other tribunal.
RULE VII.
To Correct Error in Transcript.
For the purpose of correcting any error or defect in the transcript from the court below,
either party may suggest the same, in writing, to this court, and, upon good cause shown,
obtain an order that the proper clerk certify to the whole or part of the record, as may be
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required, or may produce the same, duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
RULE VIII.
ExceptionsDiminution of Record.
Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of
appeal, or to its service or proof of service, or any technical exception or objection to the
record affecting the right of the appellant to be heard on WKHSRLQWVRIHUURUDVVLJQHGZKLFKPLJKWEHFXUUHGRQVXJJHVWLRQRIGLPLQXWLRQRIWKHUHFRUGPXVWEHWDNHQDWWKHILUVWWHUPDIWHUWKHWUDQVFULSWLVILOHGDQGPXVWEHQRWHGLQWKHZULWWHQRUWKHSULQWHGSRLQWVRIWKHUHVSRQGHQWDQGILOHGDWOHDVWRQHGD\EHIRUHWKHDUJXPHQWRUWKH\ZLOOQRWEHUHJDUGHG
31 Nev. 7, 12 (1909) Rules of Supreme Court
the points of error assigned, which might be curred on suggestion of diminution of the record,
must be taken at the first term after the transcript is filed, and must be noted in the written or
the printed points of the respondent, and filed at least one day before the argument, or they
will not be regarded.
RULE IX.
Substitution in Case of Death.
Upon the death or other disability of a party pending an appeal, his representative shall be
substituted in the suit by suggestion in writing to the court on the part of such representative,
or any party on the record. Upon the entry of such suggestion, an order of substitution shall be
made and the cause shall proceed as in other cases.
RULE X.
Calendar to Consist ofUpon Motion.
1. The calendar of each term shall consist only of those cases in which the transcript shall
have been filed on or before the first day of the term, unless by written consent of the parties;provided, that all cases, both civil and criminal, in which the appeal has been perfected and
the statement settled, as provided in Rule II, and the transcript has not been filed before the
first day of the term, may be placed on the calendar, on motion of either party, after ten days'
written notice of such motion, and upon filing the transcript.
Subdivision 2 is hereby abrogated.
3. Causes shall be placed on the calendar in the order in which the transcripts are filed by
the clerk.
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RULE XI.
Time for Appellant to Serve BriefRespondent.
1. Within fifteen days after the filing of the transcript on appeal in any case, the appellant
shall file and serve his points and authorities or brief; and within fifteen days after the serviceof appellant's points and authorities or brief, respondent shall file and serve his points and
authorities or brief; and within fifteen days thereafter, appellant shall file and serve his points
and authorities or brief in reply, after which the case may be argued orally.
2. The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the point made.
31 Nev. 7, 13 (1909) Rules of Supreme Court
Oral Argument.
3. The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authorities or briefs filed, and a failure by either party to file points and
authorities or briefs under the provisions of this rule and within the time herein provide, shall
be deemed a waiver by such party of the right to orally argue the case, and such party shall
not recover cost for printing or typewriting any brief or points and authorities in the case.
4. No more than two counsel on a side will be heard upon the oral argument, except by
special permission of the court, but each defendant who has appeared separately in the court
below may be heard through his own counsel.
Optional in Criminal Cases.5. In criminal cases it is left optional with counsel either to file written, printed, or
typewritten points and authorities or briefs.
When Submitted.
6. When the oral argument is concluded, the case shall be submitted for the decision of
the court.
Stipulation as to Time.
7. The times herein provided for may be shortened or extended by stipulation of parties or
order of court, or a justice thereof.
RULE XII.
Printing and Paper To Be Uniform.
In all cases where a paper or document is required by these rules to be printed, it shall be
printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
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RULE XIII.
Number of Copies To Be Filed.
Besides the original, there shall be filed ten copies of the transcript, briefs, and points and
authorities, which copies shall be distributed by the clerk.
RULE XIV.
Opinions Recorded.
All opinions delivered by the court, after having been finally corrected, shall be recorded
by the clerk.
31 Nev. 7, 14 (1909) Rules of Supreme Court
RULE XV.
RehearingRemittitur to Issue, WhenTime May Be Shortened or Extended.
All motions for a rehearing shall be upon petition in writing, and filed with the clerk
within fifteen days after the final judgment is rendered, or order made by the court, and
publication of its opinion and decision. Personal service or service by mail upon counsel of a
copy of the opinion and decision shall be deemed the equivalent of publication. The party
moving for a rehearing shall serve a copy of the petition upon opposing counsel, who within
ten days thereafter may file a reply to the petition, and no other argument shall be heard
thereon. No remittitur or mandate to the court below shall be issued until the expiration of thefifteen days herein provided, and decisions upon the petition, except upon special order. The
times herein provided for may be shortened or extended, for good cause shown, by order of
court.
RULE XVI.
Opinion To Be Transmitted.
Where a judgment is reversed or modified, a certified copy of the opinion in the case shall
be transmitted, with the remittitur, to the court below.
RULE XVII.
No Paper To Be Taken Without Order.
No paper shall be taken from the court room or clerk's office, except by order of the court,
or of one of the justices. No order will be made for leave to withdraw a transcript for
examination, except upon written consent to be filed with the clerk.
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RULE XVIII.
Writ of Error, or Certiorari.
No writ of error or certiorari shall be issued, except upon order of the court, upon petition,
showing a proper case for issuing the same.
RULE XIX.
Writ of Error to Operate as Supersedeas.
Where a writ of error is issued, upon filing the same and a sufficient bond or undertaking
with the clerk of the court below, and upon giving notice thereof to the opposite party or his
attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall be
substantially the same as required in cases on appeal.
31 Nev. 7, 15 (1909) Rules of Supreme Court
RULE XX.
When Returnable.
The writ of error shall be returnable within thirty days, unless otherwise specially directed.
RULE XXI.
To Apply.
The rules and practice of this court respecting appeals shall apply, so far as the same maybe applicable, to proceedings upon a writ of error.
RULE XXII.
Time Concerning Writ.
The writ shall not be allowed after the lapse of one year from the date of the judgment,
order, or decree which is sought to be reviewed, except under special circumstances.
RULE XXIII.
Concerning Change of VenueAdditional Notice Given.
Appeals from orders granting or denying a change of venue, or any other interlocutory
order made before trial, will be heard at any regular or adjourned term, upon three days'
notice being given by either appellant or respondent, when the parties live within twenty
miles from Carson. When the party served resides more than twenty miles from Carson, an
additional day's notice will be required for each fifty miles, or fraction of fifty miles, from
Carson.
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RULE XXIV.
Notice of Motion.
In all cases where notice of a motion is necessary, unless, for good cause shown, the time
is shortened by an order of one of the justices, the notice shall be five days.
RULE XXV.
Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.
1. Hereafter all transcripts of the record in any action or proceeding may be typewritten.
The typewriting shall be the first impression, clearly and legibly done, with best quality of
black ink, in type not smaller than small pica, upon a good quality of typewriting paper,
thirteen inches long by eight inches wide, bound in boards with flexible backs, in volumes of
a size suitable for convenient handling and ready reference, and arranged and indexed as
required by the rules of this court. When so typewritten such transcript, in the GLVFUHWLRQRI
WKHSDUW\DSSHDOLQJQHHGQRWEHSULQWHGEXWLISULQWHGDOOWKHUXOHVFRQFHUQLQJWKHVDPHVKDOOVWLOODSSO\WKHUHWR
31 Nev. 7, 16 (1909) Rules of Supreme Court
discretion of the party appealing, need not be printed, but, if printed, all the rules concerning
the same shall still apply thereto.
Briefs May Be Typewritten.
2. Briefs and points and authorities, instead of being printed, may be typewritten upon the
same paper and in the same style and form as is prescribed for typewritten transcripts.
Copy To Be ServedTwo Copies To Be Filed.
3. When so typewritten, but one copy of such transcript need be filed in the case; but a
copy thereof shall be served upon the opposite party. Two copies of the briefs and points and
authoritiesviz., the first impression and a copy thereofshall be filed with the clerk, and a
copy shall be served upon each opposite party who appeared separately in the court below.
RULE XXVI.
Concerning Certificate of Naturalization.
Under no circumstances shall this court, or any of the district courts of the State of
Nevada, hear proof for the issuance of, or issue, final papers or certificates of naturalization to
any applicant therefor, at any time within the sixty days immediately preceding any general or
special state election of this state.
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RULE XXVII.
Payment of Advance Fee RequiredClerk Prohibited from Filing.
No transcript or original record shall be filed or cause registered, docketed, or entered until
an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of
suit. The clerk of the court is prohibited from filing or registering any record without firsthaving received as a deposit the aforesaid fee.
____________
31 Nev. 17, 17 (1909) Rules of District Court
RULES
OF THE
District Court of the State of Nevada
___________
RULE I.
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.
RULE II.
Calendars to ContainAttorneys.
The clerk of each county of the state shall make three calendars for the district court of his
county, upon one of which he shall place all civil causes at issue upon questions of fact as
soon as the issue is made; upon another of which he shall place all civil causes at issue upon a
question of law, and all motions of every nature, except ex parte motions, as soon as the issue
is made, or as soon as notice of motion is filed; and upon the third of which he shall place all
criminal business of every kind. The names of the attorneys of the respective parties shall be
appropriately placed on such calendars. The clerk shall, on every Saturday, forward to the
presiding judge of the court, and also to the judge who is to sit in his county, a full statement
of the condition of the business of the court as shown by the calendars.
RULE III.
Notice as to Time.
The judge who is to hold court in any county shall give the clerk of such county notice of
the time when court will sit. The clerk shall, immediately upon receiving such notice, give all
the attorneys having business in said court, as shown by the calendar, and also all attorneys
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practicing in his county, notice in writing of the time when court will be held. He shall also
give notice of the time of holding court, in some newspaper printed and published at the
county-seat of his county, provided it can be done without expense.
31 Nev. 17, 18 (1909) Rules of District Court
RULE IV.
When Calendar CalledOrder.
Upon the meeting of the court, as provided in Rule III, the law calendar will first be called
and disposed of. The trial calendar will then be called, and causes at issue upon questions of
fact disposed of. When the calendar is called the causes will be set for a time certain. Parties
are expected to be ready to try their causes, whether at issue upon questions of law or fact,
when the calendar is called, and in the order in which they are set. Parties may, prior to the
meeting of the court, fix the day of trial by stipulation in writing, subject to the approval of
the court or judge. The daily business of the court will be disposed of in the following order:
FirstThe minutes of the previous day's business shall be read, approved, and signed by
the judge.
SecondEx parte motions.
ThirdProbate business, when there is no contest.
FourthIssues arising subsequent to the calling of the calendar shall be set.
FifthTrial of causes, as previously set.
SixthQuestions of law.
RULE V.Law Day.
On each Saturday of any session of court held by any district judge, law questions shall
take precedence, and be heard without previous setting or notice.
RULE VI.
Relating to Motions.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
RULE VII.
Issues of LawDecision.
Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation
of the parties, at any time or place agreed on in the state, with the consent of the judge first
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having jurisdiction of the cause, or such questions of law, or motions, as the case may be,
may be submitted on briefs of such judge, with his consent, and the decision may be filedWKHUHDIWHUDWDQ\WLPHZKLFKGHFLVLRQVKDOOIL[WKHWLPHZKHQWKHGHFLVLRQRIWKHFRXUWLVWREHFRPSOLHGZLWKDQGLQDOOVXFKFDVHVWKHSDUW\ZKRLVUHTXLUHGWRDFWE\VXFK
GHFLVLRQVKDOOUHFHLYHGXHZULWWHQQRWLFHWKHUHRIIURPWKHRSSRVLWHSDUW\
31 Nev. 17, 19 (1909) Rules of District Court
thereafter at any time, which decision shall fix the time when the decision of the court is to be
complied with; and in all such cases the party who is required to act by such decision shall
receive due written notice thereof from the opposite party. Time for complying with such
decision shall commence to run from the time when service is made in the manner required
by the statutes for service of pleadings in a case;provided, that when the parties are present
by their respective attorneys when the decision is rendered, no notice shall be required.
RULE VIII.
DemurrerSet Down for Trial.
When a demurrer is interposed in any case, if it be made to appear to the satisfaction of the
court that such demurrer has not been interposed in good faith, but merely for delay, the
defendant shall only answer upon such terms as the court may prescribe, and, upon the filing
of the answer, the case shall be set down for trial for as early a day as the business of the court
will permit. In cases other than those above mentioned, ten days shall be allowed to amend or
plead, as the case may be, unless the court by its order fix a different time.
RULE IX.
Documents and Pleadings.
All documents and pleadings, intended for the files of this court, shall be on paper known
as legal cap, of good quality, and without interlineations, unless noted thereon by the clerk
at the time of filing. No original pleading or paper shall be amended by making erasures or
interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all
papers issued from this court, or to be used therein, which are required by law or rule of court
to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the
party failing shall be compelled to renew the paper, or be precluded from using the original,
as the court may deem proper.
RULE X.
Motions.
Motions in all cases, except ex parte motions, motions for continuance, and motions to
amend pleadings pending a trial, shall be noticed at least five days before the day specified
for a hearing, and a copy of all papers to be used by the moving SDUW\H[FHSWSOHDGLQJVRU
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RWKHUUHFRUGVRIWKHFRXUWVKDOOEHVHUYHGZLWKWKHQRWLFHRIPRWLRQ
31 Nev. 17, 20 (1909) Rules of District Court
party, except pleadings or other records of the court, shall be served with the notice of
motion. The notice of motion shall be in writing, and shall specify the papers to be used and
the names of witnesses to be examined by the moving party, and the grounds upon which the
motion is made;provided, that the court may, upon good cause shown, shorten or enlarge the
time for hearing. For a failure to comply with this rule the motion shall be denied.
RULE XI.
Hearing of Motions.
Upon reading and filing the notice of motion, with due proof of service of the same, and of
the papers mentioned therein, if no one appears to oppose the motion, the moving party shall
be entitled to have the motion decided. Upon the hearing, the affidavits to be used by either
party shall be endorsed and filed before the affidavits shall be used. The manner of making
motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof, or
introduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing papers,
or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, if
admissible under the rules of practice in law or equity. The counsel for the moving party shall
make his argument, to be followed by the counsel of the opposing party, and the counsel forthe moving party may reply.
RULE XII.
Hearing of Motions of ContinuanceTestimony of AbsenteesCounter Affidavit.
All motions for the continuance of causes shall be made on affidavit; and, when made on
the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding place, if
known.
SecondWhat diligence has been used to procure their attendance, or depositions, and the
causes of a failure to procure the same.
ThirdWhat the affiant has been informed and believes will be the testimony of each of
such absent witnesses, and whether or not the same facts can be proven by other witQHVVHVWKDQSDUWLHVWRWKHVXLWZKRVHDWWHQGDQFHRUGHSRVLWLRQVPLJKWKDYHEHHQREWDLQHG
31 Nev. 17, 21 (1909) Rules of District Court
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nesses than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of such
absent witnesses could not be obtained.
FifthThat the application is made in good faith, and not for delay merely. And no
continuance will be granted unless the affidavit upon which it is applied for conforms to this
rule, except where the continuance is applied for in a mining case, upon the special ground
provided by statute. A copy of the affidavits upon which a motion for a continuance is made,
shall be served upon the opposing party as soon as practicable after the cause for the
continuance shall be known to the moving party. Counter-affidavits may be used in
opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
RULE XIII.
Attorneys as Witnesses.
If the attorney or counsel of either party offers himself as a witness on behalf of his client,
and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up to the
jury, without the permission of the court.
RULE XIV.
Sureties.
No attorney will be received as surety on any bond or recognizance to be filed or entered
into in any action or proceeding in this court.
RULE XV.
DepositionsInterrogatories, How Settled.
A party making application for a commission to take the deposition of a witness out of the
state, shall serve, with the notice of such application, a copy of the direct interrogatories; and,
at least one day before the hearing of the application, the adverse party shall serve upon the
moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall be
settled at the time of hearing the application, unless the court or judge otherwise direct;
provided, that parties may agree to the interrogatories without VXEPLVVLRQWRWKHFRXUWRU
MXGJHRUPD\VWLSXODWHWKDWWKHGHSRVLWLRQVPD\EHWDNHQZLWKRXWZULWWHQLQWHUURJDWRULHV
31 Nev. 17, 22 (1909) Rules of District Court
submission to the court or judge, or may stipulate that the depositions may be taken without
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written interrogatories.
RULE XVI.
Depositions.
When a deposition is received by the clerk, he shall endorse upon the envelope the time ofreceiving it, and immediately file it with the papers of the case in which it was taken; and at
any time afterward, upon the application of any attorney in the case, he shall open the same,
and endorse upon the envelope the time of opening, and the name of the attorney upon whose
application it was opened, and shall then file the deposition.
RULE XVII.
Amended Pleadings.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
RULE XVIII.
To Strike Out.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
RULE XIX.
Withdrawal of Papers.
No paper or record belonging to the files of the court shall be taken from the office and
custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
RULE XX.
Additional UndertakingAttachments.If the undertaking required before issuing a writ of attachment is shown to the satisfaction
of the court or judge, upon proper notice, to be insufficient to secure the party whose property
is attached, against damages, the court or judge may UHTXLUHDQDGGLWLRQDOXQGHUWDNLQJWREHILOHGDQGLIQRWILOHGWKHDWWDFKPHQWVKDOOEHGLVVROYHG
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31 Nev. 17, 23 (1909) Rules of District Court
require an additional undertaking to be filed, and if not filed, the attachment shall be
dissolved. No attachment shall be dissolved by reason of any defect in the attachment papers
that can be amended without affecting the substantial rights of the parties.
RULE XXI.
Trials.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
RULE XXII.
AppealsCertificate of Appeal to StateSupersedeas.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall
stay all further proceedings in the court below, upon the judgment or order appealed from, or
upon the matter embraced therein; and if an execution or other order shall have been issued to
the sheriff, coroner, or elisor, he shall return the same, with the cause therefor, and his
proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, under
the seal of the court, of the perfecting of the appeal. The certificate shall state the title of the
action, the filing and service of the notice of appeal and the date of such filing and service,
together with the filing and approval of the undertaking staying all proceedings, and the date
of such filing and approval; and such certificate shall operate as a supersedeas of theexecution, or a vacation of the order.
RULE XXIII.
Foreclosing MortgageService by Publication.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrancers of the mortgaged premises, and to examine and UHSRUWZKHWKHUWKHPRUWJDJHVSUHPLVHVFDQEHVROGLQSDUFHOVLIWKHZKROHDPRXQWVHFXUHGE\WKHPRUWJDJHKDVQRWEHFRPHGXH
31 Nev. 17, 24 (1909) Rules of District Court
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report whether the mortgages premises can be sold in parcels, if the whole amount secured by
the mortgage has not become due. If any of the defendants have been served by publication,
the order of reference shall also direct the referee to take proof of the facts and circumstances
stated in the complaint, and to examine the plaintiff, or his agent, on oath, as to any payments
which have been made, and to compute the amount due on the mortgage, preparatory to the
application for decree of foreclosure.
RULE XXIV.
Further Time.
When an order shall be made enlarging the time to file a statement or affidavits on motion
for new trial, the adverse party shall have the same number of days to propose amendments or
file counter-affidavits as was allowed by such order to file such statement or affidavits.
RULE XXV.
Settled by Referee.When a motion for a new trial is made in a cause tried before a referee, the statement shall
be settled by the referee.
RULE XXVI.
UndertakingsStay of ExecutionCertificate to State.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or debt, orperformance of the act directed by the judgment or order, in such amount as may be fixed by
the judge. An order to stay execution, or other proceedings in an action, shall be of no effect
until a copy of notice thereof is served upon the opposite party, or his attorney, and any other
party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be
present at the time of making such order. And if an execution or other order shall have been
issued to the sheriff, coroner, elisor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder endorsed thereon, upon receiving from the clerk a
certificate, under the seal of the court, of the granting of the stay of execution or other
proFHHGLQJV
31 Nev. 17, 25 (1909) Rules of District Court
ceedings. The certificate shall state the title of the action, the order staying the execution or
other proceedings, and the date of such order, together with the filing and approval of the
undertaking above required, and the date of such filing and approval; and such certificate
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shall operate as a supersedeas of the execution or a vacation of the order.
RULE XXVII.
Stipulations.
No agreement or stipulation between the parties in a cause, or their attorneys, in respect tothe proceedings therein, will be regarded, unless the same shall be entered in the minutes in
the form of an order, by consent, or unless the same shall be in writing, subscribed by the
party against whom the same shall be alleged, or by his attorney or counsel.
RULE XXVIII.
Juror, How Excused.
No juror shall be excused except in open court; and when a juror is excused, the clerk shall
immediately withdraw his name from the box for the period for which he has been excused.
RULE XXIX.
Guardians.
No person shall be appointed guardian ad litem, except upon the application of the infant
or otherwise, unless he be the general guardian of the infant, or an attorney or other officer of
this court, or is fully competent to understand and protect the rights of the infant; has no
interest adverse to that of the infant, and is not connected in business with the attorney or
counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the
infant for any damage which may be sustained for his negligence or misconduct in defense of
the suit.
RULE XXX.
Attorneys as Guardians Ad Litem.
Every attorney, or officer of this court, shall act as guardian of an infant defendant,
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case, so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
31 Nev. 17, 26 (1909) Rules of District Court
RULE XXXI.
Guardians Ad Litem.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or money,
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with two sureties, who shall justify as in other cases, approved by the judge and filed by the
clerk, conditioned for the faithful discharge of his trust.
RULE XXXII.
To Furnish to the Clerk.The counsel obtaining any order, judgment, or decree, shall furnish the form of the same to
the clerk.
RULE XXXIII.
To Be Filed.
The sheriff shall file with the clerk the affidavit and order on which any arrest is made,
within five days after such arrest is made.
RULE XXXIV.
Retax Costs.
The party against whom judgment is entered shall have two days after service of a copy of
the cost bill in which to move to retax costs.
RULE XXXV.
Mechanics' Liens.
In actions to enforce mechanics' liens, other lienholders coming in under the notice
published by the plaintiff shall do so by filing with the clerk and serving on the plaintiff, and
also on the defendant, if he be within the state, or be represented by counsel, a writtenstatement of the facts constituting their liens, together with the dates and amounts thereof,
and the plaintiff and other parties adversely interested shall be allowed five days to answer
such statements.
RULE XXXVI.
Motions.
No motion once heard and disposed of shall be renewed in the same cause, nor shall the
same matters therein embraced be reheard, unless by leave of the court granted upon motion
therefor, after notice of such motion to the adverse parties.
RULE XXXVII.
Appeal from Justices' CourtDismissed, When.
When an appeal from the justices' court to this court has been perfected, and the papers are
not filed in this court ZLWKLQILIWHHQGD\VIURPWKHGD\RIILOLQJWKHXQGHUWDNLQJRQDSSHDOWKLVFRXUWRQWKHSURGXFWLRQRIDFHUWLILFDWHIURPWKHMXVWLFHWRWKHHIIHFWWKDWDQDSSHDOKDVEHHQWDNHQDQGSHUIHFWHGEXWWKHSDSHUVKDYHQRWEHHQRUGHUHGXSRUWKHSURSHU
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FRVWVQRWSDLGRUXSRQVKRZLQJWKDWDQ\RWKHUQHFHVVDU\VWHSVKDYHQRWEHHQWDNHQVKDOOGLVPLVVWKHDSSHDODWWKHFRVWRIWKHDSSHOODQW
31 Nev. 17, 27 (1909) Rules of District Court
within fifteen days from the day of filing the undertaking on appeal, this court, on the
production of a certificate from the justice to the effect that an appeal has been taken and
perfected, but the papers have not been ordered up, or the proper costs not paid, or upon
showing that any other necessary steps have not been taken, shall dismiss the appeal at the
cost of the appellant.
RULE XXXVIII.
Appeal Dismissed, When.The plaintiff shall cause the papers in a case certified to this court under the provisions of
the 539th section of the practice act, to be filed in the office of the clerk of this court within
fifteen days from the day upon which the order of the justice is made directing the transfer of
the case. If the papers are not so filed the case shall be dismissed, upon filing a certificate
from the justice to the effect that he has certified the papers as required by said section, but
that the same have not been ordered up, or the proper costs paid; or if it shall appear that such
papers are not filed in this court by reason of the neglect of the plaintiff to pay the fees of the
clerk for filing the same.
RULE XXXIX.
Duties of Sheriff.
During the time the court remains in session it shall be the duty of the sheriff in attendance
to prevent all persons from coming within the bar, except officers of the court, attorneys and
parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall
also keep the passage way to the bar clear for ingress or egress.
RULE XL.
Instructions To Be Settled, When.
Before the argument begins, counsel shall prepare their instructions, submit them to theinspection of the opposite party, and then deliver them to the court. The court will hear
objections to instructions, and will, when practicable, settle the instructions in advance of the
agreement, and permit counsel to use them when addressing the jury.
RULE XLI.
Trials.
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When any district judge shall have entered upon the trial or hearing of any cause or
proceeding, demurrer or motion, RUPDGHDQ\UXOLQJRUGHURUGHFLVLRQWKHUHLQQRRWKHUMXGJHVKDOOGRDQ\DFWRUWKLQJLQRUDERXWVDLGFDXVHSURFHHGLQJGHPXUUHURUPRWLRQXQOHVVXSRQWKHZULWWHQUHTXHVWRIWKHMXGJHZKRVKDOOKDYHILUVWHQWHUHGXSRQWKHWULDORUKHDULQJRIVDLGFDXVHSURFHHGLQJGHPXUUHURUPRWLRQ
31 Nev. 17, 28 (1909) Rules of District Court
or made any ruling, order or decision therein, no other judge shall do any act or thing in or
about said cause, proceeding, demurrer or motion, unless upon the written request of the
judge who shall have first entered upon the trial or hearing of said cause, proceeding,
demurrer or motion.
RULE XLII.
Writs.
When an application or petition for any writ, rule or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
RULE XLIII.
Duties of Judge.
No judge, except the judge having charge of the cause or proceeding, shall grant further
time to plead, move, or do any act or thing required to be done in any cause or proceeding,
unless it be shown by affidavit that such judge is absent from the state, or from some other
cause is unable to act.
RULE XLIV.
Causes Certified by State Land Register.
When a cause shall have been certified by the state land register to the district court for
trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such
certification, to file and serve upon the adverse party a complaint setting forth the facts uponwhich he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the facts
upon which he relies.
RULE XLV.
Vacating Judgments, Orders, Etc.Time to Amend.
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No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
31 Nev. 17, 29 (1909) Rules of District Court
To the Honorable Judges of the District Court of the State of Nevada:
Your Committee appointed to prepare Rules of Court submit for your approval and
adoption the foregoing rules, forty-five in number.
TRENMOR COFFIN,
ROBT. M. CLARKE,
R. H. LINDSAY,
W. E. F. DEAL,
H. F. BARTINE,
Committee.
Attest: James D. Torreyson, Secretary.
____________
It is hereby ordered that the foregoing rules, forty-five in number, be and they are hereby
adopted as the Rules of Practice of the District Court of the State of Nevada, and that they be
in force in each county thirty days after the date of their filing in the clerk's office of suchcounties.
RICHARD RISING,
Presiding District Judge.
R. R. BIGELOW,
A. L. FITZGERALD,
District Judges.
____________
31 Nev. 43, 43 (1909)
REPORTS OF CASES
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DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1909
____________
31 Nev. 43, 43 (1909) Ex Parte Pittman
[No. 1795]
Ex Parte PITTMAN
1. Banks and BankingRight to Engage in Business.
Banking is a lawful business, in which it is the inherent right of every citizen to engage.
2. Banks and BankingRegulationsLegislative Power.
The banking business can be regulated, but not prohibited, and it is not only the legislature's power, but
its duty, to regulate the business so as to reduce failures to a minimum.
3. Banks and BankingInsolvent BanksReceipt of DepositsPenaltyPurpose.
The purpose of statutes making it a crime to receive deposits when a bank is known to be insolvent is not
only to protect innocent depositors, but to deter bank officers from so conducting a bank as to endanger its
solvency.
4. EmbezzlementBanks.
Prior to the act of March 29, 1907, making it a crime to receive deposits when the bank is known to be
insolvent, the general laws, making it a crime for any one to wrongfully convert property of another to his
own use, applied to bank offices who embezzled bank funds, the same as other embezzlers.
5. StatutesConstructionJudicial Function.
A court has no legislative powers, and cannot read into a statute something beyond the manifest intention
of the legislature as gathered from the statute; its function being to determine the legislature's intention
from the language used in accordance with the established rules of statutory construction.
31 Nev. 43, 44 (1909) Ex Parte Pittman
6. Banks and BankingInsolvent BanksReceipt of DepositsLegislative Power.
The legislature as an exercise of police power can impose a penalty for the conduct of business by an
insolvent bank.
7. StatutesPenal StatutesSpecial Laws.
The act of March 29, 1907, making it a crime to receive bank deposits knowing the bank to be insolvent,
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is not unconstitutional, as being a special law for the punishment of offenses.
8. Constitutional LawClass Legislation.
Neither is the law objectionable as class legislation.
Original proceeding. Application by W. B. Pittman, on behalf of T. B. Rickey, for a writ of
habeas corpus.Prisoner remanded.
Statement of Facts
This is an original proceeding in habeas corpus. The writ in this case was heretofore
issued upon a duly verified petition in behalf of T. B. Rickey, alleging that he was unlawfully
confined and restrained of his liberty by the sheriff of Ormsby County. From the return upon
the writ it appears that the said T. B. Rickey was at the time of its issuance held in custody by
said sheriff upon bench warrants regularly issued by the First Judicial District Court of the
State of Nevada, in and for Ormsby County, upon seven indictments found by the grand jury
of said county, six of which having been found on the 27th day of February, 1908, and one
thereof having been found on the 3d of March following; that all of said indictments chargedthe said T. B. Rickey with the crime of embezzlement contrary to the provisions of that
certain act of the legislature of this state entitled An act making any banker, or any officer,
agent, or clerk of any bank, receiving deposits, knowing that said bank is insolvent, guilty of
embezzlement, and providing for the punishment thereof, approved March 29, 1907. (Stats.
1907, p. 414, c. 189.)
This case was heretofore orally argued and thereafter finally submitted on briefs, together
with Cases Nos. 1781 and 1790, on the 17th day of December, 1908.
Petitioner's contention in this case is that the said T. B. Rickey was unlawfully restrained
of his liberty for the reason that the said act, for the violation of which said indictments were
found, is in contravention of the State and Federal ConVWLWXWLRQVDQGLVYRLGDQGKHQFHWKDWKHLVQRWFKDUJHGZLWKDQRIIHQVHDJDLQVWWKHODZ
31 Nev. 43, 45 (1909) Ex Parte Pittman
stitutions, and is void, and hence that he is not charged with an offense against the law.
The above-entitled statute contains two sections reading as follows:
Section 1. Every officer, agent, teller, or clerk of any bank, and every individual banker,
or agent, teller or clerk of any individual banker, who receives any deposits, knowing that
such bank or association or banker is insolvent, shall be guilty of embezzlement.
Sec. 2. Every person, officer, agent, teller or clerk convicted under the provisions of this
act shall be imprisoned in the state prison for not less than one or more than fifteen years.
James F. Peckand W. B. Pittman, for Petitioner:
I. The act of March 27, 1907, is unconstitutional, null and void, in that it violates the
provisions of the fourteenth amendment to the Constitution of the United States, wherein it is
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provided: No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States, nor shall any state deprive any person of life,
liberty or property without due process of law, nor deny to any person within its jurisdiction
the equal protection of the laws.
II. The said statute is unconstitutional, null and void, in that it violates the provisions of
article IV, section 20, of the Constitution of the State of Nevada, wherein it is provided: Thelegislature shall not pass local or special laws for the punishment of crimes or
misdemeanors.
III. Said statute is unconstitutional, null and void, in that it violates the provisions of article
IV, section 2, of the Constitution of the State of Nevada, wherein it is provided: In all cases
enumerated in the preceding section, and in all other cases where a general law can be made
applicable, all laws shall be general and of uniform operation throughout the state.
IV. The said statute is unconstitutional, null and void, in that it violates the provisions of
article IV, section 17, of the Constitution of the State of Nevada, wherein it is proYLGHG(DFKODZHQDFWHGE\WKHOHJLVODWXUHVKDOOHPEUDFHEXWRQHVXEMHFWDQGPDWWHUVSURSHUO\
FRQQHFWHGWKHUHZLWKZKLFKVXEMHFWVKDOOEHEULHIO\H[SUHVVHGLQWKHWLWOH
31 Nev. 43, 46 (1909) Ex Parte Pittman
vided: Each law enacted by the legislature shall embrace but one subject and matters
properly connected therewith, which subject shall be briefly expressed in the title.
V. Said statute is unconstitutional, null and void, in that it violates the provisions of article
I, section 8, of the Constitution of the State of Nevada, wherein it is provided: No person
* * * shall be deprived of life, liberty or property without due process of law.
VI. Said statute is unconstitutional, null and void, in that it violates the provisions of
article I, section 14, of the Constitution of the State of Nevada, wherein it is provided: Thereshall be no imprisonment for debt except in cases of fraud, libel or slander.
VII. Said statute violates the said provisions of the United States Constitution hereinbefore
specified, in that it makes a crime of the doing of an act which it is the right of every citizen
of the United States to do when the act is done without the accompaniment of fraud, intent to
defraud, or criminal negligence, and said statute does not require fraud, or the intent to
defraud, or criminal negligence as an element of said crime; and in that it prohibits the doing
of the acts specified in said statute when done by an officer, agent, teller, or clerk of any bank,
and every individual banker or agent, teller, or clerk of any individual banker, while all other
persons can do the acts therein prohibited.
VIII. The said statute violates the said provisions of article IV, section 2, of theConstitution of the State of Nevada, in this, that the acts prohibited by said statute are such
acts as may be committed by other persons with the same degree of turpitude as by the
persons enumerated in said statute, and a general law could be made applicable to prohibit the
said acts.
IX. Said statute violates the said provisions of article IV, section 20, of the Constitution of
the State of Nevada, in this, that it provides a special punishment for the crime of
embezzlement by the persons enumerated in said statute, when, at the same time, the general
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law of the State of Nevada provides for the punishment of embezzlement when committed by
other persons, which general law provides a different punLVKPHQWIURPWKDWSURYLGHGLQVDLGVWDWXWHDQGLQWKDWWKHVDLGVWDWXWHSURYLGHVDSXQLVKPHQWZKHQWKHDFWVVSHFLILHGLQVDLGVWDWXWHDUHGRQHE\WKHSHUVRQVWKHUHLQHQXPHUDWHGDQGGRHVQRWSURYLGHDSXQLVKPHQWIRUWKHVDPHDFWVZKHQGRQHE\DQ\RWKHUSHUVRQRUSHUVRQVWKDQWKRVHVRHQXPHUDWHG
31 Nev. 43, 47 (1909) Ex Parte Pittman
ishment from that provided in said statute; and in that the said statute provides a punishment
when the acts specified in said statute are done by the persons therein enumerated, and does
not provide a punishment for the same acts when done by any other person or persons than
those so enumerated.
R. C. Stoddard, Attorney-General,L. B. Fowler, Deputy Attorney-General, P. A.
McCarran, andE. E. Roberts, District Attorneys, for the State.
By the Court, Norcross, C. J.:
Counsel for petitioner in their brief say: In presenting the constitutional questions we will
follow these lines: That the business of banking, including the contract with depositors of the
bank for every nature of deposits, is a lawful business, in which it is the inherent right of
every citizen to engage; that the legislature can only regulate such a business, or the making
of such a contract in the absence of fraud or turpitude; that its power to prohibit commences
and ends with the fraud or turpitude; that the statute of Nevada prohibiting the receipt of
deposits is not predicated upon fraud, and it therefore prohibits an act which it is the inherent
right of every person to do; that the court has not power to read into the statute the element of
fraud, which must be read into the statute to sustain its constitutionality; that if the court can
read into the statute the element of fraud, to wit, a false pretense, then the statute violates the
provisions of the Constitution of Nevada, inhibiting any special law for the punishment of
crimes or misdemeanors; that the statute is class legislation and denies the equal protection of
the laws; that the law is a special law, under the Constitution of Nevada, in a case where a
general law could be made applicable.
That the business of banking is a lawful business in which it is the inherent right of every
citizen to engage will not be questioned. It is a business, however, with which the general
public welfare is most clearly identified. Money is said to be the very life-blood of the nation.
The banking business has grown to be a part and parcel of our financial system, and is soregarded by both the federal and state governments. The JUHDWEXONRIEXVLQHVVWUDQVDFWLRQVLQVWHDGRIEHLQJHIIHFWHGE\DQDFWXDOWUDQVIHURIPRQH\LVDFFRPSOLVKHGWKURXJKWKH
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31 Nev. 43, 48 (1909) Ex Parte Pittman
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bank is in an insolvent condition. The purpose of these penal statutes is not only to protect
innocent depositors, but to deter banking officials from so conducting the business of the
bank as to endanger its solvency. These statutes vary in form and effect in different states, but
their purpose is the same. Prior to the act of 1907, supra (Stats. 1907, p. 414, c. 189), this
state had no legislation of this character; the general laws making it a crime for any one to
wrongfully convert to his own use the property of another applied to bank officials whoembezzled bank funds, the same as they did to any person who might embezzle property or
funds of another. Not until this act, however, was it attempted to make it an offense for an
owner, officer, or employee of a bank to receive a deposit into an insolvent bank, he knowing
it at the time to be insolvent. Under the provisions of this act, although the official receiving
the deposit may have no interest whatever in the bank, and although he may receive no
personal benefit from the deposit, still he is made criminally liable, if at the time he has
knowledge of the bank's insolvent condition.
31 Nev. 43, 50 (1909) Ex Parte Pittman
Counsel for petitioner argues that, unless a false pretense is read into the statute, no
justification exists for penalizing the receiving of a deposit into an insolvent bank, and that a
court has no power to read into the statute a false pretense. It must be conceded that a court
has no legislative powers and cannot read into a statute something that is not within the
manifest intention of the legislature as gathered from the statute itself. The function of a
court, however, is to determine the intention of the legislature from the language used in
accordance with the established rules of statutory construction. If it can be said that when a
bank is opened and is doing business with the public that of itself is in effect a public
declaration of solvency, then we can see no necessity of the legislature in passing a statute
dealing with the subject to declare in the statute the existence of a state of facts which mustbe conceded to exist. A bank does business upon the confidence of the public in its solvency.
When the public ceases to have such confidence, the suspension of the bank is inevitable.
In the case ofBakerv. State, 54 Wis. 368, 12 N. W. 12, the court, considering a similar
statute, said: A bank implies capital, and capital invites confidence. A man holding himself
out as banker or broker thereby gives public proclamation that he has money and property
readily convertible into money in his possession and subject to his control, and for that reason
he may be safely trusted. It requires no argument to show that such assurance is most inviting
and influential with the mass of the people, especially with those unacquainted with the
history and character of the man. With them the banker or broker is intrusted with money
merely because he is a banker or broker, and hence supposed to have surplus capital as astanding guaranty of his agreements and his integrity. For an insolvent banker, company, or
corporation to continue the business of banking is to hold out assurances of responsibility and
surplus capital where neither exists. To do so knowingly is to secure the confidence, and
hence obtain the money, of the ignorant and unwary by an implied deception. It is the old
story of securing the victim by a display of false colors. To suppress this mischief, WRVDYHWKHSXEOLFIURPEHLQJLQGXFHGWRGHSRVLWPRQH\ZLWKVXFKLQVROYHQWE\WKHLPSOLHGDVVXUDQFHRIUHVSRQVLELOLW\DQGZHDOWKHVVHQWLDOWRWKHEXVLQHVVZKHQWKH\GRQRWLQIDFW
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31 Nev. 43, 51 (1909) Ex Parte Pittman
to save the public from being induced to deposit money with such insolvent by the impliedassurance of responsibility and wealth essential to the business, when they do not in fact
exist, was the evident purpose of the statute.
See, also,In re Koetting, 90 Wis. 166, 62 N. W. 622; State v. Shove, 96 Wis. 1, 70 N. W.
312; 37 L. R. A. 142, 65 Am. St. Rep. 17;In re Cook(C. C.) 49 Fed. 833, 842.
InMeadowcraftv. People, the Supreme Court of Illinois, considering the statute of that
state, said: As said by the Supreme Court of Wisconsin inBakerv. State, 54 Wis. 368, 12 N.
W. 12, a bank implies capital, and invites confidence. A man holding himself out as a banker
thereby gives public proclamation that he has money and property readily convertible into
money in his possession and subject to his control, and for that reason he may be safely
trusted; and his business not only affects himself as a banker, but every person who deals withhim as such. The object of the statute that is here challenged was evidently to protect the
public from being induced to deposit money with insolvent bankers, and there are manifest
reason and necessity for protecting the community in their dealings with persons engaged in
the banking business that do not exist in respect to their transactions with those employed in
the ordinary agricultural, manufacturing, merchandising and mining pursuits. (Meadowcraft
v. People, 163 Ill. 56, 45 N. E. 303, 35 L. R. A. 176, 54 Am. St. Rep. 477.)
See, also, State v.Darrah, 152 Mo. 522, 54 S. W. 226;McClure v. People, 27 Colo. 358,
61 Pac. 612;Robertson v. People, 20 Colo. 279, 38 Pac. 326; State v.Beach, 147 Ind. 74, 43
N. E. 949, 46 N. E. 145, 36 L. R. A. 179.
In the case ofCommonwealth v.Rockafellow, 163 Pa. 139, 29 Atl. 757, considering the
case of a defendant convicted for the violation of a statute very similar to ours, and whichstatute, hereinafter quoted, makes no reference to fraud or false pretense, the court said: The
offense clearly and distinctly defined is the fraudulent receipt of the money of a depositor.
A bank of necessity must do business with the public upon its virtual declaration of
solvency. The legislature, within the lawful exercise of its police power, can impose a penalty
for WKHFRQGXFWRIVXFKEXVLQHVVZKHQVXFKEDQNRUEDQNHULVLQIDFWLQVROYHQW
31 Nev. 43, 52 (1909) Ex Parte Pittman
the conduct of such business when such bank or banker is in fact insolvent. The contentionthat this statute violates the provisions of the Constitution of this state inhibiting any special
law for the punishment of crimes or misdemeanors, and that it is class legislation, is without
merit. This court has repeatedly held that the legislature may enact laws which apply only to
certain classes, if the basis or the classification is reasonable. (Pyramid L. and L. Co. v.
Pierce, 30 Nev. 237;Ex Parte Boyce,27 Nev. 299; State v. Cal. M. Co., 15 Nev. 249.)
Judge Cooley treating this subject in his work on Constitutional Limitations, at pages 482,
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483, says: The legislature may also deem it desirable to prescribe peculiar rules for the
several occupations, and to establish distinctions in the rights, obligations, duties, and
capacities of citizens. The business of common carriers, for instance, or of bankers, may
require special statutory regulations for the general benefit, and it may be a matter of public
policy to give laborers in one business a specific lien for their wages when it would be
impracticable or impolitic to do the same for persons engaged in some other employments. Ifthe laws be otherwise unobjectionable, all that can be required in these cases is that they be
general in their application to the class or locality to which they apply, and they are then
public in character, and of their propriety and policy the legislature must judge. Laws which
regulate criminal prosecutions and proceedings or provide that acts done by certain classes of
persons shall be crimes and state the punishment therefor are valid as applying to all of a
class, where the classification is based upon a reasonable distinction; and it is for the
legislature, and not the courts, to decide what is a reasonable distinction; the courts being able
to hold a law unconstitutional only when the classification is based on purely statutory
grounds. (8 Cyc. 1055, and authorities cited.)
In the case ofGulf R. R. Co. v.Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666, the
Supreme Court of the United States said: It is not within the scope of the fourteenthamendment to withhold from the states the power of classification, and, if the law deals alike
with all of a certain class, it is not obnoxious to the charge of a denial of equal protection.
31 Nev. 43, 53 (1909) Ex Parte Pittman
While, as a general proposition, this is undeniably true, yet it is quite true that such
classification cannot be made arbitrarily. The classification must always rest upon some
difference which bears a reasonable and just relation to the act in respect to which the
classification is proposed, and can never be made arbitrarily and without any such basis.Classification for legislative purposes must have some reasonable basis on which to stand. It
must be evident that differences which would serve for a classification for some purposes
furnish no reason whatever for a classification for other legislative purposes. The differences
which will support class legislation must be such as in the nature of things furnish a
reasonable basis for similar laws and regulations.' We think it manifest that there is a
reasonable basis for such a classification as is made by the statute in question.
In the case ofEaston v.Iowa, 188 U. S. 220, 23 Sup. Ct. 288, 47 L. Ed. 452, a case
involving the conviction of a president of a national bank under the Iowa statute, the Supreme
Court of the United States said: Undoubtedly a state has the legitimate power to define and
punish crimes by general laws applicable to all persons within its jurisdiction. So, likewise, itmay declare, by special laws, certain acts to be criminal offenses when committed by officers
or agents of its own banks and institutions. But it is without lawful power to make such
special laws applicable to banks organized and operating under the laws of the United
States. See, also,Dreyerv. Pease (C. C.) 88 Fed. 878.
In the case ofBakerv. State, supra, which was decided in 1882, the Wisconsin court
mentions the States of Illinois, Iowa, Kansas, Louisiana, California, Missouri, South
Carolina, and Michigan as having statutes of this character, and says: These statutes like our
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own are of recent date, and we are not aware of the constitutionality of any of them having
been brought in question in any court; but the extent of the legislation seems to indicate a
pretty general belief in the legislative power. To the foregoing list of states may be added
many others, but in all cases where the constitutionality of these statutes have been raised so
far as we are aware they have in every instance been sustained. In a number of cases ZKHUH
FRQYLFWLRQVKDYHEHHQFRQVLGHUHGXQGHUDFWVRIWKLVFKDUDFWHUQRFRQVWLWXWLRQDOTXHVWLRQVDSSHDUWRKDYHEHHQUDLVHG
31 Nev. 43, 54 (1909) Ex Parte Pittman
where convictions have been considered under acts of this character no constitutional
questions appear to have been raised.
A case to which our attention has been called, but which, we think, can hardly be regarded
as exceptional, is that ofCarrv. State, 106 Ala. 35, 17 South. 350, 34 L. R. A. 634, 54 Am.
St. Rep. 17. The act in question in that case made it a misdemeanor for the president, cashier,
or other officer of a bank, etc., to receive a deposit, knowing or having good cause to believe
that the bank is in a failing condition. For such an offense a fine was imposed of not less than
double the amount of the deposit, one-half of which should go to the person who made the
deposit. A further section provided that the payment back to the depositor of the amount of
the deposit before conviction together with costs shall be a good and lawful defense to any
prosecution under this act. A brief excerpt from the opinion will serve to distinguish this
case from other cases, although it is manifest, we think, that the Alabama statute under
consideration differs materially in character from those adopted in other states to which our
attention has been called:
There cannot be two opinions as to the intent and meaning or the effect upon the whole
enactment of this last and most remarkable provision. It is a declaration of the baldest and themost direct character to one party to a transaction whereby he has incurred a debt to the other
in the name of the state that, unless he has paid that debt, he shall be arrested, held to trial,
tried, convicted, fined and imprisoned at hard labor, and this obviously not for any taint of
criminality in the transaction out of which the debt arose, but purely and simply for the
nonpayment of the debt. For this default, and until it is purged either by simply paying the
debt and accrued costs before conviction or by working out double the debt and costs, the
debtor may be imprisoned for an indefinite time before trial merely and only because he does
not pay the debt and expenses of putting this coercion upon him, there being no pretense of
even ultimately punishing him for taking the deposit, if the preliminary imprisonPHQWVKDOOKDYHWKHGHVLUHGHIIHFWRIH[WRUWLQJWKHPRQH\KHRZHVWKHGHSRVLWRURXWRIKLP
31 Nev. 43, 55 (1909) Ex Parte Pittman
ment shall have the desired effect of extorting the money he owes the depositor out of him.
* * *
This statute was held unconstitutional because it violated the provisions of the Alabama
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Constitution inhibiting imprisonment for debt, which constitutional provisions, however,
differ from ours, in that the Nevada Constitution makes an exception in cases of fraud, libel,
or slander, while the Alabama Constitution makes no exceptions. The Pennsylvania statute
heretofore referred to provides: That any banker, broker or officer of any trust or savings
institution, national, state or private bank, who shall take and receive money from a depositor
with the knowledge that he, they or the bank is at that time insolvent, shall be guilty ofembezzlement and shall be punished by a fine in double the amount so received, and
imprisoned from one to three years in the penitentiary. Laws Pa. 1889 (P. L. 145).
In a note to the case ofCommonwealth v.Junkin, 170 Pa. 194, 32 Atl. 617, 31 L. R. A.
124, we find: In Commonwealth v. Smith, 31 Lanc. Law Rev. 350, the Pennsylvania act of
May 9, 1889, was attacked as unconstitutional, but the court, without directly passing upon
the question, upheld the indictment, thereby implying that the statute was constitutional.
In the case ofCommonwealth v.Rockafellow, supra, the conviction of a private banker
was sustained under the act. The question of its constitutionality, however, was not brought in
question. The court said: The indictment charges that the defendant, being a banker and
knowing he was insolvent, received money from a depositor. The averment in the indictment
follows the language of the act, and is in substantial compliance with the rules of criminalpleading. The offense clearly and distinctly defined is the fraudulent receipt of the money of a
depositor. The act is not to be nullified because this is called embezzlement, and by a
construction which reads into its provisions the definition of that offense. The word was not
well chosen, but the intention is clear.
See also the case ofCommonwealth v.Hazlett, 14 Pa. Super. Ct. 352.
The statute of this state is identical with, and was doubtOHVVFRSLHGIURPWKH&DOLIRUQLDVWDWXWHDGRSWHG)HEUXDU\H[FHSWLQJWKDWWKH&DOLIRUQLDVWDWXWHPDNHVWKH
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31 Nev. 43, 56 (1909) Ex Parte Pittman
less copied from, the California statute adopted February 14, 1872, excepting that the
California statute makes the offense only a misdemeanor. (Cal. Penal Code, sec. 562.)