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29 Nev. 1, 1 (1906)
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 of
sentence, or pardon, shall be considered by the board unless presented in the form and mannerrequired by the law of the state approved February 20, 1875.
4. In every case where the applicant has been confined in the state prison, he or she must
procure a written certificate of his or her conduct during such confinement, from the warden
of said prison, and file the same with the secretary of this board, on or before the day of
hearing.
5. All oral testimony offered upon the hearing of any case must be presented under oath,
unless otherwise directed by a majority of the board.
6. Action by the board upon every case shall be in private, unless otherwise ordered by the
consent of all the members present.
7. After a case has once been acted upon, and the relief asked for has been refused, it shall
not, within twelve months thereafter, be again taken up or considered upon any of the grounds
specified in the application under consideration, except by the consent of a majority of the
members of the board; nor in any case except upon new and regular notice as required by law
in case of original application.
8. In voting upon any application the roll of members shall be called by the secretary of
the board in the following order:
FirstThe Attorney-General.
SecondThe Junior Associate Justice of the Supreme Court.
ThirdThe Senior Associate Justice.
FourthThe Chief Justice.
FifthThe Governor.
29 Nev. 1, 2 (1908) Rules of Board of Pardons
Each member, when his name is called, shall declare his vote for or against the
remission of the fine or forfeiture, commutation of sentence, pardon, or restoration to
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citizenship.
9. No document relating to a pending application for pardon or commutation of sentence,
or to a prior application which has been denied, shall be withdrawn from the custody of the
clerk after filing, unless by consent of the board.
10. Application for pardon or commutation of sentence must be filed with the clerk at
least two days before the regular meeting of the board, at which the application is to beconsidered.
11. All papers pertaining to applications for pardon, or for restoration to citizenship, must
be properly indorsed before presentation for filing; and the name of the attorney for the
applicant must appear in such indorsement on the petition and notices to the district judge and
district attorney. The indorsement on each paper must begin at the top with Board of
Pardons, and include the name of the document.
12. Attorneys shall first present their evidence through witnesses, affidavits, the record or
documents, and then argue their cases concisely and not exceeding one-half hour for each
counsel appearing, unless additional time be granted by the board, and in the event that an
attorney digresses from the evidence, or states facts not supported thereby, or reiterates in his
argument, he shall be called to order. Papers shall be filed separately, or attached before theyare read in evidence, and shall not be withdrawn without the order of the board or some
member thereof.
13. Upon behalf of an applicant for pardon who has been convicted of felony, evidence of
facts relating to the commission of the crime other than that contained in the record, may be
presented only by witnesses, who know the circumstances, appearing and testifying under
oath, or by depositions or affidavits, copies of which shall have been served upon the district
judge and district attorney of the county in which the indictment was found, at least thirty
days before the hearing, unless, for good cause shown, this time be shortened by the board.
____________
29 Nev. 3, 3 (1906) State Library Regulations
NEVADA STATE LIBRARY.
____________
Sections of the Law Relating to Use of Books.
____________
From Compiled Laws of 1900.
Sec. 1518. The state librarian shall keep a register of all books, magazines, papers,
pamphlets, maps, charts and other property added to the library, and of the cost thereof, and
shall stamp the same with the library seal. He shall keep a register of all books taken from the
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library, when taken out, by whom, and when returned. He shall not permit any person or
persons, except such as are authorized by law, to take from the library any book, magazine,
paper, or other property belonging thereto.
Sec. 1522. Upon assuming the duties of his office the secretary of state, as ex officio state
librarian, shall execute a receipt and deliver the same to the justices of the supreme court for
all books and other property in the state library.Sec. 1523. All books, maps, and charts, now belonging to, or which may hereafter come
into possession of this state, by purchase or otherwise; all books, maps, charts, pamphlets,
and other documents, which, by any state officer, may be received in their [his] official
capacity from the general government, or in exchange from other states and territories, or
received from foreign nations, or donated to the state by any person or corporation, shall be
placed in the state library, and shall be carefully preserved by the librarian.
Sec. 1525. Books may be taken from the state library by the members of the legislature
during its session, and at any time by the governor and other officers of the executive
department of this state who are required to keep their offices at the seat of government, the
justices of the supreme court, and attorney-general;provided, that no person shall be
permitted to have more than two volumes of miscellaneous works from said library at thesame time.
29 Nev. 3, 4 (1906) State Library Regulations
Sec. 1526. The librarian shall cause to be kept a register of all the books issued and
returned at the time they shall be so issued and returned, and none of the books, except thelaws, journals and reports of this state, which may be taken from the library by members of
the legislature, during the session, and law books taken by the judges of the supreme court,
shall be retained more than two weeks; and all books taken by the members of the legislature
shall be returned at the close of the session.
Sec. 1527. If any person materially injure or fail to return any books taken from the library
within the time prescribed in the foregoing section, he shall forfeit and pay to the librarian,
for the benefit of the library, three times the value thereof, or of the set to which it belongs.
____________
29 Nev. 5, 5 (1906) Rules of State Library
RULES OF STATE LIBRARY.
____________
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The number of users of the library is so small under the law that it has not heretofore been
considered necessary by those in charge to publish any rules in addition to those included in
the statute.
The office hours are from 10 to 12 o'clock in the morning, and from 1 to 4 in the
afternoon, on judicial days.
Those using books, except members of the supreme court, are requested notto replacethem on the shelves.
Books are not allowed to be taken beyond the limits of the capital city.
Books of reference, including law and miscellaneous, art works and unbound magazines
are not to be taken from the library.
The use of the library is extended to attorneys practicing before the supreme and district
courts, when in the capital city.
____________
29 Nev. 7, 7 (1906) Rules of Supreme Court
RULES
OF THE
Supreme Court of the State of Nevada
Adopted September 1, 1879; as amended to July 7, 1908.
___________
RULE I.
1. Applicants for license to practice as attorneys and counselors will be examined in open
court on the first day of the term.
Examination for Attorneys-at-Law.
2. The supreme court, upon application of the district judge of any judicial district, will
appoint a committee to examine persons applying for admission to practice as attorneys and
counselors-at-law. Such committee will consist of the district judge and at least two attorneys
resident of the district.
The examination by the committee so appointed shall be conducted and certified according
to the following rules:
Examination by Committee.
The applicant shall be examined by the district judge and at least two others of the
committee, and the questions and answers must be reduced to writing.
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No intimation of the questions to be asked must be given to the applicant by any member
of the committee previous to the examination.
Examination to Embrace.
The examination shall embrace the following subjects:
1
The history of this state and of the United States;
2 The constitutional relations of the state and federal governments;
3 The jurisdiction of the various courts of this state and of the United States;
4 The various sources of our municipal law;
5 The general principles of the common law relating to property and personal rights and
obligations; 7KHJHQHUDOJURXQGVRIHTXLW\MXULVGLFWLRQDQGSULQFLSOHVRIHTXLW\MXULVSUXGHQFH
29 Nev. 7, 8 (1906) 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 the
committee; that he had no knowledge or intimation of the nature of any of the questions to be
propounded to him before the same were asked by the committee, and that the answers to
each and all the questions were taken down as given by the applicant without reference to any
books or other outside aid.
Fee To be Deposited Before Examination.
5. The fee of thirty-five dollars for license must in all cases be deposited with the clerk of
the court before the application is made, to be returned to the applicant in case of rejection.
RULE II.
Filing Transcript.
In all cases where an appeal has been perfected, and the statement settled (if there by one)
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thirty days before the commencement of a term, the transcript of the record shall be filed on
or before the first day of such term.
RULE III.
Appeal May Be DismissedCan Be Restored.
1. If the transcript of the record be not filed within the time prescribed by Rule II, theappeal may be dismissed on motion during the first week of the term, without notice. A cause
so dismissed may be restored during the same term, upon good cause shown, on notice to the
opposite party; and, XQOHVVVRUHVWRUHGWKHGLVPLVVDOVKDOOEHILQDODQGDEDUWRDQ\RWKHUDSSHDOIURPWKHVDPHRUGHURUMXGJPHQW
29 Nev. 7, 9 (1906) Rules of Supreme Court
unless so restored, the dismissal shall be final and a bar to any other appeal from the same
order or judgment.
How Restored.
2. On such motion there shall be presented the certificate of the clerk below, under the
seal of the court, certifying the amount or character of the judgment; the date of its rendition;
the fact and date of the filing of the notice of appeal, together with the fact and date of service
thereof on the adverse party, and the character of the evidence by which said service appears;
the face and date of the filing of the undertaking on appeal; and that the same is in due form;
the fact and time of the settlement of the statement, if there by one; and also that the appellant
has received a duly certified transcript, or that he has not requested the clerk to certify to a
correct transcript of the record; or, if he has made such request, that he has not paid the feestherefor, if the same have been demanded.
RULE IV.
Printed Transcripts.
1. All transcripts of record in civil cases, when printed, shall be printed on unruled white
paper, ten inches long by seven inches wide, with a margin on the other edge of not less than
one inch. The printed page shall not be less than seven inches long and three and one-half
inches wide. The folios, embracing ten inches each, shall be numbered from the
commencement to the end, and the numbering of the folios shall be printed between lines.
Nothing smaller than minion type leaded shall be used in printing.
Transcripts in Criminal Cases.
2. Transcripts in criminal cases may be printed in like manner as prescribed for civil
cases; or, if not printed, shall be written on one side only of transcript paper, sixteen inches
long by ten and one-half inches in width, with a margin of not less than one and one-half
inches wide, fastened or bound together on the left sides of the pages by ribbon or tape, so
that the same may be secured, and every part conveniently read. The transcript, if written,
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shall be in a fair, legible hand, and each paper or order shall be separately inserted.
To Be Indexed.
3. The pleadings, proceedings, and statement shall be chronologically arranged in the
transcript, and each tranVFULSWVKDOOEHSUHIDFHGZLWKDQDOSKDEHWLFDOLQGH[VSHFLI\LQJWKH
IROLRRIHDFKVHSDUDWHSDSHURUGHURUSURFHHGLQJDQGRIWKHWHVWLPRQ\RIHDFKZLWQHVVDQGWKHWUDQVFULSWVKDOOKDYHDWOHDVWRQHEODQNIO\VKHHWFRYHU
29 Nev. 7, 10 (1906) Rules of Supreme Court
script shall be prefaced with an alphabetical index, specifying the folio of each separate
paper, order, or proceeding, and of the testimony of each witness; and the transcript shall
have at least one blank fly-sheet cover.
Cannot Be Filed.
4. No record which fail to conform to these rules shall be received or filed by the clerk of
the court.
RULE V.
Printing Transcripts.
The written transcript in civil causes, together with sufficient funds to pay for the printing
of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof,
shall file the same and cause the transcript to be printed, and to a printed copy shall annex his
certificate that the said printed transcript is a full and correct copy of the transcript furnished
to him by the party; and said certificate shall beprima facie evidence that the same is correct.The said printed copy so certified shall also be filed, and constitute the record of the cause in
this court, subject to be corrected by reference to the written transcript on file.
RULE VI.
Cost of Typewriting or Printing Transcripts.
1. The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on
appeal in civil causes and pleadings, affidavits, briefs, or other papers constituting the record
in original proceedings upon which the case is heard in this court, required by these rules to
be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual
mode;provided, that no greater amount than twenty-five cents per folio of one hundred words
shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per
folio for one copy only shall be taxed as costs for typewriting. All other costs to be taxed by
the clerk in accordance with the fee bill.
To Serve Cost Bill, When.
2. Either party desiring to recover as costs his expenses for printing or typewriting in any
cause in this court, shall, before said cause is submitted, file with the clerk and serve upon the
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29 Nev. 7, 12 (1906) Rules of Supreme Court
term after the transcript is filed, and must be noted in the written or the printed points of therespondent, and filed at least one day before the argument, or they will not be regarded.
RULE IX.
Substitution in Case of Death.
Upon the death or other disability of a party pending an appeal, his representative shall be
substituted in the suit by suggestion in writing to the court on the part of such representative,
or any party on the record. Upon the entry of such suggestion, an order of substitution shall be
made and the cause shall proceed as in other cases.
RULE X.Calendar to Consist ofUpon Motion.
1. The calendar of each term shall consist only of those cases in which the transcript shall
have been filed on or before the first day of the term, unless by written consent of the parties;
provided, that all cases, both civil and criminal, in which the appeal has been perfected and
the statement settled, as provided in Rule II, and the transcript has not been filed before the
first day of the term, may be placed on the calendar, on motion of either party, after ten days'
written notice of such motion, and upon filing the transcript.
Subdivision 2 is hereby abrogated.
3. Causes shall be placed on the calendar in the order in which the transcripts are filed by
the clerk.
RULE XI.
Time for Appellant to Serve BriefRespondent.
1. Within fifteen days after the filing of the transcript on appeal in any case, the appellant
shall file and serve his points and authorities or brief; and within fifteen days after the service
of appellant's points and authorities or brief, respondent shall file and serve his points and
authorities or brief; and within fifteen days thereafter, appellant shall file and serve his points
and authorities or brief in reply, after which the case may be argued orally.
2. The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the point made.
Oral Argument.
3. The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authoriWLHVRUEULHIVILOHGDQGDIDLOXUHE\HLWKHUSDUW\WRILOHSRLQWVDQGDXWKRULWLHVRUEULHIVXQGHUWKHSURYLVLRQVRIWKLVUXOHDQGZLWKLQWKHWLPHKHUHLQSURYLGHGVKDOOEHGHHPHGDZDLYHUE\VXFKSDUW\RIWKHULJKWWRRUDOO\DUJXHWKHFDVHDQGVXFKSDUW\VKDOOQRWUHFRYHUFRVWIRUSULQWLQJRUW\SHZULWLQJDQ\EULHIRUSRLQWVDQG
DXWKRULWLHVLQWKHFDVH
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29 Nev. 7, 13 (1906) Rules of Supreme Court
ties or briefs filed, and a failure by either party to file points and authorities or briefs under
the provisions of this rule and within the time herein provided, shall be deemed a waiver by
such party of the right to orally argue the case, and such party shall not recover cost forprinting or typewriting any brief or points and authorities in the case.
4. No more than two counsel on a side will be heard upon the oral argument, except by
special permission of the court, but each defendant who has appeared separately in the court
below may be heard through his own counsel.
Optional in Criminal Cases.
5. In criminal cases it is left optional with counsel either to file written, printed, or
typewritten points and authorities or briefs.
When Submitted.6. When the oral argument is concluded, the case shall be submitted for the decision of
the court.
Stipulation as to Time.
7. The times herein provided for may be shortened or extended by stipulation of parties or
order of court, or a justice thereof.
RULE XII.
Printing and Paper To Be Uniform.
In all cases where a paper or document is required by these rules to be printed, it shall be
printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
RULE XIII.
Number of Copies To Be Filed.
Besides the original, there shall be filed ten copies of the transcript, briefs, and points and
authorities, which copies shall be distributed by the clerk.
RULE XIV.
Opinions Recorded.
All opinions delivered by the court, after having been finally corrected, shall be recordedby the clerk.
RULE XV.
RehearingRemittitur to Issue, WhenTime May Be Shortened or Extended.
All motions for a rehearing shall be upon petition in writing, and filed with the clerk
within fifteen days after the final judgment is rendered, or order made by the court, and
pubOLFDWLRQRILWVRSLQLRQDQGGHFLVLRQ
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29 Nev. 7, 14 (1906) Rules of Supreme Court
lication of its opinion and decision. Personal service or service by mail upon counsel of a
copy of the opinion and decision shall be deemed the equivalent of publication. The party
moving for a rehearing shall serve a copy of the petition upon opposing counsel, who within
ten days thereafter may file a reply to the petition, and no other argument shall be heard
thereon. No remittitur or mandate to the court below shall be issued until the expiration of the
fifteen days herein provided, and decisions upon the petition, except upon special order. The
times herein provided for may be shortened or extended for good cause shown, by order of
court.
RULE XVI.Opinion To Be Transmitted.
Where a judgment is reversed or modified, a certified copy of the opinion in the case shall
be transmitted, with the remittitur, to the court below.
RULE XVII.
No Paper To Be Taken Without Order.
No paper shall be taken from the court room or clerk's office, except by order of the court,
or of one of the justices. No order will be made for leave to withdraw a transcript for
examination, except upon written consent to be filed with the clerk.
RULE XVIII.Writ of Error, or Certiorari.
No writ of error or certiorari shall be issued, except upon order of the court, upon petition,
showing a proper case for issuing the same.
RULE XIX.
Writ of Error to Operate as Supersedeas.
Where a writ of error is issued, upon filing the same and a sufficient bond or undertaking
with the clerk of the court below, and upon giving notice thereof to the opposite party or his
attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall be
substantially the same as required in cases on appeal.
RULE XX.
When Returnable.
The writ of error shall be returnable within thirty days, unless otherwise specially directed.
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29 Nev. 7, 15 (1906) Rules of Supreme Court
RULE XXI.
To Apply.
The rules and practice of this court respecting appeals shall apply, so far as the same may
be applicable, to proceedings upon a writ of error.
RULE XXII.
Time Concerning Writ.
The writ shall not be allowed after the lapse of one year from the date of the judgment,
order, or decree which is sought to be reviewed, except under special circumstances.
RULE XXIII.
Concerning Change of VenueAdditional Notice Given.
Appeals from orders granting or denying a change of venue, or any other interlocutory
order made before trial, will be heard at any regular or adjourned term, upon three days'
notice being given by either appellant or respondent, when the parties live within twentymiles from Carson, an additional day's notice will be required for each fifty miles, or fraction
of fifty miles, from Carson.
RULE XXIV.
Notice of Motion.
In all cases where notice of a motion is necessary, unless, for good cause shown, the time
is shortened by an order of one of the justices, the notice shall be five days.
RULE XXV.
Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.
1. Hereafter all transcripts of the record in any action or proceeding may be typewritten.
The typewriting shall be the first impression, clearly and legibly done, with best quality of
black ink, in type not smaller than small pica, upon a good quality of typewriting paper,
thirteen inches long by eight inches wide, bound in boards with flexible backs, in volumes of
a size suitable for convenient handling and ready reference, and arranged and indexed as
required by the rules of this court. When so typewritten such transcript, in the discretion of
the party appealing, need not be printed; but, if printed, all the rules concerning the same shall
still apply thereto.
29 Nev. 7, 16 (1906) Rules of Supreme Court
Briefs May Be Typewritten.
2. Briefs and points and authorities, instead of being printed, may be typewritten upon the
same paper and in the same style and form as is prescribed for typewritten transcripts.
Copy To be ServedTwo Copies To Be Filed.
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3. When so typewritten, but one copy of such transcript need be filed in the case; but a
copy thereof shall be served upon the opposite party. Two copies of the briefs and points and
authoritiesviz., the first impression and a copy thereofshall be filed with the clerk, and a
copy shall be served upon each opposite party who appeared separately in the court below.
RULE XXVI.Concerning Certificate of Naturalization.
Under no circumstances shall this court, or any of the district courts of the State of
Nevada, hear proof for the issuance of, or issue final papers or certificates of naturalization to
any applicant therefor, at any time within the sixty days immediately preceding any general or
special state election of this state.
RULE XXVII.
Payment of Advance Fee RequiredClerk Prohibited from Filing.
No transcript or original record shall be filed or cause registered, docketed, or entered until
an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of
suit. The clerk of the court is prohibited from filing or registering any record without firsthaving received as a deposit the aforesaid fee.
____________
29 Nev. 17, 17 (1906) Rules of District Court
RULES
OF THE
District Court of the State of Nevada
___________
RULE I.
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.
RULE II.
Calendars to ContainAttorneys.
The clerk of each county of the state shall make three calendars for the district court of hiscounty, upon one of which he shall place all civil causes at issue upon questions of fact as
soon as the issue is made; upon another of which he shall place all civil causes at issue upon a
question of law, and all motions of every nature, except ex parte motions, as soon as the issue
is made, or as soon as notice of motion is filed; and upon the third of which he shall place all
criminal business of every kind. The names of the attorneys of the respective parties shall be
appropriated placed on such calendars. The clerk shall, on every Saturday, forward to the
presiding judge of the court, and also to the judge who is to sit in his county, a full statement
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of the condition of the business of the court as shown by the calendars.
RULE III.
Notice as to Time.
The judge who is to hold court in any county shall give the clerk of such county notice of
the time when court will sit. The clerk shall, immediately upon receiving such notice, give allthe attorneys having business in said court, as shown by the calendar, and also all attorneys
practicing in his county, notice in writing of the time when court will be held. He shall also
give notice of the time of holding FRXUWLQVRPHQHZVSDSHUSULQWHGDQGSXEOLVKHGDWWKHFRXQW\VHDWRIKLVFRXQW\SURYLGHGLWFDQEHGRQHZLWKRXWH[SHQVH
29 Nev. 17, 18 (1906) Rules of District Court
court, in some newspaper printed and published at the county seat of his county, provided it
can be done without expense.
RULE IV.
When Calendar CalledOrder.
Upon the meeting of the court, as provided in Rule III, the law calendar will first be called
and disposed of. The trial calendar will then be called, and causes at issue upon questions of
fact disposed of. When the calendar is called the causes will be set for a time certain. Parties
are expected to be ready to try their causes, whether at issue upon questions of law or fact,
when the calendar is called, and in the order in which they are set. Parties may, prior to the
meeting of the court, fix the day of trial by stipulation in writing, subject to the approval of
the court or judge. The daily business of the court will be disposed of in the following order:FirstThe minutes of the previous day's business shall be read, approved, and signed by
the judge.
SecondEx parte motions.
ThirdProbate business, when there is no contest.
FourthIssues arising subsequent to the calling of the calendar shall be set.
FifthTrial of causes, as previously set.
SixthQuestions of law.
RULE V.
Law Day.
On each Saturday of any session of court held by any district judge, law questions shall
take precedence, and be heard without previous setting or notice.
RULE VI.
Relating to Motions.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
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further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
RULE VII.
Issues of LawDecision.
Any issue of law, and any motion of any nature or kind, may be heard orally by stipulationof the parties, at any time or place agreed on in the state, with the consent of the MXGJHILUVWKDYLQJMXULVGLFWLRQRIWKHFDXVHRUVXFKTXHVWLRQVRIODZRUPRWLRQVDVWKHFDVHPD\EHPD\EHVXEPLWWHGRQEULHIVRIVXFKMXGJHZLWKKLVFRQVHQWDQGWKHGHFLVLRQPD\EHILOHGWKHUHDIWHUDWDQ\WLPHZKLFKGHFLVLRQVKDOOIL[WKHWLPHZKHQWKHGHFLVLRQRIWKHFRXUWLVWREHFRPSOLHGZLWKDQGLQDOOVXFKFDVHVWKHSDUW\ZKRLVUHTXLUHGWRDFWE\VXFK
GHFLVLRQVKDOOUHFHLYHGXHZULWWHQQRWLFHWKHUHRIIURPWKHRSSRVLWHSDUW\
29 Nev. 17, 19 (1906) Rules of District Court
judge first having jurisdiction of the cause, or such questions of law, or motions, as the casemay be, may be submitted on briefs of such judge, with his consent, and the decision may be
filed thereafter at any time, which decision shall fix the time when the decision of the court is
to be complied with; and in all such cases the party who is required to act by such decision,
shall receive due written notice thereof from the opposite party. Time for complying with
such decision shall commence to run from the time when service is made in the manner
required by the statutes for service of pleadings in a case;provided, that when the parties are
present by their respective attorneys when the decision is rendered, no notice shall be
required.
RULE VIII.
DemurrerSet Down for Trial.
When a demurrer is interposed in any case, if it be made to appear to the satisfaction of the
court that such demurrer has not been interposed in good faith, but merely for delay, the
defendant shall only answer upon such terms as the court may prescribe, and upon the filing
of the answer, the case shall be set down for trial for as early a day as the business of the court
will permit. In cases other than those above mentioned, ten days shall be allowed to amend or
plead, as the case may be, unless the court by its order fix a different time.
RULE IX.
Documents and Pleadings.
All documents and pleadings, intended for the files of this court, shall be on paper knownas legal cap, of good quality, and without interlineations, unless noted thereon by the clerk
at the time of filing. No original pleading or paper shall be amended by making erasures or
interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all
papers issued from this court, or to be used therein, which are required by law or rule of court
to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the
party failing shall be compelled to renew the paper, or be precluded from using the original,
as the court may deem proper.
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RULE X.
Motions.
Motions in all cases, except ex parte motions, motions for FRQWLQXDQFHDQGPRWLRQVWRDPHQGSOHDGLQJVSHQGLQJDWULDOVKDOOEHQRWLFHGDWOHDVWILYHGD\VEHIRUHWKHGD\VSHFLILHGIRUDKHDULQJDQGDFRS\RIDOOSDSHUVWREHXVHGE\WKHPRYLQJSDUW\H[FHSW
SOHDGLQJVRURWKHUUHFRUGVRIWKHFRXUWVKDOOEHVHUYHGZLWKWKHQRWLFHRIPRWLRQ
29 Nev. 17, 20 (1906) Rules of District Court
continuance, and motions to amend pleadings pending a trial, shall be noticed at least five
days before the day specified for a hearing, and a copy of all papers to be used by the moving
party, except pleadings or other records of the court, shall be served with the notice of
motion. The notice of motion shall be in writing, and shall specify the papers to be used and
the names of witnesses to be examined by the moving party, and the grounds upon which the
motion is made;provided, that the court may, upon good cause shown, shorten or enlarge thetime for hearing. For a failure to comply with this rule the motion shall be denied.
RULE XI.
Hearing of Motions.
Upon reading and filing the notice of motion, with due proof of service of the same, and of
the papers mentioned therein, if no one appears to oppose the motion, the moving party shall
be entitled to have the motion decided. Upon the hearing, the affidavits to be used by either
party shall be endorsed and filed before the affidavits shall be used. The manner of making
motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof, orintroduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing papers,
or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, if
admissible under the rules of practice in law or equity. The counsel for the moving party shall
make his argument, to be followed by the counsel of the opposing party, and the counsel for
the moving party may reply.
RULE XII.
Hearing of Motions of ContinuanceTestimony of AbsenteesCounter Affidavit.
All motions for the continuance of causes shall be made on affidavit; and, when made on
the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding place, if
known.
SecondWhat diligence has been used to procure their attendance, or depositions, and the
causes of a failure to procure the same.
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29 Nev. 17, 21 (1906) Rules of District Court
ThirdWhat the affiant has been informed and believes will be the testimony of each of
such absent witnesses, and whether or not the same facts can be proven by other witnesses
than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of such
absent witnesses could not be obtained.
FifthThat the application is made in good faith, and not for delay merely. And no
continuance will be granted unless the affidavit upon which it is applied for conforms to this
rule, except where the continuance is applied for in a mining case, upon the special ground
provided by statute. A copy of the affidavits upon which a motion for a continuance is made,
shall be served upon the opposing party as soon as practicable after the cause for the
continuance shall be known to the moving party. Counter affidavits may be used in
opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
RULE XIII.
Attorneys as Witnesses.
If the attorney or counsel of either party offers himself as a witness on behalf of his client,
and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up to the
jury, without the permission of the court.
RULE XIV.
Sureties.
No attorney will be received as surety on any bond or recognizance to be filed or entered
into in any action or proceeding in this court.
RULE XV.
DepositionsInterrogatories, How Settled.
A party making application for a commission to take the deposition of a witness out of the
state, shall serve, with the notice of such application, a copy of the direct interrogatories; and,
at least one day before the hearing of the application, the adverse party shall serve upon the
moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall be
settled at the time of hearing the DSSOLFDWLRQXQOHVVWKHFRXUWRUMXGJHRWKHUZLVHGLUHFWSURYLGHGWKDWSDUWLHVPD\DJUHHWRWKHLQWHUURJDWRULHVZLWKRXWVXEPLVVLRQWRWKHFRXUWRU
MXGJHRUPD\VWLSXODWHWKDWWKHGHSRVLWLRQVPD\EHWDNHQZLWKRXWZULWWHQLQWHUURJDWRULHV
29 Nev. 17, 22 (1906) Rules of District Court
application, unless the court or judge otherwise direct;provided, that parties may agree to the
interrogatories without submission to the court or judge, or may stipulate that the depositions
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may be taken without written interrogatories.
RULE XVI.
Depositions.
When a deposition is received by the clerk, he shall endorse upon the envelope the time of
receiving it, and immediately file it with the papers of the case in which it was taken; and atany time afterward, upon the application of any attorney in the case, he shall open the same,
and endorse upon the envelope the time of opening, and the name of the attorney upon whose
application it was opened, and shall then file the deposition.
RULE XVII.
Amended Pleadings.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or suchproposed amendment, before the application shall be heard.
RULE XVIII.
To Strike Out.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
RULE XIX.
Withdrawal of Papers.
No paper or record belonging to the files of the court shall be taken from the office andcustody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
RULE XX.
Additional UndertakingAttachments.
If the undertaking required before issuing a writ of attachment is shown to the satisfaction
of the court or judge, upon proper notice, to be insufficient to secure the party whoseSURSHUW\LVDWWDFKHGDJDLQVWGDPDJHVWKHFRXUWRUMXGJHPD\UHTXLUHDQDGGLWLRQDO
XQGHUWDNLQJWREHILOHGDQGLIQRWILOHGWKHDWWDFKPHQWVKDOOEHGLVVROYHG
29 Nev. 17, 23 (1906) Rules of District Court
property is attached, against damages, the court or judge may require an additional
undertaking to be filed, and if not filed, the attachment shall be dissolved. No attachment
shall be dissolved by reason of any defect in the attachment papers that can be amended
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without affecting the substantial rights of the parties.
RULE XXI.
Trials.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of lawseparately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
RULE XXII.
AppealsCertificate of Appeal to StateSupersedeas.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall
stay all further proceedings in the court below, upon the judgment or order appealed from, or
upon the matter embraced therein; and if an execution or other order shall have been issued to
the sheriff, coroner, or elisor, he shall return the same, with the cause therefor, and his
proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, underthe seal of the court, of the perfecting of the appeal. The certificate shall state the title of the
action, the filing and service of the notice of appeal and the date of such filing and service,
together with the filing and approval of the undertaking staying all proceedings, and the date
of such filing and approval; and such certificate shall operate as a supersedeas of the
execution, or a vacation of the order.
RULE XXIII.
Foreclosing MortgageService by Publication.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by theanswer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumEUDQFHUVRIWKHPRUWJDJHVSUHPLVHVDQGWRH[DPLQHDQGUHSRUWZKHWKHUWKHPRUWJDJHGSUHPLVHVFDQEHVROGLQSDUFHOVLIWKHZKROHDPRXQWVHFXUHGE\WKHPRUWJDJH
KDVQRWEHFRPHGXH
29 Nev. 17, 24 (1906) Rules of District Court
brancers of the mortgages premises, and to examine and report whether the mortgaged
premises can be sold in parcels, if the whole amount secured by the mortgage has not become
due. If any of the defendants have been served by publication, the order of reference shall also
direct the referee to take proof of the facts and circumstances stated in the complaint, and to
examine the plaintiff, or his agent, on oath, as to any payments which have been made, and to
compute the amount due on the mortgage, preparatory to the application for decree of
foreclosure.
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RULE XXIV.
Further Time.
When an order shall be made enlarging the time to file a statement or affidavits on motion
for new trial, the adverse party shall have the same number of days to propose amendments or
file counter affidavits as was allowed by such order to file such statement or affidavits.
RULE XXV.
Settled by Referee.
When a motion for a new trial is made in a cause tried before a referee, the statement shall
be settled by the referee.
RULE XXVI.
UndertakingsStay of ExecutionCertificate to State.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or debt, orperformance of the act directed by the judgment or order, in such amount as may be fixed by
the judge. An order to stay execution, or other proceedings in an action, shall be of no effect
until a copy of notice thereof is served upon the opposite party, or his attorney, and any other
party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be
present at the time of making such order. And if an execution or other order shall have been
issued to the sheriff, coroner, elisor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder indorsed thereon, upon receiving from the clerk a
certificate, under the seal of the court, of the granting ofWKHVWD\RIH[HFXWLRQRURWKHUSURFHHGLQJV
29 Nev. 17, 25 (1906) Rules of District Court
the stay of execution or other proceedings. The certificate shall state the title of the action, the
order staying the execution or other proceedings, and the date of such order, together with the
filing and approval of the undertaking above required, and the date of such filing and
approval; and such certificate shall operate as a supersedeas of the execution or a vacation of
the order.
RULE XXVII.
Stipulations.
No agreement or stipulation between the parties in a cause, or their attorneys, in respect to
the proceedings therein, will be regarded, unless the same shall be entered in the minutes in
the form of an order, by consent, or unless the same shall be in writing, subscribed by the
party against whom the same shall be alleged, or by his attorney or counsel.
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RULE XXVIII.
Juror, How Excused.
No juror shall be excused except in open court; and when a juror is excused, the clerk shall
immediately withdraw his name from the box for the period for which he has been excused.
RULE XXIX.Guardians.
No person shall be appointed guardian ad litem, either upon the application of the infant or
otherwise, unless he be the general guardian of the infant, or an attorney or other officer of
this court, or is fully competent to understand and protect the rights of the infant; has no
interest adverse to that of the infant, and is not connected in business with the attorney or
counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the
infant for any damage which may be sustained for his negligence or misconduct in defense of
the suit.
RULE XXX.
Attorneys as Guardians Ad Litem.
Every attorney, or officer of this court, shall act as guardian of an infant defendant,
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case, so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
29 Nev. 17, 26 (1906) 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,
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.
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The party against whom judgment is entered shall have two days after service of a copy of
the cost bill in which to move to retax costs.
RULE XXXV.
Mechanics' Liens.
In actions to enforce mechanics' liens, other lienholders coming in under the noticepublished by the plaintiff shall do so by filing with the clerk and serving on the plaintiff, and
also on the defendant, if he be within the state, or be represented by counsel, a written
statement of the facts constituting their liens, together with the dates and amounts thereof,
and the plaintiff and other parties adversely interested shall be allowed five days to answer
such statements.
RULE XXXVI.
Motions.
No motion once heard and disposed of shall be renewed in the same cause, nor shall the
same matters therein embraced be reheard, unless by leave of the court granted upon motion
therefor, after notice of such motion to the adverse parties.
RULE XXXVII.
Appeal from Justices' CourtDismissed, When.
When an appeal from the justices' court to this court has been perfected, and the papers are
not filed in this court within fifteen days from the day of filing the undertaking on DSSHDOWKLVFRXUWRQWKHSURGXFWLRQRIDFHUWLILFDWHIURPWKHMXVWLFHWRWKHHIIHFWWKDWDQDSSHDOKDVEHHQRUGHUHGXSRUWKHSURSHUFRVWVQRWSDLGRUXSRQVKRZLQJWKDWDQ\RWKHUQHFHVVDU\VWHSVKDYHQRWEHHQWDNHQVKDOOGLVPLVVWKHDSSHDODWWKHFRVWRIWKHDSSHOODQW
29 Nev. 17, 27 (1906) Rules of District Court
appeal, this court, on the production of a certificate from the justice to the effect that an
appeal has been ordered up, or the proper costs not paid, or upon showing that any other
necessary steps have not been taken, shall dismiss the appeal at the cost of the appellant.
RULE XXXVIII.
Appeal Dismissed, When.
The plaintiff shall cause the papers in a case certified to this court under the provisions of
the 539th section of the practice act, to be filed in the office of the clerk of this court withinfifteen days from the day upon which the order of the justice is made directing the transfer of
the case. If the papers are not so filed the case shall be dismissed, upon filing a certificate
from the justice to the effect that he has certified the papers as required by said section, but
that the same has not been ordered up, or the proper costs paid; or if it shall appear that such
papers are not filed in this court by reason of the neglect of the plaintiff to pay the fees of the
clerk for filing the same.
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RULE XXXIX.
Duties of Sheriff.
During the time the court remains in session it shall be the duty of the sheriff in attendance
to prevent all persons from coming within the bar, except officers of the court, attorneys and
parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall
also keep the passage way to the bar clear for ingress or egress.
RULE XL.
Instructions To Be Settled, When.
Before the argument begins, counsel shall prepare their instructions, submit them to the
inspection of the opposite party, and then deliver them to the court. The court will hear
objections to instructions, and will, when practicable, settle the instructions in advance of the
argument, and permit counsel to use them when addressing the jury.
RULE XLI.
Trials.
When any district judge shall have entered upon the trial or hearing of any cause orproceeding, demurrer or motion, or made any ruling, order or decision therein, no other judgeVKDOOGRDQ\DFWRUWKLQJLQRUDERXWVDLGFDXVHSURFHHGLQJGHPXUUHURUPRWLRQXQOHVVXSRQWKHZULWWHQUHTXHVWRIWKHMXGJHZKRVKDOOKDYHILUVWHQWHUHGXSRQWKHWULDORUKHDULQJRIVDLGFDXVHSURFHHGLQJGHPXUUHURUPRWLRQ
29 Nev. 17, 28 (1906) Rules of District Court
shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless uponthe written request of the judge who shall have first entered upon the trial or hearing of said
cause, proceeding, demurrer or motion.
RULE XLII.
Writs.
When an application or petition for any writ, rule or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
RULE XLIII.Duties of Judge.
No judge, except the judge having charge of the cause or proceeding, shall grant further
time to plead, move, or do any act or thing required to be done in any cause or proceeding,
unless it be shown by affidavit that such judge is absent from the state, or from some other
cause is unable to act.
RULE XLIV.
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Causes Certified by State Land Register.
When a cause shall have been certified by the state land register to the district court for
trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such
certification, to file and serve upon the adverse party a complaint setting forth the facts upon
which he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the factsupon which he relies.
RULE XLV.
Vacating Judgments, Orders, Etc.Time to Amend.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
29 Nev. 17, 29 (1906) 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 such
counties.
RICHARD RISING,
Presiding District Judge.
R. R. BIGELOW,
A. L. FITZGERALD,
District Judges.
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____________
29 Nev. 43, 43 (1906)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1906.
____________
29 Nev. 43, 43 (1906) State v. Lovelace
[No. 1679.]
THE STATE OF NEVADA, Respondent, v. PAUL
LOVELACE, Appellant.
BurglarySufficiency of IndictmentLanguage Thereof.
1. The said Paul Lovelace did in the night time of the 11th day of May, 1904, or in the night time of some day
thereabouts, to the said 11th day of May, 1904, enter, etc., would sufficiently comply with the statute to
constitute the charge of burglary. The authorities show that courts should give a liberal interpretation of
indictments to uphold the same rather than a rigid interpretation.
2. That the mere grammatical, punctuational (if verbal free coinage may be here allowed), rhetorical or
linguistic error does not always vitiate, is fully sustained by decisions of courts and text-writers.
Appeal from the District Court of the Fourth Judicial District of the State of Nevada, Elko
County; George S. Brown, Judge.
Paul Lovelace was convicted of the crime of burglary, and he appeals. Affirmed.
The facts sufficiently appear in the opinion.
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29 Nev. 43, 44 (1906) State v. Lovelace
William Woodburn, for Appellant:
I. The indictment is not good at common law. The time of the commission of the crime
charged in the indictment is in the following words: The said Paul Lovelace on the 11th day
of May, 1904, in the night time of said day, or thereabouts, in the County of Elko, State of
Nevada, without authority of law and before the finding of this indictment, did wilfully,
unlawfully and burglariously break and enter the building of one Alexander Burrell.
Appellant claims that this indictment is not good at common law because the words or
thereabouts relate to and qualify the words night time. If the words or thereabouts had
been inserted after the words on the 11th day of May, 1904, the indictment could not be the
subject of criticism or assault. If the indictment read that on the 11th day of May, 1904, in the
night time, or thereabouts, of said day, the fair construction is that the burglary may be
committed near or about the night time, which would make the indictment fatally defective.
The offense of burglary must be committed in the night time, and not near or about the night
time, and should be alleged with certainty. The night time consists of the period from thetermination of daylight to the earliest dawn of the morning. (Whart. Crim. Law, 8th ed. 807;
State v.Bancroft, 10 N. H. 105.) Burglary in the night time does not include burglary in the
daytime. (State v.Behee, 17 Kan. 402; State v.Alexander, 56 Mo. 131; Williams v. State, 46
Ga. 212.) If language employed in charging part of indictment be capable of two
interpretations the indictment is bad. (People v. Williams, 36 Cal. 671.) The words or
thereabouts cannot be rejected as surplusage. (People v.Myers, 20 Cal. 76.)
II. On the trial of appellant the deposition of one Ross, taken at the preliminary
examination, was read in evidence, because he broke jail and escaped before the trial and his
presence could not be procured. He testified that he and appellant entered the store of
Alexander Burrell on the day named in the indictment, stole a lot of amalgam of the value of
about $2,400, and buried it a short distance from the scene of the crime. Appellant claims
there was no testiPRQ\FRUURERUDWLYHRIWKDWRI5RVVDQGWKDWDFRQYLFWLRQFRXOGQRWEH
KDG
29 Nev. 43, 45 (1906) State v. Lovelace
mony corroborative of that of Ross, and that a conviction could not be had. (Sec. 4330,
Comp. Laws.)
James G. Sweeney, Attorney-General, and Charles B. Henderson, for Respondent:
I. Section 4206 of the Compiled Laws of Nevada (Section 241 of Criminal Practice Act)
says: The words used in an indictment shall be construed in the usual acceptance in common
language, except such words and phrases as are defined by law, which are to be construed
according to their legal meaning. As the words or thereabouts are not defined by law, we
must therefore construe them in their usual acceptance in common language. It is manifest
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that the intention of the pleader was to charge the forcible breaking and entering in the night
time of the 11th day of May, 1904, and that is what any person of common understanding
would construe it to mean, but counsel for appellant contends that, under a strict grammatical
analysis, it means that defendant forcibly broke and entered the building in the night time or
thereabouts. In order to reach this construction, he reads the indictment as if the words or
thereabouts immediately followed the words night time instead of the words said day,when the words or hereabouts, taken in their usual acceptance in common language, related
to the 11th day of May, 1904, and not to any particular hour or part of that day, for, had the
evidence shown that the forcible breaking and entering was on the 9th day of May, 1904, the
indictment would still have been good, because it would have still been in the night time of
said day.
II. The most that can be said against the use of these in the indictment and in the place that
they are is that it makes the language of the indictment rather awkward, but the criticism that
would deprive it of any meaning whatever or of such a meaning as to wholly destroy the
indictment is too broad. It is a more reasonable construction to simply reject the words or
thereabouts as wholly unnecessary to its sense, or construe them as relating to the 11th day
of May, 1904. There is nothing to perplex one of ordinary understanding, nor to injure thisappellant. If error at all, LWLVKDUPOHVVHUURUDQGFDQEHWUHDWHGDVPHUHVXUSOXVDJHIRUWKLVDSSHOODQWFRXOGQRWKDYHEHHQSUHMXGLFHGDWDOO
29 Nev. 43, 46 (1906) State v. Lovelace
it is harmless error, and can be treated as mere surplusage, for this appellant could not have
been prejudiced at all.
By the Court, Fitzgerald, C. J.:
Defendant appeals from a judgment rendered against him in the district court in and for
Elko County for the crime of burglary; and he assigns two reasons why, as he claims, the
judgment should be reversed:
First, the insufficiency of the indictment on which the judgment was based; and
Second, the absence of corroboration of the testimony of an accomplice who testified
against the defendant.
Under the first head the point made is on the proper interpretation of the following clause
in the indictment: The said Paul Lovelace on the 11th day of May, 1904, in the night time of
said day, or thereabouts, in the County of Elko, State of Nevada, without authority of law,
and before the finding of this indictment, did wilfully, unlawfully, and burglariously break
and enter the building of one Alexander Burrell.
Counsel for defendant in his or theirbrief, if an unsignedpaper in the usual form of a brief
found among the papers in the case as they appear filed in this court is by us treated as a brief,
say:
Appellant claims that this indictment is not good at common law because the words or
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thereabouts' relate to and qualify the words night time.' This question was not raised in the
court below, but is here presented for the first time. The question is not whether this
indictment would be good at common law. It is whether it is good under the statute of
Nevada that governs the subject. The subject is governed by the sections following
concerning indictments:
Section 4199, Comp. Laws, provides that the indictment shall contain a statement of theacts constituting the offense, in ordinary and concise language, and in such manner as to
enable a person of common understanding to know what is intended.
Section 4206, Comp. Laws, has the following: The words used in an indictment shall be
construed in the usual DFFHSWDQFHLQFRPPRQODQJXDJHH[FHSWVXFKZRUGVDQGSKUDVHVDV
DUHGHILQHGE\ODZZKLFKDUHWREHFRQVWUXHGDFFRUGLQJWRWKHLUOHJDOPHDQLQJ
29 Nev. 43, 47 (1906) State v. Lovelace
acceptance in common language, except such words and phrases as are defined by law, whichare to be construed according to their legal meaning.
Section 4208, Comp. Laws, provides: SixthThat the act or omission charged as the
offense is clearly and distinctly set forth in ordinary and concise language, without repetition,
and in such manner as to enable a person of common understanding to know what is
intended.
Section 4209 is as follows: No indictment shall be deemed insufficient, nor shall the trial,
judgment, or other proceeding thereon be affected by reason of any defect or imperfection in
matters of form which shall not tend to the prejudice of the defendant.
The foregoing enactments show that it was the intention of the Legislature of Nevada that
in construing indictments the courts should not indulge in a too exact and over-nice view of
language; but that certainty to a common intent was all that should be required.True, in the paragraph of the indictment under discussion there is something of a departure
from the best models of grammatical, rhetorical, or linguistic expression. But we think the
paragraph meets the requirement of the statute that the acts constituting the offense should
be charged in ordinary and concise language, and in such manner as to enable a person of
common understanding to know what is intended. To hold the indictment not fatally bad is,
we think, to keep within the statutory command, as expressed above in Section 4206, or at
least not to depart too far from such command, to wit, to construe in the usual acceptance in
common language.
We think the defect of the indictment complained of was such as in the language of
Section 4209, above quoted, was a defect or imperfection in matters of form, which did nottend to the prejudice of the defendant.
The language of the indictment could doubtless be made more accurate; but we think it is
not fatally defective. In the brief of counsel for defendant the following correction is offered:
If the words or thereabouts' had been inserted after the ZRUGVRQWKHWKGD\RI0D\WKHLQGLFWPHQWFRXOGQRWEHWKHVXEMHFWRIFULWLFLVPRUDVVDXOW
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29 Nev. 43, 48 (1906) State v. Lovelace
words on the 11th day of May, 1904,' the indictment could not be the subject of criticism or
assault.
Perhaps the following phraseology might be considered an improvement on the
phraseology of the indictment: The said Paul Lovelace did in the night time of the 11th day
of May, 1904, or in the night time of some day thereabouts, to the said 11th day of May,
1904, enter, etc.
Said Paul Lovelace did, in the night time, on or about the 11th day of May, 1904, * * *
enter, etc., * * * might perhaps be considered a still better collocation of words, although
this is something of a departure from the form suggested in the statute concerning the form of
indictments.
That mere grammatical,punctuational (if verbal free coinage may be here allowed),
rhetorical, or linguistic error does not always vitiate, is fully sustained by decisions of courts
and text-writers. The following notably excellent authority is cited to sustain this doctrine:
Cyclopedia of Law and Procedure (Cyc.) vol. 6, p. 199, and authorities there mentioned.While this indictment in the respect mentioned is in truth inartistically drawn, yet, under
the statutes and the authorities above stated, we cannot say that it is fatally defective. The
sections of the statute above quoted show the legislative intent was that the courts of the state
should give interpretations liberal to sustain rather than rigid to overthrow indictments, when,
as in this case, substantial rights of defendants are not thereby prejudiced; and, as we have
from the authority mentioned seen, even under the common law to overthrow this indictment
would seem too rigid an interpretation.
Under the second head the error claimed is stated in the brief of counsel for defendant, as
follows:
On the trial of appellant the deposition of one Ross taken at the preliminary examination
was read in evidence, because he broke jail and escaped before the trial, and his presence
could not be procured.
He testified that he and appellant entered the store of Alexander Burrell on the day named
in the indictment, stole a lot of amalgam of the value of about $2,400, and buried it DVKRUW
GLVWDQFHIURPWKHVFHQHRIWKHFULPH
29 Nev. 43, 49 (1906) State v. Lovelace
a short distance from the scene of the crime. Appellant claims there was no testimony
corroborative of that of Ross, and that a conviction could not be had.
In this contention counsel is, we think, clearly mistaken. Besides minor points of
corroboration not necessary to mention here, the testimony of the witness W. J. Davidson
corroborates the testimony of the accomplice, Ross. Davidson testifies that defendant
requested him (Davidson) to help him rob the store at Edgemont; that is the store that was
robbed. Davidson further testifies that the defendant told me he would have got the amalgam
if something had not happened; the amalgam was the article stolen in the robbery. Davidson
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further testifies that defendant was trying to dispose of the amalgam, the thing stolen; and
asked Davidson this question: What am I going to do about that damned stuff?
If this testimony was true, and its truth was a question entirely for the jury, there was
corroboration of the testimony of the accomplice, Ross.
Defendant fails in sustaining either of his two points urged in argument for reversal of the
judgment.The judgment is therefore affirmed.
____________
29 Nev. 50, 50 (1906) State v. Grimes
[No. 1683.]
THE STATE OF NEVADA, ex rel. NEVADA TITLE GUARANTY AND TRUST
COMPANY, a Corporation, Relator, v. PUDDY GRIMES, as County Recorder in and
for the County of Nye, State of Nevada, Respondent.
1. RecordsAccess toRights of Abstract Companies. Under sections 2663, 2664, Comp. Laws, providing that
every conveyance of real estate, and every instrument of writing setting forth an agreement to convey any
real estate, or whereby any real estate may be affected, proved, acknowledged, certified, and recorded in
the manner presented, shall from the time of filing the same with the recorder for record, impart notice to
all persons of the contents thereof, and subsequent purchasers and mortgagees shall be deemed to purchase
and take with notice, and under other statutes enumerated, as construed in connection with the common
law, a corporation organized for the purpose of furnishing abstracts and guaranteeing titles may, free of
charge, through its agents and employees, during regular business hours, inspect and make memoranda and
copies of all files and records in the office of the county recorder, in so far as they relate to current
transactions in which it is authorized or employed to make searches, furnish abstracts, or guarantee titles by
persons having, or seeking to acquire, an interest in property; the examination to be made at such times and
under such circumstances as will not prevent the recorder or his assistants from discharging their duties,
nor interfere with the right of other persons to have access to the records.
2. SameCompiling Abstract Books. Under the laws mentioned, relator has not the right to copy or inspect all
records for the purpose of compiling an independent set of abstract books, covering all the property to
which the records relate and for use in equipping an office in opposition to the recorder.
(Syllabus by the Court.)
Original Proceeding. Petition by the State, on the relation of The Nevada Title Guaranty
and Trust Company, for writ ofmandamus to Puddy Grimes, County Recorder of the Countyof Nye. Denied.
The facts sufficiently appear in the opinion.
George S. Green, Alfred Chartz, and T. A. A. Siegfriedt, for Relator:
I. Moreover, it is well settled in law that, in the absence of a statute declaring the right of
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access and inspection, public records are no less subject to such inspection. As said inLum v.
McCarty, 39 N. J. Law, 289, by the court, ZKLFKZDVDFDVHYHU\VLPLODUWRWKHRQHDWEDUDQGLQZKLFKWKHUHZHUHSURYLVLRQVRIVWDWXWHGHFODULQJWKHULJKWRISXEOLFLQVSHFWLRQRIFHUWDLQUHFRUGVDQGVLOHQWDVWRRWKHUVLWLVDOVRVXJJHVWHGWKDWWKHDEVHQFHRIDQ\SURYLVLRQIRUDFFHVVE\WKHSXEOLFWRWKHUHFRUGVRIMXGJPHQWVRIWKHFLUFXLWFRXUWIDYRUV
WKHFKDUJHE\WKHFOHUNVRIDUDVWKHUHFRUGVRIWKRVHMXGJPHQWVDUHFRQFHUQHG
29 Nev. 50, 51 (1906) State v. Grimes
which was a case very similar to the one at bar, and in which there were provisions of statute
declaring the right of public inspection of certain records, and silent as to others, it is also
suggested that the absence of any provision for access by the public to the records of
judgments of the circuit court favors the charge (by the clerk) so far as the records of those
judgments are concerned. The right of the public to free access to the records carries with itthe right to search without charge for the privileges. Nor can a claim on the part of the clerk
to fees for a search not made by himself or his assistant in the records of the judgments of the
circuit court in his office be justified by the fact that no special provision is made for access
by the public to those records. They are no less free to the public by reason of the absence of a
provision declaring the right. They are, in fact, public records, and are public property, kept in
a public place, at the public expense, for the public benefit.
II. As we have said, the statutes of the State of Nevada are sufficient authority upon which
the relator may base its claims to the right of free access and general inspection of all public
records in the office of the respondent. However, independent of any statute declaring such
right or inspection or requiring such record to be kept, the records of a public officer becomesuch public records as are subject to the free and general inspection by the public. (Brown v.
Knapp, 54 Mich. 132; Coleman v. Commonwealth, 25 Grat. Va. 881; State v.Donovan, 10 N.
D. 209; State v. Smith, 74 Iowa, 583; State v. Cummins, 76 Iowa, 136; Parsons v.Randolph,
21 Mo. App. 359;Nash v.Lathrop, 142 Mass. 35;Banks v.Manchester, 23 Fed. 143;Myers
v. Callahan, 20 Fed. 441; Chase v. Sanborn, 4 Cliff. 306;Little v. Gould, 2 Blatchf. 165;
Banks v. West Pub. Co., 27 Fed. 50; Thompson v.Hoblitzelle, 85 Mo. 624.) See, also,Burton
v. Tuite, 78 Mich. 363, 80 Mich. 218;Lum v.McCarty, 39 N. J. Law, 286;Aitcheson v.
Huebner, 90 Mich. 645;Johnson v. Wakulla, 28 Fla. 731, 733; State v.Meeker, 19 Neb. 106;
Speilman v. Flynn, 19 Neb. 346.
III. It should be observed that inspection is only restricted to a particular proceeding where
it is obtained by rule of the court; otherwise when obtained by mandamus; DQGZHKDYHEHHQXQDEOHWRILQGDQ\FDVHZKDWVRHYHU(QJOLVKRU$PHULFDQLQZKLFKDQLQVSHFWLRQZDVGHQLHGWRDQ\RQHZKRKDGDVSHFLDOLQWHUHVWLQWKHVXEMHFWPDWWHURIWKHUHFRUGDQGZH
FKDOOHQJHFRXQVHOIRUWKHUHVSRQGHQWWRILQGDQ\
29 Nev. 50, 52 (1906) State v. Grimes
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the spirit and general policy of the law, or with the claims of business convenience. The great
utility of the professional examiner is a recognized fact, and, with the constantly increasing
complications of land titles, his assistants in their proper adjustment has, in many localities,
become an absolute necessity.
VI. For consideration of the rights of the public in public offices in extreme cases, see
O'Hara v. King, 52 Ill. 303; Parsons v.Randolph, 21 Mo. App. 353.
William Forman, for Respondent:
I. At common law the right to inspect public records, either in person or by an agent, was
confined to those who had an interest in the subject-matter to which the record related. While
it seems that a person seeking an inspection of public records must have such an interest as
will enable him to maintain and defend an action for which the document can furnish
evidence or necessary information, it is not necessary that a case be pending at the time, nor is
it even essential that the interest of such person be private so that he can maintain an action or
defense on his own personal EHKDOIEXWLWZLOOEHVXIILFLHQWWKDWKHFDQSURSHUO\DFWLQ
VRPHDFWLRQLQUHODWLRQWRWKHPDWWHUDVWKHUHSUHVHQWDWLYHRIWKHFRPPRQRUSXEOLFULJKW
29 Nev. 50, 54 (1906) State v. Grimes
behalf; but it will be sufficient that he can properly act in some action in relation to the matter
as the representative of the common or public right. (Ency. Law, 2d ed. vol. 24, p. 182;Rex v.
Merchant Tailors Co., 2 B. & Ad. 115;Brewerv. Watson, 71 Ala. 299;Daily v.Dimock; 55
Conn. 579; State v. King, 154 Ind. 621; Cormackv. Wolcott, 37 Kan. 391; People v. Walker,
9 Mich. 328; People v. Cornell, 35 How. 31; Owens v. Woolridge, 8 Pa. Dist. 305; Caswell's
Request, 18 R. I. 835.)II. The right to inspect public records is not absolute and unrestricted, but must be
exercised subject to such reasonable restrictions as may be imposed by statute or by the
custodian of the records. (Stockman v.Brooks, 17 Colo. 248; Upton v. Catlin, 17 Colo. 546;
Buckv. Collins, 51 Ga. 395;Day v.Button, 96 Mich. 600;Burton v. Tuite, 78 Mich. 363;
Burton v.Reynolds, 102 Mich. 55; State v.Rachac, 37 Minn. 372;Hanson v.Eichstaedt, 69
Wis. 538.)
III. The right of an abstracter or abstract company incorporated for the purpose of
preparing abstracts from the various counties of the state does not seem to have ever been
passed upon by the courts of this state, and there is no power conferred by statute directly
authorizing the inspection of the public records and copying the same by such persons orcorporations. In the absence of any statute authorizing the copying of the records by such a
person or company the court must be governed by common-law rule in regard to the same.
Section 3095, Comp. Laws, is as follows: The common law of England, so far as it is not
repugnant to or in conflict with the constitution and laws of the United States or the
constitution and laws of this state shall be the rule of decision in all courts of this state.
There are various statutes providing for the inspection of certain records by the public, but no
statute conferring upon an individual the right to inspect, search, or copy the records of the
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county, such as is conferred by the statutes of the various states, which have held that an
abstracter corporation chartered for the purpose of making abstracts might examine and copy
the records.
29 Nev. 50, 55 (1906) State v. Grimes
George S. Green, Alfred Chartz, and T. A. A. Siegfriedt, for Relator, in reply:
I. The only statutory provision cited by the respondent in support of his contention is at
the bottom of page 17 and the top of page 18 of his brief, which provides certain fees for
making abstracts of title and searches of the records. Apparently it is not pretended by the
respondent that there are any provisions in the laws of Nevada making it his duty to compile
abstracts of title, and we have failed to find any. The qualifications of searchers of records are
not mean, and a candidate for the office of recorder is not bound to qualify with respect to
them. Recorders are not to be presumed to know the requisites of a sufficient abstract of title;on the contrary, it is probable that one who enters upon the duties of the office of recorder
would more often not know than know. And not being his duty as required by law, he could
not be compelled to furnish an abstract if he should refuse.
II. Further reference is hereby made to statutes of the State of Nevada allowing the free
inspection of public records. (Stats. 1897, p. 78, sec. 3; Stats. 1891, p. 97, sec. 6; Stats. 1866,
p. 202, sec. 8; Comp. Laws, 1613.) For further support of the doctrine that the fee of an
official attaches only upon having performed some service for the individual, see Williams v.
State, 2 Sneed, 162;Henderson v. State, 96 Ind. 441.
By the Court, Talbot, J.:
To what extent is a company engaged in the business of furnishing abstracts and
guaranteeing titles allowed to inspect, examine, and copy the records in the office of the
county recorder, without the payment of fees, is the question presented.
From the petition, answer, and agreed statement of facts it appears that the respondent, as
county recorder, has refused, and unless ordered by this court will continue to refuse, to allow
the relator, or its duly authorized secretary and general manager, either for itself or as agent
for the owner of the property, to inspect, copy, or make memoranda RIWKHUHFRUGRIDVSHFLILHGFHUWLILFDWHRIPLQLQJORFDWLRQDQGRIDFHUWDLQGHHGDQGWKHRWKHUUHFRUGVLQWKHRIILFHRIWKHFRXQW\UHFRUGHURI1\H&RXQW\WKDWWKHUHODWRUVHHNVDQGKDVGHPDQGHGWRLQVSHFWDQGFRS\WKHVHUHFRUGVIUHHRIFKDUJHIRUWKHSXUSRVHRIFRPSLOLQJDQ
LQGHSHQGHQWVHWRIDEVWUDFWERRNVFRYHULQJDOOWKHSURSHUW\SHUWDLQLQJWRWKHVHUHFRUGVZLWKWKHLQWHQWLRQRIVXSSO\LQJDQGVHOOLQJDEVWUDFWVWRLWVFXVWRPHUV
29 Nev. 50, 56 (1906) State v. Grimes
of the record of a specified certificate of mining location, and of a certain deed and the other
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records in the office of the county recorder of Nye County; that the relator seeks, and has
demanded, to inspect and copy these records free of charge for the purpose of compiling an
independent set of abstract books covering all the property pertaining to these records with
the intention of supplying and selling abstracts to its customers.
Respondent was and is willing to permit relator's agent to inspect the records for his
personal use and information, provided that he does not take any compensation or fees fromany other person for so doing, but refuses to allow him or the relator to inspect or copy the
records or the use of relator in preparing abstracts, except upon payment of the fees allowed
by law for making abstracts.
The relator, in the pursuit of its abstracting, record searching, and title guaranty business,
and for the purpose of preparing a set of abstract books, had engaged one man continuously
for three or four months in searching these records, taking memoranda and making copies,
and, if permitted, will continue for three or four months to keep one or more men engaged in
copying, searching, and taking memoranda, and, when the abstract books of relator are
completed, relator will demand the right to inspect and take memoranda from the records of
all conveyances thereafter filed, for the purpose of keeping up to date its abstract books and
for its use in compiling abstracts of title.Relator claims that under our statutes and also under the common law it has a right to
examine and copy all these records. Respondent challenges both these contentions, and
asserts that, as no such privilege is conferred by statute, the common law controls and limits
the right of inspection to persons having an interest in the subject-matter to which the record
relates.
In seeking light and authority on these propositions, we first turn to the statutes, and find
provided in the Compiled Laws:
Sections 2663 and 2664: Every conveyance of real estate, and every instrument of writing
setting forth an agreement WRFRQYH\DQ\UHDOHVWDWHRUZKHUHE\DQ\UHDOHVWDWHPD\EH
DIIHFWHGSURYHGDFNQRZOHGJHGFHUWLILHGDQGUHFRUGHGLQWKHPDQQHUSUHVFULEHGVKDOOIURPWKHWLPHRIILOLQJWKHVDPHZLWKWKHUHFRUGHUIRUUHFRUGLPSDUWQRWLFHWRDOOSHUVRQVRIWKHFRQWHQWVWKHUHRIDQGVXEVHTXHQWSXUFKDVHUVDQGPRUWJDJHHVVKDOOEHGHHPHGWR
SXUFKDVHDQGWDNHZLWKQRWLFH
29 Nev. 50, 57 (1906) State v. Grimes
to convey any real estate, or whereby any real estate may be affected, proved, acknowledged,
certified and recorded in the manner prescribed, shall from the time of filing the same with
the recorder for record, impart notice to all persons of the contents thereof; and subsequent
purchasers and mortgagees shall be deemed to purchase and take with notice.Section 2715: A mortgage upon possessory claims to public lands, all buildings and
improvements upon such lands, all quartz and mining claims, and all such personal property
as shall be fixed in its structure to the soil, acknowledged in manner and form as mortgages
upon real estate are required by law to be acknowledged and recorded in the office of the
county recorder in which the property is situated, shall have the same effect against third
persons as mortgages upon real estate.
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Section 2705 directs the several county recorders to procure suitable books at the expense
of the county in which all chattel mortgages shall be recorded, and provides that such books
shall, at all times, be open to the public for inspection.
Section 2718: All instruments of writing now copied into the proper books of record of
the office of the county recorders of the several counties of this territory, shall, after the
passage of this act be deemed to impart to subsequent purchasers, and all other personswhomsoever, notices of all deeds, mortgages, powers of attorney, contracts, conveyances or
other instruments, notwithstanding any defect, omission, or informality existing in the
execution, acknowledgment or certificate of recording the same.
Section 2730