Holographic Wills Valid.

3092. SECTION 1.

An Act relating to holographic wills.

Approved March 20, 1895, 112.

Property may be disposed of and taken under holographic wills. Such wills shall be valid and have full effect for the purpose for which they are intended.

Holographic Will Defined.

3093. SEC. 2. An holographic will is one that is entirely written by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state and need not be witnessed.

How Proved.

3094. SEC. 3. An holographic will may be proved in the same manner as other private writings are proved.

Application of Common Law.

CIVIL PRACTICE.

An Act adopting the common law.
Approved January 24, 1883, 14.

3095. SECTION 1. 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 the courts of this state.

1. THE COMMOM LAW OF ENGLAND, as adopted in this country, is usually to be taken as modified by English statutes passed prior to the Declaration of American Independence. Hamilton v. Kneeland, 1 Nev. 40, affirmed; Clarke v. Clarke, 17 Nev. 124.

COMMON LAW RULE. Condition cannot be reserved to any but the grantor and his heirs, not recognized as law in this country. 1 Nev., supra.

CONDITION BROKEN. Statute 32, Henry VIII, providing for entering, upon condition broken, is applicable not only to breach of condition in law but also in deed. Id.

2. ENGLISH STATUTE in force prior to Declaration of Independence part of common law Evans v. Cook, 11 Nev. 69, affirming Ex Parte Blanchard, 9 Nev. 105.

3. COMMON LAW-Relating to Marriage and Divorce Adopted. Wuest v. Wuest, 17 Nev. 217.

4. COMMON LAW-QUO WARRANTO-When Will Lie. Ryan v. Cronan, 23 Nev. 437.

An Act to regulate proceedings in civil cases in the courts of justice of this state, and to repeal all other Acts in relation thereto.

Approved March 8, 1869, 196.

TITLE I.

The provisions of this title as to parties to actions are made applicable to justices' courts, by Section 509 of this Act.

Of the Form of Civil Actions and the Parties Thereto.

One Form of Action.

3096. SECTION 1. There shall be in this state but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs.

Designation of Parties.

3097. SEC. 2. In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

Question of Fact Not Put in Issue by Pleadings.

3098. SEC. 3. When a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial.

Actions, by Whom Prosecuted.

3099. SEC. 4. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this Act.

1. PARTY FOR WHOSE BENEFIT CONTRACT IS MADE MAY SUE. Alcalde v. Morales, 3 Nev. 137; Miliani v. Tognini, 19 Nev. 133.

2. ASSIGNEE OF JUDGMENT-Proper Party. Mandlebaum v. Gregovich, 24 Nev.

Set-Off Not Prejudiced by Assignment.

3100. SEC. 5. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense, existing at the time of, or before notice of, the assignment; but this section shall not apply to a negotiable promissory note, or bill of exchange, transferred in good faith, and upon good consideration, before due.

Action by Executor, etc.

3101. SEC. 6. An executor or administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person or persons for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.

Married Woman a Party.

3102. SEC. 7. When a married woman is a party, her husband shall be joined with her, except that: First-When the action concerns her separate property, she may sue alone. Second-When the action is between herself and her husband, she may sue or be sued alone.

ACTION NOT MAINTAINABLE BY MARRIED WOMAN PLAINTIFF WITHOUT PROPER AVERMENTS. In a suit where the complaint was amended, but without adding any averments of her right to sue alone: Held, that the admission of evidence on such an amended complaint against defendant's objection was error. Warren v. Quill, 8 Nev. 218.

Defense by Wife.

3103. SEC. 8. If a husband and wife be sued together, the wife may defend for her own right.

Infant, When a Party.

3104. SEC. 9. When an infant is a party, he shall appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a Judge thereof.

Guardian, When Appointed.

3105. SEC. 10. The guardian shall be appointed as follows: First-When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or, if under that age, upon the application of a relative or friend of the infant. Second-When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant.

Injury to Child, Action For.

3106. SEC. 11. A father, or, in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward.

SUIT BROUGHT BY MOTHER AS GUARDIAN-Ward Attains Majority Before Trial-No Joint Action Arises-Ward Should Have Been Substituted. Ricord v. C. P. R. Co., 15 Nev. 167.

Who May Be Joined as Plaintiffs.

3107. SEC. 12. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this Act.

Defendant, Who to Be Made.

3108. SEC. 13. Any person may be made a defendant, who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.

Parties, Who Joined.

3109. SEC. 14. Of the parties to the action, those who are united in interest shall be joined as plaintiffs or defendants; but if the consent of any one, who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. Tenants in common, joint tenants, or copartners, or any number less than all, may jointly or severally bring or defend or continue the prosecution or defense of any action for the enforcement of the rights of such person or persons.

1. TENANTS IN COMMON may join in action to recover common property. Alford v. Dewin, 1 Nev. 207.

SEVERING OF INTEREST PENDING LITIGATION does not abate suit. Id.

2. PERSONS JOINTLY LIABLE must all be made defendants and a joint judgment rendered against all. Keller v. Blasdel, 1 Nev. 492.

3. PARTIES-NON-JOINDER OF PLAINTIFFS, HOW PROPERLY PLEADED. An objection of nonjoinder of parties plaintiff cannot be taken by demurrer unless the complaint atfirmatively shows that the party for whose non-joinder the demurrer is interposed was living when the suit was commenced. If this fact does not appear on the face of the complaint, the objection must be taken by answer. Deegan v. Deegan, 22 Nev. 186. SAME-ANSWER MUST SHOW PARTY LIVING. An allegation in an answer of the non-joinder of proper parties plaintiff, is defective when it does not show that the omitted party or parties were living at the date of the filing of the complaint. Id.

4. WHERE ONE OF SEVERAL JOINT CONTRACTORS DIES, the survivors may be proceeded against without uniting the representatives of the deceased. Fowler v. Houston, 1 Nev. 469.

5. ACTION BETWEEN PARTNERS-WHEN ONE NOT A NECESSARY PARTY. Third partner nonresident whose interest not prejudiced by present action. Beck v. Thompson, 22 Nev. 109. 6. WATER SUIT-WHO MAY UNITE IN. Although parties who have separate interests in the water of a stream cannot unite in an action for damages for its past diversion, they may unite in an action to restrain future diversions. Ronnow v. Delmue, 23 Nev. 29.

7. DEFECT OF PARTIES-ACTION TO SET ASIDE TRUST DEED. Where one beneficiary brings suit all other beneficiaries are necessary parties; if they refuse to join as plaintiffs they must be made defendants. Robinson v. Kind, 23 Nev. 330; Bliss v. Grayson, 24 Nev.

8. DEFECT OF PARTIES--EFFECT ON JUDGMENT. Where, owing to a defect of parties before the court upon such a writ, any judgment that might be entered would not be binding upon the real parties in interest, the writ will be dismissed. State v. Com. Washoe Co., 23 Nev. 247.

9. WIFE NOT PARTY TO ACTION TO RECOVER COMMON PROPERTY. Crow v. Van Sickle, 6 Nev. 146.

10. DISSOLUTION OF COPARTNERSHIP--When Wife Is a Necessary Party Defendant. Rhodes v. Williams, 12 Nev. 20.

11. STATE PROPER PARTY PLAINTIFF IN DELINQUENT SCHOOL TAX SUIT. State v. First Nat. Bank (No. 3), 4 Nev. 491.

12. PROPER AS DISTINGUISHED FROM NECESSARY PARTIES. Holder of mechanic's lien attaching prior to a mortgage is a proper but not a necessary party to pass the legal title to a purchaser under the decree. In Re Smith, 4 Nev. 254.

13. PARTY IN POSSESSION OF LAND may maintain action for interference with his rights. Simpson v. Williams, 18 Nev. 432.

14. PARTNERS CANNOT SUE IN PARTNERSHIP NAME. Mexican Mill Co. v. Yellow Jacket M. Co., 4 Nev. 40.

15. INTEREST OF PLAINTIFF-When Sufficient to Maintain Action. White Pine Co. Bank v.
Sadler, 19 Nev. 98.

16. NON-JOINDER OF DEFENDANTS IN ACTIONS EX DELICTO. In action for damages for tres-
pass all or any of the guilty parties may be sued. Mandlebaum v. Russell, 4 Nev. 551.
17. PERSONS NOT INTERESTED NOT TO BE PLAINTIFFS-Replevin Bond-Sheriff Not Interested.
McBeth v. Van Sickle, 7 Nev. 134.

18. MISJOINDER OF PARTIES PLAINTIFF. Fogg v. N. C. O. R. Co., 20 Nev. 429.

Separately or Jointly Liable.

3110. SEC. 15. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all, or any of them, be included in the same action, at the option of the plaintiff.

JOINT ACTION AT LAW cannot be maintained against survivor and administrator of deceased joint maker of a promissory note. Action against survivor. On joint and several note representative of deceased maker may be sued on several liability. Maples v. Geller, 1 Nev. 233.

Action Does Not Abate by Death of Party.

3111. SEC. 16. An action shall not abate by the death or other disability, of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or disability of a party, the court, on motion, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. After verdict shall have been rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.

1. ASSIGNEE OF ACCOUNT may sue in his own name. Assignor need not be made a party though he have interest. Carpenter v. Johnson, 1 Nev. 331.

2. SUBSTITUTION OF ASSIGNEE AS PLAINTIFF. Under above section not necessary for assignee to file supplemental complaint. Assignee takes place of original plaintiff. Original plaintiff estopped from denying transfer, when. Virgin v. Brubaker, 4 Nev. 31.

3. PLAINTIFF'S RIGHT TO SUE--MAINTENANCE. The assignment of a bare right to file a bill in equity for a fraud committed on the assignor cannot be maintained in the name of the assignee. It is contrary to public policy and savors of the character of maintenance. Gruber v. Baker, 20 Nev. 453.

Controversy Determined, When.

3112. SEC. 17. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in, and thereupon the party directed by the court shall serve a copy of the summons in the action, and the order aforesaid in like manner of service of the original summons, upon each of the parties ordered to be brought in, who shall have ten days, or such time as the court may order, after service, in which to appear and plead; and in case such party fail to appear and plead within the time aforesaid, the court may cause his default to be entered, and proceed as in other cases of default, or may make such other order as the condition of the action and justice shall require.

1. ACTION BETWEEN TENANTS IN COMMON. Court may order all necessary parties into court. Mitchell v. O'Neale, 4 Nev. 504.

2. ABOVE SECTION CONSTRUED. Robinson v. Kind, 23 Nev. 330; Bliss v. Grayson, 24 Nev.

TITLE II.

Of the Place of Trial of Civil Actions.

Venue of Actions Determined by Subject of Action.

3113. SEC. 18. Actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this Act: FirstFor the recovery of real property, or of an estate, or interest therein, or for the determination in any form of such right or interest, and for injuries to real property. Second-For the partition of real property. Third-For the foreclosure of a mortgage of real property; provided, that where such real property is situate partly in one county and partly in another, the plaintiff may select either of said counties, and the county so selected shall be the proper county for the trial of any or all of such actions as are mentioned in the first, second, and third subdivisions of this section.

Robinson v. Kind, 23 Nev. 330.

Venue of Action Determined by Cause of Action.

3114. SEC. 19. Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial: First-For the recovery of a penalty or forfeiture. imposed by statute; except, that when it is imposed for an offense committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed. Second-Against a public officer, or person especially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command, or in his aid, does anything touching the duties of such officer.

Residence of Parties Determines Place of Trial.

3115. SEC. 20. In all other cases, the action shall be tried in the county in which the defendants, or any one of them, may reside at the commencement of the action; or, if none of the defendants reside in the state, or if residing in the state, the county in which they so reside be unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint; and if any defendant, or defendants, may be about to depart from the state, such action may be tried in any county where either of the parties may reside or service be had, subject, however, to the power of the court to change the place of trial, as provided in this Act.

1. DEFENDANT'S RIGHT OF TRIAL AT HIS RESIDENCE. A defendant who comes within the purview of Sec. 20 of the Practice Act is entitled, as a matter of right, to have an action against him tried in the county of his residence; the statute is peremptory. Williams v. Keller, 6 Nev. 141.

DISCRETION AS TO CHANGE OF PLACE OF TRIAL. As a general rule, the matter of change of place of trial is within the discretion of the court; but when the motion to change is made on the ground of the residence of defendant (Practice Act, Sec. 20), there is no room for the exercise of discretion. Id.

WAIVER NOT PRESUMED EXCEPT IN CLEAR CASE. The legal presumption of a waiver of any right by a litigant will not be drawn except in a clear case, and especially not when to allow such a presumption would be to deprive a party of his day in court. Id.

Civil Cases-May Change Place of Trial, When.

3116. SEC. 21. If the county designated for that purpose in the complaint be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant before the time for answering expire demand in writing that the trial he had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section. The court may, on motion, change the place of trial in the following cases: First-When the county designated in the complaint is not the proper county.