RJM REPLY MO2STRIKE 013119 F PDF

ROPP
1 RICHARD J. MATHIAS
P. O. Box 364923
2
North Las Vegas, NV 89036
3 (562) 907-8571
rich@richmathias.net
4 PLAINTIFF PRO SE
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DISTRICT COURT
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CLARK COUNTY, NEVADA
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8
RICHARD J. MATHIAS, an Individual, ) Case No.: 18-A-778812-C
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)
10 Plaintiff, ) Assigned to:
) Hon. Kenneth C. Cory
11 vs. ) (Dep’t. 1 / Courtroom 16A)
)
12 JOSEPH T. NOLD, an Individual; ) PLAINTIFF’S REPLY IN SUPPORT OF
13 ACCELERATED LAW GROUP, INC., dba ) HIS MOTION TO STRIKE
ACCELERATED ESCROW COMPANY, a ) DEFENDANTS’ ANSWER TO
14 Nevada Corporation; RONALD K. QUINN, ) AMENDED COMPLAINT,
an Individual; ANITA JACKSON, an ) AFFIRMATIVE DEFENSES,
15 Individual; LORI-LYNNE K. CRUZ, an ) COUNTERCLAIM, AND THIRD
Individual; ROBERT LUND, an Individual; ) PARTY COMPLAINT FILED HEREIN
16 MOUNIR BOUSAID, an Individual; ) ON NOVEMBER 27, 2018.
17 JEFFREY D. NYMAN, an Individual; DOES )
1 THROUGH 10, INCLUSIVE, and ROE ) Date: February 7, 2019
18 CORPORATIONS 1 THROUGH 10, ) Time: 3:00 pm
INCLUSIVE, )
19 ) DEPARTMENT 1
Defendants. ) (Courtroom 16A)
20 )
21 _____________________________________ )
)
22 AND RELATED COUNTERCLAIM AND )
THIRD-PARTY ACTION )
23 _____________________________________ )
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Plaintiff’s Reply in Support of Motion to Strike Answer Page 0
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Plaintiff filed his motion to strike defendants’ answer to the plaintiff’s verified first amended
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complaint for one reason and one reason only: the answer filed on November 27, 2018, was not
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verified by each party defendant. Instead, the three defendants filed a single answer signed only by
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their lawyer, Mr. Grigsby.
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A. Nevada Statutory Law & Policy Require Defendants to File a Verified Answer to
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the Verified First Amended Complaint
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It has been the established statutory law and policy of this State since at least 1911 that a
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party responding by answer to a verified complaint must file a verified answer.
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As the Supreme Court noted in Scheinwald v. Bartlett, 271 P. 468 (1928): “Section [118] of the
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Civil Practice Act provides:
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‘Every pleading shall be subscribed by the party or his attorney, and
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when the complaint is verified by affidavit the answer and reply shall
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be verified also, except as provided in the next section.’”
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Scheinwald, 271 P. 468 (emphasis added). 1 [Attached as Exhibit B].
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In the Scheinwald case, defendant had filed an unverified answer in response to the verified
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complaint. Given the statutory language of section 118, 2 which courts had applied strictly to
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disregard an unverified answer filed in response to a verified complaint, the plaintiff orally
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1
The “next section” referenced by the Court was to section 119, which provided for an exception to the verification
21 rule in cases where signing the verification would be self-incriminating in a future felony prosecution. Scheinwald,
271 P. at 468. As discussed below, infra note 3, the exception has no application here because the State Legislature
22 repealed section 119 in the 1939 Revision to the Compiled Laws.
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2
Technically speaking, it should be noted that the Court’s reference to “Section 5060” erroneously associated that
24 section number as being the section of the Civil Practice Act of 1911. It was not. Rather, the Court’s reference to
“Section 5060” was actually to the precise section of the Revised Laws of 1912, in which Section 118 of the Civil
25 Practice Act of 1911 was formally published in Volume II of the State’s Revised Laws. See R. Mathias Decl., ¶ 5 - 9
& Exh. A (Legislative Counsel’s Digest Report and interpretive legend under NRS 15.010, the present day rendering
26 of former section 5060 of the Revised Laws of 1912 and section 8620 of the Compiled Laws of Nevada (1931-1941
Supplement) (1941).
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1 requested that the court enter defendant’s default.
2 Instead, the trial court granted defense counsel’s request for leave to file an unverified
3 answer, which he would then follow with a written motion for leave to file a verified answer. Upset
4 that the court allowed defendant to file a late verified answer, plaintiff filed a Petition for
5 Extraordinary Writ seeking an order of the Supreme Court directing the trial court to enter a default
6 judgment.
7 While denying the writ petition on the grounds that the trial court has wide vested discretion
8 to allow the filing of an untimely answer, the Supreme Court clearly confirmed the import of
9 section 118:
10 It is also clear, from the first statutory citation herein-above [to
11 section 118], that the answer, being unverified, contrary to the
12 mandatory requirement of the statute, is, therefore, no answer at
13 all.
14 Scheinwald, 271 P. 468 (emphasis added).
15 The Supreme Court’s holding in Scheinwald has been consistently followed for decades.
16 For example, in Opaco Lumber v. Phipps, 340 P.2d 95 (1959) [attached as Exh. C], plaintiff filed
17 a verified complaint in an action to enforce a mechanic’s lien. When defendant failed to timely
18 plead, plaintiff filed a written request for entry of default. The request for default reminded defense
19 counsel that he might want to answer the complaint; so he filed it soon after the requested default
20 had been filed. The clerk never entered the default and thus plaintiff filed a motion to strike the
21 answer as being untimely, which motion was denied by the trial court.
22 Following its reasoning in Scheinwald, the Court affirmed the discretion of the trial court
23 to allow a late-filed verified answer to the verified complaint. Opaco Lumber, 340 P.2d 95, 97. In
24 both of these cases, the Supreme Court not only affirmed the core principle that a defendant must
25 respond to a verified complaint by filing a verified answer – a requirement of section 118 of the
26 Civil Practice Act of 1911 -- but the Court also confirmed the propriety of the precise relief that
27 plaintiff is seeking in this motion today.
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1 Specifically, unlike the two plaintiffs in Scheinwald and Opaco Lumber, who made
2 motions to strike verified answers that were filed late and to have the court enter default judgments
3 against them, the plaintiff in this action is requesting that this Court strike an unverified answer
4 and merely issue an Order requiring that each named defendant file a verified answer within 10
5 days. That outcome is precisely what the Supreme Court affirmed in both cases and it is the
6 pragmatic way to deal with these defendants’ failure to file an answer. Accord Rae v. All American
7 Life & Casualty Co., 605 P.2d 196 (Nev. 1979) (plaintiff objecting to unverified answer required
8 to move under rule 12(f) for court order striking that answer and directing defendant to file a
9 verified answer).
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11 B. While the Explicit Language of Section 118 of the Civil Practice Act of 1911 Was
12 Not Restated in the Nevada Revised Statutes in 1957, The Requirement that Defendants File
13 a Verified Answer Remains a Clear, Binding Ingredient of the Nevada Common Law Under
14 Scheinwald, Opaco Lumber, and NRS 15.010
15 The statutory foundation established by section 118 of the Civil Practice Act of 1911
16 underlying the early statutory policy requiring a verified answer in response to a verified complaint
17 was expressly transitioned into our existing statutory system by the State Legislature’s adoption of
18 Chapter 15 of the Nevada Revised Statutes (NRS) in 1957, NRS §§ 15.010, et seq. Moreover, the
19 Supreme Court’s adoption of that requirement in Scheinwald and its progeny clearly establishes
20 that requirement within the State’s common law. See, e.g., Shadow Hills Homeowners Ass’n, Inc.
21 v. New York Community Bankcorp Inc. 366 P.3d 1105, 1112 (Nev. 2016) (holding that specific
22 aspects of statutes enacted prior to 1957 revision, but not re-printed in the NRS version,
23 nonetheless remain valid expressions of the state’s common law unless expressly repealed or
24 repudiated by court decision).
25 1. NRS 15.010 Manifests The Spirit of Section 118 of the Civil Practice Act of
26 1911. Specifically, NRS 15.010 (Verification of Pleadings) is a 5-paragaph rendering of the
27 State’s pleading verification law, the first four parts of which were derived from sections 118 - 122
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1 of the Civil Practice Act of 1911, which sections were originally recorded as sections 5060 – 5064
2 of the 1912 Revised Laws of Nevada, and thereafter continued at section 8620 of the Nevada
3 Compiled Laws (1931 – 1941 Supplement) (1941). See R. Mathias Decl. & Exh. A (providing a
4 complete Legislative History and Digest, with copies of all corresponding enactments of the
5 Legislature, of NRS 15.010 and its legislative sources of origin from 1911 to present).
6 2. The Nevada Supreme Court Has Expressly Incorporated The Verified
7 Answer Requirement into the State’s Common Law Jurisprudence. Since its formal
8 enactment in 1911, section 118 of the Civil Practice Act has been relied upon by the State Supreme
9 Court – and re-affirmed by the Court as the established public policy of this State – dating back to
10 its 1928 decision in Scheinwald. That reliance continued past the 1957 NRS revision in Opaco
11 Lumber (decided in 1959) through Gregerson v. Collins in 1964.
12 In fact, the Court’s Rule 11 jurisprudence that expressly holds non-compliant answers and
13 other pleadings to be void ab initio rests on the same rationale upon which Section 118 was initially
14 enacted by the Legislature in 1911. See Washoe Medical Center v. State, 122 Nev. 1298 (2006)
15 (concluding that, “under NRS 41A.071, a complaint filed without a supporting medical expert
16 affidavit is void ab initio and must be dismissed;” thus because a void complaint does not legally
17 exist, it cannot be amended). In that case the Court held that NRCP 15(a) does not apply to permit
18 the filing of an amended complaint such that an NRS 41A.071 defect cannot even be cured through
19 amendment.
20 There is also another category of cases in which the Nevada Supreme Court consistently
21 applies this rule of pleading: attorney discipline. In In Re: Joiner, 381 P.3d 624 (2012), the Court
22 expressly ruled that the allegations contained in the State Bar’s formal complaint against attorney
23 Joiner were deemed admitted sufficient to support his disbarment when he failed to file a verified
24 answer to the verified complaint. In its opinion, the Court rejected the defendant’s unverified
25 answer as being a “non-existent response” within the meaning of Supreme Court Rule 105(2) and
26 constituted “a failure to plead” against the complaint. The Court then affirmed the
27 recommendation for disbarment, noting that Joiner had failed to even file an opposition to the State
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1 Bar’s motion to strike his unverified answer.
2 C. The Language of Section 118 of the Civil Practice Act is Virtually Identical to
3 California, Illinois, and Virtually all Other States.
4 This express rule, first set forth in Section 118 of the Nevada Civil Practice Act of 1911,
5 contains virtually the same language as California Code of Civil Procedure section 446, which
6 states that “. . . when the complaint is verified, the answer shall be verified.” Cal. Code Civ. Proc.
7 § 446(a) (2010); See Practice Guide, attached as Exhibit D. California law also provides for a
8 motion to strike unverified answers as the proper vehicle to remedy an improper answer. See Cal.
9 Code Civ. Proc. §§ 446, 435(b); see also “Answer to a Verified Complaint in California,”
10 Legaldocspro Blog (Oct. 1, 2018); “Motion to Strike an Answer in California,” Legaldocspro
11 Blog, Dec. 13, 2017) [attached as Exhibit D]. In fact, the Revision Counsel noted in its annotation
12 in 1912 that Section 118 followed section 446 of California’s Code of Civil Procedure. See Exh.
13 A, p. 18-19.
14 In addition to California, the State of Illinois also requires that a defendant file a verified
15 answer to a verified complaint. See, e.g., Marren Builders, Inc. v. Lampert, 302 Ill.App.3rd 937,
16 942 (1999) [attached as Exhibit E]; see also Responsive Pleadings: Counterclaims & Related
17 Content (Illinois), Westlaw Practice Note Series (2016) [attached as Exhibit F]. The Courts in
18 Nevada are consistent with California, Illinois, and other states with similar statutes in holding that
19 filing an unverified answer is like “having filed no pleading at all.” Gregerson v. Collins, 396 P.2d
20 27 (Nev. 1964); DeCamp v. First Kensington Corp. 83 Cal. App. 3rd 268 (1978) [Exh. G]3;
21 Armstrong v. Freeman United Coal Mining Co., 112 Ill. App. 3rd 1020, 1023 (1983) [Exh. H].
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The DeCamp opinion by the California Appeals Court confirms a striking parallel in the evolution of
24 California’s statute requiring that defendants file a verified answer in response to a verified complaint. Specifically,
the Court noted a legislative amendment to California’s CCP section 446 passed in 1933 that eliminated an exception
25 to the requirement in cases when signing a verified answer might incriminate a responding defendant. DeCamp, 83
Cal. App. 3rd at 275-77 [Exh. E]. The Nevada State Legislature made a similar amendment to the Civil Practice Act of
26 1911 when it repealed section 113 of the Act in the 1939 Revision to Section 5061 of the Compiled Laws of Nevada
(1931 – 1941 Supplement) (1941). Like California, the Nevada Legislature removed the exception for potential self-
27 incrimination in view of United States Supreme Court rulings confirming that a state could not use evidence of a
person’s coerced civil testimony in a criminal prosecution. DeCamp, 83 Cal. App. 3rd at 275-77 [Exh. E].
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1 D. Plaintiff’s Motion to Strike Should be Granted Given the Clear Statutory and
2 Common Law Requirement That a Verified Answer Must be Filed in Response to a Verified
3 Complaint.
4 On November 5, 2018, plaintiff filed his verified first amended complaint pursuant to this
5 Court's order dated October 16, 2018. In response, counsel for defendants filed a document
6 captioned “answer to amended complaint, affirmative defenses, counterclaim, and third-party
7 complaint. Defense counsel, Mr. Grigsby, signed the answer on behalf of his clients.
8 However, neither Joseph T. Nold nor Ronald Quinn, the two named individual defendants,
9 signed a proper statutory verification of their answer as State law requires. The failure of
10 defendants to file a timely verified answer should technically result in the Court entering an order
11 of default. However, our Supreme Court has consistently held that trial courts should permit an
12 opportunity for defendants to cure the defect and avoid the entry of default. Gregerson v. Collins,
13 396 P.2 27 (Nev. 1964); Rae v. All American Life & Casualty Co., 605 P.2d 196 (Nev. 1979).
14 Plaintiff respectfully requests, therefore, that this Court grant this motion to strike the answer
15 defendants filed in its entirety. This is significant because defendants not only filed an unverified
16 answer, but included, within that defective answer, an amended counterclaim and an amended third
17 party complaint, neither of which was verified. For these reasons, the Court should grant plaintiff’s
18 motion to strike all counterclaims and the third party claims with direction that defendant ALG be
19 required to file corrected, proper, verified counterclaims or third party claims within 10 days.
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21 Dated: January 31, 2019: RICHARD J. MATHIAS

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By: Richard J. Mathias
25 PLAINTIFF Pro Se
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Declaration of Richard J. Mathias
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5 I, RICHARD J. MATHIAS, testify as follows:
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1. I am the plaintiff in the captioned civil matter and I representing myself in pro per.
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I am a resident of the County of Clark, State of Nevada, and I personally drafted this declaration
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9 filed in support of plaintiff’s motion to strike defendants’ answer to my verified first amended
10 complaint filed on November 27, 2018.
11 2. I have personal knowledge of the factual statements set forth herein and I verify that
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all facts stated in this document are true and correct to the best of my personal knowledge and
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recollection as of the date executed. Where I have indicated that a fact is stated based on
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information and belief, as to those facts, I am informed and believe them to be true.
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3. All documents attached to this declaration as exhibits are personally known to me to
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17 be true and correct copies of the originals from which they have been photocopied. Each
18 document is a true, correct, and complete, authentic copy of the original document and I have
19 personally reviewed each page of each document to ensure authenticity, completeness, and
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genuineness. If called to testify in this matter, I could and would competently testify under oath
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confirming the factual basis for foundational admissibility of each document into evidence
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pursuant to the Nevada State Rules of Evidence.
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24 4. I have attached to this declaration as Exhibit A a complete current copy of the
25 Legislative Counsel’s Preface to the Nevada Revised Statutes. Of particular interest and
26 relevance to this motion, the “Legislative History” section at pages 5 – 7 confirms the historical
27 chronology of the particular codifications of Nevada law, from enactment by the Legislature
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through the Governor’s approval and into publication. This history confirms the legends and
1
2 indices used by the various revisers and counsel whose task it was to document Nevada statutory
3 law from its early days as a territory, through 1864 when it was admitted to the Union, and
4 progressing into the modern age.

5 5. At page 16 of Exhibit A I have included a one-page printout of the current version
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of Chapter 15 of the Nevada Revised Statutes. This Chapter consists of four subdivisions, of
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which the first is NRS 15.010, labeled “Verification of Pleadings.” At the end of the statute the
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legislative digest counsel included a bracket citation the specifies the history of the section. The
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10 bracketed history is reprinted here: “[1911 CPA § 122; A 1939, 20; 1931 NCL § 8620] — (NRS
11 A 1969, 180)].” Based on the registered abbreviations index set forth in the Counsel Preface at
12 pages 5 – 7, I personally interpolated this legislative history as follows: “NRS 15.010 is derived
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from section 122 of the Civil Practice Act of 1911; that that section was amended by the Statutes
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of Nevada 1939, at page 20, which amendment subsequently appeared in Nevada Compiled Laws
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1931-41 Supplement (1941) § 8620; and was last amended by Statutes of Nevada 1969, at page
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180.
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18 6. At pages 17 – 21 of Exhibit A I have attached pages the cover page of the Nevada
19 Revised Statutes of 1912 [p.17]; pages 1475 – 76 thereof, containing Chapter 15 entitled
20 “Verification”, consisting of sections 5060 – 5064 thereof, which published sections 118 through
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122 of the Civil Practice Act of 1911 [pp.18-19]; and pages 1188 and 1189 of the Nevada
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Compiled Laws 1931 – 1941 – Supplement (1941), which contains all amendments and
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annotations to sections 105 through 122, inclusive, of the Civil Practice Act of 1911 at sections
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25 8603 through 8620, inclusive [pp.20-21]. Finally, at page 23 of Exhibit A I have attached a copy
26 of the last referenced amendment to NRS 15.010 enacted in 1969 and recorded at Statutes of
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Nevada 1969, at page 180 (the 1969 amendment added new subdivision (5) to the existing text of
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2 NRS 15.010).
3 7. The complete legislative history of NRS 15.010 represented by the statutory
4 documents attached at Exhibit A is only one part of the necessary inquiry. My review of Supreme
5 Court decisions applying all of the provisions of Chapter 15 of the Civil Practice Act of 1911 –
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sections 118 through 122, inclusive, revealed both Scheinwald v. Bartlett, 271 p. 468 (1928)
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[attached as Exhibit B] and Opaco Lumber v. Phipps, 340 P.2d 95 (1959) [attached as Exhibit C].
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Those two cases firmly embraced the stated requirement of Section 118 that a verified answer be
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10 filed in response to a verified complaint. In fact, in Scheinwald, the Supreme Court concurred
11 with the trial court in finding that the filing of an unverified answer was tantamount to the
12 defendant having filed no answer at all. Accord In Re: Joiner 381 P.3rd 624 (2012) (respondent’s
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filing of unverified answer to verified complaint deemed to constitute “a failure to plead against
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the complaint” warranting the Court’s reliance on SCR 105(2) in deeming the allegations of said
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complaint to be true, leading to disbarment).
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8. My review of the disposition of Chapter 15 of the Civil Practices Act of 1911 into
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18 the 1957 Revision of the State law into the current “Nevada Revised Statutes” yielded several
19 conclusions. First, while the legislative history of NRS 15.010 includes reference to it being
20 derived from section 122 of the Civil Practice Act of 1911, it is textually apparent that it also
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derived in part from sections 118 through 121. This conclusion follows from the fact that these
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latter sections were never repealed and their policies are consistent with those expressed in NRS
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15.010, although not as artfully as they could have been. Second, the official legislative history
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25 published by the counsel’s office under the current text of NRS 15.010 is incomplete and
26 inaccurate in one key respect.
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9. As one can plainly see in the 1912 Revised Laws, pages 18-19 of Exhibit A, all of
1
2 Chapter 15 of the Civil Practice Act of 1911 was published, including section 122. Yet, for some
3 reason, the Legislative Counsel failed to include that root statutory reference in the official
4 digested history. Instead, the official digest refers to the 1939 amendment being published as
5 section 8620 of the Nevada Compiled Laws 1931 – 1941 – Supplement (1941), while completely
6
omitting the original published text contained at section 5064 of the 1912 Revised Laws.
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10. By omitting reference to its source enactment vehicle, namely sections 5060
8
through 5064 of the 1912 Revised Laws of Nevada, the Legislative Counsel potentially under-
9
10 reported the intended statutory source (and thus the scope) of NRS 15.010, a fact which may also
11 explain the rather fragmented construct of NRS 15.030 – 15.050, none of which sections bear any
12 relation to NRS 15.010, the subdivision’s title, or its historical content.

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11. Nonetheless, my complete review of the legislative history of the Civil Practice Act
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of 1911, Chapter 15 thereof, and Supreme Court cases applying its provisions from 1928 through
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the present, reveal that NRS 15.010 and the State’s common law require a responding defendant
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to file a verified answer when pleading against a verified complaint.
17
18 12. Attached as Exhibit D are two practice guide articles, “Answer to a Verified
19 Complaint in California,” Legaldocspro Blog (Oct. 1, 2018); “Motion to Strike an Answer in

20 California,” Legaldocspro Blog, Dec. 13, 2017).
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13. I have Attached as Exhibit E the cited Illinois case of Marrien Builders, Inc. v.
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Lampert, 302 Ill.App.3rd 937, 942 (1999).
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14. I have attached as Exhibit F a helpful practice guide from Westlaw entitled
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25 Responsive Pleadings: Counterclaims & Related Content (Illinois), Westlaw Practice Note Series
26 (2016).
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15. Attached as Exhibit G is DeCamp v. First Kensington Corp. 83 Cal. App. 3rd 268
1
2 (1978), and attached as Exhibit H is another case from Illinois called Armstrong v. Freeman
3 United Coal Mining Co., 112 Ill. App. 3rd 1020, 1023 (1983)
6 For the foregoing reasons, I respectfully urge the Court to grant this motion to strike.
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8 Dated: January 31, 2019: RICHARD J. MATHIAS
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PLAINTIFF Pro Se
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25 PLAINTIFF’S REPLY IN SUPPORT OF HIS MOTION TO STRIKE

DEFENDANTS’ ANSWER TO AMENDED COMPLAINT - 15 -
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LEGISLATIVE COUNSEL'S PREFACE

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History and Objectives of the Revision
Nevada Revised Statutes is the result of the enactment, by the 45th Session of the Legislature of the State of
Nevada, of chapter 304, Statutes of Nevada 1951 (subsequently amended by chapter 280, Statutes of Nevada 1953,
and chapter 248, Statutes of Nevada 1955), which created the Statute Revision Commission and authorized the
Commission to undertake, for the first time in the state's history, a comprehensive revision of the laws of the State
of Nevada of general application. Although revision was not commenced until 1951, the need for statutory revision
had been recognized as early as 1865 when an editorial published in the Douglas County Banner stated:
One subject which ought to engage the early, and serious consideration of the Legislature, about to
convene, and one which should be acted upon without delay, is the revision and codification of the laws of
Nevada. Amendment has been added to amendment, in such manner as to leave, in many instances, the
meaning of the Legislature, that last resort of the jurist, in determining the application of the law, more than
doubtful * * *. The most serviceable members of the Legislature will be those gentlemen who will do
something toward reducing to order our amendment-ridden, imperfectly framed and jumbled up statutes at
large.
From 1861 to 1951 the Legislature made no provisions for statutory revision, although during that period 8,423
acts were passed by the Legislature and approved by the Governor. During the period from 1873 to 1949 eight
compilations of Nevada statutes were published. “Compiling” must be distinguished from “revising.” Ordinarily,
the “compiling” of statutes involves the following steps: Removing from the last compilation the sections that have
been specifically repealed since its publication; substituting the amended text for the original text in the case of
amended sections; inserting newly enacted sections; rearranging, to a limited extent, the order of sections; and
bringing the index up to date.
“Revising” the statutes, on the other hand, involves these additional and distinguishing operations: (1) The
collection into chapters of all the sections and parts of sections that relate to the same subject and the orderly
arrangement into sections of the material assembled in each chapter. (2) The elimination of inoperative or obsolete,
duplicated, impliedly repealed and unconstitutional (as declared by the Supreme Court of the State of Nevada)
sections and parts of sections. (3) The elimination of unnecessary words and the improvement of the grammatical
structure and physical form of sections.
The revision, instead of the recompilation, of the statutes was undertaken, therefore, first, to eliminate sections
or parts of sections which, though not specifically repealed, were nevertheless ineffective and, second, to clarify,
simplify, classify and generally make more accessible, understandable and usable the remaining effective sections or
parts of sections.
With respect to the accomplishment of the second purpose of revision specified above, the following revisions,
in addition to those mentioned elsewhere in this preface, were made:
1. Long sections were divided into shorter sections. The division of long sections facilitates indexing and
reduces the complications and expense incident to future amendment of the statutes.
2. Whole sections or parts of sections relating to the same subject were sometimes combined.
3. Sentences within a section, and words within a sentence, were rearranged, and tabulations were employed
where indicated.
Printed from the Official Nevada Law Library from the Source™
Copyright © 2018
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4. Such words and phrases as “on and after the effective date of this act,” “heretofore,” “hereinafter,” “now,”
and “this act” were replaced by more explicit words when possible.
5. The correct names of officers, agencies or funds were substituted for incorrect designations.
The general types of revisions to be made by the reviser, as well as the broad policies governing the work of
revision, were determined by the Statute Revision Commission at frequent meetings. Precautions were taken to
ensure the accomplishment of the objectives of the program without changing the meaning or substance of the
statutes.
Upon completion of the revision of the text of the statutes in December 1956, the Commission turned to the
solution of a vital problem: Would it recommend the enactment of the revised statutes or would it request the
Legislature merely to adopt the revised statutes as evidence of the law? The Commission concluded that the
enactment of the revised statutes as law, rather than the mere adoption thereof as evidence of the law, would be the
more desirable course of action. Accordingly, Nevada Revised Statutes in typewritten form was submitted to the
48th Session of the Legislature in the form of a bill providing for its enactment as law of the State of Nevada. This
bill, Senate Bill No. 2 (hereafter referred to in this preface as “the revision bill”), was passed without amendment or
dissenting vote, and on January 25, 1957, was approved by Governor Charles H. Russell.
On July 1, 1963, pursuant to the provisions of chapter 403, Statutes of Nevada 1963, the Statute Revision
Commission was abolished, and its powers, duties and functions were transferred to the Legislative Counsel of the
State of Nevada.
METHOD AND FORM OF PUBLICATION
As required by NRS 220.120, all volumes are “bound in loose-leaf binders of good, and so far as possible,
permanent quality.” The use of the loose-leaf method makes it possible to keep Nevada Revised Statutes up to date,
without using pocket parts or supplements or completely reprinting and rebinding each volume, simply by the
insertion of new pages. As required by NRS 220.160, replacement and supplementary pages to the statute text made
necessary by the session of the Legislature are prepared as soon as possible after each session. Complete reprintings
of Nevada Revised Statutes were made in 1967, 1973 and 1979, and after each regular session beginning in 1985.
Replacement pages are additionally provided periodically between legislative sessions as necessary to update the
annotations to NRS, including federal and state case law. Occasionally these replacement pages will contain
material inadvertently omitted in the codification of NRS and the correction of manifest clerical errors, as well as
sections or chapters of NRS which have been recodified pursuant to chapter 220 of NRS for clarification or to
alleviate overcrowding.
The outside bottom corner of each page of NRS contains a designation which indicates the reprint or group of
replacement pages with which the page was issued. A designation consisting of four numerals contained in
parentheses means that the page was issued as part of a reprint of NRS immediately following the legislative session
held in the year indicated by the four numerals. For example, the designation “(2017)” means that the page was
issued as part of the reprint of NRS immediately following the 79th Legislative Session which was held in 2017. A
designation consisting of four numerals contained in parentheses immediately followed by the capitalized letter “R”
and a numeral means that the page was issued as part of a group of replacement pages in the year indicated by the
four numerals in parentheses. The numeral following the “R” indicates the number of the group of replacement
Copyright © 2018
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pages. The groups begin with the number one and increase sequentially by one number so that the later group will
always have a higher number. For example, the designation “(2017) R1” means that the page was part of the first
group of replacement pages issued in 2017. Similarly, the designation “(2017) R4” means that the page was part of
the fourth group of replacement pages issued in 2017.
CLASSIFICATION AND ARRANGEMENT
One of the first and most fundamental tasks in the revision was the adoption of a sound system of classification.
Proper classification, by which the laws or parts of laws are brought together in logical consecutive units, is vital for
a number of reasons: It makes the law more accessible and understandable; only through it can all conflicts, implied
repeals and duplications be discovered and the proper changes made; and it makes possible improvements in the
cross references, the numbering, the index and the annotations.
The initial step in classification was to develop an outline composed of convenient units, arranged in logical
order and designed to accommodate not only the existing statutes but such as might reasonably be expected to be
enacted in the future. The basic unit of classification is the chapter. Each chapter is intended to include all the
statutes, and no more, relating to each subject that logically can be treated as a unit.
In the process of classification the statutes were divided into four main parts; the parts, in turn, were divided into
titles and the titles into chapters. In each of the parts, an attempt has been made to arrange the titles, and the chapters
within titles, in the most logical sequence. The four main parts are as follows:
1. Remedial, dealing with structure and organization of courts and with civil procedure and remedies (chapters
1 to 74, inclusive, of NRS).
2. Civil, dealing with relationships among persons (chapters 75 to 167, inclusive, of NRS).
3. Penal, dealing with criminal procedure, crimes generally and punishment (chapters 169 to 217, inclusive, of
NRS).
4. Political, dealing with the structure and organization of state and local government and with the services
rendered and the regulation exercised by government (chapters 218A to 722, inclusive, of NRS).
The Table of Titles lists the titles in each part, and attempts, with respect to the political part, to indicate the
logic of their sequence. The Table of Titles and Chapters that follows the Table of Titles lists all the titles and
chapters in the order in which they appear. With respect to the grouping of chapters, the user of the statutes will
note that the chapters are arranged in small groups having to do with specific fields of the law, and that numbered
titles have been inserted for each of these fields. A thorough understanding of the system of classification, acquired
through a study of the Table of Titles and the Table of Titles and Chapters, will enhance the ability of the user of the
statutes to find the statutes he or she seeks, or, in many cases, to determine with some degree of certainty that there
are no such statutes to be found.
The arrangement of sections within each chapter, as well as the arrangement of chapters within titles, is intended
to follow a logical pattern. If there are definitions applicable to a whole chapter, they are contained in the first
section or sections of the chapter. Next comes a section or sections stating the leading principle of the chapter.
Following this the details dealing with the carrying out or the enforcing of the principle are set down in logical
order. If it is contemplated that certain steps shall be taken in chronological order, the steps are arranged in that
order. If a chapter consists of several independent or separable laws, the sections dealing with each law are arranged
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according to the pattern just described. In most chapters, except those containing the ordinary criminal statutes and
the applicable penalties, the criminal penalties for violating provisions of a chapter are contained in the last section
or sections.
In the statutory text, index tabs appear at the beginning of each title. Following each tab is an outline of the
chapters in that title. These aids are designed to encourage and facilitate the use of the system of classification in
finding the law. As a further aid to the quick location of statutory sections, there has been placed at the beginning of
each chapter a detailed outline of the sections in that chapter. After the user of the statutes has determined, first, by
use of the Table of Titles, in which of the four major parts the statute for which he or she is searching logically falls
and, secondly, by use of the Table of Titles and Chapters or the General Index, in which of the titles and chapters it
would fall, the user may utilize the outline of that chapter to direct his or her attention to the particular statute being
sought. If a statute concerns the subject of that chapter but is located in another, the cross references which follow
the outline should point out its location.
NUMBERING OF SECTIONS
The complete reclassification and rearrangement of the statutes required a renumbering of the sections. The
Statute Revision Commission selected a permanent and expandable decimal system of numbering, thus eliminating
in future editions of Nevada Revised Statutes the necessity of renumbering. Under the adopted decimal system, the
number to the left of the decimal point indicates the number of the chapter in which the section is located, while the
number to the right indicates the relative position of the section within the chapter. When it is once understood that
the number to the left of the decimal point is the chapter number, and the number to the right of the decimal point
indicates the order of the section within that chapter, the system is easily comprehended.
The chapters are numbered progressively with Arabic numerals. A progressive rather than a consecutive system
was used in order to facilitate the insertion of additional chapters without renumbering, but it has been necessary to
designate some chapters by adding a capital letter to the number.
Within each chapter the sections are generally numbered by 10's. In some instances, however, the large number
of sections in a chapter has necessitated numbering by 5's, 2's or even 1's. The purpose of generally numbering by
10's is to enable future legislation to be compiled in its proper place without disturbing the uniformity of the
numbering system or without renumbering existing sections.
Sections repealed are dropped from the outline and the chapter after the first regular session following the
regular session during which they were repealed. Until then, the leadline is printed in the outline followed by the
word “Repealed” in brackets and is printed in the chapter with a reference to the provision that repealed the section.
The NRS numbers of sections that have been repealed are not revised in future codification except in the case of
certain uniform acts, such as the Uniform Commercial Code, where the reuse of numbers is necessary to ensure the
desired uniformity of numbering. A Table of Sections Repealed or Replaced is included following the Comparative
Section Tables.
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NUMBERING OF PAGES
The pages of each chapter of NRS are numbered independently of the other chapters with Arabic numerals at the
center of the bottom of each page. Each page number consists of one to three numerals or numerals and a letter to
the left of a hyphen and one or more numerals to the right of the hyphen. The numerals or numerals and letter to the
left of the hyphen indicate the NRS chapter number. The number to the right of the hyphen indicates the sequential
order of the page within the chapter. For example, the designation “616D-14” would appear on the fourteenth page
of chapter 616D of NRS. On rare occasions, an abundance of replacement pages may cause the use of decimal
points and additional numbers immediately following the page number to the right of the hyphen. The numbers
following the decimal point are consecutively ordered. For example, the designation “616D-14.2” would appear in
chapter 616D of NRS following the page numbered “616D-14.1” which would follow the fourteenth page of the
chapter.
LEGISLATIVE HISTORY
The legislative history for each section of Nevada Revised Statutes enacted as a part of the revision bill, up to the
time of enactment, has been inserted in brackets immediately following the section. Each legislative history contains
a reference to the section, chapter and year of the Statutes of Nevada from which the section of NRS is derived,
together with references to subsequent amendments and, when applicable, section numbers in prior compilations.
Certain abbreviations have been employed by the reviser in order to shorten the bracketed material:
B—Bonnifield and Healy, The Compiled Laws of the State of Nevada (1873)
BH—Baily and Hammond, The General Statutes of the State of Nevada (1885)
C—Cutting, Compiled Laws of Nevada (1900)
RL—Revised Laws of Nevada (1912)
1919 RL—Revised Laws of Nevada (1919)
NCL—Nevada Compiled Laws (1929)
1931 NCL—Nevada Compiled Laws 1931—41 Supplement (1941)
1943 NCL—Nevada Compiled Laws 1943—49 Supplement (1949)
In the case of the Civil Practice Act, Criminal Practice Act and Crimes and Punishments Act of 1911, which
were omitted from Statutes of Nevada 1911 as authorized by chapter 84, Statutes of Nevada 1911, the reviser has
employed the following abbreviations in the legislative history:
1911 CPA—Civil Practice Act of 1911

1911 C&P—Crimes and Punishments Act of 1911
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1911 Cr. Prac.—Criminal Practice Act of 1911
The following several detailed illustrations will show how the legislative history works:
1. The interpolation “[1:19:1865; B § 910; BH § 2425; C § 2508; RL § 4828; NCL § 8370]” following the text
of NRS 1.010, means that NRS 1.010 was derived from section 1, chapter 19, Statutes of Nevada 1865; and that
section 1, chapter 19, Statutes of Nevada 1865, subsequently appeared in the compilation of Nevada statutes in
Bonnifield and Healy § 910, in Baily and Hammond § 2425, in Cutting § 2508, in Revised Laws of Nevada (1912) §
4828, and Nevada Compiled Laws (1929) § 8370.
2. The interpolation “[52:19:1865; A 1869, 136; 1881, 165; BH § 2471; C § 2553; RL § 4872; NCL § 8414]”
following the text of NRS 1.060, means that NRS 1.060 was derived from section 52, chapter 19, Statutes of
Nevada 1865; that section 52, chapter 19, Statutes of Nevada 1865, was subsequently amended by Statutes of
Nevada 1869, at page 136, and by Statutes of Nevada 1881, at page 165; and that the last amendment subsequently
appeared in the compilation of Nevada statutes in Baily and Hammond § 2471, in Cutting § 2553, in Revised Laws
of Nevada (1912) § 4872, and Nevada Compiled Laws (1929) § 8414.
3. The interpolation “[42:19:1865; A 1927, 138; NCL § 8404]” following the text of NRS 1.090, means that
NRS 1.090 was derived from section 42, chapter 19, Statutes of Nevada 1865; that section 42, chapter 19, Statutes
of Nevada 1865, was subsequently amended by Statutes of Nevada 1927, at page 138; and that the last amendment
subsequently appeared in Nevada Compiled Laws (1929) § 8404.
4. The interpolation “[Part 61:108:1866; B § 2659; BH § 1696; C § 1842; RL § 2817; NCL § 4817]” following
the text of NRS 1.280, means that NRS 1.280 was derived from a part of section 61, chapter 108, Statutes of
Nevada 1866; and that section 61, chapter 108, Statutes of Nevada 1866, subsequently appeared in the compilation
of Nevada statutes in Bonnifield and Healy § 2659, in Baily and Hammond § 1696, in Cutting § 1842, in Revised
Laws of Nevada (1912) § 2817, and Nevada Compiled Laws (1929) § 4817.
5. The interpolation “[Part 1:217:1909; A 1931, 9; 1931 NCL § 618] + [Part 2:108:1866; A 1953, 711; 1955,
459]” following the text of NRS 2.020, means that NRS 2.020 was derived from: (a) A part of section 1, chapter
217, Statutes of Nevada 1909; that section 1, chapter 217, Statutes of Nevada 1909, was subsequently amended by
Statutes of Nevada 1931, at page 9; and that the last amendment to section 1, chapter 217, Statutes of Nevada 1909,
subsequently appeared in Nevada Compiled Laws 1931–41 Supplement § 618; and (b) A part of section 2, chapter
108, Statutes of Nevada 1866; that section 2, chapter 108, Statutes of Nevada 1866, was subsequently amended by
Statutes of Nevada 1953, at page 711, and by Statutes of Nevada 1955, at page 459.
6. The interpolation “[Part 19:33:1861; A 1947, 445; 1943 NCL § 4067]” following the text of NRS 125.340,
means that NRS 125.340 was derived from a part of section 19, chapter 33, Statutes of Nevada 1861; that section
19, chapter 33, Statutes of Nevada 1861, was amended by Statutes of Nevada 1947, at page 445; and that the last
amendment to section 19, chapter 33, Statutes of Nevada 1861, subsequently appeared in Nevada Compiled Laws
1943–49 Supplement § 4067.
7. The interpolation “[1911 CPA § 532; RL § 5474; NCL § 9021]” following the text of NRS 1.030, means that
NRS 1.030 was derived from section 532 of the Civil Practice Act of 1911; and that that section was first printed in
Revised Laws of Nevada (1912) § 5474, and subsequently appeared in Nevada Compiled Laws (1929) § 9021.
8. The interpolation “[1911 C&P § 53; RL § 6318; NCL § 10002]” following the text of NRS 198.010, means
that NRS 198.010 was derived from section 53 of the Crimes and Punishments Act of 1911; and that that section
was first printed in Revised Laws of Nevada (1912) § 6318, and subsequently appeared in Nevada Compiled Laws
(1929) § 10002.
9. The interpolation “[1911 Cr. Prac. § 99; RL § 6949; NCL § 10747]” following the text of NRS 171.215,
means that NRS 171.215 was derived from section 99 of the Criminal Practice Act of 1911; and that that section
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was first printed in Revised Laws of Nevada (1912) § 6949, and subsequently appeared in Nevada Compiled Laws
(1929) § 10747.
10. The interpolation “[1911 C&P § 202; A 1917, 410; 1919 RL § 6467; NCL § 10150]” following the text of
NRS 646.030, means that NRS 646.030 was derived from section 202 of the Crimes and Punishments Act of 1911;
that that section was amended by Statutes of Nevada 1917, at page 410; and that the last amendment subsequently
appeared in Revised Laws of Nevada (1919) § 6467, and Nevada Compiled Laws (1929) § 10150.
11. The interpolation “[8:264:1913; 1919 RL p. 2838; NCL § 3767]” following the text of NRS 339.030, means
that NRS 339.030 was derived from section 8, chapter 264, Statutes of Nevada 1913; and that section 8, chapter
264, Statutes of Nevada 1913, subsequently appeared in Revised Laws of Nevada (1919), at page 2838, and Nevada
Compiled Laws (1929) § 3767.
12. The interpolation “[1:153:1927; A 1928, 29; 1945, 208; 1951, 359; 1953, 540]” following the text of NRS
2.050, means that NRS 2.050 was derived from section 1, chapter 153, Statutes of Nevada 1927; and that section 1,
chapter 153, Statutes of Nevada 1927, was subsequently amended by Statutes of Nevada 1928, at page 29, by
Statutes of Nevada 1945, at page 208, by Statutes of Nevada 1951, at page 359, and by Statutes of Nevada 1953, at
page 540.
13. The interpolation “[7:52:1907; added 1949, 506; 1943 NCL § 8460.01]” following the text of NRS 3.380,
means that NRS 3.380 was derived from section 7, chapter 52, Statutes of Nevada 1907, which section was added to
chapter 52, Statutes of Nevada 1907, by Statutes of Nevada 1949, at page 506; and that the added section appeared
in Nevada Compiled Laws 1943–49 Supplement § 8460.01.
14. The interpolation “[1:229:1953]” following the text of NRS 1.220, means that NRS 1.220 was derived from
section 1, chapter 229, Statutes of Nevada 1953.
Note that the legislative history of a section which was amended contains only references to compilations in
which the section appeared in its latest amended form. Thus the legislative history of a section which appeared in
Nevada Compiled Laws (1929), if the section was amended in 1951, contains no reference to Nevada Compiled
Laws (1929).
When the legislative history of a section of NRS indicates that the section of NRS has been derived from a part
of a section, the disposition and location of the balance of that original section generally may be determined by
referring to the Comparative Section Tables. In some instances temporary or obsolete material of the original
section was deleted by the reviser, the reason for such deletion being explained in the reviser's note to the section of
NRS.
Legislative histories interpreted above are to sections of NRS as enacted by the revision act by the 1957
Legislature. Action taken on Nevada Revised Statutes by the 1957 and subsequent legislative sessions appears at the
end of each legislative history enclosed in parentheses and is indicated as follows:
1. Amended section. The interpolation “[1911 CPA § 673; A 1955, 284]–(NRS A 1957, 140; 1959, 596)”
following the text of NRS 37.100 means that NRS 37.100 was amended by Statutes of Nevada 1957, at page 140,
and by Statutes of Nevada 1959, at page 596.
2. New section. The interpolation “(Added to NRS by 1957, 64)” following the text of NRS 18.045, means that
NRS 18.045 was enacted by Statutes of Nevada 1957, at page 64.
CROSS REFERENCES
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Immediately following the outline in most chapters there have been inserted cross references to other related
subjects found in the Constitution of the State of Nevada, Nevada Revised Statutes, special and local acts which
have a continuing effect, Supreme Court Rules, Nevada Rules of Appellate Procedure, Nevada Rules of Civil
Procedure, Nevada Rules on the Administrative Docket, District Court Rules, local district court rules and Justice
Court Rules of Civil Procedure. The Constitution of the United States, the United States District Court Rules for the
District of Nevada and the Ninth Circuit Rules for the United States Court of Appeals have not been
cross-referenced. Use of the information thus made available will enable a complete picture to be obtained of the
law with reference to any particular subject. In considering any chapter of NRS, the cross references noted
following the outline should be examined. The cross references are designed to make the statutes more accessible.
CITATION OF NEVADA REVISED STATUTES
The citation of Nevada Revised Statutes and its component parts (titles, chapters and sections) is provided in
NRS 220.170.
The component parts of a section of NRS and the proper manner of citing them are indicated in the following
example of the outline used:
000.000 Sample outline. This is a sample section of NRS, which can be subdivided as follows:
1. This is a subsection.
2. Subsections are numbered with Arabic numerals and can be subdivided into paragraphs which:
(a) Are designated by a lowercase letter in parentheses;
(b) Are cited as “paragraphs (a) and (b) of subsection 2 of NRS 000.000”; and
(c) Can be further subdivided into subparagraphs which:
(1) Are designated by Arabic numerals in parentheses;
(2) Are cited as “subparagraphs (1) and (2) of paragraph (c) of subsection 2 of NRS 000.000”; and
(3) Can be further subdivided into sub-subparagraphs which are:
(I) Designated by Roman numerals in parentheses; and
(II) Cited as “sub-subparagraphs (I) and (II) of subparagraph (3) of paragraph (c) of subsection 2 of NRS
000.000.”
ABBREVIATIONS
In preparing and revising NRS a minimum of abbreviations has been used. In addition to the abbreviations
employed in the legislative histories (explained in this preface under the heading “Legislative History”) the
following abbreviations have been used:
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“4JDCR” means Fourth Judicial District Court Rules.

“7JDCR” means Seventh Judicial District Court Rules.
“10JDCR” means Tenth Judicial District Court Rules.
“Const.” means Nevada Constitution.
“D.C.R.” means District Court Rules.
“EDCR” means Eighth Judicial District Court Rules.
“FJDCR” means First Judicial District Court Rules.
“FMR” means Foreclosure Mediation Rules.
“JCRCP” means Justice Court Rules of Civil Procedure.
“JCRLV” means Justice Court Rules of Las Vegas Township.
“JCRNLV” means Justice Court Rules of North Las Vegas Township.
“JCRRT” means Justice Court Rules of Reno Township.
“L.C.R.” means Criminal Rules of Practice for the Second Judicial District Court.
“NAC” means Nevada Administrative Code.
“N.A.R.” means Nevada Arbitration Rules.
“NEFCR” means Nevada Electronic Filing and Conversion Rules.
“NJDCR” means Ninth Judicial District Court Rules.
“N.M.R.” means Nevada Mediation Rules.
“NRAD” means Nevada Rules on the Administrative Docket.
“NRAP” means Nevada Rules of Appellate Procedure.
“N.R.C.P.” means Nevada Rules of Civil Procedure.
“NRS” means Nevada Revised Statutes.
“N.S.T.R.” means Nevada Short Trial Rules.
“R.C.J.C.” means Revised Nevada Code of Judicial Conduct.
“RJCR” means Rural Justice Court Rules.
“RPC” means Nevada Rules of Professional Conduct.
“S.C.R.” means Supreme Court Rules.
“SRCR” means Nevada Rules for Sealing and Redacting Court Records.
“T.J.D.C.R.” means Third Judicial District Court Rules.
“WDCR” means Washoe District Court Rules.
“WDFCR” means Washoe District Family Court Rules.
ANNOTATIONS
From 1965 to 1985, the annotations, historical notes and other reviser's notes required by chapter 220 of NRS
were contained in a separate set of volumes entitled Annotations to Nevada Revised Statutes. In the 1987 reprint of
NRS, for the first time, this material was included with the text of the chapters and sections to which it pertains. The
several kinds of material so included are described respectively below.
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Reviser's Notes
During the process of revising the statutes, the statute reviser prepared detailed notes explaining the reason for
each omission, change of wording or other revision made. These “reviser's notes” appear in the annotations under
the appropriate sections and will answer most questions that may arise as to the reason for any difference between
the old statute and the new. When a section has been amended since the enactment of NRS, the accompanying note
may be omitted, upon the theory that the Legislature has then examined the section in detail and ratified any such
change. Also included in the “reviser's notes” are selected preambles and other transitory provisions which
accompany statutes but which are not included in Nevada Revised Statutes.
Subcommittee's Comments
Title 4 of NRS includes annotations which set forth relevant comments of the Legislative Commission's
Subcommittee for Study of an Evidence Code, which appeared in the publication “A Proposed Evidence Code for
the State of Nevada,” (Legislative Counsel Bureau Bulletin No. 90, 1970). Many of these comments specify the
Draft Federal Rule which corresponds to the section under which the comment appears. The user is cautioned that
the comments relate to the sections of the draft bill, not all of which were enacted in the exact form proposed.
Notes of Advisory Committees of the Nevada Supreme Court
The annotations to Nevada Rules of Civil Procedure, Nevada Rules of Appellate Procedure and Justice Court
Rules of Civil Procedure contain notes as prepared by the respective advisory committees appointed by the Nevada
Supreme Court.
References to Nevada Constitutional Debates and Proceedings
Annotations to the Constitution of the State of Nevada contain references to the Debates and Proceedings in the
Constitutional Convention of the State of Nevada, as reported by Andrew J. Marsh and published in 1866. For
example, the annotations to § 1, Article 2 of the Constitution relating to the right to vote and qualifications of
electors contains the following reference: “Nevada Constitutional Debates and Proceedings, pp. 70-73, 80-104,
243-246, 253, 271, 272, 467, 493, 785, 835.” All cited pages relate to the right to vote and qualifications of electors.
Cross References to Related Provisions of the Nevada Revised Statutes
Cross references to related sections of NRS have been included in the annotations under appropriate sections.
The references are to sections or groups of sections of NRS which have been codified in another chapter or title of
NRS but which the reader may find particularly relevant or helpful in construing the section under which the
annotation is placed.
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References to Related Provisions of the Nevada Administrative Code
Beginning with the 1987 reprint of NRS, references to related provisions of the Nevada Administrative Code
(NAC) have been included in the annotations under appropriate sections. The references are to sections or groups of
sections of NAC which are related to or adopted pursuant to the statutory provision. Caution is advised because
state officers and agencies can amend these regulations at any time. It is therefore advised that the reader consult the
corresponding chapter of NAC whenever an officer or agency has statutory authority to adopt regulations. NAC is
organized so that each chapter contains regulations authorized by or relating to the chapter of NRS with the same
number.
Notes of Judicial Decisions
The notes of judicial decisions include statements of holdings set forth in the reported decisions of the Nevada
Supreme Court, federal courts and courts of other jurisdictions, involving the various provisions of Nevada Revised
Statutes. Also included are statements of holdings in cases decided under former statutes which were substantially
the same as the present provisions of Nevada Revised Statutes.
These notes have been enlarged beginning with the 1987 reprint by including not only cases in which the court
expressly construed a constitutional or statutory provision but also cases: (1) in which such a provision although not
identified was clearly the basis of the court's holding; and (2) which the annotator believes are useful in
understanding the application of the provision even though it was not construed or specifically applied. Any such
extension necessarily involves editorial judgment and human frailty. In particular, the reader is cautioned that not
every case which might be equally worthy of inclusion for one of the stated reasons may be included, either because
the annotator did not find it or because his or her judgment of the propriety of its inclusion did not agree with the
reader's.
Notes of Opinions of the Attorneys General
Annotations to the Constitution and the statutes contain notes of opinions of the various attorneys general
of the State of Nevada rendered since 1869. These opinions, known informally as AGOs, have been cited in three
different forms, for example:
AGO 100 (9-8-1955). This citation refers to official opinion No. 100 of the Attorney General, dated
September 8, 1955. This citation form was used through 1978. (Note, however, that through 1978 an official AGO
opinion number may have been used more than one time. For example, AGO 13 (2-1-1923), AGO 13 (1-30-1951),
AGO 13 (2-23-1955), AGO 13 (2-23-1959), AGO 13 (3-5-1963) and AGO 13 (2-25-1971)).
AGO 81-13 (12-8-1981). This citation refers to the thirteenth official opinion of the Attorney General
issued during the year of 1981, dated December 8, 1981. This citation form was used from 1979 through 1999.
AGO 2002-10 (2-26-2002). This citation refers to the tenth official opinion of the Attorney General issued
during the year of 2002, dated February 26, 2002. This citation form has been used from 2000 through the present.
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Notes of Open Meeting Law Opinions
Annotations to the statutes contain notes of opinions of the various attorneys general of the State of Nevada
rendered since 1995 as a guideline for enforcing the Open Meeting Law (Chapter 241 of Nevada Revised Statutes).
These opinions, known informally as OMLOs, were not rendered as written opinions requested pursuant to NRS
228.150. Open Meeting Law Opinions have been cited in two different forms, for example:
OMLO 96-04 (4-3-1996). This citation refers to the fourth official Open Meeting Law Opinion of the
Attorney General issued during the year of 1996, dated April 3, 1996. This citation form was used from 1995
through 1999.
OMLO 2001-07 (3-7-2001). This citation refers to the seventh official Open Meeting Law Opinion of the
Attorney General issued during the year of 2001, dated March 7, 2001. This citation form has been used from 2000
through the present.
Notes of Commission on Ethics Opinions
Annotations to the statutes contain notes of opinions rendered by the Nevada Commission on Ethics. These
opinions, known informally as CEOs, are cited, for example: CEO 00-12 (10-6-2000). This citation refers to case
file No. 00-12 of the Nevada Commission on Ethics, dated October 6, 2000.
Selected Collateral Cases
Immediately following selected statutes and chapter or subchapter headings, there have been placed
references to holdings set forth in the reported decisions of federal courts and courts of other jurisdictions, which
holdings are not directly interpretive of Nevada law but have been determined by the Legislative Counsel to be of
potential assistance to the reader of Nevada Revised Statutes (typically through the presentation of a matter of
common law or the discussion of an issue that is analogous to or tangentially interpretive of Nevada law). The
reader is cautioned that these selected collateral cases have been included as a function of editorial judgment in an
attempt to broaden the resources available to the reader, and that such cases may be of limited precedential value
within the State of Nevada.
INDEXES
Because of the additional, time-consuming duties of legislative bill drafting and statute indexing assigned to the
reviser and his staff during the 1953, 1954, 1955 and 1956 Sessions of the Legislature, the completion of the
editorial work on the General Index was delayed and publication did not occur until 1958. The General Index to
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Nevada Revised Statutes was entirely new, being carefully and painstakingly constructed, entry by entry, over a
period of 30 months. The objectives of the Statute Revision Commission were to supply adequate index entries for
all statutory and Nevada constitutional provisions, Supreme Court Rules, Nevada Rules of Civil Procedure, District
Court Rules and Justice Court Rules of Civil Procedure, to avoid erroneous, misleading or useless index entries and
to eliminate blind or cumulative cross references. All index entries were reviewed, after preparation, by one indexer,
and considerable attention was devoted to the integration of the index entries.
The Nevada Constitution is included in the General Index and also has a separate index following the text. The
United States Constitution is not indexed in the General Index but has a separate index following the text. The City
Charters and selected Special and Local Acts which appear in separate volumes towards the end of the set are
included in the General Index. There is also an Index to the City Charters and an Index to the Special and Local
Acts which are explained in this preface under the heading “City Charters and Other Special and Local Acts.” The
United States District Court Rules for the District of Nevada and the Ninth Circuit Rules for the United States Court
of Appeals are also followed by indexes and are not included in the General Index. All indexes are completely
updated and reprinted following each legislative session. A User's Guide appears at the front of the first General
Index volume.
TABLES
Immediately following the Index to the Special and Local Acts appear Legislative Histories, which include
citations and short titles to all statutes on the subject of each title repealed before or by enactment of Nevada
Revised Statutes and not contained in the revision. For example, the legislative history for title 30 (Public
Borrowing and Obligations) contains the following entries:
1921, 221—Consolidated bond interest and redemption fund. R 1957, 2.

1933, 116—Bonds elections. A 1941, 140; R 1956, 219.
The following detailed illustrations show the value of the legislative histories. The 1921 act referred to above
was enacted by Statutes of Nevada 1921, at page 221. The act was repealed Statutes of Nevada 1957, at page 2. The
1933 act referred to above was enacted by Statutes of Nevada 1933, at page 116, amended by Statutes of Nevada
1941, at page 140, and repealed by Statutes of Nevada 1956, at page 219. Thus the user of the statutes can, with
little time and effort, inform himself or herself concerning previous legislation on the general subject in which he or
she has an interest.
Following the legislative histories appear the Comparative Section Tables showing the disposition in Nevada
Revised Statutes of the statutes compiled in Nevada Compiled Laws (1929), Nevada Compiled Laws 1931–41
Supplement, Nevada Compiled Laws 1943–49 Supplement, and the statutes of general application enacted during
the 1951 and subsequent legislative sessions.
Following these tables appears a table composed of all chapters and sections of Nevada Revised Statutes which
have been repealed or replaced in revision since its enactment in 1957 except those repealed sections whose NRS
numbers have been reused. Reuse of the NRS numbers of repealed sections is avoided in all chapters except those
chapters which contain certain uniform acts such as the Uniform Commercial Code where reuse of numbers is
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necessary to ensure the desired uniformity of numbering.
ALPHABETICAL LIST OF NEVADA SUPREME COURT CASES
For the convenience of the users of Nevada Revised Statutes, an alphabetical list of Nevada Supreme Court cases
is contained in its own volume preceding the first volume of the General Index. This list contains the name and
citation of each case decided by the Nevada Supreme Court from 1865 through the year in which the reprint is
published. Each case is listed in alphabetical order under both the name of the appellant and the name of the
respondent. Some cases may have a third listing. For example, State ex rel. Sweikert v. Briare will be listed under
“Sweikert,” “Briare” and “State.” Cases which begin with numerals are at the front of the list.
CITY CHARTERS AND OTHER SPECIAL AND LOCAL ACTS
Pursuant to Senate Concurrent Resolution No. 45 of the 60th Session of the Nevada Legislature (File No. 99,
Statutes of Nevada 1979, page 1997), the Legislative Commission directed the Legislative Counsel to prepare and
publish an index of all special and local acts of the Territory of Nevada and the State of Nevada which by their
terms appear to have a continuing effect and to codify selected special and local acts in a companion volume to
Nevada Revised Statutes. The Legislative Commission decided that the index should be published as an appendix of
Nevada Revised Statutes. It also selected a number of special and local acts which the Legislative Counsel had
identified as appearing to have a continuing effect and which the Legislative Commission believed should be
included in the appendix. The basis of the selection was the Legislative Commission's judgment of the degree of
public interest which any one of the acts seemed to have as evidenced primarily by the number of persons the act
appeared to affect and the number and frequency of its amendments. These special and local acts are contained in
two volumes towards the end of the set. The City Charters are contained in the first volume and the other selected
Special and Local Acts in the second volume, with each volume including a relevant index.
The Legislative Commission directed that the material in the appendix be kept current as part of the continuous
program of statute revision. To this end acts will be deleted when they cease to have a continuing effect and added
as appropriate under the guidelines for selection used by the Legislative Commission.
The inclusion or exclusion of any special or local act from this appendix of Nevada Revised Statutes does not
constitute any finding or declaration of the Legislature or of the Legislative Counsel as to the legal effect of the act
upon the rights, powers or duties of any person.
Copyright © 2018
Page 15
_______________________________
FUTURE REVISION
Chapter 220 of Nevada Revised Statutes provides for a continuous program of statute revision. The efforts of the
Legislative Counsel will be devoted to the improvement of the statutory law. Each user of Nevada Revised Statutes
is invited to submit to the Legislative Counsel such suggestions concerning the statutes and annotations as he or she
considers will result in improving the statutes, and also to call upon the Legislative Counsel for such information as
may be at his or her disposal.
Russell W. McDonald Lorne J. Malkiewich

Legislative Counsel Legislative Counsel
December 1, 1967 October 29, 1993
Frank W. Daykin Brenda J. Erdoes

Legislative Counsel Legislative Counsel
October 25, 1985 November 7, 2017
Copyright © 2018
1/31/2019 NRS: CHAPTER 15 - PLEADINGS, MOTIONS AND ORDERS
[Rev. 6/2/2018 2:26:38 PM--2017]
CHAPTER 15 PLEADINGS, MOTIONS AND ORDERS
NRS 15.010 Verification of pleadings.
NRS 15.030 Transfer of motion when judge unable to hear parties.
NRS 15.040 Enforcement of order for payment of money.
NRS 15.050 Vacation or modification of order made out of court without notice.
_________
_________
NRS 15.010 Verification of pleadings.
1. In all cases of the verification of a pleading, the affidavit of the party shall state that the same is true of the party’s own knowledge,
except as to the matters which are therein stated on the party’s information and belief, and as to those matters that the party believes it to
be true. And where a pleading is verified, it shall be by the affidavit of the party, unless the party is absent from the county where the
attorneys reside, or from some cause unable to verify it, or the facts are within the knowledge of the party’s attorney or other person
verifying the same.
2. When the pleading is verified by the attorney, or any other person except the party, the attorney or other person shall set forth in
the affidavit the reasons why it is not made by the party.
3. When a corporation is a party, the verification may be made by any officer thereof; or when the State, or any officer thereof in its
behalf, is a party, the verification may be made by any person acquainted with the facts; except that in actions prosecuted by the Attorney
General, in behalf of the State, the pleadings need not, in any case, be verified.
4. In all cases where, by the foregoing provisions, the verification may be made by the attorney, such verification may be by the
attorney made on information and belief if the facts are not within the attorney’s knowledge.
5. The affidavit may be in substantially the following form and need not be subscribed before a notary public:
Under penalties of perjury, the undersigned declares that he or she is the ................................ (plaintiff, defendant) named in the
foregoing ................................ (complaint, answer) and knows the contents thereof; that the pleading is true of his or her own knowledge,
except as to those matters stated on information and belief, and that as to such matters he or she believes it to be true.
.......................................................................
[1911 CPA § 122; A 1939, 20; 1931 NCL § 8620] — (NRS A 1969, 180)
NRS 15.030 Transfer of motion when judge unable to hear parties. When a notice of a motion is given, or an order to show
cause is made returnable before a judge out of court, and at the time fixed for the motion, or, on the return day of the order, the judge is
unable to hear the parties, the matter may be transferred by order of the judge to some other judge before whom it might originally have
been brought.
[1911 CPA § 423; RL § 5365; NCL § 8912]
NRS 15.040 Enforcement of order for payment of money. Whenever an order for the payment of a sum of money is made by a
court, it may be enforced by execution in the same manner as if it were a judgment.
[1911 CPA § 424; RL § 5366; NCL § 8913]
NRS 15.050 Vacation or modification of order made out of court without notice. An order made out of court without notice to
the adverse party, may be vacated or modified without notice by the judge who made it, but such proceeding must be limited to the same
record upon which the order was made, or such order may be vacated or modified on notice, in the manner in which others motions are
made.
[1911 CPA § 424.01; added 1937, 26; 1931 NCL § 8913.01]
https://www.leg.state.nv.us/nrs/nrs-015.html 1/1
REVISED LAWS OF NEVADA
CONTAINING
STATE STATUTES OF A GENERAL NATURE FROM 1861

REVISED TO 1912, AND PERTINENT ACTS OF CONGRESS
WITH ANNOTATIONS FROM VOLUMES I TO 34, NEVADA
REPORTS, AND FROM FEDERAL AND STATE DECISIONS
Prepared under legislative enactment, by

JAMES G. SWEENEY
G. F. TALBOT
F. H. NORCROSS
Justices of the Supreme Court
VOLUME 2
Sections 4828 to 7634, inclusive
CARSON CITY, NEVADA

JOE FARNSWORTH, Superintendent of State Printing
1912
1475 Civil Practice Sec. 5063
answer may be confessed, and any new matter alleged, not inconsistent
with the complaint, which avoids the same.
Mont. Civ. P., 720; Utah, 2980.
5058. Failure to demur or reply admits counterclaim.
Sec. 116. If the plaintiff fails to demur or reply to the counterclaim,
the same shall be deemed admitted.
Mont. Civ. P., 722; Utah, 2981.
5059. Demurrer to reply for insufficiency.
Sec. 117. The defendant may, within ten days, demur to the reply, or
any defense therein, when upon the face thereof it does not state facts
sufficient to constitute a defense, stating such grounds.
Mont. Civ. P., 723; Utah, 2982.
CHAPTER 15
verification
•"uriO. Pleadings to be subscribed—WheH to 5063. Defense, written instrument—Excep
be verified. tion to rules.
5061. Verification, when may be omitted. 5064. Verification of pleadings, how and by
3IKS2. Written instrument — When deemed whom made—Actions on behalf of
admitted. state by attorney-general need not
be verified.
5060. Pleadings to be subscribed—When to be verified.
Sec. 118. Every pleading shall be subscribed by the party or his attor
ney, and when the complaint is verified by affidavit the answer and reply
shall be verified also, except as provided in the next section.
Kerr, C. CP., 44ft,
Cited, Marshall v. Golden Fleece M. Co., unquestionably true. Parties doing so lay
16 New 176. themselves liable to the penalties of the
A verified answer should not deny facts criminal law. Boeder v. Stein, 23 Nev. 92
(42 P. 867).
5061. Verification, when may be omitted.
Sec. 119. The verification of the answer or reply required in the last
section may be omitted when an admission of the truth of the complaint
or answer, as the case may be, might subject the party to prosecution for
felony.
Kerr, C C. P., 446.
5062. Written instrument— When deemed admitted.
Sec. 120. When an action is brought upon a written instrument, and the
complaint contains a copy of such instrument, or a copy is annexed thereto,
the genuineness and due execution of such instrument shall be deemed
admitted, unless the answer denying the same be verified.
Kerr, C C. P., 447, 449.
5063. Defense, written instrument— Exception to rules.
Sec. 121. When the defense to an action is founded upon a written
instrument, and a copy thereof is contained in a verified answer, or a copy
is annexed thereto, the genuineness and due execution of such instrument
shall be deemed admitted, unless the plaintiff file with the clerk, ten days
after the service of the answer, an affidavit denying the same; provided,
the execution of the instrument is not deemed admitted by a failure to deny
the same under oath, if the party desiring to controvert the same is, upon
demand, refused an inspection of the original. Such demand must be in
writing, served by copy, upon the adverse party or his attorney, and filed
with the papers in the case.
Kerr, C C. P., 448, 449.
Sec. 5064 Civil Practice 1476
This section is in part similar to section parties, and did not purport to be a com-
54, Stats. 1869, 204, which has had the fol- plete instrument, plaintiff was not required
lowing citation: to file an affidavit denying its execution and
Where a contract set up in defendant's genuineness. Tonopah Lumber Co. v. Riley,
answer did not appear upon its face to have 30 Nev. 312, 318 (95 P. 1001).
been signed or executed by either of the
5064. Verification of pleadings, how and by whom made—Actions on
behalf of state by attorney-general need not be verified.
Sec. 122. In all cases of the verification of a pleading, the affidavit of
the party shall state that the same is true of his own knowledge, except as
to the matters which are therein stated on his information and belief, and
as to those matters, that he believes it to be true. And wh£re a pleading is
verified, it shall be by the affidavit of the party, unless he be absent from
the county where the attorneys reside, or from some cause unable to verify
it, or the facts are within the knowledge of his attorney or other person
verifying the same. When the pleading is verified by the attorney, or any
other person except the party, he shall set forth in the affidavit the reasons
why it is not made by the party. When a corporation is a party, the veri
fication may be made by any officer thereof; or when the state, or any
officer thereof in its behalf, is a party, the verification may be made by any
person acquainted with the facts ; except that in actions prosecuted by the
attorney-general, in behalf of the state, the pleadings need not, in any case,
be verified.
Kerr, C. C. P., 446.
Where there is a defective verification of are made positively, and no averments
an answer, the defendant should be allowed stated upon information or belief, a veri-
to correct the error if he desires to do so. fication, which omits the words "except as
Heintzelman v. L'Amoroux, 3 Nev. 377-379. to those matters which are therein stated on
The verification to a petition for man- his information and belief and as to those
damus in the form of a jurat to ordinary matters he believes it to be true," but other-
affidavits is sufficient. State ex rel. Sears v. wise follows the form prescribed by statute.
Wright, 10 Nev. 167, 172. " is sufficient. Kelly v. Kelly, 18 Nev. 49
When the allegations of the complaint (51 A. R. 732, 1 P. 194).-
CHAPTER 16
GENERAL RULES OF PLEADING
5065. Pleadings liberally construed. 5073. Libel or slander, how pleaded—Proof.
5066. Errors, not substantial, disregarded. 5074. Idem—Truth and mitigating circum-
5007. Sham and irrelevant matter may be stances—Evidence.
stricken out—Bill of particulars. 5075. Allegations not controverted taken as
5068. Account, how pleaded—Copy furnished, true—Exception.
when. 5076. Supplemental complaint, answer, and
5069. Description of real property in plead- reply.
ing. 5077. Pleadings after complaint to be filed
5070. Judgment, how pleaded—Proof. and served.
5071. Conditions precedent, how pleaded— 5078. Corporation, partnership, representa-
Proof. tive capacity pleaded generally.
5072. Private statutes, how pleaded. 5079. Corporate existence need not be proved
unless denied.
5065. Pleadings liberally construed.
Sec. 123. In the construction of a pleading for the purpose of determin
ing its effect, its allegations shall be liberally construed, with a view to
substantial justice between the parties.
Kerr, C. C. P., 452.
Cited, Howard v. Richards, 2 Nev. 132 bocker G. & S. Mining Co. v. Hall, 3 Nev.
(89 A. D. 520). 199.
Because, under our practice, the pleadings This and the following section have lib-
are to be liberally construed, with a view to eralized the rules of construction appli-
substantial justice between the parties, it cable to pleadings so as not only to embrace
does not follow that the substantial rules of the whole of the English statutes of jeofails
pleading can be disregarded. Knicker- and amendments, but to go somewhat
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Scheinwald v. Bartlett, Judge, 271 P. 468 (Nev. 1928)
No. 2834
Supreme Court of Nevada
Scheinwald v. Bartlett, Judge

271 P. 468 (Nev. 1928)
Decided November 13th, 1928
Section 5060 of the civil practice act, vol. 2, Rev. Laws ate trial and disposition of his cause of action. He has
of Nevada, 1912, provides: no plain, speedy and adequate remedy at law. In addi-
tion, the failure of the respondent to enter the default
"Every pleading shall be subscribed by the party or his of the defendant on plaintiff's motion and proceed
attorney, and when the complaint is verified by affi- with the trial of the case is a refusal on the part of the
davit the answer and reply shall be verified also, except respondent to perform an act which the law especially
as provided in the next section." The next section does enjoins as a duty upon the respondent, resulting from
not touch upon the situation in the instant case. his office as district judge. California Pine Box and
Lumber Co. v. Mogan, Judge, 108 P. (Cal.App. 1919)
From sec. 5084 of the civil practice act, in vol. 2, Rev.
882; Newell v. Superior Court of Los Angeles Coun-
Laws of Nevada, 1912, it is at once apparent that the
ty, 149 P. 998; State v. Taylor, 138 N.W. (S.D.) 372;
legislature has made provision whereby the court
Dey v. McAlister, 169 P. (Ariz. 1918) 458; Colthurst v.
may, upon order, enlarge the time for filing an answer
Fitzgerald, 207 P. 471 (Cal. D.C.A. 1922); Crocker v.
where the time has not yet expired. It is equally appar-
Conrey, 140 Cal. 213, 73 P. 1006; De Forrest v. Cof-
ent that where the time has expired the legislative pro-
fey, 154 Cal. 444, 98 P. 27; Sakurai v. Superior Court,
vision definitely fixes the method according to which
65 Cal.App. 280, 223 P. 575; People v. Graham (Colo.
the defendant may secure permission to file an answer
1891), 26 P. 936. The rule in Nevada is perhaps best
after the time limited by law has expired.
stated in the case of The State of Nevada, ex rel. N.C.
*156 The defendant in the instant case not only ab- Keane, Relator, v. M.A. Murphy, District Judge, etc.,
solutely failed to follow the statutory requirement, but Respondent, 19 Nev. 89.
from all that appeared at the time would have been
entirely unable to present any affidavit showing any
At the time the case was called for trial an answer
good cause for the court to grant permission to file the
had been filed and no formal default had been entered
answer out of time.
therein.
It is also clear, from the first statutory citation herein-

Plaintiff did have a plain, speedy and adequate remedy
above, that the answer, being unverified, contrary to
in the ordinary course of law, in that said plaintiff
the mandatory requirement of the statute, is therefore
could *157 have moved to have the verified answer
no answer at all.
stricken, and no regular motion to strike the said an-
swer of the defendant from the files had been made by
In view of the above circumstances, it is submitted
plaintiff.
that the plaintiff is entitled to have the default of the
defendant forthwith entered and to have an immedi-
casetext.com/case/scheinwald-v-bartlett-judge 1 of 2
Scheinwald v. Bartlett, Judge, 271 P. 468 (Nev. 1928)
OPINION falls within the rule stated. The default of respondent

has not been entered. There is a verified answer on
file. The court, in our opinion, has discretion to deal
By the Court, DUCKER, J.: with it as the justice of the case may require.
This is an original proceeding in mandamus. Petition- The writ should therefore be denied.
er is plaintiff in a divorce action in the above-entitled
It is so ordered.
court, and seeks the writ to compel the court to enter
the default of defendant and proceed with the trial of
the case. The salient facts are as follows: The time for
defendant to answer or otherwise plead to petition-
er's verified complaint for divorce had been extend-
ed by stipulation to and including June 4, 1928. On
June 5, 1928, defendant was in default, and the case
set for hearing at 9 a.m. of that day. At that time peti-
tioner moved the court to enter the default of the de-
fendant and proceed with the trial of the case. Defen-
dant's attorney was present and resisted the motion.
He also asked permission to file an unverified answer.
The court denied petitioner's motion, and permitted
defendant to file an unverified answer. Since the filing
of the same, a verified answer has been filed by defen-
dant, and a motion made for allowances.
1. The matter of allowing the filing of an answer after

the time fixed by statute is largely within the discre-
tion of the judge of the lower court. This is especially
so before default has been entered. Conley v. Chedic,
7 Nev. 336; Bowers v. Dickerson, 18 Cal. 420.
In the former case the court said:
"If the defendant was in default, it was a matter much

in the discretion of the judge below to allow the filing
of an answer after the time prescribed by statute, espe-
cially as no default had been entered, and there was no
showing that the failure to plead had occasioned any
delay or injury to the opposite party."
2. It is contended that the unverified answer raised

*158 no issue, and the court was therefore without au-
thority to permit it to be filed. Be that as it may, it
could have no bearing on the matter. The court may
have erred in this respect, but the case, nevertheless,
casetext.com/case/scheinwald-v-bartlett-judge 2 of 2
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Opaco Lumber v. Phipps, 340 P.2d 95 (Nev. 1959)
No. 4154
Supreme Court of Nevada
Opaco Lumber v. Phipps

340 P.2d 95 (Nev. 1959)
Decided June 5th, 1959
*313 OPINION the clerk of the trial court its praecipe for default and
also presented for signing and filing by the clerk a
written form of default. The latter was filed, but the
By the Court, MERRILL, C.J.: clerk failed to sign it.
This action is brought to foreclose a mechanic's lien Appellant contends that this ministerial oversight
for materials used in the construction of respondents' should be regarded as cured by the fact of filing. It em-
residence in Las Vegas. The lien claimant has taken phasizes that, in filing the document, the clerk had,
this appeal from judgment for the respondents ren- by signature, attested the fact of filing. Appellant con-
dered by the trial court sitting without jury. tends that this signature should serve to meet any for-
malities necessary to an entry of default.
The first question raised by the appeal is whether the
filing, unsigned, of a document entitled "default" can The clerk's ministerial duty to receive and file doc-
be construed as entry of default by the clerk. Appellant uments tendered for filing, is entirely separate from
moved the trial court for an order striking the answer its duty under NRCP 55(a) to enter default. That rule
of respondents, basing its motion upon the ground provides: "When a party against whom a judgment for
that the answer had been filed after entry of default. affirmative relief is sought has failed to plead or oth-
The trial court concluded that default had not been erwise defend as provided by these rules and that fact
entered and denied the motion. is made to appear by affidavit or otherwise, the clerk
shall enter his default."
*314 Appellant recognizes that under NRCP 55(c) de-
fault, once entered, can be set aside "for good cause Default, thus, is not automatic. The rule contemplates
shown." Appellant contends, however, that no cause a ministerial determination by the clerk and that this
whatsoever was shown which would have justified the determination shall be recorded by the clerk through
setting aside of a default; that under these circum- his entry of default. The manner in which default shall
stances it was error or abuse of discretion to deny its be entered is not specified. It must, however, by some
motion to strike. We have already held, upon appli- means, demonstrate that the clerk had given his atten-
cation for writ of certiorari, that lack of such cause tion to the particular matter.
would not deprive the court of jurisdiction to enter-
*315 Compliance by the clerk with his duties with re-
tain an answer. Opaco Lumber Company v. District
spect to the filing of a document in no way indicates
Court, 73 Nev. 278, 317 P.2d 957.
that the matter of default has had his attention. The
The record discloses the following facts: After the trial court was not in error in concluding that default
time for answering had expired appellant filed with had not been entered in this case.
casetext.com/case/opaco-lumber-v-phipps 1 of 2
Opaco Lumber v. Phipps, 340 P.2d 95 (Nev. 1959)
Appellant next contends that the trial court under During the course of construction of respondents' res-
these circumstances should have ordered entry of de- idence the sum of $1,462.76 had been paid to appellant
fault, nunc pro tunc, since it is clear upon the facts that on account. Respondents contend that since appellant
appellant was entitled to entry of default at the time is entitled to a lien only for those materials shown to
the praecipe was filed. have been delivered at the building site and since he
has only offered proof of such deliveries to the extent
The consideration of a plaintiff's right to a nunc pro of $1,344.54 he has failed to prove that materials were
tunc entry of default may well be one approach to the delivered over and above the amount of payment.
problem of his right to have stricken a tardy answer
of the defendant. This court has taken a different ap- Appellant's manager testified that the payment in
proach, however. question had been made for earlier deliveries covered
by separate and specific invoices which were not the
In Scheinwald v. Bartlett, 51 Nev. 155, 271 P. 468, this subject of this action. The record shows that the mate-
court held that in absence of entry of default it is dis- rials which are the subject of this action were all deliv-
cretionary with the trial court to permit an answer ered subsequent to the date of the payment. Thus, in
to be filed. It was there stated, 51 Nev. 158, 271 P. the absence of any contrary showing by respondents,
469, "The default of respondent has not been entered. the record establishes that the payment had no rela-
There is a verified answer on file. The court, in our tion to the invoices and deliveries which are here in
opinion, has discretion to deal with it as the justice of dispute.
the case may require."
Appellant, then, is entitled to its lien for such part of
In the present case there is no showing that failure of the building materials as it actually delivered to the
respondents to plead within the time provided had oc- building site or as can be proved to have gone into
casioned any injury or delay to appellant. Accordingly the structure. A trial and definite findings by the trial
we find no error or abuse of discretion in the denial of court thus become necessary.
appellant's motion to strike.
Reversed and remanded for new trial.
Appellant next attacks the judgment for respondents
as contrary to the undisputed facts. The trial court McNAMEE and BADT, JJ., concur.
found that appellant had delivered materials of a value
of $1,344.54 to respondents' building contractor. It *317
further found, however, that not all of these materials
were delivered to respondents' building site. It con-
cluded that appellant was not entitled to any lien at all.
*316 It is conceded that while there may be a dispute

as to whether all of the materials were delivered to re-
spondents' building site or used in their building, it is
undisputed that some of the materials were so deliv-
ered or used.
Respondents contend, notwithstanding, that appel-

lant has failed to show that it is entitled to judgment in
any sum.
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⋆
Cited By (19) !
(/feed/search/? Marren Builders, Inc. v. Lampert, 719 N.E.2d 117 (Ill. App. Ct. 1999)
type=o&q=cites%3A(2067793))
This case has been cited by these opinions:
Appellate Court of Illinois
Filed: October 22nd, 1999
Mann v. Upjohn Co. (2001)
(/opinion/2095686/mann-v-upjohn-co/?) Precedential Status: Precedential
In Re Adoption of D. (2000)
Citations: 719 N.E.2d 117, 241 Ill. Dec. 256, 307 Ill. App. 3d 937
(/opinion/2180579/in-re-adoption-of-d/?)
LaSalle Nat. Trust, NA v. Lamet (2002) Docket Number: 2-98-1041
(/opinion/2140702/lasalle-nat-trust-na-v-
Judges: Hutchinson
lamet/?)
Sunderland Ex Rel. Poell v. Portes (2001)
(/opinion/2095833/sunderland-ex-rel- 719 N.E.2d 117 (1999)
poell-v-portes/?) 307 Ill. App. 3d 937
Allstate Ins. Co. v. Anderson (2002) 241 Ill. Dec. 256
(/opinion/2089944/allstate-ins-co-v-
MARREN BUILDERS, INC., Plaintiff-Appellant,

anderson/?)
v.
View All Citing Opinions (/?q=cites%3A(2067793))
Authorities (12) Thomas LAMPERT and Jane Lampert, Defendants-

This opinion cites:
VAUGHAN OIL CO. v. Caldwell, Troutt &

Appellees (Gary-Wheaton Bank, St. Paul Federal Savings
Alexander, 693 N.E.2d ...
(/opinion/2084703/vaughan-oil-co-v-
and Loan Association, MidAmerica Federal Savings and
caldwell-troutt-alexander/?)
Timberlake v. Illini Hosp., 676 N.E.2d
Loan Association, ITT Small Business Finance Corporation,
634 (Ill. 1997)
(/opinion/2195161/timberlake-v-illini-
and Other Unknown Owners and Lienholders, Defendants).
hosp/?) No. 2-98-1041.
Flesner v. Youngs Development Co., 582 Appellate Court of Illinois, Second District.
N.E.2d 720 (Ill. 1991)
August 17, 1999.
(/opinion/2227364/flesner-v-youngs-
Opinion Modified on Denial of Rehearing October 22, 1999.
development-co/?)
*118 John P. Cooney, Aurora, for Marren Builders, Inc.
Merchants Bank v. Roberts, 686 N.E.2d
1202 (Ill. App. Ct. 1997) *119 Reese J. Peck, Michael H. Allen, Rathje, Woodward, Dyer & Burt, Wheaton, for Jane Lampert, Thomas Lampert.
(/opinion/2022390/merchants-bank-v-
roberts/?)
Lammert v. Lammert Industries, Inc., 360
MODIFIED UPON DENIAL OF REHEARING
N.E.2d 1355 (Ill. App. Ct. 1977) Justice HUTCHINSON delivered the opinion of the court:
(/opinion/2243864/lammert-v-lammert-
This appeal arises from a default judgment order granted in favor of defendants, Tom and Jane Lampert, and against plaintiff, Marren Builders, Inc., on
industries-inc/?)
defendants' counterclaim. The trial court's order also dismissed plaintiff's complaint for want of prosecution. Plaintiff contends that the trial court abused its
discretion in denying its subsequent motion to vacate and reopen discovery. We affirm.
View All Authorities (/opinion/2067793/marren-builders-inc-v-lampert/authorities/?)
The record on appeal reflects that in November 1996 plaintiff filed a verified complaint against defendants, Tom Lampert, Jane Lampert, Gary-Wheaton Bank,
St. Paul Federal Savings and Loan Association, MidAmerica Federal Savings and Loan Association, ITT Small Business Finance Corporation, and other
Share unknown owners and lienholders, to foreclose on a mechanic's lien and seek $33,825 in damages for breach of contract. Tom and Jane Lampert are the only
" (mailto:? defendants remaining as parties to this appeal. In December 1996 defendants Tom and Jane Lampert (defendants) filed their verified answer and affirmative
defenses to plaintiff's complaint. Defendants also filed a verified counterclaim against plaintiff for breach of contract, seeking damages of $20,562. In February
subject=Marren%20Builders%2C%20Inc.%20v.%20Lampert%2C%20719%20N.E.2d%20117%2C%20241%20Ill.%20Dec.%20256%2C%20307%20Ill.%20App.%203d%20937%20at%20CourtListener.com&body=htt
builders-inc-v-lampert/) # 1997 plaintiff filed its unverified answer to defendants' affirmative defenses and filed its unverified answer to defendants' counterclaim.
(http://www.facebook.com/share.php?
In June 1997 upon plaintiff's motion, the trial court continued a scheduled case management conference. In July 1997 the trial court continued the parties'
u=https://www.courtlistener.com/opinion/2067793/marren-
status hearing to November 1997. On October 30, 1997, defendants filed a motion to compel plaintiff to comply with their written discovery
builders-inc-v-lampert/&t=Marren Builders, Inc.
requestsinterrogatories and request for production of documentsand the trial court ordered plaintiff to do so by November 14, 1997.
v. Lampert, 719 N.E.2d 117, 241 Ill. Dec. 256,
307 Ill. App. 3d 937 at CourtListener.com) $ On November 17, 1997, the trial court dismissed plaintiff's cause of action for want of prosecution and set a hearing date for December 17, 1997, on
(http://twitter.com/home? defendants' counterclaim. On December 15, 1997, plaintiff filed a motion to vacate the trial court's dismissal order. On December 17, the trial court entered an
order granting defendants a default judgment against plaintiff on defendants' verified counterclaim and setting the matter for prove-up on defendants' verified
status=https://www.courtlistener.com/opinion/2067793/marren-
builders-inc-v-lampert/) counterclaim on January 22, 1998. On January 16, 1998, plaintiff filed its motion to vacate the default judgment entered against it on defendants'
counterclaim.
https://www.courtlistener.com/opinion/2067793/marren-builders-inc-v-lampert/
On January 22, 1998, counsel for plaintiff appeared for a hearing before the trial court. The trial court's order reflects that the November 17, 1997, dismissal
for want of prosecution was vacated and plaintiff's complaint was reinstated, and the December 17, 1997, default on defendants' counterclaim was vacated.
Support FLP ♥ The trial court also ordered plaintiff to respond to defendants' discovery requests by February 2, 1998, and granted defendants leave to file a petition for fees.
CourtListener is a project of Free Law Project The trial court set the case for trial on May 12, 1998.
(https://free.law), a federally-recognized 501(c)(3)
On February 17, 1998, defendants filed a motion for default judgment and sanctions, based on plaintiff's failure to comply with defendants' discovery requests
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and the trial court's orders regarding plaintiff's compliance with discovery. The trial court's order of the same date reflects that the matter was set for hearing
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on March 3, 1998.
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On March 3, 1998, the trial court entered an order continuing the hearing and argument to March 10, 1998. The trial court's order also states that "[p]laintiff or
its attorney is to be prepared for argument, and must appear. There will be no further continuances. Further, if plaintiff fails to appear[,] defendants' motion will
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be *120 granted sua sponte." (Emphasis in original.)
On March 10, 1998, the trial court denied defendants' motion for a default judgment but granted their motion for sanctions. The trial court ordered plaintiff to
pay defendants $1,800 for attorney fees.
On May 7, 1998, defendants filed a motion for sanctions against plaintiff based on plaintiff's allegedly nonresponsive and incomplete answers to defendants'
interrogatories. Defendants requested sanctions, including dismissing plaintiff's complaint, barring plaintiff from introducing any evidence not previously
disclosed, and reasonable attorney fees. In its written order dated May 7, the trial court barred plaintiff from introducing evidence not previously disclosed in
its answers to defendants' interrogatories.
On May 12, 1998, the date set for trial, neither plaintiff nor plaintiff's counsel appeared. The trial court dismissed counts I and II of plaintiff's complaint for want
of prosecution. The trial court entered judgment in favor of defendants on their counterclaim and against plaintiff in the amount of $20,562 plus costs. The
order also stated that there was no reason to delay enforcement or appeal of the judgment.
On May 22, 1998, plaintiff filed motions to substitute counsel, vacate the May 12 judgment, and reopen discovery. Plaintiff attached an affidavit from Brian
Marren, its president. Marren stated that he had retained attorney Derek Edens to handle the litigation and he had telephone conferences with Edens
regarding the status of the litigation. Marren stated that he received defendants' discovery requests, to which he promptly responded, and returned them to
Edens. Marren received a correspondence from Edens on May 13, 1998, in which Edens notified Marren that he was quitting the practice of law due to
financial and personal disasters.
On June 30, 1998, the trial court conducted a hearing on plaintiff's motions. Following arguments of counsel, the trial court denied plaintiff's motion to vacate
the order of dismissal for want of prosecution entered on plaintiff's complaint. It also denied plaintiff's motion to vacate the judgment entered in favor of
defendants on their counterclaim. Plaintiff timely appeals.
Plaintiff first contends that the trial court erred when it sanctioned plaintiff by barring it from introducing at trial evidence that it had not previously disclosed in
its earlier answers to defendants' discovery. Defendants counter that this issue is waived. We agree with defendants.
We find that plaintiff's argument was not specifically raised throughout the pendency of the litigation or in any of its posttrial motions. One of its motions was
entitled "Motion to Vacate and Motion to Reopen Discovery," but that motion does not specifically address or challenge the May 7, 1998, order. The record
fails to reflect that plaintiff at any time challenged the trial court's order that sanctioned plaintiff based on its noncompliance with defendants' discovery
requests. Accordingly, the issue is waived and we decline to address it. See Doe v. Lutz, 281 Ill.App.3d 630, 641, 218 Ill. Dec. 80 (/opinion/2038323/doe-v-
lutz/), 668 N.E.2d 564 (/opinion/2038323/doe-v-lutz/) (1996).
Plaintiff next contends that the trial court erred in denying its motion to vacate the trial court's May 12, 1998, order dismissing plaintiff's complaint for want of
prosecution. Generally, a dismissal for want of prosecution is not a final and appealable order. Bowers v. Village of Palatine, 204 Ill.App.3d 135, 137, 149 Ill.
Dec. 458 (/opinion/2246507/bowers-v-village-of-palatine/), 561 N.E.2d 1154 (/opinion/2246507/bowers-v-village-of-palatine/) (1990). However, our supreme
court has recently held that, upon the expiration of a plaintiff's opportunity to refile the case pursuant to section 13-217 of the Code of Civil Procedure (the
Code) (735 ILCS 5/13-217 (West 1998)), a dismissal for want of prosecution constitutes a final and appealable order. S.C. Vaughan Oil Co. v. Caldwell, Troutt
*121 & Alexander, 181 Ill. 2d 489 (/opinion/2084703/vaughan-oil-co-v-caldwell-troutt-alexander/), 491, 230 Ill. Dec. 209 (/opinion/2084703/vaughan-oil-co-v-
caldwell-troutt-alexander/), 693 N.E.2d 338 (/opinion/2084703/vaughan-oil-co-v-caldwell-troutt-alexander/) (1998).
If a plaintiff's action is dismissed for want of prosecution, section 13-217 of the Code provides that the plaintiff may refile the action within one year of the
entry of the dismissal order or within the remaining period of limitations, whichever is greater. 735 ILCS 5/13-217 (West 1998). The dismissal order in this case
was entered on May 12, 1998, and, therefore, at the time plaintiff filed its notice of appeal on August 10, 1998, its right to refile under section 13-217 had not
yet expired. See Timberlake v. Illini Hospital, 175 Ill. 2d 159 (/opinion/2195161/timberlake-v-illini-hosp/), 163, 221 Ill. Dec. 831 (/opinion/2195161/timberlake-v-
illini-hosp/), 676 N.E.2d 634 (/opinion/2195161/timberlake-v-illini-hosp/) (1997); Flesner v. Youngs Development Co., 145 Ill. 2d 252 (/opinion/2227364/flesner-
v-youngs-development-co/), 254-55, 164 Ill. Dec. 157 (/opinion/2227364/flesner-v-youngs-development-co/), 582 N.E.2d 720 (/opinion/2227364/flesner-v-
youngs-development-co/) (1991). Therefore, the dismissal order was not a final order. The trial court's use of Supreme Court Rule 304(a) (155 Ill.2d R. 304(a))
language does not affect our conclusion because a trial court's Rule 304(a) finding cannot make a nonfinal order appealable. See Blott v. Hanson, 283
Ill.App.3d 656, 660, 218 Ill. Dec. 848 (/opinion/2015024/blott-v-hanson/), 670 N.E.2d 345 (/opinion/2015024/blott-v-hanson/) (1996). The dismissal order in
this case was not a final and appealable order; therefore, we have no jurisdiction to entertain this portion of the trial court's order.
Plaintiff lastly contends that the trial court erred in denying its motion to vacate the trial court's May 12, 1998, order granting a default judgment on
defendants' counterclaim and awarding defendants $20,562 and costs. The decision to grant or deny a motion to vacate a default judgment lies within the
sound discretion of the trial court, and we will reverse only if the trial court abused its discretion. Merchants Bank v. Roberts, 292 Ill.App.3d 925, 930, 227 Ill.
Dec. 46 (/opinion/2022390/merchants-bank-v-roberts/), 686 N.E.2d 1202 (/opinion/2022390/merchants-bank-v-roberts/) (1997).
The primary concern in ruling on a motion to vacate is whether substantial justice is being done between the litigants and whether it is reasonable under the
circumstances to proceed to trial on the merits. Merchants Bank, 292 Ill.App.3d at 930, 227 Ill. Dec. 46 (/opinion/2022390/merchants-bank-v-roberts/), 686
N.E.2d 1202 (/opinion/2022390/merchants-bank-v-roberts/). A trial court has abused its discretion when it acts arbitrarily without the employment of
conscientious judgment or if its decision exceeds the bounds of reason and ignores principles of law such that substantial prejudice has resulted. Merchants
Bank, 292 Ill.App.3d at 930, 227 Ill. Dec. 46 (/opinion/2022390/merchants-bank-v-roberts/), 686 N.E.2d 1202 (/opinion/2022390/merchants-bank-v-roberts/),
citing Venzor v. Carmen's Pizza Corp., 235 Ill.App.3d 1053, 1059, 176 Ill. Dec. 774 (/opinion/2198344/venzor-v-carmens-pizza-corp/), 602 N.E.2d 81
(/opinion/2198344/venzor-v-carmens-pizza-corp/) (1992). Other factors considered in determining whether the judgment should be vacated include the
presence of a meritorious defense, due diligence, the residence of the nonmovant, the severity of the penalty as a result of the judgment, and the hardship on
the nonmovant if that party is required to go to trial. Merchants Bank, 292 Ill.App.3d at 930, 227 Ill. Dec. 46 (/opinion/2022390/merchants-bank-v-roberts/),
686 N.E.2d 1202 (/opinion/2022390/merchants-bank-v-roberts/).
In denying plaintiff's motion to vacate, the trial court stated:
"[A] litigant has an independent obligation to follow the progress of a litigation and not to simply leave everything in the
hands of the attorney.
I would be much more sympathetic to the motion to vacate if this case had not already been subject to one dismissal of
want of prosecution on November 17, 1997, [plaintiff's] original complaint; and an order of default which was entered a
month later on December 17th. That order of default and dismissal for want of prosecution was subsequently vacated.
The matter was set for trial several times. 1,800 [dollars] was awarded as sanctions for failures to comply with previous
court orders and the affidavit of Mr. Marren is devoid of any allegations that he inquired of the status of his case, that he,
while he was aware of any of these dates, and I think it's simply insufficient.
I believe that the number of times this case has been up and I have called it, *122 [defendants] have been here on * * *
more than one occasion.
***
I think that substantial justice would require that I deny the motion to vacate.
I think that Mr. Marren has not demonstrated either by affidavit or by appearances before the Court or in any other way,
shape, or form that he has followed the progress of this litigation which he himself put into motion."
Initially, we note that plaintiff failed to file a verified answer to defendants' verified counterclaim. Under section 2-605 of the Civil Practice Law (735 ILCS 5/2-
605 (West 1998)), when a pleading is verified, every subsequent pleading must also be verified unless the trial court excuses the verification. Pinnacle Corp. v.
Village of Lake in the Hills, 258 Ill.App.3d 205, 209, 196 Ill. Dec. 567 (/opinion/2069614/pinnacle-v-village-of-lake-in-the-hills/), 630 N.E.2d 502
(/opinion/2069614/pinnacle-v-village-of-lake-in-the-hills/) (1994). When a subsequent pleading is not verified, the court must regard the unverified pleading as
if it was never filed. Pinnacle Corp., 258 Ill.App.3d at 209, 196 Ill. Dec. 567 (/opinion/2069614/pinnacle-v-village-of-lake-in-the-hills/), 630 N.E.2d 502
(/opinion/2069614/pinnacle-v-village-of-lake-in-the-hills/). Here, there is no indication in the record that the trial court excused the verification. Therefore, we
must ignore the allegations in plaintiff's unverified answer, and defendants' well-pleaded facts are deemed admitted. See Pinnacle Corp., 258 Ill.App.3d at
209, 196 Ill. Dec. 567 (/opinion/2069614/pinnacle-v-village-of-lake-in-the-hills/), 630 N.E.2d 502 (/opinion/2069614/pinnacle-v-village-of-lake-in-the-hills/).
Accordingly, we determine no need existed for the trial court to take evidence in this proceeding.
In the present case, the record clearly reflects that neither plaintiff nor plaintiff's counsel acted with due diligence in ascertaining the status of this matter that
they themselves "put into motion." Once the first dismissal for want of prosecution was entered and the first default judgment was entered in favor of
defendants on their counterclaim, plaintiff and its counsel were certainly on notice that plaintiff's cause of action was in jeopardy and that plaintiff could be
found liable on the counterclaim for $20,562. Although plaintiff's current counsel appears to be diligent, we must focus our review on the events that led up to
the dismissal for want of prosecution, beginning when plaintiff filed its complaint. We also note that the March 3, 1998, order continuing the hearing and
argument specifically instructed plaintiff that "[p]laintiff or its attorney is to be prepared for argument, and must appear. There will be no further continuances."
(Emphasis in original.) Moreover, the trial court warned, "if plaintiff fails to appear[,] defendants' motion will be granted sua sponte."
The trial court correctly stated that plaintiff had an independent obligation to follow its own case (see Lammert v. Lammert Industries, Inc., 46 Ill.App.3d 667,
674, 4 Ill. Dec. 922, 360 N.E.2d 1355 (/opinion/2243864/lammert-v-lammert-industries-inc/) (1977)) and not blindly leave everything in the hands of its attorney
(see Salazar v. Wiley Sanders Trucking Co., 216 Ill. App. 3d 863 (/opinion/2013106/salazar-v-wiley-sanders-trucking-co/), 872, 159 Ill. Dec. 883
(/opinion/2013106/salazar-v-wiley-sanders-trucking-co/), 576 N.E.2d 552 (/opinion/2013106/salazar-v-wiley-sanders-trucking-co/) (1991)). The record reflects
that Mr. Marren has some measure of sophistication regarding the system of legal dispute resolution, as the letter from Edens to Mr. Marren indicates that Mr.
Marren has retained another attorney in another litigation. The affidavit Mr. Marren presented was also insufficient to excuse plaintiff's conduct of failing to
appear on status dates and hearings, failing to respond to motions to compel, being sanctioned for discovery violations, and failing to appear for trial when
specifically ordered by the trial court to do so. See Wilkin Insulation Co. v. Holtz, 186 Ill. App. 3d 151 (/opinion/2055330/wilkin-insulation-co-v-holtz/), 134 Ill.
Dec. 157, 542 N.E.2d 157 (/opinion/2055330/wilkin-insulation-co-v-holtz/) (1989) (stating that defendant's pattern of deliberate delay and repeated
disobedience of the trial court's orders resulted in substantial hardship and injustice to the plaintiff, and thereby upholding the trial court's order of default
against the defendant).
The record also reflects that the trial court clearly considered whether substantial justice was being done to the parties. The trial court particularly noted
plaintiff's lack of diligence and the hardship to defendants *123 in the event it granted plaintiff's motion to vacate. At the hearing on plaintiff's motion to
vacate, the trial court also heard arguments on plaintiff's lack of a meritorious defense and the severity of the penalty from the default judgment. Based on our
review of the record, we conclude that the trial court did not abuse its discretion by denying plaintiff's motion to vacate.
For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.
Affirmed.
THOMAS, J., concurs.
Justice INGLIS, specially concurring:
While I concur with the majority in the result of this case as being correct under the law, I am nevertheless troubled that we are countenancing a grave
injustice.
The majority correctly notes that a party is obligated to follow the progress of its own case and may not blindly trust in its attorney to handle all of the details
of the litigation. Yet institutionally, the legal system is organized to foster a party's almost total reliance on its attorney to navigate through the litigation
process. The fact that attorneys are licensed and obligated to follow written rules of professional conduct ordinarily vindicates this forced reliance. In a case
such as this one, in which plaintiff's attorney so flagrantly and completely abandoned his client, our assumptions tend to break down. Are we sure that
plaintiff's attorney was truthfully communicating the status of the case to plaintiff? Are we confident that the trial court's March 3, 1998, order requiring
plaintiff's presence at the next hearing was duly passed from the attorney to plaintiff? Sadly, it is entirely reasonable and possible that plaintiff was actively
misled by its attorney, lulled into a belief that all was well until it received its attorney's abrupt resignation, especially since, despite being earlier defaulted, it
continued to retain the attorney in this litigation.
This court is constrained to follow the law as it exists and, in this case, it has. The law in this case, however, leads to an unjust result. Therefore, I respectfully
suggest that our supreme court review the circumstances of this case as it relates to the unfortunate presumption that a party is responsible for the misdeeds
and incompetence of its counsel.
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DeCamp v. First Kensington Corp. (1978) :: :: California Court of Appeal Decisions :: California Case Law :: California Law :: US Law :: Justia 12/18/18, 3(14 PM
DeCamp v. First Kensington Corp. (1978)
[Civ. No. 52742. Second Dist., Div. Three. July 27, 1978.]
JACK M. DeCAMP, Plaintiff and Respondent, v. FIRST KENSINGTON CORPORATION et al.,
Defendants and Appellants.
(Opinion by Potter, Acting P. J., with Cobey and Allport, JJ., concurring.)
COUNSEL
Stephen R. Landau for Defendants and Appellants.
Kaplan, Livingston, Goodwin, Berkowitz & Selvin, Peter C. Smoot and Dorothy Wolpert for
Plaintiff and Respondent.
OPINION
POTTER, Acting P. J.
Defendants First Kensington Corporation (hereinafter Kensington) and Barry S. Marlin

(hereinafter Marlin) appeal from the judgment of the superior court awarding plaintiff Jack M.
DeCamp compensatory and punitive damages totaling $72,525 on plaintiff's complaint for money
had and received and fraud. The cause was heard as an uncontested matter after the default of
defendants was taken as a result of defendants' failure to file a verified answer to the verified
complaint.
The complaint alleged that defendants had jointly induced plaintiff to turn over $35,000 to
Kensington. The misrepresentation charged was that the money would be invested in fixed
deposits in banks in the United Kingdom where a high rate of interest would be received, whereas
in fact no such deposits were ever intended or made and defendants simply converted the funds to
their own use.
https://law.justia.com/cases/california/court-of-appeal/3d/83/268.html Page 1 of 13
Defendants' demurrers to the complaint were overruled and, on September 20, 1976, defendants
filed an answer comprising simply a general denial signed by defendants' counsel. The lack of
verification was explained as follows:
"Comes Now Defendants, Barry S. Marlin and First Kensington Corporation, a California
corporation, and in answer to Plaintiff's Complaint on file herein, submits the following unverified
answer by reason of the fact that to require these answering Defendants to file a verified answer to
portions of Plaintiff's Complaint could and would violate these answering Defendants' rights
afforded under the Fifth and Fourteenth Amendments of the United States Constitution."
On February 4, 1977, plaintiff filed a motion to strike this answer or, alternatively, for judgment on
the pleadings or summary judgment on the [83 Cal. App. 3d 272] ground that the answer failed
to comply with the requirements of sections 431.30 and 446 of the Code of Civil Procedure and,
therefore, constituted an admission of the allegations of the complaint and was insufficient to
create any issue of fact.
The hearing on the motion, originally set for February 15, 1977, was continued to March 7, 1977, at
which time oral argument was heard. An additional continuance to April 1, 1977, was granted "to
afford defendants one last opportunity to verify answer to the verified complaint." On April 1,
defendants lodged with the court separate answers on behalf of Kensington and Marlin, each of
which was verified by defendants' counsel. The verification in behalf of Kensington stated that
counsel's office was in Los Angeles County and that "no officers of said Defendant are able to make
the verification because they are absent from said county ..." The verification in behalf of Marlin
stated that "said Defendant is unable to make the verification because he is absent from said
county ..." In view of the fact that no prior notice was given that such answers were to be filed, the
court further continued the hearing. The minute order noted the following:
"Counsel for defendants has informed the Court that the defendant Barry Marlin left Los Angeles
on March 22, 1977 and is expected to return this coming week. He resides in Los Angeles and most
of this temporary absence will be spent in New York City.
"Both first amended answers are lodged with the Court, but are ordered not to be filed at this
time."
The hearing was further continued to May 3, 1977. On April 19, plaintiff filed a supplemental
memorandum characterizing the answers lodged on April 1 as "a transparent attempt to
circumvent this Court's order of March 7, 1977, and to violate the spirit of the law requiring a party
to verify an answer to a verified Complaint." (Emphasis in original.) After hearing on May 3, 1977,
the court granted plaintiff's motion to strike the unverified answer and the court entered the
default of defendants.
In the course of the oral proceedings on May 3, counsel for defendants also disclosed that Marlin
"is no longer a resident of the State of California" and that he moved to the State of New York
"approximately two weeks ago." The court responded: "[T]hat isn't going to correct his defalcations
of the past several months." [83 Cal. App. 3d 273]
Plaintiff has requested that this court take judicial notice of the guilty plea entered in Marlin's
behalf to six counts of a federal indictment filed July 27, 1977, in the United States District Court
for the Central District of California. Defendants have not objected to judicial notice being taken of
the indictment and plea pursuant to California Evidence Code section 452, subdivision (d). The
indictment contains 24 counts. Marlin pleaded guilty to six counts. These six counts related to four
different schemes, each of which is described in the indictment as a "scheme and artifice to defraud
and obtain money by means of false and fraudulent pretenses." One of the described schemes was
closely parallel to that described in plaintiff's complaint herein and employed the same bank
account maintained by Kensington which was employed in obtaining the money from plaintiff.
Three of the counts to which Marlin pleaded guilty alleged use of the mails to implement this
scheme. None of the counts, however, to which Marlin pleaded guilty involved plaintiff as a victim.
Contentions
Defendants contend that (1) Marlin's guilty pleas do not render the present proceedings moot, (2)
their answers verified by the attorney during Marlin's absence from the State of California were
sufficient, (3) they were not required to file verified answers which might tend to incriminate them,
and (4) on finding their answers insufficient, the court was required to give them a reasonable
period of time within which to file amended answers. Plaintiff controverts all of these contentions.
Discussion
Summary
The guilty pleas of defendant Marlin do not moot the questions presented in this proceeding.
The purported verification of answers by defendants' counsel was not sufficient, and the court
properly declined to file them.
Code of Civil Procedure section 446 requires the answer to be verified despite the fact that "an
admission of the truth of the complaint might subject the party to a criminal prosecution ..." To
sustain the constitutionality of this requirement, we must construe it as implying a grant (to any
answering defendant entitled to protection against self-incrimination) of immunity from use of the
answer or evidence derived [83 Cal. App. 3d 274] therefrom in any subsequent criminal
prosecution. So construed, the section validly required both defendants to file verified answers.
Defendant Kensington has no Fifth Amendment rights and defendant Marlin is adequately
protected by the implied use and derivative use immunity. The judgment must, therefore, be
affirmed as to defendant Kensington. Defendant Marlin, however, is entitled to an opportunity to
file a verified answer after the decision of this court establishing his right to use immunity becomes
final.
Marlin's Guilty Pleas Do Not Render This Proceeding Moot
[1] Plaintiff claims that Marlin has waived his Fifth Amendment rights by pleading guilty to federal
mail fraud charges, asserting that defendant "has pled guilty to the very acts alleged in the
complaint and thereby waived his Fifth Amendment rights." The record does not support such
assertion. At most, Marlin's guilty pleas admit the existence of a scheme to obtain money by false
pretenses which employed some of the same instrumentalities that were involved in plaintiff's
complaint, and that such scheme was practiced against the victims named in the federal
indictment. Plaintiff is not so named. Consequently, the guilty pleas do not admit that any such
scheme was utilized to obtain money from plaintiff. Marlin's conviction upon his plea of fraud on
the victims described in the indictment would not foreclose his subsequent prosecution for like
conduct in respect of plaintiff. Consequently, an admission of the allegations of plaintiff's
complaint, without effective immunity protecting him from its use, would expose Marlin to a
serious threat of prosecution in both the federal and state courts. We conclude, therefore, that
Marlin is still in need of protection from self-incrimination, and the issues presented by his appeal
are not mooted by his guilty pleas.
The Attorney Verification Was Not Sufficient
[2] The attorney verifications were allegedly made upon the statutory ground "that the parties are
absent from the county where he has his office, or from some other cause are unable to verify it. ..."
(Code Civ. Proc., § 446.) The affidavit in this connection stated "that said Defendant [Marlin] is
unable to make the verification because he is absent from said county." The facts made known to
the trial court, however, demonstrated the falsity of this claim. The hearing on the motion to strike
the unverified answer had been continued from March 7 to April 1, [83 Cal. App. 3d 275]
specifically "to afford defendants one last opportunity to verify answer to the verified complaint."
The minutes of the court reflect the fact that Marlin left Los Angeles on March 22, 1977. Patently,
his absence from the county did not render him "unable to make the verification." The further fact
that Marlin was again in Los Angeles during the interval between April 1 and May 3, and moved to
New York approximately two weeks before the latter date, without verifying the answers (which the
court had only allowed to be lodged) compels the conclusion that his absence was contrived in
order to circumvent the court's requirement for verification. We have no hesitancy in holding that
the trial court was justified in concluding there was no inability on Marlin's part to make the
verification.
As our Supreme Court said in Silcox v. Lang (1889) 78 Cal. 118, 122 [20 P. 297]: "The practice of
attorneys verifying for their clients should be discouraged, and to that end the provisions of the
code referred to should receive a strict construction." Applying such rule of construction, Code of
Civil Procedure section 446 does not authorize attorney verifications where the absence of the
party creates no inability on his part to verify.
"'The object of the verification is to insure good faith in the averments of the party.'" (Bittleston
Law etc. Agency v. Howard (1916) 172 Cal. 357, 360 [156 P. 515].) The bad faith of the defendants
in attempting to utilize an attorney verification under the circumstances of this case is patent. To
sanction a transparent circumvention of the purpose of verification would totally negate the effect
of the requirement, and we must decline to do so.
The Answers Were Required to Be Verified Despite the Fact That the Admission of the Truth of the
Complaint Would Show Marlin to Be Guilty of Crime
[3a] Code of Civil Procedure section 446 requires that the answers be verified.
As originally enacted, Code of Civil Procedure section 446 recognized the right of a defendant to
avoid verification of his answer in all cases where the "admission of the truth of the complaint
might subject the party to a criminal prosecution. ..." It provided in a single sentence: "Every
pleading must be subscribed by the party or his attorney; and when the complaint is verified, or
when the State, or any officer of the State, in his official capacity, is plaintiff, the answer must be
verified, [83 Cal. App. 3d 276] unless an admission of the truth of the complaint might subject
the party to a criminal prosecution, or unless an officer of the State, in his official capacity, is
defendant." (Italics added.)
However, a 1933 amendment limited the self-incrimination exception so as to make it apply only to
cases in which the state or an officer thereof was plaintiff. The present form of the statute adds
actions by counties, cities and school districts and their respective officers. The requirement for
verification of answers where the complaint is verified has been made a separate provision and is
not subject to such exception. The language of the section effective at the date of defendants'
answer was as follows: "When the state, any county thereof, city, school district, district, public
agency, or public corporation, or any officer of the state, or of any county thereof, city, school
district, district, public agency, or public corporation, in his official capacity, is plaintiff, the answer
shall be verified, unless an admission of the truth of the complaint might subject the party to a
criminal prosecution, or, unless a county thereof, city, school district, district, public agency, or
public corporation, or an officer of the state, or of any county, city, school district, district, public
agency, or public corporation, in his official capacity, is defendant. Except in justice courts, when
the complaint is verified, the answer shall be verified." (Italics added.)
The 1933 amendment clearly evidenced the Legislature's intent that in private litigation the
defendant is not entitled to defend a verified complaint unless he can deny its essential allegations
under penalty of perjury. Decisions prior to this amendment had made it clear that filing an
unverified answer to a verified complaint constituted an admission of all its allegations. (Hearst v.
Hart (1900) 128 Cal. 327, 328 [60 P. 846].) The conclusion is, therefore, inescapable that the
Legislature intended that the defendant either verify his answer or forfeit his property by incurring
an adverse judgment, regardless of whether an admission of the truth of the complaint might
subject him to criminal prosecution.
In United States v. Kordel (1970) 397 U.S. 1, 13 [25 L. Ed. 2d 1, 11, 90 S. Ct. 763], the United States
Supreme Court said: "The Court of Appeals was correct in stating that 'the Government may not
use evidence against a defendant in a criminal case which has been coerced from him under
penalty of either giving the evidence or suffering a forfeiture of his property.' [Fn. omitted.]" In so
stating, the Supreme Court was applying the rule adopted in Murphy v. Waterfront Comm'n (1964)
378 U.S. 52 [12 L. Ed. 2d 678, 84 S. Ct. 1594]. In Murphy, the court overruled contrary decisions
and held "that the constitutional privilege against self-incrimination [83 Cal. App. 3d 277]
protects the state witness against incrimination under federal as well as state law and a federal
witness against incrimination under state as well as federal law." (Id, at pp. 77-78 [12 L.Ed.2d at p.
694].) The court, however, implemented this rule, not by prohibiting compulsion to give the
testimony in the first place but rather by imposing a use and derivative use immunity applicable to
subsequent criminal prosecution.
In Byers v. Justice Court (1969) 71 Cal. 2d 1039 [80 Cal. Rptr. 553, 458 P.2d 465], our Supreme
Court construed Murphy as authorizing it to preserve the constitutionality of statutory disclosure

requirements by implying the grant of a use immunity. On this basis, a California "hit-and-run"
statute, requiring a driver involved in an accident causing property damage to stop and identify
himself as the driver of an involved vehicle, was held constitutional. The court was satisfied that
the privilege against self-incrimination was applicable. It upheld the statute, however, on the basis
(id, at p. 1049): "(1) that the state may require a person to disclose information otherwise subject to
a claim of privilege if in place of the protection conferred by the privilege there is substituted
another protection, having the same scope and effect as the privilege, namely, immunity from use
of the information or its fruits in connection with a criminal prosecution against the person; and
(2) that, when consistent with both legislative intent and effective enforcement of the criminal
laws, a court may hold that such immunity exists, and therefore that disclosure is required, despite
the absence of any specific legislative grant of immunity."
The court further said (id, at p. 1050):
"Accordingly, if the disclosures compelled by section 20002 of the Vehicle Code and the fruits of
such disclosures may not be used in a criminal prosecution relating to the accident, the
requirements of the privilege against self-incrimination are met. There is no statute explicitly
providing for evidentiary use restrictions for persons complying with section 20002, subdivision
(a), in cases where such persons would otherwise have a valid claim of privilege. Therefore, we
must consider whether such restrictions may properly be imposed by this court.
"There is precedent for judicial imposition of appropriate restrictions on the use of statements in
order to compel otherwise privileged testimony." [83 Cal. App. 3d 278]
The court then analyzed factors pertinent to "an assessment of probable legislative intent, that the
Legislature would prefer to have the provisions of section 20002 of the Vehicle Code upheld even
in cases involving possible criminal misconduct at the cost of some burden on prosecuting
authorities in criminal cases arising out of or related to an accident covered by that section rather
than avoid that burden at the cost of significantly frustrating the important noncriminal objective
of the legislation." (Id, at p. 1055.) Elements of this assessment included the fact that the legislation
"was concerned only with protecting the interests of private parties ..." (id, at p. 1054) and "... that
criminal prosecutions of drivers involved in accidents will not be unduly hampered by rules that
prosecuting authorities may not use information divulged as a result of compliance with section
20002, subdivision (a), of the Vehicle Code or the fruits of such information and that in
prosecutions of individuals who have complied with that section the state must establish that its
evidence is not the fruit of such information." (Id, at p. 1056.)
A similar assessment with respect to Code of Civil Procedure section 446 results in the same
conclusion. [4] Like Vehicle Code section 20002, section 446 of the Code of Civil Procedure is
concerned only with protecting the interests of private parties by relieving them of the
unreasonable burden of undergoing a full-scale trial to prove verified allegations which the
defendant is unwilling to deny under penalty of perjury.
[3b] The hampering effect (upon criminal prosecutions) of an implied use immunity attached to
Code of Civil Procedure section 446 will be virtually nil and far less than that inherent in such a use
immunity attached to Vehicle Code section 20002. A driver's stopping and identifying himself as
the driver of a vehicle involved in an accident might well be the connecting link leading to most of
the prosecution's evidence. Consequently, the prosecution's burden to "... establish that its
evidence is not the fruit of such information" (71 Cal.2d at p. 1056) could be considerable. But it is
difficult to conceive how a verified answer can lead to the discovery of evidence in a subsequent
prosecution of a defendant. Answers do not require a statement of evidentiary facts. "It is the
general rule that a pleading must allege the ultimate facts that constitute the cause of action or the
defense, not the evidence by which the ultimate facts will be proved at the trial. [Fn. omitted.]" (39
Cal.Jur.2d, Pleading, § 21, p. 32.) Nor will any admission in the answer operate to disclose the
defendant's connection with the offense charged in [83 Cal. App. 3d 279] the complaint; such
connection is already fully disclosed by the complaint.
It is thus apparent that the prosecution will not be substantially hampered by use and derivative
use immunity. The People will not be able to utilize any admission in the answer as evidence, but
this will simply leave the situation where it was before defendant was forced to make the
incriminating statement; and the People's "burden of showing that evidence used in a prosecution
is untainted ..." (71 Cal.2d at pp. 1052-1053) can easily be met.
In view of this fact, there really "... is no problem of conflicting state and federal interests" (id, at p.
1055), even though obtaining money by false pretenses is a federal crime if the United States Postal
Service is utilized.
We, therefore, conclude that the correct assessment of probable legislative intent is that the
Legislature would prefer to have the important interests of private litigants protected at the cost of
a minimal burden on prosecuting authorities.
The rule stated in Byers is still viable despite the fact that the United States Supreme Court vacated
the judgment in California v. Byers (1971) 402 U.S. 424 [29 L. Ed. 2d 9, 91 S. Ct. 1535]. The
plurality opinion of the United States Supreme Court avoided the necessity of considering an
implied immunity by holding that the hit-and-run statute did not require incrimination proscribed
by the Fifth Amendment. Both dissenting opinions, in which a total of four justices concurred, held
that the "hit-and-run" disclosure did require such self-incrimination and that an implied immunity
was therefore necessary. fn. 1
Our Supreme Court apparently still considers that Byers is a correct statement of the law. In Daly v.
Superior Court (1977) 19 Cal. 3d 132, 143 [137 Cal. Rptr. 14, 560 P.2d 1193], Byers is cited and
quoted with a reference to the United States Supreme Court decision in a footnote as follows: "5 In
California v. Byers (1971) 402 U.S. 424 [29 L. Ed. 2d 9, 91 S. Ct. 1535], our judgment was vacated
on the ground that requiring the driver to leave his name and address did not invade the privilege."
[83 Cal. App. 3d 280]
It would therefore appear that our Supreme Court agrees with the views stated in Tarantino v.
Superior Court (1975) 48 Cal. App. 3d 465, 470 [122 Cal. Rptr. 61]. In justifying a judicially
declared immunity, the Tarantino court said (ibid): "Such a declaration has express judicial
sanction (Byers v. Justice Court, 71 Cal. 2d 1039, 1043 [80 Cal. Rptr. 553, 458 P.2d 465]). That
judgment was vacated by the United States Supreme Court (California v. Byers, 402 U.S. 424 [29 L.
Ed. 2d 9, 91 S.Ct. 1535]), but solely on the ground that self-identification of a driver, required by
the hit-run statute, does not compel incrimination. The high court did not disagree with
California's judicial declaration of immunity, nor could it, in light of its own decisions cited in the
California Byers opinion (71 Cal.2d at pp. 1049-1053.) Thus we have no hesitancy in declaring that
neither the statements of petitioner to the psychiatrists appointed under section 1369 nor the fruits
of such statements may be used in trial of the issue of petitioner's guilt, under either the plea of not
guilty or that of not guilty by reason of insanity. This immunity will be extended by the federal
courts to use of such testimony or its fruits in any possible federal prosecution. (Murphy v.
Waterfront Comm'n, 378 U.S. 52, 79 [12 L. Ed. 2d 678, 695, 84 S. Ct. 1594], summarized in Byers,
71 Cal.2d at p. 1053.)"
We conclude from the foregoing that defendant Marlin was required to verify his answer but that in
view of the fact that such answer was "'coerced from him under penalty of either giving the
evidence or suffering a forfeiture of his property'" (United States v. Kordel, supra, 397 U.S. at p. 13
[25 L.Ed.2d at p. 11]), he was entitled to an immunity against its use in any criminal prosecution.
[5] The above conclusions, however, do not apply to defendant Kensington. Kensington had no
privilege against self-incrimination and it could not secure the benefits of such privilege by
designating an agent to verify its answer who could not do so without fear of self-incrimination.
In United States v. Kordel, supra, 397 U.S. 1, defendant Feldten had answered interrogatories in
behalf of a corporate party of which he was vice president, in a civil product-seizure proceeding
brought by the Federal Drug Administration. At the time the interrogatories were asked, the
Federal Drug Administration had already served notice that it contemplated criminal proceedings
against the corporation and Feldten. In the subsequent prosecution, Feldten claimed immunity.
Holding that Feldten had not acquired immunity since he had not asserted his privilege, the court
said (id, at pp. 7-8 [25 L.Ed.2d at pp. 7-8]): [83 Cal. App. 3d 281]
"The Court of Appeals thought the answers to the interrogatories were involuntarily given. The
District Judge's order denying the corporation's motion to defer the answers to the interrogatories,
reasoned the court, left the respondents with three choices: they could have refused to answer,
thereby forfeiting the corporation's property that was the subject of the libel; they could have given
false answers to the interrogatories, thereby subjecting themselves to the risk of a prosecution for
perjury; or they could have done just what they did--disclose the requested information, thereby
supplying the Government with evidence and leads helpful in securing their indictment and
conviction. fn. 7
"In this analysis we think the Court of Appeals erred. For Feldten need not have answered the
interrogatories. Without question he could have invoked his Fifth Amendment privilege against
compulsory self-incrimination. fn. 8 Surely Feldten was not barred from asserting his privilege
simply because the corporation had no privilege of its own, fn. 9 or because the proceeding in
which the Government sought information was civil rather than criminal in character. fn. 10
"To be sure, service of the interrogatories obliged the corporation to 'appoint an agent who could,
without fear of self-incrimination, furnish such requested information as was available to the
corporation.' fn. 11 The corporation could not satisfy its obligation under Rule 33 simply by [83
Cal. App. 3d 282] pointing to an agent about to invoke his constitutional privilege. 'It would
indeed be incongruous to permit a corporation to select an individual to verify the corporation's
answers, who because he fears self-incrimination may thus secure for the corporation the benefits
of a privilege it does not have.' fn. 12 Such a result would effectively permit the corporation to
assert on its own behalf the personal privilege of its individual agents. fn. 13
The same may be said of Kensington. It had no privilege of its own and had no standing to assert in
its own behalf the personal privilege of Marlin; consequently, no immunity could arise from its
conduct with respect to the answer. Like the corporate defendant in Kordel, it was obliged to
appoint an agent "'who could, without fear of self-incrimination ...'" (id, at p. 8 [25 L.Ed.2d at p. 8])
make the required verification of the answer.
Marlin Is Entitled to an Opportunity to File a Verified Answer; Kensington Is Not
[6] Both defendants contend that the court erred in failing to allow them an opportunity to amend
by filing a verified answer after the ruling striking the unverified answer. Defendants rely in this
respect upon the rule stated in 4 Witkin, California Procedure (2d ed. 1971) Proceedings Without
Trial, section 170, page 2823, as follows: "[W]here no demurrer was interposed it is error to grant
the motion for judgment on the pleadings without giving the adverse party the same opportunity to
amend that he would have had after the normal ruling on demurrer."
There would be merit to this contention if the effect of the court's order was a judgment on the
pleadings based upon the substantive insufficiency of the allegations of the answer to constitute a
defense, but such was not the basis of the court's ruling. The answers were stricken and the
defendants' defaults were entered because the unverified answers constituted an admission of all of
the material allegations of the complaint. An order granting a motion for judgment on the
pleadings is appropriate under such circumstances, but its effect is the same as granting a motion
to strike. It in no respect is equivalent to sustaining a demurrer. [83 Cal. App. 3d 283]
In Hearst v. Hart, supra, 128 Cal. 327, defendant filed an unverified answer; a judgment on the
pleadings, without any opportunity to amend having been given, was affirmed. The court said (id,
at p. 328):
"2. It is further contended that the proper course under such circumstances would have been to
move to strike the answer from the files, and then take judgment as for want of an answer.
"Either course may be pursued. In McCullough v. Clark, 41 Cal. 298, it is said: 'If the answer of the
defendant was not properly verified, the plaintiff should have moved in the court below either to
strike out the answer, or for judgment as for want of an answer.'
"It would seem to be immaterial to a defendant whether a judgment be rendered against him upon
an answer, which, under the code, admits all the allegations of the complaint, or whether it be
rendered upon default for want of an answer, which admits the same thing."
There is, therefore, no merit to defendants' contention.
[7] However, there is another basis upon which Marlin is entitled to an opportunity to file a verified
answer. At the time Marlin filed his unverified answer, he had a reasonable fear that a verified
answer might be used against him in subsequent criminal proceedings. No prior decision of an
appellate court in this state had recognized the existence of an implied use immunity based upon
the coercive effect of Code of Civil Procedure section 446. Under such circumstances, it would be
unreasonable to subject Marlin to a forfeiture of his property (by upholding his default) which he
could only avoid by taking the risk that immunity might not attach.
Under like circumstances in Murphy v. Waterfront Comm'n, supra, 378 U.S. 52, a judgment of
contempt was vacated. The court said id, at pp. 79-80 [12 L.Ed.2d at pp. 695-696]): "It follows that
petitioners here may now be compelled to answer the questions propounded to them. At the time
they refused to answer, however, petitioners had a reasonable fear, based on this Court's decision
in Feldman v. United States [322 U.S. 487 (88 L. Ed. 1408, 64 S. Ct. 1082, 154 A.L.R. 982)], supra,
that the federal authorities might use the answers against them in connection with a federal
prosecution. We now have overruled Feldman and held that the Federal Government may make no
such use of the answers. Fairness dictates that petitioners should now be afforded an [83 Cal.
App. 3d 284] opportunity, in light of this development, to answer the questions. Cf. Raley v.
Ohio, 360 U.S. 423. Accordingly, the judgment of the New Jersey courts ordering petitioners to
answer the questions may remain undisturbed. But the judgment of contempt is vacated and the
cause remanded to the New Jersey Supreme Court for proceedings not inconsistent with this
opinion."
Our Supreme Court made a similar accommodation in Byers v. Justice Court, supra, 71 Cal.2d at
pages 1057-1058, where the court said:
"However, it does not follow that the judgment must be reversed; we must determine whether, in
light of the fact that we here announce a doctrine new to this state's jurisprudence, fairness dictates
that Byers not be punished for his failure to comply with section 20002.
"* * *
"We conclude, on the basis of Murphy v. Waterfront Com., supra that it would be unfair to hold
that although Byers correctly asserted that the Fifth Amendment privilege was applicable to the
question of his compliance with the 'hit-and-run' statute he should have complied because of use-
restrictions which he could only have speculated might exist."
Disposition
The judgment against defendant Kensington is affirmed. The judgment against defendant Marlin is
reversed and remanded for further proceedings in accordance with the views above expressed,
provided Marlin files an answer verified by him within 30 days of the date the remittitur is received
by the superior court; otherwise, the judgment against defendant Marlin is affirmed. Plaintiff shall
recover costs on appeal as against defendant Kensington; as between plaintiff and defendant
Marlin, each party shall bear his own costs on appeal.
Cobey, J., and Allport, J., concurred.
FN 1. The dissenting opinion of Justice Black agreed with the Supreme Court of California that a
use immunity was adequate. Justice Brennan's dissent stated the view that only a transactional
immunity would suffice.
FN 7. "[United States v. Detroit Vital Foods, Inc. (6th Cir. 1969) 407 F.2d 570], 573.
FN 8. "Wilson v. United States, 221 U.S. 361, 377, 385; Boyd v. United States, 116 U.S. 616, 633-
635; cf. United States v. 42 Jars ...'Bee Royale Capsules,' 162 F. Supp. 944, 946, aff'd, 264 F.2d 666.
FN 9. "Curcio v. United States, 354 U.S. 118, 124; Wilson v. United States, supra, at 385; United
States v. 3963 Bottles ... of ... 'Enerjol Double Strength,' 265 F.2d 332, 335-336, cert. denied, 360
U.S. 931; United States v. 30 Individually Cartoned Jars ... 'Ahead Hair Restorer ...' 43 F.R.D. 181,
187; cf. Shapiro v. United States, 335 U.S. 1, 27. That the corporation has no privilege is of course
long established, and not disputed here. See George Campbell Painting Corp. v. Reid, 392 U.S. 286,
288-289; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 196, 208, 209-210; United States v.
Bausch & Lomb Optical Co., 321 U.S. 707, 726-727; Essgee Co. v. United States, 262 U.S. 151, 155-
156; Wheeler v. United States, 226 U.S. 478, 489-490; Baltimore & Ohio R. Co. v. ICC, 221 U.S.
612, 622-623; Hale v. Henkel, 201 U.S. 43, 74-75; cf. Curcio v. United States, supra; United States
v. White, 322 U.S. 694, 698, 705.
FN 10. "Gardner v. Broderick, 392 U.S. 273, 276; McCarthy v. Arndstein, 266 U.S. 34, 40;
Counselman v. Hitchcock, 142 U.S. 547, 562, 563-564; Boyd v. United States, supra United States
v. Saline Bank, 1 Pet. 100, 104; 8 J. Wigmore, Evidence § 2257, pp. 339-340 (McNaughton rev.
1961); C. McCormick, Evidence § 123, p. 259 (1954).
FN 11. "United States v. 3963 Bottles ... of ... 'Enerjol Double Strength,' supra, at 336; cf. United
States v. 48 Jars ... 'Tranquilease,' 23 F.R.D. 192, 195, 196; 2A W. Barron & A. Holtzoff, Federal
Practice and Procedure § 651, p. 101 (Wright ed. 1961).
FN 12. "United States v. 3963 Bottles ... of ... 'Enerjol Double Strength,' supra, at 336.
FN 13. "Cf. George Campbell Painting Corp. v. Reid, supra at 289; Hale v. Henkel, supra, at 69-70."
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1/31/2019 ARMSTRONG v. FREEMAN UN. | 112 Ill. App.3d 1020... | p3d10201993| Leagle.com
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ARMSTRONG v. FREEMAN UN. COAL MIN. CO.

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112 Ill. App.3d 1020 (1983)
446 N.E.2d 296
WILLIAM J. ARMSTRONG, Plainti -Appellant, v. FREEMAN UNITED COAL MINING COMPANY, Division of Material Service Corp., Defendant-Appellee.
Appellate Court of Illinois — Third District.
Opinion led February 25, 1983.
Attorney(s) appearing for the Case
Nile J. Williamson, of Peoria, for appellant.
Murvel Pretorius, Jr., and Karen J. Steel, both of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellee.
Judgment a rmed.
JUSTICE SCOTT delivered the opinion of the court:
The appellant, William J. Armstrong, was the plainti named in a two-count complaint led in the circuit court of Peoria County. Named as a defendant
in that complaint was Armstrong's former employer, Freeman United Coal Mining Company. Count I of the complaint sought damages from the
defendant on the theory of retaliatory discharge. Count II of the complaint sought damages from the defendant based upon alleged violations of the
Illinois Human Rights Act. Following
[112 Ill. App.3d 1021]
hearings in the court below, the circuit judge entered summary judgment for the defendant as to count I and dismissed with prejudice count II. The
plainti appeals.
On September 9, 1975, the plainti was a section foreman employed at the defendant's Orient Mine No. 3 near Waltonville, Illinois. On that date, he
sustained an injury in a work-related accident. As a result of his injuries, the plainti was unable to return to the work in which he was previously
engaged, but the defendant made a sedentary position as a training instructor available for the plainti from December 22, 1975, until April 9, 1979. At
that time, plainti was reclassi ed as a mandatory training instructor, a position which he continued to hold until he was terminated from employment
on March 28, 1980. From the time of his injury until the time of his termination, the plainti claimed and collected temporary total disability bene ts
under the Workmen's Compensation Act.
Shortly more than two months after being terminated from employment, on June 5, 1980, the plainti led a complaint to adjust his workmen's
compensation claim arising out of the 1975 injury. It was the ling of this claim for adjustment, or at least plainti 's intent to le such a claim, that
allegedly spawned the causes of action set forth in counts I and II of the complaint in the instant action.
The tortious actions alleged in count I of plainti 's complaint are three in number. First, the plainti alleges that the defendant terminated his
l b h i d hi i h d h k ' i l i l h l i i ll h hi l
https://www.leagle.com/decision/19831132112illapp3d10201993 1/3
employment because he exercised his rights under the Workmen's Compensation Act. Alternatively, the plainti alleges that his employment was
terminated because the defendant anticipated his exercise of those same rights. Finally, the plainti alleges that the defendant refused to rehire or
recall the plainti , again because he exercised his rights. In urging that these allegations are su cient to constitute a cause of action, the plainti relies
primarily on the recent supreme court decision in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353.
After conducting pretrial discovery, the defendant led a motion for summary judgment as to count I. That summary judgment motion was supported
by excerpts from the discovery deposition of the plainti . Those excerpts, which were uncontradicted and uncontroverted by any depositions or
a davits submitted by the plainti , disclosed the following:
a. The plainti did not actually le his application for adjustment of claim until June of 1980, two months after he was terminated.
b. The plainti never told any agent of the defendant that he was going to le a workmen's compensation action.
[112 Ill. App.3d 1022]

c. There were nine other employees terminated at the same time as the plainti , most of whom did not have workmen's compensation claims.
d. No agent of the defendant ever told the plainti why he was terminated.
e. The plainti believed there was a company policy that people who le workmen's compensation claims would be terminated; however, no one in a
management position with the defendant ever suggested to the plainti that such a policy existed.
Moreover, the summary judgment motion of the defendant was supported by certain sworn testimony of its manager of training, Donald Dame. Mr.
Dame's testimony reveals that the plainti 's termination was part of a general cutback in the training section. Nine other employees were terminated at
the same time. Mr. Dame made the decision as to which employees would be terminated based on their quali cations, experience, and ability to do the
job.
• 1 The plainti 's opposition to the summary judgment motion is supported only by a davits of co-workers who espouse an unfounded belief that a
company policy of retaliatory discharge exists, yet those a davits o er no explanation as to why that belief might reasonable be held. Thus, we
conclude that no material issue of fact exists as to the defendant's intent in terminating the plainti 's employment. It is uncontradicted by any
competent a davit that the plainti was terminated before ling his adjustment of claim, and that the termination was part of a general cutback in
employment in the defendant's training section. Absent an intent to terminate employment in retaliation for exercise of rights under the Workmen's
Compensation Act, no cause of action exists, and summary judgment was properly granted. Cunningham v. Addressograph Multigraph Corp. (1980), 87
Ill.App.3d 396, 409 N.E.2d 89.
• 2 Count II of plainti 's complaint seeks damages for violation of the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1-101 et seq.). The
plainti urges that this count sets forth a cause of action within the scope of the supreme court's decision in Palmateer v. International Harvester Co.
(1981), 85 Ill.2d 124, 421 N.E.2d 876. The Palmateer case recognizes a cause of action for retaliatory discharge where the employer's decision to
terminate employment contravenes public policy. While the principles embodied in the Illinois Human Rights Act constitute the public policy of this
State, the same act which establishes the policies also creates certain remedies where those policies are violated. Speci cally, grievances under the Act
come within the administrative jurisdiction of the Illinois Human Rights
[112 Ill. App.3d 1023]
Commission. (Ill. Rev. Stat. 1981, ch. 68, par. 8-103.) Except by way of administrative review, the courts of this State have no jurisdiction to grant relief
for violations of the policies embodied in the Illinois Human Rights Act. (Ill. Rev. Stat. 1981, ch. 68, par. 8-111(D).) Thus, the public policy embodied in
the Illinois Human Rights Act di ers from the policy of promoting the e cient administration of criminal justice which concerned the court in the
Palmateer decision, in that in the rst instance, a civil cause of action has been expressly provided for by statutes, and in the latter instance, no civil
cause of action existed. In light of the express statutory provision requiring the pursuit of administrative remedies under the Illinois Human Rights Act,
we believe the circuit court correctly dismissed count II of plainti 's complaint for failure to exhaust those administrative procedures.
Finally, the plainti urges that the trial court erred when it excused the defendant from ling veri ed pleadings in answer to the original complaint. The
Civil Practice Act provides that where the complaint is veri ed, then answers subsequently led must also be veri ed, "unless veri cation is excused by
the court." (Ill. Rev. Stat. 1981, ch. 110, par. 2-605.) This is an area where the trial court has considerable discretion, and unless substantial prejudice has
resulted from the exercise of that discretion, it will not be the basis for reversible error. We nd from the record that the defendant properly petitioned
the court to excuse veri cation of the pleadings, and we fail to see how the circuit court's decision resulted in any prejudice to the plainti . For that
reason, we have sustained the decision reached by the trial judge.
In reliance on the reasoning hereinbefore set forth and the applicable precedents cited, we conclude that the judgment of the Circuit Court of Peoria
County should be a rmed.
A rmed.
STOUDER, P.J., and HEIPLE, J., concur.
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The undersigned, RICHARD J. MATHIAS, is the plaintiff in the captioned civil matter representing
himself pro se, and he certifies that on January 31, 2019, he served a copy of the foregoing
PLAINTIFF’S REPLY IN SUPPORT OF HIS NOTICE OF MOTION AND MOTION TO STRIKE
DEFENDANTS’ ANSWER TO AMENDED COMPLAINT by electronic service through the Regional
Justice Center for Clark County, Nevada's ECF System to all parties through counsel as follows:
Aaron D. Grigsby, Esq. Counsel for Defendants JOSEPH T. NOLD; ACCELERATED

THE GRIGSBY LAW GROUP LAW GROUP, INC.; and RONALD K. QUINN
624 S. 10th St.
Las Vegas, Nevada 89101
Tel: (702) 202-5235

Email: aaron@grigsbylawgroup.com
___ The undersigned also served the aforementioned document through the US Mail on
counsel as identified above.
Dated: January 31, 2019 RICHARD J. MATHIAS

PLAINTIFF
Pro Se

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27 plaintiff is seeking in this motion today.

24 repudiated by court decision).

26 1911. Specifically, NRS 15.010 (Verification of Pleadings) is a 5-paragaph rendering of the

6 2. The Nevada Supreme Court Has Expressly Incorporated The Verified

3 California, Illinois, and Virtually all Other States.

6 captioned “answer to amended complaint, affirmative defenses, counterclaim, and third-party

21 Dated: January 31, 2019: RICHARD J. MATHIAS

5 I, RICHARD J. MATHIAS, testify as follows:

10 complaint filed on November 27, 2018.

24 4. I have attached to this declaration as Exhibit A a complete current copy of the

4 progressing into the modern age.

3 7. The complete legislative history of NRS 15.010 represented by the statutory

26 inaccurate in one key respect.

12 relation to NRS 15.010, the subdivision’s title, or its historical content.

19 Complaint in California,” Legaldocspro Blog (Oct. 1, 2018); “Motion to Strike an Answer in

8 Dated: January 31, 2019: RICHARD J. MATHIAS

25 PLAINTIFF’S REPLY IN SUPPORT OF HIS MOTION TO STRIKE

LEGISLATIVE COUNSEL'S PREFACE

History and Objectives of the Revision

METHOD AND FORM OF PUBLICATION

CLASSIFICATION AND ARRANGEMENT

1911 CPA—Civil Practice Act of 1911

1911 Cr. Prac.—Criminal Practice Act of 1911

CITATION OF NEVADA REVISED STATUTES

“4JDCR” means Fourth Judicial District Court Rules.

Notes of Advisory Committees of the Nevada Supreme Court

References to Nevada Constitutional Debates and Proceedings

Cross References to Related Provisions of the Nevada Revised Statutes

References to Related Provisions of the Nevada Administrative Code

Notes of Judicial Decisions

Notes of Opinions of the Attorneys General

Notes of Open Meeting Law Opinions

Notes of Commission on Ethics Opinions

Selected Collateral Cases

1921, 221—Consolidated bond interest and redemption fund. R 1957, 2.

necessary to ensure the desired uniformity of numbering.

ALPHABETICAL LIST OF NEVADA SUPREME COURT CASES

CITY CHARTERS AND OTHER SPECIAL AND LOCAL ACTS

Russell W. McDonald Lorne J. Malkiewich

Frank W. Daykin Brenda J. Erdoes

STATE STATUTES OF A GENERAL NATURE FROM 1861

Prepared under legislative enactment, by

CARSON CITY, NEVADA

25 PLAINTIFF’S REPLY IN SUPPORT OF HIS MOTION TO STRIKE

Scheinwald v. Bartlett, Judge

Decided November 13th, 1928

It is also clear, from the first statutory citation herein-

OPINION falls within the rule stated. The default of respondent

1. The matter of allowing the filing of an answer after

In the former case the court said:

"If the defendant was in default, it was a matter much

2. It is contended that the unverified answer raised

25 PLAINTIFF’S REPLY IN SUPPORT OF HIS MOTION TO STRIKE

Opaco Lumber v. Phipps

Decided June 5th, 1959

*316 It is conceded that while there may be a dispute

Respondents contend, notwithstanding, that appel-

25 PLAINTIFF’S REPLY IN SUPPORT OF HIS MOTION TO STRIKE

25 PLAINTIFF’S REPLY IN SUPPORT OF HIS MOTION TO STRIKE

MARREN BUILDERS, INC., Plaintiff-Appellant,

Authorities (12) Thomas LAMPERT and Jane Lampert, Defendants-

VAUGHAN OIL CO. v. Caldwell, Troutt &