By the court it is ordered that the following rules be adopted in lieu of the rules heretofore promulgated:
Duties of the Clerk.
The clerk shall be the custodian of the records and seal of the court. He shall keep the following records at each place at which the regular terms of the court are held, viz: A journal in which he shall record all orders, decrees and judgments entered by the court, an appearance docket in which he shall enter the title of all claims or causes filed or brought in the court at that place, and in which he shall note the names of the attorneys, the filing of each paper, the appearance of parties, a brief statement of every return, motion, rule, order, judgment or other proceeding, with a reference to pages of the journal where each entry made can be found.
He shall also keep a book for the use of the court at each term, in which he shall enter each cause then pending at that place and undisposed of, by its title, leaving sufficient blank space opposite each case for the entry by the court of the memoranda or orders and judgments.
And the clerk shall keep an office at each place at which the regular terms of the court are held. Every case brought by a claimant of land under the provisions of the sixth and eighth sections of the" act approved March 3, 1891, establishing the court, shall be entitled in the name of such claimant or Claimants as plaintiff against the United States, and such other person or persons as may be designated as holding or claiming adversely to the plaintiff as defendant, and such title shall be preserved in the pleadings, and all other papers filed in the cause and in all journal entries made during its progress, and all writs, citations and processes issued therein; and all causes brought by instruction of the Department of Justice as provided by the eighth section of said act, and in all journal entries, writs, citations and processes therein, the United States shall be designated as plaintiff and the adverse party or parties as the defendant.
The clerk shall keep a roll of attorneys; any attorney who is a member of the bar of any court of record of the United States or of the State or Territory in which he resides shall upon exhibiting his certificate of admission to the clerk be entitled to have his name entered on the roll of attorneys and to appear in any case pending before the court.
Actions relating to lands in Wyoming, Nevada, Arizona or Utah, may at the election of the plaintiff, be brought and prosecuted at either of the places where the regular terms are held.
As To Filing of Petitions, Etc.
Every person filing a petition in this court for the confirmation of any claim to land under any grant shall, at the time of filing such a petition, deliver to the clerk of the court, or the deputy clerk, the original documents constituting or creating such grant, together with two transcripts or copies thereof, one of which shall be filed with the clerk and the other delivered to the United States attorney for this court for his official use.
If, however, any such original document cannot for any reason, be delivered as herein required, the reason thereof shall be stated, and if such document be in existence but not under the control of petitioner, the name and place of the holder shall be stated, and if it is claimed that any such document be lost or destroyed the facts and circumstances of such loss or destruction shall be stated. The clerk or deputy so receiving such documents shall receipt for same, and such documents shall not be removed from the custody of this court without special order made by the court or one of the justices, until the final determination of the confirmation or rejection of such claim. Whenever any original document in any other than the English language shall be delivered to the custody of the court as herein required or shall be filed with the clerk or shall be offered in evidence the party so delivering, filing or offering the same shall present therewith a translation thereof into English in duplicate, one copy of which shall be filed with the clerk and the other delivered to the United States attorney for this court for his official use. Upon the filing of any such translation it shall be the duty of the official translator at once to compare the same with the original thereof, and if he shall find such translation to be correct to indorse thereon or attach thereto his certificate of that fact; but if he shall find any material inaccuracy or defect therein he shall immediately report the same to the court. In any case satisfactory proof must be made of the fact that the claimant is the lawful successor in interest, in whole or in part, to the rights of the original grantee or grantees. And upon the application of the United States attorney the court or any justice thereof in vacation may order that an abstract of title be filed by the plaintiff showing the claim of title under which plaintiff claims; such abstract shall show all mesne conveyances when formal conveyances are relied on. And whenever a right is claimed under an informal transfer, as by oral contract or mere delivery of possession such fact shall be shown by the abstract of title. And upon the application of the United States attorney, the court or one of the justices in vacation may make an order requiring that copies of any or all mesne conveyances shall be filed with the clerk for the use of said attorney. Upon filing any petition the petitioner shall, at the time of the filing the same, deliver to the clerk or deputy a true copy thereof for each person to be served with such petition.
Witnesses and Their Testimony.
In all cases witnesses for either party shall be examined in open court upon the trial of the cause, unless they are sick, infirm, or otherwise unable to attend, and in that event either party desiring the testimony of such witness or witnesses shall make application to the court or any judge thereof to take the deposition of such witness or witnesses, and if it appears to the satisfaction of the court or judge that such witness or witnesses ought not or cannot be compelled to appear in court and testify, the court or judge shall make an order allowing the deposition of such witness or witnesses to be taken. Either party applying for an order to take the deposition as therein provided shall give notice to the adverse attorney of record of the time and place of making such application at least five days before the day upon which the same is to be made, and shall state the name and residence of each witness whose deposition is desired, and what is expected to be proven by each, together with reasons why such witness cannot be required to attend and testify, and the same shall be verified by the oath of some party in interest or an attorney of record in the cause, and in all cases where an order is made by the court or judge to take the deposition of any witness or witnesses, the time and place of each deposition shall be stated in said order.
Commission and To Whom Directed.
The commission to take depositions of any witness or witnesses may be directed to a commissioner of any circuit court of the United States or to any person qualified to take testimony by the laws of the State or Territory in which the same is to be executed. Any notary public or any minister, commissioner, charge de affairs of the United States residing and accredited to the country where the depositions may be taken or any consul general, consul, vice consul, commercial agent, deputy consul or consular agent of the United States residing in such country. The persons to whom the same shall be directed shall be named therein, and the place of his residence shall be given in a manner that he may be easily found. When the commission shall be directed to an officer of the State or Territory in which it may be executed a certificate of the official character and authority of such officer from such court or other proper source shall be returned with it. The manner of certifying and returning depositions shall be as provided in the laws of the State or Territory where taken.
Depositions~ How Opened and Filed.
Either party may give five days notice to the opposite party of his intention to apply to the clerk to open and file depositions which have been returned in the court, and if no objections shall be made in writing within the time specified such depositions may be published as of course. Objections which may be made as aforesaid shall be set down for hearing before a judge of the court on like notice.
Attorney for the United States.
The attorney for the United States for this court shall not be required to verify by oath any application or motion made to the court or any judge thereof.
When notice of any proceeding is required to be given to a party or attorney, and personal service of notice cannot be had, such notice may be given in such manner as the court or any justice thereof by special order may direct.
The following additional rules defining the duties of the stenographer and the clerk of this court are hereby adopted:
Immediately after the completion of the trial of each cause the stenographer shall extend his notes of the oral evidence given by witnesses on the trial of the cause and shall make two copies thereof which he shall deliver to the clerk properly certified by himself. He shall also properly identify in numbers or letters all depositions, documents and exhibits introduced and read upon the trial, and shall make such reference thereto in his notes as shall clearly identify the same and shall return the same with the extended copies of his notes to the clerk.
Upon receiving the extended copies of the notes of the stenographer as contemplated in the foregoing rule, the clerk shall file one copy thereof together with all depositions and documentary evidence introduced on the trial with the papers in the case, and the same shall constitute part of the record in the cause; the other copy of such extended notes shall be for the use of the court and counsel, until the decision of the case, when the same shall be deposited in the office of the attorney of the United States.
In every case in which an appeal shall have been prayed and allowed by the Court it shall be the duty of the clerk upon the application of counsel for the party so appealing at once and without fee or charge to make out and forward to the clerk of the Supreme Court a transcript of the record in the cause unless otherwise ordered by the court or a justice thereof in vacation or the party demanding the same. The transcript shall include copies of all pleadings in the case, the evidence both oral and documentary introduced on the trial and the decree order or judgment appealed from and the clerk shall certify to the correctness of the same under the seal of the court.
It is ordered that in all cases pending before this court, the plaintiffs therein shall file with the clerks at Santa Fe and Tucson all documentary evidence of title if the same be in their possession or control together with translations thereof, upon which they expect to rely upon the trial. If any such documentary evidence be not in the custody or under the control of the plaintiffs, copies and translations thereof shall be filed, together with statements as to where the originals can be found and they shall furnish the United States attorney with an abstract of all such documentary evidence.
The plaintiffs are also required to serve the United States attorney with an abstract of mesne conveyances and other evidence relied upon to connect themselves with the original grantee and they shall at least five days before the case comes on for trial file with the clerk for inspection all original documents that are to be used for that purpose.
It is ordered that Rule II heretofore adopted be amended by striking out the word duplicate in the 3d line page 7 printed rules and inserting in lieu thereof the word triplicate, and also by striking out the word one in the same line and inserting in lieu thereof the word two.
It is also ordered that in case of appeal the clerk may use one of the copies so filed with him in making one transcript. This order in so far as it requires the filing of papers in triplicate shall be applicable to all pending cases.
Ordered that Rule No. 2 be amended by adding after the words "official use" at the end of the first paragraph the following, "said copies shall be type written on white paper 13 inches long and 8 inches wide."