cities, or districts, and without regard to the residence of the person or persons, or owner or owners, known or unknown.

Cited, Bolan v. Bolan, 4 Nev. 151; Fitch v. Elko Co., 8 Nev. 273; State v. C. P. R. R. Co., 10 Nev. 78.

SEC. 48. In all suits brought for the collection of delinquent taxes, as provided for in the preceding section, the complaint and summons shall demand, and the judgment shall be entered for twenty-five per centum in addition to the tax of ten per centum thereon and costs; and such tax, penalty and costs shall not be discharged, nor shall the judgment therefor be satisfied except by the payment of the tax, original penalty, costs, and the additional penalty herein prescribed in full.

District attorneys' fees, costs, secs. 1603, 3677. Neither the board of county commissioners nor the district attorney have any authority to make any compromise or composition with delinquent taxpayers, or to release them from the payment of their

and thereafter, while said suit was pending and undetermined, the plaintiff, at the instance and by the consent of the defendant, in open court withdrew from the consideration of the court the question of plaintiff's right to recover the penalties in addition to said tax, without prejudice to plaintiff's right to bring an action for said penalties; that thereafter plaintiff brought this suit to recover said penalties: Held, upon a demurrer to said complaint, that this action might, although a part of the same cause of action, under the special facts alleged, be maintained for the penalties. State v. Cal. M. Co., 13 Nev. 289.

Withdrawal of penalties not a dismissal of the action. Held, that the complaint in this action does not show that the former action was dismissed, and that the demurrer upon the ground that there is another action pending for the same cause of action is well taken. Idem.

The rule of strict compliance with every form of law, required in cases where property is sold for taxes without a judgment, is not applicable to suits for delinquent taxes in the courts where jurisdiction has been once acquired. State v. C. P. R. R. Co., 10 Nev. 47.

Division of twenty-five per centum penalty. Hobart v. Huffaker, 11 Nev. 300.

3661. Form of complaint.

The tender of a portion of the money due for taxes, on condition that it be received for the whole, does not relieve a party from payment of the entire penalties upon the full amount. State v. Carson City Savings Bank, 17 Nev. 150, 151 (30 P. 703).

The penalties imposed by this section are enforceable, although the assessment was excessive as shown by the verdict of the jury, and although the defense interposed was that the assessment was out of proportion to and above the actual cash value of the property assessed. State v. V. & T. R. R. Co., 24 Nev. 54, 81, 87, 96 (49 P. 945).

If a taxpayer wishes to be relieved of the penalties fixed by law, by a legal tender of the amount of taxes due, when that amount, under the issues and the law, is to be determined by a court or jury, it is incumbent upon such taxpayer to make a sufficient tender. Idem.

If a tender, duly made, of a part of the taxes levied on property, is sufficient to pay what should have been legally assessed against the property it will save any penalties and costs attaching; but if not suf ficient, it will not. prevent penalties and costs attaching upon the entire amount of the taxes. State v. Alta S. M. Co., 24 Nev. 230 (51 P. 982).

SEC. 49. The complaint in said action State of Nevada, County of

in the county of

Cited, State v. Cal. M. Co., 13 Nev. 221.

may be as follows in form:
[Title of court.]

The State of Nevada v. A. B. & Co., and the real estate and improvements in [describing them]. The State of Nevada, by C. D., district or prosecuting attorney of the county of complains of A: B., and also the real estate and improvements [describing them with the same particularity as in actions of ejectment, or actions for the recovery of personal property], and for cause of action says that between the first Monday in January and the second Monday in August, A. D. one thousand eight hundred and in the State of Nevada, E. T., then and there being county assessor of said county, did duly assess and put down on an assessment roll all the real and personal property in said county subject to taxation, and that said assessment roll was afterward submitted to the board of equalization of said county, and was by said board duly equalized as provided by law; that said A. B. was then and there the owner of, and that there was duly assessed to him the above described real estate, improvements upon real estate and certain personal property, and that upon such property there has been duly levied for the fiscal year A. D. eighteen hundred and, a state tax of and a county tax of ........ dollars, amounting in the whole to all of which is due and unpaid; of which amount assessed and levied against the real estate, and improvements aforesaid, and dollars against the personal property. Wherefore, said plaintiff prays judgment against A. B. for the sum of

dollars,

dollars,

dollars was duly dollars against the

dollars [the whole of said tax], and a separate judgment against said real estate and improvements, for the sum of dollars [the tax due on real estate, improvements and personal property], and the ten per cent damages for nonpayment thereof at the time, as required by law, and the additional penalty of twenty-five per centum, also required by law, and for

such other judgment as to justice belongs, and for all costs subsequent to the assessment of said taxes and of this action.

C. D., district or prosecuting attorney, County of

If the property be assessed to an unknown owner, then any fictitious name may be inserted to represent such owner as defendant.

Cited, State v. Cal. M. Co., 13 Nev. 221.

3662. Additional recitals in complaint.

SEC. 50. In all suits brought by the district or prosecuting attorney of his county, or the attorney of incorporated cities and towns, for delinquent taxes, the said district attorney is hereby authorized and empowered to make, in the summons and complaint, additional and more certain description than that contained in the assessment roll of the real property assessed and upon which suit is brought for the taxes due thereon, as he may deem proper, whether the same is an estate in fee, possessory claims, or claim to or right of possession to any lands; and where such additional description is made, evidence may be introduced to prove that the property described in the summons and complaint is the same property as that described in the assessment roll; provided, that the complaint and summons shall aver such fact, and the judgment and execution, and all proceedings thereafter, shall follow the description given in the assessment roll, and the additional description given in the summons and complaint. When the complaint does not contradict the assessment, but merely gives a more particular description, it is proper to admit

testimony to show the property described in the assessment roll and the complaint are identical. State v. R. D. M. M. Co., 1 Nev. 523.

3663. Style of process-Procedure-Notice to delinquents, form of-Fees

Summons.

SEC. 51. Upon a complaint in a district court, a summons shall be issued as provided in other civil cases, except that it shall require the defendant and all owners of or claimants to any real estate or improvements described in the summons, known or unknown, to appear and answer the complaint filed in said court on a day certain, which day shall not be less than thirty, nor more than forty days from the date of the summons. The summons so issued shall be served by the sheriff, as follows:

First-As to the personal defendant, by delivering to and leaving with him a copy of the summons if found within the county. If the personal defendant cannot, after diligent search, be found within the county, then service may be made upon such personal defendant by publishing a notice, substantially in the form hereinafter prescribed, in some newspaper published in the county, if there be one, once each week for three successive weeks; and in case no newspaper is published in the county, or in case a newspaper is published in the county, and, from any cause whatever, the proprietor, manager or chief clerk of such newspaper refuse to publish the same (such facts to be shown by affidavit of the officer serving said summons), then the notice hereinafter prescribed may be posted at the courthouse door of the county in which the said suit is commenced, for twentyone days, and no order of court shall be necessary for such publication or posting, but it shall be the duty of the sheriff to publish or post said notice as herein provided, when the personal defendant cannot be found within the county, and to return the manner of service on the summons.

Second As to real estate and improvements thereon, or improvements when assessed to a person other than the owner of the real estate, and as to all owners of or claimants to the same, known or unknown, service of the summons may be made by posting a copy of the summons in some public

place on the real estate, or improvements, when assessed separately, for twenty-one days, and also by publishing or posting a notice in the same manner and for the same time as required in cases where the personal defendant cannot be found in the county. The last publication of the notice, and the last day of the twenty-one days, which the copy of the summons is required to be posted, shall expire at least ten days before the return day named in the summons. No other or further service shall be required, and the return of the officer, showing a service of the summons as herein required, shall be conclusive evidence of the due service of the summons upon the defendant named, the real estate and improvements thereon, when assessed separately, and upon all owners of and claimants to the same, known or unknown. If, on the return day named in the summons, the personal defendant fail to appear and answer the complaint, his default may be entered and final judgment entered by the clerk, as in other civil cases, for the amount of taxes with ten per cent, damages, twenty-five per centum additional penalty and costs; and if, upon the return day, no person appear and answer for the real estate and improvements thereof [thereon], or for the improvements when assessed separately, then the default of the said real estate and improvements thereon, or of the improvements, when assessed separately, and of all owners of or claimants to the same, known or unknown, may be entered, and final judgment rendered as in other civil cases. The notice required to be published or posted shall be substantially in the following form, and may include any number of cases in which the return day of the summons shall be the same: State of Nevada, County of

; District or prosecuting attorney's

office. Notice of suits commenced-To the following named defendants, and to all owners of, or claimants to the real estate and improvements thereon, or improvements, when assessed separately, hereinafter described, known or unknown. You are hereby notified that suits have been commenced in the [name of court, where held, etc.] by the State of Nevada, plaintiff, against each of the defendants hereinafter named, and each of the following described tracts or parcels of land with the improvements thereon, and improvements when separately assessed, and all owners of, or claimants to the same, known or unknown, to recover the tax and delinquency assessed to said defendant against said property, for the fiscal year commencing and ending.... and that a summons has been duly issued in each case; and you are further notified that unless you appear and answer the complaint filed in said cause, on or before the day of....... 18..., 18. judgment will be taken against you, and the real estate and improvements herein described, for the amount of tax and delinquency specified, and cost of suit. Tax and delinquency A. B., describe real estate and improvements as in summons, $..... C. D., personal property, assessed at $......

C. D., district or prosecuting attorney,

County.

It shall be the duty of the district or prosecuting attorney to file in the office of the county recorder a copy of each notice published or posted, with the affidavit of the publisher or foreman in the office, setting forth the date of each publication of the notice, the paper in which the same was published; and the officer shall file a copy of the notice posted, with an affidavit of the time and place of posting, which copies so filed as aforesaid, or certified copies thereof, shall be prima facie evidence of all facts therein contained, or contained in the affidavit, in all courts in this state. The publisher shall be entitled to two dollars for each case for publishing said notice, including the making of the affidavit. The recorder shall be entitled to fifty cents for filing each notice of publication, including affidavit; and said sums so allowed shall be taxed and collected as other costs in the case,

from the defendant, and in no case shall they be a charge against or collected from the county or state.

Cited, State v. W. U. T. Co., 4 Nev. 339; State v. Y. J. S. M. Co., 5 Nev. 428.

A complaint made by any person to the board of equalization, orally or in writing, that an assessment is too high or too low and asking that it be reduced or raised is sufficient to authorize the board to act. State v. Northern Belle M. & M. Co., 12 Nev. 89.

If the complaint is of undervaluation the board must give reasonable notice to the party assessed when to act upon a complaint. Idem.

is authorized to act in raising the assessment. Idem.

Cited, State v. Cal. M. Co., 13 Nev. 221; State v. Sadler, 21 Nev. 18 (23 P. 799).

The provisions of the practice act governing change of place of trial are not applicable to actions to recover delinquent taxes. State v. Shaw, 21 Nev. 222 (29 P. 321).

Where cattle are bred, born, branded and raised in a certain county, their habitat is in such county, and they are assessable there, notwithstanding some of them occasionally wander into other counties, or are driven temporarily into other counties, and also notwithstanding the home ranch of their owner is situate in another county and they are managed and controlled from such home ranch. Idem.

Statements made by the assessor in regard to the valuation of property before the board of equalization, in his official capacity and under the sanction of his official oath, is intended by the law to have the force of testimony and such a statement is competent evidence upon which the board 3664. Answer of defendant, what may set up.

SEC. 52. The defendant may answer, which answer shall be verified: First-That the taxes have been paid before suit.

Second-That the taxes with costs have been paid since suit, or that such property is exempt from taxation under the provisions of section 5 of this act. Third-Denying all claim, title or interest in the property, assessed at the time of the assessment.

Fourth-That the land is situate in and has been duly assessed in another county, and the taxes thereon paid.

Fifth-Fraud in the assessment, or in failing to comply with the provisions of this act; or that the assessment is out of proportion to and above the actual cash value of the property assessed; provided, however, that in such last mentioned case, where the defense is based upon the ground that the assessment is above the value of the property, the defense shall only be effectual as to the proportion of the tax based upon such excess of valuation, but in no such case shall an entire assessment be declared void. As amended, Stats. 1895, 39.

Cash value defined, sec. 3622.

Where property is claimed for taxation by two different counties, its regular assessment by one of the counties, and the payment of the taxes to that county prior to the commencement of the action for delinquent taxes in the other county, is a complete defense to the latter action. State v. C. P. R. Co., 21 Nev. 172 (26 P. 225).

The defendant in a suit brought for the collection of delinquent taxes has a right to interpose a demurrer to the complaint upon any of the grounds set forth as a cause of demurrer in the civil practice act. State v. Yellow Jacket S. M. Co., 14 Nev. 220.

An allegation that property was assessed "in an amount greatly in excess of that auhorized by law" is not sufficient to raise any issue as to the true cash value of the property, and to raise such issue such value should be alleged. State v. Sadler, 21 Nev. 13 (23 P. 799).

The statute expressly provides that "where the person complaining of the assessment has refused to give the assessor his list

under oath, as required under this act, no reduction shall be made by the board of equalization in the assessment made by the assessor." Held, that an allegation that defendant made application to the board of equalization for a reduction of his assessment must include the averment that the sworn statement was furnished to the assessor, or that no demand for it was made, in order to constitute a defense to an action for the taxes. Idem.

In an action to recover delinquent taxes and penalties an answer denying a possessory claim to the lands and stating facts showing that the rights claimed are untaxable, presents a good defense, although it does not deny all claim, title or interest in the property assessed. State v. C. P. R. R., 21 Nev. 94 (25 P. 442). Cited, Wright v. Cradlebaugh, 3 Nev. 349; State v. W. U. T. Co., 4 Nev. 342, 346.

Where, in answer to a tax suit, the defense was fraud in the assessment, and it was alleged that in a certain statement