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NRCP Rule 53
RULE 53. MASTERS
(a) Appointment and Compensation. (1) The court
in which any action is pending may appoint a special master therein. As used in
these rules the word “master” includes a referee, an auditor, and an examiner.
The compensation to be allowed to a master shall be fixed by the court, and
shall be charged upon such of the parties or paid out of any fund or subject
matter of the action, which is in the custody and control of the court as the
court may direct. The master shall not retain his report as security for his
compensation; but when the party ordered to pay the compensation allowed by the
court does not pay it after notice and within the time prescribed by the court,
the master is entitled to a writ of execution against the delinquent party.
(2) Any party may object to the appointment of any
person as a master on one or more of the following grounds:
1. A want of any of the qualifications prescribed by
statute to render a person competent as a juror.
2. Consanguinity or affinity within the third degree
to either party.
3. Standing in the relation of guardian and ward,
master and servant, employer and clerk, or principal and agent to either party,
or being a member of the family of either party, or a partner in business with
either party, or being security on any bond or obligation for either party.
4. Having served as a juror or been a witness on any
trial between the same parties for the same cause of action, or being then a
witness in the cause.
5. Interest on the part of such person in the event of
the action, or in the main question involved in the action.
6. Having formed or expressed an unqualified opinion
or belief as to the merits of the actions.
7. The existence of a state of mind in such person
evincing enmity against or bias to either party.
(b) Reference. A reference to a master shall be
the exception and not the rule. In actions to be tried by a jury, a reference
shall be made only when the issues are complicated; in actions to be tried
without a jury, save in matters of account and of difficult computation of
damages, a reference shall be made only upon a showing that some exceptional
condition requires it.
(c) Powers. The order of reference to the
master may specify or limit his powers and may direct him to report only upon
particular issues or to do or perform particular acts or to receive and report
evidence only and may fix the time and place for beginning and closing the
hearings and for the filing of the master’s report. Subject to the
specifications and limitations stated in the order, the master has and shall
exercise the power to regulate all proceedings in every hearing before him and
to do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order. He may require the production before
him of evidence upon all matters embraced in the reference, including the
production of all books, papers, vouchers, documents, and writings applicable
thereto. He may rule upon the admissibility of evidence unless otherwise
directed by the order of reference and has the authority to put witnesses on
oath and may himself examine them and may call the parties to the action and
examine them upon oath. When a party so requests, the master shall make a
record of the evidence offered and excluded in the same manner and subject to
the same limitations as provided in Rule 43(c) for a court sitting without a
jury.
(d) Proceedings.
(1) Meetings. When a reference is made, the clerk
shall forthwith furnish the master with a copy of the order of reference. Upon
receipt thereof unless the order of reference otherwise provides, the master
shall forthwith set a time and place for the first meeting of the parties or
their attorneys to be held within 20 days after the date of the order of
reference and shall notify the parties or their attorneys. It is the duty of
the master to proceed with all reasonable diligence. Either party, on notice to
the parties and master, may apply to the court for an order requiring the
master to speed the proceedings and to make his report. If a party fails to
appear at the time and place appointed, the master may proceed ex parte or, in
his discretion, adjourn the proceedings to a future day, giving notice to the
absent party of the adjournment.
(2) Witnesses. The parties may procure the
attendance of witnesses before the master by the issuance and service of
subpoenas as provided in Rule 45. If without adequate excuse a witness fails to
appear or give evidence, he may be punished as for a contempt and be subjected
to the consequences, penalties, and remedies provided in Rules 37 and 45.
(3) Statement of Accounts. When matters of
accounting are in issue before the master, he may prescribe the form in which
the accounts shall be submitted and in any proper case may require or receive
in evidence a statement by a certified public accountant who is called as a
witness. Upon objection of a party to any of the items thus submitted or upon a
showing that the form of statement is insufficient, the master may require a
different form of statement to be furnished, or the accounts or specific items
thereof to be proved by oral examination of the accounting parties or upon
written interrogatories or in such other manner as he directs.
(e) Report.
(1) Contents and Filing. The master shall
prepare a report upon the matters submitted to him by the order of reference
and, if required to make findings of fact and conclusions of law, he shall set
them forth in the report. He shall file the report with the clerk of the court
and in an action to be tried without a jury, unless otherwise directed by the
order of reference, shall file with it a transcript of the proceedings and of
the evidence and the original exhibits. The clerk shall forthwith mail to all
parties notice of the filing.
(2) In Non-Jury Actions. In an action to be
tried without a jury the court shall accept the master’s findings of fact
unless clearly erroneous. Within 10 days after being served with notice of the
filing of the report any party may serve written objections thereto upon the
other parties. Application to the court for action upon the report and upon
objections thereto shall be by motion and upon notice as prescribed in Rule
6(d). The court after hearing may adopt the report or may modify it or may reject
it in whole or in part or may receive further evidence or may recommit it with
instructions.
(3) In Jury Actions. In an action to be tried
by a jury the master shall not be directed to report the evidence. His findings
upon the issues submitted to him are admissible as evidence of the matters
found and may be read to the jury, subject to the ruling of the court upon any
objections in point of law which may be made to the report.
(4) Stipulation as to Findings. The effect of a
master’s report is the same whether or not the parties have consented to the
reference; but, when the parties stipulate that a master’s findings of fact
shall be final, only questions of law arising upon the report shall thereafter
be considered.
(5) Draft Report. Before
filing his report a master may submit a draft thereof to counsel for all
parties for the purpose of receiving their suggestions.
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