CH. 95

1HE LAWS OF NEBRASKA.

ARTICLE II.-COMPILED STATUTES 1881.

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SECTION 1. (Compilation.]-The public acts now in force, including the Revised Statutes of 1866, and the public acts and laws passed since that revision, and which may be passed by the legislature at its present session, shall be compiled, arranged and put into chapters, with appropriate heads and titles, and with reference to decisions of the supreme court. [1881 § 1, chap. 79.]

SEC. 2. [Compiler-Price.]-The said statutes shall be compiled and published by Guy A. Brown, of Lancaster county, upon the condition that all expenses connected with the preparation and publication thereof shall be borne by him, and the sale price of each copy when published, shall not exceed five dollars; Provided further, That the said Guy A. Brown shall furnish to the state of Nebras ka all copies of said statutes which may be required by the state, at a price not to exceed two dollars and fifty cents per copy; Provided further, That said statutes shall be equal in quality of paper and binding to the General Statutes of 1873, be set with type of the same size and contain at least one-third more matter on a page, and be thoroughly indexed. Said statutes to be published on or before July 1st, 1881.

SEC. 3. [Bond.]-The said compiler shall give bond in the sum of five thousand dollars with at least three sureties conditioned for the faithful performance of his duties, and to carry into effect the provisions of this act, which bond shall be approved by the secretary of state and filed in his office, and thereupon the said secretary of state shall permit the said compiler, when the same are not in use by him, to take the original rolls of said laws for the purpose of making accurate copies thereof for said statutes, the same to be returned upon publication of said statutes, and whenever required by the secretary of state.

SEC. 4. [Receivable in evidence.]-The said statutes when published shall be accompanied by a certificate of the compiler that the same are true and accurate copies of, the said original rolls, and thereupon the said statutes, and subsequent editions founded thereon, shall be competent evidence of the several acts and resolutions therein contained, in all the courts of this state, without further proof or authentication; Provided, That the compiler shall furnish copies of any subsequent editions required by the state at the same price as the original edition, to-wit; two dollars and fifty cents per copy. [Amended 1885, chap. 98.]

ART. II. "An act to provide for the publication of a compilation of the statutes." Approved and took effect Feb. 26, 1881. See 12 Neb. 235. 17 Id. 140. 20 Id. 377.

PART II.

CODE OF CIVIL PROCEDURE.

PRELIMINARY PROVISIONS.

SECTION 1. [Construction of code.)-The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. Its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object and assist the parties in obtaining justice. R. S. 394. G. S. 524.]

TITLE I.-FORM OF CIVIL ACTIONS.

SEC. 2. [One form of action.]--The distinction between actions at law and suits in equity, and the form of all such actions and suits heretofore existing are abolished; and in their place there shall be hereafter but one form of action, which shall be called a civil action. [Amended 1867, 71.]

SEC. 3. (Parties-Designation.]-In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

SEC. 4. [Issues-Feigned-Not plead.]-There can be no feigned issues; but a question of fact not put in issue by the pleadings may be tried by a jury, upon an order for the trial, stating distinctly and plainly, the question of fact to be tried; and such order is the only authority necessary for a trial.

TITLE II.-TIME OF COMMENCING CIVIL ACTIONS.

SEC. 5. [Limitation.]-Civil actions can only be commenced within the time prescribed in this title, after the cause of action shall have accrued.

SEC. 6. [Recovery of real property-Mortgages.]—An action for the recovery of the title or possession of lands, tenements or hereditaments, can only be brought within ten years after the cause of such action shall have accrued. This section shall be construed to apply also to mortgages. [1869 § 1, 67. Took effect July 1, 1869.]

SEC. 7. (Same-Persons under disability.]-Any person entitled to commence any action for the recovery of the title or possession of any lands, tenements or hereditaments, who may be under any legal disability when the cause of action accrues, may bring such action within ten years after the disability is removed, and at no time thereafter. [R. S. 395. Amended to take effect Sept. 1, 1873. G. S. 525.]

SEC. 1. Object stated. 2 Neb. 137. Construction liberal. 14 Neb. 302. General rules. 17 Neb. 204,322. SEC. 2. Distinction between law and equity not abolished. 3 Neb. 115. 4 Id. 587. Distinction stated. 6 Neb. 85. Fictitious issues are abolished. 3 Neb. 116. SEC. 4. Equity case not subject to trial by jury, though special facts may be submitted to jury. 10 Neb. 188. 15 Id. 108. And defendant not entitled to jury trial on foreclosure of mechanic's lien. 15 Neb. 437. And jury not allowed in contempt cases. 13 Neb. 451.

SEC. 5. Statute does not run against the state. 11 Neb. 409. Construction and general operation of statate considered. 5 Neb. 370. 7 Id. 404. 9 Id. 233. 15 Id. 196. 20 Id. 593. Benefits of statute may be waived and will be uniess pieaded. 15 Neb. 196. 16 Id. 664. Statute may be interposed on demurrer. 3 Neb. 87. Face of petition should show, however, that statute has run. 5 Neb. 464. 9 Id. 232. 16 Id. 5. Mere want of knowledge of facts, which if known would be sufficient to sustain a cause of action, will not prevent the running of the statute. 16 Neb. 83. Dismissal without hearing on merits, and judgment of non-suit not a bar. 11 Neb. 322. 14 Id. 418. 16 Id. 387.

SEC. 6. Original section read "twenty-one years." Change in running period of statute applies to action subsequently brought. 4 Neb. 46. 20 Id. 353. As against right to redeem conveyance absolute, but in fact a mortgage, statute does not run until tender of money due, and refusal to reconvey. 1 Neb. 344. Statute commences to run at once on breach of covenant against incumbrances. 7 Neb. 404. 10 Id. 150. Foreclosure of mortgage barred in ten years. 8 Neb. 268. 12 Id. 469. 14 Id. 418. 17 Id. 259. 20 Id. 500. Notes secured by mortgage continue as evidence of debt until mortgage is barred. 20 Neb. 126, 132. See 2 Neb. 26. 5 Id. 466. 6 Id. 391. 9 Id. 232. Adverse possession as a bar. 4 Neb. 47. 13 Id. 356, 417. 17 Id. 77, 81,287. Beal estate deeded by husband to wife. 13 Neb. 455. Rents and profits. 12 Neb. 544.

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SEC. 8. [Forcible entry and detainer.]-An action for the forcible entry and detainer, or forcible detainer only, of real property can only be brought within one year after the cause of such action shall have accrued.

SEC. 9. [Other civil actions-Limitations.]-Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued:

SEC. 10. [Written instrument-Foreign judgment.]—Within five years, an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment.

SEC. 11. [Parol contract.]-Within four years, an action upon a contract, not in writing, expressed or implied; an action upon a liability created by statute, other than a forfeiture or penalty.

SEC. 12. [Trespass to realty - Personalty-Replevin-TortsFraud.--Within four years, an action for trespass upon real property; an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud, but the cause of action in such case shall not deemed to have accrued until the discovery of the fraud.

SEC. 13. [Injury to character-Assault-Malicious prosecutionFalse imprisonment-Penalty.]—Within one year an action for libel, slander, assault and battery, malicious prosecution or false imprisonment; an action upon a statute for a penalty or forfeiture, but where the statute giving such action prescribes a different limitation, the action may be brought within the period so limited.

SEC. 14. [Official bond – Undertaking. —An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any other officer, or upon the bond or undertaking given in attachment, injunction, or in any case whatever required by statute, can only be brought within ten years.

SEC. 15. [Contract-Failure of consideration.]-Actions brought for damages growing out of the failure, or want of consideration of contracts, express or implied, or for the recovery of money paid upon contracts, express or implied, the consideration of which has wholly or in part failed, shall be brought within four years.

SEC. 16. [Other relief.]-An action for relief not herein before provided for, can only be brought within four years after the cause of action shall have accrued.

SEC. 17. [Legal disabilities-Action in rem.-If a person entitled to bring any action mentioned in this title, except for a penalty or forfeiture, be, at the time the cause of action accrued, within the age of twenty-one years, a married woman, insane, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this title after such disability shall be removed. The absence from the state, death, or other disability of a non-resident, save the cases mentioned in this section, shall not operate to extend the period within which actions in rem shall be commenced by and against such non-resident, or his representatives.

SEC. 8. Cited 16 Neb. 576.

SEC. 9. See note to Sec. 5.

SEC. 10. County warrants not within statute. 1 Neb. 382. Statute will not run in two different states at same time; commences to run on removal into state. 9 Neb. 501. 12 Id. 501. Court cannot add time of residence in another state to time here to create bar. 12 Neb. 501. On facts stated promise and payment, Held, Not to take debt out of statute. 2 Neb. 22. 11 Id. 418. 12 Id. 469. Promises held, to take debt out of statute. 16 Neb. 21, 55. Receipt and indorsement on promissory note by the holder of money realized from a collateral left with him by the maker for that purpose, will remove bar of statute. 14 Neb. 194. Pleadings. 16 Neb. 677. A note secured by a mortgage is not a specialty" within the meaning of the statute. 5 Neb. 87. Part payment or a new promise upon an outlawed firm note, made by one partner, after dissolution, does not revive the debt against another partner. 5 Neb. 370. A judgment of a state court properly authenticated is conclusive upon the merits of the suit, but the statute of limitation may be plead in an action brought in another state upon such judgment. 6 Neb. 428. And see 17 Neb. 92. 19 Id. 93.

SEC. 12. Cited 4 Neb. 95. Action for rent and profits barred in four years; recovery not barred by oceupying claimant's act. 12 Neb. 544.

SEC. 13. When right of action for malicious prosecution is complete, see 13 Neb. 466.

SEC. 16. Cases of trust. 16 Neb. 121. 20 Id. 594. Motion to retax costs. 17 Neb. 310. Revivor of actions. 18 Neb. 81. When statute ceases to run. 19 Neb. 36. School bonds. 19 Neb. 93. School land interest. 20 Neb. 202,

SEC. 17. See chap. 53, ante, and 17 Neb. 667. See also 5 Neb. 89, 465. 6 Id. 391. 9 Id. 232.

SEC. 18. [Actions barred by laws of other states.]-All actions, or causes of action, which are or have been barred by the laws of this state, or any state or territory of the United States, shall be deemed barred under the laws of this state.

SEC. 19. [Action when commenced.]-An action shall be deemed commenced, within the meaning of this title, as to the defendant, at the date of the summons which is served on him; where service by publication is proper, the action shall be deemed commenced at the date of the first publication, which publication shall be regularly made.

SEC. 20. [Defendant--Out of the state--Concealed.]-If, when a cause of action accrues against a person, he be out of the state, or shall have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the state, or while he is absconded or concealed; and if, after the cause of the action accrues he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.

SEC. 21. [Action barred by laws of other state.]--When a cause of action has been fully barred by the laws of any state or country where the defendant has previously resided, such bar shall be the same defense in this state as though it had arisen under the provisions of this title.

SEC. 22. [Part payment-New promise-Acknowledgment.]— In any cause founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made in writing, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise.

SEC. 23. [Parties-Name-Initials-Contractions.]-In all actions upon bills of exchange or promissory notes, or other written instruments, whenever any of the parties thereto are designated by the initial letter or letters, or some contraction of the christian or first name or names, it shall be sufficient to designate such person by the name, initial letter or letters, or contraction of the first name or names, instead of stating the christian or first name or names in full.

SEC. 24. [Associations-Firms, how named.]-Any company or association of persons formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property in this state, and not incorpor ated, may sue and be sued by such usual name as such company, partnership, or association may have assumed to itself or be known by, and it shall not be necessary in such case to set forth in the process or pleading, or to prove at the trial, the names of the persons composing such company.

SEC. 25. [Same-Process-Service.]-Process against any such company or firm shall be served by a copy left at their usual place of doing business within the county, with one of the members of such company or firm, or with the clerk or general agent thereof, and executions issued on any judgments rendered in such proceedings shall be levied only on partnership property.

SEC. 26. [Same-Security for costs.-In cases where a company shall sue in its partnership name, such company shall procure the writ to be endorsed by a responsible surety, resident of the county, for costs, or otherwise give security for costs.

SEC. 19. Jurisdiction attaches when defendant is legally served. 2 Neb. 136. See also 11 Neb. 343. 13 Id. 231. 16 Id. 5. 19 Id. 36. SEC. 20. Temporary absence of debtor. 4 Neb. 29, 30. 5 Neb. 88. 16 Id. 677. See also 12 Neb. 501, Section applies to all personal actions. 12 Neb. 472.

SEC. 22. Acknowledgment and promises held to take case out of statute. 16 Neb. 56. Partial payment, acknowledgment of debt or promise to pay after debt barred will revive it. 16 Neb. 23. Payment of dividend by assignee of insolvent. 17 Neb. 92. Promise must be in writing. 20 Neb. 594.

SEC. 23. Provisions strictly construed. 7 Neb. 245.

SEC. 24. See 9 Neb. 216. 13 Id. 409. 14 Id. 107. 20 Id. 323.

SEC. 26. Security should be given before summons is delivered for service. Failure to do so, however, not fatal. 12 Neb. 40. Giving of security is essential prerequisite to maintenance of action. 7 Neb. 246.