CHAPTER 95.-THE LAWS OF NEBRASKA.

ARTICLE I.-REVISED STATUTES OF 1866.

SECTION 1. This act shall be known as "The Revised Statutes of Nebraska," and is hereby declared to be the law of the territory of Nebraska, and shall take effect and be in force from and after the first day of July, in the year of our Lord one thousand eight hundred and sixty-six. [R. S. 683. G. S. 1079.]

SEC. 2. "An act to establish a code of civil procedure," approved November 1, 1858, and an act supplemental thereto, approved November 4, 1858, "An act to adopt and establish a criminal code for the territory of Nebraska," approved 1858, all laws and acts amendatory of and supplemental to said code, and all acts and laws of a general nature relative to the civil and criminal laws and proceedings of this territory, passed prior to the eleventh session of the legislative assembly begun and held at Omaha on the first Thursday after the first Monday in January, 1866, and all acts and parts of acts conflicting with the provisions of this revision are hereby repealed; Provided, The re-enactment, amendment, or repeal of any law, act, title, section, chapter, or provision of the civil or criminal code, or of any general law of this territory, shall in no wise affect any contract, right, claim, interest, title, action, or liability which may have accrued, or any order, judgment, decree, sale, recognizance, instrument, or proceeding made, entered, or had under any provision of the laws hereby re-enacted, amended, or repealed, nor shall such re-enactment, amendment, or repeal in any wise affect any criminal prosecution heretofore commenced, or any fine, penalty, forfeiture, or punishment for crimes and misdemeanors committed before the taking effect of this revision, but such prosecution shall be carried on and continued in the manner now provided by law, and all fines, penalties, and forfeitures heretofore incurred, and crimes and misdemeanors committed, shall be prosecuted the same as if no re-enactment, amendment, or repeal had been made. [Id.]

SEC. 3. Whereas, Certain discrepancies exist between the original rolls on file in the office of the secretary of the territory, and the published laws of the eleventh session of the legislative assembly of this territory; Be it further enacted, That whenever such discrepancies exist, the volume of laws published under the title of "The Revised Statutes of the territory of Nebraska," in force July 1, 1866, shall be taken and received as the laws of this territory, until afterwards amended or repealed. [1867, 12 Sess. Ter. § 2, 7.]

SEC. 4. That the volume of laws published under the title of "The Revised Statutes of the territory of Nebraska," and the appendix thereto, shall be hereafter received in all courts of this territory, anything in the original rolls on file in the secretary's office to the contrary notwithstanding. [Id. § 3.]

ARTICLE II.-COMPILED STATUTES 1881.

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

CHAP. 95, ART. 1. Secs. 1-2 R. S. 683, and secs. 2-3 of "An act to amend the code of civil procedure." Laws 12th Sess. Terr., 7.

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. 34 Id., 680.

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 Nebraska 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. 93.]

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 IL-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

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. 8 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 statute considered. 5 Neb. 870. 7 Id. 404. 9 Id. 233. 15 Id. 196. 20 Id. 593. Benefits of statute may be waived and will be unless pleaded. 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. 18 Neb. 83. Dismissal without hearing on merits, and judgment of non-suit not a bar. 11 Neb. 322. 14 Id. 418. 16 Id. 387. Language of the statute limits time in which actions may be commenced after the accruing of the cause of action, or the right to enforce the action is brought only; but it applies equally to the same facts or rights when they are plead as a defense or counterclaim, or in the nature of a cross action. 21 Neb. 420. General provisions of code apply to cities of the second class having more than 5.000 inhabitants, notwithstanding a provision in the act creating such cities, that action shall be brought within six months. 23 Neb. 775.

SEO. 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, 237 On facts stated, Held, That defendant having been in adverse possession with title derived from sale under trust deed for more than 10 years, action was barred. 22 Neb. 696. Statute will not run in favor of occupant, unless occupancy and possesion are adverse to true owner; possession must be as owner and adverse to every other person. 23 Neb. 80. Party claiming title to land, must not only have a possession adverse to true owner, but occupy same as owner during whole statutory period. 21 Neb. 385. One who has been in open, notorious, exclusive possession of real estate for ten years, becomes vested with valid title. 21 Neb. 683. Rule concerning adverse possession applicable to public roads in favor of public so far as it relates to mere easement. 21 Neb. 232. Burden of proof in action of ejectment, where defendant relies upon a statute of limitations as a defense. 21 Neb. 270. Where statute has begun to run in favor of cestui que trust, it will not be suspended by death of trustee. 21 Neb. 411. Where cestui que trust is in possession of trust property as his own, statute will not run against him in favor of trustee, so as to bar his right

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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, 1869.1

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. 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-Torts— Fraud.]-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 [be] deemed to have accrued until the discovery of the fraud.

SEC. 13. [Injury to character-Assault-Malicious prosecution -False 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

to the property. 21 Neb. 411. Where trust relation exists by act of law, statute runs in favor of persons charged with trusteeship. 26 Neb. 33. Where a party entering land has complied with the law in all respects to entitle him to a patent therefor, statute will run against party entering land or his grantee in favor of one holding adversely from day of such entry. 23 Neb. 847. Where plaintiffs in ejectment claim title through their father, his death and their minority will not arrest running of statute. 24 Neb. 673. In a dispute as to boundary lines between two tracts, Held, That leasing by defendant of plaintiff's tract outside that enclosed by that of defendant would not prevent running of statute as to strip in dispute, it being enclosed as part of defendant's tract and occupied by him as owner. 24 Neb. 669. 25 Id. 766. Real estate deeded by husband to wife. 13 Neb. 455. Rents and profits. 12 Neb. 544. Exclusive possession excludes tax liens. 27 Neb. 829. Purchase of tax title does not cause break in running of statute. 27 Neb. 47. Absolute title acquired by ten years' exclusive adverse possession. 27 Neb., 57. 80 Id., 373. 31 Id., 599. Under color of title. 31 Id., 51. Under tax deed. Id., 793. Color not essen. tial. Id., 803. For all purposes of ownership. 32 Id., 666.

SEC. 8.

Cited 16 Neb. 570.

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. Action for damages for breach of covenants of warranty in a deed may be brought within five years. 21 Neb. 532. Action on foreign judgment not barred until defendent had completed five years residence in this state. 24 Neb. 186. Foreign judgment revived in foreign state and action brought thereon in this state within five years, Held, Not barred. 25 Neb. 691. Judgment of another state, Held, To be a foreign judgment and action barred thereon unless commenced within 5 years. 25 Id. 111. Statute runs for or against school districts in same manner as it does for or against individuals. 22 Neb. 206. (1 Neb. 173 distinguished.) Statute runs against village warrants; barred in five years. 24 Neb., 246. And see 17 Neb., 92. 19 Id., 93. 32 Id., 99. Foreign judgment revived by publication. Id., 556.

SEC. 12. Cited 4 Neb., 95. Action for rent and profits barred in four years; recovery not barred by occupying claimant's act. 12 Neb., 544. Action by junior incumbrancer to redeem land sold at execution or judicial sale must be brought within four years. 21 Neb., 420. 24 Id., 802. Evidence examined and Held, Insufficient to bar prosecution for bastardy. 24 Neb., 781. Creditor's knowledge of fraudulent character of conveyance. 28 Neb.. 479. Replevin of mortgaged chattels unlawfully seized. 31 Id., 622.

SEC. 13. When right of action for malicious prosecution is complete, see 13 Neb., 466. Action against stock holder not within section. 29 Neb., 483, 302, 798.

SEC. 14.

Action on county treasurer's bond barred in ten years. 22 Neb., 219. 229.

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. 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

SEC. 16. Cases of trusts. 16 Neb. 121. 20 Id. 594. Where there is no continuing trust, and money received by agent as his, not to be paid at a date later than its receipt, statute runs in his favor from time he received money. 20 Neb. 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. Failure to pay interest on school lands for fifteen years, during ten of which property has been in possession of subsequent purchaser; action by first purchaser barred. 25 Neb. 423. Continuing nuisance; recovery of damages in one action not a bar to recovery damages thereafter sustained. 22 Neb., 352. Tax liens. 26 Neb., 562. Actions by mandamus. 30 Id., 520. 34 Id., 196. Stale claims. 35 Id., 407. To correct mistake. 30 Id., 385. SEC. 17. See chap. 53, ante, and 17 Neb., 667. See also, 5 Neb., 89, 465. 6 Id., 391. 9 Id., 232. SEC. 18. Cited 27 Neb., 251.

SEC. 19. Jurisdiction attaches when defendant is legally served. 2 Neb., 136. Summons served on defendant Issued after action barred by statute does not confer jurdiction. 16 Neb., 5. 53 N. W. R., 1025. See also 11 Neb., 343. 13 Id., 231. 19 Id., 36.

SEC. 20. Mere temporary absence does not suspend statute, where debtor has a usual place of residence where summons can be served on him; usual place of residence means abode at time of service. 4 Neb. 30. On facts stated, Held, That residence of wife was not residence of husband. 5 Neb. 88. Petition on note prima facie barred, examined, and Held, Insufficient to take case out of the operation of the statute. 16 Neb. 677. "Usual place of residence" determined from facts. 22 Neb. 553. Section applies to all personal actions. 12 Neb. 472. Section cited 24 Neb. 86. 25 Id. 111. 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. Execution of deed or mortgage is not an acknowledgment in writing of an existing liability, debt, or claim within the provisions of this section. 22 Neb., 574. Acknowledgment to attorney not within statute; must be unqualifiedly. 32 Id., 99.