LAWS OF NEBRASKA

RELATIVE TO THE

COLLECTION OF DEBTS,

TAKING OF DEPOSITIONS, ETC.

REVISED EXPRESSSLY FOR HUBBELL'S LEGAL DIRECTORY, DECEMBER 1, 1906, BY ISAAC E. CONGDON, OF OMAHA, NEBRASKA.

Acknowledgments.

Actions. There is but one form of action, called a civil action, which must be com menced in the name of the real party in interest, except plaintiff be an executor, administrator, guardian, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, or other party expressly authorized by statute to sue. The distinction between actions at law and suits in equity is abolished by statute, but observed by the courts in manner of trials.

Actions are commenced by filing in the office of the clerk of the proper court a petition and causing summons to be issued thereon. Actions concerning real estate must be brought in the county or counties where the same is situate. Actions against a corporation created by the laws of this State may be brought in the county in which it is situated or has its principal place of business; but if such corporation be an insurance company, action may be brought in the county where the cause of action or some part thereof arose, or in the county where any contract has been violated or is to be performed. Personal actions must be brought in the county in which the defendant or some one of the defendants resides or may be summoned. When action is rightly commenced in any county summons may issue to any county in the State. An action against a non-resident may be brought in any county in which he has property. Summons returnable second Monday after its date; and when issued to another county may be made returnable third Monday after its date; and different summonses may issue to different counties at the same time.

The only pleadings allowed are: 1st. The petition, filed when action commenced. 2d Answer or demurrer to petition, filed by third Monday after return day of summons. 3d. Demurrer or reply to answer, filed by fifth Monday after return day of summons. 4th. Demurrer to the reply.

Actions stand for trial or hearing as soon as issues are joined.

In justices' courts, where personal service can be obtained, the summons is made returnable not less than three nor more than twelve days from date, and unless adjourned for cause, and on proof of claim, judgment is rendered on return day of summons. See Security for Costs.

Administration of Decedents' Estates.-See Claims against Estates of De

ceased Persons.

Affidavits. An affidavit may be used to verify a pleading, to prove the service of a summons, notice, or other process in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or to support a motion, and in other cases permitted by law. An affidavit may be made in and out of this State, before any person authorized to take depositions, and must be authenticated in the same way, except affidavits verifying pleadings, which must be signed by the affiant, and officer taking same shall certify that it was sworn to or affirmed before him, and signed in his presence. An attorney who is a notary public may swear a client to any pleading or other paper or affidavit in any proceeding of the courts of this State.

Aliens. "No distinction shall ever be made by law between resident aliens and citizens in reference to the possession, enjoyment, or descent of property." (Constitution, art. I. § 25.) No non-resident aliens, nor corporations not incorporated under the laws of Nebraska, can acquire title to or hold lands or real estate in this State except: - First. Widows or heirs of aliens who have heretofore legally acquired lands in this State may hold such lands for a period of ten years, at the end of which time, unless the lands be in the mean time sold or the alien heir becomes a resident, such lands may, by proceedings in the district court, be forfeited to the State, and the heirs of persons who would have been entitled to such lands shall be paid the full value thereof, to be ascertained by appraisement. Second. An alien owning land at the time this act takes effect may dispose of the same during his lifetime and take security for the purchase-money, with the same right as a citizen of the United States. Third. Said aliens and corporations may hold and take liens upon real estate, and may hold or take title to real estate subject to such liens. They may enforce liens and judgments, and purchase at any sale made for the purpose of enforcing

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LAWS OF NEBRASKA.

collection of such debt or judgment. Lands so acquired shall be sold within ten years or
revert to the State, compensation being made as in case of aliens. Fourth. This act does
not apply to real estate necessary for construction and operation of railroads. Fifth. Nor
to such real estate as shall be necessary for erecting and maintaining manufactories. Sixth.
Nor to real estate within cities and towns. Aliens who shall have declared their intention
to become citizens, conformably to the laws of the United States on the subject of natural-
ization, thirty days prior to an election, are electors subject to the same conditions as
citizens. (Laws 1889.)

Appeals. Either party may appeal from the judgment or decree or final order made
by any district court, in any civil action, to the supreme court. The transcript and bill
of exceptions, if any, must be filed within six months from date of judgment, decree, or
order appealed from or overruling of motion for a new trial. The appeal does not operate
as a supersedeas, unless within twenty days from date of judgment, decree, or order the
appellant file bond with security duly approved.

Actions in county and justices' courts may be appealed to district court by filing the
statutory bonds within ten days from rendition of judgment, and such appeals operate as
stay of execution on judgment in court below.

Error and Appeal. A judgment rendered, or final order made by a county court, jus-
tice of the peace, or any other tribunal, board, or officer exercising judicial functions, and
inferior to the district court, may be reversed, vacated, or modified by the district court.
A judgment rendered or final order made by the district court may be reversed, vacated,
or modified by the supreme court for errors appearing on the record.

Arrest. Arrest and imprisonment, in civil actions, for debt are abolished.
Assignments. See Insolvent Laws.

Attachment against Property. The plaintiff in an action for the recovery of
money may, by attachment, secure a lien on any property of a defendant subject to execu
tion, when he is a foreign corporation or non-resident; when he has or is about to remove
his property from the jurisdiction of the court, assign, remove, or dispose of or convert to
money, or conceals his property to defraud his creditors; when he absconds to defraud cred-
itors, or leaves county of residence to avoid service of summons, or fraudulently contracted
or incurred the subject of the action. When the ground of attachment is that defendant is
a foreign corporation or non-resident, the claim must be debt or demand arising on con-
tract, judgment, or decree. A bond in double the amount claimed is required, except when
the said defendant is a foreign corporation or non-resident. Where the ground of the at-
tachment is that the defendant is a non-resident no undertaking is required. As to plain-
tiffs, there is no distinction between residents and non-residents. The distinction as to the
made only as to defendants. The
necessity of bond on account of place of residence
affidavit may be made by plaintiff, his agent or attorney, showing nature of plaintiff's
claim, that it is just, the amount which affiant believes the plaintiff ought to recover, and
the existence of some one of the grounds for attachment above mentioned. Statute does
not say what kind of property surety shall have. There must be one or more sureties.

The mere fact of removal of property out of the jurisdiction of the court, unless it be
done with the intent to defraud creditors, does not give the right of attachment. Nor the
mere inability of the debtor to pay his debts, though it may be a material circumstance to
prove that he is converting or concealing his property.

A creditor may bring an action on a claim before it is due, and have an attachment
against the property of the debtor; when the debtor has sold, conveyed, or otherwise dis-
posed of his property, or is about to make such sale, conveyance, or disposition of his prop-
erty, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them
in the collection of their debts, or when he is about to remove his property or a material
part thereof with the intent or to the effect of cheating or defrauding his creditors or of
hindering and delaying them in the collection of their debts.

When there are several attachments against the same defendant, they shall be executed
in the order in which they are received by the sheriff. Subsequent attachments are sub-
ject to prior ones. Attachment binds property from time of service. Statute does not
undertake to marshal extent of the responsibility on bonds of prior and subsequent attach-

ments.

Chattel Mortgages - Are valid against bona fide purchasers and creditors, if the instrument or a true copy thereof shall be filed in the office of the county clerk of the county where the mortgagor resides, or, in case he is a non-resident, in the county where the property is situated. The mortgage need not be acknowledged unless it is made upon household goods, when it must be signed and acknowledged by both husband and wife, and duly witnessed. The mortgage ceases to be valid against creditors, purchasers, or mortgagees in good faith after the expiration of five years after the filing thereof. A bill of sale in the nature of a chattel mortgage is good as to the parties to it without being filed as the statute directs. Every chattel mortgage containing power of sale to mortgagee may be foreclosed by sale without proceedings in court. Sale or mortgage of chattels, unless followed by an actual and continued change of possession, is prima facie fraudulent and void as against creditors and subsequent bona fide purchasers. As between the parties a chattel mortgage need not be in writing. A mortgage of goods and chattels with possession and power of sale in the mortgagor is void against the other creditors and subsequent purchasers of such mortgagor. There is no time specified by statute within which chattel mortgages must be

foreclosed. It is made a felony for a mortgagor of chattels during the existence of the mortgage lien to sell the property without the consent of the mortgagee, with penalty of imprisonment in the penitentiary not exceeding ten years, and fine not exceeding one hundred dollars. It is also a felony for a mortgagor to remove the property from the county where situated when mortgaged, with penalty of imprisonment not exceeding ten years and fine not exceeding one thousand dollars.

Chattel mortgages, when satisfied, may be discharged by an entry by the mortgagee, his agent or assignee, on the margin of the index, which shall be attested by the clerk; or by the clerk on the presentation or receipt of an order in writing signed by the mortgagee and attested by a justice of the peace or some officer with a seal. If a mortgagee, his assignee or representative, shall neglect, for the space of ten days, after being requested, to discharge the same as aforesaid, he is liable in the sum of fifty dollars, in addition to actual damages. Claims against Estates-Are established by the same rules of evidence governing civil actions. They shall be barred unless presented within such time as the probate judge shall fix, not less than six nor more than eighteen months from the granting of letters testamentary or of administration. Such time may, for cause, within six months after its expiration, upon application of a creditor, be extended for a period not more than three months thereafter. On the application of interested parties two or more suitable persons may be appointed commissioners for the purpose of receiving, examining, and adjusting claims, except in estates where the total value of the property exclusive of personal property allowed the widow shall not exceed one hundred and fifty dollars. The commissioners shall name convenient times and places when and where they will meet to examine and allow claims; and must within sixty days from their appointment give notice of the times and places of their meeting, and of the time limited for creditors to present their claims, by posting notices thereof in four public places in the county and by publishing the same at least four weeks successively in some newspaper printed in the State, or in any other manner which the court may direct. In the majority of estates no commissioners are demanded, and the probate judge gives the notices required. When commissioners have been ap pointed for examining and allowing claims, no suit can be commenced against the executor or administrator, except actions for the recovery of real estate and to recover the possession of personal property, nor can attachment or execution issue against the estate until the expiration of the time fixed by the court for the payment of debts. Time of payment may be extended on application of administrator or executor from time to time, not exceeding six months at a time, nor so that the whole time allowed shall exceed three years. At end of three years estates shall be settled at once. Claims are classed and paid: 1st. Funeral expenses. 2d. Expenses of last sickness. 3d. Debts having preference by laws of United States. 4th. Other creditors. Specific liens are satisfied out of the property in their order of priority.

When a will is duly proved and allowed, the probate court issues letters testamentary thereon to the person named executor therein, if he is legally competent and accepts the trust and gives bond. If a person named executor in a will refuses to accept the trust, and neglects for twenty days to give bond, the probate court may grant letters testamentary to the other executors, if there be any who are capable and willing to accept the trust, and if there be no such other executor who will give bond, the court may commit administration of estate with will annexed to such person as would have been entitled to the same if the testator had died intestate. Every executor before he can enter upon the execution of his trust, and before letters testamentary can be issued, must give bond to the probate judge in such reasonable sum as he may direct with one or more sufficient sureties conditioned as follows: to make and return to the court within three months a true and perfect inventory of all the goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him; to administer according to law and to the will of the testator all his goods, chattels, rights, credits, and estate which shall at any time come to his possession, or to the possession of any other person for him, and out of the same to pay and discharge all debts, legacies, and charges chargeable on the same, and such dividends thereon as shall be ordered and decreed by the court; to render a true and just account of his administration to the probate court within one year, and at such other time when required by such court; and to perform all orders and decrees of the probate court by the executor to be performed in the premises.

Administration of the estate of a person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled to the same in the following order: 1. The widow or next of kin, or both, as the judge of probate may think proper, or such person as the widow or next of kin may request to have appointed, if suitable and competent to discharge the trust. 2. If the widow or next of kin or the persons elected by them shall be unsuitable or incompetent, or if the widow or next of kin shall neglect for thirty days after the death of the intestate to apply for administration or to request that administration be granted to some other person, the same may be granted to one or more of the principal creditors if any such are competent and willing to take it. 3. If there be no such creditor competent and willing to take such administration, the same may be committed to such other person or persons as the judge of probate may think proper.

Every administrator before he enters upon the execution of his trust, and before letters of administration are granted, must give a bond to the judge of probate, with such surety or

sureties as he shall direct and approve, with the same conditions as required in case of an executor, with such variations only as may be necessary to make it applicable to the case of an administrator.

When there is a delay in granting letters testamentary or administration occasioned by any cause, the probate judge may appoint an administrator to act in collecting and taking charge of the estate of the deceased, until the question of the allowance of the will, or such other question as shall occasion the delay, shall be terminated. It is the duty of such special administrator to collect the goods, chattels, and debts of the deceased and preserve the same for the executor or administrator afterwards appointed.

The executor or administrator of any person dying out of this State appointed in any other State, Territory, or foreign country, and no executor or administrator having been appointed in this State, may be licensed to sell lands of the deceased situate in this State. If it shall appear to the licensing court in this State that the foreign executor or administrator is duly bonded by sufficient sureties in the State or country of his appointment, and a copy of the bond duly authenticated be filed in such court, no further bond for the purpose is required. Such executor or administrator may sue in that capacity in this State as other non-residents may sue.

Claims, Proof of. See Proof of Claims.

Conditional Sales. There is no statute having for its distinct subject conditional sales, but there is a section of the statute of frauds as follows: "That no sale, contract, or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any purchaser or judgment creditor of the vendee or lessee in actual possession, obtained in pursuance of such sale, contract, or lease, without notice, unless the same be in writing, signed by the vendee or lessee, and a copy thereof filed in the office of the clerk of the county within which such vendee or lessee resides; said copy shall have attached thereto an affidavit of such vendor or lessor, or his agent or attorney, which shall set forth the names of the vendor and vendee or lessor or lessee, or description of the property transferred, and the full and true interest of the vendor or lessor therein. All such sales and transfers shall cease to be valid against purchasers in good faith, or judgment or attaching creditors without notice, at the expiration of five years, unless such vendor or lessor shall, within thirty days prior to the expiration of the five years from the date of such sale or transfer, file a copy thereof, verified as aforesaid, in the office of said clerk, and the said vendor or lessor may preserve the validity of his said sale or transfer of personal property by an annual refiling in the manner as aforesaid of such

copy."

In McCormick v. Stevenson, 13 Neb. 70, it was held: "A contract, that the title to personal property shall not pass to the vendee until the purchase-money is paid, is valid between the parties, even though the contract or a copy thereof is not filed in the clerk's office, and a party purchasing with notice that the debtor is not the owner of the property is not protected." See Chattel Mortgages.

The legislature of 1905 enacted a law providing that in the event of payment by vendee of one third of purchase price, and subsequent default, and taking of possession by vendor, the latter shall redeliver the property to vendee within twenty days from taking possession upon payment of balance of purchase price and such costs as have been made; and in event of refusal of vendor to redeliver, the vendee may recover the amount paid and costs. Consignments. Every consignee, factor, or agent who shall sell any merchandise or other property intrusted or consigned to him with intent to defraud the true owner, and every person who shall knowingly connive with, aid, or assist him in such fraudulent sale, or shall deposit any merchandise intrusted or consigned to him, or any document so possessed or intrusted, as security for any money borrowed, or shall in any way dispose of the same to his own use, contrary to good faith and with such fraudulent intent, shall be imprisoned in the penitentiary not exceeding three years nor less than one year.

If any warehouseman or forwarding agent, or any person having in his or their possession, custody, or control any goods, wares, merchandise, live stock, or other property by virtue of having issued therefor a receipt, schedule, invoice, or other written instrument, shall without authority, and with intent to injure or defraud the rightful owner thereof, sell, assign, transfer, or incumber such goods, wares, or merchandise to the value of fifty dollars or upwards, or in any way convert the same to his own use, or, if received for consignment, he shall change the consignment thereof or sell or incumber the same during the transit, or shall in any way convert the same, or any part thereof, to his own use, to the value of fifty dollars or upwards, he shall be imprisoned in the penitentiary for a term of not less than one nor more than four years.

If any bailee of any goods or chattels shall convert the same to his own use with an intent to steal the same, he is guilty of larceny and is punished accordingly.

Corporations. The legislature shall pass no special act conferring corporate powers. Corporations may be formed under general law. (Const. title "Miscellaneous Corporations.") There are general statutes for that purpose. Every corporation, previous to the commencement of any business, except its own organization, when the same is not formed by legislative enactment, must adopt articles, and have them filed and recorded in the secretary of state's office; and domestic corporations must also file with the county clerk of the county where their headquarters are located, except mutual insurance companies, building and loan companies, loan and investment companies, and banking institutions,

which shall file with the state auditor and state banking board. Any number of persons may organize an ordinary corporation; but at least five must organize a railroad corporation. Mutual insurance companies, building and loan, and loan and investment companies, required by law to file articles with the state auditor, shall file a certificate with the secretary of state, stating the date of filing with the auditor, name and place of business, and names of stockholders. Domestic banking organizations, that have been approved by state banking board and that have filed articles with said board, shall file a certificate in the secretary of state's office, stating the date of filing articles with said board, name and place of business, and names of stockholders. Above provisions do not apply to mutual fraternal benefit societies. Corporate powers cease if corporation is not organized within one year after incorporation. Within four months from filing articles, notice must be published in a newspaper near principal place of business for four weeks, stating, 1, name; 2, principal place of business; 3, general nature of business; 4, amount of capital stock authorized, and time and conditions of payment; 5, time of commencement and termination; 6, highest amount of indebtedness or liability to which corporation is at any time to subject itself; 7, by what officers affairs are to be conducted. Corporations shall give notice by publication annually of the amount of their existing debts; and if any corporation shall fail to do so, after the assets of the corporation are first exhausted, all the stockholders of the corporation shall be jointly and severally liable for all the debts of the corporation existing and contracted during the time the officers are in default in giving such notice, to the extent of unpaid subscription to stock, and, in addition, to the amount of stock owned by each. If corporations fail to comply substantially with the statute, as to notice of indebtedness after the assets of corporations are first exhausted, the property of stockholders shall be liable for the debts, to the extent of unpaid subscription to stock, and in addition thereto to the amount of stock owned by each. Stockholders in railroad companies are individually liable to creditors for amount unpaid on stock. Corporations shall not become indebted to exceed two thirds of their capital stock. This limitation does not apply to debts for risks of insurance companies, deposits in banks, and the notes, bonds, or debentures of any loan or trust company secured by mortgage on real estate of twice the par value thereof; nor to any loan or trust company's guaranty upon the transfer of such notes, etc. Actions do not abate on account of dissolution of corporation. Also see Service. "Any corporation organized under the laws of any other State or Territory which has filed or may hereafter file with the secretary of this State a true copy of its charter or articles of association shall, on filing with the secretary of state a certified copy of a resolution adopted by its board of directors accepting the provisions of this act, be and become a body corporate of this State." No requirement that any particular amount of capital must be paid in at time of organization; nor as to number of directors, resident or otherwise. In addition to recording fee of ten cents per one hundred words, a charge on filing of ten dollars, and if authorized capital stock exceeds one hundred thousand dollars, a further charge of ten cents for each excess of one thousand dollars is made. Property of corporation, domestic or foreign, taxed on ad valorem basis, as if owned by individual. No tax on capital stock of foreign corporation, and no tax or license fee required for doing business in State. See Tax Laws. With reference to foreign corporation holding lands, see Aliens. Courts, Jurisdiction and Terms of. See Court Calendar for Nebraska. Deeds. All deeds affecting the title to real property, excepting leases for one year or less, must be signed by the grantor, attested by one or more competent witnesses, acknowledged or proved, and duly recorded. Acknowledgments or proofs may be taken in the State by judges, clerks of courts, justices of the peace, and notaries public. The certificate of acknowledgment must be indorsed on the instrument, and show that the grantor acknowledged the same to be his voluntary act and deed, and that the officer taking the acknowledgment knew him to be the same person whose name was signed thereto, or had satisfactory evidence of that fact. If the acknowledgment be taken before a notary public or other officer having a seal, his seal of office must be affixed, and no further authentication is necessary. A notary public must state in his seal, or under his official signature, on all certificates of authentication, the date of expiration of his term of office. The county clerk of county for which a notary public is qualified is the proper officer to certify as to official character. If the grantor die before acknowledgment, or if for any cause his attendance cannot be procured to make the acknowledgment, or if he refuses to make it, proof of execution and delivery may be made by any competent subscribing witness thereto, before any officer authorized to take the acknowledgment; or, if all the subscribing witnessess are out of the State, proof may be made by proving the handwriting of the grantor and of any subscribing witness. The deed, with the certificates of acknowledgment or proof, must be recorded in the county where the lands lie. Acknowledgments or proofs taken out of the State and in the United States must be taken in conformity to the law of the State or Territory in which taken, or in accordance with the laws of this State, and be made before an officer authorized by the laws of such State or Territory, or by a commissioner of this State for that purpose. All such acknowledgments or proofs last mentioned, taken by an officer having no seal of office, must be accompanied with a certificate of a clerk of a court of record, or other proper officer of the district, under official seal, that the officer taking the same was the same as represented therein at the date thereof, that the signature is genuine, and the acknowledgment is in conformity with law. There shall be affixed to the certificate of acknowledgment made by a commissioner as aforesaid an