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 justrce. 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. One of the primary objects of the code was to prevent the rights of a suitor or the merits of his cause from being sacrificed to technical rules 2 Neb. 137. SEC. 2 The abrogation of the forms of pleading and the adoption of a uniform system of remedies, does not abolish the distinction between law and equity n the determination of causes. 3 Neb. 115. 4 Neb. 587. SEC. 4. In an equity case, when questions of fact are necessary to be determined, whether put in issue by the pleadings or not the same may be tried by a jury. 10 Neb. 189. SEC. 5. When it appears from the face of the petition that the action is barred, the defendant may demur to the petition on the ground that the facts stated therein do not constitute a cause of action. 5 Neb. 464. 9 Neb 232. But in an action for breach of covenants of warranty, if the petition does not show when cause of action accrued. by reason of ouster and dispossession of the premises, the statute cannot be interposed by general demurrer. 3 Neb 87. The general operation of the statute explained. 5 Neb. 370. SEC 6. The original section read " twenty-one years." As against the right to redeem a conveyance absoInte, but in fact a mortgage the statute does not begin to run until a tender of the money secured by the mortgage, and refusal to reconvey. 1 Neb. 344. The change in the statutory period from twenty-one to ten years nade by the amerdment of 1869. applies to actions brought since the taking effect of the amendment. 4 Neb. 46. The statute commences to run at once, if an incumbrance existed at the time of a conveyance with covenants against incumbrances. 7 Neb. 404. Where the debt is barred by the statute, no action can be maintained ou the mortgage. 2 Neb 26. 5 Neb. 466. 6 Neb. 391. 9 Neb. 232. But under the amendment of this section, an action to foreclose a mortgage can be brought in ten years, although the note has been barred. 8 Neb. 268. 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 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 s 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. 10. County warrants are not within the operation of the statute. 1 Neb. 382. The holder of s note, barred by the statute, lodged with the maker and on the following morning produced the note and demanded payment. Not receiving it the holder said he would credit the charge for lodging, amounting to on the note, to which the maker did not assent. Held not a payment to take the case out of the statute. Neb. 22. A note secured by a mortgage is not a "specia ty" 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, 270, A judgment of a state court properly authenticated is con clusive upon the merits of the suit, but the statute of limitation my bo plead in an action brought in another state upon such judgment. 6 Neb. 428. SEC. 11. Cause of action arose in Iowa, where defendant resided, but he carried on business and was personally present in Nebraska nearly every day for about three years, when he moved with his family and continued to reside there. Suit commenced on contract not in writing after four years. Held, that statute commenced to run at the time of defendant's removal to Nebraska. 9 Neb. 501. SEC. 12. Cited 4 Neb. 95. SEC. 17. Whether a married woman is considered under legal disability, Quære. See chapter entitled "MARRIED WOMEN," page 313, and also amendment made to section 7 of this code. An action to subject mortgaged property to the payment of the mortgage debt is a proceeding in rem, and the last clause of this section applies to such action. 5 Neb. 89, 465. 6 Neb. 391. 9 Neb. 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. This section and sections 62 and 63 construed with reference to each other, and sec. 113, indicate that the jurisdiction of the court attaches to the defendant when he is legally served with summons, without regard to the defects of the petition. 2 Neb. 136. SEC. 20. The mere temporary absence of a debtor from the state. when he has a usual place of residence therein where service of summons can be had upon him, does not suspend the statute. The words "usual place of residence" mean the place of abode at the time of service. 4 Neb. 29, 30. 5 Neb. 88. See note to sec. 11. SEC. 23. These special provisions are construed strictly and must be closely pursued. 7 Neb. 245. SEC. 24. Suit brought in the name of "H. G., A. T., and M. G., partners under firm name of and style of G. T. & Co." held not necessary that petition should state that partnership was "formed for the purpose of carrying on trade or business, or for the purpose of holding any species of property in this state. 9 Neb. 216. SEC. 27. Same-Individual property, how subjected.]-If the plaintiff, in any judgment so rendered against any company or partnership, shall seek to charge the individual property of the persons composing such company or firm, it shall be lawful for him to file a bill in chancery against the several members thereof, setting forth his judgment and the insufficiency of the partnership propty to satisfy the same, and to have a decree for the debt, and an award of execution against all such persons, or any of them, as may appear to have been members of such company, association or firm. SEC. 28. [Repealed. Gen. Stat. 713.] TITLE III.-PARTIES TO CIVIL ACTIONS. SEC. 29. [Action prosecuted in name of real party in interest.]— Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section thirty-two. SEC. 30. Action by assignee.]-The assignee of a thing in action may maintain an action thereon, in his own name and behalf, without the name of the assignor. SEC. 31. [Assignment Effect on equities.]-In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense now allowed; but this section shall not apply to negotiable bonds, promissory notes, or bills of exchange, transferred in good faith, and upon good consideration, before due. SEC. 32. [Beneficiaries -- Officers-- Official bonds -- Authorized persons. 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 a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way. SECS. 33-34. [Repealed. Gen. Stat. 713.] SEC. 35. [Husband and wife joined.]-If a husband and wife be sued together, the wife may defend for her own right; and, if the husband neglect to defend, she may defend for his right also. SEC. 36. [Infant-Action for,--The action of an infant must be brought by his guardian or next friend. When the action is brought by his next friend, the court has power to dismiss it, if it is not for the benefit of the infant; or, to substitute the guardian of the infant, or any person, as the next friend. SEC. 37. [Same-Liability for costs.]-The guardian, or the next friend, is liable for the costs of the action brought by him, and, when he is insolvent, the court may require security for them. Either may be a witness in an action brought by him. SEC. 38. [Infant-Action against.]--The defense of an infant must be SEC. 27. Action in foreign state and judgment against partnership there. Suit here on such judgment against two of the partners to charge them personally. Held, That to maintain such action it was necessary to allege in the petition, and, it denied, prove that the partnership property was insufficient to satisfy the judg. ments. 10 Neb. 262. SEC. 29. A private person cannot maintain an action to abate a public nuisance, unless he can aver and prove some special injury to himself. 1 Neb. 337. The interest of one not a nominal party to a written instrument must affirmatively appear in the petition to enable him to maintain a suit thereon. 8 Neb. 468. Cited also 9 Neb. 25, 433. SEC. 30. The assignee of a mechanics lien can maintain the action. 4 Neb 58. The assignee of a chose in action is the proper and only party who can maintain suit thereon. 1 Neb. 327. SEC. 31. This section simply gives the right of set off in an action by the assignee, and limits it to such as is "now allowed." 3 Neb. 166. See note to sec. 104. An innocent purchaser before due and without notice takes a note free from defense of usury. 9 Neb. 226. 10 Neb. 86. A set-off to a promissory note which would have been good between original parties may be pleaded against an indorsee who acquires it after maturity. 7 Neb. 82. SEC. 32. Cited 5 Neb. 93. This section authorizes suit on an official bond by the public, while sec. 643 gives a right of action to an individual. 9 Neb. 434. SECS. 33, 34. See sec 3, chap. 53, ante p. 343. SEC. 37. The infant is not liable for costs, even in an action brought without a guardian or next friend but not terminated during infancy, if, on reaching his majority, he disclaims all benefit from the suit, and refuses to proceed further. 8 Neb. 341. by a guardian for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge. The appointment cannot be made until after service of the summons in the action, as directed by this code. SEC. 39. [Same-Guardian ad iitem.-The appointment may be made upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the return of the summons. If he be under the age of fourteen, or neglect so to apply, the appointment may be made upon the application of any friend of the infant, or on that of the plaintiff in the action. SEC. 40. [Plaintiff—Joinder.]--All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title. SEC. 41. [Defendants, who made.]--Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. SEC. 42. [Parties united in interest joined.]-Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition. SEC. 43. [Same-Common interest-Numerous parties.]-When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. SEC. 44. [Parties severally liable.]--Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff. SEC. 45. [Action not to abate by disability.]--An action does not abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, during its pendency, if the cause of action survive or continue. In the case of the marriage of a female party, the fact being suggested on the record, the husband may be made a party with his wife; and, in the case of the death or other disability of a party, the court may allow the action to continue by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made, to be substituted in the action. SEC. 46. [Parties necessary to determine controversy.]--The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in. SEC. 47. [Same-Parties having interest in property.]-When, in an action for the recovery of real or personal property, any person having an interest in the property applies to be made a party, the court may order it to be done. SEC. 48. [Preservation of property-Interpleader.]-Upon the affidavit of a defendant before answer in an action upon contract, or for the recovery of personal property, that some third party, without collusion with him, has or SEC. 40. In an action brought upon a judgment against a principal debtor, in behalf of a surety who has, paid the same, the original plaintiffs are not proper parties. 1 Neb 339. An attorney claiming a lien on money in hands of defendant may, under certain circumstances, be admitted as a party plaintiff for the purpose of protecting and enforcing such lien. 10 Neb. 579. SEC. 42. A married woman and her minor children, constituting one family, may join in an action for loss A joint action cannot be maintained against the guarantor and maker of a note. 9 Neb. 447. |