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United States
Nebraska Codes Chapter 25 COURTS; CIVIL PROCEDURE

  1. Chapter 25 COURTS; CIVIL PROCEDURE
    1. 25-101 Civil action.
    2. 25-102 Parties; how designated.
    3. 25-103 Feigned issues prohibited; issue not plead; tried, when.
    4. 25-201 Civil actions; when commenced.
    5. 25-201.01 Civil actions; savings clause; conditions.
    6. 25-201.02 Amendment of pleading; effect.
    7. 25-202 Actions for the recovery of title or possession of real estate or foreclosure of mortgages or deeds of trust as mortgages.
    8. 25-203 Actions for forcible entry and detainer of real property.
    9. 25-204 Actions other than for the recovery of real property.
    10. 25-205 Actions on written contracts, on foreign judgments, or to recover collateral.
    11. 25-206 Actions on oral contracts or statutory liabilities.
    12. 25-207 Actions for trespass, conversion, other torts, and frauds; exceptions.
    13. 25-208 Actions for libel, slander, malpractice, and recovery of tax.
    14. 25-209 Actions on official or judicial bonds.
    15. 25-210 Actions against sureties on guardian's bond.
    16. 25-211 Actions on contracts by reason of failure or want of consideration.
    17. 25-212 Actions not specified.
    18. 25-213 Tolling of statutes of limitation; when.
    19. 25-214 Actions against absconding or absent debtor.
    20. 25-215 Repealed. Laws 2006, LB 1115, § 47.
    21. 25-216 Part payment; acknowledgment of debt; effect upon accrual.
    22. 25-217 Action; commencement; defendant not served; effect.
    23. 25-218 Claims by and against the state; when barred.
    24. 25-219 Actions upon liability created by federal statute.
    25. 25-220 Repealed. Laws 1959, c. 264, § 1.
    26. 25-221 Statute of limitations; trial procedure.
    27. 25-222 Actions on professional negligence.
    28. 25-223 Action on breach of warranty on improvements to real property.
    29. 25-224 Actions on product liability.
    30. 25-225 Repealed. Laws 1986, LB 529, § 58.
    31. 25-226 Cause of action against a common carrier; limitation.
    32. 25-227 Action to enforce obligation to pay certificate of deposit; when.
    33. 25-301 Real party in interest.
    34. 25-302 Assignee of a thing in action.
    35. 25-303 Assignee; defenses and counterclaims available.
    36. 25-304 Parties to actions.
    37. 25-305 Married woman.
    38. 25-306 Wife's right to defend.
    39. 25-307 Suit by infant, guardian, or next friend; exception; substitution by court.
    40. 25-308 Action by guardian, conservator, or next friend; liability for costs; security; witness.
    41. 25-309 Suit against infant; guardian for suit; when appointed; exception.
    42. 25-310 Suit against infant; guardian; how appointed.
    43. 25-311 Joinder of plaintiffs.
    44. 25-312 Defendants; how designated; misnomer; when immaterial.
    45. 25-312.01 Dissolved corporation; suit authorized.
    46. 25-313 Company, partnership, or unincorporated association; designation.
    47. 25-314 Transferred to section 25-530.08.
    48. 25-314.01 Repealed. Laws 1983, LB 447, § 104.
    49. 25-315 Partnership or unincorporated association; security for costs.
    50. 25-316 Company, partnership, or unincorporated association; member's individual property; how subjected to satisfaction of judgment.
    51. 25-317 Repealed. Laws 1998, LB 234, § 12.
    52. 25-318 Necessary joinder; involuntary joinder; procedure.
    53. 25-319 Class actions; representation.
    54. 25-320 Permissive joinder of defendants.
    55. 25-321 Unknown defendants; how designated.
    56. 25-322 Substitution of parties; death; disability; transfer of interest.
    57. 25-323 Necessary parties; brought into suit; procedure.
    58. 25-324 Actions for recovery of real or personal property; interest in property; intervention.
    59. 25-325 Interpleader by order of court upon affidavit of defendant.
    60. 25-326 Interpleader; when sheriff or other officer defendant.
    61. 25-327 Substitution; plaintiff in execution for sheriff or other officer.
    62. 25-328 Intervention; right; procedure.
    63. 25-329 Intervention; judgment; costs.
    64. 25-330 Intervention; complaint; other pleadings.
    65. 25-331 Third-party action; procedure.
    66. 25-401 Local actions involving real estate.
    67. 25-402 Local actions involving real estate located in more than one county.
    68. 25-403 Action for specific performance of land contract.
    69. 25-403.01 Actions; venue; transfer; payment of expenses.
    70. 25-403.02 Venue; residency; determination.
    71. 25-404 Repealed. Laws 1986, LB 529, § 58.
    72. 25-405 Repealed. Laws 1986, LB 529, § 58.
    73. 25-406 Repealed. Laws 1986, LB 529, § 58.
    74. 25-407 Repealed. Laws 1986, LB 529, § 58.
    75. 25-408 Repealed. Laws 1986, LB 529, § 58.
    76. 25-409 Repealed. Laws 1986, LB 529, § 58.
    77. 25-410 Transfer of actions; clerk of transferor court; duties; clerk of transferee court; duties; certain support orders; how treated.
    78. 25-411 Change of venue; procedure; effect; expenses.
    79. 25-412 Change of venue in local actions involving real estate; transfer and entry of judgment.
    80. 25-412.01 Criminal cases; counties of 4,000 inhabitants or less; inadequate facilities; change of venue.
    81. 25-412.02 Civil cases; counties of 4,000 inhabitants or less; inadequate facilities; change of venue.
    82. 25-412.03 County board; agreements for criminal and civil trials.
    83. 25-412.04 Criminal and civil trials; agreements for change of venue; jury; selection.
    84. 25-413 State, defined.
    85. 25-414 Choice of forum; jurisdiction; conditions.
    86. 25-415 Choice of forum in another state; action pending in this state; procedure.
    87. 25-416 Sections, how construed.
    88. 25-417 Act, how cited.
    89. 25-501 Actions; how commenced.
    90. 25-502 Repealed. Laws 1983, LB 447, § 104.
    91. 25-502.01 Praecipe for summons.
    92. 25-503 Repealed. Laws 1983, LB 447, § 104.
    93. 25-503.01 Summons.
    94. 25-504 Repealed. Laws 1983, LB 447, § 104.
    95. 25-504.01 Summons and complaint; service.
    96. 25-505 Repealed. Laws 1983, LB 447, § 104.
    97. 25-505.01 Service of summons; methods.
    98. 25-506 Repealed. Laws 1983, LB 447, § 104.
    99. 25-506.01 Process; by whom served.
    100. 25-507 Process server; requirements; bond; cost.
    101. 25-507.01 Summons; proof of service; return date.
    102. 25-508 Repealed. Laws 1983, LB 447, § 104.
    103. 25-508.01 Service on individual.
    104. 25-509 Repealed. Laws 1983, LB 447, § 104.
    105. 25-509.01 Service on corporation.
    106. 25-510 Repealed. Laws 1983, LB 447, § 104.
    107. 25-510.01 Repealed. Laws 1983, LB 447, § 104.
    108. 25-510.02 Service on state or political subdivision.
    109. 25-511 Repealed. Laws 1983, LB 447, § 104.
    110. 25-511.01 Repealed. Laws 1983, LB 447, § 104.
    111. 25-511.02 Service on dissolved corporation.
    112. 25-512 Repealed. Laws 1983, LB 447, § 104.
    113. 25-512.01 Service on partnership.
    114. 25-513 Repealed. Laws 1983, LB 447, § 104.
    115. 25-513.01 Service on unincorporated association.
    116. 25-514 Repealed. Laws 1983, LB 447, § 104.
    117. 25-514.01 Service on agent.
    118. 25-515 Repealed. Laws 1983, LB 447, § 104.
    119. 25-516 Repealed. Laws 1983, LB 447, § 104.
    120. 25-516.01 Service; voluntary appearance; defenses.
    121. 25-517 Repealed. Laws 1983, LB 447, § 104.
    122. 25-517.01 Repealed. Laws 1983, LB 447, § 104.
    123. 25-517.02 Substitute and constructive service.
    124. 25-518 Repealed. Laws 1983, LB 447, § 104.
    125. 25-518.01 Service by publication.
    126. 25-519 Service by publication; how made; contents.
    127. 25-520 Service by publication; when complete; how proved; affidavit of publication.
    128. 25-520.01 Service by publication; mailing of published notice; requirements; waiver; when mailing not required.
    129. 25-520.02 Action or proceeding, defined.
    130. 25-520.03 Sections, how construed.
    131. 25-520.04 Repealed. Laws 1986, LB 735, § 1.
    132. 25-521 Repealed. Laws 1983, LB 447, § 104.
    133. 25-522 Service by publication; designation of newspaper.
    134. 25-523 Legal newspaper, defined; prior publications legalized.
    135. 25-524 Repealed. Laws 1983, LB 447, § 104.
    136. 25-525 Judgment on constructive service; how opened; procedure.
    137. 25-526 Repealed. Laws 1983, LB 447, § 104.
    138. 25-527 Procedure when defendants not all served.
    139. 25-528 Personal service upon appointed resident agent; appointment invalidates constructive service, when.
    140. 25-529 Personal service upon appointed resident agent; appointment; recording and indexing; fees.
    141. 25-530 Repealed. Laws 1983, LB 447, § 104.
    142. 25-530.01 Repealed. Laws 1983, LB 447, § 104.
    143. 25-530.02 Repealed. Laws 1983, LB 447, § 104.
    144. 25-530.03 Repealed. Laws 1983, LB 447, § 104.
    145. 25-530.04 Repealed. Laws 1983, LB 447, § 104.
    146. 25-530.05 Repealed. Laws 1983, LB 447, § 104.
    147. 25-530.06 Repealed. Laws 1983, LB 447, § 104.
    148. 25-530.07 Repealed. Laws 1983, LB 447, § 104.
    149. 25-530.08 Company, firm, or unincorporated association; appointment of agent; execution on judgment; fees.
    150. 25-531 Lis pendens; notice; where filed; contents; recording; cancellation; filing fee.
    151. 25-532 Notice of judgment when property situated in more than one county.
    152. 25-533 Attachment and execution issued from another county; notice upon entry in encumbrance book.
    153. 25-534 Order, motion, or notice; service; delivery.
    154. 25-535 Person, defined.
    155. 25-536 Jurisdiction over a person.
    156. 25-537 Service outside state.
    157. 25-538 Action in another forum; stay or dismissal of action.
    158. 25-539 Jurisdiction authorized.
    159. 25-540 Service outside state; manner.
    160. 25-541 Sections, how construed.
    161. 25-542 Service of process; applicability.
    162. 25-543 Repealed. Laws 1999, LB 43, § 30.
    163. 25-601 Dismissal without prejudice.
    164. 25-602 Dismissal without prejudice; by plaintiff in vacation; exceptions; payment of costs.
    165. 25-603 Dismissal without prejudice; trial on setoff or counterclaim.
    166. 25-701 Joinder of claims.
    167. 25-702 Repealed. Laws 1998, LB 234, § 12.
    168. 25-703 Consolidation of actions; motion and notice.
    169. 25-704 Consolidation of actions; order.
    170. 25-705 Joinder; procedures; misjoinder.
    171. 25-801 Repealed. Laws 2002, LB 876, § 92.
    172. 25-801.01 Rules of pleading; Supreme Court; promulgate.
    173. 25-802 Repealed. Laws 2002, LB 876, § 92.
    174. 25-803 Repealed. Laws 2002, LB 876, § 92.
    175. 25-804 Repealed. Laws 2002, LB 876, § 92.
    176. 25-805 Repealed. Laws 2002, LB 876, § 92.
    177. 25-806 Repealed. Laws 2002, LB 876, § 92.
    178. 25-807 Repealed. Laws 2002, LB 876, § 92.
    179. 25-808 Repealed. Laws 2002, LB 876, § 92.
    180. 25-809 Repealed. Laws 2002, LB 876, § 92.
    181. 25-810 Repealed. Laws 2002, LB 876, § 92.
    182. 25-811 Repealed. Laws 2002, LB 876, § 92.
    183. 25-812 Repealed. Laws 2002, LB 876, § 92.
    184. 25-813 Repealed. Laws 2002, LB 876, § 92.
    185. 25-814 Repealed. Laws 2002, LB 876, § 92.
    186. 25-815 Repealed. Laws 2002, LB 876, § 92.
    187. 25-816 Repealed. Laws 2002, LB 876, § 92.
    188. 25-817 Repealed. Laws 2002, LB 876, § 92.
    189. 25-818 Repealed. Laws 2002, LB 876, § 92.
    190. 25-819 Repealed. Laws 2002, LB 876, § 92.
    191. 25-820 Repealed. Laws 2002, LB 876, § 92.
    192. 25-821 Repealed. Laws 2002, LB 876, § 92.
    193. 25-822 Repealed. Laws 2002, LB 876, § 92.
    194. 25-823 Repealed. Laws 2002, LB 876, § 92.
    195. 25-824 Pleadings; use in other actions; frivolous pleading; effect; effect of signature; frivolous actions; award of attorney's fees and costs.
    196. 25-824.01 Frivolous actions; attorney's fees; costs; determination of amount.
    197. 25-824.02 Frivolous actions; actual attorney's fee; effect of award; stipulations authorized.
    198. 25-824.03 Frivolous actions; applicability of sections.
    199. 25-825 Repealed. Laws 1969, c. 182, § 2.
    200. 25-826 Repealed. Laws 1969, c. 182, § 2.
    201. 25-827 Repealed. Laws 1969, c. 182, § 2.
    202. 25-828 Repealed. Laws 1969, c. 182, § 2.
    203. 25-829 Repealed. Laws 1969, c. 182, § 2.
    204. 25-830 Repealed. Laws 1969, c. 182, § 2.
    205. 25-831 Repealed. Laws 1969, c. 182, § 2.
    206. 25-832 Repealed. Laws 2002, LB 876, § 92.
    207. 25-833 Repealed. Laws 2002, LB 876, § 92.
    208. 25-834 Repealed. Laws 2002, LB 876, § 92.
    209. 25-835 Repealed. Laws 2002, LB 876, § 92.
    210. 25-836 Repealed. Laws 2002, LB 876, § 92.
    211. 25-837 Repealed. Laws 2002, LB 876, § 92.
    212. 25-838 Repealed. Laws 2002, LB 876, § 92.
    213. 25-839 Libel or slander; how sufficiently pleaded; burden of proof.
    214. 25-840 Libel or slander; truth as defense; effect of actual malice.
    215. 25-840.01 Libel; invasion of privacy; damages; retraction; effect.
    216. 25-840.02 Broadcasting stations; liability.
    217. 25-841 Repealed. Laws 2002, LB 876, § 92.
    218. 25-842 Repealed. Laws 2002, LB 876, § 92.
    219. 25-843 Repealed. Laws 2002, LB 876, § 92.
    220. 25-844 Repealed. Laws 2002, LB 876, § 92.
    221. 25-845 Repealed. Laws 2002, LB 876, § 92.
    222. 25-846 Repealed. Laws 2002, LB 876, § 92.
    223. 25-847 Repealed. Laws 2002, LB 876, § 92.
    224. 25-848 Repealed. Laws 2002, LB 876, § 92.
    225. 25-849 Repealed. Laws 2002, LB 876, § 92.
    226. 25-850 Repealed. Laws 2002, LB 876, § 92.
    227. 25-851 Repealed. Laws 2002, LB 876, § 92.
    228. 25-852 Repealed. Laws 2002, LB 876, § 92.
    229. 25-853 Repealed. Laws 2002, LB 876, § 92.
    230. 25-854 Repealed. Laws 2002, LB 876, § 92.
    231. 25-855 Repealed. Laws 2002, LB 876, § 92.
    232. 25-856 Repealed. Laws 2002, LB 876, § 92.
    233. 25-901 Offer of judgment before trial; procedure; effect.
    234. 25-902 Offer of judgment; no cause for continuance or postponement.
    235. 25-903 Submitting controversy without action; procedure.
    236. 25-904 Record; what constitutes.
    237. 25-905 Judgment; effect.
    238. 25-906 Confession of judgment after action brought; effect.
    239. 25-907 Confession of judgment before action brought; effect.
    240. 25-908 Motion, defined.
    241. 25-909 Motion; several objects authorized.
    242. 25-910 Notice of motion; contents.
    243. 25-911 Repealed. Laws 1961, c. 284, § 1.
    244. 25-912 Repealed. Laws 1961, c. 284, § 1.
    245. 25-913 Motion to strike pleadings and papers from files; notice, when.
    246. 25-914 Order, defined.
    247. 25-915 Orders out of court; journal entry.
    248. 25-1001 Attachment; grounds.
    249. 25-1002 Attachment; affidavit of plaintiff; contents.
    250. 25-1003 Attachment; plaintiff's undertaking; bond; amount.
    251. 25-1004 Attachment; order; contents; service; manner.
    252. 25-1005 Attachment; several and successive orders; issuance to several counties; costs; taxation.
    253. 25-1006 Attachment; order; return day.
    254. 25-1007 Attachment; several orders against same defendant; time of service.
    255. 25-1008 Attachment; order; execution; inventory; appraisement.
    256. 25-1009 Attachment or garnishment; delivery of property to defendant or garnishee; conditions.
    257. 25-1010 Attachment; garnishment; affidavit; summons; answer; duties of garnishee; written interrogatories.
    258. 25-1011 Garnishment; service upon garnishee; forms; notice; hearing.
    259. 25-1012 Repealed. Laws 1980, LB 597, § 18.
    260. 25-1012.01 Garnishment; public officers and employees.
    261. 25-1012.02 Garnishment; public officers and employees; procedure; process; answer.
    262. 25-1013 Repealed. Laws 1980, LB 597, § 18.
    263. 25-1014 Several attachments of same property; inventory and appraisement.
    264. 25-1015 Attached property; subsequent orders; procedure.
    265. 25-1016 Order of attachment; return; contents.
    266. 25-1017 Order of attachment; effect; lien of consignee; interest and other costs; how computed.
    267. 25-1018 Attachment; receiver; appointment; oath; bond; accounting.
    268. 25-1019 Attachment; receiver; powers and duties; actions by.
    269. 25-1020 Attachment; receiver; appointment; notice to debtors of defendant in attachment; effect.
    270. 25-1021 Attachment; receiver; reports; custody of property; duties.
    271. 25-1022 Attachment; sheriff; powers when no receiver appointed; bond.
    272. 25-1023 Attached property; preservation; sale; proceeds.
    273. 25-1024 Attachment; discharge; bond; effect; restitution of property or proceeds.
    274. 25-1025 Attachment; discharge; bond, how executed.
    275. 25-1026 Garnishee; answer; interrogatories; filing fee; costs.
    276. 25-1027 Garnishee; payment into court; effect; costs.
    277. 25-1028 Garnishee; failure to answer; presumption; judgment.
    278. 25-1029 Garnishment; property; delivery into court; bond in lieu of delivery.
    279. 25-1030 Garnishee; answer; controvert; allegations; liability; release.
    280. 25-1030.01 Garnishee; application; notice; manner of service.
    281. 25-1030.02 Garnishee; application; hearing; judgment.
    282. 25-1030.03 Garnishment; ownership of property; intervention; trial.
    283. 25-1031 Garnishee; final judgment; when rendered; effect; discharge by delivery of property; costs.
    284. 25-1031.01 Garnishment; judgment; effect.
    285. 25-1031.02 Garnishment; costs; fee.
    286. 25-1032 Attachment; judgment for defendant; effect; return of property or proceeds.
    287. 25-1033 Attachment; judgment for plaintiff; how satisfied; return of surplus.
    288. 25-1034 Attached property; delivery to sheriff; power of court to compel.
    289. 25-1035 Attached property out of sheriff's possession; repossession; power of court to order.
    290. 25-1036 Attachment; intervening claimants; proceeding to ascertain title.
    291. 25-1037 Several attachments; same property; reference.
    292. 25-1038 Repealed. Laws 1980, LB 597, § 18.
    293. 25-1039 Attachment; additional security; right of defendant to require.
    294. 25-1040 Attachment; motion to discharge; right of defendant.
    295. 25-1041 Attachment; motion to discharge; evidence.
    296. 25-1042 Attachment; county court; procedure.
    297. 25-1043 Attachment of lands in another county; copy to be filed with register of deeds.
    298. 25-1044 Attachment of lands in another county; writ and certificate; recording constitutes notice.
    299. 25-1045 Attachment; discharge; duty of clerk to certify; duty of register of deeds to record.
    300. 25-1046 Attachment; copy of order; taxation as costs.
    301. 25-1047 Attachment; order of discharge; when and how superseded.
    302. 25-1048 Attachment; order of discharge; appeal; original action unaffected.
    303. 25-1049 Attachment; claims not due; action authorized; when.
    304. 25-1050 Attachment; claims not due; procedure; affidavit required.
    305. 25-1051 Attachment order in actions on claims not due; refusal requires dismissal of action.
    306. 25-1052 Attachment order in actions on claims not due; amount; specification.
    307. 25-1053 Repealed. Laws 1980, LB 597, § 18.
    308. 25-1054 Attachment in actions on claims not due; judgment; when rendered.
    309. 25-1055 Attachment in actions on claims not due; procedure in general.
    310. 25-1056 Garnishment in aid of execution; when issued; procedure; continuing lien; when invalid; priority.
    311. 25-1057 Repealed. Laws 1953, c. 68, § 2.
    312. 25-1058 Repealed. Laws 1953, c. 68, § 2.
    313. 25-1059 Repealed. Laws 1953, c. 68, § 2.
    314. 25-1060 Repealed. Laws 1953, c. 68, § 2.
    315. 25-1061 Repealed. Laws 1953, c. 68, § 2.
    316. 25-1062 Injunction, defined.
    317. 25-1062.01 Director of Natural Resources, defined; notice to appropriator; how given.
    318. 25-1063 Temporary injunction; issuance; grounds.
    319. 25-1064 Temporary injunctions and restraining orders; courts and judges empowered to issue; conditions; temporary restraining order granted without notice; requirements; actions involving irrigation w
    320. 25-1064.01 Order granting an injunction; restraining order; requirements.
    321. 25-1064.02 Sections, how construed.
    322. 25-1065 Repealed. Laws 1986, LB 516, § 17.
    323. 25-1066 Repealed. Laws 1986, LB 516, § 17.
    324. 25-1067 Injunctions; security.
    325. 25-1068 Service of order of injunction; when not required.
    326. 25-1069 Service of order; return.
    327. 25-1070 Injunctions; when binding.
    328. 25-1071 Injunctions not granted; when.
    329. 25-1072 Enforcement; disobedience; punishment.
    330. 25-1073 Motion for additional security; vacation.
    331. 25-1074 Hearings; affidavits.
    332. 25-1075 Injunction without notice; vacation; modification; notice.
    333. 25-1076 Injunction without notice; showing and counter-showing; affidavits.
    334. 25-1077 Counterclaim; injunction upon.
    335. 25-1078 Temporary injunction; modification; dissolution; supersedeas bond.
    336. 25-1079 Temporary injunction; modification; dissolution; supersedeas bond; when executed; form; contents.
    337. 25-1080 Temporary injunction; modification; dissolution; supersedeas bond; effect.
    338. 25-1081 Appointment of receiver; grounds.
    339. 25-1082 Notice of application for appointment; service.
    340. 25-1083 Property; possession by sheriff; when authorized; restitution.
    341. 25-1084 Applicants for receiver; bonds required; contents; filing.
    342. 25-1085 Application; form; content.
    343. 25-1086 Qualifications of receiver; sureties; objections; nomination by other parties.
    344. 25-1087 Order of appointment; special directions.
    345. 25-1088 Receivers; extent of representation.
    346. 25-1089 Appointment of receiver without notice; void.
    347. 25-1090 Inconclusive decree; appointment of master; disposition of property; orders; appeal.
    348. 25-1091 Receivers; disobedience of orders; punishment; sheriff may act.
    349. 25-1092 Receivers; compensation.
    350. 25-1093 Replevin; delivery of property; notice, when required.
    351. 25-1093.01 Request delivery of property; affidavit; contents.
    352. 25-1093.02 Affidavit; filing; service; temporary order; effect; hearing; when.
    353. 25-1093.03 Affidavit; temporary order; notice; hearing.
    354. 25-1093.04 Order for delivery of property.
    355. 25-1094 Order for delivery; contents.
    356. 25-1095 Order for delivery; contents.
    357. 25-1096 Order for delivery; when returnable.
    358. 25-1097 Order for delivery; how executed.
    359. 25-1098 Delivery of property to plaintiff; bond; contents; return; redelivery bond.
    360. 25-1099 Bond; amount; determination; appraisal.
    361. 25-10,100 Failure to furnish bond; duty and liability of officer; return of property to defendant.
    362. 25-10,101 Bond; objections to sureties; waiver; liability of officer.
    363. 25-10,102 Judgment against plaintiff upon dismissal; failure of plaintiff to prosecute; procedure.
    364. 25-10,103 Verdict for defendant; further findings required; damages.
    365. 25-10,104 Judgment for defendant; irregularity in process or jurisdictional defect; restoration of status quo.
    366. 25-10,105 Judgment for plaintiff; damages; costs.
    367. 25-10,106 Property not taken or returned to defendant; judgment for plaintiff; nature and amount.
    368. 25-10,107 Order for delivery of property; directed to other counties; successive orders; taxation of costs.
    369. 25-10,108 Order of delivery; execution; powers of officer.
    370. 25-10,109 Suits on undertakings; when brought.
    371. 25-10,110 Order for delivery of property; issuance without court order; effect; taxation of costs.
    372. 25-1101 Issues; kinds.
    373. 25-1102 Issue of fact; how formed.
    374. 25-1103 Trial, defined.
    375. 25-1104 Issues; how tried generally; court and jury.
    376. 25-1105 Issues of fact triable to court.
    377. 25-1106 Formation of jury; applicability of law.
    378. 25-1107 Order of trial.
    379. 25-1107.01 Jurors; permitted to take notes; use; destruction.
    380. 25-1108 View of property or place by jury.
    381. 25-1109 Cause submitted; action and conduct of jury.
    382. 25-1110 Jury; separation; admonition of court.
    383. 25-1111 Instructions by court; requested instructions; requirements.
    384. 25-1112 Requested instruction; how modified.
    385. 25-1113 Given or refused instructions; how indicated; requirements.
    386. 25-1114 Instructions; paragraphing; numbering; filing; record.
    387. 25-1115 Instructions; oral explanation prohibited; failure to reduce instructions to writing; failure of court to perform duty; effect.
    388. 25-1116 Instructions after retirement.
    389. 25-1117 Jury; when discharged.
    390. 25-1118 Jury; retrial on discharge.
    391. 25-1119 Assessment of amount of recovery.
    392. 25-1120 Special verdict; controls general verdict.
    393. 25-1121 Special verdicts; when allowed; procedure; filing; record.
    394. 25-1122 General and special verdicts; definitions; form of special verdicts generally.
    395. 25-1123 Verdict; form; correction.
    396. 25-1124 Rendition of verdict; polling of jury.
    397. 25-1125 Five-sixths verdict; jurors to sign.
    398. 25-1126 Jury trial; waiver.
    399. 25-1127 Trial by court; general finding; findings of fact; conclusions of law.
    400. 25-1128 Trial by the court; provisions for jury trials applicable.
    401. 25-1129 Reference by consent; when allowed.
    402. 25-1130 Reference by court order; when allowed.
    403. 25-1131 Trial by referee; procedure; findings of fact; conclusions of law; effect.
    404. 25-1132 Referees; how chosen; number.
    405. 25-1133 Repealed. Laws 2008, LB 1014, § 80.
    406. 25-1134 Trial by referee; exceptions; report.
    407. 25-1135 Reference in vacation; written consent required.
    408. 25-1136 Referees; oath or affirmation.
    409. 25-1137 Referees; compensation.
    410. 25-1138 Exception, defined.
    411. 25-1139 Taking and noting of exceptions; unnecessary, when.
    412. 25-1140 Bill of exceptions; filing of request; further proceedings governed by rules of court.
    413. 25-1140.01 Repealed. Laws 1959, c. 104, § 3.
    414. 25-1140.02 Repealed. Laws 1959, c. 104, § 3.
    415. 25-1140.03 Repealed. Laws 1959, c. 104, § 3.
    416. 25-1140.04 Repealed. Laws 1959, c. 104, § 3.
    417. 25-1140.05 Repealed. Laws 1959, c. 104, § 3.
    418. 25-1140.06 Repealed. Laws 1959, c. 104, § 3.
    419. 25-1140.07 Repealed. Laws 1959, c. 104, § 3.
    420. 25-1140.08 Bill of exceptions; boards and tribunals; filing of request; further proceedings governed by rules of court.
    421. 25-1140.09 Bill of exceptions; preparation; court reporter; fees; procedure for preparation; taxation of cost.
    422. 25-1141 Testimony; repetition of objections unnecessary.
    423. 25-1142 New trial, defined; grounds.
    424. 25-1143 Repealed. Laws 2000, LB 921, § 38.
    425. 25-1144 New trial; motion; form.
    426. 25-1144.01 New trial; motion; when filed; filing before entry of judgment; treatment.
    427. 25-1145 Repealed. Laws 2000, LB 921, § 38.
    428. 25-1146 Damages.
    429. 25-1147 Actions; when triable.
    430. 25-1148 Continuance or adjournment of causes pending; motion; affidavits; oral testimony; order; effect.
    431. 25-1149 Issues; order in which tried; time of hearing.
    432. 25-1150 Transferred to section 25-21,184.
    433. 25-1151 Transferred to section 25-21,185.
    434. 25-1152 Transferred to section 25-21,186.
    435. 25-1153 Transferred to section 25-21,187.
    436. 25-1154 Legislative purpose and findings.
    437. 25-1155 Motion; when granted; contents.
    438. 25-1156 Trial; how conducted.
    439. 25-1157 Trial; use of verdict; records; not required.
    440. 25-1201 Repealed. Laws 1975, LB 279, § 75.
    441. 25-1202 Repealed. Laws 1975, LB 279, § 75.
    442. 25-1203 Repealed. Laws 1975, LB 279, § 75.
    443. 25-1204 Repealed. Laws 1975, LB 279, § 75.
    444. 25-1205 Repealed. Laws 1975, LB 279, § 75.
    445. 25-1206 Repealed. Laws 1975, LB 279, § 75.
    446. 25-1207 Repealed. Laws 1975, LB 279, § 75.
    447. 25-1208 Repealed. Laws 1975, LB 279, § 75.
    448. 25-1209 Witnesses; answer subjecting to civil liability; not privileged.
    449. 25-1210 Witnesses; answer subjecting to criminal liability; disgracing answer; privilege.
    450. 25-1211 Witnesses; credibility; impeachment.
    451. 25-1212 Repealed. Laws 1951, c. 62, § 5.
    452. 25-1213 Notarial protest as evidence of dishonor; bill of exchange or promissory note.
    453. 25-1214 Repealed. Laws 1975, LB 279, § 75.
    454. 25-1215 Repealed. Laws 1975, LB 279, § 75.
    455. 25-1216 Evidence; instrument; written and printed matter; writing controls.
    456. 25-1217 Agreements; construction of terms.
    457. 25-1218 Works of history, science, or art; presumptive evidence.
    458. 25-1219 Repealed. Laws 1975, LB 279, § 75.
    459. 25-1220 Handwriting; proof by comparison; experts; jury.
    460. 25-1221 Repealed. Laws 1975, LB 279, § 75.
    461. 25-1222 Private writing; when admissible without proof.
    462. 25-1222.01 Advance payment by person or corporation to injured person; not admission against interest; credit for payment; not admissible as evidence at trial.
    463. 25-1222.02 Repealed. Laws 1982, LB 716, § 4.
    464. 25-1223 Subpoena; issuance; by whom served; return; costs.
    465. 25-1224 Subpoena; to whom directed; duces tecum.
    466. 25-1225 Subpoena on taking deposition; by whom issued.
    467. 25-1226 Subpoena; manner of service; time; return.
    468. 25-1227 Witnesses in civil cases; compulsory attendance; distance required to travel; fees and expenses allowed.
    469. 25-1228 Subpoena; duty of witness; privilege as to fees and expenses; return.
    470. 25-1229 Subpoena; disobedience; refusal to testify or sign deposition; contempt.
    471. 25-1230 Subpoena; disobedience; attachment; undertaking; rule to show cause.
    472. 25-1231 Subpoena; disobedience; refusal to testify or sign deposition; punishment of witness for contempt.
    473. 25-1232 Subpoena; disobedience; attachment; commitment; form; to whom directed.
    474. 25-1233 Prisoner; examination; deposition; production order.
    475. 25-1234 Prisoner; deposition; manner of taking.
    476. 25-1235 Subpoena; nonresident witness; immunity from service of summons.
    477. 25-1236 Witnesses; duty to testify; privilege as to fees.
    478. 25-1237 Repealed. Laws 1975, LB 279, § 75.
    479. 25-1238 Subpoena; witness avoiding service; powers of officer.
    480. 25-1239 Subpoena to party; failure to attend and testify; continuance; costs.
    481. 25-1240 Testimony; how taken.
    482. 25-1241 Affidavit, defined.
    483. 25-1242 Deposition, defined.
    484. 25-1243 Oral examination, defined.
    485. 25-1244 Affidavit; when used.
    486. 25-1245 Affidavit; before whom made; attorney at law not disqualified.
    487. 25-1246 Repealed. Laws 1951, c. 68, § 43.
    488. 25-1247 Repealed. Laws 1951, c. 68, § 43.
    489. 25-1248 Repealed. Laws 1951, c. 68, § 43.
    490. 25-1249 Repealed. Laws 1951, c. 68, § 43.
    491. 25-1250 Repealed. Laws 1951, c. 68, § 43.
    492. 25-1251 Repealed. Laws 1951, c. 68, § 43.
    493. 25-1252 Repealed. Laws 1951, c. 68, § 43.
    494. 25-1253 Repealed. Laws 1951, c. 68, § 43.
    495. 25-1254 Repealed. Laws 1951, c. 68, § 43.
    496. 25-1255 Repealed. Laws 1951, c. 68, § 43.
    497. 25-1256 Repealed. Laws 1951, c. 68, § 43.
    498. 25-1257 Repealed. Laws 1951, c. 68, § 43.
    499. 25-1258 Repealed. Laws 1951, c. 68, § 43.
    500. 25-1259 Repealed. Laws 1951, c. 68, § 43.
    501. 25-1260 Repealed. Laws 1951, c. 68, § 43.
    502. 25-1261 Repealed. Laws 1951, c. 68, § 43.
    503. 25-1262 Repealed. Laws 1951, c. 68, § 43.
    504. 25-1263 Repealed. Laws 1951, c. 68, § 43.
    505. 25-1264 Repealed. Laws 1951, c. 68, § 43.
    506. 25-1265 Repealed. Laws 1951, c. 68, § 43.
    507. 25-1266 Repealed. Laws 1951, c. 68, § 43.
    508. 25-1267 Repealed. Laws 1951, c. 68, § 43.
    509. 25-1267.01 Repealed. Laws 1982, LB 716, § 4.
    510. 25-1267.02 Repealed. Laws 1982, LB 716, § 4.
    511. 25-1267.03 Repealed. Laws 1982, LB 716, § 4.
    512. 25-1267.04 Repealed. Laws 1982, LB 716, § 4.
    513. 25-1267.05 Repealed. Laws 1982, LB 716, § 4.
    514. 25-1267.06 Repealed. Laws 1982, LB 716, § 4.
    515. 25-1267.07 Repealed. Laws 1982, LB 716, § 4.
    516. 25-1267.08 Repealed. Laws 1982, LB 716, § 4.
    517. 25-1267.09 Repealed. Laws 1982, LB 716, § 4.
    518. 25-1267.10 Repealed. Laws 1982, LB 716, § 4.
    519. 25-1267.11 Repealed. Laws 1982, LB 716, § 4.
    520. 25-1267.12 Repealed. Laws 1982, LB 716, § 4.
    521. 25-1267.13 Repealed. Laws 1982, LB 716, § 4.
    522. 25-1267.14 Repealed. Laws 1982, LB 716, § 4.
    523. 25-1267.15 Repealed. Laws 1982, LB 716, § 4.
    524. 25-1267.16 Repealed. Laws 1982, LB 716, § 4.
    525. 25-1267.17 Repealed. Laws 1982, LB 716, § 4.
    526. 25-1267.18 Repealed. Laws 1982, LB 716, § 4.
    527. 25-1267.19 Repealed. Laws 1982, LB 716, § 4.
    528. 25-1267.20 Repealed. Laws 1982, LB 716, § 4.
    529. 25-1267.21 Repealed. Laws 1982, LB 716, § 4.
    530. 25-1267.22 Repealed. Laws 1982, LB 716, § 4.
    531. 25-1267.23 Repealed. Laws 1982, LB 716, § 4.
    532. 25-1267.24 Repealed. Laws 1982, LB 716, § 4.
    533. 25-1267.25 Repealed. Laws 1982, LB 716, § 4.
    534. 25-1267.26 Repealed. Laws 1982, LB 716, § 4.
    535. 25-1267.27 Repealed. Laws 1982, LB 716, § 4.
    536. 25-1267.28 Repealed. Laws 1982, LB 716, § 4.
    537. 25-1267.29 Repealed. Laws 1982, LB 716, § 4.
    538. 25-1267.30 Repealed. Laws 1982, LB 716, § 4.
    539. 25-1267.31 Repealed. Laws 1982, LB 716, § 4.
    540. 25-1267.32 Repealed. Laws 1982, LB 716, § 4.
    541. 25-1267.33 Repealed. Laws 1982, LB 716, § 4.
    542. 25-1267.34 Repealed. Laws 1982, LB 716, § 4.
    543. 25-1267.35 Repealed. Laws 1982, LB 716, § 4.
    544. 25-1267.36 Repealed. Laws 1982, LB 716, § 4.
    545. 25-1267.37 Repealed. Laws 1982, LB 716, § 4.
    546. 25-1267.38 Repealed. Laws 1982, LB 716, § 4.
    547. 25-1267.39 Repealed. Laws 1982, LB 716, § 4.
    548. 25-1267.40 Repealed. Laws 1982, LB 716, § 4.
    549. 25-1267.41 Repealed. Laws 1982, LB 716, § 4.
    550. 25-1267.42 Repealed. Laws 1982, LB 716, § 4.
    551. 25-1267.43 Repealed. Laws 1982, LB 716, § 4.
    552. 25-1267.44 Repealed. Laws 1982, LB 716, § 4.
    553. 25-1267.45 Repealed. Laws 1982, LB 716, § 4.
    554. 25-1268 Discovery; delivery of copies of documents; refusal to deliver; penalty.
    555. 25-1269 Repealed. Laws 1975, LB 279, § 75.
    556. 25-1270 Repealed. Laws 1951, c. 68, § 43.
    557. 25-1271 Repealed. Laws 1951, c. 68, § 43.
    558. 25-1272 Repealed. Laws 1951, c. 68, § 43.
    559. 25-1273 Nonparty; discovery; subpoena; procedure.
    560. 25-1273.01 Rules of procedure.
    561. 25-1274 Legal notices; proof of publication.
    562. 25-1275 Legal notices; proof of posting or service.
    563. 25-1276 Other facts required to be shown by affidavit; how proved.
    564. 25-1277 Legal notices and other facts provable by affidavit; perpetuation of proof.
    565. 25-1278 Field notes or plat of county surveyor; when admissible.
    566. 25-1279 Repealed. Laws 1975, LB 279, § 75.
    567. 25-1280 Official records; certified copies; duty of custodian to furnish; fees.
    568. 25-1281 Official records; photographic copies; admissibility; destruction of original records.
    569. 25-1282 Official records; proof of lack of record.
    570. 25-1283 Land office receipts; effect as evidence.
    571. 25-1284 Official records; signature of custodian; genuineness presumed, when.
    572. 25-1285 Judicial records of Nebraska and federal courts; how proved.
    573. 25-1286 Deleted.
    574. 25-1287 Records of justice of the peace; how proved.
    575. 25-1288 Repealed. Laws 1975, LB 279, § 75.
    576. 25-1289 Repealed. Laws 1975, LB 279, § 75.
    577. 25-1290 Legislative proceedings; how proved.
    578. 25-1291 Repealed. Laws 1975, LB 279, § 75.
    579. 25-1292 Abstracts of title and title insurance policy; when used as evidence; certification.
    580. 25-1293 Public seal affixed to copy of written law or public writing; effect; unwritten law; how proved.
    581. 25-1294 Repealed. Laws 1951, c. 68, § 43.
    582. 25-1295 Repealed. Laws 1951, c. 68, § 43.
    583. 25-1296 Repealed. Laws 1951, c. 68, § 43.
    584. 25-1297 Repealed. Laws 1951, c. 68, § 43.
    585. 25-1298 Repealed. Laws 1951, c. 68, § 43.
    586. 25-1299 Repealed. Laws 1951, c. 68, § 43.
    587. 25-12,100 Repealed. Laws 1951, c. 68, § 43.
    588. 25-12,101 Judicial notice.
    589. 25-12,102 Information of the court.
    590. 25-12,103 Ruling reviewable.
    591. 25-12,104 Evidence as to laws of other jurisdictions.
    592. 25-12,105 Foreign country.
    593. 25-12,106 Interpretation.
    594. 25-12,107 Short title.
    595. 25-12,108 Repealed. Laws 1975, LB 279, § 75.
    596. 25-12,109 Repealed. Laws 1975, LB 279, § 75.
    597. 25-12,110 Repealed. Laws 1975, LB 279, § 75.
    598. 25-12,111 Repealed. Laws 1975, LB 279, § 75.
    599. 25-12,112 Admissibility of reproduced records in evidence; destruction of records; approval.
    600. 25-12,113 Sections, how construed.
    601. 25-12,114 Act, how cited.
    602. 25-12,115 Report or finding admissible.
    603. 25-12,116 Cross-examination by adverse party.
    604. 25-12,117 Notice; copy of report or finding.
    605. 25-12,118 Sections, how construed.
    606. 25-12,119 Act, how cited.
    607. 25-12,120 Hospital records, examination, and inspection; hospital medical staff committee; hospitalization utilization committee.
    608. 25-12,121 Hospital medical staff committee; hospital utilization committee; extended care facility utilization committee; recommendations or orders; liability for damages.
    609. 25-12,122 Repealed. Laws 1975, LB 279, § 75.
    610. 25-12,123 Peer review committee; proceedings and records; testimony; use in civil actions; limitation.
    611. 25-12,124 Statement, defined.
    612. 25-12,125 Rebuttable presumption; when.
    613. 25-12,126 Sections, how construed.
    614. 25-1301 Judgment, rendition of judgment, entry of judgment, decree, or final order, defined; records.
    615. 25-1301.01 Civil judgment; mailing of copy; duty of clerk; exception.
    616. 25-1302 Repealed. Laws 2000, LB 921, § 38.
    617. 25-1303 Transcript of judgment to other county; effect.
    618. 25-1304 Decree for conveyance; effect.
    619. 25-1305 Federal court judgment; transcript to other county; effect.
    620. 25-1306 Dissolution of lien; deposit; bond; appellate proceedings.
    621. 25-1307 Dissolution of lien; disposition of deposit.
    622. 25-1308 Judgment upon failure to answer; procedure.
    623. 25-1309 Right to confess judgment; creditor's assent necessary.
    624. 25-1310 Judgment by confession; contents.
    625. 25-1311 Enforcement of judgment.
    626. 25-1312 Confession of judgment by attorney; warrant; requirements.
    627. 25-1313 Jury trial; rendition of judgment by court; entry by clerk.
    628. 25-1314 Entry of judgment by court; when required.
    629. 25-1315 Multiple claims or parties; effect.
    630. 25-1315.01 Motion for directed verdict; joinder; effect; requisites.
    631. 25-1315.02 Motion for directed verdict at close of evidence; effect; filing before entry of judgment; treatment; motion to set aside verdict or judgment; power of court.
    632. 25-1315.03 Order for directed verdict or for new trial; appeal.
    633. 25-1316 Judgment upon counterclaim or setoff.
    634. 25-1317 Judgment or order; infant's right reserved.
    635. 25-1318 Judgments and orders; journal entry.
    636. 25-1319 Complete record; duty of clerk; waiver.
    637. 25-1320 Complete record; when made; judge to sign.
    638. 25-1321 Complete record; contents.
    639. 25-1322 Complete record; extension of time for making and subscribing.
    640. 25-1323 Complete record; when unnecessary.
    641. 25-1324 Complete record; action dismissed without prejudice.
    642. 25-1325 Complete record; action dismissed; setoff and counterclaim.
    643. 25-1326 Judicial sale; conveyance of land by master commissioner; when allowed; postponement of sale; notice.
    644. 25-1327 Judicial sale; sheriff as master commissioner.
    645. 25-1328 Judicial sale; deed of commissioner; form and execution.
    646. 25-1329 Motion; when filed; filing before entry of judgment; treatment.
    647. 25-1330 Claimant; right to move for summary judgment.
    648. 25-1331 Defending party; right to move for summary judgment.
    649. 25-1332 Motion for summary judgment; proceedings.
    650. 25-1333 Case not fully adjudicated on motion.
    651. 25-1334 Form of affidavits; further testimony.
    652. 25-1335 Party unable to justify opposition by affidavit; refusal of order; continuance.
    653. 25-1336 Affidavit made in bad faith.
    654. 25-1401 Causes of action which survive.
    655. 25-1402 Actions which abate by death of defendant.
    656. 25-1403 Death of one of several parties; cessation of powers of personal representative; right of action surviving to or against remaining parties; procedure.
    657. 25-1404 Death of one of several parties; cessation of powers of personal representative; right of action not surviving to or against remaining parties; procedure.
    658. 25-1405 Death of party; cessation of powers of personal representative; right of action surviving to or against successor; revivor.
    659. 25-1406 Revivor; procedure; conditional order.
    660. 25-1407 Revivor; procedure; motion.
    661. 25-1408 Revivor; procedure; service of order; order by consent.
    662. 25-1409 Revivor; procedure; service of order by publication.
    663. 25-1410 Death of plaintiff; in whose name action revived.
    664. 25-1411 Death of defendant; against whom action revived.
    665. 25-1412 Death of defendant in actions to recover real property; against whom action revived.
    666. 25-1413 Revivor as to defendant; time; limitation.
    667. 25-1414 Revivor as to plaintiff; time; limitation; revivor as to both parties.
    668. 25-1415 Abatement of actions by death or cessation of powers of representative; duty of court.
    669. 25-1416 Death of plaintiff; right of defendant to compel revivor.
    670. 25-1417 Revived action; when tried.
    671. 25-1418 Joint debtors not originally summoned made judgment debtors.
    672. 25-1419 Death of parties after judgment; revivor in name of representatives of deceased.
    673. 25-1420 Dormant judgment; revivor; time limitation.
    674. 25-1501 Executions; by whom issued; how directed.
    675. 25-1502 Kinds of executions.
    676. 25-1503 Property subject to levy and sale.
    677. 25-1504 Lien of judgment; when attaches; lands within county where entered; other lands; chattels.
    678. 25-1505 Stay of execution; maximum period.
    679. 25-1506 Order of sale of mortgaged premises; how stayed; length of stay.
    680. 25-1507 Execution; how stayed.
    681. 25-1508 Stay bonds; approval; justification of sureties.
    682. 25-1509 Stay of execution; surety on stay bond excepted; no appeal after stay.
    683. 25-1510 Stay of execution; sureties; approval; bond tantamount to judgment confessed.
    684. 25-1511 Stay of execution; recall of writ; duties of clerk and sheriff.
    685. 25-1512 Stay of execution; property and undertakings relinquished.
    686. 25-1513 Stay of execution; expiration; writ to issue; duty of clerk.
    687. 25-1514 Stay of execution; judgment liens not released.
    688. 25-1515 Judgment; when dormant.
    689. 25-1516 Writ of execution; levy on real property; when; service upon debtor; procedure; State Court Administrator; duties; claim of exemption; hearing; valuation of motor vehicle.
    690. 25-1517 Several writs of execution; preference.
    691. 25-1518 Levy of execution.
    692. 25-1519 Repealed. Laws 1967, c. 147, § 1, p. 444.
    693. 25-1520 Repealed. Laws 1967, c. 147, § 1, p. 444.
    694. 25-1521 Intervening claimants; proceedings to ascertain title.
    695. 25-1522 Intervening claimants; proceedings to ascertain title; procedure; judgment; effect.
    696. 25-1523 Intervening claimants; proceedings before jury to ascertain title; levy notwithstanding verdict; bond.
    697. 25-1524 Goods unsold; delivery bond.
    698. 25-1525 Goods unsold; additional writ; notice of sale.
    699. 25-1526 Additional writ; goods unsold insufficient; further levy and sale.
    700. 25-1527 Sale of land; prior sale set aside; readvertisement.
    701. 25-1528 Successive executions or orders of sale; when authorized.
    702. 25-1529 Sale of land; notice; publication; effect of failure to publish.
    703. 25-1530 Foreclosure; redemption of land from levy and sale; rights of mortgagor; terminated, when.
    704. 25-1531 Mortgage foreclosure; confirmation of sale; grounds for refusing to confirm; time; motion; notice.
    705. 25-1532 Sale upon execution; deed to purchaser.
    706. 25-1533 Sale upon execution; deed to purchaser; form; estate conveyed.
    707. 25-1534 Sale of lands and chattels; printer's fees to be advanced; effect of noncompliance.
    708. 25-1535 Sale of lands and chattels; printer's fees; officer must demand.
    709. 25-1536 Sales of lands or tenements; where held; officer disqualified to purchase.
    710. 25-1537 Lands unsold; additional writs.
    711. 25-1538 Several writs of execution; levy on real property; how made; preference.
    712. 25-1539 Sale of lands and tenements; deed by sheriff's successor.
    713. 25-1540 Sale on execution; disposition of proceeds.
    714. 25-1541 Sale of lands or tenements; reversal of judgment; title of purchaser; restitution.
    715. 25-1542 Judgment lien; when lost.
    716. 25-1543 Writ of execution; when returnable.
    717. 25-1544 Judgment against principal and surety; how entered; how executed.
    718. 25-1545 Execution; sheriff; amercement; causes; procedure.
    719. 25-1546 Clerk of court; amercement; causes; procedure.
    720. 25-1547 Amercement; amount; limit.
    721. 25-1548 Execution to another county; return by mail; effect upon liability of officer.
    722. 25-1549 Amercement; motion; notice; effect of entry; transmission of money.
    723. 25-1550 Amercement; judgment; liability of sureties; execution.
    724. 25-1551 Amercement; execution on original judgment; rights of officer.
    725. 25-1552 Personal property except wages; debtors; claim of exemption; procedure.
    726. 25-1553 Federal or state earned income tax credit refund; when exempt.
    727. 25-1554 Repealed. Laws 1993, LB 458, § 15.
    728. 25-1555 Exemptions; not applicable to tax sales.
    729. 25-1556 Specific exemptions; personal property; selection by debtor.
    730. 25-1557 Actions in which exemptions limited or not allowed.
    731. 25-1558 Wages; subject to garnishment; amount; exceptions.
    732. 25-1559 Pensions of disabled soldiers and sailors; property purchased therewith; limit.
    733. 25-1560 Exempt wages; interstate business; attachment or garnishment by method to avoid exemption laws; unlawful.
    734. 25-1561 Exempt wages; interstate business; law violation; aiders; abettors.
    735. 25-1562 Exempt wages; interstate business; violation of sections; evidence.
    736. 25-1563 Exempt wages; interstate business; violation; penalty.
    737. 25-1563.01 Stock, pension, or similar plan or contract; exempt from certain process; when.
    738. 25-1563.02 Lump-sum settlement; structured settlement; exempt from certain process; when.
    739. 25-1564 Property of debtor other than lands and chattels subject to payment of judgment.
    740. 25-1565 Discovery of property of debtor; order to appear and answer.
    741. 25-1566 Discovery of property of debtor; warrant for arrest; examination; undertaking; punishment for contempt.
    742. 25-1567 Discovery of property of debtor; examination; debtor's incriminating answers; not privileged; immunity.
    743. 25-1568 Execution; satisfaction; payment by debtors of judgment debtor.
    744. 25-1569 Debtors of judgment debtor; examination; notice.
    745. 25-1570 Discovery of property of debtor; examination; witnesses.
    746. 25-1571 Discovery of property of debtor; examination; oath; referee.
    747. 25-1572 Discovery of property of debtor; disposition by judge.
    748. 25-1573 Discovery of property of debtor; appointment of receiver; transfer of nonexempt property; power of court to prevent.
    749. 25-1574 Discovery of property of debtor; receiver; liability of officer and sureties; undertaking; oath.
    750. 25-1575 Discovery of property of debtor; proceedings; continuance.
    751. 25-1576 Discovery of property of debtor; reference.
    752. 25-1577 Discovery of property of debtor; disobedience of order of court; penalty.
    753. 25-1578 Discovery of property of debtor; orders to judgment debtors and witnesses; service; filing; record.
    754. 25-1579 Discovery of property of debtor; proceedings; fees; taxation as costs.
    755. 25-1580 Discovery of property of debtor; proceedings; county judge; fees.
    756. 25-1581 Execution; contents; satisfaction of damages and costs.
    757. 25-1582 Judgment other than for the recovery of money or real property; enforcement by attachment or rule of court; notice.
    758. 25-1583 Repealed. Laws 1972, LB 1032, § 287.
    759. 25-1584 Repealed. Laws 1972, LB 1032, § 287.
    760. 25-1585 Repealed. Laws 1972, LB 1032, § 287.
    761. 25-1586 Repealed. Laws 1972, LB 1032, § 287.
    762. 25-1587 Repealed. Laws 1993, LB 458, § 15.
    763. 25-1587.01 Act, how cited.
    764. 25-1587.02 Foreign judgment, defined.
    765. 25-1587.03 Filing and status of foreign judgments.
    766. 25-1587.04 Notice of filing.
    767. 25-1587.05 Stay.
    768. 25-1587.06 Fees.
    769. 25-1587.07 Optional procedure.
    770. 25-1587.08 Uniformity of interpretation.
    771. 25-1587.09 Foreign judgments registered under prior law.
    772. 25-1588 Repealed. Laws 1993, LB 458, § 15.
    773. 25-1589 Repealed. Laws 1993, LB 458, § 15.
    774. 25-1590 Repealed. Laws 1993, LB 458, § 15.
    775. 25-1591 Repealed. Laws 1993, LB 458, § 15.
    776. 25-1592 Repealed. Laws 1993, LB 458, § 15.
    777. 25-1593 Repealed. Laws 1993, LB 458, § 15.
    778. 25-1594 Repealed. Laws 1993, LB 458, § 15.
    779. 25-1595 Repealed. Laws 1993, LB 458, § 15.
    780. 25-1596 Repealed. Laws 1993, LB 458, § 15.
    781. 25-1597 Repealed. Laws 1993, LB 458, § 15.
    782. 25-1598 Repealed. Laws 1993, LB 458, § 15.
    783. 25-1599 Repealed. Laws 1993, LB 458, § 15.
    784. 25-15,100 Repealed. Laws 1993, LB 458, § 15.
    785. 25-15,101 Repealed. Laws 1993, LB 458, § 15.
    786. 25-15,102 Repealed. Laws 1993, LB 458, § 15.
    787. 25-15,103 Repealed. Laws 1993, LB 458, § 15.
    788. 25-15,104 Repealed. Laws 1993, LB 458, § 15.
    789. 25-15,105 Federal exemptions; rejected.
    790. 25-1601 Jurors; competency; disqualified; excused, when.
    791. 25-1601.01 Repealed. Laws 1977, LB 283, § 4.
    792. 25-1601.02 Repealed. Laws 1967, c. 149, § 1, p. 446.
    793. 25-1601.03 Legislative intent; jury system.
    794. 25-1602 Jurors; actions to which municipal corporation a party; inhabitants and taxpayers; competency.
    795. 25-1603 Jurors; selection.
    796. 25-1604 Repealed. Laws 1953, c. 72, § 16, p. 237.
    797. 25-1605 Repealed. Laws 1953, c. 72, § 16, p. 237.
    798. 25-1606 Jurors; how summoned; notice.
    799. 25-1607 Jurors; appearance.
    800. 25-1608 Repealed. Laws 1953, c. 72, § 16, p. 237.
    801. 25-1609 Jurors; grounds for challenge; sufficiency of challenge.
    802. 25-1610 Repealed. Laws 1953, c. 72, § 16, p. 237.
    803. 25-1611 Jurors; failure to appear; neglect of officers; penalties.
    804. 25-1612 Packing juries; solicitation of jury service; penalties.
    805. 25-1613 Repealed. Laws 1953, c. 72, § 16, p. 237.
    806. 25-1614 Repealed. Laws 1953, c. 72, § 16, p. 237.
    807. 25-1615 Repealed. Laws 1953, c. 72, § 16, p. 237.
    808. 25-1616 Repealed. Laws 1953, c. 72, § 16, p. 237.
    809. 25-1617 Repealed. Laws 1953, c. 72, § 16, p. 237.
    810. 25-1618 Repealed. Laws 1953, c. 72, § 16, p. 237.
    811. 25-1619 Repealed. Laws 1953, c. 72, § 16, p. 237.
    812. 25-1620 Repealed. Laws 1953, c. 72, § 16, p. 237.
    813. 25-1621 Repealed. Laws 1953, c. 72, § 16, p. 237.
    814. 25-1622 Repealed. Laws 1953, c. 72, § 16, p. 237.
    815. 25-1623 Repealed. Laws 1953, c. 72, § 16, p. 237.
    816. 25-1624 Repealed. Laws 1953, c. 72, § 16, p. 237.
    817. 25-1625 Jury commissioner; designation; salary; expenses; duties.
    818. 25-1626 Jury commissioner; compensation in counties over 200,000 inhabitants; assistance; deputy; appointment; powers.
    819. 25-1626.01 Repealed. Laws 1959, c. 266, § 1, p. 953.
    820. 25-1626.02 Jury commissioner in counties over 200,000 population; salary increase, when effective.
    821. 25-1627 Jury list; key number; determination; record.
    822. 25-1627.01 Jury list; counties having less than 3,000 inhabitants; two key numbers; additional key numbers; when.
    823. 25-1628 Jury list; how made up.
    824. 25-1629 Proposed jury list; qualification form; investigation; revision; complaints; grand jury list; when drawn.
    825. 25-1629.01 Juror qualification form; prospective juror; complete; return; when.
    826. 25-1629.02 Juror qualification form; failure to return; effect; contempt of court.
    827. 25-1629.03 One-step qualifying and summoning system.
    828. 25-1629.04 One-step qualifying and summoning system; procedure.
    829. 25-1630 Jury list; how kept; tampering; solicitation; penalty.
    830. 25-1631 County court; advance jury selection; when authorized.
    831. 25-1631.01 Repealed. Laws 1979, LB 234, § 18.
    832. 25-1631.02 Repealed. Laws 1979, LB 234, § 18.
    833. 25-1631.03 Petit jury; examination by judge; excess jurors.
    834. 25-1632 Petit jury for subsequent periods; how drawn; how notified.
    835. 25-1632.01 Petit jury; special panel in criminal cases.
    836. 25-1633 Grand jury; how drawn; alternate jurors.
    837. 25-1633.01 Grand jury; summons.
    838. 25-1633.02 Repealed. Laws 1979, LB 234, § 18.
    839. 25-1633.03 Repealed. Laws 1979, LB 234, § 18.
    840. 25-1634 Petit jury; extra jurors to complete panel; talesmen.
    841. 25-1634.01 Petit jury; appearance; excused; postponement of service.
    842. 25-1634.02 Petit jury; additional jurors; how chosen.
    843. 25-1634.03 Petit jury; additional jurors; discharged; qualified as regular jurors.
    844. 25-1635 Jurors; disclosing names; when permissible; penalty; access to juror qualification forms.
    845. 25-1636 Jurors; competency; challenge.
    846. 25-1637 Juries; proceedings stayed; panel quashed; grounds; procedures; new list, order for.
    847. 25-1638 Repealed. Laws 1979, LB 234, § 18.
    848. 25-1639 Juror; serve; limitations.
    849. 25-1640 Employee; penalized due to jury service; prohibited; penalty.
    850. 25-1641 Petit jurors; how selected.
    851. 25-1642 Petit jury; special; how drawn.
    852. 25-1643 Petit jury; how notified.
    853. 25-1701 Repealed. Laws 2003, LB 19, § 7.
    854. 25-1702 Repealed. Laws 2003, LB 19, § 7.
    855. 25-1703 Repealed. Laws 2001, LB 489, § 15.
    856. 25-1704 Repealed. Laws 2001, LB 489, § 15.
    857. 25-1705 Security for costs; judgment against surety upon motion; satisfaction.
    858. 25-1706 Costs upon disclaimer.
    859. 25-1707 Costs on motions, continuances, and amendments.
    860. 25-1708 Plaintiff's costs; when allowed.
    861. 25-1709 New or additional security.
    862. 25-1710 Defendant's costs; when allowed.
    863. 25-1711 Award and taxation of costs; power of court to exercise discretion; frivolous appeals in jury cases; actual fees and expenses.
    864. 25-1712 Successive actions against joinable parties; limit to recovery by plaintiff.
    865. 25-1713 Sheriff's fees; summons issued out of county; return.
    866. 25-1714 Application for postponement of trial; condition.
    867. 25-1715 Costs on motion; limit; how taxed.
    868. 25-1716 Unpaid costs; lien; terminates.
    869. 25-1717 Bond for cost, appeal, supersedeas, injunction, or attachment; county and employees; exemption.
    870. 25-1801 Claims of four thousand dollars or less; recovery; costs; interest; attorney's fees.
    871. 25-1802 Award of fees and expenses against state; terms; defined.
    872. 25-1803 Award of fees and expenses against state; when authorized.
    873. 25-1804 Award of fees and expenses against state; conditions; application.
    874. 25-1805 Award of fees and expenses against state; additional to compensation.
    875. 25-1806 Award of fees and expenses against state; how paid.
    876. 25-1807 Award of fees and expenses against state; proceedings to which applicable.
    877. 25-1808 Actions between state agencies, boards, commissions, constitutional officers, and members of the Legislature; costs awarded; when.
    878. 25-1809 Legal Services Fund; created; use; transfers.
    879. 25-1901 District court; appellate jurisdiction; scope.
    880. 25-1902 Final order, defined.
    881. 25-1903 Petition in error; filing; summons; contents; service, when returnable; cause, when triable.
    882. 25-1904 Summons in error; praecipe; service; return; fees.
    883. 25-1905 Proceedings in error; transcript; abstracts of record not required in Supreme Court.
    884. 25-1906 Proceedings in error; transcript; how obtained.
    885. 25-1907 Proceedings in error; effect; supersedeas bond.
    886. 25-1908 Proceedings in error; stay of execution; supersedeas bond; approval; endorsement.
    887. 25-1909 Repealed. Laws 1974, LB 733, § 5.
    888. 25-1910 Repealed. Laws 1974, LB 733, § 5.
    889. 25-1911 Appellate jurisdiction; scope.
    890. 25-1912 Appeal; civil and criminal actions; procedure; notice of appeal; docketing fee; filing of transcript.
    891. 25-1912.01 Appellate review; motion for new trial; when required.
    892. 25-1913 Appealed causes; parties; how designated.
    893. 25-1914 Appeal; cost bond; cash deposit; appellate proceedings; dismissal.
    894. 25-1915 Appeal; unpaid costs itemized in order; payment.
    895. 25-1916 Appeal; supersedeas; cash or bond; effect; undertakings; amount, terms, and conditions; effect of having corporate surety.
    896. 25-1917 Appeal; substitute for undertaking.
    897. 25-1918 Appeal; bond; approval; by whom made.
    898. 25-1919 Appeal; briefs; rules; plain error.
    899. 25-1920 Appeal; injunctions; cause advanced, when.
    900. 25-1921 Repealed. Laws 1965, c. 126, § 1.
    901. 25-1922 Repealed. Laws 1965, c. 126, § 1.
    902. 25-1923 Appeal; original bill of exceptions; return to district court; disposition.
    903. 25-1924 Appeal; original bill of exceptions; return to appellate court if rehearing allowed.
    904. 25-1925 Appeal; suits in equity; trial de novo.
    905. 25-1926 Appeal; reversal of judgment; mandate.
    906. 25-1927 Original cause in Supreme Court; complete record upon final determination; waiver.
    907. 25-1928 Appeal; mistake of clerk; effect; procedure.
    908. 25-1929 Appeal; remittitur; effect.
    909. 25-1930 Civil cases; writs of error abolished.
    910. 25-1931 Time for commencement; persons under disability.
    911. 25-1932 Judgment prematurely rendered as error.
    912. 25-1933 Costs; how taxed.
    913. 25-1934 Money judgment; enforcement notwithstanding supersedeas; undertaking required.
    914. 25-1935 Opinion of appellate court; certified to clerk of district court.
    915. 25-1936 Order of remittitur deemed a final order.
    916. 25-1937 Appeals; general procedure.
    917. 25-2001 District court; power to vacate or modify judgments or orders.
    918. 25-2002 District court judgment; proceedings to vacate or modify; summons; waiver of error.
    919. 25-2003 Repealed. Laws 2000, LB 921, § 38.
    920. 25-2004 District court judgment; grounds for vacation or modification; determination.
    921. 25-2005 District court judgment; vacation; existence of valid claim or defense a prerequisite; preservation of liens upon modification.
    922. 25-2006 District court judgment; proceedings to vacate or modify; injunction.
    923. 25-2007 District court judgment; rendition before action regularly stood for trial; rights of defendant; no showing of valid defense required.
    924. 25-2008 District court judgment; proceedings to vacate or modify; statute of limitations.
    925. 25-2009 Supreme Court, Court of Appeals, and county court judgments; laws applicable.
    926. 25-2101 Action on bonds or insurance; by whom and how brought.
    927. 25-2102 Further action; authorized.
    928. 25-2103 Repealed. Laws 1987, LB 71, § 25.
    929. 25-2104 Repealed. Laws 1987, LB 71, § 25.
    930. 25-2105 Repealed. Laws 1987, LB 71, § 25.
    931. 25-2106 Repealed. Laws 1987, LB 71, § 25.
    932. 25-2107 Repealed. Laws 1987, LB 71, § 25.
    933. 25-2108 Repealed. Laws 1987, LB 71, § 25.
    934. 25-2109 Repealed. Laws 1987, LB 71, § 25.
    935. 25-2110 Repealed. Laws 1987, LB 71, § 25.
    936. 25-2111 Repealed. Laws 1987, LB 71, § 25.
    937. 25-2112 Repealed. Laws 1987, LB 71, § 25.
    938. 25-2113 Repealed. Laws 1987, LB 71, § 25.
    939. 25-2114 Repealed. Laws 1987, LB 71, § 25.
    940. 25-2115 Repealed. Laws 1987, LB 71, § 25.
    941. 25-2116 Repealed. Laws 1987, LB 71, § 25.
    942. 25-2117 Repealed. Laws 1987, LB 71, § 25.
    943. 25-2118 Repealed. Laws 1987, LB 71, § 25.
    944. 25-2119 Repealed. Laws 1987, LB 71, § 25.
    945. 25-2120 Repealed. Laws 1987, LB 71, § 25.
    946. 25-2121 Conduct constituting contempt; powers of court of record to punish.
    947. 25-2122 Punishment; procedure.
    948. 25-2123 Effect of punishment upon criminal liability.
    949. 25-2124 Ejectment; complaint; allegations.
    950. 25-2125 Ejectment; answer; contents.
    951. 25-2126 Ejectment; actions between tenants in common; complaint; allegations.
    952. 25-2127 Ejectment; plaintiff's right terminating while action pending; verdict; judgment.
    953. 25-2128 Ejectment; occupying claimants; rights.
    954. 25-2129 Waste; negligence in preventing; liability.
    955. 25-2130 Trespass; liability; damages; when recoverable.
    956. 25-2131 Trespass; taking timber for repair of public highways or bridges; liability.
    957. 25-2132 Waste or trespass; remainderman; reversioner; rights.
    958. 25-2133 Waste or trespass; heir; rights.
    959. 25-2134 Waste or trespass; purchaser on execution; rights.
    960. 25-2135 Waste or trespass; occupant; right to use lands or timber for repairs.
    961. 25-2136 Waste; occupant; right to use timber for repairs; limit.
    962. 25-2137 Complaint for foreclosure or satisfaction; where filed.
    963. 25-2138 Sale of premises; decree; power of court.
    964. 25-2139 Decree; power of court.
    965. 25-2140 Decree; effect upon right to recover for debt.
    966. 25-2141 Parties defendant; joinder.
    967. 25-2142 Complaint for foreclosure or satisfaction; allegations.
    968. 25-2143 Prior judgment at law; effect.
    969. 25-2144 Sale of premises; by whom made; liability and compensation of sheriff; postponement of sale; notice.
    970. 25-2145 Deed of conveyance; effect; estate conveyed.
    971. 25-2146 Sale; proceeds; how applied.
    972. 25-2147 Sale; proceeds; surplus; disposition.
    973. 25-2148 Payment by defendant of sums due; effect.
    974. 25-2149 Payment by defendant of sums due; stay; decree.
    975. 25-2150 Reference to sheriff; sale of premises in parcels; decree; effect.
    976. 25-2151 Default in payment of installments subsequent to decree; order of sale.
    977. 25-2152 Sale of entire property; when ordered.
    978. 25-2153 Sale of entire property; proceeds; disposition.
    979. 25-2154 Satisfaction or payment; certificate; delivery to register of deeds; duties of clerk of district court; fee of register of deeds.
    980. 25-2155 Satisfaction or payment; certificate; recording and indexing; duties of register of deeds.
    981. 25-2156 Writ of mandamus; to whom issued.
    982. 25-2157 Writ; when not issued.
    983. 25-2158 Alternative and peremptory writs.
    984. 25-2159 Peremptory writ; when allowed in first instance.
    985. 25-2160 Peremptory writ; motion; affidavit required; notice; order to show cause; actions involving irrigation water.
    986. 25-2161 Writ; endorsement of allowance; service; neglect to return; penalty.
    987. 25-2162 Alternative writ; answer.
    988. 25-2163 Peremptory writ; when issued; failure to answer, effect; pleading new matter, effect.
    989. 25-2164 Pleadings; trial.
    990. 25-2165 Judgment for plaintiff; damages; peremptory writ granted; costs and attorney's fees, authorized.
    991. 25-2166 Recovery of damages; effect upon right of action.
    992. 25-2167 Peremptory writ directed to public officials; imposition of fine; payment; effect.
    993. 25-2168 Right of private persons to bring action.
    994. 25-2169 Action by private person; costs.
    995. 25-2170 Complaint for partition; parties; allegations.
    996. 25-2170.01 Who may compel partition.
    997. 25-2171 Complaint; unknown owners or interests; allegations.
    998. 25-2172 Parties; lienholders.
    999. 25-2173 Liens upon undivided interests; lien for costs paramount.
    1000. 25-2174 Answer; contents.
    1001. 25-2175 Repealed. Laws 2002, LB 876, § 92.
    1002. 25-2176 Trial; costs.
    1003. 25-2177 Trial; proof.
    1004. 25-2178 Pleadings; when taken as true.
    1005. 25-2179 Judgment.
    1006. 25-2180 Referee or referees; appointment; duty.
    1007. 25-2181 Report of referees.
    1008. 25-2182 Referees; special allotments; when directed.
    1009. 25-2183 Sale; order; place held.
    1010. 25-2184 Referees; bond; conditions; further security.
    1011. 25-2185 Sale of property; notice; procedure.
    1012. 25-2186 Sale of property; report of referee.
    1013. 25-2187 Encumbrances; referee; appointment; report; appeal.
    1014. 25-2188 Encumbrances; duty of referee; notice of hearing.
    1015. 25-2189 Encumbrances; evidence before referee.
    1016. 25-2190 Encumbrances; payment with consent of owner.
    1017. 25-2191 Encumbrances; objection of owner to payment; procedure; notice.
    1018. 25-2192 Issue between owner and encumbrancer; order; effect.
    1019. 25-2193 Encumbrances; life estate or estate for years; settlement in gross; investment of proceeds.
    1020. 25-2194 Encumbrance proceedings; not to delay distribution of other shares.
    1021. 25-2195 Security for refund.
    1022. 25-2196 Order of conveyance; when made; purchase money security.
    1023. 25-2197 Conveyances; valid against subsequent purchasers and parties to action.
    1024. 25-2198 Repealed. Laws 1951, c. 73, § 1, p. 229.
    1025. 25-2199 Disapproval of sale; refund.
    1026. 25-21,100 Partition in kind; how made.
    1027. 25-21,101 Partition; report of referees; form; contents.
    1028. 25-21,102 Shares drawn by lot, when.
    1029. 25-21,103 Partition in part; remaining portion; sale.
    1030. 25-21,104 Partition; report of referees set aside, when; rereference.
    1031. 25-21,105 Confirmation of report of referees; judgment.
    1032. 25-21,106 Service of process; parties bound by proceedings.
    1033. 25-21,107 Judgment of partition; effect.
    1034. 25-21,108 Partition; proceedings; fees and costs; awarded, when; division.
    1035. 25-21,109 Default of owner; right of encumbrancers to appear.
    1036. 25-21,110 Holders of contingent interests; rights; joinder in action.
    1037. 25-21,111 Share of absent owner; how conserved.
    1038. 25-21,112 Scope of relief.
    1039. 25-21,113 Parties as defendants; how designated; effect of decree.
    1040. 25-21,114 Persons, defined.
    1041. 25-21,115 Adverse claims; liens of record; how pleaded.
    1042. 25-21,116 Unenforceable liens; title quieted without offer to redeem.
    1043. 25-21,117 Remaindermen; reversioners; rights and benefits.
    1044. 25-21,118 Service of process.
    1045. 25-21,119 Costs.
    1046. 25-21,120 Trial; appeal.
    1047. 25-21,121 Quo warranto; action; against whom brought.
    1048. 25-21,122 Quo warranto; action; by whom brought.
    1049. 25-21,123 Duty of Attorney General or county attorney to bring quo warranto action; when.
    1050. 25-21,124 Information; contents.
    1051. 25-21,125 Summons.
    1052. 25-21,126 Answer.
    1053. 25-21,127 Action by claimant against incumbent of office; information; trial.
    1054. 25-21,128 Action by claimant against incumbent of office; judgment for plaintiff; effect.
    1055. 25-21,129 Action by claimant against incumbent of office; judgment for plaintiff; delivery of books and papers.
    1056. 25-21,130 Action by claimant against incumbent of office; judgment for plaintiff; suit for damages by claimant.
    1057. 25-21,131 Action against several claimants of office or franchise.
    1058. 25-21,132 Ouster, judgment of; costs.
    1059. 25-21,133 Partial ouster, judgment of.
    1060. 25-21,134 Quo warranto; in whose name brought; costs.
    1061. 25-21,135 Judgment against pretended corporation; costs.
    1062. 25-21,136 Dissolved corporation; trustees; appointment.
    1063. 25-21,137 Dissolved corporation; trustees; bond.
    1064. 25-21,138 Dissolved corporation; trustees; bond, action upon.
    1065. 25-21,139 Dissolved corporation; trustees; duties.
    1066. 25-21,140 Dissolved corporation; books, papers, effects; delivery to trustees; enforcement.
    1067. 25-21,141 Dissolved corporation; trustees; inventory.
    1068. 25-21,142 Dissolved corporation; trustees; corporate claims and property; duty to sue; liability.
    1069. 25-21,143 Ouster of corporation; liability of officers for misconduct.
    1070. 25-21,144 Quo warranto; disobedience of court order; liability; penalty.
    1071. 25-21,145 Quo warranto; letters patent; annulment; grounds.
    1072. 25-21,146 Action by claimant against incumbent of office; condition precedent.
    1073. 25-21,147 Public officers; malfeasance; ouster.
    1074. 25-21,148 Public officers; malfeasance; action in Supreme Court; suspension of defendant; temporary appointment.
    1075. 25-21,149 Declaratory judgments; courts of record; jurisdiction.
    1076. 25-21,150 Rights of claimants; determination.
    1077. 25-21,151 Construction of contract; before or after breach.
    1078. 25-21,152 Fiduciary or interested person; action to declare rights.
    1079. 25-21,153 Sections; not limiting or restrictive.
    1080. 25-21,154 Declaratory judgments; when refused.
    1081. 25-21,155 Declaratory judgments; review.
    1082. 25-21,156 Pleadings; complaint; orders to show cause.
    1083. 25-21,157 Trial; issues of fact; how conducted.
    1084. 25-21,158 Costs.
    1085. 25-21,159 Parties; municipalities; Attorney General.
    1086. 25-21,160 Sections, how construed.
    1087. 25-21,161 Person, defined.
    1088. 25-21,162 Validity of sections.
    1089. 25-21,163 Interpretation and construction of sections to effectuate uniformity.
    1090. 25-21,164 Act, how cited.
    1091. 25-21,165 By whom brought; jurisdiction.
    1092. 25-21,166 Certification to federal court; stay of proceedings.
    1093. 25-21,167 Expedited trial and appeal; advancement.
    1094. 25-21,168 Repealed. Laws 1974, LB 354, § 316.
    1095. 25-21,169 Repealed. Laws 1974, LB 354, § 316.
    1096. 25-21,170 Repealed. Laws 1974, LB 354, § 316.
    1097. 25-21,171 Repealed. Laws 1974, LB 354, § 316.
    1098. 25-21,172 Repealed. Laws 1974, LB 354, § 316.
    1099. 25-21,173 Repealed. Laws 1974, LB 354, § 316.
    1100. 25-21,174 Repealed. Laws 1974, LB 354, § 316.
    1101. 25-21,175 Repealed. Laws 1974, LB 354, § 316.
    1102. 25-21,176 Repealed. Laws 1974, LB 354, § 316.
    1103. 25-21,177 Repealed. Laws 1974, LB 354, § 316.
    1104. 25-21,178 Repealed. Laws 1974, LB 354, § 316.
    1105. 25-21,179 Repealed. Laws 1974, LB 354, § 316.
    1106. 25-21,180 Terms, defined.
    1107. 25-21,181 Action based on strict liability in tort; brought against seller or lessor; when.
    1108. 25-21,182 Product liability action; based upon negligent or defective design, testing, or labeling; defense.
    1109. 25-21,183 Transferred to section 13-911.
    1110. 25-21,184 Railroad company; actions by employees against; negligence; assumption of risk.
    1111. 25-21,185 Actions accruing before February 8, 1992, for injuries to person or property; contributory negligence; comparative negligence.
    1112. 25-21,185.01 Repealed. Laws 1992, LB 262, § 12.
    1113. 25-21,185.02 Repealed. Laws 1992, LB 262, § 12.
    1114. 25-21,185.03 Repealed. Laws 1992, LB 262, § 12.
    1115. 25-21,185.04 Repealed. Laws 1992, LB 262, § 12.
    1116. 25-21,185.05 Repealed. Laws 1992, LB 262, § 12.
    1117. 25-21,185.06 Repealed. Laws 1992, LB 262, § 12.
    1118. 25-21,185.07 Civil actions to which contributory negligence is a defense; sections applicable.
    1119. 25-21,185.08 Civil actions to which contributory negligence is a defense; terms, defined.
    1120. 25-21,185.09 Civil actions to which contributory negligence is a defense; effect on recovery.
    1121. 25-21,185.10 Civil actions to which contributory negligence is a defense; multiple defendants; joint and several liability; when; allocation of liability.
    1122. 25-21,185.11 Civil actions to which contributory negligence is a defense; release, covenant not to sue, or similar agreement; effect.
    1123. 25-21,185.12 Civil actions to which contributory negligence is a defense; assumption of risk, defined; affirmative defense.
    1124. 25-21,186 Emergency care at scene of emergency; persons relieved of civil liability, when.
    1125. 25-21,187 Contract or agreement; indemnity provision; against public policy; unenforceable; when; construction project; violation of safety practice; liability.
    1126. 25-21,188 Alienation of affections; criminal conversation; actions barred.
    1127. 25-21,188.01 Check or instrument; wrongful refusal to endorse; liability; attorney's fees; awarded when.
    1128. 25-21,188.02 Volunteer in free clinic or other facility; immunity; when.
    1129. 25-21,189 Food; donations; limitations on liability.
    1130. 25-21,190 Not-for-profit organization, defined.
    1131. 25-21,191 Not-for-profit organization; director, officer, or trustee; immunity from civil liability.
    1132. 25-21,192 Not-for-profit organization; limitation on immunity.
    1133. 25-21,193 Not-for-profit organization; sections, how construed.
    1134. 25-21,194 Shoplifting; civil action authorized; conditions; limitations.
    1135. 25-21,195 Repealed. Laws 1990, LB 594, § 1.
    1136. 25-21,196 Repealed. Laws 1990, LB 594, § 1.
    1137. 25-21,197 Repealed. Laws 1990, LB 594, § 1.
    1138. 25-21,198 Repealed. Laws 1990, LB 594, § 1.
    1139. 25-21,199 Repealed. Laws 1990, LB 594, § 1.
    1140. 25-21,200 Contract; void and unenforceable; definition.
    1141. 25-21,201 Actions against state; jurisdiction; enumeration of claims.
    1142. 25-21,202 Actions against state; complaint; contents.
    1143. 25-21,203 Actions against state; summons; venue.
    1144. 25-21,204 Actions against state; judgment.
    1145. 25-21,205 Actions against state; adjudicated claims; certified statement to Legislature; when transmitted.
    1146. 25-21,206 Actions against state; where brought; procedure; transfer of actions.
    1147. 25-21,207 Actions by state; counterclaims.
    1148. 25-21,208 Actions to which state is a party; priority of trial; power to compel attendance of witnesses.
    1149. 25-21,209 Claims against state; fraud in statement or proof; penalty.
    1150. 25-21,210 Actions to which state is a party; fees; how paid and taxed.
    1151. 25-21,211 Judgment against state; certify to Director of Administrative Services; payment; insufficient funds.
    1152. 25-21,212 Judgment against claimant; transmitted to other counties; how collected.
    1153. 25-21,213 Appeals; procedure; notice of appeal by state; effect.
    1154. 25-21,214 Judgment; payment; effect.
    1155. 25-21,215 Change of venue; costs.
    1156. 25-21,216 Bonds for costs, appeal, supersedeas, injunction, attachment; state or its agencies not required to give.
    1157. 25-21,217 Judgment against state agency; liability of state.
    1158. 25-21,218 Bonds or insurance of Director of Banking and Finance as receiver of insolvent banks; premium; payment by state.
    1159. 25-21,219 Forcible entry and detainer; jurisdiction; exception.
    1160. 25-21,220 Forcible entry and detainer; against whom proceedings may be had; provisions not exclusive.
    1161. 25-21,221 Forcible entry and detainer; notice to leave premises; when and how served.
    1162. 25-21,222 Forcible entry and detainer; complaint; contents.
    1163. 25-21,223 Forcible entry and detainer; summons; service; trial date.
    1164. 25-21,224 Forcible entry and detainer; failure of defendant to appear; effect.
    1165. 25-21,225 Forcible entry and detainer; continuance for more than seven days; undertaking required.
    1166. 25-21,226 Forcible entry and detainer; trial without jury; judgment; restitution; costs.
    1167. 25-21,227 Forcible entry and detainer; trial by jury; verdict.
    1168. 25-21,228 Forcible entry and detainer; verdict; entry; judgment.
    1169. 25-21,229 Forcible entry and detainer; exceptions.
    1170. 25-21,230 Forcible entry and detainer; restitution; writ of execution; form.
    1171. 25-21,231 Forcible entry and detainer; writ of execution; service; writ of error stays proceedings.
    1172. 25-21,232 Forcible entry and detainer; judgment; future action not barred.
    1173. 25-21,233 Forcible entry and detainer; appeal; procedure.
    1174. 25-21,234 Forcible entry and detainer; appeal; operate as supersedeas; bond or surety required.
    1175. 25-21,235 Forcible entry and detainer; restitution notwithstanding appeal; bond; conditions.
    1176. 25-21,236 Release of animal; liability to owner.
    1177. 25-21,237 Repealed. Laws 2010, LB 216, § 1.
    1178. 25-21,238 Repealed. Laws 2010, LB 216, § 1.
    1179. 25-21,239 Leased trucks, truck-tractors, and trailers; liability of owner for damages.
    1180. 25-21,240 Claim or action for money damages; limitation.
    1181. 25-21,241 Legislative findings and declarations.
    1182. 25-21,242 Terms, defined.
    1183. 25-21,243 Defendant in action involving public petition and participation; action authorized; costs, attorney's fees, and damages; authorized; waiver; section, how construed.
    1184. 25-21,244 Action involving public petition and participation; damages; standard of proof; section, how construed.
    1185. 25-21,245 Action involving public petition and participation; motion to dismiss; when granted; duty to expedite.
    1186. 25-21,246 Action involving public petition and participation; motion for summary judgment; when granted.
    1187. 25-21,247 Health care payor or employee; immunity from criminal or civil liability; when.
    1188. 25-21,248 Terroristic threats; action authorized.
    1189. 25-21,249 Equine activities; legislative intent.
    1190. 25-21,250 Equine activities; terms, defined.
    1191. 25-21,251 Equine activities; liability and claims; limitations.
    1192. 25-21,252 Equine activities; applicability of other laws; liability enumerated.
    1193. 25-21,253 Equine activities; signs and contracts; requirements.
    1194. 25-21,254 Legislative intent.
    1195. 25-21,255 Terms, defined.
    1196. 25-21,256 Environmental audit; use as evidence prohibited; exceptions.
    1197. 25-21,257 Environmental audit; use as evidence; waiver.
    1198. 25-21,258 Environmental audit; use as evidence; exceptions.
    1199. 25-21,259 Environmental audit; admissible as evidence; when.
    1200. 25-21,260 Voluntary self-evaluation; disclose possible violations.
    1201. 25-21,261 Voluntary self-evaluation; disclosure; effect; exceptions.
    1202. 25-21,262 Regulatory authority; sections; how construed.
    1203. 25-21,263 Privileges; sections; how construed.
    1204. 25-21,264 Venue.
    1205. 25-21,265 Terms, defined.
    1206. 25-21,266 Damages; limitation.
    1207. 25-21,267 Class action against complying public defendant; prohibited.
    1208. 25-21,268 Class action against complying financial institution; restrictions.
    1209. 25-21,269 Applicability of sections.
    1210. 25-21,270 Change of name; authority of district court.
    1211. 25-21,271 Change of name; persons; procedure; clerk of the district court; duty.
    1212. 25-21,272 Change of name; town, village, or city; procedure.
    1213. 25-21,273 Change of name; effect; costs; how taxed.
    1214. 25-21,274 Motor vehicle collision with domestic animal; principles applied.
    1215. 25-21,275 Diversion of utility services; terms, defined.
    1216. 25-21,276 Diversion of utility services; civil actions; recovery authorized.
    1217. 25-21,277 Diversion of utility services; rebuttable presumption; when.
    1218. 25-21,278 Diversion of utility services; additional remedies.
    1219. 25-21,279 Action to seek injunction; authorized.
    1220. 25-21,280 School, educational service unit, early childhood education program, school nurse, medication aide, and nonmedical staff person; immunity; when.
    1221. 25-21,281 Tampering with anhydrous ammonia or anhydrous ammonia equipment; effect on liability.
    1222. 25-21,282 Immunity from liability; exceptions.
    1223. 25-21,283 Act, how cited.
    1224. 25-21,284 Terms, defined.
    1225. 25-21,285 Cumulative successor asbestos-related liabilities of successor corporation; limitations; applicability.
    1226. 25-21,286 Successor corporation; liability; limitation.
    1227. 25-21,287 Successor corporation; limitations; fair market value of total gross assets.
    1228. 25-21,288 Fair market value of total gross assets; adjustment.
    1229. 25-21,289 Act, how construed; applicability of act.
    1230. 25-21,290 Act, how cited.
    1231. 25-21,291 Terms, defined.
    1232. 25-21,292 Civil action authorized; recovery; attorney's fees and costs; injunctive relief.
    1233. 25-21,293 Time for bringing action; limitation.
    1234. 25-21,294 Use of pseudonym.
    1235. 25-21,295 Defendant; defenses not available.
    1236. 25-21,296 Attorney General; powers.
    1237. 25-2201 Process; style.
    1238. 25-2202 Service when sheriff is a party or is interested.
    1239. 25-2203 Process; special process server; return; appointed on motion; fees.
    1240. 25-2204 Clerks of courts; writs and orders; issuance; praecipes.
    1241. 25-2205 Papers; filing; preservation.
    1242. 25-2206 Papers; endorsement.
    1243. 25-2207 Record of service of summons; entry as evidence.
    1244. 25-2208 Judicial records; duty to keep.
    1245. 25-2209 Clerk of district court; required records enumerated; compilation and filing; methods authorized.
    1246. 25-2210 Clerk of district court; records; contents; appearance docket; general index; judgment record; transcripts from inferior courts; discharge of judgments.
    1247. 25-2211 Clerk of district court; trial docket; how kept.
    1248. 25-2211.01 Clerk of district court; trial docket; disposal; procedure.
    1249. 25-2211.02 Clerk of district court; depositions; disposal; procedure.
    1250. 25-2212 Repealed. Laws 1992, LB 1059, § 29.
    1251. 25-2213 Clerks of courts of record other than district courts; duties.
    1252. 25-2214 Clerks of courts; general powers and duties.
    1253. 25-2214.01 Clerk of district court; money or property received; powers and duties.
    1254. 25-2215 Transferred to section 23-1701.05.
    1255. 25-2216 Transferred to section 23-1701.06.
    1256. 25-2217 Transferred to section 23-1701.03.
    1257. 25-2218 Common law; applicability.
    1258. 25-2219 Deputies of ministerial officers; acts; effect.
    1259. 25-2220 Oaths and affirmations.
    1260. 25-2221 Time; how computed; offices may be closed, when; federal holiday schedule observed; exceptions.
    1261. 25-2222 Sureties; affidavit of qualifications; effect.
    1262. 25-2223 Sureties; justification; requirements.
    1263. 25-2224 Cases not provided for in this code; procedure.
    1264. 25-2225 Special statutory proceedings; procedure; how affected by this code.
    1265. 25-2226 Terms, defined.
    1266. 25-2227 Legal notices; week, defined.
    1267. 25-2228 Legal notices; how published.
    1268. 25-2229 Constables; contracts authorized.
    1269. 25-2230 Constables; bond; approval; amount.
    1270. 25-2231 Constables; authority; violation; penalty.
    1271. 25-2232 Sheriffs; general powers.
    1272. 25-2233 Sheriff; service of process.
    1273. 25-2234 Sheriff; return of process.
    1274. 25-2235 Sheriff; process; return; contents.
    1275. 25-2236 Constables and sheriffs; return of not found; when made.
    1276. 25-2237 Constables and sheriffs; take person into custody; procedure.
    1277. 25-2238 Sheriffs; money collected; accounting and payment.
    1278. 25-2239 Sheriffs; neglect of duty; penalty; how recovered.
    1279. 25-2240 Civil action; settlement; payment of costs.
    1280. 25-2301 Terms, defined.
    1281. 25-2301.01 Application; contents.
    1282. 25-2301.02 Application; objection; hearing; appeal.
    1283. 25-2302 Costs of action.
    1284. 25-2303 Process; costs; payment by county.
    1285. 25-2304 Witness; subpoena; process; fees; payment by county.
    1286. 25-2305 Appeal; printing of record; cost paid by county.
    1287. 25-2306 Transcripts; costs; payment by county.
    1288. 25-2307 Appellate briefs; costs; payment by county.
    1289. 25-2308 Repealed. Laws 1999, LB 689, § 17.
    1290. 25-2309 Satisfaction of costs; when.
    1291. 25-2310 Fraudulent practices; penalty.
    1292. 25-2401 Interpreters; public policy.
    1293. 25-2402 Terms, defined.
    1294. 25-2403 Interpreter; appointment.
    1295. 25-2404 Interpreters; qualifications.
    1296. 25-2405 Interpreters; oath.
    1297. 25-2406 Interpreters; fees and expenses.
    1298. 25-2407 Interpreters; qualifications.
    1299. 25-2501 Intent and purpose.
    1300. 25-2502 Terms, defined.
    1301. 25-2503 Agency; notice; contents.
    1302. 25-2504 Agency; hearing; where held; relocations; notice; hearings.
    1303. 25-2505 Public notice; public hearings; when not required; hearing by school district.
    1304. 25-2506 Sections, how construed.
    1305. 25-2601 Act, how cited.
    1306. 25-2602 Repealed. Laws 1997, LB 151, § 14.
    1307. 25-2602.01 Validity of arbitration agreement.
    1308. 25-2602.02 Contract; statement required.
    1309. 25-2603 Proceedings to compel or stay arbitration.
    1310. 25-2604 Appointment of arbitrators by court.
    1311. 25-2604.01 Arbitrators; disqualification.
    1312. 25-2605 Majority action by arbitrators.
    1313. 25-2606 Hearing.
    1314. 25-2607 Representation by attorney.
    1315. 25-2608 Witnesses, subpoenas, depositions.
    1316. 25-2609 Award.
    1317. 25-2610 Change of award by arbitrators.
    1318. 25-2611 Fees and expenses of arbitration.
    1319. 25-2612 Confirmation of award.
    1320. 25-2613 Vacating an award.
    1321. 25-2614 Modification or correction of award.
    1322. 25-2615 Judgment or decree on award.
    1323. 25-2616 Judgment roll, docketing.
    1324. 25-2617 Application to court; procedure.
    1325. 25-2618 District court; jurisdiction; act; how construed.
    1326. 25-2618.01 Small Claims Court; jurisdiction; when; transfer limited; appeal.
    1327. 25-2619 Venue.
    1328. 25-2620 Appeals.
    1329. 25-2621 Act not retroactive.
    1330. 25-2622 Act, how construed.
    1331. 25-2701 Rules of procedure; county court power to seal records.
    1332. 25-2702 Appearances; representation; attorney; qualification.
    1333. 25-2703 Cities and villages; prosecution of complaints; ordinances; file with court.
    1334. 25-2704 Summons; pleadings; time for filings; trial date; telephonic or videoconference hearing; authorized.
    1335. 25-2705 Trial by jury; demand for; exceptions; laws applicable.
    1336. 25-2706 County court; certify proceedings to district court; when; avoidance of county court jurisdiction; recovery of costs prohibited.
    1337. 25-2707 Garnishment; amount in excess of jurisdiction of county court; transfer to district court; proceedings certified.
    1338. 25-2708 Estates, guardianships, conservatorships, and trusts; real estate; certificate of pending proceeding; filing; county judge; duties.
    1339. 25-2709 Probate, adoption, trust jurisdiction; continuances.
    1340. 25-2710 Fees and costs; payment; effect.
    1341. 25-2711 Clerk; liable for fees; accounting; indigent person; waiver of fees, when.
    1342. 25-2712 Fees and costs; amount; transmit to State Treasurer; deposited in General Fund.
    1343. 25-2713 Clerk of county court; invest money received; rules.
    1344. 25-2714 Legacies, devises, distributive shares; unclaimed; payment to judge; effect.
    1345. 25-2715 Fees, legacies, devises, distributive shares; payment to claimant; record.
    1346. 25-2716 Unclaimed funds; judge; payment to successor.
    1347. 25-2717 Unclaimed funds; payment to State Treasurer; disposition.
    1348. 25-2718 Offer of judgment; effect; as evidence.
    1349. 25-2719 Judgments; notice; to whom sent.
    1350. 25-2720 Repealed. Laws 1998, LB 234, § 12.
    1351. 25-2720.01 Power to set aside, vacate, or modify judgments or orders.
    1352. 25-2721 Judgment; execution; lien on real estate; conditions.
    1353. 25-2722 Record; certification required; effect.
    1354. 25-2723 Probate books, enumeration.
    1355. 25-2724 Probate record; retention.
    1356. 25-2725 Fee book; contents.
    1357. 25-2726 General index; contents.
    1358. 25-2727 Index to wills deposited; contents.
    1359. 25-2728 Appeals; parties; applicability of sections.
    1360. 25-2729 Appeals; procedure.
    1361. 25-2730 Appeal; operate as supersedeas; when; bond; criminal cases; appeal; effect.
    1362. 25-2731 Appeal; transcript; contents; clerk; duties.
    1363. 25-2732 Testimony; preservation; bill of exceptions; cost.
    1364. 25-2733 Appeals; district court; review record; disposition; costs.
    1365. 25-2734 Repealed. Laws 2008, LB 1014, § 80.
    1366. 25-2735 Appeal; surety; liability.
    1367. 25-2736 Appeal; procedural dismissal; effect.
    1368. 25-2737 Appeal; appellant; pay costs; when.
    1369. 25-2738 Appeals; when not allowed.
    1370. 25-2739 Domestic relations judgment or final order; appeal.
    1371. 25-2740 Domestic relations matters; district, county, and separate juvenile courts; jurisdiction; procedure.
    1372. 25-2801 Designation.
    1373. 25-2802 Jurisdiction.
    1374. 25-2803 Parties; representation.
    1375. 25-2804 Actions; how commenced; fee; hearing; notice; setoff or counterclaim; limitations; default judgment; actions authorized.
    1376. 25-2805 Trial without jury; transfer to county court; fee.
    1377. 25-2806 Pleadings required; informal disposition; judgment.
    1378. 25-2807 Appeals.
    1379. 25-2901 Act, how cited.
    1380. 25-2902 Legislative findings.
    1381. 25-2903 Terms, defined.
    1382. 25-2904 Office of Dispute Resolution; established; director; qualifications; duties.
    1383. 25-2905 Advisory Council on Dispute Resolution; created; members.
    1384. 25-2906 Council; members; terms; vacancy; officers.
    1385. 25-2907 Council; powers and duties; members; expenses.
    1386. 25-2908 Director; duties.
    1387. 25-2909 Grants; application; contents; approved centers; reports.
    1388. 25-2910 Approved center; funding; fees.
    1389. 25-2911 Dispute resolution; types of cases; referral of cases.
    1390. 25-2912 Dispute resolution process; procedures.
    1391. 25-2913 Mediators; qualifications; compensation; powers and duties.
    1392. 25-2914 Confidentiality; exceptions.
    1393. 25-2915 Immunity; exceptions.
    1394. 25-2916 Agreement; contents; enforceability.
    1395. 25-2917 Tolling of statute of limitations; when.
    1396. 25-2918 Rules and regulations.
    1397. 25-2919 Application of act.
    1398. 25-2920 Director; report.
    1399. 25-2921 Dispute Resolution Cash Fund; created; use; investment.
    1400. 25-2922 Repealed. Laws 2009, LB 1, § 1.
    1401. 25-2923 Repealed. Laws 2009, LB 1, § 1.
    1402. 25-2924 Repealed. Laws 2009, LB 1, § 1.
    1403. 25-2925 Repealed. Laws 2009, LB 1, § 1.
    1404. 25-2926 Repealed. Laws 2009, LB 1, § 1.
    1405. 25-2927 Repealed. Laws 2009, LB 1, § 1.
    1406. 25-2928 Repealed. Laws 2009, LB 1, § 1.
    1407. 25-2929 Repealed. Laws 2009, LB 1, § 1.
    1408. 25-2930 Act, how cited.
    1409. 25-2931 Terms, defined.
    1410. 25-2932 Scope.
    1411. 25-2933 Privilege against disclosure; admissibility; discovery.
    1412. 25-2934 Waiver and preclusion of privilege.
    1413. 25-2935 Exceptions to privilege.
    1414. 25-2936 Prohibited mediator reports.
    1415. 25-2937 Confidentiality.
    1416. 25-2938 Mediator's disclosure of conflicts of interest; background.
    1417. 25-2939 Participation in mediation.
    1418. 25-2940 Relation to federal Electronic Signatures in Global and National Commerce Act.
    1419. 25-2941 Uniformity of application and construction.
    1420. 25-2942 Application to existing agreements or referrals.
    1421. 25-2943 Referral of civil cases to mediation or alternative dispute resolution; rules of practice.
    1422. 25-3001 Terms, defined.
    1423. 25-3002 Legal Aid and Services Fund; created; use; investment.
    1424. 25-3003 Commission on Public Advocacy; duties.
    1425. 25-3004 Service provider; receipt of funds; powers and duties.
    1426. 25-3005 Legislative intent.
    1427. 25-3006 Definitions.
    1428. 25-3007 Civil Legal Services Program; created; use of appropriations; Commission on Public Advocacy; duties.
    1429. 25-3008 Grant recipients; requirements; application; audit.
    1430. 25-3009 Civil Legal Services Fund; created; investment.
    1431. 25-3010 Civil Legal Services Fund; how funded.
    1432. 25-3101 Act, how cited.
    1433. 25-3102 Act; purpose; applicability.
    1434. 25-3103 Terms, defined.
    1435. 25-3104 Transfer of payment rights; court order; requirements.
    1436. 25-3105 Jurisdiction; hearing; notice.
    1437. 25-3106 Waiver prohibited; failure to meet conditions; effect.
    1438. 25-3107 Act; applicability.
    1439. 25-3201 Act, how cited.
    1440. 25-3202 Terms, defined.
    1441. 25-3203 Conflict of laws; limitation periods.
    1442. 25-3204 Rules applicable to computation of limitation period.
    1443. 25-3205 Unfairness.
    1444. 25-3206 Future claims.
    1445. 25-3207 Uniformity of application and construction.
    1446. 25-3301 Act, how cited.
    1447. 25-3302 Terms, defined.
    1448. 25-3303 Contracts for nonrecourse civil litigation funding; right to cancel; notice; statements required.
    1449. 25-3304 Civil litigation funding company; prohibited acts.
    1450. 25-3305 Assessment of fees; restrictions; calculations.
    1451. 25-3306 Effect of communication on privileges.
    1452. 25-3307 Civil litigation funding company; registration required; application; form; renewal.
    1453. 25-3308 Registration fee; renewal fee.
    1454. 25-3309 Secretary of State; issue certificate of registration or renewal of registration; refusal to issue; grounds; suspend, revoke, or refuse renewal; temporary certificate; submission of data; cont

Nebraska Codes
Chapter 25 COURTS; CIVIL PROCEDURE

25-101 Civil action.

25-101. Civil action.The distinctions between actions at law and suits in equity, and the forms 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. SourceR.S.1867, Code § 2, p. 394; Laws 1867, § 1, p. 71; R.S.1913, § 7560; C.S.1922, § 8503; C.S.1929, § 20-101; R.S.1943, § 25-101.Annotations1. Nature and scope2. Miscellaneous1. Nature and scopeDespite the fact that the traditional distinctions between law and equity have been abolished, those distinctions do control in determining an appellate court's standard of review. Waite v. A. S. Battiato Co., 238 Neb. 151, 469 N.W.2d 766 (1991).Application erroneously denominated as for coram nobis considered as petition for post conviction relief for reasons stated. State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975).This section is modified by special statute, section 25-1925. Larutan Corp. v. Magnolia Homes Manuf. Co., 190 Neb. 425, 209 N.W.2d 177 (1973).In this state there has been a complete merger of legal and equitable remedies. Wischmann v. Raikes, 168 Neb. 728, 97 N.W.2d 551 (1959).Distinction between legal and equitable rights has not been abolished. First Nat. Bank of Wayne v. Gross Real Estate Co., 162 Neb. 343, 75 N.W.2d 704 (1956).Eminent domain procedure act was not unconstitutional as being amendatory of this section. Jensen v. Omaha Public Power Dist., 159 Neb. 277, 66 N.W.2d 591 (1954).Code of civil procedure, as a statute complete in all its parts, should be so construed as to make all of its parts harmonize with each other and render them consistent with its general scope and object. State ex rel. Johnson v. Consumers Public Power Dist., 142 Neb. 114, 5 N.W.2d 202 (1942).Code of civil procedure expressly abolished all forms of actions and suits theretofore existing, and substituted one form of action called a civil action. In re Guardianship of Warner, 137 Neb. 25, 288 N.W. 39 (1939).The character of the cause of action, as shown by the allegations of the petition, determines whether a particular action is at law or equity, unaffected by the conclusions of the pleader. Mills v. Heckendorn, 135 Neb. 294, 281 N.W. 49 (1938).Abolition of common-law names and forms of action has not changed the essential character of judicial remedies. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).To review errors of law occurring upon the trial of an equity case, a motion for new trial is necessary. Danbom v. Danbom, 132 Neb. 858, 273 N.W. 502 (1937).Both legal and equitable principles may be enforced in the same action, according to the facts. City of Beatrice v. Gage County, 130 Neb. 850, 266 N.W. 777 (1936).To maintain a civil action, it is not essential that the action be given any particular name. Rhoads v. Columbia Fire Underwriters Agency, 128 Neb. 710, 260 N.W. 174 (1935).Provisions of civil code not only abolish bills of equity with discovery as incident thereto, but prevent incorporation in petition and answer of essential elements on which discovery as it formerly existed, was based. Marshall v. Rowe, 126 Neb. 817, 254 N.W. 480 (1934).The distinction between actions at law and suits in equity is abolished. State Bank of Omaha v. Todd, 122 Neb. 557, 240 N.W. 754 (1932).Contract between husband and wife may be enforced in civil action. Stenger Benevolent Assn. v. Stenger, 54 Neb. 427, 74 N.W. 846 (1898).Abolishing distinctions between law and equity does not deprive the court, while sitting as the court of equity, to submit disputed question of fact to a jury. Alter v. Bank of Stockham, 53 Neb. 223, 73 N.W. 667 (1897).2. MiscellaneousCross-petitions are not limited to strictly equitable actions. Rogers v. Western Electric Co., 179 Neb. 359, 138 N.W.2d 423 (1965).Rules of law and doctrines of equity may be enforced in one form of action. Schreiner v. Witte, 143 Neb. 109, 8 N.W.2d 831 (1943).A court of equity, having jurisdiction at commencement of suit, will retain it, where issues presented are in nature of an accounting, and are so numerous and distinct, and evidence to sustain them so variant, technical and voluminous that jury is incompetent to deal with them intelligently. Parsons Construction Co. v. Gifford, 129 Neb. 617, 262 N.W. 508 (1935).Procedure in workmen's compensation case was equivalent to "civil action." Keil v. Farmers' Irr. Dist., 119 Neb. 503, 229 N.W. 898 (1930).There is no distinction as to right of plaintiff to judgment on default, without making proof, whether the cause of action is legal or equitable. Weir v. Woodruff, 107 Neb. 585, 186 N.W. 988 (1922).This is only one form of action, in which legal or equitable principles, either or both, may be enforced according to the facts. Kazebeer v. Nunemaker, 82 Neb. 732, 118 N.W. 646 (1908); State ex rel. Horton v. Dickinson, 63 Neb. 869, 89 N.W. 431 (1902); Hopkins v. Washington County, 56 Neb. 596, 77 N.W. 53 (1898).Statute of limitations was intended to apply to all forms of the civil action. Boevink v. Christiaanse, 69 Neb. 256, 95 N.W. 652 (1903).

25-102 Parties; how designated.

25-102. Parties; how designated.In all civil actions, the complaining party shall be known as the plaintiff and the adverse party as the defendant. SourceR.S.1867, Code § 3, p. 394; R.S.1913, § 7561; C.S.1922, § 8504; C.S.1929, § 20-102; R.S.1943, § 25-102.AnnotationsDesignation of party appealing as plaintiff in eminent domain proceeding was not prevented by this section. Jensen v. Omaha Public Power Dist., 159 Neb. 277, 66 N.W.2d 591 (1954).

25-103 Feigned issues prohibited; issue not plead; tried, when.

25-103. Feigned issues prohibited; issue not plead; tried, when.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. SourceR.S.1867, Code § 4, p. 394; R.S.1913, § 7562; C.S.1922, § 8505; C.S.1929, § 20-103; R.S.1943, § 25-103.AnnotationsCommon law remedies are still in force except as abolished by statute. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).Jury is not allowed in quo warranto. State ex rel. Broatch v. Moores, 56 Neb. 1, 76 N.W. 530 (1898).Jury is not allowed as of right in equity cases generally, though special facts may be submitted. Alter v. Bank of Stockham, 53 Neb. 223, 73 N.W. 667 (1897); Harral & Uhl v. Gray, 10 Neb. 186, 4 N.W. 1040 (1880).Jury is not allowed in contempt cases. Gandy v. State, 13 Neb. 445, 14 N.W. 143 (1882).Fictitious issues abolished. Cropsey v. Wiggenhorn, 3 Neb. 108 (1873).

25-201 Civil actions; when commenced.

25-201. Civil actions; when commenced.A civil action shall be commenced only within the time prescribed in this chapter, after the cause of action has accrued. Notwithstanding any other provision in this chapter, when an action has been stayed by any court of competent jurisdiction or by statute, such action shall be commenced within the longer of (1) the time prescribed in this chapter, after the cause of action has accrued, or (2) one year after the date the stay is no longer in effect. SourceR.S.1867, Code § 5, p. 395; R.S.1913, § 7563; C.S.1922, § 8506; C.S.1929, § 20-201; R.S.1943, § 25-201; Laws 2001, LB 48, § 1. Annotations1. When action is commenced2. When cause of action accrues3. Limitation; applicability4. Limitation; defense5. Miscellaneous1. When action is commencedAn action is deemed commenced on the date of the summons which is properly served on the defendant. George P. Rose Sodding & Grading Co. v. Dennis, 195 Neb. 221, 237 N.W.2d 418 (1976).A civil action is commenced by filing a petition and causing a summons to be issued thereon. Gorgen v. County of Nemaha, 174 Neb. 588, 118 N.W.2d 758 (1962).Action is deemed commenced upon filing of first petition, where cause of action is not changed in amended petition. Davis v. Manning, 98 Neb. 707, 154 N.W. 239 (1915), vacating former judgment 97 Neb. 658, 150 N.W. 1019 (1915).2. When cause of action accruesCause of action accrues when the aggrieved party has the right to institute and maintain suit. Weiss v. Weiss, 179 Neb. 714, 140 N.W.2d 15 (1966).A civil action to recover a statutory penalty must be commenced within a year after the cause of action accrued in favor of plaintiff. Hoffman v. Geiger, 135 Neb. 349, 281 N.W. 625 (1938).A cause of action against a bank director participating in making of an excessive loan is complete the moment the loan is made, and statute of limitations begins to run, and action is barred after four years in absence of fraud or concealment. Department of Banking v. McMullen, 134 Neb. 338, 278 N.W. 551 (1938).Statute of limitations on right to recover illegally imposed taxes runs from time of payment of tax and not from time illegality of tax is judicially determined. Monteith v. Alpha High School Dist. of Chase County, 125 Neb. 665, 251 N.W. 661 (1933).Statute of limitations does not run on claims against state until legislative leave to sue has been given. Commonwealth Power Co. v. State, 104 Neb. 439, 177 N.W. 745 (1920).When cause of action accrues stated. City of Omaha v. Redick, 61 Neb. 163, 85 N.W. 46 (1901).3. Limitation; applicabilityAn oral promise by which defendant was paid some undisclosed amount in settlement of claim for damages based on loss of securities through conspiracy and fraud, which was not a promise made as a part of the alleged fraudulent transaction, did not operate to toll statute of limitations. Hollenbeck v. Guardian Nat. Life Ins. Co., 144 Neb. 684, 14 N.W.2d 330 (1944).An action for relief upon the ground of fraud must be commenced within four years after the discovery of the facts constituting the fraud, or of facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to discovery. Burchmore v. Byllesby & Co., 140 Neb. 603, 1 N.W.2d 327 (1941).Where Legislature has created a new right and prescribed a special statute of limitations, the general statute of limitations is not applicable. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139 (1938).Where trustee of trust fund, who was also president and managing officer of bank, invested part of trust funds in worthless notes belonging to bank in 1923, but concealed the fact from the county court and the cestui que trust until 1930, running of statute was tolled. First Trust Co. of Lincoln v. Exchange Bank, 126 Neb. 856, 254 N.W. 569 (1934).Statute does not run against claims depending upon the result of pending litigation. First Nat. Bank of Plattsmouth v. Gibson, 74 Neb. 232, 104 N.W. 174 (1905), reversed on rehearing 74 Neb. 236, 105 N.W. 1081 (1906).General law as to limitations of actions is not applicable to revivor of dormant judgment. Bankers Life Ins. Co. v. Robbins, 59 Neb. 170, 80 N.W. 484 (1899).Set-off was barred by statute of limitations. Baker Ice Machine Co. v. Hebert, 76 F.2d 73 (8th Cir. 1935).4. Limitation; defenseStatute of limitations is an affirmative defense and must be pleaded. Central Bridge & Constr. Co. v. Chicago & N. W. Ry. Co., 128 Neb. 779, 260 N.W. 172 (1935).Statute of limitations does not raise a presumption of payment but is a statute of repose. Torgeson v. Department of Trade and Commerce, 127 Neb. 49, 254 N.W. 740 (1934).One asking affirmative equitable relief is required to do equity and may not plead statute of limitations as defense to such requirement. Wiseman v. Guernsey, 107 Neb. 647, 187 N.W. 55 (1922).Ordinarily third parties may not plead it as defense. Plummer, Perry & Co. v. Rohman, 61 Neb. 61, 84 N.W. 600 (1900).Statute of limitations must be pleaded or is considered waived. Hobson v. Cummins, 57 Neb. 611, 78 N.W. 295 (1899).Statute applies to facts or rights pleaded as defense, counterclaim or cross action. Parker v. Kuhn, 21 Neb. 413, 32 N.W. 74 (1887).5. MiscellaneousThe fact that a claim against an heir is barred by the statute of limitations does not prevent the application of the doctrine of retainer. Fischer v. Wilhelm, 139 Neb. 583, 298 N.W. 126 (1941), opinion partially vacated on rehearing, 140 Neb. 448, 300 N.W. 350 (1941).Plaintiff may not amend a cause of action barred by statute of limitations by substituting another and different cause not so barred. Thurston County v. Farley, 128 Neb. 756, 260 N.W. 397 (1935).If petition shows on its face that it is barred by statute of limitations but pleads further facts in avoidance thereof, which are denied by defendant who also pleads affirmatively the statute, plaintiff cannot recover without first establishing facts alleged in avoidance. Baxter v. National Mtg. Loan Co., 128 Neb. 537, 259 N.W. 630 (1935).Where a necessary party defendant is not made defendant because statute of limitations has run on claim against him, action should be dismissed. Dempster v. Ashton, 125 Neb. 535, 250 N.W. 917 (1933).Contracts providing different periods are void. Miller v. State Ins. Co. of Des Moines, 54 Neb. 121, 74 N.W. 416 (1898).Where statute confers and limits duration of right, it also limits the remedy. Goodwin v. Cunningham, 54 Neb. 11, 74 N.W. 315 (1898).Defendant may present question of statute of limitations by motion to dismiss or demurrer if petition shows on its face that action is barred. Harrop v. United States, 10 F.Supp. 753 (D. Neb. 1935).

25-201.01 Civil actions; savings clause; conditions.

25-201.01. Civil actions; savings clause; conditions.(1) If an action is commenced within the time prescribed by the applicable statute of limitations but the plaintiff fails in the action for a reason other than a reason specified in subsection (2) of this section and the applicable statute of limitations would prevent the plaintiff from commencing a new action, the plaintiff, or his or her representatives if the plaintiff has died and the cause of action survived, may commence a new action within the period specified in subsection (3) of this section.(2) A new action may not be commenced in accordance with subsection (1) of this section when the original action failed (a) on the merits of the action, (b) as a result of voluntary dismissal by the plaintiff for a reason other than loss of diversity jurisdiction in a federal court, (c) as a result of the plaintiff's failure to serve a defendant within the time prescribed in section 25-217, or (d) as a result of any other inaction on the part of the plaintiff where the burden of initiating an action was on the plaintiff.(3) A new action may be commenced in accordance with subsection (1) of this section within a period equal to the lesser of (a) six months after the failure of the action or (b) a period after the failure of the action equal to the period of the applicable statute of limitations of the original action. SourceLaws 2000, LB 55, § 1. AnnotationsThe dismissal of a plaintiff's first action for failure to abide by the progression standards is a dismissal because of a lack of action under this section. Zitterkopf v. Maldonado, 273 Neb. 145, 727 N.W.2d 696 (2007).This section includes a savings clause for actions filed in federal court that are dismissed because of the loss of diversity jurisdiction. Brodine v. Blue Cross Blue Shield, 272 Neb. 713, 724 N.W.2d 321 (2006).

25-201.02 Amendment of pleading; effect.

25-201.02. Amendment of pleading; effect.(1) An amendment of a pleading that does not change the party or the name of the party against whom the claim is asserted relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.(2) If the amendment changes the party or the name of the party against whom a claim is asserted, the amendment relates back to the date of the original pleading if (a) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, and (b) within the period provided for commencing an action the party against whom the claim is asserted by the amended pleading (i) received notice of the action such that the party will not be prejudiced in maintaining a defense on the merits and (ii) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. SourceLaws 2002, LB 876, § 2.

25-202 Actions for the recovery of title or possession of real estate or foreclosure of mortgages or deeds of trust as mortgages.

25-202. Actions for the recovery of title or possession of real estate or foreclosure of mortgages or deeds of trust as mortgages.(1) An action for the recovery of the title or possession of lands, tenements, or hereditaments, or for the foreclosure of mortgages or the foreclosure of deeds of trust as mortgages thereon, can only be brought within ten years after the cause of action accrues. No limitation shall apply to the time within which any county, city, town, village, other municipal corporation, public power and irrigation district, public power district, public irrigation district organized under Chapter 70, article 6, irrigation district organized under Chapter 46, article 1, or natural resources district may begin an action for the recovery of the title or possession of any public road, street, or alley, other public or political subdivision grounds or lands, or city or town lots.(2) For the purposes of this section as relates only to the rights and interests of subsequent purchasers and encumbrancers for value:(a) The cause of action for foreclosure of the mortgage or foreclosure of the deed of trust as a mortgage accrues on the last date of maturity of the debt or other obligation secured by the mortgage or deed of trust as the date is stated in or is ascertainable from the filed record of the mortgage or deed of trust or the filed record of an extension of the mortgage or deed of trust;(b) If no date of maturity is stated or is ascertainable from the filed mortgage or deed of trust or the filed extension, the cause of action for foreclosure of the mortgage or foreclosure of the deed of trust as a mortgage accrues no later than thirty years after the date of the mortgage or deed of trust; or(c) If the mortgage creditor files an affidavit to the effect that the mortgage or deed of trust is unpaid and is still a valid lien, the affidavit is filed before the cause of action is barred under this section, and the affidavit is filed for record in the office of the register of deeds, the cause of action is not barred until ten years after the date the affidavit is filed. The period of ten years shall not be extended by nonresidence, legal disability, partial payment, acknowledgment of debt, or promise to pay. SourceR.S.1867, Code § 6, p. 395; Laws 1869, § 1, p. 67; Laws 1899, c. 79, § 6, p. 335; R.S.1913, § 7564; C.S.1922, § 8507; Laws 1925, c. 64, § 1, p. 220; C.S.1929, § 20-202; Laws 1941, c. 35, § 1, p. 145; C.S.Supp.,1941, § 20-202; R.S.1943, § 25-202; Laws 1977, LB 208, § 1; Laws 1995, LB 297, § 1; Laws 2008, LB851, § 18. Operative Date: March 20, 2008 Cross ReferencesPart payment shall not be applicable as against subsequent encumbrancers and purchasers for value, see section 25-216. Annotations1. Definitions2. Limitation as to adverse possession3. Limitation as to remainderman4. Adverse possession not applicable5. When cause of action accrues6. Tolling of statute7. Inverse condemnation8. Miscellaneous1. Definitions"Subsequent purchaser for value" is one acquiring title after statute has run against prior encumbrance shown on record. Purchaser who assumed mortgage and paid interest thereon could not defend against mortgage as "subsequent purchaser for value," on ground of mortgagee's failure to refile mortgage. Tynon v. Bliss, 121 Neb. 80, 236 N.W. 184 (1931)."Subsequent encumbrancer" hereunder is one who acquires his encumbrance after the statute has run against prior recorded encumbrance. Bank acquiring mortgage expressly subject to prior mortgage against which statute has not yet run did not thereafter acquire priority as "subsequent encumbrancer." Bliss v. Redding, 121 Neb. 69, 236 N.W. 181 (1931).2. Limitation as to adverse possessionAn action to recover possession of real property from a tenant who remains in possession without the landlord's consent after a lease has expired or been terminated under section 76-1437 is an action for the possession of real property and is therefore subject to the 10-year statute of limitations for the possession of real property as provided for in this section. Blankenau v. Landess, 261 Neb. 906, 626 N.W.2d 588 (2001).One who claims title by adverse possession must prove by a preponderance of the evidence that he or she has been in actual, continuous, exclusive, notorious, and adverse possession under a claim of ownership for the full 10-year period mandated by this section. A claim in the nature of a life estate is not a "claim of ownership" within the meaning of the adverse possession doctrine. Lewis v. Poduska, 240 Neb. 312, 481 N.W.2d 898 (1992).Where the evidence shows that irrigation rights have not been used for more than ten years, a water appropriator loses his rights, independent of any cancellation proceeding. Northport Irr. Dist. v. Jess, 215 Neb. 152, 337 N.W.2d 733 (1983).The ten-year period necessary to bar an action to recover land applies in an action seeking to establish a prescriptive easement. Sturm v. Mau, 209 Neb. 865, 312 N.W.2d 272 (1981).Adverse possession is founded upon the intent with which an occupant held possession, and can best be determined by his acts. The intent, even though mistaken, is sufficient as where claimant occupies to the wrong boundary line believing it to be the true line, and even though he does not intend to claim more than that described in the deed. Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981).In determining the rights of an adverse owner, the entry and possession of his tenant, expressly authorized to act, is the entry and possession of such owner. Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981).Where a fence is constructed as a boundary line, although it is not the actual boundary line, and parties claim ownership of land up to the fence for the uninterrupted statutory period, parties gain title to such land by adverse possession. Conkey v. Anderson Farms, Inc., 205 Neb. 708, 289 N.W.2d 541 (1980); McCain v. Cook, 184 Neb. 147, 165 N.W.2d 734 (1969).Possession by permission of the owner cannot ripen into adverse possession until after such change of position has been brought home to the adverse party. Imperial Service Corp. v. Phipps, 205 Neb. 622, 288 N.W.2d 749 (1980).A person claiming title by adverse possession must occupy and possess the land adversely to the record owners with the requisite intent and purpose of asserting ownership. Rentschler v. Walnofer, 203 Neb. 84, 277 N.W.2d 548 (1979).One who claims title by adverse possession must prove by a preponderance of the evidence that he has been in actual, continuous, exclusive, notorious, and adverse possession under claim of ownership for a full period of ten years. Rentschler v. Walnofer, 203 Neb. 84, 277 N.W.2d 548 (1979).Title may not be granted or quieted on the theory of adverse possession in the absence of proof of exclusive possession for a purpose to which the land is adapted for the statutory period of 10 years. Rentschler v. Walnofer, 203 Neb. 84, 277 N.W.2d 548 (1979).Where a person claims title to land by adverse possession by the previous occupants, the claimant must prove previous occupants had a hostile intent to occupy land that was not theirs. Barnes v. Milligan, 200 Neb. 450, 264 N.W.2d 186 (1978).Section 76-701 et seq., R.R.S.1943, provides no specific statute of limitations; therefore the ten-year period in section 25-202, R.R.S.1943, applies in inverse condemnation proceedings. Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (1977).One who claims title by adverse possession must prove by a preponderance of the evidence that he has been in actual, continuous, exclusive, notorious adverse possession under claim of ownership for full period of ten years. Campbell v. Buckler, 192 Neb. 336, 220 N.W.2d 248 (1974).A party, in order to establish title to real estate by adverse possession, must prove by a preponderance of the evidence that he has been in actual, continuous, notorious, and adverse possession thereof under claim of ownership for the full period required by the statute. Shirk v. Schmunk, 192 Neb. 25, 218 N.W.2d 433 (1974).An easement by prescription for discharge of waste irrigation waters into a natural depression through land of another cannot be acquired until it has been exercised without material change under a claim of right for ten years. Peters v. Langrehr, 188 Neb. 480, 197 N.W.2d 698 (1972).Statutory period for the establishment of title to real estate by adverse possession is ten years. Mentzer v. Dolen, 178 Neb. 42, 131 N.W.2d 671 (1964); Fitch v. Slama, 177 Neb. 96, 128 N.W.2d 377 (1964); Beebe v. Reichert, 172 Neb. 172, 108 N.W.2d 804 (1961); Jones v. Schmidt, 170 Neb. 351, 102 N.W.2d 640 (1960).Water rights may be lost by nonuser for the period of statutory limitations relating to real estate. State v. Nielsen, 163 Neb. 372, 79 N.W.2d 721 (1956).One who has taken possession of real estate as tenant of another cannot hold the real estate adversely to his lessor until he surrenders possession, or, by some unequivocal act, notifies the landlord that he no longer holds under the lease. Kennedy v. Gottschalk, 138 Neb. 842, 295 N.W. 813 (1941).Where a fence is constructed as a boundary between two pieces of property, and where the parties claim ownership to the fence for a full ten year period, and are not interrupted in their possession or control during such period, they will, by adverse possession, gain title to such land as may have been improperly inclosed with their own. Ohme v. Thomas, 134 Neb. 727, 279 N.W. 480 (1938).City discharging sewage into creek for a period of ten years in an adverse manner may acquire an easement for that purpose. Hall v. City of Friend, 134 Neb. 652, 279 N.W. 346 (1938).Where a boundary, supposed to be the true line established by the government survey, is acquiesced in by the adjoining owners for more than ten years, it is conclusive of the location. Romine v. West, 134 Neb. 274, 278 N.W. 490 (1938).Plea of title to land by adverse possession, to be effective, must be proved by actual, open, exclusive, and continuous possession under claim of ownership for the full statutory period of ten years. Ellsworth Corporation v. Stratbucker, 134 Neb. 246, 278 N.W. 381 (1938).Where title to land has been quieted in plaintiff as against claims of defendant, and defendant does not re-enter after such decree, the statute of limitations does not begin to run in favor of defendant and he cannot assert adverse possession until he brings express notice to plaintiff or his vendees that he claims adversely to plaintiff. Lennon v. Kearney, 132 Neb. 180, 271 N.W. 351 (1937).Where mortgage contains clause accelerating due date or maturity on default in payment of interest, and mortgagee elects to declare mortgage due under such option, statute of limitations begins to run from date of such election. Hatch v. Ely, 131 Neb. 882, 270 N.W. 480 (1936).An easement acquired by prescription is limited in extent to adverse use during the ten year period. Onstott v. Airdale Ranch & Cattle Co., 129 Neb. 54, 260 N.W. 556 (1935).Elements of adverse possession discussed. DeWulf v. DeWulf, 104 Neb. 105, 175 N.W. 884 (1919); Peterson v. Kouty, 103 Neb. 321, 171 N.W. 905 (1919); Armstrong v. Johnson, 97 Neb. 119, 149 N.W. 361 (1914); Jankee v. Robb, 97 Neb. 118, 149 N.W. 362 (1914); Prugh v. Searcy, 97 Neb. 116, 149 N.W. 362 (1914); Dringman v. Keith, 93 Neb. 180, 139 N.W. 1044 (1913); Delatour v. Wendt, 93 Neb. 175, 139 N.W. 1023 (1913); Ryan v. City of Lincoln, 85 Neb. 539, 123 N.W. 1021 (1909); Hull v. Chicago, B. & Q. Ry. Co., 21 Neb. 371, 32 N.W. 162 (1887); Haywood v. Thomas, 17 Neb. 237, 22 N.W. 460 (1885); Gregory v. Lincoln, 13 Neb. 352, 14 N.W. 423 (1882); Horbach v. Miller, 4 Neb. 31 (1875).Tract contiguous to right-of-way acquired by railroad by adverse possession. Ferber v. McQuillen, 99 Neb. 280, 156 N.W. 506 (1916).Right by adverse possession in village street upheld where acquired before amendment of 1899 to this section. Torbitt v. Village of Bennett, 98 Neb. 129, 152 N.W. 301 (1915).Statute runs against bill to declare deed absolute in form a mortgage, in favor of grantee in possession, from time such possession becomes adverse to grantor's title. Minick v. Reichenbach, 97 Neb. 629, 150 N.W. 1001 (1915); Stall v. Jones, 47 Neb. 706, 66 N.W. 653 (1896).There must be adverse public user of defined track or way for period sufficient to bar action to recover land. Smith v. Nofsinger, 86 Neb. 834, 126 N.W. 659 (1910); Nelson v. Sneed, 76 Neb. 201, 107 N.W. 255 (1906).Notorious and exclusive possession without right constitutes a disseizin. Fitzgerald v. Brewster, 31 Neb. 51, 47 N.W. 475 (1890).3. Limitation as to remaindermanAn action for recovery of title to, or possession of lands, can only be brought within ten years after the cause of action has accrued, and a remainderman is not required to bring action to quiet title in order to protect his remainder estate from a claim of adverse possession by a grantee of the life estate in possession under the grant. Maxwell v. Hamel, 138 Neb. 49, 292 N.W. 38 (1940).When statute runs against remaindermen stated. Anderson v. Miller, 103 Neb. 549, 172 N.W. 688 (1919); Mohr v. Harder, 103 Neb. 545, 172 N.W. 753 (1919); Criswell v. Criswell, 101 Neb. 349, 163 N.W. 302 (1917).Statute does not always run against remainderman until death of owner of life estate. Criswell v. Criswell, 101 Neb. 349, 163 N.W. 302 (1917); Bohrer v. Davis, 94 Neb. 367, 143 N.W. 209 (1913); McFarland v. Flack, 87 Neb. 452, 127 N.W. 375 (1910).4. Adverse possession not applicableActions to recover annual payments provided for by indenture granting perpetual easement for flow of water and to enforce equitable lien growing out of the indenture are not controlled by this section. Frye v. Sibbitt, 145 Neb. 600, 17 N.W.2d 617 (1945).A fee simple title holder under an unrecorded deed does not forfeit title by failure to assert it affirmatively for ten years or any other period. Hadley v. Platte Valley Cattle Co., 143 Neb. 482, 10 N.W.2d 249 (1943).Action for damages against city for changing grade of street, held not barred by statute of limitations. Quivey v. City of Mitchell, 133 Neb. 727, 277 N.W. 50 (1938).Exception as to municipalities does not extend to irrigation districts. Central Irr. Dist. v. Gering Irr. Dist., 122 Neb. 199, 240 N.W. 289 (1932).Railroad right-of-way is not divested by adverse possession so long as railroad operates over same. Edholm v. Missouri Pac. R. R. Corp., 114 Neb. 845, 211 N.W. 206 (1926); McLucas v. St. Joseph & G. I. Ry. Co., 67 Neb. 603, 93 N.W. 928 (1903), former judgment adhered to 67 Neb. 612, 97 N.W. 312 (1903).Public easement in land used for highway cannot be divested by adverse possession; width of highway acquired by public user is question of fact determined by character and extent of use. Donovan v. Union P. R. Co., 104 Neb. 364, 177 N.W. 159 (1920).Statute does not run against action to remove cloud on title while landowner is in exclusive possession. Essex v. Smith, 97 Neb. 649, 150 N.W. 1022 (1915).Where party was placed in possession of land under agreement that he should hold possession until settlement was made, statute would not run on either action for land or claim for money. Tillson v. Holloway, 94 Neb. 635, 143 N.W. 939 (1913).Action to foreclose mortgage may be commenced within ten years even though action on note has become barred. Campbell v. Upton, 56 Neb. 385, 76 N.W. 910 (1898).5. When cause of action accruesThe statute of limitations does not begin to run in case of a resulting trust until trustee clearly repudiates his trust, and the time it commences to run must be determined upon facts in each case. Jirka v. Prior, 196 Neb. 416, 243 N.W.2d 754 (1976).As between cotenants, statute of limitations begins to run from time of ouster. Unick v. St. Joseph Loan and Trust Co., 146 Neb. 789, 21 N.W.2d 752 (1946).Partial payments do not extend period of time for commencing action as against purchaser for value. Weekes v. Rumbaugh, 144 Neb. 103, 12 N.W.2d 636 (1944).Before possession can become adverse between co-owners, notice that the part owner in possession is claiming the entire estate in hostility to his co-owners must be brought home to the latter in some plain and unequivocal manner. Gramann v. Beatty, 134 Neb. 568, 279 N.W. 204 (1938).Petition showing cause accrued twenty-six years before action was begun was demurrable. Parkin v. Parkin, 123 Neb. 836, 244 N.W. 638 (1932).Statute does not begin to run against cestui que trust until trustee repudiates trust, since until then the fraud has not become known. Wiseman v. Guernsey, 107 Neb. 647, 187 N.W. 55 (1922).Action to enforce lien of specific money bequest upon land in hands of residuary legatee, when barred. Overton v. Sack, 99 Neb. 64, 155 N.W. 222 (1915); Klug v. Seegabarth, 98 Neb. 272, 152 N.W. 385 (1915).The statute will continue to run against one who has executed a valid deed of the premises under which the land is so held, although a later conveyance in the chain of title is found to be invalid. Davidge v. Talbot, 98 Neb. 816, 154 N.W. 543 (1915).In mortgagor's action to redeem, statute begins to run when mortgagee takes possession with color of title. Essex v. Smith, 97 Neb. 649, 150 N.W. 1022 (1915); Jackson v. Rohrberg, 94 Neb. 85, 142 N.W. 290 (1913).Statute does not run until notice that trustee denies his right in the property. Goodman v. Smith, 94 Neb. 227, 142 N.W. 521 (1913).Action by heir to recover homestead illegally sold at administrator's sale must be commenced within ten years after attaining his majority. Holmes v. Mason, 80 Neb. 448, 114 N.W. 606 (1908).Action may be brought any time before statutory bar is complete. Clark v. Hannafeldt, 79 Neb. 566, 113 N.W. 135 (1907); Dickson v. Stewart, 71 Neb. 424, 98 N.W. 1085 (1904); Dorsey v. Conrad, 49 Neb. 443, 68 N.W. 645 (1896).Statute does not run against claim of subrogation under prior mortgage until ten years from maturity of latter. Boevink v. Christiaanse, 69 Neb. 256, 95 N.W. 652 (1903).To obtain deficiency judgment upon mortgage indebtedness, action must be brought within five years. Omaha Savings Bank v. Simeral, 61 Neb. 741, 86 N.W. 470 (1901).Subsequent mortgagee, not made party to foreclosure of prior mortgage, is not barred from action until ten years after cause of action accrues. Baldwin v. Burt, 43 Neb. 245, 61 N.W. 601 (1895).Statute begins to run, when in favor of entryman on public lands. Mills v. Traver, 35 Neb. 292, 53 N.W. 67 (1892); Carroll v. Patrick, 23 Neb. 834, 37 N.W. 671 (1888).6. Tolling of statuteA subsequent encumbrancer is one who acquires one's encumbrance for value after the statute has run against a prior encumbrance. A mortgage on real estate continues as a lien thereon for only 10 years from the maturity of the debt secured unless a payment has been made thereon, or the statute of limitations has otherwise been tolled. Vanice v. Oehm, 247 Neb. 298, 526 N.W.2d 648 (1995).An action to foreclose a real estate mortgage may be brought within the limitation hereunder even though an action on the debt is barred. J. I. Case Credit Corp. v. Thompson, 187 Neb. 626, 193 N.W.2d 283 (1971).Absence from state will not extend the time in which a real estate mortgage foreclosure may be brought against a nonresident. Brainard v. Hall, 137 Neb. 491, 289 N.W. 845 (1940).Death of party against whom statute has commenced to run does not toll statute; it continues to run as against heirs. McNeill v. Schumaker, 94 Neb. 544, 143 N.W. 805 (1913).Running of statute is arrested by service of summons. Butler v. Smith, 84 Neb. 78, 120 N.W. 1106 (1909).Unless tolled, statute of limitations for foreclosure of real mortgage is ten years from maturity of the debt secured. Herbage v. McKee, 82 Neb. 354, 117 N.W. 706 (1908).In determining period of limitation on action to foreclose mortgage, partial payments or written acknowledgment operate to toll statute. Teegarden v. Burton, 62 Neb. 639, 87 N.W. 337 (1901).Conveyance by adverse occupant to one not competent to take title will not arrest running of statute. Myers v. McGavock, 39 Neb. 843, 58 N.W. 522 (1894).7. Inverse condemnationThe period of limitations for inverse condemnation actions is the ten years within which actions for adverse possession must be brought pursuant to this section. Kimco Addition v. Lower Platte South N.R.D., 232 Neb. 289, 440 N.W.2d 456 (1989).Section 76-701 et seq., R.R.S.1943, provides no specific statute of limitations; therefore the ten-year period in section 25-202, R.R.S.1943, applies in inverse condemnation proceedings. Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (1977).8. MiscellaneousThis section is applicable to an action to quiet title to an interest in real estate. Olsen v. Olsen, 265 Neb. 299, 657 N.W.2d 1 (2003).The statute of limitations for a judicial action to foreclose on real property under a deed of trust is 10 years. PSB Credit Servs. v. Rich, 251 Neb. 474, 558 N.W.2d 295 (1997).Courts of equity have the inherent power to refuse relief after undue and inexcusable delay independent of the statute of limitations. Cizek v. Cizek, 201 Neb. 4, 266 N.W.2d 68 (1978).Where plaintiff's predecessor in title had been in actual, continuous, notorious adverse possession of island for ten years he became the owner thereof. Winkle v. Mitera, 195 Neb. 821, 241 N.W.2d 329 (1976).A school district is an other municipal corporation and its real estate is other public grounds within provisions of this section. Buras v. School Dist. No. 37 of Sarpy County, 190 Neb. 836, 212 N.W.2d 632 (1973).Undisputed evidence indicated defendants, by maintenance of drainage ditch through plaintiff's land for a period in excess of ten years, but for the public interest involved, acquired easement in their own right. Franz v. Nelson, 183 Neb. 137, 158 N.W.2d 606 (1968).Subsequent encumbrancer is one who acquires his encumbrance for value after statute has run against prior encumbrance. Alexanderson v. Wessman, 158 Neb. 614, 64 N.W.2d 306 (1954).A person, claiming right to mortgaged realty prior to mortgagee whose mortgage was extended by unrecorded written agreement, must show that the person is purchaser or encumbrancer who has parted with something of value. Franklin v. Zarmstorf, 145 Neb. 21, 15 N.W.2d 190 (1944).Where an occupant of real estate disclaims title prior to the running of the statute of limitations, he is precluded from acquiring title by adverse possession. Weisel v. Hobbs, 138 Neb. 656, 294 N.W. 448 (1940).The requirement that mortgage be rerecorded within ten years after cause of action accrues is limited in its application to subsequent purchasers and encumbrancers for value. Hadley v. Corey, 137 Neb. 204, 288 N.W. 826 (1939).Adverse possession of accreted lands must be proved by actual, open, exclusive, and continuous possession under claim of ownership for ten years. Conkey v. Knudsen, 135 Neb. 890, 284 N.W. 737 (1939).Action for relief based on mistake and accident is not governed by this section, as such relief is classed as fraud. Sweley v. Fox, 135 Neb. 780, 284 N.W. 318 (1939).In determining period of limitation in action to foreclose real estate mortgage given as security for note, this section should be construed in connection with section providing that part payment or acknowledgment of debt tolls statute. Steeves v. Nispel, 132 Neb. 597, 273 N.W. 50 (1937).Courts of equity have inherent power to refuse relief after undue and inexcusable delay independent of statute of limitations. Perry v. Markle, 127 Neb. 29, 254 N.W. 692 (1934).Bank held not subsequent encumbrancer within meaning of section. O'Connor v. Power, 124 Neb. 113, 245 N.W. 417 (1932), overruled in 124 Neb. 594, 247 N.W. 414 (1933).Possession as between parties in parental or filial relation is deemed permissive. Chase v. Lavelle, 105 Neb. 796, 181 N.W. 936 (1921).Mortgagor must do equity by tendering amount due on mortgage debt. Pettit v. Louis, 88 Neb. 496, 129 N.W. 1005 (1911).Statute applied to streets. Agnew v. City of Pawnee City, 79 Neb. 603, 113 N.W. 236 (1907); Webster v. City of Lincoln, 56 Neb. 502, 76 N.W. 1076 (1898).

25-203 Actions for forcible entry and detainer of real property.

25-203. Actions for forcible entry and detainer of real property.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. SourceR.S.1867, Code § 8, p. 395; R.S.1913, § 7565; C.S.1922, § 8508; C.S.1929, § 20-203; R.S.1943, § 25-203.AnnotationsWhere tenancy by sufferance is terminated by statutory three-day notice, cause of action for forcible detainer accrues and statute runs from service of notice. Federal Trust Co. v. Overlander, 118 Neb. 167, 223 N.W. 797 (1929); Clark v. Tukey Land Co., 75 Neb. 326, 106 N.W. 328 (1905).When the right to bring an action of forcible entry and detention is barred as against the grantor, so likewise it is against the grantee. Weatherford v. Union Pacific R. Co., 74 Neb. 229, 104 N.W. 183 (1905).

25-204 Actions other than for the recovery of real property.

25-204. Actions other than for the recovery of real property.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. SourceR.S.1867, Code § 9, p. 395; R.S.1913, § 7566; C.S.1922, § 8509; C.S.1929, § 20-204; R.S.1943, § 25-204.AnnotationsCause of action to establish right to pension accrued at time fireman was totally and permanently disabled. Barney v. City of Lincoln, 144 Neb. 537, 13 N.W.2d 870 (1944).Cause of action "accrued" when buyer acknowledged and promised to pay balance. W. T. Rawleigh Co. v. Smith, 142 Neb. 527, 7 N.W.2d 80 (1942).Action by a husband for damages on account of assault and battery committed on wife must be brought within one year after cause of action occurred. Markel v. Glassmeyer, 137 Neb. 243, 288 N.W. 821 (1939).The defense of statute of limitations is personal privilege of debtor, and can only be made by persons standing in his place. Neill v. Burke, 81 Neb. 125, 115 N.W. 321 (1908).When not apparent on face of petition that action is barred, statute must be pleaded as a defense, or it is waived. Hanna v. Emerson, 45 Neb. 708, 64 N.W. 229 (1895).Time may be extended by part payment or written acknowledgment. Lee, Fried & Co. v. Brugmann, 37 Neb. 232, 55 N.W. 1053 (1893); Rolfe v. Pilloud, 16 Neb. 21, 19 N.W. 615 (1884).Promise by one joint debtor will not toll statute as to other joint debtors. Mayberry v. Willoughby, 5 Neb. 368 (1877).Under this and other statutes of limitations suit against employer to enforce agreement made in 1893 to deliver corporate stock was barred, in view of lapse of time, change in value, and repudiation of trust. Reed v. Fairmont Creamery Co., 37 F.2d 332 (8th Cir. 1929).

25-205 Actions on written contracts, on foreign judgments, or to recover collateral.

25-205. Actions on written contracts, on foreign judgments, or to recover collateral.(1) Except as provided in subsection (2) of this section, an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment, can only be brought within five years. No action at law or equity may be brought or maintained attacking the validity or enforceability of or to rescind or declare void and uncollectible any written contract entered into pursuant to, in compliance with, or in reliance on, a statute of the State of Nebraska which has been or hereafter is held to be unconstitutional by the Supreme Court of Nebraska where such holding is the basis for such action, unless such action be brought or maintained within one year from the effective date of such decision. The provisions hereof shall not operate to extend the time in which to bring any action or to revive any action now barred by reason of the operation of any previously existing limitation provision.(2) An action to recover collateral (a) the possession and ownership of which a debtor has in any manner transferred to another person and (b) which was used as security for payment pursuant to an agreement, contract, or promise in writing which covers farm products as described in section 9-102, Uniform Commercial Code, or farm products which become inventory of a person engaged in farming, shall be brought within eighteen months from the date possession and ownership of such collateral was transferred. SourceR.S.1867, Code § 10, p. 395; R.S.1913, § 7567; C.S.1922, § 8510; C.S.1929, § 20-205; R.S.1943, § 25-205; Laws 1963, Spec. Sess., c. 2, § 1, p. 61; Laws 1983, LB 343, § 9; Laws 1999, LB 550, § 3.Annotations1. Acts that toll the statute2. Acts that do not toll the statute3. Specific actions covered by statute4. Miscellaneous1. Acts that toll the statuteA cause of action on an insurer's duty to defend does not run until the underlying action is resolved against the insured. Dutton-Lainson Co. v. Continental Ins. Co., 271 Neb. 810, 716 N.W.2d 87 (2006).Voluntary payment of any part of principal or interest tolls statute of limitations and new right of action accrues after each payment, not tolled as to joint maker unless payment made with his authority or consent. Pick v. Pick, 184 Neb. 716, 171 N.W.2d 766 (1969).Where a new independent cause of action is filed by way of amendment, the statute of limitations runs until the filing of the amended petition. Horn's Crane Service v. Prior, 182 Neb. 94, 152 N.W.2d 421 (1967).Mortgage subsequently given was an acknowledgment in writing of prior note. Alexanderson v. Wessman, 158 Neb. 614, 64 N.W.2d 306 (1954).Where a bank assumed and agreed to pay the liabilities of another bank, the statute of limitations commenced to run against the assuming bank upon a certificate of deposit that had already matured at the time the assumption agreement was made. Diss v. State Bank of Holdrege, 141 Neb. 146, 3 N.W.2d 89 (1942).Where a municipal warrant has been registered, statute of limitations does not commence to run until treasurer of municipal corporation gives notice to the holder of the warrant that there is sufficient money in the treasury to pay the warrant. Havelock Nat. Bank v. Northport Irr. Dist., 139 Neb. 747, 298 N.W. 695 (1941).In determining whether statute of limitations has run upon a written instrument, part payments made by a debtor without specific direction may be applied by the creditor on any indebtedness owing by the debtor to the creditor. Fox v. Carman, 139 Neb. 34, 296 N.W. 343 (1941).Where judgment is obtained on promissory note through fraud, court of equity will set it aside where it appears the maker had a good defense in that statute of limitations had run. Pavlik v. Burns, 134 Neb. 175, 278 N.W. 149 (1938).Payments by one partner out of partnership funds, where partnership has become inactive but has not been dissolved, toll statute of limitations as to both partners. Jensen v. Romigh, 133 Neb. 71, 274 N.W. 199 (1937).In suit on insurance policy based on presumption of death after seven years' unexplained absence, statute of limitations does not begin to run until expiration of seven-year period. Wells v. Equitable Life Assurance Society, 130 Neb. 722, 266 N.W. 597 (1936).Cashier of bank who endorsed to bank a note of which he was payee, and, instead of collecting the note as was his duty, made payments of principal and interest on note from time to time, and, in three instances marked the note extended for two years each, was estopped, when sued on his endorsement, to plead statute of limitations. Atlas Corporation v. Magdanz, 130 Neb. 519, 265 N.W. 743 (1936).Where a judgment of revivor had been obtained within five years before bringing action in this state, it was not barred by the statute of limitations of this state. Packer v. Thompson, 25 Neb. 688, 41 N.W. 650 (1889).2. Acts that do not toll the statutePartial payments made without the authority or consent of a surety, unless ratified by the surety, do not toll the statute of limitations as to the surety. Watkins Products, Inc. v. Rains, 175 Neb. 57, 120 N.W.2d 368 (1963).Action against surety on written contract of guaranty was barred although payments were made by principal within five years. W. T. Rawleigh Co. v. Smith, 142 Neb. 529, 9 N.W.2d 286 (1943), affirming 142 Neb. 527, 7 N.W.2d 80 (1942).Surety was not liable when he did nothing to prevent running of statute of limitations. W. T. Rawleigh Co. v. Smith, 142 Neb. 527, 7 N.W.2d 80 (1942).Payments on note by principal without authority or consent of surety does not prevent running of statute of limitations against surety. In re Estate of Soukup, 142 Neb. 456, 6 N.W.2d 615 (1942).The right to retain the debt of an heir upon a promissory note from his distributive share of estate is not precluded even though action to recover upon the note is barred by the statute of limitations. Fischer v. Wilhelm, 139 Neb. 583, 298 N.W. 126 (1941), opinion partially vacated on rehearing, 140 Neb. 448, 300 N.W. 350 (1941).Where will provided that any sum owing to testator by heirs should be deducted from share of such heir, an heir cannot successfully object upon the ground of the statute of limitations to deduction of notes which had not run five years at time of death of testator. In re Estate of Nissen, 134 Neb. 794, 279 N.W. 782 (1938).Payment by one of several joint debtors on note, without authority or consent of other debtors, does not toll statute of limitations as to them. Kuhse v. Luther, 130 Neb. 623, 266 N.W. 66 (1936).Stipulation contained in a note permitting the holder to extend the time of payment without notice, is not an agreement waiving the right to plead the bar of the statute. Allen v. Estate of Allen, 81 Neb. 600, 116 N.W. 509 (1908).3. Specific actions covered by statuteIn a suit against the guarantors of a promissory note that contains an optional acceleration clause, the statute of limitations for an action on the whole indebtedness due begins to run from the time the creditor takes positive action indicating that the creditor has elected to exercise the option. City of Lincoln v. Hershberger, 272 Neb. 839, 725 N.W.2d 787 (2007).In this case, the general 5-year statute of limitations must yield to the 3-year provision in a health insurance policy because such provision is authorized by the statutes regulating health insurance policies. Brodine v. Blue Cross Blue Shield, 272 Neb. 713, 724 N.W.2d 321 (2006).The statute of limitations provided in this section applies to an action on a contract of guaranty. The statute of limitations begins to run against a contract of guaranty the moment a cause of action first accrues, and a guarantor's liability arises when the principal debtor defaults. In the absence of provisions to the contrary in the controlling documents, a cause of action does not accrue against a guarantor until the guarantor's liability has arisen, and a guarantor's liability does not arise until the debtor defaults. City of Lincoln v. PMI Franchising, 267 Neb. 562, 675 N.W.2d 660 (2004).This section, which provides for a 5-year statute of limitations on written contracts, applies in an insured's suit against its uninsured or underinsured motorist coverage insurer when the insured has timely filed the underlying claim against the uninsured or underinsured motorist. Schrader v. Farmers Mut. Ins. Co., 259 Neb. 87, 608 N.W.2d 194 (2000).Generally, absent a more specific statute, actions on written contracts may be brought within 5 years. Kratochvil v. Motor Club Ins. Assn., 255 Neb. 977, 588 N.W.2d 565 (1999).An action for damages for breach of a covenant of warranty contained in a deed conveying land is an action upon a specialty and must be brought within 5 years after the cause of action accrues; this rule applies in actions for damages for breach of a covenant against encumbrances. Omega Chemical Co. v. Rogers, 246 Neb. 935, 524 N.W.2d 330 (1994).An action based on breach of a written contract must be commenced within five years of accrual of a cause of action. Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979).Five-year statute of limitations applies to a third party beneficiary under a real estate sales contract. Mid-Continent Properties, Inc. v. Pflug, 197 Neb. 429, 249 N.W.2d 476 (1977).Actions to recover annual payments provided by indenture granting perpetual easement for flow of water and to enforce equitable lien growing out of the indenture are controlled by this section. Frye v. Sibbitt, 145 Neb. 600, 17 N.W.2d 617 (1945).Cause of action on indemnity contract accrues when loss thereunder occurs. Lyhane v. Durtschi, 144 Neb. 256, 13 N.W.2d 130 (1944); Bankers Surety Co. v. Willow Springs Beverage Co., 104 Neb. 173, 176 N.W. 82 (1920).A domestic judgment is a specialty and suit thereon is barred after five years from date of judgment. Farmers & Merchants Bank of Axtell V. Merryman, 126 Neb. 684, 254 N.W. 428 (1934); Reed v. Occidental Bldg. & Loan Assn., 122 Neb. 817, 241 N.W. 769 (1932); Armstrong v. Marr, 120 Neb. 182, 231 N.W. 758 (1930); Fisher v. Woodard, 103 Neb. 253, 170 N.W. 907 (1919); Armstrong v. Patterson, 97 Neb. 229, 149 N.W. 408 (1914), reversed on rehearing 97 Neb. 871, 152 N.W. 311 (1915).Action for breach of covenant of warranty in deed is specialty, barred unless commenced within five years from date of breach. Campbell v. Gallentine, 115 Neb. 789, 215 N.W. 111 (1927); Kern v. Kloke, 21 Neb. 529, 32 N.W. 574 (1887).Statute runs against married woman during coverture. Watkins v. Adamson, 113 Neb. 715, 204 N.W. 816 (1925).Time of commencing action on city warrants stated. Trenerry v. City of So. Omaha, 86 Neb. 7, 124 N.W. 920 (1910); Rogers v. City of Omaha, 82 Neb. 118, 117 N.W. 119 (1908).Time of commencing action for money had and received stated. Thiele v. Carey, 85 Neb. 454, 123 N.W. 442 (1909).Time of commencing action on draft stated. Wrigley v. Farmers and Merchants State Bank of Beatrice, 76 Neb. 862, 108 N.W. 132 (1906).Time of commencing action to reform policy of insurance stated. Grand View Building Assn. v. Northern Assur. Co., 73 Neb. 149, 102 N.W. 246 (1905).Time of commencing action on county warrants stated. Bacon v. Dawes County, 66 Neb. 191, 92 N.W. 313 (1902).Time of commencing action on award of damages stated. City of Omaha v. Clarke, 66 Neb. 33, 92 N.W. 146 (1902).Time of commencing action on covenant against encumbrances stated. Johnson v. Hesser, 61 Neb. 631, 85 N.W. 894 (1901); Bellamy v. Chambers, 50 Neb. 146, 69 N.W. 770 (1897).Time of commencing action on guaranty of payment stated. Cummins v. Tibbetts, 58 Neb. 318, 78 N.W. 617 (1899).Time of commencing action on bank check stated. Connor v. Becker, 56 Neb. 343, 76 N.W. 893 (1898).Time of commencing action on foreign judgments stated. Lonergan v. Lonergan, 55 Neb. 641, 76 N.W. 16 (1898); Hepler v. Davis, 32 Neb. 556, 49 N.W. 458 (1891); Marx & Kempner v. Kilpatrick, 25 Neb. 107, 41 N.W. 111 (1888).Time of commencing action on contract for transportation of goods stated. Denman v. Chicago, B. & Q. R. Co., 52 Neb. 140, 71 N.W. 967 (1897).Time of commencing action for foreclosure of tax lien stated. Alexander v. Thacker, 43 Neb. 494, 61 N.W. 738 (1895); Shepherd v. Burr, 27 Neb. 432, 43 N.W. 256 (1889).Time of commencing action on insurance policy stated. Phenix Ins. Co. v. Rad Bila Hora Lodge, 41 Neb. 21, 59 N.W. 752 (1894).An action upon a foreign judgment is barred in five years. Nelson v. Becker, 32 Neb. 99, 48 N.W. 962 (1891).Warrant issued by a village will be barred in five years from time it becomes due. Arapahoe Village v. Albee, 24 Neb. 242, 38 N.W. 737 (1888).Time of commencing action on school district bonds stated. School Dist. No. 42 of Pawnee County v. First Nat. Bank of Xenia, 19 Neb. 89, 26 N.W. 912 (1886).Time of commencing action on promissory notes stated. Hedges v. Roach, 16 Neb. 673, 21 N.W. 404 (1884).Suit by employee against employer for breach of written employment contract was governed by Nebraska five-year statute of limitations rather than the four-year statute of limitations relating to actions upon a contract not in writing. Sandobal v. Armour & Co., 429 F.2d 249 (8th Cir. 1979).Cause of action for breach of contract of employment accrued on date of alleged wrongful discharge. Howard v. Chicago, B. & Q. R. R. Co., 146 F.2d 316 (8th Cir. 1945).4. MiscellaneousWhere there is an ongoing contractual obligation, a separate cause of action accrues at the time of each breach. Where an obligation is payable by installments, the statute of limitations runs against each installment individually from the time it becomes due. Andersen v. A.M.W., Inc., 266 Neb. 238, 665 N.W.2d 1 (2003).A cause of action in contract accrues at the time of the breach or failure to do the thing agreed to. An insured's cause of action on an insurance policy to recover underinsured motorist benefits accrues at the time of the insurer's breach or failure to do that which is required under the terms of the policy. Snyder v. Case and EMCASCO Ins. Co., 259 Neb. 621, 611 N.W.2d 409 (2000).The filing of a foreign judgment in a Nebraska court pursuant to section 25-1587.03 is not an action upon a foreign judgment within the meaning of this section. Deuth v. Ratigan, 256 Neb. 419, 590 N.W.2d 366 (1999).Pursuant to subsection (1) of this section, the statute of limitations started running when the city failed to timely post notice of a promotion examination under the terms of a collective bargaining agreement, not when the city actually administered the exam. Cavanaugh v. City of Omaha, 254 Neb. 897, 580 N.W.2d 541 (1998).To toll the statute of limitations and to remove the bar of the statute, a debtor must unqualifiedly acknowledge an existing liability. Kotas v. Sorensen, 216 Neb. 648, 345 N.W.2d 1 (1984).In a suit on a promissory note and security agreement, the statute of limitations begins to run when the creditor exercises his option to accelerate the debt, thereby making the entire amount of the debt due. State Security Savings Co. v. Pelster, 207 Neb. 158, 296 N.W.2d 702 (1980).Where a covenant against encumbrances and covenants of warranty or quiet enjoyment appear in the same instrument, they are separate and independent covenants and one does not embrace the other. Cape Co. v. Wiebe, 196 Neb. 204, 241 N.W.2d 830 (1976).This section bars action on the note, but not on the mortgage given to secure it. J. I. Case Credit Corp. v. Thompson, 187 Neb. 626, 193 N.W.2d 283 (1971).Where insurance policy issued in this state provides twelve months' limitation for filing action, but also contains provision amending terms to conform with conflicting statutes, limitations in state statutes are applicable. Hiram Scott College v. Insurance Co. of North America, 187 Neb. 290, 188 N.W.2d 688 (1971).Where community of interest or privity of estate exists between intervener and plaintiff, the commencement of action by plaintiff inures to benefit of intervener. Baker v. A. C. Nelson Co., 185 Neb. 128, 174 N.W.2d 197 (1970).This section did not govern bringing of action on fire insurance policy. Rhodes v. Continental Ins. Co., 180 Neb. 10, 141 N.W.2d 415 (1966).An action upon a contract in writing must be commenced within five years after cause of action has accrued. Weiss v. Weiss, 179 Neb. 714, 140 N.W.2d 15 (1966).Instrument must in itself contain contract or promise. Grant v. Williams, 158 Neb. 107, 62 N.W.2d 532 (1954).In action upon written instrument, where more than five years have elapsed from date of maturity, claimant must plead and prove facts to avoid bar of statute. In re Estate of Anderson, 148 Neb. 436, 27 N.W.2d 632 (1947).Burden of proof rests upon plaintiff who pleads written extension of time of payment to avoid the bar of statute of limitations upon a promissory note. Prokop v. Mlady, 136 Neb. 644, 287 N.W. 55 (1939).By failing to make demand, payee of a demand note cannot do away with the statute of limitations, which begins to run the day after the note is executed and delivered. Melville Lumber Co. v. Scott, 135 Neb. 379, 281 N.W. 803 (1938).The statute of limitations on a note payable on demand begins to run the day after the note is executed and delivered. Luikart v. Hoganson, 135 Neb. 280, 281 N.W. 27 (1938).Provision in insurance policy issued by fraternal benefit society that suit must be commenced within one year from date of member's death will be enforced in Nebraska if valid in state where contract was made. Avondale v. Sovereign Camp, W.O.W., 134 Neb. 717, 279 N.W. 355 (1938).Defense of statute of limitations was properly pleaded. Nebraska State Bank Liquidation Assn. v. Village of Burton, 134 Neb. 623, 279 N.W. 319 (1938).Defense of recoupment must arise out of same transaction as plaintiff's claim, and survives as long as plaintiff's cause of action exists, even if affirmative action on the subject of the recoupment is barred by statute of limitations. Oft v. Dornacker, 131 Neb. 644, 269 N.W. 418 (1936).When state bank, against which a creditor had taken judgment, reorganized as national bank, and creditor sues the national bank to enforce his judgment formerly obtained against state bank, the statute of limitations begins to run on judgment from date it was obtained. Wilson v. Continental Nat. Bank, 130 Neb. 614, 266 N.W. 68 (1936).Forum state's statute of limitations was procedural rather than substantive and was properly applied in diversity action for breach of contract. Player Pianette, Inc. v. Dale Electronics, Inc., 478 F.2d 336 (8th Cir. 1973).In applying provision of Bankruptcy Act relating to proving of debt founded on contract express or implied, the character of the debt is determined by the law of the state where created. Erickson v. Richardson, 86 F.2d 963 (9th Cir. 1936).

25-206 Actions on oral contracts or statutory liabilities.

25-206. Actions on oral contracts or statutory liabilities.An action upon a contract, not in writing, expressed or implied, or an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within four years. SourceR.S.1867, Code § 11, p. 395; R.S.1913, § 7568; C.S.1922, § 8511; C.S.1929, § 20-206; R.S.1943, § 25-206.Annotations1. When cause of action accrues2. When statute is applicable3. When statute is not applicable4. Miscellaneous1. When cause of action accruesPlaintiff's cause of action on oral contract for the sale of grain, to be paid for on demand, accrued when demand could have been made and not when demand was actually made and was, therefor, barred by this section. Stock v. Meissner, 209 Neb. 636, 309 N.W.2d 86 (1981).Action to recover payments made by county for maintenance of insane patient in state hospital is barred after four years. County of Adams v. Ernst, 158 Neb. 15, 62 N.W.2d 110 (1954).Claim for reimbursement from estate of recipient of old age assistance did not accrue until death of recipient. Boone County Old Age Assistance Board v. Myhre, 149 Neb. 669, 32 N.W.2d 262 (1948).Where services are rendered under a contract of employment which does not fix the term of service or the time of payment, the statute does not commence to run until the employee's services are terminated. In re Baker's Estate, 144 Neb. 797, 14 N.W.2d 585 (1944).Under oral contract of hire terminated by mutual agreement, and superseded by another written contract between the same parties, cause of action for payment of salary under the first contract accrues immediately upon termination. Price v. Platte Valley Public Power & Irr. Dist., 139 Neb. 787, 298 N.W. 746 (1941).The statute of limitations does not begin to run against the claim of an adult child for services continually performed under an oral contract for parents during their lives, until the contract is terminated by their death. In re Estate of Skade, 135 Neb. 712, 283 N.W. 851 (1939).Where action is brought to recover on implied obligation to repay money borrowed on void warrants, statute of limitations begins to run on date of last payment on the warrant. Nebraska State Bank Liquidation Assn. v. Village of Burton, 134 Neb. 623, 279 N.W. 319 (1938).Liability of a bank director for loss sustained on excess loan is barred four years after the excessive loan is made. Department of Banking v. McMullen, 134 Neb. 338, 278 N.W. 551 (1938).Liability of county judge as recipient of distributive share of absent devisee, which he failed to turn over to his successor in office or to said devisee, is not a liability created by statute but an original and primary action on his bond and may be brought within ten years after cause of action accrued. Ericsson v. Streitz, 132 Neb. 692, 273 N.W. 17 (1937).Statute runs from the date of an account stated, and not from incurring of original debt. In re Estate of Black, Robinson v. Wittera, 125 Neb. 75, 249 N.W. 84 (1933).Time of commencing action on contract for transportation of goods stated. Denman v. Chicago, B. & Q. R. R. Co., 52 Neb. 140, 71 N.W. 967 (1897).Action on commission account was barred four years from last item. In re Automatic Equipment Mfg. Co., 103 F.Supp. 427 (D. Neb. 1952).2. When statute is applicableAn action for an accounting of rents and profits of land is limited to four years. In re Estate of Widger, 235 Neb. 179, 454 N.W.2d 493 (1990).Excluding September 5, 1969, the last day on which work was done, the last day of the four-year period of limitations was September 5, 1973. George P. Rose Sodding & Grading Co. v. Dennis, 195 Neb. 221, 237 N.W.2d 418 (1976).Claim for services rendered was not barred until four years after death of promisor. Houser v. Houser, 178 Neb. 401, 133 N.W.2d 618 (1965).This section applies to action in mandamus to place fireman on pension rolls of city. State ex rel. McIlvain v. City of Falls City, 177 Neb. 677, 131 N.W.2d 93 (1964).This section was applicable to action by city to recover amount paid on void contract. Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208 (1959).Statute of limitations applies to claims by one county against another for maintenance of an incompetent person in a state hospital. County of Kearney v. County of Buffalo, 167 Neb. 117, 91 N.W.2d 304 (1958).Action for accounting of the rents and profits of land is limited to four years. Beacom v. Daley, 164 Neb. 120, 81 N.W.2d 907 (1957).Contract partly written and partly oral falls under this section. Grant v. Williams, 158 Neb. 107, 62 N.W.2d 532 (1954).Action against city to recover pension is based on liability created by statute and is barred if not brought within four years of accrual of action. Barney v. City of Lincoln, 144 Neb. 537, 13 N.W.2d 870 (1944).Statute applies to claims against counties. Bryant v. Cedar County, 122 Neb. 853, 241 N.W. 538 (1932).Liability of stockholder, under Article XII, section 4, Constitution of Nebraska, is not a penalty barred in one year, but is contractual and governed by this section. Bourne v. Baer, 107 Neb. 255, 185 N.W. 408 (1921).Action to recover on implied assumpsit is barred in four years. O'Neill v. City of So. Omaha, 102 Neb. 836, 170 N.W. 174 (1918).Where more than four years intervenes between execution sale and action to set it aside, the action is barred. Best v. Zutavern, 53 Neb. 604, 74 N.W. 64 (1898).Section applies to action for money received by agent for principal. Arnett v. Zinn, 20 Neb. 591, 31 N.W. 240 (1886).Action for money had and received must be brought within four years from receipt of the money. Murphy v. Omaha, 1 Neb. Unof. 488, 95 N.W. 680 (1901).Suit against employer to enforce agreement made in 1893 to deliver corporate stock was barred by this and other statutes of limitation in view of lapse of time. Reed v. Fairmont Creamery Co., 37 F.2d 332 (8th Cir. 1929).3. When statute is not applicableRight of retainer against heir is not affected by lapse of time, even though action upon the debt is barred by statute of limitations. Fischer v. Wilhelm, 139 Neb. 583, 298 N.W. 126 (1941), opinion partially vacated on rehearing, 140 Neb. 448, 300 N.W. 350 (1941).Oral agreement to compensate one for past services, not performed as gratuity and not barred by statute, as well as for future services, out of promisor's estate by testamentary provision, is an independent contract to which statute requiring new promise to be in writing does not apply, where promisee performs agreement. Weideman v. Peterson's Estate, 129 Neb. 74, 261 N.W. 150 (1935).Lien of special assessments is not barred by this section. Lincoln St. Ry. Co. v. City of Lincoln, 61 Neb. 109, 84 N.W. 802 (1901).Section does not apply to recover delinquent personal taxes collected by distress. Price v. Lancaster County, 18 Neb. 199, 24 N.W. 705 (1885).4. MiscellaneousSection 76-701 et seq., R.R.S.1943, provides no specific statute of limitations; therefore the ten-year period in section 25-202, R.R.S.1943, applies in inverse condemnation proceedings. Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (1977).In absence of agreement, or directions by debtor, a credit for work and labor may be applied by creditor in such manner as to interrupt running of statute of limitations. Heineman v. Thimgan, 136 Neb. 357, 285 N.W. 920 (1939).Where the defense raised is statute of limitations, the issue should be presented to the jury for determination. Nocita v. Guiliano, 130 Neb. 241, 264 N.W. 672 (1936).Statute of limitations, not being pleaded, will not be considered. State ex rel. Davis v. Banking House of A. Castetter, 118 Neb. 231, 224 N.W. 21 (1929).The unilateral crediting of defendant's debt without defendant's consent or knowledge was not a voluntary acknowledgment of the debt sufficient to toll the statute of limitations. Hejco, Inc. v. Arnold, 1 Neb. App. 44, 487 N.W.2d 573 (1992).Section 25-219 was applicable to federal civil rights claim of former guidance counselor in action against school district on allegations dismissal was due to his race and his exercise of First Amendment rights. Chambers v. Omaha Public School Dist., 536 F.2d 222 (8th Cir. 1976).

25-207 Actions for trespass, conversion, other torts, and frauds; exceptions.

25-207. Actions for trespass, conversion, other torts, and frauds; exceptions.The following actions can only be brought within four years: (1) An action for trespass upon real property; (2) an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; (3) an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated; and (4) 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, except as provided in sections 30-2206 and 76-288 to 76-298. SourceR.S.1867, Code § 12, p. 395; R.S.1913, § 7569; C.S.1922, § 8512; C.S.1929, § 20-207; R.S.1943, § 25-207; Laws 1947, c. 243, § 11, p. 766; Laws 1975, LB 481, § 9.Annotations1. Conversion2. Fraud3. Real property4. Trusts5. Damages or injury6. Miscellaneous1. ConversionStatute of limitations against trustee for conversion of trust property does not commence to run until knowledge is brought home to beneficiary of repudiation of trust. Bratt v. Wishart, 136 Neb. 899, 287 N.W. 769 (1939).Where mortgagee of chattels unlawfully seizes mortgaged property before condition broken, action is barred after four years from date of seizure. Brashier v. Tolleth, 31 Neb. 622, 48 N.W. 398 (1891).2. FraudAn action for fraud must be brought within 4 years of when the cause of action accrues. Such action does not accrue until there has been discovery of the facts constituting the fraud or facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which would lead to such discovery. NECO, Inc. v. Larry Price & Assocs., Inc., 257 Neb. 323, 597 N.W.2d 602 (1999).An action for relief on the ground of fraud can only be brought within 4 years. Such action accrues once there has been a discovery of facts constituting the fraud, or facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery. Bowling Assocs., Ltd. v. Kerrey, 252 Neb. 458, 562 N.W.2d 714 (1997).In the context of a fraud action, the limitations period begins to run upon discovery of the facts constituting the fraud, or facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery. A cause of action cannot "accrue" before occurrence of all the elements which constitute a defendant's violation of a plaintiff's judicially protected right. Henderson v. Forman, 240 Neb. 939, 486 N.W.2d 182 (1992).If facts pleaded in a petition are sufficient to plead an excuse to the operation of the statute limiting action based on fraud, a general demurrer will be defeated. Lee v. Brodbeck, 196 Neb. 393, 243 N.W.2d 331 (1976).Where fraud should have been discovered within four years of recording of mineral deed, statute of limitations was complete defense. Jameson v. Graham, 159 Neb. 202, 66 N.W.2d 417 (1954).Accrual of cause of action for fraud is fixed as of the time of discovery. Abels v. Bennett, 158 Neb. 699, 64 N.W.2d 481 (1954).In action for relief based on fraud, suit was instituted when summons was served on original petition where amended petition merely set forth a more complete statement of original cause of action. Horrigan v. Quinlan, 149 Neb. 538, 31 N.W.2d 430 (1948).An action for relief on the ground of fraud may be commenced only within four years after the discovery of the facts constituting the fraud or of facts sufficient to put a person of ordinary intelligence on inquiry, which, if pursued, would lead to such discovery. Hollenbeck v. Guardian Nat. Life Ins. Co., 144 Neb. 684, 14 N.W.2d 330 (1944); Burchmore v. Byllesby & Co., 140 Neb. 603, 1 N.W.2d 327 (1941); Baxter v. National Mtg. Loan Co., 128 Neb. 537, 259 N.W. 630 (1935); Branham v. Ayers, 126 Neb. 688, 254 N.W. 259 (1934).In a bill of interpleader, a defendant is chargeable with notice of a cross-petition charging fraud filed against him by another defendant before answer day, and such notice may prevent the statute from running against the claim set up in the cross-petition. Provident Savings & Loan Assn. v. Booth, 138 Neb. 424, 293 N.W. 293 (1940).Actions for relief based on mistake and accident are analogous to actions for relief based on fraud, and are limited to four years. Sweley v. Fox, 135 Neb. 780, 284 N.W. 318 (1939).Action against bank officer for fraudulent diversion of assets of bank must be brought within four years of discovery of fraud. Department of Banking v. Hall, 135 Neb. 191, 280 N.W. 844 (1938).Lapse of four years after creditor of corporation acquired knowledge of facts sufficient to require inquiry as to fraud in connection with officer's purchase of corporation's assets barred creditor's action for relief on ground of fraud. Nipp v. Puritan Mfg. Supply & Co., 128 Neb. 459, 259 N.W. 53 (1935).Cause of action for fraud does not accrue until discovery of fraud. Marshall v. Rowe, 126 Neb. 817, 254 N.W. 480 (1934).Petition in action to set aside satisfaction of judgment executed in 1917, on ground of fraud, alleged to have been discovered in 1926, was not demurrable. Marshall v. Rowe, 119 Neb. 591, 230 N.W. 446 (1930).Action must be commenced within four years of discovery. Hanna v. Bergquist, 102 Neb. 658, 168 N.W. 365 (1918); Coad v. Dorsey, 96 Neb. 612, 148 N.W. 155 (1914).Where defendant took title in her own name to lands belonging to herself and her children, statute of limitations commenced to run on date of discovery of fraud. Bell v. Dingwell, 91 Neb. 699, 136 N.W. 1128 (1912).Statute of limitations does not bar the defense of recoupment. Kaup v. Schinstock, 88 Neb. 95, 129 N.W. 184 (1910).If relief is sought on the ground of fraud after four years, plaintiff should allege reason for delay in prosecuting action. Bank of Miller v. Moore, 81 Neb. 566, 116 N.W. 167 (1908).Action to set aside fraudulent conveyance is not tolled by death of the fraudulent grantor. Lesieur v. Simon, 73 Neb. 645, 103 N.W. 302 (1905).Equitable action by heir, who claims deed of ancestor is void on account of duress and fraud, must be brought within four years of accrual of action. Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445 (1904), affirmed on rehearing 71 Neb. 57, 100 N.W. 311 (1904).Where plaintiff was defrauded in purchase of shares of stock of bank, cause of action did not accrue until discovery of fraud. Gerner v. Mosher, 58 Neb. 135, 78 N.W. 384 (1899).Matters appearing of public record operate as constructive notice and constitute discovery of facts with respect to fraud. State ex rel. County Commissioners of Brown County v. Boyd, 49 Neb. 303, 68 N.W. 510 (1896).Relief from the effect of accident or mistake comes within the same rule of limitation as fraud. Ainsfield v. More, 30 Neb. 385, 46 N.W. 828 (1890).Statute begins to run when party learns facts sufficient to suggest fraud. Wright v. Davis, 28 Neb. 479, 44 N.W. 490 (1890); Hellman v. Davis, 24 Neb. 793, 40 N.W. 309 (1888).Statute applies to fraud affecting real estate as well as personal property. Kohout v. Thomas, 4 Neb. Unof. 80, 93 N.W. 421 (1903).Where a third-party petition generally involves the title to certain real estate but the specific factual allegations involve fraud and the cause of action clearly seeks relief on the ground of fraud, the 4-year statute of limitations under this section applies rather than the 10-year statute of limitations found in section 25-202, involving recovery of the title or possession of lands. McGinley v. McGinley, 7 Neb. App. 410, 583 N.W.2d 77 (1998).Where action for fraud is commenced more than four years after fraudulent acts occurred, burden is on plaintiff to allege and prove that fraud was not discovered until within statutory period. Brictson v. Woodrough, 164 F.2d 107 (8th Cir. 1947).Four-year Nebraska limitations statute on fraud could not commence to run until reinsurers were informed of extent of reinsured's misrepresentations regarding size of unearned premium portfolio, existence of excess and special risks department, and agent's status as managing general agent. Calvert Fire Ins. Co. v. Unigard Mut. Ins. Co., 526 F.Supp. 623 (D. Neb. 1980).3. Real propertyWhere a covenant against encumbrances and covenants of warranty or quiet enjoyment appear in the same instrument, they are separate and independent covenants and one does not embrace the other. Cape Co. v. Wiebe, 196 Neb. 204, 241 N.W.2d 830 (1976).Statute of limitations did not begin to run against a remainderman until knowledge was brought home to him that another was claiming title adversely. Graff v. Graff, 179 Neb. 345, 138 N.W.2d 644 (1965).Actions for slander of title are not governed by this section. Norton v. Kanouff, 165 Neb. 435, 86 N.W.2d 72 (1957).In action to quiet title to easement, an affirmative claim by defendant for damages for land taken is barred by statute of limitations. Dawson County Irrigation Co. v. Stuart, 142 Neb. 428, 6 N.W.2d 602 (1942), vacated on rehearing, 142 Neb. 435, 8 N.W.2d 507 (1943).Where defendant mortgagor in foreclosure proceeding claims damages for alleged misrepresentations by mortgagee, such defense is not barred by statute of limitations though it would be barred in an original action on the same cause of action. Mettlen v. Sandoz, 131 Neb. 625, 269 N.W. 98 (1936).Whether fraud by misrepresentation in real estate trade should have been discovered within limitation period was for jury. Vrbsky v. Arendt, 119 Neb. 443, 229 N.W. 337 (1930).Statute may run in favor of one in possession of land so as to bar claim for rents and profits beyond period of limitation. Davis v. Davis, 112 Neb. 178, 199 N.W. 113 (1924).Statute does not run against action of rescission of exchange of lands until discovery of fraud. Carson v. Greeley, 107 Neb. 609, 187 N.W. 47 (1922).Action to remove cloud on title to real estate, created by recorded deed, must be brought within four years after defendant took possession claiming title under deed. Dringman v. Keith, 93 Neb. 180, 139 N.W. 1044 (1913); Dringman v. Keith, 86 Neb. 476, 125 N.W. 1080 (1910).Fraudulent deed recorded is not of itself sufficient to charge parties with notice. Forsyth v. Easterday, 63 Neb. 887, 89 N.W. 407 (1902); Gillespie v. Cooper, 36 Neb. 775, 55 N.W. 302 (1893), overruled in Jones v. Danforth, 71 Neb. 722, 99 N.W. 495 (1904).4. TrustsThis section is the applicable statute of limitations with regard to the establishment of a constructive trust on personal property. Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002).The statute of limitations does not begin to run in case of a resulting trust until trustee clearly repudiates his trust, and the time it commences to run must be determined upon facts in each case. Jirka v. Prior, 196 Neb. 416, 243 N.W.2d 754 (1976).Statute does not begin to run against an action to restore beneficial interests in land under resulting trust until trustee denies the interest of the beneficiaries. Windle v. Kelly, 135 Neb. 143, 280 N.W. 445 (1938).Where trustee, through himself as president of bank, purchased with trust funds valueless notes from bank and concealed transactions, running of statute was tolled. First Trust Co. of Lincoln v. Exchange Bank, 126 Neb. 856, 254 N.W. 569 (1934).Statute runs in favor of trustee ex maleficio from time of discovery of fraud. Abbott v. Wagner, 108 Neb. 359, 188 N.W. 113 (1922).5. Damages or injuryA claim for damages caused by a continuing tort can be maintained for injuries caused by conduct occurring within the statutory limitations period. When there are continuing or repeated wrongs that are capable of being terminated, a claim accrues every day the wrong continues or each time it is repeated, the result being that a plaintiff is only barred from recovering damages that were ascertainable prior to the statutory period preceding the lawsuit. Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 (2007).This statute of limitations applies to actions allegedly arising under 42 U.S.C. section 1983. Bauers v. City of Lincoln, 245 Neb. 632, 514 N.W.2d 625 (1994).Under this section, plaintiff had four years from date of damage to file product liability action. New product liability statute of limitations appears at section 25-224. Morris v. Chrysler Corp., 208 Neb. 341, 303 N.W.2d 500 (1981).An action grounded in tort must be commenced within four years of the occurrence of the event giving rise to the cause of action. Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979).Where defendant, which was plaintiff's insurance carrier, had made no payment to plaintiff for damage caused by a third party, it had no duty to sue as subrogee, and its failure to do so before the statute of limitations ran did not make it liable. Schmer v. Hawkeye-Security Ins. Co., 194 Neb. 94, 230 N.W.2d 216 (1975).An action for an injury hereunder accrues when the damage occurs and not when plaintiff discovers cause of the damage. Omaha Paper Stock Co., Inc. v. Martin K. Eby Constr. Co., Inc., 193 Neb. 848, 230 N.W.2d 87 (1975).Recovery for loss of crops was limited to period of four years before action was brought. Wischmann v. Raikes, 168 Neb. 728, 97 N.W.2d 551 (1959).Damages to growing crops from floodwaters are limited to period commencing four years before commencement of action. Wischmann v. Raikes, 167 Neb. 251, 92 N.W.2d 708 (1958).Where intention to inflict injury is entirely lacking, action in tort may be brought within four years. Newman v. Christensen, 149 Neb. 471, 31 N.W.2d 417 (1948).Right to damages for obstruction of a stream by an insufficient culvert or drain does not accrue when the structure is built but when the overflow actually results. Schmutte v. State, 147 Neb. 193, 22 N.W.2d 691 (1946).Action for damages for alienation of affections was not barred by statute of limitations. Baltzly v. Gruenig, 127 Neb. 520, 256 N.W. 4 (1934).In actions for tortious interference with a business relationship, the statute of limitations under this section begins to run when the injury actually occurs. Additionally, this section does not provide for a discovery rule for tortious interference. Under this section, a claim for damages based on intentional interference with a contractual relationship accrues when the subject contract is breached, regardless of when the defendant supposedly induced the breach. Hroch v. Farmland, 4 Neb. App. 709, 548 N.W.2d 367 (1996).Husband's action for alienation of affection accrues when wife leaves home and severs relationship, and the limitations period is not extended by the fact that the husband does not give up on the possibility of renewal of relationship until later, and thus suffers continuing damages. Mattice v. Messer, 493 F.2d 498 (8th Cir. 1974).In tort action for occupational disease, statute begins to run when employee acquires knowledge of compensable injury. Sylvania Electric Products, Inc. v. Barker, 228 F.2d 842 (1st Cir. 1955).Where buyer sued to recover on substitute arbitrator's award because grain delivered did not equal sample, but creditors for whose benefit debtor's grain was being sold refused to be bound by agent's unauthorized appointment of substitute, claim for damages in amended petition was not barred by statute of limitations as change in character of relief sought did not prevent original petition from tolling statute. Otoe County National Bank v. Delaney, 88 F.2d 238 (8th Cir. 1937).Statute of limitations was not tolled by absence from state of alleged tort-feasor, a California resident who was involved in automobile accident within the state, if at all times following accident California resident could be sued in the state by virtue of nonresident motor vehicle statute. Gatliff v. Little Audrey's Transportation Co., Inc., 317 F.Supp. 1117 (D. Neb. 1970).6. MiscellaneousThis section applies to counterclaims when read in conjunction with sections 25-201 and 25-217 and the rule that a counterclaim must be an existing, valid, and enforceable cause of action. However, whether a counterclaim is barred by this section is determined by the date the related petition was filed, rather than the date the counterclaim was filed. Becker v. Hobbs, 256 Neb. 432, 590 N.W.2d 360 (1999)."Discovery," as used in this statute, means that an individual acquires knowledge of a fact which existed but was previously unknown to the discoverer. If a petition challenged under the statute of limitations facially shows that a cause of action is barred by the statute, a plaintiff must allege facts sufficient to avoid the bar of the statute and must prove those facts at trial; but if a petition does not disclose on its face that an action is barred by the statute of limitations, the defendant must plead and prove the statute as an affirmative defense. Broekemeier Ford v. Clatanoff, 240 Neb. 265, 481 N.W.2d 416 (1992).The filing of a petition does not toll the running of this statute of limitations for the purpose of bringing subsequent actions on the same set of facts. Sluka v. Herman, 229 Neb. 200, 425 N.W.2d 891 (1988).This statute provides the applicable statute of limitations for actions for mutual mistake. The statute of limitations begins to run when mutual mistake was discoverable by reasonable diligence. Newton v. Brown, 222 Neb. 605, 386 N.W.2d 424 (1986).The point at which a statute of limitations commences to run must be determined from the facts of each case; a cause of action accrues, and the statute of limitations begins to run, when the aggrieved party has the right to institute and maintain suit, even though such plaintiff may be ignorant of the existence of the cause of action. Mangan v. Landen, 219 Neb. 643, 365 N.W.2d 453 (1985).Four-year general statute of limitations applies to employer liable as joint tort-feasor with employee killed in accident, even if plaintiff's claim against estate of employee was filed out of time and barred by two-year nonclaim statute. S.M.S. Trucking Co. v. Midland Vet, Inc., 186 Neb. 647, 185 N.W.2d 667 (1971).This section is not applicable to misrepresentation as to nature and cause of patient's condition in action against physician. Stacey v. Pantano, 177 Neb. 694, 131 N.W.2d 163 (1964).Where petition was amended to change cause of action from action on contract to action based on tort, statute of limitations continued to run until filing of amended petition. Blair v. Klein, 176 Neb. 245, 125 N.W.2d 669 (1964).The defense of the statute of limitations is a personal privilege of the debtor, and may be waived. Gurske v. Strate, 165 Neb. 882, 87 N.W.2d 703 (1958).Where answer pleaded defense of statute of limitations, instruction thereon was required. Harsche v. Czyz, 157 Neb. 699, 61 N.W.2d 265 (1953).Limitation in surety bond, that any loss for which claim is made must be discovered during term of bond or within fifteen months after termination of surety's liability as to the employee involved is not void as attempting to shorten by contract the time within which action for fraud can be brought. Dunbar v. National Surety Corporation, 140 Neb. 833, 2 N.W.2d 116 (1942).Under the United States Constitution, conferring on Congress power to pass uniform laws on the subject of bankruptcy, the two-year statute of limitations in the bankruptcy act supersedes all statutes of limitations passed by the various states. Engebretson v. West, 133 Neb. 846, 277 N.W. 433 (1938).Second amended petition, introducing new causes of action which are barred by statute of limitations, cannot be basis for recovery against defendant. Rule does not apply to allegations of original petition, filed before statute had run. Streight v. First Trust Co. of Omaha, 133 Neb. 340, 275 N.W. 278 (1937).Actions which in substance and effect are actions for money had and received, in the absence of specific statute of limitations, must be brought within four years from receipt of the money. Torgeson v. Department of Trade and Commerce, 127 Neb. 49, 254 N.W. 740 (1934).Bank receiver's suit to recover bank's assets used to repay deposit of bankers' conservation fund was barred by statute of limitations. Torgeson v. Department of Trade and Commerce, 127 Neb. 38, 254 N.W. 735 (1934).Statute will not run against action by pledgor to recover collaterals until liability is determined or repudiation of trust by pledgee. Parker v. First Nat. Bank of Omaha, 118 Neb. 96, 223 N.W. 651 (1929).Statute does not begin to run against action for money had and received, where suit is for recovery of payment on land, until contract is terminated. Thiele v. Carey, 85 Neb. 454, 123 N.W. 442 (1909).Time of commencing action for support of child born out of wedlock stated. Denham v. Watson, 24 Neb. 779, 40 N.W. 308 (1888).Section 25-222 is a specific exception as to professional negligence from the normal four-year statute of limitations. Horn v. Burns & Roe, 536 F.2d 251 (8th Cir. 1976).While a party is prevented from enforcing a legal right by some paramount authority, the statute of limitations ordinarily is not treated as running against the right. Yoder v. Nu-Enamel Corporation, 145 F.2d 420 (8th Cir. 1944).Tort claim in state court against estate of deceased was barred by statute of limitations, but a federal diversity action against representatives of the estate not barred for four-years. Williams v. Hawkeye-Security Ins. Co., 428 F.Supp. 976 (D. Neb. 1977).

25-208 Actions for libel, slander, malpractice, and recovery of tax.

25-208. Actions for libel, slander, malpractice, and recovery of tax.The following actions can only be brought within the periods stated in this section: Within one year, an action for libel or slander; and within two years, an action for malpractice which is not otherwise specifically limited by statute.In the absence of any other shorter applicable statute of limitations, any action for the recovery of any excise or other tax which has been collected under any statute of the State of Nebraska and which has been finally adjudged to be unconstitutional shall be brought within one year after the final decision of the court declaring it to be unconstitutional. This section shall not apply to any action for the recovery of a property tax.The changes made to this section by Laws 2000, LB 921, shall apply to causes of action accruing on and after July 13, 2000. SourceR.S.1867, Code § 13, p. 395; R.S.1913, § 7570; C.S.1922, § 8513; C.S.1929, § 20-208; Laws 1933, c. 42, § 1, p. 248; Laws 1937, c. 43, § 1, p. 187; C.S.Supp.,1941, § 20-208; R.S.1943, § 25-208; Laws 1972, LB 1132, § 2; Laws 1991, LB 829, § 2; Laws 2000, LB 921, § 2.Annotations1. Libel and slander2. Assault and battery3. Malicious prosecution4. Penalty or forfeiture5. Malpractice6. Miscellaneous1. Libel and slanderPublication of slander occurs when the words are spoken to and understood by a third party to pertain to the individual slandered. The statute of limitations on slander under this section begins to run from publication and will not be tolled unless the slanderer wrongfully concealed a material fact necessary for the accrual of the cause of action. Mere ignorance concerning the alleged slanderer's identity will not toll the statute of limitations. Lathrop v. McBride, 209 Neb. 351, 307 N.W.2d 804 (1981).The statute of limitations in a libel action commences to run upon publication of the defamatory matter upon which action is based. Patterson v. Renstrom, 188 Neb. 78, 195 N.W.2d 193 (1972).Action for damages for wrongfully encumbering plaintiff's title to real estate is a slander of title action and barred in one year. Gentry v. State, 174 Neb. 515, 118 N.W.2d 643 (1962).Action for libel must be commenced within one year of publication of defamatory matter. Tennyson v. Werthman, 167 Neb. 208, 92 N.W.2d 559 (1958).Actions for slander of title must be brought within one year. Norton v. Kanouff, 165 Neb. 435, 86 N.W.2d 72 (1957).Action for libel must be brought within one year. Reller v. Ankeny, 160 Neb. 47, 68 N.W.2d 686 (1955).A cause of action for libel or slander accrues on the date of publication of the defamatory matter. Publication of an allegedly libelous statement occurs when it is communicated to someone other than the person defamed. Vergara v. Lopez-Vasquez, 1 Neb. App. 1141, 510 N.W.2d 550 (1993).2. Assault and batteryAction for a battery is founded upon an intentionally administered injury to the person. Newman v. Christensen, 149 Neb. 471, 31 N.W.2d 417 (1948).Action by husband for damages for assault and battery committed upon wife is barred unless brought within one year after the cause of action accrued. Markel v. Glassmeyer, 137 Neb. 243, 288 N.W. 821 (1939).Action of damages for assault and battery must be brought within one year. Borchert v. Bash, 97 Neb. 593, 150 N.W. 830 (1915).3. Malicious prosecutionStatute does not begin to run in a case of malicious prosecution until the criminal case is dismissed, or the prosecution otherwise finally terminated. Hackler v. Miller, 79 Neb. 209, 114 N.W. 274 (1907).4. Penalty or forfeiturePlaintiffs' causes of action for refunds of taxes paid in years prior to decision determining illegality of tax were barred by statute of limitations. Wats Mktg. of America v. Boehm, 242 Neb. 252, 494 N.W.2d 527 (1993).A statute that permits injured party to recover treble damages authorizes the collection of a penalty. Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684 (1960).Action to recover amounts paid under Industrial Loan Act was not one to recover a penalty. Jourdon v. Commonwealth Co., 170 Neb. 919, 104 N.W.2d 681 (1960).Action against stockholder of a corporation for failure of corporation to publish annually notice of existing indebtedness is penal in nature, and must be brought within one year after cause of action accrued. Hoffman v. Geiger, 134 Neb. 643, 279 N.W. 350 (1938), reversed on rehearing 135 Neb. 349, 281 N.W. 625 (1938).Action against bank director for participating in or knowingly assenting to an excessive loan is not penal, and is not governed as to statute of limitations by this section. Department of Banking v. McMullen, 134 Neb. 338, 278 N.W. 551 (1938).Liability of stockholder, under Article XII, section 4, Constitution of Nebraska, is not a penalty, and is not barred in one year under this section. Bourne v. Baer, 107 Neb. 255, 185 N.W. 408 (1921).Action for statutory penalty is barred if not brought in one year from date of accrual. Sheibley v. Cooper, 79 Neb. 232, 112 N.W. 363 (1907), rehearing denied 79 Neb. 336, 113 N.W. 626 (1907).5. MalpracticeA single professional relationship will not be separated into various parts for the purpose of applying to one part of that relationship the fraud period of limitations found in section 25-207 and to another part the malpractice period of limitations found in this section. St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993).When an issue of consent to medical treatment is raised, the controlling statute of limitations is that for malpractice actions. Jones v. Malloy, 226 Neb. 559, 412 N.W.2d 837 (1987).A cause of action for medical malpractice does not accrue until the patient discovers, or in the exercise of reasonable diligence should have discovered, the malpractice. Taylor v. Karrer, 196 Neb. 581, 244 N.W.2d 201 (1976).Special two-year statute of limitations controlled action against doctor based on erroneous blood typing by his employee. Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976).In a malpractice action, the limitation does not begin to run until the patient discovers or with reasonable diligence could have discovered the injury, and a patient has used reasonable diligence where she fails to discover because of the surgeon's repeated assurances of recovery and recommendations for therapy to aid in recovery. Toman v. Creighton Memorial St. Joseph's Hosp., Inc., 191 Neb. 751, 217 N.W.2d 484 (1974).In a malpractice action against a physician, the statute of limitations does not commence to run until act of malpractice with resulting injury was, or by the use of reasonable diligence could have been, discovered. Acker v. Sorensen, 183 Neb. 866, 165 N.W.2d 74 (1969).Special statute as to malpractice was controlling over general statute of limitations applicable to actions based on fraud. Stacey v. Pantano, 177 Neb. 694, 131 N.W.2d 163 (1964).A cause of action against a physician for failure to remove a foreign object left in the body of a patient does not accrue until the patient discovers, or in the exercise of reasonable diligence should have discovered, the presence of the foreign object. Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962).Action in a malpractice suit does not commence to run until the treatment ends. Williams v. Elias, 140 Neb. 656, 1 N.W.2d 121 (1941).6. MiscellaneousThe 1-year discovery exception provided for in this section only applies if the injured party did not know or could not reasonably have discovered the existence of the cause of action within the time period provided for in this section. The 1-year discovery exception provided for in section 25-222 does not apply in actions governed under this section if the injured party knew or could reasonably have discovered the cause of action within the time set forth in this section. Berntsen v. Coopers & Lybrand, 249 Neb. 904, 546 N.W.2d 310 (1996).The discovery doctrine set out in section 25-222 permitting commencement of the action within 1 year from discovery, if discovery could not reasonably have occurred sooner, applies to the period of limitations set forth in this section. St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993).Action to recover amount paid by city on void contract was not barred under this section. Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208 (1959).Section 25-219 was applicable to federal civil rights claim of former guidance counselor in action against school district on allegations dismissal was due to his race and his exercise of First Amendment rights. Chambers v. Omaha Public School Dist., 536 F.2d 222 (8th Cir. 1976).

25-209 Actions on official or judicial bonds.

25-209. Actions on official or judicial bonds.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. SourceR.S.1867, Code § 14, p. 396; R.S.1913, § 7571; C.S.1922, § 8514; C.S.1929, § 20-209; R.S.1943, § 25-209.Annotations1. Official bonds2. Miscellaneous1. Official bondsAction on county treasurer's bond was commenced within time permitted by this section. City of Bellevue v. Western Surety Co., 184 Neb. 678, 171 N.W.2d 772 (1969).Bond of chairman of Board of Public Works is an official bond within meaning of this section. Neisius v. Henry, 143 Neb. 273, 9 N.W.2d 163 (1943).In suit against city officer and surety on bond to recover excess salary paid, all amounts paid more than ten years prior to date of filing suit are barred. Neisius v. Henry, 142 Neb. 29, 5 N.W.2d 291 (1942).Statute of limitations on action on official bond of clerk of district court is ten years. Thurston County v. Farley, 128 Neb. 756, 260 N.W. 397 (1935).Actions on official bonds may be brought within ten years after the cause of action accrues. United States Fidelity & Guaranty Co. v. McLaughlin, 76 Neb. 310, 109 N.W. 390 (1906).Action on official bond is not barred until expiration of ten years from time action accrues. Bantley v. Baker, 61 Neb. 92, 84 N.W. 603 (1900).Action on official bond of county judge is barred in ten years after cause of action accrued. Chicago, B. & Q. Ry. Co. v. Philpott, 56 Neb. 212, 76 N.W. 550 (1898).County treasurers are within the general designation "any other officer," and actions upon their bonds are brought within the provisions of this section. Alexander v. Overton, 22 Neb. 227, 34 N.W. 629 (1887).2. MiscellaneousThe statute of limitations on action on statutorily required grain dealer's bond is 10 years. Stock v. Meissner, 217 Neb. 56, 348 N.W.2d 426 (1984).Where bond was not applicable on the date the plaintiff's cause of action accrued, this section was inapplicable. Stock v. Meissner, 209 Neb. 636, 309 N.W.2d 86 (1981).The limitation does not begin to run on a guardian's bond until he has obtained approval of his final account and been discharged by probate court. Sherwood v. Merchants Mut. Bonding Co., 193 Neb. 262, 226 N.W.2d 761 (1975).Where amended petition introduces new causes of action which are barred by statute of limitations, such new allegations cannot be the basis of a recovery, but this rule does not apply to allegations contained in the original petition which are repeated in the amended petition. Streight v. First Trust Co. of Omaha, 133 Neb. 340, 275 N.W. 278 (1937).Action accrues on official bond of a county judge when he fails to pay to his successor in office, on the expiration of his term, any money in his possession due to an heir or other person, which has not been paid to the person entitled thereto. Ericsson v. Streitz, 132 Neb. 692, 273 N.W. 17 (1937).Action on appeal bond is governed by this section and is not barred until after ten years. Crum v. Johnson, 3 Neb. Unof. 826, 92 N.W. 1054 (1902).

25-210 Actions against sureties on guardian's bond.

25-210. Actions against sureties on guardian's bond.No action shall be maintained against the sureties in any bond given by a guardian unless it be commenced within four years from the time when the guardian shall have been discharged; Provided, if at the time of such discharge the person entitled to bring such action shall be out of the state, or under any legal disability to sue, the action may be commenced at any time within five years after the return of such person to the state, or after such disability shall be removed. SourceR.S.1867, Code § 32, p. 185; R.S.1913, § 7572; C.S.1922, § 8515; C.S.1929, § 20-210; R.S.1943, § 25-210.AnnotationsThe limitation herein does not begin to run until the guardian has obtained approval of his final account and been discharged by probate court. Sherwood v. Merchants Mut. Bonding Co., 193 Neb. 262, 226 N.W.2d 761 (1975).As to sureties on guardian's bond, statute of limitations begins to run from date guardian was discharged and not from time when cause of action accrued upon final settlement. Medow v. Riggert, 132 Neb. 429, 272 N.W. 238 (1937).Guardian is "discharged," within meaning of this section, when ward dies. Hughes v. Langdon, 111 Neb. 508, 196 N.W. 915 (1924).Action on guardian's bond accrues to ward when amount is ascertained by county court on final settlement. Bisbee v. Gleason, 21 Neb. 534, 32 N.W. 578 (1887).

25-211 Actions on contracts by reason of failure or want of consideration.

25-211. Actions on contracts by reason of failure or want 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. SourceR.S.1867, Code § 15, p. 396; R.S.1913, § 7573; C.S.1922, § 8516; C.S.1929, § 20-211; R.S.1943, § 25-211.AnnotationsStatute of limitations will commence to run against the obligation evidenced by a warrant not entitled to registration from the date of last payment upon it. Pollock v. Consolidated School District No. 65 of Perkins County, 138 Neb. 315, 293 N.W. 108 (1940).Statute of limitations on implied obligation to repay money borrowed by issuance of void warrant, where payments have been made thereon, commences to run on date of last payment. Nebraska State Bank Liquidation Association v. Village of Burton, 134 Neb. 623, 279 N.W. 319 (1938).Contract sued on herein is not barred when commenced within four years from time of death of the father. Macfarland v. Callahan, 102 Neb. 54, 165 N.W. 889 (1917).Action to recover on an implied assumpsit is barred in four years. Markey v. School Dist. No. 18 of Sheridan County, 58 Neb. 479, 78 N.W. 932 (1899).

25-212 Actions not specified.

25-212. Actions not specified.An action for relief not hereinbefore provided for can only be brought within four years after the cause of action shall have accrued. SourceR.S.1867, Code § 16, p. 396; R.S.1913, § 7574; C.S.1922, § 8517; C.S.1929, § 20-212; R.S.1943, § 25-212.Annotations1. Accrual of cause of action2. Specific actions included3. Miscellaneous1. Accrual of cause of actionGenerally, a suit to declare a contract void, which if void was void at its inception, must be commenced within four years of the execution of the contract. Lake v. Piper, Jaffray & Hopwood Inc., 219 Neb. 731, 365 N.W.2d 838 (1985).The point at which a statute of limitations commences to run must be determined from the facts of each case; a cause of action accrues, and the statute of limitations begins to run, when the aggrieved party has the right to institute and maintain suit, even though such plaintiff may be ignorant of the existence of the cause of action. Mangan v. Landen, 219 Neb. 643, 365 N.W.2d 453 (1985).Where there is a continuous running account, statute of limitations commences to run from date of last item. Lewis v. Hiskey, 166 Neb. 402, 89 N.W.2d 132 (1958).Where demand for the repayment of money paid has been made, the statute of limitations as to when the taxpayer may sue begins to run at the expiration of the ninety-day period in which to make the refund. Loup River Public Power Dist. v. County of Platte, 144 Neb. 600, 14 N.W.2d 210 (1944).Action to recover from county amount paid for void tax sale certificate accrues when tax sale certificate has been declared void by court of competent jurisdiction, and action must be brought within four years thereafter. McDonald v. County of Lincoln, 141 Neb. 741, 4 N.W.2d 903 (1942).Mandamus to compel performance of continuing duty by public officer is not barred by this section, even though performance of duty may have been compelled more than four years prior to bringing of a suit. State ex rel. Cashman v. Carmean, 138 Neb. 819, 295 N.W. 801 (1941).Action on official bond of county judge accrues on expiration of his term, when he fails to pay to his successor money in his possession due to an heir or other person. Ericsson v. Streitz, 132 Neb. 692, 273 N.W. 17 (1937).Limitations in action for alienation of affections begin to run when affections are alienated and husband abandons wife. Von Dorn v. Rubin, 104 Neb. 465, 177 N.W. 653 (1920).Husband's action for alienation of affection accrues when wife leaves home and severs relationship, and the limitations period is not extended by the fact that the husband does not give up on the possibility of renewal of relationship until later, and thus suffers continuing damages. Mattice v. Messer, 493 F.2d 498 (8th Cir. 1974).2. Specific actions includedNonconsent of irrigation company to transfer of water right was barred by statute. Vonburg v. Farmers Irrigation District, 132 Neb. 12, 270 N.W. 835 (1937).In civil action to recover fees withheld by clerk of district court, statute of limitations is four years. Thurston County v. Farley, 128 Neb. 756, 260 N.W. 397 (1935).Action for damages for alienation of affections was not barred by statute of limitations. Baltzly v. Gruenig, 127 Neb. 520, 256 N.W. 4 (1934).Section is applicable to civil actions only. Mercer v. City of Omaha, 76 Neb. 289, 107 N.W. 565 (1906).Action to obtain a new trial in which a judgment was rendered on the ground of unavoidable casualty and misfortune may be brought within four years. Ritchey v. Seeley, 73 Neb. 164, 102 N.W. 256 (1905).State demands are not barred. Streitz v. Hartman, 35 Neb. 406, 53 N.W. 215 (1892).A proceeding by mandamus is barred by the statute of limitations at the expiration of four years from the time the right to the writ accrued. State ex rel. Gage County v. King, 34 Neb. 196, 51 N.W. 754 (1892); State ex rel. Chem. Nat. Bank v. School District No. 9 of Sherman County, 30 Neb. 520, 46 N.W. 613 (1890).Suit against employer to enforce contract made in 1893 to deliver corporate stock was barred by this and other statutes of limitations, in view of lapse of time, etc. Reed v. Fairmont Creamery Co., 37 F.2d 332 (8th Cir. 1929).3. MiscellaneousThe defense of the statute of limitations may not be raised by a judgment creditor against a mortgagee. Gurske v. Strate, 165 Neb. 882, 87 N.W.2d 703 (1958).Court will not require payment of damages barred by statute of limitations, under maxim that he who comes into equity must do equity. Dawson County Irrigation Co. v. Stuart, 142 Neb. 428, 6 N.W.2d 602 (1942).Actions for relief based on accident and mistake are analogous to actions based on fraud, and are covered by section 25-207. Sweley v. Fox, 135 Neb. 780, 284 N.W. 318 (1939).Where amended petition introduces new causes of action which are barred by statute of limitations, such new allegations cannot be the basis of a recovery, but this rule does not apply to allegations contained in the original petition which are repealed in the amended petition. Streight v. First Trust Co. of Omaha, 133 Neb. 340, 275 N.W. 278 (1937).Amendment of petition to change legal theory of action, introducing new cause of action long since barred by statute of limitations, is not allowable. Hensley v. Chicago, St. P., M. & O. R. Co., 126 Neb. 579, 254 N.W. 426 (1934).Intent of Legislature was to cover every form of action not otherwise provided for. Beall v. McMenemy, 63 Neb. 70, 88 N.W. 134 (1901).Section 43-666, R.R.S.1943, is not sufficiently analogous to 20 U.S.C. section 1415 for its statute of limitation to apply to actions under that federal statute. However, the statute of limitations under either section 25-212 or 25-219, R.R.S.1943, appears to be more appropriate. Monahan v. State of Neb., 491 F.Supp. 1074 (D. Neb. 1980).

25-213 Tolling of statutes of limitation; when.

25-213. Tolling of statutes of limitation; when.Except as provided in sections 76-288 to 76-298, if a person entitled to bring any action mentioned in Chapter 25, the Political Subdivisions Tort Claims Act, the Nebraska Hospital-Medical Liability Act, the State Contract Claims Act, the State Tort Claims Act, or the State Miscellaneous Claims Act, except for a penalty or forfeiture, for the recovery of the title or possession of lands, tenements, or hereditaments, or for the foreclosure of mortgages thereon, is, at the time the cause of action accrued, within the age of twenty years, a person with a mental disorder, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by Chapter 25 after such disability is removed. For the recovery of the title or possession of lands, tenements, or hereditaments or for the foreclosure of mortgages thereon, every such person shall be entitled to bring such action within twenty years from the accrual thereof but in no case longer than ten years after the termination of such disability. Absence from the state, death, or other disability shall not operate to extend the period within which actions in rem are to be commenced by and against a nonresident or his or her representative. SourceR.S.1867, Code § 17, p. 396; R.S.1913, § 7576; C.S.1922, § 8519; Laws 1925, c. 64, § 2, p. 221; C.S.1929, § 20-213; R.S.1943, § 25-213; Laws 1947, c. 243, § 12, p. 766; Laws 1972, LB 1049, § 1; Laws 1974, LB 949, § 2; Laws 1984, LB 692, § 2; Laws 1986, LB 1177, § 5; Laws 1988, LB 864, § 5; Laws 2007, LB339, § 1. Cross ReferencesNebraska Hospital-Medical Liability Act, see section 44-2855.Political Subdivisions Tort Claims Act, see section 13-901.State Contract Claims Act, see section 81-8,302.State Miscellaneous Claims Act, see section 81-8,294.State Tort Claims Act, see section 81-8,235. Annotations1. Minors2. Mental disabilities3. Nonresidents4. Miscellaneous1. MinorsUnder this section, a person is within the age of 20 years until he or she becomes 21 years old. Carruth v. State, 271 Neb. 433, 712 N.W.2d 575 (2006).Subsection (2) of section 25-224 is not tolled by a person's status as a minor pursuant to this section. Budler v. General Motors Corp., 268 Neb. 998, 689 N.W.2d 847 (2004).One is within the age of 20 for purposes of this section until he or she becomes 21 years old. Brown v. Kindred, 259 Neb. 95, 608 N.W.2d 577 (2000).Mere fact of imprisonment does not toll the statute of limitations for a medical malpractice action. Gordon v. Connell, 249 Neb. 769, 545 N.W.2d 722 (1996).One is "within the age of twenty years" until he or she becomes 21 years old. Lawson v. Ford Motor Co., 225 Neb. 725, 408 N.W.2d 256 (1987).Suspension of the statute of limitations in accordance with this section inures to the exclusive and personal benefit of the infant, and not to the benefit of the infant's parent. Macku v. Drackett Products Co., 216 Neb. 176, 343 N.W.2d 58 (1984).Workmen's Compensation Act makes no exception in favor of minor dependents as to limitation for filing claims, and action brought by minors under this act are governed by its provisions and not by general statute of limitations. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139 (1938).Statute is not tolled by minority of heirs where it commenced to run in lifetime of ancestor. McNeill v. Schumaker, 94 Neb. 544, 143 N.W. 805 (1913).Minor may bring action to recover interest in real estate within ten years after arriving at majority. Albers v. Kozeluh, 68 Neb. 522, 94 N.W. 521 (1903), former judgment adhered to 68 Neb. 529, 97 N.W. 646 (1903).Time for bringing of action by minor against county for defect in highway under special statute is not extended by this section. Swaney v. Gage County, 64 Neb. 627, 90 N.W. 542 (1902).This section tolls the running of the time limitation under § 25-222 until an infant reaches the age of majority. Hatfield v. Bishop Clarkson Memorial Hosp., 679 F.2d 1258 (8th Cir. 1982).2. Mental disabilitiesInsanity means such condition of mental derangement which actually prevents the sufferer from understanding and protecting his or her legal rights. Sacchi v. Blodig, 215 Neb. 817, 341 N.W.2d 326 (1983).In the case of recovery of real estate this section gives an incompetent ten years after disability is removed to bring action. In re Estate of Montgomery, 133 Neb. 153, 274 N.W. 487 (1937).Statute does not commence to run against the owner of real property confined in an asylum for the insane at the time of a tax lien foreclosure, and who continues to be mentally incompetent after his discharge from the hospital, until he has been sufficiently restored to his mental powers to be able to comprehend that he was owner of the property and able to take some action to protect his rights with reference thereto. Walter v. Union Real Estate Co., 107 Neb. 144, 185 N.W. 323 (1921).Fact that statute tolls limitation period during insanity does not deny prosecution of action for insane person by guardian during period of insanity. Wirth v. Weigand, 85 Neb. 115, 122 N.W. 714 (1909).A person with a mental disorder is one who suffers from a condition of mental derangement which actually prevents the sufferer from understanding his or her legal rights or from instituting legal action. Vergara v. Lopez-Vasquez, 1 Neb. App. 1141, 510 N.W.2d 550 (1993).3. NonresidentsAbsence from state will not extend time in which foreclosure of real estate mortgage may be brought against nonresident. Brainard v. Hall, 137 Neb. 491, 289 N.W. 845 (1940).Absence from state does not operate to extend the period within which mechanic lien foreclosure shall be commenced. Pickens v. Polk, 42 Neb. 267, 60 N.W. 566 (1894).Absence from state does not extend time for foreclosure of mortgage. Merriam v. Goodlett, 36 Neb. 384, 54 N.W. 686 (1893).4. MiscellaneousPolitical Subdivisions Tort Claims Act including one-year notice of claim requirement and two-year limitation for bringing action held constitutional. Campbell v. City of Lincoln, 195 Neb. 703, 240 N.W.2d 339 (1976).This section does not toll the statutes of limitations for the benefit of executors or administrators. Sherwood v. Merchants Mut. Bonding Co., 193 Neb. 262, 226 N.W.2d 761 (1975).Statute runs against married woman during coverture. Watkins v. Adamson, 113 Neb. 715, 204 N.W. 816 (1925).Courts of equity have inherent powers to refuse relief after undue and inexcusable delay, independent of statute of limitations. Hawley v. Von Lanken, 75 Neb. 597, 106 N.W. 456 (1906).Suit to quiet title is action in rem, within this section. Lantry v. Parker, 37 Neb. 353, 55 N.W. 962 (1893).

25-214 Actions against absconding or absent debtor.

25-214. Actions against absconding or absent debtor.If a cause of action accrues against a person while he or she is out of the state or has absconded or concealed himself or herself, the period limited for the commencement of the action shall not begin to run (1) until he or she comes into the state or (2) while he or she is absconded or concealed. If the person departs from the state or absconds or conceals himself or herself after the cause of action accrues, the time of his or her absence or concealment shall not be computed as any part of the period within which the action must be brought. SourceR.S.1867, Code § 20, p. 396; R.S.1913, § 7577; C.S.1922, § 8520; C.S.1929, § 20-214; R.S.1943, § 25-214; Laws 2006, LB 1115, § 8. Annotations1. Absent debtor2. Absconding debtor3. Miscellaneous1. Absent debtorThe tolling statute does not suspend the statute of limitations when one is absent from the state but nonetheless remains amenable to the service of personal process. Dalition v. Langemeier, 246 Neb. 993, 524 N.W.2d 336 (1994).Petition in action on domestic judgment which appeared to be barred was sufficient to plead facts regarding defendant's absence from state to toll statute as against general demurrer. Farmers & Merchants Bank of Axtell v. Merryman, 126 Neb. 684, 254 N.W. 428 (1934).This section is inapplicable to action for death of plaintiff's intestate, where defendant had been absent from state for more than two years. Gengo v. Mardis, 103 Neb. 164, 170 N.W. 841 (1919).Absence from state does not toll statute where it has been of such a character as to entitle defendant to benefit of statute of another state to which he has removed. Webster v. Davies, 44 Neb. 301, 62 N.W. 484 (1895).Nonresidence will not prevent running of statute on action to quiet title to real estate. Lantry v. Parker, 37 Neb. 353, 55 N.W. 962 (1893).Mere temporary absence does not suspend statute. Blodgett v. Utley, 4 Neb. 25 (1875).Where a person resided in another state, but came to this state each business day where service could have been had on him, he is not absent from the state within the meaning of this section. Webster v. Citizens Bank of Omaha, 2 Neb. Unof., 353, 96 N.W. 118 (1902).Statute of limitations was not tolled by absence from state of alleged tort-feasor, a California resident, if at all times following accident California resident could be sued in the state by virtue of nonresident motor vehicle statute. Gatliff v. Little Audrey's Transportation Co., Inc., 317 F.Supp. 1117 (D. Neb. 1970).2. Absconding debtorNote showing on face that it is outlawed does not render petition demurrable, where plaintiff alleges failure to begin action within five years was due to absconding of defendant. Cummings v. Keating & Co., 103 Neb. 453, 172 N.W. 358 (1919).Concealment or absconding must be such as prevents bringing of action in this state. Talcott v. Bennett, 49 Neb. 569, 68 N.W. 931 (1896).3. MiscellaneousThis section was not applicable to an application for modification of alimony under section 42-365 because that section concerns not the commencement of an action, but, rather, upon what an order of modification operates. Hamilton v. Hamilton, 242 Neb. 687, 496 N.W.2d 507 (1993).Where debtor comes into state openly and stays sufficient period to afford requisite time for service of summons, he has "come into the state" even though his coming was temporary. Fort Collins Nat. Bank v. Strachan, 102 Neb. 233, 166 N.W. 553 (1918).Statute does not run in favor of a foreign corporation while service of summons cannot be had upon it in this state. Ball Engine Co. v. Bennett Co., 98 Neb. 290, 152 N.W. 550 (1915).Temporary absences cannot be aggregated together to prolong statute. Hedges v. Roach, 16 Neb. 673, 21 N.W. 404 (1884).Debtor must reside for full statutory time within state before action is barred. Edgerton v. Wachter, 9 Neb. 500, 4 N.W. 85 (1880).

25-215 Repealed. Laws 2006, LB 1115, § 47.

25-215. Repealed. Laws 2006, LB 1115, § 47.

25-216 Part payment; acknowledgment of debt; effect upon accrual.

25-216. Part payment; acknowledgment of debt; effect upon accrual.In any cause founded on contract, when any part of the principal or interest shall have been voluntarily 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; Provided, that the provisions of this section shall not be applicable to real estate mortgages which have become barred under the provisions of section 25-202 as against subsequent encumbrancers and purchasers for value. SourceR.S.1867, Code § 22, p. 397; R.S.1913, § 7579; C.S.1922, § 8522; C.S.1929, § 20-216; Laws 1941, c. 35, § 2, p. 146; C.S.Supp.,1941, § 20-216; R.S.1943, § 25-216.Annotations1. Part payment2. Acknowledgment of debt3. Miscellaneous1. Part paymentPart payment of a debt does not have the effect of tolling the statute of limitations, unless payment is made under circumstances which justify the inference that the debtor recognizes the whole debt as an existing liability. T.S. McShane Co., Inc. v. Dominion Constr. Co., 203 Neb. 318, 278 N.W.2d 596 (1979).Where there was no proof of actual payment, endorsement of a payment placed on note by claimant's secretary did not operate to toll statute. In re Estate of Anderson, 148 Neb. 436, 27 N.W.2d 632 (1947).Under oral contract of hire, superseded by written contract, voluntary part payment of salary will operate to toll statute of limitations. Price v. Platte Valley Public Power & Irr. Dist., 139 Neb. 787, 298 N.W. 746 (1941).Where, after death of maker of note, a bank applies a balance in checking account to the credit of the maker as a payment upon the note, the payment thus made is not voluntary and will not toll the running of the statute. In re McEachen's Estate, 139 Neb. 250, 297 N.W. 153 (1941).Partial payment of principal or interest on promissory note by one joint maker with knowledge and consent of the other, out of funds in which they are jointly interested, tolls statute as to both. Kienke v. Hudson, 126 Neb. 551, 253 N.W. 687 (1934).Running of statute of limitations on a contract obligation will be arrested by any voluntary partial payment thereon, made or authorized by debtor. Massachusetts Bonding & Ins. Co. v. Steele, 125 Neb. 7, 248 N.W. 648 (1933).Payment on a note in bar of the statute must be considered as of the time of actual payment, rather than as of the date of the endorsement thereof on the note. In re Estate of Zehner, 124 Neb. 426, 246 N.W. 863 (1933).Part payment of debt or interest thereon tolls statute on mortgage securing debt. Bliss v. Redding, 121 Neb. 69, 236 N.W. 181 (1931).Voluntary part payment will toll statute of limitations, or will revive debt, if same is barred. Blair v. Willman Estate, 105 Neb. 735, 181 N.W. 615 (1921).Payment of interest on note by principal without authority, knowledge or consent of surety, will not stop running of statute of limitations as to surety. Dwire v. Gentry, 95 Neb. 150, 145 N.W. 350 (1914).Part payment of a debt may be made in any property agreed upon by the parties. Brockman v. Ostdiek, 79 Neb. 843, 113 N.W. 529 (1907).Part payment on debt secured by mortgage tolls statute limiting time within which foreclosure may be brought. McLaughlin v. Senne, 78 Neb. 631, 111 N.W. 377 (1907).Payment of dividend on stock held as collateral, applied on note, tolls statute. Bosler v. McShane, 78 Neb. 91, 113 N.W. 998 (1907).Part payment operates to revive a contract debt of its own vigor and not as evidence of an acknowledgment or new promise. Ebersole v. Omaha National Bank, 71 Neb. 778, 99 N.W. 664 (1904).Payment of interest on note tolls statute. Teegarden v. Burton, 62 Neb. 639, 87 N.W. 337 (1901).Payment made on a debtor's note by the sale of his property on execution, or other legal process, is not such part payment within the meaning of this section. Moffitt v. Carr, 48 Neb. 403, 67 N.W. 150 (1896).Payment of dividend by the assignee of an insolvent debtor will not operate to toll the statute. Whitney, Clark & Co. v. Chambers, 17 Neb. 90, 22 N.W. 229 (1885).The receipt and endorsement on a note by the holder of money realized from a collateral left for that purpose will remove the bar of the statute. Sornberger v. Lee, 14 Neb. 193, 15 N.W. 345 (1883).Payment made by one of the joint promisors of a partnership after dissolution of the partnership and without knowledge of other promisor tolls the statute only as to one actually paying. Mayberry v. Willoughby, 5 Neb. 368 (1877).Payment to remove bar of statute must be voluntary and not obtained by subterfuge. Kyger v. Ryley, 2 Neb. 20 (1873).Payment on specific account cannot toll statute on another account. In re Automatic Equipment Mfg. Co., 103 F.Supp. 427 (D. Neb. 1952).2. Acknowledgment of debtA mere reference to a promissory note, although consistent with its existing validity and implying no disposition to question its binding obligation, or a suggestion of some action in reference to it, is not such an acknowledgment as contemplated by the statute. Kotas v. Sorensen, 216 Neb. 648, 345 N.W.2d 1 (1984).An acknowledgment of an executor or administrator does not bind him as a party in his personal capacity. Degmetich v. Beranek, 188 Neb. 659, 199 N.W.2d 8 (1972).Voluntary payment is one that was intentionally and consciously made and accepted. Beacom v. Daley, 164 Neb. 120, 81 N.W.2d 907 (1957).Execution and delivery of real estate mortgage was an acknowledgment in writing of note. Alexanderson v. Wessman, 158 Neb. 614, 64 N.W.2d 306 (1954).A promise to pay a debt or other existing liability in a cause founded on a written contract, to prevent the running of the statute of limitations, must be in writing. Meyer v. Linch, 145 Neb. 1, 15 N.W.2d 317 (1944).Oral promise to pay will not toll running of statute on mortgage foreclosure. Brainard v. Hall, 137 Neb. 491, 289 N.W. 845 (1940).As against mortgagor, written extension agreement tolls the running of statute, even though not recorded. Hadley v. Corey, 137 Neb. 204, 288 N.W. 826 (1939).An account stated creates a new cause of action, and written acknowledgment of original items of indebtedness is not required. In re Estate of Black, Robinson v. Wittera, 125 Neb. 75, 249 N.W. 84 (1933).To remove bar of statute, debtor must unqualifiedly acknowledge an existing liability. France v. Ruby, 93 Neb. 214, 140 N.W. 175 (1913); Nelson v. Becker, 32 Neb. 99, 48 N.W. 962 (1891).A warrant issued by the proper authorities of a city in consideration of a valid indebtedness against it is a written acknowledgment of such indebtedness within the meaning of this section. Abrahams v. City of Omaha, 80 Neb. 271, 114 N.W. 161 (1907).Acknowledgment of indebtedness sufficient to toll statute should be made to creditor or some one authorized to represent him. Wallber v. Caldwell, 79 Neb. 418, 112 N.W. 584 (1907).A letter in which surety stated that he "will not longer be held good for the note" in case it be not promptly collected is sufficient acknowledgment within the meaning of this section. Harms v. Freytag, 59 Neb. 359, 80 N.W. 1039 (1899).Execution of a deed, if intended as a mortgage only, was not acknowledgment in writing of an existing liability, debt or claim within the provisions of this section. Ashby v. Washburn & Co., 23 Neb. 571, 37 N.W. 267 (1888).The unilateral crediting of defendant's debt without defendant's consent or knowledge was not a voluntary acknowledgment of the debt sufficient to toll the statute of limitations. Hejco, Inc. v. Arnold, 1 Neb. App. 44, 487 N.W.2d 573 (1992).3. MiscellaneousThe mere entry of credit by a creditor without consent of his debtor is without effect upon the statute of limitations and the fact that the debtor knows of an unauthorized entry of credit and makes no objection thereto is not alone sufficient to constitute a ratification of credit so as to toll the statute of limitations. T.S. McShane Co., Inc. v. Dominion Constr. Co., 203 Neb. 318, 278 N.W.2d 596 (1979).This section applies to actions founded on contract and has no application to actions founded on a tort liability. Hollenbeck v. Guardian Nat. Life Ins. Co., 144 Neb. 684, 14 N.W.2d 330 (1944).Oral request to defer settlement under indemnity agreement did not operate to toll running of statute of limitations. Lyhane v. Durtschi, 144 Neb. 256, 13 N.W.2d 130 (1944).A waiver of "all notice of any nature whatsoever" in the suretyship agreement does not operate to supply the surety's consent and authority to the making of partial payments in the future. W. T. Rawleigh Co. v. Smith, 142 Neb. 529, 9 N.W.2d 286 (1943), affirming 142 Neb. 527, 7 N.W.2d 80 (1942).In determining period of limitation in action to foreclose real estate mortgage given as security for note, this section and section 25-202 should be construed together. Steeves v. Nispel, 132 Neb. 597, 273 N.W. 50 (1937).Oral agreement to compensate one for past services, not performed as gratuity and not barred by statute, as well as for future services, out of promisor's estate by testamentary provision, is an independent contract to which statute requiring new promise to be in writing does not apply, where promisee performs agreement. Weideman v. Peterson's Estate, 129 Neb. 74, 261 N.W. 150 (1935).

25-217 Action; commencement; defendant not served; effect.

25-217. Action; commencement; defendant not served; effect.An action is commenced on the date the complaint is filed with the court. The action shall stand dismissed without prejudice as to any defendant not served within six months from the date the complaint was filed. SourceR.S.1867, Code § 19, p. 396; R.S.1913, § 7580; C.S.1922, § 8523; C.S.1929, § 20-217; R.S.1943, § 25-217; Laws 1979, LB 510, § 1; Laws 1986, LB 529, § 21; Laws 2002, LB 876, § 5. Cross ReferencesFor commencement of action, see section 25-501. Annotations1. Issuance and service2. Effect3. Amendment4. Miscellaneous1. Issuance and serviceThe provisions of this section requiring service of process are not applicable to condemnation actions. Wooden v. County of Douglas, 275 Neb. 971, 751 N.W.2d 151 (2008).Pursuant to this section, an action is dismissed by operation of law as to any defendant who is named and who is not served with process within 6 months after the complaint is filed. Reid v. Evans, 273 Neb. 714, 733 N.W.2d 186 (2007).In the case of substitute service by publication under section 25-519, service is not "made" until the third publication, and prior to the third publication, a defendant is "not served" under this section. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (2004).Where service by publication has been approved, a defendant is not served within 6 months from the date the petition was filed under this section unless the third publication under section 25-519 has occurred within 6 months from the date the petition was filed. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (2004).For purposes of determining whether an action is time barred, an action is commenced on the date the petition is filed. Kocsis v. Harrison, 249 Neb. 274, 543 N.W.2d 164 (1996).One's notice and demand for payment from a dissolved corporation does not constitute commencement of an "action" or "proceeding" as contemplated by section 21-20,104. Under the provisions of this section, an action is commenced on the date the petition is filed with the court. Licht v. Association Servs., Inc., 236 Neb. 616, 463 N.W.2d 566 (1990).Criterion of commencement of action for limitation purposes is date summons served on defendant. Schmer v. Gilleland, 185 Neb. 54, 173 N.W.2d 391 (1970).Filing without issuance of a summons is not commencement of an action. Norris P.P. Dist. v. State ex rel. Jones, 183 Neb. 489, 161 N.W.2d 869 (1968).An action is commenced at the date of the summons which is served upon the defendant. Gorgen v. County of Nemaha, 174 Neb. 588, 118 N.W.2d 758 (1962).As to defendant, action is deemed commenced at date of summons which is served on him. Ramirez v. Chicago, B. & Q. R. Co., 116 Neb. 740, 219 N.W. 1 (1928).Action is begun when petition is filed and summons issued thereon. Mosher v. Huwaldt, 86 Neb. 686, 126 N.W. 143 (1910).Action is not deemed commenced at date of issuance of summons, unless same is served. Reliance Trust Co. v. Atherton, 67 Neb. 305, 93 N.W. 150 (1903), rehearing denied 67 Neb. 309, 96 N.W. 218 (1903).Action is commenced at the date of the summons which is served upon the defendant. Calkins v. Miller, 55 Neb. 601, 75 N.W. 1108 (1898); Burlingim v. Cooper, 36 Neb. 73, 53 N.W. 1025 (1893).Issuance of summons against one, not a necessary party to suit, to foreclose mechanic's lien is not commencement of suit against nonresident. Pickens v. Polk, 42 Neb. 267, 60 N.W. 566 (1894).This section does not allow Nebraska courts to extend the time for service of process, even in a case in which the wrong defendant was served within the 6‑month grace period after filing a petition, because it is a self‑executing statute which deprives a lower court of jurisdiction to take any further action in the case once the 6 months has run. Smeal v. Olson, 10 Neb. App. 702, 636 N.W.2d 636 (2001).An action stood dismissed by operation of law upon the passing of 6 months after the filing of the petition, where the defendants were not served process and their voluntary appearances were entered more than 6 months after the date the petition was filed. Vopalka v. Abraham, 9 Neb. App. 285, 610 N.W.2d 433 (2000).The phrase "shall stand dismissed" means that an action is dismissed if 6 months from the filing of the petition passes without service upon the defendant, without the need for initiating action by the defendant, and without the need for a formal entry of an order of dismissal by the trial court. The dismissal mandated by this section is self-executing. When a lawsuit is dismissed by operation of law for lack of service of process within 6 months of filing, the trial court has no jurisdiction to make orders thereafter and if made, they are a nullity, as are subsequent pleadings. Cotton v. Fruge, 8 Neb. App. 484, 596 N.W.2d 32 (1999).Service of process not proper and regular, and was therefore quashed. Stoehr v. American Honda Motor Co., Inc., 429 F.Supp. 763 (D. Neb. 1977).2. EffectWhere original action was timely instituted, amended petition filed after running of statute of limitations, declaring on same cause of action, is not barred. Kennedy v. Potts, 128 Neb. 213, 258 N.W. 471 (1935).Summons must be issued before bar of statute of limitations is complete. Ballard v. Thompson, 40 Neb. 529, 58 N.W. 1133 (1894).Summons must be issued before bar of statute is complete, although it may be served afterward. Omaha Loan & Trust Co. v. Ayer, 38 Neb. 891, 57 N.W. 567 (1894).In action filed in federal court by Nebraska resident against California resident, Nebraska rule that action is deemed commenced at date of summons which is served is applicable. Gatliff v. Little Audrey's Transportation Co., Inc., 317 F.Supp. 1117 (D. Neb. 1970).3. AmendmentFor the purpose of applying the relation-back doctrine to a defendant named for the first time in an amended petition, the period during which the new defendant must be shown to have had the requisite knowledge of the suit includes the statutory period prescribed for the filing of the original petition plus the additional 6-month period in which summons could be served pursuant to this section. Smeal v. Olson, 263 Neb. 900, 644 N.W.2d 550 (2002).Summons on appeal from compensation award may be amended by district court to correct date of return, notwithstanding objections to jurisdiction. Keil v. Farmers' Irr. Dist., 119 Neb. 503, 229 N.W. 898 (1930).4. MiscellaneousThe effect of a dismissal without prejudice is the same as if the case had been dismissed pursuant to this section, meaning that another petition may be filed against the same parties upon the same facts as long as it is filed within the applicable statute of limitations. Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).The language of this section providing for dismissal of unserved petitions is self-executing and mandatory. After dismissal of an action by operation of law pursuant to this section, there is no longer an action pending and the district court has no jurisdiction to make further orders except to formalize the dismissal. If orders are made following a dismissal by operation of law under this section, they are a nullity, as are subsequent pleadings. Kovar v. Habrock, 261 Neb. 337, 622 N.W.2d 688 (2001).The language of this section providing for dismissal of unserved petitions is self-executing and mandatory. A defendant's voluntary appearance does not waive the operation of this section. After dismissal of an action by operation of this section, a trial court has no jurisdiction to make orders thereafter, except to formalize the dismissal. Vopalka v. Abraham, 260 Neb. 737, 619 N.W.2d 594 (2000).The limitation statutes found within Chapter 25, article 2, apply to counterclaims, and pursuant to this section, whether a counterclaim is barred is determined by the date the related petition was filed, rather than the date the counterclaim was filed. Becker v. Hobbs, 256 Neb. 432, 590 N.W.2d 360 (1999).Where there is no voluntary appearance and summons is not served, the court lacks personal jurisdiction over a party. Henderson v. Department of Corr. Servs., 256 Neb. 314, 589 N.W.2d 520 (1999).Excluding September 5, 1969, the last day on which work was done, the last day of the four-year period of limitations was September 5, 1973. George P. Rose Sodding & Grading Co. v. Dennis, 195 Neb. 221, 237 N.W.2d 418 (1976).If record on appeal does not disclose date when action was commenced, Supreme Court will not take judicial notice thereof. Newberg v. Chicago, B. & Q. R. Co., 120 Neb. 171, 231 N.W. 766 (1930).In absence of service of summons, date of voluntary appearance is the date the action is deemed commenced. Hotchkiss v. Aukerman, 65 Neb. 177, 90 N.W. 949 (1902).The language "shall stand dismissed" is mandatory and self-executing, which means that an action may be dismissed without the need for initiating action, such as a motion by the defendant, and without the need for a formal entry of an order of dismissal by the trial court. Such dismissals occur by operation of law. McDaneld v. Fischer, 8 Neb. App. 160, 589 N.W.2d 172 (1999).

25-218 Claims by and against the state; when barred.

25-218. Claims by and against the state; when barred.Every claim and demand against the state shall be forever barred unless action is brought thereon within two years after the claim arose. Every claim and demand on behalf of the state, except for revenue, or upon official bonds, or for loans or money belonging to the school funds, or loans of school or other trust funds, or to lands or interest in lands thereto belonging, shall be barred by the same lapse of time as is provided by the law in case of like demands between private parties. This section shall not apply to any claim or demand against the state regarding property taxes. SourceLaws 1877, § 16, p. 24; Laws 1881, c. 32, § 1, p. 211; R.S.1913, § 7581; C.S.1922, § 8524; C.S.1929, § 20-218; R.S.1943, § 25-218; Laws 1991, LB 829, § 3. AnnotationsThe state may raise the bar of the statute of limitations by a motion to dismiss filed with the administrative agency charged with determining the state's liability for payment on a contract claim. L.J. Vontz Constr. Co. v. Department of Roads, 232 Neb. 241, 440 N.W.2d 664 (1989).This section applies to actions for money damage but not to actions for injunctive relief. Czarnick v. Loup River P.P. Dist., 190 Neb. 521, 209 N.W.2d 595 (1973).Recovery by county for maintenance of insane patient in state hospital is not a claim for revenue. County of Adams v. Ernst, 158 Neb. 15, 62 N.W.2d 110 (1954).Suit against state for taking or damaging private property for public use must be commenced two years from the time of taking or damaging. Bordy v. State, 142 Neb. 714, 7 N.W.2d 632 (1943).All parties whose rights would be affected by modification or reversal of judgment must be made parties on appeal to Supreme Court. Donisthorpe v. Vavra, 134 Neb. 157, 278 N.W. 151 (1938).Statute does not apply to action by state to recover revenue from county. Torgeson v. Department of Trade and Commerce, 127 Neb. 49, 254 N.W. 740 (1934).Money levied and collected by county authorities to cover support of insane patients in state hospital, although transferred to county general fund, may be recovered in action by the state, without filing claim; statute of limitations is not applicable. State v. Stanton County, 100 Neb. 747, 161 N.W. 264 (1917).

25-219 Actions upon liability created by federal statute.

25-219. Actions upon liability created by federal statute.All actions upon a liability created by a federal statute, other than a forfeiture or penalty, for which actions no period of limitations is provided in such statute shall be commenced within three years next after the cause of action shall have accrued. SourceLaws 1943, c. 49, § 1, p. 200; R.S.1943, § 25-219.AnnotationsClaim for reimbursement from estate of recipient of old age assistance did not accrue until death of recipient. Boone County Old Age Assistance Board v. Myhre, 149 Neb. 669, 32 N.W.2d 262 (1948).This section was applicable to federal civil rights claim of former guidance counselor in action against school district on allegations dismissal was due to his race and his exercise of First Amendment rights. Chambers v. Omaha Public School Dist., 536 F.2d 222 (8th Cir. 1976).Summons issued before time allowed by statute of limitations has expired will give court jurisdiction even though served after time has expired. Sandobal v. Armour & Co., 429 F.2d 249 (8th Cir. 1970).Section 43-666, R.R.S.1943, is not sufficiently analogous to 20 U.S.C. section 1415 for its statute of limitation to apply to actions under that federal statute. However, the statute of limitations under either section 25-212 or 25-219, R.R.S.1943, appears to be more appropriate. Monahan v. State of Neb., 491 F.Supp. 1074 (D. Neb. 1980).The statute of limitation for commencement of suits under the federal civil rights act, which guarantees equal rights under the law, is the three-year statute of limitation set by this section. Metcalf v. Omaha Steel Casting Co., 476 F.Supp. 870 (D. Neb. 1979).

25-220 Repealed. Laws 1959, c. 264, § 1.

25-220. Repealed. Laws 1959, c. 264, § 1.

25-221 Statute of limitations; trial procedure.

25-221. Statute of limitations; trial procedure.In any action in which it is claimed by one or more of the defendants that the action is barred by the statute of limitations any party may move that the issue raised by the statute of limitations be tried separately and determined before any other issues in the case. Issues of fact raised by the statute of limitations shall be tried before a jury unless trial by jury is waived by all parties. Issues of law raised by the statute of limitations shall be determined by the court without a jury. If the issue raised by the statute of limitations is determined by the jury or the court in favor of the plaintiff the remaining issues shall then be tried. If the issue raised by the statute of limitations is determined by the jury or the court in favor of the defendant the action or actions barred by the statute of limitations shall be dismissed. SourceLaws 1971, LB 430, § 1; Laws 1997, LB 165, § 1. AnnotationsThe plain language of this section states that a jury trial on the statute of limitations issue is required only when issues of fact are raised; issues of law are to be determined by the court without a jury. If there are only conclusions of law asserted on the statute of limitations issue, a separate hearing to address the statute of limitations issue is not required under this section. Blankenau v. Landess, 261 Neb. 906, 626 N.W.2d 588 (2001).This section provides for preliminary rulings by the court on statute of limitations questions. Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d 289 (1992).The special bifurcation of a trial pursuant to this section does not create a separate judgment when the trial court determines the action is not barred by the statute of limitations. Interlocutory orders may be modified at subsequent terms provided the court still has not rendered a final decision in matters still pending. City of Wood River v. Geer-Melkus Constr. Co., 233 Neb. 179, 444 N.W.2d 305 (1989).An order denying a plea of the statute of limitations after a separate hearing on that issue is not appealable. Wulf v. Farm Bureau Ins. Co., 188 Neb. 258, 196 N.W.2d 164 (1972).Where claim that action is barred by the statute of limitations is raised by motion to try that issue separately, the court shall determine it before trying other issues in the case. Mattice v. Messer, 493 F.2d 498 (8th Cir. 1974).

25-222 Actions on professional negligence.

25-222. Actions on professional negligence.Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and provided further, that in no event may any action be commenced to recover damages for professional negligence or breach of warranty in rendering or failure to render professional services more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action. SourceLaws 1972, LB 1132, § 1. Annotations1. Constitutionality2. Computation of time3. Applicability4. Miscellaneous1. ConstitutionalityDefining substantive rights is a valid exercise of legislative power, and thus, this section does not violate the open courts provision of the Nebraska Constitution. Schendt v. Dewey, 246 Neb. 573, 520 N.W.2d 541 (1994).The ten-year period of repose contained in this section is constitutional. Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32 (1987); Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982).No constitutional objection lies where seven years intervenes between enactment of period of limitations and bringing of action. Cedars Corp. v. Swoboda, 210 Neb. 180, 313 N.W.2d 276 (1981).2. Computation of timeIn order for a continuous relationship to toll the statute of limitations regarding a claim for malpractice, there must be a continuity of the relationship and services for the same or related subject matter after the alleged professional negligence. Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).The discovery exception of this section is a tolling provision which permits the filing of an action after the 2-year statute of limitations only in those circumstances where the cause of action was not discovered and could not reasonably have been discovered within that period. Carruth v. State, 271 Neb. 433, 712 N.W.2d 575 (2006).A claim for malpractice against a hospital based upon the negligence of its nursing staff accrues when the patient is discharged from the hospital and the continuing treatment doctrine does not toll the statute of limitations for subsequent admissions at the hospital authorized by the patient's affiliated but independent physician. Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001).A plaintiff seeking to extend the tolling of the 2-year statute of limitations in a medical malpractice case must prove facts which indicate that the physician continued to treat him or her after the allegedly wrongful act or omission and that the treatment was related to the alleged negligence. Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001).Nebraska follows the occurrence rule, under which a professional negligence suit accrues at the time the act or omission in rendering or failing to render professional services takes place. In a professional negligence case, "discovery of the act or omission" occurs when the party knows of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the knowledge of facts constituting the basis of the cause of action. In a cause of action for professional negligence, legal injury is the wrongful act or omission which causes the loss; it is not damage, which is the loss resulting from the misconduct. A lack of knowledge of the extent of damages is not the equivalent of a lack of discovery of a cause of action as set out in this section. Gering - Ft. Laramie Irr. Dist. v. Baker, 259 Neb. 840, 612 N.W.2d 897 (2000).In order for a continuous relationship to toll the statute of limitations regarding a claim for malpractice, there must be a continuity of the relationship and services for the same or related subject matter after the alleged professional negligence. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999).The discovery exception permits an action to be commenced within 1 year from discovery where the cause of action could not have reasonably been discovered during the 2-year limitation period of this section. If facts are discovered that constitute the basis of a cause of action within 2 years from the alleged act of negligence, the discovery exception to the statute of limitations is inapplicable. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999).If the facts constituting a malpractice claim are not and could not be reasonably discovered within the 2-year limitation period, the claim may be brought within 1 year from the date of discovery or within 1 year from the date the plaintiff acquires facts that would lead to such discovery. World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1 (1996).The 1-year discovery exception provided for in this section tolls the statute of limitations, permitting an injured party to bring an action beyond the time limitation for bringing the action in those cases in which the injured party did not discover and could not reasonably have discovered the existence of the cause of action within the applicable statute of limitations. The 1-year discovery exception provided for in this section does not apply in actions governed under section 25-208 if the injured party knew or could reasonably have discovered the cause of action within the time set forth in section 25-208. In actions governed under section 25-208, the 1-year discovery exception provided for in that section only applies if the injured party did not know or could not reasonably have discovered the existence of the cause of action within the time period provided for in that section. Berntsen v. Coopers & Lybrand, 249 Neb. 904, 546 N.W.2d 310 (1996).Under discovery principle, cause of action for professional negligence accrues and 1-year discovery provision begins to run when there has been discovery of facts constituting basis of cause of action or existence of facts sufficient to put person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to discovery; it is not necessary that plaintiff have knowledge of exact nature or source of problem, but only knowledge that problem existed. If professional malpractice action is not to be considered time barred, plaintiff must either file within 2 years of alleged act or omission or show that its action falls within exceptions of this section as to its discovery of defendant's alleged negligence. Zion Wheel Baptist Church v. Herzog, 249 Neb. 352, 543 N.W.2d 445 (1996).If an action is not to be considered time barred, plaintiff must either file within 2 years of the alleged act or omission or show that the action falls within the exceptions of this section as to the discovery of defendant's alleged negligence. A cause of action accrues for negligence in professional services when the alleged act or omission in rendering or failure to render professional services takes place. The continuous representation rule, which tolls the running of the statute of limitations, is inapplicable where the claimant discovers the alleged negligence prior to the termination of the professional relationship. Lindsay Mfg. Co. v. Universal Surety Co., 246 Neb. 495, 519 N.W.2d 530 (1994).The continuous treatment or representation rule is inapplicable where the claimant discovers the alleged negligence prior to the termination of the professional relationship. The 2-year statute of limitations is not tolled where the plaintiff discovers the alleged negligence within 2 years of the allegedly negligent act or omission, and therefore, a professional negligence action is barred unless filed within 2 years of the occurrence of such act or omission. Economy Housing Co. v. Rosenberg, 239 Neb. 267, 475 N.W.2d 899 (1991).In order for a continuous relationship to toll the statute of limitations regarding a claim for malpractice, there must be a continuity of the relationship and services for the same or related subject matter after the alleged professional negligence. McCook Equity Exch. v. Cooperative Serv. Co., 230 Neb. 758, 433 N.W.2d 509 (1988); Lincoln Grain v. Coopers & Lybrand, 215 Neb. 289, 338 N.W.2d 594 (1983).Under the discovery principle, a cause of action accrues and the 1-year discovery provision of this section begins to run, when there has been discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery. It is not necessary that the plaintiff have knowledge of the exact nature or source of the problem, but only knowledge that the problem existed. Board of Regents v. Wilscam Mullins Birge, 230 Neb. 675, 433 N.W.2d 478 (1988).If action is not to be considered time-barred, plaintiff must either file within two years of alleged act or omission or show that its action falls within the exceptions of this section as to its discovery of defendant's alleged negligence. Kelly Klosure v. Johnson Grant & Co., 229 Neb. 369, 427 N.W.2d 44 (1988).A cause of action accrues and the statute of limitations begins to run at the time of the act or omission which is alleged to be the professional negligence that is the basis for the cause of action. Tiwald v. Dewey, 221 Neb. 547, 378 N.W.2d 671 (1985).A statute of limitations may begin to run before the full extent of damages is sustained. Suzuki v. Holthaus, 221 Neb. 72, 375 N.W.2d 126 (1985).This section requires that the action for malpractice be commenced within two years after the alleged act or omission and contains a provision for deferred commencement if the cause of action is not discovered and could not be reasonably discovered within such two-year period. Rosnick v. Marks, 218 Neb. 499, 357 N.W.2d 186 (1984).Ten-year statute of repose runs from time of physician's treatment rather than the date of the termination of the physician-patient relationship. Smith v. Dewey, 214 Neb. 605, 335 N.W.2d 530 (1983).A cause of action accrues, and the statute of limitations begins to run, when the aggrieved party has the right to institute and maintain suit, even though such a plaintiff may be ignorant of the existence of the cause of action. These matters are determined from the facts of each case. Interholzinger v. Estate of Dent, 214 Neb. 264, 333 N.W.2d 895 (1983).In considering whether the discovery exception to the professional negligence statute of limitations applies, a court may consider the complexity of the documents and whether representations as to the contents of the documents were made in determining whether the case presents a factual question to be determined by the trier of fact. In-Line Suspension v. Weinberg & Weinberg, 12 Neb. App. 908, 687 N.W.2d 418 (2004).A suit filed against an abstractor was time barred under this section because it was not filed within 1 year of discovery and because it was filed more than 10 years after the omission upon which the claim was based. Cooper v. Paap, 10 Neb. App. 243, 634 N.W.2d 266 (2001).Section 25-213 tolls the running of the time limitation under this section until an infant reaches the age of majority. Hatfield v. Bishop Clarkson Memorial Hosp., 679 F.2d 1258 (8th Cir. 1982).3. ApplicabilityCauses of action or theories of recovery that are premised on excessive fees concern professional misconduct, and thus, this section applies. Nuss v. Alexander, 269 Neb. 101, 691 N.W.2d 94 (2005).Agents of broker-dealers in securities are not professionals for purposes of the statute of limitations under this section. Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004).The definition of "profession" for purposes of the professional negligence statute of limitations under this section is (1) a calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, (2) maintaining by force of organization or concerted opinion high standards of achievement and conduct, and (3) committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service. Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004).Where a party's claims are for professional malpractice, whether pled in tort or contract, the statute of limitations for professional negligence contained in this section applies. Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004).If claims are for professional malpractice, whether pled in tort or contract, the statute of limitations for professional negligence contained in this section applies. A cause of action for professional negligence accrues when the alleged act or omission in rendering or failing to render professional services takes place. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999).A profession is no longer defined as an occupation involving specialized knowledge, labor, or skill, which labor and skill is predominantly mental or intellectual, rather than physical or manual; a profession is now defined as a calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, maintaining by force of organization or concerted opinion high standards of achievement and conduct, and committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service. Jorgensen v. State Nat. Bank & Trust Co., 255 Neb. 241, 583 N.W.2d 331 (1998).An action against a physician to recover damages for an injury sustained while the physician is adjusting the examination chair is within the professional negligence statute of limitations. Olsen v. Richards, 232 Neb. 298, 440 N.W.2d 463 (1989).Any professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties is malpractice and comes within the professional or malpractice statute of limitations. Olsen v. Richards, 232 Neb. 298, 440 N.W.2d 463 (1989).Architects and engineers are professionals for the purposes of this section. Board of Regents v. Wilscam Mullins Birge, 230 Neb. 675, 433 N.W.2d 478 (1988).The 2-year statute of limitations in this section, applicable to an architect who has the responsibility to design a building and a duty to inspect throughout construction, begins to run when the construction is completed. Board of Regents v. Wilscam Mullins Birge, 230 Neb. 675, 433 N.W.2d 478 (1988).Engineers are professionals for the purposes of this section, and this section applies to an action against such a professional, even though the professional services rendered by the engineer amount to an improvement to real property. Georgetowne Ltd. Part. v. Geotechnical Servs., 230 Neb. 22, 430 N.W.2d 34 (1988).Within the meaning of this section, the professional negligence statute of limitations, a profession rendering professional services is defined as a calling requiring specialized knowledge and often long and intensive preparation, including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, maintaining by force of organization or concerted opinion high standards of achievement and conduct, and committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service. Georgetowne Ltd. Part. v. Geotechnical Servs., 230 Neb. 22, 430 N.W.2d 34 (1988).Real estate brokerage is not a profession and, therefore, is not to be afforded protection under the statute of limitations governing actions for professional negligence. Tylle v. Zoucha, 226 Neb. 476, 412 N.W.2d 438 (1987).Where an architect has a professional responsibility to supervise construction and to see that all walls are in fact constructed, his failure to do so is a professional act to which this section applies. Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32 (1987).Architects and engineers are professionals for the purposes of this section. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).The period of repose applicable to an architect who has a duty to inspect throughout construction is contained in this section and begins to run when construction is completed. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).The period of repose applicable to an engineer who has no duty other than to provide a design to an architect is contained in this section and begins to run when the design is delivered to the architect. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).Abstractors are professionals for the purposes of this section. Cooper v. Paap, 10 Neb. App. 243, 634 N.W.2d 266 (2001).4. MiscellaneousThe claim of a conflict of interest is a cause of professional malpractice limited by the 2-year statute of limitations for professional negligence. Egan v. Stoler, 265 Neb. 1, 653 N.W.2d 855 (2002).The statute of limitations defense is waived if it is not asserted in the pleadings. Welsch v. Graves, 255 Neb. 62, 582 N.W.2d 312 (1998).Equitable estoppel arises from a failure to disclose material information when a fiduciary or confidential relationship exists between a physician and a patient. Schendt v. Dewey, 252 Neb. 979, 568 N.W.2d 210 (1997).The doctrine of fraudulent concealment estops a defendant from asserting a statute of limitations defense when the defendant has, either by deception or by violation of a duty, concealed from the plaintiff material facts which prevent the plaintiff from discovering malpractice. Equitable estoppel arises from active or affirmative efforts to conceal malpractice. Schendt v. Dewey, 252 Neb. 979, 568 N.W.2d 210 (1997).When prisoner filed grievance with corrections department and threatened legal action for injury suffered during tooth extraction, injury was discovered under this statute. Gordon v. Connell, 249 Neb. 769, 545 N.W.2d 722 (1996).Nondiscovery of all damages is not the equivalent of nondiscovery of a cause of action. Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505 (1995).A client has knowledge of his attorney's alleged negligence at the time the client signs the contract. Nichols v. Ach, 233 Neb. 634, 447 N.W.2d 220 (1989).For the statute to begin running, it is not necessary that the plaintiff have knowledge of the exact nature or source of the problem, but only knowledge that a problem existed. The plaintiff need not have suffered actual damages, but there must be an invasion of a legally protected interest. Nichols v. Ach, 233 Neb. 634, 447 N.W.2d 220 (1989).Discovery, as applied to statutes of limitations, refers to the fact that one knows of the existence of an injury or damage and not that he or she has a legal right to seek redress in court. Norfolk Iron & Metal v. Behnke, 230 Neb. 414, 432 N.W.2d 18 (1988).Discovery, as used in reference to a statute of limitations, means that an individual acquires knowledge of a fact which existed but which was previously unknown to the discoverer. Norfolk Iron & Metal v. Behnke, 230 Neb. 414, 432 N.W.2d 18 (1988).Nondiscovery of all damages is not the equivalent of nondiscovery of a cause of action as set out in this section relating to the statute of limitations for professional negligence. Norfolk Iron & Metal v. Behnke, 230 Neb. 414, 432 N.W.2d 18 (1988).The alleged failure to communicate an offer of settlement in a dissolution action cannot be made the basis of a claimed act of professional negligence absent evidence that the proposed settlement was not unconscionable and would therefore likely have been approved by the district court. Smith v. Ganz, 219 Neb. 432, 363 N.W.2d 526 (1985).A person under a legal disability described in section 25-213 is exempted from the provisions of this section until the legal disability is removed. Sacchi v. Blodig, 215 Neb. 817, 341 N.W.2d 326 (1983).Death of doctor before two-year statute of limitations expires does not extinguish negligence claim against his estate. Davies v. Reese, 197 Neb. 320, 248 N.W.2d 344 (1977).If the cause of action for professional negligence is not discovered and could not reasonably be discovered within two years, an action may be commenced within one year from the date of discovery, or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. Taylor v. Karrer, 196 Neb. 581, 244 N.W.2d 201 (1976).Special two-year statute of limitations controlled action against doctor based on erroneous blood typing by his employee. Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976).Plaintiff had a reasonable time after this act which reduced limitation period was passed and became effective to file its action, and having failed to do so within such time, the action is barred. Educational Service Unit No. 3 v. Mammel, O., S., H. & S., Inc., 192 Neb. 431, 222 N.W.2d 125 (1974).If all of a plaintiff's claims are based upon a single professional relationship, whether pled in tort or contract, the statute of limitations for professional negligence applies and cannot be circumvented by separating the claims into various parts to allow different periods of limitation to apply. Gering - Ft. Laramie Irr. Dist. v. Baker, 8 Neb. App. 1001, 606 N.W.2d 826 (2000).Federal courts were not precluded from consideration of statutory vagueness by Nebraska decision as to retrospective impact, and motion to dismiss action against architects and engineers for professional negligence appropriately raised statute of limitations defense where plaintiff did not allege facts to invoke exception to it for causes of action which could not reasonably be discovered within two-year limitation period. Horn v. Burns & Roe, 536 F.2d 251 (8th Cir. 1976).

25-223 Action on breach of warranty on improvements to real property.

25-223. Action on breach of warranty on improvements to real property.Any action to recover damages based on any alleged breach of warranty on improvements to real property or based on any alleged deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property shall be commenced within four years after any alleged act or omission constituting such breach of warranty or deficiency. If such cause of action is not discovered and could not be reasonably discovered within such four-year period, or within one year preceding the expiration of such four-year period, then the cause of action may be commenced within two years from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no event may any action be commenced to recover damages for an alleged breach of warranty on improvements to real property or deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property more than ten years beyond the time of the act giving rise to the cause of action. SourceLaws 1976, LB 495, § 1.AnnotationsThis section is a special statute of limitations applying to builders and contractors making improvements to real property. Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d 777 (2005).The statute of limitations in this section applies only to actions brought against contractors or builders. Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992).Under this section, a cause of action accrues, and the statute of limitations begins to run, when there has been discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery. Smith v. Butler Manuf. Co., 230 Neb. 734, 433 N.W.2d 493 (1988).Under the discovery principle, a cause of action accrues and the 2-year discovery provision of this section begins to run when there has been discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery. It is not necessary that the plaintiff have knowledge of the exact nature or source of the problem, but only knowledge that the problem existed. Board of Regents v. Lueder Constr. Co., 230 Neb. 686, 433 N.W.2d 485 (1988).The 10-year period of repose contained in this section is constitutional. Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32 (1987).This section applies to an action in tort for personal injuries caused by the negligent construction of a building. Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32 (1987).The period of repose applicable to a general contractor is found in this section and begins to run when construction of the structure is completed. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).Where the plaintiff knew of a leaky roof problem more than four years before bringing suit, the cause of action was barred. Kearney Clinic Bldg. Corp. v. Weaver, 211 Neb. 499, 319 N.W.2d 95 (1982).The statute of limitation for an action based on alleged deficiencies in improvements to real property does not run during the time when the plaintiff reasonably could not discover the existence of the cause of action. Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979).

25-224 Actions on product liability.

25-224. Actions on product liability.(1) All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.(2)(a) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed by section 2-725, Uniform Commercial Code or by subsection (5) of this section, shall be commenced as follows:(i) For products manufactured in Nebraska, within ten years after the date the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption; or(ii) For products manufactured outside Nebraska, within the time allowed by the applicable statute of repose, if any, of the state or country where the product was manufactured, but in no event less than ten years. If the state or country where the product was manufactured does not have an applicable statute of repose, then the only limitation upon the commencement of an action for product liability shall be as set forth in subsection (1) of this section.(b) If the changes made to this subsection by Laws 2001, LB 489, are declared invalid or unconstitutional, this subsection as it existed prior to September 1, 2001, shall be deemed in full force and effect and shall apply to all claims in which a final order has not been entered.(3) The limitations contained in subsection (1), (2), or (5) of this section shall not be applicable to indemnity or contribution actions brought by a manufacturer or seller of a product against a person who is or may be liable to such manufacturer or seller for all or any portion of any judgment rendered against a manufacturer or seller.(4) Notwithstanding the provisions of subsections (1) and (2) of this section, any cause of action or claim which any person may have on July 22, 1978, may be brought not later than two years following such date.(5) Any action to recover damages based on injury allegedly resulting from exposure to asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite, actinolite, or any combination thereof, shall be commenced within four years after the injured person has been informed of discovery of the injury by competent medical authority and that such injury was caused by exposure to asbestos as described herein, or within four years after the discovery of facts which would reasonably lead to such discovery, whichever is earlier. No action commenced under this subsection based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless such seller is also the manufacturer of such product or the manufacturer of the part thereof claimed to be defective. Nothing in this subsection shall be construed to permit an action to be brought based on an injury described in this subsection discovered more than two years prior to August 30, 1981. SourceLaws 1978, LB 665, § 2; Laws 1981, LB 29, § 1; Laws 2001, LB 489, § 1.Annotations1. Constitutionality2. Computation of time3. Miscellaneous1. ConstitutionalitySubsection (2) of this section is constitutional. Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d 289 (1992).Nebraska's products liability 10-year statute of repose does not violate the Due Process or Equal Protection Clauses of the Nebraska or U.S. Constitutions and does not violate the open courts provision of the Nebraska Constitution. Radke v. H.C. Davis Sons' Mfg. Co., 241 Neb. 21, 486 N.W.2d 204 (1992).The 10-year period of repose contained in this section is constitutional. Spilker v. City of Lincoln, 238 Neb. 188, 469 N.W.2d 546 (1991).2. Computation of timeSubsection (2) of this section is not tolled by a person's status as a minor pursuant to section 25-213. Budler v. General Motors Corp., 268 Neb. 998, 689 N.W.2d 847 (2004).Pursuant to subsection (2) of this section, the statute of repose should be recommenced when a product has been refurbished. To determine whether a product has been refurbished, courts must first determine whether the refurbishing resulted in a "new product". To determine whether the product should be considered "new", courts must inquire whether the refurbishing has lengthened the product's useful life beyond what was contemplated when the product was first sold. Second, even if the product is considered "new", the suit will still be time barred unless the refurbishing was defective and proximately caused the injury. Divis v. Clarklift of Nebraska, Inc., 256 Neb. 384, 590 N.W.2d 696 (1999).The 10-year statute of repose found in subsection (2) of this section begins to run when the product is first relinquished for use or consumption. Where the injury occurs within the 10-year period, and a claimant commences his or her action after the 10 years have passed, an action accrues but is barred. Where the injury occurs outside the 10-year period, no substantive cause of action ever accrues, and a claimant's actions are likewise barred. Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d 289 (1992).The 1981 amendment to subsections (2) and (5) of this section cannot be retroactively applied to revive causes of action which had been extinguished by the provisions of the 1978 enactment of subsection (2) of this section. Immunity granted by a completed statutory bar is a vested right which cannot be impaired by a subsequent legislative act. Givens v. Anchor Packing, 237 Neb. 565, 466 N.W.2d 771 (1991).Time periods for bringing suit are extended by section 25-213. Lawson v. Ford Motor Co., 225 Neb. 725, 408 N.W.2d 256 (1987).The statute of repose applicable to the manufacturer of an allegedly defective product is contained in this section and begins to run when possession of the product is first relinquished for ultimate use or consumption, not when it is first placed into the stream of commerce by the manufacturer. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).One who wrongfully conceals a material fact necessary to the accrual of a cause of action against him, and such concealment causes the opposite party to delay the filing of suit, cannot avail himself of the statute of limitations as a defense. MacMillen v. A. H. Robins Co., 217 Neb. 338, 348 N.W.2d 869 (1984).The 4-year statute of limitations begins to run on the date on which the party who holds the cause of action discovers, or in the exercise of reasonable diligence should have discovered, the existence of the injury or damage. Condon v. A. H. Robins Co., 217 Neb. 60, 349 N.W.2d 622 (1984).Regarding an infant's cause of action for products liability, section 25-213 tolls the statute of limitations contained in subsection (4) of this section. Macku v. Drackett Products Co., 216 Neb. 176, 343 N.W.2d 58 (1984).3. MiscellaneousThe effect of the 10-year statute of repose in subsection (2) of this section can be to prevent what might otherwise be a cause of action from ever arising. Farber v. Lok-N-Logs, Inc., 270 Neb. 356, 701 N.W.2d 368 (2005).The language, "first sold or leased for use or consumption", contained in subsection (2) of this section refers to when a product is first surrendered or relinquished to the individual or entity. Farber v. Lok-N-Logs, Inc., 270 Neb. 356, 701 N.W.2d 368 (2005).Upon the passage of the 10-year repose period in subsection (2) of this section, the defendant acquires a substantive right protected by statute. Farber v. Lok-N-Logs, Inc., 270 Neb. 356, 701 N.W.2d 368 (2005).When a party brings a suit which is characterized as a suit in tort alleging negligence in the performance of a contract, the applicable statute of limitations is that which is applied to actions in tort. Thomas v. Countryside of Hastings, 246 Neb. 907, 524 N.W.2d 311 (1994).

25-225 Repealed. Laws 1986, LB 529, § 58.

25-225. Repealed. Laws 1986, LB 529, § 58.

25-226 Cause of action against a common carrier; limitation.

25-226. Cause of action against a common carrier; limitation.A cause of action for a freight damage claim, a rate overcharge, a claim for damages resulting from a delay in transportation, or a claim for a lost shipment against a common carrier shall be barred unless it is filed with a court having jurisdiction of the amount in dispute within two years after the date such action accrues. A cause of action for a rate overcharge accrues on the date the overcharge is paid. A cause of action for a freight damage claim, damages resulting from a delay in transportation, or a shortage in a shipment accrues on the date of delivery or tender of delivery of the freight by the common carrier. A cause of action for a lost shipment accrues on the date the lost shipment was delivered to the common carrier. SourceLaws 1967, c. 479, § 20, p. 1485; R.S.1943, (1990), § 75-802; Laws 1991, LB 14, § 1.

25-227 Action to enforce obligation to pay certificate of deposit; when.

25-227. Action to enforce obligation to pay certificate of deposit; when.(1) For purposes of this section:(a) Account agreement means one or more written instruments that establish when a certificate of deposit is payable;(b) Certificate of deposit means a deposit or share account at a depository institution that:(i) Is payable by the depository institution at the expiration of a specified time; and(ii) May be transferable or nontransferable, negotiable or nonnegotiable, and renewable or nonrenewable;(c) Depository institution means a state-chartered or federally chartered financial institution located in this state that is authorized to maintain certificates of deposit; and(d) Maturity date means the time specified in an account agreement when a certificate of deposit is first payable, without taking into account any agreement regarding renewals.(2) Subject to subsection (3) of this section, an action to enforce the obligation of a depository institution to pay all or part of the balance of a certificate of deposit shall be commenced by the earlier of:(a) The time that an action to enforce an obligation under subsection (e) of section 3-118, Uniform Commercial Code, must be commenced if the certificate of deposit is subject to such section; or(b) Seven years after the later of:(i) The maturity date of the certificate of deposit;(ii) The due date of the certificate of deposit indicated in the depository institution's last written notice of renewal of the certificate of deposit, if any;(iii) The date of the last written communication from the depository institution recognizing the depository institution's obligation with respect to the certificate of deposit; or(iv) The last day of the taxable year for which a person identified in the certificate of deposit last reported interest income earned on the certificate of deposit on a federal or state income tax return.(3) Notwithstanding subsection (2) of this section, an action to enforce the obligation of a depository institution to pay all or part of the balance of an automatically renewing certificate of deposit in existence on July 1, 2008, shall be commenced by the later of:(a) Seven years after the later of:(i) The maturity date of the certificate of deposit;(ii) The due date of the certificate of deposit indicated in the depository institution's last written notice of renewal of the certificate of deposit, if any;(iii) The date of the last written communication from the depository institution recognizing the depository institution's obligation to pay the certificate of deposit; or(iv) The last day of the taxable year for which a person identified in the certificate of deposit last reported interest income earned on the certificate of deposit on a federal or state income tax return; or(b) One year after July 1, 2008.(4) This section applies to all certificates of deposit that are in existence on or after July 1, 2008. SourceLaws 2008, LB151, § 1.Operative Date: July 1, 2008

25-301 Real party in interest.

25-301. Real party in interest.Every action shall be prosecuted in the name of the real party in interest except as otherwise provided in section 25-304. An action shall not be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for joinder or substitution of the real party in interest. Joinder or substitution of the real party in interest shall have the same effect as if the action had been commenced by the real party in interest. SourceR.S.1867, Code § 29, p. 398; R.S.1913, § 7582; C.S.1922, § 8525; C.S.1929, § 20-301; R.S.1943, § 25-301; Laws 1999, LB 48, § 1.Annotations1. Real party in interest2. Miscellaneous1. Real party in interestUnder this section, every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 25-304, R.R.S.1943. Redding v. Gibbs, 203 Neb. 727, 280 N.W.2d 53 (1979).Where insurance company settled and paid insureds' loss in full and they make no demand on defendant feeling that no additional amount is owing them, insurance company would be real party in interest in suit upon assignment to it of insureds' cause of action. Jelinek v. Nebraska Nat. Gas Co., 196 Neb. 488, 243 N.W.2d 778 (1976).Fact that property passes the same by will as by deed conclusive of issue that neither executor nor other beneficiaries of will have standing to be real party in interest under this section. Scholting v. Alley, 185 Neb. 549, 178 N.W.2d 273 (1970).Plaintiffs not real parties in interest where conditions precedent to representative or derivative suit on behalf of a public corporation were not met. Evans v. Metropolitan Utilities Dist., 184 Neb. 172, 166 N.W.2d 411 (1969).Interested parties may appeal to district court from action of county superintendent in dissolving school district. Board of Education v. Winne, 177 Neb. 431, 129 N.W.2d 255 (1964).Defense of action by real party in interest was proper. Anest v. Chester B. Brown Co., 169 Neb. 330, 99 N.W.2d 615 (1959).Party in whose name sheep feeding operations were conducted was the real party in interest. Brown v. Globe Laboratories, Inc., 165 Neb. 138, 84 N.W.2d 151 (1957).Owner of truck was real party in interest to recover for violation of Installment Loan Act. McNish v. General Credit Corp., 164 Neb. 526, 83 N.W.2d 1 (1957).Real party in interest is the party entitled to the avails of the suit. Dafoe v. Dafoe, 160 Neb. 145, 69 N.W.2d 700 (1955).Person for whom bond was tendered was real party in interest in action to compel approval of bond. Summit Fidelity & Surety Co. v. Nimtz, 158 Neb. 762, 64 N.W.2d 803 (1954).Where action is brought by party designated by statute for that purpose, it meets the requirement that all actions shall be brought by the real party in interest. Boone County Old Age Assistance Board v. Myhre, 149 Neb. 669, 32 N.W.2d 262 (1948).An action by assignee of claim under Fair Labor Standards Act is brought by the real party in interest. Archer v. Musick, 147 Neb. 1018, 25 N.W.2d 908 (1947).Joinder of cause of action by plaintiff in his own right with cause of action assigned for collection is not permitted. Archer v. Musick, 147 Neb. 344, 23 N.W.2d 323 (1946).Action may be continued by assignee of claim in name of original party. Exchange Elevator Co. v. Marshall, 147 Neb. 48, 22 N.W.2d 403 (1946).Every action must be prosecuted in the name of the real party in interest. Uptegrove v. Metropolitan Life Ins. Co. of N.Y., 145 Neb. 51, 15 N.W.2d 220 (1944).Only beneficiary, or some one suing in his behalf, can maintain suit against trustee to enforce trust or enjoin or obtain redress for breach of trust. In re Estate of Reynolds, 131 Neb. 557, 268 N.W. 480 (1936).School district was ultimate beneficiary but not necessarily the real party in interest hereunder. State ex rel. Sorensen v. Nemaha County Bank, 124 Neb. 883, 248 N.W. 650 (1933).Administratrix is proper party hereunder to sue for damages for death of employee; compensation act merely relates to distribution of proceeds. Goeres v. Goeres, 124 Neb. 720, 248 N.W. 75 (1933).Tax Commissioner exercising constitutional powers, as the real party in interest in absence of express statutory prohibition, is authorized to carry on proceedings in name of state. State v. Odd Fellows Hall Assn., 123 Neb. 440, 243 N.W. 616 (1932).Person injured by negligent acts of policeman in discharge of official duty may sue on policeman's bond, although same runs to city as obligee. Curnyn v. Kinney, 119 Neb. 478, 229 N.W. 894 (1930).Bank, although in hands of State Banking Superintendent, may sue. First State Bank of Herrick v. Conant, 117 Neb. 562, 221 N.W. 691 (1928).Husband and wife jointly may sue concerning real estate owned by either. Coon v. O'Brien, 107 Neb. 427, 186 N.W. 340 (1922).Tenant may sue in action upon contract for joint benefit of landlord and tenant concerning crop. Hurley v. Manchester, 107 Neb. 299, 185 N.W. 974 (1921).Purchaser from consignee, after transportation has ended, cannot maintain action against carrier for damage in transit without procuring assignment of claim from consignee. Meyer v. Chicago & N.W. Ry. Co., 101 Neb. 756, 164 N.W. 1048 (1917).Trustee for minor child of insured, designated as beneficiary in policy, is proper plaintiff. Ward v. Bankers Life Co., 99 Neb. 812, 157 N.W. 1017 (1916).A joint obligee in an appeal bond may maintain an action thereon in his own name when he has purchased the interest of his joint obligee. Harker v. Burbank, 68 Neb. 85, 93 N.W. 949 (1903).Third person for whose benefit promise is made may maintain action thereon, though not party to consideration. Goos v. Goos, 57 Neb. 294, 77 N.W. 687 (1898); Morrill v. Skinner, 57 Neb. 164, 77 N.W. 375 (1898).Assignee of chose in action is the proper and only party who can maintain an action thereon. Crum v. Stanley, 55 Neb. 351, 75 N.W. 851 (1898).Action on replevin bond must be brought by the party who, by the judgment in replevin, is awarded a recovery. Pilger v. Marder, Luse & Co., 55 Neb. 113, 75 N.W. 559 (1898).Consignee is proper party to sue for failure to deliver goods. Union P. Ry. Co. v. Metcalf, 50 Neb. 452, 69 N.W. 961 (1897).Real party in interest is the person entitled to the avails of the suit. Kinsella v. Sharp, 47 Neb. 664, 66 N.W. 634 (1896).Where party with whom subscription contract was made assigned his interest to another, he was not a real party in interest. Gerner v. Church, 43 Neb. 690, 62 N.W. 51 (1895).A partnership may be plaintiff in action for fraud in purchase of real estate, although title is taken in name of individual partner. Peaks & Co. v. Graves, 25 Neb. 235, 41 N.W. 151 (1888).Tenants in common may or may not join in action against mere trespasser. Mattis v. Boggs, 19 Neb. 698, 28 N.W. 325 (1886).A private person, to be a real party in interest, in bringing an action to abate a public nuisance must show special injury to himself. Kittle v. Fremont, 1 Neb. 329 (1871).Once a party files a bankruptcy petition, all of his property, including choses in action, become property of the bankruptcy estate, and the bankruptcy trustee becomes the real party in interest with respect to such choses in action, until such time as the trustee may abandon the chose in action. Forrest v. Eilenstine, 5 Neb. App. 77, 554 N.W.2d 802 (1996).Where the State brought an action for mother's medical expenses on behalf of child, the State failed to properly state a claim for such expenses. State on behalf of Dunn v. Wiegand, 2 Neb. App. 580, 512 N.W.2d 419 (1994).2. MiscellaneousAn agreement to assign all proceeds, if any, of an insurance policy does not operate to divest a plaintiff of the capacity to bring an action. Craig v. Farmers Mut. Ins. Co., 239 Neb. 271, 476 N.W.2d 529 (1991).A plaintiff's cause of action cannot be split, and having settled with defendant for injuries, he cannot bring action upon claim of insurance company against defendant for money paid plaintiff under a collision policy. Schmidt v. Henke, 192 Neb. 408, 222 N.W.2d 114 (1974).The Attorney General may bring an action for a declaratory judgment challenging the constitutionality of a statute which the Tax Commissioner proposed to implement and enforce. State ex rel. Meyer v. Peters, 188 Neb. 817, 199 N.W.2d 738 (1972).An issue that plaintiff is not the real party in interest must be specially pleaded. Neill v. McGinn, 175 Neb. 369, 122 N.W.2d 65 (1963).This section applies to forcible entry and detainer cases. Gregory v. Pribbeno, 143 Neb. 379, 9 N.W.2d 485 (1943).This section applies to forcible detainer cases. Towles v. Hamilton, 94 Neb. 588, 143 N.W. 935 (1913).If plaintiff's name imports a corporation, it is not necessary to allege its corporate capacity in terms. Fletcher v. Co-operative Pub. Co., 58 Neb. 511, 78 N.W. 1070 (1899).Plaintiff suing on account should do so by Christian name. Small v. Sandall, 48 Neb. 318, 67 N.W. 156 (1896); Fisk v. Gulliford, 1 Neb. Unof. 31, 95 N.W. 494 (1901).Where pleadings disclose cause of action against defendant personally, super-added words, as "agent" or "ex-executor," etc., are mere descriptio personae. Thomas v. Carson, 46 Neb. 765, 65 N.W. 899 (1896).Where a contract of guaranty is transferred by assignment, assignee may sue in his own name. Weir v. Anthony, 35 Neb. 396, 53 N.W. 206 (1892).An assignee of a chose in action may sue on it in his own name and right. State Securities Co. v. Federated Mut. Imp. & Hard. Ins. Co., 204 F.Supp. 207 (D. Neb. 1960).

25-302 Assignee of a thing in action.

25-302. Assignee of a thing in action.The assignee of a thing in action may maintain an action thereon in the assignee's own name and behalf, without the name of the assignor. SourceR.S.1867, Code § 30, p. 398; R.S.1913, § 7583; C.S.1922, § 8526; C.S.1929, § 20-302; R.S.1943, § 25-302; Laws 2006, LB 1115, § 9. AnnotationsA party who has in fact become the owner of a chose in action by assignment may bring action thereon in his own name without naming the assignor. Archer v. Musick, 147 Neb. 344, 23 N.W.2d 323 (1946).Assignment of a negotiable instrument may be made on a separate sheet of paper, but transferee is not protected against defenses which might be shown against payee. Plattsmouth State Bank v. Redding, 128 Neb. 268, 258 N.W. 661 (1935).A claim for earned official salary against county may be assigned, and such assignment is binding on county when county board is advised of such assignment. Woods v. Brown County, 125 Neb. 692, 251 N.W. 839 (1933).One furnishing labor or supplies to highway contractor may sue in his own name on surety bond as made for his benefit. West v. Detroit Fidelity & Surety Co., 118 Neb. 544, 225 N.W. 673 (1929).Assignee may maintain action in own name to recover funds due from school district to building contractor. Stansberry Lumber Co. v. School Dist. of McCook, 94 Neb. 24, 142 N.W. 302 (1913).An attorney to whom claims are unconditionally assigned may sue in his own name. Huddleson v. Polk, 70 Neb. 483, 97 N.W. 624 (1903).Assignee of nonnegotiable promissory note may maintain an action thereon in his own name. Barry v. Wachosky, 57 Neb. 534, 77 N.W. 1080 (1899).The assignee of a chose in action is the proper and only party who can maintain a suit thereon. Crum v. Stanley, 55 Neb. 351, 75 N.W. 851 (1898); Mills v. Murry, 1 Neb. 327 (1871).A contract of guaranty is assignable, and the assignee may maintain an action thereon in his own name. Weir v. Anthony, 35 Neb. 396, 53 N.W. 206 (1892).A mechanic's lien is assignable, and the assignee can maintain an action to foreclose the lien in his own name. Rogers v. Omaha Hotel Co., 4 Neb. 54 (1875).

25-303 Assignee; defenses and counterclaims available.

25-303. Assignee; defenses and counterclaims available.An action by the assignee of a thing in action shall be without prejudice to any counterclaim or defense existing between the original parties; 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. SourceR.S.1867, Code § 31, p. 398; R.S.1913, § 7584; C.S.1922, § 8527; C.S.1929, § 20-303; R.S.1943, § 25-303.AnnotationsThe fundamental test to be applied in ascertaining whether the plaintiff is the real party in interest is whether or not the prosecution of the action will save the defendant from further harassment or vexation at the hands of other claimants to the same demand. Archer v. Musick, 147 Neb. 1018, 25 N.W.2d 908 (1947).Defenses arising against the assignor, after notice of the assignment, cannot be set off against the claim of the assignee. Cronkleton v. Hastings Theatre and Realty Corp., 134 Neb. 168, 278 N.W. 144 (1938).Purchaser of village warrants takes same subject to any equities existing against holder. Union Nat. Bank of Fremont v. Village of Beemer, 123 Neb. 778, 244 N.W. 303 (1932).Account cannot be assigned free from right of set-off. Olsen v. Marquis, 88 Neb. 610, 130 N.W. 267 (1911).Future earnings or profits under an existing contract are assignable. First Nat. Bank of Madison v. School Dist. No. 1, 77 Neb. 570, 110 N.W. 349 (1906).Where promissory note was purchased after maturity, it was subject to any set-off or other defense against prior holder. Wilbur v. Jeep, 37 Neb. 604, 56 N.W. 198 (1893).In action on certificate of deposit transferred after due, maker may set off any cross-demand against original payee which existed at time of transfer. First Nat. Bank of Rapid City v. Security Nat. Bank of Sioux City, 34 Neb. 71, 51 N.W. 305 (1892).An endorsement of a promissory note not for value, but for the purpose of collection, does not cut off defenses of maker defendant. Roberts v. Snow, 27 Neb. 425, 43 N.W. 241 (1889).A promissory note assigned by a separate writing rather than by endorsement is not transferred within the meaning of this section and the maker's defense of usury is available against the assignee. Doll v. Hollenbeck, 19 Neb. 639, 28 N.W. 286 (1886).The purchaser of a note after maturity takes it subject to any set-off good between the original parties. Davis v. Neligh, 7 Neb. 78 (1878).

25-304 Parties to actions.

25-304. Parties to actions.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 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 the same way. Assignees of choses in action assigned for the purpose of collection may sue on any claim assigned in writing. SourceR.S.1867, Code § 32, p. 398; Laws 1913, c. 166, § 1, p. 509; R.S.1913, § 7585; C.S.1922, § 8528; C.S.1929, § 20-304; R.S.1943, § 25-304; Laws 2003, LB 19, § 1.Annotations1. Assignees2. Executors, administrators, and guardians3. Trustees4. Officers5. Contracts made for benefit of another6. Miscellaneous1. AssigneesAn assignee of a chose in action to whom the legal title has been assigned for the purpose of collection is a proper party plaintiff and may maintain an action as the real party in interest. Archer v. Musick, 147 Neb. 1018, 25 N.W.2d 908 (1947).An assignee of a chose in action assigned for collection is a proper party plaintiff but is not the real party in interest as to the cause of action. Archer v. Musick, 147 Neb. 344, 23 N.W.2d 323 (1946).Action is properly brought by assignee of creditor. Seybolt v. Waters, 109 Neb. 99, 189 N.W. 980 (1922).2. Executors, administrators, and guardiansPlaintiff, describing himself as guardian, presumed to sue in representative capacity. Bennett v. Bennett, 65 Neb. 432, 91 N.W. 409 (1902), affirmed on rehearing 65 Neb. 441, 96 N.W. 994 (1903).Federal court had jurisdiction on ground of diversity of citizenship by Kansas resident, even though plaintiff had been appointed administratrix by Nebraska court. Janzen v. Goos, 302 F.2d 421 (8th Cir. 1962).3. TrusteesWhen certain devisees under will appoint a trustee who brings action in their behalf, they are all bound thereby. Glissmann v. McDonald, 128 Neb. 693, 260 N.W. 182 (1935).Trustee for bondholders is entitled to maintain appeal. Roebling's Sons Co. v. Nebraska Elec. Co., 106 Neb. 255, 183 N.W. 546 (1921).Trustee for minor son of insured, so designated as beneficiary in policy, may bring action thereon. Ward v. Bankers Life Co., 99 Neb. 812, 157 N.W. 1017 (1916).Where trustee refuses to carry out terms of trust, parties beneficially interested may maintain action to enforce trust and obtain benefit thereunder. Goble v. Swobe, 64 Neb. 838, 90 N.W. 919 (1902).Trustee of express trust, who is obligee on injunction bond, may maintain action thereon in own name. Gyger v. Courtney, 59 Neb. 555, 81 N.W. 437 (1900).Consignor of goods is not trustee of an express trust. Union Pacific Ry. Co. v. Metcalf & Wood, 50 Neb. 452, 69 N.W. 961 (1897).County is proper party to bring an action analogous to that of trustee for all funds, except those of the county proper, where county treasurer is in default. Thorne v. Adams County, 22 Neb. 825, 36 N.W. 515 (1888).4. OfficersSchool district treasurer or successor may maintain action for recovery of district's money deposited in bank. State ex rel. Sorensen v. Nemaha County Bank, 124 Neb. 883, 248 N.W. 650 (1933).Tax Commissioner exercising constitutional powers as the real party in interest, in absence of express statutory prohibition, is authorized to carry on proceedings in the name of the state. State v. Odd Fellows Hall Assn., 123 Neb. 440, 243 N.W. 616 (1932).Action may be brought in name of bank as plaintiff, although it is in hands of State Bank Superintendent. First State Bank of Herrick v. Conant, 117 Neb. 562, 221 N.W. 691 (1928).State Board may bring action where authorized by statute. State ex rel. Board of Transportation v. Missouri P. Ry. Co., 29 Neb. 550, 45 N.W. 785 (1890).5. Contracts made for benefit of anotherAction may be brought by person in whose name a contract was made for benefit of another. Brown v. Globe Laboratories, Inc., 165 Neb. 138, 84 N.W.2d 151 (1957).Party in whose name contract is made for benefit of another may bring action without joining such other person. Coe v. Nebraska B. & I. Co., 110 Neb. 322, 193 N.W. 708 (1923).This section constitutes exception to statutory rule that all parties united in interest must join as plaintiffs. Owner of fractional interest in real estate is proper plaintiff in action upon contract executed in his name for benefit of all interests. O'Shea v. North American Hotel Co., 109 Neb. 317, 191 N.W. 321 (1922).Person holding legal title, although property is in fact owned by another, may maintain action in own name. Chamberlain v. Woolsey, 66 Neb. 149, 95 N.W. 38 (1903).Party, holding legal title to chose in action for the benefit of another, may sue in own name. Meeker v. Waldron, 62 Neb. 689, 87 N.W. 539 (1901).Where legal title was taken in name of plaintiff, suit was authorized by her for wrongful sale of land. Alexander v. Overton, 36 Neb. 503, 54 N.W. 825 (1893).Where contract is made for benefit of another, action can be maintained in name of contracting party. Ley v. Miller, 28 Neb. 822, 45 N.W. 174 (1890).Where a promissory note is made to an agent in his own name as promisee, he may maintain an action thereon without joining the person beneficially interested in the note. Stoll v. Sheldon, 13 Neb. 207, 13 N.W. 201 (1882).6. MiscellaneousAn agreement requiring the purchase of construction fund warrants, regardless of the holder of the warrants, may be enforced by the party that made the agreement and is authorized to make the demand for purchase. Chiles, Heider & Co. v. Pawnee Meadows, 217 Neb. 315, 350 N.W.2d 1 (1984).Under this section, Nebraska has not recognized "consent" as being an exception to the requirement under section 25-301, R.R.S.1943, that an action be prosecuted by the real party in interest. Redding v. Gibbs, 203 Neb. 727, 280 N.W.2d 53 (1979).The Attorney General may bring an action for a declaratory judgment challenging the constitutionality of a statute which the Tax Commissioner proposes to implement and enforce. State ex rel. Meyer v. Peters, 188 Neb. 817, 199 N.W.2d 738 (1972).Tenant who had settled with landowner for landowner's share of loss was entitled to recover the entire damages caused to crops by defendant. Ristine v. Geigy Agricultural Chemicals, 188 Neb. 550, 198 N.W.2d 199 (1972).Party in whose name contract was made could bring action for violation of Installment Loan Act. McNish v. Grand Island Finance Co., 164 Neb. 543, 83 N.W.2d 13 (1957); McNish v. General Credit Corp., 164 Neb. 526, 83 N.W.2d 1 (1957).Attorney General may bring action of injunction under Installment Loan Act without joining borrowers as parties. State ex rel. Beck v. Associates Discount Corp., 162 Neb. 683, 77 N.W.2d 215 (1956).Person for whom bond was tendered did not fall within exceptions. Summit Fidelity & Surety Co. v. Nimtz, 158 Neb. 762, 64 N.W.2d 803 (1954).The real party in interest is the person entitled to the avails of the suit. Uptegrove v. Metropolitan Life Ins. Co. of N. Y., 145 Neb. 51, 15 N.W.2d 220 (1944).Defendant interposing counterclaim was not real party in interest where loss, if any, would fall on owner of bonds not joined as defendant in the action. Continental Nat. Bank of Lincoln v. Wilkinson, 124 Neb. 675, 247 N.W. 604 (1933).

25-305 Married woman.

25-305. Married woman.A woman may while married sue and be sued in the same manner as if she were unmarried. SourceLaws 1871, § 3, p. 68; R.S.1913, § 7586; C.S.1922, § 8529; C.S.1929, § 20-305; R.S.1943, § 25-305.AnnotationsCommon-law doctrine of interspousal tort immunity is abrogated; husband or wife is not immune from tort liability to the other solely by the reason of that relationship. This case overrules Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N.W. 297 (1927). Imig v. March, 203 Neb. 537, 279 N.W.2d 382 (1979).Action by wife against husband for personal injuries is not authorized. Emerson v. Western Seed & Irr. Co., 116 Neb. 180, 216 N.W. 297 (1927).Statute of limitations runs against women during coverture. Murphy v. Evans City Steam Laundry Co., 52 Neb. 593, 72 N.W. 960 (1897).Married woman may maintain action for personal injuries in her own home. City of Chadron v. Glover, 43 Neb. 732, 62 N.W. 62 (1895).Wife may maintain action against husband for use and occupation of her real estate. Skinner v. Skinner, 38 Neb. 756, 57 N.W. 534 (1894).Married woman, served with process, was bound by court's decree in registration proceedings under Torrens Act. Jones v. York County, 26 F.2d 623 (8th Cir. 1928).Wife may maintain action for loss of consortium. Cooney v. Moomaw, 109 F.Supp. 448 (D. Neb. 1953).

25-306 Wife's right to defend.

25-306. Wife's right to defend.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. SourceR.S.1867, Code § 35, p. 398; R.S.1913, § 7587; C.S.1922, § 8530; C.S.1929, § 20-306; R.S.1943, § 25-306.

25-307 Suit by infant, guardian, or next friend; exception; substitution by court.

25-307. Suit by infant, guardian, or next friend; exception; substitution by court.Except as provided by the Nebraska Probate Code, the action of an infant shall be commenced, maintained, and prosecuted by his or her guardian or next friend. Such actions may be dismissed with or without prejudice by the guardian or next friend only with approval of the court. When the action is commenced by his or her 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. Any action taken pursuant to this section shall be binding upon the infant. SourceR.S.1867, Code § 36, p. 398; R.S.1913, § 7588; C.S.1922, § 8531; C.S.1929, § 20-307; R.S.1943, § 25-307; Laws 1975, LB 480, § 1; Laws 1975, LB 481, § 10; Laws 2006, LB 1115, § 10. Cross ReferencesNebraska Probate Code, see section 30-2201. Annotations1. Guardian or next friend2. Miscellaneous1. Guardian or next friend.Trial court has power, for cause, to substitute next friend in place of guardian. Workman v. Workman, 167 Neb. 857, 95 N.W.2d 186 (1959).Next friend may be incompetent to testify to transaction with deceased person. Fincham v. Mueller, 166 Neb. 376, 89 N.W.2d 137 (1958).Minor should be represented by guardian ad litem or a next friend. Cass v. Pense, 155 Neb. 792, 54 N.W.2d 68 (1952).Where infants have been disinherited or deprived of valuable property rights by will, near relative or other person interested in their welfare may institute proceedings as next friend, to contest will, negotiate for compromise, and execute contract of settlement for infants' benefit, and such contract, if approved by court, is binding on infants and all parties thereto. In re Shierman's Estate, 129 Neb. 230, 261 N.W. 155 (1935).Under authority hereof, guardian or next friend might sue to protect rights of minor cestui que trust as against testamentary trustee. In re Frerichs' Estate, 120 Neb. 462, 233 N.W. 456 (1930).Intervention by infants, through next friend, in probate proceedings is authorized hereunder; appointment of guardian ad litem is not required. In re Bayer's Estate, 116 Neb. 670, 218 N.W. 746 (1928).This section is not in derogation of right of next friend to maintain action on behalf of one incapable of conducting his own affairs through age or weakness. Stephan v. Prairie Life Ins. Co., 113 Neb. 469, 203 N.W. 626 (1925).Infants have a right to sue by guardian or next friend to recover damages for injuries due to tortious acts. Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903).Next friend may bring suit for an insane party. Wager v. Wagoner, 53 Neb. 511, 73 N.W. 937 (1898).Where seventeen-year-old minor brought suit by next friend, as authorized by law, for injunction against enforcement of statute requiring parents' consent for abortion, motion for appointment of guardian ad litem was denied. Doe v. Exon, 416 F.Supp. 716 (D. Neb. 1976).2. MiscellaneousOwner of life estate in portion of larger tract may maintain partition against cotenant holding fee simple. Nitz v. Widman, 106 Neb. 736, 184 N.W. 172 (1921).One for whom a conservator has been appointed possesses the power to sue in his own name. Rogers v. Bates, 431 F.2d 16 (8th Cir. 1970).

25-308 Action by guardian, conservator, or next friend; liability for costs; security; witness.

25-308. Action by guardian, conservator, or next friend; liability for costs; security; witness.The guardian, conservator, or next friend is liable for the costs of the action brought by the guardian, conservator, or next friend, and when he or she is insolvent, the court may require security for the costs of the action. The guardian, conservator, or next friend may be a witness in an action brought by the guardian, conservator, or next friend. SourceR.S.1867, Code § 37, p. 399; R.S.1913, § 7589; C.S.1922, § 8532; C.S.1929, § 20-308; R.S.1943, § 25-308; Laws 1975, LB 481, § 11; Laws 2006, LB 1115, § 11.AnnotationsCosts cannot be taxed against guardian ad litem in a case brought by another against a minor or incompetent. White v. Ogier, 175 Neb. 883, 125 N.W.2d 68 (1963).A guardian or next friend is liable for the costs of an action brought by him. Peterson v. Skiles, 173 Neb. 470, 113 N.W.2d 628 (1962).Liability for costs may cause next friend to be incompetent to testify as to transaction with deceased person. Fincham v. Mueller, 166 Neb. 376, 89 N.W.2d 137 (1958).An action of an infant must be brought by his guardian or next friend, who alone is liable for costs, and the infant is not liable to a judgment therefor. Kleffel v. Bullock, 8 Neb. 336 (1879).

25-309 Suit against infant; guardian for suit; when appointed; exception.

25-309. Suit against infant; guardian for suit; when appointed; exception.Except as provided by the Nebraska Probate Code, the defense of an infant must be 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 county judge. The appointment cannot be made until after service of the summons in the action as directed by this code. SourceR.S.1867, Code § 38, p. 399; R.S.1913, § 7590; C.S.1922, § 8533; C.S.1929, § 20-309; R.S.1943, § 25-309; Laws 1975, LB 481, § 12. Cross ReferencesNebraska Probate Code, see section 30-2201. AnnotationsThe defense of an infant must be made by a guardian for the suit. Omey v. Stauffer, 174 Neb. 247, 117 N.W.2d 481 (1962).The defense of a minor must be made by a guardian ad litem. Peterson v. Skiles, 173 Neb. 470, 113 N.W.2d 628 (1962).Appointment of guardian ad litem should not be made until after service of process in the action. Marsh v. Marsh, 173 Neb. 282, 113 N.W.2d 323 (1962).Appointment of guardian ad litem was proper. Cass v. Pense, 155 Neb. 792, 54 N.W.2d 68 (1952).Failure of court to appoint guardian ad litem for minor, under circumstances disclosed, was not prejudicial error. Kuhlman v. Schacht, 130 Neb. 511, 265 N.W. 549 (1936).This section refers to the defense of infants, rather than to affirmative action on their behalf. In re Bayer's Estate, 116 Neb. 670, 218 N.W. 746 (1928).Where partition suit is brought by father against minor children under fourteen, service on minors and plaintiff as father and guardian is sufficient to confer jurisdiction to appoint guardian ad litem. Beadle v. Beadle, 102 Neb. 73, 165 N.W. 953 (1917).Guardian should resist payment of illegal attorney fees out of estate of ward. Ress v. Shepherd, 84 Neb. 268, 120 N.W. 1132 (1909).Where minor acquires title to subject matter of action while it is pending, failure to appoint guardian ad litem will not invalidate judgment. Shelby v. St. James Orphan Asylum, 66 Neb. 40, 92 N.W. 155 (1902).Failure to appoint guardian ad litem was merely error; it does not render void the judgment entered. Manfull v. Graham, 55 Neb. 645, 76 N.W. 19 (1898).

25-310 Suit against infant; guardian; how appointed.

25-310. Suit against infant; guardian; how appointed.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 plaintiff in the action. SourceR.S.1867, Code § 39, p. 399; R.S.1913, § 7591; C.S.1922, § 8534; C.S.1929, § 20-310; R.S.1943, § 25-310.AnnotationsMinor over fourteen has the right to apply for appointment of guardian, and objection that no guardian was appointed comes too late after verdict. Kuhlman v. Schacht, 130 Neb. 511, 265 N.W. 549 (1936).Where partition suit is brought by father against minor children under fourteen years of age, service on minors and plaintiff as father and guardian is sufficient to confer jurisdiction on court to appoint guardian ad litem. Beadle v. Beadle, 102 Neb. 73, 165 N.W. 953 (1917).

25-311 Joinder of plaintiffs.

25-311. Joinder of plaintiffs.All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. SourceR.S.1867, Code § 40, p. 399; R.S.1913, § 7592; C.S.1922, § 8535; C.S.1929, § 20-311; R.S.1943, § 25-311; Laws 1998, LB 234, § 1.Annotations1. Joinder2. Miscellaneous1. JoinderMultiple plaintiffs may join in one suit to enjoin a nuisance so long as the alleged nuisance interferes with the rights of each plaintiff joined; however, multiple plaintiffs seeking monetary damages for an alleged nuisance would be misjoined where any one plaintiff has no interest in the monetary relief demanded by each of the other plaintiffs. Goeke v. National Farms, Inc., 245 Neb. 262, 512 N.W.2d 626 (1994).Mortgagees of cattle were proper party plaintiffs with owner in suit on indemnity bond of livestock commission company. Oss v. Hartford Accident & Indemnity Co., 130 Neb. 311, 264 N.W. 897 (1936).To authorize joinder of parties as defendants, they must be under joint liability or claiming some right in subject matter of action. Stull Bros. v. Powell, 70 Neb. 152, 97 N.W. 249 (1903).Successive mortgagees, merely as such, and even though possession has not been had on any of the mortgages, may join in replevying the property. Trompen v. Yates, 66 Neb. 525, 92 N.W. 647 (1902).City may join as party plaintiff in tax foreclosure proceedings by county, but is not required to do so. County of Lancaster v. Rush, 35 Neb. 119, 52 N.W. 837 (1892).Two parties having separate and distinct claims to the possession of the same property may unite such claims and in their joint or combined names maintain an action of replevin therefor. Earle v. Burch, 21 Neb. 702, 33 N.W. 254 (1887).Tenants in common may join in an action for the possession of real estate held by one without title. Mattis v. Boggs, 19 Neb. 698, 28 N.W. 325 (1886).An attorney who has perfected his lien upon money due from defendant in a pending action has such an interest therein to be made a coplaintiff. Reynolds v. Reynolds, 10 Neb. 574, 7 N.W. 322 (1880).2. MiscellaneousInterested parties may appeal to district court from action of county superintendent in dissolving school district. Board of Education v. Winne, 177 Neb. 431, 129 N.W.2d 255 (1964).Objection that plaintiff has no legal capacity to sue must be made, if at all, by party to suit. Miller v. Willis, 15 Neb. 13, 16 N.W. 840 (1883).In an action brought upon a judgment against a principal debtor, in behalf of a surety who has paid off and satisfied the same and taken an assignment thereof, the original plaintiffs are not proper parties. Eaton v. Lambert, 1 Neb. 339 (1871).

25-312 Defendants; how designated; misnomer; when immaterial.

25-312. Defendants; how designated; misnomer; when immaterial.(1) In all actions upon bills of exchange or promissory notes, or other written instruments, and in all actions described in subsection (2) of this section, it is sufficient to designate any defendant by the name or part of name by which he or she is designated in the instrument upon which action is brought, or by which he or she appears of record to have some interest, right, title, estate in or lien upon the property involved in such action or proceeding, and for all the purposes of such action or proceeding such name shall be considered the real name of such defendant.(2) This section applies to (a) actions brought under section 25-401, 25-402, or 25-403 and (b) actions which relate to, or the subject of which is, real or personal property in this state, if the defendant has or claims a lien or interest, actual or contingent, in such property, or the relief demanded consists wholly or partially in excluding the defendant from any interest in such property, and such defendant is a nonresident of the state or is a foreign corporation. SourceR.S.1867, Code § 23, p. 397; R.S.1913, § 7593; Laws 1921, c. 220, § 34, p. 795; C.S.1922, § 8536; C.S.1929, § 20-312; R.S.1943, § 25-312; Laws 1997, LB 1, § 1. AnnotationsAction upon promissory note may be brought against maker in name by which he signed note hereunder. Bresee v. Snyder, 94 Neb. 384, 143 N.W. 219 (1913).A cause of action collateral to the instrument, and not based thereon, is not within the purview of this section. Gillian v. McDowall, 66 Neb. 814, 92 N.W. 991 (1902).Where note and chattel mortgage are assigned to purchaser by his initials, he comes within exception and may sue and foreclose by action without giving full name. Richardson v. Opelt, 60 Neb. 180, 82 N.W. 377 (1900).Prescribed mode of procedure must be closely followed. Church v. Callihan, 49 Neb. 542, 68 N.W. 932 (1896).Misnomer in action may be taken advantage of any time before judgment. Small v. Sandall, 48 Neb. 318, 67 N.W. 156 (1896).Where plaintiff is designated in the pleadings and process by initials, court may allow amendment to insert full name. Real v. Honey, 39 Neb. 516, 58 N.W. 136 (1894).

25-312.01 Dissolved corporation; suit authorized.

25-312.01. Dissolved corporation; suit authorized.Any dissolved corporation may be sued by its corporate name upon any cause of action accrued against such corporation or which but for such dissolution would have accrued, with the same effect as if it had not been dissolved. SourceLaws 1983, LB 447, § 15.

25-313 Company, partnership, or unincorporated association; designation.

25-313. Company, partnership, or unincorporated association; designation.Any company or association of persons formed for the purpose of (1) carrying on any trade or business, (2) holding any species of property in this state, or (3) representing employees in collective bargaining with employers, and not incorporated, may sue and be sued by such usual name as such company, partnership or association may have assumed to itself or be known by. It shall not be necessary in such case to set forth in the process or pleadings or to prove at the trial the names of the persons composing such company. SourceR.S.1867, Code § 24, p. 397; R.S.1913, § 7594; C.S.1922, § 8537; C.S.1929, § 20-313; R.S.1943, § 25-313; Laws 1947, c. 82, § 1, p. 256.Annotations1. Carrying on trade or business2. Holding property3. Labor unions4. Miscellaneous1. Carrying on trade or businessPleading must show that partnership was formed for carrying on trade or business or for holding property in this state. McJunkin v. Placek & Fitl, 80 Neb. 373, 114 N.W. 411 (1907).Unincorporated company, organized and doing business in another state, cannot sue here in firm name. Weisz & Mall Co. v. Davey, 28 Neb. 566, 44 N.W. 470 (1890).Alleging that company is actually carrying on business in state is sufficient. Jansen & Co. v. Mundt, 20 Neb. 320, 30 N.W. 53 (1886).Allegation that partnership is organized and doing business in State of Nebraska is sufficient to authorize carrying on of action in firm name. Chamberlain Banking House v. Noyes, Norman & Co., 3 Neb. Unof. 550, 92 N.W. 175 (1902); Biddle v. Spatz & Miner, 1 Neb. Unof. 175, 95 N.W. 354 (1901).In suit to enjoin violation of federal statute by members of partnership, federal district court for Missouri, wherein members resided, had jurisdiction although place of partnership's business was in Nebraska. Sutherland v. United States, 74 F.2d 89 (8th Cir. 1934).Partnership may sue in firm name on cause of action which accrued in the course of the partnership business. Shoaff v. Gage, 168 F.Supp. 161 (D. Neb. 1958).2. Holding propertyAllegation that company is formed to carry on some trade or business or to hold some species of property in this state and that it is not incorporated is essential to maintenance of action. Burlington & Missouri River Railroad Company in Nebraska v. Dick & Son, 7 Neb. 242 (1878).3. Labor unionsPrior to 1947 amendment, where unincorporated association was not formed to carry on some trade or business, or to hold some species of property in this state, service of process could not be properly made on such association in this state. Hurley v. Brotherhood of Railroad Trainmen, 147 Neb. 781, 25 N.W.2d 29 (1946).4. MiscellaneousAn unincorporated association may represent employees in collective bargaining but must comply with section 25-314, R.R.S.1943, before it can bring an action in court. Nebraska Council of Educational Leaders v. Nebraska Dept. of Education, 189 Neb. 811, 205 N.W.2d 537 (1973).Where name of plaintiff and right to sue are improperly stated, the defect is waived if not objected to. Champlin Bros. v. Sperling, 84 Neb. 633, 121 N.W. 976 (1909).Partnership may sue or be sued in firm name. Stelling v. Peddicord, 78 Neb. 779, 111 N.W. 793 (1907).This section is special in character, and prescribed course of procedure must be closely followed. Meyer v. Omaha Furniture & Carpet Co., 76 Neb. 405, 107 N.W. 767 (1906).When the original action is against a partnership and during its pendency an amended petition is filed against the individual members, that is an abandonment or a discontinuance of the action against the firm. Wigton & Whitham v. Smith, 57 Neb. 299, 77 N.W. 772 (1899).Section is to be strictly construed. Church v. Callihan, 49 Neb. 542, 68 N.W. 932 (1896).If the plaintiff's petition sets out fully the names of the parties suing and then recites "late partners under the firm name . . ." the action is not brought within the provisions of this section. Smith v. Gregg, 9 Neb. 212, 2 N.W. 459 (1879).So long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment, and those claiming under the judgment are as much entitled to its benefits, to all intents and purposes, as if the defendant had been sued by his right name. Toulousaine de Distrib. v. Tri-State Seed & Grain, 2 Neb. App. 937, 520 N.W.2d 210 (1994).Even though stock yard companies were separate legal entities, doctrine of primary jurisdiction was not applicable to oust federal court of jurisdiction. McCleneghan v. Union Stock Yards Co., 298 F.2d 659 (8th Cir. 1962).Disbarment proceedings did not operate to deprive lawyer of equal protection of the law under this section. Niklaus v. Simmons, 196 F.Supp. 691 (D. Neb. 1961).

25-314 Transferred to section 25-530.08.

25-314. Transferred to section 25-530.08.

25-314.01 Repealed. Laws 1983, LB 447, § 104.

25-314.01. Repealed. Laws 1983, LB 447, § 104.

25-315 Partnership or unincorporated association; security for costs.

25-315. Partnership or unincorporated association; 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, who is a resident of the county, for costs, or otherwise give security for costs. SourceR.S.1867, Code § 26, p. 397; R.S.1913, § 7596; C.S.1922, § 8539; C.S.1929, § 20-315; R.S.1943, § 25-315.AnnotationsIn action against partners individually, upon a judgment obtained against firm, petition must allege partnership property is insufficient to satisfy judgment. Leach v. Milburn Wagon Co., 14 Neb. 106, 15 N.W. 232 (1883); Ruth v. Lowrey & Upton, 10 Neb. 260, 4 N.W. 977 (1880).Security should be given before delivery of summons for service. Haskins v. Citizens Bank, 12 Neb. 39, 10 N.W. 466 (1881).Security for costs is an essential prerequisite to maintenance of action. Burlington & M. R. R. Co. v. Dick & Son, 7 Neb. 242 (1878).

25-316 Company, partnership, or unincorporated association; member's individual property; how subjected to satisfaction of judgment.

25-316. Company, partnership, or unincorporated association; member's individual property; how subjected to satisfaction of judgment.If the plaintiff, in any judgment so rendered against any company or partnership, seeks to charge the individual property of the persons composing such company or firm, it shall be lawful for the plaintiff to file a bill in equity against the several members thereof, setting forth his or her judgment and the insufficiency of the partnership property 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. SourceR.S.1867, Code § 27, p. 397; R.S.1913, § 7597; C.S.1922, § 8540; C.S.1929, § 20-316; R.S.1943, § 25-316; Laws 2006, LB 1115, § 12.AnnotationsAs a condition precedent to bringing an action against individual partners to satisfy the debts of a partnership, this section contemplates that there must be a prior judgment against the partnership. Security State Bank v. McCoy, 219 Neb. 132, 361 N.W.2d 514 (1985).The right of action preserved by this section is assignable in like manner and with like effect as other choses in action. Wood v. Carter, 67 Neb. 133, 93 N.W. 158 (1903).A member of an unincorporated religious society not founded for the purpose of gain or pecuniary profit is not individually liable for its debts, unless he authorized the incurring of the obligation or subsequently ratified the same. First Nat. Bank of Plattsmouth v. Rector, 59 Neb. 77, 80 N.W. 269 (1899).To entitle plaintiff to recover from individual partner, it was necessary to allege and prove that the partnership property was insufficient to satisfy the judgment. Ruth v. Lowrey & Upton, 10 Neb. 260, 4 N.W. 977 (1880).A fundamental condition precedent to the bringing of a bill in equity pursuant to this section against individual partners is a prior judgment against the partnership. Under the doctrine of res judicata, an order by a bankruptcy court allowing an administrative expense claim is a prior judgment within the meaning of this section. Metco, Inc. v. Huffman, 2 Neb. App. 506, 511 N.W.2d 780 (1994).

25-317 Repealed. Laws 1998, LB 234, § 12.

25-317. Repealed. Laws 1998, LB 234, § 12.

25-318 Necessary joinder; involuntary joinder; procedure.

25-318. Necessary joinder; involuntary joinder; procedure.Of the parties to the action, those who are united in interest shall be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he or she may be made a defendant, the reason being stated in the complaint. SourceR.S.1867, Code § 42, p. 399; R.S.1913, § 7599; C.S.1922, § 8542; C.S.1929, § 20-318; R.S.1943, § 25-318; Laws 2002, LB 876, § 6.Annotations1. Joinder2. Miscellaneous1. JoinderJoint obligees must sue jointly in actions ex contractu. Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991).This section states general rule as to joinder, to which there are statutory exceptions. O'Shea v. North Am. Hotel Co., 109 Neb. 317, 191 N.W. 321 (1922).Liability of defendants was joint and other parties interested with them should have been joined. Wolfenbarger v. Britt, 105 Neb. 773, 181 N.W. 932 (1921).Voluntary release of one of two joint makers of promissory note will release the other; demurrer for misjoinder. Banking House of A. Castetter v. Rose, 78 Neb. 693, 111 N.W. 590 (1907).In action on appeal bond running to joint obligees, failure by one obligee to join co-obligee as party justified dismissal of action. Harker v. Burbank, 68 Neb. 85, 93 N.W. 949 (1903).Alleging that a person is joined as defendant because he refused to join as plaintiff is sufficient. Union P. Ry. Co. v. Vincent, 58 Neb. 171, 78 N.W. 457 (1899).Parties jointly liable must be joined as defendants. Bowen v. Crow, 16 Neb. 556, 20 N.W. 850 (1884); Fox v. Abbott, 12 Neb. 328, 11 N.W. 303 (1882).Widow may bring action alone or jointly with her children for damage against all persons jointly and severally who furnish liquor causing damage. Kerkow v. Bauer, 15 Neb. 150, 18 N.W. 27 (1883); Roose v. Perkins, 9 Neb. 304, 2 N.W. 715 (1879).2. MiscellaneousAssuming that plaintiff and guardian ad litem for incompetent defendant were united in interest, taxation of fee for guardian ad litem against plaintiff was unauthorized. Johnson v. Munsell, 170 Neb. 749, 104 N.W.2d 314 (1960).This section is applicable to appellate proceedings. Donisthorpe v. Vavra, 134 Neb. 157, 278 N.W. 151 (1938).Where assignment to plaintiff was of undivided interest in claim, subject to contingencies, plaintiff did not make separate case against defendant, in view of this section. Federal Land Bank of Omaha v. United States Nat. Bank, 13 F.2d 36 (8th Cir. 1926).

25-319 Class actions; representation.

25-319. Class actions; representation.When the question is one of a 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. SourceR.S.1867, Code § 43, p. 399; R.S.1913, § 7600; C.S.1922, § 8543; C.S.1929, § 20-319; R.S.1943, § 25-319.Annotations1. Class action proper2. Class action improper3. Miscellaneous1. Class action properClass action was proper for recovery of erroneous deductions from salaries of policemen and firemen for pension purposes. Gant v. City of Lincoln, 193 Neb. 108, 225 N.W.2d 549 (1975).Class suit to determine rights to appropriation of water was authorized. Hickman v. Loup River P. P. Dist., 173 Neb. 428, 113 N.W.2d 617 (1972).Class action may apply to proceedings for school district reorganization. Keedy v. Reid, 165 Neb. 519, 86 N.W.2d 370 (1957).Class action to enjoin collection of void tax is authorized. Gamboni v. County of Otoe, 159 Neb. 417, 67 N.W.2d 489 (1954).Class action was properly brought to determine disposition of assets of religious corporation. In re Estate of Harrington, 151 Neb. 81, 36 N.W.2d 577 (1949).Plaintiffs are entitled to sue for themselves and all other members of fraternal insurance corporation similarly situated. Folts v. Globe Life Ins. Co., 117 Neb. 723, 223 N.W. 797 (1929).2. Class action improperAn individual who cannot maintain his or her individual cause of action against a defendant is unqualified to represent a purported class in a class action. Lynch v. State Farm Mut. Auto. Ins. Co., 275 Neb. 136, 745 N.W.2d 291 (2008).The general rule is that an action to recover taxes illegally assessed cannot be maintained as a class action. In re 1983-84 County Tax Levy, 220 Neb. 897, 374 N.W.2d 235 (1985).When there is potential for conflicting interests within a class, in that some members of the class own property in both sending and receiving school districts, a suit against the receiving school districts may not be maintained as a class action. In re 1983-84 County Tax Levy, 220 Neb. 897, 374 N.W.2d 235 (1985).A former policyholder who has terminated his insurance policy is not the proper representative for a class consisting of policyholders where there are actual and potential conflicts between the interests of the former and present policyholders. It is appropriate to dispose of the class aspect of such a case upon motion for summary judgment. Sarratt v. Lincoln Benefit Life Co., 212 Neb. 436, 323 N.W.2d 81 (1982).Generally, a suit cannot be maintained by one taxpayer on behalf of himself and others similarly situated to recover taxes alleged to have been illegally assessed, but each taxpayer must bring action on his own behalf. Riha Farms, Inc. v. County of Sarpy, 212 Neb. 385, 322 N.W.2d 797 (1982).A party having an interest adverse to the interests of those sought to be represented may not sue as representative of a class. Blankenship v. Omaha P. P. Dist., 195 Neb. 170, 237 N.W.2d 86 (1976).Class action cannot be maintained by persons having interests adverse to those of parties purported to be represented. Evans v. Metropolitan Utilities Dist., 185 Neb. 464, 176 N.W.2d 679 (1970).Suit by assignee of claims under Fair Labor Standards Act is not a class action within the purview of this section. Archer v. Musick, 147 Neb. 1018, 25 N.W.2d 908 (1947).3. MiscellaneousIn order to justify class status treatment, there must exist both a question of common or general interest and numerous parties so as to make it impracticable to bring all the parties before the court. Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994).Where a class action is attempted, considerable discretion is vested with the trial court in determining if a class action is proper, even if the class technically fulfills statutory requirements. Berkshire & Andersen v. Douglas County Board of Equalization, 200 Neb. 113, 262 N.W.2d 449 (1978).It was not necessary, in special proceedings to confirm validity of reclamation district, to make all landowners parties. Nebraska Mid-State Reclamation District v. Hall County, 152 Neb. 410, 41 N.W.2d 397 (1950).Where a number of persons contribute to the erection of a church edifice, it is not necessary for all persons who contributed to join in an action to restrain a sale or transfer thereof. Avery v. Baker, 27 Neb. 388, 43 N.W. 174 (1889).

25-320 Permissive joinder of defendants.

25-320. Permissive joinder of defendants.All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. SourceR.S.1867, Code § 44, p. 399; R.S.1913, § 7601; C.S.1922, § 8544; C.S.1929, § 20-320; R.S.1943, § 25-320; Laws 1998, LB 234, § 2. AnnotationsThe maker and guarantor of a note are not liable upon the same obligation, so as to be sued together. Ayres v. West, 86 Neb. 297, 125 N.W. 583 (1910); Mowery v. Mast, 9 Neb. 445, 4 N.W. 69 (1880).Parties who are severally liable upon a written contract may be impleaded in one action thereon. Champlin Bros. v. Sperling, 84 Neb. 633, 121 N.W. 976 (1909).Any or all of persons severally liable on promissory note may be included in action at option of plaintiff. Palmer v. McFarlane, 73 Neb. 178, 102 N.W. 256 (1905).Where written guarantee constitutes endorsement also, maker and endorsers may be sued jointly in action on note. Weitz v. Wolfe, 28 Neb. 500, 44 N.W. 485 (1890).Maker and several endorsers may be sued together in one action. Pearson v. Kansas Mfg. Co., 14 Neb. 211, 15 N.W. 346 (1883).Joinder of several defendants under state statute, notwithstanding several liability, does not create joint liability so as to preclude removal to federal court by nonresident defendant. Des Moines Elevator & Grain Co. v. Underwriters' Grain Assn., 63 F.2d 103 (8th Cir. 1933).Statute does not prevent removal to federal court of action on note; statute does not make obligations, which are several, joint. Stewart v. Nebraska Tire & Rubber Co., 39 F.2d 309 (8th Cir. 1930), affirming Stewart v. Heisler, 32 F.2d 519 (N.D. Iowa 1929).

25-321 Unknown defendants; how designated.

25-321. Unknown defendants; how designated.When the plaintiff is ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name, or any name and description, followed by the words, "real name unknown". In any such case the person intended shall thereupon be regarded as a defendant in such action or proceeding and as sufficiently identified therein for all purposes, including service of summons or constructive service when authorized and as prescribed in Chapter 25. In any action wherein it is alleged in the complaint or other pleading that there are persons who have or that there are persons who claim or appear to have some interest in, right or title to, or lien upon any real or personal property within this state involved in such action, and that the ownership of, interest in, rights or title to, or lien upon such property of such persons, does not appear of record, in or by their respective names, in the county wherein such property is situated, and that the plaintiff or person in whose behalf such allegations are made, after diligent investigation and inquiry, is unable to ascertain and does not know the names or whereabouts if in this state, or the residence of such persons, such action may proceed against all such persons designated as "all persons having or claiming any interest in" such property which shall be accurately and definitely described, followed by the words, "real names unknown". SourceR.S.1867, Code § 148, p. 416; R.S.1913, § 7602; Laws 1915, c. 142, § 1, p. 310; Laws 1917, c. 138, § 1, p. 325; Laws 1921, c. 226, § 1, p. 815; C.S.1922, § 8545; C.S.1929, § 20-321; R.S.1943, § 25-321; Laws 1983, LB 447, § 17; Laws 2002, LB 876, § 7.Annotations1. Designation of defendants2. Service3. Miscellaneous1. Designation of defendantsIn suit to quiet title against all persons having or claiming interest in designated lands, a default decree is conclusive against all persons not in possession or record holders thereof. State ex rel. Conkey v. Ryan, 136 Neb. 334, 285 N.W. 923 (1939).Legal name of defendant includes his first Christian name, and surname or patronymic; affidavit and published summons must contain these, not initials. Nelson v. Sughrue, 93 Neb. 480, 140 N.W. 800 (1913); Butler v. Smith, 84 Neb. 78, 120 N.W. 1106 (1909); Herbage v. McKee, 82 Neb. 354, 117 N.W. 706 (1908); Stull v. Masilonka, 74 Neb. 309, 104 N.W. 188 (1905), rehearing denied, 74 Neb. 322, 108 N.W. 166 (1906); Gillian v. McDowall, 66 Neb. 814, 92 N.W. 991 (1902); Enewold v. Olsen, 39 Neb. 59, 57 N.W. 765 (1894).In constructive notice in suit to foreclose mortgage, legal name includes first Christian name and surname. McCabe v. Equitable Land Co., 88 Neb. 453, 129 N.W. 1018 (1911); Butler v. Smith, 84 Neb. 78, 120 N.W. 1106 (1909).2. ServiceService by publication did not bind parties in actual possession of land. Thomas v. Flynn, 169 Neb. 458, 100 N.W.2d 37 (1959).Where statute has been followed, service by publication is conclusive against all persons except those in actual possession. Durfee v. Keiffer, 168 Neb. 272, 95 N.W.2d 618 (1959).Parties in actual possession of easement were not subject to service under this section. Jurgensen v. Ainscow, 155 Neb. 701, 53 N.W.2d 196 (1952).Where there is no service, or insufficient service, judgment against the person is void. Henze v. Mitchell, 93 Neb. 278, 140 N.W. 149 (1913).A court acquires jurisdiction over defendant by personal service of process, even though he be defectively described therein. Wm. Krotter & Co. v. Norton, 84 Neb. 137, 120 N.W. 923 (1909).Where defendant sued by his initials only files answer, it is waiver of defect in service. Scarborough v. Myrick, 47 Neb. 794, 66 N.W. 867 (1896).Applies to given name and surname; where either is unknown, there must be actual personal service. Enewold v. Olsen, 39 Neb. 59, 57 N.W. 765 (1894).3. MiscellaneousStatement must be made in verification to petition or affidavit that plaintiff could not discover true name. Stratton v. McDermott, 89 Neb. 622, 131 N.W. 949 (1911).To be ignorant of either the given name or a surname of a person is to be ignorant of a person's name within this section. McNamara v. Gunderson, 89 Neb. 112, 131 N.W. 183 (1911).

25-322 Substitution of parties; death; disability; transfer of interest.

25-322. Substitution of parties; death; disability; transfer of interest.An action does not abate by the death or other disability of a party, or by the transfer of any interest therein during its pendency, if the cause of action survives or continues. In the case of the death or other disability of a party, the court may allow the action to continue by or against his or her 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. SourceR.S.1867, Code § 45, p. 399; R.S.1913, § 7603; C.S.1922, § 8546; C.S.1929, § 20-322; R.S.1943, § 25-322; Laws 2006, LB 1115, § 13. Annotations1. Survival of cause of action2. Transfer of interest3. Miscellaneous1. Survival of cause of actionDivorce suit does not survive death of party before decree becomes final. Williams v. Williams, 146 Neb. 383, 19 N.W.2d 630 (1945).Cause of action for widow's allowance does not survive; hence cannot be revived. In re Samson's Estate, 142 Neb. 556, 7 N.W.2d 60 (1942).Foreclosure action brought by trustees did not abate on death of one trustee. Kennedy v. Potts, 128 Neb. 213, 258 N.W. 471 (1935).When plaintiff dies from injuries for which he brought suit, administrator is entitled to recover for benefit of estate what plaintiff would have been entitled to if he had survived. Murray v. Omaha Transfer Co., 95 Neb. 175, 145 N.W. 360 (1914), on rehearing, 98 Neb. 482, 153 N.W. 488 (1915).Where action proceeds to decree after death of plaintiff without substitution of personal representative, decree is not open to collateral attack. Wardrobe v. Leonard, 78 Neb. 531, 111 N.W. 134 (1907).Where party becomes incapacitated after commencement of action, it is duty of court to protect his interests. Simmons v. Kelsey, 72 Neb. 534, 101 N.W. 1 (1904).An action on a single contract debt, for which a man's heirs as such are not liable, cannot be continued against such heirs. Buck v. Hogeboom, 63 Neb. 672, 88 N.W. 857 (1902).Substitution of heir at law for administrator is not equivalent to bringing new action, within meaning of statute of limitations. Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N.W. 949 (1901).Pending action for personal injury does not abate by death of plaintiff. Webster v. City of Hastings, 59 Neb. 563, 81 N.W. 510 (1900).Action does not abate by the removal or discharge of an administrator as plaintiff during its pendency. Edney v. Baum, 2 Neb. Unof. 173, 96 N.W. 167 (1901).2. Transfer of interestThe transfer of interest after an action is commenced does not prevent the action from being continued to final termination in the name of the original plaintiff. Eli's, Inc. v. Lemen, 256 Neb. 515, 591 N.W.2d 543 (1999).Where there was a transfer of interest, action could be continued in name of original party defendant. Anest v. Chester B. Brown Co., 169 Neb. 330, 99 N.W.2d 615 (1959).Transfer of interest after action has been commenced does not prevent action from being continued to final termination in name of original party. Exchange Elevator Co. v. Marshall, 147 Neb. 48, 22 N.W.2d 403 (1946).Transfer of interest pending appeal is not ground for dismissal of appeal. State ex rel. Sorensen v. Lincoln Hail Ins. Co., 133 Neb. 496, 276 N.W. 169 (1937).One who purchases choses in action during the pendency of a suit thereon may carry on the suit in the name of the original plaintiff, and may maintain an action in the name of the original plaintiff and obligee in a redelivery bond given to secure the return of property attached in the suit. Commercial Nat. Bank of Kearney v. Faser, 99 Neb. 105, 155 N.W. 601 (1915).Where suit was properly commenced by mortgagees, it was properly prosecuted to final decree in their names notwithstanding transfer of interest pending litigation. Burns v. Hockett, 91 Neb. 546, 136 N.W. 348 (1912).Substitution of one party plaintiff for another in a pending action is a continuation of the original rather than the commencement of a new action. State Bank of Gothenburg v. Carroll, 81 Neb. 484, 116 N.W. 276 (1908).Stay filed before transfer of interest may be availed of by transferee. Jenkins Land & Live Stock Co. v. Attwood, 80 Neb. 806, 115 N.W. 305 (1908).Substitution of parties does not modify the issues, and evidence taken before such transfer should be considered in the same manner as if there had been no change in parties. Munger v. Yeiser, 80 Neb. 285, 114 N.W. 166 (1907).Action commenced by receiver may be continued in his name notwithstanding sale of his interest. Schaberg v. McDonald, 60 Neb. 493, 83 N.W. 737 (1900).Substitution of parties on transfer of interest does not release surety on appeal bond. Howell v. Alma Milling Co., 36 Neb. 80, 54 N.W. 126 (1893).3. MiscellaneousAn order reviving an action, whether the order was entered in proceedings under this section or under sections 25-1403 to 25-1420, is not a final order from which an appeal may immediately be taken. The order may be reviewed after final judgment in the case. Platte Valley Nat. Bank v. Lasen, 273 Neb. 602, 732 N.W.2d 347 (2007).When sole plaintiff in foreclosure proceedings dies, no further proceedings can be had until action is revived. Vybiral v. Schildhauer, 144 Neb. 114, 12 N.W.2d 660 (1944).Permitting assignee to intervene and become, in fact, a party plaintiff was not prejudicial, in view of this section. Rea v. Pierson, 114 Neb. 173, 206 N.W. 760 (1925).This section applies to the prosecution of a claim against an estate in probate proceedings. Harman v. Harman, 62 Neb. 452, 87 N.W. 177 (1901).Right of revivor under this section rests in discretion of trial court and is governed by equitable principles. Hayden v. Huff, 62 Neb. 375, 87 N.W. 184 (1901).This section is not applicable to plaintiff in an action of replevin. Flanders v. Lyon & Healy, 51 Neb. 102, 70 N.W. 524 (1897).It is proper practice to revive an action to file supplemental pleadings and issue summons. Rakes v. Brown, 34 Neb. 304, 51 N.W. 848 (1892).

25-323 Necessary parties; brought into suit; procedure.

25-323. Necessary parties; brought into suit; procedure.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.Any person whose negligence was or may have been a proximate cause of an accident or occurrence alleged by the plaintiff, other than parties who have been released by the plaintiff and are not subject to suit pursuant to section 25-21,185.11, may be brought into the suit by any party in the manner provided in section 25-331 or 25-705. SourceR.S.1867, Code § 46, p. 400; R.S.1913, § 7604; C.S.1922, § 8547; C.S.1929, § 20-323; R.S.1943, § 25-323; Laws 1995, LB 411, § 1; Laws 2002, LB 876, § 8.Annotations1. Necessary parties2. Unnecessary parties3. Miscellaneous1. Necessary partiesThe presumed father of a child conceived and born during the marriage to the child's mother is an indispensable party to a suit initiated by the putative biological father to establish his paternity and obtain custody of the child. Helter v. Williamson, 239 Neb. 741, 478 N.W.2d 6 (1991).The Code of Civil Procedure declares if a determination of the controversy cannot be had without the presence of the parties, the court must order them to be brought into the litigation. Koch v. Koch, 226 Neb. 305, 411 N.W.2d 319 (1987).Indispensable parties to a suit are those who not only have an interest in the subject matter of the controversy, but also have an interest of such a nature that a formal decree cannot be made without affecting their interests, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. Johnson v. Mays, 216 Neb. 890, 346 N.W.2d 401 (1984).In an action involving the disbursement of county funds, the county has a great, if not exclusive, interest, and is a necessary party to the action. Shepoka v. Knopik, 197 Neb. 651, 250 N.W.2d 619 (1977).Lienholders were necessary parties but their claims having been paid subsequently, the refusal to order them added was error without prejudice. LaPuzza v. Prom Town House Motor Inn, Inc., 191 Neb. 687, 217 N.W.2d 472 (1974).Where validity of tax levy for nonresident high school tuition is attacked, all receiving high school districts are necessary parties. Werth v. Buffalo County Board of Equalization, 187 Neb. 119, 188 N.W.2d 442 (1971).When determination of a controversy cannot be had without the presence of new parties to the suit, the court should order them brought in. Whitaker v. Gering Irr. Dist., 183 Neb. 290, 160 N.W.2d 186 (1968).In case to determine title of United States to public land, where United States is not a party to the action, no judgment or decree which could be entered could be binding in any manner on United States. Summerville v. Scotts Bluff County, 182 Neb. 311, 154 N.W.2d 517 (1967).Where a determination of a controversy cannot be had without the presence of a new party, the court may order the new party brought into the suit. Midwest Laundry Equipment Corp. v. Berg, 174 Neb. 747, 119 N.W.2d 509 (1963).Beneficiaries of trust could be ordered by the court to be brought into the case as parties. Workman v. Workman, 167 Neb. 857, 95 N.W.2d 186 (1959).State was proper party to suit to reform deed. Rumbel v. Ress, 167 Neb. 359, 92 N.W.2d 904 (1958).Court should bring in new parties when controversy cannot be determined without their presence. Burke Lumber & Coal Co. v. Anderson, 162 Neb. 551, 76 N.W.2d 630 (1956).In declaratory judgment proceeding, court should order all necessary parties brought in or refuse to enter judgment. Redick v. Peony Park, 151 Neb. 442, 37 N.W.2d 801 (1949).The court is only required to order new parties brought in when a determination of the controversy cannot be had without their presence. Dent v. City of North Platte, 148 Neb. 718, 28 N.W.2d 562 (1947).When the determination of a controversy cannot be had without the presence of new parties to the suit, the court should order them brought in. Cunningham v. Brewer, 144 Neb. 218, 16 N.W.2d 533 (1944).Court, on own motion, is authorized to make a necessary party defendant in equity suit. Toop v. Palmer, 108 Neb. 850, 189 N.W. 394 (1922).Court must order necessary new parties brought in. Phoenix Mutual Life Ins. Co. v. City of Lincoln, 87 Neb. 626, 127 N.W. 1069 (1910).Section does not prevent court ordering in necessary parties at any time. Brown v. Brown, 71 Neb. 200, 98 N.W. 718 (1904).Supreme Court may remand equity case to have necessary parties brought in. Smith v. Shaffer, 29 Neb. 656, 45 N.W. 936 (1890).Court will not decide rights of absent parties. Koenig v. Chicago, B. & Q. R. Co., 27 Neb. 699, 43 N.W. 423 (1889).2. Unnecessary partiesThe stepfather of a child born out of wedlock is not an indispensable party in a filiation proceeding against the putative biological father for support. State on behalf of J.R. v. Mendoza, 240 Neb. 149, 481 N.W.2d 165 (1992).Department of Environmental Control and county zoning officials are not indispensable parties in a suit against a licensee for a solid waste disposal area where the suit is to enjoin against alleged violation of a county zoning ordinance. Omaha Fish and Wildlife Club, Inc. v. Community Refuse, Inc., 208 Neb. 110, 302 N.W.2d 379 (1981).Court may determine rights between parties before it when it can be done without prejudice to rights of others or by saving their rights. Bailey v. McCoy, 187 Neb. 618, 193 N.W.2d 270 (1971).Lessee was not necessary party to complete determination of quo warranto suit between state and lessor. State ex rel. Johnson v. Conservative Savings & Loan Assn., 143 Neb. 805, 11 N.W.2d 89 (1943).Controversy could be determined without joinder of party who had sold interest in contract of purchase. Pollard v. Larson, 115 Neb. 136, 211 N.W. 998 (1927).In action for personal injuries, one who may be liable to defendant as indemnitor need not be made additional defendant. Kaplan v. City of Omaha, 100 Neb. 567, 160 N.W. 960 (1916).3. MiscellaneousFact that someone other than defendant operator owned property involved does not necessarily make the owner an indispensable party in action to abate nuisance. City of Omaha v. Danner, 186 Neb. 701, 185 N.W.2d 869 (1971).In mortgage foreclosure proceeding, court may determine controversy between parties as to ownership of land covered by the mortgage. Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58, 8 N.W.2d 545 (1943).Cited in action in nature of creditor's bill to set aside certain conveyances. Robinson v. Williams, 136 Neb. 253, 285 N.W. 574 (1939).Purchaser of choses in action during pendency of suit may proceed in name of original plaintiff. Commercial Nat. Bank of Kearney v. Faser, 99 Neb. 105, 155 N.W. 601 (1915).Failure to dismiss for misjoinder of plaintiffs in equity is not prejudicial; court may decide rights between parties severally. Hamilton v. Allen, 86 Neb. 401, 125 N.W. 610 (1910).Plaintiff cannot complain because court did not order in party who might intervene. Gamble v. Wilson, 33 Neb. 270, 50 N.W. 3 (1891).Claim for damages for breach of warranty can be determined in replevin action. Smith v. Kinney, 32 Neb. 162, 49 N.W. 341 (1891).

25-324 Actions for recovery of real or personal property; interest in property; intervention.

25-324. Actions for recovery of real or personal property; interest in property; intervention.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. SourceR.S.1867, Code § 47, p. 400; R.S.1913, § 7605; C.S.1922, § 8548; C.S.1929, § 20-324; R.S.1943, § 25-324.AnnotationsA bidder at judicial sale, whose bid has been accepted, may appeal from an order setting the sale aside. Dawson County v. Whaley, 134 Neb. 509, 279 N.W. 164 (1938).Mere fact that party claims to be owner of attached property does not give him right to intervene in the attachment and thus have question of his ownership determined in attachment suit. Geis v. Geis, 125 Neb. 394, 250 N.W. 252 (1933).A mere contingent liability to answer to defendant is not sufficient ground for intervention. Omaha Southern Ry. Co. v. Beeson, 36 Neb. 361, 54 N.W. 557 (1893).Must claim some interest in subject of action; title to land attached, in action against maker of note, is insufficient. Kimbro v. Clark, 17 Neb. 403, 22 N.W. 788 (1885).

25-325 Interpleader by order of court upon affidavit of defendant.

25-325. Interpleader by order of court upon affidavit of defendant.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 the defendant, has or makes a claim to the subject of the action, and that the defendant is ready to pay or dispose of the same as the court may direct, the court may make an order for the safekeeping, or for the payment, or deposit in court, or delivery of the subject of the action, to such person as it may direct, and an order requiring such third party to appear in a reasonable time and maintain or relinquish his or her claim against the defendant. If such third party, being served with a copy of the order by the sheriff or such other person as the court may direct, fails to appear, the court may declare such third party barred of all claim in respect to the subject of the action against the defendant therein. If such third party appears, he or she shall be allowed to make himself or herself the defendant in the action in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon compliance by the defendant with the order of the court for the payment, deposit, or delivery thereof. SourceR.S.1867, Code § 48, p. 400; R.S.1913, § 7606; C.S.1922, § 8549; C.S.1929, § 20-325; R.S.1943, § 25-325; Laws 2006, LB 1115, § 14.Annotations1. Payment into court2. Interpleader3. Miscellaneous1. Payment into courtStakeholder should pay or offer to pay fund into court so that disposition thereof may be made effective. Burke Lumber & Coal Co. v. Anderson, 162 Neb. 551, 76 N.W.2d 630 (1956).Where one owing debt claimed by several persons files application in district court making respective claimants parties, brings money into court, and prays for determination of ownership, proceeding is interpleader under statute. Citizens Nat. Bank of Wisner v. McNamara, 120 Neb. 252, 231 N.W. 781 (1930).This section protects depository or escrow holder, who interpleads in good faith, from vexation and expense of litigation. Farming Corp. v. Bridgeport Bank, 113 Neb. 323, 202 N.W. 911 (1925).Where not otherwise ordered, failure to bring money into court subjects defendant to interest. Elkhorn Valley Lodge No. 57, I.O.O.F. v. Hudson, 59 Neb. 672, 81 N.W. 859 (1900).2. InterpleaderA defendant may interplead in a declaratory judgment proceeding. United Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N.W.2d 174 (1961).One who precipitated litigation cannot maintain interpleader. Strasser v. Commercial Nat. Bank, 157 Neb. 570, 60 N.W.2d 672 (1953).A bill of interpleader is an equitable remedy whereby a disinterested stockholder in possession of a fund or other property claimed by each of rival claimants may require them to litigate the issue of ownership without embroiling him. Provident Savings & Loan Assn. v. Booth, 138 Neb. 424. 293 N.W. 293 (1940).Remedy provided by this section is a substitute for the equity remedy, although somewhat broader. Hartford Life & Annuity Ins. Co. v. Cummings, 50 Neb. 236, 69 N.W. 782 (1897).Bailee may not interplead bailor and third party. Schellenberg v. Fremont, E. & M. V. R. Co., 45 Neb. 487, 63 N.W. 859 (1895).3. MiscellaneousIn an interpleader suit between two assignees of claim against county, party who first filed notice with county was entitled to fund. Greeley County v. First Nat. Bank of Cozad, 126 Neb. 872, 254 N.W. 502 (1934).Purchaser may protect himself from double payment by interpleading real owner and vendor. Jaques v. Dawes, 3 Neb. Unof. 752, 92 N.W. 570 (1902).

25-326 Interpleader; when sheriff or other officer defendant.

25-326. Interpleader; when sheriff or other officer defendant.The provisions of section 25-325 shall be applicable to an action brought against a sheriff, or other officer, for the recovery of personal property taken by him or her under execution or for the proceeds of such property so taken and sold by him or her. The defendant in such action shall be entitled to the benefit of those provisions against the party in whose favor the execution issued, upon exhibiting to the court the process under which the defendant acted, with his or her affidavit that the property or its proceeds was taken under such process. SourceR.S.1867, Code § 49, p. 400; R.S.1913, § 7607; C.S.1922, § 8550; C.S.1929, § 20-326; R.S.1943, § 25-326; Laws 2006, LB 1115, § 15.

25-327 Substitution; plaintiff in execution for sheriff or other officer.

25-327. Substitution; plaintiff in execution for sheriff or other officer.In an action against a sheriff or other officer for the recovery of property taken under an execution, and replevied by the plaintiff in such action, the court may, upon application of the defendant and of the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the costs being given. SourceR.S.1867, Code § 50, p. 400; R.S.1913, § 7608; C.S.1922, § 8551; C.S.1929, § 20-327; R.S.1943, § 25-327.AnnotationsWhen garnishee answers that he has money belonging to judgment debtor, one may intervene who claims money and who is not a party to proceedings, and contest right of plaintiff. Farrington v. Fleming Comm. Co., 94 Neb. 108, 142 N.W. 297 (1913).Court cannot order substitution after final judgment. Hicklin v. Nebraska City National Bank, 8 Neb. 463, 1 N.W. 135 (1879).

25-328 Intervention; right; procedure.

25-328. Intervention; right; procedure.Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in any of the courts of the State of Nebraska, may become a party to an action between any other persons or corporations, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendants in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the action, and before the trial commences. SourceLaws 1887, c. 100, § 2, p. 655; R.S.1913, § 7609; C.S.1922, § 8552; C.S.1929, § 20-328; R.S.1943, § 25-328; Laws 2002, LB 876, § 9.Annotations1. Right of intervention2. Procedure1. Right of interventionThe interest required as a prerequisite to intervention is a direct and legal interest in the controversy, which is an interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action. Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (2007).In order to intervene under this section, the intervenor must have a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action. Spear T Ranch v. Knaub, 271 Neb. 578, 713 N.W.2d 489 (2006).Under equity principles, laches, or unreasonable delay, is a proper reason to deny intervention. Merz v. Seeba, 271 Neb. 117, 710 N.W.2d 91 (2006).A direct and legal interest is an interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action. Douglas Cty. Sch. Dist. 0001 v. Johanns, 269 Neb. 664, 694 N.W.2d 668 (2005).As a prerequisite to intervention under this section, the intervenor must have a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment that may be rendered in the action. A noncustodial parent whose parental rights have not been terminated and who has been involved in his or her minor child's life has a direct and legal interest in such minor child's name-change proceeding. In re Change of Name of Davenport, 263 Neb. 614, 641 N.W.2d 379 (2002).A foster parent does not have an interest in the placement of an adjudicated child sufficient to warrant intervention in juvenile proceedings as a matter of right, but is entitled to notice and an opportunity to participate in all court reviews pertaining to a child in foster care placement. In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002).This section requires only that an intervenor have a direct and legal interest in the matter in litigation, and no exception is made for a party already adequately represented. Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).Mere possibility of benefit upon liquidation of a charity held not sufficient interest to support intervention as a matter of right. Colman v. Colman Foundation, Inc., 199 Neb. 263, 258 N.W.2d 128 (1977).No third party has right to intervene in a criminal case and appeal of news media from restrictive order is dismissed. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975).Anyone having an interest in the result of pending litigation may intervene as a matter of right. Geer-Melkus Constr. Co., Inc. v. Hall County Museum Board, 186 Neb. 615, 185 N.W.2d 671 (1971).Uninsured motorist's insurance carrier generally has right to intervene in litigation between insured and uninsured tort-feasor. Heisner v. Jones, 184 Neb. 602, 169 N.W.2d 606 (1969).A party having an interest in a suit to establish a trust may intervene before trial begins. Workman v. Workman, 174 Neb. 471, 118 N.W.2d 764 (1962).To be filed as a matter of right, a petition in intervention must be filed before trial. Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959).Taxpayers are not qualified to intervene in matters of public interest prosecuted or defended in good faith for a governmental subdivision by its proper officials. Noble v. City of Lincoln, 158 Neb. 457, 63 N.W.2d 475 (1954).Landowners damaged by construction of ditch had right to intervene. Lackaff v. Bogue, 158 Neb. 174, 62 N.W.2d 889 (1954).One having an interest in the result of pending litigation may intervene as a matter of right. Gilbert v. First Nat. Bank of Minatare, 154 Neb. 404, 48 N.W.2d 401 (1951).Ordinarily there is no right of intervention by third parties in an action for divorce. Harris v. Harris, 151 Neb. 191, 36 N.W.2d 849 (1949).To authorize intervention, interest in litigation must be direct and immediate. Best & Co., Inc. v. City of Omaha, 149 Neb. 868, 33 N.W.2d 150 (1948).A senior appropriator of water has an absolute right to intervene to protect his interest in injunction suit by junior appropriator against officials charged with administration of irrigation laws. Platte Valley Irr. Dist. v. Tilley, 142 Neb. 122, 5 N.W.2d 252 (1942).One having an interest in the result of pending litigation may intervene as a matter of right. Allen v. City of Omaha, 136 Neb. 620, 286 N.W. 916 (1939).Creditors have a right to intervene in suit to recover stockholder's liability. Hoffman v. Geiger, 134 Neb. 643, 279 N.W. 350 (1938).Party seeking to intervene must have such a direct and immediate interest in matter in litigation that he will either lose or gain by direct operation and legal effect of the judgment which may be rendered in the action. Cornhusker Electric Co. v. City of Fairbury, 131 Neb. 888, 270 N.W. 482 (1936).To authorize party to intervene, he must have an interest of such a direct and immediate character that he will either gain or lose by the direct legal operation of and effect of the judgment. City of Omaha v. Douglas County, 125 Neb. 640, 251 N.W. 262 (1933).Mere fact that party claims to be owner of attached property does not give him right to intervene in the attachment and thus have question of his ownership determined in attachment suit. Geis v. Geis, 125 Neb. 394, 250 N.W. 252 (1933).Taxpayer's suit to have deposit of school district declared preferred claim, where classified by bank receiver as general claim only, and where district officers neglect or refuse to prosecute claim further, was proper hereunder. State ex rel. Sorensen v. American Bank of Mitchell, 121 Neb. 862, 238 N.W. 753 (1931).State may intervene to resist demands of those claiming estate of decedent. In re O'Connor's Estate, 117 Neb. 636, 222 N.W. 57 (1928).Section should be liberally construed; but where intervener's pleading failed to show any interest in controversy, he has no standing; mere assertion is not sufficient. Parker v. City of Grand Island, 115 Neb. 892, 215 N.W. 127 (1927).Where interested person is not made party, ordinarily he may intervene as matter of right. Webb v. Patterson, 114 Neb. 346, 207 N.W. 522 (1926).Intervention under this section is matter of right, but equity courts may also allow intervention after trial has begun. Engdahl v. Laverty, 110 Neb. 672, 194 N.W. 862 (1923).Any person claiming interest may intervene, as matter of right, in probate proceedings. In re Estate of Keller, 101 Neb. 115, 162 N.W. 511 (1917).Parties not owners of real estate in proposed drainage district are not entitled to intervene in proceedings. Latham v. Chicago, B. & Q. R. Co., 100 Neb. 173, 158 N.W. 923 (1916).All interested in estate are parties to probate proceedings whether named or not. In re Estate of Sweeney, 94 Neb. 834, 144 N.W. 902 (1913).Mortgagor who conveyed by warranty deed may intervene to plead usury in action to foreclose. Pitman v. Ireland, 64 Neb. 675, 90 N.W. 540 (1902).The shareholders may intervene in pending suits for the purpose of protecting their own interests, where the officers of a corporation fail and refuse to protect and conserve the corporate property. State ex rel. Bugbee v. Holmes, 60 Neb. 39, 82 N.W. 109 (1900).Creditor may not ordinarily intervene in action by receivers against stockholders of bank. Brown v. Brink, 57 Neb. 606, 78 N.W. 280 (1899).Receiver of corporation may intervene to defend action. Andrews v. Steele City Bank, 57 Neb. 173, 77 N.W. 342 (1898).Subsequent attaching creditor may intervene to have priority of levies decided. Deere, Wells & Co. v. Eagle Mfg. Co., 49 Neb. 385, 68 N.W. 504 (1896).A mere contingent liability to answer over to the defendant, without any privity with the plaintiff, is not sufficient interest in the controversy to entitle a third person to intervene. Omaha Southern Ry. Co. v. Beeson, 36 Neb. 361, 54 N.W. 557 (1893).Assignee chosen by creditors should intervene where assigned property is attached. Commercial Nat. Bank v. Nebraska State Bank, 33 Neb. 292, 50 N.W. 157 (1891).Assignee of note may intervene in replevin of goods by mortgagee. Harman v. Barhydt, 20 Neb. 625, 31 N.W. 488 (1886).The interest required as a prerequisite to intervention under this section is a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action. In re Interest of Jamie P., 12 Neb. App. 261, 670 N.W.2d 814 (2003).Although a party may not intervene after judgment as a matter of right, a court of equity may allow intervention after judgment. However, intervention should not be allowed after judgment where the party seeking to intervene had an opportunity to intervene at an earlier time, yet delayed in doing so. Association of Commonwealth Claimants v. Hake, 2 Neb. App. 123, 507 N.W.2d 665 (1993).2. ProcedureThe existence of a statutory right of intervention before trial does not prevent a court of equity from allowing intervention after judgment. Meister v. Meister, 274 Neb. 705, 742 N.W.2d 746 (2007).A party cannot appeal from an order or judgment which was made with his consent, directly or through his counsel, or upon that party's application. Reindertson v. Long, 198 Neb. 397, 253 N.W.2d 40 (1977).Right to intervene may be exercised at any time before trial commences. Pribil v. French, 179 Neb. 602, 139 N.W.2d 356 (1966).A petition in intervention may be filed as a matter of right before trial. Lincoln Bonding & Ins. Co. v. Barrett, 179 Neb. 367, 138 N.W.2d 462 (1965).Existence of statutory right of intervention before trial does not prevent a court of equity from allowing intervention after judgment. State ex rel. City of Grand Island v. Tillman, 174 Neb. 23, 115 N.W.2d 796 (1962).Striking of petition of intervention of landlord in suit by tenant against elevator company was erroneous. Anest v. Chester B. Brown Co., 169 Neb. 330, 99 N.W.2d 615 (1959).Petition in intervention must state such facts as, if conceded to be true, will entitle applicant to some relief. Ash v. City of Omaha, 152 Neb. 393, 41 N.W.2d 386 (1950).The right of a party to intervene in an action is absolute, provided he exhibits a pleading containing allegations which demonstrate a right in the subject matter being litigated. Wightman v. City of Wayne, 146 Neb. 944, 22 N.W.2d 294 (1946).Party may intervene in tax foreclosure proceedings and make increased bid before confirmation of judicial sale. County of Nance v. Thomas, 146 Neb. 640, 20 N.W.2d 925 (1945).An intervener who is not an indispensable party cannot change the position of the original parties or change the nature and form of the action or the issues presented therein. State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N.W.2d 683 (1945).Trial court may, in its discretion, permit intervention after commencement of trial. Conkey v. Knudsen, 143 Neb. 5, 8 N.W.2d 538 (1943).An intervener must take the suit as he finds it, is bound by previous proceedings in the case, and cannot complain of the form of the action or of informalities or defects in the proceedings between the original parties. Drainage Dist. No. 1 of Lincoln County v. Kirkpatrick-Pettis Co., 140 Neb. 530, 300 N.W. 582 (1941).The courts recognize two methods by which intervention may be accomplished; one statutory, the other as a matter of equitable discretion where necessary to administer complete relief between all parties. Department of Banking v. Stenger, 132 Neb. 576, 272 N.W. 403 (1937).Court of equity may, in exercise of its discretion and furtherance of justice, allow intervention after judgment to protect inherent rights in the foreclosure of real estate mortgage. Kitchen Bros. Hotel Co. v. Omaha Safe Deposit Co., 126 Neb. 744, 254 N.W. 507 (1934).Leave to intervene should be denied where proposed intervener has no interest in subject matter different from any other taxpayer and where there is no charge that State Treasurer is not defending action in good faith. State ex rel. Randall v. Hall, 125 Neb. 236, 249 N.W. 756 (1933).To intervene as matter of right under this section, petition must be filed before trial. State v. Farmers State Bank of Decatur, 103 Neb. 194, 170 N.W. 901 (1919).Petition of intervener, who has become party to action, cannot be dismissed until determination on merits. Montgomery v. Dresher, 97 Neb. 112, 149 N.W. 314 (1914).Party may intervene after void judgment is entered; time for appeal dates from dismissal of petition of intervention. Shold v. Van Treeck, 82 Neb. 99, 117 N.W. 113 (1908).Intervener's right must be affected by direct legal operation of judgment; he may not contest grounds of attachment. Danker v. Jacobs, 79 Neb. 435, 112 N.W. 579 (1907).Section does not prevent court ordering in necessary parties. Brown v. Brown, 71 Neb. 200, 98 N.W. 718 (1904).Party may intervene in election contest before dismissal. Moore v. Waddington, 69 Neb. 615, 96 N.W. 279 (1903).Attorney may intervene in proceedings to revive judgment and enforce lien; petition is notice of lien. Greek v. McDaniel, 68 Neb. 569, 94 N.W. 518 (1903).May become party to suit without leave of court. Spalding v. Murphy, 63 Neb. 401, 88 N.W. 489 (1901).Person claiming title to subject matter may intervene any time before trial. McConniff v. Van Dusen, 57 Neb. 49, 77 N.W. 348 (1898).Objection to intervention of stranger may be waived. Chadron Banking Co. v. Mahoney, 43 Neb. 214, 61 N.W. 594 (1895).Where application to intervene is not filed before trial, proposed interveners are not entitled thereto as matter of right. Draver v. Greenshields & Everest Co., 29 F.2d 552 (8th Cir. 1928).Bankruptcy trustee is entitled to sue in federal court to set aside foreclosure on ground of fraud, where adjudication in bankruptcy came too late to permit intervention in foreclosure suit. Stefan v. Raabe, 1 F.2d 129 (8th Cir. 1924).

25-329 Intervention; judgment; costs.

25-329. Intervention; judgment; costs.The court shall determine upon the intervention at the same time that the action is decided, and if the claim of the intervenor is not sustained, the intervenor shall pay all costs of the intervention. SourceLaws 1887, c. 100, § 2, p. 655; R.S.1913, § 7610; C.S.1922, § 8553; C.S.1929, § 20-329; R.S.1943, § 25-329; Laws 2006, LB 1115, § 16.AnnotationsDistrict court may rule on sufficiency of petition of intervention before trial. Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959).Costs are taxed to interveners and relators where they are unsuccessful in a mandamus case. State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N.W.2d 683 (1945).Determination whether intervener has an actual interest in the subject of the controversy is a necessary preliminary question for the trial court's decision and is determinable when the action is finally decided. Drainage Dist. No. 1 of Lincoln County v. Kirkpatrick-Pettis Co., 140 Neb. 530, 300 N.W. 582 (1941).Intervention was unknown at common law and is creature of statute. Geis v. Geis, 125 Neb. 394, 250 N.W. 252 (1933).Section should be liberally construed, but intervener must plead and prove actual interest or be regarded as mere interloper. Parker v. City of Grand Island, 115 Neb. 892, 215 N.W. 127 (1927).A person may intervene as matter of right before trial. In re Estate of Keller, 101 Neb. 115, 162 N.W. 511 (1917).Petition of intervener cannot be dismissed until determination on merits. Montgomery v. Dresher, 97 Neb. 112, 149 N.W. 314 (1914).Petition may be dismissed without prejudice. Lincoln Upholstering Co. v. Baker, 82 Neb. 592, 118 N.W. 321 (1908).

25-330 Intervention; complaint; other pleadings.

25-330. Intervention; complaint; other pleadings.The intervention shall be by complaint, which shall set forth the facts on which the intervention rests, and all the pleadings therein shall be governed by the same rules as other pleadings provided for in Chapter 25. If such complaint is filed during term, the court shall direct the time in which answers thereto shall be filed. SourceLaws 1887, c. 100, § 4, p. 656; R.S.1913, § 7611; C.S.1922, § 8554; C.S.1929, § 20-330; R.S.1943, § 25-330; Laws 2002, LB 876, § 10.AnnotationsSeeking leave to intervene by motion, and not by complaint, is not a procedural bar to intervention under this section. State ex rel. Lanman v. Board of Cty. Commissioners, 277 Neb. 492, 763 N.W.2d 392 (2009).One of the purposes of requiring a petition by a third party to a litigation to intervene is that the petition will frame the issues and interests regarding the intervening party. In re Interest of Kiana T., 262 Neb. 60, 628 N.W.2d 242 (2001).An intervener must plead some interest in the subject matter of the litigation; a mere denial of plaintiff's right is not sufficient to give him standing in court. Drainage Dist. No. 1 of Lincoln County v. Kirkpatrick-Pettis Co., 140 Neb. 530, 300 N.W. 582 (1941).Statute should be liberally construed but must be substantially followed and applicant must bring himself within its provisions. Geis v. Geis, 125 Neb. 394, 250 N.W. 252 (1933).Section should be liberally construed, but intervener must plead and prove actual interest or be regarded as mere interloper. Parker v. City of Grand Island, 115 Neb. 892, 215 N.W. 127 (1927).May intervene as matter of right before trial. In re Estate of Keller, 101 Neb. 115, 162 N.W. 511 (1917).An intervener whose petition does not state facts sufficient to constitute a cause of action, and who does not pray for any judgment which the court has jurisdiction to render, should be dismissed from the action. Iodence v. Peters, 64 Neb. 425, 89 N.W. 1041 (1902).Where filed without leave, court may decide question of intervention with main issue. State ex rel. Bugbee v. Holmes, 59 Neb. 503, 81 N.W. 512 (1900).

25-331 Third-party action; procedure.

25-331. Third-party action; procedure.(1) At any time after commencement of the action, a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than ten days after filing the original answer. Otherwise the third-party plaintiff must obtain leave of the trial court on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall have all the rights of a defendant including the rights authorized by this section. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant shall have all the rights of a defendant including the rights authorized by this section. The court on its own motion, or motion of any party, may move to strike the third-party claim, or for its severance or separate trial if the third-party claim should delay trial, might tend to confuse a jury, or in any way jeopardize the rights of the plaintiff. A third-party defendant or subsequent defendants may proceed under this section.(2) When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this section would entitle a defendant to do so. SourceLaws 1967, c. 144, § 1, p. 441; Laws 2002, LB 876, § 11. AnnotationsA motion to sever a third-party claim is addressed to the discretion of the trial court, and an order granting or denying such motion is reviewed by an appellate court for an abuse of discretion. Hradecky v. State, 264 Neb. 771, 652 N.W.2d 277 (2002).This section requires leave of the trial court before filing a third-party complaint, and whether to grant such leave is entrusted to the discretion of the trial court. A third-party claim under this section may be asserted when a third-party's liability is in some way dependent upon the outcome of the main claim or when the third party is secondarily liable to the defendant. Denial of leave to join a third-party defendant is not a final, appealable order because it does not determine the action and prevent a judgment. The term "defendant" in section 25-21,185.10 includes a third-party defendant brought into an action pursuant to this section. Slaymaker v. Breyer, 258 Neb. 942, 607 N.W.2d 506 (2000).A third-party claim under this section may be asserted when a third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defendant. Dammann v. Litty, 234 Neb. 664, 452 N.W.2d 522 (1990).The granting of leave to file a third-party complaint under this section is within the discretion of the trial court. Employers Reins. Corp. v. Santee Pub. Sch. Dist. No. C-5, 231 Neb. 744, 438 N.W.2d 124 (1989).A third-party action should be dismissed if the evidence adduced at trial establishes that the third party could not be liable to the defendant for all or part of the plaintiff's claim against him. Life Investors Ins. Co. v. Citizens Nat. Bank of Wisner, 223 Neb. 663, 392 N.W.2d 771 (1986).At any time after the commencement of the action, a defendant, as a third-party plaintiff, may cause a summons to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. A third-party claim may be asserted only when the third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to defendant. AgriStor Credit Corp. v. Radtke, 218 Neb. 386, 356 N.W.2d 856 (1984).A third-party claim may be asserted under this section when a third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defendant. Church of the Holy Spirit v. Bevco, Inc., 215 Neb. 299, 338 N.W.2d 601 (1983).The granting of leave to file a third party complaint is a matter entirely within the discretion of the trial court. Northwestern Bell Tel. Co. v. Woodmen of the World Life Ins. Soc., 189 Neb. 30, 199 N.W.2d 729 (1972).

25-401 Local actions involving real estate.

25-401. Local actions involving real estate.All actions to recover damages for any trespass upon or any injury to real estate shall be brought only in the county where such real estate or some part thereof is situated, but such actions may be brought against corporations owning or operating any line of railroad in the state in any county where service of summons can be had, and all actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in section 25-402: (1) For the recovery of real property or of an estate or interest therein; (2) for the partition of real property; and (3) for the sale of real property under a mortgage lien or other encumbrance or charge. SourceR.S.1867, Code § 51, p. 401; Laws 1889, c. 29, § 1, p. 376; Laws 1911, c. 167, § 1, p. 543; R.S.1913, § 7612; C.S.1922, § 8555; C.S.1929, § 20-401; R.S.1943, § 25-401. Cross ReferencesFor provisions on designation of defendants, see section 25-312. Annotations1. Trespass2. Foreclosure3. Damages4. General1. TrespassJurisdiction of action to enjoin trespass on land is vested in district court for county in which land is situated. Fenster v. Isley, 143 Neb. 888, 11 N.W.2d 822 (1943).Action for damages for trespass upon real estate can be brought alone in county where lands are located. Jacobson v. Lynn, 54 Neb. 794, 75 N.W. 243 (1898).2. ForeclosureAction to foreclose a real estate mortgage must be brought in county where land lies. Boehmer v. Heimen, 138 Neb. 376, 293 N.W. 237 (1940).In foreclosure of real estate mortgage, a court having jurisdiction over subject matter, under its broad equity powers, may determine the rights of all persons claiming any interest therein, when properly before it. Department of Banking v. Stenger, 132 Neb. 576, 272 N.W. 403 (1939).Action to foreclose real estate mortgage may be brought only in district court sitting in county where mortgaged realty, or some part thereof, is situated. Prudential Ins. Co. v. Bliss, 123 Neb. 578, 243 N.W. 842 (1932).Action to establish equitable mortgage on real estate is properly brought in county where land is located. Miles v. Martin, 103 Neb. 261, 171 N.W. 907 (1919).Action to foreclose mortgage can only be brought in county where land is situated. Eayrs v. Nason, 54 Neb. 143, 74 N.W. 408 (1898).3. DamagesDrainage district may be sued to recover damages for injury to real estate in county where real estate or some part thereof is situated. Cooper v. Sanitary Dist. No. 1 of Lancaster County, 146 Neb. 412, 19 N.W.2d 619 (1945).Action for damages for injury to realty may be brought only in county where realty is situated. Triplett v. Western Public Service Co., 128 Neb. 835, 260 N.W. 387 (1935).Action for damage to land by drainage ditch must be brought in county where land is located. Dryden v. Peru Bottom Drain. Dist., 99 Neb. 837, 158 N.W. 54 (1916).Action for injury to land from overflow by negligent construction of bridge is transitory. Omaha & R. V. Ry. Co. v. Brown, 29 Neb. 492, 46 N.W. 39 (1890).4. GeneralThe district court for the county wherein real estate is situated is not without jurisdiction to hear and determine actions to quiet title to, or partition same. Page v. Buchfinck, 196 Neb. 135, 242 N.W.2d 610 (1976).District court has jurisdiction to entertain action to quiet title even though construction of will is required. Hahn v. Verret, 143 Neb. 820, 11 N.W.2d 551 (1943).Venue of action to establish that title to land held by plaintiff is held by him in trust, and that the terms of the trust require a sale thereof before an accounting can be had, is the county in which the land lies. Stuckey v. Stuckey, 143 Neb. 610, 10 N.W.2d 458 (1943).Mandamus action is properly brought to compel an irrigation district to build a bridge across one of its canals in county where land is, even though irrigation district is situated and has its principal office or place of business in another county. State ex rel. Johnson v. Central Nebraska Public Power & Irr. Dist., 140 Neb. 471, 300 N.W. 379 (1941).Where one of two courts having concurrent jurisdiction takes cognizance of a case and thereafter loses jurisdiction over the res, the other is no longer deprived of its right to assume jurisdiction over it. Lincoln Joint Stock Land Bank v. Fuller, 132 Neb. 677, 273 N.W. 14 (1937).Accounting suit was properly brought even though it involved real estate situated in another county. Lincoln Safe Deposit Co. v. Yeast, 117 Neb. 344, 220 N.W. 573 (1928).Action to contest city bond election and enjoin bonds must be brought in county where election is held. Russell v. City of Indianola, 105 Neb. 207, 179 N.W. 927 (1920).Action to quiet title must be brought in county where land lies. Rakow v. Tate, 93 Neb. 198, 140 N.W. 162 (1913).Interest includes any right, title or estate in, or lien on land. Johnson v. Samuelson, 82 Neb. 201, 117 N.W. 470 (1908).Action by wife to appropriate land of nonresident husband for alimony may be brought where land is. Rhoades v. Rhoades, 78 Neb. 495, 111 N.W. 122 (1907).Action of ejectment may be brought against nonresident and service obtained by publication. Lantry v. Parker, 37 Neb. 353, 55 N.W. 962 (1893).If action affects title or possession of real estate, action should be brought in county where land lies. Pacific Ry. Co. v. Perkins, 36 Neb. 456, 54 N.W. 845 (1893).Service by publication may be had in actions brought under this section where any or all of the defendants reside out of the state. Brown v. Rice, 30 Neb. 236, 46 N.W. 489 (1890).This section does not prevent action being brought against railroad in county where it has property or credits, under other provisions of this article. Atchison, T. & S. F. Ry. Co. v. Drayton, 292 F. 15 (8th Cir. 1923).

25-402 Local actions involving real estate located in more than one county.

25-402. Local actions involving real estate located in more than one county.If the real property, the subject of the action, be an entire tract, and situated in two or more counties, or if it consists of separate tracts situated in two or more counties, the action may be brought in any county in which any tract or part thereof is situated, unless it be an action to recover the possession thereof. And if the property be an entire tract, situated in two or more counties, an action to recover the possession thereof may be brought in either of such counties; but if it consists of separate tracts in different counties, the possession of such tracts must be recovered by separate actions brought in the counties where they are situated. SourceR.S.1867, Code § 52, p. 401; R.S.1913, § 7613; C.S.1922, § 8556; C.S.1929, § 20-402; R.S.1943, § 25-402. Cross ReferencesFor provisions on designation of defendants, see section 25-312. AnnotationsThe district court for the county wherein real estate is situated is not without jurisdiction to hear and determine actions to quiet title to, or partition same. Page v. Buchfinck, 196 Neb. 135, 242 N.W.2d 610 (1976).Where none of the defendants have or claim any interest adverse to plaintiff in the property situated in the county in which the action is brought, the court has no jurisdiction over land of such defendants in another county. Lippincott v. Wolski, 147 Neb. 930, 25 N.W.2d 747 (1947).An action to foreclose a mortgage on the entire tract may be brought in any county in which any part thereof is situated. State Bank of Nebraska v. Green & Redick, 11 Neb. 303, 9 N.W. 36 (1881). Section is discussed. Atchison, T. & S. F. Ry. Co. v. Drayton, 292 F. 15 (8th Cir. 1923).

25-403 Action for specific performance of land contract.

25-403. Action for specific performance of land contract.An action to compel the specific performance of a contract of sale of real estate may be brought in the county where the defendants or any of them reside; but if all the defendants are nonresidents of the state, it may be brought in the county where the real estate or some part thereof is situated. SourceR.S.1867, Code § 53, p. 401; R.S.1913, § 7614; C.S.1922, § 8557; C.S.1929, § 20-403; R.S.1943, § 25-403. Cross ReferencesFor provisions on designation of defendants, see section 25-312. AnnotationsAction for specific performance was properly brought where defendants resided. Smith v. Hornkohl, 166 Neb. 702, 90 N.W.2d 347 (1958).The word "may" in this statute does not mean "must," and suit for specific performance may be brought in any county where parties are properly before the court. Department of Banking v. Stenger, 132 Neb. 576, 272 N.W. 403 (1937).Specific performance is transitory; may be brought in any county where necessary parties properly before court. Pollard v. Larson, 115 Neb. 136, 211 N.W. 998 (1927).Action to cancel contract for purchase of corporate stock is transitory; although part of relief asked relates to mortgages, action need not be brought in county where mortgaged land is located. Scow v. Bankers Fire Ins. Co., 109 Neb. 241, 190 N.W. 858 (1922).Defendant residing where action is brought must be necessary party. Behr v. Willard, 11 Neb. 601, 10 N.W. 525 (1881).Section is discussed. Atchison, T. & S. F. Ry. Co. v. Drayton, 292 F. 15 (8th Cir. 1923).

25-403.01 Actions; venue; transfer; payment of expenses.

25-403.01. Actions; venue; transfer; payment of expenses.Any action, other than the actions mentioned in sections 25-401 to 25-403, may be brought (1) in the county where any defendant resides, (2) in the county where the cause of action arose, (3) in the county where the transaction or some part of the transaction occurred out of which the cause of action arose, or (4) if all defendants are nonresidents of this state, in any county. When an action has been commenced in any other county, the court in which the action has been commenced shall have jurisdiction over the action, but upon timely motion by a defendant, the court shall transfer the action to the proper court in a county in which such action might have been properly commenced. The court in the county to which the action is transferred, in its discretion, may order the plaintiff or the plaintiff's attorney to pay to the defendant all reasonable expenses, including attorney's fees, incurred by the defendant because of the improper venue or in proceedings to transfer the action. SourceLaws 1986, LB 529, § 23.

25-403.02 Venue; residency; determination.

25-403.02. Venue; residency; determination.For purposes of venue, the following definitions shall apply:(1) Any private corporation organized under the laws of this state and any foreign corporation authorized to transact business in this state is a resident of any county in which it has its registered office or other office or is doing business. A foreign corporation not authorized to transact business in this state is not a resident of this state;(2) A partnership sued in its firm name is a resident of any county in which any partner resides or in which the partnership has an office or is doing business. If all partners are nonresidents of this state and the partnership does not have an office or do business in this state, the partnership is not a resident of this state;(3) A voluntary unincorporated association sued in its own name is a resident of any county in which the association has an office or in which any officer of the association resides. If it has no office in this state and no officer resides in this state, the voluntary unincorporated association is not a resident of this state; and(4) A limited liability company organized under the laws of this state and any foreign limited liability company authorized to transact business in this state is a resident of any county in which it has its registered office or other office or is doing business. A foreign limited liability company not authorized to transact business in this state is not a resident of this state. SourceLaws 1986, LB 529, § 24; Laws 1993, LB 121, § 166.

25-404 Repealed. Laws 1986, LB 529, § 58.

25-404. Repealed. Laws 1986, LB 529, § 58.

25-405 Repealed. Laws 1986, LB 529, § 58.

25-405. Repealed. Laws 1986, LB 529, § 58.

25-406 Repealed. Laws 1986, LB 529, § 58.

25-406. Repealed. Laws 1986, LB 529, § 58.

25-407 Repealed. Laws 1986, LB 529, § 58.

25-407. Repealed. Laws 1986, LB 529, § 58.

25-408 Repealed. Laws 1986, LB 529, § 58.

25-408. Repealed. Laws 1986, LB 529, § 58.

25-409 Repealed. Laws 1986, LB 529, § 58.

25-409. Repealed. Laws 1986, LB 529, § 58.

25-410 Transfer of actions; clerk of transferor court; duties; clerk of transferee court; duties; certain support orders; how treated.

25-410. Transfer of actions; clerk of transferor court; duties; clerkof transferee court; duties; certain support orders; how treated.(1) Forthe convenience of the parties and witnesses or in the interest of justice,a district court of any county,the transferor court, may transfer any civil action to the districtcourt of any other county in this state,the transferee court. The transfer may occur before or after the entry ofjudgment, and there shall be no additional fees required for the transfer.(2) To transfera civil action, the transferor court shall order transfer of the action tothe specific transferee court requested. The clerk of the transferor courtshall file with the transferee court within ten days after the entry of thetransfer order: Certification of the proceedings; all original documents ofthe action; certification of the transcript of docket entries; and certificationof the payment records of any judgment in the action maintained by the transferorcourt. (3) Upon the filing of such documents by the clerk of the transferorcourt, the clerk of the transferee court shall enter any judgment in the actionon the judgment record of the transferee court. The judgment, once filed andentered on the judgment record of the transferee court, shall be a lien onthe property of the debtor in any county in which such judgment is filed.Transfer of the action shall not change the obligations of the parties underany judgment entered in the action regardless of the status of the transfer.(4) If thetransferred civil action involves a support order that has payment recordsmaintained by the Title IV-D Division as defined in section 43-3341, the transferorcourt order shall notify the division to make the necessary changes in thesupport payment records. Support payments shall commence in the transfereecourt on the first day of the month following the order of transfer, paymentsmade prior to such date shall be considered payment on a judgment enteredby the transferor court, and payments made on and after such date shall beconsidered payment on a judgment entered by the transferee court. SourceR.S.1867, Code § 61, p. 402; G.S.1873, c. 57, § 61, p. 532; R.S.1913, § 7621; C.S.1922, § 8564; C.S.1929, § 20-410; R.S.1943, § 25-410; Laws 1971, LB 576, § 8; Laws 2010, LB712, § 1.Operative Date: July 15, 2010 Cross ReferencesFor disqualification of judge, see sections 24-723.01, 24-739, and 24-740. Annotations1. Abuse of discretion2. Bias or prejudice3. Authority to transfer actions1. Abuse of discretionWhere record does not show abuse of discretion, a ruling on motion to transfer hereunder will not be disturbed. Johnsen v. Parks, 189 Neb. 712, 204 N.W.2d 804 (1973).Failure to grant change of venue in equity case was immaterial on appeal, since case was for trial de novo in reviewing court. Lippincott v. Lippincott, 144 Neb. 486, 13 N.W.2d 721 (1944).Where only showing made in support of motion for change of venue is affidavit which was not offered in evidence and was not incorporated in bill of exceptions, error cannot be predicated on appeal from order overruling motion. Dunlap v. Loup River Public Power Dist., 136 Neb. 11, 284 N.W. 742 (1939).Supreme Court will not disturb ruling of lower court on motion for change of venue unless abuse of discretion is shown. Markel v. Glassmeyer, 132 Neb. 716, 273 N.W. 33 (1937).Ruling should not be disturbed on appeal unless discretion is abused. Boyd v. Chicago, B. & Q. R. R. Co., 97 Neb. 238, 149 N.W. 818 (1914).Unless abuse of discretion is shown, ruling on motion should not be disturbed. Hinton v. Atchison & Nebraska R. R. Co., 83 Neb. 835, 120 N.W. 431 (1909).2. Bias or prejudiceWhere fair and impartial trial cannot be had, court must change; if fair trial cannot be had in adjoining county, change should be made to other county in district. Gandy v. Bissell's Estate, 81 Neb. 102, 115 N.W. 571 (1908).Ruling will not be reversed unless prejudice is shown by clear and convincing evidence. State v. Smith, 77 Neb. 824, 110 N.W. 557 (1906).Judge is not disqualified to sit in contempt case to try violation of own order. Back v. State, 75 Neb. 603, 106 N.W. 787 (1906).Court on own motion cannot transfer case for trial to another county. Lefferts v. Bell, 57 Neb. 248, 77 N.W. 680 (1898).This section does not authorize district court, on its own motion, to order a change of venue. Fisk v. Thorpe, 51 Neb. 1, 70 N.W. 498 (1897).Bias or prejudice of judge preventing fair and impartial trial is ground for change. Le Hane v. State, 48 Neb. 105, 66 N.W. 1017 (1896).When it appears that a fair and impartial trial cannot be had where suit is pending, change of venue should be granted. Omaha S. Ry. Co. v. Todd, 39 Neb. 818, 58 N.W. 289 (1894).3. Authority to transfer actionsA court which never acquires jurisdiction permitting it to act has no authority to transfer venue. Jackson v. Jensen, 225 Neb. 671, 407 N.W.2d 758 (1987).

25-411 Change of venue; procedure; effect; expenses.

25-411. Change of venue; procedure; effect; expenses.When an order is made transferring a cause for trial, as provided in section 25-410, the clerk of the court must transmit the pleadings and papers therein to the clerk of the court to which it is transferred; and in every such case, all expenses of such trial which would be chargeable to the county in which the suit originated had the cause been tried therein, as determined by the district judge of the county to which said cause has been transferred, shall be a charge upon the county in which the suit was commenced. The court to which an action is transferred shall have and exercise over the same the like jurisdiction as if it had been originally commenced therein. SourceG.S.1873, c. 57, § 3, p. 712; R.S.1913, § 7622; C.S.1922, § 8565; C.S.1929, § 20-411; Laws 1935, c. 43, § 1, p. 162; C.S.Supp.,1941, § 20-411; R.S.1943, § 25-411.

25-412 Change of venue in local actions involving real estate; transfer and entry of judgment.

25-412. Change of venue in local actions involving real estate; transfer and entry of judgment.When an action affecting the title or possession of real estate has been brought in or transferred to any court of a county, other than the county in which the real estate or some portion of it is situated, the clerk of such court must, after final judgment therein, certify such judgment under his seal of office, and transmit the same to the corresponding court of the county in which the real estate affected by the action is situated. The clerk receiving such copy must file, docket and record such judgment in the records of the court, briefly designating it as a judgment transferred from ......... court (naming the proper court). SourceG.S.1873, c. 57, § 4, p. 712; R.S.1913, § 7623; C.S.1922, § 8566; C.S.1929, § 20-412; R.S.1943, § 25-412.

25-412.01 Criminal cases; counties of 4,000 inhabitants or less; inadequate facilities; change of venue.

25-412.01. Criminal cases; counties of 4,000 inhabitants or less; inadequate facilities; change of venue.Any criminal case pending in either the county court or the district court in any county having a population of four thousand or less and not having adequate facilities for the trial of jury cases acceptable to the county and district judges may be tried in any adjoining county with the same effect as if tried in the county where the offense was committed. SourceLaws 1975, LB 97, § 1; R.S.1943, (1985), § 24-901.

25-412.02 Civil cases; counties of 4,000 inhabitants or less; inadequate facilities; change of venue.

25-412.02. Civil cases; counties of 4,000 inhabitants or less; inadequate facilities; change of venue.Any civil case pending in either the county court, the Nebraska Workers' Compensation Court, or the district court in any county having a population of four thousand or less and not having adequate facilities for the trial of jury or other contested cases may be tried in any adjoining county with the same effect as if tried in the county in which the case was filed or venued. SourceLaws 1975, LB 97, § 2; Laws 1986, LB 811, § 13; R.S.Supp.,1988, § 24-902.

25-412.03 County board; agreements for criminal and civil trials.

25-412.03. County board; agreements for criminal and civil trials.The county board of any county described in section 25-412.01 or 25-412.02 may enter into an agreement under the Interlocal Cooperation Act with the county board of another county or other counties for the trial of all contested criminal and civil cases, whether or not a jury trial has been requested. Any case subject to any such agreement shall be subject to the applicable provisions of law relating to changes of venue except as provided in section 25-412.04. SourceLaws 1975, LB 97, § 3; R.S.1943, (1985), § 24-903. Cross ReferencesInterlocal Cooperation Act, see section 13-801.

25-412.04 Criminal and civil trials; agreements for change of venue; jury; selection.

25-412.04. Criminal and civil trials; agreements for change of venue; jury; selection.The jury for any case to be tried pursuant to an agreement entered into under section 25-412.03 shall be selected from the county in which the case was first filed. The jury shall be elected in the manner prescribed in Chapter 25, article 16. The summons shall direct attendance before the court by which the case is to be tried and the return thereof shall be made to the same court. SourceLaws 1975, LB 97, § 4; R.S.1943, (1985), § 24-904.

25-413 State, defined.

25-413. State, defined.As used in sections 25-413 to 25-417, unless the context otherwise requires, state shall mean any foreign nation, and any state, district, commonwealth, territory or insular possession of the United States. SourceLaws 1969, c. 179, § 1, p. 769.

25-414 Choice of forum; jurisdiction; conditions.

25-414. Choice of forum; jurisdiction; conditions.(1) If the parties have agreed in writing that an action on a controversy may be brought in this state and the agreement provides the only basis for the exercise of jurisdiction, a court of this state will entertain the action if (a) the court has power under the law of this state to entertain the action; (b) this state is a reasonably convenient place for the trial of the action; (c) the agreement as to the place of the action was not obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means; and (d) the defendant, if within the state, was served as required by law of this state in the case of persons within the state or, if without the state, was served either personally or by certified mail directed to his last-known address.(2) This section does not apply to cognovit clauses, to arbitration clauses, or to the appointment of an agent for the service of process pursuant to statute or court order. SourceLaws 1969, c. 179, § 2, p. 769.AnnotationsThis section applies where the court would have no jurisdiction but for the fact that the parties have consented to its exercise by the choice of forum agreement. Ameritas Invest. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191 (2005).This section raises a jurisdictional barrier to the enforcement of a contractual choice of forum clause that does not meet the requirements of the Model Uniform Choice of Forum Act. Ameritas Invest. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191 (2005).This section was intended to prevent a court from exercising jurisdiction where that exercise would result in injustice or in substantial inconvenience to the parties. Ameritas Invest. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191 (2005).Although employee's contract specifically made Nebraska the exclusive venue for legal proceedings, employee did not breach venue clause of contract by bringing suit in another state, since Nebraska was not a reasonably convenient place for the action. Woodmen of the World Life Ins. Soc. v. Puccio, 1 Neb. App. 478, 499 N.W.2d 85 (1993).Subsection (1) of this section is an inherent part of every contract made in Nebraska. Woodmen of the World Life Ins. Soc. v. Puccio, 1 Neb. App. 478, 499 N.W.2d 85 (1993).

25-415 Choice of forum in another state; action pending in this state; procedure.

25-415. Choice of forum in another state; action pending in this state; procedure.If the parties have agreed in writing that an action on a controversy shall be brought only in another state and it is brought in a court of this state, the court will dismiss or stay the action, as appropriate, unless (1) the court is required by statute to entertain the action; (2) the plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; (3) the other state would be a substantially less convenient place for the trial of the action than this state; (4) the agreement as to the place of the action was obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means; or (5) it would for some other reason be unfair or unreasonable to enforce the agreement. SourceLaws 1969, c. 179, § 3, p. 769.AnnotationsA forum is seriously inconvenient only if one party would be effectively deprived of a meaningful day in court. Polk Cty. Rec. Assn. v. Susquehanna Patriot Leasing, 273 Neb. 1026, 734 N.W.2d 750 (2007).A forum selection clause can be avoided for fraud only when the fraud relates to procurement of the forum selection clause itself, standing independently from the remainder of the agreement. Polk Cty. Rec. Assn. v. Susquehanna Patriot Leasing, 273 Neb. 1026, 734 N.W.2d 750 (2007).A party seeking to avoid a contractual forum selection clause bears a heavy burden of showing that the clause should not be enforced, and, accordingly, the party seeking to avoid the forum selection clause bears the burden of proving that one of the statutory exceptions applies. Polk Cty. Rec. Assn. v. Susquehanna Patriot Leasing, 273 Neb. 1026, 734 N.W.2d 750 (2007).Aside from factual findings, a ruling on a motion to dismiss pursuant to this section is subject to de novo review. Where the trial court's decision is based upon the complaint and its own determination of disputed factual issues, an appellate court reviews the factual findings under the "clearly erroneous" standard. Polk Cty. Rec. Assn. v. Susquehanna Patriot Leasing, 273 Neb. 1026, 734 N.W.2d 750 (2007).In the absence of one of the five listed exceptions, this section requires dismissal of an action only when the forum selection clause is mandatory. If the forum selection clause is permissive rather than mandatory, this section does not require dismissal of the Nebraska action. Polk Cty. Rec. Assn. v. Susquehanna Patriot Leasing, 273 Neb. 1026, 734 N.W.2d 750 (2007).The proper procedure in Nebraska courts for a party to enforce a forum selection clause naming another state as a forum is to file a motion to dismiss pursuant to this section. Polk Cty. Rec. Assn. v. Susquehanna Patriot Leasing, 273 Neb. 1026, 734 N.W.2d 750 (2007).A forum selection clause which specifically references this section is not contrary to public policy and does not deny courts their inherent authority to consider appropriate matters presented to them. A trial court may refuse to dismiss an action where the facts are consistent with this section's limitations. Woodmen of the World Life Ins. Soc. v. Yelich, 250 Neb. 345, 549 N.W.2d 172 (1996).A forum selection clause in an insurance contract between a surety and a contractor is enacted in accordance with the statute, and therefor valid, enforceable, and not contrary to public policy. Haakinson & Beaty Co. v. Inland Ins. Co., 216 Neb. 426, 344 N.W.2d 454 (1984).

25-416 Sections, how construed.

25-416. Sections, how construed.Sections 25-413 to 25-417 shall be so construed as to effectuate their general purpose to make uniform the law of those states which enact them. SourceLaws 1969, c. 179, § 4, p. 770.

25-417 Act, how cited.

25-417. Act, how cited.Sections 25-413 to 25-417 may be cited as the Model Uniform Choice of Forum Act. SourceLaws 1969, c. 179, § 5, p. 770.

25-501 Actions; how commenced.

25-501. Actions; how commenced.A civil action must be commenced by filing a complaint in the office of the clerk of a proper court. SourceR.S.1867, Code § 62, p. 403; Laws 1869, § 2, p. 63; Laws 1871, § 1, p. 111; R.S.1913, § 7624; C.S.1922, § 8567; C.S.1929, § 20-501; R.S.1943, § 25-501; Laws 1971, LB 576, § 9; Laws 1979, LB 510, § 2; Laws 2002, LB 876, § 12. Cross ReferencesWhen action is deemed commenced, see section 25-217.Workers' Compensation Court, petition, filing, contents, see section 48-173. AnnotationsWhen disbarred attorney commenced action, dismissal was proper. Niklaus v. Abel Construction Co., 164 Neb. 842, 83 N.W.2d 904 (1957).A writ of replevin which is quashed or dismissed does not give the court jurisdiction to continue with the action. Tiedtke v. Whalen, 133 Neb. 301, 275 N.W. 79 (1937).It is not essential that action be denominated either in law or in equity; if facts pleaded constitute cause of action or defense, courts will award relief. Rhoads v. Columbia Fire Underwriters Agency, 128 Neb. 710, 260 N.W. 174 (1935).Cited in case involving amendment of summons on appeal from compensation award. Keil v. Farmers Irr. Dist., 119 Neb. 503, 229 N.W. 898 (1930).Action is deemed commenced as to defendant, at date of summons which is served upon him. Ramirez v. Chicago, B. & Q. R. R. Co., 116 Neb. 740, 219 N.W. 1 (1928).One not served with process in an action, who does not appear in person, or by attorney, is not bound by judgment rendered therein. Lipps v. Panko, 93 Neb. 469, 140 N.W. 761 (1913).New summons is unnecessary on amendment of petition if same causes of action are preserved. Schuyler Nat. Bank v. Bollong, 28 Neb. 684, 45 N.W. 164 (1890).

25-502 Repealed. Laws 1983, LB 447, § 104.

25-502. Repealed. Laws 1983, LB 447, § 104.

25-502.01 Praecipe for summons.

25-502.01. Praecipe for summons.The plaintiff shall file with the clerk of the court a praecipe for summons stating the name and address of each party to be served and the manner of service for each party. Upon written request of the plaintiff, separate or additional summonses shall be issued. SourceLaws 1983, LB 447, § 19; Laws 1984, LB 845, § 20.

25-503 Repealed. Laws 1983, LB 447, § 104.

25-503. Repealed. Laws 1983, LB 447, § 104.

25-503.01 Summons.

25-503.01. Summons.(1) The summons shall be directed to the defendant or defendants, and contain the names of the parties and the name and address of the plaintiff's attorney, if any, otherwise the address of the plaintiff. It shall notify defendant that in order to defend the lawsuit an appropriate written response shall be filed with the court within thirty days after service, and that upon failure to do so the court may enter judgment for the relief demanded in the complaint.(2) A judgment by default shall not be different in kind from that demanded in the complaint. If only special damages are demanded a judgment by default shall not exceed the amount demanded in the complaint. SourceLaws 1983, LB 447, § 20; Laws 2002, LB 876, § 13. Cross ReferencesWorkers' compensation cases, court issues summons, see sections 48-174 and 48-190.

25-504 Repealed. Laws 1983, LB 447, § 104.

25-504. Repealed. Laws 1983, LB 447, § 104.

25-504.01 Summons and complaint; service.

25-504.01. Summons and complaint; service.A copy of the complaint shall be served with the summons, except when service is by publication. The plaintiff shall deliver to the clerk sufficient copies of the complaint at the time it is filed. SourceLaws 1983, LB 447, § 21; Laws 2002, LB 876, § 14.

25-505 Repealed. Laws 1983, LB 447, § 104.

25-505. Repealed. Laws 1983, LB 447, § 104.

25-505.01 Service of summons; methods.

25-505.01. Service ofsummons; methods.(1) Unless otherwise limitedby statute or by the court, a plaintiff may elect to have service made byany of the following methods:(a) Personal service which shall be made by leaving the summonswith the individual to be served;(b) Residence service which shall be made by leaving the summonsat the usual place of residence of the individual to be served, with someperson of suitable age and discretion residing therein;(c) Certified mail service which shall be made by (i) withinten days of issuance, sending the summons to the defendant by certified mailwith a return receipt requested showing to whom and where delivered and thedate of delivery, and (ii) filing with the court proof of service with thesigned receipt attached; or(d) By depositingwith a designated delivery service authorized pursuant to 26 U.S.C. 7502(f)(2)a copy of the summons and complaint, addressed to the party to be served,delivering to the addressee, and obtaining a delivery receipt. As used inthis subdivision, delivery receipt includes an electronic or facsimile receipt.(2) Failure to make service by the method elected by the plaintiffdoes not affect the validity of the service. SourceLaws 1983, LB 447, § 22; Laws 1984, LB 845, § 21; Laws 2009, LB35, § 6. Cross ReferencesWorkers' compensation cases, manner of service, see sections 48-174, 48-175, 48-175.01, and 48-190. AnnotationsPlaintiff may elect to have service made by any of the methods specified in the statute. West Town Homeowners Assn. v. Schneider, 221 Neb. 674, 380 N.W.2d 265 (1986).Personal service at work rather than at home, despite the designation on the praecipe of where service should be effected, is nonetheless valid service. Hatcher v. McShane, 12 Neb. App. 239, 670 N.W.2d 638 (2003).

25-506 Repealed. Laws 1983, LB 447, § 104.

25-506. Repealed. Laws 1983, LB 447, § 104.

25-506.01 Process; by whom served.

25-506.01. Process; bywhom served.(1) Unless the plaintiff has elected certified mail service, the summons shall be servedby the sheriff of the county where service is made, by a person authorizedby section 25-507 or otherwise authorized by law, or by a person, corporation,partnership, or limited liability company not a party to the action speciallyappointed by the court for that purpose.(2) Certifiedmail service shall be made by plaintiff or plaintiff's attorney. SourceLaws 1983, LB 447, § 23; Laws 1994, LB 1224, § 36; Laws 1999, LB 319, § 1; Laws 2009, LB35, § 7. Cross ReferencesWorkers' compensation cases, manner of service, see sections 48-174, 48-175, 48-175.01, and 48-190.

25-507 Process server; requirements; bond; cost.

25-507. Process server; requirements; bond; cost.(1) In any county which does not have a person contracted as a constable pursuant to section 25-2229, any person twenty-one years of age or older or a corporation, partnership, or limited liability company that satisfies the requirements of subsection (2) of this section shall have the same power as a sheriff to execute any service of process or order.(2) Any person or entity may exercise the powers provided in subsection (1) of this section if such person or entity (a) is not a party to the action, (b) is not related to a party to the action, (c) does not have an interest in the action, (d) is not a public official employed by the county where service is made whose duties include service of process, and (e) furnishes a good and sufficient corporate surety bond in the sum of fifteen thousand dollars, such bond being conditioned upon such person or entity faithfully and truly performing the duties of process server.(3) Evidence of the corporate surety bond shall be provided to the clerk of each court in which such person or entity executes service of process or orders. Such person or entity is not required to furnish more than one bond to execute service of process or orders in any state court in the State of Nebraska. When service of process is made by such person or entity authorized by this section, proof of such service of process shall be shown by an affidavit.(4) The cost of service of process is taxable as a court cost, and when service of process is made by such person or entity other than a sheriff the cost taxable as a court cost is the lesser of the actual amount incurred for service of process or orders or the statutory fee set for sheriffs in section 33-117. SourceLaws 1999, LB 319, § 2.

25-507.01 Summons; proof of service; return date.

25-507.01. Summons; proofof service; return date.(1) Within twenty daysafter the date of issue, the person serving the summons, other than by certifiedmail service, shallmake proof of service to the court stating the time, place, including theaddress if applicable, name of the person with whom the summons was left,and method of service, or return the unserved summons to the court with astatement of the reason for the failure to serve.(2) When service is by certified mail service, the plaintiff or plaintiff's attorneyshall file proof of service within ten days after return of the signed receipt.(3) Failure to make proof of service or delay in doing sodoes not affect the validity of the service. SourceLaws 1983, LB 447, § 24; Laws 2009, LB35, § 8. Cross ReferencesWorkers' compensation cases, manner and time of service, see sections 48-174, 48-175, 48-175.01, and 48-190.

25-508 Repealed. Laws 1983, LB 447, § 104.

25-508. Repealed. Laws 1983, LB 447, § 104.

25-508.01 Service on individual.

25-508.01. Service on individual.(1) An individual party, other than a person under the age of fourteen years, may be served by personal, residence, or certified mail service.(2) A party under the age of fourteen years may be served by personal, residence, or certified mail service upon an adult person with whom the minor resides and who is the minor's parent, guardian, or person having care of the minor. If none of these can be found, a party under the age of fourteen years may be served by personal service.(3) If the person to be served is an incapacitated person for whom a conservator or guardian has been appointed or is confined in any institution, notice of the service shall be given to the conservator, guardian, or superintendent or similar official of the institution. Failure to give such notice does not affect the validity of the service on the incapacitated person. SourceLaws 1983, LB 447, § 25. AnnotationsAlthough subsection (3) of this section requires that where summons is served on an incapacitated person, notice of such service shall be given to the guardian, it also provides that failure to give such notice will not affect the validity of the service. In re Interest of A.M.K., 227 Neb. 888, 420 N.W.2d 718 (1988).

25-509 Repealed. Laws 1983, LB 447, § 104.

25-509. Repealed. Laws 1983, LB 447, § 104.

25-509.01 Service on corporation.

25-509.01. Service on corporation.A corporation may be served by personal, residence, or certified mail service upon any officer, director, managing agent, or registered agent, or by leaving the process at the corporation's registered office with a person employed therein, or by certified mail service to the corporation's registered office. SourceLaws 1983, LB 447, § 26. Cross ReferencesFor process and service on foreign insurance corporation, see sections 44-135, 44-2009 to 44-2013, and 44-5507.Registered office of corporation, see sections 21-1934, 21-19,152, 21-2031, and 21-20,174.

25-510 Repealed. Laws 1983, LB 447, § 104.

25-510. Repealed. Laws 1983, LB 447, § 104.

25-510.01 Repealed. Laws 1983, LB 447, § 104.

25-510.01. Repealed. Laws 1983, LB 447, § 104.

25-510.02 Service on state or political subdivision.

25-510.02. Service on state or political subdivision.(1) The State of Nebraska, any state agency as defined in section 81-8,210, and any employee of the state as defined in section 81-8,210 sued in an official capacity may be served by leaving the summons at the office of the Attorney General with the Attorney General, deputy attorney general, or someone designated in writing by the Attorney General, or by certified mail service addressed to the office of the Attorney General.(2) Any county, city, or village of this state may be served by personal, residence, or certified mail service upon the chief executive officer, or clerk.(3) Any political subdivision of this state, as defined in subdivision (1) of section 13-903, other than a county, city, or village, may be served by personal, residence, or certified mail service upon the chief executive officer, clerk, secretary, or other official whose duty it is to maintain the official records, or any member of the governing board or body, or by certified mail service to the principal office of the political subdivision. SourceLaws 1983, LB 447, § 27.AnnotationsWhen this section applies, a summons must be served on the Attorney General in order to institute judicial review under the Administrative Procedure Act, sections 84-901 through 84-920. Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997).This section provides the acceptable methods of service of summons upon the Attorney General, but although some discretion is granted as to the mode of service, no discretion is granted as to the entity to be served. Nebraska Methodist Health Sys. v. Dept. of Health, 249 Neb. 405, 543 N.W.2d 466 (1996).When this section applies, in order to institute judicial review under the Administrative Procedure Act, service must be had on the Attorney General. Becker v. Nebraska Acct. & Disclosure Comm., 249 Neb. 28, 541 N.W.2d 36 (1995).In cases in which this section applies, a summons must be served on the Attorney General in order to institute judicial review under the Administrative Procedure Act. Glass v. Nebraska Dept. of Motor Vehicles, 248 Neb. 501, 536 N.W.2d 344 (1995).Pursuant to subsection (1), when a party commences an action against the State, that party's service must be served in one of the four following ways to be effective: (1) By leaving summons at the Attorney General's office with the Attorney General, (2) by leaving summons at the Attorney General's office with a deputy attorney general, (3) by leaving summons at the Attorney General's office with someone designated in writing by the Attorney General to receive summons, or (4) by sending summons by certified mail addressed to the Attorney General's office. Twiss v. Trautwein, 247 Neb. 535, 529 N.W.2d 24 (1995).Pursuant to this section, the Attorney General must be served on behalf of the committee and that service may be accomplished by one of the methods for which provision is made in subsection (1). Ray v. Nebraska Crime Victim's Reparations Comm., 1 Neb. App. 130, 487 N.W.2d 590 (1992).

25-511 Repealed. Laws 1983, LB 447, § 104.

25-511. Repealed. Laws 1983, LB 447, § 104.

25-511.01 Repealed. Laws 1983, LB 447, § 104.

25-511.01. Repealed. Laws 1983, LB 447, § 104.

25-511.02 Service on dissolved corporation.

25-511.02. Service on dissolved corporation.A dissolved corporation may be served by personal, residence, or certified mail service upon any appointed receiver. If there is no receiver, a dissolved corporation may be served by personal, residence, or certified mail service upon any person who at the time of dissolution was an officer, director, managing agent, or registered agent, or upon any officer or director designated in the last annual report filed with the Secretary of State. SourceLaws 1983, LB 447, § 28.

25-512 Repealed. Laws 1983, LB 447, § 104.

25-512. Repealed. Laws 1983, LB 447, § 104.

25-512.01 Service on partnership.

25-512.01. Service on partnership.A partnership or limited partnership may be served by personal, residence, or certified mail service upon any partner except a limited partner, or by certified mail service at its usual place of business, or the process may be left at its usual place of business with an employee of the partnership or limited partnership. SourceLaws 1983, LB 447, § 29. Cross ReferencesRegistration and agent for service of process of foreign limited partnerships, see section 67-281.

25-513 Repealed. Laws 1983, LB 447, § 104.

25-513. Repealed. Laws 1983, LB 447, § 104.

25-513.01 Service on unincorporated association.

25-513.01. Service on unincorporated association.An unincorporated association may be served by personal, residence, or certified mail service upon an officer or managing agent, or by certified mail service to the association at its usual place of business, or by leaving the process at its usual place of business with an employee of the unincorporated association. SourceLaws 1983, LB 447, § 30.

25-514 Repealed. Laws 1983, LB 447, § 104.

25-514. Repealed. Laws 1983, LB 447, § 104.

25-514.01 Service on agent.

25-514.01. Service on agent.Any party may be served by personal, residence, or certified mail service upon an agent authorized by appointment or by law to receive service of process. SourceLaws 1983, LB 447, § 31.

25-515 Repealed. Laws 1983, LB 447, § 104.

25-515. Repealed. Laws 1983, LB 447, § 104.

25-516 Repealed. Laws 1983, LB 447, § 104.

25-516. Repealed. Laws 1983, LB 447, § 104.

25-516.01 Service; voluntary appearance; defenses.

25-516.01. Service; voluntary appearance; defenses.(1) The voluntary appearance of the party is equivalent to service.(2) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process may be asserted only under the procedure provided in the pleading rules adopted by the Supreme Court. If any of those defenses are asserted either by motion or in a responsive pleading and the court overrules the defense, an objection that the court erred in its ruling will be waived and not preserved for appellate review if the party asserting the defense either (a) thereafter files a demand for affirmative relief by way of counterclaim, cross-claim, or third-party claim or (b) fails to dismiss a demand for such affirmative relief that was previously filed. If any of those defenses are asserted either by motion or in a responsive pleading and the court overrules the defense, an objection that the court erred in its ruling on any issue, except the objection that the party is not amenable to process issued by a court of this state, will be waived and not preserved for appellate review if the party asserting the defense thereafter participates in proceedings on any issue other than those defenses. SourceLaws 1983, LB 447, § 32; Laws 2002, LB 876, § 15. AnnotationsA voluntary appearance of a party is equivalent to service and, in effect, is another mode of service. Nebraska Methodist Health Sys. v. Dept. of Health, 249 Neb. 405, 543 N.W.2d 466 (1996).An action stood dismissed by operation of law upon the passing of 6 months after the filing of the petition, where the defendants were not served process and their voluntary appearances were entered more than 6 months after the date the petition was filed. Vopalka v. Abraham, 9 Neb. App. 285, 610 N.W.2d 433 (2000).

25-517 Repealed. Laws 1983, LB 447, § 104.

25-517. Repealed. Laws 1983, LB 447, § 104.

25-517.01 Repealed. Laws 1983, LB 447, § 104.

25-517.01. Repealed. Laws 1983, LB 447, § 104.

25-517.02 Substitute and constructive service.

25-517.02. Substitute and constructive service.Upon motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute, the court may permit service to be made (1) by leaving the process at the defendant's usual place of residence and mailing a copy by first-class mail to the defendant's last-known address, (2) by publication, or (3) by any manner reasonably calculated under the circumstances to provide the party with actual notice of the proceedings and an opportunity to be heard. SourceLaws 1983, LB 447, § 33. Cross ReferencesActions against unknown defendants, see section 25-321.Actions to quiet title, see section 25-21,112 et seq. AnnotationsSubstituted service based upon a false and misleading affidavit may be nullified. Where a parent was not given proper statutory notification of an adoption proceeding, the county court lacked jurisdiction to grant the adoption decree and the adoption was set aside. In re Adoption of Leslie P., 8 Neb. App. 954, 604 N.W.2d 853 (2000).

25-518 Repealed. Laws 1983, LB 447, § 104.

25-518. Repealed. Laws 1983, LB 447, § 104.

25-518.01 Service by publication.

25-518.01. Service by publication.Service may be made by publication (1) when such service is elsewhere provided for by statute or (2) when ordered by the court. SourceLaws 1983, LB 447, § 34.

25-519 Service by publication; how made; contents.

25-519. Service by publication; how made; contents.The publication shall be made once in each week for three successive weeks in some newspaper printed in the county where the complaint is filed if there is any printed in such county and, if there is not, in some newspaper printed in this state of general circulation in that county. It shall contain a summary statement of the claim for relief of the complaint, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer. SourceR.S.1867, Code § 79, p. 405; R.S.1913, § 7642; C.S.1922, § 8585; C.S.1929, § 20-519; R.S.1943, § 25-519; Laws 1971, LB 47, § 1; Laws 1996, LB 299, § 19; Laws 2002, LB 876, § 16. Cross ReferencesFor publication of legal notices, see sections 25-2227, 25-2228, 33-141, and 33-142. Annotations1. How made2. Contents3. Miscellaneous1. How madeIn the case of substitute service by publication under this section, service is not "made" until the third publication, and prior to the third publication, a defendant is "not served" under section 25-217. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (2004).Where service by publication has been approved, a defendant is not served within 6 months from the date the petition was filed under section 25-217 unless the third publication under this section has occurred within 6 months from the date the petition was filed. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (2004).Publication seven times in semi-weekly newspaper was not sufficient in foreclosure of tax lien. Davis v. American Inv. & Trust Co., 94 Neb. 427, 143 N.W. 464 (1913).Publications need not be on same day of week; "week" defined. Burr v. Finch, 91 Neb. 417, 136 N.W. 72 (1912).Notice must be published in all regular issues during week. Smith v. Potter, 90 Neb. 298, 133 N.W. 437 (1911); Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).Notice takes place of summons; publication requiring defendant to answer on second Monday is irregular and may be set aside on motion. Calkins v. Miller, 55 Neb. 601, 75 N.W. 1108 (1898).Four weekly publications are sufficient. Taylor v. Coots, 32 Neb. 30, 48 N.W. 964 (1891); Fouts v. Mann, 15 Neb. 172, 18 N.W. 64 (1883).Notice requiring defendant to answer in forenoon is valid; but has whole day to answer. Armstrong v. Middlestadt, 22 Neb. 711, 36 N.W. 151 (1888).Notice once each week for four successive weeks is completed upon distribution of last publication. Davis v. Huston, 15 Neb. 28, 16 N.W. 820 (1883).2. ContentsPublication notice must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons to be served when they are required to answer. Coffin v. Maitland, 146 Neb. 477, 20 N.W.2d 310 (1945).Plaintiff's cause of action is not required to be set out in notice. Smith v. Potter, 92 Neb. 39, 137 N.W. 854 (1912).Notice stating that action was for "partition" of lands was sufficient without reciting "partition or sale." McCormick v. Paddock, 20 Neb. 486, 30 N.W. 602 (1886).Notice in attachment containing general description of property attached is not void. Grebe v. Jones, 15 Neb. 312, 18 N.W. 81 (1883).3. MiscellaneousNotice to nonresident herein complied with this section. Armstrong v. Bates, 94 Neb. 462, 143 N.W. 477 (1913).

25-520 Service by publication; when complete; how proved; affidavit of publication.

25-520. Service by publication; when complete; how proved; affidavit of publication.Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in section 25-519; and such service shall be proved by the affidavit of the printer or his foreman or principal clerk, or other person knowing the same. SourceR.S.1867, Code § 80, p. 406; R.S.1913, § 7643; C.S.1922, § 8586; C.S.1929, § 20-520; R.S.1943, § 25-520.AnnotationsIn tax foreclosure case, section is strictly construed. Armstrong v. Griffith, 94 Neb. 515, 143 N.W. 461 (1913).Service is complete upon distribution of paper containing its fourth successive weekly insertion. Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).Any one having actual knowledge of facts may make affidavit. Taylor v. Coots, 32 Neb. 30, 48 N.W. 964 (1891).Court may permit amendment of affidavit to conform to facts. Britton v. Larson, 23 Neb. 806, 37 N.W. 681 (1888).

25-520.01 Service by publication; mailing of published notice; requirements; waiver; when mailing not required.

25-520.01. Service by publication; mailing of published notice; requirements; waiver; when mailing not required.In any action or proceeding of any kind or nature, as defined in section 25-520.02, where a notice by publication is given as authorized by law, a party instituting or maintaining the action or proceeding with respect to notice or his attorney shall within five days after the first publication of notice send by United States mail a copy of such published notice to each and every party appearing to have a direct legal interest in such action or proceeding whose name and post office address are known to him. Proof by affidavit of the mailing of such notice shall be made by the party or his attorney and shall be filed with the officer with whom filings are required to be made in such action or proceeding within ten days after mailing of such notice. Such affidavit of mailing of notice shall further be required to state that such party and his attorney, after diligent investigation and inquiry, were unable to ascertain and do not know the post office address of any other party appearing to have a direct legal interest in such action or proceeding other than those to whom notice has been mailed in writing. It shall not be necessary to serve the notice prescribed by this section upon any competent person, fiduciary, partnership, or corporation, who has waived notice in writing, entered a voluntary appearance, or has been personally served with summons or notice in such proceeding. SourceLaws 1957, c. 80, § 1, p. 325; Laws 1959, c. 97, § 1, p. 416.Annotations1. Notice not required2. Miscellaneous1. Notice not requiredFirst cousins of testator were not prima facie heirs-at-law, and hence were not required to be notified by mail of pending probate of will. Estate of Colman v. Redford, 179 Neb. 270, 137 N.W.2d 822 (1965).Notice by mail is not required to be given to the holder of a claim for unliquidated damages. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).Notice by mail was not required to be given to property owner of intention by municipality to pass resolution of necessity for constructing sewer system. Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).Notice was not required to be sent to all owners of land within school district of proceedings to change boundaries thereof. Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102 N.W.2d 599 (1960).A decedent's potential liability for an automobile accident, without establishment of liability and amount of damages, does not constitute a direct legal interest in the estate such that notice by mail must be sent to the potential creditor. Mach v. Schmer, 4 Neb. App. 819, 550 N.W.2d 385 (1996).2. MiscellaneousThe requirements of this section apply to a publication of notice given under section 25-1529 governing sales on execution. KLH Retirement Planning v. Okwumuo, 263 Neb. 760, 642 N.W.2d 801 (2002).County court which obtained jurisdiction of res of estate upon filing of petition retains jurisdiction until service of notice is perfected or until matter is abandoned. Fischer v. Lingle, 195 Neb. 108, 237 N.W.2d 110 (1975).A mortgagor in a foreclosure proceeding is not entitled to personal service of the published notice of sale. Hollstein v. Adams, 187 Neb. 781, 194 N.W.2d 216 (1972).Copy of notice, mailed hereunder, that a will and codicil are being offered for probate is sufficient to put party upon inquiry as to documents offered. Flint v. Panter, 187 Neb. 615, 193 N.W.2d 279 (1970).This section does not apply to notice of dissolution of corporation. Christensen v. Boss, 179 Neb. 429, 138 N.W.2d 716 (1965).

25-520.02 Action or proceeding, defined.

25-520.02. Action or proceeding, defined.The term action or proceeding means all actions and proceedings in any court and any action or proceeding before the governing bodies of municipal corporations, public corporations, and political subdivisions for the equalization of special assessments or assessing the cost of any public improvement. SourceLaws 1957, c. 80, § 2, p. 326. AnnotationsThe act, of which this section is a part, is not amendatory, but is new and independent legislation. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).Resolution of necessity for constructing a sewer system was not within purview of this section. Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).Statute does not contemplate personal notice must be given to a class on matters of general public concern. Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102 N.W.2d 599 (1960).

25-520.03 Sections, how construed.

25-520.03. Sections, how construed.Sections 25-520.01 to 25-520.03 are intended by the Legislature to be cumulative and supplemental to existing legislation. They are deemed to be a matter of general statewide concern. Such sections apply to all parties authorized by law to give notice by publication, including the State of Nebraska, its governmental subdivisions, and all public and municipal corporations. SourceLaws 1957, c. 80, § 3, p. 326. AnnotationsThe act, of which this section is a part, is not amendatory, but is new and independent legislation. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).

25-520.04 Repealed. Laws 1986, LB 735, § 1.

25-520.04. Repealed. Laws 1986, LB 735, § 1.

25-521 Repealed. Laws 1983, LB 447, § 104.

25-521. Repealed. Laws 1983, LB 447, § 104.

25-522 Service by publication; designation of newspaper.

25-522. Service by publication; designation of newspaper.It shall be the lawful right of any plaintiff or petitioner in any suit, action or proceeding, pending or prosecuted in any of the courts of this state, in which it is necessary to publish in a newspaper any notice or copy of an order, growing out of, or connected with, such action or proceeding, either by himself or his attorney of record, to designate in what newspaper such notice or copy of order shall be published; and it shall be the duty of the judges of the district court, county judges, or any other officer charged with the duty of ordering, directing or superintending the publication of any of such notices, or copies of orders, to strictly comply with such designations when made in accordance with the provisions of this section. SourceLaws 1909, c. 94, § 1, p. 399; R.S.1913, § 7645; C.S.1922, § 8588; C.S.1929, § 20-522; R.S.1943, § 25-522.

25-523 Legal newspaper, defined; prior publications legalized.

25-523. Legal newspaper, defined; prior publications legalized.No newspaper shall be considered a legal newspaper for the publication of legal and other official notices unless the same shall have a bona fide circulation of at least three hundred paid subscriptions weekly, and shall have been published within the county for fifty-two successive weeks prior to the publication of such notice, and be printed, either in whole or in part, in an office maintained at the place of publication; Provided, that nothing in this section shall invalidate the publication in a newspaper which has suspended publication or been printed outside of the county, on account of fire, flood or other unavoidable accident, for not to exceed ten weeks, in the year last preceding the first publication of a legal notice, advertising or publication; provided further, that all publications made prior to May 22, 1941, in a newspaper which has, on account of flood, fire or other unavoidable accident, suspended publication or been printed in an office outside of the county, are hereby legalized; provided further, that all newspapers, otherwise complying herewith, which have, on account of flood, fire or other unavoidable accident, suspended publication or been printed in an office outside of the county, for not to exceed ten weeks in any year, are hereby legalized; and provided further, that the publication of legal or other official notices in the English language in foreign language newspapers published within the county for fifty-two successive weeks prior to the publication of such a notice, and printed either in whole or in part in an office maintained at the place of publication, shall also be legal. SourceLaws 1915, c. 221, § 1, p. 490; Laws 1919, c. 133, § 1, p. 309; C.S.1922, § 8589; C.S.1929, § 20-523; Laws 1935, c. 40, § 1, p. 157; Laws 1941, c. 31, § 1, p. 139; C.S.Supp.,1941, § 20-523; Laws 1943, c. 44, § 1(1), p. 189; R.S.1943, § 25-523; Laws 1972, LB 661, § 17. AnnotationsMechanical act of printing legal newspaper may be performed outside county of place of publication. Wymore Arbor State, Inc. v. Korinek, 182 Neb. 557, 156 N.W.2d 24 (1968).Particular requirements of this section need not be recited in printer's proof of publication. Seymour v. Lawson, 111 Neb. 770, 197 N.W. 623 (1926).

25-524 Repealed. Laws 1983, LB 447, § 104.

25-524. Repealed. Laws 1983, LB 447, § 104.

25-525 Judgment on constructive service; how opened; procedure.

25-525. Judgment on constructive service; how opened; procedure.A party against whom a judgment or order has been rendered without other service than by publication in a newspaper may, at any time within five years after the date of entry of the judgment or order, have the same opened to allow the applicant to appear in court and make a defense. Before the judgment or order is opened, the applicant shall give notice to the adverse party of the intention to make such application and shall file a full answer to the petition or complaint, pay all costs, if the court requires them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action the applicant had no actual notice thereof in time to appear in court and make a defense. The title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, has passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall the proceedings affect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judgment or order, as provided by this section, shall be allowed to present counter-affidavits, to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make a defense. SourceR.S.1867, Code § 82, p. 406; R.S.1913, § 7646; C.S.1922, § 8590; C.S.1929, § 20-525; R.S.1943, § 25-525; Laws 2000, LB 921, § 3; Laws 2002, LB 876, § 17.Annotations1. Sufficiency of application2. Notice to plaintiff3. Title to conveyed property4. Miscellaneous1. Sufficiency of applicationBefore party can have judgment opened, it must appear that he had no actual notice of the pendency of the action in time to make defense. McNally v. McNally, 152 Neb. 845, 43 N.W.2d 170 (1950).Verified petition filed by parties seeking to open up judgment under this section was equivalent to affidavit and answer required thereunder. Nelson v. Nelson, 113 Neb. 453, 203 N.W. 640 (1925).Application was sufficient to authorize vacation of judgment. Eno v. Lampshire, 108 Neb. 265, 187 N.W. 782 (1922).Ordinarily only party can make affidavit, but may be made by attorney where party is nonresident. Cass v. Nitsch, 81 Neb. 228, 115 N.W. 753 (1908).On application, defendant cannot contest sufficiency of original petition; "full answer" means meritorious answer. Oakes v. Ziemer, 62 Neb. 603, 87 N.W. 350 (1901).To permit a defendant to open up decree, full answer to the merits must be presented. Oakes v. Ziemer, 61 Neb. 6, 84 N.W. 409 (1900).Defendant must show he did not have actual notice of suit in time to make defense; adverse party may present counteraffidavits. Stover v. Hough, 47 Neb. 789, 66 N.W. 825 (1896).Party seeking to have judgment opened up must allege and prove bona fides. McGregor v. Eastern B. & L. Assn., 5 Neb. Unof. 563, 99 N.W. 509 (1904).Motion to vacate judgment after term must tender valid defense which court will adjudge prima facie valid. Waters v. Raker, 1 Neb. Unof. 830, 96 N.W. 78 (1901).2. Notice to plaintiffAppearance by party to resist motion to vacate waives notice. Scarborough v. Myrick, 47 Neb. 794, 66 N.W. 867 (1896).Proceeding is continuation of original action; service of notice on plaintiff's attorney is sufficient. Merriam v. Gordon, 17 Neb. 325, 22 N.W. 563 (1885).3. Title to conveyed propertyGood faith purchaser of land at judicial sale is protected in event judgment reversed under this section. Pauley v. Knouse, 109 Neb. 716, 192 N.W. 195 (1923); Warren v. Dick, 17 Neb. 241, 22 N.W. 462 (1885).Title of purchaser cannot be litigated in action, except perhaps where bad faith is charged. Security Abstract of Title Co. v. Longacre, 56 Neb. 469, 76 N.W. 1073 (1898).A purchaser of land under a judgment subsequently opened is not a purchaser pendente lite. Scudder v. Sargent, 15 Neb. 102, 17 N.W. 369 (1883).4. MiscellaneousOne seeking to open up a judgment secured by constructive service must act within five years and must, by a preponderance of the evidence, show that he had no notice prior to judgment and he must file a meritorious answer. Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977).This section has no relation to filing of claims against estate. Supp v. Allard, 162 Neb. 563, 76 N.W.2d 459 (1956).This section has no reference to a void judgment. Hassett v. Durbin, 132 Neb. 315, 271 N.W. 867 (1937).Action to redeem from tax foreclosure was commenced in time hereunder. Walter v. Union R. E. Co., 107 Neb. 144, 185 N.W. 323 (1921).Section is not applicable to proceedings before drainage district board. Richardson County ex rel. Sheehan v. Drainage Dist., 96 Neb. 169, 147 N.W. 205 (1914).Relief may be granted after five years if proper petitions are presented before expiration of time. Affidavits are amendable. Rine v. Rine, 91 Neb. 248, 135 N.W. 1051 (1912).Section does not relate to void judgments. Herman v. Barth, 85 Neb. 722, 124 N.W. 135 (1910); Hayes County v. Wileman, 82 Neb. 669, 118 N.W. 478 (1908).Owner of land sold under scavenger tax law is not entitled to benefits of this section as matter of right. State v. Several Parcels of Land, 75 Neb. 538, 106 N.W. 663 (1906).Defendant who conveyed his interest by quitclaim deed cannot move to vacate judgment. Browne v. Palmer, 66 Neb. 287, 92 N.W. 315 (1902).Acknowledgment on summons is actual personal service; judgment cannot be opened. Cheney v. Harding, 21 Neb. 65, 31 N.W. 255 (1887).Affidavit by an attorney who has personal knowledge of the want of "actual notice" will be sufficient to open the judgment in absence of counteraffidavits. In re Reed v. Estate of Thompson, 19 Neb. 397, 27 N.W. 391 (1886).Opening judgment upon complying with the requirements of the statute is a matter of right. Brown v. Conger, 10 Neb. 236, 4 N.W. 1009 (1880).

25-526 Repealed. Laws 1983, LB 447, § 104.

25-526. Repealed. Laws 1983, LB 447, § 104.

25-527 Procedure when defendants not all served.

25-527. Procedure when defendants not all served.Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows: (1) If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct; (2) if the action be against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants. SourceR.S.1867, Code § 84, p. 407; R.S.1913, § 7648; C.S.1922, § 8592; C.S.1929, § 20-527; R.S.1943, § 25-527.AnnotationsAction being for joint and several liability, it could proceed as to the defendants served, under this section. Bourne v. Baer, 107 Neb. 255, 185 N.W. 408 (1921).Section is applicable to proceedings to revive joint judgment. Thornhill v. Hargreaves, 76 Neb. 582, 107 N.W. 847 (1906); Clark v. Commercial Nat. Bank of Columbus, 68 Neb. 764, 94 N.W. 958 (1903).Where principal on injunction bond could not be found in county, it was proper to proceed against surety alone. Gyger v. Courtney, 59 Neb. 555, 81 N.W. 437 (1900).Obligors on joint bond must be joined; may proceed against those served. Perkins County v. Miller, 55 Neb. 141, 75 N.W. 577 (1898); Young v. Joseph Bros. & Davidson, 5 Neb. Unof. 559, 99 N.W. 522 (1904).

25-528 Personal service upon appointed resident agent; appointment invalidates constructive service, when.

25-528. Personal service upon appointed resident agent; appointment invalidates constructive service, when.It shall be lawful for any person, association or corporation, owning or claiming any interest in or lien upon any real estate lying within this state, to make and file in the office of the register of deeds of the county in which such real estate is situated an appointment, in writing, of some person, who shall be a resident of the county in which said lands lie, upon whom process may be served in any suit, action or proceeding, concerning or affecting such real estate, to which such owner or claimant shall be made a party. Such appointment shall be acknowledged in the manner provided by law for the acknowledgment of deeds, and shall specifically describe the lands affected by such appointment. From and after the filing of such appointment as herein provided, service of any writ, summons, order or notice, in any suit, action or proceeding, concerning or affecting such real estate, shall be made upon the person so appointed and designated in such manner as may be provided by law for the service of process upon persons found in this state, and shall be held and taken to be a valid and effectual service upon such owner or claimant. A copy of such appointment, or of the record thereof, duly certified by the said register of deeds, shall be deemed sufficient evidence thereof. No service made by publication shall be valid in respect to any such owner or claimant, who shall have filed an appointment under the provisions of this article; Provided, such appointment may be at any time revoked by such owner or claimant, but such revocation shall be in writing duly acknowledged, and shall specifically describe the lands affected by such appointment, and filed and recorded in the office of the register of deeds of the county in which any such real property is situated. SourceLaws 1877, § 1, p. 17; R.S.1913, § 7649; C.S.1922, § 8593; Laws 1927, c. 65, § 1, p. 227; C.S.1929, § 20-528; R.S.1943, § 25-528.

25-529 Personal service upon appointed resident agent; appointment; recording and indexing; fees.

25-529. Personal service upon appointed resident agent; appointment; recording and indexing; fees.The register of deeds of each county shall record such appointment as shall be filed under the provisions of section 25-528 and any revocation thereof in the Miscellaneous Record, shall enter such instruments in the numerical index against the lands described therein, and shall be entitled to demand and receive fees as provided in sections 33-109 and 33-112. SourceLaws 1877, § 2, p. 18; R.S.1913, § 7650; C.S.1922, § 8594; Laws 1927, c. 65, § 2, p. 228; C.S.1929, § 20-529; R.S.1943, § 20-529; Laws 1984, LB 679, § 11.

25-530 Repealed. Laws 1983, LB 447, § 104.

25-530. Repealed. Laws 1983, LB 447, § 104.

25-530.01 Repealed. Laws 1983, LB 447, § 104.

25-530.01. Repealed. Laws 1983, LB 447, § 104.

25-530.02 Repealed. Laws 1983, LB 447, § 104.

25-530.02. Repealed. Laws 1983, LB 447, § 104.

25-530.03 Repealed. Laws 1983, LB 447, § 104.

25-530.03. Repealed. Laws 1983, LB 447, § 104.

25-530.04 Repealed. Laws 1983, LB 447, § 104.

25-530.04. Repealed. Laws 1983, LB 447, § 104.

25-530.05 Repealed. Laws 1983, LB 447, § 104.

25-530.05. Repealed. Laws 1983, LB 447, § 104.

25-530.06 Repealed. Laws 1983, LB 447, § 104.

25-530.06. Repealed. Laws 1983, LB 447, § 104.

25-530.07 Repealed. Laws 1983, LB 447, § 104.

25-530.07. Repealed. Laws 1983, LB 447, § 104.

25-530.08 Company, firm, or unincorporated association; appointment of agent; execution on judgment; fees.

25-530.08. Company, firm, or unincorporated association; appointment of agent; execution on judgment; fees.When a company, firm, or unincorporated association described in section 25-313 has its principal place of business or activity outside of this state and does not have a usual place of doing business or activity within the state or a clerk or general agent within the state, such company, firm, or unincorporated association shall appoint an agent or agents in this state, and before it is authorized to engage in any kind of business or activity in this state, such company, firm, or unincorporated association shall file in the office of the Secretary of State a certified statement setting forth that such company, firm, or unincorporated association is doing business or conducting activities in the State of Nebraska, stating the nature of the business or activity, and designating an agent or agents within the State of Nebraska upon whom process or other legal notice of the commencement of any legal proceeding or in the prosecution thereof may be served. Executions issued on any judgments rendered in such proceedings shall be levied only on property of the company, firm, or unincorporated association. A fee of five dollars shall be paid for filing the certified statement with the Secretary of State. If there is a change of the agent or agents or if there is a change of street address, a statement shall be filed with the Secretary of State stating the name of the new agent or agents or the new street address or both. A filing fee of three dollars shall be paid for the filing of such statement. This section shall not apply to domestic limited partnerships and foreign limited partnerships governed by the Nebraska Uniform Limited Partnership Act. SourceR.S.1867, Code § 25, p. 397; R.S.1913, § 7595; C.S.1922, § 8538; C.S.1929, § 20-314; R.S.1943, § 25-314; Laws 1947, c. 82, § 2, p. 257; Laws 1959, c. 96, § 1, p. 414; Laws 1961, c. 109, § 1, p. 346; Laws 1974, LB 951, § 1; Laws 1983, LB 447, § 16; R.S.Supp.,1984, § 25-314; Laws 1989, LB 482, § 5. Cross ReferencesNebraska Uniform Limited Partnership Act, see section 67-296. Annotations1. Right to serve2. Procedure3. Miscellaneous1. Right to serveAn unincorporated association to represent employees in collective bargaining must comply with this section before it may bring an action in court. Nebraska Council of Educational Leaders v. Nebraska Dept. of Education, 189 Neb. 811, 205 N.W.2d 537 (1973).Prior to 1947 amendment, where unincorporated association was not formed to carry on some trade or business, or to hold some species of property in this state, service of process could not be properly made on such association in this state. Hurley v. Brotherhood of Railroad Trainmen, 147 Neb. 781, 25 N.W.2d 29 (1946).Nonresident firm of attorneys, not having office in this state, was not subject to service of process under this section. State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439, 20 N.W.2d 232 (1945).Where the members of a partnership reside in another state and are not within this state, service of summons upon the firm cannot be made in a county where it has no usual place of business. Stelling v. Peddicord, 78 Neb. 779, 111 N.W. 793 (1907).To authorize summons to another county, nonresident must be bona fide defendant. Stull Bros. v. Powell, 70 Neb. 152, 97 N.W. 249 (1903).Section is cumulative, and does not prevent service on individual members of partnership. Herron v. Cole Bros., 25 Neb. 692, 41 N.W. 765 (1889).In suit to enjoin violation of federal statute by members of partnership, federal district court for Missouri, wherein members resided, had jurisdiction although place of partnership's business was in Nebraska. Sutherland v. United States, 74 F.2d 89 (8th Cir. 1934).2. ProcedureDefendant having given other reasons for refusing to recognize plaintiff as negotiating agent could not change ground after litigation started and base refusal on tardy filing of certificate designating agent. Orleans Education Assn. v. School Dist. of Orleans, 193 Neb. 675, 229 N.W.2d 172 (1975).In suit against a partnership, filing of a petition by individual partners to remove suit to federal court is not a general appearance but a special appearance only. Security State Bank of Norfolk v. Jackson Bros., Boesel & Co., 130 Neb. 562, 265 N.W. 747 (1936).Service in an action against a partnership may be made by copy left at the usual place of business. Wittstruck v. Temple, 58 Neb. 16, 78 N.W. 456 (1899).Where action is brought against firm in the individual names of its members and one member is absent from state, service upon the others is sufficient. Winters v. Means, 25 Neb. 241, 41 N.W. 157 (1888).Service on partnership at usual place of business is sufficient. Rosenbaum & Co. v. Hayden & Co., 22 Neb. 744, 36 N.W. 147 (1888).3. MiscellaneousService of process in an action against individual members of a partnership is not governed by this section. Hanna v. Emerson, 45 Neb. 708, 64 N.W. 229 (1895).

25-531 Lis pendens; notice; where filed; contents; recording; cancellation; filing fee.

25-531. Lis pendens; notice; where filed; contents; recording; cancellation; filing fee.When the summons has been served or publication made, the action is pending so as to charge third persons with notice of pendency. While the action is pending no interest can be acquired by third persons in the subject matter thereof, as against the plaintiff's title. In all actions brought to affect the title to real property, the plaintiff may either at the time of filing his or her complaint or afterwards, file, or in case any defendant sets up an affirmative cause of action and demands relief which shall affect the title to real estate, he or she may, at the time of filing such answer or at any time afterwards, file with the clerk or register of deeds of each county in which the real estate thus to be affected, or any part thereof, is situated, a notice of the pendency of such action. The notice shall contain the names of the parties, the object of the action, and a description of the property in such county sought to be affected thereby. If the action is for foreclosure of a mortgage, such notice shall contain the date of the mortgage, the parties thereto, and the time and place of recording the same. The clerk or register of deeds of such county shall record the notice thus filed and enter the same upon the numerical index of all lands, any part of which is included in the description in the notice, for which he or she shall be entitled to receive filing fees in accordance with sections 33-109 and 33-112, to be paid by the person filing such notice, and which shall be taxed as part of the costs in the action. From the time of filing such notice the pendency of such action shall be constructive notice to any purchaser or encumbrancer to be affected thereby. Every person whose conveyance or encumbrance is subsequently executed or subsequently recorded shall be deemed to be a subsequent purchaser or encumbrancer and shall be bound by all proceedings taken in the action after the filing of such notice to the same extent as if he or she were made a party to the action. The court in which such action was commenced or any judge thereof may at any time thereafter on the application of any person aggrieved, on good cause shown, and on such notice as the court or judge may determine, order the notice to be canceled by the clerk or register of deeds of any county in which the notice may have been filed or recorded by filing a notice of release. In actions in which such notice is filed in a county or counties, other than the county in which the action is pending, the county clerk or the register of deeds of the county in which the action was begun may cancel such notice by executing a written release under his or her hand and seal by reason of the order of the court or judge, and forward such release by mail to the county clerk or register of deeds of the county in which the notice has been filed or recorded, and which certificate such county clerk or register of deeds shall record in the records of his or her office. At any time after such notice of pendency is recorded, the party on whose behalf the same was filed or the party's attorney of record may cause the notice to be canceled in the office of the county clerk or register of deeds of any county in which the notice has been filed or recorded. Such cancellation may be made by written release in the same manner as such cancellations are entered on order of the court. For the service required by this section, the county clerk or register of deeds shall be entitled to charge and receive fees in accordance with sections 33-109 and 33-112, to be paid by the party causing the service to be performed. SourceR.S.1867, Code § 85, p. 407; Laws 1887, c. 92, § 1, p. 643; R.S.1913, § 7651; C.S.1922, § 8595; C.S.1929, § 20-531; R.S.1943, § 25-531; Laws 1959, c. 140, § 1, p. 544; Laws 1963, c. 140, § 1, p. 517; Laws 1969, c. 181, § 1, p. 772; Laws 1971, LB 90, § 1; Laws 2002, LB 876, § 18.Annotations1. Scope2. Subsequent purchasers1. ScopeThe purpose and nature of the property and the intent of the parties determines whether buildings or other items located on leased land affect the title to real property. Ondrak v. Matis, 270 Neb. 46, 699 N.W.2d 367 (2005).Lis pendens has no application to independent titles, not derived from any of the parties to the suit nor in succession to them. Coffin v. Old Line Life Ins. Co., 138 Neb. 857, 295 N.W. 884 (1941).Claims based upon deed made after lis pendens is filed are subordinated to and determined by the judgment in mortgage foreclosure suit. Hadley v. Corey, 137 Neb. 204, 288 N.W. 826 (1939).Notice of pendency of suit, while preventing other than parties to the suit from acquiring interest in subject matter pendente lite, does not affect existing rights or prevent the court from their adjudication. First Nat. Bank of Decatur v. Young, 124 Neb. 598, 247 N.W. 586 (1933).In action to wind up farm lease partnership, intervening creditors of one partner, having constructive notice hereunder of their debtor's limited interest, must share with other partner in distribution of debtor's property. Sacks v. Lytle, 119 Neb. 642, 230 N.W. 501 (1930).Filing lis pendens at commencement of quiet title action gives constructive notice of plaintiff's claims. Gwynne v. Goldware, 102 Neb. 260, 166 N.W. 625 (1918).Filing lis pendens does not impound property for plaintiff not having general or specific lien. Purchaser after action is started is not bound by rights subsequently set up by amendment. Hulen v. Chilcoat, 79 Neb. 595, 113 N.W. 122 (1907).Section does not refer to rights of third parties not derived through parties to suit. Merrill v. Wright, 65 Neb. 794, 91 N.W. 697 (1902).Lessee under lease made during suit is subject to decree against lessor. McLean v. McCormick, 4 Neb. Unof. 187, 93 N.W. 697 (1903).Lis pendens applies only to specific property pointed out by pleadings, and must be definite. Hillebrand v. Nelson, 1 Neb. Unof. 783, 95 N.W. 1068 (1901).Nonresident assignee of note and mortgage, failing to record his assignment, is bound by decree canceling mortgage. Heck v. Nicholas, 6 F.2d 10 (8th Cir. 1925).2. Subsequent purchasersThe court having jurisdiction, a party cannot, while the action is pending, dispose of the property and avoid the effect of the final judgment in the case. Stanton v. Stanton, 146 Neb. 71, 18 N.W.2d 654 (1945).A purchaser pendente lite need not be made a party to a mechanic's lien foreclosure proceeding. Johnson v. Olson, 132 Neb. 778, 273 N.W. 201 (1937).One failing to record deed until after lis pendens filed in action to set aside deeds is subsequent purchaser and bound by proceedings. Justice v. Shaw, 103 Neb. 423, 172 N.W. 253 (1919).Amendment of 1887 cutting off prior unrecorded interests was constitutional; purpose of amendment stated. Munger v. Beard & Bro., 79 Neb. 764, 113 N.W. 214 (1907).Mortgagee acquiring rights after levy of attachment took subject thereto even though petition in attachment suit was thereafter amended. Nagle v. First Nat. Bank of Omaha, 57 Neb. 552, 77 N.W. 1074 (1899).Purchaser pendente lite is bound by decree. Clark v. Charles, 55 Neb. 202, 75 N.W. 563 (1898); Lincoln Rapid Transit Co. v. Rundle, 34 Neb. 559, 52 N.W. 563 (1892).Judgment is superior to mortgage executed during term, though recorded before judgment. Norfolk State Bank v. Murphy, 40 Neb. 735, 59 N.W. 706 (1894).Purchaser after summons served is subject to judgment. Shuman v. Willets, 17 Neb. 478, 23 N.W. 358 (1885).

25-532 Notice of judgment when property situated in more than one county.

25-532. Notice of judgment when property situated in more than one county.When any part of the real property, the subject matter of an action, is situated in any other county or counties than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the clerk's office of such other county or counties before it shall operate therein as a notice, so as to charge third persons as provided in section 25-531. It shall operate as such notice without record in the county where it is rendered; but this section shall not apply to actions or proceedings under any statute now in force which does not require such record. SourceR.S.1867, Code § 86, p. 407; R.S.1913, § 7652; C.S.1922, § 8596; C.S.1929, § 20-532; R.S.1943, § 25-532.

25-533 Attachment and execution issued from another county; notice upon entry in encumbrance book.

25-533. Attachment and execution issued from another county; notice upon entry in encumbrance book.No levy of attachment or execution on real estate issued from any other county shall be notice to a subsequent vendee or encumbrancer in good faith, unless the sheriff shall have entered in a book, which shall be kept in the office of the clerk of the district court by such clerk and called the "encumbrance book," a statement that the land, describing it, has been so attached or levied on, the cause in which it was so attached, and when it was done, signed by such sheriff. Such book shall be open, as other books kept by such clerk, to public inspection. SourceLaws 1895, c. 73, § 2, p. 314; R.S.1913, § 7653; C.S.1922, § 8597; C.S.1929, § 20-533; R.S.1943, § 25-533.

25-534 Order, motion, or notice; service; delivery.

25-534. Order, motion, or notice; service; delivery.Whenever in any action or proceeding, any order, motion, notice, or other document, except a summons, is required by statute or rule of the Supreme Court to be served upon or given to any party, the service or delivery shall be made in accordance with the rules of pleading in civil actions promulgated by the Supreme Court pursuant to section 25-801.01. SourceLaws 1959, c. 100, § 1, p. 420; Laws 1981, LB 42, § 15; Laws 2008, LB1014, § 8.Operative Date: July 18, 2008AnnotationsThis section did not apply when the defendant in a paternity action did not appear in the action. State v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007).Notice was satisfied when address used was correct but included wrong office designation and no evidence showed notice was not received. City of Lincoln v. MJM, Inc., 9 Neb. App. 715, 618 N.W.2d 710 (2000).

25-535 Person, defined.

25-535. Person, defined.As used in sections 25-535 to 25-541, person includes an individual, executor, administrator, personal representative, corporation, partnership, limited liability company, association, or other legal or commercial entity, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state. SourceLaws 1967, c. 143, § 1, p. 439; Laws 1993, LB 121, § 167. AnnotationsUnder this and succeeding sections where copies of complaint, summons, and interrogatories were sent by registered mail to limited partnership defendant at its foreign office, Nebraska long-arm statute was satisfied. Blum v. Kawaguchi, Ltd., 331 F.Supp. 216 (D. Neb. 1971).

25-536 Jurisdiction over a person.

25-536. Jurisdiction over a person.A court may exercise personal jurisdiction over a person:(1) Who acts directly or by an agent, as to a cause of action arising from the person:(a) Transacting any business in this state;(b) Contracting to supply services or things in this state;(c) Causing tortious injury by an act or omission in this state;(d) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;(e) Having an interest in, using, or possessing real property in this state; or(f) Contracting to insure any person, property, or risk located within this state at the time of contracting; or(2) Who has any other contact with or maintains any other relation to this state to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States. SourceLaws 1967, c. 143, § 2, p. 439; Laws 1983, LB 447, § 35. Cross ReferencesResident agent appointment in real estate matters, see section 25-528.Service on foreign corporations, registered agent, see sections 21-19,152, 21-19,155, 21-20,174, and 21-20,177.Service on foreign insurance corporations, see sections 44-135, 44-2009 to 44-2013, and 44-5507.Workers' compensation cases, additional method of jurisdiction exists, see sections 48-146, 48-175, 48-175.01, and 48-190. Annotations1. Subject to jurisdiction2. Not subject to jurisdiction3. Miscellaneous1. Subject to jurisdictionNebraska's long-arm statute confers jurisdiction over a noncustodial parent who removes a minor child from the child's Nebraska home under the guise of exercising visitation rights in another jurisdiction and then intentionally subjects the child to harm before returning her to this state. S.L. v. Steven L., 274 Neb. 646, 742 N.W.2d 734 (2007).Nebraska's long-arm statute extends Nebraska's jurisdiction over nonresidents having any contact with or maintaining any relation to this state as far as the U.S. Constitution permits. S.L. v. Steven L., 274 Neb. 646, 742 N.W.2d 734 (2007).A parent company had sufficient minimum contacts with Nebraska for a Nebraska court to exercise personal jurisdiction where the parent company contracted with its Nebraska subsidiary, coordinated the exchange of equipment between the subsidiary and other centers, prepared all tax reports, provided all forms necessary for operations in Nebraska, and operated a toll-free telephone number and Web site accessible from Nebraska. Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).Nebraska's long-arm statute extends Nebraska's jurisdiction over nonresidents having any contact with or maintaining any relation to this state as far as the U.S. Constitution permits. Ameritas Invest. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191 (2005); Brunkhardt v. Mountain West Farm Bureau Mut. Ins., 269 Neb. 222, 691 N.W.2d 147 (2005).The long-arm statute expressly extends Nebraska's jurisdiction over nonresidents having any contact with or maintaining any relation with Nebraska as far as the U.S. Constitution permits. Quality Pork Internat. v. Rupari Food Servs., 267 Neb. 474, 675 N.W.2d 642 (2004).This section expressly extends Nebraska's jurisdiction over nonresidents as far as the U.S. Constitution permits. Crete Carrier Corp. v. Red Food Stores, Inc., 254 Neb. 323, 576 N.W.2d 760 (1998).This section expressly extends Nebraska's jurisdiction over nonresidents as far as the U.S. Constitution permits. The fiduciary shield doctrine is not a bar to personal jurisdiction over a corporate agent or employee when the agent or employee has sufficient minimum contacts of his own with Nebraska to satisfy federal due process requirements. Crystal Clear Optical v. Silver, 247 Neb. 981, 531 N.W.2d 535 (1995).This section explicitly extends Nebraska's jurisdiction as far as the U.S. Constitution permits. Wagner v. Unicord Corp., 247 Neb. 217, 526 N.W.2d 74 (1995).Nonresident defendant's conduct and connection with the State of Nebraska was such that it reasonably should have anticipated being haled into court over plaintiff's cause of action for the return of its loan application fee. 24th and Dodge Ltd. v. Commercial Nat. Bank, 243 Neb. 98, 497 N.W.2d 386 (1993).In order to subject a defendant to a judgment in personam, if the defendant is not within the territory of the forum, due process requires that such defendant have certain minimum contacts with the forum state so that maintenance of the suit does not offend traditional notions of fair play and substantial justice. McGowan Grain v. Sanburg, 225 Neb. 129, 403 N.W.2d 340 (1987).The establishment of a marital relationship in this state from which a nonresident has left is sufficient minimum contact with this state to permit a court of this state to exercise in personam jurisdiction over the nonresident in an action to dissolve that marriage. York v. York, 219 Neb. 883, 367 N.W.2d 133 (1985).Company having an interest in, using or possessing real property in this state at a time when it was transacting business in this state was subject to jurisdiction of court in this state and its special appearance was properly overruled. Grand Island Hotel Corp. v. Second Island Development Co., 191 Neb. 98, 214 N.W.2d 253 (1974).Nonresident manufacturer comes under long-arm statute when it places its products in the stream of commerce expecting delivery in Nebraska. Stoehr v. American Honda Motor Co., Inc., 429 F.Supp. 763 (D. Neb. 1977).By statute, defendant is under state jurisdiction when defendant contracts for sale of motorcycles in Nebraska. Hetrick v. American Honda Motor Co., Inc., 429 F.Supp. 116 (D. Neb. 1976).Where after defendant Illinois corporation entered into distributorship agreement for Nebraska, area contacts were numerous and continuous. Nebraska corporations antitrust cause of action arose out of interrelated acts allegedly indicating unfair competition; sufficient contacts existed to permit in personam jurisdiction. Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 333 F.Supp. 187 (D. Neb. 1971).Where the delivery, installation, operation, and alleged injury resulting from defective machine occurred in Nebraska, the manufacturer who had shipped same indirectly was subject to Nebraska jurisdiction. Blum v. Kawaguchi, Ltd., 331 F.Supp. 216 (D. Neb. 1971).2. Not subject to jurisdictionNeither an act of sexual intercourse between consenting adults nor the failure of a putative father to support his child is an act "causing tortious injury" under the terms of the Nebraska long-arm statute. State ex rel Larimore v. Snyder, 206 Neb. 64, 291 N.W.2d 241 (1980).For tortious act in other state, jurisdiction for damage action in Nebraska not supported by telephone calls, travel to Nebraska, and unspecified acts which induced victim to travel to other state. Von Seggern v. Saikin, 187 Neb. 315, 189 N.W.2d 512 (1971).Where defendants maintained no offices, salespersons, or agents in Nebraska; where contracts neither executed nor performed in Nebraska; where goods neither came from or to Nebraska; the Nebraska contracts insufficient to attach jurisdiction under long-arm statutes. Aaron Ferer & Sons Co. v. American Compressed Steel Co., 564 F.2d 1206 (8th Cir. 1977) affirming, Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450 (8th Cir. 1977).National Trailer Leasing Company under facts of case not subject to jurisdiction under this section which requires actual presence in state plus additional requirement of regular or persistent course of conduct. Peterson v. U-Haul Co., 409 F.2d 1174 (8th Cir. 1969).Where the activities of a physician and hospital in administering chemotherapy treatment were localized and confined to the State of Iowa, there were insufficient contacts with Nebraska for purposes of application of the Nebraska long-arm statute in a wrongful death action against the physician and hospital, notwithstanding the foreseeability of alleged effects occurring in Nebraska where the patient resided. Glover v. Wagner, 462 F.Supp. 308 (D. Neb. 1978).Where purchase contracts were executed outside Nebraska by nonresident sellers for shipment of goods to other states, and defendants did not transact nor solicit business in Nebraska, buyers' Nebraska residence did not give federal court in Nebraska personal jurisdiction in this suit under Bankruptcy Act. Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 418 F.Supp. 674 (D. Neb. 1976).3. MiscellaneousThe provisions of this section requiring notice of homestead exemption rights do not apply to foreclosure of a tax lien represented by a tax sale certificate. Destiny 98 TD v. Miodowski, 269 Neb. 427, 693 N.W.2d 278 (2005).Nebraska's long-arm statute is to be interpreted broadly in view of the rationale and philosophy underlying its adoption. Quality Pork Internat. v. Rupari Food Servs., 267 Neb. 474, 675 N.W.2d 642 (2004).The benchmark for determining if the exercise of personal jurisdiction satisfies due process is whether the defendant's minimum contacts with the forum state are such that the defendant should reasonably anticipate being haled into court there. The existence of a Nebraska choice-of-law clause is a factor to be considered in determining whether a party should reasonably anticipate being haled into court in Nebraska. Castle Rose v. Philadelphia Bar & Grill of Arizona, Inc., 254 Neb. 299, 576 N.W.2d 192 (1998).While language of this section does not cover divorce in specific words, it indicates the legislative intention to apply the minimum contacts rule where it does not offend traditional concepts of fair play and substantial justice. Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971).Out-of-state seller, who allegedly sold heifers to a cow-calf operation that were unfit for breeding purposes, did not have continuous and systematic business contact with Nebraska sufficient to warrant the exercise of personal general jurisdiction over seller. There was no evidence that seller designated an agent for service of process, held a license in the state, had employees in the state, or was incorporated in the state. South Dakota cattle seller's sending industry directories, in which it had placed advertisements to buyer, and maintaining 800 number, was not purposeful availment to the laws of Nebraska, as was required to warrant exercise of specific jurisdiction over seller in buyers' action alleging that seller breached warranty that heifers were fit for breeding purposes. Higgins v. Rausch Herefords, 9 Neb. App. 212, 609 N.W.2d 712 (2000).Concept of due process in Nebraska's long-arm statutes is at least as broad as the constitutional standard of due process. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1977).Question of whether in personam jurisdiction is acquired under Nebraska long-arm statute depends primarily on the quantity, nature, and quality of the parties' contacts with the forum state. Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450 (8th Cir. 1977).It is a nonresident defendant's contacts with the forum state that are of interest in determining if in personam jurisdiction exists, not its contacts with the resident plaintiff. Gendler v. General Growth Properties, 461 F.Supp. 434 (D. Neb. 1978).Nebraska long-arm statute is limited only by the constitutional constraints imposed by the minimum contacts rule. Vergara v. Aeroflot Soviet Airlines, 390 F.Supp. 1266 (D. Neb. 1975).Under facts in this case, defendant was amenable to service, and when copy of complaint and a summons were served by registered mail with signed receipt required, requirements of due process were met. General Leisure Products Corp. v. Gleason Corp., 331 F.Supp. 278 (D. Neb. 1971).

25-537 Service outside state.

25-537. Service outside state.When the exercise of personal jurisdiction is authorized by sections 25-535 to 25-541, service may be made outside this state. SourceLaws 1967, c. 143, § 3, p. 439. AnnotationsUnless defendant transacts some business in Nebraska, jurisdiction over him may not be obtained hereunder by service outside the state. Conner v. Southern, 186 Neb. 164, 181 N.W.2d 446 (1970).Concept of due process in Nebraska's long-arm statutes is at least as broad as the constitutional standard of due process. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1977).

25-538 Action in another forum; stay or dismissal of action.

25-538. Action in another forum; stay or dismissal of action.When the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just. SourceLaws 1967, c. 143, § 4, p. 439.AnnotationsTrial court did not abuse its discretion in refusing to dismiss case on basis of forum non conveniens. Woodmen of the World Life Ins. Soc. v. Kight, 246 Neb. 619, 522 N.W.2d 155 (1994).Where diverse parties to a contract have agreed in writing that the defendant will assume the burden of litigating an action on the contract in the plaintiff's home jurisdiction, and where there is no evidence of fraud or duress or any other action by the plaintiff that would retroactively render void the contractual forum selection, this section does not authorize a court to arbitrarily amend the contract by nullifying the forum selection clause and reassigning to the plaintiff the burden of litigating an action on the contract in a foreign jurisdiction. Woodmen of the World Life Ins. Soc. v. Walker, 1 Neb. App. 882, 510 N.W.2d 439 (1993).

25-539 Jurisdiction authorized.

25-539. Jurisdiction authorized.A court of this state may exercise jurisdiction on any other basis authorized by law. SourceLaws 1967, c. 143, § 5, p. 440. AnnotationsIn personam jurisdiction may be acquired over a nonresident defendant in a divorce action by extra-territorial personal service of process made in accordance with a statute of this state if there exists sufficient contacts between the defendant and this state relevant to the cause of action to satisfy traditional notions of fair play and substantive justice. In this case, defendant's last marital domicile was in Nebraska and no showing was made that it was later superseded by a new domicile. Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971).

25-540 Service outside state; manner.

25-540. Service outside state; manner.(1) When the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:(a) In the manner prescribed for service within this state;(b) In the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction;(c) As directed by the foreign authority in response to a letter rogatory; or(d) As directed by the court.(2) Proof of service outside this state may be made by affidavit of the individual who made the service or in the manner prescribed by the law of this state, the order pursuant to which the service is made, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. SourceLaws 1967, c. 143, § 6, p. 440; Laws 1983, LB 447, § 36. Cross ReferencesWorkers' compensation cases, additional nonresident jurisdiction and method of proof of service exists, see section 48-175.01. AnnotationsWhen service of process is made outside of the state by mail, proof of service shall include a receipt signed by the addressee or other evidence of personal delivery to the addressee satisfactory to the court. Lydick v. Smith, 201 Neb. 45, 266 N.W.2d 208 (1978).Proof of service by mail must include a receipt signed by the addressee, or other satisfactory evidence of personal delivery, and an affidavit to be considered on appeal must be offered in evidence and preserved in the bill of exceptions. Anderson v. Autocrat Corp., 194 Neb. 278, 231 N.W.2d 560 (1975).Where affidavit showed service personally upon defendant Reiff individually and as district manager of defendant corporation, and by certified mail, return receipt requested upon individual defendants in their office in Morton, Illinois, together with return receipts showing that copies of summons and complaint were served upon each, the process was in conformity with this section. Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 333 F.Supp. 187 (D. Neb. 1971).

25-541 Sections, how construed.

25-541. Sections, how construed.Sections 25-535 to 25-541 do not repeal or modify any other law of this state permitting another procedure for service. SourceLaws 1967, c. 143, § 7, p. 440. AnnotationsA 1974 amendment to this statute was intended to eliminate proceedings in error as a method of obtaining district court review of a county court decision; thus, the action was properly dismissed. SapaNajin v. Wolford, 222 Neb. 387, 383 N.W.2d 796 (1986).On appeal from the county or municipal court to the district court in civil matters under this section, the district court is to review the record and reach an independent conclusion without reference to the decision of the county or municipal court. However, on appeal to the Supreme Court, the judgment of the district court on the facts will not be set aside if there is sufficient competent evidence on the record to support it. Denton v. Nelson, 205 Neb. 833, 290 N.W.2d 462 (1980); County of Merrick v. Beck, 205 Neb. 829, 290 N.W.2d 636 (1980).Order of county court dismissing case for plaintiff's failure to timely answer interrogatories could be set aside by district court upon trial de novo on the record, and Supreme Court will affirm in absence of showing of abuse of discretion. Von Seggern v. Kassmeier Implement, 195 Neb. 791, 240 N.W.2d 842 (1976).

25-542 Service of process; applicability.

25-542. Service of process; applicability.Unless specifically provided to the contrary or the context otherwise requires, the provisions of Chapter 25, article 5, on service of process, as such provisions may from time to time be amended, shall apply to all civil proceedings in all courts of this state and to all proceedings under any statute which refers to or incorporates the general provisions on process or service of process. SourceLaws 1983, LB 447, § 37.

25-543 Repealed. Laws 1999, LB 43, § 30.

25-543. Repealed. Laws 1999, LB 43, § 30.

25-601 Dismissal without prejudice.

25-601. Dismissal without prejudice.An action may be dismissed without prejudice to a future action (1) by the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court; (2) by the court where the plaintiff fails to appear at the trial; (3) by the court for want of necessary parties; (4) by the court on the application of some of the defendants where there are others whom the plaintiff fails to diligently prosecute; (5) by the court for disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases on the trial of the action the decision must be upon the merits. SourceR.S.1867, Code § 430, p. 465; R.S.1913, § 7654; C.S.1922, § 8598; C.S.1929, § 20-601; R.S.1943, § 25-601.Annotations1. Before final submission2. After final submission3. Want of necessary parties4. Disobedience by plaintiff5. Miscellaneous1. Before final submissionA plaintiff has the right to dismiss the action it has brought at any time prior to final submission. United States Fire Ins. Co. v. Affiliated FM Ins. Co., 225 Neb. 218, 403 N.W.2d 383 (1987).An order sustaining a demurrer is not a final order. Therefor, an action may be dismissed as a matter of right upon plaintiff's motion following the demurrer. Koll v. Stanton-Pilger Drainage Dist., 207 Neb. 425, 299 N.W.2d 435 (1980).Plaintiff had right hereunder to dismiss his claim for reinstatement in union and could then pursue claim for damages for wrongful discharge without exhausting administrative remedies. Poppert v. Brotherhood of R. R. Trainmen, 187 Neb. 297, 189 N.W.2d 469 (1971).Right of plaintiff to dismiss action is not a matter of judicial grace or discretion. In divorce action, until trial court enters an order imposing some obligation, plaintiff has unqualified right to dismiss regardless of nature of pleadings on file. Werner v. Werner, 186 Neb. 558, 184 N.W.2d 646 (1971).County attorney may dismiss action in juvenile court before trial without leave of court. In re Interest of Moore, 186 Neb. 67, 180 N.W.2d 917 (1970).Plaintiff may dismiss action as a matter of right at any time before final submission of case. Gebhart v. Tri-State G. & T. Assn., 181 Neb. 457, 149 N.W.2d 41 (1967).An action may be dismissed without prejudice by a plaintiff as a matter of right at any time before final submission of the case. Giesler v. City of Omaha, 175 Neb. 706, 123 N.W.2d 650 (1963).Section applies to dismissal of counterclaim before final submission. Harbert v. Mueller, 156 Neb. 838, 58 N.W.2d 221 (1953).A counterclaim may be dismissed as a matter of right at any time before final submission. Feight v. Mathers, 153 Neb. 839, 46 N.W.2d 492 (1950).Plaintiff may dismiss without prejudice to take advantage of amended venue statutes and bring action in another county. Grosc v. Bredthauer, 136 Neb. 43, 284 N.W. 869 (1939).The right of the plaintiff to dismiss without prejudice before final submission applies in appeals from the Workmen's Compensation Court to district court. Chilen v. Commercial Casualty Ins. Co., 135 Neb. 619, 283 N.W. 366 (1939).Before final submission of a case to the jury or court, a dismissal by plaintiff without prejudice to a future action is not a matter of judicial grace or discretion, but is a statutory right. Duffy v. Cody, 129 Neb. 737, 262 N.W. 828 (1935).Before final submission plaintiff may dismiss as a matter of right. Reams v. Sinclair, 97 Neb. 542, 150 N.W. 826 (1915); Snyder v. Collier, 85 Neb. 552, 123 N.W. 1023 (1909).One of several plaintiffs has right to dismiss action so far as he is concerned; informality in dismissal is cured where cause proceeds to final determination between remaining parties. Henkel v. Boudreau, 94 Neb. 338, 143 N.W. 236 (1913).Plaintiff may, as a matter of right, dismiss his action without prejudice at any time before its final submission. Snyder v. Collier, 85 Neb. 552, 123 N.W. 1023 (1909).Plaintiff has absolute right to dismiss without prejudice before final submission of cause. Beals v. Western Union Tel. Co., 53 Neb. 601, 74 N.W. 54 (1898); Sharpless v. Giffen, 47 Neb. 146, 66 N.W. 285 (1896).Where property was not taken or has been returned, plaintiff in replevin may dismiss. Saussay v. Lemp Brew. Co., 52 Neb. 627, 72 N.W. 1026 (1897).Plaintiff in replevin, who has taken property, cannot dismiss without defendant's consent. Vose v. Muller, 48 Neb. 602, 67 N.W. 598 (1896).Plaintiff in replevin, who has obtained possession of property under the writ, cannot dismiss without consent of defendant. Garber v. Palmer, Blanchard & Co., 47 Neb. 699, 66 N.W. 656 (1896).Trial court has no authority to enter involuntary nonsuit and judgment of dismissal. Proper practice is to instruct jury to return verdict for defendant. Zittle v. Schlesinger, 46 Neb. 844, 65 N.W. 892 (1896).Refusal of court to dismiss is not final order. Supreme Court will not reinstate action when plaintiff has dismissed. Grimes v. Chamberlain, 27 Neb. 605, 43 N.W. 395 (1889).Plaintiff may dismiss as to one defendant during trial though answer pleads misjoinder of defendants. Morrissey v. Schindler, 18 Neb. 672, 26 N.W. 476 (1886).This section applies to a case on appeal from the small claims court pending in district court, if there has not been final submission to the district court judge. Sutherland v. Shoemaker, 6 Neb. App. 157, 570 N.W.2d 375 (1997).2. After final submissionAfter defendant moves for a directed verdict and arguments of both parties are completed, a case is under submission and plaintiff loses absolute right to dismiss without prejudice. Any time before final submission of the case to the fact finder, plaintiff may dismiss an action, without prejudice, as a matter of right. Collection Specialists v. Vesely, 238 Neb. 181, 469 N.W.2d 549 (1991).When a case has been submitted upon a motion for a directed verdict, plaintiff's absolute right to dismiss without prejudice is lost, but when the motion is overruled there is no longer a final submission where issues remain to be determined by the jury and have not been submitted to it. Miller v. Harris, 195 Neb. 75, 236 N.W.2d 828 (1975).Where plaintiff presented her case and rested, the defendant moved for dismissal, and the court took the matter under advisement, the case was submitted and plaintiff had lost her right to dismiss without prejudice. Gydesen v. Gydesen, 188 Neb. 538, 197 N.W.2d 67 (1972).After final submission, dismissal without prejudice requires leave of court. Tuttle v. Wyman, 149 Neb. 769, 32 N.W.2d 742 (1948).When defendant moves to dismiss plaintiff's action at close of plaintiff's evidence, he admits plaintiff's testimony to be true, together with every conclusion that may fairly and reasonably be drawn therefrom, and court must thereupon determine as question of law whether plaintiff's evidence is sufficient to support judgment for plaintiff. Schroeder v. Bartlett, 129 Neb. 645, 262 N.W. 447 (1935).Dismissal is not demandable as a right after the cause has been fully tried and unconditionally submitted to the court. Pettegrew v. Pettegrew, 128 Neb. 783, 260 N.W. 287 (1935).Final submission of action contemplates its submission upon both law and fact. Plattsmouth Loan & Bldg. Assn. v. Sedlak, 128 Neb. 509, 259 N.W. 367 (1935).Trial court's ruling on defendant's motion to dismiss jury was final submission hereunder so that plaintiff could not dismiss the case without prejudice thereafter. Stungis v. Wavecrest Realty Co., 124 Neb. 769, 248 N.W. 78 (1933).Dismissal after final submission must be by order of court entered on journal. Knaak v. Brown, 115 Neb. 260, 212 N.W. 431 (1927).Plaintiff may dismiss without prejudice after reversal and remand for new trial. Bancroft Drainage Dist. v. Chicago, St. P., M. & O. Ry. Co., 102 Neb. 455, 167 N.W. 731 (1918).Court may permit dismissal after submission. Nelson v. Omaha & C. B. St. Ry. Co., 93 Neb. 154, 139 N.W. 860 (1913).Plaintiff appealing to district court may dismiss action. Dismissal is not affirmance of judgment below, and is not res judicata. Thornhill v. Hargreaves, 76 Neb. 582, 107 N.W. 847 (1906).Absolute right to dismiss is lost after submission on demurrer to evidence. Fronk v. Evans City Steam Laundry Co., 70 Neb. 75, 96 N.W. 1053 (1903).When a case has been submitted upon a demurrer to the evidence, and the demurrer sustained, plaintiff's absolute right to dismiss without prejudice is lost. Bee Building Co. v. Dalton, 68 Neb. 38, 93 N.W. 930 (1903).Court may impose reasonable terms or refuse dismissal. Horton v. State ex rel. Hayden, 63 Neb. 34, 88 N.W. 146 (1901).Involuntary nonsuit for failure of proof is unauthorized; it is error, without prejudice, where directed verdict would have been proper. Thompson v. Missouri P. Ry., 51 Neb. 527, 71 N.W. 61 (1897).Plaintiff cannot dismiss after cause has been submitted to court or jury. State ex rel. Board of Supervisors of Holt County v. Hazelet, 41 Neb. 257, 59 N.W. 891 (1894).Appellant from justice court may dismiss without consent of appellee. Eden Musee Co. v. Yohe, 37 Neb. 452, 55 N.W. 866 (1893).Equity rule prevails; court may excuse payment of costs in first action as prerequisite to maintaining second. Union P. Ry. Co. v. Mertes, 35 Neb. 204, 52 N.W. 1099 (1892).After a demurrer to plaintiff's petition has been sustained, plaintiff cannot afterwards dismiss the action. State ex rel. Burlington & M. River R. R. Co. v. Scott, 22 Neb. 628, 36 N.W. 121 (1888).Plaintiff's privilege of dismissal without prejudice is not demandable as of right after cause has been submitted, but may be granted in exercise of discretion. Iowa-Nebraska Light & Power Co. v. Daniels, 63 F.2d 322 (8th Cir. 1933).3. Want of necessary partiesAction may be dismissed by court for want of necessary parties. Dempster v. Ashton, 125 Neb. 535, 250 N.W. 917 (1933).Where motion is made to dismiss for want of prosecution, defendant must serve notice on plaintiff. Berggren v. Berggren, 24 Neb. 764, 40 N.W. 284 (1888).4. Disobedience by plaintiffA civil action may be dismissed if, absent a showing of good cause, a litigant fails to prosecute the action in compliance with the Nebraska Supreme Court's Case Progression Standards for civil actions in district courts. Billups v. Jade, Inc., 240 Neb. 494, 482 N.W.2d 269 (1992).Pursuant to subsection (5) of this section, it is within the discretion of the district court to dismiss a petition without prejudice for disobedience by the plaintiff of a reasonable order concerning the proceedings in the action. Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990).It is within the sound discretion of the district court to dismiss a petition without prejudice for disobedience by the plaintiff of a reasonable order concerning the proceedings in the action. Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218 N.W.2d 220 (1974).Action may be dismissed without prejudice for failure of plaintiff to appear at pretrial conference. Pressey v. State, 173 Neb. 652, 114 N.W.2d 518 (1962).Failure or refusal of plaintiff to comply with a proper order of court with respect to amendment of petition may be valid ground for dismissal of the action. Bushnell v. Thompson, 133 Neb. 115, 274 N.W. 453 (1937).Court has power to dismiss, with prejudice, for plaintiff's failure to comply with rules or orders. Ferson v. Armour & Co., 109 Neb. 648, 192 N.W. 125 (1923).District court has discretionary power to dismiss petition without prejudice for disobedience of reasonable order. Howell v. Malmgren, 79 Neb. 16, 112 N.W. 313 (1907).5. MiscellaneousNo case addressing the right of a party to dismiss pursuant to this section has required the party to pay costs pursuant to section 25-602. Without a motion for attorney fees pending, such fees would not be a part of the costs to be paid under either this section or section 25-602. Kansas Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865 (2002).Where wife dismissed her suit to dissolve marriage, husband had no right to notice, hearing, or right to attach conditions to dismissal because he did not file a request for affirmative relief on merits of cause. Temporary orders perished with dismissal because nothing remained to invoke jurisdiction. Schroeder v. Schroeder, 223 Neb. 684, 392 N.W.2d 787 (1986).The right of a plaintiff to dismiss is not a matter of judicial grace or discretion, but may be made subject to condition, such as reimbursement of costs, where equity so requires. Dawson v. Papio Nat. Resources Dist., 210 Neb. 100, 313 N.W.2d 242 (1981).District court has jurisdiction to enter judgment of dismissal without prejudice upon sustaining of demurrer. Akins v. Chamberlain, 164 Neb. 428, 82 N.W.2d 632 (1957).Filing of petition for probate of will is not an action. Hill v. Humlicek, 156 Neb. 61, 54 N.W.2d 366 (1952).Practice of entering "nonsuit" upon conclusion of opening statements by counsel to jury is disapproved. Temple v. Cotton Transfer Co., 126 Neb. 287, 253 N.W. 349 (1934).Proceedings under writ ad quod damnum are included in term "action" used in this section, providing for dismissal. Blue River Power Co. v. Hronik, 116 Neb. 405, 217 N.W. 604 (1928).Filing petition for appointment of administrator is not an "action" hereunder. In re Estate of Glover, 104 Neb. 151, 175 N.W. 1017 (1920).Where the only relief is against a nominal defendant who did not appear and upon whom the record fails to show service of process, dismissal of plaintiff's cause of action by court is proper. Elmore v. McMillan, 79 Neb. 621, 113 N.W. 165 (1907).Court cannot adjudge that new action shall not be subject to defense of statute of limitations. Linton v. Cooper, 75 Neb. 167, 106 N.W. 170 (1905).Dismissal does not operate as estoppel; before action is recommenced, court may require payment of costs in first. Yates v. Jones Nat. Bank, 74 Neb. 734, 105 N.W. 287 (1905).Where one of two plaintiffs had judgment in replevin, the other cannot dismiss without defendant's consent. Houck v. Linn, 56 Neb. 743, 77 N.W. 51 (1898).

25-602 Dismissal without prejudice; by plaintiff in vacation; exceptions; payment of costs.

25-602. Dismissal without prejudice; by plaintiff in vacation; exceptions; payment of costs.The plaintiff, in any case pending in the district or Supreme Court of the state, shall, when no counterclaim or setoff has been filed by the opposite party, have the right in the vacation of any of said courts to dismiss his said action without prejudice, upon payment of costs, which dismissal shall be, by the clerk of any of said courts, entered upon the journal and take effect from and after the date thereof. SourceLaws 1867, § 1, p. 51; R.S.1913, § 7655; C.S.1922, § 8599; C.S.1929, § 20-602; R.S.1943, § 25-602.AnnotationsNo case addressing the right of a party to dismiss pursuant to section 25-601 has required the party to pay costs pursuant to this section. Without a motion for attorney fees pending, such fees would not be a part of the costs to be paid under either section 25-601 or this section. Kansas Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865 (2002).Plaintiff had right to dismiss without prejudice to take advantage of amended statute on venue of action. Grosc v. Bredthauer, 136 Neb. 43, 284 N.W. 869 (1939).Dismissal after final submission of case must be by order of court entered on journal. Knaak v. Brown, 115 Neb. 260, 212 N.W. 431 (1927).Filing petition for appointment of administrator is not an "action." In re Estate of Glover, 104 Neb. 151, 175 N.W. 1017 (1920).Section is applicable to election contest; cannot set aside dismissal without notice to contestant, to allow another to intervene. Moore v. Waddington, 69 Neb. 615, 96 N.W. 279 (1903).Dismissal before appearance by defendant ends case. Sims v. Davis, 48 Neb. 720, 67 N.W. 765 (1896).Right to dismiss is not absolute, but depends upon payment of costs. Sheedy v. McMurtry, 44 Neb. 499, 63 N.W. 21 (1895).After case is submitted, power to dismiss without prejudice ceases. Sharp v. Brown, 34 Neb. 406, 51 N.W. 1030 (1892).Where there is no setoff or counterclaim, and costs are paid, court cannot at next term permit intervention. Harris v. Cronk, 17 Neb. 475, 23 N.W. 341 (1885).

25-603 Dismissal without prejudice; trial on setoff or counterclaim.

25-603. Dismissal without prejudice; trial on setoff or counterclaim.In any case where a setoff or counterclaim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed the action or failed to appear. SourceR.S.1867, Code § 431, p. 465; R.S.1913, § 7656; C.S.1922, § 8600; C.S.1929, § 20-603; R.S.1943, § 25-603.AnnotationsA cross-appeal is an appeal perfected by a second party to the action filed subsequent to a prior appeal by an adverse party. Gebhart v. Tri-State G. & T. Assn., 181 Neb. 457, 149 N.W.2d 41 (1967).Where a setoff or counterclaim has been presented, a defendant has the right to proceed to trial on his claim, although plaintiff may have dismissed his action. Giesler v. City of Omaha, 175 Neb. 706, 123 N.W.2d 650 (1963).Dismissal of counterclaim did not prevent plaintiff from proceeding on set-off against same. Feight v. Mathers, 153 Neb. 839, 46 N.W.2d 492 (1951).Where plaintiff in action to foreclose first mortgage dismissed case before final submission, a defendant filing a cross-petition for foreclosure of second mortgage is entitled to trial of his cross-complaint. Plattsmouth Loan & Bldg. Assn. v. Sedlak, 128 Neb. 509, 259 N.W. 367 (1935).Plaintiff has no right to dismiss as to defendants who have pleaded facts entitling them to affirmative relief. Toop v. Palmer, 108 Neb. 850, 189 N.W. 394 (1922).Plaintiff on appeal to district court cannot by dismissing action defeat judgment on set-off below. Hess v. Hess, 78 Neb. 347, 110 N.W. 999 (1907).Right of plaintiff to dismiss without prejudice does not affect the right of defendant to proceed to trial on cross-petition. Adams v. Osgood, 55 Neb. 766, 76 N.W. 446 (1898).

25-701 Joinder of claims.

25-701. Joinder of claims.A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim may join, either as independent or as alternate claims, as many claims, legal or equitable, as the party has against an opposing party. SourceR.S.1867, Code § 87, p. 407; Laws 1867, § 3, p. 71; R.S.1913, § 7657; C.S.1922, § 8601; C.S.1929, § 20-701; R.S.1943, § 25-701; Laws 1998, LB 234, § 3.Annotations1. Same transaction2. Contracts3. Trustees4. Recovery of property5. Other actions1. Same transactionFor application of res judicata a petition in quantum meruit is a restatement of the earlier cause of action on express contract where both petitions are based on same services. Vantage Enterprises, Inc. v. Caldwell, 196 Neb. 671, 244 N.W.2d 678 (1976).Damages for loss of possession of lease and loss of crops could be joined. Dinkel v. Hagedorn, 156 Neb. 419, 56 N.W.2d 464 (1953).In suit to enjoin nuisance, damages may be recovered. Brchan v. The Crete Mills, 155 Neb. 505, 52 N.W.2d 333 (1952).Plaintiff may unite a cause of action growing out of breach of promise to marry, and another in damages for seduction, where both causes arise out of the same transaction. Ryan v. Oswald, 134 Neb. 265, 278 N.W. 508 (1938).Malicious prosecution and false imprisonment arising out of same transaction may be joined. Scott v. Flowers, 60 Neb. 675, 84 N.W. 81 (1900).Causes of action in tort, all growing out of and connected with the same transaction, may be joined. Dinges v. Riggs, 43 Neb. 710, 62 N.W. 74 (1895).2. ContractsAmendment of petition allowed to include action in quantum meruit with action on express contract. Associated Wrecking v. Wiekhorst Bros., 228 Neb. 764, 424 N.W.2d 343 (1988).Agreement to pay principal of debt at one time and interest thereon at another gives rise to separate causes of action which plaintiff may join or not at his pleasure. Peters v. Meyer, 131 Neb. 847, 270 N.W. 312 (1936).Action on quantum meruit may be joined with action on express contract. Stout v. Omaha, L. & B. Ry. Co., 97 Neb. 816, 151 N.W. 295 (1915).Action to foreclose mortgage and on unsecured note cannot be joined. McCague Sav. Bank v. Croft, 80 Neb. 702, 115 N.W. 315 (1908).Action to foreclose mortgage and for deficiency judgment may be joined. Commercial Nat. Bank of Omaha v. Grant, 73 Neb. 435, 103 N.W. 68 (1905).Action to correct official bond and for damages for breach of bond may be joined. Stewart v. Carter, 4 Neb. 564 (1876).3. TrusteesAction to enforce trust agreement under which defendant purchased plaintiff's property at judicial sale, and action based upon alleged invalidity of sale may be joined. Williams v. Lowe, 4 Neb. 382 (1876).4. Recovery of propertyUnder prior law, under subsection (6) of this section, plaintiff may seek rents and profits in an ejectment action. Wicker v. Waldemath, 238 Neb. 515, 471 N.W.2d 731 (1991).Action for conversion of corporate assets may be joined with one for statutory liability of stockholders on account of failure to publish notice of amount of corporate indebtedness. Malm v. Stock, 99 Neb. 374, 156 N.W. 656 (1916).Action by stockholder to enforce lien for money ordered paid by court in setting aside fraudulent conveyance to officers, and for appointment of receiver may be joined. Ponca Mill Co. v. Mikesell, 55 Neb. 98, 75 N.W. 46 (1898).Actions to recover illegal fees and for statutory penalty were joinable. Phoenix Ins. Co. v. King, 52 Neb. 562, 72 N.W. 855 (1897).Ejectment and action for rents and profits may be joined. Fletcher v. Brown, 35 Neb. 660, 53 N.W. 577 (1892); Harrall v. Gray, 12 Neb. 543, 11 N.W. 851 (1882).5. Other actionsCauses of action involving different defendants cannot be joined unless each cause affects all defendants and they have a joint or common liability or interest. Gould v. Orr, 244 Neb. 163, 506 N.W.2d 349 (1993); S.I.D. No. 272 of Douglas County v. Marquardt, 233 Neb. 39, 443 N.W.2d 877 (1989).Under the provisions of sections 25-701 and 25-702, R.R.S.1943, the joinder in a single action of the cause against an uninsured motorist with the insurer carrying the uninsured motorist coverage for the claimant is not permissible. Eich v. State Farm Mut. Automobile Ins. Co., 208 Neb. 714, 305 N.W.2d 621 (1981).If the plaintiff does not choose to unite several causes of action in one petition and the defendant does not successfully require joinder, there is no legal requirement that distinct causes of action be joined in one suit. Suhr v. City of Scribner, 207 Neb. 24, 295 N.W.2d 302 (1980).Plaintiff cannot join an individual cause of action with a representative cause of action. Niklaus v. Abel Construction Co., 164 Neb. 842, 83 N.W.2d 904 (1957).Causes of action under the Fair Labor Standards Act may be united in one action. Archer v. Musick, 147 Neb. 1018, 25 N.W.2d 908 (1947).Cause which might have been joined may be added by amendment. Freeman v. Webb, 21 Neb. 160, 31 N.W. 656 (1887).Actions against the principal and sureties on separate bonds for a default of the official occurring after the execution of the second bond may be properly joined. Holeran v. School Dist. No. 17, Adams County, 10 Neb. 406, 6 N.W. 472 (1880).Damages for breach of covenant and for quiet enjoyment of lease may be joined. Herpolsheimer v. Funke, 1 Neb. Unof. 471, 95 N.W. 688 (1901).

25-702 Repealed. Laws 1998, LB 234, § 12.

25-702. Repealed. Laws 1998, LB 234, § 12.

25-703 Consolidation of actions; motion and notice.

25-703. Consolidation of actions; motion and notice.Whenever two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no such cause be shown, the said several actions shall be consolidated. SourceR.S.1867, Code § 150, p. 416; R.S.1913, § 7659; C.S.1922, § 8603; C.S.1929, § 20-703; R.S.1943, § 25-703.AnnotationsIf the plaintiff does not choose to unite several causes of action in one petition and the defendant does not successfully require joinder, there is no legal requirement that distinct causes of action be joined in one suit. Suhr v. City of Scribner, 207 Neb. 24, 295 N.W.2d 302 (1980).Right of consolidation under this section is dependent upon an application by a defendant. Bruno v. Kramer, 176 Neb. 597, 126 N.W.2d 885 (1964).Two or more actions pending in the same court which might have been joined, may, upon application, be consolidated. Peters v. Meyer, 131 Neb. 847, 270 N.W. 312 (1936).Consolidating actions for trial is inherent power of equity court. Butler v. Secrist, 84 Neb. 85, 120 N.W. 1109 (1909).Where plaintiffs who should have joined bring separate actions, motion to consolidate is proper. Downey v. Coykendall, 81 Neb. 648, 116 N.W. 503 (1908).Actions must be such as might have been joined. Weeks v. Wheeler, 41 Neb. 200, 59 N.W. 554 (1894).Plaintiff is not required to join distinct claims in one action but may be required to consolidate actions. Beck v. Devereaux, 9 Neb. 109, 2 N.W. 365 (1879).Five actions on separate policies and an action to enjoin encumbrances on three more policies may be consolidated. Equitable Life Assur. Soc. v. Wert, 102 F.2d 10 (8th Cir. 1939).

25-704 Consolidation of actions; order.

25-704. Consolidation of actions; order.The order for consolidation may be made by the court or by a judge thereof in vacation. SourceR.S.1867, Code § 151, p. 417; R.S.1913, § 7660; C.S.1922, § 8604; C.S.1929, § 20-704; R.S.1943, § 25-704.

25-705 Joinder; procedures; misjoinder.

25-705. Joinder; procedures; misjoinder.(1) This section applies when an action involves multiple parties or more than one cause of action.(2) A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief and against one or more of the defendants according to their respective liabilities.(3) The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party and may order separate trials or make other orders to prevent delay or prejudice.(4) Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with section 25-311 or 25-320.(5) Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. SourceLaws 1998, LB 234, § 4; Laws 1999, LB 43, § 2; Laws 2000, LB 921, § 4.AnnotationsPursuant to this section, an order that adjudicates the rights and liabilities of fewer than all the parties will constitute a final, appealable order only if the trial court expressly directs the entry of a final judgment as to the party or parties adjudicated and expressly determines that there is no just reason for delay. Scottsdale Ins. Co. v. City of Lincoln, 260 Neb. 372, 617 N.W.2d 806 (2000).Where multiple causes of action are alleged, the resolution of one cause of action constitutes a final, appealable order only if the trial court expressly directs the entry of a final judgment on that one issue and expressly determines that there is no just reason for delay. Chief Indus., Inc. v. Great Northern Ins. Co., 259 Neb. 771, 612 N.W.2d 225 (2000).

25-801 Repealed. Laws 2002, LB 876, § 92.

25-801. Repealed. Laws 2002, LB 876, § 92.

25-801.01 Rules of pleading; Supreme Court; promulgate.

25-801.01. Rules of pleading; Supreme Court; promulgate.(1) By January 1, 2003, the Supreme Court shall have rules of pleading in civil actions promulgated which are not in conflict with the statutes governing such matters.(2) For all civil actions filed on or after January 1, 2003:(a) The rules of pleading promulgated by the Supreme Court shall apply;(b) The plaintiff's initial pleading shall be a petition when that designation is provided elsewhere by statutes. In all other civil actions the plaintiff's initial pleading shall be a complaint;(c) The cross-petition, cross-bill, and cross-suit are abolished. Demurrers to a pleading and special appearances shall not be used. The plea in bar, plea in abatement, and other dilatory pleas shall not be used in civil actions; and(d) All pleadings shall be construed as to do substantial justice. SourceLaws 2002, LB 876, § 1.

25-802 Repealed. Laws 2002, LB 876, § 92.

25-802. Repealed. Laws 2002, LB 876, § 92.

25-803 Repealed. Laws 2002, LB 876, § 92.

25-803. Repealed. Laws 2002, LB 876, § 92.

25-804 Repealed. Laws 2002, LB 876, § 92.

25-804. Repealed. Laws 2002, LB 876, § 92.

25-805 Repealed. Laws 2002, LB 876, § 92.

25-805. Repealed. Laws 2002, LB 876, § 92.

25-806 Repealed. Laws 2002, LB 876, § 92.

25-806. Repealed. Laws 2002, LB 876, § 92.

25-807 Repealed. Laws 2002, LB 876, § 92.

25-807. Repealed. Laws 2002, LB 876, § 92.

25-808 Repealed. Laws 2002, LB 876, § 92.

25-808. Repealed. Laws 2002, LB 876, § 92.

25-809 Repealed. Laws 2002, LB 876, § 92.

25-809. Repealed. Laws 2002, LB 876, § 92.

25-810 Repealed. Laws 2002, LB 876, § 92.

25-810. Repealed. Laws 2002, LB 876, § 92.

25-811 Repealed. Laws 2002, LB 876, § 92.

25-811. Repealed. Laws 2002, LB 876, § 92.

25-812 Repealed. Laws 2002, LB 876, § 92.

25-812. Repealed. Laws 2002, LB 876, § 92.

25-813 Repealed. Laws 2002, LB 876, § 92.

25-813. Repealed. Laws 2002, LB 876, § 92.

25-814 Repealed. Laws 2002, LB 876, § 92.

25-814. Repealed. Laws 2002, LB 876, § 92.

25-815 Repealed. Laws 2002, LB 876, § 92.

25-815. Repealed. Laws 2002, LB 876, § 92.

25-816 Repealed. Laws 2002, LB 876, § 92.

25-816. Repealed. Laws 2002, LB 876, § 92.

25-817 Repealed. Laws 2002, LB 876, § 92.

25-817. Repealed. Laws 2002, LB 876, § 92.

25-818 Repealed. Laws 2002, LB 876, § 92.

25-818. Repealed. Laws 2002, LB 876, § 92.

25-819 Repealed. Laws 2002, LB 876, § 92.

25-819. Repealed. Laws 2002, LB 876, § 92.

25-820 Repealed. Laws 2002, LB 876, § 92.

25-820. Repealed. Laws 2002, LB 876, § 92.

25-821 Repealed. Laws 2002, LB 876, § 92.

25-821. Repealed. Laws 2002, LB 876, § 92.

25-822 Repealed. Laws 2002, LB 876, § 92.

25-822. Repealed. Laws 2002, LB 876, § 92.

25-823 Repealed. Laws 2002, LB 876, § 92.

25-823. Repealed. Laws 2002, LB 876, § 92.

25-824 Pleadings; use in other actions; frivolous pleading; effect; effect of signature; frivolous actions; award of attorney's fees and costs.

25-824. Pleadings; use in other actions; frivolous pleading; effect; effect of signature; frivolous actions; award of attorney's fees and costs.(1) A pleading shall not be used against a party in any criminal prosecution or action or proceeding for a penalty or forfeiture as proof of a fact admitted or alleged in such pleading. If a pleading is frivolous or made in bad faith, it may be stricken. The signature of a party or of an attorney on a pleading constitutes a certificate by him or her that he or she has read the pleading; that to the best of his or her knowledge, information, and belief there is good ground for the filing of the pleading; and that it is not interposed for delay.(2) Except as provided in subsections (5) and (6) of this section, in any civil action commenced or appealed in any court of record in this state, the court shall award as part of its judgment and in addition to any other costs otherwise assessed reasonable attorney's fees and court costs against any attorney or party who has brought or defended a civil action that alleges a claim or defense which a court determines is frivolous or made in bad faith.(3) When a court determines reasonable attorney's fees or costs should be assessed, it shall allocate the payment of such fees or costs among the offending attorneys and parties as it determines most just and may charge such amount or portion thereof to any offending attorney or party.(4) The court shall assess attorney's fees and costs if, upon the motion of any party or the court itself, the court finds that an attorney or party brought or defended an action or any part of an action that was frivolous or that the action or any part of the action was interposed solely for delay or harassment. If the court finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct, including, but not limited to, abuses of civil discovery procedures, the court shall assess attorney's fees and costs.(5) No attorney's fees or costs shall be assessed if a claim or defense was asserted by an attorney or party in a good faith attempt to establish a new theory of law in this state or if, after filing suit, a voluntary dismissal is filed as to any claim or action within a reasonable time after the attorney or party filing the dismissal knew or reasonably should have known that he or she would not prevail on such claim or action.(6) No party who is appearing without an attorney shall be assessed attorney's fees unless the court finds that the party clearly knew or reasonably should have known that his or her action or defense or any part of such action or defense was frivolous or made in bad faith, except that this subsection shall not apply to any situation in which an attorney licensed to practice law in the state is appearing without an attorney, in which case he or she shall be held to the standards for attorneys prescribed in this section. SourceR.S.1867, Code § 113, p. 412; R.S.1913, § 7684; Laws 1915, c. 144, § 1, p. 313; C.S.1922, § 8628; C.S.1929, § 20-824; R.S.1943, § 25-824; Laws 1969, c. 182, § 1, p. 774; Laws 1983, LB 277, § 1; Laws 1987, LB 261, § 1.Annotations1. Verification2. Frivolous or bad faith pleading3. Miscellaneous1. VerificationThe failure of a party to sign an answer is waived if not raised before trial. Schaneman v. Wright, 238 Neb. 309, 470 N.W.2d 566 (1991).Want of verification is not a jurisdictional defect. Northup v. Bathrick, 80 Neb. 36, 113 N.W. 808 (1907).Verification is not necessary to petition in error. Newlove v. Woodward, 9 Neb. 502, 4 N.W. 237 (1880).Failure to verify is not ground for dismissal. Fritz v. Barnes, 6 Neb. 435 (1877).Verification on belief of affiant is sufficient. Harden v. Atchison & N. R. R. Co., 4 Neb. 521 (1876).Agent or attorney may make verification. Cropsey v. Wiggerhorn, 3 Neb. 108 (1873).2. Frivolous or bad faith pleadingA frivolous action is one in which a litigant asserts a legal position wholly without merit, that is, without rational argument based on law and evidence to support the litigant's position. Cornett v. City of Omaha Police & Fire Ret. Sys., 266 Neb. 216, 664 N.W.2d 23 (2003).The term frivolous, as used in subsection (2) of this section, connotes an improper motive or legal position so wholly without merit as to be ridiculous. Cornett v. City of Omaha Police & Fire Ret. Sys., 266 Neb. 216, 664 N.W.2d 23 (2003).The term "frivolous" as used in subsection (2) of this section connotes an improper motive or legal position so wholly without merit as to be ridiculous. Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002)."Frivolous" means an attempt to relitigate the same issues resolved in prior proceedings with the same parties or a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position. Cox v. Civil Serv. Comm. of Douglas Cty., 259 Neb. 1013, 614 N.W.2d 273 (2000).Although appellant's burden of proof on appeal was difficult, the appeal was not considered frivolous, and therefore, there was no basis for an award of attorney fees pursuant to this section because appellant did not attempt to relitigate the same issues resolved in prior proceedings with the same parties and appellant's argument was not wholly without merit. Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998).A party forced to defend a frivolous action may recover his or her attorney fees; a frivolous action is one in which a litigant asserts a legal position wholly without merit, that is, without rational argument based on law and evidence. Zimmerman v. FirsTier Bank, 255 Neb. 410, 585 N.W.2d 445 (1998).For the purposes of subsection (2) of this section, "frivolousness" is defined as being "a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position". Foiles v. Midwest Street Rod Assn. of Omaha, Inc., 254 Neb. 552, 578 N.W.2d 418 (1998).Pursuant to subsection (2) of this section, in determining sanctions, the court uses its discretion in determining the appropriate cost or fee permitted by this section. Malicky v. Heyen, 251 Neb. 891, 560 N.W.2d 773 (1997).As used in subsection (2) of this section, "frivolous" means a legal position wholly without merit, that is, without rational argument based on law and evidence to support litigant's position in the lawsuit. Surratt v. Watts Trucking, 249 Neb. 35, 541 N.W.2d 41 (1995).For the purpose of this section, "frivolous" is defined as being a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit. First Nat. Bank in Morrill v. Union Ins. Co., 246 Neb. 636, 522 N.W.2d 168 (1994).As used in subsection (2) of this section concerning allowance of an attorney fee, "frivolous" means a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit. Nebraska Pub. Emp. v. City of Omaha, 244 Neb. 328, 506 N.W.2d 686 (1993).A legal position is frivolous if the position is wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit. Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (1993).Under subsection (2) of this section, the Supreme Court applies an abuse-of-discretion standard to district court decisions concerning the imposition of sanctions for frivolous lawsuits. Millard v. Hyplains Dressed Beef, 237 Neb. 907, 468 N.W.2d 124 (1991).The term "frivolous," as used in subsection (2) of this section, connotes an improper motive or a legal position so wholly without merit as to be ridiculous. Behrens v. American Stores Packing Co., 236 Neb. 279, 460 N.W.2d 671 (1990).The attorney fees generated in defending against a frivolous appeal are authorized under subsection (2) of this section regardless of the fact that the fees were not requested or ordered in the trial court. First Nat. Bank v. Chadron Energy Corp., 236 Neb. 199, 459 N.W.2d 736 (1990).The term "frivolous," as used in this section, connotes an improper motive or legal position wholly without merit. Peterson v. Don Peterson & Assoc. Ins. Agency, 234 Neb. 651, 452 N.W.2d 517 (1990).A city's defense to a hospital's action to recover for services was frivolous where the hospital sought to recover for services rendered to indigent prisoners and the Nebraska Supreme Court had held that the city was liable in an earlier suit. Lutheran Medical Center v. City of Omaha, 229 Neb. 802, 429 N.W.2d 347 (1988).All doubts as to whether an action is frivolous should be resolved in favor of the petitioner. Sanctions should not be imposed except in the clearest cases. Shanks v. Johnson Abstract & Title, 225 Neb. 649, 407 N.W.2d 743 (1987).This section is authority for granting fees to a party defendant when the party initiating the court proceeding does so vexatiously. Stratman v. Hagen, 221 Neb. 157, 376 N.W.2d 3 (1985).But for the fact that the amendment to this section permitting the assessment of reasonable expenses, including attorney fees, to attorneys is new, a portion of the attorney fee awarded to the defendants would have been taxed to the plaintiffs' attorneys. Graham v. Waggener, 219 Neb. 907, 367 N.W.2d 707 (1985).The trial court did not abuse its discretion in denying attorney fees under subsection (2) of this section even though the plaintiff's suit was wrongly commenced, because the suit was not frivolous. Pipe and Piling Supplies (U.S.A.) Ltd. v. Betterman & Katelman, 8 Neb. App. 475, 596 N.W.2d 24 (1999).The term "frivolous", as used in subsection (2) of this section, means a legal position wholly without merit, that is, without a rational argument based on law and evidence to support the litigant's position in the lawsuit. Janet K. v. Kevin B., 5 Neb. App. 169, 556 N.W.2d 270 (1996).3. MiscellaneousA motion for attorney fees pursuant to this section must be made prior to the judgment of the court in which the attorney's services were rendered. When a motion for attorney fees is made prior to judgment, the judgment will not become final and appealable until the court has ruled upon the motion. Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002).In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002).An award of fees under this section may be taxed against an offending attorney. Cedars Corp. v. Sun Valley Dev. Co., 253 Neb. 999, 573 N.W.2d 467 (1998).On appeal, a trial court's decision allowing or disallowing an attorney fee will be upheld in the absence of the trial court's abuse of discretion. Lincoln Lumber Co. v. Fowler, 248 Neb. 221, 533 N.W.2d 898 (1995).On appeal, a trial court's decision allowing or disallowing attorney fees will be upheld in the absence of the trial court's abuse of discretion. Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (1993).Under code, an answer, except so far as statements therein may involve admissions against interest, has been wholly deprived of the characteristics of evidence. Marshall v. Rowe, 126 Neb. 817, 254 N.W. 480 (1934).On appeal, a trial court's decision allowing or disallowing attorney fees will be upheld in the absence of the trial court's abuse of discretion. Janet K. v. Kevin B., 5 Neb. App. 169, 556 N.W.2d 270 (1996).

25-824.01 Frivolous actions; attorney's fees; costs; determination of amount.

25-824.01. Frivolous actions; attorney's fees; costs; determination of amount.In determining the amount of a cost or an attorney's fee award pursuant to subsection (2) of section 25-824, the court shall exercise its sound discretion. When granting an award of costs and attorney's fees, the court shall specifically set forth the reasons for such award and shall, in determining whether to assess attorney's fees and costs and the amount to be assessed against offending attorneys and parties, consider the following factors, including, but not limited to: (1) The extent to which any effort was made to determine the validity of any action or claim before the action was asserted; (2) the extent of any effort made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses that have been found not to be valid; (3) the availability of facts to assist the party to determine the validity of a claim or defense; (4) the relative financial position of the parties involved; (5) whether or not the action was prosecuted or defended in whole or in part in bad faith; (6) whether or not issues of fact, determinative of the validity of a party's claim or defense, were reasonably in conflict; (7) the extent to which the party prevailed with respect to the amount of and number of claims in controversy; (8) the amount or conditions of any offer of judgment or settlement in relation to the amount or conditions of the ultimate relief granted by the court; (9) the extent to which a reasonable effort was made to determine prior to the time of filing of a claim that all parties sued or joined were proper parties owing a legally defined duty to the plaintiff or defendant; and (10) the extent of any effort made after the commencement of an action to reduce the number of parties in the action. SourceLaws 1987, LB 261, § 2.

25-824.02 Frivolous actions; actual attorney's fee; effect of award; stipulations authorized.

25-824.02. Frivolous actions; actual attorney's fee; effect of award; stipulations authorized.Nothing in sections 25-824 to 25-824.03 shall be construed to prevent an attorney and his or her client from negotiating the actual fee which the client is to pay the attorney. Nothing in such sections shall be intended to limit the authority of the court to approve written stipulations filed with the court or oral stipulations in open court agreeing to no award of attorney's fees or costs or an award of attorney's fees or costs in a manner different than that provided in such sections. SourceLaws 1987, LB 261, § 3.

25-824.03 Frivolous actions; applicability of sections.

25-824.03. Frivolous actions; applicability of sections.Sections 25-824 to 25-824.03 shall apply unless attorney's fees are otherwise specifically provided by law, in which case the provision allowing the greater award shall prevail. SourceLaws 1987, LB 261, § 4.

25-825 Repealed. Laws 1969, c. 182, § 2.

25-825. Repealed. Laws 1969, c. 182, § 2.

25-826 Repealed. Laws 1969, c. 182, § 2.

25-826. Repealed. Laws 1969, c. 182, § 2.

25-827 Repealed. Laws 1969, c. 182, § 2.

25-827. Repealed. Laws 1969, c. 182, § 2.

25-828 Repealed. Laws 1969, c. 182, § 2.

25-828. Repealed. Laws 1969, c. 182, § 2.

25-829 Repealed. Laws 1969, c. 182, § 2.

25-829. Repealed. Laws 1969, c. 182, § 2.

25-830 Repealed. Laws 1969, c. 182, § 2.

25-830. Repealed. Laws 1969, c. 182, § 2.

25-831 Repealed. Laws 1969, c. 182, § 2.

25-831. Repealed. Laws 1969, c. 182, § 2.

25-832 Repealed. Laws 2002, LB 876, § 92.

25-832. Repealed. Laws 2002, LB 876, § 92.

25-833 Repealed. Laws 2002, LB 876, § 92.

25-833. Repealed. Laws 2002, LB 876, § 92.

25-834 Repealed. Laws 2002, LB 876, § 92.

25-834. Repealed. Laws 2002, LB 876, § 92.

25-835 Repealed. Laws 2002, LB 876, § 92.

25-835. Repealed. Laws 2002, LB 876, § 92.

25-836 Repealed. Laws 2002, LB 876, § 92.

25-836. Repealed. Laws 2002, LB 876, § 92.

25-837 Repealed. Laws 2002, LB 876, § 92.

25-837. Repealed. Laws 2002, LB 876, § 92.

25-838 Repealed. Laws 2002, LB 876, § 92.

25-838. Repealed. Laws 2002, LB 876, § 92.

25-839 Libel or slander; how sufficiently pleaded; burden of proof.

25-839. Libel or slander; how sufficiently pleaded; burden of proof.In an action for a libel or slander it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be denied, the plaintiff must prove on the trial the facts, showing that the defamatory matter was published or spoken of him. SourceR.S.1867, Code § 131, p. 414; R.S.1913, § 7699; C.S.1922, § 8643; C.S.1929, § 20-839; R.S.1943, § 25-839.AnnotationsIn an action for a libel or slander it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation is denied, the plaintiff must prove on the trial the facts, showing that the defamatory matter was published or spoken of him. White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d 27 (1988).Words to be slanderous per se must not only charge an offense which is actionable, but also the nature thereof. Nelson v. Rosenberg, 135 Neb. 34, 280 N.W. 229 (1938).Writing libelous per se defined. Bigley v. National Fid. & Casualty Co., 94 Neb. 813, 144 N.W. 810 (1913).Where publication is not libelous per se, special damages must be pleaded. Callfas v. World Pub. Co., 93 Neb. 108, 139 N.W. 830 (1913).It is not necessary in action for slander to allege the name of the person to whom the words were spoken. Fitzgerald v. Young, 89 Neb. 693, 132 N.W. 127 (1911).This section abrogates common law rule requiring facts and circumstances to be stated, connecting plaintiff with publication. Sheibley v. Huse, 75 Neb. 811, 106 N.W. 1028 (1906).Words imputing indictable offense are actionable per se. Herzog v. Campbell, 47 Neb. 370, 66 N.W. 424 (1896).Words should be given their natural and ordinary meaning. World Pub. Co. v. Mullen, 43 Neb. 126, 61 N.W. 108 (1894).Words, which in effect charge embezzlement, are libelous per se and special damage need not be alleged. Pokrok Zapadu Pub. Co. v. Zizkovsky, 42 Neb. 64, 60 N.W. 358 (1894).

25-840 Libel or slander; truth as defense; effect of actual malice.

25-840. Libel or slander; truth as defense; effect of actual malice.In the actions mentioned in section 25-839, the defendant may allege the truth of the matter charged as defamatory, prove the same and any mitigating circumstances to reduce the amount of damages, or prove either. The truth in itself and alone shall be a complete defense unless it shall be proved by the plaintiff that the publication was made with actual malice. Actual malice shall not be inferred or presumed from publication. SourceR.S.1867, Code § 132, p. 414; R.S.1913, § 7700; C.S.1922, § 8644; C.S.1929, § 20-840; R.S.1943, § 25-840; Laws 1957, c. 83, § 1, p. 329. AnnotationsIn an action for libel or slander, a defendant may allege the truth of the matter charged as defamatory. The truth in itself and alone shall be a complete defense unless it shall be proved by the plaintiff that the publication was made with actual malice. Actual malice shall not be inferred or presumed from publication. White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d 27 (1988).As a general rule, in a case of alleged libel or slander, truth is a complete defense absent proof of actual malice. Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298 (1987).For failure to allege, as ordered by the court, whether or not publication was malicious and whether defendant gave notice and requested correction, the petition was properly dismissed. Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218 N.W.2d 220 (1974).Plaintiff has burden of proving actual malice. Whitcomb v. Nebraska State Education Assn., 184 Neb. 31, 165 N.W.2d 99 (1969).Defendant cannot prove truth of defamatory charge under general denial. Murten v. Garbe, 93 Neb. 589, 141 N.W. 146 (1913).In action for libel, truth is not complete defense; good motives, etc., are necessary. Sheibley v. Fales, 81 Neb. 795, 116 N.W. 1035 (1908); Pokrok Zapadu Pub. Co. v. Zizkovsky, 42 Neb. 64, 60 N.W. 358 (1894).Insofar as slander is concerned, truth is complete defense. Larson v. Cox, 68 Neb. 44, 93 N.W. 1011 (1903).

25-840.01 Libel; invasion of privacy; damages; retraction; effect.

25-840.01. Libel; invasion of privacy; damages; retraction; effect.(1) In an action for damages for the publication of a libel or for invasion of privacy as provided by section 20-204 by any medium, the plaintiff shall recover no more than special damages unless correction was requested as herein provided and was not published. Within twenty days after knowledge of the publication, plaintiff shall have given each defendant a notice by certified or registered mail specifying the statements claimed to be libelous or to have invaded privacy as provided by section 20-204 and specifically requesting correction. Publication of a correction shall be made within three weeks after receipt of the request. It shall be made in substantially as conspicuous a manner as the original publication about which complaint was made. A correction, published prior to receipt of a request therefor, shall have the same force and effect as if published after such request. The term special damages, as used in this section, shall include only such damages as plaintiff alleges and proves were suffered in respect to his or her property, business, trade, profession, or occupation as the direct and proximate result of the defendant's publication.(2) This section shall not apply if it is alleged and proved that the publication was prompted by actual malice, and actual malice shall not be inferred or presumed from the publication. SourceLaws 1957, c. 83, § 2, p. 329; Laws 1979, LB 394, § 12; Laws 1987, LB 93, § 8. AnnotationsFor failure to allege, as ordered by the court, whether or not publication was malicious and whether defendant gave notice and requested correction, the petition was properly dismissed. Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218 N.W.2d 220 (1974).Where no attempt to comply with this section made, assumption is that cause of action predicated on actual malice. Whitcomb v. Nebraska State Education Assn., 184 Neb. 31, 165 N.W.2d 99 (1969).

25-840.02 Broadcasting stations; liability.

25-840.02. Broadcasting stations; liability.(1) The owner, licensee, or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee, or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by any person other than such owner, licensee, or operator, or an agent or employee thereof, unless it is alleged and proved by the complaining party that such owner, licensee, or operator, or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.(2) In no event shall any owner, licensee, or operator, or an agent or employee thereof, be held liable for any damages for any defamatory statement uttered over the facilities of the visual or sound radio broadcasting station or network by any person other than such owner, licensee, or operator, or an agent or employee thereof, by, on behalf of, or against any candidate for public office.(3) In any action for damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only such actual damages as such party has alleged and proved. SourceLaws 1949, c. 316, § 1, p. 1037; R.S.1943, (1999), § 86-601; Laws 2002, LB 1105, § 420. Cross ReferencesLimitation on cause of action, see section 20-209.

25-841 Repealed. Laws 2002, LB 876, § 92.

25-841. Repealed. Laws 2002, LB 876, § 92.

25-842 Repealed. Laws 2002, LB 876, § 92.

25-842. Repealed. Laws 2002, LB 876, § 92.

25-843 Repealed. Laws 2002, LB 876, § 92.

25-843. Repealed. Laws 2002, LB 876, § 92.

25-844 Repealed. Laws 2002, LB 876, § 92.

25-844. Repealed. Laws 2002, LB 876, § 92.

25-845 Repealed. Laws 2002, LB 876, § 92.

25-845. Repealed. Laws 2002, LB 876, § 92.

25-846 Repealed. Laws 2002, LB 876, § 92.

25-846. Repealed. Laws 2002, LB 876, § 92.

25-847 Repealed. Laws 2002, LB 876, § 92.

25-847. Repealed. Laws 2002, LB 876, § 92.

25-848 Repealed. Laws 2002, LB 876, § 92.

25-848. Repealed. Laws 2002, LB 876, § 92.

25-849 Repealed. Laws 2002, LB 876, § 92.

25-849. Repealed. Laws 2002, LB 876, § 92.

25-850 Repealed. Laws 2002, LB 876, § 92.

25-850. Repealed. Laws 2002, LB 876, § 92.

25-851 Repealed. Laws 2002, LB 876, § 92.

25-851. Repealed. Laws 2002, LB 876, § 92.

25-852 Repealed. Laws 2002, LB 876, § 92.

25-852. Repealed. Laws 2002, LB 876, § 92.

25-853 Repealed. Laws 2002, LB 876, § 92.

25-853. Repealed. Laws 2002, LB 876, § 92.

25-854 Repealed. Laws 2002, LB 876, § 92.

25-854. Repealed. Laws 2002, LB 876, § 92.

25-855 Repealed. Laws 2002, LB 876, § 92.

25-855. Repealed. Laws 2002, LB 876, § 92.

25-856 Repealed. Laws 2002, LB 876, § 92.

25-856. Repealed. Laws 2002, LB 876, § 92.

25-901 Offer of judgment before trial; procedure; effect.

25-901. Offer of judgment before trial; procedure; effect.The defendant in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff, or his attorney, an offer in writing to allow judgment to be taken against him for the sum specified therein. If the plaintiff accepts the offer and gives notice thereof to the defendant or his attorney, within five days after the offer was served, the offer, and an affidavit that the notice of acceptance was delivered in the time limited, may be filed by the plaintiff, or the defendant may file the acceptance, with a copy of the offer verified by affidavit; and, in either case, the offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly. If the notice of acceptance be not given in the period limited the offer shall be deemed withdrawn, and shall not be given in evidence, or mentioned on the trial. If the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant's cost from the time of the offer. SourceR.S.1867, Code § 565, p. 493; R.S.1913, § 7717; C.S.1922, § 8661; C.S.1929, § 20-901; R.S.1943, § 25-901.Annotations1. Offer and acceptance2. Miscellaneous1. Offer and acceptanceRead together, this section and section 44-359 prohibit an award of attorney fees to a plaintiff, in a suit against the plaintiff's insurer, who rejects an offer to allow judgment and later fails to recover more than the amount offered. Young v. Midwest Fam. Mut. Ins. Co., 272 Neb. 385, 722 N.W.2d 13 (2006).This section applies to offers to allow judgment against a defendant, which, under the plain meaning of this section, are not equivalent to settlement offers. Young v. Midwest Fam. Mut. Ins. Co., 272 Neb. 385, 722 N.W.2d 13 (2006).For an insurer to take advantage of the protection of this section, the insurer must expressly comply with the requirement that an offer to allow judgment be made. Young v. Midwest Fam. Mut. Ins. Co., 272 Neb. 385, 722 N.W.2d 13 (2006).An offer to confess judgment, and its acceptance pursuant to section 25-901, require the entry of a judgment according to the offer and acceptance. Jaixen v. Turner, 204 Neb. 123, 281 N.W.2d 404 (1979).If notice of acceptance is not given within five days, offer may be withdrawn; judgment on later acceptance vacated. Becker v. Breen, 68 Neb. 379, 94 N.W. 614 (1903).Plaintiff should be taxed with all costs from time of offer. Wachsmuth v. Orient Ins. Co., 49 Neb. 590, 68 N.W. 935 (1896).Offer must be made in open court or served on plaintiff though filed. Rose v. Peck, 18 Neb. 529, 26 N.W. 363 (1886).2. MiscellaneousSettlement agreement at former trial did not establish liability and as it constituted a question of fact was not binding as law of case in subsequent trial on the merits. System Meat Co. v. Stewart, 190 Neb. 682, 211 N.W.2d 902 (1973).Tender by insurance company of a sum of money, accompanied by demand for execution of receipt and formal release and return of policy, was not absolute and unconditional. Baird v. Union Mutual Life Ins. Co., 104 Neb. 352, 177 N.W. 156 (1920).Negotiations for settlement between litigants cannot be disclosed to jury. Tankersley v. Lincoln Traction Co., 101 Neb. 578, 163 N.W. 850 (1917).Section is not applicable to proceedings in ad quod damnum. Johnson v. Sutliff, 17 Neb. 423, 23 N.W. 9 (1885).

25-902 Offer of judgment; no cause for continuance or postponement.

25-902. Offer of judgment; no cause for continuance or postponement.The making of an offer pursuant to the provisions contained in section 25-901 shall not be a cause for a continuance of an action, or a postponement of a trial. SourceR.S.1867, Code § 566, p. 493; R.S.1913, § 7718; C.S.1922, § 8662; C.S.1929, § 20-902; R.S.1943, § 25-902.

25-903 Submitting controversy without action; procedure.

25-903. Submitting controversy without action; procedure.Parties to a question which might be the subject of a civil action may without action agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The court shall, thereupon, hear and determine the case, and render judgment as if an action were pending. SourceR.S.1867, Code § 567, p. 493; R.S.1913, § 7719; C.S.1922, § 8663; C.S.1929, § 20-903; R.S.1943, § 25-903. Cross ReferencesFor declaratory judgments, see sections 25-21,149 to 25-21,164. AnnotationsIf interests are adverse, case is not moot, though it is friendly suit. State v. First Catholic Church of Lincoln, 88 Neb. 2, 128 N.W. 657 (1910).It is the duty of Supreme Court to act when controversy is submitted under this section. In re Groff, 21 Neb. 647, 33 N.W. 426 (1887).

25-904 Record; what constitutes.

25-904. Record; what constitutes.The case, the submission and the judgment shall constitute the record. SourceR.S.1867, Code § 568, p. 494; R.S.1913, § 7720; C.S.1922, § 8664; C.S.1929, § 20-904; R.S.1943, § 25-904.

25-905 Judgment; effect.

25-905. Judgment; effect.The judgment shall be with costs, may be enforced, and shall be subject to reversal, in the same manner as if it had been rendered in an action, unless otherwise provided in the submission. SourceR.S.1867, Code § 569, p. 494; R.S.1913, § 7721; C.S.1922, § 8665; C.S.1929, § 20-905; R.S.1943, § 25-905.

25-906 Confession of judgment after action brought; effect.

25-906. Confession of judgment after action brought; effect.After an action for the recovery of money is brought, the defendant may offer in court to confess judgment for part of the amount claimed, or part of the causes involved in the action. Whereupon, if the plaintiff, being present, refuses to accept such confession of judgment in full of his demands against the defendant in the action, or, having had such notice that the offer would be made, of its amount and of the time of making it, as the court shall deem reasonable, fail to attend, and on the trial do not recover more than was so offered to be confessed, such plaintiff shall pay all the costs of the defendant incurred after the offer. The offer shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor be given in evidence upon the trial. SourceR.S.1867, Code § 570, p. 494; R.S.1913, § 7722; C.S.1922, § 8666; C.S.1929, § 20-906; R.S.1943, § 25-906.AnnotationsIn order that a confession of judgment may be binding on the plaintiff, it is essential that he, either expressly or impliedly, assent thereto; if it is made without his request, knowledge, or consent, and entered at the instance of the debtor alone, it will have no validity unless the creditor ratifies or accepts it. In re Estate of Redpath, 224 Neb. 845, 402 N.W.2d 648 (1987).No compliance was had with requirements for confession of judgment. James v. Hogan, 154 Neb. 306, 47 N.W.2d 847 (1951).An offer to confess judgment, incorporated in an answer, should not be referred to in the instructions. Hammang v. Chicago & N.W. Ry. Co., 107 Neb. 684, 186 N.W. 991 (1922).Offer must be made in open court or served on plaintiff though filed. Rose v. Peck, 18 Neb. 529, 26 N.W. 363 (1886).This section is not applicable to proceedings in ad quod damnum. Johnson v. Sutliff, 17 Neb. 423, 23 N.W. 9 (1885).

25-907 Confession of judgment before action brought; effect.

25-907. Confession of judgment before action brought; effect.Before an action for the recovery of money is brought against any person, he may go into the court of the county of his residence, or of that in which the person having the cause of action resides, which would have jurisdiction of the action, and offer to confess judgment in favor of such person for a specified sum on such cause of action. Whereupon, if such person, having had such notice that the offer would be made, of its amount and of the time and place of making it, as the court shall deem reasonable, does not attend to accept the confession, or attending, refuses to accept it, and should afterward commence an action upon such cause, and not recover more than the amount so offered to be confessed, he shall pay all the costs of the action; and on the trial thereof, the offer shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor be given in evidence. SourceR.S.1867, Code § 571, p. 494; R.S.1913, § 7723; C.S.1922, § 8667; C.S.1929, § 20-907; R.S.1943, § 25-907.

25-908 Motion, defined.

25-908. Motion, defined.A motion is an application for an order addressed to the court or a judge in vacation, by any party to a suit or proceeding, or one interested therein. SourceR.S.1867, Code § 572, p. 495; R.S.1913, § 7724; C.S.1922, § 8668; C.S.1929, § 20-908; R.S.1943, § 25-908.AnnotationsApplication or motion to set aside order vacating decree of divorce, and to reinstate decree, was after the term and required notice. Carmony v. Carmony, 112 Neb. 651, 200 N.W. 830 (1924).Application for deficiency judgment may be made by motion. Crary v. Buck, 1 Neb. Unof. 596, 95 N.W. 839 (1901).

25-909 Motion; several objects authorized.

25-909. Motion; several objects authorized.Several objects may be included in the same motion, if they all grow out of or are connected with the action or proceeding in which it is made. SourceR.S.1867, Code § 573, p. 495; R.S.1913, § 7725; C.S.1922, § 8669; C.S.1929, § 20-909; R.S.1943, § 25-909. Cross ReferencesMotion for a directed verdict, see sections 25-1315.01 to 25-1315.03.Motion for new trial, see section 25-1315.02 et seq.

25-910 Notice of motion; contents.

25-910. Notice of motion; contents.Where notice of a motion is required, it must be in writing and shall state (1) the names of the parties to the action or proceeding in which it is to be made, (2) the name of the court or judge before whom it is to be made, (3) the place where and the day on which it will be heard, (4) the nature and terms of the order or orders to be applied for, and (5) if affidavits are to be used on the hearing, the notice shall state that fact. It shall be served a reasonable time before the hearing. SourceR.S.1867, Code § 574, p. 495; R.S.1913, § 7726; C.S.1922, § 8670; C.S.1929, § 20-910; R.S.1943, § 25-910.AnnotationsOrders for alimony may be modified for good cause shown but nunc pro tunc decree entered without notice is a nullity. Howard v. Howard, 196 Neb. 351, 242 N.W.2d 884 (1976).Application or motion to set aside order vacating decree of divorce, and to reinstate decree, was after the term and required notice. Carmony v. Carmony, 112 Neb. 651, 200 N.W. 830 (1924).Notice not under seal of court is process in nature of summons. Fowler v. Brown, 51 Neb. 414, 71 N.W. 54 (1897).What is reasonable notice stated. Sterling Mfg. Co. v. Hough, 49 Neb. 618, 68 N.W. 1019 (1896).

25-911 Repealed. Laws 1961, c. 284, § 1.

25-911. Repealed. Laws 1961, c. 284, § 1.

25-912 Repealed. Laws 1961, c. 284, § 1.

25-912. Repealed. Laws 1961, c. 284, § 1.

25-913 Motion to strike pleadings and papers from files; notice, when.

25-913. Motion to strike pleadings and papers from files; notice, when.Motions to strike pleadings and papers from the files may be made with or without notice, as the court or judge shall direct. SourceR.S.1867, Code § 577, p. 495; R.S.1913, § 7729; C.S.1922, § 8673; C.S.1929, § 20-913; R.S.1943, § 25-913.AnnotationsMotions to strike filed under this section are aimed at petitions filed in violation of a court's order or a rule of practice or procedure prescribed either by statute or by the court in which the petition is filed. Motions to strike under this section may also be filed when a party declines to amend the petition or refuses to follow the court's orders. Nuss ex rel. Estate of Nuss v. Alexander, 257 Neb. 36, 595 N.W.2d 263 (1999).A motion to strike a petition is not a substitute for a demurrer or a motion to strike or make more definite and certain, and may be directed only to a petition filed in violation of a court's order or a rule of practice or procedure prescribed either by statute or by the court in which the petition is filed. Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991).Petition may be stricken on motion if fatal defects extend to the pleading as a whole, or if the plaintiff, in filing it, ignored an order of court. Ferson v. Armour & Co., 109 Neb. 648, 192 N.W. 125 (1923).This section, as construed by the Supreme Court of Nebraska, applies in actions at law in federal courts, and petition failing to state cause of action may be stricken on motion. Jack v. Armour & Co., 291 F. 741 (8th Cir. 1923).

25-914 Order, defined.

25-914. Order, defined.Every direction of a court or judge, made or entered in writing and not included in a judgment, is an order. SourceR.S.1867, Code § 578, p. 495; R.S.1913, § 7730; C.S.1922, § 8674; C.S.1929, § 20-914; R.S.1943, § 25-914.

25-915 Orders out of court; journal entry.

25-915. Orders out of court; journal entry.Orders made out of court shall be forthwith entered by the clerk in the journal of the court in the same manner as orders made in term. SourceR.S.1867, Code § 579, p. 495; R.S.1913, § 7731; C.S.1922, § 8675; C.S.1929, § 20-915; R.S.1943, § 25-915.

25-1001 Attachment; grounds.

25-1001. Attachment; grounds.The plaintiff, in a civil action for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defendant when the defendant or one of several defendants (1) has absconded with the intent to defraud his or her creditors; (2) has left the county of his or her residence to avoid the service of a summons; (3) so conceals himself or herself that a summons cannot be served upon him or her; (4) is about to remove his or her property, or a part thereof, out of the county in which the property is located, with the intent to defraud his or her creditors; (5) is about to convert his or her property, or a part thereof, into money, for the purpose of placing it beyond the reach of his or her creditors; (6) has property, or rights, in action, which he or she conceals; (7) has assigned, removed or disposed of, or is about to dispose of his or her property, or a part thereof, with the intent to defraud his or her creditors; or (8) fraudulently contracted the debt or incurred the obligation for which suit is about to be or has been brought. The grounds for attachment on a claim before it is due are set forth in section 25-1049. SourceR.S.1867, Code § 198, p. 424; Laws 1911, c. 168, § 1, p. 544; R.S.1913, § 7732; Laws 1915, c. 145, § 1, p. 314; C.S.1922, § 8676; C.S.1929, § 20-1001; R.S.1943, § 25-1001; Laws 1980, LB 597, § 1.Annotations1. Nonresident2. Absconded3. Removal of property4. Fraudulent conveyance5. Other grounds6. Commencement of action1. NonresidentProperty of nonresident may be attached at or after commencement of suit. Federal Farm Mortgage Corp. v. Hughes, 137 Neb. 454, 289 N.W. 866 (1940).Actual residence and not domicile determines status of debtor. Webb v. Wheeler, 79 Neb. 172, 112 N.W. 369 (1907).A nonresident defendant cannot attack the jurisdiction of the court upon the sole ground that he is not the owner of the property seized under the writ. Kneeland v. Weigley, 76 Neb. 276, 107 N.W. 574 (1906).One absent from state on business or pleasure is not nonresident, residence question of fact. Johnson v. May, 49 Neb. 601, 68 N.W. 1032 (1896).Husband becoming resident here, wife is not nonresident though she remains in former state. Swaney v. Hutchins, 13 Neb. 266, 13 N.W. 282 (1882).One actually residing here is not nonresident, though permanent legal domicile is elsewhere. Olmstead v. Rivers, 9 Neb. 234, 2 N.W. 366 (1879).2. Absconded"Abscond" means to hide, conceal or absent oneself clandestinely to avoid process; not necessary to leave state. Gandy v. Jolly, Swan, Dew & Hardin, 34 Neb. 536, 52 N.W. 376 (1892).3. Removal of propertyEven though property is removed from state, fraudulent intent is essential. Hunter v. Soward, 15 Neb. 215, 18 N.W. 58 (1883).Removal is immaterial unless coupled with intent to defraud. Steele v. Dodd, 14 Neb. 496, 16 N.W. 909 (1883).4. Fraudulent conveyanceCreditors may attach property fraudulently conveyed, whether debtor is resident or nonresident. Ainsworth v. Roubal, 74 Neb. 723, 105 N.W. 248 (1905).Real estate fraudulently conveyed may be attached though record title is in another. Coulson v. Galtsman, 1 Neb. Unof. 502, 96 N.W. 349 (1901).5. Other groundsWhile the U.S. Supreme Court in Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), stated that any given exigency requirement alone would not necessarily protect a statutory attachment scheme from due process challenges, we find that this requirement in our statutes, in conjunction with the bond, affidavit, and discharge hearing provisions, does comply with due process under the 14th Amendment to the U.S. Constitution. Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50 (1997).Grounds for attachment and garnishment are set out in this section. Insurance Co. of North America v. Maxim's of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965).Statutory provisions relating to garnishment before judgment have no application to registration and enforcement of foreign judgment. Sullivan v. Sullivan, 168 Neb. 850, 97 N.W.2d 348 (1959).Action for damages for breach of brokerage contract authorized attachment. National Reefer Service, Inc. v. Felman, 164 Neb. 783, 83 N.W.2d 547 (1957).Mere insolvency of a debtor is not a ground for attachment. Federal Farm Mtg. Corp. v. Mulder, 135 Neb. 133, 280 N.W. 454 (1938).In absence of fraud or collusion, no garnishable debt arises from contract for personal services paid for in advance. Salyers Auto Co. v. De Vore, 116 Neb. 317, 217 N.W. 94 (1927).Affidavit is sufficient that sets forth nature of claim, that it is just, the amount plaintiff ought to recover, and existence of statutory grounds for attachment. McDonald v. Marquardt, 52 Neb. 820, 73 N.W. 288 (1897).Property of insolvent bank before receiver appointed is not exempt from attachment. Arnold v. Weimer, 40 Neb. 216, 58 N.W. 709 (1894).Action on breach of warranty in deed is for a debt, which may be recovered by attachment. Cheney v. Straube, 35 Neb. 521, 53 N.W. 479 (1892).Attachment may lie on bond for attachment, though damages are unliquidated. Withers & Kolls v. Brittain, Smith & Co., 35 Neb. 436, 53 N.W. 375 (1892).Preference of bona fide creditors is not ground for attachment. Britton v. Boyer, 27 Neb. 522, 43 N.W. 356 (1889).An order of attachment covering a cause of action upon a debt not fraudulently contracted coupled with a cause of action upon a debt fraudulently contracted issued on affidavit alleging fraudulently contracted debt is subject to proper discharge. Meyer v. Evans, 27 Neb. 367, 43 N.W. 109 (1889).Debt is not fraudulently contracted where damage is due merely to negligence in performing services. Rawlings v. Powers, 25 Neb. 681, 41 N.W. 651 (1889).Action upon contract express or implied will sustain attachment. Hart v. Barnes, 24 Neb. 782, 40 N.W. 322 (1888).At least one of causes enumerated must exist; insolvency is insufficient. Walker v. Hagerty, 20 Neb. 482, 30 N.W. 556 (1886).Debt incurred by false representations is ground for attachment. Young & Co. v. Cooper, 12 Neb. 610, 12 N.W. 91 (1882).Writ of attachment held unconstitutional because issued on conclusive affidavit, without bond, and without judicial supervision. Aaron Ferer & Sons Co. v. Berman, 431 F.Supp. 847 (D. Neb. 1977).6. Commencement of actionNeither county judge nor Supreme Court Judges can allow attachment in action pending in district court when district judge is present in county. Ferson v. Armour & Co., 103 Neb. 809, 174 N.W. 425 (1919).Provision requiring plaintiff in action on claim other than contract to be bona fide resident for six months does not violate federal Constitution. Tanner v. DeVinney, 101 Neb. 46, 161 N.W. 1052 (1917).Action is deemed commenced, so attachment writ may issue, when petition filed and summons issued with intent to serve same. Johnson v. Larson, 96 Neb. 193, 147 N.W. 476 (1914); Hoagland v. Wilcox, 42 Neb. 138, 60 N.W. 376 (1894); Coffman v. Brandhoeffer, 33 Neb. 279, 50 N.W. 6 (1891).Attachment is not allowed in proceeding to revive judgment. Farak v. First Nat. Bank of Schuyler, 67 Neb. 463, 93 N.W. 682 (1903).Affidavit can be filed simultaneously with bringing of suit. McCord, Brady & Co. v. Bowen, 51 Neb. 247, 70 N.W. 950 (1897).Order of attachment can properly issue before summons is served. Coffman v. Brandhoeffer, 33 Neb. 279, 50 N.W. 6 (1891).Attachment is a provisional remedy. Shoaff v. Gage, 163 F.Supp. 179 (D. Neb. 1958).

25-1002 Attachment; affidavit of plaintiff; contents.

25-1002. Attachment; affidavit of plaintiff; contents.An order of attachment shall be approved by a judge of any district court or county court only after there has been presented to him or her an affidavit or affidavits based upon personal knowledge (1) that the facts set forth in plaintiff's complaint which state a valid cause of action and the amount plaintiff is entitled to recover are true, (2) describing the existence and approximate value of any of defendant's property known to the plaintiff to be subject to the jurisdiction of the court, and (3) stating specific facts demonstrating reasonable cause that one or more of the grounds for an attachment enumerated in section 25-1001 exist. SourceR.S.1867, Code § 199, p. 425; Laws 1911, c. 168, § 2, p. 545; R.S.1913, § 7733; C.S.1922, § 8677; C.S.1929, § 20-1002; R.S.1943, § 25-1002; Laws 1980, LB 597, § 2; Laws 1984, LB 13, § 36; Laws 1991, LB 732, § 42; Laws 2002, LB 876, § 19.Annotations1. By whom made2. Nature of claim3. Miscellaneous1. By whom madeIn affidavit for garnishment affiant should swear to the fact that he is plaintiff, agent or attorney. Crawford State Bank v. Murphy, 142 Neb. 795, 7 N.W.2d 762 (1943).Affidavit taken before plaintiff's attorney is bad, but is amendable. Dobry v. Western Mfg. Co., 57 Neb. 228, 77 N.W. 656 (1898).Affidavit must distinctly show it was made by natural person. Clements & Co. v. Puckett, 1 Neb. Unof. 356, 95 N.W. 796 (1901).2. Nature of claimWhere attachment is issued for total claimed in five counts, and one count is dismissed, attachment should be dissolved. First Nat. Bank of Greenwood v. Van Doren, 68 Neb. 142, 93 N.W. 1017 (1903).Slight variance in amounts claimed in petition and affidavit is immaterial. Grotte v. Nagle, 50 Neb. 363, 69 N.W. 973 (1897).Affidavit in language of statute is sufficient. Burnham v. Ramge, 47 Neb. 175, 66 N.W. 277 (1896).Where several grounds are joined, should be alleged in conjunctive. Tessier v. Englehart & Co., 18 Neb. 167, 24 N.W. 734 (1885).Affidavit need not state cause of action; condensed statement of nature of claim is sufficient. Dorrington v. Minnick, 15 Neb. 397, 19 N.W. 456 (1884).Affidavit upon a promissory note described in petition was sufficient. Livingston v. Coe, 4 Neb. 379 (1876).Mere statement that defendant is nonresident of this state is sufficient. Citizens State Bank of Wood River v. Porter, 4 Neb. Unof. 73, 93 N.W. 391 (1903).3. MiscellaneousAffidavit of attachment is required in garnishment proceedings. Insurance Co. of North America v. Maxim's of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965).Burden rests upon plaintiff to sustain requirements of statute. National Reefer Service, Inc. v. Felman, 164 Neb. 783, 83 N.W.2d 547 (1957).Amendable even after motion to quash. Clarke Banking Co. v. Wright, 37 Neb. 382, 55 N.W. 1060 (1893).Attachment may be obtained pending appeal. Strickler v. Hargis, 34 Neb. 468, 51 N.W. 1039 (1892).Plaintiff may supply defects in affidavit for publication of service. Miller v. Eastman, 27 Neb. 408, 43 N.W. 179 (1889).One affidavit is sufficient to cover successive orders of attachment. Thompson v. Stetson, 15 Neb. 112, 17 N.W. 368 (1883).Omission of venue cannot be attacked in collateral action. Crowell v. Johnson, 2 Neb. 146 (1873).

25-1003 Attachment; plaintiff's undertaking; bond; amount.

25-1003. Attachment; plaintiff's undertaking; bond; amount.(1) The judge to whom the affidavit described in section 25-1002 is presented shall determine the amount of an undertaking the plaintiff shall be required to file. The judge shall also approve the sufficiency of one or more sureties of the plaintiff, unless the plaintiff presents, by affidavit or otherwise, specific facts demonstrating that no sureties are necessary to protect the defendant from loss.(2) In determining the amount of the bond described in subsection (1) of this section, the judge shall be guided by the amount of probable damage that will be suffered by the defendant if his or her property is wrongfully attached. In estimating the probable damage the defendant would suffer, the judge shall consider all the circumstances presented to him or her in the plaintiff's affidavits, including the value of any of the defendant's property described therein.(3) After determining the amount of the plaintiff's undertaking, along with necessary sureties, the judge shall, if an order of attachment is otherwise proper under section 25-1002, direct the clerk to issue, after the necessary bond is filed, an order of attachment in an amount determined by the judge to approximate the amount of the claim and the costs of the action including the costs of the attachment. SourceR.S.1867, Code § 200, p. 425; Laws 1911, c. 168, § 3, p. 545; R.S.1913, § 7734; C.S.1922, § 8678; C.S.1929, § 20-1003; R.S.1943, § 25-1003; Laws 1969, c. 183, § 1, p. 775; Laws 1980, LB 597, § 3. Cross ReferencesState officers and departments, not required to give attachment bond, see section 25-21,216. Annotations1. Bond2. Nonresident or foreign corporation3. Sureties4. Miscellaneous1. BondStatute required plaintiff to comply with the provisions of the general statute on attachment as to necessary allegations, and with the bond provisions of this section. VonSeggern v. Willman, 244 Neb. 565, 508 N.W.2d 261 (1993).Foreign corporation which has domesticated or obtained certificate of authority to do business is not subject to waiver of bond provisions. Schreiner v. Irby Constr. Co., 184 Neb. 222, 166 N.W.2d 121 (1969).Bond to protect against wrongful attachment is required. Insurance Co. of North America v. Maxim's of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965).In attachment proceedings bond is required in all cases except where defendant is nonresident or foreign corporation, but if defendant fails to assail the validity of the attachment and, for a consideration, agrees that money in hands of garnishee be paid into court to abide judgment, he ratifies and confirms such attachment proceedings though no bond was given. Vanburg v. Mauel, 131 Neb. 685, 269 N.W. 626 (1936).Action on bond and for malicious attachment are not inconsistent remedies. Simons v. Fagen, 62 Neb. 287, 87 N.W. 21 (1901).Bond is valid where plaintiff fails to sign, though he is not liable thereon. Storz v. Finklestein, 50 Neb. 177, 69 N.W. 856 (1897).Attaching creditor need not sign attachment bond. It is sufficient if signed by surety alone. Storz v. Finklestein, 48 Neb. 27, 66 N.W. 1020 (1896).2. Nonresident or foreign corporationFiling of a bond is not jurisdictional to the right to have an attachment issued against a nonresident defendant for a debt not due. Gutterson v. Meyer, 68 Neb. 767, 94 N.W. 969 (1903).3. SuretiesSurety is not liable if sheriff seizes property of third person. Hopewell v. McGrew, 50 Neb. 789, 70 N.W. 397 (1897).Defendant in action on bond may set off debt due from plaintiff to principal. Field v. Maxwell, 44 Neb. 900, 63 N.W. 62 (1895).Partnership may sign as surety; attorney should not, but bond is valid. Tessier v. Crowley, 17 Neb. 207, 22 N.W. 422 (1885).Surety is liable for all damages sustained until property is returned. McReady v. Rogers, 1 Neb. 124 (1871).4. MiscellaneousIn the absence of malice, an action for the wrongful suing out of an attachment can be maintained alone on the attachment bond. Carlson v. Schroeder, 164 Neb. 443, 82 N.W.2d 416 (1957).Attachment procured in action brought without plaintiff's authority is "wrongfully obtained." Bauer v. Mitchell, 80 Neb. 187, 113 N.W. 986 (1907).On general denial burden is on plaintiff to negative grounds alleged; dissolution of attachment not alone sufficient. Jandt v. Deranleau, 57 Neb. 497, 78 N.W. 22 (1899); Storz v. Finklestein, 50 Neb. 177, 69 N.W. 856 (1897).Obligation of bond is for payment of damages, and liability upon it occurs when the damages accrue. Waller v. Deranleau, 4 Neb. Unof. 497, 94 N.W. 1038 (1903).

25-1004 Attachment; order; contents; service; manner.

25-1004. Attachment; order; contents; service; manner.The order of attachment shall (1) require the sheriff to attach the lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, money, and effects of the defendant in his or her county not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the amount stated in the order of attachment; (2) inform the defendant of his or her right to obtain redelivery of the property attached by executing a redelivery bond in accordance with sections 25-1009 and 25-1024; and (3) inform the defendant of his or her right under section 25-1040, to move to discharge the attachment after service of the order upon him or her and of the plaintiff's obligation under section 25-1041, to prove the grounds upon which the attachment order was issued by a preponderance of the evidence if such a motion to discharge is made.The order of attachment shall be directed and delivered to the sheriff and shall be served on the defendant in any manner authorized by statute for service of a summons. SourceR.S.1867, Code § 201, p. 426; R.S.1913, § 7735; C.S.1922, § 8679; C.S.1929, § 20-1004; R.S.1943, § 25-1004; Laws 1980, LB 597, § 4. AnnotationsIndebtedness of maker upon promissory note, before maturity, is not the subject of attachment. Fisher v. O'Hanlon, 93 Neb. 529, 141 N.W. 157 (1913).Writ is limited to seizure of property sufficient to satisfy amount plaintiff claims to be entitled to recover and probable costs. First Nat. Bank of Greenwood v. Van Doren, 68 Neb. 142, 93 N.W. 1017 (1903).Stock owned by defendant in domestic corporation may be reached by garnishment. Farmers' & Merchants' Nat. Bank v. Mosher, 63 Neb. 130, 88 N.W. 552 (1901).Order need not state nature of claim. Tessier v. Englehart & Co., 18 Neb. 167, 24 N.W. 734 (1885).Order need not recite filing of affidavit and bond. Tessier v. Crowley, 16 Neb. 369, 20 N.W. 264 (1884).

25-1005 Attachment; several and successive orders; issuance to several counties; costs; taxation.

25-1005. Attachment; several and successive orders; issuance to several counties; costs; taxation.Orders of attachment may be issued to the sheriffs of different counties; and several of them may, at the option of the plaintiff, be issued at the same time or in succession; but such only as have been executed shall be taxed in the costs, unless otherwise directed by the court. SourceR.S.1867, Code § 202, p. 426; R.S.1913, § 7736; C.S.1922, § 8680; C.S.1929, § 20-1005; R.S.1943, § 25-1005.AnnotationsWhile order of attachment may issue to another county, garnishee summons cannot. Benedict v. T. L. V. Land & Cattle Co., 66 Neb. 236, 92 N.W. 210 (1902).Several orders of attachment may be issued at the same time, or in succession; but in such case only a simple affidavit is necessary. Thompson v. Stetson, 15 Neb. 112, 17 N.W. 368 (1883).

25-1006 Attachment; order; return day.

25-1006. Attachment; order; return day.The return day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it issued. SourceR.S.1867, Code § 203, p. 426; R.S.1913, § 7737; C.S.1922, § 8681; C.S.1929, § 20-1006; R.S.1943, § 25-1006.AnnotationsAction commenced when petition is filed and summons issued is bona fide. Coffman v. Brandhoeffer, 33 Neb. 279, 50 N.W. 6 (1891).

25-1007 Attachment; several orders against same defendant; time of service.

25-1007. Attachment; several orders against same defendant; time of service.When there are several orders of attachment against the same defendant, they shall be executed in the order in which they are received by the sheriff. SourceR.S.1867, Code § 204, p. 426; R.S.1913, § 7738; C.S.1922, § 8682; C.S.1929, § 20-1007; R.S.1943, § 25-1007.AnnotationsFirst levy has priority. Moore v. Fedewa, 13 Neb. 379, 14 N.W. 170 (1882).

25-1008 Attachment; order; execution; inventory; appraisement.

25-1008. Attachment; order; execution; inventory; appraisement.The order of attachment shall be executed by the sheriff without delay. He shall go to the place where defendant's property may be found, and there, in the presence of two residents of the county, declare that by virtue of said order he attaches said property at the suit of such plaintiff; and the officer, with the said residents, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and residents and returned with the order. Where the property attached is real property, the officer shall leave with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order. Where it is personal property, and accessible, he shall take the same into his custody, and hold it subject to the order of the court. SourceR.S.1867, Code § 205, p. 426; R.S.1913, § 7739; C.S.1922, § 8683; C.S.1929, § 20-1008; R.S.1943, § 25-1008. Cross ReferencesAppraisers' fees, mileage, see section 33-122. Annotations1. Order2. Inventory3. Appraisement4. Miscellaneous1. OrderWhere order of attachment was not executed in presence of two witnesses, dissolution of attachment was proper. Carlson v. Schroeder, 164 Neb. 443, 82 N.W.2d 416 (1957).Order must be strictly followed; witnesses must be disinterested. Ames v. Parrott, 61 Neb. 847, 86 N.W. 503 (1901).Leaving copy with occupant is sufficient, though he is not owner or lessee of land. Westervelt v. Hagge, 61 Neb. 647, 85 N.W. 852 (1901).Levy in absence of witnesses is void. Citizens State Bank of Wood River v. Porter, 4 Neb. Unof. 73, 93 N.W. 391 (1903).2. InventoryInventory and appraisement are admissible in evidence in action against sheriff for conversion. Maul v. Drexel, 55 Neb. 446, 76 N.W. 163 (1898).3. AppraisementAppraisement is neither limited to net value of interest of attachment debtors nor is such interest therein required to be separately appraised. Federal Farm Mort. Corp. v. Hughes, 137 Neb. 820, 291 N.W. 475 (1940).Where several writs are levied, one appraisement is sufficient. Connelly and Duffy v. Edgerton and Miller, 22 Neb. 82, 34 N.W. 76 (1887).4. MiscellaneousSheriff's failure to take crop of standing corn into possession as required hereunder was excused by reason of snowstorm; judgment of contempt sustained. Leadabrand v. State, 121 Neb. 836, 238 N.W. 656 (1931).In action for failure to levy, burden is on plaintiff to show debtor had seizable property and sheriff negligently failed to levy. Conway v. Magill, 53 Neb. 370, 73 N.W. 702 (1898).Sheriff must take and keep possession of personal property or sureties are liable for loss. Deering & Co. v. Wisherd, 46 Neb. 720, 65 N.W. 788 (1896).Posting copy where there is an occupant is void as to third persons. Shoemaker v. Harvey, 43 Neb. 75, 61 N.W. 109 (1894).Failure to return order of attachment physically to the court file does not defeat the court's jurisdiction. Shoaff v. Gage, 163 F.Supp. 179 (D. Neb. 1958).

25-1009 Attachment or garnishment; delivery of property to defendant or garnishee; conditions.

25-1009. Attachment or garnishment; delivery of property to defendant or garnishee; conditions.(1) The sheriff shall deliver the property attached to the person in whose possession it was found, and property or money seized in garnishment, to the defendant in the attachment proceedings, if the defendant be the true owner thereof, upon the delivery by such person, either to the sheriff at any time before the return of the sheriff of the attachment or garnishment process or to the clerk of the court, after the return by the sheriff to the court, of an undertaking to the plaintiff, with one or more sufficient sureties resident in the county, or a bonding company authorized to do business in the State of Nebraska, to the effect that the parties to the same are bound, in the amount of the appraised value thereof, or in the case of garnishment, in the amount of the value of the property or money in the hands of the garnishee, that the property or its appraised value in money shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person so bound. In case of garnishment, the garnishee shall be discharged upon the approval of said bond.(2) If the defendant presents to the court, by affidavit or otherwise, specific facts demonstrating that no sureties are necessary to insure that the property or its appraised value in money shall be forthcoming to answer the judgment of the court in the action, the court may allow the undertaking to be executed by the defendant alone. SourceR.S.1867, Code § 206, p. 426; R.S.1913, § 7740; Laws 1915, c. 146, § 1, p. 316; C.S.1922, § 8684; C.S.1929, § 20-1009; R.S.1943, § 25-1009; Laws 1980, LB 597, § 5. AnnotationsDefendant who has given "forthcoming bond" under this section may move to dissolve attachment. Burnham-Munger-Root D. G. Co. v. Strahl, 102 Neb. 142, 166 N.W. 266 (1918).Principal in redelivery bond is estopped, in action thereon, to deny that he is owner of the attached property. Commercial Nat. Bank of Kearney v. Faser, 99 Neb. 105, 155 N.W. 601 (1915).After property is returned to officer, party may claim title in proper action. Runquist v. Anderson, 64 Neb. 755, 90 N.W. 760 (1902).Principal in bond is estopped to claim title to property. Cooper v. Davis Mill Co., 48 Neb. 420, 67 N.W. 178 (1896).Only officer holding writ may approve. Dewey & Stone v. Kavanaugh, 45 Neb. 233, 63 N.W. 396 (1895).Sureties are not liable unless bond is approved and property delivered; need not indorse approval on bond; implied approval. Cortelyou v. Maben, 40 Neb. 512, 59 N.W. 94 (1894).Defendant may move to dissolve attachment after redelivery bond is given. Wilson v. Shepherd, 15 Neb. 15, 16 N.W. 826 (1883).Must allege order of sale had been made. Young v. Joseph Bros. & Davidson, 5 Neb. Unof. 559, 99 N.W. 522 (1904).

25-1010 Attachment; garnishment; affidavit; summons; answer; duties of garnishee; written interrogatories.

25-1010. Attachment; garnishment; affidavit; summons; answer; duties of garnishee; written interrogatories.(1) When an affidavit is filed in a civil action containing the necessary allegations of an affidavit of attachment and in addition allegations that the affiant has good reason to and does believe that any person, partnership, limited liability company, or corporation to be named and within the county where the action is brought has property of the defendant, describing the same, in his or her possession that cannot be levied upon by attachment, a judge of any district court or county court may direct the clerk to issue a summons and order requiring such person, partnership, limited liability company, or corporation as garnishee to answer written interrogatories, to be furnished by the plaintiff and attached to such summons and order, respecting the matters set forth in section 25-1026. All answers must be given in writing but do not need to be verified or given under oath. All answers so given will be deemed to be true and subject to all of the penalties of perjury in the event of willful falsification.(2) The summons and order referred to in subsection (1) of this section shall be returnable within five days from the date of the issuance thereof and shall require the garnishee to answer within ten days from the date of service upon him or her. The order shall inform the garnishee (a) of the penalties that may be imposed in the event of willful falsification, (b) that he or she is obligated to hold the property of every description and the credits of the defendant in his or her possession or under his or her control at the time of the service of the order and the interrogatories until further direction from the court, (c) of his or her ability to obtain discharge from liability to the defendant under section 25-1027, and (d) of the ability of the court to enter judgment against him or her upon failure to answer the interrogatories as provided in section 25-1028. If the answers to the interrogatories identify property of the defendant in the possession of the garnishee, the clerk shall mail to the last-known address of the defendant copies of the garnishment summons and answers to interrogatories within five days after the return of the answers to the interrogatories.(3) Prior to final judgment in an action, no order of garnishment shall issue for wages due from an employer to an employee. SourceR.S.1867, Code § 207, p. 427; R.S.1913, § 7741; C.S.1922, § 8685; C.S.1929, § 20-1010; R.S.1943, § 25-1010; Laws 1951, c. 67, § 1, p. 202; Laws 1955, c. 85, § 1, p. 254; Laws 1959, c. 101, § 1, p. 422; Laws 1971, LB 834, § 1; Laws 1980, LB 597, § 6; Laws 1984, LB 13, § 37; Laws 1991, LB 732, § 43; Laws 1993, LB 121, § 168.Annotations1. Property subject to garnishment2. Property not subject to garnishment3. Miscellaneous1. Property subject to garnishmentLiability of insurance company, which has taken charge of defense of insured against action for damages for death of latter's employee, is subject to garnishment if insured is insolvent. Elliott v. AEtna Life Ins. Co., 100 Neb. 833, 161 N.W. 579 (1917).Stock of attachment defendant in domestic corporation may be garnished. Farmers' & Merchants' Nat. Bank v. Mosher, 63 Neb. 130, 88 N.W. 552 (1901).Stock subscription, due and payable, may be garnished by creditor of corporation. Bohrer v. Adair, 61 Neb. 824, 86 N.W. 495 (1901).Garnishee alone can raise defense, and may waive. Sturtevant Co. v. Bohn Sash & Door Co., 59 Neb. 82, 80 N.W. 273 (1899).Mortgagee in possession may be garnished for interest of mortgagor in chattels. Meyer v. Miller, 51 Neb. 620, 71 N.W. 315 (1897).Excess of pledge property may be garnished in hands of pledgee and an accounting for the surplus may be secured. Aetna Ins. Co. v. Bank of Wilcox, 48 Neb. 544, 67 N.W. 449 (1896).Equity of redemption in mortgaged personalty is subject to garnishment, even after condition broken. Burnham v. Doolittle, 14 Neb. 214, 15 N.W. 606 (1883).2. Property not subject to garnishmentDebtor can be garnished only in state where debt is payable, if creditor resides there. Bullard & Hoagland v. Chaffee, 61 Neb. 83, 84 N.W. 604 (1900).Receiver is not subject to garnishment. Veith v. Ress, 60 Neb. 52, 82 N.W. 116 (1900).Money in custody of law, as in hands of clerk for distribution under decree, cannot be garnished. Sturtevant Co. v. Bohn Sash & Door Co., 57 Neb. 671, 78 N.W. 265 (1899).Money held by clerk of court in official capacity is in custody of law. Baker v. Peterson, 57 Neb. 375, 77 N.W. 774 (1899).Order cannot be issued outside county where principal action brought. So. Omaha Nat. Bank v. Farmers & Merchants Nat. Bank of Fremont, 45 Neb. 29, 63 N.W. 128 (1895)."In custody of law" applies only where sheriff must pay money in hand to execution plaintiff. Oppenheimer & Co. v. Marr, 31 Neb. 811, 48 N.W. 818 (1891).Maker of negotiable note cannot be garnished if same has been transferred. Edney v. Willis, 23 Neb. 56, 36 N.W. 300 (1888).Foreign corporation having no property of defendant in state or money payable to him here is not subject to garnishment. Wright v. Chicago, B. & Q. R. R. Co., 19 Neb. 175, 27 N.W. 90 (1886).County cannot be garnished. State ex rel. Crawford v. Eberly, 12 Neb. 616, 12 N.W. 96 (1882).City is not subject to garnishment proceedings. People ex rel. Spaun v. Mayor of Omaha, 2 Neb. 166 (1873).3. MiscellaneousIn garnishment proceedings under this section, a bond must be given. Insurance Co. of North America v. Maxim's of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965).There is no unconstitutional discrimination between garnishment before judgment and statutory procedure to enforce foreign judgment. Sullivan v. Sullivan, 168 Neb. 850, 97 N.W.2d 348 (1959).Section does not require that written notice which officer leaves with garnishee shall be issued and signed by officer. Crawford State Bank v. Murphy, 142 Neb. 795, 7 N.W.2d 762 (1943).After judgment, summons in garnishment in aid of execution from one county to another is unauthorized. Hinds State Bank v. Loffler, 113 Neb. 110, 202 N.W. 465 (1925).Garnishee must be resident of county; defendant may be nonresident of state. Hargreaves v. Tennis, 63 Neb. 356, 88 N.W. 486 (1901).Affidavit must be filed before notice issues. State ex rel. Austrian, Wise & Co. v. Duncan, 37 Neb. 631, 56 N.W. 214 (1893).Interpleader action in federal court did not preclude maintenance of state court garnishment proceedings. Globe v. Rutgers Fire Ins. Co. v. Viele, 110 F.Supp. 889 (D. Neb. 1958).

25-1011 Garnishment; service upon garnishee; forms; notice; hearing.

25-1011. Garnishment; service upon garnishee;forms; notice; hearing.(1) The summons and order of garnishmentand the interrogatories in duplicate, a notice to judgment debtor form, anda request for hearing form shall be served upon the garnishee in the mannerprovided for service of a summons in a civil action.(2) The judgment creditor or his or her agent or attorney shall sendto the judgment debtor by certified mail to the last-known address of thejudgment debtor a copy of the summons and order of garnishment, a notice tojudgment debtor form, and a request for hearing form within seven businessdays after issuance by the courtand shall certify in writing to the court the date of the mailing.(3) The Supreme Court by rule of court shall promulgate uniform garnishmentforms for use in all courts in this state. The forms shall include the summons andorder of garnishment, the garnishment interrogatories, a notice to judgmentdebtor form, and a request for hearing form.(4) The notice to judgment debtor form shall include the following information:(a) That certain funds are exempt from garnishment if such funds arefrom certain government benefits and other sources;(b) That wages are exempt up to a certain level and the amount thatcan be garnished varies if the judgment debtor is the head of a family;(c) That if the judgment debtor believes the court should not allowa garnishment either because the funds sought are exempt or because the amountis not owed on the judgment, the judgment debtor is entitled to a hearingwithin ten days after a request by the judgmentdebtor to determine such issues; and(d) That if the judgment debtor wishes a hearing as prescribed in subdivision(c) of this subsection, the judgment debtor shall make a request by fillingout the request for hearing form and file the form with the court within threebusiness days after receipt of the noticeto judgment debtor form by the judgment debtor.(5) If the judgment debtor in a garnishment proceeding requests a hearing,the court shall grant the hearing within ten days of the request. SourceR.S.1867, Code § 208, p. 427; R.S.1913, § 7742; C.S.1922, § 8686; C.S.1929, § 20-1011; R.S.1943, § 25-1011; Laws 1951, c. 67, § 2, p. 203; Laws 1955, c. 85, § 2, p. 255; Laws 1980, LB 597, § 7; Laws 1983, LB 447, § 39; Laws 1984, LB 845, § 23; Laws 1988, LB 1030, § 14; Laws 2010, LB1085, § 1.Effective Date: July 15, 2010AnnotationsThis section not applicable when garnishee is a foreign insurance company which has complied with statutory provisions to obtain certificate of authority to do business. Pupkes v. Sailors, 183 Neb. 784, 164 N.W.2d 441 (1969).Cannot serve nonresident or firm not doing business in state; service on person in possession. Mathews, Tootle & Maule v. Smith & Crittenden, 13 Neb. 178, 12 N.W. 821 (1882).

25-1012 Repealed. Laws 1980, LB 597, § 18.

25-1012. Repealed. Laws 1980, LB 597, § 18.

25-1012.01 Garnishment; public officers and employees.

25-1012.01. Garnishment; public officers and employees.All provisions, including provisions for a continuing lien prescribed in section 25-1056, requirements, conditions, and exemptions of the garnishment laws of the State of Nebraska shall apply to all state, county, municipal, municipally owned corporation, township, and school district officers and employees to the same extent and effect as such laws apply under the existing statutes of the State of Nebraska to officers and employees of private corporations. Consent is hereby given for garnishment proceedings against the State of Nebraska and against all counties, townships, municipal corporations, municipally owned corporations, and school districts in the same manner and under the same procedure as is now provided by law for bringing such suits and proceedings against corporations and individuals. This section shall apply only in case it is sought to hold and apply the earnings of such officers and employees, which earnings have been earned or are to be earned by personal services rendered to the state or to any county, township, municipal corporation, municipally owned corporation, or school district. SourceLaws 1980, LB 597, § 16; Laws 1988, LB 1030, § 15.

25-1012.02 Garnishment; public officers and employees; procedure; process; answer.

25-1012.02. Garnishment; public officers and employees; procedure; process; answer.Such proceedings may be brought against the State of Nebraska or any county, township, municipal corporation, municipally owned corporation, or school district as garnishee defendant, and process shall be served in the manner provided for service of a summons in a civil action, except that certified mail service may not be used. It shall be the duty of the garnishee defendant to answer any garnishment summons served under the provisions of this section and section 25-1012.01 in the same manner as is now provided by law for the answer of corporations, and such defendant shall abide the order of the court issuing the garnishment, with regard to paying into court any amount ordered, not in excess of the amount earned by the officer or employee garnished, to the date of the answer. Such defendant may submit a written answer by United States mail to the clerk of the court issuing the summons. Such answer in garnishment shall in addition to any other matters stated therein state the amount of money due the officer or employee whose earnings are sought to be held to the answer day as shown in such summons, but shall not include the amount of any check or warrant which has been drawn and signed at the time of the service of garnishment summons. SourceLaws 1980, LB 597, § 17; Laws 1984, LB 845, § 24.

25-1013 Repealed. Laws 1980, LB 597, § 18.

25-1013. Repealed. Laws 1980, LB 597, § 18.

25-1014 Several attachments of same property; inventory and appraisement.

25-1014. Several attachments of same property; inventory and appraisement.Different attachments of the same property may be made by the same officer, and one inventory and appraisement shall be sufficient, and it shall not be necessary to return the same with more than one order. SourceR.S.1867, Code § 209, p. 427; R.S.1913, § 7743; C.S.1922, § 8687; C.S.1929, § 20-1014; R.S.1943, § 25-1014.AnnotationsOne appraisement is sufficient. Connelly and Duffy v. Edgerton and Miller, 22 Neb. 82, 34 N.W. 76 (1887).

25-1015 Attached property; subsequent orders; procedure.

25-1015. Attached property; subsequent orders; procedure.When the property is under attachment, it shall be attached under subsequent orders as follows: (1) If it is real property, it shall be attached in the manner prescribed in section 25-1008; (2) if it is personal property, it shall be attached as in the hands of the officer and subject to any previous attachment; and (3) if the same person or corporation be made a garnishee, a copy of the order and notice shall be left with him in the manner prescribed in section 25-1011. SourceR.S.1867, Code § 210, p. 427; R.S.1913, § 7744; C.S.1922, § 8688; C.S.1929, § 20-1015; R.S.1943, § 25-1015; Laws 1959, c. 102, § 1, p. 425. AnnotationsCannot levy subsequent orders after property is taken from control by replevin. Merrill v. Wedgwood, 25 Neb. 283, 41 N.W. 149 (1888).

25-1016 Order of attachment; return; contents.

25-1016. Order of attachment; return; contents.The officer shall return upon every order of attachment what he or she has done under it. The return must show when and how the defendant was served, and the property attached and the time it was attached. When garnishees are served, their names and the time each was served must be stated. The officer shall also return with the order all undertakings given under it. SourceR.S.1867, Code § 211, p. 427; R.S.1913, § 7745; C.S.1922, § 8689; C.S.1929, § 20-1016; R.S.1943, § 25-1016; Laws 1980, LB 597, § 8. AnnotationsReturn not describing appraisement is sufficient after judgment. Grebe v. Jones, 15 Neb. 312, 18 N.W. 81 (1883).Irregular to permit amendment without showing, so as to release property. Griffith v. Short, 14 Neb. 259, 15 N.W. 335 (1883).Return should state if redelivery bond was given, etc. Hilton v. Ross, 9 Neb. 406, 2 N.W. 862 (1879).

25-1017 Order of attachment; effect; lien of consignee; interest and other costs; how computed.

25-1017. Order of attachment; effect; lien of consignee; interest and other costs; how computed.An order of attachment binds the property attached from the time of service, and the garnishee shall stand liable to the plaintiff in attachment for all property, money, and credits in his hands, or due from him to defendant, from the time he is served with the written notice mentioned in section 25-1011, notwithstanding the money or debt owing by such garnishee, and which is sought to be attached, may be payable at the place of residence of a nonresident defendant; but where the property is attached in the hands of a consignee, his lien thereon shall not be affected by the attachment.At the time of the issuance of the order of attachment, all interest and other costs due, as of that date, shall be computed. All interest and other costs which accrue after such date shall be specified on a per day basis or such other basis for assessment as may exist. Upon delivery of the attached property by the garnishee, such garnishee shall not be liable for interest or costs other than those specified in the order of attachment. SourceR.S.1867, Code § 212, p. 427; Laws 1911, c. 168, § 4, p. 546; R.S.1913, § 7746; C.S.1922, § 8690; C.S.1929, § 20-1017; R.S.1943, § 25-1017; Laws 1959, c. 102, § 2, p. 425; Laws 1978, LB 670, § 1.Annotations1. Scope of lien2. Priorities3. Miscellaneous1. Scope of lienProceedings in garnishment are in the nature of notice of attachment to party in possession who becomes trustee. Crawford State Bank v. Murphy, 142 Neb. 795, 7 N.W.2d 762 (1943).Debt owing by one Illinois corporation to another on contract payable in that state may, by attachment and garnishment in Nebraska, be subjected to payment of debt owing to resident of Iowa. Morrison v. Illinois C. R. R. Co., 101 Neb. 49, 161 N.W. 1032 (1917).Lien of garnishment of debt due insolvent is subject to bankruptcy law. Hall v. Chicago, B. & Q. R. R. Co., 88 Neb. 20, 128 N.W. 645 (1910).Attachment lien merges in judgment lien. Lincoln Upholstering Co. v. Baker, 82 Neb. 592, 118 N.W. 321 (1908).Lien is not lost by taking money judgment without order for sale. Coulson v. Saltsman, 71 Neb. 495, 98 N.W. 1055 (1904).Plaintiff does not acquire full lien but right to hold garnishee personally liable for property or value. Benedict v. T. L. V. Land & Cattle Co., 66 Neb. 236, 92 N.W. 210 (1902).Lien by garnishment may attach to property held by fraudulent grantee of debtor. Glover v. Hargadine-McKittrick Dry Goods Co., 62 Neb. 483, 87 N.W. 170 (1901).Attachment creditors of grantee of fraudulent conveyance acquire no valid lien against creditors of grantor. Westervelt v. Hagge, 61 Neb. 647, 85 N.W. 852 (1901).Plaintiff by service of writ becomes entitled to all rights of defendant against garnishee. Cahn v. Carpless Co., 61 Neb. 512, 85 N.W. 538 (1901); Chamberlain Banking House v. Reliance Ins. Co., 59 Neb. 195, 80 N.W. 822 (1899).Plaintiff has lien only to extent of defendant's actual interest. Barnes v. Cox, 58 Neb. 675, 79 N.W. 550 (1899); Chicago, B. & Q. R. R. Co. v. First Nat. Bank of Omaha, 58 Neb. 548, 78 N.W. 1064 (1899).Lien of attachment on insolvent bank is not vacated by appointment of receiver. Arnold v. Weimer, 40 Neb. 216, 58 N.W. 709 (1894).Garnishment does not affect vendor's rights of stoppage in transit. Chicago, B. & Q. R. R. Co. v. Painter & Sons, 15 Neb. 394, 19 N.W. 488 (1884).Deed executed after attachment levied is subject to judgment. Wright v. Smith, 11 Neb. 341, 7 N.W. 537 (1881).2. PrioritiesGarnishment is subject to prior bona fide assignments of debt. Cockins v. Bank of Alma, 84 Neb. 624, 122 N.W. 16 (1909).Rights of holder of prior unrecorded deed stated. Naudain v. Fullenwider, 72 Neb. 221, 100 N.W. 296 (1904).Attachment lien is prior to rights of vendor under unrecorded conditional sale contract. New Home Sewing Machine Co. v. Beals, 44 Neb. 816, 62 N.W. 1092 (1895).3. MiscellaneousThis section is designed to supplement and implement general attachment statute. Insurance Co. of North America v. Maxim's of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965).Lien may be enforced by creditor's bill. Hargreaves v. Tennis, 63 Neb. 356, 88 N.W. 486 (1901).Officer holding personal property under lawful attachment levy may be charged as garnishee and the property bound from the time of the service of summons in garnishment on him. Pitkin v. Burnham, 62 Neb. 385, 87 N.W. 160 (1901).Purchaser after attachment is bound by adjudication as to validity of attachment. Nagle v. First Nat. Bank of Omaha, 57 Neb. 552, 77 N.W. 1074 (1899).Property is in custody of law after garnishee is summoned. Meyer v. Miller, 51 Neb. 620, 71 N.W. 315 (1897).Judgment debtor may be garnished; but not under writ from another court. Scott v. Rohman, 43 Neb. 618, 62 N.W. 46 (1895).

25-1018 Attachment; receiver; appointment; oath; bond; accounting.

25-1018. Attachment; receiver; appointment; oath; bond; accounting.The court, or any judge thereof during vacation, may, on the application of the plaintiff and on good cause shown, appoint a receiver, who shall take an oath faithfully to discharge his duty, and shall give an undertaking to the State of Nebraska in such sum as the court or judge may direct and with such security as shall be approved by the clerk of the court for the faithful performance of his duty as such receiver, and to pay over all money, and account for all property which may come into his hands by virtue of his appointment, at such times and in such manner as the court may direct. SourceR.S.1867, Code § 213, p. 428; R.S.1913, § 7747; C.S.1922, § 8691; C.S.1929, § 20-1018; R.S.1943, § 25-1018. Cross ReferencesFor other bond provisions, see section 25-1084. AnnotationsCourt may appoint receiver where garnishee abandons property to defendant. Northfield Knife Co. v. Shapleigh, 24 Neb. 635, 39 N.W. 788 (1888).

25-1019 Attachment; receiver; powers and duties; actions by.

25-1019. Attachment; receiver; powers and duties; actions by.Such receiver shall take possession of all notes, due bills, books of account, accounts and all other evidences of debt, that have been taken by the sheriff or other officer as the property of the defendant in attachment, and shall proceed to settle and collect the same. For that purpose, he may commence and maintain actions in his own name as such receiver but in such actions no right of defense shall be impaired or affected. SourceR.S.1867, Code § 214, p. 428; R.S.1913, § 7748; C.S.1922, § 8692; C.S.1929, § 20-1019; R.S.1943, § 25-1019.AnnotationsAccounts due defendant are subject to attachment. Sloan v. Thomas Mfg. Co., 58 Neb. 713, 79 N.W. 728 (1899).

25-1020 Attachment; receiver; appointment; notice to debtors of defendant in attachment; effect.

25-1020. Attachment; receiver; appointment; notice to debtors of defendant in attachment; effect.Such receiver shall forthwith give notice of his appointment to the persons indebted to the defendant in attachment. The notice shall be written or printed, and shall be served on the debtor or debtors by copy personally or by copy left at the residence. From the date of such service the debtors shall stand liable to the plaintiff in attachment for the amount of money and credits in their hands, or due from them to the defendant in attachment, and shall account therefor to the receiver. SourceR.S.1867, Code § 215, p. 428; R.S.1913, § 7749; C.S.1922, § 8693; C.S.1929, § 20-1020; R.S.1943, § 25-1020.

25-1021 Attachment; receiver; reports; custody of property; duties.

25-1021. Attachment; receiver; reports; custody of property; duties.Such receiver shall, when required, report his proceedings to the court, and hold all money collected by him and property which may come into his hands subject to the order of the court. SourceR.S.1867, Code § 216, p. 428; R.S.1913, § 7750; C.S.1922, § 8694; C.S.1929, § 20-1021; R.S.1943, § 25-1021.

25-1022 Attachment; sheriff; powers when no receiver appointed; bond.

25-1022. Attachment; sheriff; powers when no receiver appointed; bond.When a receiver is not appointed by the court or a judge thereof, as provided in section 25-1018, the sheriff or other officer attaching the property shall have all the powers and perform all the duties of a receiver appointed by the court or judge, and may, if necessary, commence and maintain actions in his own name as such officer. He may be required to give security other than his official undertaking. SourceR.S.1867, Code § 217, p. 428; R.S.1913, § 7751; C.S.1922, § 8695; C.S.1929, § 20-1022; R.S.1943, § 25-1022.

25-1023 Attached property; preservation; sale; proceeds.

25-1023. Attached property; preservation; sale; proceeds.The court shall make proper orders for the preservation of the property during the pendency of the suit. It may direct the sale of property when, because of its perishable nature or the costs of keeping it, a sale will be for the benefits of the parties. In vacation, such sale may be ordered by the judge of the court. The sale shall be public, after such advertisement as is prescribed for the sale of like property on execution, and shall be made in such manner, and upon such terms of credit, with security, as the court or judge, having regard to the probable duration of the action, may direct. The proceeds, if collected by the sheriff, with all the money received by him from garnishees, shall be held and paid over by him under the same requirement and responsibilities of himself and sureties as are provided in respect to money deposited in lieu of bail. SourceR.S.1867, Code § 218, p. 429; R.S.1913, § 7752; C.S.1922, § 8696; C.S.1929, § 20-1023; R.S.1943, § 25-1023.

25-1024 Attachment; discharge; bond; effect; restitution of property or proceeds.

25-1024. Attachment; discharge; bond; effect; restitution of property or proceeds.(1) If the defendant, or any other person on his or her behalf, at any time before judgment, causes an undertaking to be executed to the plaintiff by one or more sureties resident in the county, to be approved by the court, in the amount of the plaintiff's claim as stated in his or her affidavit, to the effect that the defendant shall perform the judgment of the court, the attachment in such action shall be discharged and restitution made of any property taken under it or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee in such action for any property of the defendant in his or her hands.(2) If the defendant presents to the court, by affidavit or otherwise, specific facts demonstrating that no sureties are necessary to insure satisfaction of the plaintiff's claim, the court may allow the undertaking to be executed by the defendant alone. SourceR.S.1867, Code § 219, p. 429; R.S.1913, § 7753; C.S.1922, § 8697; C.S.1929, § 20-1024; R.S.1943, § 25-1024; Laws 1980, LB 597, § 9. AnnotationsUpon dissolution of an attachment, ordinarily all property should be returned to the defendant. Ceres Fertilizer, Inc. v. Beekman, 209 Neb. 447, 308 N.W.2d 347 (1981).Failure to return property upon order dissolving attachment may create liability on attachment bond. Schneider v. Daily, 148 Neb. 413, 27 N.W.2d 550 (1947).After defendant in attachment proceedings has given "forthcoming" bond, he may move to dissolve attachment, but not if he gives "discharge" bond, because approval of same ipso facto discharges writ. Burnham-Munger-Root Dry Goods Co. v. Strahl, 102 Neb. 142, 166 N.W. 266 (1918).

25-1025 Attachment; discharge; bond, how executed.

25-1025. Attachment; discharge; bond, how executed.The undertaking mentioned in subsection (1) of section 25-1024 may, in vacation, be executed in the presence of the sheriff having the order of attachment in his or her hands, or, after the return of the order, before the clerk, with the same effect as if executed in court, the sureties in either case to be approved by the officer before whom the undertaking is executed. SourceR.S.1867, Code § 220, p. 429; R.S.1913, § 7754; C.S.1922, § 8698; C.S.1929, § 20-1025; R.S.1943, § 25-1025; Laws 1980, LB 597, § 10.

25-1026 Garnishee; answer; interrogatories; filing fee; costs.

25-1026. Garnishee; answer; interrogatories; filing fee; costs.The garnishee shall answer, under oath, all the interrogatories put to him touching the property of every description and credits of the defendant in his possession or under his control at the time of the service of the summons and interrogatories, and he shall disclose truly the amount owing by him to the defendant, whether due or not, and, in case of a corporation, any stock therein held by or for the benefit of the defendant, at the time of the service of the summons and interrogatories. The fee for filing of answer may be taxed and collected in the same manner as other costs in such proceedings. SourceR.S.1867, Code § 221, p. 429; Laws 1877, § 1, p. 10; R.S.1913, § 7755; C.S.1922, § 8699; C.S.1929, § 20-1026; R.S.1943, § 25-1026; Laws 1951, c. 67, § 3, p. 203; Laws 1959, c. 101, § 2, p. 423. AnnotationsAs a general rule, a garnishee owes a duty to act in good faith and answer fully and truthfully all proper interrogatories presented to him. Petersen v. Central Park Properties, 275 Neb. 220, 745 N.W.2d 884 (2008).Failure to tender garnishee fee excuses failure to appear but does not discharge garnishee from liability. Crawford State Bank v. Murphy, 142 Neb. 795, 7 N.W.2d 762 (1943).After stating substance of this section, comment made that while garnishee appeared in person to answer questions, he did not file written answer. Hilton v. Clements, 137 Neb. 791, 291 N.W. 483 (1940).Stock of domestic corporation for which certificate has been issued and delivered to purchaser is deemed to be in possession of corporation subject to attachment or garnishment proceedings. Danbom v. Danbom, 132 Neb. 858, 273 N.W. 502 (1937).A nonresident whose property has been seized under a writ of attachment may, without making a general appearance, demand relief to which want of jurisdiction entitles him. McCartney v. McCartney, 128 Neb. 671, 260 N.W. 184 (1935).After judgment, summons in garnishment from one county to another in aid of execution, is unauthorized. Hinds State Bank v. Loffler, 113 Neb. 110, 202 N.W. 465 (1925).Section applies to all garnishment proceedings; unless fees are tendered, garnishee need not appear. Chicago, B. & Q. R. R. Co. v. Van Cleave, 52 Neb. 67, 71 N.W. 971 (1897).Where garnishee after answer receives notice of assignment made before levy, he should make supplemental answer. Coleman v. Scott, 27 Neb. 77, 42 N.W. 896 (1889).Prepayment is waived by appearance and answer without objection. Pope v. Kingman & Co., 2 Neb. Unof, 184, 96 N.W. 519 (1901).Where insurance company denies indebtedness to judgment debtor in answer to garnishee summons, judgment creditor should be remitted to action for unsatisfactory disclosure. State Farm Mut. Auto. Ins. Co. v. Mackechnie, 114 F.2d 728 (8th Cir. 1940).

25-1027 Garnishee; payment into court; effect; costs.

25-1027. Garnishee; payment into court; effect; costs.A garnishee may pay the money owing to the defendant by him into court.He shall be discharged from liability to the defendant for any money so paid not exceeding the plaintiff's claim. He shall not be subjected to costs beyond those caused by his resistance of the claim against him; and if he disclose the property in his hands, or the true amount owing by him, and deliver or pay the same according to the order of the court, he shall be allowed his costs. SourceR.S.1867, Code § 222, p. 430; R.S.1913, § 7756; C.S.1922, § 8700; C.S.1929, § 20-1027; R.S.1943, § 25-1027; Laws 1951, c. 67, § 4, p. 204. AnnotationsGarnishee may pay money into court. Scott v. McDonald, 125 Neb. 803, 252 N.W. 323 (1934).Where money is voluntarily paid into court by defendant's debtor upon attempted garnishment, court's order to apply it upon plaintiff's judgment will not be set aside because of insufficiency in garnishment proceeding. Ryan v. Bullion, 100 Neb. 705, 161 N.W. 167 (1916).Payment into court in good faith protects garnishee though made before defendant was summoned. Scott v. Kirschbaum, 47 Neb. 331, 66 N.W. 443 (1896).

25-1028 Garnishee; failure to answer; presumption; judgment.

25-1028. Garnishee; failure to answer; presumption; judgment.If the garnishee fails to answer, as required by section 25-1026, he shall be presumed to be indebted to the defendant in the full amount of the claim of plaintiff. Upon notice to the garnishee given within such time and in such manner as the court shall direct, judgment may be entered for such amount as the court may find due from the garnishee. SourceR.S.1867, Code § 223, p. 430; R.S.1913, § 7757; C.S.1922, § 8701; C.S.1929, § 20-1028; R.S.1943, § 25-1028; Laws 1951, c. 67, § 5, p. 204.AnnotationsIf the garnishee fails to answer interrogatories, it is presumed that the garnishee is indebted to the judgment debtor in the full amount of the judgment creditor's claim. This is a rebuttable presumption. Petersen v. Central Park Properties, 275 Neb. 220, 745 N.W.2d 884 (2008).A presumption of indebtedness arising under this section is rebuttable. Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002).A notice did not inform the garnishee that if it failed to appear, default judgment would be taken against it. Lee Sapp Leasing v. Ciao Caffe & Espresso, Inc., 10 Neb. App. 948, 640 N.W.2d 677 (2002).

25-1029 Garnishment; property; delivery into court; bond in lieu of delivery.

25-1029. Garnishment; property; delivery into court; bond in lieu of delivery.If the garnishee answers that, at the time of the service of the summons and interrogatories upon him or her, he or she was possessed of any property of the defendant or was indebted to him or her, the court may order the delivery of such property and the payment of the amount owing by the garnishee into court; or the court may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff by one or more sufficient sureties to the effect that the amount shall be paid or the property forthcoming as the court may direct. If the garnishee presents to the court, by affidavit or otherwise, specific facts demonstrating that no sureties are necessary to insure that the amount owing by the garnishee shall be paid, or the property forthcoming, the court may allow the undertaking to be executed by the garnishee alone. SourceR.S.1867, Code § 224, p. 430; R.S.1913, § 7758; C.S.1922, § 8702; C.S.1929, § 20-1029; R.S.1943, § 25-1029; Laws 1951, c. 67, § 6, p. 204; Laws 1959, c. 101, § 3, p. 423; Laws 1980, LB 597, § 11. AnnotationsWhere original judgment on which garnishment proceedings are based is made ineffective by bankruptcy of judgment debtor, the garnishment summons and power and rights thereunder cease; garnishee is released from liability on summons although court made no order. Savard v. Physicians Casualty Co., 124 Neb. 627, 247 N.W. 567 (1933).In absence of fraud or collusion, no garnishable debt arises from contract for personal services paid for in advance. Salyers Auto Co. v. De Vore, 116 Neb. 317, 217 N.W. 94 (1927).Where garnishment proceedings are void, money should be returned to garnishee. Yeiser v. Cathers, 73 Neb. 317, 102 N.W. 612 (1905).Judgment debtor is liable to process of garnishment when the two actions are brought in the same court. Scott v. Rohman, 43 Neb. 618, 62 N.W. 46 (1895).Garnishee, not making full disclosure, is liable over to creditor. Smith v. Ainscow, 11 Neb. 476, 9 N.W. 646 (1881).Garnishee, not making full disclosure, defendant have judgment, if appeal is taken. Dolby v. Tingley, 9 Neb. 412, 2 N.W. 866 (1879).Liability of garnishee is to be determined by status of fund when answer is taken. First Nat. Bank of Pawnee City v. Manning, 2 Neb. Unof. 3, 95 N.W. 1128 (1901).

25-1030 Garnishee; answer; controvert; allegations; liability; release.

25-1030. Garnishee; answer; controvert; allegations; liability; release.If the garnishee appears and answers and his or her disclosure is not satisfactory to the plaintiff, or if he or she fails to comply with the order of the court, by delivering the property and paying the money owing into court, or giving the undertaking required in section 25-1029, the plaintiff may file an application within twenty days for determination of the liability of the garnishee. The application may controvert the answer of the garnishee, or may allege facts showing the existence of indebtedness of the garnishee to the defendant or of the property and credits of the defendant in the hands of the garnishee. The answer of the garnishee, if one has been filed, and the application for determination of the liability of the garnishee shall constitute the pleadings upon which trial of the issue of the liability of the garnishee shall be had. If the plaintiff fails to file such application within twenty days, the garnishee shall be released and discharged. SourceR.S.1867, Code § 225, p. 430; R.S.1913, § 7759; C.S.1922, § 8703; C.S.1929, § 20-1030; R.S.1943, § 25-1030; Laws 1951, c. 67, § 7, p. 204; Laws 1980, LB 597, § 12.Annotations1. Proceedings2. Liability of garnishee1. ProceedingsIn a garnishment proceeding, the answers to interrogatories and the application to determine garnishee liability are the only pleadings for disposition of the liability issue. An answer to interrogatories which states that the garnishee has no property, money, or credit due and owing to the judgment debtor acts as a denial of all issues presented by the application to determine garnishee liability filed by the garnishor. Torrison v. Overman, 250 Neb. 164, 549 N.W.2d 124 (1996).If a garnisher is dissatisfied with a garnishee's answer but does not controvert or traverse the answer given, then the garnishee's answer is the only filed pleading containing allegations or statements about property, funds, or credits of a judgment debtor, a solitary pleading which is taken as true and conclusive. NC+ Hybrids v. Growers Seed Assn., 228 Neb. 306, 422 N.W.2d 542 (1988).Where a garnishee in its answer to a garnisher's interrogatories denies liability to the garnisher, and no application for determination of liability is filed, the answer of the garnishee is the solitary pleading before the court and must be taken as true and conclusive. Failure to proceed as required by this section constitutes an abandonment or discontinuance of garnishment proceedings. NC+ Hybrids v. Growers Seed Assn., 219 Neb. 296, 363 N.W.2d 362 (1985).Where answer of garnishee denies owing judgment debtor, remedy is provided by this section by filing of petition for unsatisfactory disclosure. Searcey v. Badgett, 137 Neb. 185, 288 N.W. 537 (1939).Court having obtained jurisdiction, can give relief by rendering money judgment against garnishee if no other remedy is available. Ternes v. Watke, 134 Neb. 798, 279 N.W. 718 (1938).Stock subscription to capital stock of a corporation may be garnished by a creditor of the corporation. Bohrer v. Adair, 61 Neb. 824, 86 N.W. 495 (1901).Finding of court in main action is not conclusive upon rights or liabilities of garnishee. Hollingsworth v. Fitzgerald, 16 Neb. 492, 20 N.W. 836 (1884).If personal judgment against garnishee is desired, plaintiff must proceed under this section. Clark v. Foxworthy, 14 Neb. 241, 15 N.W. 342 (1883).Rights of creditor are no greater than rights of attachment debtor against garnishee. Fitzgerald v. Hollingsworth, 14 Neb. 188, 15 N.W. 345 (1883).Execution need not have been returned unsatisfied in garnishment before judgment. Pope v. Kingman & Co., 2 Neb. Unof. 184, 96 N.W. 519 (1901).2. Liability of garnisheeFailure to prove that original answer was false does not defeat action but does relieve from liability for costs. Western Smelting & Refining Co. v. First Nat. Bank of Omaha, 150 Neb. 477, 35 N.W.2d 116 (1948).One obtaining goods under "Bulk Sales Law" was liable as trustee for benefit of creditors of his vendor and liable as garnishee. Damicus v. Kelly, 120 Neb. 588, 234 N.W. 416 (1931).Garnishee, turning property over to defendant pending action, is liable to plaintiff. Farmers & Merchants Nat. Bank v. Mosher, 68 Neb. 713, 94 N.W. 1003 (1903), judgment below affirmed on rehearing, 68 Neb. 724, 100 N.W. 133 (1904).It was duty of bank, when garnished, to set up claimed lien under chattel mortgage. Grainger v. First Nat. Bank of Sutton, 63 Neb. 46, 88 N.W. 121 (1901).Garnishee is not liable unless defendant had right of action against him for legal demand due or to become due. Chicago, B. & Q. R. R. Co. v. Van Cleave, 52 Neb. 67, 71 N.W. 971 (1897).Garnishee is liable if answer is not made in good faith, fully and unequivocally. Work v. Brown, 38 Neb. 498, 56 N.W. 1082 (1893).Failure to prove answer incomplete is no bar to action; but relieves garnishee of costs. Burden is on garnishee to prove right to property. Cornish & Tibbets v. Russell, 32 Neb. 397, 49 N.W. 379 (1891).Garnishee is mere stakeholder; and is protected only when money is paid into court. Russell v. Lau, 30 Neb. 805, 47 N.W. 193 (1890).Insurance company is liable to judgment creditor for unsatisfactory disclosure, when it has issued valid policy, in force and effect, to pay judgment recovered against the judgment debtor. State Farm Mut. Auto. Ins. Co. v. Mackechnie, 114 F.2d 728 (8th Cir. 1940).

25-1030.01 Garnishee; application; notice; manner of service.

25-1030.01. Garnishee; application; notice; manner of service.Upon filing an application for determination of liability of the garnishee, the plaintiff shall give the garnishee and the defendant in the original action notice of the filing thereof and of the time and place of trial thereon. The notice shall be given within such time and in such manner as the court shall direct. SourceLaws 1951, c. 67, § 8, p. 205. AnnotationsA notice of hearing for the determination of garnishee liability was given as required by this section where the county court entered an order setting the hearing on garnishee liability and requiring "due service" of the order on the parties, and notice of hearing as originally set and notice of continued hearing were sent to same address as the initial summons and garnishment interrogatories. General Serv. Bureau v. Moller, 12 Neb. App. 288, 672 N.W.2d 41 (2003).This section does not require that notice of a garnishee liability hearing be given in a manner consistent with service of process on corporations. General Serv. Bureau v. Moller, 12 Neb. App. 288, 672 N.W.2d 41 (2003).

25-1030.02 Garnishee; application; hearing; judgment.

25-1030.02. Garnishee; application; hearing; judgment.The trial of the determination of the liability of the garnishee shall be conducted the same as in a civil action. If it shall appear upon the trial of the liability of the garnishee that the garnishee was (1) indebted to the defendant, or (2) had any property or credits of the defendant, in his possession or under his control at the time of being served with the notice of garnishment, he shall be liable to the plaintiff, in case judgment is finally recovered by plaintiff against the defendant, to the full amount thereof, or to the amount of such indebtedness or property held by the garnishee. The plaintiff in such event may have a judgment against the garnishee (1) for the amount of money due from the garnishee to the defendant in the original action, or (2) for the delivery to the sheriff or to the clerk of the court of any property in the garnishee's hands belonging to the defendant in the original action within a time to be fixed by the court, or for the value of the same as fixed in the judgment if not delivered within the time fixed. SourceLaws 1951, c. 67, § 9, p. 205. AnnotationsIn a trial pursuant to this section, a garnishee may present evidence to rebut a presumption of indebtedness arising under section 25-1028. Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002).The garnishee is not liable unless the defendant had a right of action against him for a legal demand due or to become due. In an action to determine the liability of the garnishee, the plaintiff has the burden to establish why the garnishee was liable to the defendant at the time notice of garnishment was served. Gerdes v. Klindt, 253 Neb. 260, 570 N.W.2d 336 (1997).In determining the liability of a garnishee to a garnishor, the test is whether, as of the time the summons in garnishment was served, the facts would support a recovery by the garnishor's judgment debtor against the garnishee. Davis Erection Co. v. Jorgensen, 248 Neb. 297, 534 N.W.2d 746 (1995).Material issues of fact in a contested garnishment proceeding are triable by jury unless waived. Christiansen v. Moore, 184 Neb. 818, 172 N.W.2d 620 (1969).A garnishee is not liable to the plaintiff unless the judgment debtor had a right of action against the garnishee. Lee Sapp Leasing v. Ciao Caffe & Espresso, Inc., 10 Neb. App. 948, 640 N.W.2d 677 (2002).Federal court would retain fund until state garnishment proceedings were completed. Globe & Rutgers Fire Ins. Co. v. Viele, 110 F.Supp. 889 (D. Neb. 1953).

25-1030.03 Garnishment; ownership of property; intervention; trial.

25-1030.03. Garnishment; ownership of property; intervention; trial.Any person claiming ownership of any money or property sought to be reached in the possession or under the control of the garnishee as the property of the defendant in the original action may intervene in the garnishment proceedings by a suitable pleading and set up facts showing that the debt or the property with which it is sought to charge the garnishee is the property of such intervenor. The defendant in the original action may by a suitable pleading filed in the garnishment proceedings set up facts showing that the debt or the property with which it is sought to charge the garnishee is (1) exempt from execution, or (2) for any other reason is not liable for plaintiff's claim. If issue on such intervention or on such pleading by the defendant in the original action is joined by the plaintiff, it shall be tried with the issues as to the garnishee's liability. If such debt or property or any part thereof is found to be the property of the intervenor, or is found to be exempt or not liable, the garnishee shall be discharged as to that part which is exempt or not liable. SourceLaws 1951, c. 67, § 10, p. 206. AnnotationsTrial of an issue of fact should be treated as a trial between a plaintiff and a defendant. Christiansen v. Moore, 184 Neb. 818, 172 N.W.2d 620 (1969).

25-1031 Garnishee; final judgment; when rendered; effect; discharge by delivery of property; costs.

25-1031. Garnishee; final judgment; when rendered; effect; discharge by delivery of property; costs.Final judgment shall not be rendered against the garnishee until the action against the defendant in the original action has been determined. If in such action judgment be rendered for the defendant, the garnishee shall be discharged and recover costs. If the plaintiff shall recover against the defendant in the original action, and the garnishee shall deliver up all the property, money, and credits of the defendant in his possession and pay all the money from him due as the court may order, the garnishee shall be discharged, and the costs of the proceedings against him shall be paid out of the property and money so surrendered, or as the court may think right and proper. SourceR.S.1867, Code § 226, p. 431; R.S.1913, § 7760; C.S.1922, § 8704; C.S.1929, § 20-1031; R.S.1943, § 25-1031; Laws 1951, c. 67, § 11, p. 206. AnnotationsAction under this section is a special proceeding. Western Smelting & Refining Co. v. First Nat. Bank of Omaha, 150 Neb. 477, 35 N.W.2d 116 (1948).Order upon garnishee as to disposition of property awaits final judgment against defendant. Reed v. Fletcher, 24 Neb. 435, 39 N.W. 437 (1888).Order of court is not conclusive on garnishee, and he may contest his liability. Hollingsworth v. Fitzgerald, 16 Neb. 492, 20 N.W. 836 (1884).Order discharging garnishee is final order and reviewable. Turpin v. Coates, 12 Neb. 321, 11 N.W. 300 (1882).

25-1031.01 Garnishment; judgment; effect.

25-1031.01. Garnishment; judgment; effect.The judgment in the garnishment action shall be conclusive between the garnishee, plaintiff, defendant, and any intervenor. SourceLaws 1951, c. 67, § 12, p. 206. AnnotationsA specific holding, in a prior garnishment action by a creditor against a bank's insurer under a blanket employee dishonesty bond, that the bank did not suffer a loss within the coverage of such bond is res judicata in a subsequent suit brought by the bank to recover under the bond and cannot be relitigated. Bank of Mead v. St. Paul Fire & Marine Ins. Co., 202 Neb. 403, 275 N.W.2d 822 (1979).

25-1031.02 Garnishment; costs; fee.

25-1031.02. Garnishment; costs; fee.(1) The party seeking garnishment shall advance the costs of transcript and docketing the matter in the district court.(2) The district court shall be entitled to the following fee in civil matters: For issuance of a writ of execution, restitution, garnishment, attachment, and examination in aid of execution, a fee of five dollars each. SourceLaws 1955, c. 86, § 3, p. 259; Laws 1988, LB 1030, § 16.

25-1032 Attachment; judgment for defendant; effect; return of property or proceeds.

25-1032. Attachment; judgment for defendant; effect; return of property or proceeds.If judgment is rendered in the action for the defendant, the attachment shall be discharged, and the property attached, or its proceeds, shall be returned to him. SourceR.S.1867, Code § 227, p. 431; R.S.1913, § 7761; C.S.1922, § 8705; C.S.1929, § 20-1032; R.S.1943, § 25-1032.AnnotationsOrder discharging garnishee ipso facto discharges attachment. Alpirn v. Goodman, 3 Neb. Unof. 397, 91 N.W. 530 (1902).

25-1033 Attachment; judgment for plaintiff; how satisfied; return of surplus.

25-1033. Attachment; judgment for plaintiff; how satisfied; return of surplus.If judgment is rendered for the plaintiff, it shall be satisfied as follows: So much of the property remaining in the hands of the officer, after applying the money arising from the sale of perishable property, and so much of the personal property and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there is not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue in all respects as in other cases. Any surplus of the attached property, or its proceeds, shall be returned to the defendant. SourceR.S.1867, Code § 228, p. 431; R.S.1913, § 7762; C.S.1922, § 8706; C.S.1929, § 20-1033; R.S.1943, § 25-1033.AnnotationsAttached property should be sold the same as if levied on by execution. Federal Farm Mortgage Corporation v. Hughes, 137 Neb. 820, 291 N.W. 475 (1940).Purchaser at sale is protected from collateral attack based on defective publication of notice. Brown v. Bose, 55 Neb. 200, 75 N.W. 536 (1898).Same rule applies as to sales on execution; notice was defective. Helmer v. Rehm, 14 Neb. 219, 15 N.W. 344 (1883).Judgment was informal, but not subject to collateral attack. Crowell v. Johnson, 2 Neb. 146 (1873).

25-1034 Attached property; delivery to sheriff; power of court to compel.

25-1034. Attached property; delivery to sheriff; power of court to compel.The court may compel the delivery to the sheriff, for sale, of any of the attached property for which an undertaking may have been given, and may proceed summarily on such undertaking to enforce the delivery of the property or the payment of such sum as may be due upon the undertaking, by rules and attachments, as in cases of contempt. SourceR.S.1867, Code § 229, p. 431; R.S.1913, § 7763; C.S.1922, § 8707; C.S.1929, § 20-1034; R.S.1943, § 25-1034.

25-1035 Attached property out of sheriff's possession; repossession; power of court to order.

25-1035. Attached property out of sheriff's possession; repossession; power of court to order.The court may order the sheriff to repossess himself, for the purpose of selling it, of any of the attached property which may have passed out of his hands without having been sold or converted into money; and the sheriff shall, under such order, have the same power to take the property as he would have under an order of attachment. SourceR.S.1867, Code § 230, p. 431; R.S.1913, § 7764; C.S.1922, § 8708; C.S.1929, § 20-1035; R.S.1943, § 25-1035.

25-1036 Attachment; intervening claimants; proceeding to ascertain title.

25-1036. Attachment; intervening claimants; proceeding to ascertain title.If personal property which has been attached be claimed by any person other than the defendant, it shall be the duty of the officer to have the validity of such claim tried, and such proceedings must be had thereon, with the like effect, as in case the property had been seized upon execution and claimed by a third person. SourceR.S.1867, Code § 231, p. 431; R.S.1913, § 7765; C.S.1922, § 8709; C.S.1929, § 20-1036; R.S.1943, § 25-1036.AnnotationsSheriff may bring suit hereunder to try claim of party to personal property attached by him. Leadabrand v. State, 121 Neb. 836, 238 N.W. 656 (1931).

25-1037 Several attachments; same property; reference.

25-1037. Several attachments; same property; reference.Where several attachments are executed on the same property, or the same persons are made garnishees, the court, on the motion of any of the plaintiffs, may order a reference to ascertain and report the amounts and priorities of the several attachments. SourceR.S.1867, Code § 232, p. 432; R.S.1913, § 7766; C.S.1922, § 8710; C.S.1929, § 20-1037; R.S.1943, § 25-1037.AnnotationsMere fact that party claims to be owner of attached property does not give him right to intervene in attachment suit and thus have question of his ownership determined in such suit. Geis v. Geis, 125 Neb. 394, 250 N.W. 252 (1933).Second attaching creditor may intervene to try priority of liens. Deere, Wells & Co. v. Eagle Mfg. Co., 49 Neb. 385, 68 N.W. 504 (1896).Court has authority to adjudicate priorities between attaching creditors. State ex rel. Austrian, Wise & Co. v. Duncan, 37 Neb. 631, 56 N.W. 214 (1893).

25-1038 Repealed. Laws 1980, LB 597, § 18.

25-1038. Repealed. Laws 1980, LB 597, § 18.

25-1039 Attachment; additional security; right of defendant to require.

25-1039. Attachment; additional security; right of defendant to require.The defendant may, at any time before judgment, after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court is satisfied that the surety in the plaintiff's undertaking has removed from this state, or is not sufficient for the amount thereof, it may vacate the order of attachment and direct restitution of any property taken under it, unless in a reasonable time, to be fixed by the court, sufficient security is given by the plaintiff. SourceR.S.1867, Code § 234, p. 432; R.S.1913, § 7768; C.S.1922, § 8712; C.S.1929, § 20-1039; R.S.1943, § 25-1039.

25-1040 Attachment; motion to discharge; right of defendant.

25-1040. Attachment; motion to discharge; right of defendant.The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or part of the property attached. SourceR.S.1867, Code § 235, p. 432; R.S.1913, § 7769; C.S.1922, § 8713; C.S.1929, § 20-1040; R.S.1943, § 25-1040.Annotations1. Motion to discharge2. Issues determined1. Motion to dischargeUpon dissolution of an attachment, ordinarily all property should be returned to the defendant. Ceres Fertilizer, Inc. v. Beekman, 209 Neb. 447, 308 N.W.2d 347 (1981).Defendant who has given "forthcoming bond" may move to dissolve attachment, but not if he has given "discharge bond." Burnham-Munger-Root D. G. Co. v. Strahl, 102 Neb. 142, 166 N.W. 266 (1918).Defendant cannot move to discharge attachment on ground that property is not his. Kneeland v. Weigley, 76 Neb. 276, 107 N.W. 574 (1906).Mortgagee of attached property cannot move to discharge. Meyer, Bannerman & Co. v. Keefer, 58 Neb. 220, 78 N.W. 506 (1899).Court cannot hear motion to discharge attachment filed before, but not submitted until after judgment. Herman v. Hayes, 58 Neb. 54, 78 N.W. 365 (1899).Defendant may move to discharge attachment although, prior to levy, he has sold interest therein. Kountze v. Scott, 52 Neb. 460, 72 N.W. 585 (1897).Issue on motion to discharge is not whether defendant owns property attached, but grounds for attachment. South Park Imp. Co. v. Baker, 51 Neb. 392, 70 N.W. 952 (1897).Hearing of motion to discharge in attachment is a trial. Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314 (1896).Subsequent attaching creditors cannot move to dissolve attachment, but may intervene to have priorities determined. Deere, Well & Co. v. Eagle Mfg. Co., 49 Neb. 385, 68 N.W. 504 (1896).Validity of mortgage executed by defendant cannot be determined on motion to discharge attachment. Landauer v. Mack, 43 Neb. 430, 61 N.W. 597 (1895).Filing motion does not excuse failure to plead to petition. Stutzner v. Printz, 43 Neb. 306, 61 N.W. 620 (1895).Motion must be made before judgment; but where submitted, court may rule on same after judgment for plaintiff. Stutzner v. Printz, 43 Neb. 306, 61 N.W. 620 (1895); Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb. 520, 57 N.W. 161 (1893).2. Issues determinedIn a hearing under this section, the burden is upon the plaintiff to sustain by a preponderance of the evidence one or more of the grounds on which attachment is claimed. Ceres Fertilizer, Inc. v. Beekman, 205 Neb. 768, 290 N.W.2d 199 (1980).Defendant, by filing answer to merits and motion to dissolve attachment on sufficiency and truthfulness of affidavit, made general appearance which waived defects in original summons. Johnson v. Larson, 96 Neb. 193, 147 N.W. 476 (1914).Debtor alone can question grounds on which attachment is issued. Wagner v. Wolf, 75 Neb. 780, 106 N.W. 1024 (1906).Defendant may contest, though he had disposed of all interest in property. Symns Gro. Co. v. Snow, 58 Neb. 516, 78 N.W. 1066 (1899).Merits of case cannot be adjudicated on hearing to dissolve. McDonald v. Marquardt, 52 Neb. 820, 73 N.W. 288 (1897).Plaintiff is estopped to deny interest of defendant to oppose attachment. Kountze v. Scott, 52 Neb. 460, 72 N.W. 585 (1897); McCord, Brady & Co. v. Bowen, 51 Neb. 247, 70 N.W. 950 (1897)."Reasonable notice" defined. Sterling Mfg. Co. v. Hough, 49 Neb. 618, 68 N.W. 1019 (1896).

25-1041 Attachment; motion to discharge; evidence.

25-1041. Attachment; motion to discharge; evidence.The hearing of the motion to discharge shall be a trial of the issue of the existence, at the time of the issuance of the order, of one or more of the grounds of attachment listed in section 25-1001, as alleged in the affidavits under section 25-1002. The court shall discharge an order of attachment unless the plaintiff proves by a preponderance of the evidence one of the grounds alleged under section 25-1001 upon which the writ was issued. The court may order that the evidence at the hearing of the motion to discharge be presented, in whole or part, by affidavits in the form prescribed by section 25-1334, for affidavits in support of or in opposition to a motion for summary judgment. In all cases in which the court does not so order, evidence presented at the hearing of the motion to discharge shall be governed by the Nebraska Evidence Rules. SourceR.S.1867, Code § 236, p. 432; R.S.1913, § 7770; C.S.1922, § 8714; C.S.1929, § 20-1041; R.S.1943, § 25-1041; Laws 1980, LB 597, § 13. Cross ReferencesNebraska Evidence Rules, see section 27-1103. AnnotationsWhere grounds are denied, burden is on plaintiff. Malcolm Savings Bank v. Cronin, 80 Neb. 231, 116 N.W. 150 (1908).Affidavits sworn to before attorney in case, if objected to, cannot be used. Malcolm Savings Bank v. Cronin, 80 Neb. 228, 114 N.W. 158 (1907).Whether plaintiff may use oral evidence is discretionary with trial court. Kountze v. Scott, 52 Neb. 460, 72 N.W. 585 (1897).Hearing on motion to discharge is a "trial," for which justice may charge fee. Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314 (1896).Plaintiff must prove grounds to satisfaction of court; may open and close, in discretion of court. Citizens State Bank v. Baird, 42 Neb. 219, 60 N.W. 551 (1894).Affidavits constitute pleadings; plaintiff opens and closes and has burden of proof. Jordan v. Dewey, 40 Neb. 639, 59 N.W. 88 (1894).Findings of trial court should not be disturbed unless clearly wrong. Fremont Brewing Co. v. Pekarek, 4 Neb. Unof. 531, 95 N.W. 12 (1903).Manner of taking evidence on hearing is discretionary with trial court. Dittman Boot & Shoe Co. v. Graff, 3 Neb. Unof. 165, 91 N.W. 188 (1902).

25-1042 Attachment; county court; procedure.

25-1042. Attachment; county court; procedure.Sections 25-1039 to 25-1041 shall apply to actions before county courts. SourceLaws 1875, § 1, p. 44; R.S.1913, § 7771; C.S.1922, § 8715; C.S.1929, § 20-1042; R.S.1943, § 25-1042; Laws 1972, LB 1032, § 126.

25-1043 Attachment of lands in another county; copy to be filed with register of deeds.

25-1043. Attachment of lands in another county; copy to be filed with register of deeds.Whenever an attachment shall issue to any other county than the one in which the action is brought, and any lands shall be attached by virtue thereof, it shall be the duty of the officer attaching such property to make out a true copy of the order of attachment, and file the same in the office of the register of deeds of the county where the lands so attached are situated. He shall also certify upon the copy of said order of attachment that the same is a true copy of the original writ received by him, and he shall also endorse thereon the description of the property attached, and the time when the same was attached, under and by virtue of the original order of attachment. SourceG.S.1873, c. 57, § 1, p. 714; R.S.1913, § 7772; C.S.1922, § 8716; C.S.1929, § 20-1043; R.S.1943, § 25-1043.

25-1044 Attachment of lands in another county; writ and certificate; recording constitutes notice.

25-1044. Attachment of lands in another county; writ and certificate; recording constitutes notice.It shall be the duty of the register of deeds of the county, when the copy of the order of attachment has been filed as provided in section 25-1043, to record the same in the miscellaneous record, together with the certificate of the officers heretofore mentioned, and such copy of said orders of attachment and certificates so filed and recorded shall be sufficient notice to subsequent purchasers of the land so attached. SourceG.S.1873, c. 57, § 2, p. 714; R.S.1913, § 7773; C.S.1922, § 8717; C.S.1929, § 20-1044; R.S.1943, § 25-1044.

25-1045 Attachment; discharge; duty of clerk to certify; duty of register of deeds to record.

25-1045. Attachment; discharge; duty of clerk to certify; duty of register of deeds to record.If the order of attachment is discharged it shall be the duty of the clerk of the court in which the action is brought to certify that fact, together with the time when the order was discharged, to the register of deeds in whose office the copy of the order has been recorded as aforesaid, whereupon such register shall file such certificate and write across the record of such copy the word "discharged," and also the time of discharge as shown in the certificate. SourceG.S.1873, c. 57, § 3, p. 714; R.S.1913, § 7774; C.S.1922, § 8718; C.S.1929, § 20-1045; R.S.1943, § 25-1045.

25-1046 Attachment; copy of order; taxation as costs.

25-1046. Attachment; copy of order; taxation as costs.The officer, for making out said copy of the same, shall receive such compensation as is now allowed by law for similar services, to be taxed in the costs, unless otherwise ordered by the court. SourceG.S.1873, c. 57, § 4, p. 714; R.S.1913, § 7775; C.S.1922, § 8719; C.S.1929, § 20-1046; R.S.1943, § 25-1046.

25-1047 Attachment; order of discharge; when and how superseded.

25-1047. Attachment; order of discharge; when and how superseded.When an order is made discharging an attachment and any party affected thereby shall except to such order, the court or judge shall thereupon fix a time, not exceeding twenty days thereafter, within which such party may file his petition in error or perfect an appeal from such order during which time the attached property shall remain in the hands of the sheriff or other officer; Provided, no such appeal or petition in error shall operate to supersede such order unless such appellant or plaintiff in error shall, within the time so fixed, execute to the adverse party an undertaking, with sureties to be approved by the clerk or judge and conditioned for the payment of all damage which may be sustained by such adverse party, in consequence of such appeal or petition in error, in the event that such attachment be finally discharged as having been unlawfully issued. SourceG.S.1873, c. 57, § 1, p. 715; R.S.1913, § 7776; C.S.1922, § 8720; C.S.1929, § 20-1047; R.S.1943, § 25-1047.Annotations1. Bond2. Miscellaneous1. BondThis section does not violate due process under the second prong of the test stated in the U.S. Supreme Court case Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), because it allows continued attachment of the property at issue in only those instances in which the plaintiff posts a bond to protect the defendant from any damages suffered in the event that the order of discharge is affirmed on appeal. Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50 (1997).Filing petition and approval of bond in proper time continues lien; summons is not condition to superseding judgment. McDonald v. Bowman, 40 Neb. 269, 58 N.W. 704 (1894).If petition and bond are not filed in twenty days, garnishee is discharged. Lehnoff & Soennichsen v. Fisher, 32 Neb. 107, 48 N.W. 821 (1891).Bond is necessary only to preserve lien. Adams County Bank v. Morgan, 26 Neb. 148, 41 N.W. 993 (1889).Property must be returned at end of twenty days unless petition in error and bond filed. State ex rel. Rieschick v. Cunningham, 9 Neb. 146, 1 N.W. 1011 (1879).Party giving bond cannot deny property belonged to defendants. Metcalf v. Bockoven, 1 Neb. Unof. 822, 96 N.W. 406 (1901).2. MiscellaneousMotion that attachment writ be quashed, in form of special appearance, and order sustaining motion, entitle plaintiff to appeal. National Surety Co. v. Love, 102 Neb. 633, 168 N.W. 597 (1918); Legan v. Smith, 98 Neb. 682, 154 N.W. 228 (1915).Appeal continues lien and brings ruling of justice discharging attachment to district court for review. Rhodes v. Samuels, 67 Neb. 1, 93 N.W. 148 (1903).Applies to all courts. Osborne v. Canfield, 33 Neb. 330, 50 N.W. 167 (1891).Order overruling motion to discharge is not final order. Wilson v. Shepherd, 15 Neb. 15, 16 N.W. 826 (1883).

25-1048 Attachment; order of discharge; appeal; original action unaffected.

25-1048. Attachment; order of discharge; appeal; original action unaffected.The original action shall proceed to trial and judgment in every other respect as though no writ of error has been prosecuted. SourceG.S.1873, c. 57, § 2, p. 715; R.S.1913, § 7777; C.S.1922, § 8721; C.S.1929, § 20-1048; R.S.1943, § 25-1048.AnnotationsProper dissolution of an attachment issued on a contractual obligation not yet due terminates action. McCartney v. McCartney, 128 Neb. 671, 260 N.W. 184 (1935).Justice may proceed with original action though error proceedings taken on attachment. Rhodes v. Samuels, 67 Neb. 1, 93 N.W. 148 (1903).

25-1049 Attachment; claims not due; action authorized; when.

25-1049. Attachment; claims not due; action authorized; when.A creditor may bring an action on a claim before it is due and have an attachment against the property of the debtor (1) where a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; (2) where he is about to make such sale, conveyance, or disposition of his property with such fraudulent intent; or (3) where 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. SourceR.S.1867, Code § 237, p. 432; R.S.1913, § 7778; C.S.1922, § 8722; C.S.1922, § 20-1049; R.S.1943, § 25-1049.AnnotationsIn an action on a claim before it is due, an attachment is allowable only on grounds and conditions prescribed by statute. McCartney v. McCartney, 128 Neb. 671, 260 N.W. 184 (1935).Surety paying note before due may attach, if payee could. Danker v. Jacobs, 79 Neb. 435, 112 N.W. 579 (1907).When a debtor has committed any one of the fraudulent acts enumerated in this section, creditor may maintain an action on a claim before it is due. Cox & Cornell v. Peoria Mfg. Co., 42 Neb. 660, 60 N.W. 933 (1894).An action can be maintained on a claim before it is due only in the exceptional cases enumerated in this section. Caulfield v. Bittenger, 37 Neb. 542, 56 N.W. 302 (1893).Filing of affidavit is a request to grant writ and written application in addition is unnecessary. Winchell v. McKinzie, 35 Neb. 813, 53 N.W. 975 (1892).

25-1050 Attachment; claims not due; procedure; affidavit required.

25-1050. Attachment; claims not due; procedure; affidavit required.The attachment authorized by section 25-1049 may be granted by the court in which the action is brought, or by a judge thereof, or by the county judge of the county; but before such action shall be brought or such attachment shall be granted, an affidavit or affidavits shall be presented to the judge; such affidavits shall be based upon personal knowledge and shall state specific facts demonstrating (1) that plaintiff will possess a valid cause of action against the defendant when the claim becomes due, (2) the date when the claim shall be due, (3) the amount of the claim, (4) a description of the existence and approximate value of any of defendant's property known to the plaintiff to be within the jurisdiction of the court and not exempt from attachment, and (5) the existence of any one of the grounds for attachment enumerated in section 25-1049. SourceR.S.1867, Code § 238, p. 433; R.S.1913, § 7779; C.S.1922, § 8723; C.S.1929, § 20-1050; R.S.1943, § 25-1050; Laws 1980, LB 597, § 14. AnnotationsNeither county judge nor Supreme Judges can allow attachment in district court action when district judge is present in county. Ferson v. Armour & Co., 103 Neb. 809, 174 N.W. 425 (1919).Subsequent attaching creditors may intervene and contest attachment made without order. Deere, Wells & Co. v. Eagle Mfg. Co., 49 Neb. 385, 68 N.W. 504 (1896).Affidavit, not petition, must show grounds for attachment. Cox & Cornell v. Peoria Mfg. Co., 42 Neb. 660, 60 N.W. 933 (1894).Order allowing attachment is judicial act, and void if made on holiday. Merchants Nat. Bank of Omaha v. Jaffray, 36 Neb. 218, 54 N.W. 258 (1893).Order authorizing attachment is not void though seal of court is omitted; it is amendable. Winchell v. McKinzie, 35 Neb. 813, 53 N.W. 975 (1892).An attachment on debt before due can only be had in exceptional cases, and jurisdictional steps must be taken. Gamble v. Wilson, 33 Neb. 270, 50 N.W. 3 (1891).It is unnecessary for affiant to state he is plaintiff, agent, or attorney. Reed, Jones & Co. v. Bagley, 24 Neb. 332, 38 N.W. 827 (1888).Affidavit should state facts and not be merely in language of statute. Seidentopf v. Annabil, 6 Neb. 524 (1877).

25-1051 Attachment order in actions on claims not due; refusal requires dismissal of action.

25-1051. Attachment order in actions on claims not due; refusal requires dismissal of action.If the court or judge refuse to grant an order of attachment as provided in sections 25-1049 and 25-1050, the action shall be dismissed, but without prejudice to a future action; and in all such actions application for an attachment must be made. SourceR.S.1867, Code § 239, p. 433; R.S.1913, § 7780; C.S.1922, § 8724; C.S.1929, § 20-1051; R.S.1943, § 25-1051.AnnotationsDissolution of attachment terminates main action. Dayton Spice-Mills Co. v. Sloan, 49 Neb. 622, 68 N.W. 1040 (1896).Action depends upon attachment. Cox & Cornell v. Peoria Mfg. Co., 42 Neb. 660, 60 N.W. 933 (1894).

25-1052 Attachment order in actions on claims not due; amount; specification.

25-1052. Attachment order in actions on claims not due; amount; specification.The order of the court or judge granting the attachment shall specify the amount for which it is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim and the probable costs of the action. SourceR.S.1867, Code § 240, p. 433; R.S.1913, § 7781; C.S.1922, § 8725; C.S.1929, § 20-1052; R.S.1943, § 25-1052.AnnotationsOrder need not appear on face of writ. Armstrong v. Lynch, 29 Neb. 87, 45 N.W. 274 (1890).

25-1053 Repealed. Laws 1980, LB 597, § 18.

25-1053. Repealed. Laws 1980, LB 597, § 18.

25-1054 Attachment in actions on claims not due; judgment; when rendered.

25-1054. Attachment in actions on claims not due; judgment; when rendered.The plaintiff in such action shall not have judgment on his claim before it becomes due, and the proceedings on attachment may be conducted without delay. SourceR.S.1867, Code § 242, p. 433; R.S.1913, § 7783; C.S.1922, § 8727; C.S.1929, § 20-1054; R.S.1943, § 25-1054.AnnotationsAttachment will not support creditor's bill to set aside fraudulent conveyance. Ainsworth v. Roubal, 74 Neb. 723, 105 N.W. 248 (1905).Judgment cannot be entered before claim is due. Cox & Cornell v. Peoria Mfg. Co., 42 Neb. 660, 60 N.W. 933 (1894).Purchase-money mortgage given to secure particular debt remains valid in equity regardless of form the debt may assume, if it can be traced. Troyer v. Mundy, 60 F.2d 818 (8th Cir. 1932).

25-1055 Attachment in actions on claims not due; procedure in general.

25-1055. Attachment in actions on claims not due; procedure in general.The proceedings under general attachment provided for in sections 25-1004 to 25-1041, so far as they are applicable, shall regulate the attachments authorized on claims before due. SourceR.S.1867, Code § 243, p. 433; R.S.1913, § 7784; R.S.1922, § 8728; C.S.1929, § 20-1055; R.S.1943, § 25-1055.AnnotationsPrevious sections of this article regulate attachments before judgment. Insurance Co. of North America v. Maxim's of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965).

25-1056 Garnishment in aid of execution; when issued; procedure; continuing lien; when invalid; priority.

25-1056. Garnishment in aid of execution; when issued; procedure; continuing lien; when invalid; priority.(1) In all cases when a judgment has been entered by any court of record and the judgment creditor or his or her agent or attorney has filed an affidavit setting forth the amount due on the judgment, interest, and costs in the office of the clerk of the court where the judgment has been entered and that he or she has good reason to and does believe that any person, partnership, limited liability company, or corporation, naming him, her, or it, has property of and is indebted to the judgment debtor, the clerk shall issue a summons which shall set forth the amount due on the judgment, interest, and costs as shown in the affidavit and require such person, partnership, limited liability company, or corporation, as garnishee, to answer written interrogatories to be furnished by the plaintiff and to be attached to such summons respecting the matters set forth in section 25-1026. The summons shall be returnable within ten days from the date of its issuance and shall require the garnishee to answer within ten days from the date of service upon him or her. Except when wages are involved, the garnishee shall hold the property of every description and the credits of the defendant in his or her possession or under his or her control at the time of the service of the summons and interrogatories until the further order of the court. If the only property in the possession or under the control of the garnishee at the time of the service of the summons and interrogatories is credits of the defendant and the amount of such credits is not in dispute by the garnishee, then such garnishee shall only hold the credits of the defendant in his or her possession or under his or her control at the time of the service of the summons and interrogatories to the extent of the amount of the judgment, interest, and costs set forth in the summons until further order of the court. When wages are involved, the garnishee shall pay to the employee all disposable earnings exempted from garnishment by statute, and any disposable earnings remaining after such payment shall be retained by the garnishee until further order of the court. Thereafter, the service of the summons and interrogatories and all further proceedings shall be in all respects the same as is provided for in sections 25-1011 and 25-1026 to 25-1031.01 unless inconsistent with this section.(2) If it appears from the answer of the garnishee that the judgment debtor was an employee of the garnishee, that the garnishee otherwise owed earnings to the judgment debtor when the garnishment order was served, or that earnings would be owed within sixty days thereafter and there is not a successful written objection to the order or the answer of the garnishee filed, on application by the judgment creditor, the court shall order that the nonexempt earnings, if any, withheld by the garnishee after service of the order be transferred to the court for delivery to the judgment creditor who is entitled to such earnings. Except for garnishments in support of a person, the payments may be made payable to the judgment creditor or assignee and shall be forwarded to the issuing court to record the judgment payment prior to the court delivering the payment to the judgment creditor or assignee. The court shall, upon application of the judgment creditor, further order that the garnishment is a continuing lien against the nonexempt earnings of the judgment debtor. An order of continuing lien on nonexempt earnings entered pursuant to this section shall require the garnishee to continue to withhold the nonexempt earnings of the judgment debtor for as long as the continuing lien remains in effect.Beginning with the pay period during which the writ was served and while the continuing lien remains in effect, the garnishee shall deliver the nonexempt earnings to the court from which the garnishment was issued for each pay period or on a monthly basis if the garnishee so desires and shall deliver to the judgment debtor his or her exempt earnings for each pay period.(3) A continuing lien ordered pursuant to this section shall be invalid and shall have no force and effect upon the occurrence of any of the following:(a) The underlying judgment is satisfied in full or vacated or expires;(b) The judgment debtor leaves the garnishee's employ for more than sixty days;(c) The judgment creditor releases the garnishment;(d) The proceedings are stayed by a court of competent jurisdiction, including the United States Bankruptcy Court;(e) The judgment debtor has not earned any nonexempt earnings for at least sixty days;(f) The court orders that the garnishment be quashed; or(g) Ninety days have expired since service of the writ. The judgment creditor may extend the lien for a second ninety-day period by filing with the court a notice of extension during the fifteen days immediately prior to the expiration of the initial lien, and the continuing lien in favor of the initial judgment creditor shall continue for a second ninety-day period.(4)(a) To determine priority, garnishments and liens shall rank according to time of service.(b) Garnishments, liens, and wage assignments which are not for the support of a person shall be inferior to wage assignments for the support of a person. Garnishments which are not for the support of a person and liens shall be inferior to garnishments for the support of a person.(5) Only one order of continuing lien against earnings due the judgment debtor shall be in effect at one time. If an employee's wages are already being garnished pursuant to a continuing lien at the time of service of a garnishment upon an employer, the answer to garnishment interrogatories shall include such information along with the date of termination of such continuing lien and the title of the case from which such garnishment is issued. Except as provided in subsection (4) of this section, a continuing lien obtained pursuant to this section shall have priority over any subsequent garnishment or wage assignment. SourceR.S.1867, Code § 244, p. 433; R.S.1913, § 7785; C.S.1922, § 8729; C.S.1929, § 20-1056; R.S.1943, § 25-1056; Laws 1953, c. 68, § 1, p. 219; Laws 1955, c. 85, § 3, p. 255; Laws 1959, c. 101, § 4, p. 423; Laws 1972, LB 1032, § 127; Laws 1974, LB 737, § 1; Laws 1980, LB 597, § 15; Laws 1988, LB 1030, § 17; Laws 1993, LB 121, § 169; Laws 1995, LB 420, § 1; Laws 1996, LB 1048, § 1; Laws 1997, LB 771, § 1.Annotations1. Affidavit2. Summons3. Proceedings4. When section is not applicable1. AffidavitAffidavit upon mere belief is sufficient. Clarke v. Neb. Nat. Bank, 57 Neb. 314, 77 N.W. 805 (1899).Affidavit purporting not to be that of an individual is void; fact of agency should be sworn to. Jeary v. American Exchange Bank, 2 Neb. Unof. 657, 89 N.W. 771 (1902).2. SummonsAcknowledgment on back of summons is equivalent to service. Scott v. McDonald, 125 Neb. 803, 252 N.W. 323 (1934).After judgment, summons in garnishment from one county to another in aid of execution is unauthorized. Hinds State Bank v. Loffler, 113 Neb. 110, 202 N.W. 465 (1925).Where summons is issued same day execution is returned, it will be presumed latter was returned first. Brunke v. Gruben, 84 Neb. 806, 122 N.W. 37 (1909).If summons is issued before judgment, proceedings are void. Whitcomb v. Atkins, 40 Neb. 549, 59 N.W. 86 (1894).Return of officer "nulla bona" is conclusive for purposes of garnishment. Wilson v. Burney, 8 Neb. 39 (1878).3. ProceedingsGarnishment requires a judgment, and the dismissal of a suit pursuant to a settlement agreement does not suffice to allow a garnishment action to enforce the settlement. J.K. v. Kolbeck, 257 Neb. 107, 595 N.W.2d 875 (1999).Garnishment in aid of execution of a judgment is proper in Nebraska only when the garnishee has property of and is indebted to the judgment debtor, and the test for determining the liability of the garnishee defendant to the garnisheeing plaintiff is whether or not the facts would support a recovery by the principal defendant against the garnishee. Darr v. Long, 210 Neb. 57, 313 N.W.2d 215 (1988).Procedure for garnishment after domestic judgment and procedure for enforcement of foreign judgment compared. Sullivan v. Sullivan, 168 Neb. 850, 97 N.W.2d 348 (1959).Where garnishee denies indebtedness by answer and interrogatories are not propounded, garnishee should be discharged. Searcey v. Badgett, 137 Neb. 185, 288 N.W. 537 (1939).Judgment creditor of insolvent corporation cannot put himself in preferred position over other creditors. State ex rel. Sorensen v. State Bank of Omaha, 136 Neb. 880, 287 N.W. 762 (1939).In a garnishment proceeding in aid of execution, the answer and evidence of garnishee only are admissible in response to the summons in garnishment. Orchard & Wilhelm Co. v. North, 135 Neb. 39, 280 N.W. 272 (1938).A judicial order on a garnishee to turn over money or property in aid of execution can only be made upon an unqualified admission by him of a present indebtedness which execution debtor would be entitled to but for the garnishment. Shonsey Co. v. Belgrade-Hord Co., 133 Neb. 886, 277 N.W. 597 (1938); Early v. Belgrade-Hord Co., 133 Neb. 884, 277 N.W. 596 (1938).Law of garnishment is purely statutory and will be interpreted more strongly against garnishor. Central Market v. King, 132 Neb. 380, 272 N.W. 244 (1937).In garnishment proceedings in aid of execution the answer or evidence of the garnishee only may be taken by the court. Orchard & Wilhelm Co. v. North, 125 Neb. 723, 251 N.W. 895 (1933).Indebtedness of maker upon promissory note, before maturity, is not the subject of attachment; his obligation is not to payee but to holder, whoever he may be. Fisher v. O'Hanlon, 93 Neb. 529, 141 N.W. 157 (1913).If judgment is afterwards set aside, garnishment proceedings are dissolved. Clough v. Buck, 6 Neb. 343 (1877).4. When section is not applicableA garnishee bank waives its right of setoff if after notice of garnishment it permits the depositor to draw on the garnished account, reducing the account balance below the balance at the time of service or, if that balance is greater than the amount of judgment, below the amount of the judgment. United Seeds v. Eagle Green Corp., 223 Neb. 360, 389 N.W.2d 571 (1986).This section not applicable when garnishee is a foreign insurance company which has complied with statutory provisions to obtain certificate of authority to do business. Pupkes v. Sailors, 183 Neb. 784, 164 N.W.2d 441 (1969).

25-1057 Repealed. Laws 1953, c. 68, § 2.

25-1057. Repealed. Laws 1953, c. 68, § 2.

25-1058 Repealed. Laws 1953, c. 68, § 2.

25-1058. Repealed. Laws 1953, c. 68, § 2.

25-1059 Repealed. Laws 1953, c. 68, § 2.

25-1059. Repealed. Laws 1953, c. 68, § 2.

25-1060 Repealed. Laws 1953, c. 68, § 2.

25-1060. Repealed. Laws 1953, c. 68, § 2.

25-1061 Repealed. Laws 1953, c. 68, § 2.

25-1061. Repealed. Laws 1953, c. 68, § 2.

25-1062 Injunction, defined.

25-1062. Injunction, defined.The injunction provided by this code is a command to refrain from a particular act. It may be the final judgment in an action or may be allowed as a provisional remedy, subject to the provisions of sections 25-1062 to 25-1080, and when so allowed it shall be by order. The writ of injunction is abolished. SourceR.S.1867, Code § 250, p. 435; R.S.1913, § 7791; C.S.1922, § 8735; C.S.1929, § 20-1062; Laws 1941, c. 29, § 2, p. 133; C.S.Supp.,1941, § 20-1062; R.S.1943, § 25-1062.AnnotationsAn injunction to stay proceedings at law is not properly directed against a court or statutory tribunal before which the matter is pending, but lies solely against the parties to such proceeding. Massman Constr. Co. v. Nebraska Workmen's Compensation Court, 141 Neb. 270, 3 N.W.2d 639 (1942).An injunction is a command to refrain from a particular act. Conrad v. Kaup, 137 Neb. 900, 291 N.W. 687 (1940).The term injunction includes restraining order. Behrens v. Smith Baking Co., 130 Neb. 651, 266 N.W. 61 (1936).Order restrains only party against whom directed and subordinates. Boyd v. State, 19 Neb. 128, 26 N.W. 925 (1886).Because injunctions are provided for in this section of Chapter 25, a suit for an injunction is an action and not a special proceeding. O'Connor v. Kaufman, 6 Neb. App. 382, 574 N.W.2d 513 (1998).

25-1062.01 Director of Natural Resources, defined; notice to appropriator; how given.

25-1062.01. Director of Natural Resources, defined; notice to appropriator; how given.(1) The words Director of Natural Resources as used in this section and in sections 25-1064, 25-2159, and 25-2160 mean the Director of Natural Resources, State of Nebraska, his or her successor in office, or any agent, servant, employee, or officer of the State of Nebraska, now or hereafter exercising any powers or duties with respect to the administration of the irrigation water in the state, who may be a party in any court of the state in an action when the relief demanded involves the delivery of irrigation water.(2) Whenever notice by either registered or certified letter to an appropriator is required in such sections, the address of the appropriator shall be that recorded in the office of the Department of Natural Resources under section 46-230. SourceLaws 1941, c. 29, § 1, p. 133; C.S.Supp.,1941, § 20-10,111; R.S.1943, § 25-1062.01; Laws 1957, c. 242, § 14, p. 828; Laws 1957, c. 365, § 1, p. 1232; Laws 1986, LB 516, § 10; Laws 2000, LB 900, § 65.

25-1063 Temporary injunction; issuance; grounds.

25-1063. Temporary injunction; issuance; grounds.When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief or any part thereof consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce great or irreparable injury to the plaintiff, or when, during the litigation, it appears that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act, subject to the limitations of sections 25-1062 to 25-1080. It may also be granted in any case specially authorized by statute. SourceR.S.1867, Code § 251, p. 435; R.S.1913, § 7792; C.S.1922, § 8736; C.S.1929, § 20-1063; Laws 1941, c. 29, § 3, p. 134; C.S.Supp.,1941, § 20-1063; R.S.1943, § 25-1063; Laws 2002, LB 876, § 20.Annotations1. Grounds2. Miscellaneous1. GroundsInstallment Loan Act specially provides for a temporary injunction. State ex rel. Beck v. Associates Discount Corp., 162 Neb. 683, 77 N.W.2d 215 (1956).Where part of relief sought is to enjoin disposal of notes given for property, action may be brought in county where notes are held in escrow, and summons sent to other county. Bushee v. Keller, 96 Neb. 736, 148 N.W. 902 (1914).Landowner will be enjoined from building fence without useful purpose, to annoy neighbor. Bush v. Mockett, 95 Neb. 552, 145 N.W. 1001 (1914).Authorities should not ordinarily be enjoined from constructing necessary drains along highways. Wachter v. Lange, 94 Neb. 290, 143 N.W. 207 (1913).Injunctions will be granted against repeated or continued acts of trespass. Ayers v. Barnett, 93 Neb. 350, 140 N.W. 634 (1913); Munger v. Yeiser, 80 Neb. 285, 114 N.W. 166 (1907); Jacobson v. Van Boening, 48 Neb. 80, 66 N.W. 993 (1896); Shaffer v. Stull, 32 Neb. 94, 48 N.W. 882 (1891).Injunction is proper to protect enjoyment of easement. Ballinger v. Kinney, 87 Neb. 342, 127 N.W. 239 (1910).Injunction is properly granted to restrain enforcement of void order taxing costs and remove cloud on title. Weiler v. Fischer, 86 Neb. 614, 126 N.W. 296 (1910).Injunction will lie to restrain intruder interfering with incumbent of office. Hotchkiss v. Keck, 86 Neb. 322, 125 N.W. 509 (1910).Injunction does not lie to prevent passage of city or village ordinance. Chicago, R. I. & P. Ry. Co. v. City of Lincoln, 85 Neb. 733, 124 N.W. 142 (1910).Injunction is proper to restrain road overseer taking land for road prior to condemnation proceedings. Johnson v. Peterson, 85 Neb. 83, 122 N.W. 683 (1909).Injunction is proper to prevent collection of exempt wages under order of garnishment. Jones v. Union P. R. R. Co., 84 Neb. 121, 120 N.W. 946 (1909).Injunction is proper to restrain use of premises as disorderly house. Seifert v. Dillon, 83 Neb. 322, 119 N.W. 686 (1909).Injunction will be granted against waste by tenant for years or by his servants. Hayman v. Rownd, 82 Neb. 598, 118 N.W. 328 (1908).Injunction will not lie to restrain commission of single act of trespass. Cox v. Sheen, 82 Neb. 472, 118 N.W. 125 (1908).Injunction lies to restrain public officer from illegally creating debt or obligation. Roberts v. Thompson, 82 Neb. 458, 118 N.W. 106 (1908).Injunction will be granted to restrain illegal assessment of special taxes by city council. Barkley v. City of Lincoln, 82 Neb. 181, 117 N.W. 398 (1908).Injunction is not proper to restrain breach of contract where terms are in doubt or uncertain. Platte County Independent Tel. Co. v. Leigh Independent Tel. Co., 80 Neb. 41, 113 N.W. 799 (1907).Injunction will be allowed to prevent removal of buildings and fences. Lynch v. Egan, 67 Neb. 541, 93 N.W. 775 (1903); Pohlman v. Evangelical Lutheran Trinity Church, 60 Neb. 364, 83 N.W. 201 (1900).Injunction lies to prevent the obstruction or interference with irrigation ditch. Castle Rock Irrig. Canal & Water Power Co. v. Jurisch, 67 Neb. 377, 93 N.W. 690 (1903); Park v. Ackerman, 60 Neb. 405, 83 N.W. 173 (1900).Mandamus allowed in proper case to compel vacation. State ex rel. Cohn v. Jessen, 66 Neb. 515, 92 N.W. 584 (1902); Reynolds v. Graves, 66 Neb. 17, 92 N.W. 144 (1902).Where plain and adequate remedy may be had by motion in original proceedings, injunction to stay proceedings will not lie. Carson v. Jansen, 65 Neb. 423, 91 N.W. 398 (1902).Injunction will, in proper case, be allowed to prevent nuisance. Lowe v. Prospect Hill Cemetery Assn., 58 Neb. 94, 78 N.W. 488 (1899); Farrell v. Cook, 16 Neb. 483, 20 N.W. 720 (1884).Injunction should not be allowed to restrain enforcement of judgment when plaintiff has negligently failed to make defense at law. Losey v. Neidig, 52 Neb. 167, 71 N.W. 1067 (1897).Injunction is not proper remedy to test legality of municipal organization. Osborn v. Village of Oakland, 49 Neb. 340, 68 N.W. 506 (1896).Injunction will be allowed against unlawful establishing of highway through plaintiff's land. Welton v. Dickson, 38 Neb. 767, 57 N.W. 559 (1894).Injunction is not proper to restrain collection of taxes for mere irregularity. Touzalin v. City of Omaha, 25 Neb. 817, 41 N.W. 796 (1889).Injunction cannot be used to control discretion of public officer. School Dist. No. 1 of Red Willow Co. v. Wheeler, 25 Neb. 199, 41 N.W. 143 (1888).2. MiscellaneousInjunction can issue against void occupation tax. Best & Co., Inc. v. City of Omaha, 149 Neb. 868, 33 N.W.2d 150 (1948).Enforcement of rights should be sought by peaceable legal procedure, not by force or stealth. Wallace v. Kruzer, 95 Neb. 615, 146 N.W. 984 (1914).Restraining order is in aid only, and not part of main action. State ex rel. Keefe v. Graves, 82 Neb. 282, 117 N.W. 717 (1908)."Irreparable injury" defined. Cole v. Manners, 76 Neb. 454, 107 N.W. 777 (1906); Eidemiller Ice Co. v. Guthrie, 42 Neb. 238, 60 N.W. 717 (1894).Injunction does not lie to enforce bare legal right. Mohat v. Hutt, 75 Neb. 732, 106 N.W. 659 (1906).Affidavits must set forth the acts constituting the violation; general allegation not sufficient. Back v. State, 75 Neb. 603, 106 N.W. 787 (1906).Power of district court to punish for contempt discussed. Lowe v. Prospect Hill Cemetery Assn., 75 Neb. 85, 106 N.W. 429 (1905); Zimmerman v. State, 46 Neb. 13, 64 N.W. 375 (1895).Order of court without jurisdiction, or in excess of powers is void. State ex rel. Ellingsworth v. Carlson, 72 Neb. 837, 101 N.W. 1004 (1904).It is the duty of judge sitting at chambers to fix amount of supersedeas bond on entry of order of dissolution or modification. State ex rel. Plattsmouth Tel. Co. v. Baker, 62 Neb. 840, 88 N.W. 124 (1901); State ex rel. Downing v. Greene, 48 Neb. 327, 67 N.W. 162 (1896).There is a distinction between order of injunction and temporary restraining order. State ex rel. Plattsmouth Tel. Co. v. Baker, 62 Neb. 840, 88 N.W. 124 (1901).Petition should disclose with definiteness and particularity the threatened injury. Wabaska Elec. Co. v. City of Wymore, 60 Neb. 199, 82 N.W. 626 (1900); State Bank of Neb. of Seward v. Rohren, 55 Neb. 223, 75 N.W. 543 (1898).One who knowingly disobeys injunction, though he would have been entitled to vacate order, is liable to punishment for contempt. Hydock v. State, 59 Neb. 296, 80 N.W. 902 (1899); Zimmerman v. State, 46 Neb. 13, 64 N.W. 375 (1895); Wilber v. Woolley, 44 Neb. 739, 62 N.W. 1095 (1895).Adequate remedy at law discussed. Bankers Life Ins. Co. v. Robbins, 53 Neb. 44, 73 N.W. 269 (1897); Welton v. Dickson, 38 Neb. 767, 57 N.W. 559 (1894).Order may be dissolved on security. State ex rel. Downing v. Greene, 48 Neb. 327, 67 N.W. 162 (1896); State ex rel. Beecher v. Wakeley, 28 Neb. 431, 44 N.W. 488 (1890).Restraining order ceases to be operative on the expiration of the date fixed by its terms. State ex rel. Downing v. Greene, 48 Neb. 327, 67 N.W. 162 (1896).Pleadings must state facts; threatened acts must be alleged. Blakeslee v. Missouri P. Ry. Co., 43 Neb. 61, 61 N.W. 118 (1894); Lininger v. Glenn, 33 Neb. 187, 49 N.W. 1128 (1891).A mandatory injunction should not be granted except to prevent failure of justice, and only when right is clearly established. Buettgenbach v. Gerbig, 2 Neb. Unof. 889, 90 N.W. 654 (1902).

25-1064 Temporary injunctions and restraining orders; courts and judges empowered to issue; conditions; temporary restraining order granted without notice; requirements; actions involving irrigation w

25-1064. Temporary injunctions and restraining orders; courts and judges empowered to issue; conditions; temporary restraining order granted without notice; requirements; actions involving irrigation water; notice, how given.(1) The injunction may be granted at the time of commencing the action or at any time afterward before judgment by the Court of Appeals or the Supreme Court or any judge thereof. No restraining order or temporary injunction should be granted at the time of the commencement of the action if the relief demanded involves the delivery of irrigation water and the Director of Natural Resources, as defined in section 25-1062.01, is a party except in accordance with the procedure prescribed in subsection (5) of this section.(2) No temporary injunction may be granted without notice to the adverse party.(3) Any judge of the district court, except when the relief demanded involves the delivery of irrigation water and the director is a party, may grant a temporary restraining order without notice to the adverse party or his or her attorney only if (a) it clearly appears from specific facts shown by affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his or her attorney can be heard in opposition and (b) the applicant or his or her attorney certifies to the court in writing the efforts, if any, which have been made to give such notice and the reasons supporting the applicant's claim that such notice shall not be required.Every temporary restraining order granted without notice shall: (i) Be endorsed with the date and hour of issuance; (ii) be filed immediately in the office of the clerk of the district court and entered of record; (iii) define the injury and state why the injury is irreparable and why the order was granted without notice; and (iv) expire by its terms within such time after entry, not to exceed ten days, as the court fixes unless within such fixed time period the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents to an extension for a longer period. The reasons for the extension shall be entered of record. If a temporary restraining order is granted without notice, the motion for a temporary injunction shall be heard at the earliest possible time in the district court and shall take precedence over all matters except older matters of the same character. When the motion for a temporary injunction comes up for hearing, the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction, and if he or she does not do so, the district court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to such party as the district court may prescribe, the adverse party may appear and move for the dissolution or modification of the order, and in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.(4) In the absence from the county of the district judges, any judge of the county court, except when the relief demanded involves the delivery of irrigation water and the director is a party, may grant a temporary restraining order without notice to the adverse party or his or her attorney only if (a) it clearly appears from specific facts shown by affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his or her attorney can be heard in opposition and (b) the applicant or his or her attorney certifies to the court in writing the efforts, if any, which have been made to give such notice and the reasons supporting the applicant's claim that such notice shall not be required. The judge of the county court shall direct that reasonable notice be given to the party against whom the temporary restraining order is issued to attend at a specified time or place before the district court or any judge thereof to show cause why a temporary injunction should not be issued.Every temporary restraining order granted without notice shall: (i) Be endorsed with the date and hour of issuance; (ii) be filed immediately in the office of the clerk of the district court and entered of record; (iii) define the injury and state why the injury is irreparable and why the order was granted without notice; and (iv) expire by its terms within such time after entry, not to exceed ten days, as the judge of the county court fixes unless within such fixed time period the order, for good cause shown, is extended by the district court for a like period or unless the party against whom the order is directed consents to an extension for a longer period. The reasons for the extension shall be entered of record.(5) The Supreme Court or any judge thereof, the Court of Appeals or any judge thereof, the district court or any judge thereof, or a judge of the county court, if and when he or she has jurisdiction, shall have no power, when the relief demanded involves the delivery of irrigation water and the director is a party, to grant a restraining order or temporary injunction at the time of the commencement of the action, except when notice by either registered or certified letter has been mailed seventy-two hours prior to the time of hearing to the director and the division supervisor in the water division created by section 61-212 in which the action is brought and, in the manner provided in section 25-1062.01, to all appropriators whose rights to the delivery of irrigation water might in any manner be affected, of the time and place of the hearing. At the hearing on the restraining order or temporary injunction, the director, appropriators, or riparian owners shall be entitled to be heard, in person or by their attorney or attorneys, on the question of whether the restraining order should be granted and, if so, in what amount the bond or undertaking is to be fixed.(6) Any person, natural or artificial, injured or likely to be injured by the granting of a restraining order may intervene in the action at any stage of the proceedings and become a party to the litigation if it involves the delivery of irrigation water and the director is a party. SourceR.S.1867, Code § 252, p. 435; Laws 1913, c. 65, § 1, p. 198; R.S.1913, § 7793; C.S.1922, § 8737; C.S.1929, § 20-1064; Laws 1941, c. 29, § 4, p. 134; C.S.Supp.,1941, § 20-1064; R.S.1943, § 25-1064; Laws 1955, c. 87, § 1, p. 260; Laws 1957, c. 242, § 15, p. 828; Laws 1957, c. 365, § 2, p. 1232; Laws 1986, LB 516, § 11; Laws 1991, LB 732, § 44; Laws 2000, LB 900, § 66. AnnotationsNotwithstanding section 24-517(5), the district court has jurisdiction in injunctive actions to enforce zoning ordinances. Village of Springfield v. Hevelone, 195 Neb. 37, 236 N.W.2d 811 (1975).Supreme Court may grant a temporary injunction in proceedings by state under Installment Loan Act. State ex rel. Beck v. Associates Discount Corp., 162 Neb. 683, 77 N.W.2d 215 (1956).District judge has power to allow temporary injunction, notwithstanding provisions of this section. State ex rel. Hahler v. Grimes, 96 Neb. 719, 148 N.W. 942 (1914).Affidavit not stating Supreme Judges were absent is sufficient to allow county judge to act, latter cannot issue perpetual injunction. State ex rel. Minden-Edison Light & Power Co. v. Dungan, 89 Neb. 738, 132 N.W. 305 (1911).County judge may grant temporary restraining order if district judge is absent. State ex rel. Downing v. Greene, 48 Neb. 327, 67 N.W. 162 (1896).Violation of injunction allowed by county judge is contempt for district court. Wilber v. Woolley, 44 Neb. 739, 62 N.W. 1095 (1895).County judge cannot punish for contempt of violation of restraining order. Johnson v. Bouton, 35 Neb. 898, 53 N.W. 995 (1892).Judge of Supreme Court may grant temporary injunction. Calvert v. State, 34 Neb. 616, 52 N.W. 687 (1892).District judge cannot grant injunction out of district unless judge therein is absent or unable to act; injunction void. Ellis v. Karl, 7 Neb. 381 (1878).Order granted by county judge before petition filed is valid, where both filed forthwith. Commercial State Bank of Crawford v. Ketcham, 3 Neb. Unof. 839, 92 N.W. 998 (1902).

25-1064.01 Order granting an injunction; restraining order; requirements.

25-1064.01. Order granting an injunction; restraining order; requirements.Every order granting an injunction and every restraining order shall: (1) Set forth the reasons for its issuance; (2) be specific in terms; (3) describe in reasonable detail, and not by reference to the pleading or other document, the act or acts sought to be restrained; and (4) be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. SourceLaws 1986, LB 516, § 12; Laws 2002, LB 876, § 21.

25-1064.02 Sections, how construed.

25-1064.02. Sections, how construed.Sections 25-1062.01 and 25-1064 to 25-1064.02 shall in no way limit a person's right to an injunction or temporary restraining order if such remedies are specifically authorized by statute. SourceLaws 1986, LB 516, § 13.

25-1065 Repealed. Laws 1986, LB 516, § 17.

25-1065. Repealed. Laws 1986, LB 516, § 17.

25-1066 Repealed. Laws 1986, LB 516, § 17.

25-1066. Repealed. Laws 1986, LB 516, § 17.

25-1067 Injunctions; security.

25-1067. Injunctions; security.No injunction, unless provided by special statute, shall operate until the party obtaining the same shall give an undertaking, executed by one or more sufficient sureties, who shall justify as provided in sections 25-2222 and 25-2223. The undertaking shall be approved by the clerk of the court granting such injunction, in an amount to be fixed by the court or judge allowing the same, to secure to the party enjoined the damages he may sustain, if it be finally decided that the injunction ought not to have been granted. SourceR.S.1867, Code § 255, p. 435; R.S.1913, § 7796; C.S.1922, § 8740; C.S.1929, § 20-1067; Laws 1941, c. 29, § 7, p. 136; C.S.Supp.,1941, § 20-1067; R.S.1943, § 25-1067. Cross ReferencesState officers and departments, not required to give injunction bond, see section 25-21,216. Annotations1. Filing and approval of bond2. Effect of order3. Dissolution of order4. Suit on bond5. Miscellaneous1. Filing and approval of bondInjunction is not effective for any purpose until bond is given and approved. Johnson v. Bouton, 35 Neb. 898, 53 N.W. 995 (1892).If bond is not given, adverse party may disregard order. Baker v. Meisch, 29 Neb. 227, 45 N.W. 685 (1890).2. Effect of orderDissolution of injunction is adjudication that same ought not to have been granted; sureties cannot complain that order is broader than application. Gibson v. Reed, 54 Neb. 309, 75 N.W. 1085 (1898).3. Dissolution of orderWhere injunction against collection of judgment was dissolved, measure of damages in suit on bond was reduction in amount collectible, not amount of judgment. Stull Bros. v. Beddeo, 78 Neb. 119, 112 N.W. 315 (1907).When order is dissolved, action accrues on bond; striking cause from files for failure to revive, dissolves. Humfeldt v. Moles, 63 Neb. 448, 88 N.W. 655 (1902).Expenses of unsuccessful attempt to dissolve injunction are not recoverable. Pollock v. Whipple, 57 Neb. 82, 77 N.W. 355 (1898).Attorney's fees for dissolution of restraining order are generally not recoverable. Carnes v. Heimrod, 45 Neb. 364, 63 N.W. 809 (1895).4. Suit on bondA party enjoined may recover damages on a temporary injunction bond only if it be finally decided that the injunction ought not to have been granted. State ex rel. Douglas v. Ledwith, 204 Neb. 6, 281 N.W.2d 729 (1979).In absence of statute authorizing court to assess damages resulting to defendant from issuance of restraining order on dissolving such order, defendant must resort to independent action on plaintiff's bond. Higgins v. Adelson, 131 Neb. 820, 270 N.W. 502 (1936).Voluntary dismissal entitles defendant to sue on bond. Gyger v. Courtney, 59 Neb. 555, 81 N.W. 437 (1900).5. MiscellaneousAttorneys' fees cannot be recovered as damages in suit on bond where injunction proceedings are only auxiliary to main case. Williams v. Hallgren, 149 Neb. 621, 31 N.W.2d 737 (1948).Attorney's fees in trial of case are not recoverable on bond where injunction is ancillary; limited to fees for dissolving injunction. Darling v. McBride, 86 Neb. 481, 125 N.W. 1088 (1910).No action can be maintained on temporary injunction bond until final decree in cause wherein bond is given. Johnson v. Bouton, 56 Neb. 626, 77 N.W. 57 (1898).

25-1068 Service of order of injunction; when not required.

25-1068. Service of order of injunction; when not required.The order of injunction shall be addressed to the party enjoined, shall state the injunction, and shall be issued by the clerk. Where the injunction is allowed at the commencement of the action, the clerk shall endorse upon the summons injunction allowed, and it shall not be necessary to issue the order of injunction; nor shall it be necessary to issue the same where notice of the application therefor has been given to the party enjoined. The service of the summons so endorsed, or the notice of the application for an injunction, shall be notice of its allowance. SourceR.S.1867, Code § 256, p. 436; R.S.1913, § 7797; C.S.1922, § 8741; C.S.1929, § 20-1068; R.S.1943, § 25-1068. Cross ReferencesFor endorsement by sheriff showing time he or she received the summons, see section 23-1701.05. AnnotationsSummons endorsed, injunction allowed, is sufficient notice of order. State ex rel. Minden-Edison Light & Power Co. v. Dungan, 89 Neb. 738, 132 N.W. 305 (1911).

25-1069 Service of order; return.

25-1069. Service of order; return.Where the injunction is allowed during litigation and without notice of the application therefor, the order of injunction shall be issued, and the sheriff shall forthwith serve the same upon each party enjoined, in the manner prescribed for serving a summons, and make return thereof without delay. SourceR.S.1867, Code § 257, p. 436; R.S.1913, § 7798; C.S.1922, § 8742; C.S.1929, § 20-1069; R.S.1943, § 25-1069.

25-1070 Injunctions; when binding.

25-1070. Injunctions; when binding.An injunction binds the party from the time he has notice thereof and the undertaking required of the applicant therefor is executed. SourceR.S.1867, Code § 258, p. 436; R.S.1913, § 7799; C.S.1922, § 8743; C.S.1929, § 20-1070; R.S.1943, § 25-1070.

25-1071 Injunctions not granted; when.

25-1071. Injunctions not granted; when.No injunction shall be granted by a judge, after a motion therefor has been overruled on the merits of the application by this court; and where it has been refused by the court in which the action is brought, or a judge thereof, it shall not be granted to the same applicant by a court of inferior jurisdiction or any judge thereof. SourceR.S.1867, Code § 259, p. 436; R.S.1913, § 7800; C.S.1922, § 8744; C.S.1929, § 20-1071; R.S.1943, § 25-1071.

25-1072 Enforcement; disobedience; punishment.

25-1072. Enforcement; disobedience; punishment.An injunction granted by a judge may be enforced as the act of the court. Disobedience of an injunction may be punished as a contempt by the court, or by any judge who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied by affidavit of the breach of the injunction, against the party guilty of the same; and he may be required, in the discretion of the court or judge, to pay a fine not exceeding two hundred dollars, for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply with such requirements, or be otherwise legally discharged. SourceR.S.1867, Code § 260, p. 436; R.S.1913, § 7801; C.S.1922, § 8745; C.S.1929, § 20-1072; R.S.1943, § 25-1072.Annotations1. Enforcement2. Miscellaneous1. EnforcementA party who disobeys an injunction may be required, in the discretion of the court, to make immediate restitution to the party injured. Kasparek v. May, 178 Neb. 425, 133 N.W.2d 614 (1965).Violation of injunction against unlawful practice of law could be punished as contempt of court. State ex rel. Beck v. Lush, 170 Neb. 376, 103 N.W.2d 136 (1960).Operators of motion picture theatres who had been enjoined from operating lottery referred to as "bank night" were guilty of contempt by carrying on similar scheme known as "prosperity night." State ex rel. Hunter v. Omaha Motion Picture Exhibitors Assn., 139 Neb. 312, 297 N.W. 547 (1941).Disobedience of an injunction must be willful before a breach thereof may be punished as a contempt. Whipple v. Nelson, 138 Neb. 514, 293 N.W. 382 (1940).Information must be specific; court may fine and imprison; judge at chambers cannot imprison. Back v. State, 75 Neb. 603, 106 N.W. 787 (1906).Judge in vacation may punish for contempt. Nebraska Children's Home Society v. State, 57 Neb. 765, 78 N.W. 267 (1899).Void injunction is not enforceable by contempt proceedings; is only voidable contra. Wilber v. Woolley, 44 Neb. 739, 62 N.W. 1095 (1895).2. MiscellaneousThis section is invalid and unenforceable as a limitation upon the inherent power of the court to punish for contempt. State ex rel. Beck v. Frontier Airlines, Inc., 174 Neb. 172, 116 N.W.2d 281 (1962).Procedure is authorized for punishment for violation of mandatory injunction. Meier v. Nelsen, 156 Neb. 666, 57 N.W.2d 273 (1953).One who is in privity with party enjoined and has knowledge of the injunction is bound thereby. Wilcox v. Ashford, 131 Neb. 338, 268 N.W. 81 (1936).Conviction under contempt proceedings can be reviewed in Supreme Court only by filing petition in error. Gentle v. Pantel Realty Co., 120 Neb. 630, 234 N.W. 574 (1931).Contempt proceeding is in nature of criminal action; reviewable on error. Zimmerman v. State, 46 Neb. 13, 64 N.W. 375 (1895).A county judge has no power to commit for contempt a party who has violated an injunction allowed by him in an action in district court. Johnson v. Bouton, 35 Neb. 898, 53 N.W. 995 (1892).

25-1073 Motion for additional security; vacation.

25-1073. Motion for additional security; vacation.A party enjoined may, at any time before judgment, upon reasonable notice to the party who has obtained the injunction, move the court for additional security; and if it appears that the surety in the undertaking has removed from the state, or is insufficient, the court may vacate the injunction, unless in a reasonable time sufficient security be given. SourceR.S.1867, Code § 261, p. 436; R.S.1913, § 7802; C.S.1922, § 8746; C.S.1929, § 20-1073; R.S.1943, § 25-1073.

25-1074 Hearings; affidavits.

25-1074. Hearings; affidavits.On the hearing of an application for an injunction, each party may read affidavits. All affidavits shall be filed. SourceR.S.1867, Code § 262, p. 437; R.S.1913, § 7803; C.S.1922, § 8747; C.S.1929, § 20-1074; R.S.1943, § 25-1074.AnnotationsThis section permits affidavits on application for injunction, but not on final hearing. Francisco v. Furry, 82 Neb. 754, 118 N.W. 1102 (1908).

25-1075 Injunction without notice; vacation; modification; notice.

25-1075. Injunction without notice; vacation; modification; notice.If the injunction is granted without notice, the defendant, at any time before the trial, may apply, upon notice, to the court in which the action is brought or any judge thereof, to vacate or modify the same. The application may be made upon the complaint or petition and affidavits upon which the injunction is granted, or upon affidavits on the part of the party enjoined, with or without answer. The order of the judge allowing, dissolving, or modifying an injunction shall be returned to the office of the clerk of the court in which the action is brought and recorded and obeyed as if made by the court. SourceR.S.1867, Code § 263, p. 437; R.S.1913, § 7804; C.S.1922, § 8748; C.S.1929, § 20-1075; R.S.1943, § 25-1075; Laws 2002, LB 876, § 22. AnnotationsJudge at chambers cannot dispose of main case. Browne v. Edwards & McCullough Lumber Co., 44 Neb. 361, 62 N.W. 1070 (1895).

25-1076 Injunction without notice; showing and counter-showing; affidavits.

25-1076. Injunction without notice; showing and counter-showing; affidavits.If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the injunction was granted. SourceR.S.1867, Code § 264, p. 437; R.S.1913, § 7805; C.S.1922, § 8749; C.S.1929, § 20-1076; R.S.1943, § 25-1076.AnnotationsPlaintiff should be allowed reasonable time to procure counter affidavits. Armstrong v. Sweeney, 65 Neb. 676, 91 N.W. 570 (1902).

25-1077 Counterclaim; injunction upon.

25-1077. Counterclaim; injunction upon.A defendant may obtain an injunction upon an answer in the nature of a counterclaim. He shall proceed in the manner prescribed in sections 25-1062 to 25-1080. SourceR.S.1867, Code § 265, p. 437; R.S.1913, § 7806; C.S.1922, § 8750; C.S.1929, § 20-1077; R.S.1943, § 25-1077.

25-1078 Temporary injunction; modification; dissolution; supersedeas bond.

25-1078. Temporary injunction; modification; dissolution; supersedeas bond.In case of the dissolution or modification by any court, or any judge at chambers, of any temporary order of injunction which has been or may hereafter be granted, the court or judge so dissolving or modifying said order of injunction shall, at the same time, fix a reasonable sum as the amount of a supersedeas bond, which the person or persons applying for said injunction may give, and prevent the doing of the act or acts, the commission of which was, or may be sought to be restrained by the injunction so dissolved and modified. SourceLaws 1889, c. 27, § 1, p. 373; R.S.1913, § 7807; C.S.1922, § 8751; C.S.1929, § 20-1078; R.S.1943, § 25-1078.AnnotationsTemporary restraining order cannot be continued in effect by supersedeas bond after denial of permanent injunction. Harbin v. Love, 119 Neb. 76, 227 N.W. 145 (1929).Supersedeas is allowable on dissolution of temporary injunction. State ex rel. Minden-Edison Light & Power Co. v. Dungan, 89 Neb. 738, 132 N.W. 305 (1911).Supersedeas should not be allowed on dissolution of temporary restraining order. State ex rel. Beecher v. Wakeley, 28 Neb. 431, 44 N.W. 488 (1890).Order dissolving injunction is appealable only after final judgment in action. Horst v. Board of Supervisors of Dodge County, 5 Neb. Unof. 410, 98 N.W. 822 (1904).Order which does not render first less effective does not modify injunction. State ex rel. Plattsmouth Telephone Co. v. Fawcett, 2 Neb. Unof. 503, 89 N.W. 273 (1902).

25-1079 Temporary injunction; modification; dissolution; supersedeas bond; when executed; form; contents.

25-1079. Temporary injunction; modification; dissolution; supersedeas bond; when executed; form; contents.Such supersedeas bond shall be executed on or before twenty days from the time of the order dissolving or modifying such injunction, shall be signed by one or more sufficient sureties to be approved by the clerk of the court, and shall be conditioned that the party or parties who obtained such injunction shall pay to the defendant, or defendants, all damages, which he or they shall sustain by reason of said injunction, if it be finally decided that such injunction ought not to have been granted. SourceLaws 1889, c. 27, § 2, p. 374; R.S.1913, § 7808; C.S.1922, § 8752; C.S.1929, § 20-1079; R.S.1943, § 25-1079.AnnotationsAll reasonable damages may be recovered by an enjoined party if the injunction was granted in error. Reasonable attorney fees incurred in dissolving the bond may also be recovered. Koch v. Aupperle, 277 Neb. 560, 763 N.W.2d 415 (2009).

25-1080 Temporary injunction; modification; dissolution; supersedeas bond; effect.

25-1080. Temporary injunction; modification; dissolution; supersedeas bond; effect.Such supersedeas bond shall stay the doing of the act or acts sought to be restrained by the suit, and continue such injunction in force until the case is heard and finally determined by the judgment, decree or final order of the court in term time. SourceLaws 1889, c. 27, § 3, p. 374; R.S.1913, § 7809; C.S.1922, § 8753; C.S.1929, § 20-1080; R.S.1943, § 25-1080.

25-1081 Appointment of receiver; grounds.

25-1081. Appointment of receiver; grounds.A receiver may be appointed by the district court (1) in an action by a vendor to vacate a fraudulent purchase of property, by a creditor to subject any property or fund to his or her claim, or between partners, limited liability company members, or others jointly owning or interested in any property or fund on the application of any party to the suit when the property or fund is in danger of being lost, removed, or materially injured, (2) in an action for the foreclosure of a mortgage or in an action to foreclose a trust deed as a mortgage when the mortgaged property or property subject to the trust deed is in danger of being lost, removed, or materially injured or is probably insufficient to discharge the mortgage debt secured by the mortgage or trust deed, (3) in connection with the exercise of the power of sale under a trust deed and following the filing of a notice of default under the Nebraska Trust Deeds Act when the property subject to the trust deed is in danger of being lost, removed, or materially injured or is probably insufficient to discharge the debt secured by the trust deed, (4) in an action brought pursuant to section 52-1705 to enforce a written assignment of rents provision contained in any agreement and the agreement provides for the appointment of a receiver, (5) in any other case in which a mortgagor or trustor has agreed in writing to the appointment of a receiver, (6) after judgment or decree to carry the judgment into execution, to dispose of the property according to the decree or judgment, or to preserve it during the pendency of an appeal, (7) in all cases provided for by special statutes, and (8) in all other cases when receivers have heretofore been appointed by the usages of courts of equity. SourceR.S.1867, Code § 266, p. 437; R.S.1913, § 7810; C.S.1922, § 8754; C.S.1929, § 20-1081; R.S. 1943, § 25-1081; Laws 1991, LB 732, § 45; Laws 1993, LB 121, § 170; Laws 1994, LB 884, § 53; Laws 2007, LB99, § 1. Cross ReferencesAttachment, receiver appointed, when, see sections 25-1018 to 25-1022.Foreclosure of mortgages, see sections 25-2137 to 25-2155.Judgment debtor, receiver of property, when, see section 25-1573.Nebraska Trust Deeds Act, see section 76-1018. Annotations1. Power to appoint2. Mortgage foreclosure3. Insolvent corporation4. Miscellaneous1. Power to appointPursuant to subsection (2) of this section, district court did not abuse its discretion when it denied a request to appoint a receiver for under-secured debt in the absence of other evidence that the party's interest in the property were in jeopardy. McCook Nat. Bank v. Myers, 243 Neb. 853, 503 N.W.2d 200 (1993).Appointment of receiver during pendency of foreclosure action sustained as warranted by the facts and was not an abuse of the court's discretion. O'Neill Production Credit Assn. v. Putnam Ranches, Inc., 198 Neb. 145, 251 N.W.2d 884 (1977).Supreme Court may appoint a receiver in proceedings by state under Installment Loan Act. State ex rel. Beck v. Associates Discount Corp., 162 Neb. 683, 77 N.W.2d 215 (1956).District court cannot appoint receiver to carry out mandatory injunction. Frese v. Michalec, 151 Neb. 57, 36 N.W.2d 494 (1949).Request for appointment of receiver is addressed to sound, equitable discretion of court. Cressman v. Bonham, 129 Neb. 201, 260 N.W. 818 (1935).Receivership is provisional and ancillary; generally dependent upon main action. Smiley v. Sioux Beet Syrup Co., 71 Neb. 586, 101 N.W. 253 (1904).Petition for receiver is addressed to sound discretion of court. McKenzie v. Beaumont, 70 Neb. 179, 97 N.W. 225 (1903).Appointment of receiver is in nature of equitable execution. Sanford v. Anderson, 69 Neb. 249, 95 N.W. 632 (1903).Judge at chambers may appoint. Morris v. Linton, 62 Neb. 731, 87 N.W. 958 (1901).Section is merely declaratory of power existing in court; no receiver in ejectment. Smith v. White, 62 Neb. 56, 86 N.W. 930 (1901).Application usually should be made to district court and not to Supreme Court. Eastman v. Cain, 45 Neb. 48, 63 N.W. 123 (1895).Grounds should exist at time of appointment; should not appoint in final decree. Chadron Banking Co. v. Mahoney, 43 Neb. 214, 61 N.W. 594 (1895).Plaintiff may have receiver appointed, pending appeal from part of decree. Benedict v. T. L. V. Land & Cattle Co., 4 Neb. Unof. 471, 94 N.W. 962 (1903).Authority of receiver appointed by court of competent jurisdiction cannot be collaterally attacked. Miller v. Brown, 1 Neb. Unof. 754, 95 N.W. 797 (1901).2. Mortgage foreclosureWhere receiver is appointed in mortgage foreclosure proceedings, rents and profits collected from the mortgaged premises by receiver may be applied to satisfaction of mortgage debt. Federal Farm Mortgage Corporation v. Ganser, 146 Neb. 635, 20 N.W.2d 689 (1945).Where mortgage was in excess of reasonable value of land, appointment of receiver was justified. Modisett v. Campbell, 144 Neb. 222, 13 N.W.2d 126 (1944).Ordinarily a receiver will not be appointed in foreclosure suit when mortgaged property is homestead of mortgagor. First Trust Co. of Lincoln v. Bauer, 128 Neb. 725, 260 N.W. 194 (1935).Receiver in mortgage foreclosure proceeding is appointed for the purpose only of conserving the mortgaged property and applying the rents and profits to the satisfaction of the debt. Wells v. Farmers State Bank of Overton, 124 Neb. 386, 246 N.W. 714 (1933).Appointment of receiver in foreclosure action hereunder is ancillary to main action and such appointment must be made in the foreclosure proceeding by the court having jurisdiction thereof. Prudential Ins. Co. v. Bliss, 123 Neb. 578, 243 N.W. 842 (1932).Court is not authorized to appoint receiver in foreclosure action for property of mortgagor bank already in custody of another receiver in control of bank's entire assets. Wells v. Farmers' State Bank of Overton, 121 Neb. 462, 237 N.W. 402 (1931), overruled in part in Prudential Ins. Co. v. Bliss, 123 Neb. 578, 243 N.W. 842 (1932).Where land is insufficient to pay mortgage, and security is endangered by unpaid taxes, appointment of receiver is justified. Lackey v. Yekel, 113 Neb. 382, 203 N.W. 542 (1925); Philadelphia Mortgage & Trust Co. v. Oyler, 61 Neb. 702, 85 N.W. 899 (1901).Mortgagee in possession under agreement to manage premises may not apply for receiver. Hayes v. Christiansen, 105 Neb. 586, 181 N.W. 379 (1921).Court may appoint receiver to collect rents for some mortgagees in action and not for others. Goddard v. Clarke, 81 Neb. 373, 116 N.W. 41 (1908).Appointment may be made pending appeal from confirmation of sale. Buck v. Stuben, 63 Neb. 273, 88 N.W. 483 (1901).Solvency of mortgagor is immaterial, where property insufficient to pay mortgage debt; mortgagee entitled to collect out of his security, and not to be forced to other remedies. Waldron v. First Nat. Bank of Greenwood, 60 Neb. 245, 82 N.W. 856 (1900); Philadelphia M. & T. Co. v. Goos, 47 Neb. 804, 66 N.W. 843 (1896).Appointment of receiver is only method of reaching rents and profits pending foreclosure. Huston v. Canfield, 57 Neb. 345, 77 N.W. 763 (1899).Receiver should not be granted against widow of mortgagor of homestead, under statute relating to homestead rights of survivor. Joslin v. Williams, 3 Neb. Unof. 194, 93 N.W. 701 (1903).Receiver should be denied where mortgaged property is homestead. Johnson v. Young, 1 Neb. Unof. 28, 95 N.W. 497 (1901).3. Insolvent corporationThis section was incorporated by reference in procedure for liquidation of insolvent bank. State ex rel. Sorensen v. Nebraska State Bank of Bloomfield, 124 Neb. 449, 247 N.W. 31 (1933).Where receiver of insolvent bank was appointed pursuant to notice, and receiver qualified and performed legal duties, validity of appointment cannot be collaterally questioned. Brownell v. Adams, 121 Neb. 304, 236 N.W. 750 (1931).Court of equity has power to appoint receiver for corporation operating at loss with insufficient assets to pay preferred stockholders in full. Miller v. M. E. Smith Bldg. Co., 118 Neb. 5, 223 N.W. 277 (1929).May appoint receiver for insurance company dissolved under statute. State ex rel. Barton v. Farmers & Merchants Ins. Co., 90 Neb. 664, 134 N.W. 284 (1912).Receiver for corporation should not be appointed on complaint of minority stockholder, who alleges mismanagement by corporate officers. Miller v. Kitchen, 73 Neb. 711, 103 N.W. 297 (1905).Court may appoint receiver for insolvent corporation where receivers have been so appointed by the usages of courts of equity. Williams v. Turner, 63 Neb. 575, 88 N.W. 668 (1902).Where fraudulent mismanagement of property of corporation by its officers is shown, receiver may be appointed. Ponca Mill Co. v. Mikesell, 55 Neb. 98, 75 N.W. 46 (1898).4. MiscellaneousAppointment of receiver upon application of a simple contract creditor who has not reduced his claim to judgment is void. Gentsch, Inc. v. Burnett, 173 Neb. 820, 115 N.W.2d 446 (1962).Word "creditor" does not apply to holder of tax certificate. Walker v. Fitzgerald, 69 Neb. 52, 95 N.W. 32 (1903).Defendant liable for deficiency judgment may apply for receiver. Philadelphia Mortgage & Trust Co. v. Oyler, 61 Neb. 702, 85 N.W. 899 (1901).Injunction is not a bar to appointment of receiver by another court where parties are not the same. Carter v. Dime Savings Bank, 61 Neb. 587, 86 N.W. 29 (1901).A receiver for a partnership may be appointed in cases of insolvency, dissention, probability of waste, or when dissolution is necessary. Veith v. Ress, 60 Neb. 52, 82 N.W. 116 (1900).Receivers should not be allowed for insolvency of debtor where property is then sufficient. Laune v. Hauser, 58 Neb. 663, 79 N.W. 555 (1899).Ill will and hostility between joint owners is insufficient. Lamaster v. Elliott, 53 Neb. 424, 73 N.W. 925 (1898).

25-1082 Notice of application for appointment; service.

25-1082. Notice of application for appointment; service.No receiver shall be appointed except in a suit actually commenced and pending, and after notice to all parties to be affected thereby, of the time and place of the application, the names of the proposed receiver, and of his or her proposed sureties, and of the proposed sureties of the applicant. Such notice shall state upon what papers the application is based, and be served at least five days before the proposed hearing upon the adverse party in the manner provided for service of a summons in a civil action or upon the adverse party's attorney in the manner provided for service of a notice on an attorney. SourceR.S.1867, Code § 267, p. 438; R.S.1913, § 7811; C.S.1922, § 8755; Laws 1927, c. 49, § 1, p. 199; C.S.1929, § 20-1082; Laws 1939, c. 17, § 1, p. 96; C.S.Supp.,1941, § 20-1082; R.S.1943, § 25-1082; Laws 1983, LB 447, § 40.Annotations1. Notice2. Miscellaneous1. NoticeValidity of order of appointment of bank receiver cannot be collaterally questioned, where receiver was appointed pursuant to notice and qualified and performed legal duties. Brownell v. Adams, 121 Neb. 304, 236 N.W. 750 (1931).Where action for foreclosure of mortgage and application for receiver combined in one petition, and defendant joins issue, no other notice is required. Lackey v. Yekel, 113 Neb. 382, 203 N.W. 542 (1925).Court is without power to appoint even temporary receiver for solvent corporation without notice to stockholders, where officers, who were the only parties notified, are charged with misuse of corporate powers. Furrer v. Nebraska Bldg. & Inv. Co., 108 Neb. 698, 189 N.W. 359 (1922).Where record shows judge made appointment prior to date set in notice it is void. Gibson v. Sexson, 82 Neb. 475, 118 N.W. 77 (1908).Appointment without notice is void. Smiley v. Sioux Beet Syrup Co., 71 Neb. 581, 99 N.W. 263 (1904); Johnson v. Powers, 21 Neb. 292, 32 N.W. 62 (1887).Service of notice may be made on attorney of record, who may waive time required by statute, and authorize court to proceed to immediate hearing. Murphy v. Fidelity Mutual Fire Ins. Co., 69 Neb. 489, 95 N.W. 1022 (1903).Statutory notice may be waived. Veith v. Ress, 60 Neb. 52, 82 N.W. 116 (1900).Notice is waived where appointment is opposed on other grounds. Farmers & Merchants Bank of Holstein v. German Nat. Bank of Lincoln, 59 Neb. 229, 80 N.W. 820 (1899).2. MiscellaneousThis section contains conditions precedent to valid appointment of a receiver. Gentsch, Inc. v. Burnett, 173 Neb. 820, 115 N.W.2d 446 (1962).It is error for a trial court in a foreclosure action to appoint a receiver for defendant's homestead interest in real estate. Federal Credit Co. v. Reynolds, 132 Neb. 495, 272 N.W. 397 (1937).This section applies to appointment of receivers for banks. Holcomb v. Tierney, 79 Neb. 660, 113 N.W. 204 (1907).Action must be one in which main relief sought is independent of receivership. Mann v. German-American Investment Co., 70 Neb. 454, 97 N.W. 600 (1903).Court may permit amendments of pleading upon notice. McCord, Brady & Co. v. Weil, 29 Neb. 682, 46 N.W. 152 (1890)."Parties to be affected" means those having interest in possession or immediate custody of property or immediate disposition of rents and profits therefrom. Chambers v. Barker, 2 Neb. Unof. 523, 89 N.W. 388 (1902).Petition need not propose name of person as receiver. Defects in notice are waived by appearance. Robertson v. Ostrom, 1 Neb. Unof. 200, 95 N.W. 469 (1901).

25-1083 Property; possession by sheriff; when authorized; restitution.

25-1083. Property; possession by sheriff; when authorized; restitution.Should the delay occasioned by the giving of the notice provided for in section 25-1082 be hazardous to the rights of any party, the court or judge may, by order, direct the sheriff of the county in which such action is pending to take temporary possession of the property, and shall appoint an early day for the hearing of the application, and if at such hearing the application is refused, restitution shall be made of the property to the party from whom the same was taken. SourceR.S.1867, Code § 268, p. 438; R.S.1913, § 7812; C.S.1922, § 8756; C.S.1929, § 20-1083; R.S.1943, § 25-1083.AnnotationsLevy of attachment on portion of property without leave of court is not void in absence of objection by sheriff as custodian. Ackerman v. Ackerman, 50 Neb. 54, 69 N.W. 388 (1896).

25-1084 Applicants for receiver; bonds required; contents; filing.

25-1084. Applicants for receiver; bonds required; contents; filing.Every order appointing a receiver shall require the applicant to give a good and sufficient bond, conditioned to pay all damages which the other parties to the suit or any of them may sustain by reason of the appointment of a receiver, in case it shall be finally decided that the order ought not to have been granted, and shall also require the receiver to give a bond conditioned to faithfully discharge his duties as receiver and obey all orders of the court. The bonds shall each run to the defendant and all adverse parties in interest, shall be for the use of any party to the suit, shall be in a penal sum to be fixed by the court, but not, however, to be in excess of a sum equal to double the value of the property in question, shall be executed by one surety where such surety is an incorporated surety company authorized by the laws of this state to transact such business, and by two or more sureties where such sureties are natural persons, to be approved by the court or judge making the appointment, and shall be filed in the office of the clerk of the district court; nor shall the same be considered executed until they are so filed. SourceR.S.1867, Code § 269, p. 438; Laws 1875, § 1, p. 36; Laws 1897, c. 89, § 1, p. 370; R.S.1913, § 7813; C.S.1922, § 8757; Laws 1923, c. 102, § 1, p. 257; C.S.1929, § 20-1084; R.S.1943, § 25-1084. Cross ReferencesOther bond provisions, see section 25-1018.State officers, departments, or receivers appointed on application of state, not required to give bond, see section 25-21,216.Trust companies, see section 8-211. AnnotationsDefect in or total failure to approve bond does not invalidate it. Modisett v. Campbell, 144 Neb. 222, 13 N.W.2d 126 (1944).Action will lie against receiver for deceit for making false statements in purchasing claims of creditors. State v. Merchants Bank, 81 Neb. 710, 120 N.W. 157 (1909).Measure of damages for wrongful appointment is rental value of premises and counsel fees on vacation of order. Joslin v. Williams, 76 Neb. 594, 107 N.W. 837 (1906), affirmed on rehearing, 76 Neb. 602, 112 N.W. 343 (1907).

25-1085 Application; form; content.

25-1085. Application; form; content.If a complainant desires the appointment of a receiver at the commencement of the action, the complainant shall request such appointment in the complaint. If the occasion for a receiver arises while the suit is pending, the application shall be made by a motion setting forth the facts and circumstances making such appointment necessary or proper. SourceR.S.1867, Code § 270, p. 438; R.S.1913, § 7814; C.S.1922, § 8758; C.S.1929, § 20-1085; R.S.1943, § 25-1085; Laws 2002, LB 876, § 23. AnnotationsAppointment of receiver is purely ancillary remedy and cannot be maintained in proceeding instituted solely for that purpose. Cressman v. Bonham, 129 Neb. 201, 260 N.W. 818 (1935).Verification is not jurisdictional, and may be waived. Farmers & Merchants Bank of Holstein v. German Nat. Bank of Lincoln, 59 Neb. 229, 80 N.W. 820 (1899).

25-1086 Qualifications of receiver; sureties; objections; nomination by other parties.

25-1086. Qualifications of receiver; sureties; objections; nomination by other parties.Any party to the suit may, upon the hearing of the application, show, by affidavit or otherwise, objections to the proposed sureties and to the proposed receiver, and what is the value of the property to be taken possession of, and that a receiver ought not to be appointed. He may also nominate a person to be receiver, giving at the same time the names of his proposed sureties. No person shall be appointed receiver who is party, solicitor, counsel, or in any manner interested in the suit. SourceR.S.1867, Code § 271, p. 439; R.S.1913, § 7815; C.S.1922, § 8759; C.S.1929, § 20-1086; R.S.1943, § 25-1086.AnnotationsAttorney for party is not proper counsel for receiver. Veith v. Ress, 60 Neb. 52, 82 N.W. 116 (1900).

25-1087 Order of appointment; special directions.

25-1087. Order of appointment; special directions.Every order appointing a receiver shall contain special directions in respect to his powers and duties, and upon application of any party to the suit, after due notice thereof, such further directions may be made in that behalf by the court or judge as may in the further progress of the cause become proper. SourceR.S.1867, Code § 272, p. 439; R.S.1913, § 7816; C.S.1922, § 8760; C.S.1929, § 20-1087; R.S.1943, § 25-1087.AnnotationsOrder appointing receiver should contain special directions with respect to his powers and duties. Frese v. Michalec, 151 Neb. 57, 36 N.W.2d 494 (1949).A judicial order appointing a receiver to liquidate affairs of insolvent state bank includes power of receiver to sue executive officer of bank and surety on his bond to recover losses sustained by bank for acts in violation of the bond. Luikart v. Flannigan, 130 Neb. 901, 267 N.W. 165 (1936).This section was incorporated by reference in procedure for liquidation by court of affairs of insolvent bank. State ex rel. Sorensen v. Nebraska State Bank of Bloomfield, 124 Neb. 449, 247 N.W. 31 (1933).Orders will not be modified unless abuse of discretion is shown. State v. Bank of Rushville, 57 Neb. 608, 78 N.W. 281 (1899).Receiver may sue for and collect unpaid stock subscriptions that are called for by the directors of the corporation before it is put in the hands of a receiver. Wyman v. Williams, 53 Neb. 670, 74 N.W. 48 (1898).

25-1088 Receivers; extent of representation.

25-1088. Receivers; extent of representation.Every receiver shall be considered the receiver of any party to the suit, and no others. SourceR.S.1867, Code § 273, p. 439; R.S.1913, § 7817; C.S.1922, § 8761; C.S.1929, § 20-1088; R.S.1943, § 25-1088.AnnotationsCourt has no power to appoint even temporary receiver for solvent corporation without notice to stockholders, where officers, who were the only parties notified, were charged with misuse of corporate powers. Furrer v. Nebraska Bldg. & Inv. Co., 108 Neb. 698, 189 N.W. 359 (1922).Parties are not liable for receiver's wrongful acts. City Savings Bank v. Carlon, 87 Neb. 266, 127 N.W. 161 (1910).Bond holders who are not parties to suit are not bound by acts of receiver. Smiley v. Sioux Beet Syrup Co., 71 Neb. 581, 99 N.W. 263 (1904).

25-1089 Appointment of receiver without notice; void.

25-1089. Appointment of receiver without notice; void.Every order appointing a receiver without the notice provided for herein shall be void, and every such order heretofore made, under which the appointee has not possessed himself of the property in question, shall be suspended until an order shall have been made and the bonds executed and filed in accordance with the provisions of sections 25-1081 to 25-1092. SourceR.S.1867, Code § 274, p. 439; R.S.1913, § 7818; C.S.1922, § 8762; C.S.1929, § 20-1089; R.S.1943, § 25-1089.AnnotationsRequirement of giving of notice of application for receiver is mandatory, but may be waived. Modisett v. Campbell, 144 Neb. 222, 13 N.W.2d 126 (1944).Statutory notice to interested parties is jurisdictional. Furrer v. Nebraska Bldg. & Inv. Co., 108 Neb. 698, 189 N.W. 359 (1922).Where record shows receiver was appointed before day set in notice, it is void and may be collaterally attacked. Gibson v. Sexson, 82 Neb. 475, 118 N.W. 77 (1908).Taking possession of bank by receiver is sufficient notice to protect from collateral attack. Holcomb v. Tierney, 79 Neb. 660, 113 N.W. 204 (1907).Appointment without notice is void not voidable. Smiley v. Sioux Beet Syrup Co., 71 Neb. 581, 99 N.W. 263 (1904); Johnson v. Powers, 21 Neb. 292, 32 N.W. 62 (1887).Notice may be waived by resisting appointment on other grounds; court may appoint one not named, without further notice. Farmers & Merchants Bank of Holstein v. German Nat. Bank of Lincoln, 59 Neb. 229, 80 N.W. 820 (1899).Order, regular on its face, is prima facie valid, and protects receiver. Edee v. Strunk, 35 Neb. 307, 53 N.W. 70 (1892).

25-1090 Inconclusive decree; appointment of master; disposition of property; orders; appeal.

25-1090. Inconclusive decree; appointment of master; disposition of property; orders; appeal.When a decree is rendered in a suit in which a receiver has been appointed and such decree does not finally determine the rights of the parties, any one of them may apply to the court for the possession of the property and proceeds thereof in the receiver's hands. If such application is resisted, the matter may be referred to a master to take and report to the court the testimony of the parties. Upon the filing of the report, the court shall, by its order, award the possession of the property and the proceeds thereof to the party entitled thereto, and thereupon the receiver shall surrender the property and the proceeds thereof to such party. All orders appointing receivers, giving them further directions, and disposing of the property may be appealed to the Court of Appeals in the same manner as final orders and decrees. SourceR.S.1867, Code § 275, p. 439; R.S.1913, § 7819; C.S.1922, § 8763; C.S.1929, § 20-1090; R.S.1943, § 25-1090; Laws 1991, LB 732, § 46. Cross ReferencesFor appeals to Court of Appeals, see section 25-1911 et seq. Annotations1. Appeal2. Supersedeas1. AppealThe appointment of a receiver may be treated as a final order. Robertson v. Southwood, 233 Neb. 685, 447 N.W.2d 616 (1989).An order confirming a sale by a receiver is a final order from which an appeal can be taken. Lewis v. Gallemore, 173 Neb. 441, 113 N.W.2d 595 (1962).This section was incorporated by reference in procedure for liquidation of insolvent banks. State ex rel. Sorensen v. Nebraska State Bank of Bloomfield, 124 Neb. 449, 247 N.W. 31 (1933).Order of court appointing receiver is final and appealable hereunder. State ex rel. Sorensen v. State Bank of Minatare, 123 Neb. 109, 242 N.W. 278 (1932).Statute authorizes appeal from order appointing receiver; appointment of receiver sustained. Howell v. Poff, 122 Neb. 793, 241 N.W. 548 (1932).Order to receiver to sell real estate is appealable. State ex rel. German Sav. Bank v. Fawcett, 58 Neb. 371, 78 N.W. 636 (1899).Objections are available on appeal from final decree. Seeds Dry-Plate Co. v. Heyn Photo-Supply Co., 57 Neb. 214, 77 N.W. 660 (1898).Bank may appeal from order directing suit against its stockholders. State v. German Savings Bank, 50 Neb. 734, 70 N.W. 221 (1897).Appointment is final order; appealable before final judgment. McCord, Brady & Co. v. Weil, 33 Neb. 868, 51 N.W. 300 (1892).2. SupersedeasWhether order may be superseded is discretionary with court, and court may fix terms and conditions thereof. Lowe v. Riley, 57 Neb. 252, 77 N.W. 758 (1898).Order appointing receiver cannot be superseded pending appeal, as matter of right. State ex rel. Heinzelman v. Stull, 49 Neb. 739, 69 N.W. 101 (1896).

25-1091 Receivers; disobedience of orders; punishment; sheriff may act.

25-1091. Receivers; disobedience of orders; punishment; sheriff may act.Whenever, in the exercise of their authority, the court or judge shall have ordered the deposit or delivery of money or other things, and the order is disobeyed, the court or judge, in addition to punishing such disobedience as for contempt, may make an order requiring the sheriff to take the money or thing, and deposit or deliver it, in conformity with the direction of the court or judge. SourceR.S.1867, Code § 276, p. 439; Laws 1899, c. 82, § 1, p. 337; R.S.1913, § 7820; C.S.1922, § 8764; C.S.1929, § 20-1091; R.S.1943, § 25-1091.

25-1092 Receivers; compensation.

25-1092. Receivers; compensation.Receivers shall receive for their services such compensation as the court may award, subject to the following restrictions:(1) Receivers appointed for the purpose of preserving and protecting property pending litigation, or for the purpose of continuing the business of the debtor or corporation pending litigation, or when financially embarrassed, may be awarded a salary or lump sum;(2) Receivers appointed for the purpose of winding up the affairs of a debtor or corporation, reducing the assets to cash and distributing them, shall be awarded as compensation for such services a percentage upon the cash received and properly accounted for by them, which percentage may be increased where extraordinary services have been performed, and correspondingly reduced where the services have not been meritoriously performed. SourceLaws 1899, c. 33, § 1, p. 169; R.S.1913, § 7821; C.S.1922, § 8765; C.S.1929, § 20-1092; R.S.1943, § 25-1092.AnnotationsAllowance to receiver of lump sum rather than percentage of cash received was proper where receiver was primarily appointed to conserve assets. State ex rel. Beck v. Associates Discount Corp., 168 Neb. 298, 96 N.W.2d 55 (1959).Exercise of power to appoint receiver for winding up affairs of corporation was contemplated by this section. State ex rel. Sorensen v. Nebraska State Bank, 124 Neb. 449, 247 N.W. 31 (1933).Compensation is in discretion of court; and order will not be modified unless discretion was abused. State v. Nebraska Savings & Exchange Bank, 61 Neb. 496, 85 N.W. 391 (1901).

25-1093 Replevin; delivery of property; notice, when required.

25-1093. Replevin; delivery of property; notice, when required.The plaintiff in an action to recover the possession of specific personal property may, at the commencement of the suit, or any time before answer, request the delivery of such property as provided by sections 25-1093 to 25-1098, 25-10,109, and 25-10,110. In a replevin action under the Grain Warehouse Act, notice shall be given as provided in section 88-547.02. SourceR.S.1867, Code § 181, p. 421; R.S.1913, § 7822; C.S.1922, § 8766; C.S.1929, § 20-1093; R.S.1943, § 25-1093; Laws 1973, LB 474, § 1; Laws 2005, LB 492, § 1. Cross ReferencesGrain Warehouse Act, see section 88-525. AnnotationsWhere both parties contemplated that payment for cattle would be made by draft drawn on the buyer by the seller, the transaction was a cash sale and seller could properly reclaim the cattle from the buyer following buyer's dishonor of the draft drawn on buyer by seller pursuant to the parties' agreement. Peck v. Augustine Bros. Co., 203 Neb. 574, 279 N.W.2d 397 (1979).Action of replevin is in part a proceeding in rem, and trial de novo is authorized in district court on appeal. Lemer v. Hunyak, 104 Neb. 2, 175 N.W. 605 (1919).Replevin action may proceed to trial and judgment without the property being delivered to the plaintiff. Hudelson v. First Nat. Bank of Tobias, 56 Neb. 247, 76 N.W. 570 (1898).Replevin cannot be had for exempt property until inventory and selection by debtor. Mann v. Welton, 21 Neb. 541, 32 N.W. 599 (1887).

25-1093.01 Request delivery of property; affidavit; contents.

25-1093.01. Request delivery of property; affidavit; contents.The plaintiff may request the delivery of property as specified in section 25-1093 by filing in the office of the clerk of the court in which the action is filed an affidavit of the plaintiff or his or her agent or attorney showing (1) a description of the property claimed, (2) that the plaintiff is the owner of the property or has a special ownership or interest therein, stating the facts in relation thereto, and that he or she is entitled to the possession of the same, (3) that the property is wrongfully detained by the defendant, and (4) that it was not taken in execution on any order or judgment against such plaintiff, or for the payment of any fine, tax, or amercement assessed against him or her or by virtue of an order of delivery issued under Chapter 25, or any other mesne or final process issued against him or her, except that such affidavit may omit the first and last clause of this subdivision and, in lieu thereof, show that the property was taken on execution on a judgment or order other than an order of delivery in replevin, and that the same is exempt from such execution or attachment under the laws of this state. The provisions of Chapter 25, article 10, shall extend to and apply as well to proceedings in replevin had before county courts. Attached to such affidavit shall be a specific request for the delivery of the property and the issuance of an order by the court to that effect. SourceLaws 1973, LB 474, § 2; Laws 1984, LB 13, § 38. AnnotationsReplevin properly lies to recover chattels unlawfully detained, regardless of whether the original taking was wrongful. White Motor Credit Corp. v. Sapp Bros. Truck Plaza, Inc., 197 Neb. 421, 249 N.W.2d 489 (1977).

25-1093.02 Affidavit; filing; service; temporary order; effect; hearing; when.

25-1093.02. Affidavit; filing; service; temporary order; effect; hearing; when.Upon the filing of such affidavit and request for delivery, if the defendant with full knowledge of the allegations and effect of the plaintiff's request agrees that such delivery in replevin be had, he may execute a voluntary, intelligent, and knowing waiver under oath of his rights to notice and hearing, in which event the court shall order that all further proceedings shall be suspended and the property being replevied delivered to the plaintiff forthwith, otherwise upon the filing of such affidavit and request for delivery required by section 25-1093.01, the court shall issue a temporary order addressed to the defendant that he shall hold the property described in the affidavit in his possession, unimpaired and unencumbered, and in all respects in the same state and condition as at the time of receipt of the order, until further order of the court. The temporary order shall also notify such defendant that if he fails to comply with the temporary order he shall be subject to the full contempt powers of the court. Attached to such temporary order shall be a notice that a hearing will be had and specifying the date, time, and place of such hearing, at which hearing will be determined plaintiff's right to possession of the goods described in plaintiff's affidavit and request for delivery, pending final determination of the merits. At such hearing the defendant shall be required to show cause why the possession of the goods should not be delivered to the plaintiff. Unless otherwise determined and ordered by the court, the date of such hearing shall be seven days after service of the order upon the defendant, but in no event later than fourteen days after service. SourceLaws 1973, LB 474, § 3; Laws 1976, LB 859, § 1. AnnotationsA temporary order entered pursuant to this provision, which requires the defendant in replevin action to hold the property unimpaired and unencumbered until hearing which must take place within fourteen days after service and at which court determines plaintiff's right to possession pending final resolution on the merits, results in a deprivation of property rights sufficient to trigger due process protection. Lewis Service Center, Inc. v. Mack Financial Corp., 696 F.2d 66 (8th Cir. 1982).

25-1093.03 Affidavit; temporary order; notice; hearing.

25-1093.03. Affidavit; temporary order; notice; hearing.If filed at the commencement of suit, such affidavit and request for delivery and such temporary order containing the notice of hearing shall be served by the sheriff or other officer with the summons. If filed after the commencement of suit but before answer, they shall be served separately from the summons, but as soon after their filing and issuance as practicable. SourceLaws 1973, LB 474, § 4.

25-1093.04 Order for delivery of property.

25-1093.04. Order for delivery of property.If the court finds at such hearing that the plaintiff is entitled to possession of the property, it shall order the clerk to issue an order for delivery of the property to the plaintiff, and deliver such order for delivery to the sheriff or other officer to be served and returned according to sections 25-1096 and 25-1097. The order of the court required by this section shall conform to the content requirements of section 25-1094. SourceLaws 1973, LB 474, § 5.

25-1094 Order for delivery; contents.

25-1094. Order for delivery; contents.An order for the delivery of personal property to the plaintiff shall be made by the clerk of the court in which the action is brought only upon the filing in his office of an order of the court showing (1) a description of the property claimed; (2) that the plaintiff has raised a bona fide issue as to whether he is the owner of the property, or whether he has a special ownership or interest therein, but that it appears sufficiently probable to the court that the plaintiff will prevail on the merits; and (3) that there is a bona fide issue as to whether the property is wrongfully detained by the defendant and that the plaintiff is entitled to the immediate delivery of the property. SourceR.S.1867, Code § 182, p. 421; Laws 1877, § 1, p. 9; R.S.1913, § 7823; C.S.1922, § 8767; C.S.1929, § 20-1094; R.S.1943, § 25-1094; Laws 1972, LB 1032, § 128; Laws 1973, LB 474, § 6. Annotations1. Affidavit2. Ownership3. Detention4. Miscellaneous1. AffidavitAffidavit used as evidence in district court cannot be considered on appeal unless preserved in and made a part of the bill of exceptions. Spidel Farm Supply, Inc. v. Line, 165 Neb. 664, 86 N.W.2d 789 (1957).Affidavit in replevin must show that plaintiff is the owner of the property or has a special interest therein, that he is entitled to the immediate possession thereof, and that the property is wrongfully detained by the defendant. Hickman-Williams Agency v. Haney, 152 Neb. 219, 40 N.W.2d 813 (1950).Action, without delivery of property, may proceed without affidavit. Racine-Sattley Co. v. Meinen, 79 Neb. 33, 114 N.W. 602 (1908).Affidavit is prerequisite to order of delivery; order nullity otherwise, and set aside on motion. Case Threshing Machine Co. v. Rosso, 78 Neb. 184, 110 N.W. 686 (1907).May permit amendment of affidavit to allegation of ownership in amended petition. Tackaberry v. Gilmore, 57 Neb. 450, 78 N.W. 32 (1899).Writ issued on petition containing necessary allegations of affidavit, sworn to upon belief, is voidable, not void. Lewis v. Connolly, 29 Neb. 222, 45 N.W. 622 (1890).Affidavit does not take place of petition or bill of particulars. School Dist. No. 36 in York Co. v. McIntie, 14 Neb. 46, 14 N.W. 656 (1883).Filing affidavit is a proceeding, not a pleading; amendable even after motion to dismiss. Wilson v. Macklin, 7 Neb. 50 (1878).2. OwnershipTo maintain an action for conversion of personal property, a party must have had actual possession of the property or the right of possession. Coulter v. Cummings, 93 Neb. 646, 142 N.W. 109 (1913).Mortgagee must allege facts showing special ownership and right to possession. Pennington County Bank v. Bauman, 81 Neb. 782, 116 N.W. 669 (1908); Paxton v. Learn, 55 Neb. 459, 75 N.W. 1096 (1898).Averment of agency is not one of the conditions upon which clerk is authorized to issue order of delivery. Hudelson v. First Nat. Bank of Tobias, 56 Neb. 247, 76 N.W. 570 (1898).Allegation of special ownership is not sustained by proof of general ownership. Suckstorf v. Butterfield, 54 Neb. 757, 74 N.W. 1076 (1898).Allegation of general ownership is not sustained by proof of special ownership. Wilson v. City Nat. Bank of Kearney, 51 Neb. 87, 70 N.W. 501 (1897).Petition must show facts creating special ownership. Griffing v. Curtis, 50 Neb. 334, 69 N.W. 968 (1897).3. DetentionWhere plaintiff did not file a security agreement or lien and did not simultaneously have legal title and physical possession as required by section 60-105, R.R.S.1943, it did not meet its burden of proof for a replevin action. The Cornhusker Bank of Omaha v. McNamara, 205 Neb. 504, 288 N.W.2d 287 (1980).One having custody of property in dispute is proper defendant. Engel v. Dado, 66 Neb. 400, 92 N.W. 629 (1902).Wrongful detention is essential. Affidavit may be aided by petition, and is amendable. Hudelson v. First Nat. Bank of Tobias, 51 Neb. 557, 71 N.W. 304 (1897).Replevin will not lie against one not in possession. Depriest v. McKinstry, 38 Neb. 194, 56 N.W. 806 (1893).4. MiscellaneousThe United States Supreme Court Fuentes v. Shevin, 407 U.S. 67, decision concerning the validity of prejudgment replevin statutes will not be applied retroactively to a replevin action commenced in 1967. Peck v. Augustine Bros. Co., 203 Neb. 574, 279 N.W.2d 397 (1979).Property held under void judgment may be replevined. Muller v. Plue, 45 Neb. 701, 64 N.W. 232 (1895).Allegation that property was not taken on execution, etc., is not sustained by proof that property was exempt. Eikenbary v. Clifford, 34 Neb. 607, 52 N.W. 377 (1892).Replevin cannot be maintained for property levied upon and claimed to be exempt until after inventory is filed and appraisement and selection made. Mann v. Welton, 21 Neb. 541, 32 N.W. 599 (1887).

25-1095 Order for delivery; contents.

25-1095. Order for delivery; contents.The order for the delivery of the property to the plaintiff shall be addressed and delivered to the sheriff. It shall state the names of the parties, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order on a day to be named therein. SourceR.S.1867, Code § 183, p. 422; R.S.1913, § 7824; C.S.1922, § 8768; C.S.1929, § 20-1095; R.S.1943, § 25-1095.AnnotationsWhere writ is made returnable on holiday or Sunday, succeeding day is return day. Ostertag v. Galbraith, 23 Neb. 730, 37 N.W. 637 (1888).

25-1096 Order for delivery; when returnable.

25-1096. Order for delivery; when returnable.The return day for the order of delivery shall be twenty days after its issuance. SourceR.S.1867, Code § 184, p. 422; R.S.1913, § 7825; C.S.1922, § 8769; C.S.1929, § 20-1096; R.S.1943, § 25-1096; Laws 1973, LB 474, § 7.

25-1097 Order for delivery; how executed.

25-1097. Order for delivery; how executed.The sheriff shall execute the order of delivery by taking the property therein mentioned. He shall also deliver a copy of the order of delivery to the person charged with the unlawful detention of the property or leave such copy at his usual place of residence. SourceR.S.1867, Code § 185, p. 422; R.S.1913, § 7826; C.S.1922, § 8770; C.S.1929, § 20-1097; R.S.1943, § 25-1097; Laws 1973, LB 474, § 8. AnnotationsCannot seize property in possession of third party claiming ownership in good faith. Singer Sewing Machine Co. v. Robertson, 87 Neb. 542, 127 N.W. 866 (1910).Seizure on Sunday is void. Bryant v. State, 16 Neb. 651, 21 N.W. 406 (1884).Leaving copy at usual place of business is insufficient. Aultman & Taylor Co. v. Steinan, 8 Neb. 109 (1879).Failure to serve copy is mere irregularity. Baker v. Daily, 6 Neb. 464 (1877).

25-1098 Delivery of property to plaintiff; bond; contents; return; redelivery bond.

25-1098. Delivery of property to plaintiff; bond; contents; return; redelivery bond.The sheriff, or other officer, shall not deliver to the plaintiff, his agent or attorney, the property so taken, until there has been executed by one or more sufficient sureties of the plaintiff a written undertaking to the defendant, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him, and return the property to the defendant, in case judgment for a return of such property is rendered against him. The undertaking shall be returned with the order.If, before the actual delivery to the plaintiff, the defendant executes within twenty-four hours from the time of the levy, by one or more sufficient sureties a written undertaking to the plaintiff, in at least double the value of the property, to the effect that the defendant shall duly defend the action and pay all costs and damages which may be awarded against him, and deliver the property to the plaintiff, in case judgment for delivery of such property is rendered against him, the undertaking shall be returned with the order by the officer, who shall return the property to the defendant. SourceR.S.1867, Code § 186, p. 422; G.S.1873, c. 57, § 186, p. 553; R.S.1913, § 7827; C.S.1922, § 8771; C.S.1929, § 20-1098; R.S.1943, § 25-1098; Laws 1965, c. 119, § 1, p. 452.AnnotationsIn forma pauperis status does not excuse the litigant from paying the cost of a premium for a replevin bond pursuant to this section. Jacob v. Schlichtman, 261 Neb. 169, 622 N.W.2d 852 (2001).A successful plaintiff in replevin is entitled to recover the reasonable cost of the bond required of it by this section. Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992).Bond runs to defendant alone. Singer Sewing Machine Co. v. Robertson, 87 Neb. 542, 127 N.W. 866 (1910).Bond entitles plaintiff to property pending action. Jenkins v. State, 60 Neb. 205, 82 N.W. 622 (1900).Sureties liable to defendant for whom judgment is rendered. Pilger v. Marder, 55 Neb. 113, 75 N.W. 559 (1898).After obtaining property plaintiff cannot refuse to prosecute and enjoin defendant from prosecuting. Kinkaid v. Hiatt, 24 Neb. 562, 39 N.W. 600 (1888).Bond omitting requirement to "return the property," is binding as to other provisions. Hicklin v. Nebr. City National Bank, 8 Neb. 463, 1 N.W. 135 (1879).

25-1099 Bond; amount; determination; appraisal.

25-1099. Bond; amount; determination; appraisal.For the purpose of fixing the amount of the undertaking, the value of the property taken shall be ascertained by the oath of two or more responsible persons, whom the sheriff or other officer shall swear truly to assess the value thereof. SourceR.S.1867, Code § 187, p. 422; R.S.1913, § 7828; C.S.1922, § 8772; C.S.1929, § 20-1099; R.S.1943, § 25-1099.AnnotationsTestimony as to valuation placed on property in appraisement was incompetent. Dempster Mill Mfg. Co. v. First Nat. Bank of Holdrege, 49 Neb. 321, 68 N.W. 477 (1896).Appraisement is not admissible as evidence generally. Barlass v. Braash, 27 Neb. 212, 42 N.W. 1028 (1889).

25-10,100 Failure to furnish bond; duty and liability of officer; return of property to defendant.

25-10,100. Failure to furnish bond; duty and liability of officer; return of property to defendant.If the undertaking required by section 25-1098 is not given within twenty-four hours from the taking of the property under said order, the sheriff or other officer shall return the property to the defendant. If the sheriff or other officer delivers any property so taken to the plaintiff, his agent or attorney, or keeps the same from the defendant, without taking such security within the time aforesaid, or if he takes insufficient security, he shall be liable to the defendant in damages. SourceR.S.1867, Code § 188, p. 422; R.S.1913, § 7829; C.S.1922, § 8773; C.S.1929, § 20-10,100; R.S.1943, § 25-10,100.AnnotationsWhere bond is not given in twenty-four hours, it is duty of officer to return property to defendant. Barlass v. Braash, 27 Neb. 212, 42 N.W. 1028 (1889).Officer need not accept nonresidents of county as sureties. State ex rel. Sornborger v. Wait, 23 Neb. 166, 36 N.W. 380 (1888).

25-10,101 Bond; objections to sureties; waiver; liability of officer.

25-10,101. Bond; objections to sureties; waiver; liability of officer.The defendant may, within twenty-four hours from the time the undertaking referred to in section 25-10,100 is given by the plaintiff, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he must be deemed to have waived all objections to them. When the defendant excepts, the sureties must justify upon notice as in the case of bail on arrest. The sheriff or other officer shall be responsible for the sufficiency of the sureties, until the objection to them is waived as above provided or until they justify. The property shall be delivered to the plaintiff when the undertaking required by section 25-1098 has been given. SourceR.S.1867, Code § 189, p. 423; R.S.1913, § 7830; C.S.1922, § 8774; C.S.1929, § 20-10,101; R.S.1943, § 25-10,101.AnnotationsObjection must be made within forty-eight hours from time property was seized. Where objections are waived, officer's good faith in accepting sureties is immaterial. Barton v. Shull, 70 Neb. 324, 97 N.W. 292 (1903).Subsequent seizure by plaintiff on execution is defense pro tanto. Shull v. Barton, 67 Neb. 311, 93 N.W. 132 (1903).Where objection is made, officer, failing to have sureties justify, is liable for insufficiency. Barton v. Shull, 62 Neb. 570, 87 N.W. 322 (1901).Surety, whose want of power to sign is palpable, is not estopped because property was delivered to plaintiff. Sturdevant v. Farmers & Merchants Bank of Rushville, 62 Neb. 472, 87 N.W. 156 (1901).This section was not rendered inoperative by repeal of legislation providing for release of debtor from arrest. Shull v. Barton, 58 Neb. 741, 79 N.W. 732 (1899).Constable is liable for taking insufficient bond though objections were not made thereto. Busch v. Moline, Milburn & Stoddard Co., 52 Neb. 83, 71 N.W. 947 (1897).Provision requiring notice of insufficiency of sureties is inapplicable to action before justice of the peace. Thomas v. Edgerton, 40 Neb. 25, 58 N.W. 551 (1894).Defendant must except to sufficiency of sureties on replevin bond within time specified. Haynes v. Aultman, Miller & Co., 36 Neb. 257, 54 N.W. 511 (1893).

25-10,102 Judgment against plaintiff upon dismissal; failure of plaintiff to prosecute; procedure.

25-10,102. Judgment against plaintiff upon dismissal; failure of plaintiff to prosecute; procedure.If the property has been delivered to the plaintiff, and he suffers a voluntary or involuntary dismissal, or if he otherwise fails to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then, and in either case, they shall assess such damages for the defendant as are right and proper; for which, with costs of suit, the court shall render judgment for the defendant. SourceR.S.1867, Code § 190, p. 423; R.S.1913, § 7831; C.S.1922, § 8775; C.S.1929, § 20-10,102; R.S.1943, § 25-10,102; Laws 1959, c. 103, § 1, p. 427. Annotations1. Failure to prosecute2. Burden of proof3. Miscellaneous1. Failure to prosecuteUpon failure of plaintiff to prosecute appeal, defendant has right to have title to and right of possession of property adjudicated. Rice v. McGrath, 162 Neb. 511, 76 N.W.2d 428 (1956).Failing to prosecute by refusing to amend, defendant is entitled to judgment and trial to assess damages. Pennington County Bank v. Bauman, 87 Neb. 25, 126 N.W. 654 (1910).2. Burden of proofBurden rests on plaintiff in replevin to establish facts necessary to recover. Alliance Loan & Inv. Co. v. Morgan, 154 Neb. 745, 49 N.W.2d 593 (1951).Party cannot be substituted for plaintiff. Meyer v. Omaha Furniture & Carpet Co., 76 Neb. 405, 107 N.W. 767 (1906).3. MiscellaneousAn action in replevin is properly triable to a jury. First State Bank of Scottsbluff v. Bear, 172 Neb. 504, 110 N.W.2d 83 (1961).Where action is dismissed for want of jurisdiction, judgment for return of property or value cannot be given. Reid, Murdoch & Co. v. Panska, 56 Neb. 195, 78 N.W. 534 (1898).Plaintiff cannot dismiss and defeat defendant's right to possession, without trial. Vose v. Muller, 48 Neb. 602, 67 N.W. 598 (1896).Defendant is entitled to judgment, unless plaintiff proves title. Garber v. Palmer, Blanchard & Co., 47 Neb. 699, 66 N.W. 656 (1896).Requirement that judgment be in the alternative is mandatory. Singer Mfg. Co. v. Dunham, 33 Neb. 686, 50 N.W. 1122 (1892).Plaintiff may not dismiss without prejudice. Aultman & Co. v. Reams, 9 Neb. 487, 4 N.W. 81 (1880).Plaintiff cannot dismiss to escape liability to defendant. Cook v. Vaughn, 1 Neb. Unof. 244, 95 N.W. 333 (1901).

25-10,103 Verdict for defendant; further findings required; damages.

25-10,103. Verdict for defendant; further findings required; damages.In all cases, when the property has been delivered to the plaintiff, where the jury shall find upon issue joined for the defendant, they shall also find whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant; for which with costs of suit, the court shall render judgment for the defendant. SourceR.S.1867, Code § 191, p. 423;R.S.1913, § 7832; C.S.1922, § 8776; C.S.1929, § 20-10,103; R.S.1943, § 25-10,103.Annotations1. Right of property2. Right of possession3. Damages4. Miscellaneous1. Right of propertyFacts necessary to entitle plaintiff to recover in replevin action must exist at time action is commenced. Alliance Loan & Inv. Co. v. Morgan, 154 Neb. 745, 49 N.W.2d 593 (1951).Section is mandatory; court must determine rights as they existed at time action was commenced. Brown v. Hogan, 49 Neb. 746, 69 N.W. 100 (1896).Where verdict and judgment are silent as to ownership of property, question remains unadjudicated. Fuller v. Brownell, 48 Neb. 145, 67 N.W. 6 (1896).Finding of general value is unnecessary where defendant claimed special interest only. Earle v. Burch, 21 Neb. 702, 33 N.W. 254 (1887).2. Right of possessionFailure of plaintiff to prosecute action cannot deprive defendant of right to have the right to possession of the property determined. Rice v. McGrath, 162 Neb. 511, 76 N.W.2d 428 (1956).Where defendant's right of possession arose by virtue of a lien for truck repairs, judgment should provide for return of property or value of possession. Jackson v. Arndt-Snyder Motor Co., 122 Neb. 276, 240 N.W. 279 (1932).Where defendant is entitled to possession only, value of same and not of property should be assessed. Tyson v. Bryan, 84 Neb. 202, 120 N.W. 940 (1909).Failure to find right to possession does not render judgment void. Ayres v. Duggan, 57 Neb. 750, 78 N.W. 296 (1899).Failure to find value of defendant's right of possession is not an error of which plaintiff can complain. Jameson v. Kent, 42 Neb. 412, 60 N.W. 879 (1894).Under chattel mortgage, value of possession is amount of lien not exceeding value of property. Cruts v. Wray, 19 Neb. 581, 27 N.W. 634 (1886).Under execution, value of right of possession is amount of execution and costs. Welton v. Beltezore, 17 Neb. 399, 23 N.W. 1 (1885).Right to possession entitles defendant to nominal damages at least. Frey v. Drahos, 7 Neb. 194 (1878).3. DamagesWhere there is a wrongful taking in replevin of property held by sheriff under attachment, measure of damages is sale value at time, considering manner in which officer could have sold same. Merchants' Nat. Bank of Omaha v. McDonald, 63 Neb. 363, 88 N.W. 492 (1901), rehearing denied, 63 Neb. 377, 89 N.W. 770 (1902).Measure of damages for detention of property is the value of the use, where in excess of interest. Schrandt v. Young, 62 Neb. 254, 86 N.W. 1085 (1901).Party must recover all damages for unlawful detention in replevin actions. Teel v. Miles, 51 Neb. 542, 71 N.W. 296 (1897).In estimating damages to defendant, jury should be permitted to take into consideration length of time intervening between levy and restoration to possession. Schars v. Barnd, 27 Neb. 94, 42 N.W. 906 (1889).Where property is ordered returned to defendant, and plaintiff, pending appeal, again converts property by lien and sale, the conversion may be shown as a means of estimating damages. Deck v. Smith, 12 Neb. 389, 11 N.W. 852 (1882).Measure of damages is amount of writ where value of goods exceeds that sum. Kersenbrock v. Martin, 12 Neb. 374, 11 N.W. 462 (1882).4. MiscellaneousAn action in replevin is properly triable to a jury. First State Bank of Scottsbluff v. Bear, 172 Neb. 504, 110 N.W.2d 83 (1961).Verdict for defendant in replevin case is basis for entry of judgment in alternative. Clark v. Oldham, 166 Neb. 672, 90 N.W.2d 329 (1958).When property is not returned in reasonable time, and depreciates, defendant may refuse same and sue for value, costs and interest. Wallace v. Cox, 92 Neb. 354, 138 N.W. 578 (1912).General finding for defendant, without finding as to value, is error. Foss v. Marr, 40 Neb. 559, 59 N.W. 122 (1894).Section is mandatory, whether defendant pleads general denial, new matter, or prays for damages. School Dist. No. 2 of Merrick County v. Shoemaker, 5 Neb. 36 (1876).Defendant may recover judgment for return, under general denial without prayer for return. Voorheis, Miller & Co. v. Leisure, 1 Neb. Unof. 601, 95 N.W. 676 (1901).

25-10,104 Judgment for defendant; irregularity in process or jurisdictional defect; restoration of status quo.

25-10,104. Judgment for defendant; irregularity in process or jurisdictional defect; restoration of status