5351 (884). It is the duty of the clerk of each of the courts to file together and carefully preserve in his office all papers delivered to him for that purpose, in every action or special proceeding.

5352 (885). He shall endorse upon every paper filed with him, the day of filing it; and upon every order for a provisional remedy, and upon every undertaking given under the same, the day of its return to his office.

5353 (886). He shall, upon the return of every summons served, enter upon the docket the name of the defendant or defendants summoned, and the day of the service upon each one. The entry shall be evidence of the service of the summons, in case of the loss thereof.

5354 (887). He shall keep the records and books and papers appertaining to the court, and record its proceedings.

5355 (888). The provisions of article eight, title nine, of this code, prescribing the duties of clerks of the district court, shall, as far as they are applicable, apply to the clerks of other courts of record.

5356 (889). The clerk of each of the courts shall exercise the powers and perform the duties conferred and imposed upon him by other provisions of this code, by other statutes, and by the common law. In the performance of his duty he shall be under the direction of his court.

Supreme court will not mandamus clerk to issue order of sale where there has been no application therefor to his own court. 29, 122 (45 N. W., 278).

CHAPTER III.-DUTIES OF SHERIFFS.

5357 (890). The sheriff shall endorse upon every summons, order of arrest, or for the delivery of property, or of attachment or injunction, the day and the hour it was received by him.

5358 (891). He shall execute every summons, order or other process, and return the same as required by law; and if he fail to do so, unless he make it appear to the satisfaction of the court that he was prevented by inevitable accident from so doing, he shall be amerced by the court in a sum not exceeding one thousand dollars, and shall be liable to the action of any person aggrieved by such failure.

5359 (892). The sheriff shall exercise the powers and perform the duties conferred and imposed upon him by other provisions of this code, by other statutes, and by the common law.

CHAPTER IV.-MISCELLANEOUS PROVISIONS.

5360 (893). Any duty enjoined by this code upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy. 5361 (894). Whenever an oath is required by this code, the affirmation of a person conscientiously scrupulous of taking an oath, shall have the same effect.

5362 (895). The time within which an act is to be done as herein provided, shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.

Construed with reference to tax sale and deed. 13, 536 (14 N. W., 659). Applicable to proceedings before justices of the peace. 8, 362. See 15, 661 (20 N. W., 30).

5363 (896). Section four hundred and thirty-two shall not be construed to impair the right of a party to a jury, if he appear at the trial by himself or attorney, and demand the same.

5364 (897). The ministerial officer, whose duty it is to take security in an undertaking provided for by this code, shall have the right to require the person offered as surety to make an affidavit of his qualifications, which affidavit may be made before such officer. The taking of such an affidavit shall not exempt the

officer from any liability to which he might otherwise be subject for taking insuffi- . cient security.

Clerk district court ministerial officer and liable for negligently taking insufficient security. 5, 236. Has no reference to the duties of a sheriff. 22, 691 (36 N. W., 118).

5365 (898). The surety in every undertaking provided for by this code, must be a resident of this state, and worth double the sum to be secured, beyond the amount of his debts, and have property liable to execution in this state, equal to the sum to be secured. Where there are two or more sureties in the same undertaking, they must in the aggregate have the qualifications prescribed in this section.

5366 (899). The judges of the supreme court shall, during the month of the first January after this code shall take effect, and every two years thereafter, meet at the capital of the state, and revise their general rnles, and make such amendments thereto as may be necessary to carry into effect the provisions of this code; and they shall make such further rules consistent therewith as they may deem proper. The rules so made shall apply to the supreme court and the district courts.

CHAPTER V.-PROVISIONS RESPECTING EXISTING ACTIONS.

5367 (900). The provisions of this code do not apply to proceedings in actions or suits pending when it takes effect. They shall be conducted to final judgment or decree, in all respects as if it had not been adopted; but the provisions of this code shall apply after a judgment, order, or decree heretofore or hereafter rendered, to the proceedings to enforce, vacate, modify, or reverse it.

CHAPTER VI.-PROVISIONS AS TO THE OPERATIONS OF THE CODE.

5368 (901). Rights of civil action given or secured by existing laws shall be prosecuted in the manner provided by this code, except as provided in the following section. If a case ever arise in which an action. for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this code, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice.

5369 (902). Until the legislature shall otherwise provide, this code shall not affect proceedings on habeas corpus, quo warranto, or to assess damages for private property taken for public uses; nor proceedings under the statutes for the settlement of estates of deceased persons; nor proceedings under statutes relating to dower, divorce, or alimony, or to establish or set aside a will; nor proceedings under statutes relating to apprentices, arbitration, bastardy, or insolvent debtors; nor any special statutory remedy not heretofore obtained by action; but such proceedings may be prosecuted under the code whenever it is applicable.

5370 (903). Where, by general or special statute, a civil action, legal or equitable, is given and the mode of proceeding therein is described, this code shall not affect the proceedings under such statute, until the legislature shall otherwise provide; but in all such cases, as far as it may be consistent with the statute giving such action, and practicable under this code, the proceedings shall be conducted in conformity thereto. Where the statute designates by name or otherwise the kind of action, but does not prescribe the mode of proceeding therein, such action shall be commenced and prosecuted in conformity to this code; where the statute gives an action, but does not designate the kind of action, or prescribe the mode of proceeding therein, such action shall be held to be the civil action of this code, and proceeded in accordingly.

Secs. 5371 and 5372 formed secs. 4 and 5 of "An act to amend the code of civil procedure by abolishing the distinction between actions at law and suits in equity." 1867, p. 71. In force June 19. (Sec. 1 amended sec. 2 of this code, sec. 2 repealed secs. 2 and 87 of the same, and sec. 3 amended sec. 87; sec. 6 was repealed. 1871, p. 113.)

5371. The final orders or decree of chancery heretofore rendered, or which

may hereafter be rendered, in any chancery proceedings pending at the time this act shall take effect, may be enforced or reviewed in the same manner, and within the same time, as if this act had not taken effect; and all suits in chancery pending at the time of the taking effect of this act may be prosecuted to final decree in like

manner.

5372. The words hereinafter found in the code of civil procedure shall be construed and held to mean as follows, to-wit: "complainant" shall mean plaintiff; "bill" or "complaint" shall mean petition; "suit" shall mean action or civil action; and "decree" shall mean judgment; and all other words and terms found in said code of civil procedure, heretofore applicable to the chancery practice hereby repealed, shall be so construed and held as to carry out the intention of this act, prevent a failure of justice, and give adequate relief in all cases.

5373 (904). The jurisdiction of justices of the peace in civil cases shall, unless otherwise directed by law, be limited to the county wherein they may have been elected, and where they shall reside.

5374 (905). [Matters.]-Justices of the peace, within and co-extensive with their respective counties, shall have jurisdiction and authority: First-To administer an oath or affirmation authorized or required by law to be administered. Second— To take acknowledgment of deeds, mortgages, and other instruments of writing. Third-To solemnize marriages. Fourth-To issue subpoena for witnesses and coerce their attendance in causes or matters pending before them, or other cause or matter wherein they may be required to take depositions. Fifth-To try the action for forcible entry and detention, or the detention only, of real property. Sixth-To proceed against security for costs and bail for the stay of execution on their dockets. · Seventh-To issue attachments, and proceed against the goods and effects of debtors in certain cases. Eighth-To issue executions on judgments rendered by them. Ninth-To proceed against constables failing to make return, making false return, or failing to pay over money collected on execution, issued by such justice. TenthTo try the right of the claimant to property taken in execution, or on attachment. Justice can make no order in a case after it has been taken to district court. 27, 56 (42 N. W.

762).

5375 (906). Justices of the peace shall have jurisdiction in actions for trespass on real estate, where the damages demanded for such trespass shall not exceed two hundred dollars, and no claim of title to such real estate set up by the defendant shall take away or affect the jurisdiction hereby given.

Amount raised from one hundred dollars. 1881, p. 208. But where both parties claim title to the land justice would not have jurisdiction. 28, 397 (44 N. W., 434).

5376 (907). Justices shall not have cognizance of any action: First-To recover damages for an assault, or assault and battery. Second-In any action for malicious prosecution. Third-In actions against justices of the peace, or other officers, for misconduct in office, except in the cases provided for in this title. Fourth-In actions for slander, verbal or written. Fifth-In actions on contracts for real estate. Sixth-In actions in which the title to real estate is sought to be recovered, or may be drawn in question, except actions for trespass on real estate, which are provided for in this title.

Justice would not have jurisdiction of an action against an officer and his bondsmen for misconduct in office. But this would not prevent sheriff being sued in justice court in trespass or trover, for wrongfully taking property on execution. 12, 37 (10 N. W., 531).

CHAPTER II.—COMMENCEMENT OF SUITS, SERVICE AND RETURN OF PROCESS, AND PROCEEDINGS IN ARREST AND ATTACHMENT.

5377 (908). Actions before justices of the peace are commenced by summons or by the appearance and agreement of the parties without summons. In the former the action is deemed commenced, upon the delivery of the writ to the constable to be served; and he shall note thereon the time of receiving the same. In the latter case the action is deemed commenced at the time of docketing the case. 6, 411.

5378 (909). When a guardian to the suit is necessary, he must be appointed by the justice as follows: First-If the infant be plaintiff, the appointment must be made before the summons is issued upon the application of the infant, if he be of the age of fourteen years or upwards; if under that age, upon the application of some friend. The consent in writing of the guardian to be appointed, and to be responsible for costs if he fail in the action, must be filed with the justice. Second -If the infant be defendant, the guardian must be appointed before trial. It is the right of the infant to nominate his own guardian, if the infant be over fourteen years of age, and the proposed guardian be present and consent in writing to be appointed. Otherwise the justice may appoint any suitable person who gives such

consent.

5379 (910). The style of the summons shall be: "The state of Nebraska, county;" it shall be dated the day it is issued, and signed by the justice issuing the same; be directed to the constable or sheriff of the proper county (except in case a person be deputed to serve it, in which case it shall be directed to such person); must contain the names of defendant or defendants, if known, and if unknown, give a description of him or them, and command the officer, or person serving the same, to summon the defendant or defendants to appear before such justice, at his office, in county, at a time specified therein; and must describe the plaintiff's cause of action in such general terms as to apprise the defendant of the nature of the claim against him. There shall be endorsed on the writ the amount for which the plaintiff will take judgment if the defendant fail to appear. If the defendant fail to appear, judgment shall not be rendered for a larger

amount and the costs.

Amount to be endorsed on summons only necessary when judgment is for money. 9, 108 (2 N. W., 227). Claim was described as "for $75, with ten per cent interest from February 19, 1880, and ten per cent of amount as attorney fee upon a certain promissory note," and it was held sufficient. 13, 35 (13 N. W., 15). It is sufficient if summons issued by county judge describe plaintiff's cause of action in general terms, such as being "upon one promissory note," or the like. 12, 204 (10 N. W., 707).

5380 (911). The summons must be returnable not more than twelve days from its date, and must, unless accompanied with an order to arrest, be served at least three days before the time of appearance, by delivering a copy of the summons, with the endorsement thereon (certified by the constable or person serving the same to be a true copy), to the defendant, or leaving the same at his usual place of residence; Provided, That an acknowledgment on the back of the summons, or the voluntary appearance of a defendant is equivalent to service.

Sufficiency of service, see 21, 60 (31 N. W., 262). Reading summons not sufficient. Copy must be left with defendant. 9, 504 (4 N. W., 237). A defendant who has appeared at any time cannot have judgment set aside but must appeal. 16, 230 (20 N. W., 636, 877). Summons returnable on Sunday or holiday not void but returnable on the next court day. 23, 735 (20 N. W., 637); 15, 661 (20 N. W., 30).

5381 (912). A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief offier, or if its chief officer be not found in the county, upon its cashier, treasurer, sec

retary, clerk, or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office, or usual place of business of such corporation, with the person having charge thereof.

Applies to railroad and all other corporations, foreign as well as domestic. 23, 557 (37 N. W., 462).

5382 (913). When the defendant is an incorporated insurance company, and the action is brought in a county in which there is an agency thereof, the service may be upon the chief officer of such agency.

5383 (914). When the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent.

This does not include service under sec. 5382 of code. 23, 557 (37 N. W., 462). Service on a general agent of insurance company good. 28, 653 (44 N. W., 991).

5384 (915). When the defendant is a minor under the age of fourteen years the service must be upon him and upon his guardian or father; or, if neither of these can be found, then upon his mother, or the person having care or control of the infant, or with whom he lives. If neither of these can be found, or if the minor be more than fourteen years of age, service on him alone shall be sufficient. The manner of service may be the same as in the case of adults.

APPEARANCE.

5385 (916). The parties are entitled to one hour in which to appear, after the time mentioned in the summons for appearance, but are not bound to remain longer than that time, unless both parties have appeared, and the justice being present, is engaged in the trial of another cause. In such case, the justice may postpone the time of appearance until the close of such trial.

If defendant appear according to common or sun time it is sufficient. 28, 668 (44 N. W., 872)

ARREST BEFORE JUDGMENT.

5386 (917). An order for the arrest of the defendant in a civil action shall be made by the justice of the peace before whom the same is brought, when there is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, made before any person authorized by law to administer oaths, stating the nature of the plaintiff's claim, that it is just, the amount thereof as near as may be, and establishing one or more of the following particulars: First-That the defendant has removed or begun to remove any of his property out of the county, with the intent to defraud his creditors. Second-That the defendant has begun to convert his property, or any part thereof, into money, for the purpose of defrauding his creditors. Third-That he has property or rights in action which he fraudulently conceals. Fourth-That he has assigned, removed, or disposed of, or begun to assign, remove, or dispose of, his property, or any part thereof, with intent to defraud his creditors. Fifth-That the defendant fraudulently contracted the debt or incurred the obligation for which suit is about to be brought. The affidavit shall also contain a statement of the facts claimed to justify the belief in the existence of one or more of the above particulars.

Failure to pay village occupation tax no ground for arrest. 27, 67 (42 N. W., 913).

5387 (918). The order of arrest may be made to accompany the summons, or at any time afterwards, before judgment.

5388 (919). The order of arrest shall not be issued by a justice of the peace until there has been executed by the plaintiff, if a resident freeholder of the county where the suit is brought, otherwise by one or more sufficient sureties of the plaintiff, a written undertaking, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by reason of the arrest, if the order be