PART II.

CODE OF CIVIL PROCEDURE.

PRELIMINARY PROVISIONS.

5591 SECTION 1. [Construction of code.] The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. Its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object and assist the parties in obtaining justice. [R. S., 394. G. S., 524.]

TITLE I.-FORM OF CIVIL ACTIONS.

5592 SEC. 2. [One form of action.] The distinction between actions at law and suits in equity, and the form of all such actions and suits heretofore existing are abolished; and in their place there shall be hereafter but one form of action, which shall be called a civil action. [Amended 1867, 71.]

5593 SEC. 3. [Parties-Designation.] In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

5594 SEC. 4. [Issues-Feigned-Not plead.] There can be no feigned issues; but a question of fact not put in issue by the pleadings may be tried by a jury, upon an order for the trial, stating distinctly and plainly, the question of fact to be tried; and such order is the only authority necessary for a trial.

TITLE II.-TIME OF COMMENCING CIVIL ACTIONS.

5595 SEC. 5. [Limitation.] Civil actions can only be commenced within the time prescribe in this title, after the cause of action shall have accrued.

5596 SEC. 6. [Recovery of real property-Mortgages.] An action for the recovery of the title or possession of lands, tenements, or hereditament, can only be brought within ten years after the cause of such action shall have accrued. This section shall be construed to apply also to mortgages. [1869, § 1, 67. Took effect July 1, 1869.]

SEC. 1. Object stated. 2 Neb., 137. Construction liberal. 14 Neb., 302. General rules. 17 Neb., 204. 322. SEC. 2. Distinction between law and equity not abolished. 3 Neb., 115. 4 Id., 587. Distinction stated. 6 Neb., 85. Fictitious issu s are abolished. 3 Neb., 116.

SEC. 4. Equity case not subject to trial by jury, though special facts may be submitted to jury. 10 Neb., 188. 15 Id., 108. And defendant not entitled to jury trial on foreclosure of mechanic's lien. 15 Neb., 437. And jury not allowed in contempt cases. 13 Neb., 451.

SEC. 5. Statute does not run against the state. 11 Neb., 409. Construction and general operation of statute considered. 5 Neb., 370. 7 Id., 404. 9 Id., 233. 15 Id., 196. 20 Id., 593. Benefits of statute may be waived and will be unless pleaded. 15 Neb.. 196. 16 Id., 664. Statute may be interposed on demurrer. 3 Neb., 87. Face of petition should show, however, that statute has run. 5 Neb., 464. 9 Id., 232. 16 Id., 5. Mere want of knowledge of facts, which if known would be sufficient to sustain a cause of action, will not prevent the running of the statute. 16 Neb., 83. Dismissal without hearing on merits, and judgment of nonsuit not a bar. 11 Neb., 322. 14 Id., 418. 16 Id.. 387. Language of the statute limits time in which actions may be commenced after the accruing of the cause of action, or the right to enforce the action is brought only; but it applies equally to the same facts or rights when they are plead as a defense or counter-claim, or in the nature of a cross-action. 21 Neb., 420. General provisions of code apply to cities of the second class having more than 5,000 inhabitants, notwithstanding a provision in the act creating such cities, that action shall be brought within six months. 23 Neb., years." Change in running period of statute applies to action As against right to redeem conveyance absolute, but in fact a money due, and refusal to reconvey. 1 Neb., 344. Statute comagainst incumbrances. 7 Neb., 401. 10 Id., 150. Foreclosure of

775.

SEC. 6. Original section read "twenty-one subsequently brought. 4 Neb., 46. 20 Id., 353. mortgage, statute does not run until tender of mences to run at once on breach of covenant

(1139)

5597 SEC. 7. [Same-Persons under disability.] Any person entitled to commence any action for the recovery of the title or possession of any lands, tenements, or hereditaments, who may be under any legal disability when the cause of action accrues, may bring such action within ten years after the disability is removed, and at no time thereafter. [R. S., 395. Amended to take effect September 1, 1873. G. S., 525.]

5598 SEC. 8. [Forcible entry and detainer.] An action for the forcible entry and detainer, or forcible detainer only, of real property can only be brought within one year after the cause of such action shall have accrued.

5599 SEC. 9. [Other civil actions-Limitations.] Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued.

5600 SEC. 10. [Written instrument-Foreign judgment.] Within five years, an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment.

5601 SEC. 11. [Parol contract.] Within four years, an action upon a contract, not in writing, expressed or implied; an action upon a liability created by statute, other than a forfeiture or penalty.

5602 SEC. 12. [Trespass to realty-Personalty-Replevin-TortsFraud.] Within four years, an action for trespass upon real property; an action for taking, detaining, or injuring personal property, including actions for the specific

mortgage barred in ten years. 8 Neb., 268. 12 Id., 469. 14 Id., 418. 17 Id., 259. 20 Id., 500. Notes secured by mortgage continue as evidence of debt until mortgage is barred. 20 Neb., 126, 132. See 2 Neb., 26. 5 Id., 466. 6 Id., 391. 9 Id.. 232. Adverse possession as a bar. 4 Neb., 47. 13 Id., 356, 417. 17 Id.. 77, 81, 237. 37 Id., 353. On facts stated, held, that defendant having been in adverse possession with title derived from sale under trust deed for more than 10 years, action was barred. 22 Neb., 696. Statute will not run in favor of occupant, unless occupancy and possesion are adverse to true owner; possession must be as owner and adverse to every other person. 23 Neb., 80. Party claiming title to land, must not only have a possession adverse to true owner, but occupy same as owner during whole statutory period. 21 Neb., 385. One who has been in open, notorious, exclusive possession of real estate for ten years, becomes vested with valid title. 21 Neb., 683. Rule concerning adverse possession applicable to public roads in favor of public so far as it relates to mere easement. 21 Neb., 232. Burden of proof in action of ejectment, where defendant relies upon a statute of limitations as a defense. 21 Neb., 270. Where statute has begun to run in favor of cestui que trust, it will not be suspended by death of trustee. 21 Neb., 411. Where cestui que trust is in possession of trust property as his own, statute will not run against him in favor of trustee, so as to bar his right to the property. 21 Neb., 411. Where trust relation exists by act of law, statute runs in favor of persons charged with trusteeship. 26 Neb., 33. Where a party entering land has complied with the law in all respects to entitle him to a patent therefor, statute will run against party entering land or his grantee in favor of one holding adversely from day of such entry. 23 Neb., 847. Where plaintiffs in ejectment claim title through their father, his death and their minority will not arrest running of statute. 24 Neb., 673. In a dispute as to boundary lines between two tracts, held, that leasing by defendant of plaintiff's tract outside that enclosed by that of defendant would not prevent running of statute as to strip in dispute, it being enclosed as part of defendant's tract and occupied by him as owner. 24 Neb., 669. 25 Id., 766. Real estate deeded by husband to wife. 13 Neb., 455. Rents and profits. 12 Neb., 544. Exclusive possession excludes tax liens. 27 Neb., 829. Purchase of tax title does not cause break in running of statute. 27 Neb., 47. Absolute title acquired by ten years' exclusive adverse possession. 27 Neb., 57. 30 Id., 373. 31 Id., 599. Under color of title. 31 Id., 51. Under tax deed. Id., 793. 37 Id., 353. Color not essential. Id., 803. For all purposes of ownership. 32 Id., 666. Concurrent possession. 38 Id., 104. Action by subsequent mortgagee to redeem from decree. 61 N. W. R., 601. SEC. 8. Cited 16 Neb., 576. SEC. 9. See note to sec. 5.

SEC. 10. County warrants not within statute. 1 Neb., 382. Statute will not run in two different states at same time; commences to run on removal into state. 9 Neb., 501. 12 Id., 501. Court cannot add time of residence in another state to time here to create bar. 12 Neb., 501. On facts stated, promise and payment, held, not to take debt out of statute. 2 Neb., 22. 11 Id., 418. 12 Id., 469. Promises, held, to take debt out of statute. 16 Neb., 21, 55. Receipt and indorsement on promissory note by the holder of money realized from a collateral left with him by the maker for that purpose, will remove bar of statute. 14 Neb., 194. Pleadings. 16 Neb., 677. A note secured by a mortgage is not a "specialty" within the meaning of the statute. 5 Neb., 87. Part payment or a new promise upon an outlawed firm note, made by one partner, after dissolution, does not revive the debt_against another partner. 5 Neb., 370. A judgment of a state court properly authenticated is conclusive upon the merits of the suit, but the statute of limitation may be plead in an action brought in another state upon such judgment. 6 Neb., 428. Action for damages for breach of covenants of warranty in a deed may be brought within five years. 21 Neb., 532. Action on foreign judgment not barred until defendant had completed five years' residence in this state. 24 Neb., 186. Foreign judgment revived in foreign state and action brought thereon in this state within five years, held, not barred. 25 Neb., 691. Judgment of another state, held, to be a foreign judgment and action barred thereon unless commenced within five years. 25 Id., 111. Statute runs for or against school districts in same manner as it does for or against individuals. 22 Neb., 206. (1 Neb., 173, distinguished.) Statute runs against village warrants; barred in five years. 24 Neb., 246. And see 17 Neb., 92. 19 Id., 93. 32 Id., 99. Foreign judgment revived by publication. Id., 556.

SEC. 12. Cited 4 Neb., 95. Action for rent and profits barred in four years; recovery not barred by occupying claimant's act. 12 Neb., 544. Action by junior incumbrancer to redeem land sold at execution or judicial sale must be brought within four years. 21 Neb., 420. 24 Id., 802. Evidence examined and held, insufficient to bar prosecution for bastardy. 24 Neb., 781. Creditor's knowledge of fraudulent character of conveyance. 28 Neb.. 479. Replevin of mortgaged chattels unlawfully seized. 31 Id., 622. When statute begins to run in case of fraud discussed. 36 Id., 775. Cited 37 Id., 22.

recovery of personal property; an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud, but the cause of action in such case shall not [be] deemed to have accrued until the discovery of the fraud.

5603 SEC. 13. [Injury to character-Assault-Malicious prosecution-False imprisonment-Penalty.] Within one year an action for libel, slander, assault and battery, malicious prosecution, or false imprisonment; an action upon a statute for a penalty or forfeiture, but where the statute giving such action prescribes a different limitation, the action may be brought within the period so limited. An action upon the

5604 SEC. 14. [Official bond-Undertaking.] 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.

5605 SEC. 15. [Contract-Failure of consideration.] Actions brought for damages growing out of the failure, or want of consideration of contracts, express or implied, or for the recovery of money paid upon contracts, express or implied, the consideration of which has wholly or in part failed, shall be brought within four years.

5606 SEC. 16. [Other relief.] An action for relief not herein before provided for, can only be brought within four years after the cause of action shall have accrued.

5607 SEC. 17. [Legal disabilities-Action in rem.] If a person entitled to bring any action mentioned in this title, except for a penalty or forfeiture, be, at the time the cause of action accrued, within the age of twenty-one years, a married woman, insane, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this title after such disability shall be removed. The absence from the state, death, or other disability of a non-resident, save the cases mentioned in this section, shall not operate to extend the period within which actions in rem shall be commenced by and against such non-resident, or his representatives.

5608 SEC. 18. [Actions barred by laws of other states.] All actions, or causes of action, which are or have been barred by the laws of this state, or any state or territory of the United States, shall be deemed barred under the laws of this state.

5609 SEC. 19. [Action when commenced.] An action shall be deemed commenced, within the meaning of this title, as to the defendant, at the date of the summons which is served on him; where service by publication is proper, the action shall be deemed commenced at the date of the first publication, which publication shall be regularly made.

SEC. 13. When right of action for malicious prosecution is complete, see 13 Neb., 466. Action against stockholder not within section. 29 Neb., 483, 302, 798. SEC. 14. Action on county treasurer's bond barred in ten years. 22 Neb.. 219, 229. SEC. 16. Cases of trusts. 16 Neb., 121. 20 Id., 594 Where there is no continuing trust, and money received by agent as his, not to be paid at a date later than its receipt. statute runs in his favor from time he received money. 20 Neb., 594. Motion to retax costs. 17 Neb, 310. Revivor of actions. 18 Neb.. 81. When statute ceases to run. 19 Neb., 36. School bonds. 19 Neb., 93. School land interest 20 Neb., 202. Failure to pay interest on school lands for fifteen years, during ten of which property has been in possession of subsequent purchaser; action by first purchaser barred. 25 Neb., 423. Continuing nuisance; recovery of damages in one action not a bar to recovery of damages thereafter sustained. 22 Neb., 352. Tax liens. 26 Neb., 562. Actions by mandamus. 30 Id., 520, 34 Id., 196. Stale claims. 35 Id., 407. To correct mistake. 30 Id., 385. Action by subsequent mortgagee to redeem from decree. 61 N. W. R., 601.

SEC. 17. See chap. 53, ante, and 17 Neb., 667. See also 5 Neb., 89, 465. 6 Id.. 391. 9 Id., 232. 37 Id., 353. Foreclosure of mechanic's lien an action in rem. 42 Id., 267. Proviso excepts foreclosure of real estate mortgages. 36 Id., 381. Proviso a restriction on sec. 20. Action in rem construed. 37 Id., 359.

2 Neb., 136. Summons

16 Neb., 5. 36 Id., 73.

served on defendant See also 11 Neb., 343.

SEC. 18. Cited 27 Neb., 251. Defense must be plead. 36 Id., 616. 62 N. W. R., 484. SEC. 19. Jurisdiction attaches when defendant is legally served. issued after action barred by statute does not confer jurisdiction. 13 Id., 231. 19 Id., 36. Applicable only to this title. 40 Id., 597.