county in which the defendant in error or his attorney of record may be; and if the writ issue to a foreign county, the sheriff thereof may return the same by mail to the clerk, and shall be entitled to the same fees as if the same had been returnable to the district court of the county in which such officer resides. The defendant in error, or his attorney, may waive in writing the issuing or service of the summons.

6177 SEC. 586. [Transcript.] The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated, or modified. No written or printed abstract or any copy of an abstract of the record shall be required in any case in the supreme court of this state. This act shall apply to cases now pending in the supreme court. [Amended 1887, chap. 96. Took effect July 1, 1887.]

6178 SEC. 587. [Same-How furnished.] Judges of probate courts, justices of the peace, and other judicial tribunals having no clerk, and clerks of every court of record, shall upon request and being paid the lawful fees therefor, furnish an authenticated transcript of the proceedings, containing the judgment or final order of said courts, to either of the parties to the same, or to any person interested in procuring such transcript.

6179 SEC. 587a. [Original bills of exceptions may be used.] That in all cases or proceedings now pending or hereafter to be brought in any district court of this state, as well as in all cases or proceedings that have been finally adjudicated in any of said courts within six months next prior to the date of the passage of this act, which it is sought or desired to remove to the supreme court of this state, on proceedings in error, or by appeal in equity in the manner now prescribed by law, it shall not be necessary to copy the bill, or bills of exception, or the deposition, testimony, and proof in cases that have been preserved in form similar to bills of exception or otherwise, as contemplated by an act passed March 3, 1873, entitled, "An act to provide for appeals in actions in equity," taken or used in any such case or proceedings into the transcript or record for the supreme court, but such original bills of exception and testimony in equity and cases at law so as aforesaid preserved, shall be, on the request of any party desiring to so prosecute such case or proceeding to the supreme court, attached to the transcript or record of such other parts of the record in the case or proceeding as may be desired by such party, and the transcript or record for the supreme court, so made up shall be received in all respects as if the said bill or bills of exceptions or depositions, testimony, and proof in equity cases so as aforesaid properly preserved were copied into such transcript or record for the supreme court. [1885, chap. 96.]

SEC. 586. A transcript filed before petition in error will not for that reason be stricken from files. 12 Neb.. 524. Transcripts should be full and complete, but contain only what is necessary to enable court to pass on questions presented. 1 Neb., 106, 363. 2 Id., 10. 13 Id., 201. Transcripts should only contain such portion of the record below as is necessary to a correct understanding of the case. 24 Neb., 492. Where no objection is made to the summons, or to the return of the officer thereon, such summons should be omitted from the transcript. So with journal entries not involved in the case. 23 Neb., 707. Transcript must show when and where court was held, its terms, judge, and names of officers, and be authenticated by clerk. 1 Neb., 325. 2 Id., 170. 6 Id., 418. If unnec essary matter is put in record, cost of it will be taxed to party in fault. 12 Neb., 201, 476. If defective so court cannot examine questions judgment will be affirmed. 13 Neb., 462. Should include pleadings, aliter judgment will be affirmed. 14 Neb., 262. But testimony need not be included where facts are not disputed and the only ques tion is one of law. 4 Neb., 55. Notes of clerk are not a part of record. 2 Neb., 66. The affidavit of the clerk of the district court cannot be resorted to for the purpose of correcting a transcript of the record certified to by him. If a false or erroneous record is certified to by him, it should be corrected by a certified transcript of the record. as it is. 21 Neb., 597. The transcript of the trial court, duly certified by the clerk, will alone be recognized as to all matters which are properly of record in that court. 23 Neb., 464. Paper not rightly in record stricken out on motion. 1 Neb., 181. But motion to strike out part of transcript not considered. 3 Ñeb., 186. Should contain ruling of court on objections made. 10 Neb., 38. And depositions, to review order suppressing them. 12 Neb., 85. If trial court refuse to permit supplemental pleading to be filed, it must be made a part of the record. 21 Neb., 313. Amendment of this section repeals law of 1885 requiring printed abstracts of record. Decisions prior to repeal see 19 Neb., 59. 20 Id., 205. No bills of exceptions in county court. 38 Id., 520.

SEC. 587a-587d. "An act to authorize the use of original bills of exceptions and testimony preserved in equity cases, in making transcripts and records of cases and proceedings at law and in equity, on removal thereof to the supreme court, and to provide for the costs incidental thereto." Approved and took effect March 1, 1881. Sections 1, 2, and 4 amended 1885, chap. 96. Cited 17 Neb., 520, 642. Rehearing denied, though cause was disposed of without argument or brief of defendant. 7 Neb., 205. Rehearing not granted upon new matter dehors the record. 6 Neb., 253. Leave to file motion for rehearing after rule day denied. 12 Neb., 208. Motion for rehearing must distinctly specify ground upon which it is based. 14 Neb., 21.

6180 SEC. 5876. [Certificate of clerk.] And it is further enacted that when the original bill or bills of exception or testimony in equity and law cases, is so as foresaid made a part of a transcript or record for the supreme court, the clerk shall state such fact in his certificate thereto, and omit to certify that the same have been copied into such record or transcript.

6181 SEC. 587c. [Original returned after trial.] When any case or proceeding in which the record or transcript has been so as aforesaid made up, shall have been finally determined in the supreme court, the said original bill or bills of exception, and testimony, shall be by the clerk of the supreme court transmitted to the clerk of the district court below, whence such case or proceeding was removed, on the request of any party to the suit or proceeding, provided the cost of the transmittal thereof shall be first paid to said clerk of the supreme court if he shall demand it, by the party applying therefor.

6182 SEC. 587d. [Rehearing.] In the event a rehearing of any such cause or proceeding shall be allowed by the supreme court, or if for any other reason said court shall need or desire the use of such original bill or bills of exception or testimony in equity and law cases, it is hereby authorized to order the return of the same to it, and it shall be the duty of the clerk of the court in whose custody the same may be to transmit the same to the clerk of the supreme court upon being personally served with a copy of such order of the supreme court, duly certified under the seal of the court, and the expense of the transmittal of such bills and testimony, together with costs made in recording, certifying, and serving such order shall be taxed to the unsuccessful party to such suit or proceeding unless the supreme court shall otherwise order; Provided, That the party at whose instance such expense of transmittal is to be made shall advance the same to the clerk who is desired to incur such expenses if required by him. Service of such certified copy of said order may be made by any person. If done by the sheriff of any county, his official return shall be sufficient evidence of the fact of service. If by any other person, the service shall be sufficiently proved by his affidavit to the fact. [1885, chap. 96.]

6183 SEC. 588. [Stay of execution.] No proceeding to reverse, vacate, or modify any judgment or final order rendered in the probate court, or district court, except as provided for in the next section, and the fourth subdivision of this section, shall operate to stay execution, unless the clerk of the court in which the record of said judgment or final order shall be, shall take a written undertaking, to be executed on the part of the plaintiff in error to the adverse party, with one or more sufficient sureties, as follows: First-When the judgment or final order sought to be reserved, directs the payment of money, the written undertaking shall be in double the amount of the judgment or order, to the effect that the plaintiff in error will pay the consideration money and costs in case the judgment or final order shall be affirmed in whole or in part. Second-When it directs the execution of a conveyance or other instrument, the undertaking shall be in such sum as may be prescribed by any court of record in this state, or any judge thereof, to the effect that the plaintiff in error will abide the judgment, if the same shall be affirmed, and pay the costs. Third -When it directs the sale or delivery of possession of real property, the undertak

SEC. 588. Amendatory act of 1875, entitled "An act to correct clerical errors occuring in the publication of sections ✶ ✶✶ five hundred and eighty-eight of chapter fifty-seven * * * of the General Statutes." recited "That in order to correct clerical errors in the publication of the General Statutes, section" (numbering it) "be amended to read as follows," etc., and changed this section so that word "condemnation" in original law and in General Statutes in sub. First, should read "consideration;" added "for" in line three, not in original; and added "of the use and occupation of the property from the date" in sub. Third; which latter was a clerical error in G. S. There was no repealing clause. Bond not necessary to obtain review of case. 17 Neb., 401. Amount of bond not fixed by court in case of mandamus requiring street railway company to operate its road. 19 Neb., 150. Supersedeas bond may be amended. 19 Neb., 222. Filing of bond does not supersede judgment of removal from office so as to entitle incumbent to retain office pending proceedings in error. 19 Neb., 450. For defenses to actions on undertakings see 62 N. W. R. 297.

ing shall be in such sum as may be prescribed by any court of record, or any judge thereof, to the effect that during the possession of such property by the plaintiff in error, he will not commit or suffer to be committed, any waste thereon, and if the judgment be affirmed he will pay the value of the use and occupation of the property, from the date of the undertaking until the delivery of the possession pursuant to to the judgment, and all costs. Fourth-When it directs the assignment or delivery of documents, they may be placed in the custody of the clerk of the court in which judgment was rendered, to abide the judgment of the appellate court, or the undertaking may be in such sum as may be prescribed as aforesaid, to abide the judgment and pay costs, if the same shall be affirmed. [Amended 1875, 131. Took effect Feb. 25, 1875.]

6184 SEC. 589. [Same-Instrument deposited in court.] Instead of the undertaking prescribed in the second subdivision of the last section, the conveyance or other imstrment may be executed and deposited with the clerk of the court in which the judgment was rendered or order made, to abide the judgment of the appellate court.

6185 SEC. 590. [Same-When takes effect.] Before the written undertaking herein mentioned in section five hundred and eighty-eight shall operate to stay execution of the judgment or order, a petition in error must be filed in the appellate court, and the execution of the undertaking and the sufficiency of sureties must be approved by the court in which the judgment was rendered or order made, or by the clerk thereof; and the clerk shall indorse said approval, signed by himself, upon the undertaking, and file the same in his office for the defendant in error. [Amended to take effect Sept. 1, 1873. G. S., 630.]

6186 SEC. 591. [Judgment, how enforced when error taken.] In an action arising on contract, for the payment of money only, notwithstanding the execution of the undertaking in the last section mentioned, to stay proceedings, if the defendant in error give adequate security to make restitution in case the judgment is reversed or modified, he may, upon leave obtained from the court below, or a judge thereof in vacation, proceed to enforce the judgment. Such security must be an undertaking executed to the plaintiff in error by at least two sufficient sureties, to the effect that if the judgment be reversed or modified, he will make full restitution to the plaintiff in error of the money by him received under the judgment.

6187 SEC. 592. [When commenced-Limitation.] No proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment or making of the final order complained of, or in case the person entitled to such proceedings be an infant, a person of unsound mind, or imprisoned within one year as aforesaid, exclusive of the time of such disability; Provided, That the provisions of this act shall only apply to judgments or decrees rendered after the date of its taking effect. [1875, 40. Amended 1877, 14. Took effect June 1, 1877.]

6188 SEC. 593. [Stay of execution-Undertaking.] No proceedings to reverse, vacate, or modify any judgment rendered, or final order made, by a justice of the peace, shall operate as a stay of execution, unless the clerk of the district court shall take a written undertaking to the defendant in error, executed on the

SEC. 591. See section 477j.

SEC. 592. Original section read three years.

Amended in 1875 to read six months. Amended in 1877 as it now stands. Judgment rendered May 17, 1877, petition in error filed Dec. 13, 1877, held, too late, as act of 1877 did not take effect until June 1. 7 Neb., 125. And see 8 Neb., 147. Proceedings not deemed " commenced" until summons which shall be duly served is issued. 8 Neb., 150. But if issued within the year, it may be served afterwards. 10 Neb.. 332. Words unsound mind" are used in same sense as word "insane." 10 Neb., 541. See 14 Neb., 431. 16 Id., 290. 21 Id., 674. Note to sec. 582. Acceptance of service of notice of appeal in error case. Case dismissed. 29 Neb., 131. All defendants to joint judgment must be made parties within the year. Id., 612. Commenced in one year from overruling motion for new trial. 34 Id., 406.

SEC. 593. Cited 17 Neb., 401.

Cited 28 Id., 250.

part of the plaintiff in error, by one or more sufficient sureties, to the effect that the plaintiff will pay all the costs which have accrued or may accrue on such proceedings in error, together with the amount of any judgment that may be rendered against such plaintiff in error, either on the further trial of the case, after the judgment of the court below shall have been set aside or reversed, or upon and after the affirmance thereof in the district court. Nor shall said proceedings operate as a stay of execution on judgments of restitution rendered in actions for the forcible entry and detention, or the forcible detention only, of lands and tenements, unless a further undertaking shall be taken in the manner aforesaid, conditional for the payment to the defendant in error of all money or sums of money that have accrued or may accrue to said defendant from the plaintiff in error for the use, occupation, or rent of the lands and tenements in controversy, in case the judgment sought to be reversed, shall be affirmed. [Amended 1871, 110. Took effect Mar. 25, 1871.]

6189 SEC. 594. [Proceedings in supreme court on reversal-Mandate.] When a judgment or final order shall be reversed either in whole or in part, in the supreme court, the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment; and the court reversing such judgment or final order, shall not issue execution in causes that are removed before them on error, on which they pronounced judgment as aforesaid, but shall send a special mandate to the court below, as the case may require, to award execution thereupon; and it shall be the duty of the judges of the supreme court to prepare and file their opinion in every case as brought before them, within sixty days after the decision of the same, and no mandate shall be sent to the court below until the opinion provided for by this section has been filed. The court to which such special mandate is sent, shall proceed in such case in the same manner as if such judgment or final order had been rendered therein, and on motion and good cause shown, it may suspend any execution made returnable before it by order of the supreme court, in the same manner as if such execution had been issued from its own court, but such power shall not extend further than to stay proceedings until the matter can be further heard by the supreme court. [Amended 1875, 40. Took effect Feb. 25, 1875.] 6190 SEC. 595. [Costs on error.] When a judgment or final order is reversed, the plaintiff in error shall recover his costs, and when reversed in part, and affirmed in part, costs shall be equally divided between the parties.

6191 SEC. 596. [No reasonable ground of error-Penalty.] When a judgment or final order shall be affirmed in the supreme court, the said court shall also render judgment against the plaintiff in error for five per cent. upon the amount due from him to the defendant in error, unless the court shall enter upon its minutes, that there was reasonable ground for the proceedings in error.

6192 SEC. 597. [Mistake of clerk.] A mistake, neglect, or omission of the clerk shall not be a ground of error, until the same has been presented and acted upon in the court in which the mistake, neglect, or omission occurred.

6193 SEC. 598. [Premature judgment.] Rendering judgment before the action stood for trial according to the provisions of this code, shall be deemed a clerical error.

6194 SEC. 599. [Certiorari writ abolished.] Writs of error and certiorari to reverse, vacate, or modify judgments or final orders in civil cases, are abol

SEC. 594. If new trial cannot be awarded supreme court will enter a judgment and not remand cause, 2 Neb., 290. If a party after an adverse ruling upon his demurrer to a pleading elects to stand upon it, and brings same up for review, when judgment is affirmed, cause will not be remanded with leave to answer to the merits. 8 Neb., See 20 Neb., 405. 24 Id., 666. Mistake in entry of judgment, corrected in supreme court without remanding cause for new trial. 25 Neb., 433. On affirmance clerk district court may issue execution. 26 Neb., 151. Cited 40 Id., 274. SEC. 596. Held unconstitutional. 17 Neb., 703. 42 Id., 847.

502.

ished, but courts shall have the same power to compel, complete and perfect transcripts of the proceedings containing the judgment or final order sought to be reversed, to be furnished, as they heretofore had under writs of error and certiorari.

6195 SEC. 600. [Affirmance of justice's judgment.] If the judgment of a justice of the peace, taken on error, as herein provided, to the district court, be affirmed, it shall be the duty of such court to render judgment against the plaintiff in error, for the costs of suit, and to award execution therefor; and the court shall thereupon order its clerk to certify its decision in the premises, to the justice, that the judgment affirmed may be enforced, as if such proceedings in error had not been taken; or such court may award execution to carry into effect the judgment of such justice, in the same manner as if such judgment had been rendered in the district

court.

6196 SEC. 601. [Reversal of justice's judgment.] When the proceedings of a justice of the peace are taken on error to the district court, in manner aforesaid, and the judgment of such justice shall be reversed or set aside, the court shall render judgment of reversal, and for the costs that have accrued up to that time, in favor of the plaintiff in error, and award execution therefor; and the cause shall be retained by the court for trial and final judgment as in cases of appeal.

6197 SEC. 601a. [Complete record supreme court.] A complete record of every cause in the supreme court, as soon as it is finally determined, shall be made by the clerk of such court. Such record shall consist of the petition in error, the process and subsequent proceedings, and opinion of the court, but shall not include the transcript of proceedings had in the district court. [G. S., 713.]

CHAPTER II.-PROCEEDINGS TO REVERSE, VACATE, OR MODIFY JUDGMENTS AND

ORDERS IN THE COURTS IN WHICH THEY ARE RENDERED.

6198 SEC. 602. [District court-After term.] A district court shall have power to vacate or modify its own judgments or orders, after the term at which such judgment or order was made: First-By granting a new trial of the cause, within the time and in the manner prescribed in section three hundred and eighteen. Second-By a new trial granted in proceedings against defendants constructively summoned, as provided in section seventy-seven. Third-For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order. FourthFor fraud practiced by the successful party in obtaining the judgment or order. Fifth-For erroneous proceedings against an infant, married woman, or person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. Sixth-For the death of one of the parties before the judgment in the action. Seventh-For unavoidable casualty or misfortune, preventing the party from prosecuting or defending. Eighth-For errors in a judgment shown by an infant in twelve months after arriving at full age, as prescribed in section four hundred and forty-two. Ninth-For taking judgments upon war

on error.

SEC. 601. Judgment of reversal may be reviewed by supreme court. 5 Neb., 241. 19 Id., 452. District court cannot acquire jurisdiction of cause on appeal if lower court had not. 14 Neb., 519. Having jurisdiction, court may supply defects in record. 12 Neb., 524. Section cited 19 Neb., 590. 22 Id., 302. SEC. 602. Ignorance of time fixed for holding court no ground for relief. 40 Neb., 633. Stranger cannot be substituted as party defendant. 8 Neb., 467. Married women not protected. 6 Neb., 187. Proceedings reviewable 2 Neb, 145. 5 Neb., 193. 9 Id., 533. Section limits power of court. 10 Neb., 192. (See note to sec. 318.) Power to vacate discretionary. 2 Neb., 145. 3 Id., 27. 9 Id., 220, 277. 17 Id., 50. Judgment entered on appearance by attorney without authority; may be opened with leave to defendant to answer. 12 Neb., 113. Power given does not confer original jurisdiction. 5 Neb., 193. Purchaser under judgment subsequently opened not affected, 15 Neb., 203, 197. 18 Id., 190. Provisions of sec. 318 not applicable to proceedings under this section. 17 Neb., 71. Practice and pleadings. Id. Decree of divorce may be set aside after term at which rendered when obtained by fraud. 24 Neb., 554. Section cited 13 Neb., 229. 14 Id., 454. 15 Id., 619. 16 Id., 574. 17 Id., 310. 23 Id., 485. Divorce decree set aside on motion where notice required defendant to answer at wrong time. 26 Id., 236. Want of actual knowledge of summons served no excuse. 28 Id., 554. Cited 38 Id., 561. 28 Id., 785. Correction of records. 35 Id., 387. Does not apply to justices. 37 Id., 360. Not applicable to actions by divorced wife for support. 42 Id., 612. Action should be brought in same county. 87 Id., 535.