6456 SEC. 935. [Garnishee, how served.] The copy of the order and the notice shall be served upon the garnishee, as follows: If he be a person, they shall be served upon him personally, or left at his usual place of residence; if a corporation, they shall be left with the president or other head of the same, or the secretary, cashier, or managing agent thereof.

6457 SEC. 936. [Same-Answer.] The garnishee shall appear before before the justice, in accordance with the command of the notice, and shall answer, under oath, all questions put to him touching the property of every description, and credits of the defendant in his possession or under his control, and he shall disclose, truly, the amount owing by him to the defendant, whether due or not, and, in the case of a corporation, any stock therein held by or for the benefit of the defendant, at or after the service of the notice.

6458 SEC. 937. [Same-Payment by-Discharge-Costs.] A garnishee may pay the money owing to the defendant by him, to the officer having the order of attachment, or into the 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.

6459 SEC. 938. [Same-Failure to answer.] If the garnishee do not appear and answer, as required by section nine hundred and thirty-six, the justice may proceed against him by attachment, as for a contempt.

6460 SEC. 939. [Same-When debtor-Proceedings.] If the garnishee appear and answer, and it is discovered on his examination that at or after the service of the order of attachment and notice upon him he was possessed of any property of the defendant, or was indebted to him, the justice may order the delivery of such property and the payment of the amount owing by the garnishee into the court, or 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 direct.

court may

6461 SEC. 940. [Further proceedings against garnishee.] If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure is not satisfactory to the plaintiff, or if he fail to comply with the order of the justice to deliver the property and pay the money owing into court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action in his own name, as in other cases; and thereupon such proceedings may be had as in other actions and judgment may be rendered in favor of the plaintiff, for the amount of the property and credits of every kind of the defendant, in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee. If the plaintiff proceed against the garnishee by action, for the cause that his disclosure was unsatisfactory, unless it appear in the action that such disclosure was incomplete, the plaintiff shall pay the costs of such action. The judgment in this action may be enforced as judgments in other cases. When the claims of the plaintiff in attachment are satisfied, the defendant in the attachment may, on motion, be substituted as the plaintiff in the judgment.

SEC. 935. Service on book-keeper sufficient. 30 Neb., 80.

SEC. 936. Garnishee duly served liable to plaintiff for debtor's property. 30 Neb., 80.
SECS. 939, 940. Liability of garnishee. 9 Neb., 416. See note to secs. 207, 244, ante.

Discharge of gar

6462 SEC. 941. [Judgment, when rendered nishee.] Final judgment shall not be rendered against the garnishee until the action against the defendant in attachment has been determined; and if, in such action, judgment be rendered for the defendant in attachment, the garnishee shall be discharged and recover costs. If the plaintiff shall recover against the defendant in attachment, and the garnishee shall deliver up all property, moneys, and credits of the defendant, in his possession, and pay all the moneys 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 moneys so surrendered, or as the court may think right and proper.

6463 SEC. 942. [Judgment for defendant.] If judgment be rendered in the action for the defendant, the attachment shall be discharged, and the property attached, or its proceeds shall be returned to him.

6464 SEC. 943. [Same-For plaintiff-Satisfaction.] If judgment be 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 moneys arising from the sale of perishable property, if any, whether held by legal or equitable right, as may be necessary to satisfy the judgment, shall be sold by order of the justice, 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 be 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.

6465 SEC. 944. [Property retaken, when.] The justice may order the officer to repossess himself, for the purpose of selling it, of any of the attached property which may have passed out of his hands without being sold or converted into money, and the officer shall, under such order, have the same power to take the property as he would have under an order of attachment.

6466 SEC. 945. [Intervening claimants.] If any of the property which has been attached be claimed by any person other than the defendant, the claimant may have the validity of such claim tried, and such proceedings must be had thereon, with like effect, as in case the property had been seized upon execution issued by the justice and claimed by a third person.

6467 SEC. 946. [Priority of attachments.] Where several attachments are executed on the same property, or the same persons are made garnishees, the justice issuing the first order, served on the motion of any of the plaintiffs, may determine the amounts and priorities of the several attachments, and the proceeds shall be applied accordingly.

6468 SEC. 947. [Return to writ.] The officer shall return upon every order of attachment what he has done under it. The return must show 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.

6469 SEC. 948. [Order binds property-When.] An order of attachment binds the property attached from the time of service, and the garnishees shall stand liable to the plaintiff in attachment for all property, moneys, and credits in his hands, or due from him to the defendant, from the time he is served with the written notice, mentioned in section nine hundred and thirty-four; but when property is attached in the hands of a consignee, or other person having a prior lien, his lien thereon shall not be affected by the attachment.

6470 SEC. 949. [Property released on bail.] If the defendant or other person in his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff by one or more sureties resident in the county, to be approved by the justice, in double the amount of the plaintiff's claim, to be stated in his affidavit to the effect that the defendant shall perform the judgment of the justice, 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 bis hands.

6471 SEC. 950. [Action transferred to district court.] If in any case where an order of attachment has been issued by a justice of the peace, it shall appear from the return of the officer and from the examination of the garnishee, that no property, moneys, rights, credits, or effects of the defendant have been taken under the attachment, but that the defendant is the owner of an interest in real estate in the county, the justice before whom said action is pending shall, at the request of the plaintiff, forthwith certify his proceedings to the district court of the proper county, and thereupon the clerk of said court shall docket said cause, and the action shall be proceeded with in said court, in all respects as if the same had originated therein.

CHAPTER III.-BILL OF PARTICULARS.

6472 SEC. 951. [Filing.] In all cases before a justice, the plaintiff, his agent or attorney, shall file with such justice a bill of the particulars of his demand, and the defendant, if required by the plaintiff, his agent or attorney, shall file a like bill of the particulars he may claim as a set-off; and the evidence on the trial shall be confined to the items set forth in said bills.

6473 SEC. 952. [Contents.] The bill of particulars must state, in a plain and direct manner, the facts constituting the cause of action, or the claim to be setoff.

6474 SEC. 953. [Amendments.] The bill of particulars may be amended at any time before the trial, or during the trial, or upon appeal, to supply any deficiency or omission in the items, when by such amendments substantial justice will be promoted. If the amendment be made at the time of or during the trial, and it be made to appear to the satisfaction of the justice, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment must be granted. The justice may also, in his discretion, require as a condition of an amendment, the payment of costs to the adverse party, to be fixed by the justice; but such payment cannot be required unless an adjournment is made necessary by

the amendment.

CHAPTER IV.-CHANGE OF THE PLACE OF TRIAL.

6475 SEC. 954. [Grounds for.] The place of trial may be changed if on the return of process, or at any time before trial shall have commenced, it shall be made satisfactorily to appear to the justice of the peace before whom any cause is instituted, or is pending for trial, by the affidavit of either of the parties in the case, that

CHAP. III. Bill in form of account, sufficient after judgment. 13 Neb., 220. Promissory note sufficient. 14 Neb., 446. 18 Id., 185. Setting out copy of note sued on and alleging specified sum due is sufficient. 16 Neb., 9. 577. Bill of set-off required on demand of plaintiff; failure to file, no proof of same can be received, either in justice's court or on appeal. 14 Neb., 250. Set-off may be proved without pleading unless party required to file bill of particulars of such set-off. 12 Neb., 54. Set-off need not be pleaded when plaintiff sets up all items. 15 Neb.. 441. Variance in title between summons and bill, immaterial, if no objection made; defect may be cured by amendment. 12 Neb., 40. Justice should not prepare bill. 10 Neb., 491. Demurrer to bill unauthorized. 15 Neb., 646. Bill alleging that plaintiffs are wholesale dealers, etc., and that their place of business is Lincoln, Nebraska, etc., held, sufficient. 20 Neb., 323. Bill examined, and held, sufficient when attacked after judgment in a cause where parties had appeared and trial was held upon merits. 21 Neb., 370. Bill not required in action of replevin. 25 Neb., 106. 29 Neb., 586. Bill the only pleading required. 35 Id., 86. SEC. 954. Change can be had only before first trial commenced. 29 Neb., 688.

such justice is a material witness for either party, or if a jury be demanded by the adverse party, then that he cannot, as he verily believes, have a fair and impartial trial in the precinct or place for which said justice may have been elected, on account of the bias or prejudice of the citizens thereof.

6476 SEC. 955. [Where transferred.] If the place of trial be changed on account of the justice being a material witness in the cause, such cause may be transferred for trial before some other justice of the peace in the same precinct. If the place of trial be changed on account of the bias or prejudice of the citizens of such precinct or place, the case shall be taken to some justice in an adjoining precinct in the same county.

6477 SEC. 956. [Transfer of papers and record.] The justice granting such change shall deliver or transmit the papers in the cause, together with a certified transcript of the proceedings before him, to the justice to whom such change may be granted, who shall proceed therein and have the same jurisdiction, powers, and duties, in all respects whatever, as if suit had been originally instituted before him.

6478 SEC. 957. [Costs.] Before any such change shall be allowed, the costs, as specified in the next following section, shall be paid by the party applying for such change.

6479 SEC. 958. [Same.] When such change is at the instance of the plaintiff, he shall be taxed with all the costs which have accrued and which shall accrue in the cause, until such transcript and papers shall be delivered to the justice to whom such cause is removed for trial; and when on the application of the defendant, he shall be taxed for the costs which have accrued for issuing subpoenas for witnesses and service thereof, witness fees, and costs of the justice for transferring the cause to the docket of the other justice.

6480 SEC. 958a. [Same-Interest-Bias of justice.] That in all civil and criminal proceedings before justices of the peace, any defendant in such proceedings may apply for and obtain a change of venue, by filing an affidavit in the case made by the defendant, his agent, or attorney, stating that the defendant cannot, as affiant verily believes, have a fair and impartial hearing in the case on account of the interest, bias, or prejudice of the justice, and by paying the costs now required to be paid by defendant on change of venue, for the causes and in the cases mentioned in chapter four of title thirty, part two of the revised statutes, and thereupon the proceedings shall be transferred to the nearest justice of the peace, to whom the said objections do not apply, of the same county, to be proceeded with in the manner pointed out for the transfer and procedure in cases on change of venue for cause mentioned in said chapter four. [1871, § 1. 70.]

6481 SEC. 9586. [Same-Application-When made.] The application shall be made before entering upon the merits of the case by the introduction and reception of evidence; and no second change of venue shall be allowed for the same cause in the same proceeding. [Id., § 2.]

10

SECS. 958a, 958b. "An act to allow a change of venue in civil and criminal proceedings before justices of the peace, on account of the interest, bias, or prejudice of the justice." Laws, 1871, 70. G. S., 718. Took effect March 25, 1871. Affiant should state objection, if any, to nearest justice. Only one change allowed for same cause. Neb., 82. These provisions do not apply to county courts. 10 Neb., 439. Where cause is transferred to a justice of the peace, who by reason of bias and prejudice is unable to try the case, a motion to dismiss, filed by the defendant, held, properly overruled. Proper motion in such case is to remand. 21 Id., 152. Party moving cannot com plain if motion granted. Id. Where a justice made an order transferring cause to A, supposed to be the nearest justice to whom no objection would apply; but on the next day ascertained that said justice had resigned, whereupon he changed the order, transferring said cause to B. the nearest justice exercising the duties of his office, all parties being notified of said change, and a trial thereafter had before B and a jury, at which the parties appeared, held, no error. Id. In case stated, where cause was taken on change of venue to another justice, held, that by the appearance and trial before the second justice, plaintiff waived whatever error might have been committed by the first justice in setting aside judgment and granting new trial. 25 Id., 628. Evidence should be preserved by bill of exceptions. 33 Id., 348. Cited Id., 560. Affidavit in language of statute sufficient. Change must be to nearest qualified justice. 37 Id., 886. Provisions mandatory; apply only to defendants. 61 N. W. R., 630.

CHAPTER V.-ADJOURNMENTS.

6482 SEC. 959. [On motion of justice.] Upon the return day, if a jury be required, or if the justice be actually engaged in other official business, he may adjourn the trial without the consent of either party, as follows: First-Where a party is in attendance who is not a resident of the county, or where the defendant is in attendance under arrest, the adjournment not to exceed forty-eight hours, and the defendant, if under arrest, to continue in custody. Second-In other cases, not to exceed eight days, unless by consent of parties. If the trial be not adjourned, it must take place immediately upon the return of the summons.

6483 SEC. 960. [On application of party.] The trial may be adjourned upon the application of either party, without the consent of the other, for a period not exceeding thirty days, as follows; the party asking the adjournment must, if required by his adversary, prove by his own oath, or otherwise, that he cannot, for want of material testimony which he expects to procure, safely proceed to trial.

6484 SEC. 961. [Same-Further adjournments.] An adjournment may be had either at the return day, or at any subsequent time to which the cause may stand adjourned, on the application of either party, for a period longer than thirty days, but not to exceed ninety days from the time of the return of the summons, upon compliance with the provisions of the preceding section, and upon proof by the oath of the party, or otherwise, to the satisfaction of the justice, that such party cannot be ready for trial before the time to which he desires an adjournment for the want of material evidence, describing it, that the delay has not been made necessary by any act or negligence on his part since the action was commenced, and that he expects to procure the evidence at the time stated by him.

CHAPTER VI.-WITNESS.

6485 SEC. 962. [Subpoena-when issued.] Any justice may issue subpoenas to compel the attendance of witnesses to give evidence on any trial pending before himself, or for the purpose of taking depositions, or to perpetuate testimony.

6486 SEC. 963. [Same-Service.] A subpoena may be served by a constable or any other person, and shall be served by reading the same or stating the contents thereof to the witness, or by leaving a copy thereof at his usual place of residence.

6487 SEC. 964. [Fees.] When not served by a constable or sheriff, or some person deputed for that purpose by a justice, no fees shall be charged in the suit for serving it.

6488 SEC. 965. [Costs.] If any witness, having been subpoenaed, attend and be not examined by either party, the costs of such witness shall be paid by the party ordering the subpoena, unless the adverse party, by confessing the matter, or otherwise, render unnecessary the examination of such witness.

4689 SEC. 966. [Contempt of subpoena-Arrest, etc.] Whenever it shall appear to the satisfaction of a justice, by proof made before him, that any person has been duly served with a subpoena to appear and give testimony before him in any matter in which he has authority to require such witness to appear and testify, that his testimony is material, and that he refuses or neglects to attend as such witness in conformity with such subpoena, the justice shall issue a warrant for the arrest of the delinquent, for the purpose of compelling his attendance, and punishing his disobedience.

SEC. 960.

Nature of testimony need not be stated. 28 Neb., 90. Nor name, whereabouts, or what absent witness will testify to, or effort made to procure attendance. 29 Id., 586. SEC, 961. It should appear that the same facts cannot be proved by witnesses in jurisdiction of court. 27 Neb,, 494, Continuance over ninety days cannot be questioned by party asking it. 36 Id., 626. Does not apply to term cases in county court. 40 Id., 773.