CHAPTER 95.-THE LAWS OF NEBRASKA.

ARTICLE I.-REVISED STATUTES OF 1866.

5583 SECTION 1. This act shall be known as "The Revised Statutes of Nebraska," and is hereby declared to be the law of the territory of Nebraska, and shall take effect and be in force from and after the first day of July, in the year of of our Lord one thousand eight hundred and sixty-six. [R. S., 683. G. S., 1079.] 5584 SEC. 2. "An act to establish a code of civil procedure," approved November 1st, 1858, and an act supplemental thereto, approved November 4, 1858, "An act to adopt and establish a criminal code for the territory of Nebraska," approved 1858, all laws and acts amendatory of and supplemental to said code, and all acts and laws of a general nature relative to the civil and criminal laws and proceedings of this territory, passed prior to the eleventh session of the legislative assembly begun and held at Omaha on the first Thursday after the first Monday in January, 1866, and all acts and parts of acts conflicting with the provisions of this revision are hereby repealed Provided, The re-enactment, amendment, or repeal of any law, act, title, section, chapter, or provision of the civil or criminal code, or of any general law of this territory, shall in no wise affect any contract, right, claim, interest, title, action, or liability which may have accrued, or any order, judgment, decree, sale, recognizance, instrument, or proceeding made, entered, or had under any provision of the laws hereby re-enacted, amended, or repealed, nor shall such re-enactment, amendment or repeal in any wise affect any criminal prosecution heretofore commenced, or any fine, penalty, forfeiture, or punishment for crimes and misdemeanors committed before the taking effect of this revision, but such prosecution shall be carried on and continued in the manner now provided by law, and all fines, penalties, and forfeitures heretofore incurred, and crimes and misdemeanors committed, shall be prosecuted the same as if no re-enactment, amendment, or repeal had been made. [Id.]

5585 SEC. 3. Whereas, Certain discrepancies exist between the original rolls on file in the office of the secretary of the territory, and the published laws of the eleventh session of the legislative assembly of this territory; Be it further enacted, That whenever such discrepancies exist, the volume of laws published under the title of the Revised Statutes of the territory of Nebraska, in force July 1st, 1866, shall be taken and received as the laws of this territory, until afterwards amended or repealed. [1867, 12th Sess. Ter., § 2, 7.]

5586 SEC. 4. That the volume of laws published under the title of "The Revised Statutes of the territory of Nebraska," and the appendix thereto, shall be hereafter received in all courts of this territory, and for all other purposes as evidence of the laws passed at the eleventh session of the legislative assembly of this territory, anything in the original rolls on file in the secretary's office to the contrary notwithstanding. [Id., § 3.]

ARTICLE II.-COMPILED STATUTES 1881.

5587 SECTION 1. [Compilation.] The public acts now in force, including the Revised Statutes of 1866, and the public acts and laws passed since that revision, and which may be passed by the legislature at its present session, shall be com

CHAP. 95, ART. 1. Secs. 1, 2, R.8., 683, and secs. 2, 3 of " An act to amend the code of civil procedure, passed at the eleventh session of the legislative assembly of the territory of Nebraska and for other purposes." Laws, 12th Sess. Terr., 7.

ART. II. "An act to provide for the publication of a compilation of the statutea" Approved and took effect Feb. 26, 1881 Bee 12 Neb., 235. 17 Id., 140. 20 Id., 377. 83 Id., 812. 34 Id., 680, 52 Id.. 243.

piled, arranged, and put into chapters, with appropriate heads and titles, and with reference to decisions of the supreme court. [1881, § 1, chap. 79.]

5588 SEC. 2. [Compiler-Price.] The said statutes shall be compiled and published by Guy A. Brown, of Lancaster county, upon the condition that all expenses connected with the preparation and publication thereof shall be borne by him, and the sale price of each copy when published, shall not exceed five dollars; Provided further, That the said Guy A. Brown shall furnish to the state of Nebraska all copies of said statutes which may be required by the state, at a price not to exceed two dollars and fifty cents per copy; Provided further, That said statutes shall be equal in quality of paper and binding to the General Statutes of 1873, be set with type of the same size and contain at least one third more matter on a page, and be thoroughly indexed. Said statutes to be published on or before July 1st,

1881.

5589 SEC. 3. [Bond.] The said compiler shall give bond in the sum of five thousand dollars with at least three sureties conditioned for the faithful performance of his duties, and to carry into effect the provisions of this act, which bond shall be approved by the secretary of state and filed in his office, and thereupon the said secretary of state shall permit the said compiler, when the same are not in use by him, to take the original rolls of said laws for the purpose of making accurate copies thereof for said statutes, the same to be returned upon publication of said statutes, and whenever required by the secretary of state.

5590 SEC. 4. [Receivable in evidence.] The said statutes when published shall be accompanied by a certificate of the compiler that the same are true and accurate copies of the said original rolls, and thereupon the said statutes, and subsequent editions founded thereon, shall be competent evidence of the several acts and resolutions therein contained, in all the courts of this state, without further proof or authentication; Provided, That the compiler shall furnish copies of any subse quent editions required by the state at the same price as the original edition, to-wit; two dollars and fifty cents per copy. [Amended 1885, chap. 93.]

REVISION COMMISSION.

5590a SEC. 1. [Board.] That the Supreme Court shall name and select five (5) Judges of the District Court who shall constitute a Board for the revision of the Statutes of the state of Nebraska. [1901, chap. 79.]

5590b SEC. 2. [Duties.] Said Board of revision shall carefully and thor oughly revise all the entire Statutes of the state now in force, suggesting changes, modifications and repeals as in their judgment may seem best, and report the same to the Legislature meeting in 1903, "or to the present legislature, if there shall be a special session thereof called." [Id., § 2.]

5590c SEC. 3. [Clerks.] The clerical and stenographic work for said Board shall be done by the Stenographers or court reporters of such Judges. [Id., § 3.]

5590d SEC. 4. [Compensation.] Such Judges and their reporters shal receive no additional compensation for their services, but they shall be allowed and paid out of the State Treasury upon order, voucher and warrant for their actual and necessary disbursement for hotel and traveling expenses.

5590e SEC. 5. [Office-Supplies.] The secretary of state shall furnish for the use of said Board a convenient and suitable room in the Capitol Building for their use and shall also furnish all necessary supplies in the way of books, stationery, etc. [Id., § 5.]

SECS. 1-5. “An act to create a Board of the Judges of District Courts for the revision of the Statutes of the state of Nebraska, and to define their duties and fix their compensation." Laws, 1901, chap. 79. In effect Me'

30. 1901

5590f SEC. 6. [Nebraska Land Transfer Commission.] That the Supreme Court is hereby authorized to appoint a commission of three (3) persons, to be known as the Nebraska Land Transfer Commission. [1901, Ch. 80.]

5590g SEC. 7. [Duties.] It shall be the duty of this Commission to investigate our present system of transferring land titles; also to investigate systems that are at present in effect in other countries and are now being introduced in several states of our own country, and especially to investigate what is known as the Australian or Torrens system of registration of titles, and if it would be suitable to the laws and constitution of this state, and to draft a bill that is more simple, less expensive and giving a better security to title than our present law of transfer; this commission to report to the Supreme Court on or about January 1st, 1902. [Id., § 2.]

5590h SEC. 8. [Oath.] Each member of the said commission shall, after the passage and approval of this act, qualify by filing in the office of the Secretary of State an oath to faithfully perform his duty. [Id., § 3.]

5590i SEC. 9. [Compensation.] Each member of the said commission shall receive from the State as full compensation for his services the sum of five hundred dollars, five ($.05) cents per mile for distance necessarily traveled and all actual and necessary expenses, to be audited and paid as other bills against the state. [Id., § 4.]

5590j SEC. 10. [Supplies.] The Secretary of State shall allow said commission access to all public records and documents under such reasonable regulations as may be necessary, and shall furnish them with necessary stationery and office supplies. [Id., § 5.]

SECS. 6-10. "An act authorizing the Supreme Court to appoint a commission to investigate our present system of transferring land titles, and other systems, including the Torrens system of transferring land titles, and to draft a law to improve our present system of transfer; and to make an appropriation for the necessary expense." Laws, 1901, chap. 80. Took effect April 1, 1901.

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 exist ing 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 prescribed 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 hereditaments, 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. Provided, however, that there shall be no limitation to the time within which any county, city, town, village or other municipal corporation may begin an action for the recovery of the title or possession of any public road, street, alley or other public grounds or city or town lots. [Amended 1869. 67; 1899, chap. 79.]

4

SEC. 1. Object stated. 2 Neb., 187. Construction liberal. 14 Neb., 302. 56 Id., 810. General rules. 17 Neb., 204, 322. SEC. 2. Sec. 1 of "An act to amend the code of civil procedure by abolishing the distinction between actions at law and suits in equity." Laws, 1867, 71. Distinction between law and equity not abolished. 3 Neb., 115. id., 587. 56 Id., 596. Distinction stated. 6 Neb., 85. Fictitious issues 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 nonsult 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.,

775.

Contracts providing other times void. 54 Id., 121. Effect of amending petition. 54 Id.. 517. 59 Id., 100. Ordinarily third party may not plead defense of statute of limitations. Plummer v. Rohman, Dec. 14, 1960.

SEC. 6. Original section read "twenty-one years." Change in running period of statute applies to action subsequently brought. 4 Neb., 46. 20 Id., 853. As against right to redeem conveyance absolute, but in fact a mortgage, statute does not run until tender of money due, and refusal to reconvey. 1 Neb.. 344. Statute commences to run at once on breach of covenant against incumbrances. 7 Neb., 404. 10 Id., 150. Foreclosure of