CHAPTER 20.-COURTS-PROBATE [COUNTY].

2452 SECTION 1. [Courts.] There is hereby established, in each organized county in this state, a probate court which shall be held at the county seat by the probate judge of such county, and shall be a court of record. Such court shall be deemed to be always open, and any cause, matter, or proceeding may be proceeded with therein at any time after the giving of notice or service of process in the mode prescribed by law. And the proceedings and determinations of such court heretofore had or made in any cause, matter, or proceeding, at any time other than at a regular term of such court, as heretofore prescribed by law, shall be as valid and effectual, for all purposes, as if had or made at such regular term. [G. S., § 1, 263.]

2453 SEC. 2. [Jurisdiction.] County judges in their respective counties shall have and exercise the ordinary powers and jurisdiction of a justice of the peace, and shall in civil cases have concurrent jurisdiction with the district court, in all civil cases in any sum not exceeding one thousand dollars, exclusive of costs, and in actions of replevin where the appraised value of the property does not exceed that sum, and the provisions of the code of civil procedure, relative to justices of the peace, shall, where no specified provision is made by this subdivision, apply to the proceedings in all civil actions prosecuted before said county court; Provided, That county courts shall not have jurisdiction: I. In any action for malicious prosecution. II. In any action against officers for misconduct in office, except where like proceedings can be had before justices of the peace. III. In actions for slander and libel. IV. In actions upon contracts for the sale of real estate. V. In any matter wherein the title or boundaries of land may be in dispute, nor to order or decree the sale or partition of real estate. [Const., art. VI, § 16.] [Amended 1883, chap. XXXVIII. Amendment took effect June 1, 1883.]

2154 SEC. 3. [Original jurisdiction.] The courts of probate in their

CHAP. 20, SECS. 1-37.

"An act concerning the organization, forms, and jurisdiction of probate courts." G. S., 263. Took effect March 3, 1873. By Const., art. XVI, sec. 15, county courts are made the successors of probate courts. 9 Neb. 265.

SEC. 2. Jurisdiction generally. 5 Neb., 99. 9 Id., 265. Jurisdiction determined by amount claimed. 5 Neb., 100. [But see 11 Id.. 464, and 14 Id, 518, where it is said amount stated in ad damnum clause of writ gives jurisdi tion, even where pet tion states a different amunt | Presumptio that process was issued within jurisdiction. 15 Neb., 12. Have jurisdiction in foreible entry and detainer. 11 Neb, 319. Have jurisdiction in cases o lastardy. 24 Neb., 35. No jurisdiction of election contest held in city on question of voting aid to internal improvements. 13 Neb., 398. Prior to 1883, had no jurisdiction over $500, and a suit brought with summons indorsed for more than that amount, though judgment was within jurisdiction, held, properly dismissed. 14 Neb., 518. Act increasing jurisdiction of justices to $200 did not increase jurisdiction of county judge to same extent. 16 Neh.. 541. [This decision made under law as it existed prior to 1883, chap. XXXVIII, and amendments given in the text.] Have jurisdiction of actions to recover damages for assault and battery. 12 Neb.. 475. Have jurisdiction to revive dormant judgment. 18 Neb., 82. 19 Id., 677. 20 Id., 314. Have jurisdiction in action for money had and received, brought to recover back a deposit, or money paid upon an agreement for the purchase and sale of land. where defendant omits or refuses to perform his agreement to convey the same. 20 Neb., 50. Have no jurisdiction in action against officers for taking illegal fees. 19 Neb., 529. Have jurisdiction in complaints for misdemeanor. 19 Neb., 274. Have jurisdiction under sec. 31. chap. 6, to decide as to whether personal property is exempt from execution, and whether it should or should not be delivered to the assignee. 17 Neb., 466. May as sign widow's dower; and in order to oust it of such jurisdiction, right of applicant to such dower must be dis puted by presenting issue of fact which, if established by proof, would defeat claim of dower, and such issue must be one which county court by its organization is unable to try. 18 Neb., 103. May assign homestead on settlement of estate. Id., 106. Is a court of record while acting within that jurisdiction, which it possesses concurrently with district court. 15 Neb.. 11. May amerce officer failing to return execution. 11 Neb., 473. Cannot naturalize aliens. Clerk not authorized. 7 Neb., 471. Laws relative to courts of record apply to. 12 Neb.. 16) Appointment in absence of judge; presumption that it was made as provided by statute. 3 Neb., 343. New trial can only be granted where verdict was obtained by fraud, partiality, or undue means. And within four days after judgment. 6 Neb., 303. 12 Id., 479. A change of venue cannot be taken from county court to a justice of the peace. 10 Neb., 439. A judgment in a case wherein the court had jurisdiction, unappealed from, and where no exceptions were taken on the trial, and same does not appear affirmatively to be unsupported by the petition or bill of particulars, is conclusive. 10 Neb., 578. Practice same as in cases before justices; dismissal of action may be had on motion of plaintiff; payment of costs not a prerequisite. 6 Neb., 148, 303. Setting aside judgment of dismissal, and reinstating case: presumption that defendant had notice. 9 Neb., 276. 17 Id., 696. Amount cla med over $100, verdict less, or clum reduced to less by set-off, no e sts allowed. 5 Neb., 100. Aliter, where claim is $59. 9 Id.. 265. Cited 39 Id., 839. See notes t secs. 16, 18, art. VI. const, and 907 code. Amount in replevin. 51 Id., 252. Has jurisdiction breach of covenant against encumbrances. 57 Id., 155. Provisions as to proceedings not applicable to election contests. Jurisdiction in such cases. 59 Id., 128.

SEC. 3. An order allowing an account against an estate may be reviewed on error in the district court. 10 Neb., 333. Has original jurisdiction in probate of will; order conclusive unless reversed on error or appeal. 12 Neb., 343. 13 Id., 152. Probate of will defined; will not proved, no evidence of title. 13 Neb., 152. Jurisdiction of guardian's accounts exclusive. 17 Neb., 42. Judgment admitting will to probate, final and conclusive. 20 Neb., 265. Disqualification of judge by this section does not extend to mere ministerial acts.

diction over party wall agreement. 36 Id., 340.

17 Neb., 595. Juris

respective counties shall have exclusive jurisdiction of the probate of wills, the administration of estates of deceased persons, and the guardianship of minors, insane persons, and idiots; Provided, No judge of probate shall act in any case or matter where he is next of kin to the deceased, nor where he is legatee or devisee under a will, nor where he is named as executor or trustee in a will, or is one of the subscribing witnesses thereto, nor where he is related to any party in interest in any case before him, by consanguinity or affinity, or has such an interest therein as would exclude him from acting as a juror in such case or matter, nor where he has acted as attorney or counsel in any case or matter before him.

2455 SEC. 4. [Powers.] They shall have power: I. To hear and determine claims and set-offs in the matter of the estates of deceased persons. II. To hear and determine questions of application for, and to grant and issue letters of administration, testamentary, and of guardianship, and revoke the same. III. To take the probate of wills. IV. To cause to be taken, to receive, file, and record all inventories, sale, and appraisement bills of the estates of deceased persons. V. To require executors, administrators, and guardians to exhibit and settle their accounts, and account for the estates and property that have come into their possession as such. VI. To appoint commissioners to partition personal estate. VII. To authorize guardians to sell and convey or mortgage the personal estate of their wards, to provide for their wants, education, and support.

2456 SEC. 5. [Bonds of executor, etc.] If it shall appear to any such court, by the application, under oath, of any party interested in the bond of any executor, administrator, or guardian appointed by such court, that there is reasonable doubt as to the solvency or sufficiency of the securities upon any such bond, such court shall cause such executor, administrator, or guardian to be ordered to show cause why he shall not execute a new bond in the premises, with surety to be арproved by such court, as provided by law.

2457 SEC. 6. [Same.] If upon the hearing of any such matter, the court shall require a new bond with surites, and such executor, administrator, or guardian shall fail to comply with the order of the court, he shall be removed from his said trust, and his letters revoked, and another executor, administrator, or guardian, as the case may be, appointed in his place.

2458 SEC. 7. [Terms of court.] It shall be the duty of the probate judge, in each county, to hold a regular term of the probate court at his office at the county seat, commencing at nine o'clock, A. M., on the first Monday of each calendar month, for the trial of such civil actions brought before such court as are not cognizable before a justices of the peace. Such regular term shall be deemed to be open without any formal adjournment thereof until the third Monday of the same month, when all causes not then finally determined shall be continued by such court to the next regular term; but such courts shall be deemed to be always open for the filing of papers and issuance of process in civil actions, and for the purpose of taking and entering judgment by confession.

Not necessary to

SEC. 7. Term continues to and includes third Monday. 10 Neb., 529. Causes may be tried by agreement at any time. 9 Neb., 394. 17 Id., 696. Court may vacate or modify its own judgments, in term cases during the term at which they were rendered. 9 Neb., 269. 17 Id., 51. Trial by consent out of term. 9 Neb.. 278. "Judgment decreed in favor of plaintiff in sum of $...... principal, interest $......, judgment $......" Held, sufficient. 7 Neb., 479. Objection to judgment not made below will not be considered in supreme court. 14 Neb., 8. show that regular term had commenced and continued up to date of judgment. 3 Neb, 228. Error lies from judgment. 7 Neb., 127. Motion to require itemization of account too late after answer. 12 Neb.. 85. Sufficient if summons describe cause of action in general terms. 13 Neb., 35. If defendant fail to appear after overruling of motion to quash summons, no error to render judgment without showing a default. 12 Neb., 205. Amendment of petition in open court does not operate to extend time for answering. 8 Neb., 445. If amount claimed does not exceed $100 summons should issue as in cases before justice of peace. 12 Neb., 476. Summons could not prior to 1877 issue to another county. 10 Neb., 268. Judgment rendered in the absence of defendant may be set aside under 1001, code. 11 Neb., 239. Setting aside judgment under provisions of sec. 1001 of civil code; practice; notice to plaintiff of application. 19 Neb., 590. Judgment unappealed from, no exceptions taken, and not appearing affirmatively to be unsupported by petition, held, conclusive. 10 Neb., 278. Continuance of cause on legal holiday is a nullity; but statute continues caus s if after third Monday, 17 Neb., 700. Cited 37 Id., 880. SEC. 8. Erroneous return day, irregular, not void. 59 Neb., 561.

2459 SEC. 8. [Proceedings.] In all cases commenced in said courts wherein the sum exceeds the jurisdiction of a justice of the peace, it shall be the duty of the county judge to issue a summons, returnable on the first day of the next term of said court, if there be ten days intervening between the issuance of the summons and the first day of the term, and if not, then to be made returnable on the first day of the next term thereafter, which summons shall be directed and delivered to the sheriff or any constable of said county, and the sheriff or constable shall serve the same upon the defendant as in other civil cases, at least ten days before the return day thereof. When the summons has not been served ten days before the first day of the term, the cause shall stand continued until the next regular term of said court, and shall then stand for trial, without further notice to the defendant. [Amended 1883, chap. XXXVIII.]

2460 SEC. 9. [Actions in replevin.] In all actions in replevin, the summons shall be in like form, and be returnable within the like time as in similar actions before justices of the peace, but if, upon a return of the writ, it appears that the appraised value of the property taken thereon exceeds the jurisdiction of a jus tice of the peace, and does not exceed the jurisdiction of the county court, such ac tion shall stand continued, as of course, to the next regular term of said court, and shall then be disposed of as other causes during such term; but if it appears that the appraised value of the property in such action exceeds the jurisdiction of the county court, then such action, on the return of the writ, shall be forthwith certified to the district court. [Id.]

2461 SEC. 10. [Petition-Answer.] In all civil actions in the county court, where the amount claimed exceeds the jurisdiction of a justice of the peace, the plaintiff, his agent, or attorney shall, before the summons is issued therein, file in such court a petition, setting forth, in ordinary and concise language, his demands; and the defendant shall also, on or before the first day of the term at which the cause stands for trial, file in such court his answer containing any set-off or other defense he may have. Such petition shall be verified in like manner as a petition is required to be verified in the district court, and when so verified, no other or greater proof shall be required to entitle the plaintiff to judgment upon default than in actions in the district court. [Id.]

2462 SEC. 11. [Pleadings.] In actions before said court, where the amount claimed exceeds the jurisdiction of a justice of the peace, motions and demurrers shall be allowed, and the rules of practice concerning pleadings and processes in the district court shall be applicable, so far as may be, to pleadings in the county court. [Id.]

2463 SEC. 12. [Default.] If no answer is filed on or before the first day of the term, in any action to be tried during such term, the plaintiff may have the default of the defendant entered, and may proceed to judgment on any succeeding day during the term, upon proving his cause of action.

2464 SEC. 13. [Trial by jury.] Either party may demand a jury for the trial of any cause pending in the probate court, wherein the amount claimed exceeds one hundred dollars; but such demand must be made in writing and entered on the docket on or before the filing of the answer in such cause.

2465 SEC. 14. [Same.] Upon the filing of such demand for a jury, the probate judge shall cause a jury to be selected and summoned in the same manner as is provided for selecting jurors in civil actions before justices of the peace.

SEC. 9. Summons in replevin should be made returnable not more than twelve days from date. 9 Neb. 108. SEC 10 17 Neb., 49. Pt tion in action on note. 18 eb, 112.

SEC. 11. all of exception. 3 Neb, 342. 4 d.. 96. 7 Id., 127, 244. 9 Id., 39.

pleadings and process. 38 Id, 520. See Code, sec. 311.

14 Id., 240. Relates only to

SEC. 13. Jury trial must be demanded before answer filed. 12 Neb., 86. Judge has no authority to instruct jury. 13 Neb., 255.

2466 SEC. 15. [Calendar.] The probate judge shall, on the first day of each term, or as soon thereafter as may be, prepare [a] calander of the causes standing for trial at such term, placing the causes upon such calendar in the order in which the same are numbered on the docket, and setting the causes for trial, in such order, upon convenient days during such term; and the provisions of this code relative to the trial docket in the district court shall, so far as they are in their nature applicable, apply to such calendar.

2467 SEC. 16. [Arrest and attachment.] Orders for arrest and for attachments of property may issue in actions brought under this chapter, but when the demand in such action exceeds the jurisdiction of a justice of the peace, the proceedings upon such orders shall be the same, as near as may be, as in actions brought in the district court. The return day of such orders shall, when issued at the commencement of the action, be the same as that of the summons; when issued afterwards, they shall be made returnable forthwith. [Amended 1883, chap. XXXVIII.]

2468 SEC. 17. [Stay of execution.] Any person against whom a judgment is rendered, on all sums exceeding two hundred dollars, may have stay of execution in like manner as upon judgments rendered in the district court, and upon the same conditions; and upon all sums of two hundred dollars and under, the same as provided for in actions before justices of the peace. [Amended 1885, chap. 46.]

2469 SEC. 18. [Transcripts.] Any person having a judgment rendered by a probate court may cause a transcript thereof to be filed in the office of the clerk of the district court in any county of this state, and when said transcript is so filed, and entered upon the judgment record, such judgment shall be a lien on real estate in the county where the same is filed, and when the same is so filed and entered upon such judgment book, the clerk of such court may issue execution thereupon in like manner as execution is issued upon judgments rendered in the district court.

2470 SEC. 19. [Execution.] The probate judge shall issue execution on judgments rendered by said court, and the proceedings upon any such execution shall, in all cases, be as is provided by law governing executions issued upon the judgments of a justice of the peace.

2471 SEC. 20. [Signing and sealing process.] All writs, citations, and all process in civil actions, issuing out of any probate court, shall be under the seal thereof, and be signed by the probate judge.

2472 SEC. 21. [Process.] All process in civil actions in such court shall be directed to the sheriff or any constable of the county, and the same shall be served by the officer to whom it is directed, and return thereof made at the time therein directed; and for any neglect or omission to do so, he and his sureties may be proceeded against in like manner as in similar cases before justices of the peace.

OF THE PROCESSES OTHER THAN IN CIVIL ACTIONS.

2473 SEC. 22. [Service of process.] All writs, notices, orders, citations, and other process, except in proceedings for contempt, may be served in like manner as a summons in a civil action in the district court, and the service of the same by a copy thereof, left at the usual place of residence of the party to be served,

SEC. 15. Cited 17 Neb., 50. 42 Id., 214.

SEC. 16. Cited 20 Neb.. 506. 22 Id.. 87. Issuance of order of sale, even if erroneous, would be no reason why judgment should be reversed; proper practice would be to move county court for a return and vacation of the order of sale. 17 Neb., 696. Has no reference to proceedings in district court to review such orders. 38 Id., 520. SEC. 17. Stay of execution on judgment exceeding $100 is governed by sec. 481, civil code, and the requirements of that section are not answered by giving an undertaking signed by sureties alone. 7 Neb., 418. Duty of county judge upon demand to issue joint execution against the property of the judgment debtors and sureties in stay bond. 21 Neb., 322.

SEC. 18. See 5 Neb.. 47. 7 Neb., 165. Judgment made lien on real estate by filing transcript in office of clerk of district court. 18 Neb., 563. 19 Id., 687. Judgments of county court. 38 Id., 498.

SEC. 22. Cited 31 Neb., 817.

shall be deemed equivalent to personal service theof in cases where personal service is required by law; but to bring a party into contempt there must have been actual personal service of the process upon the disobedience of which the contempt is founded, and there must be actual personal service of all process in the proceedings for contempt. In cases where writs, notices, citations, or other process cannot be served as aforesaid in this state, the probate court may, in cases where it may be necessary, order the service thereof to be made by publication in some newspaper in this state in such manner as the court may direct, and thereupon the same proceedings may be had as in [if] such writs or other process had been served as aforesaid in this state. Nothing contained in this section shall limit or take away the power of the probate court or judge thereof to give notice or cause the same to be given by publication in the various cases provided by law.

2474 SEC. 23. [Service in other counties.] All writs and other process, except subpoenas, may be executed and served, as the case may require, in any county in the state; and if it be a county other than that of the residence of the probate judge, the same shall be directed to the sheriff of such other county.

2475 SEC. 24. [Duties of sheriffs.] It shall be the duty of the sheriffs of the several counties to execute or serve all writs and process issued by any probate court and to them directed, and to return the same; for any neglect or refusal so to do, they [may] be proceeded against in the probate court the same as for a neglect or refusal to execute or serve process issued out of the district court. SEC. 25. [Repealed 1877, 16.]

APPEALS TO DISTRICT COURT.

2476 SEC. 26. [Appeals, etc.] In civil actions brought under the provi sions of this chapter, either party may appeal from the judgment of the probate court, or prosecute a petition in error, in the same manner as provided by law in cases tried and determined by justices of the peace. The amount of the bond or undertaking taken shall be double the amount of the judgment and costs, and shall be approved by the probate judge.

EVIDENCE.

2477 SEC. 27. [Depositions, how taken.] Depositions may be taken to be used in evidence in any cause, matter, or proceeding pending in any probate court, in the like manner and upon like notice as in actions in the district court. Depositions so taken must be addressed and transmited to the judge of the court in which the cause, matter, or proceeding is pending.

MISCELLANEOUS PROVISIONS.

2478 SEC. 28. [Continuance of causes.] When for any cause the probate judge fails to attend at the commencement of any regular term, or at the time when any cause is assigned for trial, or at the time to which any cause may be continued, this parties shall not be obliged to wait more than one hour, and if he does not attend within the hour, the parties in attendance shall be required to attend at nine o'clock, A. M., of the following day, and if such judge shall not attend at that time, the cause shall stand continued until the first day of the next regular term. This section shall apply only to causes not cognizable before justices of the

peace.

SEC. 23. Is this applicable to justices' courts? 27 Neb., 577.
SEC. 24. Cited 11 Neb., 472.
SEC. 26.

Unless the cause is tried by a jury a bill of exceptions is of no avail in the district court upon a petition in error. 3 Neb., 341. 4 Neb., 96. See 14 Id., 210. Must be tried on same issues. 12 Id., 136. 17 Id., 171. 31 Id., 788. Amount of damages may be increased. 32 Id., 391. Cited Id., 230. Laws relating to appeals liberally construed. 37 Id., 381. On reversal of judgment district court may retain cause for trial. constitutional. Frovisions mandatory. 52 Id., 144.

50 Id., 320. Section