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COURTS SUPREME AND DISTRICT.
without the payment of any fee. It shall be the duty of the reporter to deliver such long-hand copy of the proceedings therein, within forty days from the final adjournment of the term at which the judgment is rendered, to the party demanding it.
SEC. 49 a. [Deputies.]-The stenographic reporters within and for each of the judicial districts of this state may severally, each with the consent of the judge of the district in which he acts, appoint as deputy a person well skilled in the art of stenography, and capable of reporting the oral proceedings had in court verbatim. [1883, chap. LXXVII.]
SEC. 49 b. [Oath-Pay.]—A deputy reporter so appointed shall take the oath required to be taken by judicial officers, and may perform the duties of the reporter as provided in the "Compiled Statutes of Nebraska, chapter 19, Courts," and the reporters of the court shall pay for the services of such deputy.
SEC. 50. [Repealed chap. 13, R. S. 48; Laws 1877, 116, 205, and all acts inconsistent with the provisions of this act, except Laws 1875, 76.]
SEC. 51. [Provided for act to take effect March 1, 1879.]
INSTRUCTIONS TO JURIES.
SEC. 52. [To be in writing.]-It shall be the duty of the judges of the several district courts, in all cases, both civil and criminal, to reduce their charge or instructions. to the jury to writing, before giving the same to the jury, unless the so giving of the same is waived by the counsel in the case in open court, and so entered in the record of said case; and either party may request instructions to the jury on points of law, which shall be given or refused by the court. [1875, § 1, 76.] All instructions asked shall be in writing.
SEC. 53. [Modifications.]—If the court refuse a written instruction as demanded, but give the same with a modification, which the court may do, such modification shall not be by interlineation or erasure, but shall be well defined and shall follow some such characterizing words as dicate that the same was refused as demanded. [Id. § 2.] changed thus," which words shall themselves in
SEC. 54. [Instructions read over.]-The court must read over all the instructions which it intends to give, and none others, to the jury, and must announce them as given, and shall announce as refused, without reading to the jury, all those which are refused, and must write the words " margin of each instruction. [Id. § 3.] "given," or "refused," as the case may be, on the
SEC. 55. [To be numbered.]-If the giving or refusal be excepted to, the same may be without any stated reason therefor, and all instructions demanded, as well as all instructions given to the jury by the court on its own motion, must be plainly and legibly written in consecutively numbered paragraphs, and filed by the clerk before being read to the jury by the court; and such instructions shall be preserved as part of the record of the cause in which they were given. [Id. 4.]
SEC. 56. [Oral explanation.]-No oral explanation of any instruction au
SEC. 49 a-b. "An act to permit the appointment of deputy stenographic reporters in the several judicial districts of the state of Nebraska." Took effect June 1, 1883.
SECS 52-56. "An act to amend section 58, chapter fourteen, General Statutes." Laws 1875, 76. Took effect April 1, 1875. See sec. 50. See also note to sec. 283. civil code.
SEC. 52. Instructions delivered orally and reduced to writing and inserted in the bill of exceptions, but not ced by the juge, were on motion stricken out of the bill. 23 Neb. 602. Should be based on pleadings and evidence. 46 N. W. R. 1019.
SEC. 54. When instructions are requested which are substantially the same as those already given, it is not error to refuse them. And under this section it is not error for the court to fail to give the reason for such refusal. Sep. 44. Instructions not a part of bill of exceptions. 11 Neb. 231. Given on court's own motion. 27 Neb. 158. If given must be read. 27 Neb. 380.
SEC. 55. The right given by this section will be regarded as waived when the charge is not excepted to, or when exception is taken to a particular clause only. 4 Neb. 288. 18 Neb. 560. But in case of felony if it appear that the charge had a tendency to prejudice the accused under any state of facts, a new trial will be granted, although no exception is taken. 4 Neb. 530. 9 Neb. 302.
SEC. 56. Although an oral charge be given, the supreme court will not consider it "error in the trial of the case" unless the attention of the court below has been called to it in the motion for a new trial. 4 Neb. 43. 13 Id. 488. And a neglect to mark instructions as provided in sec. 54 must also be excepted to at the time and attention of court called thereto in motion for new trial, or the error will be waived. 10 Neb. 443. 11 Id. 457. Instruc
tions not considered by supreme court under a general assignment of "errors of law occurring at the trial." 15 Neb. 129. Instructions may be oral if written ones are waived by both sides. 16 Neb. 414. The oral explanation prohibited by this section refers to explanations by the court not reduced to writing; counsel in summing up to jury may read and comment upon instructions given. 25 Neb. 590.
thorized by the preceding sections shall, in any case, be allowed, and any instruction or charge, or any portion of a charge or instructions given to the jury by the court and not reduced to writing as aforesaid, or a neglect or refusal on the part of the court to perform any duty enjoined by the preceding sections, shall be error in the trial of the case, and sufficient cause for the reversal of the judgment rendered therein. [Id. § 5.]
JURISDICTION AT CHAMBERS.
SEC. 57. [Jurisdiction at chambers.]-That any judge of the district court may sit at chambers, at any time and place within his judicial district, and while so sitting shall have the power-1. To grant, dissolve, or modify temporary injunctions. 2. To discharge attachments. 3. To hear and determine application for writ of mandamus, and applications for writ of habeas corpus. 4. To discharge such other duties or to exercise such other powers as may be conferred upon a judge in contradistinction to a court. 5. To receive a plea of "guilty" from any person charged with a felony and passing sentence thereon, upon reasonable notice to the prosecuting attorney. [1881, § 1, chap. 46.]
SEC. 57. "An act to give the several judges of the judicial districts of Nebraska certain powers when sitting in chambers anywhere within their respective judicial districts." Approved March 2. Took effect June 1, 1881. Jurisdiction given to grant license to guardian to sell real estate of ward. 13 Neb. 290. 14 Id. 856.
CHAPTER 20.-COURTS-PROBATE [COUNTY]..
SECTION 1. [Court.]-That 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.]
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.]
SEC. 3. [Original jurisdiction.]-The courts of probate in their respective counties shall have exclusive jurisdiction of the probate of wills, the administration of CHAP. 20, SECS. 1-37. "An act concerning the organization, forms, and jurisdiction of probate courts." 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. 500. [But see 11 Id. 464 and 14 Id. 518, where it is said amount stated in ad damnum clause of writ gives jurisdiction, even where petition states a different amount.] Presumption that process was issued within jurisdiction. 15 Neb. 12. Have jurisdiction in forcible entry and detainer. 11 Neb. 151, 319. Have jurisdiction in cases of bastardy. 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 Neb. 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. 34, 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 assign widow's dower; and in order to oust it of such jurisdiction right of applicant to such dower, must be disputed 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. 17 Neb. 103. May assign homestead on settlement of estate. Id. 106. Is a court of record, while acting within that jurisdiction which it possesses conurrently 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. 160. 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 frand, 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 pre-requisite. 6 Neb. 148, 303. Setting aside judgment of dismissal, and reinstating case; presumption that defendant had notice. 9 Neb. 276. 17 Id. 696. Amount claimed over $100, verdict less, or claim reduced to less by set-off, no costs allowed. 5 Neb. 100. Aliter, where claim is $50. 9 Id. 265. SEC. 3. An order allowing an account against an estate may be reviewed on error in the district court. 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.. 263. Disqualification of judge by this section does not extend to mere ministerial acts. 17 Neb. 525.
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.
SEC. 4. [Powers.]-They shall have power: I. To hear and determine claims and set-offs in the matter of 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 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 approved by such court, as provided by law.
SEC. 6. [Same.]-If, upon the hearing of any such matter, the court shall require a new bond with sureties, 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.
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 justice of the peace. Such regular term shall be deemed to be open without any formal adjourn ment 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.
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 there
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. Not necessary to show that regular term had commenced and continued up to date of judgment. 3 Neb. 228. Error lies from judgment. 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 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 causes if after third Monday. 17 Neb. 700.
after, 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.]
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 justice of the peace, and does not exceed the jurisdiction of the county court, such action 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.]
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.] 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.]
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.
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.
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. 15. [Calendar.]-The probate judge shall, on the first day of each term, or as soon thereafter as may be, prepare [a] calendar 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.
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
SEC. 9. Summons in replevin should be made returnable not more than twelve days from date. 9 Neb. 108. SEC. 10. 17 Neb. 49. Petition in action on note. 18 Neb. 112.
SEC. 11. Bill of exception. 3 Neb. 242. 4 Id. 96. 7 Id. 127, 244. 9 Id. 39. 14 Id. 240.
SEC. 13. Jury trial must be demanded before answer filed. 12 Neb. 86. Judge has no authority to instruct fury. 13 Neb. 254.
SEC. 15. Cited 17 Neb. 50.
SEC. 16. Cited 20 Neb. 506. 22 Id. 87. Issuance of order of sale, even if erroneous, would be no reason why judg. ment should be reversed: proper practice would be to move county court for a return and vacation of the order of sale. 17 Neb. 696.