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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.]
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.]
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.
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.
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.
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.
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, shall be deemed equivalent to personal service thereof 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.
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.
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
SEC. 17. Stay of execution on judgments exceeding $100 are governed by sec. 481, civil code, and the requirements of that section is 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 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. SEC. 23. Is this applicable to justices' courts? 27 Neb. 577. SEC. 24. Cited 11 Neb. 472.
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.]
SEC. 26. [Appeals, etc.]—In civil actions brought under the provisions 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.
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 the like notice as in actions in the district court. Depositions so taken must be addressed and transmitted to the judge of the court in which the cause, matter, or proceeding is pending.
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, the 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. 29. [Appearances.]—In all actions brought in the probate court in pursuance of the provisions of this chapter, parties, jurors, and witnesses shall be obliged to appear at the time when the summons is returnable, or at which the cause is assigned for trial, or to which it may be continued.
SEC. 30. [Adjournments.]-The provisions of this code relative to adjournment of causes before justices of the peace shall apply to civil actions in the probate court not cognizable before such justices, so far only as the causes for adjournment and the conditions to be imposed thereon are concerned, but the time for which the cause may be adjourned shall be regulated by the probate judge in the exercise of a reasonable discretion; Provided, That such action cannot be adjourned over more than three regular terms of said court, upon the application of either party, without consent of the other.
SEC. 31. [Docket.]—The probate judge shall keep a docket in which all of his proceedings in civil actions shall be entered in like manner, as near as may be, as the proceedings before justices of the peace in civil actions; and the provisions of this code relating to justices' docket shall, as near as may be, apply to the docket of the probate judge.
SEC. 32. [Probate books.]-The probate books shall consist of a record, entry, estate, and fee book, which shall be kept as follows: I. The record book shall contain a full record of all wills, testaments, and codicils, and the probate thereof, all letters testamentary, of administration and guardianship, and all bonds of executors, guardians, and administrators. The original papers shall be filed and preserved in the office. II. There shall be entered in the estate book all inventories, appraisements, sale bills, and other exhibits and reports received by the court, relative to the settlement or disposition of estates, showing the amount of all such estates, as shown by such instruments. III. The entry book shall contain a fair statement of all the matters, controversies, and suits that may have arisen for decision and adjudication before said
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. 240.
court, with the names of the parties, dates of each entry, and the judgment or opinion of the court, and all orders thereof, and a full record of all determinations of the district or supreme court upon appeal or petition in error in such matters, controversies, and suits. IV. The fee book shall contain an exact account of all fees allowed and paid in each case, showing the names of the persons receiving the same, and for what such fees were paid.
SEC. 33. [Index.]—An index shall be attached to each book required to be kept by the probate judge, in which shall be inserted [in] alphabetical order the names of the parties or persons in which [whose] names the entries in such books are made.
SEC. 34. [Records.]—Every record made in any probate court, excepting original orders, judgments, and decrees thereof, shall have attached thereto a certificate signed by the judge of such court, showing the date of such record and the county in which the same is made, and it shall not be necessary to call such judge or his successor in office to prove such record so certified. And in any cause, matter, or proceeding in which the probate court or probate judge has jurisdiction, and is required to make a record not provided for in this chapter, such record shall be certified in the same way and with like effect as aforesaid.
SEC. 35. [Disqualification of judge.]—When any probate judge shall be disqualified from acting in any cause or matter before him, or is temporarily absent from the county, the county commissioners may appoint a competent and disinterested person to act in place of such judge, in such case or other matter, during such absence or disqualification, who shall give bonds in the same manner and possess the same powers, and be subject to the duties, restrictions, and liabilities therein as are prescribed by law respecting probate judges.
SEC. 36. [Repealed by 1881, chap. 14.]
SEC. 37. [Bonds.]—All bonds required by law to be taken in or by order of the probate court shall be for such sum with such sureties as the judge shall prescribe, except as otherwise provided by law, and such bonds shall be for the security and benefit of all persons interested, and shall be taken to the state of Nebraska, except where they are required to be taken to the adverse party.
SEC. 38. [Repealed Chap. 1, Title, Imperfect and lost records. XXV, R. S. 534; Laws 1870, 7.]
SEC. 39. [Proving records.]-That in all cases where lands have been sold by order of the probate court in any county in the territory or state of Nebraska, on application of the guardian of any minor child, or children, or executor, or administrator, and it shall appear in any action in any court held within this state, relating to the title to such land, that the record or any part of the record of such sale is imperfect or deficient, or that such record or any part thereof, or any paper or papers, notice, affidavit, document, instrument, or any proceeding whatsoever, from the filing of the petition for license to sell until the execution of the deed to the purchaser, has been lost or destroyed by fire or otherwise, or cannot be found, the contents of such record, paper, notice, affidavit, document, instrument, or other proceeding may be proved in the same manner as in case of other lost instruments or papers by secondary evidence, and when so proved, they shall have the same effect as if proven by the production of the original record, paper, notice, affidavit, document, instrument, or other proceedings, or by a duly certified copy thereof. [G. S. § 1, 271.]
SEC. 40. [Same-Bonds of guardians, etc.]-When in such action it shall appear that the record, or any bond, paper, instrument, or other proceeding connected with the appointments of the guardian, executor, or administrator, by whom
SEC. 35. In the absence of a record to the contrary it will be presumed that one acting as probate judge was appointed under the provisions of this section. 3 Neb. 343. Person appointed by county board to act in place of county judge during his disqualification will continue to act until the whole cause or matter is disposed of. Neb. 226. See note to sec. 3 and 17 Neb. 523.
SECS. 39-41. "An act prescribing the method of proving records of probate courts relative to the sale of lands and appointment of guardians, executors, and administrators, in certain cases, and perpetuating the evidence thereof. G. S. 271 Statute applies to all cases where records are lost or destroyed. 18 Neb. 152.
such sale was made, has been lost or destroyed by fire or otherwise, or cannot be found, the contents thereof may be proven in the manner and with the effect prescribed in section one of this act, as to the matters therein provided for. [Id. § 2.]
SEC. 41. [Perpetuating testimony.]-The testimony of any witness, as to any matter or thing mentioned in this act, may be perpetuated and shall be received ⚫ and admitted, in any action aforesaid, and with the effect prescribed in this act in the same manner as prescribed by law in other cases. [Id. § 3.]
SEC. 42. [Appeals in probate matter.]-In all matters of probate jurisdiction, appeals shall be allowed from any final order, judgment, or decree of the county court to the district court by any person against whom any such order, judgment, or decree may be made, or who may be affected thereby. [1881, §1, 227.]
SEC. 43. [When taken.]-All appeals shall be taken within thirty days after the decision complained of is made. [Id. § 2.]
SEC. 44. [Bond-Cost-Attorney's fee.]-Every party so appealing shall give bond in such sum as the court shall direct, with two or more good and sufficient sureties, to be approved by the court, conditioned that the appellant will prosecute such appeal to effect without unnecessary delay, and pay all debts, damages, and costs that may be adjudged against him. The bond shall be filed within thirty days from the rendition of such decision. But an executor, administrator, guardian, or guardian ad litem shall not be required to enter into bond in order to enable him to an appeal. If it shall appear to the court that such appeal was taken vexatiously or for delay, the court shall adjudge that the appellant shall pay the costs thereof, including an attorney's fee to the adverse party, the court to fix the amount thereof, and said bond shall be liable therefor in cases where it is required. [Id. § 3.]
SEC. 45. [Effect of bond.]-After such bond has been filed, the appeal shall be granted, but shall not be a supersedeas in any other matter relating to the administration of the estate, except that from which the appeal is specially taken. [Id. § 4.]
SEC. 46. [Transcript.]-When such appeal is taken, the county court shall, on payment of his fees therefor, transmit to the clerk of the district court, within ten days after perfecting such appeal, a certified transcript of the record and proceedings relative to the matter appealed from. [Id. § 5.]
SEC. 47. [Proceedings in district court.]-Upon the filing of such transcript in the district court, that court shall be possessed of the action, and shall proceed to hear, try, and determine the same, in like manner as upon appeals, brought upon the judgment of the same court in civil actions. [Id. § 6.]
SEC. 48. [Judgment.]-The final decision and judgment in matters so appealed shall be certified to the county court, and proceedings shall be had thereon necessary to carry the final decision and judgment into execution. [Id. § 7.]
SECS. 42-48. "An act providing for an appeal from the decision of the county court in certain matters." Approved Feb. 28. Took effect June 1, 1881. Order admitting will to probate conclusive, unless appeal is taken to district court as provided by this act. 12 Neb. 345. Bond with one surety is not void, and is sufficient unless objected to on that ground. Bond may be amended in appellate court. 13 Neb. 9. Notice of appeal not required. 16 Neb. 294. 25 Id. 269. Presumption that bond approved by judge conforms to orders of court; appeal not dismissed though bond be defective; on appeal district court may hear evidence and determine validity of claim. 21 Neb. 236. Repeals by implication conflicting provisions of secs. 234-238, chap. 23. 25 Neb. 267. 27 Id. 859.
CHAPTER 20 A.-DAIRYMEN'S ASSOCIATION.
SECTION 1. [Legalization.]-That the regularly organized and incorporated society known as the Nebraska Dairymen's Association, whose articles of incorporation are recorded in the office of secretary of state, be and the same is hereby legalized as a state institution. [1889, chap. 83.]
SEC. 2. [Annual convention.]-The Nebraska Dairymen's Association shall hold a convention annually on the third Tuesday in December, at such place in the state as the board of managers may select, for the purpose of gathering statistics and diffusing practical knowledge on subjects pertaining to the dairy interests of the state, by addresses, papers, discussions, and such other means as the board of managers may direct.
SEC. 3. [Duty of secretary.]-The secretary of said association shall preserve all papers read, and take a stenographic report of all addresses and discussions at said annual convention, and shall make a report of the same to the governor, together with a full report of all business transacted, including an itemized statement of all expenditures of money, and shall publish in pamphlet form not less than two thousand (2,000) copies of said report, which shall be distributed according to the laws governing the distribution of the reports of the state board of agriculture.
SEC. 4. [Appropriation.]-The sum of one thousand dollars is hereby annually appropriated, out of any moneys in the state treasury not otherwise appropriated, for the use and benefit of said association, and the state auditor is hereby authorized to draw his warrant for the same upon presentation of proper vouchers therefor, certified to by the president and secretary of said association, said amount to be used only for defraying the expenses incurred in holding conventions and in publishing and distributing reports and such other purposes as in the discretion of the board of managers shall best subserve the dairy interests of the state.
[Embezzlement-Penalty.]-If any officer or member of said association shall convert any of the moneys hereby appropriated to his own use, or suffer the same to be lost or expended in any other way or manner or for any other purpose than is designated by law, such officer or member shall be deemed guilty of embezzlement, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than one nor more than three years.
CHAP. 208. "An act legalizing the Nebraska Dairymen's Association and to define certain duties of said as80dation and to make an annual appropriation therefor, and fixing a penalty for the misappropriation of any of the money thereby granted." Took effect July 1, 1889. Laws 1889, chap. 83.