SEC. 114. [Same-Exceptions.]—The verification mentioned in the last section shall not be required to the answer of a guardian defending for an infant or person - of unsound mind, or a person imprisoned; nor in any case where the admission of the truth of a fact stated in the pleading might subject the party to a criminal or penal prosecution.

SEC. 115. [Same-Several parties.]-If there be several persons united in interest and pleading together, the affidavit may be made by any one of such parties. SEC. 116. [Same-Contents.]-The affidavit shall be sufficient if it state that the affiant believes the facts stated in the pleading to be true.

SEC. 117. [Same-Non-resident.]-In all cases where the party pleading is a non-resident of the county in which the action is brought, or if he shall be absent from the county where the pleading is filed, an affidavit made before filing the pleading, stating the substance of the facts afterwards inserted in the pleading, shall be a sufficient verification. Such affidavit shall be filed with the pleading intended to be verified thereby.

SEC. 118. [Same-Before whom.]-The affidavit verifying pleadings may be made before any notary public or other officer authorized to administer oaths and must be signed by the party making the same; and the officer before whom the same was taken shall certify that it was sworn to or affirmed before him and signed in his presence. The certificate of such officer signed officially by him, shall be evidence that the affidavit was duly made, that the name of the officer was written by himself, and that he was such officer, and nothing herein shall be construed to prohibit an attorney at law, who is a notary public from swearing a client to any pleading or other paper or affidavit in any proceeding in any of the courts of this state. [Amended 1887, chap. 93. Took effect July 1, 1887.]

SEC. 119. [Same-Amount claimed.]-The verification of a pleading does not apply to the amount claimed, except in actions founded on contracts, express or implied, for the payment of money only.

SEC. 120. [Same-By agent-Attorney.]-When the affidavit is made by the agent or attorney, it must set forth the reason why it is not made by the party himself. It can be made by the agent or attorney only: First-When the facts are within the personal knowledge of the agent or attorney. Second-When the plaintiff is an infant, or of unsound mind, or imprisoned. Third-When the pleading to be verified is founded upon a written instrument for the payment of money only, and such instrument is in the possession of the agent or attorney. Fourth-When the party is not a resident of, or is absent from the county. Fifth-When the party is a corporation, in which case it may be made by the attorney, or any officer or agent upon whom a summons could be legally served. [Amended 1875, 34. Took effect Feb. 24, 1875.]

SEC. 121. [Pleadings liberally construed.] In the construction of any pleading, for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties.

SEC. 122-123. [Repealed. Gen. Stat. 713.]

SEC. 124. [Copies of instrument.]-If the action, counter-claim, or set-off be founded on an account, or on a note, bill, or other written instrument, as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading, except in actions founded upon notes issued to circulate as money. If not so attached and filed, the reason thereof must be shown in the pleading.

SEC. 125. [Matter stricken out.]-If redundant, scandalous, or irrelevant matter be inserted in any pleading, it may be stricken out on motion of the party prejudiced thereby. And when the allegations of a pleading are so indefinite and uncertain

SEC. 118. Notary public who is clerk of attorney may administer oath to verify pleading prepared by such attorney. 24 Neb. 822. SEC. 120. Amendment consists in the addition of the fifth subdivision. This section applies to all pleadings whether the relief is sought at law or in equity. 3 Neb. 116.

SEC. 121. See 2 Neb. 267. 3 Neb. 311. 17 Id. 257. 93 Id. 323,

SEC. 124.

Cited 10 Neb. 527.

SEC. 125.

Cited 2 Neb. 267. 12 Neb. 85.

that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.

SEC. 126. [Counter-claim-Set-off-Withdrawn.]-The court at any time before the final submission of the cause, on motion of the defendant, may allow a counter claim or set-off, set up in the answer, to be withdrawn, and the same may become the subject of another action. On motion of either party, to be made at the time such counter-claim or set-off is withdrawn, an action on the same shall be docketed and proceeded in as in like cases after process served; and the court shall direct the time and manner of pleading therein. If an action be not so docketed, it may afterwards be commenced in the ordinary way.

SEC. 127. [Judgment, how plead.]-In pleading a judgment, or other determination of a court or officer of special jurisdiction, it shall be sufficient to state that such judgment or determination was duly given or made. If such allegation be controverted, the party pleading must establish, on the trial, the facts conferring jurisdiction.

SEC. 128. [Conditions precedent.]—In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish on the trial the facts showing such performance.

SEC. 129. [Action on negotiable instrument.]—In an action, counterclaim, or set-off, founded upon an account, promissory note, bill of exchange, or other instrument, for the unconditional payment of money only, it shall be sufficient for the party to give a copy of the account or instrument, with all credits and endorsements thereon, and to state that there is due to him on such account or instrument, from the adverse party, a specified sum, which he claims with interest. When others than the makers of a promissory note, or the acceptors of a bill of exchange, are parties in the action, it shall be necessary to state also the kind of liability of the several parties, and the facts, as they may be, which fix their liability.

SEC. 130. [Private statute.]-In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title, and the day of its passage, and the court shall thereupon take judicial notice thereof.

SEC. 131. [Libel-Slander.]-In an action for libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be denied, the plaintiff must prove on the trial the facts, showing that the defamatory matter was published or spoken of him.

SEC. 132. [Same-Defense-Truth.]-In the actions mentioned in the last section, the defendant may allege the truth of the matter charged as defamatory, and may prove the same, and any mitigating circumstances to reduce the amount of damages, or he may prove either.

SEC. 133. [Real property-Description.]—In an action for the recovery of real property, it shall be described with sufficient certainty to enable an officer holding an execution to identify it.

SEC. 134. [Allegations taken as true.]-Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer, not controverted by the reply, shall, for the purpose of the action, be taken as true; but the allegation of new matter in the reply, shall be deemed controverted by the adverse party, as upon a direct denial or avoidance. Allegations of value, or of amount of damage, shall not be considered as true by failure to controvert them. [Amended to take effect Sept. 1, 1873. G. S. 545.]

SEC. 135. [Material allegation, defined.]-A material allegation in a

SEC. 128. Cited 25 Neb. 509.

SEC. 129. Cited 10 Neb. 269. 11 Id. 237, 456. form. 15 Neb. 120.

Mode is permissive merely. Facts may be stated in different necessary to attach copy of note. 47 N. W. R. 848.

SEC. 134. Cited 2 Neb. 287. 4 Id. 523. 8 Id. 78. 9 Id. 321. 11 Id. 397. 25 Id. 509. Admissions in reply not valid in case stated. 14 Neb. 246. Allegation in petition not denied by answer taken as true. 5 Neb. 215. New matter denied by reply burden of proof is on defendant. 6 Neb. 219. If answer sets up payment by a sale of property to plaintiff and replication so admits, but alleves payment of purchase price to third parties at request of defendant, the burden of proof rests on plaintiff. 10 Neb. 6.

pleading is one essential to the claim or defense, which could not be stricken from the pleading without leaving it insufficient.

SEC. 136. [Judicial notice.]-Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in the pleading.

SEC. 137. [Original pleading lost.]-If an original pleading be lost, or withheld by any person, the court may allow a copy thereof to be substituted.

MISTAKES IN PLEADINGS, AND AMENDMENTS.

SEC. 138. [Variance-When not material.]-No variance between the allegation in a pleading and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as may be just.

SEC. 139. [Same-Amendment.]--Whenever the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs.

SEC. 140. [Same-Failure of proof.]-When, however, the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof.

SEC. 141. [Petition amended before answer.]-The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceeding; but notice of such amendment shall be served upon the defendant, or his attorney, and the defendant shall have the same time to answer or demur thereto as to the original petition.

SEC. 142. [Amendment after demurrer-Notice.]-At any time within ten days after a demurrer is filed, the adverse party may amend, of course, on payment of costs since filing the defective pleading. Notice of filing an amended pleading shall be forthwith served upon the other party, who shall have the same time thereafter to answer, or reply thereto, as to an original pleading.

SEC. 143. [Demurer overruled-Answer-Reply.]-Upon a demurrer being overruled, the party who demurred may answer or reply, if the court be satisfied that he has a meritorious claim or defense, and did not demur for delay.

SEC. 144. [Amendments in furtherance of justice.]-The court may, either before or after judgment, in furtherance of justice, and on such terms as may be

SEC. 137. Cited 11 Neb, 471.

SEC. 138. Cited 12 Neb. 99.

SEC. 142. This section refers to amendments out of term and without leave of court, but not to amendments made in open court by leave of court. 8 Neb. 445.

SEC. 143. The defendant may be required to plead instanter. 9 Neb. 310.

SEC. 144. Section applies solely to pleadings, etc., 14 Neb. 429. "Presumption that amendment made was in furtherance of justice.' 16 Neb. 611. Defective verification may be amended. 2 Neb. 136. So may a defective appeal bond. 3 Neb. 121. Amendment to summons by correction of a mistake in name of plaintiff relates hack to the time of service. 4 Neb. 177. Amendments discretionary with court. 3 Neb. 95. 16 Neb. 676. If pleading susceptible of amendment, such amendment should be permitted. 22 Neb. 691. If amendment deprives party of substantial right, supreme court will grant relief; application to amend should be made before cause dismissed. 7 Neb. 53, 319. Amendment cannot insert new cause of action. 5 Neb. 319. Objection that amendment inserted new cause of action waived, not being made in trial court. 10 Neb. 416. To conform to facts proved, allowed. 7 Neb. 58. To conform to facts proved, not allowed. 7 Neb. 315. To conform to facts proved, allowed where testimony is admitted without objection. 8 Neb. 318. 16 Neb. 611. 19 Neb. 43. Where party fails to maintain action on note, petition may be amended after testimony is in so as to declare for money had or received. 14 Neb. 261. In action against partnership, when on trial it appears that transaction was with one member in his individual capacity, amendment allowed. 6 Neb. 495. Of petition in open court does not operate as extension of time to answer. 8 Neb. 445. A pleading filed in district court, but entitled "in county court," is amendable. 19 Neb. 148, See also 4 Neb. 381. 20 Neb, 324. May be made after evidence is introduced and before case is submitted to jury. 20 Neb. 548. In supreme court on appeal amendment of petition allowed so as to correct mistake. 14 Neb. 490. Amendment not allowed in supreme court on original motion, 18 Neb. 113. But see 18 Neb. 652. Made during trial will be presumed to be made in furtherance of justice. 16 Neb. 611. When, on trial, objection is made that petition does not state cause of action, and defect complained of can be cured by amendment, court should permit amendment instanter. 17 Neb. 572. 19 Id. 189. Amendment after judgment to contain a correct description of property, Held, Proper. 18 Neb. 320. Petition may be amended when proposed amendment does not change plaintiff's claim, although the form of action may be changed. Petition in ejectment may be amended to be a petition to redeem. 19 Neb. 34. Where

proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. And whenever any proceeding taken by a party fails to conform, in any respect to the provisions of this code, the court may permit the same to be made conformable thereto, by amendment. [Amended 1875, 35. Took effect Feb. 4, 1875.]

SEC. 145. [Immaterial errors disregarded.]-The court in every stage of an action, must disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

SEC. 146. [Demurrer sustained-Amendment.]-If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by way of amendment, with or without costs, as the court in its discretion shall direct.

SEC. 147. [Continuance upon amendment.]-When either party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit, or otherwise, that the adverse party could not be ready for trial in consequence thereof, a continuance may be granted to some day in term, or to another term of the court.

SEC. 148. [Unknown defendants-Designations.]-When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name and description, and when his true name is discovered, the pleading or proceeding may be amended accordingly. The plaintiff in such case must state, in the verification of his petition, that he could not discover the true name, and the summnons must contain the words "real name unknown," and a copy thereof must be served personally upon the defendant.

SEC. 149. [Supplemental pleadings.]-Either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer, or reply, alleging facts material to the case, occurring after the former petition, answer, or reply.

SEC. 150. [Actions consolidated.]— Whenever two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no such cause be shown, the said several actions shall be consolidated. SEC. 151. [Same-Order.]-The order for consolidation may be made by the court or by a judge thereof in vacation.

amended pleading is necessary, court should permit it to be filed at any time before or after trial; aliter, where such amended pleading is not necessary to the admission of material testimony. 20 Neb. 89. In action for injuries to person, petition set up a certain cause of action; amended petition filled by leave of court; Held, That the cause of action-the shooting, being the identical charge in both cases, amendment was properly allowed. 25 Neb. 338. Where testimony has been introduced tending to show an additional liability from defendant, petition may be amended. 25 Neb. 390. Insertion of words a corporation" after name of plaintiff, Held, Proper as an amendment and that such an amendment did not bring a new and different party plaintiff into the case. 25 Neb. 703.

SEC. 145. Cited 13 Neb. 32. 21 Neb. 610.

SEC. 147. Continuance discretionary with trial court. 1 Neb. 119. 5 Id. 190. 11 Id. 394. 6 Id. 337. 14 Id. 273. But if abuse of discretion be shown new trial will be granted. 14 Neb. 273. Discretion of court, not interfered with, unless abused. 22 Neb. 362. Affidavit must state evidence expected to be given. 1 Neb. 118. 11 Id. 393. Affidavit made on information and belief, insufficient. 5 Neb. 97. Affidavit based on information derived from others, facts and reasons should be stated, 14 Neb. 206. Affidavit should be specific and give facts with such particularity that indictment for perjury would lie in case of its being false. 14 Neb. 273. Application for, examined and Held, Insufficient. 16 Neb. 417. 16 Neb. 481. Under facts stated, Held, That district court erred in not granting. 22 Neb. 358. Where affidavit shows absence of necessary document, it should affirmatively appear that diligence had been used to procure it, and that it is probable that it can be had, in case continuance is granted. 22 Neb. 362. Counter affidavits not proper. 6 Neb. 337. 14 Id. 505. 17 Id. 357. On amendment of pleadings; party desiring continuance must apply to court. 8 Neb. 455. If general, operates to continue cause to next regular term. 14 Neb. 505. Where cause is continued to a day on which the court is prohibited from transacting business, as Sunday, or a legal holiday, the continuance will extend to the first day thereafter on which it can legally transact business. 23 Neb. 547. Adjournment of court to Thanksgiving day, Held, A nullity. 14 Neb. 546. Where material testimony is suppressed, without which party in whose favor it was taken cannot safely proceed to trial, court will grant a continuance. 19 Neb. 348. Where an injury is alleged in the petition to have ocenrred in December, and the testimony showed that it occurred in the previous September, it is not error to overrule a motion for a continuance, it not appearing that the change of time affected the defense. 15 Neb. 659. Facts in motion for, taken as true; where sufficient facts are stated continuance should be granted. 14 Neb. 503. Affidavit which fails to show that personal attendance or testimony of absent witnesses will probably be obtained if time be granted, Held, Insufficient. 14 Neb. 544. Verbal agreement of, in county court, sustained. 23 Neb. 487. SEC. 149. Cited 21 Neb. 313.

TITLE VIII.-PROVISIONAL REMEDIES.

CHAPTER I.—ARREST AND BAIL. [REPEALED LAWS 1887, chap. 99.]

CHAPTER II.—REPLEVIN OF PROPERTY.

SEC. 181. [Delivery of property-When claimed.]—The plaintiff in an action to recover the possession of specific personal property, may, at the commencement of the suit, or any time before answer, claim the immediate delivery of such property as provided in this chapter. [R. S. 421. G. S. 552.]

SEC. 182. [Order-Affidavit.]-An order for the delivery of personal property to the plaintiff, shall be made by the clerk of the court in which the action is brought, when there shall be filed in his office an affidavit of the plaintiff, his agent, or attorney showing: First-A description of the property claimed. Second-That the plaintiff is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the same. Third-That the property is wrongfully detained by the defendant. Fourth-That it was not taken in execution on any order or judgment against said plaintiff; or for the payment of any fine, tax, or amercement assessed against him, or by virtue of an order of delivery issued under this chapter, or any other mesne or final process issued against him; Provided, That such affidavit may omit the first and last clause of this subdivision and in lieu thereof, show that the property was taken in execution on a judgment or order, other than an order of delivery in replevin, and that the same is exempt from such execution or attachment under the laws of this state; And provided further, That the provisions of this act shall extend to and apply as well to proceedings in replevin had before justices of the peace. [Amended 1877, 9. Took effect June 1, 1877.]

SEC. 183. [Order-Contents.]-The order for the delivery of the property to the plaintiff shall be addressed and delivered to the sheriff. It shall state the names of the parties, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order on a day to be named therein.

SEC. 184. [Same-Returnable.]-The return day for the order of delivery, when issued at the commencement of the suit, shall be the same as that of the summons, when issued afterwards, it shall be twenty days after it issued.

SEC. 185. [Same-Execution.]-The sheriff shall execute the order by taking the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detention of the property, or leave such copy at his usual place of residence.

SEC. 186. [Bond.]—The sheriff, or other officer, shall not deliver to the plaintiff, his agent or attorney, the property so taken, until there has been executed, by one or more sufficient sureties of the plaintiff, a written undertaking to the defendent in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him, and return the property to the defendant, in case judgment for a return of such property is rendered against him. The undertaking shall be returned with the order. [Amended to take effect Sept. 1, 1873. G. S. 553.]

CHAP. I. Repealed by act entitled "An act to abolish arrest and imprisonment in civil actions, for debt, and to repeal chapter I, of title VIII, of the code of civil procedure." Took effect July 1, 1887. See 23 Neb. 169. SEC. 181. Gist of action. 6 Neb. 272. 15 Id. 27. 20 Id. 298. Title of plaintiff. 2 Neb. 191. 7 Id. 27. 10 Id. 273. 14 Id. 100. 17 Id. 489, 701. 18 Id. 494. Demand. 1 Neb. 209. 2 Id. 253. 8 Id. 114. 18 Id. 194. 23 Id. 194. Replevin cannot be maintained against officer for property levied upon and claimed to be exempt under sec. 521 until after inventory filed and appraisement made. 21 Neb. 544. General denial; evidence. 9 Neb. 486. 21 Id. 76. 22 Id 217. 25 Id. 188. 23 Id. 147. No action for undelivered goods sold. 28 Id. 271.

SEC. 182. Affidavit. 7 Neb. 51. 13 Id. 205. 17 Id. 487. 20 Id. 90, 98. 21 Id. 157. Petition. 6 Neb. 272. 7 Id. 317. 14 Id. 48. 16 Id. 99. 21 Id. 157. Answer. 5 Neb. 38, 102. 7 Id. 294. 9 Id. 486. 15 Id. 27. 17 Id. 670. 18 Id. 191. 20 Id. 296. Intervention. 23 Neb. 142. Joinder of parties. 21 Neb. 702. Sworn to positively. 29 Id. -. N. W. R. 622.

45

SEC. 185. Seizure of property on Sunday not proper. 16 Neb. 651. Failure to serve writ not jurisdictional. 6 Neb. 472. 8 Id. 113. Defects cannot be objected to by special appearance. Id.

SEC. 186. Undertaking omitting italicized words good as far as it goes. 8 Neb. 468. Cited 24 Neb. 578.