The Compiled Statutes of the State of Nebraska

withholding thereof. Sixth-Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same. Seventh--Claims against a trustee by virtue of a contract, or by operation of law. [Amended 1867, 71.] SEC. 88. [Same-Parties-Place of trial.]-The causes of action so united, must affect all the parties to the action, and not require different places of trial.

TITLE VII.—PLEADINGS IN CIVIL ACTIONS.

PLEADINGS IN GENERAL.

SEC. 89. [Pleadings defined.]-The pleadings are the written statements, by the parties, of the facts constituting their respective claims and defenses.

SEC. 90. [Sufficiency, how determined.]-The rules of pleading heretofore existing in civil actions, are abolished, and hereafter the forms of pleading in civil actions in courts of record, and the rules by which their sufficiency may be determined, are those prescribed by this code.

SEC. 91. [Pleadings allowed.]—The only pleadings allowed are: FirstThe petition by the plaintiff. Second-The answer or demurrer by the defendant. Third -The demurrer, or reply by the plaintiff. Fourth-The demurrer to the reply, by the defendant.

THE PETITION.

SEC. 92. [Contents.]- The petition must contain: First - The name of the court and county in which the action is brought, and the names of the parties, plaintiff and defendant. Second-A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. Third-A demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated; and if interest thereon be claimed the time from which interest is to be computed shall also be stated.

SEC. 89. General rules. 16 Neb. 678. Construed liberally. 14 Id. 489. 16 Id. 441. 46 N W. R. 710. But failure to state material facts will not be aided by construction. 12 Neb. 279. Language if doubtful construed against pleader. 7 Neb. 318. 13 Id. 294. Pleadings in all cases should be made to conform to the provisions of this title. 24 Nah 490.

SEC. 90. Pleadings should present specific issue. 5 Neb. 37. Sufficiency tested by motion not demurrer. 3 Neb. 86. 1 Id. 203. 2 Id. 267. 4 Id. 263. 7 Id. 240. 12 Id. 584. 16 Id. 441. True test of sufficiency stated. 12 Neb. 596. Substance, not form, considered. 12 Neb. 265.

SEC. 92. If facts stated do not constitute cause of action, filing an answer does waive defects. 13 Neb. 257. 17 Neb. 515. Allegations vague and indefinite; remedy is by motion to make certain, etc.; yet if such petition show liability of defendant, demurrer should be overruled. 16 Neb. 443. Allegations, though informal and indefinitely stated, Held, Good after decree. 20 Neb. 530. Pleadings should be liberally construed. 16 Neb. 443. Plaintiff's interest must affirmatively appear. 8 Neb. 468. Recovery limited to causes of action stated in petition. 16 Neb. 70. Petition failing to state cause of action will not support judgment. 15 Neb. 112. 17 Id. 515. Conclusion of law, containing fact constituting cause of action, will not be stricken out as irrelevant; remedy by motion to make definite. 7 Neb. 464. Objections to petition containing conclusion of law not available after issue joined. 12 Neb. 410. Defects not subject of demurrer. 4 Neb. 263. 12 Id. 584. Defect which appears on face of petition should be taken advantage of by demurrer. 21 Neb. 215. Defective; may be amended. 22 Neb. 691. Defective; cured if averment supplied by answer. 6 Neb. 272. Defective; not amendable after verdict. 7 Neb. 319. (But see Humphries v. Spafford. 14 Neb. 488.) Failure to sign and verify no ground for dismissal of action. 6 Neb. 435. Action on written instrument; copy should be attached. 8 Neb. 214. On appeal must present same issues as in lower court. 20 Neb. 636. While plaintiff in appellate court must prosecute same cause of action as in court of original jurisdiction, yet so long as identity of cause of action is maintained he may plead and prove any fact to show its validity. 21 Neb. 360. Omission to state material facts; presumption is that they do not exist. 4 Neb. 307. 7 Id. 493. 12 Id. 242. 16 Id. 443. 17 Id. 516, 670. Where change of cause of action does not appear on face of petition, it may be set up by answer. 20 Neb. 636. Where conditions of contract sued on have been altered by consent of parties, contract, as modified, should be set out in petition, and not in reply. 19 Neb. 43. Failure to attach copy of written instrument sued on cannot be reached by demurrer, but by motion. 10 Neb.527. Copy of instrument sued on not required if original lost. 10 Neb. 527. Statement of terms of contract attached, in body of petition, not irrelevant. 18 Neb. 686. Mistakes in copying instruments sued on not fatal. 12 Neb. 99. Title of cause a part of; unnecessary to repeat names in body of petition. 11 Neb. 238. 13 Neb. 411. Where action is brought by parties by initials of their Christian names instead of the names, the remedy of adverse party is by motion to require full Christian names to be set out, and unless such objection is made it will be waived. 22 Neb. 494. Inconsistent counts; framing with double aspect allowable. 4 Neb. 394. 17 Id. 298. That does not allege assignment of claims, not in plaintiff's name, and no assignment proved, Held, Insufficient. 15 Neb. 112. 17 Id. 515. Supplemental petition filed after proof, and without notice to defendant, Held, proper. 23 Neb. 798. An additional cause of action which, under sec. 87, could have been united with original cause of action, may be added to and included in petition by amendment. 21 Neb. 169. Should consist of statement of facts constituting cause of action, but not of collateral evidence by which such facts are to be established; certain letters embodied in petition stricken out on defendant's motion. 23 Neb. 624. In case stated, Held, That plaintiff having shown no suit by his original petition, could not aid the same by supplemental petition. 21 Neb. 313. Objection to petition made for the first time after judgment will be upheld, if by any reasonable construction it is found sufficient. 18 Neb. 500. Objection to admission of evidence on the ground that petition does not state a cause of action may be taken at any time during the trial. 7 Neb. 317. The practice of objecting on the trial to the insufficiency of the petition is not to be encouraged, and if the defect complained of can be cured by amendment, the court should permit an amendment to be made instanter, and let trial proceed; the want of material averment, where objection

SEC. 93. [Causes of action separately stated.] - Where the petition contains more than one cause of action, each shall be separately stated and numbered. SEC. 94. [Demurrer - Grounds of.] — The defendant may demur to the petition only when it appears on its face: Either-First-That the court has no jurisdiction of the person of the defendant, or the subject of the action. Second-That the plaintiff has not legal capacity to sue. Third-That there is another action pending between the same parties for the same cause. Fourth-That there is a defect of parties, plaintiff or defendant. Fifth-That several causes of action are improperly joined. Sixth-That the petition does not state facts sufficient to constitute a cause of action.

SEC. 95. [Same-Distinctly stated.]-The demurrer shall specify distinctly the grounds of objection to the petition. Unless it do so, it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action. SEC. 96. [Waiver-Jurisdiction-No cause of action.]—When any of the defects enumerated in section ninety-four do not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.

is made, is not cured by the verdict. 17 Neb. 572. Where objection is made on trial that petition does not state facts sufficient to constitute a cause of action, court should, if possible, sustain petition, or permit an amendment thereto to be made instanter. 19 Neb. 189. Revocation of authority of administratrix to sue must be specially pleaded. 17 Neb. 574. Motion to strike from files only proper in cases where there is defect in matters of form required by the statute. 24 Neb. 382. Objections to verification must be made before objections to matter in the petition itself. 24 Neb. 382. Affidavit signed in name of principals, "per agent," properly sworn to by agent, Held, Sufficient. 24 Neb. 382. Where second and third counts in petition are in conflict with the first, the proper motion is to strike out the inconsistent matter, or require the plaintiff to elect upon which cause of action he will proceed. 24 Neb. 314. In cases of doubt resort may be had to prayer of petition to determine the character of the action. 24 Neb. 314. Petition setting forth in first count cause of action to remove cloud from plaintiff's title, and in second count facts to show the plaintiff's right to an action of ejectment, Held, Not bad by reason of misjoinder. 24 Neb. 314. On county warrants. 1 Neb. 383. Action to recover damages by location of railroad on public road. 15 Neb. 129. Goods sold and delivered, 11 Neb. 237, 387. 17 Id. 105, 608. In a petition for goods, wares, and merchandise sold and delivered, the items in stating the account in the following words: "To insurance, $6. To balance on oats, check, $6.30," without explanation, Held, Not sufficient to constitute a cause of action. 17 Neb. 608. A petition which alleges that the defendant is indebted to the plaintiff for a specific sum then due and payable, for goods, wares, and merchandise sold and delivered by the plaintiff to the defendant, states a cause of action, although subject to a motion to make definite and certain. 17 Neb. 105. In action against constable and sureties on official bond, Held. Sufficient after verdict. 22 Neb. 421. In action on official bonds. 16 Neb. 363. Stating cause of action on contract cutting wheat, effect of word "as" stated. 9 Neb. 80. On altered note: amendment setting up original cause of action proper. 9 Neb. 5. On promissory note. 12 Neb. 277, 320. 18 Id. 112. On sheriff's bond. 8 Neb. 348. In action against sheriff for unlawful imprisonment, Held, Sufficient. 22 Neb. 691. Against school district for money "paid, laid out, and expended." 12 Neb. 242. Redemption from mortgage sale; plaintiff must state he was not defendant in foreclosure suit. 4 Neb. 100. Under form given by statute; sufficient if it follow form. 4 Neb. 507. Contract with conditions precedent; performance must be averred or facts stated showing a waiver. 5 Neb. 76. Rescission of contract for fraud. 6 Neb. 135. Fraud; averment that claim "was un just and allowed through fraudulent and undue means" insufficient. 6 Neb. 201. Action against partnership. 1 Neb. 288, 291. 10 Id. 263. In action quia timet. 20 Neb. 413. In case stated, Held, To state cause of action, and though primarily framed for the purpose of a judgment, quia timet, Held, Sufficient to sustain a decree of foreclosure. 17 Neb. 298. Purchase price of property; must allege that debt is due. 10 Neb. 269. Where action is founded on promise or duty, non-performance must be alleged. 10 Neb. 269. Against clerk for neglect of entering transcript. 10 Neb. 528. Action on undertaking in attachment; petition should allege it was "wrongfully" sued out. 5 Neb. 470. Action to recover penalty under sections 5197 and 5198, Rev. Stat. of United States; petition should allege that the act was "knowingly done." 24 Neb. 824. In action on undertaking in replevin should contain allegation referred to in sec. 196 of code. 25 Neb. 277. Liability of county under sec. 71, G. S. 924; Petition should set out particular act done or omitted and officer doing or omitting it. 14 Neb. 279. To recover on insurance policy. 18 Neb. 499. In action of ejectment. 18 Neb. 534. For alleged malpractice, examined and held to state a cause of action. 19 Neb. 535. On appeal boud; setting out copy of bond, copy of final judgment rendered against appellant, and of the officer's return upon an execution thereon, Held, Sufficient. 20 Neb. 48. To recover damages on account of sale of liquor to plaintiff, Held, Sufficient. 20 Neb. 557. In nature of creditor's bill examined, and found insufficient. 21 Neb. 678. For foreclosure of mechanic's lien, Held, Sufficient. 25 Neb. 90. In case stated, Held, To state a cause of action against the maker and endorser of promissory note. 25 Neb. 129. Injunction against judgment on ground of fraud must state facts constituting grounds for relief. 25 Neb. 606. In action on insurance policy; not necessary to allege that arbitration had been had or award made under provisions of the policy. 25 Neb. 508. Exhibits to petition. 30 Id., 529.

SEC. 93. Petition setting forth several causes of action; if defendant insist, should be separately stated and numbered. 24 Neb. 823.

SEC. 94. Statute of limitation may be interposed by demurrer. 3 Neb. 87. 5 Id. 464. 6 Id. 292. 9 Id. 232. Considered general, when. 3 Neb. 52. Exception waived by answering over. 2 Neb. 308. 3 Id. 223. 10 Id. 188. 15 Id. 400. [But see 13 Neb. 275.] Demurrer admits facts. 3 Neb. 421. 11 Neb. 422. But not inferences or conclusions. 4 Neb. 137. Decision confined to pleading against which demurrer is directed. 5 Neb. 502. 12 Id. 320. And to objections stated in demurrer. 6 Neb. 84. Joint demurrer will be overruled if it state a cause of action against any of those joining in it. 9 Neb. 513. 10 Id. 173. 11 Id. 194. And see 15 Id. 424. Failure to attach copy of bond sued on is not ground of. 10 Neb. 527. Lies only to statement of causes of action, not prayer for relief. 11 Id. 194. For defects of parties defendant, lies only where petition shows want of them. 11 Neb. 396. Misjoinder of plaintiffs not ground for demurrer. 19 Neb. 724. To render demurrer effective one at least of causes must be substantially stated. 19 Neb. 741. For misjoinder of causes of action lies only where joinder is forbidden. 11 Id. 397. Judgment must be against party whose pleading was first defective in substance. 1 Neb. 424. Party who stands on demurrer and brings sase up, is concluded thereby. 8 Neb. 502. A defect which appears on face of petition should be taken advantage of by demurrer. 21 Neb., 215. Exception waived by answering over. 27 Id., 67.

SEC. 88. [Same-Parties-Place of trial.]-The causes of action so united, must affect all the parties to the action, and not require different places of trial. TITLE VII-PLEADINGS IN CIVIL ACTIONS.

PLEADINGS IN GENERAL.

SEC. 89. [Pleadings defined.]—The pleadings are the written statements, by the parties, of the facts constituting their respective claims and defenses.

SEC. 91. [Pleadings allowed.]-The only pleadings allowed are: FirstThe petition by the plaintiff. Second-The answer or demurrer by the defendant. Third -The demurrer, or reply by the plaintiff. Fourth-The demurrer to the reply, by the defendant.

THE PETITION.

SEC. 92. [Contents.]-The petition must contain: First-The name of the court and county in which the action is brought, and the names of the parties, plaintiff and defendant. Second-A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. Third-A demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated; and if interest thereon be claimed the time from which interest is to be computed shall also be stated.

SEC. 92. Iffacts stated do not constitute cause of action, filing an answer does waive defects. 13 Neb. 257, 17 Neb. 515. Allegations vague and indefinite; remedy is by motion to make certain, etc.; yet if such petition show liability of defendant, demurrer should be overruled. 16 Neb. 443. Allegations, though informal and indefinitely stated, Held, Good after decree. 20 Neb. 530. Pleadings should be liberally construed. 16 Neb. 443. Plaintiff's interest must affirmatively appear. 8 Neb. 468. Recovery limited to causes of action stated in petition. 16 Neb. 70. Petition failing to state cause of action will not support judgment. 15 Neb. 112. 17 Id. 515. Conclusion of law, containing fact constituting cause of action, will not be stricken out as irrelevant; remedy by motion to make definite. 7 Neb. 464. Objections to petition containing conclusion of law not available after issue joined. 12 Neb. 410. Defects not subject of demurrer. 4 Neb. 263. 12 Id. 584. Defect which appears on face of petition should be taken advantage of by demurrer. 21 Neb. 215. Defective; may be amended. 22 Neb. 691. Defective; cured if averment supplied by answer. 6 Neb. 272. Defective; not amendable after verdict. 7 Neb. 319. (But see Humphries v. Spafford. 14 Neb. 488.) Failure to sign and verify no ground for dismissal of action. 6 Neb. 435. Action on written instrument; copy should be attached. 8 Neb. 214. On appeal must present same issues as in lower court. 20 Neb. 636. While plaintiff in appellate court must prosecute same cause of action as in court of original jurisdiction, yet so long as identity of cause of action is maintained he may plead and prove any fact to show its validity. 21 Neb. 360. Omission to state material facts; presumption is that they do not exist. 4 Neb. 307. 7 Id. 493. 12 Id. 242. 16 Id. 443. 17 Id. 516, 670. Where change of cause of action does not appear on face of petition, it may be set up by answer. 20 Neb. 636. Where conditions of contract sued on have been altered by consent of parties, contract, as modified, should be set out in petition, and not in reply. 19 Neb. 43. Failure to attach copy of written instrument sued on cannot be reached by demurrer, but by motion. 10 Neb.527. Copy of instrument sued on not required if original lost. 10 Neb. 527. Statement of terms of contract attached, in body of petition, not irrelevant. 18 Neb. 686. Mistakes in copying instruments sued on not fatal. 12 Neb. 99. Title of cause a part of; unnecessary to repeat names in body of petition. 11 Neb. 238. 13 Neb. 411. Where action is brought by parties by initials of their Christian names instead of the names, the remedy of adverse party is by motion to require full Christian names to be set out, and unless such objection is made it will be waived. 2 Neb. 494. Inconsistent counts; framing with double aspect allowable. 4 Neb. 394. 17 Id. 298. That does not allege assignment of claims, not in plaintiff's name, and no assignment proved, Held, Insufficient. 15 Neb. 112. 17 Id. 515. Supplemental petition filed after proof, and without notice to defendant. Held, proper. 23 Neb. 798. An additional cause of action which, under sec. 87, could have been united with original cause of action, may be added to and included in petition by amendment. 21 Neb. 169. Should consist of statement of facts constituting cause of action, but not of collateral evidence by which such facts are to be established; certain letters embodied in petition stricken out on defendant's motion. 23 Neb. 624. In case stated, Held, That plaintiff having shown no suit by his original petition, could not aid the same by supplemental petition. 21 Neb. 313. Objection to petition made for the first time after judgment will be upheld, if by any reasonable construction it is found sufficient. 18 Neb. 500. Objection to admission of evidence on the ground that petition does not state a cause of action may be taken at any time during the trial. 7 Neb. 317. The practice of objecting on the trial to the insufficiency of the petition is not to be encouraged, and if the defect complained of can be cured by amendment. the court should permit an amendment to be made instanter, and let trial proceed; the want of material averment, where objection

SEC. 93. [Causes of action separately stated.]-Where the petition contains more than one cause of action, each shall be separately stated and numbered.

SEC. 94. [Demurrer - Grounds of.]—The defendant may demur to the petition only when it appears on its face: Either-First-That the court has no jurisdiction of the person of the defendant, or the subject of the action. Second-That the plaintiff has not legal capacity to sue. Third-That there is another action pending between the same parties for the same cause. Fourth-That there is a defect of parties, plaintiff or defendant. Fifth-That several causes of action are improperly joined. Sixth-That the petition does not state facts sufficient to constitute a cause of action.

SEC. 95. [Same-Distinctly stated.]-The demurrer shall specify distinctly the grounds of objection to the petition. Unless it do so, it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action. SEC. 96. [Waiver-Jurisdiction-No cause of action.]-When any of the defects enumerated in section ninety-four do not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.

is made, is not cured by the verdict. 17 Neb. 572. Where objection is made on trial that petition does not state facts sufficient to constitute a cause of action, court should, if possible, sustain petition, or permit an amendment thereto to be made instanter, 19 Neb. 189. Revocation of authority of administratrix to sue must be specially pleaded. 17 Neb. 574. Motion to strike from files only proper in cases where there is defect in matters of form required by the statute. 24 Neb. 382. Objections to verification must be made before objections to matter in the petition itself. 24 Neb. 382. Affidavit signed in name of principals, "per agent," properly sworn to by agent, Held, Sufficient. 24 Neb. 382. Where second and third counts in petition are in conflict with the first, the proper motion is to strike out the inconsistent matter, or require the plaintiff to elect upon which cause of action he will proceed. 24 Neb. 314. In cases of doubt resort may be had to prayer of petition to determine the character of the action. 24 Neb. 314. Petition setting forth in first count cause of action to remove cloud from plaintiff's title, and in second count facts to show the plaintiff's right to an action of ejectment, Held, Not bad by reason of misjoinder. 24 Neb. 314. On county warrants. 1 Neb. 383. Action to recover damages by location of railroad on public road. 15 Neb. 129. Goods sold and delivered, 11 Neb. 237, 387. 17 Id. 105, 608. In a petition for goods, wares, and merchandise sold and delivered, the items in stating the account in the following words: To insurance, $6. To balance on oats, check, $6.30," without explanation, Held, Not sufficient to constitute a cause of action. 17 Neb. 608. A petition which alleges that the defendant is indebted to the plaintiff for a specific sum then due and payable, for goods, wares, and merchandise sold and delivered by the plaintiff to the defendant, states a cause of action, although subject to a motion to make definite and certain. 17 Neb. 105. In action against constable and sureties on official bond, Held. Sufficient after verdict. 22 Neb. 421. In action on official bonds. 16 Neb. 363. Stating cause of action on contract cutting wheat, effect of word "as" stated. 9 Neb. 80. On altered note; amendment setting up original cause of action proper. 9 Neb. 5. On promissory note. 12 Neb. 277, 320. 18 Id. 112. On sheriff's bond. 8 Neb. 348. In action against sheriff for unlawful imprisonment, Held, Sufficient. 22 Neb. 691. Against school district for money "paid, laid out, and expended." 12 Neb. 242. Redemption from mortgage sale; plaintiff must state he was not defendant in foreclosure suit. 4 Neb. 100. Under form given by statute; sufficient if it follow form. 4 Neb. 507. Contract with conditions precedent; performance must be averred or facts stated showing a waiver. 5 Neb. 76. Rescission of contract for fraud. 6 Neb. 135. Fraud; averment that claim "was unjust and allowed through fraudulent and undue means" insufficient. 6 Neb. 201. Action against partnership. 1 Neb. 288, 291. 10 Id. 263. In action quia timet. 20 Neb. 413. In case stated, Held, To state cause of action, and though primarily framed for the purpose of a judgment, quia timet, Held, Sufficient to sustain a decree of foreclosure. 17 Neb. 298. Purchase price of property; must allege that debt is due. 10 Neb. 269. Where action is founded on promise or duty, non-performance must be alleged. 10 Neb. 269. Against clerk for neglect of entering transcript. 10 Neb. 528. Action on undertaking in attachment; petition should allege it was "wrongfully" sued out. 5 Neb. 470. Action to recover penalty under sections 5197 and 5198, Rev. Stat. of United States; petition should allege that the act was "knowingly done." 24 Neb. 824. In action on undertaking in replevin should contain allegation referred to in sec. 196 of code. 25 Neb. 277. Liability of county under sec. 71, G. S. 924; Petition should set out particular act done or omitted and officer doing or omitting it. 14 Neb. 279. To recover on insurance policy. 18 Neb. 499. In action of ejectment. 18 Neb. 534. For alleged malpractice, examined and held to state a cause of action. 19 Neb. 535. On appeal boud; setting out copy of bond, copy of final judgment rendered against appellant, and of the officer's return upon an execution thereon, Held, Sufficient. 20 Neb. 48. To recover damages on account of sale of liquor to plaintiff, Heid, Sufficient. 20 Neb. 557. In nature of creditor's bill examined, and found insufficient. 21 Neb. 678. For foreclosure of mechanic's lien, Held, Sufficient. 25 Neb. 90. In case stated, Held, To state a cause of action against the maker and endorser of promissory note. 25 Neb. 129. Injunction against judgment on ground of fraud must state facts constituting grounds for relief 25 Neb. 606. In action on insurance policy; not necessary to allege that arbitration had been had or award made under provisions of the policy. 25 Neb. 508. Exhibits to petition. 30 Id., 529.

SEC. 93. Petition setting forth several causes of action; if defendant insist, should be separately stated and aumbered. 24 Neb. 823. SEC. 94. Statute of limitation may be interposed by demurrer. 3 Neb. 87. 5 Id. 464. 6 Id. 292. 9 Id. 232. Considered general, when. 3 Neb. 52. Exception waived by answering over. 2 Neb. 308. 3 Id. 223. 10 Id. 188. 15 Id. 400. [But see 13 Neb. 275.] Demurrer admits facts. 3 Neb. 421. 11 Neb. 422. But not inferences or conclusions. 4 Neb. 137. Decision confined to pleading against which demurrer is directed. 5 Neb. 502. 12 Id. 320. And to objections stated in demurrer. 6 Neb. 84. Joint demurrer will be overruled if it state a cause of action against any of those joining in it. 9 Neb. 513. 10 Id. 173. 11 Id. 194. And see 15 Id. 424. Failure to attach copy of bond sued on is not ground of. 10 Neb. 527. Lies only to statement of causes of action, not prayer for relief. 11 Id. 194. For defects of parties defendant, lies only where petition shows want of them. 11 Neb. 396. Misjoinder of plaintiffs not ground for demurrer. 19 Neb. 724. To render demurrer effective one at least of causes must be substantially stated. 19 Neb. 741. For misjoinder of causes of action lies only where joinder is forbidden. 11 Id. 397. Judgment must be against party whose pleading was first defective in substance. 1 Neb. 424. Party who stands on demurrer and brings sase up, is concluded thereby. 8 Neb. 502. A defect which appears on face of petition should be taken advantage of by demurrer. 21 Neb., 215. Exception waived by answering over. 27 Id., 67.

SEC. 97. [Misjoinder-Separation.]-When a demurrer is sustained on the ground of misjoinder of several causes of action, the court, on motion of the plaintiff, shall allow him, with or without costs in its discretion, to file several petitions, each including such of said causes of action as might have been joined; and an action shall be docketed for each said of petitions, and the same shall be proceeded in without further service.

SEC. 98. [Demurrer in part-Answer in part.]-The defendant may demur to one or more of the several causes of action stated in the petition, and answer as to the residue.

SEC. 99. [Answer-Contents.]-The answer shall contain: First-A general or specific denial of each material allegation of the petition controverted by the defendant. Second-A statement of any new matter constituting a defense, counter-claim or set-off, in ordinary and concise language, and without repetition.

SEC. 100. [Several grounds of defense.]-The defendant may set forth in his answer as many grounds of defense, counter-claim and set-off as he may have. Each must be separately stated and numbered and they must refer in an intelligible manner to the cause of action which they are intended to answer.

SEC. 101. [Counter-claim.]-The counter-claim mentioned in the last section must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action.

SEC. 102. [Same-Omission-Effect-Costs.]-If the defendant omit to set up the counter-claim or set-off, he cannot recover costs against the plaintiff in any subsequent action thereon; but this section shall not apply to causes of action which are stricken out of or withdrawn from the answer, as provided in sections one hundred and three and one hundred and twenty-six.

SEC. 103. [Same-New party.]—When it appears that a new party is necessary to final decision upon the counter-claim, the court may either permit the new party to be made, by a summons, to reply to the counter-claim, or may direct the counterclaim to be stricken out of the answer, and made the subject of a separate action.

SEC. 104. [Set-off.]—A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract, or ascertained by the decision of the court.

SEC. 99. Allegation that only specified sum is due, no defense. 16 Neb. 12. Payment must be plead. 16 Neb. 482. General denial inconsistent with plea of part payment. 16 Neb. 486. Denials must be direct. 4 Neb. 523. 5 Id. 37. New matter must be plead. 5 Neb. 124. 10 Id. 161. 16 Id. 89. General denial good plea to allegation of adultery. 6 Neb. 306. Estoppel must be plead. 8 Neb. 142. General denial does not put in issue corporate character of corporation or its power to sue. 8 Neb. 456. 13 Id. 46. Facts should be stated plainly and concisely. 5 Neb. 124. 7 Id. 38. Plea in bar or former recovery must be plead. 6 Neb. 441. Alleging that defendant "never signed said note," etc., "but if he did," etc., admits that he signed. 12 Neb. 425. Taking leave to answer waives objections to manner in which prior orders of court relative to itemization of account sued on, no exception being taken. 8 Neb. 204. Averment that defendant "received no consideration" for note sued on nullified by facts in same answer showing there was a consideration. 10 Neb. 208. Striking out defenses as "Irrelevant." 9 Neb. 321. Sufficiency in action on "machine note." 10 Neb. 209. Allegations of former recovery held no defense. 6 Neb. 505. Every defense, whether partial or entire, must be set up. 5 Neb. 62. In case stated, Held, That defenses set up were not inconsistent. 23 Neb. 360. Where it is sought to enjoin a judgment upon the ground that plaintiff has a defense to the action, and it would be inequitable and unjust to enforce the judgment, the facts constituting the alleged defense must be pleaded, and it is not sufficient to merely allege that plaintiff had such a defense. 23 Neb. 558. Filing answer waives exceptions to special demurrer. 22 Neb. 360. Where in action on promissory note and account, answer was plea of payment and over-payment, and there is a failure of proof to show payment of account, verdict for defendant cannot be sustained. 21 Neb. 620.

SEC. 100. Defenses must be consistent. 19 Neb. 105.

SEC. 101. Counter-claim is an independent cause of action. 12 Neb. 225. Is in nature of cross action; should state facts, not conclusions of law. Id. 136. Mortgagor may set up for waste by mortgagee in possession. 2 Neb. 12. Plea of usury not such a counter-claim as can be retained and tried by court, after dismissal of action without prejudice. 12 Neb. 506. Counter-claim in case stated. 15 Neb. 175. Exception to may be take at any time, or error. 30 Id., 407.

SEC. 104. Set-off generally. 12 Neb. 218. Allowed in foreclosure suit for taxes paid. 5 Neb. 433. And in action for recovery of purchase money. 4 Neb. 193. Insolvency sufficient ground for set-off. 5 Neb. 301. Not allowed for unliquidated damages. 3 Neb. 168. Contra. 12 Neb. 220. Not allowed in case of mutual judgments. 3 Neb. 166. A claim on the part of a defendant, which he will be entitled to set off against the claim of a plaintiff against him, must be one upon which he conld, at the date of the commencement of the suit, have maintained action on his part against plaintiff. 15 Neb. 672. 18 Id. 172. Allowed in action by endorsee of overdue note. 7 Neb. 82. Maker may set off any liquated demand which he held against payee at time of assignment, but claims subsequently acquired, even though they had their origin in previous transactions, are not the subject of set-off. T Neb. 88. Delinquent taxes proper subject of set-off. 9 Neb. 345.

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The Compiled Statutes of the State of Nebraska: 1881 (6th Ed.), with ...