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SEC. 8. [Forcible entry and detainer.]--An action for the forcible entry and detainer, or forcible detainer only, of real property can only be brought within one year after the cause of such action shall have accrued.
SEC. 9. [Other civil actions-Limitations.]-Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued:
SEC. 10. [Written instrument-Foreign judgment.]-Within five years, an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment.
SEC. 11. [Parol contract.]-Within four years, an action upon a contract, not in writing, expressed or implied; an action upon a liability created by statute, other than a forfeiture or penalty.
SEC. 12. [Trespass to realty - Personalty - Replevin-Torts— Fraud.]-Within four years, an action for trespass upon real property; an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud, but the cause of action in such case shall not deemed to have accrued until the discovery of the fraud.
SEC. 13. [Injury to character-Assault-Malicious False imprisonment-Penalty.]-Within one year an action for libel, slander, assault and battery, malicious prosecution or false imprisonment; an action upon a statute for a penalty or forfeiture, but where the statute giving such action prescribes a different limitation, the action may be brought within the period so limited.
SEC. 14. [Official bond - Undertaking. An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any other officer, or upon the bond or undertaking given in attachment, injunction, or in any case whatever required by statute, can only be brought within ten years.
SEC. 15. [Contract-Failure of consideration.]-Actions brought for damages growing out of the failure, or want of consideration of contracts, express or implied, or for the recovery of money paid upon contracts, express or implied, the consideration of which has wholly or in part failed, shall be brought within four years.
SEC. 16. Other relief.]-An action for relief not herein before provided for, can only be brought within four years after the cause of action shall have accrued.
SEC. 17. Legal disabilities-Action in rem.—If a person entitled to bring any action mentioned in this title, except for a penalty or forfeiture, be, at the time the cause of action accrued, within the age of twenty-one years, a married woman, insane, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this title after such disability shall be removed. The absence from the state, death, or other disability of a non-resident, save the cases mentioned in this section, shall not operate to extend the period within which actions in rem shall be commenced by and against such non-resident, or his representatives.
SEC. 8. Cited 16 Neb. 576.
SEC. 9. See note to Sec. 5.
SEC. 10. County warrants not within statute. 1 Neb. 382. Statute will not run in two different states at same time; commences to run on removal into state. 9 Neb. 501. 12 Id. 501. Court cannot add time of residence in another state to time here to create bar. 12 Neb. 501. On facts stated promise and payment, Held, Not to take debt out of statute. 2 Neb. 22. 11 Id. 418. 12 Id. 469. Promises held, to take debt out of statute. 16 Neb. 21, 55. Receipt and indorsement on promissory note by the holder of money realized from a collateral left with him by the maker for that purpose, will remove bar of statute. 14 Neb. 194. Pleadings. 16 Neb. 677. A note secured by a mortgage is not a specialty" within the meaning of the statute. 5 Neb. 87. Part payment or a new promise upon an outlawed firm note, made by one partner, after dissolution, does not revive the debt against another partner. 5 Neb. 370. A judgment of a state court properly authenticated is conclusive upon the merits of the suit, but the statute of limitation may be plead in an action brought in another state upon such judgment. 6 Neb. 428.
SEC. 12. Cited 4 Neb. 95. Action for rent and profits barred in four years; recovery not barred by occupying claimant's act. 12 Neb. 544.
SEC. 13. When right of action for malicious prosecution is complete see 13 Neb. 466.
SEC. 17. Whether a married woman is considered under legal disability, Quære. See ohapter entitled "MARRIED WOMEN," and also amendment made to section 7 of this code. An action to subject mortgaged property to the payment of the mortgage debt is a proceeding in rem, and the last clause of this section applies to such action. 5 Neb. 89, 465. 6 Neb. 391. 9 Neb. 232.
SEC. 18. [Actions barred by laws of other states.]-All actions, or causes of action, which are or have been barred by the laws of this state, or any state or territory of the United States, shall be deemed barred under the laws of this state.
SEC. 19. [Action when commenced.]--An action shall be deemed commenced, within the meaning of this title, as to the defendant, at the date of the summons which is served on him; where service by publication is proper, the action shall be deemed commenced at the date of the first publication, which publication shall be regularly made.
SEC. 20. [Defendant--Out of the state-Concealed.]-If, when a cause of action accrues against a person, he be out of the state, or shall have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the state, or while he is absconded or concealed; and if, after the cause of the action accrues he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.
SEC. 21. [Action barred by laws of other state.--When a cause of action has been fully barred by the laws of any state or country where the defendant has previously resided, such bar shall be the same defense in this state as though it had arisen under the provisions of this title.
SEC. 22. [Part payment-New promise-Acknowledgment.- In any cause founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made in writing, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise.
SEC. 23. In all actions. upon bills of exchange or promissory notes, or other written instruments, whenever any of the parties thereto are designated by the initial letter or letters, or some contraction of the christian or first name or names, it shall be sufficient to designate such person by the name, initial letter or letters, or contraction of the first name or names, instead of stating the christian or first name or names in full.
SEC. 24. [Associations-Firms, how named.]—Any company or association of persons formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property in this state, and not incorporated, may sue and be sued by such usual name as such company, partnership, or association may have assumed to itself or be known by, and it shall not be necessary in such case to set forth in the process or pleading, or to prove at the trial, the names of the persons composing such company. SEC. 25. [Same-Process-Service.]-Process against any such company or firm shall be served by a copy left at their usual place of doing business within the county, with one of the members of such company or firm, or with the clerk or general agent thereof, and executions issued on any judgments rendered in such proceedings shall be levied only on partnership property.
SEC. 26. [Same-Security for costs.-In cases where a company shall sue in its partnership name, such company shall procure the writ to be endorsed by a responsible surety, resident of the county, for costs, or otherwise give security for costs.
SEC. 19. Jurisdiction attaches when defendant is legally served. 2 Neb. 136. See also 11 Neb. 343. 13 Id. 231. 16 Id. 5. SEC. 20. Effect of temporary absence of debtor. 4 Neb. 29, 30. 5 Neb. 88. 16 Id. 677. See also 12 Neb. 501. The section applies to all personal actions, whether they accrue within or without the state, or in favor of resident or non-resident. 12 Neb. 472.
SEC. 22. Acknowledgment and promises held to take case out of statute. 16 Neb. 56. Partial payment, acknowledgment of debt or promise to pay after debt barred will revive it. 16 Neb. 23.
SEC. 23. Provisions strictly construed. 7 Neb. 243.
SEC. 26. Security should be given before summons is delivered for service. Failure to do so however 12 Neb. 40. Giving of security is essential perquisite to maintenance of action. 7 Neb. 246.
SEC. 27. Same-Individual property, how subjected.]--If the plaintiff, in any judgment so rendered against any company or partnership, shall seek to charge the individual property of the persons composing such company or firm,. it shall be lawful for him to file a bill in chancery against the several members thereof, setting forth his judgment and the insufficiency of the partnership propty to satisfy the same, and to have a decree for the debt, and an award of execution against all such persons, or any of them, as may appear to have been members of such company, association or firm.
SEC. 28. [Repealed. Gen. Stat. 713.]
TITLE III.-PARTIES TO CIVIL ACTIONS.
SEC. 29. [Action prosecuted in name of real party in interest.]Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section thirty-two.
SEC. 30. [Action by assignee.]-The assignee of a thing in action may maintain an action thereon, in his own name and behalf, without the name of the assignor.
SEC. 31. [Assignment Effect on equities.]-In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense now allowed; but this section shall not apply to negotiable bonds, promissory notes, or bills of exchange, transferred in good faith, and upon good consideration, before due.
SEC. 32. [Beneficiaries -- Officers - Official bonds -- Authorized persons.]-An executor, administrator, guardian, trustee of an express trust, a person with whom. or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way.
SECS. 33-34. [Repealed. Gen. Stat. 713.]
SEC. 35. [Husband and wife joined.]—If a husband and wife be sued together, the wife may defend for her own right; and, if the husband neglect to defend, she may defend for his right also.
SEC. 36. [Infant-Action for.-The action of an infant must be brought by his guardian or next friend. When the action is brought by his next friend, the court has power to dismiss it, if it is not for the benefit of the infant; or, to substitute the guardian of the infant, or any person, as the next friend.
SEC. 37. [Same-Liability for costs.]-The guardian, or the next friend, is liable for the costs of the action brought by him, and, when he is insolvent, the court may require security for them. Either may be a witness in an action brought by him.
SEC. 38. [Infant-Action against.]--The defense of an infant must be
SEC. 27. Action in foreign state and judgment against partnership there. Suit here on such judgmentagainst two of the partners to charge them personally. Held, That to maintain such action it was necessary to allege in the petition, and, if denied, prove that the partnership property was insufficient to satisfy the judg ments. 10 Neb. 262. 14 Id. 107.
SEC. 29. A private person cannot maintain an action to abate a public nuisance, unless he can aver and prove some special injury to himself. 1 Neb. 337. The interest of one not a nominal party to a written instru8 Neb. 468. Cited ment must affirmatively appear in the petition to enable him to maintain a suit thereon. also 9 Neb. 25, 433.
SEC. 30. The assignee of a mechanic's lien can maintain the action. 4 Neb. 58. The assignee of a chose in action is the proper and only party who can maintain a suit thereon. 1 Neb. 327.
SEC. 31. This section simply gives the right of set off in an action by the assignee, and limits it to such as is "now allowed." 3 Neb. 166. See note to sec. 104. An innocent purchaser before due and without notice takes a note free from defense of usury. 9 Neb. 226. 10 Neb. 86. A set-off to a promissory note which would have been good between original parties may be pleaded against an indorsee who acquires it after maturity. 7 Neb. 82.
SEC. 32. Cited 5 Neb. 93. This section authorizes suit on an official bond by the public, while sec. 643 gives a right of action to an individual. 9 Neb. 434. Insured may bring action without joining beneficiary.
11 Neb. 172.
SECS. 33, 34. See sec. 3, chap. 53, ante.
SEC. 37. The infant is not liable for costs, even in an action brought without a guardian or next friend but not terminated during infancy, if, on reaching his majority, he disclaims all benefits from the suit, and refuses to proceed further. 8 Neb. 341. Duty of general guardian to make defense, 15 Neb. 297.
by a guardian for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge. The appointment cannot be made until after service of the summons in the action, as directed by this code.
SEC. 39. [Same-Guardian ad item.-The appointment may be made upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the return of the summons. If he be under the age of fourteen, or neglect so to apply, the appointment may be made upon the application of any friend of the infant, or on that of the plaintiff in the action.
SEC. 40. [Plaintiff Joinder.]-All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title.
SEC. 41. [Defendants, who made.]--Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.
SEC. 42. [Parties united in interest joined.]-Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition.
SEC. 43. [Same-Common interest-Numerous parties.]-When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.
SEC. 44. [Parties severally liable.]--Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.
SEC. 45. Action not to abate by disability.]--An action does not abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, during its pendency, if the cause of action survive or continue. In the case of the marriage of a female party, the fact being suggested on the record, the husband may be made a party with his wife; and, in the case of the death or other disability of a party, the court may allow the action to continue by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made, to be substituted in the action.
SEC. 46. [Parties necessary to determine controversy.]--The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.
SEC. 47. [Same-Parties having interest in property.]--When, in an action for the recovery of real or personal property, any person having an interest in the property applies to be made a party, the court may order it to be done.
SEC. 48. [Preservation of property-Interpleader.]-Upon the affidavit of a defendant before answer in an action upon contract, or for the recovery of personal property, that some third party, without collusion with him, has or
SEC. 40. Action by surety who has paid judgment, original plaintiffs not proper parties. 1 Neb. 339 Attorney may be admitted as party plaintiff. 10 Neb. 579. 11 Id. 522. Objection that plaintiff has not legal capacity to sue not available to stranger. 15 Neb. 14. Parties in foreclosure cases see note to sec. 845. SEC. 42. liable must be SEC. 43. SEC. 44 SEC. 45. 12 Id. 330. SEC. 46.
Action by widow and children against liquor sellers. 9 Neb. 311. 15 Id. 154. Parties jointly
Action against guarantor and maker of note. 9 Neb. 477.
Cited 14 Neb. 429.
See 14 Neb. 212.
See also 4 Neb. 58. 6 Id. 521.
makes a claim to the subject of the action, and that he is ready to pay or dispose of the same, as the court may direct, the court may make an order for the safekeeping, or for the payment, or deposit in court, or delivery of the subject of the action, to such person as it may direct, and an order requiring such third party to appear in a reasonable time and maintain or relinquish his claim against the defendant. If such third party, being served with a copy of the order by the sheriff, or such other person as the court may direct, fail to appear, the court may declare him barred of all claim in respect to the subject of the action, against the defendant therein. If such third party appear, he shall be allowed to make himself defendant in the action, in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon his compliance with the order of the court for the payment, deposit or delivery thereof.
SEC. 49. [Same-Sheriff.]-The provisions of the last section shall be applicable to an action brought against a sheriff, or other officer, for the recovery of personal property, taken by him under execution, or for the proceeds of such property so taken and sold by him. And the defendant in such action shall be entitled to the benefit of those provisions against the party in whose favor the execution issued, upon exhibiting to the court the process under which he acted, with his affidavit that the property, for the recovery of which, or its proceeds, the action is brought, was taken under such process.
SEC. 50. [Action against sheriff Interested party substituted.] --In an action against a sheriff, or other officer, for the recovery of property taken under an execution, and replevied by the plaintiff in such action, the court may, upon application of the defendant, and of the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the costs being given.
TITLE IV.—THE COUNTY IN WHICH ACTIONS ARE TO BE BROUGHT.
SEC. 51. [Realty-Recovery-Partition-Sale.]-Actions for the fol lowing causes must be brought in the county in which the subject of the action is situated, except as provided in section fifty-two. First. For the recovery of real property or of an estate or interest therein. Second. For the partition of real property. Third. For the sale of real property under a mortgage, lien or other incumbrance or charge.
SEC. 52. [Same-In several counties.]-If the real property, the subject of the action, be an entire tract, and situated in two or more counties, or if it consists of separate tracts situated in two or more counties, the action may be brought in any county in which any tract or part thereof is situated, unless it be an action to recover the possession thereof. And if the property be an entire tract, situated in two or more counties, an action to recover the possession thereof may be brought in either of such counties; but if it consists of separate tracts in different counties, the possession of such tracts must be recovered by separate actions brought in the counties where they are situated.
SEC. 53. Same-Specific performance.]-An action to compel the specific performance of a contract of sale of real estate, may be brought in the county where the defendants, or any of them, reside.
SEC. 54. Fines-Penalties-Public officers-Official bonds.-Actions for the following causes must be brought in the county where the cause, or some part thereof, arose: First. An action for the recovery of a fine, forfeiture or penalty, imposed by a statute; except that, when it is imposed for an offense committed on a river, or other stream of water, or road which is the boundary of two or more counties, the action may be brought in any county bordering on such river, water-course or road, and opposite to the place where the offense was com mitted. Second. An action against a public officer, for an act done by him in vir
SEC. 50. The substitution must be made before final judgment. 8 Neb. 466.