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tue or under color of his office, or for a neglect of his official duty. Third. An action on the official bond or undertaking of a public officer.
SEC. 55. [Against corporations.]-An action other than one of those mentioned in the first three sections of this title, against a corporation created by the laws of this state, may be brought in the county in which it is situated, or has its principal office or place of business; but if such corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof, arose.
SEC. 56. [Railroad-Stage companies.]—An action against a railroad company, or an owner of a line of mail stages, or other coaches, for an injury to person or property upon the road or line, or upon a liability as a carrier, may be brought in any county through or into which the said road or line passes.
SEC. 57. [Turnpike companies.]-An action other than one of those mentioned in the first three sections of this title, against a turnpike road company, may be brought in any county in which any part of the road lies.
SEC. 58. [Corporations-Exceptions.]-The provisons of this title shall not apply in the case of any corporation created by a law of this state, whose charter prescribes a place where alone a suit against such corporation may be brought.
SEC. 59. [Non-residents,]-An action other than one of those mentioned in the first three sections of this title, against a non-resident of this state or a foreign corporation, may be brought in any county in which there may be property of, or debts owing to, said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county where the cause, or some part thereof, arose.
SEC. 60. [Other actions.]-Every other action must be brought in the county in which the defendant, or some of the defendants, resides, or may be summoned.
SEC. 61. [Change of venue.]-In all cases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, or when the judge is interested or has been of counsel in the case or subject matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court may on application of either party change the place of trial to some adjoining county, wherein such impartial trial can be had; but if the objection be against all the counties of the district, then to the nearest county in the adjoining district. [R. S. 402. Amended to take effect Sept. 1, 1873. G. S. 532.]
SEC. 61 a. [Same-Proceedings.]-SEC. 3. When an order is made transferring a cause for trial, as provided in the preceding section, the clerk of the court must transmit the pleadings and papers therein to the clerk of the court to which it is transferred. The costs and fees thereof, and of filing the papers anew, must be paid by the party at whose instance the order was made. The court to which an action is transferred shall have and exercise over the same the like jurisdiction as if it had been originally commenced therein. [G. S. 712.]
SEC. 61 b. [Same-Final judgment,]-SEC. 4. When an action affecting the title or possession of real estate has been brought in or transferred to any court of a county, other than the county in which the real estate or some portion of it is situated, the clerk of such court must, after final judgment therein, certify such judgment under his seal of office, and transmit the same to the corresponding court of the county in which the real estate affected by the action is situated. The clerk receiving such copy must file, docket, and record the judgment in the records of the court, briefly designating it as a judgment transferred from court (naming the proper court). [G. S. 712.]
SEC. 60. Action against maker and endorser of note may be brought in any county where one of the parties resides or may be summoned. 14 Neb. 213.
TITLE V.-MANNER OF COMMENCING ACTIONS.
SEC. 62. [How-Petition -Summons.]--A civil action must be commenced by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon. [R. S. 403. 1869, 63. 1871, 110. G. S. 533.] SEC. 63. [Precipe.]—The plaintiff shall also file with the clerk of the court a precipe stating the names of the parties to the action, and demanding that a summons issue thereon.
SEC. 64. [Summons-Requisites.]-The summons shall be issued by the clerk, shall be under the seal of the court from which the same shall issue, and shall be signed by the clerk. Its style shall be, "The State of Nebraska,county," and it shall be dated the day it is issued. It shall be directed to the sheriff of the county, and command him to notify the defendant or defendants named therein, that he or they have been sued, and must answer the petition filed by the plaintiff, giving his name, at the time stated therein, or the petition will be taken as true and judgment rendered accordingly. And where the action is for the recovery of money only, there shall be endorsed on the writ the amount to be furnished in the precipe, for which, with interest, judgment will be taken, if the defendant fail to answer. If the defendant fail to appear, judgment shall not be rendered for a larger amount and the costs.
SEC. 65. [Summons issued to several counties.]-Where the action is rightly brought in any county, according to the provisions of title four, a summons shall be issued to any other county, against any one or more of the defendants, at the plaintiff's request.
SEC. 66. [Summons-When returnable.]-Whenever the time for bringing parties into court is not fixed by statute, the summons shall be returnable on the second Monday after the day of its date, but when issued to any other county than the one in which the action is brought, it may be made returnable at the option of the party having it issued, on the third or fourth Monday after its date. It shall state the day of the month on which it is returnable.
SEC. 67. [Alias summons.]-When a writ is returned "not summoned," other writs may be issued, until the defendant or defendants shall be summoned; and when defendants reside in different counties, writs may be issued to such counties at the same time.
SERVICE OF SUMMONS-ACTUAL SERVICE.
SEC. 68. [By whom.]-The summons shall be served by the officer to whom it is directed, who shall indorse on the original writ the time and manner of service. It may also be served by any person not a party to the action, appointed by the officer to whom it is directed. The authority of such person shall be indorsed on the writ. When the writ is served by a person appointed by the officer to whom it is directed, or when the service is made out of this state, the return shall be verified by oath or affirmation.
SEC. 69. [How served.]-The service shall be by delivering a copy of the
SEC. 62. Jurisdiction attaches when defendant legally served. service of summons or appearance. Id. 10 Id. 113. 15 Id. 493. 9 Id. 395, 536. 11 Id. 48. 14 Id. 518.
SEC. 64. Amendment of caption. 4 Neb. 382. 12 Id. 202. 13 Id. 382. Amendment by correcting mistake in name of plaintiff relates back to time of service. 4 Neb. 178. Indorsement of amount claimed. 1 Neb. 133. 3 Id. 219. 9 Id. 108, 124. 13 Id. 35. 14 Id. 243. 16 Id. 26. "Action for recovery of money only" defined. 9 Neb. 60.
SEC 65. Cited 14 Neb. 213.
Should not issue until first writ re
SEC. 68. Service by unauthorized person void. 9 Neb. 94. By bailiff unauthorized. 11 Neb. 228. Deputation to serve. 9 Neb. 94. 12 Id. 41. 13 Id. 282. Service by coroner. 12 Neb. 499. 16 Id. 647. In divorce cases. 10 Neb. 150.
2 Neb. 136. Jurisdiction obtained by And see generally 5 Neb. 107. 6 Id. 242.
SEC.. 69. Service on return day, geod. 1 Neb. 432. "At usual place of residence" means place of abode at time of service. 4 Neb. 30. 5 Id. 88. Return not conclusive as to residence. 14 Neb. 276. Service by "reading" and "at place of business" not good. 9 Neb. 504. 8 Id. 112. On partners must be at place of business. 10 Neb. 263.
summons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return day.
SEC. 70. [Return.]—In all cases the return must state the time and manner of service.
SEC. 71. [Returned, when.]-The officer to whom the summons is directed must return the same at the time therein stated.
SEC. 72. [Acknowledgment - Voluntary appearance.] - An acknowledgment on the back of the summons, or the voluntary appearance of a defendant is equivalent to a service.
SEC. 73. [Corporations.]-A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office, or last usual place of business of such corporation.
SEC. 74. [Same-Insurance companies.]-When the defendant is an incorporated insurance company, and the action is brought in a county, in which there is an agency thereof, the service may be upon the chief officer of such
SEC. 75. [Foreign corporations.]-When the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent.
SEC. 76. [Infants.]-When the defendant is a minor under the age of fourteen years, the service must be upon him, and upon his guardian or father; or, if neither of these can be found, then upon his mother, or the person having the care or control of the infant, or with whom he lives. If neither of these can be found, or if the minor be more than fourteen years of age, service on him alone shall be sufficient. The man r of service may be the same as in the case of adults.
SEC. 77. [By publication, when.]-Service may be made by publication in either of the following cases: First. In actions brought under the fifty-first, fifty-second, and fifty-third sections of this code, where any or all of the defendants reside out of the state. Second. In actions brought to establish or set aside a will, where any or all the defendants reside out of the state. Third. In actions brought against a non-resident of this state, or a foreign corporation, having in this state property or debts owing to them, sought to be taken by any of the provisional remedies, or to be appropriated in any way. Fourth. In actions which relate to, or the subject of which is, real or personal property in this state, where any defendant has or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partially in excluding him from any interest therein, and such defendant is a non-resident of the state or a foreign corporation. Fifth. In all actions where the defendant being a resident of the state has departed therefrom, or from the county of his residence, with intent to delay or defraud his creditors or to avoid the service of a summons, or keeps himself concealed therein with the like intent.
SEC. 70. Service on two defendants separately, Held, That words in return "with all endorsements," although appearing but once, applied to both copies. 14 Neb. 447. Directed to be served on Harrison Johnson, good if served on "H. Johnson." 2 Neb. 131. Return cannot be attacked collaterally. 2 Neb. 133. Want of formality in return not fatal. 10 Neb. 351. Presumption is that service was made in county of which sheriff is officer. 9 Neb. 94.
SEC. 72. Appearance waives defects in process. 1 Neb. 107. 3 Id. 117, 219. 14 Id. 215. 16 Id. 96. Special appearance. I Neb. 15, 107. 3 Id. 220. 8 Id. 113. 328. What constitutes appearance. 1 Neb. 107. 6 Id. 351. 16 Id. 96, 290, 328. 504. Appearance by attorney. 6 Neb. 427. 13 Id. 96. 14 Id. 304, 456. 16 Íd. 96. 15 Id. 572.
4 Id. 512. 8 Id. 113. 9 Id. 504. 16 Id. 227, What does not. 9 Neb. By agent. 1 Neb. 290.
SEC. 73. Service on agent. 1 Neb. 15. May be on treasurer in absence of president and secretary. 13 Neb. 233.
SEC. 75. "Managing agent" defined. 1 Neb. 15.
SEC. 77. Cannot be questioned collaterally. 1 Neb. 289. 2 Id. 155. But see 12 Neb. 347, and 15 Id. 312. Cases referred to in this section relate solely to property. 9 Neb. 199. See also 13 Neb. 538, 15 Id. 177, 200, 315.
SEC. 78. [Affidavit.]-Before service can be made by publication, an affidavit must be filed, that service of a summons cannot be made within this state, on the defendant or defendants to be served by publication, and that the case is one of those mentioned in the preceding section. When such affidavit is filed the party may proceed to make service by publication.
SEC. 79. [Publication, how made.]-The publication must be made four consecutive weeks, in some newspaper printed in the county where the petition is filed, if there be any printed in such county; and if there be not, then in some newspaper printed in the state of general circulation in that county. It must contain a summary statement of the object and prayer of the petition, mention. the court wherein it is filed, and notify the person or persons thus to be served, when they are required to answer.
SEC. 80. [Same-When complete-Proof.]-Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in the preceding section; and such service shall be proved by the affidavit of the printer, or his foreman or principal clerk, or other person knowing
SEC. 81. [Personal service out of state.]-In all cases where service may be made by publication, and in all other cases where the defendants are non-residents, and the cause of action arose in the state, suit may be brought in the county where the cause of actior arose, and personal service of the summons may be made out of the state by the sheriff or some person appointed by him for that purpose. In all cases where service of a summons is made on a person without the state, proof of such service must be made by affidavit, stating the time and manner of service, and such service shall be made in the same manner as summonses are served on parties residing within the state.
SEC. 82. [Judgment on constructive service, how opened.]—A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within five years after the date of the judgment or order, have the same opened and be let in to defend; before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judg ment or order, as provided by this section, shall be allowed to present counter affidavits, to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make his defense.
SEC. 83. [Unknown heirs.]-In actions where it shall be necessary to make the heirs or devisees of any deceased person defendants, and it shall appear by the affidavit of the plaintiff annexed to his petition, that the names of such heirs or devisees, or any of them, and their residences, are unknown to the plaintiff, proceedings may be had against such unknown heirs or devisees, without naming them, and the court shall make such order respecting service as may be
SEC. 78. Validity of affidavit. 7 Neb. 152. 9 Id. 199. 15 Id. 177, 315, 615. Is jurisdictional. 9 Neb. 202. 10 Id. 113. 13 Id. 538. 15 Neb. 616. Not necessary to state cause of action. 15 Neb. 317. Sufficiency where infants are defendants. 15 Neb. 30. Omissions not fatal. 15 Neb. 178. Need not refer to sec. 77. 15 Neb. 315.
SEC. 79. Four weekly publications good. 9 Neb. 199. Five, valid. 15 Neb. 178. When complete. 15
SECS. 80, 81. Cited 7 Neb. 152. 9 Id. 199.
SEC. 82. Defendant having no actual notice may open as a matter of right. 10 Neb. 238. 14 Id. 304, 319. Section does not apply to divorce cases. 10 Neb. 392. Judgment entered on appearance by attorney without authority may be opened. 12 Neb. 113. Purchaser not affected by opening. 15 Neb. 103, 203. Party appearing within time, power of court to grant relief continues until exercised. 15 Neb. 319. Provisions do not include strangers to record. 16 Neb. 425. See also 15 Neb. 570. 16 Id. 96.
deemed proper; if service by publication be ordered, the publication shall not be less than four weeks.
SEC. 84. [Defendants not all served-Proceedings.]-Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows: First. If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct. Second. If the action be against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.
SEC. 85. [Pendency of action-Notice.]-When the summons has been served, or publication made, the action is pending, so as to charge third persons with notice of its pendency, and while pending, no interest can be acquired by third persons in the subject matter thereof, as against the plaintiff's title.
SEC. 86. [Same-Real property-Several counties.]-When any part of the real property, the subject matter of an action, is situated in any other county or counties than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the clerk's office of such other county or counties, before it shall operate therein as a notice, so as to charge third persons, as provided in the preceding section. It shall operate as such notice, without record, in the county where it is rendered; but this section shall not apply to actions or proceedings under any statute now in force, which does not require such record.
SEC. 86 a. [Service on real estate agent of non-resident.]-SEC. 1. That it shall be lawful for any person, or corporation, owning or claiming any interest in, or lien upon any real estate lying within this state, to make and file in the office of the county clerk of the county in which such real estate is situated an appointment, in writing, of some person, who shall be a resident of the county in which said lands lie, upon whom process may be sued [served,] in any suit, action or proceeding, concerning or affecting such real estate, to which such owner or claimant shall be made a party. Such appointment shall be acknowledged in the manner provided by law for the acknowledgment of deeds. From and after the filing of such appointment as herein provided, service of any writ, summons, order or notice, in any suit, action or proceeding concerning or affecting such real estate, shall be made upon the person so appointed and designate[d] in such manner as may be provided by law for the service of process upon persons found in this state, and shall be held and taken to be a valid and effectual service upon such owner or claimant. A copy of such appointment, or of the record thereof, duly certified by the said clerk, shall be deemed sufficient evidence thereof. And no service made by publication shall be valid in respect to any such owner or claimant, who shall have filed an appointment under the provisions of this act; Provided, That such appointment may be at any time revoked by such owner or claimant, but such revocation shall be in writing, duly acknowledged and filed, and recorded in the office of the county clerk in which the appointment shall have been filed and recorded, but such revocation shall not affect any suit or proceedings commenced before the same shall have been recorded; And provided further, That this act shall in no wise affect any action or proceeding which shall have been commenced before the passage hereof, in which service of process shall have been made in accordance with the law in force at the time of its commencement. [1877 § 1, 17.]
SEC. 86 b. [Record.]-SEc. 2. That the county clerk of each county shall keep a book in which he shall record such appointments as shall be filed under the provisions of this act and any revocation thereof, and shall be entitled to demand and receive therefor, a fee of seventy-five cents, and ten cents for each folio of one hundred words contained therein. [Id. § 2.]
SEC. 84. Cited 12 Neb. 330.