TITLE VI.-JOINDER IN ACTIONS.

SEC. 87. [What causes joinable.-The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal, or equitable, or both, when they are included in either of the following classes: First. The same transaction or transactions connected with the same subject of action. Second. Contracts, express or implied. Third. Injuries, with or without force, to person and property, or either. Fourth. Injur ies to character. Fifth. Claims to recover the possession of personal property, with or without damages for the 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:-First. The 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

SEC. 87. A petition to obtain the correction of an official bond, and to recover a money judgment for a breach thereof is not bad by reason of a misjoinder. 4 Neb. 565. In a real action, a demand for use and occupation, and for damages caused by a tortious injury to the premises, may be included in the petition. 4 Neb. 586. But in such case if defendant is a trustee, quære. A petition alleging in one count that shares of stock were purchased at judicial sale under a parol agreement to hold the same in trust for the plaintiff etc., and in another, that the court making the sale was without jurisdiction, but the defendant under color thereof procured a transfer of the shares on the books of the company, and received dividends in trust for plaintiff, is not bad by reason of misjoinder. 4 Neb. 394. A petition upon a note reciting the consideration and disposition of property for which it was given, but not alleging that there was a "wrongful conversion" of the property is not subject to objection by demurrer on the ground that "an action on a promissory note and an action of trover are improperly joined." 4 Neb. 263. The causes of action must be existing, not merely prospective. 9 Neb. 482. A petition setting up an account stated, and execution of a note for balance states but a single cause of action. 10 Neb. 55. A treasurer gave two bonds during same term of office. In an action on both bonds for a default occurring after execution of second, held that they were properly joined. 10 Neb. 408. A firm did business as J. W. D. & Associates, and also as D. S. & Co., held in an action against a member of the firm, upon a judgment against each firm, that judgments could be joined in one action. 10 Neb. 260. Recovery of lund and rents and profits. 12 Neb. 544. Demurrer lies only when joinder is forbidden. 11 Neb. 397. Defent not taken advantage of by demurrer or answer is waived. 10 Neb. 56.

SEC. 89. General rules. 16 Neb. 678. Construed liberally. 14 Id. 489. 16 Id. 441. 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.

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. Subtance not form considered. 12 Neb. 265.

SEC. 92. Title of cause is part of petition; unnecessary to repeat names in body. 11 Neb. 238. 13 Id. 411. Essential facts must be stated; conclusions of law not proper. 12 Neb. 411. Plaintiff can only recover on causes of action stated in petition. 16 Neb. 70. Allegata et probata must agree. 5 Neb. 331, 362. 1Id. 296. Relief conformable to prayer. 5 Neb. 331. Character of action determined by prayer. 10 Neb. 187. Relief granted as established facts warrant. 12 Neb. 132. Defective, cured if averment supplied by answer. 6 Neb. 272. But filing answer does not waive defect. 13 Neb. 257. Mistakes in copying intrument sued on not fatal. 12 Neb. 99. Petition that does not allege assignment of claim sued on, and no assignment proved is insufficient. 15 Neb. 112. Petition on county warrant. 1 Neb. 384. In cases of trust. 3 Neb. 61. For breach of covenants of warranty. 3 Neb. 85. For redemption of lands sold under mortgage. 4 Neb. 100. In cases of malicious prosecution. 4 Neb. 128. Petition headed "Supreme Court of New York" not sufficient to warrant dissolution of attachment. 4 Neb. 381. Goods sold and delivered. 11 Neb. 237, 387. Promissory note. 12 Neb. 277, 320. Against school district. 12 Neb. 242. Upon contract containing conditions precedent, plaintiff must aver performance in order to show a cause of action against defendant, unless he aver all facts necessary to show a waiver of the conditions precedent, and fix the defendants lfability without such performance on

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. 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.

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

his part. 5 Neb. 64, 78, 81. [See sec. 138, p. 208.] In an action on an undertaking in attachment, the petition should allege that the order of attachment was wrongfully sued out or obtained. It is not enough to state that the attachment was quashed and property released by proceedings in error. 5 Neb. 471. In an action for the rescission of a contract on the ground of fraud, the particular circumstances which constitute the alleged fraud must be stated in the petition. 6 Neb. 135. An averment that a claim against a county "was unjust and was allowed through fraudulent and undue means," is insufficient for either the admission of proof or the entry of a decree establishing fraud. 6 Neb. 201. In an action for libel plaintiff must aver and prove special damages, unless the words used are actionable per se. 6 Neb. 259. See also 11 Neb. 282. 15 Id. 507. Objection to admission of evidence on ground that petition does not state cause of action may be made during trial. 7 Neb. 317. If conclusion of law stated is essential, it should not be stricken out. 7 Neb. 463. Admission to state material fact presumption is it does not exist. 4 Neb. 307. 7 Id. 497. 12 Id. 242. 16 Id. 447. Action on written instrument, copy should be attached. 8 Neb. 214. Petition in action on official bond. 8 Neb. 348. 16 Id. 363. 10 Id. 408. 13 Id. 103. Where an action is brought on a written instrument by one not a party to it, his interest must be made to appear in the petition. 8 Neb. 468. Use of the word "as" in an allegation "that said defendant refused and neglected to cut plaintiff's wheat as defendant had agreed and contracted"-commented upon. 9 Neb. 80. A petition stating but one cause of action, but divided into numbered paragraphs is good against a motlon to strike out "the first, third and fourth counts," etc. 9 Neb. 210. Where a petition states a good cause of action the merits of the demand cannot be questioned on a motion to dissolve an attachment issued in the case. 9 Neb. 236. Where an action is brougnt for the purchase price of property sold it should appear from the petition that the debt is due. 10 Neb. 269. Where the action is founded upon a promise or duty the petition must allege non-performance. Id. In a petition to recover damages by neglect of clerk to properly enter transcript of judgment on the judgment record, so as to create a lien on real estate of the defendant, it is not necessary to allege that an execution had been issued on the judgment, and returned unsatisfied, but an allegation showing that the defendant owned no other property than that on which the lien was sought, and owing to such neglect this has become lost to him, is sufficient. 10 Neb. 528. In an action to subrogate plaintiff to rights of mortagee in a chattel mortgage,given as an indemnity, it is not necessary that petition should negative the fact of said mortgage having been discharged of record. 10 Neb. 431. For decisions relative to petitions in mortgages cases see note to sec. 845.

SEC. 94. Statute of limitation may be interposed by demurrer. 3 Neb. 87. 5 Id. 464. 6 Id. 392. 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. 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 case up, is concluded thereby. 8 Neb. 502.

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 of said 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. [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 a 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 counter-claim 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. 105. [Same-New party.]-When it appears that a new party is necessary to the final decision upon the set-off, the court shall permit the new party to be made, if it also appear that owing to the insolvency or non-residence

SEC. 99. Allegation that only a specified sum is due, is no defense. 16 Neb. 12. Payment must be plead to be available as a defense. 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; that can only be done by special denial in nature of plea in abatement. 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. 435. 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.

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.

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: but not until vendee has paid off the incumbrance. 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 could, at the date of the commencement of the suit, have maintained an action on his part against the plaintiff. 15 Neb. 672. Allowed in action by indorsee of overdue note. 7 Neb. 82. Maker may set off any liquidated 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. 7 Neb. 88. In an action against a city for gas light furnished by contract, delinquent taxes are proper subject of set off under the law as it stood prior to the act of 1879 providing a system of revenue. 9 Neb. 345.

of the plaintiff, or other cause, the defendant will be in danger of losing his claim, unless permitted to use it as a set-off.

SEC. 106. [Cross demands, compensated-Assignment.]-When cross-demands have existed between persons under such circumstances that if one had brought an action against the other a counter-claim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other, but the two demands must be deemed compensated, so far as they equal each other.

SEC. 107. [Answer of guardian-Attorney.]-The guardian of an infant or person of an unsound mind, or attorney for a person in prison, shall deny in the answer all material allegations of the petition prejudicial to such defendant.

REPLY.

SEC. 108. [Repealed. Gen. Stat. 713.]

SEC. 109. [Demurrer-Reply.]-The plaintiff may demur to one or more of the defenses set up in the answer, stating in his demurrer the grounds thereof, and where the answer contains new matter, the plaintiff may reply to such new matter denying generally or specifically, each allegation controverted by him; and he may allege, in ordinary and concise language, and without repetition, any new matter, not inconsistent with the petition, constituting a defense to such new matter in the answer. [R. S. 411. Amended to take effect Sept. 1, 1873. G. S. 541.]

GENERAL RULES OF PLEADING.

SEC. 110. [Time of filing.]-The answer or demurrer of the defendant shall be filed on or before the third Monday, and the reply or demurrer of the plaintiff on or before the fifth Monday after the return day of the summons, or service by publication.

SEC. 111. [Same-Extended.]-The court, or the judge thereof in vacation, for good cause shown, may extend the time for filing an answer or reply, upon such terms as may be just.

SEC. 112. [Subscribed by party or attorney.]-Every pleading in a court of record must be subscribed by the party, or his attorney.

SEC. 113. [Verification.]-Every pleading of fact must be verified by the affidavit of the party, his agent or attorney. A pleading verified as herein required, shall not be used against a party in any criminal prosecution or action, or proceeding for a penalty or forfeiture, as proof of a fact admitted or alleged in such pleading; and such verification shall not make other or greater proof necessary on the side of the adverse party.

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

SEC. 109. Prior to the amendments of this and sec. 134, it was held that no reply to new matter in answer was necessary, unless it constitutes a counter-claim or set off. 2 Neb. 289. Demurrer to answer should state grounds therefor. If not it will be considered as general. 4 Neb. 430. Demurrer admits as true all new matter plead in answer. 5 Neb. 432. Reply must be made to all material allegations of new matter in answer or they will be taken as true. 5 Neb. 488. 6 Neb. 218. 9 Neb. 321. A party demurring, in order to avail himself of exceptions taken to an order overruling demurrer, must rest thereon. If he reply he waives the exception. But this rule does not apply where the facts stated in the answer of themselves constitute no defense. 7 Neb. 240. Not province of reply to introduce new cause of action. 16 Neb. 70. Demurrer on ground of want of legal capacity to sue lies only when face of petition shows such want. 16 Neb. 484.

SEC. 110. Cited 15 Neb. 31. Time for answer. 1 Neb. 106. Party in default may be permitted to answer at any time before judgment. 7 Neb. 156. Answer should be tendered at time motion is made to open default, with affidavit showing cause for delay. 13 Neb. 67, 230.

SEC. 111. Order of court making up pleadings no exceptions taken, not reviewable. 6 Neb. 351.

SEC. 113. Want of verification not jurisdictional, 2 Neb. 138. 8 Id. 214. Failure to verify no ground for dismissal. 6 Neb. 435. No part of pleading; may be amended or supplied. 2 Neb. 137. Agent or attorney may make. 3 Neb. 116. Not necessary to petition in error. 9 Neb. 505. Affidavit that party "believes" facts stated to be true, sufficient. 4 Neb. 523.

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 ia 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 person before whom a deposition might be taken, 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.

SEC. 119. [Same-Amount claimed.]-The verification of a pleading does not apply to the amount claimed, except in actions founded on contr cts, 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.

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

SEC. 124. [Copies instrument sued on.]—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 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. 120. Amendment consists in the addition of the fifth subdivision. The section applies to all pleadings whether the relief is sought at law or in equity. 3 Neb. 116. See 2 Neb. 267. 3 Neb. 311.

SEC. 121.

SEC. 124. SEC. 125.

Cited 10 Neb. 527.

Cited 2 Neb. 267. 12 Neb. 85.