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SEC. 312. [Disregarded, when.]-No exception shall be regarded, unless it is material, and prejudicial to the substantial rights of the party excepting. SEC. 313. [Withdrawal from files.]-Exceptions taken to the decision of any court of record may, by leave of such court, be withdrawn from the files by the party taking the same, at any time before proceedings in error are commenced, and before the exceptions are recorded.


SEC. 314. [Defined-Grounds for allowance.]-A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated, and a new trial granted on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party: First. Irregularity in the proceedings of the court, jury, referee or prevailing party, or any order of the court, or referee, or abuse of discretion, by which the party was prevented from having a fair trial. Second. Misconduct of the jury or prevailing party. Third. Accident or surprise, which ordinary prudence could not have guarded against. Fourth. Excessive damages, appearing to have been given under the influence of passion or prejudice. Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property. Sixth. That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law. Seventh. Newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial. Eighth. Error of law occuring at the trial, and excepted to by the party making the application.

SEC. 315. [Not granted-Smallness of damages.]-A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor any other action where the damages shall equal the actual pecuniary injury sustained.

SEC. 316. [Application for, when made.]-The application for a new trial must be made at the term the verdict, report or decision is rendered, and, except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.

SEC. 317. [Same-Upon written motion.]-The application must be by motion upon written grounds, filed at the time of making the motion. It shall be sufficient however in assigning the grounds of the motion to assign the same in the language of the statute and without further or other particularity. The causes enumerated in subdivisions 2, 3, and 7, of section 314, must be sustained

SEC. 314. Discretion of court. 13 Neb. 373. Jurisdiction of supreme court. 6 Neb. 253. Granting of new trial not interfered with unless it is clearly shown that some legal right of the party objecting has been disregarded. 15 Neb. 226. Grounds for do not embrace plea in abatement. 15 Neb. 212. New trial granted under particular state of facts. 4 Neb. 111. 5 Id. 477. 7 Id. 288. 8 Id. 389. 9 Id. 395, 526. 10 Id. 452. 12 Id. 116. 6 Id. 309. 15 Id. 47, 331. Granted when jury disregard instructions or evidence. 2 Neb. 342. 12 Id. 599. Not granted on ground on newly discovered evidence on facts stated. 3 Neb. 165. 8 Id. 389. 13 Id. 397, 438. Or when such evidence is merely cumulative. 7 Neb. 224. 14 Id. 389. 15 Id. 222. 16 Id. 510. Not granted for admission of immaterial evidence. 9 Neb. 181. Or illegal testimony. 7 Neb. 353. Or overruling motion for re-taxation of costs. 14 Neb. 475. Nor while verdict remains in force.. 15 Neb. 42. Not granted in cases stated. 7 Neb. 58. 6 Id. 490. 4 Id. 581. 12 ld. 6, 492. 13 Id. 395. 14 Id. 192, 581. Motion for new trial necessary and errors specifically pointed out, assignments being definite. 1 Neb. 398. 3 Id. 117. 5 Id. 356. 8 Id. 387. 13 Id. 68. General assignment sufficient when errors appear from record. 8 Neb. 388. Where motion is made for reasons which would not otherwise be apparent from the record, they should be incorporated in a bill of exceptions. 15 Neb. 226. Motion must include objection to evidence. 13 Neb. 491.

SEC. 315. Cited 1 Neb. 168.

SEC. 316. Motion filled out of term of no avail. 3 Neb. 446. 6 Neb. 532. Mere neglect not same as “unavoidably prevented." 15 Neb. 621.

SEC. 317. Instructions not considered under general assignment. 15 Neb. 23, 129. Motion indivisible and when made by two parties if it cannot be allowed as to both it will be overruled as to both. 15 Neb. 423. 16 Id. 30. Motion not necessary to obtain review of equity case on appeal. 12 Neb. 211. Nor in a cause taken on error from justice of the peace to district court. 9 Neb. 504. Nor where no trial has been had, where court has merely construed pleadings. 13 Neb. 256. Or to obtain review of ruling on plea in abatement. 15 Neb. 212.

by affidavits showing their truth, and may be controverted by affidavits. [Amended Mar. 1. Took effect June 1, 1881. Laws p. 201.]

SEC. 318. [Newly discovered grounds.]—Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was rendered or made, the application may be made by petition filed as in other cases; on which a summons shall issue, be returnable and served, or publication made, as prescribed in section seventy-nine. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases, but no such petition shall be filed more than one year after the final judgment was rendered.


SEC. 319. [Rate of damages.]-Whenever damages are recoverable, the plaintiff may claim and recover any rate of damages to which he may be entitled for the cause of action established:

SEC. 320. [Provisions applicable-Trial by court or jury.]—The provisions of this title respecting trials by jury, apply, so far as they are in their nature applicable, to trials by the court.


SEC. 321. [Clerk's books.]-The clerk of the district court shall keep at least eight books, to be called the appearance docket, the trial docket, the journal, the complete record, the execution docket, the fee book, the general index, and the judgment record. [Amended to take effect Sept. 1, 1873. G. S. 579, 713.]

SEC. 322. [Same-Entries.]-On the appearance docket, he shall enter all actions in the order in which they were brought, the date of the summons, the time of the return thereof by the officer, and his return thereon, the time of filing the petition, and all subsequent pleadings. On the general index he shall enter the names of the parties to every suit, both direct and inverse, with the page and book where all proceedings in such action may be found. The judgment record shall contain the judgment debtor and the judgment creditor, arranged alphabetically, the date of the judgment, the amount of the same, and the amount of costs, with the page and book where the same may be found. Transcripts of judgments from justices of the peace, or courts of probate, filed in the district court shall be entered upon said judgment record; and whenever any judgment is paid off and discharged, the clerk shall enter such fact upon the judgment record in a column provided for that purpose. [Id.]

SEC. 323. [Trial docket-Judgment by default-Frivolous demurrer. The trial docket shall be made out by the clerk of the court at least twelve days before the first day of each term of the court; and the actions shall be set for particular days in the order in which the issues were made up, whether of law or of fact, and so arranged that the cases set for each day shall be tried as nearly as may be on that day. For the purpose of arranging said docket, an issue shall be considered as made up when either party is in default of a pleading. If the defendant fails to answer or demur, the cause, for the purpose of this section shall be deemed to be at issue upon questions of fact, but in every such case the plaintiff may move for and take such judgment as he is entitled to, on the defendant's default, on or after the day on which said action shall be set for trial. No witnesses shall be subpoenaed in any case while the cause stands upon issue of law; and whenever the court shall regard the demurrer in any case as frivolous,

SEC. 318. Allegations must be affirmatively stated. 7 Neb. 189.

SEC. 322. Judgment is not a lien until properly indexed, 7 Neb. 171. Liiablity of clerk for neglect in not entering transcript properly. 10 Neb. 524.

and put in for delay only, no leave to answer or reply shall be given, unless upon payment of all costs then accrued in the action. [Id.]

SEC. 324. [Cases tried in order.]-The trial of an issue of fact, and the assessment of damages in any case, shall be in the order in which they are placed on the trial docket, unless, by consent of the parties, or the order of the court, they are continued, or placed at the heel of the docket. The time of hearing all other cases shall be in order in which they are placed on the docket, unless the court in its discretion shall otherwise direct. The court may in its discretion hear at any time a motion; and may by rule prescribe the time for hearing motions. SECS. 325-326. [Repealed. Laws of 1867, twelfth session territory, page 7.]

SEC. 327. [Bar docket.]-The clerk shall make out a copy of the trial docket for the use of the bar before the first day of the term of court.

SEC. 327 a. [Same Printed.]-SEC. 1. That the trial docket provided for in section 327, of the code of civil procedure, shall be printed when the judge shall deem the same advisable, and shall so order, and the cost of the said printing shall be audited and paid by the respective counties as in other cases. [1875, 59.]



SEC. 328. [Witnesses-Competent-Incompetent.]-Every human being of sufficient capacity to understand the obligation of an oath, is a competent witness in all cases civil and criminal, except as otherwise herein declared. The following persons shall be incompetent to testify: First. Persons of unsound mind at the time of their production. Second. Indians and negroes who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them intelligently and truly. Third. Husband and wife, concerning any communication made by one to the other during marriage, whether called as a witness while that relation subsists or afterward. Fourth. An attorney, concerning any communication made to him by his client in that relation or his advice thereon, without the client's consent in open court or in writing produced in court. Fifth. A clergyman or priest, concerning any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs, without the consent of the person making the confession.

SEC. 329. [Same.]-No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, unless the evidence of the deceased person shall have been taken and read in evidence by the adverse party in regard to such transaction or conversation, or unless such representative shall have introduced a witness who shall have testified in regard to such transaction or conversation, in which case the person having such direct legal interest may be examined in regard to the facts testified to by such

SEC. 328. Witness must understand obligation of oath. 10 Neb. 399. Intoxication of, may be shown. 1 Nob. 396. "Impressions" and "understanding" not evidence. 4 Neb. 183, 391. 5 Id. 324. 7 Id. 74. 10 Id. 275. 9 Id. 180. Credibility rests with jury. 5 Neb. 219. 6 Id. 400, 490. 7 Id. 309. 13 Id. 412, 423. 16 Id. 10. Witness may express his "recollection." 10 Neb. 170. Impeaching witness. 2 Neb. 348, 359. 6 Id. 316. 9 Id. 457. 15 Id. 573. Examination. 3 Neb. 130. 11 Id. 26. Cross-examination. 5 Neb. 183. 7 Id. 87, 341. 10 Id. 388. 13 Id. 405. 14 Id. 5. 15 Id. 26. 16 Id. 318, 499, 559. Exception to cross-examination waived by party proceeding to re-examine on same matter. 8 Neb. 158. A party who, on cross-examination of a witness asks him an immaterial question, is concluded by his answer and cannot call another witness to impeach him. 15 Neb. 234. Opinion of witness not evidence. 6 Neb. 11. 13 Id. 336, 346, 362, 485. 14 Id. 471. 15 Id. 233. Expert witnesses. 14 Neb. 408. 16 Id. 579. 13 Id. 488.

SEC. 329. One having direct legal interest in result of cause where adverse party is "representative" of deceased person, incompetent; liability for costs is such interest. 13 Neb. 77. Word "representative," defined. 3 Neb. 150. One precluded from so testifying cannot be rendered competent by transfer of his interest during pendancy of action. 13 Neb. 249. Mortgagee not competent. 13 Neb. 300. Husband competent in suit by 9 Neb. 401. Provision of statute may be waived; presumption that objection was waived. 15

Neb. 595.

deceased person or such witness, but shall not be permitted to further testify in regard to such transaction or conversation. [Amended 1883, chap. LXXXIII.]

SEC. 330. [Credibility.]-Facts which have heretofore caused the exclusion of testimony, may still be shown for the purpose of lessening its credibility.

SEC. 331. [Husband and wife.]-The husband can in no case be a witness against the wife, nor the wife against the husband, except in a criminal proceeding for a crime committed by the one against the other, but they may in all criminal prosecutions be witnesses for each other.

SEC. 332. [Same.]-Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal, in testimony, any such communication made while the marriage subsisted.

SEC. 333. [Professional communications.] - No practicing attorney, counsellor, physician, surgeon, minister of the gospel, or priest of any denomination shall be allowed, in giving testimony, to disclose any confidential communication, properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline.

SEC. 334. [Same-Waiver.]—The prohibitions in the preceding sections do not apply to cases where the party in whose favor the respective provisions are enacted waives the rights thereby conferred.

SEC. 335. [Public officers.]-A public officer cannot be examined as to communications made to him in official confidence, when the public interests. would suffer by the disclosure.

SEC. 336. [Civil liability.]-A witness is not excused from answering a question upon the mere ground that he would be thereby subjected to a civil liability.

SEC. 337. [Criminal liability-Disgrace.]-But when the matter sought to be elicited would tend to render him criminally liable, or to expose him to public ignominy, he is not compelled to answer, except as provided in the next section.

SEC. 338. [Previous conviction, how proved.]-A witness may be interrogated as to his previous conviction for a felony. But no other proof of such conviction is competent except the record thereof.

SEC. 339. [Whole matter given.-When part of an act, declaration, conversation, or writing, is given in evidence by one party, the whole on the same subject may be inquired into by the other; thus when a letter is read, all other letters on the same subject between the parties may be given. And when a detached act, declaration, conversation or writing, is given in evidence, any other act, declaration or writing, which is necessary to make it fully understood, or to explain the same, may also be given in evidence.

SEC. 340. [Writing controls printed matter.]-When an instrument consists partly of written and partly of printed form, the former controls the latter, where the two are inconsistent.

SEC. 341. [Construction of agreements.]-When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it.

SEC. 342. [Works of science and art.]-Historical works, books of science or art, and published maps or charts, when made by persons indifferent between the parties, are presumptive evidence of facts of general notoriety or interest.

SEC. 343. [Subscribing witness absent-Proof of execution.]When a subscribing witness is absent from the county in which the action is pend

SEC. 330. 16 Neb. 361. SEC. 338. 16 Neb. 360.
SEC. 342. Cited 16 Neb. 587.

ing, denies, or does not recollect the execution of the instrument to which his name is subscribed as such witness, its execution may be proved by other evidence. [R. S. 451. Amended to take effect Feb. 18, 1873. G. S. 583.]

SEC. 344. [Handwriting.]-Evidence respecting handwriting may be given by comparisons made, by experts or by the jury, with writings of the same person which are proved to be genuine.

SEC. 345. [Writings of deceased persons.]-The entries and other writings of a person deceased, made at or near the time of the transaction, and in a position to know the facts therein stated, are presumptive evidence of such facts, when the entry was made against the interest of the person so making it or when made in a professional capacity or in the ordinary course of professional conduct, or when made in the performance of a duty specially enjoined by law.

SEC. 346. [Books of account.-Books of account, containing charges by one party against the other, made in the ordinary course of business, are receivable in evidence only under the following circumstances, subject to all just exceptions as to their credibility: First. The books must show a continuous dealing with persons generally, or several items of charges at different times against the other party, in the same book. Second. It must be shown, by the party's oath, or otherwise, that they are his books of original entries. Third. It must be shown, in like manner, that the charges were made at or near the time of the transaction therein entered, unless satisfactory reasons appear for not making such proof. Fourth. The charges must also be verified by the party or the clerk who made the entries, to the effect that they believe them just and true, or a sufficient reason must be given why the verification is not made.

SEC. 347. [Private writing.]-Every private writing, except a last will and testament, after being acknowledged or proved and certified in the manner prescribed for the proof or acknowledgment of conveyances of real property, may be read in evidence without further proof.

SEC.348. [Judges.]—The judge of the court is a competent witness for either party, and may be sworn upon the trial. But in such case it is in his discretion to order the trial to be postponed or suspended, and to take place before another judge.

SEC. 349. [Notarial protest.]-The usual protest by a notary public, with'out proof of his signature or notarial seal, is evidence of the dishonor and notice of a bill of exchange or promissory note.


SEC. 350. [Subpœna-Service.]-The clerks of the several courts and judges of the probate courts shall, on application of any person having a cause or any matter pending in court, issue a subpoena for witnesses under the seal of the court, inserting all the names required by the applicant in one subpoena, which may be served by any person not interested in the action, or by the sheriff, coroner, or constable; but when served by any person other than a public officer, proof of service shall be shown by affidavit; but no costs of serving the same shall be allowed, except when served by an officer.

SEC. 351. [Same-Contents.]-The subpoena shall be directed to the person therein named, requiring him to attend at a particular time and place, to testify as a witness; and it may contain a clause, directing a witness to bring with him any book, writing, or other thing under his control, which he is bound by law to produce as evidence.

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