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SEC. 352. [Same-To give deposition.]-When the attendance of a witness before any officer authorized to take depositions is required, the subpœna shall be issued by such officer.
SEC. 353. [Same-How served.]-The subpoena shall be served either by reading or by copy delivered to the witness or left at his usual place of residence; but such copy need not contain the name of any other witness.
SEC. 354. [Witness-Obligation to attend trial.]-A witness shall not be obliged to attend for examination on the trial of a civil action, except in the county of his residence, nor to attend to give his deposition out of the county where he resides, or where he may be when the subpoena is served upon him.
SEC. 355. [Same-Demand of fees.]-A witness may demand his traveling fees, and fee for one days attendance, when the subpoena is served upon him, and if the same be not paid, the witness shall not be obliged to obey the subpoena. The fact of such demand and non-payment shall be stated in the return.
SEC. 356. [Same-Contempt.]-Disobedience of a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe a deposition, when lawfully ordered, may be punished as a contempt of the court or officer by whom his attendance or testimony is required.
SEC. 357. [Same Attachment for contempt.]-When a witness fails to attend in obedience to a subpoena, (except in case of a demand and failure to pay his fees), the court or officer before whom his attendance is required, may issue an attachment to the sheriff, coroner, or constable of the county, commanding him to arrest and bring the person therein named before the court or officer, at a time and place to be fixed in the attachment, to give his testimony, and answer for the contempt. If the attachment be not for immediately bringing the witness before the court or officer, a sum may be fixed in which the witness may give an undertaking with surety for his appearance. Such sum shall be endorsed on the back of the attachment, and if no sun is so fixed and endorsed, it shall be one hundred dollars. If the witness be not personally served, the court may, by a rule, order him to show cause why an attachment should not issue against him. SEC. 358. [Same Punishment.] The punishment for the contempt mentioned in section three hundred and fifty-six, shall be as follows: When the witness fails to attend in obedience to the subpoena, (except in case of a demand and failure to pay his fees), the court or officer may fine the witness in a sum not exceeding fifty dollars. In other cases, the court or officer may fine the witness in a sum not exceeding fifty dollars nor less than five dollars, or may imprison him in the county jail, there to remain until he shall submit to be sworn, to testify, or give his deposition. The fine imposed by the court shall be paid into the county treasury, and that imposed by the officer shall be for the use of the party for whom the witness was subpoenaed. The witness shall also be liable to the party injured, for any damages occasioned by his failure to attend, or his refusal to be sworn, to testify, or give his deposition.
SEC. 359. [SameImprisonment Release.]—A witness so imprisoned by an officer before whom his deposition is being taken, may apply to a judge of the supreme court, district court, or probate court, who shall have power to discharge him if it appear that his imprisonment is illegal.
SEC. 360. attachment for the arrest, or order of commitment to prison of a witness by a court or officer, pursuant to this chapter, must be under the seal of the court or officer, if he have an official seal, and must specify particularly the cause of the arrest or commitment; and if the commitment be for refusing to answer a question, such question must be stated in the order. Such order of commitment may be directed to the sheriff, coroner or any constable of the county where such witness resides or may be at the time, and shall be executed by committing him to the jail of such county, and delivering a copy of the order to the jailer.
SEC. 361. [Prisoners-Examination.]—A person confined in any prison in this state, may, by order of any court of record, be required to be produced for oral examination in the county where he is imprisoned; but in all other cases his examination must be by deposition.
SEC. 362. [Same-Deposition.]-While a prisoner's deposition is being taken, he shall remain in custody of the officer having him in charge, who shall afford reasonable facilities for the taking of the deposition.
SEC. 363. [Witness exempt from service of process.]-A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county, while going, returning or attending in obedience to a subpoena.
SEC. 364. [Witness-Attendance-Fees.] — At the commencement of each day after the first day, a witness may demand his fees for that day's attendance in obedience to a subpoena, and if the same be not paid he shall not be required to remain.
SEC. 365. [Same Oath.]-Before testifying, the witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. The mode of administering an oath shall be such as is most binding upon the conscience of the witness.
MODE OF TAKING THE TESTIMONY OF WITNESSES.
SEC. 366. [Modes of taking testimony.]--The testimony of witnesses may be taken in three modes: First. By affidavit. Second. By deposition. Third. By oral examination.
SEC. 367. [Affidavit.]--An affidavit is a written declaration under oath, made without notice to the adverse party.
SEC. 368. [Deposition.]-A deposition is a written declaration under oath, made upon notice to the adverse party for the purpose of enabling him to attend and cross-examine; or upon written interrogatories.
SEC. 369. [Oral examination.]-An oral examination is an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness.
SEC. 370. [Affidavit, when used.]---An affidavit may be used to verify a pleading, to prove the service of a summons, notice or other process, in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion, and in any other case permitted by law.
SEC. 371. [Same-Before whom taken.]—An affidavit may be made in and out of this state, before any person authorized to take depositions, and must be authenticated in the same way, except as provided in section one hundred and eighteen.
SEC. 372. [When used.]-The deposition of any witness may be used only in the following cases: First. When the witness does not reside in the county where the action or proceeding is pending, or is sent for trial by change of venue, or is absent therefrom. Second. When, from age, infirmity, or imprisonment, the witness is unable to attend the court, or is dead. Third. When the testimony is required upon a motion, or in any other case where the oral examination of a witness is not required.
SEC. 373. [When taken.]-Either party may commence taking testimony by depositions, at any time after service upon the defendant.
SEC. 374. [Before, whom taken, within state.]-Depositions may be
SEC. 367. Should show jurisdiction of officer. 7 Neb. 152.
SEO. 371. Affidavit taken before an attorney not good. 16 Neb. 53.
taken in this state before a judge or clerk of the supreme or district court, or before a probate judge, justice of the peace, notary public, mayor, or chief magistrate of any city or town corporate, or before a master commissioner, or any person empowered by a special commission; but depositions taken in this state, to be used therein, must be taken by an officer or person whose authority is derived within the state.
SEC. 375. [Same-Without state.]-Depositions may be taken out of the state by a judge, justice, or chancellor of any court of record, a justice of the peace, notary public, mayor, or chief magistrate of any city or town corporate, a commissioner appointed by the governor of this state to take depositions, or any person authorized by a special commission from this state.
[Same-Relative-Attorney.]-The officer before whom depositions are taken, must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding.
SEC. 377. [Dedimus potestatum.]-Any court of record of this state, or any judge thereof, is authorized to grant a commission to take depositions within or without the state. The commission must be issued to a person or persons therein named, by the clerk, under the seal of the court granting the same, and depositions under it must be taken upon written interrogatories, unless the parties otherwise agree.
SEC. 378. [Same-Notice Service.]-Prior to the taking of any deposition, unless taken under a special commission, a written notice specifying the action or proceeding, the name of the court or tribunal in which it is to be used, and the time and place of taking the same, shall be served upon the adverse party, his agent or attorney of record, or left at his usual place of abode. The notice shall be served so as to allow the adverse party sufficient time by the usual route of travel to attend, and one day for preparation, exclusive of Sundays, and the day of service; and the examination may, if so stated in the notice, be adjourned from day to day. The notice shall also specify the names of the witnesses to be examined. And when the place of taking the deposition shall be out of the state, or more than fifty miles from the place of trial of the action, the adverse party, within forty-eight hours after the service of the notice, may serve upon the party taking the deposition, his agent or attorney of record, written cross interrogatories to be propounded to any witness, and such last-named party shall cause them to be transmitted to the officer before whom the deposition is taken, who shall propound them to the witness, and they shall be answered subject to objections, as in other cases. [Amended 1875, 37. Took effect Mar. 1, 1875.]
SEC. 379. [Same-Notice to non-resident.]-When the party against whom the deposition is to be read, is absent from, or a non-resident of the state, and has no agent or attorney of record therein, he may be notified of the taking of the deposition by publication. The publication must be made three consecutive weeks, in some newspaper printed in the county where the action or proceeding is pending, if there be any printed in such county, and if not, in some newspaper printed in this state, of general circulation in that county. The publication must contain all that is required in a written notice, and may be proved in the manner prescribed in section eighty.
SEC. 380. [By whom written.]-The deposition shall be written in the presence of the officer taking the same, either by the officer, the witness, or some disinterested person, and subscribed by the witness.
SEC. 881. [Sealed-Transmitted to clerk.]--The deposition so taken shall be sealed up and endorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the court where the action or proceeding is pending. It shall remain under seal until opened by the clerk by order of the court, or at the request of a party to the action or proceeding, or his attorney.
SEC. 375. Clerk of a court out of the state cannot take depositions except authorized by special commission. 4 Neb. 368.
SEC. 378. Notice to take; service; time of taking. 15 Neb. 25.
SEC. 382. [Where used.]-Depositions taken pursuant to this article,shall be admitted in evidence on the trial of any civil action or proceeding pending before any justice of the peace, mayor, or other judicial officer of a city or town corporate, or before any arbitrators or referees, and such deposition shall be sealed up, endorsed with the title of the action or proceeding, the name of the officer taking the same, and addressed and transmitted by such officer to such justice, mayor, or other judicial officer, arbitrators or referees.
SEC. 383. [When used.]-When a deposition has once been taken, it may be read in any stage of the same action or proceeding, or in any other action or proceeding, upon the same matter between the same parties, subject, however, to all such exceptions as may be taken thereto under the provisions of this title.
SEC. 884. [Authentication.]--Depositions taken pursuant to this title, by any judicial or other officer herein authorized to take depositions, having a seal of office, whether resident in this state or elsewhere, shall be admitted in evidence upon the certificate and signature of such officer, under the seal of the court of which he is an officer, or his official seal, and no other or further act of authentication shall be required. If the officer taking the same have no official seal, the deposition, if not taken in this state, shall be certified and signed by such officer, and shall be further authenticated, either by parol proof adduced in court, or by the official certificate and seal of any secretary or other officer of state keeping the great seal thereof, or of the clerk or prothonotary of any court having a seal, attesting that such judicial or other officer was at the time of taking the same, within the meaning of this chapter, authorized to take the same. But if the deposition be taken within this state by an officer having no seal, or within or without this state under a special commission, it shall be sufficiently authenticated by the official signature of the officer or commissioner taking the same.
SEC. 385. [Certificate of officer,]-The officer taking the deposition shall annex thereto a certificate showing the following facts: First. That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth. Second. That the deposition was reduced to writing by some proper person (naming him). Third. That the deposition was written and subscribed in the presence of the officer certifying thereto. Fourth. That the deposition was taken at the time and place specified in the notice.
SEC. 386. [Not read, when witness present.]-When a deposition is offered to be read in evidence, it must appear to the satisfaction of the court, that for any cause specified in section three hundred and seventy-two, the attendance of the witness cannot be procured.
SEC. 387. [When filed.]-Every deposition intended to be read in evidence on the trial, must be filed at least one day before the day of trial.
SEC. 388. [Fees.]-The following fees shall be allowed for taking depositions in the state, viz: Swearing each witness, five cents; for each subpoena, attachment, or order of commitment, fifty cents; for each hundred words contained in such deposition and certificate, ten cents and no more; and such officer may retain the same until such fees are paid. Such officer shall also tax the costs of the sheriff or other officer who shall serve the process aforesaid, and fees of the witness, and may also, if directed by the persons entitled thereto, retain such depositions until the said fees are paid.
EXCEPTIONS TO DEPOSITIONS.
SEC. 389. [Form-Filing.]—Exceptions to depositions shall be in
SEC. 383. Adverse party appearing and cross-examining is entitled to benefit of deposition and may read from it if he chooses. 14 Neb. 190.
SEC. 384. Depositions taken in Illinois by a notary public certified to under his hand and seal are admissible. 4 Neb. 173. Certificate should show county and state or country where the same is taken, as well as the state or country from which the officer derives his official character. 8 Neb. 79.
SEC. 385. It is not necessary that certificate should show in terms that the oath was administered in or with reference to the cause. 1 Neb. 119.
SEC. 386. Although court may err in refusing to suppress deposition, yet if the moving party fail to object to its being read at the trial, he cannot complain of such error in appellate court. 4 Neb. 369.
SEC. 389. If deposition is suppressed, and no exception taken, the correctness of the ruling cannot be questioned on error in the supreme court. 7 Neb. 329.
writing, specifying the grounds of objection, and filed with the papers in the
SEC. 390. [When made.]—No exception other than for incompetency or irrelevancy shall be regarded, unless made and filed before the commencement of the trial.
SEC. 391. [When considered.]-The court shall, on motion of either party, hear and decide the questions arising on exceptions to depositions, before the commencement of the trial.
SEC. 392. [Errors waived.]-Errors of the court in its decisions upon exceptions to depositions are waived, unless excepted to.
SEC. 393. [Proof of genuineness of documents.]-Either party may exhibit to the other or his attorney, at any time before the trial, any paper or document material to the action, and request an admission in writing of genuineness. If the adverse party or his attorney fail to give the admission in writing within four days after the request, and if the party exhibiting the paper or document be afterward put to any cost or expense to prove its genuineness, and the same be finally proved or admitted on the trial, such costs and expenses, to be ascertained at the trial, shall be paid by the party refusing to make the admission, unless it shall appear to the satisfaction of the court that there were good reasons for the refusal.
SEC. 394. [Inspection of papers by adverse party.]-Either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy of a book, paper, or document in his possession or under his control, containing evidence relating to the merits of the action or defense therein. Such demand shall be in writing, specifying the book, paper, or document, with sufficient particularity to enable the other party to distinguish it, and if compliance with the demand within four days be refused, the court or judge, on motion and notice to the adverse party, may, in their discretion, order the adverse party to give the other, within a specified time, an inspection and copy, or permission to take a copy, of such book, paper, or document; and on failure to comply with such order, the court may exclude the paper or document from being given in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party by affidavit alleges it to be. This section is not to be construed to prevent a party from compelling another to produce any book, paper, or document when he is examined as a witness.
SEC. 395. [Copy of writing of adverse party.]-Either party or his actorney, if required, shall deliver to the other party or his attorney, a copy of any deed, instrument, or other writing, whereon the action or defense is founded, or which he intends to offer in evidence at the trial. If the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence, at the trial, the original, of which a copy has been refused. This section shall not apply to any paper a copy of which is filed with a pleading.
SEC. 396. [Laws of other states-Printed copies.]-Printed copies in volumes of statutes, code, or other written law, enacted by any other territory, state, or foreign government, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts or tribunals of such territory, state or government, shall be admitted by the courts and officers of this state on all occasions, as presumptive evidence of such laws. The unwritten or common law of any other territory, state, or foreign government, may be proved as facts by parol evidence; and the books of reports of cases adjudged in their courts may also be admitted as presumptive evidence of such law.
SEC. 397. [Concealment of witness-Power of officer.--If a witness
SEC. 390. 13 Neb. 47. SEC. 394. 5 Neb. 519.