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conceal himself, or in any other manner attempt to avoid being personally served with a subpoena, any sheriff or constable, having the subpoena, may use all necessary and proper means to serve the same, and for that purpose may break into any building or other place where the witness is to be found, having first made known his business and demanded admittance.
SEC. 398. [Party subpoenaed--Failing to appear.-In addition to the above remedies, if a party to a suit in his own right, on being duly subpoenaed, fail to appear and give testimony, the other party may, at his option, have a continuance of the cause as in cases of other witnesses, and at the cost of the delinquent.
SEC. 399. [Papers produced by rule of court.]--The supreme or district court may, by rule, require the production of any papers or books which are material to the just determination of any cause pending before it, for the purpose of being inspected and copied by or for the party thus calling for them.
SEC. 400. [Same-Petition for.]-The petition for that purpose must state the facts expected to be proved by such books or papers, and that as the petitioner believes, such books and papers are under the control of the party against whom the rule is sought, and must show wherein they are material. The rule shall thereupon be granted to produce the book and papers, or show cause to the contrary, if the court deem such rule expedient and proper.
SEC. 401. [Same-Failure to obey rule.-On failing to obey the rule or show sufficient cause for such failure, the same consequences shall ensue as if the party had failed to appear and testify, when subpoenaed by the party now calling for the books and papers.
SEC. 402. [Writing called for--When used.]-Though a writing called for by one party is by the other produced, the party thus calling for it, is not obliged to use it as evidence in the case.
SEC. 403. [Proof of publication.]-Publications required by law to be made in a newspaper, may be proved by affidavit of any person having knowledge of the fact, specifying the time when and the paper in which the publication was made, but such affidavit must, for the purposes now contemplated, be made within six months after the last day of publication.
SEC. 404. [Proof of service.]-The_posting up or service of any notice or other paper required by law, may be proved by the affidavit of any competent witness, attached to a copy of said notice or paper, and made within six months of the time of such posting up.
SEC. 405. [Proof by affidavit.]-Any other fact which is required to be shown by affidavit, and which may be required for future use in any action or other proceeding, may be proved by pursuing the course above indicated, as nearly as the circumstances of the case will admit.
SEC. 406. [Same-Perpetuation.]-Such proof so made may be perpetuated and preserved for future use by filing the papers above mentioned in the office of the judge of probate, and the original affidavit appended to the notice or paper, if there be one, and if not the affidavit by itself is presumptive evidence of the facts stated therein, but does not preclude other modes of proof now held sufficient.
SEC. 407. [Field notes or plat of.county surveyor.]—A copy of the field notes of any county surveyor, or a plat made by him, and certified under oath as correct, may be received as evidence to show the shape or dimensions of a tract of land, or any other fact whose ascertainment requires only the exercise of scientific skill or calculation.
SEC. 408. [Certified copies of records.]-Duly certified copies of all records and entries or papers belonging to any public office, or by authority of law filed to be kept therein, shall be evidence in all cases of equal credibility with the original records or papers so filed.
SEC. 403. Cited 10 Neb. 77.
SEC. 408. This does not prevent the oral testimony of a witness who saw entries of a public record made. 7 Neb. 337. See also 16 Neb. 452.
SEC. 409. [Same-How obtained.)-Every officer having the custody of a public record or writing, is bound to give any person on demand a certified copy thereof, on payment of the legal fees therefor.
SEC. 410. [Lost official papers Certificate.-The certificate of a public officer that he has made diligent and ineffectual search for a paper in his office is of the same efficacy in all cases as if such officer had personally appeared and sworn to such facts.
SEC. 411. [Land office receipts.]-The usual duplicate receipt of the receiver of any land office, or, if that be lost or destroyed, or beyond the reach of the party, the certificate of such receiver, that the books of his office show the sale of a tract of land to a certain individual, is proof of title equivalent to a patent against all but the holder of an actual patent.
SEC. 412. [Official signatures-Genuineness.]-In the cases contem. plated in the last three sections, the signature of the officer shall be presumed to be genuine until the contrary is shown.
SEC. 413. [Proof of judicial records.]-A judicial record of this state, or of any other federal court of the United States, may be proved by the producing of the original, or by a copy thereof, certified by the clerk or the person having the legal custody thereof, authenticated by his seal of office, if he have one.
SEC. 414. [Same-Of other states.]-That of a sister state may be proved by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of a judge, chief justice, or presiding magistrate, that the attestation is in due form of law.
SEC. 415. [Same-Justices of the peace.]-The official certificate of a justice of the peace of any of the United States, to any judgment, and the preliminary proceeding before him, supported by the official certificate of the clerk of any court of record within the county in which such justice resides, stating that he is an acting justice of the peace of that county, and that the signature of his certificate is genuine, is sufficient evidence of such proceedings and judgment. SEC. 416. [Same-Foreign countries.]-Copies of records and proceedings in the courts of a foreign country may be admitted in evidence, upon being authenticated as follows: First. By the official attestation of the clerk or officer in whose custody such records are legally kept. Second. By the certificate of one of the judges or magistrates of such court, that the person so attesting is the clerk or officer legally entrusted with the custody of such records, and that the signature to his attestation is genuine. Third. By the official certificate of the officer who has the custody of the principal seal of the government under whose authority the court is held, attested by said seal, stating that such court is duly constituted, specifying the general nature of its jurisdiction, and verifying the seal of the court.
SEC. 417. [Acts of executives.]-Acts of the executive of the United States, or of this state, or of any state in the union, or of a foreign government are proved by the records of the state department of the respective governments, or by public documents purporting to have been printed by order of the legislature of those governments respectively, or by either branch thereof.
SEC. 418. [Legislative proceedings. The proceedings of the legislature of this state, or any state of the union, or of the United States, or of any foreign government are proved by the journals of those bodies, respectively, or of either branch thereof, and either by copies officially certified by the clerk of the house in which the proceedings were had, or by a copy purporting to have been printed by their order.
SEC. 419. [Statute law-Printed copies.]-Printed copies of the statute laws of this state, or any of the United States, or of congress, or of any foreign gov
16 Neb. 452.
SEC. 410. 6 Neb. 32. 7 Id. 468. 14 Id. 438.
SEC. 411. 2 Neb. 108, 453. 12 Id. 240.
ernment, purporting or proved to have been published under the authority thereof, or proved to be commonly admitted as evidence of the existing laws in the courts of such state or government, shall be admitted in the courts of this state as presumptive evidence of such law.
SEC. 420. [Same-Public seal—Unwritten law. The public seal of the state or county affixed to a copy of a written law or other public writing, is also admissible as evidence of such law or writing respectively; the unwritten law of any other state or government may be proved as fact by parol evidence, and also by the books of reports of cases adjudged in their courts.
PROCEEDINGS TO PERPETUATE TESTIMONY.
SEO. 421. [Petition.]-The testimony of a witness may be perpetuated in the following manner: The applicant shall file in the office of the clerk of the district court, a petition, to be verified, in which shall be set forth, specially, the subject matter relative to which testimony is to be taken, and the names of the persons interested, if known to the applicant; and if not known, such general description as he can give of such persons as heirs, devisees, alienees, or otherwise. The petition shall also state the names of the witnesses to be examined, and the interrogatories to be propounded to each; that the applicant expects to be a party to an action in a court of this state, in which such testimony will, as he believes, be material; and the obstacles preventing the immediate commencement of the action, where the applicant expects to be plaintiff.
SEC. 422. [Order for examination.]-The court, or judge thereof, may forthwith make an order allowing the examination of such witnesses. The order shall prescribe the time and place of the examination, how long the parties interested shall be notified thereof, and the manner in which they shall be notified.
SEC. 423. [Cross-interrogatories.]—When it appears satisfactorily to the court or judge that the parties interested cannot be personally notified, such court or judge shall appoint a competent attorney to examine the petition and prepare and file cross-interrogatories to those contained therein.
SEC. 424. [Examination-Attorney's fee.]--The witnesses shall be examined upon the interrogatories of the applicant, and upon cross-interrogatories, where they are required to be prepared, and no others shall be propounded to them; nor shall any statement be received which is not responsive to some one of them. The attorney filing the cross-interrogatories shall be allowed a reasonable fee therefor, to be taxed in the bill of costs.
SEC. 425. [Same-Before whom taken-Preservation.]-Such depositions shall be taken before some one authorized by law to take depositions, or before some one specially authorized by the court or judge, and shall be returned to the clerk's office of the court in which the petition was filed.
SEC. 426. [Same-Approval-Effect.]--The court or judge, if satisfied that the depositions have been properly taken, and as herein required, shall approve the same and order them to be filed; and if a trial be had between the parties named in the petition, or their privies or successors in interest, such depositions, or certified copies thereof, may be given in evidence by either party, where the witnesses are dead, or insane, or where their attendance for oral examination cannot be obtained or required; but such depositions shall be subject to the same objections for irrelevancy and incompetency as may be made to depositions taken pending an action.
SEC. 427. [Costs.]-The applicant shall pay the costs of all proceedings under this chapter.
JUDGMENT IN GENERAL.
SEC. 428. [Defined.]—A judgment is the final determination of the rights of the parties in an action.
SEC. 428. In a county court a "judgment decreed in favor of plaintiff in sum of
SEC. 429. [Against whom given.]-Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action. to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served.
SEC. 429 a. [Transcripts from other counties-Effect-LienExecution.]-SEC. 1. That the transcript of a judgment of any district court in this state, may be filed in the office of the clerk of the district court in any county, and such transcript shall be a lien on the property of the debtor in any county in which such transcript is filed, in like manner as in the county where such judgment was rendered, and execution may be issued on judgment obtained by such transcript, as on the original judgment; Provided, That such transcript shall at all times be effected and be in the same plight as the original judgment. [1869, 158, G. S. 712.]
SEC. 429 b. [Decree for conveyance-Effect.]-SEC. 1. When any judgment or decree shall be rendered for a conveyance, release or acquittance, in any court of this state, and the party or parties against whom the judgment or decree shall be rendered, do not comply therewith within the time mentioned in said judgment or decree, such judgment or decree shall have the same operation and effect, and be as available as if the conveyance, release, or acquittance had been executed conformable to such judgment or decree. [1869, 70. G. S. 711.] SEC. 430. [Action dismissed without prejudice.-An action may be dismissed without prejudice to a future action. First. By the plaintiff, before the final submission of the case to the jury, or to the court, where the trial is by the court. Second. By the court, where the plaintiff fails to appear on the trial. Third. By the court, for want of necessary parties. Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence. Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases, upon the trial of the action, the decision must be upon the merits.
SEC. 430 a. [Plaintiff may dismiss in vacation.]-SEC. 1. That the party, plaintiff, in any case pending in the district or supreme court of the state, shall, when no counter-claim or set-off has been filed by the opposite party, have the right in the vacation of any of said courts to dismiss his said action without prejudice, upon payment of costs, which said dismissal shall be, by the clerk of
held good. 7 Neb. 479. See also 8 Neb. 467, 10 Id. 24. 14 Id. 8, 377. 16 Id. 72. Judgment conclusive. 1 Neb. 445. 6 Id. 461. 10 Neb. 578. 12 Id. 565. 13 Id. 537. 16 Íd. 217. But only as to matters in issue. 11 Neb. 402. Judgment of non suit not conclusive. 14 Neb. 418. Judgment must conform to pleadings. 12 Neb. 373. And to finding. 8 Neb. 168. 10 Id. 226. But want of finding not fatal. 9 Neb. 278. 12 Id. 378. Should not be entered without pleadings. 11 Neb. 471. Effect of ordering judgment on pleadings. 2 Neb. 266. Not conclusive that no proof was taken. 2 Neb. 314. Want of jurisdiction fatal. 1 Ñeb. 446. 13 Id. 537. Default should be entered before judgment. 8 Neb. 168. [See 9 Neb. 61.]
SEC. 429. Several judgments may be recovered against several wrongdoers, although but one satisfaction can be had. 1 Neb. 127. [And see 10 Íd. 532.] If suit be brought against three parties jointly and severally liable, judgment may be had against those served. 1 Neb. 460. Rule as to judgment non obstante verdicto. 6 Neb. 305. [And see 16 Neb. 473.] Judgment may be void as to one defendant but good as to another. 6 Neb. 410. Judgment entered in state court, upon debt accrued before institution of bankruptcy proceedings, prior to decree in bankruptcy, the certificate of discharge is a bar to further proceedings on the judgment. 6 Neb. 451. The journal entry is indisputable evidence of what judgment is. 9 Neb. 76. The bringing of a cause into the supreme court does not oust the district court of jurisdiction to modify its judgment during the same term at which it was rendered, pending the action in error in the supreme court. 9 Neb. 218. Presumptions are in favor of the correctness of judgments. 4 Neb. 415. 10 Neb. 185. Judgment in excess of that properly recoverable, where there are no other errors in record. plaintiffs may remit excess. 14 Neb. 163. Judgment of non suit. 4 Neb. 450, 9 Id. 417. 11 Id. 192, 12 Id. 80, 594. 13 Id. 37. 15 Id. 35, 584.
SEC. 429 a. 16 Neb. 72. SEC. 430. 15 Neb. 584.
any of said courts, entered upon the journals and take effect from and after the date thereof. [1867, 51.]
SEC. 431. [Action dismissed when set-off or counter-claim pleaded.In any case where a set-off or counter-claim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed the action or failed to appear.
SEC. 432. [On failure to answer.]-If the taking of an account, or the proof of a fact, or the assessment of damages, be necessary to enable the court to pronounce judgment upon a failure to answer, or after a decision of an issue of law, the court may, with the assent of the party not in default, take the account, hear the proof, or assess the damages; or may, with the like assent, refer the same to a referee, master, or commissioner, or may direct the same to be ascertained or assessed by a jury. If a jury be ordered, it shall be on or after the day on which the action is set for trial.
SEC. 433. By confession.]-Any person indebted, or against whom a cause of action exists, may personally appear, in a court of competent jurisdiction, and, with the assent of the creditor, or person having such cause of action, confess judgment therefor, whereupon judgment shall be entered accordingly.
SEC. 434. [Same-Cause of action stated.]--The debt or cause of action shall be briefly stated in the judgment, or in a writing to be filed as pleadings in other actions.
SEC. 435. [Same-Effect.]--Such judgment shall authorize the same proceedings for its enforcement as judgments rendered in actions regularly brought and prosecuted; and the confession shall operate as a release of errors.
SEC. 436. [Same-By attorney.]-Every attorney who shall confess judgment in any case, shall, at the time of making such confession, produce the warrant of attorney for making the same, to the court before which he makes the confession, and the original, or a copy of the warrant shall be filed with the clerk of the court in which the judgment shall be entered.
SEC. 437. [Same-By person in custody.]-If any person be in custody in a civil action, at the suit of another, no warrant of attorney executed by the person in custody, to confess judgment in favor of the person at whose suit he is in custody, shall be of any force, unless some attorney expressly named by the person in custody be present, and sign the warrant of attorney as a witness.
MANNER OF GIVING AND ENTERING JUDGMENT.
SEC. 438. [Upon general verdict.]-When a trial by jury has been nad, judgment must be rendered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration.
SEC. 439. [Upon special finding-Reserved case.]-Where the verdict is special, or where there has been a special finding on particular questions of fact, or where the court has ordered the case to be reserved, it shall order what judgment shall be entered.
SEC. 440. [Upon pleadings.]—Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict. has been found against such party.
SEC. 441. [Upon set-off-Counter claim.]-If a counter-claim or setoff established at the trial, exceeds the plaintiff's claim so established, judgment for the defendant must be given for the excess; or, if it appear that the defendant is entitled to any affirmative relief, judgment shall be given therefor.
SEC. 442. [Infant's rights, reserved.]-It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it after his attaining full age; but in any case in which, but for this section, such reservation would have been proper, the infant, within one year after arriving at the age of twenty-one years, may show cause against such order or judgment.
SEC. 432. See section 896. 11 Neb. 398. SEC. 440. See note to sec. 428. 11 Neb. 471.