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SEC. 443. [Entered on journal.-All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action.
SEC. 444. [Complete record.]-The clerk shall make a complete record of every cause as soon as it is finally determined, unless such record, or some part thereof, be duly waived.
SEC. 445. [Same-When made.]—He shall make up such record in each cause, in the vacation next after the term at which the same was determined, and the presiding judge of such court shall, at its next term thereafter, subscribe the
SEC. 446. [Same-Contents.]-The records shall be made up from the petion, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; but if the items of an account, or the copies of a paper attached to the pleadings be voluminous, the court may order the record to be made by abbreviating the same, or inserting a pertinent description thereof, or by omitting them entirely. Evidence must not be recorded.
SEC. 447. [Records signed by judge.]-When the judicial acts or other proceedings of any court have not been regularly brought up and recorded by the clerk thereof, such court shall cause the same to be made up and recorded within such time as it may direct. When they are made up, and upon examination found to be correct, the presiding judge of such court shall subscribe the
SEC. 448. [Complete record--Unnecessary when.]-No complete record shall be made: First. In criminal prosecutions where the indictment has been quashed, or where the prosecuting attorney shall have entered a nolle prosequi on the indictment. Second. In cases where an action has been dismissed without prejudice to a future action. Third. In actions in which, in open court, at the term at which the final order or judgment shall be made, both parties shall declare their agreement that no record shall be made.
SEC. 449. [Same--Action dismissed.-In cases where an action has been dismissed without prejudice to a future action, the clerk shall make a complete record of the proceedings, upon being paid for making the same by the party desiring the record to be made.
SEC. 450. [Same-Set-off-Counter-claim.-A complete record shall be made in the case mentioned in section four hundred and thirty-one, unless waived by the parties.
CONVEYANCE BY COMMISSIONERS.
SEC. 451. [Realty-When conveyed.1-Real property may be conveyed by master commissioners as hereinafter provided: First. When, by an order or judgment in an action or proceeding, a party is ordered to convey such property to another, and he shall neglect or refuse to comply with such order or judgment. Second. When specific real property is required to be sold under an order or judgment of the court.
SEC. 452. [Sheriff may act-Sales.]-A sheriff may act as a master commissioner under the second subdivision of the preceding section. Sales made under the same shall conform in all respects to the laws regulating sales of land upon execution.
SEC. 453. [Deed, how made.]-The deed of a master commissioner shall contain the like recital, and shall be executed, acknowledged and recorded as the deed of a sheriff, of real property sold under execution.
SEC. 443. 1 Neb. 326. 2 Id. 64. 9 Id. 76. 12 Id. 579.
11 Neb. 471
SEC. 446. 2 Neb. 317.
SEC. 451. See section 429 b. 14 Neb. 367.
TITLE XII.-CAUSES OF ACTION WHICH SURVIVE, AND ABATEMENT OF ACTIONS.
SEC. 454. [Causes of action which survive.]-In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought notwithstanding the death of the person entitled or liable to the same.
SEC. 455. [Actions which do not abate.]-No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office; which shall abate by the death of the defendant.
SEC. 456. [Of action-Death of one of several parties.-Where there are several plaintiffs or defendants in an action, and one of them dies, or his powers as a personal representative cease, if the right of action survive to or against the remaining parties, the action may proceed, the death of the party, or the cessation of his powers, being stated on the record.
SEC. 457. [Same-Action to proceed.]-Where one of several plaintiffs o defendants dies, or his powers as a personal representative cease, if the cause of action do not admit of a survivorship, and the court is of opinion that the merits of the controversy can be properly determined, and the principles applicable to the case fully settled, it may proceed to try the same as between the remaining parties; but the judgment shall not prejudice any who were not parties at the time of the trial.
SEC. 458. [Revivor in name of representatives.]—Where one of the parties to an action dies, or his powers as a personal representative cease, before the judgment, if the right of action survive in favor of or against his representatives or successor, the action may be revived, and proceed in their names.
SEC. 459. [Order of revivor.]-The revivor shall be by a conditional order of the court if made in term, or by a judge thereof if made in vacation, that the action be revived in the names of the representatives or successor of the party who died, or whose powers ceased, and proceed in favor of or against them.
SEC. 460. [Same-Made upon order.]-The order may be made on the motion of the adverse party, or of the representatives or successor of the party who died, or whose powers ceased, suggesting his death or the cessation of his powers, which, with the names and capacities of his representatives or successor, shall be stated in the order.
SEC. 461. [Same-Service of order.]-If the order is made by consent of the parties, the action shall forthwith stand revived; and if not made by consent, the order shall be served in the same manner, and returned within the same time, as a summons, upon the party adverse to the one making the motion, and if sufficient cause be not shown against the revivor, the action shall stand revived.
SEC. 462. [Notice by publication.]-When the plaintiff shall make an affidavit, that the representatives of the defendant, or any of them, in whose name the action may be ordered to be revived, are non-residents of the state, or have left the same to avoid the service of the order, or so conceal themselves that the order cannot be served upon them, or that the names and residence of the heirs or devisees of the person against whom the action may be ordered to be revived, or some of them, are unknown to the affiant, a notice may be published
SEC. 456. Revivor is matter of right. 7 Neb. 266. Continues original action. Id. 6 Neb. 424. Order conclusive. 6 Neb. 523. No objections heard which seek to go behind original judgment. 10 Neb. 192. Revivor against joint debtors. 12 Neb. 333. Failure of clerk to change title of cause not fatal. 6 Neb. 506. And see 12 Neb. 18.
SEC. 458. 6 Neb. 521.
for four consecutive weeks, as provided by section seventy-nine, notifying them to appear on a day therein named, not less than ten days after the publication is complete, and show cause why the action should not be revived against them; and if sufficient cause be not shown to the contrary, the action shall stand revived.
SEC. 463. [Death of plaintiff.]-Upon the death of the plaintiff in an action, it may be revived in the names of his representatives, to whom his right has passed. Where his right has passed to his personal representative, the revivor shall be in his name; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor may be in their names.
SEC. 464. [Death of defendant.]-Upon the death of a defendant in an action, wherein the right, or any part thereof, survives against his personal representative, the revivor shall be against him; and it may also be against the heirs or devisees of the defendant, or both, when the right of action, or any part thereof, survives against them.
SEC. 465. [Same-Action concerning realty.]-Upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devisees, or both, and an order therefor may be forthwith made in the manner directed in the preceding sections of this title.
SEC. 466. [Same-Revivor, when made.]-An order to revive an action against the representatives or successor of a defendant, shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.
SEC. 467. [Death of plaintiff-Revivor, when made.]—An order to revive an action in the names of the representatives or successor of a plaintiff, may be made forthwith, but shall not be made without the consent of the defendant, after the expiration of one year from the time the order might have been first made; but where the defendant shall also have died, or his powers have ceased in the meantime, the order of revivor on both sides may be made in the period limited in the last section.
SEC. 468. [Action, when stricken from docket.]-When it appears to the court by affidavit that either party to an action has been dead, or, where a party sues or is sued as a personal representative, that his powers have ceased, for a period so long that the action cannot be revived in the names of his representatives or successor, without the consent of both parties, it shall order the action to be stricken from the docket.
SEC. 469. [Same-Death of plaintiff.]—At any term of the court succeeding the death of the plaintiff, while the action remains on the docket, the defendant having given to the plaintiff's proper representatives, in whose names the action might be revived, ten days notice of the application therefor, may have an order to strike the action from the docket and for costs against the estate of the plaintiff, unless the action is forthwith revived.
SEC. 470. [Revived action, when tried.]-When, by the provisions of the preceding sections, an action stands revived, the trial thereof shall not be postponed by reason of the revivor, if the action would have stood for trial at the term the revivor is complete, had no death or cessation of powers taken place.
REVIVOR AND NEW PARTIES TO JUDGMENT.
SEC. 471. [Joint debtors.]-When a judgment is recovered against one or more persons jointly indebted upon contract, those who were not originally summoned may be made parties to the judgment by action.
SEC. 472. [Death of parties.]-If either or both the parties die after judgment, and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment; and such judgment may
SEC. 464. 7 Neb. 265.
be rendered and execution awarded as might or ought to be given or awarded against the representatives, real or personal, or both, of such deceased party.
SEC. 473. [Dormant judgment.]-If a judgment become dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment.
SEC. 474. [Issuance.1-Executions shall be deemed process of the court, and shall be issued by the clerk and directed to the sheriff of the county. They may be directed to different counties at the same time.
SEC. 475. [Different kinds.-Executions are of three kinds: First. Against the property of the judgment debtor. Second. Against his person. Third. For the delivery of the possession of real property with damages for withholding the same, and costs.
AGAINST THE PROPERTY OF THE JUDGMENT DEBTOR.
SEO. 476. [Property subject to levy.]-Lands, tenements, goods and chattels, not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution and sold as hereinafter provided.
SEC. 477. [Lien of judgment.]-The lands and tenements of the debtor within the county where the judgment is entered, shall be bound for the satisfaction thereof. from the first day of the term at which judgment is rendered; but judgments by confession, and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered. All other lands, as well as goods and chattels of the debtor, shall be bound from the time they shall be seized in execution.
SEC. 478-481. [Repealed 1875, 51.]
SEC. 477 a. [Stay of execution-Order of sale.]-SEC. 1. Hereafter no stay of execution or order of sale upon any judgment or decree shall be granted for a longer time than nine months from and after the rendition of such judg ment or decree. [1875, 49.]
SEC. 477 b. [Same-Mortgaged premises.]-SEC. 2. The order of sale on all decrees for the sale of mortgaged premises shall be stayed for the period of nine months from and after the rendition of such decree, whenever the defendant shall within twenty days after the rendition of such decree, file with the clerk of the court a written request for the same; Provided, That if the defendant make no such request within said twenty days, the order of sale may issue immediately after the expiration thereof.
SEC. 477 c. [Same Judgments.]-SEC. 3. On all judgments for the recovery of money only, except those rendered in any court on an appeal or writ of error thereto or against any officer or person or corporation, or the sureties of any of them, for money received in a fiduciary capacity, or for the breach of any official duty, there may be a stay of execution if the defendant therein shall, within twenty days from the rendition of judgment, procure two or more sufficient freehold sureties to enter into a bond, acknowledging themselves security for the defendant for the payment of the judgment, interest, and costs, from the time of rendering
SEC. 474. 1 Neb. 293. Want of seal not fatal; writ may be amended after confirmation of sale. 15 Neb. 198. Cannot issue if supersedeas bond on file. 8 Neb. 305. SEC. 477. 1 Neb. 294. 7 Id. 293. Judgment attaches to after acquired lands. 7 Neb. 394. [Overruling, 1 Id. 139.] But only to interest of debtor. 1 Neb. 145. 5 Id. 161. 7 Id. 290. 8 Id. 399. Subject to prior liens. 11 Neb. 298, 370. 7 Id. 465. Lien of judgment subject to equity of prior unrecorded conveyance. 7 Neb. 290. [Overruling, 1 Id. 465.] 8 Id. 435, 10 Id. 189. Lien how perfected. 16 Neb. 73. Judgment is lien on vendor's interest. 16 Neb. 312. See also 12 Neb. 16, 17. 15 Id. 380. Lien in divorce cases. 12 Neb. 212. 14 Neb. 186
SEC. 477 a. Law relative to enters into contracts. 7 Neb. 13. 11 Id. 389. Foreclosing mechanic's lien; security must be given. 10 Neb. 589. May be had by agreement between parties. 6 Neb. 446. Boud by sureties alone void. Neb.418. Bond by one surety. 7 Neb.13. Certificate of discharge in bankruptcy. 6 Neb. 454.
judgment until paid, as follows: First. If the sum for which judgment was rendered, exclusive of costs, does not exceed fifty dollars, three months. Second. If the sum for which judgment was rendered, exclusive of costs, exceeds fifty dollars and does not exceed one hundred dollars, six months. Third. If the sum for which judgment was rendered, exclusive of costs, exceeds one hundred dollars, nine months.
SEC. 477 d. [Same-Bond.]-SEC. 4. Officers approving stay bonds shall require the affidavits of the signers of such bonds that they own real estate not exempt from execution, and aside from incumbrance, to the value of twice the amount of the judgment.
SEC. 477 e. [Error-Appeal-Surety.]-SEC. 5. No proceedings in error or appeal shall be allowed after such stay has been taken, nor shall a stay be taken on a judgment entered as herein contemplated, against one who is surety in the stay of execution.
SEC. 477 f. [Bond-Effect.]-SEC. 6. The sureties for the stay of execution may be taken and approved by the clerk, and the bond shall be recorded in a book kept for that purpose, and have the force and effect of a judgment confessed from the date thereof against the property of the sureties, and the clerk shall enter and index the same in the proper judgment docket, as in the case of other judgments.
SEC. 477 g. [Execution recalled.]-SEC. 7. When the surety is entered after execution issued, the clerk shall immediately notify the sheriff of the stay, and he shall forthwith return the execution, with his doings thereon.
SEC. 477 h. [Property levied upon relinquished.]—SEc. 8. All property levied on before stay of execution, and all written undertakings for the delivery of personal property to the sheriff, shall be relinquinshed by the officer upon stay of execution being entered.
SEC. 477 i. [Expiration-Execution.]-SEC. 9. At the expiration of the stay the clerk shall issue a joint execution against the property of all the judgment debtors and sureties, describing them as debtors or sureties therein.
SEC. 477 j. [Effect on judgment lien.]--SEC. 10. Where a stay of execution has been taken, such confessed judgment shall not release any judgment lien by virtue of the original judgment for the amount then due. The officer holding the execution shall return thereon what amount was made from the principal debtor, and how much from the sureties.
SEC. 482. [Dormant judgment.]-If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.
SEC. 483. [Contents of writ.]-The writ of execution against the property of the judgment debtor, issuing from any court of record in this state, shall command the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ, and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor; and the exact amount of the debt, damages and costs, for which the judgment is entered, shall be endorsed on the execution.
SEC. 484. [Several writs-Preference.]-When two or more writs of execution against the same debtor shall be sued out during the term in which judgment was rendered, or within ten days thereafter, and when two or more writs of execution against the same debtor shall be delivered to the officer on the same day, no preference shall be given to either of such writs; but if a sufficient sum of money be not made to satisfy all executions, the amount made shall be distribu