SEC. 598. [Premature judgment.]-Rendering judgment before the action stood for trial according to the provisions of this code, shall be deemed a clerical error.

SEC. 599. [Certiorari writ abolished.]-Writs of error and certiorari to reverse, vacate, or modify judgments or final orders in civil cases, are abolished, but courts shall have the same power to compel, complete, and perfect transcripts of the proceedings containing the judgment or final order sought to be reversed, to be furnished, as they heretofore had under writs of error and certiorari.

SEC. 600. [Affirmance of justice's judgment.]-If the judgment of a justice of the peace, taken on error as herein provided, to the district court, be affirmed, it shall be the duty of such court to render judgment against the plaintiff in error, for the costs of suit, and to award execution therefor; and the court shall thereupon order its clerk to certify its decision in the premises, to the justice, that the judgment affirmed may be enforced, as if such proceedings in error had not been taken; or such court may award execution to carry into effect the judgment of such justice, in the same manner as if such judgment had been rendered in the district court.

SEC. 601. [Reversal of justice's judgment.]-When the proceedings of a justice of the peace are taken on error to the district court, in manner aforesaid, and the judgment of such justice shall be reversed or set aside, the court shall render judgment of reversal, and for the costs that have accrued up to that time, in favor of the plaintiff in error, and award execution therefor; and the cause shall be retained by the court for trial and final judgment as in cases of appeal.

SEC. 601 a. [Complete record supreme court.]-SEC. 12. A complete record of every cause in the supreme court, as soon as it is finally determined, shall be made by the clerk of such court. Such record shall consist of the petition in error, the process and subsequent pleadings, and opinion of the court, but shall not include the transcript of proceedings had in the district court. [G. S. 713.]

PROCEEDINGS TO REVERSE, VACATE OR MODIFY JUDGMENTS AND ORDERS IN THE COURTS IN WHICH THEY ARE RENDERED.

SEC. 602. [District court-After term.]—A district court shall have power to vacate or modify its own judgments or orders, after the term at which such judgment or order was made: First. By granting a new trial of the cause, within the time and in the manner prescribed in section three hundred and eighteen. Second. By a new trial granted in proceedings against defendants constructively summoned, as provided in section seventy-seven. Third. For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order. Fourth. For fraud practiced by the successful party in obtaining the judgment or order. Fifth. For erroneous proceedings against an infant, married woman or person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. Sixth. For the death of one of the parties before the judgment in the action. Seventh. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending. Eighth. For errors in a judgment shown by an infant in twelve months after arriving at full age, as prescribed in section four hundred and forty-two. Ninth. For taking

SEC. 601. Judgment of reversal may be reviewed by supreme court. 5 Neb. 241. District court cannot acquire jurisdiction of cause on appeal if lower court had not. 14 Neb. 519. Having jurisdiction, court may supply defects in record. 12 Neb. 524.

SEC. 602. Ignorance of time fixed for holding court no ground for relief. 2 Neb. 143. Stranger cannot be substituted as party defendant. 8 Neb. 467. Married women not protected. 6 Neb. 187. Proceedings reviewable on error. 2 Neb. 145. 5 Neb. 193. 9 Id. 533. Sections limits power of court. 10 Neb. 192. [See note to sec. 318.] Power to vacate discretionary. 2 Neb. 145. 3 Id. 27. 9 Id. 220, 277. Judgment entered on appearance by attorney without authority; may be opened with leave to defendant to answer. 12 Neb. 113. Power given does not confer original jurisdiction. 5 Neb. 193. Purchaser under judgment subsequently opened not affected. 15 Neb. 203, 197. See also 13 Neb. 229. 14 Id. 454, 15 Id. 619. 16 Id. 574.

judgments upon warrants of attorney, for more than was due to the plaintiff, when the defendant was not summoned, or otherwise legally notified of the time and place of taking such judgment.

SEC. 603. [Same-Proceedings.]-The proceedings to vacate or modify the judgment or order on the grounds mentioned in subdivisions four, five, six, seven, eight and nine of the last preceding section, shall be by petition verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On such petition a summons shall issue and be served as in the commencement of an action; Provided, Such summons shall not issue in any case in which there is upon the minutes of the court, or among the files of the case, a waiver of error by the party or his attorney, unless the court, or a judge thereof, shall endorse upon the petition permission to issue such summons.

SEC. 604. [Correction of mistakes--Vacate judgment-When.]— The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action. The motion to vacate a judgment because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term.

SEC. 605. [Decision of court.]-The court may first try and decide upon the grounds to vacate or modify a judgment or order, before trying or deciding upon the validity of the defense or cause of action.

SEC. 606. Judgment not vacated-When liens-Securities preserved.]—A judgment shall not be vacated on motion or petition, until it is adjudged that there is a valid defense to the action in which the judgment is rendered, or, if the plaintiff seeks its vacation, that there is a valid cause of action; and where a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment.

SEC. 607. [Injunction-Suspending proceedings.-The party seeking to vacate or modify a judgment or order, may obtain an injunction suspending proceedings on the whole or part thereof, which injunction may be granted by the court, or any judge thereof, upon its being rendered probable, by affidavit or by exhibition of the record, that the party is entitled to have such judgment or order vacated or modified.

SEC. 608. [Same.]-When the judgment was rendered before the action. stood for trial, the suspension may be granted as provided in the last section, although no valid defense to the action is shown; and the court shall make such orders concerning the executions to be issued on the judgment, as shall give to the defendant the same rights of delay he would have had if the judgment had been rendered at the proper time.

SEC. 609. [When commenced-Limitation.]-Proceedings to vacate or modify a judgment or order, for the causes mentioned in subdivision four, five and seven of section six hundred and two, must be commenced within two years after the judgment was rendered, or order made, unless the party entitled thereto be an infant, married woman, or person of unsound mind, and then within two years after removal of such disability. Proceedings for the causes mentioned in subdivisions three and six of the same section, shall be within three years, and in subdivision nine within one year, after the defendant has notice of the judgment.

SEC. 610. [Application to supreme and county courts.]-The provisions of this title subsequent to section six hundred and one, shall apply to the supreme court and probate court, so far as the same may be applicable to the judgments or final orders of such courts. The parties shall be limited to the same time in which to commence proceedings; and in estimating time, the probate court shall, for this purpose, be considered as holding, in each year, three terms of four months each, the first commencing on the first day of January of each year.

SEC. 611. [Cases pending in appellate court.]-Cases pending in appellate courts on writs of error or otherwise, when this code takes effect, shall be conducted to final judgment, as if it had not been adopted, and the liens of judgments and decrees rendered when it takes effect shall be preserved.

TITLE XVII.-COSTS.

SEC. 612. [Security-Non-resident plaintiff.]-In all cases in which the plaintiff is a non-resident of the county in which the action is to be brought, before commencing such action the plaintiff must furnish a sufficient surety for costs. The surety must be a resident of the county where the action is to be brought, and approved by the clerk. His obligation shall be complete, simply by endorsing the summons, or signing his name on the complaint as security for costs. He shall be bound for the payment of all costs, which may be adjudged against the plaintiff in the court in which the action is brought, or in any other to which it may be carried, and for costs of the plaintiff's witnesses, whether the plaintiff obtain judgment or not.

SEC. 613. [Same-Failure-Action dismissed.]-An action in which security for the costs is required by the last section, and has not been given shall be dismissed on motion and notice by the defendant at any proper time before judgment, unless in a reasonable time to be allowed by the court, such security for costs be given.

SEC. 614. [Same-Plaintiff becoming non-resident.]-If the plaintiff in an action after its commencement, become a non-resident of the county in which it was brought, he shall give security for costs in the manner and under the restrictions provided in the two preceding sections.

SEC. 615. [Additional security.]-In an action in which security for costs has been given, the defendant may at any time before judgment, after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court be satisfied that the surety has removed from this state, or is not. sufficient, the action may be dismissed, unless, in a reasonable time to be fixed by the court, sufficient security be given by plaintiff.

SEC. 616. [Judgment against surety for costs.]-After final judgment has been rendered in an action in which securitiy for costs has been given, as required by this chapter, the court, on motion of the defendant, or any other person having a right to such costs, or any part thereof, after ten days notice of such motion, may enter up judgment in the name of the defendant, or his legal representatives, against the surety for costs, his executors or administrators, for the amount of the costs adjudged against the plaintiff, or so much thereof as may be unpaid. Execution may be issued on such judgment, as in other cases, for the use and benefit of the persons entitled to such costs.

SEC. 617. [Informers under penal statutes.]-If any informer, under a penal statute, to whom the penalty, or any part thereof, if recovered, is given, shall dismiss his suit or prosecution, or fail in the same, he shall pay all costs accruing on such suit or prosecution unless he be an officer whose duty it is to commence the same.

SEC. 618. [Defendant disclaiming.]-Where defendants disclaim having any title or interest in land or other property, the subject matter of the action, they shall recover their costs, unless for special reasons the court decide otherwise.

SEC. 619. [Motions-Amendments.] — Unless otherwise provided by statute, the costs of motions, continuances, amendments, and the like, shall be taxed and paid as the court in its discretion may direct.

SEC. 612. Security given afrer service of summons sufficient. 12 Neb. 41. Security by partnership. 7 Neb. 246. Statutes relative to costs construed strictly. 10 Neb. 308. Plaintiff and defendant primarily lis ble. 12 Neb. 243.

SEC. 619. On amendment of petition costs taxed to plaintiff. 9 Neb. 5.

SEC. 620. [Plaintiff-Allowed of course.]-When it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property.

SEC. 621. [Same-Not allowed.]—If it shall appear that a justice of the peace has jurisdiction of an action, and the same has been brought in any other court, the plaintiff shall not recover costs; and in all actions for libel, slander, malicious prosecution, assault, assault and battery, false imprisonment, criminal conversation, seduction, actions for nuisance, or against a justice of the peace for misconduct ir office, if the damages assessed be under five dollars, the plaintiff shall not recover any costs.

SEC. 622. [Defendant-Allowed of course.]-Costs shall be allowed of course to any defendant upon a judgment in his favor in the actions mentioned in the last two sections.

SEC. 623. [Under control of court-When.]-In other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable.

SEC. 624. [Several actions on one instrument.]-Where several actions are brought on one bill of exchange, promissory note, or other obligation or instrument in writing, against several parties, who might have been joined as defendants in the same action, as allowed by section forty-four, no costs shall be recovered by the plaintiff in more than one of such actions, if the parties proceeded against in the other actions were, at the commencement of the previous action, openly within the state.

SEC. 625. [Fees-Summons issued to another county.]-When a summons is issued to another county than that in which the action or proceeding is pending, it may be returned by mail, and the sheriff shall be entitled to the same fees as if the summons had issued in the county of which he is sheriff.

SEC. 625 a. [Postponement of trial.]—SEC. 1. That when an application shall be made to a court of record to postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, besides the costs of the term, may in the discretion of the judges be imposed as a condition of granting the postponeLent. [1875, 63.]

SEC. 625 b. [Motions-Demurrers.]-SEC. 2. Costs may be allowed on a motion or demurrer in the discretion of the court or judge, not exceeding ten dollars, which shall be absolute against the losing party on such demurrer or motion: Provided, That this provision shall not apply to verbal motions and demurrer, ore tenus during the course of the trial.

TITLE XVIII.-ACTIONS AND PROCEEDINGS IN PARTICULAR CASES.

CHAPTER I.-ACTIONS CONCERNING REAL PROPERTY.

SEC. 626. [Recovery-Petition-Allegations.]-In an action for the recovery of real property, it shall be sufficient, if the plaintiff state in his petition that he has a legal estate therein, and is entitled to the possession thereof, describing the same, as required by section one hundred and thirty-three, and that the defendant unlawfully keeps him out of the possession. It shall not be necessary to state how the plaintiff's estate or ownership is derived.

SEC. 627. [Answer.]-It shall be sufficient in such action, if the defendant

SEC. 620-623. If justice have jurisdiction and action brought in another court, there can be no recovery of costs. 2 Neb. 77. 5 Id. 100. 6 Id. 102. 9 Id. 264, 273, 462. And it action be brought in county court, amount claimed over $100, verdict for less, or amount reduced by set-off to less, there can be no recovery. 5 Neb. 100. 11 Id. 462. But otherwise where plaintiff only claims $50. 9 Neb. 265. And in an action against sheriff to recover value of property levied on, brought in the district court, amount claimed over $100 and recovery less, Held, That justice had jurisdiction, and each party required to pay his own costs. 9 Neb. 473. And see 14 Neb. 211. 16 Id. 111, 540.

SEC. 626 Stating cause of action. 9 Neb. 85. Facts need not be specially pleaded. 2 Neb. 118. Plaintiff must show legal title. 2 Neb. 451. Must recover on strength of his own title. 5 Neb. 525. And'see generally 6 Neb. 367. 10 Id. 187. 11 Id, 376, 406. 527. 12 Id. 224, 538. 131d. 507. 14 Id. 368, 378, 15 Id. 540. 16 Id. 217, 313, 411.

in his answer deny, generally, the title alleged in the petition, or that he withholds possession, as the case may be; but if he deny the title of the plaintiff, possession by the defendant shall be taken as admitted. Where he does not defend for the whole premises, the answer shall describe the particular part for which defense is made.

SEC. 628. [Tenants in common.]—In an action by a tenant in common of real property, against a co-tenant, the plaintiff must state, in addition to what is required in the first section of this chapter, that the defendant either denies the plaintiff's right, or did some act amounting to such denial.

SEC. 629. [Plaintiff's right terminating during pendency of action.]-In an action for the recovery of real property, where the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover for withholding the property.

SEC. 630. [Two trials allowed.]-In an action for the recovery of real property, the party against whom judgment is rendered may, at any time during the term at which the judgment is rendered, demand another trial by notice on the journal, and thereupon the judgment shall be vacated, and the action shall, stand for trial at the next term.

SEC. 631. [Same.]-No further trial can be had in such action, except upon appeal, unless for good cause shown, as in other actions.

SEC. 632. [Occupying claimants.]—The parties in an action for the recovery of property may avail themselves, if entitled thereto, of the relief of the statutes in force for the relief of occupying claimants of land.

SEC. 633. [Waste-Damages.]—If a guardian, tenant for life or years, joint tenant or tenant in common of real property, commit waste thereon, he is liable to pay three times the damages which have resulted from such waste, to the person entitled to sue therefor.

SEC. 634. [Same-Judgment of forfeiture and conviction.]—Judgment of forfeiture and conviction may be rendered against the defendant, whenever the amount of damages so recovered is more than two-thirds the value of the interest such defendant has in the property wasted, and when the action is brought by the person entitled to the reversion.

SEC. 635. [Same-By whom.]-Any person whose duty it is to prevent waste, and who has not used reasonable care and diligence to prevent it, is deemed to have committed it.

SEC. 636. [Wilful trespass-Damages.]-For wilful trespass, injuring any timber, tree, or shrub on the land of another, or in the street or highway in front of another's cultivated ground, yard, or town lot, or on the public grounds of any town, or any land held by this state, for any purpose whatever, the trespasser shall pay treble damages at the suit of any person entitled to pot c or enjoy the property aforesaid.

SEC. 637. [Same-Wood from uncultivated lands.]-Nothing herein contained authorizes the recovery of more than the just value of the timber taken from uncultivated wood land for the repair of a public highway or bridge in its immediate neighborhood.

SEC. 638. [Remaindermen-Reversioners.]—The owner of an estate in remainder or reversion, may maintain either of the aforesaid actions for injuries done to the inheritance, notwithstanding any intervening estate for life or years.

SEC. 639. [Same--Heirs.]-An heir, whether a minor or of full age, may maintain these actions for injuries done in the time of his ancestors as well as in his own time, unless barred by the statute of limitations.

SEC. 640. [Lands sold on execution.]-Where lands or tenements are

SEC. 630. 13 Neb. 357. 15 Id. 144.

Sec. 632. See ante chap. 63.