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in civil and criminal cases, and civil and criminal process may be executed by them throughout the county.
SEC. 1076. [Duties.]-It shall be the duty of every constable to serve and execute all warrants, writs, precepts, executions and other process to him directed and delivered, and in all respects whatever to do and perform all things pertaining to the office of constable. And sheriffs shall have all the powers and be subject to all the liabilities of constables in the service and return of all processes issued by justices of the peace in their respective counties.
SEC. 1077. [Posse comitatus-Return of process.]-In discharging their duties, constables may call to their aid the power of the county, or such assistance as may be necessary. It shall be the duty of every constable or sheriff to make due return of all process to him directed and delivered, at the proper office and on the proper return day thereof; or if the judgment be docketed in the district court, appealed or stayed, upon which he has an execution, on notice thereof to return the execution, stating thereon such fact.
SEC. 1078. [Receipt of process-Endorsement.]-It shall be the duty of every constable or sheriff, on the receipt of any writ or other process (subpoenas excepted), to note thereon the time of receiving the same; he shall also state in his return on the same, the time and manner of executing it.
SEC. 1079. [Return of "not found."]-No officer shall make a return on any process of "not found," as to any defendant, unless he shall have been once, at least, to the usual place of residence of the defendant, if such defendant have any in the county.
SEC. 1080. [Criminal arrests-Keepers of peace.]—It shall be the duty of every constable and sheriff to apprehend, on view or warrant, and bring to justice all felons and disturbers and violaters of the criminal laws of this state, to suppress all riots, affrays and unlawful assemblies, which may come to his knowledge, and, generally, to keep the peace in his proper county. [Constables-Authority-Powers.]-In
SEC. 1081. serving all process, either civil or criminal, and in doing his duties generally, when not otherwise restricted by law, the authority of a constable shall extend throughout the whole county in which he may be appointed; and in executing and serving process issued. by a justice of the peace, he shall have and exercise the same authority and powers over goods and chattels and the persons of parties as is granted by law to a sheriff, under like process issued from courts of record.
SEC. 1082. [Arrest-Copy of mittimus to jailer-Return.]-When it shall become the duty of the officer to take the body of any person to the jail of the county, he shall deliver to the sheriff or jailer a certified copy of the execution, commitment or other process, whereby he holds such person in custody, and return the original to the justice who issued the same; which copy shall be sufficient authority to the sheriff or jailer to keep the prisoner in jail, until discharged by due couse of law.
SEC. 1083. [Moneys received-Payment.]-Constables and sheriffs shall pay over to the party entitled thereto, all money received by them in their official capacity, if demand be made by such party, his agent or attorney, at any time before he returns the writ upon which he has received it; if not paid over by that time, he shall pay the same to the justice when he returns the writ.
SEC. 1084. [False return-Penalty.]-Constables and sheriffs shall be liable to twenty per cent. penalty upon the amount of damages for which judgment may be entered against them, for failing to make return, making false return, or failing to pay over money by them collected or received in their official capacity, and such judgment must include, in addition to the damages and costs, the penalty herein provided.
CHAPTER XIV.-GENERAL PROVISIONS.
SEC. 1085. [Application of code.]-The provisions of this code, which are in their nature applicable, and in respect to which no special provision is made by statute, shall apply to proceedings before justices of the peace.
SEC. 1085. 13 Neb. 221.
SEC. 1086. [Justice's docket-Contents.]-Every justice must keep a book, denominated a docket, in which must be entered by him: First. The title of every action in which the writ is served, or where the parties voluntarily appear. Second. The date of the writ, the time of its return, and if an order to arrest the defendant or attach property was made, such fact must be stated, together with the affidavit upon which such order was made. Third. The filing of the bill of particulars of either party, and the nature thereof, and when not of too great length, the same shall be entered at length on the docket. Fourth. Which of the parties, if either of them, appear at the trial. Fifth. Every adjournment, stating on whose application, whether on oath or consent, and to what time. Sixth. When trial by jury is demanded, the demand must be stated, and by whom made, the names of the jurors selected, and the time appointed for the trial. Seventh. The names of the jurors who appear and of those sworn, the names of all witnesses sworn and at whose request. Eighth. The exceptions to the ruling of the justice, on questions of law, taken by either party. Ninth. The verdict of the jury, and when received; if the jury disagree and are discharged, that fact must be stated. Tenth. The judgment of the justice, specifying the items of costs included, and the time when rendered. Eleventh. The issuing of execution and orders to sell, when issued and to whom, the renewals thereof, if any, and when made, the return and when made, and a statement of any money paid to the justice, and by whom. Twelfth. The giving of a transcript to be filed in the clerks office, and when given. Thirteenth. If appeal be taken, the undertaking and the time of entering into the same, and by which party taken. Fourteenth. The undertaking for stay of execution, and the time of giving the same. Fifteenth. The satisfaction of the judgment, and the time of satisfying the same.
SEC. 1087. [Same-Entries, when made-Evidence.]-The several particulars in the last section specified, must be entered under the title of the action to which they relate, and at the time when they occurred, except that bills of exceptions in regard to the rulings on questions of law or evidenee, need not be entered until after the judgment, unless required by the justice or one of the parties; such entries in a justice's docket, or a transcript thereof, certified by the justice or his successor in office, shall be evidence to prove the facts stated therein.
SEC. 1088. [Same-Index-Papers how kept.]-A justice must keep an alphabetical index to his docket, in which must be entered the names of the parties to each judgment, with reference to the page of the entry; the names of the plaintiffs must be entered in the index in the alphabetical order of the first letter of the family names; he shall number the cases progressively upon his docket, and shall correspondingly number the papers in each case; he shall keep the entire papers in each action together, and in packages of a proper and convenient size, and in the order in which the cases are numbered on his docket.
SEC. 1089. [Same-Delivery to successor.]-It is the duty of every justice, upon the expiration of his term of office, to deposit with his successor, his official docket, as well his own as those of his predecessor which may be in his custody, together with all files and papers, laws and statutes, pertaining to his office, there to be kept as public records and property. If there be no successor elected and qualified, or if the office become vacant by death, removal from the county, or otherwise, before his successor is elected and qualified, the docket and papers in the possession of such justice must be deposited with the nearest justice in the county, there to be kept until a successor be chosen and qualified, then to be delivered over to such successor on request.
SEC. 1090. [Same-Receipt.]-A justice receiving by succession or on deposit, any such docket, papers, and laws, shall, if requested, give a receipt therefor to the person from whom he receives the sane.
SEC. 1091. [Same-Authority of successor.]-The justice with whom the docket of another may be deposited, either during vacancy or as a successor,
SEC. 1086. 16 Neb. 231.
is hereby authorized, while having such docket legally in his possession, to issue execution on any judgment there entered and unsatisfied, and not docketed in the district court, in the same manner and with the same effect as the justice by whom the judgment was rendered might have done; to take bail in appeals or for stay of execution, to issue certified transcripts of judgments on such docket, and proceed in all cases in like manner as if the same had been originally had or instituted before him.
SEC. 1092. [Disability of justice-Proceedings.]-In case of sickness or other disability, or necessary absence of a justice, at the time appointed for trial, another justice of the same county may, at his request, attend in his behalf, and shall thereupon become vested with the powers, for the time being, of the justice before whom the summons was returnable. In that case the proper entry of the proceeding before the attending justice, subscribed by him, must be made in the docket of the justice, before whom the writ was returnable. If the case be adjourned, the justice before whom the summons was returnable must resume jurisdiction.
SEC. 1093. [Papers containing blanks void.]-The summons, execution and every other paper made or issued by a justice, must be filled up without a blank to be filled by another; otherwise it is void.
SEC. 1094. [Deputation to serve process.]-A justice, at the request of a party, and on being satisfied that it is expedient, may specially depute any discreet person of suitable age, and not interested in the action, to serve a summons or execution with or without an order to arrest the defendants or to attach property. Such deputation must be in writing on the process.
SEC. 1095. [Same-Fees.]-The person so deputed has the authority of a constable, in relation to the service, execution, and return of such process, and is subject to the same obligation, but there can be no fee for his services taxed in the bill of costs.
SEC. 1096. [Contempts punishable.]-A justice may punish as for contempt, persons guilty of the following acts, and no others: First. Disorderly, contemptuous, or insolent behavior toward the justice, tending to interrrupt the due course of the trial, or other judicial proceedings before him. Second. A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding. Third. Wilful resistance in the presence of the justice, to the execution of a lawful order or process made or issued by him.
SEC. 1097. [Same-Arrest-Punishment.]-A warrant of arrest may be issued by such justice, on which the person so guilty may be arrested and brought before the justice, when an opportunity to be heard in his defense or excuse must be given. The justice may thereupon discharge him or may convict him for the offense and adjudge a punishment by fine or imprisonment, or both; such fine not to exceed twenty dollars, and such imprisonment ten days.
SEC. 1098. [Same-Entry of judgment-Warrant.]-The conviction, specifying particularly the offense and the judgment thereon, must be entered in his docket; a warrant of commitment to the jail of the county, until the fine be paid, or for the term of imprisonment, may then be issued; such warrant must contain a transcript of the entry in the docket, and the same must be executed by any constable or sheriff to whom it may be given, and by the jailer of the County.
SEC. 1099. [Security for costs Non-resident.]-When a person intending to bring an action before a justice of the peace, is a non-resident of the County in which he intends to commence such action, the justice may, previous to his issuing process, require such person to give security for costs of suit; which may be done by depositing a sum of money, deemed by the justice to be sufficient to discharge the costs that may accrue in the action, or by giving an undertaking, with security approved by the justice, payable to the adverse party, for the payment of all costs that may accrue in the action. If any plaintiff or plaintiffs,
SEC. 1094. 12 Neb. 41, 204. 15 Id. 523.
after commencing an action before a justice in the county in which he or they reside, afterwards remove out of the county, the justice may require such plaintiff or plaintiffs to deposit a sum of money, equal to the costs that have accrued, and that probably will accrue, or require, in place thereof, that such party give sufficient security for all costs that have accrued, or which may accrue in the action, and in default to do either, shall enter a nonsuit against the plaintiff or plaintiffs.
SEC. 1100. [Evidence of debt-Filing.]—In all actions instituted before a justice of the peace, founded upon any bond, bill, promissory note, or other instrument of writing, for the payment of a sum of money certain, of which the whole amount of money promised therein is due, it shall be the duty of the plaintiff, his agent or attorney, to file said bond, bill, promissory note, or other written evidence of indebtedness, upon which said suit is brought, with such justice of the peace; and if upon the trial, judgment shall be entered thereon, in favor of the plaintiff, such bond, bill, promissory note, or other instrument in writing, shall be retained by the justice so rendering judgment, who shall endorse thereon the sum for which he shall have entered judgment (provided the same shall in no wise exceed one hundred dollars), and shall subscribe his name thereto. And upon payment, or tender of the amount of such payment, together with the costs accruing thereon, or securing the payment of the same by putting in bail for the stay of execution, it shall not be lawful for the plaintiff to institute any other suit or suits upon such bond, bill, promissory note, or other instrument of writing, for the recovery of any other sum or sums, the payment of which is secured by the same bond, bill, promissory note, or other written evidence of indebtedness; Provided, That when an appeal shall be taken from the judgment of such justice, it shall be his duty to transmit any bond, bill, promissory note, or other written evidence produced before him on trial, to the clerk of the district court, to which such cause shall have been appealed, or or before the second day of the term of the court next after taking such appeal; Provided, also, That nothing herein contained shall be construed to lessen or in anywise affect the right which any creditors now have to demand from any justice of the peace, any joint and several obligation, for the purpose of prosecuting any party to said obligation, other than the party against whom judgment may have been rendered.
SEC. 1100 a. [Proof of written instrument.]-That in all civil actions before justices of the peace, in which the defendant has been served with summons in this state, it shall not be necessary to prove the execution of any bond, promissory note, bill of exchange, or other written instrument, or any indorsement thereon, upon which the action is brought, or set-off or counter-claim is based, unless the party sought to be charged as the maker, acceptor, or indorser, of such bond, promissory note, or bill of exchange, or other written instrument, shall make and file with the justice of the peace, before whom the suit is pending, an affidavit that such instrument was not made, given, subscribed, accepted, or indorsed by him. [G. S. § 1, 717.]
SEC. 1101. [Justice purchasing judgment-Penalty.]-It shall not be lawful for any justice of the peace to purchase any judgment upon any docket in his possession; and for so doing, and for every such offense, such justice shall forfeit and pay a sum not more than fifty dollars, nor less than ten dollars, to be recovered by an action before any court having jurisdiction thereof, and when collected, shall be paid into the treasury of the county where such offense was committed.
SEC. 1102. [Application of code to pending suits.]-The provisions of this title do not apply to proceedings in actions or suits pending when it takes effect. They shall be conducted to final judgment and determination in all respects as if it had not been adopted.
SEC. 1100. If debtor pays money after note is filed with justice, the money would be received in his of ficial capacity and his sureties liable. But not for money paid him on note left in his hands for collection without suit. 10 Neb. 490. Justice has jurisdiction to extent of two hundred dollars. 15 Neb. 666. 16 Id. 234.
SEC. 1100 a. 14 Neb. 249.
SEC. 1103. [Jurisdiction.]-Justices of the peace shall have jurisdiction in all cases where the sum in question does not exceed two hundred dollars except in cases limited in this title. [Amended Feb. 28. Took effect June 1, 1881.] TITLE XXXI.-MISCELLANEOUS PROVISIONS.
SEC. 1104. [Pending chancery cases.]-SEC. 4. The final orders or decrees of chancery heretofore rendered, or which may hereafter be rendered, in any chancery proceedings pending at the time this act shall take effect, may be enforced or reviewed in the same manner, and within the same time, as if this act had not taken effect; and all suits in chancery pending at the time of the taking effect of this act may be prosecuted to final decree in like manner. [1867, 71.]
SEC. 1105. [Definitions.1-SEC. 5. The words hereinafter found in the code of civil procedure, shall be construed and held to mean as follows, to wit: "complainant" shall mean plaintiff; "bill" or "complaint" shall mean petition; "suit" shall mean action or civil action; and "decree" shall mean judgment; and all other words and terms found in said code of civil procedure, heretofore applicable to the chancery practice hereby repealed, shall be so construed and held as to carry out the intention of this act, prevent a failure of justice, and give adequate relief in all cases. [Id.]
SUITS BY AND AGAINST STATE.
SEC. 1106. [District court-Jurisdiction.]-SEC. 1. That the several district courts of the judicial districts of the state as now provided for and established by the constitution of the state, and of such judicial districts as may hereafter be provided by law, shall have jurisdiction to hear and determine the following matters: First. All claims against the state filed therein, which have previously been presented to the auditor of public accounts, and have been in whole or in part rejected or disallowed. Second. All claims or petitions for relief that may be presented to the legislature, and which may be by any law, or by any rule or resolution of the legislature, or either house thereof, referred to either of said courts for adjudication. Third. Of all set-offs, counter-claims, claims for damages, liquidated or unliquidated, on the part of the state, against any person making a claim against the state, or against the person in whose favor such claim arose. [1877, 19.]
SEC. 1107. [Petition.]-SEC. 2. The claimant shall, in all cases, file a petition, setting forth the facts out of which his claim originally arose; the action of the legislature, or of either house thereof, or of any department of government thereon, if any such has been had; what person or persons, is the owner, or are owners thereof, or in anywise interested therein; that no assignment or transfer of the same, or any part thereof, or interest therein, has been made, except as stated in the petition; and that the claimant is justly entitled to the amount claimed therein from the state after allowance of all just credits and set-offs. The petition shall be verified as now required in civil actions in the district courts. SEC. 1108. [Summons-Service.]--SEC. 3. Summons shall issue upon the filing of such petition, and shall be served upon the state by the sheriff of the county in which the petition may be filed, by serving the same upon the governor and attorney general; and in any action, the subject matter of which, in whole or in part, relates to or grew out of the conduct of any special department or institution of the government, summons shall also be served by such sheriff, upon the chief officer of such department or institution, and the return day thereof shall be as now provided by law in other actions in the district courts.
11 Neb. 464. 15 Id. 666.
SECS. 1104, 1105. Being sections 4 and 5 of Laws 1867 p. 71. The first section amended sec. 2. The second section repealed secs. 2, 87, and Title 24. The third section amended sec. 87. The sixth section proSee also 3 Neb. 453. 4 Neb. 569. 6 vided for appeals to supreme court but was repealed 1871, p. 113. Neb. 84. SECS. 1106-1122. "An act to provide in what courts the state may sue and be sued." 1877, 19. Construction of act. 7 Neb. 89, 108, 109, 113. 8 Neb. 218.