SEC. 37. [Cases in which judge is disqualified.]-A judge or justice is disqualified from acting as such, except by mutual consent of parties, in any case wherein he is a party, or interested, or where he is related to either party by consanguinity or affinity within the fourth degree, or where he has been attorney for either party in the action or proceeding, and such mutual consent must be in writing and made a part of the record.

SEC. 38. [Business on Sunday.]-No court can be opened, nor can any judicial business be transacted, on Sunday, or on any legal holiday, exceptI. To give instructions to a jury then deliberating on their verdict. II. To receive a verdict, or discharge a jury. III. To exercise the powers of a single magistrate in a criminal proceeding.

SEC. 39. [Jurisdiction at chambers.]--A judge of the district court may sit at chambers anywhere within his district for the purpose of,-1. Granting. dissolving, or modifying temporary injunctions. 2. Confirming judicial sales. 3. Discharging attachments. 4. Hearing proceedings in "aid of execution." 5. Hearing application for sale of personal property held under attachment. 6. Hearing application for the appointment of a receiver or to discharge one already appointed, or to modify the order appointing one. 7. Hearing an application for additional security. 8. Hearing an application for mandamus or habeas corpus. 9. To discharge such other duties or to exercise such other powers as may be conferred upon a judge in contradistinction to a court. 10. For the purpose of receiving a plea of "guilty" from any person charged with a felony, and passing sentence thereon, upon reasonable notice to the prosecuting attorney.

SEC. 40. [Same.]—In hearing any matters mentioned in subdivisions 2, 3, 4, 5 and 7, of the preceding section, the same shall be had in the county where the action is pending or the property is situated.

SEC. 41. [Court commissioner.]-The judge of each judicial district shall appoint some suitable person in each county of his district as a court commissioner, who shall hold his office during the pleasure of such judge. Such commissioner must be an attorney at law in good standing, and must have been engaged in practice as such attorney at least five years, and have practiced in this state at least two years. He shall, before entering upon the duties of his office. give a bond and take the oath of office required by law to be given and taken by county judges; and shall receive the same fees for like services. He shall perform such duties and exercise such powers as are imposed or conferred upon him by the laws of the state.

SEC. 42. [Terms of court.]-The judges of the district court shall, on the first day of January of each year, fix the time of holding terms of court in the counties composing their respective districts, during the ensuing year, and cause the same to be published throughout the district, if the same can be done without expense. The clerk of each district court shall note on the bar docket of each term the time so fixed for holding court in his county. The terms shall be so fixed as not to conflict with the time fixed by rules of the supreme court for the hearing of causes therein from said district. The clerk of the supreme court shall, before the first day of January of each year, notify each district judge of the times fixed by the supreme court for the hearing of causes from his district. All terms of the district court shall be held at the county seat in the court house, or other place provided by the county board.

SEC. 43. [Deputy clerks.]-The clerk of the supreme court, and of the several district courts in this state, shall have power to appoint deputies; and deputies of the district clerks, shall be residents of the counties in and for which they act. Such deputies shall be sworn faithfully to perform the duties of their office, before they enter upon those duties.

SEC. 44. [Clerks liable for official acts of deputies.]—Every clerk

SEC. 39. The judges have no jurisdiction under this section to issue writs of mandamus in vacation. 10 Neb. 476. But see sec. 55.

ppointing a deputy under the provisions of this chapter, shall be liable for all he official acts of said deputy clerk.

SEC. 45. [Short-hand reporter.]-There shall be appointed within nd for each of the judicial districts of this state by the district judge, a stenoraphic reporter who shall be well skilled in the art of stenography, and capable f reporting the oral proceedings, had in court, verbatim.

SEC. 46. [Oath and salary.]-The said reporter shall take the oath reuired to be taken by judicial officers, shall hold his office during the pleasure of he district judge, and receive an annual salary of $1,500, to be paid by the state s the salary of other officers is paid.

SEC. 47. [Duties.]-The said reporter shall attend all terms of the district. ourt held within and for the district for which he is appointed, and shall make a tenographic report of all oral proceedings had in such court, including the testinony of witnesses, with the questions to them, verbatim, and any further proceedings or matter when directed by the presiding judge so to do; but the parties nay, with the consent of the judge, waive the recording by such reporter of any part of the proceedings herein required to be taken;-this shall not include arguments to the jury. And whenever during the progress of the cause, any question arises as to the admissibility or rejection of evidence or any other matter causing an argument to the court, such argument shall not be recorded by the reporter, but he shall briefly note the objection made and the ruling of the court thereon, and any exceptions taken by either party to such ruling.

SEC. 48. [Office.]-The said reporter shall keep and maintain an office within the district for which he shall be appointed, and shall keep and preserve in his said office all stenographic reports made by him as in this subdivision required. Such records shall be the property of the state, and upon the termination of his office the said reporter shall deliver the same to his successor in office. SEC. 49. [Duties.-It shall be the duty of such reporter to furnish, on the application of the district attorney or any party to a suit in which a stenographic record of proceedings has been made, a long-hand copy of the proceedings so recorded, or any part thereof, for which he shall be entitled to receive, in addition to his salary, a fee of five cents per hundred words, to be paid by the party requesting the same, except where such copy is required by the district attorney on the part of the state, in which case the reporter shall furnish such copy without the payment of any fee; Provided also, That in all criminal cases, wherein after conviction, the defendant shall make an affidavit that he is unable, by reason of his poverty, to pay for such copy, the court or judge thereof may, by order indorsed on such affidavit, direct the reporter to make such copy without the payment of any fee. It shall be the duty of the reporter to deliver such long-hand copy of the proceedings therein, within forty days from the final adjournment of the term at which the judgment is rendered, to the party demanding it.

SEC. 50. [Repealed Chap. 13 R. S. 48; Laws 1877, 116, 205 and all acts inconsistent with provisions of this act, except Laws 1875, 76.] SEC. 51. [Provided for act to take effect March 1, 1879.]

INSTRUCTIONS TO JURIES.

SEC. 52. [To be in writing.-It shall be the duty of the judges of the several district courts, in all cases, both civil and criminal, to reduce their charge or instructions to the jury to writing, before giving the same to the jury, unless the so giving of the same is waived by the counsel in the case in open court, and so entered in the record of said case; and either party may request instructions

SEC. 49. The proviso was not in the original section (1877, 159), and it was held that even one convicted of a felony must pay for a transcript if required by the reporter, notwithstanding the bill of rights (sec. 23), which ys that: "the writ of error shall be a writ of right in all cases of felony." 8 Neb. 23. If a party is deprived of transcript by fault of the reporter so that he is thereby deprived of his bill of exceptions the court will in a per case grant him a new trial. 10 Neb. 451. SECS. 52-56. "An act to amend section 58, chapter fourteen, General Statutes." Laws 1875, 76. Took Feet April 1.1875. See see. 50. See also note to sec. 283, civil code.

to the jury on points of law, which shall be given or refused by the court. ¡ instructions asked shall be in writing. [1875 § 1, 76.]

SEC. 53. [Modifications.]—-If the court refuse a written instruction demanded, but give the same with a modification, which the court may such modification shall not be by interlineation or erasure, but shall be w defined, and shall follow some such characterizing words as "changed thu which words shall themselves indicate that the same was refused as demande [Id. § 2.]

SEC. 54. [Instructions read over.]-The court must read over all t instructions which it intends to give, and none others, to the jury, and m announce them as given, and shall announce as refused, without reading to t jury, all those which are refused, and must write the words "given" or "refuset as the case may be, on the margin of each instruction. [Id. § 3.]

SEC. 55. To be numbered.]-If the giving or refusal be excepted to, t same may be without any stated reason therefor, and all instructions demande as well as all instructions given to the jury by the court on its own motion, m be plainly and legibly written in consecutively numbered paragraphs, and filed the clerk before being read to the jury by the court; and such instructions sh be preserved as part of the record of the cause in which they were given. [Id.§ SEC. 56. [Oral explanation.]-No oral explanation of any instruct authorized by the preceding sections shall, in any case, be allowed, and a instruction or charge, or any portion of a charge or instructions given to the ju by the court and not reduced to writing as aforesaid, or a neglect or refusal the part of the court to perform any duty enjoined by the preceding sections, sh be error in the trial of the case, and sufficient cause for the reversal of the ju ment rendered therein. [Id. § 5.]

SEC. 57. (Jurisdiction at chambers.]-That any judge of the distri court may sit at chambers, at any time and place within his judicial district, a while so sitting shall have the power-1. To grant, dissolve or modify temporat injunctions. 2. To discharge attachments. 3. To hear and determine applie tion for writ of mandamus, and applications for writ of habeas corpus. 4.1 discharge such other duties, or to exercise such other powers, as may be co ferred upon a judge in contradistinction to a court. 5. To receive a plea "guilty" from any person charged with a felony and passing sentence there upon reasonable notice to the prosecuting attorney. [1881 § 1, chap. 46.]

CHAPTER 20.-COURTS-PROBATE (COUNTY).

SECTION 1. [Court.]-That there is hereby established, in each organiz county in this state, a probate court which shall be held at the county seat by t probate judge of such county, and shall be a court of record. Such court shall deemed to be always open, and any cause, matter or proceeding may be procee ed with therein at any time after the giving of notice or service of process in t mode prescribed by law. And the proceedings and determinations of such cou heretofore had or made in any cause, matter or proceeding, at any time oth than at a regular term of such court, as heretofore prescribed by law, shall be

*SECS. 1-37. "An act concerning the organization, forms, and jurisdiction of probate courts." G. S. Took effect Mar. 3, 1873. By Const., Art. XVI, sec. 15, county courts are made the successors of probs courts. 9 Neb. 265. SEC. 54. When instructions are requested which are substantially the same as those already given it not error to refuse them. And under this section it is not error for the court to fail to give the reason for su refusal. 7 Neb. 344.

SEC. 55. The right given by this section will be regarded as waived, when the charge is not excepted or when exception is taken to a particular clause only. 4 Neb. 288. But in case of felony if it appear that t charge had a tendency to prejudice the accused under any state of facts, a new trial will be granted although exception is taken. 4 Neb. 530. 9 Neb. 302.

SEC. 56. Although an oral charge be given, the supreme court will not consider it "error in the trial the case" unless the attention of the court below has been called to it in the motion for a new trial. 4 Neb 4 And a neglect to mark instructions as provided in sec. 52 must also be excepted to at the time and attention court called thereto in motion for new trial or the error will be waived. 10 Neb. 443.

SEC. 57. "An act to give the several judges of the judicial districts of Nebraska, certain powers when s ting in chambers anywhere within their respective judicial districts." Approved March 2. Took effect June 1881.

and effectual, for all purposes, as if had or made at such regular term. [G. 263.] 3C. 2. Jurisdiction.]-Probate judges in their respective counties shall and exercise the ordinary powers and jurisdiction of a justice of the and shall, in civil cases, have concurrent jurisdiction with the district court ivil cases in any sum not exceeding five hundred dollars, exclusive of costs, actions of replevin where the appraised value of the property does not that sum, and the provisions of the code of civil proceedure, relative to s of the peace, shall, where no special provision is made by this subdivisply to the proceedings in all civil actions prosecuted before said probate ;Provided, That probate courts shall not have jurisdiction: I. In any for malicious prosecution. II. In any action against officers for miscon1 office, except where like proceeding can be had before justices of the III. In actions for slander and libel. IV. In actions upon contracts sale of real estate. V. In any matter wherein the title or boundaries of ay be in dispute, nor to order or decree the sale or partition or [of] real [Const., Art. VI. § 16.]

c. 3. [Original jurisdiction.]-The courts of probate in their respecunties, shall have exclusive jurisdiction of the probate of wills, the adminn of estates of deceased persons, and the guardianship of minors, insane , and idiots; Provided, No judge of probate shall act in any case or matre he is next of kin to the deceased, nor where he is legatee or devisee will, nor where he is named as executor or trustee in a will, or is one of scribing witnesses thereto, nor where he is related to any party in interest, case before him, by consanguinity or affinity, or has such an interest thereuld exclude him from acting as a juror in such case or matter, nor where leted as attorney or counsel in any case or matter before him.

1. 4. Powers.]—They shall have power: I. To hear and determine nd set-offs in the matter of estates of deceased persons. II. To hear and ne questions of application for, and to grant and issue letters of administestamentary, and of guardianship, and revoke the same. III. To take ate of wills. IV. To cause to be taken, to receive, file, and record all ies, sale, and appraisement bills of the estates of deceased persons. V. ire executors, administrators, and guardians to exhibit and settle their 3, and account for the estates and property that have come into their posas such. VI. To appoint commissioners to partition personal estate. › authorize guardians to sell and convey or mortgage the personal estate wards, to provide for their wants, education, and support.

5. Bonds of executor, etc.]-If it shall appear to any such court, by ication, under oath, of any party interested in the bond of any executor, rator, or guardian appointed by such court, that there is reasonable to the solvency or sufficiency of the securities upon any such bond, such all cause such executor, administrator, or guardian, to be ordered to show y he shall not execute a new bond in the premises, with surety to be by such court, as provided by law.

6. [Same.]—If, upon the hearing of any such matter, the court shall new bond with sureties, and such executor, administrator, or guardian to comply with the order of the court, he shall be removed from his said

The dismissal of actions is governed by the rules applicable to cases commenced before justices of 6 Neb. 148.-County courts have jurisdiction of actions for the forcible entry and detention of real Neb. 151.-In the granting of new trials jurisdiction is the same and no greater than that given to he peace viz: only when the judge is satisfied that the verdict was obtained by fraud, partiality or 6 Neb. 302.-A county judge has the ordinary powers and jurisdiction of a justice of the peace, tion before him, under such jurisdiction when the plaintiff claims $50, but recovers only $15, he is osta. 9 Neb. 263. By amendment to sec. 1103 civil code justices of peace have jurisdiction not 200-The county court is not competent to naturalize aliens. 7 Neb. 471.-A change of venue canfrom county count to a justice of the peace. 10 Neb. 439. A judgment in a case wherein the court tion, unappealed from, and where no exceptions were taken on the trial, and same does not appear y to be unsupported by the petition or bill of particulars, is conclusive. 10 Neb. 578. An order allowing an account against an estate may be reviewed on error in the district court. 10

trust, and his letters revoked, and another executor, administrator or guardian, as the case may be, appointed in his place.

SEC. 7. [Terms of court.]-It shall be the duty of the probate judge in each county, to hold a regular term of the probate court at his office at the county seat, commencing at nine o'clock A. M., on the first Monday of each calander month, for the trial of such civil actions brought before such court, as are not cognizable before a justice of the peace. Such regular term shall be deemed to be open without any formal adjournment thereof, until the third Monday of the same month, when all causes not then finally determined shall be continued by such court to the next regular term; but such courts shall be deemed to be always open for the filing of papers and issuance of process in civil actions, and for the purpose of taking and entering judgment by confession.

SEC. 8. [Proceedings.]-In all cases commenced in said courts wherein the sum exceeds one hundred dollars, it shall be the duty of the probate judge to issue a summons, returnable on the first day of the next term of said court, if there be ten days intervening between the issuance of the summons and the first day of the term, and if not then to be made returnable on the first day of the next term thereafter, which summons shall be directed and delivered to the sheriff or any constable of said county, and the sheriff or constable shall serve the same upon the defendant as in other civil cases, at least ten days before the return day thereof. When the summons has not been served ten days before the first day of the term, the cause shall stand continued until the next regular term of said court, and shall then stand for trial, without further notice to the defendant.

SEC. 9. [Actions in replevin.]--In all actions of replevin, the summons shall be in like form, and be returnable within the like time as in similar actions before justices of the peace, but if upon a return of the writ, it appear that the appraised value of the property taken thereon exceeds one hundred dollars, and does not exceed five hundred dollars, such action shall stand continued, as of course, to the next regular term of said court, and shall then be disposed of as ⚫ other causes during such term; but if it appears that the appraised value of the property in such action exceeds five hundred dollars, then such action, on the return of the writ, shall be forthwith certified to the district court.

SEC. 10. [Bill of particulars.]-In all civil actions in the probate court where the amount claimed exceeds one hundred dollars, the plaintiff, his agent or attorney shall, before the summons is issued therein, file in such court a bill of particulars, setting forth, in ordinary and concise language, his demands; and the defendant shall also, on or before the first day of the term at which the cause stands for trial, file in such court his answer containing any set-off or other de fense he may have. Such bill of particulars shall be verified in like manner as a petition is required to be verified in the district court, and when so verified, no other or greater proof shall be required to entitle the plaintiff to judgment upon default, than in actions in the district court.

SEC. 11. [Pleadings.]—In actions before said court, where the amount claimed exceeds one hundred dollars, motions and demurrers shall be allowed, and the rules of practice concerning pleadings and processes in the district court shall be applicable, so far as may be, to pleadings in the probate court.

SEC. 12. [Default.]-If no answer is filed on or before the first day of the

SEC 7 The record of a judgment rendered under this section need not show that a regular term had commenced and continued from day to day until the rendition of the judgment. It is sufficient if the proceedings show that the court was in session at the time. 3 Neb. 228.-The jurisdiction given by this and following sections is distinct, as to the amounts authorized to be recovered. from that of a justice of the peace. 5 Neb. 99. Where the amount claimed exceeds one hundred dollars but the verdict is less the plaintiff cannot recover costs. Id. Aliter, where the amount claimed is $50 and recovery is for less 9 Neb. 263. The plaintiff may at any time before a cause is submitted dismiss it on his own motion and a failure to pay costs does not debar him of this right. 6 Neb. 148 -A judgment thus-"judgment decreed in favor of plaintiff in sum of”—and costs-is sufficient 7 Neb. 479.-This section does not prevent the court from rendering judgments by confession or hearing and deciding cases by agreement, at any time during the month. 9 Neb, 278 394.-The amendment of & petition in open court by leave of court does not have the effect of extending the time for answering. 8 Neb. 144. -The term continues to and includes the third Monday. 10 Neb. 529.

SEC 9. The summons in actions of replevin should be made returnable not more than 11 days from the date. 9 Neb. 108