reglab/statecodes huggingface dataset:
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1923 - Appeal; original bill of exceptions; return to district court; disposition.

25-1923.
Appeal; original bill of exceptions; return to district court; disposition.
When any case or proceeding in which the record or transcript has been so made up has been finally determined in the Court of Appeals or Supreme Court, the original bill or bills of exceptions shall be by the Clerk of the Supreme Court transmitted to the clerk of the district court from which such case or proceeding was removed. It shall be the duty of the clerk of the district court to preserve such bill or bills of exceptions in the files of the office for a period of ten years from the time of receipt from the Clerk of the Supreme Court. After the lapse of such time, if the record in the district court does not show any unfinished matter pending in the case and upon such notice as the district court may direct, such bill or bills of exceptions may be removed from the files and disposed of in any way that the judge of the district court directs when approval is given by the State Records Administrator pursuant to the Records Management Act.
Source
Laws 1881, c. 28, § 3, p. 205;
R.S.1913, § 8196;
C.S.1922, § 9148;
C.S.1929, § 20-1923;
Laws 1941, c. 34, § 1, p. 44;
C.S.Supp.,1941, § 20-1923;
R.S.1943, § 25-1923;
Laws 1969, c. 105, § 7, p. 482;
Laws 1991, LB 732, § 59.
Cross References
Records Management Act, see section 84-1220.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1924 - Appeal; original bill of exceptions; return to appellate court if rehearing allowed.

25-1924.
Appeal; original bill of exceptions; return to appellate court if rehearing allowed.
In the event a rehearing of any such cause or proceeding is allowed by the Court of Appeals or Supreme Court or if for any other reason the appellate court needs or desires the use of such original bill or bills of exceptions or testimony in equity and law cases, it may order the return of the same to it, and it shall be the duty of the clerk of the court in whose custody the same may be to transmit the same to the Clerk of the Supreme Court upon being personally served with a copy of such order of the appellate court, duly certified under the seal of the appellate court. The expense of the transmittal of such bills and testimony and the costs made in recording, certifying, and serving such order shall be taxed to the unsuccessful party to such suit or proceeding unless the appellate court orders otherwise. The party at whose instance such expense of transmittal is to be made shall advance the same to the clerk if required by him or her. Service of the certified copy of the order may be made by any person. If done by the sheriff of any county, his or her official return shall be sufficient evidence of the fact of service. If by any other person, the service shall be sufficiently proved by his or her affidavit to the fact.
Source
Laws 1885, c. 96, § 4, p. 379;
R.S.1913, § 8197;
C.S.1922, § 9149;
C.S.1929, § 20-1924;
R.S.1943, § 25-1924;
Laws 1991, LB 732, § 60.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1927 - Original cause in Supreme Court; complete record upon final determination; waiver.

25-1927.
Original cause in Supreme Court; complete record upon final determination; waiver.
A complete record of every original cause in the Supreme Court, as soon as it is finally determined, shall be made by the clerk of such court, unless both parties shall declare in open court, at the term at which the final order or judgment shall be made or hearing had, their agreement that no record shall be made.
Source
G.S.1873, c. 57, § 12, p. 713;
Laws 1899, c. 86, § 1, p. 342;
R.S.1913, § 8200;
C.S.1922, § 9152;
C.S.1929, § 20-1927;
R.S.1943, § 25-1927.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1928 - Appeal; mistake of clerk; effect; procedure.

25-1928.
Appeal; mistake of clerk; effect; procedure.
A mistake, neglect or omission of the clerk shall not be a ground of error, until the same has been presented and acted upon in the court in which the mistake, neglect or omission occurred.
Source
R.S.1867, Code § 597, p. 500;
R.S.1913, § 8201;
C.S.1922, § 9153;
C.S.1929, § 20-1928;
R.S.1943, § 25-1928.
Annotations
Clerk's mistake, neglect, or omission in entering judgment on verdict is not ground of error until presented and acted upon in court in which it occurred. Crete Mills v. Stevens, 120 Neb. 794, 235 N.W. 453 (1931).
Section applied to error in inserting erroneous answer day in summons in county court. Ley v. Pilger, 59 Neb. 561, 81 N.W. 507 (1900).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1929 - Appeal; remittitur; effect.

25-1929.
Appeal; remittitur; effect.
Whenever the court shall direct a remittitur in any action, and the same is made, and the party for whose benefit it is made shall appeal said action, then the party remitting shall not be barred from maintaining that the remittitur should not have been required either in whole or in part.
Source
Laws 1915, c. 247, § 1, p. 567;
C.S.1922, § 9154;
C.S.1929, § 20-1929;
R.S.1943, § 25-1929.
Annotations
Where interest before judgment is not prayed for as an element of damages, action of trial court in ordering remittitur will not be disturbed upon ground that party was entitled to interest upon claim before judgment. Welch v. Reeves, 142 Neb. 171, 5 N.W.2d 275 (1942).
Where recovery is had upon cause of action for wrongful death and also for cause of action for pain and suffering sustained by the deceased until his death and for medical and burial expenses, remittitur ordered by trial court of lump sum from verdict was treated as applying to latter cause of action. Vanderlippe v. Midwest Studios, 137 Neb. 289, 289 N.W. 341 (1939).
Request to restore amount remitted was denied in negligence case. Banta v. McChesney, 127 Neb. 764, 257 N.W. 68 (1934).
Where trial court ordered remittitur cutting verdict by half, Supreme Court will vacate that portion of remittitur which is excessive. Mangiameli v. Ariano, 126 Neb. 629, 253 N.W. 871 (1934).
Where issues of fact are controverted and findings of jury under the court's instructions warrant recovery, trial court may not require successful party to file remittitur of such recovery. Loy v. Storz Electric Refrigeration Co., 122 Neb. 357, 240 N.W. 423 (1932).
Supreme Court may reduce amount of remittitur ordered by the district court. Christoffersen v. Weir, 110 Neb. 390, 193 N.W. 922 (1923); Miller v. Central Taxi Co., 110 Neb. 306, 193 N.W. 919 (1923).
Order requiring remittitur resting on substantial basis in the evidence will not be reversed. Hellerich v. Central Granaries Co., 104 Neb. 818, 178 N.W. 919 (1920).
Where not convinced that trial court erred in requiring remittitur, order will not be disturbed. Chicago & N. W. Ry. Co. v. Queenan, 102 Neb. 391, 167 N.W. 410 (1918); Wunrath v. Peoples Furniture & Carpet Co., 100 Neb. 539, 160 N.W. 971 (1916).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1930 - Civil cases; writs of error abolished.

25-1930.
Civil cases; writs of error abolished.
Writs of error 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 formerly had under writs of error.
Source
R.S.1867, Code § 599, p. 500;
R.S.1913, § 8202;
C.S.1922, § 9155;
C.S.1929, § 20-1930;
R.S.1943, § 25-1930;
Laws 1991, LB 732, § 63.
Annotations
Writ of prohibition was not abolished by this section. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).
Effect of abolishment of writ of certiorari stated. Engles v. Morgenstern, 85 Neb. 51, 122 N.W. 688 (1909); Mathews v. Hedlund, 82 Neb. 825, 119 N.W. 17 (1908); Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb. 520, 57 N.W. 161 (1893).
Supreme Court may order court to send up perfect transcript but cannot order amendment of record. Thompson & Sons Mfg. Co. v. Nicholls, 52 Neb. 312, 72 N.W. 217 (1897).
Order entered in habeas corpus proceedings may be reviewed on error. In re Van Sciever, 42 Neb. 772, 60 N.W. 1037 (1894).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1932 - Judgment prematurely rendered as error.

25-1932.
Judgment prematurely rendered as error.
Rendering judgment before the action stood for trial, according to the provisions of this code, shall be deemed a clerical error.
Source
R.S.1867, Code § 598, p. 500;
R.S.1913, § 8204;
C.S.1922, § 9157;
C.S.1929, § 20-1932;
R.S.1943, § 25-1932.
Annotations
Premature default and forfeiture of bail bond on morning of day defendant was required to appear is not jurisdictional defect and became final after term. State v. Ingoldsby, 111 Neb. 787, 197 N.W. 960 (1924).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1933 - Costs; how taxed.

25-1933.
Costs; how taxed.
When a judgment, decree or final order is reversed, vacated or modified, the court may render judgment for all costs against the appellee or appellees or some of them, or may direct that each party pay his own costs or apportion the costs among parties or direct that judgment for costs abide the event of a new trial as, in its discretion, the equities of the cause may require.
Source
Laws 1907, c. 162, § 5, p. 496;
R.S.1913, § 8205;
C.S.1922, § 9158;
C.S.1929, § 20-1933;
R.S.1943, § 25-1933.
Annotations
Upon modification of judgment, Supreme Court is authorized to apportion costs. Metropolitan Utilities Dist. v. City of Omaha, 171 Neb. 609, 107 N.W.2d 397 (1961).
Costs can only be taxed against parties to the litigation. Ludwig v. Board of County Commissioners of Sarpy County, 170 Neb. 600, 103 N.W.2d 838 (1960).
Where appellant obtained reversal in part, all costs in Supreme Court could be taxed to appellee. Ricenbaw v. Kraus, 157 Neb. 723, 61 N.W.2d 350 (1953).
On reversal, Supreme Court may tax costs as the equities of the cause require. Stocker v. Wells, 155 Neb. 472, 52 N.W.2d 284 (1952).
When a judgment is reversed on appeal to Supreme Court, the court in its discretion may render judgment for all costs in favor of one party, direct each party to pay his own costs, apportion the costs among the parties, or direct that costs abide the event of a new trial. Rehn v. Bingaman, 152 Neb. 171, 40 N.W.2d 673 (1950).
If appellant seeks reversal and appellee consents thereto, Supreme Court will ordinarily tax costs to appellee. In re Estate of Simon, 149 Neb. 382, 31 N.W.2d 231 (1948).
Interest on amount paid for bill of exceptions is not allowable as costs until entry of mandate on appeal. Nemaha Valley Drainage Dist. No. 2 v. Stocker, 95 Neb. 663, 146 N.W. 936 (1914).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1934 - Money judgment; enforcement notwithstanding supersedeas; undertaking required.

25-1934.
Money judgment; enforcement notwithstanding supersedeas; undertaking required.
In an action arising on contract for the payment of money only, notwithstanding the execution of an undertaking to stay proceedings, if the defendant in error or appellee give adequate security to make restitution in case the judgment is reversed or modified, he may upon leave obtained from the court below, or a judge thereof in vacation, proceed to enforce the judgment. Such security must be an undertaking executed to the plaintiff in error by at least two sufficient sureties, to the effect that if the judgment be reversed or modified, he will make full restitution to the plaintiff in error or appellee of the money by him received under the judgment.
Source
R.S.1867, Code § 591, p. 498;
R.S.1913, § 8206;
C.S.1922, § 9159;
C.S.1929, § 20-1934;
R.S.1943, § 25-1934.
Annotations
Defendant's payment of judgment to avoid sale of his property on execution will not deprive him of right to appeal. Burke v. Dendinger, 120 Neb. 594, 234 N.W. 405 (1931).
Unless appellee has given bond, he cannot plead judgment as set off to another action. Spencer v. Johnston, 58 Neb. 44, 78 N.W. 482 (1899).
If appellee gives bond and has leave to enforce, appellant cannot enjoin. Bodewig v. Standard Cattle Co., 56 Neb. 217, 76 N.W. 580 (1898).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1935 - Opinion of appellate court; certified to clerk of district court.

25-1935.
Opinion of appellate court; certified to clerk of district court.
It shall be the duty of the Clerk of the Supreme Court immediately upon the entering of a judgment by the Court of Appeals or Supreme Court to certify without cost a copy of the opinion of the court to the clerk of the district court from which the appeal was prosecuted.
Source
Laws 1933, c. 39, § 1, p. 245;
C.S.Supp.,1941, § 20-1935;
R.S.1943, § 25-1935;
Laws 1991, LB 732, § 64.
Annotations
Opinion of Supreme Court, duly certified, must be filed in the case in the trial court. Equitable Life Assur. Soc. v. Gillan, 70 F.Supp. 640 (D. Neb. 1945).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1936 - Order of remittitur deemed a final order.

25-1936.
Order of remittitur deemed a final order.
Whenever in any action at law in the district court a verdict of the jury has been returned for the recovery of money and the court orders a remittitur by the prevailing party of a part of the amount of such verdict, either as a condition to allowing the verdict so reduced to stand or otherwise, such order of remittitur shall be deemed a final order from which such party may prosecute an appeal to the Court of Appeals. The provisions of this section shall not in any manner affect the rights of parties on appeal as provided for in section 25-1929.
Source
Laws 1937, c. 45, § 1, p. 190;
C.S.Supp.,1941, § 20-1936;
R.S.1943, § 25-1936;
Laws 1991, LB 732, § 65.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1937 - Appeals; general procedure.

25-1937.
Appeals; general procedure.
When the Legislature enacts a law providing for an appeal without providing the procedure therefor, the procedure for appeal to the district court shall be the same as for appeals from the county court to the district court in civil actions. Trial in the district court shall be de novo upon the issues made up by the pleadings in the district court. Appeals from the district court to the Court of Appeals shall be taken in the same manner provided by law for appeals from the district court in civil cases. This section shall not apply if the Administrative Procedure Act otherwise provides.
Source
Laws 1963, c. 138, § 1, p. 515;
Laws 1988, LB 352, § 26;
Laws 1991, LB 732, § 66.
Cross References
Administrative Procedure Act, see section 84-920.
Annotations
When a decision regarding a conditional use or special exception permit is appealed under section 23-114.01(5) and a trial is held de novo under this section, the findings of the district court shall have the effect of a jury verdict and the court's judgment will not be set aside by an appellate court unless the court's factual findings are clearly erroneous or the court erred in its application of the law. Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664 (2020).
Subsection (5) of section 23-114.01 provides for a right of appeal to the district court from a decision by the county planning commission or county board of commissioners or supervisors, without setting forth any procedure for prosecuting the appeal. Therefore, the appeal procedure in this section is also implicated. In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).
This section provides for appeal when a statute confers the right to appeal but fails to prescribe the procedure. Hawkins v. City of Omaha, 261 Neb. 943, 627 N.W.2d 118 (2001).
This section provides the procedure for appeal when a statute confers a right to appeal, but fails to prescribe the procedure therefor. Prucha v. Kahlandt, 260 Neb. 366, 618 N.W.2d 399 (2000).
This section and others cited provide for appeals from action of county superintendent in school reorganization case. Schroeder v. Oeltjen, 184 Neb. 8, 165 N.W.2d 81 (1969).
Remedy by appeal under this section is not exclusive. Moser v. Turner, 180 Neb. 635, 144 N.W.2d 192 (1966).
This section provides the procedure for appeal when right of appeal is given but procedure is not provided. School Dist. of Wilbur v. Pracheil, 180 Neb. 121, 141 N.W.2d 768 (1966).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2004 - District court judgment; grounds for vacation or modification; determination.

25-2004.
District court judgment; grounds for vacation or modification; determination.
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.
Source
R.S.1867, Code § 605, p. 501;
R.S.1913, § 8210;
C.S.1922, § 9163;
C.S.1929, § 20-2004;
R.S.1943, § 25-2004.
Annotations
Court should not try out merits of controversy at same time it determines whether or not a valid cause of action or defense has been presented. Miller v. Schlereth, 151 Neb. 33, 36 N.W.2d 497 (1949).
Attempt of county court to vacate judgment in civil action after term, without notice, was void. Stone v. Jensen, 118 Neb. 254, 224 N.W. 284 (1929).
Court should hear evidence on petition to vacate before entry of order. Trimble & Blackman v. Corey & Son, 78 Neb. 639, 111 N.W. 376 (1907).
General finding is sufficient in absence of request for special findings. Anthony & Co. v. Karbach, 64 Neb. 509, 90 N.W. 243 (1902).
It is not necessary to tender an answer with a motion to vacate. Fisk v. Thorp, 60 Neb. 713, 84 N.W. 79 (1900).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2005 - District court judgment; vacation; existence of valid claim or defense a prerequisite; preservation of liens upon modification.

25-2005.
District court judgment; vacation; existence of valid claim or defense a prerequisite; preservation of liens upon modification.
A judgment shall not be vacated on motion or complaint, 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 when a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment.
Source
R.S.1867, Code § 606, p. 501;
R.S.1913, § 8211;
C.S.1922, § 9164;
C.S.1929, § 20-2005;
R.S.1943, § 25-2005;
Laws 2002, LB 876, § 29.
Annotations
Prerequisite to vacation of judgment is showing of valid defense. Gasper v. Mazur, 157 Neb. 857, 62 N.W.2d 117 (1954).
Plaintiff seeking vacation of judgment after term must allege and prove valid cause of action. Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98 (1933).
Court must adjudge that cause of action is prima facie valid before it is authorized to take action on motion. Gavin v. Reed, 73 Neb. 237, 102 N.W. 455 (1905).
Mere showing of want of service of summons is not sufficient. Baldwin v. Burt, 54 Neb. 287, 74 N.W. 594 (1898).
Party seeking to vacate judgment after term must plead and prove valid cause or defense. Gilbert v. Marrow, 54 Neb. 77, 74 N.W. 420 (1898).
"Adjudged" means judicially determined. Western Assur. Co. of Toronto v. Klein, 48 Neb. 904, 67 N.W. 873 (1896).
Applicant must allege and prove valid defense or cause of action. Bond v. Wycoff, 42 Neb. 214, 60 N.W. 564 (1894).
Motion to vacate must be accompanied by answer. McBrien v. Riley, 38 Neb. 561, 57 N.W. 385 (1894).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2006 - District court judgment; proceedings to vacate or modify; injunction.

25-2006.
District court judgment; proceedings to vacate or modify; injunction.
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.
Source
R.S.1867, Code § 607, p. 502;
R.S.1913, § 8212;
C.S.1922, § 9165;
C.S.1929, § 20-2006;
R.S.1943, § 25-2006.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2007 - District court judgment; rendition before action regularly stood for trial; rights of defendant; no showing of valid defense required.

25-2007.
District court judgment; rendition before action regularly stood for trial; rights of defendant; no showing of valid defense required.
When the judgment was rendered before the action stood for trial, the suspension may be granted as provided in section 25-2006, 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.
Source
R.S.1867, Code § 608, p. 502;
R.S.1913, § 8213;
C.S.1922, § 9166;
C.S.1929, § 20-2007;
R.S.1943, § 25-2007.
Annotations
Notice required by this section only applies when a default is to be taken in chambers. Frazier, Inc. v. Alexander, 183 Neb. 451, 161 N.W.2d 505 (1968).
Where trial court vacated order of confirmation but did not set aside sale, return of purchase money was not warranted. Enquist v. Enquist, 146 Neb. 708, 21 N.W.2d 404 (1946).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2009 - Supreme Court, Court of Appeals, and county court judgments; laws applicable.

25-2009.
Supreme Court, Court of Appeals, and county court judgments; laws applicable.
The provisions of Chapter 25 shall apply to the Supreme Court, Court of Appeals, and county 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 county court shall, for such purpose, be considered as holding, in each year, a regular term of court commencing on January 1.
Source
R.S.1867, Code § 610, p. 502;
R.S.1913, § 8215;
C.S.1922, § 9168;
C.S.1929, § 20-2009;
Laws 1941, c. 30, § 1, p. 139;
C.S.Supp.,1941, § 20-2009;
R.S.1943, § 25-2009;
Laws 2006, LB 1115, § 17.
Annotations
1. Power
2. Procedure
3. Miscellaneous
1. Power
A county court in the exercise of its probate jurisdiction is not bound by the statute which fixes its terms within which its jurisdiction in civil cases must be exercised. In re Estate of Reikofski, 144 Neb. 735, 14 N.W.2d 379 (1944).
County court has power to vacate order in probate proceedings at subsequent term. In re Estate of Sheerer, 137 Neb. 374, 289 N.W. 529 (1940).
County court cannot vacate or modify judgment in civil cases beyond jurisdiction of justice after monthly term except as provided by statute. Stone v. Jensen, 118 Neb. 254, 224 N.W. 284 (1929).
Justices and county courts exercising justice jurisdiction are not empowered to vacate judgment after time to appeal has expired, nor to vacate fraudulent judgment after term. Carlson v. Ray, 104 Neb. 18, 175 N.W. 886 (1919).
County court may vacate probate procured by fraud and permit contest of will. In re Estate of Kelly, 103 Neb. 513, 172 N.W. 758 (1919), rehearing denied 103 Neb. 524, 175 N.W. 653 (1919).
The county court may correct clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission by issuing an order nunc pro tunc as provided in section 25-2001(3). State v. Ziemann, 14 Neb. App. 117, 705 N.W.2d 59 (2005).
2. Procedure
This section makes proceedings to vacate or modify judgment at subsequent term applicable to Supreme and county courts. In re Estate of Jensen, 135 Neb. 602, 283 N.W. 196 (1939).
Law authorizing district court to vacate judgment cannot be invoked after judgment is pronounced regular by Supreme Court. Brandeen v. Beale, 117 Neb. 291, 220 N.W. 298 (1928).
Final order of county court in proceeding to set aside fraudulent judgment is reviewable by district court on appeal. Gainsforth v. Peterson, 114 Neb. 442, 207 N.W. 935 (1926).
Procedure to vacate judgment applies to county court in exercise of probate jurisdiction. Oakdale Heat & Light Co. v. Seymour, 78 Neb. 50, 114 N.W. 643 (1908).
3. Miscellaneous
Statutory provision is exclusive. State v. State Journal Co., 77 Neb. 771, 111 N.W. 118 (1907).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2101 - Action on bonds or insurance; by whom and how brought.

25-2101.
Action on bonds or insurance; by whom and how brought.
When an officer, executor, or administrator within this state, by misconduct or neglect of duty, forfeits his or her bond or commercial insurance policy or renders his or her sureties liable, any person injured thereby, or who is by law entitled to the benefit of the security, may bring an action thereon in his or her own name against the officer, executor, or administrator, and his or her sureties, to recover the amount to which he or she may be entitled by reason of the delinquency. The action may be instituted and proceeded in on a certified copy of the bond or commercial insurance policy, which copy shall be furnished by the person holding the original thereof.
Source
R.S.1867, Code § 643, p. 507;
R.S.1913, § 8216;
C.S.1922, § 9169;
C.S.1929, § 20-2101;
R.S.1943, § 25-2101;
Laws 2004, LB 884, § 13.
Annotations
Section refers to bond given under statutory authority only. Cushing v. Lickert, 79 Neb. 384, 112 N.W. 616 (1907).
Any person entitled to benefit of bond may sue thereon in his own name. Barker v. Wheeler, 71 Neb. 740, 99 N.W. 548 (1904).
That bond is joint instead of joint and several is no defense. Wilcox v. Perkins County, 70 Neb. 139, 97 N.W. 236 (1903).
County is not a necessary party. Stewart v. Carter, 4 Neb. 564 (1876).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2102 - Further action; authorized.

25-2102.
Further action; authorized.
A judgment in favor of a party for one delinquency does not preclude the same or another party from an action on the same security for another delinquency.
Source
R.S.1867, Code § 644, p. 507;
R.S.1913, § 8217;
C.S.1922, § 9170;
C.S.1929, § 20-2102;
R.S.1943, § 25-2102.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2123 - Effect of punishment upon criminal liability.

25-2123.
Effect of punishment upon criminal liability.
Persons punished for contempt under the preceding provisions shall nevertheless be liable to indictment, if such contempt shall amount to an indictable offense; but the court before which the conviction shall be had may, in determining the punishment, take into consideration the punishment before inflicted in mitigation of the sentence.
Source
R.S.1867, Code § 671, p. 513;
R.S.1913, § 8238;
C.S.1922, § 9191;
C.S.1929, § 20-2123;
R.S.1943, § 25-2123.
Annotations
The right of confrontation does not apply to criminal contempt proceedings and defendant's presence is not required if there have been suitable notice and adequate opportunity to appear and be heard. State v. Rhodes, 192 Neb. 557, 222 N.W.2d 837 (1974).
Action for criminal contempt for practicing law without license was not barred by lapse of time or by statute making it a misdemeanor, there being no statute limiting time for prosecution of such action and no prejudice shown to defendant by delay. State ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282 (1937).
Failure of information for contempt to use word "willful" is not fatal. Kammer v. State, 105 Neb. 224, 180 N.W. 39 (1920).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2125 - Ejectment; answer; contents.

25-2125.
Ejectment; answer; contents.
It shall be sufficient in such action if the answer denies generally the title alleged in the complaint, or that the defendant withholds possession, as the case may be; but if the defendant denies the title of the plaintiff, possession by the defendant shall be taken as admitted. If the defendant does not defend for the whole premises, the answer shall describe the particular part for which defense is made.
Source
R.S.1867, Code § 627, p. 505;
R.S.1913, § 8240;
C.S.1922, § 9193;
C.S.1929, § 20-2125;
R.S.1943, § 25-2125;
Laws 2002, LB 876, § 31.
Annotations
Defendant's general denials in an ejectment action are sufficient to raise the question of the defendant's equity in the property as a defense to the ejectment action. Miller v. Radtke, 230 Neb. 561, 432 N.W.2d 542 (1988).
Ejectment of a vendee may be granted as a remedy for violating the terms of a land contract only where the equities of the particular case justify such a disposition, where the property is of less value than the contract price, and where such a procedure would not offend against justice and equity. Miller v. Radtke, 230 Neb. 561, 432 N.W.2d 542 (1988).
In an ejectment action, where defendant presents an equitable defense, the case is tried, and reviewed, as an action in equity. Miller v. Radtke, 230 Neb. 561, 432 N.W.2d 542 (1988).
In enforcing a vendor's rights in a land contract, ejectment is a more severe disposition than is the remedy of strict foreclosure. Miller v. Radtke, 230 Neb. 561, 432 N.W.2d 542 (1988).
Under general denial, defendant may prove estoppel to defeat plaintiff's cause of action. Fitch v. Walsh, 94 Neb. 32, 142 N.W. 293 (1913).
Proof of adverse possession is admissible under general denial. Murray v. Romine, 60 Neb. 94, 82 N.W. 318 (1900).
Where answer denies title and right of possession, defendant may interpose defense of adverse possession. Fink v. Dawson, 52 Neb. 647, 72 N.W. 1037 (1897).
Defendant may interpose any number of defenses. Wanser v. Lucas, 44 Neb. 759, 62 N.W. 1108 (1895).
Defendant under general denial may prove any fact which will defeat plaintiff's cause of action. Staley v. Housel, 35 Neb. 160, 52 N.W. 888 (1892).
Statute of limitations is a defense. Gue v. Jones, 25 Neb. 634, 41 N.W. 555 (1889); Colvin v. Republican Valley Land Assn., 23 Neb. 75, 36 N.W. 361 (1888).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2126 - Ejectment; actions between tenants in common; complaint; allegations.

25-2126.
Ejectment; actions between tenants in common; complaint; allegations.
In an action by a tenant in common of real property against a cotenant the plaintiff must state, in addition to what is required in section 25-2124, that the defendant either denies the plaintiff's right, or did some act amounting to such denial.
Source
R.S.1867, Code § 628, p. 505;
R.S.1913, § 8241;
C.S.1922, § 9194;
C.S.1929, § 20-2126;
R.S.1943, § 25-2126.
Annotations
Lease by tenant in common of an entire estate is void as to interest of his cotenants. Jackson v. O'Rorke, 71 Neb. 418, 98 N.W. 1068 (1904).
Where tenant in common denies title of cotenants, and is in possession of and claiming property, such holding is adverse. Craven v. Craven, 68 Neb. 459, 94 N.W. 604 (1903).
Statute of limitations need not be pleaded. Oldig v. Fisk, 53 Neb. 156, 73 N.W. 661 (1897).
Tenant in common can recover only to extent of his title. Kirk v. Bowling, 20 Neb. 260, 29 N.W. 928 (1886).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2127 - Ejectment; plaintiff's right terminating while action pending; verdict; judgment.

25-2127.
Ejectment; plaintiff's right terminating while action pending; verdict; judgment.
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.
Source
R.S.1867, Code § 629, p. 505;
R.S.1913, § 8242;
C.S.1922, § 9195;
C.S.1929, § 20-2127;
R.S.1943, § 25-2127.
Annotations
Right to maintain ejectment of pendente lite purchaser was terminated upon confirmation of mortgage foreclosure sale, but recovery could be made of rents and profits. Orr v. Broad, 52 Neb. 490, 72 N.W. 850 (1897).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2128 - Ejectment; occupying claimants; rights.

25-2128.
Ejectment; occupying claimants; rights.
The parties in an action for the recovery of property may avail themselves, if entitled thereto, of the relief provided for in sections 76-301 to 76-311 for occupying claimants.
Source
R.S.1867, Code § 632, p. 506;
R.S.1913, § 8234;
C.S.1922, § 9196;
C.S.1929, § 20-2128;
R.S.1943, § 25-2128.
Annotations
To recover under occupying claimant's act, defendant must have made improvements or paid taxes while in good faith claiming title. Carter v. Brown, 35 Neb. 670, 53 N.W. 580 (1892).
Measure of recovery by occupying claimant is the amount the improvements add to value of property. Fletcher v. Brown, 35 Neb. 660, 53 N.W. 577 (1892).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2129 - Waste; negligence in preventing; liability.

25-2129.
Waste; negligence in preventing; liability.
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.
Source
R.S.1867, Code § 635, p. 506;
R.S.1913, § 8246;
C.S.1922, § 9199;
C.S.1929, § 20-2131;
R.S.1943, § 25-2129.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2130 - Trespass; liability; damages; when recoverable.

25-2130.
Trespass; liability; damages; when recoverable.
For willful 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 damages at the suit of any person entitled to protect or enjoy the property aforesaid.
Source
R.S.1867, Code § 636, p. 506;
R.S.1913, § 8247;
C.S.1922, § 9200;
C.S.1929, § 20-2132;
R.S.1943, § 25-2130;
Laws 2000, LB 626, § 20.
Annotations
To recover multiple damages one must distinctly claim them in his petition. George Rose Sodding & Grading Co., Inc. v. City of Omaha, 190 Neb. 12, 205 N.W.2d 655 (1973).
To constitute willful trespass, act must be done knowingly or intentionally. Hallowell v. Borchers, 150 Neb. 322, 34 N.W.2d 404 (1948).
Waste defined; equity will restrain. Hayman v. Rownd, 82 Neb. 598, 118 N.W. 328 (1908).
Injunction to restrain threatened trespass is allowable. Peterson v. Hopewell, 55 Neb. 670, 76 N.W. 451 (1898).
Entry of homesteader is sufficient to support action. Culbertson Irrigating & Water Power Co. v. Olander, 51 Neb. 539, 71 N.W. 298 (1897).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2131 - Trespass; taking timber for repair of public highways or bridges; liability.

25-2131.
Trespass; taking timber for repair of public highways or bridges; liability.
Nothing herein contained authorizes the recovery of more than the just value of the timber taken from uncultivated woodland for the repair of a public highway or bridge in its immediate neighborhood.
Source
R.S.1867, Code § 637, p. 506;
R.S.1913, § 8248;
C.S.1922, § 9201;
C.S.1929, § 20-2133;
R.S.1943, § 25-2131.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2132 - Waste or trespass; remainderman; reversioner; rights.

25-2132.
Waste or trespass; remainderman; reversioner; rights.
The owner of an estate in remainder or reversion, may maintain an action for trespass or waste for injuries done to the inheritance, notwithstanding any intervening estate for life or years.
Source
R.S.1867, Code § 638, p. 506;
R.S.1913, § 8249;
C.S.1922, § 9202;
C.S.1929, § 20-2134;
R.S.1943, § 25-2132.
Annotations
Lessee remaining in possession after death of life tenant becomes liable to the reversioner for reasonable value of the use and occupation of premises. Guthmann v. Vallery, 51 Neb. 824, 71 N.W. 734 (1897).
Conveyance of reversion carries rents. Eiseley v. Spooner, 23 Neb. 470, 36 N.W. 659 (1888).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2133 - Waste or trespass; heir; rights.

25-2133.
Waste or trespass; heir; rights.
An heir, whether a minor or of full age, may maintain an action for trespass or waste for injuries done in the time of his ancestors as well as in his own time, unless barred by the statute of limitations.
Source
R.S.1867, Code § 639, p. 506;
R.S.1913, § 8250;
C.S.1922, § 9203;
C.S.1929, § 20-2135;
R.S.1943, § 25-2133.
Annotations
Action to quiet title by administrator is not a bar to like action by heir. Eayrs v. Nason, 54 Neb. 143, 74 N.W. 408 (1898).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2134 - Waste or trespass; purchaser on execution; rights.

25-2134.
Waste or trespass; purchaser on execution; rights.
Where lands or tenements are sold by virtue of an execution, the purchaser at such sale may maintain his action against any person for trespass or waste occurring or existing after his purchase.
Source
R.S.1867, Code § 640, p. 506;
R.S.1913, § 8251;
C.S.1922, § 9204;
C.S.1929, § 20-2136;
R.S.1943, § 25-2134.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2135 - Waste or trespass; occupant; right to use lands or timber for repairs.

25-2135.
Waste or trespass; occupant; right to use lands or timber for repairs.
Section 25-2134 is not intended to prevent the person who occupies the lands in the meantime from using them in the ordinary course of husbandry, or from using timber for the purpose of making suitable repairs thereon.
Source
R.S.1867, Code § 641, p. 507;
R.S.1913, § 8252;
C.S.1922, § 9205;
C.S.1929, § 20-2137;
R.S.1943, § 25-2135.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2136 - Waste; occupant; right to use timber for repairs; limit.

25-2136.
Waste; occupant; right to use timber for repairs; limit.
If for the purpose stated in section 25-2135 the occupant employs timber vastly superior to that required for the occasion, he will be deemed to have committed waste, and will be liable accordingly.
Source
R.S.1867, Code § 642, p. 507;
R.S.1913, § 8253;
C.S.1922, § 9206;
C.S.1929, § 20-2138;
R.S.1943, § 25-2136.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2137 - Complaint for foreclosure or satisfaction; where filed.

25-2137.
Complaint for foreclosure or satisfaction; where filed.
All complaints for the foreclosure or satisfaction of mortgages shall be filed in the district court where the mortgaged premises are situated.
Source
R.S.1867, Code § 845, p. 542;
R.S.1913, § 8254;
C.S.1922, § 9207;
C.S.1929, § 20-2139;
R.S.1943, § 25-2137;
Laws 2002, LB 876, § 32.
Cross References
For appointment of receiver, see sections 25-1081 to 25-1092.
Annotations
Action to foreclose real estate mortgage must be brought in county where real estate is situated. Boehmer v. Heinen, 138 Neb. 376, 293 N.W. 237 (1940).
Right to bring action at law on promissory note, secured by real estate mortgage, has not been abolished. Federal Farm Mtg. Corp. v. Thiele, 137 Neb. 626, 290 N.W. 471 (1940).
It is presumed that the law of Colorado regarding place of filing mortgage foreclosure actions is same as that of Nebraska in absence of proof to contrary. National Fidelity Life Ins. Co. v. Gordon, 130 Neb. 130, 264 N.W. 155 (1936).
Foreclosure was properly brought in county where land was located. Prudential Ins. Co. v. Bliss, 122 Neb. 561, 240 N.W. 766 (1932).
One holding interest in proceeds of sale because of rights possessed in the mortgage is necessary party in foreclosure suit. Webb v. Patterson, 114 Neb. 346, 207 N.W. 522 (1926).
A judicial foreclosure is not designed to remove the original mortgage lien and create a new and independent one; purpose of foreclosure decree was not to destroy lien of mortgages but to judicially recognize them. In re Black Ranches, Inc., 362 F.2d 8 (8th Cir. 1966).
Confirmation of sale under mortgage foreclosure after death of mortgagor is voidable but not void, and is not open to collateral attack. O'Connor v. Townsend, 87 F.2d 882 (8th Cir. 1937).
Mortgagor retains legal title and substantial interest in mortgaged real estate until confirmation of sale and execution of deed, and may redeem at any time before order of confirmation becomes final. United States Nat. Bank of Omaha v. Pamp, 83 F.2d 493 (8th Cir. 1936).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2138 - Sale of premises; decree; power of court.

25-2138.
Sale of premises; decree; power of court.
Whenever a complaint is filed for the foreclosure or satisfaction of a mortgage, the court has the power to decree a sale of the mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage, and the cost of suit.
Source
R.S.1867, Code § 846, p. 542;
R.S.1913, § 8255;
C.S.1922, § 9208;
C.S.1929, § 20-2140;
R.S.1943, § 25-2138;
Laws 2002, LB 876, § 33.
Cross References
For stay of order of sale, see section 25-1506.
Annotations
1. Decree
2. Sale
3. Miscellaneous
1. Decree
Decree is final judgment; is reviewable before sale and confirmation. Schuyler Building & Loan Assn. v. Fulmer, 61 Neb. 68, 84 N.W. 609 (1900).
Decree in foreclosure is not personal judgment. Alling v. Nelson, 55 Neb. 161, 75 N.W. 581 (1898).
2. Sale
Court may in the decree provide for the sale of the premises in parcels or en masse as the best interests of the parties may require. Michigan Mutual Life Ins. Co. v. Richter, 58 Neb. 463, 78 N.W. 932 (1899); Kane v. Jonasen, 55 Neb. 757, 76 N.W. 441 (1898).
Order of sale, aside from decree, is unnecessary. Clark & Leonard Investment Co. v. Hamilton, 54 Neb. 95, 74 N.W. 430 (1898); Johnson v. Colby, 52 Neb. 327, 72 N.W. 313 (1897).
Personal notice of sale and confirmation is unnecessary. Link v. Connell, 48 Neb. 574, 67 N.W. 475 (1896).
A special execution may issue for sale of mortgaged premises on decree of foreclosure. Renard v. Brown, 7 Neb. 449 (1878).
3. Miscellaneous
Sale of real estate on mortgage foreclosure is not a bar to withdrawal of note after foreclosure is completed and the mortgagee may bring suit thereon to collect deficiency. Federal Farm Mtg. Corp. v. Thiele, 137 Neb. 626, 290 N.W. 471 (1940).
Defense of usury is not available to purchaser of equity of redemption. Building & Loan Assn. of Dakota v. Bilan, 59 Neb. 458, 81 N.W. 308 (1899).
Doctrine of subrogation discussed and applied. Aultman, Miller & Co. v. Bishop, 53 Neb. 545, 74 N.W. 55 (1898); Ocobock v. Baker, 52 Neb. 447, 72 N.W. 582 (1897).
Mortgagor retains legal title and substantial interest in mortgaged real estate until confirmation of sale and execution of deed, and may redeem at any time before order of confirmation becomes final. United States Nat. Bank of Omaha v. Pamp, 83 F.2d 493 (8th Cir. 1936).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2141 - Parties defendant; joinder.

25-2141.
Parties defendant; joinder.
If the mortgage debt is secured by the obligation or other evidence of debt of any other person besides the mortgagor, the complainant may make such person a party to the action.
Source
R.S.1867, Code § 849, p. 543;
R.S.1913, § 8258;
C.S.1922, § 9211;
C.S.1929, § 20-2143;
Laws 1933, c. 41, § 2, p. 248;
C.S.Supp.,1941, § 20-2143;
R.S.1943, § 25-2141.
Annotations
After mortgage foreclosure is completed, mortgagee may sue at law for deficiency without authorization of equity court wherein foreclosure was had. Federal Farm Mtg. Corp. v. Claussen, 138 Neb. 518, 293 N.W. 424 (1940).
Amendment of 1933 did not affect right of creditor to bring suit at law on note for deficiency remaining after foreclosure of mortgage has been completed. Federal Farm Mtg. Corp. v. Thiele, 137 Neb. 626, 290 N.W. 471 (1940); Federal Farm Mtg. Corp. v. Cramb, 137 Neb. 553, 290 N.W. 440 (1940).
Parties to indemnity agreement against loss on real estate mortgage are proper, though not necessary, parties to original foreclosure proceeding. First Trust Co. of Lincoln v. Airedale Ranch & Cattle Co., 136 Neb. 521, 286 N.W. 766 (1939).
Holder of secured note transferring it without disclosing that he was agent is liable for deficiency. Thornton v. Farmers & Merchants Nat. Bank of Fairbury, 117 Neb. 355, 220 N.W. 598 (1928).
Joining sureties on note secured by mortgage as defendants in foreclosure suit was proper. United States Trust Co. v. Miller, 116 Neb. 25, 215 N.W. 462 (1927).
Vendor becomes in effect surety if mortgagee elects to hold purchaser. Merriam v. Miles, 54 Neb. 566, 74 N.W. 861 (1898).
If conveyed subject to mortgage, purchaser is not liable for deficiency. Green v. Hall, 45 Neb. 89, 63 N.W. 119 (1895).
Purchaser agreeing to pay mortgage as part consideration may be sued at law or held liable on foreclosure. Reynolds v. Dietz, 39 Neb. 180, 58 N.W. 89 (1894).
Where purchaser assumes and agrees to pay mortgage, it is immaterial in foreclosure action whether vendor had mortgageable interest in premises. Bond v. Dolby, 17 Neb. 491, 23 N.W. 351 (1885).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-2143 - Prior judgment at law; effect.

25-2143.
Prior judgment at law; effect.
If it appears that any judgment has been obtained in a suit at law for the money demanded by such complaint, or any part thereof, no proceedings shall be had in such case, unless to an execution against the property of the defendant in such judgment the sheriff or other proper officer has returned that the execution is unsatisfied in whole or in part and that the defendant has no property whereof to satisfy such execution except the mortgaged premises.
Source
R.S.1867, Code § 851, p. 543;
R.S.1913, § 8260;
C.S.1922, § 9213;
C.S.1929, § 20-2145;
R.S.1943, § 25-2143;
Laws 2002, LB 876, § 37.
Annotations
Whether creditor mortgagee will be required to first exhaust mortgaged property before subjecting fraudulently transferred property to satisfaction of its judgment is within discretion of court. First Nat. Bank of Omaha v. First Cadco Corp., 189 Neb. 553, 203 N.W.2d 770 (1973).
Institution of suit at law upon note and obtaining judgment thereon is not a release of the mortgage security, and does not bar foreclosure after execution on judgment has been returned unsatisfied. Federal Farm Mtg. Corp. v. Adams, 142 Neb. 202, 5 N.W.2d 384 (1942).
Failure to amend this section disclosed legislative intent to permit suit at law for deficiency after mortgage foreclosure proceeding is completed. Federal Farm Mtg. Corp. v. Thiele, 137 Neb. 626, 290 N.W. 471 (1940).
Conditional allowance of mortgagee's claim against mortgagor's estate did not preclude foreclosure. Quesner v. Novotny, 116 Neb. 84, 215 N.W. 796 (1927).
Return of execution unsatisfied did not relieve plaintiff from alleging no action at law where there are guarantors of note. Michigan Trust Co. v. City of Red Cloud, 69 Neb. 585, 96 N.W. 140 (1903), rehearing denied 69 Neb. 592, 98 N.W. 413 (1904).
Return nulla bona, when judgment transcripted to another county is sufficient. Allegations required by preceding section are unnecessary. Montpelier Sav. Bank & Trust Co. v. Follett, 68 Neb. 416, 94 N.W. 635 (1903).
Proceedings against garnishees upon judgment for debt stays foreclosure. Hargreaves v. Menken, 45 Neb. 668, 63 N.W. 951 (1895).
Requirement is for benefit of mortgagor and between lienors is immaterial. Simmons Hardware Co. v. Brokaw, 7 Neb. 405 (1878); Chaffee v. Schestedt, 4 Neb. Unof. 740, 96 N.W. 161 (1903).
Return of sheriff nulla bona to execution in law action is sufficient to authorize court to proceed in equity. Zug v. Forgan, 3 Neb. Unof. 149, 90 N.W. 1129 (1902).