reglab/statecodes huggingface dataset:
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-10,102 - Judgment against plaintiff upon dismissal; failure of plaintiff to prosecute; procedure.

25-10,102.
Judgment against plaintiff upon dismissal; failure of plaintiff to prosecute; procedure.
If the property has been delivered to the plaintiff, and he suffers a voluntary or involuntary dismissal, or if he otherwise fails to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then, and in either case, they shall assess such damages for the defendant as are right and proper; for which, with costs of suit, the court shall render judgment for the defendant.
Source
R.S.1867, Code § 190, p. 423;
R.S.1913, § 7831;
C.S.1922, § 8775;
C.S.1929, § 20-10,102;
R.S.1943, § 25-10,102;
Laws 1959, c. 103, § 1, p. 427.
Annotations
1. Failure to prosecute
2. Burden of proof
3. Miscellaneous
1. Failure to prosecute
Upon failure of plaintiff to prosecute appeal, defendant has right to have title to and right of possession of property adjudicated. Rice v. McGrath, 162 Neb. 511, 76 N.W.2d 428 (1956).
Failing to prosecute by refusing to amend, defendant is entitled to judgment and trial to assess damages. Pennington County Bank v. Bauman, 87 Neb. 25, 126 N.W. 654 (1910).
2. Burden of proof
Burden rests on plaintiff in replevin to establish facts necessary to recover. Alliance Loan & Inv. Co. v. Morgan, 154 Neb. 745, 49 N.W.2d 593 (1951).
Party cannot be substituted for plaintiff. Meyer v. Omaha Furniture & Carpet Co., 76 Neb. 405, 107 N.W. 767 (1906).
3. Miscellaneous
An action in replevin is properly triable to a jury. First State Bank of Scottsbluff v. Bear, 172 Neb. 504, 110 N.W.2d 83 (1961).
Where action is dismissed for want of jurisdiction, judgment for return of property or value cannot be given. Reid, Murdoch & Co. v. Panska, 56 Neb. 195, 78 N.W. 534 (1898).
Plaintiff cannot dismiss and defeat defendant's right to possession, without trial. Vose v. Muller, 48 Neb. 602, 67 N.W. 598 (1896).
Defendant is entitled to judgment, unless plaintiff proves title. Garber v. Palmer, Blanchard & Co., 47 Neb. 699, 66 N.W. 656 (1896).
Requirement that judgment be in the alternative is mandatory. Singer Mfg. Co. v. Dunham, 33 Neb. 686, 50 N.W. 1122 (1892).
Plaintiff may not dismiss without prejudice. Aultman & Co. v. Reams, 9 Neb. 487, 4 N.W. 81 (1880).
Plaintiff cannot dismiss to escape liability to defendant. Cook v. Vaughn, 1 Neb. Unof. 244, 95 N.W. 333 (1901).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-10,106 - Property not taken or returned to defendant; judgment for plaintiff; nature and amount.

25-10,106.
Property not taken or returned to defendant; judgment for plaintiff; nature and amount.
When the property claimed has not been taken, or has been returned to the defendant by the sheriff for want of the undertaking required by section 25-1098, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper; but if the property be returned for want of the undertaking required by such section, the plaintiff shall pay all costs made by taking the same.
Source
R.S.1867, Code § 193, p. 423;
R.S.1913, § 7835;
C.S.1922, § 8779;
C.S.1929, § 20-10,106;
R.S.1943, § 25-10,106.
Annotations
1. Possession
2. Damages
3. Miscellaneous
1. Possession
While there can be no recovery of damages for property of which defendant had no possession or control when action was instituted, evidence of possession prior to commencement may be presumed to continue and form basis for judgment. Tesar v. Bartels, 149 Neb. 889, 32 N.W.2d 911 (1948).
Damages cannot be awarded where property has passed into the lawful possession of a trustee in bankruptcy, unless actual possession of the property remained in the defendant or had been returned to him at time replevin action was brought. Omaha U. S. Employees' Federal Credit Union v. Brunson, 147 Neb. 439, 23 N.W.2d 717 (1946).
Action is not changed to trover; recovery depends on rights at commencement of action. Wilkins v. Redding, 70 Neb. 182, 97 N.W. 238 (1903).
In replevin the plaintiff cannot recover damages for property which was not in defendant's possession, or under his control, at the beginning of the suit. Heidiman-Benoist Saddlery Co. v. Schott, 59 Neb. 20, 80 N.W. 47 (1899).
2. Damages
If property is not returned, the measure of damages is the value of the property together with interest from the date of the unlawful taking. Hickman-Williams Agency v. Haney, 152 Neb. 219, 40 N.W.2d 813 (1950).
In an action properly commenced this section provides a remedy where the property has not been taken under the writ. Singer Sewing Machine Co. v. Robertson, 87 Neb. 542, 127 N.W. 866 (1910).
Where property cannot be found, taken, and delivered to plaintiff, or where bond is not given, action may proceed for damages. Hopkins v. State ex rel. Omaha Cooperage Co., 64 Neb. 10, 89 N.W. 401 (1902).
Measure of damages is market value and interest from time taken. Honaker v. Vesey, 57 Neb. 413, 77 N.W. 1100 (1899).
Where defendant parts with possession of property before suit is brought, action can proceed for damages. Lininger & Metcalf Co. v. Mills, 29 Neb. 297, 45 N.W. 463 (1890).
Where plaintiff fails to give bond, measure of damages is value of property at time taken with seven percent interest; judgment for return of property is error without prejudice. Sloan v. Fist, 2 Neb. Unof. 664, 89 N.W. 760 (1902).
3. Miscellaneous
Plaintiff may dismiss action without prejudice. Saussay v. Lemp Brewing Co., 52 Neb. 627, 72 N.W. 1026 (1897).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-10,107 - Order for delivery of property; directed to other counties; successive orders; taxation of costs.

25-10,107.
Order for delivery of property; directed to other counties; successive orders; taxation of costs.
An order may be directed to any other county than the one in which the action is brought, for the delivery of the property claimed. Several orders may issue at the same time, or successively, at the option of the plaintiff; but only one of them shall be taxed in the costs, unless otherwise ordered by the court.
Source
R.S.1867, Code § 194, p. 424;
R.S.1913, § 7836;
C.S.1922, § 8780;
C.S.1929, § 20-10,107;
R.S.1943, § 25-10,107.
Annotations
Order may be enforced by mandamus against warden of penitentiary. Hopkins v. State ex rel. Omaha Cooperage Co., 64 Neb. 10, 89 N.W. 401 (1902).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-10,108 - Order of delivery; execution; powers of officer.

25-10,108.
Order of delivery; execution; powers of officer.
The sheriff or other officer, in the execution of the order of delivery, may break open any building or enclosure in which the property claimed, or any part thereof, is concealed; but not until he has been refused an entrance into said building or enclosure and the delivery of the property, after having demanded the same.
Source
R.S.1867, Code § 195, p. 424;
R.S.1913, § 7837;
C.S.1922, § 8781;
C.S.1929, § 20-10,108;
R.S.1943, § 25-10,108.
Annotations
There is no place, office or institution where officers of law cannot go to make service of order. Hopkins v. State ex rel. Omaha Cooperage Co., 64 Neb. 10, 89 N.W. 401 (1902).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-10,109 - Suits on undertakings; when brought.

25-10,109.
Suits on undertakings; when brought.
No suit shall be instituted on the undertaking given under section 25-1098 before an execution issued on a judgment in favor of the plaintiff or defendant in the action shall have been returned, that sufficient property whereon to levy and make the amount of such judgment cannot be found in the county.
Source
R.S.1867, Code § 196, p. 424;
R.S.1913, § 7836;
C.S.1922, § 8782;
C.S.1929, § 20-10,109;
R.S.1943, § 25-10,109;
Laws 1972, LB 1049, § 4.
Annotations
It is sufficient that plaintiff fails to return property and execution on money judgment is returned unsatisfied. Eickhoff v. Eikenbary, 52 Neb. 332, 72 N.W. 308 (1897).
Return of execution unsatisfied is prerequisite to action and petition must so allege. Hershiser v. Jordan, 25 Neb. 275, 41 N.W. 147 (1888).
Judgment against sureties on bond cannot be rendered in replevin action. Lininger v. Raymond, 9 Neb. 40, 2 N.W. 359 (1879).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-10,110 - Order for delivery of property; issuance without court order; effect; taxation of costs.

25-10,110.
Order for delivery of property; issuance without court order; effect; taxation of costs.
Any order for the delivery of property issued under section 25-1094 without the order of the court required thereby shall be set aside at the cost of the clerk issuing the same, and such clerk, as well as the plaintiff, shall also be liable in damages to the party injured.
Source
R.S.1867, Code § 197, p. 424;
R.S.1913, § 7839;
C.S.1922, § 8783;
C.S.1929, § 20-10,110;
R.S.1943, § 25-10,110;
Laws 1973, LB 474, § 9.
Annotations
If order of delivery is issued without affidavit, the order may be set aside. Racine-Sattley Co. v. Meinen, 79 Neb. 33, 114 N.W. 602 (1908).
Affidavit is prerequisite; without it, order is nullity and may be set aside on proper application. Case Threshing Machine Co. v. Rosso, 78 Neb. 184, 110 N.W. 686 (1907).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1101 - Issues; kinds.

25-1101.
Issues; kinds.
Issues arise on the pleadings where a fact or conclusion of law is maintained by one party and controverted by the other. They are of two kinds: (1) Of law; (2) of fact.
Source
R.S.1867, Code § 277, p. 440;
R.S.1913, § 7840;
C.S.1922, § 8784;
C.S.1929, § 20-1101;
R.S.1943, § 25-1101.
Annotations
The pleadings before the trial court at the time of decision form the issues of the case. State ex rel. Douglas v. Schroeder, 212 Neb. 562, 324 N.W.2d 391 (1982).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1102 - Issue of fact; how formed.

25-1102.
Issue of fact; how formed.
An issue of fact arises upon a material allegation in a pleading that is denied by a responsive pleading or that is considered as denied or avoided because no responsive pleading is required or permitted.
Source
R.S.1867, Code § 278, p. 440;
R.S.1913, § 7841;
C.S.1922, § 8785;
C.S.1929, § 20-1102;
R.S.1943, § 25-1102;
Laws 2002, LB 876, § 24.
Annotations
A general denial in answer puts in issue only such pleaded facts as are necessary to enable plaintiff to recover. Luikart v. Bank of Benkelman, 132 Neb. 501, 272 N.W. 324 (1937).
Party is as much entitled to be heard in trial court upon questions of law as upon issues of fact. Wagener v. Whitmore, 79 Neb. 558, 113 N.W. 238 (1907).
Where facts, though not conflicting, would cause impartial minds to draw different conclusions, question to be determined is not one of law for court, but one of fact. Southern Pine Lumber Co. v. Fries, 1 Neb. Unof. 691, 96 N.W. 71 (1901).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1103 - Trial, defined.

25-1103.
Trial, defined.
A trial is a judicial examination of the issues, whether of law or of fact in an action.
Source
R.S.1867, Code § 279, p. 440;
R.S.1913, § 7842;
C.S.1922, § 8786;
C.S.1929, § 20-1103;
R.S.1943, § 25-1103.
Annotations
Hearing on a motion to dissolve an attachment is a trial. J. R. Watkins Co. v. Sorenson, 166 Neb. 364, 88 N.W.2d 902 (1958).
A trial is a judicial examination of the issues, whether of law or fact. Krepcik v. Interstate Transit Lines, 151 Neb. 663, 38 N.W.2d 533 (1949).
Where court decides case upon merits, after introduction of evidence, it is a trial. Shipley v. McNeel, 149 Neb. 790, 32 N.W.2d 639 (1948).
Hearing of motion to dissolve an attachment is a trial. Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314 (1896).
Trial of an impeachment does not include preferring of charges. State v. Hill, 37 Neb. 80, 55 N.W. 794 (1893).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1105 - Issues of fact triable to court.

25-1105.
Issues of fact triable to court.
All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury, or referred as provided in this code.
Source
R.S.1867, Code § 281, p. 441;
R.S.1913, § 7844;
C.S.1922, § 8788;
C.S.1929, § 20-1105;
R.S.1943, § 25-1105.
Annotations
Claims brought under this section may be equitable in nature, and in such case the court may submit questions of fact to the jury, but the jury's determination is only an advisory one. In re Estate of Layton, 212 Neb. 518, 323 N.W.2d 817 (1982).
Appeals in guardianship matters are heard de novo in Supreme Court. Cass v. Pense, 155 Neb. 792, 54 N.W.2d 68 (1952).
Contest over sufficiency of election by widow to take under statute was triable de novo in Supreme Court. In re Estate of Bergren, 154 Neb. 289, 47 N.W.2d 582 (1951).
In suits not triable by jury as of right, a verdict of a jury is advisory only. In re Guardianship of Warner, 137 Neb. 25, 288 N.W. 39 (1939).
Jury cannot be demanded on adverse possession issue in suit to quiet title. Krumm v. Pillard, 104 Neb. 335, 177 N.W. 171 (1920).
Verdict in equity case on issue of fact is advisory only. Bank of Stockham v. Alter, 61 Neb. 359, 85 N.W. 300 (1901).
Issues in equity causes are triable to the court without a jury. Smith v. Perry, 52 Neb. 738, 73 N.W. 282 (1897).
Power of court of equity to obtain verdict of jury on issues of fact is preserved by the code. Omaha Fire Ins. Co. v. Thompson, 50 Neb. 580, 70 N.W. 30 (1897).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1106 - Formation of jury; applicability of law.

25-1106.
Formation of jury; applicability of law.
The general mode of summoning, impaneling, challenging and swearing the jury is not changed by this code.
Source
R.S.1867, Code § 282, p. 441;
R.S.1913, § 7845;
C.S.1922, § 8789;
C.S.1929, § 20-1106;
R.S.1943, § 25-1106.
Annotations
Peremptory challenges and challenges for cause are provided to safeguard constitutional right of trial by jury in criminal case. Oden v. State, 166 Neb. 729, 90 N.W.2d 356 (1958).
In examination of venireman upon voir dire, he will not be deemed to have deceived counsel as to relations with opposing counsel, when he admits relations and answers questions truthfully. Blakely v. Omaha & C. B. St. Ry. Co., 94 Neb. 119, 142 N.W. 525 (1913).
Error cannot be predicated upon overruling of challenge to juror for cause when record does not show that complaining party has exhausted all his peremptory challenges. Olmstead v. Noll, 82 Neb. 147, 117 N.W. 102 (1908).
That juror has served on another case growing out of same state of facts does not necessarily disqualify him. Granite State Fire Ins. Co. v. Buckstaff Bros. Mfg. Co., 53 Neb. 123, 73 N.W. 544 (1897).
The improper excusing of a juror will not work a reversal unless all peremptory challenges are used. Smith v. Meyers, 52 Neb. 70, 71 N.W. 1006 (1897).
Selection of talesmen is entrusted to the discretion of the sheriff. Pflueger v. State, 46 Neb. 493, 64 N.W. 1094 (1895).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1107.01 - Jurors; permitted to take notes; use; destruction.

25-1107.01.
Jurors; permitted to take notes; use; destruction.
Jurors shall be permitted, but not required, to take notes. The notes may be used during the jury's deliberations and shall be treated as confidential between the juror making them and the other jurors. The notes shall not be preserved in any form. The trial judge shall ensure the confidentiality of the notes during the course of the trial and the jury's deliberations and shall instruct the bailiff to immediately mutilate and destroy such notes upon return of the verdict.
Source
Laws 2008, LB1014, § 71;
Laws 2020, LB387, § 37.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1109 - Cause submitted; action and conduct of jury.

25-1109.
Cause submitted; action and conduct of jury.
When the case is finally submitted to the jury, they may decide in court or retire for deliberation. If they retire, they must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict, or are discharged by the court, subject to the discretion of the court to permit them to separate temporarily at night and at their meals. The officer having them under his charge shall not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court, and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.
Source
R.S.1867, Code § 285, p. 442;
R.S.1913, § 7848;
C.S.1922, § 8792;
C.S.1929, § 20-1109;
R.S.1943, § 25-1109.
Annotations
Where bailiff in charge of jury learned that certain juror was voting for acquittal and thereupon went into jury room and by his attitude and statements influenced juror, a new trial was required. Bramlett v. State, 129 Neb. 180, 261 N.W. 166 (1935).
Allowing jury to separate temporarily during the night is a salutary provision for comfort of jury and permissible at discretion of trial judge. Wiegand v. Lincoln Traction Co., 123 Neb. 766, 244 N.W. 298 (1932).
Fact that there were law reports, with markers therein at cases similar to the case in trial, in jury room, was not error in absence of showing that some juror read them. In re Estate of Wilson, 114 Neb. 593, 208 N.W. 961 (1926).
It is duty of jury to follow instructions given by court. Union State Bank v. Hutton, 62 Neb. 664, 87 N.W. 533 (1901); Barton v. Shull, 62 Neb. 570, 87 N.W. 322 (1901).
It was error for juror to state to fellow jurors facts within his own knowledge. Ewing v. Hoffine, 55 Neb. 131, 75 N.W. 537 (1898).
It is not reversible error to leave jury in charge of deputy sheriff not specially sworn for that purpose. Deranlieu v. Jandt, 37 Neb. 532, 56 N.W. 299 (1893).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1110 - Jury; separation; admonition of court.

25-1110.
Jury; separation; admonition of court.
If the jury are permitted to separate either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with or suffer themselves to be addressed by any other person on the subject of the trial, and that it is their duty not to form or express any opinion thereon until the cause is finally submitted to them.
Source
R.S.1867, Code § 286, p. 442;
R.S.1913, § 7849;
C.S.1922, § 8793;
C.S.1929, § 20-1110;
R.S.1943, § 25-1110.
Annotations
This section does not apply to criminal prosecutions. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1112 - Requested instruction; how modified.

25-1112.
Requested instruction; how modified.
If the court refuses a written instruction, as demanded, but gives the same with a modification, which the court may do, such modification shall not be by interlineation or erasure, but shall be well defined and shall follow some such characterizing words as "changed thus," which words shall themselves indicate that the same was refused as demanded.
Source
Laws 1875, § 2, p. 77;
R.S.1913, § 7851;
C.S.1922, § 8795;
C.S.1929, § 20-1112;
R.S.1943, § 25-1112.
Annotations
Where trial court refuses to give a proffered instruction, and so indicates on the margin thereof, it is not interlineation or erasure to embody statements therefrom in one of the court's instructions. Merritt v. Ash Grove Lime & Portland Cement Co., 136 Neb. 52, 285 N.W. 97 (1939).
Modification of requested instruction; exception must be noted, not to modification merely, but to manner of making same. Hunt v. Chicago, B. & Q. R. R. Co., 95 Neb. 746, 146 N.W. 986 (1914).
Action of trial court in modifying instruction may not be reviewed in absence of exception. Denise v. Omaha, 49 Neb. 750, 69 N.W. 119 (1896).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1113 - Given or refused instructions; how indicated; requirements.

25-1113.
Given or refused instructions; how indicated; requirements.
The court must read over all the instructions which it intends to give, and none others, to the jury, and must announce them as given, and shall announce as refused, without reading to the jury, all those which are refused, and must write the words given, or refused, as the case may be, on the margin of each instruction.
Source
Laws 1875, § 3, p. 77;
R.S.1913, § 7852;
C.S.1922, § 8796;
C.S.1929, § 20-1113;
R.S.1943, § 25-1113.
Annotations
Endorsement on instruction "given as modified" was not in accord with statute, but was not prejudicial. Asher v. Coca Cola Bottling Co., 172 Neb. 855, 112 N.W.2d 252 (1961).
Instructions given should be so endorsed by trial judge. Segebart v. Gregory, 160 Neb. 64, 69 N.W.2d 315 (1955).
Giving of oral instruction was reversible error. Dow v. Legg, 120 Neb. 271, 231 N.W. 747 (1930), 74 A.L.R. 5 (1930).
Instructions must be read to jury in open court. Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528 (1930), 67 A.L.R. 642 (1930).
Failure to write word "given" on instruction read to jury is not ground for reversal when not prejudicial. Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903); McClellan v. Hein, 56 Neb. 600, 77 N.W. 120 (1898); Home Fire Ins. Co. v. Decker, 55 Neb. 346, 75 N.W. 841 (1898).
Instructions must be considered together. To review alleged errors in refusing instructions they must be called to attention of trial court by motion for new trial. Schmitt & Bros. Co. v. Mahoney, 60 Neb. 20, 82 N.W. 99 (1900).
Disregard of provisions is ground of reversal if excepted to. Tracey v. State, 46 Neb. 361, 64 N.W. 1069 (1895); Omaha & Florence L. & T. Co. v. Hansen, 32 Neb. 449, 49 N.W. 456 (1891); Gillen v. Riley, 27 Neb. 158, 42 N.W. 1054 (1889).
Record must show ruling on instruction, or action of court will not be reviewed. It is not error to fail to mark "given" or "refused." Jolly v. State, 43 Neb. 857, 62 N.W. 300 (1895); City of Chadron v. Glover, 43 Neb. 732, 62 N.W. 62 (1895).
Failure to read instructions to jury is reversible error. McDuffie v. Bentley, 27 Neb. 380, 43 N.W. 123 (1889).
A trial court's failure to mark a jury instruction as "given" or "refused" pursuant to this section is not available as error on appeal in the absence of an objection made on these statutory grounds at trial. Schuemann v. Menard, Inc., 27 Neb. App. 977, 938 N.W.2d 378 (2020).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1117 - Jury; when discharged.

25-1117.
Jury; when discharged.
The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.
Source
R.S.1867, Code § 288, p. 442;
R.S.1913, § 7856;
C.S.1922, § 8800;
C.S.1929, § 20-1117;
R.S.1943, § 25-1117.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1118 - Jury; retrial on discharge.

25-1118.
Jury; retrial on discharge.
In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again immediately or at a future time as the court may direct.
Source
R.S.1867, Code § 289, p. 442;
R.S.1913, § 7857;
C.S.1922, § 8801;
C.S.1929, § 20-1118;
R.S.1943, § 25-1118.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1119 - Assessment of amount of recovery.

25-1119.
Assessment of amount of recovery.
When, by the verdict, either party is entitled to recover money of the adverse party, the jury in their verdict must assess the amount of recovery.
Source
R.S.1867, Code § 295, p. 443;
R.S.1913, § 7858;
C.S.1922, § 8802;
C.S.1929, § 20-1119;
R.S.1943, § 25-1119.
Annotations
Verdict for the plaintiff in amount of "no money" is in effect no verdict at all. Bushey v. French, 171 Neb. 809, 108 N.W.2d 237 (1961).
Where jury finds for plaintiff on its cause of action, and also for defendant on its counterclaim or setoff, verdict must show amount of each finding. Horse Shoe Lake Drainage Dist. v. Crane Co., 112 Neb. 323, 199 N.W. 526 (1924).
Court cannot disregard verdict and enter such judgment as evidence warrants; if verdict is not sustained by evidence, remedy is by motion for new trial. Kenesaw Mill & E. Co. v. Aufdenkamp, 106 Neb. 246, 183 N.W. 294 (1921).
Court may in action of debt add interest when such appears from verdict to be so intended by jury. Wiruth v. Lashmett, 85 Neb. 286, 123 N.W. 427 (1909).
Verdict may assess different amounts against different defendants. Lininger & Metcalf Co. v. Webb, 51 Neb. 10, 70 N.W. 519 (1897).
Failure to include in judgment interest allowed by jury on verdict was not prejudicial to defendant. Wiseman v. Ziegler, 41 Neb. 886, 60 N.W. 320 (1894).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1121 - Special verdicts; when allowed; procedure; filing; record.

25-1121.
Special verdicts; when allowed; procedure; filing; record.
In every action for the recovery of money only or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict, in writing, upon all or any of the issues and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact to be stated in writing, and may direct a written finding thereon. The special verdict or finding must be filed with the clerk and entered upon the record.
Source
R.S.1867, Code § 293, p. 443;
R.S.1913, § 7860;
C.S.1922, § 8804;
C.S.1929, § 20-1121;
R.S.1943, § 25-1121;
Laws 2018, LB193, § 13.
Annotations
1. Special verdict
2. Trial court discretion
3. Miscellaneous
1. Special verdict
Under circumstances of case, rendition of special verdict was proper. Baum v. County of Scotts Bluff, 172 Neb. 225, 109 N.W.2d 295 (1961).
Special findings, based upon conflicting evidence, will not be disturbed. Norfolk Beet-Sugar Co. v. Hight, 59 Neb. 100, 80 N.W. 276 (1899).
2. Trial court discretion
Trial court may submit special verdict in negligence action. Carlson v. Hanson, 166 Neb. 96, 88 N.W.2d 140 (1958).
Court may direct submission of special issues to jury, or jury may render special verdict without direction from the court. McGrew Machine Co. v. One Spring Alarm Clock Co., 124 Neb. 93, 245 N.W. 263 (1932).
Submission of special findings is within the discretion of trial court. Buel v. Chicago, R. I. & P. Ry. Co., 81 Neb. 430, 116 N.W. 299 (1908); American Fire Ins. Co. v. Landfare, 56 Neb. 482, 76 N.W. 1068 (1898); Phoenix Ins. Co. v. King, 52 Neb. 562, 72 N.W. 855 (1897); Hedrick v. Strauss, Uhlman & Guthman, 42 Neb. 485, 60 N.W. 928 (1894); Reed v. McRill, 41 Neb. 206, 59 N.W. 775 (1894).
3. Miscellaneous
This section has no application to criminal trials. State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982).
Quotient verdict is not void in absence of previous agreement that it should be controlling. Herbert v. Katzberg, 104 Neb. 395, 177 N.W. 650 (1920).
Objection that special findings are not signed is waived unless made before they are received and recorded. Thompson v. Thompson, 49 Neb. 157, 68 N.W. 372 (1896).
It is error for court to enter judgment on general verdict when material special findings are returned unanswered. Sandwich Enterprise Co. v. West, 42 Neb. 722, 60 N.W. 1012 (1894); Doom v. Walker, 15 Neb. 339, 18 N.W. 138 (1884).
In absence of abuse of discretion, refusal to submit special findings is not error. Atchison, T. & S. F. Ry. Co. v. Lawler, 40 Neb. 356, 58 N.W. 968 (1894).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1122 - General and special verdicts; definitions; form of special verdicts generally.

25-1122.
General and special verdicts; definitions; form of special verdicts generally.
The verdict of a jury is either general or special. A general verdict is that by which they pronounce, generally, upon all or any of the issues either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds the facts only. It must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented that nothing remains to the court but to draw from them conclusions of law.
Source
R.S.1867, Code § 292, p. 443;
R.S.1913, § 7861;
C.S.1922, § 8805;
C.S.1929, § 20-1122;
R.S.1943, § 25-1122.
Annotations
Where the jury returned a general verdict in favor of an injured railroad employee on his claims for lost earnings and benefits, it was presumed on appeal that the jury found in favor of the employee on all issues, including lost wages. Heckman v. Burlington Northern Santa Fe Ry. Co., 286 Neb. 453, 837 N.W.2d 532 (2013).
A special verdict is one by which the jury finds the facts only. Baum v. County of Scotts Bluff, 172 Neb. 225, 109 N.W.2d 295 (1961).
Where special verdict found that negligence of plaintiff was more than slight and negligence of defendant less than gross, dismissal of action was proper. Carlson v. Hanson, 166 Neb. 96, 88 N.W.2d 140 (1958).
Where jury finds amount of principal debt, court can compute interest thereon and render judgment for amount due. Wiruth v. Lashmett, 85 Neb. 286, 123 N.W. 427 (1909).
Error cannot be predicated, in absence of proper request, on failure to submit additional questions. Town v. Missouri Pac. Ry. Co., 50 Neb. 768, 70 N.W. 402 (1897).
Where special finding is a conclusion or an inference drawn from others, it may be disregarded. Johnston v. Milwaukee & Wyoming Inv. Co., 49 Neb. 68, 68 N.W. 383 (1896).
Where special findings do not cover entire case, court may refuse to submit same. First Nat. Bank of North Bend v. Miltonberger, 33 Neb. 847, 51 N.W. 232 (1892).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1124 - Rendition of verdict; polling of jury.

25-1124.
Rendition of verdict; polling of jury.
When the jury have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by the foreman. When the verdict is announced, either party may require the jury to be polled, which is done by the clerk asking each juror if it is his verdict. If any one answer in the negative, the jury must again be sent out for further deliberation.
Source
R.S.1867, Code § 290, p. 443;
R.S.1913, § 7863;
C.S.1922, § 8807;
C.S.1929, § 20-1124;
R.S.1943, § 25-1124.
Annotations
Verdict of jury should be received only when judge is present and the court open for the transaction of business; objection to verdict on ground that it was irregularly received by trial court cannot be properly raised for first time in appellate court. In re Estate of Lodge, 123 Neb. 531, 243 N.W. 781 (1932).
Provision that names of jurors must be called by clerk is directory merely. Bryan v. Manchester, 111 Neb. 748, 197 N.W. 425 (1924).
This section does not apply to a criminal prosecution. Evers v. State, 84 Neb. 708, 121 N.W. 1005 (1909).
Mere statement by foreman in open court that jury has agreed, without stating nature of decision, is not a verdict. Union P. R. R. Co. v. Connolly, 77 Neb. 254, 109 N.W. 368 (1906).
Where upon reading of sealed verdict same is challenged by a juror and jury is subsequently unable to agree, it was properly discharged. Lincoln Trac. Co. v. Heller, 72 Neb. 127, 100 N.W. 197 (1904).
By agreement, jury may after agreeing, seal verdict and deliver to officer in charge; when opened in their presence, if defective, jury may be sent out to correct. Rogers v. Sample, 28 Neb. 141, 44 N.W. 86 (1889).
When polling the jury, the trial court is not required to go beyond the procedure specified in this section by inquiring into the basis for the jury's determination of the percentage of a party's negligence, because such inquiry would invade the province of the jury. Anis v. BryanLGH Health System, 14 Neb. App. 372, 707 N.W.2d 60 (2005).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1125 - Five-sixths verdict; jurors to sign.

25-1125.
Five-sixths verdict; jurors to sign.
In all trials in civil actions in any court in this state, a verdict shall be rendered if five-sixths or more of the members of the jury concur therein, and such verdict shall have the same force and effect as though agreed to by all members of the jury;
Provided,
that a verdict concurred in by less than all members of the jury shall not be rendered until the jury shall have had an opportunity for deliberation and consideration of the case for a period of not less than six hours after the same is submitted to said jury. If a verdict be concurred in by all the members of the jury, the foreman alone may sign it, but if rendered by a less number, such verdict shall be signed by all the jurors who shall agree to the verdict.
Source
Laws 1921, c. 124, § 1, p. 534;
C.S.1922, § 8808;
C.S.1929, § 20-1125;
R.S.1943, § 25-1125.
Annotations
A juror is free to deliberate and vote on each issue presented to the jury, even if the juror has dissented from the majority on a previous issue. Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43 (2003).
Even though a juror, who disagreed on the question of who was liable, provided the 10th vote necessary on the damages and apportionment questions, the verdict was valid. Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43 (2003).
Length of time devoted to meals cannot be shown to prove that jury did not deliberate six hours. Cartwright & Wilson Constr. Co. v. Smith, 155 Neb. 431, 52 N.W.2d 274 (1952).
The presumption is in favor of the regularity of the proceeding of the district court and that the jury deliberated six hours before returning the verdict by ten jurors. Lovelace v. Boatsman, 113 Neb. 145, 202 N.W. 418 (1925).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1126 - Jury trial; waiver.

25-1126.
Jury trial; waiver.
The trial by jury may be waived by the parties in actions arising on contract and with assent of the court in other actions (1) by the consent of the party appearing, when the other party fails to appear at the trial by himself or herself or by attorney, (2) by written consent, in person or by attorney, filed with the clerk, and (3) by oral consent in open court entered upon the record.
Source
R.S.1867, Code § 296, p. 444;
R.S.1913, § 7864;
C.S.1922, § 8809;
C.S.1929, § 20-1126;
R.S.1943, § 25-1126;
Laws 2018, LB193, § 14.
Annotations
The client is bound by the attorney's choice to waive a jury trial in a civil action. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021).
A party’s waiver of a jury trial in district court is statutorily governed by this section because it sets reasonable limits on a constitutional right. This section provides an exclusive list of the manners in which a waiver occurs. Unless a party’s conduct falls into one of this section’s three categories, a court will not find a waiver of a constitutional right. It does not provide that a party waives the right to jury trial by failing to demand one. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).
Cases in which the parties tried issues of fact to the court without objection or asked for a directed verdict should be construed as falling into the “oral consent” category of waivers under this section. Such conduct is inconsistent with demanding a jury trial, and the trial court’s judgment operates as its assent to the procedure. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).
Merely failing to object, before trial, to a defendant’s request for a bench trial on a bifurcated affirmative defense is not oral consent in open court to waive a jury trial. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).
A written waiver of jury trial signed by defense counsel in criminal case and acquiesced in by defendant is a valid waiver. State v. Klatt, 192 Neb. 219, 219 N.W.2d 761 (1974).
It is within discretion of trial court to permit a waiver of trial by jury to be withdrawn. McKinney v. County of Cass, 180 Neb. 685, 144 N.W.2d 416 (1966).
In a will contest in district court on appeal, contestant not appearing, proponent may waive jury trial. Shelby v. St. James Orphan Asylum, 66 Neb. 40, 92 N.W. 155 (1902).
Where jury trial is waived, order of argument is subject to discretion of court. Citizens State Bank v. Baird, 42 Neb. 219, 60 N.W. 551 (1894).
Waiver of jury trial may be made in replevin, with assent of court. Baker v. Daily, 6 Neb. 464 (1877).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1128 - Trial by the court; provisions for jury trials applicable.

25-1128.
Trial by the court; provisions for jury trials applicable.
The provisions of this Chapter respecting trials by jury, apply, so far as they are in their nature applicable, to trials by the court.
Source
R.S.1867, Code § 320, p. 448;
R.S.1913, § 7866;
C.S.1922, § 8811;
C.S.1929, § 20-1128;
R.S.1943, § 25-1128.
Annotations
Trial court had authority to vacate judgment it had entered for plaintiff after trial to the court, and to then enter judgment for defendants on motion couched in terms of section 25-1315.02. Woodmen of the World Life Ins. Soc. v. Peter Kiewit Sons' Co., 196 Neb. 158, 241 N.W.2d 674 (1976).
In case tried to judge, handwriting may be compared by him with genuine writing of the same person. First Nat. Bank & Trust Co. v. Cutright, 189 Neb. 805, 205 N.W.2d 542 (1973).
Special findings of fact inconsistent with general findings of court control. Carl v. Wentz, 116 Neb. 880, 219 N.W. 390 (1928).
Procedure upon hearing is assimilated to equity practice; right to open and close is determined by pleadings. Citizens State Bank v. Baird, 42 Neb. 219, 60 N.W. 551 (1894).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1129 - Reference by consent; when allowed.

25-1129.
Reference by consent; when allowed.
All or any of the issues in the action, whether of fact or law or both, may be referred to a referee upon the written consent of the parties or upon their oral consent in court entered upon the record.
Source
R.S.1867, Code § 298, p. 444;
R.S.1913, § 7867;
C.S.1922, § 8812;
C.S.1929, § 20-1129;
R.S.1943, § 25-1129;
Laws 2008, LB1014, § 10;
Laws 2018, LB193, § 15.
Annotations
A referee's factual findings are entitled to some deference, but no such deference is owed to the referee's conclusions or recommendations. Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).
The question of the defendant's agency was within the issue of receivership and therefor within the authority given the referee, and the filing of a supplemental report which recommended appointment of a receiver was proper in this case. Beavers v. Graham, 209 Neb. 556, 308 N.W.2d 826 (1981).
Special master appointed by court is a referee. Gentsch, Inc. v. Burnett, 173 Neb. 820, 115 N.W.2d 446 (1962).
Supreme Court has inherent power to refer original cases. State ex rel. Broatch v. Moores, 56 Neb. 1, 76 N.W. 530 (1898).
Party participating in proceedings before referee is estopped to deny consent to reference. Morris v. Haas, 54 Neb. 579, 74 N.W. 828 (1898).
Court will presume consent was given to action to a referee when record fails to show that objections were made. Hosford v. Stone, 6 Neb. 378 (1877).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1130 - Reference by court order; when allowed.

25-1130.
Reference by court order; when allowed.
When the parties do not consent, the court may, upon application of either, or of its own motion, direct a reference in any equity matter to a referee appointed by the court. The court shall direct a reference to a referee only when caseload and time constraints require such reference, and a referee shall not be appointed to conduct any hearing involving an issue of law and not equity that could result in the exercise of the right to a trial before a jury.
Source
R.S.1867, Code § 299, p. 444;
R.S.1913, § 7868;
C.S.1922, § 8813;
C.S.1929, § 20-1130;
R.S.1943, § 25-1130;
Laws 2008, LB1014, § 11.
Annotations
Trial court can make a reference of an accounting to a referee. Corn Belt Products Co. v. Mullins, 172 Neb. 561, 110 N.W.2d 845 (1961).
Interlocutory order that plaintiff is entitled to account is unnecessary. Bennett v. Baum, 90 Neb. 320, 133 N.W. 439 (1911).
Right to jury cannot be defeated because of issues as to equitable rights. Yager v. Exchange Nat. Bank of Hastings, 52 Neb. 321, 72 N.W. 211 (1897).
Purely legal action cannot be referred, except on consent of parties. Kinkaid v. Hiatt, 24 Neb. 562, 39 N.W. 600 (1888).
Court may refer in partition without consent for taking of account. Mills v. Miller, 3 Neb. 87 (1873).
Where equitable counterclaim is filed in legal action it is not error to overrule general objection to reference of whole cause. Brown v. Keith, 1 Neb. Unof. 649, 96 N.W. 59 (1901).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1132 - Referees; how chosen; number.

25-1132.
Referees; how chosen; number.
In all cases of reference, the parties, except when an infant may be a party, may agree upon a suitable person or persons, not exceeding three, and the reference shall be ordered accordingly; and if the parties do not agree, the court shall appoint one or more referees, not exceeding three, who shall be free from exception.
Source
R.S.1867, Code § 301, p. 445;
R.S.1913, § 7870;
C.S.1922, § 8815;
C.S.1929, § 20-1132;
R.S.1943, § 25-1132.
Annotations
Failure to object to qualifications of referee until after approval of report precluded attack on that ground. Corn Belt Products Co. v. Mullins, 172 Neb. 561, 110 N.W.2d 845 (1961).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1134 - Trial by referee; exceptions; report.

25-1134.
Trial by referee; exceptions; report.
It shall be the duty of the referees to sign any true exceptions taken to any order or decision by them made in the case and return the same with their report to the court making the reference.
Source
R.S.1867, Code § 303, p. 445;
R.S.1913, § 7872;
C.S.1922, § 8817;
C.S.1929, § 20-1134;
R.S.1943, § 25-1134.
Annotations
Referee, and not judge, must settle bill of exceptions. Bennett v. Baum, 90 Neb. 320, 133 N.W. 439 (1911).
This section confers authority upon a referee to sign a bill of exceptions. State ex rel. Dunterman v. Gaslin, 30 Neb. 651, 46 N.W. 917 (1890).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1135 - Reference in vacation; written consent required.

25-1135.
Reference in vacation; written consent required.
A judge in vacation, upon the written consent of the parties, may make any order of reference which the court, of which he is a member, could make in term time. In such case, the order of reference shall be made on the written agreement of the parties to refer, and shall be filed with the clerk of the court with the other papers in the case.
Source
R.S.1867, Code § 304, p. 445;
R.S.1913, § 7873;
C.S.1922, § 8818;
C.S.1929, § 20-1135;
R.S.1943, § 25-1135.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1136 - Referees; oath or affirmation.

25-1136.
Referees; oath or affirmation.
The referees must be sworn or affirmed well and faithfully to hear and examine the cause, and to make a just and true report therein according to the best of their understanding. The oath may be administered by any person authorized to take depositions.
Source
R.S.1867, Code § 305, p. 445;
R.S.1913, § 7874;
C.S.1922, § 8819;
C.S.1929, § 20-1136;
R.S.1943, § 25-1136.
Annotations
Failure to take oath is an irregularity waived by proceeding to trial without objection. Lamaster v. Scofield and Cowperthwait, 5 Neb. 148 (1876).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1137 - Referees; compensation.

25-1137.
Referees; compensation.
The referees shall be allowed such compensation for their services as the court may deem just and proper, which shall be taxed as a part of the costs in the case.
Source
R.S.1867, Code § 306, p. 445;
R.S.1913, § 7875;
C.S.1922, § 8820;
C.S.1929, § 20-1137;
R.S.1943, § 25-1137.
Annotations
Referee's fees are taxed as part of the costs. Corn Belt Products Co. v. Mullins, 172 Neb. 561, 110 N.W.2d 845 (1961).
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1138 - Exception, defined.

25-1138.
Exception, defined.
An exception is an objection taken to a decision of the court upon a matter of law.
Source
R.S.1867, Code § 307, p. 445;
R.S.1913, § 7876;
C.S.1922, § 8821;
C.S.1929, § 20-1138;
R.S.1943, § 25-1138.
2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1139 - Taking and noting of exceptions; unnecessary, when.

25-1139.
Taking and noting of exceptions; unnecessary, when.
Every litigant in any court or in any proceeding to which he is a party before any judge, magistrate, referee, board or tribunal, shall be deemed and taken, both in the trial court and before such judge, magistrate, referee, board or tribunal as well on appeal or error therefrom, as excepting to any judgment, order or other ruling, including the giving or refusal of instructions to the jury, made by such court, judge, magistrate, referee, board or tribunal at any stage of the case or proceeding, that is material and prejudicial to the substantial rights of the litigant and he shall not be required in order to preserve his rights actually to take, or to cause to be noted upon the record, any such exception.
Source
R.S.1867, Code §§ 308, 309, 310, 312, and 313, p. 446;
Laws 1877, § 1, p. 11;
R.S.1913, § 7877;
Laws 1915, c. 147, § 1, p. 317;
C.S.1922, § 8822;
C.S.1929, § 20-1139;
R.S.1943, § 25-1139.
Annotations
An instruction to which no exception is noted on the record when given may be reviewed on appeal, former rule having been changed by statute. Derr v. Gunnell, 127 Neb. 708, 256 N.W. 725 (1934).
Bill of exceptions was sufficient hereunder to protect rights of accused. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Order of court in foreclosure suit, after evidence concluded, requiring defendant to file first brief, must be taken as excepted to, under this section. Quesner v. Novotny, 113 Neb. 827, 205 N.W. 566 (1925).