COURTS-PROBATE (COUNTY).

CH. 20

SEC. 14. Same.]-Upon the filing of such demand for a jury, the probate judge shall cause a jury to be selected and summoned in the same manner as provided for selecting jurors in civil actions before justices of the peace.

SEC. 15. Calendar.]-The probate judge, shall, on the first day of each term, or as soon thereafter as may be, prepare [a] calendar of the causes standing for trial at such term, placing the causes upon such calendar in the order in which the same are numbered on the docket, and setting the causes for trial, in such order, upon convenient days during such term; and the provisions of this code relative to the trial docket in the district court shall, so far as they are in their nature applicable, apply to such calendar.

SEC. 16. [Arrest and attachment.]-Orders for arrest and for attachments of property may issue in actions brought under this chapter, but when the demand in such action exceeds the jurisdiction of a justice of the peace, the proceedings upon such orders shall be the same, as near as may be, as in actions brought in the district court. The return day of such orders shall, when issued at the commencement of the action, be the same as that of the summons; when issued afterwards, they shall be made returnable forthwith. [Amended 1883, chap. XXXVIII.1

SEC. 17. [Stay of execution.]-Any person against whom a judgment is rendered, on all sums exceeding two hundred dollars, may have stay of execution in like manner as upon judgments rendered in the district court, and upon the same conditions; and upon all sums of two hundred dollars and under, the same as provided for in actions before justices of the peace. [Amended 1885, chap. 46.]

SEC. 18. [Transcripts.]-Any person having a judgment rendered by a probate court, may cause a transcript thereof to be filed in the office of the clerk of the district court in any county of this state, and when said transcript is so filed, and entered upon the judgment record, such judgment shall be a lien on real estate in the county where the same is filed, and when the same is so filed and entered upon such judgment book, the clerk of such court may issue execution thereupon in like manner as execution is issued upon judgments rendered in the district court.

SEC. 19. [Execution.]-The probate judge shall issue execution on judgments rendered by said court, and the proceedings upon any such execution shall, in all cases, be as is provided by law governing executions issued upon the judgments of a justice of the peace.

SEC. 20. [Signing and sealing process.]—All writs, citations, and all process in civil actions, issuing out of any probate court, shall be under the seal thereof, and be signed by the probate judge.

SEC. 21. [Process.]-All process in civil actions in such court shall be directed to the sheriff or any constable of the county and the same shall be served by the officer to whom it is directed, and return thereof made at the time therein directed; and for any neglect or omission to do so, he and his sureties may be proceeded against in like manner as in similar cases before justices of the

peace.

SEC. 22. [Service of process.]-All writs, notices, orders, citations and other process, except in proceedings for contempt, may be served in like manner as a summons in a civil action in the district court, and the service of the same

SEC. 15. Cited 17 Neb. 50.

SEC. 16. Cited 20 Neb. 506. Issuance of order of sale, even if erroneous, would be no reason why judgment should be reversed; proper practice would be, to move county court for a return and vacation of the order of sale 17 Neb. 696.

SEC. 17. Stay of execution on judgments exceeding $100 are governed by sec. 481, civil code, and the requirements of that section is not answered by giving an undertaking signed by sureties alone. 7 Neb 418. SEC. 18. See 5 Neb. 47. 7 Neb. 165. Judgment made lien on real estate by filing transcript in office of clerk of district court. 18 Neb. 563. 19 Id. 687.

by a copy thereof left at the usual place of residence of the party to be served, shall be deemed equivalent to personal service thereof in cases where personal service is required by law; but to bring a party into contempt there must have been actual personal service of the process upon the disobedience of which the contempt is founded, and there must be actual personal service of all process in the proceedings for contempt. In cases where writs, notices, citations or other process cannot be served as aforesaid in this state, the probate court may, in cases where it may be necessary, order the service thereof to be made by publication in some newspaper in this state in such manner as the court may direct, and thereupon the same proceedings may be had as in [if] such writs, or other process had been served as aforesaid in this state. Nothing contained in this section shall limit or take away the power of the probate court or judge thereof, to give notice or cause the same to be given by publication in the various cases provided by law.

SEC. 23. Service in other counties.]-All writs and other process, except subpoenas, may be executed and served, as the case may require, in any county in the state; and if it be a county other than that of the residence of the probate judge, the same shall be directed to the sheriff of such other county.

SEC. 24. Duties of sheriffs.]--It shall be the duty of the sheriffs of the several counties to execute or serve all writs and process issued by any probate court and to them directed, and to return the same; for any neglect or refusal so to do,they [may] be proceeded against in the probate court the same as for a neglect or refusal to execute or serve process issued out of the district court. [11 Neb. 472.] SEC. 25. [Repealed 1877,16. 10 Neb. 268.]

SEC. 26. Appeals, etc.]-In civil actions brought under the provisions of this chapter, eitner party may appeal from the judgment of the probate court, or prosecute a petition in error, in the same manner as provided by law in cases tried and determined by justices of the peace. The amount of the bond or undertaking taken shall be double the amount of the judgment and costs, and shall be approved by the probate judge.

EVIDENCE.

SEC. 27. (Depositions, how taken.]-Depositions may be taken to be used in evidence in any cause, matter or proceeding pending in any probate court, in the like manner and upon the like notice as in actions in the district court. Depositions so taken must be addressed and transmitted to the judge of the court in which the cause, matter or proceeding is pending.

MISCELLANEOUS PROVISIONS.

SEC. 28. [Continuance of causes.]-When for any cause the probate judge fails to attend at the commencement of any regular term, or at the time when any cause is assigned for trial, or at the time to which any cause may be continued, the parties shall not be obliged to wait more than one hour, and if he does not attend within the hour, the parties in attendance shall be required to attend at nine o'clock A. M. of the following day, and if such judge shall not attend at that time, the cause shall stand continued until the first day of the next regular term. This section shall apply only to causes not cognizable before justices of the peace.

SEC. 29. [Appearances.)-In all actions brought in the probate court in pursuance of the provisions of this chapter, parties, jurors and witnesses shall be obliged to appear at the time when the summons is returnable, or at which the cause is assigned for trial, or to which it may be continued.

SEC. 30. [Adjournments.]—The provisions of this code relative to adjournment of causes before justices of the peace, shall apply to civil actions in the probate court not cognizable before such justices, so far only as the causes for

SEC. 26. Unless the cause is tried by a jury a bill of exceptions is of no avail in the district court upon. a petition in eiror. 3 Neb. 341. 4 Neb. 96. See 14 Id. 240.

adjournment and the conditions to be imposed thereon are concerned, but the time for which the cause may be adjourned, shall be regulated by the probate judge in the exercise of a reasonable discretion; Provided, That such action cannot be adjourned over more than three regular terms of said court, upon the application of either party, without consent of the other.

SEC. 31. [Docket.]-The probate judge shall keep a docket in which all of his proceedings in civil actions shall be entered in like manner as near as may be, as the proceedings before justices of the peace in civil actions; and the provisions of this code relating to justices' docket shall, as near as may be, apply to the docket of the probate judge.

SEC. 32. [Probate books.]-The probate books shall consist of a record, entry, estate and fee book, which shall be kept as follows: I. The record book shall contain a full record of all wills, testaments and codicils, and the probate thereof, all letters testamentary, of administration and guardianship, and all bonds of executors, guardians and administrators. The original papers shall be filed and preserved in the office. II. There shall be entered in the estate book all inventories, appraisements, sale bills and other exhibits and reports received by the court, relative to the settlement or disposition of estates, showing the amount of all such estates, as shown by such instruments. III. The entry book shall contain a fair statement of all the matters, controversies and suits that may have arisen for decision and adjudication before said court, with the names of the parties, dates of each entry, and the judgment or opinion of the court, and all orders thereof, and a full record of all determinations of the district or supreme court upon appeal or petition in error in such matters, controversies and suits. IV. The fee book shall contain an exact account of all fees allowed and paid in each case, showing the names of the persons receiving the same, and for what such fees were paid.

SEC. 33. [Index.]-An index shall be attached to each book required to be kept by the probate judge, in which shall be inserted [in] alphabetical order the names of the parties or persons in which [whose] names the entries in such books are made.

SEC. 34. [Records.]-Every record made in any probate court, excepting original orders, judgments and decrees thereof, shall have attached thereto a certificate signed by the judge of such court, showing the date of such record and the county in which the same is made, and it shall not be necessary to call such judge or his successor in office to prove such record so certified. And in any cause, matter or proceeding in which the probate court or probate judge has jurisdiction, and is required to make a record not provided for in this chapter, such record shall be certified in the same way and with like effect as aforesaid.

SEC. 35. [Disqualification of judge.]-When any probate judge shall be disqualified from acting in any cause or matter before him, or is temporarily absent from the county, the county commissioners may appoint a competent and disinterested person to act in place of such judge, in such case or other matter, during such absence or disqualification, who shall give bonds in the same manner and possess the same powers, and be subject to the duties, restrictions and liabilities therein as are prescribed by law respecting probate judges.

SEC. 36. [Repealed by 1881, chap. 14. See ante p. 75.]

SEC. 37. [Bonds.]-All bonds required by law to be taken in, or by order of the probate court, shall be for such sum with such sureties as the judge shall prescribe, except as otherwise provided by law, and such bonds shall be for the security and benefit of all persons interested, and shall be taken to the state of Nebraska, except where they are required to be taken to the adverse party.

SEC. 38. [Repealed Chap. 1, Title XXV, R.S. 534; Laws 1870, 7.] SEC. 39. [Proving records.]-That in all cases where lands have been

SEC. 35. In the absence of a record to the contrary it will be presumed that one acting as probate judge was appointed under the provisions of this section. 3 Neb. 343. See note to sec. 3 and 17 Neb. 523. SECS. 39-41. "An act prescribing the method of proving records of probate courts relative to the sale of

sold by order of the probate court in any county in the territory or state of Nebraska, on application of the guardian of any minor child, or children, or executor, or administrator, and it shall appear in any action in any court held within this state relating to the title to such land, that the record or any part of the record, of such sale is imperfect or deficient, or that such record or any part thereof, or any paper or papers, notice, affidavit, document, instrument, or any proceeding whatsoever, from the filing of the petition for license to sell until the execution of the deed to the purchaser, has been lost or destroyed by fire or otherwise, or cannot be found, the contents of such record, paper, notice, affidavit, document, instrument or other proceeding, may be proved in the same manner as in case of other lost instruments or papers, by secondary evidence, and when so proved, they shall have the same effect as if proven by the production of the original record, paper, notice, affidavit, document, instrument, or other proceedings, or by a duly certified copy thereof. [G. S. § 1, 271.]

SEC. 40. [Same-Bonds of guardians, etc.]-When in such action it shall appear, that the record, or any bond, paper, instrument, or other proceeding connected with the appointments of the guardian, executor, or administrator, by whom such sale was made, has been lost or destroyed by fire or otherwise, or cannot be found, the contents thereof may be proven in the manner and with the effect prescribed in section one of this act, as to the matters therein provided for. [Id. § 2.

SEC. 41. [Perpetuating testimony.]-The testimony of any witness, as to any matter or thing mentioned in this act, may be perpetuated and shall be received and admitted, in any action aforesaid, and with the effect prescribed in this act in the same manner as prescribed by law in other cases. [ld. § 3.]

SEC. 42. [Appeals in probate matters.]—In all matters of probate jurisdiction, appeals shall be allowed from any final order, judgment or decree of the county court, to the district court by any person against whom any such order, judgment or decree may be made, or who may be effected thereby. [1881 § 1, 227.j

SEC. 43. [When taken.]—All appeals shall be taken within thirty days after the decision complained of is made. [Id. § 2.]

SEC. 44. [Bond-Cost-Attorney's fee.]-Every party so appealing shall give bond in such sum as the court shall direct, with two or more good and sufficient sureties, to be approved by the court, conditioned, that the appellant will prosecute such appeal to affect without unnecessary delay, and pay all debts, damages and costs that may be adjudged against him. The bond shall be filed within thirty days from the rendition of such decision. But an executor, administrator, guardian, or guardian ad litem, shall not be required to enter into bond in order to enable him to an appeal. If it shall appear to the court that such. appeal was taken vexatiously or for delay, the court shall adjudge that the appellant shall pay the costs thereof, including an attorney's fee to the adverse party, the court to fix the amount thereof, and said bond shall be liable therefor in cases where it is required. [Id. § 3.]

SEC. 45. [Effect of bond.]-After such bond has been filed, the appeal shall be granted, but shall not be a supersedeas in any other matter relating to the administration of the estate, except that from which the appeal is specially taken. [Id. § 4.]

SEC. 46. [Transcript.]-When such appeal is taken, the county court shall, in payment of his fees therefor, transmit to the clerk of the district court within ten days after perfecting such appeal, a certified transcript of the record and procedings relative to the matter appealed from. [Id. § 5.]

SEC. 47. [Proceedings in district court.]--Upon the filing of such transcript in the district court, that court shall be possessed of the action, and

lans and appointment of guardians, executors, and administrators, in certain cases, and perpetuating the evidene thereof. G. S. 271. Statute applies to all cases where records are lost or destroyed. 18 Neb. 152.

SECS. 42-48. "An act providing for an appeal from the decision of the county court in certain matters." Appoved Feb. 28. Took effect June 1, 1881. See 12 Neb. 345. 13 Id. 9. Notice not required. 16 Id. 294.

shall proceed to hear, try and determine the same, in like manner as upon appeals, brought upon the judgement of the same court in civil actions. [Id. § 6.]

SEC. 48. [Judgment.]-The final decision and judgment in matters so appealed, shall be certified to the county court, and proceedings shall be had thereon necessary to carry the final decision and judgment into execution. [Id. § 7.]

CHAPTER 21.-DAMAGES.

SECTION 1. [Caused by death.]-That whenever the death of a person shall be caused by the wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then, and in every such case, the person who, or company, or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. [G. S. § 1, 272.]

SEC. 2. [Action for.]-That every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action, shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries, resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of five thousand dollars; Provided, That every such action shall be commenced within two years after the death of such person.

SEC. 3. [Provided for act to take effect May 1, 1873.]

CHAPTER 22.-DEAF AND DUMB INSTITUTE.

SECTION 1. [Officers interested in contracts.]-No director, officer, or agent, of the institute, shall be interested in any contract with the corporation; nor in the changing or exchanging of commodities of any kind whatever, nor shall any director be employed in, or appointed to any office or place of emolument, in said institution. [1875 § 8, 147.]

SEC. 2. [Directors-Powers-Employees.]-The said directors are vested with power to appoint or employ, and remove or discharge at pleasure, a principal, matron, teacher, and agents necessary to the successful operation of the institution, and prescribe and regulate their duties, and to fix the salaries or compensation of each. [Id. § 4.]

SEC. 3. [Directors to hold property.]-To enable the said directors to execute the provisions of this act, they are authorized to receive, have, hold, and use property of every description, as well as money from any county or corporation, or from any person desiring to aid in sustaining the institution; Provided, That whatever may be conveyed or donated, as aforesaid, shall be used as directed by the grantor, or donor, if accepted, and for no other purpose. [Id. § 7.]

SEC. 4. [Object of institution.]-The object of said institution shall be to promote the intellectual, physical and moral culture of the deaf and dumb, by a judicious and well adopted course of instruction, that they may be reclaimed from their lonely and cheerless condition, restored to society, and fitted for the discharge of the duties of life. [Id. § 8.]

SEC. 5. [Inmates—Admittance.]-All the deaf and dumb residing in

CHAP. 21. Being chapter 15 General Statutes, 1873. Action must be brought by personal representstives of deceased. 12 Neb. 3. Husband cannot recover for death of wife. 13 Id. 286. In action by personal representatives of deceased person, it must be alleged in petition that deceased left a widow, or next of kin or both according to the fact. 17 Neb. 573. Amount recoverable is a question for jury. 18 Neb. 699.

CHAP. 22. "An act to provide for the government of the institute for the deaf and dumb, and for other purposes." Laws 1875, 147. The government of this institution being vested in board of public lands and buildings, and the sections of the original act, 1, 2, 5, 6 being abrogated, are omitted. See Art. V. §19, Const Art. VII. chap. 83, post. Certain special acts relative to erection of buildings, etc. (1871, 94; 1879, 419; 1881, 229), are also omitted. By sec. 11 of the original act (G. S. 275), this institution was locacted at Omaha,