rants of attorney, for more than was due to the plaintiff, when the defendant was not summoned, or otherwise legally notified of the time and place of taking such judgment.

6199 SEC. 603. [Same-Proceedings.] The proceedings to vacate or modify the judgment or order on the grounds mentioned in subdivisions four, five, six, seven, eight, and nine of the last preceding section, shall be by petition verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On such petition a summons shall issue and be served as in the commencement of an action; Provided, Such summons shall not issue in any case in which there is upon the minutes of the court, or among the files of the case, a waiver of error by the party or his attorney, unless the court, or a judge thereof, shall endorse upon the petition permission to issue such summons.

6200 SEC. 604. [Correction of mistakes-Vacate judgment-When.] The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action. The motion to vacate a judgment because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term.

6201 SEC. 605. [Decision of court.] 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.

6202 SEC. 606. [Judgment not vacated-When liens-Securities preserved.] A judgment shall not be vacated on motion or petition, 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 where a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment.

6203 SEC. 607. [Injunction-Suspending proceedings.] 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.

6204 SEC. 608. [Same.] When the judgment was rendered before the action stood for trial, the suspension may be granted as provided in the last section, 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.

6205 SEC. 609. [When commenced-Limitation.] Proceedings to vacate or modify a judgment or order, for the causes mentioned in subdivision four, five, and seven of section six hundred and two, must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, married woman, or person of unsound mind, and then within two years after removal of such disability. Proceedings for the causes mentioned in subdivisions three and six of the same section, shall be within three years, and in subdivision nine within one year, after the defendant has notice of the judgment.

6206 SEC. 610. [Application to supreme and county courts.] The provisions of this title subsequent to section six hundred and one, shall apply to the supreme court and probate 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 probate court shall, for this purpose, be considered as holding, in each year, three terms of four months each, the first commencing on the first day of January of each year.

6207 SEC. 611. [Cases pending in appellate court.] Cases pending in appellate courts on writs of error or otherwise, when this code takes effect, shall be conducted to final judgment, as if it had not been adopted, and the liens of judgments and decrees rendered when it takes effect shall be preserved.

TITLE XVII.-COSTS.

6208 SEC. 612. [Security-Non-resident plaintiff.] In all cases in which the plaintiff is a non-resident of the county in which the action is to be brought, before commencing such action the plaintiff must furnish a sufficient surety for costs. The surety must be a resident of the county where the action is to be brought, and approved by the clerk. His obligation shall be complete, simply by endorsing the summons, or signing his name on the complaint as security for costs. He shall be bound for the payment of all costs, which may be adjudged against the plaintiff in the court in which the action is brought, or in any other to which it may be carried. and for costs of the plaintiff's witnesses, whether the plaintiff obtain judgment or not, 6209 SEC. 613. [Same-Failure-Action dismissed.] An action in which security for costs is required by the last section, and has not been given shall be dismissed on motion and notice by the defendant at any proper time before judgment, unless in a reasonable time to be allowed by the court, such security for costs be given.

6210 SEC. 614. [Same-Plaintiff becoming non-resident.] If the plaintiff in an action after its commencement, become a non-resident of the county in which it was brought, he shall give security for costs in the manner and under the restrictions provided in the two preceding sections.

6211 SEC. 615. [Additional security.] In an action in which security for costs has been given, the defendant may at any time before judgment, after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court be satisfied that the surety has removed from this state, or is not sufficient, the action may be dismissed, unless, in a reasonable time to be fixed by the court, sufficient security be given by the plaintiff.

6212 SEC. 616. [Judgment against surety for costs.] After final judgment has been rendered in an action in which security for costs has been given,

SEC. 610. See chapter 20, COURTS.

SEC. 612. Security for costs in case stated; dismissal of action; entry of cause on docket of subsequent term ; security given out of time; cause reinstated. 25 Neb., 467. Security given after service of summons sufficient. 12 Neb., 41. Security by partnership. 7 Neb., 246. Statute relative to costs construed strictly. 10 Neb., 308. Plaintiff and defendant primarily liable. 12 Neb., 243, Infant plaintiff not liable for. 8 Neb., 342. Minor heirs as defendants not liable for costs. 21 Id., 412. Where upon a new trial being granted, the plaintiff was permitted to amend his petition by stating more fully a cause of action arising on his contract (not a new cause of action) held, that an order requiring him to pay only a part of the costs then accrued would not be set aside. 17 Neb., 139. Where plaintiff in replevin has given an undertaking to prosecute the action and pay all costs, etc., awarded against him, etc., he cannot in addition be required to give other security for costs. 17 Neb., 702. Costs should be taxed separately; if not so done, supreme court will remand for that purpose. 22 Neb., 171, 204. Where plaintiff brings action to reform a contract, which is resisted by defendant, and defendant files cross-petition, seeking reformation of contract in another particular, which is resisted by plaintiff, and both parties are successful in procuring the reformation asked, it was held, that under the peculiar circumstances of the case the costs of the suit should be equally divided and one-half taxed to each party. 24 Neb., 489. Exorbitant; remedy by motion to retax. Neb., 556. Motion to retax made necessary by mistake, neglect, etc., of the clerk, or irregularity in obtaining a judgment or order, may be made at any time within three years after judgment, upon reasonable notice. to adverse party or his attorney. 17 Neb., 310. Motion to retax should be made in court where the alleged errors occur. 10 Neb., 552. 17 Id., 696. 18 Id., 508. 22 Id., 189. Decision of district court on motion to retax may be reviewed in supreme court. 21 Id., 239.

as required by this chapter, the court on motion of the defendant, or any other person having a right to such costs, or any part thereof, after ten days notice of such motion, may enter up judgment in the name of the defendant, or his legal representatives, against the surety for costs, his executors or administrators, for the amount of the costs adjudged against the plaintiff, or so much thereof as may be unpaid. Execution may be issued on such judgment, as in other cases, for the use and benefit of the persons entitled to such costs.

6213 SEC. 617. [Informers under penal statutes.] If any informer, under a penal statute, to whom the penalty, or any part thereof, if recovered, is given, shall dismiss his suit or prosecution, or fail in the same, he shall pay all costs accruing on such suit or prosecution unless he be an officer whose duty it is to commence the same.

6214 SEC. 618. [Defendant disclaiming.] Where defendants disclaim having any title or interest in land or other property, the subject matter of the action, they shall recover their costs, unless for special reasons the court decide otherwise.

6215 SEC. 619. [Motions-Amendments.] Unless otherwise provided by statute, the costs of motions, continuances, amendments, and the like, shall be taxed and paid as the court in its discretion may direct.

6216 SEC. 620. [Plaintiff-Allowed of course.] Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property.

6217 SEC. 621. [Same not allowed.] If it shall appear that a justice of the peace has jurisdiction of an action, and the same has been brought in any other court, the plaintiff shall not recover costs; and in all actions for libel, slander, malicious prosecution, assault, assault and battery, false imprisonment, criminal conversation, seduction, actions for nuisance, or against a justice of the peace for misconduct in office, if the damages assessed be under five dollars, the plaintiff shall not recover any costs.

6218 SEC. 622. [Defendant-Allowed of course.] Costs shall be allowed of course to any defendant upon a judgment in his favor in the actions mentioned in the last two sections.

6219 SEC. 623. [Under control of court-When.] In other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable.

6220 SEC. 624. [Several actions on one instrument.] Where several actions are brought on one bill of exchange, promissory note, or other obligation or instrument in writing, against several parties, who might have been joined as defendants in the same action, as allowed by section forty-four, no costs shall be recovered by the plaintiff in more than one of such actions, if the parties proceeded against in the other actions were, at the commencement of the previous action, openly within the state.

SEC. 618. Disclaimer cannot appeal. 61 N. W. R., 580.

SEC. 619. On amendment of petition costs taxed to plaintiff. 9 Neb., 5. In bastardy case on verdict of not guilty, court may tax costs against defendant. 14 Neb., 210.

SECS, 620-623. If justice have jurisdiction and action brought in another court, there can be no recovery of costs. 2 Neb., 77. 5 Id., 100. 6 Id., 102. 9 Id., 264, 273, 462. And if action be brought in county court, amount claimed over $100, verdict for less, or amount reduced by set-off to less, there can be no recovery. 5 Neb., 100. 11 Id., 462. But otherwise where plaintiff only claims $50. 9 Neb., 265. And in an action against sheriff to recover value of property levied on, brought in the district court, amount claimed over $100 and recovery less, held, that Justice had jurisdiction, and each party required to pay his own costs. 9 Neb., 473. On trial in county court, plaintiff recovered judgment for $38.77, when defendant appealed: in district court recovered judgment for $18; held, that plaintiff was not entitled to costs. 16 Neb.. 543. În action under sec, 15, chap. 50, Comp. Stat., where damages claimed were five hundred dollars; in county court plaintiff recovered two hundred and five dollars. Upon appeal plaintiff recovered one hundred and eighty-one dollars, held, that plaintiff was not entitled to costs. 16 Neb., 113. Authority of court to apportion costs. 14 Neb., 211. Cited 61 N. W. R. 612.

6221 SEC. 625. [Fees-Summons issued to another county.] When a summons is issued to another county than that in which the action or proceeding is pending, it may be returned by mail, and the sheriff shall be entitled to the same fees as if the summons had issued in the county of which he is sheriff.

6222 SEC. 625a. [Postponement of trial.] That when an application shall be made to a court of record to postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, besides the costs of the term, may in the discretion of the judges be imposed as a condition of granting the postponement. [1875, 63.]

6223 SEC. 6256. [Motion-Demurrers.] Costs may be allowed on a motion or demurrer in the discretion of the court or judge, not exceeding ten dollars, which shall be absolute against the losing party on such demurrer or motion; Provided, That this provision shall not apply to verbal motions and demurrer ore tenus during the course of the trial.

TITLE XVIII.-ACTIONS AND PROCEEDINGS IN PARTICULAR CASES.

CHAPTER I.-ACTIONS CONCERNING REAL PROPERTY.

6224 SEC. 626. [Recovery-Petition--Allegations.] In an action for the recovery of real property, it shall be sufficient, if the plaintiff state in his petition that he has a legal estate therein, and is entitled to the possession thereof, describing the same, as required by section one hundred and thirty-three, and that the defendant unlawfully keeps him out of the possession. It shall not be necessary to state how the plaintiff's estate or ownership is derived.

6225 SEC. 627. [Answer.] It shall be sufficient in such action, if the defendant in his answer deny, generally, the title alleged in the petition, or that he withholds possession, as the case may be; but if he deny the title of the plaintiff, possession by the defendant shall be taken as admitted. Where he does not defend. for the whole premises, the answer shall describe the particular part for which defense is made.

6226 SEC. 628. [Tenants in common.] In an action by a tenant in common of real property, against a co-tenant, the plaintiff must state, in addition to what is required in the first section of this chapter, that the defendant either denies the plaintiff's right, or did some act amounting to such denial.

6227 SEC. 629. [Plaintiff's right terminating during pendency of action.] 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.

6228 SEC. 630. [Two trials allowed.] In an action for the recovery of real property, the party against whom judgment is rendered may, at any time during the term at which the judgment is rendered, demand another trial by notice on the journal, and thereupon the judgment shall be vacated, and the action shall stand for trial at the next term.

SECS. 625a, 625b. "An act to provide for the taxing of costs in certain cases." Laws, 1875, 63.

SEC. 626. Stating cause of action. 9 Neb., 85. 25 Id., 184. Facts need not be specially pleaded. 2 Neb., 118. Plaintiff must show legal title. 5 Neb., 461. Must recover on strength of his own title. 5 Neb., 525. And see generally 6 Neb., 367. 10 Id., 187. 11 Id., 376, 406, 527. 12 Id., 224, 538. 13 Id., 507. 14 Id., 159, 368, 378. 15 Id., 540. 16 Id., 217, 313, 411. 17 Id., 357. 18 Id., 533. 19 Id., 34, 97, 699. 20 Id., 264. 21 Id., 270, 375, 482. 32 Id., 164. 23 Id., 79, 490, 845. 24 Id., 178, 549, 673. 25 Id., 637, 740. 35 Id., 160. Plaintiff must possess legal title. 35 Neb., 224. Action by tenant in common against person without right can recover only to extent of his title. 61 N. W. R., 624.

SEC. 630. Party entitled to two trials by jury; trial by jury may be waived orally and cause submitted to court. 13 Neb., 357. Demand for second trial should be at same term of court at which first trial is had. 15 Neb., 144. After adjournment of term, judgment on first trial is final, and not subject to collateral attack. 16 Neb., 220. Only one trial in actions quia timet. 22 Neb., 671.

6229 SEC. 631. [Same.] No further trial can be had in such action, except upon appeal, unless for good cause shown, as in other actions.

6230 SEC. 632. [Occupying claimants.] The parties in an action for the recovery of property may avail themselves, if entitled thereto, of the relief of the statutes in force for the relief of occupying claimants of land.

6231 SEC. 633. [Waste-Damages.] If a guardian, tenant for life or years, joint tenant or tenant in common of real property, commit waste thereon, he is liable to pay three times the damages which have resulted from such waste, to the person who is entitled to sue therefor.

6232 SEC. 634. [Same-Judgment of forfeiture and conviction.] Judgment of forfeiture and conviction may be rendered against the defendant, whenever the amount of damages so recovered is more than two-thirds the value of the interest such defendant has in the property wasted, and when the action is brought by the person entitled to the reversion.

6233 SEC. 635. [Same-By whom.] 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.

6234 SEC. 636. [Wilful trespass-Damages.] For wilful 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 treble damages at the suit of any person entitled to protect or enjoy the property aforesaid.

6235 SEC. 637. [Same-Wood from uncultivated lands.] Nothing herein contained authorizes the recovery of more than the just value of the timber taken from uncultivated wood land for the repair of a public highway or bridge in its immediate neighborhood.

6236 SEC. 638. [Remaindermen-Reversioners.] The owner of an estate in remainder or reversion may maintain either of the aforesaid actions for injuries done to the inheritance, notwithstanding any intervening estate for life or years.

6237 SEC. 639. [Same-Heirs.] An heir, whether a minor or of full age, may maintain these actions for injuries done in the time of his ancestors as well as in his own time, unless barred by the statute of limitations.

6238 SEC. 640. [Lands sold on execution.] Where lands or tenements are sold by virtue of an execution, the purchaser at such sale may maintain his action against any person, for either of the causes above mentioned, occurring or existing after his purchase.

6239 SEC. 641. [Timber used for repairs.] This provision 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.

6240 SEC. 642. [Same-When deemed waste.] But if for this purpose he employ timber vastly superior to that required for the occasion, he will be deemed to have committed waste, and will be liable accordingly.

CHAPTER II.-ACTIONS ON OFFICIAL SECURITIES.

6241 SEC. 643. [By whom and how brought.] When an officer, executor, or administrator within this state, by misconduct or neglect of duty, forfeits

SEC. 632. See ante, chap. 63.

SEC. 643. In action by a private person, obligee of bond is not a necessary party, even where a reformation of bond is a part of the relief sought. 4 Neb., 566. Whether legatee alone can bring an action on bond of executor, quære. 9 Neb., 290. This section is limited to cases of private injury. 9 Neb., 434. See note to sections 32, 92. See note to chap. 10, "Bonds and Oaths-Official," ante.