TITLE II.-TIME OF COMMENCING CIVIL ACTIONS. 4541 (5). Civil actions can only be commenced within the time prescribed in this title, after the cause of action shall have accrued. Statute is to be construed as one of repose, not of payment. 5, 370. Payment of part by member of dissolved partnership will take cause out of statute and charge the individual members 5, 375. Statute of limitations does not run against the state. 11, 405 (9 N. W., 543). See 21, 483 (32 N. W., 307); 23, 777 (37 N. W., 657). 4542 (6). An action for the recovery of the title or possession of lands, tenements, or hereditaments, can only be brought within ten years after the cause of such action shall have accrued. *This section shall be construed to apply also to mortgages. Original section read twenty-one years. Amended and all after * added 1869, p. 67. Statute of repose. Must recover on the strength of his own title, not on the weakness of his adversary. 9, 233 (2 N. W., 705). Occupant must not only claim adverse but must occupy adversely during the entire period. 21, 386 (32 N. W., 162). When statute vests occupant with the property. 4, 46. Statute begins to run at once on breach of covenant against incumbrances. To be considered as a statute of repose. 7, 402. Statute of limitation will not run against the cestui que trust in possession of trust property and bar his right to the same in favor of the naked trustee. 21, 412 (32 N. W., 157). Foreclosure of mortgages barred in ten years. 8, 268. Fencing, cultivation, paying taxes, etc., constitute adverse possession. 27, 62 (42 N. W., 915). A deed absolute, but construed as a mortgage upon unoccupied lands, statute of limitations does not begin to run until tender of money due and refusal to reconvey. 1, 244. Mortgage construed as collateral security to note and void when statute of limitations has run against the note. 2, 28. Suit to foreclose mortgage is not barred until ten years from time it is due. 14, 418 (16 N. W., 433). The title of adverse claimant need not be a valid one. Open, notorious, exclusive, adverse possession for ten years gives good title. 17, 237 (22 N. W., 460). Tax deed though void is color of title. Color of title is not necessary to adverse possession. 17, 81 (22 N. W., 453); 17, 94 (22 N. W., 226). Action to foreclose mortgage may be brought at any time within ten years. 12, 464 (12 N. W., 1); 17, 252 (22 N. W., 690). Lease by defendant in ejectment of plaintiff's uninclosed land held not to stop running of statute as to an adjoining strip enclosed by defendant. 24, 669 (39 N. W., 839). Statute not suspended on account of minority of children when it began to run in lifetime of father. 24, 674 (39 N. W., 841). Taking of tax deed does not suspend statute. 27, 54 (42 N. W., 749). On facts stated, held that defendant being in possession for ten years action barred. 22, 696 (35 N. W., 883); 4, 45. See 23, 75 (36 N. W., 361). 4543 (7). Any person entitled to commence any action for the recovery of the title or possession of any lands, tenements, or hereditaments, who may be under any legal disability when the cause of action accrues, may bring such action within ten years after disability is removed, and at no time thereafter. Amended 1873; G. S., 525. 4544 (8). An action for the forcible entry and detainer, or forcible detainer only, of real property can only be brought within one year after the cause of such action shall have accrued. 4545 (9). Civil actions, other than for the recovery of real property, can only be brought within the following periods, after cause of action shall have accrued : A partial payment or new promise made after debt is barred will revive it. 16, 21 (19 N. W., 615, 970). General demurrer raises question of limitations. 16, 4 (19 N. W., 783). 4516 (10). Within five years, an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment. Village warrants barred in five years. 24, 242 (38 N. W., 737). Action to foreclose tax lien barred in five years after time for redemption expires. 21, 547-8 (32 N. W., 598); 27, 434–5 (43 N. W., 256). Action for damages for a breach of covenant may be brought within five years. 21, 533 (32 N. W., 574). A promissory note secured by mortgage is not a specialty within the meaning of the statute. 5, 88. Foreign judgment properly authenticated is conclusive upon the subjectmatter but not upon the jurisdiction of the court in which it was pronounced. 6, 528. Action on foreign judgment may be defended when such judgment was obtained by fraud. 22, 311 (34 N. W., 891). Statute of limitations for and against municipal corporations. 22, 200 (34 N. W., 377). Statute runs during temporary absence from the state. 4, 29. Defendant must have lived five full years in Nebraska before action on foreign judgment is barred. 24, 180, 186 (38 N. W., 820). See 25, 691. Judgment of other state court is a foreign judgment. 25, 107 (41 N. W., 111). See 21, 679 (33 N. W., 478). 4547 (11). Within four years, an action upon a contract not in writing, expressed, or applied; an action upon a liability created by statute, other than a forfeiture or penalty. Has no application to a tax. 18, 202 (24 N. W., 705). Applies to money received by agent for principal. 20, 593 (31 N. W., 240). 4548 (12). Within four years, an action for trespass upon real property; an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud, but the cause of action in such case shall not [be] deemed to have accrued until the discovery of the fraud. Statute commences to run as soon as plaintiff learns facts which, on inquiry suggested thereby, would lead to the discovery of the fraud. 28, 479 (44 N. W., 490). Statute does not begin to run until discovery of fraud. 4, 95. Action by junior incumbrancer on ground of fraud shall be brought within four years from the discovery of the fraud. 21, 421 (32 N. W., 74). Prosecution for bastardy commenced more than four years after birth of child not barred where evidence shows that accused is putative father, and that mother has continued to insist on his supporting it. 24, 781 (40 N. W., 308). See 24, 793 (40 N. W., 309); 28, 571 (44 N. W., 736). 4549 (13). Within one year an action for libel, slander, assault and battery, malicious prosecution, or false imprisonment; au action upon a statute for a penalty or forfeiture, but where the statute giving such action prescribes a different limitation, the action may be brought within the period so limited. 4550 (14). An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any other officer, or upon the bond or undertaking given in attachment, injunction, or in any case whatever required by statute, can only be brought within ten years. Action on county treasurer's bond may be brought any time within ten years. 22, 229 (34 N. W., 629). 4551 (15). Actions brought for damages growing out of the failure or want of consideration of contracts, express or implied, or for the recovery of money paid upon contracts, express or implied, the consideration of which has wholly or in part failed, shall be brought within four years. 4552 (16). An action for relief not herein before provided for, can only be brought within four years after the cause of action shall have accrued. See 21, 433 (32 N. W., 74). 4553 (17). If a person entitled to bring any action mentioned in this title, except for a penalty or forfeiture, be, at the time the cause of action accrued, within the age of twenty-one years, a married woman, insane, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this title after such disability shall be removed. The absence from the state, death, or other disability of a non-resident, save the cases mentioned in this section, shall not operate to extend the period within which actions in rem shall be commenced by and against such non-resident or his representatives. In proceeding in rem absence from the state does not operate to extend time. 5, 466. 4551 (18). All actions or causes of action which are or have been barred by the laws of this state, or any state or territory of the United States, shall be deemed barred under the laws of this state. Intended to include mortgages. 5, 89. See 3, 332; 27, 255 (42 N. W., 1039). 4555 (19). An action shall be deemed commenced, within the meaning of this title, as to the defendant, at the date of the summons which is served on him; where service by publication is proper, the action shall be deemed commenced at the date of the first publication, which publication shall be regularly made. Statute of limitation stops running at the date of summons which is served, and in case of constructive service is at the date of the first publication. 19, 36 (26 N. W.,614). An alias summons in proceedings in error issued more than a year from date of final order is too late. 13,231 (13 N. W., 212). Cited, 11, 343 (7 N. W., 537). 4556 (20). If, when a cause of action accrues against a person, he be out of the state, or shall have absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he come into the state, or while he is absconded or concealed; and if after the cause of the action accrues he depart from the state, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought. Person absent from the state or absconding statute does not run against. 22, 553 (35 N. W, 411). Debtor must reside for the full statutory time within the state before action is barred. 9 502 (4 N. W., 85). Where party makes note in another state and continues to reside there over three years and then removes to Nebraska, he cannot add the time resided there to time resided here to make up the five years' limitation. 12, 501 (11 N. W., 752). This section applies to all personal causes of action whether they accrue within or without this state or in favor of a resident or nonresident thereof. 12, 472 (11 N. W., 729). Cited, 22, 186. 4557 (21). When a cause of action has been fully barred by the laws of any state or country where the defendant has previously resided, such bar shall be the same defense in this state as though it had arisen under the provisions of this title. 4558 (22). In any cause founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made in writing, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise. A promise to be available must be in writing. 20, 594 (31 N. W., 240). promissory note removes the bar of the statute. 14, 194 (15 N. W., 345). dividend by the assignée of an insolvent does not renew the debt. 17, 90 (22 partial payments applied with reference to statute. 23, 587 (37 N. W, 267). (19 N. W., 697); 11, 418 (8 N. W., 391.) Part payment on a 4559 (23). In all actions upon bills of exchange or promissory notes, or other written instruments, whenever any of the parties thereto are designated by the initial letter or letters, or some contraction of the Christian or first name or names, it shall be sufficient to designate such person by the name, initial letter or letters, or contraction of the first name or names, instead of stating the Christian or first name or names in full. 4560 (24). Any company or association of persons formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property in this state, and not incorporated, may sue and be sued by such usual name as such company, partnership, or association may have assumed to itself or be known by, and it shall not be necessary in such case to set forth in the process or pleading, or to prove at the trial the names of the persons composing such com pany. Failure to set out names of partners in petition not fatal. 20, 324 (30 N. W., 53). Action against C. C. and H. R., in business under firm name of C. & R., is an action against the individual members; if one only can be served with summons, jurisdiction over him is required. 27, 200 (43 N. W., 344). A petition in which plaintiffs are set out as "Weiss & Mall Co., a partnership doing business in the state of Iowa," is bad. 28, 566 (44 N. W., 470). In actions against partners on⚫ ⚫ partnership contracts, all partners should be joined, but omission of a party as co-defendant not ground for nonsuit and can only be taken advantage of by plea in abatement properly verified. 1, 290. Makers of note payable to "People's Bank" estopped to deny payee's legal capacity to sue thereon. 27, 580 (43 N. W., 347). Assets of partnership liable for its debts. 3, 261; Incoming partner not liable for previously contracted debts unless there is a special contract with good consideration. 6, 326. Attachment brought by non-resident partnership is not void. 12, 628 (12 N. W., 95). May be proven by admissions of the individual members. 4, 378. Sufficiency of notice, query. 1, 290. See 25, 239 (41 N. W., 151). 4561 (25). Process against any such company or firm shall be served by a copy left at their usual place of doing business within the county, with one of the members of such company or firm, or with the clerk or general agent thereof, and executions issued on any judgments rendered in such proceedings shall be levied only on partnership property. Service on partnership at its usual place of business sufficient. 22, 748 (36 N. W., 147). This is cumulative and does not prevent service on the individuals. 25, 698 (41 N. W., 765). 4562 (26). In cases where a company shall sue in its partnership name, such company shall procure the writ to be endorsed by a responsible surety, resident of the county, for costs, or otherwise give security for costs. Requirement of security for costs is not jurisdictional. 12, 40 (10 N. W., 466). Security for costs is an essential prerequisite to maintenance of an action. 7, 246. But a firm may be surety for plaintiff. 17, 209 (22 N. W., 422). 4563 (27). If the plaintiff, in any judgment so rendered against any company or partnership, shall seek to charge the individual property of the persons composing such company or firm, it shall be lawful for him to file a bill in chancery against the several members thereof, setting forth his judgment and the insufficiency of the partnership property to satisfy the same, and to have a decree for the debt, and an award of execution against all such persons, or any of them, as may appear to have been members of such company, association, or firm. Where action is brought against the partners individually, upon a judgment obtained againstthe firm, the petition must allege that the partnership property is insufficient to satisfy the judgment. 10, 262 (4 N. W., 977); 14, 109 (15 N. W., 232). Sec. 28 repealed. G. S., 713. TITLE III.-PARTIES TO CIVIL ACTIONS. 4564 (29). Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section thirty-two. Real party in interest is party entitled to proceeds. 22, 684 (35 N. W., 869). A naked assignment will not support an action by the assignee. 23, 462 (36 N. W., 755). Where a chose in action is assigned, the assignee is the proper person to bring an action thereon. 1, 328. Action will lie in name of county against treasurer for money due the county. 22, 827 (36 N. W., 515). Action maintained in the name of real party in interest. 4, 185. A person not nominally a party to a suit must be shown by the petition to have some interest in proceedings before he will be allowed to defend. 8, 469. See 25, 238 (41 N. W., 151); 29, 292 (45 N. W., 631). 4565 (30). The assignee of a thing in action may maintain an action thereon in his own name and behalf, without the name of the assignor. 4566 (31). In the case of an assignment of a thing in action the action by the assignee shall be without prejudice to any set-off or other defense now allowed; but this section shall not apply to negotiable bonds, promissory notes, or bills of exchange, transferred in good faith, and upon good consideration before due. Endorsee for collection may sue in his own name, but subject to equitable defenses of maker. 27, 430–1 (43 N. W., 241). Defense available against one not an innocent purchaser; knowledge of agent charges principal. 20, 586 (31 N. W., 387). Assignment of mortgage only to innocent purchaser does not prevent plea of usury. 19, 642 (28 N. W., 286). Assignment of notes secured by real estate mortgage carries the security with it. 4, 209; 5, 210. 4567 (32). An executor, administrator, guardian, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way. Agent may bring suit in his own name when note is made to him or order. 13, 208 (13 N. W., 201). Official bonds, how prosecuted. 9, 434 (2 N. W., 742-892). Action by husband for surrender value of insurance policy on his own life in favor of his wife, sustained. 11, 172 (7 N. W., 745). Cited, 29, 558 (45 N. W., 788). Secs. 33 and 34 repealed. G. S., 713. 4568 (35). If a husband and wife be sued together, the wife may defend for her own right; and, if the husband neglect to defend, she may defend for his right also. 4569 (36). The action of an infant must be brought by his guardian or next friend. When the action is brought by his next friend the court has power to dismiss it if it is not for the benefit of the infant; or to substitute the guardian of the infant, or any person, as the next friend. 4570 (37). The guardian, or the next friend, is liable for the costs of the action brought by him, and, when he is insolvent, the court may require security for them. Either may be a witness in an action brought by him. Infant not liable for costs. If becoming of full age during the pendency of the action he disclaims all benefits, cannot be charged with costs. 8, 343. 4571 (38). The defense of an infant must be by a guardian for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge. The appointment cannot be made until after service of the summons in the action as directed by this code. See 15, 297 (18 N. W., 57). 4572 (39). The appointment may be made under the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the return of the summons. If he be under the age of fourteen, or neglect so to apply, the appointment may be made upon the application of any friend of the infant, or on that of plaintiff in the action. 4573 (40). All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this act. Tenants in common may join in ejectment for possession of real estate. 325). All parties interested in a replevin bond may join in a suit upon it. 219). Applicable to actions in replevin. 21, 710 (33 N. W., 254). 19, 701 (28 N. W., 14, 163 (15 N. W., 4574 (41). Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. Cannot be changed into a suit in equity nor into one for money, neither does offset or counter-claim lie. 20, 299 (30 N. W., 64); 22, 586 (36 N. W., 112). All defendants in a joint judgment are necessary parties to proceedings in error. 29, 622 (46 N. W., 91). 4575 (42). Of the parties to the action, those who are united in interest must he joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition. Not all contributors to fund by which church edifice was built need join in action to restrain sale thereof. 27, 396 (43 N. W., 174). 4576 (43). When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. 4577 (44). Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff. See 1, 460. 4578 (45). An action does not abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein during its pendency, if the cause of action survive or continue. In the case of the marriage of a female party, the fact being suggested on the record, the husband may be made a party with his wife; and in the case of the death or other disability of a party, the court |