NEBRASKA REVISED STATUTES
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25-505.01. Service of summons; methods.
(1) Unless otherwise limited by statute or by the court, a plaintiff may elect to have service made by any of the following methods:
(a) Personal service which shall be made by leaving the summons with the individual to be served;
(b) Residence service which shall be made by leaving the summons at the usual place of residence of the individual to be served, with some person of suitable age and discretion residing therein; or
(c) Certified mail service which shall be made by
(i) within ten days of issuance, sending the summons to the defendant by certified mail with a return receipt requested showing to whom and where delivered and the date of delivery, and
(ii) filing with the court proof of service with the signed receipt attached.
(2) Failure to make service by the method elected by the plaintiff does not affect the validity of the service.
Source: Laws 1983, LB 447, § 22; Laws 1984, LB 845, § 21.
Cross Reference: Workers' compensation cases, manner of service, see sections 48-174, 48-175, 48-175.01, and 48-190.
Case Note:
Plaintiff may elect to have service made by any of the methods specified in the statute.
West Town Homeowners Assn. v. Schneider, 221 Neb. 674, 380 N.W.2d 265 (1986).
25-506.01. Process; by whom served.
(1) Unless the plaintiff has elected service by certified mail, the summons shall be served by the sheriff of the county where service is made, by a person authorized by section 25-507 or otherwise authorized by law, or by a person, corporation, partnership, or limited liability company not a party to the action specially appointed by the court for that purpose.
(2) Service by certified mail shall be made by plaintiff or plaintiff's attorney.
Source: Laws 1983, LB 447, § 23; Laws 1994, LB 1224, § 36; Laws 1999, LB 319, § 1. Effective date August 28, 1999.
Cross Reference: Workers' compensation cases, manner of service, see sections 48-174, 48-175, 48-175.01, and 48-190.
25-507. Process server; requirements; bond; cost.
(1) In any county which does not have a person contracted as a constable pursuant to section 25-2229, any person twenty-one years of age or older or a corporation, partnership, or limited liability company that satisfies the requirements of subsection (2) of this section shall have the same power as a sheriff to execute any service of process or order.
(2) Any person or entity may exercise the powers provided in subsection (1) of this section if such person or entity
(a) is not a party to the action,
(b) is not related to a party to the action,
(c) does not have an interest in the action,
(d) is not a public official employed by the county where service is made whose duties include service of process, and
(e) furnishes a good and sufficient corporate surety bond in the sum of fifteen thousand dollars, such bond being conditioned upon such person or entity faithfully and truly performing the duties of process server.
(3) Evidence of the corporate surety bond shall be provided to the clerk of each court in which such person or entity executes service of process or orders. Such person or entity is not required to furnish more than one bond to execute service of process or orders in any state court in the State of Nebraska. When service of process is made by such person or entity authorized by this section, proof of such service of process shall be shown by an affidavit.
(4) The cost of service of process is taxable as a court cost, and when service of process is made by such person or entity other than a sheriff the cost taxable as a court cost is the lesser of the actual amount incurred for service of process or orders or the statutory fee set for sheriffs in section 33-117.
Source: Laws 1999, LB 319, § 2. Effective date August 28, 1999.
25-507.01. Summons; proof of service; return date.
(1) Within twenty days after the date of issue, the person serving the summons, other than by certified mail, shall make proof of service to the court stating the time, place, including the address if applicable, name of the person with whom the summons was left, and method of service, or return the unserved summons to the court with a statement of the reason for the failure to serve.
(2) When service is by certified mail, the plaintiff or plaintiff's attorney shall file proof of service within ten days after return of the signed receipt.
(3) Failure to make proof of service or delay in doing so does not affect the validity of the service.
Source: Laws 1983, LB 447, § 24.
Cross Reference: Workers' compensation cases, manner and time of service, see sections 48-174, 48-175, 48-175.01, and 48-190.
25-508.01. Service on individual.
(1) An individual party, other than a person under the age of fourteen years, may be served by personal, residence, or certified mail service.
(2) A party under the age of fourteen years may be served by personal, residence, or certified mail service upon an adult person with whom the minor resides and who is the minor's parent, guardian, or person having care of the minor. If none of these can be found, a party under the age of fourteen years may be served by personal service.
(3) If the person to be served is an incapacitated person for whom a conservator or guardian has been appointed or is confined in any institution, notice of the service shall be given to the conservator, guardian, or superintendent or similar official of the institution. Failure to give such notice does not affect the validity of the service on the incapacitated person.
Source: Laws 1983, LB 447, § 25.
Case Note:
Although subsection (3) of this section requires that where summons is served on
an incapacitated person, notice of such service shall be given to the guardian, it also
provides that failure to give such notice will not affect the validity of the service. In
re Interest of A.M.K., 227 Neb. 888, 420 N.W.2d 718 (1988).
25-509.01. Service on corporation.
A corporation may be served by personal, residence, or certified mail service upon any officer, director, managing agent, or registered agent, or by leaving the process at the corporation's registered office with a person employed therein, or by certified mail service to the corporation's registered office. 25-509.01. Service on corporation. A corporation may be served by personal, residence, or certified mail service upon any officer, director, managing agent, or registered agent, or by leaving the process at the corporation's registered office with a person employed therein, or by certified mail service to the corporation's registered office.
Source: Laws 1983, LB 447, § 26.
Cross References: For process and service on foreign insurance corporation, see sections 44-135, 44-2009 to 44-2013, and 44-5507. Registered office of corporation, see sections 21-1909, 21-1971, 21-2034, and 21-20,177.
25-510.02. Service on state or political subdivision.
(1) The State of Nebraska, any state agency as defined in section 81-8,210, and any employee of the state as defined in section 81-8,210 sued in an official capacity may be served by leaving the summons at the office of the Attorney General with the Attorney General, deputy attorney general, or someone designated in writing by the Attorney General, or by certified mail service addressed to the office of the Attorney General.
(2) Any county, city, or village of this state may be served by personal, residence, or certified mail service upon the chief executive officer, or clerk.
(3) Any political subdivision of this state, as defined in subdivision (1) of section 13-903, other than a county, city, or village, may be served by personal, residence, or certified mail service upon the chief executive officer, clerk, secretary, or other official whose duty it is to maintain the official records, or any member of the governing board or body, or by certified mail service to the principal office of the political subdivision.
Source: Laws 1983, LB 447, § 27.
Case Note:
Pursuant to this section, the Attorney General must be served on behalf of the
committee and that service may be accomplished by one of the methods for which provision
is made in subsection (1). Ray v. Nebraska Crime Victim's Reparations Comm., 1 Neb. App.
130, 487 N.W.2d 590 (1992).
25-511.02. Service on dissolved corporation.
A dissolved corporation may be served by personal, residence, or certified mail service upon any appointed receiver. If there is no receiver, a dissolved corporation may be served by personal, residence, or certified mail service upon any person who at the time of dissolution was an officer, director, managing agent, or registered agent, or upon any officer or director designated in the last annual report filed with the Secretary of State.
Source: Laws 1983, LB 447, § 28.
25-512.01. Service on partnership.
A partnership or limited partnership may be served by personal, residence, or certified mail service upon any partner except a limited partner, or by certified mail service at its usual place of business, or the process may be left at its usual place of business with an employee of the partnership or limited partnership.
Source: Laws 1983, LB 447, § 29.
Cross Reference: Registration and agent for service of process of foreign limited partnerships, see section 67-281.
25-513.01. Service on unincorporated association.
An unincorporated association may be served by personal, residence, or certified mail service upon an officer or managing agent, or by certified mail service to the association at its usual place of business, or by leaving the process at its usual place of business with an employee of the unincorporated association.
Source: Laws 1983, LB 447, § 30.
25-514.01. Service on agent.
Any party may be served by personal, residence, or certified mail service upon an agent authorized by appointment or by law to receive service of process.
Source: Laws 1983, LB 447, § 31.
25-516.01. Voluntary appearance; special appearance.
(1) The voluntary appearance of the party is equivalent to service.
(2) Prior to filing any other pleading or motion, a special appearance may be made for the purpose of objecting to the jurisdiction of the court over the person of the defendant. The defendant's assertion of a claim for affirmative relief by way of counterclaim, cross-claim, or third-party claim waives any objection that the court erred in overruling the special appearance. The defendant's participation in proceedings on any issue other than jurisdiction over the person waives any objection that the court erred in overruling the special appearance except the objection that the defendant is not amenable to process issued by a court of this state.
Source: Laws 1983, LB 447, § 32.
25-517.02. Substitute and constructive service.
Upon motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute, the court may 3 N.W. 464 (1913).
2. Publications need not be on same day of week; "week" defined. Burr v. Finch, 91 Neb. 417, 136 N.W. 72 (1912).
3. Notice must be published in all regular issues during week. Smith v. Potter, 90 Neb. 298, 133 N.W. 437 (1911); Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).
4. Notice takes place of summons; publication requiring defendant to answer on second Monday is irregular and may be set aside on motion. Calkins v. Miller, 55 Neb. 601, 75 N.W. 1108 (1898).
5. Four weekly publications are sufficient. Taylor v. Coots, 32 Neb. 30, 48 N.W. 964 (1891); Fouts v. Mann, 15 Neb. 172, 18 N.W. 64 (1883).
6. Notice requiring defendant to answer in forenoon is valid; but has whole day to answer. Armstrong v. Middlestadt, 22 Neb. 711, 36 N.W. 151 (1888).
7. Notice once each week for four successive weeks is completed upon distribution of last publication. Davis v. Huston, 15 Neb. 28, 16 N.W. 820 (1883).
Case Notes - Contents:
1. Publication notice must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons to be served when they are required to answer. Coffin v. Maitland, 146 Neb. 477, 20 N.W.2d 310 (1945).
2. Plaintiff's cause of action is not required to be set out in notice. Smith v. Potter, 92 Neb. 39, 137 N.W. 854 (1912).
3. Notice stating that action was for "partition" of lands was sufficient without reciting "partition or sale." McCormick v. Paddock, 20 Neb. 486, 30 N.W. 602 (1886).
4. Notice in attachment containing general description of property attached is not void. Grebe v. Jones, 15 Neb. 312, 18 N.W. 81 (1883).
Case Note - Miscellaneous:
1. Notice to nonresident herein complied with this section. Armstrong v. Bates, 94 Neb. 462, 143 N.W. 477 (1913).
25-520. Service by publication; when complete; how proved; affidavit of publication.
Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in section 25-519; and such service shall be proved by the affidavit of the printer or his foreman or principal clerk, or other person knowing the same.
Source: R.S. 1867, Code § 80, p. 406; R.S. 1913, § 7643; C.S. 1922, § 8586; C.S. 1929, § 20-520.
Case Notes:
1. In tax foreclosure case, section is strictly construed. Armstrong v. Griffith, 94 Neb. 515, 143 N.W. 461 (1913).
2. Service is complete upon distribution of paper containing its fourth successive weekly insertion. Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).
3. Any one having actual knowledge of facts may make affidavit. Taylor v. Coots, 32 Neb. 30, 48 N.W. 964 (1891).
4. Court may permit amendment of affidavit to conform to facts. Britton v. Larson, 23 Neb. 806, 37 N.W. 681 (1888).
25-520.01. Service by publication; mailing of published notice; requirements; waiver; when mailing not required.
In any action or proceeding of any kind or nature, as defined in section 25-520.02, where a notice by publication is given as authorized by law, a party instituting or maintaining the action or proceeding with respect to notice or his attorney shall within five days after the first publication of notice send by United States mail a copy of such published notice to each and every party appearing to have a direct legal interest in such action or proceeding whose name and post office address are known to him. Proof by affidavit of the mailing of such notice shall be made by the party or his attorney and shall be filed with the officer with whom filings are required to be made in such action or proceeding within ten days after mailing of such notice. Such affidavit of mailing of notice shall further be required to state that such party and his attorney, after diligent investigation and inquiry, were unable to ascertain and do not know the post office address of any other party appearing to have a direct legal interest in such action or proceeding other than those to whom notice has been mailed in writing. It shall not be necessary to serve the notice prescribed by this section upon any competent person, fiduciary, partnership, or corporation, who has waived notice in writing, entered a voluntary appearance, or has been personally served with summons or notice in such proceeding.
Source: Laws 1957, c. 80, § 1, p. 325; Laws 1959, c. 97, § 1, p. 416.
Case Notes:
1. County court which obtained jurisdiction of res of estate upon filing of petition retains jurisdiction until service of notice is perfected or until matter is abandoned. Fischer v. Lingle, 195 Neb. 108, 237 N.W.2d 110 (1975).
2. A mortgagor in a foreclosure proceeding is not entitled to personal service of the published notice of sale. Hollstein v. Adams, 187 Neb. 781, 194 N.W.2d 216 (1972).
3. Copy of notice, mailed hereunder, that a will and codicil are being offered for probate is sufficient to put party upon inquiry as to documents offered. Flint v. Panter, 187 Neb. 615, 193 N.W.2d 279 (1970).
4. This section does not apply to notice of dissolution of corporation. Christensen v. Boss, 179 Neb. 429, 138 N.W.2d 716 (1965).
5. First cousins of testator were not prima facie heirs-at-law, and hence were not required to be notified by mail of pending probate of will. Estate of Colman v. Redford, 179 Neb. 270, 137 N.W.2d 822 (1965).
6. Notice by mail is not required to be given to the holder of a claim for unliquidated damages. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).
7. Notice by mail was not required to be given to property owner of intention by municipality to pass resolution of necessity for constructing sewer system. Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).
8. Notice was not required to be sent to all owners of land within school district of proceedings to change boundaries thereof. Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102 N.W.2d 599 (1960).
25-520.02. Action or proceeding, defined.
The term action or proceeding means all actions and proceedings in any court and any action or proceeding before the governing bodies of municipal corporations, public corporations, and political subdivisions for the equalization of special assessments or assessing the cost of any public improvement.
Source: Laws 1957, c. 80, § 2, p. 326.
Case Notes:
1. The act, of which this section is a part, is not amendatory, but is new and independent legislation. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).
2. Resolution of necessity for constructing a sewer system was not within purview of this section. Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).
3. Statute does not contemplate personal notice must be given to a class on matters of general public concern. Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102 N.W.2d 599 (1960).
25-520.03. Sections, how construed.
Sections 25-520.01 to 25-520.03 are intended by the Legislature to be cumulative and supplemental to existing legislation. They are deemed to be a matter of general statewide concern. Such sections apply to all parties authorized by law to give notice by publication, including the State of Nebraska, its governmental subdivisions, and all public and municipal corporations.
Source: Laws 1957, c. 80, § 3, p. 326.
Case Note:
1. The act, of which this section is a part, is not amendatory, but is new and independent legislation. Farmers Co-op. Mercantile Co. v. Sidner, 175 Neb. 94, 120 N.W.2d 537 (1963).
25-522. Service by publication; designation of newspaper.
It shall be the lawful right of any plaintiff or petitioner in any suit, action or proceeding, pending or prosecuted in any of the courts of this state, in which it is necessary to publish in a newspaper any notice or copy of an order, growing out of, or connected with, such action or proceeding, either by himself or his attorney of record, to designate in what newspaper such notice or copy of order shall be published; and it shall be the duty of the judges of the district court, county judges, or any other officer charged with the duty of ordering, directing or superintending the publication of any of such notices, or copies of orders, to strictly comply with such designations when made in accordance with the provisions of this section.
Source: Laws 1909, c. 94, § 1, p. 399; R.S. 1913, § 7645; C.S. 1922, § 8588; C.S. 1929, § 20-522.
25-523. Legal newspaper, defined; prior publications legalized.
No newspaper shall be considered a legal newspaper for the publication of legal and other official notices unless the same shall have a bona fide circulation of at least three hundred paid subscriptions weekly, and shall have been published within the county for fifty-two successive weeks prior to the publication of such notice, and be printed, either in whole or in part, in an office maintained at the place of publication; PROVIDED, that nothing in this section shall invalidate the publication in a newspaper which has suspended publication or been printed outside of the county, on account of fire, flood or other unavoidable accident, for not to exceed ten weeks, in the year last preceding the first publication of a legal notice, advertising or publication; PROVIDED FURTHER, that all publications made prior to May 22, 1941, in a newspaper which has, on account of flood, fire or other unavoidable accident, suspended publication or been printed in an office outside of the county, are hereby legalized; PROVIDED FURTHER, that all newspapers, otherwise complying herewith, which have, on account of flood, fire or other unavoidable accident, suspended publication or been printed in an office outside of the county, for not to exceed ten weeks in any year, are hereby legalized; AND PROVIDED FURTHER, that the publication of legal or other official notices in the English language in foreign language newspapers published within the county for fifty-two successive weeks prior to the publication of such a notice, and printed either in whole or in part in an office maintained at the place of publication, shall also be legal.
Source: Laws 1915, c. 221, § 1, p. 490; Laws 1919, c. 133, § 1, p. 309; C.S. 1922, § 8589; C.S. 1929, § 20-523; Laws 1935, c. 40, § 1, p. 157; Laws 1941, c. 31, § 1, p. 139; C.S.Supp.,1941, § 20-523; Laws 1943, c. 44, § 1(1), p. 189; R.S. 1943, § 25-523; Laws 1972, LB 661, § 17.
Case Notes:
1. Mechanical act of printing legal newspaper may be performed outside county of place of publication. Wymore Arbor State, Inc. v. Korinek, 182 Neb. 557, 156 N.W.2d 24 (1968).
2. Particular requirements of this section need not be recited in printer's proof of publication. Seymour v. Lawson, 111 Neb. 770, 197 N.W. 623 (1926).
25-525. Judgment on constructive service; how opened; procedure.
A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within five years after the date of judgment or order, have the same opened, and be let in to defend; before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such application, and shall file a full answer to the petition, pay all costs, if the court requires them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judgment or order, as provided by this section, shall be allowed to present counter-affidavits, to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make his defense.
Source: R.S. 1867, Code § 82, p. 406; R.S. 1913, § 7646; C.S. 1922, § 8590; C.S. 1929, § 20-525.
Case Notes-Sufficiency of Application:
1. Before party can have judgment opened, it must appear that he had no actual notice of the pendency of the action in time to make defense. McNally v. McNally, 152 Neb. 845, 43 N.W.2d 170 (1950).
2. Verified petition filed by parties seeking to open up judgment under this section was equivalent to affidavit and answer required thereunder. Nelson v. Nelson, 113 Neb. 453, 203 N.W. 640 (1925).
3. Application was sufficient to authorize vacation of judgment. Eno v. Lampshire, 108 Neb. 265, 187 N.W. 782 (1922).
4. Ordinarily only party can make affidavit, but may be made by attorney where party is nonresident. Cass v. Nitsch, 81 Neb. 228, 115 N.W. 753 (1908).
5. On application, defendant cannot contest sufficiency of original petition; "full answer" means meritorious answer. Oakes v. Ziemer, 62 Neb. 603, 87 N.W. 350 (1901).
6. To permit a defendant to open up decree, full answer to the merits must be presented. Oakes v. Ziemer, 61 Neb. 6, 84 N.W. 409 (1900).
7. Defendant must show he did not have actual notice of suit in time to make defense; adverse party may present counteraffidavits. Stover v. Hough, 47 Neb. 789, 66 N.W. 825 (1896).
8. Party seeking to have judgment opened up must allege and prove bona fides. McGregor v. Eastern B. & L. Assn., 5 Neb. 563, 99 N.W. 509 (1904).
9. Motion to vacate judgment after term must tender valid defense which court will adjudge prima facie valid. Waters v. Raker, 1 Neb. 830, 96 N.W. 78 (1901).
Case Notes-Notice to Plaintiff:
1. Appearance by party to resist motion to vacate waives notice. Scarborough v. Myrick, 47 Neb. 794, 66 N.W. 867 (1896).
2. Proceeding is continuation of original action; service of notice on plaintiff's attorney is sufficient. Merriam v. Gordon, 17 Neb. 325, 22 N.W. 563 (1885).
Case Notes-Title to Conveyed Property:
1. Good faith purchaser of land at judicial sale is protected in event judgment reversed under this section. Pauley v. Knouse, 109 Neb. 716, 192 N.W. 195 (1923); Warren v. Dick, 17 Neb. 241, 22 N.W. 462 (1885).
2. Title of purchaser cannot be litigated in action, except perhaps where bad faith is charged. Security Abstract of Title Co. v. Longacre, 56 Neb. 469, 76 N.W. 1073 (1898).
3. A purchaser of land under a judgment subsequently opened is not a purchaser pendente lite. Scudder v. Sargent, 15 Neb. 102, 17 N.W. 369 (1883).
Case Notes-Miscellaneous:
1. One seeking to open up a judgment secured by constructive service must act within five years and must, by a preponderance of the evidence, show that he had no notice prior to judgment and he must file a meritorious answer. Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977).
2. This section has no relation to filing of claims against estate. Supp v. Allard, 162 Neb. 563, 76 N.W.2d 459 (1956).
3. This section has no reference to a void judgment. Hassett v. Durbin, 132 Neb. 315, 271 N.W. 867 (1937).
4. Action to redeem from tax foreclosure was commenced in time hereunder. Walter v. Union R. E. Co., 107 Neb. 144, 185 N.W. 323 (1921).
5. Section is not applicable to proceedings before drainage district board. Richardson County ex rel. Sheehan v. Drainage Dist., 96 Neb. 169, 147 N.W. 205 (1914).
6. Relief may be granted after five years if proper petitions are presented before expiration of time. Affidavits are amendable. Rine v. Rine, 91 Neb. 248, 135 N.W. 1051 (1912).
7. Section does not relate to void judgments. Herman v. Barth, 85 Neb. 722, 124 N.W. 135 (1910); Hayes County v. Wileman, 82 Neb. 669, 118 N.W. 478 (1908).
8. Owner of land sold under scavenger tax law is not entitled to benefits of this section as matter of right. State v. Several Parcels of Land, 75 Neb. 538, 106 N.W. 663 (1906).
9. Defendant who conveyed his interest by quitclaim deed cannot move to vacate judgment. Browne v. Palmer, 66 Neb. 287, 92 N.W. 315 (1902).
10. Acknowledgment on summons is actual personal service; judgment cannot be opened. Cheney v. Harding, 21 Neb. 65, 31 N.W. 255 (1887).
11. Affidavit by an attorney who has personal knowledge of the want of "actual notice" will be sufficient to open the judgment in absence of counteraffidavits. In re Reed v. Estate of Thompson, 19 Neb. 397, 27 N.W. 391 (1886).
12. Opening judgment upon complying with the requirements of the statute is a matter of right. Brown v. Conger, 10 Neb. 236, 4 N.W. 1009 (1880).
25-527. Procedure when defendants not all served.
Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows:
(1) If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct;
(2) if the action be against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.
Source: R.S. 1867, Code § 84, p. 407; R.S. 1913, § 7648; C.S. 1922, § 8592; C.S. 1929, § 20-527.
Case Notes:
1. Action being for joint and several liability, it could proceed as to the defendants served, under this section. Bourne v. Baer, 107 Neb. 255, 185 N.W. 408 (1921).
2. Section is applicable to proceedings to revive joint judgment. Thornhill v. Hargreaves, 76 Neb. 582, 107 N.W. 847 (1906); Clark v. Commercial Nat. Bank of Columbus, 68 Neb. 764, 94 N.W. 958 (1903).
3. Where principal on injunction bond could not be found in county, it was proper to proceed against surety alone. Gyger v. Courtney, 59 Neb. 555, 81 N.W. 437 (1900).
4. Obligors on joint bond must be joined; may proceed against those served. Perkins County v. Miller, 55 Neb. 141, 75 N.W. 577 (1898); Young v. Joseph Bros. & Davidson, 5 Neb. 559, 99 N.W. 522 (1904).
25-528. Personal service upon appointed resident agent; appointment invalidates constructive service, when.
It shall be lawful for any person, association or corporation, owning or claiming any interest in or lien upon any real estate lying within this state, to make and file in the office of the register of deeds of the county in which such real estate is situated an appointment, in writing, of some person, who shall be a resident of the county in which said lands lie, upon whom process may be served in any suit, action or proceeding, concerning or affecting such real estate, to which such owner or claimant shall be made a party. Such appointment shall be acknowledged in the manner provided by law for the acknowledgment of deeds, and shall specifically describe the lands affected by such appointment. From and after the filing of such appointment as herein provided, service of any writ, summons, order or notice, in any suit, action or proceeding, concerning or affecting such real estate, shall be made upon the person so appointed and designated in such manner as may be provided by law for the service of process upon persons found in this state, and shall be held and taken to be a valid and effectual service upon such owner or claimant. A copy of such appointment, or of the record thereof, duly certified by the said register of deeds, shall be deemed sufficient evidence thereof. No service made by publication shall be valid in respect to any such owner or claimant, who shall have filed an appointment under the provisions of this article; PROVIDED, such appointment may be at any time revoked by such owner or claimant, but such revocation shall be in writing duly acknowledged, and shall specifically describe the lands affected by such appointment, and filed and recorded in the office of the register of deeds of the county in which any such real property is situated.
Source: Laws 1877, § 1, p. 17; R.S. 1913, § 7649; C.S. 1922, § 8593; Laws 1927, c. 65, § 1, p. 227; C.S. 1929, § 20-528.
25-529. Personal service upon appointed resident agent; appointment; recording and indexing; fees.
The register of deeds of each county shall record such appointment as shall be filed under the provisions of section 25-528 and any revocation thereof in the Miscellaneous Record, shall enter such instruments in the numerical index against the lands described therein, and shall be entitled to demand and receive fees as provided in sections 33-109 and 33-112.
Source: Laws 1877, § 2, p. 18; R.S. 1913, § 7650; C.S. 1922, § 8594; Laws 1927, c. 65, § 2, p. 228; C.S. 1929, § 20-529; R.S. 1943, § 20-529; Laws 1984, LB 679, § 11.
25-530.08. Company, firm, or unincorporated association; appointment of agent; execution on judgment; fees.
When a company, firm, or unincorporated association described in section 25-313 has its principal place of business or activity outside of this state and does not have a usual place of doing business or activity within the state or a clerk or general agent within the state, such company, firm, or unincorporated association shall appoint an agent or agents in this state, and before it is authorized to engage in any kind of business or activity in this state, such company, firm, or unincorporated association shall file in the office of the Secretary of State a certified statement setting forth that such company, firm, or unincorporated association is doing business or conducting activities in the State of Nebraska, stating the nature of the business or activity, and designating an agent or agents within the State of Nebraska upon whom process or other legal notice of the commencement of any legal proceeding or in the prosecution thereof may be served. Executions issued on any judgments rendered in such proceedings shall be levied only on property of the company, firm, or unincorporated association. A fee of five dollars shall be paid for filing the certified statement with the Secretary of State. If there is a change of the agent or agents or if there is a change of street address, a statement shall be filed with the Secretary of State stating the name of the new agent or agents or the new street address or both. A filing fee of three dollars shall be paid for the filing of such statement. This section shall not apply to domestic limited partnerships and foreign limited partnerships governed by the Nebraska Uniform Limited Partnership Act.
Source: R.S. 1867, Code § 25, p. 397; R.S. 1913, § 7595; C.S. 1922, § 8538; C.S. 1929, § 20-314; R.S. 1943, § 25-314; Laws 1947, c. 82, § 2, p. 257; Laws 1959, c. 96, § 1, p. 414; Laws 1961, c. 109, § 1, p. 346; Laws 1974, LB 951, § 1; Laws 1983, LB 447, § 16; R.S.Supp.,1984, § 25-314; Laws 1989, LB 482, § 5.
Cross Reference: Nebraska Uniform Limited Partnership Act, see section 67-296.
Case Notes-Right to Serve:
1. An unincorporated association to represent employees in collective bargaining must comply with this section before it may bring an action in court. Nebraska Council of Educational Leaders v. Nebraska Dept. of Education, 189 Neb. 811, 205 N.W.2d 537 (1973).
2. Prior to 1947 amendment, where unincorporated association was not formed to carry on some trade or business, or to hold some species of property in this state, service of process could not be properly made on such association in this state. Hurley v. Brotherhood of Railroad Trainmen, 147 Neb. 781, 25 N.W.2d 29 (1946).
3. Nonresident firm of attorneys, not having office in this state, was not subject to service of process under this section. State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439, 20 N.W.2d 232 (1945).
4. Where the members of a partnership reside in another state and are not within this state, service of summons upon the firm cannot be made in a county where it has no usual place of business. Stelling v. Peddicord, 78 Neb. 779, 111 N.W. 793 (1907).
5. To authorize summons to another county, nonresident must be bona fide defendant. Stull Bros. v. Powell, 70 Neb. 152, 97 N.W. 249 (1903).
6. Section is cumulative, and does not prevent service on individual members of partnership. Herron v. Cole Bros., 25 Neb. 692, 41 N.W. 765 (1889).
7. In suit to enjoin violation of federal statute by members of partnership, federal district court for Missouri, wherein members resided, had jurisdiction although place of partnership's business was in Nebraska. Sutherland v. United States, 74 F.2d 89 (8th Cir. 1934).
Case Notes-Procedure:
1. Defendant having given other reasons for refusing to recognize plaintiff as negotiating agent could not change ground after litigation started and base refusal on tardy filing of certificate designating agent. Orleans Education Assn. v. School Dist. of Orleans, 193 Neb. 675, 229 N.W.2d 172 (1975).
2. In suit against a partnership, filing of a petition by individual partners to remove suit to federal court is not a general appearance but a special appearance only. Security State Bank of Norfolk v. Jackson Bros., Boesel & Co., 130 Neb. 562, 265 N.W. 747 (1936).
3. Service in an action against a partnership may be made by copy left at the usual place of business. Wittstruck v. Temple, 58 Neb. 16, 78 N.W. 456 (1899).
4. Where action is brought against firm in the individual names of its members and one member is absent from state, service upon the others is sufficient. Winters v. Means, 25 Neb. 241, 41 N.W. 157 (1888).
5. Service on partnership at usual place of business is sufficient. Rosenbaum & Co. v. Hayden, 22 Neb. 744, 36 N.W. 147 (1888).
Case Note-Miscellaneous:
Service of process in an action against individual members of a partnership is not governed by this section. Hanna v. Emerson, 45 Neb. 708, 64 N.W. 229 (1895).
25-535. Person, defined.
As used in sections 25-535 to 25-541, person includes an individual, executor, administrator, personal representative, corporation, partnership, limited liability company, association, or other legal or commercial entity, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state.
Source: Laws 1967, c. 143, § 1, p. 439; Laws 1993, LB 121, § 167.
Case Note:
Under this and succeeding sections where copies of complaint, summons, and interrogatories were sent by registered mail to limited partnership defendant at its foreign office, Nebraska long-arm statute was satisfied. Blum v. tes-Subject to Jurisdiction:
1. Nonresident defendant's conduct and connection with the State of Nebraska was such that it reasonably should have anticipated being haled into court over plaintiff's cause of action for the return of its loan application fee. 24th and Dodge Ltd. v. Commercial Nat. Bank, 243 Neb. 98, 497 N.W.2d 386 (1993).
2. In order to subject a defendant to a judgment in personam, if the defendant is not within the territory of the forum, due process requires that such defendant have certain minimum contacts with the forum state so that maintenance of the suit does not offend traditional notions of fair play and substantial justice. McGowan Grain v. Sanburg, 225 Neb. 129, 403 N.W.2d 340 (1987).
3. The establishment of a marital relationship in this state from which a nonresident has left is sufficient minimum contact with this state to permit a court of this state to exercise in personam jurisdiction over the nonresident in an action to dissolve that marriage. York v. York, 219 Neb. 883, 367 N.W.2d 133 (1985).
4. Company having an interest in, using or possessing real property in this state at a time when it was transacting business in this state was subject to jurisdiction of court in this state and its special appearance was properly overruled. Grand Island Hotel Corp. v. Second Island Development Co., 191 Neb. 98, 214 N.W.2d 253 (1974).
5. Nonresident manufacturer comes under long-arm statute when it places its products in the stream of commerce expecting delivery in Nebraska. Stoehr v. American Honda Motor Co., Inc., 429 F. Supp. 763 (D. Neb. 1977).
6. By statute, defendant is under state jurisdiction when defendant contracts for sale of motorcycles in Nebraska. Hetrick v. American Honda Motor Co., Inc., 429 F. Supp. 116 (D. Neb. 1976).
7. Where after defendant Illinois corporation entered into distributorship agreement for Nebraska, area contacts were numerous and continuous. Nebraska corporations antitrust cause of action arose out of interrelated acts allegedly indicating unfair competition; sufficient contacts existed to permit in personam jurisdiction. Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 333 F. Supp. 187 (D. Neb. 1971).
8. Where the delivery, installation, operation, and alleged injury resulting from defective machine occurred in Nebraska, the manufacturer who had shipped same indirectly was subject to Nebraska jurisdiction. Blum v. Kawaguchi, Ltd., 331 F. Supp. 216 (D. Neb. 1971).
Case Notes-Not Subject to Jurisdiction:
1. Neither an act of sexual intercourse between consenting adults nor the failure of a putative father to support his child is an act "causing tortious injury" under the terms of the Nebraska long-arm statute. State ex rel Larimore v. Snyder, 206 Neb. 64, 291 N.W.2d 241 (1980).
2. For tortious act in other state, jurisdiction for damage action in Nebraska not supported by telephone calls, travel to Nebraska, and unspecified acts which induced victim to travel to other state. Von Seggern v. Saikin, 187 Neb. 315, 189 N.W.2d 512 (1971).
3. Where defendants maintained no offices, salespersons, or agents in Nebraska; where contracts neither executed nor performed in Nebraska; where goods neither came from or to Nebraska; the Nebraska contracts insufficient to attach jurisdiction under long-arm statutes. Aaron Ferer & Sons Co. v. American Compressed Steel Co., 564 F.2d 1206 (8th Cir. 1977) affirming, Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450 (8th Cir. 1977).
4. National Trailer Leasing Company under facts of case not subject to jurisdiction under this section which requires actual presence in state plus additional requirement of regular or persistent course of conduct. Peterson v. U-Haul Co., 409 F.2d 1174 (8th Cir. 1969).
5. Where the activities of a physician and hospital in administering chemotherapy treatment were localized and confined to the State of Iowa, there were insufficient contacts with Nebraska for purposes of application of the Nebraska long-arm statute in a wrongful death action against the physician and hospital, notwithstanding the foreseeability of alleged effects occurring in Nebraska where the patient resided. Glover v. Wagner, 462 F. Supp. 308 (D. Neb. 1978).
6. Where purchase contracts were executed outside Nebraska by nonresident sellers for shipment of goods to other states, and defendants did not transact nor solicit business in Nebraska, buyers' Nebraska residence did not give federal court in Nebraska personal jurisdiction in this suit under Bankruptcy Act. Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 418 F. Supp. 674 (D. Neb. 1976).
Case Notes-Miscellaneous:
1. While language of this section does not cover divorce in specific words, it indicates the legislative intention to apply the minimum contacts rule where it does not offend traditional concepts of fair play and substantial justice. Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971).
2. Concept of due process in Nebraska's long-arm statutes is at least as broad as the constitutional standard of due process. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1977).
3. Question of whether in personam jurisdiction is acquired under Nebraska long-arm statute depends primarily on the quantity, nature, and quality of the parties' contacts with the forum state. Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450 (8th Cir. 1977).
4. It is a nonresident defendant's contacts with the forum state that are of interest in determining if in personam jurisdiction exists, not its contacts with the resident plaintiff. Gendler v. General Growth Properties, 461 F. Supp. 434 (D. Neb. 1978).
5. Nebraska long-arm statute is limited only by the constitutional constraints imposed by the minimum contacts rule. Vergara v. Aeroflot Soviet Airlines, 390 F. Supp. 1266 (D. Neb. 1975).
6. Under facts in this case, defendant was amenable to service, and when copy of complaint and a summons were served by registered mail with signed receipt required, requirements of due process were met. General Leisure Products Corp. v. Gleason Corp., 331 F. Supp. 278 (D. Neb. 1971).
25-537. Service outside state.
When the exercise of personal jurisdiction is authorized by sections 25-535 to 25-541, service may be made outside this state.
Source: Laws 1967, c. 143, § 3, p. 439.Case Notes:
1. Unless defendant transacts some business in Nebraska, jurisdiction over him may not be obtained hereunder by service outside the state. Conner v. Southern, 186 Neb. 164, 181 N.W.2d 446 (1970).
2. Concept of due process in Nebraska's long-arm statutes is at least as broad as the constitutional standard of due process. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1977).
25-539. Jurisdiction authorized.
A court of this state may exercise jurisdiction on any other basis authorized by law.
Source: Laws 1967, c. 143, § 5, p. 440.Case Note:
In personam jurisdiction may be acquired over a nonresident defendant in a divorce action by extra-territorial personal service of process made in accordance with a statute of this state if there exists sufficient contacts between the defendant and this state relevant to the cause of action to satisfy traditional notions of fair play and substantive justice. In this case, defendant's last marital domicile was in Nebraska and no showing was made that it was later superseded by a new domicile. Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656 (1971).
25-540. Service outside state; manner.
(1) When the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:
(a) In the manner prescribed for service within this state;
(b) In the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction;
(c) As directed by the foreign authority in response to a letter rogatory; or
(d) As directed by the court.
(2) Proof of service outside this state may be made by affidavit of the individual who made the service or in the manner prescribed by the law of this state, the order pursuant to which the service is made, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction.
Source: Laws 1967, c. 143, § 6, p. 440; Laws 1983, LB 447, § 36.
Cross Reference: Workers' compensation cases, additional nonresident jurisdiction and method of proof of service exists, see section 48-175.01.Case Notes:
1. When service of process is made outside of the state by mail, proof of service shall include a receipt signed by the addressee or other evidence of personal delivery to the addressee satisfactory to the court. Lydick v. Smith, 201 Neb. 45, 266 N.W.2d 208 (1978).
2. Proof of service by mail must include a receipt signed by the addressee, or other satisfactory evidence of personal delivery, and an affidavit to be considered on appeal must be offered in evidence and preserved in the bill of exceptions. Anderson v. Autocrat Corp., 194 Neb. 278, 231 N.W.2d 560 (1975).
3. Where affidavit showed service personally upon defendant Reiff individually and as district manager of defendant corporation, and by certified mail, return receipt requested upon individual defendants in their office in Morton, Illinois, together with return receipts showing that copies of summons and complaint were served upon each, the process was in conformity with this section. Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 333 F.Supp. 187 (D. Neb. 1971).
25-541. Sections, how construed.
Sections 25-535 to 25-541 do not repeal or modify any other law of this state permitting another procedure for service.
Source: Laws 1967, c. 143, § 7, p. 440.Case Notes:
1. A 1974 amendment to this statute was intended to eliminate proceedings in error as a method of obtaining district court review of a county court decision; thus, the action was properly dismissed. SapaNajin v. Wolford, 222 Neb. 387, 383 N.W.2d 796 (1986).
2. On appeal from the county or municipal court to the district court in civil matters under this section, the district court is to review the record and reach an independent conclusion without reference to the decision of the county or municipal court. However, on appeal to the Supreme Court, the judgment of the district court on the facts will not be set aside if there is sufficient competent evidence on the record to support it. Denton v. Nelson, 205 Neb. 833, 290 N.W.2d 462 (1980); County of Merrick v. Beck, 205 Neb. 829, 290 N.W.2d 636 (1980).
3. Order of county court dismissing case for plaintiff's failure to timely answer interrogatories could be set aside by district court upon trial de novo on the record, and Supreme Court will affirm in absence of showing of abuse of discretion. Von Seggern v. Kassmeier Implement, 195 Neb. 791, 240 N.W.2d 842 (1976).
25-542. Service of process; applicability.
Unless specifically provided to the contrary or the context otherwise requires, the provisions of Chapter 25, article 5, on service of process, as such provisions may from time to time be amended, shall apply to all civil proceedings in all courts of this state and to all proceedings under any statute which refers to or incorporates the general provisions on process or service of process.
Source: Laws 1983, LB 447, § 37.25-1223. Subpoena; issuance; by whom served; return; costs.
The clerks of the several courts and judges of the county courts shall on application of any person having a cause or any matter pending in court, issue a subpoena for witnesses under the seal of the court, inserting all the names required by the applicant in one subpoena, which may be served by any person not interested in the action, or by the sheriff, coroner or constable; but when served by any person other than a public officer, proof of service shall be shown by affidavit, but no costs of serving the same shall be allowed, except when served by an officer.
Source: R.S. 1867, Code § 350, p. 452; R.S. 1913, § 7915; C.S. 1922, § 8857; C.S. 1929, § 20-1223.25-1224. Subpoena; to whom directed; duces tecum.
The subpoena shall be directed to the person therein named, requiring him to attend at a particular time and place, to testify as a witness; and it may contain a clause directing a witness to bring with him any book, writing or other thing under his control, which he is bound by law to produce as evidence.
Source: R.S. 1867, Code § 351, p. 452; R.S. 1913, § 7916; C.S. 1922, § 8858; C.S. 1929, § 20-1224.Case Note:
A subpoena duces tecum for trial imposes a duty upon the witness to bring with him sought-after matter under his control that the law requires him to produce as evidence. City of Omaha v. American Theater Corp., 189 Neb. 441, 203 N.W.2d 155 (1973).
25-1225. Subpoena on taking deposition; by whom issued.
When the attendance of a witness before any officer authorized to take depositions is required the subpoena shall be issued by such officer.
Source: R.S. 1867, Code § 352, p. 452; R.S. 1913, § 7917; C.S. 1922, § 8859; C.S. 1929, § 20-1225.25-1226. Subpoena; manner of service; time; return.
The subpoena shall be served either (1) personally or (2) by mailing a copy thereof by either registered or certified mail not less than six days before the trial day of the cause upon which said witness is required to attend. The person making such service shall make a return thereof showing the manner of service.
Source: R.S. 1867, Code § 353, p. 452; R.S. 1913, § 7918; Laws 1915, c. 148, § 2, p. 318; C.S. 1922, § 8860; C.S. 1929, § 20-1226; R.S. 1943, § 25-1226; Laws 1953, c. 69, § 1, p. 220; Laws 1957, c. 242, § 16, p. 830.Case Note:
This section was cited as illustrative of service of process by registered mail. Blauvelt v. Beck, 162 Neb. 576, 76 N.W.2d 738 (1956).
25-1227. Witnesses in civil cases; compulsory attendance; distance required to travel; fees and expenses allowed.
(1) Witnesses in civil cases cannot be compelled to attend a trial out of the state where they are served or at a distance of more than one hundred miles from the place of their residence or from the place where they are served with a subpoena, unless within the same county. Witnesses in civil cases shall not be obliged to attend a deposition outside the county of their residence or outside the county where the subpoena is served.
(2) A district court or county court judge, for good cause shown, may, upon deposit with the clerk of the court of sufficient money to pay the legal fees and mileage and reasonable expenses for hotel and meals of such a witness who attends at points so far removed from his or her residence as to make it reasonably necessary that such expenses be incurred, order a subpoena to issue requiring the trial attendance, but excluding a deposition appearance, of such witness from a greater distance within the state than that provided in subsection (1) of this section. Mileage shall be computed at the rate provided in section 81-1176. The subpoena shall show that it is issued under the provisions hereof. After the appearance of such witness in response to any such subpoena, the judge shall enter an order directing the payment to the witness from such deposit of such legal fees, mileage, and the actual expenses for hotel and meals incurred by such witness. If such deposit is not adequate for such purpose, the judge shall direct the party procuring the issuance of such subpoena to pay to such witness the deficiency.
(3) No other subpoena except from the district court or county court can compel a witness to attend for examination on the trial of a civil action, except in the county of his or her residence, nor to attend to give his or her deposition out of the county where he or she resides, or where he or she may be when the subpoena is served upon him or her.
Source: R.S. 1867, Code § 354, p. 452; R.S. 1913, § 7919; C.S. 1922, § 8861; C.S. 1929, § 20-1227; R.S. 1943, § 25-1227; Laws 1963, c. 142, § 1, p. 521; Laws 1981, LB 204, § 38; Laws 1998, LB 234, § 5. Effective date July 15, 1998.Case Notes:
1. Section is valid and constitutional. Brannan v. Chicago & N.W. Ry. Co., 118 Neb. 503, 223 N.W. 21, 225 N.W. 474 (1929).
2. Mileage is not allowed except for distance actually and necessarily traveled. Smith v. Bartlett, 78 Neb. 359, 110 N.W. 991 (1907).