§ 25-1904 — Summons in error; praecipe; service; return; fees

Nebraska § 25-1904

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

The summons mentioned in section 25-1903 shall, upon the written praecipe of the plaintiff in error, or his attorney, be issued by the clerk of the court in which the petition is filed, to the sheriff of any county in which the defendant in error or his attorney of record may be; and if the writ issue to a foreign county, the sheriff thereof may return the same by mail to the clerk, and shall be entitled to the same fees as if the same had been returnable to the district court of the county in which said officer resides. The defendant in error, or his attorney, may waive in writing the issuing or service of the summons.

Legislative History

Source: R.S.1867, Code § 585, p. 497; R.S.1913, § 8178; C.S.1922, § 9130; C.S.1929, § 20-1904; R.S.1943, § 25-1904. Annotations: Omission of words "in error" from summons was a noncompliance with a directory provision. Campbell v. City of Ogallala, 178 Neb. 663, 134 N.W.2d 597 (1965). Summons is required to be issued upon praecipe of petitioner. Dovel v. School Dist. No. 23 of Otoe County, 166 Neb. 548, 90 N.W.2d 58 (1958). Summons may be served on attorney of record. Clausen v. School Dist. No. 33 of Lincoln County, 164 Neb. 78, 81 N.W.2d 822 (1957). Waiver is of no effect until petition and transcript are filed, and void if proceedings are commenced after death of client. Ritchey v. Seeley, 68 Neb. 120, 93 N.W. 977 (1903), motion to dismiss granted, 60 Neb. 127, 94 N.W. 972 (1903), affirmed on rehearing 60 Neb. 129, 97 N.W. 818 (1903). Attorney of record at time of trial may waive summons. Dakota County v. Bartlett, 67 Neb. 62, 93 N.W. 192 (1903). If petition and transcript are filed before death, summons may be served upon attorney of record. Link v. Reeves, 63 Neb. 424, 88 N.W. 670 (1902). An appeal from a special assessment by a metropolitan‑class city taken as specified in section 14‑813 means that proceedings from a district court shall be the same as an appeal from a county board, and under this section, that means appeal is taken by petition in error and the review is solely of the record made before the tribunal whose action is being reviewed. Jackson v. Board of Equal. of City of Omaha, 10 Neb. App. 330, 630 N.W.2d 680 (2001).