§ 25-2224 — Cases not provided for in this code; procedure

Nebraska § 25-2224

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

Text

If a case ever arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this code, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice.

Legislative History

Source: R.S.1867, Code § 901, p. 550; R.S.1913, § 2573; C.S.1922, § 9524; C.S.1929, § 20-2225; R.S.1943, § 25-2224. Annotations: 1. Remedies retained 2. Practice and procedure 3. Miscellaneous 1. Remedies retained Writ of prohibition may still be used in this state. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937). Writ of error coram nobis exists in this state. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935). This section provides for and contemplates continuance of existing common-law remedies available at and prior to adoption of the civil code. Hamaker v. Patrick, 123 Neb. 809, 244 N.W. 420 (1932). While writ of certiorari has been abolished, principles of writ have been preserved by error proceedings. Engles v. Morgenstern, 85 Neb. 51, 122 N.W. 688 (1909). Common-law remedies are continued in force where code has failed to provide a remedy. Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb. 520, 57 N.W. 161 (1893). Common-law and equity practice is available for vacating decrees for fraud. Smithson v. Smithson, 37 Neb. 535, 56 N.W. 300 (1893). 2. Practice and procedure Provisions of civil code not only abolish bills of equity with discovery as incident thereto but prevent incorporation in petitions and answers essential elements on which discovery, under former procedure, was based. Marshall v. Rowe, 126 Neb. 817, 254 N.W. 480 (1934). Party may have equitable relief in probate court; equity pleading applicable. Genau v. Abbott, 68 Neb. 117, 93 N.W. 942 (1903). Procedure in original actions in Supreme Court may be prescribed by its order or in accordance with its rules. In re Petition of Attorney General, 40 Neb. 402, 58 N.W. 945 (1894). Section does not give right to supersede judgment of removal by county board. State ex rel. Dodson v. Meeker, 19 Neb. 444, 27 N.W. 427 (1886). 3. Miscellaneous Purpose of this section was to assure that courts should interpret the code of civil procedure in a liberal spirit. Mathews v. Hedlund, 82 Neb. 825, 119 N.W. 17 (1908). Section is not applicable where remedy provided by code is lost by laches. Flint v. Chaloupka, 81 Neb. 87, 115 N.W. 535 (1908).