Annotations

• 1. Nature and scope

• 2. Miscellaneous

• 1. Nature and scope

• Despite the fact that the traditional distinctions between law and equity have been abolished, those distinctions do control in determining an appellate court's standard of review. Waite v. A. S. Battiato Co., 238 Neb. 151, 469 N.W.2d 766 (1991).

• Application erroneously denominated as for coram nobis considered as petition for post conviction relief for reasons stated. State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975).

• This section is modified by special statute, section 25-1925. Larutan Corp. v. Magnolia Homes Manuf. Co., 190 Neb. 425, 209 N.W.2d 177 (1973).

• In this state there has been a complete merger of legal and equitable remedies. Wischmann v. Raikes, 168 Neb. 728, 97 N.W.2d 551 (1959).

• Distinction between legal and equitable rights has not been abolished. First Nat. Bank of Wayne v. Gross Real Estate Co., 162 Neb. 343, 75 N.W.2d 704 (1956).

• Eminent domain procedure act was not unconstitutional as being amendatory of this section. Jensen v. Omaha Public Power Dist., 159 Neb. 277, 66 N.W.2d 591 (1954).

• Code of civil procedure, as a statute complete in all its parts, should be so construed as to make all of its parts harmonize with each other and render them consistent with its general scope and object. State ex rel. Johnson v. Consumers Public Power Dist., 142 Neb. 114, 5 N.W.2d 202 (1942).

• Code of civil procedure expressly abolished all forms of actions and suits theretofore existing, and substituted one form of action called a civil action. In re Guardianship of Warner, 137 Neb. 25, 288 N.W. 39 (1939).

• The character of the cause of action, as shown by the allegations of the petition, determines whether a particular action is at law or equity, unaffected by the conclusions of the pleader. Mills v. Heckendorn, 135 Neb. 294, 281 N.W. 49 (1938).

• Abolition of common-law names and forms of action has not changed the essential character of judicial remedies. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).

• To review errors of law occurring upon the trial of an equity case, a motion for new trial is necessary. Danbom v. Danbom, 132 Neb. 858, 273 N.W. 502 (1937).

• Both legal and equitable principles may be enforced in the same action, according to the facts. City of Beatrice v. Gage County, 130 Neb. 850, 266 N.W. 777 (1936).

• To maintain a civil action, it is not essential that the action be given any particular name. Rhoads v. Columbia Fire Underwriters Agency, 128 Neb. 710, 260 N.W. 174 (1935).

• Provisions of civil code not only abolish bills of equity with discovery as incident thereto, but prevent incorporation in petition and answer of essential elements on which discovery as it formerly existed, was based. Marshall v. Rowe, 126 Neb. 817, 254 N.W. 480 (1934).

• The distinction between actions at law and suits in equity is abolished. State Bank of Omaha v. Todd, 122 Neb. 557, 240 N.W. 754 (1932).

• Contract between husband and wife may be enforced in civil action. Stenger Benevolent Assn. v. Stenger, 54 Neb. 427, 74 N.W. 846 (1898).

• Abolishing distinctions between law and equity does not deprive the court, while sitting as the court of equity, to submit disputed question of fact to a jury. Alter v. Bank of Stockham, 53 Neb. 223, 73 N.W. 667 (1897).

• 2. Miscellaneous

• Cross-petitions are not limited to strictly equitable actions. Rogers v. Western Electric Co., 179 Neb. 359, 138 N.W.2d 423 (1965).

• Rules of law and doctrines of equity may be enforced in one form of action. Schreiner v. Witte, 143 Neb. 109, 8 N.W.2d 831 (1943).

• A court of equity, having jurisdiction at commencement of suit, will retain it, where issues presented are in nature of an accounting, and are so numerous and distinct, and evidence to sustain them so variant, technical and voluminous that jury is incompetent to deal with them intelligently. Parsons Construction Co. v. Gifford, 129 Neb. 617, 262 N.W. 508 (1935).

• Procedure in workmen's compensation case was equivalent to "civil action." Keil v. Farmers' Irr. Dist., 119 Neb. 503, 229 N.W. 898 (1930).

• There is no distinction as to right of plaintiff to judgment on default, without making proof, whether the cause of action is legal or equitable. Weir v. Woodruff, 107 Neb. 585, 186 N.W. 988 (1922).

• This is only one form of action, in which legal or equitable principles, either or both, may be enforced according to the facts. Kazebeer v. Nunemaker, 82 Neb. 732, 118 N.W. 646 (1908); State ex rel. Horton v. Dickinson, 63 Neb. 869, 89 N.W. 431 (1902); Hopkins v. Washington County, 56 Neb. 596, 77 N.W. 53 (1898).

• Statute of limitations was intended to apply to all forms of the civil action. Boevink v. Christiaanse, 69 Neb. 256, 95 N.W. 652 (1903).