12 Neb. 156 | Neb. | 1881
Whatever may have been the intention of the legislature in providing two different modes of proceeding in cases of property taken on execution or attachment being-claimed by third persons, one applicable to proceedings in courts of record, and the other to proceedings before justices of the peace; and, although the provisions of the general statute makes “ the provisions of the code of civil procedure, relative to justices of the peace, where no special provision is made in this sub-division, ” apply to the proceedings in all civil actions prosecuted before said probate- judges,” and whatever may have been a correct application of the facts presented in this case, had it arisen while such provisions remained unaffected by subsequent provisions, it is very clear that they must now be construed in the light of the provisions of our present constitution applicable thereto.
Probate courts were unknown to the laws of this state at the date of the proceedings in this case; they having-been abolished by the constitution and county courts provided in their stead, which latter courts were by express provision of said constitution made courts of record. Therefore all provisions of statute applicable to courts of record in general, where no special provision to the contrary exists, must be held to apply to them. And as the proceedings on the part of the plaintiff in error appear to have been substantially in accordance with such provisions, we think the district court erred in excluding the undertaking from the jury.
While the undertaking set out in the petition and agreed ease is not one that we would recommend as a model, yej; the defendants in error fail to point us to any respect in which it fails to comply with the law, and we
The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with law.
Reversed and Remanded.
