49-101. Common law; applicability.
So much of the common law of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this state, or with any law passed or to be passed by the Legislature of this state, is adopted and declared to be law within the State of Nebraska.
Source
Annotations
1. Applicability of common law
2. Conflict with statutory law
3. Inconsistent with needs
4. Miscellaneous
1. Applicability of common law
The common-law writ of error coram nobis exists in this state under this section. State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000); Parker v. State, 178 Neb. 1, 131 N.W.2d 678 (1964); Hawk v. State, 151 Neb. 717, 39 N.W.2d 561 (1949); Swanson v. State, 148 Neb. 155, 26 N.W.2d 595 (1947).
The common law fixes the rights and duties of riparian proprietors, except as modified by the Constitution or statutes. Wasserburger v. Coffee, 180 Neb. 149, 141 N.W.2d 738 (1966).
Common-law rules as to rights and duties of riparian owners, as altered and modified by statute, are in force in this state. Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 140 N.W.2d 626 (1966); Drainage Dist. No. 1 v. Suburban Irr. Dist., 139 Neb. 460, 298 N.W. 131 (1941); Osterman v. Central Nebraska Public Power & Irr. Dist., 131 Neb. 356, 268 N.W. 334 (1936); Kinkead v. Turgeon, 74 Neb. 573, 104 N.W. 1061 (1905), reversed on rehearing, 74 Neb. 580, 109 N.W. 744 (1906); Meng v. Coffee, 67 Neb. 500, 93 N.W. 713 (1903); Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903).
Antenuptial contracts were void at common law. Dorshorst v. Dorshorst, 174 Neb. 886, 120 N.W.2d 32 (1963).
Common-law writ of prohibition is available to litigants in this state. Conkling v. DeLany, 167 Neb. 4, 91 N.W.2d 250 (1958).
Common law was adopted governing relation of landlord and tenant. Wright v. Barclay, 151 Neb. 94, 36 N.W.2d 645 (1949).
Doctrine of demonstrative legacies is in force in Nebraska. In re Estate of Lewis, 148 Neb. 592, 28 N.W.2d 427 (1947).
Common-law remedy of writ of prohibition is not abolished in Nebraska. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).
In this jurisdiction we have adopted the common law of England as governing the relation of landlord and tenant. Roberts v. Rogers, 129 Neb. 298, 261 N.W. 354 (1935).
At common law, there was no incapacity of spendthrifts, and this rule is in force in this state. Taylor v. Koenigstein, 128 Neb. 809, 260 N.W. 544 (1935).
Statute adopts the common law of England and not the statutory law. Brooks v. Kimball County, 127 Neb. 645, 256 N.W. 501 (1934).
Common law is not in force where inapplicable to our needs or conditions or in conflict with constitutional or statutory provisions. Bishop v. Liston, 112 Neb. 559, 199 N.W. 825 (1924).
Common-law barrier to transfer of title to real estate by oral wills still exists in this state. Maurer v. Reifschneider, 89 Neb. 673, 132 N.W. 197, Ann. Cas. 1912C 643 (1911).
Doctrine of charitable uses, being administered as part of common-law jurisdiction of courts of chancery of England exercising judicial powers only, has been transplanted to this state, and in administration and enforcement of such trusts, courts can exercise only judiciary powers. St. James Orphan Asylum v. Shelby, 60 Neb. 796, 84 N.W. 273 (1900).
Rule of common law relating to lien on chattels is in force, in absence of specific agreement. Drummond Carriage Co. v. Mills, 54 Neb. 417, 74 N.W. 966 (1898).
Common law is applicable only insofar as it is suited to the genius, spirit, and objects of its intendments. Cooney v. Moomaw, 109 F.Supp. 448 (D. Neb. 1953).
2. Conflict with statutory law
Common-law rule as to incompetency of parties as witnesses has been changed by statute. Fincham v. Mueller, 166 Neb. 376, 89 N.W.2d 137 (1958).
Common-law rule as to legitimation of children born out of wedlock has been changed by statute. Timmerman v. Timmerman, 163 Neb. 704, 81 N.W.2d 135 (1957).
Common law with respect to partition has been modified by statute in this state. Baskins v. Krepcik, 153 Neb. 36, 43 N.W.2d 624 (1950).
Writ of error coram nobis is not expressly abolished by statute but cannot be used where code provides a remedy. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).
Common-law rule giving executor full title and right to dispose of personal estate of deceased does not prevent prosecution of executor for embezzlement. Pilger v. State, 120 Neb. 584, 234 N.W. 403, 75 A.L.R. 297 (1931).
Statute, defining aiding and abetting as a distinct crime, prevails over common law. Guignon v. State, 101 Neb. 587, 163 N.W. 858 (1917).
Provision of common law, inconsistent with any law passed or to be passed by the Legislature, is not law of this state. Moran v. Moran, 101 Neb. 386, 163 N.W. 315 (1917), overruled on rehearing, 101 Neb. 555, 163 N.W. 1071 (1917).
Mortgage by deposit of title deeds without writing is not effective in this state. Bloomfield State Bank v. Miller, 55 Neb. 243, 75 N.W. 569 (1898).
Whether writ of prohibition may be allowed in this state, in aid of appellate jurisdiction, is doubtful. State ex rel. King v. Hall, 47 Neb. 579, 66 N.W. 642 (1896).
City of Lincoln could not claim sovereign right to priority of payment out of assets of bankrupt trust company under theory that common law authorizes it, inasmuch as such a rule is inconsistent with Nebraska legislation, and the reason on which the common-law rule was based does not exist. City of Lincoln v. Ricketts, 84 F.2d 795 (8th Cir. 1936).
3. Inconsistent with needs
Administrator may maintain action for damages after death of his intestate for pain and suffering inflicted on deceased, notwithstanding cause of action did not survive at common law. Wilfong v. Omaha & C. B. St. Ry. Co., 129 Neb. 600, 262 N.W. 537 (1935).
Action for personal injuries resulting from negligence does not abate on death of wrongdoer before commencement of action, but may be brought against his estate. In re Grainger's Estate, 121 Neb. 338, 237 N.W. 153, 78 A.L.R. 597 (1931).
Common-law rule of estate by entirety does not prevail in this state. Kerner v. McDonald, 60 Neb. 663, 84 N.W. 92 (1900).
Statute of uses is not of the law of this state. Farmers & Merchants Ins. Co. v. Jensen, 58 Neb. 522, 78 N.W. 1054 (1899).
Common-law rule of construction of covenants affecting real estate is not in force in this state. Wattles v. South Omaha Ice & Coal Co., 50 Neb. 251, 69 N.W. 785 (1897).
4. Miscellaneous
If a defendant is denied his right to appeal because of counsel's failure to timely file notice of appeal, the proper means to attack such denial is a motion for postconviction relief and not a motion for writ of error coram nobis. A motion for writ of error coram nobis reaches only matters of fact unknown to the applicant at the time of judgment, not discoverable through reasonable diligence, and which, if known by the court, would have prevented entry of judgment. State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993).
Absence of statute granting interest in improvements to lessee at time school land lease entered required application of rules of this section. State v. Bardsley, 185 Neb. 629, 177 N.W.2d 599 (1970).
Cited in consideration of municipal tort immunity. Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805 (1968).
Doctrine of the right of privacy was not recognized in the common law. Brunson v. Ranks Army Store, 161 Neb. 519, 73 N.W.2d 803 (1955).
The common law is flexible, and by its own principles adapts itself to varying conditions. State v. Tautges, Rerat & Welch, 146 Neb. 439, 20 N.W.2d 232 (1945).
Notwithstanding common-law rule forbidding action for damages for death by wrongful act, pending action for personal injuries does not abate by death of plaintiff. Murray v. Omaha Transfer Co., 98 Neb. 482, 153 N.W. 488 (1915), affirming 95 Neb. 175, 145 N.W. 360 (1914).
Term common law refers to that general system of law prevailing in England and most of the United States, by derivation from England, as distinguished from Roman or civil law system, in force in this territory prior to Louisiana Purchase. Williams v. Miles, 68 Neb. 463, 94 N.W. 705 (1903), 96 N.W. 151 (1903).
Rule that in adopting a statute from another state Legislature also adopts construction put upon it by that state is not absolute. Rhea v. State, 63 Neb. 461, 88 N.W. 789 (1902).
Whether rule of common law, that statutes in derogation thereof are to be strictly construed, is in force in this state, is doubted. Kearney Electric Co. v. Laughlin, 45 Neb. 390, 63 N.W. 941 (1895).
The plaintiff's characterization of his action as one seeking damages for misappropriation of his name and image could not serve as a means to escape the rule announced by the Nebraska Supreme Court that under Nebraska law one has no right to control the use of his name and image. Carson v. National Bank of Commerce Trust & Sav., 501 F.2d 1082 (8th Cir. 1974).
Structure Nebraska Revised Statutes
49-101 - Common law; applicability.
49-201 - Constitutional amendments; proposal by Legislature; resolution.
49-202 - Amendments proposed by Legislature; publication.
49-202.01 - Amendments proposed by Legislature; explanatory statement; requirements.
49-203 - Amendments proposed by Legislature; manner of submission.
49-204 - Amendments proposed by Legislature; election; returns; canvass.
49-206 - Amendments; how enrolled and numbered; duties of Secretary of State.
49-208 - Amendments; official and sample ballots; printing.
49-209 - Amendments; form of ballots; when transmitted.
49-210 - Amendments; election; duties of county clerk or election commissioner.
49-211 - Failure of election officers to make returns; penalty.
49-212 - Constitutional convention; special election; delegates; number.
49-213 - Constitutional convention; proclamation; notice; how conducted; returns.
49-214 - Constitutional convention; candidates nominated by petition.
49-215 - Constitutional convention; candidates; petition; contents.
49-216 - Constitutional convention; petition; oath of signers.
49-217 - Constitutional convention; candidates; petition; statements as to candidates.
49-218 - Constitutional convention; candidates; petition; form.
49-219 - Constitutional convention; candidates; petitions; time of filing.
49-220 - Constitutional convention; candidates; nonpartisan primary; held, when.
49-221 - Constitutional convention; primary election; proclamation; notice; returns.
49-222 - Constitutional convention; delegates; assemble; time; place.
49-223 - Constitutional convention; delegates; vacancy; how filled.
49-224 - Constitutional convention; delegates; incumbent of public office not disqualified.
49-225 - Constitutional convention; rules and regulations; adopt.
49-226 - Constitutional convention; proceedings; debate; record.
49-227 - Constitutional convention; submission of proposals; time; form; manner.
49-228 - Constitutional convention; elections; Election Act applicable.
49-229 - Constitutional convention; delegates; election; ballots; printing; distribution.
49-230 - Constitutional convention; delegates; compensation.
49-232 - Constitutional convention; preliminary survey committee; appointment; duties.
49-233 - Constitutional convention; preliminary survey committee; expenses.
49-235 - Amendments proposed by the Legislature; special election; vote of members; date held.
49-237 - Amendments proposed by the Legislature; special election; expenses; appropriate funds.
49-238 - Amendments proposed by the Legislature; special election; how conducted.
49-301 - Repeal of statutes; pending actions not affected.
49-302 - Repeal of law repealing former law; effect.
49-303 - Repeal of statutes; deferred operative date; effect.
49-501 - Session laws and journals; distribution by Secretary of State.
49-501.01 - Session laws and journal; Clerk of the Legislature; compile; contents.
49-503 - Requisition by county clerk.
49-504 - Copies in possession of county officers; delivery to successors.
49-505 - Distribution to public libraries.
49-506 - Distribution by Secretary of State.
49-507 - Distribution by State Librarian.
49-508 - Distribution to new members of Legislature.
49-509 - Session laws and journals; sale; price; proceeds; disposal.
49-509.01 - Session laws; journals; sale.
49-617 - Printing of statutes; distribution of copies.
49-701 - Revisor of Statutes; office created.
49-702 - Revisor of Statutes; duties.
49-703 - Transferred to section 24-211.03.
49-704 - Revisor of Statutes; printing contracts; approval; number of volumes.
49-765 - Revisor of Statutes; reissuance of volumes; duties.
49-769 - Section of statutes; not correlated; reconcilable; Revisor of Statutes; duties.
49-770 - Section of statutes; not correlated; not reconcilable; Revisor of Statutes; duties.
49-771 - Revisor of Statutes; obsolete sections; compilation; duties.
49-801 - Statutes; terms, defined.
49-801.01 - Internal Revenue Code; reference.
49-802 - Statutes; general rules of construction.
49-804 - Appropriations; validity; requirements.
49-805 - Appropriations; failure to meet criteria; effect.
49-805.01 - Appropriations from state treasury; specific sums.
49-806 - Statutes; list of section numbers; rules of construction.
49-807 - Power of attorney; powers relating to rights of survivorship and beneficiary designations.
49-901 - Commission on Uniform State Laws; creation; members; terms.
49-901.01 - Revisor of Statutes; membership.
49-902 - Members; vacancy in office; filled by Governor.
49-903 - Members; meetings; officers, terms of office.
49-905 - Members; expenses; support of conference; appropriation by Legislature.
49-1201 - Presumption of mailing.
49-1202 - Registered, certified mail; record authenticated; evidence of mailing.
49-1203 - Saturday, Sunday, nonjudicial day, legal holiday; next business day; performance; effect.
49-1301 - Standard time for Nebraska.
49-1302 - Daylight time; when.
49-1402 - Legislative findings.
49-1403 - Definitions, where found.
49-1404 - Administrative action, defined.
49-1405 - Ballot question, defined.
49-1406 - Ballot question committee, defined.
49-1408 - Business with which the individual is associated or business association, defined.
49-1410 - Candidate committee, defined.
49-1411 - Closing date, defined.
49-1412 - Commission, defined.
49-1414 - Compensation, defined.
49-1415 - Contribution, defined.
49-1417 - Elective office, defined.
49-1418 - Executive agency, defined.
49-1419 - Expenditure, defined.
49-1420 - Filed, filer, and filing official; defined.
49-1421 - Financial transaction, defined.
49-1422 - Fundraising event, defined.
49-1424 - Government body, defined.
49-1425 - Immediate family, defined.
49-1427 - Independent committee, defined.
49-1428 - Independent expenditure, defined.
49-1429 - Influencing, defined.
49-1430 - In-kind contribution or expenditure, defined.
49-1431 - Legislative action, defined.
49-1433.01 - Major out-of-state contributor, defined.
49-1434 - Principal, lobbyist, defined.
49-1435 - Nonministerial, defined.
49-1436 - Official in the executive branch, defined.
49-1437 - Official in the legislative branch, defined.
49-1439 - Political merchandise, defined.
49-1440 - Political party, defined.
49-1441 - Political party committee, defined.
49-1442 - Public employee, defined.
49-1443 - Public official, defined.
49-1443.01 - Relative, defined.
49-1444 - State elective office, defined.
49-1446.01 - Committee; certain expenditure of funds authorized.
49-1446.02 - Committee; certain expenditure of funds; prohibited.
49-1446.03 - Committee; expenditure of funds; authorized.
49-1446.04 - Candidate committee; loans; restrictions; civil penalty.
49-1446.06 - Transferred to section 49-1474.02.
49-1447 - Committee treasurer; statements or reports; duties; committee records; violation; penalty.
49-1448 - Commission; rules; purpose.
49-1449 - Committee; statement of organization; filing; procedure; late filing fees.
49-1450 - Committee; statement of organization; contents, enumerated.
49-1451 - Statement of organization; change; late filing fee.
49-1453 - Committee; dissolution; procedure.
49-1454 - Committee; campaign statement; filing; period covered.
49-1455 - Committee campaign statement; contents.
49-1456 - Committee account; income; how treated; loans.
49-1458 - Late contribution; how reported; late filing fee.
49-1459 - Campaign statements; filing schedule; statement of exemption.
49-1461 - Ballot question committee; campaign statement; filing dates.
49-1461.01 - Ballot question committee; surety bond; requirements; violations; penalty.
49-1462 - Committee; campaign statement; when filed; period covered.
49-1463 - Campaign statement; statement of exemption; violations; late filing fee.
49-1463.01 - Late filing fee; relief; reduction or waiver; when.
49-1463.02 - Late filing fees and civil penalties; interest.
49-1464 - Campaign statements of committees; where filed.
49-1465 - Campaign statement; verification statement; signature; requirements.
49-1466 - Dissolved candidate committee; unexpended funds; how treated.
49-1469.01 - Transferred to section 49-1476.
49-1469.02 - Transferred to section 49-1476.01.
49-1469.03 - Transferred to section 49-1476.02.
49-1469.04 - Transferred to section 49-1479.02.
49-1469.05 - Businesses and organizations; separate segregated political fund; restrictions.
49-1469.07 - Businesses and organizations; separate segregated political fund; status.
49-1469.08 - Businesses and organizations; late filing fee; violation; penalty.
49-1470 - Campaign statements; public information; copies, cost; duration kept.
49-1473 - Contributions; legal name of contributor; violation; penalty.
49-1474.01 - Political material; disclaimer requirements; violation; penalty.
49-1474.02 - Dissemination of message by telecommunication or electronic means; requirements.
49-1474.03 - Campaign advertisement; dissemination; applicability; requirements.
49-1475 - Contribution; intermediary or agent of contributor; disclosure; violation; penalty.
49-1476 - Lottery contractor; legislative findings.
49-1476.01 - Lottery contractor; contributions and expenditures prohibited; penalty.
49-1476.02 - Lottery contractor contribution; receipt prohibited; penalty.
49-1477 - Contributions from persons other than committee; information required; violation; penalty.
49-1478 - Expenditure; limitations; reports required; violations; penalty.
49-1478.01 - Late independent expenditure; reports required; late filing fee.
49-1479.01 - Earmarked contribution; requirements; report; late filing fee; violation; penalty.
49-1479.02 - Major out-of-state contributor; report; contents; applicability; late filing fee.
49-1479.03 - Foreign national; contribution to ballot question committee; prohibited; exception.
49-1480 - Lobbyist; registration; application; contents.
49-1480.01 - Application for registration; fee; collection; registration renewal.
49-1482 - Lobbyists and principals; registration fees; disbursement.
49-1483 - Lobbyist and principal; file separate statements; when; contents.
49-1483.02 - Statement; exemption from filing.
49-1483.03 - Lobbyist or principal; special report required; when; late filing fee.
49-1484 - Clerk of the Legislature; refer statements to commission; additional details.
49-1486 - Registration of lobbyists; period valid.
49-1488 - Registered lobbyist; statement of activity during regular or special session; when filed.
49-1488.01 - Statements; late filing fee; reduction or waiver; when.
49-1490 - Principal or lobbyist; prohibited acts relating to gifts; penalty.
49-1492 - Lobbying; prohibited practices; violation; penalty.
49-1493 - Individuals required to file a statement of financial interests.
49-1494 - Candidates for elective office; statement of financial interest; filing; time.
49-1496 - Statement of financial interests; form; contents; enumerated.
49-1497 - Financial institution, defined; irrevocable trust; how treated.
49-1499 - Legislature; discharge of official duties; potential conflict; actions required.
49-1499.02 - Executive branch; discharge of official duties; potential conflict; actions required.
49-1499.04 - Political subdivision; employment of family member; when; exception.
49-1499.05 - Official or employee; abuse of official position.
49-1499.06 - Nebraska Environmental Trust Board; abstention; when.
49-14,100 - Advisory opinions; application; effect.
49-14,101 - Public official, employee, candidate, and other individuals; prohibited acts; penalty.
49-14,102 - Contracts with government bodies; procedure; powers of certain cities; purpose.
49-14,103 - Contract; conflict of interest; voidable; decree.
49-14,103.01 - Officer, defined; interest in contract prohibited; when.
49-14,103.02 - Contract with officer; information required; ledger maintained.
49-14,103.03 - Open account with officer; how treated.
49-14,103.04 - Violations; penalties.
49-14,103.05 - Governing body; prohibit certain contracts.
49-14,103.06 - Governing body; exempt certain contracts.
49-14,103.07 - Filing of potential conflict of interest statement not required; when.
49-14,106 - Commission members; appointment.
49-14,107 - Memberships on commission; increased; when; manner.
49-14,108 - Commission; members; file a statement of financial interests; when.
49-14,109 - Legislative committee; conduct open hearings of persons appointed to the commission.
49-14,110 - Commission; appointments; legislative approval.
49-14,111 - Commission; members; terms.
49-14,112 - Commission; members; vacancy; how filled.
49-14,113 - Individual appointed to fill a vacancy; term.
49-14,114 - Commission; appointed members; prohibited acts; resignation required; when.
49-14,116 - Commission; members; removal; procedure.
49-14,117 - Commission; officers; duties.
49-14,118 - Commission; quorum.
49-14,119 - Commission; meetings; records; notice.
49-14,120 - Commission; members; expenses.
49-14,122 - Commission; field investigations and audits; purpose.
49-14,123 - Commission; duties.
49-14,123.01 - Commission; duty to provide information.
49-14,124 - Alleged violation; preliminary investigation by commission; powers; notice.
49-14,124.01 - Preliminary investigation; confidential; exception.
49-14,126 - Commission; violation; orders; civil penalty; costs of hearing.
49-14,127 - Mandamus to compel civil action; when.
49-14,128 - Reasonable attorney's fees; court order.
49-14,129 - Commission; suspend or modify reporting requirements; conditions.
49-14,131 - Appeal; procedure.
49-14,132 - Filings; limitation of use.
49-14,133 - Criminal prosecution; Attorney General; concurrent jurisdiction with county attorney.
49-14,134 - False statement or report; unlawful; penalty.
49-14,135 - Violation of confidentiality; perjury; penalty.
49-14,136 - Statute of limitations.
49-14,137 - Discipline of public officials or employees; effect of act.
49-14,138 - Local laws of political subdivisions; effect of act.
49-14,139 - Forms; distribution.
49-14,140 - Nebraska Accountability and Disclosure Commission Cash Fund; created; use; investment.
49-14,142 - Payment of civil penalty.
49-1804 - Validity of unsworn declaration.
49-1806 - Form of unsworn declaration.
49-1807 - Relation to Electronic Signatures in Global and National Commerce Act.