49-101 Common law; applicability. - Nebraska Statutes

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. SourceR.S.1866, c. 7, § 1, p. 31; R.S.1913, § 3697; C.S.1922, § 3085; C.S.1929, § 49-101; R.S.1943, § 49-101.Annotations1. Applicability of common law2. Conflict with statutory law3. Inconsistent with needs4. Miscellaneous1. Applicability of common lawThe 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 lawCommon-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 needsAdministrator 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. MiscellaneousIf a defendant is denied his right to appeal because of counsel's failure to timely file notice of appeal, the proper means to attach 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).