25-212. Actions not specified.

An action for relief not otherwise provided for in Chapter 25 can only be brought within four years after the cause of action shall have accrued.

Source

Annotations

1. Accrual of cause of action

2. Specific actions included

3. Miscellaneous

1. Accrual of cause of action

Generally, a suit to declare a contract void, which if void was void at its inception, must be commenced within four years of the execution of the contract. Lake v. Piper, Jaffray & Hopwood Inc., 219 Neb. 731, 365 N.W.2d 838 (1985).

The point at which a statute of limitations commences to run must be determined from the facts of each case; a cause of action accrues, and the statute of limitations begins to run, when the aggrieved party has the right to institute and maintain suit, even though such plaintiff may be ignorant of the existence of the cause of action. Mangan v. Landen, 219 Neb. 643, 365 N.W.2d 453 (1985).

Where there is a continuous running account, statute of limitations commences to run from date of last item. Lewis v. Hiskey, 166 Neb. 402, 89 N.W.2d 132 (1958).

Where demand for the repayment of money paid has been made, the statute of limitations as to when the taxpayer may sue begins to run at the expiration of the ninety-day period in which to make the refund. Loup River Public Power Dist. v. County of Platte, 144 Neb. 600, 14 N.W.2d 210 (1944).

Action to recover from county amount paid for void tax sale certificate accrues when tax sale certificate has been declared void by court of competent jurisdiction, and action must be brought within four years thereafter. McDonald v. County of Lincoln, 141 Neb. 741, 4 N.W.2d 903 (1942).

Mandamus to compel performance of continuing duty by public officer is not barred by this section, even though performance of duty may have been compelled more than four years prior to bringing of a suit. State ex rel. Cashman v. Carmean, 138 Neb. 819, 295 N.W. 801 (1941).

Action on official bond of county judge accrues on expiration of his term, when he fails to pay to his successor money in his possession due to an heir or other person. Ericsson v. Streitz, 132 Neb. 692, 273 N.W. 17 (1937).

Limitations in action for alienation of affections begin to run when affections are alienated and husband abandons wife. Von Dorn v. Rubin, 104 Neb. 465, 177 N.W. 653 (1920).

Husband's action for alienation of affection accrues when wife leaves home and severs relationship, and the limitations period is not extended by the fact that the husband does not give up on the possibility of renewal of relationship until later, and thus suffers continuing damages. Mattice v. Messer, 493 F.2d 498 (8th Cir. 1974).

2. Specific actions included

Nonconsent of irrigation company to transfer of water right was barred by statute. Vonburg v. Farmers Irrigation District, 132 Neb. 12, 270 N.W. 835 (1937).

In civil action to recover fees withheld by clerk of district court, statute of limitations is four years. Thurston County v. Farley, 128 Neb. 756, 260 N.W. 397 (1935).

Action for damages for alienation of affections was not barred by statute of limitations. Baltzly v. Gruenig, 127 Neb. 520, 256 N.W. 4 (1934).

Section is applicable to civil actions only. Mercer v. City of Omaha, 76 Neb. 289, 107 N.W. 565 (1906).

Action to obtain a new trial in which a judgment was rendered on the ground of unavoidable casualty and misfortune may be brought within four years. Ritchey v. Seeley, 73 Neb. 164, 102 N.W. 256 (1905).

State demands are not barred. Streitz v. Hartman, 35 Neb. 406, 53 N.W. 215 (1892).

A proceeding by mandamus is barred by the statute of limitations at the expiration of four years from the time the right to the writ accrued. State ex rel. Gage County v. King, 34 Neb. 196, 51 N.W. 754 (1892); State ex rel. Chem. Nat. Bank v. School District No. 9 of Sherman County, 30 Neb. 520, 46 N.W. 613 (1890).

Suit against employer to enforce contract made in 1893 to deliver corporate stock was barred by this and other statutes of limitations, in view of lapse of time, etc. Reed v. Fairmont Creamery Co., 37 F.2d 332 (8th Cir. 1929).

3. Miscellaneous

The defense of the statute of limitations may not be raised by a judgment creditor against a mortgagee. Gurske v. Strate, 165 Neb. 882, 87 N.W.2d 703 (1958).

Court will not require payment of damages barred by statute of limitations, under maxim that he who comes into equity must do equity. Dawson County Irrigation Co. v. Stuart, 142 Neb. 428, 6 N.W.2d 602 (1942).

Actions for relief based on accident and mistake are analogous to actions based on fraud, and are covered by section 25-207. Sweley v. Fox, 135 Neb. 780, 284 N.W. 318 (1939).

Where amended petition introduces new causes of action which are barred by statute of limitations, such new allegations cannot be the basis of a recovery, but this rule does not apply to allegations contained in the original petition which are repeated in the amended petition. Streight v. First Trust Co. of Omaha, 133 Neb. 340, 275 N.W. 278 (1937).

Amendment of petition to change legal theory of action, introducing new cause of action long since barred by statute of limitations, is not allowable. Hensley v. Chicago, St. P., M. & O. R. Co., 126 Neb. 579, 254 N.W. 426 (1934).

Intent of Legislature was to cover every form of action not otherwise provided for. Beall v. McMenemy, 63 Neb. 70, 88 N.W. 134 (1901).

Under former law, section 43-666, R.R.S.1943, is not sufficiently analogous to 20 U.S.C. section 1415 for its statute of limitation to apply to actions under that federal statute. However, the statute of limitations under either section 25-212 or 25-219, R.R.S.1943, appears to be more appropriate. Monahan v. State of Neb., 491 F.Supp. 1074 (D. Neb. 1980).