25-101. Civil action.

The distinctions between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and in their place there shall be hereafter but one form of action, which shall be called a civil action.

Source:R.S.1867, Code § 2, p. 394; Laws 1867, § 1, p. 71; R.S.1913, § 7560; C.S.1922, § 8503; C.S.1929, § 20-101; R.S.1943, § 25-101.


Annotations

25-102. Parties; how designated.

In all civil actions, the complaining party shall be known as the plaintiff and the adverse party as the defendant.

Source:R.S.1867, Code § 3, p. 394; R.S.1913, § 7561; C.S.1922, § 8504; C.S.1929, § 20-102; R.S.1943, § 25-102.


Annotations

25-103. Feigned issues prohibited; issue not plead; tried, when.

There can be no feigned issues; but a question of fact not put in issue by the pleadings may be tried by a jury, upon an order for the trial, stating distinctly and plainly the question of fact to be tried, and such order is the only authority necessary for a trial.

Source:R.S.1867, Code § 4, p. 394; R.S.1913, § 7562; C.S.1922, § 8505; C.S.1929, § 20-103; R.S.1943, § 25-103.


Annotations

25-201. Civil actions; when commenced.

A civil action shall be commenced only within the time prescribed in this chapter, after the cause of action has accrued. Notwithstanding any other provision in this chapter, when an action has been stayed by any court of competent jurisdiction or by statute, such action shall be commenced within the longer of (1) the time prescribed in this chapter, after the cause of action has accrued, or (2) one year after the date the stay is no longer in effect.

Source:R.S.1867, Code § 5, p. 395; R.S.1913, § 7563; C.S.1922, § 8506; C.S.1929, § 20-201; R.S.1943, § 25-201; Laws 2001, LB 48, § 1.    


Annotations

25-201.01. Civil actions; savings clause; conditions.

(1) If an action is commenced within the time prescribed by the applicable statute of limitations but the plaintiff fails in the action for a reason other than a reason specified in subsection (2) of this section and the applicable statute of limitations would prevent the plaintiff from commencing a new action, the plaintiff, or his or her representatives if the plaintiff has died and the cause of action survived, may commence a new action within the period specified in subsection (3) of this section.

(2) A new action may not be commenced in accordance with subsection (1) of this section when the original action failed (a) on the merits of the action, (b) as a result of voluntary dismissal by the plaintiff for a reason other than loss of diversity jurisdiction in a federal court, (c) as a result of the plaintiff's failure to serve a defendant within the time prescribed in section 25-217, or (d) as a result of any other inaction on the part of the plaintiff where the burden of initiating an action was on the plaintiff.

(3) A new action may be commenced in accordance with subsection (1) of this section within a period equal to the lesser of (a) six months after the failure of the action or (b) a period after the failure of the action equal to the period of the applicable statute of limitations of the original action.

Source:Laws 2000, LB 55, § 1.    


Annotations

25-201.02. Amendment of pleading; effect.

(1) An amendment of a pleading that does not change the party or the name of the party against whom the claim is asserted relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.

(2) If the amendment changes the party or the name of the party against whom a claim is asserted, the amendment relates back to the date of the original pleading if (a) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, and (b) within the period provided for commencing an action the party against whom the claim is asserted by the amended pleading (i) received notice of the action such that the party will not be prejudiced in maintaining a defense on the merits and (ii) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Source:Laws 2002, LB 876, § 2.    


Annotations

25-202. Actions for the recovery of title or possession of real estate or foreclosure of mortgages or deeds of trust as mortgages.

(1) An action for the recovery of the title or possession of lands, tenements, or hereditaments, or for the foreclosure of mortgages or the foreclosure of deeds of trust as mortgages thereon, can only be brought within ten years after the cause of action accrues. No limitation shall apply to the time within which any county, city, town, village, other municipal corporation, public power and irrigation district, public power district, public irrigation district organized under Chapter 70, article 6, irrigation district organized under Chapter 46, article 1, or natural resources district may begin an action for the recovery of the title or possession of any public road, street, or alley, other public or political subdivision grounds or lands, or city or town lots.

(2) For the purposes of this section as relates only to the rights and interests of subsequent purchasers and encumbrancers for value:

(a) The cause of action for foreclosure of the mortgage or foreclosure of the deed of trust as a mortgage accrues on the last date of maturity of the debt or other obligation secured by the mortgage or deed of trust as the date is stated in or is ascertainable from the filed record of the mortgage or deed of trust or the filed record of an extension of the mortgage or deed of trust;

(b) If no date of maturity is stated or is ascertainable from the filed mortgage or deed of trust or the filed extension, the cause of action for foreclosure of the mortgage or foreclosure of the deed of trust as a mortgage accrues no later than thirty years after the date of the mortgage or deed of trust; or

(c) If the mortgage creditor files an affidavit to the effect that the mortgage or deed of trust is unpaid and is still a valid lien, the affidavit is filed before the cause of action is barred under this section, and the affidavit is filed for record in the office of the register of deeds, the cause of action is not barred until ten years after the date the affidavit is filed. The period of ten years shall not be extended by nonresidence, legal disability, partial payment, acknowledgment of debt, or promise to pay.

Source:R.S.1867, Code § 6, p. 395; Laws 1869, § 1, p. 67; Laws 1899, c. 79, § 6, p. 335; R.S.1913, § 7564; C.S.1922, § 8507; Laws 1925, c. 64, § 1, p. 220; C.S.1929, § 20-202; Laws 1941, c. 35, § 1, p. 145; C.S.Supp.,1941, § 20-202; R.S.1943, § 25-202; Laws 1977, LB 208, § 1; Laws 1995, LB 297, § 1; Laws 2008, LB851, § 18.    


Cross References

Annotations

25-203. Actions for forcible entry and detainer of real property.

An action for the forcible entry and detainer, or forcible detainer only, of real property, can only be brought within one year after the cause of such action shall have accrued.

Source:R.S.1867, Code § 8, p. 395; R.S.1913, § 7565; C.S.1922, § 8508; C.S.1929, § 20-203; R.S.1943, § 25-203.


Annotations

25-204. Actions other than for the recovery of real property.

Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued.

Source:R.S.1867, Code § 9, p. 395; R.S.1913, § 7566; C.S.1922, § 8509; C.S.1929, § 20-204; R.S.1943, § 25-204.


Annotations

25-205. Actions on written contracts, on foreign judgments, or to recover collateral.

(1) Except as provided in subsection (2) of this section, an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment, can only be brought within five years. No action at law or equity may be brought or maintained attacking the validity or enforceability of or to rescind or declare void and uncollectible any written contract entered into pursuant to, in compliance with, or in reliance on, a statute of the State of Nebraska which has been or hereafter is held to be unconstitutional by the Supreme Court of Nebraska where such holding is the basis for such action, unless such action be brought or maintained within one year from the effective date of such decision. The provisions hereof shall not operate to extend the time in which to bring any action or to revive any action now barred by reason of the operation of any previously existing limitation provision.

(2) An action to recover collateral (a) the possession and ownership of which a debtor has in any manner transferred to another person and (b) which was used as security for payment pursuant to an agreement, contract, or promise in writing which covers farm products as described in section 9-102, Uniform Commercial Code, or farm products which become inventory of a person engaged in farming, shall be brought within eighteen months from the date possession and ownership of such collateral was transferred.

Source:R.S.1867, Code § 10, p. 395; R.S.1913, § 7567; C.S.1922, § 8510; C.S.1929, § 20-205; R.S.1943, § 25-205; Laws 1963, Spec. Sess., c. 2, § 1, p. 61; Laws 1983, LB 343, § 9; Laws 1999, LB 550, § 3.    


Annotations

25-206. Actions on oral contracts or statutory liabilities.

An action upon a contract, not in writing, expressed or implied, or an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within four years.

Source:R.S.1867, Code § 11, p. 395; R.S.1913, § 7568; C.S.1922, § 8511; C.S.1929, § 20-206; R.S.1943, § 25-206.


Annotations

25-207. Actions for trespass, conversion, other torts, and frauds; exceptions.

The following actions can only be brought within four years: (1) An action for trespass upon real property; (2) an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; (3) an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated; and (4) an action for relief on the ground of fraud, but the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud, except as provided in sections 30-2206 and 76-288 to 76-298.

Source:R.S.1867, Code § 12, p. 395; R.S.1913, § 7569; C.S.1922, § 8512; C.S.1929, § 20-207; R.S.1943, § 25-207; Laws 1947, c. 243, § 11, p. 766; Laws 1975, LB 481, § 9.


Annotations

25-208. Actions for libel, slander, malpractice, and recovery of tax.

The following actions can only be brought within the periods stated in this section: Within one year, an action for libel or slander; and within two years, an action for malpractice which is not otherwise specifically limited by statute.

In the absence of any other shorter applicable statute of limitations, any action for the recovery of any excise or other tax which has been collected under any statute of the State of Nebraska and which has been finally adjudged to be unconstitutional shall be brought within one year after the final decision of the court declaring it to be unconstitutional. This section shall not apply to any action for the recovery of a property tax.

The changes made to this section by Laws 2000, LB 921, shall apply to causes of action accruing on and after July 13, 2000.

Source:R.S.1867, Code § 13, p. 395; R.S.1913, § 7570; C.S.1922, § 8513; C.S.1929, § 20-208; Laws 1933, c. 42, § 1, p. 248; Laws 1937, c. 43, § 1, p. 187; C.S.Supp.,1941, § 20-208; R.S.1943, § 25-208; Laws 1972, LB 1132, § 2; Laws 1991, LB 829, § 2; Laws 2000, LB 921, § 2.    


Annotations

25-209. Actions on official or judicial bonds.

An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any other officer, or upon the bond or undertaking given in attachment, injunction, or in any case whatever required by statute can only be brought within ten years.

Source:R.S.1867, Code § 14, p. 396; R.S.1913, § 7571; C.S.1922, § 8514; C.S.1929, § 20-209; R.S.1943, § 25-209.


Annotations

25-210. Actions against sureties on guardian's bond.

No action shall be maintained against the sureties in any bond given by a guardian unless it be commenced within four years from the time when the guardian shall have been discharged; Provided, if at the time of such discharge the person entitled to bring such action shall be out of the state, or under any legal disability to sue, the action may be commenced at any time within five years after the return of such person to the state, or after such disability shall be removed.

Source:R.S.1867, Code § 32, p. 185; R.S.1913, § 7572; C.S.1922, § 8515; C.S.1929, § 20-210; R.S.1943, § 25-210.


Annotations

25-211. Actions on contracts by reason of failure or want of consideration.

Actions brought for damages growing out of the failure or want of consideration of contracts, express or implied, or for the recovery of money paid upon contracts, express or implied, the consideration of which has wholly or in part failed, shall be brought within four years.

Source:R.S.1867, Code § 15, p. 396; R.S.1913, § 7573; C.S.1922, § 8516; C.S.1929, § 20-211; R.S.1943, § 25-211.


Annotations

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:R.S.1867, Code § 16, p. 396; R.S.1913, § 7574; C.S.1922, § 8517; C.S.1929, § 20-212; R.S.1943, § 25-212; Laws 2011, LB9, § 1.    


Annotations

25-213. Tolling of statutes of limitation; when.

Except as provided in sections 76-288 to 76-298, if a person entitled to bring any action mentioned in Chapter 25, the Political Subdivisions Tort Claims Act, the Nebraska Hospital-Medical Liability Act, the State Contract Claims Act, the State Tort Claims Act, or the State Miscellaneous Claims Act, except for a penalty or forfeiture, for the recovery of the title or possession of lands, tenements, or hereditaments, or for the foreclosure of mortgages thereon, is, at the time the cause of action accrued, within the age of twenty years, a person with a mental disorder, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by Chapter 25 after such disability is removed. For the recovery of the title or possession of lands, tenements, or hereditaments or for the foreclosure of mortgages thereon, every such person shall be entitled to bring such action within twenty years from the accrual thereof but in no case longer than ten years after the termination of such disability. Absence from the state, death, or other disability shall not operate to extend the period within which actions in rem are to be commenced by and against a nonresident or his or her representative.

Source:R.S.1867, Code § 17, p. 396; R.S.1913, § 7576; C.S.1922, § 8519; Laws 1925, c. 64, § 2, p. 221; C.S.1929, § 20-213; R.S.1943, § 25-213; Laws 1947, c. 243, § 12, p. 766; Laws 1972, LB 1049, § 1; Laws 1974, LB 949, § 2; Laws 1984, LB 692, § 2; Laws 1986, LB 1177, § 5; Laws 1988, LB 864, § 5; Laws 2007, LB339, § 1.    


Cross References

Annotations

25-214. Actions against absconding or absent debtor.

If a cause of action accrues against a person while he or she is out of the state or has absconded or concealed himself or herself, the period limited for the commencement of the action shall not begin to run (1) until he or she comes into the state or (2) while he or she is absconded or concealed. If the person departs from the state or absconds or conceals himself or herself after the cause of action accrues, the time of his or her absence or concealment shall not be computed as any part of the period within which the action must be brought.

Source:R.S.1867, Code § 20, p. 396; R.S.1913, § 7577; C.S.1922, § 8520; C.S.1929, § 20-214; R.S.1943, § 25-214; Laws 2006, LB 1115, § 8.    


Annotations

25-215. Repealed. Laws 2006, LB 1115, § 47.

25-216. Part payment; acknowledgment of debt; effect upon accrual.

In any cause founded on contract, when any part of the principal or interest shall have been voluntarily paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made in writing, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; Provided, that the provisions of this section shall not be applicable to real estate mortgages which have become barred under the provisions of section 25-202 as against subsequent encumbrancers and purchasers for value.

Source:R.S.1867, Code § 22, p. 397; R.S.1913, § 7579; C.S.1922, § 8522; C.S.1929, § 20-216; Laws 1941, c. 35, § 2, p. 146; C.S.Supp.,1941, § 20-216; R.S.1943, § 25-216.


Annotations

25-217. Action; commencement; defendant not served; effect.

An action is commenced on the date the complaint is filed with the court. The action shall stand dismissed without prejudice as to any defendant not served within six months from the date the complaint was filed.

Source:R.S.1867, Code § 19, p. 396; R.S.1913, § 7580; C.S.1922, § 8523; C.S.1929, § 20-217; R.S.1943, § 25-217; Laws 1979, LB 510, § 1; Laws 1986, LB 529, § 21; Laws 2002, LB 876, § 5.    


Cross References

Annotations

25-218. Claims by and against the state; when barred.

Every claim and demand against the state shall be forever barred unless action is brought thereon within two years after the claim arose. Every claim and demand on behalf of the state, except for revenue, or upon official bonds, or for loans or money belonging to the school funds, or loans of school or other trust funds, or to lands or interest in lands thereto belonging, shall be barred by the same lapse of time as is provided by the law in case of like demands between private parties. This section shall not apply to any claim or demand against the state regarding property taxes.

Source:Laws 1877, § 16, p. 24; Laws 1881, c. 32, § 1, p. 211; R.S.1913, § 7581; C.S.1922, § 8524; C.S.1929, § 20-218; R.S.1943, § 25-218; Laws 1991, LB 829, § 3.


Annotations

25-219. Actions upon liability created by federal statute.

All actions upon a liability created by a federal statute, other than a forfeiture or penalty, for which actions no period of limitations is provided in such statute shall be commenced within three years next after the cause of action shall have accrued.

Source:Laws 1943, c. 49, § 1, p. 200; R.S.1943, § 25-219.


Annotations

25-220. Repealed. Laws 1959, c. 264, § 1.

25-221. Statute of limitations; trial procedure.

In any action in which it is claimed by one or more of the defendants that the action is barred by the statute of limitations any party may move that the issue raised by the statute of limitations be tried separately and determined before any other issues in the case. Issues of fact raised by the statute of limitations shall be tried before a jury unless trial by jury is waived by all parties. Issues of law raised by the statute of limitations shall be determined by the court without a jury. If the issue raised by the statute of limitations is determined by the jury or the court in favor of the plaintiff the remaining issues shall then be tried. If the issue raised by the statute of limitations is determined by the jury or the court in favor of the defendant the action or actions barred by the statute of limitations shall be dismissed.

Source:Laws 1971, LB 430, § 1; Laws 1997, LB 165, § 1.


Annotations

25-222. Actions on professional negligence.

Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and provided further, that in no event may any action be commenced to recover damages for professional negligence or breach of warranty in rendering or failure to render professional services more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action.

Source:Laws 1972, LB 1132, § 1.


Annotations

25-223. Action on breach of warranty on improvements to real property.

Any action to recover damages based on any alleged breach of warranty on improvements to real property or based on any alleged deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property shall be commenced within four years after any alleged act or omission constituting such breach of warranty or deficiency. If such cause of action is not discovered and could not be reasonably discovered within such four-year period, or within one year preceding the expiration of such four-year period, then the cause of action may be commenced within two years from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no event may any action be commenced to recover damages for an alleged breach of warranty on improvements to real property or deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property more than ten years beyond the time of the act giving rise to the cause of action.

Source:Laws 1976, LB 495, § 1.


Annotations

25-224. Actions on product liability.

(1) All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.

(2)(a) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed by section 2-725, Uniform Commercial Code or by subsection (5) of this section, shall be commenced as follows:

(i) For products manufactured in Nebraska, within ten years after the date the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption; or

(ii) For products manufactured outside Nebraska, within the time allowed by the applicable statute of repose, if any, of the state or country where the product was manufactured, but in no event less than ten years. If the state or country where the product was manufactured does not have an applicable statute of repose, then the only limitation upon the commencement of an action for product liability shall be as set forth in subsection (1) of this section.

(b) If the changes made to this subsection by Laws 2001, LB 489, are declared invalid or unconstitutional, this subsection as it existed prior to September 1, 2001, shall be deemed in full force and effect and shall apply to all claims in which a final order has not been entered.

(3) The limitations contained in subsection (1), (2), or (5) of this section shall not be applicable to indemnity or contribution actions brought by a manufacturer or seller of a product against a person who is or may be liable to such manufacturer or seller for all or any portion of any judgment rendered against a manufacturer or seller.

(4) Notwithstanding the provisions of subsections (1) and (2) of this section, any cause of action or claim which any person may have on July 22, 1978, may be brought not later than two years following such date.

(5) Any action to recover damages based on injury allegedly resulting from exposure to asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite, actinolite, or any combination thereof, shall be commenced within four years after the injured person has been informed of discovery of the injury by competent medical authority and that such injury was caused by exposure to asbestos as described herein, or within four years after the discovery of facts which would reasonably lead to such discovery, whichever is earlier. No action commenced under this subsection based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless such seller is also the manufacturer of such product or the manufacturer of the part thereof claimed to be defective. Nothing in this subsection shall be construed to permit an action to be brought based on an injury described in this subsection discovered more than two years prior to August 30, 1981.

Source:Laws 1978, LB 665, § 2; Laws 1981, LB 29, § 1; Laws 2001, LB 489, § 1.    


Annotations

25-225. Repealed. Laws 1986, LB 529, § 58.

25-226. Cause of action against a common carrier; limitation.

A cause of action for a freight damage claim, a rate overcharge, a claim for damages resulting from a delay in transportation, or a claim for a lost shipment against a common carrier shall be barred unless it is filed with a court having jurisdiction of the amount in dispute within two years after the date such action accrues. A cause of action for a rate overcharge accrues on the date the overcharge is paid. A cause of action for a freight damage claim, damages resulting from a delay in transportation, or a shortage in a shipment accrues on the date of delivery or tender of delivery of the freight by the common carrier. A cause of action for a lost shipment accrues on the date the lost shipment was delivered to the common carrier.

Source:Laws 1967, c. 479, § 20, p. 1485; R.S.1943, (1990), § 75-802; Laws 1991, LB 14, § 1.


25-227. Action to enforce obligation to pay certificate of deposit; when.

(1) For purposes of this section:

(a) Account agreement means one or more written instruments that establish when a certificate of deposit is payable;

(b) Certificate of deposit means a deposit or share account at a depository institution that:

(i) Is payable by the depository institution at the expiration of a specified time; and

(ii) May be transferable or nontransferable, negotiable or nonnegotiable, and renewable or nonrenewable;

(c) Depository institution means a state-chartered or federally chartered financial institution located in this state that is authorized to maintain certificates of deposit; and

(d) Maturity date means the time specified in an account agreement when a certificate of deposit is first payable, without taking into account any agreement regarding renewals.

(2) Subject to subsection (3) of this section, an action to enforce the obligation of a depository institution to pay all or part of the balance of a certificate of deposit shall be commenced by the earlier of:

(a) The time that an action to enforce an obligation under subsection (e) of section 3-118, Uniform Commercial Code, must be commenced if the certificate of deposit is subject to such section; or

(b) Seven years after the later of:

(i) The maturity date of the certificate of deposit;

(ii) The due date of the certificate of deposit indicated in the depository institution's last written notice of renewal of the certificate of deposit, if any;

(iii) The date of the last written communication from the depository institution recognizing the depository institution's obligation with respect to the certificate of deposit; or

(iv) The last day of the taxable year for which a person identified in the certificate of deposit last reported interest income earned on the certificate of deposit on a federal or state income tax return.

(3) Notwithstanding subsection (2) of this section, an action to enforce the obligation of a depository institution to pay all or part of the balance of an automatically renewing certificate of deposit in existence on July 1, 2008, shall be commenced by the later of:

(a) Seven years after the later of:

(i) The maturity date of the certificate of deposit;

(ii) The due date of the certificate of deposit indicated in the depository institution's last written notice of renewal of the certificate of deposit, if any;

(iii) The date of the last written communication from the depository institution recognizing the depository institution's obligation to pay the certificate of deposit; or

(iv) The last day of the taxable year for which a person identified in the certificate of deposit last reported interest income earned on the certificate of deposit on a federal or state income tax return; or

(b) One year after July 1, 2008.

(4) This section applies to all certificates of deposit that are in existence on or after July 1, 2008.

Source:Laws 2008, LB151, § 1.    


Annotations

25-228. Action by victim of sexual assault of a child; when.

Notwithstanding any other provision of law, actions for an injury or injuries suffered by a plaintiff when the plaintiff was a victim of a violation of section 28-319.01 or 28-320.01 can only be brought within twelve years after the plaintiff's twenty-first birthday. Criminal prosecution of a defendant under section 28-319.01 or 28-320.01 is not required to maintain a civil action for violation of such sections.

Source:Laws 2012, LB612, § 1.    


25-301. Real party in interest.

Every action shall be prosecuted in the name of the real party in interest except as otherwise provided in section 25-304. An action shall not be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for joinder or substitution of the real party in interest. Joinder or substitution of the real party in interest shall have the same effect as if the action had been commenced by the real party in interest.

Source:R.S.1867, Code § 29, p. 398; R.S.1913, § 7582; C.S.1922, § 8525; C.S.1929, § 20-301; R.S.1943, § 25-301; Laws 1999, LB 48, § 1.    


Annotations

25-302. Assignee of a thing in action.

The assignee of a thing in action may maintain an action thereon in the assignee's own name and behalf, without the name of the assignor.

Source:R.S.1867, Code § 30, p. 398; R.S.1913, § 7583; C.S.1922, § 8526; C.S.1929, § 20-302; R.S.1943, § 25-302; Laws 2006, LB 1115, § 9.    


Annotations

25-303. Assignee; defenses and counterclaims available.

An action by the assignee of a thing in action shall be without prejudice to any counterclaim or defense existing between the original parties; but this section shall not apply to negotiable bonds, promissory notes, or bills of exchange, transferred in good faith, and upon good consideration before due.

Source:R.S.1867, Code § 31, p. 398; R.S.1913, § 7584; C.S.1922, § 8527; C.S.1929, § 20-303; R.S.1943, § 25-303.


Annotations

25-304. Parties to actions.

An executor, administrator, guardian, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law and official bonds may be sued upon the same way. Assignees of choses in action assigned for the purpose of collection may sue on any claim assigned in writing.

Source:R.S.1867, Code § 32, p. 398; Laws 1913, c. 166, § 1, p. 509; R.S.1913, § 7585; C.S.1922, § 8528; C.S.1929, § 20-304; R.S.1943, § 25-304; Laws 2003, LB 19, § 1.    


Annotations

25-305. Married woman.

A woman may while married sue and be sued in the same manner as if she were unmarried.

Source:Laws 1871, § 3, p. 68; R.S.1913, § 7586; C.S.1922, § 8529; C.S.1929, § 20-305; R.S.1943, § 25-305.


Annotations

25-306. Wife's right to defend.

If a husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also.

Source:R.S.1867, Code § 35, p. 398; R.S.1913, § 7587; C.S.1922, § 8530; C.S.1929, § 20-306; R.S.1943, § 25-306.


25-307. Suit by infant, guardian, or next friend; exception; substitution by court.

Except as provided by the Nebraska Probate Code, the action of an infant shall be commenced, maintained, and prosecuted by his or her guardian or next friend. Such actions may be dismissed with or without prejudice by the guardian or next friend only with approval of the court. When the action is commenced by his or her next friend, the court has power to dismiss it, if it is not for the benefit of the infant, or to substitute the guardian of the infant, or any person, as the next friend. Any action taken pursuant to this section shall be binding upon the infant.

Source:R.S.1867, Code § 36, p. 398; R.S.1913, § 7588; C.S.1922, § 8531; C.S.1929, § 20-307; R.S.1943, § 25-307; Laws 1975, LB 480, § 1; Laws 1975, LB 481, § 10; Laws 2006, LB 1115, § 10.    


Cross References

Annotations

25-308. Action by guardian, conservator, or next friend; liability for costs; security; witness.

The guardian, conservator, or next friend is liable for the costs of the action brought by the guardian, conservator, or next friend, and when he or she is insolvent, the court may require security for the costs of the action. The guardian, conservator, or next friend may be a witness in an action brought by the guardian, conservator, or next friend.

Source:R.S.1867, Code § 37, p. 399; R.S.1913, § 7589; C.S.1922, § 8532; C.S.1929, § 20-308; R.S.1943, § 25-308; Laws 1975, LB 481, § 11; Laws 2006, LB 1115, § 11.    


Annotations

25-309. Suit against infant; guardian for suit; when appointed; exception.

Except as provided by the Nebraska Probate Code, the defense of an infant must be by a guardian for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a county judge. The appointment cannot be made until after service of the summons in the action as directed by this code.

Source:R.S.1867, Code § 38, p. 399; R.S.1913, § 7590; C.S.1922, § 8533; C.S.1929, § 20-309; R.S.1943, § 25-309; Laws 1975, LB 481, § 12.


Cross References

Annotations

25-310. Suit against infant; guardian; how appointed.

The appointment may be made upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the return of the summons. If he be under the age of fourteen or neglect so to apply, the appointment may be made upon the application of any friend of the infant, or on that of plaintiff in the action.

Source:R.S.1867, Code § 39, p. 399; R.S.1913, § 7591; C.S.1922, § 8534; C.S.1929, § 20-310; R.S.1943, § 25-310.


Annotations

25-311. Joinder of plaintiffs.

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.

Source:R.S.1867, Code § 40, p. 399; R.S.1913, § 7592; C.S.1922, § 8535; C.S.1929, § 20-311; R.S.1943, § 25-311; Laws 1998, LB 234, § 1.


Annotations

25-312. Defendants; how designated; misnomer; when immaterial.

(1) In all actions upon bills of exchange or promissory notes, or other written instruments, and in all actions described in subsection (2) of this section, it is sufficient to designate any defendant by the name or part of name by which he or she is designated in the instrument upon which action is brought, or by which he or she appears of record to have some interest, right, title, estate in or lien upon the property involved in such action or proceeding, and for all the purposes of such action or proceeding such name shall be considered the real name of such defendant.

(2) This section applies to (a) actions brought under section 25-401, 25-402, or 25-403 and (b) actions which relate to, or the subject of which is, real or personal property in this state, if the defendant has or claims a lien or interest, actual or contingent, in such property, or the relief demanded consists wholly or partially in excluding the defendant from any interest in such property, and such defendant is a nonresident of the state or is a foreign corporation.

Source:R.S.1867, Code § 23, p. 397; R.S.1913, § 7593; Laws 1921, c. 220, § 34, p. 795; C.S.1922, § 8536; C.S.1929, § 20-312; R.S.1943, § 25-312; Laws 1997, LB 1, § 1.


Annotations

25-312.01. Dissolved corporation; suit authorized.

Any dissolved corporation may be sued by its corporate name upon any cause of action accrued against such corporation or which but for such dissolution would have accrued, with the same effect as if it had not been dissolved.

Source:Laws 1983, LB 447, § 15.


25-313. Company, partnership, or unincorporated association; designation.

Any company or association of persons formed for the purpose of (1) carrying on any trade or business, (2) holding any species of property in this state, or (3) representing employees in collective bargaining with employers, and not incorporated, may sue and be sued by such usual name as such company, partnership or association may have assumed to itself or be known by. It shall not be necessary in such case to set forth in the process or pleadings or to prove at the trial the names of the persons composing such company.

Source:R.S.1867, Code § 24, p. 397; R.S.1913, § 7594; C.S.1922, § 8537; C.S.1929, § 20-313; R.S.1943, § 25-313; Laws 1947, c. 82, § 1, p. 256.


Annotations

25-314. Transferred to section 25-530.08.

25-314.01. Repealed. Laws 1983, LB 447, § 104.

25-315. Partnership or unincorporated association; security for costs.

In cases where a company shall sue in its partnership name, such company shall procure the writ to be endorsed by a responsible surety, who is a resident of the county, for costs, or otherwise give security for costs.

Source:R.S.1867, Code § 26, p. 397; R.S.1913, § 7596; C.S.1922, § 8539; C.S.1929, § 20-315; R.S.1943, § 25-315.


Annotations

25-316. Company, partnership, or unincorporated association; member's individual property; how subjected to satisfaction of judgment.

If the plaintiff, in any judgment so rendered against any company or partnership, seeks to charge the individual property of the persons composing such company or firm, it shall be lawful for the plaintiff to file a bill in equity against the several members thereof, setting forth his or her judgment and the insufficiency of the partnership property to satisfy the same, and to have a decree for the debt and an award of execution against all such persons or any of them as may appear to have been members of such company, association, or firm.

Source:R.S.1867, Code § 27, p. 397; R.S.1913, § 7597; C.S.1922, § 8540; C.S.1929, § 20-316; R.S.1943, § 25-316; Laws 2006, LB 1115, § 12.    


Annotations

25-317. Repealed. Laws 1998, LB 234, § 12.

25-318. Necessary joinder; involuntary joinder; procedure.

Of the parties to the action, those who are united in interest shall be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he or she may be made a defendant, the reason being stated in the complaint.

Source:R.S.1867, Code § 42, p. 399; R.S.1913, § 7599; C.S.1922, § 8542; C.S.1929, § 20-318; R.S.1943, § 25-318; Laws 2002, LB 876, § 6.    


Annotations

25-319. Class actions; representation.

When the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.

Source:R.S.1867, Code § 43, p. 399; R.S.1913, § 7600; C.S.1922, § 8543; C.S.1929, § 20-319; R.S.1943, § 25-319.


Annotations

25-319.01. Class action litigation; unpaid residue; payment by defendant.

(1) It is the intent of the Legislature to ensure that the unpaid residuals in class action litigation are distributed, to the extent possible, in a manner designed to promote justice for all citizens of this state. The Legislature finds that the use of funds collected by state courts pursuant to this section for these purposes is in the public interest, is a proper use of the funds, and is consistent with essential public and governmental purposes.

(2) Prior to the entry of any judgment or order approving settlement in a class action described in section 25-319, the court shall determine the total amount that will be payable to all class members if all class members are paid the amount to which they are entitled pursuant to the judgment or settlement. The court shall also set a date when the parties shall report to the court the total amount that was actually paid to the class members. After the report is received, the court, unless it orders otherwise to further the purposes of the underlying cause of action, shall direct the defendant to pay the sum of the unpaid residue to the Legal Aid and Services Fund.

Source:Laws 2014, LB1089, § 1.    


25-320. Permissive joinder of defendants.

All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.

Source:R.S.1867, Code § 44, p. 399; R.S.1913, § 7601; C.S.1922, § 8544; C.S.1929, § 20-320; R.S.1943, § 25-320; Laws 1998, LB 234, § 2.


Annotations

25-321. Unknown defendants; how designated.

When the plaintiff is ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name, or any name and description, followed by the words, "real name unknown". In any such case the person intended shall thereupon be regarded as a defendant in such action or proceeding and as sufficiently identified therein for all purposes, including service of summons or constructive service when authorized and as prescribed in Chapter 25. In any action wherein it is alleged in the complaint or other pleading that there are persons who have or that there are persons who claim or appear to have some interest in, right or title to, or lien upon any real or personal property within this state involved in such action, and that the ownership of, interest in, rights or title to, or lien upon such property of such persons, does not appear of record, in or by their respective names, in the county wherein such property is situated, and that the plaintiff or person in whose behalf such allegations are made, after diligent investigation and inquiry, is unable to ascertain and does not know the names or whereabouts if in this state, or the residence of such persons, such action may proceed against all such persons designated as "all persons having or claiming any interest in" such property which shall be accurately and definitely described, followed by the words, "real names unknown".

Source:R.S.1867, Code § 148, p. 416; R.S.1913, § 7602; Laws 1915, c. 142, § 1, p. 310; Laws 1917, c. 138, § 1, p. 325; Laws 1921, c. 226, § 1, p. 815; C.S.1922, § 8545; C.S.1929, § 20-321; R.S.1943, § 25-321; Laws 1983, LB 447, § 17; Laws 2002, LB 876, § 7.    


Annotations

25-322. Substitution of parties; death; disability; transfer of interest.

An action does not abate by the death or other disability of a party, or by the transfer of any interest therein during its pendency, if the cause of action survives or continues. In the case of the death or other disability of a party, the court may allow the action to continue by or against his or her representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party or the court may allow the person to whom the transfer is made to be substituted in the action.

Source:R.S.1867, Code § 45, p. 399; R.S.1913, § 7603; C.S.1922, § 8546; C.S.1929, § 20-322; R.S.1943, § 25-322; Laws 2006, LB 1115, § 13.    


Annotations

25-323. Necessary parties; brought into suit; procedure.

The court may determine any controversy between parties before it when it can be done without prejudice to the rights of others or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.

Any person whose negligence was or may have been a proximate cause of an accident or occurrence alleged by the plaintiff, other than parties who have been released by the plaintiff and are not subject to suit pursuant to section 25-21,185.11, may be brought into the suit by any party in the manner provided in section 25-331 or 25-705.

Source:R.S.1867, Code § 46, p. 400; R.S.1913, § 7604; C.S.1922, § 8547; C.S.1929, § 20-323; R.S.1943, § 25-323; Laws 1995, LB 411, § 1; Laws 2002, LB 876, § 8.    


Annotations

25-324. Actions for recovery of real or personal property; interest in property; intervention.

When, in an action for the recovery of real or personal property, any person having an interest in the property applies to be made a party, the court may order it to be done.

Source:R.S.1867, Code § 47, p. 400; R.S.1913, § 7605; C.S.1922, § 8548; C.S.1929, § 20-324; R.S.1943, § 25-324.


Annotations

25-325. Interpleader by order of court upon affidavit of defendant.

Upon the affidavit of a defendant, before answer in an action upon contract or for the recovery of personal property, that some third party, without collusion with the defendant, has or makes a claim to the subject of the action, and that the defendant is ready to pay or dispose of the same as the court may direct, the court may make an order for the safekeeping, or for the payment, or deposit in court, or delivery of the subject of the action, to such person as it may direct, and an order requiring such third party to appear in a reasonable time and maintain or relinquish his or her claim against the defendant. If such third party, being served with a copy of the order by the sheriff or such other person as the court may direct, fails to appear, the court may declare such third party barred of all claim in respect to the subject of the action against the defendant therein. If such third party appears, he or she shall be allowed to make himself or herself the defendant in the action in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon compliance by the defendant with the order of the court for the payment, deposit, or delivery thereof.

Source:R.S.1867, Code § 48, p. 400; R.S.1913, § 7606; C.S.1922, § 8549; C.S.1929, § 20-325; R.S.1943, § 25-325; Laws 2006, LB 1115, § 14.    


Annotations

25-326. Interpleader; when sheriff or other officer defendant.

The provisions of section 25-325 shall be applicable to an action brought against a sheriff, or other officer, for the recovery of personal property taken by him or her under execution or for the proceeds of such property so taken and sold by him or her. The defendant in such action shall be entitled to the benefit of those provisions against the party in whose favor the execution issued, upon exhibiting to the court the process under which the defendant acted, with his or her affidavit that the property or its proceeds was taken under such process.

Source:R.S.1867, Code § 49, p. 400; R.S.1913, § 7607; C.S.1922, § 8550; C.S.1929, § 20-326; R.S.1943, § 25-326; Laws 2006, LB 1115, § 15.    


25-327. Substitution; plaintiff in execution for sheriff or other officer.

In an action against a sheriff or other officer for the recovery of property taken under an execution, and replevied by the plaintiff in such action, the court may, upon application of the defendant and of the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the costs being given.

Source:R.S.1867, Code § 50, p. 400; R.S.1913, § 7608; C.S.1922, § 8551; C.S.1929, § 20-327; R.S.1943, § 25-327.


Annotations

25-328. Intervention; right; procedure.

Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in any of the courts of the State of Nebraska, may become a party to an action between any other persons or corporations, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendants in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the action, and before the trial commences.

Source:Laws 1887, c. 100, § 2, p. 655; R.S.1913, § 7609; C.S.1922, § 8552; C.S.1929, § 20-328; R.S.1943, § 25-328; Laws 2002, LB 876, § 9.    


Annotations

25-329. Intervention; judgment; costs.

The court shall determine upon the intervention at the same time that the action is decided, and if the claim of the intervenor is not sustained, the intervenor shall pay all costs of the intervention.

Source:Laws 1887, c. 100, § 2, p. 655; R.S.1913, § 7610; C.S.1922, § 8553; C.S.1929, § 20-329; R.S.1943, § 25-329; Laws 2006, LB 1115, § 16.    


Annotations

25-330. Intervention; complaint; other pleadings.

The intervention shall be by complaint, which shall set forth the facts on which the intervention rests, and all the pleadings therein shall be governed by the same rules as other pleadings provided for in Chapter 25. If such complaint is filed during term, the court shall direct the time in which answers thereto shall be filed.

Source:Laws 1887, c. 100, § 4, p. 656; R.S.1913, § 7611; C.S.1922, § 8554; C.S.1929, § 20-330; R.S.1943, § 25-330; Laws 2002, LB 876, § 10.    


Annotations

25-331. Third-party action; procedure.

(1) At any time after commencement of the action, a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than ten days after filing the original answer. Otherwise the third-party plaintiff must obtain leave of the trial court on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall have all the rights of a defendant including the rights authorized by this section. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant shall have all the rights of a defendant including the rights authorized by this section. The court on its own motion, or motion of any party, may move to strike the third-party claim, or for its severance or separate trial if the third-party claim should delay trial, might tend to confuse a jury, or in any way jeopardize the rights of the plaintiff. A third-party defendant or subsequent defendants may proceed under this section.

(2) When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this section would entitle a defendant to do so.

Source:Laws 1967, c. 144, § 1, p. 441; Laws 2002, LB 876, § 11.    


Annotations

25-401. Local actions involving real estate.

All actions to recover damages for any trespass upon or any injury to real estate shall be brought only in the county where such real estate or some part thereof is situated, but such actions may be brought against corporations owning or operating any line of railroad in the state in any county where service of summons can be had, and all actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in section 25-402: (1) For the recovery of real property or of an estate or interest therein; (2) for the partition of real property; and (3) for the sale of real property under a mortgage lien or other encumbrance or charge.

Source:R.S.1867, Code § 51, p. 401; Laws 1889, c. 29, § 1, p. 376; Laws 1911, c. 167, § 1, p. 543; R.S.1913, § 7612; C.S.1922, § 8555; C.S.1929, § 20-401; R.S.1943, § 25-401.


Cross References

Annotations

25-402. Local actions involving real estate located in more than one county.

If the real property, the subject of the action, be an entire tract, and situated in two or more counties, or if it consists of separate tracts situated in two or more counties, the action may be brought in any county in which any tract or part thereof is situated, unless it be an action to recover the possession thereof. And if the property be an entire tract, situated in two or more counties, an action to recover the possession thereof may be brought in either of such counties; but if it consists of separate tracts in different counties, the possession of such tracts must be recovered by separate actions brought in the counties where they are situated.

Source:R.S.1867, Code § 52, p. 401; R.S.1913, § 7613; C.S.1922, § 8556; C.S.1929, § 20-402; R.S.1943, § 25-402.


Cross References

Annotations

25-403. Action for specific performance of land contract.

An action to compel the specific performance of a contract of sale of real estate may be brought in the county where the defendants or any of them reside; but if all the defendants are nonresidents of the state, it may be brought in the county where the real estate or some part thereof is situated.

Source:R.S.1867, Code § 53, p. 401; R.S.1913, § 7614; C.S.1922, § 8557; C.S.1929, § 20-403; R.S.1943, § 25-403.


Cross References

Annotations

25-403.01. Actions; venue; transfer; payment of expenses.

Any action, other than the actions mentioned in sections 25-401 to 25-403, may be brought (1) in the county where any defendant resides, (2) in the county where the cause of action arose, (3) in the county where the transaction or some part of the transaction occurred out of which the cause of action arose, or (4) if all defendants are nonresidents of this state, in any county. When an action has been commenced in any other county, the court in which the action has been commenced shall have jurisdiction over the action, but upon timely motion by a defendant, the court shall transfer the action to the proper court in a county in which such action might have been properly commenced. The court in the county to which the action is transferred, in its discretion, may order the plaintiff or the plaintiff's attorney to pay to the defendant all reasonable expenses, including attorney's fees, incurred by the defendant because of the improper venue or in proceedings to transfer the action.

Source:Laws 1986, LB 529, § 23.


25-403.02. Venue; residency; determination.

For purposes of venue, the following definitions shall apply:

(1) Any private corporation organized under the laws of this state and any foreign corporation authorized to transact business in this state is a resident of any county in which it has its registered office or other office or is doing business. A foreign corporation not authorized to transact business in this state is not a resident of this state;

(2) A partnership sued in its firm name is a resident of any county in which any partner resides or in which the partnership has an office or is doing business. If all partners are nonresidents of this state and the partnership does not have an office or do business in this state, the partnership is not a resident of this state;

(3) A voluntary unincorporated association sued in its own name is a resident of any county in which the association has an office or in which any officer of the association resides. If it has no office in this state and no officer resides in this state, the voluntary unincorporated association is not a resident of this state; and

(4) A limited liability company organized under the laws of this state and any foreign limited liability company authorized to transact business in this state is a resident of any county in which it has its registered office or other office or is doing business. A foreign limited liability company not authorized to transact business in this state is not a resident of this state.

Source:Laws 1986, LB 529, § 24; Laws 1993, LB 121, § 166.


25-404. Repealed. Laws 1986, LB 529, § 58.

25-405. Repealed. Laws 1986, LB 529, § 58.

25-406. Repealed. Laws 1986, LB 529, § 58.

25-407. Repealed. Laws 1986, LB 529, § 58.

25-408. Repealed. Laws 1986, LB 529, § 58.

25-409. Repealed. Laws 1986, LB 529, § 58.

25-410. Transfer of actions; clerk of transferor court; duties; clerk of transferee court; duties; certain support orders; how treated.

(1) For the convenience of the parties and witnesses or in the interest of justice, a district court of any county, the transferor court, may transfer any civil action to the district court of any other county in this state, the transferee court. The transfer may occur before or after the entry of judgment, and there shall be no additional fees required for the transfer.

(2) To transfer a civil action, the transferor court shall order transfer of the action to the specific transferee court requested. The clerk of the transferor court shall file with the transferee court within ten days after the entry of the transfer order: Certification of the proceedings; all original documents of the action; certification of the transcript of docket entries; and certification of the payment records of any judgment in the action maintained by the transferor court.

(3) Upon the filing of such documents by the clerk of the transferor court, the clerk of the transferee court shall enter any judgment in the action on the judgment record of the transferee court. The judgment, once filed and entered on the judgment record of the transferee court, shall be a lien on the property of the debtor in any county in which such judgment is filed. Transfer of the action shall not change the obligations of the parties under any judgment entered in the action regardless of the status of the transfer.

(4) If the transferred civil action involves a support order that has payment records maintained by the Title IV-D Division as defined in section 43-3341, the transferor court order shall notify the division to make the necessary changes in the support payment records. Support payments shall commence in the transferee court on the first day of the month following the order of transfer, payments made prior to such date shall be considered payment on a judgment entered by the transferor court, and payments made on and after such date shall be considered payment on a judgment entered by the transferee court.

Source:R.S.1867, Code § 61, p. 402; G.S.1873, c. 57, § 61, p. 532; R.S.1913, § 7621; C.S.1922, § 8564; C.S.1929, § 20-410; R.S.1943, § 25-410; Laws 1971, LB 576, § 8; Laws 2010, LB712, § 1.    


Cross References

Annotations

25-411. Change of venue; procedure; effect; expenses.

When an order is made transferring a cause for trial, as provided in section 25-410, the clerk of the court must transmit the pleadings and papers therein to the clerk of the court to which it is transferred; and in every such case, all expenses of such trial which would be chargeable to the county in which the suit originated had the cause been tried therein, as determined by the district judge of the county to which said cause has been transferred, shall be a charge upon the county in which the suit was commenced. The court to which an action is transferred shall have and exercise over the same the like jurisdiction as if it had been originally commenced therein.

Source:G.S.1873, c. 57, § 3, p. 712; R.S.1913, § 7622; C.S.1922, § 8565; C.S.1929, § 20-411; Laws 1935, c. 43, § 1, p. 162; C.S.Supp.,1941, § 20-411; R.S.1943, § 25-411.


25-412. Change of venue in local actions involving real estate; transfer and entry of judgment.

When an action affecting the title or possession of real estate has been brought in or transferred to any court of a county, other than the county in which the real estate or some portion of it is situated, the clerk of such court must, after final judgment therein, certify such judgment under his seal of office, and transmit the same to the corresponding court of the county in which the real estate affected by the action is situated. The clerk receiving such copy must file, docket and record such judgment in the records of the court, briefly designating it as a judgment transferred from ......... court (naming the proper court).

Source:G.S.1873, c. 57, § 4, p. 712; R.S.1913, § 7623; C.S.1922, § 8566; C.S.1929, § 20-412; R.S.1943, § 25-412.


25-412.01. Criminal cases; counties of 4,000 population or less; inadequate facilities; change of venue.

Any criminal case pending in either the county court or the district court in any county having a population of four thousand or less and not having adequate facilities for the trial of jury cases acceptable to the county and district judges may be tried in any adjoining county with the same effect as if tried in the county where the offense was committed.

Source:Laws 1975, LB 97, § 1; R.S.1943, (1985), § 24-901.


25-412.02. Civil cases; counties of 4,000 population or less; inadequate facilities; change of venue.

Any civil case pending in either the county court, the Nebraska Workers' Compensation Court, or the district court in any county having a population of four thousand or less and not having adequate facilities for the trial of jury or other contested cases may be tried in any adjoining county with the same effect as if tried in the county in which the case was filed or venued.

Source:Laws 1975, LB 97, § 2; Laws 1986, LB 811, § 13; R.S.Supp.,1988, § 24-902.


25-412.03. County board; agreements for criminal and civil trials.

The county board of any county described in section 25-412.01 or 25-412.02 may enter into an agreement under the Interlocal Cooperation Act with the county board of another county or other counties for the trial of all contested criminal and civil cases, whether or not a jury trial has been requested. Any case subject to any such agreement shall be subject to the applicable provisions of law relating to changes of venue except as provided in section 25-412.04.

Source:Laws 1975, LB 97, § 3; R.S.1943, (1985), § 24-903.


Cross References

25-412.04. Criminal and civil trials; agreements for change of venue; jury; selection.

The jury for any case to be tried pursuant to an agreement entered into under section 25-412.03 shall be selected from the county in which the case was first filed. The jury shall be elected in the manner prescribed in Chapter 25, article 16. The summons shall direct attendance before the court by which the case is to be tried and the return thereof shall be made to the same court.

Source:Laws 1975, LB 97, § 4; R.S.1943, (1985), § 24-904.


25-413. State, defined.

As used in sections 25-413 to 25-417, unless the context otherwise requires, state shall mean any foreign nation, and any state, district, commonwealth, territory or insular possession of the United States.

Source:Laws 1969, c. 179, § 1, p. 769.


25-414. Choice of forum; jurisdiction; conditions.

(1) If the parties have agreed in writing that an action on a controversy may be brought in this state and the agreement provides the only basis for the exercise of jurisdiction, a court of this state will entertain the action if (a) the court has power under the law of this state to entertain the action; (b) this state is a reasonably convenient place for the trial of the action; (c) the agreement as to the place of the action was not obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means; and (d) the defendant, if within the state, was served as required by law of this state in the case of persons within the state or, if without the state, was served either personally or by certified mail directed to his last-known address.

(2) This section does not apply to cognovit clauses, to arbitration clauses, or to the appointment of an agent for the service of process pursuant to statute or court order.

Source:Laws 1969, c. 179, § 2, p. 769.


Annotations

25-415. Choice of forum in another state; action pending in this state; procedure.

If the parties have agreed in writing that an action on a controversy shall be brought only in another state and it is brought in a court of this state, the court will dismiss or stay the action, as appropriate, unless (1) the court is required by statute to entertain the action; (2) the plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; (3) the other state would be a substantially less convenient place for the trial of the action than this state; (4) the agreement as to the place of the action was obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means; or (5) it would for some other reason be unfair or unreasonable to enforce the agreement.

Source:Laws 1969, c. 179, § 3, p. 769.


Annotations

25-416. Sections, how construed.

Sections 25-413 to 25-417 shall be so construed as to effectuate their general purpose to make uniform the law of those states which enact them.

Source:Laws 1969, c. 179, § 4, p. 770.


25-417. Act, how cited.

Sections 25-413 to 25-417 may be cited as the Model Uniform Choice of Forum Act.

Source:Laws 1969, c. 179, § 5, p. 770.


25-501. Actions; how commenced.

A civil action must be commenced by filing a complaint in the office of the clerk of a proper court.

Source:R.S.1867, Code § 62, p. 403; Laws 1869, § 2, p. 63; Laws 1871, § 1, p. 111; R.S.1913, § 7624; C.S.1922, § 8567; C.S.1929, § 20-501; R.S.1943, § 25-501; Laws 1971, LB 576, § 9; Laws 1979, LB 510, § 2; Laws 2002, LB 876, § 12.    


Cross References

Annotations

25-502. Repealed. Laws 1983, LB 447, § 104.

25-502.01. Praecipe for summons.

The plaintiff shall file with the clerk of the court a praecipe for summons stating the name and address of each party to be served and the manner of service for each party. Upon written request of the plaintiff, separate or additional summonses shall be issued.

Source:Laws 1983, LB 447, § 19; Laws 1984, LB 845, § 20.


25-503. Repealed. Laws 1983, LB 447, § 104.

25-503.01. Summons.

(1) The summons shall be directed to the defendant or defendants, and contain the names of the parties and the name and address of the plaintiff's attorney, if any, otherwise the address of the plaintiff. It shall notify defendant that in order to defend the lawsuit an appropriate written response shall be filed with the court within thirty days after service, and that upon failure to do so the court may enter judgment for the relief demanded in the complaint.

(2) A judgment by default shall not be different in kind from that demanded in the complaint. If only special damages are demanded a judgment by default shall not exceed the amount demanded in the complaint.

Source:Laws 1983, LB 447, § 20; Laws 2002, LB 876, § 13.    


Cross References

25-504. Repealed. Laws 1983, LB 447, § 104.

25-504.01. Summons and complaint; service.

A copy of the complaint shall be served with the summons, except when service is by publication. The plaintiff shall deliver to the clerk sufficient copies of the complaint at the time it is filed.

Source:Laws 1983, LB 447, § 21; Laws 2002, LB 876, § 14.    


25-505. Repealed. Laws 1983, LB 447, § 104.

25-505.01. Service of summons; methods; State Court Administrator; maintain list.

(1) Unless otherwise limited by statute or by the court, a plaintiff may elect to have service made by any of the following methods:

(a) Personal service which shall be made by leaving the summons with the individual to be served;

(b) Residence service which shall be made by leaving the summons at the usual place of residence of the individual to be served, with some person of suitable age and discretion residing therein;

(c) Certified mail service which shall be made by (i) within ten days of issuance, sending the summons to the defendant by certified mail with a return receipt requested showing to whom and where delivered and the date of delivery, and (ii) filing with the court proof of service with the signed receipt attached; or

(d) Designated delivery service which shall be made by (i) within ten days of issuance, sending the summons by a designated delivery service to the defendant, (ii) obtaining a signed delivery receipt showing to whom and where delivered and the date of delivery, and (iii) filing with the court proof of service with a copy of the signed delivery receipt attached. As used in this subdivision, a designated delivery service means a delivery service designated as such pursuant to 26 U.S.C. 7502(f) and a signed delivery receipt includes an electronic or facsimile receipt with an image of the recipient's signature.

(2) Failure to make service by the method elected by the plaintiff does not affect the validity of the service.

(3) The State Court Administrator shall maintain on the web site of the Supreme Court a list of designated delivery services.

Source:Laws 1983, LB 447, § 22; Laws 1984, LB 845, § 21; Laws 2009, LB35, § 6;    Laws 2011, LB669, § 7.    


Cross References

Annotations

25-506. Repealed. Laws 1983, LB 447, § 104.

25-506.01. Process; by whom served.

(1) Unless the plaintiff has elected certified mail service or designated delivery service, the summons shall be served by the sheriff of the county where service is made, by a person authorized by section 25-507 or otherwise authorized by law, or by a person, corporation, partnership, or limited liability company not a party to the action specially appointed by the court for that purpose.

(2) Certified mail service or designated delivery service shall be made by the plaintiff or plaintiff's attorney.

Source:Laws 1983, LB 447, § 23; Laws 1994, LB 1224, § 36; Laws 1999, LB 319, § 1;    Laws 2009, LB35, § 7;    Laws 2011, LB669, § 8.    


Cross References

25-507. Process server; requirements; bond; cost.

(1) In any county which does not have a person contracted as a constable pursuant to section 25-2229, any person twenty-one years of age or older or a corporation, partnership, or limited liability company that satisfies the requirements of subsection (2) of this section shall have the same power as a sheriff to execute any service of process or order.

(2) Any person or entity may exercise the powers provided in subsection (1) of this section if such person or entity (a) is not a party to the action, (b) is not related to a party to the action, (c) does not have an interest in the action, (d) is not a public official employed by the county where service is made whose duties include service of process, and (e) furnishes a good and sufficient corporate surety bond in the sum of fifteen thousand dollars, such bond being conditioned upon such person or entity faithfully and truly performing the duties of process server.

(3) Evidence of the corporate surety bond shall be provided to the clerk of each court in which such person or entity executes service of process or orders. Such person or entity is not required to furnish more than one bond to execute service of process or orders in any state court in the State of Nebraska. When service of process is made by such person or entity authorized by this section, proof of such service of process shall be shown by an affidavit.

(4) The cost of service of process is taxable as a court cost, and when service of process is made by such person or entity other than a sheriff the cost taxable as a court cost is the lesser of the actual amount incurred for service of process or orders or the statutory fee set for sheriffs in section 33-117.

Source:Laws 1999, LB 319, § 2.    


25-507.01. Summons; proof of service; return date.

(1) Within twenty days after the date of issue, the person serving the summons, other than by certified mail service or designated delivery service, shall make proof of service to the court stating the time, place, including the address if applicable, name of the person with whom the summons was left, and method of service, or return the unserved summons to the court with a statement of the reason for the failure to serve.

(2) When service is by certified mail service or designated delivery service, the plaintiff or plaintiff's attorney shall file proof of service within ten days after the signed receipt is received or is available electronically, whichever occurs first.

(3) Failure to make proof of service or delay in doing so does not affect the validity of the service.

Source:Laws 1983, LB 447, § 24; Laws 2009, LB35, § 8;    Laws 2011, LB669, § 9.    


Cross References

25-508. Repealed. Laws 1983, LB 447, § 104.

25-508.01. Service on individual.

(1) An individual party, other than a person under the age of fourteen years, may be served by personal, residence, certified mail, or designated delivery service.

(2) A party under the age of fourteen years may be served by personal, residence, certified mail, or designated delivery service upon an adult person with whom the minor resides and who is the minor's parent or guardian or the person having care of the minor. If none of these can be found, a party under the age of fourteen years may be served by personal service.

(3) If the person to be served is an incapacitated person for whom a conservator or guardian has been appointed or is confined in any institution, notice of the service shall be given to the conservator or guardian or the superintendent or similar official of the institution. Failure to give such notice does not affect the validity of the service on the incapacitated person.

Source:Laws 1983, LB 447, § 25; Laws 2011, LB669, § 10.    


Annotations

25-509. Repealed. Laws 1983, LB 447, § 104.

25-509.01. Service on corporation.

A corporation may be served by personal, residence, certified mail, or designated delivery service upon any officer, director, managing agent, or registered agent, or by leaving the process at the corporation's registered office with a person employed therein, or by certified mail or designated delivery service to the corporation's registered office.

Source:Laws 1983, LB 447, § 26; Laws 2011, LB669, § 11.    


Cross References

25-510. Repealed. Laws 1983, LB 447, § 104.

25-510.01. Repealed. Laws 1983, LB 447, § 104.

25-510.02. Service on state or political subdivision.

(1) The State of Nebraska, any state agency as defined in section 81-8,210, and any employee of the state as defined in section 81-8,210 sued in an official capacity may be served by leaving the summons at the office of the Attorney General with the Attorney General, deputy attorney general, or someone designated in writing by the Attorney General, or by certified mail or designated delivery service addressed to the office of the Attorney General.

(2) Any county, city, or village of this state may be served by personal, residence, certified mail, or designated delivery service upon the chief executive officer or clerk.

(3) Any political subdivision of this state, as defined in subdivision (1) of section 13-903, other than a county, city, or village, may be served by personal, residence, certified mail, or designated delivery service upon the chief executive officer, clerk, secretary, or other official whose duty it is to maintain the official records, or any member of the governing board or body, or by certified mail or designated delivery service to the principal office of the political subdivision.

Source:Laws 1983, LB 447, § 27; Laws 2011, LB669, § 12.    


Annotations

25-511. Repealed. Laws 1983, LB 447, § 104.

25-511.01. Repealed. Laws 1983, LB 447, § 104.

25-511.02. Service on dissolved corporation.

A dissolved corporation may be served by personal, residence, certified mail, or designated delivery service upon any appointed receiver. If there is no receiver, a dissolved corporation may be served by personal, residence, certified mail, or designated delivery service upon any person who at the time of dissolution was an officer, director, managing agent, or registered agent, or upon any officer or director designated in the last annual report filed with the Secretary of State.

Source:Laws 1983, LB 447, § 28; Laws 2011, LB669, § 13.    


25-512. Repealed. Laws 1983, LB 447, § 104.

25-512.01. Service on partnership.

A partnership or limited partnership may be served by personal, residence, certified mail, or designated delivery service upon any partner except a limited partner, or by certified mail or designated delivery service at its usual place of business, or the process may be left at its usual place of business with an employee of the partnership or limited partnership.

Source:Laws 1983, LB 447, § 29; Laws 2011, LB669, § 14.    


Cross References

25-513. Repealed. Laws 1983, LB 447, § 104.

25-513.01. Service on unincorporated association.

An unincorporated association may be served by personal, residence, certified mail, or designated delivery service upon an officer or managing agent, or by certified mail or designated delivery service to the association at its usual place of business, or by leaving the process at its usual place of business with an employee of the unincorporated association.

Source:Laws 1983, LB 447, § 30; Laws 2011, LB669, § 15.    


25-514. Repealed. Laws 1983, LB 447, § 104.

25-514.01. Service on agent.

Any party may be served by personal, residence, certified mail, or designated delivery service upon an agent authorized by appointment or by law to receive service of process.

Source:Laws 1983, LB 447, § 31; Laws 2011, LB669, § 16.    


25-515. Repealed. Laws 1983, LB 447, § 104.

25-516. Repealed. Laws 1983, LB 447, § 104.

25-516.01. Service; voluntary appearance; defenses.

(1) The voluntary appearance of the party is equivalent to service.

(2) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process may be asserted only under the procedure provided in the pleading rules adopted by the Supreme Court. If any of those defenses are asserted either by motion or in a responsive pleading and the court overrules the defense, an objection that the court erred in its ruling will be waived and not preserved for appellate review if the party asserting the defense either (a) thereafter files a demand for affirmative relief by way of counterclaim, cross-claim, or third-party claim or (b) fails to dismiss a demand for such affirmative relief that was previously filed. If any of those defenses are asserted either by motion or in a responsive pleading and the court overrules the defense, an objection that the court erred in its ruling on any issue, except the objection that the party is not amenable to process issued by a court of this state, will be waived and not preserved for appellate review if the party asserting the defense thereafter participates in proceedings on any issue other than those defenses.

Source:Laws 1983, LB 447, § 32; Laws 2002, LB 876, § 15.    


Annotations

25-517. Repealed. Laws 1983, LB 447, § 104.

25-517.01. Repealed. Laws 1983, LB 447, § 104.

25-517.02. Substitute and constructive service.

Upon motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute, the court may permit service to be made (1) by leaving the process at the defendant's usual place of residence and mailing a copy by first-class mail to the defendant's last-known address, (2) by publication, or (3) by any manner reasonably calculated under the circumstances to provide the party with actual notice of the proceedings and an opportunity to be heard.

Source:Laws 1983, LB 447, § 33.


Cross References

Annotations

25-518. Repealed. Laws 1983, LB 447, § 104.

25-518.01. Service by publication.

Service may be made by publication (1) when such service is elsewhere provided for by statute or (2) when ordered by the court.

Source:Laws 1983, LB 447, § 34.


25-519. Service by publication; how made; contents.

The publication shall be made once in each week for three successive weeks in some newspaper printed in the county where the complaint is filed if there is any printed in such county and, if there is not, in some newspaper printed in this state of general circulation in that county. It shall contain a summary statement of the claim for relief of the complaint, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer.

Source:R.S.1867, Code § 79, p. 405; R.S.1913, § 7642; C.S.1922, § 8585; C.S.1929, § 20-519; R.S.1943, § 25-519; Laws 1971, LB 47, § 1; Laws 1996, LB 299, § 19; Laws 2002, LB 876, § 16.    


Cross References

Annotations

25-520. Service by publication; when complete; how proved; affidavit of publication.

Service by publication shall be deemed complete when it shall have been made in the manner and for the time prescribed in section 25-519; and such service shall be proved by the affidavit of the printer or his foreman or principal clerk, or other person knowing the same.

Source:R.S.1867, Code § 80, p. 406; R.S.1913, § 7643; C.S.1922, § 8586; C.S.1929, § 20-520; R.S.1943, § 25-520.


Annotations

25-520.01. Service by publication; mailing of published notice; requirements; waiver; when mailing not required.

In any action or proceeding of any kind or nature, as defined in section 25-520.02, where a notice by publication is given as authorized by law, a party instituting or maintaining the action or proceeding with respect to notice or his attorney shall within five days after the first publication of notice send by United States mail a copy of such published notice to each and every party appearing to have a direct legal interest in such action or proceeding whose name and post office address are known to him. Proof by affidavit of the mailing of such notice shall be made by the party or his attorney and shall be filed with the officer with whom filings are required to be made in such action or proceeding within ten days after mailing of such notice. Such affidavit of mailing of notice shall further be required to state that such party and his attorney, after diligent investigation and inquiry, were unable to ascertain and do not know the post office address of any other party appearing to have a direct legal interest in such action or proceeding other than those to whom notice has been mailed in writing. It shall not be necessary to serve the notice prescribed by this section upon any competent person, fiduciary, partnership, or corporation, who has waived notice in writing, entered a voluntary appearance, or has been personally served with summons or notice in such proceeding.

Source:Laws 1957, c. 80, § 1, p. 325; Laws 1959, c. 97, § 1, p. 416.


Annotations

25-520.02. Action or proceeding, defined.

The term action or proceeding means all actions and proceedings in any court and any action or proceeding before the governing bodies of municipal corporations, public corporations, and political subdivisions for the equalization of special assessments or assessing the cost of any public improvement.

Source:Laws 1957, c. 80, § 2, p. 326.


Annotations

25-520.03. Sections, how construed.

Sections 25-520.01 to 25-520.03 are intended by the Legislature to be cumulative and supplemental to existing legislation. They are deemed to be a matter of general statewide concern. Such sections apply to all parties authorized by law to give notice by publication, including the State of Nebraska, its governmental subdivisions, and all public and municipal corporations.

Source:Laws 1957, c. 80, § 3, p. 326.


Annotations

25-520.04. Repealed. Laws 1986, LB 735, § 1.

25-521. Repealed. Laws 1983, LB 447, § 104.

25-522. Service by publication; designation of newspaper.

It shall be the lawful right of any plaintiff or petitioner in any suit, action or proceeding, pending or prosecuted in any of the courts of this state, in which it is necessary to publish in a newspaper any notice or copy of an order, growing out of, or connected with, such action or proceeding, either by himself or his attorney of record, to designate in what newspaper such notice or copy of order shall be published; and it shall be the duty of the judges of the district court, county judges, or any other officer charged with the duty of ordering, directing or superintending the publication of any of such notices, or copies of orders, to strictly comply with such designations when made in accordance with the provisions of this section.

Source:Laws 1909, c. 94, § 1, p. 399; R.S.1913, § 7645; C.S.1922, § 8588; C.S.1929, § 20-522; R.S.1943, § 25-522.


25-523. Legal newspaper, defined; prior publications legalized.

No newspaper shall be considered a legal newspaper for the publication of legal and other official notices unless the same shall have a bona fide circulation of at least three hundred paid subscriptions weekly, and shall have been published within the county for fifty-two successive weeks prior to the publication of such notice, and be printed, either in whole or in part, in an office maintained at the place of publication; Provided, that nothing in this section shall invalidate the publication in a newspaper which has suspended publication or been printed outside of the county, on account of fire, flood or other unavoidable accident, for not to exceed ten weeks, in the year last preceding the first publication of a legal notice, advertising or publication; provided further, that all publications made prior to May 22, 1941, in a newspaper which has, on account of flood, fire or other unavoidable accident, suspended publication or been printed in an office outside of the county, are hereby legalized; provided further, that all newspapers, otherwise complying herewith, which have, on account of flood, fire or other unavoidable accident, suspended publication or been printed in an office outside of the county, for not to exceed ten weeks in any year, are hereby legalized; and provided further, that the publication of legal or other official notices in the English language in foreign language newspapers published within the county for fifty-two successive weeks prior to the publication of such a notice, and printed either in whole or in part in an office maintained at the place of publication, shall also be legal.

Source:Laws 1915, c. 221, § 1, p. 490; Laws 1919, c. 133, § 1, p. 309; C.S.1922, § 8589; C.S.1929, § 20-523; Laws 1935, c. 40, § 1, p. 157; Laws 1941, c. 31, § 1, p. 139; C.S.Supp.,1941, § 20-523; Laws 1943, c. 44, § 1(1), p. 189; R.S.1943, § 25-523; Laws 1972, LB 661, § 17.


Annotations

25-524. Repealed. Laws 1983, LB 447, § 104.

25-525. Judgment on constructive service; how opened; procedure.

A party against whom a judgment or order has been rendered without other service than by publication in a newspaper may, at any time within five years after the date of entry of the judgment or order, have the same opened to allow the applicant to appear in court and make a defense. Before the judgment or order is opened, the applicant shall give notice to the adverse party of the intention to make such application and shall file a full answer to the petition or complaint, pay all costs, if the court requires them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action the applicant had no actual notice thereof in time to appear in court and make a defense. The title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, has passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall the proceedings affect the title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judgment or order, as provided by this section, shall be allowed to present counter-affidavits, to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make a defense.

Source:R.S.1867, Code § 82, p. 406; R.S.1913, § 7646; C.S.1922, § 8590; C.S.1929, § 20-525; R.S.1943, § 25-525; Laws 2000, LB 921, § 3;    Laws 2002, LB 876, § 17.    


Annotations

25-526. Repealed. Laws 1983, LB 447, § 104.

25-527. Procedure when defendants not all served.

Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows: (1) If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct; (2) if the action be against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.

Source:R.S.1867, Code § 84, p. 407; R.S.1913, § 7648; C.S.1922, § 8592; C.S.1929, § 20-527; R.S.1943, § 25-527.


Annotations

25-528. Personal service upon appointed resident agent; appointment invalidates constructive service, when.

It shall be lawful for any person, association or corporation, owning or claiming any interest in or lien upon any real estate lying within this state, to make and file in the office of the register of deeds of the county in which such real estate is situated an appointment, in writing, of some person, who shall be a resident of the county in which said lands lie, upon whom process may be served in any suit, action or proceeding, concerning or affecting such real estate, to which such owner or claimant shall be made a party. Such appointment shall be acknowledged in the manner provided by law for the acknowledgment of deeds, and shall specifically describe the lands affected by such appointment. From and after the filing of such appointment as herein provided, service of any writ, summons, order or notice, in any suit, action or proceeding, concerning or affecting such real estate, shall be made upon the person so appointed and designated in such manner as may be provided by law for the service of process upon persons found in this state, and shall be held and taken to be a valid and effectual service upon such owner or claimant. A copy of such appointment, or of the record thereof, duly certified by the said register of deeds, shall be deemed sufficient evidence thereof. No service made by publication shall be valid in respect to any such owner or claimant, who shall have filed an appointment under the provisions of this article; Provided, such appointment may be at any time revoked by such owner or claimant, but such revocation shall be in writing duly acknowledged, and shall specifically describe the lands affected by such appointment, and filed and recorded in the office of the register of deeds of the county in which any such real property is situated.

Source:Laws 1877, § 1, p. 17; R.S.1913, § 7649; C.S.1922, § 8593; Laws 1927, c. 65, § 1, p. 227; C.S.1929, § 20-528; R.S.1943, § 25-528.


25-529. Personal service upon appointed resident agent; appointment; recording and indexing; fees.

The register of deeds of each county shall record such appointment as shall be filed under the provisions of section 25-528 and any revocation thereof in the Miscellaneous Record, shall enter such instruments in the numerical index against the lands described therein, and shall be entitled to demand and receive fees as provided in section 33-109.

Source:Laws 1877, § 2, p. 18; R.S.1913, § 7650; C.S.1922, § 8594; Laws 1927, c. 65, § 2, p. 228; C.S.1929, § 20-529; R.S.1943, § 25-529; Laws 1984, LB 679, § 11; Laws 2012, LB14, § 1.    


25-530. Repealed. Laws 1983, LB 447, § 104.

25-530.01. Repealed. Laws 1983, LB 447, § 104.

25-530.02. Repealed. Laws 1983, LB 447, § 104.

25-530.03. Repealed. Laws 1983, LB 447, § 104.

25-530.04. Repealed. Laws 1983, LB 447, § 104.

25-530.05. Repealed. Laws 1983, LB 447, § 104.

25-530.06. Repealed. Laws 1983, LB 447, § 104.

25-530.07. Repealed. Laws 1983, LB 447, § 104.

25-530.08. Company, firm, or unincorporated association; appointment of agent; execution on judgment; fees.

When a company, firm, or unincorporated association described in section 25-313 has its principal place of business or activity outside of this state and does not have a usual place of doing business or activity within the state or a clerk or general agent within the state, such company, firm, or unincorporated association shall appoint an agent or agents in this state, and before it is authorized to engage in any kind of business or activity in this state, such company, firm, or unincorporated association shall file in the office of the Secretary of State a certified statement setting forth that such company, firm, or unincorporated association is doing business or conducting activities in the State of Nebraska, stating the nature of the business or activity, and designating an agent or agents within the State of Nebraska upon whom process or other legal notice of the commencement of any legal proceeding or in the prosecution thereof may be served. Executions issued on any judgments rendered in such proceedings shall be levied only on property of the company, firm, or unincorporated association. A fee of five dollars shall be paid for filing the certified statement with the Secretary of State. If there is a change of the agent or agents or if there is a change of street address, a statement shall be filed with the Secretary of State stating the name of the new agent or agents or the new street address or both. A filing fee of three dollars shall be paid for the filing of such statement. This section shall not apply to domestic limited partnerships and foreign limited partnerships governed by the Nebraska Uniform Limited Partnership Act.

Source:R.S.1867, Code § 25, p. 397; R.S.1913, § 7595; C.S.1922, § 8538; C.S.1929, § 20-314; R.S.1943, § 25-314; Laws 1947, c. 82, § 2, p. 257; Laws 1959, c. 96, § 1, p. 414; Laws 1961, c. 109, § 1, p. 346; Laws 1974, LB 951, § 1; Laws 1983, LB 447, § 16; R.S.Supp.,1984, § 25-314; Laws 1989, LB 482, § 5.


Cross References

Annotations

25-531. Lis pendens; notice; where filed; contents; recording; cancellation; filing fee.

When the summons has been served or publication made, the action is pending so as to charge third persons with notice of pendency. While the action is pending no interest can be acquired by third persons in the subject matter thereof, as against the plaintiff's title. In all actions brought to affect the title to real property, the plaintiff may either at the time of filing his or her complaint or afterwards, file, or in case any defendant sets up an affirmative cause of action and demands relief which shall affect the title to real estate, he or she may, at the time of filing such answer or at any time afterwards, file with the clerk or register of deeds of each county in which the real estate thus to be affected, or any part thereof, is situated, a notice of the pendency of such action. The notice shall contain the names of the parties, the object of the action, and a description of the property in such county sought to be affected thereby. If the action is for foreclosure of a mortgage, such notice shall contain the date of the mortgage, the parties thereto, and the time and place of recording the same. The clerk or register of deeds of such county shall record the notice thus filed and enter the same upon the numerical index of all lands, any part of which is included in the description in the notice, for which he or she shall be entitled to receive filing fees in accordance with section 33-109, to be paid by the person filing such notice, and which shall be taxed as part of the costs in the action. From the time of filing such notice the pendency of such action shall be constructive notice to any purchaser or encumbrancer to be affected thereby. Every person whose conveyance or encumbrance is subsequently executed or subsequently recorded shall be deemed to be a subsequent purchaser or encumbrancer and shall be bound by all proceedings taken in the action after the filing of such notice to the same extent as if he or she were made a party to the action. The court in which such action was commenced or any judge thereof may at any time thereafter on the application of any person aggrieved, on good cause shown, and on such notice as the court or judge may determine, order the notice to be canceled by the clerk or register of deeds of any county in which the notice may have been filed or recorded by filing a notice of release. In actions in which such notice is filed in a county or counties, other than the county in which the action is pending, the county clerk or the register of deeds of the county in which the action was begun may cancel such notice by executing a written release under his or her hand and seal by reason of the order of the court or judge, and forward such release by mail to the county clerk or register of deeds of the county in which the notice has been filed or recorded, and which certificate such county clerk or register of deeds shall record in the records of his or her office. At any time after such notice of pendency is recorded, the party on whose behalf the same was filed or the party's attorney of record may cause the notice to be canceled in the office of the county clerk or register of deeds of any county in which the notice has been filed or recorded. Such cancellation may be made by written release in the same manner as such cancellations are entered on order of the court. For the service required by this section, the county clerk or register of deeds shall be entitled to charge and receive fees in accordance with section 33-109, to be paid by the party causing the service to be performed.

Source:R.S.1867, Code § 85, p. 407; Laws 1887, c. 92, § 1, p. 643; R.S.1913, § 7651; C.S.1922, § 8595; C.S.1929, § 20-531; R.S.1943, § 25-531; Laws 1959, c. 140, § 1, p. 544; Laws 1963, c. 140, § 1, p. 517; Laws 1969, c. 181, § 1, p. 772; Laws 1971, LB 90, § 1; Laws 2002, LB 876, § 18;    Laws 2012, LB14, § 2.    


Annotations

25-532. Notice of judgment when property situated in more than one county.

When any part of the real property, the subject matter of an action, is situated in any other county or counties than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the clerk's office of such other county or counties before it shall operate therein as a notice, so as to charge third persons as provided in section 25-531. It shall operate as such notice without record in the county where it is rendered; but this section shall not apply to actions or proceedings under any statute now in force which does not require such record.

Source:R.S.1867, Code § 86, p. 407; R.S.1913, § 7652; C.S.1922, § 8596; C.S.1929, § 20-532; R.S.1943, § 25-532.


25-533. Attachment and execution issued from another county; notice upon entry in encumbrance book.

No levy of attachment or execution on real estate issued from any other county shall be notice to a subsequent vendee or encumbrancer in good faith, unless the sheriff shall have entered in a book, which shall be kept in the office of the clerk of the district court by such clerk and called the "encumbrance book," a statement that the land, describing it, has been so attached or levied on, the cause in which it was so attached, and when it was done, signed by such sheriff. Such book shall be open, as other books kept by such clerk, to public inspection.

Source:Laws 1895, c. 73, § 2, p. 314; R.S.1913, § 7653; C.S.1922, § 8597; C.S.1929, § 20-533; R.S.1943, § 25-533.


25-534. Order, motion, or notice; service; delivery.

Whenever in any action or proceeding, any order, motion, notice, or other document, except a summons, is required by statute or rule of the Supreme Court to be served upon or given to any party, the service or delivery shall be made in accordance with the rules of pleading in civil actions promulgated by the Supreme Court pursuant to section 25-801.01.

Source:Laws 1959, c. 100, § 1, p. 420; Laws 1981, LB 42, § 15; Laws 2008, LB1014, § 8.    


Annotations

25-535. Person, defined.

As used in sections 25-535 to 25-541, person includes an individual, executor, administrator, personal representative, corporation, partnership, limited liability company, association, or other legal or commercial entity, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state.

Source:Laws 1967, c. 143, § 1, p. 439; Laws 1993, LB 121, § 167.


Annotations

25-536. Jurisdiction over a person.

A court may exercise personal jurisdiction over a person:

(1) Who acts directly or by an agent, as to a cause of action arising from the person:

(a) Transacting any business in this state;

(b) Contracting to supply services or things in this state;

(c) Causing tortious injury by an act or omission in this state;

(d) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;

(e) Having an interest in, using, or possessing real property in this state; or

(f) Contracting to insure any person, property, or risk located within this state at the time of contracting; or

(2) Who has any other contact with or maintains any other relation to this state to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States.

Source:Laws 1967, c. 143, § 2, p. 439; Laws 1983, LB 447, § 35.


Cross References

Annotations

25-537. Service outside state.

When the exercise of personal jurisdiction is authorized by sections 25-535 to 25-541, service may be made outside this state.

Source:Laws 1967, c. 143, § 3, p. 439.


Annotations

25-538. Action in another forum; stay or dismissal of action.

When the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just.

Source:Laws 1967, c. 143, § 4, p. 439.


Annotations

25-539. Jurisdiction authorized.

A court of this state may exercise jurisdiction on any other basis authorized by law.

Source:Laws 1967, c. 143, § 5, p. 440.


Annotations

25-540. Service outside state; manner.

(1) When the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:

(a) In the manner prescribed for service within this state;

(b) In the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction;

(c) As directed by the foreign authority in response to a letter rogatory; or

(d) As directed by the court.

(2) Proof of service outside this state may be made by affidavit of the individual who made the service or in the manner prescribed by the law of this state, the order pursuant to which the service is made, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction.

Source:Laws 1967, c. 143, § 6, p. 440; Laws 1983, LB 447, § 36.


Cross References

Annotations

25-541. Sections, how construed.

Sections 25-535 to 25-541 do not repeal or modify any other law of this state permitting another procedure for service.

Source:Laws 1967, c. 143, § 7, p. 440.


25-542. Service of process; applicability.

Unless specifically provided to the contrary or the context otherwise requires, the provisions of Chapter 25, article 5, on service of process, as such provisions may from time to time be amended, shall apply to all civil proceedings in all courts of this state and to all proceedings under any statute which refers to or incorporates the general provisions on process or service of process.

Source:Laws 1983, LB 447, § 37.


25-543. Repealed. Laws 1999, LB 43, § 30.

25-601. Dismissal without prejudice.

An action may be dismissed without prejudice to a future action (1) by the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court; (2) by the court where the plaintiff fails to appear at the trial; (3) by the court for want of necessary parties; (4) by the court on the application of some of the defendants where there are others whom the plaintiff fails to diligently prosecute; (5) by the court for disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases on the trial of the action the decision must be upon the merits.

Source:R.S.1867, Code § 430, p. 465; R.S.1913, § 7654; C.S.1922, § 8598; C.S.1929, § 20-601; R.S.1943, § 25-601.


Annotations

25-602. Dismissal without prejudice; by plaintiff in vacation; exceptions; payment of costs.

The plaintiff, in any case pending in the district or Supreme Court of the state, shall, when no counterclaim or setoff has been filed by the opposite party, have the right in the vacation of any of said courts to dismiss his said action without prejudice, upon payment of costs, which dismissal shall be, by the clerk of any of said courts, entered upon the journal and take effect from and after the date thereof.

Source:Laws 1867, § 1, p. 51; R.S.1913, § 7655; C.S.1922, § 8599; C.S.1929, § 20-602; R.S.1943, § 25-602.


Annotations

25-603. Dismissal without prejudice; trial on setoff or counterclaim.

In any case where a setoff or counterclaim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed the action or failed to appear.

Source:R.S.1867, Code § 431, p. 465; R.S.1913, § 7656; C.S.1922, § 8600; C.S.1929, § 20-603; R.S.1943, § 25-603.


Annotations

25-701. Joinder of claims.

A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim may join, either as independent or as alternate claims, as many claims, legal or equitable, as the party has against an opposing party.

Source:R.S.1867, Code § 87, p. 407; Laws 1867, § 3, p. 71; R.S.1913, § 7657; C.S.1922, § 8601; C.S.1929, § 20-701; R.S.1943, § 25-701; Laws 1998, LB 234, § 3.


Annotations

25-702. Repealed. Laws 1998, LB 234, § 12.

25-703. Consolidation of actions; motion and notice.

Whenever two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no such cause be shown, the said several actions shall be consolidated.

Source:R.S.1867, Code § 150, p. 416; R.S.1913, § 7659; C.S.1922, § 8603; C.S.1929, § 20-703; R.S.1943, § 25-703.


Annotations

25-704. Consolidation of actions; order.

The order for consolidation may be made by the court or by a judge thereof in vacation.

Source:R.S.1867, Code § 151, p. 417; R.S.1913, § 7660; C.S.1922, § 8604; C.S.1929, § 20-704; R.S.1943, § 25-704.


25-705. Joinder; procedures; misjoinder.

(1) This section applies when an action involves multiple parties or more than one cause of action.

(2) A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief and against one or more of the defendants according to their respective liabilities.

(3) The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party and may order separate trials or make other orders to prevent delay or prejudice.

(4) Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with section 25-311 or 25-320.

(5) Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

Source:Laws 1998, LB 234, § 4; Laws 1999, LB 43, § 2;    Laws 2000, LB 921, § 4.    


Annotations

25-801. Repealed. Laws 2002, LB 876, § 92.

25-801.01. Rules of pleading; Supreme Court; promulgate.

(1) By January 1, 2003, the Supreme Court shall have rules of pleading in civil actions promulgated which are not in conflict with the statutes governing such matters.

(2) For all civil actions filed on or after January 1, 2003:

(a) The rules of pleading promulgated by the Supreme Court shall apply;

(b) The plaintiff's initial pleading shall be a petition when that designation is provided elsewhere by statutes. In all other civil actions the plaintiff's initial pleading shall be a complaint;

(c) The cross-petition, cross-bill, and cross-suit are abolished. Demurrers to a pleading and special appearances shall not be used. The plea in bar, plea in abatement, and other dilatory pleas shall not be used in civil actions; and

(d) All pleadings shall be construed as to do substantial justice.

Source:Laws 2002, LB 876, § 1.    


Annotations

25-802. Repealed. Laws 2002, LB 876, § 92.

25-803. Repealed. Laws 2002, LB 876, § 92.

25-804. Repealed. Laws 2002, LB 876, § 92.

25-805. Repealed. Laws 2002, LB 876, § 92.

25-806. Repealed. Laws 2002, LB 876, § 92.

25-807. Repealed. Laws 2002, LB 876, § 92.

25-808. Repealed. Laws 2002, LB 876, § 92.

25-809. Repealed. Laws 2002, LB 876, § 92.

25-810. Repealed. Laws 2002, LB 876, § 92.

25-811. Repealed. Laws 2002, LB 876, § 92.

25-812. Repealed. Laws 2002, LB 876, § 92.

25-813. Repealed. Laws 2002, LB 876, § 92.

25-814. Repealed. Laws 2002, LB 876, § 92.

25-815. Repealed. Laws 2002, LB 876, § 92.

25-816. Repealed. Laws 2002, LB 876, § 92.

25-817. Repealed. Laws 2002, LB 876, § 92.

25-818. Repealed. Laws 2002, LB 876, § 92.

25-819. Repealed. Laws 2002, LB 876, § 92.

25-820. Repealed. Laws 2002, LB 876, § 92.

25-821. Repealed. Laws 2002, LB 876, § 92.

25-822. Repealed. Laws 2002, LB 876, § 92.

25-823. Repealed. Laws 2002, LB 876, § 92.

25-824. Pleadings; use in other actions; frivolous pleading; effect; effect of signature; frivolous actions; award of attorney's fees and costs.

(1) A pleading shall not be used against a party in any criminal prosecution or action or proceeding for a penalty or forfeiture as proof of a fact admitted or alleged in such pleading. If a pleading is frivolous or made in bad faith, it may be stricken. The signature of a party or of an attorney on a pleading constitutes a certificate by him or her that he or she has read the pleading; that to the best of his or her knowledge, information, and belief there is good ground for the filing of the pleading; and that it is not interposed for delay.

(2) Except as provided in subsections (5) and (6) of this section, in any civil action commenced or appealed in any court of record in this state, the court shall award as part of its judgment and in addition to any other costs otherwise assessed reasonable attorney's fees and court costs against any attorney or party who has brought or defended a civil action that alleges a claim or defense which a court determines is frivolous or made in bad faith.

(3) When a court determines reasonable attorney's fees or costs should be assessed, it shall allocate the payment of such fees or costs among the offending attorneys and parties as it determines most just and may charge such amount or portion thereof to any offending attorney or party.

(4) The court shall assess attorney's fees and costs if, upon the motion of any party or the court itself, the court finds that an attorney or party brought or defended an action or any part of an action that was frivolous or that the action or any part of the action was interposed solely for delay or harassment. If the court finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct, including, but not limited to, abuses of civil discovery procedures, the court shall assess attorney's fees and costs.

(5) No attorney's fees or costs shall be assessed if a claim or defense was asserted by an attorney or party in a good faith attempt to establish a new theory of law in this state or if, after filing suit, a voluntary dismissal is filed as to any claim or action within a reasonable time after the attorney or party filing the dismissal knew or reasonably should have known that he or she would not prevail on such claim or action.

(6) No party who is appearing without an attorney shall be assessed attorney's fees unless the court finds that the party clearly knew or reasonably should have known that his or her action or defense or any part of such action or defense was frivolous or made in bad faith, except that this subsection shall not apply to any situation in which an attorney licensed to practice law in the state is appearing without an attorney, in which case he or she shall be held to the standards for attorneys prescribed in this section.

Source:R.S.1867, Code § 113, p. 412; R.S.1913, § 7684; Laws 1915, c. 144, § 1, p. 313; C.S.1922, § 8628; C.S.1929, § 20-824; R.S.1943, § 25-824; Laws 1969, c. 182, § 1, p. 774; Laws 1983, LB 277, § 1; Laws 1987, LB 261, § 1.


Annotations

25-824.01. Frivolous actions; attorney's fees; costs; determination of amount.

In determining the amount of a cost or an attorney's fee award pursuant to subsection (2) of section 25-824, the court shall exercise its sound discretion. When granting an award of costs and attorney's fees, the court shall specifically set forth the reasons for such award and shall, in determining whether to assess attorney's fees and costs and the amount to be assessed against offending attorneys and parties, consider the following factors, including, but not limited to: (1) The extent to which any effort was made to determine the validity of any action or claim before the action was asserted; (2) the extent of any effort made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses that have been found not to be valid; (3) the availability of facts to assist the party to determine the validity of a claim or defense; (4) the relative financial position of the parties involved; (5) whether or not the action was prosecuted or defended in whole or in part in bad faith; (6) whether or not issues of fact, determinative of the validity of a party's claim or defense, were reasonably in conflict; (7) the extent to which the party prevailed with respect to the amount of and number of claims in controversy; (8) the amount or conditions of any offer of judgment or settlement in relation to the amount or conditions of the ultimate relief granted by the court; (9) the extent to which a reasonable effort was made to determine prior to the time of filing of a claim that all parties sued or joined were proper parties owing a legally defined duty to the plaintiff or defendant; and (10) the extent of any effort made after the commencement of an action to reduce the number of parties in the action.

Source:Laws 1987, LB 261, § 2.


Annotations

25-824.02. Frivolous actions; actual attorney's fee; effect of award; stipulations authorized.

Nothing in sections 25-824 to 25-824.03 shall be construed to prevent an attorney and his or her client from negotiating the actual fee which the client is to pay the attorney. Nothing in such sections shall be intended to limit the authority of the court to approve written stipulations filed with the court or oral stipulations in open court agreeing to no award of attorney's fees or costs or an award of attorney's fees or costs in a manner different than that provided in such sections.

Source:Laws 1987, LB 261, § 3.


25-824.03. Frivolous actions; applicability of sections.

Sections 25-824 to 25-824.03 shall apply unless attorney's fees are otherwise specifically provided by law, in which case the provision allowing the greater award shall prevail.

Source:Laws 1987, LB 261, § 4.


25-825. Repealed. Laws 1969, c. 182, § 2.

25-826. Repealed. Laws 1969, c. 182, § 2.

25-827. Repealed. Laws 1969, c. 182, § 2.

25-828. Repealed. Laws 1969, c. 182, § 2.

25-829. Repealed. Laws 1969, c. 182, § 2.

25-830. Repealed. Laws 1969, c. 182, § 2.

25-831. Repealed. Laws 1969, c. 182, § 2.

25-832. Repealed. Laws 2002, LB 876, § 92.

25-833. Repealed. Laws 2002, LB 876, § 92.

25-834. Repealed. Laws 2002, LB 876, § 92.

25-835. Repealed. Laws 2002, LB 876, § 92.

25-836. Repealed. Laws 2002, LB 876, § 92.

25-837. Repealed. Laws 2002, LB 876, § 92.

25-838. Repealed. Laws 2002, LB 876, § 92.

25-839. Libel or slander; how sufficiently pleaded; burden of proof.

In an action for a libel or slander it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be denied, the plaintiff must prove on the trial the facts, showing that the defamatory matter was published or spoken of him.

Source:R.S.1867, Code § 131, p. 414; R.S.1913, § 7699; C.S.1922, § 8643; C.S.1929, § 20-839; R.S.1943, § 25-839.


Annotations

25-840. Libel or slander; truth as defense; effect of actual malice.

In the actions mentioned in section 25-839, the defendant may allege the truth of the matter charged as defamatory, prove the same and any mitigating circumstances to reduce the amount of damages, or prove either. The truth in itself and alone shall be a complete defense unless it shall be proved by the plaintiff that the publication was made with actual malice. Actual malice shall not be inferred or presumed from publication.

Source:R.S.1867, Code § 132, p. 414; R.S.1913, § 7700; C.S.1922, § 8644; C.S.1929, § 20-840; R.S.1943, § 25-840; Laws 1957, c. 83, § 1, p. 329.


Annotations

25-840.01. Libel; invasion of privacy; damages; retraction; effect.

(1) In an action for damages for the publication of a libel or for invasion of privacy as provided by section 20-204 by any medium, the plaintiff shall recover no more than special damages unless correction was requested as herein provided and was not published. Within twenty days after knowledge of the publication, plaintiff shall have given each defendant a notice by certified or registered mail specifying the statements claimed to be libelous or to have invaded privacy as provided by section 20-204 and specifically requesting correction. Publication of a correction shall be made within three weeks after receipt of the request. It shall be made in substantially as conspicuous a manner as the original publication about which complaint was made. A correction, published prior to receipt of a request therefor, shall have the same force and effect as if published after such request. The term special damages, as used in this section, shall include only such damages as plaintiff alleges and proves were suffered in respect to his or her property, business, trade, profession, or occupation as the direct and proximate result of the defendant's publication.

(2) This section shall not apply if it is alleged and proved that the publication was prompted by actual malice, and actual malice shall not be inferred or presumed from the publication.

Source:Laws 1957, c. 83, § 2, p. 329; Laws 1979, LB 394, § 12; Laws 1987, LB 93, § 8.


Annotations

25-840.02. Broadcasting stations; liability.

(1) The owner, licensee, or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee, or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by any person other than such owner, licensee, or operator, or an agent or employee thereof, unless it is alleged and proved by the complaining party that such owner, licensee, or operator, or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.

(2) In no event shall any owner, licensee, or operator, or an agent or employee thereof, be held liable for any damages for any defamatory statement uttered over the facilities of the visual or sound radio broadcasting station or network by any person other than such owner, licensee, or operator, or an agent or employee thereof, by, on behalf of, or against any candidate for public office.

(3) In any action for damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only such actual damages as such party has alleged and proved.

Source:Laws 1949, c. 316, § 1, p. 1037; R.S.1943, (1999), § 86-601; Laws 2002, LB 1105, § 420.    


Cross References

25-841. Repealed. Laws 2002, LB 876, § 92.

25-842. Repealed. Laws 2002, LB 876, § 92.

25-843. Repealed. Laws 2002, LB 876, § 92.

25-844. Repealed. Laws 2002, LB 876, § 92.

25-845. Repealed. Laws 2002, LB 876, § 92.

25-846. Repealed. Laws 2002, LB 876, § 92.

25-847. Repealed. Laws 2002, LB 876, § 92.

25-848. Repealed. Laws 2002, LB 876, § 92.

25-849. Repealed. Laws 2002, LB 876, § 92.

25-850. Repealed. Laws 2002, LB 876, § 92.

25-851. Repealed. Laws 2002, LB 876, § 92.

25-852. Repealed. Laws 2002, LB 876, § 92.

25-853. Repealed. Laws 2002, LB 876, § 92.

25-854. Repealed. Laws 2002, LB 876, § 92.

25-855. Repealed. Laws 2002, LB 876, § 92.

25-856. Repealed. Laws 2002, LB 876, § 92.

25-901. Offer of judgment before trial; procedure; effect.

The defendant in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff, or his attorney, an offer in writing to allow judgment to be taken against him for the sum specified therein. If the plaintiff accepts the offer and gives notice thereof to the defendant or his attorney, within five days after the offer was served, the offer, and an affidavit that the notice of acceptance was delivered in the time limited, may be filed by the plaintiff, or the defendant may file the acceptance, with a copy of the offer verified by affidavit; and, in either case, the offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly. If the notice of acceptance be not given in the period limited the offer shall be deemed withdrawn, and shall not be given in evidence, or mentioned on the trial. If the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant's cost from the time of the offer.

Source:R.S.1867, Code § 565, p. 493; R.S.1913, § 7717; C.S.1922, § 8661; C.S.1929, § 20-901; R.S.1943, § 25-901.


Annotations

25-902. Offer of judgment; no cause for continuance or postponement.

The making of an offer pursuant to the provisions contained in section 25-901 shall not be a cause for a continuance of an action, or a postponement of a trial.

Source:R.S.1867, Code § 566, p. 493; R.S.1913, § 7718; C.S.1922, § 8662; C.S.1929, § 20-902; R.S.1943, § 25-902.


25-903. Submitting controversy without action; procedure.

Parties to a question which might be the subject of a civil action may without action agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The court shall, thereupon, hear and determine the case, and render judgment as if an action were pending.

Source:R.S.1867, Code § 567, p. 493; R.S.1913, § 7719; C.S.1922, § 8663; C.S.1929, § 20-903; R.S.1943, § 25-903.


Cross References

Annotations

25-904. Record; what constitutes.

The case, the submission and the judgment shall constitute the record.

Source:R.S.1867, Code § 568, p. 494; R.S.1913, § 7720; C.S.1922, § 8664; C.S.1929, § 20-904; R.S.1943, § 25-904.


25-905. Judgment; effect.

The judgment shall be with costs, may be enforced, and shall be subject to reversal, in the same manner as if it had been rendered in an action, unless otherwise provided in the submission.

Source:R.S.1867, Code § 569, p. 494; R.S.1913, § 7721; C.S.1922, § 8665; C.S.1929, § 20-905; R.S.1943, § 25-905.


25-906. Confession of judgment after action brought; effect.

After an action for the recovery of money is brought, the defendant may offer in court to confess judgment for part of the amount claimed, or part of the causes involved in the action. Whereupon, if the plaintiff, being present, refuses to accept such confession of judgment in full of his demands against the defendant in the action, or, having had such notice that the offer would be made, of its amount and of the time of making it, as the court shall deem reasonable, fail to attend, and on the trial do not recover more than was so offered to be confessed, such plaintiff shall pay all the costs of the defendant incurred after the offer. The offer shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor be given in evidence upon the trial.

Source:R.S.1867, Code § 570, p. 494; R.S.1913, § 7722; C.S.1922, § 8666; C.S.1929, § 20-906; R.S.1943, § 25-906.


Annotations

25-907. Confession of judgment before action brought; effect.

Before an action for the recovery of money is brought against any person, he may go into the court of the county of his residence, or of that in which the person having the cause of action resides, which would have jurisdiction of the action, and offer to confess judgment in favor of such person for a specified sum on such cause of action. Whereupon, if such person, having had such notice that the offer would be made, of its amount and of the time and place of making it, as the court shall deem reasonable, does not attend to accept the confession, or attending, refuses to accept it, and should afterward commence an action upon such cause, and not recover more than the amount so offered to be confessed, he shall pay all the costs of the action; and on the trial thereof, the offer shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor be given in evidence.

Source:R.S.1867, Code § 571, p. 494; R.S.1913, § 7723; C.S.1922, § 8667; C.S.1929, § 20-907; R.S.1943, § 25-907.


25-908. Motion, defined.

A motion is an application for an order addressed to the court or a judge in vacation, by any party to a suit or proceeding, or one interested therein.

Source:R.S.1867, Code § 572, p. 495; R.S.1913, § 7724; C.S.1922, § 8668; C.S.1929, § 20-908; R.S.1943, § 25-908.


Annotations

25-909. Motion; several objects authorized.

Several objects may be included in the same motion, if they all grow out of or are connected with the action or proceeding in which it is made.

Source:R.S.1867, Code § 573, p. 495; R.S.1913, § 7725; C.S.1922, § 8669; C.S.1929, § 20-909; R.S.1943, § 25-909.


Cross References

25-910. Notice of motion; contents.

Where notice of a motion is required, it must be in writing and shall state (1) the names of the parties to the action or proceeding in which it is to be made, (2) the name of the court or judge before whom it is to be made, (3) the place where and the day on which it will be heard, (4) the nature and terms of the order or orders to be applied for, and (5) if affidavits are to be used on the hearing, the notice shall state that fact. It shall be served a reasonable time before the hearing.

Source:R.S.1867, Code § 574, p. 495; R.S.1913, § 7726; C.S.1922, § 8670; C.S.1929, § 20-910; R.S.1943, § 25-910.


Annotations

25-911. Repealed. Laws 1961, c. 284, § 1.

25-912. Repealed. Laws 1961, c. 284, § 1.

25-913. Motion to strike pleadings and papers from files; notice, when.

Motions to strike pleadings and papers from the files may be made with or without notice, as the court or judge shall direct.

Source:R.S.1867, Code § 577, p. 495; R.S.1913, § 7729; C.S.1922, § 8673; C.S.1929, § 20-913; R.S.1943, § 25-913.


Annotations

25-914. Order, defined.

Every direction of a court or judge, made or entered in writing and not included in a judgment, is an order.

Source:R.S.1867, Code § 578, p. 495; R.S.1913, § 7730; C.S.1922, § 8674; C.S.1929, § 20-914; R.S.1943, § 25-914.


25-915. Orders out of court; journal entry.

Orders made out of court shall be forthwith entered by the clerk in the journal of the court in the same manner as orders made in term.

Source:R.S.1867, Code § 579, p. 495; R.S.1913, § 7731; C.S.1922, § 8675; C.S.1929, § 20-915; R.S.1943, § 25-915.


25-1001. Attachment; grounds.

The plaintiff, in a civil action for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defendant when the defendant or one of several defendants (1) has absconded with the intent to defraud his or her creditors; (2) has left the county of his or her residence to avoid the service of a summons; (3) so conceals himself or herself that a summons cannot be served upon him or her; (4) is about to remove his or her property, or a part thereof, out of the county in which the property is located, with the intent to defraud his or her creditors; (5) is about to convert his or her property, or a part thereof, into money, for the purpose of placing it beyond the reach of his or her creditors; (6) has property, or rights, in action, which he or she conceals; (7) has assigned, removed or disposed of, or is about to dispose of his or her property, or a part thereof, with the intent to defraud his or her creditors; or (8) fraudulently contracted the debt or incurred the obligation for which suit is about to be or has been brought. The grounds for attachment on a claim before it is due are set forth in section 25-1049.

Source:R.S.1867, Code § 198, p. 424; Laws 1911, c. 168, § 1, p. 544; R.S.1913, § 7732; Laws 1915, c. 145, § 1, p. 314; C.S.1922, § 8676; C.S.1929, § 20-1001; R.S.1943, § 25-1001; Laws 1980, LB 597, § 1.


Annotations

25-1002. Attachment; affidavit of plaintiff; contents.

An order of attachment shall be approved by a judge of any district court or county court only after there has been presented to him or her an affidavit or affidavits based upon personal knowledge (1) that the facts set forth in plaintiff's complaint which state a valid cause of action and the amount plaintiff is entitled to recover are true, (2) describing the existence and approximate value of any of defendant's property known to the plaintiff to be subject to the jurisdiction of the court, and (3) stating specific facts demonstrating reasonable cause that one or more of the grounds for an attachment enumerated in section 25-1001 exist.

Source:R.S.1867, Code § 199, p. 425; Laws 1911, c. 168, § 2, p. 545; R.S.1913, § 7733; C.S.1922, § 8677; C.S.1929, § 20-1002; R.S.1943, § 25-1002; Laws 1980, LB 597, § 2; Laws 1984, LB 13, § 36; Laws 1991, LB 732, § 42; Laws 2002, LB 876, § 19.    


Annotations

25-1003. Attachment; plaintiff's undertaking; bond; amount.

(1) The judge to whom the affidavit described in section 25-1002 is presented shall determine the amount of an undertaking the plaintiff shall be required to file. The judge shall also approve the sufficiency of one or more sureties of the plaintiff, unless the plaintiff presents, by affidavit or otherwise, specific facts demonstrating that no sureties are necessary to protect the defendant from loss.

(2) In determining the amount of the bond described in subsection (1) of this section, the judge shall be guided by the amount of probable damage that will be suffered by the defendant if his or her property is wrongfully attached. In estimating the probable damage the defendant would suffer, the judge shall consider all the circumstances presented to him or her in the plaintiff's affidavits, including the value of any of the defendant's property described therein.

(3) After determining the amount of the plaintiff's undertaking, along with necessary sureties, the judge shall, if an order of attachment is otherwise proper under section 25-1002, direct the clerk to issue, after the necessary bond is filed, an order of attachment in an amount determined by the judge to approximate the amount of the claim and the costs of the action including the costs of the attachment.

Source:R.S.1867, Code § 200, p. 425; Laws 1911, c. 168, § 3, p. 545; R.S.1913, § 7734; C.S.1922, § 8678; C.S.1929, § 20-1003; R.S.1943, § 25-1003; Laws 1969, c. 183, § 1, p. 775; Laws 1980, LB 597, § 3.


Cross References

Annotations

25-1004. Attachment; order; contents; service; manner.

The order of attachment shall (1) require the sheriff to attach the lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, money, and effects of the defendant in his or her county not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the amount stated in the order of attachment; (2) inform the defendant of his or her right to obtain redelivery of the property attached by executing a redelivery bond in accordance with sections 25-1009 and 25-1024; and (3) inform the defendant of his or her right under section 25-1040, to move to discharge the attachment after service of the order upon him or her and of the plaintiff's obligation under section 25-1041, to prove the grounds upon which the attachment order was issued by a preponderance of the evidence if such a motion to discharge is made.

The order of attachment shall be directed and delivered to the sheriff and shall be served on the defendant in any manner authorized by statute for service of a summons.

Source:R.S.1867, Code § 201, p. 426; R.S.1913, § 7735; C.S.1922, § 8679; C.S.1929, § 20-1004; R.S.1943, § 25-1004; Laws 1980, LB 597, § 4.


Annotations

25-1005. Attachment; several and successive orders; issuance to several counties; costs; taxation.

Orders of attachment may be issued to the sheriffs of different counties; and several of them may, at the option of the plaintiff, be issued at the same time or in succession; but such only as have been executed shall be taxed in the costs, unless otherwise directed by the court.

Source:R.S.1867, Code § 202, p. 426; R.S.1913, § 7736; C.S.1922, § 8680; C.S.1929, § 20-1005; R.S.1943, § 25-1005.


Annotations

25-1006. Attachment; order; return day.

The return day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it issued.

Source:R.S.1867, Code § 203, p. 426; R.S.1913, § 7737; C.S.1922, § 8681; C.S.1929, § 20-1006; R.S.1943, § 25-1006.


Annotations

25-1007. Attachment; several orders against same defendant; time of service.

When there are several orders of attachment against the same defendant, they shall be executed in the order in which they are received by the sheriff.

Source:R.S.1867, Code § 204, p. 426; R.S.1913, § 7738; C.S.1922, § 8682; C.S.1929, § 20-1007; R.S.1943, § 25-1007.


Annotations

25-1008. Attachment; order; execution; inventory; appraisement.

The order of attachment shall be executed by the sheriff without delay. He shall go to the place where defendant's property may be found, and there, in the presence of two residents of the county, declare that by virtue of said order he attaches said property at the suit of such plaintiff; and the officer, with the said residents, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and residents and returned with the order. Where the property attached is real property, the officer shall leave with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order. Where it is personal property, and accessible, he shall take the same into his custody, and hold it subject to the order of the court.

Source:R.S.1867, Code § 205, p. 426; R.S.1913, § 7739; C.S.1922, § 8683; C.S.1929, § 20-1008; R.S.1943, § 25-1008.


Cross References

Annotations

25-1009. Attachment or garnishment; delivery of property to defendant or garnishee; conditions.

(1) The sheriff shall deliver the property attached to the person in whose possession it was found, and property or money seized in garnishment, to the defendant in the attachment proceedings, if the defendant be the true owner thereof, upon the delivery by such person, either to the sheriff at any time before the return of the sheriff of the attachment or garnishment process or to the clerk of the court, after the return by the sheriff to the court, of an undertaking to the plaintiff, with one or more sufficient sureties resident in the county, or a bonding company authorized to do business in the State of Nebraska, to the effect that the parties to the same are bound, in the amount of the appraised value thereof, or in the case of garnishment, in the amount of the value of the property or money in the hands of the garnishee, that the property or its appraised value in money shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person so bound. In case of garnishment, the garnishee shall be discharged upon the approval of said bond.

(2) If the defendant presents to the court, by affidavit or otherwise, specific facts demonstrating that no sureties are necessary to insure that the property or its appraised value in money shall be forthcoming to answer the judgment of the court in the action, the court may allow the undertaking to be executed by the defendant alone.

Source:R.S.1867, Code § 206, p. 426; R.S.1913, § 7740; Laws 1915, c. 146, § 1, p. 316; C.S.1922, § 8684; C.S.1929, § 20-1009; R.S.1943, § 25-1009; Laws 1980, LB 597, § 5.


Annotations

25-1010. Attachment; garnishment; affidavit; summons; answer; duties of garnishee; written interrogatories; financial institution; service of process; designated location; Department of Banking and Finance; immunity.

(1) When an affidavit is filed in a civil action containing the necessary allegations of an affidavit of attachment and in addition allegations that the affiant has good reason to and does believe that any person, partnership, limited liability company, or corporation to be named has property of and is indebted to the defendant, describing such property, in his or her possession that cannot be levied upon by attachment, a judge of any district court or county court may direct the clerk to issue a summons and order requiring such person, partnership, limited liability company, or corporation as garnishee to answer written interrogatories, to be furnished by the plaintiff and attached to such summons and order, respecting the matters set forth in section 25-1026. All answers must be given in writing but do not need to be verified or given under oath. All answers so given will be deemed to be true and subject to all of the penalties of perjury in the event of willful falsification.

(2) The summons and order referred to in subsection (1) of this section shall be returnable within five days from the date of the issuance thereof and shall require the garnishee to answer within ten days from the date of service upon him or her. The order shall inform the garnishee (a) of the penalties that may be imposed in the event of willful falsification, (b) that he or she is obligated to hold the property of every description and the credits of the defendant in his or her possession or under his or her control at the time of the service of the order and the interrogatories until further direction from the court, (c) of his or her ability to obtain discharge from liability to the defendant under section 25-1027, and (d) of the ability of the court to enter judgment against him or her upon failure to answer the interrogatories as provided in section 25-1028. If the answers to the interrogatories identify property of the defendant in the possession of the garnishee, the clerk shall mail to the last-known address of the defendant copies of the garnishment summons and answers to interrogatories within five days after the return of the answers to the interrogatories.

(3) Prior to final judgment in an action, no order of garnishment shall issue for wages due from an employer to an employee.

(4)(a) In any case involving service of a garnishment summons on a financial institution where deposits are received within this state, the financial institution shall (i) if its main chartered office is located in this state, designate its main chartered office for the service of summons or (ii) if its main chartered office is located in another state, designate any one of its offices or branches or its agent for service of process in this state for service of summons. The designation of a main chartered office or an office or branch or the agent for service of process under this subdivision shall be made by filing a notice of designation with the Department of Banking and Finance, shall contain the physical address of the main chartered office or the office or branch or the agent for service of process designated, and shall be effective upon placement on the department web site. The department shall post the list of such designated main chartered offices and offices or branches or agents for service of process on its web site for access by the public. A financial institution may modify or revoke a designation made under this subdivision by filing the modification or revocation with the department. The modification or revocation shall be effective when the department's web site has been updated to reflect the modification or revocation, except that the judgment creditor may rely upon the designation that was modified or revoked during the thirty-day period following the effective date of the modification or revocation if the summons is timely served upon the financial institution. The department shall update its web site to reflect a filing by a financial institution pursuant to this subdivision or a modification or revocation filed by a financial institution pursuant to this subdivision within ten business days following the filing by the financial institution. The department web site shall reflect the date its online records for each financial institution have most recently been updated.

(b) If a financial institution where deposits are received has designated its main chartered office or one of its offices or branches or its agent for service of process for the service of summons, service made on the main chartered office or the office or branch or the agent for service of process so designated shall be valid and effective as to any property or credits of the defendant in the possession or control of the main chartered office of the financial institution in this state and any of the financial institution offices or branches located within this state. If service of summons is not made on the main chartered office or the office or branch or the agent for service of process designated by the financial institution, but instead is made at another office or branch of the financial institution located in Nebraska, the financial institution, in its discretion, and without violating any obligation to its customer, may elect to treat the service of summons as valid and effective as to any property or credits of the defendant in the possession or control of the main chartered office of the financial institution in this state and any of the financial institution offices or branches located within this state. In the absence of such an election, the financial institution shall file a statement with the interrogatories that the summons was not served at the financial institution's designated location for receiving service of summons and, therefore, was not processed, and shall provide the address at which the financial institution is to receive service of summons.

(c) For purposes of this subsection, financial institution means a bank, savings bank, building and loan association, savings and loan association, or credit union whether chartered by the United States, the Department of Banking and Finance, or a foreign state agency.

(d) The notice of designation, modification, or revocation shall be made by a financial institution on forms prescribed by the department.

(e) The Department of Banking and Finance, any employee of the department, or any person acting on behalf of the department shall be immune from civil and criminal liability for any acts or omissions which occur as a result of the requirements of this subsection.

Source:R.S.1867, Code § 207, p. 427; R.S.1913, § 7741; C.S.1922, § 8685; C.S.1929, § 20-1010; R.S.1943, § 25-1010; Laws 1951, c. 67, § 1, p. 202; Laws 1955, c. 85, § 1, p. 254; Laws 1959, c. 101, § 1, p. 422; Laws 1971, LB 834, § 1; Laws 1980, LB 597, § 6; Laws 1984, LB 13, § 37; Laws 1991, LB 732, § 43; Laws 1993, LB 121, § 168; Laws 2015, LB195, § 1.    


Annotations

25-1011. Garnishment; service upon garnishee; forms; notice; hearing.

(1) The summons and order of garnishment and the interrogatories in duplicate, a notice to judgment debtor form, and a request for hearing form shall be served upon the garnishee in the manner provided for service of a summons in a civil action.

(2) The judgment creditor or his or her agent or attorney shall send to the judgment debtor by certified mail to the last-known address of the judgment debtor a copy of the summons and order of garnishment, a notice to judgment debtor form, and a request for hearing form within seven business days after issuance by the court and shall certify in writing to the court the date of the mailing.

(3) The Supreme Court by rule of court shall promulgate uniform garnishment forms for use in all courts in this state. The forms shall include the summons and order of garnishment, the garnishment interrogatories, a notice to judgment debtor form, and a request for hearing form.

(4) The notice to judgment debtor form shall include the following information:

(a) That certain funds are exempt from garnishment if such funds are from certain government benefits and other sources;

(b) That wages are exempt up to a certain level and the amount that can be garnished varies if the judgment debtor is the head of a family;

(c) That if the judgment debtor believes the court should not allow a garnishment either because the funds sought are exempt or because the amount is not owed on the judgment, the judgment debtor is entitled to a hearing within ten days after a request by the judgment debtor to determine such issues; and

(d) That if the judgment debtor wishes a hearing as prescribed in subdivision (c) of this subsection, the judgment debtor shall make a request by filling out the request for hearing form and file the form with the court within three business days after receipt of the notice to judgment debtor form by the judgment debtor.

(5) If the judgment debtor in a garnishment proceeding requests a hearing, the court shall grant the hearing within ten days of the request.

Source:R.S.1867, Code § 208, p. 427; R.S.1913, § 7742; C.S.1922, § 8686; C.S.1929, § 20-1011; R.S.1943, § 25-1011; Laws 1951, c. 67, § 2, p. 203; Laws 1955, c. 85, § 2, p. 255; Laws 1980, LB 597, § 7; Laws 1983, LB 447, § 39; Laws 1984, LB 845, § 23; Laws 1988, LB 1030, § 14; Laws 2010, LB1085, § 1.    


Annotations

25-1012. Repealed. Laws 1980, LB 597, § 18.

25-1012.01. Garnishment; public officers and employees.

All provisions, including provisions for a continuing lien prescribed in section 25-1056, requirements, conditions, and exemptions of the garnishment laws of the State of Nebraska shall apply to all state, county, municipal, municipally owned corporation, township, and school district officers and employees to the same extent and effect as such laws apply under the existing statutes of the State of Nebraska to officers and employees of private corporations. Consent is hereby given for garnishment proceedings against the State of Nebraska and against all counties, townships, municipal corporations, municipally owned corporations, and school districts in the same manner and under the same procedure as is now provided by law for bringing such suits and proceedings against corporations and individuals. This section shall apply only in case it is sought to hold and apply the earnings of such officers and employees, which earnings have been earned or are to be earned by personal services rendered to the state or to any county, township, municipal corporation, municipally owned corporation, or school district.

Source:Laws 1980, LB 597, § 16; Laws 1988, LB 1030, § 15.


25-1012.02. Garnishment; public officers and employees; procedure; process; answer.

Such proceedings may be brought against the State of Nebraska or any county, township, municipal corporation, municipally owned corporation, or school district as garnishee defendant, and process shall be served in the manner provided for service of a summons in a civil action, except that certified mail service may not be used. It shall be the duty of the garnishee defendant to answer any garnishment summons served under the provisions of this section and section 25-1012.01 in the same manner as is now provided by law for the answer of corporations, and such defendant shall abide the order of the court issuing the garnishment, with regard to paying into court any amount ordered, not in excess of the amount earned by the officer or employee garnished, to the date of the answer. Such defendant may submit a written answer by United States mail to the clerk of the court issuing the summons. Such answer in garnishment shall in addition to any other matters stated therein state the amount of money due the officer or employee whose earnings are sought to be held to the answer day as shown in such summons, but shall not include the amount of any check or warrant which has been drawn and signed at the time of the service of garnishment summons.

Source:Laws 1980, LB 597, § 17; Laws 1984, LB 845, § 24.


25-1013. Repealed. Laws 1980, LB 597, § 18.

25-1014. Several attachments of same property; inventory and appraisement.

Different attachments of the same property may be made by the same officer, and one inventory and appraisement shall be sufficient, and it shall not be necessary to return the same with more than one order.

Source:R.S.1867, Code § 209, p. 427; R.S.1913, § 7743; C.S.1922, § 8687; C.S.1929, § 20-1014; R.S.1943, § 25-1014.


Annotations

25-1015. Attached property; subsequent orders; procedure.

When the property is under attachment, it shall be attached under subsequent orders as follows: (1) If it is real property, it shall be attached in the manner prescribed in section 25-1008; (2) if it is personal property, it shall be attached as in the hands of the officer and subject to any previous attachment; and (3) if the same person or corporation be made a garnishee, a copy of the order and notice shall be left with him in the manner prescribed in section 25-1011.

Source:R.S.1867, Code § 210, p. 427; R.S.1913, § 7744; C.S.1922, § 8688; C.S.1929, § 20-1015; R.S.1943, § 25-1015; Laws 1959, c. 102, § 1, p. 425.


Annotations

25-1016. Order of attachment; return; contents.

The officer shall return upon every order of attachment what he or she has done under it. The return must show when and how the defendant was served, and the property attached and the time it was attached. When garnishees are served, their names and the time each was served must be stated. The officer shall also return with the order all undertakings given under it.

Source:R.S.1867, Code § 211, p. 427; R.S.1913, § 7745; C.S.1922, § 8689; C.S.1929, § 20-1016; R.S.1943, § 25-1016; Laws 1980, LB 597, § 8.


Annotations

25-1017. Order of attachment; effect; lien of consignee; interest and other costs; how computed.

An order of attachment binds the property attached from the time of service, and the garnishee shall stand liable to the plaintiff in attachment for all property, money, and credits in his hands, or due from him to defendant, from the time he is served with the written notice mentioned in section 25-1011, notwithstanding the money or debt owing by such garnishee, and which is sought to be attached, may be payable at the place of residence of a nonresident defendant; but where the property is attached in the hands of a consignee, his lien thereon shall not be affected by the attachment.

At the time of the issuance of the order of attachment, all interest and other costs due, as of that date, shall be computed. All interest and other costs which accrue after such date shall be specified on a per day basis or such other basis for assessment as may exist. Upon delivery of the attached property by the garnishee, such garnishee shall not be liable for interest or costs other than those specified in the order of attachment.

Source:R.S.1867, Code § 212, p. 427; Laws 1911, c. 168, § 4, p. 546; R.S.1913, § 7746; C.S.1922, § 8690; C.S.1929, § 20-1017; R.S.1943, § 25-1017; Laws 1959, c. 102, § 2, p. 425; Laws 1978, LB 670, § 1.


Annotations

25-1018. Attachment; receiver; appointment; oath; bond; accounting.

The court, or any judge thereof during vacation, may, on the application of the plaintiff and on good cause shown, appoint a receiver, who shall take an oath faithfully to discharge his duty, and shall give an undertaking to the State of Nebraska in such sum as the court or judge may direct and with such security as shall be approved by the clerk of the court for the faithful performance of his duty as such receiver, and to pay over all money, and account for all property which may come into his hands by virtue of his appointment, at such times and in such manner as the court may direct.

Source:R.S.1867, Code § 213, p. 428; R.S.1913, § 7747; C.S.1922, § 8691; C.S.1929, § 20-1018; R.S.1943, § 25-1018.


Cross References

Annotations

25-1019. Attachment; receiver; powers and duties; actions by.

Such receiver shall take possession of all notes, due bills, books of account, accounts and all other evidences of debt, that have been taken by the sheriff or other officer as the property of the defendant in attachment, and shall proceed to settle and collect the same. For that purpose, he may commence and maintain actions in his own name as such receiver but in such actions no right of defense shall be impaired or affected.

Source:R.S.1867, Code § 214, p. 428; R.S.1913, § 7748; C.S.1922, § 8692; C.S.1929, § 20-1019; R.S.1943, § 25-1019.


Annotations

25-1020. Attachment; receiver; appointment; notice to debtors of defendant in attachment; effect.

Such receiver shall forthwith give notice of his appointment to the persons indebted to the defendant in attachment. The notice shall be written or printed, and shall be served on the debtor or debtors by copy personally or by copy left at the residence. From the date of such service the debtors shall stand liable to the plaintiff in attachment for the amount of money and credits in their hands, or due from them to the defendant in attachment, and shall account therefor to the receiver.

Source:R.S.1867, Code § 215, p. 428; R.S.1913, § 7749; C.S.1922, § 8693; C.S.1929, § 20-1020; R.S.1943, § 25-1020.


25-1021. Attachment; receiver; reports; custody of property; duties.

Such receiver shall, when required, report his proceedings to the court, and hold all money collected by him and property which may come into his hands subject to the order of the court.

Source:R.S.1867, Code § 216, p. 428; R.S.1913, § 7750; C.S.1922, § 8694; C.S.1929, § 20-1021; R.S.1943, § 25-1021.


25-1022. Attachment; sheriff; powers when no receiver appointed; bond.

When a receiver is not appointed by the court or a judge thereof, as provided in section 25-1018, the sheriff or other officer attaching the property shall have all the powers and perform all the duties of a receiver appointed by the court or judge, and may, if necessary, commence and maintain actions in his own name as such officer. He may be required to give security other than his official undertaking.

Source:R.S.1867, Code § 217, p. 428; R.S.1913, § 7751; C.S.1922, § 8695; C.S.1929, § 20-1022; R.S.1943, § 25-1022.


25-1023. Attached property; preservation; sale; proceeds.

The court shall make proper orders for the preservation of the property during the pendency of the suit. It may direct the sale of property when, because of its perishable nature or the costs of keeping it, a sale will be for the benefits of the parties. In vacation, such sale may be ordered by the judge of the court. The sale shall be public, after such advertisement as is prescribed for the sale of like property on execution, and shall be made in such manner, and upon such terms of credit, with security, as the court or judge, having regard to the probable duration of the action, may direct. The proceeds, if collected by the sheriff, with all the money received by him from garnishees, shall be held and paid over by him under the same requirement and responsibilities of himself and sureties as are provided in respect to money deposited in lieu of bail.

Source:R.S.1867, Code § 218, p. 429; R.S.1913, § 7752; C.S.1922, § 8696; C.S.1929, § 20-1023; R.S.1943, § 25-1023.


25-1024. Attachment; discharge; bond; effect; restitution of property or proceeds.

(1) If the defendant, or any other person on his or her behalf, at any time before judgment, causes an undertaking to be executed to the plaintiff by one or more sureties resident in the county, to be approved by the court, in the amount of the plaintiff's claim as stated in his or her affidavit, to the effect that the defendant shall perform the judgment of the court, the attachment in such action shall be discharged and restitution made of any property taken under it or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee in such action for any property of the defendant in his or her hands.

(2) If the defendant presents to the court, by affidavit or otherwise, specific facts demonstrating that no sureties are necessary to insure satisfaction of the plaintiff's claim, the court may allow the undertaking to be executed by the defendant alone.

Source:R.S.1867, Code § 219, p. 429; R.S.1913, § 7753; C.S.1922, § 8697; C.S.1929, § 20-1024; R.S.1943, § 25-1024; Laws 1980, LB 597, § 9.


Annotations

25-1025. Attachment; discharge; bond, how executed.

The undertaking mentioned in subsection (1) of section 25-1024 may, in vacation, be executed in the presence of the sheriff having the order of attachment in his or her hands, or, after the return of the order, before the clerk, with the same effect as if executed in court, the sureties in either case to be approved by the officer before whom the undertaking is executed.

Source:R.S.1867, Code § 220, p. 429; R.S.1913, § 7754; C.S.1922, § 8698; C.S.1929, § 20-1025; R.S.1943, § 25-1025; Laws 1980, LB 597, § 10.


25-1026. Garnishee; answer; interrogatories; filing fee; costs.

The garnishee shall answer, under oath, all the interrogatories put to him touching the property of every description and credits of the defendant in his possession or under his control at the time of the service of the summons and interrogatories, and he shall disclose truly the amount owing by him to the defendant, whether due or not, and, in case of a corporation, any stock therein held by or for the benefit of the defendant, at the time of the service of the summons and interrogatories. The fee for filing of answer may be taxed and collected in the same manner as other costs in such proceedings.

Source:R.S.1867, Code § 221, p. 429; Laws 1877, § 1, p. 10; R.S.1913, § 7755; C.S.1922, § 8699; C.S.1929, § 20-1026; R.S.1943, § 25-1026; Laws 1951, c. 67, § 3, p. 203; Laws 1959, c. 101, § 2, p. 423.


Annotations

25-1027. Garnishee; payment into court; effect; costs.

A garnishee may pay the money owing to the defendant by him into court. He shall be discharged from liability to the defendant for any money so paid not exceeding the plaintiff's claim. He shall not be subjected to costs beyond those caused by his resistance of the claim against him; and if he disclose the property in his hands, or the true amount owing by him, and deliver or pay the same according to the order of the court, he shall be allowed his costs.

Source:R.S.1867, Code § 222, p. 430; R.S.1913, § 7756; C.S.1922, § 8700; C.S.1929, § 20-1027; R.S.1943, § 25-1027; Laws 1951, c. 67, § 4, p. 204.


Annotations

25-1028. Garnishee; failure to answer; presumption; judgment.

If the garnishee fails to answer, as required by section 25-1026, he shall be presumed to be indebted to the defendant in the full amount of the claim of plaintiff. Upon notice to the garnishee given within such time and in such manner as the court shall direct, judgment may be entered for such amount as the court may find due from the garnishee.

Source:R.S.1867, Code § 223, p. 430; R.S.1913, § 7757; C.S.1922, § 8701; C.S.1929, § 20-1028; R.S.1943, § 25-1028; Laws 1951, c. 67, § 5, p. 204.


Annotations

25-1029. Garnishment; property; delivery into court; bond in lieu of delivery.

If the garnishee answers that, at the time of the service of the summons and interrogatories upon him or her, he or she was possessed of any property of the defendant or was indebted to him or her, the court may order the delivery of such property and the payment of the amount owing by the garnishee into court; or the court may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff by one or more sufficient sureties to the effect that the amount shall be paid or the property forthcoming as the court may direct. If the garnishee presents to the court, by affidavit or otherwise, specific facts demonstrating that no sureties are necessary to insure that the amount owing by the garnishee shall be paid, or the property forthcoming, the court may allow the undertaking to be executed by the garnishee alone.

Source:R.S.1867, Code § 224, p. 430; R.S.1913, § 7758; C.S.1922, § 8702; C.S.1929, § 20-1029; R.S.1943, § 25-1029; Laws 1951, c. 67, § 6, p. 204; Laws 1959, c. 101, § 3, p. 423; Laws 1980, LB 597, § 11.


Annotations

25-1030. Garnishee; answer; controvert; allegations; liability; release.

If the garnishee appears and answers and his or her disclosure is not satisfactory to the plaintiff, or if he or she fails to comply with the order of the court, by delivering the property and paying the money owing into court, or giving the undertaking required in section 25-1029, the plaintiff may file an application within twenty days for determination of the liability of the garnishee. The application may controvert the answer of the garnishee, or may allege facts showing the existence of indebtedness of the garnishee to the defendant or of the property and credits of the defendant in the hands of the garnishee. The answer of the garnishee, if one has been filed, and the application for determination of the liability of the garnishee shall constitute the pleadings upon which trial of the issue of the liability of the garnishee shall be had. If the plaintiff fails to file such application within twenty days, the garnishee shall be released and discharged.

Source:R.S.1867, Code § 225, p. 430; R.S.1913, § 7759; C.S.1922, § 8703; C.S.1929, § 20-1030; R.S.1943, § 25-1030; Laws 1951, c. 67, § 7, p. 204; Laws 1980, LB 597, § 12.


Annotations

25-1030.01. Garnishee; application; notice; manner of service.

Upon filing an application for determination of liability of the garnishee, the plaintiff shall give the garnishee and the defendant in the original action notice of the filing thereof and of the time and place of trial thereon. The notice shall be given within such time and in such manner as the court shall direct.

Source:Laws 1951, c. 67, § 8, p. 205.


Annotations

25-1030.02. Garnishee; trial; liability; judgment.

The trial of the determination of the liability of the garnishee shall be conducted the same as in a civil action. If it shall appear upon the trial of the liability of the garnishee that the garnishee was (1) indebted to the defendant, or (2) had any property or credits of the defendant, in his possession or under his control at the time of being served with the notice of garnishment, he shall be liable to the plaintiff, in case judgment is finally recovered by plaintiff against the defendant, to the full amount thereof, or to the amount of such indebtedness or property held by the garnishee. The plaintiff in such event may have a judgment against the garnishee (1) for the amount of money due from the garnishee to the defendant in the original action, or (2) for the delivery to the sheriff or to the clerk of the court of any property in the garnishee's hands belonging to the defendant in the original action within a time to be fixed by the court, or for the value of the same as fixed in the judgment if not delivered within the time fixed.

Source:Laws 1951, c. 67, § 9, p. 205.


Annotations

25-1030.03. Garnishment; ownership of property; intervention; trial.

Any person claiming ownership of any money or property sought to be reached in the possession or under the control of the garnishee as the property of the defendant in the original action may intervene in the garnishment proceedings by a suitable pleading and set up facts showing that the debt or the property with which it is sought to charge the garnishee is the property of such intervenor. The defendant in the original action may by a suitable pleading filed in the garnishment proceedings set up facts showing that the debt or the property with which it is sought to charge the garnishee is (1) exempt from execution, or (2) for any other reason is not liable for plaintiff's claim. If issue on such intervention or on such pleading by the defendant in the original action is joined by the plaintiff, it shall be tried with the issues as to the garnishee's liability. If such debt or property or any part thereof is found to be the property of the intervenor, or is found to be exempt or not liable, the garnishee shall be discharged as to that part which is exempt or not liable.

Source:Laws 1951, c. 67, § 10, p. 206.


Annotations

25-1031. Garnishee; final judgment; when rendered; effect; discharge by delivery of property; costs.

Final judgment shall not be rendered against the garnishee until the action against the defendant in the original action has been determined. If in such action judgment be rendered for the defendant, the garnishee shall be discharged and recover costs. If the plaintiff shall recover against the defendant in the original action, and the garnishee shall deliver up all the property, money, and credits of the defendant in his possession and pay all the money from him due as the court may order, the garnishee shall be discharged, and the costs of the proceedings against him shall be paid out of the property and money so surrendered, or as the court may think right and proper.

Source:R.S.1867, Code § 226, p. 431; R.S.1913, § 7760; C.S.1922, § 8704; C.S.1929, § 20-1031; R.S.1943, § 25-1031; Laws 1951, c. 67, § 11, p. 206.


Annotations

25-1031.01. Garnishment; judgment; effect.

The judgment in the garnishment action shall be conclusive between the garnishee, plaintiff, defendant, and any intervenor.

Source:Laws 1951, c. 67, § 12, p. 206.


Annotations

25-1031.02. Garnishment; costs; fee.

(1) The party seeking garnishment shall advance the costs of transcript and docketing the matter in the district court.

(2) The district court shall be entitled to the following fee in civil matters: For issuance of a writ of execution, restitution, garnishment, attachment, and examination in aid of execution, a fee of five dollars each.

Source:Laws 1955, c. 86, § 3, p. 259; Laws 1988, LB 1030, § 16.


25-1032. Attachment; judgment for defendant; effect; return of property or proceeds.

If judgment is rendered in the action for the defendant, the attachment shall be discharged, and the property attached, or its proceeds, shall be returned to him.

Source:R.S.1867, Code § 227, p. 431; R.S.1913, § 7761; C.S.1922, § 8705; C.S.1929, § 20-1032; R.S.1943, § 25-1032.


Annotations

25-1033. Attachment; judgment for plaintiff; how satisfied; return of surplus.

If judgment is rendered for the plaintiff, it shall be satisfied as follows: So much of the property remaining in the hands of the officer, after applying the money arising from the sale of perishable property, and so much of the personal property and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there is not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue in all respects as in other cases. Any surplus of the attached property, or its proceeds, shall be returned to the defendant.

Source:R.S.1867, Code § 228, p. 431; R.S.1913, § 7762; C.S.1922, § 8706; C.S.1929, § 20-1033; R.S.1943, § 25-1033.


Annotations

25-1034. Attached property; delivery to sheriff; power of court to compel.

The court may compel the delivery to the sheriff, for sale, of any of the attached property for which an undertaking may have been given, and may proceed summarily on such undertaking to enforce the delivery of the property or the payment of such sum as may be due upon the undertaking, by rules and attachments, as in cases of contempt.

Source:R.S.1867, Code § 229, p. 431; R.S.1913, § 7763; C.S.1922, § 8707; C.S.1929, § 20-1034; R.S.1943, § 25-1034.


25-1035. Attached property out of sheriff's possession; repossession; power of court to order.

The court may order the sheriff to repossess himself, for the purpose of selling it, of any of the attached property which may have passed out of his hands without having been sold or converted into money; and the sheriff shall, under such order, have the same power to take the property as he would have under an order of attachment.

Source:R.S.1867, Code § 230, p. 431; R.S.1913, § 7764; C.S.1922, § 8708; C.S.1929, § 20-1035; R.S.1943, § 25-1035.


25-1036. Attachment; intervening claimants; proceeding to ascertain title.

If personal property which has been attached be claimed by any person other than the defendant, it shall be the duty of the officer to have the validity of such claim tried, and such proceedings must be had thereon, with the like effect, as in case the property had been seized upon execution and claimed by a third person.

Source:R.S.1867, Code § 231, p. 431; R.S.1913, § 7765; C.S.1922, § 8709; C.S.1929, § 20-1036; R.S.1943, § 25-1036.


Annotations

25-1037. Several attachments; same property; reference.

Where several attachments are executed on the same property, or the same persons are made garnishees, the court, on the motion of any of the plaintiffs, may order a reference to ascertain and report the amounts and priorities of the several attachments.

Source:R.S.1867, Code § 232, p. 432; R.S.1913, § 7766; C.S.1922, § 8710; C.S.1929, § 20-1037; R.S.1943, § 25-1037.


Annotations

25-1038. Repealed. Laws 1980, LB 597, § 18.

25-1039. Attachment; additional security; right of defendant to require.

The defendant may, at any time before judgment, after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court is satisfied that the surety in the plaintiff's undertaking has removed from this state, or is not sufficient for the amount thereof, it may vacate the order of attachment and direct restitution of any property taken under it, unless in a reasonable time, to be fixed by the court, sufficient security is given by the plaintiff.

Source:R.S.1867, Code § 234, p. 432; R.S.1913, § 7768; C.S.1922, § 8712; C.S.1929, § 20-1039; R.S.1943, § 25-1039.


25-1040. Attachment; motion to discharge; right of defendant.

The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or part of the property attached.

Source:R.S.1867, Code § 235, p. 432; R.S.1913, § 7769; C.S.1922, § 8713; C.S.1929, § 20-1040; R.S.1943, § 25-1040.


Annotations

25-1041. Attachment; motion to discharge; evidence.

The hearing of the motion to discharge shall be a trial of the issue of the existence, at the time of the issuance of the order, of one or more of the grounds of attachment listed in section 25-1001, as alleged in the affidavits under section 25-1002. The court shall discharge an order of attachment unless the plaintiff proves by a preponderance of the evidence one of the grounds alleged under section 25-1001 upon which the writ was issued. The court may order that the evidence at the hearing of the motion to discharge be presented, in whole or part, by affidavits in the form prescribed by section 25-1334, for affidavits in support of or in opposition to a motion for summary judgment. In all cases in which the court does not so order, evidence presented at the hearing of the motion to discharge shall be governed by the Nebraska Evidence Rules.

Source:R.S.1867, Code § 236, p. 432; R.S.1913, § 7770; C.S.1922, § 8714; C.S.1929, § 20-1041; R.S.1943, § 25-1041; Laws 1980, LB 597, § 13.


Cross References

Annotations

25-1042. Attachment; county court; procedure.

Sections 25-1039 to 25-1041 shall apply to actions before county courts.

Source:Laws 1875, § 1, p. 44; R.S.1913, § 7771; C.S.1922, § 8715; C.S.1929, § 20-1042; R.S.1943, § 25-1042; Laws 1972, LB 1032, § 126.


25-1043. Attachment of lands in another county; copy to be filed with register of deeds.

Whenever an attachment shall issue to any other county than the one in which the action is brought, and any lands shall be attached by virtue thereof, it shall be the duty of the officer attaching such property to make out a true copy of the order of attachment, and file the same in the office of the register of deeds of the county where the lands so attached are situated. He shall also certify upon the copy of said order of attachment that the same is a true copy of the original writ received by him, and he shall also endorse thereon the description of the property attached, and the time when the same was attached, under and by virtue of the original order of attachment.

Source:G.S.1873, c. 57, § 1, p. 714; R.S.1913, § 7772; C.S.1922, § 8716; C.S.1929, § 20-1043; R.S.1943, § 25-1043.


25-1044. Attachment of lands in another county; writ and certificate; recording constitutes notice.

It shall be the duty of the register of deeds of the county, when the copy of the order of attachment has been filed as provided in section 25-1043, to record the same in the miscellaneous record, together with the certificate of the officers heretofore mentioned, and such copy of said orders of attachment and certificates so filed and recorded shall be sufficient notice to subsequent purchasers of the land so attached.

Source:G.S.1873, c. 57, § 2, p. 714; R.S.1913, § 7773; C.S.1922, § 8717; C.S.1929, § 20-1044; R.S.1943, § 25-1044.


25-1045. Attachment; discharge; duty of clerk to certify; duty of register of deeds to record.

If the order of attachment is discharged it shall be the duty of the clerk of the court in which the action is brought to certify that fact, together with the time when the order was discharged, to the register of deeds in whose office the copy of the order has been recorded as aforesaid, whereupon such register shall file such certificate and write across the record of such copy the word "discharged," and also the time of discharge as shown in the certificate.

Source:G.S.1873, c. 57, § 3, p. 714; R.S.1913, § 7774; C.S.1922, § 8718; C.S.1929, § 20-1045; R.S.1943, § 25-1045.


25-1046. Attachment; copy of order; taxation as costs.

The officer, for making out said copy of the same, shall receive such compensation as is now allowed by law for similar services, to be taxed in the costs, unless otherwise ordered by the court.

Source:G.S.1873, c. 57, § 4, p. 714; R.S.1913, § 7775; C.S.1922, § 8719; C.S.1929, § 20-1046; R.S.1943, § 25-1046.


25-1047. Attachment; order of discharge; when and how superseded.

When an order is made discharging an attachment and any party affected thereby shall except to such order, the court or judge shall thereupon fix a time, not exceeding twenty days thereafter, within which such party may file his petition in error or perfect an appeal from such order during which time the attached property shall remain in the hands of the sheriff or other officer; Provided, no such appeal or petition in error shall operate to supersede such order unless such appellant or plaintiff in error shall, within the time so fixed, execute to the adverse party an undertaking, with sureties to be approved by the clerk or judge and conditioned for the payment of all damage which may be sustained by such adverse party, in consequence of such appeal or petition in error, in the event that such attachment be finally discharged as having been unlawfully issued.

Source:G.S.1873, c. 57, § 1, p. 715; R.S.1913, § 7776; C.S.1922, § 8720; C.S.1929, § 20-1047; R.S.1943, § 25-1047.


Annotations

25-1048. Attachment; order of discharge; appeal; original action unaffected.

The original action shall proceed to trial and judgment in every other respect as though no writ of error has been prosecuted.

Source:G.S.1873, c. 57, § 2, p. 715; R.S.1913, § 7777; C.S.1922, § 8721; C.S.1929, § 20-1048; R.S.1943, § 25-1048.


Annotations

25-1049. Attachment; claims not due; action authorized; when.

A creditor may bring an action on a claim before it is due and have an attachment against the property of the debtor (1) where a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; (2) where he is about to make such sale, conveyance, or disposition of his property with such fraudulent intent; or (3) where he is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors, or of hindering and delaying them in the collection of their debts.

Source:R.S.1867, Code § 237, p. 432; R.S.1913, § 7778; C.S.1922, § 8722; C.S.1922, § 20-1049; R.S.1943, § 25-1049.


Annotations

25-1050. Attachment; claims not due; procedure; affidavit required.

The attachment authorized by section 25-1049 may be granted by the court in which the action is brought, or by a judge thereof, or by the county judge of the county; but before such action shall be brought or such attachment shall be granted, an affidavit or affidavits shall be presented to the judge; such affidavits shall be based upon personal knowledge and shall state specific facts demonstrating (1) that plaintiff will possess a valid cause of action against the defendant when the claim becomes due, (2) the date when the claim shall be due, (3) the amount of the claim, (4) a description of the existence and approximate value of any of defendant's property known to the plaintiff to be within the jurisdiction of the court and not exempt from attachment, and (5) the existence of any one of the grounds for attachment enumerated in section 25-1049.

Source:R.S.1867, Code § 238, p. 433; R.S.1913, § 7779; C.S.1922, § 8723; C.S.1929, § 20-1050; R.S.1943, § 25-1050; Laws 1980, LB 597, § 14.


Annotations

25-1051. Attachment order in actions on claims not due; refusal requires dismissal of action.

If the court or judge refuse to grant an order of attachment as provided in sections 25-1049 and 25-1050, the action shall be dismissed, but without prejudice to a future action; and in all such actions application for an attachment must be made.

Source:R.S.1867, Code § 239, p. 433; R.S.1913, § 7780; C.S.1922, § 8724; C.S.1929, § 20-1051; R.S.1943, § 25-1051.


Annotations

25-1052. Attachment order in actions on claims not due; amount; specification.

The order of the court or judge granting the attachment shall specify the amount for which it is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim and the probable costs of the action.

Source:R.S.1867, Code § 240, p. 433; R.S.1913, § 7781; C.S.1922, § 8725; C.S.1929, § 20-1052; R.S.1943, § 25-1052.


Annotations

25-1053. Repealed. Laws 1980, LB 597, § 18.

25-1054. Attachment in actions on claims not due; judgment; when rendered.

The plaintiff in such action shall not have judgment on his claim before it becomes due, and the proceedings on attachment may be conducted without delay.

Source:R.S.1867, Code § 242, p. 433; R.S.1913, § 7783; C.S.1922, § 8727; C.S.1929, § 20-1054; R.S.1943, § 25-1054.


Annotations

25-1055. Attachment in actions on claims not due; procedure in general.

The proceedings under general attachment provided for in sections 25-1004 to 25-1041, so far as they are applicable, shall regulate the attachments authorized on claims before due.

Source:R.S.1867, Code § 243, p. 433; R.S.1913, § 7784; R.S.1922, § 8728; C.S.1929, § 20-1055; R.S.1943, § 25-1055.


Annotations

25-1056. Garnishment in aid of execution; when issued; procedure; continuing lien; when invalid; priority; financial institution; service of process; designated location; Department of Banking and Finance; immunity.

(1) In all cases when a judgment has been entered by any court of record and the judgment creditor or his or her agent or attorney has filed an affidavit setting forth the amount due on the judgment, interest, and costs in the office of the clerk of the court where the judgment has been entered and that he or she has good reason to and does believe that any person, partnership, limited liability company, or corporation, naming him, her, or it, has property of and is indebted to the judgment debtor, the clerk shall issue a summons which shall set forth the amount due on the judgment, interest, and costs as shown in the affidavit and require such person, partnership, limited liability company, or corporation, as garnishee, to answer written interrogatories to be furnished by the plaintiff and to be attached to such summons respecting the matters set forth in section 25-1026. The summons shall be returnable within ten days from the date of its issuance and shall require the garnishee to answer within ten days from the date of service upon him or her. Except when wages are involved, the garnishee shall hold the property of every description and the credits of the defendant in his or her possession or under his or her control at the time of the service of the summons and interrogatories until the further order of the court. If the only property in the possession or under the control of the garnishee at the time of the service of the summons and interrogatories is credits of the defendant and the amount of such credits is not in dispute by the garnishee, then such garnishee shall only hold the credits of the defendant in his or her possession or under his or her control at the time of the service of the summons and interrogatories to the extent of the amount of the judgment, interest, and costs set forth in the summons until further order of the court. When wages are involved, the garnishee shall pay to the employee all disposable earnings exempted from garnishment by statute, and any disposable earnings remaining after such payment shall be retained by the garnishee until further order of the court. Thereafter, the service of the summons and interrogatories and all further proceedings shall be in all respects the same as is provided for in sections 25-1011 and 25-1026 to 25-1031.01 unless inconsistent with this section.

(2) If it appears from the answer of the garnishee that the judgment debtor was an employee of the garnishee, that the garnishee otherwise owed earnings to the judgment debtor when the garnishment order was served, or that earnings would be owed within sixty days thereafter and there is not a successful written objection to the order or the answer of the garnishee filed, on application by the judgment creditor, the court shall order that the nonexempt earnings, if any, withheld by the garnishee after service of the order be transferred to the court for delivery to the judgment creditor who is entitled to such earnings. Except for garnishments in support of a person, the payments may be made payable to the judgment creditor or assignee and shall be forwarded to the issuing court to record the judgment payment prior to the court delivering the payment to the judgment creditor or assignee. The court shall, upon application of the judgment creditor, further order that the garnishment is a continuing lien against the nonexempt earnings of the judgment debtor. An order of continuing lien on nonexempt earnings entered pursuant to this section shall require the garnishee to continue to withhold the nonexempt earnings of the judgment debtor for as long as the continuing lien remains in effect.

Beginning with the pay period during which the writ was served and while the continuing lien remains in effect, the garnishee shall deliver the nonexempt earnings to the court from which the garnishment was issued for each pay period or on a monthly basis if the garnishee so desires and shall deliver to the judgment debtor his or her exempt earnings for each pay period.

(3) A continuing lien ordered pursuant to this section shall be invalid and shall have no force and effect upon the occurrence of any of the following:

(a) The underlying judgment is satisfied in full or vacated or expires;

(b) The judgment debtor leaves the garnishee's employ for more than sixty days;

(c) The judgment creditor releases the garnishment;

(d) The proceedings are stayed by a court of competent jurisdiction, including the United States Bankruptcy Court;

(e) The judgment debtor has not earned any nonexempt earnings for at least sixty days;

(f) The court orders that the garnishment be quashed; or

(g) Ninety days have expired since service of the writ. The judgment creditor may extend the lien for a second ninety-day period by filing with the court a notice of extension during the fifteen days immediately prior to the expiration of the initial lien, and the continuing lien in favor of the initial judgment creditor shall continue for a second ninety-day period.

(4)(a) To determine priority, garnishments and liens shall rank according to time of service.

(b) Garnishments, liens, and wage assignments which are not for the support of a person shall be inferior to wage assignments for the support of a person. Garnishments which are not for the support of a person and liens shall be inferior to garnishments for the support of a person.

(5) Only one order of continuing lien against earnings due the judgment debtor shall be in effect at one time. If an employee's wages are already being garnished pursuant to a continuing lien at the time of service of a garnishment upon an employer, the answer to garnishment interrogatories shall include such information along with the date of termination of such continuing lien and the title of the case from which such garnishment is issued. Except as provided in subsection (4) of this section, a continuing lien obtained pursuant to this section shall have priority over any subsequent garnishment or wage assignment.

(6)(a) In any case involving service of a garnishment summons on a financial institution where deposits are received within this state, the financial institution shall (i) if its main chartered office is located in this state, designate its main chartered office for the service of summons or (ii) if its main chartered office is located in another state, designate any one of its offices or branches or its agent for service of process in this state for service of summons. The designation of a main chartered office or an office or branch or the agent for service of process under this subdivision shall be made by filing a notice of designation with the Department of Banking and Finance, shall contain the physical address of the main chartered office or the office or branch or the agent for service of process designated, and shall be effective upon placement on the department web site. The department shall post the list of such designated main chartered offices and offices or branches or agents for service of process on its web site for access by the public. A financial institution may modify or revoke a designation made under this subdivision by filing the modification or revocation with the department. The modification or revocation shall be effective when the department's web site has been updated to reflect the modification or revocation, except that the judgment creditor may rely upon the designation that was modified or revoked during the thirty-day period following the effective date of the modification or revocation if the summons is timely served upon the financial institution. The department shall update its web site to reflect a filing by a financial institution pursuant to this subdivision or a modification or revocation filed by a financial institution pursuant to this subdivision within ten business days following the filing by the financial institution. The department web site shall reflect the date its online records for each financial institution have most recently been updated.

(b) If a financial institution where deposits are received has designated its main chartered office or one of its offices or branches or its agent for service of process for the service of summons, service made on the main chartered office or the office or branch or the agent for service of process so designated shall be valid and effective as to any property or credits of the defendant in the possession or control of the main chartered office of the financial institution in this state and any of the financial institution offices or branches located within this state. If service of summons is not made on the main chartered office or the office or branch or the agent for service of process designated by the financial institution, but instead is made at another office or branch of the financial institution located in Nebraska, the financial institution, in its discretion, and without violating any obligation to its customer, may elect to treat the service of summons as valid and effective as to any property or credits of the defendant in the possession or control of the main chartered office of the financial institution in this state and any of the financial institution offices or branches located within this state. In the absence of such an election, the financial institution shall file a statement with the interrogatories that the summons was not served at the financial institution's designated location for receiving service of summons and, therefore, was not processed, and shall provide the address at which the financial institution is to receive service of summons.

(c) For purposes of this subsection, financial institution means a bank, savings bank, building and loan association, savings and loan association, or credit union whether chartered by the United States, the Department of Banking and Finance, or a foreign state agency.

(d) The notice of designation, modification, or revocation shall be made by a financial institution on forms prescribed by the department.

(e) The Department of Banking and Finance, any employee of the department, or any person acting on behalf of the department shall be immune from civil and criminal liability for any acts or omissions which occur as a result of the requirements of this subsection.

Source:R.S.1867, Code § 244, p. 433; R.S.1913, § 7785; C.S.1922, § 8729; C.S.1929, § 20-1056; R.S.1943, § 25-1056; Laws 1953, c. 68, § 1, p. 219; Laws 1955, c. 85, § 3, p. 255; Laws 1959, c. 101, § 4, p. 423; Laws 1972, LB 1032, § 127; Laws 1974, LB 737, § 1; Laws 1980, LB 597, § 15; Laws 1988, LB 1030, § 17; Laws 1993, LB 121, § 169; Laws 1995, LB 420, § 1; Laws 1996, LB 1048, § 1; Laws 1997, LB 771, § 1; Laws 2015, LB195, § 2.    


Annotations

25-1057. Repealed. Laws 1953, c. 68, § 2.

25-1058. Repealed. Laws 1953, c. 68, § 2.

25-1059. Repealed. Laws 1953, c. 68, § 2.

25-1060. Repealed. Laws 1953, c. 68, § 2.

25-1061. Repealed. Laws 1953, c. 68, § 2.

25-1062. Injunction, defined.

The injunction provided by this code is a command to refrain from a particular act. It may be the final judgment in an action or may be allowed as a provisional remedy, subject to the provisions of sections 25-1062 to 25-1080, and when so allowed it shall be by order. The writ of injunction is abolished.

Source:R.S.1867, Code § 250, p. 435; R.S.1913, § 7791; C.S.1922, § 8735; C.S.1929, § 20-1062; Laws 1941, c. 29, § 2, p. 133; C.S.Supp.,1941, § 20-1062; R.S.1943, § 25-1062.


Annotations

25-1062.01. Director of Natural Resources, defined; notice to appropriator; how given.

(1) The words Director of Natural Resources as used in this section and in sections 25-1064, 25-2159, and 25-2160 mean the Director of Natural Resources, State of Nebraska, his or her successor in office, or any agent, servant, employee, or officer of the State of Nebraska, now or hereafter exercising any powers or duties with respect to the administration of the irrigation water in the state, who may be a party in any court of the state in an action when the relief demanded involves the delivery of irrigation water.

(2) Whenever notice by either registered or certified letter to an appropriator is required in such sections, the address of the appropriator shall be that recorded in the office of the Department of Natural Resources under section 46-230.

Source:Laws 1941, c. 29, § 1, p. 133; C.S.Supp.,1941, § 20-10,111; R.S.1943, § 25-1062.01; Laws 1957, c. 242, § 14, p. 828; Laws 1957, c. 365, § 1, p. 1232; Laws 1986, LB 516, § 10; Laws 2000, LB 900, § 65.    


25-1063. Temporary injunction; issuance; grounds.

When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief or any part thereof consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce great or irreparable injury to the plaintiff, or when, during the litigation, it appears that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act, subject to the limitations of sections 25-1062 to 25-1080. It may also be granted in any case specially authorized by statute.

Source:R.S.1867, Code § 251, p. 435; R.S.1913, § 7792; C.S.1922, § 8736; C.S.1929, § 20-1063; Laws 1941, c. 29, § 3, p. 134; C.S.Supp.,1941, § 20-1063; R.S.1943, § 25-1063; Laws 2002, LB 876, § 20.    


Annotations

25-1064. Temporary injunctions and restraining orders; courts and judges empowered to issue; conditions; temporary restraining order granted without notice; requirements; actions involving irrigation water; notice, how given.

(1) The injunction may be granted at the time of commencing the action or at any time afterward before judgment by the Court of Appeals or the Supreme Court or any judge thereof. No restraining order or temporary injunction should be granted at the time of the commencement of the action if the relief demanded involves the delivery of irrigation water and the Director of Natural Resources, as defined in section 25-1062.01, is a party except in accordance with the procedure prescribed in subsection (5) of this section.

(2) No temporary injunction may be granted without notice to the adverse party.

(3) Any judge of the district court, except when the relief demanded involves the delivery of irrigation water and the director is a party, may grant a temporary restraining order without notice to the adverse party or his or her attorney only if (a) it clearly appears from specific facts shown by affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his or her attorney can be heard in opposition and (b) the applicant or his or her attorney certifies to the court in writing the efforts, if any, which have been made to give such notice and the reasons supporting the applicant's claim that such notice shall not be required.

Every temporary restraining order granted without notice shall: (i) Be endorsed with the date and hour of issuance; (ii) be filed immediately in the office of the clerk of the district court and entered of record; (iii) define the injury and state why the injury is irreparable and why the order was granted without notice; and (iv) expire by its terms within such time after entry, not to exceed ten days, as the court fixes unless within such fixed time period the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents to an extension for a longer period. The reasons for the extension shall be entered of record. If a temporary restraining order is granted without notice, the motion for a temporary injunction shall be heard at the earliest possible time in the district court and shall take precedence over all matters except older matters of the same character. When the motion for a temporary injunction comes up for hearing, the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction, and if he or she does not do so, the district court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to such party as the district court may prescribe, the adverse party may appear and move for the dissolution or modification of the order, and in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

(4) In the absence from the county of the district judges, any judge of the county court, except when the relief demanded involves the delivery of irrigation water and the director is a party, may grant a temporary restraining order without notice to the adverse party or his or her attorney only if (a) it clearly appears from specific facts shown by affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his or her attorney can be heard in opposition and (b) the applicant or his or her attorney certifies to the court in writing the efforts, if any, which have been made to give such notice and the reasons supporting the applicant's claim that such notice shall not be required. The judge of the county court shall direct that reasonable notice be given to the party against whom the temporary restraining order is issued to attend at a specified time or place before the district court or any judge thereof to show cause why a temporary injunction should not be issued.

Every temporary restraining order granted without notice shall: (i) Be endorsed with the date and hour of issuance; (ii) be filed immediately in the office of the clerk of the district court and entered of record; (iii) define the injury and state why the injury is irreparable and why the order was granted without notice; and (iv) expire by its terms within such time after entry, not to exceed ten days, as the judge of the county court fixes unless within such fixed time period the order, for good cause shown, is extended by the district court for a like period or unless the party against whom the order is directed consents to an extension for a longer period. The reasons for the extension shall be entered of record.

(5) The Supreme Court or any judge thereof, the Court of Appeals or any judge thereof, the district court or any judge thereof, or a judge of the county court, if and when he or she has jurisdiction, shall have no power, when the relief demanded involves the delivery of irrigation water and the director is a party, to grant a restraining order or temporary injunction at the time of the commencement of the action, except when notice by either registered or certified letter has been mailed seventy-two hours prior to the time of hearing to the director and the division supervisor in the water division created by section 61-212 in which the action is brought and, in the manner provided in section 25-1062.01, to all appropriators whose rights to the delivery of irrigation water might in any manner be affected, of the time and place of the hearing. At the hearing on the restraining order or temporary injunction, the director, appropriators, or riparian owners shall be entitled to be heard, in person or by their attorney or attorneys, on the question of whether the restraining order should be granted and, if so, in what amount the bond or undertaking is to be fixed.

(6) Any person, natural or artificial, injured or likely to be injured by the granting of a restraining order may intervene in the action at any stage of the proceedings and become a party to the litigation if it involves the delivery of irrigation water and the director is a party.

Source:R.S.1867, Code § 252, p. 435; Laws 1913, c. 65, § 1, p. 198; R.S.1913, § 7793; C.S.1922, § 8737; C.S.1929, § 20-1064; Laws 1941, c. 29, § 4, p. 134; C.S.Supp.,1941, § 20-1064; R.S.1943, § 25-1064; Laws 1955, c. 87, § 1, p. 260; Laws 1957, c. 242, § 15, p. 828; Laws 1957, c. 365, § 2, p. 1232; Laws 1986, LB 516, § 11; Laws 1991, LB 732, § 44; Laws 2000, LB 900, § 66.    


Annotations

25-1064.01. Order granting an injunction; restraining order; requirements.

Every order granting an injunction and every restraining order shall: (1) Set forth the reasons for its issuance; (2) be specific in terms; (3) describe in reasonable detail, and not by reference to the pleading or other document, the act or acts sought to be restrained; and (4) be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Source:Laws 1986, LB 516, § 12; Laws 2002, LB 876, § 21.    


25-1064.02. Sections, how construed.

Sections 25-1062.01 and 25-1064 to 25-1064.02 shall in no way limit a person's right to an injunction or temporary restraining order if such remedies are specifically authorized by statute.

Source:Laws 1986, LB 516, § 13.


25-1065. Repealed. Laws 1986, LB 516, § 17.

25-1066. Repealed. Laws 1986, LB 516, § 17.

25-1067. Injunctions; security.

No injunction, unless provided by special statute, shall operate until the party obtaining the same shall give an undertaking, executed by one or more sufficient sureties, who shall justify as provided in sections 25-2222 and 25-2223. The undertaking shall be approved by the clerk of the court granting such injunction, in an amount to be fixed by the court or judge allowing the same, to secure to the party enjoined the damages he may sustain, if it be finally decided that the injunction ought not to have been granted.

Source:R.S.1867, Code § 255, p. 435; R.S.1913, § 7796; C.S.1922, § 8740; C.S.1929, § 20-1067; Laws 1941, c. 29, § 7, p. 136; C.S.Supp.,1941, § 20-1067; R.S.1943, § 25-1067.


Cross References

Annotations

25-1068. Service of order of injunction; when not required.

The order of injunction shall be addressed to the party enjoined, shall state the injunction, and shall be issued by the clerk. Where the injunction is allowed at the commencement of the action, the clerk shall endorse upon the summons injunction allowed, and it shall not be necessary to issue the order of injunction; nor shall it be necessary to issue the same where notice of the application therefor has been given to the party enjoined. The service of the summons so endorsed, or the notice of the application for an injunction, shall be notice of its allowance.

Source:R.S.1867, Code § 256, p. 436; R.S.1913, § 7797; C.S.1922, § 8741; C.S.1929, § 20-1068; R.S.1943, § 25-1068.


Cross References

Annotations

25-1069. Service of order; return.

Where the injunction is allowed during litigation and without notice of the application therefor, the order of injunction shall be issued, and the sheriff shall forthwith serve the same upon each party enjoined, in the manner prescribed for serving a summons, and make return thereof without delay.

Source:R.S.1867, Code § 257, p. 436; R.S.1913, § 7798; C.S.1922, § 8742; C.S.1929, § 20-1069; R.S.1943, § 25-1069.


25-1070. Injunctions; when binding.

An injunction binds the party from the time he has notice thereof and the undertaking required of the applicant therefor is executed.

Source:R.S.1867, Code § 258, p. 436; R.S.1913, § 7799; C.S.1922, § 8743; C.S.1929, § 20-1070; R.S.1943, § 25-1070.


25-1071. Injunctions not granted; when.

No injunction shall be granted by a judge, after a motion therefor has been overruled on the merits of the application by this court; and where it has been refused by the court in which the action is brought, or a judge thereof, it shall not be granted to the same applicant by a court of inferior jurisdiction or any judge thereof.

Source:R.S.1867, Code § 259, p. 436; R.S.1913, § 7800; C.S.1922, § 8744; C.S.1929, § 20-1071; R.S.1943, § 25-1071.


25-1072. Enforcement; disobedience; punishment.

An injunction granted by a judge may be enforced as the act of the court. Disobedience of an injunction may be punished as a contempt by the court, or by any judge who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied by affidavit of the breach of the injunction, against the party guilty of the same; and he may be required, in the discretion of the court or judge, to pay a fine not exceeding two hundred dollars, for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply with such requirements, or be otherwise legally discharged.

Source:R.S.1867, Code § 260, p. 436; R.S.1913, § 7801; C.S.1922, § 8745; C.S.1929, § 20-1072; R.S.1943, § 25-1072.


Annotations

25-1073. Motion for additional security; vacation.

A party enjoined may, at any time before judgment, upon reasonable notice to the party who has obtained the injunction, move the court for additional security; and if it appears that the surety in the undertaking has removed from the state, or is insufficient, the court may vacate the injunction, unless in a reasonable time sufficient security be given.

Source:R.S.1867, Code § 261, p. 436; R.S.1913, § 7802; C.S.1922, § 8746; C.S.1929, § 20-1073; R.S.1943, § 25-1073.


25-1074. Hearings; affidavits.

On the hearing of an application for an injunction, each party may read affidavits. All affidavits shall be filed.

Source:R.S.1867, Code § 262, p. 437; R.S.1913, § 7803; C.S.1922, § 8747; C.S.1929, § 20-1074; R.S.1943, § 25-1074.


Annotations

25-1075. Injunction without notice; vacation; modification; notice.

If the injunction is granted without notice, the defendant, at any time before the trial, may apply, upon notice, to the court in which the action is brought or any judge thereof, to vacate or modify the same. The application may be made upon the complaint or petition and affidavits upon which the injunction is granted, or upon affidavits on the part of the party enjoined, with or without answer. The order of the judge allowing, dissolving, or modifying an injunction shall be returned to the office of the clerk of the court in which the action is brought and recorded and obeyed as if made by the court.

Source:R.S.1867, Code § 263, p. 437; R.S.1913, § 7804; C.S.1922, § 8748; C.S.1929, § 20-1075; R.S.1943, § 25-1075; Laws 2002, LB 876, § 22.    


Annotations

25-1076. Injunction without notice; showing and counter-showing; affidavits.

If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the injunction was granted.

Source:R.S.1867, Code § 264, p. 437; R.S.1913, § 7805; C.S.1922, § 8749; C.S.1929, § 20-1076; R.S.1943, § 25-1076.


Annotations

25-1077. Counterclaim; injunction upon.

A defendant may obtain an injunction upon an answer in the nature of a counterclaim. He shall proceed in the manner prescribed in sections 25-1062 to 25-1080.

Source:R.S.1867, Code § 265, p. 437; R.S.1913, § 7806; C.S.1922, § 8750; C.S.1929, § 20-1077; R.S.1943, § 25-1077.


25-1078. Temporary injunction; modification; dissolution; supersedeas bond.

In case of the dissolution or modification by any court, or any judge at chambers, of any temporary order of injunction which has been or may hereafter be granted, the court or judge so dissolving or modifying said order of injunction shall, at the same time, fix a reasonable sum as the amount of a supersedeas bond, which the person or persons applying for said injunction may give, and prevent the doing of the act or acts, the commission of which was, or may be sought to be restrained by the injunction so dissolved and modified.

Source:Laws 1889, c. 27, § 1, p. 373; R.S.1913, § 7807; C.S.1922, § 8751; C.S.1929, § 20-1078; R.S.1943, § 25-1078.


Annotations

25-1079. Temporary injunction; modification; dissolution; supersedeas bond; when executed; form; contents.

Such supersedeas bond shall be executed on or before twenty days from the time of the order dissolving or modifying such injunction, shall be signed by one or more sufficient sureties to be approved by the clerk of the court, and shall be conditioned that the party or parties who obtained such injunction shall pay to the defendant, or defendants, all damages, which he or they shall sustain by reason of said injunction, if it be finally decided that such injunction ought not to have been granted.

Source:Laws 1889, c. 27, § 2, p. 374; R.S.1913, § 7808; C.S.1922, § 8752; C.S.1929, § 20-1079; R.S.1943, § 25-1079.


Annotations

25-1080. Temporary injunction; modification; dissolution; supersedeas bond; effect.

Such supersedeas bond shall stay the doing of the act or acts sought to be restrained by the suit, and continue such injunction in force until the case is heard and finally determined by the judgment, decree or final order of the court in term time.

Source:Laws 1889, c. 27, § 3, p. 374; R.S.1913, § 7809; C.S.1922, § 8753; C.S.1929, § 20-1080; R.S.1943, § 25-1080.


25-1081. Appointment of receiver; grounds.

A receiver may be appointed by the district court (1) in an action by a vendor to vacate a fraudulent purchase of property, by a creditor to subject any property or fund to his or her claim, or between partners, limited liability company members, or others jointly owning or interested in any property or fund on the application of any party to the suit when the property or fund is in danger of being lost, removed, or materially injured, (2) in an action for the foreclosure of a mortgage or in an action to foreclose a trust deed as a mortgage when the mortgaged property or property subject to the trust deed is in danger of being lost, removed, or materially injured or is probably insufficient to discharge the mortgage debt secured by the mortgage or trust deed, (3) in connection with the exercise of the power of sale under a trust deed and following the filing of a notice of default under the Nebraska Trust Deeds Act when the property subject to the trust deed is in danger of being lost, removed, or materially injured or is probably insufficient to discharge the debt secured by the trust deed, (4) in an action brought pursuant to section 52-1705 to enforce a written assignment of rents provision contained in any agreement and the agreement provides for the appointment of a receiver, (5) in any other case in which a mortgagor or trustor has agreed in writing to the appointment of a receiver, (6) after judgment or decree to carry the judgment into execution, to dispose of the property according to the decree or judgment, or to preserve it during the pendency of an appeal, (7) in all cases provided for by special statutes, and (8) in all other cases when receivers have heretofore been appointed by the usages of courts of equity.

Source:R.S.1867, Code § 266, p. 437; R.S.1913, § 7810; C.S.1922, § 8754; C.S.1929, § 20-1081; R.S. 1943, § 25-1081; Laws 1991, LB 732, § 45; Laws 1993, LB 121, § 170; Laws 1994, LB 884, § 53; Laws 2007, LB99, § 1.    


Cross References

Annotations

25-1082. Notice of application for appointment; service.

No receiver shall be appointed except in a suit actually commenced and pending, and after notice to all parties to be affected thereby, of the time and place of the application, the names of the proposed receiver, and of his or her proposed sureties, and of the proposed sureties of the applicant. Such notice shall state upon what papers the application is based, and be served at least five days before the proposed hearing upon the adverse party in the manner provided for service of a summons in a civil action or upon the adverse party's attorney in the manner provided for service of a notice on an attorney.

Source:R.S.1867, Code § 267, p. 438; R.S.1913, § 7811; C.S.1922, § 8755; Laws 1927, c. 49, § 1, p. 199; C.S.1929, § 20-1082; Laws 1939, c. 17, § 1, p. 96; C.S.Supp.,1941, § 20-1082; R.S.1943, § 25-1082; Laws 1983, LB 447, § 40.


Annotations

25-1083. Property; possession by sheriff; when authorized; restitution.

Should the delay occasioned by the giving of the notice provided for in section 25-1082 be hazardous to the rights of any party, the court or judge may, by order, direct the sheriff of the county in which such action is pending to take temporary possession of the property, and shall appoint an early day for the hearing of the application, and if at such hearing the application is refused, restitution shall be made of the property to the party from whom the same was taken.

Source:R.S.1867, Code § 268, p. 438; R.S.1913, § 7812; C.S.1922, § 8756; C.S.1929, § 20-1083; R.S.1943, § 25-1083.


Annotations

25-1084. Applicants for receiver; bonds required; contents; filing.

Every order appointing a receiver shall require the applicant to give a good and sufficient bond, conditioned to pay all damages which the other parties to the suit or any of them may sustain by reason of the appointment of a receiver, in case it shall be finally decided that the order ought not to have been granted, and shall also require the receiver to give a bond conditioned to faithfully discharge his duties as receiver and obey all orders of the court. The bonds shall each run to the defendant and all adverse parties in interest, shall be for the use of any party to the suit, shall be in a penal sum to be fixed by the court, but not, however, to be in excess of a sum equal to double the value of the property in question, shall be executed by one surety where such surety is an incorporated surety company authorized by the laws of this state to transact such business, and by two or more sureties where such sureties are natural persons, to be approved by the court or judge making the appointment, and shall be filed in the office of the clerk of the district court; nor shall the same be considered executed until they are so filed.

Source:R.S.1867, Code § 269, p. 438; Laws 1875, § 1, p. 36; Laws 1897, c. 89, § 1, p. 370; R.S.1913, § 7813; C.S.1922, § 8757; Laws 1923, c. 102, § 1, p. 257; C.S.1929, § 20-1084; R.S.1943, § 25-1084.


Cross References

Annotations

25-1085. Application; form; content.

If a complainant desires the appointment of a receiver at the commencement of the action, the complainant shall request such appointment in the complaint. If the occasion for a receiver arises while the suit is pending, the application shall be made by a motion setting forth the facts and circumstances making such appointment necessary or proper.

Source:R.S.1867, Code § 270, p. 438; R.S.1913, § 7814; C.S.1922, § 8758; C.S.1929, § 20-1085; R.S.1943, § 25-1085; Laws 2002, LB 876, § 23.    


Annotations

25-1086. Qualifications of receiver; sureties; objections; nomination by other parties.

Any party to the suit may, upon the hearing of the application, show, by affidavit or otherwise, objections to the proposed sureties and to the proposed receiver, and what is the value of the property to be taken possession of, and that a receiver ought not to be appointed. He may also nominate a person to be receiver, giving at the same time the names of his proposed sureties. No person shall be appointed receiver who is party, solicitor, counsel, or in any manner interested in the suit.

Source:R.S.1867, Code § 271, p. 439; R.S.1913, § 7815; C.S.1922, § 8759; C.S.1929, § 20-1086; R.S.1943, § 25-1086.


Annotations

25-1087. Order of appointment; special directions.

Every order appointing a receiver shall contain special directions in respect to his powers and duties, and upon application of any party to the suit, after due notice thereof, such further directions may be made in that behalf by the court or judge as may in the further progress of the cause become proper.

Source:R.S.1867, Code § 272, p. 439; R.S.1913, § 7816; C.S.1922, § 8760; C.S.1929, § 20-1087; R.S.1943, § 25-1087.


Annotations

25-1088. Receivers; extent of representation.

Every receiver shall be considered the receiver of any party to the suit, and no others.

Source:R.S.1867, Code § 273, p. 439; R.S.1913, § 7817; C.S.1922, § 8761; C.S.1929, § 20-1088; R.S.1943, § 25-1088.


Annotations

25-1089. Appointment of receiver without notice; void; suspension of order, when.

Every order appointing a receiver without the notice provided for herein shall be void, and every such order heretofore made, under which the appointee has not possessed himself of the property in question, shall be suspended until an order shall have been made and the bonds executed and filed in accordance with the provisions of sections 25-1081 to 25-1092.

Source:R.S.1867, Code § 274, p. 439; R.S.1913, § 7818; C.S.1922, § 8762; C.S.1929, § 20-1089; R.S.1943, § 25-1089.


Annotations

25-1090. Inconclusive decree; appointment of master; disposition of property; orders; appeal.

When a decree is rendered in a suit in which a receiver has been appointed and such decree does not finally determine the rights of the parties, any one of them may apply to the court for the possession of the property and proceeds thereof in the receiver's hands. If such application is resisted, the matter may be referred to a master to take and report to the court the testimony of the parties. Upon the filing of the report, the court shall, by its order, award the possession of the property and the proceeds thereof to the party entitled thereto, and thereupon the receiver shall surrender the property and the proceeds thereof to such party. All orders appointing receivers, giving them further directions, and disposing of the property may be appealed to the Court of Appeals in the same manner as final orders and decrees.

Source:R.S.1867, Code § 275, p. 439; R.S.1913, § 7819; C.S.1922, § 8763; C.S.1929, § 20-1090; R.S.1943, § 25-1090; Laws 1991, LB 732, § 46.


Cross References

Annotations

25-1091. Receivers; disobedience of orders; punishment; sheriff may act.

Whenever, in the exercise of their authority, the court or judge shall have ordered the deposit or delivery of money or other things, and the order is disobeyed, the court or judge, in addition to punishing such disobedience as for contempt, may make an order requiring the sheriff to take the money or thing, and deposit or deliver it, in conformity with the direction of the court or judge.

Source:R.S.1867, Code § 276, p. 439; Laws 1899, c. 82, § 1, p. 337; R.S.1913, § 7820; C.S.1922, § 8764; C.S.1929, § 20-1091; R.S.1943, § 25-1091.


25-1092. Receivers; compensation.

Receivers shall receive for their services such compensation as the court may award, subject to the following restrictions:

(1) Receivers appointed for the purpose of preserving and protecting property pending litigation, or for the purpose of continuing the business of the debtor or corporation pending litigation, or when financially embarrassed, may be awarded a salary or lump sum;

(2) Receivers appointed for the purpose of winding up the affairs of a debtor or corporation, reducing the assets to cash and distributing them, shall be awarded as compensation for such services a percentage upon the cash received and properly accounted for by them, which percentage may be increased where extraordinary services have been performed, and correspondingly reduced where the services have not been meritoriously performed.

Source:Laws 1899, c. 33, § 1, p. 169; R.S.1913, § 7821; C.S.1922, § 8765; C.S.1929, § 20-1092; R.S.1943, § 25-1092.


Annotations

25-1093. Replevin; delivery of property; notice, when required.

The plaintiff in an action to recover the possession of specific personal property may, at the commencement of the suit, or any time before answer, request the delivery of such property as provided by sections 25-1093 to 25-1098, 25-10,109, and 25-10,110. In a replevin action under the Grain Warehouse Act, notice shall be given as provided in section 88-547.02.

Source:R.S.1867, Code § 181, p. 421; R.S.1913, § 7822; C.S.1922, § 8766; C.S.1929, § 20-1093; R.S.1943, § 25-1093; Laws 1973, LB 474, § 1; Laws 2005, LB 492, § 1.    


Cross References

Annotations

25-1093.01. Request delivery of property; affidavit; contents.

The plaintiff may request the delivery of property as specified in section 25-1093 by filing in the office of the clerk of the court in which the action is filed an affidavit of the plaintiff or his or her agent or attorney showing (1) a description of the property claimed, (2) that the plaintiff is the owner of the property or has a special ownership or interest therein, stating the facts in relation thereto, and that he or she is entitled to the possession of the same, (3) that the property is wrongfully detained by the defendant, and (4) that it was not taken in execution on any order or judgment against such plaintiff, or for the payment of any fine, tax, or amercement assessed against him or her or by virtue of an order of delivery issued under Chapter 25, or any other mesne or final process issued against him or her, except that such affidavit may omit the first and last clause of this subdivision and, in lieu thereof, show that the property was taken on execution on a judgment or order other than an order of delivery in replevin, and that the same is exempt from such execution or attachment under the laws of this state. The provisions of Chapter 25, article 10, shall extend to and apply as well to proceedings in replevin had before county courts. Attached to such affidavit shall be a specific request for the delivery of the property and the issuance of an order by the court to that effect.

Source:Laws 1973, LB 474, § 2; Laws 1984, LB 13, § 38.


Annotations

25-1093.02. Affidavit; filing; service; temporary order; effect; hearing; when.

Upon the filing of such affidavit and request for delivery, if the defendant with full knowledge of the allegations and effect of the plaintiff's request agrees that such delivery in replevin be had, he may execute a voluntary, intelligent, and knowing waiver under oath of his rights to notice and hearing, in which event the court shall order that all further proceedings shall be suspended and the property being replevied delivered to the plaintiff forthwith, otherwise upon the filing of such affidavit and request for delivery required by section 25-1093.01, the court shall issue a temporary order addressed to the defendant that he shall hold the property described in the affidavit in his possession, unimpaired and unencumbered, and in all respects in the same state and condition as at the time of receipt of the order, until further order of the court. The temporary order shall also notify such defendant that if he fails to comply with the temporary order he shall be subject to the full contempt powers of the court. Attached to such temporary order shall be a notice that a hearing will be had and specifying the date, time, and place of such hearing, at which hearing will be determined plaintiff's right to possession of the goods described in plaintiff's affidavit and request for delivery, pending final determination of the merits. At such hearing the defendant shall be required to show cause why the possession of the goods should not be delivered to the plaintiff. Unless otherwise determined and ordered by the court, the date of such hearing shall be seven days after service of the order upon the defendant, but in no event later than fourteen days after service.

Source:Laws 1973, LB 474, § 3; Laws 1976, LB 859, § 1.


Annotations

25-1093.03. Affidavit; temporary order; notice; hearing.

If filed at the commencement of suit, such affidavit and request for delivery and such temporary order containing the notice of hearing shall be served by the sheriff or other officer with the summons. If filed after the commencement of suit but before answer, they shall be served separately from the summons, but as soon after their filing and issuance as practicable.

Source:Laws 1973, LB 474, § 4.


25-1093.04. Order for delivery of property.

If the court finds at such hearing that the plaintiff is entitled to possession of the property, it shall order the clerk to issue an order for delivery of the property to the plaintiff, and deliver such order for delivery to the sheriff or other officer to be served and returned according to sections 25-1096 and 25-1097. The order of the court required by this section shall conform to the content requirements of section 25-1094.

Source:Laws 1973, LB 474, § 5.


25-1094. Order for delivery; contents.

An order for the delivery of personal property to the plaintiff shall be made by the clerk of the court in which the action is brought only upon the filing in his office of an order of the court showing (1) a description of the property claimed; (2) that the plaintiff has raised a bona fide issue as to whether he is the owner of the property, or whether he has a special ownership or interest therein, but that it appears sufficiently probable to the court that the plaintiff will prevail on the merits; and (3) that there is a bona fide issue as to whether the property is wrongfully detained by the defendant and that the plaintiff is entitled to the immediate delivery of the property.

Source:R.S.1867, Code § 182, p. 421; Laws 1877, § 1, p. 9; R.S.1913, § 7823; C.S.1922, § 8767; C.S.1929, § 20-1094; R.S.1943, § 25-1094; Laws 1972, LB 1032, § 128; Laws 1973, LB 474, § 6.


Annotations

25-1095. Order for delivery; contents.

The order for the delivery of the property to the plaintiff shall be addressed and delivered to the sheriff. It shall state the names of the parties, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order on a day to be named therein.

Source:R.S.1867, Code § 183, p. 422; R.S.1913, § 7824; C.S.1922, § 8768; C.S.1929, § 20-1095; R.S.1943, § 25-1095.


Annotations

25-1096. Order for delivery; when returnable.

The return day for the order of delivery shall be twenty days after its issuance unless a later date is specified in the order of delivery, in which case the return date shall be the date specified in the order of delivery.

Source:R.S.1867, Code § 184, p. 422; R.S.1913, § 7825; C.S.1922, § 8769; C.S.1929, § 20-1096; R.S.1943, § 25-1096; Laws 1973, LB 474, § 7; Laws 2012, LB734, § 1.    


25-1097. Order for delivery; how executed.

The sheriff shall execute the order of delivery by taking the property therein mentioned. He shall also deliver a copy of the order of delivery to the person charged with the unlawful detention of the property or leave such copy at his usual place of residence.

Source:R.S.1867, Code § 185, p. 422; R.S.1913, § 7826; C.S.1922, § 8770; C.S.1929, § 20-1097; R.S.1943, § 25-1097; Laws 1973, LB 474, § 8.


Annotations

25-1098. Delivery of property to plaintiff; bond; contents; return; redelivery bond.

The sheriff, or other officer, shall not deliver to the plaintiff, his agent or attorney, the property so taken, until there has been executed by one or more sufficient sureties of the plaintiff a written undertaking to the defendant, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him, and return the property to the defendant, in case judgment for a return of such property is rendered against him. The undertaking shall be returned with the order.

If, before the actual delivery to the plaintiff, the defendant executes within twenty-four hours from the time of the levy, by one or more sufficient sureties a written undertaking to the plaintiff, in at least double the value of the property, to the effect that the defendant shall duly defend the action and pay all costs and damages which may be awarded against him, and deliver the property to the plaintiff, in case judgment for delivery of such property is rendered against him, the undertaking shall be returned with the order by the officer, who shall return the property to the defendant.

Source:R.S.1867, Code § 186, p. 422; G.S.1873, c. 57, § 186, p. 553; R.S.1913, § 7827; C.S.1922, § 8771; C.S.1929, § 20-1098; R.S.1943, § 25-1098; Laws 1965, c. 119, § 1, p. 452.


Annotations

25-1099. Bond; amount; determination; appraisal.

For the purpose of fixing the amount of the undertaking, the value of the property taken shall be ascertained by the oath of two or more responsible persons, whom the sheriff or other officer shall swear truly to assess the value thereof.

Source:R.S.1867, Code § 187, p. 422; R.S.1913, § 7828; C.S.1922, § 8772; C.S.1929, § 20-1099; R.S.1943, § 25-1099.


Annotations

25-10,100. Failure to furnish bond; duty and liability of officer; return of property to defendant.

If the undertaking required by section 25-1098 is not given within twenty-four hours from the taking of the property under said order, the sheriff or other officer shall return the property to the defendant. If the sheriff or other officer delivers any property so taken to the plaintiff, his agent or attorney, or keeps the same from the defendant, without taking such security within the time aforesaid, or if he takes insufficient security, he shall be liable to the defendant in damages.

Source:R.S.1867, Code § 188, p. 422; R.S.1913, § 7829; C.S.1922, § 8773; C.S.1929, § 20-10,100; R.S.1943, § 25-10,100.


Annotations

25-10,101. Bond; objections to sureties; waiver; liability of officer.

The defendant may, within twenty-four hours from the time the undertaking referred to in section 25-10,100 is given by the plaintiff, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he must be deemed to have waived all objections to them. When the defendant excepts, the sureties must justify upon notice as in the case of bail on arrest. The sheriff or other officer shall be responsible for the sufficiency of the sureties, until the objection to them is waived as above provided or until they justify. The property shall be delivered to the plaintiff when the undertaking required by section 25-1098 has been given.

Source:R.S.1867, Code § 189, p. 423; R.S.1913, § 7830; C.S.1922, § 8774; C.S.1929, § 20-10,101; R.S.1943, § 25-10,101.


Annotations

25-10,102. Judgment against plaintiff upon dismissal; failure of plaintiff to prosecute; procedure.

If the property has been delivered to the plaintiff, and he suffers a voluntary or involuntary dismissal, or if he otherwise fails to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then, and in either case, they shall assess such damages for the defendant as are right and proper; for which, with costs of suit, the court shall render judgment for the defendant.

Source:R.S.1867, Code § 190, p. 423; R.S.1913, § 7831; C.S.1922, § 8775; C.S.1929, § 20-10,102; R.S.1943, § 25-10,102; Laws 1959, c. 103, § 1, p. 427.


Annotations

25-10,103. Verdict for defendant; further findings required; damages.

In all cases, when the property has been delivered to the plaintiff, where the jury shall find upon issue joined for the defendant, they shall also find whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant; for which with costs of suit, the court shall render judgment for the defendant.

Source:R.S.1867, Code § 191, p. 423; R.S.1913, § 7832; C.S.1922, § 8776; C.S.1929, § 20-10,103; R.S.1943, § 25-10,103.


Annotations

25-10,104. Judgment for defendant; irregularity in process or jurisdictional defect; restoration of status quo.

(1) The judgment in the cases mentioned in sections 25-10,102 and 25-10,103 shall be for a return of the property or the value thereof in case a return cannot be had, or the value of the possession of the same, and for damages for withholding said property and costs of suit.

(2) In all instances wherein a trial of the merits of an action is prevented by reason of irregularity in process or for any jurisdictional reason, the court upon a proper showing shall be empowered to place the parties in status quo by ordering a return of the property replevied. A defendant whose property has been replevied shall be entitled to seek such relief without submitting his person to the jurisdiction of the court.

Source:G.S.1873, c. 57, § 7, p. 713; R.S.1913, § 7833; C.S.1922, § 8777; C.S.1929, § 20-10,104; R.S.1943, § 25-10,104; Laws 1959, c. 103, § 2, p. 428.


Annotations

25-10,105. Judgment for plaintiff; damages; costs.

In all cases when the property has been delivered to the plaintiff, where the jury shall find for the plaintiff, on an issue joined, or on inquiry of damages upon a judgment by default, they shall assess adequate damages to the plaintiff for the illegal detention of the property; for which with costs of suit, the court shall render judgment for plaintiff.

Source:R.S.1867, Code § 192, p. 423; R.S.1913, § 7834; C.S.1922, § 8778; C.S.1929, § 20-10,105; R.S.1943, § 25-10,105.


Annotations

25-10,106. Property not taken or returned to defendant; judgment for plaintiff; nature and amount.

When the property claimed has not been taken, or has been returned to the defendant by the sheriff for want of the undertaking required by section 25-1098, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper; but if the property be returned for want of the undertaking required by such section, the plaintiff shall pay all costs made by taking the same.

Source:R.S.1867, Code § 193, p. 423; R.S.1913, § 7835; C.S.1922, § 8779; C.S.1929, § 20-10,106; R.S.1943, § 25-10,106.


Annotations

25-10,107. Order for delivery of property; directed to other counties; successive orders; taxation of costs.

An order may be directed to any other county than the one in which the action is brought, for the delivery of the property claimed. Several orders may issue at the same time, or successively, at the option of the plaintiff; but only one of them shall be taxed in the costs, unless otherwise ordered by the court.

Source:R.S.1867, Code § 194, p. 424; R.S.1913, § 7836; C.S.1922, § 8780; C.S.1929, § 20-10,107; R.S.1943, § 25-10,107.


Annotations

25-10,108. Order of delivery; execution; powers of officer.

The sheriff or other officer, in the execution of the order of delivery, may break open any building or enclosure in which the property claimed, or any part thereof, is concealed; but not until he has been refused an entrance into said building or enclosure and the delivery of the property, after having demanded the same.

Source:R.S.1867, Code § 195, p. 424; R.S.1913, § 7837; C.S.1922, § 8781; C.S.1929, § 20-10,108; R.S.1943, § 25-10,108.


Annotations

25-10,109. Suits on undertakings; when brought.

No suit shall be instituted on the undertaking given under section 25-1098 before an execution issued on a judgment in favor of the plaintiff or defendant in the action shall have been returned, that sufficient property whereon to levy and make the amount of such judgment cannot be found in the county.

Source:R.S.1867, Code § 196, p. 424; R.S.1913, § 7836; C.S.1922, § 8782; C.S.1929, § 20-10,109; R.S.1943, § 25-10,109; Laws 1972, LB 1049, § 4.


Annotations

25-10,110. Order for delivery of property; issuance without court order; effect; taxation of costs.

Any order for the delivery of property issued under section 25-1094 without the order of the court required thereby shall be set aside at the cost of the clerk issuing the same, and such clerk, as well as the plaintiff, shall also be liable in damages to the party injured.

Source:R.S.1867, Code § 197, p. 424; R.S.1913, § 7839; C.S.1922, § 8783; C.S.1929, § 20-10,110; R.S.1943, § 25-10,110; Laws 1973, LB 474, § 9.


Annotations

25-1101. Issues; kinds.

Issues arise on the pleadings where a fact or conclusion of law is maintained by one party and controverted by the other. They are of two kinds: (1) Of law; (2) of fact.

Source:R.S.1867, Code § 277, p. 440; R.S.1913, § 7840; C.S.1922, § 8784; C.S.1929, § 20-1101; R.S.1943, § 25-1101.


Annotations

25-1102. Issue of fact; how formed.

An issue of fact arises upon a material allegation in a pleading that is denied by a responsive pleading or that is considered as denied or avoided because no responsive pleading is required or permitted.

Source:R.S.1867, Code § 278, p. 440; R.S.1913, § 7841; C.S.1922, § 8785; C.S.1929, § 20-1102; R.S.1943, § 25-1102; Laws 2002, LB 876, § 24.    


Annotations

25-1103. Trial, defined.

A trial is a judicial examination of the issues, whether of law or of fact in an action.

Source:R.S.1867, Code § 279, p. 440; R.S.1913, § 7842; C.S.1922, § 8786; C.S.1929, § 20-1103; R.S.1943, § 25-1103.


Annotations

25-1104. Issues; how tried generally; court and jury.

Issues of law must be tried by the court, unless referred as provided in section 25-1129. Issues of fact arising in actions for the recovery of money or of specific real or personal property, shall be tried by a jury unless a jury trial is waived or a reference be ordered as hereinafter provided.

Source:R.S.1867, Code § 280, p. 440; R.S.1913, § 7843; C.S.1922, § 8787; C.S.1929, § 20-1104; R.S.1943, § 25-1104.


Annotations

25-1105. Issues of fact triable to court.

All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury, or referred as provided in this code.

Source:R.S.1867, Code § 281, p. 441; R.S.1913, § 7844; C.S.1922, § 8788; C.S.1929, § 20-1105; R.S.1943, § 25-1105.


Annotations

25-1106. Formation of jury; applicability of law.

The general mode of summoning, impaneling, challenging and swearing the jury is not changed by this code.

Source:R.S.1867, Code § 282, p. 441; R.S.1913, § 7845; C.S.1922, § 8789; C.S.1929, § 20-1106; R.S.1943, § 25-1106.


Annotations

25-1107. Order of trial.

When the jury has been sworn the trial shall proceed in the following order, unless the court for special reasons otherwise directs:

(1) The plaintiff must briefly state his claim, and may briefly state the evidence by which he expects to sustain it.

(2) The defendant must then briefly state his defense, and may briefly state the evidence he expects to offer in support of it.

(3) The party who would be defeated if no evidence were given on either side must first produce his evidence; the adverse party will then produce his evidence.

(4) The parties will then be confined to rebutting evidence unless the court, for good reasons in furtherance of justice, permits them to offer evidence in their original case.

(5) When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be refused or given by the court; which instructions shall be reduced to writing if either party requires it.

(6) The parties may then submit or argue the case to the jury. In argument, the party required first to produce his evidence shall have the opening and conclusion. If several defendants have separate defenses and appear by different counsel, the court shall arrange their relative order.

(7) The court may again charge the jury after the argument is concluded.

Source:R.S.1867, Code § 283, p. 441; R.S.1913, § 7846; C.S.1922, § 8790; C.S.1929, § 20-1107; R.S.1943, § 25-1107.


Annotations

25-1107.01. Jurors; permitted to take notes; use; destruction.

Jurors shall be permitted, but not required, to take notes. The notes may be used during the jury's deliberations, but not preserved for review on appeal. The notes shall be treated as confidential between the juror making them and the other jurors. The trial judge shall ensure the confidentiality of the notes during the course of the trial and the jury's deliberations and shall cause the notes to be destroyed immediately upon return of the verdict.

Source:Laws 2008, LB1014, § 71.    


25-1108. View of property or place by jury.

Whenever, in the opinion of the court, it is proper for the jury to have a view of property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person other than the person so appointed shall speak to them on any subject connected with the trial.

Source:R.S.1867, Code § 284, p. 442; R.S.1913, § 7847; C.S.1922, § 8791; C.S.1929, § 20-1108; R.S.1943, § 25-1108.


Annotations

25-1109. Cause submitted; action and conduct of jury.

When the case is finally submitted to the jury, they may decide in court or retire for deliberation. If they retire, they must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict, or are discharged by the court, subject to the discretion of the court to permit them to separate temporarily at night and at their meals. The officer having them under his charge shall not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court, and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.

Source:R.S.1867, Code § 285, p. 442; R.S.1913, § 7848; C.S.1922, § 8792; C.S.1929, § 20-1109; R.S.1943, § 25-1109.


Annotations

25-1110. Jury; separation; admonition of court.

If the jury are permitted to separate either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with or suffer themselves to be addressed by any other person on the subject of the trial, and that it is their duty not to form or express any opinion thereon until the cause is finally submitted to them.

Source:R.S.1867, Code § 286, p. 442; R.S.1913, § 7849; C.S.1922, § 8793; C.S.1929, § 20-1110; R.S.1943, § 25-1110.


Annotations

25-1111. Instructions by court; requested instructions; requirements.

It shall be the duty of the judges of the several district courts, in all cases, both civil and criminal, to reduce their charges or instructions to the jury to writing, before giving the same to the jury, unless the so giving of the same is waived by the counsel in the case in open court, and so entered in the record of said case; and either party may request instructions to the jury on points of law, which shall be given or refused by the court. All instructions asked shall be in writing.

Source:Laws 1875, § 1, p. 77; R.S.1913, § 7850; C.S.1922, § 8794; C.S.1929, § 20-1111; R.S.1943, § 25-1111.


Annotations

25-1112. Requested instruction; how modified.

If the court refuses a written instruction, as demanded, but gives the same with a modification, which the court may do, such modification shall not be by interlineation or erasure, but shall be well defined and shall follow some such characterizing words as "changed thus," which words shall themselves indicate that the same was refused as demanded.

Source:Laws 1875, § 2, p. 77; R.S.1913, § 7851; C.S.1922, § 8795; C.S.1929, § 20-1112; R.S.1943, § 25-1112.


Annotations

25-1113. Given or refused instructions; how indicated; requirements.

The court must read over all the instructions which it intends to give, and none others, to the jury, and must announce them as given, and shall announce as refused, without reading to the jury, all those which are refused, and must write the words given, or refused, as the case may be, on the margin of each instruction.

Source:Laws 1875, § 3, p. 77; R.S.1913, § 7852; C.S.1922, § 8796; C.S.1929, § 20-1113; R.S.1943, § 25-1113.


Annotations

25-1114. Instructions; paragraphing; numbering; filing; record.

If the giving or refusal be excepted to, the same may be without any stated reason therefor, and all instructions demanded, as well as all instructions given to the jury by the court on its own motion, must be plainly and legibly written in consecutively numbered paragraphs, and filed by the clerk before being read to the jury by the court; and such instructions shall be preserved as part of the record of the cause in which they were given.

Source:Laws 1875, § 4, p. 77; R.S.1913, § 7853; C.S.1922, § 8797; C.S.1929, § 20-1114; R.S.1943, § 25-1114.


Annotations

25-1115. Instructions; oral explanation prohibited; failure to reduce instructions to writing; failure of court to perform duty; effect.

No oral explanation of any instruction authorized by the preceding sections shall, in any case, be allowed, and any instruction or charge, or any portion of a charge or instructions, given to the jury by the court and not reduced to writing, as aforesaid, or a neglect or refusal on the part of the court to perform any duty enjoined by the preceding sections, shall be error in the trial of the case, and sufficient cause for the reversal of the judgment rendered therein.

Source:Laws 1875, § 5, p. 77; R.S.1913, § 7854; C.S.1922, § 8798; C.S.1929, § 20-1115; R.S.1943, § 25-1115.


Annotations

25-1116. Instructions after retirement.

After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court where the information upon the point of law shall be given, and the court may give its recollection as to the testimony on the point in dispute in the presence of or after notice to the parties or their counsel.

Source:R.S.1867, Code § 287, p. 442; R.S.1913, § 7855; C.S.1922, § 8799; C.S.1929, § 20-1116; R.S.1943, § 25-1116.


Annotations

25-1117. Jury; when discharged.

The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.

Source:R.S.1867, Code § 288, p. 442; R.S.1913, § 7856; C.S.1922, § 8800; C.S.1929, § 20-1117; R.S.1943, § 25-1117.


25-1118. Jury; retrial on discharge.

In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again immediately or at a future time as the court may direct.

Source:R.S.1867, Code § 289, p. 442; R.S.1913, § 7857; C.S.1922, § 8801; C.S.1929, § 20-1118; R.S.1943, § 25-1118.


25-1119. Assessment of amount of recovery.

When, by the verdict, either party is entitled to recover money of the adverse party, the jury in their verdict must assess the amount of recovery.

Source:R.S.1867, Code § 295, p. 443; R.S.1913, § 7858; C.S.1922, § 8802; C.S.1929, § 20-1119; R.S.1943, § 25-1119.


Annotations

25-1120. Special verdict; controls general verdict.

When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.

Source:R.S.1867, Code § 294, p. 443; R.S.1913, § 7859; C.S.1922, § 8803; C.S.1929, § 20-1120; R.S.1943, § 25-1120.


Annotations

25-1121. Special verdicts; when allowed; procedure; filing; record.

In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict, in writing, upon all or any of the issues and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact to be stated in writing, and may direct a written finding thereon. The special verdict or finding must be filed with the clerk and entered on the journal.

Source:R.S.1867, Code § 293, p. 443; R.S.1913, § 7860; C.S.1922, § 8804; C.S.1929, § 20-1121; R.S.1943, § 25-1121.


Annotations

25-1122. General and special verdicts; definitions; form of special verdicts generally.

The verdict of a jury is either general or special. A general verdict is that by which they pronounce, generally, upon all or any of the issues either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds the facts only. It must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented that nothing remains to the court but to draw from them conclusions of law.

Source:R.S.1867, Code § 292, p. 443; R.S.1913, § 7861; C.S.1922, § 8805; C.S.1929, § 20-1122; R.S.1943, § 25-1122.


Annotations

25-1123. Verdict; form; correction.

The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete, and the jury discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury before they are discharged, be corrected by the court.

Source:R.S.1867, Code § 291, p. 443; R.S.1913, § 7862; C.S.1922, § 8806; C.S.1929, § 20-1123; R.S.1943, § 25-1123.


Annotations

25-1124. Rendition of verdict; polling of jury.

When the jury have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by the foreman. When the verdict is announced, either party may require the jury to be polled, which is done by the clerk asking each juror if it is his verdict. If any one answer in the negative, the jury must again be sent out for further deliberation.

Source:R.S.1867, Code § 290, p. 443; R.S.1913, § 7863; C.S.1922, § 8807; C.S.1929, § 20-1124; R.S.1943, § 25-1124.


Annotations

25-1125. Five-sixths verdict; jurors to sign.

In all trials in civil actions in any court in this state, a verdict shall be rendered if five-sixths or more of the members of the jury concur therein, and such verdict shall have the same force and effect as though agreed to by all members of the jury; Provided, that a verdict concurred in by less than all members of the jury shall not be rendered until the jury shall have had an opportunity for deliberation and consideration of the case for a period of not less than six hours after the same is submitted to said jury. If a verdict be concurred in by all the members of the jury, the foreman alone may sign it, but if rendered by a less number, such verdict shall be signed by all the jurors who shall agree to the verdict.

Source:Laws 1921, c. 124, § 1, p. 534; C.S.1922, § 8808; C.S.1929, § 20-1125; R.S.1943, § 25-1125.


Annotations

25-1126. Jury trial; waiver.

The trial by jury may be waived by the parties in actions arising on contract, and with assent of the court in other actions (1) by the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney; (2) by written consent, in person or by attorney, filed with the clerk; and (3) by oral consent in open court entered on the journal.

Source:R.S.1867, Code § 296, p. 444; R.S.1913, § 7864; C.S.1922, § 8809; C.S.1929, § 20-1126; R.S.1943, § 25-1126.


Annotations

25-1127. Trial by court; general finding; findings of fact; conclusions of law.

Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except, generally, for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found separately from the conclusions of law.

Source:R.S.1867, Code § 297, p. 444; R.S.1913, § 7865; C.S.1922, § 8810; C.S.1929, § 20-1127; R.S.1943, § 25-1127.


Annotations

25-1128. Trial by the court; provisions for jury trials applicable.

The provisions of this Chapter respecting trials by jury, apply, so far as they are in their nature applicable, to trials by the court.

Source:R.S.1867, Code § 320, p. 448; R.S.1913, § 7866; C.S.1922, § 8811; C.S.1929, § 20-1128; R.S.1943, § 25-1128.


Annotations

25-1129. Reference by consent; when allowed.

All or any of the issues in the action, whether of fact or law, or both, may be referred to a referee upon the written consent of the parties or upon their oral consent in court entered upon the journal.

Source:R.S.1867, Code § 298, p. 444; R.S.1913, § 7867; C.S.1922, § 8812; C.S.1929, § 20-1129; R.S.1943, § 25-1129; Laws 2008, LB1014, § 10.    


Annotations

25-1130. Reference by court order; when allowed.

When the parties do not consent, the court may, upon application of either, or of its own motion, direct a reference in any equity matter to a referee appointed by the court. The court shall direct a reference to a referee only when caseload and time constraints require such reference, and a referee shall not be appointed to conduct any hearing involving an issue of law and not equity that could result in the exercise of the right to a trial before a jury.

Source:R.S.1867, Code § 299, p. 444; R.S.1913, § 7868; C.S.1922, § 8813; C.S.1929, § 20-1130; R.S.1943, § 25-1130; Laws 2008, LB1014, § 11.    


Annotations

25-1131. Trial by referee; procedure; findings of fact; conclusions of law; effect.

The trial before referees is conducted in the same manner as a trial by the court. They have the same power to summon and enforce the attendance of witnesses, to administer all necessary oaths in the trial of the case, and to grant adjournments, as the court upon such trial. They must state the facts found and the conclusions of law, separately, and their decision must be given, and may be excepted to and reviewed in like manner. The report of the referees upon the whole issue stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report has the effect of a special verdict.

Source:R.S.1867, Code § 300, p. 445; R.S.1913, § 7869; C.S.1922, § 8814; C.S.1929, § 20-1131; R.S.1943, § 25-1131.


Annotations