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.
In a trial pursuant to this section, a garnishee may present evidence to rebut a presumption of indebtedness arising under section 25-1028. Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002).
The garnishee is not liable unless the defendant had a right of action against him for a legal demand due or to become due. In an action to determine the liability of the garnishee, the plaintiff has the burden to establish why the garnishee was liable to the defendant at the time notice of garnishment was served. Gerdes v. Klindt, 253 Neb. 260, 570 N.W.2d 336 (1997).
In determining the liability of a garnishee to a garnishor, the test is whether, as of the time the summons in garnishment was served, the facts would support a recovery by the garnishor's judgment debtor against the garnishee. Davis Erection Co. v. Jorgensen, 248 Neb. 297, 534 N.W.2d 746 (1995).
Material issues of fact in a contested garnishment proceeding are triable by jury unless waived. Christiansen v. Moore, 184 Neb. 818, 172 N.W.2d 620 (1969).
A garnishee is not liable to the plaintiff unless the judgment debtor had a right of action against the garnishee. Lee Sapp Leasing v. Ciao Caffe & Espresso, Inc., 10 Neb. App. 948, 640 N.W.2d 677 (2002).
Federal court would retain fund until state garnishment proceedings were completed. Globe & Rutgers Fire Ins. Co. v. Viele, 110 F.Supp. 889 (D. Neb. 1953).