§ 25-1003 — Attachment; plaintiff's undertaking; bond; amount

Nebraska § 25-1003

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

(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.

Legislative History

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: State officers and departments, not required to give attachment bond, see section 25-21,216. Annotations: 1. Bond 2. Nonresident or foreign corporation 3. Sureties 4. Miscellaneous 1. Bond Statute required plaintiff to comply with the provisions of the general statute on attachment as to necessary allegations, and with the bond provisions of this section. VonSeggern v. Willman, 244 Neb. 565, 508 N.W.2d 261 (1993). Foreign corporation which has domesticated or obtained certificate of authority to do business is not subject to waiver of bond provisions. Schreiner v. Irby Constr. Co., 184 Neb. 222, 166 N.W.2d 121 (1969). Bond to protect against wrongful attachment is required. Insurance Co. of North America v. Maxim's of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965). In attachment proceedings bond is required in all cases except where defendant is nonresident or foreign corporation, but if defendant fails to assail the validity of the attachment and, for a consideration, agrees that money in hands of garnishee be paid into court to abide judgment, he ratifies and confirms such attachment proceedings though no bond was given. Vanburg v. Mauel, 131 Neb. 685, 269 N.W. 626 (1936). Action on bond and for malicious attachment are not inconsistent remedies. Simons v. Fagen, 62 Neb. 287, 87 N.W. 21 (1901). Bond is valid where plaintiff fails to sign, though he is not liable thereon. Storz v. Finklestein, 50 Neb. 177, 69 N.W. 856 (1897). Attaching creditor need not sign attachment bond. It is sufficient if signed by surety alone. Storz v. Finklestein, 48 Neb. 27, 66 N.W. 1020 (1896). 2. Nonresident or foreign corporation Filing of a bond is not jurisdictional to the right to have an attachment issued against a nonresident defendant for a debt not due. Gutterson v. Meyer, 68 Neb. 767, 94 N.W. 969 (1903). 3. Sureties Surety is not liable if sheriff seizes property of third person. Hopewell v. McGrew, 50 Neb. 789, 70 N.W. 397 (1897). Defendant in action on bond may set off debt due from plaintiff to principal. Field v. Maxwell, 44 Neb. 900, 63 N.W. 62 (1895). Partnership may sign as surety; attorney should not, but bond is valid. Tessier v. Crowley, 17 Neb. 207, 22 N.W. 422 (1885). Surety is liable for all damages sustained until property is returned. McReady v. Rogers, 1 Neb. 124 (1871). 4. Miscellaneous In the absence of malice, an action for the wrongful suing out of an attachment can be maintained alone on the attachment bond. Carlson v. Schroeder, 164 Neb. 443, 82 N.W.2d 416 (1957). Attachment procured in action brought without plaintiff's authority is "wrongfully obtained." Bauer v. Mitchell, 80 Neb. 187, 113 N.W. 986 (1907). On general denial burden is on plaintiff to negative grounds alleged; dissolution of attachment not alone sufficient. Jandt v. Deranleau, 57 Neb. 497, 78 N.W. 22 (1899); Storz v. Finklestein, 50 Neb. 177, 69 N.W. 856 (1897). Obligation of bond is for payment of damages, and liability upon it occurs when the damages accrue. Waller v. Deranleau, 4 Neb. Unof. 497, 94 N.W. 1038 (1903).