§ 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

Nebraska § 25-1010

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

Text

(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 website. The department shall post the list of such designated main chartered offices and offices or branches or agents for service of process on its website 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 website 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 website 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 website 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.

Legislative History

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: 1. Property subject to garnishment 2. Property not subject to garnishment 3. Miscellaneous 1. Property subject to garnishment Liability of insurance company, which has taken charge of defense of insured against action for damages for death of latter's employee, is subject to garnishment if insured is insolvent. Elliott v. AEtna Life Ins. Co., 100 Neb. 833, 161 N.W. 579 (1917). Stock of attachment defendant in domestic corporation may be garnished. Farmers' & Merchants' Nat. Bank v. Mosher, 63 Neb. 130, 88 N.W. 552 (1901). Stock subscription, due and payable, may be garnished by creditor of corporation. Bohrer v. Adair, 61 Neb. 824, 86 N.W. 495 (1901). Garnishee alone can raise defense, and may waive. Sturtevant Co. v. Bohn Sash & Door Co., 59 Neb. 82, 80 N.W. 273 (1899). Mortgagee in possession may be garnished for interest of mortgagor in chattels. Meyer v. Miller, 51 Neb. 620, 71 N.W. 315 (1897). Excess of pledge property may be garnished in hands of pledgee and an accounting for the surplus may be secured. AEtna Ins. Co. v. Bank of Wilcox, 48 Neb. 544, 67 N.W. 449 (1896). Equity of redemption in mortgaged personalty is subject to garnishment, even after condition broken. Burnham v. Doolittle, 14 Neb. 214, 15 N.W. 606 (1883). 2. Property not subject to garnishment Debtor can be garnished only in state where debt is payable, if creditor resides there. Bullard & Hoagland v. Chaffee, 61 Neb. 83, 84 N.W. 604 (1900). Receiver is not subject to garnishment. Veith v. Ress, 60 Neb. 52, 82 N.W. 116 (1900). Money in custody of law, as in hands of clerk for distribution under decree, cannot be garnished. Sturtevant Co. v. Bohn Sash & Door Co., 57 Neb. 671, 78 N.W. 265 (1899). Money held by clerk of court in official capacity is in custody of law. Baker v. Peterson, 57 Neb. 375, 77 N.W. 774 (1899). Order cannot be issued outside county where principal action brought. So. Omaha Nat. Bank v. Farmers & Merchants Nat. Bank of Fremont, 45 Neb. 29, 63 N.W. 128 (1895). "In custody of law" applies only where sheriff must pay money in hand to execution plaintiff. Oppenheimer & Co. v. Marr, 31 Neb. 811, 48 N.W. 818 (1891). Maker of negotiable note cannot be garnished if same has been transferred. Edney v. Willis, 23 Neb. 56, 36 N.W. 300 (1888). Foreign corporation having no property of defendant in state or money payable to him here is not subject to garnishment. Wright v. Chicago, B. & Q. R. R. Co., 19 Neb. 175, 27 N.W. 90 (1886). Under former law, county cannot be garnished. State ex rel. Crawford v. Eberly, 12 Neb. 616, 12 N.W. 96 (1882). Under former law, city is not subject to garnishment proceedings. People ex rel. Spaun v. Mayor of Omaha, 2 Neb. 166 (1873). 3. Miscellaneous In garnishment proceedings under this section, a bond must be given. Insurance Co. of North America v. Maxim's of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965). There is no unconstitutional discrimination between garnishment before judgment and statutory procedure to enforce foreign judgment. Sullivan v. Sullivan, 168 Neb. 850, 97 N.W.2d 348 (1959). Section does not require that written notice which officer leaves with garnishee shall be issued and signed by officer. Crawford State Bank v. Murphy, 142 Neb. 795, 7 N.W.2d 762 (1943). After judgment, summons in garnishment in aid of execution from one county to another is unauthorized. Hinds State Bank v. Loffler, 113 Neb. 110, 202 N.W. 465 (1925). Garnishee must be resident of county; defendant may be nonresident of state. Hargreaves v. Tennis, 63 Neb. 356, 88 N.W. 486 (1901). Affidavit must be filed before notice issues. State ex rel. Austrian, Wise & Co. v. Duncan, 37 Neb. 631, 56 N.W. 214 (1893). Interpleader action in federal court did not preclude maintenance of state court garnishment proceedings. Globe v. Rutgers Fire Ins. Co. v. Viele, 110 F.Supp. 889 (D. Neb. 1958).