§ 25-1030 — Garnishee; answer; controvert; allegations; liability; release

Nebraska § 25-1030

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

Text

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.

Legislative History

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: 1. Proceedings 2. Liability of garnishee 1. Proceedings If a garnishor fails to file an application to determine the garnishee's liability within 20 days of when the garnishee's answers to interrogatories are filed, this section prescribes an unequivocal and mandatory conclusion that the garnishee shall be released and discharged. Huntington v. Pedersen, 294 Neb. 294, 883 N.W.2d 48 (2016). The purpose of this section is to create an expedited garnishment proceeding. ML Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014). This section does not require a garnishee to serve its interrogatory answers or to provide any notice to the garnishor. ML Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014). In a garnishment proceeding, the answers to interrogatories and the application to determine garnishee liability are the only pleadings for disposition of the liability issue. An answer to interrogatories which states that the garnishee has no property, money, or credit due and owing to the judgment debtor acts as a denial of all issues presented by the application to determine garnishee liability filed by the garnishor. Torrison v. Overman, 250 Neb. 164, 549 N.W.2d 124 (1996). If a garnisher is dissatisfied with a garnishee's answer but does not controvert or traverse the answer given, then the garnishee's answer is the only filed pleading containing allegations or statements about property, funds, or credits of a judgment debtor, a solitary pleading which is taken as true and conclusive. NC+ Hybrids v. Growers Seed Assn., 228 Neb. 306, 422 N.W.2d 542 (1988). Where a garnishee in its answer to a garnisher's interrogatories denies liability to the garnisher, and no application for determination of liability is filed, the answer of the garnishee is the solitary pleading before the court and must be taken as true and conclusive. Failure to proceed as required by this section constitutes an abandonment or discontinuance of garnishment proceedings. NC+ Hybrids v. Growers Seed Assn., 219 Neb. 296, 363 N.W.2d 362 (1985). Where answer of garnishee denies owing judgment debtor, remedy is provided by this section by filing of petition for unsatisfactory disclosure. Searcey v. Badgett, 137 Neb. 185, 288 N.W. 537 (1939). Court having obtained jurisdiction, can give relief by rendering money judgment against garnishee if no other remedy is available. Ternes v. Watke, 134 Neb. 798, 279 N.W. 718 (1938). Stock subscription to capital stock of a corporation may be garnished by a creditor of the corporation. Bohrer v. Adair, 61 Neb. 824, 86 N.W. 495 (1901). Finding of court in main action is not conclusive upon rights or liabilities of garnishee. Hollingsworth v. Fitzgerald, 16 Neb. 492, 20 N.W. 836 (1884). If personal judgment against garnishee is desired, plaintiff must proceed under this section. Clark v. Foxworthy, 14 Neb. 241, 15 N.W. 342 (1883). Rights of creditor are no greater than rights of attachment debtor against garnishee. Fitzgerald v. Hollingsworth, 14 Neb. 188, 15 N.W. 345 (1883). Execution need not have been returned unsatisfied in garnishment before judgment. Pope v. Kingman & Co., 2 Neb. Unof. 184, 96 N.W. 519 (1901). 2. Liability of garnishee A garnishee who serves as the plan administrator for a judgment debtor's employee benefit plan cannot be found personally liable for the judgment debtor's debt for failing to disclose the plan pursuant to section 25-1026, because the Employee Retirement Income Security Act bars the assignment or alienation of pension benefits. Florence Lake Investments v. Berg, 312 Neb. 183, 978 N.W.2d 308 (2022). Failure to prove that original answer was false does not defeat action but does relieve from liability for costs. Western Smelting & Refining Co. v. First Nat. Bank of Omaha, 150 Neb. 477, 35 N.W.2d 116 (1948). One obtaining goods under "Bulk Sales Law" was liable as trustee for benefit of creditors of his vendor and liable as garnishee. Damicus v. Kelly, 120 Neb. 588, 234 N.W. 416 (1931). Garnishee, turning property over to defendant pending action, is liable to plaintiff. Farmers & Merchants Nat. Bank v. Mosher, 68 Neb. 713, 94 N.W. 1003 (1903), judgment below affirmed on rehearing, 68 Neb. 724, 100 N.W. 133 (1904). It was duty of bank, when garnished, to set up claimed lien under chattel mortgage. Grainger v. First Nat. Bank of Sutton, 63 Neb. 46, 88 N.W. 121 (1901). Garnishee is not liable unless defendant had right of action against him for legal demand due or to become due. Chicago, B. & Q. R. R. Co. v. Van Cleave, 52 Neb. 67, 71 N.W. 971 (1897). Garnishee is liable if answer is not made in good faith, fully and unequivocally. Work v. Brown, 38 Neb. 498, 56 N.W. 1082 (1893). Failure to prove answer incomplete is no bar to action; but relieves garnishee of costs. Burden is on garnishee to prove right to property. Cornish & Tibbets v. Russell, 32 Neb. 397, 49 N.W. 379 (1891). Garnishee is mere stakeholder; and is protected only when money is paid into court. Russell v. Lau, 30 Neb. 805, 47 N.W. 193 (1890). Insurance company is liable to judgment creditor for unsatisfactory disclosure, when it has issued valid policy, in force and effect, to pay judgment recovered against the judgment debtor. State Farm Mut. Auto. Ins. Co. v. Mackechnie, 114 F.2d 728 (8th Cir. 1940).