§ 25-1040 — Attachment; motion to discharge; right of defendant

Nebraska § 25-1040

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

Text

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.

Legislative History

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: 1. Motion to discharge 2. Issues determined 1. Motion to discharge Upon dissolution of an attachment, ordinarily all property should be returned to the defendant. Ceres Fertilizer, Inc. v. Beekman, 209 Neb. 447, 308 N.W.2d 347 (1981). Defendant who has given "forthcoming bond" may move to dissolve attachment, but not if he has given "discharge bond." Burnham-Munger-Root D. G. Co. v. Strahl, 102 Neb. 142, 166 N.W. 266 (1918). Defendant cannot move to discharge attachment on ground that property is not his. Kneeland v. Weigley, 76 Neb. 276, 107 N.W. 574 (1906). Mortgagee of attached property cannot move to discharge. Meyer, Bannerman & Co. v. Keefer, 58 Neb. 220, 78 N.W. 506 (1899). Court cannot hear motion to discharge attachment filed before, but not submitted until after judgment. Herman v. Hayes, 58 Neb. 54, 78 N.W. 365 (1899). Defendant may move to discharge attachment although, prior to levy, he has sold interest therein. Kountze v. Scott, 52 Neb. 460, 72 N.W. 585 (1897). Issue on motion to discharge is not whether defendant owns property attached, but grounds for attachment. South Park Imp. Co. v. Baker, 51 Neb. 392, 70 N.W. 952 (1897). Hearing of motion to discharge in attachment is a trial. Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314 (1896). Subsequent attaching creditors cannot move to dissolve attachment, but may intervene to have priorities determined. Deere, Well & Co. v. Eagle Mfg. Co., 49 Neb. 385, 68 N.W. 504 (1896). Validity of mortgage executed by defendant cannot be determined on motion to discharge attachment. Landauer v. Mack, 43 Neb. 430, 61 N.W. 597 (1895). Filing motion does not excuse failure to plead to petition. Stutzner v. Printz, 43 Neb. 306, 61 N.W. 620 (1895). Motion must be made before judgment; but where submitted, court may rule on same after judgment for plaintiff. Stutzner v. Printz, 43 Neb. 306, 61 N.W. 620 (1895); Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb. 520, 57 N.W. 161 (1893). 2. Issues determined In a hearing under this section, the burden is upon the plaintiff to sustain by a preponderance of the evidence one or more of the grounds on which attachment is claimed. Ceres Fertilizer, Inc. v. Beekman, 205 Neb. 768, 290 N.W.2d 199 (1980). Defendant, by filing answer to merits and motion to dissolve attachment on sufficiency and truthfulness of affidavit, made general appearance which waived defects in original summons. Johnson v. Larson, 96 Neb. 193, 147 N.W. 476 (1914). Debtor alone can question grounds on which attachment is issued. Wagner v. Wolf, 75 Neb. 780, 106 N.W. 1024 (1906). Defendant may contest, though he had disposed of all interest in property. Symns Gro. Co. v. Snow, 58 Neb. 516, 78 N.W. 1066 (1899). Merits of case cannot be adjudicated on hearing to dissolve. McDonald v. Marquardt, 52 Neb. 820, 73 N.W. 288 (1897). Plaintiff is estopped to deny interest of defendant to oppose attachment. Kountze v. Scott, 52 Neb. 460, 72 N.W. 585 (1897); McCord, Brady & Co. v. Bowen, 51 Neb. 247, 70 N.W. 950 (1897). "Reasonable notice" defined. Sterling Mfg. Co. v. Hough, 49 Neb. 618, 68 N.W. 1019 (1896).