§ 25-1047 — Attachment; order of discharge; when and how superseded

Nebraska § 25-1047

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

Text

When an order is made discharging an attachment and any party affected thereby shall except to such order, the court or judge shall thereupon fix a time, not exceeding twenty days thereafter, within which such party may file his petition in error or perfect an appeal from such order during which time the attached property shall remain in the hands of the sheriff or other officer; Provided, no such appeal or petition in error shall operate to supersede such order unless such appellant or plaintiff in error shall, within the time so fixed, execute to the adverse party an undertaking, with sureties to be approved by the clerk or judge and conditioned for the payment of all damage which may be sustained by such adverse party, in consequence of such appeal or petition in error, in the event that such attachment be finally discharged as having been unlawfully issued.

Legislative History

Source: G.S.1873, c. 57, § 1, p. 715; R.S.1913, § 7776; C.S.1922, § 8720; C.S.1929, § 20-1047; R.S.1943, § 25-1047. Annotations: 1. Bond 2. Miscellaneous 1. Bond This section does not violate due process under the second prong of the test stated in the U.S. Supreme Court case Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), because it allows continued attachment of the property at issue in only those instances in which the plaintiff posts a bond to protect the defendant from any damages suffered in the event that the order of discharge is affirmed on appeal. Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50 (1997). Filing petition and approval of bond in proper time continues lien; summons is not condition to superseding judgment. McDonald v. Bowman, 40 Neb. 269, 58 N.W. 704 (1894). If petition and bond are not filed in twenty days, garnishee is discharged. Lehnoff & Soennichsen v. Fisher, 32 Neb. 107, 48 N.W. 821 (1891). Bond is necessary only to preserve lien. Adams County Bank v. Morgan, 26 Neb. 148, 41 N.W. 993 (1889). Property must be returned at end of twenty days unless petition in error and bond filed. State ex rel. Rieschick v. Cunningham, 9 Neb. 146, 1 N.W. 1011 (1879). Party giving bond cannot deny property belonged to defendants. Metcalf v. Bockoven, 1 Neb. Unof. 822, 96 N.W. 406 (1901). 2. Miscellaneous Motion that attachment writ be quashed, in form of special appearance, and order sustaining motion, entitle plaintiff to appeal. National Surety Co. v. Love, 102 Neb. 633, 168 N.W. 597 (1918); Legan v. Smith, 98 Neb. 682, 154 N.W. 228 (1915). Appeal continues lien and brings ruling of justice discharging attachment to district court for review. Rhodes v. Samuels, 67 Neb. 1, 93 N.W. 148 (1903). Applies to all courts. Osborne v. Canfield, 33 Neb. 330, 50 N.W. 167 (1891). Order overruling motion to discharge is not final order. Wilson v. Shepherd, 15 Neb. 15, 16 N.W. 826 (1883).