§ 25-1098 — Delivery of property to plaintiff; bond; contents; return; redelivery bond

Nebraska § 25-1098

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

Text

The sheriff, or other officer, shall not deliver to the plaintiff, his agent or attorney, the property so taken, until there has been executed by one or more sufficient sureties of the plaintiff a written undertaking to the defendant, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him, and return the property to the defendant, in case judgment for a return of such property is rendered against him. The undertaking shall be returned with the order.
If, before the actual delivery to the plaintiff, the defendant executes within twenty-four hours from the time of the levy, by one or more sufficient sureties a written undertaking to the plaintiff, in at least double the value of the property, to the effect that the defendant shall duly defend the action and pay all costs and damages which may be awarded against him, and deliver the property to the plaintiff, in case judgment for delivery of such property is rendered against him, the undertaking shall be returned with the order by the officer, who shall return the property to the defendant.

Legislative History

Source: R.S.1867, Code § 186, p. 422; G.S.1873, c. 57, § 186, p. 553; R.S.1913, § 7827; C.S.1922, § 8771; C.S.1929, § 20-1098; R.S.1943, § 25-1098; Laws 1965, c. 119, § 1, p. 452. Annotations: In forma pauperis status does not excuse the litigant from paying the cost of a premium for a replevin bond pursuant to this section. Jacob v. Schlichtman, 261 Neb. 169, 622 N.W.2d 852 (2001). A successful plaintiff in replevin is entitled to recover the reasonable cost of the bond required of it by this section. Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992). Bond runs to defendant alone. Singer Sewing Machine Co. v. Robertson, 87 Neb. 542, 127 N.W. 866 (1910). Bond entitles plaintiff to property pending action. Jenkins v. State, 60 Neb. 205, 82 N.W. 622 (1900). Sureties liable to defendant for whom judgment is rendered. Pilger v. Marder, 55 Neb. 113, 75 N.W. 559 (1898). After obtaining property plaintiff cannot refuse to prosecute and enjoin defendant from prosecuting. Kinkaid v. Hiatt, 24 Neb. 562, 39 N.W. 600 (1888). Bond omitting requirement to "return the property," is binding as to other provisions. Hicklin v. Nebr. City National Bank, 8 Neb. 463, 1 N.W. 135 (1879).