§ 25-1241 — Affidavit, defined

Nebraska § 25-1241

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

Text

An affidavit is a written declaration under oath, made without notice to the adverse party.

Legislative History

Source: R.S.1867, Code § 367, p. 455; R.S.1913, § 7933; C.S.1922, § 8875; C.S.1929, § 20-1241; R.S.1943, § 25-1241. Annotations: In connection with an affidavit, a notary public completes a certificate, known as a jurat, which confirms that the affiant appeared before the notary, attested to the truth of his or her statements, and signed the affidavit. AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (2020). Unless required by statute, an omission in a jurat that an affidavit was sworn to will not be fatal if the fact otherwise appears. AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (2020). An unsigned affidavit which was not offered until the day of the hearing on the summary judgment motion was properly excluded by the trial court. Medley v. Davis, 247 Neb. 611, 529 N.W.2d 58 (1995). Requirement met where affiant acknowledged to authorized official that he was affiant and then signed affidavit in official presence. State v. Howard, 184 Neb. 274, 167 N.W.2d 80 (1969). An affidavit must bear upon its face, by the certificate of the officer before whom it is taken, evidence that it was duly sworn to by the party making the same. Kennedy & Parsons Co. v. Schmidt, 152 Neb. 637, 42 N.W.2d 191 (1950). Document sworn to before an officer not authorized to administer an oath was not an affidavit. Lanning v. Haases, 89 Neb. 19, 130 N.W. 1008 (1911). Affidavit drawn by counsel, in language which is ambiguous, will be construed strongly against party in whose behalf it is offered. Nebraska Moline Plow Co. v. Fuehring, 52 Neb. 541, 72 N.W. 1003 (1897). An affidavit is a declaration in writing sworn to by a party before some person who has authority to administer oaths. Bantley v. Finney, 43 Neb. 794, 62 N.W. 213 (1895). Sworn statements in question-and-answer format, which were created by questioning an affiant under oath in a nonadversarial context and having a court reporter record the exchange, are written declarations within the purview of this section. Thorne v. Omaha Pub. Power Dist., 2 Neb. App. 437, 510 N.W.2d 575 (1994).