§ 25-1244 — Affidavit; when used

Nebraska § 25-1244

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

Text

An affidavit may be used to verify a pleading, to prove the service of a summons, notice or other process, in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion, and in any other case permitted by law.

Legislative History

Source: R.S.1867, Code § 370, p. 455; R.S.1913, § 7936; C.S.1922, § 8878; C.S.1929, § 20-1244; R.S.1943, § 25-1244. Annotations: 1. Scope 2. Admission in evidence 3. Miscellaneous 1. Scope A special appearance, which is preliminary and collateral to determining the merits of an action, is a pleading within this section, and thus, in a hearing on a special appearance, an affidavit may be used to prove or disprove the factual basis for a court's assertion or exercise of personal jurisdiction over a defendant. Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989). In judicial sale confirmation hearing, the trial court has broad discretion in determining if affidavits should be considered. Nebraska State Bank & Trust Co. v. Wright, 213 Neb. 822, 331 N.W.2d 535 (1983). An affidavit may be used to support a special appearance. Erdman v. National Indemnity Co., 180 Neb. 133, 141 N.W.2d 753 (1966). Section applied in application for liquor license. Benson v. Olson, 97 Neb. 29, 149 N.W. 51 (1914). Affidavit may be used to impeach officer's return. Johnson v. Carpenter, 77 Neb. 49, 108 N.W. 161 (1906). Notary public who is an attorney is not permitted to take affidavit of his client for purpose of procuring an attachment. Horkey v. Kendall, 53 Neb. 522, 73 N.W. 953 (1898). Jurat is no part of affidavit; fact that it was sworn to may be shown by parol. Bantley v. Finney, 43 Neb. 794, 62 N.W. 213 (1895). Only affidavits verifying pleadings are part of record proper. Frederick v. Ballard, 16 Neb. 559, 20 N.W. 870 (1884). Affidavit may be used to prove service of process; is no part of bill of exceptions unless presented to trial court. State v. Fawcett, 2 Neb. Unof. 243, 96 N.W. 219 (1901). 2. Admission in evidence A father could use an affidavit in support of his motion to vacate a domestic abuse protection order based on lack of service and lack of personal jurisdiction because the issue of whether he was served with a notice of hearing was collateral and preliminary to whether he was an abuser, as claimed in the underlying petition for the protection order. Paw K. v. Christian G., 315 Neb. 781, 1 N.W.3d 467 (2024). Although an affidavit may be used to prove service of process, such affidavit will not be considered on an appeal of a cause to the Supreme Court unless it was offered in evidence in the trial court and was preserved in and made a part of the bill of exceptions. T. S. McShane Co., Inc., v. Dominion Constr. Co., 203 Neb. 318, 278 N.W.2d 596 (1979). Proof of service by mail must include a receipt signed by the addressee, or other satisfactory evidence of personal delivery, and an affidavit to be considered on appeal must be offered in evidence and preserved in the bill of exceptions. Anderson v. Autocrat Corp., 194 Neb. 278, 231 N.W.2d 560 (1975). Affidavits that nonresident firm of attorneys did not have a usual place of doing business and did not maintain an office in this state were admissible in evidence in support of special appearance. State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439, 20 N.W.2d 232 (1945). Affidavit is not admissible to establish facts material to trial of an issue. Banks v. Metropolitan Life Ins. Co., 142 Neb. 823, 8 N.W.2d 185 (1943). On hearing of an application for a moratory stay after decree of foreclosure of a mortgage, affidavits may be admitted in evidence as to value of mortgaged land. First Trust Co. of Lincoln v. Hickey, 130 Neb. 351, 264 N.W. 888 (1936). Affidavit which fails to disclose county of officer taking is inadmissible. Albers v. Kozeluh, 68 Neb. 522, 94 N.W. 521 (1903), affirmed on rehearing 68 Neb. 529, 97 N.W. 646 (1903). Affidavits may be used at hearing on motion. Hamer v. McKinley-Lanning Loan & Trust Co., 52 Neb. 705, 72 N.W. 1041 (1897). 3. Miscellaneous Affidavit of publication may be impeached by competent proof. Rosewater v. Pinzenscham, 38 Neb. 835, 57 N.W. 563 (1894).