State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter25 > 25-1010

25-1010. Attachment; garnishment; affidavit; summons; answer; duties of garnishee; written interrogatories.(1) When an affidavit is filed in a civil action containing the necessary allegations of an affidavit of attachment and in addition allegations that the affiant has good reason to and does believe that any person, partnership, limited liability company, or corporation to be named and within the county where the action is brought has property of the defendant, describing the same, in his or her possession that cannot be levied upon by attachment, a judge of any district court or county court may direct the clerk to issue a summons and order requiring such person, partnership, limited liability company, or corporation as garnishee to answer written interrogatories, to be furnished by the plaintiff and attached to such summons and order, respecting the matters set forth in section 25-1026. All answers must be given in writing but do not need to be verified or given under oath. All answers so given will be deemed to be true and subject to all of the penalties of perjury in the event of willful falsification.(2) The summons and order referred to in subsection (1) of this section shall be returnable within five days from the date of the issuance thereof and shall require the garnishee to answer within ten days from the date of service upon him or her. The order shall inform the garnishee (a) of the penalties that may be imposed in the event of willful falsification, (b) that he or she is obligated to hold the property of every description and the credits of the defendant in his or her possession or under his or her control at the time of the service of the order and the interrogatories until further direction from the court, (c) of his or her ability to obtain discharge from liability to the defendant under section 25-1027, and (d) of the ability of the court to enter judgment against him or her upon failure to answer the interrogatories as provided in section 25-1028. If the answers to the interrogatories identify property of the defendant in the possession of the garnishee, the clerk shall mail to the last-known address of the defendant copies of the garnishment summons and answers to interrogatories within five days after the return of the answers to the interrogatories.(3) Prior to final judgment in an action, no order of garnishment shall issue for wages due from an employer to an employee. SourceR.S.1867, Code § 207, p. 427; R.S.1913, § 7741; C.S.1922, § 8685; C.S.1929, § 20-1010; R.S.1943, § 25-1010; Laws 1951, c. 67, § 1, p. 202; Laws 1955, c. 85, § 1, p. 254; Laws 1959, c. 101, § 1, p. 422; Laws 1971, LB 834, § 1; Laws 1980, LB 597, § 6; Laws 1984, LB 13, § 37; Laws 1991, LB 732, § 43; Laws 1993, LB 121, § 168.Annotations1. Property subject to garnishment2. Property not subject to garnishment3. Miscellaneous1. Property subject to garnishmentLiability of insurance company, which has taken charge of defense of insured against action for damages for death of latter's employee, is subject to garnishment if insured is insolvent. Elliott v. AEtna Life Ins. Co., 100 Neb. 833, 161 N.W. 579 (1917).Stock of attachment defendant in domestic corporation may be garnished. Farmers' & Merchants' Nat. Bank v. Mosher, 63 Neb. 130, 88 N.W. 552 (1901).Stock subscription, due and payable, may be garnished by creditor of corporation. Bohrer v. Adair, 61 Neb. 824, 86 N.W. 495 (1901).Garnishee alone can raise defense, and may waive. Sturtevant Co. v. Bohn Sash & Door Co., 59 Neb. 82, 80 N.W. 273 (1899).Mortgagee in possession may be garnished for interest of mortgagor in chattels. Meyer v. Miller, 51 Neb. 620, 71 N.W. 315 (1897).Excess of pledge property may be garnished in hands of pledgee and an accounting for the surplus may be secured. Aetna Ins. Co. v. Bank of Wilcox, 48 Neb. 544, 67 N.W. 449 (1896).Equity of redemption in mortgaged personalty is subject to garnishment, even after condition broken. Burnham v. Doolittle, 14 Neb. 214, 15 N.W. 606 (1883).2. Property not subject to garnishmentDebtor can be garnished only in state where debt is payable, if creditor resides there. Bullard & Hoagland v. Chaffee, 61 Neb. 83, 84 N.W. 604 (1900).Receiver is not subject to garnishment. Veith v. Ress, 60 Neb. 52, 82 N.W. 116 (1900).Money in custody of law, as in hands of clerk for distribution under decree, cannot be garnished. Sturtevant Co. v. Bohn Sash & Door Co., 57 Neb. 671, 78 N.W. 265 (1899).Money held by clerk of court in official capacity is in custody of law. Baker v. Peterson, 57 Neb. 375, 77 N.W. 774 (1899).Order cannot be issued outside county where principal action brought. So. Omaha Nat. Bank v. Farmers & Merchants Nat. Bank of Fremont, 45 Neb. 29, 63 N.W. 128 (1895)."In custody of law" applies only where sheriff must pay money in hand to execution plaintiff. Oppenheimer & Co. v. Marr, 31 Neb. 811, 48 N.W. 818 (1891).Maker of negotiable note cannot be garnished if same has been transferred. Edney v. Willis, 23 Neb. 56, 36 N.W. 300 (1888).Foreign corporation having no property of defendant in state or money payable to him here is not subject to garnishment. Wright v. Chicago, B. & Q. R. R. Co., 19 Neb. 175, 27 N.W. 90 (1886).County cannot be garnished. State ex rel. Crawford v. Eberly, 12 Neb. 616, 12 N.W. 96 (1882).City is not subject to garnishment proceedings. People ex rel. Spaun v. Mayor of Omaha, 2 Neb. 166 (1873).3. MiscellaneousIn garnishment proceedings under this section, a bond must be given. Insurance Co. of North America v. Maxim's of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965).There is no unconstitutional discrimination between garnishment before judgment and statutory procedure to enforce foreign judgment. Sullivan v. Sullivan, 168 Neb. 850, 97 N.W.2d 348 (1959).Section does not require that written notice which officer leaves with garnishee shall be issued and signed by officer. Crawford State Bank v. Murphy, 142 Neb. 795, 7 N.W.2d 762 (1943).After judgment, summons in garnishment in aid of execution from one county to another is unauthorized. Hinds State Bank v. Loffler, 113 Neb. 110, 202 N.W. 465 (1925).Garnishee must be resident of county; defendant may be nonresident of state. Hargreaves v. Tennis, 63 Neb. 356, 88 N.W. 486 (1901).Affidavit must be filed before notice issues. State ex rel. Austrian, Wise & Co. v. Duncan, 37 Neb. 631, 56 N.W. 214 (1893).Interpleader action in federal court did not preclude maintenance of state court garnishment proceedings. Globe v. Rutgers Fire Ins. Co. v. Viele, 110 F.Supp. 889 (D. Neb. 1958).