25-1002. Attachment; affidavit of plaintiff; contents.
An order of attachment shall be approved by a judge of any district court or county court only after there has been presented to him or her an affidavit or affidavits based upon personal knowledge (1) that the facts set forth in plaintiff’s complaint which state a valid cause of action and the amount plaintiff is entitled to recover are true, (2) describing the existence and approximate value of any of defendant’s property known to the plaintiff to be subject to the jurisdiction of the court, and (3) stating specific facts demonstrating reasonable cause that one or more of the grounds for an attachment enumerated in section 25-1001 exist.
Source
- R.S.1867, Code § 199, p. 425;
- Laws 1911, c. 168, § 2, p. 545;
- R.S.1913, § 7733;
- C.S.1922, § 8677;
- C.S.1929, § 20-1002;
- R.S.1943, § 25-1002;
- Laws 1980, LB 597, § 2;
- Laws 1984, LB 13, § 36;
- Laws 1991, LB 732, § 42;
- Laws 2002, LB 876, § 19.
Annotations
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1. By whom made
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2. Nature of claim
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3. Miscellaneous
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1. By whom made
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In affidavit for garnishment affiant should swear to the fact that he is plaintiff, agent or attorney. Crawford State Bank v. Murphy, 142 Neb. 795, 7 N.W.2d 762 (1943).
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Affidavit taken before plaintiff’s attorney is bad, but is amendable. Dobry v. Western Mfg. Co., 57 Neb. 228, 77 N.W. 656 (1898).
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Affidavit must distinctly show it was made by natural person. Clements & Co. v. Puckett, 1 Neb. Unof. 356, 95 N.W. 796 (1901).
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2. Nature of claim
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Where attachment is issued for total claimed in five counts, and one count is dismissed, attachment should be dissolved. First Nat. Bank of Greenwood v. Van Doren, 68 Neb. 142, 93 N.W. 1017 (1903).
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Slight variance in amounts claimed in petition and affidavit is immaterial. Grotte v. Nagle, 50 Neb. 363, 69 N.W. 973 (1897).
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Affidavit in language of statute is sufficient. Burnham v. Ramge, 47 Neb. 175, 66 N.W. 277 (1896).
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Where several grounds are joined, should be alleged in conjunctive. Tessier v. Englehart & Co., 18 Neb. 167, 24 N.W. 734 (1885).
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Affidavit need not state cause of action; condensed statement of nature of claim is sufficient. Dorrington v. Minnick, 15 Neb. 397, 19 N.W. 456 (1884).
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Affidavit upon a promissory note described in petition was sufficient. Livingston v. Coe, 4 Neb. 379 (1876).
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Mere statement that defendant is nonresident of this state is sufficient. Citizens State Bank of Wood River v. Porter, 4 Neb. Unof. 73, 93 N.W. 391 (1903).
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3. Miscellaneous
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Affidavit of attachment is required in garnishment proceedings. Insurance Co. of North America v. Maxim’s of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965).
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Burden rests upon plaintiff to sustain requirements of statute. National Reefer Service, Inc. v. Felman, 164 Neb. 783, 83 N.W.2d 547 (1957).
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Amendable even after motion to quash. Clarke Banking Co. v. Wright, 37 Neb. 382, 55 N.W. 1060 (1893).
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Attachment may be obtained pending appeal. Strickler v. Hargis, 34 Neb. 468, 51 N.W. 1039 (1892).
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Plaintiff may supply defects in affidavit for publication of service. Miller v. Eastman, 27 Neb. 408, 43 N.W. 179 (1889).
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One affidavit is sufficient to cover successive orders of attachment. Thompson v. Stetson, 15 Neb. 112, 17 N.W. 368 (1883).
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Omission of venue cannot be attacked in collateral action. Crowell v. Johnson, 2 Neb. 146 (1873).