25-10,101. Bond; objections to sureties; waiver; liability of officer.
The defendant may, within twenty-four hours from the time the undertaking referred to in section 25-10,100 is given by the plaintiff, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he must be deemed to have waived all objections to them. When the defendant excepts, the sureties must justify upon notice as in the case of bail on arrest. The sheriff or other officer shall be responsible for the sufficiency of the sureties, until the objection to them is waived as above provided or until they justify. The property shall be delivered to the plaintiff when the undertaking required by section 25-1098 has been given.
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Annotations
Objection must be made within forty-eight hours from time property was seized. Where objections are waived, officer's good faith in accepting sureties is immaterial. Barton v. Shull, 70 Neb. 324, 97 N.W. 292 (1903).
Subsequent seizure by plaintiff on execution is defense pro tanto. Shull v. Barton, 67 Neb. 311, 93 N.W. 132 (1903).
Where objection is made, officer, failing to have sureties justify, is liable for insufficiency. Barton v. Shull, 62 Neb. 570, 87 N.W. 322 (1901).
Surety, whose want of power to sign is palpable, is not estopped because property was delivered to plaintiff. Sturdevant v. Farmers & Merchants Bank of Rushville, 62 Neb. 472, 87 N.W. 156 (1901).
This section was not rendered inoperative by repeal of legislation providing for release of debtor from arrest. Shull v. Barton, 58 Neb. 741, 79 N.W. 732 (1899).
Constable is liable for taking insufficient bond though objections were not made thereto. Busch v. Moline, Milburn & Stoddard Co., 52 Neb. 83, 71 N.W. 947 (1897).
Provision requiring notice of insufficiency of sureties is inapplicable to action before justice of the peace. Thomas v. Edgerton, 40 Neb. 25, 58 N.W. 551 (1894).
Defendant must except to sufficiency of sureties on replevin bond within time specified. Haynes v. Aultman, Miller & Co., 36 Neb. 257, 54 N.W. 511 (1893).