25-1001. Attachment; grounds.
The plaintiff, in a civil action for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defendant when the defendant or one of several defendants (1) has absconded with the intent to defraud his or her creditors; (2) has left the county of his or her residence to avoid the service of a summons; (3) so conceals himself or herself that a summons cannot be served upon him or her; (4) is about to remove his or her property, or a part thereof, out of the county in which the property is located, with the intent to defraud his or her creditors; (5) is about to convert his or her property, or a part thereof, into money, for the purpose of placing it beyond the reach of his or her creditors; (6) has property, or rights, in action, which he or she conceals; (7) has assigned, removed or disposed of, or is about to dispose of his or her property, or a part thereof, with the intent to defraud his or her creditors; or (8) fraudulently contracted the debt or incurred the obligation for which suit is about to be or has been brought. The grounds for attachment on a claim before it is due are set forth in section 25-1049.
Source
Annotations
1. Nonresident
2. Absconded
3. Removal of property
4. Fraudulent conveyance
5. Other grounds
6. Commencement of action
1. Nonresident
Property of nonresident may be attached at or after commencement of suit. Federal Farm Mortgage Corp. v. Hughes, 137 Neb. 454, 289 N.W. 866 (1940).
Actual residence and not domicile determines status of debtor. Webb v. Wheeler, 79 Neb. 172, 112 N.W. 369 (1907).
A nonresident defendant cannot attack the jurisdiction of the court upon the sole ground that he is not the owner of the property seized under the writ. Kneeland v. Weigley, 76 Neb. 276, 107 N.W. 574 (1906).
One absent from state on business or pleasure is not nonresident, residence question of fact. Johnson v. May, 49 Neb. 601, 68 N.W. 1032 (1896).
Husband becoming resident here, wife is not nonresident though she remains in former state. Swaney v. Hutchins, 13 Neb. 266, 13 N.W. 282 (1882).
One actually residing here is not nonresident, though permanent legal domicile is elsewhere. Olmstead v. Rivers, 9 Neb. 234, 2 N.W. 366 (1879).
2. Absconded
"Abscond" means to hide, conceal or absent oneself clandestinely to avoid process; not necessary to leave state. Gandy v. Jolly, Swan, Dew & Hardin, 34 Neb. 536, 52 N.W. 376 (1892).
3. Removal of property
Even though property is removed from state, fraudulent intent is essential. Hunter v. Soward, 15 Neb. 215, 18 N.W. 58 (1883).
Removal is immaterial unless coupled with intent to defraud. Steele v. Dodd, 14 Neb. 496, 16 N.W. 909 (1883).
4. Fraudulent conveyance
Creditors may attach property fraudulently conveyed, whether debtor is resident or nonresident. Ainsworth v. Roubal, 74 Neb. 723, 105 N.W. 248 (1905).
Real estate fraudulently conveyed may be attached though record title is in another. Coulson v. Galtsman, 1 Neb. Unof. 502, 96 N.W. 349 (1901).
5. Other grounds
While the U.S. Supreme Court in Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), stated that any given exigency requirement alone would not necessarily protect a statutory attachment scheme from due process challenges, we find that this requirement in our statutes, in conjunction with the bond, affidavit, and discharge hearing provisions, does comply with due process under the 14th Amendment to the U.S. Constitution. Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50 (1997).
Grounds for attachment and garnishment are set out in this section. Insurance Co. of North America v. Maxim's of Nebraska, 178 Neb. 274, 132 N.W.2d 885 (1965).
Statutory provisions relating to garnishment before judgment have no application to registration and enforcement of foreign judgment. Sullivan v. Sullivan, 168 Neb. 850, 97 N.W.2d 348 (1959).
Action for damages for breach of brokerage contract authorized attachment. National Reefer Service, Inc. v. Felman, 164 Neb. 783, 83 N.W.2d 547 (1957).
Mere insolvency of a debtor is not a ground for attachment. Federal Farm Mtg. Corp. v. Mulder, 135 Neb. 133, 280 N.W. 454 (1938).
In absence of fraud or collusion, no garnishable debt arises from contract for personal services paid for in advance. Salyers Auto Co. v. De Vore, 116 Neb. 317, 217 N.W. 94 (1927).
Affidavit is sufficient that sets forth nature of claim, that it is just, the amount plaintiff ought to recover, and existence of statutory grounds for attachment. McDonald v. Marquardt, 52 Neb. 820, 73 N.W. 288 (1897).
Property of insolvent bank before receiver appointed is not exempt from attachment. Arnold v. Weimer, 40 Neb. 216, 58 N.W. 709 (1894).
Action on breach of warranty in deed is for a debt, which may be recovered by attachment. Cheney v. Straube, 35 Neb. 521, 53 N.W. 479 (1892).
Attachment may lie on bond for attachment, though damages are unliquidated. Withers & Kolls v. Brittain, Smith & Co., 35 Neb. 436, 53 N.W. 375 (1892).
Preference of bona fide creditors is not ground for attachment. Britton v. Boyer, 27 Neb. 522, 43 N.W. 356 (1889).
An order of attachment covering a cause of action upon a debt not fraudulently contracted coupled with a cause of action upon a debt fraudulently contracted issued on affidavit alleging fraudulently contracted debt is subject to proper discharge. Meyer v. Evans, 27 Neb. 367, 43 N.W. 109 (1889).
Debt is not fraudulently contracted where damage is due merely to negligence in performing services. Rawlings v. Powers, 25 Neb. 681, 41 N.W. 651 (1889).
Action upon contract express or implied will sustain attachment. Hart v. Barnes, 24 Neb. 782, 40 N.W. 322 (1888).
At least one of causes enumerated must exist; insolvency is insufficient. Walker v. Hagerty, 20 Neb. 482, 30 N.W. 556 (1886).
Debt incurred by false representations is ground for attachment. Young & Co. v. Cooper, 12 Neb. 610, 12 N.W. 91 (1882).
Writ of attachment held unconstitutional because issued on conclusive affidavit, without bond, and without judicial supervision. Aaron Ferer & Sons Co. v. Berman, 431 F.Supp. 847 (D. Neb. 1977).
6. Commencement of action
Neither county judge nor Supreme Court Judges can allow attachment in action pending in district court when district judge is present in county. Ferson v. Armour & Co., 103 Neb. 809, 174 N.W. 425 (1919).
Provision requiring plaintiff in action on claim other than contract to be bona fide resident for six months does not violate federal Constitution. Tanner v. DeVinney, 101 Neb. 46, 161 N.W. 1052 (1917).
Action is deemed commenced, so attachment writ may issue, when petition filed and summons issued with intent to serve same. Johnson v. Larson, 96 Neb. 193, 147 N.W. 476 (1914); Hoagland v. Wilcox, 42 Neb. 138, 60 N.W. 376 (1894); Coffman v. Brandhoeffer, 33 Neb. 279, 50 N.W. 6 (1891).
Attachment is not allowed in proceeding to revive judgment. Farak v. First Nat. Bank of Schuyler, 67 Neb. 463, 93 N.W. 682 (1903).
Affidavit can be filed simultaneously with bringing of suit. McCord, Brady & Co. v. Bowen, 51 Neb. 247, 70 N.W. 950 (1897).
Order of attachment can properly issue before summons is served. Coffman v. Brandhoeffer, 33 Neb. 279, 50 N.W. 6 (1891).
Attachment is a provisional remedy. Shoaff v. Gage, 163 F.Supp. 179 (D. Neb. 1958).