25-1041 Attachment; motion to discharge; evidence. - Nebraska Statutes

25-1041. Attachment; motion to discharge; evidence.The hearing of the motion to discharge shall be a trial of the issue of the existence, at the time of the issuance of the order, of one or more of the grounds of attachment listed in section 25-1001, as alleged in the affidavits under section 25-1002. The court shall discharge an order of attachment unless the plaintiff proves by a preponderance of the evidence one of the grounds alleged under section 25-1001 upon which the writ was issued. The court may order that the evidence at the hearing of the motion to discharge be presented, in whole or part, by affidavits in the form prescribed by section 25-1334, for affidavits in support of or in opposition to a motion for summary judgment. In all cases in which the court does not so order, evidence presented at the hearing of the motion to discharge shall be governed by the Nebraska Evidence Rules. SourceR.S.1867, Code § 236, p. 432; R.S.1913, § 7770; C.S.1922, § 8714; C.S.1929, § 20-1041; R.S.1943, § 25-1041; Laws 1980, LB 597, § 13. Cross ReferencesNebraska Evidence Rules, see section 27-1103. AnnotationsWhere grounds are denied, burden is on plaintiff. Malcolm Savings Bank v. Cronin, 80 Neb. 231, 116 N.W. 150 (1908).Affidavits sworn to before attorney in case, if objected to, cannot be used. Malcolm Savings Bank v. Cronin, 80 Neb. 228, 114 N.W. 158 (1907).Whether plaintiff may use oral evidence is discretionary with trial court. Kountze v. Scott, 52 Neb. 460, 72 N.W. 585 (1897).Hearing on motion to discharge is a "trial," for which justice may charge fee. Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314 (1896).Plaintiff must prove grounds to satisfaction of court; may open and close, in discretion of court. Citizens State Bank v. Baird, 42 Neb. 219, 60 N.W. 551 (1894).Affidavits constitute pleadings; plaintiff opens and closes and has burden of proof. Jordan v. Dewey, 40 Neb. 639, 59 N.W. 88 (1894).Findings of trial court should not be disturbed unless clearly wrong. Fremont Brewing Co. v. Pekarek, 4 Neb. Unof. 531, 95 N.W. 12 (1903).Manner of taking evidence on hearing is discretionary with trial court. Dittman Boot & Shoe Co. v. Graff, 3 Neb. Unof. 165, 91 N.W. 188 (1902).