If the property has been delivered to the plaintiff, and he suffers a voluntary or involuntary dismissal, or if he otherwise fails to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then, and in either case, they shall assess such damages for the defendant as are right and proper; for which, with costs of suit, the court shall render judgment for the defendant.
§ 25-10,102.Judgment against plaintiff upon dismissal; failure of plaintiff to prosecute; procedure.
Article 10: Attachment, Garnishment, Injunctions, Receivers, and Replevin · Last amended 1959 · Last verified July 22, 2026
In one sentenceThis section lets a defendant, once the plaintiff who already received the property drops the case or fails to pursue it to judgment, ask the court to impanel a jury to determine the defendant’s right of property or possession and award damages accordingly.
Full Text of § 25-10,102
Source
R.S.1867, Code § 190, p. 423; R.S.1913, § 7831; C.S.1922, § 8775; C.S.1929, § 20-10,102; R.S.1943, § 25-10,102; Laws 1959, c. 103, § 1, p. 427.
Plain-English Summary
Replevin cases do not always reach a verdict on the merits — plaintiffs sometimes dismiss voluntarily, get dismissed involuntarily, or let the case sit without pursuing it to final judgment. This section addresses what happens to the property when that occurs after it is already gone to the plaintiff. The defendant does not have to walk away empty-handed just because the underlying case fell apart.
On the defendant’s application, the court impanels a jury specifically to inquire into the defendant’s right of property and right of possession over the item the plaintiff took. If the jury concludes the property belonged to the defendant when the suit began, or that the defendant was at least entitled to possess it at that time, the jury assesses damages for the defendant. The court then enters judgment for the defendant for those damages, plus costs.
This section keeps a defendant from being left with nothing just because a plaintiff walked away from a suit after already collecting the disputed property — it substitutes a focused jury inquiry for the trial the plaintiff abandoned.
Frequently Asked Questions
What triggers the process in this section?
The plaintiff has already received the property, then either voluntarily or involuntarily dismisses the case, or otherwise fails to prosecute it to final judgment.
Who has to ask the court to act?
The defendant, or the defendant’s attorney, must apply to the court.
What does the jury decide?
Whether the property belonged to the defendant, or the defendant was entitled to possess it, at the time the suit was filed, and if so, what damages the defendant should recover.
What does the defendant get if the jury rules in his favor?
Judgment for damages, along with costs of the suit.
How is this different from the outcome in § 25-10,103?
Section 25-10,103 addresses a jury verdict for the defendant when the case is tried on the issues; this section addresses the situation where the plaintiff never gets the case to that point.
Source & verification. Section text and the amendment-history citation are
reproduced verbatim from the Nebraska Legislature, Revisor of Statutes, enacted by the
Nebraska Legislature. Last verified July 22, 2026. ·
Official source
Also known as: plaintiff dismisses replevin casedefendant remedy when plaintiff abandons suitjury inquiry right of property nebraskafailure to prosecute replevin