When the property claimed has not been taken, or has been returned to the defendant by the sheriff for want of the undertaking required by section 25-1098, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper; but if the property be returned for want of the undertaking required by such section, the plaintiff shall pay all costs made by taking the same.
§ 25-10,106.Property not taken or returned to defendant; judgment for plaintiff; nature and amount.
Article 10: Attachment, Garnishment, Injunctions, Receivers, and Replevin · Not amended since original codification · Last verified July 22, 2026
In one sentenceThis section converts a replevin action into a damages-only claim whenever the property was never taken or was returned to the defendant for lack of the § 25-1098 bond, letting the plaintiff recover proper damages while requiring the plaintiff to cover the costs of taking if the bond was never posted.
Full Text of § 25-10,106
Source
R.S.1867, Code § 193, p. 423; R.S.1913, § 7835; C.S.1922, § 8779; C.S.1929, § 20-10,106; R.S.1943, § 25-10,106.
Plain-English Summary
Not every replevin case results in the sheriff taking possession of the property, and not every taking sticks. Sometimes the property is never located or seized in the first place; other times it is seized but then returned to the defendant because the plaintiff failed to post the bond required by § 25-1098. This section tells the court how to handle the lawsuit when either of those things happens.
Rather than dismissing the case, the action continues as one for damages only — the fight over physical possession is over, but the plaintiff can still recover damages the court finds right and proper for the underlying wrong. The measure of recovery shifts from getting the item back to compensating for the loss.
There is a catch tied to the second scenario. If the property was returned to the defendant specifically because the plaintiff never posted the required undertaking, the plaintiff has to pay the costs generated by taking the property in the first place. A plaintiff who seizes property but then fails to bond it does not get to walk away from the expense that seizure caused.
Frequently Asked Questions
What happens if the sheriff never manages to locate or seize the property?
The replevin action proceeds as one for damages only, and the plaintiff can recover damages the court finds right and proper.
What if the property was taken but then given back to the defendant?
If it was returned for want of the bond required by § 25-1098, the same damages-only process applies, but the plaintiff also has to pay the costs of the taking.
Does the plaintiff lose the case entirely if the property is never delivered?
No. The case continues as a claim for damages instead of a claim for the physical property.
Why does the plaintiff have to pay costs in the bond-failure scenario?
Because the return happened only because the plaintiff did not follow through on the bonding requirement, so the plaintiff bears the expense that his own incomplete taking caused.
Is this the same as the damages a plaintiff would get after winning a full replevin trial?
The measure here is what is right and proper for a case that never fully proceeded as a possession dispute, distinct from the illegal-detention damages addressed in § 25-10,105 for cases where the property was delivered and the plaintiff prevailed.
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: property never taken replevin damagesreturned for want of bond nebraskareplevin action damages onlyplaintiff pays costs no bond replevin