No suit shall be instituted on the undertaking given under section 25-1098 before an execution issued on a judgment in favor of the plaintiff or defendant in the action shall have been returned, that sufficient property whereon to levy and make the amount of such judgment cannot be found in the county.
§ 25-10,109.Suits on undertakings; when brought.
Article 10: Attachment, Garnishment, Injunctions, Receivers, and Replevin · Last amended 1972 · Last verified July 22, 2026
In one sentenceThis section bars a lawsuit on the § 25-1098 bond until an execution issued on the underlying judgment, for either the plaintiff or the defendant, has come back showing that no property sufficient to satisfy it can be found in the county.
Full Text of § 25-10,109
Source
R.S.1867, Code § 196, p. 424; R.S.1913, § 7836; C.S.1922, § 8782; C.S.1929, § 20-10,109; R.S.1943, § 25-10,109; Laws 1972, LB 1049, § 4.
Plain-English Summary
Posting a bond under § 25-1098 does not mean the surety is fair game to be sued the moment judgment is entered. This section makes a suit on that undertaking premature until a specific step has already failed: an execution on the judgment — whether the judgment favored the plaintiff or the defendant — has to have been issued and returned unsatisfied, showing that no property sufficient to cover the judgment could be found in the county.
That sequencing pushes the bond into a backstop role. The judgment creditor has to try the ordinary route of collecting from the judgment debtor’s own property first. Only when that route comes up empty does the undertaking become fair game for a lawsuit.
Frequently Asked Questions
Can a party sue on the § 25-1098 undertaking right after winning a judgment?
No. A suit on the undertaking cannot be brought until an execution on the judgment has been issued and returned unsatisfied for lack of sufficient property in the county.
Does this rule apply whether the plaintiff or the defendant won the underlying judgment?
Yes. It applies to an execution issued on a judgment in favor of either the plaintiff or the defendant.
What does returned unsatisfied mean here?
It means the execution came back showing sufficient property to cover the judgment could not be found in the county.
Why require this extra step before suing on the bond?
It makes the bond a backstop rather than a first resort, requiring the judgment creditor to try collecting from the judgment debtor’s own property before turning to the surety.
Which undertaking does this section govern?
The bond required under § 25-1098 — whether it is the plaintiff’s bond or the defendant’s redelivery bond, both given under that section.
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
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