The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or part of the property attached.
§ 25-1040.Attachment; motion to discharge; right of defendant.
Article 10: Attachment, Garnishment, Injunctions, Receivers, and Replevin · Not amended since original codification · Last verified July 22, 2026
In one sentenceThis section gives the defendant the right, at any time before judgment and on reasonable notice to the plaintiff, to move the court to discharge an attachment on all or part of the property it covers.
Full Text of § 25-1040
Source
R.S.1867, Code § 235, p. 432; R.S.1913, § 7769; C.S.1922, § 8713; C.S.1929, § 20-1040; R.S.1943, § 25-1040.
Plain-English Summary
Getting property attached does not settle anything about who is right in the underlying lawsuit — it only freezes property in place while the case plays out. Section 25-1040 gives the defendant a direct way to challenge that freeze. At any time before judgment, and after reasonable notice to the plaintiff, the defendant can move to discharge the attachment, either as to all of the property attached or only part of it.
This is the defendant’s main tool for fighting back against an attachment. It does not require waiting for trial on the merits of the underlying claim, and it does not require accepting the attachment as settled just because the sheriff already seized the property. The motion can target the whole attachment or carve out only the portion the defendant thinks was wrongly reached, which matters when a plaintiff’s writ swept up more property than the claim could reasonably support.
Section 25-1040 sets up the right to bring the motion; § 25-1041 fills in what happens at the hearing — what has to be proven, and by whom.
Frequently Asked Questions
When can a defendant move to discharge an attachment?
At any time before judgment, after giving the plaintiff reasonable notice of the motion.
Can a defendant challenge only part of the attached property, or does the whole attachment have to go?
Either. The motion can seek discharge of the whole attachment or only part of the property attached.
Do I need to wait until trial to challenge an attachment?
No. This motion can be brought well before trial or judgment, as soon as the defendant has grounds and gives the plaintiff reasonable notice.
What happens at the hearing on a motion to discharge?
Section 25-1041 governs the hearing, making it a trial of whether the grounds for the attachment existed, with the plaintiff carrying the burden of proof.
Is a motion to discharge the same as asking for additional security?
No. A motion to discharge under this section challenges the attachment itself; § 25-1039 provides a separate motion aimed at the sufficiency of the plaintiff’s surety.
Does filing this motion require a formal answer or counterclaim in the case?
No. It is a motion aimed specifically at the attachment, separate from the defendant’s pleadings responding to the underlying claim.
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: motion to discharge attachment nebraskafight an attachment orderrelease attached property defendantchallenge attachment before judgmentdefendant remedy against attachment