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.
§ 25-1041.Attachment; motion to discharge; evidence.
Article 10: Attachment, Garnishment, Injunctions, Receivers, and Replevin · Last amended 1980 · Last verified July 22, 2026
In one sentenceThis section governs the hearing on a motion to discharge an attachment: it tries whether a statutory ground for attachment existed when the writ issued, requires the plaintiff to prove that ground by a preponderance of the evidence, and lets the court choose affidavits or the ordinary evidence rules.
Full Text of § 25-1041
Source
R.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 References
Nebraska Evidence Rules, see section 27-1103.
Plain-English Summary
Section 25-1040 gives the defendant the right to move to discharge an attachment. Section 25-1041 spells out what happens once that motion is filed. The hearing is not a rubber stamp — it is a trial of the issue of whether one or more of the statutory grounds for attachment, listed in § 25-1001, existed at the time the order of attachment issued, as alleged in the affidavits filed under § 25-1002.
The burden lands squarely on the plaintiff. The court must discharge the order of attachment unless the plaintiff proves, by a preponderance of the evidence, one of the grounds alleged under § 25-1001 on which the writ was issued. In other words, getting an attachment issued in the first place through an affidavit is not the end of the story — if the defendant challenges it, the plaintiff has to come back and prove the ground was real, this time by a preponderance of the evidence at a contested hearing.
The section also gives the court flexibility on how that proof comes in. The court can order that evidence at the hearing be presented, in whole or in part, through affidavits formatted the way § 25-1334 requires for summary judgment affidavits — a faster, paper-based way to build the record. Where the court does not order that approach, evidence at the hearing is governed by the Nebraska Evidence Rules instead, meaning live testimony and the ordinary rules for admissibility apply.
For a defendant, this section is where the fight over an attachment gets decided. It converts a challenge to an attachment from a paperwork dispute into a real evidentiary hearing, with the plaintiff carrying the burden and the defendant in position to win outright discharge if that burden is not met.
Frequently Asked Questions
What exactly does the court decide at a hearing on a motion to discharge an attachment?
Who has to prove the grounds for the attachment were real — the plaintiff or the defendant?
The plaintiff. The court must discharge the attachment unless the plaintiff proves, by a preponderance of the evidence, one of the grounds alleged under § 25-1001.
What standard of proof applies at the hearing?
A preponderance of the evidence — the plaintiff must show it is more likely than not that a qualifying ground for attachment existed when the writ issued.
Can the evidence at the hearing come in through written affidavits instead of live testimony?
Yes, if the court orders it. The court may direct that evidence be presented, in whole or in part, by affidavits in the form required by § 25-1334 for summary judgment affidavits.
What rules apply if the court does not order affidavit-based evidence?
The Nebraska Evidence Rules govern the presentation of evidence at the hearing in that situation.
What happens if the plaintiff fails to meet the burden of proof at the hearing?
The court must discharge the order of attachment as to the property covered by the motion.
Does the defendant have to prove anything at this hearing?
No. The statute places the burden on the plaintiff to prove a ground for attachment; the defendant’s role is to challenge that proof through the motion to discharge.
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: hearing on motion to discharge attachmentburden of proof attachment hearingpreponderance of evidence attachment nebraskadischarge attachment evidence rulesgrounds for attachment proof required