§ 25-1051.Attachment order in actions on claims not due; refusal requires dismissal of action.
Article 10: Attachment, Garnishment, Injunctions, Receivers, and Replevin · Not amended since original codification · Last verified July 22, 2026
Full Text of § 25-1051
Source
R.S.1867, Code § 239, p. 433; R.S.1913, § 7780; C.S.1922, § 8724; C.S.1929, § 20-1051; R.S.1943, § 25-1051.
Plain-English Summary
The early-attachment procedure under §§ 25-1049 and 25-1050 is tightly bound to the attachment itself — the lawsuit cannot exist on its own once the request for the writ fails. Section 25-1051 makes that connection explicit: if the court or judge refuses to grant an order of attachment as provided in those two sections, the action must be dismissed.
That dismissal is not the end of the road for the creditor’s claim, though. The section specifies that the dismissal is without prejudice to a future action, meaning the creditor can try again once the claim has matured or the creditor is ready to pursue it through ordinary means, rather than losing the underlying claim outright because an early attachment attempt fell short.
There is a catch for any repeat attempt while the debt is still not due: the section requires that in all such actions, an application for attachment must be made. A creditor cannot bring this type of early-claim lawsuit without also applying for the attachment that justifies bringing it before the debt is due.
Frequently Asked Questions
What happens if the court refuses to grant an early attachment under §§ 25-1049 and 25-1050?
The action itself must be dismissed.
Does dismissal under this section mean the creditor loses the underlying claim forever?
No. The dismissal is without prejudice to a future action, so the creditor can pursue the claim again later.
Can a creditor bring a new lawsuit on the not-yet-due claim without applying for attachment again?
No. The section requires that in all such actions — meaning actions brought on a claim before it is due — an application for attachment must be made.
Why does the whole action get dismissed just because the attachment was refused?
The action was authorized in the first place only because the creditor sought an attachment on a claim not yet due; without the attachment, there is no basis for bringing the action early.
Can the creditor wait until the claim is due and sue in the ordinary way instead?
Yes. Once the claim is due, the creditor is no longer relying on the early-action mechanism in §§ 25-1049 through 25-1051 and can pursue an ordinary action on the matured claim.