In any case where a setoff or counterclaim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed the action or failed to appear.
§ 25-603.Dismissal without prejudice; trial on setoff or counterclaim.
Article 6: Dismissal · Not amended since original codification · Last verified July 22, 2026
In one sentenceSection 25-603 preserves a defendant’s right to proceed to trial on a setoff or counterclaim even after the plaintiff has dismissed the underlying action or failed to appear.
Full Text of § 25-603
Source
R.S.1867, Code § 431, p. 465; R.S.1913, § 7656; C.S.1922, § 8600; C.S.1929, § 20-603; R.S.1943, § 25-603.
Plain-English Summary
A plaintiff’s dismissal, or a plaintiff who fails to show up at all, should not automatically wipe out a defendant’s own claim against that plaintiff. Section 25-603 makes sure it does not. Where a defendant has presented a setoff or counterclaim, the defendant keeps the right to go to trial on that claim, whether or not the plaintiff has dismissed the action or failed to appear.
This section is the natural companion to Sections 25-601 and 25-602, both of which let a plaintiff walk away from a case without prejudice in certain circumstances. Without this protection, a plaintiff could file suit, provoke a counterclaim, and then dismiss the original action to sidestep having to litigate the counterclaim at all. Section 25-603 closes that gap by letting the defendant’s claim proceed on its own footing.
Frequently Asked Questions
If I dismiss my lawsuit, does that also end the defendant’s counterclaim against me?
No. Under Section 25-603, the defendant retains the right to proceed to trial on a setoff or counterclaim even after the plaintiff dismisses the action.
What if the plaintiff just fails to show up at trial instead of formally dismissing?
The same protection applies. The defendant may still proceed to trial on the setoff or counterclaim even though the plaintiff failed to appear.
Does this section apply to every counterclaim, or only certain kinds?
The statute refers to a setoff or counterclaim the defendant has presented, without limiting it to a particular type.
How does this section relate to the vacation-dismissal right in Section 25-602?
Section 25-602 already withholds the vacation-dismissal right once a counterclaim or setoff has been filed; Section 25-603 adds a further protection covering dismissals and failures to appear more broadly.
Can the plaintiff avoid litigating a counterclaim by dismissing the case?
No. Section 25-603 exists precisely to prevent a plaintiff’s dismissal or nonappearance from cutting off the defendant’s pending setoff or counterclaim.
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: counterclaim survives dismissal nebraskasetoff after plaintiff dismissesdefendant proceed to trial after dismissal25-603 statuteplaintiff fails to appear counterclaim