25-325. Interpleader by order of court upon affidavit of defendant.

Upon the affidavit of a defendant, before answer in an action upon contract or for the recovery of personal property, that some third party, without collusion with the defendant, has or makes a claim to the subject of the action, and that the defendant is ready to pay or dispose of the same as the court may direct, the court may make an order for the safekeeping, or for the payment, or deposit in court, or delivery of the subject of the action, to such person as it may direct, and an order requiring such third party to appear in a reasonable time and maintain or relinquish his or her claim against the defendant. If such third party, being served with a copy of the order by the sheriff or such other person as the court may direct, fails to appear, the court may declare such third party barred of all claim in respect to the subject of the action against the defendant therein. If such third party appears, he or she shall be allowed to make himself or herself the defendant in the action in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon compliance by the defendant with the order of the court for the payment, deposit, or delivery thereof.

Source

Annotations

1. Payment into court

2. Interpleader

3. Miscellaneous

1. Payment into court

Stakeholder should pay or offer to pay fund into court so that disposition thereof may be made effective. Burke Lumber & Coal Co. v. Anderson, 162 Neb. 551, 76 N.W.2d 630 (1956).

Where one owing debt claimed by several persons files application in district court making respective claimants parties, brings money into court, and prays for determination of ownership, proceeding is interpleader under statute. Citizens Nat. Bank of Wisner v. McNamara, 120 Neb. 252, 231 N.W. 781 (1930).

This section protects depository or escrow holder, who interpleads in good faith, from vexation and expense of litigation. Farming Corp. v. Bridgeport Bank, 113 Neb. 323, 202 N.W. 911 (1925).

Where not otherwise ordered, failure to bring money into court subjects defendant to interest. Elkhorn Valley Lodge No. 57, I.O.O.F. v. Hudson, 59 Neb. 672, 81 N.W. 859 (1900).

2. Interpleader

A defendant may interplead in a declaratory judgment proceeding. United Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N.W.2d 174 (1961).

One who precipitated litigation cannot maintain interpleader. Strasser v. Commercial Nat. Bank, 157 Neb. 570, 60 N.W.2d 672 (1953).

A bill of interpleader is an equitable remedy whereby a disinterested stockholder in possession of a fund or other property claimed by each of rival claimants may require them to litigate the issue of ownership without embroiling him. Provident Savings & Loan Assn. v. Booth, 138 Neb. 424, 293 N.W. 293 (1940).

Remedy provided by this section is a substitute for the equity remedy, although somewhat broader. Hartford Life & Annuity Ins. Co. v. Cummings, 50 Neb. 236, 69 N.W. 782 (1897).

Bailee may not interplead bailor and third party. Schellenberg v. Fremont, E. & M. V. R. Co., 45 Neb. 487, 63 N.W. 859 (1895).

3. Miscellaneous

In an interpleader suit between two assignees of claim against county, party who first filed notice with county was entitled to fund. Greeley County v. First Nat. Bank of Cozad, 126 Neb. 872, 254 N.W. 502 (1934).

Purchaser may protect himself from double payment by interpleading real owner and vendor. Jaques v. Dawes, 3 Neb. Unof. 752, 92 N.W. 570 (1902).