25-10,109.
Suits on undertakings; when brought.
No suit shall be instituted on the undertaking given under section 25-1098 before an execution issued on a judgment in favor of the plaintiff or defendant in the action shall have been returned, that sufficient property whereon to levy and make the amount of such judgment cannot be found in the county.
Source:R.S.1867, Code § 196, p. 424; R.S.1913, § 7836; C.S.1922, § 8782; C.S.1929, § 20-10,109; R.S.1943, § 25-10,109; Laws 1972, LB 1049, § 4.
Annotations
It is sufficient that plaintiff fails to return property and execution on money judgment is returned unsatisfied. Eickhoff v. Eikenbary, 52 Neb. 332, 72 N.W. 308 (1897).
Return of execution unsatisfied is prerequisite to action and petition must so allege. Hershiser v. Jordan, 25 Neb. 275, 41 N.W. 147 (1888).
Judgment against sureties on bond cannot be rendered in replevin action. Lininger v. Raymond, 9 Neb. 40, 2 N.W. 359 (1879).