Nebraska Revised Statute 25-331

Revised Statutes » Chapter 25 » 25-331
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25-331. Third-party action; procedure.

(1) At any time after commencement of the action, a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than ten days after filing the original answer. Otherwise the third-party plaintiff must obtain leave of the trial court on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall have all the rights of a defendant including the rights authorized by this section. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant shall have all the rights of a defendant including the rights authorized by this section. The court on its own motion, or motion of any party, may move to strike the third-party claim, or for its severance or separate trial if the third-party claim should delay trial, might tend to confuse a jury, or in any way jeopardize the rights of the plaintiff. A third-party defendant or subsequent defendants may proceed under this section.

(2) When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this section would entitle a defendant to do so.

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A motion to sever a third-party claim is addressed to the discretion of the trial court, and an order granting or denying such motion is reviewed by an appellate court for an abuse of discretion. Hradecky v. State, 264 Neb. 771, 652 N.W.2d 277 (2002).

This section requires leave of the trial court before filing a third-party complaint, and whether to grant such leave is entrusted to the discretion of the trial court. A third-party claim under this section may be asserted when a third-party's liability is in some way dependent upon the outcome of the main claim or when the third party is secondarily liable to the defendant. Denial of leave to join a third-party defendant is not a final, appealable order because it does not determine the action and prevent a judgment. The term "defendant" in section 25-21,185.10 includes a third-party defendant brought into an action pursuant to this section. Slaymaker v. Breyer, 258 Neb. 942, 607 N.W.2d 506 (2000).

A third-party claim under this section may be asserted when a third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defendant. Dammann v. Litty, 234 Neb. 664, 452 N.W.2d 522 (1990).

The granting of leave to file a third-party complaint under this section is within the discretion of the trial court. Employers Reins. Corp. v. Santee Pub. Sch. Dist. No. C-5, 231 Neb. 744, 438 N.W.2d 124 (1989).

A third-party action should be dismissed if the evidence adduced at trial establishes that the third party could not be liable to the defendant for all or part of the plaintiff's claim against him. Life Investors Ins. Co. v. Citizens Nat. Bank of Wisner, 223 Neb. 663, 392 N.W.2d 771 (1986).

At any time after the commencement of the action, a defendant, as a third-party plaintiff, may cause a summons to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. A third-party claim may be asserted only when the third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to defendant. AgriStor Credit Corp. v. Radtke, 218 Neb. 386, 356 N.W.2d 856 (1984).

A third-party claim may be asserted under this section when a third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defendant. Church of the Holy Spirit v. Bevco, Inc., 215 Neb. 299, 338 N.W.2d 601 (1983).

The granting of leave to file a third party complaint is a matter entirely within the discretion of the trial court. Northwestern Bell Tel. Co. v. Woodmen of the World Life Ins. Soc., 189 Neb. 30, 199 N.W.2d 729 (1972).