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That the amount sworn to as due is unless the plaintiff recovers more than unconscionable and unreasonable, is five dollars (overrnling Gaddis v. no ground for dissolving an attach- Lord, 10–141): Weller v. Hawes, 49– ment, although it may render plain- 45; and see notes to $ 2961. tiff liable on his attachment bond: An attachinent injustice's court Ibil.
cannot be granted for less than $5.00. This section has no application to See $ 3606. actions grounded upon tort. It is See, as applicable to this section, error to charge that in such cases an notes to $ 2955. a'tachment is wrongfully sued out |
SEC. 2954. The amount thus sworn to is intended as a guide Amount of to the sheriff, who must, as nearly as the circumstances of the Pached it. case w.ll permit, levy upon property fifty per cent. greater in &.
R. 2 3176.
C. '51, e 1850. value than that amount.
SEC. 2955. If the demand is not founded on contract, the Not on conoriginal petition must be presented to some judge of the suprema,
tract; judge to
, allow · district, or circuit court, who shall make an allowance thereon op 3177.
C. '51, 1851, the amount in value of the property that may be attachel. The 13 G'A. ch. 161 provisions of this section apply only to cases in the district and 2 2. circuit court.
An action on a penal bond, held, to, ed sum, as a forfeiture provided by be an action upon contract, and not a penal statute or ordinance, the remwithin this section. The distinction edy in such case being by action of intended is between actions ex con- debt: Town of Decorah v. Dunston, tractu and those ex delicto; and if on 34-360. contract, they fall under $ 2953, al- ' An action for damages for false though the damages are not settled representations as to the soundness of or liquidated by the contract itself: sheep sod, held, to be an action Lorii r. Gaddis, 6–37; and see John- founded on contract, and to com: son 1. Butter. 2-53).
within the provision of $ 2953: Swan This :ection does not referto actions | v. Smith, 26-87. brought to recover a certain liquidat
FOR DEBTS NOT DUE.
Sec. 2956. The property of a debtor may be attached previous what petition to the time when the debt becam's due, when nothing but time is mu?
R. 3178. wanting to fix an absolute indebtedness, and when the petition, in C. 31, 1932. addition to that fact, states:
1. That the defendant is about to dispose of his property with intent to defraud his creditors; or
2. That he is about to remove from the state and refuses to make any arrangements for securing the payment of the delit when it falls due, and which contemplated removal was not known to the plaintiff at the time the debt was contracted; or,
3. That the defendant has disposed of his property in whole or in part with intent to defraud his creditors; or,
4. That the debt was incurred for property obtained under false pretenses.
In an action commenced by attach- has no application to the preceding ment under this section, the defend- subdivision in relation to cases where ant cannot set up the defense that defendant is about to dispose of his the debt is not due: Churchill v. I property, etc.? Danforth i. Carter, Fulliam, 8-15.
1-346. That defendant refused to make A disposition or removal of propany arrangements for securins, etc., erty must be with intent to defraud, as specified in 2, need only be aver- in order to bring the cas: within tuis red in comection with the allegati in section: Pride v. Wormwood, 27that he is about to remove, etc., and 1 257.
in such case.
Sec. 2957. If the debt or demand on which the attachment. When to plead suit is brought is not due at the time of the service of the attach
ment, the defendant is not required to file any pleadings until the R. 2 3179.
m:turity of such debt or demand; but he may, in his discretion, do so and go to trial as early as the cause is reached.
SEC. 2958. And no final judgment shall be rendered upon Judgment in such attachment unless the party consents as in the last section, R. & 3180.
until the debt or demand upon which it is based becomes due. But property of perishable nature may be sold as in other attachment cases.
SEC. 2959. In all cases, before an attachment can be issued, the Must be first plaintiff must file with the clerk a bond for the use of the defendgiven: amount. R. 2 3181. ant, with sureties to be approved by such clerk, in a penalty at C. 31, 2 1853.
least double the value of the property sought to be attached, and in no case less than two hundred and fifty dollars in a court of record, nor less than fifty dollars if in a justice's court, conditioned that the plaintiff will pay all damages which the defendant may sustain by reason of the wrongful suing out of the attachment.
[The printed code has "it" instead of " an attachment," in the first line, as in the original.)
The bond is to be double the value v. Phenicie, 9-525; Van W’inkle v: of the property which the sherifl may Sterens, 9–261; llamble v. Owen, 20attach, or three times the amount | 70. A bonil signed by both principal sworn to by plaintiff. It is not sut- and sureties in their partnership ficient that it be double the amount name, is not prima facie insufficient: sworn to, or double the value of the Danforth v. Carter, 1-346; Churchill property which is actually attached: v. Fulliam, 8-45. Churchill v. Fulliam, 8-45; Humilli
Sec. 2960. The defendant may, at any time before judgment, Additional move the court or judge for additioual security on the part of the R. 4 3152.
plaintiff, and if, on such motion, the court or judge is satisfied that the surety in the plaintiff's bond has removed from this state, or is not sufficient, the attachment may be vacated and restitution directed of any property taken under it, unless, in a reasonable time to be fixed by the court or judge, security is given by the plaintiff.
Sec. 2961. In an action on such bond, the plaintiff therein Action on or may recover if he shows that the attachment was wrongfully sued by way of coun- out, and that there was no reasonable cause to believe the ground ter claim. R. 8 3183, upon which the same was issued to be true, the actual damages C. 51, 2 1854.
sustained and reasonable attorney's fees to be fixed by the court; and if it be shown such attachment was sued out maliciously, he may recover exemplary damages, nor need he wait until the principal suit is deterwined before suing on the bond.
(The word "fixed" in the fifth line, as in the original, is "filed” in the printed code.)
An action for wrongfully suing | probable cause, should sue out a writ out an attachment, should be brought of attachment; but in the absence of on the bond: Abbott v. Whipple, 4 Gr. | proof of malice and want of proba320.
ble cause, the only remedy is on the An action might be maintained in- | bond: Tallant V. Burlington Gas dependently of the statute against a Light Co. 36-262. party who, maliciously and without! The question in an action on the
bond, for improperly suing out the sued out: Gadiis v. Lord, 10–141.
Defendant inay show as a defense, making defense to the attachment
the damages recoverable are confined Where the ground alleged for an to actual compensation for damages atta hment was that defendant was immediately consequent upon the about to dispose of his property with wrongful act, and under Rev. $ 3183, intent to deiraud his creditors, held, which did not authorize the recovery that on the trial of a counter claim of attorney's fees, held, that defenclant for damages for the wrongful suing could not recover such fees for deout of such attachment, defendant fending an attachment suit, or prosecould not testify what his intention cuting an action on the bond: Plumb in disposing of his property really I v. Woodmansee, 34-116. was, the true question being whether. The mis-print of filed" for "fixed" plaintiff had reasonable cause to be- is referred to and recognized as an lieve that defendant's intention was error in Selz v. Belden, 48-451, and fraudulent: Selz v. Belden, 48–451. Weller ". Hawes, 49-45.
The judgment in an attachment The jury have nothing to do with suit may be introduced in evidence in fixing the amount of the attorney's an action on the bond, and is conclu- fee. The better practice would be sive as to the inde tedness between not to introduce any evi lence as to the parties, but not as to the plain- such fee during the trial, but if, in tiff's belief in regard to the truth of answer to a special interrogatory, the the matters stated in his petition: jury find that the judgment was Gadis x Lord, 10-141; Rarer v. wrongfully sued out, then evidence as Webster, 3-502.
to the amount of the fee should be To entitle a party to exemplary introduced to the court and a fincling damages, it must a pear that the at- ma le, and the amount so fixed should taching plaintiff procured the attach- then be added to or dedu teil from ment without reasonable groun is to the amount found by the jury as the believe the truth of the matter stated case may require: Selz v. Belden, 48in his application, and with the in- 451. tention, il sign, or set purpose of in- Attorney's fees constitute a part of juring the defendant ther-in: Ibid. the costs, and the legislature may (both cases.)
autborize the court to fix the amount, A failure to recover at all, or a re- | without submitting the question to covery of less than $5.00, is conclusive the jury: Weller v. Haues, 49–45. that the attachment was wronglully!
MODE OF ATTACHMENT.
Sec. 2962. The clerk shall issue an attachment, directing the To whom disheriff of the county therein named to attach the property of the rected
R. 23:53, defendant to the requisite amount therein stated.
C. 51, $ 1936. The cause of a tachment need not Prior to the enactment of $ 3921, be stated in the writ: Wadsworth v. which is broader than Rev. $ 3.42, it Cheeney, 13-576.
was held that the seal of the court It is not essential that the writ re- was essential to the writ of attachcite the fact that a bond has been filed: ment, and the absence of such seal Hays r. Gorby, 3-203 (commenting could not be supplied by way of upon Barber v. Swan, 4 Gr. 352); amendment: Foss v. Issett, 4 Gr. Ellsiorth v. Moo, e, 5-486.
176 ; and that affixing the seal of the
wrong court was equivalent to omit- , than was held by the defendant at
amount of property is attached:
Sec. 2963. Attachments may be issued from courts of record More than one to different counties, and several may, at the option of the plaintiff, attachment muy isstic and be issued at the same time, or in succession and subsequently, to several coun- until sufficient property has been attached; but onlv those executed ties at samme time.
shall be taxed in the costs, unless otherwise ordered by the court; R >3184. C. '51, 2 1835,
and if more property is attached in the aggregate than the plaintiff 1838.
is entitled to have held, the surplus must be abandoned and the plaintiff pay all costs incurred in relation to such surplus.
Sec. 2964. The sheriff shall in all cases attach tie amount of Property at. property directed if sufficient, not exempt from execution, found tached; oficer's in iis county, giving that in which the defendant has a legal and duty. R. 23186. * unquestionable title a preference over that in which his title is C. '51, & 1857.
doubtful or only equitable.
An attachment levy made by al Appraisement of the property levied sheriff outside of his county, or secured on is not necessary to make the levy by fraud or violence, is void, and may good; it is only required where a be dissolved by motion: Pomroy v. delivery bond is given (see $2997): Parmlee, 9-140.
| Smith v. Cooper 8, 9-376. Sec. 2965. Where there are several attachments against the Several attach- same defendant, they shall be executed in the order in which they men's.
were received by the sheriff. R. 23187.
Sec. 2966. If, after an attachment has been placed in the May follow to hands of the sheriff, any property of the defendant is moved from another coun- the county, the sheriff may pursue and attach the same in an adty: when. R. & 3188. joining county within twenty-four hours after removal.
The removal of the debtor is en-36-315. tirely immaterial: Budd v. Durall, |
Sec. 2967. Stock or interest owned by the defendant in any What may be company, and also debts due him, or property of his held by third attache land
persons, may be attached, and the mode of attachment must be as how done. R. 2 3191. follows: 60.
1. By giving the defendant in the action, if found within the county, and also the person occupying or in possession of the property, if it be in the hands of a third person, notice of attachiment;
2. If the property is capable of manual delivery, the sheriff must take it into his custody if it can be found;
3. Stock in a company is attached by notifying the president or other head of the company, or the secretary, cashier, or other managing agent thereof, of the fact that the stock has been so attached.
4. Debts due the defendant, or property of his held by third persons and which cannot be found, or the title to which is doubtful, are attached by garnishment thereof.
The provision as to notice applies / and not to cases of garnishment: only to cases of attached property, , Phillips v. Germion, 43-101.
C. 51, 2 1850
To constitute a valid levy, even be cases where it is sought to reach the tween the parties, the officer should equitable in erest of real property do that which would amount to a held by third parties: Seymour v. change of possession, or something Kramer, 5–28.7. equivalent to a claim of d minion An attachment by garnishment coupled with the sower to exercise it: creates no lien on the property, but Cranford 1. Neueil, 23-453. But the remedy is of a personal nature there may be a valid attachment levy, against the garnishee: Movar v. as between the parties at least, upon Walker, 46–164. property not capable of manual de Judgments owned by defendant livery, which is left in charge of vie are debts, and can only be attached by fendant: Nockles v. Eggspieler, 47-garnishment, a though under $ 3046 400
they may be levied on and sold The proceedings specified in 13 under execution: Ochiltree v. J. I. & create a lien on the stock and prevent N.R. Co , 49–150. a transfer thereof: Mooar v. Walker, ! From the provisions of T 4 it appears 46-164.
t'iat garnishment is simply a mode of The provisions of 4 are applicable attachment; Woodward r. Adams, only to personal property, and not to 19-474.
Sec. 2968. Whenever it appears by the affidavit of the plain- Defendant ex. tiff, or by the return of the attachment, that no property is known omh before to the plaintiff or the officer on which the attachment can be exe- judge,
R. 3139, cuted, or not enough to satisfy the plaintiff's claim, and, it being 16. A. ch. Lust shown to the judge of any court by affidavit, that the defendant ? 21. has property within the state not exempt, the defendant my be required by such judge to attend before him, or before the court in which the action is pending, and give information on oath respecting his property. Sec. 2969. Property attached otherwise than by garnislıment, When property
? bound is bound thereby from the time of the service of the attachment R2:215. only.
C. '51, 2 1874. The actual service of an attachment lv. Felt, 15-141; and the death of the upon property creates a real lien, defendant will not destroy a prior which nothing subsequent can de- acquired lien: Lorn 1. Allen, 34-281. stros, except the dissolution of the The lien of an attachment does not attachment. The legislature may take priority over an unrecorded insuspend the enforcement of such liens, strament: Savery v. Browning, 18but cannot destroy them: Hannah. 1 246.
SE : 2970. The court before whom the action is pending, or Receiver an. the judge thereof in vacation, may, at any time, appoint a receiver pointed: when to take possession of property attached under the provisions of R. 2 3216. this chapter, and to collect, manage, and control the same, and pay over the proceeds according to the nature of the property and the exigency of the case.
Sec. 2971. All money attached by the sheriff, or coming into Money athis bands by virtue of the attachment, shall forth with be paid paid clerk over to the clerk to be by him retained till the further action of R 27,
C, '51.6 1877), the couri.
1882. SEC. 2972. The sheriff shall make such disposition of other Other property.
23218. attached property as may be directed by the court or judge, and where there is no direction upon the subject he shall safely keep the property subject to the order of the court.
tached to be
Sec. 2973. In executing an attachment against a person who Inventory and owns property jointly or in common with another, or who is a usement. member of a partnership, the officer may take possession of such