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SEC. 207. [Proceedings against garnishee.]-When the plaintiff, his agent or attorney, shall make oath, in writing, that he has good reason to and does believe that any person or corporation, to be named and within the county. where the action is brought, has property of the defendant (describing the same) in his possession, if the officer cannot come at such property, he shall leave with such garnishee a copy of the order of attachment, with a written notice that he appear in court, at the return of the order of attachment, and answer, as provided in section two hundred and twenty-one.
SEC. 208. [Same-Service of order.]—The copy of the order and the notice shall be served upon the garnishee as follows: If he be a person, they shall be served upon him personally, or left at his usual place of residence; if a corporation, they shall be left with the president or other officer of the same, or a managing agent thereof.
SEC. 209. [Several attachments-Same property.]—Different attachments of the same property may be made by the same officer, and one inventory and appraisement shall be sufficient, and it shall not be necessary to return the same with more than one order.
SEC. 210. [Property how attached by subsequent orders.]-Where the property is under attachment, it shall be attached under subsequent orders as follows: First. If it be real property, it shall be attached in the manner prescribed in section two hundred and five. Second. If it be personal property, it shall be attached as in the hands of the officer, and subject to any previous attachment. Third. If the same person or corporation be made a garnishee, a copy of the order and notice shall be left with him, in the manner prescribed in section two hundred and seven.
SEC. 211. [Return of officer.]-The officer shall return upon every order of attachment what he has done under it. The return must show the property attached, and time it was attached. When garnishees are served, their names, and the time each was served, must be stated. The officer shall also return with the order all undertakings given under it.
SEC. 212. [Property and garnishee bound by order.]—An order of attachment binds the property attached from the time of service, and the garnishee shall stand liable to the plaintiff in attachment for all property, moneys, and credits in his hands, or due from him to the defendant, from the time he is served with the written notice mentioned in section two hundred and seven; but where the property is attached in the hands of a consignee, his lien thereon shall not be affected by the attachment.
DISPOSITION OF ATTACHED PROPERTY.
SEC. 213. [Receiver-Appointment.]-The court, or any judge thereof during vacation, may, on the application of the plaintiff, and on good cause shown, appoint a receiver, who shall take an oath faithfully to discharge his duty, and shall give an undertaking to the State of Nebraska, in such sum as the court or judge may direct, and with such security as shall be approved by the clerk of the court, for the faithful performance of his duty as such receiver, and to pay over all money, and account for all property, which may come into his hands by virtue of his appointment, at such times and in such manner as the court may direct.
SEC. 214. [Same-Take possession of property.]-Such receiver shall take possession of all notes, due bills, books of account, accounts, and all other evidences of debt, that have been taken by the sheriff or other officer, as the property of the defendant in attachment, and shall proceed to settle and collect the same. For that purpose, he may commence and maintain actions in his own
SEC 207. 2 Neb. 169. 6 Id. 348, 418. 9 Id. 417. 10 Id. 386. 11 Id. 434, 478. 12 Id. 322, 586, 616. 13 Id. 188 373, 406. 14 Id. 189, 217, 243. 16 Id. 493.
SEC 208. 13 Neb. 190
SEC. 211. 9 Neb. 410. 14 Id. 259.
SEC. 212. 6 Neb. 166.
13 Id. 381. 16 Id. 494.
name as such receiver; but in such action no right of defense shall be impaired or affected.
SEC. 215. [Same-Notice to debtors.]-Such receiver shall forthwith give notice of his appointment to the persons indebted to the defendant in attachment. The notice shall be written or printed, and shall be served on the debtor or debtors, by copy personally, or by copy left at the residence; and from the date of such service, the debtors shall stand liable to the plaintiff in attachment for the amount of moneys and credits in their hands, or due from them to the defendant in attachment, and shall account therefor to the receiver.
SEC. 216. [Same-Report.-Such receiver shall, when required, report his proceedings to the court, and hold all moneys collected by him, and property which may come into his hands, subject to the order of the court.
SEC. 217. [Sheriff-Act as receiver.]-Where a receiver is not appointed by the court or a judge thereof, as provided in section two hundred and thirteen, the sheriff or other officer attaching the property shall have all the powers and perform all the duties of a receiver appointed by the court or a judge, and may, if necessary, commence and maintain actions in his own name as such officer. He may be required to give security, other than his official undertaking.
SEC. 218. [Preservation of property-Sale.]-The court shall make proper orders for the preservation of the property during the pendency of the suit. It may direct the sale of property when, because of its perishable nature, or the costs of keeping it, a sale will be for the benefit of the parties. In vacation, such sale may be ordered by the judge of the court. The sale shall be public, after such advertisement as is prescribed for the sale of like property on execution, and shall be made in such manner, and upon such terms of credit, with security, as the court or judge, having regard to the probable duration of the action, may direct. The proceeds, if collected by the sheriff, with all the moneys received by him from garnishees, shall be held and paid over by him, under the same requirements and responsibilities of himself and sureties as are provided in respect to money deposited in lieu of bail.
PROCEEDINGS UPON ATTACHMENT.
SEC. 219. [Attachment-Discharge-Bond.]—If the defendant, or any other person on his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff by one or more sureties resident in the county, to be approved by the court, in double the amount of the plaintiff's claim as stated in his affidavit, to the effect that the defendant shall perform the judgment of the court, the attachment in such action shall be discharged, and restitution made of any property taken under it, or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee in such action for any property of the defendant in his hands.
SEC. 220. [Same—Undertaking.]—The undertaking mentioned in the last section, may, in vacation, be executed in the presence of the sheriff having the order of attachment in his hands, or, after the return of the order, before the clerk, with the same effect as if executed in court; the sureties in either case to be approved by the officer before whom the undertaking is executed.
SEC. 221. garnishee shall appear as follows: If the order of attachment be returned during a term of court, he shall appear at that term; if the order be returned during vacation, he shall appear at the term next after its return. He shall appear and answer under oath all the questions put to him touching the property of every description and credits of the defendant in his possession or under his control, and he shall disclose truly the amount owing by him to the defendant whether due or not, and in case of a corporation, any stock therein held by or for the benefit of the de
SEC. 218. 12 Neb. 347. SEC. 219. 9 Neb. 408. 15 Id. 15. SEC. 221. 15 Neb. 394. 16 Id. 494.
fendant, at or after the service of notice. But a garnishee shall not be required to appear in this or in any other case, unless there is tendered to him the same fees as a witness is entitled to in the suit in which the garnishee proceedings are had, and such fees may be taxed and collected in the same manner as other costs in such proceedings. [Amended 1877, 10. Took effect June 1, 1877.]
SEC. 222. [Same-Payment of money to sheriff.]-A garnishee may pay the money owing to the defendant by him, to the sheriff having the order of attachment, or into court. He shall be discharged from liability to the defendant, for any money so paid, not exceeding the plaintiff's claim. He shall not be subjected to costs beyond those caused by his resistance of the claim against him; and if he disclose the property in his hands, or the truc amount owing by him, and deliver or pay the same according to the order of the court, he shall be allowed his costs.
SEC. 223. Same-Refusal to answer-Contempt.]-If the garnishee do not appear in court and, answer, as required by section two hundred and twenty-one, the court may proceed against him by attachment as for a contempt.
SEC. 224. [Same-Disposition of property.-If the garnishee appear and answer, and it is discovered on his examination, that at or after the service of the order of attachment and notice upon him, he was possessed of any property of the defendant, or was indebted to him, the court may order the delivery of such property and the payment of the amount owing by the garnishee, into the court; or the court may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff by one or more sufficient sureties, to the effect that the amount shall be paid, or the property forthcoming, as the court may direct.
SEC. 225. [Same-Neglect--Action against.]-If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure is not satisfactory to the plaintiff, or if he fail to comply with the order of the court, or deliver the property and pay the money owing into court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action, by filing a petition in his own name, as in other cases, and causing a sum-", mons to be issued upon it; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff, for the amount of the property and credits of every kind of the defendant in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee. If the plaintiff proceed against the garnishee by action, for the cause that his disclosure was unsatisfactory, unless it appear in the action that such disclosure was incomplete, the plaintiff shall pay the costs of such action. The judgment in this action may be enforced as judgments in other cases. When the claims of the plaintiff in attachment are satisfied, the defendant in attachment may, on motion, be substituted as the plaintiff in the judgment.
SEC. 226. [Same-Final judgment-- Discharge.]-Final judgment shall not be rendered against the garnishee, until the action against the defendant in attachment has been determined; and if in such action judgment be rendered for the defendant in attachment, the garnishee shall be discharged and recover costs. If the plaintiff shall recover against the defendant in attachment, and the garnishee shall deliver up all the property, moneys, and credits of the defendant in his possession, and pay all the moneys from him due as the court may order, the garnishee shall be discharged, and the costs of the proceedings against him shall be paid out of the property and moneys so surrendered, or as the court may think right and proper.
SEC. 227. [Judgment for defendant-Attachment discharged.]— If judgment be rendered in the action for the defendant, the attachment shall be discharged, and the property attached, or its proceeds, shall be returned to him.
SEC. 228. [Judgment for plaintiff-Satisfaction.]-If judgment be
SEC. 224. 16 Neb. 494. SEC. 225. 14 Neb. 189, 242. 16 Id. 494.
rendered for the plaintiff, it shall be satisfied as follows: So much of the property remaining in the hands of the officer, after applying the moneys arising from the sale of perishable property, and so much of the personal property, and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon, for the residue, in all respects, as in other cases. Any surplus of the attached property, or its proceeds, shall be returned to the defendant.
SEC. 229. Delivery of property for sale.]-The court may compel the delivery to the sheriff, for sale, of any of the attached property for which an undertaking may have been given, and may proceed summarily on such undertaking, to enforce the delivery of the property, or the payment of such sum as may be due upon the undertaking, by rules and attachments, as in cases of contempt.
SEC. 230. [Same.]-The court may order the sheriff to repossess himself, for the purpose of selling it, of any of the attached property which may have passed out of his hands without having been sold or converted into money; and the sheriff shall, under such order, have the same power to take the property as he would have under an order of attachment.
SEC. 231. [Intervening claimants.]—If personal property which has been attached, be claimed by any person other than the defendant, it shall be the duty of the officer to have the validity of such claim tried, and such proceedings must be had thereon, with the like effect, as in case the property had been seized upon execution, and claimed by a third person.
SEC. 232. [Several several attachments are executed on the same property, or the same persons are made garnishees, the court, on the motion of any of the plaintiffs, may order a reference to ascertain and report the amounts and priorities of the several attachments.
SEC. 233. [Jurisdiction of court-Survivor.]-From the time of the issuing of the order of attachment, the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings under this chapter; and if, after the issuing of the order, the defendant, being a person, should die, or a corporation and its charter should expire by limitation, forfeiture, or otherwise, the proceeding shall be carried on; but in all such cases other than where the defendant was a foreign corporation, his legal representatives shall be made parties to the action.
SEC. 234. [Additional security.]-The defendant may, at any time before judgment, after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court is satisfied that the surety in the plaintiff's undertaking has removed from this state, or is not sufficient for the amount thereof, it may vacate the order of attachment, and direct restitution of any property taken under it, unless in a reasonable time, to be fixed by the court, sufficient security is given by the plaintiff.
SEC. 235. [Motion to discharge attachment.]-The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or a part of the property attached.
SEC. 229. See 9 Neb. 410, and note to sec. 206.
SEC. 234. By provisions of "An act to amend the code of civil procedure in attachment cases," approved Feb. 25, 1875, Laws p. 44, the provisions of secs. 234, 235 and 236, shall apply to county courts and justices of the peace.
SEC. 235. Motion cannot be entertained after final judgment. 6 Neb. 165. 9 Neb. 411. Rights of subsequent ttaching creditor. 6 Neb. 165. Merits of demand cannot be inquired into on hearing of motion. 9 Neb. 236.
SEC. 236. [Same-Evidence-Affidavits.]-If the motion be made upon affidavits on the part of the defendant, or papers and evidence in the case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the order of attachment was made.
SEC. 236a. [Attachment in several counties-Copy to be filed.] SEC. 1. That whenever an attachment shall issue to any other county than the one in which the action is brought, and any lands shall be attached by virtue thereof, it shall be the duty of the officers attaching said property to make out a true copy of said order of attachment, and file the same in the office of the recorder of deeds of the county where the lands so attached are situated. He shall also certify upon said copy of said order of attachment, that the same is a true copy of the original writ received by him, and he shall also endorse thereon the description of the property attached, and the time when the same was attached under and by virtue of the original order of attachment. [G. S. 714.]
SEC. 2366 [Same-Record.]-SEC. 2. It shall be the duty of the recorder of deeds of the county, when the copy of the order of attachment has been filed as provided in this act, to record the same in the miscellaneous record together with the certificate of the officers heretofore mentioned, and such copy of said orders of attachment, and certificate so filed and recorded, shall be sufficient notice to subsequent purchasers of said land so attached as aforesaid. SEC. 236 c. [Same-Discharge-Proceedings.]-SEC. 3. If the order of attachment be discharged it shall be the duty of the clerk of the court in which the action is brought, to certify that fact, together with the time when the order was discharged to the recorder of deeds in whose office the copy of said order has been recorded as aforesaid; whereupon such recorder shall file such certificate, and write across the record of such copy the word "discharged," and also the time of discharge, as shown in said certificate.
SEC. 236 d. Same-Fees.]-SEC. 4. The officer for making out said copy of the order of attachment, and the clerk for recording the same, shall each receive such compensation as is now allowed by law for similar services to be taxed in the costs, unless otherwise ordered by the court.
SEC. 236 e. [Retention of property pending review on error.]— SEC. 1. That when an order discharging an order of attachment is made, and any party affected thereby shall except thereto, the court or judge shall fix the number of days, not to exceed twenty, in which such party may file his petition in error, during which time the property attached shall be held by the sheriff or other officer, during which period the petition in error shall be filed, and the party filing the same shall give an undertaking to the adverse party, with surety or sureties, to be approved by the court, in double the amount of the appraised value of the property attached, conditioned to pay said adverse party all damages sustained by such party in consequence of the filing of said petition in error, in the event that such order of attachment shall be discharged by the court, in which said petition in error shall be filed, as having been unlawfully obtained. [G. S. 715.] SEC. 236 f. [Same-Conduct of original action.]-SEC. 2. The original action shall proceed to trial and judgment in every other respect as though no writ of error had been prosecuted.
ATTACHMENTS IN CERTAIN ACTIONS.
SEC. 237. [Claim not due.]-A creditor may bring an action on a claim before it is due, and have an attachment against the property of the debtor,
"An act requiring copies of attachments to be filed in certain cases," approved and took Gen. Stat. 714.
SEC. 236 a-d. effect Feb. 8, 1873. SEC. 236 e, f. "An act to provide for the retention of attached property pending a review on error of an order discharging the attachment." Approved and took effect Feb. 18, 1873. Gen. Stat. 715. If the undertaking is not given in the required time, the officer must deliver the property to party entitled thereto. 9 Neb. 148. The undertaking not being a part of the record its absence therefrom in the supreme court cannot be taken as proof that it was not in fact given. 9 Neb. 408. See also 12 Neb. 429. 15 Id. 17.
SEC. 237. It is only in these exceptional cases that an action can be maintained on a claim before it is 9 Neb. 297. 11 Id. 301.