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in the following cases: First. Where a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts. Second. Where he is about to make such sale, conveyance, or disposition of his property, with such fraudulent intent. Third. Where he is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors, or of hindering and delaying them in the collection of their debts.
SEC. 238. [How granted.]-The attachment authorized by the last section may be granted by the court in which the action is brought, or by a judge thereof, or by the probate judge of the county; but before such action shall be brought, or such attachment shall be granted, the plaintiff, his agent, or attorney, shall make an oath, in writing, showing the nature and amount of the plaintiff's claim, that it is just, when the same shall become due, and the existence of some one of the grounds for attachment enumerated in the preceding section.
SEC. 239. [Refusal to grant order.]-If the court or judge refuse to grant an order of attachment, the action shall be dismissed, but without prejudice to a future action; and in all such actions application for an attachment must be made.
SEC. 240. [Order--Contents.]-The order of the court or judge granting the attachment shall specify the amount for which it is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim and the probable costs of the action. SEC. 241. [Undertaking.]--The order of attachment as granted by the court or judge, shall not be issued by the clerk until there has been executed in his office such undertaking on the part of the plaintiff as is directed by section two hundred.
I SEC. 242. [Judgment.-The plaintiff in such action shall not have judgment on his claim before it becomes due, and the proceedings on attachment may be conducted without delay.
SEC. 248. [Proceedings, how conducted.]-The proceedings in the first article of this chapter subsequent to section two hundred, shall, so far as they are applicable, regulate the attachments authorized by this chapter.
GARNISHMENT IN CERTAIN CASES.
SEC. 244. [In aid of execution.]-In all cases where an execution issued upon any judgment of a court of record, or of a justice of the peace, shall be returned by the officer in whose hands the same was placed for service, unsatisfied for want of sufficient property whereof to levy and collect the same, and the judgment creditor in such execution, his agent or attorney, shall file an affidavit in the office of the clerk of the court, or justice of the peace, from which said execution issued, that he has good reason to and does believe that any person or corporation (naming them) have property of and are indebted to the judgment debtor, the said clerk, or justice of the peace, shall issue a summons as in other cases, requiring such person or corporation to appear in court and answer such interrogatories as shall be propounded to him, it or them, touching the goods, chattels, rights and credits of the said judgment debtor in his, its or their possession or control.
SEC. 245. [Same-Liability of garnishee.]—The summons shall be made returnable, and the said persons or corporations shall be required to appear, as in ordinary cases of summons, and thereafter like proceedings shall be had therein, and said garnishees shall be held liable, in all respects, as in cases of garnishees before judgment.
SEC. 246. [Same-Proceedings.]-The summons shall be served as a summons in an original action is served; the said persons or corporations so sum
SEC. 238. Contents of affidavit. 6 Neb. 527. Issuance is matter of discretion with court. Id. And see 9 Neb. 297. Issued by clerk on sole ground that defendant is non-resident is void. 11 Neb. 301.
SEC 244. Judgment set aside, garnishee discharged. 6 Neb. 347. Return of sheriff. 8 Neb. 41. Failure of garnishee to appeal; order conclusive. Id. Personal judgment against garnishee not proper. 14 Neb. 241. Affidavit on belief sufficient. 14 Neb. 216.
moned shall be liable to the judgment creditor in said execution for all property, moneys and credits in his, its or their hands, or due from him, it or them to the judgment debtor in said execution, at the time of, and which may come into his its or their hands or control, after the service of said summons.
SEC. 247. [Irregularities not fatal.]—No proceedings against such garnishee or garnishees shall be quashed, or such garnishee or garnishees discharged, by reason of any informality or irregularity, merely, of the affidavit, or summons provided for in this article.
SEC. 248. [Disposition of property.]-In cases where the garnishee, in answering such interrogatories, shall disclose that he has property in his possession, or under his control, belonging to the defendant or defendants in execution, the court shall order the same to be taken and sold by the officers upon execution, as in other cases.
SEC. 249. [Payment of money.]-In cases where the garnishee, in answering such interrogatories, shall disclose that he is indebted to the defendant in execution the court shall order the garnishee to pay over the amount found to be due from the said garnishee to the defendant in execution, which amount shall be collected by execution, as in other cases, as near as may be, and such amount, when paid or collected, shall be credited on the original judgment, and the garnishee shall be credited for the amount so paid or collected.
SEC. 250. [Defined.]-The injunction provided by this code, is a command to refrain from a particular act. It may be the final judgment in an action, or may be allowed as a provisional remedy; and when so allowed it shall be by order. The writ of injunction is abolished.
SEC. 251. Causes for allowance.]-When it appears by the petition that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce great or irreparable injury to the plaintiff, or when, during the litigation, it appears that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. It may also be granted in any case where it is specially authorized by statute.
SEC. 252. [By whom and when granted.]--The injunction may be granted at the time of commencing the action, or at any time afterward, before judgment, by the supreme court or any judge thereof, the district court or any judge thereof, or, in the absence from the county of said judges, by the probate judge thereof,
SEC. 247. 14 Neb. 214.
SEC. 249. Order final. 7 Neb. 282. Not conclusive on garnishee. 16 Neb. 495. Not subject to collateral attack. 8 Neb. 42. Order for payment enforceable by execution only on unqualified admission of garnishee. 14 Neb. 242.
SEC. 251. Enjoining judgment. 9 Neb. 172, 324. Against public officers. 8 Neb. 21. Surface water. 8 Neb.46. Sale on execution. 2 Neb. 126, 283. 10 Neb.598. Against executor. 6 Neb. 503. Multiplicity of suits. 4 Neb. 149. 8 Id. 21. Cloud on title. 4 Neb. 150. 5 Id. 161. 10 Id. 188. Tax sale and illegal taxes. 7 Neb. 257. 5 Id. 401. 16 Id. 123, 136. 13 Id. 235. Judgment in replevin. 10 Neb. 598. 11 Id. 480. Erection of county bridges. 6 Neb. 213. Special assessment in cities. 4 Id. 336. 16 Id. 269. Note obtained by fraud. 15 Neb. 58. Public nuisance. 1 Neb. 337. 3 Id. 195. Purchaser at judicial sale. 10 Neb. 415. Injunction will not lie against tax, unless amount due is paid or tendered; nor on account of irregularities. 2 Neb. 422. 7 Id. 495. 10 Id. 75, 122, 166, 201. Nor to restrain execution of tax deed by purchaser at subsequent judicial sale. 8 Neb. 334. Nor to restrain sale on execution under a prior judgment at the suit of a tax purchaser. 13 Neb. 422. Nor to restrain collection of tax to pay warrants issued in payment of bridge. 13 Neb. 541. Nor to restrain taxes levied on lands on ground that they were not platted at time town was incorporated. 15 Neb. 608. Cases of trespass. 13 Neb. 565. Right of way for railroad. 13 Neb. 366. 14 Id. 390. Execution against endorser. 7 Neb. 77. Chattel mortgage sale. 4 Neb. 373. Attachment creditor. 14 Neb. 426. Repairing bridge. 6 Neb. 26. Mill dam. 10 Neb. 468. Payment for county bridge. 6 Neb. 203. Disposal of property by debtor before judgment. 12 Neb. 625. Removal of county offices. 15 Neb. 305. Removal of school house. 15 Neb. 514. Obstruction in alley. 15 Neb. 677. Keeping jacks and stallions. 16 Neb. 483. Opening road. Neb. 569. Removal of buildings from mortgage property. 16 Neb. 649.
SEC. 252. 7 Neb. 386. Duty of party to obey writ. 13 Neb. 138.
upon it appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto.
SEC. 253. [Preliminary hearing.]-If the court or judge deem it proper that the defendant, or any party to the suit, should be heard before granting the injunction, it may direct a reasonable notice to be given to such party to attend for such purpose at a specified time and place, and may, in the meantime, restrain Buch party.
SEC. 254. [Notice.]—An injunction shall not be granted against a party who has answered, unless upon notice; but such party may be restrained, until the decision of the application for an injunction.
SEC. 255. [Bond.]-No injunction, unless provided by special statute, shall operate, until the party obtaining the same shall give an undertaking, executed by one or more sufficent sureties, to be approved by the clerk of the court granting such injunction, in an amount to be fixed by the court or judge allowing the same, to secure to the party enjoined the damages he may sustain, if it be finally decided that the injunction ought not to have been granted.
SEC. 256. [Order-Contents.]-The order of injunction shall be addressed to the party enjoined, shall state the injunction, and shall be issued by the clerk. Where the injunction is allowed at the commencement of the action, the clerk shall endorse upon the summons, "injunction allowed," and it shall not be necessary to issue the order of injunction; nor shall it be necessary to issue the same, where notice of the application therefor has been given to the party enjoined. The service of the summons so endorsed, or the notice of the application for an injunction, shall be notice of its allowance.
SEO. 257. [Order-Service.]-Where the injunction is allowed during the litigation, and without notice of the application therefor, the order of injunction shall be issued, and the sheriff forthwith serve the same upon each party enjoined, in the manner prescribed for serving a summons, and make return thereof, without delay.
SEC. 258. [Takes effect, when.]-An injunction binds the party, from the time he has notice thereof, and the undertaking required by the applicant therefor is executed.
SEC. 259. [Several applications.]-No injunction shall be granted by a judge, after a motion therefor has been overruled on the merits of the application, by his court; and where it has been refused by the court in which the action is brought, or a judge thereof, it shall not be granted to the same applicant by a eourt of inferior jurisdiction or any judge thereof.
SEC. 260. [Enforcement-Breach.]-An injunction granted by a judge may be enforced as the act of the court. Disobedience of an injunction may be punished as a contempt by the court, or by any judge who might have granted it iL vacation. An attachment may be issued by the court or judge, upon being satisfied by affidavit of the breach of the injunction, against the party guilty of the same; and he may be required, in the discretion of the court or judge, to pay a fine not exceeding two hundred dollars, for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply with such requirement, or be otherwise legally discharged.
SEC. 261. [Additional security.]-A party enjoined may, at any time before judgment, upon reasonable notice to the party who has obtained the injunction, move the court for additional security; and if it appear that the surety in the undertaking has removed from the state, or is insufficient, the court may vacate the injunction, unless in a reasonable time sufficient security be given.
SEC. 262. [Affidavits on hearing.]-On the hearing of an application for an injunction, each party may read affidavits. All affidavits shall be filed.
SEC. 263. [Motion to vacate--Order recorded.]—If the injunction be
SEC. 255. As to action on injunction bond, see 7 Neb. 70. 8 Neb. 236. 9 Neb. 212.
granted without notice, the defendant, at any time before the trial, may apply, upon notice, to the court in which the action is brought, or any judge thereof, to vacate or modify the same. The application may be made upon the petition and affidavits upon which the injunction is granted, or upon affidavits on the part of the party enjoined, with or without answer. The order of the judge allowing, dissolving or modifying an injunction, shall be returned to the office of the clerk of the court in which the action is brought, and recorded and obeyed, as if made by the court.
SEC. 264. [Same-Affidavits--Evidence.1--If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the injunction was granted.
SEC. 265. [Injunction on counter-claim.]-A defendant may obtain an injunction upon an answer in the nature of a counter-claim. He shall proceed in the manner prescribed in this chapter.
SEC. 266. [Causes for appointment.]-A receiver may be appointed by the supreme court, or the district court, or by the judge of either, in the following cases: First. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of any party to the suit, when the property or fund is in danger of being fost, removed or materially injured. Second. In an action for the foreclosure of a mortgage, when the mortgaged property is in danger of being lost, removed or materially injured, or is probably insufficient to discharge the mortgage debt. Third. After judgment, or decree to carry the same into execution, or to dispose of the property according to the decree or judgment, or to preserve it during the pendency of an appeal. Fourth. In all cases provided for by special statutes. Fifth. In all other cases where receivers have heretofore been appointed by the usages of courts of equity.
SEC. 267. [Notice of application.]-No receiver shall be appointed except in a suit actually commenced and pending, and after notice to all parties to be affected thereby, of the time and place of the application, the names of the proposed receiver and of his proposed sureties, and of the proposed sureties of the applicant. Such notice shall state upon what papers the application is based, and be served upon the adverse party, or his solicitor, at least five days before the proposed hearing, and one additional day for every thirty miles of travel from the place of serving the notice to the place where the application is to be made, by the usually traveled route, or shall be published in the same manner as notices of the pendency of suits to non-resident defendants.
SEC. 268. [Sheriff to take possession of property.]-Should the delay occasioned by the giving the notice provided for in the last preceding section be hazardous to the rights of any party, the court or judge may, by order, direct the sheriff of the county in which such action is pending, to take temporary possession of the property, and shall appoint an early day for the hearing of the application, and if at such hearing the application is refused, restitution shall be made of the property to the party from whom the same was taken.
SEC. 269. [Bond.]-Every order appointing a receiver shall require the applicant to give a bond conditioned to pay all damages which the other parties to the suit, or any of them, may sustain by reason of the appointment of a receiver in case it shall be finally decided that the order ought not to have been granted, and shall also require the receiver to give a bond conditioned to faithfully discharge his duties as receiver and obey all orders of the court. The said bonds
SEC. 263. Order dissolving temporary injunction not final. lies from judgment making injunction perpetual. 12 Neb. 624. SEC. 266. Appointment of receiver discretionary. 9 Neb. 382. stated. 12 Neb. 565. 15 Id. 671.
1 Neb. 310. 8 Id. 17. 10 Id. 441. Appeal
Power of court of equity over receiver
shall each run to the defendant, and all adverse parties in interest and be for the use of any party to the suit, and be in a penal sum equal to double the value of the property in question, and be executed by two or more sureties to be approved by the court or judge making the appointment, and be filed in the office of the clerk of the district court; nor shall the same be considered executed until they are so filed. [Amended 1875, 36. Took effect Feb. 25, 1875.j
SEC. 270. [Appointment-When.]-If a plaintiff shall desire the appointment of a receiver at the commencement of the action, he shall pray such appointment in his petition. If the occasion for a receiver shall arise while the suit is pending, the application shall be made by a petition entitled in the cause, signed and verified by the applicant, and setting forth the facts and circumstances making such appointment necessary or proper.
SEC. 271. [Objections to receiver or sureties.-Any party to the suit may, upon the hearing of the application, show, by affidavit or otherwise, objections to the proposed sureties, and to the proposed receiver, and what is the value of the property to be taken possession of, and that a receiver ought not to be appointed. He may also nominate a person to be receiver, giving at the same time the names of his proposed sureties. No person shall be appointed receiver who is party, solicitor, counsel, or in any manner interested in the suit.
SEC. 272. [Order-Contents-Directions.]-Every order appointing a receiver shall contain special directions in respect to its powers and duties, and upon application of any party to the suit, after due notice thereof, such further directions may be made in that behalf by the court or judge as may in the further progress of the cause become proper.
SEC. 273. [How considered.]-Every receiver shall be considered the receiver of any party to the suit, and no others.
SEC. 274. [Appointment without notice void.]-Every order appointing a receiver without the notice provided for herein, shall be void, and every such order heretofore made, under which the appointee has not possessed himself of the property in question, shall be suspended until an order shall have been made, and the bonds executed and filed in accordance with the provisions of this chapter.
SEC. 275. (Decree-Reference-Appeal.]-When a decree shall be ren dered in a suit in which a receiver has been appointed, and such decree shall not finally determine the rights of the parties, any one of them may apply to the court for the possession of the property and proceeds thereof in the receiver's hands. If such application be resisted, the matter may be referred to a master, to take and report to the court the testimony of the parties. And on the coming in of said report, the court shall, by its order, award the possession of the property and the proceeds thereof to the party entitled thereto; and thereupon the receiver shall surrender the property and the proceeds thereof to such party. All orders appointing receivers, giving them further directions and disposing of the property, may be appealed to the supreme court in the same manner as final orders and decrees.
SEC. 276. [Contempt-Further order. Whenever in the exercise of their authority, the court or judge shall have ordered the deposit or delivery of money, or other things, and the order is disobeyed, the court or judge in addition to punishing such disobedience as for contempt may make an order requiring the sheriff to take the money or thing, and deposit or deliver it, in conformity with the direction of the court or judge. [Amended 1871, 112. Took effect March 4, 1871. G. S. 571.7
TITLE IX.-PROCEEDINGS BEFORE THE COURT.
SEC. 277. [How formed.]-Issues arise on the pleadings where a fact or conclusion of law is maintained by one party and controverted by the other. They are of two kinds. First. Of law. Second. Of fact.