« iepriekšējāTurpināt »
the exceptions be sustained, the court shall [rule the marshal to file] require a new undertaking, with sufficient surety, by a day to be named, in default of which he shall be liable to the plaintiff, on his official bond, for any loss sustained by the plaintiff through such default.
If the property attached be delivered to the defendant upon his executing an undertaking as aforesaid, and judgment in the action shall be rendered in favor of the plaintiff, it shall be a joint judgment against both the defendant and his surety or sureties in said undertaking for the appraised value of the property.
Co. v. S. Coal Co.,
Sec. 456. The attachment shall be levied on credits of Wash. L. & T. the defendant, in the hands of a garnishee, by serving the 26 D. C. App., latter with a copy of the writ of attachment and of the 149, 154. interrogatories accompanying the same, and a notice that any property or credits of the defendant in his hands are seized by virtue of the attachment, besides the notice. required by section four hundred and forty-six aforesaid; and the undivided interest of the defendant in a partnership business shall be levied on by a similar service on the defendant's partner or partners.
Sec. 457. The attachment may be levied upon debts owing by any person to the defendant upon judgment or decree by a similar service upon such party as in the preceding section directed; but execution may issue for the enforcement of such judgment or decree, notwithstanding the attachment, provided that the money collected upon the same be required to be paid into court to abide the event of the proceedings in attachment and applied as the court may direct.
It may also be levied upon money or property of the defendant in the hands of the marshal or coroner, and shall bind the same from the time of service, and shall be a legal excuse to the officer for not paying or delivering the same, as he would otherwise be bound to do.
The attachment may also be levied upon money or property of the defendant in the hands of an executor or administrator, and shall bind the same from the time of service; but if the executor or administrator shall make return to the writ that he can not certainly answer whether the defendant's share of the money or property in his hands will prove sufficient to pay the plaintiff's debt, no judgment of condemnation shall be rendered as against such executor or administrator until the passage by the orphan's court of his final or other account showing money or property in his hands to which the defendant is entitled. (32 Stat., Part I, p. 530.)
Sec. 1091; 31 D. C. App. 406.
Sec. 458. SALE OF PROPERTY.-The court may make all Sec. 1093. orders necessary for the preservation of the property attached during the pendency of the suit; and if the property be perishable, or for other reasons a sale of the same shall appear expedient, the court may order that the same be sold and its proceeds paid into court and held subject to its order on the final decision of the case.
Morimura v. Samaha, 25 D. C. App., 199.
Sec. 1095; 30 D. C. App., 582; 37 L. R., 261.
Sec. 1096; U. S. ex rel Robertson
D. C. App., 8, 10;
209;11 D.C. App.,
And if it shall seem expedient, the court may appoint a receiver to take possession of the property, who shall give bond for the due performance of his duties, and, under the direction of the court, shall have the same powers and perform the same duties as a receiver appointed according to the practice in equity.
Sec. 459. PLEAS BY GARNISHEE.-A garnishee in any attachment may plead any plea or pleas which the defendant might or could plead if he had appeared to the
Sec. 460. WHO MAY DEFEND.-Any defendant, any garnishee, any party to a forthcoming undertaking, or the officer who might be adjudged liable to the plaintiff by reason of such undertaking being adjudged insufficient, or any stranger to the suit who may make claim, as hereinafter provided, to the property attached, may plead to the attachment; and such pleas shall be considered as raising an issue without replication, and any issue of fact thereby made may be tried by the court or by a jury impaneled for the purpose, if either party desires it.
Sec. 461. TRAVERSE OF ANSWERS OF GARNISHEE. any garnishee shall answer to interrogatories that he has no property or credits of the defendant, or less than the amount of the plaintiff's claim, the plaintiff may traverse such answer as to the existence or amount of such property or credits, and the issue thereby made may be tried as provided in the preceding section; and in all such cases where judgment shall be entered for the garnishee the plaintiff shall be adjudged to pay to the garnishee, in addition to the taxed costs, a reasonable counsel fee. And if such issue be found for the plaintiff, judgment shall be rendered as if possession of the property or credits had been confessed by the garnishee.
Sec. 462. CLAIMANTS.--Any person may file his petition v. Barnard, 24 in the cause, under oath, at any time before the final dis2 D. C. App., 45 position of the property attached or its proceeds, except 29 D. C. App., where it is real estate, setting forth a claim thereto or an 163; 24 D.C. App., interest in or lien upon the same, acquired before the levy of the attachment; and the court, without other pleading, shall inquire into the claim, and, if either party shall request it, impanel a jury for the purpose, who shall be sworn to try the question involved as an issue between the claimant as plaintiff, and the parties to the suit as defendants, and the court may make all such orders as may be necessary to protect any rights of the petitioner.
Sec. 463. JUDGMENTS.-If the defendant in the action has been served with process, final judgment shall not be rendered against the garnishee until the action against the defendant is determined. If in such action judgment is rendered for the defendant, the garnishee shall be discharged and shall recover his costs, and the property attached or its proceeds shall be restored to the garnishee or to the defendant, as the case may require.
Sec. 464. If in such action judgment is rendered in favor Sec. 1097. of the plaintiff against the defendant, and it shall appear that the plaintiff is entitled to a judgment of condemnation of the property attached, the court shall proceed to enter such judgment in the attachment as in the following sections directed.
Sec. 465. If the action be to replevy specific personal property and the same has not been replevied, other property may be attached in said action to recover damages and costs, and if the same be adjudged, the proceedings shall be the same as herein provided in other cases of money claims.
Sec. 466. If, in any form of action, specific property has 28. D. C. App., been attached and remains under the control of court, judgment of condemnation of the same shall be entered, and so much thereof as may be necessary to satisfy the demand of the plaintiff shall be sold under fieri facias; or if the said property shall have been sold under interlocutory order of the court, the proceeds, or so much thereof as may be necessary, shall be applied to the plaintiff's claim by order of the court.
(Repealed.-32 Stat., Part I, p. 530.)
[If the property attached be an undivided interest in a partnership business, judgment of condemnation thereof shall be entered and the same shall be sold in the same manner as last aforesaid.]
Sec. 467. If a garnishee shall have admitted credits in his hands, in answer to interrogatories served upon him, or the same shall have been found upon an issue made as aforesaid, judgment shall be entered against him for the amount of credits admitted or found as aforesaid, not exceeding the plaintiff's claim, less a reasonable attorney's fee to be fixed by the court, and costs, and execution had thereon; but if said credits shall not be immediately due and payable, execution shall be stayed until the same shall become due; and if the garnishee shall have failed to answer the interrogatories served on him, or to appear and show cause why a judgment of condemnation should not be entered, judgment shall be entered against him for the whole amount of the plaintiff's claim, and costs, and execution had thereon.
Sec. 468. If the property attached has been delivered to or retained by a garnishee, upon his executing an undertaking as provided in section four hundred and fifty-four, judgment of condemnation of said property shall be rendered, asp rovided in section four hundred and sixty-six, and judgment shall also be entered that the plaintiff recover from the garnishee and his surety or sureties the value of said property, not exceeding the plaintiff's claim, said judgment to be entered satisfied if said property be forthcoming and delivered to the marshal, undiminished in value, within ten days after said judgment; otherwise, execution thereof to be had against said garnishee and his surety or sureties; and if said property shall be so
Sec. 1098; 33 D. C. App., 172.
Sec. 456, 460; Vogelsang v.
delivered to the marshal the same shall be sold by him under fieri facias to satisfy said judgment of condemnation.
Sec. 469. JUDGMENT TO PROTECT GARNISHEE.-Any judgment of condemnation against a garnishee, and execution thereon, or payment by such garnishee in obedience to the judgment or any order of the court, shall be a sufficient plea in bar in any action brought against him by the defendant in the suit in which the attachment is issued, for or concerning the property or credits so condemned.
Sec. 470. FRAUDULENT ASSIGNMENTS.— -If the ground America, 34 L. R. upon which an attachment is applied for be that the de724; 4 D. C. App., fendant has assigned, conveyed, or disposed of his property with intent to hinder, delay, or defraud his creditors, the attachment may be levied upon the property alleged to be so assigned or conveyed in the hands of the alleged fraudulent assignee or transferee, as a garnishee.
Sec. 471. The said garnishee may have the same benefit of section four hundred and fifty-one aforesaid as the defendant in the action; and if the court shall be of opinion, upon the hearing of the affidavits filed, that the attachment ought not to have issued or to have been levied on the property claimed by said garnishee, the said attachment may be quashed as to the said garnishee and the said levy set aside.
Sec. 472. If the said levy shall not be so set aside, the said garnishee may plead that he was a bona fide purchaser from the defendant for value without notice of any fraud on the part of said defendant, and such plea shall be held to make an issue, without any further pleading in reply thereto; and said issue may be tried as directed in section four hundred and sixty aforesaid.
Sec. 473. If said issue is found in favor of the said garnishee, judgment shall be rendered in his favor for his costs and a reasonable counsel fee. If said issue be found against such garnishee, but judgment in the action is rendered in favor of the defendant, the said attachment shall be dissolved, and said garnishee shall recover his costs.
Sec. 474. If the said issue is found against said garnishee and judgment in the action is rendered in favor of the plaintiff against the defendant, or the defendant, not being found, has failed to appear in obedience to the order of publication against him, if it shall appear upon the verdict of a jury that the claim of the plaintiff against said defendant is well founded, a judgment of condemnation of the property attached shall be rendered, as directed in section four hundred and sixty-four aforesaid.
Sec. 475. TRIAL OF ISSUES.-All issues raised by pleas to the attachment, in any case, may be tried at the same time as the issues raised by the pleadings in the action, or separately, as the convenience of the court may require.
Sec. 476. THIS ACT NOT TO PREVENT BILL IN EQUITY.Nothing herein contained shall be construed as depriving a judgment creditor of the right to file a bill in equity to enforce his judgment against an equitable interest in real or personal estate of the judgment defendant, or to have a conveyance of the real or personal estate by said defendant, made with intent to hinder, delay, and defraud his creditors, set aside.
Sec. 477. ATTACHMENT DOCKETS.-The clerk of said court shall keep an attachment docket, in which, as well as in the regular docket, shall be entered all attachments levied upon real estate, with a description, in brief, of the real estate so levied upon; and said attachments shall be indexed in the names of the defendant and of any person in whose possession said property may have been levied upon.