Laws

It is no ground for Post Date: Sat, 2 Aug 2008 1:26:55 +0000
Oberlander v Confrey, 38 Ka N 462 But see Smith v Robinson, 64Cal387 1 Hoss v, Williams, 24 La An N 568; Palmer v Hightower ( La, 1895), 16 So Rep 560; Eaton v Wells, 18 Min N 410; Clarke v Meixsell, 29 Md 221; Peru Plow, etc, Co v Benedict, 24 Neb 340; Bisbee v Bowden, 55 N J L 69 SeeB By Traverse of the Affidavit, infr A Contra, Cloud v Smith, i Tex 611; Mayhew v Dudley, I Pi N (Wi S) 95 See also Sturman v Stone, 31 Iowa 115 2 Metts v Piedmont, etc, L In S Co, 17 S Car 120; Bates v Killiam, 17 S Car 553; Bear v Cohen, 65 N CaR511; Parsons v Sprague, 30 Hun ( N Y) 19; Rowles v Hoare, 61 Barb ( N Y) 266 Plea Praying Judgment of Both Decla- ration and Writ not Ba d A plea in abatement in an attachment suit is not bad on demurrer because it prays judgment both of the declaration and the writ, the matter set up in the plea being to the entire proceeding, and not to so much as is a proceeding in rent. Edmondson v Carnall, 17 Ark 284 And in South Dakota, under Comp Laws, section 5011, it was held that there might, in a motion for the dis- charge of an attachment, be united, as causes, that the affidavit is insufficient in form or substance and that it is not true in point of fa Ct Wilcox v Smith ( S Dak, 1893), 55 N W Rep 1107 Failure of Petition to State a Cause of Actio N If the petition does not state a cause of action against the defend- b BY TRAVERSE OF THE AFFIDAVIT Nature and Effect of the Trav- ers e A plea traversing the allegations in an affidavit for an attachment is, in point of fact, a plea in abatement, as it merely defeats the writ, leaving the merits of the cause untouche d 1 Must Deny All the Grounds of Attachment While the traverse of the affidavit must deny the existence of every statutory ground alleged therein, 2 it need not specifically and separately deny each ant, the court, in the absence of an amendment of the petition, or in the event of its being incapable of amend- ment, is justified in dissolving an at- tachment issued against the property of such Defendant Quinlan v Dun- ford, 28 Ka N 507; Cheyenne First Nat Bank v Sevan, 3 Wyoming 356; Carnahan v Gustine (Ok La, 1894), 37 Pa C Rep 594 But a motion to va- cate an attachment on the ground that the plaintiff has no cause of action will not be granted when the question is disputed by the affidavit S Kirby v Colwel LSi Hun ( N Y) 385; Walton v Chadwick (SupeRCt), 26 N Y Supp 789, 6 Mis C Rep ( N Y) 293 Motion to Dissolve should Describe Property Attache d A motion to dis- solve which fails to describe the prop- erty attached is insufficient and should be dismisse d Nelson v Hyde, 10 Mich 521 ; Osborne v Robbins, 10 Mich 277 But in an attachment against a partnership, a notice of a motion to dissolve by a nonresident part- ner sufficiently disclosed the grounds of the motion, where the papers in the case and the affidavits in support of the motion showed that the nonresident partner had no prop- erty in the state other than the part- nership property, although the motion did not specifically state that it was on the ground that his interest was not attachabl e Whitfield v Hovey, 30 S Car 117 Prior Action Pendin g The pending of a prior action, in which an attach- ment has been issued between the same parties for the same cause of action, is sufficient ground for the discharge of a subsequent attachment, there being nothing to show the ne- cessity of the second Attachment Smith-Frazer Boot, etc, Co v Derse, 41 Ka N 150 And see Harris v Lin- nard, 9 N J L 58 Suit Pending in Another Stat e Where the plaintiff brought suit in one state for a certain amount and took security therefor, and then, while the suit was there pending, in- stituted suit in another state on the same and an additional claim, and at- tached property of the defendant suf- ficient to cover both claims, it was held that, although an action in one state unsettled is no bar to an action on the same claim in another, yet the court would take notice of the pending suit, and retain the attachment on only so much property as would be sufficient to cover the additional clai M Trubee v Alden, 6 Hun ( N Y ) 75 See also article ANOTHER SUIT PENDING, Vo L I, p 762 Prior Suit in Federal Court. It is no ground for vacating an attachment that the plaintiff's claim has been de- cided adversely to him in an action in the U S District Court between the same partie S Davidson v Owens, 5 Min N 69 And in Seeley -v Missouri, etc, RCo, 39 Fed Rep 252, it was held that the fact that the plaintiff, before the institution of the attach- ment suit in the state court, had com- menced an equity suit upon the same cause of action in the federal court, which had proceeded to an interlocu- tory decree and an accounting, was not sufficient ground for dissolving the attachment, though it was a proper question for consideration on the tria L Two Attachment S Where two at- tachments were issued upon the same grounds, it was held admissible to dis- solve both writs on a motion to dis- solve the Attachment Wearne v France, 3 Wyoming 273 1 Boggs v Bindskoff, 23 111 66 See also Rees v Augustine, 24 Mo App 671; Hazeltine v Ausherman, 29 Mo App 451 2 Thus, where an attachment has been issued upon an affidavit alleging, among other things, that the defend- ant has secreted and is about to secrete his property, and the motion denies all the allegations except that of the secretion, it should be refuse d Hornick Drug Co v Lane, i S Dak fact stated in the affidavit ; a general denial in the usual form is sufficient.

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Keith v Stetter, 25 Ka Post Date: Sat, 2 Aug 2008 1:07:23 +0000
1 Must not put the Merits of the Cause in Issu e The merits of the cause cannot be questioned under an application to dissolve the attach- ment. 2 The defendant may, however, advance pertinent facts to explain how the transactions out of which the suit originated aros e 3 The Burden of Proof Upon traverse of the grounds of attach- ment alleged in the affidavit, the burden of sustaining the at- tachment is upon the plaintiff, 4 who is therefore entitled And where an affidavit is based upon three distinct statutory grounds, and, on a motion to dissolve, no testi- mony is adduced to controvert one of them, it is error to dissolve the at- tachment. Keith v Stetter, 25 Ka N 100 The Traverse should be a Complete De- nia L Thus, a plea which denies in the present tense the doing within two years of those acts which are relied upon as the grounds of attachment, has been held insufficient, as it covers only the two years preceding the time of filing, or at most the two years pre- ceding the day on which it is sworn t O McFarland v Claypool, 128 111 397 And see Walker v Welch, 13 111 674 Denial in the Alternativ e Although an affirmation in the alternative is bad, a denial in the alternative is goo d Thus, a petition for a dissolu- tion which "denies that he [the de- fendant] has assigned, disposed of, or concealed his property," etc, is suffi- cient.

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Where a person other than Post Date: Sat, 2 Aug 2008 0:56:20 +0000
Iowa First Nat Bank v Steele, 81 Mich 93 1 Armstrong v Blodgett, 33 Wi S 284; Ross v Fowler, 42 Mis S 293 But a plea in an attachment founded on an affidavit that the defendant is removing, and about to remove, his property from the state, to the injury, etc, is defective where it avers merely that he is not removing nor about re- moving his propert Y Walker v Welch, 13 HI- 674 2 Chouteau v Boughton, 100 Mo 406; Olmstead v Rivers, 9 Neb 234; Foley v Virtue, 8 Abb Pr, N S ( N Y C P I) 407 Thus, a motion by a junior attach- ing creditor of a foreign corporation to vacate the attachment of a senior attaching creditor on affidavit that the debt to the latter arose out of a con- tract void by the law of the defend- ant's domicile, was held insufficient, on the ground that it involved the merits of the actio N Johnson v Hard- wood Door, etc, Co (Supreme Ct), 29 N Y Supp 797 And see Quigley v McEvony, 41 Neb 73 ; Kohler v Agas- siz, 99Cal9 3 Hamilton v Johnson, 32 Neb 730 Thus, an attachment issued in an action to recover rent has been held subject to discharge on motion which shows that the rent is not due and un- paid, as alleged in the affidavit, not- withstanding a claim by the plaintiff that such a decision is really upon the merit S Clark v Montfort, 37 Ka N 756 " For," said the court, in Bun- drem v Denn, 25 Ka N 430, "while the court cannot inquire into the va- lidity or justice of the cause of action, yet it may inquire into the truthful- ness of the grounds of attachment set forth in the affidavit, and if this in- quiry incidentally refers to some of the allegations of the petition, this does not compel the court to refuse consideration of the motion or sus- pend the decision until the final trial of the caus e" 4 Georgia Oliver v Wilson, 29 Ga 642; Moore v Brewer ( Ga, 1894), 21 S E Rep 460; Kenney v Wallace, 87 Ga 724 Illinoi S Towle v Lamphere, 8 111 App 399; Ridgway v Smith, 17 111 33; Jaycox v Wing, 66 111 182; Hawkins v Albright, 70 111 87 Kansa S Champion Mac H Co v Updyke, 48 Ka N 404; Wichita Whole- sale Grocery Co v Records, 40 Ka N 119; McPike v Atwell, 34 Ka N 142; Mitchell v Carney, 41 Ka N 139; Becker v Langford, 39 Ka N 35 KentucKy Talbot v Pierce, 14B Mo N (Ky) 158 Michiga N Genesee County Sav Bank v Michigan Barge Co, 52 Mich to open and close the argument on the hearing of the motio N 1 c, FOR DEFECTS AND IRREGULARITIES By Motion the Most usual Metho d The most usual mode of defeating an attachment which has been unwarrantably obtained, or under which the proceedings are defective, is by motion to quash or dissolve the Attachment 2 The power and duty of the court to inquire into the misuse and abuse of its process rest on ancient and established principles, which are as applicable to writs of attachment as to any other VirginiaBurruss v Trant, 88 Va 980; Wright v Rambo, 21 Gratt ( Va) 158; Sublett W Wood, 76 Va 318 In New Jersey, where a motion to quash an attachment is supported by affidavits which, it is claimed, show that the attachment was illegally issued and therefore void, the burden of proof is on the movant. State v Quick, 45 N J L 308 In Louisiana some prima-facie proof must be made by the defendant that the facts sworn to in the affidavit are not true, in order to throw the burden of proof on the plaintiff Simons v Jacobs, 15 La An N 425; Brumgard v Anderson, 16 La 341; Offutt v Ed- wards, 9 Ro b ( La) 90 Motion by Party Other than Defend- ant. Where a person other than the defendant moves to dissolve the at- tachment on the ground of property or interest therein, without denying the truth of the grounds of the attach- ment or alleging irregularities in the proceedings, the burden of proof is upon him to prove the allegations in his motio N Standard Implement Co v Parlin, etc, Co, 51 Ka N 566 In Iowa, under section 3016 of the code, a third person claiming a lien upon or an interest in attached prop- erty does not proceed by motion to discharge the attachment, but by pe- tition under oath, setting forth the facts upon which his claim is founde d Ryan v Heenan, 76 Iowa 589; Tid- rick v Sulgrove, 38 Iowa 339 1 Jordan v Dewey, 40 Neb 639; Olds Wagon Co v Benedict, 25 Neb 375; Dolan v Armstrong, 35 Neb 339; Kendall Boot, etc, Co v August, 51 Ka N 53; McPike v Atwell, 34 Ka N 142 2 Illinoi S House v Hamilton, 43 111 185 Iowa Brace v Grady, 36 Iowa 352; Pittman v Searcey, 8 Iowa 352; Hol- loway v Herryford, 9 Iowa 353 Louisiana Read v Ware, 2 La An N 498; Slark v Broom, 7 La An N 337; Bonner v Brown, 10 La An N Md 334; Clarke v Meixsell, 29 Md 221; Dumay v Sanchez, 71 Md 508 Michiga N Bower v Town, 12 Mich 230 New York, Morgan v Avery, 7 Barb ( N Y) 656; Dickinson v Ben- ham, 12 Abb Pr ( N Y Supreme Ct) 158, 20 How Pr ( N Y) 343, ro Abb Pr ( N Y) 390, 19 How Pr ( N Y) 410; Manice v Gould, i Abb Pr, N S ( N Y Supreme Ct) 255; Brewer v Tucker, 13 Abb Pr ( N Y SupeRCt) 76; Gasherie z/ Apple, 14 Abb Pr ( N Y SupeRCt) 64 Ohio Harrison v King, 9 Ohio St 388 Pennsylvania Falk v Wurzburger, 3 Kulp (Pa) 321 South Carolina Harper v Scuddy, i McMul L ( S Car) 264; Metts v Pied- mont, etc, L In S Co, 17 S Car 120 Texa S Wright v Smith, 19 Tex 297; Messner v Lewis, 20 Tex 221 3 Branson v Shinn, 13 N J L 250 See also Morgan v Avery, 7 Barb ( N Y)6 5 6 In the case first cited an attachment had been issued on affidavit of plain- tiff's belief that the defendant had ab- sconded, and upon return of the writ the defendant moved to set it aside on affidavit S It was held that the origi- nal affidavit was not so conclusive on the court that it could not inquire into the grounds of plaintiff's belief, and, upon finding the allegation unfounded in fact, the attachment was set asid e Motion should Specify Grounds for Dis- solutio N Upon a motion to dissolve an attachment because it was irregu- larly issued, the grounds for dis- solving it should be specified in the motio N Cupit v Park City Bank (Utah, 1894), 37 Pac Rep 564; Freeborn t /Glazer,ioCa L337;Blair z/Cleveland, I Stew (Ala) 421; Loucks v Edmond- son, 18Cal204; Vaughn v Dawes, 7 Mont 360; Donnelly v Struven, 63 Ca L 183; Ferguson v Smith, 10 Ka N 396; Osborne v Robbins, 10 Mich 277; Windt v Banniza, 2 Wash 147 But where the affidavit upon which the writ rests is insufficient, a motion to quash should be sustained, even though the motion does not specifi- cally and with certainty point out any defects in the affidavit.

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Shadduck v Marsh, 21 Post Date: Sat, 2 Aug 2008 0:45:00 +0000
Fremont Cul- tivator Co v Fulton, 103 Ind 393 But see Marietta First Nat Bank v Bushwick Chemical Works, 17 Civ Pro Rep ( N Y Supreme Ct), 229, 6 N Y Supp 318 Affidavit in Support of Motio N A motion made on information and be- lief, without any affidavit, to dissolve an attachment, the affidavit for which is a positive declaration under oath of the facts therein alleged, is insufficient, and it is not error to exclude parol testimony offered by the defendant in support of the motio N Barnhart v Foley (Utah, 1895), 39 Pac Rep 823 Notice of Motion New York Where a motion to vacate is made under the New York Code Civ Pro, section 683, and founded upon the application and proofs upon which the warrant was granted, notice of the motion is not necessary; but where the motion is made upon affidavits, it must be upon notic e Thalheimer v Hays, 42 Hun ( N Y) 95 See also Sanborn v Eliza- bethport Mfg Co, 22 How Pr ( N Y Supreme Ct) 106 Service of Copy of Affidavit. In North Carolina when the defendant in attach- ment moves to vacate the same for causes appearing in his affidavit, it is not necessary to serve the plaintiff with a copy of such affidavit before the motion is mad e Palmer v Bosher, 72 N Car 371 In Indiana the motion to dissolve should be allowed only for defects ap- parent on the face of the proceeding S Cooper v Reeves, 13 Ind 53 And see Reed v Buck, 32 W N C (Pa) 204 Kule to Show Caus e In Alabama, if an attachment is issued upon a cause of action not warranted by the statute, the mode of reaching the ir- regularity is not by a motion to quash or a plea in abatement, but by a rule on the plaintiff to show cause why the attachment should not be dissolve d Jordan v Hazard, 10 Ala 221; Fisher v Consequa,2 Wash ( U S) 382; Rich z/ Thornton, 69 Ala 473; Brown v Coats, 57 Ala 353; Dryer v Abercrombie, 57 Ala 497; Johnston v Hannah, 66 Ala 127; Beckwith v Baldwin, 12 Ala 720; Drakford v Turk, 75 Ala 339; Gill v Downs, 26 Ala 670 See also Poutz v Reggio, 26 La An N 305 In New Jersey the affidavit of de- fendant as to residence is not alone sufficient to support a motion to quash, but a rule to show cause may be ob- tained on it. Shadduck v Marsh, 21 N J L 434- Demurrer not the Proper Remed Y Defects in the writ or want of the bond required (Brace v Grady, 36 Iowa 352), or that the petition for the attachment does not state sufficient ground therefor, should be raised by motion to dissolve, and not by demur- reRHunt v Collins, 4 Iowa 56 And see Tidrick v Sulgrove, 38 Iowa 339; Williams v Walker, n Iowa 77; Brace v Grady, 36 Iowa 352 Appea L The proper mode of obtain- ing redress for an irregularity in the issuing of an attachment is not by ap- peal, but by a special motion to dis- solv e Morgan v Avery, 7 Barb ( N Y)6 5 6 Hearing on Motion New York Merits of Cas e The general rule is that, on a motion to vacate an attach- ment, the court will not try the case and determine whether the plaintiff will ultimately succeed or not.

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1 d BY RELEASE Post Date: Sat, 2 Aug 2008 0:31:14 +0000
John- son v Hardwood Door, etc, Co, 79 Hun ( N Y)407 Motion without General Appearanc e The defendant may move to set aside an attachment without putting in a general appearance in the actio N Manice v Gould, i Abb Pr, N S ( N Y Supreme Ct) 255 of a plea in abatement, and, if successful, has the same effe Ct 1 davits in support of the Attachment Ives v Holden, 14 Hun ( N Y) 402 In Ohio, on the hearing of a motion to discharge an attachment by a jus- tice of the peace, if the motion be sup- ported by affidavits, counter affidavits may also be considered; and this rule applies where the property attached is the personal earnings of the debtor, claimed by him to be necessary to the support of his famil Y Baer v Otto, 34 Ohio St i I In North Carolina, upon a motion to vacate a warrant of attachment the court may consider affidavits and any other proper evidence adduced by the respective parties to establish or con- trovert the allegations of the affidavit upon which the warrant issued, and its findings of fact upon the same are con- clusiv e Hale v Richardson, 89 N CaR62 In Iowa, on motion to discharge an attachment (because the property was exempt) no pleading controverting the motion is required or allowe d See Joyce v Miller, 59 Iowa 761, where an answer was struck from the file S In South Carolina the code provides that if application to discharge an at- tachment be based upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs; but it has been held that " this manifestly means that the plaintiff may by affi- davits contradict or rebut the state- ments in the affidavits submitted by the defendant, and not that he may state new facts make a new cas e" Myers v Whiteheart, 24 S Car 196 1 Vaughn v Dawes, 7 Mont 360 In North Carolina it was early held that the proper remedy for irregulari- ties and wrongful issue of attachment is by plea in abatement, and not by motion to quas H Evans v Andrews, 7 Jones (N Car) 117; Cheny v Nel- son, 7 Jones (N Car) 141 But now see Clark v Clark, 64 N Car 150; Hale v Richardson, 89 N Car 62 In Alabama the procedure for tak- ing advantage of a failure to file an affidavit or a bond in an attachment suit is by plea in abatement, and not by motio N Free v Howard, 44 Ala 195; Free v Hukill, 44 Ala 197 And see Kirkman v Patton, 19 Ala 32; Jones v Pope, 6 Ala 154; Horton v Miller, 84 Ala 537; Wright v an application to set aside an attach- ment is made on the original papers no further or additional affidavits can be read in support of the Attachment Pach v Orr, 15 Civ Pro Rep (Buffalo SupeRCt) 176; Smith v Arnold, 33 Hun ( N Y) 484; Appleton v Speer (SupeRCt), 6 N Y Supp 511; Hill v Bond, 22 How Pr ( N Y Supreme Ct) 272; Sutherland v Brodner, n Ho W Pr, N S ( N Y Supreme Ct) 188; Thames, et C In S Co v Dimmick (Supreme Ct), 22 N Y Supp 1096; Trow's Printing, etc, Co v Hart, 60 Ho W Pr ( N Y C P I) 190 See also Buhl v Ball, 41 Hun ( N Y) 61 It seems that it is competent to read affidavits showing any change in the relation and condition of the parties since the attachment was grante d Pach v Orr, 15 Civ Pro Rep (Buffalo SupeRCt) 176 It is proper to permit an affidavit to be read identifying the affidavits on which the attachment was grante d Hallock v Van Camp (Supreme Ct), S N Y Supp 588 When the motion is based on the original papers alone, the statements in the affidavit for attachment will be taken as true, and if they establish a prima-facie case sufficient to support the warrant, in the absence of any satisfactory answer or explanation it should not be set asid e Rothschild F Mooney (Supreme Ct), 36 N Y St Rep 565 Waiver of Objectio N Where, upon motion to restore an attachment va- cated upon the original papers, the attachment debtor did not object to the reading of affidavits by the moving party, it was held that he could not raise the objection on appea L Pach v Orr, 15 Civ Pro Rep (Buffalo SupeR Ct) 176; Godfrey v Godfrey, 75 N Y 434- Motion on New Paper S But where the application to vacate the attach- ment is made upon new papers, the plaintiff may upon the hearing read affidavits in support of it. Hill v Bond, 22 How Pr ( N Y Supreme Ct) 272; Pach v Orr, 15 Civ Pro Rep (Buffalo SupeRCt) 176; New York, etc, Bank v Codd, n How Pr ( N Y Supreme Ct) 221 A motion made upon the original af- fidavits and also upon the verified complaint will let in additional affi- Appearance and Heading Waiver of Irregularitie S Where the defend- ant appears and denies the allegations of a defective affidavit, and tries it as if it were legal in its terms, and goes into a trial of the issue made by himself as to the ground of the attachment, thereby getting all the benefit that he could have had if the affidavit had been in strict conformity to law, and the result of the trial is adverse to him, he cannot obtain a reversal of the judgment because of the defect in the affidavit. 1 d BY RELEASE OF ATTORNE Y It has been held that an at- torney at law who has control of a suit has control of the remedy and the proceedings connected therewith, and may release an at- tachment of real or personal property, and that such release will Snedecor, 46 Ala 92; Johnston v Hannah, 66 Ala 127; Burt v Parish, 9 Ala 211 ; Lowry v Stowe, 7 Port (Ala) 483; Fleming v Burge, 6 Ala 373; Conklin v Harris, 5 Ala 213; Scott v Macy, 3 Ala 250; Planters', etc, Bank v Andrews, 8 Port (Ala) 404; Hall v Brazleton, 46 Ala 359; Murphy v Egger, 59 Ala 639; Tom- mey v Gamble, 66 Ala 469 In Wyoming the validity of an at- tachment is tried by motion to dis- charge supported by affidavits or oral evidence, and not by ple A Wearne v France, 3 Wyoming 273; Cheyenne First Nat Bank v Swan, 3 Wyoming 356 In Kansas the only procedure pre- scribed by statute for the discharge of an attachment is by motion and upon reasonable notice (Civ Code, 528).

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He cannot put the facts Post Date: Sat, 2 Aug 2008 0:17:03 +0000
No affidavit or verification of the mo- tion is required by the statute, nor has it ever been held that the filing of an affidavit or the verification of a mo- tion was essential to the raising of an issu e Kendall Boot, etc, Co v Au- gust, 51 Ka N 53 Where the defendant files affidavits* in support of his motion, it is not error to permit the plaintiff to file affidavits in support of the attach- ment. Johnson v Laughlin, 7 Ka N In Michigan the only mode by which a defendant in attachment can contest the truth of the facts s-tated in the affi- davit upon which the attachment was issued is by an application under the statute for a dissolution of the attach- ment. He cannot put the facts stated in the affidavit in issue by plea in Abatement Bower v Town, 12 Mich 230 This application must state the reasons for the dissolution of the at- tachment, Osborne v Robbins, 10 Mich 277; should show that the de- fendant's property was attached, de- scribing it, Osborne v Robbins, 10 Mich 277; Nelson v Hyde, 10 Mich 521; and must be verified by oath, Osborne v Robbins, 10 Mich 277 Unless the application for dissolution is followed with the proper citation, the whole proceeding is voi d Pear- son v Creslin, 16 Mich 281 Effect of Sustaining Flea in Abatement In Arkansas, on sustaining a plea in abatement of the writ and declaration in a proceeding by attachment for in- sufficiency of the affidavit, the proper judgment is to abate the entire suit.

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The giving of the bond Post Date: Sat, 2 Aug 2008 0:02:45 +0000
Hellman v Fowler, 24 Ark 235 So in Illinoi S Lawrence v Sted- man, 49 111 270 1 Ryon v Bean, 2 Mete (Ky) 137; De Stafford v Gartley, 15 Colo32 ; Gunn Hardware Co v Denison, 83 Mich 40; Hillyer v Biglow, 47 Ka N 473; Norton v Dow, 10 111 459; Hod- son v Tootle, 28 Ka N 317 See also article APPEARANCES, X I Attachment, Vo L I I, p 608 In Indian Territory, under the pro- visions of Mansf Di g, sections 381, 383, a defendant's motion to vacate an attachment is not waived by subse- quently filing affidavits denying the truth of the allegations of fact con- tained in the affidavit for attachment; but after this issue of fact has been tried his motion maybe decided in the iight of the result reached in the trial of such issu e Salmon v Mills, 4 U S App 101, 49 Fed Rep 333 Effect of not Moving to Dissolv e A failure to move to dissolve waives all irregularitie S Dunn v Crocker, 22 Ind 324; Spalding v Simms,4 Mete (Ky)28 5 . bind his client as between the latter and a party purchasing or taking a mortgage on the faith of such releas e 1 5 Dissolution by Giving Bond A BAIL BON d It is generally provided by statute that the attached property may be discharged from the attachment lien by executing in favor of the plaintiff, or,, in some states, the officer who executes the attachment, a bond, with sufficient security, conditioned upon the faithful perform- ance of whatever judgment shall be rendered in the actio N 2 Plaintiffs Privileg e Unless expressly otherwise provided by stat- ute, the right to give the bond belongs to the defendant alone; and as with him it is a privilege conferred, and not a duty en- joined, the plaintiff may never complain that it has not been give N 3 Effect of Bon d The effect of the execution of a sufficient bond is to completely dissolve the attachment and reduce the action to the level of an ordinary suit begun by summons, 4 and in some 1 Benson v Carr, 73 Me 76 2 See Taylor v Taylor, 3 Bush (Ky) 118; Campbell v Morris, 3Har M (Md) 535; Barr v Perry, 3 Gill (Md) 313; Dickerson v Simms, I N J L 199; Anonymous, 10 N J L 60; Borden v American Surety Co, 2 Pa DiSt Rep 245; Hailman v Wilson, I Pa L J 189; Duffy v Owings, i Pa L J 33; Jones v Peasley, 3 Greene (Iowa) 52; Selz v Belden, 48 Iowa Omly a Statutory Bond will dissolve an Attachment Moore v Allen, 55 Ga 67 One Undertaking will not be sufficient to discharge two attachments issued in separate action S Walton v Daly, 17 Hun ( N Y) 601 Certiorari and Bon d By suing out a writ of certiorari and giving bond an attachment is dissolve d Vanderhoof v Prendergast, 94 Mich 18, citing Bushey v Raths, 45 Mich 185, also explaining Treat v Dunham, 74 Mich 114 Order of Court not Necessar Y Under General Statutes, upon due approval and filing of a bond, the attachment is by law dissolved without any order of court to that effe Ct O'Hare v Down- ing, 130 Mas S 16 Security Insufficient. The giving of the bond will be no bar to the issuing of another attachment where it ap- pears that the surety is insolvent and the security insufficient.

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Letchford v Jacobs, 17 Post Date: Fri, 1 Aug 2008 23:51:30 +0000
Stewart v Dobbs, 39 Ga 82 Foreign Corporatio N An attachment against a foreign corporation may be dissolved by giving bai L Bushel v Commonwealth In S Co, 15 S R(Pa) 173 Garnished Property may be released by giving bon d Woodward v Adams, 9 Iowa 474 See article GARNISHMENT. 3 Hughes v Klingender, 14 La An N 52; Kling v Childs, 30 Min N 366 Privilege, not a Dtit Y Watson v Kennedy, 8 La An N 280; Clark v Wilson, 14 RI 13 Who may Give Bond Persons in Pos- sessio N Parties who do not show themselves to have been in actual or constructive possession of attached property as owners will not be allowed to bond it. Letchford v Jacobs, 17 La An N 79 Joint Debtor S Where the property of both and each of two joint debtors has been attached, bail must be given for both in order to obtain the release of the property of eitheRMagee v Callan, 4 Cranch ( C C) 251 Custom of Londo N " By the cus- tom of London, from which our usage is in a great measure derived, * * * his [the plaintiff's] whole claim against the funds in the hands of the garnishee may be defeated by the entry of bail to the actio N Bail may be entered by the garnishee at any time before satisfac- tion acknowledged, or even by a fourth person, who may be interested as as- signee of the debt owing by the gar- nishee to the defendant in the attach- ment.

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Shields v Barden, 6 Post Date: Fri, 1 Aug 2008 23:35:41 +0000
Lou d 260, 277; i Co M Di g 584; Ser g on Attac H 131" Per Lewis,, J, in Jackson's Appeal, 2 Grant's Ca S (Pa) 407 states this result will obtain even though it is not expressly so provided by statut e 1 Time for Giving Bon d Ordinarily the discharge of the property may be obtained by giving the bond at any time before judg- ment. 3 Discharging Part of Propert Y And a part as well as the whole of the property may be discharged by giving a proportionately sufficient undertakin g 3 When Bond Voi d Upon the vacation of the attachment the bond will be rendered void, 4 and a bond given to dissolve an attach- ment illegally issued will likewise be voi d 5 70 Pa St 248; People v Cameron, 7 111 468; Hill v Harding, 93 111 77; Morrison v Alphin, 23 Ark 136; Shir- ley v Byrnes, 34 Tex 625; Bunneman v Wagner, 16 Oregon 433 See Myers v Smith, 29 Ohio St 120; Philips v Hines, 33 Mis S 163; Drake Attac H The obligation created by the bond may be enforced by an assignee of the plaintiff for the benefit of creditor S Slosson v Ferguson, 31 Min N 448 Effect as Notic e The defendant by entering into bond and releasing the attachment has notice of the pendency of the suit, and is bound to appear and answer to the action, or suffer judg- ment by default upon the calling of the case, according to the practice of the court. Shields v Barden, 6 Ark 459 Appeal from Order of Discharg e In Minnesota an order discharging an at- tachment upon a bond given as secur- ity in place of the attachment is ap- pealabl e Gale -v Seifert, 39 Min N 171 See, generally, article APPEALS, Vo L I I, p 119 Estoppe L When parties intervene and bond property attached, they are estopped from denying that there is any property attache d Frost v White, 14 La An N 136 1 Fife v Clarke, 3 McCord ( S Car) 347; Reynolds v Jordan, 19 Ga 436; Drake Attac H 317 2 Garrett v Tinnen, 7 How (Mis S) But not after final judgment.

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Milburn v Marlow, 4 Greene Post Date: Fri, 1 Aug 2008 23:22:28 +0000
Wood- ward v Witascheck, 38 Ka N 760 In Delaware in cases of foreign at- tachment the defendant was allowed to dissolve the attachment by entering special bail at any time during the second ter M Blaney v Randel, 3 HarR(De L) 546 In Louisiana after sale of the prop- erty attached a release of the pro- ceeds may be obtained by giving bon d State v Richardson, 37 La An N 261 3 Ellsworth v Scott, 3 Abb N Ca S ( N Y Supreme Ct) 9 But see Royal In S Co v Noble, 5 Abb Pr, N S ( N Y C P I) 54- Attachment of Land and Cro P In Louisiana, where the land and crop of a defendant were attached, he was allowed to obtain a release of the lat- ter by giving sufficient bond therefor, while leaving the former subject to the Attachment "We can see no reason why the defendant should not be permitted to release any part of the property attached when he gives a sufficient bond, exceeding, by one half, its valu e Such a bond is a sufficient substitute for the property released, while for any surplus of the judgment the remaining property is retained in the sheriff's hand S The suggested difficulty of the defendant's substituting, for the property, a mul- titude of small bonds, is purely imagi- nary, because motiveless, and in view of the summary proceeding provided for the enforcement of such bonds, could serve no purpose except to mulct the defendant and his sureties in heavier cost S * * * We will not say that there might not be cases in which uch a right might be properly denied or restricted, as where the part sought to be released is so essentially con- nected with the rest that its severance would greatly impair the value of the residu e" Per Fenner, J, in Lallande v Crandell, 38 La An N 192 4 Bildersee v Aden, 10 Abb Pr, N S ( N Y Supreme Ct), 163; Fer- nan v Butcher, 113 Pa St 292 See Ferguson v Glidewell, 48 Ark 195 5 Shevlin v Whelen, 41 Wi S 88; Whether the Execution of the Bond will be a Bar to a Subsequent Motion to Dis- solve the attachment is a question which has been by no means uniformly decided in the several state S In Arkansas, Georgia, Idaho, Louisiana, New York, Oliio, and South Carolina the motion may be made although the bond has been given ;* but in Illinois, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missis- sippi, Missouri, North Dakota, Oregon, South Dakota, Texas, Wisconsin, and the Supreme Court of the United States it is held that, as the execution of the bond annihilates the attachment, it would be a useless act for the court to thereafter dissolve it, as there is nothing to dissolv e 2 b DELIVERY BON d Care must be taken to distinguish be- tween the bond just described and its operation and a mere Bruce v Conyers, 54 Ga 678; Pacific Nat Bank v Mixter, 124 U S 721; Butler v Coleman, 124 U S 721 Where no affidavit or attachment bond has been given, and no order of attachment issued, a bond given by the defendant to perform the judgment in the suit is voi d Williams v Ship- with, 34 Ark 529 1 Arkansa S Lehman v Berdin, 5 Dil L (U S) 340, citing Delano v Ken- nedy, 5 Ark 457; Chiidress v Fowler, 9 Ark 159; Ward v Carlton, 26 Ark 662 But giving a bond to discharge the property will be a waiver of the right to move to vacate the attach- ment on the ground that the attached property was not liabl e Morrison v Alphin, 23 Ark 136 Georgia Bruce v Conyers, 54 Ga 678 See Black v Scanlon, 48 Ga 12 Idaho Glidden v Whittier, 46 Fed Rep 437 Louisiana Myers v Perry, I La An N 372; Brinegar v Griffin, 2 La An N 154; Savage v Voorhies, 13 La An N 549; Avet v Albo, 21 La An N 349 See also Pailhes v Roux, 14 La 82; Baker v Hunt, i Martin ( La) 194; Quine v Maye S 2 Ro b ( La) 512 New York Dusseldorf v Redlich, 16 Hun ( N Y) 624; Garbutt v Hanff, 15 Abb Pr ( N Y Supreme Ct) 189; Bowen v Medina First Nat Bank, 34 Ho W Pr ( N Y Supreme Ct) 408; Claflin v Baere, 57 How Pr ( N Y Supreme Ct) 78; Rowles v Hoare, 61 Barb ( N Y) 266 Ohio See Fortman v Rottier, 8 Ohio St 553; Alexander v Jacoby, 23 Ohio St 358 South Carolina Bates v Killian, 17 S Car 553 Iowa Austin v Burgett, 10 Iowa 302 Kansa S See Endress v Ent, 18 Ka N 236 KentucKy Hazebrigg v Donald- son, 2 Mete (Ky)445; Inman z/ Strat- ton, 4 Bush (Ky) 445 Michiga N Paddock v Matthews, 3 Mich 18 But the giving by a third party of a bond to secure the release of property which has been attached in his hands will not preclude a defendant not a party to the bond from moving to quash the writ Pierce v Johnson, 93 Mich 125; Ripon Knitting Works v Johnson, 93 Mich 129 Minnesota Rachelman v Skinner, 46 Min N 196 Mississipp I Wharton v Conger, 9 Smed M (Mis S) 510 Missour I Payne v Snell,3 Mo 289 North Dakota Fox v Mackenzie, I N Dak 298 Orego N Bunneman v Wagner, 16 Oregon 433 South Dakota McLaughlin v Wheeler, i S Dak 497 But it seems that an order for dis- solution made by the court in such case would be only voidabl e Wyman v Hallock ( S Dak, 1893), 57 N W Rep 197 Texa S See Kennedy v Morrison, 31 Tex 207 Wisconsi N Dierolf v Winterfield, 24 Wi S 143 See Shevlin v Whelen, 41 Wi S 88 United States Supreme Court. Barry v Foyles, i Pet (U S) 311 See Huff v Hutchinson, 14 How (U S) 586; Butler v Coleman, 124 U S 721 delivery bond, by the execution of which latter the attached property is replevied from the sheriff, but still remains, in legal contemplation, in custodia legis, the bond being generally con- ditioned for the return of the property to the officer when legally demande d Its execution does not effect a dissolution of the attachment, 1 nor will it be a bar to a subsequent motion to dissolv e 2 6 Causes of Dissolution Arising Subsequent to the Attachment A BANKRUPTCY OR INSOLVENCY OF THE Defendant Under the Federal Bankruptcy Act an adjudication in bankruptcy and assignment of the bankrupt's estate ipso facto dissolved an attach- ment issued not more than four months prior to the institution of the proceedings in bankruptcy ; 3 and no order of dissolution by 1 People v Cameron, 7 111 468; Gass v Williams, 46 Ind 253; Aller- ton v Eldridge, 56 Iowa 709; Bell v Pearce, IB Mo N (Ky) 73; Kane v Pilcher, 7B Mo N (Ky) 652; Bell v Western River Im P, etc, Co, 3 Mete (Ky) 558; Perry v Somerby, 57 Me 552; Tyler v Safford, 24 Ka N 580, cit- ing Rutledge v Corbin, 10 Ohio St 478; Jones v Jones, 38 Mo 429; Drake on Attachments, 331-340 See Schuyler v Sylvester, 28 N J L 487 Surrender of Perso N In Illinois the filing by the defendant of a bond with sureties conditioned to surrender his person will not be sufficient to obtain a dissolution of an Attachment Peo- ple v Cameron, 7 111 468 Cost S On giving a delivery bond the defendant is entitled to recover the attached property without first pay- ing the costs incurred for keeping it. Milburn v Marlow, 4 Greene (Iowa) On the Dissolution of an attachment the delivery bond is rendered voi d Gass v Williams, 46 Ind 253 2 Montague v Gaddis, 37 Mis S 453; Tyler v Safford, 24 Ka N 580; Hilton v Ross, 9 Neb 406; Wilson v Sheperd, 15 Neb 15; Claflin v Steen- bock, 18 Gratt ( Va) 842 See Aller- ton v Eldridge, 56 Iowa 709 Contra, New Haven Lumber Co v Raymond, 76 Iowa 225; J I Case Threshing Mac H Co v Merril L 68 Iowa 540 3 See Weisenfeld v Mispelhorn, 5 W Va 46; Matter of Nelson, 9 Be N (U S) 238; Matter of Hull, 14 Blatchf .

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