« PreviousContinue »
Sec. 445. CAUSES.—In any action at law in the supreme court of the District for the recovery of specific personal property, or a debt, or damages for the breach of a contract, expressed or implied, if the plaintiff, his agent or attorney, either at the commencement of the action or pending the same, shall file an affidavit, supported by the testimony of one or more witnesses, showing the grounds of his claim and setting forth that the plaintiff has a just right to recover what is claimed in his declaration, and where the action is to recover specific personal property stating the nature and, according to affiant's belief, the value of such property and the probable amount of damages to which the plaintiff is entitled for the detention thereof, and where the action is to recover a debt stating the amount thereof, and where the action is to recover damages for the breach of a contract setting out, specifically and in detail, the breach complained of and the actual damage resulting therefrom, and also stating either, first, that the defendant is a foreign corporation or is not a resident of the District, or has been absent therefrom for at least six months, and has estate or debts owing to said defendant in said District; or, second, that the defendant evades the service of ordinary process by concealing himself or temporarily withdrawing himself from the District; or, third, that he has removed or is about to remove some or all of his property from the District, so as to defeat just demands against him; or, fourth, that he has assigned, conveyed, disposed of, or secreted, or is about to assign, convey, dispose of, or secrete his property with intent to hinder, delay, or defraud his creditors; or, fifth, that the defendant fraudulently contracted the debt or incurred the obligation respecting which the action is brought, the clerk shall issue a writ of attachment and garnishment, to be levied upon so much of the lands, tenements, goods, chattels, and credits of the defendant as may be necessary to satisfy the claim of the plaintiff: Provided, That the plaintiff shall first file in the clerk's office a bond, executed by himself or his agent, with security to be approved by the clerk, in twice the amount of his claim, conditioned to make good to the defendant all costs and damages which he may sustain by reason of the wrongful suing out of the attachment.
Sec. 446. SERVICE. -Every such writ shall require the marshal to serve a notice on the defendant, if he be found in the District, and on any person in whose possession any property or credits of the defendant may be attached, to appear in said court on or before the twentieth day, exclusive of Sundays and legal holidays, after service of such notice, and show cause, if any there be, why the property so attached should not be condemned and execution thereof had; and the marshal's return shall show the fact of such service. If the defendant is returned “Not to be found,” such notice shall be given by publication to the following effect, namely:
In the supreme court of the District of Columbia. A B, plaintiff, versus
At law. Numbered C
The object of this suit is to recover (here state it briefly) and to have judgment of condemnational certain property of the defendant levied on under an attachment issued in this suit to satisfy the plaintiff's claim. It is, therefore, this ....
ordered that the defendant appear in this court on or befor the fortieth day, exclusive of Sundays and legal holidays, after the day of the first publication of tbi order, to defend this suit and show cause why said condemnation should not be had; otherwise tht suit will be proceeded with as in case of default. By the court:
And every such order shall be published at least once a week for three successive weeks or oftener, or for such further time and in such manner as may be ordered by the court.
Sec. 447. INTERROGATORIES.-- In all cases of attachment the plaintif may exhibit interrogatories in writing in such form as may be allowed by the rules or special order of the court, to be served on any garnishee, concerning any property of the defendant in his possession or charge, or any indebtedness of his to the defendant at the time of the service of the attachment, or between the time of such service and the filing of his answers to said interrogatories; and the garnishee shall file his answers under oath to such interrogatories within ten days after service of the same upon him. In addition to the answers to written interrogatories required of him, the garnishee may, on motion, he required to appear in court and be examined orally under oath touching any property or credits of the defendant in his hands.
Sec. 448. ADDITIONAL ATTACHMENTS. -Upon the application of the plaintiff, his agent, or attorney, other attachments founded on the original affidavits may be issued from time to time, to be directed. executed, and returned in the same manner as the original, and with out further publication, against a nonresident or absent defendant, and without additional bond, unless required by the court.
Sec. 449. SUFFICIENCY OF BOND.-In case the defendant or any other person interested in the proceedings is not satisfied with the sufficiency of the surety or sureties or with the amount of the penalty named in the bond aforesaid, he may apply to the court for an order requiring the plaintiff to give an additional bond in such sum and with such security as may be approved by the court; and in case of the plaintiff's failure to comply with any such order the court may order the attachment to be quashed and any property attached or its proceeds to be returned to the defendant or otherwise disposed of, as to the court may seem proper.
Sec. 450. DEBTS NOT DUE. -A creditor may maintain an action and have an attachment against his debtor's property and credits, as aforesaid, where his debt is not yet due and payable, provided the plaintiff. his agent, or attorney shall file in the clerk's office, at the commencement of the action, an affidavit, supported by the testimony of one or more witnesses, as to the amount nd justice of the claim and the time when it will be payable, and alst. vetting forth that the defendant bas removed or is removing or intends to remove a material part of his property from the District with the intent or to the effect of defeating just claims against him should only the ordinary process of law be
Eised to obtain judgment against him, and shall also comply with the
condition as to filing a bond prescribed by section four hundred and forty-five aforesaid. The plaintiff in such case shall not have judg. ment before his claim becomes due; and in case the attachment is quashed the action shall be dismissed, but without prejudice to a future action.
Sec. 451. TRAVERSING AFFIDAVITS.-If the defendant in any case shall file affidavits traversing the affidavits filed by the plaintiff the court shall determine whether the facts set forth in the plaintiff's affidavits as ground for issuing the attachment are true, and whether there was just ground for issuing the attachment; and if, in the opinion of the court, the proofs do not sustain the affidavit of the plaintiff, his agent, or attorney the court shall quash the writ of attachment; and this issue may be tried by the court or a judge at chambers after three days notice. The said issue may be tried as well upon oral testimony
upon affidavits, and, if the court shall deem it expedient, a jury may be impaneled to try the issue.
Sec. 452. ON WHAT LEVIED.—The attachment may be levied on the lands and tenements, whether leasehold or freehold, and personal chattels of the defendant not exempt by law, whether in the defendant's or a third person's possession, and whether said defendant's title to said property be legal or equitable, and upon his credits in the hands of a third person, whether due and payable or not, and upon his undivided interest in a partnership business. Every attachment shall be a lien on the property attached from the date of its delivery to the marshal, and if different persons obtain attachments against the same defendant the priorities of the liens of said attachments shall be according to the dates when they were so delivered to the marshal.
Sec. 453. HOW LEVIED. —The attachment shall be sufficiently levied on the lands and tenements of the defendant by said property being mentioned and described in an indorsement on said attachment, made by the officer to whom it is delivered for service, to the following effect, namely:
Levied on the following estate of the defendant, A B, to wit: (Here describe) this.. day of...
And by service of a copy of said attachment, with said indorsement, and the notice required by section four hundred and forty-six aforesaid on the person, if any, in possession of said property.
Sec. 454. The attachment shall be levied upon personal chattels by the officer taking the same into his possession and custody, unless the defendant shall give to the officer his undertaking, to be filed in the cause, with sufficient security, to the following effect, namely:
A B, plaintiff,
versus At law. Numbered –. C D, defendant. S The defendant and.
his surety, in consideration of the discharge from the custody of the marshal of the property seized by him, upon theiattachment sued out against the defendant, on the .....day of.... anno Domini nineteer Tundred.
in the above entitled cause, appear, and submitting to the jurisdiction of the mirt, hereby undertake, for themselves and each of them, their and each of their heirs, executors, alı suministrators, or successors or assigns, to abide by and perform the judgment of the court in the pren ises in relation to said property, which judgment may be rendered against all the parties whose names are hereto signed. (Signed)
Or unless the person in whose possession the property is attached shall give to the officer, to be filed in the cause, an undertaking in the following form or to the same effect, namely: A B, plaintiff, versus
At law. Numbered CD, defendant.
Whereas by virtue of an attachment issued in the above-entitled suit, the United States marshal for the District of Columbia has attached certain property in the hands of the undersigned E F, as garnishee, namely, (here describe) of the value of dollars; and now, therefore, the said EF and GH, as surety, appearing in said suit, and submitting to the jurisdiction of the court, hereby undertake for themselves and each of them, their and each of their heirs, executors, and administrators to abide by the judgment of the court in relation to said property, and that if the same shall be condemned to satisfy the claim of the plaintiff, judgment may be rendered against all of the undersigned for the value of said property and costs, to be executed against them, and each of them, unless said property shall be forthcoming to satisfy the judgment of condemnation, (Signed)
EF. [[SEAL. And in either of said cases the attachment shall be sufficiently levied by the taking of the undertaking, as above provided for; and in the latter case the recital of the undertaking shall contain a sufficient description of the property and its value, which value shall be ascertained by an appraisement to be made under direction of the officer and returned with the writ.
Sec. 455. RELEASES.-Either the defendant or the person in whose possession the property was may obtain a release of the same from the attachment, after it has been taken into the custody of the marshal and the writ has been returned, by giving the undertaking required of him as aforesaid, with security to be approved by the court.
The plaintiff may except to the sufficiency of any undertaking accepted as aforesaid by the marshal and, if 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 sus tained 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.
Sec. 456. The attachment shall be levied on credits of the defendant, in the hands of a garnishee, by serving the latter with a copy of the writ of attachment and of the 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 pay. ing 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.
Sec. 458. SALE OF PROPERTY.—The court may make all 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.
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 tbe 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 suit.
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.-If 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 judg; ment 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 in the cause, under oath, at any time before the final disposition of the property attached or its proceeds, except where it is real estate, setting forth a claim thereto or an 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.
Soc. 463. JUDGMENTS.—If the defendant in the action has been