« AnteriorContinuar »
to seize and take into his possession the property of the defendant in his county not exempt from execution. (161.)
919. Order to different counties - Judgment, when had. 203, Orders of attachment may be issued to the Sheriff of any other county; and several of them may, at the option of the plaintiff, be issued at the same time or in succession; but the costs only of such as have been executed in whole or in part shall be recovered against the defendant, unless otherwise directed by the Court. The plaintiff shall not have judgment in any such action except in some one of the following cases, viz.:
First. When the defendant shall have been personally served with process.
Second. When property of the defendant shall have been attached in the county where the action is brought.
Third. When a garnishee shall have been summoned in the county where the action is brought, who shall be found to be indebted to the defendant, or to have property or assets in his hands subject to the attachment. (162.)
920. When may issue on Sunday. 204. An order of attachment may be issued and executed on Sunday, if the plaintiff will show in his affidavit that the defendant is about to abscond on that day, to the injury of the plaintiff. (163.)
921. Inventory and appraisement - Return. 205. The Sheriff shall proceed, with the assistance of a disinterested and credible householder of the county, to attach the lands and tenements, goods and chattels of the defendant subject to execution, and shall, with the assistance of the householder, make an inventory and appraisement thereof, and return the same with the order. (164.)
1. The proceedings must show that the property was attacked in the presence of and appraised by, a householder.-- McNamara v. Ellis, 14 Ind. 516.
2. Attachment proceedings as to regularity can not be attacked collaterally:— Dunn v. Crocker, 22 Ind. 324.
3. Delivery-bonds in attachment are purely statutory, and, as to defects, may be corrected under section 1221.- Moore v. Jackson, 35 Ind. 360. 922.. Lien of.
206. An order of attachment binds the defendant's property in the county subject to execution, and becomes a lien thereon from the time of its delivery to the Sheriff in the same manner as an execution. (165.)
1. Claims of creditors filing under in attachment are liens from the issue of the original writ, and take priority over judgments rendered afterward, although such judgments were recovered before the claims were filed.-- Shirk 2, Wilson, 13 Ind. 129.
2. The writ is a lien from the time it is placed in the Sheriff's hands.- Lowry v. Howard, 35 Ind. 170.
923. Personalty attached before realty-Removal and pursuit. 207. The defendant's personal property shall be first taken under an attachment; if enough thereof is not found to satisfy the plaintiff's claim and costs of the action, then his real estate. If, after an order of attachment is placed in the hands of the Sheriff, any property of the defendant is removed from the county, the Sheriff may pursue and attach the same in any county, within three days after the removal. (166.)
924. Delivery-bond. 209. The defendant, or other person having possession of property attached, may have the same or any part thereof
delivered to him, by executing and delivering to the Sheriff a written undertaking, with surety to be approved by the Sheriff, payable to the plaintiff, to the effect that such property shall be properly kept and taken care of, and shall be delivered to the Sheriff on demand, or so much thereof as may be required to be sold on execution to satisfy any judgment which may be recovered against him in the action, or that he will pay the appraised value of the property, not exceeding the amount of the judgment and costs (168.)
925. Right of property, how tried. 210. Whenever any person other than the defendant shall claim any property attached, the right of property may be tried as in cases of property taken on execution, and the claimant, having notice of the attachment, shall be bound to prosecute his claim as in such cases, or be barred of his right. (169.)
1. This section is only applicable to attachment cases in Justices' Courts.- Daviş v. Warfield, 38 Ind. 461.
926. Examination on oath. 211. The defendant or claimant of any attached property may be required by the Court to attend before it and give information, on oath, respecting the property. (170.)
927. Lien of consignee. 212. Goods attached in the hands of a consignee shall be subject to a lien for any debt due him from the consignor. (171.)
928. Bond for restitution. 213. If the defendant, or other person in his behalf, at any time before judgment, shall execute a written undertaking to the plaintiff, with sufficient surety to be approved by the Court, Clerk, or Sheriff, to the effect that the defendant will appear to the action, and will perform the judgment of the Court, the attachment shall be discharged and restitution made of any property taken under it or the proceeds thereof. (172.)
929. Sale of perishable goods — Notice. 214. When personal property attached is of a perishable nature or its keeping expensive, the Court may direct the Sheriff to sell it at public auction, upon reasonable notice. If the property is liable to immediate damage, the Sheriff, in vacation, may sell it, by giving ten days' notice, without an order of Court; and the proceeds of all sales shall be deposited with the Clerk." (173.)
930. Expenses for keeping. " 215. The Sheriff shall be allowed by the Court the necessary expenses of keeping the attached property, to be paid by the plaintiff and taxed in the costs. (174.)
931. Affidavit and summons for garnishee Return. 216. In all personal actions arising upon contract, express or implied, or upon a judgment or decree of any court, if at the time such action is commenced or at any time afterwards, whether a writ of attachment has been issued or not, the plaintiff, or any person in his behalf, shall file with the clerk an affidavit that he has good reason to believe, and does believe, that any person, naming him, has property of the defendant of any description in his possession or under his.control; or that such person is indebted to the defendant or has the control or agency of any property, 'moneys, credits, or effects; or that defendant has any share or interest in the stock of any association or corporation, and shall file therewith a written undertaking, payable to the defendant therein, with freehold surety, to be approved by said clerk conditioned that he will prosecute his proceedings in garnishment to effect and will pay to the defendant all damages he may sustain if such proceedings shall be wrongful and oppressive. The clerk shall issue a summons potifying such person, 'association or corporation to appear at the ensuing term of the court and answer as garnishee in the action. The summons shall be directed to the sheriff and served and returned by him in the same manner as a summons is served and returned in other cases. (175.) [As amended, 1897 S., p. 233.
In force March 8, 1897. 1. Any person indebted to the defendant may be garnished; and from the day he is served, he is accountable for the debt. - Cleneay v. R. R. Co., 26 Ind. 375.
2. The admission of a garnishee, that he is indebted, will sustain a judgment against him, as such.- McKee v. Anderson, 35 Ind. 17.
3. A party may be held as garnishee for a debt not yet due, and may be ordered to pay it when due.-- King v. Vance, 46 Ind. 246.
4. No recovery can be had against the garnishee, when he shows that before the service of the writ upon him he was bound to pay other debts equal to the amount of his debt to the defendant.- Chapin v. Jackson, 45 Ind. 153.
5. Before judgment can be rendered against a garnishee on commercial paper, it must be shown that the paper has matured, and that, at the time of maturing, it was held by the attachment-defendant, or was not in the hands of a bona fide holder. Cleneay v. R. R. Co., 26 Ind. 375. 6. A garnishee may set up failure or want of consideration in a note or contract.
7 Ball v. Bank, 39 Ind. 364.
932. Liability of garnishee. 217. From the day of the service of the summons, the garnishee shall be accountable to the plaintiff in the action for the amount of money, property, or credits in his hands, or due and owing from him to the defendant. "(176.)
933. Statement of garnishee and examination. 218. It shall be the duty of any officer or agent of an association or corporation, and of every other person summoned as a garnishee, when served, or within five days afterward, to furnish the Sheriff with a certificate of the number of shares or rights of the defendant in the stock of such corporation or association; or a description of the property held by such corporation, association, or person, belonging to or for the benefit of the defendant; or the amount of the debt owing to the defendant by such association, corporation, or person, whether due or not; which certificate shall be returned by the Sheriff with the summons. If such officer, agent, or person refuse to do so, he may be required by the Court to attend before it, and be examined, on oath, concerning the same; and obedience to the orders may be enforced by attachment (177.)
934. Judgment for failure to answer. 219. Whenever any garnishee, being duly summoned, fails to appear and make discovery as required by law, or fails to answer or demur to the matters set forth against him in the affidavit or additional complaint or interrogatories, such matters may be taken as confessed, or judgment entered by default, as the case may require ; or he may be examined under oath touching all the matters charged in the affidavit or additional complaint; and all such proceedings, pleadings, and process, shall be had, according to the practice in other cases, as shall be necessary to determine the rights of the parties and render a final judgment. (178.)
935. Arrest of absconding garnishee. 220. If any plaintiff, or other person in his behalf, shall file with the Clerk an affidavit that he fears that the garnishee will abscond before judgment can be had, with intent to defraud the plaintiff, and that he verily believes that the garnishee has moneys, things in action, goods, chattels, or effects of said defendant in his possession, or is indebted to said defendant, the Clerk shall issue an order of arrest against the garnishee, and hold him to bail therein as in a civil action. (179) 936. No judgment until main action determined.
221. Final judgment shall not be rendered against a garnishee until the action against the defendant is determined; and if the plaintiff fails to recover judgment either against the defendant or the garnishee, the garnishee shall be discharged and recover his costs. (180.) [As amended, 1897 S., p. 233. In force March 8, 1897.
1. A defendant in garnishment may appeal from the judgment against him.-- Burgess v. Matlock, 14 Ind. 475.
2. Payment by the garnishee is protection, even though the proceedings be erronec us and irregular. - Schoppenhast v. Bollman, 21 Ind. 280.
3. A writ of garnishment, duly issued and served, holds all the assets in the hands of the garnishee from the time of its service, for the original plaintiff and all creditors filing under.- Ryan v. Burkam, 42 Ind. 507; Taylor v. Elliott, 51 id. 375.
937. Proceedings not affected by return of "no property." 222. The return of “no property found" upon the order of attachment shall not affect the proceedings against the garnishee. (181.)
938. Costs as to garnishee. 223. If the plaintiff recover judgment against the defendant, and the garnishee deliver up to the Sheriff, before judgment against him, all the defendant's goods and chattels, or other effects in his possession subject to execution, or an inventory thereof, and pay to the Sheriff or into Court all moneys due from him or belonging to the defendant, the costs in the proceeding against the garnishee shall be paid by the defendant; but if the garnishee shall not appear, or, if appearing, shall refuse truly to confess the matter alleged, and, on the trial, the plaintiff shall recover judgment against him; or if he admit that he has moneys, credits, or effects belonging to the defendant in his hands, and shall refuse to pay or deliver the same as above provided, he shall pay costs. (182.)
939. Contract of garnishee, how performed. 224. A garnishee shall not be compelled in any case to pay or perform any contract in any other manner, or at any other time, than he would be bound to do for the defendant. (183.) [As amended, 1897 S., p. 233. In force March 8, 1897.
940. Garnishee paying, is discharged. 225. A garnishee may pay the money owing to the defendant by him to the Sheriff or into Court
, and shall be discharged from liability to the defendant for moneys so paid, not exceeding the plaintiff's claim. (184.)
941. Examination - Order of Court. 226. A garnishee, or officer of a corporation, summoned as a garnishee, at any time after being served with the summons five days, may be examined, in open Court, on oath;. and if it be discovered on such examination, that, at the time or after the service of the summons upon him, he or the corporation 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 any such indebtedness into Court, or the execution of a written undertaking by the garnishee, with sufficient sureties to be approved by the Court, payable to the plaintiff, to the effect that the indebtedness shall be paid or the property forthcoming, as the Court shall direct. (185.)
942. Collecting officer subject to garnishment. 208. Clerks of the Circuit and Superior Courts, Sheriffs, Justices of the Peace, Constables, and all other officers who may collect money by virtue of their office, and all executors, administrators, guardians, and trustees, shall be subject to garnishment at the suit of any creditor who has money or choses in action in the hands of such officer, executor, administrator, guardian, or trustee at the time of the service of such
garnishee process, in the same manner and to the same extent as other persons are subject to be garnished. [As amended, 1897 S., p. 234. In force March 8, 1897.
1. The unascertained shares of an estate in the hands of an executor or administrator are subject to garnishment.— Stratton v. Ham, 8 Ind. 84.
943. Claims of other creditors, how filed. 227. Any creditor of the defendant, upon filing his affidavit and written undertaking, as herein, before required of the attaching-creditor, may, at any time before the final judgment in the suit, make himself a party to the action, file his complaint, and prove his claim or demand against the defendant; and may have any person summoned 'as garnishee, or held to bail, who has not before been summoned or held to bail; and propound interrogatories to the garnishee, and enforce answers thereto, in like manner, as the creditor who is plaintiff. (186.)
1. Claims for alimony, adjudged upon and filed under, are proper and allowable against an attachment-debtor,— Farr v. Buchner, 32 Ind. 382. !
2. An attaching-creditor may contest the claims of other attaching-creditors, where. the principal debtor does not appear and defend. - Lytle v. Lytle, 37 Ind. 281.
944. Subsequent creditors not affected by dismissal. 228. A dismissal of his action or proceedings in attachment by the first attachingcreditor shall not operate as a dismissal of the action or proceedings of any subsequent attaching-creditor. (187.)
945. Appearance, discharge, and restitution. 229. Any defendant against whom an order of attachment has been issued
may, after appearing to the action, move to have the attachment discharged and restitution. awarded of any property taken under it; but an appearance to the action: shall not operate to discharge the attachment, unless a written undertaking be filed as required in section two hundred and thirteen (8 928). If the defendant appear, and judgment be rendered in favor of the plaintiff, and any part thereof remain unsatisfied after exhausting the property attached, such judgment shall be deemed a judgment against the defendant personally, and shall have the same force and effect as other judgments; and execution shall issue thereon accordingly for the collection of such residue. If the plaintiff's undertaking be insufficient, he shall have a reasonable time to file an additional one. (188.)
946. Effect of judgment for defendant. 230. If the judgment in the action is rendered for the defendant, the attachment shall be discharged, and the property attached, or its proceeds, returned to him. (189.)
947. Judgment for plaintiff - Enforcement. 231. If judgment in the action be rendered for the plaintiff
, or one or more of several plaintiffs, and sufficient proof be made of the goods, chattels, rights, credits, moneys, and effects in the possession of the garnishee, the Court shall also give judgment in favor of the plaintiff or creditors against the garnishee or the property of the defendant, or both, as the case may require; which may be: enforced by execution. (190.)
1. A verdict against an attachment-defendant, that he had conveyed his property with intent to cheat his creditors, does not authorize a sale without appraisement, un.. less the judgment so directs.-- Shirk v. Wilson, 13 Ind. 129.
948. Attached property, how sold. 232. After judgment for the plaintiff, or one or more of several plaintiffs, property attached and remaining unsold may be sold on execution, as in other cases. (191.)
949. Money, how distributed. 233. The money realized from the