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wrongfully obtained, not exceeding double the amount of the plaintiff's claim, stated in the affidavit.

5389 (920). The order of arrest shall be addressed and delivered, with a copy of the affidavit, to a constable or sheriff of the proper county; it shall state the names of the parties, the amount of the plaintiff's claim specified in the affidavit, to be signed by the justice of the peace issuing it, and shall require the constable or sheriff to arrest the defendant and bring him forthwith before said justice.

5390 (921). The officer receiving said order shall execute the same by forthwith arresting the defendant and delivering to him a copy thereof, and of the affidavit. And the defendant, so arrested, unless the claim of the plaintiff, specified in the affidavit, and costs of suit, are paid, or unless discharged from custody by order of the plaintiff, shall be taken by such constable or sheriff forthwith before the justice of the peace by whom said order of arrest was issued, and kept in custody until discharged by law.

5391 (922). Upon return of said order of arrest, executed in pursuance of the preceding section, the trial of said cause shall proceed, unless for good cause shown, upon the application of either party, or at the instance of the justice himself, the same shall be continued, as provided for in other cases before justices of the peace. And when the trial of said cause is continued for any period, the defendant, upon executing, with one or more sufficient sureties, a written undertaking to the effect that he will pay the amount of the judgment that may be rendered against him upon the final determination of the action, or upon depositing in the hands of the justice of the peace the amount of money mentioned in the order of arrest, and the probable amount of costs of suit, shall be forthwith discharged from custody; Provided, however, That in no case shall the defendant be detained in the custody of the officer, when said continuance has been for a period of more than forty-eight hours, unless said continuance has been made at the instance or with the consent of the defendant himself.

ARREST AFTER JUDGMENT.

5392 (923). On the judgment against the defendant in any civil suit before a justice of the peace, when the defendant is in the custody of the officer, as hereinbefore provided for, or if, after judgment against him, there is filed in the office of such justice an affidavit of the plaintiff, his authorized agent or attorney, made before any person competent to administer an oath, stating the amount of said judgment remaining unpaid, and establishing one or more of the particulars mentioned in section nine hundred and seventeen, said justice of the peace shall, unless otherwise ordered by the plaintiff, issue an execution, and accompany the same with an order for the arrest of the defendant.

5393 (924). Said order of arrest shall be addressed and delivered, with a copy of the affidavit, to the officer having said execution, and shall state the names of the parties, be signed by the justice issuing it, and state the amount of the judgment and costs unpaid, and shall require the officer, in case the same shall not be paid, or an amount of property of the defendant whereon to levy execution sufficient to satisfy the same cannot be found in his county, to arrest the defendant, if not already in the custody of the officer, and deliver him to the sheriff of the proper county, to be committed by him to the jail of the county, and kept in custody until discharged by law; Provided, however, That no such order of arrest be issued until the undertaking required by the nine hundred and nineteenth section of this code shall have been executed.

ATTACHMENT.

5394 (925). The plaintiff shall have an order of attachment against the property of the defendant, in a civil action before a justice of the peace, for the recovery of money before or after the commencement thereof, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing the nature of the plaintiff's claim, that it is just, the amount which the affidavit believes the plaintiff ought to recover, and the existence of some one or more of the following particulars: First-That the defendant, or one of the several defendants, is a foreign corporation, or is a non-resident of the state; or, Second-Has absconded, with intent to defraud his creditors; or, Third-Has left the country of his residence to avoid the service of a summons; or, Fourth-So conceals himself, that a summons cannot be served upon him; or, Fifth-Is about to remove his property, or a part thereof, out of the county, with the intent to defraud his creditors; or, Sixth-Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or, Seventh-Has property or rights in action, which he conceals; or, Eighth-Has assigned, removed, or disposed of or is about to dispose of his property, or a part thereof, with intent to defraud his creditors; or, Ninth-Fraudulently contracted the debt, or incurred the obligation for which suit is about to be, or has been, brought. When the defendant is a foreign corporation, or a non-resident of the state, the attachment shall not be granted, unless the claim is for a debt or demand arising upon contract, judgment, or decree.

5395 (926). When the ground of attachment is that the defendant is a foreign corporation, or a non-resident of the state, the order of attachment may be issued without an undertaking, but in all other cases the order of attachment shall not be issued by the justice until there has been executed in his office, by one or more sufficient sureties of the plaintiff, to be approved by the justice, an undertaking not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained.

Plaintiff need not sign undertaking. Action cannot be maintained on undertaking on ground that attachment was wrongfully issued unless it has been discharged. 27, 614 (43 N. W., 397).

5396 (927). The order of attachment may be be made to accompany the summons, or it may be issued at any time afterwards, before judgment; it shall be addressed and delivered to any constable or sheriff of the proper county, and shall require him to attach the goods, chattels, stocks or interests in stocks, rights, credits, moneys, and effects of the defendant in his county, not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable costs of the action, not exceeding fifty dollars.

5397 (928). The return day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons; when issued afterwards, it shall be executed and returned forthwith.

5398 (929). When there are several orders of attachment against the same person in the hands of the same officer, they shall be executed in the order in which they are received by said officer; he shall go to the place where the defendant's property may be found, and there, in the presence of two credible persons, declare that, by virtue of said order, he attaches said property at the suit of said plaintiff; and the officer, with two residents of the county, who shall be first sworn and affirmed by the officer, shall make a true inventory and appraisement of all property attached, which shall be signed by the officer and said residents, and re

turned with the order; when the property can be come at, he shall take the same into his custody, and hold it subject to the order of the justice.

5399 (930). The officer shall deliver the property attached to the person in whose possession it was found, upon the execution by such person, in the presence of the officer, of an undertaking to the plaintiff, with one or more sufficient sureties resident in the county, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person or persons so bound.

5400 (931). Different attachments of the same property may be made, and one inventory and appraisement shall be sufficient. The lien of the attachments shall be in the order in which they are served, and the subsequent attachments shall be served on the property, as in the hands of the officer, and subject to the prior attachments. The justice who issued the attachment having the priority of lien shall determine all questions as to the priority of liens on the property attached.

5401 (932). If the order of attachment is made to accompany the summons, a copy thereof, and the summons, shall be served upon the defendant in the usual manner for the service of a summons, if the same can be done within the county; and when any property of the defendant has been taken under the order of attachment, and it shall appear that the summons issued on the action has not been and cannot be served on the defendant in the county, in the manner prescribed by law, the justice of the peace shall continue the cause for a period not less than forty days nor more than sixty days, whereupon the plaintiff shall proceed for three consecutive weeks to publish, in some newspaper printed in the county, or if none be printed therein, then in some newspaper of general circulation in said county, a notice, stating the names of the parties, the time when, by what justice of the peace, and for what sum said order was issued, and shall make proof of such publication to the justice; and thereupon said action shall be proceeded with, the same as if summons had been duly served.

5402 (933). When the cause is continued as provided for in the preceding section, and it shall appear that any of the property taken under the attachment is live stock, or is of a perishable nature, the justice may issue his order, directing the officer having the custody thereof to dispose of the same as upon execution; and the moneys realized therefrom shall be paid over to the justice, and applied as other money realized from the sale of property attached is applied.

5403 (934). When the plaintiff, his agent or attorney, shall make oath in writing that he has good reason to believe, and does believe, that any person or corporation, to be named, and within the county where the action is brought, has property of the defendant (describing the same) in his possession, if the officer cannot come at such property, he shall leave with such garnishee a copy of the order of attachment, with a written notice, that he appear before the justice at the return of the order of attachment, and answer as provided in section nine hundred and thirty-six.

5404 (935). The copy of the order and the notice shall be served upon the garnishee, as follows: If he be a person, they shall be served upon him personally, or left at his usual place of residence; if a corporation, they shall be left with the president or other head of the same, or the secretary, cashier, or managing agent thereof.

5405 (936). The garnishee shall appear before the justice, in accordance with

the command of the notice, and shall answer, under oath, all questions put to him touching the property of every description, and credits of the defendant in his possession or under his control, and he shall disclose, truly, the amount owing by him to the defendant, whether due or not, and, in case of a corporation, any stock therein held by or for the benefit of the defendant, at or after the service of the notice.

5406 (937). A garnishee may pay the money owing to the defendant by him, to the officer having the order of attachment, or into the court. He shall be discharged from liability to the defendant for any money so paid, not exceeding the plaintiff's claim. He shall not be subjected to costs beyond those caused by his resistance of the claim against him; and if he disclose the property in his hands, or the true amount owing by him, and deliver or pay the same according to the order of the court, he shall be allowed his costs.

5407 (938). If the garnishee do not appear and answer, as required by section nine-hundred and thirty-six, the justice may proceed against him by attachment as for contempt.

5408 (939). If the garnishee appear and answer, and it is discovered on his examination that at or after the service of the order of attachment and notice upon him he was possessed of any property of the defendant, or was indebted to him, the justice may order the delivery of such property and the payment of the amount owing by the garnishee into the court, or may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff, by one or more sufficient sureties, to the effect that the amount shall be paid, or the property forthcoming, as the court may direct.

5409 (940). If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure is not satisfactory to the plaintiff, or if he fail to comply with the order of the justice to deliver the property and pay the money owing into the court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action in his own name, as in other cases; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff for the amount of property and credits of every kind of the defendant in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee. If the plaintiff proceed against the garnishee by action, for the cause that his disclosure was unsatisfactory, unless it appear in the action that such disclosure was incomplete, the plaintiff shall pay the costs of such action. The judgment in this action may be enforced as judgments in other cases. When the claims of the plaintiff in attachment are satisfied, the defendant in the attachment may, on motion, be substituted as the plaintiff' in the judgment.

Court should require garnishee to give undertaking required by statute; but failure to give would not discharge the garnishee. 9, 417 (2 N. W., 866).

5410 (941). Final judgment shall not be rendered against the garnishee until the action against the defendant in attachment has been determined; and if, in such action, judgment be rendered for the defendant in attachment, the garnishee shall be discharged and recover costs. If the plaintiff shall recover against the defendant in attachment, and the garnishee shall deliver up all property, moneys, and credits of the defendant in his possession, and pay all the moneys from him due as the court may order, the garnishee shall be discharged and the costs of the proceedings against him shall be paid out of the property and moneys so surrendered, or as the court may think right and proper.

5411 (942). If judgment be rendered in the action for the defendant, the attachment shall be discharged, and the property attached, or its proceeds shall be returned to him.

5412 (943). If judgment be rendered for the plaintiff, it shall be satisfied as follows: So much of the property remaining in the hands of the officer, after applying the moneys arising from the sale of perishable property, if any, whether held by legal or equitable right, as may be necessary to satisfy the judgment, shall be sold by order of the justice, under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue, in all respects as in other cases. Any surplus of the attached property or its proceeds shall be returned to the defendant.

5413 (944). The justice may order the officer to repossess himself, for the purpose of selling it, of any of the attached property which may have passed out of his hands without being sold or converted into money, and the officer shall, under such order, have the same power to take the property as he would have under an order of attachment.

5414 (945). If any of the property which has been attached be claimed by any person other than the defendant, the claimant may have the validity of such claim tried, and such proceedings must be had thereon, with like effect, as in case the property had been seized upon execution issued by the justice and claimed by a third person.

5415 (946). Where several attachments are executed on the same property or the same persons are made garnishees, the justice issuing the first order, served on the motion of any of the plaintiffs, may determine the amounts and priorities of the several attachments, and the proceeds shall be applied accordingly.

5416 (947). The officer shall return upon every order of attachment what he has done under it. The return must show the property attached and the time it was attached. When garnishees are served, their names, and the time each was served, must be stated. The officer shall also return, with the order, all undertakings given under it.

5417 (948). An order of attachment binds the property attached from the time of service, and the garnishee shall stand liable to the plaintiff in attachment for all property, moneys, and credits in his hands, or due from him to the defendant, from the time he is served with the written notice mentioned in section nine hundred and thirty-four; but when property is attached in the hands of a consignee or other person having a prior lien, his lien thereon shall not be affected by the attachment.

5418 (949). If the defendant or other person in his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff by one or more sureties resident in the county, to be approved by the justice, in double the amount of the plaintiff's claim, to be stated in his affidavit to the effect that the defendant shall perform the judgment of the justice, the attachment in such action shall be discharged, and restitution made of any property taken under it, or the proceeds thereof; such undertaking shall also discharge the liability of the garnishee in such action, for any property of the defendant in his hands.

5419 (950). If in any case where an order of attachment has been issued by a justice of the peace it shall appear from the return of the officer and from the examination of the garnishee, that no property, moneys, rights, credits, or effects of the defendant have been taken under the attachment, but that the defendant is the owner of an interest in real estate in the county, the justice before whom said action is pending shall, at the request of the plaintiff, forthwith certify his proceedings to the district court of the proper county, and thereupon the clerk

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