chapter 29 attachment and garnishment civil arrest claim

Chapter 29

Attachment and Garnishment Civil ArrestClaim and Delivery Replevin

DEFINITIONS

29010 Provisional remedies

ATTACHMENT AND GARNISHMENT

29110 When attachment lies

29120 Issuance of writ affidavit of plaintiff29130 Undertaking of plaintiff29140 Property attachable29150 Plaintiff deemed purchaser in good faith29160 Contents of writ to whom writ directed

issuance of several writs

29170 Manner of executing writ29175 Attachment or levy upon interest of heir

or legatee in personalty of decedentsestate prior to distribution

29180 Return of writ inventory29190 Filing sheriffs certificate on attachment of

real property lien29200 Sale of perishables or livestock custody of

property29210 Adverse claims to attached personal property29220 Redelivery bond29230 Defense to action upon redelivery bond29240 Undertaking to discharge attachment29250 Form of undertaking29260 Motion to discharge attachment amendment

of affidavit or undertaking29270 Liability of garnishee delivery of attached

property to sheriff by garnishee29280 Certificate of garnishee order for examina

tion of garnishee29290 Contents of order designation of parties29300 Restraining order against garnishee29310 Allegations and interrogatories to garnishee29320 Answer of garnishee29330 Compelling garnishee to answer judgment

for want of answer29340 Exception or reply to answer29350 Trial29360 Judgment against garnishee29370 Execution against garnishee29380 Sale after judgment against defendant judg

ment on undertaking for discharge ofattachment

29390 Judgment for defendant29400 Release of garnishment

CIVIL ARREST

29510 Civil arrest in law and equity29520 When civil arrest lies29530 Proceeding to obtain arrest29540 Motion to vacate writ of arrest29550 Proceedings on motion to vacate29560 Discharge on bail undertaking29570 Delivery of copy of undertaking to plaintiff

acceptance or rejection of bail29580 Notice of justification of bail new under

taking29590 Procedure of justification29600 Determination of sufficiency of bail29610 Qualifications of bail29620 Surrender of defendant29630 Arrest of defendant by bail29640 Manner of proceeding against bail29650 Exoneration of bail29660 Discharge on deposit of money29670 Payment of deposit by sheriff into court29680 Substituting bail for deposit29690 Disposition of money deposited29700 Liability of sheriff29710 Proceedings against sheriff29720 Liability of bail to sheriff29730 Maintenance of arrested defendant29740 Discharge of defendant for nonpayment of

maintenance

CLAIM AND DELIVERY REPLEVIN

29810 Nature of the remedy29820 Affidavit29830 Requisition to sheriff29840 Undertaking of plaintiff proceedings of

sheriff

29850 Exception to and justification of plaintiffssureties qualifications

29860 Defendantsundertaking for return of property when property to be delivered toplaintiff

29870 Justification of defendants sureties qualifications

29880 Claim of property by third person29890 Concealed property29900 Custody and delivery of property29910 Return of proceedings by sheriff

CROSS REFERENCES

Jurisdiction acquired by court on allowance of a District court attachment in 46080 46480provisional remedy 15030

29110Executors and administrators attachment against

121100Attachment of insurer prior to and during liquida

tion proceedings prohibited 751090 Justicescourt attachment in 52210197

CH 29 CROSS REFERENCES

Property in custody of the law no garnishment of23190

Tax on personal property attachment in action tocollect 311455

Vessel attachment of for damage to person orproperty 783330

29120

Cross examination of affiant 45130Filing of papers 16860

29130

Deposit in lieu of bond 22020 to 22070Undertaking may be executed by surety company

747080

29140

Attachment of human remains prohibited 97110Attachment of property of insolvent state bank or

trust company possession by superintendent asbar 711430 711610

Attachment of shares of stock 58130

29150

Priority of attachment of a vessel 78336029170

County treasurer as garnishee of certain creditorsof licensee 698060

Indemnity bond to sheriff by plaintiff in execution23310

Public officers as garnishees 2319029210

Trial by sheriffsjury 29320 to 2935029220

Deposit in lieu of bond 22020 to 22070Redelivery of attached vessel 783340

29250

Deposit in lieu of bond 22020 to 2207029280

Garnishment of insurer prior to and during liquidation proceedings prohibited 751090

Garnishment upon writ of execution 2375029300

Injunction and other aids in attachingNegotiable documents of title 75400Negotiable warehouse receipts 74260Stock certificates 58140

Receivership at instance of attaching creditor31020 31040

29370

Executions in general 23410 to 2343029380

Executing writ of execution when property has beenattached 23410 23420

Judicial sale of registered land 94530

29520

District court writ of arrest in 46080Execution against person of debtor 23080 23090Executors and administrators arrest in actions

against 121100

Imprisonment for debt prohibited except in case offraud or absconding debtor Const Art I 19

Judgment debtor arrest of 23740Justices court writ of arrest in 52210 52230

52240

Privilege from arrest ofCongress member of US Const Art I 6Elector Const Art II 13

Legislator Const Art IV 9

Military forces of the state member of 397300Seaman or officer of a seagoing ship 783560Witness 44090

Usurper arrest in action by person entitled to holda public office 30550

29530

Cross examination of affiant 45130

Filing of papers 16860Service of process on Sunday 16830

29560

Deposit in lieu of bail or bond 22020 to 22070

29660

Deposit in lieu of bail or bond 22020 to 22070

29700

Liability of arresting officer for arrest in violationof privilege ofSeaman or officer of a seagoing ship 783560Witness 44090

29810

Chattel mortgagees right to claim and delivery86490

District court claim and delivery in 46080Judgment in action for recovery of specific prop

erty 18110Justices court claim and delivery in 52210

29820

Cross examination of affiant 45130

29840


29860


29880


193

ATTACHMENT GARNISHMENT ARREST REPLEVIN 29170

DEFINITIONS

29010 Provisional remedies The proceedings provided for in this chapter shall beknown as provisional remedies

29020 to 29100 Reserved for expansion

ATTACHMENT AND GARNISHMENT

delay or defraud any creditor of the defendant

29130 Undertaking of plaintiff The plainiff whall file with the clerk his undertakingrith one or more sureties in a sum not lesshan 100 and equal to the amount for whichhe plaintiff demands judgment and to theffect that the plaintiff will pay allcosts that

may be adjudged to the defendant and alldamages which he may sustain by reason ofhe attachment if the same be wrongful orI sufficient cause not exceeding theurn specified irithe undertaking With the

U the plaintiff shall also file theaffidavits of the sureties from which affidavits it must appear that such sureties arequalified and that taken together they areV double the amount of the sum speciied in the undertaking over all debts andiabilities and property exempt from execuion Anyperson not gyialified to become bail

U an arrest is not qualified to becomeurety ari undertaking for an attachment29140 Propertyattachable The rights or

hares which the defendant may have in thetock of any association or corporation to

gether with the interest and profits thereonand all other property in this state of the deendant not exempt from execution shall

be liable to be attached

29150 Plaintiff deemed purchaser in goodaith From the date of the attachment untilt bedischarged or the writ executed theplaintiffas against third persons shall bedeemed a purchaser in good faith and for a y

valuable consideration othe property atached subject to thy conditions prescribedn ORS 29190 as to reap property

29160 Contents of writ to whom writdirected issuance of several writs The writhall be directed tg the sheriff of any countyn whichproperty of the defendant may bend shall requirehim to attach and safely

keep allthg property of the defendant withinhis county not exempt from execution or somuch thereof as may be sufficient to satisfyhe plaintiffs demand the amount of whichhall be stated in conforii7ity with the com

Plaint together with costs and expenses Sevral writs may be issued at the same timeo the sheriffs of different counties

29110 When attachment lies 1 Theplaintiff at the time of issuing the summonsor any time afterwards may have the prop t

erty of the defendant attached as security forthesof any judgment that may be s

recovered unless the defendant gives securityto pay such judgment as provided in ORS29120 to 29400 in the following cases

a An action upon a contract expressedor implied for the direct payment of money

fwhen the contract is not secured by mortgagelien or pledge or when it is so secured but

1

such security has been rendered nugatory by t

act of the defendant orwhen the defendantis a nonresident of this state s

b An action against a defendant riotresiding in this state to recover a sum of s

money as damages for breach of any con stract expressed or implied other than a contract of marriage

c An action against a defendant not f

residing in this state to recover a sum ofmoney as damages for injury to property inthis state f

2 The provisions of ORS 29110 to 29400 i

shall apply with equal effect to all caseswhere a defendant pleadsacounterclaim arising out of any cause entitling a plaintiff toattach the property of a defendant t

29120 Issuance of writ affidavit of plaini

tiff A writ of attachment shall be issued bythe clerk of the court in which the action is

pending whenever the plaintiff or anyone in s

his behalf files the undertaking specified in i

ORS 29130 and makes and files an affidavit a

stating1 In every case facts which bring the

case within one of the classes of cases specified in ORS 29110 t

2 In an action upon a contract that the s

sum for which the attachment is asked is abonafide existing debt due and owing from e

the defendant to the plaintiff and specifying tthe amount of such indebtedness above alllegal setoffs and counterclaims

3 In an action for damages the amountof damages

4 In every case that the attachment isnot sought nor the action prosecuted to hinder

if

F 29170 Manner of executing writ Thesheriff to whom the writ is directed and de

livered shall note upon the writ the date ofsuch delivery and shall execute the writwithout delayas follows

1 To attach real property lie shall make19

29175 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS

a certificate containing the title of the causethe names of the parties to the action a description of such real property and a statement that the same has been attached at the

suit of the plaintiff and deliver the certificateto the county clerk of the county in which theattached real estate is situated

2 Personal property capable of manualdelivery to the sheriff and not in the possession of a third person shall be attachedby taking it into his custody

3 Other personal property shall be attached by leaving a certified copy of the writand a notice specifying the property attachedwith the person having possession of thesame or if it be a debt then with the debtoror if it be rights or shares in the stock of anassociation or corporation or interests orprofits thereon then with such person orofficer of the association or corporation as asummons is authorized to be served uponprovided that if it be shares of corporatestock for which a certificate is outstandingthe requirements of ORS 58130 must be satislied However debts owing to the defendanto a bank or trust company maintainingbranch offices or credits or other personalproperty whether or not capable of manualdelivery belonging to the defendant and inthe possession of or under the control of suchn bank or trust company shall be attachedby leaving a certified copy of the writ andthe notice with the president vice president treasurer secretary cashier or assistant cashier of the bank or trust companyat the office or branch thereof at which theaccount evidencing such indebtedness is carried or at which the bank or trust companyhas credits or other personal property belonging to the defendant in its possession or underits control or if no such officers be foundat such office or branch by leaving a certifiedcopy of the writ and the notice with the manager or assistant manager of such office orbranch and no attachment shall be effectiveas to any debt owing by such bank or trustcompany if the account evidencing such indebtedness is carried at an office or branch

thereof not so served or as to any credits orother personal property in its possession orunder its control at any office or branchthereof not so served except that such serviceon the head office of any such institution shallbe effective service upon all offices orbranches thereof located in the same cityas the head office

29175 Attachment or levy upon interestof heir or legatee in personalty of decedentsestate prior to distribution 1 Except asprovided in subsections 2 and 3 of thissection the interest of any person in personal property belonging to the estate of adecedent whether as heir or legatee maybe attached or levied upon by serving thepersonal representative of the decedent witha copy of the writ of attachment or execution and a notice that said interest is at

tached or levied upon Such attachment orlevy shall not impair the powers of the personal representative over such personal property for the purposes of administration A

copy of the writ and notice shall also befiled in the office of the clerk of the court

in which the estate is being administeredThe personal representative shall reportsuch attachment or levy to the court whenany petition for distribution is filed andin the decree made upon such petition distribution shall be ordered to the heir or

legatee but delivery of such personal property shall be ordered to the officer makingthe attachment or levy whose receipt shallbe a sufficient release for the personal representative The officer making the attachment or levy shall treat such personal property when the same comes into his hands inthe same manner as other personal propertyattached or levied upon by him and capableof manual delivery The personal propertyso attached or levied upon shall not be delivered to the officer making the levy untilthe decree distributing such interest has become final

2 This section shall not apply to oraffect any moneys rights or properties constituting the subjectmatter of any trust contained in a duly probated will of a decedentbut shall only apply to personal propertiesmoneys and assets that would but for theattachment or execution be paid or delivered directly to the heir legatee or devisee

3 If by virtue of an order of courtor otherwise a partial distribution has beenmade by the personal representative of decedent to the heir legatee or devisee prior tothe service of such attachment or executiononly the remainder of the personal estategoing to such heir legatee or devisee shallbe affected by the attachment or execution

29180 Return of writ inventory Whenthe writ of attachment has been fully executed or discharged the sheriff shall returnthe same with his proceedings indorsed there

200


on to the clerk of the court where the actionwas commenced and the sheriff shall make afull inventory of the property attached andreturn the same with the writ

29190 Filing sheriffs certificate on attachment of real property lien Upon receiving the sheriffscertificate as provided in ORS29170 the county clerk shall immediately filesuch certificate in his office and record it ina book to be kept for that purpose When thecertificate is so filed for record the lien infavor of the plaintiff attaches to the real property described in the certificate Wheneversuch lien is discharged the county clerk shallenter upon the margin of the page on whichthe certificate is recorded a minute of thedischarge

29200 Sale of perishables or livestockcustody of property If any property attachedis perishable or livestock where the cost ofkeeping is great the sheriff shall sell the samein the manner in which property is sold onexecution The proceeds thereof and otherproperty attached shall be retained by him toanswer any judgment that may be recoveredin the action unless sooner subjected to execution upon another judgment

29210 Adverse claims to attached personal property If any personal property attached is claimed by a third person as hisproperty the sheriff may summon a jury totry the validity of such claim or at the optionof the adverse claimant the court out ofi Which the attachment issued shall try theadverse claim in a summary manner and thesame proceedings shall be had thereon withlike effect as in case of seizure upon execution

29220 Redelivery bond The sheriff shalldeliver any of the attached property to thedefendant or to any other person claiming itupon his giving a written undertaking executed by two or more sufficient sureties engaging to redeliver it or pay the value thereofto the sheriff to whom execution upon a judgment obtained by the plaintiff in that actionmaybe issued

29230 Defense to action upon redeliverybond In an action brought upon such undertaking against the principal or his suretiesit shall be a defense that the property forwhich the undertaking was given did not atthe execution of the writ of attachmentbelong to the defendant against whom thewrit was issued

29240 Undertaking to discharge attachment Whenever the defendant shall have

appeared in the action he may apply uponnotice to the plaintiff to the court where theaction is pending or to the judge or clerk ofsuch court for an order to discharge theattachment upon the execution of the undertaking mentioned inORS 29250 and if theapplication be allowed all the proceeds ofsales and property remaining in the handsof the sheriff shall be released from the at

tachment and delivered to the defendantupon his serving a certified copy of the orderon the sheriff

29250 Form of undertaking Upon suchapplication the defendant shall deliver to thecourt or judge to whom the application ismade an undertaking executed by one ormore sureties resident householders or freeholders of this state to the effect that thesureties will pay to the plaintiff the amountof the judgment that may be recoveredagainst the defendant in the action If theplaintiff demands it the sureties shall berequired to justify in the same manner asbail upon an arrest

29260 Motion to discharge attachmentamendment of affidavit or undertaking Thedefendant may at any time before judgmentapply to the court or judge thereof where theaction is pending to discharge the attachmentin the manner and with the effect providedin ORS 29540 and 29550 for the discharge ofa defendant from arrest However no attachment shall be discharged on account of anydefect in the affidavit if before the determination of a motion to discharge said attachment the plaintiff shall file an amended affidavit substantially complying with the requirements of ORS 29120 The amended affidavit must show that the grounds for issuingthe writ of attachment as prescribed in ORS29110 existed at the date the writ was issued

No attachment shall be discharged on accountof any defect in the undertaking therefor iibefore the determination of a motion to discharge said attachment or within such further time as the court may allow the plaintiff shall file an amended undertaking substantially complying with the requirementsof ORS 29130

29270 Liability of garnishee delivery ofattached property to sheriff by garnishee Anyperson association or corporation mentionedin subsection 3 of ORS 29170 from the timeof the service of a copy of the writ and noticeas therein provided shall unless the attached

201


property is delivered or attached debt is paidto the sheriff be liable to the plaintiff forthe amount thereof until the attachment is

discharged or any judgment recovered by himis satisfied Such property may be deliveredor debt paid to the sheriff without suit orat any time before a judgment against thegarnishee and the sheriffs receipt shall be asufficient discharge

29280 Certificate of garnishee order forexamination of garnishee Whenever the

sheriff with a writ of attachment against thedefendant shall apply to any person or officer

r mentioned in subsection 3 of ORS 29170for the purpose of attaching any propertymentioned therein such person or officer shallfurnish him with a certificate designatingthe amount and description of any propertyin his possession belonging to the defendantor any debt owing to the defendant or thenumber of rights or shares of the defendantin the stock of the association or corporationwith any interest or profits or encumbrancethereon The certificate shall be furnished to

the sheriff within five days from the date ofservice of the writ when service is madewithin the county in which the action is pending and within 10 days when service is madein any other county If such person or officerfails to do so within the time stated or if thecertificate when given is unsatisfactory tothe plaintiff he may be required by the courtor judge thereof where the action is pendingto appear and be examined on oath concerning the same and disobedience to such ordermay be punished as a contempt

29290 Contents of order designation ofparties The order provided for in ORS 29280shall require such person or officer to appearbefore the court or judge at a time and placetherein stated In the proceedings thereafterupon the order such person or the associationor corporation represented by such officershall be known as the garnishee

29300 Restraining order against garnisheeThe court or judge thereof may at the timeof the application of the plaintiff for the orderprovided for in ORS 29280 and at any timethereafter before judgment against the garnishee by order restrain the garnishee fromin any manner disposing of or injuring anyof the property of the defendant alleged bythe plaintiff to be in the garnishees possession control or owing by him to the defendant and disobedience to such order may bepunished as a contempt

29310 Allegations and interrogatories togarnishee After the allowance of the orderprovided for in ORS 29280 and before thegarnishee or officer thereof shall be requiredto appear or within a time to be specified inthe order the plaintiff shall serve upon thegarnishee or officer thereof written allegations and may serve written interrogatoriestouching any of the property as to which thegarnishee or officer thereof is required to givea certificate as provided in ORS 29280

29320 Answer of garnishee On the daywhen the garnishee or officer thereof is required to appear he shall return the allegations and interrogatories of the plaintiff tothe court or judge with his written answerthereto unless for good cause shown a furthertime is allowed The answer shall be on oathand shall contain a full and direct responseto all the allegations and interrogatories

29330 Compelling garnishee to answerjudgment for want of answer If the garnishee or officer thereof fails to answer thecourt or judge thereof on motion of the plaintiff may compel him to do so or the plaintiffmay at any time after the entry of judgmentagainst the defendant have judgment againstthe garnishee for want of answer In no caseshall judgment be given against the garnisheefor a greater amount than the judgmentagainst the defendant

29340 Exception or reply to answer Plaintiff may except to the answer of the garnisheeor officer thereof for insufficiency withinsuch time as may prescribed or allowedand if the answer is adjudged insufficient thegarnishee or officer may be allowed to amendhis answer on such terms as may be properor judgment may be given for the plaintiff asfor want of answer or such garnishee orofficer may be compelled to make a sufficientanswer The plaintiff may reply to the wholeor a part of the answer within such time asmay be prescribed or allowed If the answeris not excepted or replied to within the timeprescribed or allowed it shall be taken to betrue and sufficient

29350 Trial Witnesses including the defendant and garnishee or officer thereof maybe required to appear and testify and theissues shall be tried upon proceedings againsta garnishee as upon the trial of an issue offact between a plaintiff and defendant

29360 Judgment against garnhee If bythe answer it shall appear or if upon trial itshall be found that the garnishee at the time

202


oftthe service of the copy of the writ ofattachment and noticei had any property asto which such garnishee or officer thereofis required to give a certificate as providedin ORS 29280 beyond the amount admittedin the certificate or in any amount if thecertificate was refused judgment may begiven against the garnishee for the valuethereof in money

29370 Execution against garnishee Executions may issue upon judgments 3

against agarnishee as upon ordinary judgments between plaintiff and defendant and costs anddisbursements shall be allowed and recoveredin like manner provided however whenjudgment is rendered against any garnisheeand the debt from him to the defendant is

not yet due execution shall not issue until thedebt is due

29380 Sale after judgment against defendant Judgment on undertaking for discharge of attachment If judgment is recoveVed by the plaintiff against the defendantand it shall appear that property has beenattached in the action and has not been soldas perishable propertyordischarged from theattachment the court shall order the propertyto be sold to satisfy the plaintiffs demandsand if execution issue thereon the sheriffshall apply the property attached by him orthe proceeds thereof upon the execution andif any such property or proceeds remain aftersatisfying such execution he shall upon demand deliver the same to the defendant orif the property attached has been releasedfrom attachment by reason of the giving ofthe undertaking by the defendant as providedby ORS 29250 the court shall upon givingjudgment against the defendant also givejudgment in like manner and with like effectagainst the surety in such undertaking

29390 Judgment for defendant judgment is not recovered by the plaintiff all theproperty attached or the proceeds thereofor the undertaking therefor shall be returnedto the defendant upon his serving upon thesheriff a certified copy of the order discharging the attachment

29400 Release of garnishment The clerkof any court in whom is vested authority toissue writs of attachment may issue releases ofgarnishments based upon writs of attachmentissued by such clerk whenever the plaintiffby his attorney of record or the plaintiff inperson if there is no attorney shall file withthe clerk a written request therefor Such

r f

release shall lbe executed in duplicate undertheseal of the court or the stamp of the clerkandmakaover a lcdrany 1Sbrtidn of the fundsor property held under garnishment One

duplicate tfriginal of the release shall be delivered the garnishee and the other duplicate original together with the written request therefor indorsed on the face thereofby the attorney of record if there be anattorney shall be attachedtothe original writof attachment in the same manner as the

return of the sheriff or constable and anypending proceedings in such case for the saleupon execution of any property so garnishedshall as to all property covered by the release thereupon be terminated and be considered no effect all costs to be paid bythe plaintiff Upon receipt by the garnisheeof the duplicate original release the garnishee and all funds or property subject tosuch garnishment shall to the extent statedin the release be released from all liabilityarising by reason of the issuance and serviceof the writ of attachment and notice of garnishment or by reason of his return thereonas though the writ of attachment and noticeof garnishment had not been served The

garnishee may rely upon any such release soreceived by him without any obligation onhis part to inquire into the authority thereforThe authority vested by this section in theclerk of the court to issue releases is not

exclusive but is in addition to the authorityof the court having jurisdiction of the causeto release discharge or dissolve attachmentsand garnishments


CIVIL ARREST

29510 Civil arrest in law and equity Theprovisions of ORS 29520 to 29740 apply tosuits the same as they apply to actions

29520 When civil arrest lies 1 No maleperson shall be arrestedanaction except

a In an action for the recovery of moneyor damages on a cause of action arising outof contract when the defendant is not a resident of the state or is about to remove therefrom or when the action is for an injury toperson or character or for injuring or wrongfully taking detaining or converting property

b In an action for a fine or penalty oron a promise to marry or for money receivedor property embezzled or fraudulently misapplied or converted to his own use by apublic officer or by an attorney or by an

03


Officer or agent of a corporation in the course amount specified in the undertaking over allof his employment as such or by any factor debts and liabilities and property exemptagent broker or other person in a fiduciary from execution Any person not qualified tocapacity or for any misconduct or neglect in become bail upon arrest is not qualified tooffice or in a professional employment become surety in an undertaking for an arrest

c In an action to recover the possession 3 The writ of arrest shall be issued byof personal property unjustly detained when the clerk and shall require the sheriff of anythe property or any part thereof has been county where the defendant may be foundconcealed removed or disposed of so that it forthwith to arrest him and hold him to bailcannot be found or taken by the sheriff and in the amount specified in the undertakingwith intent that it should not be so found or and in default thereof to keep him in custodytaken or with the intent to deprive the plain until discharged by law and to return thetiff of thebenefit thereof writ to the clerk from whom it issued with

d When the defendant has been guilty his doings indorsed thereon when requiredof a fraud in contracting the debt or incurring by the plaintiff at any time before the dethe obligation for which the action is brought fendant may be arrested or afterwards whenor in concealing or disposing of the property ever the defendant shall have been dischargedfor the taking detention or conversion of from the arrestwhich the action is brought 4 The plaintiff shall deliver or cause to

e When the defendant has removed or be delivered to the sheriff with the writ adisposed of his property or is about to do so copy of the affidavit upon which the writ waswith intent to defraud his creditors issued subscribed by himself or attorney

The sheriff upon delivery of the writ shallindorse thereon the date of receipt and uponthe arrest of the defendant shall deliver tohim a copy of the writ and such copy ofthe affidavit The sheriff shall execute the

writby arresting the defendant and keepinghim in custody until discharged by law

2 No female shall be arrested in anyaction except for an injury to person character or property

29530 Proceeding to obtain arrest The

mode of proceeding to obtain the arrest of adefendant is as follows

1At any time after the commencementof an action and before judgment the plaintiff shall be entitled to a writ of arrest for thedefendant whenever he shall make and filewith the clerk of the court in which the action

is commenced or is at the time pending anaffidavit that the plaintiff has a sufficientcause of action therein and that the case isone of those mentioned in ORS 29520 andshall also make and file with the clerk an

undertaking with one or more sureties in asum not less than 100 and equal to theamount for which plaintiff prays judgmentSuch undertaking shall be conditioned thatthe plaintiff will pay all costs that may beadjudged to the defendant and all damageswhich he may sustain by reason of the arrestif the same be wrongful or without sufficientcause not exceeding the amount specified inthe undertaking

2 The affidavit may be either positiveor upon information and belief but if thelatter it shall state the nature and sourcesof the information upon which the belief isfounded The plaintiff shall also file withhis undertaking the affidavits of the suretiestherein from which it must appear that thesureties are residents of the state and thatthey are taken together worth double the

29540 Motion to vacate writ of arrest A

defendant arrested may at any time beforejudgment apply on motion to the court orthe judge thereof in which the action is pending upon notice to the plaintiff to vacatethe writ of arrest except where the cause ofarrest and the cause of action are the same

29550 Proceedings on motion to vacateIf a motion is made upon affidavits or otherproofs by the defendant but not otherwisethe plaintiff may oppose the same by affidavits or other proofs in addition to those uponwhich the writ was issued If upon the hearing of the motion it satisfactorily appears thatthere was not sufficient cause to allow thewrit the writ shall be vacated

29560 Discharge on bail undertakingThe defendant at any time before executionshall be discharged from the arrest upon giving bail He may give bail by causing awritten undertaking to be executed in favorof the plaintiff by two or more sufficientsureties stating their places of residence tothe effect that the defendant shall at all timesrender himself amenable to the process of thecourt during the pendency of the action andto such as may be issued to enforce the judg

04

ATTACHMENT GARNISHME ARREST REPLEVIN 29630

ment therein or if he has been arrested forthe cause mentioned in paragraph c of subsection 1 of ORS 29520 an undertaking tothe same effect as that provided by ORS29860

29570 Delivery of copy of undertaking toplaintiff acceptance or rejection of bailWithin five days from the execution of theundertaking of the bail the sheriff shalldeliver to the plaintiff or his attorney ifeither of them reside within the countywhere the arrest was made or otherwise tosuch person within the county as the plaintiff may direct a certified copy of the undertaking with the date of the arrest indorsedthereon In any other case the sheriff maymail such copy within the same time to theplaintiff or his attorney within the stateor to either of them as the plaintiff maydirect The plaintiff within ten days fromthe delivery of the copy or 15 days from itsmailing if sent by mail may serve upon thesheriff a notice that he does not accept thebail otherwise he shall be deemed to have accepted it and the sheriff shall be exoneratedfrom liability If no notice is served withinten days the original undertaking shall befiled with the clerk of the court where theaction is pending

29580 Notice of justification of bail newundertaking On the receipt of the notice bythe plaintiff that he does not accept the bailthe sheriff or defendant may within ten daysthereafter give to the plaintiff or his attorneynotice ofthejustification of the same or otherbail specifying the places of residence andoccupation of the latter before a judge ofthe circuit court or county court or clerk ofthe court where the action is pending at aspecified time and place the time to be notless than five nor more than ten days thereafter In case neither the plaintiff nor hisattorney reside within the county where thearrest is made the notice may be served uponthe person and in the manner provided inORS 29570 for serving the copy of the undertaking In case other bail is given there shallbe a new undertaking in the form and to theeffect prescribed in ORS 29560

29590 Procedure of justification For thepurpose of justification each of the bail shallattend before the judge or clerk at the timeand place mentioned in the notice and maybe examined on oath touching his sufficiencyby the plaintiff in such manner as the judgeor clerk may think proper The examination

shall be reduced to writing and subscribedby the bail if required by the plaintiff

29600 Determination of sufficiency ofbail If the judge or clerk finds the bail sufficient he shall annex the examination to theundertaking indorse his allowance thereonand cause them to be filed with the clerk of

the court in which the action is pending andthe sheriff shall thereupon be exoneratedfrom liability

29610 Qualifications of bail The qualifications of bail are as follows

1 Each of them shall be a resident andhouseholder or freeholder within the statebut no attorney sheriff clerk of any courtor other officer of any court may become bail

2 Each of them shall be worth theamount specified in the writ of arrest overand above all debts and liabilities and exclusive of property exempt from executionbut the judge or clerk on justification mayallow more than two sureties to justify severally in amounts less than that expressed inthe writ if the whole justification is equivalent to that of two sufficient bail

29620 Surrender of defendant At anytime before a failure to comply with theundertaking the bail may surrender the defendant in their exoneration or the defendantmay surrender himself to the sheriff of thecounty where he was arrested in the following manner

1 A certified copy of the undertakingof the bail shall be delivered to the sheriffwho shall detain the defendant in his custody thereon as upon a writ of arrest andshall by a certificate in writing acknowledgethe surrender

2 Upon the production of a copy of theundertaking and sheriffs certificate thejudge of the court may upon a notice to theplaintiff of eight days with a copy of thecertificate order that the bail be exonerated and on filing the order and the papersused on said application with the clerk of thecourt where the action is pending they shallbe exonerated accordingly but this sectionshall not apply to an arrest for the causementioned in paragraph c of subsection1 of ORS 29520 so as to discharge the bailfrom an undertaking given to the effect provided by ORS 29860

29630 Arrest of defendant by bail Forthe purpose of surrendering the defendantthe bail at any time and place before theyare finally charged may themselves arrest

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hint orby a written authority indo7edonaceriifi copy of the undertaking may empower thesh rifforany other person ofsuitable agef and discretion to do so

1Vistnuer of proceeding against bailFor failure tocirnpiy Witl the undertakingthebai1 may be proceeded against by actionohly

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29650 Exoneration of bail The bail maybe exonerated either by the death of the defendant or his imprisonment in the peniteritiary or by his legal discharge from theobligation to render himself amenable to theprocess or by his surrender to the sheriffof thecounty where he was arrested in execution thereof within twenty days after thecommencement of the actionagainst the bailor within such further time as may be grantedby court

29660 Discharge on deposit of money Thedefendantmay at any time before executiondeposit with the sheriff the amount mentioned in the writ Thereupon the sheriffshall give tht defendant a certificate of thedeposit made and the defendant shall bedischarged from the arrest

29670 Payment of deposit by sheriff intocourt The sheriff shall within four days afterthe deposit pay the same into court and takefrom the clerk receiving the payment twocertificates of payment one of which he shalldeliver to the plaintiff or his attorney and theother to the defendant For any default inmaking such payment the same proceedingsmay be had on the official bond 6f the sheriffto collect the sum deposited as in other casesof delinquency I

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29680 Substituting bail for deposit Ifmoneyisdeposited as provided in ORS 29660and 29670 bail may begiven and justifiedupon notice as prescribed in ORS 29560 aany time before judgment and on the filingof the undertaking and justification with theclerk the money deposited shall be refundedby suchclerk to the defendant

29690 Disposition of money deposited Atthe time of an order or judgment for thpayment of money to the plaintiff the clerkshall under the direction of the court apply any money remaining on depositsatisfaction thereof and aftersatisfying thjudgment shall refund any surplus to thdefendant If the judgment is in favor of thdefendant the clerk shall refund to him almoney remaining on deposit

29700Liability of sheriff If after bepgarrestedtliedeferidantescapes or is rescuedor bail notigven or justified or a depositis ndt madeithereof the sheriff hirnselfslidll b liable as bail but heinay discharge himself from such liability by 5 thegiving and justificationofbail as provided inORS 29580 to2j610 any time before process against the of the defendant tox

enforce an order or judgment in theaction29710 Proceedings against sheriff If a

judgment is recovered against the sheriffupon his liability as bail and an executionthereon is returned unsatisfied inwhole or inpart thesame proceedings may be had onhis official bond as in other cases of delinquency

29720 Liability of bail to sheriff The bailtaken upon the arrest shall unless theyjustify or other bail is given or justified beliable to thesheriff by action for any damageslie may sustain byreason ofsuch omission29730 Maintenance of arrested defendant

There shall be allowed to the sheriff forthe food and maintenance of any defendantarrested under the provisions of ORS 29510to29740 the fees provided by law The plaintiff shall be liable in the first instance forsuch fees and if required by the sheriff shallpay them weekly in advance The fees sopaid shall be added to the disbursementstaxedbraccruing in the case and be collectedas other disbursements

29740 Discharge of defendant for nonpayment of maintenance If the plaintiff neglects to pay such fees for three days after ademand of payment the sheriff may discharge the defendant out of custody


tCLAIM AND DELIVERY

REPLEVIN

29810 Nature of the remedy In an actionto recover the possession of personal propertythe plaintiff at any time after the action iscommenced and before judgment may claim

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the immediate delivery of such property asprovided in ORS 29820 to 29910

in Affidavit When a delivery ise claimed an affidavit shall be made by thee plaintiff or by someone in his behalf showe ing1 1 That the plaintiff is the owner of the

206property claimed particularly describing it

ATTACHMENT GARNISHMENT ARRESTREPLEVIN 29880

or is lawfully entitled to the possessionthereof by virtue of a special property thereinthe facts in respect to which shall be set forth

2 That the property is wrongfully detained by the defendant

3 The alleged cause of the detentionaccording to his best knowledge informationand belief

4 That the property has not been takenfor a tax assessment or fine pursuant to astatute or seized under an execution or attachment against the property of the plaintiff or if so seized that it is by statute exempt from such seizure and

5 The actual value of the property

29830 Requisition to sheriff The plaintiff may by an indorsement in writing uponthe affidavit require the sheriff of the countywhere the property claimed may be to takethe property from the defendant and deliverit to the plaintiff

29840 Undertaking of plaintiff proceedings of sheriff Upon the receipt of the affidavit and indorsement thereon with a writtenundertaking executed by two or more sufficient sureties approved by the sheriff to theeffect that they are bound in double the valueof the property as stated in the affidavit forthe prosecution of the action for the returnof the property to the defendant if returnthereof is adjudged and for the payment tohim of such sum as may for any cause berecovered against the plaintiff the sheriffshall forthwith take the property describedin the affidavit if it be in the possession ofthe defendant or his agent and retain it inhis custody He shall also without delayserve on the defendant a copy of the affidavit indorsement thereon and undertaking bydelivering them to him personally if he canbe found or to his agent from whose possession the property is taken or if neither canbe found by leaving them at the usual placeof abode of either with some person of suitable age and discretion or if neither haveany known place of abode by putting them inthe post office directed to the defendant atthe post office nearest to him

ties shall justify on notice in like mannerprovided in ORS 29590 for as bail on arrestThe sheriff is responsible for the sufficiencyof the sureties until the objection to them iswaived or until they justify or new suretiesare substituted and justify If the defendantexcepts to the sureties he cannot reclaim theproperty as provided in ORS 29860

2 The qualifications of the sureties shallbe as provided in ORS 29610 for bail on civilarrest

29860 Defendantsundertaking for returnof property when property to be delivered toplaintiff At any time before the delivery ofthe property to the plaintiff the defendantmay if he does not except to the sureties ofthe plaintiff require the return thereof upongiving to the sheriff a written undertakingexecuted by two or more sufficient suretiesto be approved by the sheriff to the effectthat they are bound in double the value of theproperty as stated in the affidavit of theplaintiff for the delivery thereof to the plaintiff if such delivery be adjudged and for thepayment to him of such sum as may for anycause be recovered against the defendant Ifa return of the property is not so requiredwithin three days after the taking and serviceof a copy of the affidavit and undertaking onthe defendant it shall be delivered to theplaintiff except as provided in ORS 29900

29870 Justification of defendantssuretiesqualifications 1 The defendants suretiesupon notice to the plaintiff or his attorney ofnot less than two nor more than six days shalljustify before a judge of the circuit or countycourt or the clerk of the court in which theaction is pending in the same manner as provided in ORS 29590 for bail on arrest andupon such justification the sheriff shall deliver the property to the defendant The

sheriff shall be responsible for the defendantssureties until justification is completed orexpressly waived and may retain the property until that time but if justification is notcompleted at the time and place appointedhe shall deliver the property to the plaintiff

2 The qualifications of the sureties shallbe as provided in ORS 29610 for bail on civilarrest29850 Exception to and justification of

plaintiffs sureties qualifications 1 Thedefendant may within three days after theservice of a copy of the affidavit and undertaking give notice to the sheriff that heexcepts to the sufficiency of the sureties Ifhe fails to do so he waives all objection tothem When the defendant excepts the sure

29880 Claim of property by third personIf the property taken is claimed by any otherperson than the defendant or his agent andsuch person makes affidavit of his title or hisright to possession stating the grounds ofsuch title or right and serves the same uponthe sheriff before the delivery of the property

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to the plaintiff the sheriff shall notbeboundto keep the property or deliver it to the plaintiff unless the plaintiff on demand of him orhis agent shall indemnify the sheriff againstsuch claim by an undertaking executed bytwo sufficient sureties accompanied by theiraffidavits that they are each worth doublethe value of theproperty as specified in theaffidavit of the plaintiff over and above theirdebts and liabilities exclusive of propertyexempt from execution and are freeholdersor householders of the county No claim tosuch property by any other person than thedefendant or his agent shall be valid againstthe sheriff unless made as aforesaid andnotwithstanding any such claim he may retain the property a reasonable time to demandsuch indemnity

2990 Concealed property if the property or any part thereof is concealed in abuilding or inclosure the sheriff shall publicly

demand its delivery If it is not delivered heshall cause the building or inclosure to bebroken open and take the property into hispossession and if necessary he may call tohis aid the power of his county

29900 Custody and delivery of propertyWhen the sheriff has taken property as provided in ORS 29810 to 29890 he shall keepit in a secure place and deliver it to the partyentitled thereto upon receiving his lawfulfeesfor taking and his necessary expenses forkeeping the same

29910 Return of proceedings by sheriffThe sheriff shall file the affidavit with hisproceedings thereon including an inventoryof the property taken with the clerk of thecourt in which the action is pending withintwenty daysafter taking the property or ifthe clerk resides in another county shall mailorforward the same within that time

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chapter 29 attachment and garnishment civil arrest claim

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