Article 35.

Attachment.

Part 1. General Provisions.

§ 1-440.  Superseded by Session Laws 1947, c. 693, codified as § 1-440.1 et seq.

 

§ 1-440.1.  Nature of attachment.

(a)        Attachment is a proceeding ancillary to a pending principal action, is in the nature of a preliminary execution against property, and is intended to bring property of a defendant within the legal custody of the court in order that it may subsequently be applied to the satisfaction of any judgment for money which may be rendered against the defendant in the principal action.

(b)        No personal judgment, even for costs, may be rendered against a defendant unless personal jurisdiction has been acquired as provided in G.S. 1-75.3.

(c)        Although there is no personal service on the defendant, or on an agent for him, and although he does not make a general appearance, judgment may be rendered in an action in which property of the defendant has been attached which judgment shall provide for the application of the attached property, by the method set out in G.S. 1-440.46, to the satisfaction of the plaintiff's claim as established in the principal action. If plaintiff's claim is not thereby satisfied in full, subsequent actions for the unsatisfied balance are not barred. (1947, c. 693, s. 1; 1967, c. 954, s. 3.)

 

§ 1-440.2.  Actions in which attachment may be had.

Attachment may be had in any action the purpose of which, in whole or in part, or in the alternative, is to secure a judgment for money, or in any action for alimony or for maintenance and support, or an action for the support of a minor child, but not in any other action. (1947, c. 693, s. 1; 1967, c. 1152, s. 4; c. 1153, s. 3.)

 

§ 1-440.3.  Grounds for attachment.

In those actions in which attachment may be had under the provisions of G.S. 1-440.2, an order of attachment may be issued when the defendant is

(1)        A nonresident, or

(2)        A foreign corporation, or

(3)        A domestic corporation, whose president, vice-president, secretary or treasurer cannot be found in the State after due diligence, or

(4)        A resident of the State who, with intent to defraud his creditors or to avoid service of summons,

a.         Has departed, or is about to depart, from the State, or

b.         Keeps himself concealed therein, or

(5)        A person or domestic corporation which, with intent to defraud his or its creditors,

a.         Has removed, or is about to remove, property from this State, or

b.         Has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, property. (1947, c. 693, s. 1.)

 

§ 1-440.4.  Property subject to attachment.

All of a defendant's property within this State which is subject to levy under execution, or which in supplemental proceedings in aid of execution is subject to the satisfaction of a judgment for money, is subject to attachment under the conditions prescribed by this Article. (1947, c. 693, s. 1.)

 

§ 1-440.5.  By whom order issued; when and where; filing of bond and affidavit.

(a)        An order of attachment may be issued by

(1)        The clerk of the court in which the action has been, or is being, commenced, or by

(2)        A judge of the appropriate trial division, as authorized in subsection (b) of this section.

(b)        An order of attachment issued by a judge may be issued as follows:

(1)        If the action has been or is being commenced in the Superior Court Division, a resident superior court judge of the district, or a judge regularly holding the superior courts of the district, may issue the order in open court or in chambers, in session or in vacation, and within or without the district. Any other judge holding a session of superior court in the county may issue the order in open court.

(2)        If the action has been or is being commenced in the District  Court Division, the presiding judge, the chief district judge, or any district judge authorized by the chief to hear motions and enter interlocutory orders may issue the order in open court or in chambers in session or in vacation.

(c)        In those cases where the order of attachment is issued by the judge, such judge shall cause the bond required by G.S. 1-440.10 and the affidavit required by G.S. 1-440.11 to be filed promptly with the  clerk of the court of the county in which the action is pending. (1947, c. 693, s. 1; 1971, c. 268, s. 30.)

 

§ 1-440.6.  Time of issuance with reference to summons or service by publication.

(a)        The order of attachment may be issued at the time the summons is issued or at any time thereafter.

(b)        No order of attachment may be issued in any action after judgment in the principal action is had in the superior court. (1947,  c. 693, s. 1; 1967, c. 954, s. 3.)

 

§ 1-440.7.  Time within which service of summons or service by publication must be had.

(a)        When an order of attachment is issued before the summons is served.

(1)        If personal service within the State is to be had, such personal service must be had within 30 days after the issuance of the order of attachment;

(2)        If such personal service within the State is not to be had,

a.         Service of the summons outside the State, in the manner provided by Rule 4(j)(9)a or b of the Rules of Civil Procedure, must be had within 30 days after the issuance of the order of attachment, or

b.         Service by publication must be commenced not later than the thirty-first day after the issuance of the order of attachment. If publication is commenced, such publication must be completed as provided by Rule 4(j)(9)c of the Rules of Civil Procedure unless the defendant appears in the action or unless personal service is had on him within the State.

(b)        Upon failure of compliance with the applicable provisions of subsection (a) of this section, either the clerk or the judge shall, upon the motion of the defendant or any other interested party, make an order dissolving the attachment, and the defendant shall have all the rights that would accrue to him under the provisions of G.S. 1-440.45, the same as if the principal action had been prosecuted to judgment and the defendant had prevailed therein. (1947, c. 693, s. 1; 1967, c. 954, s. 3; 1971, c. 1093, ss. 14, 15.)

 

§ 1-440.8.  General provisions relative to bonds.

(a)        Any bond given pursuant to the provisions of this Article shall be executed by the party required to furnish the bond and by

(1)        A surety company authorized to do business in this State, as provided by G.S. 58-73-5, or by

(2)        One or more individual sureties, as may be required by the court.

(b)        Each individual surety shall execute an affidavit, to be attached to the bond, stating that he is a resident of the State and that he is worth the amount specified in the bond exclusive of property exempt from execution and over and above all his liabilities.

(c)        Any bond given pursuant to any provisions of this Article shall be subject to the approval of the court.

(d)       It is not a defense in an action on any bond given pursuant to this Article that

(1)        The court had no jurisdiction to require or accept bond, or

(2)        The order of attachment was improperly granted, or

(3)        There was any other irregularity in the attachment proceeding. (1947, c. 693, s. 1.)

 

§ 1-440.9.  Authority of court to fix procedural details.

The court of proper jurisdiction, before which any matter is pending under the provisions of this Article, shall have authority to fix and determine all necessary procedural details in all instances in which the statute fails to make definite provision as to such procedure. (1947, c. 693, s. 1.)

 

Part 2. Procedure to Secure Attachment.

§ 1-440.10.  Bond for attachment.

Before the court issues an order of attachment, the plaintiff must furnish a bond as follows:

(1)        The amount of the bond shall be such as may be fixed by the court issuing the order of attachment and shall be such as may be deemed necessary by the court in order to afford reasonable protection to the defendant, but shall not be less than two hundred dollars ($200.00);

(2)        The condition of the bond shall be that

a.         If the order of attachment is dissolved, dismissed or set aside by the court, or

b.         If the plaintiff fails to obtain judgment against the defendant, the plaintiff will pay all costs that may be awarded to the defendant and all damages that the defendant may sustain by reason of the attachment, the surety's liability, however, to be limited to the amount of the bond. (1947, c. 693, s. 1.)

 

§ 1-440.11.  Affidavit for attachment; amendment.

(a)        To secure an order of attachment, the plaintiff, or his agent or attorney in his behalf, must state by affidavit

(1)        In every case:

a.         The plaintiff has commenced or is about to commence an action, the purpose of which, in whole or in part, or in the alternative, is to secure a judgment for money, and the amount thereof,

b.         The nature of such action, and

c.         The ground or grounds for attachment (one or more of those stated in G.S. 1-440.3); and

(2)        In those cases described below, the additional facts indicated:

a.         If the action is based on breach of contract, that the plaintiff is entitled to recover the amount for which judgment is sought over and above all counterclaims known to him;

b.         If it is alleged as a ground for attachment that the defendant has done, or is about to do, any act with intent to defraud his creditors, the facts and circumstances supporting such allegation.

(b)        A verified complaint may be used as the affidavit required by this section.

(c)        The court, in its discretion, at any time before judgment in the principal action, may allow any such affidavit to be amended even  though the original affidavit is wholly insufficient.

(d)       An amendment of an insufficient affidavit of attachment relates to the beginning of the attachment proceeding, and no rights based on such irregularity can be required by any third party by any subsequent attachment intervening between the original affidavit and the amendment. (1947, c. 693, s. 1.)

 

§ 1-440.12.  Order of attachment; form and contents.

(a)        If the matters required by G.S. 1-440.11(a) are shown by affidavit to the satisfaction of the court and if the bond required by G.S. 1-440.10 is furnished, the court shall issue an order of attachment which shall

(1)        Show the venue, the court in which the action has been, or is being, commenced, and the title of the action;

(2)        Run in the name of the State and be directed to the sheriff of a designated county;

(3)        State that an affidavit for the attachment of the defendant's property has been filed with the court in the action, that the required attachment bond has been executed and delivered  to the court and that it has been made to appear to the satisfaction of the court that the allegations of the plaintiff's affidavit for attachment are true;

(4)        Direct the sheriff to attach and safely keep all of the property of the defendant within the sheriff's county which is subject to attachment, or so much thereof as is sufficient to satisfy the plaintiff's demand, together with costs and expenses;

(5)        Direct that the order of attachment be returned to the clerk  of the court in which the action is pending;

(6)        Show the date of issuance; and

(7)        Be signed by clerk or the judge issuing the order.

(b)        The order of attachment shall not contain a return date, but  shall be returned to the clerk as provided by G.S. 1-440.16. (1947, c. 693, s. 1.)

 

§ 1-440.13.  Additional orders of attachment at time of original order; alias and pluries orders.

(a)        At the time the original order of attachment is issued, or thereafter, one or more additional orders, at the request of the plaintiff, may be issued, and any such additional order may be directed to the sheriff of any county in which the defendant may have  property.

(b)        After the original order or orders have been returned, if no property or, in the opinion of the plaintiff, insufficient property has been attached thereunder, alias or pluries orders may be issued prior to judgment, at the request of the plaintiff, and such alias or pluries orders may be directed to the sheriff of any county in which the defendant may have property. (1947, c. 693, s. 1.)

 

§ 1-440.14.  Notice of issuance of order of attachment when no personal service.

(a)        When service of process by publication is made subsequent to the original order of attachment, the published and mailed notice of service of process shall include notice of the issuance of the order of attachment.

(b)        When the original order of attachment is issued after publication is begun, a notice of the issuance of the order of attachment shall be published once a week for four successive weeks in some newspaper published in the county in which the action is pending, such publication to be commenced within 30 days after the issuance of the order of attachment. Such notice shall show

(1)        The county and the court in which the action is pending,

(2)        The names of the parties,

(3)        The purpose of the action, and

(4)        The fact that on a date specified an order was issued to attach the defendant's property.

(c)        If no newspaper is published in the county in which the action is pending, the notice

(1)        Shall be published once a week for four successive weeks in some newspaper published in the same district court district as defined in G.S. 7A-133 or superior court district or set of districts as defined in G.S. 7A-41.1, as the case may be, or

(2)        Shall be posted at the courthouse door in the county for 30 days. (1947, c. 693, s. 1; 1967, c. 954, s. 3; 1987 (Reg. Sess., 1988), c. 1037, s. 40.)

 

Part 3. Execution of Order of Attachment; Garnishment.

§ 1-440.15.  Method of execution.

(a)        The sheriff to whom the order of attachment is directed shall note thereon the date of its delivery to him and shall promptly  execute it by levying on the defendant's property as follows:

(1)        The levy on real property shall be made as provided by G.S. 1-440.17;

(2)        The levy on stock in a corporation shall be made as provided  by G.S. 1-440.19;

(3)        The levy on goods stored in a warehouse shall be made as provided by G.S. 1-440.20;

(4)        The levy on tangible personal property in the possession of the defendant shall, except as provided in G.S. 1-440.19, be  made as provided by G.S. 1-440.18;

(5)        The levy on tangible personal property belonging to the defendant but not in his possession, or on any indebtedness to the defendant, or on any other intangible personal property belonging to the defendant, shall, except as provided by G.S. 1-440.19 and 1-440.20, be made as provided by G.S. 1-440.25 relating to garnishment.

(b)        The sheriff is not required to levy upon personal property before levying upon real property.

(c)        In order for the sheriff to make any levy, it is not necessary for him to deliver to the defendant or any other person any copy of the order of attachment or any other process except in the case of garnishment as provided by G.S. 1-440.25. (1947, c. 693, s. 1.)

 

§ 1-440.16.  Sheriff's return.

(a)        After the sheriff has executed an order of attachment, he shall promptly make a written return showing all property levied upon by him and the date of such levy. In such return, he shall describe the property levied upon in sufficient detail to identify the property clearly. The sheriff forthwith shall deliver the order of attachment, together with his return, to the court in which the action is pending.

(b)        If garnishment process is issued, as provided by G.S. 1-440.23  and 1-440.24, the sheriff shall include in his return a report of his  proceedings with respect to such garnishment and shall return to the court the original process issued to the garnishee.

(c)        If the sheriff makes no levy within 10 days after the issuance  of the order of attachment, he forthwith shall deliver to the court, in which the action is pending, the order, and any other process relating thereto, together with his return showing that no levy has been made and the reason therefor. (1947, c. 693, s. 1.)

 

§ 1-440.17.  Levy on real property.

(a)        In order to make a levy on real property, the sheriff need not go upon the land or take control over it, but he

(1)        Shall make an endorsement upon the order of attachment or shall attach thereto a statement showing that he thereby levies upon the defendant's interest in the real property described in such endorsement or statement, describing the real property in sufficient detail to identify it clearly, and

(2)        Shall, as promptly as practicable, certify such levy, and the names of the parties to the action, to the clerk of the superior court of the county in which the land lies.

(b)        Upon receipt of the sheriff's certificate, the clerk shall docket the levy, as provided by G.S. 1-440.33. (1947, c. 693, s. 1.)

 

§ 1-440.18.  Levy on tangible personal property in defendant's possession.

The sheriff shall levy on tangible personal property in the possession of the defendant by seizing and taking into his possession so much thereof as will be sufficient to satisfy the plaintiff's demands. (1947, c. 693, s. 1.)

 

§ 1-440.19.  Levy on stock in corporation.

(a)        The sheriff may levy, as on tangible property, on a share of stock in a corporation by seizing the certificate of stock

(1)        When the certificate is in the possession of the defendant, and

(2)        When, by the law of the state in which the corporation is incorporated, the property interest of the stockholder is embodied in the certificate of stock, as is provided by the Uniform Stock Transfer Act or similar legislation.

(b)        The sheriff may levy on a share of stock in a corporation by  delivery of copies of the garnishment process to the proper officer or agent of such corporation, as set out in G.S. 1-440.26,

(1)        When, by the law of the state in which the corporation is incorporated, the property interest of the stockholder is not embodied in the certificate of stock, or

(2)        When, by the law of the state in which the corporation is incorporated, the property interest of the stockholder is embodied in the certificate of the stock, as is provided by the Uniform Stock Transfer Act or similar legislation, and

a.         Such certificate has been surrendered to the corporation which issued it, or

b.         The transfer of such certificate by the holder thereof has been restrained or enjoined.

(c)        A restraining order or injunction against the transfer of a certificate of stock, when proper in an attachment proceeding, may be granted by the clerk or judge pursuant to a motion in the cause to which the attachment is ancillary. (1947, c. 693, s. 1.)

 

§ 1-440.20.  Levy on goods in warehouses.

(a)        The sheriff may levy on goods delivered to a warehouseman for storage, by delivering copies of the garnishment process to the warehouseman, or to the proper officer or agent for the corporate warehouseman, as set out in G.S. 1-440.26,

(1)        If a negotiable warehouse receipt has not been issued with respect thereto, or

(2)        If a negotiable warehouse receipt has been issued with respect thereto, and

a.         Such receipt is seized, or

b.         Such receipt is surrendered to the warehouseman who issued it, or

c.         The transfer of such receipt by the holder thereof is restrained or enjoined.

(b)        A restraining order or injunction against the transfer of a negotiable warehouse receipt, when proper in an attachment proceeding, may be granted by the clerk or judge pursuant to a motion  in the cause to which the attachment is ancillary. (1947, c. 693, s. 1.)

 

§ 1-440.21.  Nature of garnishment.

(a)        Garnishment is not an independent action but is a proceeding ancillary to attachment and is the remedy for discovering and subjecting to attachment

(1)        Tangible personal property belonging to the defendant but not in his possession, and

(2)        Any indebtedness to the defendant and any other intangible personal property belonging to him.

(b)        A garnishee is a person, firm, association, or corporation to which such a summons as specified by G.S. 1-440.23 is issued. (1947, c. 693, s. 1.)

 

§ 1-440.22.  Issuance of summons to garnishee.

(a)        A summons to garnishee may be issued

(1)        At the time of the issuance of the original order of attachment, by the court making such order, or

(2)        At any time thereafter prior to judgment in the principal action, by the court in which the action is pending.

(b)        At the request of the plaintiff, such summons to garnishee shall, at either such time, be issued to each person designated by the plaintiff as a garnishee. (1947, c. 693, s. 1.)

 

§ 1-440.23.  Form of summons to garnishee.

The summons to garnishee shall be substantially in the following form:

State of North Carolina                                                                    In the Superior Court

__________County

____________________,

Plaintiff,

vs.

____________________,                                                                 Summons to Garnishee

Defendant,

and

____________________,

Garnishee.

To____________, Garnishee:

You are hereby summoned, as a garnishee of the defendant, ________, and required, within twenty days after the service of this summons upon you, to file a verified answer in the Office of the Clerk of the Superior Court of the above named county, at________, North Carolina, showing -

(1)        Whether, at the time of the service of this summons upon you, or at any time since then until the date of your answer, you were indebted to the defendant or had any property of his in your possession and, if so, the amount and nature thereof; and

(2)        Whether, according to your knowledge, information or belief, any other person is indebted to the defendant or has any property of the defendant in his possession and, if so, the name of each such person.

In case of your failure to file such answer a conditional judgment will be rendered against you for the full amount for which the plaintiff has prayed judgment against the defendant, together with such amount as will be sufficient to cover the plaintiff's costs.

This the ______day of________, _______

__________________________________

(Here designate Clerk Superior

Court or Judge.)

 (1947, c. 693, s. 1; 1999-456, s. 59.)

 

§ 1-440.24.  Form of notice of levy in garnishment proceeding.

The notice of levy to be served on the garnishee shall be substantially in the following form:

State of North Carolina                                                                                    In the Superior Court

________       County

________________,

   Plaintiff,

       vs.

_______________,         Notice to Levy

      Defendant,

       and

________________,

      Garnishee.        

To ______________ Garnishee:

By virtue of the authority contained in an order of attachment issued by the Superior Court of ______ County and directed to me, I hereby levy upon any and all property that you have or hold in your possession for the account, use, or benefit of the defendant, and upon all debts owed by you to the defendant.

You are notified that a lien is hereby created on all the tangible property of the defendant in your possession, and that if you surrender the possession of, or transfer to anyone, any property belonging to the defendant, or if you pay any debt you owe the defendant, unless the same is delivered or paid to me or to the court for such proper disposition as the court may determine, you will be subject to punishment as for contempt, and that judgment may be rendered against you for the value of such property not exceeding the full amount of plaintiff's claim and costs of the action.

This the ____ day of _____, ___

                                                                  ___________________________

                                                                                                      Sheriff of ________ County.

 (1947, c. 693, s. 1; 1999-456, s. 59.)

 

§ 1-440.25.  Levy upon debt owed by, or property in possession of, the garnishee.

The levy in all cases of garnishment shall be made by delivering to the garnishee, or a process agent authorized by him or expressly or impliedly authorized by law, or some representative of a corporate garnishee designated by G.S. 1-440.26, a copy of each of the following:

(1)        The order of attachment,

(2)        The summons to garnishee, and

(3)        The notice of levy. (1947, c. 693, s. 1.)

 

§ 1-440.26.  To whom garnishment process may be delivered when garnishee is corporation.

(a)        When the garnishee is a domestic corporation, the copies of the process listed in G.S. 1-440.25 may be delivered to the president or other head, secretary, cashier, treasurer, director, managing agent or local agent of the corporation.

(b)        When the garnishee is a foreign corporation, the copies of the  process listed in G.S. 1-440.25 may be delivered only to the president, treasurer or secretary thereof personally and while such officer is within the State, except that

(1)        If the corporation has property within this State, or

(2)        If the cause of action arose in this State, or

(3)        If the plaintiff resides in this State,

the copies of the process may be delivered to any of the persons designated in subsection (a) of this section.

(c)        A person receiving or collecting money within this State on behalf of a corporation is deemed to be a local agent of the corporation for the purpose of this section. (1947, c. 693, s. 1.)

 

§ 1-440.27.  Failure of garnishee to appear.

(a)        When a garnishee, after being duly summoned, fails to file a verified answer as required, the clerk of the court shall enter a conditional judgment for the plaintiff against the garnishee for the full amount for which the plaintiff shall have prayed judgment against the defendant, together with such amount as in the opinion of the clerk will be sufficient to cover the plaintiff's costs.

(b)        The clerk shall thereupon issue a notice to the garnishee requiring him to appear not later than 10 days after the date of service of the notice, and show cause why the conditional judgment shall not be made final. If, after service of such notice, the garnishee fails to appear within the time named and file a verified answer to the summons to the garnishee, or if such notice cannot be served upon the garnishee because he cannot be found within the county where the original summons to such garnishee was served, then in either such event, the clerk shall make the conditional judgment final. (1947, c. 693, s. 1.)

 

§ 1-440.28.  Admission by garnishee; setoff; lien.

(a)        When a garnishee admits in his answer that he is indebted to the defendant, or was indebted to the defendant at the time of service of garnishment process upon him or at some date subsequent thereto, the clerk of the court shall enter judgment against the garnishee for the smaller of the two following amounts:

(1)        The amount which the garnishee admits that he owes the defendant or has owed the defendant at any time from the date of the service of the garnishment process to the date of answer by the garnishee, or

(2)        The full amount for which the plaintiff has prayed judgment against the defendant, together with such amount as in the opinion of the clerk will be sufficient to cover the plaintiff's costs.

(b)        When a garnishee admits in his answer that he has in his possession personal property belonging to the defendant, with respect to which the garnishee does not claim a lien or other interest, the clerk of the court shall enter judgment against the garnishee requiring him to deliver such property to the sheriff, and upon such delivery the garnishee shall be exonerated as to the property so delivered.

(c)        When a garnishee admits in his answer that, at or subsequent to the date of the service of the garnishment process upon him, he had in his possession property belonging to the defendant, with respect to which the garnishee does not claim a lien or other interest, but that he does not have such property at the time of his answer, the clerk of the court shall at a hearing for that purpose determine, upon affidavit filed, the value of such property, unless the plaintiff, the defendant and the garnishee agree as to the value thereof, or unless, prior to the hearing, a jury trial thereon is demanded by one of the parties. The clerk shall give the parties such notice of the hearing as he may deem reasonable and by such means as he may deem best.

(d)       When the value of the property has been determined as provided in subsection (c) of this section the court shall enter judgment against the garnishee for the smaller of the two following amounts:

(1)        An amount equal to the value of the property in question, or

(2)        The full amount for which the plaintiff has prayed judgment against the defendant, together with such amount as in the opinion of the clerk will be sufficient to cover the plaintiff's costs.

(e)        When a garnishee alleges in his answer that the debt or the personal property due to be delivered by him to the defendant will become payable or deliverable at a future date, and the plaintiff, within 20 days thereafter, files a reply denying such allegation, the  issue thereby raised shall be submitted to and determined by a jury. If it is not denied that the debt owed or the personal property due to be delivered to the defendant will become payable or deliverable at a future date, or if is so found upon the trial, judgment shall be given against the garnishee which shall require the garnishee at the due date of the indebtedness to pay the plaintiff such an amount as is specified in subsection (a) of this section, or at the deliverable date of the personal property to deliver such property to the sheriff in order that it may be sold to satisfy the plaintiff's claim.

(f)        In answer to a summons to garnishee, a garnishee may assert any right of setoff which he may have with respect to the defendant in the principal action.

(g)        With respect to any property of the defendant which the garnishee has in his possession, a garnishee, in answer to a summons to garnishee, may assert any lien or other valid claim amounting to an interest therein. No garnishee shall be compelled to surrender the possession of any property of the defendant upon which the garnishee establishes a lien or other valid claim amounting to an interest therein, which lien or interest attached or was acquired prior to service of the summons to garnishee, and such property only may be sold subject to the garnishee's lien or interest. (1947, c. 693, s. 1.)

 

§ 1-440.29.  Denial of claim by garnishee; issues of fact.

(a)        In addition to any other instances when issues of fact arise in a garnishment proceeding, issues of fact arise

(1)        When a garnishee files an answer such that the court cannot determine therefrom whether the garnishee intends to admit or deny that he is indebted to, or has in his possession any property of, the defendant, or

(2)        When a garnishee files an answer denying that he is indebted to, or has in his possession any property of, the defendant, or was indebted to, or had in his possession any property of, the defendant at the time of the service of the summons upon him or at any time since then, and the plaintiff, within 20 days thereafter, files a reply alleging the contrary.

(b)        When a jury finds that the garnishee owes the defendant a specific sum of money or has in his possession property of the defendant of a specific value, or owed the defendant a specific sum of money or had in his possession property of the defendant of a specific value at the time of the service of the summons upon him or at any time since then, the court shall enter judgment against the garnishee for the smaller of the two following amounts:

(1)        The amount specified in the jury's verdict, or

(2)        The full amount for which the plaintiff has prayed judgment against the defendant, together with such amount as in the opinion of the clerk will be sufficient to cover the plaintiff's costs. (1947, c. 693, s. 1.)

 

§ 1-440.30.  Time of jury trial.

All issues arising under G.S. 1-440.28 or G.S. 1-440.29 shall, when a jury trial is demanded by any party, be submitted to and determined by a jury at the same time the principal action is tried, unless the judge, on motion of any party for good cause shown, orders an earlier trial or a separate trial. (1947, c. 693, s. 1.)

 

§ 1-440.31.  Payment to defendant by garnishee.

Any garnishee who shall pay to the defendant any debt owed the defendant or deliver to the defendant any property belonging to the defendant, after being served with garnishment process, and while  the garnishment proceeding is pending, shall not thereby relieve himself of liability to the plaintiff. (1947, c. 693, s. 1.)

 

§ 1-440.32.  Execution against garnishee.

(a)        Pursuant to a judgment against a garnishee, execution may be issued against such garnishee prior to judgment against the defendant in the principal action. The court may issue such execution  without notice or hearing. All property seized pursuant to such execution shall be held subject to the order of the court pending judgment in the principal action.

(b)        The court, pending judgment in the principal action, may permit the property to remain in the garnishee's possession upon the garnishee's giving a bond in the same manner and on the same conditions as is provided by G.S. 1-440.39 with respect to the discharge of an attachment by the defendant. (1947, c. 693, s. 1.)

 

Part 4. Relating to Attached Property.

§ 1-440.33.  When lien of attachment begins; priority of liens.

(a)        Upon securing the issuance of an order of attachment, a plaintiff may cause notice of the issuance of the order to be filed with the clerk of the court of any county in which the plaintiff believes that the defendant has real property which is subject to levy pursuant to such order of attachment. Upon receipt of such notice the clerk shall promptly docket the same on the lis pendens docket.

(b)        When the clerk receives from the sheriff a certificate of levy on real property as provided by G.S. 1-440.17, the clerk shall promptly note the levy on his judgment docket and index the same. When the levy is thus docketed and indexed,

(1)        The lien attaches and relates back to the time of the filing of the notice of lis pendens if the plaintiff has prior to the levy caused notice of the issuance of the order of attachment to be properly entered on the lis pendens docket of the county in which the land lies, as provided by subsection (a)  of this section.

(2)        The lien attaches only from the time of the docketing of the  certificate of levy if no entry of the issuance of the order of attachment has been made prior to the levy on the lis pendens docket of the county in which the land lies.

(c)        A levy on tangible personal property of the defendant in the  hands of the garnishee, when made in the manner provided by G.S. 1-440.25, creates a lien on the property thus levied on from the time of such levy.

(d)       If more than one order of attachment is served with respect to  property in possession of the defendant or is served upon a garnishee, the priority of the order of the liens is the same as the order in which the attachments were levied, subject to the provisions of subsection (b) of this section, relating to the time when a lien of attachment begins with respect to real property.

(e)        If two or more orders of attachment are served simultaneously,  liens attach simultaneously, subject to the provisions of subsection (b) of this section, relating to the time when a lien of attachment begins with respect to real property.

(f)        If the funds derived from the attachment of property on which liens become effective simultaneously are insufficient to pay the judgments in full of the simultaneously attaching creditors who have liens which begin simultaneously, such funds are prorated among such creditors according to the amount of the indebtedness of the defendant to each of them, respectively, as established upon the trial.

(g)        If more than one order of attachment is served on a garnishee,  the court from which the first order of attachment was issued shall, upon motion of the garnishee or of any of the attaching creditors, make parties to the action all of the attaching creditors, who are not already parties thereto in order that any questions of priority among  the attaching creditors may be determined in that action and in that court. (1947, c. 693, § 1.)

 

§ 1-440.34.  Effect of defendant's death after levy.

(a)        In case of the death of the defendant, after the issuance of an order of attachment and after a levy is made thereunder but before service of summons is had or before an appearance is entered in the principal action, the levy shall remain in force

(1)        If the cause of action set forth by the plaintiff in the principal action is one which survives, and

(2)        If service is completed on the personal representative of the defendant within three months from the date of his qualification.

(b)        If a levy has been made upon real property and the defendant  dies before such real property is sold pursuant to the attachment, the lien of the attachment shall continue but the judgment may be enforced only through the defendant's personal representative in the regular course of administration. (1947, c. 693, s. 1.)

 

§ 1-440.35.  Sheriff's liability for care of attached property; expense of care.

The sheriff is liable for the care and custody of personal property levied upon pursuant to an order of attachment just as if he had seized it under execution. Upon demand of the sheriff, the plaintiff shall advance to the sheriff from time to time such amount as may be required to provide the necessary care and to maintain the custody of the attached property. The expense so incurred in caring for and maintaining custody of attached property shall be taxed as part of the costs of the action. (1947, c. 693, s. 1.)

 

Part 5. Miscellaneous Procedure Pending Final Judgment.

§ 1-440.36.  Dissolution of the order of attachment.

(a)        At any time before judgment in the principal action, a  defendant whose property has been attached may specially or generally  appear and move, either before the clerk or the judge, to dissolve the order of attachment.

(b)        When the defect alleged as grounds for the motion appears upon the face of the record, no issues of fact arise, and the motion is heard and determined upon the record.

(c)        When the defect alleged does not appear upon the face of the record, the motion is heard and determined upon the affidavits filed by the plaintiff and the defendant, unless, prior to the actual commencement of the hearing, a jury trial is demanded in writing by the plaintiff or the defendant. Either the clerk or the judge hearing and determining the motion to dissolve the order of attachment shall find the facts upon which his ruling thereon is based. If a jury trial is demanded by either party, the issues involved shall be submitted and determined at the same time the principal action is tried, unless  the judge, on motion of any party for good cause shown, orders an earlier trial or a separate trial. (1947, c. 693, s. 1.)

 

§ 1-440.37.  Modification of the order of attachment.

At any time before judgment in the principal action, the defendant may apply to the clerk or the judge for an order modifying the order of attachment. Such motion shall be heard upon affidavits. If the order is modified, the court making the order of modification shall make such provisions with respect to bonds and other incidental  matters as may be necessary to protect the rights of the parties. (1947, c. 693, s. 1.)

 

§ 1-440.38.  Stay of order dissolving or modifying an order of attachment.

Whenever a plaintiff appeals from an order dissolving or modifying an order of attachment, such order shall be stayed and the attachment lien with respect to all property theretofore attached shall remain in effect until the appeal is finally disposed of. In order to protect the defendant in the event that an order dissolving or modifying an order of attachment is affirmed on appeal, the court from whose order the appeal is taken may, in its discretion, require the plaintiff to execute and deposit with the clerk an additional bond with sufficient surety and in an amount deemed adequate by the court to indemnify the defendant against all losses which he may suffer on account of the continuation of the lien of the attachment pending the determination of the appeal. (1947, c. 693, s. 1.)

 

§ 1-440.39.  Discharge of attachment upon giving bond.

(a)        Any defendant whose property has been attached may move, either before the clerk or the judge, to discharge the attachment upon his giving bond for the property attached. If no prior general appearance has been made by such defendant, such motion shall  constitute a general appearance.

(b)        The court hearing such motion shall make an order discharging such attachment upon such defendant's filing a bond as follows:

(1)        If it is made to appear to the satisfaction of the court by affidavit that the property attached is of a greater value than the amount claimed by the plaintiff, the court shall require a bond in double the amount of the judgment prayed for by the plaintiff, and the condition of such bond shall be that if judgment is rendered against the defendant, the defendant will pay to the plaintiff the amount of the judgment and all costs that the defendant may be ordered to pay, the surety's liability, however, to be limited to the amount of the bond.

(2)        If it is made to appear to the satisfaction of the court by affidavit that the property attached is of less value than the amount claimed by the plaintiff, the court shall, upon affidavits filed, determine the value thereof and shall require a bond in double the amount of such value, and the condition of the bond shall be that if judgment is rendered against the defendant, the defendant will pay to the plaintiff an amount equal to the value of such property.

(c)        If a bond is filed as provided in subsection (b) of this section, all property of such defendant then remaining in the possession of the sheriff pursuant to such attachment, including, but not by way of limitation, money collected and the proceeds of sales, shall be delivered to the defendant and shall thereafter be free from the attachment.

(d)       The discharge of an attachment as provided by this section does not bar the defendant from exercising any right provided by G.S. 1-440.36, 1-440.37 or 1-440.40. (1947, c. 693, s. 1.)

 

§ 1-440.40.  Defendant's objection to bond or surety.

(a)        At any time before judgment in the principal action, on motion of the defendant, the clerk or judge may, if he deems it necessary in order to provide adequate protection, require an increase in the amount of the bond previously given by or required of the plaintiff.

(b)        At any time before judgment in the principal action the defendant may except to any surety upon any bond given by the plaintiff pursuant to the provisions of this Article, in which case the surety shall be required to justify, and the procedure with respect thereto shall be as is prescribed for the justification of bail in arrest and bail proceedings. (1947, c. 693, s. 1.)

 

§ 1-440.41.  Defendant's remedies not exclusive.

The exercise by the defendant of any one or more rights provided by G.S. 1-440.36 through 1-440.40 does not bar the defendant from exercising any other rights provided by those sections. (1947, c. 693, s. 1.)

 

§ 1-440.42.  Plaintiff's objection to bond or surety; failure to comply with order to furnish increased or new bond.

(a)        At any time before judgment in the principal action, on motion of the plaintiff, the clerk or judge may, if he deems it necessary in order to provide adequate protection, require an increase in the amount of the bond previously given by or required of any defendant, garnishee or intervenor.

(b)        At any time before judgment in the principal action the plaintiff may except to any surety upon any bond given by any defendant, garnishee or intervenor pursuant to the provisions of this Article, in which case the surety shall be required to justify, and the procedure with respect thereto shall be as is prescribed for the justification of bail in arrest and bail proceedings.

(c)        Upon failure of a defendant, garnishee or intervenor to comply  with an order requiring an increase in the amount of a bond previously given, or upon failure to comply with an order requiring a new bond when the surety on the previous bond is unsatisfactory, the court may, in addition to any other action with respect thereto, issue an order of attachment directing the sheriff to seize and take into his possession property released upon the giving of the previous bond, if the person failing to comply with the order still has possession of the same. Such property when retaken into his possession by the sheriff shall be subject to all the provisions of this Article relating to attached property. (1947, c. 693, s. 1.)

 

§ 1-440.43.  Remedies of third person claiming attached property or interest therein.

Any person other than the defendant who claims property which has been attached, or any person who has acquired a lien upon or an interest in such property, whether such lien or interest is acquired prior to or subsequent to the attachment, may

(1)        Apply to the court to have the attachment order dissolved or modified, or to have the bond increased, upon the same conditions and by the same methods as are available to the defendant, or

(2)        Intervene and secure possession of the property in the same manner and under the same conditions as is provided for intervention in claim and delivery proceedings. (1947, c. 693, s. 1.)

 

§ 1-440.44.  When attached property to be sold before judgment.

(a)        The sheriff shall apply to the clerk or to the judge for authority to sell property, or any share or interest therein, seized pursuant to an order of attachment,

(1)        If the property is perishable, or

(2)        If the property is not perishable, but

a.         Will materially deteriorate in value pending litigation, or

b.         Will likely cost more than one fifth of its value to keep  pending a final determination of the action, and

c.         Is not discharged from the attachment lien in the manner provided by G.S. 1-440.39 within ten days after the seizure thereof.

(b)        If the court so orders, the property described in subsection (a) of this section shall thereupon be sold under the direction of the court unless the discharge of the same is secured by the defendant or other person interested therein, in the manner provided by G.S. 1-440.39, prior to such sale. The proceeds of such sale shall be liable for any judgment obtained in the principal action and shall be retained by the sheriff to await such judgment. (1947, c. 693, s. 1.)

 

Part 6. Procedure after Judgment.

§ 1-440.45.  When defendant prevails in principal action.

(a)        If the defendant prevails in the principal action, or if the order of attachment is for any reason dissolved, dismissed or set aside, or if service is not had on the defendant as provided by G.S. 1-440.7,

(1)        The defendant shall be entitled to have delivered to him

a.         All bonds taken for his benefit whether filed in the proceedings or taken by an officer, and

b.         The proceeds of any sales and all money collected, and

c.         All attached property remaining in the officer's hands, and

(2)        Any garnishee shall be entitled to have vacated any judgment theretofore taken against him.

(b)        Either the clerk or the judge shall have authority, upon motion of the defendant or any garnishee, to make any such order as may be necessary or proper to carry out the provisions of subsection (a) of this section.

(c)        Upon judgment in his favor in the principal action, the defendant may thereafter, by motion in the cause, recover on any bond  taken for his benefit therein, or he may maintain an independent action thereon. (1947, c. 693, s. 1; 1951, c. 837, s. 8.)

 

§ 1-440.46.  When plaintiff prevails in principal action.

(a)        If judgment is entered for the plaintiff in the principal action, the sheriff shall satisfy such judgment out of money collected by him or paid to him in the attachment proceeding or out of property attached by him as follows:

(1)        After paying the costs of the action, he shall apply on the judgment as much of the balance of the money in his hands as may be necessary to satisfy the judgment.

(2)        If the money so applied is not sufficient to pay the judgment in full, the sheriff shall, upon the issuance of an execution on the judgment, sell sufficient attached property, except debts and evidences of indebtedness to satisfy the judgment.

(3)        While the judgment remains unsatisfied, and notwithstanding the pendency of the sale of any personal or real property as provided by subdivision (2) of this subsection, the sheriff shall collect and apply on the judgment any debts or evidences of indebtedness attached by him.

(4)        If, after the expiration of six months from the docketing of the judgment, the judgment is not fully satisfied, the sheriff shall, when ordered by the clerk or judge, as provided in subsection (b) of this section, sell all debts and notes and other evidences of indebtedness remaining unpaid in his hands, and shall apply the net proceeds thereof, or as much thereof as may be necessary, to the satisfaction of the judgment. To forestall the running of the statute of limitations, earlier sale may be ordered in the discretion of the court.

(b)        In order to secure the sale of the remaining debts and evidences of indebtedness as provided in subsection (a)(4) of this section, the plaintiff may move therefor, either before the clerk or the judge, and shall submit with his motion

(1)        His affidavit setting forth fully the proceedings had by the sheriff since the service of the attachment, listing or describing the property attached, and showing the disposition thereof, and

(2)        The affidavit of the sheriff that he has endeavored to collect the debts or evidences of indebtedness and that there remains uncollected some part thereof.

Upon the filing of such motion, the court to which the motion is made shall give the defendant or his attorney such notice of the hearing thereon as the court may deem reasonable, and by such means as the court may deem best. Upon the hearing, the court may order the sheriff to sell the debts and other evidences of indebtedness remaining in his hands, or may make such other order with respect thereto as the court may deem proper.

(c)        In case of the sale of a share of stock of a corporation or of property in a warehouse for which a negotiable warehouse receipt has been issued, the sheriff shall execute and deliver to the purchaser a certificate of sale therefor, and the purchaser shall have all the rights with respect thereto which the defendant had.

(d)       Upon judgment in his favor in the principal action, the plaintiff is entitled to judgment on any bond taken for his benefit therein.

(e)        When the judgment and all costs of the proceedings have been paid, the sheriff, upon demand of the defendant, shall deliver to the defendant the residue of the attached property or the proceeds thereof. (1947, c. 693, s. 1; 1951, c. 837, s. 9.)

 

Part 7.  Attachments in Justice of the Peace Courts.

§§ 1-440.47 through 1-440.56:  Repealed by Session Laws 1971, c.  268, s. 34.

 

Part 8.  Attachment in Other Inferior Courts.

§ 1-440.57:  Repealed by Session Laws 1971, c.  268, s. 34.

 

Part 9.  Superseded Sections.

§§ 1-441 through 1-471:  Superseded by Session Laws 1947, c.  693, codified as §§ 1-440.1 through 1-440.57.