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"Where a debtor has sold, conveyed or otherwise disposed of his property with the fraudulent intention of cheating or defrauding his creditors, or to hinder or delay them in the collection of their debts, or is about to make such sale or conveyance or disposition of his property with such fraudulent intent, or is about to remove his property or a material part thereof, with intent or to the effect of cheating or defrauding his creditors or of hindering or delaying them in the collection of their debts, a creditor may bring an action upon his claim before it is due, and have an attachment against the property of the debtor as in other cases; but before such attachment shall be issued or such action maintained, the plaintiff or his agent or attorney shall make oath in writing setting forth the grounds of such attachment as in other cases, and also showing the nature of plaintiff's claim that it is just, when the same will become due, and the existence of some one or more of the grounds for an attachment enumerated in this section." 18 The remedy of attachment on claims not due is not a matter of grace, in the discretion of the court, but a right given the creditor, 19

"The plaintiff in such action shall not have judgment on his claim before it is due, but the proceedings on the attachment may be conducted without delay."

"20

DIVISION II.-PROPERTY SUBJECT TO ATTACHMENT

§ 1774. Personal property

Annual crops sown by the owner of the soil,21 shares of corporate stock, and an equitable interest in land are subject to attachment.2 23

18 Rev. Laws 1910, § 4864.

19 Nelson v. Stull, 70 P. 590, 65 Kan. 585, affirming judgment 68 P. 617, 65 Kan. 585.

20 Rev. Laws 1910, § 4865.

21 Annual crops sown by the owner of the soil, and which are the result of care, are, while growing, personal property subject to attachment. Polley v. Johnson, 35 P. 8, 52 Kan. 478, 23 L. R. A. 258.

22 Corporate stock is subject to attachment. Sess. Laws 1919, p. 141, §§ 1-7; Harris v. Mid-Continent Life Ins. Co., 75 Okl. 105, 182 P. 85.

23 S. made a parol contract with D. to exchange a stock of goods for land. D. executed a deed, leaving blank the space for the grantee's name, and

Money received by a wife from her husband as her share in the division of their property is not exempt from attachment, notwithstanding an agreement that it was in full settlement of her rights, including alimony, where a divorce was subsequently granted for her fault and without any allowance to her.24

The right of a domestic railroad to use, on its return trip, a foreign railroad's car which it has unloaded, which right is superior to that of an attaching creditor of the foreign road, is not waived by its local agent requesting that the attaching officer remove the car from the domestic road's tracks or by setting the car on stub tracks so as to be under control of the officer.25

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A levy of attachment on mortgaged chattels, whereby the officer takes possession of the property, to the exclusion of the rights of every one except the mortgagee, is good as against defendant.""

§ 1776. Real property

Where the debtor holds only the legal title to property, the creditor cannot subject such property to liabilities of the debtor.27

Where the claimant of lots had been adjudged entitled thereto, though deed has not been delivered pending his protest as to fees, he had both legal and equitable title and attachable interest.28

A devisee's interest in real estate is subject to attachment, although the will gives a power to the executor to sell the property and distribute the proceeds among the devisees.29

placed it with a third person, to be delivered on delivery of the goods at h.s place of residence. The goods were consigned by S. to D., and thereafter, and before they arrived, attachments were levied by creditors of S. on the land. Afterwards the goods were received by D. in due time, and the deed was thereupon delivered to S. who inserted his wife's name as grantee, and delivered the deed to her. Held, that S. had an equitable interest in the land; hence the attachments were valid. Shanks v. Simon, 46 P. 774, 57 Kan. 385.

24 Milberger v. Veselsky, 155 P. 957, 97 Kan, 433.

25 Dye v. Denver & R. G. R. Co., 153 P. 502, 96 Kan. 676.

26 Myers v. Cole, 4 P. 169, 32 Kan. 138.

27 Where purchaser of agency contract, void as against public policy, gave deed to secure price, attaching creditor of grantee cannot subject the land, since that would, in effect, enforce void contract. Saylor v. Crooker, 156 P. 737, 97 Kan. 624, Ann. Cas. 1918D, 473.

28 Richardson v. Carr (Okl.) 171 P. 476.

29 Ward v. Benner, 131 P. 609, 89 Kan. 369.

§ 1777. Property in custodia legis

That possession of personal property had been obtained under a replevin bond did not preclude it from being taken on an attachment issued against both claimants.30

Where property has been attached in good faith, and subsequently taken from the officer on an order of replevin under a void mortgage, and it appears that there is not a bona fide controversy between the attaching creditor and the officer on the one hand and the mortgagee on the other, the property is not in custodia legis pending the result of the replevin suit, and so exempt from a levy under further orders of attachment against the original judgment debtor.31

DIVISION III.-PROCEDURE

§ 1778. Jurisdiction and venue

For purposes of attachment the situs of shares of corporate stock is within the state where corporation resides, and they may be lawfully levied on therein, though owned by a nonresident.32

An action in attachment may be brought in any county where a nonresident has property, though he is at the time personally present in another county of the state, and service of the summons on him in such other county will give the court jurisdiction, at least to the extent of the attached property.33

Where two joint makers of a promissory note, residing in different counties, are sued before the note is due, in the county in which one of them resides, and a summons is served upon a defendant residing in the county in which the action is commenced, and a summons and order of attachment are issued to the other county, and are there served upon the defendant residing in that county, and his property situated therein is attached, and no order of attachment is issued, and no ground for an attachment exists against the defendant residing in the county in which the ac

30 Rothweiler v. Mason, 141 P. 245, 92 Kan. 612, rehearing denied 142 P. 267, 93 Kan. 4.

31 First Nat. Bank v. Gerson, 32 P. 905, 50 Kan. 582, modifying order 32 P. 366; Id., 32 P. 908, 50 Kan. 589; Westheimer v. Same, Id.; McPike v. Same, Id. Stickney v. Same, Id.; Rosenberg v. Same, Id.

32 Harris v. Mid-Continent Life Ins. Co., 75 Okl. 105, 182 P. 85; Rev. Laws 1910, §§ 1237, 4815, 4819, 4820.

33 Reynolds v. Williamson, 74 P. 1122, 68 Kan. 239.

tion is commenced, the action is not rightfully brought in the county in which it is brought, and the defendant in the other county may have the attachment dissolved.*

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"The order of attachment shall be issued by the clerk of the court in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing:

"First. The nature of the plaintiff's claim.

"Second. That it is just.

"Third. The amount which the affiant believes the plaintiff ought to recover.

"Fourth. The existence of some one of the grounds for an attachment enumerated in the preceding section." 35

The verification of an affidavit for attachment before the attor ney of record of the plaintiff is unauthorized.36

An affidavit in the language of the statute, unaccompanied by any facts showing them to be true, will support the writ."

34 Rullman v. Hulse, 5 P. 176, 32 Kan. 598, rehearing denied 7 P. 210, 33 Kan. 670.

35 Rev. Laws 1910, § 4813.

Before an attachment is issued, the existence of some one of the statutory grounds therefor must be shown by affidavit. Doggett v. Bell, 4 P. 292, 32 Kan. 298.

36 Tootle v. Smith, 7 P. 577, 34 Kan. 27.

37 Dunn v. Claunch, 76 P. 143, 13 Okl. 577.

Under Civ. Code, § 190 (St. 1893, $ 4068), providing that plaintiff may have an attachment in a civil action on the ground that defendant fraudulently contracted the debt for which suit was brought, a positive statement in an affidavit of attachment in the language of the statute is sufficient. Thwing v. Winkler, 75 P. 1126, 13 Okl. 643; Same v. Humphrey, 75 P. 1127, 13 Okl, 646. An attachment may be based on both of the grounds that the defendant so conceals himself that a summons cannot be served upon him, and that the defendant is a nonresident of the territory, and both may be alleged in the affidavit. Raymond v. Nix, 49 P. 1110, 5 Okl, 656.

Allegations of affidavit for an attachment held to sufficiently show that action in which attachment was asked was "a civil action for the recovery of money" within Rev. Laws 1910, § 4812, permitting the attachment. Millus v. Lowrey Bros., 63 Okl. 261, 164 P. 663, L. R. A. 1918B, 336.

Requirement of Rev. Laws 1910, § 4813, that affidavit for attachment shall show that plaintiff's claim "is just" is satisfied by allegation in language of the section that it "is just." Millus v. Lowrey Bros., 63 Okl. 261, 164 P. 663, L. R. A. 1918B, 336.

An affidavit in attachment in an action on a claim not due alleged that de

The affidavit for attachment must state the amount claimed to be due.38

Where allegations of the affidavit are insufficient to show that the action in which it was sought was a civil action for the recovery of money, either the answer filed or the evidence in the case may cure the defect.39

An affidavit which has been lost or destroyed is presumed, when attacked collaterally, to have been sufficient.40

Where an "affidavit alleged that defendants have sold, conveyed, or otherwise disposed of their property with a fraudulent intent," etc., such allegation is sufficient to sustain an attachment, since it is simply a disjunctive statement of two phases of the same ground of attachment, and not two grounds disjunctively stated.11

Where an affidavit is sworn to 18 days before it is filed, or the action commenced, and the charge is of some fact which, having occurred, is not subject to change, as that the debt was fraudulently contracted, the lapse of time is not of itself so great as to compel the discharge of the attachment.42

Where the grounds for an order of attachment are stated in the disjunctive or in the alternative, and not positively or directly, but no point with reference to this manner of stating the grounds is presented to the court below, such point will not be considered by the supreme court.*

43

fendants had disposed of their property and were causing the same to be removed out of the county for the purpose and with the fraudulent intent to defraud their creditors. Held sufficiently broad to include an intent to "hin-* der and delay their creditors," so that it was error to sustain a motion to dismiss for the reason that a specific intent to defraud had not been established when the acts complained of were done with intent to hinder and delay creditors. Clayton v. Clark, 92 P. 1117, 76 Kan. 832, 123 Am. St. Rep. 169. 38 Tootle v. Smith, 7 P. 577, 34 Kan. 27.

39 Millus v. Lowrey Bros., 63 Okl. 261, 164 P. 663, L. R. A. 1918B, 336. 40 An affidavit for an attachment was filed, and the property attached pursuant thereto was, after final judgment, sold on execution. Subsequently, in an action relative to said property, the affidavit was attacked collaterally; but it had been lost or destroyed, and there was no evidence showing wherein it was not sufficient. Held, that it must be presumed to have been sufficient. Head v. Daniels, 15 P. 911, 38 Kan. 1.

41 Cook v. Burnham, 44 P. 447, 3 Kan. App. 27, 42 Adams v. Lockwood, 2 P. 626, 30 Kan. 373.

43 Leser v. Glaser, 4 P. 1026, 32 Kan. 516.

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