(Caption.) AFFIDAVIT FOR ORDER OF ATTACHMENT plaintiff being first duly sworn deposes and says that ha commenced an action in the district court against to recover the sum of $ now due and payable to the plaintiff from the defendant, and affiant says that the said claim is just, and he ought, as he believes, to recover thereon the sum of -, and the defendant has with the intent to defraud $ his creditors. Subscribed in my presence and sworn to before me this day of 19—. ANOTHER FORM Court Clerk. A. B., being first duly sworn, on oath says: That he is the plaintiff in the above entitled cause; that said plaintiff has commenced this action against said defendant for the ultimate recovery of sixteen thousand dollars ($16,000.00); that the defendant is about to convey or otherwise dispose of her property with the fraudulent intent of defrauding or cheating her creditors, or to hinder or delay them in the collection of their debts, and is about to remove her property, or a material part thereof, with intent or to the effect of cheating or defrauding the plaintiff, or of hindering or delaying him in the collection of his debts; that the defendant is indebted to said plaintiff in said sum, and that said claim is just and wholly unpaid and will become due as follows, to wit: Five promissory notes of the defendant, bearing date of May 1, 1920, for the sum of twenty-seven hundred dollars ($2,700.00) each. The first one of said notes became due and payable on May 1, 1921; the second one of said notes will become due and payable on May 1, 1922; the third one of said notes will become due and payable on May 1, 1923; the fourth one of said notes will become due and payable on May 1, 1924; and the fifth one of said notes will become due and payable on May 1, 1925. There is also due and owing by defendant to plaintiff two thousand dollars ($2,000.00) for one lot of household furniture hereto fore delivered to defendant, of a value of two thousand dollars ($2,000.00). That there is also due and owing by defendant to plaintiff five hundred dollars ($500.00) for one grandfather's clock, heretofore sold and delivered to defendant by plaintiff. Affiant further says that said 'defendant is a nonresident, and that this cause of action is one arising upon contract. A. B., being first duly sworn according to law, on oath says: That he is the plaintiff in the above entitled cause; that the defendant in the above entitled cause, C. D., owns and holds title to, under her former name of C. B., certain property in the city of state of Oklahoma; that the said defend-,county of ant is about to make a sale or conveyance or disposition of her property with the fraudulent intent of cheating or defrauding the plaintiff, or to hinder or delay him in the collection of his debts, or is about to remove her property or a material part thereof or the proceeds therefrom, with intent or to the effect of cheating or defrauding the plaintiff, or of hindering or delaying him in the collection of his debts; that the defendant, C. D., is indebted to the plaintiff on four (4) promissory notes executed by the defendant under the name of C. B. to the plaintiff, bearing date of 19, each for the sum of dollars ($ -); that said notes are not yet due and are wholly unpaid, and are now held and owned by said plaintiff, and that said notes shall mature and shall become due respectively two, three, four, and five years from date; that said plaintiff has commenced an action against said defendant on, said notes not yet due by reason of the proposed acts of the defendant above alleged; that said defendant, C. D., is a nonresident of the state of Oklahoma; that the said claims against Ina Goldman. are just and arise from contract; that plaintiff herein respectfully asks that an order of attachment be issued in this action, An affidavit in attachment, which is merely defective, may be amended, the same as any other pleading in the case.** Where the original affidavit alleged nonresidence of defendant, that allegation need not be repeated in an amended affidavit.** 44 Reister v. Land, 76 P. 156, 14 Okl. 34. A clerical error in naming plaintiff as the affiant in the body of the affidavit, which was signed by his attorney, may be amended. Dunn v. Drummond, 51 P. 656, 4 Okl. 461. In an attachment suit for the price of goods purchased from plaintiff under fraudulent representations, plaintiff may amend the attachment affidavit so as to show that defendant has disposed of the goods, thus preventing plaintiff from recovering by replevin. Jaffray v. Wolf, 4 Okl. 303, 47 P. 496. An attachment affidavit which fails to state the nature of plaintiff's claim may be amended after levy. Rothweiler v. Mason, 141 P. 245, 92 Kan. 612, rehearing denied 142 P. 267, 93 Kan. 4. The affidavit sworn to by the plaintiff before a notary public, who is the attorney of record of the plaintiff in the action, is only voidable, and may be amended. Swearingen v. Howser, 14 P. 436, 37 Kan. 126; Yoakam v. Same, 14 P. 438, 37 Kan. 130. Where the original affidavit stated that plaintiff's claim was due when the action was commenced, but did not sufficiently show its nature, and an amended affidavit stated how the demand originated, the two affidavits together were sufficient, though the amended affidavit failed to show that the claim accrued before action brought. Rothweiler v. Mason, 142 P. 267, 93 Kan. 4, denying rehearing 141 P. 245, 92 Kan. 612. Where the jurat to the affidavit is by mistake postdated, so that it appears to have been sworn to after the issuance of the writ, it is error to refuse to allow it to be amended. Arkansas City Lumber Co. v. Scott, 47 P. 545, 5 Kan. App. 636. Where an affidavit in attachment charging fraudulent acts and intentions was properly held insufficient to sustain an attachment for a debt not due, though it was sufficient for a debt due, it was error to refuse a sufficient amendment and discharge the attachment. Baker Wire Co. v. Kingman, 24 P. 476, 44 Kan. 270. 45 Schultz v. Stiner, 157 P. 265, 98 Kan, 45, denying rehearing 155 P. 1073, 97 Kan. 555. When the right of attachment under one section of the statute has been fully determined against plaintiff, he cannot be allowed to amend his affidavit so as to change his cause of action, and retry his cause.46 § 1781. Bond-Form "The order of attachment shall not be issued by the clerk until an undertaking on the part of the plaintiff has been executed by one or more sufficient sureties, approved by the clerk and filed in his office, in a sum not less than double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay to the defendant all damages that he may sustain by reason of the attachment, including reasonable attorneys' fees, if the order be wrongfully obtained; but no undertaking shall be required where the party or parties defendant are all non-residents of the State, or a foreign. corporation." 47 Where all defendants against whom attachment is issued are nonresidents, no bond need be given, although there be other defendants in the case who are residents.48 Where an attachment bond is given and approved by the clerk of the court, and appears to be valid on its face, and no objection. is made in the district court, it will be presumed that it was satisfactory to defendant."" (Caption.) ATTACHMENT BOND Whereas, said plaintiff has commenced a civil action against said defendant in said court to recover the sum of $ and has applied to the clerk of said court, by filing the necessary affidavit, for an order of attachment to be issued in said action against the said defendant: Now, therefore, we,, as principal, and and -, as sureties hereby undertake to said defendant in the penal sum of $ that the plaintiff shall pay to the said defendant all 46 Jaffray v. Wolfe, 33 P. 945, 1 Okl. 312. 47 Rev. Laws 1910, § 4814. 48 Head v. Daniels, 15 P. 911, 38 Kan. 1. 49 Myers v. Cole, 4 P. 169, 32 Kan. 138. damages which the said defendant may sustain by reason of said attachment if the order be wrongfully obtained. "The defendant may, at any time before judgment, after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court is satisfied that the surety in the plaintiff's undertaking has removed from this State, or is not sufficient for the amount thereof, it may vacate the order of attachment and direct restitution of any property taken under it, unless, in a reasonable time, to be fixed by the court, sufficient security be given by the plaintiff." § 1783. Judgment 9950 Where an attachment is issued on negotiable notes not due, judg ment cannot be entered thereon before the last day of grace,$1 A judgment in an attachment proceeding entered by default determines the truth of attachment affidavit and the propriety of the attachment.52 Where the judgment is for the recovery of so much money and the costs of the action, and the sale of the attached property, the judgment for costs is a lien on the attached property, and may be enforced by an order of sale.53 The final judgment, in an action wherein a devisee's interest in realty is attached, may allow the executor to sell the attached property as directed by the will and provide for the application of the defendant's share of the proceeds upon the judgment against him." 50 Rev. Laws 1910, § 4861. 51 Miller v. Wichita Overall & Shirt Mfg. Co., 35 P. 799, 53 Kan. 75, 52 Gooden v. Lewis, 101 Kan. 482, 167 P. 1133, 53 Merwin v. Hawker, 1 P. 640, 31 Kan. 222. 54 Ward v. Benner, 131 P. 609, 89 Kan. 369. |