SHERIFF'S RETURNS

Received this order on the

day of 19—, at

o'clock
the property of the within named defendant,

m., I executed the same by going to the place where

described in

the inventory and the appraisement hereunto annexed, was found, and there on the

and

day of

19—, at

o'clock and

m., of said day, in the presence and hearing of two credible persons, declared that by virtue of said order I attached said property at the suit of the within named plaintiff and with two householders of the county, who were by me first duly sworn, did make a true inventory and appraisement of said property, which inventory and appraisement was by me and said householders signed, and is hereunto annexed and returned with this order. I delivered a copy of this order duly certified to each of said defendants

I cannot find the within defendant,

in my county. Said property is in my custody, held subject to the order of the within named court. 19, I delivered said property at

tached to —, in whose possession it was found, upon the execution by such person in my presence of the undertaking herewith returned.

Sheriff.

19—, I executed the same by going to the place where the property described in an inventory and appraisement made by me under an order of attachment made in the action of against the within named defendant,

was held, and there on o'clock

and

m., of said

two credible

persons, I did declare that by virtue of the within named order I

attached said property of said defendant,

prior attachment. I delivered a copy of this order duly certified to

said defendant,

in my county.

Sheriff,

Deputy.

I cannot find any property of the within named defendant, in my county.

§ 1792.

Defects

Sheriff,

By

Deputy.

A defect in the description of the property levied upon, contained in the sheriff's return on a writ of attachment, is cured by judgment foreclosing attachment lien and more fully describing property, so as to withstand attack in subsequent proceeding alleging invalidity of former proceeding on the face of a mandatory record."

Where the return of an order of attachment shows that the officer attached certain real estate, and that when he attached the same he in fact took possession thereof, and left a true copy of the order, but does not state in so many words that he left a copy of the order with the occupant, or, if there were no occupant, in a conspicuous place on the real estate, it will be presumed that the officer did his duty when he attached the property, and therefore that the service of the order of attachment by him was properly and legally made.70

The return of a sheriff as to property taken in an attachment proceeding or as to the value thereof is not conclusive against the defendant.71

Where the return of an officer is regular in form, and the property is held by him under the writ, the burden is on the debtor, in a motion to quash for irregular service, to show that it was not served as stated in the return." 72

A writ of attachment, with a proper return, is not rendered incompetent as evidence, in an action involving the validity of the at

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

70 Wilkins v. Tourtellott, 22 P. 11, 42 Kan. 176, judgment affirmed (1893) 13 S. Ct. 1054, 149 U. S. 791, 37 L. Ed. 965.

An omission from a return of service of an attachment as to whether a copy of the order was left with an occupant is an irregularity, not available to a purchaser in a collateral attack. Stillman v. Hamer, 78 P. 836, 70 Kan. 469, 109 Am. St. Rep. 465.

71 Schwartzberg v. Central Ave. State Bank, 115 P. 110, 84 Kan. 581. 72 Lewis v. Rasp, 76 P. 142, 14 Okl. 69,

tachment, by indorsement thereon of a memorandum of a prior ineffectual levy; such indorsement not being necessary.73

DIVISION V.-LEVY, LIEN, CUSTODY, AND DISPOSITION OF PROPERTY § 1794. Execution of order-Inventory and appraisement

"The order of attachment shall be executed by the sheriff, without delay. He shall go to the place where the defendant's property may be found, and declare that, by virtue of said order, he attaches said property at the suit of the plaintiff; and the officer, with two householders, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and householders, and returned with the order.” 74

It is not essential to a valid levy of an attachment that the officer make a manual seizure of personal property, but is sufficient that he assume control over it.75

Attachments can only be levied by bonded officers.76

Where property which has been mortgaged in Kansas is attached

73 Dolan v. Wilkerson, 48 P. 23, 57 Kan. 758.

74 Rev. Laws 1910, § 4819. See, also, Rev. Laws 1910, § 4842. It is not essential to the validity of an attachment levy executed by taking possession of the property that an appraisement of the attached property should be immediately made. Dodson v. Wightman, 49 P. 790, 6 Kan. App. 835. An attachment levy should not be held wholly invalid because of the fact that the appraisement involves certain chattels which the officer and the appraisers have not seen, and cannot see, because the same are locked in a bank safe, of which they do not have the combination. Id.

The failure of the undersheriff to participate with the appraisers in the appraisement of the property is not such an omission in the service of the writ as required the court to quash the writ or set aside the levy as to all the property. Emerson v. Thatcher, 51 P. 50, 6 Kan. App. 325.

75 Parish v. Van Arsdale-Osborne Brokerage Co., 140 P. 835, 92 Kan. 286, Ann. Cas. 1916B, 981.

An officer attempted to levy an attachment on standing corn, which had ceased to grow, but was not sufficiently dry to crib, and caused the same to be appraised. He notified the attachment debtor of the levy, but placed no one in charge of the corn. He did not post any notice under the attempted levy, and no control over the property was exercised by the officer until two months later, when he returned, and posted notice of sale of the corn. Held, that the levy was void as against a mortgagee who filed his mortgage for rec ord four days after the levy. Throop v. Maiden, 34 P. 801, 52 Kan. 258, 76 Sess. Laws 1919, p. 199, §§ 1-4.

in Oklahoma, it is not necessary for plaintiff to pay or tender to the mortgagee the amount of debt.""

A court may protect defendants or other creditors against an excessive levy on more property than is necessary to meet the judgment.78

1795. Successive levies

"Different attachments of the same property may be made by the same officer, and one inventory and appraisement shall be sufficient; and it shall not be necessary to return the same with more than one order."

That an attaching officer, after levying on the defendant's property, relinquished all claim by reason of the levy, did not prevent him from making another levy under the same writ at any time before actual return thereof.89

"Where property is under attachment, it shall be attached under subsequent orders, as follows:

"First. If it be real property, it shall be attached in the same manner prescribed in section 4820.

"Second. If it be personal property, it shall be attached as in the hands of an officer, and subject to any previous attachment.

"Third. If the same person or corporation be made a garnishee, a copy of the order and notice shall be left with him in the manner prescribed in section 4841." 81

§ 1796. Return

An officer serving an attachment writ in a county other than that in which it was issued is not required to have his return recorded with the clerk of the court of the county where the land that was attached is situated.82

An officer's return is prima facie evidence of the value of proper

77 Haltom v. Nichols & Shepard Co., 64 Okl. 184, 166 P. 745.

78 Hodgen v. Roy, 102 Kan. 197, 169 P. 1143. But the fact that an officer seizes and holds an excessive amount of property does not necessarily invalidate the attachment. Hodgen v. Roy, 102 Kan. 197, 169 P. 1143.

79 Rev. Laws 1910, § 4842.

80 Dolan v. Wilkerson, 48 P. 23, 57 Kan. 758.

81 Rev. Laws 1910, § 4843.

82 Mount v. Trammel (Okl.) 175 P. 232.

83

ty attached where there is no other proof, but is not conclusive upon either the officer or the parties to the action or their privies. When the officer's return shows that he, at a certain time, attached certain real estate, and posted a copy of the order in a conspicuous place on the premises, in the absence of anything to the contrary, it will be presumed that the officer did his duty, and that there was no occupant.84

When an order is levied upon a large number of town lots, the failure to place a copy on each separate lot does not render the service void.85

§ 1797. Creation of lien

An attachment creates a lien on the property attached from the time of the service of the order of attachment.86

On amendment allowed, making a member of plaintiff's firm a party, the lien of the attachment is not affected.87

The lien given to a landlord on crops grown on the rented farm exists independently of seizure by attachment or other process." § 1798.

Operation and effect

An attachment reaches only the interest then owned by defendant, whether shown by record or not. 89 An attachment lien does not reach the mere legal title of property in the debtor, when the equitable title is in another.90

The levy of an attachment is not subject to collateral attack because of alleged insufficiency of a bond signed by a bank.1

83 Correll v. Morgan (Okl.) 174 P. 509.

The return as to the value of the property attached may be overcome by parol evidence of a different value. Id.

84 Head v. Daniels, 15 P. 911, 38 Kan. 1.

85 Blake v. Rider, 14 P. 280, 36 Kan. 693.

86 R. T. Davis Mill Co. v. Bangs, 49 P. 628, 6 Kan. App. 38. Such lien is in favor of the creditor. Wafer v. Harvey County Bank, 13 P. 209, 36 Kan, 292. 87 Henderson v. Stetter, 2 P. 849, 31 Kan. 56.

88 Wilmering v. Hinkle, 61 Okl. 82, 160 P. 60.

89 Julian v. Eagle Oil & Gas Co., 111 P. 445, 83 Kan. 440, denying rehear ing 109 P. 996, 83 Kan. 127. An attaching creditor is not entitled to the rights of a purchaser for value buying on the strength of a record title. Id.

Attachment creditor cannot subject any greater interest in property than that owned by debtor. Saylor v. Crooker, 156 P. 737, 97 Kan. 624, Ann. Cas. 1918D, 473.

90 Farmers' State Bank v. Keen (Okl.) 167 P. 207.

91 Marquis v. Ireland, 121 P. 486, 86 Kan. 416, Ann. Cas. 1913C, 144.