The giving of a forthcoming bond does not have the effect of dissolving an attachment.16

A forthcoming bond in attachment is good as a common-law bond, though it does not conform to the statute, if it does not contravene public policy or violate the law.17

(Caption.)

REDELIVERY BOND IN ATTACHMENT

Know all men by these presents, that we, as principal, and as sureties are held and firmly bound unto

and

plaintiff in the above entitled cause, in the penal sum of dollars, for the payment of which sum, well and truly to be made, we do bind ourselves and each of us, our heirs, executors, and administrators, jointly and severally by these presents.

The condition of the above obligation is such, that whereas, the above named plaintiff did on the day of, 19-, begin

the above entitled action against the above named defendant, to recover the sum of dollars, and caused an order of attachment to be issued and levied upon property in the possesprincipal above named, of the appraised value of dollars; and whereas, said desires to have said

sion of

property delivered to him:

Now, if the said property or its appraised value in money shall be forthcoming to answer the judgment of the court in this action, then this obligation to be void; otherwise, to remain in full force and effect.

Witness our hands this

day of

19-.

(Qualification of sureties.)

§ 1811. Disposition of property

"The court shall make proper orders for the preservation of the property during the pendency of the suit; it may direct a sale of property, when, because of its perishable nature; or of the costs

16 Larimore v. Parker, 101 Kan. 729, 168 P. 859.

17 Woodward v. Bingham, 106 P. 843, 25 Okl. 400; Blanchard v. Anderson, 113 P. 717, 27 Okl. 732.

of keeping it, a sale will be for the benefit of the parties. In vacation, such sale may be ordered by the judge of the court. The sale shall be public, after such advertisement as is prescribed for the sale of like property on execution, and shall be made in such manner and upon such terms of credit, with security, as the court or judge, having regard to the probable duration of the action, may direct. The proceeds, if collected by the sheriff, with all the moneys received by him from garnishees, shall be held and paid over by him, under the same requirement and responsibility of himself and sureties, as are provided in respect to money deposited in lieu of bail." 18

§ 1812. Judgment for plaintiff

"If judgment be rendered for the plaintiff, it shall be satisfied as follows: So much of the property remaining in the hands of the officer, after applying the moneys arising from the sale of perishable property, and so much of the personal property and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue, in all respects as in other cases. Any surplus of the attached property or its proceeds shall be returned to the defendant." 19

§ 1813. Delivery to sheriff

"The court may compel the delivery to the sheriff, for sale, of any of the attached property for which an undertaking may have been given, and may proceed summarily on such undertaking, to enforce the delivery of the property, or the payment of such sum as may be due upon the undertaking, by rules and attachments, as in cases of contempt.'

" 20

18 Rev. Laws 1910, § 4850. 10 Rev. Laws 1910, § 4856. 20 Rev. Laws 1910, § 4857,

§ 1814. Possession by sheriff

"The court may order the sheriff to repossess himself, for the purpose of selling it, of any of the attached property, which may have passed out of his hands, without having been sold or converted into money; and the sheriff shall, under such order, have the same power to take the property as he would have under an order of attachment." 21

§ 1815. Confirming or setting aside sale-Form of order

Where attached realty is levied upon and duly appraised as required by law, and the attachment lien is foreclosed and the realty sold under an order of sale without further appraisal, the sale is void and should be set aside.22

Where real estate is attached, and after judgment for plaintiff sold to him and return thereof made by the sheriff, such sale may upon application of plaintiff be confirmed, and a sheriff's deed issued at any time thereafter, if no objection by defendant in the action is or has been made to the sale or confirmation.23

(Caption.)

ORDER CONFIRMING SALE OF ATTACHED PROPERTY

Now on this

day of

19-, comes on for hearing the

motion of the plaintiff, A. B., for an order of court confirming the sale of the property heretofore levied on under an order of attachment herein, said sale being made by the sheriff of state of Oklahoma, on the

county, day of, 19, under an order of sale issued out of the office of the court clerk of said court under the date of

19-; said sale being of the following described property, to wit: (Describing same.)

And the court, having examined the proceedings of said sheriff under said order of sale, finds that the same have been performed in all respects in conformity to law; and, no exceptions being filed nor objections made, it is ordered and adjudged by the court that the said sale and proceedings be and the same are hereby approved and confirmed, and it is ordered that the said sheriff of

21 Rev. Laws 1910, § 4858.

coun

22 Given v. Owen (Okl.) 175 P. 345; Rev. Laws 1910, §§ 4819, 4856, 5161. 23 Knox v. Doty, 81 Kan. 138, 105 P. 437, 135 Am. St. Rep. 351; Menke v. Spaulding, 81 Kan. 904, 106 P. 1009.

ty, Oklahoma, make and execute to said purchaser at said sale a good and sufficient deed for the property sold.

§ 1816. Surplus property

-, Judge.

A creditor holding a chattel mortgage, as security for his debt, upon property belonging to the debtor, can maintain an attachment against the same and other property of the debtor; but if the mortgage is ample security to pay the claim in full, together with the interest and costs, the court may, upon proper application therefor, discharge so much of the property not included in the mortgage as is not necessary to satisfy the claim.24

§ 1817. Interest conveyed

A sheriff's deed, under an order of sale of attached real estate, conveys all the title possessed by the judgment debtor when the order of sale was issued or at any time thereafter.25

DIVISION VI.-DISCHARGE OF ATTACHMENT

§ 1818. Form of remedy

"The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or part of the property attached.” 26

The existence of the grounds stated in an affidavit for an attachment may be denied, and put in issue in a motion to discharge attachment.27

A motion, denying that the affidavit for attachment is true, may be made at any time before judgment.28

(Caption.)

MOTION TO DISCHARGE

ATTACHMENT

Now comes the above named defendants, by X. Y., their attorney, and move the court to dissolve the attachment issued in said above

24 State Bank of Clyde v. Mottin, 28 P. 200, 47 Kan. 455.

25 Knox v. Doty, 81 Kan. 138, 105 P. 437, 135 Am. St. Rep. 351; Menke v. Spaulding, 81 Kan. 904, 106 P. 1009.

26 Rev. Laws 1910, § 4862; Smith-Frazer Boot & Shoe Co. v. Derse, 21 P. 167, 41 Kan. 150; McComb v. Watt, 39 Okl. 412, 135 P. 361.

A motion to discharge an attachment is proper practice. McComb v. Watt, 39 Okl. 412, 135 P. 361.

27 Millus v. Lowrey Bros., 63 Okl. 261, 164 P. 663.

28 Doggett v. Bell, 4 P. 292, 32 Kan. 298.

entitled cause, and to discharge the property attached therein under said writ of attachment, and for grounds of said motion say:

1. That no bond for costs, or security therefor, or poverty affidavit, was filed in said court, at the commencement of said action, as provided by law.

2. That the plaintiff in said action is and was at the commencement thereof, nonresident of the state of Oklahoma.

3. That said claim sued on in said action was not at the commencement of said action, and is not now, and never has been, just, due, and unpaid, but is founded wholly upon a tort.

4. That said defendants were not, at the filing of said affidavit for attachment, nor at any time since, and are not now, nonresidents of the state of Oklahoma, but have, at all times since, and for a number of days prior to the filing of the affidavit for attachment, and are now, residents of the county of O., in the state of Oklahoma.

5. That the defendants were not, at the issuance of said writ of attachment and the filing of the affidavit therefor, and at no time have they, or either of them been, or are they now, about to convert their property, or any part thereof, into money for the purpose of placing it beyond the reach of their creditors.

6. That at no time prior to the issuance of said writ of attachment, nor since, nor have they now, any property which they conceal.

7. That at no time, prior to the issuance of said writ of attachment, at said time, nor since, nor have they now, any rights in action which they conceal.

8. That at the time of filing said affidavit for attachment, and no time prior thereto, nor at any time since, have they been, nor are they now, about to assign, remove, and dispose of any part of their property with intent to hinder, delay, and defraud their creditors or any of them.

9. That at no time prior to the issuance of said writ of attachment, nor at any time since, have they assigned, removed, and disposed of any part of their property with intent to hinder, delay, and defraud their creditors or any of them.

10. That all of the grounds set forth in the affidavit for attachment are, and were at the time of the making and filing thereof, false and wholly untrue.