(Caption.)

FORM OF INTERPLEA

Comes now A. B., by his attorney, X. Y., leave of court having first been obtained, and interpleads herein, and for cause of action alleges and states:

1. That certain property in the hands of M. N. has been attached by the plaintiff in the above action as the property of the defendant; that this interpleader claims all of the property so attached, being described as follows: (Describing same.)

2. That interpleader's claim to said property arises as follows: (Setting forth fully facts upon which claim to property is based.)

Wherefore, this interpleader prays that said attachment proceedings be dismissed, and that said above described property be released from said attachment, and that this interpleader have judgment therefor, for its costs in this action, and for such other relief as may be proper. X. Y., Attorney for Interpleader.

A party who intervenes and claims the property, can attack the proceedings for only such irregularities as would render the same subject to attack in an independent collateral action.78

§ 1837. Estoppel-Mistake

Where personalty in the possession of a third person is attached as the property of defendant, and such third person procures its return by giving a forthcoming bond, he is afterwards, as between himself and the officer or plaintiff in the action, estopped from asserting paramount title in himself, or that the property did not belong to defendant; 79 but as between the attachment debtor and

78 Ballew v. Young, 103 P. 623, 24 Okl. 182, 23 L. R. A. (N. S.) 1084; Rev. Laws 1910, § 4701.

A plea whereby an interpleader attempted to set up a landlord's lien under Rev. Laws 1910, §§ 3809, 3810, on attached property held insufficient to show that the interpleader was entitled to the property. Lee v. Lowery, 140 P. 1175, 42 Okl. 148.

79 Case v. Steele, 8 P. 242, 34 Kan. 90.

Where personal property in the possession of a third person is attached as the property of another, and such third person procures a return of the property to him by giving to the officer a forthcoming bond for the redelivery of the property or its appraised value to the officer, such third person is after

intervener, the intervener's bond for its own benefit conditioned that property or its appraised value in money be forthcoming to answer judgment does not estop it from demanding an adjudication of ownership.80

Where no evidence is offered to the contrary, the trial court is justified in sustaining a motion made by a stranger to the action to discharge land from an attachment on the ground that he is the real owner where the motion is supported by affidavits of the claimant and defendant that prior to the levy defendant sold the land and executed deeds to claimant which by mistake described the wrong property.81

§ 1838. Proceedings

Where one who is not a party to an action filed a motion to discharge the attachment therein, on the ground that the property attached belonged to movant, the admission of evidence, on the hearing of the motion, which relates solely to the merits of the main action, is harmless, since it could not have influenced the judge in his decision as to the ownership of the property,82

While it was proper to entertain a motion for the immediate discharge of property, seized in attachment proceedings as that of defendant, when it was claimed by another, who interpleaded, if the showing upon the motion disclosed a substantial question as to ownership between defendant and interpleader, the motion should be overruled, as that question should be determined upon a fuller hearing than is possible upon an ex parte hearing upon affidavits.53

wards, as between himself and the officer, or the attachment plaintiff, estopped from asserting paramount title in himself. Greenville Nat. Bank v. Evans-Snider-Buel Co., 60 P. 249, 9 Okl. 353.

80 Smith v. Eby, 104 Kan. 178, 178 P. 405. Where goods attached as the property of defendant are released and returned on a forthcoming bond executed by defendant and a third person, such third person is thereafter estopped from asserting a lien paramount to that of the attachment. Case v. Schultz, 31 Kan. 96, 1 P. 269. Where property is attached, and defendant and the mortgagee thereof give a forthcoming bond to plaintiff for the property, under Civ. Code, § 199, they are not estopped from setting forth a claim to the property paramount to the attachment lien, when the property has not been returned under such bond. Id.

81 O'Malley v. Townsley, 117 P. 1022, 85 Kan. 489.

82 Moffett v. Boydstun, 46 P. 24, 4 Kan. App. 406.

83 Western Grocer Co. v. Alleman, 106 P. 997, 81 Kan. 900, 27 L. R. A. (N. S.) 620, 135 Am. St. Rep. 398, denying rehearing, 106 P. 460, 81 Kan. 543, 27 L. R. A. 620, 135 Am. St. Rep. 398.

Where plaintiff brings attachment and levies on personalty, and other parties intervene adversely to each other, the purchase of the claim of plaintiff by one interpleader does not dispose of the claim of the other interpleader, and the case should proceed as to him.s No bond is by statute required to be given by an interpleader before filing his interplea setting up his claim to property attached.85

Where a third party files a denominated "interplea in attachment" claiming title and right to possession of attached property, he asserts a right in the nature of a petition in replevin and not a motion for discharge of attachment.8°

One claiming to be the owner of property which has been attached, although not a party to the proceeding, may move the court to discharge the attachment; and the fact that after the motion to discharge was filed he began an action of replevin, and obtained the possession of the attached property under the writ issued in that action, will not prevent the hearing and decision of the motion to discharge.87

Where, in an action to recover money, attachment has been levied on land, and after judgment the land is sold, the district court has jurisdiction to entertain a motion by a stranger to the suit holding title to such land to release the land from the levy and to set aside the sale.88

§ 1839. Trial

The issues made by the interpleader in attachment should be tried and determined as like issues between plaintiff and defend

ant. 89

The burden of proof is generally on a purchaser who bought of

84 Miller v. Campbell Commission Co., 74 P. 507, 13 Okl. 75.

85 Wilson's Rev. & Ann. St. §§ 4244, 4387, providing for an interpleader in attachment, do not require the giving of a bond. Miller v. Campbell Commission Co., 74 P. 507, 13 Okl. 75.

86 Millus v. Lowrey-Bros., 63 Okl. 261, 164 P. 663, L. R. A. 1918B, 336; Rev. Laws 1910, §§ 4701, 5310.

87 Wm. W. Kendall Boot & Shoe Co. v. August, 32 P. 635, 51 Kan. 53. 88 Knight v. Rhoades, 61 P. 869, 10 Kan. App. 38.

89 Where there are several claiming liens against attached property, the issues raised between interpleaders should be tried and determined, and the property awarded to the rightful claimant. Miller v. Campbell Commission Co., 74 P. 507, 13 Okl. 75.

a defendant before the levy and who institutes an independent action for property, but, if an attaching creditor admits purchase and charges fraud, he has the burden.90

DIVISION VIII.-WRONGFUL ATTACHMENT

1840. Grounds of liability

91

In an action on an attachment bond, the order discharging the attachment is conclusive that the attachment was wrongfully obtained, if such attachment was discharged on motion prior to final judgment,92 and actual damages may be recovered, though the writ was not sued out maliciously or without probable cause." A seizure of property by an officer under a void attachment is a naked trespass as against a stranger who is in rightful possession thereof.94

§ 1841. Wrongful levy

The plaintiff in an action wherein a writ of attachment is is sued which is wrongfully levied on the goods of another is equally liable with the officer who levies if he directed the levy, ratified, or knowingly received the benefits thereof.95

90 Wells v. Guaranty State Bank, 56 Okl. 688, 156 P. 896.

91 Bash v. Howald, 59 Okl. 116, 157 P. 1154; Schwartzberg v. Central Ave. State Bank, 115 P. 110, 84 Kan. 581.

92 Under Rev. Laws 1910, § 4855, damages may be recovered for a wrongful attachment only when it has been discharged on motion prior to final judgment. Scott v. Waples-Painter Co. (Okl.) 176 P. 754.

93 Overton v. Sigmon Furniture Mfg. Co., 50 Okl. 531, 151 P. 215; Rev. Laws 1910, § 4814.

94 Hagar v. Haas, 71 P. 822, 66 Kan. 333.

95 Stump v. Porter, 31 Okl. 157, 120 P. 639.

Where plaintiff in attachment directs a levy on property not belonging to the defendant, he is liable in trespass to the owner. Frick-Reid Supply Co. v. Hunter, 47 Okl. 151, 148 P. 83.

If a sheriff in serving attachment papers on a person, walked into his store, asked him for his key, which such person surrendered, and then told him to take his cash and get out, and followed him out and locked the door, such act constituted a taking of everything in the store, and rendered the plaintiff in attachment responsible for anything unlawfully taken. Schwartzberg v. Central Ave. State Bank, 115 P. 110, 84 .Kan. 581.

It is no defense to an action for entering a building used as a hotel, ejecting plaintiff, destroying his business and converting his goods, that defendant was acting under an attachment against plaintiff to recover a debt where the attachment was dissolved. Wellington v. Spencer, 132 P. 675, 37 Okl. 461, 46 L. R. A. (N. S.) 469.

Where defendant notifies the plaintiff and the attaching officer that he claims the property as exempt, but makes no defense in the proceedings, and allows judgment to be entered, and the property sold without further protest, he has no right of action for wrongful attachment."6

§ 1842. Actions-Defenses

That other attachments were levied on plaintiff's property at the time of defendant's wrongful levy was not available as a defense."7 Where the sheriff stated to the owner that he intended to attach certain personalty, and the owner gave a forthcoming bond reciting an attachment, there was a sufficiently valid levy to render unavailable, in a subsequent action on the attachment bond, the defense that there was no valid levy.98

The purchase by plaintiff of attached property, which because of its perishable nature the court ordered to be sold does not estop plaintiff from further asserting title and right of possession."*

§ 1843. Pleading

In a petition for wrongful attachment, it is not necessary to aver want of probable cause or a determination of the action in which the attachment was issued.1

An allegation that the attachment was abandoned and waived, and that the cause was fully disposed of, sufficiently shows dissolution of the attachment to warrant an action for damages.2

As against general demurrer, a petition seeking recovery for wrongful attachment held to sufficiently describe the attached property by alleging plaintiff's stock of merchandise was attached.3

96 Williamson v. Kansas & T. Coal Co., 50 P. 106, 6 Kan. App. 443.

97 Gregory Grocery Co. v. Beaton, 62 P. 732, 10 Kan. App. 256.

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

99 In a controversy as to the ownership and right of possession of attached property, the court, during the pendency of an action to recover the same from the attaching officer, ordered the sale of the property, because it was of a perishable nature, and plaintiff purchased at such sale. Held not to estop plaintiff from further asserting title and right of possession to the property. Hagar v. Haas, 71 P. 822, 66 Kan. 333.

1 Reliable Mut. Hail Ins. Co. v. Rogers, 61 Okl. 226, 160 P. 914, L. R. A. 1917B, 350.

2 Overton v. Sigmon Furniture Mfg. Co., 50 Okl. 531, 151 P. 215.

3 Overton v. Sigmon Furniture Mfg. Co., 50 Okl. 531, 151 P. 215.