State of Oklahoma,

County, ss.:

day of

Be it remembered, that on this

a

before me,personally appeared

of

19-,

in and for said county and State, as the administrator of the estate

—, deceased, to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he executed the same in the capacity therein stated, as his free and voluntary act and deed for the uses and purposes therein set forth.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year last above written.

[SEAL.]

My commission expires

Notary Public.

CHAPTER VIII.

THE LAW AND PROCEDURE BY WHICH REAL ESTATE IS SOLD UNDER ATTACHMENT PROCEEDINGS.

SECTION.
323. The form for the affidavit for
service by publication upon
a nonresident defendant in
attachment.

324. The form for notice by publi-
cation.

325. The form for the order of sale in attachment proceedings.

326. The form for proof of publication of the notice.

327. The form for the judgment and order of sale of the attached

property.

328. The form for the order of sale issued by the clerk to the

SECTION

329. The form for the legal notice
of sale of real estate under
attachment proceedings.
330. The form for proof of publica-
tion of notice of sale.
331. The form for appointment of
appraisers of real estate, the
oath of the appraisers, and
appraisement—In attachment.
332. The order confirming the sale,

ordering distribution, and the
execution and delivery of a
deed to the purchaser at
sheriff's sale of property at-
tached.

sheriff in attachment pro- 333. Form for sheriff's deed for real

ceedings.

estate sold under attachment

proceedings.

Sec. 287. Introductory statement-The statute must be

strictly followed.

The purpose of this book necessarily makes the subject treated in this chapter quite brief. Only so much of the law of attachment in the State of Oklahoma will be discussed as is necessary to disclose the essentials requisite in attachment proceedings in order to give good title to real estate bought at sheriffs' sales in such actions. The law as to the seizure of real and personal property by writ of attachment is so interwoven that much of the law as to the latter must be given with the former, but about the only difference between them is the manner of disposition of each by the officers and agents of the court. The subject of the seizure of real estate by writ of attachment is governed and controlled by legislative enactment, and being so controlled, we must look to the statutes on this subject for the source of the authority of the court and its officers for their actions in such proceeding.1

1 Buckeye Pipe Line Co. v. Fee, 62 O. S. 556. Proceedings in at tachment are not, it is true, according to the course of the common law. They are, however, under our

construction, proceedings in rem intended to subject the property of a debtor to the payment of his debts. Lessee v. Loring, 7 O. 425.

Being purely statutory, the practitioner in such proceedings, must pursue the directions of the statutes, as the court will not acquire jurisdiction to seize hold of real estate and sell it under the writ. This remedy by attachment being contrary to the course of the common law cannot be extended beyond the strict letter of the statute authorizing it; for it has always been the policy of our courts to require the court pursuing an an extraordinary remedy authorized by statute, to make out a clear case of judicial interference.2

Sec. 288. An auxiliary remedy allowed only after suit is brought.

The writ of attachment is an auxiliary remedy, to be issued or allowed only after an action has been begun, and it has been said of it that it is in the nature of an execution in advance. The function of the writ is to seize hold of real estate in advance of the hearing of the case, to hold it in court until a final judgment is had in the court. It follows then, as a matter of course, that, if the judgment of the court is against the claim of the plaintiff, the whole proceedings fail, but that if the judgment in the case is given to the plaintiff, on the issues of the case, then so much of the real estate, so seized, under the writ, is sold as will be necessary to satisfy the amount of the judgment.3

2 Jaffrey v. Wolf, 1 Okla. 312, 33 Pac. 945; Egan v. Lumsden, 2 Disn. (Ohio), 168; Taylor v. McDonald, 4 0. 155; Caldwell v. Bank, 2 0. 229; Hoyman v. Beverstock, 8 C. C. (Ohio), 477. An attachment is an extreme remedy and the attaching creditor must direct his case within the letter of the law to get "the strong arm of the court to take the property of the debtor from his possession before judgment." Hoy.

man v. Beverstock, 8 C. C. 474. If there is no debt there can be no attachment. Carnahan v. Gustine, 2 Okla. 399, 37 Pac. 594. The fact that the action is equitable will not defeat the attachment. Hendrickson v. Brown, 11 Okla. 41, 65 Pac. 935. 3 Rempe v. Ravens, 68 O. S. 113; Siebert v. Sweitzer, 35 0. S. 661; Carty v. Fenstermacher, 14 O. S. 457; Ward v. Howard, 12 O. S. 158.

Sec. 289. When the action is deemed commenced.

In an action where the order of attachment was issued on the filing of the affidavit and the giving of a bond, the order was issued and served on the defendant, and thereafter, on the same day, the petition was filed, and on such state of facts the court held that the attachment had been issued without authority of law, and, as against other attaching lienholders, gave no priority.

The statute does not authorize an attachment except in an action, and the clerk of the court has no authority to issue an order of attachment until the action is brought and the relation of plaintiff and defendant is established in the case.*

An action is deemed commenced so far as the right to consider a writ of attachment is concerned, as soon as a petition is filed in the proper court, and the summons is issued thereon, with the intent to have the same served.

Sec. 290. The affidavit for the attachment-What it must contain.

An order of attachment will be made by the clerk of the court in which the action is brought, in any case mentioned in the statute (Snyder, 5702; Wilson, 4365), when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing:

1. The nature of the plaintiff's claim.

2. That it is just.

3. The amount which affiant believes plaintiff should recover; and

4. The existence of some one of the grounds for attachment enumerated in the statute (Snyder, 5701; Wilson, 4365).

4 Siebert v. Schweitzer, 35 O. S. 661.

5 Coffman v. Brandhofer, 50 N. W. (Neb.) 6.

• Snyder, 5,702; Wilson, 4,366; Kansas, 4,625 (1901), identical;

Nebraska, 1,172 (1907), identical; Ohio Gen. Code, Sec. 11,820 (1910). The allegations of the petition and the affidavit for attachment must be the same in substance. Carnahan v. Gustine, 2 Okla. 399, 37 Pac.