Chapter 29

1969 REPLACEMENT PART

Attachment and Garnishment; Civil Arrest;Claim and Delivery (Replevin)

DEFINITIONS

29.010 Provisional remedies

ATTACHMENT AND GARNISHMENT

29.110 When attachment lies29.120 Issuance of writ; affidavit of plaintiff29.130 Undertaking of plaintiff29.140 Property attachable29.150 Plaintiff deemed purchaser in good faith29.160 Contents of writ; to whom writ directed;

issuance of several writs29.170 Manner of executing writ29.175 Attachment or levy upon interest of heir

or legatee in personalty of decedent'sestate, prior to distribution

29.180 Return of writ; inventory29.190 Filing sheriff's certificate on attachment of

real property; lien29.200 Sale of perishables or livestock; custody of

property29.210 Adverse claims to attached personal property29.220 Redelivery bond29.230 Defense to action upon redelivery bond29.240 Undertaking to discharge attachment29.250 Form of undertaking29.260 Motion to discharge attachment; amendment

of affidavit or undertaking29.270 Liability of garnishee; delivery of attached

property to sheriff by garnishee29.280 Certificate of garnishee; order for examina-

tion of garnishee29.290 Contents of order; designation of parties29.300 Restraining order against garnishee29.310 Allegations and interrogatories to garnishee29.320 Answer of garnishee29.330 Compelling garnishee to answer; judgment

for want of answer29.340 Exception or reply to answer29.350 Trial29.360 Judgment against garnishee29.370 Execution against garnishee29.380 Sale after judgment against defendant; judg-

ment on undertaking for discharge ofattachment

29.390 Judgment for defendant29.400 Release of garnishment

CIVIL ARREST

29.510 Civil arrest in law and equity29.520 When civil arrest lies29.530 Proceeding to obtain arrest29.540 Motion to vacate writ of arrest29.550 Proceedings on motion to vacate29.560 Discharge on bail; undertaking29.570 Delivery of copy of undertaking to plaintiff:

acceptance or rejection of bail29.580 Notice of justification of bail; new under-

taking29.590 Procedure of justification29.600 Determination of sufficiency of bail29.610 Qualifications of bail29.620 Surrender of defendant29.630 Arrest of defendant by bail29.640 Manner of proceeding against bail29.650 Exoneration of bail29.660 Discharge on deposit of money29.670 Payment of deposit by sheriff into court29.680 Substituting bail for deposit29.690 Disposition of money deposited29.700 Liability of sheriff29.710 Proceedings against sheriff29.720 Liability of bail to sheriff29.730 Maintenance of arrested defendant29.740 Discharge of defendant for nonpayment of

maintenance

CLAIM AND DELIVERY (REPLEVIN)

29.810 Nature of the remedy29.820 Affidavit29.830 Requisition to sheriff29.840 Undertaking of plaintiff; proceedings of

sheriff

29.850 Exception to and justification of plaintiff'ssureties; qualifications

29.860 Defendant's undertaking for return of prop-erty; when property to be delivered toplaintiff

29.870 Justification of defendant's sureties; quaii-fications

29.880 Claim of property by third person29.890 Concealed property29.900 Custody and delivery of property29.910 Return of proceedings by sheriff

CROSS REFERENCES

Enforcement of duties relating to judicial admin- Unclaimed property held for owner, 98.302 to 98.436istration, 1.025 29.110

Jurisdiction acquired by court on allowance of a Attachment of insurer prior to and during liquida-provisional remedy, 15.030 tion proceedings prohibited, 734.320

Juvenile court, enforcing support order, 419.515 District court, attachment in, 46.080, 46.480

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CH. 29 CROSS

Insurance, casualty and indemnity, proceeds of, at-tachable, 23.230

Justice's court, attachment in, 52.210Property in custody of the law, no garnishment of,

23.190

Tax on personal property, attachment in action tocollect, 311.455

Vessel, attachment of for damage to person orproperty, 783.330

29.120

Cross- examination of affiant, 45.130Filing of papers, 16.860

29.130

Deposit in lieu of bond, 22.020 to 22.070Undertaking may be executed by surety company,

747.08029.140

Attachment of:

Human remains prohibited, 97.110Investment securities, 78.3170Proceeds of casualty and indemnity insurance,

23.230

Property of insolvent state bank or trust com-pany, possession by superintendent as bar,711.430, 711.610

Wages, 23.175 and 23.18529.150

Priority of attachment of a vessel, 783.36029.170

Indemnity bond to sheriff by plaintiff in execution,23.310

Public officers as garnishees, 23.19029.210

Trial by sheriff's jury, 29.320 to 29.35029.220

Deposit in lieu of bond, 22.020 to 22.070Redelivery of attached vessel, 783.340

29.250

Deposit in lieu of bond, 22.020 to 22.07029.280

Garnishment of insurer prior to and during liquida-tion proceedings prohibited, 734.320

Garnishment upon writ of execution, 23.75029.300

Injunction attaching investment security, 78.3170Receivership at instance of attaching creditor,

31.020, 31.04029.370

Executions in general, 23.410 to 23.430

29.380

Executing writ of execution when property has beenattached, 23.410, 23.420

Judicial sale of registered land, 94.53029.520

District court, writ of arrest in, 46.080Execution against person of debtor, 23.080, 23.090Imprisonment for debt prohibited except in case of

fraud or absconding debtor, Const. Art. I, § 19Judgment debtor, arrest of, 23.740Justice's court, writ of arrest in, 52.210, 52.230,

52.240

Privilege from arrest of:Congress, member of, U.S. Const. Art. I, § 6Elector, Const. Art. II, § 13

Legislator, Const. Art. IV, § 9Military forces of the state, member of, 399.225Seaman or officer of a seagoing ship, 783.560Witness, 44.090

Usurper, arrest in action by person entitled to holda public office, 30.550

29.530

Cross- examination of affiant, 45.130Filing of papers, 16.860Service of process on Sunday, 16.830

29.560

Deposit in lieu of bail or bond, 22.020 to 22.07029.660

Deposit in lieu of bail or bond, 22.020 to 22.07029.700

Liability of arresting officer for arrest in violationof privilege of:Seaman or officer of a seagoing ship, 783.560Witness, 44.090

Liability of sheriff for release of prisoner under civilarrest, 169.330

29.810

District court, claim and delivery in, 46.080Judgment in action for recovery of specific prop-

erty, 18.110Justice's court, claim and delivery in, 52.210

29.820

Cross - examination of affiant, 45.130

29.840

Deposit in lieu of bond, 22.020 to 22.07029.860

Deposit in lieu of bond, 22.020 to 22.07029.880

Deposit in lieu of bond, 22.020 to 22.070

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ATTACHMENT, GARNISHMENT, ARREST, REPLEVIN § 29.170

DEFINITIONS

29.010 Provisional remedies. The proceed-ings provided for in this chapter shall beknown as provisional remedies.

ATTACHMENT AND GARNISHMENT

29.110 When attachment lies. (1) Theplaintiff, at the time of issuing the summonsor any time afterwards, may have the prop-erty of the defendant attached, as security forthe satisfaction of any judgment that may berecovered, unless the defendant gives securityto pay such judgment, as provided in ORS29.120 to 29.400, in the following cases:

a) An action upon a contract, expressedor implied, for the direct payment of money,when the contract is not secured by mortgage,lien or pledge, or when it is so secured butsuch security has been rendered nugatory byact of the defendant, or when the defendantis a nonresident of this state.

b) An action against a defendant notresiding in this state to recover a sum ofmoney as damages for breach of any con-tract, expressed or implied, other than a con-tract of marriage.

c) An action against a defendant notresiding in this state to recover a sum ofmoney as damages for injury to property inthis state.

2) The provisions of ORS 29.110 to 29.400shall apply with equal effect to all caseswhere a defendant pleads a counterclaim aris-ing out of any cause entitling a plaintiff toattach the property of a defendant.

29.120 Issuance of writ; affidavit of plain-tiff. A writ of attachment shall be issued bythe clerk of the court in which the action is

pending whenever the plaintiff, or anyone inhis behalf, files the undertaking specified inORS 29.130, and makes and files an affidavitstating:

1) In every case, facts which bring thecase within one of the classes of cases speci-fied in ORS 29.110.

2) In an action upon a contract, that thesum for which the attachment is asked is a

bona fide, existing debt, due and owing fromthe defendant to the plaintiff, and specifyingthe amount of such indebtedness above all

legal setoffs and counterclaims.3) In an action for damages, the amount

of damages.4) In every case, that the attachment is

not sought nor the action prosecuted to hinder,2w'].

delay or defraud any creditor of the de-fendant.

29.130 Undertaking of plaintiff. The plain-tiff shall file with the clerk his undertaking,with one or more sureties, in a sum not lessthan $100, and equal to the amount for whichthe plaintiff demands judgment, and to theeffect that the plaintiff will pay all costs thatmay be adjudged to the defendant, and alldamages which he may sustain by reason ofthe attachment, if the same be wrongful orwithout sufficient cause, not exceeding thesum specified in the undertaking. With theundertaking the plaintiff shall also file theaffidavits of the sureties, from which affida-vits it must appear that such sureties arequalified, and that taken together they areworth double the amount of the sum speci-fied in the undertaking, over all debts andliabilities, and property exempt from execu-tion. Any person not qualified to become bailupon an arrest, is not qualified to becomesurety in an undertaking for an attachment.

29.140 Property attachable. The rights orshares which the defendant may have in thestock of any association or corporation, to-gether with the interest and profits thereon,and all other property in this state of the de-fendant, not exempt from execution, shallbe liable to be attached.

29.150 Plaintiff deemed purchaser in goodfaith. From the date of the attachment, untilit be discharged or the writ executed, theplaintiff, as against third persons, shall bedeemed a purchaser in good faith and for avaluable consideration of the property at-tached, subject to the conditions prescribedin ORS 29.190 as to real property.

29.160 Contents of writ; to whom writdirected; issuance of several writs. The writshall be directed to the sheriff of any countyin which property of the defendant may be,and shall require him to attach and safelykeep all the property of the defendant withinhis county not exempt from execution, or somuch thereof as may be sufficient to satisfythe plaintiff's demand, the amount of whichshall be stated in conformity with the com-plaint, together with costs and expenses. Sev-eral writs may be issued at the same timeto the sheriffs of different counties.

29.170 Manner of executing writ. Thesheriff to whom the writ is directed and de-

livered shall note upon the writ the date ofsuch delivery, and shall execute the writwithout delay, as follows:

1) To attach real property, he shall make

REMEDIES AND SPECIAL. ACTIONS AND PROCEEDINGS

a certificate containing the title of the cause,the names of the parties to the action, a de-scription of such real property, and a state-ment that the same has been attached at thesuit of the plaintiff, and deliver the certifi-cate to the county clerk of the county inwhich the attached real estate is situated. The

county clerk shall certify upon every certifi-cate so delivered the time when it was re-

ceived, and the certificate shall be effectivefrom the time of its receipt by the countyclerk.

2) Personal property capable of manualdelivery to the sheriff, and not in the pos-session of a third person, shall be attachedby taking it into his custody.

3) Other personal property shall be at-tached by leaving a certified copy of the writ,and a notice specifying the property attached,with the person having possession of thesame, or if it be a debt, then with the individ-ual debtor, and if such debt arises out of awage or salary claim against a corporatedebtor then with the registered agent of thecorporation, the president or other head ofthe corporation, vice president, secretary,cashier, assistant cashier or managing agentor such other person designated by thecorporation to accept the writ and notice,or if it be rights or shares in the stock of anassociation or corporation, or interests orprofits thereon, then with such person orofficer of the association or corporation as asummons is authorized to be served upon;provided that if it be a security, as definedin ORS 78.1020 or a share or any other in-terest for which a certificate is outstanding,the requirements of ORS 78.3170 must besatisfied. However, debts owing to the de-fendant by a bank or trust company or sav-ings and loan association maintaining branchoffices, or credits or other personal propertywhether or not capable of manual delivery,belonging to the defendant and in the posses-sion of or under the control of such a bank or

trust company or savings and loan associa-tion, shall be attached by leaving a certifiedcopy of the writ and the notice with the presi-dent, vice president, treasurer, secretary,cashier or assistant cashier of the bank or

trust company or savings and loan associa-tion at the office or branch thereof at whichthe account evidencing such indebtedness iscarried or at which the bank or trust com-

panv or savings and loan association hascredits or other personal property belongingto the defendant in its possession or underits control, or, if no such officers be found

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at such office or branch, by leaving a certifiedcopy of the writ and the notice with the man-ager or assistant manager of such office orbranch; and no attachment shall be effectiveas to any debt owing by such bank or trustcompany or savings and loan association ifthe account evidencing such indebtedness iscarried at an office or branch thereof not so

served, or as to any credits or other personalproperty in its possession or under its con-trol at any office or branch thereof not soserved, except that such service on the headoffice of any such institution shall be effec-tive service upon all offices or branchesthereof located in the same city as the headoffice.

4) For purposes of this section, a sav-ings and loan association, including such anassociation doing business in this state andorganized under the laws of another state orof the United States, shall be deemed thedebtor of a defendant to whom a certificate,account or obligation, or an interest therein,of the association has been issued, estab-lished or transferred and in such case the

provisions of ORS 78.3170 shall not apply;provided, however, ownership by a defendantof reserve fund capital stock, or comparableequity stock, or of an interest therein, of anysuch association shall not be deemed to cre-

ate such a relationship.Amended by 1961 c.726 § 398; 1965 c.108 §l; 1969c.95 §l; 1969 c.576 §1]

29.175 Attachment or levy upon interestof heir or legatee in personalty of decedent'sestate, prior to distribution. (1) Except asprovided in subsections (2) and (3) of thissection, the interest of any person in per-sonal property belonging to the estate of adecedent, whether as heir or legatee, maybe attached or levied upon by serving thepersonal representative of the decedent witha copy of the writ of attachment or execu-tion and a notice that said interest is at-

tached or levied upon. Such attachment orlevy shall not impair the powers of the per-sonal representative over such personal prop-erty for the purposes of administration. Acopy of the writ and notice shall also befiled in the office of the clerk of the court

in which the estate is being administered.The personal representative shall reportsuch attachment or levy to the court whenany petition for distribution is filed; and,in the decree made upon such petition, dis-tribution shall be ordered to the heir or

legatee, but delivery of such personal prop-erty shall be ordered to the officer making

ATTACHMENT, GARNISHMENT, ARREST, REPLEVIN § 29.250

the attachment or levy, whose receipt shallbe a sufficient release for the personal rep-resentative. The officer making the attach-ment or levy shall treat such personal prop-erty when the same comes into his hands inthe same manner as other personal propertyattached or levied upon by him, and capableof manual delivery. The personal propertyso attached or levied upon shall not be de-livered to the officer making the levy untilthe decree distributing such interest has be-come final.

2) This section shall not apply to oraffect any moneys, rights or properties con-stituting the subject- matter of any trust con-tained in a duly probated will of a decedent,but shall only apply to personal properties,moneys and assets that would, but for theattachment or execution, be paid or deliv-ered directly to the heir, legatee or devisee.

3) If, by virtue of an order of court,or otherwise, a partial distribution has beenmade by the personal representative of de-cedent to the heir, legatee or devisee prior tothe service of such attachment or execution,only the remainder of the personal estategoing to such heir, legatee or devisee shallbe affected by the attachment or execution.

29.150 Return of writ; inventory. Whenthe writ of attachment has been fully exe-cuted or discharged, the sheriff shall returnthe same, with his proceedings indorsed there-on, to the clerk of the court where the actionwas commenced, and the sheriff shall make afull inventory of the property attached, andreturn the same with the writ.

29.190 Filing sheriff's certificate on at-tachment of real property; lien. Upon receiv-ing the sheriff's certificate as provided in ORS29.170, the county clerk shall immediately filesuch certificate in his office, and record it ina book to be kept for that purpose. When thecertificate is so filed for record, the lien infavor of the plaintiff attaches to the real prop-erty described in the certificate. Wheneversuch lien is discharged, the county clerk shallenter upon the margin of the page on whichthe certificate is recorded a minute of thedischarge.

29.200 Sale of perishables or livestock;custody of property. If any property attachedis perishable, or livestock, where the cost ofkeeping is great, the sheriff shall sell the samein the manner in which property is sold onexecution. The proceeds thereof and other

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property attached shall be retained by him toanswer any judgment that may be recoveredin the action, unless sooner subjected to exe-cution upon another judgment.

29.210 Adverse claims to attached per-sonal property. If any personal property at-tached is claimed by a third person as hisproperty, the sheriff may summon a jury totry the validity of such claim, or at the op-tion of the adverse claimant the court out ofwhich the attachment issued shall try theadverse claim in a summary manner, and thesame proceedings shall be had thereon withlike effect as in case of seizure upon execu-tion.

29.220 Redelivery bond. The sheriff shalldeliver any of the attached property to thedefendant, or to any other person claiming it,upon his giving a written undertaking, exe-cuted by two or more sufficient sureties, en-gaging to redeliver it, or pay the value thereofto the sheriff to whom execution upon a judg-ment obtained by the plaintiff in that actionmay be issued.

29.230 Defense to action upon redeliverybond. In an action brought upon such under-taking against the principal or his sureties,it shall be a defense that the property forwhich the undertaking was given did not, atthe execution of the writ of attachment,belong to the defendant against whom thewrit was issued.

29.240 Undertaking to discharge attwh-ment. Whenever the defendant shall have

appeared in the action, he may apply, uponnotice to the plaintiff, to the court where theaction is pending, or to the judge or clerk ofsuch court, for an order to discharge theattachment upon the execution of the under-taking mentioned in ORS 29.250; and if theapplication be allowed, all the proceeds ofsales and property remaining in the handsof the sheriff shall be released from the at-

tachment and delivered to the defendant,upon his serving a certified copy of the orderon the sheriff.

29.250 Form of undertaking. Upon suchapplication, the defendant shall deliver to thecourt or judge to whom the application ismade an undertaking, executed by one ormore sureties, resident householders or free-

holders of this state, to the effect that the

sureties will pay to the plaintiff the amount

29.260 REMEDIES AND SPECIAL ACTIONS AND PROCEEDI

of the judgment that may be recoveredagainst the defendant in the action. If theplaintiff demands it, the sureties shall berequired to justify in the same manner asbail upon an arrest.

29.260 Motion to discharge attachment;amendment of affidavit or undertaking. Thedefendant may, at any time before judgment,apply to the court or judge thereof, where theaction is pending, to discharge the attachmentin the manner and with the effect providedin ORS 29.540 and 29.550 for the discharge ofa defendant from arrest. However, no attach-ment shall be discharged on account of anydefect in the affidavit if, before the deter-mination of a motion to discharge said attach-ment, the plaintiff shall file an amended af-fidavit substantially complying with the re-quirements of ORS 29.120. The amended affi-davit must show that the grounds for issuingthe writ of attachment as prescribed in ORS29.110 existed at the date the writ was issued.

No attachment shall be discharged on accountof any defect in the undertaking therefor if,before the determination of a motion to dis-

charge said attachment, or within such fur-ther time as the court may allow, the plain-tiff shall file an amended undertaking sub-stantially complying with the requirementsof ORS 29.130.

29.270 Liability of garnishee; delivery ofattached property to sheriff by garnishee. Anyperson, association or corporation mentionedin subsection (3) of ORS 29.170, from the timeof the service of a copy of the writ and noticeas therein provided, shall, unless the attachedproperty is delivered or attached debt is paidto the sheriff, be liable to the plaintiff forthe amount thereof until the attachment is

discharged or any judgment recovered by himis satisfied. Such property may be deliveredor debt paid to the sheriff without suit, orat any time before a judgment against thegarnishee, and the sheriff's receipt shall be asufficient discharge.

29.280 Certificate of garnishee; order forexamination of garnishee. Whenever the

sheriff, with a writ of attachment against thedefendant, shall apply to any person or officermentioned in subsection (3) of ORS 29.170,for the purpose of attaching any propertymentioned therein, such person or officer shallfurnish him with a certificate, designatingthe amount and description of any propertyin his possession belonging to the defendant,

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or any debt owing to the defendant, or thenumber of rights or shares of the defendantin the stock of the association or corporation,with any interest or profits or encumbrancethereon. The certificate shall be furnished to

the sheriff within five days from the date ofservice of the writ, when service is madewithin the county in which the action is pend-ing, and within 10 days when service is madein any other county. If such person or officerfails to do so within the time stated, or if thecertificate, when given, is unsatisfactory tothe plaintiff, he may be required by the court,or judge thereof, where the action is pending,to appear and be examined on oath concern-ing the same, and disobedience to such ordermay be punished as a contempt.

29.290 Contents of order; designation ofparties. The order provided for in ORS 29.280shall require such person or officer to appearbefore the court or judge at a time and placetherein stated. In the proceedings thereafterupon the order, such person or the associationor corporation represented by such officershall be known as the garnishee.

29.300 Restraining order against garnishee.The court or judge thereof may, at the timeof the application of the plaintiff for the orderprovided for in ORS 29.280, and at any timethereafter before judgment against the gar-nishee, by order restrain the garnishee fromin any manner disposing of or injuring anyof the property of the defendant, alleged bythe plaintiff to be in the garnishee's posses-sion, control, or owing by him to the defend-ant, and disobedience to such order may bepunished as a contempt.

29.310 Allegations and interrogatories togarnishee. After the allowance of the orderprovided for in ORS 29.280, and before thegarnishee or officer thereof shall be requiredto appear, or within a time to be specified inthe order, the plaintiff shall serve upon thegarnishee or officer thereof written allega-tions, and may serve written interrogatories,touching any of the property as to which thegarnishee or officer thereof is required to givea certificate as provided in ORS 29.280.

29.320 Answer of garnishee. On the daywhen the garnishee or officer thereof is re-quired to appear, he shall return the allega-tions and interrogatories of the plaintiff tothe court or judge, with his written answerthereto, unless for good cause shown a further

ATTACHMENT, GARNISHMENT, ARREST, REPLEVIN § 29.400

time is allowed. The answer shall be on oath,and shall contain a full and direct responseto all the allegations and interrogatories.

29.330 Compelling garnishee to answer;judgment for want of answer. If the gar-nishee or officer thereof fails to answer, thecourt or judge thereof, on motion of the plain-tiff, may compel him to do so, or the plaintiffmay, at any time after the entry of judgmentagainst the defendant, have judgment againstthe garnishee for want of answer. In no caseshall judgment be given against the garnisheefor a greater amount than the judgmentagainst the defendant.

29.340 Exception or reply to answer. Plain-tiff may except to the answer of the garnisheeor officer thereof for insufficiency, withinsuch time as may be prescribed or allowed,and if the answer is adjudged insufficient, thegarnishee or officer may be allowed to amendhis answer, on such terms as may be proper,or judgment may be given for the plaintiff asfor want of answer, or such garnishee orofficer may be compelled to make a sufficientanswer. The plaintiff may reply to the wholeor a part of the answer within such time asmay be prescribed or allowed. If the answeris not excepted or replied to within the timeprescribed or allowed, it shall be taken to betrue and sufficient.

29.350 Trial. Witnesses, including the de-fendant and garnishee or officer thereof, maybe required to appear and testify, and theissues shall be tried, upon proceedings againsta garnishee, as upon the trial of an issue offact between a plaintiff and defendant.

29.360 Judgment against garnishee. If bythe answer it shall appear, or if upon trial itshall be found, that the garnishee, at the timeof the service of the copy of the writ ofattachment and notice, had any property asto which such garnishee or officer thereofis required to give a certificate, as providedin ORS 29.280, beyond the amount admittedin the certificate, or in any amount if thecertificate was refused, judgment may begiven against the garnishee for the valuethereof in money.

29.370 Execution against garnishee. Execu-tions may issue upon judgments against agarnishee as upon ordinary judgments be-tween plaintiff and defendant, and costs anddisbursements shall be allowed and recovered

in like manner; provided, however, whenjudgment is rendered against any garnishee,and the debt from him to the defendant isnot yet due, execution shall not issue until thedebt is due.

29.380 Sale after judgment against de-fendant; judgment on undertaking for dis-charge of attachment. If judgment is recov-ered by the plaintiff against the defendant,and it shall appear that property has beenattached in the action, and has not been soldas perishable property or discharged from theattachment, the court shall order the propertyto be sold to satisfy the plaintiff's demands,and if execution issue thereon, the sheriffshall apply the property attached by him orthe proceeds thereof, upon the execution, andif any such property or proceeds remain aftersatisfying such execution, he shall, upon de-mand, deliver the same to the defendant; orif the property attached has been releasedfrom attachment by reason of the giving ofthe undertaking by the defendant, as providedby ORS 29.250, the court shall upon givingjudgment against the defendant also givejudgment in like manner and with like effectagainst the surety in such undertaking.

29.390 Judgment for defendant. If judg-ment is not recovered by the plaintiff, all theproperty attached, or the proceeds thereof,or the undertaking therefor, shall be returnedto the defendant upon his serving upon thesheriff a certified copy of the order discharg-ing the attachment.

29.400 Release of garnishment. The clerkof any court in whom is vested authority toissue writs of attachment may issue releases ofgarnishments based upon writs of attachmentissued by such clerk, whenever the plaintiffby his attorney of record, or the plaintiff inperson if there is no attorney, shall file withthe clerk a written request therefor. Suchrelease shall be executed in duplicate, underthe seal of the court or the stamp of the clerk,and may cover all or any portion of the fundsor property held under garnishment. Oneduplicate original of the release shall be de-livered to the garnishee and the other dupli-cate original, together with the written re-quest therefor, indorsed on the face thereofby the attorney of record, if there be anattorney, shall be attached to the original writof attachment in the same manner as the

return of the sheriff or constable; and anypending proceedings in such case for the sale

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29.510 REMEDIES AND SPEC ACTIONS AND PROCEEDINGS

upon execution of any property so garnishedshall, as to all property covered by the re-lease, thereupon be terminated and be con-sidered of no effect; all costs to be paid bythe plaintiff. Upon receipt by the garnisheeof the duplicate original release, the gar-nishee, and all funds or property subject tosuch garnishment, shall, to the extent statedin the release, be released from all liabilityarising by reason of the issuance and serviceof the writ of attachment and notice of gar-nishment, or by reason of his return thereon,as though the writ of attachment and noticeof garnishment had not been served. Thegarnishee may rely upon any such release soreceived by him without any obligation onhis part to inquire into the authority therefor.The authority vested by this section in theclerk of the court to issue releases is notexclusive but is in addition to the authorityof the court having jurisdiction of the causeto release, discharge or dissolve attachmentsand garnishments.

of a fraud in contracting the debt or incurringthe obligation for which the action is brought,or in concealing or disposing of the property,for the taking, detention or conversion ofwhich the action is brought.

e) When the defendant has removed ordisposed of his property, or is about to do so,with intent to defraud his creditors.

2) No female shall be arrested in anyaction, except for an injury to person, char-acter or property.

29.530 Proceeding to obtain arrest. Themode of proceeding to obtain the arrest of adefendant is as follows:

1) At any time after the commencementof an action, and before judgment, the plain-tiff shall be entitled to a writ of arrest for thedefendant whenever he shall make and filewith the clerk of the court in which the action

is commenced, or is at the time pending, anaffidavit that the plaintiff has a sufficientcause of action therein, and that the case isone of those mentioned in ORS 29.520, andshall also make and file with the clerk an

CIVIL ARREST undertaking, with one or more sureties, in a

29.510 Civil arrest in law and equity. The sum not less than $100, and equal to the

provisions of ORS 29.520 to 29.740 apply to amount for which plaintiff prays judgment.

suits the same as they apply to actions. Such undertaking shall be conditioned thatthe plaintiff will pay all costs that may be

29.520 When civil arrest lies. (1) No maleperson shall be arrested in an action, except:

a) In an action for the recovery of moneyor damages on a cause of action arising outof contract, when the defendant is not a resi-dent of the state, or is about to remove there-from, or when the action is for an injury toperson or character, or for injuring or wrong-fully taking, detaining or converting property.

b) In an action for a fine or penalty, oron a promise to marry, or for money received,or property embezzled, or fraudulently mis-applied, or converted to his own use, by apublic officer, or by an attorney, or by anofficer or agent of a corporation in the courseof his employment as such, or by any factor,agent, broker or other person in a fiduciarycapacity, or for any misconduct or neglect inoffice, or in a professional employment.

c) In an action to recover the possessionof personal property unjustly detained, whenthe property or any part thereof has beenconcealed, removed or disposed of, so that itcannot be found or taken by the sheriff, andwith intent that it should not be so found ortaken, or with the intent to deprive the plain-tiff of the benefit thereof.

d) When the defendant has been guilty

adjudged to the defendant, and all damageswhich he may sustain by reason of the arrest,if the same be wrongful or without sufficientcause, not exceeding the amount specified inthe undertaking.

2) The affidavit may be either positiveor upon information and belief; but, if thelatter, it shall state the nature and sourcesof the information upon which the belief isfounded. The plaintiff shall also file withhis undertaking the affidavits of the suretiestherein, from which it must appear that thesureties are residents of the state, and thatthey are, taken together, worth double theamount specified in the undertaking over alldebts and liabilities and property exemptfrom execution. Any person not qualified tobecome bail upon arrest is not qualified tobecome surety in an undertaking for an arrest.

3) The writ of arrest shall be issued bythe clerk, and shall require the sheriff of anycounty where the defendant may be found,forthwith to arrest him and hold him to bail

in the amount specified in the undertaking,and in default thereof, to keep him in custodyuntil discharged by law, and to return thewrit to the clerk from whom it issued, withhis doings indorsed thereon, when required

216

ATTACHMENT, GARNISHMENT, ARREST, REPLEVIN § 29.600

by the plaintiff at any time before the de-fendant may be arrested, or afterwards when-ever the defendant shall have been dischargedfrom the arrest.

4) The plaintiff shall deliver or cause tobe delivered to the sheriff, with the writ, acopy of the affidavit upon which the writ wasissued, subscribed by himself or attorney.The sheriff, upon delivery of the writ, shallindorse thereon the date of receipt, and uponthe arrest of the defendant, shall deliver tohim a copy of the writ, and such copy ofthe affidavit. The sheriff shall execute the

writ by arresting the defendant and keepinghim in custody, until discharged by law.

29.540 Motion to vacate writ of arrest. A

defendant arrested may, at any time beforejudgment, apply on motion to the court orthe judge thereof, in which the action is pend-ing, upon notice to the plaintiff, to vacatethe writ of arrest, except where the cause ofarrest and the cause of action are the same.

29.550 Proceedings on motion to vacate.If a motion is made upon affidavits or otherproofs by the defendant, but not otherwise,the plaintiff may oppose the same by affida-vits or other proofs, in addition to those uponwhich the writ was issued. If, upon the hear-ing of the motion, it satisfactorily appears thatthere was not sufficient cause to allow thewrit, the writ shall be vacated.

29.560 Discharge on bail; undertaking.The defendant, at any time before execution.shall be discharged from the arrest upon giv-ing bail. He may give bail by causing awritten undertaking to be executed in favorof the plaintiff by two or more sufficientsureties, stating their places of residence, tothe effect that the defendant shall at all times

render himself amenable to the process of thecourt during the pendency of the action, andto such as may be issued to enforce the judg-ment therein; or if he has been arrested forthe cause mentioned in paragraph (c) of sub-section (1) of ORS 29.520, an undertaking tothe same effect as that provided by ORS29.860.

29.570 Delivery of copy of undertaking toplaintiff; acceptance or rejection of bail.Within five days from the execution of theundertaking of the bail, the sheriff shalldeliver to the plaintiff or his attorney if

such person within the county as the plain-tiff may direct, a certified copy of the under-taking, with the date of the arrest indorsedthereon. In any other case the sheriff maymail such copy, within the same time, to theplaintiff or his attorney, within the state,or to either of them, as the plaintiff maydirect. The plaintiff, within ten days fromthe delivery of the copy, or 15 days from itsmailing, if sent by mail, may serve upon thesheriff a notice that he does not accept thebail; otherwise he shall be deemed to have ac-cepted it, and the sheriff shall be exoneratedfrom liability. If no notice is served withinten days, the original undertaking shall befiled with the clerk of the court where theaction is Dending.

29.580 Notice of justification of bail; newundertaking. On the receipt of the notice bythe plaintiff that he does not accept the bail,the sheriff or defendant may, within ten daysthereafter, give to the plaintiff or his attorneynotice of the justification of the same, or otherbail, specifying the places of residence andoccupation of the latter, before a judge ofthe circuit court, or county court, or clerk ofthe court where the action is pending, at aspecified time and place; the time to be notless than five nor more than ten days there-after. In case neither the plaintiff nor hisattorney reside within the county where thearrest is made, the notice may be served uponthe person and in the manner provided inORS 29.570 for serving the copy of the under-taking. In case other bail is given there shallbe a new undertaking, in the form and to theeffect prescribed in ORS 29.560.

29.590 Procedure of justification. For thepurpose of justification, each of the bail shallattend before the judge or clerk, at the timeand place mentioned in the notice, and maybe examined on oath, touching his sufficiency,by the plaintiff, in such manner as the judgeor clerk may think proper. The examinationshall be reduced to writing and subscribedby the bail, if required by the plaintiff.

29.600 Determination of sufficiency ofbail. If the judge or clerk finds the bail suf-ficient, he shall annex the examination to the

undertaking, indorse his allowance thereon,and cause them to be filed with the clerk of

the court in which the action is pending; and

either of them reside within the county the sheriff shall thereupon be exoneratedwhere the arrest was made, or otherwise to from liability.

217

29.610 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS

29.610 Qualifications of bail. The qualifi-cations of bail are as follows:

1) Each of them shall be a resident andhouseholder or freeholder within the state;but no attorney, sheriff, clerk of any court,or other officer of any court may become bail.

2) Each of them shall be worth theamount specified in the writ of arrest, overand above all debts and liabilities, and ex-clusive of property exempt from execution;but the judge or clerk on justification mayallow more than two sureties to justify sev-erally in amounts less than that expressed inthe writ, if the whole justification is equiva-lent to that of two sufficient bail.

29.620 Surrender of defendant. At anytime before a failure to comply with theundertaking, the bail may surrender the de-fendant in their exoneration, or the defendantmay surrender himself to the sheriff of thecounty where he was arrested, in the follow-ing manner:

1) A certified copy of the undertakingof the bail shall be delivered to the sheriff,who shall detain the defendant in his cus-

tody thereon as upon a writ of arrest, andshall by a certificate in writing acknowledgethe surrender.

2) Upon the production of a copy of theundertaking and sheriff's certificate, thejudge of the court may upon a notice to theplaintiff of eight days, with a copy of thecertificate, order that the bail be exoner-ated, and on filing the order and the papersused on said application with the clerk of thecourt where the action is pending, they shallbe exonerated accordingly; but this sectionshall not apply to an arrest for the causementioned in paragraph ( c) of subsection1) of ORS 29.520, so as to discharge the bailfrom an undertaking given to the effect pro-vided by ORS 29.860.

29.630 Arrest of defendant by bail. Forthe purpose of surrendering the defendant,the bail at any time and place, before theyare finally charged, may themselves arresthim, or by a written authority, indorsed on acertified copy of the undertaking, may em-power the sheriff or any other person of suit-able age and discretion to do so.

29.640 Manner of proceeding against bailFor failure to comply with the undertaking,the bail may be proceeded against by actinonly.

29.650 Exoneration of bail. The bail maybe exonerated either by the death of the de-fendant, or his imprisonment in the peni-tentiary, or by his legal discharge from theobligation to render himself amenable to theprocess, or by his surrender to the sheriffof the county where he was arrested, in exe-cution thereof, within twenty days after thecommencement of the action against the bail,or within such further time as may be grantedby the court.

29.660 Discharge on deposit of money. Thedefendant may, at any time before execution,deposit with the sheriff the amount men-tioned in the writ. Thereupon, the sheriffshall give the defendant a certificate of thedeposit made, and the defendant shall bedischarged from the arrest.

29.670 Payment of deposit by sheriff intocourt. The sheriff shall within four days afterthe deposit pay the same into court, and takefrom the clerk receiving the payment twocertificates of payment, one of which he shalldeliver to the plaintiff or his attorney, and theother to the defendant. For any default inmaking such payment the same proceedingsmay be had on the official bond of the sheriffto collect the sum deposited, as in other casesof delinquency.

29.680 Substituting bail for deposit. Ifmoney is deposited, as provided in ORS 29.660and 29.670, bail may be given and justifiedupon notice, as prescribed in ORS 29.560, atany time before judgment, and on the filingof the undertaking and justification with theclerk, the money deposited shall be refundedby such clerk to the defendant.

29.690 Disposition of money deposited. Atthe time of an order or judgment for thepayment of money to the plaintiff, the clerkshall, under the direction of the court, ap-ply any money remaining on deposit insatisfaction thereof, and after satisfying thejudgment, shall refund any surplus to thedefendant. If the judgment is in favor of thedefendant, the clerk shall refund to him allmoney remaining on deposit-

29.700 Liability of sheriff. If, after beingarrested, the defendant escapes, or is rescued,or bail is not given, or justified, or a depositis not made instead thereof, the sheriff him-self shall be liable as bail; but he may dis-

n charge himself from such liability by thegiving and justification of bail, as provided in

218

ATTACHMENT, GARNISHMENT, ARREST, REPLEVIN § 29.850

ORS 29.580 to 29.610, at any time before proc-ess against the person of the defendant toenforce an order or judgment in the action.

29.710 Proceedings against sheriff. If ajudgment is recovered against the sheriffupon his liability as bail, and an executionthereon is returned unsatisfied, in whole or inpart, the same proceedings may be had onhis official bond as in other cases of delin-quency.

29.720 Liability of bail to sheriff. The bailtaken upon the arrest shall, unless theyjustify, or other bail is given or justified, beliable to the sheriff by action for any damageshe may sustain by reason of such omission.

according to his best knowledge, informationand belief;

4) That the property has not been takenfor a tax, assessment or fine, pursuant to astatute, or seized under an execution or at-tachment against the property of the plain-tiff, or if so seized, that it is by statute ex-empt from such seizure; and,

5) The actual value of the property.

29.830 Requisition to sheriff. The plain-tiff may, by an indorsement in writing uponthe affidavit, require the sheriff of the countywhere the property claimed may be to takethe property from the defendant and deliverit to the plaintiff.

29.730 Maintenance of arrested defendant.There shall be allowed to the sheriff forthe food and maintenance of any defendantarrested under the provisions of ORS 29.510to 29.740, the fees provided by law. The plain-tiff shall be liable in the first instance forsuch fees, and if required by the sheriff, shallpay them weekly, in advance. The fees sopaid shall be added to the disbursementstaxed or accruing in the case, and be collectedas other disbursements.

29.740 Discharge of defendant for non-payment of maintenance. If the plaintiff neg-lects to pay such fees for three days after ademand of payment, the sheriff may dis-charge the defendant out of custody.

CLAIM AND DELIVERY

REPLEVIN)

29.810 Nature of the remedy. In an actionto recover the possession of personal property.the plaintiff, at any time after the action iscommenced and before judgment, may claimthe immediate delivery of such property, asprovided in ORS 29.820 to 29.910.

29.820 Affidavit. When a delivery isclaimed, an affidavit shall be made by theplaintiff, or by someone in his behalf, show-ing:

1) That the plaintiff is the owner of theproperty claimed (particularly describing it) ,or is lawfully entitled to the possessionthereof by virtue of a special property therein.the facts in respect to which shall be set forth;

2) That the property is wrongfully de-tained by the defendant;

3) The alleged cause of the detention,219

29.840 Undertaking of plaintiff; proceed-ings of sheriff. Upon the receipt of the affi-davit and indorsement thereon, with a writtenundertaking executed by two or more suffi-cient sureties, approved by the sheriff, to theeffect that they are bound in double the valueof the property as stated in the affidavit, forthe prosecution of the action, for the returnof the property to the defendant, if returnthereof is adjudged, and for the payment tohim of such sum as may, for any cause, berecovered against the plaintiff, the sheriffshall forthwith take the property describedin the affidavit, if it be in the possession ofthe defendant or his agent, and retain it inhis custody. He shall also, without delay,serve on the defendant a copy of the affida-vit, indorsement thereon, and undertaking, bydelivering them to him personally, if he canbe found, or to his agent from whose posses-sion the property is taken; or, if neither canbe found, by leaving them at the usual placeof abode of either, with some person of suit-able age and discretion; or, if neither haveany known place of abode, by putting them inthe post office, directed to the defendant atthe post office nearest to him.

29.850 Exception to and justification ofplaintiff's sureties; qualifications. ( 1) Thedefendant may, within three days after theservice of a copy of the affidavit and under-taking, give notice to the sheriff that heexcepts to the sufficiency of the sureties. Ifhe fails to do so, he waives all objection tothem. When the defendant excepts, the sure-ties shall justify on notice in like mannerprovided in OAS 29.590 for as bail on arrest.The sheriff is responsible for the sufficiencyof the sureties until the objection to them iswaived, or until they justify, or new sureties

29.860 REMEDIES AND SPECIAL ACTIONS AND PROCE

are substituted and justify. If the defendantexcepts to the sureties, he cannot reclaim theproperty as provided in ORS 29.860.

2) The qualifications of the sureties shallbe as provided in ORS 29.610 for bail on civilarrest.

29.860 Defendant's undertaking for returnof property; when property to be delivered toplaintiff. At any time before the delivery ofthe property to the plaintiff, the defendantmay, if he does not except to the sureties ofthe plaintiff, require the return thereof upongiving to the sheriff a written undertaking,executed by two or more sufficient sureties,to be approved by the sheriff, to the effectthat they are bound in double the value of theproperty, as stated in the affidavit of theplaintiff, for the delivery thereof to the plain-tiff, if such delivery be adjudged, and for thepayment to him of such sum as may, for anycause, be recovered against the defendant. Ifa return of the property is not so requiredwithin three days after the taking and serviceof a copy of the affidavit and undertaking onthe defendant, it shall be delivered to theplaintiff, except as provided in ORS 29.900.

29.870 Justification of defendant'ssureties;qualifications. (1) The defendant's sureties,upon notice to the plaintiff or his attorney ofnot less than two nor more than six days, shalljustify before a judge of the circuit or countycourt, or the clerk of the court in which theaction is pending, in the same manner as pro-vided in ORS 29.590 for bail on arrest; and

upon such justification, the sheriff shall de-liver the property to the defendant. The

sheriff shall be responsible for the defendant'ssureties until justification is completed orexpressly waived, and may retain the prop-erty until that time; but if justification is notcompleted at the time and place appointed,he shall deliver the property to the plaintiff.

2) The qualifications of the sureties shallbe as provided in ORS 29.610 for bail on civilarrest.

29.880 Claim of property by third person.If the property taken is claimed by any otherperson than the defendant or his agent, andsuch person makes affidavit of his title or hisright to possession, stating the grounds ofsuch title or right, and serves the same uponthe sheriff before the delivery of the propertyto the plaintiff, the sheriff shall not be boundto keep the property, or deliver it to the plain-tiff, unless the plaintiff, on demand of him orhis agent, shall indemnify the sheriff againstsuch claim by an undertaking, executed bytwo sufficient sureties, accompanied by theiraffidavits that they are each worth doublethe value of the property as specified in theaffidavit of the plaintiff, over and above theirdebts and liabilities, exclusive of propertyexempt from execution, and are freeholdersor householders of the county. No claim tosuch property by any other person than thedefendant or his agent shall be valid againstthe sheriff unless made as aforesaid; and,notwithstanding any such claim, he may re-tain the property a reasonable time to demandsuch indemnity.

29.890 Concealed property. If the prop-erty or any part thereof is concealed in abuilding or inclosure, the sheriff shall publiclydemand its delivery. If it is not delivered, heshall cause the building or inclosure to bebroken open, and take the property into hispossession; and, if necessary, he may call tohis aid the power of his county.

29.900 Custody and delivery of property.When the sheriff has taken property, as pro-vided in ORS 29.810 to 29.890, he shall keepit in a secure place, and deliver it to the partyentitled thereto upon receiving his lawful feesfor taking, and his necessary expenses forkeeping the same.

29.910 Return of proceedings by sheriff.The sheriff shall file the affidavit, with hisproceedings thereon, including an inventoryof the property taken, with the clerk of thecourt in which the action is pending, within20 days after taking the property; or, if theclerk resides in another county, shall mailor forward the same within that time.

CERTIFICATE OF LEGISLATIVE COUNSEL

Pursuant to ORS 173.170, I, Robert W. Lundy, Legislative Counsel, do hereby certify that I havecompared each section printed in this chapter with the original section in the enrolled bill, andthat the sections in this chapter are correct copies of the enrolled sections, with the exceptionof the changes in form permitted by ORS 173.160 and other changes specifically authorized by law.Done at Salem, Oregon, Robert W. Lundy

on December 1, 1969. Legislative Counsel220