§ 16-110-106 — Order of attachment

(a) (1) An order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in § 16-110-101(1) , where there is filed in his or her office an affidavit of the plaintiff or of someone in his or her behalf, showing: (A) The nature of the plaintiff's claim; (B) That it is just; (C) The amount which the affiant believes the plaintiff ought to recover; and (D) The existence in the action of one (1) of the grounds for an attachment enumerated in § 16-110-101(1) . In the case mentioned in § 16-110-101(2) , where it is shown by affidavit or by the return of the county sheriff or other officer upon the order for the delivery of the property claimed, the facts mentioned in § 16-110-101(2) must exist. (2) When the return by the proper officer upon a summons against a defendant states that he or she has left the county to avoid the service of the summons or has concealed himself or herself therein for that purpose, it shall be equivalent to the statement of the fact in the affidavit mentioned in subdivision (a)(1) of this section. (b) (1) The affidavit or grounds of attachment, may be amended so as to embrace any grounds of attachment that may exist up to, and until, the final judgment upon the attachments. If the amendment embraces grounds existing at the time of the commencement of the proceedings, and is sustained upon such grounds, the lien created by the suing out or levying of the original attachment shall be held to be good. (2) However, if the amendments embrace new grounds not existing at the time of suing out the original attachment and the attachment shall be sustained on the new grounds only, the lien shall exist on the property, levied upon from the filing of the original attachment. (3) A general order sustaining the attachment without designating the grounds upon which it is sustained shall be equivalent to sustaining the order on grounds that existed at the time the attachment was sued out. (c) (1) The order of attachment shall be directed and delivered to the county sheriff or other officer, with as many copies thereof as the plaintiff may direct. (2) It shall require him or her to attach and safely keep the property of the defendant in his or her county not exempt from execution, or so much thereof as will satisfy the plaintiff's claim specified in his or her affidavit, which shall be stated in the order and the probable costs of the action, not exceeding thirty dollars ($30.00). It shall also require him or her to summon the garnishees to answer in the action on the return day of the order and to make due return thereof. (3) The return day of the order of attachment when issued at the commencement of the action shall be the same as that of the summons. When the order of attachment is issued afterward, the commencement of the action may be another day in term at the option of the plaintiff.

Legislative History

Civil Code, §§ 217, 218, 220, 222; Acts 1871, No. 48, § 1 [217], p. 219; C. & M. Dig., §§ 496, 497, 499, 501; Pope's Dig., §§ 533, 534, 536, 538; A.S.A. 1947, §§ 31-105 -- 31-107, 31-110.