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94th Congress } COMHITTEE PRINT
DEPOEflTORY
Provisions of State Laws and~ Other Data Relating to
Wage Garnishment, Attachment
and Assigrn+ent, and
Establishment of Paternity
Background Information Prepared by the Staff for the
Use of the
COMMITTEE QN FINANCE
UNITED STATES SENATE
RUSSELL B. LONG, Chairman
RUTGEP~~ L~V~SCHOOL LIBRARY
~ N. J. 08102
GOVE1~NT i3OCUMENT
OCTOBER 1975
Printed for the use of the Committee on Finance
U.S. GOVERNMENT PRINTING OFFICE
51-207 WASHINGTON : 1975
/ ~
(~ ~`For sale by the Superintendent of Documents, U.S. Government Printing Office
/ / Washington, D.C. 20402 - Price $2.65
4~t 2~
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COMMITTEE ON FINANCE
RUSSELL B. LONG, Louisiana, Chairman
HERMAN B. TALMADGE, Georgia CARL T. CURTIS, Nebraska
VANCE HARTKE, Indiana PAUL J. FANNIN, Arizona
ABRAHAM RIBICOFF, Connecticut CLIFFORD P. HANSEN, Wyoming
HARRY F. BYRD, ~ra., Virginia ROBERT DOLE, Kansas
GAYLORD NELSON, Wisconsin BOB PA~KWOOD, Oregon
WALTER F. MONDALE, Minnesota WILLIAM V. ROTH, Ja., Delaware
MIKE GRAVEL, Alaska BILL BROOK, Tennessee
LLOYD BENTSEN, Texas
WILLIAM D. HATHAWAY, Maine
FLOYD K. HASKELL, Colorado
MICHAEL STERN, Staff Director
DONALD V. MOOREHEAD, Chief Minority Counsel
(II)
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Acknowledgment
The staff wishes to acknowledge the assistance provided by the
Congressional Research Service of the Library of Congress in the
p reparation of this committee print
(UI)
/~~c//)~() /~J~ ~ ~ C~
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Preface
Public Law 93-O4~. as amended~ established new provisiOns for
child 5U1)pOrt and establishment of patei'nity. This book assembles
material on various State laws and other data which should be helpful
in understanding the scope of the State laws which may be utilized
in the imp1ementat~on of the new proVlSlOflS.
(v)
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CONTENTS
Page
Preface V
I Garnishment of wages 1
II Attachment provisions of State laws 71
III Assignment. of wa~es 189
IV Estabhs~iment of ~aternity___.~. 211
V Appendix 261
Tables:
I. AFDC families, by number of illegitimate recipient
children. 1973 284
2. AFDC children by niunber and percent of illegitimate
children. 1q61 and 1973 286
~\oTE.-A detailed table of contents for each chapter listed above
can be found at the beginning of each chapter.
(VII)
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I. GARNISHMENT OF WAGES
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Garnishment of Wages
CONTENTS
A. Highlights of State Statutes Governing the Process of Gar-
nishment Lnder Judicial Procedures in Aid of Attach- lage
ments and Executions on Judgment 7
Code of Alabama 9
Alaska. Statutes 10
Arizona Revised Statutes 11
Arkansas Statut
California Civil Procedure Code 13
Colorado Ravised Statutes 14
Connecticut General Statut - 15
Delaware Code 16
District of Columbia Code 17
Florida Statutes 1
Code of Georgia 18
Hawaii Revis~d Statutes 19
Idaho Code 20
Illinois Revised Statutes 21
Indiana Statutes 22
Code of Iowa 23
Kansas Statutes 23
Kentucky Revised Statutes 24
Louisiana Revised Statutes 2o
Maine Revised Statutes 26
Maryland Code 27
Mas~achusetts General Laws 28
Michigan Compiled Laws 29
Minnesota Statutes 30
Mis~issippt Code 31
Missouri Statutes 32
99
Montana Code
T
~ ebraska Statutes
Nevada Revised Statutes 35
New Hampshire Revised Statutes 36
New Jersey Statutes 37
New Mexico Statutes 38
New York Consolidated Laws 39
North Carolina General Statutes 40
North Dakota Century Code_ 41
Ohio Revised Code 42
Oklahoma Statutes 43
(3)
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4
A-Continued rage
Oregon Revised Statutes
Pennsylvania Statutes
Rhode Island General Laws 46
South Carolina Code 47
South Dakota Compiled Laws 48
Tennessee Code 48
Texas Civil Statutes 50
Utah Code 50
Vermont Statutes 51
Virginia Code 52
Washington Revised Code
West Virginia Code 54
Wisconsin Statutes 55
Wyoming Statutes 57
B. Statutory Remedy for Recovery of Support and Maintenance
under the Aid to Families with Dependent Children Pro-
grain 59
Washington 60
Florida 62
Georgia 63
Maine 64
Utah 66
Virginia 68
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I. Garnishment of Wages
The common definition of garnishment is:
A statutory proceeding whereby a person's prolerty,
money. or credits in possession of, or under control of, or
owing by another are applied to payment of the former's
debt to a third person by proper statutory process against
the debtor and garnishee. (Black's Law Dictionary, 4th
Edition. 1951.)
This chapter has two parts, the first providing a separate treatment
of the principal features of the garnishment process issued through the
courts and the second dealing with new processes that might be
initiated without recourse to the courts.
Two States have no provision in State law relating to garnishment.
All the earnings of a debtor for his personal services is exempt from
garnishment in South Carolina. by statute. Current wages for per-
sonal services are not sul)]ect to garnishment in Texas by both the
constitution and civil statutes.
(5)
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A. Highlights of State Statutes Governing the Process of Garnish-
merit in Aid of Attachments and Executions on Judgment
This compilation sets forth the highlights of State laws relating to
wage attachments or garnishments through the courts. It is not in-
tended to be a comprehensive treatment of the process as it is made
available in the various States; a treatment of that nature would re-
quire an in-depth review of pertinent case law interpretative of the
State statutes and rules of the court.
Additionally, note must be. taken of two recent United States
Supreme Court decisions that are of particular application to State
statutory provisions respecting prejudgment attachments and gar-
ntshments. Read together, the cases set forth a constitutional principle
that. if due process standards are to be met, notice and hearing aimed
at establishing the probable validity of the prospective ju~Igrnent
creditors claim, must be afforded to the alleged debtor before he is
deprived of the use of his property. (See: Fiien.tes v. iSlienin, 407 U.S.
GT (i9T~): Sm~ac1ach v. Family Fin arwe Corp., 395 Y.S. 337 (1969).)
Further. the highlights included in the compilation are to be com-
pared with their corresponding provisions in the Federal Consumer
Credit Protection Act. Codified at 15 U.S.C. 1601 et seq. That act sets
out as exemptions in garnishment. actions (or process initiated as an
aid in attachment proceedings or in execution on a judgment) the
greater of the following: (a) 75% of the wage earner's disposable
income for that workweek, or (b) the amount by which such dis-
posable earnings for that week exceed 30 times the Federal minimum
hourly wage. In the case of earnings for any pay period other than a
week the Secretary of Labor is required to prescribe, by regulation, a
multiple of the Federal minimum hourly wage equivalent in effect to
that set fortlì in paragraph (b). (.15 U.S.C. § 1673 (a)).
The above restrictions are inapplicable to any order of any court for
the support of any person (15 U.S.C. § 1673 (b) (1)), nor may any em-
ployer discharge any employee by reason of the fact that his earnings
have been subjected to garnishment for any one indebtedness. (15
U.S.C. § 1674(a)).
The Federal act does not annul, alter, or affect, or exempt any
person from complying with the laws of any State prohibiting gar-
nishrnents~ providing for more limited garnishments than allowed
under the Federa.l act, or prohibiting the discharge of an employee by
reason of a garnishment of his wages. (15 U.S.C. § 1677).
On a comparative basis, then, the Federal exemption would be more
beneficial to an employer and would control in the States of: Alabama,
Arizona. Colorado, Delaware (excepting New Castle County), Michi-
gan, Mississippi. Oklahoma, RhOde Island, Tennessee, Utah, West
\Tirginia, and Wyoming; and, in certain circumstances, the Federal
exemption would be more beneficial and controlling in the States of:
Alaska, Arkansas, Florida, Hawaii, Illinois, Maryland, Missouri, New
(7)
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Hampshire, New Jersey, New York, North Carolina, Pennsylvania,
and South Dakota.
On the same basis, the Federa.l restriction respecting discharge of
an employee would apply in the States of: Alabama, Arizona, Arkan-
sas, Florida, Louisiana, Massachusetts, Mississippi, Missouri, Nevada,
New Hampshire, New Jersey, New Mexico, North Carolina, North
Dakota, Pennsylvania, Rhode Island, South Dakota, and Tennessee.
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Code of Alabama
Ea~e2p~ion.s
Seventy-five percent of wages, salaries or other compensation of
resident laborers or employees. (~ 7-630).
Personal property to the extent of $1,000 is exempted from sale or
execution or other process for the collection of a. debt. (~ 7-629). Per-
sonal property. in the exemption laws, includes wages. (TValker v.
lT77liu2ns and Bauler Con.stn. Go.~ 46 Ala. App. 3.37, 241 So. 2d. 896,
(1~C)'~.
C'onsu~ner Finance Act.-The exemption is the greater of: (a.) 80
percent of disposable earnings f~r that week, or (b) the amount by
which disposable earnings for t.h~mt week exceed 50 times the Federal
minimum hourly wage. (~ 5-326). Act applies t.o consumer loans,
consumer credit. sales aiìd consumer leases.
B~u'oie dcunent
No garnishment of earnings before judgment under Consumer
Finance Act. (~ ö-.3~6) otherwise, an employer may be served with
a writ of garnishment in suits in which judgment has been rendered or
in which judgment may be rendered. (~ 7-314, 996). Prejudgment
garnishment of salaries of public officials and employees is prohibited.
(~ 1-1033).
Public oftkers and employees
Salaries due officials and employees of a city, county or State govern-
mei~t. or any department or institution thereof, may be garnished after
judgment. (~ 1-1032).
/Servke of process
On the person authorized by law to draw a warrant on the treasury
of said government, or to issue a check for salary due. (~ 7-1033).
Time to answer
Within 30 days of service of the writ. (~ 7-999).
Examination of gcu~nishee
Plaintiff may demand oral examination of garnishee before the
Court., (~ 7-1011). He may also be examined on written interrogatories.
(§ 7-477). Answer may be controverted and issues tried by ôourt.
(~7-1020). .
Penalty on failure to answer
A conditional judgment may be entered for the amount of the
plaintiff's claim, to be made absolute unless appearance made within
30 days after notice of t.he conditional judgment.
Effect of writ
Nonexempt salary is to be retained during such period of time as is
necessary to accumulate a sum equal to the sum shown due by the court
on the writ. (~7-630).
(9)
t~1-2O7-75-----2
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Discharge of employee
No statutory provision.
NOTE: In Lasseter v. La.sseter, 266 Ala. 459, 97 So. 2d 555, it was held
that the salary of a public official is not subject to garnishment on a
decree for support and maintenance.
Alaska Statutes
Exemption$
The maximum part of the aggregate disposable income of an mdi-
vidual for any week which is subject to execution may not exceed: (a)
25% of his cilisposable income for that week, or (b) the amount by
which his disposable income for that week exceeds $114, whichever is
less. The multiple of the weekly wage for semimonthly and monthly
income periods is 21/c and 41/3 respectively.
Support orders.-The above exemptions are inapplicable to an order
of a court for the support of any person. (~ 09.35.080). Additionally,
the amount which the judgment debtor has been ordered to pay to a
court trustee as child support payments is exempt from execution.
(~ 09.35.085).
Before judgment
Prejudgment attachinent of nonexempt wages permitted after notice
and heari~ng. (~ 09.040.030; Alaska Rules of Court Procedure and
Administration, Civil Rule 89).
Public officers and employees
Salaries, wages, credits or other personal property in possession or
control of the State, or an organized or unorganized borough, city,
incorporated town, school district or other political subdivision, or a
board, institution, commission or officer of the State, belonging or owed
to any person, is subject to attachment and execution~ in the manner
and with the same effect as property in the possession of private
persons. (~ 09.35.330).
Service of p~rocess
Upon the Attorney-General and upon the state officer or agency
when the State or an officer or agency thereof is the party designated
as garnishee; and, upon the chief executive officer, chief clerk or
secretary of a public corporation summoned as garnishee. (Alaska
Rules of Court Procedure and Administration, Civil Rule 4).
Time to answer
Within a reasonable time and in any event within 24 hours, he must
furnish a statement designating the amount and description of per-
sonal property in his possession belonging to the defendant or any debt
he owes to the defendant. (~ 09.40.060).
Eceamination of garnishee
Upon refusal to answer, or providing an unsatisfactory answer, the
garnishee may be ordered to appear before the court and be examined.
(~ 09.40.060). Examination may also be by interrogatories after order
for appearance has issued. (Alaska Rules of Court Procedure and
Administration, Civil Rule 89). He may also be examined at trial of
any issues raised. (Rule 89).
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Penalty on failure to answer
Judgment may be rendered against the garnishee to the full value of
the defendant's property liable to the attachment and in his hands at
the time of the service of the writ. (Alaska Rules of Court Procedure
and Administration, Civil Rule 89).
Effect of writ
Binds wages and salaries owed at time of service of the writ.
(~ 09.40.040).
Discharge of en~ployee
No employer may discharge an employee by reason of the fact that
his income has been subject to execution for any one indebtedness.
(~ 09.35.OSO).
Arizona Revised Statutes
Excmptions
Fifty percent of resident debtor's wages, earnings or salary for per-
sonal services rendered at any time within 30 clays next preceding the
levy of garnishment when it appears from the debtor's affidavit that
such earnings, wages or salary are necessary for use by the debtor's
resident family supported wholly or in part by him. (~ 12-1594).
Before ~udam~nt
Permitted (~ 12-1571), but prejudgment garnishment of wages is
invalid in the absence of some provision respecting notice to the de-
fendant. and a hearing on the validity of the plaintiff's claim. (Term-
p~an Inc. v. Superior Court of Jfaricopa County, 105 Ariz. 270, 463
P.2d 6S. (1969)).
Pu Mic office IS and employees
The salaries of officers, deputies, clerks, and employees of the State
or its poljt~cal subdivisions is subject to garnishment. (~ 12-1601).
Serc ice of process
TTpon the State treasurer in the case of garnishment of salaries and
wages owed by the State; upon the chief disbursing officer of the politi-
cal subdivision in case of the garnishment of wages and salaries paid
by a political subdivision. (~ 12-1602).
Time to an-swer
In the superior court, the garnishee must answer within 10 days if
the writ is served in the county wherein the action is brought, and
within 20 days if served out of the county. In justice court if served
withm precinct in which action is brought, within 5 days; if without
the precinct but within the county, within 10 days; if within the county,
within 15 days. (~ 12-1576).
Examination of ga~nis1iee
Plaintiff or defendant may controvert the garnishee's answer and file
pleadings stating why they belie~ e the garnishee's answer is, incorrect.
Thereafter, the issue is resolved at trial. (~ 12.1589, 1590,).
Pen alt~ on failure to an-swer writ
If garnishee fails to answer within the time specified in the writ, the
court may. after judgment has been rendered against defendant, render
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judgment by default against garnishee for the full amount of the judg-
ment against defendant (~ 12-1583).
Effect of writ
Does not reach salary, wages or earnings earned by employee after
date of service. (Gillespie Land and Irrigation Co. v. Jones, 63 Ariz.
535, 164 P.2d 4J6).
Discharge of employee
No statutory provision.
Arkansas Statutes
Exemptions
Unmarried resident.-Personal property of a value of $200 is ex-
empt from execution for collection of any debt by contract. (Const.
Art. 9, § 1).
Married resident or head of amily.-Personal property of a value
of $500 is exempt from execution for collection of any debt by con-
tract. (Const. Art. 9, § 2).
Laborers and mechanics
Wages for 60 days exempt provided a statement is filed to the effect
that said wages plus personal property holdings are less than the
constitutional exemption (~ 30-207). The first $25 per week of net
wages is absolutely exempt without the necessity of filing a scliedule~
of exemptions. (~ 30-207(b)).
NOTE: Courts are specifically authorized to enforce their order or
decrees for alimoi~y and support by sequestration of defendant's
property, or by such other lawful means, including equitable garnish-
ment.(~34-1212).
Before §udgment
Prejudgment garnishment authorized. (~ 31-501). Prejudgment.
garnishment of the State is prohibited. (~ 31-521).
Public officers
Any indebtedness, goods and chattels, moneys, c~edits or effects be-
longing to a defendant in a civil action and in the hands or possession
of the State, any subdivision thereof, institution, department, special
district or instrumentality of the State shall be subject to garnish-
ment. (~ 31-519).
Service of process
Upon the individual representing the State, subdivision thereof, in-
stitution, department, special district or instrumentailty of the State~
(~ 31-520).
Time to answer
Return day named in the writ. (~ 31-506).
Examination of garnishee
If the plaintiff shall deem the garnishee's answer to be untrue or
insufficient, he may deny such answer and have the issue tried by a
couit or jury (~ 31-508) Inter rogatories filed ~uth writ (~ 31-505)
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Penctity on failure to answer
If garnishee neglects or refuses to answer the writ, judgment must
be entered against him for the full amount of the plaintiff's judgment,
phis costs. (~ 31-512).
Effect of wiit
Bhuis all property in the garnishee's hands and belonging to the
(~e:enoant at the time of service. (Hariis v. Harris, 201 Ark. 684,
146 S.W. (2d) 539).
Di/cirge 07 employee
No statutory provision.
California, Civil Procedure Code
Fifty percent or such greater j~ortion as is allowed by statute of
the Fnited States of earnings received for personal services rendered
whhin 30 days preceding date of witlthoiding by the employer.
One hundred percent of earnings for personal services rendered 30
days preceding date of witiiholdmg by employer if needed for the
support of his resident family.
E.vccptiom-100 percent exemption inapplicable if the debt was in-
curred by the debtor, his wife or his family for the common necessaries
of life, or. if the debt was incurred for personal services rendered by
any employee or former employee of the debtor. (C.C.P. § 690.6).
Norn: Earnings not exempt against judgment for alimony. (Bruton
Tenle. Cal. 2d.48. 59 P.2d. 953~ (1936)).
No exemption fron~ writ of exe~ution issued against 50 percent of
~arningsof absent parent after judgment in action for support; earn-
ings received for personal services are not exempt from levy of attach-
~neiit in connection with such support judgment. (C.C.P. § 690.6).
Bc7!o;'e jucigment
Writ may be issued at time of issuance of summons or afterwards.
(C.C.P. § 537-538); but prejudgment garnishment of wages violates
procedural due process. (Lynch v. Superior Court of Los Angeles
County, 83 Cal. Rptr. 670,464 P.2d 126 (1970)).
Pub lie officers and employees
After judgment, money due officers and employees of the State or
its political subdivisions is subject to garnishment. (C.C.P. § 710).
Norn: Governor, Lieutenant Governor, Secretary of State, Con-
troller, Treasurer and Attorney-General are exempted.
Service of process
The judgment creditor shall file a duly authenticated abstract or
transcript of such judgment, together with an affidavit stating the
exact amount then due and owing and unpaid, with the State depart-
ment, hoard, office or commission owing such money, or with the audi-
tor of the political subdivision owing such money, wages or salary
to the judgment debtor. (C.C.P.~710).
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Time to answer
The party owing the debts or credits to the judgment debtor must
supply a memorandum thereof within 10 days after service to the
officer levying the attachment or garnishment. (C.C.P. § 546).
Exarimination of garnishee
Any person having any credits belonging to defendant may be re-
quired to attend before a court or judge, or a referee appointed by the
court or judge and be examined on oath respecting the same. (C.C.P.
§ 545).
Penalty on failure to answer
Failure to supply the required memorandum within the time speci-
fied may subject the employer to liability for payment of costs of
proceedings for the purpose of obtaining the required information.
(C.C.P. § 546).
Effect of writ
Garnishee is liable to plaintiff until garnishment is released or
judgment is satisfied. (C.C.P. §~ 544, 550).
Discharge of employee
Prohibited (Labor Code § 2929).
Colorado Revised Statutes
Exemptions
Head of farnily.-70% of earnings due at time of service of the gar-
nishment summons. Single person: 35% of such earnings. (§ 13-54-
104.) The above exemptions are subject to the exemption provisions of
the Uniform Consumer Credit Code, which exempts the greater of:
(a) 75% of disposable earnings for a workweek, or (b) the amount
each week equal to 30 times the Federal minimum hourly wage. For
pay period other than a workweek, an appropriate multiple determined
by the administrator shall be applied to ascertain the amount of the
exemption. (§ 5-5-105; Colorado Rules of Civil Procedure, Rule
103(a)).
Before judgment
May issue garnishment any time after issuance of an attachment
(which may be issued before judgment) providing the sum exceeds
twenty dollars. (Colorado Rules of Civil Procedure, Rule 103(a)).
No prejudgment garnishment for debts arising from consumer credit
sale, consumer lease or consumer loan. (~ 5-5-104). Attachment issues
only at or after complaint filed. (Colorado Rules of Civil Procedure,
Rule 102).
Public officers and employees
Salaries and wages of officers and employees of the State, municipal
and quasi-municipal corporations, or boards and commissions thereof,
is subject to garnishment. Exception: officers whose salaries or fees are
fixed by the State Constitution. (§ 13-61-101).
Service of process
Upon the officer whose duty it is to issue pay warrants, checks or
money in payment of salaries and wages. (Colorado Rules of Civil
Procedure, Rule 103 (d)).
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Time to answer
Within the time specified in the writ. (Colorado Rules of Civil
Procedure, Rule 103 (e)).
Exam ~i2at2On. of garnishee
Interro~atories submitted and answered under oath and on failure
to answer interro~atorieS. the plaintiff may enter a default against
him and proceed `before ~he court to irove the garnishee's liability,
and in such case. the garnishee may be compelled to give testimony as
a witness. His answer may also be, traversed and issues thereby raised
are ttiecl by the court. (Colorado Rules of Civil Procedure, Rule
10~(g'). (1), (n)).
Pen aThJ on failure to answer
Plaintiff may have judgment entered (on the default) the same as
if the garnishee had answered. If the employer is found liable, the
plaintiff may recover costs, otherwise, the employer is discharged with-
out costs. (Colorado Rules of Civil Procedure, Rule 103(e)).
E~cct of writ
Bincis wages earned at the time of service. (Colorado Rules of Civil
Procedure. Rule 103 (k)).
Disclutrge of employee
Prohibited with respect to garnishments on judgments arising out
of consumer transactions. (~ 5-5-106).
Connecticut General Statutes
Exemption
The greater of: (1) 75% of disposable earnings for a workweek, or
(2) disposable earnings for a workweek up to the greater of S65 or
the amount equal to forty times the Federal minimum hourly wage.
(~ 52-361(b)).
Support orders.-Exemption limited to $25 per workweek
(~ 52-362).
Before jueigment
Wage executions issue only after a judgment order has been en-
tered and judgment debtor defaults in complying with the terms of
the order. (§ 52-361(a)).
Public officials and employees
Earnings of State employees are subject to wage executions (~ 52-
361(c)).
Service of process
May be made on the clerk or chief presiding officer of a political
subdivision (~ 52-57) or upon the State by leaving a true and attested
copy of the process with the Attorney-General (~ 52-64).
Pen alt?,' on failure to answer
No statutory provisions requiring answers. Employer required to
pay over nonexernpt wages as of date of service of the writ, which is
a continuing levy. Upon failure to pay, the employer is liable to an
action by the judgment creditor. (~ 52-361 (e)).
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Effect of writ
A continuing levy until such execution and expenses are fully satiS-
fied. (~ 52-361(b), 362).
Discharge of employee
Prohibited unless garnishments exceed seven in a calendar year.
(~ 52-361 (Ii)).
Delaware Code
Exemptions
Eighty-five percent of wages (~ 10-4913).
Support orders.-Not more than 25% of defendant's "net" or "take
borne" salary or wages shall be attached for 1 child whom defendant is
legally obligated to support, and not more than an additional 5% of
"net" or "take home" salary or wages shall be attached for each addi-
tional child whom defendant is legally bound to support. (~ 10-4913;
13-507(d)).
Before judgment
Writs of attachments containing an order summoning the employer
as garnishee may be issued before judgment. (~ 10-3501).
Public officers and employees
Subject to attachment and garnishment. (~ 10-3503(a)).
Service of process
Made upon any officer of the State or its political subdivisions whose
duty it is to pay such employees compensation from funds of the State
or the political subdivision. (~ 10-3503(a)).
Time to answer
Garnishee must serve answer within 20 days specifying money and
credits of a defendant in his possession. (Superior Court Civil Rules,
Rule 5).
Examination of garnishee
At option of the plaintiff, garnishee's answer may be taken by affi-
davit before any person authorized to administer oaths. A prejudg-
ment garnishee who fails to appear, as required, may be compelled to
appear and answer or plead. (~ 10-3509). A plaintiff may file excep-
tions to an answer and the issues thereby raised will be tried by the
court.. (Superior Court Civil Rules, Rule 5).
Penalty on failure to answer
Judgment may be entered for plaintiff in an amount equal to the
value of the property of the defendant in the garnishee's custody or
possession, or for the amount of his judgment, whichever is less. (Su-
perior Court Civil Rules, Rule 5).
Effect of writ
Garnishment attaches at time when garnishee is served and con-
tinues on all moneys which accrue to the debtor's credit until the gar-
nishment is answered. (Cooper's Home Furnishings Inc. v. Lolley, 270
A 2d. 676. (Del Super. Ct. 1970)).
Discharge of employee
An employer shall not discharge an employee because the employer
was summoned as garnishee. (~ 10-3509).
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District of Columbia Code
Exemption.s
Greater of: (1') 73% of disposable earnings for a workweek, or (2)
amount of disposable earnings foi~ a workweek equal to 30 times the
Federal minimum wage. (~ 16-572). For pay periods longer than one
week. the exemption equa's the number of workweeks (or fraction
thereof) times 30 times the applicable Federal minimum wage. (Mini-
mum Wage. and Industrial Safety, Board Order No. 74-4).
Employer.-Garnishee. shall not withhold or pay over more than
10% of gross wages for any period ending in any calendar month until
the total amount of gross wages equals $200; nor more than 20% of
gross wages in excess of $200 until the total amount of gross wages
equal 8500. (~ 16-573(d)).
~ ~PP~'~ o;deis.-Limitation shall be 50% of gross wages br the pay
period or Pe1'iOclS ending in any calendar month.
Dc?toi n'ho i~' pnincipal~ support of hw fa.mziy.-Two-hundred
dollars each month of earnings (other than wages) of person residing
or earning major portion of his livelihood in the District of Columbia
is exempt for 2 months next preceding issuance of the writ.
Debtor who is not the principal suqi~ort of his farniiy.-Sixty clol-
let's each month of earnings (otli~r than wages) for 2 months preced-
ing date of attachment of persons residing or earning the major
nertion of their income in the District of Columbia. (~ 15-503).
Bc"ore ~`dainc;2t
Prohibited (~ 16-5S3).
P~~c ofliceis and employees
:co starutorv authorization.
T~n?*e to ains~cei'
Within 10 days after service of the writ. (~ 16-521a.).
Examination of garnishee
In addition to answers to written interrogatories, the garnishee, on
motion, may be required to appear in court and be examined orally
under oath. (~ 16-521 (b). 552(b)). An answer may be traversed and
issues raised tried by a court or jury. (~ 16-553).
Penalty on failure to answer
Judgment may be entered against the garnishee for the whole of the
plamtiff's judgment (~ 16-526. 556) or for an amount equal to the
percentages with respect to which the failure occurs in garnishments
in aid of execution of support orders. (§ 16-575).
Effect of writ .
Until judgment satisfied, writ, is a continuing levy upon wages
(~. 16-572).
Discharge of employee ~.
Prohibited (~ 16-584).
Florida Statutes
Exemptions'
One hundred percent of wages due for personal services or labor per-
formed by a head of a family are exempt front garnishment.
(~ 222.11).
PAGENO="0026"
18
Support orders.-Such amount as the court shall order to be with-
held. (~61.12).
Be/ore judgment
No garnishment shall issue before judgment in any action sounding
in tort. The writ is available before judgment in suits to recover a debt.
(~ 77.01).
Pu7)lic officers and employees
Subject to garnishment proceedings to enforce court orders for ali-
mony, suit money or support, or other proceedings for dissolution,
alimony, or child support. (~ 61.12).
Service of process
Served on public officer whose duty it is td pay the salary of a State
or county public officer. (§ 61.12).
q7j~ to answer
Garnishee required to answer writ within 20 days after service.
(~ 77.04).
Examination of garni~1iee
If plaintiff unsatisfied with garnishee's answer, he shall serve a reply
within 20 days denying the allegations of the answer. (§ 77.061). The
issue thereby raised may be tried by a judge or jury. (~ 77.07, .08).
Penalty on failure to answer
A default shall be entered in the cause and, upon final judgment in
favor of the plaintiff, judgment shall be entered against the garnishee
for the amount of the plaintiff's claim with interest and costs.
(~ 77.081).
Effect of writ
Writ attaches all credits and debts due to defendant at the time of
its service on the garnishee or at any time between the service and the
time of the garnishee's answer. (~ 77.06).
Discharge of employee
No statutory provision. The Federal restriction would apply.
Code of Georgia
Exemptions
The lesser of: (a) 25% of disposable earnings for that workweek, or
(b) the amount by which disposable earnings for that workweek ex-
ceed 30 times the Federal minimum hourly wage in effect at the time
the earnings are payable. In the case of pay periods of other than one
week, a multiple of the minimum Federal hourly wage that is equal in
effect to the weekly exemption. (~ 46-208).
NOTE: Exemption from garnishment is ineffective as against a decree
for alimony. (Huling v. Huling, 195 Ga. 819, 22 S.E. 2d. 832 (1952)).
Before judgment
Authorized by statute (§ 46-101) but held unconstitutional in pres-
ent form as violative of due process in that it permits prejudgment
garnishment without notice or hearing to the alleged debtor. (Morrow
Electric Co. Inc. v. Uruse, (D.C. Ga. 1974) 370 F.Supp. 639).
PAGENO="0027"
19
Public officers and employees
Money due officials or employees of the State or its political subdivi-
sions, as salary for services performed, many be garnished. (~ 46-801).
Sei'rice of process
Writ is to be served on the person authorized by law to draw the war-
rant on the treasury of the government to be garnished. (~ 46-802).
T~;'w to answeI
Garnishee is required to answer `under oath not sooner than 30 days
and not later than 45 days of the service of a summons of garnishment.
(.~ 46-105).
Examination of garnishee
Garnishee's answer may be tra~ersed by a plaintiff or claimant, or
both. and the issue raised thereby may be tried by a jury. (~ 46-303).
A garnishee may also be required to make his answer under oath in the
court where suit is pending or judgment has been obtained. (~ 46-105).
Pcra~tu on ~`aiiure to answer
.Jud~rnent by default may be entered against the garnishee for the
amount of such judgment as may have been obtained against the
defendant. (~ 46-406).
Effect of writ
Attaches to all money and credits due at time of service and that
accrue to the debtor's credit up to the date of the answer. (~ 46-203).
Discharge of employee
Prohibited with respect to any one indebtedness. (~ 46-215).
Hawaii Revised Statutes
E~cc;i2ption.s
Ninety-five percent of the first $100 per month, ninety percent of
the next S100 per month. and eighty percent of all sums in excess of
S200 per month. (~ 652.1).
Before jwdgment
Permitted upon hearing and proof of statutory grounds required to
be alleged in plaintiff's motion for an attachment of wages, salary or
commissions before judgment. (~ 652-1, 653-6).
Public officer.s and employees
The salary, stipend or wages of an officer or employee of the State
or its political subdivisions is subject to garnishment. (~ 653-2).
Sertice of process
Writ is served on the comptroller of the State or political subdivi-
sion. After judgment, the judgment , creditor's affidavit, as ~to the
amount due and unpaid, along with a certified copy of the judgment,
may be filed with the comptroller' in lieu of a garnishee summons.
(~ 6536).
Time to answer
On retuin day specified in the writ (~ 652-f) No `tnswer or court
appearance is required with respect to the garnishment of the salary,
PAGENO="0028"
20
stipend or wages of public officials and employees; it is sufficient for
the garnish~e in such cases to withhold the required amount or
amounts which shall thereafter be deemed sequestered in the treas-
ury of the State or its political subdivision. (~ 653-11).
Eo~a.mination of garnwhee
Either party to an action may, on written notice served on the
garnishee, require the garnishee to appear and be examined under oath
as to the disclosures in his return or as to his liability as garnishee.
(~ 652-1). Does not apply in garnishments directed to the State. or
its political subdivisions. (~ 653-11).
Penalty on failure to answer
If plaintiff recovers a judgment, execution shall issue at his request,
against the estate of the contumacious garnishee for the amount of the
judgment. (~ 652-8).
Effect of writ
Contiiiues until judgment is satisfied. (~ 652-3, 4; 653-11).
Discharge of employee
Prohibited. (~ 387-32).
Idaho Code
Exemptions
The greater of: (a) 75 percent of disposable earnings for a work-
week, or (b) the amount by which disposable earnings for that work-
week exceed 30 times the Federal minimum hourly wage. For pay
periods other than a week, the exemption is to be determined by ap-
plication of an appropriate multiple of the Federal, minimum hourly
wage equivalent, in effect , to (b) above. (~ 11-207).
Uniform consumer credit code.-The exemption is the greater of:
(a) 75 percent of disposable earnings for that workweek, or (b) the
amount by which disposable earnings for that week exceed 40 times
the Federal minimmn hourly wage. For pay periods other than a week,
an appropriate multiple of the Federal minimum hourly wage equiv-
alent, in effect, to (b) applies. (~ 28-35-105).
Support orders.-Exemptions of § 11-207 inapplicable to support
orders. V
Before judgment
Permitted if, on a show cause hearing, it is shown that there is a
reasonable probability the plaintiff will prevail. (~ 8-502 (e)). Pro-
hibited in consumer credit transactions. (§ 28-35-104).
Public officers and employees
Permitted as to all except elected officers. (~ 8-502, 11-202).
Service of process
Service is to be made on the mayor, president of the council or
board of trustees, or any presiding officer of a political subdivision.
(§ 8-507). As to State officers and employees, service is to be made on
the State auditor. (§ 11-202).
Time to answer
Within 5 days of service. (~ 8-512).
PAGENO="0029"
21
Examinatiom of garnishee
Garnishee may be required to attend before the court, a. judge or a
referee. for examination under oath. (~ 8-509). Examination may also
be by written interrogatories. (~ 8-511). A plaintiff may also file ex-
ceptions to an answer and issues thus presented may be tried by a
court. ( S-.514).
Pei~altg on failure to answer
Failure or refusal to answer may result in a default judgment for
an amount not greater than the~ debt claimed by the plaintiff, plus
interest and costs. (~ 8-512).
Eflcct of ijiit
Binds all credits until it is discharged or any judgment recovered
by the plaintiff is satisfied. (~ 8-508).
Discharge of e2mployee
Prohibited under Consumer Credit Code. (~ 28-35-106).
IllinoiS Revised Statutes
Wages. salary, commissions, bonuses and periodic payments pursu-
ant to a reuremeilt or pension plan are exempt to the extent of: (a)
S65 per week in the case of a. he~ad of a family who contributes sub-
stantially to its support and $50 per week for a nonhead of a fam-
ilv. or (b) Sii percent of such funds, or (c) the amounts prescribed
by Title III of the Federal Consumer Protection Act, whichever
amount is ~reater. (~62-73).
Before judgment
No statutory authorization with respect to garnishment of wages.
P~i7 lie o~cers and employees
Precluded on public policy grounds. (Lloyd v. State, 11 Ill. Ct. Cl.
4~e3; and Q~it~ow v. Ilennessey, 38 Iii. App. 176, 86 N.E. 2nd 836.
77~~ to aik~wer
Writ must be answered by garnishee on or before the return date
therein specified. (~ 62-77).
Examination of garnishee
Judgment creditor may contest the employer's answer in which
case the issues shall be immediately tried by the court. (~ 62-80),
may also be examined on written interrogatories. (~ 62-74).
Penalty on failure to answer
A conditional judgment may be entered against the employer for
tile amount due on the imderlying judgment against the judgment
debtor. A summons to confirm the conditional judgment then issues
and if the employer fails to answer the summons (which is return-
able not less than 10 nor more than 20 days after issuance) final judg-
ment is entered for the balance of the underlying judgment and costs
(~ 62-TO).
PAGENO="0030"
22
Effect of writ
Writ continues until the total amount due on the judgment and
costs is paid. (~62-77).
Discharge of en~ployee
Prohibited for any one indebtedness. (~ 62-88).
Indiana Statutes
Exemptions
Under Uniform Consumer Credit Code, only 25 percent of dis-
posable earnings in excess of 30 times the Federal minimum hourly
wage may be garnished. (~ 24-4.5-5-105).
Support orders.-Exemption inapplicable to court orders for the
support of any person, and to any decree awarding alimony or attor-
ney's fees therein when such decree specifies the amount or percentage
of the disposable earnings to be applied thereon. (~ 24-4.5-5-105).
Resident householders.-An exemption of $15 per week plus 90
percent of excess over $15, $1,000 maximum. (~ 34-2-28-1).
Householders.-An exemption not exceeding $25 at any one time.
(~ 34-1-11-47).
No'r~: In Mim~s c& Commercial Credit Co., 307 N.E. 2d. 867 (S.
Cit md., 1974) it was held t.hat the uniform garnishment exemption
does not repeal the resident-householder exemption, but that under
the two statutes, the debtor defendant who satisfies the requirements
of the resident-householder exemption and whose indebtedness flows
from a contractural breech is entitled to whichever results in the least
amount of garnished income.
Before judgment
Permitted in personal actions arising upon contract (~ 34-1-11-20)
but prohibited with respect to actions under the Consumer Credit
Code (~ 24-4.5-5-104).
* Public officers and employees
Permitted on order of court in satisfaction of a judgment.
(~ 34-1-44-7).
Service of process
Court order to be. served upon the governmental officer indicated to
the judgment debtor. (~ 34-1-44-7).
Time to answer
\Vithin 5 days of service. (~ 34-1-11-22).
Examination of garnishee
On failure to answer within the specified time, the garnishee may
be required to appear before the court for exarninati~h proceedings
under oath. (~ 34-1-11-22).
Penalty on failure to answer
A garnishee failing to answer may be defaulted and judgment
rendered against him as against other ~defenda.nts. (~ 34-1-11-23).
Effect of writ
From the day of the service of summons, the garnishee shall be ~e-
countable to the plaintiff in the action for the amount of money,
property or credit in his hands. (~ 34-1-11-21).
PAGENO="0031"
23
Discharge of employee
Prohibited (~ 24-4.5-5-106).
Code Of Iowa
The greater of: (a) ~5 percent of disposable earnii1gS for a work-
week. or (b) amount each week equal to 30 times the Federal minimum
hourly wage. For pay periods other than a week, a multiple of the
minimum hourly wage equal in eff~ect to the week]y exemption applies.
Excepting support orders, the. annual maximum exemption is $250
for each judament creditor. (~ 642.21.)
£`imer Uredit Act.-Exemption is the greater of: (a) 75 percent
of disposable workweek earnings; or (b) 40 times the Federal mini-
nmm hourly wage. A consumer may apply to the court for a greater
exemption on the ground that it is necessary for the maintenance of
the consumer or a family wholly or partially supported by the con-
sumer. The court may exempt. part or all of the earnings in such
application. (Ia. Acts 1974, c. 1~50, § 5.105).
Before iudgm~nt
Permitted in aid of an attachment. (Eller v. National Motor TTehicle
Co.. 1SI Iowa 679, 165 N.W. 64). Prohibited in consumer credit trans-
actions. (Ia. Acts 19T4~ c. 1250~ § 5.105).
Public officers and employees
State officials cannot be garnished. (Op. Atty-Gen. 1911-12, p. 433).
Municipal or political corporations shall not be garnished. (~ 642.2).
rime to answe;' writ
Plaintiff ma direct the sheriff to take the garnishee's answer at
time of service of the writ.. (~ 642.ö).
Exantination of garnishee
If garnishee refuses to answer fully and unequivocally all the fore-
going interrogatories, he shall be notified to appear and answer in
court, and he may be so required in any event, if the plaintiff so notifies
him. (~ 642.6, 7). The answer niay be controverted and issues raised
tried by court. (~ 642.11).
Pcnalt?j on failure to answer
Judgment may be rendered for the full amount of the plaintiff's
demand. (~ 642.9).
Effect of writ
Writ attaches to amounts owing to defendant at time of its service.
(~ 642.10, 21).
Discharge of employee
Prohibited (~ 642.21).
Kansas Statutes
Excr~ptions
Greater of: (1) 75 percent of aggregate disposable earnings for a
workweek, or (2) the amount by which the aggregate disposable earn-
ings for that workweek or multiple thereof exceed an amount equal
PAGENO="0032"
C)
h.
to 30 times the Federal minimum hourly wage, or equivalent multiple
thereof for such longer period, whichever is less. (~ 60-2310(b)).
Support oider.-Restrictions do not apply to any order to any court
for the support of any person. (~ 60-2310(e) (1)).
Before judgment
Available upon showing a ground or grounds of attachment. (§ 60-
715).
Public officers and employees
Garnishment law applies to all State, county, city, township and
school district officers and employees as well as to all officers and em-
ployees of all municipal or quasi-municipal corporations. (~ 60-723).
Ser?~ide of process
Upon a public officer for the State or any instrumentality thereof.
(~60-718).
Time to answer
Within 30 days after service of a garnishment seeking to attach
earnings due and owing to the defendant. (~ 60-718 (b)).
Exanvinatiort of gar~nis1iee
If a reply is filed to the garnishee's answer, the court shall try the
issues joined thereby. Must also answer interrogatories on writ. (~ 60-
718).
Penalty on failure to answer
Judgment may be taken against the garnishee for the amount of
the plaintiffs judgment or claim against defendant. Judgment against
the State or any instrumentality thereof shall be limited to an amount
for claim and costs not exceeding the total amount of the indebted-
ness of the State or instrumentality thereof to the defendant. (~ 60-
718(c)).
Effect of writ
Writ attaches to earnings for the entire normal pay period in which
the order is served. (~ 60-717(c)).
Discharge of employee
Prohibited for any three indebtednesses. (§ 60-2311).
Kentucky Revised Statutes
Exemptions
The maximum disposable earnings for any workweek subject to
garnishment may not exceed: (1) 25 percent of his disposable earnings
for that workweek, or (2) the amount by which his disposable earnings
for that week exceed 30 times the Federal minimum hourly wage.
(~427.010(2) (a), (b)).
Support orders.-The above restrictions do not apply to any order
of any court for the support of any person. (~ 427.010(3)), nor to
garnishments issued for the collection or maintenance of minor chil~
dren. (~ 427.045).
PAGENO="0033"
25
Before :i~idgme~it
Prejudgment garnishment treated as an attachment. Person seeking
order must make a demand in writing and deliver such demand to the
debtor at least 7 and not more than 60 days before such order is sought.
`The demand shall advise defendant he has 7 days to petition the court
for a hearing or in which to pay the claim in full, and that unless a
hearing is set or the claim paid, an order of attachment or garnishment
will be sought to subject his earning's to the payment of the claim.
(~ 42~5.1S5(h) (4)).
Pr~7i~a C~CCiS and emp7oyees
Salaries or sums due State, couilty, city and school board officers and
employees. and all sums due any person from the State or any agency
or department thereof and all sumS clue from any county school board,
city or county. shall be subject to garnishment. (~ 427.130(1), (2)).
;~ri of process
Made upon the commissioner of finance, and the State treasurer.
(~.
~o
Xffldavit (answer) must be filed ~mcl served in the manner and at.
the tune required for an answer by the Rules of Civil Procedure.
(42Z~:ifl5).
E~un ination. of garnishee
A garnishee may appear in court rather than file an answer to the
writ and he may be compelled to appear if he should default by not
appearing to answer the writ. (~ 42.5.315).
or 7'ailure to answer
On failure to make a. satisfactory disclosure, he may be made a de-
fondant in the suit. and the plaintiff may proceed against the garnishee
:n the same manner as the defendant might proceed in an action agarnst
the garnishee to recover property held or a debt owing to the garnishee.
(~ 425.32.5).
Effect of writ
Attaches to property in garnishee's possession at time of service of
the writ. (~ 425.190).
Discharge of employee
Employee may not be discharged by reason of the. fact that his earn-
ings have been subjected to garnishment for any one indebtedness.
(~ 42T.140'~.
Louisiana Revised Statutes
Exemptions
Seventy-five percent of disposable. earnings for any week, but, not
less than $70 per week, or a multiple or fraction thereof according to
whether the employee's pay period is greater or lesser than one week.
(~ 13 :3881).
Support orders.-Exemption inapplicable to orders for support of
parents and grandparents. (§`~ 13~ :4731, 4732). Child support orders
take precedence over all garnishments of a father's wages. (~13 :3928).
51-207-75-----3
PAGENO="0034"
26
Before judgment
Garnishment available in aid of attachment (La. Code of Civil
Procedure, Act. 3503).
Public officers and employees
State waives its immunity from garnishment only with respect to
public employees or contractors of the State, its agencies, boards, corn-
missions, political subdivisions, public corporations, and municipal:
corporations. (~ 13-3881).
Service of process
Upon the chief executive officer of the political entity. (G.O.P. 1265).
Time to answer
Within 15 days of date of service (G.O.P. 2412).
Examivation of garnishee
Garnishee's answer to interrogatories may be traversed by the at-
taching creditor and issues thereby raised are tried by the court.
(C.C.P. 2414). Garnishee may also be examined by interrogatories.
(~ 13:3924).
Penalty on failure to answer
Judgment may be rendered against garnishee for full amount of~
the unpaid judgment, with interest and costs. (C.C.P. 2413).
Effect of writ
Seizure includes both accrued and future earnings. (C.C.P. 2411)
Sun Sales Co. v. Hodges, 256 La. 687, 237 So. 2d 684, (1970).
Discharge of employee
No statutory provision.
Maine Revised Statutes
Exemptions
Under trustee process, 100 percent of wages due a debtor for his~
personal labor, or that of his wife or minor children, is exempt.
(~ 14-2602(6)).
Enforcement of money jucigments.-When a judgment debtor ic-
ceives money or earnings from a source other than a~ source which is
otherwise exempt from trustee process, the maximum amount of the
earnings of any natural person fo~ any workweek that may be subjected
to an installment payment order of the court may not exceed: (1) 25
percent of the judgment debtor's ~disposable earnings for that week,.
or (2) the amount by which his disposable earnings for that week
exceed 30 times the Federal minimum hourly wage, whichever is less.
~`iultiples of the Federal mininmin hourly wage are exempt for non-
weekly pay periods, as per regulations of the LTnited States Secretary
of Labor. (~ 14-3121).
Consumer C!redit Code.-Garnishment to enforce judgments arising
from consumer credit transactions. the exemption is equal to 75 percent
of weekly disposable earnings or 40 times the Federal minimum hourly
wage. Multiples of the Federal minimum hourly wage are to be pre--
scribed for nonweekly pay periods. (~ DA-5.105).
PAGENO="0035"
27
Before n~dament
Prohibited under the Consumer Credit Code (~ 9A-5.104). Author-
izeci ut~der trustee process at commencement of any noiiexcepted
persolial actton. ~ 1-t-2601).
P~'~li~ offlcei'~ and employees
The statute providing that no person shall be ac1~udged trustee by
reason of any money in his hands as a public officer has been inter-
preted as not~ applviiig to cases of personal indebtedness on the part of
such officer. (Tyler v. Win-slow, 46 Me. 348 (1859) interpreting
14-2002).
~c~ee o7piUCe~Q8
Fpon a county, by serving a county comrnissioner~ their clerk, or
the county treasurer. Tpon a towm by serving the town clerk, seiect~
man ot- assessor. [pon a~ city, by serving the city clerk, treasurer
manager. Fpon arr~- other public cOrl)oration or body, by serving any
director. oflicer or manager thereof. (Maine Rules of Civil Procedure,
Rule 4).
iun~ to /72~?iCi'
Within 20 days of service. (Maine Rules of Civil Procedure, Rule
4B).
E:c~m ii~'t~on oi aarn W~ee
Garnishee must submit his disclosure under oath and submit to
examination. (~ 14-2T01. 2TOfl.
on fa~lamn to answer
Garnishee is liable for all cost~ (~ 14-2701) and is liable for the
whole sum remaining due on the judgment against the defendant.
(~ 14-2952).
Dscharqe of emplo?/ee
Discharge for subjection of earnings to installment order. (~ 14-
313). Discharge for subjection of unpaid earnings to satisfaction of
judgment arising from consumer credit transaction prohibited.
~ 9A-5.106).
Maryland Code
Exemption
The amount equal to $120 multiplied by the number of weeks in
which such wages due were earned, or 75 percent of such wages,
whichever is greater. (Art. 9, ~ 31 (a)).
C~i~o7ine, lVorcester, Kent, and Queen Anne Uounties.-The exemp-
tion is the greater of: (1) 75 percent of the wages due or (2) 30 times
the federal minimum hourly wage. (Art. 9, § 31(a)).
lT7fe ai~d child .support.-Willful neglect to support a wife or child
~s a misdemeanor. In lieu of punishment on conviction1 the court may
order the defendant to pay a certain sum weekl toward their support.
Any such order is a lien on defendant's earnings and the employer is
required to deduct such sum and pay it over to the Probation Depart-
ment. (Art. 27, § 88).
PAGENO="0036"
28
Before 3uclgment
No separate garnishment proceeding exists. Practice is to levy an
attachment. In such proceeding, the third party is referred to as a
garnishee. Pursuant to the Maryland Rules of Procedure, an attach-
ment may issue on original process against matured or unmatured
property or credits upon the application of any person that has the
right to become a `plaintiff in an action. (Maryland Rules of Proce-
dure, Rule G40).
Public offlers and employees
No statutory provision.
Time to answer
Within 15 days after return day. If interrogatories are served upon
the garnishee, answer thereto must be made within 30 days after serv-
ice. (Maryland Rules of Procedure, Rules G47, G56).
Eceamination of ga~ishee
By appearance in court to show cause why property or credits `at-
tached should not be condemned, and by interrogatories. (Maryland
Rules of Procedure, Rules G47, G56).
PenaZty on faiZure to answer
Judgment may be entered for the full amount of the plaintiff's
claim. (Maryland Rules of Procedure, Rule G56).
Effect of writ
Writ does not affect salary of wages which are not actually due at
date of attachment. (Art. 9, § 31 (a)).
Discharge of emp7oyee
May not discharge an employee by reason of the fact that his earn-
ings have been subjected to garnishment for any one indebtedness
within a calendar year. (Art. 9, § 31(b)).
`Massachusetts General Laws
Ecren~ptions
$125 of wages for labor performed or services rendered during each
week is exempt from attachment under the trustee process. (§ 246-28).
Before ~udg~ment
Trustee process involving wages is available only in actions brought
upon a judgment and is authorized in advance by a justice of the court
in which the action is commenced. (§ 246-32 (8)).
Public officers and employees
Towns, cities, and counties are liable to be summoned `as trustees.
(Adams v. Tyler, 121 Mass. 380, (1876)). The Commonwealth, in the
absence of statutory authority, cannot be summoned as a trustee. (Mac-
Quarrie v. Balch, 1972 Mass. Adv. Sh. 1225, 285 N.E. 2d. 103).
Service of process
Statute declares only that trustee writs shall be served on each
trustee. (~ 246-5).
Time to answer
Within 20 days of service of the trustee summons. (Mass. Rule of
Civ. Proc., Rule 4.2).
PAGENO="0037"
29
Ea,aqni~ation of garnishee
Plaintiff may. from time to time. examine trustee upon written inter-
rogatories. (~ 246-12). An answer may be controverted and the issues
raised tried by the court. (~ 24(3-17).
Puitu on iail?ue to answer
A trustee who ne~leets to appear and answer shall be defaulted and
adjud~ecl a trustee.&7~ 246-is). He is liable for the full amount of the
iudgment in the suit. plus interest thereon, if he willfully falsifies his
answers. (~246-i9).
Eject of writ
Writ attaches only to money which is unconditionally due. (Benison
v. flThig7~t, 21 ~1ass. App. Dec. 68, (1961)).
Discharge of employee
No statutory provislon.
Michigan Compiled Laws
Exempt
(a) First gaiiu~shment of a householder having a family.-The basic
exemption is 60 percent of wages, with the following limitations: (1)
it the labor extends over a period of 1 week or less; the maximum ex-
emptIon is $50 and the. minimum is 530; (2) if the labor extends over a
period greater than 1 week, the niaximurn exemption is $90 and the
minimum is S60.
(b) ~S~u equent garni.slunents of~ a householder with a family.-The
exemption is to the amount of 60 percent of the indebtedness, but: (1)
if the labor extends over a period pf 1 week or less, the maximum ex-
e:~ptio~~ is $~0 and the minimum is 812; (2) if the labor extends over
a period greater than 1 week but iiot exceeding 16 days, the maximum
exemption is $60 and the minimum is $124; (3) if the labor extends
over a period in excess of 16 days, the maximum exemption is $60 and
the minimum is $30.
(c) First garnishment of an eni~~loyee who is not a householder with
a family.-The basic exemption is 40 percent with a maximum exemp-
non of ~50 and a minimum of S20.
(d) ~Subsequent garnishments of an employee who is not a house-
holder with a family.-The basic Oxemption is 30 percent with a maxi-
mum exemption of $20 and a minimum of $10. (~ 600.4031, 7267,
7511).
iSupport ordevs.-In addition to above exemptions, such sums as are
required to comply with court orders for alimony and child support is
exempted. (~ 600.7511(4)).
Be fore judgment
A plaintiff's claim must be reduced to judgment before garnishment
of wages for labor performed may issue. (~ 600.4011(b) (3)).
P?157k officers and employees
Under Michigan case law, coi+ipensation of State officers or em-
ployees may not be garnished. (Auditor General v. lVayne Circuit
Judge, 234 Mich. 540, 208 N.W. (396). No execution may issue against
any township, village, city, the trustees or common council, or the offi-
cers thereof any corporate body or unincorporated board having
PAGENO="0038"
30
charge or control of any State institution, any school district, any
county of the board of supervisors or any county officer. (~ 600.6021).
27im~ to answer
in court of record, garnishee must file answer within 15 days after
service. (Rule 738.3). In justice court, summons involving wages is
Teturnable in not less than~ 5 nor more than 9 days, except that in
counties with a population greater than 2 million, the summons shall
be returned in not less than 9 nor more than 15 days. (~ 600.7509).
Eccarn~nation of garnishee
Plaintiff, unsatisfied with garnishee's answer, may serve written in-
terrogatories or demand oral examination of garnishee. (Rule 738.8).
In justice court, the garnishee is required to appear before the justice
on the return day. (§ 600.7517).
Penalty on failure to answer
A default may be taken as in other civil actions (Rule 738.8). In
justice court, garnishee is liable to arrest. (§ 600.7515).
Effect of writ
Attaches wages earned and due on the next date when payment is
regularly made. (~ 600.7511).
Discharge of employee
* Prohibited with respect to justice court garnishments. (~ 600.7585).
Minnesota Statutes
Exenip tzons
Seventy-five percent of disposable earnings for any period, or an
amount equal to eight times the number of business days and paid
holidays, not to exceed five per calendar week, in the pay period times
the Federal minimum hourly wage, whichever is greater. (§ 550.3~
(13), 571.55).
Before judgment
In specified instances, a garnishment before judgment is permitted.
(~ 571-41(2)).
Public officers and employees
Salary or wages of any official or employee of a county, town, city,
village, or school district, or any department thereof is subject to
garnishment. (§ 571.45).
Money due or owing any person or corporation by the State on
account of any employment, work, or contract with the commissioner
of highways is liable to garnishment. (~ 571.46).
Service of process
On the auditor, treasurer or clerk of the bodies specified in § 571.45.
In other cases, service on such bodies shall be made upon the officer in
whose office, or the head of the department in which, or the presid-
ing officer of the body by which such person is employed. (~ 571.45).
LTnder § 571.46, service may be made by registered mail on the com-
missioner of highways.
PAGENO="0039"
31
Time to answer
Within 20 clays (12 days in jtistice court) after service thereof.
(~ 571.47, 571.48).
Ecaimination of garnishee
Either before or after written disclosure by answer to interrogatorieS
submitted by a plamtifl, any party to the garnishment proceechng
may obtain an cx parte order requiring oral disclosure. (~ 571.47,
~TL5').
~; 71r~/ on 7" lure to ansuel'
.Tud~ment may be rendered against a defaulting garnishee for an
a :uount not. exceeding the jiiclgment creditor's judgment against the
judgment debtor or 110 percent of the amount claimed in the garnishee
summons. whichever is smaller. (~ 571.53).
EyFec~ 07 w1t
Binds all disposable earnings e~irnecl or to be earned within that one
~ period. (~ sso.37(13), 571.42(2)).
~;.~i~-~ae of employee
Prrdiiblted unless theie have been more than three garnishments
within a 90 day period involving more than one mclebtedness,
Mississippi Code
E.~~mptions
Seventy-five percent of a resident's wages, salary or other corn-
peilsation, due or to become due. (~ 85-3-1).
Ee7'o~'e judgment
Authorized in aid of attachment (~ 11-35-3) but is apparently
ainhorizecl only after judgment to bind wages of public officers and
employees. (~ 11-35-1).
Public officers and employees
Garnishment provisions apply to any person, either natural or
artificial, including the State, any county, municipality, school dis-
trict, board or other political subdivision thereof. (~ 11-35-1).
~S'ercice of process
a) In case of garnishment against any employee of a State depart-
main. agency. board. commissionS institution or other authority, the
writ shall be served upon the department. head. president of the insti-
tur:on or chairman or other presiding officer thereof.
(b) The writ shall be served on the State auditor in case of a gar-
nishment against a State oflicer, departmental head, president of an
institution, director of a board or other head of any other agency or
commission of the State.
(c) The writ shall be served on the State treasurer in case of a
garnishment against the State auditor. The writ shall also be served
on the State treasurer in case of a garnishment against one of his
employees.
PAGENO="0040"
32
(d) The writ shall be served on the clerk of the county chancery
court in case of a garnishment against a salaried officer or employee
of a county.
(e) The writ shall be served on the county sheriff in case of a
garnishment against the clerk of the chancery court.
(f) The writ shall be served on the superintendent of the school
district in case of a garnishment against a salaried officer or employee
of a county or separate municipal school district.
(g) In case of garnishments against the school district superin-
tendent, the writ shall be served on the president of the board of
education or board of trustees.
(h) Garnishments against officers or employees of a municipality
shall be served on the city, town or village clerk. (§ 11-35-41).
Time to answer
Answers in the circuit or chancery courts ar~ due on the first day
of the return term; in the justice of the peace court, the answer is
due by noon on the return day of the writ. (~ 11-35-27).
Eceamination 0/' garnishee
Garnishee required to submit written answers under oath. (~ 11-
35-25). Garnishee's answer may be contested by the plaintiff. (~ 11-
35-45, 85-3-1), issues thereby raised are triable by the court. (~ 11-
35-45).
Penalty on failure to answer
if the plaintiff prevails in a contest of garnishee's answer, judgment
may be rendered against the garnishee for such amount as would
have been subject to the order of condemnation had the said sum not
been released to the defendant. (§ 85-3-1). On simple failure to
answer, judgment for the amount of the plaintiff may be entered.
(~ 11-35-1).
Judgment shall not be rendered against the State, county, munici-
pality, State institution, board, commission or authority for default
in failing to answer a writ of garnishment. (§ 11-35-13).
A sum of $25 may be recovered by a plaintiff from any person
failing to answer a writ of garnishment served upon him in his
representative capacity under the provisions of § 11-35--~i1 above.
(~ 11-35-19).
Effect of writ
Attaches wages on a continuing lien basis until the amount shown
as due is equalled. (~ 85-3-1).
Discharqe of employee
No statutory provision.
Missouri Statutes
Exemption
The greater of: (a) 75 percent of workweek earnings, after deduc-
tions required by law to be withheld; (b) an amount each week equal
to 30 times the Federal minimum hourly wage, or (c) if the employee
is a resident head of a family, 90 percent of such earnings after
deductions required by law.
PAGENO="0041"
33
Supvort orc?ers.-RestrictionS due not apply in the case of any order
of an~ court for the support of ally person. (~ 452.140, 525.030(2)).
Bcfoie de'mcnt
Available in aid of an attachthent before judgment (~ 525.010),
but sequestration of a public officers or employees salary may be made
ontv after a judgment. (~ 528.310).
Public officers and employees
Permitted (~ 525.030, 310).
Sect ice of process
TJ~pon the treasurer or the clisbursiiig or auditing officer of the State
or po1~tical subdivision charged with the duty of payment or audit
of the salar. wages. fees or earnings of an officer, employee, or
appointee of the State or political subdivision. (~ 525.310).
to answer
The return date of a summons to a garnishee is the return date of
the execution. (Missouri Rules of Civil Procedure, Rule 90.02).
Answer to interrogatories filed by a plaintiff is due within 10 days
after service thereof. (Missouri Rules of Civil Procedure, Rule 90.13).
In magistrate courts, time to answer, by appearance before the
magistrate. is specified in the writ, but may not be more than 90 days
from the date of service of t.he writ. (~ 525.320).
Em.cuitwn. 01 (J~i? slice
* The garnishee may be examined oii written interrogatories sub-
mitted by the plajiitifi. (~ 525.130).
In magistrate courts, garnishee. may file written answer to statutory
interrogatories, under oath, or the magistrate may, at his request,
write, the answer of the garnishee to each interrogatory separately
and file the answer as a paper in the cause. (~ 525.330).
Penalty of failure to answer
The plaintiff may take judgment by default against the garnishee,
or the court, on motion. may compel him to answer by attachment
of his both-. (~ 525.140). The sa~me procedure applies in magistrate
courts. (~ 525.360). The p'aintiff may deny the garnishee's answer
and issues thereby raised are tO be tried by the court. (~ 525.190).
Effect of writ
Writ attaches to all earnings due on date of service, or which may
become due between that time and tile time of filing his answer.
(~ 525.040).
D iscl~ arae of employee
Prohibited (~ 325.030(3)).
Moiitana Code
Eceemptions
One hundred percent of earnings for personal services r~ndered at
any time within 45 days next preceding the levy of execution. or at-
tachment when it appea.rs, by debtor's affidavit or otherwise, that such
earnings are necessary for the use of his family, supported in whole
or in Part b~ his labor.
PAGENO="0042"
34
A 50 percent exemption applies if the obligation was incurred for
gasoline or the common necessaries of life. (~ 93-5816).
Before judgment
In gei~eral, garnishments are in all respects subject to the same
statutes as attachments and are available at the time of issuing the
summons, or at any time afterward. (~ 93-4301, 4314).
Public officers and employees
Attachment or garnishment of money, credits or property in the
possession or under the control of any public officer of a political sub-
division, or State board or State government, is permitted. (§ 93-4341).
Service of process
The writ is to be served upon the clerk of the county or chairman
of the board of county commissioners, the city clerk or mayor of a
municipal corporation, or upon the clerk of the board of school trustees
or chairman of such board, as the case may be. (~ 93-4341).
Time to answer
No specific time specified by statutes which state, only, that upon
application of the officer serving an attachment, the garnishee must
furnish such levying officer a statement of the property of the de-
fendant held by the garnishee. (~ 93-4310).
Examination of garnishee
Upon a refusal to give the. required certificate, or if there is reason
to believe the certificate submitted is untrue or incomplete, the court
may order a garnishee to appear at a specified.piace. and time for an
examination under oath by a judge or referee. (~ 93-4311). Garnishees
may also be required to appear in court or before a judge or referee
to answer as to his indebtedness to the defendant. (~ 93-4315).
Penalty on failure to answer
No statutory provision.
Effect of w~it
Attaches to credits due at time of service (§ 93-4314)..
Discharge of employee
Prohibited (~ 41-305.1).
Nebraska Statutes
Exemptions
Greater of: (a) 75 percent of workweek's disposable earnings, or
(b) the amount each week equal to 30 times the Federal minimum
hourly wage, or (c) 85 percent of disposable earnings for workweek if
the wage earner is a head of a family. Multiples of the minimum wage
apply for pay periods longer than one week. (~ 25-1558).
Support orders.-Exemptions inapplicable to support orders. (§ 25-
1558).
Before judgment
Wages may be garnished by an order for attachment. (~ 25-1002,.
1010).
PAGENO="0043"
35
Public officers and employees
Garnishment provisions apply to all State, county, municipal, mu-
r~icipally owned corporations, townships and school district officers
and employees. (~ 25-1012).
~S'errice of process
Made upon the officer whose di1ty it is to issue warrants for the
payment of the officer or employee whose earnings are sought to be
held. (~ 2.5-1013).
Time to answer
Within 10 days of issuance of summons to garnishee to answer inter-
rogatories. (~ 2.5-1010).
Er~'minatiom of garnishee
By interrogatories submitted by plaintiff. (~ 25-1010).
A garnishment summons served oii a disbursing officer of the State
or a poIttleal subdivision may be answered by him in writing by mail,
or he may appear in person before the court, or file his written answer
to the summons. In no case shall he be required to appear in person.
(~ 2.5-1013).
Pena7t?/ on fail~ire to answer
Garnishee is presumed to be indebted to the defendant to the full
amount of the plaintiff's claim, and upon notice as directed by the
court. judgment may be entered against him. (~ 25-1028).
EU'ect of writ
A garnishee summons binds wages under the control of the em-
ployer at the time of the service of the summons. (~ 25-1010). An
order of attachment binds the wages in the employer's hands from the
time of service. (~ 25-101~). Garnishment of State or political sub-
division binds wages due between date of service and answer day.
(~ 25-1013).
Discharge of employee
Discharge for garnishment for any oiie indebtness prohibited. (~ 22-
1558).
Nevada Revised Statutes
E~eemptions
The greater of: (1) 75 percent of disposable earnings for relevant
pay period, or (2) the amount by which his disposable earnings for
each week of that pay period exceed 30 times the Federal minimum
hourly wage.
Support orders.-The above restrictions do not apply to any court
order for the support of any person. (~ 21.090, 31.295).
Before ~udgm~n.t
A writ of garnishment may he issued at the time of the order direct-
ing a writ, of attachment to issue. (~ 31.240; 249)..
Public officers a~d employees
Fees and salaries of all officers and employees of the State, county~
city, town, township or school district are subject to attachment and
PAGENO="0044"
36
execution for all debts and liabilities created or incurred by such
officials or other persons. (~ 281.130).
Service of process
Service is upon the appropriate auditor, treasurer or disbursing
officer. (~ 281.130).
Time to answer
Within 20 days of the date of service of the writ. (~ 31.260).
Examination of garnishee
Garnishee required to answer written interrogatories under oath.
(§ 31.290). The plaintiff may traverse a garnishee's answer and new
matters raised thereby shall be tried by the court. ~ 31.330, 340).
Penalty on failure to answer
Judgment may be entered in favor of the defendant for the use of
plaintiff against the garnishee for the value of the property or amount
of money specified in the writ of garnishment. (~ 31.260, 320).
Effect of writ
Attaches to wages earned as of the time of service, whether due or
or not. (~ 31.290).
Discharge of employee
No statutory provision.
New Hampshire Revised Statutes
Exemptions
Wages for labors performed after service of the writ on the trustee
are exempt from the trustee process. Wages for services performed
before service of the writ on the trustee are exempt except in actions
founded upon a debt on a judgment issued by a State court; in such case,
wages earned, before service of the writ, to the amount of 50 times
the minimum hourly wage shall be exempt. (~ 512.21 (1), (2)).
Before judgment
Wages of an employee may be reached by an attachment of wages
by trustee process before or after judgment. (~ 512.1).
Public officers and employees
Salary and wages of officials and employees of the State, county,
city, town or school district are subject to the trustee process.
(~ 512.9, 9-a).
Service of process
Process served upon the State treasurer or treasurer of the county,
city, town or school district. (~ 512.9, 9-a).
Tinw to answer
At any time after service of the writ, a trustee's disclosure may be
given or taken by any party after giving the same notice to the adverse
party as is required in taking depositions. (~ 512.12). Superior Court
rules respecting the taking of depositions deems 20 days notice as being
reasonable. (Rules of the Superior Court, Rule 30). Depositions are
submitted at the term next after the trustee's deposition is taken
(~ 512.16).
PAGENO="0045"
37
Eaam~nat'ic n of ganiisliee
The writ requires the trustee to appear in court and show cause, if
any, why execution should not issue against him for the judgment
which may be recovered by the plaintiff. (~ 509.18). Examination may
also be had under the deposition process set out above, (~ 512.13), and a
trial of any issues raised by the deposition may be had on the motion or
either party to the suit before a decision of the court. (~ 512.18)
o;~ i'a~7uic to a;~.swei
A trustee may be charged on default after a refusal to answer
upon such notice as the co~uI't may order. (~ 512.10). If a. trustee again
defaults after such notice, he may ha held chargeable for the amount
of the judgment recovered by the plaintiff. (~ 512.11). If upon dep~
ositions or trial by jury. and verdict thereof, it appears that the
trustee had in his possession at the time of the service of the writ
upon him. or at. any time thereafter, any money, goods, chattels, rights
or credits of the defendant, not exempted from the trustee process, the
trustee must. be adjudged chargeable therefor. (~ 512.20).
Effcet of ~c~it
Attaches only to wages owin~ at the time of the writ's service.
(~512.21).
Di.se1~aige of c'mployee
No statutory provision.
Kew Jersey Statutes
Ea~en?p~ion
A. minimuln wage exemption of $4S per week applies. If the wages,
debts, earnings, salary~ trust fund income or profits due and owing to.
a judgment debtor do not exceed $7,500 per annum, the amount spec-
ifieci in any execution issued out of any court shall not exceed 10 per--
cent thereof. If such income exceeds $7,500 per annum, the court may
order a larger percentage. (~ 2A: 17-52, 17-53, 17-57).
~uppoi't oicier.s.-In case of multiple executions against such in-
come, executions pursuant to court orders for maintenance and support
of a wife and children shall be first satisfied. (~ 2A: 17-52).
Before judgment
Wages may be reached by attachment or execution, attachments
may be issued before judgment in specified instances. (~ 2a: 26-2).
An execution may issue only when a judgment has been recovered~
(~ 2A: 17-50).
Pvbiic officeis and employees
Wages of State and public employees may be levied against by ex~
ecution. (~ 2A: 17-53).
Service of process.
May be made upon any person, agent, treasurer or other fiduciary
officer of a private or public municipal corporation, including th~
county, the State, or other governmental agency. (~ 2A: 17-53).
Time to answer
The peison to whom an execution is presented is required to pay
over to the officer presenting the, same, such amount of such indebt-
PAGENO="0046"
38
eciness as such execution shall prescribe, until such execution shall be
wholly satisfied. (§ 2k: 17-53).
Examination of garnisl&ee
No statutory provision.
Penalty on failure to answer
Failure or refusal to make payments required by § 2k: 1-53 shall
render such person, agent or officer so failing liable to an action there-
for by the judgment creditor named in the execution.
Effect of writ
A continuing lien and levy upon the wages, debts, earnings, salary,
frust fund income or profits due or to become due to such judgment
debtor to the a1nount specified therein. (~ 2k: 17-51).
Discharge of employee
No statutory provision.
New Mexico Statutes
Exemptions
The gTeater of: (1) 75 percent of defendant's disposable earnings
for any pay period, or (2) an amount each week equal to 40 times the
Federal minimum hourly wage. Equivalent exemptions to be pre-
scribed for pay periods other than one week. (~ 36-14-7).
Before judgment
Permitted on specified groirnds. (~ 36-14-1), but prejudgment gar-
nishment does not attach wages or salary due defendant from gar-
nishee. (~ 36-14-3(B)).
Public officers and employees
Wages and salaries due public officials and employees of the State
or its political subdivision are subject to garnishment only after a
judgment has been obtained by the plaintiff. (~ 36-14-8).
~Service of process
In garnishment actions involving State officials and employees,
service shall be made upon the department of finance and admiñis-
tration, on the attorney general, and on the head of the branch, agency,
bureau, department, commission or institution. ((~ 5-6-22) (G)).
Time to answer
Within 20 days of the service of the writ. (~ 36-14-2).
Examination of garnishee
Answer of public officer of the State or its political subdivisions
shall be by statement over his official signature and filed in the action
without cost. (~ 36-14-8). Statute requires other garnishees to appear
before the magistrate court and file their answers, under oath, to in-
terrogatories stated on the writ. (~ 36-14-2. 36-14-15). Answers may
be controverted and issues thereby raised may be tried by the magis-
trate court. (§ 36-14-5).
Penalty on failure to answer
Failure to answer under oath within 20 days may result in a judg-
ment against garnishee for the full amount of a plaintiff's judgment,
together with interest and costs. (~ 36-14-4(B)).
PAGENO="0047"
39
Effect of writ
The writ is a continuing lien and levy upon the judgment debtor's
wages and salary until the judgment is paid or his employn~ent is
terminated. (~ 36-14-7.2).
~D~cJvu'ge ol' employee
Yo statutory provision.
New York Consolidated Laws
E~cemvtioi~s
* TThder income execution procedure. 90 percent of earnings for serv-
ew:tiiln 00 days before. and at~ anytime after, an income execution
*~eiivered to the sheriff or a motion is made to secure the application
of the judgment debtor's earnings to the satisfaction of the judgment,
is exempt. The exemption may be reduced by such amount as the court
u~ay determine to be unnecessary for the reasonable requirements of
the judgment. debtor and his dependents. Earnings of $85 per week
cr ]ess are entirely exempt. (Civil Practice Law and Rules, §~ 5205,
*~` up port orclers.-Court determines amount necessary for support of
sr~ouse and children and may ord~r an employer to deduct such amount
~io:n an employees wages. salary and commissions, and forward such
a~aoimt nmonrhlv to the court as directed in the order. (Personal Prop-
ertv law ~ 40-b).
LI:TO1e ~udcnmei2t
Income executions are available in satisfaction of judgments. (Civil.
Practice Law and Rules, ~ 52.31). Wages may be reached before judg-
~uent by the attachment nrocess. (Jiorris Plan Industrial Bank v.
(r i ~i~?i~g 20~ ~ Y o24 61 NE 2d 510, (1Q46))
Public officers and em~ployees
`Wages and salaries of state and political subdivision officers and
employees is subject to income executions. (Civil Practice Law and
Rules. ~ 5231 (f)).
-~cvcce of process
A levy upon money payable directly by a department of the State,
or by an institution under its jurisdiction, shall be made by serving
the income execution on the head of the department, or an officer desig-
i~ated by him. at the office of the department in Albany. A levy upon
trioney payable directly upon the State comptroller's warrant,. or
directly by a State board. commission, body or agency which is not
within any department of the State shall be made by serving the income
execution upon the Sta.te department of audit and control at its office
~n Albany. Service on municipal or public benefit corporations or
~ of education are apl)ar~nt.ly made by leaving a copy of the
income execution with an executive officer or person whose duties are
of snificient. importance to make it reasonably probable that process
will be brought to the attention of the corporation or board. (Civil
Practice Law and Rules, § 5231 (f)).
Time to answer
Written interrogatories may be served upon an employer pursuant
-~c a. subpoena and are returnable within 7 days of their receipt or serv-
PAGENO="0048"
4Q
ice. Procedure: the income execution is served upon an employer by
the sheriff who is then required to make a return of service within 60
days. Service of the income execution subjects the judgment debtor's
nonexempt income to a lien and requires the employer to withhold
such nonexempt income of the judgment debtor and pay the same over
to the sheriff who in turn shall, from time to time, and at least once
every six months, account for and pay all installments of monies col-
lected under the execution to the person entitled thereto. (Civil Prac-
tice Law and Rules, §~ 5224, 5231 (f), (i)).
Examination of garnishee
A judgment creditor may subpoena any person to compel disclosure
of matters relevant to the satisfaction of their judgment. The subpoena
may be accompanied by written interrogatories or it may require the
person to attend at an oral deposition. (Civil Practice Law and Rules,
§~5223, 5224).
Penalty on failure to answer
A person renders himself liable to the judgment creditor for the
accrued installments upon a failure to pay such installments to the
sheriff. (Civil Practice Law and Procedures, § 5231).
Effect of writ
The income execution is a continuing levy on the judgment debtor's
salary or wages. (Civil Practice Law and Procedure, § 5231).
Discharge of employee
No employer shall discharge or lay off an employee because one or
more income executions have been served upon such employer against
the employee's wages. (Civil Practice Law and Rules,. § 5252).
North Carolina General Statutes
Exemptions
One hundred percent of a debtor's earnings for personal services
rendered at any time within 60 days next preceding the order of execu-
tion when it appears, by affidavit or otherwise, that such earnings are
necessary for the use of a family supported wholly or partially by his
labor. (§ 1-362).
Before judgment
Garnishment is not an independent action but is a proceeding ancil-
lary to attachment. (§ 1-440.21). A summons to a garnishee may be
issued: (1) at the time of the issuance of the original order of attach-
mnent, or (2) at any time thereafter prior to judgment in the principal
action. (~ 1-440.22), and is available in actions for alimony, or main-
tenance and support. (~ 1-440.2).
Public officers and employees
For reasons of public policy, the salaries of officers a.nd the pay of
employees of the State cannot be reached by creditors by proceedings
supplementary to execution. (Swepson v. Turner, 76 N.C. 115 (1877) )
Service of process
Personal service on garnishee required. (~ 1-440.22).
PAGENO="0049"
41
Time to answer
Within 20 days of service. (~ 1.440.23).
Ereamination of garnishee
interrogatories are incorporated in the garishment summons..
(§ 1-440.23). Additionally, a plaintiff may challenge a garnishee's
answer and the issues thereby raised are triable by a court or jury~
~ ~-440.31).
Penalty on fdlu.re to answer
A conditional judgment for the full amount of the plaintiff's claim,
plus costs. may be entered. A conditional judgment may be made final
upon a~ continued failure to appear. (~ 1-440.27).
Effect of `writ
Attachment reaches wages owing at and from the time of service of
the summons until the employer makes his answer. (~ 1-440.28 (a) (1)).
Di~sc7~arge of employee
No statutory provisions.
North Dakota Century Code
Eaem.ptio'n.s
The greater of: (a) 75 percent of disposable earnings for workweek,
or (b) an amount equal to 40 times the Federal minimum hourly wage.
Equivalent, multiples as prescribed by the Secretary of Labor apply
in cases of pay periods other than a week. (~ 32-09-02(2)).
1S'upport ordem's.-The above exemptions are inapplicable to any
order of any court for the support of any person. (~ 32-09-02(3) (a))..
tpon affidavit, of need for the support of a family, 100 percent of earn-
ings for personal services rendered within 60 days of order may be
exempted by the court. (~ 28-25-11).
Before judgment
Prejudgment garnishment may be issued at any time before final
judgment in any action to recover damages founded upon contract,.
express or implied, or upon a judgment or decree. (~ 32-09-06).
Public officers and employees
Garnishment is available against any person, any public corpora-~
tion, the State, or any institution,: department, or agency of the State..
(~ 32-09-01).
Service of process
Service is made upon the dire~tor of the department of accounts;
ancL purchases. (~ 32-09-05).
Time to an~wer
An affidavit denying indebtedness or an answer to the garnishment-
summons must be filed within 20 days of service of the summons..
(~ 32-09-01, 14).
E~vamn-i nation of garnisl?ee
B affidavit concerning his liability to the defendant (~ 32-09-15)-
and such answer is conclusive unkss controverted by the plaintiff, in~
~-~e the issues thereby raised shall be tried by the court.
(~ :~4~_p~)
PAGENO="0050"
42
Penalty on failure to answer
The court may render judgment against the garnishee for the
amount of the judgment which the plaintiff shall recover against the
defendant in the action for damages and costs, together with the costs
of such garnishment action. (~ 32-09-16).
Effect of writ
Attaches earnings from the time of service of the demand for the
employees disposable earnings and for five days thereafter.
(~ 32-09-03).
Di-scitarge of employee
No statutory provision.
Ohio Revised Code
Exemptions
A debtor's earnings owed for services rendered within 30 days be-
fore attachment, process, judgment or order is exempt to the extent of
the greater of: (1) if paid weekly, 30 times the current federal mini-
mum hourly wage; if paid biweekly, 60 times the current Federal
minimum hourly wage; if paid semi-monthly, 65 times the current
Federal minimum hourhy wage; or if paid monthly, 130 times the cur-
rent Federal minimum hourly wage in effect at the time the earnings
ere payable; or (2) 75 percent of the disposable earnings due the
debtor. (~ 2329.62, 66).
Support orciers.-Limitations do not apply to support orders. Em-
ployers must wjtltholcl the amount ordered by the court for the
support of the wage earner's minor children. (~ 3113.21).
Before judgment
Attachments against the personal earnings of defendant, through
an action in garnishment, may be granted only after a judgment has
been obtained by the plaintiff. (§ 2715.01). A demand for payment is
prerequisite to issue of garnishment summons. (~ 2715.02).
Public officer.s and employees
State subject to garnishment process with respect to its officers and
employees. ( § 115.46).
Service of process
On State auditor (~ 115.46).
Time to answer
Garnishee required to appear and answer within the time allowed
the defendant to answer the petition upon which the attachment was
granted. (~ 2715.29).
Exan?iration of garnishee
In the case of garnishments issued by the court of common pleas,
the garnishee shall make his answer before the clerk of the court and
a special examination of the garnishee shall be had. (~ 2715.13). In
municipal or county court, garnishee appears at Court and answers
questions put to him respecting credits and debts owed by him to the
defendant. (~1911.35).
PAGENO="0051"
43.
PcnaZt~,i on fai~ure to c~n.swer
(hi failure to appear and answ~er, the plamtiff may proceed against
rhe garnishee by civil action wherein judgment may be rendered in
:avnr of the plaintiff for the amount of the property and credits of
~e defendant in the possession of the garnishee, and for what appears
To he owin~ by him to the. defendant. and for the costs of the
~ ~eedings against such garnishee. (~ 1911.44, 2715-33).
E~~L of vi~t
hinds garnishee for all property of the defendant held by hini, all
a:~oanrs th:e the defendant from the garnishee from the time of the
s~:~hee of the order. and pe~'sonal earnings owed the defendant for
- iencelect 1 e~oie s~u ice of the notice (~ 1911 35, 2715 19,
~7L~ h'~ai~e of e7i~p7o?/ee
Idscharge for any one garnishment of personal earnings in any
twelve-month period is pio~nbjtecl. (~ 2715.01).
Oklahoma Statutes
Pe~iJent homeowner and head of family, 75 percent of wages or
for professional or pei~sonal services earned during last 90
is exempt. (~ 31-1-1). Seventy-five percent of wages of resident
reinfamily head ~s exempt. (~ 31-1-4).
.~7~port oicZ(els.-One hundred percent of earnings for services per-
formed within .90 days before issuance of execution is exempt if the
same is necessary for the maintenance of a family wholly or partially
.surr;orted by the defendant's labor (~ 31-1.1). Does not apply to orders
for child support. (~ 31-1.1(1)).
Consumer Credit Code.-Exempts the greater of: (a) 75 percent of
disposable earnings for that workweek, or (h) an amount each week
equal to 30 times the Federal minimum hourly wage. For pay periods
orhnr thaii a week. the. Achninist~ator shall prescribe a. multiple of the
F~Jeia1 minimum hourly wa~e ec!uivalent in effect to that set forth in
~iragraph (b) ~ 14X-3-10;3 (2)).
~ 5udqment
Garnishment may issue at oi~ after issuance of the summons and
before judgment. ~ 12-1172). Prejudgment garnishment of wages,
however, is prohibited under the general garnishment provisions and
under the. Consumer Credit Code. (~ 12-1171.1; §14A-5-104). A hear-
tug is a. prerequisite to prejudgment garnishments. (~ 2-1172.1)
Public officers and emplo?/ees .
Garnishment proceedings may be initiated against State, county,
town. school, board. board~ of education, or any municipal sub-
dh:ision officer or employee. (~ 12-1191).
~ ;e of piocess
\Vhen the State is garnished, process shall be served upon the officer
having control of the department or institution which Causedi the State
to become indebted to the defendant. If such department is under the
conirol of a board or commissioh, service may be had upon either the
chairman or secretary of such board or commission.
PAGENO="0052"
44
Service on an officer having control of' a State institution shall be
had upon the president of the school, college or university, the super-
intendent of the institution or the warden of the penitentiary or re-
formatory involved.
Service on the State Auditor shall be made when a State officer not
under the~ control of a State Department or Institution is the
defendant.
Service shall be made on the clerk of a county, city, town, township,
school board or board of education in garnishments affecting officers
and employees of such bodies. (§ 12-1193).
Time to answer
Within 10 days from date of service (~ 12-1194).
Examination of garnishee
A garnishee may be examined by deposition or written interroga-
tories at any time after he files his answer. (~ 12-1183). A plaintiff
may also elect to take issue on a garnishee's answer, in which case the
issue shall stand for trial. (~ 12-1177). Garnishee may answer by affi-
davit. (~ 12-1178).
Penalty on failure to answer
Judgment may be rendered against him for the amount of the judg-
ment which the plaintiff shall recover against the defendant, plus costs,
together with the costs of such garnishment. (~ 12-1179). No judg-
ment, however, shall be rendered against the State, or any county, city,
town, board of education, school board, or any municipal subdivision
of the Statenamed as garnishee, but judgment may be rendered against
any person served as provided under § 12-1193 above (i.e. the State
offices, city, county, town, or township clerk, etc.). (~ 12-1194).
Effect of writ
Attaches to wages, salaries, bonus, aiid commission owing on the date
of service. (~ 12-1173).
Discharge of employee
Discharge because of garnishment or like proceeding brought for
purpose of paymg a judgment arising out of a consumer credit trans-
action is prohibited unless such action is brought on more than two
occasions within one year. (~ 14k: 5.106, 5.202).
Oregon Revised Statutes
Exemp tion.s
The greater of: (1) seventy-five percent of disposable earnings
for a workweek~ or (2) the amount by which his disposable earn-
ings for that week exceed 30 times the Federal minimum hourly
wage. (~23.185(1) (a), (b)).
Support orders.-Exemptions do not apply to court orders for the
support of any person, including an award for attorneys fees or costs.
(~23.185(2) (a)).
Before judgment
Prejudgment attachment and garnishment authorized on stated
grounds (~ 29.110) and upon a hearing into the grounds alleged in the
affidavit for a garnishment before judgment. (~ 29.025, .065).
PAGENO="0053"
45
Public officers and e2mployees
Salary. wages, credits, or other personal property in possession or
control of the State or of any cotuity, city, school district or other
poiitical subdivisicn. or any board. institution, commission, or officer
of the same. is subject to garnishthent. (~ 23.190).
~ of piocess
Process served on the board. department. institution, commission,
agency, or officer charged with the duty of approving a voucher or
claim for such salary, wages, credits, or other public pioperty. (~ 23.
190).
~ ~
1Vith~n 5 days of service when service macic in the county in which
the action is pending: 10 days when service is made in any other
ccuntv. (~i
L;~crii~ :i~~:o;'~. of gar2usl?ee
Garnishee may be examined by written interrogatories or before
the court. on oath, if lie fails to respond to the writ, or provides an
unsatisfactory response thereto. (~ 29.280. .310)~ An answer may be
controverted and the issues tried by the Court. (~ 29.340).
Pen al~y on failure fo answer
Judament may be entered a~ainst garnishee for an amount not
greate~ than the ~udgrnent again~t plain~fiff. (~ 29.330).
E~~ct 07 uru~
Attaches to credits due at time of service. (~ 29.280).
Disc7~cirge of employee
Discharge because earnings have been garnished is prohibited. (~ 23.
Pennsylvania Statutes
Exemptions
One hundred percent of all wages (§ 42-886).
Support orclers.-Exemptions do not apply to orders for support of
wife and children. (~ 48-136).
Before 5uckiment
Attachment. of wages for a duty of support presupposes a court order
requiring payments.
The procedure for enforcing court orders for support is set out at
§ 62: 2043.39 of the Code, and states as follows:
§ 2043.39 Enforcement of orders of the court
(a) The court, upon receiving information, either through writ-
ten application or at any hearing, that there is failure to comply
with the order of the court, may issue attachment proceedings,
directed to the sheriff or other proper officer of the county, direct-
ing that the person named be brought before the court at such time
as the court may direct which in counties of the first class shall be
within forty-eight (48) hours or two court working days, which-
ever is the longer from the time the person is taken in custody of
law pursuant to the attachment.
PAGENO="0054"
46
(b) Any willful failure to comply with any order of the court
may be deemed a contempt of court and except in counties of the
first class may be punishable by the court by commitment to the
county jail or house of correction. In counties of the first class,
any person who is found, after hearing, to have willfully failed to
comply with any order of the court may be adjudged in contempt
of court and may be pimished by the court by commitment to the
county jail or house of correction until compliance with said order..
* but in' no case for a. period exceeding six (6) months, and the court
* in its order shall state the conclitioii which upon fulfillment will'
* result in the release of such person.
(c) The wages, salary or commissions of any person owing a
* duty, of support may be attached in the following manner:
(1) A certified copy of the order of support shall be served'.
on the employer, whether a corporation, political subdivision..
association, company, firm or individual, and may be served
by registered mail or by any adult person or by any other'
manner provided by law.
(2) Such certified copy of the order shall contain an order'
directing the employer to make a full answer, within ten
(10) days after services of the order, of the amount of wages,
* salary or commissions of the defendant, and further directing*
the employer to make no payment to the defendant over 50
percent of the amount due him until further order of the'
court.
(3) The court shall determine the amount of the wages,.
salary or commissions which shall be regularly paid by the
employer to the Domestic Relations Division and shall so'
notify said employer.
(4) Thereafter, it shall be the duty of the employer to pay'
such amount regularly to the Domestic Relations Division,
and upon failure so to pay shall be in contempt and subject to
the court's order as now provided in proceedings against de-
fendant. The employer is authorized to deduct 2 percent of
`the amount paid under the order from the wages of the de-
fendant for clerical work and expense involved in complying'
therewith.
(5) Such attachment `shall continue until discharge by'
order of the court..
(d) The Domestic. Relations Division shall make periodic re-
ports to the court of defaults in and failure to comply with any'
order of the court.
Rhode Island General Laws
E~emptions .
Salary or wages due a defendant at time of service of the writ in
excess of $50 may be attached. (~ 9-26-4).
Before judgment `
At the time of the commencement of any action, or at any time there-
after Prior to judgment, a court may authorize issuance of an attach-
ment (garnishment) after hearing on the plaintiff's motion for'
authority to attach a defendant's assets. (§~ 10-5-2, 5, 8).
PAGENO="0055"
47
Noi'~: Prejudgment attachment, insofar as it is authorized without.
judicial notice and hearing, was held unconstitutional in McClellan v.
Commercial Credit Co., (D.1R.I. 1972) 350 F. Supp. 1013.
PutIk officers ai~d employees V VVV V V V V
City is subject to garnishee i3rocess, (TVil~son v. Lewis, 10 R.L
2S.3 (1S72)).
Sc;~'icc 07 7;iOcc-tS
Service upon a public cotpora~ion, body, or authority is made by
delivering a copy of the summons, or process to any officer, director or
manager thereof. (District Court Civil Ruler, Rule 4).
77m~ to answer
In district courts. within 10 clays after service of the writS in the
Superior Court. within 20 days af~er service of the writ. (~ 10-17-4)..
Lt~cimn'thon. of acirnisllee V
Each ~arnishee is required to render an account in writing, uponV
oath. of ~tl~at estate. if any. had in its hands or possession at the time
the writ was served. (~ 10_11_.2). A person si~ning the garnishee S
answer may be summondd by eitVh~r party at any time before final judg-
:nent and sub~ccted to examination and cross-examination upon all
matters relatina- to or connected with the Vfacts set forth in such answer.
10-11---6).
Pei~a7t~' o;'~ fcdlii.re to ~
Ipcn failure to render an account. a garnishee may be charged to the
amount of the judgment. or decree rendered against the defendant in
the suit. If no judgment is tendered because of want of service on tile
defendant. the ~arrishee shall be charaecl to the amount of the 1ust
claim oj demand which the plaintift may show against the defendant
to the satisfaction of the court. (~ 10-11-15).
or ~cr~t V
Attaches salary and wa~es clue and payable at the time of the service
of the writ. (~10-5-S). V V V
D~.se/large of employee V V~ V V
No sMtutoiy piovision
V South Carolina Code V
Eceemption~s'
All of the earnings of a debtor for his personal services is exempt:
from the process of garnishment. (~ 10-1T31).
Cons ~`~n er Protection. Code.-TJnder the Consumer Protection Code,.
a creditor may not attach unpaid earnings of the debtor by garnish-
ment to enforce collection of a debt arising from a consumer credit
sale, a consumer lease, or a consumer loan, regardless of where made.
Nor may an employer discharge an employee for the reason that a.
creditor of the employee has subjected or attempted to subject unpaid.
earnings of the employee to garnishment or like proceedings for the
purpose of paying a judgment arising front a consumer credit sale,.
consumer lease or consumer loan. (S.C. Laws 1974, No. 1476)
5.104, 106).
PAGENO="0056"
48
South Dakota Compiled LaWS
Exemptions
One hundred percent of earnings for personal services rendered
within 60 days prior to the court order if such earnings are necessary
for the us& of a family supported wholly or partly by his labor.
(~ 15-90-12).
Before judgment
A garnishment of earnings may be issued only in aid of execution
following a final judgment. (§ 21-18-3.1).
Public officers and employees
The writ may issue against any person, including the State and
any municipal or public corporation. (§ 21-18-1).
&rvice of process
Upon the State auditor or on the head of the State department, insti-
tution or agency affected, or on his deputy, or on any member of the
board in control of said department, institution or agency, or on both
the State auditor and such heads, deputies or members of the boards,
when the State is the garnishee. (§ 21-18-8).
Time to answer
Within 30 days from the date of service. (~ 21-18-26 to 29).
Examination of garnishee
State need only inform the plaintiff, by registered or certified mail,
the amount it owes to the principal defendant. (§ 21-18-28). In all
other cases, a garnishee answers, by affidavit, the questions relating to
the nature and extent of his indebtedness to the defendant as the same
are prescribed at § 21-18-27. A garnishee's answer may be traversed,
in which case, the issues thereby raised stand for trial as a civil action.
(§ 21-18-30). No issues may be raised against the State by traverse of
its reply. (~ 21-18-30).
Penalty on failure to answer
Court may render judgment against a garnishee (except the State)
for the amount of any judgment, including costs, which the plaintiff
shall recover, together with costs of the garnishee action. (~ 21-18-39).
No judgment shall be entered against the State nor shall any actual
liability be incurred by the State in any garnishment proceeding.
(~ 21-18-40).
Effect of writ
Attaches to property, money, credits and effects in the garnishee's
possession at the time of service and thereafter until garnishee makes
his answer. (§ 21-18-12).
Discharge of employee
No statutory provision.
Tenuessee Code
Exemptions
The greater of 50 percent or $20 per week of the total weekly salary,
wages or income of every resident head of a family, subject to a maxi-
mum total exemption of $50 per week; and, 40 percent or $17.50, which-
ever is greater, of the total weekly salary, wages or income of every
PAGENO="0057"
~49
resident nonhead of a family, subject to a maximum total exemption
of S40 per week.
Xn additional exemption of $2.50 per week is provided for each de-
pencient child under 16 years of ag~e. (§ 26-201).
S~ippoit OidCi s.-Lnless a spouse (in whose favor an order, decree or
judgment has been rendered) has remarriech the exemptions do not
apply with respect to alimony and child support. (~ 26-210).
Be~'oee ~~o7gm~t
Excepting State, county and ~nunicipal employees, an employee's
wages may be reached by garnishment at the commencement of an ac-
tion and before or after jud~ment, if grounds for an attachment exist,
since the attachment may be by garnishment. (~ 23-601, 701). G-ar-
nishneent is C150 available, in aid of execution on a~ judgment. (~ 26-
501).
P~~fc o~~'s cuvl emploYees
Salaries. wag-es or other compensation of State, county and mu-
nicipal officers and employees is subject to garnishment. (~ 26-518).
Xoru: This section does not authorize commencement of a suit
against, a State employee by attachment or attachment by garnishment
~gainst. wa~ees due the State employee. The wages may not be attached
before the claim for which they are sought~ has been reduced to judg-
:nent. (Bie n~h~n~oa v. Bicwil?gtoms. 215 Teirn. 475, .381 S.W. (2d) 777,
Soï~ee of `ceess
Process is served on the hudeet officer in the department in which
the garnisheed employee work~. and also upon tlie commissioner of
that department in which such official or employee shall be engaged or
connected. (~ 26-~519).
Ti'me to amswer
Li attachments by garnishment, the garnishee shall appear at the
return term of the attachment. Or before a justice of the peace, at a
time and place fixed. to answer~ such questions as may be asked of
him touching the pioperty and effects of defendant. (~ 26-703). Gar-
:i~shmenes in aid of execution are recuired to be answered within 10
days after issuance except that if the execution is issuecT from a justice
of the peace or general sessions court, tire officer or clerk of the latter
court shall set the time when thO garnishee shall appear. (~ 26-501).
Income executions are to be answered by mail, or appearance before
the court, within 5 days. (§ 26-207).
Examination of garnishee
Statute specifies questions garnishee may be required to answer
under oath. Statute auplies to attachments by garnishment and gar-
:eishment in aid of execution. (~$ 23-707. 26-207, 506). He may here-
cuired to answer such other quest ions as are put to him by the court
or judgment creditor. (~ 26-506 (4)). Additionally, air answer is not
conclusive for amounts under $1,000. and it may be controverted with
a. resulting trial on issues raised thereby. (§ 26-507).
Penalty on failure to answer
In case of a dc-fault in, appearance or answer, a conditional j udg-
ment may be. entered against tire garnishee for tire amount due, and
PAGENO="0058"
50
a second summons is issued. Upon a second default, the conditional
judgment may become final. (~ 23-714 to 717; 26~-511).
Effect of writ
Attaches to salaries, wages or income earned at the time of service
(~ 26-207)~.
Diseharije of employee
No statutory ~
Texas Civil Statutes'
Exemptions
Current wages for personal services are not subject to garnishment.
(Tex. Const. Act 16, § 28, and Civil Statutes, articles 3836, 4099).
Utah Code
Exemptions
Fifty percent of earnings for personal services rendered any time
within 30 days next preceding the levy of execution or attachment
by garnishment or otherwise, when it appears, by affidavit, that the
debtor is a married man, or head of a family, and that such earnings
are for the use of his family residing within the state and supported
wholly or in part by his labor. The minimum exemption hereunder is
~50 per month. (~ 78-23-1).
Exemptions with respect to enforcement of judgments arising from
debt on a consumer credit sale are the greater of: (a) 75% of disposa-
ble earnings for a workweek, or (b) the amount by which disposable
earnings for a workweek exceed 40 times the Federal minimum hourly
wage. The multiple prescribed by the administrator shall apply for
pay periods other than a week.
An employee's earnings shall not be garnished in any amount where
his disposable earnings for a pay period of one week or less is $84 or
less; ~163 for a two-week pay period; $182 for a semi-monthly pay
period. (Uniform Consumer Credit Code, Rule 5).
iSup port orders.-Exemptions inapplicable to court orders for child
support. Court may order an employer trustee, financial agency, or
other person, firm or corporation indebted to the parents, or either of
them, to withhold and pay over to the clerk of the court, moneys due or
to become due not in excess of the lesser of: (a) the amoi~mt ordered
to he paid by the court, or (b) one-fourth of the amount due or to
~become due at each regular or usual payday or day of disbursement.
(~ 55-10-110).
Before `lucigment
Wages and earnings are excepted from prejudgment garnishment
(Rules of Civil Procedure. Rule 64d (b'~ (i)): garnishment before
judgment is also prohibited for debts arising from consumer credit
`sale, consumer lease or consumer loan. (~ 70B-5-104).
Public officers and employees
No statutory provision.
Service of process
Service is made upon person or persons designated by plaintiff as
garnishee or garnishees. (Rules of Civil Procedure, Rule 64D (e) (i)).
PAGENO="0059"
51
.Tim~ to.a~swer
\\`itlun 10 dai s fiorn d'ite of seivice (Rules of Civil Pioceduie,
Rule 64D (e) (ii))
Erem.ina.tion of garni.sliee
The. writ may require the garnishee to answer written interroga-
tories: the answer may be controverted and the issues thereby raised.
tied by a court or jury; the garnishee may be examined, under oath,
the court. if he fails to answer the writ within the time required.
(Rules of Civil Procedure. Rule 64D (e), (h), (j)).
.Pcralty on failure to amswer
Plaintiff may enter the garnishee's default and proceed to prove
the liability of the garnishee. In such procedure, the court may make
provision for witness fees and mileage, as may be just.. Judgment shall
e entered on the evidence to the same effect as if the garnishee had
enswered. and costs ma be awa~rded to the plaintiff. (Rules of Civil
?rccedure. Rule 64D (R)).
r~of of nu~it
Attaches to indebtedness due at the time of service. (Rules of Civil
Prc~edure. Rule 64D (a)).
D~s'~7iarge of employee
No employer may discharge. an employee by reason of the fact
thet his earnings have been subjected to garnishment for any one
fnd~btedness. (~ TOB-5--10(3).
\Termoflt Statutes
Vermont Rules of Civil Proce~dure. Rule 4.2(j) (2) incorporate the
provisions of the Federal Consumer Credit Protection Act (15 U.S.C.
~ 1611-1677) which impose maximum limits upon the amount of
earnings that may be garnished to satisfy a debt, but expresses the re-
quirements of the Federal Act in terms of its practical effect, i.e., the
exemption is stated as $48 on disposable earnings of $67 per week or
less. and not more than 25 percent of earnings where the weekly dis-
pose ile earnings exceed S64. Limitations for pay periods longer than
o wepi~ shall be those prescribed by regulations of the United States
~o:retarv of Labor.
B~o;c iudamcnt
No trustee process shall issue against earnings except on a claim that
has first been reduced to judgment. (Vermont Rules of Civil Proce-
dure, Rule 4(j) (i)).
Pvölze officers and ernployees
Earnings of officers and employees of the State is subject to the
trustee process. (~ 12-3013).
~ ice of process
Tpon the State Treasurer (~ 12-3013).
~ to answer
Within 30 days after the service of the trustee summons upon the
trustee. (Vermont Rules of Civil Procedure, Rule 4.2(f)).
PAGENO="0060"
52
Examination of garnishee
Trustee may be examined by interrogatories answered in writing and
under oath. (~ 12-3064). A trustee's answer is not conclusive and either
party may allege and prove facts material to that issue. (~ 12-3066).
Questions of fact arising upon such additional allegations are triable
by court or jury. (~ 12-3067), or may be determined by ~ commissioner
if a person is summoned as a trustee in a county court and lie does not
choose to appear before a justice or district judge competent to try
causes between the parties. (§~ 12-3068, 3070).
Penalty on failure to answer
Judgment by default may be entered for the amount of the damages
and costs recovered by the plaintiff in the action. (§ 12-3063)
Effect of writ
The writ attaches to the goods, effects or credits in the hands of the
trustee at the time of service, or which come into his hands or posses-
sion before disclosure. (~ 12-3013).
Discharge of employee
Prohibited unless the employer has been previously summoned as
trustee on five or more separate occasions arising from separate ac-
tions, or unless the employer establishes that there were other substan-
tial causes contributing to the discharge (~ 12-3165).
Virginia Code
Exemptions
The greater of: (a) ~5 percent of disposable earnings for a work-
week, or (b) the amount by which disposable earnings exceed 30 times
the Federal minimum hourly wage. (~ 34-29). Appropriate multiple
applicable to pay periods of longer than a week.
Support orders-Exemptions inapplicable to order of any court for
the support of any person. (§ 34-29).
Before judgment
A garnishment summons must allege it is based on a judgment.
(~ 8~441).
Public officers and employees
The wages and salaries of all employees of the State, other than State
officers, is subject to garnishment or execution upon any judgment
rendered against them. (~ 8-449.1).
The wages and salaries of all officials, clerks and employees of any
city, town or county is also subject to garnishment or execution upon
any judgment rendered against them. (~ 8-449.2).
Service of process
Service is made upon the comptroller or other officer through whom
the judgment debtor's salary or wages is paid. (~ 8-449.1).
Time to answer
No specific statutory period. A person summoned as garnishee shall
appear, in court, in person, on the date specified in the summons~
(~ 8-441.1).
PAGENO="0061"
53
Examination of garnishee
A person summoned as garnishee may file a verified statement or
appear in person and be examined under oath. If judgment creditor
disputes the verity of the statement, he may require the garnishee to
appear in person for examination on oath. (~ 8-443).
Penalty on failure to answer
Court may compel appearance or hear proof of any debt owing by
garnishee, or of effects in his hands belonging to defendant, and make
such orders in relation thereto as if what is so proved had appeared on
h~s examinatlon. (~ 8-447, 552).
Eflcc~ c,
Wages and salaries due up to the return day of the process are
bound by the writ. (~ 8-443, 445, 449.1; § 34-29).
Discharge of employee
Prohibited with respect to aiiy one indebtedness. (~ 34-29).
Yom: Statute empowers courts or judges to revoke exemptions upon
proof that the holder of an exemption certificate is no longer entitled
thereto. (~ 34-31).
Washington Revised Code
The greater of: (1) 40 times, the State hourly minimum wage, or
(2 .3 percent of the defendant's disposable earnings. The exemption
applieS whether such earnings are to be paid, or are paid, weekly,
monthh-, or at other intervals, and whether the earnings are clue for
one week, a portion thereof. or for a longer period. (~ 7.33.280).
~Lp port orders.-Exemption does not apply for child support if:
(a~ the garnishment is based on a judgment or other court order; (b)
the amount stated in the writ does not exceed the amount of two
months support paymeitts, and (c) speciflc statutory language show-
ing the garnishment is i)asedl on a court order is conspicuously added
to the writ. (~ 7.33.2S0).
Before judgment
Authorized with respect to earnings on stated grounds.
(~ 7.33.010).
Public officers and en~ployees
The State. counties, cities, towns, school districts and other munici-
pal corporations are subject to garnishment. (~ 7.33.060).
.1 ~ of process
Process against the State is served upon the Attorney General.
(~ 4.92.020). Service on the county is made upon the county auditor;
on the mayor with respect to service on a town or incorporated city;
and upon the clerk if a school district is to be served, (~ 4.28.080)..
Time to answer
Within 20 days of service (~ 7.33.050).
Examination of garnishee
By interrogatories incorporated upon the writ. (~ 7.33.150). The
plaintiff may controvert a garnishee's answer (~ 7.33.240) and the
issues thereby raised may be tried by the court (~ 7.33.260).
PAGENO="0062"
54
Penalty on failure to answer
Judgment may be rendered by default against the garnishee for
the full amount claimed by the defendant, or in case the plaintiff has
a judgment against defendant, for the full amount of such judgment
with ~ll accruing interest and costs. Upon motion and before execu-
tion, such judgment may be reduced to the amount of the nonexempt
funds or property actually in the garnishee's possession at the time
of the writ's service plus nonexempt earnings subject to `continuing
lien, or $100, whichever is more. (~ 7.33.190).
Effect of writ
A plaintiff or judgment creditor may obtain a continuing lien on'.
wages. The lien catches nonexempt wages owed at time of service
and the nonexempt portion of all wages earned through the end of'
the last pay period ending immediately prior to 30 days after serv~ee
of the writ. At end of the. 30 day period. the garnishee must answer
a second set of answer forms. (~ 7.33.350-380).
Discharge of . employee
Prohibited unless three or more such garnishments are served upon
the employer within ally period of twelve consecutive months...
(~ 7.33.160).
West Virginia Code
Exemptions
Eighty percent of wages, but in no event shall the amount payable
to a judgment debtor be reduced thereby to less than $20 per week..
(~ 38-5A-3).
Uonsum~r Uredit and Protection A ct.-The greater of: (a) 80 ncr-
cent of disposable earnings for a workweek, 01 (b) 30 times the Fed-
eral minimum hourly wage. For pay periods longer than a week, the
commissioner of banking is to prescribe, by rule, a multiple of the.
Federal minimum hourly wage equivalent in effect to that set forth in
subdivision (b) above.
Upon proof that an execution on wages will cause or is causing~
undue hardship to him or his family, an execution arising from a coii-
sunier credit sale or consumer loan may he temporarily or peimanently
removed by a court. (~ 46A-2-130).
Before `judgment
No garnishment before judgment under the Consumer Credit and
Protection Act.. (~ 46A-2-118). In all other cases, the process of bind-
ing the wages and salaries of private and publi~ employees iii satis-
faction of a debt is termed a "suggestee execution." T~e process is
not authorized to issue before judgment. (~ 38-5A-2).
Public officers and employees
WTages and salaries of officers and employees of the State, a State
agency. or any political subdivision of the State are subject to oainish_
ment and suggestee execution. (~ 38-SB_2).
Service of process
Upon the State auditor in the case of money owed by tile State:
upon the auditor of a State agency in case of money pay~hle direct.fr
by such agency, or, lacking such, upon the officer thereof whose thi~y -
PAGENO="0063"
it is to audit and/or issue warran~s or orders for the payment of such
c~aims: or. upon the. person designated by the State aucittor or i~eacl
of such department. agency or institution to receive such service.
Service on poijtjcal subdivisions shall be. made upon the. auditor
thereof or the officer who. or the clerk of the board or any body
s ch'~ e.e wn i the 1i r~ ef en iti ic d o i~su ilg va aiits
or orders for the payment of such ClaimS. (~ 3S-5B-.5).
Ti;r~ to ui~-~nci
No provision respecting answer and appearance. The employer, upon
service of the execution, is. apparently, required to immediately pay
over nonexemi)t wages or salaries to the officer serving the execution
or to the judgment creditor. (~ 38-5A-5).
The ploner State. officer upon whom such an execution has been
served is required to pay over the nonexempt wages or Saicries to
the nerson serving the execution Or to the court or clerk of the court
I ssuiiig the executfon. (~ 3S-5B--9).
Pe;co7ty on ~ai7~ïe to a~wer
A sugaestee who fails and refuses to pay such nonexempt wages
and salaries shall be liable to an action therefor. (~ 38-SA-3).
A public officer shall be personally liable in like circumstances only
if he acted in bad faith.
A political subdivision failing and refusing to pay over such 11011-
exempt waaes and salaries shall be liable to an action therefor.
No~judgments shall be recovered against the State as suggestee. but
a jud~nient creditor may bring an action for declaratory jiid~~nent to
~ ~ sit i s alit to h'u e sum~ due oi to become aue nom the ~
cr a State agency applied in satisfaction of his suggestee execution.
(3S-5B-9).
Effect of writ
Execution becomes a. lien and cohtinuing levy upon salary and wages
clue or to become due to the judgment debtor within one year after
issuance of the same, (~ 3S-5A-3~ 3S-5B-2).
Execution does not be(~ome a hen against salary or wages clue
or to become clue from the State or a State agency within 10 days
after service thereof or Payable by a political subdivision within 5
days after service thereof. Wages and salaries due or to become due
after such periods are subject to a lien and continuing levy.
(~ 38-5B-3).
Disc1~arge of employee
No employer may discharge an employee by `reason of a garnish-
ment to pay a judgment arising from a consumer credit transaction.
(~ 46A-2-131).
Wisconsin Statutes
Greater of: (a~ Th percent of disposable earnings for each full week
of the pay period, or (b) an amount equal to 3() times the Fedqral
minimum hourly wage for each full week of the pay period. In case
of pay periods other than a week, the exemption shall be determined
by use of a multiple of the Federal n'iinimum hourly wage prescribed
by rule of the industry, labor and human relations commission.
(~ 267.18(2) (a)).
PAGENO="0064"
56
Support orders.-The exemptions are inapplicable to an order of any
court for the support of any person.
Coiuumer Act.-Exemption is the greater of: (a) 75 percent of cus-
tomer's earnings after deductions required by law to be withheld,
or (b) $15 per dependent per week, other than the customer, and as
claimed by him for Federal income tax purposes, plus 40 times the
Federal minimum hourly wage. (~ 425.106(a)).
No~ri~: The above exemptions do not displace other provisions of
law which afford additional or greater protection to the customer.
(~ 425.106(c) (2)).
Efmployee with depenclents.-A basic exemption of $120 plus an
additional $20 for each dependent for each 30 day period prior to
service of process to collect a debt. The maximum exemption is 75
percent of income. The one claiming the exemption may elect to have
the exemption computed on a. 90 day basis. (~ 2~T2.18 (15) (c)).
Employee without depencients.-A basic exemption of 60 percent of
income for each 30 day period prior to service of process to collect a
debt. The minimum exemption is $75, the maximum is $100. (~ 272.18
(15) (h)). The 90 day election also applies.
Nom: "Income," for purposes of the above, is defined as gross re-
ceipts less Federal, State and social security tax withholdings.
(~ 272.18(15) (a)).
Before judgment
Garnishment actions affecting the earnings of the principal defend-
ant may not be commenced before judgment in the principal action.
§ 267.02(2) (a)).
Public officers and employees
Only a judgment creditor may maintain garnishment actions to
reach the disposable earnings of officers and employees of the State or
any political subdivision thereof. (~ 267.23(1) (a))..
Service of process
On the cleparLment of administration, if the State is the garnishee;
otherwise to its secretary or clerk. (~ 267.23(2) (a)).
Time to answer
Within 20 days of service of process. (~ 267.11.23(b) (4)).
Eaxtmination of garnishee
Interrogatories incorporated on summons. (§ 267.11). Plaintiff may
reply to a garnishee's answer and the issues thereby raised and joined
shall be tried by the court. (§ 267.14). The answer of the State is con-
clusive in the garnishment action. (~ 267.23(4)).
Penalty on failure to answer
Judgment may be entered to the amount of the plaintiff's judgment
and costs. (~ 267.04(2)).
Effect of writ
\Vhen earnings are the subject of the garnishment action, the amount
owed the principal defendant on the payday for the pay period in
which the garnishment summons was served on the garnishee is sub-
ject to garnishment. (~ 267.18(1) (b)).
PAGENO="0065"
57
Discharge of employee
Discharge for garnishment for any one indebtedness is prohibited.
(~ 267.235). Employer prohibited from discharging an employee be-
cause his earnings have been subjected to garnishment for the purpose
ot paying a ju~lgment arising from a consumer credit transaction.
~ 423.110).
Wyoming Statutes
Fifty percent of a judgment ~1ebtor's earnings for personal services
renc.~ered at any time within 60 days next preceding the levy of execu-
r~on or attachment if it appears such earnings are necessary for the
nse of hts resident family supported wholly or in part by him.
`~ 1-422).
Uniforni Consumer Crecl'it COde.-The greater of: (a) 75 percent of
disposable earnings for that week, or (1) the amount by which disposa-
b~e earnings for that workweek exceed 30 times the Federal minimum
noiniv wage. For pay periods~ other than a week, the exemption is
ueterimned by application of a multiple of the Federal minimum
±TLouriy wage eouivaient in effect to that set forth in (b). (~ 40-5-105).
D~o;c ~,damcnt
~m~Jabie in aid of attachment at or after commencement of suit.
1-226. 3 Ti). Prohibited in actions for debts arising from con-
sumer credit sale. consumer lease or consumer loan. (~ 40-5-104).
P~th(ic o~cevs and employees
Salaries and wages of StateS county, county board of commissioners,
municipalities, cities, towns, and employees is subject to garnishment
in the same manner and for the same causes as are private individuals.
-ICC or ;l'ocess
Ifton the chief executive officer of a department or agency of the
State, a municipal or other public corporation, or to its secretary, clerk,
person in charge of its principal office or place of business, or any
member of its governing body.~ (Wyoming Rules of Civil Procedure,
Rule 4).
T~'2ne to answer
Within 20 days of service. (~ 1-232). Within the time specified in
the writ of garnishment issued by justice of the peace courts (~ 1-579).
E~am~nation of qarnis7~ee
Appearance in and examination under oath in justice of the peace
courts. (§ 1-579). Employers served with garnishments in aid of execu-
tion may be required to appear before the court and respond to inter-
rogatories or be questioned respecting the debtor's property in his
hands. (~ 1-414,430, ~79) or file answers to interrogatories with the
court. (~ 1-232). Answer to interrogatories may be traversed and
issues raised thereby shall be tried by the court. (~ 1-252).
Pena7ty on failure to avswer
.Tudgment may be rendered in favor of plaintiff for the amount of
the property and credits of the defendant in the garnishee's possession,
and for what r~iay.. app~r .to~ be owing by him to the defendant.
(~ 1-256,582).
51-207----75-----5
PAGENO="0066"
58
Effect of writ
Binds wages earned and those wages due within the designated.
period. (§ 1-422).
Discharge of employee
No employer shall discharge an employee for the reason that a credi-
tor has subjected the employee's wages to garnishment for the purpose
of paying a judgment arising from a consumer credit sale, consumer
lease, or consumer loan. (~ 40-5-106).
PAGENO="0067"
B. Statutory Remedy for Recovery of Support and Maintenance
Under the Aid to Families With Dependent Children Program
I~gislatures of at least. six States Florida, Georgia, Maine, Utah,
Urgmia. and Washmgton have concluded that existing common law
and statutory remedies for the enforcement of support for financially
dependent minor children by responsible parents have not proven suffi-
cie:itiy eflecrive or efficient to cope with the increasing incidence of
financial dej~endencv.
These statutory remedies generally consist of suing out writs of~
attachment or garnishment to subject a delinquent parent's property
and earnings to the satisfaction of a support obligation due an~
owing: the imposition of a statutory lien on a responsible parent's
real and ersonal property for nonpayment of support, and its sub-
sequent enforcement by distraint, seizure and sale; the initiation of
judicial proceedings to adjudge a delinquent parent in contempt for'
failure to comply with a court order of support and the definitioi~
and delineation of nonsupport as a. crime subjecting a delinquent.
patent to arrest. anti im r~sonment upon conviction of the crime.
Despite the enactment of Public Law 93-647, impediments, on the
Federal level to the effective and efficient enforcement of State child
support statutes might still be found in the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended, 50 App. U.S.C. §~ 501-585.
Under this Act, nothing prejudièial to the civil rights of persons in
the armed forces can be enforced by legal proceedings; thus, at any
stage of any proceeding in any cOurt, a ierson in the military service
can Petitioll the court to stay the proceedings and the court is bound
to do so if. in its opinion, the petitioner's conduct of his defense would
be materially affected by reason of his military service. (50 App.
U.S.C. ~521).
Under the doctrine of sovereign immunity, the Federal Government
cannot be subjected to legal proce~s or action without its consent. Prior
to the enactment of Public Law 93-647, 88 Stat. 2337, the Federal Gov-
ernment could not he subjected to garnishment and similar proceed-
ings for enforcement of child support and alimony obligations of its
civilian employees and members of its armed services. Section 459 of
Public Law 03-047 waives the go~ermuent's immunity in this area ;: and
from and after its January L 1975 effective date, the United States is
subject.. in like manner and to the same extent as if it were a private
persou. to legal process brought for the enforcement of the support;
and alimony obligations of its employees and members of its armed
forces.
In light of the foregoing, the aforementioned States in the exercise
of their police and sovereign powers have augmented their existing
common law and statutory remedies through enactment of additional
remedies directed to the real and personal property resources of the
responsible parent of financially dependent children. The statutes
(39)
PAGENO="0068"
60
that are hereinafter summarized provide an alternative support
method whose purpose is, in part, to reduce the burden presently borne
by the general public through welfare payments to dependent children
of a financially responsible parent or parents. A summary of these
statutes follows.
1
GeneraZ background
The payment of public assistance money for the benefit of any de-
pendent child creates a debt due and owing to the State department o±
social and health services. By accepting public assistance for or on be-
half of a child or children, the recipient is deemed to have made an
assignment to the department of any and all right, title, and interest in
:nny support obligation up to the amount of the public assistance money
J?aid for or on behalf of such child or children. The amount of the debt
~nay also be limited to the amount specified in any support agreement
Tespecting the foster care of such child or children, or by the amount
specified in a court order for support.
A court order for support prevails over any support agreement and
the department is empowered to petition the courts for modification
of a court order on the same grounds as a party to said cause. The de-
~partment is also empowered to conduct hearings and enter findings,
subject to judicial review~ respecting a debtor's disclaimer of liability,
or the financial responsibility of the responsible parent or parents.
Additionally, the department is subrogated to the rights of said
child, children, or the person having the care, custody and control of
them, to prosecute or maintain any support action or execute any
administrative remedy to obtain reimbursement of moneys expended;
and, when a money judgment for support is entered by a court, the
department is subrogated to the debt created by the order and said
money judgment is deemed to be in favor of the department.
Initiation of proceedings
Proceedings are initiated by issuance of a notice of a support debt
accrued and/or accruing based either upon subrogation or assignment
of the judgment created by a court order, or based upon the payment
of public assistance to or for the benefit of any dependent child or
children.
Service of notices
Notices relating to findings of financial responsibility of a respon-
sible parent may be served in the same manner prescribed for service
of a summons in a civil action. Notices of liens, withhoIdin~ orders
and debts accrued and/or accruing based upon subrogation or assign-
ment of a support order may be served in the same manner prescribed
for service of a summons in a civil action or by certified mail, return
receipt requested. Notice of debts accrued and/or accruing based upon
payment of public assistance may be served on the debtor in the man-
ner prescribed for the service of a summons in a civil action, including
summons by publication where appropriate and necessary.
`IICW, ~i 74.20A.OiO to 74.20A.900 (approved and e1~eetive ~/2O/7i). See Appendix A
for the Washington Revised Code.
PAGENO="0069"
61
Tinw. to an.swer notices
Within 20 days of the date of service of the notice.
Ecralty on failure to answer
(a) Collection actions may be undertaken against a delinquent
debtor, and (b) persons. firms, corporations, political subdivisions or
nelartinents of the State failing to answer lien or withholdmg order
r.o~ice shall be liable in an amount equal to 100% of the value of the
debt which is the basis of the lien or withholding order.
(Xor~: The same penalty is assessed for a failure or refusal to coin-
ply with a lien or withholding order, or failure to honor a wage
assi~iinient.)
iupc of collection actions
(a) Lien-a lien against all property of debtor, with the priority of
a secured creditor. may be asserted on claims for support debts not
r:~id when clue. (b) Order to `withhold and deliver-the secretary may
iss~:e such orders to bind a debtor's property of any kind, including
earnings. due. owing or belonging to the debtor. (c) Wage assign-
:~-a debtor max execute a wage assignment as part of an ap~
nerved plan with the secretary to satisfy or retire a support debt or
o dilgatmon.
E7Fect 07 w2tlL/~c'7d~ng orders and wage ass2gnments
Binds nonexempt. earnings on a. continuing basis until the entire
aneount of the support debt has been witithelcl.
~2d77t~07~S
~ of earnin~s (defined as includina wages. salary, commissions,
leoretses. eriociic. payments pursuant to pension or retirement plans or
insurance policies of any type but does not include payments based on
inability to work or obtain employment, or payment of money to a
head of a family when the same is, due for the personal labor or services
of such PerSomi. Excluded from the definition, but subject to the collec-
non actions. are: 100% of temporary and permanent total disability
compensation to a workman allOcated respectively by the State in-
dustrial insurance statutes. to the spouse and children of a workman,
and 40% of the net proceeds of payments to a workman for permanent
partial disability).
Enforcement of liens
By distraint, seizure and sale~ of property subject to the lien, or
through the courts by foreclosure actions and sale, after the required
public notice of sale.
Rfaht of redemption
For a period of up to 240 days after a foreclosure sale, a person own-
ing or having an interest in real or personal property sold in satisfac-
tion of a child support debt may redeem it by paying the purchaser, at
foreclosure, the purchase price plus interest at the rate of 6% per
annum.
Discharge of employee-prohibited.
PAGENO="0070"
62
Florida1
~General background
In all cases where regular child support payments are not being
~uade, the department of health and rehabilitative services shall
I~nstitute a civil action for support from the persons liable for the sup-
lort of the dependent child or children. The action may be instituted
ivithin 30 days of the date an applicant is approved for public as-
sistance on behalf of such child or children. The department may also
letition the appropriate court for modification of a court order on the
same grounds as either party to the cause.
The payment of public assistance money to or for the benefit of any
dependent child or children creates a debt due and owing to the depart-
ment by the natural or adoptive parent or parents responsible for the
support of such children. The amount of that debt is limited to the
amount of the public assistance payment or the amount of support
specified in a court order or decree. To obtain reimbursement of money
thus expended, the department is subrogated to the right of the child or
children or person having the care, custody and control of the child or
children to maintain any support action, to determine paternity, or
cxecute any appropriate administrative remedy. Additionally, the de-
iartment is empowered to conduct hearings respecting a debtor's dis-
claimer of liability, and its decision in the hearing shall establish the
liability of the debtor, if any, for repayment of public assistance
~uoneys expended to date as an assessed and determined child support
debt. The findings are subject to judicial review.
Initiation of proceedzngs
Proceedings are initiated by issuance of a notice of a support debt
~accrued and/or accruing based either on subrogation to or an assign-
inent of the judgment created by a court order or final judgment of
dissolution of marriage, or based upon the payment of public assistance
to or for the benefit of any dependent child or children.
~Service of notices
Notices of a support debt or lien based on subrogation, assignment
~or payment of public assistance shall be served in the manner pre-
~cribed for service of summons in a civil action. Notices of distraint,
seizure and sale of property subject to a lien shall be served by certified
mail, return receipt requested. A withholding order shall be served in
the manner prescribed for service of a summons in a civil action or by
certified mail, return receipt requested.
Time to answer notices
Within 20 days of service of the notice.
Pe'naity on failure to answer
(a) Collection actions may be instituted against the delinquent
debtor; (b) any person, firm, corporation. association, political sub-
division or department of the State who fails to answer an order to
~withhold and deliver, or comply with a lien, honor a wage assignment
tar distraint, shall be liable to the department in an amount equal to
100% of the value of the debt which is the basis of the lien, order to
ivithhold and deliver, distraint, or assignment of wages, together with
costs, interest, and attorney fees.
1Statutes §~ 409.2452-409.2509 (approved 7/3/74, effective 10/1/75).
PAGENO="0071"
63
Types of collection actions
(a) Lien-may be asserted against the debtor's property, earnings
or bank deposits and balances. (h) Order to `withhold and deliver-
upon proper notice and hearing,~ a court may issue a withholding order
lnding propert inducTing earnings, due, owing or belonging to the
aebtor and in the possession of any person, firm, corporation, associa-
uon. io~it~cal subdivision or department of the State. (c) Wage assign-
mci~t-a debtor may execute a. wage assignment as part of an approved
pia~i with the department to satisfy or retire a child support debt or
obhgation.
Effect o~ `~hhizo7dinq ordc;'s and wage assignments
Bind iconexempt earnings on a continuing basis until the entire
amount of the support debt has been withheld or the assignment is
release ci in writing. by the department.
Ecicemptio7~s
.50% of disposable earnings. (Disposable earnings means that part
of an individual's earnings remaining after deductions required by law
to be withheld.) Earnings include: wages, salary, commission, bonus,
periodic. payments pursuant tO i~s~~n or retirement programs or
insurance po!icies. that part of temporary and total disability pay-
ments and compensation as provtcieci under the workmen's compensa-
tion statutes to the spouse and children of a workman, and not more
than 40% of net proceeds of payments to a workman for permanent
nattml disability. It does not include State payments based upon
inabihtv to work or obtain employment, or the payment of a.ny money
or thing due to a. resident head~ of a family for the personal services
or labor of such 1)ersoii.
EiJorcemeitt of liens
Bn distraint, seizure and sale of property subject to the lien, or
through the courts by foreclosure actions and sale, after the required
public notice of sale.
Right of reciern~ption
For a period of up to 240 days after a foreclosure, a person owing
or having an interest in the real or personal property sold in satis-
faction of a support debt may redeem it by paying the purchaser, at
foreclosure, the purchase price plus interest at the rate of 6% per
annum.
Disc1~urge of employee
Prohibited.
Georgia1
Summary
Under the child support recoi~ery act; the payment of public assist-
ance to or on behalf of a dependent child or children creates a debt
due. and owing to the State by the responsible parent or parents of the
child. Such payment also operates as an assignment to the State of
the right to any child support owed for the child or children up to the
amount of public assistance paid, and the State is subrogated to the
right of the child or children or person having their custody, to initiate
`Code, §~ 9O-901b to 90-919b (approved and effective on 3/28/73).
PAGENO="0072"
64
any action for their support and to recover any payments ordered by
the State courts or courts of any other State.
The department of human resources is charged with the responsi~
bility of administering the Act. In this respect, it is empowered to
conduct investigations to determine whether a responsible person is
able to support the dependent child receiving public assistance. In the
conduct of its investigations, the department may examine any books5
papers or memoranda bearing on the determination of the ability to
support and may compel the attendance of witnesses and the produc-
tion of relevant documents. The department is also required to develop
standards for measuring the ability of a responsible parent or parents
to support his child or children.
Upon fifteen (15) days notice to a parent after the department's
investigation and application of its support standard leads it to be-~
heve a parent is able to provide support, the clepartmei~t, or its clesig-
nated hearing officer shall conduct an administrative hearing to finally
deterimne such ability and the amount of support. The department's
final affirmative order, in this respect, shall inform the pai~e1it.t1iat any
~aiiure to pay support may result in foreclosure of liens on his real oi~
personal property or in other collection actions. The finding is subject
to judicial review.
The child support lien in favor of the department attaches to all
personal and real property of the responsible parent if he fails to make
any support payment within 30 days after it is clue, and the departniei~t
is required to file its lien within three (3) months from the time it
attaches.
Maine ~
General b ac1~ground.-A public assistance payment for the benefit
of a dependent child creates a debt due to the Department of Health
and Welfare. The amount of the debt is limited to: (a) the amount of
public assistance paid; (2) the amount decreed by a court order of
support; or (3) in the absence of a court order and after a hearing,,
the periodic support payment established by the department.
The department is required to create a scale of suggested support
payments to assist courts and others in determining the amount a par:
ent should contribute to the support of a child. Also, for a fee, anct
upon application, the department may locate absent parents, enforce
support obligations, and determine paternity on behalf of persons who
are not recipients of public assistance, by actions under any appro-
priate statute. However, no support obligations or debts incurred be-
fore October 1, 1975 shall be enforced by the methods prescribed by
this law.
In the absence of a court order for support, the department may,.
upon a hearing, establish a periodic payment to satisfy the responsible
parent's support obligation. The statute prescribes the criteria to be
applied in deciding on the amount of the periodic payment.
The department is subrogated to the rights of any dependent child,
children, or person having their custody, to pursue any court action
or administrative remedy to secure payment of the accrued or accruing
debt and to enforce the court order. Further, the receipt of public as-
sistance constitutes au assignment by the recipient to the department
1 RevIsed Statutes, §~ 19-49i to 19-5i5 (approved 6/2O/7~, effective i0Ji175).
PAGENO="0073"
65
of all rights to support for the child, including any support unpaid at
the time of assignment as long as public assistance is paid. The recip-
ient is also deemed to have appointed the commissioner of the depart-
ment as his or her attorney in ~act to perform the specific act of
endorsing over to the department any and all drafts, checks, moneyS
orders, or other negotiable instruments for the support of the child.
The responsible parent or the department may move for an admin-
:strative review of any action taken under this act; and, excepting its
cte~:sion respectrng the periodic support payment, the department may
re~-:ew any action taken uiider this act. Finally, upon exhaustion of
their administrative remedies, any party aggrieved by any final action
at tue commtssioner may seek judicial review of that action.
I~ itiat.~on. 07' proccedzngs.-Xdministrative proceedings are initiated
)V issuance of notice of a hearing. Such notice shall contain a state-
:I~ent of the debt accrued or accruing; the time and place of the hear-
:ng: a. statement of the periodic public assistance and the name of the
i~ub~ic assistance recipient and the dependent children; a statement
tuat upon failure to appear, the accrued debt and future periodic sup-
1:ott payments shall be assessed~ against the responsible parent and
enforced by collection actions.
*~(ii~(C 0~ notice.-Service of any notice or lien may be by certified
mail. return receipt requested; by publication, or by service in hand,
us specified ~fl civil actions.
T;n~e to answer uotices.-Within 20 days of service.
"Pena7ty" oi~ failure to an.sw~r.-Collection actions may be under-
taken and failure to comply thei~ewith may result in liability for the
entire debt plus costs, reasonable attorney fees, and interest at the rate
of G~ per annum.
Type o7' collectiom action.s.-(a) Lien.-21 days after service of
liotice of debt. or the decision establishing the periodic support payment
of the responsible parent, a lien in favor of the department may
b2 asserted against all the property of the responsible parent. (b).
Oricr to ~th/~old and deliver.-2l days after service of notice of debt,
and the filing of a. lien, the commissioner may serve on any person, and
the responsible parent. an order to withhold and deliver any property,
including wages, to the commissioner. Such order must be answered
~vithin 20 days of its service. (c) Wage assignment.-A debtor may
execute a wage assignment to the commissioner. (d) Administrative
seizure and disposition of property.-If it can be done without a
breach of the peace, the commissioner may seize or demand surrender
of any property subject to a lien.
Effect of withholding order and wage assignment.-Bind earnings
on a. continuing basis until the entire amount of the debt has been
withheld or the assignment is released in writing by the commissioner.
Exemption~s.-(a) all property otherwise exempt from trustee proc-
eSS. attachment and execution is exempt from an order to withhold
and deliver, administrative seizure and disposition, and lien and
foreclosure.
(b) Weekly earnings up to 30 times the State minimum hourly wage
are exempt. Also, a minimum amount for each dependent natural or
adopted child is also exempt. Such amount is to be determined by the
commissioner.
PAGENO="0074"
66
Enforcement of Lie~w.-By foreclosure actiOns in the county where
the lien is filed and in accordance with the statutory procedures appli-
cable to foreclosure real and personal property liens. Upon adminis-
trative seizure of property subject to a lien, the commissioner may
dispose of it in any~ commercially reasonable manner or turn it over to
the recipient of assistance for the express benefit of the dependent
child involved.
Discharge of employee.-Prohibited.
Utah1
Genera~ backgrouncl.-The receipt of assistance furnished by the de-
partment of social services constitutes the department as trustee of
any cause of action of the obligee or any minor child in that obligee's
custody, to recover support due the obligee from any person and may
bring and maintain the action either in its own name or in the name
of the obligee.
The department is invested with power of attOrney to act in the
name of any recipient in endorsing and cashing any and all drafts,
checks, money orders or other negotiable instruments received by the
department and representing support payments.
Court orders embodying money judgments for support shall be
deemed in favor of the department to the extent of the department's
snbrogation rights; and the department has the right to petition the
court for modification of any court order on the same basis as a party
to that action would have been able to do so. Additionally, to the ex-
tent of any conflict between them, a court order takes precedence over
any order of the department.
The level of support payments established by the department may
be reset at any time and may be cancelled and; payment in full de-
manded when the department is justly apprehensive of losing prop-
erty which could become subject to a collection action to satisfy the
support debt.
Support liens, wage assignments or garnishments shall not be invali-
dated by reason of the operation of any statute of limitations;
however, an 8 year period of limitations applies to actions to enforce
liabilities due or to become due by reason of the failure to provide sup-
port or maintenance for dependent children.
No injunction shall issue suspending or restraining any order or
award adopted by the department or any action required to be taken
under this act by the county-attorney or attorney-general; and no
action, proceeding or suit to set aside or vacate or amend any order
issued pursuant to this act, or to enjoin the enforcement thereof shall
be brought unless the plaintiff shall have so applied to the department
for a hearing thereon and shall have presented every issue presented by
such action, proceeding or suit.
The department, in the absence of a court order, is empowered
to conduct hearings to determine the support debt of the obligee,
whether accrued, accruing, or both, and, where appropriate, the
amount to be paid thereon each month. A party aggrieved by such
determinations may request a hearing before appointed examiners
who shall provide a full and fair hearing into the responsibility and
liability of the aggrieved party. A further judicial review is available.
1 Code, §~ 78-45b-1 to 78-4~b-22 (approved 3/11/75, effectIve ~/13/75).
PAGENO="0075"
67
In all investigations and prosecutions of any action against the
obligor. the attorney-general is empowered to grant criminal im-
munitv to witnesses and parties.
I7tititiOfl of proceechng~.-By issuance of a notice of a support
debt accrued or accruing. based either upon a court order or upon
the furnishing of support by the. department. Proceedings may also be
initiated by issuing an order to show cause, to the obligor, why a
prev~o~~siy entered order should not be prospectively modified.
Yotices Shall contain :-(a) A statement of the debt accrued or ac-
cruing. (b) the name of the recipient of department assistance and the
name of the minor child to whom assistance is being provided; (e) a
demand for payment: and (d) the consequences of failure to comply or
submit an answer settin~ forth any claimed defenses to liability.
Se;u'ioe of notke.-B~ certified mail, return receipt requested. Or-~-
ders to show cause shall be served in the manner of a summons in a~
civil action.
Ti~ree to amswer 2~ot~ces.-With~n 20 days of service.
Penalty on, failure to an.gwev.-~---Collec~ion actions may be initiated.
Type o1! collection aetio2?s-(a~) Then.-A lien again~t the real and
personal property of the obligor arises at the time of the filing of the
abstract of the final order of the denartme.nt and continues thereafter
for a period of S veers from the date of the award. The lien has the
same preference against the debtor~s assets as claims for taxes have~
a 1Tt~a'c a.tt;a;~oenc$.-Lpon entry of an order for support, the court,
non motion of the department, shall order any parent to assign to the
county clerk or stick other officdr. designated by the court to receive
pay~i~ei1ts. that portion of the parent's salary or wages to become clue as
may be sufficient to pay the court ordered support amount.
Effect of wage u.s.signment.-Binds current and future wages until
the entire amount of court ordered support has been satisfied, or until
released in writing by the directdr.
Exernptzons.-30 % of disposaile earnings. Exemptions from judg-
ment lien and forced sale consist of: (a) a homestead exemption of
lands, appurtenances and improvements to the sum of $4,000 for the
head of a family: (b) a further sum of $1,500 for the spouse, and $600
for cccli other member of the fathily; except upon the following obli~
gations: (a~ taxes accruing and levied thereon; (b) judgments ob-
tained on debts secured by lawful mortgage on the premises and on
debts created for~ the purchas~ prlce thereof; and (c) judgments
obtained by an appropriate party on debts created by failure to pro-
vide support or maintenance for dependent children.
Enforcement of lien.-By execution upon and sale of the property
subject to said lien.
Right of reclemption.-Prior to sale, the property may be redeernect
upon payment of the amount due, together with expenses of the pro-
ceedings and reasonable attorney fees. Within 90 days after sale, re-
demption may be effected upo~ payment of the amount paid by the
pi~rc1~aser plus interest thereon at the rate of 6% perannum.
Di.$c7~arge of employce.-Prohibited. The discharge of an employee
subieets the employer to liability in damages to the employer and,
additionally, to the department in an amount equal to the debt, to-
gether with costs, interest and attorney fees.
PAGENO="0076"
68
Virginia1
Genera~ baclcgrounc7.-The payment of public assistance to or for
the benefit of any dependent child or children creates a debt due and
owing to the State Department of Welfare in an amount equal to the
amount of public assistance paid.
Where there is a court order or final divorce decree, the debt shall be
limited to the amount specified in such order or decree. The depart-
ment ha~s the right to petition the appropriate court for modification
of a court order on the same grounds as either party to such cause.
Further, the department is subrogated to the right of a child or cliil-
ciren or person having the care, custody and control of such child or
children to prosecute and maintain any support action or execute any
administrative remedy to obtain reimbursement of any moneys thus
expended; and, the department is further subrogated to the debt for
support created in any court order or final decree of divorce.
The department is obligated to undertake any action to insure that a
responsible parent shall comply with the obligation to provide the sup-
port, care and maintenance of a dependent child or children in receipt
of public assistance. In this respect, the department is specifically em-
powered to: (1) represent dependent children on whose behalf
public assistance is being provided; (2) appear as a friend of the
court in divorce and separate maintenance suits, or proceedings Supple-
mental thereto; (3) upon request, assist mothers of dependent chil-
dren, on whose behalf public assistance is being provided, for the pur-
pose of securing modifications of divorce or separate maintenance de-
crees when it appears to the satisfaction of the court that the mother
is without funds to employ private counsel; (3) initiate any civil pro-
ceeding deemed necessary to secure reimbursement from a parent or
parents of all money expended by the State in providing assistance to
the dependent child or children.
Upon approval of the Federal Department of Health, Education
and Welfare, the State Department of Welfare may disclose and keep
the Federal Internal Revenue Service advised of the names of all per-
Sons who are under a legal obligation to support any dependent child
or children and who are not doing so.
AU money paid as the result of any action taken under this act shall
be paid to the clerk of juvenile and domestic relations district court.
The clerk is required to notify and report all persons in arrears. Re-
ports of delinquent obligors shall be made to the department's investi-
gation and enforcement unit.
The department is required to establish a scale of suggested mini-
mmn contributions to assist localities and courts in determining the
amount that a responsible person should be expected to contribute to-
ward the support of his or her child. The department is also authorized
and directed to establish a central unit to serve as a registry for the ic-
ceipt of information for answering interstate inquiries concerning de-
serting responsible persons. The unit's primary functions are: (1) in-
vestigate individual assistance cases as to the potential for provision of
support by an absent responsible person; (2) locate absent responsible
persons; (3) assessment and acquisition of voluntary support, where
iCocie, §~ 63.1-249 to 63.1-2S9.2 (approved 4/5/74, effective date, 7/11/74).
PAGENO="0077"
69
possible; (4) enforce child suppor~ through administrative action; (5)
prepare cases for court action; (6) ensure a continuity of support pay-
ments; (7) investigate fraud involving public assistance applicants.
The department director is empowered, without the necessity of
signing any document. to act as attorney-in-fact to endorse any and
all drafts. checks. money orders or other negotiable instruments repre-
senting child support. payments ivhicli are received on behalf of a cle-
pendcnt child or children as reimbursement for public assistance
moneys prev~ous1y pa~di to such recipient.
A debtor filing an answer to a notice of a debt under this act is en-
titled to an administrative hearing of his defenses, and if his property
is assessed with a lien for a support debt, he may appeal cie novo to the
circuit court of the. jurisdiction wherein the property is located on the
basis that no child support debt is due and owing. It is the legislative
intent in this respect that jurisdictional and constitutional issues, if
any. shall be subject to review but that administrative remedies shall
be exhausted prior to judicial review.
interest at. the rate of 6~ per annum accrues on past due support
debts. and the director is empowered to demand full payment and
file and serve liens when the collection of any support debt appears
to be in ~eopardv.
Ii; ~t~ct~oit of proceec7higs.-By issuance of a notice of a support debt
accrued or accruing ~aseci upon subrogation to or assignment of the
judgeinent created by a court order or final decree of divorce, or based
upon payment of public assistance to or for the benefit of any depend-
ent child or children. Notices shall include a statement of: (a) the
amount of the debt: (U) the amount rectuireci to be paid under the
ccnrt order. cr the amount of public assistance previously paid and
to be paid in the future: (c'~ a denmnd for payment; and (ci) the
actions to be taken upon a failure to comply with the notice.
.Sciricc cf not~e.-By certified mail, return receipt requested, or,
by personal service by a sheriff pr by delivery to any person at the
oblievjr's residence.
T,;~e TO c;~sucr imct~cce.-Within 20 days of service.
Penalty em failure to answem'.-Collection actions may be initiated.
Types of collection actions-(a) Lien.-May be asserted on the debt-
or's real and personal property, and such lien shall have the priority
of a secured creditor. (b) Order to withhold and deliver.-After serv-
ice of a. notice of a debt or the filing of a lien, the director may issue
a withholding order respecting the debtor's property in the possession
of any uerson~ firm, corporation, association, political subdivision or
department of the state. (c) Wage assign.ment.-A debtor may execute
a wage assignment as part of a plan to satisfy or retire a child support
debt obligation.
Effect of `with1aoldi~mg orders and wage assignrnents.-Bind non-
exempt property and earnings on a continuing basis until the entire
amount of the debt is satisfied. Noncompliance herewith may result
in the employer's liability to the department in an amount equal to
100% of the value of the debt.
Exemptioims.-50% of disposable earnings, which is defined as that
part of the earnings of any individual remaining after the deduction
from those earnings of any amount required by law.
PAGENO="0078"
70
ff~nfovcement of liens.-By distraint, seizure and sale, after notice,
of the property subject to such lien; or through the courts by fore-
closure actions.
Right of ~edernption.-Upon institution of foreclosure proceedings,
a debtor may redeem his property by payment of the amount due,
~together with the expenses of the proceedings and reasonable attorney
~fees. For a period of up to 240 days after the sale of the property
~forec1bsed, the debtor may redeem his property by making payment
to the purchaser in the amount paid by the purchaser plus interest
thereon at the rate of 6% per am~um.
Discharge of ernpioyee.-Permitted only if more than three child
support liens are served upon the same employer and directed to the
same employee within any period of 12 consecutive montlis.
PAGENO="0079"
II. ATTACHMENT PROVISIONS OF STATE LAWS
PAGENO="0080"
PAGENO="0081"
Attachment P~'ovisions of State Laws
CONTENTS
Page
Introduction 75
Law Dbiest:
Alal3ama
Alaska 80
Arizona 80
`~ .`L -
California 86
Colorado 90
Connecticut 92
Dclavcare $6
District of Columbia 98
Florida 100
Geor~ia 102
Hawajj 104.
Idaho 105
IllInois
Indiana 111
Iowa 113
Kansas 114
kentuclcv 116
Louisian~a 118
Maine 120
Maryland 122
Massachusetts 124
Michtgan 129
Minnesota 132
Mississinpi 134
135
Montana ~37
Nebraska 139
Nevada 141
New Hampshire 143
New Jersey 145
New Mexico 148
New York 150
North Carolina 154
North Dakota 156
Ohio 159
Oklahoma 161
Oregon 163
Pennsylvania 165
(73)
51-207-75------G
PAGENO="0082"
74
Law Digest-Continued Page
Rhode Island 169
South Carolina 111
South Dakota 172
Tennessee 174
Texas 175
Utah 177
Vermont 179
Virginia 180
Washington 181
West Virginia 183
Wisconsin 185
Wyoming 187
PAGENO="0083"
IL Attachment Provisions of State Laws
The general definition for attachment is:
The act or process of taking, apprehending, or seizing per-
sons or property. by virtue of a. writ, summons, or other
~udiciai order. and brin~in~ the same into the custody of the
law: used either for the purpose of bringing a person before
the court. of acquiring jurisdiction over the property seized,
to compel an apl)earance. to~furnish security for debt or costs,
or to arrest a. fund in the hands of a third person who may
become liable to pay it over.~Also the writ or other process for
the accomplishment of the purposes above enumerated, this
being the more contmon use of the word. Attachment is a
remedy ancillary to an action by which plaintiff is enabled to
acquire a lien upon propert~ or effects of defendant for satis-
faction of judgment which plaintiff may obtain. Though
sometimes called an ancilla~y or auxiliary proceedling, attach-
ment is in all essential resp~cts. a suit. The purpose is to take
defendant's property into legal custody, so that it may be
applied on defendant's dept to plaintiff when established
~B~ac.k's Law Dictionary, 4th Edition, 1951).
The attachment provisions set out in this part refer to the gen-
eral survey of State laws.' Procedures to execute delayed listing of
exempt property and other matters in text referred to under "See
Topic-" can be found in Volume VI, Martindale-Hubbell Law Direc-
tory. which sets out a digest of the laws of the various States under
specific topic. headings.
Attachment is a procedure for collecting judgment and can be used
for collecting arrearages with regard to alimony, separate maintenance
and support. of dependent spouse. child, or children. (For a complete
and comprehensive understanding of the attachment provisions of a
State law, it is necessary to examine case law and the other provisions
in the law which set out additipnal requirements.)
`Volume VI, Martindale-Hubbell Law Directory, 107th Annual Edition 1975, Published
by Martindale-Hubbell, Inc., Summit, NJ. Reprinted with permission of the publishers.
All rights reserved.
(73)
PAGENO="0084"
PAGENO="0085"
Alabama Law Digest
Attachment
A~oi~ Ii? widelt ct77owed.-An attachment may issue in following
hinds of actions: (1) To enforce collection of a. debt, whether due or
not. (2) for a liquidated money demand. (3) to recover unliquidateci
damages for breach of contract. (4) when action sounds in damages
mereh-. (T-845). Attachments may only issue in cases where defendant
1) resides outside State, (2) absconds, (3) secrets himself so that
cannot be served on him, (4) is about to remove from State,
about to remove his property out of State, (6) is about fraud-
ulenth- to dispose of his property. (7) has fraudulently disposed of
h~s prapert or (8) has money. property or effects liable to satisfac-
non of his debts which he fraudulently wititholds. (7-846).
Similar rules prevail in respect to attachments to enforce certain
specified liens (31-19. 20. 23, 29-3~; 33-7. 8, 16, 18-21, 2~, 26, 66-76, 81,
82) and in suits to collect nnmicipal taxes (37-694).
In addition, an attachment may issue: In an action by State for re-
coven- from a public officer of public money (7-76); on application
or any surety in a. written coiitract (7-310-313) ; on arbitration
awards, whether for delivery of property or to do or omit a particular
act 7-83.5) on a judgment. in detinue for recovery of specific prop-
errv 7-924-4)27). When summons to a. defendant resident of the county
is :eturned "Not. found" plaintiff may sue out an attachment on mak-
an affidavit that the defendant has evaded service of process.
(7-880, 881).
T'me for issucowe-Plaintiff nt~y sue out an attachment pending suit
under same conditions as in original attachment proceedings. (7-879).
In equity-Writs of attachment issued in proceedings formerly cog-
nizable in equity on legal demands operate only on effects or choses in
action to which defendant is equitably entitled. (7-302). Ne exeat and
equitable attachment may issue on equitable demands in any case in
which an attachment at law may issue, except where otherwise pro-
vided. (7-301). Equitable attachment may issue before demand is re-
ducecl to judgment. (7-303).
Executor or administrator may commence a suit by attachment in
representative character. (7-864). No judgment can be rendered
against an executor or adminstrator on his answer in attachment until
3 months after the grant of letters testimentary or of administration.
(7-891).
Oorporations~.-An attachment may be sued out by or against a cor-
poration. (7-854-857, 860).
.T?lii.sdictiort to i.ssue.-Attachment to enforce collection of debt or
iiauidated money demand may be issued by judge or clerk of circuit
court. judge of probate. attachment to recover unliquidated damages
for breach of contract or on claith sounding in damages merely can be
issued only by judge of circuit court, or judge of probate. (7-847).
(77)
PAGENO="0086"
Circuit judges and registers may order equitable attachments to issue.
(7-309).
Procedure.-Cornplaint must be filed in 15 days after suing out at-
tachment if demand was then due; otherwise within 15 days after claim
or demand becomes due. (7-882). A summons may issue on a complaint
so filed, but has no effect on levy lien or enforcement of the attachment.
(7-883). If defendant appears and pleads, the cause proceeds. as in
suits commenced by summons and complaint; if defendant fails to
appear or to plead within time required by law, plaintiff may take
judgment by default or, if necessary, may execute a writ of inquiry.
(7-884; see also ARCP 55).
Affidavit
In order to obtain an attachment to enforce collection of debt or
liquidated money demand, plaintiff must make written oath that the
debt or demand is justly due or to become due, that one of the grounds
for attachment exists, and that the attachment is not sued out to harass
defendant. (7-848).
Special affldavits.-In order to obtain attachment to recover unliqui-
dated damages for breach of contract or to enforce a claim sounding in
damages, merely, plaintiff must, in addition, make affidavit as to the~
special facts and circrtmstances. (7-850). A nonresident seeking an at-
tachment against another nonresident, in addition to the other require-
ments, must make affidavit that defendant has not sufficient property
within the State of his residence wherefrom to satisfy the debt. (7-851).
Bond.-Except where attachment is sued out on ground that defend-
ant is nonresident or in suits brought by wife for alimony or support
where husband has threatened to leave State or fraudulently dispose of
assets, plaintiff must supply bond with sufficient surety. (7-301, 849).
Defendant may bring suit on attachment bond within 3 years,.
and he may recover vindictive damages if attachment was sued out
maliciously. (7-887).
Alias writ of attachment may be issued without a renewal of the
bond or affidavit required in original proceeding in cases where insriffi-
cient property has been found or, pending suit, plaintiff wishes to gar-
nish other persons. (7-867).
Notice of the attachment must be given a nonresident defendant by
publication and by mail. (7-852). Personal notice or notice left at his~
residence must be given a defendant who is a resident of the county;
notice by posting at the courthouse door and by mail must be given a.
defendant who is a resident of some other county. (7-853; see also~
ARCP 4[c]). Similar rules obtain in all other cases, whether or not
specifically provided. (31-21; 33-5).
Notice is necessary for attachment for enforcement of arbitration
award (7-835) and where hereinabove expressly stated; see also
ARCP 70.
Levy
Attachments may be levied on real estate, personalty (whether or-
not in possession of defendant) or choses in action (7-861), and also
on the joint and se.parate estate of joint obligors, promisors or partners,
whether resident or nonresident (7-863). An attachment issued in
equitable proceedings, whether on equitable or legal demands, operates~
PAGENO="0087"
79
only Oil effects or choses to which the defendant is equitably entitled.
(7-301-303).
Levy on Investment Secunities.-No attachment or levy upon a se-
curity is valid until security is actually seized by officer making levy~
hut security which has been surrendered to issuer may be levied on at
source. Creditor whose debtor owns a security is entitled to injunctive
relief in reaching security. (1965-549, § 8-317).
Lc~cy on. goods Coveied by Negotiable Document.-Except where
document was issued upon an una~ithorized bailment, there can be no
vCii~i attachment of goods in possession of bailee for which negotiable
document is outstanding unless document be surrendered to bailee or
its negotiation enjoined. (1965-549~ § 7-602).
TFhcie Lery J[ade.-Xn attachiiient may be executed by the sheriff
of the county in which the property is located. (7-865,866).
Inc?enu~itu to Officer.-A sheriff may demand indemnity when doubt
exists as to defendant's title to p~rsonal property on which lie is re_:
quired to levy. (T-875). Such demand may be made either before or
after levy. (99 Ala. 292, 13 So. 305),
L~en.-Leyy creates a lien in favor of plaintiff. (7-869). Equitable
attachment creates a lien front service of attachment. (7-307). Liens
of atteching creditors are given priority according to dates of levies.
(.9~ Ala. 202. 13 So. 305).
Pcp~c~c~cion._A defendant, or. in his absence, a stranger, may on
execution of an approved bond, replevy the attached goods. (7-876-
878). Defendant may also replevv goods seized under equitable attach-
ment. (7-305, 306).
Vacation .-Attachrnent issued without the required affidavit and
bond may be abated on plea of defendant filed within 30 days after
service of Summons and complaint (7-885), but plaintiff is allowed a
liberal right to cure defects in hi~ affidavit or bond and to supply a
bond after such plea is made. (7-886).
&`le.-Piaintiff. after judgment~ may obtain a sale of property levied
on. Court, on motion of either party, must before judgment order sale.
of perishable property levied on; sheriff retains proceeds to await final.
disposition of cause. (7-870). Sheriff must sell at public auction goods
so perishable that they will deteriorate greatly in value before meeting
of court, and goods the charge of k~eping which is very great; proceeds
of such sales must be paid into court. (7-871). A circuit judge or
register of court in which complaint is filed may order a sale of per-
sonal property levied on under an equitable attachment, and proceeds
must be paid to register. (7-309).
Proceeds of Sale.-Plaintiff, on notice to defendant and execution
of a proper bond, in the absence of an adverse third person's claim and
of a sworn denial by the defendant of plaintiff's claim, may before
judgment obtain proceeds of sale. (7-5, 872, 873).
Judgment.-W1-tere contest arises concerning title to or right in
attached property, no judgment can be rendered against defendant in
attachment until trial ~f such collateral issues. (7-~89). When plaintiff
fails to obtain judgment against defendant in attachment because c1airn~
for trial of ri~'ht~to property has been interposed, attached property
must be restor~d to claimant at cost of plaintiff. (7-890). If judgment~
PAGENO="0088"
80
for plaintiff is not satisfied by property attached, execution may issue
thereon against any property of defendant (7-892), but this does not
apply to a nonresident who fails to appear. (109 Ala. 270, 19 So. 814).
Forms of attachment and other proceedings are set out in the Code.
(7-857; 13-432).
Alaska Law Digest
Attachment
Actions in Which Allowed-Grounds.-At any time after com-
plaint is filed, writ of attachment may be secured by plaintiff: (1) In
any action on contract, for payment of money which is not secured
by a lien on property, or if so secured, when security is insufficient to
satisfy a judgment for amount justly due plaintiff; (2) in any action
on contract against a defendant not residing in State; (3) in any action
for collection of any State tax or license fee. (09.40.010).
Courts Which May,' Issue Writ.-Superior, district and magistrate
~ourth.
In Whose Favor Writ May Issue.-No distinctions made between
residents and nonresidents as to right to secure attachment.
Property Subject .-All property not exempt from execution is liable
t.o attachment. (09.40.010).
Affidavit
To secure the writ, an affidavit must be med showing the amount
of the debt, with all proper allowances for setoff and counterclaims;
and ground for attachment.
Undertaleing.-Before the writ issues, an undertaking with one or
more sureties, for not less than $100, and at least equal to the amount
for which judgment is claimed, must be filed by the plaintiff. With the
imdertaking must also be filed affidavits showing that the sureties are
qualified and that, taken together, they are worth twice the penalty
of the undertaking, above their liabilities, excluding exempt property.
(09.40.020).
Provisional Levy.-Property may be attached and held during
pendency of motion for issuance of execution reviving judgment and
until final ruling.
Release of Property.-Upon giving redelivery bond. (09.40.110).
It is a good defense to an action on a redelivery bond that the
property did not, at the time of the execution of the writ of attach-
ment, belong to the defendant against whom it was issued.
Discharge of Attachment.-Provided where perishable goods have
been sold. (Rule 89, Civ. R.P.).
Levy on Mortqaged Personalty.-See Chattel Mortgages.
Third Party Clairns.-See Executions.
Arizona Law Digest
Proceedings.-Plaintiff seeking an attachment must file an affidavit
showing:
That~defendant is indebted to plaintiff on a contract, express or im-
plied, for direct payment of money, that such contract was made or is
payable in this State. and that payment has not been fully secured by
mbrtgage, lien or pledge, or, if originally so secured, that such security
PAGENO="0089"
81
has, without any act of plaintiff or person to whom security was given,.
become valueless, character of indebtedness, that same is due to plain-
ti~ over and above all legal setoffs or counterclaims, and that demand
has been made ~or payment o,f amount due: or
That defendant is~ indebted to plainti~. statin~ amount and char-
acter of debt; that same is due and payable `over an'~[ above all legal set-
offs and counterclaims, and that defendant is a nonresident of this State~
or is a foreign coruorat:on doing bi~siness in this State; or
That the action is broua-ht on a jud~ment of another State or tern-
tory of United States. or of the Distni~t of Columbia; or
That action is pending between parties and that defendant is about
to remove his property beyond jurisdiction of court to avoid payment
of juda-ment: and
That attachment is not sought for wrongful or malicious purpose,
and action is not prosecuted to hinder or delay any creditor. (12-1522).
Debt :~ ot D~e.-Attnc-l~ment may issue upon a debt not yet due in
the foflou-ing cases. on affidavit showing:
That defendant is indebted to plain~iff on a contract, express or mi- -
phed, for direct payment o.f nioney~ stating amount and that debt is not
due; that such contract was made or is payable in this State, and that.
p~vment has not been secured by mortgage, pledge or lien, and stating
the character of the debt sued for and that there are no legal setoffs or
couiiterc1aim~ against the same; and
~ defei1c1~u~ ~ ~ to ierno~ e perm~nenth out of the State ~ id
has ref us~~ to secure the debt; or
That he ha~ secreted his property for the purpose of defrauding his~
creditors: or
That he is about to remove his property out of the. State without leav-
in~ sufficient remainin~ for the pa~ment of his debts; or
That lie has disposed of his pro~erty, in whole or in part, with intent
to defraud his creditors or that he. is about to do so; and
That the attachment is not sued for the purpose of injuring or
harassing the defendant; and
That ti~e plaintiff will jrobably lose such debt unless such attachment
is issued. (12-1523).
Bond must be given in not less than the amount of the debt sued
for conditioned tI~at plaintiff will, prosecute his writ to effect and will
pay all such damaee~ and costs a~ shall be adjudged against him for
~vr~ongfully suing ~ut such attachment. (12-1524).
Issuance 0/' Writ.-One or more writs may issue at the same time
and to different counties. (12-1528).
Levy on personal property is made by seizure and on real property
by ffli~ig a copy of the writ with description of the property with the
county recorder where real property is situate.
Reiu.rn.~Writs are returnable at any time within 30 days after
levy. (12-1531).
Dv7~7n'n.ity.-Officer levies at own risk but may require indemnity
Pond (12-1529).
Release -of Property.-At a.ny time before judgment the defendant
may replevy the attached property by giving bond in double the
amount of plaintiff's debt or at defendant's option, for the value of the
property, conditioned that the defendant will satisfy the judgment
PAGENO="0090"
82
which may be rendered in the action. or will pay the value of the
property. (12-1536).
Sale.-Perishable personal property may be sold prior to final judg-
ment upon order of the court issuing the writ. (12-1533).
Third Party Claim&-Third party claim to personal property is
made by presenting written property beyond jurisdiction of court in
which action is pending for purpose of defeating collection of judg-
ment; or
in an action on contract, express or implied, against a defendant not
residing in this State or a foreign corporation doing business in this
State; or when executor or administrator has failed to file required
verified account (14-622); or in an action upon a judgment of any
State or territory in United States, or of District of Columbia (12-
1521).
See also infra, subhead Debt Not Due.
Attachment
Courts Which iiiay Issue Wnit.-Superior courts, justice courts.
Lien.-No statutory provision.
In Whose Favor Writ May Issue.-There is no restriction on right
of nonresident individual or foreign corporation to obtain attachment.
Actions in Which May Issue; Grounds.-Attachments may issue in
the following cases:
in an action on contract, express or implied, for direct payment of
money, where contract is made or is payable in this State, and is not
fully secured by any mortgage or lien on real or personal property, or
any pledge of personal property: or, if originally so secured, such se-
curity has without any act of plaintiff, or person to whom the security
was given, become valueless; or
When any suit is pending for damages, and defendant is about to
dispose of or remove his claim under oath to levying officer and posting
bond equal to double the value of the property (12-1331), the bond to
be conditioned on claimant's return of the property in good condition
or its value plus damages and costs if he fails to establish his claim
(12-1332). The property must then be returned to the claimant (12-
1333) and the ciaim and bond returned to the proper court and there
docketed for hearing of the question of ownership (12-1335-41).
Attorneys and Counselors
There is a public corporation called "The State Bar of Arizona" to
svhich all lawyers must belong.
Jurisdiction Over Adrnission.-Board of Governors of State bar,
with approval of supreme court, has power to fix and determine quali-
`fications for admission. (32-237).
Eligib'ility.-Applicant must be 21 years of age or over, a citizen of
the United States, of good moral character, mentally and physically
`able to practice law, and in good standing in any other State in which
~he may have been admitted to practice.
Residence Requireme~ts.-Applicant must have resided in Arizona
for 3 months immediately prior to first day of month of examina-
tion applied for and must have been physically present within State of
Arizona for at least 75% of said period; or applicant must have been
PAGENO="0091"
83
rO resident of Arizona for more than 1 year immediately prior to first
day of month of examination applied for and have been physically ab-
sent from the State for more than 25% of the last 6 months because of
some reason deemed substantial by the committee; or must have re-
sided at the College of Law, University of Arizona, for 2 semesters
immediately preceding examination.
Eth~cational Requirements.-Applicant for admission on examina-
tion must. be a graduate of a. law school fully approved by the council
of education of the American Bar Association at the time of gradua-
tion.
Re~istration as a law student is not required.
Jpe~t~oa TOT adm ~~u~on and all documents required to be filed plus
enamination fee of ~i~75. must be filed not later than first day of
Octoher if application is for the following February examination and
not. later than first day of March. if application is for the following
July examination. Any appiican~ who has previously been admitted to
practice or who has not been a. resident of Arizona for 5 years, with
The exception of certain students, must pay an additional registration
fee of S100.
Requests for information should be addressed to State Bar of Ari-
zona. 910 Fnion Title Buildin~. Phoenix~ Ariz. 85026.
I: ti~ra~o i~.s.-Ap~licant ma be required to appear for personal
ervtew.
W~itten examination held in F~bruar~ and ~Julv.
Admission without examination is no longer permitted. All appli-
eants tor admission to the bar must comply with examination
reouirements.
(?y.~ ~ Pro Hae TFce.-Attorney practicing in another State
may he permitted on motion. to b~ associated with l~ca.l coTmsel in trial
of any particular action.
Fe ~e.-Xctive member of bar must pay annual fee fixed by the board
of ge~ernors with the consent of~the supreme court not exceeding $40
per year: fee for retired member fixed by hoard of governors with
~onsenr of sopreme court (32-2i~fl. Mentber failing to pay fee after
2 months nocice of deli~~cjuency will be suspended from practice, but
~nav be reinstated. (32-219).
Readmission fee after disbarment or suspension for cause other than
nonpayment of clues is $50.
Di.scthi7it~es.-No attorney of record of either party to an action or
proceeding may be a surety. (7-109).
Co222.plcL~;?ts.-Board of governors has 5urisdiction of complaints,
may take evidence and dismiss complaint or certify evidence, with or
without. recommendation to time supreme court, which may then act.
D~slcirment or Svspe?msion.~Proceeding by local administrative
committee pursuant to supreme court rules 30 to 44.
Professional Gorporatio~.-See topic Corporations.
Unlawful Praetice.-Only active members of the State bar in good
standing may practice law. It is a misdemeanor to practice law unless
all active member in good standing. (32-261).
Red Estate Transaetions.-See topic Brokers.
Ai~tonm obiles.-See Motor Vehicles.
Dril7.-See Criminal Law.
PAGENO="0092"
84
Banks and Banking
Uniform commercial code adopted. See topic Commercial Code.
Reg'ulated by.-State banking department, under management of
superintendent of banks, has charge of execution of laws in relation
to banks and banking.
Deposits.-Bank deposits may be made in the name of two or more
persons including minors payable to either or any of them or to any
or the sole survivor. (6-267).
In Trust.-When deposit made in trust without further indication
of existence of a legal trust, on death of trustee deposit may be paid
to person for whom deposit was made. (6-268).
Unclaimed Deposits.-See Absentees, subhead Escheat.
Stock assessment may be imposed to extent of par value of stoci~
held in addition to amount invested.
Limitation of Loan~.-Unsecured loans over $1,000 must be accom-
pained by financial statement every 6 months. Continuing loan must;
he accompanied by yearly statement. Real property outside of United
States may not he used as security for loans. (6-251).
Savings banks may invest in first mortgages on real estate, subject;
to restrictions as to amount of bails and location of property (6-322)
and securities of State and United States, but may not invest or loan
on ininin~ or oil stock.
Trust Uompanies.-Persons engaged in trust business certified and:
regulated by state superintendent of banks. Banks exempted from
certification and other trust company requirements (except trust ac-
count administration requirements) if member of F.D.I.C. and other-
wise authorized to engage in trust business under Federal or State
laws. Trust companies subject to recordkeeping, examination, investi--
gation, reporting and administration of accounts requirements (6-851
et seq.). Bank or trust company receiving trust funds must pledge its:
assets to ext*eiit necessary to comply with Federal Reserve require-
ments. or if not a member bank, with rules of superintendent. (6-225)..
Uniform Common Trust Fund Act adopted. (6-871 et seq.).
Uniform Fiduciaries Act has been adopted, except that words:
"actual knowledge" are changed to "actual constructive knowledge"
throughout Arizona act. (14-1101 et seq.).
Foreign Ba.nks.-See topic Executors and Administrators.
Building and Loan Association.-Funds may be invested in iiii-
proved and certain unimproved real estate, shares of association. bonds
of United States, warrants of State and subdivisions, or debentures,
notes or membership in Federal Home Loan Bank. Foreign association
is prohibited from doing business within State. Superintendent of
banks has supervisory control and can bring action and be appointed
receiver to liquidate. (6-401 et seq.).
Uniform Disposition of Unclaimed Property Act in effect. (44-351
et seq.).
Bills and Notes
Uniform Commercial Code in effect. (44-2501 et seq.). See topic
Commercial Code.
Attornemj's Fees.-Clause for cql1ectioi~ is valid. (77 Ariz. 107; 267
P.2d 740).
PAGENO="0093"
S5
Jvdg2nent Notes.-See Judgments, subhead Judgment by Con-
Bills of Lading.-See topic Commercial Code.
Bills of .SaTh.-See Sales.
BZue. ASL~y Law.-See Securities.
Arkansas Law Digest
Attachment
Ao~~ ~ li7~ci~ Allowed.-Anv civil action for the recovery of
::icnev (31.1Cfl.
Attachment lies 111 equity as well as at law (38 Ark. 397).
I. fl7~ose F~;~ lFVIt d[a?J I~toe.-Any plaintiff, even though a
:~onresident. or a foreign co~poration, may secure an attachment.
::311r,1l
o;~. Widch lFiit ~5fay Zssue.-On unliquidated or unmatured
u i~i~ ons on conti'~ct (31 201 62 Aik 326 35 S W 435) ~. ~d on
con:~n~ent claims in tort actions (31.103). It is not necessary that the
c~ann sued on be payable in the State.
.l7me foi Iss~thi?ce.-~Yrit may be issued at or after commencement of
an aetic~i. (~1.101).
~ or~y fo Thí cislssvcd.-A writ of attachment (31.101) or garnish-
:eeent (31.142) max be directed to any county (31.110) in which prop-
ertv may he attached or a ~ariìisliee who is indebted to or has property
b:longing to defendant may be served with process (31.104).
Grounds for attachment in action on contract are that a defendant:
Is a foreign corporation or nOnresident; (2) has been absent from
iflO State 4 months: (3) has departed from the State with intent to
s cieditois (4~ h~s left the county of iw iesidence to ~ oid
the service of summons; (5) conceals himself so that a summons can-
be served upon him: (6) is about to remove or has removed his
property or a material part thei~eof out of this State, not leaving
enough therein to satisfy the plaintiff's claim or the claims of said
defenclant~s creditors; (7) has sold, conveyed or otherwise disposed
of his property, or suffered or permitted it to be sold with fraudulent
intent to cheat, hinder or delay his creditors; or (8) is about to sell,
convey or otherwise dispose of his property with such intent. (31.101).
An attachment on the sixth, seventh, or eighth ground may be sued out
before maturity of the debt. (31.201).
In action in tort or to recover a statutory penalty, ground for attach-
n~eeet es that defendant is a nonresident, of the State and cannot be per-
sona by served with Process within the State. (31.103).
Specific attachment may be had in actions to enforce a lien upon or
for the recovery, partition or sale bf personal property if it appears by
affidavit or other proof that the property is about to he sold. concealed
or removed from the State, or that there is reasonable cause so to
believe. This remedy is also available for a plaintiff who has a future
estate or interest (31.301), for a vendor of property fraudulently
~nrchased (31.302), for purchase money when property is in vendee's
c:ssession (34.2302).
P7e~clhu~s.-An order of attachment may be made by the clerk of
court in which the action is brought where there is filed in his office a
complaint, duly sworn to, showing the nature, amount and justness of
PAGENO="0094"
86
the claim and any one of the grounds of attachment above enumerated.
(31.105). Amendments may be permitted so as to embrace any grounds
of attachment which may exist up to final judgment. (31.107).
Attachment Bond.-An order of attachment may not be issued by
the clerk until there has been executed, by one or more sufficient sureties
of plaintiff, a bond that plaintiff shall pay defendant all damages sus-
tained by reason of the attachment (31.108).
Sureties on an attachment bond are liable for actual damages..
(31.152).
Issuance of Writ.~Writs are issued by the clerk or justice returnable
to the court having jurisdiction. Orders of attachment may be issuect
to sheriffs of other counties, and several writs may, at the option of the
plaintiff, be issued at the same time or in succession. (31.113).
Execution of Writ.-A levy on real estate is made by the officer leav-
ing with the occupant, or if there is no occupant, in a conspicuous place,
a copy of the order. (31.114). On personal property capable of manual
delivery it is made by taking the same into his custody. (31.114). Plain-
tiff has a lien from the time of delivery of the order to the officer.
(31.122). The court may make proper orders for the preservation and
use of property, and may direct a sale of perishable property. (31.133).
A receiver may be appointed to take charge of, collect and account for
all choses in action. (31.134).
Indemnity.-There is no statutory authority for officer to demand
indemnity before levying.
Priorities between attachments are according to dates of delivery of~
writh to sheriff. (56 Ark. 292. 19 S.W. 921).
Release of Property.-Defenclant may retain possession of the prop-
erty attached by furnishing a forthcoming bond. (31.124).
Sale.-If judgment is rendered for plaintiff, attached personal prop-
erty is sold first, then realty, at public sale, as ordered by and subject.
to the confirmation of the court. (31.155).
Third Part7J Claims.-Any person claiming an interest in the prop-~
erty attached may file a verified petition before delivery of the property~
or proceeds thereof to plaintiff and without other pleading the court
may hear proof, refer to a commissioner or impanel a jury to inquire~
into the facts. A nonresident claimant is required to give security for
costs. (31.157).
Vacation or Modification.-Defendant may discharge the attach-
ment. at any time before judgment, by furnishing a bond to the effect
that he will perform the judgment of the court. (31.136).
California Law Digest
Attachment
Attachment is purely statutory and provisions are strictly construed.
A writ may be issued at or after issuance of summons. (C. C. P. 537)..
Actions in Which Aliowed.-Actions where total sum claimed~ ex-~
clusive of interests attorneys' fees and costs, is $500 or more and which
is either: (1) Action against domestic or foreign corporation or part-
nershi~~ or individuals engaged in a trade or business, for a liquidated
sum of money based upon money loaned, negotiable instrument, sale or
lease or licensed use of real or personal property, or services rendered
if claim is not secured; or (2) action for recovery of money against
PAGENO="0095"
87
nonresident person (including nonqualified foreign corporations and
forei~n partnerships who have not~filed a designation) or any person
who `~annot be found after due diligence or who conceals himself to
avoid service of summons. (C. C. P. 537.1-537.2).
Fact that interest, attorneys' fees and costs are claimed does not
make a claim "unliquidated." (C. C. P. 537.1).
I;~ i~h0~ Fa.ror TFrit J.[(uI Is~c-ye.-Xii claimant or moving party,
"~thei )i' `titt o cp~endant including nomesident oi foreign cor-
poration: ma attach property of opposing party in proper case. (98
CaL Xpp. ~O. 2T? Pac. 337).
Pioceed~rr;.s to Obtc~ii~.-Pla~nt~ff may request clerk in writing at
time of ffl~n~ of complaint, not to make. public filing of complaint or
issuance of attachment until after filing and return of service of notice
and temporary restraining order. (C. C. P. 537.5).
F~aintiff niust. flle with court tipplication supported by affidavit
based on personal knowledge showing writ is proper in specific action,
indebtedness claimed is justly due. a.~id owing. attachment is not sought
and a~rion is not prosecuted to defMud creditors, and plaintiff has no
information or belief that defenclhnt has flied bankruptcy iroceecl-
ings. If cia im is a2ainst nonresident., nonqualified foreign corporation,
or partnership not filing designation, or person who cannot be found
after due diligence, then ulaintiff also must show amount and validity
of claim. (a.. C. P. 538).
If court satisfied affidavits establish prima facie case and that at-
tachment. properly issuable, it will, issue temporary restraining order
and notice of hearing on question of whether writ of attachment
should issue. (C.C.P. .53S.1). Hearing held 7 business days after
service of notice and temporary restraining order on de'fendant.
(C. C. P. ;53S.2). Temporary restraining order prohibit.s transfer of any
of defendants property in State subject to levy prior to hearing other-
wise than m ordinary course of business, issuance of checks in excess
of aggregate of S1.000 against any bank nccounts in State to withdraw
sums subject to levy which reduce account to less than plaintiff's
claims, and opemng of new bank accounts. Checks can he issued despite
81.000 limitation to meet pavroll,~ pay C.O.D. charges on delivered
goods. pay taxes. and pay legal fees to defend action. (C. C. P. 538.3).
~otice to and service upon bank are both ineffective to require bank
to observe order. (C. C. P. 538.1) Temporary restraining order ex-
pires unless writ issued and levied within 30 days after service of order
or if defendant gives undertaking pursuant to C. C. P. 555 in amount
of plaintiff's claim. Temporary restraining order may be vacated cx
parte if court satisfied that sufficient property will be available and
suhiect. to writ of attachment if one directed. (C. C. P. 538.3).
If defendant does not appear at hearing, court must order clerk
to issue writ of attachment. At h~aring, oral evidence and affidavits
may be introduced. Defendant must make himself or an officer with
Irnowledge of the transaction available for oral examination unless
court excuses requirement. Court decides on basis of evidence whether
writ of attachment properly issuable, probable validity of plaintiff's
claim, and probability of defendant asserting successful defense.
Thereafter it either orders clerk to issue writ of attachment or dis-
Solves temporary restraining order. (C. C. P. 538.4).
PAGENO="0096"
88
Court may direct issuance of writ of attachment without notice of
~hearing upon application of plaintiff under one or more of following
~conditions: (1) Where bulk sales notice posted under Com'l Code 6101
or escrow opened under Bus. & Prof. Code 24074; (2) where there is
~substantia.l evidence that defendant will transfer, remove or conceal
property sought to be attached; (3) where notice and order cannot be
served on defendant within 10 days of issuance and court satisfied
defendant departed from jurisdiction or concealing self; (4) de-
fendant is a person not residing in State (including foreign corpora-
tion not qualified to do busmess in State and foreign partnership which
has not filed designation) or cannot be found after due diligence, or is
concealing self to avoid service of summons. In latter instance, de-
fendant may request hearing upon 7 days' notice at any time after
levy. (C. C. P.538.5).
Gourts.-Writ may issue from any trial court where action filed,
* except small claims court. (C. C. P. llTha).
Bond.-Before notice of hearing and temporary restraining order
issued, plaintiff must file with clerk or judge written undertaking with
two or more sufficient sureties in amount of one-half of principal for
~which writ is to `be served, excluding attorneys' fees. Sureties must be
resident householders or freeholders or authorized surety company.
(C. C. P. 539, 1057).
Issuance of TVrit.-1'\~rit of attachment may be issued to any county
~n State, or to several counties at once, and may be telegTaphed. (C.C.
P. 540~ 1017).
Property `Sv.b~ect to Attach?nent.~With respect to domestic and
* foreign corporations and partnerships, all corporate and partnership
property are subject to attachment. With respect to individuals en-
gaged in a trade or `busIness, following property may be attached: (1)
~Inventory; (2) accounts, contract rights, chattel paper, and general
intangibles con~isting of any right to payment of money exceeding
`SiSO: (3) `bamik accounts and other deposit accounts except first $1,000
in any single bailk or branch bank; (4) securities; (5) eqthpment; (6)
real estate. All of property of nonresident persons (including non-
qualified foreign corporations and foreign partimerships which have
not filed a designation) and ersons who cannot be located is subject
to attadhment. (C. C. P. 537.3). Earnings of defendant for his per-
sonal services are exempt from attachment. (C. C. P. 543; C. C. P.
690.6). Other exempt property is designated in C. C. P. 690 et seq.
Prevc'ntion or D~sso1ution of Attaciimemt,-Attachment may be de-
feated by homestead declaration before judgment becomes lien (58
CaL 1), and is dissolved `by death (29 Cal. 359), except where defend-
`ant transfers propertybefore death (94 Cal. Apn. 31, 210 Pac. 458).
Re7cc'se of Pro p~1 tv of S ia'e Defenc7an& -~~men )ioperty is or is
about to be attached, defendant may secure its release by giving under-
takine of at least two suffi~ient sureties, or by deposit of sum of money
sufficient to satisfy demand plus costs actually incurred to time of
undertaking or 25% of plaintiff's demand, not to exceed $1,000, `or by
deposit of sum of money equal to value of property to be attached.
`Such undertaking must `be `approved by court issuing writ, or if writ
Is from another county, then by court of similar jurisdiction in county
-where levy'made. (`C. `C. P. M0~.
PAGENO="0097"
89
l?e7ea.se of Property of One of Se~veraZ Defendants.-In event action
is against more than one defendant, any defendant whose property has
been or is about to be attached in such action may give undertaking
which must first be approved, as a~ove, or may deposit such sums of
money, and such undertaking or such deposit shall not subject such
defendant. to or be answerable fqr any demand against any other
defendant nor shall officer thereby be prevented from attaching or be
obliged to release from attachment, any property of any other defend-
ant: provided, however. that such defendant, at time of giving such
undertaking. or depositin~ such sum of money, shall file with officer
statement. ~lulv verified m~der oath, averring and declaring that other
defendant or defendants in action has or have not any interest or claim
of any nature whatsoever in or to said property. Such statement must
further contain character of such defendant's title and manner in which
he acquired title to such attached property. Such undertaking, before
release of property, must be approved in same manner as for release
of property of single defendant. (C. C. P. 540).
Le ry.-Personal property capable of manual delivery, if levied on,
must be taken into custody of officer. When levy made on personal
property. other than money, or vehicle required to be registered under
Vehicle Code. belonging to going business concern, officer must, if de-
fendant consents. place keeper in charge at plaintiff's expense for at
least ~ days. after which officer shall take property into custody,
unless other disposition is made by court or parties. (C. C. P. 542). In
case of growing crops copy of writ, description of property and notice
of attachment must he recorded as in case of real property. Real prop-
ertv is attached by recording with recorder of county where situated
copy of writ with description of property attached, and notice of
attachment, and leaving similar copy of writ, description and notice
with occupant, or in his absence with employee, agent or family mem-
ber, if such person be of suitable age and discretion, or, if no occupant,
by posting same in conspicuous place on said property. If record title
to property in name of person other than defendant, notice must state
that property and interest of defendant therein is attached, and must
be given to such person or left at his residence, if known and within
county. Notice must also be served oii occupant, or if none, posted as
above. Attachment of investment securities (including shares of stock
in corporation) is governed by Uniform Commercial Code. (Com'l. C.
~31fl. Debts, credits, judgments and other personal property not ca-
pable of manual delivery are attached by leaving with person owing
such debt, or with person having such credit or other property under
his control, copy of writ, along with notice that debts or property
attached in pursuance of writ.
There are special provisions relating to attachment of debts owing
by certain financial institutions, including banks, savings and loan
associations. and title companies, and to attachment of checks, drafts,
and money orders which are in possession of defendant and payable
on demand. (C. C. P. 542).
Ii~dcmuity.-If property levied on is claimed by third person by
verified claim served upon levying officer, such officer must release
property, unless plaintiff, within 5 days after written demand by
officer made by registered or certified mail, gives officer undertaking
51-207-75----7
PAGENO="0098"
90
by two sufficient sureties; in a sum equal to twice value of property
levied upon; and officer is not liable for damages to third persons, un-
less such claim is made. (C. C. P. 689).
Priorities.-All attachments are to be satisfied according to their
priority in time. (13 Cal. 335).
Lien of attachment upon real property attaches upon recording of
copy, description and notice with recorder of required county, but ex-
pires in 15 days unless officer completes execution of writ within that
time. Such lien is merged in lien of judgment recovered by plaintiff.
If judgment is not recovered within 3 years, lien of attachment
will expire unless renewed by motion made not less than 5 nor more
than 60 days before expiration of said 3-year period. Certified
copy of order so extending such lien must be recorded before expira-
tion of existing lien with recorder of county where attached real
property is situated. Such extension may be for not longer than `2
years (C. C. P. 542a).
Life of Attachment of Personalty.-Attachinent of personal prop-
erty ceases to be effective and property must be released 1 year after
date of levy of writ unless notice of readiness for trial is filed or judg-
ment is enter~d against defendant within that period. One year period
may be extended by court upon motion forsuch additional periods as
court may direct. (C. C. P. 542[c]).
Sale of Pro perty.-If property attached is perishable, or if court is
satisfied that sale thereof will be for interest of all parties, property
may be sold as if under execution and proceeds held by sheriff or de-
posited in court to await result of action. (C. C. P. 547-48). Specific
provision relating to cultivating, caring forrn harvesting, packing and
selling attached growing crops is contained in C. C. P. 542.
Di$charge. and Release.-After levy of attachmei~t any defendant
who has appeared in action may. by order of court, have same dis-
charged, upon executing undertaking that in case plaintiff recovers
judgment against such defendant, he will redeliver to officer property
attaëhed, or, in default thereof, pay its full value to plaintiff, not ex-
ceeding amount of such judgment. (C. C. P. 554-55). On appeal, stay
of enforcement, accompanied by sufficient bond will entitle defendant
to release, which may be recorded. (C. C. P. 553.5, 560). Return of
writ and recording of discharge or release are provided for in C. C. P.
559.
Third party claims to personal property attached may be made in
same manner as is provided for third party claims to property after
levy under execution. (C. C. P. 549). (See also Executions'). Nonresi-
dent who claims property attached must make written ci aim verified
by his oath, setting out his title thereto. his right to possession thereof.
and stating grounds of such title, which claim should be forwarded
here and served on officer holding goods. (C. C. P. 689).
Colorado Law Digest
Attachment
Actio'nB in Which Allowed.-In courts of recordattachments are al-
lowed in actions on contract, express or implied, or in tort actions if
the tort is committed by a nonresident against a resident. (Rule 102).
Courts Which May Issue W~'it.-District or county court (Rule 102;
77-5-2) may issue writs of attachment.
PAGENO="0099"
91
Agcthi~st Whom Writ May Issue.-In a court of record a writ may
issue against: (1) A nonresident~; (2) a foreign corporation; (3) a
domestic corporation whose chief office is out of the State; (4) a de-
fendant who conceals himself or has been absent from the State for 4
months. on condition that the indebtedness or claim for damages has
been due during said period; (5) a defendant who is about to remove
his property from the State with~intent to delay creditors; (6) a cle-
fendant who has fraudulently conveyed a property to delay creditors;
(~) a defendant who has fraudulently concealed property to delay
creditors; (S) a defendant who is about fraudulently to convey prop-
ertv to delay creditors; (9) a. defendant who has departed or is about
to depart from the State with int~ntion of moving property from the
state; (10) a defendant who has refused to pay the price of an article
delivered which he should have paid for upon delivery; (11) a defend-
ant who has failed to pay for work done which should have been paid
at completion of said work; and (12) a. defendant who has fraudu-
Jentlv contracted the debt or fraudulently procured money or property.
(Rule 102-h).
C70um9 oi~ TFhieli. a TVrit May Issue.-In a court of record, .except in
the case of a nonresident, a foreign corporation and a. domestic corpo-
ration whose. office is out of the tSate, a. writ may issue upon debts or
liabilities not yet due, provided that upon obtaining judgment the
defendant shall receive interest due from the time of judgment until
the time the debt or liability would become due. (Rule 102-o).
Gio unds.-See supra. subhead Against W~hom Writ May Issue.
Pro~eedings to Obtain.-In a. court of record. in order to obtain a
writ of attachment. the plaintiff must file an affidavit stating the cause
of action. that it is an action in which attachment is allowed, and that
the defendant. is a. persoii against whom a writ of attachment may
issue. (Rule 102-h). Tie writ of attachment must be served as provided
by the rules for service of proce~s, except that if personal service be
made. in Colorado it must be made by the sheriff. (Rule 102-f). Within
20 days a.fter service the defendant, by affidavit, may traverse the
plaintiff's affidavit, and if the pi~untiff shall substantiate one of the
causes alleged in the affidavit, attachment shall issue (Rule 1O2-p); if
the traverse affidavit shows that the evidence does not prove a cause
alleged in the plaintiff's affidavit, but another cause, then on motion the
plaintiff's affidavit may be conformed to proof (Rule 102-q).
Attachment Boncl.-In a court of record, the plaintiff must give
bond for double the amount claimed conditioned that, if the court finds
the plaintiff not entitled to attaáhment, the plaintiff will pay costs
awarded the defendant and damages sustained by the wrongful attach-
ment. (102-c). Whenever it shall appear to the court that the bond is
insufficient, the court may order another one and if the plaintiff fails to
comply within 20 days, the writ of attachment must be dismissed.
(Rule 102-z). H .
Levy.-In court of record the sheriff to whom the writ is directed
must execute upon real estate by filing a copy of the writ together with
a description of the property aitached with the recorder of. the county,
and upon personal property by taking it into custody. (Rule 102-g).
lhen -Attachment liens on i eal estate continue for 6 years unless
the judgment be sooner satisfied (77-5-3), and a ceitificate that levy
PAGENO="0100"
92
lies been made upon real estate must be filed in the office of the recorder
in the. county where the land is situated (77-5-1).
Release of Froperty.-In a court of record a writ of attachment will
not issue if the defendant gives sufficient security to pay the judgment
(Rule 102-a) ; after the writ of attachment has been levied the defend-
ant may post a bond in sums fixed by the sheriff, not less than the value
of the piopert3r attached, and upon posting this bond the property
subject to the attachment must be released (Rule 102-x).
&ile.-Where perishable property is attached, any party to the ac-
tion may apply to the court for a sale thereof, and upon sale the pro-
ceeds must be deposited with the clerk of the court. (Rule 102-s).
Th&d Pcivty Claims.-In a court of record no final judgment may
be rendered until after 30 days after the attachment has been made,
and any creditor within the 30 days may file an affidavit, setting forth
his claim' against the defendant, and must then be made a party plain-
tiff with the same remedies as the original plaintiff (Rule 102-j [1]),
and a judgment creditor may, upon motion without filing an affidavit,
be made a party plamtiff having like remedies as the original plaintiff
(Rule 102-j [2]). When an additional creditor is made a party, a dis-
missal by the first attaching creditor of his cause of action does not
operate as a' dismissal as to any other creditor. (Rule 102-k). Upon
final `judgment each creditor takes pro rata. from the money realized
from the attachment proceedings, provided that when the property
is attached while the defendant is removing the same or secreting the
same for the purpose of defrauding creditors, the court may allow the
creditors whose diligence procured the property a priority over other
attachments or judgment creditors. (Rule 102-1). Any third person
claiming property attached may intervene and, in case judgment is
in his favor, may recover damages by reason of attachment. (Rule
102-r).
Connecticut Law Digest
Attachment
Actions in Which Ailowed.-TJpon the original writ in any action
for recovery of money, but no attachment may be made in an action
for slander, libel, or invasion of privacy except upon a court order.
(52-279).
In TVhose Favor Writ May Issue.-There is no distinction in favor
of local creditors.
The court may, in its discretion and upon posting of a bond with
surety, permit a defendant filing a set-off or counterclaim to procure
attachment of the plaintiffs goods (52-282).
Aqainst TVhom Writ May Issue.-Writ may issue against either
resident or nonresident defendant.
Claims on Which Writ May Issue.-It is not necessary that the
claim sued on should be insured or payable within the State.
Grounds.-Attaching party at hearing must show probable cause
that his claim will be sustained. (Public Act 73-431, ~ 4).
Proceedings to Obtain.-Plaintiff must apply for prejudgment
remedy, submit affidavit and serve defendant with application at least
4 days prior to required hearing. Temporary restraining order may
be obtained. Hearing's sole purpose is to ascertain whether probable
cause exists to sustain plaintiff's claim. Attachment may issue without
PAGENO="0101"
~93
hearing where defendant is: (a) Nonresident; (b) avoiding service
of process; (c) about to leave State; (d) fraudulently concealing or
disposing of his p~'operty; (e) insolvent by his own statement. Pro-
cedure not applicable to commercial transactions; as distinguished
from consumer transactions. if waiver previously secured. (Public Act
~-4:3i: 73-616. § 65). Defendant~ has a right to appear and be heard
at hearing. If application is granted. documents are returned to plain-
tiff's attorney, who then signs writ, attaches property pursuant to
court's order. serves writ upon defendant and returns it to court. If
plaintiff does not serve writ, entry fee may be returned. (Public Act
73-431. ~4).
Attachments secured prior to May 30, 19Th, shall retain their effec-
tiveness by ffling a motion for a l~earing. (Public Act 73-431. §~ 4, 7).
F~ïm~.-Following forms are to he used:
Forms
A pp7~cation foi Pie judgment Remedy.-
To the Court of
The undersigned represents:
1* That 0 0 is about to coimnence an action against of
(give name and address of defendant) pursuant to
the attached proposed unsigned Writ, Summons, Complaint and
Affidavit.
~. That there is probable cause that a ~udginent will be rendered in
such matter in favor of the applh~ant and to secure such judgment the
appitcant seeks an order from this court directing that the following
prejud~ment remedy be issued to secure the sum of $
a. To attach the following de~cribecl real property of the defendant
located in the Town of (Description)
b. To garnishee as lie is the agent, trustee, debtor of
said defendant and has concealed in his hands the goods, effects and
estate of said defendant and is indebted to him.
c. (Other Type of Prejudgment Remedy Requested.)
Name of Applicant
By
iHis Attorney
Order.-
The above application having been presented to the court, it is here-
by ordered, that a hearing be held thereon on at a.m.
and that the plaintiff give notice to the defendant of the pendency of
said application and of the time~ when it will be heard by causing a
true and attested COPY of the application, such proposed unsigned
writ. summons. complaint., affidavit and of this order to be served upon
the defendant by some proper officer or indifferent person on or before
. and that due return ~f such service be made to this court.
Dated at this day of , 19_.
Clerk of the Court
Summons.-
To the Sheriff of the County of~ . his deputy, or either
constable of the Town of , in said County,
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94
Greeting:
By authority of the State of Connecticut, you are hereby commanded
to serve a true and attested copy of the above application, such un-
signed proposed writ, summons, complaint, affidavit and order upon
, of , by leaving the same in his hands or at his usual
place of abode on or before
Hereof fail not hut due service and return make.
Dated at this day of , 19~.
Commissioner of the Superior Court
Attachment bond is not required, except in case of defendant filing
set-off or counterclaim (52-282), although cost bond (see Costs) may
he required in a proper case.
Times for issuance of TVrits.-Attachment may issue on commence-
ment of action only upon court order or pursuant to temporary re-
straining order. (Public Act 73-431, § 2). See subhead Proceedings to
Obtain, supra. It may also be made subsequent to the commencement of
action by order of the court in which the action is brought, which order
must be served and returned in the same manner as an original writ
of attachment. (52-281).
When the court cites in a new part.y to an action pending before it,
it may include in such citation an order for a supplemental attachment
against the property of such new party (52-103).
Upon amendment of defective process, if court after notice and hear-
mg finds that parties had notice of pendency of action and have not
been ~rejudicecl by the defect, attachment made by original process is
preserved as though proper from date of service of original process.
(52-72).
Fropert'~,' Subject to Attachment.--Attachment may be levied on any
estate of the defendant not exempt. (52-279; 52-280). No garnishment
in excess of $5,000 on any checking account is effective except upon
court order. (52-289a). As to exempt property, see topic Exemptions.
Equitable interests (114 Conn. 79. 157 Atl. 638), future interests (71
Conn. 149, 41 AtI. 284), and partial interests in laud (68 Conn. 1, 35
Atl. 804) are subject to attachment if sufficiently definite to be capable
of appraisal; but security interests such as interest .f vendor or mort-
gagee may be reached only by garnishing debt secured and filing certifi-
cate of garnishment for record with town clerk fOr town where the land
is situated (52-346; 81 Conn. 419, 71 Atl. 509). Income from trust fund,
if available to defendant by the terms of the trust (see Trusts), may
be availed of by equitable decree requiring trustee to pay income to the
creditor. (52-321). Interest of partner in partnership property may be
attached, but any party to action or partner may, by bill in equity,
cause dissolutioll of attachment and division of partnership property
on equitable principles. (52-299).
Motor vehicle or railroad car may not be attached on mesne process,
except upon order of a judge. (52-288').
Fixtures of telephone, telegraph, light or iower companies are at-
tachable in manner and effect the same as real estate by lodging a cer-
tificate of attachment with the secretary of state. (52-287).
PAGENO="0103"
95
Puliie Servan.ts.-No attachments of property of municipal offi-
cials, policemen, or members, teachers, or employees of board of edu-
cation or members of any other municipal board or commission, in
action involving official conduct, except on court order, or, in case of
po11~eman. on dismissaL (32-2T9).
Excessive attachments may be reduced. (52-302).
L~: .~~.-Attachment is macic under order of court after hearing or
in special circumstances by authority subscribing writ directed to
sheriff or constable. (52-Sd; 52-~0, a~n'd PA 183, § 82; Public Acts
T:~-43i'~. Sheriff or constable makes attachment by serving writ of at-
tachnient on defendant, and. in case of personal property by seizmg
and removing property where practicable (52-280; 107 Conn. 300),
and. in case of real estate (52-285) or leaseholds (52-286) by lodging
in office of town clerk in town where real estate is located a certificate
that he has made such attachment and a true anti attested copy of
process authorizing same. (32-285).
Estate of nonresident defendant is attached as above described, a
copy of the process being left with the agent or attorney of the tie-
fendant within the state. or in the absence of such agent or attorney,
with the pe~on in charge or possession of the estate attached; if there
is no person in charge or possession of the estate attached, the court
may order reasonable notice to be given to the defendant, anti such
notice. havin~ been given anti proved, is deemed sufficient service of
p~ocess. and such attachment th~reupon becomes effective. (52-284).
Not appitcable to garnishments. (19 Conn. 17; 52-88).
Shares of stock in a corporation, together with the dividends clue
thereon. may be attached by the officer leaving attested copies of the
urocess and complaint at the office of the corporation, and the officer in
charge thereof must issue to hirn~ a certificate of the amount of stock
owned. the incumbrances thereon and the dividends due; but no such
attachment shall he valid until the stock certificate be seized by the
officer, or be surrendered to the corporation. (52-289).
Attachments of certain cumbersome articles not moveable without
manifest injury may be effectual without removal thereof if properly
filed within 48 hours in town clerk's office in town where property situ-
ated and with secretary of state. In some cases, posting on building
containing property required. (52h283).
Lie;~.-The attachment constitutes a lien on the property attached
to secure paymeiit of attaching creditor's claim, anti priorit~~ of levy
of attachment gives priority of lien. (36 Conn. 578). A real estate at-
tachment is not a lien after 15 years unless reduced to judgment and a
judgment lien filed. (52-327).
Attachment holds until the execution is levied, provided the levy is
made within 60 days after final judgment when personal estate is at-
tached, and within 4 months when real estate is attached. (52-328).
&ile.-Upon order of court, perishable property or property diffi-
cult or expensive to care for and preserve levied on under attachment
may be sold (52-293), provided the plaintiff gives bond with surety in
double the value of such property. conditioned on prosecution to effect
and payme~~t of damages sustained by sale at less than appraised value
(~2-2~4). T~ie proceeds of such sale are paid into court and are there
subject to attachment by other creditors. (52-297). Defendant may
PAGENO="0104"
96
take the proceeds at ai~y time during suit upon giving bOnd with
surety conditioned ~n ~efuncl in the event f adverse udgment.
(52-298).
Pi~iorities.-Where several attachments of the same property are
made, the debt and costs of suit of the first attaching creditor must
first be fully satisfied, and subsequent attaching creditors are paid in
the order of their several attachments. (85 Conn. 573, 84 AtI. 119; 36
Conn. 578).
P1~o pert~J of Nonresiclents.-The proie1t~T of a nonresident defend-
ant may be attached in the same manner as other property is attached
except that the writ and complaint is served by leaving a copy with the
defendant's agent or attorney in State, if known and by giving such
notice to said defendant as court, on application made to it, shall
require. (52-284).
Release of Property.-Defendaflt may secure release of attached
Property and dissolution of attachment lieu upon substitution of surety
bond or lien on other property which has equal or greater net equity
value than amount secured b attachment (52-304) all persons inter-
ested may be heard in relation to amount and sufficiency of bond or
substitute lien, and amount must equal value of estate which process
directed to be attached, except in tort action for unliquidated damages
in which case reasonable bond or substitute lien is sufficient (52-307).
Lien on real estate of surety on bond may be obtained by filing in office
of town clerk. (49-86).
Dissolution.-When attachment of record is for any reason of no
effect, any person interested in estate may require plaintiff (52-322)
or clerk of court (52-324) to file certificate of dissolution with town
clerk. If plaintiff fails to execute and deliver a release within 30 days
after demand, he is liable to person aggrieved at $50 per week, up to
$1.000. (49-8; 49-13).
When the attachment is dissolved, the defendant must file a certifi-
cate of dissolution signed by the plaintiff or the plaintiff's attorney
with the town clerk if real estate was attached, with the served officer
of the corporation if corporate stock was attached, or with the
garnishee in case of goods or effects in hands of garnishee, before the
corporation or garnishee can be held liable for refusing to transfer
stock, pay debts or return goods and effects. (52-310).
Bond.-By application to court defendant may secure dissolution of
attachment hen upon substitution of a surety bond or lien on other
property which has equal or greater net equity value than amount se-
cured by attachment. (52-304). Amount and sufficiency of bond or sub-
stitute lien are subject to hearing, but amount must equal value of
estate which process directed to be attached, except in action or tort for
recovery of unliquidated damages where court may take bond or sub-
stitute lien for amount deemed reasonable. (52-307).
Delaware Law Digest
Attachment
Actions in Which Allowed.-In both foreign and domestic attach-
ment actions the writ will issue on contract or in tort.
Oo~rts Whwh May Issue TVrit.-In foreign and domestic attach-
]neflt, superior court has jurisdiction in any amount exceeding $50
PAGENO="0105"
97
(10-3501) and justices of peace up to $1,500 (10-9590). Common
pleas court has jurisdiction in foreign attachment not exceedmg $1,000.
(10-1311).
In TV/iose Favor Writ May Issue.-Any plaintiff may secure an
attachment where proper grounds therefor are shown; there is no dis-
crlminatlon in this respect against nonresidents or foreign corpora-
tions. Provision is made for the attachment of shares of corporate
stock or a~~v interest therein (8-324).
1T / 0/h i ~ lIiii I iíe -Wuts of ~tt~tchment `ire know~i
domestic and foreign. Domestic writs are those issued against resi-
dents of the State or domestic corporations. Foreign writs are those
issued against i~onresidents or foieign corporations. Banks, savings
institutions and loan associations doing business in the State are ex-
empt. Insurance companies are liable only as to amounts clatmeci or
payable under policy. (10-3502).
An unincorporated association ~nciuthng a. partiiership is liable to
attachment in am- action in its coniiiloii name. (10-3504).
T~ /~ ~J / / llriy ~ ot I~sz'~ -Pi.opeit~ title to which
nor vet passed to judgment. debtor not subject to attachment.
1 -3508
(~ oeed~.-\\rits of both domestic attachment against a resident or
a domestic corporation and writs of foreign attachment against a non-
resident. may issue by order of cdurt, on proof satisfactory to court.
An affidavit is satisfactory for this purpose. (Super. Ct. Rule 4).
Domestic writs may issue against a resident or domestic corporation
upon proof satisfactory to court th~tt defendant cannot be found or that
defendant. is justly indebted to plaintiff in an amount over $50, and
that he has absconded. is about to leave the State. or left. the State. with
jntent to defraud creditors or elude process, as is believed (10-3501).
Foreign writs may issue against a nonresident upon proof satis-
ractorv to court that. defendant cannot be found, that plaintiff has good
cause ot action against defendant in amount exceeding $50, and that
defendant. resides out of State (10-3506). Foreign writs may issue
against, foreign corporation upon proof satisfactory to court that de-
fendant. is a corporation not created by, or existing under laws of
Delaware, and that plaintiff has a good cause of action aga.inst defend-
a.nt in an amount exceeding $50 (10-3507).
Procedure to Obta.in.-Affidavit filed in Superior Court with corn-
plamt setting forth statutory grounds and other facts required by
court. rules. (Sup. Ct.. Rule 4).
A'e'~1ei~ht Bohd.-Xo mesne writ of attachment will be issued
unr~l plaIntiff gives bond conditioned that if suit is not prosecuted with
effect. or if judgment rendered therein is in favor of defendant, plain-
tiff will pay any and all costs which may be awarded to a defendant,
together with any and all damages, not exceeding amount of the bond,
which a defendant in the suit may have sustaine.d by reason of such
attachment. Amount and surety discretionary with superior court.
(Super. Ct. Rule 4).
Levy is to cover both-real and personal property. (10-3508).
Ihdemnrty.-Statute gives superior court rule, power over indemnity
(l~-3512) See subhead Attachment Bond above.
L;~~.-1Vrit is a lien on goods anti chattels actually levied on from
time of levy
PAGENO="0106"
98
Priorities.~Writs of attachments are to be executed by sheriff in
order in which received by him.
Release of Property.-The writ may be discharged by furnishing
security to the amount of the value of the attached property or the
amount claimed in the suit, whichever is the lesser. If a nonresident
enters general appearance and moves to release property, court must so
order unless plaintiff shows other circumstances which threaten satis-
faction of any judgment obtained and unless plaintiff gives bond in
amount at least equal to current value of property. (Super. Ct. Rule
4).
Sale.-If attached property is perishable court may order attaching
officer to sell same. No sale without court order. (Super. Ct. Rule 4).
Third Party Claim.-Statutory provision made for auditors in
domestic attachment cases. (10-3521-22).
Vacation or Modiflcation.-Nonresident may generally get property
released on general appearance, property in any event will be released
on furnishing security. (Super. Ct. Rule 4).
District of Columbia Law Digest
Attachment
Attachments may be levied on the lands and tenements and personal
chattels of defendant not exempt by law, whether in defendant's or a
third person's possession, whether defendant's title is legal or equi-
table, and upon his credits in hands of third person whether due or not,
and upon his undivided interest in a partnership. (~ 16-507).
While attachment may be issued upon a judgment in aid of execu-
tion (~ 16-542), the following pertains to attachment before judgment:
Actions in TV1~ich Allowed.-In any action for the recovery of spe-
cific personal property, or a debt, or damages for the breach of a con-
tract, express or implied. (~ 16-501).
Courts Which May Issue Writ.-District and. superior courts
(~ 16-501, 533).
in Whose Favor Writ May issue.-Any plaintiff.
Against Whom Writ May Issue.-Any defendant.
Claims on Which Writ May Issue.-On matured claims (~ 16-501)
or claims where debt is not due and payable (~ 16-503).
Grounds for attachment are that defendant (1) Is a foreign corpo-
ration or a nonresident; (2) has been absent from District for at least
6 months; (3) evades service of process; (4) has removed, or is
about to remove, some or all of his property from District so as to
defeat just demands against him; (5) has assigned or secreted his
property, or is about to do so, in fraud of creditors; or (6) fraudulently
contracted the debt or incurred the obligation. (~ 16-501).
Proceedings to Obtain.-An affidavit must be filed by plaintiff show-
ing grounds for attachment, details of his claim, his right to recover,
and if action is to recover specific personal property, value of such
property and probable amount of damages; and, if action is for a debt,
amount thereof: and. if action is for damages on contract., showing in
detail the breach of contract a.nd actual damage. (~ 16-501).
If the debt is not yet due the affidavit of the plaintiff must be sub-
stant.iat.ed by testimony of one or more witnesses in relation to the
amount and justice of the claim, time. it will become due. and must also
PAGENO="0107"
show either that defendant has removed, is removing or that he intends
to remove a material Part of his~ property from District to defraud
creditors. Judgment. may not be entered before debt matures. (~ 16-
Attae1u;~ent Bond.-Plaintiff must file a bond with surety approved
by clerk of court with penalty of ~wice amount of his claim or value of
snecified property to be levied upon, whichever lower. (~ 16-501). Offi-
cer who serves writ. U.S. marshal, will require a bond for protection of
himself against making a false levy where a seizure of personal prop-
ertv is to be made.
Le vy.-An attachment is sufficiently levied on real estate by said real
esrate being described by the marshal in an endorsement on the writ of
attachment. to the following effect:
Levied on the following estate of the defendant A. B., to-wit: (here
des~ribed property) this day of
C. D. Marshal.
and b serving a copy of the writ bearing such endorsement and a no-
t~ce to the defendant to appear, upon the person, if any, in possession of
the property. (~ 16-508).
An attachinent is levied on personal chattels by the marshal taking
the same into his possession and custody unless the defendant or person
in possession gives an undertaking, in which event attachment is suffi-
cienthv levied by the taking of the undertaking. (~ 16-509).
An attachment is levied on credits of defendant in hands of garnishee
ot' upon undivided interest in partnership by serving garnishee or
lartner with copy of writ and interrogatories and a notice that any
property or credits in his possession are attached. (~ 16-511).
J;w1e~ ;~t?J.-The officer who serves the writ., the United States mar-
shaL will r~qnire a bond for protection of himself against making a
false levy where a seizure of personal prope.rty is to be made.
Lien.-Attachment is a lien on property from the date of delivery of
the writ to the marshal. (~ 16-507).
Priorities are according to the dates when the attachments were de-
livered to the. marshal. (~ 16-507).
Release of property or credits may be secured by defendant or per-
son who had possession of property or credits. by furnishing an under-
taking with security to be approved by the court to pay any judgment
recovered against him. (~ 16-510).
Sale.-After judgment of condemnation, specific property may be
sold under writ of fieri facias to satisfy demand of plaintiff. (§ 16-525).
Prior to final decision the court may order a sale of property if per-
ishable or if for other reasons a sale appears expedient. (~ 16-518).
Third Party Oiaims.-A third party may file a petition in the cause
claiming the personalty attached, and the matter must be tried to
determine the ownership (~ 16-523).
lacution or ]Iodificution.-Defendant (~ 16-506), as well as a gar-
nishee where attachment is based on fraudulent conveyance (~ 16-529),
may contest right of plaintiff to writ by filing affidavits traversing
facts set forth in plaintiff's affidavits. Motion to quash writ may be
heard on 3 days' notice (~ 16-506). Also, defendant or any garnishee
may plead to attachment, and raise issue to be tried by court
(~ 16-520).
PAGENO="0108"
100
Interrogator'ies.-Garnishee may be required to answer interroga-
tories under oath concerning defendant's property in his possession
or his indebtedness to defendant. (§ 16-521). Plaintiff may traverse
such answers and have issue tried by court. (~ 16-522).
Judgment.-If defendant has been served with process, final judg-
ment may not ha entered against garnishee until action against de-
fendant is determined. (~ 16-524). Where plaintiff recovers judgment
against defendant, plaintiff may have judgment of condemnation of
property attached or of proceeds from sale of property (~ 16-524,
525) or judgment of condemnation against garnishee for amount of
defendant's credith in his hands or where undertaking has been pro-
vided judgment of condemnation of property and against garnishee
and his sureties (~ 16-526, 527).
Payment of salary or earnings before due for the purpose of pre-
venting or avoiding an attachment or garnishment against them is
void as to an* attaching creditor. After the service of a writ of attach-
ment or garnishment on a judgment against an employer, any advance
payment of salary or. earnings made within a period of 6 months
after the service of the writ or before an earlier satisfaction of the
judgment is, as to an attaching creditor, presumed to be for the
purpose of avoiding the attachment. (~ 16-513).
Florida Law Digest
Attachment
Actions in Which Allowed.-Attachment lies before or after judg-
ment in actions ex contractu in nature. (76.04 et seq.). Attachment not
available in tort actions except those arising from operation of boats,
vessels, etc. (76.32). Foregoing not affected by commercial code.
Courts That May Issue Writ.-Attachments are required to issue
from court which has jurisdiction of amount claimed by creditor, un-
less property to be attached is being actually removed from State and
creditor is unable to obtain process from proper court in time to pre-
vent such removal, in which case any judge may issue writ, making
same returnable to circuit or county court having jurisdiction of
amount claimed. (76.03).
In Whose Favor and Against Whom Writ May Issue.-Any credi-
tor may have an attachment against goods, lands and tenements of his
debtor in a proper case. (76.01). No restrictions on foreign corpora-
tions or nonresidents.
Claims on Which Writ May Issue.--See subhead, Actions in Which
Allowed, supra.
Grounds.-Attachment may be procured upon filing a motion there-
for, which shall not be verified or negative attachment debtor's exemp-
tions. (76.08). When debt is due, motion shall state amount of debt
that is actually due, and that movant has reason to believe that de-
fendant will fraudulently part with his property before judgment,
is actually removing his property out of State of Florida, is about to
remove his property. resides beyond limits of State, is actually moving
himself beyond limits of State. is about to move himself out of State,
is absconding, concealing himself, or secreting or fraudulently dispos-
ing of his property, is actually removing himself beyond limits of
judicial circuit in which he resides, or is about to so remove himself out
of limits of such judicial circuit (76.09, .04).
PAGENO="0109"
101
When Debt Not Due.-Motioi~ shall state amount of debt ~r de-
mand; that it is actually an existing debt; and shall state specifically
such special ground or grounds: that debtor is actually removing his
property beyond limits of State, that he is fraudulently disposing of
his property for purpose of avoiding payment of his ;just debts or
demands or that he is fraudulently secreting his property for such
purpose. In addition, plaintiff must produce before officer granting
attachment proof, by affidavit (other than his own) or otherwise,
satisfactory to such officer, of existence of such special ground.
~0.05. .10).
fl7~cn Attach mci?t in Aid of Uhattel 1foitgage Foi'ec7osure.-
Motion shall describe property dii which mortgage exists, and state
that complaint has been filed to foreclose mortgage, amount of debt
secured by mortgage, that it is actually due, and that movant has
reason to believe that property or part of same: (1) Will be concealed
or disposed of so that it will not be forthcoming to answer judgment
or decree of foreclosure; (2) will be removed beyond jurisdiction of
court; (3) is perishable and is being used and consumed; or (4) has
been disposed of without consent of holder and owner of mortgage,
staring who has property, if knowii, or that affiant does not know who
has same. (~G.11. .Ofl. Where attachment is on ground (4) and holder
of property is unknown. attachment bond must be payable to State.
(T6.12).
Proceedings to Obtain.-Practice in suits commenced by attach-
ments are same as other suits at. law. See R. C. P. 1.010.
Attachment Bond.-No attachthent may issue until person applying
for same, his agent or attorney, has entered into bond, with two
sureties. payable to defendant. in at least double the debt or sum de-
manded. conditioned to pay all costs and damages which lie may siis-
tam in consequence of improperly suing out attachment. (76.12). See
subhead When Attachment in Aid of Chattel Mortgage Foreclosure,
silpra. regarding need for bond payable to State in certain foreclosure
circumstances. (76.12).
Lecy. ~ Priorities.-Levv~ of a writ of attachment does not
operate to dispossess tenant of any lands or tenements, but levy upon
real or personal property binds property attached, except against pre-
existing liens. Levies upon same property under successive attach-
ments have precedence as liens in order in which they are made. Levy
binds real estate as against subsequent creditors or purchasers only
from time of record by clerk of bircuit court in lien book of a notice
of levy and a description of property levied upon. (76.14).
Fpon statement in motion that defendant has property in a county
other than that in which suit is instituted, a writ of attachment may
issue directed to sheriff or other proper officer of county where said
property is, and said officer must execute writ and hold and dispose
of property as in other cases. (76.16).
Re~ease of Property.-Property attached may be restored to de-
fendant upon his giving a bond to officer levying attachment, payable
to plaintiff, with two sureties, in double value of property levied upon,
or double amount of claim if value exceeds claim; value to be fixed
by officer levying attachment, where such value exceeds claim. (76.18).
T~acat ion or J[odifieation.-Court to which attachment is returnable
is always open for purpose of entertaining motions to dissolve such
attachment, and if any allegation in plaintiff's affidavit which is
PAGENO="0110"
102
denied under oath in writing by defendant is not sustained and proved
to be true, such court will dissolve attachment. Issue joined .upon such
denial may be tried by a jury, upon demand of either party. (76.24).
Third Party Claims.-Attached property claimed by third persons
may be replévied, or a claim interposed therefor by filing with officer
levying attachment an affidavit made by claimant, his agent or at-
torney, that property claimed by him is his property, and by giving
of a bond, payable to plaintiff, with two good and sufficient sureties
to be approved by such officer in double value of goods claimed. (76.21;
56.16).
Georgia Law Digest
Attachment
Actions in TVhich Altowed.-Attachment may issue in all cases of
money demands, whether ex contractu or ex delicto if statutory
grounds exist. (8-102).
In Whose Favor Writ May Issue.-Attachment may issue on behalf
of any plaintiff, including a nonresident or foreign corporation. A
surety may have an attachment against his principal, but if surety has
not paid obligation, money raised on attachment must be paid to
obligee. (8-107).
Against Whom Writ May Issue.-Attachment may issue against a
foreign corporation doing business in the State (8-108) ; joint contrac-
tors and partners (8-106); administrator or executor of an estate
(8-105); or against any person or corporation if statutory grounds
exist (8-102).
Claims on Which Writ May Issne.-Attachment may issue for
money not yet due, but execution is stayed until maturity of the debt
(8-103).
Time for Issua'nce.-An attachment may issue at any time prior to
or during the pendency of suit (8-104) on any day of week including
Sunday (8-115).
Grou~2ds.-General grounds are that debtor: (1) Is a nonresident,
(2) is removing or about to remove without county, (3) absconds, (4)
conceals himself. (5) resists legal arrest. ~r (6) is causing his property
to be removed without State (8-101). These grounds do not result in
unreasonable seizure. (231 Ga. 157, 200 S.E.2d 703). Attachment may
issue against debtor who has sold. conveyed or concealed property
liable for his debts or threatened or prepared to do so, or made a fraud-
ulent lien on his property (8-401, 402). Real or personal property may
be attached for purchase price thereof (8-301, 302).
Proceedings to Obtain.-Creditor, his agent or attorney, or one of
joint creditors (8-110), must make affidavit before any superior, county
or city court judge, magistrate, justice of peace, or clerk of any court
of record showing ground for attachment and amount of debt claimed
(8-109).
Attachment Boiid.-Creditor must file bond in not less than double
amount of debt conditioned to pay damages and costs if attachment
not successful. (8-111). Bond. need not exceed $20,000 (8-111) but may
be increased by levying officer after hearing (8-113). Agent or attorney
making affidavit may sign bond for his principal. (8-111). Attorney
cannot be surety, nor can nonresident unless he owns real estate in
county. (8-112). .
PAGENO="0111"
103
Lev?,~.-Attachment may be levied on real or personal property of
defendant anywhere in State (8-114) including investment securities
where actually seized (109A-8-317); goods covered by a negotiable
document of title where document is not outstanding (109A-7-602)
and debtor~s rights in collateral (109A-9-311). See topic Commercial
Code. If property found in county other than that in which writ
issued. officer must make and certify copy and deliver same to officer
of county where property is and latter officer levies and makes return
to court. issuing attachment. (8-210). Levy on real estate must be
entered on general execution do~ket within 5 days of levy to bind
third parties. (8-906).
Ii~denz.n.ity.-No statutory provision.
L~i~.-Xttacliing creditor has lien created by the levy. (8-905).
Piioiitics.-Arnong attachments, first levied is first satisfied. As be-
tween attachment and ordinary judgment, judgment rather than levy
flxes lien except where attachment has been levied prior to filing of
suit resulting in ordinary judgment. (8-904, 905).
Ret'~i~~.-If debt exceeds $200.~ and in any case where defendant is
nonresident, attachment returnable to superior court of defendant's
last. residence as to residents of Georgia, and to any appropriate su-
perior court as to nonresidents. If debt does not exceed $200, attach-
ment returnable to next justice's Court of district where debtor resides
or last resided, which sits not less tha.n 10 days after issuance thereof.
Attachments returnable to superior, city and county courts governed
by same rules of procedure and practice governing all civil actions.
(~-1iT).
Rel~a~e o~ Piopei'ty.-Defendant may replevy property attached
by giving bond with security payable to plaintiff for not less than
doubie amount claimed or value of property. (8-701).
Third party claims may be asserted before or after judgment in
attachment suit. (8-806). Officer must return claim to court issuing
attachment except that claim involving land always returnable to
superior court. (8-801). Claimant may replevy property by giving
forthcoming bond to levying officer. (8-803). If claimant unsuccessful
and property does not bring enough to satisfy judgment, plaintiff
may sue claimant on bond for use and hire of property and deteriora-
tion in value, but may not recover more than enough to satisfy the
unpaid portion of the debt. (8-805).
T7acation.-Judgment may be, set aside for fraud or want of con-
sideration. (8-902).
Proceedings After A ttacliment.-Where attachment returnable to
superior, city or county court appearance day of such declaration to be
30 days after filing thereof. (8-117). See also topic Pleadings. Plain-
tiff may by written notice served personally on defendant at least 10
days before final judgment on attachment, bind defendant personally
and after service of notice, even though attachment be dismissed, plain-
tiff entitled to judgment on declaration filed on merits of the case.
(8-602). Should defendant replevy attached property or appear and
plead to merits, judgment will bind defendant personally though no
notice given. (8-602). Any defendant against whom an attachment
may issue, for recovery of demand which is not due, may plead a set-off
even if it is not due or is more than plaintiff's claim and recover judg-
PAGENO="0112"
104
ment. (8-604). Unless plaintiff gives notice, defendant replevies or
pleads to merits, a judgment in rem against attached property. may
be had.
Hawaii Law Digest
Attachment
Actions in Which Ailowed.-Attachment of either real or personal
property not exempt from execution may issue in any action on an
express or implied contract, including actions by nonresident or for-
eign corporation. (651-2).
Courts Which illay Issue TTTrit.-Circuit and district courts may
issue writ, except thai district magistrate may not have his writ served
in circuit outside one in which his district is situated nor may he issue
writ for attachment of real property. (651-1).
In Whose Favo? lVnit May Issue.-Plaintiff in action, including
nonresident or foreign corporation, may have property attached
(651-2).
Against TVho?n lVrit3[ciy Issue.-Property of defendant, or any one
or more of several defendants, may be attached, but not that of State
or political subdivision. (651-1).
Claims on TVhich Writ May Issue.-Before writ will issue, plaintiff,
or someone in his behalf, must file affidavit with clerk that defendant
is indebted to plaintiff, specifying amount of debt over and above just
credits and offsets, and that action is not prosecuted to defraud, hinder,
or delay any of defendant's creditors. (651-3). No statute or case in
Hawaii as to whether creditor may attach on unmatured or contingent
claim.
Grounds.-No statutory restriction.
Proceedings to Obtain.-At time of commencing action or after-
ward before judgment. plaintiff may have attachment by applying
to clerk of court in which action pending (district magistrate in dis-
trict courts [651-1]) (651-3), upon filing required affidavit (see
subhead Claims on Which Writ May Issue supra), filing bond and
additional security as required (see subhead Attachment Bond infra)
(651-4, 5), and upon approval of court (651-fl. Writ is directed to
any police officer. (Ibid.)
Attachment Bond.-Plaintiff must file bond in double amount of
claim, but not less than $50 in district court or $300 in circuit court,
together with affidavit of sureties (see topic Bonds). Bond is not re-
quired of State, municipalities, their officers or agents (651-4). Court
may, on plaintiff's motion reduce bond to one and one half times
amount of claim more than $50,000 or on defendant's motion require
additional security. (651-4, 5).
Levy.-Police officer is to levy on sufficient property, giving prefer-
ence to clearer title (651-7, 8), 20% greater in value than plaintiff's
claim (651-8).
Real property is attached by filing in bureau of conveyances true
copy of writ with officer's certificate that he has attached real estate
or defendant's interest in it, and describing land with convenient cer-
tainty. (651-9[1]).
Personal property capable of manual delivery is attached by taking
it into custody. (651-9[2]).
A security (see topic Commercial Code) is attached by actual seizure
thereof. (651-9 [3]).
PAGENO="0113"
105
Court may allow compensation to police officer. (651-8). Court may
appoint receiver (compensation to be out of that of police officer).
(651-14).
li~demndy.-Pohce officer may require indemnification (651-10).
L~e1~.-~\o statutory provision.
P~4ovitks.-Several attachments are executed in order received by
police officer. (631-11). Leases. mortgages, sales~ devices, etc. after at-
tachn~ent are void in law as agamst plaintiff in such cases. (634-66: 51
Hair. 164. 434 P.2d 116).
Rc7e~.se o~ Piopeit~'i.-Writ is discharged if action is discontinued,
dismissed. or if judgment is for defendant (631-16). by defendant fil-
ing a bond approved by officer having attachment or by clerk after re-
turn (651-lfl. or upon defendant's motion if writ improperly issued
(651-is). Order of discharge on real property is to be recorded in
same maimer as writ and expenses of attachment must be paid by
plaintiff (651-18).
Rthun.-Return is to be withiñ same time as is allowed for return
of summons. Return is to be accompanied with full inventory of prop-
ertv attached and certificate of proceedings inclorseci on writ (631-15).
on pla~ntiffs affidavit or on return of writ it ap-
pears that attachable property cannot be found. court may require at-
tendance of defendant to give relevant information on oath (651-12.).
Ale-Police officer maw sell perishable property. If in interest of
parties. court may. after liearing~ order sale of property. Sales are in
same mamier as execution (651-13).
Th hd Pait?J Cia im.s.-Xo statutory p1~ovision.
Faeation 01 JIoclfication.-See~ subhead Release of Property.
Idaho Law Digest
Attachment
Attachment is ancillary to action and in accord with statute. (8-501,
a~~fd i9~4. c.
Jct;oi~ ~ 1F/~ k1~ Allowed.-Attachrnent. can issue only in action on
judgment or express or implied contract for direct payment of money
not secured by mortgage, dcccl of trust, lien, or security interest.
(8-501).
Courts TV/iich May Issue TVrit.L_~All district courts.
Cia?ms on TVhich lVrit May Issue.-Debt must he due, but it need
not be payable in this State (8-501).
Ii? TF/iose Fa~oi~ Writ May Issue.-In proper case, any plaintiff, in-
cluding nonresident or foreign cOrporation may obtain attachment.
Grounds for attachment aire: (1) That contract or debt sued for
arose. on contract. express or implied, for direct payment of money,
and has not been secured by mortgage. deed of trust, security interest,
or lien, on real. or personal property; or if so secured, that such secu-
rity has become valueless, without any act of plaintiff or person to
whom such security was originally given; or (2) that defendant is a
nonresident. (8-301). Foreign cOrporation is nonresident within the
latter provision. (26 Ida. 703, 146 Pac. 101).
Pioreeiiinqs to Obtain.-Plaintiff shall file application for writ
supported hr affidavit. (8-302: 1974. c. 307). Court shall issue order
toshow cause why writ should~ not issue and for hearing date, no
5i-~2O7-75----8
PAGENO="0114"
106
sooner than 5 days, and direct time within which service on defendant
be made, (8-502[b]; 1973, c. 266).
Prior to hearing, court may, nevertheless, issue writ if (1) jurisdic-
tion depends on attachment of defendant's property in State; (2)
property is a negotiable instrument; (3) property is bank account
subject to threat of immediate withdrawal, property is perishable, in
danger of destruction, concealment or removal from State, or sale to
innocent third person. (S-502[c] ; 1974, c. 307).
On order to show cause hearing court makes preliminary determina-
tion, and if a reasonable probability that plaintiff's claim would pr~-
vail, requires undertaking for value of property and may issue writ
which may be levied upon in amount adequate to secure judgment
which may be obtained. (8-502[e] ; 1974, c. 307).
if writ issued prior to hearing, defendant may request shortened
time, with notice to plaintiff, of not less than 48 hours. (8-502[c]
1974, c. 307).
If no appearance by defendant after service, writ may issue.
Court may, in addition, issue temporary restraining order, in lieu
of writ of attachment. (8-502[d] ; 1974, c. 307).
Affidavit for Attachment.-Plaintiff, or his agent or attorney must
make and file an affidavit stating ground of attachment, that debt is
due, amount due, and that attachment is not sought, or the action
prosecuted, to hinder, delay, or defraud any creditor of defendant.
(8-502, 16-601).
Attachment Bond.-No writ shall issue except by filing a written
undertaking by plaintiff in amount set by court. (8-503 [a]).
Notice of Attachment.-Two days after issuing writ clerk of court
must post at door of courthouse for 10 days, and cause to be published
in a newspaper (if a weekly, in three issues; if any other, six issues) a
notice setting out title of case and fact of attachment. (8-503 [b]). Not
applicable to justice courts.
Levy made on real property by filing notice of attachment describ-
ing property and copy of writ with county recorder; personal prop-
erty incapable of manual delivery, by serving similar notice and copy
of writ on party in possession; other personal property, by taking into
custody. (8-506). Securities must be attached by actual seizing by
officer making levy and pursuant to § 28-8-317. See topic Replevin.
Inde'innity.-Officer may not demand indemnity bond before making
levy, but may do so after, if defendant claims exemption or third party
claims property. (11-203).
Lien of attachment merges in judgment for plaintiff when obtained.
(8-528). See subhead Vacation or Modification, infra.
Priorities.-Attaching creditor has priority over subsequent attach-
ments and judgments, except that other creditors who file suit within
30 days after first publication and posting of notice of attachment and
diligently pursue to judgment, are entitled to prorate. (8-503[b]).
Sale after judgment is made as in case of execution, but perishable
property may be sold before judgment and other property may also
be sold before judgment under court order. (8-525-6,528).
Re7ease of Property.-Attachment may be discharged by judgment
for defendant in action, by defendant giving bond in an amount fixed
by court for redelivery or payment of value, or may be vacated for
irregularity on motion. (8-531-8).
PAGENO="0115"
107
Claims of third persons to owiiership of property levied on, or of
debtor that such property is exempt, are governed by same rules asin
case of execution. (8-527). Third party claim by way of security in-
terest must set forth dollar amount of claim. (11-203). See topic Exe-
cut ions.
Ui Jiodificatio1~.-Where lien on real estate ha~ in any
maimer been lost or destroyed, issuing court, on application, may cbs-
ellalge lien. (8-539). Levy is lien on real property for 2 years, unless
sooner released. discharged, or discharged by dismissal of the action.
Lien ceases after 2 years. unless on motion made not less than 5 or
more. than 60 days before expiration, court extends time, not to exceed
2 years. Lien may be so extended from time to time. (8-539).
Mortgaged I)elsonal property may he attached as follows: (1) If
nroperty could be attached by taking possession thereof except for the
mortgage. anti mortgagee consents in writing, by taking it into posses-
sion sr~biect to rights of mortgagee; (2) by paying amount of the
nmrr~age: (3~ the equity of redemption of the debtor may be attached
wirho~at taking possession by serving and filing a copy of the writ and
notice. (45-1108).
Debtors Perional Property.-Attachment by possession (1) if
parties with FCC perfected security interest consent in writing, then
subject to their rights; (2.) payment of perfected security iiiterest
holder. and obtaining possession by payment is subrogated to interest
of such perfected security holder; (3) attachment of defendant's
equity ct redemption without possession, by sheriff serving and filing
wrIt and notice.
Jfoi'tga~re and Trust Deed.-Interest of mortgagee and beneficiary
to trust deed may be attached by sheriff recording and serving copy of
writ and notice.
Defendant's Security Interest.-Attached by sheriff filing and serv-
ing copy of writ and notice. (8-506A).
Illinois Law Digest
Attachment
Actions iOn. Tilt/cit Al7o'wed.-~iay be used in all actions whether
contract or tort. (11-1). But re prejudgment attachment, see 407
Courts lilt/cit May Issue Tirit.-Any court of competent jurisdic-
tion may issue a writ. (11-1). See Court Calendar in part V.
In TV/tose Favor Writ May I$sue.-Any person, including a non-
resident or foreign corporation, may obtain an attachment.
Against TVlio?n Writ May Issüe.-Writ may issue against resident
or nonresident. (11-1).
Claims on TV/tick Writ May Issue.-An attachment may issue on
any money claim exceeding $20,~ whether liquidated or unliquidated.
(11-1).
Property Subject to Attacltment.-Attachinent may issue against
both real and personal property. For property exempt from attach-
ment, see Exemptions.
Tiatcr Graft, Etc.-Special provision is made for attachment of
water craft used in State or having home port therein, to enforce cer-
tain liens or claims, and also for attachment to enforce lien for freight
on goods shipped by water craft. (12-1 to 29a, 12-47).
PAGENO="0116"
108
Time for Issuing A ttcwlim ent.-Attachment may issue either at time
of instituting suit or thereafter. (11-1). Wvit may issue prior to filing
of complaint upon affidavit of creditor described below, provided that
complaint shall be filed 10 days before return day of writ, in which
event defendant is required to appear or answer on or before return
day. If complaint is not so filed, defendant is not required to appear or
to answer until 15 days after return day; and if complaint is not filed
5 days after return day, defendant may, at court's discretion, have
suit dismissed. (11-25).
Attachment may issue in aid of a pending case. Notice of pendency
of suit and of issue and levy of writ is given as in cases of original
attachments, unless defeiidant has previousl3T been served with process
in original cause. (11-33).
Grounds.-Attachment may issue where: (1) debtor is a nonresi-
dent; (2) debtor conceals himself or defies officer so t.hat process cannot
be served on him; (3) debtor has departed or (4) is about to depart
from State with intention of having his effects removed therefrom; (5)
debtor is about to remove his property from State to injury of creditor;
(6) debtor has within 2 years preceding filing of affidavit, fraudu-
].ently conveyed or assigned all or part of his effects, or (7) fraudulent-
ly concealed or disposed of his property so as to hinder or delay his
creditors; (8) debtor is fraudulently about to conceal, assign or other-
wise dispose of his property or effects so as to hinder or delay creditors;
and (9) debt was fraudulently contracted by debtor, provided fraudu-
lent statement was in writing and debtor's signature attached thereto
by himself, his agent or attorney. (11-1). Provisions for attachment
are to be construed in most liberal manner for detection of fraud.
(11-41).
Affidavit must be filed by creditor, his agent or attorney, with clerk
of court, stating nature and amount of indebtedness, after allowing all
just credits and set-offs, and any one or more of the above causes, also
place of residence of defendant or that on diligent inQuiry afflant has
been unable to ascertain same. (11-2). Judgment will be set aside if
affiant has not complied with requirement of diligent inquiry to ascer-
tain address of defendant. (13 Ill. App.2d 76~ 141 N.E.2d 63). In addi-
tion,* written* statement executed by creditor's attorney or attorneys,
showing whether or not action sounds in tort, together with designa-
tion of return day for summons to be issued, must be filed. Where action
sounds in tort, plaintiff, his agent or attorney must apply to a judge
and be examined under oath concerning cause of action. Such judge
endorses on affidavit amount of damages for which writ shall issue
and no greater amount may be claimed. (11-2).
Form of affidavit may be substantially as follows (11-2a)
Form
STATE OF ILLINOIs,
County, 88~
A B, being duly sworn, says: That (here state i± afflant is agent or
attorney of the creditor; if suit is by an individual or corporation, the
name of such individual or corporation, and if the suit is by a firm, the
name of the partners) has a just demand against (name of debtor), on
account of (here make short statement of the nature and amount of
PAGENO="0117"
109
the claim), and the affiant believes (the name of the creditor) is entitled
to recover of said (name of debtor), after allowing all iust credits and
set-offs dollars and - cents, which is now due,
and that he has good reason to believe and does believe that (name of
debtor) (here state some one or more of the causes which authorize an
attachment) the said (name of debtor) (here state the residence of the
debtor if known, or if not, that the affiaiit has made diligent inquiry
and caimot ascertain his place of residence).
Subscribed and sworn to before me on this day of
,
Mv commission expires , , A.D.
If action sounds in tort here include the endorsement of judge as
to amount of damages for which writ shall issue.)
Bond must tic taken by clerk with sufficient security, payable to the
People cf the State of Illinois. for use of person interested in property
attacneu. ifl dou~ie slim sworn to be clue, conditioned for satisfying
all costs awarded to defendant orally others interested in proceedings,
and all damages and costs recovered against plaintiff for wrongfully
suina out. the attachment. All attachments issued without bond anct
affidavit taken (except where State is plaintiff) are void. (11-4a).
Court may. on cx Palte motion, without notice, supported by affidavit
of plaintiff clescribmg specific property to be attached and value
thereof. fiX bond at double value of property to be attached instead of
douhie sum sworn to be clue. (11-4b).
If no property found or a designated garnishee is not served, and
v-here property seized is of insufficient value, alias and pluries writs
may issue without additional bond, except where additional specific
~)1ope~ty is desired to be attached, in which case an additional bond at
least double value of additional property is furnished as stated above.
(11-lOa).
Form of writ is substantially as follows (11-6)
Form
The People of the State of Illinois to the Sheriff of County:
ot tot the purpose only of service as summons; to any person author-
ized to serve writs of summons :-Greeting:
B hereas A B (or agent or attorney of A B, as the case may be,)
bath complained that C D is ju~tly i~idebted to the said A B to the
amount of and that (here state the cause set out in the affi-
ciavit) and the said having given bond and security, according
to law: We therefore command you that you attach so much of the
estate. real or personal, of the said C D~ to be found in your county,
as shall be of value sufficient to satisfy the said debt and costs, accord-
in~ to the affidavit, but in case any specific property of the said C D,
iound in your county, shall be described in this writ, then you shall
PAGENO="0118"
110
attach said described property only, and no other property, the said
specified property to be so attached, being described as follows:
and such estate so attached in your hands to secure, or so to provide,
that. the same may be liable to further proceedings thereupon, accord-
ing to law; and that you summon C D to appear and answer the com-
plaint of said A B, before the Court of at in the
county of on the day of next; and that you also
summon and such other persons as you shall be required by the
said A B, as garnishees, to be and appear before the said court on the
said day of next, then and there to answer to what may
be objected against them. When and where you shall make known to
the said court how you have executed this writ, and have you then
and there this writ.
Witness clerk of the. said court, this day of in
the year of our Lord, etc.
Writ of attachment is directed to sheriff and is signed by clerk, and
seal of court is affixed thereto. (11-6).
If debtor is actually absconding or concealed, or stands in defiance of
an officer, or has left the State with intention of having his effects re-
moved, or intends to depart with such intention, writ may issue and be
served on Sunday. (11-12).
Writs may issue to other counties in State. (11-13).
Executiou of TTTrit._In case of joint debtors writ issues against
property of those brought within act; and others are summoned to
answer action. (11-7). Writ may be executed on lands or tenements in
which debtor has equitable interest or title. (11-8).
Indemnity.-In practice, officer executing writ demands indemnity
bond in double the amount alleged due where personal property is
seized. (11-4a).
Sale of perishable property is provided for. (11-20). Provision also
made for sale of livestock. (11-39a).
Lien.-Attachment becomes lien on real estate after officer making
levy files a certificate of said fact with recorder (11-9) unless land is
registered under Torrens system, in which event attachment becomes
lien on real estate only upon (a) filing of certificate with registrar of
titles and (b) entry in registry of a memorial thereof (30-123).
Priorities.-Judgments in attachments against same defendant re-
turnable on same day, and judgments in suits by summons, capias or
attachment against such defendant recovered within 30 days from day
when judgment in first attachment on which judgment is recovered is
rendered, share pro rata in proceeds of attached property. Court may
allow priority to creditors through whose diligence property being
removed was secured. (11-37).
Proceedings in A ction.~Where defendant is a nonresident, or has
left State, or cannot be found, or is concealed so process cannot be
served, and where property has been attached or garnishees sum-
moned, clerk must give notice by publication~ and by mailing copy of
such notice to defendant, if his place of residence is stated. (11-22). If
defendant is personally served or appears, judgment is of same force
PAGENO="0119"
111
as in suit commenced by summons (11-34). Where defendent is no-
tified by publication but not served and does not appear, judgment is
111 rem against property attached and special execution issues. (11-35).
Defendant. may traverse facts stated in affidavit by verified answer. If,
on trial. that. issue is found for plaintiff, defendant may answer or move
as in other cases: if fotrnd for defendant, attachment is quashed. WThere
nersonal jurisdiction of defendant has been obtained, suit proceeds to
final judgment as if commenced by summons. (11-27). Any party,
intervenor. or sheriff who may feel aggrieved by final order or judg-
ment. may appeal in accordance, with procedure applicable to civil
cases. (11-40). Any defendant m~y file any counterclaim pleadable by
laws of Illinois. (11-30). Original affidavit or attachment bond may be
amended by filing a legally sufficient affidavit or bond; and writ itself
may also be amended, in such time and mamier as court may direct.
(11-2S). Civil Practice Act governs except as provided in Chapter 11.
(110-fl.
T/~ lid Party Cia im.s.-Person other than defendant may intervene
b verified petition. without giving bond, but property is not thereby
renlevied. Jury is inipaneled to inquire into right of property. If jury
finds for claimant, he is given judgment for his costs. and if it further
finds he is then entitled to lossession of property, it. is ordered delivered
to him. If jury finds for plaintiff, he is given judgment against claim-
ant for his costs. Nonresident claimant must file security for costs as in
case of nonresident plaintiffs. (ll~29).
Rciea~e oi Pro~eity.-Person from whose possession property is
taken may obtain same by entering into bond to officer, approved by
him. in double value of property. conditioned that property will be
forthcoming to answer judgment. (11-14). In lieu of said bond defend-
ant desiring return of attached property may give like bond and
security in sum sufficient to cov~r debt and damages sworn to, with
interest, damages and costs, conditioned that defendant will pay
p1aii~t~ff amount of judgment and costs rendered on final trial within
~0 clays after judgment. or a recognizance in same substance may be
taken in open court. entered of record, and approved by court; on for-
feiture of which judgment may be rendered and execution issued. In
either case attachment. is dissolved, property restored, and cause
proceeds as if commenced by summons. (11-15).
Amendment of pleadings may he permitted on motion to pleadmgs
or summary judgment or at trial, if wrong remedy sought, court to
consider effect on defendantas well. (11-44).
Indiana Law Digest
Attachment
New Rules of Civil Procedure extend prior remedies of attach-
ment. (3-501: 1C34-1-l1-1: Rule TR. 64[B]).
~i etion.s in lVldeli. Aiiowed.-At.tachment is allowed upon any claim
of creditor if plaintiff's complaint is for money or to determiiie rights
in nropertv or obligation attached. (3-501; 1C34-1-11-1; Rule TR
64 FBi). See subhead Grounds. infra.
(`rnirt.~ Which A[a?/ Issue llinit.-Any court of first instance having
civil. inrisdiction and any justice of the peace when the principal claim
is within his jurisdiction. (3-544; 1C34-1-11-4).
PAGENO="0120"
112
In Whose Favor TVrit May Is.s'ue.-Any plaintiff, whether resident or
nonresident.
Claims on Which Writ May Issue.-Attachment may issue on a claim
which is not payable in the State. (96 md. App. 325, 183 N.E. 699). As
to unmatureci claims, see infra, subhead Grounds.
Time for Issuance.-Attachment may issue any time, or during
pendency of action after filing of complaint, even though summons has
not been served (183 N.E. 099), and on Sundays in emergencies (3-511;
1C34-1-11-8).
Grou'nds.-An attachment may be issued when defendant is a foreign
corporation or a nonresident, or being a resident, if he secretes him-
self so that summons may not be served upon him, or is secretly about
to leave State, or has departed therefrom, or is removing his property
therefrom or has sold or is about to sell or to dispose of his property
subject tO execution with intent to defraud or delay his creditors', or is
a person whose residence and whereabouts are unknown and cannot be
determined after reasonable investigation before commencement of ac-
tion. (3-501, 502; 1C34-1-11-1. 2; Rule TR 64[B]).
£7nm atured Ciaims.-Attachmeut may not issue on unmatured
claim, except on ground that defendant is removing or has removed his
person, has sold or is about to sell or convey his property with intent
to defraud or is removing or about to remove property subject to execu-
tion leaving an insufficient excess subject to execution. (3-501; 1034-
1-11-1).
Proceedinqs to Obtc'in.-Plaintiff must file an affidavit showing the
nature and amount of his claim and existence of one or more of the
statutory grounds for attachment. (3-507; 1034-1-11-41). Writ of
attachment against defendant's real estate or his interest is effectively
served by recordation of action in appropriate us pendens record, and,
unless vacant, by serving writ of attachment or notice thereof upon
person in possession of land. (Rule TR 64[B] [6]).
Attachment Bond.-Any plaintiff, except the State, must file a writ-
ten undertaking with security to the approval of the county clerk con-
ditioned that plaintiff will prosecute the attachment (3-508, 543;
1034-1-11-5, 39) and pay defendant all damages he may sustain if pro-
ceedings prove to be wrongful or oppressive (3-542; IC34-1-11-~38).
Levy and Lien.-Attachment must be levied first on personalty and
may be levied on realty if sufficient personalty is not found. (3-515;
1034-1-11-11).
Indeninity.-There is no statutory authority for the officer to de-
mand indemnity before making a levy.
Lein `attaches from time of delivery of property to sheriff. (3-513;
1034-1-11-10).
Release of Property.-Defendant or any other person having had
possession may secure release of property by giving bond for the ap-
praised value of the goods attached or for payment of any judgment
which plaintiff may secure. (3-516; 1034-1-11-13).
Sale.-Perishable goods held under attachment may be ordered sold
at public auction by the court upon reasonable notice. (3-520; 1C34-1--
11-18).
Third Party Clainis.~Where personal property is in the possession
of an officer by virtue of a writ of attachment and a third person brings
PAGENO="0121"
113
an action to replevy the same, such officer may demand of the attach-
ment plaintiff an indemnifying bond against loss for attorney's fees
or judgment for damages and costs, and after five days in default
thereof may deliver the property to replevin plaintiff. (3-517; 1C34-
2-4-1).
Consigned goods are attached subject to lien of consignee. (3-514;
IC3~-1-11-16).
Adverse claimants to attached property may be examined under
oath. (3-S1S; 1C34-1-11-15).
Il~te'e~~tion of Ot/~ei Cveditors.-Anv other creditors of defendant
may enter complaint. and file their affidavits and bonds and prove their
ciaims as parties to the original action at any time before final judg-
ment. The money realized from sale and garnishees after paying costs
and expenses is shared pro rata on the amount of all claims filed. The
original attaching creditor has no preference. (3-534, 540; 1034-i-li-
31.3fl.
Dismissal by original creditor does not affect intervening creditors
(3-535; IC34~1-1132).
AppeaJs.-After judgment for the defendant, attached property is
released unless plaintiff files notice of appeal within 72 hours. (3-537;
1C34-1-1i-34).
Iowa Law Digest
Attachment
c. 639).
Attachment may be obtained in any civil action. by any plaintiff,
including nonresident. or foreign corporation. provided one or more of
the necessary grounds exists. It may issue on a claim not payable in the
State.
Grounds for attachment are that defendant is: (1) A foreign cor-
POratlon or acting as such; or (2) a. nonresident: (3) is about to re-
move property from the State without. leaving sufficient to ~ay debts;
(4) has disposed; or (5) is about. to dispose of property with intent
to defraud creditors; (6) has absconded so that ordinary process can-
not be served on him; (7) is about to remove permanently out of the
county and has property therein not exempt; or (8) is about to remove
permanently out of the State, and refuses to pay or secure plaintiff's
debt; (9) is about to remove property out of county with intent to
defraud creditors: (10) is about to convert property into money ill
order to place it beyond reach of creditors: or (11) has property or
riehts in action which he conceals; or (12) that debt is clue for prop-
ertv obtained under false pretenses. Attachment may be had before
debt due on grounds 4. 5. and 19. or where defendant has removed
or is about to remove from State and refuses to secure payment of
debt, if plaintiff did not imow of removal or contemplated . removal
wli en debt contracted.
Proceeciinqs.-Plaintiff must file petition sworn to by him, or his
agent or attorney (knowing the facts) setting out the claim and one
or more grounds for attachment.
Bo~d.-Plaintiff must give bond with resident surety approved by
clerk of com~t in penalty double value of property sought to be at-
tached. in no event less than S250 in district court or $50 in justice
court. lVhere only real property is attached, bond must be in penalty
fixed by court or clerk.
PAGENO="0122"
114
Levy.-The sheriff must, as nearly as the circumstances of the case
will permit, levy upon property 50% greater in value than the amount
of the claim. Any property not exempt from execution may be
attached.
Jndemnity.-There is no statute authorizmg the officer to demand
indemnity before levying.
Priorit~es.-In case of two or more attachments, the attaching credi-
tors do not share pro rate, but the attachments have priority in the
order of their levy.
A valid attachinent levied before a general assignment -for the bene-
fit of creditors is not affected thereby.
Re7eci.se.-The defendant, or any person in possession of any at-
tached property, or any person making affidavit that he has an interest
in same, may, at any time before judgment, discharge the property
attached by giving bond with security to be approved by the sheriff, or
after return of the writ, by the clerk, in a penalty at least double value
of property. Bond must be filed with clerk of court, (639.45).
Bale.~Where the property attached is perishable, the sheriff may
summon three persons having the qualification of jurors to examine it.
Defendant, if within country, must have 3 days notice of the hear-
ing. If it is the opinion of those who examine the property that it
should be disposed of, they must specify in writing a day beyond which
the property should not be kept. If this day occurs before trial, the
property must be sold as goods are sold on execution. An earlier sale
may be made if the condition of the goods warrants it. Sale may be
made on written consent of defendant without such finding.
(639.48.50).
Third Party Ciaim-s.-Any third party may, before sale of attached
property or before payment to plaintiff of the proceeds thereof or any
attached debt, present his verified petition to the court disputing the
validity of the attachment or stating a claim to the attached property
and setting forth the facts upon which the claim is founded. (639.60).
Uniform Commercial Code enacted, effective July 4, 1966. See topic
Commercial Code.
Kansas Law Digest
Attachment
Actions in- Which Allowed.-At or after commencement of any civil
action. (60-701).
Court Wide/i May Issue Writ.-District court (60-701) and some
lower courts in which cases procedure and grounds are substantially
same but governed by Code of Civil Procedure for courts of limited
jurisdiction (61-1601 et seq.) with exceptions.
In Whose Fa'vor Writ May Issue.-Any plaintiff, resident or non-
resident.
Against Whom Writ May Issue.-Any defendant or defendants,
resident or nonresident.
Claims Upon Which Writ May Issue.-An action may be com-
menced and attachment issued on a demand not yet due in any of cases
mentioned under subhead Grounds (infra)~ excent those in clauses (1)
and (2~. but no judgment may he rendered until maturity of the de-
mand. (60-702). No order of attachment shall be issued before judg-
ment where defendant's property is in possession of third party and
is in form of earnings due and owing. (60-703).
PAGENO="0123"
115
Grounds.~When the defendant whose property is to be attached
(1) is a nonresident or a foreign corporation; (2) has absconded or
concealed himself so that sumrnon~ cannot be served upon him, or is
about. to move out of State with intent of changing his domicile; (3) is
about to remove his property or effects out of this State; (4) is about
to convert his property into money for purpose of placing it beyond
the reach of his creditors; (5) has concealed, removed, assigned, con-
veved or otherwise disposed of his property so as to hinder or delay his
credtrors or is about. to do so; (6) fraudulently contracted the debt or
incurred the liability; (7) is lia:ble for damages for injuries arising
out of the commission of some felony or misdemeanor, or the seduction
ot a ±emaie; (8) has failed to pay the price or value of any article
or thing delivered which by contract he was bound to pay upon de-
l~verv. (60-T01).
Pi~oceeciing$ to Obtain.-By filing an affidavit stating that the plain-
tiff has a just claim, the amount thereof, and that plaintiff has good
reason to believe and does believe in the existence of one or more
grounds for attachment. (60-603, 4).
Attaehmen.t Bond.-Required. except in actions instituted on behalf
ot ~tate of Kansas or a county thereof, or where defendant is a non-
resident or foreign corporation not qualified to do business in this
State and is not a common carrier or public utility, (60-703). Bond is
executed by plaintiff with sufficient sureties, in a sum double amount of
plamt.ift's claim, or such lesser amount as may be approved by court
order. (60-705).
Lc?/.-Order commands officer to attach the property of defendant,
real or ersonal. tangible or intangible, or so much thereof as will sat-
isfy Piailltlfis claim. or such specific property as plaintiff directs, and
to summon as garnishees all persons in whose possession any personal
property or money of the defendant may be .(60-706).
Indemnity.-No statutory authority for levying officers to require.
Prio?~itieS.-Orders of attachment are levied on in the same order
in which they were received by levying officers. If several attachments
issue out of different courts. all questions arising must be determined
by court out of which was issued first attachment served, with pref-
erence given to a court of general jurisdiction over one of limited juris-
diction regardless of time of service. (60-713).
Reiea$e of Property.-Defendant or any other person in whose
hands property of defendant is found may retain or regain possession
at any time before final judgment or sale of such property under court
oi dei by giving bond ~ ith sufficient sureties in an amount which is
either, at option of party giving the bond, (1) double amount of plain-
tiff's claim, or (2) double appraisal of the property, conditioned that
such property or value thereof shall be available to apply on.any judg-
ment rendered. (60-707).
Tlth'd Party Clairns.-Any.person claiming an interest in any prop-
city attached and. in discretion of the judge. any creditor of a party
if creditor's claim is liquidated in amount will be permitted to inter-
vene and court will adjudicate their respective rights. (60-713).
Sale -When property sewed is likely to peiish or m'tternily de
preciate in value before probable termination of the suit, Or keeping
of which would be attended with unreasonable loss or expense, the
property may be ordered sold. (60-710). See topic Executions.
PAGENO="0124"
116
Vacation or Jloclificcttiol? .-Any interested person may file a motion
to dissolve attachment, verified by affidavit, putting in issue sufficiency
of proceedings or truth of the facts alleged in attachment affidavit.
Court may permit amendments to the petition or affidavit. (60-712).
Discharge of attachment and restitution of property is possible at
any time before judgment if defendant or person in his behalf exe-
cutes an undertaking, with sureties, in double amount of plamtiff's
claim to effect that defendant will perform judgment of court. (60-
707).
Receiver.-Receiver may be appoiiited in aid of attachment. (60-
711).
Kentucky Law Digest
Attachment
Actions in Which Allo'wed.-A general attachment may be had,
where grounds therefor exist, in any action for recovery of money.
(KRS 425.185). Specific provisions authorize attachment in suit to
enforce mortgage or other lien or interest in personal property or in
suit to void fraudulent sale of property (KRS 425.430) and in action
by landlord for rent due from original tenant (KRS 383.020).
Courts Which May Issue TTTrit.~Writs may be issued from circuit
court, county or quarterly courts and police or justice's courts if court
has jurisdiction over subject matter of claim for money, property, rent
due, etc. (KRS 425.435; 383.030), except that returns for over $200 for
rent due must be before circuit court (KRS 383.030).
In TVhose Favor Writ May Issue.-Remedy by attachment is avail-
able to any plaintiff, including nonresident and foreign corporation.
Agaim~st W/iom Writ May Issue.-Property of any defendant in
civil a.ction is subject to attachment, unless exempted by statute. Writ
may issue against any person holding property of defendant otherwise
than as security; as, for example, to attach funds in court (KRS
425.245), joint property (KRS 425.250), and funds due governmental
employees (KRS 427.130).
Claims on Which Writ May Issue.-Claim must be for recovery of
money. It is not necessary that claim sued on should have accrued or
become payable in Kentucky, if otherwise the court has jurisdiction.
Before a debt or liability on contract becomes due, an equitable ac-
tion may be brought for indemnity, and an attachment against de-
fendant's property or order of arrest obtained by order of court on
grounds similar to those. hereinafter stated and after bond ~iven.
(KRS 425.375 (1), 425.425).
By special statute (KRS 383.030) claim for rent may be collected
by attachment issued by a justice of the peace. police judge or judge
of quarterly court of the county, on affidavit filed by landlord or his
agent, showing that rent is owing and will probably be lost unless
attachment is issued.
An attachment may also be issued in an action for recovery of money
due on contract, judgment or award, if defendant therein has no
property in this State subject to execution or not enough thereof to
satisfy plaintiff's demand and collection of such demand will be en-
dangered by delay in obtaining judgment and return of no property
found.
PAGENO="0125"
117
Likewise: an attachment may b~ obtained in an action to recover
possession of personal property which has been ordered to be delivered
to plaintiff, where such property or part thereof has been disposed of,
concealed or removed so that sheriff cannot execute order for its
delivery. (KIIS 425.185). In this case value of property thus done
away with is measure of relief by attachment.
L~n~twms Tpon. Rii/it to lttctelu-Attention is called to limita-
tions imposed b the following laws, upon right to attach goods cov-
ered by negotiable documents unless such documents are impounded
by the court: (a) fniform Commercial Code (KRS 355.7-602) ; (b)
Fnited States Code, title 49, ~ 103, ~iffecting order bills of lading issued
in interstate commerce.
Grounds of attachment, other than as heretofore stated, are that the
ieiendant. or one or more of several defendants: (1) Is a foreign cor-
poratiOn or a nonresident of the State; (2) has been absent from the
stare for 4 months: (3) has departed from the. State with intent
to defraud his creditors: (4) has left the county of his residence to
avoid the service of summons: (5) so conceals himself that a summons
cannot be served upon him: (6) is about to remove or has removed
his property. or a material part thereof out of this State, not leaving
enough therein to satisfy plaintiff's claim, or the claims of the said
defendant's creditors: (1) has soid, conveyed, or otherwise disposed
of his property. or suffered or permitted it to be sold, with the fraudu-
lent intent to cheat. hinder or delay his creditors; or (8) is about to
sell. convey, or otherwise dispose of his property with such intent. But
an attachment max not be granted on the sole ground that the de-
fendant is a foreign corporation or a nonresident of this State except
in action on a debt or demand arising on contract. (KRS 425.185;
134 Ky. 162. 156 S.W. 1079).
C1?~j)t)Oi~-S.-AS to exempt propert~ see topic Exemptions.
P; OC(edI~7~/.~ - to 0 btmi .-To obtiai ii an attachment before judgment
and return of "No propeity found" on execution, the Plaintiff must file
an affidavit., showing: (1) Nature of plaintiff's claim; (2) that it is
just: (ti) the amount which the affiant believes the plaintiff ought to
recover; and (4) the. existence of sonic one of the grounds above
enumerated. (KRS 425.195).
Jtt':1e/une2it Bond.-In order tO procure attachment, plaintiff must
gve bond. not exceeding double the amoimt of his claim, with probable
costs. conditioned to Pay defendant all damages which lie may sustain
by reason of the attachment if it prove wrongful (KRS 425.205), ex-
cept where the attachment issues after return of "no property found"
on executioii (see Executions, subhead Supplementary Proceedings) or
where the attachment is issued iii a divorce proceeding, for mainte-
nance or alimony, against the husband's property when it appears that
the husband is about to remove himself or his property, or a material
part thereof, out of the State or that there is reason to suspect that he
will fraudulently sell, convey or conceal his property (KRS 403.080;
100 Ky. 696, 39 S.W. 244). One surety on the bond is sufficient, provided
he has property in the State, subject to execution, in double the amount
of the bond.
Leiy.-Attachments are levied in the following manner (KRS
425.225): (1) Upon real property, by leaving a copy of the order with
PAGENO="0126"
118
the occupant thereof, or, if no occupant, by posting such copy in a con-
spicuous place thereon; (2) upon tangible personal property, by taking
it into custody and holding it subject to order of court, unless it is al-
ready in custody of another officer; (3) upon intangible personal
property, as in cases of garnishment (q.v.).
Inclemnity.-If officer required to levy on personal property doubts
whether it is subject to attachment, he may demand an indemnity bond
from plaintiff. (KRS 425.265).
Lien a'nd P~iorities.-An attaching creditor has a lien on the prop-
erty to which the order is directed. (KRS 425.270). Several orders of
attachment against the same defendant rank according to the times
of their delivery to the sheriff (KRS 425.220), except that all attach-
ments executed on the same day on a fund held in court share ratably
in such fund (KRS 425.245).
Notice Required to Preserve Lien of Attachrnent.-In order to pre-
serve lien of attachments upon real estate of defendants affected
thereby, a memorandum giving the style. and nature of the case, the
amountof the attachment, the names of the parties, and a description
of the real estate attached, must be filed in the clerk's office of the county
in which the land is located.
This applies also to attachments issued by United States district
court. (KR.S 382.440-382.470).
Release of Property.-Sheriff may deliver attached property to per-
son in whose possession it was found, upon such person's execution of
bond to plaintiff, with surety, binding obligorsin double the value of
the property, that defendant will perform the judgment of the court,
or that the property or its value will be forthcoming. (KRS 425.280-i).
Or, before judgment, defendant may execute bond, with surety, to
plaintiff, to effect that defendant shall perform judgment of the court.
Upon execution of such bond, attachment will be dissolved and restitu-
tion of the property made. (KR.S 425.035). Or, of course, the property
may be recovered upon judgment for defendant. (KRS 425.330).
Saie.-Attached property may. be sold by order of court during
pendency of action if, by reason of its perishable nature or cost of
keeping it, a sale would be beneficial to the parties. (KRS 425.290).
Third Party Claime.-Sheriff may not take possession of property
owned by defendant jointly or in common with another person, until
plaintiff executes bond, with surety, to such other person. that plaintiff
shall pay such damages as other person may sustaIn through wrongful
suing out of order, not exceeding double amount of plaintiff's claim.
(KRS 425.250).
Vacation or Modiflcation..-Defendant may, before judgment, after
notice to plaintiff, move court for additional security on part of plain-
tiff and court may thereupon vacate the order of attachment, unless
sufficient security is given by plaintiff within a reasonable time fixed
by the court. (KES 425.370).
Louisiana Law Digest
In case of an unmatured claim, attachment may issue on any of the
aforementioned grounds or on the ground that the debtor is about to
remove ~his property out of the State before the debt becomes due.
(C.C.P. 3543). . . .
PAGENO="0127"
119
In case of a money demand against a nonresident, attachment lies
regardless of nature or origin of claim, liquidated or unliquidated
character or certainty or uncertainty of amount demanded. (C.C.P.
.3542).
Attachment on ground of nonresidence lies against a foreign corpo-
ration which has not qualified in the State, but not against one which
has qualified. (152 La. 1015, 95 So. 227).
Piopeity Subject to ASei~uie.-A creditor may obtain a seizure
against all property belonging ~o the debtor, whether same be in
debtor's possession or in that of third person. (C.C.P. 3503, 2411).
Pi-oceedi~g~.-Attachment issues upon filing of petition showing
grounds for writ, with verificat.ior~ or affidavit by creditor, his counsel
or agent. (C.C.P. 3501). Gaceat: Fuentes v. Shevin, 407 U.S. 67, 92
S. Ct. 1983. 32 L. Ed. 2d 556 (1972), held notice and an opportunity
to a hearing prior to seizure of property constitutionally essential
under due process clause.
Attachment may be obtained by leave of court on affidavit and
giving bond. provided the usual petition is filed on the next day.
(C.C.P. 3502).
Doivl.-Creditor must file bond equal to debt., exclusive of interest
and costs; except that bond need not exceed S'250, unless court orders
c.therwise. where nonresidence is sole ground of attachment. (C.C.P.
:3544).
I~u'ince of TFiit.-Writ may issue on legal holiday (C.C.P. 288),
and whether or not debt is liquidated or has matured. (C.C.P. 3542,
3543).
Levy on personal property is i~ade by sheriff taking physical pos-
session of same: on real property by placing keeper on property or, by
service of notice of seizure upon owiier, filing of notice with recorder
of mortgages for parish and ent~y of data regarding the filing with
recorder of mortgages and description of property in sheriff's seizure
book. (T. 13, §~ 3851-3861, as am'd Act 32 of 1960).
Relea.se.-Defendant n-lay secure release of attachment by filing bond
in amount exceeding by one-fourth the value of property a.ttached or
the amount. of the claim, whichever is less. (C.C.P. 3507, 3508).
Sale.-Propert.y attached, except perishables, may be sold only
under execution after judgment. (C.C.P. 3510).
Preferences between attachments are in order of dates of service of
writs.
Dissolution.-Attachment may be dissolved on rule to show cause.
(C.C.P. 3506).
Third Party Claims.-Third person may intervene to protect in-
terest in property attached. If such person claims ownership of prop-
erty, sale may be enjoined; if he claims a prior lien, sale is not enjoined
but rights of parties are referr~d to proceeds of sale. (C.C.P. 1092,
1094. 1098, 2592. 2643).
Vacation or 3.1 odiflcation.-If value of property seized under attach-
ment exceeds what is reasonably necessary to satisfy plaintiff's claim,
defendant may secure release of excess.
Attachment . .
Actions in Which Allowed -Attachment is a conservatory writ and
may be obtained in any action f3r a money judgment. (C.C.P. 3542)~.
PAGENO="0128"
120
In Whose Favor Writ May Issue.-Attachment may be obtained by
any plaintiff, including a nonresident or foreign corporation.
Against Whom Writ May Issue.-Attachment may issue against
resident or nonresident.
Claims on TVhieh T'Vrit May Issue.-Attachment may issue* on an
unmatureci claim or a claim which is not payable in the State.
Grouncis.-Attachment may be granted on ground that debtor: (1)
Has departed from State permanently, or is about to do so before judg-
ment can be obtained and executed against him; (2) is nonresident
who has no agent for service of process within State; (3) conceals him-
self with intention to avoid citation; (4) with intent to defraud credi-
tors, or to give unfair preference to some of them, has mortgaged, as-
signed or otherwise disposed of his property, or part thereof, or is
about to do so; (5) has converted his property into money or other
evidences of debt, with intent to place it out of reach of creditors, or
is about to do so. (C.C.P. 3541).
Maine Law Digest
Attachment
A etions in Which Ailowed.-All actions.
Courts Which May Issue Writ.-Personal property may be
attached on writs from district court. (T. 14, § 4151). Real pronerty
may be attached on writ from district court having jurisdiction. (T. 14,
§ 4451). Real and/or personal property may be attached on writ issued
by superior court.
J~ Whose Favor TVrit May Issue.-May issue in favor of resident,
nonresident or foreign corporation.
Against Whom Writ May Issue.-Against any resident of the State
or against any nonresident having property in the State.
Claims on TVhich Writ May Issue.-No attachment may be made
until debt is due.
Proceedings to Obtai'n.-No property, including real estate, may be
attached unless such attachment is for specified amount approved by
court. Such order maye be entered only after notice to defendant, hear-
ing and finding by court of reasonable likelihood that plantiff will
recover judgment, including interest and costs, equal to or greater than
amount of attachment over any liability insurance. Attachment of
property must he within 30 days of order approving attachment.
(M.R.C.P. 4A[c]).
Order approving attachment may be entered cx parte only where
i~laintiff shows either (1) Defendant not subject to personal jurisdic-
tion, or (2) clear danger that defendant will remove property from
State, or (3) immediate danger that defendant will damage or destroy
property. Certificate by plaintiff's attorney of amount of liability in-
surance of defendant required. Motion for ex parte order shall be
supported by affidavit. (M.R.C.P. Rule 4A[f]). Affidavit shall be upon
affiant's own knowledge, information or belief. (M.R.C.P. 4A[h]).
Attachment must be recorded.
Levy.-If on real estate then within 5 days after attachment
officer must file in registry of deeds in county where some part of estate
lies an attested copy of his return relative to such attachment with
value of. property he is commanded to attach. (T 14, §~ 4~51-4457,
4601-4613).
PAGENO="0129"
121
If attachment is of personal prqperty, officer must take possession
of it either by removing the property or putting in a keeper. (T. 14,
§4152).
BvD~oj Goocis.-Officer may file attested copy of his return in town
clerk's office where attachm~nt made within 5 days thereafter. This
has the same effect as if the propei~ty had remained in his possession.
(T. 14. ~ 4134').
h;'Icm ~t~i.~-Officer may require indemnity before levying.
At eh:'7 at Boad.-Xny attachment made on an origmal writ,
against an absent. defendant. continues for 1 rear and GO clays after
iudgment is renderecL when no bond is given; and wuen bond is given
it continues for GO clays after such~ bond is filed with the clerk of the
court. The bond must be deposited with the clerk of the court. who
decides upon the sufficiency of its sureties, sub]ect to appeal. (T. 14,
~47O1).
Pii~atics.-Creditor first. attaching may exhaust the amount cov-
ered by his attachment; but subsequent creditors may petition court
for permission to defend prior suits. (T. 14. § 201).
So7e.-Personal property may be~ sold by consent of debtor and creci-
itor. proceeding as if it were a sale on execution. (T. 14, § 4351).
Pis/~:~77e üoods may be sold without consent of debtor before or
after entry o~ actions.~ Procedure for sale set forth in the statutes.
,T. 14. ~ I1SS: 4352-4355).
Ro7eas~ of F1~ope2t?J.-At.tachmehts are dissolved: (1) By an assign-
inent in insolvency, of defendant, on proceeclmgs begun within 4
months; (2) by death of the defendant. and commission of insolvency
before levy; but the attachment of personal property continues in force
after death of debtor as if living, unless, before a sale thereof on execu-
tion. hi~ estate is decreed insolvent; (3) by judgment for defendant;
4) ~v iaI)se of GO days. or, in case of absent defendant, 1 year and
0) days. without levy after judgment.; (5) by reference of the suit and
all demands between the parties thereto; (6) by increasing the de-
mand for relief of the. complaint. and judgment for the plaintiff
thereon. unless only claims originally stated were allowed plaintiff
(7) by delivery to the office of a bond to plaintiff in a penal
sum not exceeding the ccl clamnum of the writ, with approved
sureties. conditioned that within 60 clays after judgment, or after
adjournment, the defendant will pay the Plaintiff or his a.ttoriiey
the amount of the judgment, with costs, such bond to be approved as
to penal sum and sureties by plaintiff or the court; (8) if made withi .i
4 months before the filing of a cOmplaint wherein a receiver is ap-
pointed. (T. 14, §~ 4451-4457, 4601-4613). Ex parte attachment may
he dissolved or modified without submitting to personal jurisdiction
upon motion by defendant on 2 clays iiotice; plaintiff has burden of
ustifying any finding which defendant has challenged by affidavit.
(M.R.C.P. 4A[g]). Fee for discharging attachment is $3. (T. 33,
§751).
Third Party Ciairns.-Where pOrsonal property attached or seized
on execution is claimed by virtue of a mortgage, pledge or other lien,
claimant must give attaching officer at least 48 hours written nOtice of
~us claim. Thereupon the officer or attaching creditor may restore the
pro erty or pay the claim or attaching creditor may summon claim-
ant to answer as to his claim. If claimant establishes validity of his
~i-2O7-7~~9
PAGENO="0130"
122
claim court may direct attaching creditor to pay same or suffer attach-
ment to be vacated; if claimant fails to establish his claim he cannot
hold property. If attaching creditor pays claim, security must be as-
signed to him. (T. 14, §~ 4251-4252). Attachment may be made by
party bringing counterclaim, crossclaiin, or third-party complaint in
same manner as upon original claim. (M.R.C.P. 4A[d]).
Maryland Law Digest
Attachment
Actions in Which Allowed.-Attachment may issue against prop-
erty or credits, matured or unmatured, of nonresident or absconding
debtor in action ex contractu, whether damages are liquidated or un-
liquidated, or in an action ex delicto. Attachment may issue against
property or credits of resident defendant returned twice non est, of
debtor about to conceal or transfer property with intent to defraud
and of an adult nonresident heir or devisee only in an action ex con-
tractu for liquidated damages. (courts art. §~ 3-304, 3-305; B. P.
041).
Courts Which May Issue Writ.-Writ may be issued by court of
record. (courts art. § 3-301). Judges of district court have jurisdiction
to issue writ to extent of their jurisdiction, as to which, see topic
Courts. (M.D.R.., c. 1100).
In Whose Favor Writ May Issue.-Any plaintiff, including a non-
resident or foreign corporation, may obtain an attachment. (courts
art. § 3-302).
Against Whom Writ May Issue.-Attachment may issue against
any defendant as to whom sufficient grounds (see infra) are shown
to exist. The writ may issue against a married woman.
Claims on Which Writ May Issue.-It is not necessary that claim
sued on be matured or payable within State. Attachment may issue on
claim prior to maturity. (courts art. § 3-305; R. P. 041).
Grounds.-Attachment may issue:
(1) On a judgment or decree. (courts art. § 3-301; B. P. 623;
F1-F5).
(2) On original process (a) when debtor is a nonresident; or if a
corporation, when it has no resident agent or when two unsuccessful
attempts to serve process have been made on different business days;
(b) when two summonses against resident defendant have been re-
turned non est; (c) when debtor absconds or is about to abscond from
this State; (d) when debtor is about to or has assigned, disposed of
or concealed his property or some part thereof with intent to defraud
his creditors; (e) when debtor has fraudulently contracted debt or
incurred obligation respecting which action is brought; (f) when
debtor is about to or has removed his property or some part thereof
out of this State with intent to defraud creditors; (g) when an adult
nonresident is entitled by descent or devise to land of debtor lying
within State. (R. P. 040; courts art. § 3-303; art. 23, § 96).
Proceedings to Obtain.-(1) On a judgment or decree, an attach-
ment will be issued by the clerk of the court in lieu of other execution
without any formality being required other than a written application
on a printed form (R. P. 623) ; (2) on original process, the clerk of the
court will issue an attachment upon the plaintiff filing (i) a declara-
PAGENO="0131"
123~
tion stating plaintiff's claim, (ii) an affidavit by plaintiff that defend-
ant is ind~bted in the amount claimed (or verifying the facts where
unliquidated damages are claimed) a~nd stating facts which constitute
~rounds for an att~chrnent on original process. (iii) original or true
copies of documentary evidence of the claim, such as note, invoice, etc.,
(ii-) instructions to sheriff as to description and location of property to
be attached and (v) in attachment on grounds of fraud, or in actions
cx contractu for unliquidated damages or cx delicto, a bond must he
filed in the amount alleged due. (H. P. G42). Writ of attachment may
be served by posting copy on real or~ leasehold property or by seizing
tangible personaltv. In addition, clerk must issue writ of summons to
defendant. WThere defendant cannot be served, plaintiff must make
reasonable efforts to notify defendant of the attachment. Plaintiff must
also notify person having custody of the property attached. (H. P. G46,
48). Writ of attachment by way of garnishment may be served upon
person having property or credits belonging to defendant. (H.. P. G47).
Amendment of proceedings is liberally allowed. (R. P. 320).
Successive writs of attachment may issue on original affidavit and
proof. (R. P. G49'.
Attae~hm~*r~t Boi~d.-No bond is required when attachment is issued
on judgment or decree. No bond is required in attachment on original
process when contract claim is liquidated or when resident debtor has
twice been returned non est. In actions for unliquidated damages, or
fraud or in actions cx delicto against a nonresident or absconding
debtor, bond must. be given for amount claimed conditioned on paying
costs and damages suffered by defendant or others interested. (R. P.
G42). Additional bond may be orderM upon application of defendant,
garnishee or other person interested. (R. P. G53, G58). Property may
not be condemned or sold without giving bond. (H. P. G59).
Levy and Property Sub ject.-All property of defendant of all kinds
and wherever situated, including credits not due and property or
credits of defendant in hands of anOther and including debt due de-
fendant upon a judgment or decree, may be attached (courts art.
§ 3-305; H. P. G-45); except that proceeds of life insurance and an-
nuity contracts and fraternal order benefits are not subject to attach-
ment (art. 48A. §~ 328, 385), benefits under Workmen's Compensation
Law are not subject to attachment prior to delivery of voucher (art.
101. ~ 50) wages or hire of laborer Or employee not yet due and. the
greater of S120 per week or 75% of a. week's wages or hire earned and
due cannot be attached, which exemption cannot be waived (except
that in Caroline, Kent, Queen Anne's and Worcester Counties, greater
of 75% of wages due or 30 times Federal minimum hourly wage then
in effect is exempt) (art. 9, § 31), and salaries of National, State or
municipal officers or employees and money, property or credits in
hands of National, State or municipal governments or in custody of
law are exempt (8 Md. 95; 142 Md. 52, 120 Atl. 235; 168 Md. 440, 178
Atl.108).
No levy can be made against any~ property of an estate, although
security interests may be enforced in appropriate proceedings. (est.
and tr. art. § 3-114).
Wages of nonresidents are attachable on judgment, warrant or two
non ests in same manner and to same extent as if residents. (art. 9,
§ 32).
PAGENO="0132"
124
Securities may be attached if actually seized or if surrendered to
issuer. (art. 23, §~ 112. 113; art. 95B. § 8-317).
TJncler Uniform Commercial Code, effective Feb. 1, 1964. defend-
ant's rights in collateral may be attached. (art. 95B, § 9-311).
Creditors of husband may attach money or restrain by injunction
payment of money deposited to wife's credit if in fraud of their rights.
(art. 45, ~1, 2).
Indem~n~ity.-Sheriff may demand indemnity bond if he has reason-
able doubt as to ownership of property on which he is directed to levy.
Lien and Priorities.-Attachments are liens and have priority in
order in which levied. Attaching creditors first levying upon personalty
take to exclusion of those whose levy is subsequent or those not levy-
in~. even though latter be judgment creditors.
Re~ease of Property.-Attachment may be dissolved at any time on
appearance of every defendant and filing of approved bond in value
of goods attached or double plaintiff's claim. whicheveris less, condi-
tionecl to satisfy judgment for plaintiff, and may be quashed at any
time for matters apparent on or dehors the record. (R. P. Fl, 051,
057).
SaZe.-Attached property may be sold if court deems this expedient
(R. P. 060), but iii practice this is usually limited to perishable prop-
erty. After judgment of condemnation the plaintiff is entitled to execu-
tion thereof and to have any property that has been condemned sold.
(R P. Fl. F4, C-SO. 060). For procedure in sale see topic Executions.
Third Party Ulain?s.-Claimants of property attached may intervene
by petition. and on their giving bond the property may be discharged
from the levy. (R.. P. Fl, 058).
* T'7acation or A[odification.-WThere a defect is apparent on the face
of the proceedings, an attachment may be quashed on motion by the
defendant or by a third person claiming interest in the property at-
tached. (2 Md. 334; 182 Md. 601, 35 A.2d 641).
Massachusetts Law Digest
Attachment
Caveat.-Ma.ssachusetts prejudgment attachment of perso1~ al Prop-
erty statute, c. 214. § 7. declared unconstitutional. See 340 F. Supp.
741 (D. Mass. 1972). Statute governing prejudgment attachment of
real property, c. 223. ~ 42. 62-66, declared unconstitutional. See 365
F. Supp. 1299 (D. Mass. 1973). This case nullifies attachments of real
property made after Aug. 7. 1973. Attachments prior to Aug. 7~ 1973,
are still valid. See. however, supplement for anticipated decision
confirming or rejecting prior attachment validity. Constables and
sheriffs will not serve prejudgment attachments unless issued pursuant
to new procedure. Mass. R. Civ. P., Rule 4.1, effective July 1, 1974,
pi~ovides revised attachment procedure, requiring notice and hearing,
except on showing of limited exigent circumstances, applicable to
goods. chattels and other property, as well as real estate. Supreme
Judicial Court (SJC) Rule 3:27 sets forth equivalent procedure ap-
plicable to district courts. There is a case pending in Mass. Federal
district court. with respect to constitutionality of repossession of
automobiles without piior notice or hearing See Boland v Essex
Couiity Bank and Trust Co., Civil Action No. 723299 0. Note: Prac-
PAGENO="0133"
125
tice in those courts governed by Ma~s. R. Civ. P. (see topic Actions,
catchhne Caveat) is digested under catchilne superior court. Prac-
tice in dIstrict court and Boston mtmicipal court is digested under
catchime dist.r~ct court. Practice common to both superior and dis-
trIct court is digested without separate designation.
Jet ~oii.s liz. iT7dch Allowecl.-In all personal civil actions in which
a debt or damages are recoverable, pioperty may be attached upon
orieinel writ and held as security to satisfy such judgment or decree
p1 i it t~ n~'z~ ie~o~ ci but no ott~chment of ieol es~te m'rs be made
on a writ returnable before a district court unless damages ~1ernanded
derermined by ccl damnmn of writ) exceed S20 (c. 223. § 42. arn'd
j~7:3. c. 1i~4, ~ ~4) and. in action or suit for an amount which is liqui-
c'cited or ascertainable by calculation, no attachment. by trustee process
or otherwise may be made for larger sum than amount of claim and
amount reasonably necessary to include interest and costs (c. 223,
~ 42A).
Coz'rts Wliklc J[ay Issue lVvit.-All courts may issue writ of
attachment.
I~ fl7~o~e Fucoi Tf~it iJoy Issue.-Attachments may be made in
suits by or a gainst nonresidents as well as in suits by or against resi-
dents. e.22.~1,.
Açr'~ist Ti7zcm TFiit JIay Is~ic.-See subhead In Whose Favor
Writ May Issue.
o;;~. iT7~ ieh TFiit Jlay Issue.-There is no statutory require-
ment that. the claim sued on should be payable within the State. No
d~reet attachment will lie to secure a claim not vet due.
In actions or claims against the. estate of ~a deceased person there
can be no attachment other than a "chip" (nominal) attachment (282
Mass. 45, 1S4 N.E. 6~T), except by permission of the probate court
where. the executor or administrator~was appointed (c. 230, § 7).
Attachment may issue in action for divorce (c. 208, § 33) or separate
support.
G~ounds.-Plnintiff must. show that there is a reasonable likelihood
that lie will recover judgment. including interest and costs, in an
amount. enual to or greater than amount. of attachment over and above
any liability insurance shown by defendant to he available to satisfy
judgment. If plaintiff seeks a writ of attachment, ex parte. plaintiff
must show in addition to above, either: (1) That person of defendant
is not subject to jurisdiction of court in action; (2) that there is a
clear danger that defendant if notified in advance of attachment of
property will convey it. remove it from State or will conceal it; or (3)
there is immediate danger that defendant will damage or destroy
property to be attached. (Rule 4.1, Mass. R. Civ. P.; see also SJC
Rule 3 :271.
Pvoee~xliii~.~ To ObfrI.ii?..--Plaintiff must file a motion for approval
of attachment along with complaint (declaration in district court;
see topic Actions) and afliclavit in support of motion. Copies of mo-
t'ou. complaint, affidavit and notice of hearing must be served on
defendant. Notice of hearin~ must inform defendant that by appear-
ing to be heard on motion for approval of an attachment he will not
thereby submit himself to jurisdiction of court nor waive service of
complaint. and SilmflTtOfl.5 i.inon him in manner provided by law. Minor
proeeclicral variations exist depending on whether attachment is
PAGENO="0134"
126
sought in superior court (Rule 4.1, Mass. R. Civ. P.) or in district
court. (SJC Rule 3 :27).
Attachment Bond.-No bond is required to obtain attachment, but
attaching officer may require sufficient security if there is reasonable
doubt as to ownership of personal property either before or after
attachment (c. 223, § 45A) except in trustee process (c. 246, § 1, arn'd
1913, c. 1114, § 259).
There are certain restrictions on right to attach railroad cars and
engines and steamboats in use making regular passages (c. 223, § 43),
ships and vessels (c. 223, § 44, am'd 1973 c. 1114, § 96), personal
prope~~ty used in printing and publishing a newspaper (c. 223, § 45,
am'd 1973, c. 1114. § 98) and motor vehicles (see infra this topic).
Le~y of Attachment on ReaZ Estate.-Every original writ for the
attachment of real estate shall contain the name aiid last known resi-
dence of each defendant. Original writ for attachment of personal
estate does not require address of defendant. Officer's return on writ
that attachment has been made constitutes valid attachment as between
parties of defendant's right, title and interest in unregistered real
estate not exempt by law. No special description of land attached is re-
quired. To be effective against subsequent creditors or bona fide pur-
chasers. attachment must be recorded at registry of deeds of district
where land lies. Such attachment holds all unregistered real estate,
record title to which is then in defendant's name, including property
conveyed by a deed not recorded before attachment is recorded. (c. 223,
§ 62-66. ani'd 1973, c. 1114, § 104). Attachment of registered land must
be filed and registered in office of assistant recorder for registry district
where land lies. (c. 185, § 78).
Attachment made after Aug. 23, 1945, expires 6 years from record-
ing date unless renewed for subsequent periods of 6 years. (c. 223,
§ 114A).
If an encumbrance is removed after the attachment is made, it inures
to the benefit of the attaching creditor. (c. 223, § 70).
Real estate fraudulently conveyed, or which is held in trust for
debtor, whereby lie is entitled to a present conveyance, or which was
acquired by debtor by a deed describing him as trustee, regardless of
validity of trust or legal effect of designation as trustee, may be at-
tached specially as property of debtor, but must be described with
sufficient accuracy for identification. (c. 223, § 67).
Lev~j of Attachment on Persona~ Property.-A perfected security
interest in personal property, which from its bulk or other cause can-
not be immediately removed, may be obtained by filing within 3
days after attachment a certified copy of writ and return of attach-
inent in office of clerk of city or town in which property is situated.
(c. 223, § 50, arn'd 1973, c. 1114, § 100). Wages may in certain actions
he attached by trustee process (c. 246, § 276), but $125 thereof is
exempt. See generally topic Garnishment.
Other personal property must be kept in possession of the officer,
who may put a keeper over it on authorization of court therefor. Such
property must be removed upon the written request of the defendant,
without unreasonable delay. (c. 223, § 48). In order to have a keeper
appointed, plaintiff must file affidavit with court stating facts which
require such appointment and court must endorse its assent to appoint-
ment upon writ. (~ 48). Unless such request is made by defendant, or
PAGENO="0135"
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by owner or occupant of premises, property may be kept where found.
(~ 49). If defendant requires property to be left on premises it can-
not. be removed, until he has had reasonable opportunity to dissolve
atchmcnt. by giving bond. (Ibid.). Live animals and personal prop-
erty ~iahie to perish, or that cannot be kept without disproportionate
exueiise, may be sold. and proceeds held subject to attachment. (~ 88-
lul'.
Motor vehicle registered in the Commonwealth may not be attached
on mesne process in an action of contract except on consent in writing
of a justice of the court where suif is commenced. (~ 42, 44A, am'd
197:3. c. 1114. §~ 96-97).
There can be no attachment of ~oods for which a negotiable docu-
ment of title is outstanding. unles~ the document be first surrendered
to the person issulug it or its negotiation enjoined. (~ 72).
Personal property subject to a. mortgage, pledge, or lien or sold
under a conditional sale contract of which notice is not recordable
may cc attached as if unincumbered, if the creditor pays or tenders to
the mortgagee, pledgee. lienor. conditional vendor, or his assigns, the
amount for which it is so liable within 10 days a.fter demand. If
attaching creditor denies validity Of any such incumbrance, incum-
brancer or his assigns may be summoned as trustee and validity of
encnmbrance and amount due determined. If validity is upheld, at-
tachment becomes void unless amount due is paid as ordered by court.
1~T4-S:3).
Personal property owned by several jointly may, it seems, be at-
tached on a writ against one of them, but on appraisal and giving of a
bond by the others must. be surrendered to them. (§~ 102-105). This
does not. however, apply to trustee process nor to personal property
belonging to a partnership (interest of a partner in property of part-
nership can be reached only in equity).
Indemnity.-See subhead Attachment Bond.
.Lien.-A lien exists so long as a valid attachment remains in effect.
Priorities.-Successive attachments may be made in different suits
upon the same property, and take priority according to time. In case
of real property, priority is in the order of recording at the Registry.
Any person claiming an interest in property attached, by reason of a
subsequent attachment or otherwise, may by proper proceeding be ad-
mitted to contest the validity of the prior attachment on the ground
that the. amount demanded in the first action was not justly due or
was not payable when it was commenced. (c. 223, §~ 106-113).
Judgment creditors who have not attached have no rights in the
debtor's property as against attaching creditors.
Release of Pro perty.-An attachment may be dissolved by deposit-
ing with attaching officer a sum equal to ad damnum in complaint or
writ, or by giving bond with sureties or an authorized surety company
satisfactory to plaintiff, or approved by a magistrate upon examina-
non. with condition to pay amount plaintiff may recover within 30
days after final judgment and/or to~ pay amount of any special judg-
ment within 30 days after entry thereof. (c. 223, §~ 120-129, arn'd 1973,
c. 1114. §~ 119-121). Attachment may be dissolved as to particular
property by giving bond as above to pay value of such pronerty, which
is fixed by appraisal. (c. 223, § 125, am'd 1973, c. 1114, § 120). Attach-
PAGENO="0136"
128
ment is dissolved by proceedings in insolvency or bankruptcy begun
within 4 months, by appointment of a receiver on a complaint filed
within 4 months (c. 223, § 130, arn'd 1973, c. 1114, § 122), and by a
final judgment in favor of defendant after time for appeal has expired.
(In district court, judgment in favor of defendant dissolves attach-
ment forthwith). If an appeal has been duly claimed in appeals court
or SJC. any attachment or other security as by bond shall stand until
entry of final judgment (c. 223, § 115, am'd 1973 c. 1114, § 116). At-
tachment is also dissolved, except as to property alienated by him be-
fore death, by' death of defe.ndanL if administration is granted on his
estate upon application made within 1 year after death. (c. 223,
§ 116). Also if real property is attached and no service is made upon
defendant. attachment is dissolved unless record shows that notice has
been given to defendant within 60 days or such further time as court
may allow after entry of case. (c. 223, § lisA). Attachment of real or
personal property is dissolved if case brought in district court is not
entered in court within 35 days after return day of writ or process.
(c. 223, § 115B, am'd 1973, c. 1114, § 116A). In district court, attach-
ment remains in force, unless dissolved. until 30 days after final judg-
ment for plaintiff. In superior court property remains subject to at-
tachment for 30 days after expiration of time to appeal from judgment
so that it may be taken on execution, unless attachment is sooner dis-
solved. If an appeal is claimed, attachment remains in force during
appeal and if judgment is affirmed. for 30 days from entry of order
of appeals court. (For property attached or judgment rendered in
Nantucket County above periods are extended to 60 days). (c. 223,
§ 59, am'd 1973, c. 1114, § 102).
Any bond may be executed by another person in behalf of party to
suit, if it appears to magistrate approving it that there is a good cause
why it is not executed by such party. (c. 223, § 133). Sureties on a bond
to dissolve attachment are released by principal's discharge in insol-
vency in proceedings within 4 months after attachment, if original
claim if proved in insolvency would have been barred by a discharge of
defendant (c. 223, § 124).
Sale.-Animals and perishable goods which have been attached may
be sold after appraisal proceedings. (c. 223. § 87-101, am'd 1973, c. 1114,
§~ 110-113). Proceeds of such a sale are held pending final judgment
and are then distributed by court.
Third Party Claims
Superior Court.-Attachment may be made by a party bringing a
countercIaim~ cross-claim or third party complaint in same manner as
upon an original claim. (Rule 4.1 [d], Mass. R. Civ. P.).
Distrkt Court.-TJsual method of asserting third party claim is
through suit for conversion.
17aeation or Modification
Ex Parte Attaclnments.-On 2 clays notice to plaintiff, or on such
notice as court prescribes, a defendant may move, without submitting
his person to jurisdiction of court for dissolution or modification of an
ex parte attachment. At such hearing plaintiff shall have burden of
justifying any finding in ex parte order which defendant has chal-
lenged by affidavit. (Rule 4.i[g] Mass. R. Civ. P. and SJC Rule
3:2T[6]).
PAGENO="0137"
129
Other Attachm,ents.-On application to a justice of court to which
process is returnable, an attacIim~nt found upon summary hearing of
parties to be excessive or unreasonable may be ordered to be reduced
or discharged. or a part of proI~ert.y may be ordered to be released.
114. am'd 19'~3. c. 1114. ~ 11~).
j t u OT 1e~rc/ / a O1~cei -Ihe ~tt~c1ii ~ o~cei 1 ecoi tes luble
to the creditor for the goods attached. I-Ic may deliver them to a person
1 Lii tO ~i i Lileletol w Po theieb~ becomes 1i~ble to I im but this
does ~ior ~1ischrrge the officers liability to the creditor.
Piope it ~t L ~ab7e to Attack me ~?t.~With limited exceptions (see infra
this topic and topic Exemptions), all real anti personal estate liable
to be taken on execution. except such personal estate as is considered
~rom its nature or situat:on exempt according to principles of common
I ~ i s h sti~i ~e c ~ is iub~e to ift~cun1eiiL (c 223 ~ 42
am'd i~3. c. 1114. ~ 94).
Tim-c oi' jfaj~inq Attachment
S~ipeuior Oozirt.-Attachment may be made within 30 days after
order allowing attachment or. upon order of court, subsequent to ex-
pIration of 30-day period. (Rule 4.1[E], Mass. Rules Civ. Procedure).
D2-strict Uourt.-Xo attachment of property can be macic on an
original writ after personal service upon defendant (c. 223, § 30, amjd
19T3. c. 1114. ~ 90). except that on a trustee writ, after service on both
defendant anti trustee. a second service may he made on trustee, to
be followed by second service on defendant within time allowed for
original service on him (c. 246. § 8, am'd 1973, c. 1114, § 264). At any
time during the penclency of action in district court, upon com-
mencement of which an attachment is authorized by law, court for
cause may. on motion ex parte, order such attachment of defendant's
property to secure judgment or decree which plaintiff may obtain
in said action. (c. 223, § 85, am'd 1973, c. 1114, § 108).
Equitable Attachment.-In actions brought in superior court and
SJC and in certain proceedings before probate court, equitable at-
tachment by injunction may he had on usual principles governing in-
~unctive relief. (c. 214. § 3[6]-[9]. arn'd 1973, c. 1114. § 62). Shares in
domestic and foreinn corporations cannot be attached in a civil action
in which only mo~ey damages ar~ sought (c. 223, § 71, arn'ci 1973,
c. 1114. § 62). but. may be reached and applied to satisfaction of claims
(c. 214, § 3[7], am'ci 1973, c. 1114, § 62). Choses in action and any
property, right, title or interest, legal or equitable, within or without
State. which cannot be taken on execution, may, without other ground
of equitable jurisdiction, be reached and applied for satisfaction of a~
debt. (c. 214, § 3[6], am'd 1973, c. 1114, § 62). A civil action to reach
and apply should not be confused with judgment creditors' bills to
reach property that cannot be taken on execution. (215 Mass. 415, 102
N.E. 646).
Michigan Law Digest
Actioi~ in WJ~ icit Allowed.-Atta~linient is available in both con-
tract and tort actions. (2JCLA § GQO.4001; MSA § 27A.4001; Rule
S35). Justice court is proper forum for claims under $100 and is per-
missible forum for claims up to $300. (MCLA § 600.6001; MSA § 27A.-
Attachment
PAGENO="0138"
130
6001; Rule 735). In cities where justice court has concurrent jurisdic-
tion in contract actions up to $500 such court has concurrent juris-
diction in attaclunent actions wherein value of property involved does
not exceed $500. (MCLA § 600.6661; MSA § 27A.6661). Common pleas
court (at present only in Detroit) has exclusive jurisdiction up to
$500 and concurrent jurisdiction with circuit court up to $3,000.
(MCLA § 728.1; MSA § 27.3651).
Courts Which May Issue Writ.-Circuit court (MCLA § 600.4001;
MSA § 27A.4001; Rule 735), justice court (MCLA § 600.7401; MSA
§ 27A.7401), and common pleas court (MCLA § 728.1; MSA § 27.-
3651). For rules as to attachment in justice court and common pleas
court differing from those applicable to circuit court, see infra, sub-
head In Justice Court and Common Pleas Court.
In Whose Favor TVrit May Issue.-Any person, including non-
resident or foreign corporation. (Rule 735).
Agai~st Whon-t Writ May Issue.-Circuit courts have power to issue
attachments with respect to any interest in things which are subject
to judicial jurisdiction of State and belonging to person against whom
claim is asserted whether or not person himself is subject to judicial
jurisdiction of State. (MCLA § 600.4001; MSA § 27A.4001).
Claims on Which Writ May Issue.-Al1 claims, matured or un-
matured. (Rule 735).
Grounds.-(1) Defendant has absconded or is about to abscond
from State or is concealed therein to injury of his creditors; (2) de-
fendant has assigned, disposed of or concealed any of his property with
intent to defraud his creditors or is about to do so; (3) defendant has
removed or is about to remove aiiy of his property from State with
intent to defraud his creditors; (4) defendant fraudulently contracted
the debt or obligation sued upon; (5) defendant is not resident of
State and has not resided therein for 3 months immediately preceding;
(6) defendant is a foreign corporation. (MCLA § 600.4001; MSA.
§ 27A.4001).
Proceedings to Obtain.-After contract action has been commenced
on matured obligation, plaintiff files affidavit or verified complaint
made within 5 days by plaintiff or some person in his behalf that at
time of oath or affirmation defendant is indebted to plaintiff in stated
amount upon a contract or judgment over and above all legal setoffs,
and that deponent reasonably believes in the existence of one or more
of the statutory grounds. (Rule 735).
Where action has been commenced on obligation not yet due, affidavit
must also state when indebtedness will become due and facts justifying
immediate issuance of writ, circuit judge must authorize writ, and no
judgment can he taken until indebtedness becomes due. If obligation is
paid at or before maturity, plaintiff is liable for defendant's costs and
reasonable attorney fees and any actual loss occasioned by the attach-
ment. (Rule 735).
After tort action has been commenced, plaintiff files affidavit or
verified complaint made within 5 days by plaintiff or some person
in his behalf that deponent in good faith believes defendant is liable
to piaint.jff in stated amount over and above all setoffs, and that
deponent reasonably believes in the existence of one or more of the
statutory grounds. Circuit judge must enter order authorizing writ,
PAGENO="0139"
131
fixing bond conditioned on diligent prosecution of action and payment
of any damages and costs awardeddefendant in the case or for wrong-
ful attachment, and specifying amount or value of property to be
attached, and bond with sureties approved by court must be filed.
(Rule 735).
Attachment Bond.-Plaintiff is not required to furnish bond except
ill tort actions. (See supra. subhead Proceedings to Obtain).
Lc~'y.-Sherift attaches so much of defendant's lands, tenements,
goods. chattels. money and effects not exempt from execution, where-
e-~er ±ound within county. as will satisfy plaintiff's demand and costs.
~VEare property seized within county is not sufficient, officer seizes
other pioperty anywhere within State. Realty and interests therein are
se:zed by officer's deposit of certified copy of writ including descrip-
tion of realty with register of deeds for county in which realty located.
Shares of stock or interest of a stockholder in a domestic corporation
are seized in manner provided for seizure of such property on execu-
tion. (See top~c.Execut~ons). (Rule 735).
I2;'~/cwiut/.-~\o provision for levying officer to require indemnity.
L .-Xttaciiment binds ~oods and chattels from time they were
ci Xt~ac~ l~llt 01 iea~t~ co~iiutes lien f om me 1vl~en ceiti
I ~ ry~ ~c' ~nent in 1L(Li1i~ desruptio i or iea1t~ is de1 osited
in cifice of register of deeds in com~ty where realty is situated. (MCLX
c )i~ ~27X4033'~
Puioi~ities.-Where one or more attachments or executions are is-
sued against same debtor or his pio~erty, attachment or execution first
delivered to officer has preferenceS except that if there has been levy
and sale of goods or chattels before a levy under first attachment 01'
execution. ic-c-v on such eoods or chattel~ under first attachment or
not ~ cii nttee ~MCLX ~ 600 600 lISA ~ 27A 3007)
ITurecorded land mortga~e has priority over subsequent attachment
cv~ tlioi ~h CtiiCi ii cicditoi had no notice o~ such moiteage ~heii
~tt~ wie it vis coimi~ei ced (130 l[icl 127 89 XIV 720)
Re7ca~e of Prope rty.-Attached property ~emains in officer's hands
unless defeiidant or other person in ~vhose possession it was found
delivers to officer bond with plaintiff as obligee signed by corporate
surety or two citizens of State who satisfy officer of their financial
rcsnons~hility to extent of bond. Penalty ~f bond is lower of double
the inveiitoiy value or double the amoilint stated in affidavit where
sureties are individuals, lower of one and one-quarter of amount
stated in affidavit, or one and one-quarter of inventory value where
surety is ~orporate. unless judge or circuit coui-t commissioner for
good cause orders lesser bond. In nO event is bondsman liable for
amount in excess of penalty of bond. inventory value of ProP-
erty, or amount claimed in affidavit, whichever is lower. Bond is con-
ditioned on payment of any judgment against defendant within 60
days after entry. Upon delivery of bond to officer, he delivers property
to defendant or person in whose possession it was found, but suit is
not affected by such delivery. (Rule 735).
~S1a1e.-Where attached property consists of animals or is perish-
able. court ma order sale and proceeds are brought into court to abide
court's order. (Rule 735).
Th~;d Party O?aim.s.-See subhead Vacation or lIodiifica.tion. infra.
Vacation or 3[odification..-Any person whose property is attached
PAGENO="0140"
132
or who is in possession of or has an interest in property attached may
apply to circuit judge or circuit court commissioner of county where
writ issued for dissolution of the attachment. Plaintiff is notified and
hearing is held. If attachment found invalid, it is dissolved and prop-
erty is returned to defendant. Defendant may be required to submit
himself to personal jurisdiction of court prior to granting of dissolu-
tion order. Any dissolution order of circuit court commissioner is not
final for 5 days and if appealed has no force to release property until
affirmed by circuit judge, who hears i~atter do novo. (Rule 735).
In Justice Court and Common Pleas Court.-No express provision
for attachment for debts not due, and plaintiff must always give bond
in a penalty double his demand (minimum penalty $200). (MCLA
§ 600.7401: MSA § 27A.7401). Attachment reaches only goods, chat-
tels. moneys and effects within county in which justice resides.
(MCLA §~600.7405-.7409; liSA §~27A.7405-.7409). Grounds are
substantially same as in circuit court, except that removal of property
with intent to defraud creditors refers to r~emoval from county where
application is made or where defendant resides, removal of defendant
or his property from county is additional ground without reference to
intent when coupled with refusal to pay debt or damages, fact that de-
fendant is about to abscond from State is not a ground, and nonresi-
dence in State need only have existed for 1 month. (MCLA
§ 600.7401; liSA § 27A.7401). Different attachments of same property
have priority in order in which served. (MCLA § 600.7423; MSA
§ 27A.7423). Where defendant is not personally served and does not
appear on return day, justice must continue cause for 30 to 90 days.
(MCLA § 600.7419; liSA § 27A.7419). Defendant or any other person
may procure release of property by furnishing proper bond. (MOLA
§~600.7411. .7413, .7431; liSA §~27A.7411, .7413, .7431).
When action is commenced by attachment against foreign corpora-
tion and garnishment proceedings are commenced in same action, if
return of attachment writ shows that copy thereof and also copies of
all garnishee summons have been personally served on officer, mern-
berrn clerk or agent of foreign corporation within State, proceedings
may be had against foreign corporation in same manner as upon re-
turn of summons personally served in actions against natural per-
sons. (MCLA § 600.7437: liSA § 27A.743fl.
See also topics Process: Venue.
Minnesota Law Digest
Attachment
All property not exempt. from execution under judgment demanded
in action (see topic Exemptions) is subject to attachment therein.
(570.04~.
Actions `in. Which Alioved.-Writ is obtainable in district court in
any action for recovery of money except for libel, slander, seduction,
brea oh of promise. false imprisonment, malicious prosecution. or as-
sault and battery (570.01) : in justice court. in any contract action or
action on jud~ment or decree of a court (532.25).
In Wlwse Favor Writ )ifcu Iss~~e.-Anv plaintiff. including nonresi-
dent or foreign corporation. may obtain attachment.
PAGENO="0141"
133
Glain?s on Which Writ 1Iay Issue.-Not necessary that claim sued
on be payable in the State.
(cm ;c mi~t 07 ~ict'on. oi~ Cknm.-In ]ustice. court, action must
Lc commenced at or before issuance of writ; in district court, within 60
~ after its issuance. (570.01).
6io~m7c.-Attachment is allowed in district court when: (1) Debt
was fraudulently contracted; (2) defendant is foreign corporation or
nonresident; (3) defendant has departed from the State, as affiant
verily belteves. with intent to defraud or delay creditors, or to avoid
servtce of summons. or keeps himself concealed therein with like intent;
or (4) defendant has assigned, secreted. or disposed of property or is
about to do so with intent to delay or defraud creditors. (570.02). In
lustice court an additional ground is that defendant resides in another
county and more than 103 miles from residence of justice. (532.25).
Pioceedii~as to Obtain.-In district court. plaititiff must file with
clerk bond for at least $250, with sufficient sureties justifying in ag-
gregate double amoimt of bond. together with affidavit by plaintiff, his
aa-ent or attorney, stating that "a cause of action" exists against de-
fendant and specifying amount of claim, and one or more grounds of
attachment. (570.02. 03).
In justice court, plaintiff or someone in his behalf, must make and
file with justice. an affidavit stating that debt is over $5, amount and
nature of claim, and grounds for attachment. Bond is required before
writ is issued. with sufficient surety in double amount of claim for
damages. not exceeding S100. (332.25. 2.7).
Ismcoime.-In district court, judge or court commissioner approves
bond and allows writ and clerk issues same. (570.01, 04). In justice
court this is clone by the justice. (532.27).
Levy is made by an officer as in case of execution. In case of real
estate, certified copy of writ is filed with register of deeds where land
situated, and copy served on defendant. This creates lien on real estate
at time of filing. (570.05). Perishable property must be sold. (570.07;
532.32).
Priorities between successive attachments are according to times of
actual levies thereunder.
Release of Property.-Defendant may make motion to vacate at-
tachment at any time before trial. (570.09). At any time before entry
of judgment, defendant may secure release of attachment by giving
bond approved by judge or commissioner, or justice if in justice court,
in at least double amount of complaint, or if attached property is of
less value than amount of complaint, for double its value. (570.093).
An attachment of real estate ified with register of deeds is released
by filing certified copy of order vacating attachment, or of judgment
for defendant or of satisfaction of judgment for plaintiff; certificate
of satisfaction or discharge of attachment executed and acknowledged
by plaintiff or his attorney; or deed of release of attached premises.
May also be released by entry in margin of record signed by plaintiff
or his attorney acknowledging release. (570.11).
Third Part~j Clai~ims.-Any person other than defendant or his
agent claiming property levied upon may make and serve on sheriff
affidavit of his title or right to possession of such property and sheriff
may release such levy unless plaintiff, on demand, will indemnify him
PAGENO="0142"
134
by bond in at least double value of property as alleged in affidavit.
(565.10).
Mississippi Law Digest
Attachment
Actions in TVhiclt Allowed.-Attachment at law lies in all actions
founded on any indebtedness, breach of contract or penal statute.
(11-33--i). Exemptions are allowed for trust funds set up by em-
ployer for pension, disability, death-benefits or profit-sharing plans.
(71-1-43).
In TVliose Favor Wvit i1!ay Issue.-Nonresidents, as well as citizens,
can obtain writs of attachment.
Claims on TVhie/t TVrit May Issue.-It is not necessary, in order to
warrant an attachment, that the claim sued on should be payable in
this State. In some cases an attachment may issue on an umnatured
claim. See infra, subhead Grounds for Attachment.
Grounds for attachment are that defendant: (1) Is a foreign corpo-
ration or a nonresident of the State; (2) has removed or is about to
remove himself or property out of the State; (3) so abscOnds or con-
ceals himself that he cannot be. served with a summons; (4) contracted
the debt or incurred the obligation in conducting the business of a
water craft in SOiflC navigable waters of the State; (5) has property or
rights in actions which he conceals and unjustly refuses to apply to the
payment of his debts; (6) has assigned or disposed of, or is about to
assign or dispose of his property or rights in action, or some part
thereof with intent to defraud his creditors; (7) has converted or is
about to convert his property into money or evidences of debt with
intent to place it beyond the reach of his creditors; (8) fraudulently
contracted the debt or incurred the obligations for which suit has been
or is about to be brought; (9) is buying, selling or dealing in futures,
directly or indirectly, or has done so within 6 months; (10) is in de-
fault as principal for public money, due the State, county or munici-
pality; (ii) is a banker, banking company, or corporation, and
received deposits, Irnowing at the time that he or it was insolvent,
or has made false or fraudulent statements as to his or its financial
condition. (11-33-9).
Attachment will lie on ground that defendant is a foreign corpOra-
tion, even though it be domesticated in Mississippi. (181 Miss. 223, 177
So. 653).
The creditor may obtain an attachment for a debt not due by making
an affidavit to any of the last six of the aforementioned eleven grounds
of attachment, or that he has just dause to suspect, and verily believes
that his debtor will remove himself or his effects out of the State before
the debt will become payable, *ith intent to hinder, delay or defraud
his creditors, or has ~lone so with such intent, leaving property in this
state. (11-33-35).
Proceedings to Obtain.-Inorder to obtain an attachment, the credi-
toi or his agent must make affidavit to the amount of his demand and
to one or more of the aforementioned grounds of attachment. (11-
!33-9).
Bond.-The creditor must also give bohd in double the amount sued
for with good surety, to be approved by the officer isstiing the attach-
ment, payable to the defendant and conditioned to pay all damages
PAGENO="0143"
135
adjudged against him, if the attachment is proven to be wrongfully
sued out. (11-33-11). See, however, infra, subhead Chancery Courts.
I~?"~'i2ce of Thrit.-The writ issues on filing of the necessary affi-
davit and bond. (11-33-1~).
Le~~.-An attachment is levied on all unexempt property of the de-
fendant. The books of account of defendant are also seized and all per-
sons own;ng him are summoned as garnishees. (11-33-23).
i(~i.-1f the officer who is required to levy an attachment is in
c~oul:t as to the ownership of property to be levied on, he may require
an indemnity bond in double the value of such property.
A b~ei~t Defendcints.-Defendants who are absent from the State are
brought in l~v a 3 weeks publication (11-33-37), but publication is
not. necessary if writ be served on nonresident defendant and proof of
such service be. made as provided for in case of nonresident defendants
~n chancery. (11-33-39).
In attachments before justices pf the peace nonresident defenda.nts
are brought into court by the posting notices and mailing a copy of
same to their l)Ost' office address if known.
L ai~d. P iorities.-Attachments constitute liens on all property
ill the order in which they are levied, and those first levied must be
first satisfied.
Release of Property.-Defendant may replevy personal property
levied on by giving bond, with good sureties, payable to plaintiff, in
double the value of property. (11-33-45).
D~chqrqe of At tac/iinent.-To sustain the attachment is sufficient to
prove the ~rru~l~ of a single one of the eleven grounds of attachment,
but if the plaintiff fails to do this, the attachment is discharged and the
defendant is allowed all actual damages sustained, costs of the suit,
e nd a reasonable attorney's fee, but judgment against the sureties in
an attachment bond may not exceed its penalty. (11-33-85).
Defendant may discharge an attachment by giving bond in double
the amount claimed by plaintiff. (11-33-59).
Chancery courts have jurisdiction in attachment suits based upon
either a legal or equitable indebtedness, or for breach of contract, or
arising cx delicto against any nonresid~nt, absent or absconding debtor
who has lands in this state, or against a person in this state who has
in his hands effects of or is indebted to such nonresident, absent or ab-
sconding debtor. (11-31-1). A bond is not necessary in an attachment
in chancery unless proceeding is by sequestration.
Missouri Law Digest
Attachment
An attachment may be. had in any civil action in circuit or magis-
trate's court. . .
In 1T7 hose Favor W'rit May Issue.-Any plaintiff, including a non-
resident or foreign corporation, may obtain an attachment. (See 3 Mo.
606: 7Mo. 281).
Ulcthms on Which W'rit May Issue.-It is not necessary that the claim
sued on be payable within the State.
As to claims not due see infra, subhead Grounds.
Grounds for attachment are that defendant: (1) Is not a resident of
this State; (2) is a corporation whose chief office or place of business is
PAGENO="0144"
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out of this State; (3) conceals himself so that the ordinary process of
law cannot be served upon him; (4) has absconded or absented him-
self from his usual place of abode in this State so that ordinary process
of law cannot be served upon him; (5) is about to remove his property
or effects out of State, with intent to defraud, hinder or delay creditors;
(6) is about to remove out of State with intent to change his domicile;
(7) has fraudulently conveyed or assigned his property or effects so as
to hinder or delay his creditors; (8) has fraudulently concealed, re-
moved or disposed of his property or effects so as to hinder or delay his
creditors; (9) is about fraudulently to convey or assign his property
or effects so as to hinder or delay his creditors; (10) is about fraudu-
lently to conceal, remove or dispose of his property or effects so as to
hinder or delay his creditors; or (11) that the cause of action accrued
out of this State, and defendant has absconded or secretly removed his
property or effects into this State; or (12) that the damages for which
the action is brought arose from the commission of some felony or mis-
demeanor or the seduction of a female; or (13) that defendant has
failed to pay the price or value of an article or thing delivered which
by contract he was bound to pay upon delivery; or (14) that the debt
sued for was fraudulently contracted on the part of defendant. Attach-
ment may also be brought for rent due within 1 yea.r in certain cases.
Attachments may issue upon a demand not due in any of the cases
above mentioned, except the first, second, third and fourth; but final
judgment will not be rendered against the defendant until the demand
matures. (C.R. 85.01-.02).
Affi~davit and Bond.-Plaintiff, or some one in his behalf, must make
affidvit that plaintiff has a just demand against defendant, that
amount which affia.nt believes plaintiff ought to recover, after allow-
ing all just claims and setoffs, is . . . dollars, and that affiant has good
reason to believe and does believe that one or more of the grounds for
attachment exists, specifying the grounds upon which he intends to
rely in the language set forth above. Bond must be given in double
amount of debt, by plaintiff or some responsible person as principal
and one or more securities, resident householders or county in which
action is brought, except in suits instituted by the State or a county in
its own behalf. and except where defendant is a nonresident, in which
cases no bond is required, but in the latter case the attachment is dis-
solved, on motion, upon defendant entering his appearance and filing
his answer to the merits unless plaintiff files bond within a time fixed
by court, not exceeding 10 days. If attachment is set aside or dis-
missed, attaching creditor is liable on his bond for such damages as
resulted from his levy and proceedings thereunder. (C.R. 85.04-.06).
Levy.-Officer may seize, as attachable property evidences of debt
of the defendant, as well as other property real, personal and mixed
and also judgment debts; but no property or wages exempt from ex-
ecution may be attached, except in case of nonresident or one who is
about to move out of State. (521.240). In cases before a magistrate, the
attachment cannot be levied on real property. (521.660).
Indernnity.-There is no statutory authority for the officer to require
indemnity before levying.
Priorities.-W here the same property is attached in different actions
by different plaintiffs, the court may determine all controversies and
PAGENO="0145"
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priorities; if the writs issue out of different courts of coordinate juris-
diction, that court out of which the first attachment issues shall deter-
mine all controversies; courts of general jurisdiction shall determine
controversies and priorities between an attachment issued therefrom
and one issued out of a court of limited jurisdiction. In general, pri-
or~ties date from the time of the levy. (C.R.. 85.48).
An attaching creditor is not a bona fide purchaser for value, but
obtains only such rights as the debtor had in the property at the time
and is postponed to other liens or claims on the property which be-
came effective, before the attachment. (112 Mo. 599, 20 S.W. 686).
Relea~~e of P~'opert?,'.-Defendant may retain or regain possession
of properh levied on by giving forthcoming bond in double the value
of such property. (C.R. 85.22).
Sale.-Perishable property may be sold by order of court prior
to termination of the suit. (O.R.. 85.25).
Claim-s of Tlth'cl Per.soms.-Any person claiming property attached,
may interplead in the cause, verifying the interplea by affidavit, and is-
sties may be made upon such interplea, and tried as like issues between
plaintiff and defendant. (C.R.. 85.50).
D~soiution..-At.tachments may be dissolved on motion of the de-
fendaiit. at any time before final judgment in the following cases: (1)
When the affidavit is adjudged by the court insufficient, unless the
plaintiff files a. sufficient affidavit to be approved by the court in such
time as the court directs. (2) When the defendant appears and pleads
to the action and gives bond to the plaintiff with sufficient security ap-
proved by t.he court in double the amount of the property attached,
conditioned that such property shall be forthcoming and abide the
judgment which shall be rendered, when and where the court shall
direct. (3) When the defendant appears and pleads to the action and
gives bond and security in a sum sufficient to satisfy the amount sworn
to in behalf of plaintiff with interest and costs, conditioned that the
defendant shall pay to plaintiff the amount which may be adjudged
in favor of the plaintiff, interest and costs, within 30 days after the
judgment shall be rendered. When an attachment is dissolved all
proceedings touching the property attached and the garnishee sum-
moned, are vacated and the suit proceeds, as if it had been commenced
by summons only. (C.R. 85.46-.47)
See also topics Executions; Exemptions.
Montana Law Digest
Attachment
Actiov-s in Which Aliowed.-Any action upon a contract express or
implied for the direct payment of money, where contract is not secured
by mortgage or lien on real property, or if originally secured, where
security has without act of plaintiff become valueless; also in action
based upon statutory stockholders' liability. (93-4301),
Uouits Which May Issue TTTrit.-Both justice and district courts.
(93-4301, 6908).
In 1T~ hose Favor Writ May Issue.-Any plaintiff (93-4301) ; no pro-
vision discriminating against nonresident plaintiffs.
Claims on Which Writ May Issue.-On unmatured claims, if it ap-
pears from plaintiff's affidavit that CU defendant is about to leave the
51-207-75---iO
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138
State with his property to defraud his creditors, or (2) that defendant
is disposing of, or about to dispose of, property subject to executioi~ to
defraud his creditors. (93-4303).
Grounds.-See supra, subhead Actions in Which Allowed.
Proceedings to Obtain.-Writ is issued by clerk of court (93-4302) or
by justice of peace (93-6908) at or after issuance of summons, upon
plaintiff's filing an affidavit that defendant is indebted in a specified
amount, over and above counterclaims, on a contract such as that de-
scribed above, and that attachment is not sought to hinder, delay or
defraud any creditor of defendant (93-4302).
Attachment bond in double the amount claimed if amount is $1,000
or less, or equal to amount claimed if in excess of $1,000, but in no case
in excess of $20,000, must be filed before writ issues. Within 30 days
after summons served defendant may except to sufficiency of sureties.
Failure so to do is waiver of defects. (93-4304). In justice court, bond
must be for not less than $50, nor more than $300. (93-6909).
Levy may be made on any property of defendant not exempt from
execution (93-4306) but chose in action for personal injuries cannot be
attached (100 Mont. 496, 50 P.2d 249).
Real property is attached by filing a copy of writ and notice of
attachment with county clerk; personal property capable of manual
delivery, by taking into custody, except where in possession of third
person (93-4307) ; investment securities may be attached only by. sei-
zure (87A-8-317, 93-4307); corporate stocks or shares other than
investment securities may be attached either by seizure or by leaving
with president, secretary, cashier or managing agent of corporation,
copy of writ and notice of attachment (93-430~); debts or credits and
personal property in possession of third person, by leaving copy of
writ and notice of attachment with person owing debt or in possession
or control of property; judgments by leaving with clerk of district
court copy of writ and notice of attachment; interest in personal prop-
erty belonging to estate of decedent, by serving personal representative
with copy of writ and notice of attachment and filing copy with clerk
of court in which estate is being administered (93-4307).
Inde?mnity.-Attachment bond required. (93-4337). In event of
third party claim, sheriff may require bond. (93-4320).
Lien accrues at time of attachment and in order of levies. (93-4335).
Priürities.-Levying officer must execute writs against same defend-
ant in order in which he receives them. (93-4335).
Sale of property may be had prior to judgment on order of court,
proceeds to be deposited in court. (93-4318).
J?elease.-After appearance defendant may obtain release of attach-
ment upon filing undertaking in amount to be fixed by court. (93-4327,
4328). If no proceedings have been taken for 5 years in action in
which attachment was issued, defendant or record owner may apply to
clerk of court for release. (93-4331.1).
Discharge.-If it appears writ was improperly or illegally issued,
it must be discharged. (93-4331).
T7cwation or Modification.-If motion based on papers supporting
writ, no notice required; otherwise notice required. Motion may be
made by defendant or any person acquiring an interest in the property
after attachment. (93-4333).
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Third Party C7a1n25.-If third party claims personal property by
f~Eng affidavit with sheriff, sh~riff must deliver property to claimant
unless pJaintiff gives indemnity bond within 10 clays after notice.
~J3-432Ui.
Nebraska Law Digest
Attachment
Action.s in Which Ailowed.-Attachrnent may be allowed in any civil
action for the recovery of money only.
Ccn:rts Which May Issue Writ.-All courts having jurisdiction of
cr:~1 cases.
Time foi Issuance.-Attachment may issue at or after the commence-
ment of an action.
In. Whose Favor Writ May Issue.-Any plaintiff, including a non-
resident or foreien corporation, may obtain an attachment, except that
in an action on a. claim not based on contract, judgment or decree only
a hona fide resident for at least 6 months prior to filing of petition
may obtain attachment on ground that defendant is a nonresident or
forei~n corporation. (25-1001) .,
Claims on lllhiich Writ May Issue.-Attachment may issue on either
matured or unmatured claim. There is no requirement that the claim
sued on should be payable within this State,
Grounds of attachment in action on matured claim are that defend-
ant. or one of several defendants: (1) is a foreign corporation or a
nonresident of State; (2) has absconded with intent to defraud credi-
tors; (3) has left county of his residence to avoid service of summons;
(4') so conceals himself that summons cannot be served upon him; (5)
is about to remove his property, or a part thereof out of jurisdiction
of court with intent to defraud creditors; (6) is about to convert his
property or a part thereof into money for purpose of placing it beyond
reach of creditors; (7)' has property or rights in action which he con-
ceals; (8) has assigned, removed or disposed of or is about to dispose
of property with intent to defraud creditors; (9) fraudulently con-
tracted debt or incurred obligation for which suit is about to be or has
been brought. (25-1001).
On claims not due grounds of attachment are that debtor: (1) Has
sold or conveyed or otherwise disposed of property with fraudulent
intent to cheat or defraud, hinder or delay creditors; (2) is about to
make such sale, disposition or conveyance of his property with such
fraudulent intent; (3) is about to remove property with intent or effect
of cheating, defrauding, hindering or delaying creditors. (25-1049).
Proceed'Mgs to Obtain.- In order to obtain an attachment plaintiff
must file an affidavit showing: (1) Nature of plaintiff's claim; (2)
that it is just; (3) amount affiant believes plaintiff ought to recover;
(4~ existence of some one of grounds for attachment. (25-1002).
If demand is not `founded on contract, original petition must be
presented to some judge of Supreme, district or county court who
must make allowance thereon of amount in value of property that may
he attached and amount of bond, if any, to be triven by plaintiff.
(25-1002). ..
If claim sued on is not due an order is required from court in which
action is brought or from judge thereof or county judge, and before
attachment is allowed plaintiff, his agent or attorney, must make oath
PAGENO="0148"
140
in writing, showing nature and amount of claim, that it is just when
it will become due ~nd at least one of the grounds of attachment on
such a claim. (25-1050).
Bond.-When ground of attachment is (1) That defendant is a
foreign corporatIOn. (2) nonresident, (3) is about to remove his prop-
erty, or part thereof. out of jurisdiction of court, with intent to
defraud his creditors. `or (4) has assigned, removed or disposed of, or
is about to dispose of ~iis prolert3T with intent to defraud his creditors,
order of attachment may issue without nndertaking; under grounds
(3) and (4) a bond shall be filed within 3 days after attachment
is issued. In all other cases, plaintiff must give bond not exceeding
amount of his claim, or in amount fixed by judge allowing attachment,
conditioned to pay damages sustained by defendant if attachment
wrongfully obtained. (25-1003, 1053; 27-402).
Issuance of Writ.-The writ is issued from the office of the clerk of
the court in which the action was brought and directed to the sheriff.
Levy, Ir&ventory and Appraisernent.-Sheriff must make levy in
presence of two residents of county and, with such residents, make and
return an inventory and appraisement of property attached. Where
real property is attached, sheriff must leave with occupant thereof~
or if there is no occupant, in a conspicuous place thereon, a copy of
the order. Accessible personal property is taken into sheriff's custody
and held subject to order of court. (25-1004 to 1008).
Inden'i~nity.-As a practical matter, the officer will refuse to levy
unless indemnified if he fears that he may incur personal liability
by levying, but there is no statutory authority for demanding
indemnity.
Lien.-Order of attachment binds property attached from time of
service. (25-1017).
Priorit'~es.-If same officer has several atta chments against same
defendants he must serve them in order received, and each attachment
is subject to all prior attachments. (25-1007)..
Release or Discharge.-Defendant may obtain release or property
attachect by giving surety bond in double appraised value thereof con-
ditioned that such value and money shall be forthcoming to answer
judgment (25-1009) ; or may obtain discharge of attachment by giving
bond in double amount of plaintiff's claim conditioned for performance
of judgment rendered in the action (25-1024).
Sale of property is by order of court as on execution. (25-1033).
Claims of Third Persons.-If personal property be claimed by any
other person than defendant officer must have validity of claim tried.
(25-1036).
Vacation or Modification.-Defendant may at any time before
judgment upon reasonable notice to plaintiff move to discharge an
attachment as to whole or part of property. (25-1040). If attachment
discharged by order, any party affected and excepting may appeal
within time fixed by court or judge, on giving surety bond, conditioned
for payment of all damage in consequence of appeal if attachment
finally discharged. (25-1047).
In inferior courts rules for attachments are same as in district courts.
For statutory provisions for municipal courts see 26-141-167. In
attachments in municipal courts where only real estate is found, at re-
PAGENO="0149"
141
quest of plaintiff proceedings, are immediately certified to district
court of proper county and action proceeds as though it originated
in that court. (27-426, 26-467).
Nevada Law Digest
Attachment
Actio~.s in TTThiclt Ai7owed aind Grouvds.-With Notice and Hear-
ing: (1) Action upon a judgment or contract, for direct payment of
money which is not secured bymort~aze, lien or pledge upon real or
personal nropertv situated in this State. or if so secured, when such
security has been~rendered valuless or insufficient without act of plain-
tiff or person to whom security was given. If security has depreciated
without such act. attachment lies for excess of debt over value of
security: (2) acti~n in which o~ie or more of grounds with or without
notice exists; (3) action where court finds that extraordinary circum-
stances exist making it improbable for plaintiff to reach property of
defendant b~ execution after judgment.
Without i~otice to defendant, in following actions only: (1) Against
a defendant not residing in this State. Domestic and foreign corpora-
tions qualified to do business in this State are deemed residents; (2)
upon a foreign judgment for direct payment of money; (3) for
recovery of value of personal property which has been taken or con-
verted by defendant without consent of owner; (4) where defendant
is about to remove his money or property from this State and de-
fendant's remaining property will be insufficient to satisfy plaintiff's
claim: (.~) where defendant is, about to give, assign, hypothecate,
pledge, dispose of or conceal his money or property, or any part,
if that remaining is insufficient, to satisfy plaintiff's claim; (6) for
recovery of money or property obtained through embezzlement, for-
gery. larceny or extortion; (7) on~ brought under Uniform Fraudulent
Conveyances Act: (8) one by State, or a political subdivision, brought
under Uniform Reciprocal Enforcement of Support Act; (9) one
where jurisdiction can be obtained only by attachment of defendant's
property. (31.010).
Courts Which May Issue Writ.-District court and justice court.
(31.010, 71,090).
Time for Issuance of Wvit.-The plaintiff at the time of issuing the
summons. or at any time afterwards, may have the property of the de-
fendant attached as security for the satisfaction of any judgment that
may be recovered, unless the defendant give security to pay such judg-
ment. (31.010).
In Whose Favor lVvit May Issue.-There is no provision excluding
nonresidents or foreign corporations from the right to obtain
attachment.
Claims on TT~Itich TVrit May Issue.-There is no provision reouirin~
that the contract or obligation sued on should be made or payable
within this State. Neither is there any provision which authorizes is-
si~ance of the writ on an unmatured claim. A writ may issue for a f or-
eign judgment for direct payment of money. (1973, c. 655).
Poeeeem?as to Obtaii~.-App1ication for writ of attachment must
ha acc'ampamed by affidavit by or on behalf of plaintiff showing nature
at claim and that same is valid; stating amount which affiant believes
PAGENO="0150"
142
plaintiff is entitled to recover; describing in reasonable and clear detail
all facts which show existence of grounds for attachment without
notice or with notice and hearing; describing in reasonable detail
money or property sought to be attached, its location, value, and any
exemption from execution; naming all third persons upon whom
writ of garnishment will be served; and including copy of any foreign
judgment.
Court will order clerk to issue writ of attachment without notice
to defendant if plaintiff's affidavit and any additional evidence meet
these elements and it determines that ground for attachment without
notice exists.
If application seeks a writ of attachment after notice and hearing
and affidavit sets forth items required, court will issue an order to
defendant to show cause why order for attachment should not be is-
sued. Upon hearing held by court without jury, writ of attachment will
be issued if court determines from all evidence that plaintiff's claim is
probably valid or defendant fails to appear. (31.020).
Attachment Bcnd.-Plaintiff must give a written undertaking with
two or more sureties in a sum not less than amount claimed by plaintiff
or value of property to be attached, whichever is less, for payment
of costs and damages, including attorney's fees, should defendant re-
cover ~udgrnent or attachment be discharged. Defendant may except
to sufficiency of sureties, and if they fail to justify, writ must be
vacated (31.030).
The sureties to the undertaking must be residents and householders
or freeholders within the State, and worth double the amount specified
in the undertaking, over and above all debts and liabilities, exclusive
of property exempt from execution. (31.030). The undertaking may
also be made by a surety company authorized to do business in this
State. Surety company bonds must be approved by the judge, clerk, or
deputy clerk. The plaintiff may also deposit cash in lieu of a bond.
(20.030).
E~carnination as to Property or Debts. The defendant, or any person
owing him, may be cited to appear before the court, judge, or justice
of the peace and be examined on oath as to property of defendant or
debts owing to him. (31.100).
Levy.-Stocks, debts and any property not exempt from execution
may be attached: (1) Real property by filing copy of writ with county
recorder, with a description of property attached. and by leaving copy
of writ with occupant, or if not occupied by posting a copy conspicu-
ously on premises; (2) personal property by taking it into custody or
by placing a keeper in charge of going business where such property
is located, during which period defendant may continue to operate
business if all sales are for cash and proceeds given to keeper; (3)
debts, credits and other personal property in possession or under con-
trol of persons other than defendant by service of writ of garnishment.
(31.050-31.060).
Indemnity.-Sheriff or constable may demand indemnity if third
party claim is made. (31.070). Plaintiff must deposit with sheriff
amount sufficient to pay expenses of taking and keeping personal prop-
erty for 30 days. (31.065).
Lien of attachment on real property is conclusively presumed dis-
charged after 10 years. (108.250).
PAGENO="0151"
143
Release of Pi~operty.-Where ~mount sought to he released is less
than demand of writ, court or judge, upon application of defenuant
and notice to plaintiff, may discharge attachment in whole or in part,
upon defendant ~iving bond in amount soueht to be released. Where
amount sought e~uals'~or exceeds demand of~writ, defendant may dis-
charge attachment by giving bond in amount of judgment which may
be recovered in favor of plaintiff, or demand of writ, whichever is less.
On like anpilcatlon writ may be discharged if improperly or im-
providently i~suecl. if property levied on is exempt from execution or
necessary and required by defendant for support and maintenance of
himself and family, or if levy excessive. Property may also be released
upon written stipulation by plaintiff and defendant. (31.180-31.220).
~S~1.-Perishable property may be sold by officer on reasonable
posted notice and attached debts and credits collected if possible with-
out suit. (31.120). Court or judge may order attached property sold as
under execution if beneficial to parties. (31.130). If plaintiff recovers
~ud~meitt attached property is sold under execution. (31.140).
TMici Pai~v U1ain~-s.-If verified third party claim is filed with
attaching officer, he must release property uiuless, within ~ days
after written demand. plaintiff gi~ves undertaking in double value of
Property. Plaintiff or third party claimant is entitled to trial of title
before court within 10 days after filing of claim, on 7 days notice
to claimant. (31.070).
Mortgaged personal property may be attached, at the suit of a
creditor or the mort~a~or. The amount of the debt l)lus interest must be
tendered. and if tli~ riortgagee refuses to accept it or to disclose tl1e
amount due. proceedings may be had as in the case of unencumbered
property. (iO~.140).
New Hampshire Law Digest
Attachment
Prejudgment attachments may be had in all actions at law, upon
notice to defendant. and if defendant objects. a showing by plaintiff
that there is a reasonable likelihood that he will recover judgment
including interest and costs on an amount equal to or greater than
amount of attachment and that unless attachment is allowed, there is a
reasonable likelihood that defendant's assets will be insufficient to
satisfy a judgment or decree. Court may order a prejudgment attach-
ment without prior hearing if plaintiff shows probable cause of his
right to recover and amount thereof, and: (1) There is substantial
danger property will be damaged, destroyed, concealed, or removed
from State; or (2) an attachment is necessary to vest quasi-in-rem
jurisdiction: or (3) in cases for specific performance where there is
imminent danger of transfer to a bona fide third party; or (4) notice.
period under a bulk sale is about to expire and absolute vesting of title
is imminent; or (5) attachment is necessary to secure an important
governmental or general public interest. (c. 511-A).
In Whose Favor Writ May Issue.-There is 110 discrimination
against nonresidents or foreign corporations, except that all writs
brought by nonresidents, corporate or otherwise, must be endorsed
by some responsible resident, who thereby becontes liable for costs.
(c. 509, § 8).
PAGENO="0152"
144
Claims on Which lVrit iJIa~j Issue.-There is no requirement that
the claim sued on be payable in the State and no provision as to issUanCe
of attachment on unmatured claims.
Grounds.-No special grounds are necessary; mere bringing of the
action is sufficient.
Bonds.-Plaintiff is not required to furnish any bond in order to
obtain attachment.
Excessive Attach9nents.-If an excessive or unreasonable attach-
ment of any kind has been made on mesne process, the defendant may
apply to the superior court to have the amount of the attachment
reduced or to have it discharged. Upon such application the party
making the attachment shall have the burden of proof to show that the
attachment is not excessive or unreasonable. If, upon hearing, the
court finds that the attachment is excessive or unreasonable under all
the circumstances, it shall order the reduction or discharge of the
attachment as justice may require. (c. 511, § 53).
Levy.-Reai estate may be attached by the officer leaving an attested
copy of the writ and of his return of the attachment thereon at the
office or dwelling house of the register of deeds of the county in which
the real estate is situate. (c. 511, §3). Personal property is taken pos-
session of by the officer making the attachment. After taking possession
of livestock or articles which are incapable of being conveniently
taken into actual possession, including motor vehicles, trucks, trailers
and tractors, the attaching officer may. within 48 hours thereafter,
leave an attested copy of the writ, and of his return of such taking pos-
session or such attachment thereof, at the home or office of the town
cierk~ and such levy is effective although actual possession is not taken.
(c. 511, § 23). The officer, upon completion of such bulky article at-
tachment is under no duty to care for or preserve the attached prop-
erty unless requested by the attaching creditorS who is responsible for
all reasonable costs and expenses incurred by the officer. including his
reasonable fees, in complying with such request. (c. 511, § 23).
Indem.nit~i.-Although there is no statutory authority therefor, at-
taching officer who fears liability for wrongful levy requires indemnity
bond for value of property to be attached plus anticipated costs.
Encumbered Property.-A creditor or officer attaching encumbered
personal property must pay or tender to the owner of the encumbrance
the amount of his lien. (c. 511. § 26). Encumbrance on real estate may
be discharged by payment of tender of amount of encumbrance to
owner thereof. (c. 511, §~ 10. 11).
Priority.-Attaching creditors acquire liens in the order in which
their attachments are made, and do not share pro rata. (c. 511, § 56).
Release of Pro perty.-A defendant whose real estate has been at-
tached may obtain its release upon application to superior court by
giving bond to plaintiff with sufficient sureties in a penal sum equal
to ad da2mnum or writ or value of real estate attached. (c. 511, §~ 48,
59).
Duration of Thei'i .-Attachment lien continues for 6 years after
judgment on real estate and 60 days after judgment on personal prop-
erty. (c. 511 § 55).
Release on Bond of Defemclant.-The debtor can, by giving suitable
bond~ secure the restoration of the property attached whether it be
real (c. 511, § 48) or personal (c. 511. §~ 35-37).
PAGENO="0153"
145
Sale of Attached Property.-Personal property attached must be
sold by the officer before judgment, if the parties consent thereto in
* writing. (c. 511. § 30). Appraisers will be. appointed and attached
property will be sold when it consists of living animals, or goods liable
to perish or waste, or to be greatly reduced in value by keeping, or
* which cannot be kept without great expense. (c. 511, §~ 31-34).
New Jersey Law Digest
Attachment
C'o~i~.s TF/~~c/~ 1/ c~y I~~ue ~FuIt.-Attachment may issue out of
superior court. county courts and county district courts. (Tit. 2A, c.
- 2 1~ ~ ~2 Xtt~chment in co~i t~ Jistuct couits is limited to
`i~ 1~ op~i \ `ii I pl'imtifi s chi'n mv~ not exceed ~1 000 except
eJ~ence `ic' ons vieie chum mu not exceed S3 000 p1oceedmgs
are same as in other courts. (Tit..2A. c. 18. ~ 62; Tit. 2A, c. 6. § 34;
Rule 0 :8). For property exempt from attachment. see topic
Exemurions.
Ii fl7~ose Fircoi TT~jt JIa'i1 I.ssue.--Writ may issue on application
of any plaint~fl. whether resident or nonresident. (Tit. 2A, c. 26, § 2;
Rule 4:10-F).
~ 1T7~oe~. [Viit JLau Issi'e.-Attachment. may issue a~ainst
i ii ~ opeit~ ot `ill\ defe id'ii t iclud ng fe n'ilec coipo
rd :cns ~nd heirs. devisees. executors. administrators or trustees of
decedents. where grounds for attachment exist. (Tit. 2A. c. 26, § 2). A
~ i ci~ `~ ~ c ~u'ne of en estete in ~n~s of executor `idmims
t1i~:oi~ or trusree may he attached in action aeainst le~atee or next of
kin. (Tit. 2A. c. 26. ~ 0).
`xioedo7~.-(1) Same as would entitle. piajntifl to order of arrest
before judgment. in a civil action. In such cases attachment may issue
against property of female, or of corporation in same manner as though
it were liable to arrest in civil action, except that in action founded
on tort, attachment cannot issue against corporation on which sum-
mons can be, served in New Jersey. (2) Defendant absconds or is non-
resident and summons cannot be s~rvecl on him in New Jersey; but
attachment cannot issue on this ground against rolling stock of com-
mon carrier of another State or gpods of nonresident in transit in
custody of common carrier of New Jersey or another State. (3) Cause
of action existed against a decedent which survives against his heirs,
devisees or personal representatives who (or some of whom) are un-
known or nonresident and cannot be served with summons in New
Jersey, aiid there is property in New Jersey which by law is subject
to plaintiff's claim. (4) Plaintiff has claim of equitable nature as to
which money judgment is demanded, and defendant absconds or is
nonresident and summons cannot be served on him in New Jersey. (5)
Defendant is a corporation created by, laws of another State but author-
ized to do business in New Jersey and such other State authorizes
arraehments against New Jersey corporations authorized to do busi-
ness in that State. (Tit. 2A, c. 26, § 2).
Proceedings to Obta[n.-Action in attachment commenced by filing
a complaint. Venue governed by sante rules applicable to issuance of
summons (except if no rule applicable, venue laid in any county in
which any property to be attached is situated). No writ of attachment
PAGENO="0154"
146
may issue except upon order of court based upon prima facie proof by
affidavit of the cause of action alleged and grounds for issuance of writ.
Writ may be sole or additional process in an action. Court order
must fix the amount or value of property to be attached. Notification
of defendant or his attorney of application for writ is discretionary
with court. On filing with court complaint, affidavits, order and bond
(if required), clerk issues writ in duplicate addressed to sheriffs in
counties in which property to be attached is situated. (Rule 4 :60-6).
In action for attachment in county district court, writ is directed to an
officer of such court, rather than to sheriff. (Tit. 2A, c. 18, § 64). Fur-
ther writs may be issued prior to judgment, on further affidavit and
order. (Rule 4:60-6).
Attachment Bond.-Court, in its discretion, may direct plaintiff to
give bond, with sufficient sureties, to indemnify defendant for all dam-
ages resulting from attachment and taxed costs of action if it is dis-
missed or judgment given for defendant. (Tit. 2A, c. 26, § 7; Rule
4:60-5 [d]). See topic Bonds.
Levy must be made within 30 days from date of writ as follows: (1)
On real property by endorsing upon writ a description of property
and serving a certified copy of writ upon any person in possession of
same, (2) on tangible personal property in possession of a bailee for
which a negotiable document of title is outstanding, by complying
with the provisions of Tit. 12A, c. 7, § 602 and serving a certified copy
of writ upon bailee, (3) on all other tangible personal property by tak-
ing the same into custody or by serving a certified copy of writ upon
person holding same. (4) on choses in action evidenced by negotiable
commercial paper, by taking said paper into custody. or by serving a
certified copy of writ upon person owing same and also serving upon
person in possession of said paper an order of the court enjoining its
negotiation, (5) on negotiable investment securities, by complying
with provisions of Tit. 12A, c. 8, ~ 317, (6) on all other choses in action
by serving a certified copy of writ upon person owing the same, (7) on
legacies or distributive shares in a decedent's estate or a beneficial in-
terest in a trust, by serving a certified copy of the writ upon the fi-
cluciary. (Rule 4:60-7). Sheriff, or court officer in case of county dis-
trict court, makes true inventory of all property attached and ap-
praisement of all personal property attached, endorses upon writ and
duplicate thereof each levy made and the date thereof, annexes thereto
a copy of the inventory and appraisement files same with court and
mails notice of levy and copy of inventory and appraisement to plain-
tiff or his attorney within 5 days after levy. (Rule 4:60-8; Tit, 2A,
c. 18. ~ 64).
UommsoZidation of Actions.-Whenever two or more plaintiffs in sep-
arate. actions obtain attachment writs against same defendant and levy
on same property. the actions may be consolidated to determine dis-
position of attached property. Plaintiff whose attachment writ became
first lien on the property is plaintiff in consolidated action, other
plaintiffs become applying claimants. (Rule 4:60-16).
Lien.-Attachrnent binds attached goods and chattels, rights and
credits. moneys and effects of defendant from time of its execution, and
attached property, unless released, remains during pendency of action
as security for any judgment which may be entered therein. (Tit. 2A,
PAGENO="0155"
147
c. 26. § 8). Attachment from time of its issue is lien on real estate of
defendant throughout State if issued out of superior court and
throughout county if issued out of county court, even though officer
fails to especially attach same or any part thereof. Attachment is
also lien on all real estate acquired by defendant in State or county,
as case may be, after its issue and before final judgment. Lien con-
n es i.irtil u1'u ~ s chum is s'itis~ed ~ttQchment is dischaiged or
iu~i~ment is given against plaintiff (Tit. 2A, c. 26, § 9), and any
cc>llvevcnce of attached real estate prior to release of attachment is
void as against plaintiff (Tit. 2A, c. 26, § 10). Judgment in the action is
Een on defendant's real estate acquired either before or after entry
thereof. (Tit. 2A~ c. 26. § 11).
Attack on writ or levy must be made by motion. Such motion does
not. constitute general appearance. Upon such motion, proof may be
presented by affidavits, depositions or orally before the court. Burden
of proof on plaintiff. Court may vacate writ, or discharge or correct
levy. `Rule 4 :60-11).
- Releast of attached property from lien of attachment, and return
t~iereof. may be obtained by defendant, or any person who had posses-
sion or control thereof at time Of levy, at any time during course of
action. by filing with clerk of court bond in amount and form and with
sureties approved by court, after notice to plaintiff and any applying
claimants. Filmg of bond does. not constitute general appearance.
(Rule. 4:60-43).
Th ii'd Paity G7aim.~.-Any person claiming property attached may
proceed in the action on order to, show cause. (Rule 4 :60-14).
P;'ocedui'e a7'tei Le~y a;2d Retv.~n.-Plaintiff must serve on defend-
cut notice of the attachment and copy of complaint (if not previously
served), and copy of order and accompanying affidavits within 2
-~veeks after fiTing of return, or within such time as court fixes. (Rule
4:60-9). Service of t.he notice is tO be in accordance with Rule 1 :5-2 if
the defendant has previously appeared in the action, or in accordance
with Rule 4:4-4 or 4:4-5 if the defendant has not previously appeared,
or as the court may order. See topic Process. Where notice is served by
publication, plaintiff must furnish defendant with a copy within 5
days after written request therefor. (Rule 4:60-9). Where the defend-
ant has not been served with summOns, he must file his answer or move
against the complaint within 20 days after service of the notice of
attachment, if service made in New Jersey, or within 35 days if service
made outside New Jersey, by registered or certified mail, or within 35
days after last. publication if service made by publication alone, or
within such time as court may fix. Where the defendant has been served
with summons but has not appeared, he has 20 days to move against
the attachment and levy after notice of same has been served on him
or after publication, if service by publication alone. (Rule 4:60-10).
Applying Ulctimants.-At any time before defendant enters appear-
ance, any person having a liquidated or unliquidated claim against de-
fenclant, due or not, may apply to court to be admitted as applying
claimant. Application must be by verified complaint, upon notice to
plaintjff and claimants previously admitted, and will be admitted upon
nrima fecie proof of the cause of action alleged by claimant. Within
10 days after order of admission or such time as court designates,
PAGENO="0156"
148
claimant must serve notice on defendant of admission order and, if
possible, a copy of verified complaint, in same manner as plaintiff must
serve notice of attachment on defendant. Defendant has same time
after service to move or answer as is allowed for answering plaintiff's
complaint. Any applying claimant may defend against the claim of
plaintiff and any other applying claimant by serving and filing notice
of contest of such claim at least 10 days prior to time fixed for trial or
proof thereof. Proceedings on claims of applying claimants do not sus-
pend or affect course of plaintiff's action against defendant. (Rule 4:
60-15).
Appearctnce.-Defendant may enter his appearance at any time
before. final judgment. Thereafter no applying claimants may inter-
vene, lien of attachment continues in favor of plaintiff aiid apnlying
claimants, proceedings with respect to attached property may be had
as if no appearance had been entered, and any judgment in favor of
plaintiff and applying claimants is general. If defendant has not
legally been served with summons or does not appear, judgment is
special against attached property only. (Rule 4:60-12).
Aureiliary Proceedings.-Court may order attaching officer to
prosecute actions to obtain attached property in hands of third per-
sons. including collection of choses in action, trust income or corpus
and legacies and distributive shares of a. decedent's estate, and may
make any orders necessary to preserve attached property, including
orders to attaching officer to deliver property to court appointed re-
ceiver who may be empowered to collect attached assets and apply as
court directs. (Rule 4:60-17; Tit. 2A, c. 26, § 13).
Sale of Attached Property.-Execution sale of attached property
by sheriff or other officer and conveyance pursuant thereto convey all
title held by defendant at time attachment became a lien or acquired
by him thereafter. (Tit. 2A, c. 26, § 15). Court may order sale of
personal property before judgment. (Rule 4:60-17). Sale of attached
personal property pursuant to statute or court order has same effect
as if made by defendant at time when attachment became lien. (Tit.
2A. c. 26. ~ 14~. For effect of landlord's lien for rent on sale of attached
personalty taken on leased premises. see Tit. 2A, c. 42, § 2.
Distribution of Proceeds.-Proceeds of attached property, after
payment of any costs and charges directed by court to be paid there-
from. are applied, first, to payment of plaintiff's judgment and costs
nncl. second, among the applying claimants in proportion to. but not
in excess of, their judgments and costs. (Rules 4:60-17, 4 :60-15[e]).
New Mexico Law Digest
Attachment
Actions in Which Aiiowed.-Attachment may be iSSuedl in any ac-
tioll. whet.li~v on contract or in tort. (26-1-2).
Courts Which May Issue Writ.-A writ of attachment may be se-
cured in district court or magistrate court. (26-1-1. 36-11-1).
In Whose Favor Writ May Issue.-The remedy is available to
any plaintiff incluclin~ a nonresident or foreign corporation.
A~ia'inst Whoirt Writ May Issue.-Mav issue against any person
in both contract and tort actions. (26-1-2, 36-11-1).
PAGENO="0157"
149
Claims on IT7iie.7i Writ )!Ia~ Issue.-An attachment may issue on
a dei~iand not -vet due as upon demands already due. (26-1-1). It may
also issue on a claim which is not payable within the State.
(Irounds of attachment. are that the debtor: (1) Is a nonresident;
(2' has concealed himself. ab~conded or absented himself from his
usual place of abode in State so that ordinary process of law cannot
he served on him: (3) is about to remove his property or effects out of
State or has fraudulently concealed or disposed of his property so as
to defraud. hinder, or delay creditors; (4) is about fraudulently to
convey, or assign. conceal. or dispose of his property so as to defraud,
hinder, or delay creditors: (5) has absconded or secretly removed his
p~opeity into State with intent, to defraud, hinder, or delay creditors,
when debt was contracted out of State; (6) is a corporation having its
principal place. of business out of St.ate, with no designated agent in
State on whom process ma be served; (7) fraudulently contracted
(leht or incurred obligation sued on or obtained credit by false pre-
rcnses: (S) requested plaintiff or his assignor to render work, labor,
or services, constituting subject-matter of debt; (9) contracted the
debt for necessities of life. Foreign corporation doing business in
State without complying with requirements therefore is regarded as
nonresident. (26-1-1, 36-11-1).
P ~ / / ~o O~ ci -Pl~mLifl mu~t file q~ ~i~ct~ it chou lug ~he
enisrence of one or more. of the a~orementioned ~rouncls of attachment.
J'c!hi~cn'?t Bo~d.-X l)lalntlff in a.ttaehmeI~t must ~ive bond for
o i 1e in~ emount of ci -urn iil\ oh ed unless in distuct ~ot rt `ift'tch
ment.. court- fixes a lesser amount~ (26-1-7, 36-11-1).
Piopcnty Sz~b)ect to Attac/imc~nt.-Xll property of debtor, of what-
soever nature. may be at.taehed~ except property specifically exempted
f~-om execution (see Exemptions) and interest of beneficiary of spend-
thrift trust.. (20-1--fl. For purpose of at.t.achment~ situs of debts and
ol)llgatlons is at domicile of ol)hgor and situs of intangible interests in
p~~p~'ty is where such property is located. (26-1-3).
Lccy.-\Vrit is directed to the sheriff, who is commanded to attach
the lands and tenements. goods, moneys, effects and credits of defend-
ant, and is served as an ordinary summons. When lands or tenements
are attached, the officer must briefly describe the same in his return,
and state that he attached all the right, title and interest of the de-
fendant to the same, and must give notice to the actual tenants. (26-1-
17, 36-11-2). Officer must also file in office of country clei~k a notice of
levy, describing real estate levied on and showing title and number of
case and amount of debt or judgment, and when debt is satisfied, officer
inus~ file a release. (24-1-4 et seq.). When goods and chattels,
moneys, effects or evidences of debt are to ba attached~ officer must
SCiZO Sdme. and keep them in his custoctv. if accessible, and if not ac-
cessible, must summons person in whose hands they may be as
garnIshee. When intangible interest in personal 1)ropert3r in possession
of someone other than defendant is attached, officer endorses his levy,
describing property, on copy of writ and serves it on person or
corporation in possession. (26-1-17, 36-11-2). Practice of officer re-
quiring indemnity bond before leyying has fallen into disuse.
Indernnity.-Statute does not give levying officer right to require
indemnity bond.
PAGENO="0158"
150
Lien.-Lien may be released by giving of forthcoming bond.
(26-1-20).
Priorities between successive attachments are according to dates of
levies. Attachment which has been levied has priority over judgment
as to personalty not levied on under execution and as to real property
in county in which no transcript of the judgment has been filed in office
of county clerk,
Sale.-Interest in realty must be sold by special master. (26-1-36).
Sale of personalty same as under ordinary execution. (26-1-37).
Release of Property.-Property attached may be retained by the de-
fendant on giving forthcoming bond in double the value of the
property. (26-1-20).
Third Party Ciairn.s.-Any person claiming any property, or a lien
on any property which has been attached in any proceedings to which
he is not a party, may intervene therein at any time before trial, by
filing a petition under oath, setting up his right. (26-1-29).
Vacation or Moditlcation.-Suit not abated by release of attachment.
(26-1-32).
New York Law Digest
Attachment
Actions in Which Pe~nitted.-Attachment may be granted upon ap-
plication of plaintiff in any action, except a matrimonial action, where
plaintiff has demanded and would be entitled, in whole or part, or in
the alternative, to a money judgment against one or more defendants,
on the grounds specified below. See subhead Grounds and Procedure.
(C.P.L.R~ 6201).
Property Sub ject.-Any debt or property against which a money
judgment may be enforced as provided in C. P. L. R. § 5201 (See topics
Executions; also Exemptions) in subject to attachment. (C. P. L. R..
§ 6202).
Granting of Order.-Order of attachment may be granted without
notice, before or after service of summons and at any time prior to
judgment. Order must specify amount of plaintiff's demand, be in-
dorsed with name and address of plaintiff's attorney, and directed to
sheriff of any county or of the, city of New York where a.ny property
in which defendant has an interest is located or where a garnishee may
be served. Order must direct sheriff to levy within his jurisdiction, he.-
fore final judgment, upon such subject property and debts as will
satisfy plaintiff's demand together with probable interest, costs, and
sheriff's fees and expenses. (C.P.L.R. § 6211).
Courts TVhich May Issue Order.-An order of attachment., being
one which may be granted without notice in supreme court or county
court in any county of State (C.P.L.R. §~ 2212, 2213, 6211), may be
granted upon motion at a motion term or by a justice out of court.
In Whose Favor.-Except as noted hereafter (see subhead Grounds
and Procedure) there are no restrictions on the right of a nonresident
or foreign corporation to obtain an attachment.
Defendant setting up counterclaim or cross-claim against co-
defendant has same right to attachment of plaintiff's or co-defendant's
property as if he had brought action against plaintiff or co-defendant
on his claim. (C. P. L. R. § 6001).
Puhiication.-Seizure of property under order of attachment is one
ground for an order of service of summons by publication, where
PAGENO="0159"
151
service cannot be made by another Prescribed method with due
diligence. (C. P. L. R.. §~ 314. 315).
Groz'ncLs ~nd Procedure.-To procure order of attachment plaintiff
must show that cause of action exists. that action against defendant is
not a matrimonial action. that plaintiff has demanded and would be
entit~ed~ in ~vhole or part, or in the alternative, to a. money judgment
against one or more defendants, and that: (1) Defendant is a. foreign
corporation or not a resident or domiciliary of State; or (2) defendant
resides or is domiciled in State and cannot be personally served despite
diligent efforts; or (3) defendant. with intent to defraud creditors or
to avoid service of summons, has departed or is about to depart from
State, or keeps himself concealed therein; or (4) defendant, with
intent to defraud creditors, has assigned, disposed of or secreted prop-
erty. or removed it. from State or is about to do any of these acts: or
.~) defendant. in an action upon a contract, expr~ss or implied. has
been guilty of a fraud in contracting or incurring the liability; or
6) action is based upon wrongful receipt., conversion or retentioiì, or
aiding or abetting thereof, of any pro~erty held or owned by any
governmental agency, including d. municipal or public corporation. or
officer thereof: or (T) cause of action is based on a judgment of a U.S.
court. or other judgment entitled to full faith and credit or qualified
for recogiiition; or (8) there is a cause of action to recover damages
for conversion of personal property, or for fraud or deceit. (C. P. L. R.
~ 6201). Plaintiff also must show amount demanded from defendant
above all counterclaims irnown to plaintiff. (C. P. L. H. Rule 6212[a]).
Within 10 days after granting of order of attachment, plaintiff
must flle it. with affidavit, other papers upon which granted, and
summons and complaint, or. unless time for fflin~ is extended, order is
inv~iidl. Provision exists for dema~icl by defendailt. that all supporting
papers be served upon him. (C. P. L. R. Rule 6212[c], [cl]).
Attachment Bond-Plaintiff must, before granting of order, give
undertaking which must be at least $250, a specified part thereof
conditioned that if defendant recpvers judgment or it is finally deter-
mined that plaintiff was not entitled to attachment, plaintiff will pay
all legal costs and damages which defendant may sustain by reason
of attachment. and balance conditioned that plaintiff will pay all
sherifi's fees Plaintiff's attorney not liable to sheriff for sheriff's fees.
(C. P. L. H. Rule 6212[b]).
S'cicke of ~S~um*mon.9.-Order of attachment granted before action is
commenced is valid only if, within 60 days after order is granted, a
summons is served upon defendant, or service by publication is com-
menced (and subsequently completed). If defefidant dies within 60
days after granting of order and before summons served upon him or
publication completed, summons must be served on his executor or
administrator within 60 days after issuance of letters. Upon such terms
as may be just and upon good cause shown, court may extend time,
not exceedine 60 days, within which summons must be served or pub-
lication commenced provided application for extension is made before
expiration of time fixed. (C. P. L. H. § 6213).
Lei~,'.-Sheriff must levy upon any interest of defendant in per-
sona.l property, or upon any debt owed to defendant, by serving a copy
of order of attachment upon garnishee, or upon defendant if property
PAGENO="0160"
152
to be levied upon is in defendant's possessioi~ or custody, in same
manner as a summons. with minor exceptlons. Levy by service of order
of attachment upon a person other than defendant is effective only if,
at time of service, he owes debt to defendant or is in possession or
custody of property in which he knows or has reason to believe
defendant has an interest., or if plaintiff has stated in a. notice which
is served with order that a specified debt is owed by peiso11 served to
defendant or that defendant has an interest in specified property in
possession or custody of person served. All property in which de-
fenclant is known or believed to have an interest then in and thereafter
coming into possession or custody of such a person, including any
specified in the notice, and all debts of such a person, including any
specified in the notice, then due and thereafter coming due to de-
fendant, are subject. to levy. Person served with order must immedi-
ately transfer or deliver all such property, and pay all such debts upon
maturity, to sheriff and execute any document necessary to effect
payment. transfer or delivery. After such payment, transfer or de-
livery, property coming into possession or custody of garnishee, or
debt incurred by him. aie not subject to the levy. Until such pa3rment,
transfer or delivery is made. or until expiration of 90 days after service
of order of attachment upon him, or of such further time as is provided
by subsequent order of court. served upon him, garnishee is forbidden
to make or allow any sale, assignment or transfer of, or any inter-
ference with any such property, or pay over or otherwise dispose of
any such debt to any person other than sheriff, except upon direction
of sheriff or pursuant to court order. Garnishee, however, may collect
or redeem an instrument received by him for such purpose and he may
sell or transfer in good faith property held as collateral or otherwise
pursua~it to pledge thereof or at direction of any person other than
defendant authorized to direct sale or transfer, provided that proceeds
in which defendant has an interest be retained subject to the levy.
Plaintiff who has specified personal property or debt to be levied upon
in a notice served with an order of attachment is liable to owner of
property or person to whom debt is owed. if other than defendant,
for any damages sustained by reasoii of the levy. Where property or
debts have been levied upon by service of order of attachment, sheriff
must take into his actual custody all such property capable of delivery
and must collect and receive all such debts. Plaintiff may commence a
special proceeding against garnishee served with order to compel pay-
ment, delivery or transfer to sheriff of such property or debts, or to
secure a judgment against garnishee. Notice of petition must also be
served upon sheriff. Garnishee may interpose any defense or counter-
claim which he might have interposed against defendant. Court may
permit any adverse claimant to intervene. At expiration of 90 days
after levy is made by service of order of attachment, or of such fur-
ther time as court, upon motion of plaintiff, has provided, levy is void
except as to property or debts which sheriff has taken into his actual
custody, collected or received or as to which a proceeding has been corn-
menced by plaintiff as aforementioned. (C.P.L.R. § 6214).
If plaintiff so directs and furnishes sheriff indemnity satisfactory
to him or fixed by court, sheriff must levy upon property capable of de-
livery by taking property into his actual custody and forthwith serve
copy of order of attachment upon person from whom property taken.
PAGENO="0161"
153
(C. P. L. B. § 6215). Subject to du~ process requirements of U.S. Con-
stitutiom court upon presentation of affidavit and undertaking shall
grant order directing sheriff of county where chattel is found to seize
it, and court may direct that if chattel is not delivered to sheriff he may
enter and search place where chattel may be. In alternative, court may
grant restraining order that chattel not be removed, disposed of, or
allowed to become subject to security interest or lien. (C. P. L. B.
~ ~1n2~.
Sherifi levies upon interest of defendant in real property by ffling
wirJ rler~ of county jli which property is located a notice of attach-
incur indorsed with name and address of plaintiff's attorney and stat-
ing names of parties to the action, amount of plaintiffs claim and a
descriution of property levied upon. Clerk records and indexes notice
in same books. in same manner and with same effect, as a notice of
peiidencv of action. (C. P. L. B.. § 6216).
Priorities among two or more orders of attachment against same de-
fendant are in order in which they were delivered to officer who levied
unon property or debt. Same rule applies as between executions and
orde:-s of attachment delivered to same enforcement officer. Where two
or more executions or orders of attachment aeainst same defendant are
delivered to did~ereut enforcement. officers fo~ levy, and personal prop-
errv or debts of defendant are. levied upon within jurisdiction of all
such officers. proceeds are applied first to execution or attachment de-
livered to levying oflicer. and thereafter applied to executions and at-
taehmeni-s delivered to other officers. if such officers make a demand
upon leving officer prior to distribution of proceeds in order of cle-
mend. An execution or attachment returned by an officer before a levy,
or deitvered to him after Proceeds of levy have been distributed, cannot
be satisfled out of such proceeds. (C.P.L.R. §~ 6226, 6234).
01 othei D~hpo~itom-If urgency of case requires, court may
direct sale or other disposition of property. specifying manner and
terms thereof. with or without notice. (C. P. L. B.. § 6218 [a]).
/ r,r ( jru/ to, Riaht -W~heie plaintifl has clelneied oicler
of attechm~nt. to sheriff, piaintiff's rights in debt owed defendant or in
interest of defendant in personal property not exempt from attach-
ment, are superior, to amount of attachment, to rights of any trans-
feree, except: (a) transferee who acquired same before levy for fair
consideration or without knowledge àf order of attachment, or (b)
transferee who acquired same for fair consideration after levy without
knowledge thereof. while it was not in possession of sheriff. (C. P. L. R.
6203).
Fac'tion 01 il[od~ficat2on.-Prior to application of property or debt
to satisfaction of judgment, defendant, garnishee, or any person hav-
ing an interest in property or debt attached, may move, on notice to
each party and sheriff, for order vacating or modifying order o-f at-
tachment. Court must give plaintiff reasonable opportunity to correct
any defect. If, after defendant has appeared in action, court deter-
mines attachment is not necessary to' security of . plaintiff, it must
vacate attachment. Such motion is not, of itself, appearance in action.
(C.P.L.R.. § 6223).
D ~ec/i arge, Annulment and Can cellation..-Defendant whose prop-
ertv or debt has been levied upon may move, upon notice to plaintiff
end sheriff, for order discharging attachment' as to all or a part, of
51-207-75------11
PAGENO="0162"
154
property or debt upon payment of sheriff's fees and expenses. On such
motion, defendant must give an undertaking, in an amount equal to
value of property or debt sought to be discharged, that defendant will
pay to plaintiff amount of any judgment which may be recovered in
the action against him, not exceeding amount of undertaking. Making
a motion or giving an undertaking under this section does not of itself
constitute an appearance in the action, (C.P.L.R. § 6222).
Order of attachment is annulled when action in which it was granted
abates or is discontinued, or a judgment entered in favor of plaintiff
is fully satisfied, or judgment is entered in favor of defendant. In
latter case a stay of proceedings suspends effect of the annulment, and
a reversal of vacating judgment revives order of attachment. (C.P.L.R.
§ 6224).
Upon motion of any interested person, on notice to sheriff and each
party, court may direct clerk of any county to cancel a notice of attach-
inent and may direct sheriff to dispose of, account for, assign, return
or release any property or debt, or proceeds thereof, or any undertak-
ing, or to file additional inventories or returns, subject to the payment
of sheriff's fees and expenses. Court must direct that notice of motion
be given to plaintiffs in other orders of attachment, if any, and to
judgment creditors of executions, if any, affecting any property or
debt, or proceeds thereof, sought to be returned or released. (C.P.L.R.
§ 6225).
Claims of TI~ird Fersons.-Prior to application of property or debt
to satisfaction of a judgment, any interested person may commence a
special proceeding against plaintiff to determine rights of adverse
claimants to the property or debt, `by serving a notice of petition upon
sheriff and upon each party in same manner as a notice of motion. The
proceeding may be commenced in county where property was levied
upon, or in county where order of attachment is filed. Court may vacate
or discharge the attachment, void the levy, direct disposition of the
property or debt, direct that undertakings be provided or released, or
direct that damages be awarded. Where there appear to be disputed
questions of fact, court must order a separate trial, indicating person
who shall have possession of the property pending a decision and
undertaking, if a.ny, which such person shall give. If court determines
that adverse claim was fraudulent, it may require claimant to pay
plaintiff reasonable expenses incurred in the proceeding, including
reasonable attorney's fees, and any other damages suffered by reason
of the claim. (C.P.L.R. § 6221).
North Carolina Law Digest
Attachment
Attachment and garnishment is governed by G.S. §~ 1-440.1 through
1-440.46.
Actions in Which Allowed.-Attachinent may be had in any action,
the purpose of which, in whole or in part, is to secure judgment for
money, or in any action by wife for alimony or for maintenance and
support, or for custody and support of children, but not in any other
action. (1-440.2).
Courts Which May Issue lVrit.-Clerk or judge of appropriate trial
division in county in which action has been or is being commenced may
issue order of attachment. (1-440.5).
PAGENO="0163"
155
In TTTko,se Favor TT7vit 2JIay Is~ue.-No discrimination against non-
residents or foreign corporations ~yitli respect to obtaining attachments.
Agcth~-st 137~O1i?. lint JIay lss~~e.-Attachment may issue against
am- defendant as to whom the necessary grounds (see infra) are shown
to exist.
C7a~ms on ll7ejch IFnit JIay Is~ie.-~\Vrit may issue only on one or
more grounds specified by G.S. 1L~~440.3 and grounds must appear by
affidavit. (1-440.11; 229 s.C. 321.49 S.E. 2d 621).
Gnoi~d.~.-Order for attachment may `be issued when defendant:
(1) Is nonresident, foreign corporation or domestic corporation whose
president, vice-president, secretary or treasurer cannot be found in
State after due dilligence: or (2) is resident of State who, with intent
to defraud his creditors or to avoid service of summons, (a) has de-
parted or is about to depart from State or (h) keeps himself concealed
therein: or (3) person or domestic corporation who or which, with
intent to defraud his or its creditbrs. (a) has removed or is about to
remove property from State or (b) has assigned. disposed of or secreted
or is about to assign, dispose of or secrete property. (1-440.3).
P1oceedi'i2c.~ to O1da~n.-Plaiiitiff, or his a~ei~t or attorney, must file
affidavit that plaintiff has commenc~d or is ~bout to coni1ne~r~ce action,
purpose of which in whole or in part is to secure judgment for money
and amount thereof. Affidavit must also state nature of such action
and around or grounds for attachment.. If action is based on breach of
c-entree:. affida~bt must state that plaintiff is entitled to recover amount
e i iud~n cur ~oli&1t mci ~nd aho\e all counteiclam 51 nawn
d 4 t afle~ct i~ riom d rot atttcl meet that deiei cT~nt
has done or is about to do any act *ith intent to defraud his creditors,
affidavi: must state facts and circumstances supporting such allega-
tions. Verified complaint may be used as affidavit. (1-440.11).
Attc'ci~me;~t Rond.-Plaintiff must furnish bond in such amount
as court. deems necessary to afford reasonable protection .to defendant,
in no case to be less than $200. (1-440.10).
Order of Attaclim.ent.-TJpon giving of proper bond and filing of
afliclavit. court will issue order of attachment. directing sheriff to attach
and safely keen all property of defendant within sheriff's county
which is subject. to attachment, or so much thereof as is sufficient to
satisfy plaintiff's demands, plus costs and expenses. (1-440.12).
Additional orders of attachment in~y be then or later issued, directed
to sheriff of any other county in which defendant may have property.
(1-440.13).
Levy.-Provision is made for levy on real property (1-440.17), levy
on tangible personal property in defendant's possession by seizure
thereof (1-440.18), levy on stock `~ in corporations (1-440.19), and
levy on goods in warehouses (1-440.20). Levy on other tangible per-
sonal property not in defendant's l~ossession is made as provided by
1-440.25 relating to garnishment. Sheriff is not required to levy upon
personal property before levying upon real property. (1-440.15).
Ee'enmption.-Payinents constituting aid to blind award not subject
to levy under execution, attachment or garnishment. (111-18).
Lien.-Upon securing order* of attachment, plaintiff .ma.y cause
notice of issuance of order to be filed with clerk of court in any county
in which ,plaintiff believes defendant has real property. Clerk must
file th s notice on Es pendens docket Where levy is made on real prop
PAGENO="0164"
156
ert.y, lien attaches and relates back to time of filing of notice of us
~pendens. If no entry of issuance of order of attachment is made on lis
pendens docket of county in which land lies prior to levy, lien attaches
only from time of docketing of certificate of levy. A levy on tangible
personal property in hands of a garnishee creates lien from time of
such levy. (1-440.33).
ppwr~ties.-Priority of attachment liens is same as order in which
attachments were levied, subject to aforementioned provisions relating
to time when lien of attachment begins with respect to real property.
Simultaneous levies create simultaneous liens, and in such case pro-
ceeds are prorated among attaching creditors. (1-440.33).
Release of Property.-Defendant may move court to discharge at-
tachment upon his giving bond for property attached. Such motion
constitutes general appearance if no prior general appearance has been
made by defendant. Amount of bond must be double amount claimed
by plaintiff or double value of property attached, whichever is less.
Upon filing of satisfactory bond, court will issue order discharging
attachment in accordance with defendant's motion. (1-440.39).
Sciie.-Before judgment, sheriff may apply to court for authority
to sell property seized pursuant to order of attachment (1) if property
is perishable or (2) if property is not perishable but (a) will mate-
rially deteriorate in value pending litigation or (b) will likely cost
more than one-fifth of its value to keep pending final determination
of the action. (1-440.44).
Third Party Claims.-Any person other than defendant who claims
property which has been attached, or any person who has acquired
lien upon or interest in such property, whether acquired prior to or
subsequent to attachnient, may (1) apply to court to have attachment
order dissolved or modified, or to have bond increased, upon same
conditions and by same methods as are available to defendant, or (2)
intervene and secure possession of property in same manner and under
same conditions as provided for intervention in claim and delivery
proceedings. (1-440.43).
TTa.catiom or A[odifieation.-At any time before judgment in prin-
cipal action, defendant whose property has been attached may
specially or generally appear and move court to dissolve order of
attachment. When defect alleged as ground for motion appears upon
face of record, motion is heard and determined upon record. When
defect does not appear upon face of record, motion is heard and deter-
mined upon affidavits filed by plaintiff and defendant, unless prior to
hearing jury trial demanded in writing by plaintiff or defendant. If
jury trial demanded, issues are determined at trial of principal action
unless judge orders earlier or separate trial. (1-440.36). At any
time before judgment in principal action, defendant may apply to
cOurt for order modifying order of attachment and motion is heard
upon affidavits. (1-440.37).
North Dakota Law Digest
Attachment
Actions in Witicit Ailowed.-Rernedy of attachment may be used in
action on contract or judgment for recovery of money only, for the
wrongful conversion of personal property,. or for damages, whether
arising out of contract or otherwise. (32-08-01).
PAGENO="0165"
157
Courts Which May Issue Writ.-Warrant of attachment may be ~s-
sued by district court (32-08-01), county court of increased jurisdic-
tion (27-08-20) or justice court. (33-05-01).
Against TVho~m Writ May Issue.-Writ may issue against any in-
dividual or corporate defendant; provided grounds exist, but prop-
erty of banks is exempt from attachment. (6-08-06).
C7r'im~s oa TT7~ ich Writ May Issii~e.~Writ may issue in any action
for recovery of money only. whether or not due and payable within
this State: attachment may issue on a. claim before it is clue if grounds
for attachment number 3. 4~ 6 or 7 exist. (32-08-02).
Goi~7~.-The grounds for attachment are that the defendant: (1)
is net a resident of tile State. or is a foreign corporation; (2) has ab-
sconded or concealed himself; (3) has removed or is about to remove
his piopeity, or a material part thereof from this State, not leaving
enough therein for the payment of his debts; (4) has sold, assigned,
transferred. secreted. or otherwise disposed of. or is about to sell,
assign. transfer. secrete: or otherwise dispose of his property with in-
tent. to cheat or defraud his creditors~ or to hinder or delay them in
tue collection of their debts: (5) is about to remove his residence from
the county where lie resides. with the intention of permanently cliang-
fn~ the same. and fails or neglects, on demand, to give security for
th~ debt on which the action~is cdmmenced; (6) incurred the debt
upon which the action is commenced for property obtained under false
pretenses; (7) is about. to remove his propert3T or a material part
thereof. from the State. with tile intention or effect of cheating or dc-
frauding his creditors, or hindering or delaying them in the collection
of their debts: and (8) that the action is to recover purchase money
for personal property sold to the defendant.
In action against, owner of motor vehicle for damage alleged to be
caused by negligence of owner or agent, the motor vehicle alleged to
have caused the accident may be attached. (32-08-01).
Pioeccdinps to Obtain .-Warrant of attachment may be issued upon
filing with t.he court a. verified complaint, an affidavit setting forth
one or more of the grounds of attachment in the langnage of the stat-
ute. and the attachment bond. (32-08-05).
Bond.-Plantiff is required to give an undertaking with sufficient
sureties, in amount in discretion of court and in no case less than $500
(32-08-06), except in justice court, bond must be not less than $50
(33-05-02).
Issu.ance.__WTarrant of attachment is issued by clerk of court in
which action is commenced, and is attested in name of presiding judge,
and sealed with seal of court (32T-08-O4) or if in a justice court, by
justice (33-05-01).
Levy of a warrant is made as follows: (1) Upon real property by
the sheriff filing with the register of deeds of the county in which the
property is situated, notice of attachment, subscribed by him, stating
the names of the parties to the a~tion, the amount. of the plaintiff's
claim as stated in the warrant and a description of the property levied
upon, which notice must be recorded and indexed by the register of
deeds in his office (2) upon personal property which by reason of its
bulk or other cause cannot be immediately removed, and range cattle
and horses between Nov. 1 and May 15, by the sheriff filing with the
register of deeds a notice of the same kind as in case of real property;
PAGENO="0166"
158
~3) upon personal property capable of manual delivery, including
bonds, promissory notes or other instruments for the payment of
money, by taking the same into the sheriff's actual custody, and deliv-
~ering a copy of the warrant to the person from whose custody such
~roperty is taken; (4) upon other personal property by leaving a copy
of the warrant and a notice showing the property attached with the
person holding the same, or, if it consists of a demand other than as
above specified, with the person against whom it exists, or if it con-
sists of a~ right or share in the stock of a corporation or interest or
profits thereon, with the president or other head of the corporation, or
the secretary, cashier or managing agent thereof. (32-08-10).
In cases (1) and (2) above the sheriff must, within 30 days after
the levy, serve the warrant of attachment together with a notice of
levy, describing the particular property levied on, in the manner pro-
vided for the service of a summons, as follows: (1) If the levy is made
upon real property. upon the occupant thereof, if any; (2) if upon
personal property, upon the person in whose custody the same may
be. The failure of the sheriff to serve such warrant or notice does not
invalidate the levy, but the sheriff is liable to the person whose prop-
erty is attached for any damages which he may sustain by reason of
such default. (32-08-12).
Lien of attachment is valid from time of levy. (32-08-10).
Pr~or~ties.-Attachments rank in order of times of levies. Lien of
attaching creditor is superior to claims of subsequent purchasers or in-
cumbrancers and, as to land, superior to unrecorded conveyance or lien.
(47-19-41).
Dischcirge.-The defendant may at any time after he has appeared
in the action and before final judgment apply to the clerk who issued
the attachment or to the court to discharge the attachment as to the
whole or any part of the property attached. (32-08-18). On such ap-
plication defendant must give an undertaking with sufficient surety to
the effect that the attached property shall be forthcoming in substan-
tially as good condition as it is at the time of the applicatiOn to answer
any judgment which plaintiff may recover against him in the action.
The undertaking must be in an amount equal to the value of the prop-
ertv according to the sheriff's inventor; or the defendant may at his
election give an undertaking with sufficient surety to the effect that
he will on demand pay to the plaintiff the amount of any judgment
which may he recovered in the action against him not exceeding a sum
specified in the undertaking, with interest. The sum so specified must
be at least equal to the amount of the plaintiff's demand as specified in
the warrant of attachment; or. at the option of the defendant. equal
to the appraised value of the property attached according to the
sheriff's inventory, or, i~f the application is to discharge the attachment
as to a part only of the property attached, equal to the appraised value
of that part. (32-08-19).
Sale.-Perishable property may be sold by order of court by sheriff
at public auction with or without notice as urgency of case may re-
quire; if attached property is liable greatly to depreciate in value
during the pendency of the action, or consists of live animals, sale may
be ordered by court on notice. (32-08-17).
In case plaintiff recovers judgment. sheriff shall satisfy same out of
property attached by selling attached property under execution.
(32-08-27).
PAGENO="0167"
159
Third Party Uiaims.-If a third person makes affidavit of title, or
right to possession of attached property, stating value and ground of
title or right. sheriff may release levy unless plaintiff on demand in-
dcmnifles `~heriff against ~such claim b~v an undertaking, with sufficient
surety: no claim exists against sheriff as such unless third party claim
is filed. (32-08-13).
T~tcano it or J[odifica.tio n.-Defendant at any time after appearance
and before final judgment. may api~ly to court for discharge of attach-
ment in whole or in part. (32-08-18).
~irniiar application may be made by any person who has acquired
a lien or interest in the property after it is attached. (32-08-24).
Grounds f or attachment may be challenged and heard by court on
affidavit or other proof. and if aipears attachment was irregularly
issued, or that affidavit on which it was issued was untrue, attachment
must be discharged (32-08-24') . the~eupon sheriff must surrender proP-
ertv to defendant ~32-QS-25).
Ohio Law Digest
Attachment
Actioirs in lVlu'ch Allowed.-A~y civil action for the recovery of
money.
Co~u'ts Tr7i.ich 2fay Issue Writ.-~--Court of common pleas, county or
mumcipal court.
TFhcr Writ Jia?J Issue.-At or after commencement of action.
Jr fl7~ ose Fu cor TFrit JIay Issue.-Ariy plaintiff, including non-
resu~tent or jordan corporation.
(iui;'rs or T17~ kh Writ J[ay Issu~.-Xo requirement that claim sued
on be payable in State. See also infra. subhead Attachment before
Debt Due.
Grounds for attachment against property other than personal earn-
ings in court of common pleas are that defendant or one of several de-
fendants: (1) Is foreign corporation which has not qualified to do
business in State: (2) is not resident of State; (3) has absconded
with intent to defraud creditors; (4) has left county of residence to
avoid service of summons: (5) so conceals himself that summons can-
not be served: (6) is about to remoye his property or part there.of, out
of jurisdiction of court, with intent to defraud creditors; (7) is about
to convert his property, or part thereof, into money for purpose of
placing it beyond reach of creditors; (8) has property or rights ill
action which he conceals; (9) has assigned, removed or disposed of, or
is about to dispose of, property or part thereof with intent to defraud
creditors; (10) has fraudulently or criminally contracted debt, or
incurred obligation for which suit is about to be or has been brought;
(11) that claim is for work, labor or necessaries; or (12) has not com-
plied with provisions of bulk transfers law. (2715.01).
Attachment will not be granted on grounds (1) or (2) unless claim
is for debt or demand arising on c~ntract, judgment, or decree, or for
causing damage to property or death or personal injury by negligent
or wrongful act. (2715.01).
Attachment through garnishment granted against personal earn-
ings only after judgment obtained by plaintiff. (2715.01).
County court attachment may issue in civil action for recovery of
money, before or after its commencement, on any of grounds (3) to
PAGENO="0168"
160
(11) available in court of common pleas, or if claim arises on contract,
judgment or decree, on ground that defendant is corporation with no
officer to serve or no place of business in county. (1911.21).
Affidavit must be filed by plaintiff, his agent or attorney showing:
(1) Nature of his claim; (2) that it is just; (3) amount which affiant
believes plaintiff ought to recover; and (4) existence of any of fore-
going grounds. (2715.03).
If action is before county court judge, affidavit must also state that
property sought to be attached is not exempt from execution, attach-
ment or sale to satisfy judgment or order. (1911.91).
Statutory demand must he served upon debtor after judgment
obtained before order for attachment of personal earnings is granted.
(2715.02). See topic Garnishment.
Orders to Different Uounties.-Orders of attachment may issue to
sheriffs of different counties.
Bond in double amount of plaintiff's claim must be given unless
ground of attachment is that defendant is nonresident or foreign
corporation. In case before county court no bond required on claim for
work. Plaintiff may. in lieu of bond, deposit currency or negotiable
government bonds in amount double amount of claim. (1911.22,
2715.04). Upon defendant's motion, if plaintiff's surety moved from
State or is not sufficient, order of attachment may be vacated unless
additional security given. (2715.43).
Attachment Before Debt Dve.-Before claim is due, creditor may
sue and attach debtor's property when debtor, with intent to hinder,
delay or defraud creditors: (1) Has sold, conveyed or otherwise dis-
posed of property; (2) is about to make such sale, conveyance, or
disposition of property; or (3) is about to remove ~operty, or mate-
rial part thereof. (1911.58, 2715.50). Before such action is brought, or
such attachment granted. plaintiff, his agent or attorney, must make
oath in writing showina nature and amount of plaintiff's claim, that
it is just, when due. and existence of one of aforementioned grounds.
(1911.59. 2715.51).
If attachment is refused action is dismissed without prejudice to
future action. (1911.60, 2715.52). Bond is required as in eases of
attachment after debt is due. (1911.62, 2715.54). Attachment proceed-
ings are conducted without delay, but no judgment is entered on claim
before debt becomes due. (1911.63, 2715.55).
Exemptions.-_-See topic Exemptions.
Levy.-Sheriff must go to place where defendant's property is and
in presence of two freeholders of county declare that by virtue of order
he attaches property at suit. True inventory and appraisement must
he signed by officer and freeholders ai*I returned with order. WThen real
property is attached, officer must leave with occupant thereof, or if
there is no occupant, in conspicuous place thereon. copy of order. When
personal property is attached, officer must take it into custody and
hold it subject to order of court. (2715.09).
In county court cases levy is made by constable in substantially same
manner (1911.25), except that he cannot levy on real property
(1911.56).
Indemnit~j.-No statute authorizing officer to demand indemnity be-
fore levying.
PAGENO="0169"
161
P~ioiitie.s.-Attachments agaii~st same defendant must be executed
in order received by officer (1911.25. 2715.08) and attachment liens
have priorlty in order of levies (1911.29, 2715.19).
D ~c7~ :n'ric.-Xttachment must be discharged if judgment in action
in attachment is for defendant (1911.47, 2715.36) and may be dis-
charL,reci on motion (1011.27. 2715.44) on ground that affidavit is in-
sufficient. 70 Q.S. 328. 71 N.E. ~12). that facts stated are not true
(2~) O.S. ~3S'). that attachment was obtained b illegal means or fraud
S LC. 674 or. in common pleas court. that plaintiff has failed to give
additional security as ordered by court (2713.43).
~ttachment must be dischar~ecl on giving of bond in double amount
of plaintifi's claim that defendant will per~rrn judgment of court. In
lieu of bond defendant max deposit currency or negotiable government
bonds in double amount of plaintiff's claim. (1911.35, 2715.26). Except
in claim for causing death or personal injury by negligent or wrongful.
act court sets bond (2713.27). Officer making levy must return property
tO person in whose possession it was fouwl. on giving such bond in
double appraised value of property. (1911.26. 2715.10).
\~f~'~ order issues. if defendant dies or defendant. corporation loses
charter. proceedings continue. (2713.42).
D~pot~o;~. of Piopeity.-In cases in common pleas court receiver
may be appointed to collect evidences of debt and may bring suit.
(2713.20-.21). On notice of appointment defendant's debtors become
liable to nicintiff and must accountto receiver. (2715.22). If no receiver
is appojnred attaching officer has lowers and duties of receiver.
(271.~.24l.
.5 ~`7e.-Attached property may be sold while suit is pending when,
because of perishable nature (1911.32. 2715.25) or. in common pleas
court. eo~t of keeping it (2715.25). sale would benefit parties. If judg-
ment is entered for plaintiff property is sold as if taken on execution.
(1911.49. 2713.31).
Claims of third persons are tried as in case of property taken on
execution and claimed by third person. (1911.51, 2715.40).
Oklahoma Law Digest
Attachment
Actions in Which Aiiowed.-Ari attachment may issue in any action
for the recovery of money. (12-1151).
Cci' its Which J[a?J Issue Attac/iment.-District court has
jurisdiction.
lT7ien Attachment May Issue.-An attachment may be issued at or
after commencement of the action. (12-1151).
In lVhose Favor Attachment May Issue.-Any plaintiff, including a
nonresident or foreign corporation, may obtain an attachment.
Claims on Which Attachment May Issue.-Attachment may issue
where the claim is not yet due, although in such case the grounds differ
somewhat front those in case of matured claim. (See infra, subhead
Grounds).
Pioperty Liable.-Nonexempt real estate and personal property in-
cluding shares or rights of defendant in any domestic or foreign cor-
porat~on licensed in State, are subject to attachment. (12-891-6).
Mortgaged chattels may be attached provided plaintiff pays or tenders
amount of mortgaged debt or deposits antount with county treasurer.
PAGENO="0170"
162
Plaintiff is subrogated to rights of mortgagee in event attachment is
discharged.
Grounds are that defendant, or one of several defendants: (1) Is a
foreign corporation or a nonresident of the State; (2) has absconded
with intent to defraud creditors; (3) has left county of his residence
to avoid service of summons; (4) so conceals himself that service can-
not be had upon him; (5) is about to remove property out of jurisdic-
tion of the court with intent to defraud creditors; (6) is about to
convert property into money for purpose of placing it beyond reach
of creditors; (7) has property or rights in action which he conceals;
(8) has assigned, removed, or disposed of, or is about to dispose of
property with intent to hinder, delay, or defraud creditors; (9) fraud-
ulently contracted debt, liability, or obligation, for which suit has been
or is about to be brought; or (10) where action is for injuries arising
from commission of a felony or misdemeanor, or for seduction of a
female; or (11) when debto~r has failed to p~y price or value of an
article or thing delivered which he was bound to pay for on delivery.
Attachment may not issue on first ground stated above for any claim
other than demand arising on contract, judgment or decree, unless
cause of action arose wholly within the State. (12-1151).
Where the claim is not yet due, plaintiff may have an attachment
if the debtor has sold, conveyed or otherwise disposed of his property,
with the fraudulent intent to cheat or defraud his creditors, or delay
them in the collection of their debts, or is about to make such disposi-
tion of his property with such intent, or is about to remove his property
or a material part thereof with such intent. (12-4243).
Affidavit for Attacltment.-The plaintiff or his agent or attorney
must file an affidavit showing the nature and amount of plaintiff's
claim, that it is just, and the existence of one or more of the grounds
of attachment hereinbefore stated. (12-1152).
Where the claim is not yet due the affidavit must show also when it
will become due and must set out one of the grounds for attachment
on such a claim. In such case the attachment may be conducted without
delay but no judgment may be issued until the claim is due. (12-1244).
Bond is not required when all defendants are nonresidents, in cases
against a foreign corporation or where State of Oklahoma is party
plaintiff. Otherwise, an undertaking in not less than double amount of
plaintiff's claim, with one or more sureties to be approved by the clerk,
is required, which must be conditioned that plaintiff will pay to de-
fendant all damages he lnay sustain by reason of attachment including
a reasonable attorney's fee. (12-1153-3).
Order of attachment is issued by the clerk of the court in which the
action is brought or is pending.
Several orders may, at option of plaintiff, be issued at same time or
in succession and to different counties. (12-1155). A separate petition
should be filed in main action as in other cases.
Levy.-Order of attachment is executed by sheriff, who must make
inventory and appraisement of all property attached. (12-1158). When
real property is attached a copy of the order must be left with occu-
pant. Personal property is taken into his custody where sheriff can
get possession. (12-1159). .
Indem.nity.-There is no statutory provision authorizing a levying
officer to require indemnity.
PAGENO="0171"
163
Lie~i.-Valid attachment proceedings give rise to a lien subsisting
until discharged or satisfied. (14 Oki. 115, 77 Pac. 36).
Pi~oiities.-Attachrnents havd priority in order in which they are
dehvered to the sheriff. (12-1157).
Where several attachments are executed on the same property, court
may determine the ainoi~nts and priorities thereof.
1cu.~e o~ F io~eit y.-S he ii if imist redeliver attached property to
person m whose possession it was found upon execution by such person
of uiidertak~ng to plainttft. with sufflc~ent sureties. in double the ap-
pia~sed value of the property. that the propert or its appraised value
will be forthcoming to answer the judement. of tile court. (12-1160).
1T;~±i~;6e o7~ ~~U~'ci1n~t.-l3ond for release of proI~rty (see
supra does not discharge attach)nent.. (2.99 Fed. S16). Attachment is
c1~sehargecl and restitution of property is made if defendant. before
judgment. executes an undertaking to plaintiff, with sufficient sure-
ties. in doulcie the amount of plaintiffs claim, that he will perform the
judgment of the court. (12-1230)
T~i'~ition 01 JIod?ficafio2~ of A.ttaci~ment.-Defendant mar. at any
time before iudgment. upon reasonable notice to plaintiff, move to clis-
charge all or any part of the ptopei~ty attached. (12-1241).
~i,'c.-Court may direct sale of property during penciency of suit,
where. because of penshal)he nature or cost of keeping it, a sale would
benefit. the parties. (12-1229).
J1~rd ~ ~ paity claiming attached property may
intervene in action. (12-1241).
D.o~itoo. oi~ Thopeit?/ oi~ Fi'oceeds TJ~ereof.-If judgment is id-
diered for defendant. attached property, or its proceeds, are returned
to him. (12-1234). If judgment is rendered for plaintiL it. is satisfied
by applying proceeds of sale of perishable property. and so much of
remaining attached piopeity as may be necessary is sold by order of
court under same re~ulations and', restrictions as if levied on by execu-
tiOn. (12-1235).
Oregon Law Digest
Attachment
Actions ~n Which Ailowed.-A writ of attachment may be had in an
action upon contract, express or implied, for the direct payment of
money, not secured by mortgage,' lien or pledge, upon real estate or
personal property, or if sO secured, when such security has been ren-
dered nugatory by act of the defendant, or in action upon contract,
express `or implied, against a defendant not residing in this State, or
in an action against a defendant not residing in this State to recover
a sum of money as damages. arising from a breach of any contract,
whether made in this State or elsewhere, express or implied, other than
a contract of marriage, or in an action against nonresident for dam-
ages arising from injury to real or personal property in this State
(29.110). except that no writ may be had to effect attachment of a
consumer good or any property for claim based on a consumer trans-
action unless quasi in rem jurisdiction is sought and court finds that
defendant neither residles nor maintains a place of business within
State or that in personam jurisdiction cannot be effected (29.030;
29.040).
Coeíts Which IlIa?/ Issue TVri~.-Court in which action pending
issues writ. (29.120).
PAGENO="0172"
164
Aga~nst TVhoim Writ May Issue.-No attachment may issue against
:a State bank before final judgment. (711.610).
Claims on Which Writ May Issue.-An attachment may be had on a
claim which is not payable within the State, but cannot be had upon
a claim which is not due. (153 Or. 248, 56 P.2d 336).
Time Fo2~ Issuance of Writ.-Attachment may be had at time of
issuance of summons or after such time. (29.110).
Gioui~cis.-See supra, subhead Actions in Which Allowed, and sub-
head Proceedings to Obtain, infra.
Pioceecli'ngs to Obtain.-Upon plaintiff's affidavit meeting detailed
requirements. court shall issue order for defendant and persons in
possession of property to appear, 3 to 7 days after service, to
show cause why provisional process to take possession or restrain dis-
position or use of property shall not issue. Court shall issue provisional
process if after hearing it finds probable cause for sustaining plain-
tilT's claim. Order may issue without hearing if court finds defendant
voluntarily, intelligently and knowingly made written waiver meeting
statutory requirements, and no reason to believe waiver invalid. Upon
certain findings where plaintiff meets requirements for injunction,
court may, in its discretion and without hearing, issue temporary
order restraining injury or removal of property, and requiring defend-
ant to show cause why orde.r should not continue during pendency of
proceedings. If court finds t.hat before hearing defendant has or is
about to harm, remove or similarly threaten property, or defendant
would not comply with a temporary restraining order, it may issue
provisional process. (29.025-.075). Caveat.-Oregon attachment stat-
ute (29.110-.120) was held unconstitutional and its use enjoined in
Multnomah County (Portland), insofar as it provided for prejudg-
ment attachment without notice and opportunity for prior hearing,
as required by clue process of law. (Conawa.y lr. Green, Mnltnomah
Cir. Ct. No. 375655. Dec. 7. 1972; see 407 U.S. 67). It is unclear how
29.025-.075, which establishes a hearing procedure prior to issuance of
attachment. replevin and garnishment, affects other procedures relat-
ing to issuance of these types of provisional process.
Attachment Bond.-Plaintiff must file with clerk undertaking with
one or more sureties in a sum not less than $100 and equal to amount
for which he demands judgment. (29.130). Sureties on an attachment
bond must be householders or freeholders in State (29.130; 29.610) or a
qualified surety company (743.732).
Property Subject to A ttachment.-The rights or shares which de-
fen dent may have in the stock of any association or corporation,
together with the interest or profits thereon, and all other property,
other than consumer goods (29.030), in this State of defendant not
exempt from execution are subject to attachment. (29.140). See also
topic Garnishment, subhead Wages.
Levy may be on real or personal property in circuit or county court;
but only on personalty in district or justice court. (52.210, .250; 46.090).
Sheriff levies on personal property not in possession of a third person
by taking it into his possession, on real property by filing a certificate
with county clerk. If personal property is in possession of third person,
sheriff leaves certified copy of writ and notice specifying property at-
tached with said lerson; but if debt, with debtor; if stock, or if wage
or salary claim against corporate debtor. with registered agent or
PAGENO="0173"
165
designated corporate official; if bank, with bank official. (29.170). Levy
on security (78.3170) or debt evidenced by negotiable instrument (242
Or. 162. 408 P.2d 925) only by possession.
Lien continues until di'scl~arg~cl by order of court or judgment for
defendant or until officer holclin~ personal property gives UI) posses-
smn. (2~.400).
Pi~oi~c~.-Attaching creclitoi~s do not share pro rata, but are I)aid
in the order of their levy. (40 Or. 412. 67 P. 299).
Re7c'~e o~' Piopeity.-Propert~ attached may be returned to the de-
fendant upon his giving a counter undertaking to reclehver or pay the
demand. ~.220).
8alc.-Leving officer may sell Perishable property or livestock and
retain proceeds in its place. (29.200).
Third party claims may be tried by sheriff's jury or by court in a
summary manner. (20.210).
See also topics Executions; Garnishment..
Pennsylvania Law Digest
Attachment
The various forms of attachment herein discussed are available to
pioper *plaint ifs including nonre~idents and foreign corporations.
ForeiLrn attachment is a means of commencing an action by attach-
ing property located in Pennsylvania belonging to a nonresident
defendant. Except as otherwise provided by the Rules of Civil Pro-
cedure relating to foreign attachment, procedure is in accordance with
the rules relat.in~ to the appropriate action at law or in equity.
(H. C.P. 1251).
Act2~oi~.s in TFhich A7?o ed.-Writ of foreign attachment may be
:ssued to attach property of defendant not exempt from execution,
upon any cause of action at law or in equity (other than an action ex
delicto arising from acts committed outside Commonwealth which is
not required to be joined with an action in assumpsit under B. C. P.
1020[d] [1]). in which relief sought includes a judgment or decree for
payment of money when: (1) defendant is an individual nonresident
of Pennsylvania, even though he is present in State; (2) defendant is a
partnership or unincorporated a~ssociation without a regular place
of business in Pennsylvania and action is against defendant in its firm
or association name, even though one or more members are present in or
residents of State; (3) defendant is a foreign corporation or similar
entity, which is not registered in Pennsylvania. (B. C. P. 1252).
A foreign attachment may be issued in a pending action if at time of
issue a foreign attachment coul.d have been used to commence the
action.
Courts which may issue writ are the courts of common pleas of the
various counties. Foreign attachment is not available in courts of
justices of the peace. (R. C. P. J. P. 325113]).
Foreign attachment against personal property of the defendant may
he issued: (1) against personal property only in a county in which the
pi'opet~v is located or a garnishee may be served; (2) against real prop-
erty of the defendant only in a county where all or any part of the prop-
ertv is located. (B. C. P. 1254). .
Any person may be made a garnishee and is deemed to have posses-
sion of property of defendant if he~ owes a debt to defendant, has prop-
PAGENO="0174"
166
erty of defendant in his custody, possession or control, holds as a
flduc~ary property in which defendant has an interest or legal title to
property of defendant whether or not in fraud of creditors. (R. C. P.
1253). Investment securities which are outstanding can be attached
only by manual seizure by sheriff of the securities themselves, but a
security surrendered to the issuer may be attached at the source. (12A-8
[317]). Unless document was originally issued upon delivery of goods
by a person with no power to dispose of them, if a negotiable document
of title such as a bill of lading or warehouse receipt is outstanding with
respect to goods. the goods cannot be attached unless document first be
surrendered or its issuanec enjoined. (12A-7 [602]).
In TV/iose Favor TVrit I1[ay Iss'ue.-There is no provision discrimi-
nating against nonresident or foreign corporation plaintiffs. For
requirements pertaining to Plaintiffs generally, see Actions, subhead
Parties.
Against Whon-t Writ May Issue.-See supra, Actions in Which Al-
lowecl and Courts Which May Issue Writ.
O7cthms~ on TVhiclt Writ May Issve.-Writ may issue only where
plaintiff has a cause of action a~s stated above under this subhead. Since
there must be a cause of action, the writ normally may not be issued
upon an unmatured claim.
Proceedings to 0 b tain.-Attachment is commenced by filing with
prothonotary a praecipe for a writ directing sheriff to attach such spe-
cific items of defendant's property as are set forth in the praecipe and
all other property of defendant. The praecipe must state amount of
plaintiff's claim. (R.C.P. 1255). Writ is served in same manner as writ
in assunipsit (see Process) upon named garnishee and upon any person
not named as garnishee who is found in possession of property of
defendant. (RC.P. 1257). Plaintiff must file complaint when he files
the praecipe or within 5 days thereafter. If complaint is not so ified,
defendant or any garnishee may order prothonotary to enter judgment
of non pros. Complaint when filed is served on garnishee in same man-
ner as complaint in assumpsit. Defendant may be served with writ or
complaint, but failure to do so does not affect validity of the attach-
ment. If defendant is served, appears or files a bond or security, the
action proceeds as if commenced by personal service of a summons
or complaint. See Actions; also Process.
Defendant may appear specially and, without subjecting himself to
the jurisdiction of the court, raise the defenses of immunity or èxemp-
tion of the property from attachment, or that no property of defendant
was in garnishee's possession when attachment was served. These de-
fenses are raised by preliminary objection under fi. C. P. 1017(b) (1)
(see Actions) or by a petition to open judgment filed any time before
garnishee files his answer to interrogatories. (B. C. P. 1271). After
expiration of 45 days after execution of writ, plaintiff may take default
judgment against any defendant who has not been served, has not
appeared and has not filed bond or security, provided that a complaint
has been filed at least 20 days prior to the judgment and no preliminary
objections are pending. . . .
Attachment Boimd.-No bond or security is required of plaintiff in
connection with issuance of writ.
Levm~i and Lien.-Service of writ upon garnishee attaches all per-
sonal property of defendant in garnishee's possession at time of service
PAGENO="0175"
167
and. if garnishee had any such ~~roperty in his possession at time of
service, writ also attaches afl personal property which thereafter
comes into garnishee's possession until judgment is entered against
garnishee. If no one is in possession, sheriff attaches property by
manual seizure. (RC.P. 1258). Service of writ upon garmshee en-
kins him from opening or permittmg opening of a safe deposit box
except as dtreeten by court.
service of writ. i~pon the person in actual possession attaches real
property (it. C. P. 1260) antI binds the same as against purchasers and
mott~c~ees (12-2942). If no one is in pcsscssion~ sheriff posts copy of
the writ imdn the land and sends defendant a copy by registered mail
to ia~t known address: if no address is known. notice is published pur-
suant. tO ~nnerai rule or special o~der of court. A mortgage, judgnient
lien or ::tccrnoreal hereditament owned by defendant may be attached
Lv serwug as aarnishee the owner of the real property subject thereto.
~Service of writ upon tenant attaches rent due and to become clue until
ud~menr is entered a~ainst him.
Upon giving bond.~jiaintiff may require sheriff to take manual pos-
session of any tangible personal pioperty of defendant.
or security may be required of plaintiff (1) by
sheriff for the actual or estimated cost of retaining possession of tan-
personal property 1nanlTall~ seized by sheriff or (2) by court to
1 ~ cc ag~inst loss c~usecI b~ foicible opemng of s'tfe
2 -~Vi t of ioi~i~n ~tt'~lim~ i~ when issued `tndmnde edby
the nro~iicnctary. attaches ieal property at time writ is served upon
l)erSOll in possession of the property, and takes priority as of time writ
issued. (IL C. P. 1255. 1260: 12-2949). As to personalty, priority of at-
tachment. aives priority of lien.
Re1ec~hi~ Piopeity.'-Attachment is not dissolved by service of writ
on defendant, or by his appearance, or by death or dissolution of a de-
fendant. or garnishee. Attachment is dissolved when any person or
party (1) files a bond, with security approved by the prothonotary, in
double amount of plaintiff's claim, or in such lesser sum as court may
direct, naming Commonwealth of Pennsylvania as obligee, conditioned
to pay plaintiff amount to which he~ is entitled upon final judgment,
with interest and costs or (2) deposits with prothonotary or sheriff
security in legal tender in an amount equal to plaintiff's claim, with
pro Dn1e interest and costs. (R. C~ P. 1272.a-c). Specific property may
similarly be released. If plaintiff fails to proceed in time against gar-
nishee. latter may cause attachment to be dissolved as to him.
Sa?e.-Perishable property attached may be preserved, sold or dis-
posed of as court may order. (R. C~ P. 1258).
Procedure as to Garnishee.-Within 20 days after service of writ
upon him, garnishee must file a report under oath setting forth in de-
tail all property of defendant in his possession, or stating that prop-
erty is immune or exempt. Garnishee must promptly forward to
defendant a copy of writ, complaint and garnishee's report, by deliver-
ing copy to defendant by a competent adult within or without Penn-
sylvania in the manner prescribed for serving a writ of summons in
action of assumpsit or by sending copy by registered mail to defend-
ant's last known address. If garnishee forwards copies as required,
he is under no duty to resist tl~e attachment or defend the action. The
PAGENO="0176"
168
garnishee may, but need not, file preliminary objections raising the
defense of irnmumty or exemption of the property from attachment
and the defense that no Property of defendant was in garnishee's pos-
session at time writ was served.
After entry of judgment against defendant, plaintiff may file 1nter-
rogatories directed to garnishee, in statutory form (RC.P. 1356), en-
dorsed with notice to answer in 20 days. respecting the property in
garnishee's possession. Garnishee answers in manner provided for an-
swering complaints in assurnpsit. See Actions. tnder "new matter,"
answer may include the defense of the immunity or exemption of prop-
erty, the defense that no property of defendant was in garnishee's
possession at time writ was served, or any defense or counterclaim
which garnishee could assert against defendant if sued by him, but
may not assert any defenses on behalf of defendant against the plain-
tiff or otherwise attack the validity of the attachment.
If garnishee fails to file report or answer the interrogatories, plain-
tiff may take default judgment against the garnishee. Judgment
against the garnishee may also be entered upon the pleadings or after
trial. Execution may he had upon such judgment as against property
of defendant in possession of garnishee, or debt. owed by defendant to
garnishee. See Executions.
Fraudulent debtor's attachment may be issued as an original writ
or may be issued in a pending action if at time of issue a fraudulent
debtor's attachment could have been used to commence the action. Ex-
cept as otherwise provided by the Rules of Civil Procedure relating to
fraudulent debtor's attachment, procedure is in accordance with the
Rules relating to foreign attachment, supra. (R. C. P. 1285).
Actions in Which Aliowed.-A fraudulent debtor's attachment may
be issued to attach personal property of the defendant not exempt
from execution, upon any cause of action at law or in equity in which
relief sought includes a judgment or decree for payment of money,
when defendant with intent to defraud plaintiff has removed or is
about to remove property from jurisdiction of the court, has concealed
or is about to conceal property, has transferred or is about to transfer
property, or has concealed himself within, absconded or absented him-
self from Pennsylvania. (R. C. P. 1286).
Courts which may issue writ are courts of common pleas. Foreign
attachment is not available in courts of justices of the peace. (11. C~
P. J. P. 325[3]).
As to service upon garnishees, see supra, subhead Foreign Attach-
ment.
In Whose Favor TVrit May Issue.-There is no provision discrimi-
nating against nonresident or foreign corporation plaintiffs.
Against Whom lVnit Ma?/ Issue.-See supra. Actions in Which Al-
lowed and Courts Which May Issue WTrit.
Ulaims on Which TVrit May Issue.-Writ may issue only where
plaintiff has a cause of action as stated above under Actions in Which
Allowed. Since there must be a cause of action, the writ normally may
not be issued upon an unmatured claim.
Proceedings to Obtain.-Fraudulent debtor's attachment is com-
menced by filing with the prothonotary (1) a praecipe for a writ di-
recting sheriff to attach such specific items of defendant's personal.
property as are set forth in the praecipe, and all other personal prop-
PAGENO="0177"
169
ertv of the defendant.. (2) hondor security and (3) a complaint. The
complaint must set forth the cause of action, the ground for attach-
ment. a aeneral statement of the fraud on which the attachment is
based an~l. if plajntjff elects to fil~ a bond in double the estimated value
of the pt'opeity. a statement of its value.
The writ and complaint are served by the sheriff in the same manner
as in an action in assumpsit. but inability to serve the defendant does
not affect validity of the attachment. If defendant is served appears,
cr files a l)oncl or securif~, action continues as if commenced by per-
sonal service of a summons or complaint.
Acehii~c;~t Bond.-Plaint.iff must. ~ive hand in either double the
amoimt claimed or double the estimated value of the property to be
attaci~ecl. with securjtv approved by the prothomiotary, naming the
Commonwealth of Pennsylvania as obligee. conditioned that plaintiff
shall pay defendant. anti any garnishee all legal costs, fees anti damages
sustained by reason of the attachment if it is adjudged that either
the cause of action or the ground for attachment set forth in the corn-
plaint is nor estab}jshed. In lieu of bond Plaintiff may deposit with
the prothonotarv security in the~ form of legal tender in an amount
equci to one-half the amount which would have been required if bond
were filed.
Levy under writ of fraudulent debtor's attachment can he made
only upon personal Property. (H. C. P. 1286).
Iiem;'utu.-Bond or security ma be required of plaintiff (1) by
sheriff for actual or estimated cost of retaining possession of tangible
personal property manually seized by sheriff and (2) by court to
indemnify garnishee against loss caused by forcible Opening of safe
deposit. box. (H. C. P. 128.5. 1259-1262).
Pi~oi~ti~e.-Successjye fraudulent debtor's attachments have pri-
oritv of lien in the order in which they come into the hands of the
sheriff. (12-2~l.5).
Relea.t oi~ Piopeity.-Within such time as not to delay trial the
defendant may raise defense of absence of grounds for the attachment
by petition to dissolve attachment. Such a petition does not of itself
subject. defendant to the jurisdiction of the court. An attachment is
dissolved when any person or party (1) files a bond with security
approved by the prothonotarv in same amount as the attachment bond
theretof ore filed with ilaintiff's complaint, naming the Commonwealth
of Pennsylvania as obligee, conditioned to pay plaintiff if final judg-
ment is entered in his favor amount to which platntiff is. entitled or
value of property attached. whichever is less or (2) deposits with the
prothonotar or with the sheriff for the prothonotary security in the
form of legal tender in an amount, equal to one-half of amount o± the
bond theretofore filed with plaintiff's complaint.
~`~`e.-Perishable pioperty may be preserved, 5Oldi or clisposeti of
as the court may order. (H. C. P. 1285, 1258).
Poceduie a.~ to garnishees is the same as in foreign attachments,
supra.
Rhode Island Law Digest
Attachment
Aeti'on~ in TTThriclr Allowed.-Generally only allowed in action based
upon a contract under which damages are susceptible of estimation and
~3i-2O7----75----i2
PAGENO="0178"
170
determination. (24 R.I. 23. 51 Ati. 1044). Allowed in tort actions
where defendant a nonresident. (10.5.6). See subhead Courts Which
May Issue Writ.
Courts Which May Issue TVrit.-Superior court and district court.
Superior court, in civil action of an equitable character, may allow
attachment by special order. (10.5.5).
In Wiwse Favor lVrit May Issue.-Attachment may issue in favor of
a nonresident or a foreign corporation.
Exeinptions.-See topic Exemptions.
Claims on lVit'ich lVrit illay Issue.-Attachment may issue on a
debt that is due and on iinmatured debt absolutely payable at a cer-
tain date. (19 RI. 220).
Froceeclivgs to Obtain,-At time of commencement of action, or at
any time thereafter prior to judgment plaintiff must file a motion for
authority to attach defendant's assets, including real and personal
property. Notice of motion must be served on defendant at least 5
clays prior to hearing date. Motion will be granted only upon plaintiff's
showing that he will probably prevail and that there is a need for
furnishing plaintiff security in amount sought for satisfaction of judg-
ment, plus interest and costs. In actions where plaintiff's claim against
defendant has been reduced to judgment, defendant's assets may be
attached without further hearing or notice. (10.5.2; RC.P. and
D.C.R. 4[j]).
Atttchmeet Bond.--May be required. (RC.P. and D.C.R. 4[j]).
Levy.-Real estate is attachable by the sheriff by filing a copy of the
writ, containing a description of the real estate to be attached, with
the recorder of deeds or town clerk in the city or town where the real
estate is located. (10.5.9). Personal property is attachable to value com-
manded in writ and is kept by officer making attachment in his cus-
tody as security until lie sells property or it is withdrawn from his
custody. (10.5.10, 12).
Inclem.'n?ty.-Levying officer has no right to require.
Priorit'ies.-Rights of attaching creditors are determined by time
when sheriff actually serves trustee or takes possession of personal
property or in case of realty, when copy of writ is filed in records of
land evidence. (9.26.30).
Release of Property.-Personal property attached may be released
within 48 hours after such attachment, exclusive of Sundays and legal
holidays, by the defendant or some one in his behalf giving bond to
the sheriff with satisfactory surety or sureties to pay judgment.
(10.5.13). If no bond is given within that time, the attached goods
are appraised and thereafter the attachment may be released at any
time before final judgment by the defendant or some one in his behalf
giving like bond to return the goods or pay double their appraised
value or pay judgment. (10.5.16).
Real estate may be released by defendant giving surety company
bond in amount of damages in writ or depositing such amount in cash
with registry of court. (10.5.17).
Dissolution of Attachments.-Attachment dissolved if complaint in
action is not filed within 30 days after such attachment. (10.5.45). Real
estate attachment lien dissolved whenever the cause remains without
action for a period of 6 years as shown by court docket. (10.5.44).
See topic Executions.
PAGENO="0179"
171
Sccie.-Aniinals, perishable goods and goods which cannot be kept
without great and disproportionate expense may be sold after reason-
able notice by order of court and proceeds paid into registry of court
to be held as security to satisfy judgment or decree. (10.3.35-36).
Th ;~;d Pcat~i G7aina~.-Interest~ed persons may intervene and contest
validity of attachment. (10.17.19).
Ioo'ificut?om-Defenclant may move to reduce demand for judg-
ment and amount. of property attached or to release propeity from
attachment. (10.5.18).
IT r ~.~Wage attachments permitted. See subhead Proceedings to
()h~ am. supra. See also Consumer Credit Protection Act. Title III (15
TJ~:C\ ~ 1671 et seo.).
South Carolina Law Digest
Attachm2nt
Ac~on~ fa. TT7o'eh AUO?ced.-Attachment will lie in any action for
the recovery of money, whether on contract or in tort.
Co u;t~ TT7~ ich ~lfc'?/ Js.sye TVaniant.-W arrant of attachment must
I e obt 1 ed nom tb~ iucE~e cleik of co~n~ 01 ~yitustrtte in wInch 01
before whom the action is brought or froni the circuit. judge. (10-904).
In TJ7~o8e F':coi lFa `mt JIay i.cs?'e.-Att.achlnent may be obtained
Lv any plaintiff, including a nonresident or foreign corporation.
Aric~':.~t TFi~o?n. 11 (umnt Jfciy I.s.sve.-Attachment may issue against
mv defendant as to whom the necessary grounds (see infra) may be
mho~vn, whether or not a resident of the State.
on lI7hch 1F~nrant JIay Is.3?'e.-It is not necessary that the
claim sued on should be due when the warrant is issued. (10-903).
TI7~en Wuniunt Jiuy ls.sue.-Prpperty of defendant may be attached
at time of issuing summons or at any time thereafter during pendency
of the action.
Grounds for attachment are that the defendant is a foreign corpora-
tion. or not a resident of the State, or that defendant has departed from
the State with intent to defraud his or its creditors, or to avoid service
of a summons. or keeps himself concealed within the State with like in-
tent. or that defendant has remoyed or is about to remove property
finm this State with intent to defraud his creditors, or has assigned,
(Lsposed of or secreted. or is about to assign. dispose of or secrete prop-
crtv with like intent. (10-9011.
Where debt is not due attachment will lie when it appears by affi-
davit that the debtor has departed from the State with intent to de-
fraud creditors or to avoid service of summons, or keeps himself con-
cealed in the State with like intent, or has removed or is about to
remove property from the State with intent to defraud creditors, or
has assigned, disposed of, or secreted, or is about to assign, dispose of
or secrete property with like intent. Judgment cannot be had until
maturity of the debt and plaintiff must pay costs if the debt is paid
on or before maturity. (10-903).
P~rnchase Money C'laims.-Heal or personal property may be at-
tached in an action for unpaid purchase money thereof, even though
none of the general grounds for attachment exist. (10-951).
Proceedings to Obtain.-In order to obtain an attachment it is
necessary to file an affidavit showing that a cause of action exists
against the defendant, specifying..~the amoun.t and grounds of plain-
PAGENO="0180"
172
tiff's claim, and showing the existence of one or more of the grounds
for attachment. (See supra).
Attachment Bond.-Before a warrant of attachment issues, plaintiff
must give a bond for not less than $250, except in a magistrates court,
not less than $25. (10-908). The bond must be signed by plaintiff or
duly authorized agent before the warrant is issued. (31 S.C. 360, 9
S.E. 1028; 55 S.C. 547,33 S.E. 581).
Warrant of attachment is addressed to any sheriff or constable of
any county where property of defendant may be and requires him to
attach and keep property of defendant in his county sufficient to sat-
isfy plaintiff's demand and costs. Several warrants may be issued at
the same time to sheriffs or constables of different counties. (10-911).
Service of Summons in Action.-Personal service of summons must
be made or publication thereof commenced within 30 days after
attachment. (10-901).
Levy and Lien.-Attaching officer must attach real and personal
property, unless exempt, including money, and takes into custody
books of account, vouchers and papers relating to property. Attested
copy of attachment of real estate must be served on owner and lodged
in office of clerk of court of county in which property situated. If
service is impossible copy and officer's return must be lodged in office
of clerk of court. Record of attachments is kept by clerk. Lien attaches
when warrant is lodged and attachments lodged the same day rank
equally. Attachment lien is subject to all prior liens. (10-923 to 924).
Indemnity.-There is no statutory authority for the officer demand-
ing an indemnity bond before levy.
Appraisal.-All property attached must be appraised. (10-927).
Release of Property.-Defendant or any person establishing a right
to property may have the property released from attachment by giv-
ing bond in double the amount claimed by plaintiff. (10-930 to 932.1).
Third Party Glaims.-If property be claimed by a party other
than defendant, or by defendant or the person in possession, in the
right of some third person, an issue is made up by the judge and
trial had. If the part~~ in possession or third persomi resides in a clif-
ferent county from the plaintiff the issue is tried in the county where
the party in possession resides. (10-929).
TTacating._An attachment may be vacated for irregularities or for
failure to strictly follow the statute. (31 S.C. 360, 375, 9 S.E. 1028;
38 S.C. 228, 16 S.E. 774; 43 S.C. 44& 21 S.E. 331; see also 58 S.C.
398, 36 S.E. 744; 159 S.C. 378. 157 S.E. 72).
Uniform Commercial Code governs attachment of goods covered
by negotiable documents, bulk transfers of goods and investment
securities.
South Dakota Law Digest
Attachment
Oaveat.-Lake Arrowhead Estates, Inc. v. Cummings, TJSDC Me.,
June 25, 1973, 42 LW 2035, where court held prejudgment attachment
without prior notice and hearing violated Due Process Clause of
Fourteenth Amendment.
Actiovs in TV hich Allowed.-If requisite grounds exist, resort may
be had to attachment in any action. (21-47-2).
Courts Which May Issue Writ.-Writ may be~ issued in any court,
having jurisdiction of action. (21-17-2).
PAGENO="0181"
173
I~ fl7~ ose Favor Writ May Issue .-Any plaintiff, including foreign
corporation authorized to do busmess in the State, may obtain an
attachment. (21-17-2).
Agcii~st Whom TTTiit May Issu~.-T here are no statutory exemptions
from the writ, so far as concern private inchviduals and private
corporations.
Claims Oh TTThicJt Writ May Issue.-The writ may issue on any
on which action may l)e n~aintained, and a creditor may bring
on on a claim before i~ is due, and have attachment if defendant
has removed, or is about to remove, property from South Dakota with
intent to defraud or delay creditors; or has secreted, incumbered,
transferred. or otherwise disposed of property, or is about so to do,
with like intent: or if debt was incurred for property obtained under
false pretenses. no jud~ment. hOwever, to be rendered until claim is
due and paval)le. (21-17-1).
G~o~,i~ds.-Xttachment may is~ue in any of the following cases: (1)
When defendant is a corporation and has no officer, agent or attorney
upon wlloln suiiìinoiis can be ser~ecl within this State; (2) when de-
fendant is not a resident of this State: (3) when defendant has de-
paired from this State with intei~t to defraud or delay his creditors or
In avoid service of summons or keeps himself concealed therein with
like intent: (4) when defendant, either person or corporation, has
removed or is about to remove any of his or its property from this
State. with intent to defraud or delay his or its creditors; (5) when
defendant. either erson or corjoi.'ation. has secreted, incumberecl,
transferred or otherwise disposed of. or is about to secrete, incumber,
transfer or otherwise dispose of. any of his or its property with like
intent: (~) when defendant has fraudulently contracted the. debt or
~neurrec~ the obligation for which the suit is, or has been brought; (7)
in an action to recover purchase money, for personal property sold to
defendant. an attachment may he issued and levied upon such prop-
ertv. (21-17-2).
Proceedings to Obtair.-To obtain an attachment. affidavit must be
made by plaintiff or his agent or attorney, setting forth grounds of
cause of action against defendant, and amount of claim, and alleging
existence of one or more of the grounds of attachment as above in-
dicated; and if attachment is to be limited to specific property of de-
fendant, definite description thereof and declaration of its fair market
value. (21-17-3).
Attachment Bond.-Plaintiff must give bond, with sufficient surety
(or casl~ deposit) of at least twice amount claimed, or if amount
claimed exceeds S1.000. then in such amount claimed, but in no case
exceeding S1O,000, to the effect that if defendant recovers judgment,
or if court finally decides plaintiff was not entitled to attachment,
plaintiff will pay all costs awarded defendant and all damages defend-
ant sustains by the attachment, not exceeding the sum specified in the
undertaking; except that if affidavit for attachment describes specific
property to be attached and states fair market value thereof and lim-
its attachment thereto, undertakiiig shall be amount of such declared
value, hut not less than $250. (21-17-4, 5).
Levy.-Warrant of attachment may be levied on any or all prop-
erty. real or personal. of defendant. liable to execution, including prop-
erty held for him in the hands of third persons, and debts due and
PAGENO="0182"
174
owing to him, sheriff taking into possession books of account, and
evidences of indebtedness. (15-18-20 to 27; 21-17-8, 9).
Indemnity.-T here is no statutory authority for sheriff to demand
indemnity before making a levy.
Lien of attachment effective from time of levy. (21-17-12).
Priorities between successive attachments are according to dates of
actual levies.
Release of Property.-Defendant upon appearing may file with
sheriff undertaking executed by corporate surety or two resident free-
holders of the State, approved by sheriff, conditioned to pay on demand
amount of any judgment which plaintiff may recover, with interest
and costs. (21-17-25 to 30). Thereupon, sheriff gives written notice
thereof to plaintiff's attorney, and within 3 days thereafter plain-
tiff may give written notice to sheriff of exception to sufficiency of
sureties, in which case sheriff notifies defendant thereof~ and sureties
may justify in same manner as sureties under statutes relating to civil
arrest. If no such exceptions are taken, or if sureties justify follow-
ing such exceptions, warrant of attachment is dismissed, and any levy
released. (21-17-25 to 30).
Dissolution.-Defendant or any person having a lien subsequent to
attachment lien may move to dissolve attachment. (21-17-22, 23,
24, 31).
SaZe.-If property seized is perishable, it may be sold by sheriff at
public auction, this under order of the court, sheriff paying net pro-
ceeds of sale into court. (21-17-20).
Third party claims must be made to sheriff, who calls six jurors
and gives plaintiff notice of trial of claim. If verdict is for claimant,
sheriff will relinquish levy unless plaintiff gives indemnity. (15-18-31;
21-17-21).
Tennessee Law Digest
Attachment
Actions i'm Which Ailowed.-Attachments lie in all civil actions,
whether in contract or in tort (23-601-06), without limitation as to
amount in controversy in proper cases.
Cauits Which illay Issue Writ.-Writ lies in court of law or equity
or before justice of the peace. (19-405. 23-606).
In Whose Favor TVrit 1F[ay Issue.-Any person is entitled to issu-
ance of writ, whether resident or nonresident (23-601; 190 Tenn. 1,
227 S.W. 2d 35), without restriction as to foreign corporation (42
Tenn. 153). Where both creditor and debtor are residents of same
foreign state, the creditor must make oath that property of debtor
has been fraudulently removed to this State to evade process in State
of residence. (23-609).
Grou~ds.-The writ lies against property of: (1) Nonresident (will
not lie against foreign corporation domesticated in Tennessee unless
it has no agent on whom process may be served) ; (2) one who is about
to remove or has removed himself or property from the State; (3) one
who has removed, or is removing himself out of the county privately;
(4) one who conceals himself so that ordinary processes of the law
cannot be served upon him; (5) one who absconds or is absconding
or concealing himself or his property; (6) one who has fraudulently
disposed of, or is about to fraudulently dispose of, his property; (7)
PAGENO="0183"
175
decedent resident outside of State liable -for debt leaving property in
State. (2:3-60fl.
oi~ IF/i ich Writ J.[ati, Issuc.-Writ ma be sued out upon
debts or demands not due upon above grounds except the first, nonres-
idence of defendant. (23-602). If any other ground existS it may issue
against a nonresident. An accommodation endorser may sue out writ
as a security for his liability. (23-603). No final judgme~nt will be ren-
dered until the debt matures. (23-604).
P;~occcdi~as to Obtain.-To obtain attachment, the plaintiff his
agent. or attorney, must make. oath in writing stating the nature and
amount of the debt. claim or demand. and th~tt it is a just claim, and
also that one or more of the grounds for attachment exist (23-613)
a substantially accurate description of the property sought to be at-
tached anti its approximate vahie must be set forth in the affidavit or
the bill, which must. he sworn to (23-617).
A iei~ me ï~ t B o;~d.-Bond conditioned to prosecute attachment with
effect. or. in case of failure, to ieav defendant. all costs anti such dam-
ages as he may sustain by r~ason o'f the wrongful suing out of the writ,
must be flled ~ plai~ttifl, his agent or attorney. (23-615). The amount
of the bond must be: (1) Where the amount of the claim is less than the
value of the property to be attached, equal to the asserted claim plus an
addiilonal sum estimated to cover probable costs and damages; (2)
where the amount of the claim is greater than the value of the property
to be attached. be equal to the estimated value of the property phis esti-
mated costs and damages; (3) where claim is for unliquiclateci clam-
ages. be eciual to the value, of the personal property to be attached plus
estimated costs and damages; (`4) where real property is attachecT,
sufficient to cover all costs and damages only. (23-616).
Ler?/.-The writ, is levied by the officer upon any real or personal
property, whether interest therein is legal or equitable, debts and
choses in action, whether due or not due. (23-632). Personalty must be
exhausted before levy on real estate. (23-633).
Indemnity.-No provision is made for the officer to require indem-
nity.
Priorities between different attachments of sa me propert~T are
according to times of levies.
Re7eas'e of Pro7erty.-The attachment may be discharged if the de-
fendant give bond and security approved by the court. in term time, or
its clerk in vacationS to indemnify~the plaintiff. (23-605).
Sa7e.-No property levied upon. except it be perishable property,
will be sold before final judgment or decree. (23-604).
Vacation or Modification.-Attachments issued without prescribed
affidavit and bond may be abated by plea of defendant. (23-632).
Texas Law Digest
Attachment
Actio;is ~n IFli.ich Allowed.-Attachinent may issue only after suit
has been filed. but may be issued either at commencement or at any
time during progress of litigation. (277). Attachment may be issued
on every demand founded on breach of express or implied contract
where damages are capable of definite ascertainment. Generally at-
tachment does not lie in actions founded on tort, but in cases in which
PAGENO="0184"
176
personal service cannot be obtained in State, attachment may lawfully
issue whether amount claimed is in tort or contract. (281).
Courts Which May Issue Writ.-Attachment must issue out of court
where suit is filed. C1e.rk issues writ.
In lVhose Favor Writ May Issue.-No limitation is imposed on issu-
ance of the writ on account. of residence or citizenship of plaintiff.
Against Whom Writ May Issue.-Attachment available against all
persons who are indebted to plaintiff in main action whether they are
artificial or natural persons, residents or corporations.
U7a/m~ on TVhich TTTrit May Issue.-Attachrnent may only issue
upon a certain or liquidated demand, unless the suit out of which it is-
sues is against parties upon whom personal service cannot be obtained
within the State, in which case it may issue upon an unliquidated de-
mand. (281). It may issue, however, upon a debt not yet due. (278). It
is not necessary that the claim be payable in Texas.
Grounds for attachment are that defendant: (1) is a nonresident or
a foreign corporation. or is acting as such; (2) is about to remove per-
manently out of State, and has refused to pay or secure debt due to
plaintiff; (3) secretes himself so that ordinary process cannot be
served; (4) has secreted his property to defraud his creditors; (5) is
about to secrete his property to defraud his creditors; (6) is about to
remove his property from State. without leaving sufficient remaining
for payment of debts; (7) is about to remove his property or part
thereof, from county, to defraud creditors; (8) has disposed of all or
part of his property to defraud creditors; (9) is about to dispose of his
property to defraud creditors; (10) is about to convert all or part
of his property into money. to place it beyond reach of creditors;
(11) obtained property for which debt is due by false pretenses. (275).
Proceedings to Obtain.-Before a writ of attachment may issue, the
plaintiff or his representative must file a bond and an affidavit show-
ing that the defendant is justly indebted to the plaintiff in an amount
which must be stated, except in the case of an unliquidated claim
against a defendant who cannot be served in the State; and also show-
ing that one or more grounds for attachment exist, that the writ is not
sued out to injure or harass defendant, and that unless the writ issues,
plaintiff will probably lose his claim. (276).
Attachment bond must be filed by plaintiff before a writ of attach-
ment will issue, which is payable to defendant, in an amount to be
fixed by judge or justice of the peace issuing attachment, conditioned
to pay all costs and damages for wrongfully suing out writ. (279).
Where defendant resides beyond State and demand is unliquidateci
judge or clerk of court, or justice of peace, fixes amount of bond.
Levy.-The officer serving a writ of attachment may levy on any
property subject to execution, in the same manner as levy is made under
execution.
Indemnity.-Levying officer may require indemnity bond to protect
him. (287).
Lien.-Levy creates a lien on the property levied upon from the
date thereof. Personal property is taken by the officer and possession
retained until final judgment unless defendant, or a third party
replevies, or the property is ordered sold by the court. Should plaintiff
recover judgment attachment, lien is foreclosed like any other lien.
(Rule 598).
PAGENO="0185"
177
Priorities among attaching c~editors are governed by dates of levies.
Release of Pro perty.-A defendant in attachment may recover pos-
session of attached property, by filing a replevy bond, amount of
which, at his option, may be `either twice claim of plaintiff, or twice
value of property attached. (Rule 599).
Sule.-If property attached is perishable, court may order it sold
and ptoceecls held to secure debt, or may make such other oider for its
preservation or use as it may deem for best interests of parties. (Rules
UOO-003).
77i ~id Pail y Glaims.-Any third persoil claimmg property levied
Upon. mai: file an affidavit showing his claim, and a bond, and secure a
trial of the right of property. (2.91). The procedure is as in cases of
executions. See Executions.
Va'Jatiol2. or Jlodification.-Attachment may be vacated by motion
to quash if objection is based on intrinsic defect discernible on face of
paper. If objection is based on extrinsic defect, plea in abatement
should be used.
LTtah Law Digest
Attachment
P. C. P. 64C).
The plaintiff, at any time after filing complaint, may have the
propert of the defendant. not exempt from execution. attached as
security for the satisfaction of any judgment that may be recovered,
unless the defendant. gives security to pay said judgment..
Action-s in TF/~ie/i Allowed.-~-At.tachment may be obtained in an
action upon a judgment or upon a contract. express or iinphed, or to
recover damages for any tort committed by nonresident against person
or nropertv of restclent.
Gio~uids.-Writ will issue against a defendant who: (1) Is not i-esicl-
ing in this State: or (2) is a foreign corporation not qualified to do
business in this State; or (3) stands in defiance of an officer. or conceals
himself so that process cannot be served upon him; or (4) has assigned,
disposed of or concealed. or is about to assign, dispose of or conceal,
ally of his property, with intent~ to defraud his creditors; or (5) has
departed or is about. to depart from the State to the injury of his credi-
tors; or (6) fraudulently contracted the debt, or incurred tile obliga-
tion respecting which the action is brought; or (7) where plaintiff
alleges facts showing probable cause for being, and that lie is justly
apprehensive of loss of his claim unless attachment iSSues.
In. TVhose Favor Writ May Issue.-In a. proper case, attachment
may be had by any plaintiff, including a nonresident or a foreign
corporation which has the right to sue in the State courts.
Against W1w~n Writ May Issuë.-See subhead Grounds, supra.
Claims on Which Writ May Issve.-At.tachment may issue in an
action on a. claim which is not payable in the State, provided the court
has jurisdiction of the action.
fh~qnatured Claims.-A creditOr may bring an action on his claim
before it is due and have an attachment against the property of the
debtor in the cases mentioned in subdivisions three, four, five and six
of subhead Groimds. supra. and such property or its proceeds may be
held subject to the judgment thereafter to be rendered, but no judg-
ment may be rendered thereon until such obligation becomes due.
PAGENO="0186"
178
PTioceedi'ngs to Obtain.-The clerk of the court must issue the writ
upon receiving an affidavit by or on behalf of the plaintiff, which must
be filed, setting forth: (1) That the defendant is indebted to the plain-
tiff, specifying the amount, as near as may be, over and above all legal
setoffs and the nature of the indebtedness; (2) that the payment of
the same has not been secured by mortgage, lien, or pledge of personal
property situated in this State, or, if originally so secured, that such
security has, without any act of the plaintiff or the person to whom
the security was given, become impaired; (3) that the attachment is
not sought to hinder, delay, or defraud any creditor of the defendant;
and also (4) alleging, but not in the alternative, one or more o~f the
causes hereinbefore set forth as the grounds of attachment.
Atta.~1iment Bond.-Before issuing the writ, the clerk must require
a written undertaking on the part of the plaintiff, with sufficient sure-
ties, in a sum not less than double the amount claimed by the plaintiff,
but in no case exceeding $10,000, or less than $50. The conditions of
such undertaking must be that, if the defendant recover judgment, or
if the attachment is wrongfully issued, the plaintiff will pay all costs
that may be awarded to the defendant and all damages which he may
`sustain by reason of the attachment, not exceeding the sum specified
in the undertaking.
Indemnity.-See subhead Attachment Bond, supra.
Issuance of W~it.-Several writs may be issued at the same time to
the sheriffs of different counties; and plaintiff may have other writs
as often as he may require at any time before judgment.
At time of issuance of writ, or at any time thereafter, writ of garn-
ishment may issue in aid thereof. See topic Garnishment.
Property Subject to Attac/irnent.-The rights or shares which the
defendent may have in the stock of any corporation or company, to-
gether with the interest and profits thereon, and all debts due such de-
fendant. and all other property in this State~ of such defendant, not
cxelnpt from execution, may be attached, and, if judgment be recov-
ered, be sold to satisfy the judgment.
Levy.-Writ is executed: (a) in case of real property in defendant's
name, or growing crops on such property, by filing with the county
recorder a copy of the writ including description of the property at-
tached and notice that it is attached, and leaving like copy of writ,
description and notice with occupant of property, If there be one, other-
wise posting same on the property; (b) in case of real property in the
name of another or growing crops on such real property same as (a)
above except that notice must name person in whose name property is
recorded and notice must be given to that person and recorder must
index under his name as well; (c) in case of personal property capable
of manual delivery, by taking it into custody except that range stock,
between November 1 and May 15 may be attached by filing with
county recorder copy of writ and notice, together with statement of
number with marks and brands, if any~ or may be taken into custody
by direction of plaintiff; (d) in case of shares of stock or an interest
therein, by leaving with the president, secretary or other managing
agent copy of writ and notice stating that the stock, or defendant's
interest therein, is attached and taking the certificate into custody;
(e) in case of debts and credits and other personal property not capable
of manual delivery, by leaving with the person owing the debt or
PAGENO="0187"
179
having possession or control of credits or other personal property, a
copy of the writ and a notice that the debts or credits or other per-
sonal property are attached in pursuance of the writ.
*~`ff~.-If interest of parties is subserveci thereby, propert3T may be
sold and proceeds deposited in court to abide judgment; or after judg-
ment. to satisfy same-all as in case of execution.
Pioitie~.~~LSeveral attachments against the same defendant must
Oe executed in tile order in which they were received by the officer.
Dates of levies control Priorities.
Re7c~sc 07' Piopertii.-Defendant may obtain release of property by
givm~ notice and bond with sufficient sureties to effect that if plain-
11 r1~Over defendant will deliver property to officer or full va~Iue to
i)lamfltlfi: or defendant. may obtajn clischar~e of attachment by giving
bond in double tile amount claimed by Plaintiff.
T a o;~.-t1pon reasonable notice to plaintiff, defendant may
apply for discharge of writ if improperly or irregularly issued.
L ~ci~ .-Xo statutory provision.
Vermont Law Digest
Attachment
In any civil action. along with summons and complaint, except for
maliclous prosecution, libel. slander. or alienation of affection. (VRCP
4.1).
Ii L~o~cciaroi T~er J[ay Is.s'u~.-Xot necessary that plaintiff be a
res~cient of t1~e State.
(rio~ci7~._\~ here for attachment of personalty. only upon hearing
snowing probable grounds for complaint. and that amou1l~ of attach-
ment ~s reasonable. Writ ma be filed as if a financing statement under
~X-t)--4U1 to secure chattel. (12-3~51).
Possessory attachments require a motion, supporting affidavits, 5
days notice of hearing and finding by court of reasonable likelihood of
recovery. (VPICP 4.1).
D~.co7ution. and JIod?ficahon.-Anv time prior to final judgment,
defendant may move for dissolution or modification on basis of lack of
P10 )r~ie basis for plaintiff~s complaint. (VRCP 4.1).
A ~eJ~ ;ient Boi~ci.-Plaintiff must give defendant sufficient security
ye recognizance by some pei~on other than plaintiff. (12-657).
L~dcm.n i~y.-The officer to whom the writ is delivered may demand
from plaintiff sufficient security to indemnify him before making a
levy. (12-2741).
SaIe.-Attached property is generally held and sold on execution at
auction by the sheriff. but it may be sold before judgment on agreement
of parties, and tii~ money held to, protect both parties in a declining
market. (12-3401). The sheriff may sell perishable personal property
or property which cannot be kept without great expense, or would be
~neatlv reduced in value by keeping, upon the request of either party.
(12-3403).
Proceeds of sale are held by the officer or by tile court to be disposed
of as the property would have beeit disposed of under final judgment.
(12-3410).
Re7ea.se of Propert7,'.-Debtor may release his property from attach-
ment by filing a bond. A part of the property may be released by order
PAGENO="0188"
180
of the court when it appears that the value of the property attached is
greatly in excess of the claim. (12-3221).
Filing.~Where attachment is of real estate, in office where. deed
recorded. (12-3291).
Virginia Law Digest
Attachment
Actions in TVhic/t Allowed.-Writ may be had on legal or equitable
claim to any specific personal property or on claim on contract or for
damages in tort. (8-519).
Courts TTT/tich ilIay Issue Writ.-Juriscliction is in circuit courts.
(8-521). Where amount in controversy, exclusive of interest, does not
exceed $20, jurisdiction is before a~ district court judge (8-564) who
may also try attachments not exceeding $3,000. (16.1-77).
In lVhose Favor Writ May Issue.~Writ may issue in favor of any
person or corporation. (8-519).
Against Who~m TVrit May lssue.-\Vrit may issue against any per-
son or corporation. (8-520, 525).
Ciairn~s on Which TTTrit May Issue.-Writ may issue on claim to
specific property, or to any debt, or to damages for breach of contract,
or to damages for a tort exceeding $20 exclusive of interest. If claim
is for a debt not due attachment will not lie where only ground for the
writ is that the defendant or one of them is a foreign corporation or
nonresident having estate or debts owing to him within the State, but
will lie on any other ground. (8-519). As to attachment of ships,
boats and other vessels of more than 20 tons, see § 8-524.1.
Grounds are that the principal defendant or one of the principal
defendants: (1) Is a foreign corporation or nonresident and has estate
or has debts owing to such defendant or that such defendant being a
nonresident is entitled to the benefit of any liens, legal or equitable on
real or personal property; (2) is about. to remove from State with
intent to change domicile; (3) intends to remove, is removing or has
removed specific property claimed, or his own property, or proceeds
thereof, or a material part thereof, from State, endangering satisfac-
tion of judgment when recovered; (4) is converting, is about to con-
vert or has converted his property or some part thereof into money,
securities or evidences of debt with intent to hinder, delay or defraud
creditors; (5) has assigned or disposed of his estate or some part
thereof with intent to hinder, delay or defraud creditors, or is about
to do so; (6) has absconded or is about to abscond, or has concealed
himself to injury of creditors. or is a fugitive from justice. (8-520).
Attachment for rent will lie if lessee intends to remove, is removing or
has within 30 days removed his effects. (8-566).
Proceedings to Obtain.-Proceeding is commenced by filing a veri-
fied petition for writ stating particulars of claim, a sum certain which
at least should be recovered, when claim will be due if not due. and
one of more grounds therefor. (8-524). Defendant may answer or
demur. Defendant or any party joined as co-defendant may file
grounds of defense in writing, verified. No other pleadings are re-
quired. (8-523). Any amendment conducive to justice is permitted.
No writ will be dismissed for formal defects. (8-532). Cases in-
volving under S20 are tried by general district court. judge, on petition,
without formal pleadings or jury. (8-564).
Issuance.-Writs are issued by the clerk, returnable to court having
jurisdiction. (8-526). Other attachments may issue on same peti-
PAGENO="0189"
181
tion. (8-530). If defendant not served, further attachments or sum-
mons may issue until service, or an order of publication may be made
against a nonresident. (8-531).
Attachment Bonci.-No bond is required in order to sue out an at-
tachment. but if plaintiff desires, officer to take possession of any prop-
ert~ cf defendant. he must give bond, with surety, for at least double
fair value of property on which attachment is levied, conditioned to
pay all costs and damages which may be awarded against him, or
sustained by any person, by reason of his suing out attachment.
~-~3S). In absence of sucl~ bond, if defendant or his agent or attorney
files an affidavit of substantial defense, attachment will stand dis-
missed unless, within 10 days, plaintiff files bond, with security, for
at least. double amount of claim sworn to or sued for~ conditioned that
plaintiff will prosecute his attachment with diligence, and that
obligors will pay all costs and damages which may be awarded against
nlaintih. or sustained by defendant or any other person, by reason
of suing out attachment. (8-539). Action continues though attach-
n~ent be. dismissed if defendant. served or appeared generally and court
wo'~ld otherwise have jurisdiction. (8-557).
R~7~a.~e 07' Piopeity.-Defendant may secure release and return of
am- propert.y by forthcoming bond. (8-540).
Tian.sfei' of Oa.~'.~e.-If real estate is involved in attachment issued
out of general district court, suit is transferred to circuit court.
(10.1-105).
Lry.-Offlcer makes levy or if bond is filed, seizes property. (8-537---
I. Plaintiff has lien from time of levy. (8-545). Perishable property
or property expensive to keep rna,y be sold by order of court. (8-549).
Restraining orders ma-v be made or a receiver appointed to secure prop-
c-rtv. (S-536).
Land may be levied upon. (8-533 to 535, 537, 559).
SaJe.-Property levied on which is perishable or expensive to keep
may be sold before judgment. (8-549). No real estate may be sold until
other property is exhausted. (8-559).
Notice of attachment on real property should be recorded as protec-
tion against subsequent bona fide purchasers for value without notice.
(8-142, 143).
Priorities between successive attachments of the same property are
according to time of levies thereon or from time of service upon co-
defendant having property in his possession. (8-545).
T/~ iid-Pai'ty 07a.im-s.-Any person claiming interest in property at-
tached may file petition before delivery of property or proceeds thereof
to plaintiff, giving security for costs, and without other pleading, court
holds inquiry, with jury if requested. (8-560).
Rehearin.g.-A defendant served by publication, and not having
appeared, may petition for rehearing within 1 year after being per-
sonally served with copy of judgment, otherwise within 5 years
from entry thereof, on giving security for costs. (8-562).
Washington Law Digest
Attachment
In view of recent decisions by U.S. Supreme Coui~t (e.g., 395 U.S.
337; 407 U.S. 67) and Washington appellate courts (e.g., 6 Wn. App.
971, 497 P. 2d 250; 7 Wn. App. 219, 499 P. 2d 92), constitutional status
PAGENO="0190"
182
of attachment, garnishment, and replevin statutes is in doubt. Trend
of recent decisions is to require, at a minimum, notice and a show
cause hearing before a writ of attachment, garnishment or replevin
will be issued.
Actions in Which Ailowed.-Attachment may issue in any action
at any time before judgment. (7.12.010).
Courts Which May Issue Writ.-Attachments are issued by court
in which action is pending. (7.12.020). Justices of the peace may issue
writs of attachment when account is less than $1,000 but may not issue
writs upon real property or any interest therein. (3.20.020; 7.12.330).
In TVhose Favor Writ May Issue.-There is no statutory provision
against issuance of a writ of attachment on behalf of a nonresident or
a foreign corporation.
Against Whom Writ May Issue.-See subhead Grounds, infra.
U1aim~s on TTThic/t Writ May Issue.-Statute authorizing attachment
to issue on debt which is not due if only time is wanting to fix absolute
indebtedness declared unconstitutional. (7.12.030; 363 F. Supp. 725).
There is no statutory provision against issuance of a writ of attach-
ment where claim sued on is not payable within Sta.te.
Grounds for attachment are: (1) Defendant is a foreign corpora-
tion; (2) defendant is nonresident; (3) defendant conceals himself or
has absconded or absented himself from usual abode so that ordinary
process cannot be served on him; (4) defendant has removed or is
about to remove property from State or has assigned, secreted or dis-
posed of property, or is about to do so, with intent to delay or defraud
creditors; (5) defendant is about to convert property into money to
place it beyond reach of creditors; (6) defendant was fraudulent in
contracting debt which is basis of action; (7) damages for which action
is brought are for injuries arising from commission of felony; (8)
action is one for recovery of a contract. (7.12.020).
Proceedings to Obtain.-Plaintiff or someone in his behalf must file
affidavit showing that defendant is indebted to plaintiff in a specified
amount over and above all just credits and offsets, that attachment is
not sought and action is not prosecuted to hinder, delay or defraud any
creditor of defendant, and that statutory ground for attachment exists.
(7.12.020).
Attachment Bond.-Plaintiff must give bond for double amount of
his demand; but in no case. less than $300 in superior court or $50 in
the justice court. (7.12.060). Upon proper showing, court may reduce
amount of bond. (4.44.470).
When it is desired to attach real estate only, and such fact is stated
in the affidavit for attachment, and the. ground of attachment is that
the defendant is a foreign corporation, or is not a resident of the State,
or conceals himself so that the ordinary process of law cannot be served
upon him, or has absconded or absented himself from his usual place
of abode, so that the. ordinary process of law cannot be served upon
him, the writ of attachment may issue without bond by the plaintiff.
(7.12.060).
Jievy.-The writ is directed to the sheriff of any county where prop-
erty of the defendant may be, requiring him to attach and keep prop-
erty of the defendant to the amount stated in the affidavit, and the
sheriff, wherever possible, will levy on property 50 percent greater
in valuation than the amount so stated. (7.12.090).
PAGENO="0191"
183
Real property is attached by filing a copy of the writ, together with
a description of the Property, ~vith the county auditor of the county
in which it is situated. Personal pi~operty, capable of manual delivery,
is attached in- the sheriff's takihg it into custody. Stocks or shares, or
interests therein of any corporation, are attached by leaving with
prestdent. secretary. cashier or managing agent thereof a copy of
writ, and a notice stating that stock or interest of defendant is attached
in pursuance of such writ. (7.12.130).
Ii2de2nnity.-Sheriff~ before executing a writ of attachment, may
require indemnity bond in addition to attachment bond. (36.28.040).
Lien of attachment arises at moment of levy and continues until
property is sold in satisfaction of judgment. (7:12.210; 23 Wash. 693,
63P. ~35~*
Piioi~tk~c.-Attachments against same defendant must be executed
in order in which they were received by sheriff. (7.12.110). Priority
between attachments upon same property is awarded according to
order of their levy. (1.12.210; 12 Wash. 71,40 P.623).
Release of P~'opeity.-Property may be released upon bond executed
by defendant to plaintiff, and approved by officer having attachment,
to effect that defendant will perform judgment of court. (7.12.2.50).
&ile.-If property is perishable or subject to immediate and serious
waste or decay. sheriff may sell it. Court may order sale of attached
prop er~y before judgment if it~ appears that interests of parties will
he served thereby. but only after notice to adverse party. (7.12.160).
TI iid Party C7a~m.s.-if a person other than defendant claims at-
teched property. he has right to demand and receive it from attaching
officer on making affidavit that property is his or that lie has right to
immediate possession, and posting bond in twice value of property
conditioned on his appearance in court within 10 days to make good
his title. (6.20.010).
Vacation or Modiflcation.-Attachment ma be discharged upon
motion if shown to have bee~n irregularly or improperly issued.
(1.12.270).
See provision of F.C.C. § 7-602.
West Virginia Law Digest
Attachment
Actions in Which AllowecI.-Attachment may issue in any action or
proceeding at law or suit in equity for the recovery of any claim in
contract or tort. (c. 38, art. 7, § 1,; c. 50, art. 9, § 1).
Courts TVhich May Issue Writ.-No restrictions.
Time for Issuance.-Attachment may issue when action or, suit is
begun or at any time before judgment. (c. 38, art. 7, § 1; c. 50, art.
9,~1).
Property Again~st Which Writ May Issue.-Attachment may issue
against all kinds of property, except that in justice court it may issue
only against personal property. `(c. 33, artS 7, `~ 1, 7; c. 50, art. 9, § 1).
In Whose Favor Writ May Iss'ue.-Any plaintiff, resident or
nonresident.
Claims on Which Writ May Issue._Statute does not require that
the claim sued on be payable within the State. Except in certair~. cases
and provided a certain showing be made (see infra, subhead Grounds)
attachment may issue on an unmatured claim.
PAGENO="0192"
184
* Grounds.-The grounds for attachment are that the defendant, or
one of the defendants: (1) is a foreign corporation, or a nonresident of
the State; (2) has left, or is about to leave, the State with intent to
defraud his creditors; (3) so conceals himself that a summons cannot
be served upon him; (4) is removing or is about to remove his
property, or the proceeds of the sale of his property, or a material part
of such property or proceeds, out of the State, so that process of execu-
tion on a judgment or decree in such action or suit, when it is obtained,
will be unavailing; (5) is converting, or is about to convert, his prop-
erty or a material part thereof into money or securities, with in-
tent to defraud his creditors; (6) has assigned or disposed of his
property or a material part thereof, or is about to do so, with intent to
defraud his creditors; (7) has property or rights in action which he
conceals; (8) fraudulently contracted the debt or incurred the liabil-
ity for which the action or suit is about to be or is brought. (c. 38, art.
7, §2; c. 50, art. 9, §1).
The attachment may be sued out for a debt or claim, whether the
same is due or not, upon any of the grounds aforesaid, but if the debt
or claim is not due~ the affidavit must show- when it will become due;
provided, that an attachment for a debt not due, may not issue in case
of a foreign corporation upon groimd of nonresidence alone, or in case
of nonresident, unless the affidavit shows that defendant was a resi-
dent of the State when the debt was contracted, and plaintiff be-
lieved he would remain a resident of the State at the time he gave de-
fendant credit. (c. 38, art. 7, § 5; c. 50, art. 9, § 4).
Proceedings to Obtain.-Proceeding is commenced by fililig in
clerk's office or before justice an affidavit of plantiff or of some credible
person, statmg nature of claim, amount which affiant believes plaintiff
is entitled to recover, and that affiant believes that one or more grounds
for attachment exists. (c. 38, art. 7, § 1; c. 50, art. 9, § 1).
Attachment Bond.-Piaintiff is iiot required to give bond as a condi-
tion of the issuance and levy of a. writ of attachment from a court of
record; but officer cannot take possession of personal property until
plaintiff gives bond for at least twice the estimated value thereof, and
not less than $500. (c. 38, art. 7, § 8). In justice court, attachment can-
not issue until Plaintiff gives bond in a penalty of double the amount
of his claim. (c. 50. art. 9, § 2).
Bond may be attached if insufficient or improper. (c. 38, art. 7, § 11).
T7acation or Modification.-R.ight to sue out attachment may be con-
tested and attachment quashed if court deems affidavit insufficient. De-
fendant may controvert existence of grounds for attachment and of
facts relied upon to show existence of such grounds by plea in bar of
attachment, except grounds only may be controverted before justice of
peace. Upon issue so raised trial is held by jur unless waived. (c. 38,
art. 7, §~ 32-33, c. 50, art. 9, § 10). Defendant. or any party to attach-
meat or forthcomine bond or party whose rights are affected or officer.
who may be liable t'~ plaintiff by reason of ~ucli bond being adjudged
bad. may make defense to attachment (c. 38, art. 7, § 31).
issuance and Execution of Wi~it.-Writs are issued by the clerk or
justice, returnable to the court having jurisdiction. Justices try the at-
tachment if they h'n e 1uusdmctmon of the action to which it is ancill~rv
(c. 38, art.. 7, § 4; c. 50, art. 3, § 3, art. 9, § 1). An attachment may ,l2e,
PAGENO="0193"
185
issued or executed on Sunday if oath is made that defendant is actually
removing his effects on that day. (c. 38, art. 7, § 18; c. 50, art. 9, § 1).
Except before justice of the peace, process commencing action must be
served upon attachment debtor~ in any manner provided for serving
process commencing other suits. (c. 38, art. 7, § 30). Before justices,
if defendant is not served, a second summons is issued to be served or
posted. whereupon trial proceeds whether served or not. (c. 50, art.
9.~10).
.~e~?I.-Real or personal estate may be levied on (c. 38, art. 7, § 7)
and if bond be given property is seized. (c. 38, art. 7, § 12; c. 50, art. 9,
~6).
livlem ~ ~t?/.-Except as hereinbefore indicated (see supra, subhead
Attachment. Bond). officer executing writ has 110 right to demand
mdemnitv before making a levv~ (c. 38. art. 7, §~ 8-9; c. 50, art. 9, § 2).
Lien ~n realty exists from is~uance of writ if us pendens is filed.
Lien on pei~sonalty dates from levy or service on garnishee but if no
seizure is made lien does not attach to personalt3~ sold for valuable
consideration. (c. 38. art. 7. § 19).
Scile.-Perishable propeity or property expensive to keep may be
sold by order of court. or judge in vacation. (c. 38, art. 7, § 23; c. 50,
art. 9. ~ 21').
Prioiities between attachments are determined according to dates of
levies. (c. 3S. art. 7. § 19: c. 50 art.. 9. § 20). Prior attachment is entitled
to prior satisfaction and subsequent attachments do not prorate.
Release of Piopei'tq.-Defendant may secure release of property
levied on by giving forthcoming bond in amount of the claim aild
costs. (c. 38. art. 7. ~ 20; c. 50. art. 9, § 8). Plaintiff, within 30 days
after return thereof. may file exceptions to forthcoming bond given
by defendant to attaching officer. If exceptions are sustained, court
directs officer to file good bond. If officer fails to do so, l)lailltiff has
remedy against attaching officer on official bond. (c. 38, art.. 7, § 21).
TIE ~id Paity C'7a~ui?.9.-Any person claiming an interest in property
attached may file petition before sale of property Or (except before
justice of the peace) within 1 y~ar from sale and before delivery of
proceeds to plaintiff, and, on giving security for costs, may without
other pleading have jury trial of his claim. (c. 38, art. 7, § 41; c. 50,
art. 10. § 1). In justice's court, property is delivered to claimant
furnishing bond in double value thereof. (c. 50, art. 10, § 1).
Attachment. for rent will issue on complaint under oath that tenant
intends to remove, or is removing, or has within 30 days removed,
his effects from the leased premises and stating rent reserved, time
when payable. and that it will be payable within 1 year, and that
there will be left on the premises property liable to distress sufficient
to satisfy tile rent so to become payable. (c. 37, art. 6, § 17; c. 50, art. 9~
§5).
Wisconsin Law Digest
Attachment
Actions in Which Allowed.-An attachment may be had in actions
based ~n contract, judgment or tort where the amount of indebtedness
exceeds S50 (266.03), except n~ writ, shall issue against a rilullicipal
corporation nor in any action for tile price of liquor sold at retail
(266.01).
51-207-75------13
PAGENO="0194"
186
Courts lT~hich i1[ay Issue lTTnit._Courts of record.
Property Subject to Attachment.-All property in the State not
exempt from execution is subject to attachment. (266.12).
In Whose Favor Writ May Issue.-Any creditor-plaintiff may ob-
tain an attachment in a proper case. (266.01).
Against Whom Writ May issue.-lVrit may issue against any debtor
except mun~cipal corporation. (266.01).
Claims on Which TVrit May Issue.-An attachment on certain speci-
fied grounds may issue on an unmatureci debt. (266.03[3]).
Grounds.-In actions on contract or judgment, attachment is per-
mitted where the defendant: (1) Is absent from, or concealed within,
the State; (2) is a domestic corporation no officer of which can be
found; (3) has disposed of or concealed his property or some part
thereof, or is about to do so. with intent to defraud his creditors; (4)
has removed some of his property out of the State, or is about to do
so, with like intent; (5) fraudulently incurred the obligation sued on;
(6) is a nonresident; (7) is a foreign corporation; or (8) has defaulted
as a public officer or as principal on official bond. Attachment may issue
on an unmatured debt on any of first four grounds aforementioned.
(266.03).
In tort actions, attachment is permitted where the defendant: (1) Is
a. nonresident or of unknown residence; or (2) is a foreign corporation.
(266.03).
Proceedings to Obtciin.-Writ may issue at any time before final
judgment and after a summons is issued and shown to clerk (266.02)
it must be based on an affidavit, of plaintiff or some one in his behalf,
alleging positively indebtedness or liability in tort, and specifying
precise amount claimed above all setoffs (which must exceed $50), and
affirming affiant's knowledge or belief of existence of one or more of
grounds for attachment above specified (266.03, 304.02).
Attachment Boncl.-Affidavit must be accompanied by an under-
taking. in not less than $250, to pay defendant's damages by attach-
ment, and his costs, in case lie recovers judgment; and a larger under-
taming can be required by court afterwards, on motion. (266.06-07).
Where action is on unmatured claim, bond must be for three times
amount demanded. (266.03).
Attack by Defendan.t.-The defendant may within 10 days, or the
time to answer the complaint, deny the allegations in plaintiff's
affidavit, except the alleged liability and the amount thereof. If defend-
ant has made assignment for benefit of creditors, his assignee may
traverse and defend. A preliminary trial will then be held with plain-
tiff having the affirmative. If plaintiff fails to prove his allegations,
the property is returned and defendant may recover, as an offset, his
costs and damages, and judgment for the excess, if any. (266.19-20).
Levy.-Personal property is attached as upon an execution (266.12)
and the attaching officer causes an appraisal to be made (266.10). To
attach real estate the officer files with the register of deeds a copy of the
writ with a certificate that he has attached such real estate. (266.11).
Indeninity.-Levying officer may demand sufficient surety to indem-
nify him for attaching such property. (266.13).
Priorities.-Priorities between attachments are according to time of
placement in the executing officer's hands. (18 Wis. 406).
PAGENO="0195"
187
Release of Froperty.-At any time before judgment defendant may
deliver to attaching officer a bond double amount of complaint, or
double appraisal value, or for real estate a sum fixed by court; plain-
tiff may except to sureties, but if sureties justify to officer's satisfaction,
property is returned. (266.16-17).
.Sa7'~.-Depreciable property, or property entailing expense in its
keeping. may be sold on a court order. (26(3.14).
Th iicl Party CTlaims._Any person not a party whose property is
attached may be made a party and summary relief may be granted him.
(266.26).
Vacation or Mociification.-Court may vacate or modify writ.
(266.18).
Coi~unier Transcwtion.s.-No attachment of property purchased in
a consumer transaction until after entry of judgment. (425.111).
Wyoming Law Digest
Attachment
Aetioi~s in TJ7zich Allowed.~~~LAttachment may issue in civil action
for recovery of money. eithei~ at or after commencement thereof.
(1-571: 1-226).
Courts 1T7~ k/~ if a!! Issue Thnit.-District courts (1-226) ; justices
of the peace (1-~7i).
I~ Whose Favor Writ May Issue.-Any plaintiff may obtain an
attachment (1-226; 1-571); no provision discriminating against non-
resident plaintiffs.
Against Whom. Writ May Is.sue.-No statutory restriction.
Claims on. Which W?it May Issue.-Attachment may issue upon
claims not yet due. (1-269).
Grounds for attachment generally are that defendant, or one of
several defendants: (1) Is a foreign corporation or is, or is about to
become, a nonresident; (2) has absconded with intent to defraud credi-
tors; (3) has left county of his residence to avoid service of summons;
(4) so conceals himself that summons cannot be served on him; (5) is
about to remove property from jurisdiction with intent to defraud
creditors; (6) is about to convei~t property into money for purpose of
placmg it beyond reach of creditors; (7) has property or rights in
action which lie conceals: (8) has assigned, removed or disposed of
property with intent to defraud creditors or is about to do so; (9)
fraudulently or criminally contracted debt or incurred obligation on
which action brought; or (10) that action is on contract, express or
implied, for direct payment of not exceeding $1,500, which is unsecured
or security for which has become inadequate. (1-226).
In justice's court, grounds of attachment are substantially the same,
except that the limit in ground (10) is $200. (1-571).
Where plaintiff's claim is not due, the grounds for attachment are:
That the debtor has sold, conveyed, or otherwise disposed of his prop-
erty, with the fraudulent intent to cheat or defraud his creditors, or to
hinder or delay them in the coll~ction of their debts; that he is about to
make such sale, conveyance, or disposition of his property, with such
fraudulent intent; that he is about to remove his property, or a material
part thereof, with the intent, or to the effect, of cheating or defrauding
PAGENO="0196"
188
his creditors, or of hindering or delaying them in the collection of their
debts; that he is about to become a nonresident of the State. (1-269).
Proceedings to Obtain.-To obtain the writ of attachment affidavit
of plaintiff, his agent or attorney, must be filed, showing one or more
of the above grounds and the nature of the claim, that it is just and
the amount which affiant believes plaintiff ought to recover. (1-227).
Attachment Boncl.-Plaintiff,. before obtaining the writ, must also
execute an undertaking to defendant with one or more sufficient
sureties in an amount equal to double plaintiff's claim (not less than
$50 in justice court), to the effect that plaintiff will pay defendant all
damages which he may sustain by reason of the attachment if the order
be wrongfully obtained. (1-228; 1-572).
Lev~,'.-Personal property in debtor's possession is attached by tak-
ing possession; real property by delivering a certificate containing title
of the cause, nan-ies of parties, and description of property to the
county clerk of the county. If order of attachment is issued at com-
mencement of action an endorsement must be made on summons to
effect that defendant's real estate has been or will be attached. If order
of attachment is issued after commencement of action a copy of notice
filed inclerk's office must be mailed to defendant by registered mail at
his last known post-office address by plaintiff, his agent, or attorney,
and proof thereof must be made by affidavit and filed in office of clerk
of court before attached real estate may be ordered sold. (1-233).
Personal property is levied upon in similar manner before justice
of the peace. (1-575).
Indernnity.-No statutory provision.
Lien attaches at time of service. (1-243).
Priorities.-In district court. orders of attachment bind the property
from time of service. (1-243). Several orders are executed in the order
received b Sheriff. (1-232). In justice court, all creditors attaching
before judgment share pro rata in proceeds of attached property.
(1-599).
Release of property attached may be obained by defendant at any
time before judgment by giving bond in double amount of claim stated
in plaintiff's affidavit. (1-250).
Sale.-Perishable property may be sold pending suit, in the manner
directed b district court (1-249), and as upon execution in justice
court (1-586).
Third Party Ulaims.-Attaching officer under district court or
justice court writ must have such claims tried. (1-263, 587).
Vacation or .1liodiflcation.-Defendarit may move to discharge
attachment at any time before judgment and upon reasonable notice,
Motion may be heard upon affidavits. (1-267-3).
PAGENO="0197"
III. ASSIGNMENT OF WAGES
PAGENO="0198"
PAGENO="0199"
Assignment of Wages
CONTEXTS
Page
statement 193
Alabama 194
Alaska 194
194
Arkansas 195
Califoinia 195
C~orado 195
Connecticut 196
1~~avare 196
Dtrict of Coliumhio 196
Florida 196
Geor~ia 196
llaWiij 196
Idaho 196
Illinois 197
Indiana 197
Iowa 198
Kansas 198
Kentucky 198
Louisiana 199
Maine 199
Maryland 199
Massachusetts 199
Michigan 201
Minn~sota 201
Missussippi 201
Missouri 202
Montana 202
Nebraska 202
Nevada 202
New Hampshire 202
\ew Jersey 203
New Mexico 203
~\ew ~1ork 203
North Carolina 205
North Dakota 205
Ohio 205
Oklahoma 205
Ore~on 206
Pennsylvania 206
Puerto Rico 206
(191)
PAGENO="0200"
192
Page
Rhode Island - 206
South Carolina 207
South Dakota 207
Tennessee 207
Texas 208
Utah 208
Vermont 208
Virginia
209
West Virginia 209
Wisconsin 210
Wyoming 210
PAGENO="0201"
III. Assignment of Wages
General Statement
The broad definition of assignment is a transfer or making over
to another of the whole of any property, real or personal, in posses-
sion or in action, or of any estate or right therein. An assignment of
wage, by definition, then, would~ be the transfer of a right to collect
current or future wages. (Black's Law Dictionary, 4th Edition,
1951.)
The wage assignment provisions 1 as set out in this chapter refer
to the general survey of State laws. Where permissible, the wage as-
signment may also be utilized as a procedure to satisfy judgment for
sums in arrears or currently due under court orders and under cer-
tain State's statutes for alimony, maintenance and support of the
dependent spouse. child and children. In five States, California, Con-
necticut (public welfare cases only). Michigan, Ohio, and Wisconsin,
there is a specific reference that wage assignments for child support
is covered by State law. For a complete and comprehensive under-
standing, it is necessary to refer to other provisions in the law which
set out additional requirements.
Reprinted from the Consumer Credit Gui~de, Published by Commerce Clearing House, Inc.,
Washington. D.C. No reprint may be made of this material without the express permission
of the publisher.
(193)
51-207 O-75----14'
PAGENO="0202"
194
ALABAMA
Reference: are to Code of Alabama, Recompiled 1958, as amended
I Coverage.-Assignments of future wages unenforceable. (T. 39, Sec. 201)
2Requirements None.
3Paymen~ Limitations.-None.
ALASKA
No statutory provisions pertaining to assignment of wages.4
ARIZONA
References are to Arizona Revised Stat sacs, as amended
Coverage.-SmaIl Loan Low: Assignments given to secure small loans. (Sec. 6-631(a),
ar amended by Law: 1971, C/s. 156, effective August 13, 1971)
Coverage~
The heading "Coverage" provides a listing of the types of wage assign-
ments passed upon by the state legislatures. Where wage assignments are
prohibited, that fact is noted under this heading. Instalment credit statutes
containing wage assignment provisions are identified. General contract rules
govern aspects of wage assignments not covered by statute.
Requirements
The requirements for validity and enforceability of wage assignments are
set forth generally and under the specific instalment credit statutes. Require-
ments include the need for writing, signatures, copies to employers, notices
of default, recording, etc.
Payment Limitations
Some state statutes limit the percentage of wages which may be assigned,
the period of time during which collection may be made, or the length of time
during which an assignment remains valid. These restrictions, if any, appeat
under "Payment Limitations."
Statutory Citations4
At the end of each statutory provision its law location is parenthetically
described. Title, Article and Section numbers refer to the state statutes or
codes. Where the Gums reproduces a statutory provision in full text, it is
shown by a state abbreviation and paragraph number in parentheses, such as
"(Cal. ¶ 6001)" which is a reference to the paragraph in the state division.
PAGENO="0203"
195
Requirements-Small Loan Law: Assignment to secure small loan invalid unless:
(a) in writing, (h) spouse's assent endorsed or attached, (c) limited to 10% of wages
and 48 months. (Sec. 6-631(c))
Payment Limitations-Small Loan Law: Assignment limited to (a) 10% of each
wage payment, (b) period oi 48 months. (Sec. 6-631(c))
ARKANSAS
References are to Arkansas Statutes 1947, as amended
- Coverage-Assignments given to secure loans (Sec. 81-316) and all assignments of
luture wages. (Sec. 81-317)
Requirements.-Assignmcnt to secure loan not valid unless: (a) accepted in writing by
employer, (b) filed with county recorder. (Sec. 81-316) Every assignment of future
wages or married mar: must have written consent of wife. (Sec. 81-317)
Payment Limitations-None.
CALIFORNIA
References are to California Codes, as amended
~ Coverage-Assignments of earned and future wages. Assignment of future wages
unenforceable unless made for the necessities of life. (Labor Code, Sec. 300) Court ordered
assignments tor child sup;~rt, maintenance~ and education. (Civi' Code, Sec. 4701, amended
by Laws 1972, Cli. 802) Retail Installment ~S'a!es Law (Unruii Act): Assignment of wages
prohibited except for necessities of life. (Cal. ¶1 6033)
Requirements-No assignments of w~ages valid unless: (a) in writing, signed by
employee, and transaction identified, (b) written consent of spouse attached, (c) written
consent of parent or guardian if minor employee is assignor, (d) employee who is single
or adult or both states these facts, (e) contains denial of the existence of other assign-
merits, (f) notarized and filed with employer. (Labor Code, Sec. 300) Court order of
assignment ior child support operates as assignment by parents upon service of copy of
order on employer; employer may deduct $1 for each payment pursuant to order;
order has priority over any attachment, execution or other assignment. (avil Code, Sec.
4701, as amended by Laws 1972, Cli. 802)
Payment Liniitations.-Assignment limited to 50% of wage payment, but to 25% if
wages necessary for support of family members. (Labor Code, Sec. 300)
COLORADO
References arc to Colorado Revised Statutes, 1963, as amended
Coverage.-Assignments with exception of revocable deduction authorizations made
for hospital, medical, stock purchase, savings, insurance, charity, credit union, bank,
savings and loan, and other financial institutions, or other similar purposes. Where
consumer transactions are involved, assignments are subject to restrictions of Uniform
Consumer Credit Code (see "Consumer transactions" below). (Sec. 80-15-1, 80-15-7,
as an:ended by Laws 1971, Cli. 207) Consumer transactions: Assignments of earnings in
connection with consumer credit sales, consumer leases and consumer loans (Sec.
73-2-410, 73-3-403, as added by Laws 1971, Cli. 207, approved June 4, 1971, effective October
1, 1971) [See UCCC iT 5110, 5223.]
Requirements.-General: Assignment not valid unless: (a) in writing, (b) for fixed
and definite part of wages (Sec. 80-15-1, asamended by Laws 1971, Ch. 207), (c) copy given
to employer within 5 days and to employee (Sec. 80-15-2), (d) spouse signs and signa-
ture acknowledged by notary if assignment is of future wages. (Sec. 80-15-4) Consumer
transactions: Assignment of earnings taken by creditor from buyer, lessee or debtor as
payment for or as security for payment of debt arising out of consumer credit transaction
is unenforceable by assignee and revocable by buyer, lessee or debtor. In connection
with loan transactions, above prohibition~ does not apply to earnings in the form of
accounts receivable or commissions payable to the debtor for services rendered. (Sees.
73-2-410, 73-3-403, as added by Laws 1971, Cli. 207, approved June 4, 1971, effective October 1,
1971) A sale of unpaid earnings, if made~ in consideration of payment of money to or
for account of seller of earnings is deemed a loan secured by an assignment of earnings.
(Sec. 73-3-403, as added by Laws 1971, Cli. 207, approved June 4, 1971, effective October 1,
1971) [See UCCCIJ51IO, 5223,]
Payment Limitations.-General: Limited to earned wages or wages to be earned
within 30 days from time of assignment. (Sec. 80-15-1, as amended by Lrws 1971, Cli. 207)
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CONNECTICUT
Ref ercnccs are to General Statutes of Connecticut, Revision of 1958, as amended
Coverage-Assignments of wages void except as to amounts due for support in public
welfare cases. (Sec. 52.361(g)) Small Loan Law: Assignments of wages not allowed.
(Sec. 36.236)
DELAWARE
References are to Delaware Code Annotated, as amended
Coverage.-Assignments given as security for loans on `real estate, or otherwise".
(T. 5, Sec. 2115)
Requirements-Assignment cannot be taken as security for money loaned on "real
estate, or otherwise," without wriften consent of employer. (T. 5, Sec. 2115)
Payment Limitations.-None.
DISTRICT OF COLUMBIA
References are to Code of the District of Columbia, 1967, as amended
Coverage-Contract made in District of Columbia to assi~n future salary or wages
invalid and unenforceable. (Sec. 28-2305(a)). Consumer Protection Law: Taking of assign-
ment of earnings of consumer by creditor as payment of or security for payment of
consumer credit sale or direct instalment I~n obligation prohibited and unenforceable.
(Sec. 28-3804, as added by P. L. 92-200, approved and effective December 17, 1971)
FLORIDA1
References are to Florida Statutes 1967, as amended
Coverage.-Consumer Finance Act. (Ch. 516) [Nom: Until the October 1, 1973, effec-
tive date of Laws 1973, Ch. 192, coverage is also provided under Ch. 519, the Consumer
Finance Law.-CCH.]
Requirements.-No assignment of wages given to secure any loan is valid. (Sec.
516.17, as amended by Laws 1973, Ch. 192, approved June 17, 1973, effective October 1, 1973)
[Nom: Until October 1, 1973, Section 516.17, and Section 519.11, repealed by Laws 1973,
Ch. 192, provide that an employer should pay an assignment of wages given to secure
a small loan only if: (a) loan has been exchanged simultaneously with execution, (b)
assignment is in writing and signed by employee, (c) assignment is signed by wife.-
Payment Limitations.-None.
GEORGIA
No statutory provisions pertaining to assignment of wages.
HAWAII
References are to Hawaii Revised Statutes, as amended
Coverage.-Assignments in employment agency contracts. (Sec. 373-11(i)) Small
Loan Act: Assignments made to secure small loans. (Sec. 409-20) Retail Instalment Sales
Act: Assignments in retail instalment contracts unenforceable. (Hawaii ¶t6036)
Requirements._Assignment in employment agency contract must be in form approved
by director of labor. (Sec. 373-11(i)) Small Loan Act: Assignment not valid unless:
(a) in writing and signed by borrower, (b) signed by spouse. (Sec. 409-20)
Payment Limitations.-Small Loan Act: Limited to 20 months if repayable in equal
monthly instalments of principal or 12 months if repayable in any other manner. (Sec. 409-18)
IDAHO
References are to Laws 1971, Ch. 299, (Idaho Uniform Consumer Credit Code), approved
March 30, 1971, effective July 1, 1971
Coverage.-Assignments of earnings in connection with consumer credit sales, con-
sumer leases and consumer loans. (Secs. 28-32-410, 28-33-403) [NovE: See UOCC ¶ 5110,
5223 for Secs. 2.410, 3.403.-CCH.]
Chapter 74-380 (Support of Dependent Children). Provides that a debtor may execute a wage assign-
ment as part of an approved plan with the department to satisfy or retire a child support debt or obligation.
(See Chapter III, Part 2)
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Requirements.-Assignment of earnings taken by creditor from a buyer, lessee or
debtor as payment for or as security for payment of a debt arising out of a consumer
credit transaction is unenforceable by the assignee and revocable by the buyer, lessee
or debtor. An employee is not prohibited from making a revocable authorization of
deductions from his earnings. (Secs. 28-32-410, 28-33-403) A sale of unpaid earnings, if
made in consideration of payment of money to or for the account of the seller of the
earnings, is deemed a loan secured by an assignment of earnings. (Sec. 28-33-403) [No'rE:
See UCCC ¶~ 5110, 5223 for Secs. 2.410, 3.403.-CCH.]
Payment Limitations.-No provisions.
ILLINOIS
Ref erer.ces are to Act of July 1, 1935, and Illinois Revised Statutes, 1971, as amended
Coverage.-All assignments. (Secs. 1, 2, 4, 5; Ch. 48, Sees. 39.1, 39.2, 39.4, 39.5)
Requirements.-Assignment not valid unless: (a) in writing, signed by the employee
in person, bearing the date of execution, the social security number, the name of the
employer, the amount of money loaned or the price of the article sold, the rate of interest
or time-price differential and the date when such payments are due; (b) given to secure
an existing debt of the employee or one contracted for simultaneously with its execution;
(c) exact copy is furnished to the employee at the time of execution; (d) contains words
"Wage Assignment" printed or written in bold face letters of not less than ~ inch in height
at the head of the wage assignment and also one inch above or below the line where the
employee signs.that assignment; (e) written as a separate instrument complete in itself
and not a part of any conditional sales contract or other instrument. (Sec. 1; Ch. 48, Sec.
39.1.) Demand on employer for wages may not be served unless: (a) there has been a
default of more than 40 days in payment of the indebtedness and the default has con-
tinued to the date of the demand; (b) the demand contains a correct statement as to the
amount in default and the original or a phötostatic copy of the assignment is exhibited to
the employer; (c) not less than 20 days before serving the demand, a notice of intention
to make the demand has been served upon the employee and an advice copy sent to the
employer by registered or certified mail. The demand applies only to wages due at the
time of service of the demand and upon~ subsequent wages until the total amount due
under the assignment is paid or until the expiration of the employer's payroll period
ending immediately prior to 30 days after service of such demand, whichever first occurs.
(Sec. 2; Ch. 48, Sec. 39.2.) If the employee has not given notice of defense within 20 days
after receiving notice of intention to make demand, the creditor may proceed with his
demand, and the employer must commence payment not sooner than five business days
after service, unless a notice of defense is received. If a notice of defense is received by
an employer within the specified period, no wages are subject to a demand served by the
creditor described in the notice of defense, unless the employer receives a copy of a sub-
sequent written agreement between the creditor and employee authorizing such payments.
(Sec. 4.2; Ch. 48, Sec. 39.4b.)
Payment Limitations.-15% of gross of each wage payment. (Sec. 4; Ch. 48, Sec.
39.4) Void after 72 months. (Sec. 5; Ch. 48~ Sec. 39.5)
INDIANA
References are to Indiana Code of 1971, as amended
Coverage.-General: Assignments of future wages given to wage brokers to secure
loans. (Sees. 22-2-7-1---22-2-7-5, 22-2-7-8) Assignments for payroll deductions. (Sees.
22-2-7-5, 22-2-6-1, 22-2-6-2, 22-2-7-8) Consumer Transactions: Assignments of earnings
in connection with consumer credit sale, consumer lease consumer loan or otherwise.
(Secs. 24-4.5-2-410, 24-4.5-3-403, as added by Laws 1971, P. L. No. 366) [See UCC 115110,
5223.]
Requiremnents.-General: Assignments to wage broker null and void unless: (a)
interest on loan not more than 8% per year, (b) wife's signature acknowledged before notary
public, (c) employer receives written notice plus copy of assignment within 10 days of exe-
cution, (d) for fixed and definite amount, (e) for wages earned or wages to be earned within
30 days following assignment, (f) dated on date of execution. (Sees. 22-2-7-2-22-2-7-5,
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22-2-7-8) Assignment for payroll deductions null and void unless: (a) in writing signed
by employee and revocable at any time and consented to by employer, (b) delivery of
executed copy to employer plus written notice within 10 days of execution, (c) made for
purpose permitted by statute. (Secs. 22-2-7-5, 22-2-7-8, 22-2-6-2) Consumer Transactions:
Assignment of earnings taken by creditor from buyer, lessee or debtor as payment for or
as security for payment of claim arising out of a consumer credit sale, consumer lease,
consumer loan, or otherwise, is unenforceable by assignee and revocable by buyer,
lessee or debtor. An employee is not prohibited from making revocable authorization of
deductions from his earnings if otherwise permitted by law. (Secs. 24-4.5-2.410,
24-4.5-3-403, as added by Laws 1971, P. L. No. 366) A sale of unpaid earnings, if made in
consideration of payment of money to or for account of seller of earnings, is deemed a
loan secured by an assignment of earnings. (Sec. 24-4.5-3-403, as added by Laws 1971,
P. L. No. 366) [See UCCC ¶f5110, 5223.]
Payment Limitation-General: Assignments to wage brokers limited to part of
earned wages or wages to be earned within 30 days following date of assignment. (Sec.
22-2-7-2)
IOWA
References are to Code of Iowa, 1973, as amended
Coverage.-Assignment made by a head of a family. (Sec. 539.4) Consumer Credit
Transactions: Assignment securing consumer credit transaction. (Iowa ¶ 5175)
Requirements.-Ernployer should not pay an assignment made by a head of a family
unless: (a) the employer has agreed in writing to accept it, and (b) it is in writing, and
signed by both employee and spouse if employee is married. (Sec. 539.4) Consumer Credit
Transactions: Creditor may not take an assignment of earnings to secure a consumer
credit debt. Consumer th.ay authorize deductions if authorization is revocable, consumer
is given copy of authorization at time of signing, and the authorization contains on its
face a conspicuous notice of the consumer's right to revoke it. (Iowa ¶1 5175)
Payment Lirnitations.-No provisions.
KANSAS
NOTE: The Kansas Uniform Consumer Credit Code specifically prohibits the assign-
ment of earnings of a consumer for the payment or as security for the payment of a debt
arising out of a consumer credit transaction. Such assignment is unenforceable by the
assignee and revocable by the consumer. The restriction does not prohibit an employee
from authorizing deductions from his earnings if the authorization is revocable. (Kan. ¶ 5135)
KENTUCKY
References are to Kentucky Revised Statutes, as amended
Coverage.-Assignments of future wages given for less than $200 in money or in
goods and money. (Sec. 371.110) Petty Loan Company Act: Assignments given to
secure loans under the Act. (Ch. 288) Instalment Loan Law: Wage assignments to banks
and trust companies as security for instalment loan prohibited. (Sec. 287.215(5), as
amended by Laws 1972, Act 267; Laws 1974, S. B. 106.) Motor Vehicle Retail Instalment Sales
Act: Wage assignments invalid. (Ky ¶ 6102)
Requirements.-Assignment of future wages of less than $200 not valid unless: (a)
in writing subscribed by employee and has true date of signature and receipt of money,
(b) contains true statement of consideration, amount of money advanced, fees, maturity
date and schedule of payments, (c) gives full name and address of each assignee. (Sec.
371.110) Such assignment not valid against employer until lie places his acceptance in
writing on instrument. (Sec. 371.110) Petty Loan Company Act: Assignment not valid
unless loan exchanged simultaneously with execution. (Sec. 288.570(2))
Payment Limitations-Assignment on loans under $200 limited to 90 days from date
of execution. (Sec. 371.140) Petty Loan Company Act: Assignment limited to 10% of
wage payment. (Sec. 288.570(2))
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LOUISIANA
Rccr,::e.r arc to L')uLci(xna Rcziwd Statutes (1950), as a;ncndcd
Coverage-Assignments of future wages. (Sec. 23:731)
Requirements-Assignment of future wages not enforceable against employer untess
he has consented to it in writing. (Sec. 23:731)
Payment Limitations-None.
MAINE
Ref cr:rc:.r, unless otherwise indiaied, arc to Maine Revised Statutes Annotated (M. R. S. A.),
C c;;:cnc'cd
Coverage.-A11 assignments of wages. (26 M. R. S. A. Sec. 627) Consumer Credit Code:
A~s~cnt of wages as payment or security for debt arising from a consumer credit
tra~sac:ior:. (Me. C 51.c5) flame Retair Financing Act: \Vage assignment prohibited in
1:ome repair coutracts. (Me. r 6104)
Requirements-Assignment of wages r~ot valid against employer unless he has actual
notice. (3f~ M. R. S. A. Sec. 627) Consumer Credit Code: Creditor may not take an assign-
nient of wages as paymctit or security for~a consumer credit debt. Employee may make
revocable authorization for de(luctions from wages. (Me. ¶ 5155)
Payment Limitations-None.
MARYLAND
Ref ercr.ccs arc to Annotated Code of Maryland (1957), as amended
Coverage-Assignments of wages. (Art. 8, Sec. 6, as amended by Laws 1972, Ch. 181,
Sc::. 8. 10 c~:~ 11) Small Loan Law: Assignments of wages given to secure small loans.
(Art. ~SA, Sec. 19, as amne;:ded 1w Laws 1968, Ch. 439. Retail Instalment Sales Law: Assign-
ment of `.vages prohibited in instalment sales contracts. (Md. ¶ 6003)
Requirements-Assignment of wages not valid unless: (a) in writing, signed by
assignor and acknowledged in person by him before a notary public and entered the same
day on the docket of clerk of the District Court in the same county, (b) within 3 days of
execution and acknowledgement of the assignment, a copy of it plus certificates of
acknowledgement arc served upon employer, (c) if the assignor is married, the assignment
is also executed and acknowledged by assignor's spouse. (Art. 8, Sec. 6, as amended by
Laws 1972, (1z. 181, effective July 1, 1972) Assignor must make affidavit that he has not
and will not pay more than 6% interest per annum. (Art. 8, Sec. 8) Assignment for
usurious loan is void. (Art. 8, Sec. 10) Small Loan Law: Assignment given to secure
small loan forbidden licensees; other small loan lenders may not receive greater com-
pensation for wage assignment than permitted by law for small loan. (Art. 58A, Sees. 19,
21, as amended by Laws 1968, Ch. 439, effective July 1, 1968)
Payment Limitations-Assignment void unless limited to period of 6 months.
(Art. 8, Sec ii)
MASSACHUSETTS
References are to General Laws of Massachusetts, 1932, as amended
Coverage-Assignments of future wages given to secure loans of $3,000 or more.
(Ch. 154, Sees. 3, 4, 5) Loans under $3,000: Assignments of future wages given to
secure loans of less than $3,000. (Ch. 154, Sees. 2, 5) Retail Instalment Sales and Services
Law: Assignment of wages prohibited in retail instalment sale agreement. (Mass. ¶[ 6066)
Motor Vehicle Retail Instalment Sales: Assignment of wages unenforceable. (Mass. ¶ 6172)
Requirements-Assignment of future wages to secure loan of $3,000 or more not
valid unless: (a) made to secure a debt contracte(l prior to or simultaneously with the
execution of the assignment, (b) executed in writing in standard form prescribed by
Ch. 154, Sec. 5, and signed by assignor in person, (e) assignment states date of execution,
value in money furnished by assignee, and rate of interest, (d) employer accepts assign-
ment in writing, (a) if the assignor is a married man, time written consent of his wife
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is attached, (f) copy of assignment is delivered to assignor by assignee at date of its
execution. (Cli. 154, Secs. 3, 4) Employer not bound until receipt of written account
Containing statement of balance due, date and amount paid assignee, and whether
payment is for interest, principal or charge. (Ch. 154, Sec. 4) Loans under $3,000:
Assignment of future wages to secure loan of less than $3,000 not valid against em-
ployer: (a) until assignment accepted in writing by employer, nor until assignment and
acceptance of same have been filed an(l recorded with the city or town clerk, (b) unless
assignment is in form prescribed by Cli. 154, Sec. 5, (c)~ if made by married man unless
written consent of his wife is attached. (Ch. 154, Sec. 2) Assignment of wages to
secure a small loan requiring licensing of the lender must contain the amount of the loan,
rate of interest, and the expense of making and securing the loan. *(Ch. 140, Sec. 108)
Payment Limitations-Assignment of future wages to secure loan of $3,000 or more
limited to: (a) 25% of weekly earnings, (b) 2 years. (Ch: 154, Sec. 3) Loans under
$3,000: Assignment of future wages to secure loan of less than $3,000 limited to: (a) $10
per week, (b) one year. (Ch. 154, Sec. 2)
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MICHIGAN
References are to Compiled Laws of Michigan, 1948, as amended
Coverage.-Assjgnnient of future wages by employee, including governmental em-
ployees, filed in district or municipal court; inapplicable in city having common pleas
court. (Sec. 600.5301, as amended by Laws 1969, P. A. 341, approved December 19, 1969, effec-
tive January 1, 1970.) Court ordered assignments for child support. (Sec. 7l2A.18b, as
amended by Laws 1965, P. A. No. 172) Regulatory Loan Act of 1963: Assignments of wages
given tc secure loans made by small loan licensees. (Sec. 493.17) Retail Instalment Sales
Act: Assignment of wages prohibited. (Mich. ¶ 6327)
Requirements-Employer to pay over wages from time of receipt from court of
ratification of the employee-filed assignment proceedings. (Sec. 600.5301, as amended by
Laws 1969, P. A. 341) Court ordered assignment of wages for child support must be
honored by employer one week after service upon him of a copy of the order by personal
service or registered mail. (Sec. 7l2A.18b) Regulatory Loan Act of 1963: Assignment
collectible from employer from time that a verified copy of the assignment together with
verified statement of the amount unpaid on the loan and a copy of Sec. 493.17 is served
on the employer provided these requirements for validity are met: (a) amount borrowed
is paid simultaneously with execution of the assignment, (b) assignment is in writing,
signed in person by borrower, and if borrower is married, signed in person by spouse.
(Sec. 493.17)
Payment Limitations.-Assignment in court for creditor's benefit by employee who
is householder with family is subject to exemption of 60% per wage ~rning week, but not
less than $15 per week, plus $2 per week for each legal dependent, other than a spouse,
whc is under 18 or incapable oi self su~port because of physical or mental deficiency.
Assignment by employee not householder with family is subject to exemption of 40%
but not less than $10 per wage week. (Sec. 600.5311, a.s amended by Laws 1972, H. B. No.
5651, approved and effective February 19, 1972) Regulatory Loan Act of 1963: Assignment
limited to 10% of each wage payment. (Sec. 493.17)
MINNESOTA
References are to Minnesota Statutes, 1967, a.~ amended
Coverage-Assignments of future wages. (Secs. 181.04, 181.05, 181.06, amended by Laws
1957, 07:. 517) Lcar.s under $200: Assignments of future wages made to secure loans of
less than $200. (Sec. 151.07) Small Loan Law: Assignments of wages given to secure
small loans made by small loan licensees (Sec. 56.17) Consumer credit sales: Assignments
of wages prohibited in consumer credit sale contract or obligation. (Laws 1971, Ch. 275,
Sec. 2, subd. 2, ap~rovea Ma~ 14, 1971, effective July 1, 1971) [NoTE: Sec. 2, subd. 2 of the
1971 law appears at "Minnesota" ~ 6073.-CCH.J
Requirements-Assignment of future wages not enforceable unless: (a) written
notice plus a copy of the assignment is given to the employer within 3 days after its
making (Sec. 181.04), (b) the employer consents to the assignment in writing. (Sec.
181.05) Loans under $200: Assignment of future wages made to secure loans of less than
$200 invalid: (a) against employer until he accepts it in writing and the assignment and
acceptance of it have been filed with the clerk of the court, (b) if made by a married
man unless written consent of his wife is attached to assignment. (Sec. 181.07) Small
Loan Law: Assignment of wages not valid unless: (a) loan is paid to borrower simul-
taneously with its execution, (b) assignment is in writing, signed in person by both
spouses, (c) verified copy of the assignment plus verified statement of amount unpaid
on the loan plus printed copy of Sec. 56.17 is served on the employer. (Sec. 56.17)
Payment Limitations-Assignment void if for wages to be earned or to become due
more than 60 days from date of making, except as to the excess of the first $1,500 per
month where the assignment is for less than 5 years. (Sec. 181.06, as amended by Laws
1967, Cl;. 517, approved May 17, 1967, effective May 18, 1967) Small Loan Law: Assignment
limited to 10% of each wage payment. (Sec. 56.17)
MISSISSIPPI
References are to Mississippi Code of 1942, Annotated, as amended
Coverage.-Assignments of wages made to secure the purchases of goods. (Sec. 275)
Requirements-Assignment of wages made to secure purchase of goods not valid
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or binding on an employer unless, prior to the delivery of the goods or prior to the
consummation of the contract to purchase goods, the employer receives a copy of the
assignment and agrees in writing to its terms. (Sec. 275)
Payment Limitations-None.
MISSOURI
References are to Missouri Rt'viscd Statutes (1969), as a;ncnded
Coverage.-Assignments of earned wages. Assignments of future wages null and void.
(Sec. 432.030) Small Loan Law: Assignment of future wages given to secure small loan
prohil)ited. (Sec. 408.210)
Requirements-Assignment of earned wages must be in writing with date of assign.
ment, amount assigned and names of those assigning wages. (Sec. 432.030)
Payment Limitations-None.
MONTANA
References are to Revised Codes of Montana, 1947, as amended
Coverage.-Assignments of wages given to wage brokers (Secs. 41-15~, 41-1506,
41-1507); assignments of future wages given to wage brokers are invalid and unen-
forceable. (Sec. 41-1504) Consumer Loan Act: Assignments of wages given to secure
loans. (Sec. 47-220)
Requirements.-Assignment of wages given to a wage broker is not valid or en-
forceable unless: (a) it is for a fixed and definite part of earned wages, (b) the wife
consents to it by her signature, executed and acknowledged before a notary public,
(c) notice in writing of the assignment plus a copy of it is given to the employer within
one day after execution,. (d) the assignment is filed in the county clerk's office. (Sees.
41-1504, 41-1506, 41-1507) Consumer Loan Act: Assignment of wages is payable at the
option of the employer, but is not valid unless: (a) in writing, signed in person by the
borrower, or if the borrower is married, signed in person by both spouses, (b) there is
verified notice of default served on the employer, including a copy of the assignment,
statement of amount of loan and amount unpaid and a copy of Sec. 47-220. (Sec. 47-220)
Payment Limitations.-Consumer Loan Act: Assignment limited to 10% of each wage
payment. (Sec. 47-220)
NEBRASKA
References are to the Revised Statutes of Nebraska (1943), as a;nended
Coverage-Assignments of ~~`ages. (Sec. 36-213, as amended by Laws 1969, L. B. No.
864, Laws 1972, L. B. No. 781; Sec. 45-142, as amended by Laws 1972, L. B. No. 1060) Small
Loan Law: Assignments of wages given to secure instalment loan. (Sec. 45-144)
Requirements.-Assignment of wages of head of family void unless both spouses sign
and acknowledge it. The assignment must specify the employer who will pay the assigned
wages. (Sec. 36-213, as amendcd by Laws 1969, L. B. No. 864, Laws 1972, L. B. No. 781)
Small Loan Law: Assignment of wages made by one spouse to secure an instalment loan
not valid unless written consent of other spouse attached. (Sec. 45-144)
Payment Limitations.-Assignments limited to same extent as are garnishments
and an assignment in excess of the exemption is void
and unenforceable. (Sec. 36-613, as amended by Laws 1972, L. B. No. 781; Sec. 25-1558,
as amended by Law~ 1972, L. B. No. 1032, approved March 30, 1972, effective January 4, 1973)
[NOTE: The amendment to Sec. 25-1558 revised the garnishment exemptions and added
the provision making excess assignments void and unenforceable.-CCH.]
NEVADA
References are to Nevada Revised Statutes, as amended
Coverage.-An assignment of wages is void if made at the time that an unsatisfied
judgment exists against the maker. (Sec. 608.170) Instalment Loan and Finance Act:
An assignment of wages is not valid if given to a licensee as security for a loan under
the Act. (Sec. 675.340)
NEW HAMPSHIRE
References are to Revised New Hampshire Statutes Annotated, 1955, as amended
Coverage.-Protection of creditors in assignments of future wages. (Sec. 506:3)
Retail Instalment Sales of Motor Vehicles: Wage assignments in contracts prohibited.
(N. H. ¶6014)
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Requirements,-Assignment of future wages is not valid against creditors of the
person making the assignment unless: (a) it has been accepted by the employer in
wrIting, (b) the acceptance has been filed with the clerk of the town or city where
the party making it resides. (Sec. 506:3)
Payment Limitations.-None.
NEW JERSEY
Ref erences, uriess otherwise indicated, are to Revised Statutes of New Jersey (1937), as amended
Coverage.-Assignment of wages, salary, commissions, pay or other compensation
for services of employee, other than by court order, is prohibited, void and unenforceable.
Person withholding, paying or receiving salary, wages, commissions or other compensation
in violation of the prohibition is liable to employee for amount so paid or taken. Violation
or attempted violation may lead to punishment as a disorderly person. (Laws 1971, Ch.
412, as anu-ried by Laws 1973, Ch. 354, approved and effective December 28, 1973.) Home
Repair F&iar.cir.g Act: Assignments of wages prohibited. (N. J. ¶ 6067) Retail Instalment
Sales Act: Assignments of wages prohibited, void and unenforceable in connection with
retail instalment contract, retail charge aécount or in separate instrument. (N. J. ¶6039)
Usurious loar_s: Assignments of wages to secure usurious loans prohibited (Sec. 34:11-25),
except for the full payment of goods sold to the assignor or for professional services
rendered to him. (Sec. 34:11-26)
Requirements.-None.
Payment Limitations.-None.
NEW MEXICO
References are to New Me.rico Statutes, 1953, Annotated, as amended
Coverage-Assignments of wages or salaries due or to become due. (Sec. 43-1-12,
as avier.ded by Laws 1971, Ch. 172) Small Loan Act of 1955: Assignments of wages given
to secure small IQans made by small loan licensees. (Sec. 48-17-49) Retail Instalment Sales
Act: Assignments of wages prohibited. (N. M. ¶ 6019)
Requirements.-Assignment of wages not valid unless: (a) acknowledged by the
maker before a notary public, (b) if the maker is married and living with his wife, the
assignment is recorded in the office of the county clerk and a copy of the recorded
assignment is served on the employer. (Sec. 43-1-12, as amended by Laws 1971, CJz. 172)
Small Loan Act of 1955: In addition, an assignment given to secure a small loan is not
valid unless: (a) loan is paid simultaneously with execution of assignment, (b) it is
signed in person by the borrower, or if borrower is married, by both spouses. (Sec.
48-17-49)
Payment Limitations.-Any assignment providing for assignment of over 25% of
assignor's disposable earnings for any pay period is void; "disposable earnings" is wages
or salary remaining after deduction required by law. (Sec. 43-1-12, as amended by Laws
1971, Ch. 172, approved March 30, 1971, effective June 18, 1971) Small Loan Act of 1955:
Assignment limited to 10% of each wage payment. (Sec. 48-17-49)
NEW YORK
References are to Consolidated Laws of New York, as amended
Coverage.-Assignments of future earnings. (Personal Property Law, Secs. 46-e,
as amended by Laws 1974, Ch. 753; 46-f, 47, 48, as amended by Laws 1974, Ch. 753;
48-a; 48-b, as amended by Laws 1974, Ch. 981; General Obligations Law, Sec. 5-531.)
Indebtedness under $1,000: Assignments of future earnings given to secure indebtedness
of less than $1,000. (Personal Property~ Law, Secs. 46-c, 48-a(2)). Small Loan Law:
Assignments of wages given to secure small loans by small loan licensees. (Banking
Law, Sec. 335, as amended by Laws 1969, Cli. 1152; Laws 1973, Ch. 920; and Sec. 356,
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as amended by Laws 1974, C/s. 981.) Retail Mstalment Sales Act: Assignments of wages
prohibited. (N. Y. ~~19(c)) Motor Vehicle Retail Instalment Sales Act: Assignments
of wages prohibited. (N. Y. ¶[6071)
Requirements.-Assignment of future earning not valid unless executed by assignor
and a copy of the assignment and of the attached papers of any other papers executed
and described in assignment are delivered to assignor. (Personal Property Law, Sec. 46-c,
as amended by Laws 1974, C/s. 753.) Assignment given to secure loan carrying over
18% interest is void except for loans on which there are brokerage charges or for loans
made by licensed lenders. (Personal Property Law, Sec. 46f; General Obligations
Law, Sec. 5-531; Banking Law, Sec. 356, as amended by Laws 1974, Ch. 981.) Em-
ployer's obligation on assignment of future wages does not commence until authenticated
copy of assignment plus statement of amount then due are filed with the employer.
Statement must include dates and amounts of previous payments, and if filed with the
county clerk, the statement must contain the date on which the assignment was filed
with the employer. A copy of the assignment must be filed with the county clerk
before a copy is filed with employer, with the exception of assignments given either
as security for or as a method of repayment of money advanced by any bank, trust
company or credit union. But before an assignment can be filed with the employer, the
employee must be given 20 days' notice in writing by certified mail, return receipt requested,
to the employee's last known address. If this is returned undelivered, it may be mailed
to the employee at his place of employment or served in the same manner as a summons.
The notification must be accompanied by a written notice, as specified by law, advising
the employee that, if he has a defense to the assignment, he may institute court action
or he may notify the assignee of the defense; if so notified, the assignee cannot file the
assignment with the employer until it obtains a court order authorizing the filing. The
employee must be given 8 days' written notice, by certified mail, of the application for such
a court order. (Personal Property Law, Secs. 47; 48, as amendcd by Laws 1974, C/s. 753,
approved June 7, 1974, effective September 1, 1974; 48-a; 49, as amended by Laws 1974, 5. B.
8844.) [NOTE: The 1974 law added the requirement of notifying the employee of his
rights and increased the notification period before an assignment can be filed with an
employer from 10 days to 20 days.-CCH.] Indebtedness under $1,000: Assignment of
future earnings given to secure an indebtedness of less than $1,000 not valid unless: (a)
assignment is separate instrument printed in at least 8 point type and has the following
title in 10 point or larger: "Assignment of wages, Salary, Commissions or other Compen-
sation for Services," and has the following in 10 point or larger just above the place for
signature: "This is an Assignment of Wages, Salary, Commissions or other Compensa-
tion for Services," (b) assignment is clear as to transaction to which it relates and is clear
as to indebtedness secured by, or consideration given for the assignment, and the date
and place at which payments are to be made, and contains a summary of Sees. 46-c, 46-c,
46-f, 47-c, 48, 48-a, 48-b, 48-c and 49 of the Personal Property Law, and (c) assignment,
if given as security, is security only for the transaction, or series of transactions described
in the assignment, but: (1) an assignment securing a guarantee of the payment of purchase
price of goods ($1,500 or less) sold for noncommercial use is valid if assignment limited
to 2 years and if assignment sets forth maximum amount for which guarantor shall be
liable, and (2) an assignment of future earnings for the purchase of goods ($1,500 or less)
for a noncommercial use is valid if executed by a guarantor or two or more purchasers
unless purchased for common use of assignor and purchaser or co-purchaser. (Personal
Property Law, Sec. 46-c, as amended by Laws 1974, Cli. 767, approved June 7, 1974, effective
September 1, 1974.) [Nom: The 1974 law added the requirement that a sum.mary of
Personal Property Law Sec. 47-c be included in the assignment instrument.-CCH.}
Small Loan Law: Assignment of earned or future wages given to secure small loan of
licensed lender not valid unless: (a) loan is paid simultaneously with execution of assign-
ment, (b) assignment is in writing signed by borrower and spouse if married, and (c) employer
receives verified copy of assignment and verified statement of unpaid amount. (Banking
Law, Sec. 356, as amended by Laws 1974, C/s. 981.)
Payment Limitations-Future earnings may not he withheld by reason of an assign-
ment unless earnings exceed $85 per week. (Personal Property Law, Sec. 48-b, as amended
by Laws 1974, Cli. 981, approved June 13, 1974, effective September 1, 1974.) [NoTE: Until
September 1, 1974, future earnings may not he withheld unless they amount to $30 per
week if employee is employed in a city of 250,000 or more, and to $25 per week if the
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employee is employed elsewhere.-CCH.] Assignment of wages cannot be honored while
employee is, or would need to be, receiving public assistance or care supplemental to
income. (Social Welfare Law, Sec. 137-a) Indebtedness under $1,000: Assignment of
future earnings given to secure an indebtedness of less than $1,000 limited to 10% of each
month's wages. (Personal Property Law, Sec. 48-2(a)) Small Loan Law: Assignment
of future wages limited to 10% of each wage payment, but assignment not collectable
unless wages exceed $85 per week. (Banking Law, Sec. 356, as amended by Laws 1974, Cli.
981, approved June 13, 1974, effective September 1, 1974.) [NoTE: The 1974 law added the
$85 limitation.-CCH.]
Discharge of Employee.-Disch.arge or layoff prohibited; employer liable to civil
act:on, within 90 days, for damages up to 6 weeks of lost wages; reinstatement may be
o:dered. (Civil Practice Law and Rules, Sec. 5252, as amended by Laws 1969, Cli. 1138;
Lows 1974, Cli. 753, approved Juiis 7, 1974, `effective September 1, 1974; Laws 1974, Cli. 981.)
[Yore: The 1974 law made the discharge prohibition applicable to wage assignments.-
CCH.]
NORTH CAROLINA
References are to General Statutes of North Carolina, as amended
Coverage-Assignments of future wa~ges. (Sec. 95-31) Small Loan Law: Assignment
of wages as payment or as security for a~ loan unenforceable and revocable by borrower.
(Sec. 53-180, as anzer.ded by Laws 1974, Cli. 1042, ratified March 26, 1974, effective May 25,
1974.) [YorE: The 1974 law added the prohibition.-CCH.J
Requirements-Employer not bound by assignment of future wages until he has
accepted it and agreed in writing to pay it. (Sec. 95-31)
Payment Limitations-Action based upon assignment of future wages must be
commenced within 6 months from date of execution. (Sec. 1-55)
NORTH DAKOTA
References are to the North Dakota Century code, Annotated, as amended
Coverage.-Small Loan Law: Assignments of future wages to secure small loans
are void and uncollectible. (Secs. 13-03-17, 13-03-22) Retail Instalment Saks Act:
Assignrner.ts of wages prohibited. (N. D. ¶t 6014)
OHIO
References are to Ohio Revised Code, as amended
Coverage.-With two exceptions, assignments of wages are invalid. (Secs. 1321.31,
1321.32)
Requirements.-Assignments of wages generally are invalid, except that (a) wage
assignments for the support of a spouse, and (b) wage assignments for the support of a
minor child, are valid if made in compliance with a court order, and if in writing with
the consent of both spouses. (Secs. 1321.31, 1321.32, 1321.33)
Payment Limitations.-Assignment for the support of a spouse limited to 25% of an
employee's wages. (Sec. 1321.31)
OKLAHOMA
References are to Laws 1969, H. B. No. 1001 (Oklahoma Uniform Consumer Credit Code~.
c;~roved May 8, 1969, effective July 1, 1969
Coverage.-Assignments of earnings in connection with consumer credit sales, con-
sumer leases and consumer loans. (Secs. 2.410, 3.403) [NcrrE: See UCCC ¶ 5110, 5223 for
full text.-CCH]
Requirements.-Assignment of earnings taken by creditor from a buyer, lessee or
debtor as payment for or as security for payment of a debt arising out of a consumer
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credit transaction is unenforceable by the assignee and revocable by the buyer, lessee or
debtor. An employee is not prohibited from making a revocable authorization of deduc-
tions from his earnings. (Secs. 2.410, 3.403) A sale of unpaid earnings, if made in con-
sid~ration of payment of money to or for the account of the seller of the earnings, is
deemed a loan secured by an assignment of earnings. (Sec. 3.403) [NOTE: See UCCC
¶ 5110, 5223 for full text of Sees. 2.410, 3.403.-CCH.]
Payment limitatioris.-No provisions.
OREGON
References are to Oregon Revised Statutes, u.s amended
Coverage-Consumer Finance Act: Assignments of earnings given as payment of or as
security for payment of small loan prohibited, unenforceable and revocable by assignor. Sale of
unpaid earnings as consideration for payment of money to or for account of seller of earnings is
considered loan secured by assignment of earnings. Revocable authorizations of earnings
deductions are not prohibited. (Sec. 725.355) Motor Vehicle Retail Instalment Sales Act:
Assignments of wages prohibited. (Ore. ¶6051) Retail Instalment Sales: Assignments
of wages invalid. (Ore. ¶6015)
Requirements-No provisions.
Payment Limitations-No provisions.
PENNSYLVANIA
References are to Purdon's Pennsylvania Statutes Annotated, as amended
Coverage.-Assignments of future wages. (Sec. 43:271, held invalid, Showalter v.
Ehlan 5 Pa. Super. 242, 1897; Secs. 43:273, 43:274 held invalid, Foster's Application, 23 Dist.
558, 1914) Small Loan' Law: Assignments of wages made to secure small loans ($600
or less) made by small loan licensees. (Sec. 7-759)
Requirernents.-These provisions governing assignments have been held unconstitu-
tional (Foster's Application, 23 Dist. 558, 1914): (a) assignments of future wages of married
man invalid unless wife's written consent attached (Sec. 43:274), and (b) assignments
of future wages to secure loan invalid unless accepted in writing by employer. (Sec. 43 :273)
Payment Limitations.-None.
PUERTO RICO
References are to Laws of Puerto Rico Annotated, as amended
Coverage.-Except for payroll deductions permitted by statute, an employer may not
deduct wages due to an employee in order to pay the same to any other person. (29
L. P. R. A. Sec. 175)
RHODE ISLAND
References are to General Laws of Rhode Island, 1956, as amended
Coverage.-Assignments of future wages. (Sec. 28-15-2) Small Loan Law: Assign-
ment of wages given to secure small loans made l)y small loan licensees. (Secs. 19-25-32,
19-25-33, 19-25-34)
Requirements-Assignment of future wages not valid unless: (a) made to secure
a debt prior to or simultaneously with execution of the assignment, (b) executed in
writing in statutory standard form prescribed by Sec. 28-15-3, (c) signed by assignor in
person, (d) assignment states true date of execution, the value in money furnished, and
the rate of interest, (e) copy delivered to assignor at date of execution. (Sees. 28-15-2,
28-15-3, 28-15-4, 28-15-6) Assignment of future wages not binding upon employer until
a copy of it which conforms to the following requirements is delivered to the employer:
It must be in writing and contain a statement of balance due, and if the sums of money
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received by assignee together with dates of past payments and a statement showing
whether pavntent is a charge or not. (Sec. 28-15-6) Small Loan Law: Assignment of wages
given to secure small loan not valid unless: (a) loan paid to borrower simultaneously with
execution of assignment, (b) assignment is in writing, signed by borrower and if borrower
Es rrar:-ied, sioned by both spouses. (Sec. 19-25-33) In order to collect on wage assign-
men:, a veri~ed copy of the assignment, together with a verified statement of the amount
unpaid o- loan and a printed copy of theantall loan law provisions setting forth require-
nens ~O:- wage assignments, must be served upon the employer. (Sec. 19-25-34)
Payment Limitations-Assignment ~f future wages limited to period of one year
from date of assignment. Small Loan L~-zzv: Assignment limited to 10% of each wage
payment. (Sec. 19-25-34)
SOUTH CAROLINA
Ref ere,:ccs, unless otherwise indicated, are to Code of Laws of South Carolina (1962), as
ar.sodcd
Cove~ge.-A ssignments of wages. (sec. 40-103) Con~i;iter Protection Code: Assign-
men:s securing consumer credit transaction. (S. C. ~ 5110, 5183)
Requirements-Employer not bound by assignment of wages unless he consents to
it En v.-riting. (Sec. 40-103) Consumer Protcctlon Code: Creditor may not take an assign-
ment of earnings to secure a consumer credit debt. Consumer may authorize deductions
if authorization is revocable. (S. C. ~ 5110, 5183)
Payment Limitations-None.
- SOUTH DAKOTA
R~:e~rces ore to So:itl; Dakota Compiled Laws, 1967, as amended
Coverage.-Sn:c!l Loon and Consumer Finance Law: Assignment of wages given to
secure loans under Act. (Sees. 54-6-23-54-6-25)
Requirements-Stool! Loan cnd Consumer Finance Law: Assignment to secure a small
loan no: binding on employer until service on the employer of a verified notice which
contains: (a) correct copy of assignment, (b) statement of amount of loan and amount
due and unpaid on loan, (c) a copy of Sec. 54-6-23 through 54-6-25. (Sec. 54-6-25) Notice
is to be given to employer only after default and the employer has the option of accept-
ing and honoring assignment. (See. 54-6-25)
Payment Limitations-Small Loan and Consumer Finance Law: Assignment limited
to: (a) 10% of each wage payment, (b)~ period of 24 months for loans of $1,000 or less,
(c) petiod of 36 months for loans of more than $1,000. (Secs. 54-6-20, 54-6-24)
TENNESSEE
References are to Tennessee Code Annotat~d, as amended
Coverage-Assignments of fttture wages. (Sec. 50-315)
Requirements_Employer not chargeable on assignment of future wages unless the
employer assents to it in writing at the time of its execution. (Sec. 50-315)
Payment Limitations-None.
.449 Validity of withholdings-A mer- consent to assignment by the debtor's em-
chant who collected earnings on wage assign' ployer, and amounts which deprived the
mnents was required to return amounts col- (lebtor of his $50 per week exemption from
lected from earnings after the debtor's execution as the ltead of a family-he the
;o:Etion in bankruptcy, amounts from future Matter of Crawford (DC Tenn. 1969) CoN-
earnings for which there was no written SUMER CREDIT GUtDE ¶ 99,817.
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TEXAS
References are to Vernon's Texas Statutes Annotated, as amended.
Coverage.-_Assigrm,ents of future wages (Civil Stat., Title 83, Ch. 3, Art. 5159c, Sec. 1)
Regulated Loans and Instalment Loans: No licensee may take an assignment of wages as
security for a small loan and no lender may take an assignment of wages as security for an
instalment loan. (T. 79, Ch. 3, Art. 3.20(1) and Ch. 4, Art. 4.04(1), as added by Laws 1967,
H. B. No. 452, aPproved May 23, 1967, effective October 1, 1q67) Retail Instai;nent Sales, Motor
Vehicle Instalment Sales, Insurance Premium Financing Agreements: Instalment contracts,
charge agreements and premium financing agreements may not contain an assignment of
wages. (T. 79, Ch. 6, Art. 6.05(1), and Ch. 7, Art. 7.07(2), as added by Laws 1967, H. B. No.
452; T. 79, Ch. 12, Art. 12.19(5), as added by Laws 1973, H. B. No. 543, effective August
27, 1973)
Requirements_Action cannot be brought against an employer upon an assignment
of future wages unless the employer has had written notice of the assignment immediately
after execution. (Civil Stat., Title 83, Ch. 3, Art. 5159c, Sec. 1)
Payment Limitat.ions.-_None.
UTAH
References are to Laws 1969, Ch. 18 (Utah Uniform Consumer Credit Code), apprcn~ed March
20, 1969, effective July 1, 1969
Cove~age.-Assignments of earnings in connection with consumer credit sales, con-
sumer leases and consumer loans. (Secs. 2.410, 3.403) [NOTE: See UCCC 115110, 5223
for full text.-CCH.J
Requirements_Assignment of earnings taken by creditor from a buyer, lessee or
debtor as payment for or as security for payment of a debt arising out of a consumer
credit transaction is unenforceable by the assignee and revocable by the buyer, lessee
or debtor. An employee is not prohibited from making a revocable authorization of
deductions from his earnings. (Secs. 2.410, 3.403) A sale of unpaid earnings, if made
in consideration of payment of money to or for the account of the seller of the earnings,
is deemed a loan secured by an assignment of earnings. (Sec. 3.403) [NoTE: See UCCC
115110, 5223 for full text of Secs. 2.410, 3.403.-CCH.]
Payment Limitations.-No provisions.
VERMONT
References are to Vermont Statutes Annotated, as amended
Coverage.~Assignment5 of future earnings. (T. 12, Sec. 3022) Small Loan Law:
Assignments of wages given to secure small loans made by small loan companies. (T. 8,
Sec. 2227, as amended by Laws 1970, Act No. 243.)
Requirements........Ai~ assignment of future earnings is not valid against trustee process
(garnishment-type proceeding) unless (a) executed in writing securing debt in stated
amount, (b) contracted prior to or simultaneously with execution, or (c) is a debt for
necessaries, and (d) is properly recorded. (T. 12, Sec. 3022) Steal! Loan Law: Assign-
ment to secure small loan not valid unless: (a) loan made simultaneously with execution
of assignment, (b) assignment in writing, signed personally by borrower, or if borrower
is married, signed in person by both borrower and wife. (T. 8, Sec. 2228) Assignment
to secure small loan not effective against employer until verified copy of the assignment
served on him. (T. 8, Sec. 2229) Consumer Fraud: Assignment of wages by Consumer in
a contract is void. (T. 9, Sec. 2456, as amended by Laws 1969, H. B. No. 118, Lriw without
3p~roval April 4, 1969, effective July 1, 1969.)
Payment Limitations-Small Loan Law: Assignment limited to 10% of each wage
payment. (T. 8, Sec. 2229) Trustee Process Law-Upon attachment of compensation, em-
ployer must accept assignment up to 10% of compensation. (T. 12, Sec. 3166, as added by
Laws 1968, H. B. No. 518, approved March 22, 1968, effective July 1, 1968.)
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VIRGINIA
Ref erer.ces are to Code of Virginia, 1950, as amended
Coverage.-Partial assignments of wages are not enforceable, but an assignment of
all wages over and above those exempted is not considered a partial assignment for pur-
poses oi this limitation. (Sec. 40.1-32) Small Loan Act: Assignments of future wages given
to secure small loans made by small loan licensees. (Sec. 6.1-290)
Requirements-Assignments of wages due or to become due which do not conform
to the following requirements are not valid and enforceable against an employer unless
he expressly consents in writing: (a) assignment must be printed in type not smaller
than pica, be a separate instrument not a part of any other instrument and be plainly
designated "Wage Assignment", (b) assignment must be executed in triplicate, and in
person, dated with date of execution, with one executed copy delivered to assignor and
one mailed tc employer named in it within 15 days after execution, (c) name of employer
must have been written in assignment before it was signed, and amount to be secured
must be stated, (d) employee at time of execution must be employed by employer named
in assignment, (e) notice of intent to enforce assignment must be served by person
authorized to serve civii process. (Sec. 40.1-31) Small Loan Act: The following additional
requirements must also be met before an assignment given to secure a small loan is valid:
(a) lcan must have been exchanged simultaneously with execution, (b) assignment must
be in writing, signed in person by borrower, or if borrower is married, must be signed by
both spouses, (c) verified written copy of assignment, together with a similarly verified
statement of amount unpaid and a printed copy of statutory requirements for assignments
must be served on employer. (Secs. 6.1-289, 6.1-290)
Payment Liinitations.-Assignments, other than those made to secure small loans,
are limited to the lesser of (1) 25% of disposable earnings for week or (2) disposable
earnings in work week exceeding 30 times the federal minimum hourly wage (or an
equivalent multiple for other work periods). Disposable earnings are earnings remaining
after deduction recuired by law. Assignments in excess of the limit are void and unen-
forceable. (Sec. 34-29, as cmer.dcd by Lou's 1970, Ch. 428) Small Loan Act: Assignment
limited to 10% of each wage payment. (Sec. 6.1-290)
WASHINGTON~
References are to Revised Code of Washington, as amended
Coverage.-Assignrnents of future wages given to secure loans of less than $300.
(Secs. 49.48.090, 49.48.100.)
Requirements.-Assignment not valid against employee unless the assignment is
accepted in writing by the employer, and it and its acceptance are filed and recorded
~`ith the proper county auditor; nor, if made by a married man, unless the written consent
of his wife is attached to the assignment. (Secs. 49.48.090, 49.48.100)
Payment Limitations.-None.
.10 Employer as wage assignee-An assignment with the county recorder, al-
employer who advances credit to an em- though he must obtain the wife's written
ployee may be authorized by the employee consent when the employee is a married
pursuant to a written agreement to deduct man-Opinion of Attorney Genera,! of Wash-
sums of money from the employee's wages, ington (May 16, 1968). CCH CONSUMER
but he is not required to record a wage CREDIT GUIDE ¶ 97,682.
WEST VIRGINIA
References, unless otherwise indicated, are to Code of West Virginia 1931, as amended, and
West Virginia Code
Coverage.-Assignments of future wages. (Sec. 21-5-3)
Requirements.-Assignment for future wages not valid unless: (a) it is acknowledged
before a notary public by the employee making it, (b) it specifies the total amount due
and collectible under it and contains a statement that three-fourths of the employee's
periodical earnings are exempt, (c) the employer's written acceptance is endorsed on the
assignment, (d) made for one year or less. (Sec. 21.~5-3) All assignments revocable by
`Chapter 74.20A (Support of Dependent Children). Alternative method provides that a debtor may
execute a wage assignment as part of an appr ved plan with the secretary to satisfy or retire a support
obligation resulting from the payment of public assistance money for the benefit of any dependent child.
(See Chapter III, Part 2)
51-207 0 - 75 -- 15
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employee at will. (\V. Va. ¶J 5&46) Consu;ncr Credit Act: Supervised lenders prohibited
from taking assignment of wages as security for loan. (~V. Va. ¶[ ~l29)
Payment Limitations.-Assignment of future wages limited to: (a) 25% of each wage
payment, (b) one year from date of the assignment. (Sec. 21-5-3) Consumer Credit Act:
Assignment of wages to pay consumer credit transaction limited to 25% of disposable
earnings for week. (\V. Va. ¶1 5046)
WISCONSIN
References are to 1f'isconsin Statutes, 1971, as amended
Coverage._-Assignments of wages to secure loans by state or national banks, savings
and loan associations, and credit unions (Sec. 241.09, as amended by Laws 1973, Ch. 255),
assignments in connection with proceedings by wage earners for amortization of debts
(Sec. 128.21) and assignments for support of minor children in actions for support of
dependents and actions affecting marriage. (Sees. 52.055(2m), 247.265)
Requirements.-No assignment of the wages of any person is valid unless the assign-
ment is in writing signed by the person's spouse, and the spouse's signature is witnessed
by two disinterested witnesses. (Sec. 241.09, as amended by Laws 1973, Ch. 255, approved
May 13, 1974, effective June 12, 1974.) Court ordered assignment for child support in action
for support of dependents must be honored by employer one week after service of copy
of order by personal service or registered or certified mail. (Sec. 52.055(2m)) Court
ordered assignment of wages of either parent for support of wife, dependents, or both,
in action affecting marriage must be honored by employer one weel< after service of copy
of order by personal service or registered or certified mail. (Sec. 247.265)
Payment Limitations.-Assignments not valid as to wages accruing more than six
months after the making of the assignment. Assignment of wages for amortization of
debts is limited to the period during which the amortization proceedings are in effect.
(Sec. 241.09)
Discharge of Employee.-Discharge for assignment ordered in action for support of
dependents or in action affecting marriage prohibited. (Sees. 52.055(2m), 247265)
WYOMING
References, unless otherwise indicated, are to Wyo;ning Statutes, 1957, as amended
Coverage.-Cansu;ner transactions: Assignments of earnings in connection with con-
sumer credit sales, consumer leases and consumer loans. (Sees. 40-2-410, 40-3-403) [NoTE:
See UCCC ¶fSllO, 5223 for full text.-CCH.] Loan.s under $200: Assignments of future
~~`ages given to secure loans of less than $200 (except assignments given to secure loans
made by banks). (Secs. 27-201, 27-202, 27-203)
Requirements.-.Constimer transactions: Assignment of earnings taken by creditor
from buyer, lessee or debtor as payment for or as security for payment of debt arising out
of consumer credit transaction is unenforceable by assignee and revocable by buyer, lessee
or debtor. Employee is not prohibited from making a revocable authorization of deduc-
tions, from his earnings. Further, notwithstanding above prohibition, seller, lessor or
lender may take assignment of commissions of accounts receivable payable to buyer,
lessee or debtor for services rendered for payment or as security for payment of debt
arising out of consumer lease or loan. (Sees. 40-2-410, 40-3-403). A sale of unpaid earn-
ings, if made in consideration of payment of money to or for account of seller of earnings,
is deemed loan secured by an assignment of earnings. (Sec. 40-3-403) [NOTE: See UCCC
¶ 5110, 5223 for full text.-CCH.] Loans under $200: Assignment not valid against em-
ployer until it is accepted in writing by employer and the assignment and its acceptance
have been filed and recorded; nor is assignment valid if made by married man unless
written consent of his wife is attached to the assignment. (Sees. 27-201, 27-202)
Payment Limitations.-None.
PAGENO="0219"
IV. ESTABLISHMENT OF PATERNITY
PAGENO="0220"
PAGENO="0221"
Establishment of Paternity
CONTENTS
Page
A. The Law of Illegitimacy 217
B. The Iniform Parentage Act_ 249
(213)
PAGENO="0222"
PAGENO="0223"
IV. Establishment of Paternity
In recent years there has been a steady growth in the number of
children on the AFDC rolls who were born out of wedlock and for
whom paternity support is not being provided because the identity of
the father has not been determined. Children whose parents have never
married present a serious problem of support and care. At common law
such a child was a "son of nobody" and neither parent could be held
responsible for it. The original laws imposing support of the child on a
parent were enacted solely to prevent the community from having the
child as a public charge.
Basically the families in which~ the father is absent from the home
represent situations in which the marriage has broken up or in which
the father and mother never married in the first place. In 1961, this
category of cases represented 66.7 percent of the total AFDC case-
load and has increased steadily to 83 percent in 1973.
In examining the situation more closely, one finds that the largest
stngle factor accounting for the increase in the AFDC rolls is ille-
gitimacy. In 21.3 percent of the families receiving AFDC in 1961, the
mother was not married to the father of the child. But in New York
and New Jersey, the two States with the highest AFDC payment
levels, the percentages of absent fathers not married to the mother were
.30.5 percent and 33.1 percent, respectively; and of all States, Illinois
had the largest percentage-34 percent-of families receiving AFDC
in which the absent father was not married to the mother.
This 21.3 percent grew to 27.9 percent by 1969 and to 34.7 percent
in 1973. However, in New York, the 1973 percentage was 39.4 percent
and in New Jersey 36.5 percent; and of all States, Alabama had the
largest percentage-54.1 percent-of families receiving AFDC in
which the father was not married to the mother. Thus, in the span of
only 12 years, from 1961 to 1973, the percentage of families receiving
AFDC in which the mother was not married to the father of the child
increased by 62.9 percent. Applying the 34.7 percent to the January
1975 caseload, 3.9 million AFDC recipients today are found in families
where the father is not married to the mother.
According to the 1973 survey, there were one or more illegitimate
children in 1,364,255 families, or 45.6 percent of the total AFDC
families. There were 757,613 families, or 25.3 percent of the 2,989,891
families in the 1973 AFDC survey, with one illegitimate child and
323,911 families, or 10.8 percent of the total AFDC families, with two
illegitimate children. The number of families with six or more illegiti-
mate children was 35,091, or 1.2 percent of the total AFDC families.
There were 832 families with ten or more illegitimate children. The
median number of illegitimate children in AFDC families with illegit-
imate children was one child (see table 1).
In 1961, there were 645,000 children, or 24.3 percent of the 2,658,525
children in the 1961 AFDC survey, who were illegitimate. But in the
(215)
PAGENO="0224"
216
District of Columbia the percentage of illegitimate children on the
AFDC rolls was 40.9 percent; in New York the percentage was 35 per-
cent; and in New Jersey 36.4 percent of the AFDC children were il-
legitimate (see table 2).
In 1973, there were 2,529,846 children, or 32.7 percent of the 7,724,-
938 children in the AFDC survey, who were illegitimate, an increase
of 292 percent in the number of illegitimate children receiving AFDC
in just 12 years. No valid sample on the number of illegitimate chil-
dren was received from the District of Columbia in the 1973 survey.
In New York there were 349,946 illegitimate children receiving
AFDC, or 38.1 percent of the 917,679 children on the AFDC rolls in
1973, an increase of 298 percent in 12 years in the number of illegiti-
mate children receiving AFDC. In New Jersey, there were 105,009 il-
legitimate children receiving AFDC, or 35.4 percent of the 296,521
children on the rolls in 1973, an increase of 449 percent in the number
of illegitimate children receiving AFDC in 12 years. For the 12-year
period, 1961 to 1973, Georgia had the largest percentage increase-
1,895 percent-of all the reporting States, in the number of illegiti-
mate children receiving AFDC (see table 2).
In 1961, 6 percent of the children born in the United States were il-
legitimate. The white illegitimate births were 2.5 percent of the total
white births and the nonwhite illegitimate births were 23.7 percent of
the total nonwhite births.
In 1973, 13.3 percent of the children born in the United States were
illegitimate. Of the total white children born in 1973, 6.2 percent were
illegitimate, and 42.6 percent of the total nonwhite children were ii-
illegitimate.
There was a 121.7 percent increase in the number of illegitimate chil-
dren as a percent to total children born in the 12-year period, 1961 to
1973.
This chapter provides data on laws of the various States regarding
establishment of paternity as they were in 1971 and brings the data
up to date. It also describes various methods being used in ascertaining
the paternity of the child.
State statutes for ascertainment of paternity are listed in appendix
PAGENO="0225"
A. The Law Of Illegitimacy
(Excerpts from Illegitimacy: Law and Social Policy, by Professor Harry D.
Krause)5
"It might perhaps be mentioned that the Decalog,
which is the basis of our moral code, specifically states
that the sins of the father may be visited upon the
children unto the third and fourth generation, so that the
argument against making the children suffer for the
mother's wrong can be attacked on ethical grounds.~~**
Legislative attack on the common law doctrine of fihius nulliv~s has
taken several directions. All States have legislation that reduces on
a "retail" basis the instances in which a child is born out of wedlock
by the expedient of expanding the, definition of "wedlock" or by per-
mitting legitimation after the child's birth. These "definitional"
statutes have provided unqualified relief from illegitimacy to many
children who otherwise would or might have been illegitimate.' At the
logical extreme. a "definitional" statute could abolish illegitimacy
"wholesale"-simply by providing that children born out of wedlock
have the same legal rights against their parents as are enjoyed by
legitimate children. This solution has been tried in several States.2
Many children, however, stay illegitimate. The facts of their cases
do not admit legitimation. To help these children, most States have
enacted statutes which seek to overcome part of the burden of illegiti-
macy by granting specific legal rights, in the areas of support,
inheritance and concerning several other aspects of the legitimate
parent-child relationship.
Problems arise with respect to both classes of children when there is
a `conflict of laws." This is a frequent occurrence within the multitude
of closely related but independent legal systems that make up the
United States. For example, great population mobility makes the fol-
lowing question possible: "What are the rights of a child born out of
wedlock under the laws of State No. 1, who now lives in State No. 2
which gives no legal relevance to illegitimacy, and who seeks to inherit
from his father who died without a will, if the father was domiciled in
State No. 3 which denies illegitimates any right to inherit from their
fathers, died in State No. 4 which allows an illegitimate child to in-
herit if his paternity was established by court action during the
father's lifetime, and left realty and personal property in all four
States?" Similar questions arise concerning rights of support. Another
**Judge Young In In re Dake 180 N.E.2d 646, 649 (Juv. Ct., Huron Co., Ohio 1961).
1 In very rare instances, legitimation has not been accepted as the full equivalent of
legitimacy, Pfelfer v. WrIght, 41 F.2d 464 (10th dr. 1930) which held a child legitimated
in Kansas was not permitted to inherit under Oklahoma law; In re Crowell's Estate, 124
Me. 71, 126 A. 178 (1924), recognizing a distinction between legitimation and capacity
to inherit; Cf. In re Garcia's Estate, 34 Cal. 2d 419, 210 P.2d 841 (1949).
2 See Appendix A, infra p. 241.
5dopyright (C) 1971 by Bobbs-Merrill, Inc., Indianapolis, Indiana. Pages 9-42 and ap-
pendix A reprinted with their permission. All rights reserved.
(217)
PAGENO="0226"
.218
common issue is whether a legitimation purportedly accomplished in
State No. 1 is effective in State No. 2.
This chapter will develop the definition of illegitimacy by describing
the routes to legitimation by which many children born more or less
out of wedlock become legally equal to legitimate children. Subse-
quently, discussion will turn to the "incurably" illegitimate child's
legal rights against his parents, especially his father, and to problems
arising when laws "conflict." How the law goes about ascertaining the
father will be the subject of a later chopter.
Although this book is concerned with the legal relationship between
illegitimate child and natural parent. brief mention should be made
of adoption statutes under which a significant proportion of children
born illegitimately finds legitimate status vis-a-vis adoptive parents.
In typical cases, these children fare better with the "social parents"
thus acquired than they would have fared with their natural parents.
Obviously, where available, adoption can be a very desirable answer to
illegitimacy.
A. ILLEGITIMACY DEFINED
1. EXPANDING T~ DEFINITION OF LEGITIMACY
The definition of illegitimacy is tied to the parents' marital status
at the time* of their child's birth. It usually involves the fact that the
child was "born out of wedlock and not legitimated," sometimes in-
cludes a reference to the time of conception to cover the child who was
conceived before marriage or born after its termination,4 and excludes
from legitimacy children born to a married mother in circumstances in
which the husband could not have been the father.5
(I) CHILDREN OF INVALID MARRIAGES
"Definitional" relief has operated primarily on the definition of
"born in wedlock" which, in turn, crucially depends on the definition
of "wedlock." For purposes of the status of children, the definition of
"wedlock" has been shifted in the would-have-been illegitimate's favor.
*Whereas the offspring of a defective marriage, annulled with ab initio
effect, used to be illegitimate, a number of States today give legitimate
status to the child of almost any alliance that resembles a formal mar-
riage.6 A large area of potential illegitimacy has thus been eliminated
by provisions such as the following:
"Whenever persons attempt or have attempted to contract and be
joined in marriage, and some form of marriage ceremony recognized
by law has been performed in apparent compliance with the law in
relation to marriage . . . such issue is hereby made legitimate and
`Ga. Code Ann. § 74-201 (1964) ; Hawaii Rev. Stat. § 577-14 (1968) La. Civ. Code
Ann. art. 180 (West 1952) ; N.Y. Gen. Contsr. Law 59 (McKinney 1951) ; S.D. Comp.
Laws § 25-5-3 (1967) P.R. Laws Ann. tit. 31, § 442 (1968) ; Wyo. Stat. Ann. § 14-60
(1965).
A child born out of wedlock is a child begotten and born to any woman who was un-
married from the conception to the date of birth of the child." Mich.- Stat. Ann. §722.711
(1968).
"Child born out of wedlock . . . [means] either a child born to an unmarried woman,
or a child which, although born to a married woman, is either alleged or adjudicated not
to be the issue of her marriage." Wis. Stat. Ann. § 52.45 (Supp. 1969).
°H. Clark, Domestic Relations 132-35 (1968). See generally, statutes cited, note 7
tnfra.
PAGENO="0227"
~19
may take the name of the father, though such attempted marriage is
declared void or might be declared void for any reason." ~
Covered by this type of provision are the children of parents whose
marriage di~ not meet the test of legality by reason of their failure to
comply with formal or substantive requirements such as health checks,
consent of a parent's parents and similar details, or because of the legal
disability of a parent. such as a continuing prior marriage (bigamy),
consanguinity (incest), nonage, idiocy or msanity, miscegenation 8 and
other impediments. Not all States. however, have been as generous.
Xpparentlv. no State legitimates the offspring of an invalid, informa.l
(Common law) marriage.9 In some jurisdictions the impediments of
prior marriage,'° Consanguinity ~`, or miscegenation 12 have given the
111. Rev. Stat., ch. 89, § 17a (1970) ; accOrd, Md. Code 1957 art. 16, 27. and Art. 93,
i-20S (1969). Texas provides that "{the~ Issue also of marriages deemed null In law
shall nevertheless be legitimate." Tex. vernon's Prob. Code Ann. 42 (1956). Other
states have provisions of varying breadth, usually somewhat narrower and sometimes
with exclusions for Incestuous, bigamous, or, miscegenetic Illegitimates: Ala. Code tlt. 34,
3 (1939) Alaska Stat. (13.10.030 (1962) (as to Inheritance) ; Ariz. Rev. Stat. Ann.
14-206 (1956) ; Ark. Stat. Ann. § 61-104 (1948) ; Cal. Clv. Code § 85 (West 1954)
Cob. Rev. Stat. Ann. 46-3-5 (1963) ; Del. Code Ann. tlt. 13 § 105 (1953) ; D.C. Code
Attn. (( 16-907, 16-908 (1967) Ga. Code Ann. § 53-104 (1961) ; Hawaii Rev. Stat.
338-21 (1968) Idaho Code Ann. § 14-104 (1948) (as to Inheritance) Burns' md. Ann
Stat. ((44-106, 44-107 (1965) ; Iowa Code Ann. § 598.22 (Supp. 1~70) ; Kan. Gen.
Stat, Ann. (23-124 (1964) ; Ky. Rev. Stat. Ann. 391.100(2) (1963) ; La. Clv. Code
Ann. arts. 117, 118 (West 1952) ; Mich. Stat. Ann. § 552.1 (1967) ; Minn. Stat. Ann.
517.19 (1965) : Mo. Rev. Stat. § 474.080 (1959) ; Nev. Rev. Stat. § 125.410 (1967)
N.H. Rev. Stat. Ann. § 45S :23 (1968 Repl.) N.J. Rev. Stat. § 9:15-2 (1960), § 2A :34-20
(1960) N.Y. Dom. Rel. Law § 24 (McKlnney Supp, 1970) ; N.Y. Unconsol. Laws § 2113d
(McKinney 1949) ; NC. Gen. Stat. § 50-11.1 (1966) ; ND. Cent. Code § 56-01-05 (1969)
Ohio Rev. Code Ann. §( 2105.18 (Page 1968), 3105.33 (Page Supp. 1969) ; Okla. Stat.
Ann. tit. 12, 1283. tlt. 84, 215 (1962) ; Ore. Rev. Stat. § 106.190 (1969) ; Pa. Stat
Ann. tit. 48, 169.1 (Supp. 1964) ; RI. Gen. Laws Ann. 15-8-21 (1957) ; S.C. Code
Ann. ((20-4. 20-6.1 (1962) ; S.D. Comp. Laws H 25-5-1-25-5-3. 25-5-5 (1967) ; Utah
Code Ann. 74-4-10 (1953) ; Vt. Stat. Ann. fit. 15, § 520 (1958) ; Va. Code Ann. § 64.1-7
(1968) : Wash. Rev. Code Ann. § 26.08.060 (1961) ; W. Va. Code Ann. H 42-1-6, 42-1-7
(1966) Wis. Stat. Ann. 245.25 (1967) ; Wyo. Stat. Ann. § 20-68 (1959).
Sec note 12 iufra.
See discussIon In H. Clark, Domestic Relations 133 (1969). Annot., 33 A.L.R. 2d TOO,
751 (1954). But see N.Y. Dom. Rel. Law § 33 (McKinney 1964), recognizIng as legitimate
the child of a valid sister state common law marriage. Cf. Ill. Rev. Stat. ch. 89, § 4 (1970).
10E.g., Fla. Stat. Ann. §~ 61.041(9), 61.051 (1967). Bigamous bastards commonly
are considered legitimate as to the party who entered Into the bigamous marriage In good
faith. D.C. Code Ann. § 16-907 (1967) ; Burns' md. Ann. Stat. § 44-108 (1965) Mass.
Ann. Laws ch. 207, § 17 (1955) ; Neb. Rev. Stat. § 42-327 (1968) ; Wyo. StaL Ann.
§ 20-70 (1959). See Comment, Domestic Relations-Legitimacy of I8sue of Bigamous
Marriage, 22 Tenn. L. Rev. 1066 (1953). An Interesting variation on this theme was the
case of Simpson v. Blackburn, 414 S.W.2d 795 (Mo. App. 1967), In which the court held
that Missouri's legitimation statute applied not only to children born out of wedlock
but also to a child born In wedlock by a man who did not become the mother's husband
until later. Mo. Rev. Stat. § 474.070 (1959) sImply provides that "[I]f a man, having
by a woman a child or children, afterward intermarries with her and recognizes the child
or children to be his they are thereby legitimated." Ky. Rev. Stat. § 391.090(3) (1963)
similarly allows for the legitimation of an illegitimate child upon the marriage and)
acknowledgment of the parents. This statute was held to be inapplicable to an illegitimate
child born in wedlock, since the child never was illegitimate. The fact that the natural
parents married after they had obtained divorces from their respective spouses had no
legitimating effect on the child. Department of Child Welfare v. Helton, 411 S.W.2d 932
(Ky. App. 1967).
U E.g., Ky. Rev. Stat. Ann. § 391.100(1) (1963) ; Me. Rev. Stat. Ann. ch. 19 § 633
(1965) ; Miss. Code Ann. § 2748-03 (Supp. 1966) ; Nab. Rev. Stat. § 42-328 (1968)
N.H. Rev. Stat. Ann. § 457 :3 (1968) ; Wyo. Stat. Ann. § 20-69 (1959).
~-` Such provisions remain on the books in, for example, Florida which holds that a
child of an attempted marriage between white and Negro "shall be regarded as bastard
and Incapable of having or receiving any estate, real personal or mixed, by inheritance.
Fla. Stat. Ann. § 741.11 (1967). Van Hook v. Blant'on, 206 So.2d 210 (Fla. 1968), held
this statute unconstitutional. Kentucky provides: `The issue of a marriage . . . between
a white person and a negro or mulatto Is not legitimate." Ky. Rev. Stat. Ann. § 391.100
(1963). On the other hand, Indiana expressly provides that issue of marriages void
on account of differences in color shall be deemed legitimate. Burns' md. Ann. Stat.
44-107 (1965) ; accord, Ore. Rev. Stat. § 106.210 (1969). Arkansas specifically (and
generously) recognizes as legitimate the offspring of a Negro-Mulatto marriage. Ark. Stat.
Ann. § 55-236 (1948). See also Ga. Code Ann. § 74-102 (1964). See isvfra note 16.
PAGENO="0228"
220
legislators pause, and only the children of unions void by reason of
"lesser" impediments, such as nonage, idiocy, or insanity of one or
both of the partners are legitimated.13 Under some statutes, the good
faith of the parties may play a decisive role.14 Still others restrict the
child's legitimate status to the would-be spouse who was not under an
impediment.15 It is of historical interest that some statutes prohibiting
racial intermarriage and declaring such marriages void specifically
exclude (or were judicially interpreted to exclude) the issue of such
unions from a general legitimation statute.16
(II) LEGITIMATION BY PARENTS' MARRIAGE AFTER
CHILD'S BIRTH
Statutory provisions legitimating potential illegitimates have oper-
ated in a number of other situations. Most common are provisions that
automatically or through acknowledgment or recognition on the part
of the father, legitimate an illegitimate child upon the marriage of his
parents.17 A frequently imposed requirement is the. specific acknowl-
13 Iowa excludes legitimacy for the issue of a marriage annulled by reason of the
husband's impotency. Iowa Code Ann. § 598.22 (1966).
14 Miss. Code Ann. § 2748-03 (Supp. 1966), provides: "Except for incestuous or mis-
cegenetic marriages, the issue of the parties to a void marriage conceived subsequent to
the date thereof is legitimate In addition "a `void marriage' under section 3 must
have been entered into innocently and in good faith by at least one of the parties." Stutts
v. Estate of Stutts, 194 So. 2d 229 (Miss. 1967). Illogically, the one who is punished for
the parent's bad faith is not the parent but the child who will have no (or limited) legal
rights against the parent who acted in bad faith. La. Civ. Code Ann. Art 118 (West,
1952) specifically provides that the children of a null marriage are legitimate if one of
the parties acted in good faith. Succession of Jene, 173 So. 2d 857, 860 (La. Aup. 1965)
defines "good faith" as requiring "only that the party should have no certain I~nowledge
of any impediment to the marriage and should have an honest and reasonable belief that
the marriage was valid and that no legal impediment existed at the time of its confection."
Cf. Pace v. Celebrezze, 243 F. Supp. 317 (S.D. W. Va. 1965) ; Bernier v. Bernier, 227
A.2d 112 (RI. 1967). In many other states, no element of good faith is required. See e.g.,
Wolf v. Gardner, 386 P.2d 295 (6th Cir. 1967) : "We can see no sound reason . . . for
withholding legitimacy from the children of a bigamous marriage simply because both
parties knew that they were entering into a bigamous marriage. ` ~S'ee generally Annot.,
84 A.L.R. 499, 505 (1933) ; Note, Children or Void or Voidable Marriages, 34 Temp. L.Q.
66, 69 (1960) ; Comment, Determination of Paternity of Child or Putative Marriage, 19
La. L. Rev. 706 (1959).
15 Iowa Code Ann. § 598.22 (1966) ; Mass. Ann. Laws ch. 207, § 16 (1955) ; Nab. Rev.
Stat. 42-236 (1968). ~ee also Unity v. Belgrade, 76 Me. 419 (1884) ; 10 Am. Jur. 2d
Bastard8 § 2 (1963).
16Note 12 supra. Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967),
held that state law could not forbid marriages solely on the basis of racial classifications.
See Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Per-
spective 52 Va. L. Rev. 1189 (1966) see also, Comment, Mi8cegenation Laws Based Solely
Upon Race Are a Denial of the Due Process and. Equal Protection of the 14th Amendment,
13 N.Y.L.F. 170, 171, 172, nn. 5-7 (1967). Subsequent to Loving, the miscegenation laws
of Delaware and Oklahoma were held unconstitutional in Davis v. Gately, 269 F. Supp.
996 (D. Del. 1967) and Dick v. Reaves, 434 P.2d 295 (Okia. 1967).
17 See Ala. Code tit. 27, § 10 (1958) Alaska Stat. 25.20.050 (1962) ; Ark. Stat. Ann.
§ 61-103 (1948) Cal. Civ. Code § 215 (West 1954) ; Conn. Gen. Stat. Ann. § 45-274
(1900) ; Del. Code Ann. tit. 13, § 1301 (1953) ; D.C. Code Ann. § 16-2353 (1967~ Fla.
Stat. Ann. § 742.091 (1967) ; Ga. Code Ann. § 74-101 (1964) ; Hawaii Rev. Stat. § 338-21
(1968) ; Idaho Code Ann. 32-1006 (1963) . Ill. Rev. Stat. ch. 106 3/4. § 63 (1970)
Burns' lad. Ann. Stat. 3-656 (1968) ; Iowa `Code Ann. § 595~18 (1966) ; Kan. Stat. Ann.
§ 23-125 (1964) ; Ky. Rev. Stat. Ann. § 391.090 (1963) ; La. Civ. Code Ann. arts. 198,
199 (West 1952) ; Me. Rev. Stat. Ann. tit. 18, § 1003 (1965) ; Md. Ann. Code art. 46,
§ 6 (1965) ; Mass. Ann. Laws ch. 190, § 7 (1955) ; Mich. Comp. Laws § 302.83 (1968)
Minn. Stat. Ann. § 517.19 (1965) Neb. Rev. Stat. § 13-109 (1962) ; Nev. Rev. Stat.
§ 134.170 (1967) N.H. Rev. Stat. Ann. § 457.42 (1968) ; N.J. Stat. Ann. § 9 :15-1 (1960)
N.M. Stat. Ann. § 29-1-20 (1954) ; N.Y. Dom. Rel. Law § 24 (McKlnney Supp. 1970)
Ore. Rev. Stat. § 109.070 (1969) ; Pa. Stat. tit. 48. § 167 (1965) P.R. Laws Ann. tit. 31,
§ 482 (1968) ; RI. Gen. Laws Ann. § 33-1-8 (1970) ; S.C. Code `Ann. § 15-1384 (1962)
Tenn. Code Ann. § 36-307 (1955) ; Utah Code Ann. § 77-60-14 (1953) Vt. Stat. Ann.
tit. 14, § 554 (1958) ; Va. Code Ann. 64.1-6 (1968) ; Wash. Rev. Code Ann. § 26.04.060
(1961) ; W. Va. Code Ann. § 42-1-6 (1966) ; Wis. Stat. Ann. § 245.25 (Supp. 1969).
PAGENO="0229"
221
edgment of the child by the fath~r. This may have to be in writing18
by conduct,'9 or meet other requirements such as publicity.20
The effect of a void or voidable marriage subsequent to the child's
birth is not always clear, although the dual handicap has been over-
come where a State had both types of legitimation statutes.2' Where
still recognized, even an informal, common law marriage may effect
legitimation.
(III) MISCELLANEOUS LEGITIMATION STATUTES
The parents' divorce prior to the bfrth of the child normally does
not affect the legitimacy of the child,23 if the child is born within a
certain period after the divorce, often set at 10 months,24 or 300 days 25
Just to make sure. at least one ~tatute provides that a child conceived
out of wedlock is iegitimate if his parents marry prior to his birth.26
Others proclaim that a judgment in a paternity action establishes
equality with legitimate children of the same parents.27
~ Alaska Stat. 25.20.050 (1962) ; Cob. Rev. Stat. Ann. § 66-8-13 (Supp. 1967) ; Del.
Code Ann. Ut. 13, 1301 (1953) ; D.C. Code Ann. § 16-2353 (1967) ; Neb. Rev. Stat.
13-109 (1962) ; S.D. Comp. Laws § 34-25-16 (1969) ; Wash. Rev. Code Ann. § 11.04.081
(1967).
Alaska Stat. § 25.20.050 (1962) Cal. Prob. Code 255 (West Supp. 1968) ; Cob.
Rev. Stat. Ann. 153-2-8 (1964) ; Idaho Code Ann. § 14-104 (1948) ; Ky. Rev. Stat.
Ann. 391.090 (1963) Me. Rev. Stat. Ann. tit. 18, § 1003 (1965) ; Md. Ann. Code art. 46,
6 (1965) Mass. Ann. Laws ch. 190, § 7 (1955) ; N.J. Stat. Ann. § 9 :15-1 (1960).
D.C. Code Ann. 16-2353 (1967).
Rivieccio v. Bothan, 27 Cal. 2d 621 165 P.2d 677 (1946) ; L. v. L., 92 N.J. Super. 118,
222 A.26 297 (1966) ; Carroll v. Carrdil, 20~Tex. 732. 746 (1858) See Comment, Legiti.-
~cUor. .Statute~-Effect of Void Marriage as Legitimating Child Born Prior to Such
L'rarricgc. 19 So. Calif. L. Rev. 457 (1946) ; cf. Comment, Legitim~zcy and Status of
Ciiidrcr of Marria7es Which Are Void or Annulled, 17 Brooklyn L. Rev. 324, 332 (1951).
See also Alaska Stat. § 13.10.030 (1962).
W. v~. Cod Ann. 42-1-7 (1966), as interpreted in Kester v. Kester, 106 W. Va.
615. 146 S.E. 625 (1929) and later cases. On the other hand, Burns' md. Ann. Stat.
44-111. 44-112 (1965), declares common-law marriages void, thus making their issue
illezitimate if born after the effective date of the statute.
~Ariz. Rev. Stat. Ann. § 25-920 (Supp. 1969) ; Cob. Rev. Stat. Ann. 46-1-1 (1964)
Del. Coie Ann. Ut. 13. § 1509 (1953) : D.C. Code Ann. § 16-909 (1967) Idaho Code Ann.
14-104 (194S) Ill. Rev. Stat. ch. 40, § 4 (1970) ; Miss. Code Ann. § 2744 (1957) ; Neb.
Rev. Stat. § 13-101 (1962) : N.H. Rev. Stat. Ann. § 458 :23 (1968) ; N.C. Gen. Stat.
§ 50-11 (1966) Ohio Rev. Code Ann. § 3105.13 (Page 1960) S.C. Code Ann. § 20-119
(1962). Legitimacy is presumed until the contrary is shown even In case of divorce for
adultery. Mich. Stat. Ann. 552.29 (1967). Child is legitimate If it is the product of the
marriage. Ga. Code Ann. § 30-119 (1969). See, e.g., Sturdy v, Sturdy, 67 Ill. App. 2d 469,
214 N.E.2d 607 (1966), which held legitimate a child who had been conceived before the
marriage of its parents and who was born after their divorce: "We cannot hold that the
fact that this Act omits to state the particular sequence of conception, marriage, divorce
and birth that is alleged here, requires this court to hold that this minor child was born out
of Wedlock'," Id. at 473 214 NE.2d at 609. Cf. Home of the Holy Infancy v. Kaska, 397
S.W.2d 208 (Tex. 1965) (child conceived before voidable marriage and born after its
annulment held legitimate under Tex. Prob. Code Ann. 42 (Vernon, 1956) which pro-
vides: "Where a man, having by a woman a child or children shall afterwards intermarry
with such woman, such child or children shall thereby be legitimated and made capable of
inheritinc his estate".)
~ Mont. Rev. Codes Ann. 61-102 (1970) ;, N.D. Cent. Code 14-09-02 (1960) ; Okla.
Stat. Ann. tit. 10. § 2 (1961) ; S.D. Comp. Laws 25-5-2 (1969). Puerto Rico recognizes
as legitimate a child born within 300 days after the dissolution of the marriage, P.R.
Laws Ann. tit. 31, § 461 (1968). La. Civ. Code Ann. art. 187 (West 1952) provides that
the husband is not to be presumed the father when the child is born more than 300 days
after dissolution of the marriage or judicial separation from bed and board. In Gibson v.
Gibson, 207 Va. 821, 153 S.E.2d 189 (1967), the court held that a child born 314 days
after the last date of cohabitation by husband and wife was illegitimate. Time has not
always been of the essense: "In the time of Edward II, the Countess of Gloucester bore
a child one year and seven months after the death of the duke, and it was pronounced
legitimate. In the reign of Henry VI, Mr. Baron Rolfe expressed the opinions with ap-
parent gravity, that a widow might give birth to a child seven years after her husband 5
death without injury to her reputation." Dickinson's Appeal, 42 Conn. 491, 501, 19 Am.
Rep. 553, 555-56 (1875).
Cal. Evid. Code § 661 (West 1966) P.R. Laws Ann. tit. 31, ~ 461 (1968).
~ Note 4 supra.
Alaska Stat. § 25.20.050 (1962). See also Appendix A. infra p. 241.
PAGENO="0230"
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(IV) PRESUMPTION OF LEGITIMACy IN MARRIAGE
A further aspect of the definition minimization of illegitimacy in-
volves the children of married women. In the interest of stabilizing
family relationships, there is universal acceptance of a strong pre-
sumption of legitimacy in favor of children born in wedlock. The pre-
sumption is rooted in case law but also has found statutory
expression.28 Even in the common law, the presumption has been traced
back to Roman times.29 In England, the rule colorfully referred to the
husband's presence within the "four seas"-if present, a child born to
his wife was legitimate unless he could prove impotency.°°
Several American States continue to employ a conclusive presump-
tion of legitimacy, prohibiting a showing to the contrary. True to its
name, the conclusive presumption upholds the child's legitimacy even
where nonpaternity can be established absolutely.~' In 1967, a Cali-
fornia court held that a part Negro child born to a white woman was
the legitimate child of the mother's white husband.32 States that have
a rebuttable presumption typically make a rebuttal difficult.°° Under
these conditions, actual impossibility of the husband's fatherhood
often turns out to be the only basis for bastardizing a child born in
wedlock. To show impossibility, conclusive proof of nonpaternity by
blood test exclusions may suffice,~~ and so may proof of nonaccess by
the husband during the relevant period,°° or proof of the husband's
3° See generally H. Clark, Domestic Relations, 156, 172, 492 (1968) ; Annot. 57 A.L.R.2d
729 (1958). Cal. Evid. Code 621 (West 1966).
29 Kennedy v. State, 117 Ark. 113, 173 S.W. 842 (1915).
3° J. Madden, Persons and Domestic Relations 338-43 (1931) ; Nicolas, The Law of
Adulterine Bastardy 10-14 (1836).
3° See, e.g. Ore. Rev. Stat. § 41.350 (1969) ; Comment, Evidence-Presumption or
Legitimacy__'Bloo~ Grouping Test Insuffi to Prove Non-Paternity where Statutory Pre-
sumption is conclusive, 16 Rutgers L. Rev. 767 (1962).
3°Hess v. Whitsitt, 257 Cal. App. 2d 552, 65 Cal. Rptr. 45 (1967). Cal. Evid. Code § 621
(West 1966) provides: "Notwithstanding any other provision of law, the issue of a wife
cohabiting with her husband, who is not impotent, is conclusively presumed to be leciti-
mate." But cr Jackson v. Jackson, 67 Cal. 2d 245, 430 P.2d 289, 60 Cal. Rptr. 649 (1967);
Hughes v. Hughes, 125 Cal. App. 2d 781, 271 P.2d 172 (1954). See generally Comment,
Presumptions of Legitimacy and Related Problems, 23 So. Cal. L. Rev. 538 (1950). Com-
ment, California's Tangled Web: Blood Tests and the Conclusive Presumption of Legiti-
macy, 20 Stan. L. Rev. 754 (1968).
3° N.D. Cent. Code § 14-09-03 (1960), provides: "The presumption of legitimacy can be
disputed on1y by the husband or wife, or the descendant of one or both of them. Illegiti-
macy in such case may be proved like any Other fact." Accord, Del. Code Ann. tlt. 13,
§ 508 (1953) ; Mont. Rev. Codes Ann. 61-103 (1970) ; Okla. Stat. Ann. tit 10, § 3
(1961) ; S.D. Comp. Laws 25-5-4 (1969). In Maryland, testimony from other persons
must be given as to the fact that husband and mother were living apart, before husband
and mother may testify as to nonaccess. Md. Ann. Code art. 16, 66F (1966). In Wis-
consin the husband and wife may testify, but a "clear and satisfactory preponderance of
the evidence" is required to overcome the presumption. Wis. Stat. Ann. 891.39 (1967).
What happens when the presumption of legitimacy, "one of the strongest known to the
law," meets the presumption of a continuing marriage, is discussed in Comment, Evi-
dence-Presumption of Legitimacy, 35 Geo. L. J. 398 (1947).
3° Cob. Rev. Stat. Ann. § 52-1-27 (Supp. 1967) ; Conn. Gen. Stat. Ann. 52-184
(1968) ; Ill. Rev. Stat. ch. 106 3/4, 4 (1970) ; Miss. Code Ann. 383-08, -09 (Supp.
1967), N.H. Rev. Stat. Ann. § 522 :4 (1955) : N.Y. Family Ct. Act. 418 (McKinney s
Supp. 1962); Pa. Stat. Ann. tit. 28, .§ 307.4 (Supp. 1969) ; Utah Code Ann. § 78-45a-10
(Supp. 1969) ; Wis. Stat. Ann. § 52.36(3) (Supp. 1969). See. e.g., Houghton v. Houghton,
179 Neb. 275, 137 N.W.2d 861 (1965) ; Crouse v. Crouse. 51 Misc. 2d 649. 273 N.Y.S.2d
595 (Fam. Ct. 1966); Oliver v. England. 48 Misc. 2d 335, 264 N.Y.S.2d 999. 1004 (Fam. Ct.
1965) ; Rose v. Rose, 16 Ohio App. 2d 123, 242 N.E.2d 677 (1968). See Comment, 24 U.
Pitt. L. Rev. 653 (1963).
3°Puerto Rico admits no other proof. P.R. Laws Ann. tlt. 31, 461 (1968). Under West
Virginia law, where a married woman lives apart from her husband for one year or does
not cohabit with him during that year, she may, if she is delivered of child at any time
after said year or while such separation continues, bring a paternity action against someone
not her husband. W. Va. Code Ann. § 48-7-1 (1966). See also Lanford v. Lanford, 151
Cob. 211, 377 P.2d 115 (1962) ; District of Columbia v. Prather, 207 A.2d 119 (D.C.
App. 1965) ; Feltus v. Bland, 210 So.2d 388 (La. App. 1968) ; Peters v. District of Colum-
bia, 84 A.2d 115 (D.C. App. 1951).
PAGENO="0231"
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sterility or impotency.36 Sometimes statutes provide that only the hus-
band may question the legitimacy of a child born to his wife, others
limit the action to the husband and wife and their descendants.37 The
presumption of legitimacy is further supported by rules of evidence
which restrict a spouse's ability tO testify to nonaccess.35 It is notable
that the common law has applied the presumption of legitimacy with
nearly equal force to a child conceived prior to marriage and born in
wedlock.39 as well as to a child conceived during marriage and born
after a divorce.40
(F) COMMON L~W MARRIAGES
*One important legal development is at cross purposes with the liber-
alizing statutes just discussed and has worked against the illegitimate.
The growing trend toward abolition of the institution of informal or
:~conimon law" marriage, has had the incidental effect of significantly
increasing illegitimacy. Today less than one-third of the States retain
the institution 41 which. in one of its forms, views a union as a valid
marriage if the intending spouses have presently 42 consented to be
husband and wife. if the marriage has been consummated, and if the
spouses have publicly held out each Other as such.43 Where valid, such a
union produces legitimate offspring.44 Where it is not valid, resulting
children are illegitimate. Public policy arguments against the institu-
tion of common law marriage usually overlook the interests of the
child who. in the absence of a legally recognized relationship between
his parents, is condemned to bastardy. Professor Clark has attacked
the abolitionists:
~In short. most of the objections to common law marriage mistake its
purpose. As a doctrine it has little or no effect at the outset of the par-
ties' relationship. It. conies into play after that relationship has existed
for some time. for the purpose of vindicating the parties' marital
expectations. There are other legal devices having the same purpose,
but common law marriage plays an important part. Without it there
would be more injustice and suffering in the world than there is with it.
This is particularly true among those social and economic classes who
have not accepted middle class standards of marriage. Certainly Amer-
ican marriage law should tolerate this much cultural diversity." ~
See, e.g., Iowa Code Ann. § 598.22 (1966). Louisiana does not permit the husband to
disavow a child born to his wife by proving his natural impotence. La. Civ. Code Ann. art.
i85 (West 1952).
`~ Statutes cited note 33 supra. 10 Am. Jur. 2d Bastards § 10 (1963). E.g., Lewis v.
Powell, 178 So.2d 769 (La. App. 1965).
`~ See p. 119 infra, concerning "Lord Mansfield's rule."
"H. Clark, Domestic Relations 172. nfl. 97 & 98 (1968).
40 A recent case is Rose v. Rose, 16 Ohio App.2d 123, 242 N.E.2d 677 (1968), in which
the court held the presumption rebutted on the basis of a blood test exclusion, and im-
probably short 224 day pregnancy, and evidence associating the mother with other men.
~ A. Jacobs & J. Goebel, Cases on Domestic Reations 93-94 (1961).
~ The requirement of "present consent" to marriage distinguishes the resulting reIn-
tionohip from an engacement to be married at a future time.
"Sec Walter v. Walter, 433 S.W.2d 183 (Tex. Civ. App. 1968) ; Cf. Wolf v. Gardner,
3S6 F.2d 295 (6th Cir. 1967).
4~ See, e.g., Spradlin v. United States, 262 F. Supp. 502 (D. Mont. 1967).
`~H. Clark, Domestic Relations 58 (1968).
PAGENO="0232"
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(VI) ARTIFICIAL INSEMINATION
A new problem has been raised by the expanding utilization and ac-
ceptance of artificial insemination. Statutory treatment of the question
has been scant,46 and the courts have not provided a solution.47 In cases
where a married woman had conceived a child with the consent of
her husband by artificial insemination from a donor other than her
husband, judicial treatment has ranged from a holding that the re-
sultant child is the husband's legitimate child 48 to the extreme of
branding the child a bastard and the mother an adulteress.49 In many
such cases, of course, the presumption of legitimacy applicable to chil-
dren born in wedlock will help.
A 1967 Oklahoma statute may point the way toward the future.
It simply provides that a child born to a married woman as a con-
sequence of heterologous artificial insemination is legitimate as to
the husband (and of course the mother), if the insemination was per-
formed by an authorized medical practitioner with the written con-
sent of husband and wife.5°
2. VOIJ1JNTARY ACCEPTANCE OF PATERNAL RESPONSIBILITY
"Definitional" relief has operated in one other area. As already
indicated, most States permit full legitimation to be accomplished
through the marriage of the parents of the illegitimate child, although
numerous States even then require a specific acknowledgment. Beyond
that, however, some States have given the father the opportunity to
accept responsibility for his illegitimate child by voluntary acknowl-
edgment.~' These statutes vary widely in form and operation. They
46 Cal. Pen. Code § 270 (West Supu. 1968), dealing with failure to provide support,
provides: "The husband of a woman who bears a child as a result of artificial insemination
shall be considered the father of that child for the purposes of this section, if he con-
sented in writing to the artificial insemination." Cal. Civ. Code § 196b (West Supp. 1968)
provides: "[t]he husband of a woman who bears a child as a result of artificial insemina-
tion shall be liable for support of the child in the same manner as if he were the natural
father, if he consented in writing to the artificial insemination." A model statute on
artificial insemination is pronosed in Comment, Artificial Insemination: The Law's Illegiti-
mate Child?, 9 Vill. L. Rev. 77, 90-93 (1963). See also note 50 infra.
~ See generally H. Clark, Domestic Relations at 157-58, 329; Biskind, Legitimacy of
Children Born by Artificial Insemination, 5 J. Fam. L. 39 (1965) ; Holloway, Artificial
Insemination-An Examination of the Legal Aspects, 43 A.B.A.J. 1089 (1957); Schwab.
Artificial Insemination and the Law, ABA Proceedings of the Family Law Section 104
(1963) ; Smith, Throuch A Test Tube Darkly: Artificial Insemination and the Law, 67
Mich. L. Rev. 127 (1968) ; Weinberger, A Partial Solution to Legitimacy Problems Arising
From the Use of Artificial Insemination, 35 md. L.J. 143 (1960) ; Note, Social and Legal
Aspects of Human Artificial Insemination, 1965 Wis. L. Rev. 859 (1965). Comment,
Artificial Insemination and the Problem of Legitimation and Adultery), 1955 II. 111. L.F.
759 (1955) ; Comment, Artificial Insemination: The Law's Illegitimate Child?, 9 Vill.
L. Rev. 77 (1963).
48Peonle v. Sorensen, 68 Cal. 2d 280, 66 Cal. Rptr. 7, 437 P.2d 495 (1968), involved a
child who had been conceived through artificial insemination pursuant to an agreement
between the husband and wife. In a nonsupport action, the mother's husband was held to
be the "lawful father" of the child.
49Doornbos v. Doornbos, No. 54, S. 14981 [Super. Ct., Cook Co., Dec. 13, 1954] ; 23
TJ.S.L.W. 2308 (1954). The appeal was dismissed, but the anpellate court held that the
declaratory judgment was not binding on the child since it had not been represented in
the proceedings. Doornbos v. Doorn.bos. 12 Ill. App. 2d 473. 139 N.E.2d 844 (1956). Cf.
Gurskii v. Gvrsky. 39 Misc. 2d 1083, 242 N.Y.S.2d 406 (1963) ; Stnod v. lStnad, 190 Misc.
786, 78 N.Y.S.2d 390 (1948).
5° OkIa. Stat. Ann. tit. 10 §~ 551-553 (Supp. 1967). Similarly, Ga. Code Ann. § 74-9904
(Supp. 1969). Cf. Ga. Code Ann. § 74-101.1 (Supp. 1969). See 30 Brooklyn L. Rev. 302,
32~ ~ Conn. Gen. Stat. Ann. 52-442b (Supp. 1969). Comment, Legitimation: The
Liberal Judicial Trend in California, 19 Hastings L.J. 232 (1967). In the French tradi-
tion, Louisiana does not consider maternity to be established by the child s birth and gives
the mother an opportunity to acknowledge her out of wedlock child. But see Glona v.
American Guarantee ~ Liab. Ins. Co., 391 U.S. 73, 20 L. Ed. 2d 441, 88 S. Cl. 15Th (1968).
PAGENO="0233"
225
range from procedures resulting in full legitimation, thus providing
equality with legitimate children,52 to arrangements of "partial" legit-
imation. usually in support. ~ and inheritance matters, that Sometimes
a~o no fnrther than a judgment in a paternity action.~~ A variation on
the le~-1timation theme is an adoption statute that allows the father
to sdopt. his illegitimate child.55
As to form. the father's acknowledgment usually has to be in writ-
ing and witnessed and sometimes must be executed before a notary,56
other official. or court.~ Some statutes view the admission of an il-
legitimate child to the father's family and other acts or events tend-
ing to show the father's voluntary acceptance of his illegitimate child ~
as suffic:ent to accomplish legitimation.co
3. I~LTROACTIVE EFFECT OF LEGITIMATION
Some statutes expressly speak th terms of a legitimation after the
child's birth being effective retroactively to the birth of the child.61
Such assertions should be taken with a considerable dose of salt. In
some respects. such as the issuance of a new birth certificate that elimi-
nates all reference to the child's former illegitimacy, post-birth legit-
imation ma indeed be viewed as retroactive. However, when property
~ Co~n cit. 27. 11 (Supp. 1969) ; Ga~ Code Ann. § 74-103 (1964) ; Idaho Code
- j ~~unn 1~ ) Iow~. Code Ann 633 222 (1966) Mass Ann Laws cli
- ~. t ~nn ~`02 S (lOGS) Ohio Rev Code \nn § 210~ 18 (Page
~..C. Cc'de Ann. 15-1354 (1962) ; S.D. Comp. Laws § 25-6-i (1969) . Utah Code
n.tTS-30-12 (1053).
~ he the rough equivalent of a consensual settlement of a paternity action
S'~e Ccan. ben. Stat. Ann. § 52-442a (1968) ; Hawaii Rev. Laws 577-14 (1968) ; Neb.
Rev. Stat. 13-106 (1962) ; ~.Y. Dom. Ret. ~. Law § 33 (McKinney 1964) ; ND. Cent.
Code 32-30-05 (1960) ; RI. Gen. Laws Ann. § 15-8-7 (1970) ; Va. Code Ann. § 20-61.1
(1500 : Wyo. Stat. Ann. § 14-62 (1965).
Cii. Prob. Code 255 (West Supp. 1968) ; Cob. Rev. $tat. Ann, i 152-2-11 (1964)
Fin. St~:. Ann. 731.29 (1987) ; Idaho Code Ann. l 14-104 (1948) ; Kan. Gen. Stat. Ann.
no-aoi i1064) ; Minn. Stat. Ann. § 52o.172 (Supp. 1967) ; Mont. Rev. Codes Ann. § 91-
404 (1964) ; ~ev. Rev. Stat. § 134.170 (1967) : N.M. Stat. Ann. § 29-1-18 (1954) ; S.D.
Comp. Laws 29-1-15 (1969) ; Wash. Rev. Code Ann. § 11.04.080 (1961) ; Wis. Stat.
Ann. § 237.06 (Supp. 1969).
S.C. Code Ann. § 10-2587.3(d) (Supp. 1969). South Dakota dispenses with a formal
procedure where the father takes the child into his home. S.D. Comp. Laws § 25-6-1
(1969).
La. Civ. Code Ann. art. 203 (West 1952) ; Me. Rev. Stat. Ann. fit. 18, 1003 (1965).
In Michiraa. the acknowledgment must be executed as if it were a deed, Mich. Stat. Ann.
70253 ~1OGS). In most of the statutes cited in notes 53, 54 supra, a simple writing,
sOmetimes witnessed, is adequate.
Ccde tit. 27. l 11 (Supp. 1969) : Ga. Code Ann. § 74-103 (1964) ; Burns' lad.
Ann. Stat. 2-630 (1968) : Ohio Rev. Code Ann. 2105.1S (Page 1968) ; S.C. Code Ann.
t 15-1354 (1562) ; Tenn. Code Ann. §~ 36-301 to -303 (1955). But see, State v. Wolf, 156
Conn. 100. 239 A.2d 509 (lOGS), where an Informal, written acknowledgment, not under
oath, was held to be sufficient to establish paternity for a suport action.
~ Idaho Code Ann. § 16-1510 (Supp. 1969) ; N.D. Cent. Code 1 14-11-15 (1960) ; Okia.
Stat. Ann. tit. 10, § 55 (1962); S.D. Comp. Laws § 25-6-1 (1969) ; Utah Code Ann.
§ 7S-30-12 (1953). For an interesting discussion of California law concerning paternal
~icknowlecigment by "reception into the family," see Kay, Tue Family and Kinship System
of Illegitimate Children in California, 67 Am. Anthropologist 57, 61-72 (No. 6, Part 2,
~~~ather's conduct, notorious and implying general recognition: Alaska Stat. § 25.20.050
(1962) ; Iowa Code Ann. § 633.222 (1966) ; Kan. Stat. Ann. §59-501 (1964). In Miller
v. Miller, 231 N.E.2d 828 (lad. App. 1967), the court held that the child legitimated,
for purposes of inheritance, when the putative father had married the mother after the
birth of the child and both had later signed a divorce decree. which acknowledged the
child to he theirs. Wona v. Bect'ford, 28 App. Div. 2d 137, 283 N.Y.S.2C1 491 (1967), held
chat sapport furnished the child, to serve as an acknowledgment, must without doubt or
eaniv000tion he arovided for the purposes of sustenance of the child, Green v .Blue, 28 App.
D)v. 20 628. 2S~ N.Y.S.2d 767 (1967), held that a hospital record of a consent to perform
an oneration on a child which had been signed by~ the alleged father was a written
acknOwled~ment of paternity within the New York statute.
~.i ~ ocnerally Annot., 33 A~L.R. 26 705, 7~2 (1954).
ctCni~Civ COde §230 (West 1954); Idaho Code .i 16-l510(Supp. 1969); I'~.D. Cent.
Code § 14-11-15 (1960) ; OkJa. Stat. Ann. tit. 10 § 55 (1962) ; S.D. Comp. Laws § 2o-6-1
(1969); Utah Code § 78-30-12 (1953).
5i-207-75----16
PAGENO="0234"
226
interests vested prior to legitimation come in question, retroactive effect
is not being given.62
B. SUBSTANTIVE LAW-LEGISLATION THAT HAS RE-
DUCED THE BURDEN OF ILLEGITIMACY WITHOUT
AFFECTING STATUS
First a word about legislation that has neither reduced the burden
of illegitimacy nor affected the child's status, that has grappled with
the problem by changing its name. In modern legislative usage, terms
such as "illegitimate" or "child born out of wedlock" generally have
supplanted "bastard" 1 for obvious reasons, although some law books
still speak of "bastards" and "bastardy" without apparent ill will.2
Ironically, the appellation "illegitimate" (which means "unlawful")
is no bargain for the bastard. The sentence "child-born-out-of-wedlock"
is bulky and archaic. "Extra-marital child" has the flavor of adultery,
and "natural child" has too many other meanings 3-nor is it unnatural
to have a child in wedlock, at least not yet. "Non-marital child" may be
an inoffensively descriptive candidate to win the battle of words.4
However, terminology is of secondary weight. Indeed, overconcern
with nomenclature carries with it the danger that a legislature, having
outlawed an unpleasant word, may come to think that it has solved
an unpleasant problem. Something like this seems to have happened
in Arizona and Oregon.5 So asnot to obscure the substantive discussion,
this writing will stay with traditional terminology.
1. THE ILLEGITIMATE CHILD'S RIGHT OF SUPPORT
Still believing in the doctrine of yUivs llullivs, Texas and Idaho
(which do not have paternity statutes) continue to deny the illegiti-
mate child its right to be supported by its father.6 In Virginia the
support obligation is imposed on the father only if he has voluntarily
and formally recognized his child.7 There it was held that it does not
amount to recognition if the father has used his child to obtain an
income tax exemption on his tax return.8 In Missouri, the father's
~Restatement (Second) of Conflict of Laws 2S7, notes at 320-2i (Official Draft, Anril
22, 1969) Leflar, American Conflicts Law 583-84 (1968). Some statutes specifically pro-
vide that interests vested prior to legitimation cannot be affected by a "retroactive" legiti-
mation. For example. N.Y. Dom. Rel. Law 24 (McKinney 1964).
`The Illinois legislature in 1957 renamed the "Bastardy Act" to "Paternity Act" in order
"to give this chapter a more Imposing and dignified title People ea, reT. Covlngton v.
3ohnson, 79 Ill. App. 2d 266, 224 N.E.2d 664, 666 (i966); New York expressly forbids the
use of the terms "bastard" and "Illegitimate child" and provides that reference shall be to
"child born out of wedlock." N.Y. Gen. Constr. Law § 59 (1951). Neb. Rev. Stat. § 13-115
(1962) term used shall be "child born out of wedlock." In other states, for examnle Ala-
bama, Georgia, and Ohio, "bastard" and "illegitimate" are used interchangeably. See Ala.
Code tlt. 16. § 7 (19o9) ("Bastard" used in title of section and "illegitimate" in the text)
Ala. Code tit. 27, § 11 (Supp. 1969) ("bastard child"), Ala. Code tit. 27, § 12(1) (Supp.
1969) ("illegitimate child") ; Ga. Code Ann. 74-201 (1964) ("An illegitimate child, or
bastard, is a child born out of wedlock") ; Ohio Rev. Code Ann. § 2105.17 (Page 1968)
("bastards") and Ohio Rev. Code Ann. § 3111.01 (Page 1960) ("bastard child") : Ohio
Rev. Code Ann. § 2105.18 (Page 1968) ("illegitimate").
i eec, e.g. 10 Am. Jur. 2d Bastards (1963) ; also indices to many statutes and text books.
Aside from tha use of the term natural children to distinguish issue of the body from
adoptive children, Louisiana law speaks in terms of natural children to distinguish the
children of unmarried parents who could have been married from adulterine and incestuous
1 je~itlm~tes. This is based on French antecedents. Cf. ch. 6, frsfra.
See Krause, The Non-Marital Child-New Conceptions for the Law of Unlawfulness,
1 Fam. L.Q. 1 (June 1967).
See Appendix A, infra, pp. 241-243.
Concerning Texas, see Bjorgo v. Bjorgo, 391 S.w.2d 528 (Tex. Clv. App. 1965) rev'd.
402 S.W.2d 143 (Tex. 1966).
~ va. Code Ann. § 20-61.1 (1960).
8Distefano v. Commonwealth, 201 Va. 23, 109 S.E.2d 497 (1959).
PAGENO="0235"
227
support obligation is expressed only in the criminal nonsupport stat-
ute. and the courts had long refused to derive a civil liability from
tha't.~ Recently, however, Missouri changed her position dramatically
in response to a U.S. Supreme Court decision and today, still without
a specific statute, imposes a support obligation in favor of the illegiti-
mate child, equal to that owed a legitimate child.'°
Few courts have derived a duty of support from the common law.11
Fev~ have had to. Most. States impose a. duty of support on the legtti-
mate father by means of their ~bastardy act" or "paternity statute."
While this will be discussed in more detail in the chapter on ascertain-
ment of paternity, it should be noted here that many of these statutes
do not. run in favor of the child btit speak in terms of the mother'$
right to child support.'2
rrder such statutes, the level of support at which the father must
maintain his illegitimate child is quite generally left to the court's
discretion. rarely the jury's." Sometimes it is fixed by the statute.'4
A. number of statutes have gone some distance toward the ideal ar-
rangement. for the illegitimate by providing that a judgment in a
peternit aCtion establishes equality in support matters with legiti-
mate ousprmg of the fat.her.'~ Man~r statutes expressly provide that
tue mother must assist in providing, support, thereby continuing the
common law rule to that effect,.16 The length of time during which
supPort must continue ranges from ages twenty-one,'7 tweiity,'~
Mo. Ann. Stat. 539.333 (Supn. 1905), See James - V. Hutton, 373 S.W.2d
167 Ran. City. Mo. Ct. App. 1963). which refused to derive a civil liability from the crim-
inal sta:ute. ~s tar back as 1921. MissourI passed a law to give natural children the right
::eri: 17cm their fathers. This law, however, was never implemented and was repealed
e \ ~` Pateri i ` Garezai.siizp and \onsupport 12 Mo L Rev 32o (1947)
:~ L~~y v. Louisiana, 391 U.S. CS. 20 L. Ed. 2d 436 88 S. Ct. 1509 (1968) R.
431 S.W.24 132 (Mo. 1968).
Grc4-Conv. Graveon, 182 Ran. 285, 320 P.2d.303 (1958) found a nonstatutory duty to
tke::iegit;.-nate chIld; Annot., 30 A.L.R. 1069 (1924). See also Comment, Illegiti-
!~r~-Fat,c-s Dut;, To Support, 28 N.C.L. Rev. 119 (1049).
a B i a InC ~nn ~t t 3-623 (1968) 8 D Comp Laws 25-8-5 (1969)
-~ A; 0: tue iollowin~ statutes leave the level of support to the court's discretion: Ark.
Stat. Ann. 34-706 (1962) : Cob. Rev. Stat. Ann. § 22-6-5 (Supp. 1967) ; Conn. Gen. Stat.
Ann. , u2-442 (1968) ; Del. Code Ann. tit. 13, 5 1326 (Supp. 1968) ; D.C. Code Ann.
16-2349 (196~) ; Fla. Stat. Ann. § 742.041 (1967); Hawaii Rev. Stat. § 579-4 (1968)
Iowa Code Ann. § 6~o.25 (1966) ; Ran. Stat. Ann. .5 62-2312 (1964) ; Ky. Rev. Stat. Ann.
406.121 (Supp. 1968) ; Me. Rev. Stat. Ann. tlt .19, §5 275 281 (Supp. 1970) ; Md. Ann.
Code art. 16, .5 66H (1966) ; Miss. Code Ann. § 383-12 (Supp. 1967) : Nev. Rev. Stat.
§ 126.230 (1967) ; N.J. Stat. Ann. § 9 :17-12 (.1960) ; N.M. Stat. Ann. ~ 22-4-16 (Supp.
1969) N.Y. Fam. Ct. Act 513 (McKinney 1963) ; N.C. Gen. Stat. § 49-7 (1966) ND.
Cent. Code § 32-36-21 (1960) ; Ohio Rev. Code Ann. § 3111.17 (Page 1960) ; RI. Gen. Laws
Ann. § 15-8-10 (1970) ; Tenn. Code Ann. § 36-223 (Supp. 1969) ; Utah Code Ann.
77-60-7 (1953) ; vt. Stat. Ann. tit. 15, § 330 (1958) ; W. Va. Code Ann. 5 48-7-4 (1966).
In some cases, the child may be entitled to attorney's fees as part of his right of support.
See Spivock, Attorney Fees in Paternjtt, Cases, 21 Cal. S.B.J. 439 (1946).
:~Fla. Stat. Ann. 742.041 (1967), fixes the following monthly amounts that the judge
increase or decrease at his discretion: 0-6 years of age, ~40; 6-12 years of age, S60;
12-13 years of age, .590; 15-18 years of age, $110.
::~1ifln. Stat. Ann. § 237.23 (1965). imposes on the father all obligations Imposed on the
father of a legitimate child. Accord, Ariz. Rev. Stat. Ann. § 14-206 (1956). Va. Code Ann.
20-61.1 (1960) fixes the obligation of support, maintenance, and education of the child
as if the child had been born i~ lawful wedlock. Accord, Ill. Rev. Stat. ch. 106 .3/4, 52
(1970) ; Burns' md. Ann. Stat. § 3-624 (1968) ; Ky. Rev. Stat. Ann. 406.011 (Supp.
1908) ; Me. Rev. Stat. Ann. tit. 19, § 271 (Supp. 1969) ; N.J. Rev. Stat. § 9 :16-2 (1960).
See Stargell v. Stargefl, 263 Cal. App.2d 504, 69 cal. Rptr. 715 (1068).
1~ Me. Rev. Stat. Ann. ch. 19, § 257 (1965) ; Md. Ann. Code art. 16, 6611 (1966) ; Mich.
Stat. Ann, § 722.721 (1968) ; Miss. Code Ann, 383-15 (Supp. 1967). NebSaska enforces the
liability of the mother in much the same manner as that of the father, although the obliga-
tion will be enforced against the mother only where support cannot be secured from the
father. Neb. Rev. Stat. § 13-108 (1962). In Louisiana liability for the support of the child
extends to the mother's ascendants, La. Civ. Code Ann. art. 245 (West 1952).
:7 N.Y. Family Ct. § 545 (McKinney, 1963).
Hawaii Rev. Stat. § 579-4 (1968).
PAGENO="0236"
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eio~hteen,'9 sixteen.2° and fourteen,2' to such period of time as the child
is~ikely `to be unable to support itself,22 or to a period not exceeding
six years.23 The amount of time prior to judgment for which support
and similar payments may be awarded ranges from four years in
Kentucky 24 to ~ucii proportion of expenses already incurred as the
court deems just.25 There also are provisions that award the cost of
support froni the time of birth,26 and others that limit it to one year
next preceding the action.27 Elsewhere, the support obligation extends
beyond the father's death, with the proviso that the child cannot take
more than if he had been an heir.28 `Whether the support obligation
owed the illegitimate child extends to higher education is in doubt.29
Some States impose a legal duty to support a destitute parent of
the illegitimate child.3°
2. THE ILLEGITIMATE CHILD'S BIGHT OF INHERITANCE
At common law, in Blackstone's words, "[t]he incapacity of a
bastard consists principally in this, that he cannot be heir to anyone,
neither can he have heirs, but of his own body; for, being nulliu~ fihius,
he is therefore of kin to nobody, and has no ancestor from whom any
inheritable blood can be derived." ~` In older days, this disability was
the most serious consequence of illegitimate status and was seen as a
necessary byproduct of the uncertainty of illegitimate paternity.
Since the ~hi1d's relationship to his mother normally is beyond doubt,32
statutes have long provided in nearly all States that, in matters of in-
heritance, the illegitimate occupies the same position with respect to
his mother as a legitimate child.33 Residual statutory discrimination
`9Conn. Gen. Stat. Ann. 52-442 (1908) ; Fla. Stat. Ann. § 742.041 (1967) ; Mich. Comp.
Laws § 722.717 (1968) Ohio Rev. Code Ann. § 3111.17 (Page 1960) ; RI. Gen. Laws
Ann. 15-8-10 (1970) ; Tenn. Code Ann. § 36-229 (Supp. 1969) ; Utah Code Ann. § 77-60-7
(1953) ; Wis. Stat. Ann. §52.37 (Supp. 1969).
20 Ark. Stat. Ann. § 34-706 (1962) ; Del. Code Ann. tit. 13, § 1305 (1953) ; D.C. Code Ann.
§ 30-320 (1967) Iowa Code Ann. § 675.25 (1966) ; Miss. Code Ann. § 383-12 (Supp. 1967)
ND. Cent. Code § 32-36-21 (1960).
21 Ga. Code Ann. § ~4-303 (1904).
Cob. Rev. Stat. Ann. § 22-6-5 (Supp. 1967) ; La. Civ. Code Ann. art. 243 (West 1952);
TMcI. Ann. Code art. 10, § 66H (1966) ; Vt. Stat. Ann. tit. 15, § 339 (1958); W. Ym Code
Ann. 48-7-4 (1966).
23Mass. Ann. Laws ch. 273. § 5 (1968).
`~ Ky. Rev. Stat. Ann. § 406.031 (Supp. 1968) ; Mont. Rev. Codes Ann. § 93-2901-3 (1964)
(4 years).
25 Mich. Comp. Laws 722.717 (1968).
2OND Cent. Code § 32-36-21 (1960).
27 Miss. Code Ann. § 383-03 (Supp. 1967).
~ Burns' md. Ann. Stat. § 3-629 (1068) (support, not more than heir) ; MO. Ann. Code
art. 16, § 66J (c) (1966) (child is limited to one-half the sum a legitimate child would re-
ceive) ; bNev. Rev. Stat. § 126.070 (1907) (no limitation, left to discretion of the court)
S.D. Comp. Laws § 25-8-33 (1909) (no limit, left to discretion of the court) ; lVyo. Stat.
Ann. § 14-64 (1965) (no limit, left to discretion of the court).
29 Cf. H. Clark, Domestic Relations 497-98 (1908), discussing this question in terms of
the legitimate child's right to higher education.
20 Alaska Stat. § 25.20.030 (1962) : La. Civ. Code Ann. art; 240 (West 1952). See Com-
*ment, Duty of an Illegitimate Child to Support Its Destitute Mother, 46 Yale L.J'. 875
(1937).
ill \V. Blackstone, Commentaries on the Laws of England 485 (W. Kerr, London 1857).
~ Except in Louisiana. Reflecting French suspicion in such matters, Louisiana law still
requires *that the mother must acknowledge her maternity so that her child, horn out of
wedlock, can come into a legally recognized relationship with her. See Comment, What Effect
Has Proof of Maternity, 6 La. L. Rev. 268 (1945). But see, Levy v. Louisiana, 391 U.S.
68, 20 L. Ed. 2d 436, 88 S. Ct. 1509 (1968) Gbona v. American Guarantee & Liability Ins.
Co., 391 U.S. 73. 20 L. Ed. 2d 441, 88 S. Ct 1515 (1968).
23E.g., Ala. Code tit. 16, 7 (1959) E~y. Rev. Stat. Ann. § 391.090 (1963) ; Mich. Stat.
Ann. § 702.81 (1968) ; Mo. Re'c. Stat. § 474.060 (1959). See generally Note, 26 Brooklyn L.
Rev. 45, 74-84 (1959), as to the illegitimate's inheritance rights.
PAGENO="0237"
229
between kgitirnate and i11egitim~te offspring with respect to inheri-
tance from the mother is very i~mcommon.34
In most States. however, the illegitimate child still cannot inherit
from his father. other than by will.3 Few States have enacted statutes
permitting the illegitimate child to inherit from his father as if the
child were legitimate.° Some ground has been occupied between these
extreme positions. Thus~ the. iithe~itance laws of a substantial number
of States specifically provide that., the child may inherit if the father
sul)sequently marries the mother~ and acknowledges the child.sr Of
course, even in States that do not expressly provide this in their inherit-
ance statutes. such a child would have been legitimated by his parents'
marriage and normally would be entitled to inherit for that reason. A
few States would give the child his inheritance on the basis of a judg-
inent in a paternity suit.H Mere acknowledgment or recognition of
the child on the part of the father, by some laws required to be in writ-
ing and before a competent witness, may or may not r~ suffice; some-
times it is effective only if the father actually had the intent to give the
child the capacity to inherit.4' The father's admission of paternity in
cpen court may have the same effect..42 Louisiana permits the "natural
child" to inherit from his father. but only if there is no other heir.43
The next question is whether the illegitimate child may inherit
from maternal and paternal ~randparents and from collateral kindred.
Sct La. Civ. Code Ann. art. 918 (West 1952). A view of the various forms SUCh legisla-
tro~. nov~ primarily of historical interest. is given in Comment, Inlieritanace By, From
cad rroui7h Ilicg:tirnatCs, S4 t. Pa. L. Rev. 531 (1936).
~icc, e.g.. Hawaii Rev. Stat. 557-14 (1968) W. Va. Code Ann. § 42-1-5 (1966).
Ar::. kiev. Stat. Ann. 14-20GB (1956) ;. cal. ProP. code § 255 (West, Supp. 190S)
Barr.s' Inc. Ann. Stat. § 6-207 (1953) Iowa Code Ann. § 633.222 (1966) Miss. Code Ann.
3a3-12(e) (Supp. 1967) (allows the court upon Onding paternity to order inheritance
eCuni to that of a natural child) : Ore. Ret. Stat. § 109.060 (1969) ; P.R. Laws Ann. tit. 31,
441 (1908) : lean. Code Ann. § 36-234 (Supp. 1969) : Vt. Stat. Ann. tit. 14, § 553 (Supp.
1970~. Indiana and Tennessee require that paternity must be established during the father's
lifetime: As late as 196°. a Tennessee court went as far as to hold unconstItutional the
statute (cited herein) giving the illegitimate a right to inherit from his judicially ascer-
tamed father. Yovng v. Willis, 58 lena. App. 678, 436 SW. 20 445 (1968). See Annot., 12
A.L.R.3d 1140 (1967).
See, e.g., Miss. Code Ann. § 474 (1957) N.J. Stat. Ann. 3A :4-7 (1953) which pro-
vides that for the purposes of descent and distribution, a child shall be treated as legitimate
if his parents "marry subsequent to his birth anti recognize and treat him as their child
In one case. the statute was construed to include the legislative scheme for legitimation of
children born of bigamous and void marriages~ L. v. L.. 92 N.J. Super. 118. 222 A.20 297
1936) : contra, In re \Veeast. 72 N.J. Super., 325, 178 A.2d 113 (Burlington County Ct.
19fl2~ in which the word "marry' was construed to mean "valid marriage" and was held
not to include a ceremonial, bigamous mnrria:e.
Burns' lad. Ann. Stat. § 6-207(b) (1953) provides that for purposes of inheritance, an
Illegitimate child shall he treated as a leritimate child if "paternity of such child has been
established by law, during the father's lifetime The term "established by law" has
b~en interpreted by the Indiana courts to mean established In a court of law. Acknowledg-
inent without marriage is alone not sufficient to legitimate the child no matter how positively
or how often the acknowledgment is made. Thacker v. Butler. 134 md. App. 376, 154 N.E.2d
894 (1962). Cruz v. Celebrezze, 255 F. Supp. 665 (ED. WIs. 1960). See also Miss. (`ode
Ann. § 383-12(e) (Supp. 1967) ; Tenn. Code Ann. § 36-234 (1909) Wis. Stat. Ann. § 237.06
(Supn. 1969).
~ Cal. Prob. Code § 255 (West Supp. 1968) Fla. Stat. Ann. § 731.29 (1967) ; Idaho Code
Ann. § 14-104 (1948) ; Minn. Stat. Ann. § 525i172 (Supp. 1967) : Mont. Rev. Codes Ann.
91-404 (1964) Nev. Rev. Stat. 134.170 (1967) ; ND. Cent. Code § 56-01-05 (1960)
Okla. Stat. Ann. tit. 84. § 215 (1961) ; Wash. Rev. Code Ann. § 11.04.080 (1961) ; Wis. Stat.
Ann. 1 237.06 (Supp. 1909).
4~Del. Code Ann. tit. 13, 1304 (Supp. 1908).
4 N.M. Stat. Ann. § 29-1-18 (1954). This requirement, of course, brings the matter close
to a will.
~ Wis. Stat. Ann. § 237.06 (Supp. 1969).
`~ La. Civ. Code Ann. art. 919 (West. 1952). A "natural child" in Louisiana is one who has
been acknowletleed by his parents. Id. In Succession of Therlot, 185 So.2d 361 (La. App.
Ct. 1966) it wa~held that an Illegitimate child acknowledged only Informally by his deceased
father could not Inherit from him ahead of ascending and collateral relatives. See infia PP.
90, 91.
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The answer is that statutes permitting inheritance from the mother's
family 44 are more frequent than those permitting inheritance from
the father's side.4~ As to inheritance from the illegitimate himself,
there is no question about his own issue. If he has no issue, the mother
and her line usually will take,4° and there may be a specific prohibition
against the father and his }ine.~' Uncommon are provisions permitting
the father to inherit,~~ and statutes passing property from the illegiti-
mate to the father's family.49
Another vehicle of discrimination is the definition of "heir,"
"descendant," "child," "issue," and similar terms under statutes ~° as
well as under private instruments such as wills and trusts. Often, or
even usually,, these terms have been construed by courts to refer to
legitimate children only.~' Moreover, especially in interpreting wills
and trusts, the courts do not always concern themselves with the testa-
tor's or settior's actual intent but often apply a fiat exclusion that may
defeat the giver's clearly evident desires.52
3. CUSTODY AND GUARDIANSHIP
If she is a suitable person, the mother of the illegitimate child
is entitled to its custody and guardianship.~~ She is considered to be
~° Idaho Code Ann. 14-104 (1048) (only if parents marry and acknowledge) ; Ill. Rev.
Stat. ch. 3, § 12 (1970) : Mass. Ann. Laws ch. 190, § 7 (1009) ; Mich. Stat. Ann. 702.Sl
(1068) ; Mo. Rev. Stat. § 474.060 (1959) ; Mont. Rev. Codes Ann. § 91-404 (1064) (only if
parents marry and. acknowledge) ; Neb. Rev. Stat. § 30-109 (1964) (only if parents marry
and acknowledge) : Ohio Rev. Code Ann. 2105.17 (Page 1968). See also Annot., 97
A.L.R.2C1 1101 (1064).
45Arlz. Rev. Stat. § 14-206 (1956) Nev. Rev. Stat. § 134.170 (1067) (if the father has
acknowledged the child). The following provisions require marriage of the parents and
acknowledgment of the child Idaho Code Ann. § 14-104 (1048) ; Mont. Rev. Codes Ann.
§ 91-404 (1964) Neb. Rev. Stat. 30-109 (1064). Comment, Legitimation-_Right to In-
herit from Collateral Kindred of Father, 23 S. Cal. L. Rev. 278 (1950).
48Ala. Code tit. 16 § 8 (1959) ; Alaska Stat. § 13.10.040 (1962) ; Cob. Rev. Stat. Ann.
§ 153-2-11 (1964) ; D.C. Code Ann. § 19-316 (1967) ; Fla. Stat. Ann. § 731.29 (1967)
Hawaii Rev. Stat. § 532-7 (1968) Idaho Code Ann. § 14-105 (1048) ; Iowa Code Ann.
§ 633.221 (1966) Ky. Rev. Stat. Ann. 391.000 (1063) Mass.. Ann. Laws ch. 190. § 6
(1969) : Mich. Comp. Laws § 702.82 (1068) ; Mo. Rev. Stat. § 474.060 (1959) ; Mont. Rev.
Codes Ann. 91-405 (1064) ; Nob. Rev. Stat. § 30-110 (1965) : Nev. Rev. Stat. 134.180
(1967) ; Okia. Stat. Ann. tit. 84, § 216 (1061) S.C. Code Ann. § 10-53 (1962) ; S.D. Comp.
Laws § 29-1-16 (1069) ; Tenn. Code Ann. § 31-105 (1055) ; Utah Code Ann. § 74-4-11
(1953) ; Vt. Stat. Ann. tit. 14, § 553 (Supp. 1970) ; Wash. Rev. Code Ann. 11.04.081
(1967) : Wis. Stat. Ann. § 237.05 (Supp. 1069) ; Wyo. Stat. Ann. § 2-38 (1959). ~f. Com-
ment. Right of Illegitimate Aunt to Inherit From Intestate Nephew, 40 Ill. B.J. 289 (1052).
4'Ky. Rev. Stat. Ann. § 391.090 (1963).
48 Burns' md. Ann. Stat. § 6-207 (1053) ; N.M. Stat. Ann. 20-1-19 (1954) (mother and
her heirs are given preference, however) : N.Y. Est., Powers & Trusts Law 4-1.2 (Mc-
Kinney 1967) : ND. Cent. Code 56-01-05 (Supp. 1969) Okla. Stat Ann, tit. 84, § 216
(1961) (if father married mother and acknowledged child). Iowa also provides for mutual
recognition, as a condition to the father's right to inherit. Iowa Code Ann. § 633.222 (1966).
~° Burns' Ind. Ann. Stat. § 6-207 (1953) : N.M. Stat. Ann. 29-1-19 (1054) ; ND. Cent.
Code 56-01-05 (Supp. 1969) ; Ore. Rev. 5tat. § 109.060 (1969).
5° ~~`ee infra. pn. 36-41.
~` H. Clark, Domestic Relations 179 (1968). For an historical summary see Comment,
The Effect of ~Ptatiites Altering the Position of Illegitisnate Children on. Judicial Construc-
tion of Wills, 45 (Harv. L. Rev. 890 (1932).
52E.g., Wilson v. Ingram, 207 Ga. 271. 61 S.E.2d 126 (1050).
~3 E.g., Ga. Code Ann. § 74-203 (1964) ; N.J. Rev. Stat. § 9 :16-1 (1960): Wash. Rev.
Code Ann. 26.24.100 (1958). ~Pee also Annot., 98 A.L.R.2d 417 (1964). In McMillan v.
McMlllan. 224 Ga. 790, 164 S.E.2d 839 (1968), a mother with two other illegitimate
children living with her was held to be entitled to the custody of her illegitimate child
against her parents after the latter had taken care of tile child for some ten years with little
support from tile mother. Cf. NorcIa v. Richard. 32 App. Div. 2d 656. 300 N.Y.S.2d 60.S
(1969). Lower court's holding awarding custody to father reversed in favor of mother since
"the mother of an illegitimate child is prima facie entitled to custody." Other cases em-
pliasiue that in a custody case. "lilt is basic and fundamental that the paramount consul-
oration is the welfare of the children and that all other considerations, including the rights
of parents, are subordinate to tile children's physical, intellectual, moral, spiritual and emo-
tional well-being." Commonwealth ca gel. Staunton v. Austin, 209 Pa. Suner. 187, 190. 223
A.2d 592, 894 (Super. Ct. 1966). However, since it is presumed to he in tile best interest of
a child of tender age to he in the custody of its natural mother, her right to the custody
of her child is superior to that of all other persons. These rules apply to the custody of
leritimate as well as illegitimate children. In re Neff. 189 Pa. Super. 370, 376, 150 A.2d
5(13. Sf16 (1939). Fee also In re T.. 8 MIch. App. 122. 154 N.W.2d 27 (1967) ; Cornell v.
Hartley, 54 Misc. 2d 732, 283 N.Y.S.2d 318 (Farn. Ct. 1967).
PAGENO="0239"
231
the child's "natural guardian" aiid some statutes express the common
law rule that the mother is entitled to the services and earnings of her
illegitimate child.54 Borrowing from the rules applicable to the cus-
todv ot leg~t~mate children,55 a few courts speak of the father's right
to the custody of his illegit.inmte. child. VVhile the father's "right"
alw'-ays 1S subordinate to the mother's custodial r~ghts~ it may become
cji~ei'~tj1~e if the mother haS relinquished the child for~ adoption or if
sue ~s unsuitable. deceased or otherwise unable to have custocly.a6 Some
statutes and courts.~ on the other hand, flatly forbid any custodial
right, to be exercised by the father. Between these extreme positions,
many cases have adjudicated the issue of pateriial custody on the basis
of the flexible standard of the child's best interests ~ with results that
often appear contradictory-perhaps because appellate reports cannot
pr0~~de the full flavor of the circumstances that went into making
the deciston. Thus. not. long ago. the Court of Appeals of Maryland
refused to urrant custody to the 21-year-old father of an illegitimate
dh~id who. having the full support of his economically well-off, middle-
class parents. sought. to adopt the child when the 19-year-old mother
had given their child to an adoption agency `for adoption by strang-
ers:~ Many other cases has-c heen~ decided in the father's favor.6' A
S.D. Comp. Laws 25-5-7 (1969) : Cal. Civ. Code 200 (West, 1954).
Concerning the rights of the natural, legitimate parents some doubts were raised a few
years arc when Iowa's Supreme Court refused to grant custody of a seven-year-old boy to
his father v-he had remarried. The court concluded that the child's best interests would
he serve-i if permanent custody were granted to his maternal grandoarents who had been
asked ly the toys father to take care of the boy after the mother's death. The court noted
rho ~r:~ndnersnts had riven the boy "a stable, dependable, conventional, middle-class,
ni:oce-a~ee: ~)ackrround.' whereas the boy's life with his father would be "unstable, uncon-
h°miea. and probabty intelectually stimulating." Painter v. Bannister.
1t~). 140 X.W.2d 152. cert. den ed, 385 U.S. 949, 17 L. Ed. 2d 227. 87 S. Ct. 317
In the erririme. however. the boy is back with his father. See Couch, Book Review,
":uth.ILa:eiot."2Fam.L.Q.436 (1968).
rho death of the :aother of an illegitimate child, and absent intervening adoption.
Ii a i tie w lfa e of the hdd perm t s eat t d +o c stodv and
ccn:rr.l over the chili as against all others." In cc Estate of Moore. 68 Wash. 2d 792. 797,
415 P.2d d52. 656 (19161. Ac-cord, Caruso v. Superior Court, 100 Ariz. 167, 412 P.2d 463
(laGS. "As against the rirht of the mother of an illegitimate child to Its custody, the puta-
tive father may defend only on the ground that the mother, by reason of character or special
circumstances. is unfit or unable to have the care of her child and that, for this reason, the
welfare. or best interest, of the child overrides her paramount right to custody." Jolly V.
Queen. 264 XC. 711, 714. 142 S.E.2U 592, 595(1965). See also In se Mark T., 8 Mich. AnD.
122. 154 X.W.2d 27 (19671.
Ill. Rev. Stat. ch. 106 3/4, § 62 (1970), provides *that a father of an illegitimate
child "shall have no right to the custody or control of the child" except by adontion. A
recent TliInOI5 case holds tlìat a. putative father cannot be granted visitation rights with
his illegitimate child because visitation rirhts of necessity involve "control." DePhillips v.
DePhillips. 35 Ill.2c1 154. 219 XE.2d 465 (1966). The lone dissenter. C. J. Klinghiel.
argued: "Neither the language of our statute nor any sensible interpretation of `policy'
~ustifics this court in depriving a putative father of the society of his child under any and
nil circumstances." Ic!. at 159. 219 X.E.2d at 46S (19661 (dissenting opinion). Wullace v.
Wallace. dO Ill. App. 2d 300, 210 N.E.2d 4 (1965). Similarly, Utah Code Ann. § 77-60-12
(1953) (at least not until the child is ten).
~In cc Adontlon of A, 226 A.2d 523 (Del. 1967). The putative father and his wife (not
tiic' child's mother) were denied adoption of his illegitimate child. The court held that the
father does not (`von have a richt to he notified of the adoption proceedings involving his
child. Similarly, Hall v. Hall, 222 Ga. 820, 152 S.E.2d 737 (1966).
us "- , . F" In award of custody of an illegitimate child to the admitted father as against
the claims of relatives and welfare agencies may be approved under circumstances where the
mother reiects the child and the nutative father is comnetent to `care for and suitable to
take charge of `the child; but such rirhts of custody must always he subordinstel to the
best inte'm.sts end welfare of the child." In cc, Welfare of Zink, 269 Minn. 535, 540, 132
N.W.2d 795. 793 (1964). gee also authority cited .supra note 56.
50Petitlon of Malmstedt, 243 Md. 92. 220 ~.2d 147 (1966). The Maryland Court of
Anneals refused to grant the father of an illegitimate baby permission to adont the child
even though the mother did not wont to keep her. The mother turned the lnfnnt, over to
an adoption agency three dnvs tufter birth. Accord, In cc Adoption of Irby, 226 Cal. App.
2c1 238. 37 Cal. Rptr. S79 (1964).
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232
recent New York decision. for example, awarded two children to their
illegitimate father after it rejected the presumption in favor of the
mother, held the mother unfit and held further that no distinction
should be made between legitimates and illegitimates in custody
matters.62
4. THE FATHER'S VISITATION RIGHTS
Short of custody, the question arises whether the illegitimate father
may see his child from time to timeS whether he has a right of visita-
tion. Obviously, if the mother permits visitation, no case will develop.
The discussion that follows therefore concerns the question whether
the father should be allowed visitation when the mother objects. In
this regard, specific statutory direction is scant. On the basis of the
Illinois statute which denies the father the right of "custody and con-
trol," visitation has been categorically denied a father who had regu-
larly contributed to the support of his child. Under that statute, no
investigation into the fitness of the father or the welfare of the child
is considered necessary or even permitted.63 On the other hand, a lead-
ing Pennsylvani:1 case granted visitation rights to a father who had
regularly contributed to his child's support on the basis of weighing
the welfare and the best interests of tile child.64 Numerous other cases
have gone both ways on this difficult question.65
5. CONSENT TO ADOPTION
One crucial aspect of adoption is the question of parental consent.
With regard to illegitimate children, solely the mother's consent is
~ See, e.g., Godinez v. Russo, 49 Misc. 26 66, 266 N.Y.S.26 636 (Fam. Ct. 1966) and
Balint v. Horvath, 5 Ohio Misc. 242, 34 Ohio Op. 26 247, 212 N.E.2d 200 (1965). In
Godinez, custody of two Illegitimate children was awarded to the father where the mother
was considered unfit, the court deciding that the presumption in the mother's favor should
be abolished and that no distinction should be made between legitimate and illegitimate
children in questions of custody; in Balint it was held that under statutory adoption
procedures in Ohio. the natural father must be served with notice. Cf Larkin v. Pridgett
et Va'. 241 Ark. 193, 407 S.W.2d 374 (1966), which denied the mother custody of her
illegitimate child as against the father's parents, where the mother had left the child
with the latter when the child was 1'/~ years old, for a period of `three years.
~ Anonymous v. Anonymous, 56 Misc. 2d 711, 289 N.Y.5.2d 792 (1968); cf James v.
Bowen, 224 Ga. 289, 161 S.E.2d 277 (1968).
CS i~npra, note 57.
°41n commonwealth v. Rozanski, 200 Pa. Super. 397, 213 A.2d 155 (1965), the putative
father was allowed visitation privileges when his illegitimate child was in the mother's
custody. This decision overruled a case decided by `the same court earlier in the year. The
earlier case-Commonwealth cv rel. Golembewski v. Stanley. 205 Pa. Super. 101, 208 A.2d
49 (1965)-stood for the proposition that a putative father could not be granted the
privilege of visiting his illegitimate child when In the mother's custody. In Rozanshi, how-
ever, the court held that it is proper for the courts, in the appropriate circumstances. to
grant visitation privileges to a putative father. The court went on to say: ". . . in any case
involving visitation, neither the fact of illegitimacy nor the personal preferences or prej-
udices of the parents should control our decision. The governing criterion must always
be the welfare and best interests of the child." Rozanshi. supra at 400. 213 A.2d at 156.
~ Cornell v. Hartley, 54 Misc. 2d 732, 2S3 N.Y.S.2d 318 (1967) (allowed the father a
right of visitation "provided the mother consents") : Mixon v. Mize, i98 So.2d 373 (Flu.
Apu. 1967) (putative father who had amply supported child granted reasonable right of
visitation over mother's objection). See Annot.. 15 A.L.R.3d 887 (1967). discussing right
of putative father to visit illegitimate child: Note, Domestic Relations-Illegitimate
Child-Visitation Rights G~ranted to Putative Father, 26 Albany L. Rev. 335 (1962)
Comment, A Father's Right to Visit His Illegitimate Child, 27 Ohio St. L.J. 738 (1966).
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normally required.~' If the mother is very young, her parents or
~uardian must consent.~ The mother's consent may be dispensed with
if her parental rights have been judicially terminated, if she has pre-
viouslv relinquished the child to an authorized agency for adoption, or
if she has abandoned it.65
The father of an illegitimate child typically is not involved in the
adoption process.69 Indeed, not only is his consent not required, but
he is usually not even entitled to notice of the adoption proceeding or
to be heard in it.7° In some instances, however, the father's consent may
be required or he may be entitled to notice of a pending adoption pro-
ceedtflg and to be heard.7' especially where he has adequately con-
trtbured to the support of the child.7' or where paternity has been
estabiished yc a court.73 `Where the child has been legitimated ~` or
acknowledged.7' the father gains full paternal rights~' He may not,
however, attack a consent previously given by the mother.76
6. THE CHILD'S NAME
The illegitimate child usually bears his mother's name. It is said that,
long ago. a Norman father who wished to recognize his bastard son
would confer on him his name preceded by the prefix "Fitz." Today,
however. nrovision is rarely made permitting the illegitimate child to
bear his father's name,7' absent a subsequent marriage between his
parents. Nevertheless, some courts have allowed the illegitimate child
to change. its name. For example, a recent New Jersey case allowed a
minor, out-of-wedlock child to change its name from that of its mother
to that of its married natural father. Despite objections from the
father's wife. the court granted the name change, since it saw no
.5cc, Ariz. Rev. Stat. Ann. 8-103 (Supp. 1969) ; Cal. Civ. Code 224 (West Supp.
lOGS) D.C. Code Ann. 16-304(b) (1967) ; Ky. Rev. Stat. Ann. 199.500 (1063) ; N.Y.
Dom. Rel. Law § ill (McKinney Supp. 1970),; Ore. Rev. Stat. 109.326 (1969) ; Pa.
Stat. tit. 1, 2 (1063) ; Tenn. Code Ann. 36-111 (1055) ; Wash. Rev. Code Ann.
26.32.030 (1955: Wis. Stat. Ann. 4S.S4 (Supp. 1969) ; Wyo. Stat. Ann 1-714
(1059). The mother's right to the child's custody "implies the right to full control over
the cbi6. ~nchi6ing the power and right to place it with others for adoption," to the
exclusion of any ri~ht the father might have by virtue of his paternity. In re Guardianship
cf Trusch3ce. 237 Cal. App. 2d 75. 4(3 Cal. Rptr. 601 (1965).
~ Mina. Stat. Ann. 259.25 (1965) (if mother is under 18). Cf. Wolf v. Gardner,
35(3 F.26 205 6th Cir. 1067) Perez v. Gardner, 277 F. Supp. 085 (E.D. Wis. 1967).
~` Roark v. Yarborough, 411 S.W.2d 916 (Ky. 1966). See Cal. Civ. Code ~ 224 (West
Supp. 190Sl; Ga. Code Ann. § 74-403(3) (Supp. 1960) ; Hawaii Rev. Stat. § 578-2
(lOGS) : Neb. Rev. Stat. § 43-104 (1968) ; Pa. Stat. tit. 1, § 2 (1963) ; Wash. Rev. Code
Ann. i 26.32.030 (1961).
~ Note. Disposition of the Illegitimate Child-Father's Right to Notice, 1968 II. Ill. L.F.
232 (Summer 1068). See generally Comment, Father of An Illegitimate Child-His Right
To Be Heard, 50 Minn. L. Rev. 1071 (1966).
~° See, eq., In re Adoption of A, 226 A.2d 823 (Del. 1967). See also Hall v. Hall, 222
Ga. 820, 152 S.E.2d 737 (1966).
71 Iii rc Brennan. 270 Minn. 455. 134 N.W.2d 126 (1065) ; Note, Father of an Illegitimate
Child-His Right to be Heard, 50 Minn. L. Rev. 1071 (1066).
72 Burns' lad. Ann. Stat. § 3-120 (Supp. 1970) (the court will consider the father's
objections).
nArk. Stat. Ann. § 56-106(c) (1948) ; cf. Ariz. Rev. Stat. Ann. § 8-103 (Supp. 1969)
ND. Cent. Code (14-11-10 (1960).
`~ Tenn. Code. Ann. § 36-111 (1955).
Ariz. Rev. Stat. Ann. § 8-103 (Sup~p. 1969). Where paternity has been adjudged or
acknowledged, father must be notified. N.D. Cent. Code § 14-11-10 (1960).
76 Cf., In re Adoption of a Minor, 338 Mass. 635, 156 N.E.2d 801 (1959).
7' W. Hooper. Illegitimacy 6-7. 122-24 (1911).
7' If the father consents, his child may take his name. Ga. Code Ann. §~ 74-103, 88-1111
(1964). Similarly, where the child is voluntarily legitimated. Ala. Code, tit. 27, § 12
(1068). Tenn. Cede Ann. § 30-229 (Supp. 1969), empowers the court, upon finding pater~
nity. to change the name of the child. To the same effect is Wash. Rev. Code Ann.
§ 26.24.100 (195S). Where paternity has been declared, at least one court has held that
the mother and child have a right to take the father's name. In re Biegaj, 2o N.X.S.2d So
(1041).
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worthy motive, the possibility of fraud on the public, or the choice
of a name that is bizarre, unduly lengthy, ridiculous or offensive to
common decency and good taste." ~
7. Biirni RECORDS
Where paternity is clear, the original birth record may show the
father's name even though paternity has not been formally estab-
lished.80 Upon legitimation, whether through the marriage of his par-
ents or otherwise, many States allow the child to have his birth records
changed so as to delete any open reference to his former illegitimate
status.8' The father's acknowledgment, in addition to the marriage, is
a common condition.82 In a number of States, the original birth certifi-
cate may be amended or a new certificate is issued when paternity is
established.83 A State may provide that a new, revised certificate may
not be identified as amended.84 To prevent the information that a child
was born out of wedlock from becoming generally available, many
statutes specifically provide that all official proceedings relating to the
child's status must remain confidential.85 The same rule often is appli-
cable to adoption proceedings, where papers may not show the status
of the child,80 and where a new birth certificate will be ssued upon
completion of the adoption.8'
8. THE FATHER'S TORT LIABILITY TO His ILLEGITIMATE CHILD-THE
"WRONGFUL LIFE CASES"
The modern tendency to try to help the illegitimate is illustrated
graphically by the "wrongful life cases." Zepeda v. Zepeda,88 the first
701n ye N., Di N.3. Super. 296, 298, 219 A.2d 906, 901 (1966). See Gordon v. Cole, 54
Misc. 2d 967, 283 N.Y.S.2d 7S1 (1967).
nlowa Code Ann. § 675.36 (1966). But see Conn. Gen. Stat. Ann. 7-50 (1966)
N.Y. Pub. Health Law § 4135 (McKinney 1954).
~1 E.g., Alaska Stat. § 25.20.050 (1962) ; Fin. Stat. Ann. § 382.21 (1967) : Md. Ann.
Code art. 43. § 19 (1965) ; Mo. Rev. Stat. § 193.260 (1959) ; Mont. Rev. Codes Ann.
69-4424 (1970) ; Nev. Rev. Stat. (440.320 (1967) Ore. Rev. Stat. (432.425 (1969)
Wash. Rev. Code Ann. § 70.58.095 (Supp. 1970). In a number of states, including Utah,
a supplementary birth certificate is issued upon legitimation, and no information may
thereafter be given from the original certificate, except on request of the person legiti-
mated. Utah Code Ann. 26-15-16 (1969). In the following jurisdictions no reference to
illegitimacy is permitted on birth records: Conn. Gen. Stat. Ann. § 7-SO (1966) : D.C.
Code Ann. § 6-301 (1967) ; N.Y. Pub. Health Law § 4135 (McKinney 1954) ; W. Vu.
Coile Ann. § 16-5-19 (1966). The law of of several states is discussed in Kiesow. An
Amended Birth Certificate for Legitimated Children in Kansas, 18 J.B.A. Kan. 215 (1950).
a D.C. Code Ann. 16-2353 (1967) ; Ore. Rev. Stat. § 432.425 (1969) ; Wyo. Stat.
Ann. i 35-60 (1959).
mArk. Stat. Ann. § 82-519 (Supp. 1967) : Cob. Rev. Stat. Ann. 66-8-13 (Sunp.
1967) : D.C. Code Ann. ii 16-23S3 (1967) ; Iowa Code Ann 675.36 (1966) ; Tenn. Code
Ann. 36-234 (Snpn. 1964) Va. Code Ann. § 32-353.24 (1969).
ava. Code Ann. §32-353.24 (1969).
~ Iowa limits references to illegitimacy to birth records and court proceedings where it
Is at issue. Iowa Code Ann. 675.35 (1966). In Missouri, disclosure of status may be
made only upon court order or upon request of individual concerned. Mo. Rev. Stat.
193.240 (Supp. 1967) accord, Cob. Rev Stat. Ann. § 66-8-17 (Supp. 1967) ; Del.
Code Ann. tit. 16. § 3110 (1953) ; D.C. Code Ann. § 16-2354 (1967) ; Ga. Code Ann.
(88-1124 (1963) : Hawaii Rev. Stat. (338.18 (1968) ; Burns' lad. Ann. Stat. (3-649
(1968) ; Kan. Gen. Stat. Ann. 65-2422(2) (1964) : La. Rev. Stat. Ann. (40 :158
(1950) : Mich. Stat. Ann. i 25.505 (1957) : Nov. Rev. Stat. §( 126.370. 440.170 (1957)
N.H. Rev. Stat. Ann. 126 :7 (1964) : N.M. Stat. Ann. §22-4-26 (1954) N.D Cent.
Code § 32-36-35 (1960) ; S.D. Comp. Laws § 25-8-46 (1967); Penn. Code Ann. 36-236.
(Suon. 1969) ; Tex. Rev. Civ. Stat. art. 4477, rule 47A (1960) ; Wyo. Stat. Ann. 14-94
(196a).
~0 Ga. Code Ann. (88-1110 (1963) Kan. Gen. Stat. Ann. (65-2424 (1964) ; Mass.
Ann. Laws ch. 2~O. § 2 (1955) ; Miss. Code Ann. (1269-03 (1957) ; N.Y. Dom. Rel. Law
§ 114 (Supp. 1970) ; N.C. Gen. Stat. § 48-13 (1966) ; Vt. Stat. Ann. tit. 18, § 5081
(1968).
S7Md Ann. Code art. 43. 19 (1965).
S84~ Ill. Apn.2d 240. 190 N.E.2d 849, (1963), cert. denied 379 U.S. 945, 13 L. Ed. 2d
545, 85 S. Ct. 444 (1964).
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such case, was decided in Illinois in 1963. In that case, the plaintiff
child argued that his father's act in giving him life as an illegitimate
was really a tort and that.. as a tort, the act should be compensable to
the extent of the difference in monetary value between illegitimate and
legitimate status. The court was receptive to the argument and actually
held that the father's act was a tort.. After that display of courage,
however, the court. backed away from allowing a recovery because it
felt that to allow recovery would produce consequences of unmanage-
able dimensions. For example, the court worried about the case of a
black child suing its father for being born black rather than white.89
Subsequently, a similar case arose in New York. In that case, plain-
tiff alleged that it was the negligence of State authorities in failing
to nrevent. the insemination of its mother, a mental patient in a State
hospital. that. had resulted in the plaintiff's birth. Although the lower
coi:rE accepted the plaintiff's case., it was overruled on appeal.°°
As may be readily imagined, these cases provided food for thought
and comment.~ Most. of their utility, however, ended there. Tort law
does not. lend itself to this situation. Only to the extent that Zepecla
classified the illegitimate, father's act as wrongful, does it contain a
useful seed. Thus, if the father's participation in his child's illegitimate
conception was wrongful because he withheld legitimate status, it
would have been sensible to grant the child an order legitimating him
as to his father. This would have provided legal equality, which the
law is equipped to enforce. The conceptual problems that so hopelessly
frustrated the Illinois court arose `primarily because plaintiff had
es~:ed for more than legal equality.', that he had asked for dc facto
eciua]ity in terms of money damages measuring the difference between
his actual situation and that of~a legitimate~child.
Fortunately, developments in constitutional law a.re far more prom-
ising than the "wrongful life cases." `Important changes already have
been wrought in the law of some States. As will be shown below, legal
equality is only four dozen cases and a comprehensive new statute
away.
~ 1(7. at 200, 100 N.E.2d at 858. As amicus curiae, Professor Max Rheinstein exnertly
onnosed the plaintiffs argument. See Rhelnstei Ii. Rcc7itswidri~e. Erzengung so cazscli lichen
Lebcn.c-Ein neucr C-mod dclil:tischer Haftunp.9,'.,In: FESTSCHRIFT Fda FRITZ VON HIPPEL
;~`~ 70. GV.Pr'rTSTAG (j. Esser. H. Thieme eds. 1907) at 373. Uf. Chaffin v. Chaffin, 239
Ore. 374. 381-82. 397 P.20 771. 774-75 (1964).
"Xc~essnrlly then. a parent in performinc his duties of providing support, discipline
nuT ed~~cnti~n to his children must have wi~ic ~. discretion. Wealth or poverty, physical
strrnuth or wee1.:ne~s. widorn or mental incnnncity are not in themselves criteria for fixing
guidelines by which tile law judges tile performa~nce of parental duties.
"Physical, mental or financial weakness may cause parents to provide what many a
reasonable nsan would consider substandard maintenance, guidance. education and recrea-
tion for their children, and in many instances to provide a family home which is not
reasonably safe as a place of abode. But it would he clearly wrong to permit the minor
child to hold the parent liable for these unintended injuries. The wide scope of the family
life in day to day llving should not he subjected to the scrutiny of the courts for each
failure to exercise the care and attention that, Is required of one individual toward
annth~r ~s a member of the public."
50Willjsms v. State. 40 Misc. 2d 824. 200 N.Y.S.2d 953 (1965L ret"d 25 App. Div. 2d
9~0. 209 N.Y.S.2d 700 (19661, aff'd. 18 N.Y.2d 481, 223 N.E.2d 343. 270 N.Y. S.2d 8S5 (1960).
Cf. Pinkney v. Pinkney. 198 So.2d 52 (Fla. App. 1907), where the court held that. absent
Tcr~siative authority, the cause of action will not lie since "no one has an inalienable right
to he horn under one set of circumstances rather than another
Fo'ter & Freed. Children. and the Law, 2 Fam~ L.O. 40. 58 (1968) ; Note. Liability to
Bastard for Nerliaencc Resultinq in His Conception, 18 Stan. L. Rev. 530 (1900) Note,
1. aliUif'i of Possible Fathers: A ~upeort Rensedy of Illegitimate Children, 18 Stan. L.
Fey. 859 (1200) Note Illegitimacy, Rocicti' and the Law: A PrIvate Tort Remedy for a
PuJdic Problem, .30 S. Cal. L, Rev. 438 (1960) Note, The Infliction of Illegitimacn.' A
\ em Tort? 43 ND, L. Rev. 99 (1966) Note, Compensation for the Harmful Effects of
Illegitimacy, 00 Colum. L. Rev. 127 (1960).
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9. WRONGFUL DEATH ACTS
Some wrongful death acts provide expressly that legitimate and
illegitimate children stand in the same position in relation to their
mothers. Under these statutes, the mother may recover for the wrongful
death of her child and the child for the death of its mother.92 Other
statutes, although they do not contain express provisions, have been
so interpreted .in the courts.93 Not infrequently, a result favorable to
the illegitimate child or mother is achieved by reference in the wrongful
death act to an intestacy law which allows the child and the mother to
inherit from each other.94 What probably was the only modern Ameri-
can statute that still denied the illegitimate a right to recover for the
~wrongful death of his mother (and vice versa) was recently struck
down.95
With respect to the father, however, the picture is less comforting.
Some wrongful death acts expressly allow the illegitimate recovery 96
and others have been so interpreted.97 Under many statutes, however,
recovery, is not allowed. A reference to the intestacy laws usually is
fatal because the illegitimate generally may not inherit from his in-
testate father.98
10. WORKMEN'S COMPENSATION ACTS
The illegitimate child's situation under workmen's compensation
acts seems somewhat better than it is under the wrongful death acts.
There is no question with regard to the child's eligibility to recover
on account of its mother. With regard to the father, many workmen's
compensation acts expressly include illegitimate children in the defini-
tion of "child," ~ or provide that an illegitimate child may recover if
recognized Or acknowledged 1 or legitimated prior to the injury,2 or
acknowledged and dependent upon the deceased.3 Other statutes have
been interpreted'by the courts to cover illegitimates.4
11. STATE PENSION LAWS AND PRIVATE PENSION CONTRACTS
Similar to his situation under wrongful death and workmen's com-
pensation acts is the illegitimate's position under some State pension
52 Ga. Code Ann. 105-1300 (196S) ; Ga. Code Ann. § 74-205 (1964) (mother's right)
Md. Ann. Code art. 67, § 4 (Supp. 1969) ; Miss. Code Ann. 1453 (Supp. i967) ; S.C. Code
Ann. § 10-1953 (1962) (includes brother and sister).
°3See Annot., 72 A.L.R.26 1235 (1960).
94Idaho Code Ann. § 5-311 (1948) Iii. Rev. Stat. ch. 70. 2 (1970) : N.J. Stat. Ann.
~ 2A :31-4 (Supp. 1969). See Marshall v. Industrial Commission, 342 Ill. 400, 174 N.E.
.534 (1930), interpretIng the Illinois statute.
~ Levy v. Louisiana, 391 U.S. 68, 20 L. Ed. 2d 436, 88 S. Ct. 1509 (1968) : Glenn v.
American Guarantee & Liab. Ins. Co., 391 U.S. 73, 20 L. Ed. 26 441, 88 S. Ct. 1515 (1968).
55Wis. Stat. Ann. § 895.03 (1967).
~` Armijo v. Wesselius. 73 Wash.2d 716. 440 P.26 471 (1968).
~ But cJ. Krantz v. Harris. 40 Wis. 26 709. 162 N.W.2d 028 (1968).
~ Minn. Stat. Ann. 170.011 (SanD. 1966); N.J. Stat. Ann. I 34 :15-13(f) (Supp.
1969) ; Nev. Rev. Stat. § 616.510 (1957) ; Ore. Rev. Stat. § 656.002 (1969).
`Ark. Stat. Ann. 81-1302 (1960) Ga. Code Ann. § 114-414 (1956) ; Hawaii Rev.
Stat. 386-2 (1908) : Idaho Code Ann. § 72-305 (Supp. 1969) : Burns' [nil. Ann. Stat.
§ 40-1403a (1905); Ky. Rev. Stat. Ann. 1 342.085 (19691; La. Rev. Stat. Ann. § 23 :1021
(West 1904) : N.M. Stat. Ann. § 59-10-12.11 (Supp. 1969) ; N.Y. workmen's Comp. Law
§ 2(11) (McKinney 1965) ; S.C. Code Ann. § 72-6 (1962) ; Vt. Stat. Ann. tit. 21, § 601(2)
(1907) : Va. Code Ann. 1 65.1-66 (19681.
Mont. Rev. Codes Ann. §92-417 (Supp. 1969) ; Wash. Rev. Code Ann. § 51.32.005
(Supp. 1970).
3Alaska Stat. § 23.30.265(4) (1962) : Cole. Rev. Stat. Ann. § 81-11-9 (Supu. 1969)
Fla. Stat. Ann. § 440.02(13) (1967) : NC. Gen. Stat. § 97-2(12) (1965). An interesting
case, allowing a claim to workmen's compensation of illegitimate children who were
dependent on but not related to the deceased, is discussed in Comment, Workmen's Coin.-
pcn.aation-T!7egitini ate Depemlents. 18 md. L..T. 153 (1943).
4Yellow Cab. v. Industrial Cornm'n, 42111. 226, 247 N.E.2d 601 (1969).
PAGENO="0245"
237
laws providing benefits for "children" or in similar terms that have
been interpreted to refer to legitimate children only.5 Discrimii~a~
tion also occurs in connection with private pension plans involving
survivor's benefits for "children." 6
12. "PAR~xT-T~D" FEDERAL WELFARE LAws
Another large and important category of legislation which a~ect~
the illegitimate is the body of Federal "welfare" statutes that ties a
child's eli~ibilit.v for benefits to the existence of a father or mother,
who is pri~narily "covered" by the legislation in question.
With respect to coverage derived through the mother, few, if any.
problems remain in the law as currently written. With respect to the
father. however, the situat.ion is less clear. Under many Federal welfare.
statutes which provide benefits for children, eligibility for such bene-
fits is derived typically through the, child's father who, by membership
in a aiven class or otherwise, has "earned" the benefit. ~ These statutes.
do not consistently provide benefits for the illegitimate children of
eligible fathers. The Longshoremen's and Harbor Worker's Compen-.
sation Act.t the Foreign Service Act,9 various items of veteran's legis-
lation.'3 arid the Social Security Act" expressly provide benefits for.
illegitimate children, but impose varying standards of proof of pa-
ternity. A second group of statutes, including the Federal Employee's
Group Life Insurance Act 12 and the Copyright Act,'3 does not define
the term "child" so as to include or exclude illegitimates expressly, and
here t.he courts have looked to State law for a definition of. "child". In.
See Comment. Domestic Relations-Meaning of Word "Child" in. Statute-Right of
I7Ifqitirr.ote GlUt? To Recover Pcnsiofl Benefits, 15 Forclham L. Rev. 282 (1946).
ccc, for example. Comment. Jllcf7itiniate Child's Right to Pension Pa~,ahle to "Child"
of Drccas'ca' Mc,r.bcr of Beneficial Association, 5 Wash. & Lee L. Rev. 73 (104S).
5cc ~cncra?l~i Nore. Tue Rig/its of IUegiiirnats Tnder Federal Statutes, 76 Harv. L.
Rev. 337 (1962~ : Note. Iflegitiniates.' Definition of "Children" under Federal Welfare
Lcn?sictioi:, 67 Colum. L. Rev. 9S4 (1967).
44 S:at. 1424 (1927). as amended. 3S U.S.C. § 902(14) (1964) defines `child' to
iuciu~e an `ac-uicwledred Illegitimate child dependent upon the deceased."
60 Srat~ 120 (1946). as amended. 22 U.S~C. 1064(3) (1964) defines "child" to In-
cucie a "recognizeil natural child who received more than one-half of his support from the
participant."
:038 U.S.C. § 101(4) (1964) defines "chfld" to Include:
"lAin illegitimate child but, as to the alleged father, only if acknowledged in writing
signed by him, or if he has been judicially ordered to contribute `to the child's support or
has been, before his death, judicially decreed to be the father of such child, or if he is
otherwise shown by evidence satisfactory to the Administrator to be the father of the
child.
11 See infra notes 18-25.
~68 Stat. 738 (1954), as amended 5 U.S.C. §2093 (1964) speaks of "the child or
children of such employee." Concerning this language, the court in Grove v. United States,
170 F. Supp. 176, 181 (ED. Va, 1959). said:
"But there are many peculiar problems arising from the familial relationship and, as
there is no federal law of domestic relations, the matter is primarily of state con-
corn. . . . This court leans to the view that'. the state law must control the familial
relationship
The court applied virginia law which resulted in granting recovery to the child. But see
Haley v. Metropolitan Life Ins. Co., 434 S.W.2d 7 (St. Louis Ct. App. 1968) in which
tile court adopted a federal definition of "child" to avoid the illegitimate child being
excluded under Missouri Law.
1~ 17 U.S.C. § 24 (1964). The act provides for renewal of copyright, If the holder is
deceased, by the "widow, widower, or children of the author." In DeSylva v. Ballentifle,
351 U.S. 570, 580, 100 L. Ed. 1415, 76 S. Ct. 974 (1956), this language was interpreted
in accordance with state law defining "child":
"The scope of a Federal right is, of course, a Federal question, but that does not mean
that its content is not to be determined by state, rather than federal law. . . . This is
especially true where a statute deals with a familial relationship; there Is no federal law
of domestic relations, which is primarily a matter of state concern." The court applied
California law so as to include the bastard within the definition of "child." Cf. 351 U.S.
at 5S3-S4 (Douglas. J.. concurring)
"But I would think the statutory policy of protecting dependents would be better served
by uniformity, rather than by the diversity which would flow from incorporating into the
Act the laws of forty-eight states. . . . I would . . . regardless of state law, hold that
illegitimate children were `children' within the meaning of § 24 of the Copyright Act."
PAGENO="0246"
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dealing with a third group of laws, such as the Federal Death on the
High Seas Act `~ and, it appears, the Federal Employer's Liability
Act `~ and the Jones Act,'6 the courts have developed a "Federal" defi-
nition of "child" which includes illegitimates.
In summary, although there is a remnant of deference to State law
and concern about the problem of proof of paternity, Federal laws
have gone far toward eliminating discrimination against the illegiti-
mate.'T A very long, though not the final, step was taken in the 1964
amendment to the Social Security Act. To illustrate, important new
sections,'8 provide, in essence, that ". . . an applicant will be considered
the child of the worker if the worker (1) has acknowledged in writing
that he is the child's father; (2) has been decreed by a court to be the
child's father; (3) has been ordered by a court to contribute to t.he
support of the child because he is the child's father; or (4) is shown
by other evidence satisfactory to the Secretary to be the child's father
and has been living with `~ or contributing to the support 20 of the
child." 21
These tests of eligibility were superimposed on those existing previ-
ously. The principal test was whether State law granted the child
intestate succession rights after the father.22 Usually, this had resulted
`~41 Stat. 537 (1920), 46 U.S.C. 761 (1964) : "{T)he personal representative of the
decedent may maintain a suit for damages . . . for the exclusive benefit of the decedent's
wife, husband, parent, child, or dependent relative." The term "child" has been held to
include illegitimates by the application of a federal, not state law definition. Middleton V.
Luckenbach S.S. Co., 70 F.2d 326 (2d Cir. 1934).
1535 Stat. 65 (1908), as amended, 45 U.S.C. § 51 (1964) provides for damage liability
for the death of an employee "to his or her personal representative for th.e benefit of the
surviving widow or husband and children of such employee. . . ." 36 Stat. 291 (1910),
`45 U.S.C. § 59 (1964) provides that a right of action for injury to an employee "shall
survive to his or her personal representative, for the benefit of the surviving widow or
husband and children of such employee In Huber v. Baltimore & 0. R.R., 241 F.
Supp. 646 (D. Md. 1965), 51 was interpreted to apply a federal definition of "children"
unless it were in conflict with a clear state policy. In Bowen v. New York Cent. R.R., 179
F. Supp 225 (D. Mass. 1959), on the other hand, § 59 of the act had been interpreted to
refer to the state law definition of "children"~ which, in that case, resulted in denying
recovery to the illegitimate child.
1638 Stat. 1185 (1950), as amended, 46 U.S.C. § 688 (1964) provides: "[Tihe personal
representative of such seaman may maintain an action for damages at law . . . and in
such action all statutes of the United States conferring or regulating the right of action
for death in the case of railway employees shall be applicable." Tile reference to "railway
employees" involves 35 Stat. 65 (1908), as amended 45 U.S.C. §~ 51-60 (1964) see cases
discussed supra note 15. But ef. Civil v. Waterman ~.S. Corp., 217 F.2d 94 (2d Cir. 1954),
which compares the statutory language of 41 Stat. 537 (1920), 46 U.S.C. § 761 (1964),
and 36 Stat. 201 (1910, 45 U.S.C. § 59 (1964), and adopts the Luckcnbach view, supra
note 14.
"Not so liberal federal law covering the full range of the illegitimate's relationships
applies in the District of Columbia. See D.C. Code Ann. § 16-23-49 (Supp. 1967) : D.C.
Code Ann. 19-316 (Supp. 1967); Blethyn v. Bidder, 80 F. Supp. 962, 963 (D. D.C. 1948).
1042 U.S.C. 416 (1969).
`~ Cf. The interpretation of "living with" given In Wagner v. Finch, 413 F.2d 267, 268-69
(5th Cir. 1969).
20 Gf. The interpretation of "contributing to the support" given in Washington v. Finch,
(U.S.D.C.W.D. La. 9-26-1969) CCII. Pov. L. Rptr. ¶ 15,622.
~` S. Rep. No. 404. 89th Cong., 1st Sess. 267 (1965).
2264 Stat. 492 (1950), as amended, 42 U.S.C. §416(h)(2) (1969) provides:
"(A) In determining whether an applicant is the child or parent of a fully or currently
insured individual for purposes of this subchapter, the Secretary shall apply such law as
would be applied in determining tile devolution of intestate personal property by the courts
of the State in which such insured individual is domiciled at the time such applicant files
application, or, if such insured individual is dead, by the courts of the State in which he
was domiciled at tile time of his death, or, if such insured individual is or was not so
domiciled in any State, by the courts of the District of Columbia. Applicants who accord-
ing to such law would have the same status relative to taking Intestate personal property
as a child or parent shall be deemed such.
"(B) If an applicant is a son or daughter of a fully or currently insured individual but
is not (and is not deemed to be) the child of such insured individual under subaaragraph
(A), such applicant shall nevertheless be deemed to be the child of such insured Individual
if such insured individual and the mother or father, as the case may be of such applicant
went through a marriage ceremony resulting in a purported marriage between them which
but for a legal impediment described in the last sentence of paragraph (1) (B) would have
been a valid marriage."
PAGENO="0247"
239
in discrimination because few Sthtes grant such rights to the illegiti-
mate child. Despite Congress' obviously good mtentions,'3 however,
even the liberal new section falls short of being entirely even handed.
The catch-all phrase at the end of the section remains conditioned
on the illegitimat&s residence with or dependency on his father, and
no such requirement applies to the eligibility of a legitimate child.
Other instances of continuing discrimination against the illegitimate
under tlie~ Social Security Act are~the section that, when total benefits
payable on behalf of one insured exceed the statutory maximum, first
takes away the illegitimate's benefits before any other beneficiary's
benefits are affected,24 and the provision which removes the dependency
requirement for legitimate children but leaves that requirement in
effect for illegitimate children.25 Finally, the illegitimate mother is not
eligible for "mother's benefits" that may become payable to the wife
of an insured.25
13. INHERITANCE AND GIFT TAxES
State ~n~eutance tax rates that are applied to bequests to nonrela-
tives (sometimes including illegitimate children) often are higher than
inheritance tax rates applied to legitimate children.27
In the 1965 report accompanying thIs section the Senate Finance Committee expressed
its belief that
[I~n a national program that is intended to pay benefits to replace the support
lost hy a child when his father retires, dies, or becomes disabled, whether a child gets
heneuits should act depend on whether he can inherit his father's intestate personal prop-
under the laws of the State in which his father happens to live."
~ep. No. 404. 59th Cong.. let Sess. 109-10 (1965).
-- -I I I `1%9)
IT.SX. 402(d) (5) (1969).
- 5 .~1_ n)(il (10~O)
-~Kc;:i:c5v: Ky. 11ev. Stat. 140.070 (1963) grants special inheritance tax rates to Class
A iac:v:uuais, which include "child by blood, stepchild, child adopted during infancy."
Acc:rainc to 1928 Op. Att'y Gen. 20S, No. 136, an illegitimate child is not a "child" under
the inheritance tax law.
Louisiana: Under earlier inheritance tax law illegitimate beneficiaries belonged to no
family and, therefore, could not be classed as ascendants, descendants, or collateral rela-
tives for purposes of inheritance tax exemptions. Succession of Baker, 129 La. 74, 55 So.
714 (1011). The present statute gives special inheritance tax treatment to a "direct descend-
ant, by blood or affinity." La. Rev. Stat. Ann. § 47 :2402(1) (1952). Since the Baker case
has not been overruled, it would appear that it still applies. Cf. Succession of Wesley, 224
La. 182. (59 So. 2d S (1953).
Xebrccl:a: Neb. Rev. Stat. i 77-2004 (1966) grants special inheritance tax rates to a
child. [cr) . . . any lineal descendant born in lawful wcdlocl: (Emphasis added.)
`.c:t Jcsc:,: N.J. Stat. Ann. 54:34-2 (Sunp. 1069) grants special inheritance tax rates
ti . . - c.n(i or children cf a decedent . . . or the issue of any child The word "child"
as tised in this rrcvision was construed as excluding illegitimnte children. Bank of Mont-
citir v. McCatchecn. 107 N.J. Eq. 504. 152 A. 379 (1030). N.J. Stat. Ann § 54 :34-2.1
(1900) provides the illegitimate child with the same exemption as that given to a legitimate
child of the decedent. prOtd(lcd the decedent stood in. the mutually acknowledged relation
of a parent to thia child for siot less than ten ~~ears, such relationship having begun at or
before the child's fifteenth birthday. See In re Roger's Estate, 30 N.J. Super. 479, 105 A.2d
28 (1954), rcv'd on other grounds, sub nom Morristown Trust Co. v. McCann, 19 N.J. 568,
118 A.2d 16 (1955).
North Carolina: NC. Rev. Stat. § 105-4(a) (1965) grants special inheritance tax rates to
Class A individuals, which include "lineal issue." However, according to 1044-46 Op. Att'y
Gon. 112 (April 3, 1945) illegitimate children are excluded from the special rates if they
are not legally adopted by the father. 2 CCII lab. Est. & Gift Tax Rep. (N.C.) ¶ 1310.74
(1966).
Penusyltania: Pa. Stat. Ann. tit. 72, § 2485-403 (Supp. 1070) grants special inheritance
tax rates to Class A individuals, which include "lineal descendants." Pa. Stat. Ann. tit. 72,
24S5-102(13) (1964) defines "lineal descendants" as including "illegitimate descendants
of tile mother and their descendants, and children and their descendants of the natural
parent who are adopted by his spouse. It does not include . . . illegitimate children of the
tather and their descendants Tile same exclusion of illegitimate children of the father
is also found in the definition of "children." Pa. Stat. Ann. tit. 72, § 2485-102(3) (1964).
Texas: Tax. Tax-Gen. art. 14.02 (1060) grants special inheritance tax rates to Class A in-
dividuals, which include ". . . any d!rect lineal descendant of husband or wife, or any
direct lineal descendant or ascendant of the decedent. . . ." According to 1958 Digest of
Op. Att'y Gen. 28, No. 481, the father must "legitimate".
PAGENO="0248"
240
Rarer are instances of discrimination under State gift tax laws. Fed-
eral taxes are not in the picture, because Federal estate and gift taxes
are not assessed on the basis of the relationship of the deceased to the
recipient (except in the case of the marital exclusion).
14. UNn~D STATES CITIZENSHIP
Concerning children born abroad, present law provides that the
legitimate child of at least one American parent is a U.S. citizen. The
foreign-born illegitimate child of an American mother acquires the
mother's nationality status at birth regardless of the father's national-
ity. However, the foreign-born illegitimate child of an American father
and an alien mother is entitled to United States citizenship only if he
is legitimated by his father before the age of twenty-one years.
* * * * * * *
PAGENO="0249"
APPENDIX A0
CnRRENT STATE LAWS-~--EQ~ALITY ACCOMPLISHED?
Under the direct influence of the Norwegian example, North Dakota
enacted legislation in 1917 which, declared all children to be the legiti-
mate children of their natural parents.1 Unfortunately. this early at-
tempt lacked provision for implementation and was short-lived. It was
repealed. more or less by accident, when North Dakota. adopted the
Uniform fllegit.imacy Act ~ in 1923. In 1969, in the wake of judicial
developments under the equal protection clause of the United States
constit.ution.~ North Dakota reverted to its original position with the
enactment of the following statute:
~Every child is hereby declared to be the legitimate child of his
natural parents. and is entitled to support and education, to the
sa~ne extent as if he had been born in lawful wedlock. He shall in-
herit from his natural parents. and from their kindred heir, lineal
and collateral. The issue of all marriages null in law or dissolved
by divorce are deemed to have been born in wedlock." ~
In 1921. Arizona had adopted a similar provision. Its substance
remains in effect today:
"Every child is the legitimate child of it.s natural parents and
is entitled to support and education as if born in lawful wedlock,
except that he is not entitled to the right to dwell or reside with the
family of his father. if the father is married," and "[e]very child
shall inherit from its natural parents and from their kindred heir,
lineal and collateral, in the sante manner as children born in law-
ful wedlock," even when ". . . the natural father of such child
is married to a woman other than the mother of the child, as well
as when he is single." ~
Oregon followed Arizona's example in 1957. Oregon's statute pro-
vides in essential part that:
"[t]he legal status and legal relationships and the rights and obli-
gations between a. person and his descendants. and between a
person and his parents, their descendants and kindred, are the
same for all persons. whether, or not the parents have been
married." C
Alaska has experimented with the equality of legitimate and ille-
gitimate children of ascertained fathers since 1962. Today it provides
that
Krause, op. cit.
1 Ch. 70. 1 [1917] Laws of ND. 80.
2 Ch. 165, §~ 1-37. [1923] Laws of N.D. 107, But of, 4 N. Vernier, American Family
Laws 176 (note 3, table CXVII) (1936).
See Micl?aelson v. Undhjem, 162 N.W.20 861 (ND. 1968).
4X.D. Cent. CoOe 156-01-05 (Supp. 1969).
Ariz. Rev. Stat. Ann. 14-206 (1956).
Ore. Rev. Stat. § 109.060 (1969).
(241)
i51-201-75----17
PAGENO="0250"
242
"(a) A child born out of wedlock heretofore or hereafter shall
be legitimated and considered the heir of the father who (1) shall
subseouentlv intermarry with the mother of the child; (2) shall in
writing acl~nowledge his paternity of the child; or (3) shall be
ad~udgeci to be the~ father by a superior court, upon sufficient
ev~clence. Acceptable ~evidence includes, but is not limited to, evi-
dence that the alleged father so conducts and bears himself toward
the child, either by word or act so as to indicate that the child is
his, and such conduct may be construed by the court to consitute
evidence of paternity. Extrinsic evidence may be employed by the
court to show intent when indefinite, ambiguous or uncertain
terms are used."
An important difference between these provisions is that Alaska's
provision does not use the sweeping language that Oregon and Arizona
have used. Alaska conditions equality on ascertainment of paternity.
In Arizona and Oregon, on the other hand, "the only act necessary to
make a child legitimate in relation to his natural parents and their
collaterals is the act of birth itself." 8 But this distinction is less impor-
tant than it appears to be. If it is not a condition of law the ascertain-
ment of paternity is a condition of fact. In Arizona and Oregon as
much as in Alaska, the father must be identified before the rights of
his child can be enforced against him.
Alaska's legitimation clause ° is unequivocal, but inconsistencies
have remained on the books: (1) Although the legitimation provision
should make the out-of-wedlock child fully eligible to inherit from his
father's kin-as a legitimate child-another section provides that "an
illegitimate child is considered an heir of its mother" but "the child
is not entitled to inherit . . . of the kindred . . . of the mother," unless
legitimated by the subsequent marriage of his parents, even if that
marriage be void.'0 In short, the out-of-wedlock child legitimated by
paternal ackiiowledgrnent or in a paternity action inherits from his
father, his mother and his father's kin, but not from his mother's kin.
Inheritance from the father, mother, the father's and mother's kin will
come to him only if he was legitimated by his parents' marriage. This
hardly makes sense. (2) Another statute," makes the mother the heir
of her illegitimate child, but allows the father to inherit from his child
only if the child was legitimated through the marriage of his parents.
Since the provision does not refer to other methods of legitimation,
one might conclude that the father cannot inherit from the child if
the child has obtained his legitimate status through a court judgment
or by law of acknowledgement. This result would be inconsistent with
full legitimate status of the child. (3) The illegitimate child's status
under Alaska's wrongful death act and workmen's compensation may
be unclear. In the former, the statutory reference is to "children." 12
Neither the statute nor decisions have defined that term further. In the
absense of decisions, one should assume that the reference includes a
child that has become legitimate under the legitimation clause (and
possibly one that has not been legitimated). However, the workmen's
compensation act specifically lists an "acknowledged illegitimate de-
`Alaska Stat. § 25.20.050(a) (1962) (emphasis added).
8 Imperial v. State, 65 (Ariz. 150, 176 P.2d 688 (1947).
~ Supra uote 7.
`°Alaska Stat. § 3.10.030 (i9621 (emphasis added).
"Alaska Stat. 13.10.040 (1962).
"Alaska Stat. § 13.20.340(a) (1962).
PAGENO="0251"
243
pendent upon the deceased." 13 Disconcertingly, the act makes no ref-
erence to other methods of establishing paternity-quite aside from
the pornt. that an acknowledged illegitimate, is a. legitimate child,14
under the legitimation clause. A claimant of vneniployntent Co7rtpeflsa-
was recently denied the right to list his illegitimate children as
dependents for purposes of unemployment benefits.'~ (4) A final point
worth noting is that Alaska has not legislated details for its paternity
action. It appears that statutory treatment of this essential subject is
limited to the evidentiary matters covered in the legitimation
pyO VlsIOli.1G
OREGON
In thirteen Tears following its passage, Oregon's "equality statute"
was not enpla~ned in the appellate courts. Some light is shed on the
aclcgroand and purpose of the legislation by the minutes of the Ore-
~o:i Senates Judic~arv Committee:
"Mr. Philip A. Jos~. Chairman of the Oregon State Bar Committee
on Juvenile Court Procedure and Practice, was present to discuss Sen-
ate Bill 2~O. He presented explanatory material which he had prepared
and further explained that this type of legislation has been considered
by the Bar for three years and some amendment has been effected to
make it acceptable to the archdiocese of Oregon. The bill is to modern-
ize the law relating to children Of unmarried parents and section 1
contains the statement that. there is no distinction between parents,
married or unmarried. Section 2 covers the matter of proof of pater-
uky and involves no chan~e in the existing law as to how paternity
i:~av be proven. Sections 1 and 2 actually involve a restatement of the
two presumptions now existing. Section 3 was discussed with various
rjre compenies. meets with their approval and for the first time in this
stare permits the kin through the maternal line of a child of unmarried
parents to inherit from that child. It makes no change as far as the
father is concerned where the paternity is not established. WThere the
naternirv is established, the situation is the same as it would be for
anyone ~ise. Section 4 is directed to preserve the present situation with
relation to the adoption of children to make it clear that where the
p5tCiflit~ has not been proved, the unmarried mother alone can sign the
a doption papers. It also eliminates the necessity of a guardian for her
if she is a minor. After a short discussion, Senator Lewis moved that
the bill be reported out to pass. Senator Yturri seconded the motion
and it passed unanimously. I\'lembers voting were: Gill, Yturri, Mus-
band. Corbett, Dimick and Lewis. Senator Lewis was assigned the
bill." 17
Along with its advanced provisions, Oregon also has retained in-
consistencies in its law:
(I I A mere irritant is the continuing use in statutes of terms
such as ~Jegitimate." "illegitimate'.' 19 and even "bastard infant"; ~°
~Alaska Stat. 23.30.265(4) (Supp, 1969).
~ Alaska Stat. § 25.20.050 (1962).
C.C.I-I. Pov.L.Rptr. ¶ 9952.
16 Scc note 7 and accompanying text supra. Paternity proceedings generally are treated
in 13 Op Att'y Gen. (Alaska 1962). Note, however, that Alaska makes applicable its
abandonment and non-support laws to the illegitimate child and its.putative father. Alaska
Stat. § 11.35.100 (1962).
~ Minutes, Senate Judiciary Committee, Feb. 28, 1957, pp. 4-5.
~ Ore. Rev, Stat. 106.190 (1969).
~ Ore. Rev. Stat. § 056.002(4) (1969).
~°0re. Rev. Stat. § 163.660(2) (1969).
PAGENO="0252"
244
(2) Until repealed in 1969, the support statute 21 limited the amount
the father could be asked to contribute to the support of his out-of-
wedlock child to an annual maximum of $900 and continued the
father's obligation only "until the child reaches the age of 18 years:'
Since these limitations did not control the support obligation owed a
child born in wedlock, they were wholly inconsistent with the equality
clause. (3) An example of poor draftsmanship rather than of irrecon-
cilable inconsistency is the fact that the adoption provision relating to
consent for adoption continues to bar the out-of-wedlock father "just
as if he were dead".22 The adoption provision gives sole control over
the adoption of her out-of-wedlock child to the mother, if she was not
married to the child's father at the time of the child's conception and
birth and remained unmarried to him at the time of consenting to
the adoption.23 On the other hand, the custody and control provision
which was enacted in 1957 along with the equality clause gives the
mother the right to "give all authorizations for the care, custody, con-
trol and welfare of her child and for the adoption of her child" only
"if a mother has not married the father of her child" (which sub-
stantially continues prior law) "or the paternity of the child has not
been estabUshed" in accordance with law (which is new) ~24 No case has
faced this potential conflict. The newer statute probably should be
viewed as overriding the older which seems consistent with the express
~ anguage and spirit of the 1957 statute as well as with the legislative
history quoted above.25 Consequently, a father who has been ascer-
tained in accordance with law and who objects to the adoption of his
illegitimate child, should and probably will be heard. At worst, this
nTlight mean that the out-of-wedlock father may exercise a veto over
the adoption of his child. At best, it means that he will play a role in
the adoption process. (4) Other Oregon laws have moved in the di-
rection in which the equality clause points. For example, the in-
heritance law now considers the illegitimate child's right to inherit a
matter of course, after repealing, in 1969, a statute which specifically
required that "full effect be given to all relationships as described in
[the equality clause]" with the caveat that paternity had to be estab-
lished prior to the closing of the estate or, in certain other circum-
stances, within three years of decedent's death.26 The Workmen's Com-
pensation Act expressly defines the term "child" to include an illegiti-
mate child,27 and the wrongful death act's reference to "dependents"
probably will be interpreted to allow no distinction between depend-
ents born in and out-of -wedlock.28
ARIZONA
The inquiry now turns to Arizona which has lived with its equal-
ity provision for two generations. While two generations of illegiti-
~` Ore. Rev. Stat. 109.150 (i967). repealed by 1969. c. 619. 15.
2~ Ore. Rev. Stat. § 109.326 (1969). On the failure of Oregon to provide equality in
matters of the father's right to custody and control of the out-of-wedlock child, see Embick,
The Illegitimate Father, 3 J. Fam. L. 321 (1963).
~` Ore. Rev. Stat. § 109.326 (1969).
24 Ore. Rev. Stat. i 109.080 (1969). The section nlso makes minority of the mother
Irrelevant for she is deemed to have reached her majority for the purposes of the section.
~ ~ee text at note 17 supra; Embick, supra note 22.
~ Ore. Rev. Stat. § 111.231 (1967) repealel by 1969, c. 591. 305.
~ Ore. Rev. Stat. § 656.002 (4) (1969).
28 Ore. Rev. Stat. § 30.020 (1969).
PAGENO="0253"
245
mates have not generated a sufficient number of cases to allow an
unequivocal conclusion as to success or failure of the experiment, the
cases that have dealt with the. but-of-wedlock child consistently have
sought. to effectuate what the law promises.
Arizona cases have affirmed the out-of-wedlock child's statutory
ii ght to paternal inheritance.29 Arizona courts have allowed the father
to recognize his out-of-wedlock child without the mother's consent,9°
and th~y have recognized the father's paramount right to custody
where the mother has relinquished the child.3' The criminal nonsup-
ort statute has been applied to cases of failure to support an out-of-
wedlock child.22 and the statutory command that the duty of support
owed the illegitimate is the same as that owed the legitimate child
has Leen upheld.23 The courts have decided that an adjudication of
p~iternity in a civil action. given the father's written acknowledgment
of paternity, is not a. prerequisite for a criminal prosecution for non-
suppoi't.34 but the have held the proceeding to establish pater11it3~ to
he a civil proceeding. with all that implies.35 Many other issues remain
undecided. For example. the question whether and under what cir-
cumstances the out-of-wedlock child may bear his father's name seems
not to have been settled.
Other Arizona statutes have been consistent with the equality clause.
Thus. the adoption statute expressly requires the ascertained father's
(`onsent. to the adoption of his child.36 Thoughtfully, the legislator
has provided a safety valve to guard against abuses on the father's
part. The court may enter an adoption order without the parent's or
~iiardian's consent when. "after, hearing, the court determines that
the interests of the child will be promoted thereby." ~ A potential
conflict remains between these cOnsent provisions and a. clause which
involves solely the mother of an out-of-wedlock child in the relinquish-
ment of the child to a licensed child welfare agency for the purpose
of adoption. It seems likely~ however, that this problem could, should
and would be resolved in the best interests of the child by reference
to the provision, just discussed,~ that gives the court discretion to
dispense with parental consent. Recent cases have interpreted this
section liberally. In one case. the, court dispensed with both parents'
consent. in a situation in which the parents h~tcl been divorcecL had had
a child while divorced and had later remarried~ the father then
ackuowicd~ing the child.25 TJpon the birth of the child prior to the re-
marri ace. however, the mother had given it up for adoption. The court
upheld the adoption and dispensed with the mother's consent on the
ground that the adoption was in the child's best interest and dispensed
~9 In re Cook's Estate. 53 Ariz. 78, 159 P. 26 797 (1945).
`°Placlung v. Sanford. .51 Ads. 211.. 75 P. 26585 (19381.
~1 Caruso v. Ssperior Court, 100 Aria. 167, 412 P. 26453 (1966).
22 Imperial v. State, (15 ArIa. 150. 176 P. 26 688 (1947). It is estimated, however, that
50% or more of the fathers are never found or prosecuted and that less than 10% of
fathers contribute ~ithst~ntI~l1y for sunport voluntarily. Letter from Tack Gaston, Depart-
ment of PublIc welfare. State of ,Arlzonn. to, H. D. Krause, Dec. 1. 1969.
23 ~ re Silva's Estate. 61 Aria. 573, 261 p. 40 (1927) State v. Nerini, 61 Aria. 503, 151
P. 26 983 (19441.
3foreno v. .Shioerior O~,f, .2 Aria. App. 361. 414 P. 26 749 (19561. Of. ~lTiiain. v. Milam,
101 Ah~. 324. 419 P 21 t;02 (19661. in which the father's admission of paternity, In a
aivnrcP 2c11OP. rcaarcllnr his wife's premarital children was held sufficient to impose a
su~nor~ ohljratinn.
~7",qs v. State. 24 Aria. 191. 207 p. 877 (1922) ; McGu~re v. State, 84 ArIa. 242, 326
P. 21 362 (1955).
~Aris. flev. Stat. Ann. 5-103 A(hl (Suon. 1969).
~ Aria. Rev. Stat. Ann. I. 8-104 (1956) (the court is expressly required to make written
findincs of nil facts upon which its order is based).
~` lure Krueger, 7 Aria. App. 132. 436 P.26 910 (1968).
PAGENO="0254"
246
with the father's consent on the ground that the child was "illegiti-
mate" because it was born while the parents were divorced and the
acknowledgment (executed after the adoption petition had been flied)
had come too late to bring him under the provision requiring the con-
sent of the father of an out-of-wedlock child. In another recent case,
it was said rather sweepingly that "the court is invested with power
to decree the adoption of a child without anyone's consent where, upon
a hearing, it appears that the child's welfare will thereby be pro-
moted." 39
Many other Arizona laws that affect the rights of the illegitimate,
such as the wrongful death act 40 and the workmen's compensation
act,4' do not expressly refer to the out-of-wedlock child, but have been
applied to his situation.42
MINNESOTA
Since 1918 when it charged the. "board of control" with the duty to
safeguard the interests of the out-of-wedlock child and to achieve for
it the nearest possible approximation of the rights of a child born in
lawful marriage,~~ Minnesota has consciously approached equality but
stayed clear of it. In Minnesota, the illegitimate child of a known
father has a right of support which is equal to that of a legitimate
child,44 and it inherits from its mother (but not her kin) and its
father (but not hs kin), if the latter has formally acknowledged the
child in writing.46 Adjudication of paternity in a paternity proceeding
does not confer inheritance rights.~~ Only the mother or her heirs
inherit from her child, absent, of course, more immediate heirs, or
another disposition by will.48 While the father is not entitled to
custody as against the mother, he will be heard in adoption cases when
this will not. unduly impede the adoption process.49 Tl~e illegitimate
child is allowed to receive benefits relating to his father under the
workman's compensation act if entitled to inherit from him or if he
was "adjudged by a court of competent jurisdiction to be the father
of the child." 50 Under the wrongful death act, on the other hand, the
reference is to "next of kin." ~` Most importantly, Minnesota has the
following statute:
"It shall be the duty of the commissioner of public welfare when
notified of a woman who is delivered of an illegitimate child, or
nla re Anonymous, 4 Ariz. Ann. 588. 590. 422 P. 2d 419, 421 (1967).
40Ariz. Rev. Stat. Ann. § 12-611. 12-612 (1956).
~` Ariz. Rev. Stat. Ann. 23-901 et seq. (1956). As to the statutory presumptions of
dependency in cases of death benefits, see Ariz. Rev. Stat. Ann. 23-1064 (Supp. 1969).
~The Public Welfare Agency encourages mothers to cooperate by explaining that if
paternity is established the child's rights to social security benefits, veterans benefits and
inheritance rights are established. Letter from Jack Gaston, Department of Public Welfare,
State of Arizona. to H. D. Krause, Dec. 1. 1969.
48Law of Jan. 1, 1918. ch. 17, 3225(d), (1918) Minn. Stat. Supp. 1917.
44Minn. Stat. Ann. § 257.33 (1965) ; State v. Sea', 231 Minn. 1, 42 N.W.2d 680 (1950),
holding that the father's obligation is primary while the mother's is secondary.
45Minn. Stat. Ann. 525.172 (Snap. 1967). -
4~ T~. Ia~ re Karger's Estate, 253 Minn. 542. 93 X.W.2d 137 (19a8).
~` Nor will a written support agreement. In re Snethun's Estate, 180 Minn. 202. 230
NW. 483 (1930) or a written plea of cuilty entered in an illegitimacy proceeding if it is
not sinned by a competent attesting witness, Reilly v. Shapiro, 196 Minn. 376, 265 NW.
284 (1936).
`~ Minn. Stat. Ann. 5 ~525.173 (Supp. 1967) ; In re Kuenzli's Estate, 219 Minn. 176,
17 NW. 2d 309 (1945).
~Iai re Brennan, 270 Mlnn. 455, 134 N.W.2d 126 (196.5), awarding the custody of the
child to the father when the mother rejected it. See also In re Shady, 264 Minn. 222. 118
N.W.2d 449 (1962). recogl1izing that the father of an Illegitimate does have some rights
of custody, although they are not equivalent to those of a father of a legitimate child.
50 Minn. Stat. Ann. § 176.011 (2) (1965). Guptel v. E. 0. Dahlquist Contracting Co., 197
Minn. 21.1. 266 NW. 748 (1936).
~` Mlan. Stat. Ann. § 573.02 (Supp. 1968).
PAGENO="0255"
247
pregnant with child likely, to be illegitimate when born, to take
care that the interests of the child are safeguarded, that appropri-
ate steps are taken to establish his paternity, and that there is se-
cured for him the nearest possible approximation to the care, sup-
port, and education that he~, would be entitled to if born of lawful
marriage. For the better accomplishment of these purposes the
commissioner of public welfare may initiate such legal or other
action as is deemed necessary; may make Such provision for the
care. maintenance~ and education of the child as the best interests
of the. child may from time to time require, and may offer his aid
and protection in such ways as are found wise and expedient to
the unmarried woman approaching motherhood." 52
CONCLc~SIOX
Progress has been made in Arizona.. Oregon and Alaska, having
had a late start. seem to be coming along. Several other States for which
~flnnesota has served as an example, have gone some distance toward
equality. Legal equality of persons of legitimate and illegitimate birth
~s the mandate for future legislation. Toward that end, what can be.
learned from the states that have experimented with equality?
ill the first. place, it seems fa.ir to conclude that the promise of equal-
ity has nowhere been fulfilled. Although the statutes have improved the
legal lot of illegitimates with known paternity, "equality" has re-
n~cined a dead letter to all others. Therein lies the lesson. It is not diffi-
cult to see that~ if equality is to be realized, the law must ensure the as-
certainment of paternity whenever possible and in the child's best in-
terest. To leave, as does Arizona. the decision of whether to bring a
paternity action entirely in the hands of the mother ~ is not enough;
too often her interests will conflict with those of the child. To allow, as
do Arizona and Oregon, the public authorities to bring a paternity ac-
tion `if the child is or is likely to become a public charge" ~ is based on
the interest, of the welfare authorities, instead of the interest of the
child and will help only some illegitinuates. Even Oregon's provision to
the effect that "any minor child may. .. apply to the circuit courL
for an order upon such child's father or mother, or both, to provide for
the child's support" ~ is not enough. If meaningful "equality" is to be
achieved, a statute such as Minnesota's is needed and must h~
enforced.56
*
~Minr. ~tat. Ann. ~ 2~7.~9 (w5~n.
~`Ariz. R~v. $~tat. Ann. ~ 12-021 A (1950).
kr P ~ t Ann i_-~0 (19 6) cf 0 e R v Stit § 109 i2~(b) (19u9)
(~e. Pe~. Stit. 109.100 (1969).
Supra, teat at nate 52.
PAGENO="0256"
PAGENO="0257"
B. The Uniform Parentage Act *
HARRY D. KRAtSE
Few areas of the law have changed more quickly and more pro-
fo~mclly than has the law of illegitimacy in the half dozen years just
past. From an attitude of considerable discrimination against the child
born out of wedlock. the law has moved toward legal equality between
legitimate and illegitimate children. Beginning in 196S. the U.S.
~~upreme Court decided a. series of cases on the basis of the Equal
Protection Clause of the Federal Constitution which establish the
~ that. the illegitimate child is entitled to legal equality with
the. legitimate child in most. substantive areas of the law. Numerous
State statutes discriminating against illegitimate children have been
dccl tired unconstitutional. and the bulk of the remaining legislation
on this su1)]ect is under severe constitutional doubt. So far. new legisla-
tion has been slow to fill the gap thus created. In the summer of 1973,
toe Niticnil Conleience of Coimmssioneis e Umfotni
State Laws adopted the. "IThiforni Parentage Act," earlier drafts of
which were kn6~vn as the "Uniform Legitimacy Act." In February
i9~4. the Act was approved by tim 1-louse of Delegates of the Ameri-
can Bar Association. and the new Act is expected SOOII to ifil the
statutory void left by the developments in constitutional law.
What were those developments? The first two U.S. Supreme Court
cases in which the law of illegitimacy was confronted with the equal
protect1on clause held Louisia,na~s wrongful death statute unconsti-
tutional insofar as it (1) did not allow illegitimate children to recover
for the wrongful death of their mother (Levy v. Louisiana) 1 and (2)
denied a mother recovery for the wrongful death of her illegitimate
child. (Glenn. v. American Guarcth.tee c~ Liability In-suranee Co.)2
T-lad the children been legitimate~ recovery would have been allowed
tn both situat~cns. Over a vigorous dissenting opinion. authored by
~Justice Harlan. Justice Douglas wrote for the majority in the Levy
case:
Legitimacy or illegitimacy of birth has no relation to the nature of the wrong
allegedly inflicted on the mother. These children, though illegitimate, were
dependent on her; she cared for them and nurtured them; they were indeed
hers in the biological and in the spiritual sense; in her death they suffered wrong
in the sense that any dependent would.
We conclude that it is invidious to discriminate against them when no action,
conduct, or demeanor of theirs is possibly relevant to the harm that was done
the mother.3
Subsequently, State and lower Federal court decisions reached vary-
ing results in dealing with the fathev, and child relationship which, of
- ~ The Youngest Minority: Lawyers in Defense of Children, edited by Professor Sanford
~. Katz, pages 92-ii6 (1974), A.B.A. Press. Reprinted with permission of A.B.A. Press.
~ Professor of Law, University of Illinois, Editor's Note: Professor Krause served as
reporter-draftsman to the Committee on a Uniform Parentage Act of the National Con-
ference of Commissioners on Uniform State Laws.
1391 U.S. 68, 88 SOt. 1509 (1968).
2 391 U.S. 73, 88 S.Ct. 1515 (1968).
~ 391 U.S. at 71, 72, 88 S.Ct. at 1511.
(249)
PAGENO="0258"
250
co~irse was the area in which discrimination was most common and
serious. In regard of the child's right to support and his right to bring
a paternity action, many courts applied or extended Levy or Glona,4
although some courts did not.5 A similar situation developed in the
area of the child's right of inheritance with some courts applying or
extending Levy or Gionci G and others refusing to cto so.~ Existmg
State stafutes t'hat allow a child born out of wedlock to inherit under
limited conditions~ usually pertaimng to proof of paternity, generally
were upheid.~ Other cases concerned life insurance proceeds ~ and
ciistodv~ visitation, and adoption.1° Federal laws came under attack"
___4 B v. R. 431 S.W.2d 152 (Mo. 1~G8) ; Storm v. None, ~7 Mise.2d 342, 291 N.Y.S.2d 515
(1968) (extended Levy and (#loiia to the illegitimate child's right of support from his
father) : Trent v. Loru, 57 Misc.2d 352. 292 N.Y.5.2d 524 (1968) (in light of Levy and
(ilcrna Uniform Support of Dependents Law must be applied to remove as far as possible
the obstacles to equal treatment of the illegitimate child) ; Munn v. Munn, 168 Col. 76,
450 P.2d 68 (1969) (father's liability to his illegitimate child may not be greater than or
different from his obligation to his legitimate child) : Wales v. Gallan, 61 Misc.2d 681, 306
N.Y.S.2d 614 (1969) (2-year period of limitation on paternity suit brought by mother held
unconstitutional in light of Levy and Glona. Court referred to child's right to have his
paternity ascertained but decided case on basis of the inequality presented by a 10-year
period of limitations allowed to welfare authorities) ; Lucy v. Torrence, 309 N.Y.S.2d 755
(Fain. Ct. 1970) (citing Levy and Glona, the court appointed a law guardian to represent
an illegitimate child in a paternity action where the natural mother had defaulted and
refused to cooperate).
Baston v. Sears, 15 Ohio St.2d 166, 239 N.E.2d 62 (1968) (refused to extend Levi]
and Glona to the father's support obligation to the child, now overruled by Franklin v.
Julian, 30 Ohio St.2d 228. 283 N.E.2d 813, 817 (1972)) ; Kennelly v. Davis, 221 So.2d 415
(Fla. 1969), cert. denied, 396 U.S. 916. 90 S.Ct. 237 (1969) (married mother not permitted
to bring paternity suit against natural father because a child born in wedlock is presumed
to be the legitimate child of her husband. No violation of equal protection was seen because
this situation of an unmarried niother having an illegitimate child was considered to be
djfferent from the situation of the married mother) ; G. v. P., 466 S.W.2d 41, writ refused
(Tex. Civ. App. 1971) (father of a child born out of wedlock h~s no civil support liability,
non' reversed. Goaiez v. Perez. 409 U.S. 535, 93 S.Ct. 872 (1973).
8 J~. ye Estate of Jensen, 162 N.W.2d 861 (ND. 1968) (extended Levy to the right of
illegitimate descendants to take through their mother in an intestacy situation).
iln, re Vincent. 229 So.2d 449. 255 La. 480, writ refused, 231 So.2d 395 (La. 1969),
aff'd Lahine v. Vincent, 401 U.S. 532. 91 S.Ct. 1017 (1971) ; Strah~n v. Strahaa, 304 F.
Supp. 40 (W.D. La. 1969). asTd 444 F2d 528 (1971) ; Succession of Bush. 222 5o.2d 642
(La. App. 1969) (all refusing to extend Levy to the illegitimate child's right to take from
isis intestate father) ; Estate of Caldwell. 247 So.2d 1 (Fia. 1971) (refused to extend
Levy and Glona to cover intestacy rights of illegitimate offspring in dispute between legiti-
mate and illegitimate collaterals).
8 In re Estate of Pakarinen, 287 Minn. 330, 178 N.W.2d 714 (1970) (discriminatIon
based solely unon illegitimacy is not permissible under Levy and Glona, but Minnesota
statute admitting to intestate succession only those illegitimate children who can produce
an attested written declaration of paternity has *a rational purpose and therefore is con-
situtional) ; Burnett v. Camden, 253 lad. 354, 254 N.E.2d 199 (1970) relt. denied 255
N.E.2d 650 (1970) cert. denied 399 U.S. 901, 90 S.Ct. 2202 (1970) (Levy and Glona
distinguished as cases where the question of blood relationship was not in issue, and
Indiana statute providing that a child may inherit from his putative father only If paternity
has been established by law or if the putative father has married the mother of the child
and acknowledged the child as his, upheld as not denying equal protection).
In ye Estate of R.L.B.. 259 So.2d 206 (Fia. 1972) (life insurance proceeds as sole
asset in estate ordered paid to orally acknowledged illegitimate child of decedent father,
under Florida statute requiring such moneys-when made payable to the estate-to devolve
to the spouse and children. While not specifically mentioning Levy or mona, court held
that reiuiring the illegitimate child to have been acknowledged by father in writing-as
required by another statute applying to inheritance from the father-would "constitute
an unconstitutional deprivation of rights").
18 Extending Levy `di. mona: R. v. F.. 113 N.J. Super. .396. 273 A.2d 808, 816 (1971)
(denying visitation rights to putative father of illegitimate child would deny father and
child due process and eoual protection).
Refusing to extend Levii or Glona: State cx rd. Lewis v. Lutheran Social Services of
Wisconsin and Loper Michigan, 47 Wis.26 420. 178 N.W.2d 56 (1970). (Failure of Wiscon-
sin statutes to grant parental rights or notice of hearing to putative father prior to termina-
tion o parental rights does rot violate eoual protection clause. Reversed on remand, see
Rothstein v. Lnthernn Social Services of Wisconsin and Upper Michigan, 405 U.S. 1051, 92
S'~t. 1438 (1972). State cx reT. Lewis v. Lutheran Social Services of Wisconsin an'~ Upper
Michivan. 59 W~s. 2d 1. 207 N.W.2d 826 (1973)). Vanderlaan v. Vanderlnan, 126 Ill. Apn.
2d 410. 262 N.E.2d 717 (1971) (father denied visitation rights relating to Illegitimate
child). Les~; or Glona not discussed. Remanded, Vanderlaan v. Vanderlaan 405 U.S. 1051
92 S.Ct. 1488 (1972).
U (i) Jonrsl~orr"ien's and Harbor Worrer's Compensation Act-Ingtils Shipbuilding
Corp. v. Neuman. 322 F. Supp. 1229. 1245-47 (S.D. Miss. 1970) (dictum: requiring Illegiti-
mates to prove dependency-whereas legitimate children need not-probably would not be
"invidious discrimination").
(ii) Federal Employees Group Life Insurance Act-Haley v. Metropolitan Life Ins. Co..
4.34 S.W~2tI 7 (Mo. Apn. 1968) (extended Levy and Glona to include an illegitimate child
in the deflastion ~ "child" under the Act).
(iii) Jones Act-Hebert v. Petroleum Pipe Inspectors, Inc., 396 F.2d 237 (5th Cir.
(contInued)
PAGENO="0259"
251
as did State compensation laws such as workmen's compensation 12
and wrongful death acts.13 To sum up, while Lev~j and (]lona did not
meet a unanimous response, many courts considered them to require
equality between legitimate and illegitimate children in their legal
relationship with their fati ters.
It was a greet surprise when. within three years of deciding Levy
and 67o;y'. the V.5. Supreme Court reached a conclusion in a case
involving inheritance which maiiv considered to be directly at odds
with the earlier decisions.'4 Labine v. Vincent 15 refused to extend
L ty to perm~t en illegitimate child to inherit from her intestate
father under Louisiana law. althougl~ her father had acknowledged
her during his lifetime. The Lcibine case was quickly seized upon by
conservative courts to restrict Levy and Glona narrowly to their own
facts and to refuse to accord the~ illegitimate child broader constitu-
`Conclaued)
d3~ (extended Lccy to include adulterous illegitimate offspring in the Act's definition of
children'
(iv~ Servicernens Group Life Insurance Act-Prudential Insurance Company v. Willis,
227 Ga. 019. 1S2 S.E.2d 420 (iO7i) (reversed lower court's decision which had treated an
~~know1ed~ed il1evitln~ate child of a deceased serviceman as a `child" under the Act. Child
held not entitled to the proceeds of a serviceman's group life policy. StroDe dissent relied
Ca Lcc:I). in ateed. Dabytis v. Prudential Insurance Co., 227 Ga. 253, 179 S.E.2d fin
(1071) 1no reference to Lct~' or Giona).
v~ Ccp'~richt Act-Jerry Vogel Music Co. v. Edward B. Marks Music Corp., 425 F.2d
534 (dud Cir. 000) (refused to extend Lcr~i and Glona to allow the assignee of deceased
a llc~'t ~n tu dxu' iter to claim copyright renewal rignts in coate t with
of decensed capyri~ht holder's wife).
Stoices v. Aetna Cas. & Surety Co., 257 La. 424, 242 So.2c1 567 (1971), sec also Weber
Aetna. fiscussed below. (Illegitimate child is entitled to collect workmen's compensation
benefits related to father.)
:i4pp7,,j7~q or cxtcndinfy Levy or Glona: Armijo v. Wesselius, 73 Wash. 2d 716, 440 P.2d
471 (1933) (with refere:ice to the equal prOtection argument, construed wrongful death
ute t~ dude ile~itimate children of father within the term `child or children"
bcf~re Lc~: aud Glenn were decided) Miles v. City-Parish Government, 2i9 So.2d 320
La. Ann. 1000) allowed mother to sue for wrongful death of her illegitimate children)
I C F 0 CO Ii c 2d 7j6 ~O "., V S 2d 306 (19C9 and Ia cc Est.te of Pereh
233 Y.Y.S.2d 331 (Siirrozates' Ct. 1972) (illegitimate child whose paternity was not
formally estabhshed during the father's lifetime is entitled to recover for father's wrongful
death. at~t-y provisir~ns to the contrary are abrogated by Levy and Glona..) In cc Estate
of Ro~. 323 :cY.S.2d 770 (Surrogates' Ct. 1971) (under Levy and Glona~ illegitimate child
is entitled to recover for father's wrongful death and to be issued letters of administration).
Weske v. Mounter. 493 P.2d i°07 (Xev. 1972) (Levy and mona require that posthumous
illegitimate child be allowed action for father's wrongful death, although father hod not
acknowledged paternity. Dissent acknowledges constitutional equality requirement, but
seeks to distinguish Levy insofar as proof of maternity usually is clear-whereas proof
of paternity, usually Is not-and fears spurious claims if statutory requirements relating
to proof of paternity are not met) ; Accord, without dissent: Cannon v. Transarnerican
Freight Lines, 37 Web. App. 313, 194 N.W.2d 736 (1971) Schmoll v. Creecy, .54 N.J. 194,
254 A.2d 525 (1069) (Levy and Glenn. extended to allow illegitimate child wrongful death
action for death of his father)
J?ef using to apple' or extend Let;~ or Glona: Sanders a-. Tillman, 245 So.2d 198 (Miss.
1071) (illegitimate child may not recover for the wrongful death of his father where
father had not legally acknowledged him during Isis lifetime. Levy and mona distinguished
on hiasss of ease of provino maternity and difficulty of proving paternity) : Rogers v. State
Farm Mutual Automobile Insurance Co., 26i So.2d 320 (La. App. 1972) (denial of wrongful
doath action to ihleeltimate siblings not a denial of clue process and equal protection. Levy
and Glenn interpreted as anplicable only to the parent-child relationship, involving de-
peniency or at least mutual support obligation). City of West Palm Beach v. Cowart, 241
So.2d 748 (Fla. Apo. 1970) (father not allowed an action for the wrongful death of his
i1legitimate child. mona and Lcvij interpreted, as applying to the mother and child rela-
tionship only) ; George v. Bertrand, 217 So.2c1 47. writ refused 21.9 So,2d 177 (1968). cert.
(levied. 396 U.S. 974, 90 S.Ct. 439 (1969) (legal husband of mother is presumed to be the
father of a child born in wedlock, an~ father of illegitimate child may not recover for the
wrongful death of his son. Levy and Glona distinguished).
14 Jig., H. Krause, Illegitimacy: Law and Social Policy, vii-lx (Preface) (1971).
15401 U.S. 532, 91 S.Ct. 1017 (1971)
PAGENO="0260"
252
tional protection in the areas of support,16 inheritance ~ as well as
social security benefits.'8
The surprise engendered by Labine in 197]. was surpassed when the
Supreme Court again reversed its position in 1972. In a dramatic de-
parture from Labine, the Court held that workmen's compensation
benefits related to the death of their father are due to dependent, un-
acknowledged illegitimate children.'9 The Court said:
The status of illegitimacy has expressed through the ages society's condem-
nation of irresponsible liaisons beyond the bonds of marriage. But visiting this
condemnation on the head of an infant is illogical and unjust. Moreover, im-
posing disabilities on the illegitimate child is contrary to the basic concept of
our system that legal burdens should bear some relationship to individual re-
sponsibility or wrongdoing. Obviously, no child is responsible for his birth and
penalizing the illegitimate child is an ineffectual-as well as an unjust-way of
deterring the parent. Courts are powerless to prevent the social opprobrium suf-
fered by these hapless children, but the Equal Protection Clause does enable us
to strike down discriminatory laws relating to status of birth where-as in this
case-the classification is justified by no legitimate State interest, compelling or
otherwise.uo
One of the first cases to apply Weber distinguished Labine, and
enjoined enforcement of Social Security provisions discriminating
against illegitimates by denying them benefits where the family award
was not sufficient to meet maximum payments to wife and legitimate
children.2' The Court. mentioned earlier, contrary decisions that had
upheld the provisions on the strength of Labine but, in the light of
Weber, viewed them as no longer controlling. Other cases fol-
lowed and dealt with other subjects.22
~ Mitchell v. Mitchell, 445 F.2d 722 (D.C. Cir. 1971) (distinguished Levy and mona and
applied Labine to hold that children resulting from a marital relationship were entitled to
support before and in preference to an illegitimate child) : Linda u.s. v. Richar~ D. and
the State of Texas, 335 F. Supp. 804 (ND. Tex. i971) (denied declaratory judgment to
mother of illegitimate child that Texas support laws unconstitutionally exclude illegitimate
children. Also denied injunction against state officials to require them to apply support
laws to cover support for illegitimate children. Dissent distinguishes Labine and would
apply Levy and Glona to allow action. ~S'ee infra, note 23 for further development.
`71n. cc Estate of Hendrix. 326 N.Y.S.2d `646 (Surrogates' Ct. 1971) statute conditioning
Illegitimate child's right to inherit from father on order of fihiation during father's lifetime
upheld. Levy and mona distinguished and Labine held decisive). Similarly, In re Estate
of Belton, 70 Misc. 2d 814. 335 N.Y.S.2d i77 (1972).
~ Parker v. Secretary of HEW, 453 F.'2d 850 (5th Cir. 1972) (applied Labine to hold that
where a reduction of social security benefits is required because of a family maximum,
benefits payable to an illegitimate child may be reduced first. Court held that "any doubt
in regard to the legislature's power to distribute rights on the basis of status stemming from
legitimate or illegitimate birth was resolved by Labine"). Accord Garner v. Richardson, 333
F. S.upp. i191 (ND. Cal. 1971) ("In view of Labine, this Court cannot conclude that any
"discrimination" in favor of legitimate children and against illegitimate children is violative
of the principles of equal protection" (p. 1197)). watts v. Veneman. `334 F. Supp. 482
(D.D.C. 1971) (Social Security Act provisions limiting benefits to illegitimate child whose
father has acknowledged the child in writing, or who has been ordered by a court to support
the child, or who has been judicially decreed to be the father, or who is shown by other
evidence to be the child's father and to be living with or contributing to the child's support,
held reasonably designed to bar spurious claims `and, in light of Labine, held not to deny
due process). Johnson v. Finch, 350 F. Supp. 945 (ND. Tex., Dallas Div. 1972) (upheld
the requirement of the Social Security Act that the wage earner have been living with his
illegitimate children at the time of death to entitle them to receive benefits).
`~ Weber v. Aetna Casualty & Surety Co.. 406 U.S. 164. 92 S.Ct. 1400 (1972). The ex-
planation is that the two Justices apparently most strongly opposing the new approach to
illegitimacy had left the court just before Weber was decided: Justice Harlan had gone on
record with his dissent in Levy and Glona, and Justice Black had authored the majority
opinion in Labine.
20 406 U.S. at 175-76. 92 S.Ct. at 1406-07.
21 Davis v. Richardson. 342 F. Supp. 588 (D. Conn. 1972). Accord, Williams v. Richardson,
347 F. Supp. 544 (N.D.N.C. 1972). Sec also Morris v. Richardson, 346 F. Supp. 494 (ND.
Ga. 1972).
22For example, in Butcher v. Pollard, 32 Ohio App. 2d 1, 288 N.E.2d 204, 213 (1972)
`the court, looking at Weber, held that the word "children" in the beneficiary clanse of a life
Insurance policy "must be construed to include nil offspring. rerardless of legitimacy."
On the authority of Lcv~i and Weher, Walker v. Walker, 266 So.26 385 (Fla. 1972) held
Invalid a mother's release of the putative father insofar as it purported to affect the child's
rights.
PAGENO="0261"
253
In January, 197g. finally, the, US. Supreme Court substituted con-
sistency for its previous vacillation. At issue was the substantive right
that is of the greatest importance to the illegitimate child-the right
to support. The Court held that "once a State posits a judicially en-
forceable right on behalf of children to needed support from their
natural fathers there is no constitutionally sufficient justification for
denying such an essential right to a child simply because her natural
father has not married her mother." 23 Justices Stewart and Rehnquist
dissented on technical grounds. Since then, `lower courts have granted
relief to the illegitimate child in a number of cases ranging from
workmen's compensation to social security,25 and the U.S. Supreme
Court. got into the act once more by striking down a New Jersey
welfare statute which discriminated against illegitimates, with only
~Justice Rehuquist dissenting.26
In three decisions rendered iii 1972, the U.S. Supreme Court had
dealt with the converse of the child's right to his father, namely the
father's rights concerning his child. A somewhat imprecise opinion,
giving the father an interest in his illegitimate child's custody and
adoption, is causing difficulty with the adopt.ion process in many
States, as many courts and some legislatures have interpreted the
cases to require notice of adoption even to the unknown father-
by publication, if need be.27
The fair conclusion to be drawn from this long line of decisions
is that State and Federal law may not discriminate between legitimate
and illegitimate children in any significant substantive area other
than inheritance. Unfortunately; this point has not yet been fully
understood by State legislatures which have made little effort to date
to enact new laws that agree with the constitutional mandate of
equality.
At this point, the gulf between the abstract principle and the reali-
zation of legal equality between legitimate and illegitimate children
looms very wide. The old `law of illegitimacy is all but a dead letter,
but the new law has not yet been implemented-which leaves the
situation in a state of confusion that many lawyers and some judges
find difficult to understand. But even if they did. lawyers and judges
would be unable to deal with the situation effectively. The courts are
not suited for broad-scale implen~entation of the constitutional man-
date. The case by case battle over! specific sections of specific statutes
or rules of the common `law could go on for decades without bringing
meaningful results for the mass of illegitimates who now make up
some ten percent of newly born children.
The Uniform Parentage Act is intended to fill this vacuum. Its
23 Gornez v. Perez, 409 U.S. 535, 93 S.Ct. 872 (1973). Almost simultaneously, the mother
of an illegitimate child sought to compel a local district attorney to bring a criminal prose-
cution of the child's father for failure to render support. She relied on a Texas statute
which had been consistently applied only to fathers of legiimate children and argued that
the ~ame remedy should be available in respect of her illegitimate child. Somewhat sac-
prisin~ly, the Supreme Court denied the mother's claim on technical grounds related to
standing. Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146 (1973).
~ Carr v. Campbell Soup Co.. 124 N.3'. Super. 382, 307 A.2d 126 (1973).
~ Beaty v. Weinberger, 478 F.2d 300 (5th Cir. 1973) (paternity conceded) ; Tut cf.
Jimenez v. Richardson, 353 F. Supp. 1356, 1361 (N.D. Ill. ED. 1973) (upholdIng the ra-
tionality of requirements relating to proof of paternity on the basis of the government's
Interest in preventing spurious claims).
~ New lersey Welfare Rights Org. v. Cahill, 411 U.S. 619, 93 S.Ct. 1700 (1973).
~ Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972) Rothstein v. Lutheran Social
Services of Wisconsin and Upper Michigan, 405 U.S. 1051, 92 S.Ct. 1488 (1972) ; Vander-
lazin v. Vanderlaan, 405 15.8. 1051, 92 5.Ct. 1488 (1972). See infra, text at note 35.
PAGENO="0262"
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guiding principle is full equality for all children, legitimate and
illegitimate, in their legal relationship with both parents (~ 1, 2).
Moreover, the Act emphasizes that the right in question is the right
of the child (~ 6(a), 9)-not the right of his mother as current State
laws insist. Accordingly, the mother may not stand in her child's way
and, if necessary, may be compelled to testify as to the father's identity
and whereabouts-just as any other witness 28 (~ 10(b)).
Earlier drafts of the Act had contained detailed substantive pro-
visions, but the Supreme Court cases just discussed obviated the
need for them. Accordingly, the substance of the Act now is ex-
pressed in its first two sections. The remainder of the Act is largely
concerned with the sine qua non of equal legal rights-the identi-
fication of the person agaillst whom these rights may be asserted.
In the context of the child born out of wedlock that person is the
father. (To cover the rare case in which there may be uncertainty
as to the mother, the Act permits a declaratory action on the ques-
tion of maternal descent § 21)
In order to identify the father, the Act first sets up a network of
presumptions which cover cases in which proof of external circum-
stances (in the simplest case, marriage between the mother and a
man) indicate a particular man to be the probable father (~ 4). While
perhaps no State now includes all these presumptions in its law, the
presumptions are based on existing presumptions of "legitimacy"
in State laws and do not represent a serious departure. Novel is that
they have been collected under one roof. All presumptions of paternity
are rebuttable in appropriate circumstances (~ 4(b), 6 (a), (b)).
The ascertainment of paternity when no external circumstances
presumptively point to a particular man as the father is the next
major function of the Act (~ 6-20). Particularly noteworthy is the
pre-trial procedure which will greatly reduce the current high cost
and inefficiency of paternity litigation by encouraging the voluntary
settlement of cases (~ 10-13). It is expected that, as soon as reliable
blood test evidence becomes available on a large scale, the great major-
ity of cases will be settled consensually in the light of such evidence.
In this connection, proposed legislation currently pending in the
U.S. Congress should be considered.29 That legislation looks toward
the establishment of a national system of federally assisted child
support enforcement and, in that connection, provides for an efficient
system of blood typing:
REGIONAL LABORATORIES To ESTABLISH PATERNITY THROuGH ANALYSIS
AND CLASSIFICATION OF BLOOD*
Sec. 461. (a) The Secretary shall, after appropriate consultation and study
of the use of blood typing as evidence in judicial proceedings to establish
paternity, establish, or arrange for the establishment or designation of, in each
region of the United States, a laboratory which he determines to be qualified
to provide services in analyzing and classifying blood for the purpose of deter-
5Deleted by House-Senate conferees on H.R. 17045 and did not become law.
~ Possible questions concerning the mother's constitutional right to privacy are an-
swered effectively in Doe v. Norton, 365 F. Supp. 65 (D. Conn. 1072) See also H. Krause,
Illegitimacy: Law and Social Policy 110-21 (1071).
29H.R. 3L53, 03rd Cong., 1st Sess. (1073), the child support enforcement provisions of
which-after having been passed by the Senate--remain In Conference at the time of this
writing. Action is expected later this year. The legislation evolved from earlier proposals
made in connection with HR. 1 in 1072. An intermediate precursor was 5. 2081, 93rd
Cong. 1st Sess. (June 1973). See S. Rep. 03-B53. Social Security Amendments of 1973
(H.R. 3153) 39-52 (1973), for a detailed exposition of the proposal.
PAGENO="0263"
255
mining paternity, and which is prepared to provide such services to courts and
public agencies in the region to be served by it.
(b) Whenever a laboratory is established or designated for any region by
the secretary under this section. he shall take such measures as may be ap-
rrogriate to notify appropriate courts and public agencies (including agencies
administering any public welfare program within such region) that such lab-
oratory has been so established or designated to provide services, in analyzing
and classifying blood for the purpose of determining paternity, for courts and
public agencies in such region.
~ci The facilities of any such laboratory shall be made available without
cost to courts and public agencies in the region to be served by it.
(d) There is hereby authorized to be appropriated for each fiscal year such
sums as may be necessary to carry out the provisions of this section.
This is important legislation and. if passed, will revolutionize the
establishment, of paternity. It. should be noted that centralized blood
~ n i~ rc~.1iues s ~ hi to ti ose contemphtecl in t a proI~os~l ~l
r:~aftv exist in Oslo. Copenha~en and Stockholm. Over several decades,
great expertise has been developed there.3° The Scandinavian labora-
tories are distinguished not only in terms of their use of complex and
advanced blood typtng systems, but also in terms of highly developed
safety procedures which assure accuracy of the results they report.
This latter point may be the most, important element of blood typlng.
There can bc little doubt that. it would be better not to admit blood tests
into evidence at all than to admit unreliable evidence under the halo of
scientific truth-as has too often been done in the United States where
a recheck of a. sample of even relatively simple tests revealed about
one-third of them to have been in error! ~ The Copenhagen laboratory
`and ~e practice in Stockholm and Oslo is similar) employs two sets
of systems in "layers." the routine blood group determination resulting
in exclusion of paternity for about `10 percent of non-fathers and an
extended blood group determination which increases paternity ex-
clusions to about 90 percent of non-fathers. WThile an exclusion figure
approximating 90 percent of men falsely named as fathers is impres-
sive, cases which do not produce an exclusion are pursued further on
the basis of a "blood group paternity index" by means of which the
"probability" of the named man's paternity is estimated.32 That index
compares the frequency of a given father-mother-child blood constel-
lation in a sample of actual fathers with the blood constellation in a
sample of non-fathers and is related to the constellation obtained in the
case in question. If the resemblance exceeds 95 percent or falls below
5 percent., the result is reported to the court. At the outer limits, this
approach produces do facto inclusions or exclusions. In less extreme
cases, it produces interesting circumstantial evidence. It is of particu-
har value when the relative likelihood of paternity of several possible
fathers is to be compared.33
A )oint committee of the American Medical Association and the
American Bar Association currently is studying the whole subject
of the use of blood typing evidence in paternity cases. A detailed
report with specific findings is expected to be completed soon.34
~° See generally, Henningsen, Some Aspects of Blood Grouping in Case.s of Disputed
Paternity in Denmark, 2 Methods of Forensic Science 200 (1063) ; Henningsen On the
Application of Blood Tests to Legal cases of Disputed Paternity, 12 Revue de Tr~nsfusion
137 (1969) P. Andresen, the Human Blood Groups 73 (1952).
Sec Wiener, Foreward, L. Sussman, Blood Grouping Tests-Medico-legal iJses lx
(1968). See also Wiener, Prohiems and Pitfalls in Blood Grouptng Tests for Non-P arent'age
15 3. Forensic Medicine 106, 126 (1968).
~ See Gdrtler, Principles of Blood Group Statistical Evaluation of Paternity Cases at the
TJn.iversity Institute of Forensic Medicine, Copenhagen, 9 Acta Medicinae et Socialis 83
(1956).
~ See generally, Krause, Illegitimacy: La.w and Social Policy 123-144 (1971)
~ See 1? Family L. Newsletter, ABA Section of Family Law 5-6 (No. 2, August 1972).
As co-chairman of the Committee (representing the ABA), the author should be happy
to provide details to interested persons on request.
PAGENO="0264"
256
To provide every infant with the means to exercise his rights rather
than leave his fortunes to the possibly conflicting interests of his
mother or the views of the social worker, the draft of the Act that the
Committee submitted to the Conference contained the following
provision in Section 6(c):
If a child has no presumed father under Section 4 and the action to determine
the existence of the father and child relationship has not been brought and pro-
ceedings to adopt the child have not been instituted within [1] year after the
child's birth, an action to determine the existence of the relationship shall be
brought promptly on behaLf of the child by the [appropriate State agency].
Regrettably, this provision was stricken from the final draft by a
successful motion from the floor of the Conference. In the press of
the afternoon's business, the Conference failed to see the Committee's
argument that substantive equality is an empty promise, so long as the
father remains unknown.
The Uniform Parentage Act contains appropriate provisions for
setting the level of support, the enforcement of judgments, and deals
with related issues such as custody. The custody problem has been com-
plicated by the U.S. Supreme Court's decisions in the three cases re-
ferred to above.35 In Stanley, the father of an illegitimate child who
had long lived with the mother and children in a de facto family unit
was held entitled to notice and a hearing in proceedings involving the
custody of his child. In Rot 1! stein, the Court remanded a case involv-
ing an unmarried father challenging a completed adoption to the Wis-
consin Supreme Court for decision in the light of Stanley. In Vander-
iaan, the Court remanded to the Appellate Court of Illinois a case in-
volving a father's claim to visitation rights concerning his illegitimate
children.
These cases are exerting a significant effect on adoptions of illegiti-
mate children. Substantial uncertainty persists concerning the precise
meaning of "due process" in this context.36 For instance, the Supreme
Court of Illinois has applied Stanley to a fact situation involving an
alleged father who claimed his child born out of wedlock from an
au adoption agency to which the mother had surrendered the child
upon birth.37 The Wisconsin Supreme Court, in deciding the Rot listein.
remand, held that there can be no valid adoption without a valid
termination of parental rights of the unmarried father.38 Many lower
State courts have interpreted the Stanley case very broadly, probably
overly broadly, and the adoption process has become cumbersome and
insecure. Even more importantly, in the scramble to reduce the feared
impact of Stanley on adoptions, some legislatures have let themselves
be stampeded into passing inadequate legislation, ranging from the
ineffective to the ridiculous.
An example in the latter category is a new Michigan statute which
requires the unmarried father to file what might be called a "notice
of fornication" with the Probate Court prior to the birth of a child.
This notice must be coupled with an advance `acknowledgment of the
child's right to support and education as well as the mother's preg-
nancy-related expenses. If such a notice is not filed, any claim to a
~ ~upra, note 27.
~ Cf. Armstrong v. Manzo. 380 U.S. 545, 85 S.Ct. 1187 (1965).
~ Slawek v. Covenant Children's Home, 52 Ill.2d 20, 284 N.E.2d 291 (i972).
`~ State e~r re! Lewis v. Lutheran Social Services of Wisconsin and Upper MichIgan 59
Wis. 2d 1, 207 N.W.2d 826 (1973).
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child that might be born as a resuk of the intercourse with the mother
ls lost.19
It is difficult to classify this statute as anything but an absurdity
on its face. Aside from other defects, this provision could not bar the
father who was not aware of the mother's pregnancy. Moreover, to
condition a man's constitutional rights on his acknowledgment of
sipport obligations with respect tO a child that has not seen the light
ot day and that may or may not be his. is of very doubtful validity.
Finally, is it sound policy to allow any man to file such notices with
regard to any woman who cannot disprove that lie has had intercourse
with her In this connection. it should be noted that the probate court
is charged with transmitting such notices to the vital records division
of the department of public health, with a copy to the woman (whether
she is married or not) 40
The Fniforrn Parentage Act provides an efficient procedure by
which the rights of the disinterested unmarried father may be ter-
minated. Delay and interference with the adoption process is kept
to the. minimum believed to be consistent with a reasonable inter-
pretation of the Stan/dy case (~ 24). Specifically. the Act focuses on
the case in which the father has not been formally ascertained and the
mother seeks to surrender the child for adoption. In the light of the
IT.S. Supreme Court~s decisions and related State court decisions, the
Committee thought it essential that the unknown or unascertained
father's potential rights be terminated formally in order to safeguard
adoptions. Under the procedure provided by the Act, the court must
try to ascertain the ident.ity of the father. but very speedy termination
of his potential rights may be had if `he shows no interest in the child
rn if a reasonable effort provides no clue to his identity (~ 24(c) (d)
(e)). Since that will be the typical case, the vast majority of children
will be free for adopt.ion very quickly. If. on the other hand, the natu-
ral father or a man representing himself to be the natural father claims
custodial rights. the court has authority to determine custodial rights
(~ 24(d)). In a case~ in which the man alleging himself to be the father
is clearly unfit. the court would proceed to terminate his potential
parental rights without deciding whether he actually is the father of
the child. If, on the other hand, the man alleging himself to be the
father and claiming custody is prima facie fit to have custody of the
~ Mich. Comp. Laws Ann. vol. 37, § 710;3a (Supp. 1973-74)
"Sec. 3a. (1) Release for the purpose of adoption given only by a mother of a child born
out of wedlock is sufficient and rights of any putative father shall not be recognized
therenfter in any court unless the person claiming to be the father of the child has filed
with the probate court prior to the birth of the child, a notice of intent to claim paternity
on such forms as shall be provided by the director, of the department of public health. The
notice shall contain his name and address, the name and the last known address of the
mother and the month and year of the expected birth of the child. On the next business
day after receipt of the notice the probate court shall transmit the notice of the depart-
meat of public health, vital records division, and send a copy to the mother at her stated
address. The notice is admissible in any action for paternity under Act No: 205 of the Public
Acts of 1056. as amended, being sections 722.711 to 722.730 of the Compiled Laws of 1948,
shall estop the claimant from denying his paternity of such child thereafter and shall
contain language that he acknowledges liability~ for contribution to the support and
education of the child after its birth and for contribution to the pregnancy-related medical
expenses of the mother. The notice shall be conclusive evidence under this act or Act No.
205 of the Public Acts of 1956, as amended, unless the mother denies that the claimant is
the father."
40 Aside from the obvious vulnerability of the statute under Stanley, the following pos-
sible routes of constitutional attack might be considered (1) on behalf of the father, Doe
o-. Ranipton. 366 F. Supp. 189 (D. Utah CD. 1973), (2) on behalf of the mother, Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (1965), Doe v. Norton, supra, note 28, notwith-
standing. and (3) on behalf of the child, the whole line of U.S. Supreme Court cases just
discussed.
51-207 0 - 75 -- 18
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258
child, an action to ascertain paternity is indicated, unless a voluntary
acknowledgment can be obtained in accordance with the Act (~ 4(a)
(5)). As to the determination of unfitness, the grounds generally ap-
plicable would control. An attempt to single out the unmarried father
probably would be unconstitutional.41
A constitutional question is raised by a provision (~ 24(e)) attempt-
ing to cut off after a given period any claim seeking to reopen a judg-
ment terminating parental rights. While questionable, such a provi-
sion is not without precedent. A similar provision is contained in
Section 15(b) of the revised Uniform Adoption Act, approved by the
Commissioners on Uniform State Laws in 1969, and other similar
provisions are contained in the adoption acts of a number of States.
In defense of that provision, it must be considered that the case of
adoption differs from most other situations. A parent's claim to his
child should not be compared to a person's claim to property. The Su-
preme Court itself recognized that the interest of the child is heavily
involved in these cases when remanding the Rot listein case to the Wis-
consin Supreme Court. It required that the Wisconsin court give "due
consideration of the completion of the adoption proceedings and the
fact that the child has apparently lived with the adoptive family for
the intervening period of time." 42
The following footnote in Start7ey v. Illinois caused great concern
and confusion:
We note in passing that the incremental cost of offering unwed fathers an
opportunity for individualized hearings on fitness appears to be minimal. If
unwed fathers, in the main, do not care about the disposition of their children,
they will not appear to demand hearings. If they do care, under the scheme here
held invalid, Illinois would admittedly at some later time have to afford them a
properly focused hearing in a custody or adoption proceeding.
Extending opportunity for hearing to unwed fathers who desire and claim
competence to care for their children creates no constitutional or procedural
obstacle to foreclosing those unwed fathers who are not so inclined. The Illinois
law g~overithig procednre in jnvenile cases . . . provides for personvl service,
notice by certified mail or for notice by publication when personal or certified
mail service cannot be had or when notice is directed to unknown respondents
under the style of "all wltonl it may concern." Unwed fathers who do not
promptly respond cannot complain if their children are declared wards of the
State. Those who do respond retain the burden of proving their fatherhood.4'
This footnote has been interpreted by some to require publication
in all cases in which a child with unascertained paternity is surren-
dered for adoption, despite the fact that in many such cases it will be
highly improbable that publication will lead to the identification of
the father. In view of that and the probability that publication will
lead to substantial embarrassment for the mother, the Act allows the
court to determine whether, in the particular circumstances of each
case, publication would be likely to lead to the identification of the
father. If identification seems improbable, the court may dispense
with publication (~ 24(d)). It was considered relevant that an in~
41 As a good, though only partial answer to Stanley, consider newly enacted Ill. Rev.
Stat. ch. 4 § 9.1-ID(K) which provides that "failure to demonstrate a reasonable degree
of interest, concern or responsibility as to the welfare of a newborn child during the first
30 days after its birth" is a ground for `an adjudication of parental unfitness and consequent
termination of parental rights. This clause should protect an adoption against at least the
father who knew of the birth of his illegitimate child, had an opportunity to "show interest,
concern or responsibility," and who failed to avail himself of it.
42 Rothsteln v. Lutheran Social Services of Wisconsin and Upper MichIgan, 405 U.S.
1051, 92 S.Ct. 1488 (1972).
~` Emphasis added, 405 U.S. at 657, 92 S.Ct. at 1215, i216.
PAGENO="0267"
259
discriminate publication requirement probably would cause an appre-
ciable number of mothers to withhold their children from adoption
even where adoption would be in the child's best. interest.
To conclude, in providing substantive legal equality for all children
regardless of the marital status of their parents, the present Act no
more than fulfills the mandate of the Constitution. With the exception
of the child's right to inherit from his intestate father, which a grow-
ing number of States has provided without constitutional compulsion,
the equal treatment provided by the Act is not the Conference's "wish-
ful thinking." It is the law of the land. And now the Act may speak
for itself.
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V. APPENDIXES
PAGENO="0270"
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Appendixes
CONTENTS
~?ago
A~ 1Vashin~ton Revised Code-Chapter 74.20A - 265
B. State Statutes for Ascertainment of Paternity 281
C. Provisions of State Divorce Laws 282
(263)
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V. APPENDIXES
Appendix A. Washington Revised Code
(PLTBLIC ASSISTANCE)
CHAPTER 74.20A-SUPPORT OF DEPENDENT
CHILDREN.-ALTERNATIVE METHOD-
1971 ACT 1
Sections
T4.20A.OlO Purpose-Remedies additional.
T4.20A.020 Definitions.
74.20A.030 Payment. of public assistance for child constitutes debt
to department by natural or adoptive parents-Limita-
tions-Department subrogated to rights.
T4.20A.040 Notice of support debt based upon subrogation to or as-
signment of judgment-Service or mailing-Contents-
Action on. when.
74.20A.050 Notice of support debt based upon payment of public
assistance-Service-Contents-Collection warrant-Fair
hearing-Filing and serving of liens-Bond to release liens.
74.20A.055 Notice and finding of~ financial responsibility of respon-
sible p arent-Alternativé procedure.
T4.~OA.O6O Assertion of lien-Effect.
74.20A.OTO Service of lien.
14.20A.080 Order to withhold and deliver-Issue and service-Con-
tents-Effect-Delivery of property-Bond to release.
74.20A.090 Certain amount of earnings exempt from lien or order-
"Earnings" and "disposable earnings" defined.
74.20A.100 Civil liability upon failure to comply with order or lien.
74.20A.11O Release of excess to debtor.
74.20A.120 Banks, savings and loan associations, service effective only
as to branch office served.
74.20A.130 Distraint, seizure and sale of property subject to liens
under RCW 74.20A.060, procedure.
74.20A.140 Action for foreclosure of support lien-Satisfaction.
74.20A.150 Satisfaction of lien after foreclosure proceedings insti-
tuted-Redemption.
74.20A.160 Secretary may set debt payment schedule.
74.20A.170 Secretary may release lien or order or return seized prop-
erty-Effect.
74.20A.180 Secretary may make demand, file and serve liens, when
payments appear in jeopardy.
74.20A.190 Interest on debts due-Waiver.
74.20A.200 Judicial relief-Limitations.
74.20A.210 Unidentifiable moneys held in special account.
1 Through first extraordinary session of 1974.
(265)
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266
74.20A.220 Charging off child support debts as uncollectible.
74.20A.230 Employee debtor rights protected-Limitation.
74.20A.240 Assignment of earnings to be honored-Effect.
74.20A.250 Receipt of public assistance for a child as assignment of
rights in support obligation-Secretary as attorney for en-
dorsing drafts.
74.20A.260 Industrial insurance disability compensation payments
subject to lien and order to withhold and deliver.
74.20A.900 Severability-Alternative when method of notification
held invalid.
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74.20A.O1O Purpose-Remedies additional
Common law and statutory procedures governing the remedies for
enforcement of support for financially dependent minor children by
responsible parents have not proven sufficiently effective or efficient
to cope with the increasing incidence of financial dependency. The
increasing workload of courts. prosecuting attorneys, and the attorney
general has made such remedies uncertain, slow and inadequate,
thereby resulting in a growing burden on the financial resources of
the state. which is constrained to provide public assistance grants for
basic maintenance requirements when parents fail to meet their pri-
mary obligations. The state of Washington. therefore, exercising its
police and sovereign power, declares that the common law and stat-
utory remedies pertaining to family desertion and nonsupport of
minor dependent children shall be augmented by additional remedies
directed to the real and personal property resources of the responsible
parents. In order to render resources more immediately available to
meet the needs of minor children, it is the legislative intent that the
remedies herein provided are in addition to, and not in lieu of, exist-
ing law. It is declared to be the public policy of this state that this
chapter be construed and administered to the end that children shall
be maintained from the resources of responsible parents, thereby
relieving, at. least. in part. the burden presently borne by the general
citizenry through welfare programs.
74.20A.020 Definitions
Unless a different meaning is plainly required by the context, the
following words and phrases as hereinafter used in this chapter shall
have the following meanings:
(1) "Department" means the state department of social and health
services.
(2) "Secretary" means the secretary of the department of social
and health services, his designee or authorized representative.
(3) "Dependent child" means any. person under the age of twenty-
one who is not otherwise emancipated, self-supporting, married, or
a member of the armed forces of the~ United States.
(4) "Superior court order" means any judgment or order of the
superior court of the state of Washington or an order of a court of
comparable jurisdiction of another state ordering payment of a set
or determinable amount of support moneys.
(5) "Responsible parent" means the natural or adoptive parent of
a dependent child.
74.20A.030 Payment of public assistance for child constitutes
debt to department~~ by natural or adoptive par-
ents-Limitations-Department subrogated to
rights
Except as provided in this section, any payment of public assistance
money made to or for the benefit of any dependent child or children
(267)
PAGENO="0276"
268
creates a debt due and owing to the department by the natural or
adoptive parent or parents who are responsible for support of such chil-
dren in an amount equal to the amount of public assistance money so
paid: Provided, That where there has been a superior court order, the
debt shall be limited to the amount provided for by said order. The de-
partment shall have the right to. petition the appropriate superior
court for modification of a superior court order on the same grounds as
a party to said cause. Where a child has been placed in foster care, and
a written agreement for payment of support has been entered into by
responsible parent or parents and the department, the debt shall be
limited to the amount provided for in said agreement1: Provided,
That if a court order for support is or has been entered, the provisions
of said order shall prevail over the agreement. The department shall
adopt rules and regulations, based on ability to pay, with respect to
the level of support to be provided for in such agreements, or modi-
fications of such agreements based on changed circumstances.
The department shall be subrogated to the right of said child or
children or person having the care, custody, and control of said child
or children to prosecute or maintain any support action or execute any
administrative remedy existing under the laws of the state of Wash-
ington to obtain reimbursement of moneys thus expended. If a su-
perior court order enters judgment for an amount of support to be
paid by an obligor parent, the department shall be subrogated to the
debt created by such order, and said money judgment shall be deemed
to be in favor of the department. This subrogation shall specifically
be applicable to temporary spouse support orders, family maintenance
orders and alimony orders up to the amount paid by the department
in public assistance moneys to or for the benefit of a dependent child
or children but allocated to the benefit of said children on the basis
of providing necessaries for the caretaker of said children.
Debt under this section shall not be incurred by nor at any time
be collected from a parent or other person who is the recipient of
public assistance moneys for the benefit of minor dependent children
for the period such person or persons are in such status.
74.20A.040 Notice of support debt based upon subrogation to or
assignment of judgment-Service or mailing-Con-
tents-Action on, when
The secretary may issue a notice of a support debt accrued and/or.
accruing based upon subrogation to or assignment of the judgment
created by a superior court order. Said notice may be served upon the
debtor in the manner prescribed for the service of a summons in a
civil action or be mailed to the debtor at his last known address by
certified mail, return receipt requested, demanding payment within
twenty days of the date of receipt. Said notice of debt shall include
a statement of the support debt accrued and/or accruing, computable
on the amount required to be paid under any superior court order to
which the department is subrogated or has an assigned interest; a
statement that the property of the debtor is subject to collection ac-
tion; a statement that the property is subject to lien and foreclosure,
distraint, seizure and sale, or order to withhold and deliver; and a
statement that the net proceeds will be applied to the satisfaction of
the support debt. Action to collect said subrogated or assigned support
PAGENO="0277"
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debt by lien and foreclosure, or distraint, seizure and sale, or order to
withhold and deliver shall be lawful after twenty days from the date
of service upon the debtor or twenty days from the receipt or refusal
by the debtor of said notice of debt.
74.20A.050 Notice of support debt based upon payment of public
assistance - Service - Contents - Collection warfl
rant-Fair hearing-Filing and serving of liens-
Bond to release liens
In the absence of a superior court order the secretary may issue a
notice of a support debt accrued and/or accruing based upon payment
of public assistance to or for the benefit of any dependent child or
c~i~ldren. Said notice of debt shall be served upon the debtor in the
manner prescribed for the service of summons in a civil action, includ-
~ng summons by publication where appropriate and necessary. The
notice of debt. shall include a statement of the support debt accrued
and/or accruing, computable on the basis of the amount of public
assistance previously paid and to be paid in the future; a statement
of the amount of the monthly public assistance payment; a statement
of the name of the recipient. and the name of the child or children for
whom assistance is being paid; a demand for immediate payment of the
support debt or in the alternative, a demand that the debtor make
answer within twenty days of the date of service to the secretary stating
defenses to liability under RCW 74.20A.030; a statement that if no
answer is made on or before twenty days from the date of the service,
the support debt shall be assessed and determined subject to computa-
tion% and is sublect. to collection action; a statement that the property
of the debtor will be subject to lien, and foreclosure, distraint, seizure
and sale, or order to withhold and deliver. If no answer is had by the
secretary to the notice of debt on or before twenty days of the date of
Eervice. the support debt shall be assessed and determined subject to
computation and the secretary shall issue a collection warrant author-
izing collection action under this chapter. If the debtor, within twenty
days of date of service of the notice of debt, makes answer to the secre-
tary alleging defenses to liability under RCW 74.20A.030, said debtor
shall have the right to a fair hearing pursuant to RCW ~4.O8.07O and
74.08.090. The decision of the department in the fair hearing shall es-
tablish the liability of the debtor, if any, for repayment of public
assistance moneys expended to date as an assessed and determined sup-
port. debt. Action by the secretary under the provisions of this chapter
to collect said support debt shall be lawful from the date of issuance of
the decision in the fair hearing. If the secretary reasonably believes
that the debtor is not a resident of this state, or is about to move from
this state, or has concealed himself, absconded, absented himself or has
removed or is about to remove, secrete, waste, or otherwise dispose of
property which could be made subject to collection action to satisfy the
support debt, the secretary may file and serve liens pursuant to ROW
74.20A.060 and 74.20A.070 during pendency of the fair hearing or
thereafter, whether or not appealed: Provided, That no further action
tinder ROW 74.20A.080, 74.20A.130 and ?4.20A.140 may be taken on
such liens until final determination after fair hearing and/or appeal.
The secretary shall in such cases, make and file in the record of the fair
hearing an affidavit stating the reasons upon which said belief is
PAGENO="0278"
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founded: Provided, That the debtor may furnish a good and sufficient
bond satisfactory to the secretary during pendency of the fair hearing,
or thereafter, and in such case liens filed shall be released. If the de-
cision of the fair hearing is in favor of the debtor, all liens filed shall be
released.
74.20A.055 Notice and finding of financial responsibility of re-
sponsible parent-Alternative procedure
As an alternative to the hearing and appeal procedures provided in
ROW 74.20A.050, the secretary may, in the absence of a superior
court order, serve on the responsible parent a notice and finding of
financial responsibility requiring a responsible parent to appear and
show cause in a hearing held by the department why the finding of
responsibility and/or the amount thereof is incorrect, should not
be finally ordered, but should be rescinded or modified. This notice
and finding shall relate to the support debt accrued and/or accruing
under this chapter and/or ROW 26.l6.205~ including periodic pay-
ments to be made in the future for such period of time as the child or
children of said responsible parent are in need. Said hearing shall
be held pursuant to this 1973 amendatory act, chapter 34.04 ROW,
and the rules and regulations of the department, which shall provide
for a fair hearing.
The notice and finding of financial responsibility shall be served in
the same manner prescribed for the service of a summons in a civil
action. Any responsible parent who objects to all or any part of the
notice and finding shall have the right for not more than twenty days
from the date of service to request in writing a hearing, which request
shall be served upon the secretary or his designee by registered or
certified mail or personally. If no such request is made, the notice and
finding of responsibility shall become final. If a request is made, the
execution of notice and finding of responsibility shall be stayed pend-
ing the decision on such hearing, or any direct appeal to the courts from
that decision. Hearings may be held in the county of residence or
other place convenient to the responsible parent. Any such hearing
shall be a "contested case" as defined in ROW 34.04.010. The notice
and finding of financial responsibility shall set forth the amount the
department has determined the responsible parent owes, the support
debt accrued and/or accruing, and, as appropriate, the amount to be
paid thereon each month, all computable on the basis of the amount
of the monthly public assistance payment previously paid, or need
alleged, and the ability of the responsible parent to pay all~ or any
portion of the amount so paid and/or being paid and/or to be paid.
The notice and finding shall also include a statement of the name of
the recipient or custodian and the name of the child or children for
whom assistance is being paid or need is alleged; and/or a statement
of the amount of periodic future support payments as to which financial
responsibility is found.
The notice and finding shall include a statement that the responsible
parent may object to all or any part of the notice and finding, request
a hearing to show cause why said responsible parent should not be
determined to be liable for any or all of the debt, past and future,
determined, and the amount to be paid thereon.
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The notice and finding shall also include a statement that if the re-
sponsible parent fails to request a hearing that the support debt and
payments stated in the notice and finding, including periodic support
payments in the future. shall b~ assessed and determined and ordered
by the department and that this debt shall be subject to collection
action: a statement that the prbperty of the debtor, without further
advance notice or hearing, will be subject to lien and foreclosure, dis-
traint, seizure and sale, or order to withhold and deliver to satisfy
the debt.
If a hearing is requested, it shall be promptly scheduled, in no more
than thirty days. The hearing examiner shall determine the liability
and responsibility, if any, of the alleged responsible parent under
ROW 74.20A.030. and shall also determine the amount of periodic
payments to be made to satisfy past~ present or future liability under
ROW 74.20A.030 and/or 26.16.205. In making these determinations,
the hearing examiner shall include in his considerations (1) the neces-
sities and requirements of the child or children, exclusive of any in-
come of the custodian of said child or children, (2) the amount of
support debt claimed. (3) the public policy and intent of the legisla-
ture to require t.hat children be i~iaintained from the resources of re-
sponsible parents thereby relieving to the greatest extent possible the
burden borne by the general citizenry through welfare programs, and
(4) the abilities and resources of the responsible parent.
If the responsible parent fails to appear at the hearing, upon a
showing of valid service, the hearing examiner shall enter a decision
and order declaring the support debt and payment provisions sta.ted
in the notice and finding of financial responsibility to be assessed and
determined and subject to collection action. Within fifteen days of
entry of said decision and order, the responsible parent may petition
the department. to vacate said decision and order upon a showing of
any of the grounds enumerated in ROW 4.72.010.
The hearing examiner shall, within twenty days of the hearing,
enter findings, conclusions and a final decision determining liability
and responsibility and/or future periodic support payments. The de-
termination of the hearing examiner entered pursuant to this section
shall be entered as a decision and order and shall limit the support
debt under RCWT 74.20A.030 to the amounts stated in said decision:
Provided, That said decision establishing liability and/or future peri-
odic support payments shall be superseded upon entry of a superior
court order for support to the extent the superior court order is in-
consistent with the hearing order or decision: Provided further, That
in the absence of a superior court order either the responsible parent
or the department may petition the secretary or his designee for issu-
ance of an order to appear and show cause based on a showing of good
cause and material change of circumstances, to require the other party
to appear and show cause why the decision previously entered should
not be prospectively modified. Said order to appear and show cause
together with a copy of the affidavit upon which the order is based
shall be served in the manner of a summons in a civil action on the
other party by the petitiOning party. A hearing shall be set not less
than fifteen nor more than thirty days from the date of service, unless
extended for good cause shown. Prospective modification may be
PAGENO="0280"
272
ordered, but only upon a showing of good cause and material change
of circumstances.
The department, in its original determinations, and the hearing
examiner in making determinations based on objections to originil
determinations or on petitions to modify, shall consider the standards
promulgated pursuant to ROW 74.20.270 and any standards for de-
termination of support payments used by the superior court of the
county of residence of the responsible parent.
Debts determined pursuant to this section, accrued and not paid, are
sub3 ect to collection action under this chapter without further necessity
of action by the hearing examiner.
"Need" as used in this section shall mean the necessary costs of food,
clothing, shelter and medical attendance for the support of a dependent
child or children.
74.2OA.O~O Assertion of lien-Effect
Twenty-one days after receipt or refusal of notice of debt under
provisions of ROW 74.20A.040, or twenty-one days after service of
notice of debt, or as otherwise appropriate under the provisions of
ROW 74.20A.050, a lien may be asserted by the secretary upon the
real or personal property of the debtor. The claim of the depart-
ment for a support debt. not paid when due, shall be a lien against
all property of the debtor with priority of a secured creditor. This lien
shall be separate and apart from, and in addition to, any other lien
created by, or provided for, in this title. The lien shall attach to all real
and personal property of the debtor on the date of filing of such state-
ment with the county auditor of the county in which such property is
located. A lien against earnings shall atta.dh and be effective subject to
service requirements of ROW 74.20A.070 upon filing with the county
auditor of the county in which the employer does business or maintains
an office or agent for the purpose of doing business.
Whenever a support lien has been filed and there is in thepossession
of any person, firm, corporation, association, political subdivision or
department of the state having notice of said lien any property which
may be subject to the support lien, such property shall not be paid over,
released, sold, transferred, encumbered or conveyed, except as provided
for by the exemptions contained in ROW 74.20A.090 and 74.20A.130,
unless a written release or waiver signed by the secretary has been de-
livered to said person, firm, corporation, association, political subdi-
vision or department of the state or unless a determination has been
made in a fair hearing pursuant to ROW 74.20A.050 or by a superior
court ordering release of sa.id support lien on the basis t~hat no debt
exists or that the debt has been satisfied.
74.20A.070 Service of lien
The secretary may at any time after filing of a support lien serve a
copy of said lien upon any person, firm, corporation, association, politi-
cal subdivision or department of the state in possession of earnings, or
deposits or balances held in any bank account of any nature which are
due, owing, or belonging to said debtor. Said support lien shall be
served upon the person, firm, corporation, associataon, political sub-
division or department of the state either in the manner prescribed
for the service of summons in a civil action or by certified mail, return
receipt requested. No lien filed under ROW 74.20A.060 shall have
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273
any effect against earnings or bank deposits or balances unless it states
the amount of the support debt accrued and unless service upon said
person, firm, corporation, association, political subdivision or depart-
ment of the state in possession of earnings or bank accounts, deposits
or balances is accomplished pursuant to this section.
74.20A.080 Order to withhold and deliver-Issue and service-
Contents-Effect---Delivery of property-Bond to
release
After service of a notice of debt.~ as provided for in RCW 74.20A.040
stating a support debt accrued and/or accruing based upon subroga-
tion to or assignment of the amount required to be paid under any
superior court order or whenever a support lien has been filed pursuant
~o RCW 74.20A.060, the secretary is hereby authorized to issue to any
nerson. firm, corporation. association, political subdivision or depart-
nent of the state. an order to withhold and deliver property of any
md including, but not restricted to, earnings which are due, owing,
or belonging to the debtor, when the secretary has reason to believe
that there is in the possession of such person, firm, corporation, asso-
ciation. political subdivision or department of the state property which
is due. owing, or belonging to said debtor. The order to withhold and
deliver which shall also be served upon the debtor, shall state the
amount of the support debt accrued, and shall state in summary the
terms of RCW 74.20A.090 and 74.20A.100. The order to withhold and
cieliver shall be served in a manner prescribed for the service of a
summons in a civil action or by certified mail, return receipt requested.
Any person. firm, corporation, association, political subdivision or
aepartment of the state upon whom service has been made is hereby
required to answer said order to withhold and deliver within twenty
days. exclusive of the day of service, under oath and in writing, and
shall make true answers to the matters inquired of therein. In the
event there is in the possession of any such person, firm, corporation,
association. political subdivision or department of the state any prop-
erty which ma-v be subject to the claim of the department of social
and health services, such property shall be withheld immediately upon
receipt of the order to withhold and deliver and shall after the twenty
day period, upon demand, be delivered forthwith to the secretary. The
secretary shall hold said property in trust for application on the in-
debtedness involved or for return, without interest, in accordance with
final determination of liability or nonliability. In the alternative, there
ma-v be furnished to the secretary a good and sufficient bond~ satisfac-
tory to the secretary. conditioned upon final determination of liability.
Where money is due and owing under any contract of employment,
express or implied, or is held by any person, firm, corporation, or
association, political subdivision or department of the state subject to
withdrawal by the debtor, such money shall be delivered by remittance
payable to the order of the secretary. Delivery to the secretary of the
money or other property held or claimed shall satisfy the requirement
of the order to withhold and deliver. Delivery to the secretary shall
serve as full acquittance and the state warrants and represents that
it shall defend and hold harmless for such actions persons delivering
money or ~)roperty to the secretary pursuant to this chapter. The state
also warrants and represents that it shall defend and hold harmless
for such actions persons withholding money or property pursuant to
51-207 0 - 75 -- 19
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274
this chapter. The foregoing is subject to the exemptions contained in
ROW 74.20A.090 and 74.20A.130.
74.20A.090 Certain amount of earnings exempt from lien or order
-"Earnings" and "disposable earnings" defined
Whenever a support lien or order to withhold and deliver is served
upon any person, firm, corporation, association, political subdivision or
department of the state asserting a support debt against earnings and
there is in the possession of such person, firm, corporation, association,
political subdivision, or department of the state, any such earnings,
RCW 7.33.280 shall not apply, but fifty percent of the disposable earn-
ings shall be exempt and may be disbursed to the debtor whether such
earnings are paid, or to be paid weekly, monthly, or at other regular
intervals and whether there be due the debtor earnings for one week
or for a longer period. The lien or order to withhold and deliver shall
continue to operate and require said person, firm, corporation, associa-
tion, political subdivision, or department of the state to withhold
the nonexempt portion of earnings at each succeeding earnings dis-
bursement interval until the entire amount of the support debt stated
in the lien or order to withhold and deliver has been withheld. As used
in this chapter, the term "earnings" means compensation paid or pay-
able for personal services, whether denominated as wages, salary,
commission, bonus, or otherwise, and specifically includes periodic pay-
ments pursuant to pension or retirement programs, or insurance pol-
icies of any type, but does not include payments by any department or
division of the state based upon inability to work or obtain employ-
ment. Earnings shall specifically include all gain derived from capital,
from labor, or from both combined, including profit gained through
sale or conversion of capital assets. The term "disposable earnings"
means that part of the earnings of any individual remaining after the
deduction from those earnings of any amount be required by law to
be withheld.
74.20A.100 Civil liability upon failure to comply with order or
lien
Should any person, firm, corporation, association, political subdivi-
sion or department of the state fail to make answer to an order to
withhold and deliver within the time prescribed herein; or fail or re-
fuse to deliver property pursuant to said order; or after actual notice
of filing of a support lien, pay over, release, sell, transfer, or convey
real or personal property subject to a support lien to or for the benefit
of the debtor or any other person; or fail or refuse to surrender upon
demand property distrained under ROW 74.20A.130 or fail or refuse
to honor an assignment of wages presented by the secretary, said
person, firm, corporation, association, political subdivision or depart-
ment of the state shall be liable to the department in an amount equal
to one hundred percent of the value of the debt which is the basis of
the lien, order to withhold and deliver, distraint, or assignment of
wages, together w-ith costs, interest, and reasonable attorney fees.
74.20A.11O Release of excess to debtor
Whenever any person, firm, corporation~ association, political sub-
division or department of the state has in its possession earnings,
deposits, accounts, or balances in excess of the amount of the debt
PAGENO="0283"
275
claimed by the department plus one hundred dollars, such person, firm,
corporation, association, political subdivision or department of the
state may. without liability under this act, release said excess to the
debtor.
7-L20A.120 Banks, savings and loan associations, service effective
only as to branch office served
In the case of a bank, bank association, mutual savings bank, or
savings and loan associatioii maintaining branch offices, service of a
lien or order to withhold and deliver or any other notice or document
authorized by this chapter shall only be effective as to the accounts,
credits. or other personal property of the debtor in the particular
branch upon which service is made.
74.20A.130 Distraint, seizure and sale of property subject to
liens under RCW 74.20A.060, procedure
Whenever a support lien has been filed pursuant to RCW 74.20A.060,
the secretary may collect the support debt stated in said lien by the
distraint, seizure, and sale of the property subject to said lien. The
secretary shall give notice to the debtor and any person known to have
or claint an interest therein of the general description of the property
to be sold and the time and place of sale of said property. Said notice
shall be given to such persons by certified mail, return receipt requested
or by service in the manner prescribed for the service of a summons in
a civil action. A notice specifying t.he property to be sold shall be
posted in at least two public places in the county wherein the distraint
has been made. The time of sale shall not be less than ten nor more than
twenty days front the date of posting of such notices. Said sale shall
be conducted by the secretary, who shall proceed to sell such property
by parcel or by lot at a~ public auction, and who may set a minimum
reasonable price to include the~ expenses of making a levy and of
advertising the sale, and if the amount bid for such property at the sale
is not equal to the price so fixed, the secretary may declare such prop-
erty to be purchased by the department for such price, or may conduct
another sale of such property pursuant to the provisions of this section.
In the event of sale. the debtor's account shall be credited with the
amount for which the property has been sold. Property acquired by
the department as herein prescribed may be sold by the secretary at
public or private sale, and the amount realized shall be placed in the
state general fund to the credit of the department of social and health
services. In all cases of sale, as aforesaid, the secretary shall issue a bill
of sale or a deed to the purchaser, and said bill of sale or deed shall be
prima facie evidence of the right of the secretary to make such sale and
conclusive evidence of the regularity of his proceeding in making the
sale, and shall transfer to the purchaser all right, title, and interest of
the debtor in said property. The proceeds of any such sale, except in
those cases wherein the property has been acquired by the department,
shall be first applied by the secretary to reimbursement of the costs of
distraint and sale, and thereafter in satisfaction of the delinquent
account. Any excess which shall thereafter remain in the hands of the
secretary shall be refunded to the debtor. Sums so refundable to a
debtor may be subject to seizure or distraint by any taxing authority
of the state or its political subdivisions or by the secretary for new
sums due and owing subsequent tO the subject proceeding. Except as
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276
specifically provided in this chapter, there shall be exempt from dis-
traint, seizure, and sale under this chapter such property as is exempt
therefrom under the laws of this state.
74.20A.140 Action for foreclosure of support lien.-Satisfaction
Whenever a support lien has been filed, an action in foreclosure of
lien upon real or personal property may be brought in the superior
court of the county where real or personal property is or was located
and the lien was filed and judgment shall be rendered in favor of the
department for the amount due, with costs, and the court shall allow,
as part of the costs, the moneys paid for making and filing the claim
of lien, and a reasonable attorney's fee, and the court shall order any
property upon which any lien provided for by this chapter is estab-
}ished, to be sold by the sheriff of the proper county to satisfy the lien
and costs. The payment of the lien debt, costs and reasonable attorney
fees, at any time before sale, shall satisfy the judgment of foreclosure.
Where the net proceeds of sale upon application to the debt claimed do
not satisfy the debt in full, the department shall have judgment over
for any deficiency remaining unsatisfied and further levy and sales
upon other property of the judgment debtor may be made under the
same execution. In all sales contemplated under this section, advertis-
ing of notice shall only be necessary for two weeks in a newspaper
published in the county where said property is located, and if there
be no newspaper therein, then in the most convenient newspaper
having a circulation in such county. Remedies provided for herein
are alternatives to remedies provided for in other sections of this
chapter.
74.20A.150 Satisfaction of lien after foreclosure proceedings
instituted-Redemption
Any person owning real property, or any interest in real property,
against which a support lien has been filed and foreclosure instituted,
shall have the right to pay the amount due, together with expenses of
the proceedings and reasonable attorney fees to the secretary and upon
such payment the secretary shall restore said property to him and all
further proceedings in the said foreclosure action shall cease. Said
person shall also have the right within two hundred forty days after
sale of property foreclosed under RCW 74.2OAd4O to redeem said
property by making payment to the purchaser in the amount paid by
the purchaser plus interest thereon at the rate of six percent per
annum.
74.20A.160 Secretary may set debt payment schedule
The secretary may at any time consistent with the income, earning
capacity and resources of the debtor, set or reset a level and schedule
of payments to be paid upon the debt.
74.20A.170 Secretary may release lien or order or return seized
property-Effect
The secretary may at any time release a support lien, or order to
withhold and deliver, on all or part of the property of the debtor, or
return seized property without liability, if assurance of payment is
deemed adequate by the secretary, or if said action will facilitate the
collection of the debt, but said release or return shall not operate to
prevent future action to collect from the same or other property.
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277
74.20A.180 Secretary may make demand, file and serve liens,
when payments appear in jeopardy
If the secretary finds that the collection of any support debt based
upon subrogation to or assignment of the amount of support ordered
by any superior court order is in jeopardy, he may make demand
under RCW 74.20A.040 for immediate payment of the support debt,
and upon failure or refusal imthediately to pay said support debt, he
may file and serve liens pursuant to RCW 74.20A.060 and 74.20A.070,
without regard to the twenty day period provided for in RCW
74.20A.040: Provided. That no further action under RCW 74.20A.080,
74.20A.130 and 74.20A.140 may be taken until the notice requirements
of RCW 74.20A.040 are met.
7L20A.190 Interests on debts due-Waiver
Interest of six percent per annum on any support debt due and
owing to the department under ICW T4.20A.030 may be collected by
the secretary. No provision of this chapter shall be construed to
require the secretary to maintain interest balance due accounts and
said interest may be waived by the secretary, if said waiver would
facilitate the collection of the debt.
74.20A200 Judicial relief-Limitations
Any person against whose property a support lien has been filed or an
order to withhold and deliver has been served pursuant to this chapter
may apply for relief to the superior court of the county wherein the
property is located on the basis that no support debt is due and owing:
Pro ridecl. That judicial relief shall not be granted except as provided
for in RCW ~4.0S.0S0 whenever a fair hearing has been requested pur-
suant to RCW 74.20A.050. Liens filed during pendency of fair hear-
ing or court review shall be reviewed pursuant to RCW 74.08.080. It is
the intent of this chapter that jurisdictional and constitutional issues,
if any. shall be subject to review, but that adminisrative remedies be
exhausted prior to judicial review.
74.20A.210 Unidentifiable moneys held in special account
All moneys collected in fees, costs, attorney fees, interest payments,
or other funds received by the secretary which are unidentifiable as to
the support account against which they should be credited, shall be held
in a special fund from which the secretary may make disbursement
for any costs or expenses incurred in the administration or enforce-
ment of the provisions of this chapter.
71.20A.220 Charging off child support debts as uncollectible
Any support debt due the department from a responsible parent
which the secretary deems uncollectible may be transferred from ac-
counts receivable to a suspense account and cease to be accounted as an
asset: Provided, That at any time after six years from the date a
support debt was incurred, the secretary may charge off as uncollectible
any support debt upon which the, secretary finds there is no available,
practical. or lawful means by which said debt may be collected: Pro-
rided further, That no proceedings or action under the provisions of
this chapter may be begun after expiration of said six year period to
institute collection of a support debt. Nothing herein shall be construed
to render invalid or nonactionable a support lien filed prior to the
expiration of said six year period or an assignment of earnings or
PAGENO="0286"
278
order to withhold and deliver executed prior to the expiration of said
six year period.
74.20A.230 Employee debtor rights protected-Limitation
No employer shall discharge an employee for reason that an assign-
ment of earnings has been presented in settlement of a support debt or
that a support lien or order to withhold and deliver has been served
against said employee's earnings: Provided, That this provision shall
not apply if more than three support liens o~ orders to withhold and
deliver are served upon the same employer within any period of twelve
consecutive months.
74.20A.240 Assignment of earnings to be honored-Effect
Any person, firm, corporation, association, political subdivision or
department of the state employing a person owing a support debt or
obligation, shall honor, according to its terms, a duly executed assign-
ment of earnings presented by the secretary as a plan to satisfy or
retire a support debt or obligation. This requirement to honor the
assignment of earnings and the assignment of earnings itself shall be
applicable whether said earnings are to be paid presently or in the
future and shall continue in force and effect until released in writing
by the secretary. Payment of moneys pursuant to an assignment of
earnings presented by the secretary shall serve as full acquittance
under any contract of employment, and the state warrants and repre-
sents it shall defend and hold harmless such action taken pursuant
to said assignment of earnings. The secretary shall be released from
liablity for improper receipt of moneys under an assignment of earn-
ings upon return of any moneys so received.
74.20A.250 Receipt of public assistance for a child as assignment
of rights in support ob1igation-Secre~ary as at-
torney for endorsing drafts
By accepting public assistance for or on behalf of a child or children,
the recipient shall be deemed to have made assignment to the depart-
ment of any and all right, title, and interest in any support obligation
owed to or for said child or children up to the amount of public assist-
ance money paid for or on behalf of said child or children for such
term of time as such public assistance moneys are paid. The recipient
shall also be deemed, without the necessity of signing any document,
to have appointed the secretary as his or her true and lawful attorney
in fact to act in his or her name, place, and stead to perform the specific
act of endorsing any and all drafts, checks, money orders or other
negotiable instruments representing support payments which are re-
ceived on behalf of said child or children as reimbursement for the
public assistance moneys previously paid to said recipient.
74.20A.260 Industrial insurance disability compensation pay-
ments subject to lien and order to withhold and
deliver
One hundred percent of the temporary total disability payments and
permanent total disability compensation to a workman allocated by
RCW 51.32.090 and 51.32.060 respectively to the spouse and children
of a workman, and forty percent of the net proceeds of payments to a
workman for permanent partial disability under RCW 51.32.080 shall
PAGENO="0287"
270
not be classified as "earnings" but shall be subject to lien or order to
withhold and deliver and said lien or order to withhold and deliver
s:nall continue to operate and require any political subdivision or de-
partment of the state to withhold the above stated portions at each sub-
sequent disbursement or receipt interval until the entire amount of the
support debt stated in the lien or order to withhold and deliver has been
withheld.
7-L2OA.900 Severability-Alternative when method of notifica-
tion held invalid
If any provision of this chapter or the application thereof to any per-
son or circumstance is held invalid, such invalidity shall not affect other
provisions or applications of this chapter which can be given effect
without the invalid provision or application, and to t.his end the provi-
sions of this chapter are severable.
If a~nv method of notification provided for in this 1971 act is held in-
valid. service as provided for by the laws of the state of Washington
for service of process in a civil action shall be substituted for the
method held invalid.
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PAGENO="0289"
Appendix B. State Statutes for Ascertainment of Paternity
The following State statutes authorize actions for the ascertain-
ment of the paternity of illegitimate children:
Alabama Code § 27-12
Alaska Statutes § 11.35.100
Arizona Revised Statutes § 12-841
Arkansas Statutes § 34-2421
California Civil Code § 231
Colorado Revised Statutes § 19-6-101
Connecticut General Statutes 52-435a
Delaware Code § 29-2510
District of Columbia Code § 11-1101; § 16-2341
Florida Statutes § 142.011
Georgia Code § 14-201
Hawaii Revised Statutes § 519-1
Idaho Code § 1-1101
Illinois Statutes § 106 3/4-51
Indiana Code § 31-4-1-1
Iowa Code §~ 615.1
Kansas Statutes § 38-1101
Kentucky Revised Statutes § 401.011
Louisiana Statutes (Civil Code) § 201
Maine Revised Statutes § 211
Maryland Code § 16-06A
Massachusetts General Laws § 273-11
Michigan Compiled Laws § 772-714
Mlimesota Statutes 257-251
MississipDj Code § 93-9-1
Missouri Statutes 559-353
Montana Revised Code § 93-2901
Nebraska Revised Statutes § 13-101
Nevada Revised Statutes § 126-010
New Hampshire Revised Statutes § 168.A :1
New Jersey Statutes § 9 :11-1
New Mexico Statutes § 24-401
New York Family Court Act § 511
North Carolina General Statutes § 49-14
North Dakota Code § 3236-1
Ohio Code § 3111.01
Oklahoma Statutes § 10-71
Oregon Revised Statutes § 109.125
Pennsylvania Statutes § 18-4323
Rhode Island General Laws § 15-8-1
South Carolina Code § 20-303
South Dakota § 37-2101
Tennessee Code § 36-222
Texas Statutes (Family Code) § 11.01
ttah Code § 78-45a-1
Vermont Statutes § 15-331
Virginia Code § 20-61.1; 19.1-268
Washington Code 26.24.010
West Virginia Code 48-7-1
Wisconsin Statutes 52.21
Wyoming Statutes 14-59
(281)
PAGENO="0290"
Appendix C.-Provisions of State Divorce Laws
Division of property
Grounds for divorce Court Court Community Alimony
- cannot empowered property-
What the divorce laws say Breakdown Standard fault Incompati- Alcoholism or make a to distribute Joint To either
ceast to coast of marriage grounds bility Separation drug use distribution ownership spouse To wife only No alimony
Alabama X X X X X X
Alaska X X X X X
Arizona X
Arkansas X X X X X
California X
Colorado X
Connecticut X X X X X X
Delaware X
Districtof Columbia X X X - X
Florida X X X
Georgia X X X X X
Hawaii X X
Idaho X X >< X X
Illinois X X X
Indiana X >< X X
Iowa X
Kansas X X X X X
Kentucky X
Louisiana X X X -- X X°
Maine X >< X X
Maryland X X
Massachusetts X X X X
Michigan X
Minnesota X
Mississippi X X >< X
Missouri X
PAGENO="0291"
Montana X X - -------- X - X
Nebraska - X ...~......- X X
Nevada - X - X ~ ..... - X
New Hampshire - X X - X X - ....- ~,. -
Newiersey X X X X ..- X ...-. X -- *-
NewMexico X >< ~ ..->< X
NewYork X X --.....- X X
NorthCarolina X X ------. ---X
NorthDakota X X X X ..-... X
Ohio X X >< -.--- .. X
Oklahoma X X X X ----..---
Oregon X X X -
Pennsylvania X X --
Rhodeisland X X >< X
SnethCarnlina X X X X
SnuthOakota X >< X X
Tennessee X X X X X
Tesas X X X
Utah X X X X X
Vermont X X X - X
Virginia X X X X
Washington X x X
WestVirginia X X X X X
Wisconsin X X X X X
Wyoming X X X X X
Louisiana limits alimony to 3-~ ot the husband's income. with eormal tinancial support previded. In division el preperty, when court cannet make a diatribution
5 New Hampshire limits alimeny to a term et 3 years (subject to renewal). preperty goes to husband or mite, depending en who has legal title.
Nerth Carelina prevides for alimony enly if the spouse is unable to work. . . . . . .
Seurce: Reprinted Irem the Feb. 10, 1975 issue et Business Week with permisaien~ Registered 19Th
Netes: Standard fault greunds include adultery, cruelty, desertion. Separatien means lining apart by McGraw-Hill, Inc.
PAGENO="0292"
PAGENO="0293"
PAGENO="0294"
286
TABLE L-AFDC families, by number of illegitimate recipient children, 1973
NUMBER OF ILLEGITIMATE RECIPIENT CHILDREN
SPECIFIED TOTAL 2 3 4 5
HEW REGION AND STATE FAMILIES NONE CHILD CHILDREN CHILDREN CHILDREN CHILDREN
TOTAL:
NUMBER 2989891 1625616 757613 323911
PERCENT 100.0 54.4 25.3 10.8
HEW REGION:
II 529049 55.3 22.3 11.4
III 335952 52.5 26.0 11.9
IV 459012 43.4 28.6 14.9
V 619096 56.9 23.9 10.2
VI 255455 48.3 26.3 12.8
VII 121415 56.2 25.7 9.6
VIII 63278 70.5 21.8 4.5
IX 448296 57.7 28.3 9.1
7.6 3.7 2.5
6.4 2.6 0.9
6.2 2.4 2.5
2.2 0.9 0.6
2.4 0.8 0.7
7.1 5.2 2.8
4.5 3.0 1.3
6.7 2.8 1.5
4.0 1.2 0.7
1.4 5 8
3.2 1.7 0.6
3.9 2.0 1.3
8.9 4.3 2.8
6.6 3.2 1.8
4.1 2.4 1.0
1.3 0.9
9.1 3.9 2.8
4.9 3.0 1.9
4.4 1.1 8
4.8 3.0 `1.3
6.6 3.7 1.2
5.5 4.7 1.8
2.1 1.0 0.5
3.3 2.0 1.3
3.0 2.3 0.7
4.1 1.4 1.4
2.3 5 1
3.1 0.9 8
5.3 3.0 2.1
6.1 2.9 0.9
6.1 3.8 2.0
3.0 0.8 1.0
3.2 2.0
(CONTINUED)
138373 73024 36263
4.6 2.4 1.2
5.6
4.9
6. 2
4.5
6.3
3.9
1.8
2.5
3.2 1.1
2.0 1.6
3.7 2.0
2.2 1.1
3.1 1.5
2.1. 1.3
0.6 0.4
1.1 0.6
STATE:
ALABAMA 45531 35.4 30.0 16.9
ARIZONA 11600 57.8 22.8 8.4
ARKANSAS 23065 50.5 25.9 10.8
CALIFORNIA 411992 57.5 28.9 9.1
COLORADO 31874 68.5 22.5 4.4
FLORIDA 94622 40.9. 27.2 14.7
GEORGIA 99718 45.2 32.3 12.7
ILLINOIS 193107 51.7 21.9 13.2
INDIANA 49526 53.8 28.7 10.7
IOWA 21895 68.8 23.5 5.4
KANSAS 20189 63.3 23.7 7.0
KENTUCKY 42282 59.0 24.4 8.3
LOUISIANA 65125 40.4 25.7 14.9
MARYLAND 61576 46.7 27.8 13.1
MICHIGAN 160215 60.2 22.3 9.0
MINNESOTA 37550 67.5 * 24.5 ` 5.0
MISSISSIPPI 46414 38.2 27.9 14.8
MiSSOURI 67699 49.2 27.4 11.8
NEBRASKA 11632 60.8 23.1 8.9
NEW JERSEY 114505 53.7 22.8 12.7
NEW YORK 358294 49.6 25.2 12.6
NORTH CAROLINA.... 43991 42.4 26.7 16.5
NORTH DAKOTA 4013 65.7 25.9 4.5
OHIO 137164 58.0 25.9 9.0
OKLAHOMA 29214 58.8 23.5 10.6
PENNSYLVANIA 169766 57.2 23.3 10.9
RHODE ISLAND 14581 71.3 18.6 6.6
SOUTH DAKOTA 6356 64.1 24.1 6.9
TENNESSEE 56605 44.7 30.8 12.5
TEXAS 120932 49.9 26.6 12.7
VIRGINIA 45558 43.3 30.5 13.2
WEST VIRGINIA 20517 69.1 17.4 8.0
WISCONSIN 41534 59.2 26.1 8.7
B NCT COMPUTED; BASE TOO SMALL.
PAGENO="0295"
287
TABLE i.-AFDC families, by number of illegitimate recipient children,
1973- COntinued
~7JMBER OF ILLEGITIMATE RECIPIENT CHILDREN
SPECIFIED TOTAL
HEW REGION AND STATE FAMILIES
7
CHILDREN CHILDREN
8 9
CHILDREN CHILDREN
1.0
OR MORE
CHI LDREN
TOTAL:
2600
832
~JMIER
2989891
20858
7770
3031
PERCENT
100.0
0.7
0.3
0.1
0.1
0.0
HEW REGION:~
U
0.0
II
529049
0.7
0.3
U
U
0.0
III
335952
0.8
0.3
0.1
U
IV
451012
1.1
0.5
0.2
U
V
619096
0.7
0.2
U
0.1
U
VI
255455
0.6
0.3
0.5
U
U
VII
121415
0.7
0.3
U
U
0.0
`.111
63278
0.2
U
0.0
0.0
IX
441296
0.6
0.1
0.0
STATE:
U
ALAEAMA..
45531
2.2
U
0.6
0.0
0.0
0.0
ARIZONA
19600
0.6
0.6
U
U
U
ARKANSAS
23065
0.8
U
0.0
0.0
CALIFORNIA.
411992
0.6
U -
0.0
0.0
--
U
0.0
COLORADO
31874
4
U
U
0.0
FLORIDA~
94622--
0.9 --~-
0.8
U
0.0
EERGIA
99718
0.7
U
0.0
U
U
ILL1"IS
193107
1.1
4
U
4
0.0
45526
0.6
0.0
0.0
0.0
21895
4
0.0
0.0
0.0
0.0
KA'.SAS...
20189
U
U
U
0.0
U
KENTUCKY
42282
0.7
U
U
0.0
Lf~'JISItNA
65125
0.8
0.7
U
0.0
MARYLAND
61576
U
0.0
0.0
MICHIGAN
160215
0.8
0.0
4
0.0
0.0
MINNESOTA
37550
U,
0.0
ii
U
U
MISSISSIPPI
46414
1.9,
0.5
4
U
0.0
MISSOURI
67699
1.0
0.0
NESRASKA
11632
0.6
4
U
0.0
NEW JERSEY
114805
1.0
U
0.0
0.0
0.0
NEW YORK
358294
0.7,
0.4
U
U
0.0
NORTH CAROLINA....
43891
1.3,
0.6
0.0
0.0
0.0
NORTH DAKOTA
4013
U
U
0.0
4
0.0
137164
U
8
U
U
0.0
OKLAHOUA
29214
U
U
U
0.0
0.0
PENNSYLVANIA
169766
1.1'
U
0.0
U
U
RHODE ISLAND
14581
U':
U
0.0
0.0
0.0
SOUTH DAKOTA
6356
4
U
4
0.0
0.0
TENNESSEE..'
56605-'
0.9
U
U
0.0
TEXAS
120932
0.6
0.0
0.0
0.0
VIRGINIA
45958
0.8~
ii
0.0
0.0
WEST VIRGINIA
20517
0.6,
4
0.0
0.0
WISCONSIN
41.534
U
0.0
TOO
SMALL.
U NOT COMPUTED; BASE
Source: 1973 AFDC Study, part I, table 20.
PAGENO="0296"
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