# 1862 Territory of Dakota Session Laws/Chapter 8/Title VIII

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[TITLE VIII.]
CHAPTER II.—Replevin of Property.
Specific personal property may be demanded, when.Sect. 171. The plaintiff in an action to recover the possession of specific personal property, may, at the commencement of the suit, or at any time before answer, claim the immediate delivery of such property, as provided in this chapter.
Order for same, when and how made.Sect. 172. An order for the delivery of property to the plaintiff, shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing: 1. A description of the property claimed. 2. That the plaintiff is the owner of the property or has a special ownership or interest therein, stating the facts in relation thereto, and that he is ​entitled to the immediate, possession of the property. 3. That the property is wrongfully detained by the defendant. 4. That it was not taken in execution or any order or judgment against said plaintiff, or for the payment of any tax, fine, or amercement, assessed against him, or by virtue of an order of delivery issued under this chapter, or any other mesne or final process issued against the plaintiff.
Same.Sect. 173. The order for the delivery of the property to the plaintiff shall be addressed and delivered to the sheriff. It shall state the names of the parties, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order on a day to be named therein.
Return day of order.Sect. 174. The return day of the order of delivery, when issued at the commencement of the suit, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it issued.
Order, how executed.Sect. 175. The sheriff shall execute the order by taking the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detention of the property, or leave such copy at his usual place of residence.
Property delivered, when.Sect. 176. The sheriff or other officer shall not deliver to the plaintiff, his agent or attorney, the property so taken, until there has been executed by one or more sufficient sureties of the plaintiff, a written undertaking to the defendant, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him. The undertaking shall be returned with the order.
Value, how ascertained.Sect. 177. For the purpose of fixing the amount of the undertaking, the value of the property taken shall be ascertained by the oath of two or more responsible persons, whom the sheriff or other officer shall swear truly to assess the value thereof.
If undertaking not given.Sect. 178. If the undertaking, required by section one hundred and seventy-six, be not given within twenty-four hours from the taking of the property under said order, the sheriff or other officer shall return the property to the defendant. And if the sheriff or other officer deliver any property so taken to the plaintiff, his agent or attorney, or ​keep the same from the defendant, without taking such security within the time aforesaid, or if he take insufficient security, he shall be liable to the defendant in damages.
Defendant may except to sureties.Sect. 179. The defendant may, within twenty-four hours from the time the undertaking, referred to in the preceding section, is given by the plaintiff, give notice to the sheriff that he excepts the sufficiency of the sureties. If he fail to do so, he must be deemed to have waived all objections to them. When the defendant excepts, the sureties must justify upon notice, as bail on arrest. The sheriff, or other officer, shall be responsible for the sufficiency of the sureties, until the objection to them is waived as above provided, or until they justify. The property shall be delivered to the plaintiff when the undertaking, required by section one hundred and seventy-six, has been given.
If judgement be then rendered against the plaintiff.Sect. 180. If the property has been delivered to the plaintiff and judgment be rendered against him on demurrer, or if he otherwise fail to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impannel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant, at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then, and in either case, they shall assess such damages for the defendant as are right and proper; for which, with costs of suit, the court shall render judgment for the defendant.
Judgement for defendant in such case.Sect. 181. In all cases when the property has been delivered to the plaintiff, where the jury shall find upon issue joined for the defendant, they shall also find whether the defendant had the right of property, or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant; for which, with costs of suit, the court shall render judgment for the defendant.
Judgement for plaintiff in such case.Sect. 182. In all cases when the property has been delivered to the plaintiff, where the jury shall find for the plaintiff, on an issue joined, or on inquiry of damages upon a judgment by default, they shall assess adequate damages to the ​plaintiff for the illegal detention of the property, for which, with costs of suit, the court shall render judgment for defendant.
When property claimed has been returned.Sect. 183. When the property claimed has not been taken, or has been returned to the defendant by the sheriff, for want of the undertaking required by section one hundred and seventy-six, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper; but if the property be returned for want of the undertaking required by section one hundred and seventy-six, the plaintiff shall pay all costs made by taking the same.
An order for delivery may be directed to any other county.Sect. 184. An order may be directed to any other county than the one in which the action is brought, for the delivery of the property claimed. Several orders may issue at the same time, or successively, at the option of the plaintiff; but only one of them shall be taxed in the costs, unless otherwise ordered by the court.
Officer may break open building or inclosure.Sect. 185. The sheriff or other officer in the execution of the order of delivery, may break open any building or inclosure, in which the property claimed, or any part thereof, is concealed; but not until he has been refused an entrance into said building or inclosure, and the delivery of the property, after having demanded the same.
No suit instituted on undertaking, except when.Sect. 186. No suit shall be instituted on the undertaking given under section one hundred and seventy-six, before an execution issued on a judgment in favor of the defendant in the action shall have been returned, that sufficient property, whereon to levy and make the amount of such judgment, cannot be found in the county.
An order issued without affidavit to be set aside.Sect. 187. Any order for the delivery of property issued under section one hundred and seventy-two, without the affidavit required thereby, shall be set aside at the cost of the clerk issuing the same, and such clerk, as well as the plaintiff, shall also be liable in damages to the party injured.
CHAPTER III. Attachment.—Article I. General Attachment.—II. Attachment in Certain Actions.
Subdivision 1.—Grounds of Attachment.
Plaintiff may have attachment, when.Sect. 188. The plaintiff, in a civil action for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defendant and upon the grounds herein stated: 1. When the defendant, or one of several defendants, is a foreign corporation, or a nonresident of this territory; or, 2. Has absconded with the intent to defraud his creditors; or, 3. Has left the county of his residence, to avoid the service of a summons; or, 4. So conceals himself that a summons cannot be served upon him; or, 5. Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors; or, 6. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or, 7. Has property, or rights in action, which he conceals; or, 8. Has assigned, removed, or disposed of, or is about to dispose of his property, or a part thereof, with the intent to defraud his creditors; or, 9. Fraudulently contracted the debt, or incurred the obligation for which suit is about to be, or has been brought. But an attachment shall not be granted on the ground that the defendant is a foreign corporation or a non-resident of this territory, for any claim other than a debt or demand arising upon contract, judgment, or decree.
Subdivision 2.—How an Attachment is obtained.
Order of attachment, when made.Sect. 189. An order of attachment shall be made by the clerk of the court, in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing: 1. The nature of the plaintiff's claim. 2. That it is just. 3. The amount which the affiant believes the plaintiff ought to recover; and 4. The existence of some one of the grounds for attachment, enumerated in the preceding section.
​Nature of undertaking, and when necessary.Sect. 190. When the ground of the attachment is, that the defendant is a foreign corporation, or a non-resident of this territory, the order of attachment may be issued without an undertaking. In all other cases, the order of attachment shall not be issued by the clerk, until there has been executed in his office, by one or more sufficient sureties of the plaintiff, to be approved by the clerk, an undertaking not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay the defendant all damages, which he may sustain by reason of the attachment, if the order be wrongfully obtained.
Directed to sheriff, and its substance.Sect. 191. The order of attachment shall be directed and delivered to the sheriff. It shall require him to attach the lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, moneys, and effects of defendant in his county, not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable costs of the action, not exceeding fifty dollars.
Orders may be issued to different sheriffs.Sect. 192. Orders of attachment may be issued to the sheriffs of different counties; and several of them may, at the option of the plaintiff, be issued at the same time, or in succession; but such only as have been executed, shall be taxed in the costs, unless otherwise directed by the court.
Return day.Sect. 193. The return day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it issued.
Subdivision 3.—Execution and Return thereof.
If several issued, executed in order.Sect. 194. When there are several orders of attachment against the same defendant, they shall be executed in the order in which they were received by the sheriff.
When and how executed.Sect. 195. The order of attachment shall be executed by the sheriff without delay. He shall go to the place where the defendant's property may be found, and there, in the presence of two residents of the county, declare that by virtue of said order, he attaches said property at the suit of such plaintiff; and the officer, with the said residents, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be ​signed by the officer and residents, and returned with the order. Where the property attached is real property, the officer shall leave with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order. Where it is personal property and accessible, he shall take the same into his custody, and hold it subject to the order of the court.
Property released on execution of undertaking.Sect. 196. The sheriff shall deliver the property attached to the person in whose possession it was found, upon the execution by such person, in the presence of the sheriff, of an undertaking to the plaintiff, with one or more sufficient sureties, resident in the county, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property or its appraised value in money, shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person so bound.
If property cannot be reached, garnishee ordered to answer.Sect. 197. When the plaintiff, his agent, or attorney, shall make oath in writing that he has good reason to and does answer believe that any person or corporation, to be named and within the county where the action is brought, has property of the defendant (describing the same) in his possession, if the officer cannot come at such property, he shall leave with such garnishee a copy of the order of attachment, with a written notice, that he appear in court at the return of the order of attachment, and answer as provided in section two hundred and eleven.
Order on garnishee, how served.Sect. 198. The copy of the order and the notice shall be served upon the garnishee, as follows: If he be a person, they shall be served upon him personally, or left at his usual place of residence; if a corporation, they shall be left with the president or other officer of the same, or a managing agent thereof.
Different attachments may be made by same officer.Sect. 199. Different attachments of the same property may be made by the same officer, and one inventory and appraisement shall be sufficient, and it shall not be necessary to return the same with more than one order.
If attached under subsequent orders.Sect. 200. Where the property is under attachment, it shall be attached under subsequent orders as follows: 1. If it ​be real property, it shall be attached in the manner prescribed in section one hundred and ninety-five. 2. If it be personal property, it shall be attached as in the hands of the officer, and subject to any previous attachment. 3. If the same person or corporation be made a garnishee, a copy of the order and notice shall be left with him, in the manner prescribed in section one hundred and ninety-seven.
Officer's return.Sect. 201. The officer shall return upon every order of attachment what he has done under it. The return must show the property attached, and the time it was attached. When garnishees are served, their names, and the time each was served, must be stated. The officer shall also return with the order all undertakings given under it.
Property bound from time of service, &c.Sect. 202. An order of attachment binds the property attached from the time of service, and the garnishee shall stand liable to the plaintiff in attachment for all property, moneys, and credits in his hands, or due from him to the defendant, from the time he is served with the written notice mentioned in section one hundred and ninety-seven; but where the property is attached in the hands of a consignee, his lien thereon shall not be affected by the attachment.
Subdivision 4.—Disposition of Attached Property.
Receiver appointed, to give bond.Sect. 203. The court, or any judge thereof during vacation, may, on the application of the plaintiff, and on good cause shown, appoint a receiver, who shall take an oath faithfully to discharge his duty, and shall give an undertaking to the Territory of Dakota, in such sum as the court or judge may direct, and with such security as shall be approved by the clerk of the court, for the faithful performance of his duty as such receiver, and to pay over all money, and account for all property, which may come into his hands by virtue of his appointment, at such times and in such manner as the court may direct.
His duties.Sect. 204. Such receiver shall take possession of all notes, due-bills, books of account, accounts, and all other evidences of debt that have been taken by the sheriff or other officer, as the property of the defendant in attachment, and shall proceed to settle and collect the same. For that purpose, he may commence and maintain actions in his own name as ​such receiver; but in such actions no right of defence shall be impaired or affected.
Same.Sect. 205. Such receiver shall forthwith give notice of his appointment to the persons indebted to the defendant in attachment. The notice shall be written or printed, and shall be served on the debtor or debtors, by copy personally, or by copy left at the residence, and from the date of such service, the debtors shall stand liable to the plaintiff in attachment for the amount of moneys and credits in their hands, or due from them to the defendant in attachment, and shall account therefor to the receiver.
Subject to order of court.Sect. 206. Such receiver shall, when required, report his proceedings to the court, and hold all moneys collected by him, and property which may come into his hands, subject to the order of the court.
When receiver not appointed, officer to act as such.Sect. 207. Where a receiver is not appointed by the court or a judge thereof, as provided in section two hundred and three, the sheriff or other officer attaching the property shall have all the powers and perform all the duties of a receiver appointed by the court or a judge, and may, if necessary, commence and maintain actions in his own name as such officer. He may be required to give security, other than his official undertaking.
Court may make orders for preservation of property.Sect. 208. The court shall make proper orders for the preservation of the property, during the pendency of the suit. It may direct a sale of property, when, because of its perishable nature or the costs of keeping it, a sale will be for the benefit of the parties. In vacation, such sale may be ordered by the judge of the court. The sale shall be public, after such advertisement as is prescribed for the sale of like property on execution, and shall be made in such manner, and upon such terms of credit, with security, as the court [or] judge, having regard to the probable duration of the action, may direct. The proceeds, if collected by the sheriff, with all the moneys received by him from garnishees, shall be held and paid over by him, under the same requirement and responsibilities of himself and sureties, as are provided in respect to money deposited in lieu of bail.
Subdivision 5.—Proceedings upon Attachment.
Attachment discharged upon execution of undertaking.Sect. 209. If the defendant, or any other person on his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff by one or more sureties, resident in the county, to be approved by the court, in double the amount of the plaintiff's claim as stated in his affidavit, to the effect that the defendant shall perform the judgment of the court, the attachment in such action shall be discharged, and restitution made of any property taken under it, or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee in such action for any property of the defendant in his hands.
Undertaking, how executed.Sect. 210. The undertaking mentioned in the last section, may, in vacation, be executed in the presence of the sheriff having the order of attachment in his hands, or, after the return of the order, before the clerk, with the same effect as if executed in court; the sureties in either case to be approved by the officer before whom the undertaking is executed.
When garnishee shall appear.Sect. 211. The garnishee shall appear as follows: If the order of attachment be returned during a term of court, he shall appear at that term; if the order be returned during vacation, he shall appear at the term next after its return. He shall appear and answer, under oath, all the questions put to him touching the property of every description and credits of the defendant, in his possession or under his control, and he shall disclose truly the amount owing by him to the defendant, whether due or not, and in case of a corporation, any stock therein held by or for the benefit of the defendant at or after the service of notice.
Privileges of garnishee.Sect. 212. A garnishee may pay the money owing to the defendant by him, to the sheriff having the order of attachment, or into court. He shall be discharged from liability to the defendant, for any money so paid, not exceeding the plaintiff's claim. He shall not be subjected to costs beyond those caused by his resistance of the claim against him; and if he disclose the property in his hands or the true amount owing by him, and deliver or pay the same according to the order of the court, he shall be allowed his costs.
If garnishee do not appear.Sect. 213. If the garnishee do not appear in court and answer, as required by section two hundred and eleven, the court may proceed against him by attachment as for a contempt.
​If garnishee appear and answer.Sect. 214. If the garnishee appear and answer, and it is discovered on his examination, that at or after the service of the order of attachment and notice upon him, he was possessed of any property of the defendant, or was indebted to him, the court may order the delivery of such property and the payment of the amount owing by the garnishee, into the court; or the court may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff by one or more sufficient sureties, to the effect, that the amount shall be paid, or the property forthcoming, as the court may direct.
If he fail to appear, or if his disclosure is unsatisfactory.Sect. 215. If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure is not satisfactory to the plaintiff, or if he fail to comply with the order of the court, to deliver the property and pay the money owing into court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action, by filing a petition in his own name, as in other cases, and causing a summons to be issued upon it; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff, for the amount of the property and credits, of every kind, of the defendant in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee. If the plaintiff proceed against the garnishee by action, for the cause that his disclosure was unsatisfactory, unless it appear in the action that such disclosure was incomplete, the plaintiff shall pay the costs of such action. The judgment in this action may be enforced as judgments in other cases. When the claims of the plaintiffs in attachment are satisfied, the defendant in attachment may, on motion, be substituted as the plaintiff in the judgment.
Final judgement against garnishee postponed, when. If garnishee deliver property, &c.Sect. 216. Final judgment shall not be rendered against the garnishee, until the action against the defendant in attachment has been determined; and if in such action judgment be rendered for the defendant in attachment, the garnishee shall be discharged and recover costs. If the plaintiff shall recover against the defendant in attachment, and the garnishee shall deliver up all the property, moneys, and credits of the defendant in his possession, and pay all the moneys ​from him due, as the court may order, the garnishee shall be discharged, and the costs of the proceedings against him shall be paid out of the property and moneys so surrendered, or as the court may think right and proper.
If judgement rendered for defendant.Sect. 217. If judgment be rendered in the action for the defendant, the attachment shall be discharged, and the property attached, or its proceeds shall be returned to him.
If judgement rendered for plaintiff, how satisfied.Sect. 218. If judgment be rendered for the plaintiff, it shall be satisfied as follows: So much of the property remaining in the hands of the officer, after applying the moneys arising from the sale of perishable property, and so much of the personal property and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and the execution may issue thereon for the residue, in all respects as in other cases. Any surplus of the attached property, or its proceeds, shall be returned to the defendant.
Proceedings on undertaking.Sect. 219. The court may compel the delivery to the sheriff, for sale, of any of the attached property for which an undertaking may have been given, and may proceed summarily on such undertaking, to enforce the delivery of the property, or the payment of such sum as may be due upon the undertaking, by rules and attachments, as in cases of contempt.
Sheriff may repossess himself of attached property.Sect. 220. The court may order the sheriff to repossess himself, for the purpose of selling it, any of the attached property which may have passed out of his hands, without having been sold or converted into money; and the sheriff shall, under such order, have the same power to take the property as he would have under an order of attachment.
If attached personal property by claimed by another person.Sect. 221. If personal property which has been attached be claimed by any person other than the defendant, it shall be the duty of the officer to have the validity of such claim tried, and such proceedings must be had thereon, with the like effect as in case the property had been seized upon execution, and claimed by a third person.
​Where several attachments are executed on same property.Sect. 222. Where several attachments are executed on the same property, or the same persons are made garnishees, the court, on the motion of any of the plaintiffs, may order a reference to ascertain and report the amounts and priorities of the several attachments.
Subdivision 6.—General Provisions.
Court acquires jurisdiction, when. If defendant dies, or charter expires.Sect. 223. From the time of the issuing of the order of attachment, the court shall be deemed to have acquired jurisdiction and to have control of all subsequent proceedings under this chapter; and if, after the issuing of the order, the defendant being a person, should die, or a corporation, and its charter should expire by limitation, forfeiture, or otherwise, the proceeding shall be carried on; but in all such cases, other than where the defendant was a foreign corporation, his legal representatives shall be made parties to the action.
Defendant may ask for additional security, when.Sect. 224. The defendant may, at any time before judgment, after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court is satisfied that the surety in the plaintiff's undertaking has removed from this territory, or is not sufficient for the amount thereof, it may vacate the order of attachment and direct restitution of any property taken under it, unless, in a reasonable time, to be fixed by the court, sufficient security is given by the plaintiff.
Defendant may move discharge of attachment.Sect. 225. The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or a part of the property attached.
If made on affidavits and papers.Sect. 226. If the motion be made upon affidavits on the part of the defendant, or papers and evidence in the case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the order of attachment was made.
ARTICLE II.—Attachment in Certain Actions.
Attachment in case of fraudulent intent.Sect. 227. 1. Where a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; or, 2. Is about to make such ​sale, conveyance, or disposition of his property, with such fraudulent intent; or, 3. Is about to remove his property, or a material part thereof, with the intent, or to the effect, of cheating or defrauding his creditors, or of hindering and delaying them in the collection of their debts, a creditor may bring an action on a claim before it is due, and have an attachment against the property of the debtor.
Certain oath necessary before attachment is granted.Sect. 228. The attachment authorized by the last section, may be granted by the court in which the action is brought, or by a judge thereof, but before such action shall be brought, or such attachment shall be granted, the plaintiff, his agent or attorney shall make an oath in writing, showing the nature and amount of the plaintiff's claim, that it is just, when the same shall become due, and the existence of some one of the grounds for attachment, enumerated in the preceding section.
If court refuse to grant order.Sect. 229. If the court or judge refuse to grant an order of attachment, the action shall be dismissed, but without prejudice to a future action; and in all such actions, application for an attachment must be made.
Order to specify amount for which it is granted.Sect. 230. The order of the court or judge granting the attachment, shall specify the amount for which it is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim and the probable costs of the action.
Undertaking by plaintiff before order is issued.Sect. 231. The order of attachment, as granted by the court or judge, shall not be issued by the clerk until there has been executed, in his office, such undertaking on the part of the plaintiff, as is directed by section one hundred and ninety.
No judgement before claim is due.Sect. 232. The plaintiff in such action shall not have judgment on his claim, before it becomes due, and the proceedings on attachment may be conducted without delay.
Attachment under this article, how regulated.Sect. 233. The proceedings in the first article of this chapter, subsequent to section one hundred and ninety, shall, so far as they are applicable, regulate the attachments authorized by this article.
CHAPTER IV.—Injunction.
The injunction. Writ of, abolished.Sect. 234. The injunction provided by this code is a command to refrain from a particular act. It may be the final ​judgment in an action, or may be allowed as a provisional remedy; and when so allowed, it shall be by order. The writ of injunction is abolished.
A temporary injunction, when granted.Sect. 235. When it appears by the petition that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce great or irreparable injury to the plaintiff, or when, during litigation, it appears that the defendant is doing or threatens, or is about to do, or is procuring, or suffering to be done, some act in violation of plaintiff's rights, respecting the subject of action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. It may also be granted in any case where it is specially authorized by statute.
By whom and when.Sect. 236. The injunction may be granted at the time of commencing the action, or at any time afterwards, before judgment, by the supreme court or any judge thereof, the district court or any judge thereof, upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto.
Parties may be heard.Sect. 237. If the court or judge deem it proper that the defendant, or any party to the suit, should be heard before granting the injunction, it may direct a reasonable notice to be given to such party to attend for such purpose at a specified time and place, and may, in the mean time, restrain such party.
Not granted against party who answers.Sect. 238. An injunction shall not be granted against a party who has answered, unless upon notice; but such party may be restrained until the decision of the application for an injunction.
Not operative, unless undertaking is given.Sect. 239. No injunction, unless provided by special statute, shall operate until the party obtaining the same shall give an undertaking, executed by one or more sufficient sureties, to be approved by the clerk of the court granting such injunction, in an amount to be fixed by the court or judge allowing the same, to secure to the party enjoined the damages he may sustain, if it be finally decided that the injunction ought not to have been granted.
If "injunction allowed."Sect. 240. The order of injunction shall be addressed to ​the party enjoined, shall state the injunction, and shall be issued by the clerk. Where the injunction is allowed at the commencement of the action, the clerk shall indorse upon the summons, "injunction allowed," and it shall not be necessary to issue the order of injunction; nor shall it be necessary to issue the same, where notice of the application therefor has been given to the party enjoined. The service of the summons so indorsed, or the notice of the application for an injunction, shall be notice of its allowance.
If allowed during litigation and without notice.Sect. 241. Where the injunction is allowed during the litigation and without notice of the application therefor, the order of injunction shall be issued, and the sheriff forthwith serve the same upon each party enjoined, in the manner prescribed for serving a summons, and make return thereof without delay.
When binding.Sect. 242. An injunction binds the party, from the time he has notice thereof, and the undertaking required by the applicant therefor, is executed.
Not granted after motion is overruled.Sect. 243. No injunction shall be granted by a judge, after a motion therefor has been overruled on the merits of the application, by his court.
Its enforcement.Sect. 244. An injunction granted by a judge may be enforced, as the act of the court. Disobedience of an injunction may be punished as a contempt, by the court or any judge, who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied by affidavit of the breach of the injunction, against the party guilty of the same; and he may be required, in the discretion of the court or judge, to pay a fine not exceeding two hundred dollars for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or in default thereof, he may be committed to close custody, until he shall fully comply with such requirement, or be otherwise legally discharged.
Party enjoined may move the court for additional security.Sect. 245. A party enjoined may, at any time before judgment, upon reasonable notice to the party who has obtained the injunction, move the court for additional security; and if it appear that the surety in the undertaking has removed from the territory, or is insufficient, the court may vacate the injunction, unless in a reasonable time sufficient security be given.
​Affidavits may be read in hearing.Sect. 246. On the hearing of an application for an injunction, each party may read affidavits. All affidavits shall be filed.
If granted without notice, defendant may move to vacate or modify.Sect. 247. If the injunction be granted without notice, the defendant, at any time before the trial, may apply, upon notice, to the court in which the action is brought, or any judge thereof, to vacate or modify the same. The application may be made upon the petition and affidavits upon which the injunction is granted, or upon affidavits on the part of the party enjoined, with or without answer. The order of the judge allowing, dissolving, or modifying an injunction, shall be returned to the office of the clerk of the court in which the action is brought, and recorded and obeyed, as if made by the court.
If application on affidavits.Sect. 248. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same to affidavits or other evidence, in addition to that on which the injunction was granted.
Injunction upon an answer, how.Sect. 249. A defendant may obtain an injunction upon an answer in the nature of a counter claim. He shall proceed in the manner prescribed in this chapter.
CHAPTER V.—Receivers and other Provisional Remedies.
Receiver may be appointed by whom and in what cases.Sect. 250. A receiver may be appointed by the supreme court, or district court or by any judge of either: 1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff or of any party whose right to or interest in the property or fund, or the process thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured. 2. In an action by a mortgagee for the foreclosure of his mortgage, and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgaged debt. 3. After judgment to carry the judgment into effect. 4. After the judgment, to dispose ​of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply the property in satisfaction of the judgment. 5. In the cases provided in this code, and by special statutes, when a corporation has been dissolved or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. 6. In all other cases where receivers have heretofore been appointed by the usages of courts of equity.
No interested person appointed.Sect. 251. No party or attorney or person interested in an action shall be appointed receiver therein.
Receiver to be sworn and execute undertaking.Sect. 252. Before entering upon his duties, the receiver must be sworn to perform them faithfully, and, with one or more sureties, approved by the court or judge, execute an undertaking to such person and in such sum as the court or judge shall direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the court therein.
His powers.Sect. 253. The receiver has, under the control of the court, power to bring and defend actions in his own name, as receiver, to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers and generally to do such acts respecting the property as the court may authorize.
Funds in his hands, when invested.Sect. 254. Funds in the hands of a receiver may be invested upon interest, by order of the court; but no such order shall be made except upon the consent of all parties to the action.
When ownership admitted.Sect. 255. When it is admitted by the pleading or examination of a party, that he has in his possession or under his control, any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further discretion of the court.
When order of court is disobeyed.Sect. 256. Whenever, in the exercise of its authority, a court shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the court, besides punishing disobedience as for a contempt, may make an order, requiring the sheriff to take the money or thing and ​deposit or deliver it in conformity with the direction of the court.