*THE HONORABLE DAVID S. DOTY, United States District

Judge for the District of Minnesota, sitting by

designation.

 1Landmark Bank became Magna Bank of Missouri following a

merger between Landmark Bancshares Corporation and Magna

Acquisition Corporation.

 2The Honorable George F. Gunn, Jr., United States District

Judge for the Eastern District of Missouri.

___________

No. 95-3515

___________

Enterprise Bank, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Magna Bank of Missouri, *

*

Appellee. *

__________

 Submitted: June 11, 1996

 Filed: August 16, 1996 __________

Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and

DOTY,* District Judge.

___________

MAGILL, Circuit Judge.

This case involves a priority battle between two creditors,

Enterprise Bank (Enterprise) and Landmark Bank (Magna),1 over the

assets of Gustave and Laura Saettele. The district court2

concluded that Magna's September 1991 attachment of these assets

was valid, thereby giving Magna a lien superior to Enterprise's
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lien created in December 1991. We affirm.

I.

In order to secure loans from Enterprise and Magna, Gustave

and Laura Saettele executed personal guaranties of these loans.

This case involves efforts by Enterprise and Magna to enforce these

guaranties, with each bank seeking to satisfy their respective

judgments against the assets of the Saetteles, which are inadequate

to satisfy both judgments. The assets in dispute are Landmark

Bancshares Corporation Stock (Landmark stock) in the Saetteles'

account at Oppenheimer & Co. (Oppenheimer) and real property owned

by the Saetteles. Resolution of this priority battle turns on the

validity of Magna's prejudgment attachment of these assets.

In March 1991, Enterprise filed suit in federal district court

against the Saetteles to enforce the Saetteles' guaranty of the

Enterprise loan (the Enterprise lawsuit). In April 1991, Magna

also filed suit in federal district court to enforce the Saetteles'

guaranty of the Magna loan (the Magna lawsuit). 

While each suit was pending, Magna learned that the Saetteles

intended to sell some or all of their remaining Landmark stock. On

September 20, 1991, Magna moved the district court for a writ of

attachment of the Saetteles' stock and other assets. In support of

its petition, Magna submitted the affidavit of Richard Lueck, Vice

President of Magna. In the affidavit, Lueck noted that attachment

would be proper under Mo. Rev. Stat. § 521.010(1), which permits

prejudgment attachment where the defendant is not a resident of

Missouri, and Mo. Rev. Stat. § 521.010(5), which permits

prejudgment attachment where the defendant is about to remove his

property from the state, with the intent to hinder his creditors.

The facts supporting each ground for attachment were included in

the affidavit. Based on the petition and affidavit, the petition

for the writ of attachment was granted on September 20, 1991.
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In December 1991, the district court handling the Enterprise

lawsuit entered judgment in favor of Enterprise. During January

1992, to execute the judgment, Enterprise perfected liens upon the

same assets owned by the Saetteles that Magna previously attached

in September 1991. Shortly thereafter, Enterprise learned of

Magna's prior attachment of those assets. Enterprise then sought

to intervene in the continuing Magna lawsuit in order to challenge

the validity of Magna's prejudgment attachment.

On February 18, 1992, the district court in the Magna lawsuit

granted judgment in favor of Magna and against the Saetteles, and

the court also denied Enterprise's motion to intervene. The court

concluded that Enterprise sought intervention "as a judgment

creditor, solely in order to protect whatever claim it may have

against" the property previously attached by Magna. Mem. at 13-14

(Feb. 12, 1992), reprinted in Appellant's App. at 18-19. Because

Enterprise "has no interest in the merits of [the Magna lawsuit]

other than protecting and asserting a judgment lien against the

same property attached by" Magna, the priority dispute was "better

left for the state court to resolve." Id. at 14, reprinted in

Appellant's App. at 19. Enterprise did not appeal this denial of

intervention.

On April 7, 1992, Enterprise filed a motion in the district

court to consolidate the Enterprise and Magna lawsuits for the

purpose of challenging Magna's prejudgment attachment. This motion

was granted, and on October 5, 1992, the district court entered an

order upholding the attachment. See Enterprise Bank v. Saettele,

804 F. Supp. 1111 (E.D. Mo. 1992). Enterprise appealed, and the

Eighth Circuit reversed on the ground that the order consolidating

the two cases was improper. See Enterprise Bank v. Saettele, 21

F.3d 233, 236-37 (8th Cir. 1994). The panel did not reach the

merits of the appeal.

On June 29, 1994, Enterprise initiated the current action by
 3

In addition to the issues discussed below, Enterprise also

claims that the district court erred when it took judicial notice

of pleadings in earlier related proceedings in this litigation

and that it erred by denying Enterprise's motion for an extension

of discovery. After reviewing these claims, we conclude that

they are without merit.

 4Magna also asserts that Enterprise lacks standing to bring

this claim. Missouri Rule of Civil Procedure 85.18 provides that

when the same property is attached in several actions by

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filing a petition for declaratory relief in Missouri state court.

In its petition, Enterprise sought a declaration that prejudgment

attachment based solely on the out-of-state residence of the

property owner is unconstitutional, or, alternatively, that the

attachment of the Saetteles' stock was procedurally invalid. This

case was removed to federal court.

Magna moved for summary judgment, on the grounds that: (1)

Enterprise did not have standing to challenge the constitutionality

of the attachment as it was applied against the Saetteles; (2)

Enterprise did not appeal the denial of its motion to intervene in

the Magna lawsuit, and thus it was precluded from bringing the

present action; (3) the attachment was valid under Mo. Rev. Stat.

§ 521.010(5), which permits prejudgment attachment where the debtor

is moving property out of state in an effort to hinder creditors,

a ground for attachment found constitutional by Connecticut v.

Doehr, 501 U.S. 1 (1991); (4) the Lueck affidavit provided

sufficient facts to support attachment under § 521.010(5); and (5)

Magna's attachment of stock was procedurally valid. This motion

was granted on all grounds by the district court on August 16,

1995. See Enterprise Bank v. Magna Bank of Mo., 894 F. Supp. 1337

(E.D. Mo. 1995). This appeal followed.3

II.

As a threshold matter, we must determine whether Enterprise's

declaratory judgment action is barred by claim preclusion,4 given
different claimants, the court shall determine the priority and

validity of the attachments. We assume without deciding that

this is sufficient to grant standing to Enterprise to bring this

action.

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Enterprise's failure to appeal from the February 1992 denial of its

intervention motion. Magna contends that claim preclusion is

applicable, relying on Cheyenne River Sioux Tribe of Indians v.

United States, 338 F.2d 906 (8th Cir. 1964), cert. denied, 382 U.S.

815 (1965). The district court agreed. See Enterprise Bank, 894

F. Supp. at 1343.

In Cheyenne, the Cheyenne River Sioux Tribe (the Tribe) sought

to intervene as of right in a condemnation proceeding between the

United States and a tribe member, contending that, as the real

party-in-interest, it was an indispensable party to the proceeding.

The district court denied this motion, holding that the Tribe's

interests were adequately protected by the United States, and the

Tribe did not appeal. Due to its failure to appeal this ruling,

the Tribe was bound by the district court's determination that it

was not an indispensable party. The Tribe then brought a separate

action to have the judgment in the condemnation proceeding declared

null and void, contending that the judgment was rendered in the

absence of an indispensable party to the earlier proceeding. The

court held that the Tribe was precluded from raising this argument,

noting that "the issue of indispensability was decided against [the

Tribe] and res judicata bars further litigation of that issue

between the same parties." Cheyenne, 338 F.2d at 911.

Contrary to Magna's contention, Cheyenne does not hold that

the failure to appeal the denial of a motion to intervene as of

right will always preclude that party from bringing a new suit that

raises the same underlying claims as did the motion to intervene.

Rather, Cheyenne holds only that failure to appeal the denial of a

motion to intervene as of right will bar the party from later

relitigating whether it was an indispensable party, see id. at 911,
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because the legal issue decided against it in denying intervention

--the issue of indispensability--was the precise issue it sought to

litigate again in the independent action. Nothing in Cheyenne

suggests that its holding was to have any broader implications.

The facts of the present case do not fit within the limited

holding of Cheyenne. Enterprise does not seek to relitigate

whether it was an indispensable party to the Magna lawsuit; it does

not seek to have the Magna judgment declared null and void.

Rather, Enterprise merely seeks to litigate those claims that the

Magna court refused to consider. Claim preclusion is therefore not

applicable.

III.

Summary judgment is proper if there is no genuine issue of

material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). The court views the

evidence and the inferences which may be reasonably drawn from the

evidence in the light most favorable to the nonmoving party. See

Adkison v. G.D. Searle & Co., 971 F.2d 132, 134 (8th Cir. 1992).

The moving party has the burden of showing the absence of a genuine

issue of material fact and that it is entitled to judgment as a

matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A.

Enterprise contends that the district court erred in granting

the summary judgment motion because a question of material fact

exists as to whether the affidavit of Richard Lueck provided the

district court with a sufficient basis to grant the prejudgment

attachment to Magna. In support of this contention, Enterprise

argues that (1) the affidavit does not set forth sufficient facts

to warrant attachment, and (2) Lueck did not have a sufficient
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foundation to support the allegations contained in his affidavit.

Under Rule 85.03 of the Missouri Rules of Civil Procedure, a

party requesting a writ of attachment must file an affidavit

stating (1) the nature and amount of the claim, and (2) facts

showing the existence of one or more grounds for attachment. The

affiant must simply have good reason to believe in the existence of

one or more grounds for attachment. See Mo. Rev. Stat. § 521.060.

The affiant need not be ultimately correct in his belief. See

Elliott v. McCormick, 19 S.W.2d 654, 659-60 (Mo. 1929).

The affidavit at issue was sufficient to support attachment.

It set forth the nature and the amount of the claim. As to facts

showing the existence of a ground for attachment, the affidavit

stated:

7. Defendants have refused and continue to refuse

to provide personal financial information to Landmark as

required by Landmark, the most recent occasion having

occurred in the last few months.

8. Your affiant believes Defendants have sold and

are in the process of selling assets located within this

state. Your affiant believes that the net proceeds from

any such sale of Defendants' assets will not be available

to satisfy Landmark's claim, but instead the proceeds

will be moved out of this state to Landmark's prejudice.

Aff. for Attach. at 2, reprinted in Appellee's App. at 24. These

facts support attachment under Mo. Rev. Stat. § 521.010(5), which

permits attachment where the defendant is about to move the

property out of state with the intent to hinder his creditors.

Further, Lueck had a sufficient foundation to support the

allegations in the affidavit. He spoke directly with attorneys for

the holding company in which the Saetteles held their stock, who

apprised Lueck on several occasions that the Saetteles were in the

process of selling their stock. See Lueck Dep. at 19-23 (July 13,
 5

A certificated security is represented by an instrument in

bearer or registered form. Mo. Rev. Stat. § 400.8-102(1)(c).

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1992), reprinted in Appellant's App. at 87-91. Lueck also had

access to information concerning the Saetteles' bank accounts at

the former Landmark Bank, from which he learned that the Saetteles

had closed all of their accounts at that bank. Id. at 28,

reprinted in Appellant's App. at 96. Given the availability of

this information, we conclude that Lueck possessed good reason to

believe the allegations set forth in the affidavit.

B.

Enterprise also contends that the attachment of the Landmark

stock was procedurally deficient. Under Missouri law at the time,

when stock is issued in certificate form,5

 then attachment of that

stock requires actual seizure of the certificate. See Mo. Rev.

Stat. § 400.8-317(1); Mo. R. Civ. P. 76.06. In this case, Magna

did not seize the stock certificates, but instead attempted to levy

on the stock by garnishing the Saetteles' account at Oppenheimer.

Magna counters that the stock was not certificated and was

therefore not able to be attached. In support of this, Magna

submitted a March 27, 1992 affidavit from H. Eugene Bradford, a

vice president at Boatmen's Trust Company, which is the transfer

agent for the Landmark stock. Bradford explained that the Landmark

stock owned by the Saetteles was certificated at one time, but the

certificates were cancelled on June 27 and September 16, 1991, by

Boatmen's Trust. See Bradford Aff. at ¶¶ 4-5 (Mar. 27, 1992),

reprinted in Appellee's App. at 310. The shares previously

represented by these certificates were reissued in uncertificated,

book-entry form in the name of Cede & Co. Id. Between September

24 and December 20, 1991, Boatmen's Trust did not issue

certificates representing the stock, and thus no physical stock

certificates representing the stock owned by the Saetteles existed
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during this period. Id. at ¶ 7, reprinted in Appellee's App. at

311.

Based on the foregoing, we agree with the district court that

"no certificates were susceptible to ready attachment and thus,

[Magna] could resort to attachment by garnishment." Enterprise

Bank, 894 F. Supp. at 1345. Therefore, the garnishment of the

Saetteles' account at Oppenheimer was a valid method by which to

attach the stock.

IV.

Because the Lueck affidavit was sufficient to support

attachment, and because the attachment of the stock was not

procedurally defective, we affirm the decision of the district

court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.