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-to him a copy of said petition.

Witness, [&*c, t as in Form I a, Form I c, or Form I d, supra],

(a) Section 40 of the Code requires that the defendant be warned against a proceeding
for contempt, though J 419 declares that " no personal judgment shall be rendered against
a defendant summoned . . . out of this State . . . and who does not appear in
the action."

II. Constructive summonses.

a. Affidavit for warning order (}J 57, 58).

[See, ante, p. 593, for Forms of an affidavit of the plaintiff, or of his agent or attorney,
in an action against a non-resident defendant ; and pp. 594, 595, for similar affidavits in an
action against a resident defendant. ]t

b. Warning order from circuit courts, generally, or from quarterly courts or justices' courts,

(» 57, 5«, 59).

State of Kentucky,

Court.

A. B., Plaintiff, \

against \ Warning order.

■C. D., ; Defendant, j

The defendant, C. D., is hereby warned J to defend the above styled action on the first

day of the next term of the court aforesaid [naming a term which will not commence

-within sixty days after the making of the order] ; and , a regular, practicing

attorney of said court, is appointed as attorney for him.

Witness [&*c, as in Form I a, Form I c, or Form I d, supra,

c. Warning order from circuit courts in continuous session (Code, JJ 57, 58, 59 ; and J 21 of

act of December 30, 1892, S. A., 421).

State of Kentucky,

Circuit Court.

A. B., Plaintiff, \

against \ Warning order.

CD., Defendant. )

The defendant, C. D., is hereby warned to appear and defend the above styled action

within sixty days after the date hereof; and , a regular, practicing attorney

•of said court, is appointed as attorney for him.

Witness [&c, as in Form I a, supra],

* See the asterisk-note on page 693.

t See j 550, subs, a, as to affidavits in actions by two or more plaintiffs.

\ 1. The warning order should be made ** upon the petition." \ 57, subs. 7.

2. As to the time when proof may be taken and when the case will stand for trial, see £6o and notes;
and 1 364 as amended by an act of July 6, 1893 (S. A., 1893), which substituted " sixty" for M ninety" in the
.fourth line.



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696 FORMS.

155. Forms in actions for the arrest of the defendant.

a. Affidavit for arrest (J 153).

(Caption as in Form I, except insertion of " Affidavit " instead of "Petition. ")
The plaintiff, A. B. f states [or— E. F. states that he is the attorney (or— agent) of tie
plaintiff, A. B., who is absent from Lee county, and] that the claim in this action is for
merchandise sold and delivered by the plaintiff to the defendant [or according to tke/oa\
whether the action be on a contract or for a iori\ ; that said claim is just, and the affiant be-
lieves that the plaintiff ought to recover dollars [with interest thereon from tke

.... day of ] ; and that affiant believes that the defendant is about to depart from

this State, and, with intent to defraud his creditors, has concealed, or moved from tkii
State, his property, or so much thereof that the process of the court, after judgment, cu
not be executed [or — that the defendant has money, or securities for money, or evidences
of debt, in the possession of himself, or of others for his use, and is about to depart from
this State without leaving property therein sufficient to satisfy the plaintiff's claim].
(Signature and certificate as in Form I.)

b. Plaintiff's bond (J 154).

(Caption as in Form I, except insertion of " Bond of Plaintiff" instead of ** Petition.")
We agree that the plaintiff, A. B., shall pay to the defendant, C. D., the damages, not
exceeding [stating double the amount of the plaintiff's claim stated in the affidavit] dol-
lars, which he may sustain by reason of his arrest, if the order therefor is wrongfully ob-
tained. Witness our hands this .... day of (Signatures of obligors.)

Attest : , C. L. C. C.

c. Affidavit of surety requirable by clerk before accepting bond. See Form c, ante, p. 692.

d. Order of arrest (}? 155, 156).

(Caption as in Form I, except insertion of «♦ Order of Arrest" instead of •' Petition.")
The Commonwealth of Kentucky to the sheriff of Lee county :

The amount of the plaintiff's claim specified in his affidavit in the above styled action

being dollars ; you are commanded to arrest the defendant and hold him to bail in

the sum aforesaid, and in the sum of [not to exceed twenty five] dollars, the probable

costs of said action ; and to make return of this order on the first day of the next

term [naming the next term which will not begin within ten days from the date of the order] [*r—

on the day of the present term] of this court, with the bail bond, if any be taken

by you.

Witness , clerk of said court, this day of

, Clerk.

e. Bail-bond (J 163).

[Caption as in Form I, except insertion of " Bail-bond " instead of " Petition.")
I agree that, if judgment shall be rendered in this action against the defendant, C D,
he will render himself amenable to the process of the court thereupon.

Witness my hand this .... day of G. H.

Attest : , Sheriff of Lee County.

[Or— Jailer of Lee County].

f. Affidavit of bail requirable by sheriff (J 164).

G. H. states that he is a resident of the State of Kentucky ; that he is worth the stn

of [slating double the sum specified in the order of arrest] dollars beyond the amotit

of his debts, and has property in said State, subject to execution, at least equal innl«
to that sum. G. H.

Signed and sworn to before me, sheriff of Lee county, this .... day of ,



,Sheri£



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FORMS GENERALLY IN CIVIL CASES. 697

156. Forms in actions for immediate delivery of personal property.

Affidavit for immediate possession. See Form, ante, p. 555.

Order of delivery (J 183).

(Captions in Form I, except insertion of •« Order of delivery " instead of " Petition.")
he Commonwealth of Kentucky to the sheriff of Lee county :

In the action of A. B., plaintiff, against C. D., defendant, pending in the Lee circuit
art, you are directed to take from the possession of defendant, C. D., a horse [here de-
ibe the horse, and state his value, as in plaintiff's affidavit] and deliver him to the plaintiff,

, B., and you will make return of this order on the 1st day of the next term

anting the next term which will not begin within ten days from the date of the order] [or — on
e . . . . day of the present term] of said court.

Witness , clerk of said court, this .... day of

, Clerk.

Appraisement of property, on suggestion of plaintiff or defendant, " before taking any bond"

(i 189).
(Caption as in Form I, except insertion of " Appraisement " instead of «« Petition.")

The undersigned, disinterested housekeepers, having been selected and sworn by

. . . ., sheriff of Lee county, appraise the property mentioned in the order of delivery in
e above styled action as follows, viz.: [state the articles and the value of each if more than

'Ml-

Witness our hands this .... day of

(Signatures of Appraisers.)
Attest: , S. L. V.

(a) It seems that numerous articles of the same species, as, fifty Cotswold sheep, may
valued as one article. See 4th paragraph of notes, ante, p. 85.

Bond, to be generally taken by sheriff before complying with order ({184).

(Caption as in Form I, except insertion of " Plaintiffs' bond " instead of " Petition.")

We undertake to the defendant, C. D., that the plaintiff, A. B., shall duly prosecute
s action, and shall perform the judgment of the court therein, by returning the horse
lered to be delivered to the plaintiff, if a return be adjudged, and by paying such sums

money as may be adjudged in this action against the plaintiff, not exceeding dol-

5 [or — not exceeding double the value of said property] (a) and the costs of this action.

Witness our hands this .... day of , L. M.

Attest : , Sheriff of Lee county. N. O.

(a) State double the value of the property as appraised, if it has been appraised ; if not,
eems to me that the bond should not be based on the plaintiff's allegation of value, but
>uld leave that fact for future ascertainment.

Bond to be taken, in action against an officer \ before complying with order of delivery (£ 185).
(Caption as suggested in last foregoing Form.)

We undertake that the plaintiff, A. B., shall duly prosecute this action, and shall per-

m the judgment of the court therein, by returning the horse ordered to be delivered to

plaintiff, if a return be adjudged, and by paying, as may be directed by the court, to

defendant, C. D., or to [naming the plaintiff" in the attachment, execution,

tistress-warrant, in whose behalf the defendant had seized the property] such sums of money

nay be adjudged in this action against the plaintiff, not exceeding dollars [or — not

eeding double the value of said property] (a) and the costs of this action.

Witness our hands this .... day of L. M.

Attest : , Sheriff of Lee county. N. O.

(a) See note to last foregoing Form.



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698 FORMS.

f. Bond to secure restoration 0/ property not taken under an attachment, execution, or distress-

warrant (§ 188).

(Caption as in Form I, with " Restoration-bond" instead of " Petition.")

We bind ourselves to the plaintiff, A. B., in the sum of dollars [or — in a sum

equal to double the value of the property taken under the order of delivery in this case] {a),
that the defendant, C. D., shall perform the judgment of the court in this action.

Witness our hands this .... day of L. M.

Attest : , Sheriff of Lee county. N. O.

(a) See note to Form 156 d.

g. Plaintiff 1 s indemnifying bond to sheriff against claim of person not a party to the action

a 191).

(Caption as in Form I, with "Plaintiff's indemnifying bond to sheriff," instead of
"Petition.")

We undertake to indemnify , sheriff of Lee county, against any loss or

damage he may sustain by reason of the claim of to the property mentioned

in the order of delivery in this case, not exceeding dollars [or — not exceeding double

the value of said property] {a).

Witness our hands this .... day of N. O.

Attest : , Sheriff of Lee county. m P. S.

(a) See note to Form 156 d.

h. Affidavits requirable by sheriff before accepting any of the above named bonds. See Form
c, ante, p. 692.

i. Plaintiff's affidavit for general attachment, if order of delivery can not be executed. See
Form f, post, p. 700.

157. Forms in actions for general attachments. *

a. Affidavit for attachment in an action against a non-resident or a foreign corporation.

[See Forms, ante, pp. 592, 593; inserting, when proper, "Foreign corporation," in-
stead of " non-resident of Kentucky." But the affidavit must show that the demand arose
on "a contract, express or implied, or a judgment or award" (J 194-8).]

b. Affidavit for attachment in an action against a resident defendant coftstructively summoned"

m 196).

(Caption stating style of action, with " Affidavit for Attachment "instead of " Petition.")
The plaintiff, A. B., says [or— E. F. says that he is the agent (or— attorney) of the

plaintiff, A. B., who is absent. from county (or— who is physically unable to attend

before an officer) and] —

1. That the claim in this action is for the value of merchandise sold and delivered by
the plaintiff to the defendant, C. D., [or — for money due on the defendant's note to the
plaintiff: or — &*c, according to the fact] ;

2. That said claim is just ;

3. That he ought, as he believes [or — the plaintiff ought, as the affiant believes], to
recover thereon dollars ; and

4. That the defendant has been absent from Kentucky during the four months last past
[Or — has departed from Kentucky with intent to .defraud his creditors.]

[Or — has left the county of his residence to avoid the service of a summons.]
[Or — so conceals himself that a summons can not be served upon him.]

<• As to suing in equity, without an attachment, to subject property belonging to a debtor, see Form 6a,
ante, p. 506; and as to thus suing to subject property which a debtor has conveyed to, or purchased ia tfce
name of another, see Forms 63 a, b, c, and d, ante, pp. 597 to 599 ; and Form 64, ante, p. 600.



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FORMS GENERALLY IN CIVIL CASES. 699



[Or — has departed from Kentucky to avoid arrest upon a criminal charge, and thereby
prevented the service of summons upon him (a)"] A. B. [or — E. F.]

(Certificate as in Form I.)

(a) See 86 A>., 457.

c. Affidavit before order to sell real property 0/ defendant constructively summoned (J 230) .

(Caption stating style of action, with " Affidavit for Sale of Real Property " instead of
" Petition. ")

The plaintiff, A. B., says [or — E. F. says that he is the agent {or — attorney) of the

plaintiff, A. B., who is absent from county (or — who is physically unable to attend

before an officer) and] that the defendant, C. D., has no personal property, or not enough
to satisfy the plaintiff's claim, in Kentucky, known to the affiant.

A. B. [or— E. F.]

(Verification as in Form I.)

d. Refunding bond to defendant constructively summoned (g 410) (a).

(Caption stating style of action, with " Refunding Bond " instead of " Petition.")

We bind ourselves to the defendant, C. D., that, if he shall procure a vacation or modi-
fication of the judgment that maybe rendered in the above styled action in favor of the
plaintiff, A. B., he shall restore to said defendant any property or money obtained under
said judgment, restoration of which shall be adjudged.

Witness our hands this .... day of L. N.

S. T.

{a) This bond must be approved by the court.

e. Affidavit for attachment in an action against a defendant actually summoned ({§ 196).
(Caption stating style of action with «* Affidavit for Attachment," instead of" Petition.")
The plaintiff, A. B., says [or — E. F. says that he is the agent (or— attorney) of the

plaintiff, A. B., who is absent from county {or — who is physically unable to attend

before an officer) ; and] that [state the nature, <SrV., of the plaintiffs claim, as in heads I, 2,
and 3 of Form b, supra {a)] ; and that the defendant is a non-resident of Kentucky {6).

[Or — has moved his property, subject to execution, from Kentucky, not leaving enough
property therein to satisfy the plaintiff's claim [or — to satisfy the claims of the defendant's
creditors] (c).

[Or — is about to move his property, subject to execution, from Kentucky, not leaving
enough property therein to satisfy the plaintiff's claim [or— to satisfy the claims of the
defendant's creditors] {c).

[Or — is about to move a material part of his property from Kentucky, not leaving
enough property therein to satisfy the plaintiff's claim [or — to satisfy the claims of the de-
fendant's creditors] (c).

[Or — has sold, conveyed, or otherwise disposed of his property (or — has suffered or
permitted his property to be sold) with the fraudulent intent to cheat, hinder, or delay his
creditors],

[Or — has no property in Kentucky subject to execution (or — has not enough property
in Kentucky subject to execution to satisfy the plaintiff's demand) ; and the collection
thereof will be endangered by delay in obtaining judgment or a return of no property
found (J)]. A. B. [or— E. F.]

(Certificate as in Form I.)

(a) There is this distinction between actions against non-residents and foreign cor-
porations constructively summoned and defendants actually summoned : in the latter, but
not in the former, the plaintiff may have an attachment for damages for a tort. Code,
I 194-8 ; Clarke v. Seaton, 18 B. M., 226.



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700 FORMS.

(b) Non-residence of a defendant, though actually summoned, is ground for an attach-
ment {Jackson v. Perry, 13 £. M., 231), if the action be on a contract, judgment, or award.
Code, \ 194-8.

{c) The three paragraphs followed by ie) are intended to state a ground of attachment
under \ 194-6, which authorizes an attachment when a debtor «« Is about to remove, or
has removed, his property, a material part thereof, out of this State, not leaving enough
therein to satisfy the plaintiff's claim, or the claims of said defendant's creditors."

The words **has removed his property . . . out of this State, not leaving enough,"
&c, seem to refer to property subject to execution, as it seems unreasonable to suppose that
the legislature intended to authorize an attachment "against the property" of a debtor
who had moved all his property from the State ; and I do not perceive how a person can
state under oath that a debtor has moved "his property " from the State and has some
property remaining in it, as the words "not leaving enough," &c, necessarily imply.
Those paragraphs comply with what seems to be the meaning of the statute ; and, in con-
formity to the general rule on the subject (see 4 Mon. t 158; 6 J. J. Af., 480), they avoid a
statement of the grounds relied on, in the alternative ; though such alternative statement
has been held to be sufficient if each of the grounds stated would authorize an attachment
(see Hardy, <5rV., v. Trabue, &V., 4 Bush, 644) : but, perhaps, a plaintiff seeking this extra-
ordinary remedy should distinctly notify the defendant of the facts intended to be relied on.

(d) But a plaintiff can not have an attachment on this ground except in an action for
44 money due on contract, judgment, or award." J 194, subs. II.

f. Affidavit for attachment in an action for immediate delivery of personal property.
(Caption stating style of action, with " Affidavit for Attachment " instead of " Petition.")
The plaintiff, A. B., says [or — E. F. says that he is the agent {or — attorney) of the

plaintiff, A. B., who is absent from county {or — who is physically unable to attend

before an officer) and] that the property [or— part of the property] mentioned in the order
of delivery in this action, to-wit : [describe the property], has been disposed of [or — con-
cealed] [or— removed] {a) by the defendant, so that the order for its delivery can not be
executed by the sheriff {b). A. B. [or— E. F.]

(Certificate as in Form I.)

{a) It would perhaps be sufficient to state, in the language of the statute, that the
property "has been disposed of, concealed, or removed, so that," &c. See note {c) to last
foregoing Form.

(b) Upon such affidavit, or upon the sheriff's return on the order of delivery stating
such facts, the plaintiff is entitled to a general attachment. J 196, subs. III.

g. Attachment-bond (§ 198) {a.)

(Caption stating style of action, with " Attachment-bond," instead of " Petition.")

We undertake that the plaintiff, A. B., shall pay to the defendant, C. D. f the damages,

not exceeding [stale double the amount of the plaintiff" 1 s claim] dollars, which he may

sustain by reason of the attachment in the above styled action, if the order therefor be
wrongfully obtained.

Witness our hands this .... day of

(Signatures of obligors).

Attest: , C. L. C. C.

{a) The clerk, before accepting the bond, can require an affidavit as in Form c, ante, p. 692.

h. Order of Attachment (J 199).

(Caption stating style of action, with " Order of Attachment " instead of " Petition.")

The Commonwealth of Kentucky to the sheriff of county [or— name any officer or person

authorized pursuant to \ 667 or \ 668].

The amount of the plaintiff's claim, specified in his affidavit in the above styled action,

being dollars, you are commanded to attach and safely keep the property of the

defendant, C. D., in your county, not exempt from execution, or so much thereof as will

satisfy the plaintiff's claim aforesaid, and [not to exceed thirty] dollars, the probable

costs of said action, and to summon the garnishees, if any, to answer in said action on the



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FORMS GENERALLY IN CIVIL CASES. 701

first day of the next term [naming the first term which will not begin within ten days

from the making of the order] [or— on the .... day of the present term] of this court; and
you will make return of this order on that day.*

Witness , clerk of said court, this .... day of

, Clerk.

i Notice to garnishees as to debts or demands {to be indorsed on the order of attachment) . ( J 203-3,
and amendatory act of i886).t

Each person to whom a copy of the within order shall be delivered is hereby notified
that he is summoned to answer as a garnishee herein on or before the [stating the time
named in the order of attachment for its 'return}.

Witness, this .... day of {a). , C. L. C. C.

{a\ In Bell v. Wood, 87 fCy., 56, it was held that, even before the adoption of the act
of 1886, it was not necessary for the notice to describe an attached debt.

j. Notice to garnishees as to property not "capable of manual delivery" nor constituting a debt
or demand [to be indorsed on, or annexed to, the order of attachment] (§ 203-3.)!

The object of this proceeding is to attach shares of stock of the Bank of Louis-

▼Hie [or — £rV., describing the property] which the defendant, C. D., owns, or in which he
has an interest. Witness, this .... day of , C. L. C. C.

k. Sheriff 1 s return of service on garnishees ({J 203-3, 2, 7«)

Executed, by delivering copies of the above [or within] order of attachment, and of the

above [or within] notice, to , on the .... day of ; to ,

on the .... day of ; and to , on the .... day of ; and by

summoning each of them to answer as garnishee. S. L. C.

1. Plaintiff's bond to a joint owner of attached property (J 208).

(Caption stating style of action, with "Plaintiff's Bond to Joint Owner" instead of
" Petition.")

We undertake that the plaintiff, A. B., shall pay to S. T., a joint owner with the de-
endant, C. D., of a bay horse directed to be seized under an order of attachment in the
bove styled action, the damages which said S. T. may sustain by the wrongful suing out
f said order, not exceeding [stating double the amount of the plaintiffs claim] dollars.

Witness our hands this .... day of

Attest : , S. L. C. (Signatures of obligors.)

1. Bond of indemnity to sheriff (1 21 1. )

(Caption stating style of action, with " Indemnifying Bond " instead of " Petition.")

We agree to indemnify sheriff of county, against any damage he

ay sustain by reason of the levy of the attachment in this action.

Witness our hands this .... day of

Attest : , S. L. C. (Signatures of obligors.)

[Or — , Judge of Lee Circuit Court.]

Bond for restorati n of attached property to person in whose possession it was found {§214.)
(Caption stating style of action, with " Restoration Bond" instead of " Petition.")

We , principal, and , his surety, bind ourselves to the

lintiff, A. B., in the sum of [stating double the value of the property as appraised]

* As to the return-day of attachments in circuit courts in continuous session, see suggestions in note

», post, p. 703.

f Several orders of attachment " may, at the option of the plaintiff, be issued at the same time or in
cession " <{aoi); and if the plaintiff seek to attach debts or demands and other property not capable
oanual delivery, the proper course seems to be the obtaining of different orders, with the suitable notice
orsed on, or annexed to, each.



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702 FORMS.

dollars, that the defendant, C. D., shall perform the judgment of the court in the abort
styled action, or that the property attached therein, or its value, shall be forthcoming and
subject to the order of the court.

Witness our hands this .... day of

(Signature x>f obligors.)

Attest: , S. L. C.

o. Appraisement befoie taking restoration-bond (J 21 5.)

(Caption stating style of action, with " Appraisement" instead of " Petition.")

The undersigned, disinterested housekeepers, having been selected and sworn by

, sheriff of Lee county, appraise the property attached in the above styled

action as follows, viz.: [state the articles and the value of each if more than one (<?)].

Witness our hands this .... day of

(Signatures of Appraisers.)

Attest: , S. L. C.

(a) But see 4th paragraph of notes, ante, p. 85, as to appraising numerous articles of the
same species.

p. Bond to discharge attachment (J§ 221, 222.)

(Caption stating style of action, with "Bond to Discharge Attachment," instead of
" Petition.")

We bind ourselves to the plaintiff, A. B., that the defendant, C. D., shall perform the
judgment of the court in the above styled action.

Witness our hands this .... day of (Signatures of obligors.)



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 98 of 142)