TITLE 8

PROVISIONAL REMEDIES IN CIVIL ACTIONS

CHAPTER 5

ATTACHMENTS

8-502.  Application — Court examination — Order to show cause — Notice — Hearing — Temporary restraining order. (a) A plaintiff desiring the issuance of a writ of attachment shall file with the court an application therefor supported by an affidavit made by or on behalf of plaintiff setting forth:

1.  That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal setoffs or counterclaims) and whether upon a judgment or upon a contract for the direct payment of money, and that the payment of the same has not been secured by any mortgage, deed of trust, security interest or lien upon real or personal property, or if originally secured, that such security has, without an act of the plaintiff, or the person to whom the security was given, become valueless.

2.  When the defendant is a nonresident of this state, that such defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal setoffs or counterclaims), and that defendant is a nonresident of the state.

3.  That the attachment is not sought and the action is not prosecuted to hinder, delay or defraud any creditor of the defendant.

(b)  The court shall, without delay, examine the complaint and affidavit, and if satisfied that they meet the requirements of subdivision (a), it shall issue an order directed to the defendant to show cause why a writ of attachment should not issue. Such order shall fix the date and time for the hearing thereon, which shall be no sooner than five (5) days from the issuance thereof, and shall direct the time within which service thereof shall be made upon the defendant. Such order shall inform the defendant he may file affidavit on his behalf with the court and may appear and present testimony on his behalf at the time of such hearing, or he may, at or prior to such hearing, file with the court a written undertaking to stay the issuance of the writ of attachment in accordance with the provisions of section 8-506C, Idaho Code, and that if he fails to appear plaintiff will apply to the court for a writ of attachment without further notice to defendant. If the attachment has issued prior to the hearing, the defendant may apply to the court to have the hearing set at an earlier date. Such order shall fix the manner in which service thereof, together with a copy of the complaint and affidavit, shall be made, which shall be by personal service, or in such manner as the judge may determine to be reasonably calculated to afford notice thereof to the defendant under the circumstances appearing from the complaint and affidavit. The plaintiff shall cause proof of service to be filed with the court prior to the hearing.

(c)  Upon examination of the complaint and affidavit and such other evidence or testimony as the judge may, thereupon, require, a writ of attachment may be issued prior to hearing, if probable cause appears that any of the following exist:

(1)  The jurisdiction of the court is predicated upon attachment of the defendant’s property within this state;

(2)  The property specifically sought to be attached consists of one (1) or more negotiable instruments. In such case the writ shall by its terms restrict the levy by the sheriff thereunder, to such negotiable instruments;

(3)  By reason of specific facts shown, the property specifically sought to be attached is a bank account subject to the threat of imminent withdrawal, or is perishable, and will perish before any noticed hearing can be had, or is in immediate danger of destruction, serious harm, concealment, or removal from this state, or of sale to an innocent purchaser, and the holder of such property threatens to destroy, harm, conceal, remove it from the state, or sell it to an innocent purchaser. In such case the writ shall by its terms limit the levy by the sheriff thereunder to such specific property.

Where a writ of attachment has been issued prior to hearing under the provisions of this section, the defendant or other person from whom possession of such property has been taken may apply to the court for an order shortening the time for hearing on the order to show cause, and the court may, upon such application, shorten the time for such hearing, and direct that the matter be heard on not less than forty-eight (48) hours’ notice to the plaintiff.

(d)  Under any of the circumstances described in subsection (a), or paragraph (1) of subsection (c) of this section, or in lieu of the immediate issuance of a writ of attachment under any of the circumstances described in paragraphs (2) and (3) of subsection (c) of this section, the judge may, in addition to the issuance of an order to show cause, issue such temporary restraining orders, directed to the defendant, prohibiting such acts with respect to the property, as may appear to be necessary for the preservation of rights of the parties and the status of the property.

(e)  Upon the hearing on the order to show cause, the court shall consider the showing made by the parties appearing, and shall make a preliminary determination of whether there is a reasonable probability that the plaintiff will prevail in its claim. If the court makes this determination favorably to the plaintiff, it shall, upon examination of the evidence or testimony submitted and such other evidence or testimony as the judge may thereupon(,) require, determine the proper amount to be specified in the undertaking required by section 8-503, Idaho Code, and if requested, the value of any property sought to be retained by or returned to defendant and the proper amount to be specified in any undertaking which may be or has been filed by defendant pursuant to section 8-506C, Idaho Code. If the court determines that the action is one in which a writ of attachment should issue, it shall direct the issuance of such writ. The court may direct the order in which the writ shall be levied upon different assets of the defendant, if, in the aggregate, they exceed in value an amount clearly adequate to secure any judgment which may be recovered by the plaintiff.

History:

[(8-502) C.C.P. 1881, sec. 319; R.S., & R.C., sec. 4303; am. 1913, ch. 51, sec. 2, p. 160; reen. C.L., sec. 4303; C.S., sec. 6780; I.C.A., sec. 6-502; am. 1974, ch. 307, sec. 3, p. 1793.]