sons who compose it, 18 O. S. 134. Plaintiff can not have an action under this section when the court did not have jurisdiction of the defendant in attachment, 24 O. S. 481; and plaintiff can not have an action against the garnishee on the ground of non-residence, though the garnishee may appear and answer, 26 O. S. 645; see, generally, 2 C. S. C. R. 56.

? 5552. When plaintiff to pay costs, and defendant may be substituted for plaintiff. 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, he shall pay costs of such action; and when the claim of the plaintiff in attachment is satisfied, the defendant may, on motion, be substituted as the plaintiff in the judgment. [51 v. 57, 218; S. & C. 1009.]

25553. When judgment may be rendered against garnishee, and when he must be discharged. Final judgment shall not be rendered against the garnishee until the action against the defendant in attachment is determined (1); if in such action judgment be rendered for the defendant in attachment, the garnishee shall be discharged, and recover costs; and if the plaintiff recover against the defendant in attachment, and the garnishee deliver up all the property and credits of the defendant in his possession, and pay all the money due from him, as the court may order, the garnishee shall be discharged, and the costs of proceedings against him shall be paid out of the property and money so surrendered, or as the court deems right and proper. [51 v. 57, ? 219; S. & C. 1009.] 1. 2 H. 1; see ? 5545n. Entering it before only a clerical error, 13 O. S. 219.

25554. Effect of judgment for defendant. If judgment in the action be rendered for the defendant, the attachment shall be discharged, and the property attached, or its proceeds, shall be returned to him. [51 v. 57, 220; S. & C. 1009.]

? 5555. Proceedings after judgment for plaintiff. 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 money 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 execution may issue thereon for the residue, in all respects as in other cases; and any surplus of the attached property, or its proceeds, shall be returned to the defendant. [51 v. 57, 221; S. & C. 1009.]

25556. Court may enforce delivery of property attached by proceedings for contempt. The court may compel the delivery to the sheriff, for sale, of any of the attached property for which an undertaking has been given, and may proceed summarily on such undertaking to enforce the delivery of the property, or the payment of the money due upon the undertaking, by rules and attachment as in cases of contempt. [51 v. 57, 222; S. & C. 1010.]

25557. Court may order officer to repossess himself of attached property. The court may order the officer to repossess himself, for the purpose of selling it, of any of the attached property which has passed out of his hands without having been sold or converted into money; and the officer shall, under such order, have the same power to take the property as he would have under an order of attachment. [51 v. 57, ? 223; S. & C. 1010.]

25558. When property attached is claimed by a third person. If personal property which has been attached be claimed by any person other than the defendant, the officer shall have the validity of such claim tried; and such proceedings must be had thereon, with the like effect, as if the property had been seized upon execution, and claimed by a third person. [51 v. 57, ? 224; S. & C. 1010.]

See 22 5444-5446nn.

25559. When question of priority may be referred. When several attachments are executed on the same property, or the same person is made a garnishee by several parties, 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. [51 v. 57, 225; S. & C. 1010.] 2 C. C. R. 110, 114.

SUBDIVISION VI. GENERAL PROVISIONS.

? 5560. Proceedings not to terminate by death of defendant. From the time of the issue of the order of attachment the court shall be deemed to have acquired jurisdiction (1), and to have control, of all subsequent proceedings under this chapter; and if, after the issue of the order, the defendant, being a person, die, or being a corporation, its charter expire by limitation, forfeiture, or otherwise, the proceedings shall be carried on; but in all such cases, other than where the defendant was a foreign corporation, the legal representatives of the defendant shall be made parties to the action. [51 v. 57, ? 226; S. & C. 1010.]

1. 41 O. S. 271, 272.

2 5561. When plaintiff may be required to give further security. 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 the state, or is not sufficient for the amount of the undertaking, 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 be given by the plaintiff. [51 v. 57, ? 227; S. & C. 1010.]

? 5562. Motion to discharge attachment. The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or any of the property attached; and the motion may be heard and decided by the court at any term or regular session thereof, or it may be made, heard, and decided by any judge thereof in vacation. [54 v. 29, 228; S. & C. 1011.]

Defendant in attachment can not move the court to dismiss the attachment on the ground that the property attached does not belong to him, 10 O. S. 439; and an attachment will not be discharged on the ground that it appears from the answer of the garnishee that he is not indebted, and has no property in his possession belonging to the defendant, 31 O. S. 537. On motion to discharge an attachment for insufficient affidavit, the court will not look into the petition and exhibits, 1 H. 45. On the hearing of a motion to discharge an attachment issued on an insufficient affidavit, it is not competent for the plaintiff, in the absence of leave to amend, or a motion for such leave, to sup

plement the affidavit or validate his proceedings by new affidavits showing the existence of fraud in fact, 23 O. S. 192. The proper mode for defendant to meet the charge made in an affidavit for attachment is by motion, 9 O. S. 388; see 19 Bull 257.

25563. Evidence on motion to discharge. When the motion is 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 the evidence on which the order of attachment was made. [51 v. 57, ? 229; S. & C. 1011.]

See 2 D. 394; 34 O. S. 11; 20 Bull 388; 46 O. S.

5563a. Party affected by order may file petition in error. A party to a suit affected by an order discharging or refusing to discharge an order of attachment, may file a petition in error to reverse, vacate, or modify the same, as in other cases; and the original action shall proceed to trial and judgment in every respect, as though no petition in error had been prosecuted. [77 v. 69.]

An order discharging an attachment is a final order, reviewable on error, 5 O. S. 42; 9 O. S. 388; 11 O. S. 579. A motion for a new trial is not necessary in order that the action of the court upon the motion discharging the attachment may be reviewed on error, 12 Bull 321. The reviewing court will not reverse the action of the lower court upon a motion to discharge an attachment where questions of fact are involved, unless the action of the lower court was clearly erroneous, Id.; see 3 C. C. R. 209.

5563b. Id. Time for filing petition in error. Bond. When an order discharging an order of attachment is made, and a party affected thereby excepts thereto, the court or judge shall fix the number of days, not to exceed thirty, in which such party may file his petition in error, and during which it shall be filed, and the attached property held by the sheriff or other officer; the party who files the petition in error shall give an undertaking to the adverse party, with surety to be approved by the clerk of the circuit court, in double the amount of the appraised value of the property attached, conditioned to pay such adverse party all damages sustained by him in consequence of the filing of the same, in the event of the discharge of the order of attachment by the court in which the petition in error is filed, because the same was wrongfully obtained; and when such petition in error is filed, and an undertaking given, the sheriff, or

other officer, shall continue to hold the property attached, subject to the further order of the court. [84 v. 13; 77 v. 70.]

The limitation of time for filing petitions in error under these sections is solely for the purpose of retaining the attached property; and in order that the lien on such property may be retained, the petition in error must be filed and bond given within the time prescribed by the trial court, 12 Bull 308.

25563c. Id. Administrator or executor may file petition in error. If a party who excepts to an order discharging or refusing to discharge an order of attachment die within the time limited for filing his petition in error, the administrator or executor of such deceased party may, at any time within thirty days after his appointment and qualification, file his petition in error, and thereby become a party to the action, and shall not be required to give the undertaking required by the preceding section; but no such petition in error shall be filed by an executor or administrator after one year from the time such order is made. [77 v. 70.]

CHAPTER III.

ATTACHMENT BEFORE DEBT DUE.

A

25564. Grounds of attachment before debt due. creditor may bring an action on his claim before it is due, and have an attachment against the property of the debtor:

1. When 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 or delaying them in the collection of their debts. [51 v. 57, 230; S. & C. 1011.]

See 2 5521. Attachment lies against indorser of note not due, 1 H. 442; but the operation of the section is not restricted to contracts for the payment of money, 12 O. S. 158. An obligation to deliver on and after a certain day, iron metal in payment at a rate agreed on for iron ore sold and delivered constitutes a claim