§ 2700. L. 1874. chap. 17. ef Garnishment. fect of notice; what Notice of garnishment shall have the effect of attaching all personal property, money, rights, credits, bonds, $3: Dec. 31, 1873. bills, notes, drafts, checks or other choses in action, due or to become due, from the garnishee to the defendant, or be subject to. longing to the defendant and in the garnishee's possession or charge, or under his control at the time of the service of the garnishment, or which may come into his possession or charge, or under his control, or for, or on account of which he may become indebted to the defendant, between that time and the time of filing his answer; but he shall not be liable to a judgment in money on account of such bonds, bills, notes, drafts, checks or other choses in action, unless the same shall have been converted into money since the garnishment, or he fail in such time as the court may prescribe to deliver them into court, or to the sheriff, or other person designated by the court. Any debt or legacy, due or to become due, by an executor or administrator, and any goods, effects or credits in the hands of an executor or administrator as such, may be attached in his hands by process of garnishment, and in like manner money, effects and credits, due or belonging, or to become due to an executor or administrator as such, may be attached in the hands of the debtor or person holding the same. Publication; when and how. § 2701. When the defendant cannot be cited, and his property or effects shall be attached, if he do not appear and answer to the action at the return term of the writ, within the first two days thereof; the court shall order a publication to be made, stating the nature and amount of the plaintiff's dem and, and notifying the defendant that his property has been attached, and that unless he appears at the next term, judgment will be rendered against him, and his property sold to satisfy the same: which notice shall be published four weeks successively in some newspaper printed in this territory, the last insertion to be not less than two weeks before the first day of the next term; but if there should be no newspaper printed in this territory, said notice shall be published by not less than six hand bills put up at six different public places in the county, at least six weeks before the first day 11: Sep. 22, 1846. of the next term. C. L. 1865, chap. 31, may make; when. § 2702. The law of this territory in regard to attachments Publication, officer is so amended, that where the defendant cannot be served personally with the process, and shall have no place of resi dence in this territory, and the property of the defendant shall have been attached in time to make the necessary publication as now required by law, the officer executing the said process, or the agent or attorney of the plaintiff in said case, is hereby authorized to make publication of notice to the defendant in such attachment in the manner now prescribed by law, which shall have the same force and effect to compel the appearance of the defendant in any such suit in attachment, as if such publication of notice had been in conformity to an order of court as heretofore required; and upon satisfactory proof being made to the court of the publication of said notice, the plaintiff may proceed in said case as if the process had been served personally upon the said defendant. C. L. 1865. chap. 31, § 36: Jan. 23, 1862. Tr. C. L. 1865. chap. 31; § 12; Sept. 22, 1846. fault; effect of. § 2703. When the defendant shall be notified, by publication as aforesaid, and shall not appear and answer the action. Judgment by de- judgment by default may be entered, which may be proceeded on to final judgment as in ordinary actions, but such judgment shall only bind the property attached, and shall be no evidence of indebtedness against the defendant in any subsequent suit. Possession retained: how. Id. § 13. Return to include: what. Id. § 14. Officer responsible: when. Id. § 15. Defendant may answer. to be proved. § 2704. When property of the defendant found in his possession, or in the hands of any other person, shall be attached, the defendant or such other person may retain possession thereof by giving bond and security to the satisfaction of the officer executing the writ, to the officer or his successor in double the value of the property attached, conditioned that the same shall be forthcoming when and where the court shall direct, and shall abide the judgment of the court. Holzman vs Martinez vol. 2, page 271, N. M. Rep Wagner et al. vs. Romero, Sheriff et al., vol. 2, page 269, W. C. Rep. $2705. The officer executing the writ of attachment shall return, with the writ, all bonds taken by him in virtue thereof, a schedule of all property and effects attached, and the names of all the garnishees, the times and places when and where respectively summoned. § 2706. If the officer willfully fail to return a good and sufficient bond in any case where bond is required by this law, he shall be held and considered as security for the performance of all acts and the payment of all money to secure the performance of which such bond ought to have been taken. § 2707. In all cases when property or effects shall be attached, the defendant may, at the court to which the writ is returnable, put in his answer, without oath, denying the truth of any material fact contained in the affidavit, to which Amdavit: facts of the plaintiff may reply: a trial of the truth of the affidavit shall be had at the same term, and on such trial the plaintiff shall be held to prove the existence of the facts set forth in the affidavit as the ground of the attachment, and if the issue shall be found for him the cause shall proceed, but if it be found for the defendant the cause shall be dismissed at the costs of the plaintiff. Id. § 16. Allegations and interrogatories. of. $2708. The plaintiff may exhibit in the cause, written allegations and interrogatories at the return term of the writ, and not afterwards, touching the property, effects and credits Garnishee; answer attached in the hands of any garnishee. The garnishee shall exhibit and file his answer thereto, on oath, during such term, unless the court, for good cause shown, shall order otherwise. Judgment by de- In default of such answer, or of a sufficient answer, the plaintiff may take judgment by default against him, or the court may, upon motion, compel him to answer by attachment of his body. fault. Id. § 17. Judgment by default: procedure. Id. § 18. § 2709. Such judgment by default may be proceeded on to final judgment in like manner, as in cases of the defendant in actions upon contracts, but no final judgment shall be rendered against the garnishee until there shall be final judg. ment against the defendant. $ 2710. The plaintiff may deny the answer of the garnishee in whole or in part, and the issue shall be tried as ordinary issues between plaintiffs. If on such trial the property or effects of the defendant be found in the hands of the garnishee, the value thereof shall be assessed and judgment shall be rendered for the proper amount of money. If the answer of the garnishee be not excepted to or denied at the same term at which it is filed, it shall be taken to be true and sufficient. C. L. 1865, chap. 31. § 19; Sept. 22, 1846. Denial by plaintiff. Judgment against garnishee; when. ed. Id. § 20. Id. § 21. Attachment; probate clerk may issue § 2711. If, by the answer not excepted to nor denied, it shall appear that the garnishee is possessed of property or effects of the defendant, or is indebted to the defendant, the value of the property or effects, or of the debt, being ascertained, judgment may be rendered against the garnishee. § 2712. In all cases of controversy between the plaintiff Costs; how adjudg and garnishee, the parties may be adjudged to pay or recover costs as in ordinary cases between plaintiff and defendant. $2713. Any person wishing to sue his debtor by attachment, where the debt or sum claimed exceeds the sum of one writs. hundred dollars, may do so by first filing with the clerk of the district court of the county in which the debtor lives, or before the clerk of the probate court of the county in which the suit is brought, an affidavit and bond, as now required to be done before the clerk of the district court, which shall authorize the clerk before whom said affidavit and bond shall be filed to issue writs of attachment, the same as clerks of the district court, which attachment, together with the affidavit and bond, when issued by clerks of the probate court, shall be by them made returnable to the next term of the district court for the proper county, and shall be by them returned to said district court on or before the first day of said $23; Feb. 6. 1855. term. Wagner et al. vs. Romero, sheriff, et al.. vol. 2, page 269. W. C. Rep. $2714. The form of said affidavit shall be as follows, towit: Territory of New Mexico, I County of SS. This day personally appeared before me, the undersigned clerk of the (district court or probate court, as the case may be), A. B. (or C. D., agent for A. B., as the case may be), and, being duly sworn, says that E. F. is justly indebted to the said A. B. in the sum of- -dollars, after allowing all just off-sets, and that the said E. F. is (setting forth one of the causes of attachment). A. B. or C. D., agent for A. B. Sworn to and subscribed before me this- day of--A. D. -Clerk. $ 2715. The form of said bond shall be as follows, to-wit: Know all men by these presents, That we (A. B., principal, or C. D., agent for A. B., principal, as the case may be) and N. N. and M. M., his securities, are held and firmly bound unto the Territory of New Mexico in the sum of dollars, for the payment of which, well and truly to be made, we bind Returnable; when. C. L. 1865, chap. 31. Aidavit: form of. Id. § 25. Bond: form of. § 26: Feb. 6, 1855. C. L. 1865, chap. 31, ourselves, our heirs, executors and administrators, firmly by these presents, sealed with our seals and dated this day of, A. D. Perishable property; court may hear testimony. Id. § 27. Sale may be ordered; conditions. Id. § 28. Receiver; judge may appoint. Id. § 29. Proceeds: court to direct disposal of. Id. § 30. Compensation to receiver. Id. § 31. Attachment; ancillary suit. The condition of the above obligation is such that, whereas the above named A. B. has this day sued out an attachment before J. J., clerk of the (district court or probate court, as the case may be), against E. F., for the sum of - -dollars, returnable to the next term of the district court for the County of Now, if the said A. B. shall prosecute his said action without delay, and with effect, and refund all sums of money that may be adjudged to be refunded to the defendant, and pay all damages that may accrue to any defendant or garnishee by reason of said attachment, or any process of judgment thereon, then this obligation to be null and void, otherwise to remain in full force and effect. A. B. [L. S. § 2716. In all suits in the district courts by attachments, when the property attached shall be of a perishable nature and liable to be lost or diminished in value before the final adjudication of the case, and the defendant shall not give bond to retain the possession of the same, the plaintiff or defendant may make out a petition in writing setting forth the kind, nature and condition of the property, and present said petition to the judge of the district in vacation; and if he shall find it sufficient in form and conditions, he may hear the testimony of witnesses as to the property, and if he shall believe that the interests of both plaintiff and defendant will be promoted by the sale of the property, may order such sale to be made, and direct the manner thereof. § 2717. In such case the judge may appoint some one to make such sale, and require such bond and security to be given for the faithful performance of the same and the accounting for the proceeds and paying the same over, as the nature of the case may demand. § 2718. The judge may, if he shall find the safety of the property or the security of the proceeds shall require it, appoint a special receiver to take possession of the same, after giving such bond and security as the judge shall approve. § 2719. All such proceeds of sale of property shall be delivered to such person as the judge or court shall determine entitled to the same upon the final disposition of the suit. § 2720. The judge or court may allow to the receiver or person making said sale a reasonable compensation for his services, and the necessary costs for keeping and preserving the property. § 2721. Hereafter in any civil suit pending, or which may hereafter be brought, when the summons against the defendant has been returned, Executed, the plaintiff, his agent, or attorney, may, at any time before judgment, file an affidavit with the clerk of the court in which the suit is pending, and give bond with security as in cases of original attachments; and thereupon the clerk must issue an attachment, returnable as in other cases of original attachments. § 2722. In all cases when attachments are sued out ancillary to the original suit, the suit must thereafter proceed in all respects as if it had been commenced originally by attach ment. O. L. 1865. chap. 31. $33: Jan. 16, 1860. Procedure in ancillary suits. Id. § 34. Attachment, dismissed; when. L. 1874, chap. 17, § Corporate shares ment § 2723. In all cases here:fter commenced by attachment, in which the truth of the affidavit for attachment, or of any material allegation therein contained shall be denied, and the issue thus formed shall, upon the trial be found for the defendant, the attachment shall be dismissed and all property. rights, effects and credits held or affected thereby, or thereunder, shall be released and discharged from the operation thereof; but such dismissal of the attachment shall not abate 2; Dec. 31, 1873. the suit, but the same shall proceed as in ordinary cases. § 2724. When the process of attachment shall issue against bet to attacha party, who shall have or own any interest or amount of shares in any company doing business in, or corporation incorporated under the laws of this territory, or any foreign corporation doing business in this territory, the same may be attached in the following manner: The officer in whose hands the attachment is placed shall indorse an entry thereon of his levy on the corporate shares or interest of the defendant, and shall forthwith serve a copy of the attachment so indorsed, upon the president of the company or corporation, at the office of the company, or by levying the same at the usual and most notorious place of doing business of such company or corporation in this territory, which entry and service shall amount to and be considered a seizure of said corporate interest or shares, to all intents and purposes, and under an execution issued on such attachment, may be sold as in other Feb. 10. cases of ordinary execution. § 2725. Any transfer by the defendant of the stock or interest so attached after the levy of such attachment shall be void, and when an execution is issued, the said stock or interest shall be sold by the sheriff, or his deputy, according to the existing provisions of law in this territory in regard to the sale of personal property under attachment. § 2726. Certificates of purchase shall be granted by the officer selling, which, on presentation to the proper officer of the company or corporation, shall authorize a transfer of the stock to the purchaser, and it shall be his duty to make such transfer on the proper books of the corporation or company, if necessary, and afford the purchaser such evidence of title to the stock purchased as is usual and necessary with other stockholders. Indorsement by offeer. Service: effect of. L. 1882. chap. 6, §1: Transfers void: when. Sales; how to be made. Id. § 2. Certificate authority for transfer. Id. § 3. Jurisdiction acquired: when. Procedure if defendant dies. § 2727. 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 in relation thereto; 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 proceedings shall be carried on, but in all such cases other than where the defendant was a foreign corporation, his ; March 29. legal representatives shall be made parties to the action. L. 1884, chap. 3. § |