C.R.C.P. 402 (County Court)

(a) Before Judgment. Any party, at the time of filing a claim, in an action on contract,

express or implied, or in an action to recover damages for any tort committed against the

person or property of a resident of this state, or at any time afterward before judgment, may

have nonexempt property of the party against whom the claim is asserted (hereinafter

defendant), attached by an ex parte order of court in the manner and on the grounds

prescribed in this Rule, unless the defendant shall give good and sufficient security as

required by section (f) of this Rule. No ex parte attachments before judgment shall be

permitted other than those specified in this Rule.

(b) Affidavit. No writ of attachment shall issue unless the party asserting the claim

(hereinafter plaintiff), the plaintiff’s agent or attorney, or some credible person for the

plaintiff, shall file in the court in which the action is brought an affidavit setting forth that

the defendant is indebted to the plaintiff, or that the defendant is liable in damages to the

plaintiff for a tort committed against the person or property of a resident of this state,

stating the nature and amount of such indebtedness or claim for damages and setting forth

facts showing one or more of the causes of attachment of section (c) of this Rule.

(c) Causes. No writ of attachment shall issue unless it be shown by affidavit or

testimony in specific factual detail, within the personal knowledge of an affiant or witness,

that there is a reasonable probability that any of the following causes exist:

(1) The defendant is a foreign corporation without a certificate of authority to do

business in this state.

(2) The defendant has for more than four months been absent from the state, or the

whereabouts of the defendant are unknown, or the defendant is a nonresident of this state,

and all reasonable efforts to obtain in personam jurisdiction over the defendant have failed.

Plaintiff must show what efforts have been made to obtain jurisdiction over the defendant.

(3) The defendant hides, or defies an officer, so that process of law cannot be served

upon the defendant.

(4) The defendant is presently about to remove any property or effects, or a material

part thereof, from this state with intent to defraud, delay, or hinder one or more of the

defendant’s creditors, or to render execution unavailing if judgment is obtained.

(5) The defendant has fraudulently conveyed, transferred, or assigned any property or

effects, or a material part thereof, so as to hinder or delay one or more of the defendant’s

creditors, or to render execution unavailing if judgment is obtained.

(6) The defendant has fraudulently concealed, removed, or disposed of any property or

effects, or a material part thereof, so as to hinder or delay one or more of the defendant’s

creditors, or to render execution unavailing if judgment is obtained.

(7) The defendant is presently about to fraudulently convey, transfer, or assign any

property or effects, or a material part thereof, so as to hinder or delay one or more of the

defendant’s creditors, or to render execution unavailing if judgment is obtained.

(8) The defendant is presently about to fraudulently conceal, remove, or dispose of any

property or effects, or a material part thereof, so as to hinder or delay one or more of the

defendant’s creditors, or to render execution unavailing if judgment is obtained.

(9) The defendant has departed or is presently about to depart from this state, with the

intention of having any property or effects, or a material part thereof, removed from the

state.

(d) Plaintiff to Give Bond. Before the issuance of a writ of attachment the plaintiff

shall furnish a bond or written undertaking, sufficient to the court, in an amount set by the

court in its discretion, not exceeding double the amount claimed, to the effect that if the

defendant recover judgment, or if the court shall finally decide that the plaintiff was not

entitled to an attachment, the plaintiff will pay all costs that may be awarded to the

defendant, and all damages defendant may sustain by reason of the wrongful suing out of

the attachment. The defendant may require the sureties to satisfy the court that each is

worth the amount for which the person has become surety over and above the person’s just

debts and liabilities, in property located in this state and not by law exempt from execution.

(e) Court Issues Writ of Attachment. After the affidavit and bond are filed as

aforesaid and testimony had as the court may require, the court may issue a writ of

attachment, directed to the sheriff of a specified county, commanding the sheriff to attach

the lands, tenements, goods, chattels, rights, credits, moneys, and effects of said defendant,

of every kind, or so much thereof as will be sufficient to satisfy the claim sworn to,

regardless of whose hands or possession in which the same may be found.

(f) Contents of Writ and Notice. The writ shall direct the sheriff to serve a copy of

the writ on the defendant if found in the county, and to attach and keep safely all the

property of the defendant within the county, not exempt from execution, or so much

thereof as may be sufficient to satisfy the plaintiff’s claim, the amount of which shall be

stated in conformity with the affidavit. The writ shall also inform the defendant of the right

to traverse and to have a hearing to contest the attachment. If the defendant’s property is or

may be located in more than one county, additional or alias writs may be issued contemporaneously. If the defendant deposits the amount of money claimed by the plaintiff or

gives and furnishes security by an undertaking, approved by the sheriff, of a corporate

surety company or of at least two sureties in an amount sufficient to satisfy such claim, the

sheriff shall take such money or undertaking in lieu of the property. Alias writs may issue

at any time to the sheriffs of different counties.

(g) Service; How Made. The writ of attachment shall be served in like manner and

under the same conditions as are provided in these rules for the service of process. Service

shall be deemed completed upon the expiration of the same period as is provided for

service of process.

(h) Execution of Writ. The sheriff to whom the writ is directed and delivered shall

execute the same without delay as follows:

(1) Real property standing upon the records of the county in the name of the defendant

shall be attached by filing a copy of the writ, together with a description of the property

attached, with the recorder of the county.

(2) Real property, or any interest therein belonging to the defendant, and held by any

person, or standing upon the records of the county in the name of any other person but

belonging to the defendant, shall be attached by leaving with such person or the person’s

agent, if either be found in the county, a copy of the writ and a notice that such real

property (giving a description thereof), and any interest therein belonging to the defendant,

are attached pursuant to such writ, and filing a copy of such writ and notice with the

recorder of the county.

(3) Personal property shall be attached by taking it into custody.

(i) Return of Writ. The sheriff shall return the writ of attachment within 21 days after

its receipt, with a certificate of his proceedings endorsed thereon, or attached thereto,

making a full inventory of the property attached as a part of his return upon the writ.

(j) Execution of Writ on Sunday or Legal Holiday. If an affidavit or testimony is

received stating that it is necessary to execute the writ of attachment on Sunday or on a

legal holiday, to secure property sufficient to satisfy the judgment to be obtained, and if the

court is so satisfied, the court shall endorse on the writ an order to the officer directing the

writ to be executed on such day.

(k) No Final Judgment Until 35 Days After Levy.

(1) Creditors. No final judgment shall be rendered in a cause wherein an attachment

writ has been issued and a levy made thereunder, until the expiration of 35 days after such

levy has been made; and any creditor of the defendant making and filing within said

35-day period an affidavit and undertaking, as hereinbefore required of the plaintiff,

together with the complaint setting forth the claim against the defendant, shall be made a

party plaintiff and have like remedies against the defendant to secure the claim, as the law

gives to the original plaintiff.

(2) Judgment Creditors. Any other creditor whose claim has been reduced to judgment in this state may upon motion filed within said 35 days be made a party and have like

remedies against the attached property. Such judgment creditor shall not be required to

make or file an affidavit, undertaking or complaint, or have summons issue, provided, that

any such judgment creditor may be required to prove to the satisfaction of the court that the

judgment is bona fide and not in fraud of the rights of other creditors.

(l) Dismissal by One Creditor Does Not Affect Others. After any additional creditor

has been made a party to the action, as hereinbefore provided, a dismissal by the first or

any subsequent attaching creditor of the cause of action, or proceedings in attachments,

shall not operate as a dismissal of the attachment proceedings as to any other attaching

creditor; but the remaining creditors may proceed to final judgment therein the same as

though no such dismissal has been made.

(m) Final Judgment Prorated; When Creditors Preferred. The final judgment in

said action shall be a several judgment, wherein each creditor named as plaintiff shall have

and recover of the defendant the amount of the claim or demand, as found by the court to

be due, together with costs incurred; and the money realized from the attachment proceedings, after paying all costs taxed in the attachment action, shall be paid to the participating

creditors in proportion to the amounts of their several judgments; and any surplus moneys,

if any, shall be paid to the defendant by order of the court, upon proof thereof. Provided,

when the property is attached while the defendant is removing the same or after the same

has been removed from the county, and the same is overtaken and returned, or while same

is secreted by the defendant, or put out of the defendant’s hands, for the purpose of

defrauding the defendant’s creditors, the court may allow the creditor or creditors through

whose diligence the same shall have been secured a priority over other attachments or

judgment creditors.

(n) When Suit Transferred to District Court.

(1) Indivisible Property Over $15,000.00. Whenever in any attachment proceedings

in the county court it is determined by the court that the ownership of indivisible property

of the value of more than $15,000.00 is in issue, the county court shall suspend all

proceedings in the entire action and certify the same, including a transcript of any

judgment which may have been rendered, and transmit all papers therein to the district

court of the same county, and the entire actions shall thereupon proceed as if originally

instituted in the said district court, and any judgment so certified shall be entered in the

judgment docket of the district court and when so entered shall have the same force and

effect as if rendered originally by such district court; provided, however, that the judgment

of the district court may be reviewed by the Supreme Court on writ of certiorari.

(2) Intervenor or Attachment Creditor. Whenever the original suit in which a writ of

attachment shall be issued and served shall be begun in the county court of any county in

this state, and the claim of an attaching creditor therein, as hereinbefore provided, shall

exceed the sum of $15,000.00 exclusive of costs, it shall be the duty of such court to

forthwith certify such case and transmit all papers issued or filed therein the district court

of such county, and thereafter the case shall proceed in the same manner as if it had been

originally begun in such district court.

(o) Traverse of Affidavit. (1) The defendant may, at any time before trial, by

affidavit, traverse and put in issue the matters alleged in the affidavit, testimony, or other

evidence upon which the attachment is based and if the plaintiff shall establish the

reasonable probability that any one of the causes alleged in the affidavit exists, said

attachment shall be sustained; otherwise the same shall be dissolved. A hearing on the

defendant’s traverse shall be held within 7 days from the filing of the traverse and upon no

less than two business days’ notice to the plaintiff. If the debt for which the action is

brought is not due and for that reason the attachment is not sustained, the action shall be

dismissed; but if the debt is due, but the attachment nevertheless is not sustained, the action

may proceed to judgment after the attachment is dissolved, as in other actions where no

attachment is issued.

(2) A plaintiff who fails to prevail at the hearing provided by this section is liable to

the defendant for any damages sustained as a result of the issuance of process, costs, and

reasonable attorney’s fees. A claim for damages under this subsection may be brought as

part of the existing action, and the defendant shall be permitted to amend the answer and

any counterclaim for this purpose.

(p) Amendment of Affidavit. If at the hearing of issues formed by the traverse it shall

appear that the evidence introduced does not prove the cause or causes alleged in the

affidavits, but the evidence does tend to prove another cause of attachment in existence at

the time of the issuance of the writ, then on motion the affidavits may be amended to

conform to proof the same as pleadings are allowed to be amended in cases of variance.

(q) Intervention; Damages. Any third person claiming any of the property attached,

or any lien thereon or interest therein, may intervene under the provisions of Rule 324, and

in case of a judgment in that person’s favor may also recover such damages as have been

suffered by reason of the attachment of the property.

(r) Perishable Property May Be Sold. Where property taken by writ of execution or

attachment, or seized under order of court, is in danger of serious and immediate decay or

waste, or likely to depreciate rapidly in value pending the determination of the issues, or,

where the keeping of it will be attended with great expense, any party to the action may

apply to the court, upon due notice, for a sale thereof, and, thereupon the court may, in its

discretion, order the property sold in the manner provided for in said order and the

proceeds of said sale shall, thereupon, be deposited with the clerk to abide the further order

of the court.

(s) Application of Proceeds; Satisfaction of Judgment. If judgment is recovered by

the plaintiff or any intervenor, on order of court, all funds previously deposited with the

clerk, or in the hands of the sheriff, shall be first applied thereto. If any balance remain due,

execution shall issue and be delivered to the sheriff who shall sell so much of the attached

property as may be sufficient to satisfy the judgment. Sales shall be conducted as in cases

of sales on execution. If there is a personal judgment and after such sale the same is not

satisfied in full, the sheriff shall thereupon collect the balance as upon an execution in other

cases.

(t) Balance Due; Surplus. Whenever the judgment shall have been paid, the sheriff,

upon demand, shall deliver over to the defendant the attached property remaining in the

sheriff’s hands, and any proceeds of the property attached unapplied on the judgment.

(u) Procedure When Judgment is for Defendant. If the defendant recovers judgment

against the plaintiff, any undertaking received in the action, all the proceeds of sales, all

money collected by the sheriff, and all the property attached remaining in the sheriff’s

hands shall be delivered to the defendant, the writ of attachment shall be discharged, and

the property released therefrom.

(v) Defendant May Release Property; Bond. The defendant may at any time before

judgment have released any money in the hands of the clerk or any property in the hands

of the sheriff, by virtue of any writ of attachment, by executing the undertaking provided

in section (w) of this Rule. All the proceeds of sales all money collected by the sheriff, and

all the property attached remaining in the sheriff’s hands shall thereupon be released from

the attachment and delivered to the defendant upon the delivery and approval of the

undertaking.

(w) Conditions of Bond; Liability of Sheriff. Before releasing the attached property

to the defendant, the sheriff shall require and approve an undertaking executed by the

defendant to the plaintiff either of a corporate surety company or with at least two sureties

in such sum as may be fixed by the sheriff in not less than the value of the property, to the

effect that in case the plaintiff recover judgment in the action, and the attachment is not

dissolved, defendant will, on demand, redeliver such attached property so released to the

proper officer, to be applied to the payment of the judgment, and that in default thereof the

defendant and sureties will pay to the plaintiff the full value of the property so released. If

a sheriff shall release any property held under any writ of attachment without taking a

sufficient bond, the sheriff and the sheriff’s sureties shall be liable to the plaintiff for the

damages sustained thereby.

(x) Application to Discharge Attachment. The defendant may also, at any time

before trial, move that the attachment be discharged, on the ground that the writ was

improperly issued, for any reason appearing upon the face of the papers and proceedings in

the action. If on such application it shall satisfactorily appear that the writ of attachment

was improperly issued, it shall be discharged.

(y) New Bond; When Ordered; Failure to Furnish. If at any time where an

attachment has been issued it shall appear to the court that the undertaking is insufficient,

the court shall order another undertaking, and if the plaintiff fails to comply with such

order within 21 days after the same shall be made, all or any writs of attachment issued

therein shall be quashed. The additional undertaking shall be executed in the same manner

as the original, and the sureties therein shall be jointly and severally liable with those in the

original undertaking.

(z) New Trial; Appeal and Writs of Certiorari. Motions for new trial may be made

in the same time and manner, and shall be allowed in attachment proceedings, as in other

actions. Appeals from the county court to the district court and writs of certiorari may be

taken and prosecuted from any final judgment or order in such proceedings as in other civil

cases. Any order by which an attachment is released or sustained is a final judgment.