C.R.C.P. 102

History

Source: (i), (k), (n)(1), and (x) amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b). Cross references: For exemption of certain properties and funds from attachment, see § 8-42-124 (workers’ compensation insurance), § 10-7-205 (group life insurance policies), § 10-14-503 (ben- efits from fraternal benefit societies), § 13-54-102 (miscellaneous property), § 13-54-104 (wages), §§ 31-30.5-208 and 31-31-203 (police officers’ and firefighters’ pension plans), § 38-22-106 (cer- tain liens), and § 38-41-201 (homesteads), C.R.S. ANNOTATION I. General Consideration. II. Affidavit. III. Causes. A. In General. B. Grounds. IV. The Writ. A. In General. B. Service. C. Execution. V. No Final Judgment Until 30 Days After Levy. VI. Traverse of Affidavit. VII. Intervention. VIII. Defendant May Release Property; Bond. IX. New Trial; Appeal. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Seizure of Person or Property: Rules 101-104’’, see 23 Rocky Mt. L. Rev. 603 (1951). For article, ‘‘One Y ear Review of Civil Procedure and Appeals’’, see 37 Dicta 21 (1960). For article, ‘‘One Y ear Review of Civil Procedure and Appeals’’, see 38 Dicta 133 (1961). For article, ‘‘One Y ear Review of Property’’, see 40 Den. L. Ctr. J. 181 (1963). For article, ‘‘Federal Practice and Pro- cedure’’, see 57 Den. L.J. 263 (1980). Constitutionality. Attachment procedure specified in this rule comports with the require- ments of the due process clause of the four- teenth amendment. Bernhardt v. Commodity Option Co., 187 Colo. 89, 528 P.2d 919 (1974), cert. denied, 421 U.S. 1004, 95 S. Ct. 2406, 44 L. Ed. 2d 673 (1975). 1975 modified rule not retroactive. In view of the substantial modifications made to this rule by its repeal and reenactment and in view of the fact that the supreme court has not indi- cated otherwise, the new rule has no retroactive effect. Inwood Indus., Inc. v. Priestley, 37 Colo. App. 78, 545 P.2d 732 (1975), aff’d, 191 Colo. 543, 560 P.2d 822 (1976). But the supreme court neither approved nor disapproved of this holding and, therefore, the holding of the court of appeals has no precedential effect. Inwood Indus., Inc. v. Priestley, 191 Colo. 543, 560 P.2d 822 (1976). Remedy of attachment was unknown at common law and existed only by reason of statute or rules of procedure enacted pursuant to statutory authority. Rocky Mt. Oil Co. v. Cen- tral Nat’l Bank, 29 Colo. 129, 67 P. 153 (1901); Worchester v. State Farm Mut. Auto. Ins. Co., 172 Colo. 352, 473 P.2d 711 (1970). It is in derogation of the common law and must be strictly followed. Any failure to con- form to prescribed procedures, all being neces- sary and mandatory, is fatal and the writ is of no validity. Weiss v. Ahrens, 24 Colo. App. 531, 135 P. 987 (1913); Jayne v. Peck, 155 Colo. 513, 395 P.2d 603 (1964); Rencher v. District Court, 160 Colo. 523, 418 P.2d 289 (1966). It is a special remedy at law, except in some states where it is authorized in chancery. Dygert v. Clem, 26 Colo. App. 286, 143 P. 823 (1914). This rule controls as there is no statute empowering attachment in Colorado. Crist v. United Underwriters, Ltd., 230 F. Supp. 136 (D. Colo. 1964), aff’d, 343 F.2d 902 (10th Cir. 1965). Foreign corporation was found to be a ‘‘resident’’ of this state for purposes of sec- tion (a) where it was authorized to, and did, conduct business in this state and had three offices here. Old Republic Nat’l Title Ins. v. Kornegay, 2012 COA 140, 292 P.3d 1111. ‘‘Residence’’, as distinguished from ‘‘citi- zenship’’, ‘‘domicile’’, and ‘‘legal residence’’ of a corporation, discussed in Old Republic Nat’l Title Ins. v. Kornegay, 2012 COA 140, 292 P.3d 1111. Insurer’s obligation to defend and indem- nify a nonresident insured defendant is non- exempt property subject to attachment for the purposes of establishing quasi in rem jurisdic- tion. Baker v. Y oung, 798 P.2d 889 (Colo. 1990). Personal liability cannot be imposed upon defendant’s insured through a quasi in rem action against the insurance policy. Synan v. Haya, 15 P.3d 1117 (Colo. App. 2000). Plaintiff did not sustain his burden of proof that defendant intended to hinder him from collecting on a judgment, when defen- dant demonstrated he had sufficient funds to pay a judgment excluding proceeds from the pending sale. Haney v. Castle Meadows, Inc., 816 F. Supp. 655 (D. Colo. 1993). Applied in In re Harms, 7 B.R. 398 (Bankr. D. Colo. 1980); In re Tarletz, 27 B.R. 787 (Bankr. D. Colo. 1983); Crow-Watson Props., Inc. v. Carrier, 719 P.2d 365 (Colo. App. 1986). II. AFFIDA VIT. The 1975 revised rule requires that the affidavit set forth specific facts supporting the grounds of attachment. Inwood Indus., Inc. v. Priestley, 37 Colo. App. 78, 545 P.2d 732 (1975), aff’d, 191 Colo. 543, 560 P.2d 822 (1976). A sufficient affidavit is a jurisdictional re- quirement and a court has no authority to issue a writ of attachment without it. Mentzer v. Elli- son, 7 Colo. App. 315, 43 P. 464 (1896); Axelson v. Columbine Laundry Co., 81 Colo. 254, 254 P. 990 (1927); Markle v. Dearmin, 117 Colo. 45, 184 P.2d 495 (1947). The affidavit must state the grounds for attachment positively. Colo. V anadium Corp. v. Western Colo. Power Co., 73 Colo. 24, 213 P. 122 (1923). An affidavit for attachment which alleges that the defendant is indebted for ‘‘goods, wares, and merchandise sold by the plaintiff to the defendant’’, states the nature of the action suf- ficiently. Plummer v. Struby-Estabrooke Mer- cantile Co., 23 Colo. 190, 47 P. 294 (1896). But an affidavit stating that ‘‘the debt is for farm products, house rent, household furni- ture’’, and other necessaries for the debtor and his family does not state grounds for attachment under this rule. Markle v. Dearmin, 117 Colo. 45, 184 P.2d 495 (1947). This requirement is not satisfied by allega- tions on information and belief merely. Colo. V anadium Corp. v. Western Colo. Power Co., 73 Colo. 24, 213 P. 122 (1924). An affidavit which fails to state definitely the nature of the demand is defective. Leppel v. Beck, 2 Colo. App. 390, 31 P. 185 (1892). But not so defective as to render the proceed- ing absolutely void because of section (q) (now section (o)) of this rule permitting amendment. Leppel v. Beck, 2 Colo. App. 390, 31 P. 185 (1892). Affidavit must contain an allegation of in- debtedness and also one or more grounds of attachment. It is indispensable that the affidavit for attachment contain an allegation of indebt- edness from the defendant, and also some one or more of the grounds upon which the statute authorizes an attachment. If either allegation is absent from the affidavit, there is no power to issue the writ. Axelson v. Columbine Laundry Co., 81 Colo. 254, 254 P. 990 (1927); Gibson v. Gagnon, 82 Colo. 108, 257 P. 348 (1927). It cannot be attacked by a third person in a collateral proceeding. Where the affidavit is not attacked by the defendant in the attachment proceedings, nor does the record disclose that he contemplated interposing any defense what- ever to the proceedings, the affidavit cannot be attacked by a third party in a collateral proceed- ing but must be raised between the parties to the suit. Leppel v. Beck, 2 Colo. App. 390, 31 P. 185 (1892). Nor can it be attacked for the first time in an appellate court. Rice v. Hauptman, 2 Colo. App. 565, 31 P. 862 (1892). The burden is upon plaintiff to prove by a preponderance of the evidence the allega- tions in the affidavit. First Nat’l Bank v. Poor, 94 Colo. 314, 29 P.2d 713 (1934). The affidavit stands as a pleading, not alone in cases commenced originally by attach- ment, but where sued out in aid of an action the affidavit answers to the complaint in that pro- ceeding, and hence is so far a pleading that it is properly brought up by the record without being included in the statement required by the code. Goss v. Bd. of Comm’rs, 4 Colo. 468 (1878). A material allegation in an allegation must be taken to be true unless denied. Wehle v. Kerbs, 6 Colo. 167 (1882). III. CAUSES. A. In General. The words, ‘‘in an action’’, used in this section are not used to denote an action pending, but rather as introductory to the words describing the kind of action, to wit, ‘‘an action on contract, express or implied’’, in which the plaintiff may have the property of the defendant attached. So the words, ‘‘at the time of issuing the summons’’, in this section, meant precisely what they said as to the time when the writ of attachment might issue. When we consider that the chief utility of an attachment consists in the writ being served in time to prevent a delin- quent debtor from placing his property beyond the reach of the creditor, it would be unfortu- nate, indeed, if the writ could not issue until the debtor should have notice of the proceedings by the service of the summons. Schuster v. Rader, 13 Colo. 329, 22 P. 505 (1889). Whether one seeks restitution or damages does not change the underlying basis for his action, whether contract or tort. Crist v. United Underwriters, Ltd., 230 F. Supp. 136 (D. Colo. 1964), aff’d, 343 F.2d 902 (10th Cir. 1965). This rule refers only to those contracts existing within the intention of the parties making them. Crist v. United Underwriters, Ltd., 230 F. Supp. 136 (D. Colo. 1964), aff’d, 343 F.2d 902 (10th Cir. 1965). The phrase ‘‘implied contract’’ within the meaning of this rule is not inclusive of contracts implied in law. Crist v. United Underwriters, Ltd., 230 F. Supp. 136 (D. Colo. 1964), aff’d, 343 F.2d 902 (10th Cir. 1965). When the cause of attachment is that the action is for the price of value of an article or thing sold and delivered, which, according to the contract of sale, was to be paid for on delivery, there must be a concurrence of three facts in addition to that of indebtedness: (1) The thing must have been delivered, (2) there must have been no credit given, and (3) the contract to pay on delivery must be unconditional. If there has been a credit of ever so short a time beyond the delivery, or if the payment depends upon any condition whatever, as a demand, the contract does not come within the operation of the statute. Miller v. Godfrey & Co., 1 Colo. App. 177, 27 P. 1016 (1891). An attaching creditor does not occupy the status of a bona fide purchaser for value, and attachment can only operate upon the right and title of a debtor existing at the time of the levy. Nisbet v. Federal Title & Trust Co., 229 F. 644 (8th Cir.), cert. denied, 241 U.S. 669, 36 S. Ct. 553, 60 L. Ed. 1229 (1916). Private right of action arising under sec- tion 10(b) of the Securities Exchange Act of 1934 cannot be characterized as one ‘‘on con- tract’’. Crist v. United Underwriters, Ltd., 230 F. Supp. 136 (D. Colo. 1964), aff’d, 343 F.2d 902 (10th Cir. 1965). B. Grounds. Grounds for attachment changed. The grounds for attachment under the former rule, namely, that defendant refused to pay the value of goods upon delivery, has been eliminated from the revised rule. Inwood Indus., Inc. v. Priestley, 37 Colo. App. 78, 545 P.2d 732 (1975), aff’d, 191 Colo. 543, 560 P.2d 822 (1976). Action by resident defendant will not sus- tain attachment before judgment. Crist v. United Underwriters, Ltd., 230 F. Supp. 136 (D. Colo. 1964), aff’d, 343 F.2d 902 (10th Cir. 1965). Temporary absence from state. A finding of the trial court that a defendant in an attachment suit was a resident of the state so as to defeat an attachment based on the ground of nonresidence is supported by evidence which shows that de- fendant had been a resident of the state for a number of years, that he had gone out of the state and was absent from the state when the attachment was sued out, and where defendant and his wife testified that he had only temporar- ily left the state to accept a three-months job of work, leaving his household goods in the state. Newlon-Hart Grocer Co. v. Peet, 18 Colo. App. 147, 70 P. 446 (1902). Intent may be proved by circumstances as well as by direct evidence. First Nat’l Bank v. Poor, 94 Colo. 314, 29 P.2d 713 (1934). The question of intent is for the jury to determine. First Nat’l Bank v. Poor, 94 Colo. 314, 29 P.2d 713 (1934). Where intent is doubtful, it is proper to receive testimony of person making the con- veyance. Where the fraudulent intent is not a conclusive legal presumption from the facts, the party who made the conveyance is a competent witness as to what his purpose actually was. If, from the evidence, the intent is doubtful, as he is the only person who could know with cer- tainty, what, in fact, it was, it is proper to interrogate him in relation to it, and a refusal to permit him to answer the question would be error. Curran v. Rothschild, 14 Colo. App. 497, 60 P. 1111 (1900). Testimony not proper where the intent ap- pears upon the face of the transaction. Where the intent of the party appears upon the face of the transaction, or where the undisputed facts are irreconcilable with a lawful purpose, his testimony as to what his motives really were would be without effect and should not be re- ceived. Curran v. Rothschild, 14 Colo. App. 497, 60 P. 1111 (1900). Fraudulent intent should not be equated with secretive actions for purposes of section (c). Chaffin, Inc. v. Wallain, 689 P.2d 684 (Colo. App. 1984). The giving of a mortgage was not sufficient of itself to prove an intent on the part of the defendants to hinder or delay the plaintiff in the collection of its debt. Such intent must be ap- parent from all the facts and circumstances in evidence before an attachment can be sustained on the ground alleged. If a mortgage is given with such intent, the property of the mortgagor is subject to attachment, even though the mort- gagor had no purpose eventually to defeat the creditor in the collection of his demand, and even though the debt secured by the mortgage is a valid and subsisting liability. First Nat’l Bank v. Poor, 94 Colo. 314, 29 P.2d 713 (1934). Where the transaction results in the hin- dering or delaying of creditors, it is for the court to say whether it was fraudulent or not. When a party has intentionally executed an as- signment or conveyance of his property, which must hinder or defraud his creditors of their just demands, the question whether the conveyance is fraudulent or not necessarily becomes a ques- tion of law, and not of fact. Curran v. Rothschild, 14 Colo. App. 497, 60 P. 1111 (1900). It is not necessary to show that transfer was made with a dishonest motive. To justify an attachment on the ground that the debtor has transferred his property so as to hinder or delay his creditors, it is not necessary to show that the transfer was made with a dishonest motive or with a purpose to cheat creditors and deprive them of the power ever to realize on their claims. If a debtor assigns or transfers his prop- erty for the purpose of hindering or delaying his creditors in the collection of their claims, his act is fradulent within the meaning of the law and will justify an attachment although he may in- tend that eventually the proceeds of the prop- erty shall be applied to the payment of their claims, and honestly believes that by preventing them from sacrificing his property they will ultimately realize more money. Curran v. Rothschild, 14 Colo. App. 497, 60 P. 1111 (1900); Kalberer v. Wilmore, 65 Colo. 411, 177 P. 147 (1918). An honest transfer of property by a hus- band to his wife in satisfaction of a prior obli- gation cannot be made on the basis of a pro- ceeding in attachment. City of Loveland v. Kearney, 14 Colo. App. 463, 60 P. 584 (1900). Attachment lies for goods or money em- bezzled or stolen, or obtained by other species of frauds. Harden Farms, Inc. v. Amato, 160 F. Supp. 401 (D. Colo. 1958). The wrongful conversion of funds by an officer constitutes fraudulently contracting an obligation which will sustain an attachment. Harden Farms, Inc. v. Amato, 160 F. Supp. 401 (D. Colo. 1958). Misappropriation by an agent of a princi- pal’s money in a fraudulent way results in a breach of duty subjecting the agent to an action either ex delicto or assumpsit. In such a case the party injured may elect to sue upon the implied contract and waive the action ex delicto. Harden Farms, Inc. v. Amato, 160 F. Supp. 401 (D. Colo. 1958). IV. THE WRIT. A. In General. The 1975 revised rule would invalidate the writ obtained by plaintiff because it was is- sued by the clerk of the district court and not by the court itself, and because the writ failed to advise defendant of his right to traverse. Inwood Indus., Inc. v. Priestley, 37 Colo. App. 78, 545 P.2d 732 (1975), aff’d, 191 Colo. 543, 560 P.2d 822 (1976). A failure to pursue the requirements of the rule is almost universally held fatal to a levy. Graham v. Reno, 5 Colo. App. 330, 38 P. 835 (1894). Where lien is preserved and continued in force. Where a writ of attachment was levied on real estate of a debtor and judgment entered without service of either the attachment writ or summons, but afterwards, on discovering the error, the judgment was set aside and a new judgment entered, after personal service of an alias summons and of a copy of the attachment writ, the lien acquired at the commencement of the action by the levy of the writ was preserved and continued in force. Raynolds v. Ray, 12 Colo. 108, 20 P. 4 (1888). Defendants who obtained a favorable ver- dict in a tort case but did not assert a coun- terclaim may not use a writ under section (a) to attach the property of plaintiffs to recover their statutory costs. Section (a) authorizes a court to issue a writ of attachment only for the party bringing the claim, which would be a plaintiff or a defendant who has asserted a counterclaim. Hiner v. Johnson, 2012 COA 164, 310 P.3d 226. Trial court properly discharged defen- dants’ writ of attachment as it was improp- erly issued because: (1) Although section (a) uses the term ‘‘any party’’, it qualifies the term by limiting it to the party filing a claim ‘‘in an action on contract. . . or an action to recover damages for tort’’; (2) defendants failed to as- sert a counterclaim; and, (3) without a basis for the court to issue a writ of attachment, the writ of attachment was improperly issued; therefore, the trial court properly discharged the writ un- der section (w). Hiner v. Johnson, 2012 COA 164, 310 P.3d 226. Plaintiffs not entitled to damages, attorney fees, and costs under the rule because sec- tions (d) and (n)(2) do not authorize courts to make such awards to plaintiffs unless defen- dants have asserted a counterclaim. Section (d) only provides the basis for a defendant to recover costs and damages if the defendant re- covers judgment or the court determines that the plaintiff was not entitled to the writ of at- tachment. Section (n)(2) only provides a basis for a defendant to recover damages if the plain- tiff does not prevail at the hearing on a traverse of an affidavit accompanying a writ of attach- ment. Neither section of the rule includes a reciprocal statement that plaintiffs, in cases in which defendants do not assert a counterclaim, are entitled to damages. Hiner v. Johnson, 2012 COA 164, 310 P.3d 226. B. Service. Where possible personal service must be made before the court acquires jurisdiction. The mere levy of an attachment does not give the court jurisdiction to determine the question of indebtedness and condemn the attached prop- erty to pay the same. Where a defendant resides in this state, and there is no question but that he can be personally served, the service is com- plete when a copy of the writ is served upon him, and the property levied upon. Then, and not until then, does the court acquire jurisdic- tion to finally hear and determine the same. Thompson v. White, 25 Colo. 226, 54 P. 718 (1898). Where there was no personal service on the defendant, the mere levy of an attachment did not give the court jurisdiction to determine the question of indebtedness and condemn the at- tached property to pay the same. Great W. Min- ing Co. v. Woodmas of Alston Mining Co., 12 Colo. 46, 20 P. 771 (1888). Service by publication is permissible un- der section (g), which incorporates applicable rules for service of process. Hancock v. Boulder County Pub. Trustee, 920 P.2d 854 (Colo. App. 1995). Jurisdiction of persons acquired by service of process or by appearance and of the prop- erty by attachment. If, when property is at- tached, there is no service of summons upon the defendant and no appearance by him to the action, the proceeding is purely in rem. The jurisdiction of the court is confined to the prop- erty attached, and, if the attachment fails, there is nothing for the court to adjudicate. It can render no judgment of any kind. If the defen- dant is served with summons, or appears to the action, the proceeding is both in personam and in rem. The court has jurisdiction of the person by virtue of service of its process, or of appear- ance; and of the property by virtue of the at- tachment. But the court acquired no jurisdiction of the property merely by virtue of its jurisdic- tion of the person. Mentzer v. Ellison, 7 Colo. App. 315, 43 P. 464 (1896). Service of writ is required to enable the debtor to deposit the money sued for and prevent the lien. The service of the attachment writ is required for the purpose of enabling the debtor to deposit the money sued for, and thus prevent the lien from taking effect; or, if the lien already exists, thus to secure its dissolution; and also to enable him, in case he shall see fit so to do, to traverse and put in issue the matters stated in the affidavit of attachment. In a major- ity of cases, the levy of the writ will either precede or be made simultaneously with the service thereof. In some cases, the officer may serve the writ before he makes the levy, and in such cases the section provides that, if the amount of the claim be deposited, the levy shall not be made. Raynolds v. Ray, 12 Colo. 108, 20 P. 4 (1888). The lien does not become effective until the writ is properly and completely served. By filing a copy of the writ of attachment, together with a description of the property to be at- tached, with the recorder of the county, a valid levy is made, and a valid lien upon the property is thereby created. By the levy under a writ of attachment before the service thereof, the plain- tiff acquires a provisional lien upon the property levied on; but, before a valid judgment can be rendered by which the attachment lien is pre- served and made effective, there must be proper service of the summons and the writ of attach- ment. Thompson v. White, 25 Colo. 226, 54 P. 718 (1898). In the absence of a general appearance by defendant, an attachment lien does not become valid and effective and enforceable until the attachment writ is properly and completely served. Thompson v. White, 25 Colo. 226, 54 P. 718 (1898). Proper service includes delivery of a copy of the writ to defendant and filing a copy with the recorder; and no judgment establish- ing the lien, or ordering a sale of the property, is valid without such service, or without a general appearance, if that does away with the necessity for service. Thompson v. White, 25 Colo. 226, 54 P. 718 (1898). Mere filing of certificate is ineffective as to subsequent purchasers. Under this section a writ of attachment is not effectually levied upon lands unless a copy of the writ, with a descrip- tion of the lands taken, is filed with a recorder in the county. The mere filing of a certificate of the levy is without effect as to subsequent pur- chasers. Weiss v. Ahrens, 24 Colo. App. 531, 135 P. 987 (1913). Where defendant dies before copy of writ delivered to him. In an action against a resident defendant where an attachment had been levied upon real estate by filing a copy of the writ together with a description of the property with the recorder, but the defendant died before a copy of the writ was delivered to him, the attachment lien could not be perfected by ser- vice upon the executrix of the deceased defen- dant, nor by her general appearance in the ac- tion. Thompson v. White, 25 Colo. 226, 54 P. 718 (1898). A writ directed to the sheriff of a county cannot be executed by the sheriff of any other county, and cannot be executed by the sheriff to whom it is issued outside of his own county. McArthur v. Boynton, 19 Colo. App. 234, 74 P. 540 (1903). Use of a private process server, instead of the sheriff, to serve a writ on a defendant in- carcerated in another state complied with the requirements of this rule. Old Republic Nat’l Title Ins. v. Kornegay, 2012 COA 140, 292 P.3d 1111. Dismissal of the action error. Where a mo- tion of a defendant raises only the question of the sufficiency of service in an attachment pro- ceeding, dismissal of the action is error, since failure to obtain proper service does not warrant dismissal of a cause of action. Aero Spray, Inc. v. Ace Flying Serv., Inc., 139 Colo. 249, 338 P.2d 275 (1959). C. Execution. Execution of this writ serves as a lien on specified property throughout the duration of the litigation, thus securing for the plaintiff the practicality of benefiting from any judgment he might be awarded. Bernhardt v. Commodity Option Co., 187 Colo. 89, 528 P.2d 919 (1974), cert. denied, 421 U.S. 1004, 95 S. Ct. 2406, 44 L. Ed. 2d 673 (1975). A valid levy of a writ of attachment may be made on real estate and a valid lien ac- quired by indorsing thereon a description of the property attached and filing a copy of such writ, so indorsed, in the recorder’s office of the county wherein the real estate is situated. The levy of the writ creates a provisional lien; but, before a valid judgment can be rendered which will preserve and make the lien effective, there must be service of the writ and summons on the defendant. Raynolds v. Ray, 12 Colo. 108, 20 P. 4 (1888). Personal property capable of manual de- livery can be attached only by being taken into custody by the officer. An attempted levy of an attachment upon personal property, ca- pable of manual delivery, where the property was left in the custody of the defendant, and was not separated from defendant’s other prop- erty, was not such levy as would give the at- taching creditor or the officer any right in the property. Gottlieb v. Barton, 13 Colo. App. 147, 57 P. 754 (1899); Nichols v. Chittenden, 14 Colo. App. 49, 59 P. 954 (1899). Taking physical custody of tax lien certifi- cates was not necessary where county treasur- ers of counties in which property was located were served with writs of garnishment in aid of attachment. Old Republic Nat’l Title Ins. v. Kornegay, 2012 COA 140, 292 P.3d 1111. This rule, C.R.C.P. 103, and § 4-8-112 may be harmonized so that stock certificates may be reached by a creditor either by actual physical seizure, by a writ of attachment, if actually seized, or by serving the person who possesses the certificate with a writ of garnish- ment. Moreland v. Alpert, 124 P.3d 896 (Colo. App. 2005). Where failure to sue out writ is excusable. Where defendant and his wife both were non- residents, absconders, and he was a fugitive from justice, and neither had an agent in Colo- rado on whom service or execution of the writ of attachment could be made, had a writ of attachment been sued out by the creditor, it was impossible to execute it as required by this section because all the required steps essential to a valid levy must be taken or no valid seizure can be made. Failure, therefore, of plaintiff to sue out a writ of attachment was excusable. No seizure or levy upon the property by or under an attachment was possible in this state, and the only remedy, if any, left to the creditor was that invoked by him, a creditor’s suit, by which, in this state, as generally, an equitable lien may be procured, or an equitable levy made. Shuck v. Quackenbush, 75 Colo. 592, 227 P. 1041 (1924). When sheriff’s duties are terminated. This section provides that real estate ‘‘shall be at- tached by filing a copy of the writ, together with a description of the property attached with the recorder of the county’’. The sheriff’s duties are terminated when those acts are performed and he can exercise no further agency or control. The lien created by the attachment, whatever may be its character, is in the attaching creditor, and he only can release or discharge it. Barton v. Continental Oil Co., 5 Colo. App. 341, 38 P. 432 (1894). Wherever the wrongful levy of a writ is the gravamen of a suit, the burden must of ne- cessity be with the plaintiff to show that in fact a levy was made, unless it concerns personalty, and there be some circumstances of disposses- sion or disturbance of the owner’s rights which will sustain a suit. Graham v. Reno, 5 Colo. App. 330, 38 P. 835 (1894). An attack by a third person upon a void levy is not an attack upon the judgment. Where an insufficient and void levy of an at- tachment upon lands is made and the plaintiff in the action recovers judgment, and one not a party to that action institutes a suit in equity to set aside, as a cloud upon his title, such void and insufficient levy, the latter action is not an attack upon the judgment in the former. Weiss v. Ahrens, 24 Colo. App. 531, 135 P. 987 (1913). Seizure of property of nonresident as a condition precedent to jurisdiction is a judi- cial requirement. The rule requiring the sei- zure of property within the state belonging to a nonresident defendant, as a condition precedent to the exercise of jurisdiction, is a judicial, and not a statutory requirement. V an Wagenen v. Carpenter, 27 Colo. 444, 61 P. 698 (1900). Jurisdiction is aided by the same presump- tions as in cases of personal service. The ju- risdiction of a court of general jurisdiction in attachment proceedings is general, and its ac- tions therein are aided by the same presump- tions as in cases of personal service, and where jurisdiction is obtained in a case by attachment of the property of a nonresident, a judgment rendered therein and the property sold under a special execution, a sheriff’s deed thereunder is sufficient to establish ownership in the pur- chaser. V an Wagenen v. Carpenter, 27 Colo. 444, 61 P. 698 (1900). Upon a collateral attack, it will be conclu- sively presumed that everything necessary to be done was done, unless the contrary appears from the record. V an Wagenen v. Carpenter, 27 Colo. 444, 61 P. 698 (1900). The return of the officer upon a writ of attachment is the record of the levy, and is the legal evidence of the fact that the levy was made. It cannot be proved by parol evidence. Gottlieb v. Barton, 13 Colo. App. 147, 57 P. 754 (1889). Sheriff is not entitled to costs for making out the inventory. The making of an inventory of attached property is not a matter necessarily involving the expenditure of money out of pocket, and the sheriff is not entitled to costs therefor in addition to the statutory fees pre- scribed by statute for serving and otherwise executing attachment writs. Cramer v. Oppenstein, 16 Colo. 495, 27 P. 713 (1891). V. NO FINAL JUDGMENT UNTIL 30 DAYS AFTER LEVY. Purpose of provision. The plain purpose of this section is to permit creditors to prorate the proceeds of attached property, not to permit them to establish rights in a strange and unusual way. The provision simply makes it possible for all creditors to put themselves in a position of equality, in respect to the satisfaction, out of the property attached, of claims properly asserted and regularly adjudicated; and it is a matter of administrative policy and convenience that all creditors intervening are, upon application, named as plaintiffs in one general proceeding for the purpose of determining and adjudicating their respective rights. Trinidad Nat’l Bank v. Jamieson House Furnishing Co., 60 Colo. 356, 153 P. 441 (1915). The ‘‘like remedies’’ secured to an inter- vening attachment creditor by this subdivi- sion are no more or less than such means as were available to the original plaintiff to es- tablish and secure his claim, that is to say, upon the filing of affidavit, undertaking and com- plaint, with application to be made a party plaintiff in the original proceeding, the interven- ing creditor merely places his claim, in point of time of action, and for the purpose of proration, upon an equal basis with that of the original plaintiff, and should enforce his rights by the same legal modes as were available to the one first to act, but it certainly was not intended thereby to put an intervening creditor in a better position than he who first attached, and the section grants no privilege which obviates tak- ing the steps ordinarily requisite to jurisdiction in order to recover a valid judgment upon a claim properly established. Trinidad Nat’l Bank v. Jamieson House Furnishing Co., 60 Colo. 356, 153 P. 441 (1915). Creditors making themselves co-plaintiffs cannot assert any right superior to that of their co-plaintiff. Where in an attachment suit other creditors come in and make themselves co-plaintiffs with the original plaintiff in the attachment suit for the purpose of pro rata dis- tribution of the attached fund as provided in this subdivision, such creditors thereby preclude themselves from asserting any right in the case superior to that of their co-plaintiff. Rouse v. Wallace, 10 Colo. App. 93, 50 P. 366 (1897). Where petition comes too late. Petition for intervention comes too late where, before it was presented, judgment had been entered, execu- tion issued, and levy and sale had thereunder. Hartner v. Davis, 100 Colo. 464, 68 P.2d 456 (1937). VI. TRA VERSE OF AFFIDA VIT. The denial of grounds for attachment should be clear and specific. The plaintiffs set forth in the affidavits in aid of the writs of attachment the nature of the indebtedness, part of which was based on services rendered by the plaintiffs. A denial that the debt was owed was sufficient to put in issue the question whether services had been rendered for which payment was due at the time the services were rendered. Barbary v. Benz, 169 Colo. 408, 457 P.2d 389 (1969). A ‘‘verified traverse’’ by the defendant’s attorney, without an accompanying affidavit by a person with knowledge of the facts and con- taining merely a general denial that the defen- dant was about to transfer property fraudulently, is not sufficient. Old Republic Nat’l Title Ins. v. Kornegay, 2012 COA 140, 292 P.3d 1111. The separate traversing affidavit is not a pleading so as to permit a traverse, by an officer of a corporation, upon information and belief. An officer or an attorney of a corporation, who undertakes to traverse an affidavit in attach- ment, is presumed to know what his corporation did and must make his affidavit positively. Colo. V anadium Corp. v. Western Colo. Power Co., 73 Colo. 24, 213 P. 122 (1923). When the grounds of an attachment have been traversed and there is no evidence to sustain any one of them, the attachment should be dissolved. Mount Lincoln Coal Co. v. Lane, 23 Colo. 121, 46 P. 632 (1896). A traverse of an affidavit which does not deny the allegations as of the time stated in the affidavit is not good. Where traverse is in present tense in saying that the grounds of at- tachment are false but does not relate to the time in the past when the attachment was made, this section is not complied with. Colo. V ana- dium Corp. v. Western Colo. Power Co., 73 Colo. 24, 213 P. 122 (1897). The traverse affidavit must speak and deny as of the date on which the affidavits in support of attachment are filed in order to specifically put in issue the causes for attachment set forth in the affidavits. Barbary v. Benz, 169 Colo. 408, 457 P.2d 389 (1969). In the absence of a traverse, the court is not required to investigate the truth of the affidavit. This section does not require an in- vestigation of the truth of the allegations of the affidavit, or that the court shall make any find- ing or order concerning either the attachment or the property attached. These matters are merely incidental to the action and, there being no issue as to them, the court does not appear to have any duty appertaining thereto to perform. Brown v. Tucker, 7 Colo. 30, 1 P. 221 (1883). Waiver of order dissolving attachment. Where defendant, having obtained an order dis- solving an attachment, afterwards stipulated that the issues in the main cause, as well as those framed upon the traverse of the affidavit in attachment should be tried at the same time, he thereby waived the order dissolving the at- tachment, and all rights thereunder. Reyer v. Blaisdell, 26 Colo. App. 387, 143 P. 385 (1914). If the prescribed procedure for release of attached property is not invoked, the levy remains in force. Collins v. Burns, 16 Colo. 7, 26 P. 145 (1891). Lien becomes absolute if the ground for it is not successfully traversed. Under this rule an attachment plaintiff is in reality, and for many purposes, an incumbrancer. It is quite true the lien which he acquires is contingent rather than inchoate, and dependent not only upon a compliance with the rule which provides for its issue, but also upon the subsequent recovery of a judgment and proof of a cause of action on which he had a right to sue when he com- menced his action. In this sense, it is contin- gent; in another, it is absolute, or becomes ab- solute, if the ground for it is not successfully traversed and the plaintiff ultimately succeeds. Day v. Madden, 9 Colo. App. 464, 48 P. 1053 (1897). Where the statements of the affidavit are regularly traversed by the defendant without the court’s attention being called to its supposed defects, and the issues are found against him upon the trial; or, if the amount of actual dam- age proved by the plaintiff be less than the amount averred in the affidavit, the judgment will not be reversed on such grounds. De Stafford v. Gartley, 15 Colo. 32, 24 P. 580 (1890). VII. INTERVENTION. This rule is not intended to put an inter- vening creditor in a better position than he who first attached, and the rule grants no privi- lege which obviates taking the steps ordinarily requisite to jurisdiction in order to recover a valid judgment upon a claim properly estab- lished. Consolidated Fin. Corp. v. Thorp, 168 Colo. 144, 450 P.2d 320 (1969). Jurisdiction does not depend upon the re- cord of the permission to intervene. Permis- sion is presumed where nothing to the contrary appears and the court has assumed jurisdiction. Grove v. Foutch, 6 Colo. App. 357, 40 P. 852 (1895). VIII. DEFENDANT MAY RELEASE PROPERTY; BOND. Trial court may set the amount of a bond at zero, effectively waiving the bond require- ment, if the court determines that the plaintiff can respond in damages if necessary. Old Re- public Nat’l Title Ins. v. Kornegay, 2012 COA 140, 292 P.3d 1111. Judgment against the attaching creditor releases the property, restores proceeds, if any, and dissolves the writ. Vigil v. Pacheco, 95 Colo. 405, 36 P.2d 766 (1934). This rule authorizes parties whose prop- erty has been attached to obtain a bond re- leasing the property attached, but assuring the creditor if judgment is obtained, that the prop- erty will be returned to the sheriff for final action. Phoenix Assurance Co. v. Hughes, 367 F.2d 526 (10th Cir. 1966). Bond releases property from officers’ cus- tody but does not dissolve the attachment lien. Chittenden v. Nichols, 31 Colo. 202, 72 P. 53 (1903). Enforceable undertaking. An undertaking given by the defendant with sureties for the purpose of releasing money in the hands of a garnishee is enforceable where, by reason of its execution, the money was in fact paid over by the garnishee to the defendant. Schradsky v. Dunklee, 9 Colo. App. 394, 48 P. 666 (1897). Where person is estopped from contro- verting validity of undertaking. When a per- son signs an incomplete undertaking and deliv- ers the same to another for a particular purpose and with ostensible authority to fill in any needed matter to make it effective, and it is accepted in its completed form by the obligee, he is estopped from controverting its validity to the prejudice of the obligee. Palacios v. Brasher, 18 Colo. 593, 34 P. 251 (1893). Property in the hands of the sheriff. The sheriff has no authority to accept an undertaking for the release of money garnisheed, nor to execute a release for money in the hands of a garnishee, such property not being ‘‘in the hands of the sheriff’’. Nevertheless, where par- ties, through the instrumentality of an undertak- ing executed by them, procure money from the garnishee, they having thus received the benefit of the undertaking, cannot be heard to deny its binding obligation upon themselves upon the happening of the contingencies therein provided for. Abbot v. Williams, 15 Colo. 512, 25 P. 450 (1890). Lien not affected by redelivery bond. When property has been lawfully levied upon under proper process, and taken into possession by a sheriff, the lien thereby created is not affected by any subsequent levy or surrender of posses- sion under a redelivery bond, but whatever be- comes of the property after such levy, it is subject at all times to the lien created by the first levy. Curry v. Equitable Sur. Co., 27 Colo. App. 175, 148 P. 914 (1915). This does not apply to money in the hands of a garnishee. Phoenix Assurance Co. v. Hughes, 367 F.2d 526 (10th Cir. 1966). Neither officer nor plaintiff can refuse to accept property on account of damage. Where attached property has been released on a redelivery bond and the identical property is returned to the sheriff, it is the right of the bondsmen to have the property sold and the proceeds applied on the judgment and neither the officer nor the plaintiff can refuse to accept the return of the property on account of damage or diminution in value, nor is the plaintiff es- topped by such acceptance to sue upon the bond for damage to the property resulting from use by the defendant after it has been released to him under the bond. Creswell v. Woodside, 15 Colo. App. 468, 63 P. 330 (1900). Defective complaint. In a suit against the sureties on a redelivery bond given by defen- dant to plaintiff in an attachment suit to release the property attached, a complaint which fails to allege that demand was made on the defendant in the attachment suit for the return of the prop- erty released is fatally defective. It is not suffi- cient to allege that demand was made on the sureties in the bond. Murray v. Ginsberg, 10 Colo. App. 63, 48 P. 968 (1897). Return of property in damaged condition constitutes a breach of the bond. Where prop- erty, released from an attachment under a forth- coming bond, is damaged from use by the de- fendant after the execution of the bond, its return to the officer in such damaged condition is not a return of substantially the same property and constitutes a breach of the bond. Creswell v. Woodside, 15 Colo. App. 468, 63 P. 330 (1900). Measure of damages in such a case. In an action by an attachment plaintiff upon a redelivery bond where the property had been returned to the officer in a damaged condition resulting from use by the attachment defendant, the measure of plaintiff’s damage was the dimi- nution in value of the goods between the date of their release and the date of their return to the attaching officer, not to exceed the unpaid resi- due of the judgment. Creswell v. Woodside, 15 Colo. App. 468, 63 P. 330 (1900). Where attached property has been released on a redelivery bond and after judgment sus- taining the attachment the property is returned to the officer and the property is regularly and fairly sold as provided by statute and the pro- ceeds applied on the judgment, as between the parties, the selling price is conclusive of the value thereof, and in an action by an attachment plaintiff upon a redelivery bond for damage to the property from use by the defendant after the execution of the bond, an instruction that under- takes to charge plaintiff with the value of the property returned regardless of the amount it brought at the sale is erroneous, and the fact that the plaintiff was the purchaser at the sale is of no significance. Creswell v. Woodside, 15 Colo. App. 408, 63 P. 330 (1900). Bond not required to be executed under seal. A bond to release attached property is not required to be executed under seal, and if so executed the liability of the obligors is in no manner affected thereby. To authorize an agent to sign his principal’s name to such bond, it is not necessary that such authority be under seal, and parol evidence is sufficient to establish such authority, or to establish a ratification of an unauthorized signing. Lynch v. Smyth, 25 Colo. 103, 54 P. 634 (1898). Where attachment improperly issued. Looking to the affidavit and complaint, where there is no express or implied contract between the appellant and appellee, it follows that the attachment was improperly issued and should have been discharged under the motion. Goss v. Bd. of Comm’rs, 4 Colo. 468 (1878). IX. NEW TRIAL; APPEAL. An order in attachment proceedings dis- solving the writ and releasing the property is a final judgment. Kopff v. Judd, 134 Colo. 330, 304 P.2d 623 (1956); Wilson v. Kirkbride, 899 P.2d 323 (Colo. App. 1995). Time for filing notice of appeal began to run upon the denial of plaintiffs’ rule 59 motion. Wilson v. Kirkbride, 899 P.2d 323 (Colo. App. 1995). When a final judgment is entered, party adversely affected who wishes to appeal must file a motion for new trial as prescribed under C.R.C.P. 59(f) just as in the review of any other final judgment. Kopff v. Judd, 134 Colo. 330, 304 P.2d 623 (1956). Procedure. Steps necessary to effectively prosecute error to the usual judgment in civil actions also are essential to validate an appeal to a final judgment in attachment proceedings. Kopff v. Judd, 134 Colo. 330, 304 P.2d 623 (1956). Where final judgment sustaining writ of attachment was not questioned in a prior proceeding on error, in which the judgment on the merits was reversed, and thus became a final judgment binding upon the parties, reversal did not reopen the question of the validity of the attachment proceedings. Burt Chevrolet, Inc. v. Barth, 144 Colo. 180, 355 P.2d 538 (1960).