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title-8•Title 8 — Provisional Remedies in Civil Actions
Idaho Code, published by the Idaho Legislative Services Office. Idaho Statutes are updated to the website July 1 following the legislative session.
No person can be arrested in a civil action except as prescribed in this Code.
[(8-101) C.C.P. 1881, sec. 270; R.S., R.C., & C.L., sec. 4240; C.S., sec. 6729; I.C.A., sec. 6-101.]
The defendant may be arrested as hereinafter prescribed, in the following cases:
In an action for the recovery of money or damages on a cause of action arising upon a contract express or implied where the defendant is about to depart from the state with intent to defraud his creditors, or when the action is for wilful injury to person, to character, or to property, knowing the property to belong to another.
In an action for a fine or penalty, or on a promise to marry, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity; or for misconduct or neglect in office or in a professional employment, or for a wilful violation of duty.
In an action to recover the possession of personal property unjustly detained when the property, or any part thereof, has been concealed, removed or disposed of to prevent its being found or taken by the sheriff.
When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; or in concealing or disposing of the property for the taking, detention or conversion of which the action is brought.
When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.
[(8-102) C.C.P. 1881, sec. 271; R.S., R.C., & C.L., sec. 4241; C.S., sec. 6730; I.C.A., sec. 6-102.]
An order for the arrest of the defendant must be obtained from a judge of the court in which the action is pending.
[(8-103) C.C.P. 1881, sec. 272; R.S., R.C., & C.L., sec. 4242; C.S., sec. 6731; I.C.A., sec. 6-103; am. 1969, ch. 125, sec. 1, p. 386.]
The order may be made whenever it appears to the judge, by the affidavit of the plaintiff, or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section 8-102. The affidavit must be either positive or upon information and belief; and when upon information and belief, it must state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit must be filed with the clerk of the court.
[(8-104) C.C.P. 1881, sec. 273; R.S., R.C., & C.L., sec. 4243; C.S., sec. 6732; I.C.A., sec. 6-104.]
Before making the order the judge must require a written undertaking on the part of the plaintiff, with sureties in an amount to be fixed by the judge, which must be at least $500, to the effect that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful or without sufficient cause, not exceeding the sum specified in the undertaking. The undertaking must be filed with the clerk of the court.
[(8-105) C.C.P. 1881, sec. 274; R.S., R.C., & C.L., sec. 4244; C.S., sec. 6733; I.C.A., sec. 6-105.]
The order may be made at the time of the issuing of the summons, or at any time afterward before judgment. It must require the sheriff of the county where the defendant may be found forthwith to arrest him and hold him to bail in a specified sum and to return the order at a time therein mentioned to the clerk of the court in which the action is pending.
[(8-106) C.C.P. 1881, sec. 275; R.S., R.C., & C.L., sec. 4245; C.S., sec. 6734; I.C.A., sec. 6-106.]
The order of arrest, with a copy of the affidavit upon which it is made, must be delivered to the sheriff, who, upon arresting the defendant, must deliver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest.
[(8-107) C.C.P. 1881, sec. 276; R.S., R.C., & C.L., sec. 4246; C.S., sec. 6735; I.C.A., sec. 6-107.]
The sheriff must execute the order by arresting the defendant and keeping him in custody until discharged by law.
[(8-108) C.C.P. 1881, sec. 277; R.S., R.C., & C.L., sec. 4247; C.S., sec. 6736; I.C.A., sec. 6-108.]
The defendant, at any time before execution, must be discharged from the arrest, either upon giving bail or depositing the amount mentioned in the order of arrest.
[(8-109) C.C.P. 1881, sec. 278; R.S., R.C., & C.L., sec. 4248; C.S., sec. 6737; I.C.A., sec. 6-109.]
The defendant may give bail by causing a written undertaking to be executed by two (2) or more sufficient sureties, to the effect that they are bound in the amount mentioned in the order of arrest that the defendant will at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or that they will pay to the plaintiff the amount of any judgment which may be recovered in the action.
[(8-110) C.C.P. 1881, sec. 279; R.S., R.C., & C.L., sec. 4249; C.S., sec. 6738; I.C.A., sec. 6-110.]
At any time before judgment or within ten (10) days thereafter, the bail may surrender the defendant in their exoneration, or he may surrender himself to the sheriff of the county where he was arrested.
[(8-111) C.C.P. 1881, sec. 280; R.S., R.C., & C.L., sec. 4250; C.S., sec. 6739; I.C.A., sec. 6-111.]
For the purpose of surrendering the defendant, the bail, at any time or place before they are finally charged, may themselves arrest, or, by a written authority indorsed on a certified copy of the undertaking, may empower the sheriff to do so. Upon the arrest of defendant by the sheriff, or upon his delivery to the sheriff by the bail, or upon his own surrender, the bail are exonerated, if such arrest, delivery or surrender take place before the expiration of ten (10) days after judgment; but if such arrest, delivery or surrender be not made within ten (10) days after judgment, the bail are finally charged on their undertaking, and bound to pay the amount of the judgment within ten (10) days thereafter.
[(8-112) C.C.P. 1881, sec. 281; R.S., R.C., & C.L., sec. 4251; C.S., sec. 6740; I.C.A., sec. 6-112.]
If the bail neglect or refuse to pay the judgment within ten (10) days after they are finally charged, an action may be commenced against such bail for the amount of the original judgment.
[(8-113) C.C.P. 1881, sec. 282; R.S., R.C., & C.L., sec. 4252; C.S., sec. 6741; I.C.A., sec. 6-113.]
The bail are exonerated by the death of the defendant or his imprisonment in the state prison, or by his legal discharge from the obligation to render himself amenable to the process.
[(8-114) C.C.P. 1881, sec. 283; R.S., R.C., & C.L., sec. 4253; C.S., sec. 6742; I.C.A., sec. 6-114.]
Within the time limited for that purpose, the sheriff must file the order of arrest in the office of the clerk of the court in which the action is pending, with his return indorsed thereon, together with a copy of the undertaking of the bail. The original undertaking he must retain in his possession until filed, as herein provided. The plaintiff within ten (10) days thereafter, may serve upon the sheriff a notice that he does not accept the bail, or he is deemed to have accepted them, and the sheriff is exonerated from liability. If no notice be served within ten (10) days, the original undertaking must be filed with the clerk of the court.
[(8-115) C.C.P. 1881, sec. 284; R.S., R.C., & C.L., sec. 4254; C.S., sec. 6743; I.C.A., sec. 6-115.]
Within five (5) days after the receipt of notice, the sheriff or defendant may give the plaintiff or his attorney, notice of the justification of the same, or other bail (specifying the places of residence and occupation of the latter), before the judge of the court, at a specified time and place; the time to be not less than five (5) nor more than ten (10) days thereafter, except by consent of parties. In case other bail be given there must be a new undertaking.
[(8-116) C.C.P. 1881, sec. 285; R.S., R.C., & C.L., sec. 4225; C.S., sec. 6744; I.C.A., sec. 6-116; am. 1969, ch. 125, sec. 2, p. 386.]
The qualifications of bail are as follows:
Each of them must be resident and householder or freeholder within the state.
Each must be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this chapter, over and above all his liabilities, exclusive of property exempt from execution; but the judge, on justification, may allow more than two (2) sureties to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two (2) sufficient bail.
[(8-117) C.C.P. 1881, sec. 286; R.S., R.C., & C.L., sec. 4256; C.S., sec. 6745; I.C.A., sec. 6-117.]
For the purpose of justification each of the bail must attend before the judge at the time and place mentioned in the notice, and may be examined on oath on the part of the plaintiff touching his insufficiency, in such manner as the judge in his discretion may think proper. The examination must be reduced to writing and subscribed by the bail, if required by the plaintiff.
[(8-118) C.C.P. 1881, sec. 287; R.S., R.C., & C.L., sec. 4257; C.S., sec. 6746; I.C.A., sec. 6-118.]
If the judge find the bail sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed, and the sheriff is thereupon exonerated from liability.
[(8-119) C.C.P. 1881, sec. 288; R.S., R.C., & C.L., sec. 4258; C.S., sec. 6747; I.C.A., sec. 6-119.]
The defendant, or a person on behalf of the defendant, may at the time of the defendant’s arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order. In case the amount of bail be reduced, as provided in this chapter, the defendant, or a person on behalf of the defendant, may deposit such amount instead of giving bail. In either case the sheriff must give the person who made the deposit on behalf of the defendant, a certificate of the deposit made, and the defendant must be discharged from custody.
[(8-120) C.C.P. 1881, sec. 289; R.S., R.C., & C.L., sec. 4259; C.S., sec. 6748; I.C.A., sec. 6-120; am. 1997, ch. 106, sec. 1, p. 250.]
The sheriff must, immediately after the deposit, pay the same into court and take from the clerk receiving the same, two (2) certificates of such payment, the one of which he shall deliver to the person who made the deposit on behalf of the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff, to collect the sum deposited as in other cases of delinquency.
[(8-121) C.C.P. 1881, sec. 290; R.S., R.C., & C.L., sec. 4260; C.S., sec. 6749; I.C.A., sec. 6-121; am. 1997, ch. 106, sec. 2, p. 250.]
If money is deposited, as provided in the last two (2) sections, bail may be given and may justify upon notice, at any time before judgment; and on the filing of the undertaking and justification with the clerk, the money deposited must be refunded to the person who made the deposit.
[(8-122) C.C.P. 1881, sec. 291; R.S., R.C., & C.L., sec. 4261; C.S., sec. 6750; I.C.A., sec. 6-122; am. 1997, ch. 106, sec. 3, p. 251.]
Where money has been deposited, if it remains on deposit at the time of the recovery of a judgment in favor of the plaintiff, the clerk must, under the direction of the court, apply the same in satisfaction thereof; and after satisfying the judgment, refund the surplus, if any, to the person who made the deposit. If the judgment is in favor of the defendant, the clerk must, under the direction of the court refund to the person who made the deposit the whole sum deposited and remaining unapplied.
[(8-123) C.C.P. 1881, sec. 292; R.S., R.C., & C.L., sec. 4262; C.S., sec. 6751; I.C.A., sec. 6-123; am. 1997, ch. 106, sec. 4, p. 251.]
A defendant arrested may, at any time before the trial of the action, or if there be no trial, before the entry of judgment, apply to the judge of the court in which the action is pending, or to the court, upon reasonable notice, to vacate the order of arrest or to reduce the amount of bail. If the application be made upon affidavits on the part of defendant, but not otherwise, the plaintiff may oppose the same by affidavits, or other proofs, in addition to those on which the order of arrest was made.
[(8-126) C.C.P. 1881, sec. 295; R.S., R.C., & C.L., sec. 4265; C.S., sec. 6754; I.C.A., sec. 6-126.]
If, upon application, it appears that there was not sufficient cause for the arrest, the order must be vacated; or if it appears that the bail was fixed too high, the amount must be reduced.
[(8-127) C.C.P. 1881, sec. 296; R.S., R.C., & C.L., sec. 4266; C.S., sec. 6755; I.C.A., sec. 6-127.]
Any person confined in jail on an execution issued on a judgment rendered in a civil action must be discharged therefrom upon the conditions in this chapter specified.
[(8-201) C.C.P. 1881, sec. 783; R.S., R.C., & C.L., sec. 5075; C.S., sec. 7308; I.C.A., sec. 6-201.]
Such person must cause a notice in writing to be given to the plaintiff, his agent or attorney, that at a certain time and place he will apply to the judge of the district court of the county in which such person may be confined, or, in case of his absence or inability to act, to a magistrate of the county in which such person may be imprisoned, for the purpose of obtaining a discharge from his imprisonment.
[(8-202) C.C.P. 1881, sec. 784; R.S., R.C., & C.L., sec. 5076; C.S., sec. 7309; I.C.A., sec. 6-602; am. 1969, ch. 125, sec. 3, p. 386.]
Such notice must be served upon the plaintiff, his agent or attorney, one (1) day at least before the hearing of the application.
[(8-203) C.C.P. 1881, sec. 785; R.S., R.C., & C.L., sec. 5077; C.S., sec. 7310; I.C.A., sec. 6-203.]
At the time and place specified in the notice, such person must be taken before such judge, who must examine him under oath concerning his estate, and property, and effects, and the disposal thereof, and his ability to pay the judgment for which he is committed, or any part thereof, and such judge may also hear any other legal and pertinent evidence that may be produced by the debtor or the creditor.
[(8-204) C.C.P. 1881, sec. 786; R.S., R.C., & C.L., sec. 5078; C.S., sec. 7311; I.C.A., sec. 6-204.]
The plaintiff in the action may, upon such examination, propose to the prisoner any interrogatories pertinent to the inquiry, and they must, if required by him, be proposed and answered in writing, and the answer must be signed and sworn to by the prisoner.
[(8-205) C.C.P. 1881, sec. 787; R.S., R.C., & C.L., sec. 5079; C.S., sec. 7312; I.C.A., sec. 6-205.]
If, upon the examination, the judge is satisfied that the prisoner is entitled to his discharge, he must administer to him the following oath, to wit: "I, …., do solemnly swear that I have not any estate, real or personal, to the amount of fifty dollars ($50.00), except such as is by law exempted from being taken in execution; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to hinder, delay or defraud my creditors, so help me God."
[(8-206) C.C.P. 1881, sec. 788; R.S., R.C., & C.L., sec. 5080; C.S., sec. 7313; I.C.A., sec. 6-206.]
After administering the oath the judge must issue an order that the prisoner be discharged from custody, and the officer, upon the service of such order, must discharge the prisoner forthwith, if he be imprisoned for no other cause.
[(8-207) C.C.P. 1881, sec. 789; R.S., R.C., & C.L., sec. 5081; C.S., sec. 7314; I.C.A., sec. 6-207.]
If such judge does not discharge the prisoner, he may apply for his discharge at the end of every succeeding thirty (30) days, in the same manner as above provided, and the same proceedings must thereupon be had.
[(8-208) C.C.P. 1881, sec. 790; R.S., R.C., & C.L., sec. 5082; C.S., sec. 7315; I.C.A., sec. 6-208.]
The prisoner after being so discharged is forever exempted from arrest or imprisonment for the same debt, unless he be convicted of having wilfully sworn falsely upon his examination before the judge, or in taking the oath before prescribed.
[(8-209) C.C.P. 1881, sec. 791; R.S., R.C., & C.L., sec. 5083; C.S., sec. 7316; I.C.A., sec. 6-209.]
The judgment against any prisoner who is discharged remains in full force against any estate which may then, or at any time afterward during the life of the judgment, belong to him, and the plaintiff may take out a new execution against the goods and estate of the prisoner in like manner as if he had never been committed.
[(8-210) C.C.P. 1881, sec. 792; R.S., R.C., & C.L., sec. 5084; C.S., sec. 7317; I.C.A., sec. 6-210.]
The plaintiff in the action may at any time order the prisoner to be discharged, and he is not thereafter liable to imprisonment for the same cause of action.
[(8-211) C.C.P. 1881, sec. 793; R.S., R.C., & C.L., sec. 5085; C.S., sec. 7318; I.C.A., sec. 6-211.]
Whenever a person is committed to jail on an execution issued on a judgment recovered in a civil action, the creditor, his agent or attorney, must advance to the jailer on such commitment, sufficient money for the board of the prisoner, at the rate provided by law, for one (1) week, and must make the like advance for every successive week of his imprisonment; and in case of failure to do so, the jailer must forthwith discharge such prisoner from custody, and such discharge has the same effect as if made by order of the creditor.
[(8-212) C.C.P. 1881, sec. 794; R.S., R.C., & C.L., sec. 5086; C.S., sec. 7319; I.C.A., sec. 6-212.]
The plaintiff in an action to recover the possession of personal property may, at the time of issuance of summons, or at any time before trial, claim the delivery of such property to him as provided in this chapter.
[I.C., sec. 8-301, as added by 1973, ch. 118, sec. 2, p. 219.]
(1) Where a delivery is claimed, the plaintiff, by verified complaint or by an affidavit made by plaintiff or by someone on his behalf, filed with the court, shall show:
(a) That the plaintiff is the owner of the property claimed or is entitled to the possession thereof, and the source of such title or right; and if plaintiff’s interest in such property is based upon a written instrument, a copy thereof shall be attached;
(b) That the property is wrongfully detained by the defendant, the means by which the defendant came into possession thereof, and the cause of such detention according to his best knowledge, information and belief;
(c) A particular description of the property, a statement of its actual value, and a statement to his best knowledge, information, and belief concerning the location of the property and of the residence and business address, if any, of the defendant;
(d) That the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.
(2) The court shall, without delay, examine the complaint and affidavit, and if it is satisfied that they meet the requirements of subsection (1) of this section, it shall issue an order directed to the defendant to show cause why the property should not be taken from the defendant and delivered to the plaintiff. Such order shall fix the date and time for the hearing thereof, which shall be no sooner than five (5) days from the issuance thereof, and shall direct the time within which service thereof shall be made upon the defendant. Such order shall inform the defendant that he may file affidavits on his behalf with the court and may appear and present testimony on his behalf at the time of such hearing, or that he may, at or prior to such hearing, file with the court a written undertaking to stay the delivery of the property, in accordance with the provisions of section 8-306, Idaho Code, and that, if he fails to appear, plaintiff will apply to the court for a writ of possession without further notice to defendant. If the writ of possession has issued prior to the hearing, the defendant may apply to the court to have the hearing set at an earlier date. Such order shall fix the manner in which service thereof, together with copies of the complaint and affidavit, shall be made, which shall be by personal service, or in such manner as the judge may determine to be reasonably calculated to afford notice thereof to the defendant under the circumstances appearing from the complaint and affidavit. The plaintiff shall cause proof of service to be filed with the court prior to the hearing.
(3) Upon examination of the complaint and affidavit and such other evidence or testimony as the judge may, thereupon, require, a writ of possession may be issued prior to hearing, if probable cause appears that any of the following exist:
(a) The defendant gained possession of the property by larceny, as defined by any section of chapter 46, title 18, Idaho Code;
(b) The property consists of one (1) or more negotiable instruments or credit cards;
(c) By reason of specific facts shown, the property is perishable, and will perish before any noticed hearing can be had, or is in immediate danger of destruction, serious harm, concealment, or removal from this state, or of sale to an innocent purchaser, and that the holder of such property threatens to destroy, harm, conceal, remove it from the state, or sell it to an innocent purchaser.
Where a writ of possession has been issued prior to hearing under the provisions of this section, the defendant or other person from whom possession of such property has been taken may apply to the court for an order shortening the time for hearing on the order to show cause, and the court may, upon such application, shorten the time for such hearing, and direct that the matter shall be heard on not less than forty-eight (48) hours’ notice to the plaintiff.
(4) Under any of the circumstances described in subsection (1) of this section, or in lieu of the immediate issuance of a writ of possession under any of the circumstances described in subsection (3) of this section, the judge may, in addition to the issuance of an order to show cause, issue such temporary restraining orders, directed to the defendant, prohibiting such acts with respect to the property, as may appear to be necessary for the preservation of rights of the parties and the status of the property.
(5) Upon the hearing on the order to show cause, the court shall consider the showing made by the parties appearing, and shall make a preliminary determination which party, with reasonable probability, is entitled to possession, use, and disposition of the property, pending final adjudication of the claims of the parties. If the court determines that the action is one in which a prejudgment writ of possession should issue, it shall direct the issuance of such writ.
[I.C., sec. 8-302, as added by 1973, ch. 118, sec. 2, p. 219.]
A writ of possession shall not issue until plaintiff has filed with the court a written undertaking executed by two (2) or more sufficient sureties, to the effect that they are bound to the defendant in double the value of the property, as determined by the court, for the return of the property to the defendant, if return thereof be ordered, and for the payment to him of any sum as may from any cause be recovered against the plaintiff.
[I.C., sec. 8-303, as added by 1973, ch. 118, sec. 2, p. 219.]
(1) The writ of possession shall be directed to the sheriff within whose jurisdiction the property is located. It shall describe the specific property to be seized, and shall specify the location or locations where, as determined by the court from all the evidence, there is probable cause to believe the property or some part thereof will be found. It shall direct the sheriff to seize the same if it is found in the possession of the defendant or his agent and to retain it in his custody. There shall be attached to such writ a copy of the written undertaking filed by the plaintiff, and such writ shall inform the defendant that he has the right to except to the sureties upon such undertaking or to file a written undertaking for the redelivery of such property, as provided in section 8-306, Idaho Code.
(2) Upon probable cause shown by further affidavit made by the plaintiff or someone on his behalf, filed with the court, additional writs of possession may be issued by the court, without further notice, to direct any sheriff within whose jurisdiction the property may be located to search for the property at another location or locations and to seize the same, if found.
[I.C., sec. 8-304, as added by 1973, ch. 118, sec. 2, p. 219.]
The sheriff shall forthwith take the property, if it be in the possession of the defendant or his agent, and retain it in his custody, either by removing the property to a place of safekeeping or, upon good cause shown, by installing a keeper.
If the property or any part thereof is in a building or inclosure, the sheriff shall demand its delivery, announcing his identity, purpose, and the authority under which he acts. If it is not voluntarily delivered, he shall cause the building or inclosure to be broken open in such manner as he reasonably believes will cause the least damage to the building or inclosure, and take the property into his possession. He may call upon the power of the county to aid and protect him.
The sheriff shall, without delay, serve upon the defendant a copy of the writ of possession and written undertaking, by delivering the same to him personally, if he can be found, or to his agent from whose possession the property is taken; or, if neither can be found, by leaving them at the usual place of abode of either with some person of suitable age and discretion; or, if neither have any known place of abode, by mailing them to their last known address.
[I.C., sec. 8-305, as added by 1973, ch. 118, sec. 2, p. 219.]
At any time prior to the hearing of the order to show cause, or before the delivery of the property to the plaintiff, the defendant may require the return thereof upon filing with the court a written undertaking executed by two (2) or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the verified complaint or affidavit of the plaintiff or as determined by the court, for the delivery thereof to the plaintiff, if such delivery be ordered, and for the payment to him of such sum as may for any cause be recovered against the defendant. At the time of filing such undertaking, the defendant shall serve upon the plaintiff or his attorney and the sheriff, if such property shall then be in the custody of the sheriff, a notice of filing of such undertaking, to which a copy of such undertaking shall be attached, and shall cause proof of service thereof to be filed with the court. If such undertaking be filed prior to hearing of the order to show cause, proceedings thereunder shall terminate, unless exception is taken to such sureties. If, at the time of filing of such undertaking, the property shall be in the custody of the sheriff, such property shall be redelivered to the defendant five (5) days after service of notice of filing such undertaking upon the plaintiff or his attorney, unless exception is taken to such sureties.
[I.C., sec. 8-306, as added by 1973, ch. 118, sec. 2, p. 219.]
The qualification of sureties under any written undertaking referred to in this chapter shall be such as are prescribed by this code, in respect to bail upon an order of civil arrest. Either party may, within two (2) days after service of an undertaking or notice of filing an undertaking under the provisions of this chapter, give written notice to the court, the other party and the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When a party excepts, the other party’s sureties shall justify on notice within not less than two (2) nor more than five (5) days, in like manner as upon bail in civil arrest. If the property be in the custody of the sheriff, he shall retain custody thereof until the justification is completed or waived or fails. If the sureties fail to justify, the sheriff shall proceed as if no such undertaking had been filed. If the sureties justify or the exception is waived, he shall deliver the property to the party filing such undertaking.
[I.C., sec. 8-307, as added by 1973, ch. 118, sec. 2, p. 219.]
When the sheriff has taken property as provided in this chapter, he shall keep it in a secure place and deliver it to the party entitled thereto upon receiving his fees for taking and his necessary expenses for keeping the same, after expiration of five (5) days after service upon the defendant of a copy of the written undertaking as provided in section 8-305, Idaho Code, unless defendant shall file an undertaking for redelivery as provided in section 8-306, Idaho Code, and expiration of the time for exception to the sureties upon any undertaking, unless the court shall by order stay such delivery.
[I.C., sec. 8-308, as added by 1973, ch. 118, sec. 2, p. 219.]
In cases where the property taken is claimed by any person other than the defendant or his agent, the rules and proceedings applicable in cases of third party claims after levy under execution shall apply.
[I.C., sec. 8-309, as added by 1973, ch. 118, sec. 2, p. 219.]
The sheriff shall return the writ of possession, with his proceedings thereon, to the court in which the action is pending, within twenty (20) days after taking the property mentioned therein.
[I.C., sec. 8-310, as added by 1973, ch. 118, sec. 2, p. 219.]
After the property has been delivered to a party or the value thereof secured by an undertaking as provided in this chapter, the court shall, by appropriate order, protect that party in the possession of such property until the final determination of the action.
[I.C., sec. 8-311, as added by 1973, ch. 118, sec. 2, p. 219.]
In all proceedings brought to recover the possession of personal property, all courts in which such actions are pending, shall, upon request of any party thereto, give such actions precedence over all other civil actions, except actions to which special precedence is otherwise given by law, in the matter of setting the same for hearing or trial, and in hearing or trial thereof, to the end that all such actions shall be quickly heard and determined.
[I.C., sec. 8-312, as added by 1973, ch. 118, sec. 2, p. 219.]
The plaintiff at the time of the issuing of summons, or at any time afterwards may make application to have the property of the defendant attached in accordance with the procedures provided for in this chapter, as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment as in this chapter provided in the following cases.
In an action upon a judgment, or upon contract, express or implied, for the direct payment of money, where the contract is not secured by any mortgage, deed of trust, security interest or lien upon real or personal property; or, if originally so secured, such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless.
In an action upon a judgment, or upon contract, express or implied, or for the collection of any penalty provided by any statute of this state, against a defendant not residing in this state.
[(8-501) C.C.P. 1881, sec. 318; R.S. & R.C., sec. 4302; am. 1913, ch. 51, sec. 1, p. 160; reen. C.L., sec. 4302; C.S., sec. 6779; I.C.A., sec. 6-501; am. 1974, ch. 307, sec. 2, p. 1793.]
(a) A plaintiff desiring the issuance of a writ of attachment shall file with the court an application therefor supported by an affidavit made by or on behalf of plaintiff setting forth:
That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal setoffs or counterclaims) and whether upon a judgment or upon a contract for the direct payment of money, and that the payment of the same has not been secured by any mortgage, deed of trust, security interest or lien upon real or personal property, or if originally secured, that such security has, without an act of the plaintiff, or the person to whom the security was given, become valueless.
When the defendant is a nonresident of this state, that such defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal setoffs or counterclaims), and that defendant is a nonresident of the state.
That the attachment is not sought and the action is not prosecuted to hinder, delay or defraud any creditor of the defendant.
(b) The court shall, without delay, examine the complaint and affidavit, and if satisfied that they meet the requirements of subdivision (a), it shall issue an order directed to the defendant to show cause why a writ of attachment should not issue. Such order shall fix the date and time for the hearing thereon, which shall be no sooner than five (5) days from the issuance thereof, and shall direct the time within which service thereof shall be made upon the defendant. Such order shall inform the defendant he may file affidavit on his behalf with the court and may appear and present testimony on his behalf at the time of such hearing, or he may, at or prior to such hearing, file with the court a written undertaking to stay the issuance of the writ of attachment in accordance with the provisions of section 8-506C, Idaho Code, and that if he fails to appear plaintiff will apply to the court for a writ of attachment without further notice to defendant. If the attachment has issued prior to the hearing, the defendant may apply to the court to have the hearing set at an earlier date. Such order shall fix the manner in which service thereof, together with a copy of the complaint and affidavit, shall be made, which shall be by personal service, or in such manner as the judge may determine to be reasonably calculated to afford notice thereof to the defendant under the circumstances appearing from the complaint and affidavit. The plaintiff shall cause proof of service to be filed with the court prior to the hearing.
(c) Upon examination of the complaint and affidavit and such other evidence or testimony as the judge may, thereupon, require, a writ of attachment may be issued prior to hearing, if probable cause appears that any of the following exist:
(1) The jurisdiction of the court is predicated upon attachment of the defendant’s property within this state;
(2) The property specifically sought to be attached consists of one (1) or more negotiable instruments. In such case the writ shall by its terms restrict the levy by the sheriff thereunder, to such negotiable instruments;
(3) By reason of specific facts shown, the property specifically sought to be attached is a bank account subject to the threat of imminent withdrawal, or is perishable, and will perish before any noticed hearing can be had, or is in immediate danger of destruction, serious harm, concealment, or removal from this state, or of sale to an innocent purchaser, and the holder of such property threatens to destroy, harm, conceal, remove it from the state, or sell it to an innocent purchaser. In such case the writ shall by its terms limit the levy by the sheriff thereunder to such specific property.
Where a writ of attachment has been issued prior to hearing under the provisions of this section, the defendant or other person from whom possession of such property has been taken may apply to the court for an order shortening the time for hearing on the order to show cause, and the court may, upon such application, shorten the time for such hearing, and direct that the matter be heard on not less than forty-eight (48) hours’ notice to the plaintiff.
(d) Under any of the circumstances described in subsection (a), or paragraph (1) of subsection (c) of this section, or in lieu of the immediate issuance of a writ of attachment under any of the circumstances described in paragraphs (2) and (3) of subsection (c) of this section, the judge may, in addition to the issuance of an order to show cause, issue such temporary restraining orders, directed to the defendant, prohibiting such acts with respect to the property, as may appear to be necessary for the preservation of rights of the parties and the status of the property.
(e) Upon the hearing on the order to show cause, the court shall consider the showing made by the parties appearing, and shall make a preliminary determination of whether there is a reasonable probability that the plaintiff will prevail in its claim. If the court makes this determination favorably to the plaintiff, it shall, upon examination of the evidence or testimony submitted and such other evidence or testimony as the judge may thereupon(,) require, determine the proper amount to be specified in the undertaking required by section 8-503, Idaho Code, and if requested, the value of any property sought to be retained by or returned to defendant and the proper amount to be specified in any undertaking which may be or has been filed by defendant pursuant to section 8-506C, Idaho Code. If the court determines that the action is one in which a writ of attachment should issue, it shall direct the issuance of such writ. The court may direct the order in which the writ shall be levied upon different assets of the defendant, if, in the aggregate, they exceed in value an amount clearly adequate to secure any judgment which may be recovered by the plaintiff.
[(8-502) C.C.P. 1881, sec. 319; R.S., & R.C., sec. 4303; am. 1913, ch. 51, sec. 2, p. 160; reen. C.L., sec. 4303; C.S., sec. 6780; I.C.A., sec. 6-502; am. 1974, ch. 307, sec. 3, p. 1793.]
(a) No writ of attachment shall issue except upon the filing with the court of a written undertaking on the part of the plaintiff in such amount as determined to be proper by the court pursuant to subsection (e) of section 8-502, Idaho Code, to the effect that, if the defendant recover judgment, or if the attachment be wrongfully issued, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment not exceeding the sum specified in the undertaking; and that if the attachment is discharged on the ground that the plaintiff was not entitled thereto under section 8-501, Idaho Code, the plaintiff will pay all damages which the defendant may have sustained by reason of the attachment, not exceeding the sum specified in the undertaking. No such security shall be required of the state or of any political subdivision, or of an officer or agency thereof.
(b) Within two (2) days after issuing such writ and delivering it to the proper officer, the clerk must post at the front door of the courthouse and cause to be published in some newspaper published in the county, if there be one, or otherwise in a newspaper of general circulation in the county, a notice, setting out the title of the cause and the fact that an attachment has been issued against the property of the defendant. Such notice shall be kept posted at least ten (10) days and shall be published, if in a weekly paper, in three (3) issues thereof, and if any other than a weekly paper, in at least six (6) issues. Any creditor of the defendant, who, within thirty (30) days after the first posting and publication of such notice, shall commence and thereafter diligently prosecute to final judgment his action for his claim against the defendant shall share pro rata with the attaching creditor in the proceeds of defendant’s property where there is not sufficient to pay all judgments in full against him.
[(8-503) C.C.P. 1881, sec. 320; R.S., sec. 4304; am. 1895, p. 75, sec. 1; reen. 1889, p. 250, sec. 1; reen. R.C., & C.L., sec. 4304; C.S., sec. 6781; am. 1921, ch. 206, sec. 1, p. 416; I.C.A., sec. 6-503; am. 1974, ch. 307, sec. 4, p. 1793.]
The writ of attachment shall be directed to the sheriff of any county in which property of such defendant may be located, and must require him to attach and safely keep all the property of such defendant, within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff’s demands, the amount of which must be stated in conformity with the complaint. If issued prior to hearing under paragraph (2) or (3) of subsection (c), section 8-503, Idaho Code, the writ shall describe the specific property to be levied upon. If the court has directed the order in which the writ shall be levied upon different assets of the defendant under subsection (e), section 8-502, Idaho Code, the writ shall set forth such directions. There shall be attached to the writ a copy of the written undertaking filed by the plaintiff, and such writ shall inform the defendant that he has the right to except to the sureties upon such undertaking or to file a written undertaking for the redelivery of such property, as provided in section 8-506C, Idaho Code. Several writs may be issued at the same time to the sheriffs of different counties, and the plaintiff may have other writs of attachment as often as he may require at any time before judgment, without further notice to the defendant.
[(8-504) C.C.P. 1881, sec. 321; R.S., R.C., & C.L., sec. 4305; C.S., sec. 6782; I.C.A., sec. 6-504; am. 1974, ch. 307, sec. 5, p. 1793.]
The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profit thereon and all debts due such defendant, and all other property in this state of such defendant not exempt from execution, may be attached, and if judgment be recovered, be sold to satisfy the judgment and execution.
[(8-505) C.C.P. 1181, sec. 322; R.S., R.C., & C.L., sec. 4306; C.S., sec. 6783; I.C.A., sec. 6-505.]
The sheriff to whom the writ is directed and delivered must execute the same without delay, and if the undertaking mentioned in section 8-506C, Idaho Code, be not given, as follows:
Real property standing upon the records of the county in the name of the defendant must be attached by filing with the recorder of the county a copy of the writ, together with a description of the property attached and a notice that it is attached.
Real property or an interest therein belonging to the defendant and held by any other person, or standing on the records of the county in the name of any other person, must be attached by filing with the recorder of the county a copy of the writ, together with a description of the property, and a notice that such real property and any interest of the defendant therein, held by or standing in the name of such other person (naming him), are attached. The recorder must index such attachment, when filed, in the names of both, of the defendant and of the person by whom the property is held or in whose name it stands on the records.
Personal property capable of manual delivery must be attached by taking it into custody.
Stock or shares, or interest in stock or shares, of any corporation or company must be attached by leaving with the president or other head of the same, or the secretary, cashier or other managing agent thereof, a copy of the writ and a notice stating that the stock or interest of the defendant is attached, in pursuance of such writ; provided, that securities as defined in section 28-8-102, Idaho Code, must be attached as provided in section 28-8-112, Idaho Code.
Debts and credits and other personal property not capable of manual delivery must be attached by leaving with the person owing such debts, or having in his possession or under his control such credits or other personal property, or with his agent, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits or other personal property in his possession or under his control, belonging to the defendants, are attached in pursuance of such writ.
[(8-506) C.C.P. 1881, sec. 323; R.S., & R.C., sec. 4307; am. 1911, ch. 162, sec. 1, p. 559; reen. C.L., sec. 4307; C.S., sec. 6784; I.C.A., sec. 6-506; am. 1974, ch. 307, sec. 6, p. 1793; am. 1998, ch. 243, sec. 1, p. 802.]
Personal property subject to a security interest, a defendant’s equity of redemption in personal property and a defendant’s interest in a real estate mortgage or deed of trust or as secured party under a security agreement may be attached by the following methods, and no other:
(a) Personal property capable of manual delivery may be attached by taking possession, provided all secured parties with a perfected security interest therein under the Idaho uniform commercial code consent thereto in writing, and the attachment shall be subject to the rights of any secured party under a perfected security agreement, but otherwise would be to the same effect and in the same manner as if the property were not subject to the security agreement.
(b) If any secured party with a perfected security interest does not consent in writing that the sheriff take possession of the personal property, the attaching creditor must pay or tender to the secured party the amount due on the security agreement before the officer may take the property into possession. The attaching creditor upon so redeeming shall be subrogated to the rights of the secured party under the security agreement, and the secured party shall, upon payment or tender assign the security agreement, note or notes so paid, and any filed financing statements to the attaching creditor. Upon any sale by judicial proceedings, any amounts owing to the attaching creditor on the security agreement so redeemed, with lawful interest thereon, shall first be paid to the attaching creditor.
(c) If the attaching creditor so elects and instructs the sheriff, the equity of redemption of the defendant in the personal property subject to a perfected security agreement shall be attached. Such attachment is made by serving upon the secured party, upon the defendant, and upon the person in possession of the property, if other than the defendant or secured party, if said parties can be found within the county where the property is situated, a copy of the writ of attachment, together with a notice signed by the sheriff, describing the property attached, giving the name of the secured party, and stating the interest of the defendant in the property attached, and by causing the notice to be filed in the office where a security agreement or financing statement on said property should be filed to perfect the security according to the Idaho uniform commercial code or other applicable law. The sheriff shall make the filing by mail if in an office outside his county, and shall also file with the notice in any office where a financing statement should be filed for the property, a financing statement describing the property attached, the prior security agreement, and signed by the attaching creditor or his agent as secured party and for the defendant as debtor by the sheriff. The filing officer shall receive and file the financing statement and index the same pursuant to part 5, chapter 9, title 28, Idaho Code. Service and filing as above provided shall operate as an attachment of the property described in the notice, subject to the prior rights of the secured party under the security agreement; possession of the property shall not be taken by the sheriff. Compliance with the foregoing is constructive notice to the world of the attachment. Provided, however, that this section shall not be constructive notice to a bona fide purchaser for value of any motor vehicle who has actual or constructive possession of the vehicle and who has relied on the certificate of title for determination by said purchaser as to secured parties shown thereon; nothing in this section shall relieve any person from complying with section 49-504, Idaho Code.
When the sale of such property attached under this subsection (c) is made on writ of execution obtained by such creditor, the proceeds must be applied as in the case of any other execution sale. The purchaser at any such sale acquires all title and rights of the judgment debtor in the property sold, as of the time the attachment was levied, subject to the perfected security agreement including all liens if any thereunder, securing obligations to be created after the security agreement was made in cases where such obligations have actually been created, and are by law entitled to priority over attaching creditors, and is entitled to the possession of such property subject, however, to the rights of the secured party.
Any transfer of encumbrance of the attached interest of the debtor-defendant is void as against the attaching creditor, but this provision shall not be construed as forbidding or invalidating any transfer or disposition of the property lawfully made pursuant to the prior security agreement, or any other right exercised or acquired thereunder.
(d) Any interest of the defendant as mortgagee of a real estate mortgage or beneficiary of a trust deed on real estate whether held directly or as an assignee, may be attached. The sheriff must record with the county recorder where the real property is located a copy of the writ along with a notice in writing, naming the defendant, describing the real property, and identifying the recording information on the real estate mortgage or trust deed, and stating that the defendant’s interest therein is attached, and by serving copies of the notice and writ upon the defendant and upon the mortgagor of the mortgage or trustor of the trust deed if they can be located within the county where the property is located. The recorder shall index the same as an assignment of the defendant’s interest in the mortgage or deed of trust, and it shall be constructive notice to the world of the attachment. The attachment shall be subject to the rights of a holder in due course of a note or notes secured by the mortgage or trust deed, whether acquired before or after the attachment.
(e) Any interest of the defendant as secured party of a security agreement, whether held directly or as an assignee, shall be attached by the sheriff filing with the filing office where the security agreement or financing statement pursuant thereto is or should by law be filed, a copy of the writ along with a notice in writing, naming the defendant, describing the property listed in the financing statement or filed security statement, identifying the parties to the security agreement, and stating that the defendant’s interest therein is attached. The sheriff shall serve a copy of the notice and writ upon the defendant and upon the debtor under the security agreement, if they can be located within the county where the property is located. The sheriff may file the copy of the writ or notice by mail if the filing officer is outside the county. The filing officer shall index the same as an assignment of the defendant’s interest in the security agreements, and it shall be constructive notice to the world. The attachment shall be subject to the rights of a holder in due course of a note or notes secured by the security agreement, whether acquired before or after the attachment.
[I.C., sec. 8-506A, as added by 1969, ch. 461, sec. 1, p. 1294; am. 1975, ch. 171, sec. 1, p. 463; am. 1988, ch. 265, sec. 560, p. 855; am. 2001, ch. 208, sec. 26, p. 825.]
The sheriff shall, without delay serve upon the defendant a copy of the writ of attachment and written undertaking by delivering the same to him personally, if he can be found, or to his agent from whom possession of the property is taken; or, if neither can be found, by leaving them at the issued place of abode of either with some person of suitable age and discretion; or, if neither have a place of abode, by mailing them to their last known address.
[I.C., sec. 8-506B, as added by 1974, ch. 307, sec. 7, p. 1793.]
At any time the defendant may retain or require the return of all or any portion of the property upon filing with the court a written undertaking executed by two (2) or more sufficient sureties, to the effect that they are bound in an amount sufficient to satisfy the plaintiff’s claims, besides costs, or in an amount equal to the value of the specific property sought to be retained or returned which has been or is about to be attached. At the time of filing such undertaking, the defendant shall serve upon the plaintiff or his attorney a notice of filing such undertaking, to which a copy of such undertaking shall be attached; and shall cause proof of service thereof to be filed with the court.
If such undertaking is in an amount sufficient to satisfy the plaintiff’s claims, besides costs, proceedings thereunder shall terminate, unless exception is taken to such sureties. If, at the time of filing of such undertaking in an amount sufficient to satisfy the plaintiff’s claims, plus costs, the property shall be in the custody of the sheriff, such property, together with all proceeds of the sales thereof, shall be returned to the defendant five (5) days after service of the notice of filing such undertaking upon plaintiff or his attorney, unless exception is taken to such sureties.
If such undertaking is filed in an amount equal to the value of the specific property sought to be retained or returned and the court has previously determined the proper sum to be specified in such undertaking as provided in subsection (e), section 8-502, Idaho Code, the sheriff shall not execute the writ as to the specific property covered by such undertaking. If the property shall be in the custody of the sheriff, the property shall be returned to defendant five (5) days after service of the notice of filing such undertaking upon plaintiff or his attorney unless exception is taken to such sureties. If such undertaking filed in an amount equal to the value of the property sought to be returned and the court has not previously determined the proper amount to be specified in the undertaking pursuant to subsection (e), section 8-502, Idaho Code, the plaintiff may within four (4) days after service of the notice of filing give written notice to the court, the defendant, and the sheriff, if such property shall then be in the custody of the sheriff, that he objects to the amount of the undertaking. If he fails to do so, he is deemed to have waived all objections thereto and the sheriff shall not execute the writ as to the specific property covered by such undertaking, or if such property shall then be in the custody of the sheriff, it shall be returned to the defendant five (5) days after service of the notice of filing such undertaking upon plaintiff or his attorney. If the plaintiff objects to the amount of such undertaking, the court shall set the matter for hearing and upon examination of the evidence and testimony submitted and such other evidence or testimony as the judge may thereupon require, the court shall determine the proper amount to be specified in such undertaking. If the amount of the undertaking filed be found sufficient, or if the defendant file a new undertaking in such amount as fixed by the court, the property shall be returned to the defendant, unless exception is taken to such sureties on any new undertaking filed by defendant.
[I.C., sec. 8-506C, as added by 1974, ch. 307, sec. 8, p. 1793.]
The qualification of sureties under any written undertaking referred to in this chapter shall be such as prescribed by the code in respect to bail upon an order of civil arrest. Either party may, within two (2) days after service of an undertaking or notice of filing an undertaking under the provisions of this chapter, give written notice to the court, the other party and the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When a party excepts, the other party’s sureties shall justify on notice within not less than two (2), nor more than five (5) days, in like manner as upon bail upon civil arrest. If any of the defendant’s property be in the custody of the sheriff, he shall retain custody thereof until the justification is completed or waived or fails. If the sureties for the plaintiff’s undertaking, filed pursuant to section 8-503, Idaho Code, fail to justify, the writ of attachment must be vacated and the sheriff shall return the property to the defendant. If the sureties for the defendant’s undertaking, filed pursuant to section 8-506C, Idaho Code, fail to justify, the sheriff shall proceed as if no such undertaking had been filed. If the sureties justify or the exception is waived, the sheriff shall proceed as if no such exception had been filed.
[I.C., sec. 8-506D, as added by 1974, ch. 307, sec. 9, p. 1793.]
To the extent that the provisions of chapter 7, title 11, Idaho Code, are not inconsistent with the provisions of this chapter, such provisions shall apply to the attachment process.
[8-507, added 2017, ch. 303, sec. 3, p. 800.]
The sheriff must make a full inventory of the property attached, and return the same with the writ. To enable him to make such return as to the debts and credits attached, he must request, at the time of service, the party owing the debt or having the credit to give him a memorandum, stating the amount and description of each, and if such memorandum be refused, he must return the fact of refusal with the writ. The party refusing to give the memorandum may be required to pay the cost of any proceedings taken for the purpose of obtaining information respecting the amounts and description of such debt or credit.
[(8-524) C.C.P. 1881, sec. 327; R.S., R.C., & C.L., sec. 4311; C.S., sec. 6802; I.C.A., sec. 6-524.]
If any of the property attached be perishable, the sheriff must sell the same in the manner in which such property is sold on execution. The proceeds and other property attached by him must be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment recovered previous to issuing of the attachment. Debts and credits attached may be collected by him if the same can be done without suit. The sheriff’s receipt is a sufficient discharge for the amount paid.
[(8-525) C.C.P. 1881, sec. 328; R.S., R.C., & C.L., sec. 4312; C.S., sec. 6803; I.C.A., sec. 6-525.]
Whenever property has been taken by an officer under a writ of attachment, and it is made to appear satisfactory to the court, or a judge thereof, that the interests of the parties to the action will be subserved by a sale thereof, the court or judge may order such property to be sold in the same manner as property is sold under an execution, and the proceeds to be deposited in the court to abide the judgment in the action. Such an order can be made only upon notice to the adverse party or his attorney, in case such party has been personally served with a summons in the action.
[(8-526) C.C.P. 1881, sec. 329; R.S., R.C., & C.L., sec. 4313; C.S., sec. 6804; I.C.A., sec. 6-526.]
If any personal property attached, garnished or executed upon be claimed by a third person as his property, or by the defendant as exempt property, the same rules shall prevail as to the contents and making of said claim, and as to the holding of said property, as in the case of a claim after levy upon execution, as provided in section 11-203, Idaho Code.
[(8-527) C.C.P. 1881, sec. 330; R.S. & R.C., sec. 4314; am. 1913, ch. 109, sec. 11, p. 430; reen. C.L., sec. 4314; C.S., sec. 6805; I.C.A., sec. 6-527; am. 1939, ch. 12, sec. 1, p. 28; am. 1991, ch. 165, sec. 7, p. 403.]
If judgment be recovered by the plaintiff, the sheriff must satisfy the same out of the property attached by him which has not been delivered to the defendant, or a claimant as hereinbefore provided, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it be sufficient for that purpose:
By paying to the plaintiff the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment.
If any balance remain due, and an execution shall have been issued on the judgment, he must sell, under the execution, so much of the property, real or personal as may be necessary to satisfy the balance, if enough for that purpose remain in his hands. Notices of the sale must be given, and the sales conducted as in other cases of sales on execution.
[(8-528) C.C.P. 1881, sec. 331; R.S., R.C., & C.L., sec. 4315; C.S., sec. 6806; I.C.A., sec. 6-528.]
If, after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits collected by him, deducting his fees, to the payment of the judgment, any balance shall remain due, the sheriff must proceed to collect such balance, as upon an execution in other cases. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must deliver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment.
[(8-529) C.C.P. 1881, sec. 332; R.S., R.C., & C.L., sec. 4316; C.S., sec. 6807; I.C.A., sec. 6-529.]
If the execution be returned unsatisfied in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section 8-506C, Idaho Code, or he may proceed as in other cases upon the return of an execution.
[(8-530) C.C.P. 1881, sec. 333; R.S., R.C., & C.L., sec. 4317; C.S., sec. 6808; I.C.A., sec. 6-530; am. 1974, ch. 307, sec. 10, p. 1793.]
If the defendant recover judgment against the plaintiff, any undertaking received in the action, all the proceeds of sales and money collected by the sheriff, and all the property attached remaining in the sheriff’s hands, must be delivered to the defendant or his agent. The order of attachment shall be discharged, and the property released therefrom.
[(8-531) C.C.P., 1881, sec. 334; R.S., R.C., & C.L., sec. 4318; C.S., sec. 6809; I.C.A., sec. 6-531.]
The defendant may also at any time, either before or after the release of the attached property, or before any attachment shall have been actually levied, apply on motion upon reasonable notice to the plaintiff, to the court in which the action is brought, or to the judge thereof, that the writ of attachment be discharged on the ground that the same was improperly or irregularly issued.
[(8-534) C.C.P. 1881, sec. 337; R.S., R.C., & C.L., sec. 4321; C.S., sec. 6812; I.C.A., sec. 6-534.]
If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the attachment was made.
[(8-535) C.C.P. 1881, sec. 338; R.S., R.C., & C.L., sec. 4322; C.S., sec. 6813; I.C.A., sec. 6-535.]
If upon such application it satisfactorily appears that the writ of attachment was improperly or irregularly issued it must be discharged; provided that such attachment shall not be discharged if at or before the hearing of such application, the writ of attachment, or the affidavit, or undertaking upon which such attachment was based, shall be amended or made to conform to the provisions of this chapter.
[(8-536) R.S., R.C., & C.L., sec. 4323; C.S., sec. 6814; am. 1921, ch. 160, sec. 1, p. 354; I.C.A., sec. 6-536.]
The sheriff must return the writ of attachment with the summons, if issued at the same time; otherwise within twenty (20) days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto; and whenever an order has been made discharging or releasing an attachment upon real property, a certified copy of such order may be filed in the office of the county recorder in which the notice of attachment has been filed, and be indexed in like manner.
[(8-537) C.C.P. 1881, sec. 340; R.S., R.C., & C.L., sec. 4324; C.S., sec. 6815; I.C.A., sec. 6-537.]
Whenever in any action, real estate has been levied upon under writs, either of attachment or execution, and the lien of the writ has in any manner been lost or destroyed, the court out of which the writ issued or the judge thereof, may, on application by any person interested, make an order discharging said lien, and the order or a certified copy thereof may be filed in the office of the county recorder in which the notice of the levy has been filed, and indexed in like manner as said notice.
[(8-538) 1895, p. 14, sec. 1; reen. 1899, p. 233, sec. 1; reen. R.C. & C.L., sec. 4325; C.S., sec. 6816; I.C.A., sec. 6-538.]
Whenever in any action, real estate has been levied upon under writs, either of attachment or execution, such levy shall be a lien upon all real property for a period of two (2) years after the date of levy unless sooner released or discharged in accordance with law, or by dismissal of the action or by the recording with the recorder of an abstract of judgment in the action. At the expiration of two (2) years, the lien shall cease and any proceeding or proceedings against the property under the lien shall be barred; provided, that upon motion of a party to the action, made not less than five (5) nor more than sixty (60) days before the expiration of said period of two (2) years, the court in which the action is pending may extend the time of said lien for a period not exceeding two (2) years from the date on which the original lien would expire, and the lien shall be extended for the period specified in the order upon the recording before the expiration of the existing lien, of a certified copy of the order with the recorder of the county in which the real property attached is situated. The lien may be extended from time to time in the manner herein prescribed.
[I.C., sec. 8-539, as added by 1965, ch. 93, sec. 1, p. 171.]
In all proceedings brought under this chapter, all courts in which such actions are pending, shall, upon request of any party thereto, give such actions precedence over all other civil actions, except action to which special precedence is otherwise given by law, in the matter of setting the same for hearing or trial, or in hearing or trial thereof, to the end that all such actions shall be quickly heard and determined; provided, however, that hearing upon a motion to contest a claim of exemption or third party claim as provided in section 11-203, Idaho Code, shall be set for a date within not less than five (5) nor more than twelve (12) days after the filing of the motion and such hearing may be continued only at the request of the defendant.
[I.C., sec. 8-540, as added by 1974, ch. 307, sec. 13, p. 1793; am. 1991, ch. 165, sec. 8, p. 403.]
A receiver may be appointed by the court in which an action is pending or has passed to judgment, or by the judge thereof:
In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or jointly interested in any property or fund, on the application of the plaintiff or of any party whose right to, or interest in, the property, or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.
In an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt.
After judgment to carry the judgment into effect.
After judgment to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or in proceedings in aid of execution, when an execution has been returned unsatisfied, or when the judgment debtor refuses to apply his property in satisfaction of the judgment.
In the case where a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.
5-A. A receiver for an irrigation district may be appointed in an action brought by bondholders or other creditors, water users, and/or land owners of such irrigation district, where it is made to appear to the satisfaction of the court that such irrigation district has failed to elect its officers, or such officers have failed to qualify or are not acting, or such district has ceased to function, or has been abandoned, or is insolvent, or is in imminent danger of insolvency, or is being grossly mismanaged, or has been or ought to be dissolved, and there are rights or properties of such irrigation district which are threatened to become lost or dissipated, that should be preserved for the benefit of its creditors or other parties of interest in such irrigation district.
[(8-601) C.C.P. 1881, sec. 341; R.S. & R.C., sec. 4329; am. 1909, sec. 1, p. 26; reen. C.L., sec. 4329; C.S., sec. 6817; am. 1929, ch. 43, sec. 1, p. 52; I.C.A., sec. 6-601.]
(1) At any time after the filing for record of a notice of default and election to sell real property under a power of sale contained in a deed of trust, in accordance with the provisions of section 45-1505(3), Idaho Code, the trustee or beneficiary of the deed of trust may apply to the district court for the county in which the property or any part of the property is located for the appointment of a receiver of such property and of any personal property subject to the deed of trust or to related security documents.
(2) A receiver may be appointed, pursuant to the provisions of subsection (1) of this section, or of section 8-601, Idaho Code, where it appears that personal property subject to the deed of trust or mortgage, or to related security documents, is in danger of being lost, removed, concealed, materially injured or destroyed, that real property subject to the deed of trust or mortgage is in danger of substantial waste or that the income therefrom is in danger of being lost, or that the property is or may become insufficient to discharge the debt which it secures.
[8-601A, added 1993, ch. 280, sec. 1, p. 949.]
Upon the dissolution of any corporation the district court of the county in which the corporation carries on its business or has its principal place of business, on application of any creditor of the corporation, or of any member or stockholder thereof, may appoint one (1) or more persons to be receivers or trustees of the corporation, to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation, and to pay the outstanding debts thereof, and to divide the moneys and other property that shall remain over, among the stockholders or members.
[(8-602) C.C.P. 1881, sec. 342; R.S., R.C., & C.L., sec. 4330; C.S., sec. 6818; I.C.A., sec. 6-602.]
No party, or attorney, or person interested in an action, can be appointed receiver therein, without the written consent of the parties filed with the clerk. If a receiver be appointed upon an ex parte application, the court, before making the order, may require from the applicant an undertaking, with sufficient sureties, in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver and the entry by him upon his duties, in case the applicant shall have procured such appointment wrongfully, maliciously or without sufficient cause; and the court may, in its discretion, at any time after said appointment, require an additional undertaking.
[(8-603) C.C.P. 1881, sec. 343; R.S., R.C., & C.L., sec. 4331; C.S., sec. 6819; I.C.A., sec. 6-603.]
Before entering upon his duties the receiver must be sworn to perform them faithfully, and with one (1) or more sureties, approved by the court or judge, execute an undertaking, to such person and in such sum as the court or judge may direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the court therein.
[(8-604) C.C.P. 1881, sec. 344; R.S., R.C., & C.L., sec. 4332; C.S., sec. 6820; I.C.A., sec. 6-604.]
The receiver has, under the control of the court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize.
[(8-605) C.C.P. 1881, sec. 345; R.S., R.C., & C.L., sec. 4333; C.S., sec. 6821; I.C.A., sec. 6-605.]
Funds in the hands of a receiver may be invested upon interest, by order of the court; but no such order can be made except upon the consent of all the parties to the action.
[(8-606) C.C.P. 1881, sec. 346; R.S., R.C., & C.L., sec. 4334; C.S., sec. 6822; I.C.A., sec. 6-606.]
When it is admitted by the pleading, or shown upon the examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same, upon motion, to be deposited in court or delivered to such party, upon such conditions as may be just, subject to the further direction of the court.
[(8-701) C.C.P. 1881, sec. 347; R.S., R.C., & C.L., sec. 4339; C.S., sec. 6823; I.C.A., sec. 6-701.]
If the money is deposited in court it must be paid to the clerk, who must deposit it with the county treasurer, by him to be held subject to the order of the court. For the safe keeping of the money deposited with him the treasurer is liable on his official bond.
[(8-702) C.C.P. 1881, sec. 348; R.S., R.C., & C.L., sec. 4340; C.S., sec. 6824; I.C.A., sec. 6-702.]
Whenever, in the exercise of its authority, a court has ordered the deposit or delivery of money, or other thing, and the order is disobeyed, the court, besides punishing the disobedience, may make an order requiring the sheriff to take the money, or thing, and deposit or deliver it in conformity with the direction of the court.
[(8-703) C.C.P. 1881, sec. 349; R.S., R.C., & C.L., sec. 4341; C.S., sec. 6825; I.C.A., sec. 6-703.]
In any proceeding where the court has ordered either or both parents to pay any amount for the support of a minor child, the court may order either parent or both parents to assign such sum as the court may determine to be equitable to the county clerk, probation officer, or other officer of the court or county officer designated by the court to receive such payment, that portion of salary or wages of either parent due in the future to apply on the amount ordered by the court for the support and maintenance of the minor child. Such order shall be binding upon an employer upon the service of a copy of such order upon such employer and until further order of the court. Any such order may be modified or revoked at any time by the court. Any such assignment made pursuant to court order shall have priority as against any attachment, execution, or other assignment, unless otherwise ordered by the court.
[8-704, added 1977, ch. 90, sec. 1, p. 184.]
In any proceeding where the court has ordered a parent or custodian to pay any amount for the care, support or maintenance of a child adjudged to be within the purview of chapter 5, title 20, Idaho Code, and through the adjudication has rendered a liability upon the parent or custodian to pay damages or to pay for the child’s support and care, the following procedure may be utilized for collection. The court may order the parent or custodian to assign a sum as the court may determine to be equitable or as may otherwise be provided by statute or contract to the county clerk, probation officer or other office of the court or county officer designated by the court to receive such payment. The assignment shall be that portion of salary or wages of the parent or custodian the court deems would be due in the future to apply on the amount ordered by the court for the care, support or maintenance of the delinquent child or for breach of contract caused by the child’s delinquency. The order shall be binding upon an employer and until further order of the court. Any such order may be modified or revoked at any time by the court. Any such assignment made pursuant to court order shall have priority as against any attachment, execution or other assignment, unless otherwise ordered by the court. All sums collected pursuant to the provisions of this section shall be remitted as may be provided by law.
[8-705, added 1989, ch. 155, sec. 15, p. 395; am. 2004, ch. 23, sec. 1, p. 26; am. 2012, ch. 257, sec. 1, p. 709.]
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