Page:United States Statutes at Large Volume 47 Part 1.djvu/972

 948 P att achmen roceedin ts. gstoreleeae Requ iremen ts by court for release of at- tachment. Motion to discha rge attachment ; grounds. Motion made on af- fidavit. When writ must be igcharged. &hen returned. 72d C ONGRESS. SESS . II. CH. 127 . FE BRU ARY 27, 1933, agent, the order of attachment be discharged, and the pr oper ty released therefrom. SEC. 238: PROCEEDINGS TO REL EAS E A TTA CHM ENT S. -When ever any defendant has appeared in the action, such defendant may, upon reasonable noti ce to the plaintif f, apply to the d istrict court, or to the judge thereof, for an order to discharge the attachment wholly or in part ; and upon the execution of the undertaking mentioned in sec. tion 555, an order may be made releasing from the operation of the attachment, any or all of the property of such defendant attached and all of the property so released and all of the proceeds of the sales thereof, must be delivered to such defendant upon the justifi- cation of the sureties on the undertaking, if required by the plaintiff. Such justification must take place within five days after the notice of the filing of such undertaking. SEC. 239. REQUIREMENTS BY COURT FOR RELEASE OF ATTACHMENT.- Before making such order, the court or judge must require an under- taking on behalf of such defendant, by at least two sureties, to the effect that in case the plaintiff recovers judgment in the action again st th e defe ndant, by whom or in whose beha lf suc h und ertak ing shall be given, such defendant will, on demand, redeliver the attache d proper ty so rel eased to the pro per offi cer, to be appli ed to the payment of any judgment in such action against said defendant, or in default thereof, that such defendant and sureties will, on demand, pay to the plaintiff the full value of the property released not exceeding the amount of such judgment against such defendant. The court or judge making such order may fix the sum for which the undertaking must be executed, and if necessar in fixing such sum to know the value of the property release the same may be appraised by one or more disinterested persons, to be appointed for that purpose. The sureties may be required to justify before the court or fudge and the property attached can not be released from the attachment without their justification if the same is required. SEC. 240. WHEN A MOTION TO DISCHARGE ATTACHM ENT MA Y B E MADE, AND UPON WHAT GROUNDS -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, or to the judge thereof, that the writ of attachment be discharged on the ground that the same was improperly or irregularly issued. SEC. 241. WHEN MOTION MADE ON AFFIDAVIT, IT MAY BE OPPOSED BY AFFIDAVIT.-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 attach- me nt was made. SEC. 242. WHEN WRIT MUST BE DISCHARGED.-If upon such applica- tion, it satisfactorily appears that the writ of a tta chm ent was improperly or irregularly issued it must be discharged- p rovi ded 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 and made to conform to the provisions of this subchapter. SEC. 243. WHEN WRIT TO BE RETURNED. The marshal must return the writ of attachment with the summons, if issued at the same time otherwise, within twenty days after its receipt, with a certificate- of his proceedings indorsed thereon or attached thereto ; and whe neve r 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 registrar of property.