Ark. Code Ann. § 16-110-106 (2020)
Order of attachment
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An order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in § 16-110-101(1), where there is filed in his or her office an affidavit of the plaintiff or of someone in his or her behalf, showing:
- The nature of the plaintiff's claim;
- That it is just;
- The amount which the affiant believes the plaintiff ought to recover; and
- The existence in the action of one (1) of the grounds for an attachment enumerated in § 16-110-101(1). In the case mentioned in § 16-110-101(2), where it is shown by affidavit or by the return of the county sheriff or other officer upon the order for the delivery of the property claimed, the facts mentioned in § 16-110-101(2) must exist.
- When the return by the proper officer upon a summons against a defendant states that he or she has left the county to avoid the service of the summons or has concealed himself or herself therein for that purpose, it shall be equivalent to the statement of the fact in the affidavit mentioned in subdivision (a)(1) of this section.
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An order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in § 16-110-101(1), where there is filed in his or her office an affidavit of the plaintiff or of someone in his or her behalf, showing:
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- The affidavit or grounds of attachment, may be amended so as to embrace any grounds of attachment that may exist up to, and until, the final judgment upon the attachments. If the amendment embraces grounds existing at the time of the commencement of the proceedings, and is sustained upon such grounds, the lien created by the suing out or levying of the original attachment shall be held to be good.
- However, if the amendments embrace new grounds not existing at the time of suing out the original attachment and the attachment shall be sustained on the new grounds only, the lien shall exist on the property, levied upon from the filing of the original attachment.
- A general order sustaining the attachment without designating the grounds upon which it is sustained shall be equivalent to sustaining the order on grounds that existed at the time the attachment was sued out.
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- The order of attachment shall be directed and delivered to the county sheriff or other officer, with as many copies thereof as the plaintiff may direct.
- It shall require him or her to attach and safely keep the property of the defendant in his or her county not exempt from execution, or so much thereof as will satisfy the plaintiff's claim specified in his or her affidavit, which shall be stated in the order and the probable costs of the action, not exceeding thirty dollars ($30.00). It shall also require him or her to summon the garnishees to answer in the action on the return day of the order and to make due return thereof.
- The return day of the order of attachment when issued at the commencement of the action shall be the same as that of the summons. When the order of attachment is issued afterward, the commencement of the action may be another day in term at the option of the plaintiff.
History. Civil Code, §§ 217, 218, 220, 222; Acts 1871, No. 48, § 1 [217], p. 219; C. & M. Dig., §§ 496, 497, 499, 501; Pope's Dig., §§ 533, 534, 536, 538; A.S.A. 1947, §§ 31-105 — 31-107, 31-110.
Publisher's Notes. As to the constitutionality of this section, see case notes for McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).
Case Notes
Constitutionality.
Absent a judge's participation or supervision, there is a significant risk that a writ of attachment will be issued even though the statutory attachment procedures have not been met; this expressly overrules Springdale Farms, Inc. v. McIlroy Bank & Trust, 281 Ark. 371, 663 S.W.2d 936 (1984), which held that the issue of prejudgment attachments by the clerk met the “safeguards test” and satisfied due process. McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).
The lack of prompt notice to the debtor of a prejudgment attachment and of possible state or federal exemptions, and the lack of a prompt hearing at which the debtor can claim exemptions, leaves the prejudgment attachment provisions inadequate to prevent an erroneous deprivation of property in violation of due process. McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).
In General.
Where affidavit and complaint were marked “filed” and the bond “approved” and writs issued and delivered to the officer before he took the papers to the clerk's office, which he did immediately after these acts and deposited them in their proper place, this was a sufficient compliance with this section to make the process good. People's Sav. Bank & Trust Co. v. Batchelder Egg Case Co., 51 F. 130 (8th Cir. 1892).
Affidavits.
The defendant could not object in the Arkansas Supreme Court for the first time, that the affidavit for the attachment was insufficient; such objection had to be first made in the circuit court. Fletcher v. Menken, 37 Ark. 206 (1881).
An affidavit for attachment improperly signed, or not signed at all, or without the jurat of the officer is defective; however, but such defects are amendable. Fortenheim v. Claflin, 47 Ark. 49, 14 S.W. 462 (1885).
—Amendment.
An affidavit for an attachment may be amended by inserting an omitted fact existing when it was made before judgment to quash for the insufficiency. Rogers v. Cooper, 33 Ark. 406 (1878); Nolen v. Royston, 36 Ark. 561 (1880).
An affidavit in the court of a justice of the peace may be amended after appeal in the circuit court if the amendment contains no cause for the attachment not existing at the commencement of the suit. Sherrill v. Bench & Bro., 37 Ark. 560 (1881).
An order of attachment not running in the name of the state is amendable, and it should be amended by the court of its own motion or be considered amended. Kahn v. Kuhn, 44 Ark. 404 (1884).
On appeal, an affidavit in attachment will not be considered amended to conform to the proof of a new ground of attachment not existing at the time the original attachment was sued out when no offer to amend was made at the trial. Blass v. Lee, 55 Ark. 329, 18 S.W. 186 (1892); Hanger v. Ives, 69 Ark. 52, 62 S.W. 68 (1901).
An affidavit may be amended before the trial. Sellers v. Bowie, 183 Ark. 726, 38 S.W.2d 560 (1931).
—Contents.
The affidavit must be positive; if made upon belief only, the attachment may be quashed at the instance of the defendant. Sannoner v. Jacobson, 47 Ark. 31, 14 S.W. 458 (1885).
An affidavit made upon belief is not a nullity, but is amendable. Landfair v. Lowman, 50 Ark. 446, 8 S.W. 188 (1887).
Complaint.
There can be no attachment without a complaint, and there should be both a complaint and an affidavit, but both may be included in the affidavit if it contains all the essentials of both. Sannoner v. Jacobson, 47 Ark. 31, 14 S.W. 458 (1885); Lehman v. Lowman, 50 Ark. 444, 8 S.W. 187 (1887).
Court acquired jurisdiction to issue writ of attachment although complaint was not verified as it is not required that both complaint and affidavit be verified. Smith v. Moschetti, 213 Ark. 968, 214 S.W.2d 73 (1948).
Contents of Order.
An order of attachment and a writ of summons may be embodied in the same writ. Weil & Bros. v. Kittay, 40 Ark. 528 (1883); Rice, Stix & Co. v. Dale & Richardson, 45 Ark. 34 (1885).
Cited: Hackworth v. First Nat'l Bank, 265 Ark. 668, 580 S.W.2d 465 (1979); Sun Marine Terminals v. Tosco Corp., 287 Ark. 233, 697 S.W.2d 901 (1985); Stephens v. Walker, 743 F. Supp. 670 (W.D. Ark. 1990); Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992).