taken in the course of the proceedings, and which have not been fully satisfied; except an undertaking, given by the defendant, upon the discharge of property. He must also deliver a written assignment, duly acknowledged, of each undertaking, so delivered, and of each other instrument, to which the defendant is thus entitled, an assignment of which is necessary to perfect or protect the defendant's title thereto. The defendant must also, but upon his own application only, be substituted in place of the sheriff, or the sheriff and the plaintiff jointly, in an action brought as prescribed in this title; but the court or judge may impose, as a condition of granting the order of substitution, such terms as justice requires, with respect to indemnity and payment of expenses. The defendant's rights, with respect to property attached and not disposed of, and an undertaking, or other instrument, to which he is thus entitled. are the same as those of the sheriff while the warrant was still in force, except where his rights are specially defined or regulated by law. § 711. Cancelling notice attaching real property. At any time after the warrant of attachment has been vacated or annulled, or the attachment has been discharged as to real property attached, the court may, in its discretion, upon the application of any person aggrieved, and upon such notice as it deems just, direct that any notice. filed for the purpose of attaching the property, be cancelled of record, by the clerk of the county where it is filed and recorded. The cancellation must be made by a note, to that effect, on the margin of the record; referring to the order; and, unless the order is entered in the same clerk's office a certified copy thereof must, at the same time, be filed therein. From Co. Proc. § 132. Am'd by ch. 416 of 1877. See § 1674. 712. When sheriff to return warrant and his proceedings. Where a warrant of attachment has been vacated or annulled, the sheriff must forthwith file, in the clerk's office, the warrant, with a return of his proceedings thereon. Upon the application of either party, and proof of the sheriff's neglect, the court may direct him so to do, forthwith, or within a specified time. From Co. Proc. § 242, and Part 2 R. S. 13, § 66 (2 Edm. 14). TITLE IV. Other provisional remedies; general and miscellaneous provisions ARTICLE I. Receivers. 2. Deposit, delivery, or conveyance of property. 3. General and miscellaneous provisions. ARTICLE FIRST. Receivers. SEC. 713. Receiver; when appointed. 714. Notice of application before judgment. 716. Certain receivers may hold real property. § 713. Receiver; when appointed. In addition to the cases, where the appointment of a receiver is specially provided for by law, a receiver of property, which is the subject of an action, in the supreme court, or a county court, may be appointed by the court, in either of the following cases: 1. Before final judgment, on the application of a party who establishes an apparent right to, or interest in, the property, where it is in the possession of an adverse party and there is danger that it will be removed beyond the jurisdiction of the court or lost, materially injured or destroyed. 2. By or after the final judgment, to carry the judgment into effect. or to dispose of the property, according to its directions. 3. After final judgment, to preserve the property, during the pendency of an appeal. The word "property," as used in this section, includes the rents, profits, or other income, and the increase, of real or personal property. From Co. Proc. § 244. See rules 80, 81 (Sup. Ct.). § 714. Notice of application before judgment. Notice of an application, for the appointment of a receiver, in an action. before judgment therein, must be given to the adverse party, unless he has failed to appear in the action, and the time limited for his appearance has expired. But where an order has been made, as prescribed in section four hundred and thirty-eight of this act. the court may, in its discretion, appoint a temporary receiver, to receive and preserve the property, without notice, or upon a notice given by pub...ion or otherwise, as it thinks proper. But where the action is for i.. foreclosure of a mortgage, which mortgage provides that a receiver ay be appointed without notice, notice shall not be required. Am'd by ch. 416 of 1877 and ch. 542 of 1879. Am'd by ch. 217 of 1903. In effect Sept. 1, 1903. See § 827. § 715. Security. A receiver, appointed in an action or special proceeding, must, before entering upon his duties. execute and file with the proper clerk, a bend to the people with at least two sufficient sureties, in a penalty fixed by the court judge or referee, making the appointment, conditioned for the faithful discharge of his duties as receiver: and the execution of any such bond by any fidelity or surety company authorized by the laws of this state to transact business, shall be equivalent to the execution of said bond by two sureties. And the court, or, where the order was made out of court, the judge making the order, by or pursuant to which the receiver was appointed, or his successor in office, may, at any time remove the receiver, or direct him to give new bond, with new sureties, with the like conditions. But the foregoing provisions of this section do not apply to a case where special provision is made by law, for the security to be given by a receiver, or for increasing the same, or for removing a receiver. A receiver who, having executed and filed a bond as provided for in this section, before presenting his accounts as receiver, must give notice to the surety or sureties on his official bond, of his intention to present his accounts, not less than eight days before the day set for the hearing on said accounting. The same notice must be given to such surety or sureties where the accounting is ordered on the petition of a person or persons other than the receiver, and in no case shall the receiver's accounts be passed, settled or allowed, unless the said notice provided for in this section shall have first been given to the surety or sureties on the official bond of such receiver. Am'd by ch. 416 of 1877 and ch. 94 of 1896. § 716. Certain receivers may hold real property. A receiver, appointed by or pursuant to an order or a judgment, in an action in the supreme court, or a county court, or in a special proceeding or the voluntary dissolution of a corporation, may take and hold real property upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition thereof. From ch. 112 of 1845, § 1 (4 Edm. 552). Am'd by ch. 946 of 1895. So in original. ARTICLE SECOND. Deposit, Delivery, or Conveyance of Property. SEC. 717. Court may order a deposit or delivery of property in certain cases. 718. When sheriff may take and convey, etc., property. § 717. Court may order a deposit or delivery of property in certain cases. Where it is admitted, by the pleading or examination of a party, that he has, in his possession or under his control, money, or other personal property capable of delivery, which, being the subject of the action or special proceeding, is held by him as trustee for another party, or which belongs or is due to another party, the court may, in its discretion, grant an order upon notice, that it be paid into, or deposited in court, or delivered to that party, with or without security, subject to the further direction of the court. From Co. Proc. § 244. Am'd by ch. 416 of 1877. Payment of money into court, see § 743 et seq § 718. When sheriff may take and convey, etc., property. Where the court has directed a deposit or delivery, as prescribed in the last section; or where a judgment directs a party to make a depcsit or delivery, or to convey real property; if the direction is disobeyed, the court, besides punishing the disobedience as a contempt, may, by order, require the sheriff to take, and deposit or deliver the money or other personal property, or to convey the real property, in conformity with the direction of the court. From Co. Proc. § 244. See § 1241. ARTICLE THIRD. General and Miscellaneous Provisions. SEC. 719. Arrest, injunction and attachment; when not to be granted together. Motions relating to provisional remedies to be decided in twenty days. 720. Right of defendant interposing a counter-claim. § 719. Arrest, injunction, and attachment; when not to be granted together. Motions relating to provisional remedies to be decided in twenty days. here an application for an order of arrest, an injunction, and a warrant of attachment, or two of them, is made, in the same action, against the same defendant; and it satisfactorily appears that, under the particular circumstances of the case, two or all of them are not necessary for the plaintiff's security, the court or judge may, in its or his discretion, require the plaintiff to elect between them. Where an application is made to obtain, vacate, modify, or set aside an order of arrest, injunction order, or warrant of attachment, the court or judge must finally decide the same, within twenty days after it is submitted for decision. Am'd by ch. 542 of 1879. § 720. Right of defendant interposing a counter-claim, Where the defendant interposes a counter-claim and thereupon demands an affirmative judgment against the plaintiff, his right to a proVisional remedy is the same as in an action brought by him against the plaintiff, for the cause of action stated in the counter-claim, and demanding the same judgment. And for the purpose of applying to such a case the provisions of this act, the defendant is deemed the plaintiff, the plaintiff is deemed the defendant, and the counter-claim so set forth in the answer is deemed the complaint. Am'd by ch. 542 of 1879. |