Attachment Order - Kansas District Court (Page 3 of 3) in pdf

Authority

K.S.A. 60-706.

Notes on Use

In certain circumstances, property of a defendant may be attached prior to obtaining a final

judgment upon which general execution may issue. Compare K.S.A. 60-701 and 60-703 with 60-2401. The

specific grounds for attachment are set forth in K.S.A. 60-701. An order of attachment must be issued by a

district court judge and must be supported by an affidavit stating one or more of the statutory grounds for

attachment. K.S.A. 60-703. Bond is required except in actions on behalf of the state or a county. K.S.A. 60-

703. The order must be served by the sheriff or other officer authorized by law to serve such process.

K.S.A. 60-703; see also K.S.A. 60-303(d)(3) and comment below. The order of attachment is in addition

to other process, not a substitute for it, but is served in the same manner as an ordinary summons. K.S.A. 60-

706(b)(1).

The officer is required to go to the place where the defendant’s property is located and

declare that the officer is attaching the property by virtue of the order. K.S.A. 60-706(b)(1).

As the form reflects, different types of property are attached in different ways. When

attaching personal property, the officer and two disinterested appraisers who are residents of the county are

required to make an inventory and appraisal, which must be signed by the officer and the appraisers and

returned with the order. Compensation of the appraisers and the officer is fixed by the Court and assessed

as court costs. K.S.A. 60-706(b)(2). If the property to be attached is tangible personal property, the officer

is required to take possession of it, if that can reasonably be done. K.S.A. 60-706(b)(3). If the tangible

property is in the possession of a person other than the defendant, the officer attaches it by declaring to the

person that the property is attached and summoning the person as garnishee by serving a copy of the order

of attachment upon them. K.S.A. 60-706(b)(3). Real property is attached by leaving a copy of the order with

the occupant of the property, or if there is no occupant, by leaving it in a conspicuous place on the property.

K.S.A. 60-706(b)(4). If the officer serves an occupant, the return must include that person’s name. K.S.A.

60-706(b)(4).

In the case of credits, attachment is made by declaring to the debtor that the officer is

attaching all debts due from debtor to the defendant, or so much as necessary to satisfy the debt and interest

or damages and costs, and summoning the debtor as garnishee by serving a copy of the order of attachment

upon them. K.S.A. 60-706(b)(5).

Comment

The law has been clarified regarding who can serve an order of attachment. See Steele v. City

of Wichita, 254 Kan. 801, 869 P.2d 653 (1994). K.S.A. 2004 Supp. 60-303(d)(3) provides in part as follows:

“Service , levy, and execution of all process under this subsection,

including, but not limited to, writs of execution, orders of attachment,

replevin orders, orders for delivery, writs of restitution and writs of

assistance, shall be made by a sheriff within the sheriff’s county, by the

sheriff’s deputy, by an attorney admitted to the practice of law before the

supreme court of Kansas or by some person appointed as a process server

by a judge or clerk of the district court . . . . All persons authorized under

this subsection to serve, levy and execute process shall be considered an

“officer” as used in K.S.A. 60-706 and 60-2401and amendments thereto.”

The defendant may regain possession of attached property at any time before final judgment

or sale of the property under court order, by posting a sufficient surety bond. K.S.A. 60-707. The sufficiency

of attachment proceedings may be challenged by filing a motion to dissolve the attachment. K.S.A. 60-712.

Attachment Order - Kansas District Court Page 3

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