Chapter 09 - Attachment

Chapter 09 - Attachment

43.0901 Writ of attachment.

(a) The plaintiff in any permitted action upon a contract, express or implied, may, at the commencement of the action, or at any time afterward, and before judgment, have such property of the defendant or of any one or more of several defendants as is not exempt from execution, attached as security for the satisfaction of such judgment as he may recover.

(b) No writ of attachment may be issued against the government or any instrumentality thereof, the Development Bank of American Samoa, or the United States.

(c) The clerk of the High Court may issue writs of attachment.

(d) The writ of attachment shall be issued by the clerk with the approval of the court and directed to the marshal, and shall require him to attach and safely keep so much of the property of the defendant as will be sufficient to satisfy the demand of the plaintiff, with costs and expenses.

43.0902 Affidavit.

Before any writ of attachment shall issue, the plaintiff, or someone in his behalf, shall make and file with the clerk an affidavit showing that the defendant is indebted to the plaintiff, specifying the amount of such indebtedness over and above all just due credits and offsets, and stating that the attachment is not sought and the action is not prosecuted to hinder, delay or defraud any creditor of the defendant.

43.0903 Plaintiff’s bond.

(a) Before a writ of attachment shall issue, the plaintiff shall execute and file with the clerk a bond or undertaking with a surety company or 2 or more sureties, to be approved by such clerk, in a sum at least double the amount for which the plaintiff demands judgment, and in no case less than $50 in a district court and $100 in the High Court, conditioned that the plaintiff will prosecute his action without delay, and will pay all costs that may be adjudged to the defendant and all damages defendant may sustain by reason of wrongful suing out of the attachment.

(b) No bond is required when the plaintiff is the government, any instrumentality thereof, the Development Bank of American Samoa, or the United States. No bond is required in a case in which the Attorney General, as the next friend of a Samoan, shall sue a non-Samoan. A Samoan, for the purposes of this subsection, is defined to be a person of one-half or more Samoan blood by descent.

43.0904 Motion for additional security.

The defendant may at any time before judgment move the court or judge for additional security on the part of the plaintiff, and if the court or judge is satisfied that the surety on the plaintiff’s bond is insufficient or has been removed from American Samoa, the attachment may be vacated and restitution directed of any property taken under it unless in a reasonable time to be fixed by the court or judge sufficient security is given by the plaintiff.

43.0905 Action on bond.

(a) In an action on an attachment bond, the plaintiff therein may recover, if he shows that the attachment was wrongfully sued out, the actual damages sustained and reasonable attorney’s fees, of not more than $25 in any case, to be fixed by the court; and if it is shown that such attachment was sued out maliciously, he may recover exemplary damages.

(b) No action may be maintained on a bond until after final judgment in the main action unless the same is discontinued or dismissed.

43.0906 Amount of levy.

The marshal shall attach property of the defendant in an amount sufficient to satisfy the demand of the plaintiff, with costs and expenses, if sufficient property not exempt from execution can be found, giving that to which the defendant has an unquestionable title a preference over that to which his title is doubtful, and he shall, as nearly as the circumstances of the case will permit, levy upon property 20 percent greater in value than the amount which the plaintiff in his affidavit claims to be due.

43.0907 Manner of execution.

The marshal to whom the writ is directed and delivered must execute the same without delay as follows:

(a) Real property or an interest therein shall be attached by filing in the office in which conveyances of the real property attached should be recorded, a copy of the writ of attachment, endorsed or affixed with the officer’s certificate stating that by virtue of the original writ of which such copy is a true copy, he has attached such real estate, or all of the interest of the defendant therein, describing the same with convenient certainty as the property of the defendant and naming the defendant. This subsection shall not, however, render any real property subject to attachment or execution, which by any other section of this code is made exempt therefrom.

(b) Personal property capable of manual delivery shall be attached by taking the same into custody.

(c) Stock in any corporation shall be attached by notifying the president, secretary, treasurer or managing agent of the corporation and also the defendant, if within American Samoa, that the stock has been so attached.

43.0908 Indemnity for marshal.

If the marshal has any reasonable doubt as to the ownership of the property or its liability to be taken on the writ, he may require sufficient security to indemnify him for attaching it.

43.0909 Examination of defendant where sufficient property cannot be found.

Whenever it appears by the affidavit of the plaintiff or by the return of the attachment that no property is known to the plaintiff or officer on which the attachment can be executed, or not enough to satisfy the plaintiffs claim, the defendant may be required by the court or judge to appear before it or him and give information on oath respecting the same.

43.0910 Sale of perishable property.

If any attached property is perishable or in danger of serious and immediate waste or decay, the marshal shall sell the same in the manner in which property is sold on execution. Whenever it is made to appear satisfactorily to the court or judge that the interest of the parties to the action will be subserved by a sale of any attached property, the court or judge may order the property to be sold in the same manner as like property is sold under execution. Such order shall be made only upon notice to the adverse party or his attorney in case such party shall have been personally served in his action.

43.0911 Return by marshal.

The marshal shall make out a full inventory of the property attached and return the same with the writ of attachment. He shall return the writ with the summons if issued at the same time; otherwise, within such time after receipt as is allowed for a return of summons, with a certificate of his proceedings endorsed thereon or attached thereto.

43.0912 Discharge of writ upon termination of action.

If the defendant recovers judgment or the plaintiff is nonsuited or the action is discontinued or dismissed, all the proceeds of the sale and money collected by the marshal, and all the property attached remaining in the marshal’s hands, shall be delivered to the defendant or his agent, and the order of attachment shall be discharged, and the property released therefrom.

43.0913 Discharge of writ upon bond by defendant.

If the defendant, at any time before judgment, causes a bond to be executed to the plaintiff with sufficient sureties and approved by the officer having the attachment, or, after the return thereof, by the clerk, to the effect that he will perform the judgment of the court, the attachment shall be discharged and restitution made of the property taken or the proceeds thereof. The execution of the bond shall be deemed an appearance of the defendant in the action. The bond shall be part of the record, and if judgment is against the defendant, the same shall be entered against him and the sureties.

43.0914 Discharge of improperly issued writ.

The defendant may at any time after he has appeared in the action, either before or after the release of the attached property, or before any attachment has actually been levied, apply by motion and 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 issued. If it satisfactorily appears that the writ of attachment was improperly issued, it shall be discharged.

43.0915 Filing discharge order.

Whenever an order has been made discharging or releasing an attachment upon real property, a certified copy of the order may be filed in the office in which a copy of the writ has been filed and indexed in like manner.

43.0916 Payment of expenses where writ discharged.

All expenses relating to an attachment shall be paid by the plaintiff when a writ is discharged.

43.0917 Execution.

If judgment is recovered by the plaintiff, the marshal shall satisfy the same out of the property attached by him which has not been delivered to the defendant or claimant or subjected to execution on another judgment recovered before the issuing of the attachment, by applying on the execution issued on the judgment the proceeds of all sales of perishable or other property sold by him or as much as shall be necessary to satisfy the judgment. If any balance remains due on the judgment, he shall sell under the execution so much of the property, real or personal, as may be necessary to satisfy the balance. Notices of sale at public auction shall be given by posting at the courthouse door and 2 other conspicuous places in the vicinity thereof for 2 weeks in case personal property is to be sold, and 4 weeks in case of real property. Approval of the court shall be necessary for sales of real property.

43.0918 Priority among attachments.

When there are several attachments against the same defendant, they shall be executed in the order in which they are received by the marshal.

43.0919 Collection of balance due-Return of surplus.

(a) If, after selling all the property attached by him remaining in his hands and applying all the proceeds, after deduction of his fees, to the payment of the judgment, any balance remains due, the marshal shall proceed to collect such balance as upon an execution in other cases.

(b) Whenever the judgment has been paid, the marshal, upon reasonable demand, shall deliver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment.

43.0920 Appointment of receiver.

The court before which the action is pending, or the judge thereof, may at any time appoint a receiver, whose pay shall be fixed by the court and assessed as part of the costs, to take possession of property attached under the provisions of this chapter, collect the revenues thereof, manage and control the same, and pay over the proceeds according to the nature of the property and the exigency of the case.