12-1523

12-1523. Issuance of writ for debt or demand
not due; affidavit; trial; judgment

A. After entry of an order pursuant to the requirements of chapter 14 of this
title, a writ of attachment may issue although the plaintiff's debt or demand is not due,
but final judgment shall not be rendered against the defendant until the debt or demand
is due.

B. To obtain an attachment for a debt or demand not due, the plaintiff may file
with the clerk or justice of the peace a complaint and shall file an affidavit showing:

1. That the defendant is indebted to the plaintiff upon a contract, express or
implied, for the direct payment of money, stating the amount, and that the debt is not
due.

2. That such contract was made or is payable in this state.

3. That payment of the debt has not been secured by a mortgage, pledge or lien.

4. The character of the debt sued for.

5. That there are no legal setoffs or counterclaims against the debt.

6. That the defendant is about to remove permanently from the state and has refused
to secure the debt, or that he has secreted his property for the purpose of defrauding
his creditors, or that he is about to remove his property from the state without leaving
sufficient property remaining for payment of his debts, or that he has disposed of his
property wholly or in part with intent to defraud his creditors, or that he is about to
dispose of his property with intent to defraud his creditors.

C. The affidavit shall further state that the attachment is not sued out for the
purpose of injuring or harassing the defendant and that the plaintiff will probably lose
his debt unless the attachment is issued.

D. The facts set forth in the affidavit filed under this section may be denied by
the defendant, and the issue so formed shall be tried as other questions of fact.

E. If judgment is for the defendant, the court shall fix and include in the
judgment a reasonable attorney's fee and shall enter judgment therefor against the
sureties upon the attachment bond.