State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1 > GS_1-440_39

§1‑440.39.  Discharge of attachment upon giving bond.

(a)        Any defendant whoseproperty has been attached may move, either before the clerk or the judge, todischarge the attachment upon his giving bond for the property attached. If noprior general appearance has been made by such defendant, such motion shall constitute a general appearance.

(b)        The court hearingsuch motion shall make an order discharging such attachment upon suchdefendant's filing a bond as follows:

(1)        If it is made toappear to the satisfaction of the court by affidavit that the property attachedis of a greater value than the amount claimed by the plaintiff, the court shallrequire a bond in double the amount of the judgment prayed for by theplaintiff, and the condition of such bond shall be that if judgment is renderedagainst the defendant, the defendant will pay to the plaintiff the amount ofthe judgment and all costs that the defendant may be ordered to pay, thesurety's liability, however, to be limited to the amount of the bond.

(2)        If it is made toappear to the satisfaction of the court by affidavit that the property attachedis of less value than the amount claimed by the plaintiff, the court shall,upon affidavits filed, determine the value thereof and shall require a bond indouble the amount of such value, and the condition of the bond shall be that ifjudgment is rendered against the defendant, the defendant will pay to theplaintiff an amount equal to the value of such property.

(c)        If a bond is filedas provided in subsection (b) of this section, all property of such defendantthen remaining in the possession of the sheriff pursuant to such attachment,including, but not by way of limitation, money collected and the proceeds ofsales, shall be delivered to the defendant and shall thereafter be free fromthe attachment.

(d)        The discharge of anattachment as provided by this section does not bar the defendant fromexercising any right provided by G.S. 1‑440.36, 1‑440.37 or 1‑440.40.(1947, c. 693, s. 1.)