AS Title 9, Chapter 40: Provisional Remedies

Article 1. Attachment. Chapter 40. Provisional Remedies. Sec. 09.40.010. Actions in which attachment is authorized. (a) At any time after an action has been commenced the plaintiff may make application to the court to have the property of the defendant attached as security for the satisfaction of a judgment that may be recovered in the following cases: (1) in an action upon an express or implied contract for the payment of money if the contract is neither secured by mortgage, lien, nor pledge upon real or personal property, or, if secured, the security is insufficient to satisfy a judgment that may be recovered by the plaintiff; (2) in an action upon an express or implied contract against a defendant not residing in the state; (3) in an action for the collection of a state tax or license fee. (b) An attachment may not issue if the defendant gives security to pay a judgment that may be recovered as provided in AS 09.40.010 — 09.40.110. Sec. 09.40.020. Undertaking. Before the writ is issued, the plaintiff shall give a written undertaking with sufficient sureties to the effect that, if the defendant recovers judgment, the plaintiff will pay all costs that may be awarded to the defendant and all damages that the defendant may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, and that, if the attachment is discharged on the ground that the plaintiff was not entitled to it under AS 09.40.010 — 09.40.110, the plaintiff will pay all damages that the defendant may have sustained by reason of the attachment, not exceeding the sum specified in the undertaking. The sum specified in the undertaking shall be equal to the amount claimed by the plaintiff, but not less than $100. Sec. 09.40.025. Appointment of person to serve attachment process. Service of all process relating to attachment may be made by a person specially appointed by the court for that purpose. Sec. 09.40.030. Property subject to attachment. All property in the state not exempt from execution may be attached. Sec. 09.40.040. Third party liability. All persons having in their possession personal property belonging to the defendant or owing a debt to the defendant at the time of service upon them of the writ and notice shall deliver, transfer, or pay the property or debts to the peace officer, or be liable to the plaintiff for the amount of the property or debts until the attachment is discharged or a judgment recovered by plaintiff is satisfied. Debts and other personal property may be delivered, transferred, or paid to the peace officer without suit, and the receipt of the officer is a sufficient discharge. Sec. 09.40.050. Lien on real estate. If real property is attached, the peace officer shall make a certificate containing the title of the cause, the names of the parties, a description of the property attached, the date of attachment, a statement that a writ of attachment has been issued, and the date of issuance, and shall within 10 days deliver the certificate to the recorder of the recording district in which the real property is situated. The recorder shall record the certificate in a book to be kept for that purpose. When the certificate is recorded, the lien in favor of the plaintiff attaches to the real property described in the certificate from the date of the attachment, but if recorded afterwards, it only attaches as against third persons from the date of the subsequent recording. Whenever the lien is discharged, it is the duty of the recorder, when requested, to record the transcript of an order, entry of satisfaction of judgment, or other proceeding of record whereby it appears that the lien has been discharged. Sec. 09.40.060. Third party indebted to defendant or possessing property of defendant. When a peace officer with a writ of attachment applies to a person for the purpose of attaching property mentioned in the attachment, the person shall within a reasonable time and in any event within 24 hours furnish the peace officer with a statement designating the amount and description of any personal property in the person's possession belonging to the defendant, or any debt the person owes to the defendant. If the person refuses to do so, or if the statement is unsatisfactory to the plaintiff, the person may be ordered to appear before the court and be examined concerning the property or debt. Sec. 09.40.070. Sale of perishable property. If any of the property attached is perishable, the peace officer shall sell the property in the manner in which property is sold on execution. The proceeds and other property attached shall be retained by the officer to answer a judgment that may be recovered in the action unless sooner subjected to execution upon another judgment recovered previous to the levy of attachment. Sec. 09.40.080. Liability on undertaking. In a proceeding brought against the principal or the sureties upon an undertaking given to secure the release of attached property, it is a defense that the property for which the undertaking was given did not, at the execution of the writ of attachment, belong to the defendant against whom it was issued. Sec. 09.40.090. Disposition of property after judgment in plaintiff's favor. When plaintiff recovers judgment, and the property attached in the suit was not sold as perishable property or discharged from the attachment, the court shall order the property to be sold to satisfy the plaintiff's demands. If execution is issued upon the judgment, the peace officer shall apply the property attached, including money or the proceeds from the sale of the property, upon the execution. If there is any of the property or proceeds remaining after satisfying the execution, the peace officer shall, upon demand, deliver the property or proceeds to the defendant. Sec. 09.40.100. Return of property upon judgment for defendant. If the defendant recovers judgment against the plaintiff and no appeal is taken, all the property attached, the proceeds from property attached, and the undertaking received in the action shall be delivered to the defendant upon service upon the peace officer of a certified copy of the order discharging the attachment. Sec. 09.40.110. Delivery of property to defendant and redelivery bond. The peace officer may deliver any of the property attached to the defendant, or to a person claiming it, upon the giving of a written undertaking for the property executed by one or more sufficient sureties, engaging to redeliver it or pay the value of the property to the peace officer to whom execution upon a judgment obtained by the plaintiff in that action may be issued. Article 2. Civil Arrest. Sec. 09.40.120. Arrest and bail in civil actions. The plaintiff in a civil action may have the defendant arrested and held to bail in the manner provided in AS 09.40.120 — 09.40.220. The writ of ne exeat is abolished. Sec. 09.40.130. Grounds for arrest. The defendant may be arrested in an action for debt when the defendant is about to remove from the state with intent to defraud creditors or is absconding. Sec. 09.40.140. Order for arrest. An order for the arrest of the defendant may be obtained only from a judge of the court in which the action is brought. The order shall be made immediately whenever it appears to the judge that a sufficient claim and proper grounds exist. Sec. 09.40.150. Undertaking by plaintiff. Before making the order, the judge shall require an undertaking on the part of the plaintiff, with one or more sufficient sureties, to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages that the defendant may sustain by reason of the arrest if the same be wrongful or without sufficient cause, not exceeding the sum specified in the undertaking. The undertaking shall be in a sum to be fixed by the judge, but not less than $300. Sec. 09.40.160. Time for order for arrest. The order may be made at the time of the issuing of the summons or afterwards but before the judgment. It shall require a peace officer to immediately arrest the defendant and to hold the defendant to bail in the amount specified. Sec. 09.40.170. Discharge on bail or deposit. The defendant, at any time before execution, shall be discharged from the arrest either upon giving bail or upon depositing the amount mentioned in the order for arrest. Sec. 09.40.180. Amount of bail. The defendant may give bail by causing a written undertaking to be executed by one or more sufficient sureties to the effect that they are bound in the amount mentioned in the order for arrest, that the defendant will be amenable to the process of the court during the pendency of the action and to processes that may be issued to enforce the judgment, or that they will pay the plaintiff the amount of the judgment that may be recovered in the action. Sec. 09.40.190. Surrender of defendant by bail or in person. At any time before failure to comply with the undertaking, the bail may surrender the defendant in their exoneration, or the defendant may surrender to a peace officer of the court where the action is pending. Sec. 09.40.200. Arrest of defendant by or on authority of bail. For the purpose of surrendering the defendant, the bail, at any time and place before they are finally charged, may personally arrest the defendant, or, by a written authority endorsed on a certified copy of the undertaking, may empower a peace officer to do so. Upon the arrest of the defendant by a peace officer, or upon delivery of the defendant to the peace officer by the bail, or upon the defendant's own surrender, the bail are exonerated if the arrest, delivery, or surrender takes place at a time before judgment. But if the arrest, delivery, or surrender does not take place before judgment, the bail are finally charged on their undertaking, and bound to pay the amount of the judgment. Sec. 09.40.210. Exoneration of bail. The bail are exonerated by the defendant's death, imprisonment in a penitentiary, or legal discharge from the obligation to be amenable to the process. Sec. 09.40.220. Motion to vacate order for arrest or to reduce bail. A defendant arrested may, at any time before judgment, apply on a motion to the court or a judge of the court in which the action is pending to vacate the order for arrest or to reduce the amount of bail. If upon the hearing of the motion it appears that there was not sufficient cause for the arrest, the order shall be vacated; or if it appears that the bail was fixed too high, the amount shall be reduced. Article 3. Injunction. Sec. 09.40.230. Authorization for injunction. When it appears that (1) the plaintiff is entitled to the relief demanded, and the relief or any part of it includes restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the plaintiff; or (2) the defendant is doing, or threatens or is about to do, or is procuring or suffering to be done some act in violation of the plaintiff's rights concerning the subject of the action and tending to render the judgment ineffectual; or (3) the defendant threatens or is about to remove or dispose of property or a part of it with intent to delay or defraud creditors, an injunction may be allowed to restrain such act, removal, or disposition. Sec. 09.40.235. Restraining orders, preliminary injunctions, and stays affecting industrial operations. (a) Unless exempt under AS 09.68.040 (a), a party seeking a restraining order, preliminary injunction, or order staying the operation of a permit that affects an industrial operation shall give security, in an amount the court considers proper, for costs that may be incurred and damages that may be suffered by the industrial operation if the industrial operation is wrongfully enjoined or restrained. Upon request of any party and when that party presents evidence, one relevant factor the court shall consider is the amount of wages and benefits for employees and payment to contractors and subcontractors of the industrial operation that may be suffered if the industrial operation is wrongfully enjoined or restrained. In this subsection, “industrial operation” includes a construction, energy, or timber activity and oil, gas, and mineral exploration, development, and production. (b) The existence of security under (a) of this section does not (1) prohibit a person who is wrongfully enjoined or restrained from obtaining relief that may be available to that person; or (2) limit the amount that a party may recover in the action. (c) A party is not required to give security under (a) of this section if the challenged permitting decision or authorization is made by (1) the Department of Environmental Conservation under AS 46.03 or AS 46.14 in a program approved or delegated by the United States Environmental Protection Agency; or (2) the Department of Natural Resources under AS 27.21 in a program approved or delegated by the Office of Surface Mining Reclamation and Enforcement in the United States Department of the Interior. Article 4. Receivers. Sec. 09.40.240. Appointment of receivers. A receiver may be appointed by the court in any action or proceeding except an action for the recovery of specific personal property (1) provisionally, before judgment, on the application of either party, when the party's right to the property that is the subject of the action or proceeding and that is in the possession of an adverse party is probable, and where it is shown that the property or its rents or profits are in danger of being lost or materially injured or impaired; (2) after judgment, to carry the judgment into effect; (3) after judgment, to dispose of the property according to the judgment or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied and the debtor refuses to apply the debtor's property in satisfaction of the judgment; (4) in the cases when a corporation has been dissolved, or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights; (5) in the cases when a debtor has been declared insolvent; (6) under AS 32.06.504 (a). Sec. 09.40.250. Oath and undertaking of receiver. Before entering upon any duties, a receiver shall be sworn to perform them faithfully, and shall file with the clerk of court an undertaking with one or more sufficient sureties in the sum the court may direct to the effect that the receiver will faithfully discharge the duties of receiver and obey the orders of the court. Article 5. Recovery of Personal Property. Sec. 09.40.260. Claim for delivery of personal property. In an action to recover possession of personal property, the plaintiff may, at any time after the action is commenced and before judgment, claim the immediate delivery of the property. Sec. 09.40.270. Undertaking. A peace officer may not take personal property into custody until the plaintiff delivers to the peace officer the affidavit and undertaking of sufficient sureties to the effect that they are bound in double the value of the property for the prosecution of the action and the return of the property to the defendant, if return be adjudged, and for the payment to the defendant of any sum that may be recovered against the plaintiff. Sec. 09.40.280. Undertaking for return of property to defendant. The defendant may, within the time set by the court, require the return of the property upon delivering to the peace officer having custody of the property a written undertaking approved by the clerk of the court and executed by sufficient sureties to the effect that they are bound in double the value of the property for the delivery of the property to the plaintiff, if such delivery be adjudged, and for the payment to the plaintiff of such sum as may, for any cause, be recovered against the defendant. Sec. 09.40.290. Property concealed in building or enclosure, demand and entry to effect seizure. If the property or any part of it is concealed in a building or enclosure, the peace officer shall publicly demand its delivery. If it is not delivered, the peace officer shall cause the building or enclosure to be broken open and take the property into possession. Sec. 09.40.300. Custody of property seized. When the peace officer has taken the property into custody, the peace officer is responsible for it and shall keep it in a secure place and deliver it to the party entitled to it upon receiving the lawful fees for taking and the necessary expenses for keeping it. Sec. 09.40.310. Third party claims. If the property taken is claimed by any person other than the defendant, and that person makes an affidavit of title to the property or the right to the possession of it, stating the grounds of the title or right, and serves it upon the peace officer taking the property while the property is still in the peace officer's custody, the peace officer may release the property unless the plaintiff, on demand of the officer, indemnifies the peace officer against the third party claim by a written undertaking approved by the clerk of court and executed by sufficient sureties.