§ 354. Claims by third persons If a third person claims any attached personal property as his property, the provisions applicable in cases of third party claims after levy under execution apply. § 355. Satisfaction of judgment If judgment is recovered by the plaintiff, the marshal shall satisfy it out of the property attached by him which has not been delivered to the defendant or a claimant, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it is sufficient for that purpose: (1) by paying to the plaintiff the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by him, or so much as are necessary to satisfy the judgment: and (2) if a balance remains due, and an execution has been issued 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, if enough for that purpose remains in his hands. Notices of the sales shall be given, and the sales conducted as in other cases of sales on execution. § 356. Collection of balance due; return of surplus If, after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits collected by him, deducting his fees, to the payment of the judgment, any balance remains due, the marshal must proceed to collect the balance, as upon an execution in other cases. If 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. § 357. Plaintiff's remedies if execution is unsatisfied If the execution is returned unsatisfied, in whole or in part, the plaintiff may enforce any undertaking given pursuant to sections 344 or 360 of this title, or he may proceed, as in other cases, upon the return of an execution. § 358. Judgment for defendant; discharge of attachment If a defendant recovers judgment against the plaintiff and no appeal is perfected and undertaking executed, any undertaking received in the action, all the proceeds of sales 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, the order of attachment be discharged, and the property released therefrom. § 359. Discharge of attachment on defendant's undertaking If a defendant has appeared in the action, he may, upon reasonable notice to the plaintiff, apply to the district court for an order to discharge the attachment wholly or in part; and upon the execution of the undertaking specified by section 360 of this title, an order may be made releasing from the operation of the attachment, any or all of the property of the defendant attached; and all the property so released and all the proceeds of the sales thereof, shall be delivered to the defendant upon the justification of the sureties on the undertaking, if required by the plaintiff. The justification must take place within five days after the notice of the filing of the undertaking. § 360. Requirements for defendant's undertaking Before making an order prescribed by section 359 of this title, the court shall require an undertaking on behalf of the defendant, by at least two sureties, to the effect that in case the plaintiff recovers judgment in the action against the defendant, by whom or in whose behalf the undertaking is given, the defendant will, on demand, redeliver the attached property so released to the proper officer, to be applied to the payment of any judgment in the action against the defendant, or in default thereof that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released not exceeding the amount of the judgment against the defendant. The court may fix the sum for which the undertaking must be executed, and if necessary in fixing the sum to know the value of the property released, it may be appraised by one or more disinterested persons, to be appointed for that purpose. The sureties may be required to justify before the court and the property attached may not be released from the attachment without their justification if it is required. § 361. Discharge of attachment irregularly issued (a) The defendant may also at any time, either before or after the release of the attached property, or before any attachment has been actually levied, apply on motion, upon reasonable notice to the plaintiff, that the writ of attachment be discharged on the ground that it was improperly or irregularly issued. (b) If the motion is made upon affidavits on the part of the defendant, the plaintiff may oppose it by affidavits or other evidence, in addition to those on which the attachment was made. (c) If upon the application it satisfactorily appears that the writ of attachment was improperly or irregularly issued it shall be discharged; but the attachment may not be discharged if at or before the hearing of the application, the writ of attachment, or the affidavit, or undertaking upon which the attachment was based is amended and made to conform to this subchapter. § 362. Return of writ; filing order releasing attachment The marshal shall return the writ of attachment with the summons, if issued at the same time; otherwise, within 20 days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto. If 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 of the registrar of property. § 363. Release of real property from attachment An attachment as to real property may be released by a writing signed by the plaintiff, or his attorney, or the officer who levied the writ and acknowledged in the manner provided by chapter 27 of Title 4; and upon the filing of the release, the registrar of property shall note it on the record of the copy of the writ on file in his office. Such an attachment may also be released by an entry in the margin of the record thereof, in the registrar's office, in the manner provided for the discharge of mortgages by section 4127 of Title 4. § 364. Attachment of interest in decedent's estate The interest of a defendant in personal property belonging to the estate of a decedent, whether as heir, legatee, or devisee, may be attached by serving the personal representative of the decedent with a copy of the writ and a notice that the interest is attached. The attachment may not impair the powers of the representative over the property for the purposes of administration. A copy of the writ of attachment and of the notice shall also be filed in the office of the clerk of the court in which the estate is being administered and the personal representative shall report the attachment to the court when a petition for distribution is filed, and in the decree made upon the petition distribution shall be ordered to the heir, legatee, or devisee, but delivery of the property shall be ordered to the officer making the levy subject to the claim of the heir, legatee, or devisee, or any person claiming under him. The property may not be delivered to the officer making the levy until the decree distributing the interest has become final. Subchapter V-Receivers § 381. Appointment of receivers generally A receiver may be appointed by the district court in an action pending therein: (1) in an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or funds is in danger of being lost, removed, or materially injured; (2) in an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt; (3) after judgment, to carry the judgment into effect; (4) after judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or in proceedings in aid of execution, when an execution has been returned unsatisfied, or when the judgment debtor refuses to apply his property in satisfaction of the judgment; (5) in the cases when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights; and (6) in all other cases where receivers have heretofore been appointed by the usages of courts of equity. § 382. Appointment of receivers upon dissolution of corporations Upon the dissolution of a corporation having its principal place of business in the Canal Zone, the district court, on application of a creditor of the corporation, or of a stockholder or member thereof, may appoint one or more persons to be receivers or trustees of the corporation, to take charge of the estate and effects thereof and to collect the debts and property due and belonging to the corporation, and to pay the outstanding debts thereof, and to divide the moneys and other property that remain over among the stockholders or members. 8 383. Qualifications of receivers; undertaking on ex parte appointment A party, or attorney of a party, or person interested in an action, may not be appointed receiver therein without the written consent of the parties, filed with the clerk. If a receiver is appointed upon an ex parte application, the court, before making the order, shall require from the applicant an undertaking, with sufficient sureties, in an amount to be fixed by the court. to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of the receiver and the entry by him upon his duties, in case the applicant has procured the appointment wrongfully, maliciously, or without sufficient cause. At any time after the appointment, the court may require an additional undertaking. 88558 0-62 28 § 384. Oath and undertaking of receiver Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and with two or more sureties, approved by the court, execute an undertaking to the Government of the Canal Zone in such sum as the court may direct, to the effect that he will faithfully discharge the duties of receiver in the action and obey the orders of the court therein. § 385. Powers of receivers The receiver may, under the control of the court, bring and defend actions in his own name, as receiver; take and keep possession of the property, receive rents, collect debts, compound for and compromise the same, make transfers, and generally do such acts respecting the property as the court authorizes. § 386. Investment of funds Funds in the hands of a receiver may be invested upon interest, by order of the court made upon the consent of all the parties to the action. § 387. Unclaimed funds in receiver's hands A receiver having funds in his hands belonging to a person whose whereabouts are unknown to him, shall, before receiving his discharge as receiver, publish a notice, in one or more newspapers of general circulation in the Canal Zone, at least once a week for four consecutive weeks, setting forth the name of the owner of any unclaimed funds, the last known place of residence or post office address of the owner and the amount of the unclaimed funds. Any funds remaining in his hands unclaimed for 30 days after the date of the last publication of the notice, shall be reported to the court. Upon order of the court, all such funds shall be paid to the Canal Zone Government accompanied with a copy of the order, setting forth the facts required in the notice herein provided. The funds shall be paid out by the Canal Zone Government to the owner thereof or his order in such manner and upon such terms as the court directs. All costs and expenses connected with the advertising shall be paid out of the funds the whereabouts of whose owners are unknown. Subchapter VI-Deposits in Court; Handling of Funds by Clerk § 411. Order for deposit of money or property or delivery to another party If it is admitted by the pleadings, or shown upon the examination of a party to the action, that he has in his possession, or under his control, money or another thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court upon motion may order the same to be deposited in court or delivered to the party, upon such conditions as may be just, subject to the further direction of the court. § 412. Enforcement of order If, in the exercise of its authority, a court has ordered the deposit or delivery of money, or other thing, and the order is disobeyed, the court, in addition to punishing the disobedience, may make an order requiring the marshal to take the money, or thing, and deposit or deliver it in conformity with the direction of the court. § 413. Money deposited in registry of court Money deposited with the clerk of the district court, by or for the use of any party, upon a judgment of the court or in a pending action or proceeding by virtue of the law or by direction of the court, as soon as deposited with the clerk, shall be deemed to be in the registry of the court. (b) Money paid into court pursuant to Rule 67 of the Federal Rules of Civil Procedure shall be deposited and withdrawn in accordance with the provisions of this subchapter. § 414. Deposit of sums over $200 in depositary; disbursements; records The clerk shall deposit in a depositary designed by the judge of the district court, in the name of that court, every sum of money deposited in the registry of the court which exceeds $200, as soon as it is received. The money may thereafter be paid out only on a check, voucher, or order of the court, or the judge thereof, countersigned by the clerk of the court. The clerk in each division of the district court shall make a record showing the date of receipt, the amount received, from whom received, and the case in which any such money is deposited in the registry of the court; and the date, amount, and to whom the same was paid out. § 415. Maintenance of general deposit account; interest; commission; deposit of funds The clerk shall maintain a general deposit account in a designated depositary in which shall be deposited every cash fund exceeding $200 deposited in the registry of the court. Interest earned on the general account shall be retained by the clerk as his commission for receiving and caring therefor and shall be accounted for by him as fees of his office. The clerk may not charge a commission for handling a fund of $200 or less. If, however, a fund exceeding $200 is likely to remain in the registry of the court for six months or more, and the parties so stipulate or the court so directs, the fund shall be deposited in a designated bank in a savings account at interest. The clerk's commission for caring for the fund in such case shall be paid only out of interest earned thereon, to the amount of one-fourth of the interest. The remainder of the interest shall be deemed a part of the fund and shall be paid out on order or decree of the court according to the exigency of the case. § 416. Designation of depositaries The judge of the district court shall designate one or more depositaries in which money deposited in the registry of the court shall be deposited by the clerk. 8 417. Deputy clerks and acting clerks As used in sections 413-416 of this title, the word "clerk" includes the clerk of the district court, the deputy clerks thereof, and any acting clerk when performing the duties of the clerk or deputy clerk when they or any of them are absent on account of illness or vacation, or are unable to act from any cause. § 418. Disposition of unclaimed funds by clerk When the clerk of the district court has in his hands for a period of two years or more any fund or moneys belonging to any person or persons, which he has been unable to disburse to the person or persons because of his inability to locate them, or because of their refusal to accept the same, the clerk shall upon order of the court turn the same over to the Canal Zone Government to be held and disposed of as provided in this section. A person claiming to be entitled to an amount so deposited with the Canal Zone Government may, within five years after the deposit, petition the court for an order directing payment to the claimant. A copy of the petition shall be served on the Canal Zone Government and thereafter the amount may not be covered into the Treasury of the United States, as provided by this section, until so ordered by the court. |