H.
Attachment
Attachment is a statutory remedy (beginning at S.C. Code Ann. § 15-19-10), which enables a magistrate, upon the action of plaintiff, to attach property of a defendant which is within the territorial jurisdiction of the court. Magistrates are specifically authorized by §§ 15-19-40 and 22-3-10(4) to grant attachments in actions in which the debt or damages do not exceed their $7,500.00 jurisdictional amount limitation. The purpose of the remedy is twofold: to increase the likelihood of the appearance of the defendant and to preserve property for the satisfaction of any judgment rendered against the defendant.
2. Time When Attachment May Be Sought
Attachment is a temporary proceeding which may be granted only along with a main action for damage or indebtedness, and only after that other action has been commenced by issuance of a summons. The right to recover a judgment on that damage or indebtedness and the right to attach the property of a defendant are two separate and distinct actions; the latter fails without the former, and upon the dismissal of the main suit the attachment falls with it.
3. Duration of Attachment
The attachment of the property continues only until final adjudication of the action for damage or indebtedness. Personal property attached under these statutes is strictly considered to be in the hands of the court, and to so remain in the possession of the court's officers, untouched by the attaching creditor (plaintiff) until the main issue is decided.
Attachment is appropriate in actions for the recovery of money or personal property, for the recovery of damages for wrongful conversion or detention of personal property or for the recovery of damages for injury done to either person or property.
It is available in actions against a corporation created under the laws of any other state, government or country, against non-residents of this State, against captains of sailing vessels in certain instances, and against a defendant (including corporations) who has absconded or concealed himself, or who is about to remove any of his property from the court's jurisdiction or who has or is about to assign or otherwise dispose of his property with an intent to defraud his creditors. (§ 15-19-10).
5. Property Subject to Attachment
A list of property subject to attachment is provided in § 15-19-220 and includes: rights or shares in any vessel or stock in an association or corporation, with interest or profits generated by them, and any real estate or personal property of the defendant which is located within the territorial jurisdiction of the magistrate. Certain property is exempt from attachment because it is subject to homestead and other exemptions, as described in Title 15, Chapter 41 of the Code. The list is these exemptions is quite lengthy and one should always refer to the Code when questions arise regarding these exemptions.
6. Attachment When Debt Not Yet Due
In certain instances, the remedy of attachment is available even though a debt is not yet due and owed to a plaintiff. Section 15-19-30 states that when a creditor-plaintiff shows by affidavit, that the "debtor" has departed the state with intent to defraud creditors or to avoid service of summons, or has concealed himself to accomplish the same, or that he has or is about to remove or dispose or assign his property with an intent to defraud his creditors a warrant of attachment may be granted as if the debt were due and payable at that time.
However, even though such attachment be granted and property attached, no judgment shall be had until after the maturity of the debt.
7. Filing of the Affidavit
After commencement of the main action by issuance of the summons and complaint, a plaintiff desiring the issuance of a warrant of attachment must file an affidavit with the magistrate in a form such as that provided in § 15-19-60.
The affidavit must state:
(1) That a cause of action exists;
(2) That a claim exists and in what amount (not to exceed $7,500.00);
(3) The grounds of the claim as stated in §§ 15-19-10 and 15-19-50 (detailed in part 4 of this material), and
(4) The identity of the defendant.
Before issuance of the warrant of attachment, the magistrate must require a written undertaking on the part of the plaintiff, with sufficient surety, to guarantee that plaintiff will pay any costs of damages resulting from the attachment in the event that the attachment is dismissed by the court or judgment be for defendant in the main action. (§ 15-19-80).
The bond must be at least in the amount of $25 and in the form provided in § 15-19-90.
9. Issuance of Warrant of Attachment
Upon consideration of the affidavit filed by the plaintiff and receipt of a bond undertaking of a sufficient amount, the magistrate may make his final determination as to the issuance of the warrant of attachment.
Upon a determination by the magistrate that a warrant of attachment should be issued, the magistrate may issue the warrant of attachment in the form prescribed in § 15-19-110. The magistrate should also direct that a copy of the warrant of attachment, with the summons, be served on the defendant if he can be found within the county. (§ 15-19-70).
10. Attachment Procedure
The warrant should be directed to any sheriff of the county or the magistrate's constable requiring him to attach and safely keep all the property of the defendant who is named in the warrant which is found within the county, or so much as is sufficient to satisfy the claim by plaintiff. (§ 15-19-100).
The officer to whom the warrant of attachment is directed should immediately proceed to attach all such property as is appropriate in conformity with § 15-19-230.
In addition, the officer should within a reasonable time make a written return to the magistrate on the warrant reporting his success or failure in obtaining attachment of defendant's property. (§ 15-19-270).
11. Disposition of Attached Property
If a judgment in the main action is ultimately in the plaintiff's favor, the constable or sheriff should proceed to satisfy the judgment from the attached property if it be money and may sell sufficient of the attached personal property (pursuant to a valid execution issued after judgment on motion of the plaintiff) to satisfy the judgment. (§ 15-19-350).
After the satisfaction of the judgment and all costs of the proceedings, any remaining residue of the attached property or proceeds of a sale should be returned to the defendant. (§ 15-19-370).
If, however, the main action is dismissed, or upon a final judgment in the defendant's favor, all attached property, proceeds, or bonds should be returned to the defendant, on request, and the warrant discharged. (§ 15-19-390).
At any time during the pendency of the main action, the defendant, or any person who establishes a right to any of the property attached pursuant to these procedures, may move to discharge the attachment. (§ 15-19-340).
12. Release of Attached Property
The defendant may appear at any time and move for an order discharging the attachment. The appearance may be general or special. (§ 15-19-300). An undertaking shall be required for the discharge. (§ 15-19-310).