RULE 64. SEIZURE OF PROPERTY
At the commencement of and during the course of an action, all remedies providing for seizure of property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of this state existing at the time the remedy is sought.
EXPLANATORY NOTE
Rule 64 is derived from Rule 64, FRCivP.
The principal departure from the federal rule is the authorization for the use of the remedies only for the seizure of property, not persons as in Rule 64, FRCivP. Qualifications to the federal rule do not apply to the North Dakota court system and were not included. Also, the listing of remedies available has been omitted. These are found in the North Dakota Century Code.
The remedies available in this state include attachment (Chapter 32-08.1, N.D.C.C.), replevin (Chapter 32-07, N.D.C.C.), garnishment (Chapter 32-09, N.D.C.C.), and others. In recent years, many state laws authorizing prejudgment remedies but not providing for prior notice and hearing have been struck down. See, Sniadach v. Family Finance Corporation of Bay View, 89 S.Ct. 1820, 395 U.S. 337, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 92 S.Ct. 1983, 407 U.S. 67, 32 L.Ed.2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); and Guzeman v. Western State Bank, 516 F.2d 125 (8th Cir. 1974). The latter case ruled that the North Dakota attachment statute (Chapter 32-08, N.D.C.C.) violated due process. That statute was subsequently repealed and replaced by Chapter 32-08.1, N.D.C.C.
It is also possible some federal laws may take precedence in this area. For example, Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appendix, 523 and 524, provide under certain circumstances for the vacation or stay of any attachment or garnishment directed against the serviceman's property, money, or debts in the hands of another.
SOURCES: Joint Procedure Committee Minutes of November 29-30, 1979, pages 20-21;Rule 64, FRCivP.
CROSS REFERENCE: Rule 4 (Persons Subject to Jurisdiction Process Service), N.D.R.Civ.P.