Seizure is the method of levy for personal property in a
defendants going concern (business). Property levied under a writ
of attachment is held by the Sheriff until the lawsuit is
adjudicated. Ordinarily, the defendant has the opportunity to attend
a hearing to oppose the issuance of a writ of attachment. However,
the court may issue a writ of attachment ex parte without notice to
the defendant under certain circumstances. The placement of a keeper
in the defendants business for an 8-hour period is a relatively
inexpensive form of seizure and is particularly useful when used as
a "fact-finding mission" to identify equipment and
inventory at the defendants business. A deputy sheriff performs
the levy by placing a keeper (custodian) in the debtors business
for an 8-hour period. During that time, the keeper seizes incoming
cash and checks from the sale of merchandise and prevents the
removal of any stock-in-trade unless paid for. The keeper also
prepares a written inventory of the property found at the business.
If further action is required, the plaintiff may refer to the keepers
inventory to weigh the feasibility of having the Sheriff seize, move
to storage and sell some or all of the inventory. Equipment of the
business is not subject to seizure as a lien filed with the
Secretary of State is the proper method of levy.
The Sheriff must serve a copy of the writ of attachment, order
for issuance of the writ and notice of attachment on the defendant.
If the defendant has an attorney of record, service must be made on
the attorney rather than the defendant. If the writ of attachment
was issued ex parte and the defendant did not appear in the action,
e.g., defendant did not file a response with the court, the service
must be made in the same manner as a summons. Otherwise, service may
be made by mail. Consequently, the instructions to the Sheriff must
provide the name and address of the defendants attorney, if any,
and indicate whether the defendant has appeared in the action (if
the writ was issued ex parte.)