VIII. PROVISIONAL AND FINAL REMEDIES
Rule 64. Seizure of Person or Property
At the commencement of and during the course of an action, all remedies providing for seizure of person or 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 the state in which the district court is held, existing at the time the remedy is sought, subject to the following qualifications: (1) any existing statute of the United States governs to the extent to which it is applicable; (2) the action in which any of the foregoing remedies is used shall be commenced and prosecuted or, if removed from a state court, shall be prosecuted after removal, pursuant to these rules. The remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equivalent remedies, however designated and regardless of whether by state procedure the remedy is ancillary to an action or must be obtained by an independent action.
Notes of Advisory Committee on Rules—1937
This rule adopts the existing Federal law, except that it specifies the applicable State law to be that of the time when the remedy is sought. Under U.S.C., Title 28, [former] §726 (Attachments as provided by State laws) the plaintiff was entitled to remedies by attachment or other process which were on June 1, 1872, provided by the applicable State law, and the district courts might, from time to time, by general rules, adopt such State laws as might be in force. This statute is superseded as are district court rules which are rendered unnecessary by the rule.
Lis pendens. No rule concerning lis pendens is stated, for this would appear to be a matter of substantive law affecting State laws of property. It has been held that in the absence of a State statute expressly providing for the recordation of notice of the pendency of Federal actions, the commencement of a Federal action is notice to all persons affected. King v. Davis, 137 Fed. 198 (W.D.Va., 1903). It has been held, however, that when a State statute does so provide expressly, its provisions are binding. United States v. Calcasieu Timber Co., 236 Fed. 196 (C.C.A.5th, 1916).
For statutes of the United States on attachment, see e.g.:
U.S.C., Title 28:
§737 [now 2710] (Attachment in postal suits)
§738 [now 2711] (Attachment; application for warrant)
§739 [now 2712] (Attachment; issue of warrant)
§740 [now 2713] (Attachment; trial of ownership of property)
§741 [now 2714] (Attachment; investment of proceeds of attached property)
§742 [now 2715] (Attachment; publication of attachment)
§743 [now 2716] (Attachment; personal notice of attachment)
§744 [now 2717] (Attachment; discharge; bond)
§745 [former] (Attachment; accrued rights not affected)
§746 (Attachments dissolved in conformity with State laws)
For statutes of the United States on garnishment, see e.g.:
U.S.C., Title 28:
§748 [now 2405] (Garnishees in suits by United States against a corporation)
§749 [now 2405] (Same; issue tendered on denial of indebtedness)
§750 [now 2405] (Same; garnishee failing to appear)
For statutes of the United States on arrest, see e.g.:
U.S.C., Title 28:
§376 [now 1651] (Writs of ne exeat)
§755 [former] (Special bail in suits for duties and penalties)
§756 [former] (Defendant giving bail in one district and committed in another)
§757 [former] (Defendant giving bail in one district and committed in another; defendant held until judgment in first suit)
§758 [former] (Bail and affidavits; taking by commissioners)
§759 [former] (Calling of bail in Kentucky)
§760 [former] (Clerks may take bail de bene esse)
§843 [now 2007] (Imprisonment for debt)
§844 [now 2007] (Imprisonment for debt; discharge according to State laws)
§845 [now 2007] (Imprisonment for debt; jail limits)
For statutes of the United States on replevin, see, e.g.:
U.S.C., Title 28:
§747 [now 2463] (Replevy of property taken under revenue laws)
Notes of Advisory Committee on Rules—1946 Supplementary Note
Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. [App.] §501 et seq. [§§523, 524]) provide under certain circumstances for the issuance and continuance of a stay of the execution of any judgment entered against a person in military service, or the vacation or stay of any attachment or garnishment directed against such person's property, money, or debts in the hands of another. See also Note to Rule 62 herein.
Cross References
Execution, see rule 69.
Rule 65. Injunctions
(a)
(1) Notice. No preliminary injunction shall be issued without notice to the adverse party.
(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
(b)
(c)
The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule.
(d)
(e)
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.)
Notes of Advisory Committee on Rules—1937
Note to Subdivisions (a) and (b). These are taken from U.S.C., Title 28, [former] §381 (Injunctions; preliminary injunctions and temporary restraining orders).
Note to Subdivision (c). Except for the last sentence, this is substantially U.S.C., Title 28, [former] §382 (Injunctions; security on issuance of). The last sentence continues the following and similar statutes which expressly except the United States or an officer or agency thereof from such security requirements:
U.S.C., Title 15, §§77t(b), 78u(e), and 79r(f) (Securities and Exchange Commission).
It also excepts the United States or an officer or agency thereof from such security requirements in any action in which a restraining order or interlocutory judgment of injunction issues in its favor whether there is an express statutory exception from such security requirements or not.
See U.S.C., [former] Title 6 (Official and Penal Bonds) for bonds by surety companies.
Note to Subdivision (d). This is substantially U.S.C., Title 28, [former] §383 (Injunctions; requisites of order; binding effect).
Note to Subdivision (e). The words "relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee" are words of description and not of limitation.
Compare [former] Equity Rule 73 (Preliminary Injunctions and Temporary Restraining Orders) which is substantially equivalent to the statutes.
For other statutes dealing with injunctions which are continued, see e.g.:
U.S.C., Title 28:
§46 [now 2324] (Suits to enjoin orders of Interstate Commerce Commission to be against United States)
§47 [now 2325] (Injunctions as to orders of Interstate Commerce Commission; appeal to Supreme Court; time for taking)
§378 [former] (Injunctions; when granted)
§379 [now 2283] (Injunctions; stay in State courts)
§380 [now 1253, 2101, 2281, 2284] (Injunctions; alleged unconstitutionality of State statutes; appeal to Supreme Court)
§380a [now 1253, 2101, 2281, 2284] (Injunctions; constitutionality of Federal statute; application for hearing; appeal to Supreme Court)
U.S.C., Title 7:
§216 (Court proceedings to enforce orders; injunction)
§217 (Proceedings for suspension of orders)
U.S.C., Title 15:
§4 (Jurisdiction of courts; duty of district attorney; procedure)
§25 (Restraining violations; procedure)
§26 (Injunctive relief for private parties; exceptions)
§77t(b) (Injunctions and prosecution of offenses)
Notes of Advisory Committee on Rules—1946 Amendment
It has been held that in actions on preliminary injunction bonds the district court has discretion to grant relief in the same proceeding or to require the institution of a new action on the bond. Russell v. Farley (1881) 105 U.S. 433, 466. It is believed, however, that in all cases the litigant should have a right to proceed on the bond in the same proceeding, in the manner provided in Rule 73(f) for a similar situation. The paragraph added to Rule 65(c) insures this result and is in the interest of efficiency. There is no reason why Rules 65(c) and 73(f) should operate differently. Compare §50(n) of the Bankruptcy Act, 11 U.S.C. §78(n), under which actions on all bonds furnished pursuant to the Act may be proceeded upon summarily in the bankruptcy court. See 2 Collier on Bankruptcy (14th ed. by Moore and Oglebay) 1853–1854.
Notes of Advisory Committee on Rules—1948 Amendment
Specific enumeration of statutes dealing with labor injunctions is undesirable due to the enactment of amendatory or new legislation from time to time. The more general and inclusive reference, "any statute of the United States", does not change the intent of subdivision (e) of Rule 65, and the subdivision will have continuing applicability without the need of subsequent readjustment to labor legislation.
The amendment relative to actions of interpleader or in the nature of interpleader substitutes the present statutory reference and will embrace any future amendment to statutory interpleader provided for in Title 28, U.S.C., §2361.
The Act of August 24, 1937, provided for a district court of three judges to hear and determine an action to enjoin the enforcement of any Act of Congress for repugnance to the Constitution of the United States. The provisions of that Act dealing with the procedure for the issuance of temporary restraining orders and interlocutory and final injunctions have been included in revised Title 28, U.S.C., §2284, which, however, has been broadened to apply to all actions required to be heard and determined by a district court of three judges. The amendatory saving clause of subdivision (e) of Rule 65 has been broadened accordingly.
Notes of Advisory Committee on Rules—1966 Amendment
Subdivision (a)(2). This new subdivision provides express authority for consolidating the hearing of an application for a preliminary injunction with the trial on the merits. The authority can be exercised with particular profit when it appears that a substantial part of evidence offered on the application will be relevant to the merits and will be presented in such form as to qualify for admission on the trial proper. Repetition of evidence is thereby avoided. The fact that the proceedings have been consolidated should cause no delay in the disposition of the application for the preliminary injunction, for the evidence will be directed in the first instance to that relief, and the preliminary injunction, if justified by the proof, may be issued in the course of the consolidated proceedings. Furthermore, to consolidate the proceedings will tend to expedite the final disposition of the action. It is believed that consolidation can be usefully availed of in many cases.
The subdivision further provides that even when consolidation is not ordered, evidence received in connection with an application for a preliminary injunction for a preliminary injunction which would be admissible on the trial on the merits forms part of the trial record. This evidence need not be repeated on the trial. On the the other hand, repetition is not altogether prohibited. That would be impractical and unwise. For example, a witness testifying comprehensively on the trial who has previously testified upon the application for a preliminary injunction might sometimes be hamstrung in telling his story if he could not go over some part of his prior testimony to connect it with his present testimony. So also, some repetition of testimony may be called for where the trial is conducted by a judge who did not hear the application for the preliminary injunction. In general, however, repetition can be avoided with an increase of efficiency in the conduct of the case and without any distortion of the presentation of evidence by the parties.
Since an application for a preliminary injunction may be made in an action in which, with respect to all or part of the merits, there is a right to trial by jury, it is appropriate to add the caution appearing in the last sentence of the subdivision. In such a case the jury will have to hear all the evidence bearing on its verdict, even if some part of the evidence has already been heard by the judge alone on the application for the preliminary injunction.
The subdivision is believed to reflect the substance of the best current practice and introduces no novel conception.
Subdivision (b). In view of the possibly drastic consequence of a temporary restraining order, the opposition should be heard, if feasible, before the order is granted. Many judges have properly insisted that, when time does not permit of formal notice of the application to the adverse party, some expedient, such as telephonic notice to the attorney for the adverse party, be resorted to if this can reasonably be done. On occasion, however, temporary restraining orders have been issued without any notice when it was feasible for some fair, although informal, notice to be given. See the emphatic criticisms in Pennsylvania Rd. Co. v. Transport Workers Union, 278 F.2d 693, 694 (3d Cir. 1960); Arvida Corp. v. Sugarman, 259 F.2d 428, 429 (2d Cir. 1958); Lummus Co. v. Commonwealth Oil Ref. Co., Inc., 297 F.2d 80, 83 (2d Cir. 1961), cert. denied, 368 U.S. 986 (1962).
Heretofore the first sentence of subdivision (b), in referring to a notice "served" on the "adverse party" on which a "hearing" could be held, perhaps invited the interpretation that the order might be granted without notice if the circumstances did not permit of a formal hearing on the basis of a formal notice. The subdivision is amended to make it plain that informal notice, which may be communicated to the attorney rather than the adverse party, is to be preferred to no notice at all.
Before notice can be dispensed with, the applicant's counsel must give his certificate as to any efforts made to give notice and the reasons why notice should not be required. This certificate is in addition to the requirement of an affidavit or verified complaint setting forth the facts as to the irreparable injury which would result before the opposition could be heard.
The amended subdivision continues to recognize that a temporary restraining order may be issued without any notice when the circumstances warrant.
Subdivision (c). Original Rules 65 and 73 contained substantially identical provisions for summary proceedings against sureties on bonds required or permitted by the rules. There was fragmentary coverage of the same subject in the Admiralty Rules. Clearly, a single comprehensive rule is required, and is incorporated as Rule 65.1.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Cross References
Antitrust laws, restraining violation, see
Appeals—
Final decisions of district courts to courts of appeals, see
Injunction pending, see rule 62.
Interlocutory orders of district courts to courts of appeals, see
Appellate court's power to suspend, modify or grant pending appeal, see rule 62.
Atomic Energy Act, enjoining violation of act or regulation, see
Bond for injunction pending appeal, see rule 62.
Clayton Act, violation of, see
Copyrights, injunction against infringement, see
Fair Labor Standards Act, restraint of violations of, see
Findings of fact and conclusions of law, necessity for, see rule 52.
Internal revenue, prohibition of suits to restrain assessment or collection, see
Labor-Management Relations Act—
Petition by Attorney General to enjoin strike or lockout, see
Restraining unfair labor practices, see
Patent infringement, see
Securities Act, actions to restrain violations, see
Securities Exchange Act, restraint of violations, see
Three-judge court, composition of, see
Trademarks and trade names, infringement, see
Rule 65.1. Security: Proceedings Against Sureties
Whenever these rules, including the Supplemental Rules for Certain Admiralty and Maritime Claims, require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are known.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff. Aug. 1, 1987.)
Notes of Advisory Committee on Rules—1966
See Note to Rule 65.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Rule 66. Receivers Appointed by Federal Courts
An action wherein a receiver has been appointed shall not be dismissed except by order of the court. The practice in the administration of estates by receivers or by other similar officers appointed by the court shall be in accordance with the practice heretofore followed in the courts of the United States or as provided in rules promulgated by the district courts. In all other respects the action in which the appointment of a receiver is sought or which is brought by or against a receiver is governed by these rules.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949.)
Notes of Advisory Committee on Rules—1946 Amendment
The title of Rule 66 has been expanded to make clear the subject of the rule, i.e., federal equity receivers.
The first sentence added to Rule 66 prevents a dismissal by any party, after a federal equity receiver has been appointed, except upon leave of court. A party should not be permitted to oust the court and its officer without the consent of that court. See Civil Rule 31(e), Eastern District of Washington.
The second sentence added at the beginning of the rule deals with suits by or against a federal equity receiver. The first clause thereof eliminates the formal ceremony of an ancillary appointment before suit can be brought by a receiver, and is in accord with the more modern state practice, and with more expeditious and less expensive judicial administration. 2 Moore's Federal Practice (1938) 2088–2091. For the rule necessitating ancillary appointment, see Sterrett v. Second Nat. Bank (1918) 248 U.S. 73; Kelley v. Queeney (W.D.N.Y. 1941) 41 F.Supp. 1015; see also McCandless v. Furlaud (1934) 293 U.S. 67. This rule has been extensively criticized. First, Extraterritorial Powers of Receivers (1932) 27 Ill.L.Rev. 271; Rose, Extraterritorial Actions by Receivers (1933) 17 Minn.L.Rev. 704; Laughlin, The Extraterritorial Powers of Receivers (1932) 45 Harv.L.Rev. 429; Clark and Moore, A New Federal Civil Procedure—II, Pleadings and Parties (1935) 44 Yale L.J. 1291, 1312–1315; Note (1932) 30 Mich.L.Rev. 1322. See also comment in Bicknell v. Lloyd-Smith (C.C.A.2d, 1940) 109 F.(2d) 527, cert. den. (1940) 311 U.S. 650. The second clause of the sentence merely incorporates the well-known and general rule that, absent statutory authorization, a federal receiver cannot be sued without leave of the court which appointed him, applied in the federal courts since Barton v. Barbour (1881) 104 U.S. 126. See also 1 Clark on Receivers (2d ed.) §549. Under 28 U.S.C. §125, leave of court is unnecessary when a receiver is sued "in respect of any act or transaction of his in carrying on the business" connected with the receivership property, but such suit is subject to the general equity jurisdiction of the court in which the receiver was appointed, so far as justice necessitates.
Capacity of a state court receiver to sue or be sued in federal court is governed by Rule 17(b).
The last sentence added to Rule 66 assures the application of the rules in all matters except actual administration of the receivership estate itself. Since this implicitly carries with it the applicability of those rules relating to appellate procedure, the express reference thereto contained in Rule 66 has been stricken as superfluous. Under Rule 81(a)(1) the rules do not apply to bankruptcy proceedings except as they may be made applicable by order of the Supreme Court. Rule 66 is applicable to what is commonly known as a federal "chancery" or "equity" receiver, or similar type of court officer. It is not designed to regulate or affect receivers in bankruptcy, which are governed by the Bankruptcy Act and the General Orders. Since the Federal Rules are applicable in bankruptcy by virtue of General Orders in Bankruptcy 36 and 37 [following
Notes of Advisory Committee on Rules—1948 Amendment
Title 28, U.S.C., §§754 and 959(a), state the capacity of a federal receiver to sue or be sued in a federal court, and a repetitive statement of the statute in Rule 66 is confusing and undesirable. See also Note to Rule 17(b), supra.
Cross References
Receiver suable without leave of court, see
Rule 67. Deposit in Court
In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing, whether or not that party claims all or any part of the sum or thing. The party making the deposit shall serve the order permitting deposit on the clerk of the court. Money paid into court under this rule shall be deposited and withdrawn in accordance with the provisions of Title 28, U.S.C., §§2041, and 2042; the Act of June 26, 1934, c. 756, §23, as amended (
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff. Aug. 1, 1983.)
Notes of Advisory Committee on Rules—1937
This rule provides for deposit in court generally, continuing similar special provisions contained in such statutes as U.S.C., Title 28, §41(26) [now 1335, 1397, 2361] (Original jurisdiction of bills of interpleader, and of bills in the nature of interpleader). See generally Howard v. United States, 184 U.S. 676 (1902); United States Supreme Court Admiralty Rules (1920), Rules 37 (Bringing Funds into Court), 41 (Funds in Court Registry), and 42 (Claims Against Proceeds in Registry). With the first sentence, compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 22, r. 1(1).
Notes of Advisory Committee on Rules—1948 Amendment
The first amendment substitutes the present statutory reference.
Since the Act of June 26, 1934, was amended by Act of December 21, 1944,
Notes of Advisory Committee on Rules—1983 Amendment
Rule 67 has been amended in three ways. The first change is the addition of the clause in the first sentence. Some courts have construed the present rule to permit deposit only when the party making it claims no interest in the fund or thing deposited. E.g., Blasin-Stern v. Beech-Nut Life Savers Corp., 429 F.Supp. 533 (D. Puerto Rico 1975); Dinkins v. General Aniline & Film Corp., 214 F.Supp. 281 (S.D.N.Y. 1963). However, there are situations in which a litigant may wish to be relieved of responsibility for a sum or thing, but continue to claim an interest in all or part of it. In these cases the deposit-in-court procedure should be available; in addition to the advantages to the party making the deposit, the procedure gives other litigants assurance that any judgment will be collectable. The amendment is intended to accomplish that.
The second change is the addition of a requirement that the order of deposit be served on the clerk of the court in which the sum or thing is to be deposited. This is simply to assure that the clerk knows what is being deposited and what his responsibilities are with respect to the deposit. The latter point is particularly important since the rule as amended contemplates that deposits will be placed in interest-bearing accounts; the clerk must know what treatment has been ordered for the particular deposit.
The third change is to require that any money be deposited in an interest-bearing account or instrument approved by the court.
References in Text
Act of June 26, 1934, c. 756, §23, as amended (
1 See References in Text note below.
Rule 68. Offer of Judgment
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.)
Notes of Advisory Committee on Rules—1937
See 2 Minn. Stat. (Mason, 1927) §9323; 4 Mont. Rev. Codes Ann. (1935) §9770; N.Y.C.P.A. (1937) §177.
For the recovery of costs against the United States, see Rule 54(d).
Notes of Advisory Committee on Rules—1946 Amendment
The third sentence of Rule 68 has been altered to make clear that evidence of an unaccepted offer is admissible in a proceeding to determine the costs of the action but is not otherwise admissible.
The two sentences substituted for the deleted last sentence of the rule assure a party the right to make a second offer where the situation permits—as, for example, where a prior offer was not accepted but the plaintiff's judgment is nullified and a new trial ordered, whereupon the defendant desires to make a second offer. It is implicit, however, that as long as the case continues—whether there be a first, second or third trial—and the defendant makes no further offer, his first and only offer will operate to save him the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered. In the case of successive offers not accepted, the offeror is saved the costs incurred after the making of the offer which was equal to or greater than the judgment ultimately obtained. These provisions should serve to encourage settlements and avoid protracted litigation.
The phrase "before the trial begins", in the first sentence of the rule, has been construed in Cover v. Chicago Eye Shield Co. (C.C.A.7th, 1943) 136 F.(2d) 374, cert. den. (1943) 320 U.S. 749.
Notes of Advisory Committee on Rules—1966 Amendment
This logical extension of the concept of offer of judgment is suggested by the common admiralty practice of determining liability before the amount of liability is determined.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Rule 69. Execution
(a)
(b)
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987.)
Notes of Advisory Committee on Rules—1937
Note to Subdivision (a). This follows in substance U.S.C., Title 28, [former] §§727 (Executions as provided by State laws) and 729 [now Title 42, §1988] (Proceedings in vindication of civil rights), except that, as in the similar case of attachments (see note to Rule 64), the rule specifies the applicable State law to be that of the time when the remedy is sought, and thus renders unnecessary, as well as supersedeas, local district court rules.
Statutes of the United States on execution, when applicable, govern under this rule. Among these are:
U.S.C., Title 12:
§91 (Transfers by bank and other acts in contemplation of insolvency)
§632 (Jurisdiction of United States district courts in cases arising out of foreign banking jurisdiction where Federal reserve bank a party)
U.S.C., Title 19:
§199 (Judgments for customs duties, how payable)
U.S.C., Title 26:
§1610(a) [former] (Surrender of property subject to distraint)
U.S.C., Title 28:
§122 [now 1656] (Creation of new district or transfer of territory; lien)
§350 [now 2101] (Time for making application for appeal or certiorari; stay pending application for certiorari)
§489 [now 547] (District Attorneys; reports to Department of Justice)
§574 [now 1921] (Marshals, fees enumerated)
§786 [former] (Judgments for duties; collected in coin)
§811 [now 1961] (Interest on judgments)
§838 [former] (Executions; run in all districts of State)
§839 [now 2413] (Executions; run in every State and Territory)
§840 [former] (Executions; stay on conditions), as modified by Rule 62(b).
§841 [former] (Executions; stay of one term), as modified by Rule 62(f)
§842 [now 2006] (Executions; against officers of revenue in cases of probable cause), as incorporated in Subdivision (b) of this rule
§843 [now 2007] (Imprisonment for debt)
§844 [now 2007] (Imprisonment for debt; discharge according to State laws)
§845 [now 2007] (Imprisonment for debt; jail limits)
§846 [now 2005] (Fieri Facias; appraisal of goods; appraisers)
§847 [now 2001] (Sales; real property under order or decree)
§848 [now 2004] (Sales; personal property under order or decree)
§849 [now 2002] (Sales; necessity of notice)
§850 [now 2003] (Sales; death of marshal after levy or after sale)
§869 [former] (Bond in former error and on appeal) as incorporated in Rule 73(c)
§874 [former] (Supersedeas), as modified by Rules 62(d) and 73(d)
U.S.C., Title 31:
§195 [now 3715] (Purchase on execution)
U.S.C., Title 33:
§918 (Collection of defaulted payments)
U.S.C., Title 49:
§74(g) [former] (Causes of action arising out of Federal control of railroads; execution and other process)
Special statutes of the United States on exemption from execution are also continued. Among these are:
U.S.C., Title 2:
§118 (Actions against officers of Congress for official acts)
U.S.C., Title 5:
§729 [see 8346, 8470] (Federal employees retirement annuities not subject to assignment, execution, levy, or other legal process)
U.S.C., Title 10:
§610 [now 3690, 8690] (Exemption of enlisted men from arrest on civil process)
U.S.C., Title 22:
§21(h) [see 4060] (Foreign service retirement and disability system; establishment; rules and regulations; annuities; nonassignable; exemption from legal process)
U.S.C., Title 33:
§916 (Assignment and exemption from claims of creditors) Longshoremen's and Harborworkers' Compensation Act)
U.S.C., Title 38:
§54 [see 5301] (Attachment, levy or seizure of moneys due pensioners prohibited)
§393 [former] (Army and Navy Medal of Honor Roll; pensions additional to other pensions; liability to attachment, etc.) Compare Title 34, §365(c) (Medal of Honor Roll; special pension to persons enrolled)
§618 [see 5301] (Benefits exempt from seizure under process and taxation; no deductions for indebtedness to United States)
U.S.C., Title 43:
§175 (Exemption from execution of homestead land)
U.S.C., Title 48:
§1371o (Panama Canal and railroad retirement annuities, exemption from execution and so forth)
Notes of Advisory Committee on Rules—1946 Supplementary Note
With respect to the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. [App.] §501 et seq.) see Notes to Rules 62 and 64 herein.
Notes of Advisory Committee on Rules—1948 Amendment
The amendment substitutes the present statutory reference.
Notes of Advisory Committee on Rules—1970 Amendment
The amendment assures that, in aid of execution on a judgment, all discovery procedures provided in the rules are available and not just discovery via the taking of a deposition. Under the present language, one court has held that Rule 34 discovery is unavailable to the judgment creditor. M. Lowenstein & Sons, Inc. v. American Underwear Mfg. Co., 11 F.R.D. 172 (E.D.Pa. 1951). Notwithstanding the language, and relying heavily on legislative history referring to Rule 33, the Fifth Circuit has held that a judgment creditor may invoke Rule 33 interrogatories. United States v. McWhirter, 376 F.2d 102 (5th Cir. 1967). But the court's reasoning does not extend to discovery except as provided in Rules 26–33. One commentator suggests that the existing language might properly be stretched to all discovery, 7 Moore's Federal Practice 69.05[1] (2d ed. 1966), but another believes that a rules amendment is needed. 3 Barron & Holtzoff, Federal Practice and Procedure 1484 (Wright ed. 1958). Both commentators and the court in McWhirter are clear that, as a matter of policy, Rule 69 should authorize the use of all discovery devices provided in the rules.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Cross References
Execution against revenue officers, see
Executions and judicial sales, see
Executions in favor of United States, see
Power to issue writ of execution, see
Seizure of person or property for satisfaction of judgment, see rule 64.
Stay of execution of judgment, see rule 62.
Writ of execution for delivery of possession, see rule 70.
Rule 70. Judgment for Specific Acts; Vesting Title
If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the district, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.
Notes of Advisory Committee on Rules—1937
Compare [former] Equity Rules 7 (Process, Mesne and Final), 8 (Enforcement of Final Decrees), and 9 (Writ of Assistance). To avoid possible confusion, both old and new denominations for attachment (sequestration) and execution (assistance) are used in this rule. Compare with the provision in this rule that the judgment may itself vest title, 6 Tenn.Ann.Code (Williams, 1934), §10594; 2 Conn.Gen.Stat. (1930), §5455; N.M.Stat.Ann. (Courtright, 1929), §117–117; 2 Ohio Gen.Code Ann. (Page, 1926), §11590; and England, Supreme Court of Judicature Act (1925), §47.
Cross References
Contempts, power of court, see
Execution, see rule 69.
Power to issue writs, see
Remedies of attachment and sequestration, see rule 64.
Rule 71. Process in Behalf of and Against Persons Not Parties
When an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if a party.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
Notes of Advisory Committee on Rules—1937
Compare [former] Equity Rule 11 (Process in Behalf of and Against Persons Not Parties). Compare also Terrell v. Allison, 21 Wall. 289, 22 L.Ed. 634 (U.C., 1875); Farmers' Loan and Trust Co. v. Chicago and A. Ry. Co., 44 Fed. 653 (C.C.Ind., 1890); Robert Findlay Mfg. Co. v. Hygrade Lighting Fixture Corp., 288 Fed. 80 (E.D.N.Y., 1923); Thompson v. Smith, Fed.Cas.No. 13,977 (C.C.Minn., 1870).
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Cross References
Execution, see rule 69.
Parties generally, see rules 17 to 25.
Power to issue writs, see
Process generally, see rules 4, 4.1.
Writs of attachment, sequestration and equivalent remedies, see rule 64.