71-3-305. Proceeding if claim disputed. (1) If any or all of the claims presented and claiming preference under this part are disputed by either the debtor or a creditor, the person presenting the claim shall commence an action within 10 days after notice of the dispute is served upon the claimant, as provided in subsection (2), for the recovery of the claim. The officer shall retain possession of as much of the proceeds of the sale as may be necessary to satisfy the claim and costs until the final determination of the action. If judgment is given, the costs are a preferred claim, which may include reasonable attorney fees.
(2) The debtor or creditor intending to dispute any claim presented under the provisions of 71-3-303 shall, within 10 days after receiving notice of the claim, serve upon the claimant and officer holding the execution, attachment, or other writ a statement in writing, verified by the oath of the debtor or person disputing the claim for services, setting forth that no part of the claim, not exceeding a sum specified, is justly due from the debtor to the claimant for services rendered within the 4 months preceding the levy of the execution, attachment, or other writ.
(3) If the claimant brings suit on a claim that is disputed in part only and fails to recover a sum exceeding that which was admitted to be due, the claimant may not recover costs, but costs must be adjudged against the claimant. If the claimant fails to bring suit upon a claim that is disputed in part only, the claimant is considered to have waived the disputed portion of the claim.
History: (1)En. 2052, 5th Div. Comp. Stat. 1887; amd. Sec. 2153, C. Civ. Proc. 1895; re-en. Sec. 7305, Rev. C. 1907; re-en. Sec. 8355, R.C.M. 1921; re-en. Sec. 8355, R.C.M. 1935; amd. Sec. 3, Ch. 109, L. 1943; Sec. 45-605, R.C.M. 1947; (2), (3)En. Sec. 2053, 5th Div. Comp. Stat. 1887; re-en. Sec. 2154, C. Civ. Proc. 1895; re-en. Sec. 7306, Rev. C. 1907; re-en. Sec. 8356, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 1207; re-en. Sec. 8356, R.C.M. 1935; amd. Sec. 4, Ch. 109, L. 1943; Sec. 45-606, R.C.M. 1947; R.C.M. 1947, 45-605(part), 45-606; amd. Sec. 2270, Ch. 56, L. 2009.
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