Article XIX - Replevin
(735 ILCS 5/Art. XIX heading) ARTICLE XIX REPLEVIN
(735 ILCS 5/19‑101) (from Ch. 110, par. 19‑101)
Sec. 19‑101. When brought. Whenever any goods or chattels have been wrongfully distrained, or otherwise wrongfully taken or are wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels, by the owner or person entitled to their possession.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑102) (from Ch. 110, par. 19‑102)
Sec. 19‑102. When not available. No action of replevin shall lie on behalf of a defendant against whom a judgment or attachment is in the process of enforcement, to recover goods or chattels seized by virtue thereof, unless such goods and chattels are exempted, by law, from such enforcement of the judgment or attachment; nor shall an action of replevin lie for such goods and chattels at the action of any other person, unless such other person has, at the time, a right to reduce the goods taken to his or her possession.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑103) (from Ch. 110, par. 19‑103)
Sec. 19‑103. Venue. The venue provisions applicable to other civil cases shall apply to actions of replevin; and in addition an action of replevin may be brought in any county in which the goods or chattels or any part of them are located.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑104) (from Ch. 110, par. 19‑104)
Sec. 19‑104. Complaint. An action of replevin shall be commenced by the filing of a verified complaint which describes the property to be replevied and states that the plaintiff in such action is the owner of the property so described, or that he or she is then lawfully entitled to the possession thereof, and that the property is wrongfully detained by the defendant, and that the same has not been taken for any tax, assessment, or fine levied by virtue of any law of this State, against the property of such plaintiff, or against him or her individually, nor seized under any lawful process against the goods and chattels of such plaintiff subject to such lawful process, nor held by virtue of any order for replevin against such plaintiff.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑105) (from Ch. 110, par. 19‑105)
Sec. 19‑105. Notice. The defendant shall be given 5 days written notice in the manner required by rule of the Supreme Court, of a hearing before the court to contest the entry of an order for replevin. No order for replevin may be entered nor may property be seized pursuant to an order for replevin prior to such notice and hearing except as provided in Section 19‑106 of this Act.
As to any particular property, the right to notice and hearing established in this Section may not be waived by any consumer. As used in this Section, a consumer is an individual who obtained possession of the property for personal, family, household, or agricultural purposes.
Any waiver of the right to notice and hearing established in this Section must be in writing and must be given voluntarily, intelligently, and knowingly.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑106) (from Ch. 110, par. 19‑106)
Sec. 19‑106. Exception to requirement of notice. Notice to the defendant is not required if the plaintiff establishes and the court finds as a matter of record and supported by evidence that summary seizure of the property is justified by reason of necessity to:
(1) protect the plaintiff from an immediately impending harm which will result from the imminent destruction or concealment of the disputed property in derogation of the plaintiff's rights in the property;
(2) protect the plaintiff from an immediately impending harm which will result from the imminent removal of the disputed property from the State, taking into consideration the availability of judicial remedies in the event of such removal;
(3) protect the plaintiff from an immediately impending harm which will result from the perishable nature of the disputed property under the particular circumstances at the time of the action;
(4) protect the plaintiff from an immediately impending harm which will result from the imminent sale, transfer or assignment of the disputed property to the extent such sale, transfer or assignment is fraudulent or in derogation of the plaintiff's rights in the property;
(5) recover the property from a defendant who has obtained possession by theft.
At an ex parte hearing to determine if notice is not required, the court shall examine the evidence on each element required by this Section or any written waiver of rights presented by the plaintiff. If the court finds that notice is not required, or that the waiver is in accordance with law, it shall order a hearing as soon as practicable on the entry of an order for replevin.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑107) (from Ch. 110, par. 19‑107)
Sec. 19‑107. Hearing for entry of order. At the hearing on the entry of an order for replevin, which may be a hearing to contest pursuant to notice under Section 19‑105 of this Act or an ex parte hearing pursuant to a finding under Section 19‑106 of this Act, the court shall review the basis of the plaintiff's claim to possession. If the plaintiff establishes a prima facie case to a superior right to possession of the disputed property, and if the plaintiff also demonstrates to the court the probability that the plaintiff will ultimately prevail on the underlying claim to possession, the court shall so find as a matter of record and an order for replevin shall be entered by the court.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑108) (from Ch. 110, par. 19‑108)
Sec. 19‑108. Direction of order. The order shall be directed to the sheriff or other proper officer of the proper county, to serve; and for the purpose only of service as summons shall be directed also to any person authorized to serve summons.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑109) (from Ch. 110, par. 19‑109)
Sec. 19‑109. Order. The order for replevin shall require the sheriff, or other officer to whom it is directed to take the property, describing it as in the complaint, from the possession of the defendant, and deliver the same to the plaintiff unless such defendant executes a bond and security as hereinafter provided, and to summon the defendant to answer the complaint or otherwise appear in the action, or in case the property or any part thereof is not found and delivered to the sheriff or other officer, to answer to the plaintiff for the value of the same. The order for replevin may be served as a summons for a trial on the merits of the case by any person authorized to serve summons.
(Source: P.A. 83‑707.) |
(735 ILCS 5/19‑110) (from Ch. 110, par. 19‑110)
Sec. 19‑110. Several counties involved. Additional certified copies of the order for replevin may be issued by the clerk of court, upon the request of the plaintiff, to be used in several counties.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑111) (from Ch. 110, par. 19‑111)
Sec. 19‑111. Additional copies of order. When it appears by the return of the officer that any defendant or the property described in the order or any part thereof, is not found, additional certified copies directing the officer to summon such defendant and to take the property from the possession of the defendant and deliver the same to the plaintiff, may be issued by the clerk of court on the request of the plaintiff until such defendant is served or until such property is taken.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑112) (from Ch. 110, par. 19‑112)
Sec. 19‑112. Replevin bond. Before the service of the order for replevin the plaintiff or some one else on his or her behalf shall give to the sheriff or other officer a bond with sufficient security in double the value of the property about to be replevied, conditioned that he or she will prosecute such action to effect and without delay and make return of the property to the defendant if return of the property shall be awarded or will deliver the same to the intervening petitioner should it be found that the property belongs to him or her, and save and keep harmless such sheriff or other officer as the case may be, in replevying such property and further conditioned for the payment of all costs and damages occasioned by wrongfully obtaining out the order for replevin, and if the sureties on such bond at any time before trial becomes insolvent, an order shall be entered requiring good and sufficient replevin bond to be filed, and if the same is not so filed within the time fixed by the court, the action shall be dismissed.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑113) (from Ch. 110, par. 19‑113)
Sec. 19‑113. Return. Such officer shall return the bond so taken by the officer, together with the certified copy of the order to the clerk of court who issued such certified copy of the order.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑114) (from Ch. 110, par. 19‑114)
Sec. 19‑114. Failure to take and return bond. If the sheriff or other officer fails to take and return the bond, as required by Article XIX of this Act, or returns an insufficient bond, he or she shall be liable to the party injured for all damages such party may sustain by reason of such neglect, which may be recovered in an action against the sheriff or other officer, or by an action upon the sheriff's or other officer's official bond.
(Source: P.A. 83‑707.) |
(735 ILCS 5/19‑115) (from Ch. 110, par. 19‑115)
Sec. 19‑115. Limitation. No sheriff or other officer shall be liable, under the preceding section, unless the bond was insufficient when taken, nor unless action is commenced against him or her or upon his or her bond, within 3 years after the cause of action accrues.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑116) (from Ch. 110, par. 19‑116)
Sec. 19‑116. Service of order. Upon the bond being given the sheriff or other proper officer shall forthwith serve the certified copy of the order by seizing the property therein mentioned and by serving such order upon the defendant as summons is served in other civil cases.
The order for replevin issued as provided in Section 19‑108 of this Act, may be served as a summons upon defendants wherever they may be found in the State by any person authorized to serve summons in other civil cases; but property may be taken from the possession of a defendant under a replevin order only in the county in which the order is entered and by a proper officer of the county.
The officer serving such certified order having taken the property or any part thereof shall forthwith deliver such property to the plaintiff unless the defendant executes a bond and security approved by such officer, before such property is actually delivered to the plaintiff. Such bond shall be given in an amount double the value of such property and conditioned that the defendant will appear in and defend the action, and will deliver such property in accordance with the order of the court, in as good condition as it was when the action was commenced, and that the defendant will pay only those costs and damages that may be incurred during the time the property is out of the possession of the officer and back in his or her possession and adjudged against the defendant in such action.
Such bond shall be returned to the court by the officer serving the order on the day such order is returnable.
(Source: P.A. 83‑707.) |
(735 ILCS 5/19‑117) (from Ch. 110, par. 19‑117)
Sec. 19‑117. Service upon defendant. It shall be the duty of the officer having an order for replevin, to serve the same upon the defendant, whether the property is found or delivered to him or her, or not, unless, when none of the property is found, the officer is otherwise directed by the plaintiff or his or her attorney or agent.
If the defendant fails to deliver up to the sheriff the chattel which is the subject of the order for replevin and the plaintiff has a reasonable belief as to where the chattel is sequestered, the court may authorize the sheriff to use reasonable force to enter into the property to recover same upon such terms and conditions as the court may direct.
(Source: P.A. 95‑661, eff. 1‑1‑08.)
(735 ILCS 5/19‑118) (from Ch. 110, par. 19‑118)
Sec. 19‑118. Notice by publication. If it appears by affidavit of the plaintiff, his or her attorney or agent, or by the return of the officer, that any defendant in such action is not a resident of this State, or has departed from this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served on him or her, notice may be given as provided by law in cases of attachment, and with like effect.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑119) (from Ch. 110, par. 19‑119)
Sec. 19‑119. Answer or otherwise appear. The defendant shall answer or otherwise appear as in other civil cases.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑120) (from Ch. 110, par. 19‑120)
Sec. 19‑120. When property not found. When the property or any part thereof is not found or delivered as above stated, and the defendant is summoned or enters his or her appearance, the plaintiff may proceed, under the original or amended complaint, as in an action for the wrongful taking and detention of such property or so much thereof as is not found and delivered to the sheriff or other officer, and as to the property not found and delivered, the plaintiff, if he or she recovers, shall be entitled to judgment for the value thereof or his or her interest therein, and such damages as he or she has sustained by reason of the wrongful taking and detention.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑121) (from Ch. 110, par. 19‑121)
Sec. 19‑121. Distress for rent. It shall be sufficient for the defendant, in all cases of replevin for distress taken for rent, to allege generally without particularly setting forth the tenure or title to the lands whereon such distress was taken.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑122) (from Ch. 110, par. 19‑122)
Sec. 19‑122. Seeking wrong remedy not fatal. Where relief is sought under Article XIX of this Act and the court determines, on motion directed to the pleadings, or on motion for summary judgment or upon trial, that the plaintiff has pleaded or established facts which entitle the plaintiff to relief but that the plaintiff has sought the wrong remedy, the court shall permit the pleadings to be amended, on just and reasonable terms, and the court shall grant the relief to which the plaintiff is entitled on the amended pleadings or upon the evidence. In considering whether a proposed amendment is just and reasonable, the court shall consider the right of the defendant to assert additional defenses, to demand a trial by jury, to plead a counterclaim or third party complaint, and to order the plaintiff to take additional steps which were not required under the pleadings as previously filed.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑123) (from Ch. 110, par. 19‑123)
Sec. 19‑123. Judgment against plaintiff. If the plaintiff in an action of replevin obtains an order for replevin and the right of property is adjudged against the plaintiff, judgment shall be entered for a return of the property if such property has been delivered to the plaintiff, and damages for the use thereof from the time it was taken until a return thereof is made, unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, in which event judgment may be entered against the plaintiff for costs and such damage as the defendant has sustained; or if the property was held for the payment of any money, the judgment may be in the alternative that the plaintiff pay the amount for which the same was rightfully held, with proper damages, within a given time, or make return of the property in case such property was delivered to the plaintiff.
(Source: P.A. 95‑661, eff. 1‑1‑08.)
(735 ILCS 5/19‑124) (from Ch. 110, par. 19‑124)
Sec. 19‑124. Intervention. In replevin cases pending in circuit courts, any person other than the defendant claiming the property replevied may intervene, verifying the petition by affidavit. The court shall direct a trial of the right of property as in other cases and in case judgment is rendered for the intervening party and it is further found that such party is entitled to the possession of all or any part of the property, judgment shall be entered accordingly and the property to which the claimant is entitled ordered to be delivered to such claimant together with payment of the claimant's costs. In case judgment is entered for the claimant, although he or she is not then entitled to possession of the property, he or she shall be entitled to his or her costs. In case judgment is entered for the plaintiff, the plaintiff shall be entitled to recover the plaintiff's costs from the claimant. If the claimant is a non‑resident of the State, he or she shall file security for costs as required of non‑resident plaintiffs.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑125) (from Ch. 110, par. 19‑125)
Sec. 19‑125. Judgment for plaintiff. If judgment is entered in favor of the plaintiff in replevin, the plaintiff shall recover damages for the detention of the property while the same was wrongfully detained by the defendant.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑126) (from Ch. 110, par. 19‑126)
Sec. 19‑126. Damages. In either case provided for in Sections 19‑124 and 19‑125 of this Act, if the case is tried by a jury, the damages may be assessed by such jury, but if the plaintiff takes a voluntary dismissal or an involuntary dismissal is ordered by the court or judgment is entered for defendant without a trial, the damages may be assessed by the court or by a jury impaneled for that purpose.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑127) (from Ch. 110, par. 19‑127)
Sec. 19‑127. Action on bond. If at any time the conditions of the bond required by Section 19‑112 of this Act, or of the bond provided for in Section 19‑116 of this Act are broken, the sheriff or other officer or plaintiff in the name of the sheriff, for his or her own use, or the defendant or intervening party, as the case may be, may proceed and maintain an action on such bond for the recovery of all damages and costs, as have been sustained in consequence of the breach of such condition.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑128) (from Ch. 110, par. 19‑128)
Sec. 19‑128. Defense to action on bond. If the merits of the case have not been determined in the trial of the action in which the bond was given, the defendant in the action upon the replevin bond may plead that fact and his or her title to the property in dispute, in the action of replevin.
(Source: P.A. 82‑280.) |
(735 ILCS 5/19‑129)
Sec. 19‑129. Mobile homes. If the chattel which is the subject of the replevin action is a mobile home and is occupied by the defendant or other persons, the court may issue a forcible order directing the sheriff to remove the personal property of the defendant or occupants from the mobile home provided that the defendants and unknown occupants are given notice of plaintiff's intent to seek a forcible order and that upon entry of said order for possession, the execution is stayed for a reasonable time as determined by the court so as to allow the defendants and unknown occupants to remove their property from the mobile home.
(Source: P.A. 95‑661, eff. 1‑1‑08.)