60-1005. Replevin; claim for possession of property.
60-1005
60-1005. Replevin; claim for possession of property.The plaintiff, in an action to recover possession of specific personalproperty, may at any time before the judgment is rendered claim immediatepossession thereof under the following procedure:
(a) Affidavit. The plaintiff shall file an affidavit, unless theplaintiff's petition has been verified, which in either event shall show:
(1) That the plaintiff is the owner of the property claimed, sufficientlydescribing it, or is lawfully entitled to the possession thereof,
(2) that it is wrongfully detained by the defendant, or if it is held byan officer under legal process, that demand for the same has been made andrefused, and
(3) the estimated value thereof.
(b) Hearing, notice; bond. Except as otherwise provided herein, afterfiling the affidavit or verified petition, the plaintiff shall apply to thecourt for an order for the delivery of the property to the plaintiffs in themanner prescribed by subsection (b) of K.S.A. 60-207, and amendments thereto,and the motion made thereunder shall be served upon the defendant pursuant toK.S.A. 60-205, and amendments thereto. After a hearing and presentation ofevidence on plaintiff's motion, and if the judge is satisfied as to theprobable validity of plaintiff's claim and that delivery of the property to theplaintiff is in the interest of justice and will properly protect the interestsof all the parties, the judge may enter or cause to be entered an order for thedelivery of the property to the plaintiff.
Notwithstanding the foregoing provisions of this subsection, the judgemay enter or cause to be entered the order for delivery of property afteran ex parte hearing and without notice to and the opportunity for ahearing by the defendant, only if the judge is satisfied as to the probablevalidity of the following allegations to be contained in plaintiff'saffidavit or verified petition:
(1) Possession of the property by the plaintiff is directly necessary tosecure an important governmental or general public interest; and
(2) There is a special need for very prompt action due to the immediatedanger that the defendant will destroy or conceal the property.
In lieu of the foregoing procedure providing for the issuance of an order forthe delivery of the property, the plaintiff may apply to the court for arestraining order directed to the defendant, imposing such conditions andrestrictions as the court deems necessary to protect the property during thependency of the action and to protect the court's jurisdiction over suchproperty. Such restraining order may be issued without the requirement that theplaintiff file a bond as required for issuing an order for the delivery of theproperty.
Prior to the issuance of the order for delivery of the property, theplaintiff shall file with the clerk of the court in which the action isbrought a bond in not less than double the amount of the value of theproperty as stated in the affidavit or verified petition, or as found bythe court at the hearing on plaintiff's motion, with one or more sufficientsureties. It shall be to the effect that plaintiff shall duly prosecute theaction, and pay all costs and damages that may be awarded against theplaintiff, and that if the plaintiff is given possession of the property, theplaintiff will return it to defendant if it be so adjudged. If the bond isfound to be sufficient, the judge of the district court shall approve the bondand note the judge's approval thereon. The defendant may challenge thesufficiency of the bond as provided in subsection (b) of K.S.A. 60-705, andamendments thereto.
(c) Property in custodia legis. If the property the possession ofwhich is sought is in the custody of an officer under any legal process itshall nevertheless be subject to replevin under this section, but if thesame is in the custody of any officer under any process issued out of ajudicial proceeding, the petition or affidavit and bond shall be filed inthe same proceeding out of which such process issued.
(d) Order for delivery of property. The order for the delivery ofthe property to the plaintiff shall be delivered to the sheriff of anycounty in the state in which the property is located. The order shall statethe names of the parties, the description of the property and the value asset out in plaintiff's affidavit or verified petition, or as found by thecourt at the hearing on plaintiff's motion pursuant to subsection (b). Itshall command the sheriff to take immediate possession of the property anddeliver it to plaintiff at the expiration of 24 hours unless there iscompliance with the requirements of subsection (f) and make return of the orderon the day named therein. If the sheriff is a party defendant, then the ordershall be served upon the sheriff by the clerk of the court.
(e) Return and execution of order. (1) Obtaining possession.In the execution of the order the sheriff may break open any building orenclosure in which the property is located, if the sheriff cannot otherwiseobtain possession of the property or entrance.
(2) Execution. The sheriff shall execute the order by takingpossession of the property described therein, and serving a copy on theperson charged with the unlawful detainer in the same manner as forpersonal service if the person can be found in the county.
(3) Return. The return day of the order of delivery shall be 20 daysafter it is issued.
(f) Redelivery bond. The defendant, within 24 hours after service of acopy of the order, may deliver to the sheriff a bond to be approved by thesheriff, in not less than double the amount of the value of the property asstated in the order, with one or more sufficient sureties, and the sheriffshall return the property to the defendant. The bond shall be to the effectthat the defendant will deliver the property to the plaintiff if it be soadjudged, and will pay all costs and damages that may be adjudged against thedefendant. The sheriff shall file the bond with the clerk after noting approvalthereon. If the defendant is a public officer, board, or government agency,such officer, board or agency, in lieu of giving a redelivery bond, may retainpossession of the property seized by filing with the clerk within the timerequired for giving the redelivery bond a writing certifying that the publichealth, safety or welfare would be jeopardized or impaired if the plaintiffacquired possession of the property prior to final judgment, in which casehearing may be had on the issue of public interest at the instance of anyparty.
(g) Judgment in action. In an action to recover the possession ofpersonal property, judgment for the plaintiff may be for possession or forthe recovery of possession, or the value thereof in case a delivery cannotbe had, and for damages for the detention. If the property has beendelivered to the plaintiff and the defendant claims a return thereof,judgment for the defendant may be for a return of the property, or thevalue thereof in case a return cannot be had, and damages for taking andwithholding the same.
History: L. 1963, ch. 303, 60-1005; L. 1973, ch. 235, § 1; L. 1992,ch. 314, § 10; July 1.